EXHIBIT
10.2
***Denotes certain parts that
have not been disclosed and have been filed separately with the
Secretary, Securities and Exchange Commission, and is subject to a
confidential treatment request pursuant to Rule 24b-2 of the
Securities Exchange Act of 1934.
ASSET PURCHASE AGREEMENT
This ASSET PURCHASE AGREEMENT (this “
Agreement ”) is entered into as of January 27, 2006
(the “ Effective Date ”), by and between Raptor
Pharmaceutical Inc., a Delaware corporation (“ Raptor
”), and BioMarin Pharmaceutical Inc., a Delaware corporation
(“ BioMarin ”). BioMarin and Raptor are each
referred to herein individually as a “ Party ”
and collectively as the “ Parties .”
RECITALS
WHEREAS, BioMarin is the owner of the Business
(as defined below) as operated prior to the Effective Date and of
the Transferred Technology (as defined below); and
WHEREAS, Raptor desires to acquire from
BioMarin, and BioMarin desires to assign to Raptor, the Transferred
Technology on the terms and conditions set forth in this
Agreement.
AGREEMENT
NOW, THEREFORE, in consideration of the mutual
promises contained herein and intending to be legally bound, the
Parties agree as follows:
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1.
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Definitions .
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1.1
Construction . For all purposes of this Agreement, except as
otherwise expressly provided:
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(a)
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the terms
defined in this Agreement include the plural as well as the
singular,
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(b)
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all references
in this Agreement to designated “Articles,”
“Sections,” and other subdivisions are to the
designated Articles, Sections and other subdivisions of the body of
this Agreement, and all references to “Exhibits” and
“Schedules” are to the Exhibits and Schedules attached
to this Agreement,
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(c)
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pronouns of
either gender or neuter shall include, as appropriate, the other
pronoun forms,
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(d)
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the words
“include” and “including” when used herein
are not exclusive and mean “include, without
limitation” and “including, without limitation,”
respectively, and
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(e)
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the words
“herein,” “hereof” and
“hereunder” and other words of similar import refer to
this Agreement as a whole and not to any particular Article,
Section or other subdivision.
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1.2 Defined Terms . As used in this
Agreement and the Exhibits and Schedules, the following definitions
shall apply:
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(a)
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“
Action ” means with respect to any specified person
any action, complaint, petition, investigation, suit, arbitration
or other proceeding, whether civil or criminal, in law or in
equity, or before any arbitrator or Governmental Entity.
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(b)
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“
Affiliate ” means with respect to any specified
Person, a Person that directly, or indirectly through one or more
intermediaries, controls, or is controlled by, or is under common
control with the Person specified.
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(c)
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“
Alternate Milestone Payment Schedule ” shall mean
payment of one-fourth of the applicable Milestone Fee within 15
days of the milestone event, another one-fourth within 90 days of
the event, another one-fourth within 180 days of the event and the
final one- fourth of the applicable Milestone Fee within 270 days
of the applicable milestone event.
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(d)
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“
Approval ” means any approval, authorization,
assignment or consent, qualification or registration, or any waiver
of any of the foregoing, required to be obtained from, or any
notice, statement or other communication required to be filed with
or delivered to, any Person, the receipt of which is necessary to
approve the Transactions or to the transfer of and continued
operation of the Business by Raptor as it has been operated prior
to the Effective Date.
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(e)
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“
Business ” means (i) the research and development
activities of, or under authority of, BioMarin, Raptor or their
Affiliates, which activities directly and specifically relate to
the use of a receptor associated protein, or any similar or related
protein, as a drug or drug delivery platform, including the
Technology necessary for such research and development activities
and (ii) the further research and development concerning such use
beyond the research and development activities described in clause
(i) and the commercial exploitation of all of the foregoing
research and development; including all further research,
development, making, use, license, import and sale of products that
involve or use such a protein.
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(f)
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“
Business Copyrights ” shall mean the Copyrights listed
on Section 1.2(g) of the Disclosure Schedule.
