EX-10.47






Exhibit 10.47




FIRST AMENDMENT TO

CONSOLIDATED, AMENDED, AND RESTATED LICENSE AGREEMENT




     This First Amendment to Consolidated, Amended, and Restated License Agreement (the
“Amendment”) is entered into as of December 29, 2008 (the “Amendment Date”) by and between GTx,
Inc., a Delaware corporation, located at 3 N. Dunlap Street, Memphis, Tennessee 38163 (“GTx”), and
University of Tennessee Research Foundation, a Tennessee corporation, having an office at
UT Conference Center, Suite 211, 600 Henley Street, Knoxville, Tennessee 37996-4122 (“UTRF”), for
the purpose of amending that certain Consolidated, Amended and Restated License Agreement, dated
July 24, 2007, between GTx and UTRF (the “Original Agreement”).




     Capitalized terms used but not defined herein shall have the respective meanings ascribed to
such terms in the Original Agreement.




RECITALS




     Whereas, GTx has entered into that certain Exclusive License and Collaboration
Agreement with Merck & Co., Inc., (“Merck”) dated as of November 5, 2007 (the “Merck Sublicense”),
pursuant to which Merck has become GTx’s exclusive Sublicensee of certain SARM technology licensed
to GTx under the Original Agreement;




     Whereas, a dispute arose between the Parties with respect to the amount of Sublicense
Royalties payable to UTRF under the Original Agreement on account of certain payments received by
GTx in connection with the Merck Sublicense; and




     Whereas, the Parties desire to amend the Original Agreement to clarify GTx’s payment
obligations to UTRF for consideration received by GTx from its Sublicensees.




     Now, Therefore, in consideration of the foregoing and the covenants and promises
contained in this Amendment and other good and valuable consideration, the Parties agree as
follows:





	1.	 	Amendment of “Sublicense Revenue” Definition. Section 1.47 of the Original Agreement is
hereby amended and restated to read in its entirety as follows:
	 
	 	 	“1.47 “Sublicense Revenue” shall mean all payments actually received by GTx
pursuant to and in connection with each Sublicense, including, without limitation, up-front
license fees, milestone payments, license maintenance fees, election fees, and all other
fees and payments received by GTx under each such Sublicense agreement, subject to the
following:






	 	A.	 	Deductions. There shall be deducted from Sublicense
Revenue payments received by GTx as reimbursement for actual, otherwise
unreimbursed, out-of-pocket expenses as set out in the applicable Sublicense
agreement,




 









 






	 	 	 	provided that only reimbursements for expenses incurred in the development
of one or more Licensed Products covered by such Sublicense agreement may be
deducted from Sublicense Revenue and then only to the extent of expenses
incurred from and after the date of the Sublicense agreement for
pre-clinical or clinical research and development, including development of
the formulation and manufacturing process, manufacturing of preclinical and
clinical supplies and analytical and stability testing as required by the
Food and Drug Administration to support a New Drug Application (“NDA”)
filing for the Licensed Product and any NDA Third Party preparation costs
and filing fees. No part of the research funding payable by Merck to GTx
pursuant to Section 8.1 of the Merck Sublicense as reimbursement for basic
research and medicinal chemistry activities or any other reimbursements
which GTx may receive for activities in support of Development Programs (as
defined in the Merck Sublicense) under Section 4.5 of the Merck Sublicense
will be considered Sublicense Revenue. Additionally, Sublicense Revenue
will not include any payments made to Third Parties by or on behalf of a
Sublicensee for conducting clinical trials, filing new drug applications,
commercially launching a product and/or marketing and selling a product,
since these are not payments received by GTx from a Sublicensee on account
of the Sublicense.






	 	B.	 	Exclusions. Sublicense Revenue will not include:






	 	(a)	 	running royalties received by GTx that are
calculated as a percentage of Sublicensee’s Net Sales;
	 
	 	(b)	 	consideration paid to GTx in exchange for
securities of GTx up to the “fair market value” (as hereinafter
defined) of such securities;
	 
	 	(c)	 	any milestone payments and royalty payments
received by GTx from Merck under Sections 8.4 and 8.5 of the Merck
Sublicense, but only to the extent such payments are on account of
Products (as defined in the Merck Sublicense) which are not Licensed
Products hereunder;
	 
	 	(d)	 	in the event the Sublicense of Licensed Subject
Matter is granted in conjunction with a license of distinct GTx
technology that is not Licensed Subject Matter (“Other Technology”),
amounts allocable to such Other Technology as reasonably established by
GTx and the Sublicensee and set out in the Sublicense agreement;
provided that if no such allocation is made in the Sublicense
agreement, then the prorated portion of any fees or payments (not
otherwise excluded or deducted pursuant to this Section 1.47) made to
GTx under such Sublicense agreement in consideration for such Other
Technology shall be excluded; and




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	 	(e)	 	up-front fees received by GTx from Ortho
Biotech Products L.P. pursuant to the Joint Collaboration and License
Agreement entered into with GTx effective as of March 16, 2004.






