License Agreement. (a) Other than the Transaction Documents and the License Agreement, there is no contract, agreement or other arrangement (whether written or oral) to which the Seller or any of its Subsidiaries is a party or by which any of their respective assets or properties is bound or committed (i) that creates a Lien on, affects or otherwise relates in any material respect to the Purchased Assets, the License Agreement or the Opiant Technology, or (ii) for which breach, nonperformance, cancellation or failure to renew would reasonably be expected to result in a Material Adverse Change. To the knowledge of Seller, as of the Closing Date there are no Product Agreements other than the License Agreement. Except for the License Amendment, the License Agreement has not been amended or modified. Confidential Treatment has been requested for portions of this exhibit. The copy filed herewith omits the information subject to the confidentiality request. Omissions are designated as “****”. A complete version of this exhibit has been filed separately with the Securities and Exchange Commission. (b) The Seller has provided to the Purchaser true, correct and complete copies of (i) the License Agreement, (ii) all royalty reports delivered to the Seller by Licensee pursuant to the License Agreement and (iii) all material notices and correspondence delivered to, or by, the Seller pursuant to, or relating to, the License Agreement since December 15, 2014. (c) The License Agreement is in full force and effect and is the legal, valid and binding obligation of the Seller and, to the knowledge of the Seller, Licensee, enforceable against the Seller and, to the knowledge of the Seller, Licensee in accordance with its terms, subject, as to enforcement of remedies, to bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’ rights generally, general equitable principles and principles of public policy. The execution and delivery of, and performance of obligations under, the License Agreement were and are within the powers of the Seller and, to the knowledge of the Seller, Licensee. The License Agreement was duly authorized by all necessary action on the part of, and validly executed and delivered by, the Seller and, to the knowledge of the Seller, Licensee. The Seller is not in breach or violation of or in default under the License Agreement which would reasonably be expected to result in a Material Adverse Change. There is no event or circumstance that, upon notice or the passage of time, or both, could reasonably be expected to constitute or give rise to any breach or default in the performance of the License Agreement by the Seller or, to the knowledge of the Seller, Licensee. (d) The Seller has not waived any rights or defaults under the License Agreement or released Licensee, in whole or in part, from any of its obligations under the License Agreement. The Seller and Licensee have not agreed to amend or waive any provision of the License Agreement, and there is no current proposal to do so. (e) To the knowledge of the Seller, no event has occurred that would give the Seller or Licensee the right to terminate the License Agreement or cease paying Royalties or any other amounts thereunder. The Seller has not received any notice of an intention by Licensee to terminate or breach the License Agreement, in whole or in part, or challenging the validity or enforceability of the License Agreement or the obligation to pay the Royalties or any other amounts under the License Agreement, or that the Seller or Licensee is in default of its obligations under the License Agreement. To the knowledge of the Seller, there is no default, violation or breach by Licensee under or of the License Agreement. The Seller has not given Licensee any notice of termination of the License Agreement, in whole or in part. (f) Except as provided in the License Agreement, the Seller is not a party to any agreement providing for or permitting a sharing of, or Set-off or deduction against, the Royalties or any other amounts payable under the License Agreement to the Seller. Confidential Treatment has been requested for portions of this exhibit. The copy filed herewith omits the information subject to the confidentiality request. Omissions are designated as “****”. A complete version of this exhibit has been filed separately with the Securities and Exchange Commission. (g) The Seller has not consented to an assignment by Licensee of any of Licensee’s rights or obligations under the License Agreement, and the Seller is not aware of any such assignment by Licensee. To the knowledge of the Seller, Licensee has not granted any sublicense under the Intellectual Property Rights to any Third Party. Except as contemplated by Section 2.1(a) and Section 2.1(d), the Seller has not assigned, in whole or in part, and has not granted, incurred or suffered to exist any Liens on the License Agreement, the Purchased Assets or any of the Seller’s right, title or interest in and to the Opiant Technology (other than, in the case of the Opiant Technology, the License Agreement). (h) Neither the Seller nor Licensee has made any claim of indemnification under the License Agreement. (i) The Seller has not exercised its rights to conduct an audit under the License Agreement. (j) To the knowledge of the Seller, the Seller has received all amounts owed to it under the License Agreement. The Seller has received (A) each payment pursuant to Section 5.1 of the License Agreement and each payment that was due prior to the date hereof pursuant to Section 5.4 of the License Agreement and (B) each applicable milestone payment pursuant to Sections 5.2.1 and 5.2.2 of the License Agreement. No payments under Sections 5.2.3, 5.2.4, 5.2.5, 5.2.6 or 5.3 of the License Agreement have become payable or have been paid as of the date hereof. No payments under Section 5.4.2 of the License Agreement shall be due and payable from and after the date hereof. (k) Licensee has not provided the Seller with any notice or document pursuant to Sections 3.3.1(b), 4.3.1, 5.5, 11.1 or 11.6 of the License Agreement, and the Seller has not provided Licensee with any notice pursuant to Sections 4.3.3, 11.1 or 11.6 of the License Agreement. The Seller has reached the Lightlake Cost Cap described in Section 3.8.1 of the License Agreement. (l) Except as set forth on Schedule 3.6, no Generic Competition for Narcan® or Third Party Royalty in respect of Narcan® has occurred as of the date hereof and, to the knowledge of the Seller as of the date hereof, no Third Party has developed or is developing a Generic Product. To the knowledge of the Seller, no Product other than Narcan®, and no product containing any Product in combination with another active ingredient, has been or is being developed by Licensee or the Seller. The Seller has not received any communication indicating that Licensee has made any determination or election pursuant to clause (i) or (ii) of Section 5.5 of the License Agreement. (m) Except as set forth on Schedule 3.13(m), all of the representations and warranties of Seller in the License Agreement remain true and correct as if made on the date hereof, except for the effects of the transactions set forth in the License Agreement. Confidential Treatment has been requested for portions of this exhibit. The copy filed herewith omits the information subject to the confidentiality request. Omissions are designated as “****”. A complete version of this exhibit has been filed separately with the Securities and Exchange Commission.
Appears in 2 contracts
Samples: Purchase and Sale Agreement, Purchase and Sale Agreement (Opiant Pharmaceuticals, Inc.)
License Agreement. To ensure that the intent of the parties as set forth in the License Agreement is properly implemented: • Paragraphs (ae) Other than and (f) in the Transaction Documents definition of “Excluded Purchaser Liabilities” will include all Liabilities that are attributable to sales of all Licensed Products and Inventory, including those sales made by Bayer or an Affiliate of Bayer after the Closing for the benefit of Purchaser pursuant to the Transition Services Agreement, the License Agreement, there is no contract, agreement or other arrangement (whether written or oral) to which the Seller or any of its Subsidiaries is this Agreement excluding Liabilities Bayer must indemnify a party or by which any of their respective assets or properties is bound or committed (i) that creates a Lien on, affects or otherwise relates in any material respect to the Purchased Assets, the License Agreement or the Opiant Technology, or (ii) Purchaser Indemnified Person for which breach, nonperformance, cancellation or failure to renew would reasonably be expected to result in a Material Adverse Change. To the knowledge of Seller, as of the Closing Date there are no Product Agreements other than the License Agreement. Except for the License Amendment, the License Agreement has not been amended or modified. Confidential Treatment has been requested for portions of this exhibit. The copy filed herewith omits the information subject to the confidentiality request. Omissions are designated as “****”. A complete version of this exhibit has been filed separately with the Securities and Exchange Commission.
(b) The Seller has provided to the Purchaser true, correct and complete copies of (i) the License Agreement, (ii) all royalty reports delivered to the Seller by Licensee pursuant to the License Agreement and (iii) all material notices and correspondence delivered to, or by, the Seller pursuant to, or relating to, the License Agreement since December 15, 2014.
(c) The License Agreement is in full force and effect and is the legal, valid and binding obligation of the Seller and, to the knowledge of the Seller, Licensee, enforceable against the Seller and, to the knowledge of the Seller, Licensee in accordance with its terms, subject, as to enforcement of remedies, to bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’ rights generally, general equitable principles and principles of public policy. The execution and delivery of, and performance of obligations under, the License Agreement were and are within the powers of the Seller and, to the knowledge of the Seller, Licensee. The License Agreement was duly authorized by all necessary action on the part of, and validly executed and delivered by, the Seller and, to the knowledge of the Seller, Licensee. The Seller is not in breach or violation of or in default under the License Agreement which would reasonably be expected to result in a Material Adverse Change. There is no event or circumstance that, upon notice or the passage of time, or both, could reasonably be expected to constitute or give rise to any breach or default in the performance of the License Agreement by the Seller or, to the knowledge of the Seller, Licensee.
(d) The Seller has not waived any rights or defaults under the License Agreement or released Licenseethis Agreement; • In the event that Bayer is determined by a taxing authority to be liable for income tax, or tax in whole lieu of income tax such as gross receipts tax, and Bayer and/or its Affiliates did not actually receive the income or gross receipts on which such tax was based, and such tax would not have arisen but for the this Inventory Agreement, then Purchaser shall promptly reimburse Bayer for such tax. Notwithstanding the foregoing, Purchaser shall not reimburse Bayer in part, connection for any transfer pricing adjustments imposed by taxing authorities that arise from Bayer’s internal transfer pricing. [***]: CONFIDENTIAL PORTIONS OMITTED AND FILED SEPARATELY WITH THE COMMISSION. • All sales of Inventory and Supplied Inventory billed by either Purchaser or Bayer or any of its obligations under their Affiliates shall be counted for purposes of calculating Net Sales (adjusted as set forth in the definition of “Net Sales”) in the License Agreement. The Seller and Licensee have not agreed to amend • Any Licensed Product sold by Bayer or waive any provision its Affiliates on behalf of the License Agreement, and there is no current proposal to do so.
(e) To the knowledge Purchaser or its Affiliates shall be deemed sold by Purchaser. Any returns of the Seller, no event has occurred that would give the Seller or Licensee the right to terminate the License Agreement or cease paying Royalties or any other amounts thereunder. The Seller has not received any notice of an intention by Licensee to terminate or breach the License Agreement, such Licensed Product shall be handled in whole or in part, or challenging the validity or enforceability of the License Agreement or the obligation to pay the Royalties or any other amounts under the License Agreement, or that the Seller or Licensee is in default of its obligations under the License Agreement. To the knowledge of the Seller, there is no default, violation or breach by Licensee under or accordance with Section 9.10.4 of the License Agreement. The Seller has not given Licensee any notice of termination • Bayer will maintain adequate insurance coverage of the License Agreement, Inventory in whole or in part.
(f) Except as provided in Bayer’s possession for any casualty losses until the License Agreement, the Seller is not a party to any agreement providing for or permitting a sharing of, or Set-off or deduction against, the Royalties or any other amounts payable under the License Agreement to the SellerTurnover Date. Confidential Treatment has been requested for portions of this exhibit. The copy filed herewith omits the information subject to the confidentiality request. Omissions are designated as “****”. A complete version of this exhibit has been filed separately with the Securities and Exchange Commission.
(g) The Seller has not consented to an assignment by Licensee of any of Licensee’s rights or obligations under the License Agreement, and the Seller is not aware of any such assignment by Licensee. To the knowledge of the Seller, Licensee has not granted any sublicense under the Intellectual Property Rights to any Third Party. Except as contemplated by Section 2.1(a) and Section 2.1(d), the Seller has not assigned, in whole or in part, and has not granted, incurred or suffered to exist any Liens on the License Agreement, the Purchased Assets or any of the Seller’s right, title or interest in and to the Opiant Technology (other than, in In the case of the Opiant Technologyany casualty or other insured loss of Inventory for which Purchaser has paid Bayer, the License Agreement).
(h) Neither the Seller nor Licensee has made Bayer will remit to Purchaser any claim of indemnification under the License Agreement.
(i) The Seller has not exercised its rights to conduct an audit under the License Agreement.
