Asset Purchase Agreement [Amendment No. 1] - Bausch & Lomb Inc. and Pharmos Corp.
AMENDMENT NO. 1 TO ASSET PURCHASE AGREEMENT
This Amendment No. 1 to Asset Purchase Agreement dated as of December 28,
2001 ("Amendment No. 1") between Bausch & Lomb Incorporated, a New York
corporation with its principal place of business at One Bausch & Lomb Place,
Rochester, NY 14604-2701 ("Buyer") and Pharmos Corporation, a Nevada corporation
with its principal place of business at 99 Wood Avenue South, Suite 301, Iselin,
NJ 08830 ("Seller").
WHEREAS, Buyer and Seller entered into the Asset Purchase Agreement dated
as of October 9, 2001 (the "Asset Purchase Agreement"); and
WHEREAS, Buyer and Seller desire to amend the Asset Purchase Agreement to
modify to provisions of Section 6.7.1 thereof relating to the costs of obtaining
FDA approval for LE-T (as defined in the Asset Purchase Agreement).
NOW, THEREFORE, in consideration of the mutual agreements contained herein,
and other good and valuable consideration, the receipt and sufficiency of which
is hereby acknowledged, the parties hereto agree as follows:
1. Defined Terms. Unless otherwise indicated, capitalized terms used herein
shall have the meanings ascribed to them in the Asset Purchase Agreement.
2. Amendment of Asset Purchase Agreement. The parties hereby agree that
Section 6.7.1 of the Asset Purchase Agreement is deleted in its entirety, and
the following is substituted in replacement thereof:
"6.7.1 After the Closing Date, Buyer shall pay all of the costs associated
with conducting Phase III clinical testing of LE-T and preparing and filing with
the FDA an NDA for LE-T, subject to the reimbursement rights set forth below. If
the actual, documented out-of-pocket costs of Buyer related to such clinical
testing and filing (the "LE-T R&D Costs") exceed One Million Two Hundred
Thousand Dollars ($1,200,000), then Seller shall pay to Buyer fifty percent
(50%) of the LE-T R&D Costs in excess of such amount until the total LE-T R&D
Costs reach Two Million Five Hundred Thousand Dollars ($2,500,000), at which
point Seller shall pay to Buyer one hundred percent (100%) of the LE-T R&D Costs
in excess of that amount up to LE-T R&D Costs of Five Million Dollars
($5,000,000). Any LE-T R&D Costs in excess of Five Million Dollars ($5,000,000)
shall be paid by Buyer. If the LE-T R&D Costs are less than One Million Two
Hundred Thousand Dollars ($1,200,000), then Buyer shall pay to Seller fifty
percent (50%) of the difference. The parties acknowledge that Seller has
previously reimbursed Buyer for all its actual, documented out-of-pocket costs
associated with the performance of the Pre-Phase III studies for LE-T, and that
Seller has no further obligations related thereto."
3. Other Asset Purchase Agreement Provisions. Except as otherwise expressly
provided in this Amendment No. 1, the provisions of the Asset Purchase Agreement
remain in full force and effect.
4. Other Actions Necessary. At the reasonable request of one of the parties
hereto, the other party shall execute any other documents or take any other
reasonable actions necessary to effectuate this Amendment No. 1.
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5. Binding Effect. This Amendment No. 1 shall inure to the benefit of and
shall be binding upon the parties and their respective successors and assigns.
6. Amendments, Changes and Modifications. This Amendment No. 1 may not be
amended, changed, modified, altered or terminated without the prior written
consent of all of the parties hereto.
7. Applicable Law. This Amendment No. 1 shall be governed exclusively by
the applicable laws of the State of New York without regard to its conflict of
laws principles.
8. Execution of Counterparts. This Amendment No. 1 may be executed in
several counterparts, each of which shall be an riginal and all of which shall
constitute but one and the same instrument.
IN WITNESS WHEREOF, the parties have executed this Amendment No. 1 to Asset
Purchase Agreement as of the day and year first above written.
BAUSCH & LOMB
INCORPORATED
By: /s/ Stephen C. McClucki
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Name: Stephen C. McClucki
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Title: Senior Vice President and
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Chief Financial Officer
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PHARMOS CORPORATION
By: /s/ Robert W. Cook
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Name: Robert W. Cook
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Title: Executive Vice President and
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Chief Financial Officer
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