五星体育直播

[***] Certain information in this document has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions.

Exhibit 10.26B

AMENDMENT NO. 1 TO THE LICENSE AGREEMENT

THIS AMENDMENT NO. 1 TO THE LICENSE AGREEMENT, together with the exhibits attached hereto (the “Amendment”), is entered into and effective as of December 28, 2009 (the “Amendment Effective Date”), by and among Exela PharmSci, Inc., a Virginia corporation, having a place of business at 11710 Plaza America Drive, Suite 2000, Reston, Virginia 20190 (“Exela” or “Licensor”) and 五星体育直播, a Delaware corporation, having a place of business at 200 Penobscot Drive, Redwood City, California 94063 (“五星体育直播” or “Licensee”) (each a “Party,” and collectively, the “Parties”). Except as expressly provided herein, capitalized terms used in this Amendment shall have the meaning set forth in the Agreement (defined below).

BACKGROUND

WHEREAS, Exela granted 五星体育直播 certain exclusive rights and licenses to Licensed Technology pursuant to that certain License Agreement dated September 18, 2007 (the “Agreement”).

WHEREAS, Exela desires to obtain from 五星体育直播, and 五星体育直播 is willing to grant to Exela, certain exclusive rights and licenses under 五星体育直播 Licensed Technology (as defined below).

WHEREAS, in connection with such license grant, the Parties desire to amend certain sections of the Agreement to reflect such license grant and the development and commercialization, by Exela, of a product covered by such 五星体育直播 Licensed Technology.

AGREEMENT

NOW THEREFORE, the Parties agree as follows:

I. For the purposes of Article 6 (Payments, Reports and Records) and Sections 2.6 (First Commercial Sale), 2.7 (Fully Burdened Manufacturing Cost) (including, for clarity, Exhibit A), 2.15 (Milestone Payments), 2.16 (Net Sales), 2.17 (Profit), 2.20 (Sublicense Revenue), 8.7 (Defense of Infringement Claim), and 11.3 (Covenants of Licensor), (i) references to “LICENSEE” shall be replaced with “Exela” and Exela hereby assumes all such rights and obligations under the foregoing sections, (ii) references to “LICENSOR” shall be replaced with “五星体育直播” and 五星体育直播 hereby assumes all such rights and obligations under the foregoing sections, and (iii) references to “Licensed Technology” shall be replaced with “五星体育直播 Licensed Technology”.

II. Article 2 (Definitions) of the Agreement is hereby amended as follows:

A. The definition of “Licensed Product” as set forth in Section 2.13 is hereby deleted in its entirety and replace with the following:

2.13 “Licensed Product” means any product that, the manufacture, use or sale of which (a) is covered by the Licensed Patent Rights; or (b) involves the use of Licensed Know-How or 五星体育直播 Licensed Know-How.

B. The following definitions are added:

2.23 “五星体育直播 Licensed Know-How” means technology, information, expertise, know-how and/or trade secrets owned or controlled by 五星体育直播 relating to the manufacture and/or use of Licensed Product including without limitation any Improvement owned or otherwise controlled by 五星体育直播 during the term of this Agreement.

2.24 “五星体育直播 Licensed Technology” means all Licensed Technology and 五星体育直播 Licensed Know-How.

III. Article 3 (Grant) of the Agreement is hereby amended as follows:

A. Section 3.2 (Reservation of Rights) is hereby deleted in its entirety and replaced with the following:

3.2 Reservation of Rights. Notwithstanding anything to the contrary, 五星体育直播 retains the right to use the 五星体育直播 Licensed Technology for internal research purposes and for the benefit of Exela, including the purpose set forth in Section 5.2.2. For purposes of clarification, (i) any Improvement discovered by 五星体育直播 as a result of such research shall be included in the 五星体育直播 Licensed Technology and subject to the license grant set forth below in Section 3.4, and (ii) any Improvement discovered by Exela as a result of the use of the Licensed Technology by Exela for internal research purposes for the benefit of 五星体育直播, shall be included in the Licensed Technology and subject to the license grant set forth in Section 3.1.

B. The following Section 3.4 is added as follows:

3.4 License Grant Back. Effective on the Amendment Effective Date and subject to Sections 3.2 and 5.2.2, 五星体育直播 hereby grants to Exela an exclusive right and license, including the right to grant sublicense rights, under 五星体育直播 Licensed Technology to make, have made, use, offer to sell, sell, and import Licensed Products in the Territory.