(j) To the knowledge of the Seller, the Seller has received all amounts owed to insurance proceeds it under the License Agreement. The Seller has received (A) each payment pursuant to Section 5.1 of the License Agreement and each payment that was due prior to the date hereof pursuant to Section 5.4 of the License Agreement and (B) each applicable milestone payment pursuant to Sections 5.2.1 and 5.2.2 of the License Agreement. No payments under Sections 5.2.3, 5.2.4, 5.2.5, 5.2.6 or 5.3 of the License Agreement have become payable or have been paid as of the date hereof. No payments under Section 5.4.2 of the License Agreement shall be due and payable from and after the date hereof.
(k) Licensee has not provided the Seller with any notice or document pursuant to Sections 3.3.1(b), 4.3.1, 5.5, 11.1 or 11.6 of the License Agreement, and the Seller has not provided Licensee with any notice pursuant to Sections 4.3.3, 11.1 or 11.6 of the License Agreement. The Seller has reached the Lightlake Cost Cap described in Section 3.8.1 of the License Agreement.
(l) Except as set forth on Schedule 3.6, no Generic Competition for Narcan® or Third Party Royalty receives in respect of Narcan® has occurred as of the date hereof and, to the knowledge of the Seller as of the date hereof, no Third Party has developed or is developing a Generic Product. To the knowledge of the Seller, no Product other than Narcan®, and no product containing any Product in combination with another active ingredient, has been or is being developed by Licensee or the Seller. The Seller has not received any communication indicating that Licensee has made any determination or election pursuant to clause (i) or (ii) of Section 5.5 of the License Agreementthereof.
(m) Except as set forth on Schedule 3.13(m), all of the representations and warranties of Seller in the License Agreement remain true and correct as if made on the date hereof, except for the effects of the transactions set forth in the License Agreement. Confidential Treatment has been requested for portions of this exhibit. The copy filed herewith omits the information subject to the confidentiality request. Omissions are designated as “****”. A complete version of this exhibit has been filed separately with the Securities and Exchange Commission.
Appears in 2 contracts
Samples: License and Asset Purchase Agreement (Spectrum Pharmaceuticals Inc), License and Asset Purchase Agreement (Spectrum Pharmaceuticals Inc)
License Agreement. (a) Other than the Transaction Documents Sublicensor has provided Sublicensee with true and the License Agreement, there is no contract, agreement or other arrangement (whether written or oral) to which the Seller or any complete copies of its Subsidiaries is a party or by which any of their respective assets or properties is bound or committed (i) that creates a Lien on, affects or otherwise relates in any material respect to the Purchased Assets, the License Agreement or the Opiant Technology, or (ii) for which breach, nonperformance, cancellation or failure to renew would reasonably be expected to result in a Material Adverse Change. To the knowledge of Seller, as of the Closing Date there are no Product Agreements other than the License Agreement. Except for the License Amendment, the License Agreement has not been amended or modified. Confidential Treatment has been requested for portions of this exhibit. The copy filed herewith omits the information subject to the confidentiality request. Omissions are designated as “****”. A complete version of this exhibit has been filed separately with the Securities and Exchange CommissionEffective Date.
(b) The Seller has provided to Sublicensee acknowledges and agrees that the Purchaser true, correct and complete copies of (isublicense granted under Section 2(a) the License Agreement, (ii) all royalty reports delivered to the Seller by Licensee pursuant to the License Agreement and (iii) all material notices and correspondence delivered below is subject to, or byand Sublicensee shall comply with, the Seller pursuant to, or relating to, the License Agreement since December 15, 2014.
(c) The License Agreement is in full force all applicable terms and effect and is the legal, valid and binding obligation of the Seller and, to the knowledge of the Seller, Licensee, enforceable against the Seller and, to the knowledge of the Seller, Licensee in accordance with its terms, subject, as to enforcement of remedies, to bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’ rights generally, general equitable principles and principles of public policy. The execution and delivery of, and performance of obligations under, the License Agreement were and are within the powers of the Seller and, to the knowledge of the Seller, Licensee. The License Agreement was duly authorized by all necessary action on the part of, and validly executed and delivered by, the Seller and, to the knowledge of the Seller, Licensee. The Seller is not in breach or violation of or in default under the License Agreement which would reasonably be expected to result in a Material Adverse Change. There is no event or circumstance that, upon notice or the passage of time, or both, could reasonably be expected to constitute or give rise to any breach or default in the performance conditions of the License Agreement by in accordance with the Seller orfollowing schedule:
(i) Upon the Initial Closing, to the knowledge and effective as of the SellerInitial Closing date, Licensee.
(d) The Seller has not waived any rights or defaults under without limiting the foregoing, the terms of the License Agreement are hereby incorporated by reference in this Agreement, together with any necessary conforming changes, and will be effective as if fully set forth herein; provided that any notices or released Licensee, in whole or in part, from communications required to be provided to Licensor under any of its obligations under the foregoing shall be provided by Sublicensee to Sublicensor. For the avoidance of doubt, Sublicensee shall assume the duties, obligations, and rights of the Sublicensor in of the License Agreement. The Seller Subject to and Licensee have not agreed to amend or waive any provision the extent permitted under the terms of the License Agreement, Sublicensee will have the right to control any third party infringement, invalidation or other claims with respect to the Razor Assay (as such term is defined in the SSPA); provided, that Sublicensee will reasonably consult with Encore regarding any matters of patent infringement, invalidation and there is no current proposal enforcement and give reasonable consideration to do soEncore’s input in connection therewith.
(eii) To At any time after the knowledge Second Closing, at the sole election of the SellerSublicensee, no event has occurred that would give the Seller or Licensee Sublicensee will have the right to terminate transfer the License Agreement or cease paying Royalties or any other amounts thereunder. The Seller has not received any notice of an intention by Licensee in full and all related intellectual property rights from Sublicensor to terminate or breach the License AgreementSublicensee, in whole or in part, or challenging the validity or enforceability and upon such transfer all sections of the License Agreement or shall be applicable to the obligation Sublicensee as if it were a Licensee to pay the Royalties or any other amounts under the License Agreement, or that the Seller or Licensee is in default of its obligations under the License Agreement. To If such election is made by Sublicensee, Sublicensor will promptly obtain for Sublicensee, and Sublicensee shall execute, a Consent to Substitution of Party Agreement for the knowledge License, evidencing the Regents’ approval of Sublicensee as the Seller, there is no default, violation or breach by Licensee exclusive licensee under or of the License Agreement. The Seller has not given Licensee any notice of termination of the License Agreement, in whole or in part.
(f) Except as provided in the License Agreement, the Seller is not a party to any agreement providing for or permitting a sharing of, or Set-off or deduction against, the Royalties or any other amounts payable under the License Agreement to the Seller. Confidential Treatment has been requested for portions of this exhibit. The copy filed herewith omits the information subject to the confidentiality request. Omissions are designated as “****”. A complete version of this exhibit has been filed separately with the Securities and Exchange Commission.
(g) The Seller has not consented to an assignment by Licensee of any of Licensee’s rights or obligations under the License Agreement, and the Seller is not aware of any such assignment by Licensee. To the knowledge of the Seller, Licensee has not granted any sublicense under the Intellectual Property Rights to any Third Party. Except as contemplated by Section 2.1(a) and Section 2.1(d), the Seller has not assigned, in whole or in part, and has not granted, incurred or suffered to exist any Liens on the License Agreement, the Purchased Assets or any of the Seller’s right, title or interest in and to the Opiant Technology (other than, in the case of the Opiant Technology, the License Agreement).
(h) Neither the Seller nor Licensee has made any claim of indemnification under the License Agreement.
(ic) The Seller has Capitalized terms that are not exercised its rights otherwise defined in this Agreement will have the meanings given to conduct an audit under such terms in the License Agreement, or if not defined therein, in the SSPA.
(jd) To Sublicensor is responsible for notifying the knowledge Regents of this Agreement and providing the Regents a copy and summary of the Sellermaterial terms of this Agreement within thirty (30) days of the Effective Date, the Seller has received all amounts owed to it under the License Agreement. The Seller has received (A) each payment pursuant to Section 5.1 in compliance with Paragraph 3.3 of the License Agreement and each payment that was guarantee all monies due prior to the date hereof pursuant to Section 5.4 of Regents under the License Agreement and (B) each applicable milestone payment pursuant to Sections 5.2.1 and 5.2.2 of the License Agreement. No payments under Sections 5.2.3, 5.2.4, 5.2.5, 5.2.6 or 5.3 of the License Agreement have become payable or have been paid as of the date hereof. No payments under Section 5.4.2 of the License Agreement shall be due and payable from and after the date hereofSublicense.
(k) Licensee has not provided the Seller with any notice or document pursuant to Sections 3.3.1(b), 4.3.1, 5.5, 11.1 or 11.6 of the License Agreement, and the Seller has not provided Licensee with any notice pursuant to Sections 4.3.3, 11.1 or 11.6 of the License Agreement. The Seller has reached the Lightlake Cost Cap described in Section 3.8.1 of the License Agreement.
(l) Except as set forth on Schedule 3.6, no Generic Competition for Narcan® or Third Party Royalty in respect of Narcan® has occurred as of the date hereof and, to the knowledge of the Seller as of the date hereof, no Third Party has developed or is developing a Generic Product. To the knowledge of the Seller, no Product other than Narcan®, and no product containing any Product in combination with another active ingredient, has been or is being developed by Licensee or the Seller. The Seller has not received any communication indicating that Licensee has made any determination or election pursuant to clause (i) or (ii) of Section 5.5 of the License Agreement.
(m) Except as set forth on Schedule 3.13(m), all of the representations and warranties of Seller in the License Agreement remain true and correct as if made on the date hereof, except for the effects of the transactions set forth in the License Agreement. Confidential Treatment has been requested for portions of this exhibit. The copy filed herewith omits the information subject to the confidentiality request. Omissions are designated as “****”. A complete version of this exhibit has been filed separately with the Securities and Exchange Commission.
Appears in 2 contracts
Samples: Subscription and Stock Purchase Agreement (OncoCyte Corp), Sublicense and Distribution Agreement (OncoCyte Corp)
License Agreement. Except as set forth on Schedule 3.14 of the Disclosure Schedule:
(a) Other than the Transaction Documents and the License Agreement, there is no contract, agreement or other legally binding arrangement (whether written or oral) to which any member of the Seller or any of its Subsidiaries Group is a party or by which any of their respective assets or properties is bound or committed (i) that creates a Lien on, affects or otherwise relates in any material respect to the Purchased Assets, Assets or the License Agreement or the Opiant Technology, calculation of the Receivables or (ii) for which breach, nonperformance, cancellation or failure to renew would reasonably be expected to result in a Material Adverse Change. To the knowledge of Seller, as of the Closing Date there are no Product Agreements other than the License Agreement. Except for the License Amendment, the License Agreement has not been amended or modified. Confidential Treatment has been requested for portions of this exhibit. The copy filed herewith omits the information subject to the confidentiality request. Omissions are designated as “****”. A complete version of this exhibit has been filed separately with the Securities and Exchange CommissionEffect.
(b) The Seller Group has provided to the Purchaser true, correct and complete copies of (i) the License Agreement, (ii) all royalty reports Sales Reports delivered to any member of the Seller Group by Licensee pursuant to the License Agreement and Agreement, (iii) all [***] and (iv) all material written notices and correspondence delivered to Licensee by any member of the Seller Group or by Licensee to any member of the Seller Group, in each case, relating to, or by, the Seller pursuant to, or relating toinvolving, the License Agreement since December 15Agreement, 2014.
