Exhibit 10.45
FIRST AMENDMENT
TO
REVENUE INTERESTS ASSIGNMENT AGREEMENT
AND TO
GUARANTY
This FIRST AMENDMENT TO REVENUE
INTERESTS ASSIGNMENT AGREEMENT AND TO GUARANTY (this “
Amendment ”) is dated as of November 28, 2006, and is
entered into by and among King George Holdings Luxembourg IIA
S.à r.l., a Luxembourg private limited company (together with
its permitted successors and assigns, “ King George
”), Acorda Therapeutics, Inc., a Delaware corporation
(“ Acorda ”), and Paul Royalty Fund II, L.P.
(“ Guarantor ”).
RECITALS
A.
King George and Acorda are parties to the Revenue Interests
Assignment Agreement, dated as of December 23, 2005 (as amended,
modified or supplemented from time to time, the “ Revenue
Agreement ”).
B.
In connection with the Revenue Agreement, Guarantor executed that
certain Guaranty, dated as of December 23, 2005, in favor of Acorda
(as amended, modified or supplemented from time to time, the
“ Guaranty ”).
B.
The parties hereto desire to amend the Revenue Agreement and the
Guaranty, subject to the terms and conditions of this
Amendment.
NOW, THEREFORE
, in consideration of the agreements
and provisions herein contained and for other valuable
consideration, the receipt and adequacy of which are hereby
acknowledged, the parties hereto do hereby agree as
follows:
Section 1.
Definitions . Any capitalized term used but not
otherwise defined herein shall have the meaning ascribed to such
term in the Revenue Agreement.
Section 2. Amendments to
the Revenue Agreement and to the Guaranty
. Each of the Revenue
Agreement and the Guaranty is hereby amended, effective as of the
date this Amendment becomes effective in accordance with Section 5
hereof, as follows:
2.1 Amendment to Section
1.01 . The
following definition appearing in Section 1.01 of the
Revenue Agreement is hereby amended by deleting such definition in
its entirety and inserting the following new definition in
replacement thereof:
“ Applicable Percentage
” shall mean, as of any date of determination, on a Fiscal
Year-by-Fiscal Year basis (or applicable portion thereof in the
first and last Fiscal Years under this Agreement), during the
period from October 1, 2005 through and including December 31,
2015:
(a)
prior to the date that the payments received and retained (
i.e. , not refunded by PRF) by PRF under Sections
2.02(b) and 5.08 are less than the product of (x) 2.1
times (y) the aggregate amount paid by PRF under Section
2.03 , the following:
(i)
with respect to Net Revenues of up to and including $30,000,000,
fifteen percent (15%),
(ii)
with respect to Net Revenues in excess of $30,000,000 but less than
and including $60,000,000, six percent (6%), and
(iii)
with respect to Net Revenues in excess of $60,000,000, one percent
(1%), and
(b)
from and
after the date that the payments received and retained (
i.e. , not refunded by PRF) by PRF under Sections
2.02(b) and 5.08 are at least as great as the product of
(x) 2.1 times (y) the aggregate amount paid by PRF under
Section 2.03 , one percent (1%).
2.2 Amendment to Section
2.03(a) .
Sections 2.03(a)(ii) and 2.03(a)(iii) of the Revenue
Agreement are hereby amended by deleting such Sections
2.03(a)(ii) and 2.03(a)(iii) in their entirety and
inserting the following in lieu thereof:
“(ii)
an additional $5,000,000 (the “ Initial Contingent
Payment ”) payable within three (3) Business Days of the
Effective Date (as defined in the First Amendment to Revenue
Interests Assignment Agreement and to Guaranty);
(iii)
an additional $5,000,000 (the “ Secondary Contingent
Payment ”) within eleven (11) Business Days of the
earlier of (A) notification from Acorda that it has closed its
accounting books (on an unaudited basis) for the period from
January 1, 2006 through and including December 31, 2006 and (B) the
public reporting by Acorda of its audited financial results for the
period from January 1, 2006 through and including December 31,
2006, payable if and only if Net Revenues during such period equal
or exceed $25,000,000; and”
2.3 Amendment to Article
IV . Article
IV of the Revenue Agreement is hereby amended by deleting each
reference therein to “PRF” (other than the initial
reference thereto) and substituting therefor a like reference to
“King George Holdings Luxembourg IIA S.à
r.l.”
2
2.4 Amendment to Section
4.06 .
Section 4.06 of the Revenue Agreement is hereby amended by
deleting the text thereof and inserting in lieu thereof the
following:
“King George Holdings
Luxembourg IIA S.à r.l. and Guarantor will at all times
collectively have access to sufficient funds to satisfy their
obligations under Section 2.03 and Section 8.05 as
they become due.”
2.5 Amendment to Section
5.02(a) . Section
5.02(a) of the Revenue Agreement is hereby amended by changing
the phrase “proceeding, , offer” to “proceeding,
offer”.
2.6 Amendment to Section
5.08(c) .
Section 5.08(c) of the Revenue Agreement is hereby amended
by changing the word “received” to
“receivable”.
2.7 Amendment to Section
5.15 .
Section 5.15 of the Revenue Agreement is hereby amended by
adding the following new text at the end thereof:
“Notwithstanding any provision
contained in this Section 5.15 or otherwise within this
Agreement, the proceeds of the Initial Contingent Payment and of
the Secondary Contingent Payment shall be exclusively and promptly
used by Acorda to fund expansion and maintenance of the Acorda
sales force in support of the business plan and commercialization
of the Product, including sales operation and expansion and royalty
and/or other payments related to the acquisition and supply of the
Product. All of such proceeds shall be used exclusively to
support sales and marketing related specifically and solely to the
Product. Acorda shall not use the Initial Contingent Payment
or the Secondary Contingent Payment for any other current or future
product of Acorda except if such use is ancillary and relates to
the use of proceeds to support, or would in Acorda’s
reasonable business judgment, support the commercialization of the
Product. Acorda shall not use the Initial Contingent Payment
or the Secondary Contingent Payment for the hiring of a Contract
Sales Organization (as defined below). “Contract Sales
Organization” shall mean any third party sales organization
retained by Acorda to provide sales representatives to conduct an
in person physician detailing program to promote the Product, other
than (i) any such organization or organizations engaged by Acorda
on or prior to November 28, 2006 ( provided , that such
engagement is in effect as of November 28, 2006) or (ii) any
pharmaceutical or biopharmaceutical company with which Acorda
enters into a co-promotion, co-marketing or similar agreement
relating to the Product.”
2.8 Amendment to Section
8.06(a) . Section 8.06(a) of the Revenue
Agreement is hereby amended by adding the words “the
relationship between” after the phrase “deemed to
constitute” appearing therein.
2.9
Amendment to Guaranty . The Guaranty is hereby
amended, and such amendment is hereby consented to by Acorda, by
deleting the last sentence thereof and inserting in lieu thereof
the following:
“This PRF Guaranty shall
survive until the earlier to occur of (i) PRF’s payment of
the Secondary Contingent Payment to Acorda or its designee in
accordance with Section 2.03(a)(iii) of the Revenue
Interests Agree