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(g)
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“
Business Patents ” shall mean the Patents listed on
Section 1.2(h) of the Disclosure Schedule and all patents,
utility models, certificates of invention, patents of addition or
substitution, and other governmental grants for the protection of
inventions anywhere in the world, including any reissue, renewal,
re- examination, or extension thereof, and all applications for any
of the foregoing, including any international, regional, national,
provisional, divisional, continuation, continuation in part,
continued prosecution, and petty patent application, in each case
that correspond or that claim priority to the Patents listed on
Section 1.2(h) of the Business Disclosure
Schedule.
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(h)
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“
Business Trademarks ” shall mean the Trademarks listed
on Section 1.2(i) of the Disclosure Schedule and all
goodwill associated with such Trademarks.
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(i)
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“
Copyrights ” shall mean U.S. and foreign registered
and unregistered copyrights (including those in computer software
and databases), rights of publicity and all registrations and
applications to register the same.
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(j)
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“
Disclosure Schedule ” shall mean the disclosure
schedule of even date herewith prepared and signed by BioMarin and
delivered to Raptor simultaneously with the execution
hereof.
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(k)
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“
Dispute ” has the meanings specified in Section
12.3(a) .
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(l)
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“
EMEA ” means the European Medicines Agency or any
successor agency.
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(m)
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“
Encumbrance ” means any claim, charge, easement,
encumbrance, lease, covenant, security interest, lien, option,
pledge, rights of others (including, but not limited to, licenses,
exclusivity, options and rights of first refusal, of discussion, or
negotiation), or restriction (whether on sale, transfer,
disposition or otherwise), whether imposed by agreement,
understanding, law, equity or otherwise.
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(n)
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“
Escalation Notice ” has the meaning specified in
Section 12.3(a) .
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(o)
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“
FDA ” means the United States Food and Drug
Administration or any successor agency vested with administrative
and regulatory authority to approve testing and marketing of human
pharmaceutical or biological therapeutic or diagnostic products in
the United States.
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(p)
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“
Governmental Entity ” means any government or any
agency, bureau, board, commission, court, department, official,
political subdivision, tribunal or other instrumentality of any
government, whether federal, state or local, domestic or
foreign.
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(q)
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“
Improvement ” means any carrier protein that has at
least seventy five percent (75%) homology with the Receptor
Associated Protein. As used herein, “at least seventy five
percent (75%) homology” means the nucleotide or amino acid
residue sequence is at least seventy five percent (75%) identical
to the amino acid sequence of the Receptor Associated
Protein.
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(r)
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“
Intellectual Property ” shall mean all rights in, to
and under any and all of the following: Trademarks, Patents,
Copyrights, Trade Secrets, Technology and other intellectual
property and proprietary rights anywhere in the world.
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(s)
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“
Investigational New Drug Application ” shall mean an
investigational new drug application, as defined in 21
C.F.R.
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Section 312.3,
obtained for purposes of conducting clinical trials in accordance
with the requirements of the United States Federal Food, Drug and
Cosmetic Act and the regulations promulgated thereunder, including
all supplements and amendments thereto.
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(t)
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“
Law ” means any constitutional provision, statute or
other law, rule, regulation, or interpretation of any Governmental
Entity and any Order.
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(u)
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“
Transferred Know-How ” shall mean all Technology in
the possession or control of BioMarin or its Affiliates necessary
for the Business, which shall include all Technology listed in
Section 1.2(v) of the Disclosure Schedule.
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(v)
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“
Transferred Technology ” shall mean all Intellectual
Property which is owned by BioMarin or its Affiliates and which is
reasonably necessary for the operation of the Business, or the
making, use, sale, offer for sale, or import of any Products, which
shall include: (i) the Business Patents; (ii) the Business
Trademarks; (iii) the Business Copyrights, (iv) the Transferred
Know-How, and (v) all Products.
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(w)
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“
Major Market ” shall mean the United States of
America, Germany, France, Italy, Spain, the United Kingdom, Japan,
Australia, or the European Union (but only for clinical trials
submitted to, and Marketing Approvals from, the EMEA for the
centralized procedure in which the Marketing Approval from the EMEA
is for all countries in the European Union).
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(x)
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“
Marketing Approval ” shall mean, with respect to a
particular NeuroTrans Product and country, approval by the
applicable Regulatory Agencies in such country of a Marketing
Approval Application filed in such country, permitting the
NeuroTrans Product to be marketed and sold in that country for the
indications for which approval is sought, including, if applicable,
approval of pricing or reimbursement.
