Exhibit 10.24
CYPRESS BIOSCIENCE, INC. LETTERHEAD
February 1, 2002
Fresenius HemoCare GmbH
Adsorber Technology Division
Xxxxxxxxxxxx Xxx. 0-0
X-00000 Xx. Xxxxxx
Xxxxxxx
Attn: Xx. Xxxxx Xxxxxxx
Xxxxxxxxx XxxxXxxx, Inc.
0000 000/xx/ Xxxxxx XX, Xxxxx 000
Xxxxxxx, XX 00000
Attn: Xxxxxxx Xx
Re: Amended and Restated License Agreement
Dear Xx. Xxxxxxx Xx. Xx:
This letter agreement (the "Letter Amendment") serves to amend certain
provisions of the Amended and Restated License Agreement (the "Original
Agreement") dated January 19, 2001 among Cypress Bioscience, Inc., a Delaware
corporation (the "Licensor"), Fresenius Hemocare, Inc., a Delaware corporation
(the "Licensee"), and Fresenius Hemocare Gmbh, a company organized under the
laws of the Federal Republic of Germany ("Fresenius GmbH"). Licensor, Licensee
and Fresenius GmbH (collectively referred to herein as the "Parties") agree to
amend and restate the provisions in the Original Agreement as described below.
All other provisions in the Original Agreement shall remain in full force and
effect.
(1) The definition of "License Fee Period" shall now read "License
Fee Period" means the seven (7) Contract Year period commencing
as of the Effective Date.
(2) Section 10.2(b) shall now read, "Notwithstanding Section
10.2(a), the License Fee shall be deemed to cover all royalties
with respect to Unit Sales of the Product during the License
Fee Period, and Licensor shall not be entitled to any
additional royalties during such License Fee Period,
notwithstanding the Final Payment (as defined in Section
10.3(a) below)."
(3) Section 10.2(c) shall now read, "Licensor shall not be entitled
to any royalties or payments with respect to sales of
Alternative Products during the License Fee Period."
(4) Section 10.3(a) shall now read, "Licensor shall be entitled to
one final payment in US dollars (the "Final Payment"), due
within ninety (90) days of end of the License Fee Period,
calculated as follows:
(i) If aggregate Unit Sales of the Product over the License
Fee Period are less than 35,000 Units, then no Final Payment shall be due
Licensor.
(ii) If aggregate Unit Sales of the Product over the License
Fee Period are greater than 35,000 Units but less than 50,000 Units, then the
Final Payment due Licensor shall be US$1,000,000.
(iii) If aggregate Unit Sales of the Product over the License
Fee Period are greater than 50,000 Units, then the Final Payment due Licensor
shall be US$2,000,000.
Upon receipt by Licensor in full of the Final Payment, Licensor
shall have no right to future revenues or royalties resulting from Unit Sales of
the Product thereafter. The Final Payment, if any such payment is due to
Licensor pursuant to Sections 10.3(a)(i) or 10.3(a)(ii), shall be payable on
January 30, 2008."
(5) Sections 10.5(b), 10.5(c) and 10.5(d) shall be deleted.
(6) Section 12.2(a) shall now read "Licensee shall provide
quarterly statements to Licensor on the 30/th/ day following
the conclusion of each calendar quarter during the term of this
Agreement. Each such statement shall present, for the quarter
to which such statement relates, total Unit Sales by territory
for such quarter."
(7) Section 16.3(a)(vii) shall now read, "Licensee and Fresenius
GmbH shall not be entitled to any refund or repayment of any
portion of the License Fee or the Final Payment, if any, under
any circumstances."
In addition, in connection with the execution of this Letter Amendment, Licensor
agrees to reimburse Licensee and Fresenius GmbH for legal fees incurred in
connection with the negotiation and execution of this Letter Amendment;
provided, however, that such fees shall not exceed US$5,000.
Sincerely,
CYPRESS BIOSCIENCE, INC.
/s/ Xxxx Xxxxxxxxx
----------------------------------
Xx. Xxxx Xxxxxxxxx
Chief Operating Officer and
Executive Vice President
Acknowledged and Agreed to by:
FRESENIUS HEMOCARE GmbH
By: /s/ Xxxxx Xxxxxxx
---------------------------------
Name: Dr. Xxxx Xxxxxxx
----------------------------
Its: President and CFO
----------------------------
By: /s/ Xxxxxxxx Xxxxx
---------------------------------
Name: Xx. Xxxxxxxx Xxxxx
----------------------------
Its: Vice President
----------------------------
FRESENIUS HEMOCARE, INC.
By: /s/ Xxxxxxx Xx
--------------------------------
Xxxxxxx Xx
President
cc: Xxxxxx Xxxxxxx, Esq, O'Melveny & Xxxxx
Xxxxxx Xxxxxxx, Fresenius Aktiengesellschaft
Xx. Xxx Xxxxxxxx, Cypress Bioscience, Inc.
Xxxx Xxxx, Esq, Xxxxxx Godward LLP
Xxxxxx Xxxxxxx, Esq, Xxxxxx Xxxxxxx LLP
Xxx Xxxxxxxx, Xxxxx & Xxxxx
