Exhibit 2.2
LICENSE ASSIGNMENT AND AMENDMENT AGREEMENT
This LICENSE ASSIGNMENT AND AMENDMENT AGREEMENT, dated as of October 9,
2001 (this "Agreement"), by and among DR. NICHOLAS BODOR, an individual
("Bodor"), PHARMOS CORPORATION, a Nevada corporation ("Pharmos"), and BAUSCH &
LOMB INCORPORATED, a Delaware corporation ("B&L"). References to Bodor, Pharmos
and B&L hereunder shall include each of their respective agents, nominees,
designees, successors, assigns, heirs or other successors-in-interest.
W I T N E S S E T H:
WHEREAS, Pharmos has agreed to sell B&L its ophthalmic business comprising
or relating to the development or commercialization of products using
loteprednol etabonate ("LE") as an active ingredient for the treatment,
prevention and/or diagnosis of any disease, disorder and/or condition of the
eye, in humans or in animals (collectively, the "LE Business"), pursuant to an
Asset Purchase Agreement, dated as of the date hereof, by and between Pharmos
and B&L (the "Asset Purchase Agreement") and its related agreements and
transactions (collectively, the "Transaction");
WHEREAS, a condition of B&L's obligations under the Asset Purchase
Agreement is the assignment by Pharmos to B&L of all of its rights under the
License Agreement, dated as of April 1, 1993, by and between Bodor and Pharmos
(the "Bodor License Agreement") ;
WHEREAS, Bodor agrees to (i) consent to the assignment from Pharmos to B&L
of all of Pharmos' rights and obligations under the Bodor License Agreement;
(ii) the assumption of Pharmos' rights and obligations under the Bodor License
Agreement by B&L; (iii) amend the Bodor License Agreement in certain respects;
and (iv) waive any claims he may have against Pharmos with respect to the Bodor
License Agreement, all subject to and in accordance with the provisions of this
Agreement.
WHEREAS, Pharmos agrees to (i) assign its rights and obligations under the
Bodor License Agreement to B&L; (ii) make certain payments to Bodor as provided
for herein; (iii) retain no residual or other rights under the Bodor License
Agreement; and (iv) waive any claims it may have against Bodor with respect to
the Bodor License Agreement, all subject to and in accordance with the
provisions of this Agreement; and
WHEREAS, B&L agrees to (i) assume, and be solely responsible for, all of
Pharmos' rights and obligations under the Bodor License Agreement as amended
hereby; and (ii) amend the Bodor License Agreement in certain respects, all
subject to and in accordance with the provisions of this Agreement.
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NOW THEREFORE, in consideration of the premises and the mutual covenants
contained herein and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto hereby agree as
follows:
1. Consent by Bodor to Assignment and Release. Bodor hereby consents to the
assignment of the Bodor License Agreement from Pharmos to B&L effective as of
the date hereof (the "Closing"). By execution hereof and subject only to and
conditioned only upon the performance by Pharmos of all of its obligations under
this Agreement, effective as of the Closing Bodor hereby releases and forever
discharges Pharmos, its agents and representatives, and their respective
successors and assigns from any and all liability for claims, rights, causes of
action, suits, debts, dues, sums of money, accounts, reckonings, bonds,
executions and demands whatsoever, in law or equity, which Bodor ever had, now
has or hereafter can, shall or may have, relating to the Bodor License Agreement
and the Stipulation of Settlement dated April 18, 1996 between Pharmos and Bodor
(the "Stipulation of Settlement") or the subject matter related thereto,
including, without limitation, any claims to any amounts owed to Bodor for
licensing or sublicensing fees, royalties, maintenance fees, incentive milestone
payments or otherwise.
2. Payments by Pharmos to Bodor, Other Consideration and Release. In
consideration for Bodor's agreements provided in Section 1 above, Pharmos agrees
to the following:
(a) In connection with the closing of the Transaction, Pharmos shall pay to
Bodor 11% of the "Cash Consideration," as defined under the Asset Purchase
Agreement, Pharmos receives from B&L, which relates to its sale of its
Lotemax and Alrex products, payable to Bodor as follows:
(i) $1,493,678.10 [6%] to be paid to Bodor by Pharmos at the Closing; and
(ii) $1,244,731.80 [5%] to be paid to Bodor by Pharmos on the first
anniversary of the Closing(the "Second Payment"). To secure the
obligation of Pharmos to make the Second Payment, Pharmos will deliver
to Bodor at the Closing a standby letter of credit or a bank guaranty
in the amount of the Second Payment in form reasonably satisfactory to
Bodor.
