Second Amendment to Development and Commercialization Agreement



 EXHIBIT 10.36.2 
 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. 
  
  
 February 13, 2009 
  
 Mr. Simon Bicknell 

Company Secretary 
 Glaxo Group Limited

 Glaxo Wellcome House 
 Berkeley
Avenue 
 Greenford, Middlesex, UB6 0NN 
 UNITED KINGDOM 
  

	Re:	 Second Amendment to Development and Commercialization Agreement between XenoPort, Inc. (“XenoPort”) and Glaxo Group Limited
(“GSK”) dated February 7, 2007, as amended by that certain First Amendment, dated May 4, 2007 (as amended to date, the “Agreement”) 


 Dear Mr. Bicknell: 
 This letter (the “Second
Amendment”) is to confirm the agreement between XenoPort and GSK with respect to an amendment to the Agreement as set out in Paragraphs 1 – 16 below. All capitalized terms not otherwise defined in this Second Amendment shall have the
respective meanings given to such terms in the Agreement. XenoPort and GSK agree that, effective February 13, 2009 (the “Second Amendment Date”), the Agreement shall be further amended as follows: 
 1.        Section 1.17 shall be deleted and restated in its entirety as follows: 

“1.17    “Detail” (including any variations such as
“Detailing”) shall mean that part of the activity undertaken by a Sales Representative during a Call whereby a Sales Representative, who has been trained with respect to the REQUIPTM Product and/or the Product, as applicable, in
accordance with Section 5.4(c), makes a face-to-face presentation: (a) describing [... * ...] as applicable; (b) which may also include [... * ...]; and (c) in accordance with the
[... * ...], as applicable. [... * ...], shall not constitute a Detail. [... * ...], as applicable, shall not constitute a Detail. Only [... * ...] will
constitute [... * ...]. As used herein, a [... * ...] in which [... * ...] (as consistent with industry norms [... * ...], and a
[... * ...].” 
 2.      New Section 1.28 shall be added to
the Agreement as follows (and all subsequent definitions in Section 1 and related section references shall be deemed renumbered accordingly): 
  

  
  
 * 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. 








 “1.28    “Loss of Exclusivity Date” shall mean
the earliest of: (a) [... * ...]; (b) [... * ...]; and (c) the date that the REQUIPTM Product is withdrawn from the United States market. The term
[... * ...].” 
 3.        Section 1.48 of the
Agreement (formerly Section 1.47) shall be deleted and restated in its entirety as follows: 
 “1.48    “REQUIPTM Product” shall mean that certain pharmaceutical product Controlled by GSK or its Affiliates as of the Effective Date, which contains ropinirole HCL as an active ingredient and
is known as of the Second Amendment Date as REQUIPTM XL.” 
 (a) All references to “REQUIPTM Products”
in Sections 1.4 “Applicable Commercial Practices Policies,” 1.17 “Detail,” 1.45 (formerly 1.44) “Promotional Materials,” 1.51 (formerly 1.50) “Sales Representative,” 1.52 (formerly 1.51) “Samples,”
1.54 (formerly 1.53) “Target Audience,” 5.3, , 5.3(c), 5.3(e), 5.3(e)(i-vii), 5.4(a), 5.4(b), 5.4(c), 5.4(g), 5.4(j), 5.5. 5.6(c), 5.7(a), 5.9(a), 5.9(b)(iii), 5.9(d), 5.9(e), 5.9(f), 9.1(b), 15.2(i), 17.1 and Exhibit 5 of the Agreement
shall be replaced with the words “REQUIPTM Product” in each such Section. 
 4.        Section 1.49 of the Agreement (formerly Section 1.48) shall be deleted and restated in its entirety as follows: 
 “1.49    “REQUIPTM Trademark” shall mean the Trademark Controlled by GSK or
its Affiliates as of the Effective Date and during the Term, which is used with the REQUIPTM Product in the Field in the Territory.” 
 (a) All references to “REQUIPTM Trademarks” in Exhibit 5 of the Agreement shall be replaced with the words “REQUIPTM Trademark.” 
 5.        All references to “Exhibit 1.59” in Section 1.60 “XenoPort
Patents” (formerly Section 1.59) and Exhibit 1.59 of the Agreement shall be replaced with the words “Exhibit 1.60” in each such Section. 
 6.        All references to “Exhibit 1.60” in Section 1.61 “XenoPort Trademarks” (formerly Section 1.60) and Exhibit
1.60 of the Agreement shall be replaced with the words “Exhibit 1.61” in each such Section. 
 7.        A reference to “REQUIPTM Co-Promotion Date” as defined in Section 5.3(a) shall be added to the Additional Definitions set forth in Section 1.62 (formerly
Section 1.61). A reference to “REQUIPTM Option” as defined in Section 5.3(a) shall be added to the Additional Definitions set forth in Section 1.62. References to “Primary Detail” and “Secondary
Detail” as defined in Section 1.17 shall be added to the Additional Definitions set forth in Section 1.62. 
 8.        The second sentence of Section 5.2(b) of the Agreement shall be deleted and restated in its entirety as follows: 
 “The Co-Promotion Plan shall set out in reasonable detail: (i) [... * ...] in connection
with the Co-Promotion [... * ...]; (ii) [... * ...]; (iii) [... * ...]; and (iv) [... * ...].” 
 9.        The first two sentences of Section 5.2(e) of the Agreement shall be deleted and
restated in their respective entireties as follows: 
  

  
  
 * 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. 








