Exhibit 10.43


 


 PORTIONS
OF THIS AGREEMENT WERE OMITTED AND HAVE BEEN FILED


SEPARATELY
WITH THE SECRETARY OF THE COMISSION PURSUANT TO AN


APPLICATION
FOR CONFIDENTIAL TREATMENT UNDER RULE 24b-2 OF THE


SECURITIES
EXCHANGE ACT OF 1934; [***] DENOTES OMISSIONS


 


THIRD
AMENDMENT TO EXCLUSIVE DISTRIBUTION AND LICENSING AGREEMENT


 


This
Third Amendment (the “Third Amendment”) is entered into on December 26, 2017 (the “Effective Date”),
by and between Resdevco Research and Development Company Ltd., reg. no. 510422223 (the “Licensor”) and Wize
Pharma Ltd., reg. no. 520033259, the former name of which is Star Night Technologies Ltd. (the “Licensee”)
(the Licensor and the Licensee shall be collectively referred to hereinafter as the “Parties”).


 


WHEREAS,
the Licensor and the Licensee have entered into that certain Exclusive Distribution and Licensing Agreement dated May 1, 2015
(the “License Agreement”), setting forth the terms and conditions of the license and distributor’s rights
granted by the Licensor to the Licensee solely in the territory of the United States of America; and


 


WHEREAS,
the Licensor and the Licensee have expanded the scope of the License Agreement to additional territories by executing an two amendments
to the License Agreement: (i) an amendment expanding the License Agreement to the territory of the State of Israel; and (ii) an
amendment expanding the License Agreement to the territory of Ukraine (collectively the “Previous Amendments”);
and


 


WHEREAS,
the Licensee has signed a Framework Agreement with a leading Chinese pharmaceutical wholesale corporation (“Distributor”),
in the territory of the People’s Republic of China (the “Prospected Chinese Sub-Distribution Agreement”
and “China”, respectively); and


 


WHEREAS,
the Licensor and the Licensee wish to apply the terms of the License Agreement to the territory of China, conditioned on the execution
of Prospected Chinese Sub-Distribution Agreement, as further provided in this Third Amendment


 


NOW
THEREFORE, the Parties hereby declare and agree as follows:


 


		1.	Capitalized
                                         terms used but not otherwise defined herein shall have the meaning ascribed to them in
                                         the License Agreement.



 


		2.	This
                                         Third Amendment is expressly conditioned on the execution of Prospected Chinese Sub-Distribution
                                         Agreement. In the event Prospected Chinese Sub-Distribution Agreement has not been duly
                                         executed by all parties thereto by June 1, 2018, this Third Amendment shall be deemed
                                         null, void and of no force.



 


		3.	The
                                         following terms are agreed between the Parties, and shall accordingly amend the License
                                         Agreement:



 


		a.	The
                                         term of 7 years specified in Articles 11.2 of the License Agreement shall be changed
                                         to 60 months automatically renewed for additional 12-month periods (only in regards to
                                         this Third Amendment) based on Licensee’s fulfillment of obligations set forth
                                         herein (the “Term”). The aforesaid amended shall apply to all references
                                         to the Term of the Agreement (including to “minimum duration” or such other
                                         references in the Agreement) mutatis mutandis.



 


		b.	The
                                         Licensee’s rights and obligations under the License Agreement shall be expanded
                                         to the territory of China, so that the term “Territory” shall be amended
                                         as set forth below in Section 5(a) of this Third Amendment, and the provisions of the
                                         License Agreement shall apply to the Territory (as amended hereby, including China) mutatis
                                         mutandis.



 






    


     


    

 


		c.	The
                                         Common Technical Document (CTD) submitted to DISTRIBUTOR is the property of the Licensor
                                         and Licensor grants Licensee the right to freely use the CTD for the purposes of executing
                                         and carrying out the Prospected Chinese Sub-Distribution Agreement.



 


		d.	Licensee
                                         will ensure that the Prospected Chinese Sub-Distribution Agreement obligates Distributor
                                         to transfer the Chinese Market License, obtained by Distributor to the Licensor so that
                                         the Chinese Market License will become the property of the Licensor, upon termination
                                         of the Prospected Chinese Sub-Distribution Agreement.