(b) At the Closing, Pharmos will also pay to Bodor the sum of $200,000 to
offset Bodor's closing, legal and other costs associated with the
Transaction and the transactions contemplated by this Agreement.
(c) Pharmos shall pay to Bodor 11% of the cash proceeds, if any, it receives
from B&L as the "First Contingent Payment" (as defined in the Asset
Purchase Agreement), which relates to Pharmos' LET (as defined in the Asset
Purchase Agreement) product, which amount will be payable to Bodor upon
Pharmos's receipt of the First Contingent Payment from B&L.
(d) Pharmos shall pay to Bodor 14.3% of the cash proceeds, if any, it receives
from B&L as the "Second Contingent Payment" (as defined in the Asset
Purchase Agreement), which also
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relates to LET, which amount will be payable to Bodor upon Pharmos' receipt
of the Second Contingent Payment from B&L.
(e) All payments to be made to Bodor hereunder shall be in the form of wire
transfers in immediately available funds, based on instructions to be given
to Pharmos from Bodor.
(f) Effective as of the Closing, Pharmos hereby waives and relinquishes any and
all rights it has under the Stipulation of Settlement, including without
limitation, the right to recoupment of royalty advances previously made by
Pharmos to Bodor, the current balance of which is approximately $143,000.
(g) Effective as of the Closing, Pharmos (i) hereby relinquishes any and all
rights it has under the Bodor License Agreement and (ii) no longer shall
have any rights under the Bodor License Agreement.
(h) By execution hereof and subject only to and conditioned only upon the
obligations of Bodor under this Agreement, effective as of the Closing,
Pharmos hereby releases and forever discharges Bodor, his agents and
representatives, and their respective successors and assigns from any and
all liability for claims, rights, causes of action, suits, debts, dues,
sums of money, accounts, reckonings, bonds, executions and demands
whatsoever, in law or equity, Pharmos ever had, now has or hereafter can,
shall or may, have relating to the Bodor License Agreement and the
Stipulation of Settlement or the subject matter related thereto, including,
without limitation, any claims to any amounts owed by Bodor for royalty
advances or otherwise.
3. Assumption of Bodor License Agreement. Effective as of the Closing, B&L
hereby assumes and shall be solely responsible for all of the obligations and
liabilities of Pharmos as licensee under the Bodor License Agreement, as amended
hereby, including the liabilities of Pharmos for all royalty payments arising
after August 31, 2001 pursuant to Section 4.1(a)(i) and 4.1(b) of the Bodor
License Agreement. Bodor agrees that effective as of the Closing, Pharmos shall
have no further obligations or liabilities under the Bodor License Agreement.
4. Amendment of Bodor License Agreement. B&L and Bodor agree that, effective as
of the Closing, the Bodor License Agreement is hereby amended as follows:
(a) to change all references therein to "Pharmos" to "B&L";
(b) to substitute the addresses set forth in Section 16 hereof for the
addresses set forth in Section 12.3 of the Bodor License Agreement;
(c) to delete from Section 1.7 all references to nasal and otic;
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(d) all references to calendar periods are hereby changed to the corresponding
B&L fiscal period based upon the fiscal year of B&L which is the 52 or 53
week period ending on the last Saturday of each December;
(e) the introduction of Section 1.10 is hereby amended to read " `Net Sales'
means the price actually charged by B&L in the sale of a Licensed Product,
including without limitation, sales to distributors, less:" and the
provisions of Subsections (a), (b) and (c) of Section 1.10 shall remain in
full force and effect without amendment;
(f) Section 1.12 is hereby amended by changing the word "Australia" to
"Austria";
(g) Section 3.5 is deleted in its entirety;
(h) Section 4.8 is hereby amended to provide that royalty payments to Bodor
will be made on a monthly basis within forty five (45) days after the end
of the month for which such royalty payments are due, rather than a
quarterly basis;
(i) Section 4.8(b) is hereby amended to permit accounting of sales and receipts
by B&L to be reported by individual B&L reporting units;
(j) Section 4.9(a) is hereby amended to provide that B&L shall maintain the
records referred to therein in accordance with B&L records retention
policies as in effect from time to time, including, without limitation,