(c) The License Agreement is in full force and effect and is the legal, valid and binding obligation royalties payable pursuant to Section 6.1 thereof or Net Sales of the Seller and, Licensed Products (including the cumulative Net Sales of each Licensed Product to date); provided that if and to the knowledge extent that any portion of any material written notice or correspondence referred to in clause (iv) hereof contains information relating to development and commercialization strategy or activities (such information relating to development and commercialization strategy or activities, “Confidential Activities”) and furnishing the Seller, Licensee, enforceable against portion of such notice or correspondence relating to Confidential Activities would constitute a breach by the Seller and, to the knowledge Group of the Seller, Licensee in accordance with its terms, subject, as to enforcement of remedies, to bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’ rights generally, general equitable principles and principles of public policy. The execution and delivery of, and performance of confidentiality obligations under, the License Agreement were and are within the powers of the Seller and, to the knowledge of the Seller, Licensee. The License Agreement was duly authorized by all necessary action on the part of, and validly executed and delivered by, the Seller and, to the knowledge of the Seller, Licensee. The Seller is not in breach or violation of or in default under the License Agreement which would reasonably be expected to result in (a Material Adverse Change. There is no event or circumstance that“Confidentiality Breach”), upon notice or the passage of time, or both, could reasonably be expected to constitute or give rise to any breach or default in the performance of the License Agreement by then the Seller or, Group has provided to the knowledge Purchaser Summary Disclosure in writing of the Seller, Licensee.
(d) The Seller has not waived any rights or defaults under the License Agreement or released Licensee, in whole or in part, from any of its obligations under the License Agreementsuch Confidential Activities. The Seller and Licensee have not agreed to amend or waive any provision of the License Agreement, and there is no current proposal to do so.
(e) To the knowledge of the Seller, no event has occurred that would give the Seller or Licensee the right to terminate the License Agreement or cease paying Royalties or any other amounts thereunder. The Seller has not received any notice of an intention by Licensee to terminate or breach the License Agreement, in whole or in part, or challenging the validity or enforceability of the License Agreement or the obligation to pay the Royalties or any other amounts under the License Agreement, or that the Seller or Licensee is in default of its obligations under the License Agreement. To the knowledge of the Seller, there is no default, violation or breach by Licensee under or of the License Agreement. The Seller has not given Licensee any notice of termination of the License Agreement, in whole or in part.
(f) Except as provided in the License Agreement, the Seller is not a party to any agreement providing for or permitting a sharing of, or Set-off or deduction against, the Royalties or any other amounts payable under the License Agreement to the Seller. Confidential Treatment has been requested for portions of this exhibit. The copy filed herewith omits the information subject to the confidentiality request. Omissions are designated as “****”. A complete version of this exhibit has been filed separately with the Securities and Exchange Commission.
(g) The Seller has not consented to an assignment by Licensee of any of Licensee’s rights or obligations under the License Agreement, and the Seller is not aware of any such assignment by Licensee. To the knowledge of the Seller, Licensee has not granted any sublicense under the Intellectual Property Rights to any Third Party. Except as contemplated by Section 2.1(a) and Section 2.1(d), the Seller has not assigned, in whole or in part, and has not granted, incurred or suffered to exist any Liens on the License Agreement, the Purchased Assets or any of the Seller’s right, title or interest in and to the Opiant Technology (other than, in the case of the Opiant Technology, the License Agreement).
(h) Neither the Seller nor Licensee has made any claim of indemnification under the License Agreement.
(i) The Seller has not exercised its rights to conduct an audit under the License Agreement.
(j) To the knowledge of the Seller, the Seller has received all amounts owed to it under the License Agreement. The Seller has received Summary Disclosure” means (A) each payment pursuant to Section 5.1 a written summary of the License Agreement and each payment that was due prior to the date hereof pursuant to Section 5.4 of the License Agreement and such Confidential Activities or (B) each applicable milestone payment pursuant to Sections 5.2.1 and 5.2.2 of the License Agreement. No payments under Sections 5.2.3, 5.2.4, 5.2.5, 5.2.6 or 5.3 of the License Agreement have become payable or have been paid as of the date hereof. No payments under Section 5.4.2 of the License Agreement shall be due and payable from and after the date hereof.
(k) Licensee has not provided the Seller with any notice or document pursuant to Sections 3.3.1(b), 4.3.1, 5.5, 11.1 or 11.6 of the License Agreement, and the Seller has not provided Licensee with any notice pursuant to Sections 4.3.3, 11.1 or 11.6 of the License Agreement. The Seller has reached the Lightlake Cost Cap described in Section 3.8.1 of the License Agreement.
(l) Except as set forth on Schedule 3.6, no Generic Competition for Narcan® or Third Party Royalty in respect of Narcan® has occurred as of the date hereof and, to the knowledge extent that providing such a summary would itself constitute a Confidentiality Breach, then a document paraphrasing or otherwise describing the substance of the Seller as of the date hereof, no Third Party has developed or is developing a Generic Product. To the knowledge of the Seller, no Product other than Narcan®, and no product containing any Product in combination with another active ingredient, has been or is being developed by Licensee or the Seller. The Seller has not received any communication indicating that Licensee has made any determination or election pursuant to clause (i) or (ii) of Section 5.5 of the License Agreement.
(m) Except as set forth on Schedule 3.13(m), all of the representations and warranties of Seller in the License Agreement remain true and correct as if made on the date hereof, except for the effects of the transactions set forth in the License Agreement. such Confidential Treatment has been requested for portions of this exhibit. The copy filed herewith omits the information subject Activities to the confidentiality request. Omissions are designated as “****”. A complete version of this exhibit has been filed separately with the Securities and Exchange Commissionmaximum extent possible without causing a Confidentiality Breach.
Appears in 1 contract
License Agreement. (a) Other than 5.1.1 As a condition precedent to the Transaction Documents Commencement Date, the GOB shall handover to the Concessionaire a part of the Site required for the Completion Conditions. Thereafter, as a condition precedent to the commencement by the Concessionaire of each stage of the Expansion Works, determined and finalized under the Feasibility Study as approved by the GOB under this Agreement, and in any case within [•] Days of the written notification of the Concessionaire to the GOB, informing the GOB that it intends to commence the relevant stage of the Expansion Works, the GOB shall handover the corresponding parcel of the Site required to undertake the relevant Expansion Works. For the handover of each parcel of the Site, the Concessionaire and the GOB shall enter into a license agreement (the “License Agreement, there is no contract, agreement or other arrangement (whether written or oral”) to which shall provide for the Seller or any handover and possession of its Subsidiaries is a party or by which any the parcel of their respective assets or properties is bound or committed (i) that creates a Lien on, affects or otherwise relates in any material respect the Site to the Purchased Assets, the License Agreement or the Opiant Technology, or (ii) for which breach, nonperformance, cancellation or failure to renew would reasonably be expected to result in a Material Adverse Change. To the knowledge of Seller, as of the Closing Date there are no Product Agreements other than the License Agreement. Except for the License Amendment, the License Agreement has not been amended or modified. Confidential Treatment has been requested for portions of this exhibit. The copy filed herewith omits the information subject to the confidentiality request. Omissions are designated as “****”. A complete version of this exhibit has been filed separately with the Securities and Exchange Commission.
(b) The Seller has provided to the Purchaser true, correct and complete copies of (i) the License Agreement, (ii) all royalty reports delivered to the Seller by Licensee pursuant to the License Agreement and (iii) all material notices and correspondence delivered to, or by, the Seller pursuant to, or relating to, the License Agreement since December 15, 2014.
(c) The License Agreement is in full force and effect and is the legal, valid and binding obligation of the Seller and, to the knowledge of the Seller, Licensee, enforceable against the Seller and, to the knowledge of the Seller, Licensee in accordance with its terms, subject, as to enforcement of remedies, to bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’ rights generally, general equitable principles and principles of public policy. The execution and delivery of, and performance of obligations under, the License Agreement were and are within the powers of the Seller and, to the knowledge of the Seller, LicenseeConcessionaire. The License Agreement was duly authorized by all necessary action on shall be in the part of, form and validly executed and delivered by, the Seller and, to the knowledge of the Seller, Licenseemanner provided in Schedule 3 (License Agreement). The Seller is not in breach or violation of or in default under the License Agreement which would reasonably be expected to result in a Material Adverse Change. There is no event or circumstance GOB shall also ensure that, upon notice or following the passage execution of time, or both, could reasonably be expected to constitute or give rise to any breach or default in the performance of the License Agreement by the Seller or, to the knowledge of the Seller, Licensee.
(d) The Seller has not waived any rights or defaults under the License Agreement or released Licensee, in whole or in part, from any of its obligations under the License Agreement. The Seller and Licensee have not agreed to amend or waive any provision of the License Agreement, and there is no current proposal to do so.
(e) To the knowledge of the Seller, no event has occurred that would give the Seller or Licensee the right to terminate the License Agreement or cease paying Royalties or any other amounts thereunder. The Seller has not received any notice of an intention by Licensee to terminate or breach the License Agreement, in whole or in part, or challenging the validity or enforceability of the License Agreement or the obligation to pay the Royalties or any other amounts under the License Agreement, or that the Seller or Licensee is in default of its obligations under the License Agreement. To the knowledge of the Seller, there is no default, violation or breach by Licensee under or of the License Agreement. The Seller has not given Licensee any notice of termination of the License Agreement, in whole or in part.
(f) Except as provided in the each License Agreement, the Seller is not a party Mines and Mineral Development Department of the Government of Balochistan, has granted the Mining Lease for the corresponding parcel of the Site to any agreement providing the Concessionaire in accordance with the Applicable Laws.
5.1.2 The Concessionaire shall be responsible for or permitting a sharing of, or Set-off or deduction against, the Royalties or any other amounts payable under all payments to be made in connection with the License Agreement in accordance with the Applicable Laws including, without limitation, stamp duty, registration fees and charges and capital value tax and shall take all steps to ensure that the Seller. Confidential Treatment has been requested for portions License Agreement is registered with the Competent Authority under the Applicable Laws, if required.
5.1.3 The term of each License Agreement shall commence from the date of its execution and terminate upon the expiry or termination of this exhibit. The copy filed herewith omits Agreement (the information subject to the confidentiality request. Omissions are designated as “****License Term”. A complete version of this exhibit has been filed separately with the Securities and Exchange Commission.
(g) The Seller has not consented to an assignment by Licensee of any of Licensee’s rights or obligations under the License Agreement, and the Seller is not aware of any such assignment by Licensee. To the knowledge of the Seller, Licensee has not granted any sublicense under the Intellectual Property Rights to any Third Party. Except as contemplated by Section 2.1(a) and Section 2.1(d), the Seller has not assigned, in whole or in part, and has not granted, incurred or suffered to exist any Liens on the License Agreement, the Purchased Assets or any of the Seller’s right, title or interest in and to the Opiant Technology (other than, in the case of the Opiant Technology, the License Agreement).
(h) Neither the Seller nor Licensee has made any claim 5.1.4 All present and future federal, provincial, municipal, city district government, taxes, duties, levies or other impositions whatsoever arising out of indemnification under the License Agreement.
(i) The Seller has not exercised its rights to conduct an audit under the License Agreement.
(j) To the knowledge of the Seller, the Seller has received all amounts owed to it under the License Agreement. The Seller has received (A) each payment pursuant to Section 5.1 of the License Agreement and each payment that was due prior to the date hereof pursuant to Section 5.4 of the License Agreement and (B) each applicable milestone payment pursuant to Sections 5.2.1 and 5.2.2 of the License Agreement. No payments under Sections 5.2.3, 5.2.4, 5.2.5, 5.2.6 or 5.3 of the License Agreement have become payable or have been paid as of the date hereof. No payments under Section 5.4.2 a result of the License Agreement shall be due and payable from and after paid by the date hereofConcessionaire. Any payments made by the GOB on behalf of the Concessionaire shall be reimbursed by the Concessionaire to the GOB within ten (10) Days of such payment by the GOB.