 


		4.	As
                                         of the Effective Date and throughout the Term the following sections of the License Agreement
                                         shall be amended as follows:



 


		a)	Under
                                         the heading “Definitions” in the preamble of the License Agreement
                                         the definition of “Territory” shall be replaced in its entirety by the following
                                         language:



 


“Territory”
shall mean the United States of America and the People’s Republic of China.”


 


		b)	Throughout
                                         the entire License Agreement the term “FDA” should shall be replaced
                                         by the following language:



 


“FDA
(US Food and Drug Administration) and/or CFDA (China Food and Drugs Administration), as applicable”


 


		c)	At
                                         the end of Article 7.1 in the License Agreement the following language shall
                                         be added:



 


“Solely
with respect to the territory of China (and for avoidance of any doubt - without derogating from the Licensee’s obligations
to make full payments under this Article 7 with regard to the USA) the following shall apply:


 





		1.	The
                                         royalty payment per Unit/Box and yearly minimum royalty payment obligations, as described
                                         in this Article 7, shall commence on the earlier of January 1 of the year following the
                                         year in which any type of marketing approval is obtained for the Finished Product in
                                         China (the “China Royalties Commencement Date”);



 


		2.	“Unit/Box”
                                         shall mean a package of 30 unit-dose eye drops (namely 30 single-dose containers of eye
                                         drops, hereinafter the “Unit-Dose Eye Drops”) described in Appendix A. 



 


		3.	During
                                         the first [***] years starting from the China Royalties Commencement Date (the “Grace
                                         Period”), the Licensee shall pay the Licensor a reduced royalty payment of
                                         $[***] per each Unit/Box of the Finished Product and/or any other product making use
                                         of the Licensed Technology actually sold in China (and for which payment is actually
                                         received by Licensee) (the “Reduced Royalty Payment”). Following the
                                         Grace Period the Licensee shall pay the Licensor a regular royalty payment of $[***]
                                         per each Unit/Box of the Finished Product and/or any other product making use of the
                                         Licensed Technology actually sold in China (and for which payment is actually received
                                         by Licensee).



 


		4.	For
                                         any sales in the Territory prior to the China Royalties Commencement Date the Licensee
                                         shall pay the Licensor a regular royalty payment of $[***] per each Unit/Box of the Finished
                                         Product, 



 






    	 	2	 



     


    

 


		5.	Following
                                         the Grace Period, the Licensor shall participate in the cost of reasonable and customary
                                         financial instrument that will be purchased by the Licensee in order to protect its’
                                         distribution activity in China from fluctuations in rates of foreign currencies (the
                                         “Insurance Cost”). The Licensor’s share in the Insurance Cost
                                         shall be to the Insurance Cost covering the fluctuation of $[***] per each Unit/Box of
                                         the Finished Product. The aforesaid Licensor’s share shall be paid by the Licensor
                                         against a proper invoice from the Licensee, and in no event shall be deemed as independent
                                         obligation of the Licensor towards the Licensee. The Licensee shall send to the Licensor
                                         documents evidencing the Insurance Cost. 



 


		6.	The
                                         minimum yearly royalty payments as described in this Section 7 with respect to sales
                                         in China only shall be as follows:



 


	 	Year	Unit-Dose
    	Royalty
    in $	Reduced
Royalty in $

	 	[***]
    month as of the Commencement Date	[***]	[***]	[***]
	 	[***]
    month as of the Commencement Date	[***]	[***]	[***]
	 	[***]
    month as of the Commencement Date	[***]	[***]	  [***]*
	 	[***]
    month as of the Commencement Date	[***]	[***]	  [***]*
	 	[***]
    month as of the Commencement Date and later	[***]	[***]	  [***]*


 


	 	*	These numbers are relevant solely for the purpose of
sub-section (7) below.