IV. Article 5 (Development) is hereby deleted in its entirety and replaced with the following:

5.1 Efforts of Exela. Exela shall use commercially reasonable efforts to (a) develop and commercialize Licensed Products in the United States, at Exela’s cost and expense, including without limitation causing an ANDA to be filed on Exela’s behalf with respect to a Licensed Product, or (b) sublicense the 五星体育直播 Licensed Technology to a Third Party, such Third Party to be reasonably acceptable to 五星体育直播, to develop and commercialize Licensed Products in the United States. The Parties agree that time is of the essence. Exela covenants that such Licensed Products shall be manufactured in accordance with the formulation set forth in Exhibit C, unless Exela obtains 五星体育直播’ prior written consent. In the event that Exela determines, in Exela’s sole discretion, to grant a sublicense under the 五星体育直播 Licensed Technology, (i) Exela shall provide 五星体育直播 an opportunity to review and comment upon the terms and conditions of such sublicenses, and (ii) such sublicenses shall require the sublicensee to file an ANDA with respect to a Licensed Product. For purposes of clarification, as between the Parties, Exela shall own all Regulatory Filings.

5.2 Responsibilities of 五星体育直播.

5.2.1 五星体育直播 shall provide to Exela or its designee copies of any and all documentation, information and materials, including without limitation, tangible embodiments of 五星体育直播 Licensed Technology, that are within 五星体育直播’ possession and which 五星体育直播 has the right to provide to Exela that are necessary or useful for the manufacture of Licensed Products.

5.2.2 五星体育直播 will use commercially reasonable efforts to conduct an in vitro study for inclusion in Exela’s 505(b)(2) application; provided that in the event the Licensed Product available to 五星体育直播 as of the Amendment Effective Date is not reasonably acceptable for use in such in vitro study, either prior to or after the completion of such in vitro study, the Parties will discuss in good faith the best method of obtaining sufficient Licensed Product to enable completion of such in vitro study.

5.3 Assignment of Certain Third Party Agreements by 五星体育直播.

5.3.1 五星体育直播 hereby assigns to Exela all of 五星体育直播’ rights, title and interest in and to, and obligations under, certain third-party agreements set forth in Exhibit D (as attached to this Amendment), and Exela hereby assumes all rights, title and interest in and to, and obligations under, such third-party agreements.

5.3.2 五星体育直播 shall use commercially reasonable efforts to obtain the requisite consents to transfer the third-party agreements set forth in Exhibit E (as attached to this Amendment) and upon receipt of such consents, 五星体育直播 shall assign to Exela, and Exela shall assume, all rights, title and interest in and to, and obligations under, such third-party agreements.

5.4 Responsibilities of Exela. In the event that the practice of the license granted by Exela to 五星体育直播 under Section 3.1 or granted by 五星体育直播 to Exela under Section 3.4 is found by a court of competent jurisdiction to infringe any intellectual property rights of any Third Party, Exela shall use its best efforts, at Exela’s sole cost and expense, to develop a non-infringing formulation for Compound and will license such formulation to 五星体育直播 under terms contained herein.

V. Article 6 (Payments, Reports and Records) is hereby amended as follows:

A. Sections 6.1.1 (Milestone Payments) and 6.1.2 (Profit Share) are hereby deleted in their entirety and replaced with the following:

6.1.1 Milestone Payments. Exela shall pay to 五星体育直播 an amount equal to (a) [***] percent ([***]%) of the first [***] Dollars ($[***]) in Milestone Payments received and fully earned by Exela, and (b) [***] percent ([***]%) of Milestone Payments received and fully earned by Exela in excess of [***] Dollars ($[***]).

6.1.2 Profit Share. Exela shall pay to 五星体育直播 an amount equal to [***] percent ([***]%) of Profits of Licensed Products in the Territory that are received and fully earned by Exela.

B. Section 6.2 is hereby deleted in its entirety.

VI. Article 8 (Intellectual Property) is hereby amended as follows:

A. Section 8.1 (Ownership) is hereby deleted in its entirety and replaced with the following:

8.1 Ownership. 五星体育直播 acknowledges that Exela owns or otherwise controls all right, title, and interest in, to, and under the Licensed Technology. Exela acknowledges that 五星体育直播 owns or otherwise controls all right, title and interest in, to and under the 五星体育直播 Know-How. Ownership of patents and patent applications covering Improvements shall be determined in accordance with the rules of inventorship under U.S. patent law.

B. The following sentence in Section 8.2:

“LICENSOR and LICENSEE shall share equally all prosecution and maintenance expenses; provided, however, that in the event that LICENSEE funds the development of the Exhibit Batches for any Licensed Product, LICENSEE shall pay [***] percent ([***]%) of such costs incurred after the date of ANDA filing for such Licensed Product and LICENSOR shall pay [***] percent ([***]%) of such costs”

is hereby deleted in its entirety and replaced by the following:

“五星体育直播 shall pay [***] percent ([***]%) of all prosecution, filing and maintenance costs and Exela shall pay [***] percent ([***]%) of such costs.”