policies relating to duration of records retention, and that such records
shall be available for examination by Bodor as provided in Section 4.9(a);
(k) Section 12.1 is hereby deleted in its entirety and replaced with the
following:
"Section 12.1 Assignment. This Agreement shall not be assigned by either
party without the prior written consent of the other party; provided,
however, that B&L may assign its rights under this Agreement to: (i) any
corporation, partnership, joint venture or other business entity which
controls, is controlled by, or is under common control with B&L (a "B&L
Affiliate"); (ii) any purchaser of all or substantially all of the assets
of B&L; (iii) any purchaser of all or substantially all of the assets of
any B&L Affiliate; or (iv) any purchaser of less than substantially all of
the assets of B&L or any B&L Affiliate; provided, however, in the case of
(ii), (ii) and (iv), that the assets being purchased include all or
substantially all of the Assets of the Business (as defined below); and
provided further, however, in the case of (iii) and (iv), if the value of
the Assets of the Business (as defined below) represents 33 1/3% or more of
the value of all of the assets being purchased pursuant to such
transaction, then no such assignment shall become effective unless prior
thereto Bodor receives 14.3% of the product derived by multiplying the
aggregate consideration received by B&L or any B&L Affiliate from the
assignee times the percentage that the value of the Assets of the Business
represent to the total value of the assets being sold. The value of the
Assets of the Business and the value of all of the assets being sold shall
be determined by a nationally recognized investment banking firm that has
not been retained by or on behalf of B&L or Bodor at any
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time during the three (3) year period immediately preceding the date of the
engagement of such investment banking firm (an "Independent Investment
Banker") mutually agreed upon in good faith by the parties. If Bodor and
B&L are not able to mutually agree upon an Independent Investment Banker
within ten (10) days, the parties shall each appoint an Independent
Investment Banker (the costs of which shall be borne by the party engaging
the Independent Investment Banker) and the two Independent Investment
Bankers shall select a third Independent Investment Banker to decide the
dispute. The costs of the Independent Investment Banker which decides the
dispute shall be borne equally by Bodor and B&L and its decision shall be
binding on Bodor and B&L. In the event that the consideration received by
B&L or any B&L Affiliate in a transaction described in clauses (iii) or
(iv), above, is received in the form of cash, one (1) or more promissory
notes, securities or any combination thereof, the amount to be paid to
Bodor pursuant to this Section, if any, shall be paid in the same forms and
proportions as received by B&L or any B&L Affiliate. In the event that the
consideration received by B&L or any B&L Affiliate in a transaction
described in clauses (iii) or (iv), above, is received in any form other
than cash, one (1) or more promissory notes or securities, the Independent
Investment Banker shall determine the value of the consideration received
by B&L or such B&L Affiliate, and the amount to be paid to Bodor pursuant
to this Section, if any, shall be paid in cash. The "Assets of the
Business" means all assets of B&L's ophthalmic business, whether conducted
through B&L or a B&L Affiliate, to the extent, and only to the extent,
comprising or relating to the development or commercialization of Licensed
Products for the treatment, prevention and/or diagnosis of any disease,
disorder and/or condition of the eye, in humans or in animals. The parties
affirmatively acknowledge and agree that the outsourcing by B&L or any B&L
Affiliate to any third party of the manufacture of any of the Licensed
Products for exclusive supply to B&L or any B&L Affiliate shall not
constitute an assignment by B&L or any B&L Affiliate and shall not
constitute a Third Party Sublicense (as defined in Section 4.2). This
Agreement shall be the obligation of each party hereto and other successors
and assigns of each party hereto."
(l) Section 12.5 is hereby amended to add a new subsection (f) which shall read
as follows:
"B&L shall disclose to Bodor all data and reports, including toxicology
reports and clinical reports, developed by or at the request of B&L, which
relate to the development of Licensed Products under the Licensed Patents.
