exh10-5.htm


    
      Exhibit
        10.5

       

      CONFIDENTIAL
        MATERIALS OMITTED AND FILED SEPARATELY WITH

      


      THE
        SECURITIES AND EXCHANGE COMMISSION. ASTERISKS DENOTE OMISSIONS

      


      AMENDMENT
        NO. 1 TO

      PRODUCT
        LICENSE AND ASSIGNMENT AGREEMENT

      


      This
        Amendment No. 1 to that certain Product License and Assignment Agreement
        (this
“Amendment”) is made and entered into as of August 30, 2007 by and among CYTOGEN
        CORPORATION, a Delaware corporation having an address at 650 College Road
        East,
        Suite 3100, Princeton, New Jersey 08540, United States (“Cytogen”),
        INPHARMA AS, a Norwegian company having an address at Pb 2030 (Konnerudgt.
        27),
        3003 Drammen, Norway (“Inpharma Norway”),  and INPHARMA, INC.,
        a Delaware corporation having an address at 101 Federal Street, Suite 1900,
        Boston, Massachusetts 02110 (“Inpharma USA,” together with Inpharma
        Norway, “Inpharma”).

      


      RECITALS

      


      
        	
                A.

              	
                Cytogen
                  and Inpharma entered into a Product License and Assignment Agreement
                  dated
                  as of October 11, 2006 (the “License
                  Agreement”).

              


      

      


      
        	
                B.

              	
                Cytogen
                  and Inpharma wish to amend the terms of the License Agreement as
                  set forth
                  below in accordance with Section 9.05 of the License
                  Agreement.

              


      

      


      NOW,
        THEREFORE, in consideration of the foregoing, the mutual covenants and
        agreements herein contained and other good and valuable consideration, the
        receipt and adequacy of which is hereby acknowledged, the Parties, intending
        to
        be legally bound, hereby agree as follows:

      


      
        	
                 

              	
                1.

              	
                Any
                  defined terms utilized herein and not otherwise defined herein
                  shall have
                  the meaning ascribed thereto in the License
                  Agreement.

              


      

       

      
        	
                 

              	
                2.

              	
                The
                  first sentence of Section 2.04(a) is hereby amended to provide
                  in its
                  entirety as follows: “Inpharma hereby grants to Cytogen the exclusive
                  options to acquire the exclusive licenses to market, distribute,
                  sell and
                  otherwise commercialize and Exploit the Product in each of Europe
                  and Asia
                  (the “Options”).”

              


      

       

      
        	
                 

              	
                3.

              	
                Section
                  3.04 of the License Agreement is hereby amended to provide in its
                  entirety
                  as follows:

              


      

       

      Section
        3.04   Option Payments.

       

      Cytogen
        shall pay Inpharma the following consideration for the Options granted under
        Section 2.04(a):

       

      (a)           As
        consideration for the grant of the Option, on the Effective Date Cytogen
        shall
        pay Inpharma a fee of [**] (the “Upfront Option
        Fee”).   The exercise price for the option for Asia shall be
        [**], against which [**] of the Upfront Option Fee shall be
        credited.  Cytogen may, at its sole discretion, exercise its Option
        for either Europe or Asia or both territories, and the fees set forth above
        shall be independent of each other.

       

       

      
        
          
          

        

        
          
          

          
            

          

        

        
          
          

        

      

       

       

      (b)           If
        Cytogen exercises the Option for Asia, future milestone payments shall be
        payable by Cytogen to Inpharma as follows:

       

      (i)           Cytogen
        shall make a one-time additional payment of [**] to Inpharma if and when
        Net
        Sales to third parties in Asia equal or exceed [**] in any Year for the first
        time;

       

      (ii)          Cytogen
        shall make a one-time additional payment of [**] to Inpharma if and when
        Net
        Sales to third parties in Asia reach [**] in any Year for a second time;
        and

       

      (iii)         Cytogen
        shall pay to Inpharma [**] of any upfront license fees and milestone payments
        (but not royalties) received by Cytogen or its Affiliates in consideration
        of
        the grant by Cytogen or its Affiliates of the license or equivalent right
        to
        Exploit the Product in any country or countries in Asia, to the extent such
        upfront license fees and milestone payments are in excess of the amount paid
        by
        Cytogen to Inpharma for such rights pursuant to 3.04(a).  For the
        purposes of this Section 3.04, the term “upfront license fees” means
        [**].