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(y)
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“
Marketing Approval Application ” shall mean, with
respect to a particular NeuroTrans Product and country, a marketing
authorization application (including and equivalent to an NDA in
the United States), including all supporting documentation and data
submitted for such application to be accepted for review or
approval, filed with the requisite Regulatory Agency of such
country and requesting approval for marketing and/or
commercialization of such NeuroTrans Product for a particular
indication in such country.
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(z)
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“
Milestone Fee ” shall have the meaning set forth in
Section 3 below.
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(aa)
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“
NDA ” shall mean a new drug application to permit
commercial marketing of a NeuroTrans Product in the United States,
pursuant to section 505 of the United States Federal Food, Drug and
Cosmetic Act, and the regulations promulgated thereunder, as
amended from time to time, as submitted to the FDA.
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(bb)
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“ Net
Sales ” shall mean the total payments actually received
by Raptor or its Affiliate (the “ Seller ”) from
a non-Affiliate third party on sales of a NeuroTrans Product by the
Seller to such non- Affiliate third party, less the following: (i)
all trade, cash and quantity credits, discounts, refunds or rebates
given by the Seller;
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(ii)
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amounts for
claims, allowances or credits for returns,
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retroactive
price reductions, charge-backs, recalls or destroyed goods, given
by Seller; (iii) packaging, handling fees and prepaid freight,
sales taxes, duties and other governmental charges (including value
added and other tax) paid to the Seller; and
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(iv)
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quality
assurance and quality control costs relating to the
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NeuroTrans
Product or its preparation paid by the Seller. For purposes of the
foregoing, it is understood that Net Sales shall not include
charges related to services performed in connection with the sale
of such NeuroTrans Products. For the removal of doubt, Net Sales
shall not include transfers among Raptor and its
Affiliates.
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(cc)
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“
NeuroTrans Net Revenue ” shall mean the sum of the Net
Sales and Sublicensing Revenue received by Raptor and its
Affiliates for NeuroTrans Products.
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(dd)
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“
NeuroTrans Product ” means a therapeutic product that
is delivered across a blood brain barrier using a carrier protein
that facilitates transport of such therapeutic product across such
barrier, but only if (a) the manufacture, sale, import, offer to
sell, use, or other activities with respect to such product would,
but for the assignment to Raptor in Section 2.1 below,
infringe in the country for which such product is sold, a Valid
Claim; (b) the manufacture, sale, import, offer to sell, use, or
other activities with respect to such product would, but for the
assignment to Raptor in Section 2.1 below, infringe upon
some or all of the Transferred Know-How, provided that the
carrier protein is the Receptor Associated Protein or an
Improvement; or (c) such product is otherwise based upon the
Transferred Technology and the carrier protein is the Receptor
Associated Protein or an Improvement.
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(ee)
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“
Order ” means any decree, injunction, judgment, order,
ruling, assessment or writ of a Governmental Entity.
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(ff)
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“
Patents ” shall mean all patents, utility models,
certificates of invention, patents of addition or substitution, and
other governmental grants for the protection of inventions anywhere
in the world, including any reissue, renewal, re-examination, or
extension thereof, and all applications for any of the foregoing,
including any international, regional, national, provisional,
divisional, continuation, continuation in part, continued
prosecution, and petty patent applications.
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(gg)
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“
Person ” means an association, a corporation, an
individual, a partnership, a trust (or trustee thereof, as
applicable), or any other entity or organization, including a
Governmental Entity.
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(hh)
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“
Products ” means all products, Technology and services
of BioMarin or its Affiliates, along with collateral materials of
BioMarin and its Affiliates, researched, developed, sold, licensed,
used, or otherwise exploited or commercialized by BioMarin or any
of its Affiliates in the Business, whether commercially available
or in the development stage (including any pre-clinical and
clinical research or development).
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(ii)
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“
Receptor Associated Protein ” means the receptor
associated protein, as disclosed in and having the sequence
disclosed in U.S.
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Patent No.
5,474,766.
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(jj)
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Regulatory Agency ” means (a) the FDA, (b) the EMEA,
or (c) any other Governmental Entity with regulatory authority
comparable to the FDA or the EMEA in any other jurisdiction
anywhere in the world.
