Exhibit 10.1
OPTION AGREEMENT
THIS
OPTION AGREEMENT (this “ Option Agreement ”)
dated as of April 30, 2008 (“Effective Date”) is
between Alseres Pharmaceuticals, Inc. (f/k/a Boston Life Sciences,
Inc.), a Delaware corporation with offices at 85 Main Street,
Hopkinton, MA 01748 (“Alseres”) and BioAxone
Therapeutic Inc., a Canadian corporation with offices at 1100,
boul. René-Lévesque, 25 e étage
Montréal, Québec H3B 5C9 Canada (“ BA
”).
Background
WHEREAS Alseres and BA entered into
that certain License Agreement dated as of December 28, 2006
(“License Agreement”) whereby BA exclusively licensed
to Alseres patent rights and know-how relating to fusion
proteins.
WHEREAS Alseres desires an option to
amend the License Agreement and BA is willing to grant such option
to Alseres, on the terms and conditions set forth in this Option
Agreement.
BA and Alseres agree as
follows:
1. The terms used in this Option
Agreement shall have the meaning set foth in the License Agreement.
All references to dollars are U.S. dollars.
2. Option . BA hereby
grants to Alseres an option (the “ Option ”) to
amend the License Agreement (the “ Amendment ”)
as described in Section 3 below. The term of the Option (the
“ Option Period ”) shall commence on the
Effective Date and shall expire upon the earlier of (a) the
date of consummation of the sale or issuance of shares of capital
stock of Alseres (other than issuance of shares of capital stock of
Alseres to officers, directors or employees of, or consultants to,
Alseres in their respective capacities as such), including the sale
of debt that is convertible into shares of capital stock of
Alseres, which results in aggregate gross proceeds (in one closing
or a series of closings) to Alseres of not less than Twenty-Five
Million Dollars ($25,000,000) or more or (b) one hundred
eighty (180) days after the Effective Date. Alseres may
exercise the Option at any time during the Option Period by
providing BA with notice of such exercise and simultaneously paying
to BA the Option Fee described in Section 2 below. Upon such
exercise, the Parties shall enter into the Amendment. In the event
that Alseres fails to exercise the Option by the end of the Option
Period, the Option shall expire and the License Agreement shall
remain in full force and effect without amendment.
3. Option Fee . In
consideration for the Option granted in Section 1, Alseres
agrees to pay to BA on or before the last day of the Option Period
the amount of Seven Million Dollars ($7,000,000) (the “
Option Fee ”), which Option Fee shall be
nonrefundable.
4. Negotiation of the
Amendment . During the Option Period and upon confirmation by
Alseres that it intends to exercise the Option, Alseres and BA will
cooperate to negotiate and finalize the Amendment, which Amendment
shall include the terms set forth on Schedule 1
hereto.
5. Confidentiality .
Except as otherwise required by law (including (i) filings and
disclosures required by securities laws and exchange and Nasdaq
rules or (ii) court or relevant administrative order), the
existence and content of this Option Agreement and the
Parties’ arrangements herein are confidential information. In
addition, secret, confidential or nonpublic information disclosed
by one Party to the other pursuant to the arrangements contemplated
hereby will be treated as confidential information of the
disclosing Party. Any and all information described herein as
confidential information shall not be disclosed to any third party
without the consent of both Parties, provided that either Party may
disclose such information to its affiliates and employees who have
a need to know such information in order to effectuate the purposes
of this Option Agreement, as well as to consultants, agents,
investors and advisors of such Party, provided such consultants,
agents, investors and advisors have committed to maintain the
confidentiality of such information.
6. Representations and
Warranties . Each of BA and Alseres hereby represents and
warrants that (a) such Party has the power and authority to
enter into and to perform its obligations under this Option
Agreement and the Amendment; (b) the execution, delivery and
performance by such Party
