Exhibit 4.5
to Form 20-F
DATED 1ST DECEMBER , 2001
LION BIOSCIENCE AG
AND
BAYER AKTIENGESELLSCHAFT
-----------------------------------------
1ST AMENDMENT
RELATING TO A DEVELOPMENT AGREEMENT BETWEEN
LION BIOSCIENCE AG
AND
XXXXX XX DATED 13TH OCTOBER, 2000
CONTENTS
CLAUSE PAGE
1. Interpretation........................................................1
2. First Output for December 2001........................................1
3. Deliverables for Milestone 2 A........................................2
4. Other Changes of the Development Agreement in 2002....................2
5. Amendments of the Development Agreement in 2002.......................2
6. Miscellaneous.........................................................4
ANNEX
1. First Output for 12th December, 2001..................................5
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THIS AGREEMENT is made on 1st December, 2001 BETWEEN:
(1) LION BIOSCIENCE AG ("LION"), Xxxxxxxxx Xxx. 00, 00000 Xxxxxxxxxx,
Xxxxxxx, registered with the commercial register of the local court in
Heidelberg under HR B 5706; and
(2) XXXXX XXXXXXXXXXXXXXXXXX ("XXXXX"), 00000 Xxxxxxxxxx, Xxxxxxx.
WHEREAS
(A) LION and Bayer entered into a novel and innovative type of
collaboration to implement existing IT tools at Bayer but also to
develop novel IT tools such as pharmacophore informatics tools to
significantly enhance lead identification and optimization capabilities
for pharmaceutical and agrochemical discovery and development on 13th
October, 2000 ("DEVELOPMENT AGREEMENT").
(B) In order to obtain a first output from the Development Agreement in
2001, albeit not of the scope originally envisaged for the 1st and 2nd
milestones, the parties wish to agree on the specifications of this
first output to be delivered to Bayer in December 2001.
(C) LION and Bayer agree to waive the date of the 1st milestone (after
failure of the 1st acceptance test), to integrate the DELIVERABLES and
WORK PACKAGES of the 1st milestone into the 2nd milestone and to move
the 2nd milestone into the year 2002 (intending to split it into two
milestones: milestone 2 A and milestone 2 B), in no event to a date
earlier than the new milestone 2 A.
(D) The parties have agreed on the principal details of changes of the
Development Agreement to be implemented in the first calendar quarter
of 2002 relating to particular to the future milestones and payment
schedule.
NOW IT IS HEREBY AGREED as follows:
1. INTERPRETATION
(1) In this Agreement including the recitals all terms shall have the same
meaning as in the Development Agreement unless otherwise defined in
this agreement or where the context requires otherwise.
(2) "FIRST OUTPUT" means the list of issues to be addressed by LION by the
date further specified herein and described in Annex I;
"MILESTONE" has the meaning given to it in clause 1(8) of the Development
Agreement.
2. FIRST OUTPUT FOR DECEMBER 2001
(1) On 12th December, 2001 LION shall deliver to Bayer the First Output as
described in Annex 1. Bayer shall contribute the task described in
Annex 1a.
(2) For the avoidance of doubt, the parties acknowledge that the First
Output is not regarded as completion of a milestone.
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3. DELIVERABLES FOR MILESTONE 2 A
(1) The parties agree on a new milestone 2 A on 1st April, 2002. The
parties shall agree on the specific DELIVERABLES and WORK PACKAGES due
for the new milestone 2 A in the week of 8th February 2002 at the
latest.
(2) The general scope of the specification for the DELIVERABLES and WORK
PACKAGES for milestone 2 A will be set out between the parties until
November 16th.
(3) Clause 4(4) of the Development Agreement shall apply mutatis mutandis.
4. OTHER CHANGES OF THE DEVELOPMENT AGREEMTN IN 2002
Subpayment 4 (excluding the Management fee 4), as defined in Annex D of
the Development Agreement (payable thereunder on 30th January, 2002),
will be deferred until the DELIVERABLES of milestone 2 A have been, or
are deemed to be accepted by Bayer according to the procedure of clause
5 of the Development Agreement.