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(kk)
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“
Licensing Revenue ” means the net license issuance
fees; license maintenance fees; and milestone payments paid upon
completion of a regulatory milestone, commercial launch, or similar
milestone; royalties; and all other similar revenue; in each case
actually received by Raptor and its Affiliates from a Licensee as
consideration for the grant to such Licensee of a license under a
Valid Claim, or otherwise under the Transferred Technology, to make
and sell NeuroTrans Products, excluding (i) all amounts paid to
Raptor and its Affiliates for purchases of any products, services,
equity, other securities, or other items; (ii) any cost sharing or
reimbursements; (iii) amounts paid for facilities or equipment;
(iv) loans; dividends; profit distributions and amounts that are
creditable by the Licensee against other payments; (v) payments for
rights or licenses under Technology or Intellectual Property, other
than the Transferred Technology, (such as payments for any other
Intellectual Property or Technology owned by Raptor or its
Affiliates) and payments based upon products other than NeuroTrans
Products; (vi) all amounts paid in connection with a sale of all or
substantially all of the business or assets of Raptor or its
Affiliates related to this Agreement; and (vii) non-cash
consideration. Notwithstanding the foregoing, Licensing Revenue (A)
shall be reduced by the amount of any cash payments to third
parties in respect of the amounts received by Raptor and its
Affiliates (including, without limitation, royalties on the same
products paid to third parties under technology in-licenses); and
(B) shall be net of any applicable taxes and other amounts credited
or deducted against the amounts actually paid to Raptor and its
Affiliates.
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(ll)
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“
Licensee ” means an entity to which Raptor has granted
a license under a Valid Claim to make and sell NeuroTrans
Products.
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(mm)
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Security Agreement ” means that certain
“Security Agreement” entered into by and between the
Parties on even date herewith, to secure the payments to BioMarin
that become due and payable under this Agreement.
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(nn)
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Successful Completion ” shall mean, with respect to a
phase II or phase III clinical study, (i) completion of the final
clinical trial report for the clinical study provided that
the data from the clinical study demonstrates that the primary
endpoints in the study protocol have been met; or (ii) the
initiation of the next phase of
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development
(i.e. the initiation of a phase III trial for the same therapeutic
for which the phase II study has been conducted, and in the case of
completion of a phase II trial or phase III trial, the filing of a
Marketing Approval Application to obtain Marketing Approval for the
same product.
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(oo)
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“
Tax ” means any United States federal, state, local,
or foreign taxes, and assessments of a similar nature (whether
imposed directly or through withholding), including any interest,
penalty, or addition thereto.
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(pp)
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“
Technology ” means any and all technology, and
technical and other information, and tangible embodiments thereof,
including Trade Secrets, know-how, research, processes,
formulations, techniques, diagnostics, models, concepts, ideas,
knowledge, developments, samples, methods, invention and other
disclosures, recipes, specifications, materials, instructions,
compositions, designs, results, assays, reagents, systems,
descriptions, analyses, opinions, works of authorship, plans,
procedures, manuals, depictions, inventions, discoveries, methods,
data, reports, market information, projections, and any other
written, printed or electronically stored information and materials
of any nature whatsoever.
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(qq)
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Term ” shall have the meaning set forth in Section
11.1 .
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(rr)
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“
Territory ” shall mean all countries, territories, and
other regions of the world.
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(ss)
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“
Trademarks ” shall mean U.S. and foreign registered
and unregistered trademarks, trade dress, service marks, logos,
trade names, corporate names and all registrations and applications
to register the same and all goodwill associated with any of the
foregoing.
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(tt)
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“
Trade Secrets ” shall mean all categories of trade
secrets as defined in the Uniform Trade Secrets Act, including
trade secrets that are business information, inventions, know-how,
or confidential information.
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(uu)
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Transactions ” shall mean the transactions and
activities provided for or contemplated by this
Agreement.
