EXHIBIT 10.10
AMENDMENT AGREEMENT
TO THE
LICENSE AGREEMENT
This amendment agreement (the "Agreement") to the license agreement between the
parties hereof dated December 30th, 2000 (the "License Agreement") is made as of
December 23h, 2008 (the "Effective Date") by and between Proteo, Inc., a US
corporation under the laws of Nevada, ("Licensee") and Dr. Oliver Wiedow,
Forstweg 55, 24105 Kiel, Germany. Proteo, Inc. and Dr. Oliver Wiedow are
referred to individually and collectively as a "Party" or the "Parties."
RECITALS
WHEREAS, Licensor has granted certain rights to Licensee with respect to the
compound Elafin as defined in the License Agreement;
WHEREAS, under Section 3.1 of the License Agreement Licensee is obliged to pay
to Licensor an annual license fee in the amount of EUR 110,000 for a period of 6
years, in the aggregate in the amount of EUR 660,000, such payment obligation
being subject to certain reductions as provided for in Section 3.1 of the
License Agreement (the "Lump Sum Payment Obligation");
WHEREAS, under Section 3.2 of the License Agreement Licensee is obliged to pay
to Licensor running royalties in the amount of 3 % of gross revenues earned with
Products based on the Technology Rights by Licensee or Licensee's Subsidiaries;
WHEREAS, based on a resolution of Licensee's Board of Directors dated June 16th,
2001 and pursuant to an agreement between the Parties in March 2004, Licensor
agreed to reduce the installments and thus to partially defer the Lump Sum
Payment Obligation;
WHEREAS, until today, Licensee has only paid to Licensor EUR 30,000 under the
Lump Sum Payment Obligation and thus the open payment obligation under the Lump
Sum Payment Obligation is EUR 630,000 (the "Lump Sum");
NOW, THEREFORE, in consideration of the mutual promises and covenants contained
herein and other good and valuable consideration, the receipt and sufficiency of
which is hereby acknowledged, the Parties, intending to be legally bound, agree
to the following:
SECTION 1
DEFINITIONS
Unless the context otherwise requires, the following capitalized terms in
this Agreement shall have the following meanings (and if the context so
requires, including any gender, plural or singular thereof and including any
capitalized verb, adverb or adjective as relating to such defined term):
"AFFILIATE" or "SUBSIDIARY" shall mean with respect to any Party, any person
which or who directly or indirectly controls, is controlled by, or is under
common control with such Party. For purpose of this definition, "control" means
the power to vote more than 50% of the voting shares or comparable voting
interests.
"AGREEMENT" shall have the meaning set forth in the introductory paragraph
hereof.
Page 1 of 4
"APPLICABLE LAW" shall mean all applicable laws, rules and regulations,
including any rules, regulations, guidelines or other requirements of any
Regulatory Authorities that may be in effect from time to time.
"GERMAN BASE INTEREST RATE" shall mean the interest rate pursuant to Section 247
of the German Civil Code as applicable from time to time.
"LICENSE AGREEMENT" shall have the meaning set forth in Recitals.
"LICENSOR" shall have the meaning set forth in Recitals.
"LICENSEE" shall have the meaning set forth in Recitals.
"LUMP SUM" shall have the meaning set forth in Recitals.
"LUMP SUM PAYMENT OBLIGATION" shall have the meaning set forth in Recitals.
SECTION 2
REVISION OF THE LUMP SUM PAYMENT OBLIGATION
2.1 AMENDMENT TO THE LUMP SUM PAYMENT OBLIGATION. The Parties agree that
the Lump Sum Payment Obligation under Section 3.1 of the License Agreement be
amended and revised as follows with immediate effect:
a) For Licensee's fiscal years 2008 through 2012, the Lump Sum shall be
paid to Licensee in 5 (five) annual installments of EUR 30,000, for Licensee's
fiscal years 2013 through 2016, the Lump Sum shall be paid to Licensee in 4
(four) annual installments of EUR 120,000. If the License Agreement is
terminated pursuant to Section 8.2 or 8.3 of the License Agreement, then any
amount of the Lump Sum outstanding on the day of the termination shall be
immediately payable by Licensee to Licensor.
b) If the economical situation of Licensee improves in a way that Licensee
is in a position to make earlier payments as provided for in Section 2.1 a)
hereof, the Parties shall negotiate and agree on such reasonable earlier
payments and their respective payment date(s).
c) The payment obligations under this Section 2.1 shall terminate upon
Licensor's full receipt of the Lump Sum.