VII. Article 9 (Term and Termination) is hereby amended as follows:

A. Sections 9.2 (Termination Upon Material Breach), 9.3 (Termination by Licensee) and 9.5 (Consequences of Expiration or Termination) are hereby deleted in their entirety and replaced with the following:

9.2 Termination Upon Material Breach.

9.2.1 Upon any breach of, or default by Exela under Sections 5.1, 5.4 or 6.1 of this Agreement (each, a “Material Breach”), 五星体育直播 may, in addition to any other rights and remedies it may have at law or in equity, terminate the rights and licenses granted hereunder to Exela by [***] ([***]) days written notice to Exela. Said notice shall become effective at the end of such period unless during said period Exela cures such Material Breach (if curable).

9.2.2 Upon any other breach or default by Exela not covered under Section 9.2.1 (each, a “Non-Material Breach”), 五星体育直播 shall notify Exela and Exela shall use commercially reasonable efforts to promptly remedy such Non-Material Breach. For the sake of clarity, 五星体育直播 may not terminate the rights and licenses granted hereunder to Exela but reserves any other rights and remedies it may have at law or in equity, provided that Exela demonstrates to 五星体育直播 that it has undertaken precautions to prevent any further such Non-Material Breaches.

9.3 Termination by Exela. Exela shall have the right to terminate the rights and licenses granted to each Party pursuant to this Amendment at any time upon [***] ([***]) days written notice to 五星体育直播 in the event that (a) the commercialization of any Licensed Product by Exela creates a conflict with any of Exela’s partners, or (b) Exela makes a good faith determination that any Licensed Product is not suitable for commercial use, where "not suitable for commercial use" means, for example, that such Licensed Product is not safe, not effective, unstable, impure, fails to scale up, fails analytical validation or fails to have suitable shelf life; provided that such unsuitability is not caused by the API supplied by Exela.

9.5 Consequences of Expiration or Termination. Upon expiration of this Agreement in accordance with Section 9.1, but not early termination, the rights and licenses granted by 五星体育直播 to Exela pursuant to Article 3 shall become fully paid-up, royalty-free and irrevocable. In the event of termination of this Agreement, each Party shall promptly return, or at the other Party’s request destroy, any Confidential Information of the other Party in such Party’s possession or control at the time of termination. In the case of termination (a) by 五星体育直播 pursuant to Section 9.2, or (b) by Exela pursuant to Section 9.3, the rights and licenses granted hereunder to Exela shall terminate, and for the avoidance of doubt, the rights and licenses granted under the Agreement to 五星体育直播 shall remain in full force and effect. In the case of termination by 五星体育直播 pursuant to Section 9.2, Exela shall supply 五星体育直播 with API for any Licensed Product at a transfer price equal to the [***] for such API plus [***] percent ([***]%); provided that a court of competent jurisdiction has not held that the Licensed Technology infringes the intellectual property rights of any Third Party; provided further that such supply does not conflict with any contractual obligations of Exela. In the event of any termination of this Agreement, (i) any sublicense granted by Exela prior to the effective date of such termination shall survive such termination, and (ii) all sublicense royalties or other sublicense-related consideration that the sublicense would have owed to Exela under such sublicense shall be paid by such sublicensee to 五星体育直播.

B. Section 9.4 (Termination by Licensor) is hereby deleted in its entirety.

VIII. Except to the extent amended by this Amendment, all of the definitions, terms, provision and conditions of the Agreement shall remain in full force and effect. The Agreement and this Amendment shall be read and construed together as a single agreement.

IX. This Amendment may be executed in counterparts, each of which shall be deemed an original and all of which together shall constitute one instrument.

IN WITNESS WHEREOF, the Parties have cause this Amendment to be executed by their respective duly authorized officers as of the Amendment Effective Date, each copy of which will for all purposes be deemed to an original.

EXELA PHARMSCI, INC.

By: [***]

Name: [***]

Title: [***]

CODEXIS, INC.

By: [***]

Name: [***]

Title: [***]

Exhibit C

Formulation Specification

Composition comparison

[***]

Exhibit D

Services Agreement between [***] and 五星体育直播, dated August 1, 2006.

Commercial Supply Agreement between [***] and 五星体育直播, dated March 19, 2007.

Exhibit E

Master Services Agreement between [***] and 五星体育直播, dated October 8, 2007.

Quality Agreement between [***] and 五星体育直播, dated August 5, 2009.

Master Services Agreement between [***] and 五星体育直播, dated October 16, 2007.