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(vv)
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“
Valid Claim ” means (i) an issued, unexpired, and
enforceable claim in the Business Patents, or any other Patent
assigned to Raptor in the Transferred Technology, that has an
effective filing date (as defined in 35 USC §119 or §120,
or equivalent in a country outside the United States) that precedes
the Effective Date
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or (ii) an
issued, unexpired, and enforceable claim in another Patent owned by
Raptor that claims, and is primarily directed to, an Improvement
(and not any protein more generally); in each case provided
that the claim has not been held invalid or unenforceable, and has
not been abandoned, disclaimed, waived, or terminated.
2.1
Assignment . Subject to the terms and conditions of this
Agreement,BioMarin hereby assigns, transfers, conveys, and delivers
to Raptor, and Raptor hereby accepts and acquires from BioMarin,
all right, title and interest in, to and under the Transferred
Technology.
2.2 Licensees . Raptor shall promptly
advise BioMarin of any license of the Transferred Technology to any
Licensee. Raptor’s grant of any license shall not relieve
Raptor of its obligations under this Agreement.
2.3 Exclusivity . Without limiting the
assignment in Section 2.1 , BioMarin and its Affiliates
shall not, directly or indirectly (and shall not authorize any
other party to), market, develop, make, have made, use, sell, offer
to sell, or distribute any product, component or service that is
Transferred Technology or is covered by the Transferred Technology,
including any product, component or service in a non-Patent country
that would infringe a Patent in the Transferred Technology if made,
used, sold, or imported in a country in which a Patent in the
Transferred Technology exists, or otherwise use, disclose or
exploit the Transferred Technology, anywhere in the
world.
2.4 Liabilities Assumed and Not Assumed
. Raptor does not assume, shall not take subject to and shall not
be liable for, any liabilities or obligations of any kind or
nature, whether absolute, contingent, accrued, known or unknown, of
BioMarin or any Affiliate of BioMarin regardless of when incurred.
Raptor does not assume any liability for failure of BioMarin to
obtain a required consent or approval for the Transactions.
BioMarin shall remain liable for all payments to all suppliers to
the Business, and for all accounts payable relating to the
Business, as of the Effective Date.
2.5 No Implied Rights or Obligations .
Neither Party shall have any implied rights or implied obligations
in connection with this Agreement. Rather, each Party’s
rights and obligations shall be solely as expressly set forth in
this Agreement.
3. Milestone
Payments . As partial consideration for the assignment to
Raptor in
Section 2.1
, Raptor shall pay to BioMarin the
following amounts (the “ Milestone Fees ”) for
the achievement of each applicable event:
3.1 Within thirty (30) days after Raptor
receives total aggregate debt or equity financing of at least two
million five hundred thousand dollars ($2,500,000), Raptor shall
pay BioMarin fifty thousand dollars ($50,000);
3.2 Within thirty (30) days after
Raptor receives total aggregate debt or equity financing of at
least five million dollars ($5,000,000), Raptor shall pay BioMarin
one hundred thousand dollars ($100,000);
3.3 Upon the filing and acceptance by any
Regulatory Agency of an Investigational New Drug Application for a
NeuroTrans Product of Raptor, its Affiliate or a Sublicensee,
Raptor shall pay BioMarin five hundred thousand dollars ($500,000)
in accordance with the Alternate Milestone Payment
Schedule;
3.4 Upon Successful Completion by Raptor or its
Sublicensee of a (i) phase II human clinical trial for a NeuroTrans
Product for the purposes of collecting data on dosages, evaluating
safety and/or collecting preliminary information regarding efficacy
as such trial is more fully defined in 21 C.F.R. § 312.21(b),
Raptor shall pay BioMarin two million five hundred thousand dollars
($2,500,000) in accordance with the Alternate Milestone Payment
Schedule;
3.5 Upon Successful Completion by Raptor or its
Sublicensee of (i) a phase III human clinical trial for a
NeuroTrans Product which clinical trial, when considered either
alone or together with one or more clinical trials of comparable
design and end-points that have been completed, has generated
efficacy data sufficient to obtain Marketing Approval by the FDA or
