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EXHIBIT 10.29
[/\#/\] CERTAIN CONFIDENTIAL INFORMATION CONTAINED
IN THIS DOCUMENT, MARKED BY BRACKETS, HAS BEEN
OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO RULE 24B-2
OF THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.
THIRD AMENDMENT TO
INTELLECTUAL PROPERTY LICENSE AGREEMENT
THIS THIRD AMENDMENT TO INTELLECTUAL PROPERTY LICENSE AGREEMENT
("AMENDMENT") is entered into as of
November 24, 2003 ("THIRD AMENDMENT DATE")
by and between UNIVERSITY LICENSE EQUITY
HOLDINGS, INC. ("ULEHI") and MYOGEN,
INC. ("MYOGEN"), a Delaware corporation,
having its principal place of business
at 7575 W. 103rd Avenue, Westminster,
Colorado 80021.
WHEREAS, ULEHI (as successor-in-interest to University
Technology
Corporation) and Myogen are parties to that
certain Intellectual Property
License Agreement dated September 1, 1998,
as amended January 26, 2001 and
November 12, 2002 (the "LICENSE
AGREEMENT"), pursuant to which ULEHI licensed
certain intellectual property on an
exclusive basis to Myogen in exchange for
the right to receive certain payments;
WHEREAS, ULEHI and Myogen now desire to amend the License Agreement
to
restate the intellectual property to which
the exclusive license extends and to
reflect the parties' agreement regarding
the modification of certain of such
payment terms, and
NOW, THEREFORE, in consideration of the foregoing premises and
the
covenants contained herein, ULEHI and
Myogen agree to amend the License
Agreement as follows:
1. All capitalized terms used but not
defined herein have the meaning given them
in the License Agreement.
2. SECTION 1.3 is deleted in its entirety
and replaced with the following:
1.3 A
"Licensed Product" shall mean any product or substantial
part thereof which:
(a) is based
on the Intellectual Property and/or which is
covered in whole or in part by an issued, unexpired
claim or a
pending claim contained in the
Intellectual Property and Know How in the country in
which the Licensed Product is made, used or sold;
(b) is
manufactured using a Licensed Process;
(c) is derived
from Intellectual Property and/or
Know-How.
Except as otherwise indicated in this Agreement, License
Product shall include enoximone if and only if the enoximone
is sold after U.S. FDA approval and only in combination (i.e.,
orally administered with beta blockers) therapy as described
in the relevant patent filed by the University of Colorado.
3.
SECTION 3.2(c) is deleted in its entirety and replaced with the
following:
[/\#/\]CONFIDENTIAL TREATMENT REQUESTED
1.
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(c) LICENSEE
together with its sublicensees, shall have sold a
minimum number of products containing enoximone (alone or in
combination) with annual sales that exceed the amounts in the
following schedule:
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* and each year of the Agreement thereafter.
4. SECTION 3.3 is deleted in its entirety
and replaced with the following:
3.3 If LICENSEE fails to perform in accordance with Paragraphs 3.1
and
3.2 above, LICENSEE shall have the right to
make royalty payments to ULEHI based
on the Net Sales amounts indicated above.
If LICENSEE does not pay such amounts,
ULEHI may reduce the exclusive license
under this Agreement to a nonexclusive
one, provided however, that LICENSEE
achieves at least [/\#/\] of the Net Sales
stated in Paragraph 3.2. If LICENSEE does
not pay such amount and does not
achieve at least [/\#/\] of the Net Sales
stated in Paragraph 3.2, then ULEHI
may terminate this Agreement pursuant to
Paragraph 13.3 hereof unless both
parties renegotiate the Due Diligence plan
and mutually agree to revisions
thereto.
5. SECTION 4.1(c) is deleted in its
entirety and replaced with the following:
(c) RUNNING
ROYALTIES AS FOLLOWS:
(i) [/\#/\] of
Net Sales (other than to sublicensees) of
the Licensed Products by LICENSEE.
(ii)
[/\#/\] of the amount
