exv10w46



 





Exhibit 10.46




***Text Omitted and Filed Separately

Confidential Treatment Requested

Under 17 C.F.R. §§ 200.80(b)(4) and 240.24b-2




FIRST AMENDMENT

TO

LICENSE AGREEMENT

DATED AS OF SEPTEMBER 14, 1999




by and between




THE UNIVERSITY OF SOUTHERN CALIFORNIA




And




BIO-MANAGEMENT, INC. (NOW KNOWN AS CELL-MATRIX, INC.)




     This FIRST AMENDMENT (the “Amendment”) dated as of February 23, 2007 (the “Amendment Date”),
is entered into by and between the University of Southern California (hereinafter “USC”), a
California nonprofit corporation with its principal place of business at University Park, Los
Angeles, California 90089, and Cell-Matrix, Inc., a Nevada corporation, formerly known as
Bio-Management, Inc., (a wholly-owned subsidiary of Micromet, Inc., formerly known as CancerVax
Corporation) (hereafter “Licensee”), having its principal place of business at 2110 Rutherford
Road, Carlsbad, CA 92008, and amends the License Agreement entered into by and between Licensee
and USC dated as of September 14, 1999 (the “License Agreement”). Licensee and USC are referred to
in this Amendment individually as a “Party” and collectively as “Parties.”



     In consideration of the mutual covenants contained in this Amendment and other good and
valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Parties
agree as follows:



1. Definitions




     All capitalized terms used in this Amendment have the meaning as defined in the first
paragraph above and throughout this Amendment. Any capitalized terms used in this Amendment
without definition have the meanings given to such terms in the License Agreement.



2. Amendments




     2.1 Section 3. subsection a. paragraph i. of the License Agreement is hereby amended and
restated to read in full as follows:




“i. the exclusive worldwide license in the FIELD OF USE under the
PATENTS to make, have made, use, offer for sale, sell, and import the
PRODUCT(S); and”



 









 





     2.2 Section 3. subsection b. of the License Agreement is hereby amended by inserting the
following sentence after the second sentence of subsection b.:




. . . “Licensee agrees that PRODUCTS used or sold in the United States
shall be manufactured substantially in the United States, unless a
written waiver is obtained in advance from the relevant U.S. federal
agency.” . . .



     2.3 Section 10 of the License Agreement is hereby amended by inserting the following sentence
after the first sentence of Section 10:




“USC shall not withhold permission, if (i) the agreement with a
SUBLICENSEE is in full compliance with this Agreement, and (ii) the
SUBLICENSEE is capable and shall use commercially reasonable efforts to
develop a PRODUCT as specified in Section 15.d. and Section 25.”



     2.4 A new Section 15. subsection d. shall be inserted and read as follows:




“Unless terminated pursuant to the other provisions of this Agreement,
this Agreement shall terminate on February 21, 2008, unless (i)
Licensee has granted a sublicense to a third party and such SUBLICENSEE
uses commercially reasonable efforts to develop a PRODUCT in compliance
with this Agreement, or (ii) Licensee itself uses commercially
reasonable efforts to develop a PRODUCT in compliance with this
Agreement.”



     2.5 Appendix A of the Agreement shall be amended and restated to read in full as set forth in
Schedule 1 of this Amendment.



3. Exclusion of Patents




     For the avoidance of doubt and notwithstanding anything in this Amendment or the License
Agreement, the patents and patent applications listed in Schedule 2 of this Amendment are hereby
expressly excluded from the definition of “PATENT” or “PATENTS” in the License Agreement.



4. Miscellaneous




     4.1 In the event of any conflict between the terms of this Amendment and the terms of the
License Agreement, the terms of this Amendment shall control.



     4.2 This Amendment may be executed in two or more counterparts, each of which shall be deemed
an original, but all of which together shall constitute one and the same instrument.



     4.3 USC hereby acknowledges and agrees that it has received the progress report pursuant to
Section 25 of the License Agreement for 2006, that Cell-Matrix, Inc. as of the Amendment Date is a
licensee in good standing and in compliance with the terms of the License



 









 







Agreement, and except as expressly modified by this Amendment, the terms and provisions of the
License Agreement shall remain in full force and effect.



[Remainder of page intentionally left blank. Signature page follows.]




 









 








     IN WITNESS WHEREOF, the Parties have caused this Amendment to be executed as of the Amendment
Date by signature of their duly authorized representatives.



	 	 	 
	Cell-Matrix, Inc.

	 	University of Southern California
	 
	 	 
	/s/ Jens Hennecke

	 	/s/ Dennis F. Dougherty
	Name: Jens Hennecke

	 	Name: Dennis F. Dougherty
	Title: VP of Business Development

	 	Title: Senior Vice President, Finance and CFO
	Date: 3-2-2007

	 	Date: 3-2-2007






 









 








Schedule 1




Appendix A



Patents/patent applications relating to [***]




	 	 	 	 	 	 	 	 	 
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Schedule 2




List of applications and patents of the University of Southern California related to [***]




	 	 	 	 	 	 	 	 	 
	Micromet	 	 	 	 	 	 	 	 
	ref no.	 	Application/Patent title	 	application no.	 	published	 	status
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	***	 	Certain information on this page has been omitted and
filed separately with the Commission. Confidential treatment has been requested
with respect to the omitted portions.