5.1.5 The Concessionaire hereby indemnifies the GOB from all liabilities, claims, damages, costs, penalties, fines, expenses, fees (kincluding attorney’s fees) Licensee has not provided the Seller and charges of any nature associated with any notice or document pursuant to Sections 3.3.1(b), 4.3.1, 5.5, 11.1 or 11.6 non-compliance by the Concessionaire of the its obligations contained in this Section 5.1 (License Agreement, and the Seller has not provided Licensee with any notice pursuant to Sections 4.3.3, 11.1 or 11.6 of the License Agreement. The Seller has reached the Lightlake Cost Cap described in Section 3.8.1 of the License Agreement).
(l) Except as set forth on Schedule 3.6, no Generic Competition for Narcan® or Third Party Royalty in respect of Narcan® has occurred as of the date hereof and, to the knowledge of the Seller as of the date hereof, no Third Party has developed or is developing a Generic Product. To the knowledge of the Seller, no Product other than Narcan®, and no product containing any Product in combination with another active ingredient, has been or is being developed by Licensee or the Seller. The Seller has not received any communication indicating that Licensee has made any determination or election pursuant to clause (i) or (ii) of Section 5.5 of the License Agreement.
(m) Except as set forth on Schedule 3.13(m), all of the representations and warranties of Seller in the License Agreement remain true and correct as if made on the date hereof, except for the effects of the transactions set forth in the License Agreement. Confidential Treatment has been requested for portions of this exhibit. The copy filed herewith omits the information subject to the confidentiality request. Omissions are designated as “****”. A complete version of this exhibit has been filed separately with the Securities and Exchange Commission.
Appears in 1 contract
Samples: Public Private Partnership Agreement
License Agreement. 5.10.1. During the Purchased Receivable Period, Seller (a) Other than will not breach any of the Transaction Documents and provisions of the License Agreement in a manner that would adversely affect in any respect the amount, timing, duration, or value of the Purchased Receivables, (b) will not forgive, release, or compromise any amount owed to or becoming owed to it under the License Agreement, there is no contractwhich amount constitutes Purchased Receivables hereunder, agreement or other arrangement (whether without Purchaser’s prior written or oral) to which the Seller or any of its Subsidiaries is a party or by which any of their respective assets or properties is bound or committed (i) that creates a Lien onconsent, affects or otherwise relates in any material respect to the Purchased Assets, the License Agreement or the Opiant Technology, or (ii) for which breach, nonperformance, cancellation or failure to renew would reasonably be expected to result in a Material Adverse Change. To the knowledge of Seller, as of the Closing Date there are no Product Agreements other than the License Agreement. Except for the License Amendment, the License Agreement has not been amended or modified. Confidential Treatment has been requested for portions of this exhibit. The copy filed herewith omits the information subject to the confidentiality request. Omissions are designated as “****”. A complete version of this exhibit has been filed separately with the Securities and Exchange Commission.
(b) The Seller has provided to the Purchaser true, correct and complete copies of (i) the License Agreement, (ii) all royalty reports delivered to the Seller by Licensee pursuant to the License Agreement and (iii) all material notices and correspondence delivered to, or by, the Seller pursuant to, or relating to, the License Agreement since December 15, 2014.
(c) The License Agreement is in full force and effect and is the legalwill not assign, valid and binding obligation of the Seller andamend, to the knowledge of the Sellermodify, Licenseesupplement, enforceable against the Seller andrestate, to the knowledge of the Sellerwaive, Licensee in accordance with its terms, subject, as to enforcement of remedies, to bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’ rights generally, general equitable principles and principles of public policy. The execution and delivery of, and performance of obligations under, the License Agreement were and are within the powers of the Seller and, to the knowledge of the Seller, Licensee. The License Agreement was duly authorized by all necessary action on the part of, and validly executed and delivered by, the Seller and, to the knowledge of the Seller, Licensee. The Seller is not in breach or violation of or in default under the License Agreement which would reasonably be expected to result in a Material Adverse Change. There is no event or circumstance that, upon notice or the passage of timecancel, or both, could reasonably be expected to constitute terminate (or give rise consent to any breach cancellation or default in the performance of the License Agreement by the Seller or, to the knowledge of the Seller, Licensee.
(d) The Seller has not waived any rights or defaults under the License Agreement or released Licenseetermination of), in whole or in part, from any rights affecting the Purchased Receivables in a manner that would reasonably be expected to adversely affect the value of its obligations the Purchased Receivables, without Purchaser’s prior written consent. Notwithstanding the foregoing, Purchaser stipulates and agrees that it will not be a breach of this Agreement, and no consent of Purchaser will be required, for Seller to allow, without interest or penalty, Licensee to remit to Seller Royalty Reports, Purchased Receivable Reports and Royalty Payments on behalf of Seller in accordance with the terms of this Agreement.
5.10.2. During the Purchased Receivable Period, promptly after a Responsible Seller Party obtains Knowledge of a breach of or default under, or an alleged breach of or default under the License AgreementAgreement by Licensee that would reasonably be expected to adversely affect in any material respect the value of the Purchased Receivables, Seller will (a) promptly (but in any event within five Business Days) give a written notice to Purchaser describing in reasonable detail (to the extent such description would not constitute a Confidentiality Breach) the relevant breach or default and (b) proceed in consultation with Purchaser (and the Royalty Parties, as applicable). The Seller will enforce compliance within the time periods set forth in Section 8.3.3 (Royalty Payments and Licensee have not agreed Reports) of the License Agreement (or to amend or waive give written notice of any provision such noncompliance to Purchaser), and seek payment of interest under Section 8.11 (Late Payments) of the License Agreement, and there is no current proposal unless Purchaser consents in writing to do sowaive or defer such obligation.
(e) To the knowledge 5.10.3. Any Proceeds of the Seller, no event has occurred that would give the Seller or Licensee the right to terminate an enforcement of Licensee’s obligations under the License Agreement or cease paying Royalties or any other amounts thereunder. The Seller has not received any notice of an intention by Licensee pursuant to terminate or breach the this Section 5.10 (License Agreement), after deduction of all costs and expenses (including attorneys’ fees and expenses) incurred by [***] in whole or connection with such enforcement, will be allocated between Purchaser and Seller in partproportion to their respective then-current Percentage Interests. All costs and expenses (including attorneys’ fees and expenses) of any enforcement pursuant to this Section 5.10 (License Agreement) will be borne by [***] (subject to reimbursement from any Proceeds in accordance with the foregoing sentence). Nothing contained herein will limit Purchaser from retaining, or challenging at its sole cost, separate outside counsel who will be permitted, where reasonably practical, to consult with the validity or enforceability lead counsel selected by Seller in accordance with Section 5.10.2 (License Agreement) for such enforcement.
5.10.4. Following the termination of any licenses to the Licensed Products pursuant to Section 13.2 (Termination) of the License Agreement or the obligation to pay the Royalties or any other amounts under the License Agreement, or that the Seller or Licensee is in default of its obligations under the License Agreement. To the knowledge of the Seller, there is no default, violation or breach by Licensee under or of the License Agreement. The Seller has not given Licensee any notice of termination of the License Agreement, in whole or in part.
(f) Except as provided in the License Agreement, the Seller is not a party to any agreement providing for or permitting a sharing of, or Set-off or deduction against, the Royalties or any other amounts payable under the License Agreement prior to the SellerCap Date, Seller shall use commercially reasonable efforts to enter into one or more new licenses or other commercial arrangements for the purpose of Exploiting the Licensed Products. Confidential Treatment has been requested for portions of this exhibit. The copy filed herewith omits the information subject to the confidentiality request. Omissions are designated as “****”. A complete version of this exhibit has been filed separately If Seller does not commence a replacement commercial relationship on financial terms consistent with the Securities and Exchange Commission.
(g) The Seller has not consented to an assignment by Licensee of any of Licensee’s rights or obligations under the License Agreement, and the Seller is not aware of any such assignment by Licensee. To the knowledge of the Seller, Licensee has not granted any sublicense under the Intellectual Property Rights to any Third Party. Except as contemplated by Section 2.1(a) and Section 2.1(d), the Seller has not assigned, in whole or in part, and has not granted, incurred or suffered to exist any Liens on the License Agreement, the Purchased Assets or any of the Seller’s right, title or interest in and to the Opiant Technology (other than, in the case of the Opiant Technology, the License Agreement).
(h) Neither the Seller nor Licensee has made any claim of indemnification under the License Agreement.
(i) The Seller has not exercised its rights to conduct an audit under the License Agreement.
(j) To the knowledge of the Seller, the Seller has received all amounts owed to it under the License Agreement. The Seller has received (A) each payment pursuant to Section 5.1 those terms of the License Agreement within one hundred eighty (180) days of such termination and each payment that was due prior to has not, commenced its own Exploitation of the date hereof pursuant to Section 5.4 Licensed Products, then Purchaser may, on behalf of Seller and with the cooperation of Seller seek and obtain on behalf of Seller such replacement commercial relationship. Following entry by Seller into any replacement commercial relationship, the term “License Agreement” herein shall reference the License Agreement and (B) each applicable milestone payment pursuant such replacement license agreement, and Purchaser and Seller shall take all reasonable efforts necessary or reasonably useful to Sections 5.2.1 and 5.2.2 amend the terms of this Agreement to account for the context of the License Agreement. No payments under Sections 5.2.3, 5.2.4, 5.2.5, 5.2.6 or 5.3 of replacement commercial relationship providing the License Agreement have become payable or have been paid as of Purchaser with the date hereof. No payments under Section 5.4.2 of the License Agreement shall be due and payable from and after the date hereof.
(k) Licensee has not provided the Seller with any notice or document pursuant to Sections 3.3.1(b), 4.3.1, 5.5, 11.1 or 11.6 of the License Agreement, and the Seller has not provided Licensee with any notice pursuant to Sections 4.3.3, 11.1 or 11.6 of the License Agreement. The Seller has reached the Lightlake Cost Cap described financial benefit bargained for in Section 3.8.1 of the License this Agreement.
(l) Except as set forth on Schedule 3.6, no Generic Competition for Narcan® or Third Party Royalty in respect of Narcan® has occurred as of the date hereof and, to the knowledge of the Seller as of the date hereof, no Third Party has developed or is developing a Generic Product. To the knowledge of the Seller, no Product other than Narcan®, and no product containing any Product in combination with another active ingredient, has been or is being developed by Licensee or the Seller. The Seller has not received any communication indicating that Licensee has made any determination or election pursuant to clause (i) or (ii) of Section 5.5 of the License Agreement.
(m) Except as set forth on Schedule 3.13(m), all of the representations and warranties of Seller in the License Agreement remain true and correct as if made on the date hereof, except for the effects of the transactions set forth in the License Agreement. Confidential Treatment has been requested for portions of this exhibit. The copy filed herewith omits the information subject to the confidentiality request. Omissions are designated as “****”. A complete version of this exhibit has been filed separately with the Securities and Exchange Commission.
Appears in 1 contract
License Agreement. (a) Other than the Transaction Documents License Agreement and the License AgreementTransaction Documents, there is no contract, agreement or other arrangement (whether written or oral) to which the Seller or any of its Subsidiaries is a party or by which any of their respective its assets or properties is bound or committed (i) that creates a Lien on, affects or otherwise relates in any material respect to on the Purchased Assets, the License Agreement or the Opiant Technology, Interest or (ii) for which the breach, nonperformance, cancellation or failure to renew would termination of which could reasonably be expected to result result, individually or in the aggregate, in a Material Adverse Change. To the knowledge of Seller, as of the Closing Date there are no Product Agreements other than the License Agreement. Except for the License Amendment, the License Agreement has not been amended or modified. Confidential Treatment has been requested for portions of this exhibit. The copy filed herewith omits the information subject to the confidentiality request. Omissions are designated as “****”. A complete version of this exhibit has been filed separately with the Securities and Exchange CommissionEffect.
(b) The Seller has provided to the Purchaser Attached hereto as Exhibit G is a true, complete and correct and complete copies copy of (i) the License Agreement, (ii) including all royalty reports delivered to the Seller by Licensee pursuant to the amendments thereto and waivers thereunder. The License Agreement and the UCB Consent constitute the entire agreement between Seller and UCB (iiiand their respective Affiliates) all material notices and correspondence delivered to, or by, relating to the Seller pursuant to, or relating to, the License Agreement since December 15, 2014Purchased Interest.