For purposes of this Section 1.47B., “fair market value” shall mean (1) with respect
to the Common Stock of GTx, the closing price of the Common Stock as quoted or
traded on the NASDAQ Global Market (or other applicable exchange or public market)
on the day of closing of such stock sale, or if the closing of such stock sale does
not take place on a trading day, the closing price on the last trading day prior to
the day of closing of such stock sale; and (2) with respect to any other security of
GTx other than Common Stock, the parties shall seek in good faith to agree on the
fair market value of such security and in the event the parties cannot mutually
agree on such value, the determination of fair market value shall be submitted to
dispute resolution pursuant to Section 11.1. For clarity, all up-front fees already
received by GTx from Merck pursuant to the Merck Sublicense and reported to UTRF
prior to the Amendment Date (including without limitation, the license fee paid
pursuant to Section 8.2 of the Merck Sublicense and the equity investment made
pursuant to Section 8.3 of the Merck Sublicense) and all up-front fees already
received by GTx from Ortho Biotech Products L.P. pursuant to the Joint Collaboration
and License Agreement entered into with GTx effective as of March 16, 2004 shall not
be considered Sublicense Revenue hereunder. Also for clarity, in the case of the
purchase of securities of GTx by a Sublicensee or an Affiliate of Sublicensee, (i)
if such securities are acquired in connection with the receipt of rights under
Licensed Subject matter, then any amounts paid in excess of the fair market value of
such securities shall be included as an element of Sublicense Revenue, (ii) if such
securities are acquired by a Sublicensee in a transaction not in connection with the
grant of rights (or the grant of further rights) under Licensed Subject Matter, then
no portion of the purchase price of such securities shall constitute Sublicense
Revenue, regardless of the relationship between purchase price and fair market
value, and (iii) if GTx were to be acquired by a Sublicensee or an Affiliate of a
Sublicensee, no portion of the purchase price in any form shall be Sublicense
Revenue.”




	2.	 	Amendment to Dispute Resolution. Section 11.1 of the Original Agreement is hereby amended
and restated to read in its entirety as follows:
	 
	 	 	“11.1 Except for the right of either party to apply to a court of competent jurisdiction
for a temporary restraining order, a preliminary injunction, or other equitable relief to
preserve the status quo or to prevent irreparable harm, any and all claims, disputes or
controversies arising under, out of, or in connection with this Agreement, including without
limitation any dispute with respect to the scope of this Section 11, shall be resolved upon
thirty (30) days written notice of either party to the other by final and binding
arbitration in Knoxville, Tennessee (or other site acceptable to both Parties) under the
Commercial Arbitration Rules of the American Arbitration Association, or the




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	 	 	Patent Arbitration Rules if applicable, then in effect. The arbitrator(s) shall have no
power to add to, subtract from or modify any of the terms or conditions of this Agreement,
nor to award punitive damages. The prevailing party in any such arbitration shall, in
addition to recovering reasonable out-of-pocket costs of the arbitration, be entitled to an
award of reasonable attorneys fees incurred in connection with the arbitration and any
action necessary to perfect the arbitration award as a judgment, and for any collection
action required to secure payment of any arbitration award. Any award rendered in such
arbitration may be entered and enforced by either party in either the courts of the State of
Tennessee or in the United States District Court for the Eastern District of Tennessee, to
whose jurisdiction for such purposes UTRF and GTx each hereby irrevocably consents and
submits, or in any other United States court having jurisdiction.”