B&L shall provide such data and reports to Bodor within thirty (30) days of
the completion or internal publication within B&L of any such data and
reports. Bodor shall disclose to B&L all data and reports, including
toxicology reports and clinical reports, developed by or at the request of
Bodor or otherwise provided to Bodor, which relate to the development of
Licensed Products under the Licensed Patents. Bodor shall provide such data
and reports to B&L within thirty (30) days of the completion of any such
data or reports. Bodor agrees to treat information they receive from the
other party pursuant to this Section 12.5(f) as Proprietary Information,
provided, however, that notwithstanding the provisions of Section 7.6(a),
B&L acknowledges and agrees that Bodor and his licensees have the right to
use and reference the Drug Master Files, Investigational Drug Files and New
Drug Application files that relate to the development of Licensed
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Products under the Licensed Patents. Within ten (10) days after a request
by Bodor, B&L will provide Bodor a letter confirming that Bodor and his
other licensees have the right to use and reference the Drug Master Files,
Investigational Drug Files and New Drug Application files which relate to
the development of Licensed Products under the Licensed Patents."
(m) The last sentence of Section 12.5(d) is hereby amended to read in its
entirety as follows: "B&L will use its commercially reasonable efforts to
provide to Bodor its annual marketing plans and sales forecasts for
Licensed Products within thirty (30) days following their finalization."
All other provisions of the Bodor License Agreement not in conflict with any of
the above amendments shall remain in full force and effect. In the event of
conflict between the provisions of the Bodor License Agreement and the above
amendments, the above amendments shall prevail.
5. Sipsy. After the Closing, B&L agrees that Bodor and his licensees shall
continue to have the right to purchase unlimited quantities of LE directly from
SIPSY Chemical Corporation ("SIPSY"), provided that such purchases do not
materially interfere with or impede B&L's commercial efforts with regard
thereto. Not later than March 31 of each year, each of B&L and Bodor shall
deliver to the other a good faith estimate of the quantity of LE that it intends
to purchase from SIPSY during the next calendar year. B&L shall have the right
to purchase quantities of LE from SIPSY in excess of its estimate provided that
B&L shall not purchase LE from SIPSY in excess of its estimate to the extent
that Sipsy informs B&L that such purchase would prohibit SIPSY from supplying
Bodor the quantity of LE equal to Bodor's estimate for such calendar year. Bodor
agrees that he will not use, directly or indirectly, the LE purchased from SIPSY
in a manner that competes, directly or indirectly, with B&L's use of LE in
accordance with the Bodor License Agreement at any time following the Closing.
6. Stipulation of Settlement. Effective as of the Closing, the Stipulation of
Settlement is hereby terminated and the provisions thereof shall no longer be of
any force and effect.
7. Asset Purchase Agreement; Termination. Pharmos and B&L each represent and
warrant to Bodor, on their own behalf only, that Bodor has been provided with
the final executed copy of the Asset Purchase Agreement, including all exhibits
and schedules thereto, which represents the entire agreement, between the
parties with respect to the sale of the LE Business and the consideration to be
paid by B&L to Pharmos with respect thereto. Pharmos and B&L each covenant and
agree, as to itself only, not to amend the Asset Purchase Agreement after the
Closing without the prior written consent of Bodor in any respect that would
materially affect the rights of Bodor hereunder.