(c) The Immediately prior to the transfer of the Purchased Interest to the Purchaser hereunder, the License Agreement is in full force and effect and is the legal, valid and binding obligation of the Seller and, to the knowledge Knowledge of the Seller, LicenseeUCB, enforceable against the Seller and, to the knowledge Knowledge of the Seller, Licensee UCB in accordance with its terms, subject, as to enforcement of remedies, to bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’ rights generally, generally and general equitable principles and principles of public policyprinciples. The execution and execution, delivery of, and performance of obligations under, the License Agreement were was and are is within the corporate or similar powers of the Seller and, to the knowledge Knowledge of the Seller, LicenseeUCB. The License Agreement was duly authorized by all necessary action on the part of, and validly executed and delivered by, the Seller (as successor-in-interest to Seller Parent and XOMA Bermuda) and, to the knowledge Knowledge of the Seller, Licensee. The Seller is not in breach or violation of or in default under the License Agreement which would reasonably be expected UCB (as successor-in-interest to result in a Material Adverse ChangeCelltech Therapeutics Ltd.). There is no breach or default, and no event has occurred or circumstance that, upon exists that (with or without notice or the passage lapse of time, or both, could reasonably be expected to ) would constitute or give rise to any a breach or default default, in the performance of the License Agreement by the Seller or, to the knowledge Knowledge of Seller, UCB. To the Knowledge of Seller, no event has occurred or circumstance exists that (with or without notice or lapse of time, or both) could give either UCB or Seller the right to terminate the License Agreement. From and after the Effective Date, Purchaser shall be entitled to enforce the right to payment of any portion of the Seller, LicenseeRoyalty Payment represented by the Purchased Interest when earned directly against UCB pursuant to the License Agreement.
(d) The Neither Seller Parent (as predecessor-in-interest to Seller) nor XOMA Bermuda (as predecessor-in-interest to Seller) nor Seller (as successor-in-interest to Seller Parent and XOMA Bermuda) has not waived any rights or defaults under the License Agreement or released Licensee, in whole or in part, from has taken any of its obligations action nor omitted to take any action under the License Agreement. The Seller and Licensee have not agreed to amend or waive Agreement that adversely affects Purchaser’s rights under any provision of the License Agreement, and there is no current proposal to do soTransaction Documents.
(e) To the knowledge of the Seller, no event has occurred that would give the Seller or Licensee the right to terminate the License Agreement or cease paying Royalties or any other amounts thereunder. The Seller has not received any notice and has no Knowledge (i) of an UCB’s intention by Licensee to terminate terminate, amend or breach restate the License Agreement, in whole or in part, (ii) of UCB’s or challenging any other Person’s or Governmental Authority’s (where applicable) intention to challenge the validity or enforceability of the License Agreement or the obligation of UCB to pay the Royalties Royalty Payment or any other amounts monetary payments under the License Agreement, or (iii) that the Seller or Licensee UCB is in default of any of its obligations under the License Agreement. To the knowledge Seller has no intention of the Sellerterminating, there is no default, violation amending or breach by Licensee under or of restating the License Agreement. The Seller Agreement and has not given Licensee UCB any notice of termination (or request to amend or restate any provision) of the License Agreement, in whole or in part.
(f) Except as provided in the License Agreement, the Seller is not a party to any agreement providing for or permitting a sharing of, or Set-off or deduction against, the Royalties Royalty Payment or any other amounts payable under monetary payment on account of the License Agreement to the Seller. Confidential Treatment has been requested for portions of this exhibit. The copy filed herewith omits the information subject to the confidentiality request. Omissions are designated as “****”. A complete version of this exhibit has been filed separately with the Securities and Exchange CommissionPurchased Interest.
(g) The Other than the UCB Consent obtained by Seller, the sale by Seller of all of Seller’s right, title and interest in, to and under the Purchased Interest to Purchaser and the consummation of the transactions contemplated by the Transaction Documents: (i) will not require the approval, consent, ratification, waiver, or other authorization of UCB or any other Person or Governmental Authority under the License Agreement and will not constitute a breach of or default or event of default under the License Agreement; and (ii) will not require the approval, consent, ratification, waiver, or other authorization of UCB or any other Person or Governmental Authority under any contract or agreement other than the License Agreement or applicable law and will not constitute a breach of or default or event of default under any contract or agreement other than the License Agreement or applicable law, in each case, that could reasonably be expected to result, individually or in the aggregate, in a Material Adverse Effect.
(h) Seller has not consented to an assignment (by Licensee operation of law or otherwise) by UCB of any of LicenseeUCB’s rights or obligations under the License AgreementAgreement with respect to the Purchased Interest, and the nor does Seller is not aware have Knowledge of any such assignment (by Licensee. To the knowledge operation of the Seller, Licensee has not granted any sublicense under the Intellectual Property Rights to any Third Party. Except as contemplated law or otherwise) by Section 2.1(a) and Section 2.1(d), the Seller has not assigned, in whole or in part, and has not granted, incurred or suffered to exist any Liens on the License Agreement, the Purchased Assets or any of the Seller’s right, title or interest in and to the Opiant Technology (other than, in the case of the Opiant Technology, the License Agreement)UCB.
(hi) Neither the Seller Parent (as predecessor-in-interest to Seller), nor Licensee XOMA Bermuda (as predecessor-in-interest to Seller), nor Seller (as successor-in-interest to Seller Parent and XOMA Bermuda), nor Celltech Therapeutics Ltd. (as predecessor-in-interest to UCB) nor UCB (as successor-in-interest to Celltech Therapeutics Ltd.) has made any claim of indemnification under the License Agreement.
(i) The Agreement nor, to the Knowledge of Seller, have there been any events or circumstances that could give rise to a right of such claim by Seller has not exercised its rights to conduct an audit under the License Agreementor UCB.
(j) To the knowledge of the Seller, the Seller has received all amounts owed Pursuant to it under the License Agreement. The , all Royalty Payments Seller has received (Aas successor-in-interest to Seller Parent) each payment pursuant is entitled to Section 5.1 of the License Agreement and each payment that was due prior to the date hereof pursuant to Section 5.4 of the License Agreement and (B) each applicable milestone payment pursuant to Sections 5.2.1 and 5.2.2 of the License Agreement. No payments under Sections 5.2.3, 5.2.4, 5.2.5, 5.2.6 or 5.3 of the License Agreement have become payable or have been paid as of the date hereof. No payments under Section 5.4.2 of the License Agreement receive from UCB shall be due and payable from and after the date hereofcalculated using a [*]% of net sales royalty rate.
(k) Licensee Neither has not provided the Seller with any notice or document pursuant Parent (as predecessor-in-interest to Sections 3.3.1(bSeller), 4.3.1XOMA Bermuda (as predecessor-in-interest to Seller), 5.5Seller (as successor-in-interest to Seller Parent and XOMA Bermuda) or, 11.1 to the Knowledge of Seller Parent, XOMA Bermuda or 11.6 Seller, UCB filed or caused to be filed a United States Return of Partnership Income Form (Form 1065) with respect to any relationship under the License Agreement, and the Seller has not provided Licensee with or any notice pursuant other arrangement (written or oral) related to Sections 4.3.3, 11.1 or 11.6 of the License Agreement. The , nor has Seller has reached the Lightlake Cost Cap described in Section 3.8.1 of the License Agreement.
Parent (l) Except as set forth on Schedule 3.6predecessor-in-interest to Seller), no Generic Competition for Narcan® or Third Party Royalty in respect of Narcan® has occurred XOMA Bermuda (as of the date hereof and, predecessor-in-interest to the knowledge of the Seller as of the date hereof, no Third Party has developed or is developing a Generic Product. To the knowledge of the Seller, no Product other than Narcan®, and no product containing any Product in combination with another active ingredient, has been or is being developed by Licensee or the Seller. The Seller has not received any communication indicating that Licensee has made any determination or election pursuant to clause (i) or Seller (iias successor-in-interest to Seller Parent and XOMA Bermuda) of Section 5.5 of the License Agreementreceived a Schedule K-1 with respect thereto.
(m) Except as set forth on Schedule 3.13(m), all of the representations and warranties of Seller in the License Agreement remain true and correct as if made on the date hereof, except for the effects of the transactions set forth in the License Agreement. Confidential Treatment has been requested for portions of this exhibit. The copy filed herewith omits the information subject to the confidentiality request. Omissions are designated as “****”. A complete version of this exhibit has been filed separately with the Securities and Exchange Commission.
Appears in 1 contract
License Agreement. (a) Other than the Transaction Documents License Agreement and the License AgreementTransaction Documents, there is no contract, agreement or other arrangement (whether written or oral) to which the Seller or any of its Subsidiaries is a party or by which any of their respective its assets or properties is bound or committed (i) that creates a Lien on, affects or otherwise relates in any material respect to on the Purchased Assets, the License Agreement or the Opiant Technology, Interest or (ii) for which the breach, nonperformance, cancellation or failure to renew would termination of which could reasonably be expected to result result, individually or in the aggregate, in a Material Adverse Change. To the knowledge of Seller, as of the Closing Date there are no Product Agreements other than the License Agreement. Except for the License Amendment, the License Agreement has not been amended or modified. Confidential Treatment has been requested for portions of this exhibit. The copy filed herewith omits the information subject to the confidentiality request. Omissions are designated as “****”. A complete version of this exhibit has been filed separately with the Securities and Exchange CommissionEffect.
(b) The Seller has provided to the Purchaser Attached hereto as Exhibit G is a true, complete and correct and complete copies copy of (i) the License Agreement, (ii) including all royalty reports delivered to the Seller by Licensee pursuant to the amendments thereto and waivers thereunder. The License Agreement and [*] constitute the entire agreement between Seller and UCB (iiiand their respective Affiliates) all material notices and correspondence delivered to, or by, relating to the Seller pursuant to, or relating to, the License Agreement since December 15, 2014Purchased Interest.
(c) The Immediately prior to the transfer of the Purchased Interest to the Purchaser hereunder, the License Agreement is in full force and effect and is the legal, valid and binding obligation of the Seller and, to the knowledge Knowledge of the Seller, LicenseeUCB, enforceable against the Seller and, to the knowledge Knowledge of the Seller, Licensee UCB in accordance with its terms, subject, as to enforcement of remedies, to bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’ rights generally, generally and general equitable principles and principles of public policyprinciples. The execution and execution, delivery of, and performance of obligations under, the License Agreement were was and are is within the corporate or similar powers of the Seller and, to the knowledge Knowledge of the Seller, LicenseeUCB. The License Agreement was duly authorized by all necessary action on the part of, and validly executed and delivered by, the Seller (as successor-in-interest to Seller Parent and XOMA Bermuda) and, to the knowledge Knowledge of the Seller, Licensee. The Seller is not in breach or violation of or in default under the License Agreement which would reasonably be expected UCB (as successor-in-interest to result in a Material Adverse ChangeCelltech Therapeutics Ltd.). There is no breach or default, and no event has occurred or circumstance that, upon exists that (with or without notice or the passage lapse of time, or both, could reasonably be expected to ) would constitute or give rise to any a breach or default default, in the performance of the License Agreement by the Seller or, to the knowledge Knowledge of Seller, UCB. To the Knowledge of Seller, no event has occurred or circumstance exists that (with or without notice or lapse of time, or both) could give either UCB or Seller the right to terminate the License Agreement. From and after the Effective Date, Purchaser shall be entitled to enforce the right to payment of any portion of the Seller, LicenseeRoyalty Payment represented by the Purchased Interest when earned directly against UCB pursuant to the License Agreement.