 


		7.	In
                                         case after the Grace Period a calculation of a certain year’s royalty payment shall
                                         exceed an amount equal to [***] times the applicable minimum yearly royalty payment stated
                                         in Section (6) above (the “[***] Reduced Payment”), then for that
                                         specific year the Licensee shall pay the Licensor the Reduced Royalty Payment for any
                                         sales that exceed the [***] Reduced Payment



 






    	 	3	 



     


    

 


		8.	Without
                                         derogating from Licensee’s obligation to complete until the end of each calendar
                                         year the full payment of the minimum royalty payments as described in sub-section (6)
                                         above, the Licensee shall pay royalty payments as described in Article 7 of the License
                                         Agreement within 14 (fourteen) days following an actual payment received by the Licensee
                                         from its clients of sub-distributors (including Distributor The burden of proof with
                                         respect to any non-payment to the Licensee is expressly imposed on the Licensee



 


		9.	The
                                         minimum duration for termination, as described and defined in Sec. 11.1 below, shall
                                         be five (5) years commencing from the Commencement Date All other provisions of Article
                                         11 shall apply to the territory of China mutatis mutandis. 



 


		d)	At
                                         the end of Articles 7.1 the following language shall be added:



 


“Solely
with respect to the territory of the USA:” 


 


		e)	At
                                         the beginning of Article 12.3 the following language shall be added:



 


“Solely
with respect to the territory of the USA:”


 


		f)	At
                                         the end of Article 15.1 the following language shall be added:



 


“Solely
with respect to the territory of China and notwithstanding anything to the contrary in this Agreement, the Finished Product
shall be marked under the trademark ’Lacrycon®’” or any other brand approved by Licensor.


 


		5.	Sections
                                         5 and 6 of Appendix A to the License Agreement as well as Appendices B and C in their
                                         entirety shall not apply to the territory of China.



 


		6.	Notwithstanding
                                         anything to the contrary in the License Agreement, the rights granted to the Licensee
                                         with respect to the territory of China shall apply only to the Product Any deviation
                                         therefrom as well as any change in the line of R&D or marketing activity of the Licensee
                                         in connection with the Chinese market requires prior written consent of the Licensor.
                                         Without derogating from the generality of the foregoing and of the applying of the License
                                         Agreement on the territory of China, and for the avoidance of any doubt, the Licensee
                                         may not engage with any manufacturer other that PharmaStulln Germany without prior written
                                         consent of the Licensor.



 


		7.	Except
                                         as explicitly provided above, this Third Amendment shall not derogate from or amend the
                                         provisions of the License Agreement or the Previous Amendments, and they shall remain
                                         in full force and effect throughout their terms.



 


		8.	The
                                         Prospected Chinese Sub-Distribution Agreement shall include provisions according to which
                                         Distributor consents that immediately upon the occurrence of any of the events described
                                         in Article 12.1 of the License Agreement, any and all rights of the Licensee under the
                                         Prospected Chinese Sub-Distribution Agreement shall be transferred, or assigned, subject
                                         however to the Licensor’s prior written consent to the Licensor. In any case, Licensor
                                         will ensure that the manufacturing authorization license to PharmaStulln will continue.



 


		9.	For
                                         the avoidance of doubt, the Licensor expressly disclaims any direct liability towards
                                         any third party, including Distributor, in connection with the Prospected Chinese Sub-Distribution
                                         Agreement.



 


		10.	Except
                                         for the termination in accordance with Article 12.1 to the License Agreement, termination
                                         of the License Agreement with respect to the territory of the USA will not result in
                                         termination of the terms of License Agreement with respect to China.



 






    	 	4	 



     


    

 


		11.	Miscellaneous.



 


		a)	The
                                         License Agreement, the Previous Amendments and this Third Amendment constitutes the entire
                                         understanding and agreement between the Parties with regard to the subject matter hereof
                                         and supersedes any and all prior discussions, agreements and correspondence with regard
                                         to the subject matter hereof. In the event of any inconsistency between the provisions
                                         of this Third Amendment and the provisions of the License Agreement and Previous Amendments,
                                         the provisions of this Third Amendment shall prevail.



 


		b)	Any
                                         term of this Third Amendment may be amended and the observance of any term of this Third
                                         Amendment may be waived (either generally or in a particular instance and either retroactively
                                         or prospectively), only with the written consent executed by the Parties.



  


IN
WITNESS WHEREOF, the Parties have entered into this Third Amendment as of the date written above.


 





	Resdevco Research and Development Company Ltd.	 	Wize Pharma Ltd.
	 	 	 	 	 
	By:	/s/ Professor S. Dikstein	 	By:	/s/ Or Eisenberg
	Title:	CEO



	 	Title:	CFO and Acting CEO



 


 


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