       

      (c)           The
        exercise price for the option for Europe shall be [**] which represents [**]
        of
        the upfront license fees received by Cytogen or its Affiliates in consideration
        of the grant by Cytogen or its Affiliates of the license or equivalent right
        to
        Exploit the Product in any country or countries in Europe.

       

      (d)           Cytogen
        shall pay to Inpharma [**] of any sales milestone payments (but not royalties)
        received by Cytogen or its Affiliates in consideration of the grant by Cytogen
        or its Affiliates of the license or equivalent right to Exploit the Product
        in
        any country or countries in Europe.  The Parties agree that the sales
        milestones payments receivable by Cytogen or its Affiliates for the grant
        of
        rights in Europe are as follows:

       

      (i)           a
        one-time additional payment of [**] to Cytogen in the event net sales of
        the
        Product by the licensee to unaffiliated third parties within Europe in any
        twelve-month period reach [**] for the first time;

       

      (ii)           a
        one-time additional payment of [**] to Cytogen in the event net sales of
        the
        Product by the licensee to unaffiliated third parties within Europe in any
        twelve-month period reach [**] for the first time;

       

      (iii)           a
        one-time additional payment of [**] to Cytogen in the event net sales of
        the
        Product by the licensee to unaffiliated third parties within Europe in any
        twelve-month period reach [**] for the first time;

       

      (iv)           a
        one-time additional payment of [**] to Cytogen in the event net sales of
        the
        Product by the licensee to unaffiliated third

       

       

       

      
        
          
          

        

        
          2

          
            

          

        

        
          
          

        

      

       

       

       parties
        within Europe in any twelve-month period reach [**] for the first time;
        and

       

      (v)           a
        one-time additional payment of [**] to Cytogen in the event net sales of
        the
        Product by the licensee to unaffiliated third parties within Europe in any
        twelve-month period reach [**] for the first time.

       

      (e)           The
        amounts payable by Cytogen to Inpharma under Sections 3.04 (c) and (d) shall
        not
        exceed [**] in the aggregate.

       

      (f)           In
        the event the Options for Europe or Asia is not exercised by Cytogen and
        any of
        such Options expire, Cytogen shall provide to Inpharma [**].

       

      
        	
                 

              	
                4.

              	
                The
                  Parties understand and agree that the execution of this Amendment
                  does not
                  extend the term of the Options set forth in Section 2.04 of the
                  License
                  Agreement beyond [**].

              


      

       

      
        	
                 

              	
                5.

              	
                Except
                  as expressly provided in this Amendment, all other terms, conditions
                  and
                  provisions of the License Agreement shall continue in full force
                  and
                  effect as provided therein. Any reference to the License Agreement
                  in any
                  instrument or agreement shall mean and include the License Agreement
                  as
                  amended by this Amendment.  In the event of any conflict between
                  the terms of the License Agreement and the terms of this Amendment,
                  the
                  terms of this Amendment shall govern and
                  control.

              


      

       

      
        	
                 

              	
                6.

              	
                The
                  License Agreement and this Amendment constitute the entire understanding
                  between the parties, except as expressly set forth herein, and
                  supersede
                  any contracts, agreements or understanding (oral or written) of
                  the
                  parties with respect to the subject matter hereof.  No term of
                  this Amendment may be amended except upon written agreement of
                  both
                  parties.

              


      

       

      
        	
                 

              	
                7.

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

              


      

       

      IN
        WITNESS WHEREOF, Cytogen and Inpharma have entered into this Amendment effective
        as of the date first set forth above.

      


      CYTOGEN
        CORPORATION

      


      By
/s/
        Michael D. Becker

      Michael
        D. Becker

      President
        and Chief Executive Officer

      


      


      INPHARMA
        AS

      


      By
/s/
        Asbjorn R. Hansen

      Name:
        Asbjorn R. Hansen

      Title:
        President and CEO

       

       

      
        
          
          

        

        
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