(d) The Neither Seller Parent (as predecessor-in-interest to Seller) nor XOMA Bermuda (as predecessor-in-interest to Seller) nor Seller (as successor-in-interest to Seller Parent and XOMA Bermuda) has not waived any rights or defaults under the License Agreement or released Licensee, in whole or in part, from has taken any of its obligations action nor omitted to take any action under the License Agreement. The Seller and Licensee have not agreed to amend or waive Agreement that adversely affects Purchaser’s rights under any provision of the License Agreement, and there is no current proposal to do soTransaction Documents.
(e) To the knowledge of the Seller, no event has occurred that would give the Seller or Licensee the right to terminate the License Agreement or cease paying Royalties or any other amounts thereunder. The Seller has not received any notice and has no Knowledge (i) of an UCB’s intention by Licensee to terminate terminate, amend or breach restate the License Agreement, in whole or in part, (ii) of UCB’s or challenging any other Person’s or Governmental Authority’s (where applicable) intention to challenge the validity or enforceability of the License Agreement or the obligation of UCB to pay the Royalties Royalty Payment or any other amounts monetary payments under the License Agreement, or (iii) that the Seller or Licensee UCB is in default of any of its obligations under the License Agreement. To the knowledge Seller has no intention of the Sellerterminating, there is no default, violation amending or breach by Licensee under or of restating the License Agreement. The Seller Agreement and has not given Licensee UCB any notice of termination (or request to amend or restate any provision) of the License Agreement, in whole or in part.
(f) Except as provided in the License Agreement, the Seller is not a party to any agreement providing for or permitting a sharing of, or Set-off or deduction against, the Royalties Royalty Payment or any other amounts payable under monetary payment on account of the License Agreement to the Seller. Confidential Treatment has been requested for portions of this exhibit. The copy filed herewith omits the information subject to the confidentiality request. Omissions are designated as “****”. A complete version of this exhibit has been filed separately with the Securities and Exchange CommissionPurchased Interest.
(g) The Other than [*] obtained by Seller, the sale by Seller of all of Seller’s right, title and interest in, to and under the Purchased Interest to Purchaser and the consummation of the transactions contemplated by the Transaction Documents: (i) will not require the approval, consent, ratification, waiver, or other authorization of UCB or any other Person or Governmental Authority under the License Agreement and will not constitute a breach of or default or event of default under the License Agreement; and (ii) will not require the approval, consent, ratification, waiver, or other authorization of UCB or any other Person or Governmental Authority under any contract or agreement other than the License Agreement or applicable law and will not constitute a breach of or default or event of default under any contract or agreement other than the License Agreement or applicable law, in each case, that could reasonably be expected to result, individually or in the aggregate, in a Material Adverse Effect.
(h) Seller has not consented to an assignment (by Licensee operation of law or otherwise) by UCB of any of LicenseeUCB’s rights or obligations under the License AgreementAgreement with respect to the Purchased Interest, and the nor does Seller is not aware have Knowledge of any such assignment (by Licensee. To the knowledge operation of the Seller, Licensee has not granted any sublicense under the Intellectual Property Rights to any Third Party. Except as contemplated law or otherwise) by Section 2.1(a) and Section 2.1(d), the Seller has not assigned, in whole or in part, and has not granted, incurred or suffered to exist any Liens on the License Agreement, the Purchased Assets or any of the Seller’s right, title or interest in and to the Opiant Technology (other than, in the case of the Opiant Technology, the License Agreement)UCB.
(hi) Neither the Seller Parent (as predecessor-in-interest to Seller), nor Licensee XOMA Bermuda (as predecessor-in-interest to Seller), nor Seller (as successor-in-interest to Seller Parent and XOMA Bermuda), nor Celltech Therapeutics Ltd. (as predecessor-in-interest to UCB) nor UCB (as successor-in-interest to Celltech Therapeutics Ltd.) has made any claim of indemnification under the License Agreement.
(i) The Agreement nor, to the Knowledge of Seller, have there been any events or circumstances that could give rise to a right of such claim by Seller has not exercised its rights to conduct an audit under the License Agreementor UCB.
(j) To the knowledge of the Seller, the Seller has received all amounts owed Pursuant to it under the License Agreement. The , all Royalty Payments Seller has received (Aas successor-in-interest to Seller Parent) each payment pursuant is entitled to Section 5.1 of the License Agreement and each payment that was due prior to the date hereof pursuant to Section 5.4 of the License Agreement and (B) each applicable milestone payment pursuant to Sections 5.2.1 and 5.2.2 of the License Agreement. No payments under Sections 5.2.3, 5.2.4, 5.2.5, 5.2.6 or 5.3 of the License Agreement have become payable or have been paid as of the date hereof. No payments under Section 5.4.2 of the License Agreement receive from UCB shall be due and payable from and after the date hereofcalculated using a [*] of net sales royalty rate.
(k) Licensee Neither has not provided the Seller with any notice or document pursuant Parent (as predecessor-in-interest to Sections 3.3.1(bSeller), 4.3.1XOMA Bermuda (as predecessor-in-interest to Seller), 5.5Seller (as successor-in-interest to Seller Parent and XOMA Bermuda) or, 11.1 to the Knowledge of Seller Parent, XOMA Bermuda or 11.6 Seller, UCB filed or caused to be filed a United States Return of Partnership Income Form (Form 1065) with respect to any relationship under the License Agreement, and the Seller has not provided Licensee with or any notice pursuant other arrangement (written or oral) related to Sections 4.3.3, 11.1 or 11.6 of the License Agreement. The , nor has Seller has reached the Lightlake Cost Cap described in Section 3.8.1 of the License Agreement.
Parent (l) Except as set forth on Schedule 3.6predecessor-in-interest to Seller), no Generic Competition for Narcan® or Third Party Royalty in respect of Narcan® has occurred XOMA Bermuda (as of the date hereof and, predecessor-in-interest to the knowledge of the Seller as of the date hereof, no Third Party has developed or is developing a Generic Product. To the knowledge of the Seller, no Product other than Narcan®, and no product containing any Product in combination with another active ingredient, has been or is being developed by Licensee or the Seller. The Seller has not received any communication indicating that Licensee has made any determination or election pursuant to clause (i) or Seller (iias successor-in-interest to Seller Parent and XOMA Bermuda) of Section 5.5 of the License Agreementreceived a Schedule K-1 with respect thereto.
(m) Except as set forth on Schedule 3.13(m), all of the representations and warranties of Seller in the License Agreement remain true and correct as if made on the date hereof, except for the effects of the transactions set forth in the License Agreement. Confidential Treatment has been requested for portions of this exhibit. The copy filed herewith omits the information subject to the confidentiality request. Omissions are designated as “****”. A complete version of this exhibit has been filed separately with the Securities and Exchange Commission.
Appears in 1 contract
License Agreement. (a) Other than Exhibit A hereto contains a true and complete copy of the Transaction Documents License Agreement (including, without limitation, all amendments, supplements and other modifications thereto), and, together with the agreements described in the License Agreement, there is no contract, constitutes the only applicable agreement or (other arrangement than this Agreement and the Transaction Documents) (whether written or orali) to which the Seller or any of its Subsidiaries is a party regarding the Royalty Interests, (ii) which relates to Seller’s entitlement to the Assigned Rights and (iii) by and between Seller and Licensee. To the Knowledge of the Seller, there are no unpaid Royalty Interests that have become due, and none are expected to become overdue, as of the Closing Date.
(b) Seller is not in breach of the License Agreement. To the Knowledge of the Seller, no circumstances or by which any of their respective assets or properties is bound or committed grounds exist that would give rise (i) that creates to a Lien onclaim by Licensee of a breach of the License Agreement and/or any such other agreement which could have a Material Adverse Effect, affects or otherwise relates (ii) to a right of rescission, termination, revision, setoff, or any other rights, in, to or under the Assigned Rights. Seller has no unfulfilled obligations in any material respect to the Purchased Assets, of the License Agreement or the Opiant TechnologyAssigned Rights that were required to be fulfilled on or prior to the date of this Agreement, or (ii) for the lack of fulfillment of which breach, nonperformance, cancellation or failure to renew would reasonably be expected to result in have a Material Adverse Change. To the knowledge of Seller, as of the Closing Date there are no Product Agreements other than the License Agreement. Except for the License Amendment, the License Agreement has not been amended or modified. Confidential Treatment has been requested for portions of this exhibit. The copy filed herewith omits the information subject to the confidentiality request. Omissions are designated as “****”. A complete version of this exhibit has been filed separately with the Securities and Exchange Commission.
(b) The Seller has provided to the Purchaser true, correct and complete copies of (i) the License Agreement, (ii) all royalty reports delivered to the Seller by Licensee pursuant to the License Agreement and (iii) all material notices and correspondence delivered to, or by, the Seller pursuant to, or relating to, the License Agreement since December 15, 2014Effect.
(c) The License Agreement is in full force and effect and is To the legal, valid and binding obligation of the Seller and, to the knowledge of the Seller, Licensee, enforceable against the Seller and, to the knowledge Knowledge of the Seller, Licensee is not in breach of or in default under the License Agreement.
(d) Seller has the full right, power and authority to grant all rights and interests granted to Buyer in this Agreement.
(e) To the Knowledge of the Seller, no circumstance or grounds exist that would invalidate, reduce or eliminate, in whole or in part, the enforceability or scope the Assigned Rights, including, without limitation, Seller’s right to payments made in respect of the Royalty Interest.
(f) To the Knowledge of the Seller, the License Agreement is valid and binding on each other party thereto in accordance with its terms, subject, as to enforcement of remedies, subject to bankruptcy, insolvency, reorganization, moratorium moratorium, ad hoc representative appointment, conciliation, safeguard proceedings, judicial receivership, or similar other laws affecting creditors’ rights generally, generally or general equitable principles and principles of public policy. The execution and delivery ofprinciples, and performance of obligations under, the License Agreement were and are within the powers of the Seller and, to the knowledge of the Seller, Licensee. The License Agreement was duly authorized by all necessary action on the part of, and validly executed and delivered by, the Seller and, to the knowledge of the Seller, Licensee. The Seller is not in breach or violation of or in default under the License Agreement which would reasonably be expected to result in a Material Adverse Change. There is no event or circumstance that, upon notice or the passage of time, or both, could reasonably be expected to constitute or give rise to any breach or default in the performance of the License Agreement by the Seller or, to the knowledge of the Seller, Licensee.
(d) The Seller has not waived any rights or defaults under the License Agreement or released Licensee, in whole or in part, from any of its obligations under the License Agreement. The Seller and Licensee have not agreed to amend or waive any provision of the License Agreement, and there is no current proposal to do so.
(e) To the knowledge of the Seller, no event has occurred that would give the Seller or Licensee the right to terminate the License Agreement or cease paying Royalties or any other amounts thereunder. The Seller has not received any notice of an intention by Licensee to terminate or breach the License Agreement, in whole or in part, or challenging the validity or enforceability of the License Agreement or the obligation to pay the Royalties or any other amounts under the License Agreement, or that the Seller or Licensee is in default of its obligations under the License Agreement. To the knowledge of the Seller, there is no default, violation or breach by Licensee under or of the License Agreement. The Seller has not given Licensee any notice of termination of the License Agreement, in whole or in part.
(f) Except as provided in the License Agreement, the Seller is not a party to any agreement providing for or permitting a sharing of, or Set-off or deduction against, the Royalties or any other amounts payable under the License Agreement to the Seller. Confidential Treatment has been requested for portions of this exhibit. The copy filed herewith omits the information subject to the confidentiality request. Omissions are designated as “****”. A complete version of this exhibit has been filed separately with the Securities full force and Exchange Commissioneffect.