8. Representations and Warranties of Bodor. Bodor hereby represents and warrants
to Pharmos and to B&L, as of the date hereof and as of the Closing, that: (i)
the execution, delivery and performance of this Agreement by Bodor and the
consummation of the transactions contemplated hereby do not and will not
constitute a breach of any agreement to which he is a party or violate any
provision of any law to which he is subject; (ii) no consent of any person or
governmental entity is required in connection with the execution or delivery of
this Agreement by Bodor or the
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consummation of the transactions contemplated hereby; (iii) there are no
actions, suits, proceedings, orders, grievance proceeding or claims pending or,
to Bodor's knowledge, threatened against him relating to the Bodor License
Agreement or this Agreement, or the subject matter thereof and hereof; (iv)
there is no default, or event which with the passage of time would constitute a
default, under the Bodor License Agreement by either Bodor or Pharmos; (v) at
the Closing, upon consummation of the transactions contemplated by this
Agreement, there will be no amounts owed Bodor by Pharmos or Pharmos by Bodor
other than as separately identified and provided in this Agreement; (vi) Bodor
has been provided with what Pharmos and B&L represent and warrant is a final,
executed copy of the Asset Purchase Agreement, including all exhibits and
schedules thereto, and has had an opportunity to review the Asset Purchase
Agreement, including all exhibits and schedules thereto, and this Agreement with
his counsel; (vii) all Incentive Milestone Payments due or to become due to
Bodor pursuant to the Bodor License Agreement with respect to LE, including
without limitation any combination products including LE, have been made by
Pharmos prior to the date hereof and no further Incentive Milestone Payments
will be incurred or become payable with respect to LE or any combination product
including LE after the date hereof; and (viii) there are no sales by Pharmos or
its sublicensees in countries that do not provide patent protection for the
Licensed Patents for any reason and where any person or entity has commenced
sales of Licensed Products or products that would have been forbidden had patent
protection been available in such countries such that a reduced royalty is paid
in connection with sales of LE by Pharmos or its sublicensees in such countries
as provided in Section 4.7 of the Bodor License Agreement; (ix) attached as
Exhibit A hereto is a true, correct and complete listing of all countries in
which Bodor has filed for and obtained patent protection with respect to LE,
which patent protection is presently in effect, and the scheduled expiration
dates contained in such patent protections are as set forth in Exhibit A; and
(x) the Bodor License Agreement is in full force and effect and is enforceable
in accordance with its terms, and effective as of the Closing, upon consummation
of the transactions contemplated by this Agreement, the Bodor License Agreement,
as amended herein, will be enforceable against Bodor by B&L.
9. Representations and Warranties of Pharmos. Pharmos hereby represents and
warrants to Bodor and B&L, as of the date hereof and as of the Closing, that:
(i) this Agreement has been authorized by the Board of Directors of Pharmos, and
the execution, delivery and performance of this Agreement by Pharmos and the
consummation of the transactions contemplated hereby do not and will not
constitute a breach of the Articles of Incorporation or By-laws of Pharmos or
any agreement to which Pharmos is a party or violate any provision of any law to
which it is subject; (ii) no consent of any person or governmental entity is
required in connection with the execution or delivery of this Agreement by
Pharmos or the consummation of the transactions contemplated hereby; (iii) there
are no actions, suits, proceedings, orders, grievance proceeding or claims
pending or, to Pharmos' knowledge, threatened against it relating to the Bodor
License Agreement or this Agreement, or the subject matter thereof and hereof;
(iv) there is no default, or event which with the passage of time would
constitute a default, under the Bodor License Agreement by either Bodor or
Pharmos; (v) as of the Closing, upon consummation of the transactions
contemplated by this Agreement, there will be no amounts owed Bodor by Pharmos
or Pharmos by Bodor other than as separately identified and provided in this
Agreement; and (vi) at the Closing, upon consummation of the transactions
contemplated by this Agreement, the Bodor License Agreement, as amended herein,
will be enforceable against Bodor by B&L.
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10. Representations and Warranties of B&L. B&L hereby represents and warrants to
Bodor, as of the date hereof and as of the Closing, that: (i) this Agreement has
been duly authorized by B&L, and the execution, delivery and performance of this
Agreement by B&L and the consummation of the transactions contemplated hereby do
not and will not constitute a breach of the Certificate of Incorporation or
By-laws of B&L or any agreement to which B&L is a party or violate any provision
of any law to which it is subject; (ii) no consent of any person or governmental
entity is required in connection with the execution or delivery of this
Agreement by B&L or the consummation of the transactions contemplated hereby;
(iii) there are no actions, suits, proceedings, orders, grievance proceeding or
claims pending or to B&L's knowledge, threatened against, it relating to this
Agreement or the subject matter hereof; and (iv) as of the Closing, the Bodor
License Agreement, as amended herein, will be enforceable against B&L by Bodor,
except to the extent that its enforceability may be subject to applicable
bankruptcy, insolvency, reorganization, fraudulent conveyance, moratorium or
similar laws affecting the enforcement of creditors rights generally and to
general equitable principles.