an equivalent agency in a Major Market for the therapeutic, as such
clinical trial is more fully defined in 21 C.F.R. § 312.21(c),
Raptor shall pay BioMarin five million dollars ($5,000,000) in
accordance with the Alternate Milestone Payment
Schedule;
3.6 Within ninety (90) days after Raptor or its
Affiliate or Sublicensee obtains Marketing Approval from a
Regulatory Agency of a Marketing Approval Application in a Major
Market for a NeuroTrans Product, Raptor shall pay BioMarin twelve
million dollars ($12,000,000);
3.7 Within ninety (90) days after Raptor or its
Affiliate or Sublicensee obtains Marketing Approval from a
Regulatory Agency of a Marketing Approval Application in a Major
Market for any NeuroTrans Product(other than the NeuroTrans Product
for which a payment is made under Section 3.6 ), it being
understood that filings in different countries for the same
NeuroTrans Product shall not trigger the milestone under this
Section 3.7 , Raptor shall pay BioMarin five million dollars
($5,000,000);
3.8 Within sixty (60) days after the end of the
first calendar year in which Raptor’s aggregate NeuroTrans
Net Revenue actually received by Raptor and its Affiliates in such
calendar year for all NeuroTrans Products exceeds one hundred
million dollars ($100,000,000), Raptor shall pay BioMarin five
million dollars ($5,000,000); and
3.9 Within sixty (60) days after the end of the
first calendar year in which Raptor’s aggregate NeuroTrans
Net Revenue actually received by Raptor and its Affiliates in such
calendar year for all NeuroTrans Products exceeds five hundred
million dollars ($500,000,000), Raptor shall pay BioMarin twenty
million dollars ($20,000,000).
For the avoidance of doubt, with
the exception of the milestone provided for in Section 3.7 ,
which may be earned multiple times, none of the above Milestone
Fees may be earned more than once. In particular, if a Milestone
Fee is paid under any of Sections 3.1 , 3.2 ,
3.3 , 3.4 , 3.5 , 3.6 ,
3.8 , or 3.9 for any NeuroTrans Product, no
further fee shall be payable at any time under the applicable
section, regardless of the product, indication, or country.
Additionally, only one fee shall be payable under Section
3.7 for each NeuroTrans Product, regardless of the number of
countries in which approval is obtained.
Raptor shall provide full disclosure to
BioMarin of each of the events described in this Section 3
prior to, concurrently with, or immediately after the occurrence of
each event, whichever is possible to do using Raptor’s
reasonable commercial efforts.
4.1
Subject to the terms and conditions of this Agreement, as
additional consideration for the assignment to Raptor in Section
2.1 , during the Term (defined below) of this Agreement Raptor
agrees to pay to BioMarin a royalty at the percentages of
NeuroTrans Net Revenue actually received by Raptor and its
Affiliates as set forth in this Section 4.1 :
(a) *** percent (***%) of
NeuroTrans Net Revenue received by Raptor or its Affiliates for
NeuroTrans Product, if the sale or use of the NeuroTrans Product
would, but for the assignment to Raptor in Section 2.1 ,
infringe one or more Valid Claims in the country for which the
NeuroTrans Product is sold; and
(b) *** percent (***%) of
NeuroTrans Net Revenue received by Raptor or its Affiliates for
other NeuroTrans Products.
For clarity, if Licensing
Revenue is based upon activities (e.g. a license, clinical trials,
regulatory filings or approvals, or the like) for a NeuroTrans
Product for a particular country, the rate in Section 4.1(a)
shall apply only if the sale or use of such NeuroTrans Product
would, absent the assignment to Raptor in Section 2.1 ,
infringe a Valid Claim in that country.
4.2 Notwithstanding the foregoing, no payments
shall be due or payable under Section 4.1 unless the
NeuroTrans Net Revenue is received after the earlier of: (i) the
third anniversary of the Effective Date; or (ii) Raptor and its
Affiliates having received after the Effective Date a total
aggregate amount of five million US dollars ($5,000,000) of
NeuroTrans Net Revenue. For clarity, if (ii) is the earlier to
occur, no amounts shall be due or payable under Section 4.1
based upon the initial five million US dollars ($5,000,000) of
NeuroTrans Net Revenue that were received by Raptor and its
Affiliates. No more than one royalty shall be due or payable to
BioMarin for any NeuroTrans Product pursuant to Section 4.1
. Section 4.1 shall terminate, and have no further force or
effect, on the twentieth (20th) anniversary of the Effective
Date.