	3.	 	Amendment to Assignability. Section 13.1 of the Original Agreement is hereby amended and
restated to read in its entirety as follows:
	 
	 	 	“13.1 This Agreement shall be binding upon and shall inure to the benefit of UTRF and its
assigns and successors, and shall be binding upon and shall inure to the benefit of GTx and
its assigns provided that prior written approval by UTRF is first obtained, which approval
shall not be unreasonably withheld. Notwithstanding the foregoing, no prior written
approval from UTRF shall be required for any assignment by GTx to (i) an Affiliate of GTx
(or any entity into which GTx shall have been merged or consolidated, provided that at least
51% of such merged or consolidated entity is owed by shareholders holding at least 51% of
GTx immediately prior to such merger or consolidation) or (ii) a Third Party which acquires
all or substantially all of GTx’s assets or a Controlling interest in the business to which
this Agreement relates if, but only if, the Third Party can reasonably demonstrate prior to
such transaction, either: (I) a financial net worth or market cap equal to or greater than
the financial net worth of GTx existing prior to the acquisition, but not less than a net
worth of One Hundred Million Dollars ($100,000,000); or (II) a market cap of Five Hundred
Million Dollars ($500,000,000). No assignment shall be deemed effective unless such
assignee has agreed in writing to be bound by the terms and provisions of this Agreement.
Any attempt to assign or assignment made in violation of this Section 13.1 shall be void ab
initio. GTx shall give notice to UTRF of any assignment of this Agreement within thirty
(30) days thereafter, such notice to include a copy of assignee’s written agreement to be
bound by the terms and provisions of this Agreement. For the avoidance of doubt, any
consideration received by GTx from a permitted assignee in consideration of an assignment
pursuant to this Section 13.1 shall not be deemed Sublicense Revenue.”






	4.	 	Clarification of the Treatment of Other Payments Under the Merck Sublicense. For the
avoidance of doubt, the Parties desire to confirm the treatment of payment received to date
and which may be received in the future under the Merck Sublicense as follows:






	 	(a)	 	Merck Opt-In. Fifty percent (50%) of any payment received by GTx from Merck
pursuant to Section 3.4.3(ii) of the Merck Sublicense made in




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	 	 	 	consideration of the Merck Opt-In shall not be treated as Sublicense Revenue under
the Agreement, but one hundred percent (100%) of any payment received on account of
milestones under Section 3.4.3(iii) will be considered Sublicense Revenue.






	 	(b)	 	Royalty Payments Under Merck Sublicense. UTRF shall be paid Running Royalties
on Merck’s receipts from sales of Product (as defined in the Merck Sublicense) solely
to the extent that such Product is a Licensed Product under the Agreement.
	 
	 	(c)	 	Intellectual Property. Any payment received by GTx from Merck pursuant to
Article 12 of the Merck Sublicense for shared costs and expenses of patent prosecution,
maintenance, enforcement and defense shall not be treated as Sublicense Revenue under
the Agreement, provided that such costs and expenses are incurred after the Effective
Date of the Merck Sublicense.
	 
	 	(d)	 	Indemnification. Any payment received by GTx from Merck pursuant to Article 11
of the Merck Sublicense shall not be treated as Sublicense Revenue under the Agreement.
	 
	 	(e)	 	Effect of Termination. The treatment of any payments received by GTx from
Merck pursuant to Merck’s continuing payment obligations under Article 14 of the Merck
Sublicense shall be based on whether or not such payments would have constituted
Sublicense Revenue if they had been paid prior to the date of termination of the Merck
Sublicense.






	5.	 	Governing Law; Jurisdiction. This Amendment shall be governed by and construed in accordance
with the laws of Tennessee, without regard to conflicts of laws provisions.






	6.	 	Entire Agreement. This Amendment and the Original Agreement (except to the extent expressly
amended by this Amendment) collectively embody the entire, final and complete agreement and
understanding between the parties and replace and supersede all prior discussions and
agreements between the parties with respect to the subject matter hereof of thereof. The
Agreement, as hereby amended, remains in full force and effect.






	7.	 	Counterparts. This Amendment may be executed in two counterparts (which may be delivered by
facsimile or PDF), each of which shall be an original and both of which together shall
constitute the same document.





[Signature Page Follows].




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     In Witness Whereof, the Parties hereto have duly executed this Amendment as of the
Amendment Date.




	 	 	 	 	 	 	 	 	 
	GTx, Inc.	 	University of Tennessee Research Foundation	 	 
	 
	 	 	 	 	 	 	 	 
	By:

	 	/s/ Henry P. Doggrell
 

	 	By:
	 	/s/ Fred D. Tompkins
 

	 	 
	 
	 	 	 	 	 	 	 	 
	Name:

	 	Henry P. Doggrell
	 	Name:
	 	Fred D. Tompkins	 	 
	 

	 	 
	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	Title:

	 	VP, General Counsel
	 	Title:
	 	President	 	 
	 

	 	 
	 	 	 	 	 	 






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