 “(e)        Sales Effort
of XenoPort.    In the event that XenoPort has exercised the Co-Promotion Option, then upon the earlier to occur of the REQUIPTM Co-Promotion Date and the date the Product receives Marketing Approval in the United States,
XenoPort shall notify GSK of the number of Sales Representatives that XenoPort elects to deploy initially for the Product, provided that [... * ...]. Promptly after such notification, [... * ...],
XenoPort will [... * ...] of Sales Representatives that XenoPort so elects; [... * ...] of Sales Representatives to provide Details of the Product in accordance with the Co-Promotion Plan.”

 10.        Sections 5.3(a), 5.3(b) and 5.3(d) of the Agreement shall be deleted
and restated in their respective entireties as follows: 
 “(a)        Commencement of Right to Detail the REQUIPTM Product.    If XenoPort exercises the Co-Promotion Option for the Product, XenoPort shall also obtain a
non-sublicensable, non-exclusive option to Detail the REQUIPTM Product in the United States in accordance with the terms of this Article 5 (the “REQUIPTM Option”). XenoPort may exercise the REQUIPTM Option by notifying
GSK in writing [... * ...] (the date on which XenoPort notifies GSK of its election to exercise the REQUIPTM Option pursuant to this Section 5.3(a) shall be the “REQUIPTM Co-Promotion Date”). In
the event that XenoPort exercises the REQUIPTM Option as provided in this Section 5.3(a), XenoPort will have a non-exclusive, non-sublisenable right to Detail the REQUIPTM Product in accordance with the terms of this Article 5 in the
United States until [... * ...]; provided, however, that [... * ...]. In the event that XenoPort does not exercise the REQUIPTM Option as provided in this Section 5.3(a) prior to
[... * ...], XenoPort will have no right to Detail the REQUIPTM Product in the United States, and GSK will have no further obligation with respect to the REQUIPTM Option. 
 (b)        The REQUIPTM Sales Plan.    GSK shall
prepare and determine, in consultation with XenoPort, the tactical plan for XenoPort’s Detailing of the REQUIPTM Product by XenoPort Sales Representatives in the United States (the “REQUIPTM Sales Plan”) and shall
provide the REQUIPTM Sales Plan to XenoPort [... * ...]. The REQUIPTM Sales Plan shall set out in reasonable detail: (i) [... * ...] in connection with [... * ...];
and (iii) [... * ...] under such REQUIPTM Sales Plan, [... * ...] and which is [... * ...]. XenoPort shall be entitled to dedicate a number of Sales Representatives
elected by XenoPort, up to [... * ...], to Detail the REQUIPTM Product in the United States. XenoPort’s right to deploy such Sales Representatives shall commence [... * ...].” 

“(d)        Reimbursement.    GSK shall
reimburse XenoPort for each Detail provided by the XenoPort Sales Representatives Detailing the REQUIPTM Product in the United States in accordance with the REQUIPTM Sales Plan. Such reimbursement shall be equal to
[... * ...]; provided, however that if during the Call in which the XenoPort Sales Representative is Detailing the REQUIPTM Product, the XenoPort Sales Representative is Detailing a pharmaceutical product other than the
Product or the REQUIPTM Product, then GSK shall reimburse XenoPort [... * ...]. For the purposes of example only: 
 (A)        If, during a Call, a XenoPort Sales Representative is only Detailing the REQUIPTM Product, then XenoPort will be entitled to receive
$[... * ...] for such Detail. 
  

  
  
 * 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. 








