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EXHIBIT
10.40
FIRST AMENDMENT TO LICENSE
AGREEMENT
THIS FIRST
AMENDMENT TO LICENSE AGREEMENT (hereinafter referred to as
“First Amendment”) is made and entered into this 18
th day of November, 1998, by and between GEORGIA TECH
RESEARCH CORPORATION, a non-profit corporation organized and
existing under the laws of the State of Georgia and with offices
at Georgia Institute of Technology, Centennial Research
Building, Atlanta, Georgia 30332-0415 (hereinafter referred to
as “GTRC”) and RESTORE THERAPEUTICS, INC., a Georgia
corporation with offices at Suite 400, 900 Peachtree Street,
Atlanta, Georgia 30309 (hereinafter referred to as
“RT”).
W I T N E S S E T
H
WHEREAS
GTRC and RT entered into a License Agreement, dated the 5
th day of March, 1998, for an invention entitled
“Poly (Vinyl Alcohol) Cryogel” and the methods
employed in the production thereof (hereinafter referred to as
the “Invention”), which is the subject of GTRC
Invention Disclosure No. 1837, (hereinafter referred to as
“License Agreement”) and incorporated herein by
reference, and
WHEREAS, GTRC and
RT have agreed to amend the terms of said License Agreement;
and
NOW, THEREFORE, in
consideration of the mutual covenants and agreements set forth
herein and the sum of one dollar ($1.00) paid to GTRC by RT, the
receipt and sufficiency of which is hereby acknowledged, and
intending to be legally bound, GTRC and RT do hereby mutually agree
to amend the License Agreement as follows:
1. Section 1 of the
License Agreement is hereby amended by deleting subsections 1.1 and
1.4, more specifically “Net Selling Price” and
“Sales” within the list of Definitions and by adding to
subsection 1.3 the words “product or” after the word
“any.”:
2. Subsection 2.1 of License
Agreement is hereby amended by deleting the first sentence thereof
in its entirety and inserting a new first sentence in lieu thereof
as follows:
“2.1 With
respect to the Technology and to the full extent of GTRC’s
rights therein, GTRC hereby grants to RT an exclusive,
transferable, royalty-free license, with a right of sublicense, to
make, sell, distribute, promote, develop, modify, and use Products
throughout the Territory.
3. Subsection 3.1.2 of
License Agreement is hereby amended by deleting it in its entirety.
GTRC acknowledges timely receipt of the monies referred to in
Subsection 3.1.1.
4. Subsection 3.2 of License
Agreement is hereby amended by deleting it in its entirety and
inserting a new subsection 3.2 in lieu thereof as
follows:
“3.2 As
additional consideration RT shall issue to GTRC a sufficient number
of shares of the common stock of RT so that GTRC will own Six
percent (6%) of the total number of such shares issued and
outstanding by RT. Thereafter, until the occurrence of a
“Capital Infusion
Event” (hereafter
defined) should RT sell or otherwise issue additional shares of
stock, a proportionate number of shares will be issued to GTRC so
that Six percent (6%) ownership interest in RT by GTRC shall
be maintained after the sale or issuance. Following the occurrence
of a Capital Infusion Event and until the occurrence of a Liquidity
Event (hereinafter defined), in any subsequent issuance of common
stock (other than the grant of stock or options to employees) GTRC
shall have the right to purchase an amount of shares, on the same
terms and conditions as applies to the shares to be issued, as
would be necessary to result in GTRC’s maintaining its
percentage ownership of the Corporation. This Subsection 3.2 shall
terminate upon the occurrence of a Liquidity Event. A
“Capital Infusion Event” means the issuance of less
than 50% of the equity of RT at the closing of a transaction in
which the amount agreed to be paid for such equity equals or
exceeds Two Million U.S. Dollars ($2,000,000). “Liquidity
Event” shall mean (i) a sale of substantially all of the
assets of the Corporation; (ii) a merger of the Corporation
other than to change the state of incorporation or to change the
Corporation from a Corporation into some other form of legal
entity; (iii) a liquidation, dissolution or winding up of the
Corporation; (iv) a sale by the holders thereof in a single
transaction or related transactions of 80% or more of the then
outstanding equity of the Corporation to a person who is not a
holder of equity in the Corporation; (v) the issuance by the
Corporation of equity in exchange for total equity of $10,000,000
or more in one or more transactions; or (vi) an Initial Public
Offering (as hereafter defined). “Initial Public
Offering” shall mean a firm commitment underwritten public
offering of shares of Common Stock.
5. Section 3 of the
License Agreement is hereby amended by inserting a new subsection
3.3 as follows:
“3.3 Until
the occurrence of a Liquidity Event, GTRC agrees not to vote its
shares of stock in RT. In the event that such provision is found to
be unenforceable, until the occurrence of a Liquidity Event, GTRC
shall vote its stock in proportion with all other votes in
connection with any matter.”
6. Subsection 4.1 of License
Agreement is hereby amended by deleting in its entirety and
inserting a new subsection 4.1 in lieu thereof as
follows:
“4.1 Subject
to this Paragraph, RT may grant sublicenses, provided that each
sublicense contains a provision that such sublicense and the rights
thereby granted are personal to the sublicensee thereunder and such
sublicense cannot be further assigned or sublicens
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