You are here: Agreements > Royalty Agreement > DELMAR PHARMACEUTICALS, INC. ROYALTY AGREEMENT

SITE SEARCH
AGREEMENTS / CONTRACTS
(optional)
(optional)
Try our advanced search >>
CLAUSES Search Contract Clauses >>
Browse Contract Clause Library>>

Delmar Pharmaceuticals, Inc. Royalty Agreement

Royalty Agreement

Legal Documents
You are currently viewing:

 This Royalty Agreement involves

DELMAR PHARMACEUTICALS, INC. | DELMAR PHARMACEUTICALS, INC

. RealDealDocs™ contains millions of easily searchable legal documents and clauses from top law firms. Search for free - click here.
 

Title: DELMAR PHARMACEUTICALS, INC. ROYALTY AGREEMENT
Governing Law: New York     Date: 5/5/2016
Industry: Biotechnology and Drugs     Sector: Healthcare

join now
50 of the Top 250 law firms use our Products every day

Exhibit 10.2

DELMAR PHARMACEUTICALS, INC.

ROYALTY AGREEMENT

This ROYALTY AGREEMENT (this “ Royalty Agreement ”) is made and entered into as of _________, 2016, by and between DelMar Pharmaceuticals, Inc. a Nevada corporation (the “ Company ” or “ DelMar ”), and the investors set forth on the signature pages affixed hereto (each, an “ Investor ” and, collectively, the “ Investors ”).

WHEREAS, the Investors have agreed to purchase from the Company, and the Company has agreed to sell and issue to the Investors, an aggregate of up to 675,000 shares of Series B Convertible Preferred Stock (the “ Preferred Shares ”) upon the terms and conditions set forth in a Securities Purchase Agreement dated ________, 2016 (the “ Offering ”); and

WHEREAS, in connection with the Investors’ purchase of the Preferred Shares, the Investors will be granted certain Royalty Rights upon the Closing Date as more fully set forth in this Royalty Agreement.

NOW, THEREFORE , in consideration of the mutual terms, conditions and other agreements set forth herein and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, and intending to be legally bound hereby, the parties hereto hereby agree to the following as set forth herein.

1.

Definitions .

For purposes of this Royalty Agreement, the terms set forth below shall have the corresponding meanings provided below.

Affiliate ” means any person controlled directly or indirectly through one or more intermediaries, by the Company. A Person shall be regarded as in control of the Company if the Company owns or directly or indirectly controls more than fifty percent (50%) of the voting stock or other ownership interest of the other person, or if it possesses, directly or indirectly, the power to direct or cause the direction of the management and policies of such person.

Closing ” shall have the meaning set forth in Section 2.2(a) of the Securities Purchase Agreement.

Closing Date ” shall have the meaning set forth in Section 2.2(a) of the Securities Purchase Agreement.

Common Stock ” means the Company’s Common Stock, par value $0.001 per share.

Conversion ” means conversion of the Preferred Shares to shares of Common Stock.

Conversion Price ” means the conversion price of the Preferred Shares.

Company” or “DelMar ” shall have the meaning set forth in the preamble of this Royalty Agreement.

First Commercial Sale ” means, on a country by country basis, with respect to a Product, the first bona fide sale of such Product to a third party by or on behalf of DelMar, its Affiliates or licensees in a country in the Territory after regulatory approval has been achieved for such Product in such country. For greater certainty, sales for test marketing, sampling and promotional uses, clinical trial purposes or compassionate or similar use shall not be considered to constitute a First Commercial Sale, so long as the Product is provided free of charge, or at or below cost.

 

First Vesting Date ” shall be the end of the 12 th month following the Closing Date.

Holder ” means an Investor who holds the Preferred Shares.

Investor ” shall have the meaning set forth in the preamble of this Royalty Agreement.

Licensing Proceeds ” means all cash and marketable securities received by DelMar and its Affiliates from third party licensees with respect to licensing or partnering arrangements pursuant to the development or commercialization of Products, including (i) royalties based on sales of Products by third party licensees or their sublicensees; (ii) any licensing fees for rights to develop or commercialize Products, or other payments in connection with the licensing of rights with respect to Products; (iii) milestone payments based on development, regulatory or commercialization milestones for Products; (iv) equity purchases of DelMar securities pursuant to such licensing or partnering arrangement to the extent not exceeding the fair market value of such securities; and (v) research and development funding.

Mandatory Conversion Date ” shall have the meaning set forth in Section 6(b) of the Certificate of Designation of the Series B Preferred Stock.

Net Sales ” means, for any period, the gross amount invoiced by DelMar and its Affiliates for the sale of Products, (including, without limitation, third party agents, distributors and wholesalers), less the total of the following, to the extent applicable:

(i)

trade, cash and/or quantity discounts not already reflected in the amount invoiced;

 

(ii)

all excise, sales and other consumption taxes (including VAT) and custom duties, whether or not specifically identified as such in the invoice to the third party;

 

(iii)

freight, distribution, insurance and other transportation charges, whether or not specifically identified as such in the invoice to the third party;

 

(iv)

amounts repaid or credited by reason of rejections, defects or returns or because of chargebacks, retroactive price reductions, refunds or billing errors;

 

(v)

any royalty amounts or license fees payable by DelMar to a third party for access to, or licensing in of, such third party’s intellectual property rights for use or exploitation of the Products; and

 

(vi)

rebates and similar payments made with respect to sales paid for or reimbursed by any governmental or regulatory authority such as, by way of illustration and not in limitation of the Parties’ rights hereunder, United States Federal or state Medicaid, Medicare or similar state program or equivalent foreign governmental program.

For purposes of determining Net Sales, “sale” will not include transfers or dispositions for charitable, promotional, pre-clinical, clinical, regulatory or governmental purposes. “Net Sales” exclude all Licensing Proceeds received by DelMar and its Affiliates from third party licensees.

2

 

 

Offering ” shall have the meaning set forth in the preamble of this Royalty Agreement.

Preferred Shares ” shall have the meaning set forth in the preamble of this Royalty Agreement.

Products ” means any and all products (i) containing or comprising VAL-083 (dianhydrogalactitol) as an active ingredient.

Royalty Agreement ” shall have the meaning set forth in the preamble of this agreement.

“Royalty Amounts ” shall have the meaning set forth in Section 2.2 of this Royalty Agreement.

Royalty Rights ” shall have the meaning set forth in Section 2.1 of this Royalty Agreement.

Royalty Term ” means, with respect to each Product, on a country by country basis in each country, commencing on the First Commercial Sale of the Product until the last of:

(i)

the expiration of the last to expire of the Valid Claims covering such Product in such country;

 

(ii)

the expiration of any regulatory exclusivity period covering such Product in such country.

For clarity, by way of example, the Royalty Term in the United States extends to 2036 at the time of this agreement, which period may be altered by the prosecution of the Company’s patent claims and new patent filings from time-to-time. Furthermore, The Company will use commercially reasonable efforts to maximize market exclusivity.

Second Vesting Date ” shall be the end of the 24 th month


continue to document