 (B)        If, during a Call, a
XenoPort Sales Representative is only Detailing the REQUIPTM Product and the Product, then XenoPort will be entitled to receive $[... * ...] for such Detail of the REQUIPTM Product and
$[... * ...] for such Detail of the Product. 
 (C)        If, during a Call, a XenoPort Sales Representative is Detailing the REQUIPTM Product, Product and another pharmaceutical product, then XenoPort will be entitled to receive
$[... * ...] for such Detail of the REQUIPTM Product and $[... * ...] for such Detail of the Product. 
 Such reimbursements shall be made to XenoPort [... * ...].” 
 11.        Section 5.4(d) of the Agreement shall be deleted and restated in its entirety as follows: 
 “(d)        Timing.    XenoPort and GSK shall
cooperate to have the XenoPort Sales Representatives hired and trained as provided in this Agreement [... * ...] prior to [... * ...].” 
 12.        Section 5.8 of the Agreement shall be deleted and restated in its entirety as
follows: 
 “5.8        Reimbursement.    Within [... * ...], XenoPort shall submit to GSK a report containing an accounting of the Sales Representatives
deployed by XenoPort in Co-Promoting and Detailing the Product and/or Detailing the REQUIPTM Product (as the case may be) in the United States and [... * ...]. Such reimbursements shall be made to XenoPort
[... * ...]. The amount of such reimbursement shall be as specified in Section 5.2(f) and/or 5.3(d), as applicable.” 
 13.        Sections 5.9(b)(i), 5.9(b)(ii) and 5.9(c) of the Agreement shall be deleted and restated in their respective entireties as follows: 

“(b)(i)    As to the Product.    After XenoPort has commenced its
Detailing of the Product, GSK shall have the right to terminate XenoPort’s right to Co-Promote and Detail the Product: (A) [... * ...] in accordance with the Co-Promotion Plan)
[... * ...]; and/or (B) [... * ...] with respect to [... * ...]. 
 (ii)        As to the REQUIPTM Product.    After XenoPort has exercised the Co-Promotion Option and following [... * ...],
GSK shall have the right to [... * ...] terminate XenoPort’s right to Detail the REQUIPTM Product upon [... * ...].” 
 “(c)        Extension of the REQUIPTM Product
Detailing.    GSK shall notify XenoPort in writing, [... * ...], as to whether GSK, in its sole discretion, elects to extend XenoPort’s right to Detail the REQUIPTM Product after the
[... * ...] If GSK so notifies XenoPort of such extension, XenoPort’s right to Detail the REQUIPTM Product will continue after the [... * ...].” 
 14.        The Milestone Event described in number 7 of Section 6.2(a) of the Agreement
shall be deleted and restated in its entirety as follows: 
 “7. [... * ...]” 
  

  
  
 * 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. 








 15.        All references to “Section
1.33” in Section 6.3(c) and 18.2 of the Agreement shall be replaced with the words “Section 1.34” in each such Section. 
 16.        Section 8.2 of the Agreement shall be deleted and restated in its entirety as follows: 
 “8.2        Diligent Efforts of
XenoPort.    XenoPort shall use Commercially Reasonable Efforts to conduct the Clinical Studies and Activities and, in the event that it exercises the Co-Promotion Option and/or the REQUIPTM Option, as applicable, use
Commercially Reasonable Efforts in its Co-Promotion and Detailing of the Product and/or Detailing of the REQUIPTM Product, as applicable, following the Marketing Approval of the Product in the United States and/or the REQUIPTM Co-Promotion
Date, as applicable.” 
 Except as specifically provided in this Second Amendment, no provision of the Agreement shall
be modified or amended hereby and all provisions of the Agreement shall remain in full force and effect. The Agreement, as specifically modified and amended by this Second Amendment, is hereby confirmed and approved. This Second Amendment and all
questions regarding its validity or interpretation shall be governed by, and construed and enforced in accordance with, the laws of the State of Delaware, without reference to conflict of law principles. 
  

  
  
 * 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. 








 Please confirm GSK’s acceptance of, and agreement with, this Second Amendment by
signing, or having an authorized representative of GSK sign, two (2) copies of this Second Amendment and return one (1) original copy and one (1) photocopy of the Second Amendment to: 
  
  

			
	 Originally executed copy to:
  
 XenoPort, Inc.
 3410 Central
Expressway
 Santa Clara, CA 95051
 Facsimile: (408) 616-7211
 Attention: Secretary
	  	 And a copy to:
  
 Wilson, Sonsini, Goodrich & Rosati
 650
Page Mill Road
 Palo Alto, CA 94304
 Facsimile: (650) 493-6811
 Attention: Kenneth A. Clark


 Yours sincerely, 
  

	
	
	 /s/ William J. Rieflin

	 William J. Rieflin
 President


  
  

			
	 ACKNOWLEDGED AND AGREED BY GLAXO GROUP LIMITED:

	
	 /s/ Paul Williamson

		
	 Name:
	 	 Paul Williamson

		
	Title:	 	 For and on behalf of Edinburgh Pharmaceutical Industries Limited

		
	 	 	 Corporate Director

		
	Date:	 	  

  

	cc:	 Adrian Rawcliffe 


 Senior Vice President, Worldwide Business Development, GlaxoSmithKline 
  

	cc:	 Chip Cale 


 Vice
President and Associate General Counsel, Business Development Transactions, GlaxoSmithKline 
  

  
  
 * 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.