(g) The Seller has not consented not:
(i) forgiven, released, delayed, postponed or compromised any right to an assignment by Licensee receive payment in respect the Royalty Interest;
(ii) waived, amended, cancelled or terminated, exercised or to the Knowledge of any of Licensee’s rights or obligations under the License Agreement, and the Seller is not aware of failed to exercise, any such assignment by Licensee. To the knowledge of the Seller, Licensee has not granted any sublicense under the Intellectual Property Rights to any Third Party. Except as contemplated by Section 2.1(a) and Section 2.1(d), the Seller has not assigned, in whole material rights constituting or in part, and has not granted, incurred or suffered to exist any Liens on the License Agreement, the Purchased Assets or any of the Seller’s right, title or interest in and relating to the Opiant Technology Assigned Rights or under any agreement (other than, in the case of the Opiant Technology, including the License Agreement).;
(hiii) Neither the Seller nor Licensee has made except as set forth in Exhibit A, amended, modified, restated, cancelled, supplemented, terminated or waived any claim of indemnification under the License Agreement.
(i) The Seller has not exercised its rights to conduct an audit under the License Agreement.
(j) To the knowledge of the Seller, the Seller has received all amounts owed to it under the License Agreement. The Seller has received (A) each payment pursuant to Section 5.1 of the License Agreement and each payment that was due prior to the date hereof pursuant to Section 5.4 of the License Agreement and (B) each applicable milestone payment pursuant to Sections 5.2.1 and 5.2.2 of the License Agreement. No payments under Sections 5.2.3, 5.2.4, 5.2.5, 5.2.6 or 5.3 of the License Agreement have become payable or have been paid as of the date hereof. No payments under Section 5.4.2 of the License Agreement shall be due and payable from and after the date hereof.
(k) Licensee has not provided the Seller with any notice or document pursuant to Sections 3.3.1(b), 4.3.1, 5.5, 11.1 or 11.6 provision of the License Agreement, and or granted any consent thereunder, or agreed to do any of the foregoing;
(iv) exercised any right of rescission, offset, counterclaim or defense, upon or with respect to the Assigned Rights or the Collateral, or agreed to do or suffer to exist any of the foregoing;
(v) sold, leased, pledged, licensed, transferred or assigned (or, except with respect to the bidding process conducted by Seller has not provided Licensee with resulting in this Agreement, attempted to do any notice pursuant to Sections 4.3.3, 11.1 of the foregoing) all or 11.6 any portion of the Assigned Rights and/or the License Agreement. The Seller has reached , except in favor of Buyer pursuant to the Lightlake Cost Cap described in Section 3.8.1 of the License Agreement.Transaction Documents; or
(lvi) Except as set forth on Schedule 3.6, no Generic Competition for Narcan® or Third Party Royalty in respect of Narcan® has occurred as of the date hereof and, to the knowledge of the Seller as of the date hereof, no Third Party has developed or is developing a Generic Product. To the knowledge of the Seller, no Product other than Narcan®, and no product containing any Product in combination with another active ingredient, has been or is being developed by Licensee or the Seller. The Seller has not received any communication indicating advance payments on the Royalty Interest; it being understood for the avoidance of ambiguity that Licensee has made any determination or election pursuant due and owing milestone payments which have been paid to clause (i) or (ii) of Section 5.5 of the License Agreement.
(m) Except as set forth on Schedule 3.13(m), all of the representations and warranties of Seller in under the License Agreement remain true and correct as if made do not constitute advance payments on the date hereof, except for the effects of the transactions set forth in the License Agreement. Confidential Treatment has been requested for portions of this exhibit. The copy filed herewith omits the information subject to the confidentiality request. Omissions are designated as “****”. A complete version of this exhibit has been filed separately with the Securities and Exchange CommissionRoyalty Interest.
Appears in 1 contract
Samples: Royalty Interest Acquisition Agreement (Supernus Pharmaceuticals Inc)
License Agreement. (a) Attached hereto as Exhibit G are true, correct, and complete copies of the License Agreement and all Royalty Reports received by Seller from UT as of the date hereof.
(b) Other than the Transaction Documents and except as set forth in Section 3.10(b) of the License AgreementDisclosure Schedules, there is no contract, agreement or other arrangement (whether written or oral) to which between Seller, on the Seller or any of its Subsidiaries is one hand, and a party or by which any of their respective assets or properties is bound or committed (i) Third Party, on the other hand, that creates a Lien on, affects or otherwise relates in any material respect to on the Purchased Assets, the License Agreement or the Opiant TechnologyRoyalty Interests, or (ii) for which breach, nonperformance, cancellation or failure to renew would reasonably be expected to result in a Material Adverse Change. To the knowledge of Seller, as of the Closing Date there are no Product Agreements other than the License Agreement. Except for the License Amendment, the License Agreement has not been amended or modified. Confidential Treatment has been requested for portions of this exhibit. The copy filed herewith omits the information subject to the confidentiality request. Omissions are designated as “****”. A complete version of this exhibit has been filed separately with the Securities and Exchange Commission.
(b) The Seller has provided to the Purchaser true, correct and complete copies of (i) the License Agreement, (ii) all royalty reports delivered to the Seller by Licensee pursuant to Supply Agreement or the License Agreement and (iii) all material notices and correspondence delivered to, or by, the Seller pursuant to, or relating to, the License Agreement since December 15, 2014MannKind Patents.
(c) The License Agreement is in full force and effect and is the legal, valid valid, and binding obligation of the Seller andand UT, to the knowledge of the Seller, Licensee, and is enforceable against the Seller andand UT, to the knowledge of the Seller, Licensee in accordance with its terms, subject, except as to enforcement may be limited by general principles of remedies, to equity (regardless of whether considered in a proceeding at law or in equity) and by applicable bankruptcy, insolvency, reorganization, moratorium and other similar Laws of general application relating to or similar laws affecting creditors’ rights generally, general equitable principles and principles . Seller has not received any written notice from or on behalf of public policy. The execution and delivery of, and performance of obligations under, UT challenging or threatening to challenge the License Agreement were and are within the powers of the Seller and, to the knowledge of the Seller, Licensee. The License Agreement was duly authorized by all necessary action on the part of, and validly executed and delivered by, the Seller and, to the knowledge of the Seller, Licensee. The Seller is not in breach validity or violation of or in default under the License Agreement which would reasonably be expected to result in a Material Adverse Change. There is no event or circumstance that, upon notice or the passage of time, or both, could reasonably be expected to constitute or give rise to any breach or default in the performance enforceability of the License Agreement by or any obligation of UT thereunder, including any obligation to pay the Royalty Interests or any other payment thereunder, or to terminate the License Agreement or alleging that Seller or, to is in default of any of its obligations under the knowledge of the Seller, LicenseeLicense Agreement.
(d) The Seller has not waived breached, and is not in violation or default under, any rights of its obligations in the License Agreement. To the Knowledge of Seller, UT has not breached, and is not in violation or defaults default under, any of its obligations in the License Agreement.
(e) Other than the UT Consent, Seller has not granted or been granted any written waiver under the License Agreement or released LicenseeUT, in whole or in part, from any of its obligations under the License Agreement. The Other than the UT Consent, there are no modifications (or pending requests therefor) in respect of the License Agreement. Other than the UT Consent, Seller has not received from UT any proposal, and Licensee have has not agreed made any proposal to UT, to amend or waive any provision of the License Agreement, and there is no current proposal to do so.
(ef) To the knowledge Knowledge of the Seller, no event has occurred that, upon notice or the passage of time or both, would reasonably be expected to give rise to a breach of any of the obligations of Seller or UT under the License Agreement, or, to the Knowledge of Seller, that would otherwise give the Seller or Licensee such party the right to terminate the License Agreement or give UT the right to cease paying Royalties or any other amounts the Royalty Interests thereunder. The Seller has not received any notice of an intention by Licensee to terminate or breach the License Agreement, in whole or in part, or challenging the validity or enforceability of the License Agreement or the obligation to pay the Royalties or any other amounts under the License Agreement, or that the Seller or Licensee is in default of its obligations under the License Agreement. To the knowledge of the Seller, there is no default, violation or breach by Licensee under or of the License Agreement. The Seller has not given Licensee UT any notice of termination of the License Agreement, in whole or in part.
(fg) Except as provided in Neither Seller nor, to the License AgreementKnowledge of Seller, the Seller is not a party to any agreement providing for or permitting a sharing ofUT, has sublicensed, assigned, sold, or Set-off or deduction against, the Royalties or any other amounts payable under transferred the License Agreement or any of its rights, interests, or obligations thereunder (including with respect to the Seller. Confidential Treatment has been requested for portions of this exhibit. The copy filed herewith omits the information subject Royalty Interests) to the confidentiality request. Omissions are designated as “****”. A complete version of this exhibit has been filed separately with the Securities any Person, and Exchange Commission.
(g) The Seller has not consented to an assignment by Licensee of any of Licensee’s rights or obligations under the License Agreement, and the Seller is not aware of any such assignment sublicense, assignment, sale or transfer by Licensee. To the knowledge of the Seller, Licensee has not granted any sublicense under the Intellectual Property Rights to any Third PartyUT. Except as contemplated by Section 2.1(a) and Section 2.1(d)the Transaction Documents, the Seller has not encumbered, assigned, sold or transferred, in whole or in part, and has not granted, incurred or suffered to exist any Liens on the License Agreement, the Purchased Assets or any of the Seller’s right, title title, or interest in and or to the Opiant Technology (other than, in the case of the Opiant Technology, the License Agreement).
(h) Neither the Seller nor Licensee has made any claim of indemnification Royalty Interests under the License Agreement.
(ih) The UT has not exercised the Option under Section 2.6 of the License Agreement. Seller has not exercised its rights to conduct an audit under Section 7.6 of the License Agreement.
(i) Neither Seller nor any of its Affiliates has developed, manufactured, commercialized, or authorized any third party to develop, manufacture or commercialize a Competing Product in violation of Section 2.5(a) of the License Agreement. To the Knowledge of Seller, neither UT nor any of its Affiliates has developed, manufactured, commercialized or authorized any Third Party to develop, manufacture or commercialize any product (other than Product) containing or comprising any dry powder formulation of API that is or is intended to be primarily administered in or through the lungs.
(j) To the knowledge of the Seller, the Seller has received all amounts indicated on Royalty Reports received to date as being owed to it Seller under Section 6.3 of the License Agreement, to the extent such amounts have come due. The To the Knowledge of Seller, the amounts indicated on such Royalty Reports as payable to Seller has received (A) each payment pursuant to under Section 5.1 6.3 of the License Agreement and each payment that was due prior to are accurate for the date hereof pursuant to Section 5.4 of the License Agreement and (B) each applicable milestone payment pursuant to Sections 5.2.1 and 5.2.2 of the License Agreement. No payments under Sections 5.2.3, 5.2.4, 5.2.5, 5.2.6 or 5.3 of the License Agreement have become payable or have been paid as of the date hereof. No payments under Section 5.4.2 of the License Agreement shall be due and payable from and after the date hereofperiods covered by such Royalty Reports.
(k) Licensee has not provided the Seller with any notice or document pursuant to Sections 3.3.1(b), 4.3.1, 5.5, 11.1 or 11.6 of the License Agreement, and the Seller has not provided Licensee with sent or received any written notice of any dispute to or from UT for resolution pursuant to Sections 4.3.3, 11.1 or 11.6 of the License Agreement. The Seller has reached the Lightlake Cost Cap described in Section 3.8.1 Article 14 of the License Agreement.
(l) Except as set forth on Schedule 3.6, There are no Generic Competition for Narcan® or Third Party Royalty in respect of Narcan® has occurred as of the date hereof andagreements between Seller or, to the knowledge Knowledge of Seller, UT, and any Third Party (including UT) that would give rise to a right of UT to reduce any payment under Section 6.3 of the Seller as of the date hereof, no Third Party has developed or is developing a Generic Product. To the knowledge of the Seller, no Product other than Narcan®, and no product containing any Product in combination with another active ingredient, has been or is being developed by Licensee or the Seller. The Seller has not received any communication indicating that Licensee has made any determination or election License Agreement pursuant to clause (iSection 6.3(b) or (ii) of Section 5.5 of the License Agreement, and to the Knowledge of Seller, there are no ongoing discussions related to any such agreements.
(m) Except as set forth on Schedule 3.13(m), all The Royalty Product is a Product.