11. Marketing Plans; B&L Liaisons. B&L has disclosed to Bodor its contemplated
plans with respect to marketing Lotemax and Alrex. Bodor acknowledges that (i)
he has been afforded an opportunity to ask questions of B&L representatives
familiar with such plans and to request additional information relative to such
plans, (ii) he has had a reasonable and sufficient time to review such plans,
and (iii) B&L may modify such plans in its sole discretion, in which case Bodor
shall have no recourse against B&L as a result of any such modifications. B&L
covenants and agrees with Bodor that following the Closing, B&L will provide to
Bodor reasonable access to senior B&L marketing personnel for the purpose of
obtaining information with respect to the marketing of Lotemax and Alrex. After
the Closing, B&L will designate a senior marketing employee at B&L who is
responsible for marketing Lotemax, Alrex and, if applicable, LET with whom Bodor
may discuss matters relating to the Bodor License Agreement and this Agreement.
12. Further Assurances. The parties hereto agree to timely execute such other
agreements, assignments, consents, waivers or other documents reasonably
necessary to further give effect to or evidence the agreements hereunder.
13. Successors and Assigns. This Agreement shall be binding upon and inure to
the benefit of Bodor, Pharmos and B&L and their respective successors and
assigns.
14. Governing Law. This Agreement shall be deemed to be a contract entered into
pursuant to the laws of the State of New York and shall in all respects be
governed, construed, applied and enforced in accordance with the laws of the
State of New York.
15. No Admissions by Pharmos. Neither this Agreement, nor any previous written
or oral communications between Pharmos and Bodor, and their respective agents
and advisors, constitutes any admission by Pharmos that the execution and
delivery of the Asset Purchase Agreement and/or the consummation of the
Transactions entitles Bodor to any payments within the existing provisions of
the Bodor License Agreement or otherwise.
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16. Notices. All notices and other communications hereunder and under the Bodor
License Agreement shall be in writing and shall be deemed given if delivered
personally or upon sending a copy thereof by first class or express mail,
postage prepaid, or by telegram (with messenger service specified), or reputable
overnight courier services, charges prepaid, to such party's address (or to such
party's telecopier):
If to Bodor, to:
Dr. Nicholas Bodor
10101 Collins Avenue, #4A
Bal Harbour, Florida 33154
With a copy to:
Stearns Weaver Miller Weissler Alhadeff & Sitterson, P.A.
150 West Flagler Street
Miami, Florida 33130
Attention: Thomas J. Quarles, Esq.
If to Pharmos to:
Pharmos Corporation
99 Wood Avenue South, Suite 301
Iselin, New Jersey 08830
Attention: Chief Financial Officer
With a copy to:
Ehrenreich Eilenberg & Krause LLP
11 East 44th Street, 17th Floor
New York, New York 10017
Attention: Adam D. Eilenberg, Esq.
If to B&L, to:
Bausch & Lomb Incorporated
One Bausch & Lomb Place
Rochester, New York 14604-2701
Attention: Vice President Business Development
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With a copy to:
Bausch & Lomb Incorporated
One Bausch & Lomb Place
Rochester, New York 14604-2701
Attention: General Counsel
and to:
Nixon Peabody LLP
P.O. Box 31051
Rochester, New York 14603
Attention: Lori B. Green, Esq.
or to such other Person or address as any of the foregoing may have designated
for that purpose by notice to the others.
17. Miscellaneous. This Agreement constitutes the entire agreement between the
parties with respect to the subject matter hereof and may not be modified in any
manner or terminated except by an instrument in writing executed by the parties
hereto. If any term, covenant or condition of this Agreement is held to be
invalid, illegal or unenforceable in any respect, this Agreement shall be
construed without such provision. This Agreement may be executed in several
counterparts, each of which counterparts shall be deemed an original instrument
and all of which together shall constitute a single Agreement. Whenever the
context may require, any pronouns used herein shall include the corresponding
masculine, feminine or neuter forms, and the singular form of nouns and pronouns
shall include the plural and vice versa.
[Remainder of page left intentionally blank]
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the date first set forth above.
PHARMOS CORPORATION
By: /s/ Robert W. Cook
-------------------------------
Name: Robert W. Cook
Title: Executive Vice President
NICHOLAS BODOR, Ph.D., D.Sc.
/s/ Nicholas Bodor
-------------------------------
BAUSCH & LOMB INCORPORATED
By: /s/ Stephen McCluski
-------------------------------
Name: Stephen McCluski
Title: Senior Vice President
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List of Omitted Exhibits to License Assignment and Amendment Agreement .
Exhibit A Patent Protection with Respect to LE
The Registrant will furnish supplementally a copy of any such Exhibit to the
Commission upon request.