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EXHIBIT 10.48
CRITICAL THERAPEUTICS, INC.
AMENDMENT NO. 2 TO CONSULTING AGREEMENT, AMENDMENT NO. 1 TO
APPROVAL AGREEMENT AND MUTUAL RELEASE
This Amendment No. 2 to Consulting Agreement, Amendment No. 1
to
Approval Agreement, and Mutual Release dated January 29, 2007
(this "Amendment")
to the Consulting Agreement dated January 31, 2001 between
Critical
Therapeutics, Inc., a Delaware corporation (the "Company"), and
Kevin J. Tracey,
M.D. (the "Consultant"), as amended on January 16, 2003 (the
"Consulting
Agreement") and to that certain Approval Agreement dated March
7, 2006 by and
between the Company and the Consultant (the "Approval
Agreement") is hereby
entered into by the Company and the Consultant. Each of the
Company and the
Consultant are sometimes hereinafter referred to as a "Party"
and collectively
as the "Parties".
RECITALS:
A. The Company and the Consultant are parties to (i) the
Consulting
Agreement, (ii) the Approval Agreement, and (iii) that certain
Confidentiality
Agreement dated as of March 7, 2006 by and between the Company
and the
Consultant (the "Founder Confidentiality Agreement").
B. The Consultant is a stockholder of Innovative Metabolics,
Inc., a
Delaware corporation ("IMI").
C. The Company and IMI are parties to (i) that certain
Confidentiality
Agreement dated as of March 7, 2006 (the "Original
Confidentiality Agreement"),
(ii) that certain Confidential Disclosure Agreement dated as of
the date hereof
(the "Final CDA") and (iii) that certain Exclusive License
Agreement dated as of
the date hereof (the "License Agreement").
D. The Company and the Consultant desire to make certain
amendments to
the Consulting Agreement and the Approval Agreement, to grant
certain releases
and to coordinate certain matters relating to the Founder
Confidentiality
Agreement, the Original Confidentiality Agreement, the Final CDA
and the License
Agreement.
E. Capitalized terms used herein and not otherwise defined shall
have
the meanings assigned to them in the Consulting Agreement.
NOW, THEREFORE, for valuable consideration, receipt of which
is
acknowledged, the Parties hereto agree as follows:
1. Amendments to the Consulting Agreement. Acting in accordance
with
Section 8.5 of the Consulting Agreement, the Consulting
Agreement is hereby
amended as follows:
a. Section 1.3 shall be deleted in its entirety and a new
Section
1.3 shall be inserted in lieu thereof, which shall read as
follows:
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"1.3 Commitment. The Consultant agrees to make himself
available to render the Services from time to time as
requested by the Company at such times and locations as may
be
mutually agreed, provided that the Consultant shall not be
required to devote time equivalent to more than 48 hours per
year to the performance of the Services."
b. Section 2 shall be deleted in its entirety and a new Section
2
shall be inserted in lieu thereof, which shall read as
follows:
"2. Term. Subject to Section 7, this Agreement will be for a
term beginning as of January 31, 2001 and ending on January
1,
2008."
c. Subsection 3.1 shall be deleted in its entirety and a new
Subsection 3.1 shall be inserted in lieu thereof, which
shall
read as follows:
"3.1 Compensation. As full compensation for the Services,
the
Company shall pay the Consultant the following:
(a) for the first six years of the term of this Agreement
(i)
$75,000 during the first year of this Agreement, (ii)
$137,250
during the second year of this Agreement, (iii) $139,567.50
during the third year of this Agreement, (iv) $141,954.53
during the fourth year of this Agreement, (v) $144,413.17
during the fifth year of this Agreement, and (vi)
$146,945.57
during the sixth year of this Agreement, in each case
payable
bi-weekly in arrears.
(b) for the period February 1, 2007 through January 1, 2008
of
the term of this Agreement, the sum of $500 per month,
payable
quarterly on the 15th calendar day after the end of such
quarter."
For the purposes of the Consulting Agreement, notwithstanding
any other
provision or agreement, the Consultant and the Company hereby
expressly agree
that
(i) the term "Field" as used in the Consulting Agreement shall
not
include the "Field" as defined in the License Agreement, as
amended
and restated at any time hereafter; provided, however, if
the
License Agreement is terminated by either party for any reason,
then
as of the effective date of such termination the term "Field"
as
used in the Consulting Agreement shall thereafter include
"Field" as
defined in the License Agreement, as amended and restated at
any
time hereafter;
(ii) payments due to the Consultant pursuant to Section 3.3 of
the
Consulting Agreement shall neither include nor reflect any
payments
of any nature received by the Company from IMI, IMI's
Sublicensed
Affiliates or Sublicensed Third Parties (each as defined in
the
License Agreement) under the terms of the License Agreement,
including, without limitation, any royalties, upfront
payments,
license fees, or milestone payments in connection with any sales
or
licensing of Products by the Company to IMI, IMI's
2
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Sublicensed Affiliates or Sublicensed Third Parties or any
royalties
paid by IMI, IMI's Sublicensed Affiliates or Sublicensed
Third
Parties to the Company in respect of Products (collectively,
the
"Excluded Royalties");
(iii) the term "royalty payments" as used in Sections 3.3(a)(ii)
and
3.3(b)(ii) of the Consulting Agreement shall include only
royalties
and sublicensing royalties based upon sales of Products received
by
the Company or its Affiliates from a party other than IMI,
IMI's
Sublicensed Affiliates or Sublicensed Third Parties;
(iv) the term "royalty payments" as used in Sections 3.3(a)(ii)
and
3.3(b)(ii) of the Consulting Agreement specifically shall
not
include (1) any milestone payments, (2) any upfront fees, (3)
any
license or sublicense fees, or (4) other payments that are
not
related to royalties on sales that are received by the Company
and
the Company's Affiliates in connection with the Products;
and
(v) the Company's obligations to pay the Consultant royalties
pursuant
to Section 3.3 of the Consulting Agreement shall survive
termination
of the Consulting Agreement for so long as the Company is
obligated
to make payments to the Institution related to the
development
and/or commercialization of Products.
In all other respects, the Consulting Agreement is hereby
ratified and confirmed
and remains in full force and effect.
2. Release by Consultant. Subject to Section 5, in consideration
of
mutual promises contained in this Amendment, the Consultant
voluntarily and of
his own free will:
a. acknowledges and agrees that (i) the Company has paid all
amounts owed to the Consultant under the Consulting
Agreement
as of the date hereof and (ii) the Company is not and will
not
be obligated to make any further payments to the Consultant
under the Consulting Agreement, except as specifically set
forth in new Subsection 3.1(b) of the Consulting Agreement
as
set forth in Section 1.c of this
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