5. AMENDMENTS OF THE DEVELOPMENT AGREEMENT IN 2002
(1) The parties agree to amend the Development Agreement by 30th March,
2002 latest. The agreement under this subclause (1) shall create a
legally binding and enforceable obligation on both parties. If the
parties cannot achieve an agreement about the amendment of the
Development Agreement, clause 15.4 of the Development Agreement shall
apply mutatis mutandis.
(2) The amendments shall be:
(a) shift of all remaining milestones according to a new milestone
schedule starting with milestone 2A due on 1st April 2002 as
mentioned above and further milestones being due every six months
from the day of milestone 2 A until milestone 4 on 1st October,
2003 and a final milestone on 1st December, 2003;
(b) extended duration of the Development Agreement at least until 1st
January, 2004;
(c) an acceptance period of 30 days starting with the date of
delivery of the deliverables of each milestone according to
clause 5 of the Development Agreement;
(d) future subpayments of Bayer according to clause 7.2 of the
Development Agreement being made dependent on the acceptance of
Bayer of key DELIVERABLES of a milestone. If the key DELIVERABLES
have been, or are deemed to be accepted by Bayer, according to
the procedure of clause 5 of the Development Agreement, the
payment of Bayer shall be due within 30 days of such (deemed)
acceptance date, but not earlier than the date of the
corresponding milestone as defined under (e) below;
(e) The implementation of the following new payment schedule,
including a final payment in January 2004 after finalization of
the project, for the subpayments:
- 1st April, 2002 or after the acceptance (as defined under d
above) of milestone 2 A, whichever is later:
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subpayment 4* of US$2,000,000;
- 1st October 2002 or after acceptance (as defined under d
above) of milestone 2B, whichever is later: subpayment 5* of
US$2,000,000;
- 1st April 2003 or after acceptance (as defined under d
above) of milestone 3, whichever is later: subpayment 6* of
US$1,803,750;
- 1st October, 2003 or after acceptance (as defined under d
above) of milestone 4, whichever is later subpayment 7* of
US$1,803,750;
- 1st December 2003 or after final acceptance (as defined
under d above), whichever is later: final payment of $US
1,000,000;
(f) the implementation of the following new payment schedule for the
management fee which shall be split in the following three
installments (not considering the payment of US$ 541,666.67 on
30th January, 2002):
30th July, 2002: Management fee 5 of US$541,666.67;
30th January, 2003: Management fee 6 first half of US$270,833.34;
30th July, 2003: Management fee 6 second half of US$270,833.34;
(g) Definition of key DELIVERABLES and the corresponding ACCEPTANCE
TEST in mutual agreement between Bayer and Lion according to
clause 4.4 of the Development Agreement, but at least 5 months
before the date of the corresponding milestone;
(h) Lion's performing of project planning and risk assessment before
definition of the key DELIVERABLES.
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6. MISCELLANEOUS
(1) The Development Agreement and all of its provisions will continue in
full force and effect as legal, valid and binding obligations of each
of the parties subject as provided in this 1st amendment or
necessitated by results of implementing this 1st amendment.
(2) Clause 18 of the Development Agreement shall apply to this 1st
amendment mutatis mutandis.
Executed by and on behalf of LION bioscience AG
Heidelberg, 11.12.2001
/s/ Xxxxxxxxx xxx Xxxxxx und Xxxxxxx /s/ Xxxxxxxx Xxxxxxxxx
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Xx Xxxxxxxxx xxx Xxxxxx und Xxxxxxx Xx. Xxxxxxxx Xxxxxxxxx
CEO CIO
Executed by and on behalf of Xxxxx XX
Leverkusen,
/s/ Xxxxxxxx Xxxxxxx /s/ Xxxxx Xxxxxxxxx
Prof. Xx. Xxxxxxxx Xxxxxxx Xx. Xxxxx Xxxxxxxxx
Head of Pharma Research KB RP Legal Department