4.3 So long as BioMarin, or any successor or
assign under this Agreement, is domiciled in the United States or
any other country that has entered into a tax treaty with the
United States such that Raptor is not required to withhold or pay
Taxes on the amounts payable by Raptor under this Agreement, such
payments will be made without deduction or offset for Taxes or Tax
withholding. If BioMarin, or its successor or assign under this
Agreement, is domiciled in any other country, Raptor, in its
reasonable discretion, if required by such country, shall be
entitled to make any deduction or withholding payment for or on
account of Taxes or
other
governmental charges imposed by a jurisdiction in connection with
the payments under this Agreement and shall be entitled to reduce
its payment under this Agreement by the amount of such
Taxes.
4.4 Within ninety (90) days after the end of
each calendar quarter during the Term, Raptor shall provide written
reports to BioMarin describing in reasonable detail any NeuroTrans
Net Revenues received by Raptor and its Affiliates during the
preceding calendar quarter. Raptor shall not be required to provide
a report if there are no NeuroTrans Net Revenues to report. The
amounts payable by Raptor under Section 4.1 shall be paid
concurrent with such reports. All amounts set forth in this
Agreement, or in any Exhibit, are in U.S. Dollars. If any currency
conversion shall be required in connection with the calculation of
royalties hereunder, such conversion shall be made using the
average of the buying and selling exchange rate for the foreign
currency, in U.S. Dollars, quoted for current transactions reported
the Chase Manhattan Bank for the last business day of the calendar
quarter to which such payment pertains.
4.5 For clarity, no payments shall be due to
BioMarin under this Agreement for the sale of any inventory of
NeuroTrans Products as part of the sale of all or substantially all
of Raptor’s and/or its Affiliates business or assets related
to this Agreement, whether by way of merger, acquisition of assets,
operation of the law, or otherwise, provided that this
Section 4.5 shall not relieve any such asset purchaser,
successor or assign under this Agreement, in any such transaction,
from otherwise being obligated to make payments to BioMarin as a
result of its subsequent sale or distribution of such NeuroTrans
Products pursuant to this Agreement.
5. Representations And Warranties Of
BioMarin . Except as specifically set forth in the
Disclosure Schedule prepared by BioMarin and delivered to Raptor
simultaneously with the execution hereof, BioMarin represents and
warrants to Raptor as of the Effective Date as follows:
5.1 Organization and Related Matters .
BioMarin is a corporation duly organized, validly existing and in
good standing under the laws of the State of Delaware. BioMarin has
all necessary corporate power and authority to own its properties
and assets and to carry on the Business and the other businesses of
BioMarin as now conducted.
5.2 Authorization; Binding Agreement .
BioMarin has full corporate power and authority to execute and
deliver this Agreement and to consummate the Transactions. The
execution, delivery and performance by BioMarin of this Agreement
and the consummation by it of the Transactions have been duly
authorized by BioMarin’s Board of Directors, and no other
corporate action on the part of BioMarin is necessary to authorize
the execution and delivery by BioMarin of this Agreement or the
consummation by it of the Transactions. This Agreement has been
duly executed and delivered by BioMarin and, assuming due and valid
authorization, execution and delivery thereof by Raptor, this
Agreement is the valid and binding obligation of BioMarin
enforceable against BioMarin in accordance with its terms, except
(i) as limited by applicable bankruptcy, insolvency,
reorganization, moratorium, fraudulent conveyance and other similar
laws of general application affecting enforcement of
creditors’ rights generally and (ii) the availability of the
remedy of specific performance or injunctive or other forms of
equitable relief may be subject to equitable defenses and would be
subject to the discretion of the court before which any proceeding
therefor may be brought.
5.3 Conflicts . The
execution, delivery and performance of this Agreement by BioMarin
and the consummation by it of the Transactions will not conflict
with or result in a breach or violation of any term or provision
of, or (with or without notice or passage of time, or both)
constitute a breach or default under, the charter or bylaws of
BioMarin or agreement to which BioMarin or its Affiliate is a
party, or to BioMarin’s knowledge, violate any Law or Order
of any Governmental Entity or any arbitrator, having jurisdiction
over BioMarin or the Business or result in any Encumbrance on any
Transferred Technology. The e
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