2.2 PAYMENT DATES, INTERESTS.
a) The Parties agree that the payments as provided for in Section 2.1 a)
hereof shall be made no later than on December 31st, of each year. Payments
under Section 2.1 b) shall be made on such dates as agreed to between the
Parties pursuant to Section 2.1 a).
b) The Parties agree that the Lump Sum was not and shall not be interest
bearing, however, payments overdue hereunder shall be subject to an annual
interest rate of 6% above the German Base Interest Rate.
Page 2 of 4
SECTION 3
AMENDMENTS TO SECTIONS 3.2 AND 3.4 OF THE LICENSE AGREEMENT
3.1 The Parties agree that Section 3.2 of the License Agreement is
herewith amended in a way that Licensee shall pay to Licensor running royalties
in the amount of 3% of all gross revenues including such received from the sale
of Products based on Technology Rights or received from license fees (including
but not limited to lump sum payments or running royalties) by Licensee or
Licensee's Subsidiaries.
3.2 The Parties agree that Section 3.4 of the License Agreement is
herewith amended in a way that the accounting and audit rights of licensor shall
relate to all revenues by Licensee or Licensee's Subsidiaries as provided for in
Section 3.1 hereof.
3.3 The amendments provided for under Sections 3.1 and 3.2 shall become
effective on January 1st, 2009.
SECTION 4
STATUTE OF LIMITATIONS
The Parties agree that no statute of limitations or any other time
limitation may be raised against Licensor's claims under the License Agreement
or hereunder. The Parties agree that the Statute of Limitation relating to the
Lump Sum shall be 10 years form the respective due date hereunder.
SECTION 5
NO FURTHER CHANGES
Unless otherwise expressly set forth herein or unless otherwise expressly
agreed to between the Parties in writing, the terms and conditions of the
License Agreement shall not be deemed amended or changed.
SECTION 6
MISCELLANEOUS PROVISIONS
5.1 GENERAL. The provisions of Article 12 of the License Agreement shall
apply hereto.
5.2 NOTICES. Any notice, request, demand, waiver, consent, approval or
other communication permitted or required under this Agreement shall be in
writing, shall refer specifically to this Agreement and shall be deemed given
only if delivered by hand or sent by facsimile transmission (with transmission
confirmed) or by internationally recognized overnight delivery service that
maintains records of delivery, addressed to the Parties at their respective
addresses specified hereafter or to such other address as the Party to whom
notice is to be given may have provided to the other Party in accordance with
this Section 5.2. Such Notice shall be deemed to have been given as of the date
delivered by hand or transmitted by facsimile (with transmission confirmed) or
on the second day (at the place of delivery) after deposit with an
internationally recognized overnight delivery service. Any notice delivered by
facsimile shall be confirmed by a hard copy delivered as soon as practicable
thereafter. Notices shall be made as follows:
If to Licensor, to: If to Licensee, to
Proteo, Inc. Dr. Oliver Wiedow
2102 Business Center Drive, Suite 130 Forstweg 55
Irvine, California 92612, USA 24105 Kiel
Attention: CEO Germany
Facsimile: +49 431 8888463 Facsimile: +49 431 802205
Page 3 of 4
5.3 ENTIRE AGREEMENT. This Agreement sets forth and constitutes the entire
agreement and understanding between the Parties with respect to the subject
matter hereof and - except for the License Agreement (as amended) - all prior
agreements, understandings, promises and representations, whether written or
oral, with respect thereto are superseded hereby. Each Party confirms that it is
not relying on any representations or warranties of the other Party except as
specifically set forth herein. No amendment, modification, release or discharge
shall be binding upon the Parties unless in writing and duly executed by
authorized representatives of both Parties.
Proteo, Inc.
By: /s/ Birge Bargmann
-----------------------------------
Name: Birge Bargmann
Title: CEO
Dr. Oliver Wiedow
By: /s/ Dr. Oliver Wiedow
----------------------------------
Name: Dr. Oliver Wiedow
Page 4 of 4