EXHIBIT 10.26
CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY
BRACKETS, IS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO
RULE 24B-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.
AMENDMENT # 4
TO THE RESEARCH, OPTION AND LICENSE AGREEMENT
DATED DECEMBER 7, 2001
This Amendment, dated this 7th day of December, 2001, is by and between (1)
VICAL INCORPORATED, a Delaware Corporation ("VICAL"), having a place of business
located at 0000 Xxxxx Xxxxxx Xxxxx, Xxxxx 000, Xxx Xxxxx, Xxxxxxxxxx 00000, XXX,
(2) AVENTIS PASTEUR (formerly PASTEUR MERIEUX Serums & Vaccins), a French
SOCIETE ANONYME ("AVP"), having a registered head office located at 00 xxxxxx
Xxxxxxx, 00000 Xxxx, Xxxxxx and (3) AVENTIS PASTEUR LIMITED (formerly Connaught
Laboratories Limited), a company organized and existing under the laws of the
Province of Ontario, Canada (AVP-Canada) and having its principal place of
business at Connaught Campus, 0000 Xxxxxxx Xxxxxx Xxxx, Xxxxxxx, Xxxxxxx, Xxxxxx
X0X 0X0.
WHEREAS, VICAL and AvP entered into a Research, Option & License Agreement (the
AGREEMENT) as of September 29, 1994, as amended by Amendment #1 dated as of
September 29, 1994, by Amendment # 2 dated January 26, 1996 and by Amendment # 3
dated as of April 15, 1996 (the AMENDMENT #3 ), under which AvP is granted
Options with respect to certain Fields and during applicable Option Periods to
obtain exclusive licenses under certain Patent Rights and certain associated
technologies owned by or licensed to VICAL ; and
WHEREAS, AvP desires to modify the Field in which it may exercize Options, and
VICAL is willing to permit such modifications upon the terms and conditions set
forth in this Amendment;
NOW, THEREFORE, the parties agree to amend the Agreement as follows :
1. The definition of Field as set forth in Section 1.5. of the Agreement is
hereby amended by deletion of all microorganisms listed in such Section 1.5
as amended by Amendment # 3, Section 1, and the addition of
[***]
2. The definition of Option Period as set forth in Section 1.11. of the
Agreement as amended by Amendment # 3, Section 2, is hereby replaced with the
following :
1.11. "OPTION PERIOD" SHALL MEAN, WITH RESPECT TO [***] THE PERIOD COMMENCING
ON THE DATE HEREOF AND CONTINUING FOR A[***] PERIOD UNTIL [***] UNLESS
TERMINATED EARLIER PURSUANT TO THE PROVISIONS OF ARTICLE 12 BELOW.
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[***] Confidential material redacted and separately filed with the Commission.
3. Section 4.2.1. of the Agreement is hereby replaced with the following :
4.2.1. GRANT OF THE OPTIONS. VICAL HEREBY GRANTS TO AVP AN OPTION WITH
RESPECT TO [***] DURING THE APPLICABLE OPTION PERIOD, TO OBTAIN THE
EXCLUSIVE, WORLDWIDE, ROYALTY-BEARING LICENSE FOR SUCH FIELD AS SET
FORTH IN SECTION 4.3 BELOW. AVP MAY EXERCISE THE OPTION FOR SUCH FIELD
AT ANY TIME ON OR BEFORE THE EXPIRATION OF THE OPTION PERIOD. AS SOON
AS PRACTICABLE AFTER EXECUTION OF THIS AMENDMENT # 4, AVP SHALL PAY TO
VICAL A NONREFUNDABLE, NONCREDITABLE LUMPSUM PAYMENT OF [***]. SUCH
PAYMENT IS IN CONSIDERATION FOR PAST RESEARCH CONDUCTED BY VICAL
RESULTING IN DIRECT INJECTION TECHNOLOGY OR CYTOFECTIN TECHNOLOGY AS
IT MAY APPLY TO [***].
4. Section 4.2.2 of the Agreement as amended by Amendment # 3 is herby deleted
in its entirety.
5. Section 4.2.3. of the Agreement is hereby replaced with the following :
4.2.3. EXERCISE OF THE OPTION. AVP MAY EXERCIZE THE OPTION WITH RESPECT TO
[***] (a) BY PROVIDING WRITTEN NOTICE OF EXERCISE TO VICAL ON OR
BEFORE THE EXPIRATION OF THE APPLICABLE OPTION PERIOD, AND (b) BY
PAYING TO VICAL, PRIOR TO THE EXPIRATION OF THE APPLICABLE OPTION
PERIOD, A NON-REFUNDABLE, NON-CREDITABLE OPTION EXERCISE FEE IN THE
AMOUNT OF [***].
6. AvP hereby declares that all obligations (including payment obligations)
relating to [***] under the Agreement shall be assumed by AvP-Canada, an
Affiliate of AvP, and that all rights relating to [***] under the Agreement
shall benefit to AvP-Canada. AvP-Canada hereby appears as an additional party
to the Agreement, a true copy of which is delivered to AvP-Canada along with
an original counterpart of this Amendment # 4.
7. AvP hereby declares that it abandons, or hereby confirms previous abandonment
of, the development and commercialization of Products in the following
Fields : HERPES VIRUS VARICELLAE (herpes zoster) ; BORRELIA BURGDORFERI (Lyme
disease) ; CYTOMEGALOVIRUS (CMV); HELICOBACTER PYLORI ; PLASMODIUM FALCIPARUM
(Malaria) and Respiratory Syncitial Virus (RSV) and Section 5.3.1. of the
Agreement applies to such abandonment.
8. AvP hereby declares that its letter to VICAL dated November 6, 2001 is deemed
null and void and of no further effect.
9. VICAL hereby irrevocably waives any claim against and forever discharges AvP
from any alleged breach of contract under the Agreement in relation to any
alleged action or omission, including but not limited to any payment default,
which would have occured prior to the date of this Amendment # 4. In
particular, VICAL
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[***] Confidential material redacted and separately filed with the Commission.
hereby withdraws its claim for alleged default of payment by AvP of a
milestone payment under Section 6.3.2 of the Agreement as amended by
Amendment # 3 ; VICAL hereby declares that its letter to AvP dated December
15, 2000 is deemed null and void and of no further effect. VICAL shall
promptly issue to AvP a credit note for the amount invoiced by VICAL to AvP
under invoice N DEG. PMC005 dated September 7, 2000.
10.Any provision of the Agreement not modified by this Amendment shall remain
unchanged. Capitalized terms in this Amendment shall have the meaning set
forth in the Agreement.
IN WITNESS WHEREOF, the parties hereto have had this Amendment executed by their
authorized representatives as set forth below.
VICAL INCORPORATED AVENTIS XXXXXXX X.X.
By: /s/ XXXXX XXXXXX By: /s/ XXXXXX XXXXX
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Xxxxx Xxxxxx Xxxxxx Xxxxx
President and C.E.O. President & COO/DIRECTEUR
GENERAL DELEGUE
Date : Date :
AVENTIS PASTEUR LIMITED
By: /s/ XXXX XXXXXXXX
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Xxxx Xxxxxxxx
President
By: /s/ XXXXXX XXXXXXX
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Xxxxxx Xxxxxxx
Vice-President, R&D
Date :