(n) Neither Seller nor UT has made any claim of the representations and warranties of Seller in indemnification under the License Agreement remain true and correct as if made on or the date hereof, except for the effects Supply Agreement.
(o) The agreement listed in Section 3.10(o) of the transactions set forth in the License Agreement. Confidential Treatment has been requested for portions of this exhibit. The copy filed herewith omits the information subject Disclosure Schedules does not contain terms or provisions related to the confidentiality requesttiming, amount or duration of the Purchased Assets or any of the Specified Rights. Omissions are designated as “****”. A complete version Seller’s and UT’s continued performance of this exhibit has been filed separately with their respective obligations under each of the Securities Ancillary Agreements, and Exchange Commissionthe agreement listed in Section 3.10(o) of the Disclosure Schedules would not reasonably be expected to have an adverse effect on (A) the timing, amount or duration of the Purchased Assets or (B) the Specified Rights or otherwise reasonably be expected to result in a Material Adverse Effect.
Appears in 1 contract
License Agreement. (a) Other than the Transaction Documents License Agreement and the License AgreementAncillary Agreements, there is no contract, agreement or other arrangement (whether written or oral) to which the Seller Seller, Parent, or any of its their Subsidiaries is a party or by which any of their respective assets or properties is bound or committed (i) that creates a Lien on, affects or otherwise relates in any material respect to the Purchased Assets, the License Agreement or the Opiant Technology, or (ii) for which breach, nonperformance, cancellation or failure to renew would could reasonably be expected to result have an adverse effect on the timing, amount, duration or value in a Material Adverse Change. To the knowledge of Seller, as any material respect of the Closing Date there are no Product Agreements other than the License Agreement. Except for the License Amendment, the License Agreement has not been amended payments to be made to Purchasers in respect of their respective Purchased Interests or modified. Confidential Treatment has been requested for portions of this exhibit. The copy filed herewith omits the information subject their right to the confidentiality request. Omissions are designated as “****”. A complete version of this exhibit has been filed separately with the Securities and Exchange Commissionreceive such payments.
(b) The Concurrent with the closing of the transactions contemplated by this Agreement, Parent and Seller has have provided to the Purchaser Directors with a true, correct and complete copies copy of (i) the License Agreement, (ii) all royalty reports delivered to the Seller by Licensee pursuant to the License Agreement and Supply Agreement and (iiiii) all material notices and correspondence correspondences delivered to, or by, the Seller or Parent pursuant to, or relating to, the Purchased Interests, the License Agreement or the Ancillary Agreements since December 1511, 20142017.
(c) The Each of the License Agreement and the Ancillary Agreements is in full force and effect and is the legal, valid and binding obligation of Parent, Almirall and Almirall LLC, enforceable against each of them in accordance with its terms, subject, as to enforcement of remedies, to bankruptcy, insolvency, reorganization, moratorium or similar Applicable Laws affecting creditors' rights generally and general equitable principles, and immediately following the Seller Closing, each of the License Agreement and the Ancillary Agreements will continue in full force and effect, without modification (except for any modification of the License Agreement provided for in the Almirall Instruction), and each is, and immediately after the Closing, shall remain, the legal, valid and binding obligation of Parent and, to the knowledge Knowledge of the SellerSeller and Parent, LicenseeAlmirall and Almirall LLC, enforceable against the Seller Parent and, to the knowledge Knowledge of the SellerSeller and Parent, Licensee Almirall and Almirall LLC, in accordance with its respective terms, subject, as to enforcement of remedies, to bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’ rights generally, the UCC, and general equitable principles and principles of public policyprinciples. The execution and execution, delivery of, and performance of obligations under, the License Agreement were and are the Ancillary Agreements was and is within the corporate powers of the Seller Parent and, to the knowledge Knowledge of the Seller, LicenseeAlmirall and Almirall LLC. The License Agreement and each of the Ancillary Agreements was duly authorized by all necessary action on the part of, and validly executed and delivered by, the Seller Parent and, to the knowledge Knowledge of the SellerSeller and Parent, Licensee. The Seller is not in breach or violation of or in default under the License Agreement which would reasonably be expected to result in a Material Adverse ChangeAlmirall and Almirall LLC. There is no breach or default, or event or circumstance that, which upon notice or the passage of time, or both, could reasonably would be expected to constitute or give rise to any breach or default default, in the performance of the License Agreement or the Ancillary Agreements by the Seller orParent, and, to the knowledge Knowledge of Seller and Parent, there is no breach or default, or event which upon notice or the passage of time, or both, reasonably would be expected to give rise to any breach or default, in the performance of the Seller, LicenseeLicense Agreement or any of the Ancillary Agreements by Almirall or Almirall LLC.
(d) The Seller has and Parent have not waived any rights or defaults under the License Agreement or any Ancillary Agreement or released LicenseeAlmirall or Almirall LLC, in whole or in part, from any of its Parent’s obligations under the License Agreement or any Ancillary Agreement. The Seller and Licensee have not There are no oral waivers or modifications (or pending requests therefor) in respect of the License Agreement or any Ancillary Agreement. Neither Seller, Parent, Almirall nor Almirall LLC has agreed to amend or waive any provision of the License Agreement or any Ancillary Agreement, and there is no current proposal to do so.
(e) To the knowledge Knowledge of the Parent and Seller, no event has occurred that would give the Seller Almirall or Licensee Almirall LLC the right to terminate the License Agreement or any Ancillary Agreement, cease paying Royalties or Milestone Interests under the License Agreement or take any Impermissible Set-off or other amounts thereunderSet-off against Royalties or Milestone Interests under the License Agreement. The Neither Seller nor Parent has not received any notice of an intention by Licensee from Almirall or Almirall LLC (i) asserting that Almirall or Almirall LLC intends to terminate or breach the License Agreement or any Ancillary Agreement, in whole or in part, (ii) asserting that Almirall or challenging Almirall LLC intends to challenge the validity or enforceability of the License Agreement or any Ancillary Agreement or the obligation to pay any portion of the Royalties or Milestone Interests under the License Agreement, (iii) asserting that Almirall or Almirall LLC intends to take any Impermissible Set-off or other amounts Set-off against Royalties or Milestone Interests under the License Agreement, or (iv) alleging that the Seller Parent, Almirall or Licensee Almirall LLC is in default of its obligations under the License Agreement or any Ancillary Agreement. To the knowledge Knowledge of the SellerSeller and Parent, there is has been no default, violation or breach by Licensee Almirall or Almirall LLC under the - 48 - License Agreement or any Ancillary Agreement. Neither Seller nor Parent has any intention of terminating the License Agreement. The Agreement or any Ancillary Agreement and neither Seller nor Parent has not given Licensee Almirall or Almirall LLC any notice of termination of the License Agreement or any Ancillary Agreement, in whole or in part.
(f) Except as provided in the License Agreement, the Neither Seller is not a party nor Parent has received any written notice from Almirall or Almirall LLC indicating that Almirall or Almirall LLC has entered into any sublicense pursuant to any agreement providing for or permitting a sharing of, or Set-off or deduction against, the Royalties or any other amounts payable under Section 2.2(b) of the License Agreement and, to the Seller. Confidential Treatment Knowledge of Seller and Parent, neither Almirall nor Almirall LLC has been requested for portions of this exhibit. The copy filed herewith omits the information subject to the confidentiality request. Omissions are designated as “****”. A complete version of this exhibit has been filed separately with the Securities and Exchange Commissionentered into any such sublicense.
(g) The Neither Seller nor Parent has not consented to an assignment by Licensee Almirall or Almirall LLC of any of LicenseeAlmirall’ s or Almirall LLC’s rights or obligations under the License Agreement or any Ancillary Agreement, and to the Knowledge of Seller is not aware of any and Parent, no such assignment by Licensee. To the knowledge of the Seller, Licensee Almirall or Almirall LLC has not granted any sublicense under the Intellectual Property Rights to any Third Partybeen made. Except as contemplated by Section 2.1(a) and Section 2.1(d)provided in the Oaktree Credit Agreement, the neither Seller nor Parent has not assigned, in whole or in part, and has not or granted, incurred or suffered to exist any Liens Lien on the License Agreement, any Ancillary Agreement or the Purchased Assets or any of the Seller’s right, title or interest in and to the Opiant Technology (other than, in the case of the Opiant Technology, the License Agreement)Interests.
(h) Neither the Seller nor Licensee None of Seller, Parent, Almirall, Almirall LLC or any other Person has made any claim of indemnification under the License AgreementAgreement or the Ancillary Agreements.
(i) The Neither Seller nor Parent has not exercised its rights to conduct an audit under the License Agreement.
(j) To Neither Seller nor Parent has received any notice from Almirall or Almirall LLC advising Seller or Parent that the knowledge obligation of Almirall and Almirall LLC to pay Royalties in a particular country in the Territory could end before the expiration of the Sellerlast to expire Valid Claim of the Athenex Patent Rights in such country covering the Licensed Products (or the use or manufacture thereof).
(k) As of the Effective Date and Closing Date, the Seller as applicable, no proof of concept Phase II Clinical Study has received all amounts owed to it been completed or proposed under the License Agreement. The Seller has received (A) each payment pursuant Pursuant to Section 5.1 4.3 of the License Agreement and each payment that was due prior (after giving effect to the date hereof footnote to Milestone #5 under License Agreement and Milestone #6 under License Agreement), with respect to each of Milestone #5 under License Agreement and Milestone #6 under License Agreement, Seller would be entitled to receive (i) [*] percent ([*]%) of such milestone if the Licensed Product is approved in an Additional Indication (Milestone #5 under License Agreement) or a second Additional Indication (Milestone #6 under License Agreement) and either (A) a proof of concept Phase II Clinical Study is not performed with respect to such Additional Indication, or (B) a proof of concept Phase II Clinical Study is performed with respect to such Additional Indication, but such Phase II Clinical Study is performed by Almirall and/or Almirall LLC at Almirall or Almirall LLC’s entire cost, or (C) a proof of concept Phase II Clinical Study is performed with respect to such Additional Indication, but such Phase II Clinical Study is performed by Seller (and/or Parent) at Seller’s (and Parent’s) entire cost, and (ii) [*] percent ([*]%) of such milestone if a proof of concept Phase II Clinical Study with respect to such Additional Indication is performed by Seller (and/or Parent), but Almirall and/or Almirall LLC elected to fund all out of pocket expenses incurred by Seller (and Parent) in conducting such Phase II Clinical Study. Pursuant to Section 4.3 of the License - 49 - Agreement, Seller is entitled to receive the full amount of Milestone #5 under License Agreement and Milestone #6 under License Agreement if the Licensed Product is approved in two Additional Indications in the U.S. and Almirall and/or Almirall LLC conducts Phase II Clinical Studies with respect to such Additional Indications at Almirall’s and Almirall LLC’s sole cost and expense. Almirall’s and Almirall LLC’s right to reduce Milestone #5 under License Agreement and Milestone #6 under License Agreement only applies where Seller performs the proof of concept Phase II Clinical Study with respect to such Additional Indications but Almirall and/or Almirall LLC elects to fund all out of pocket expenses incurred by Seller in conducting such Phase II Clinical Studies.
(l) Neither Parent nor any of its Affiliates has developed or is developing any New Product and Parent has not offered, and has no plans to offer, to Almirall or Almirall LLC to enter into any New Product Transaction pursuant to Section 5.4 of the License Agreement and (B5.2(aa) each applicable milestone payment pursuant to Sections 5.2.1 and 5.2.2 of the License Agreement. No payments under Sections 5.2.3, 5.2.4, 5.2.5, 5.2.6 or 5.3 of the License Agreement have become payable or have been paid as of the date hereof. No payments under Section 5.4.2 of the License Agreement shall be due and payable from and after the date hereof.
(k) Licensee Parent has not provided the Seller with any notice Negotiation Notice to Almirall or document pursuant to Sections 3.3.1(b), 4.3.1, 5.5, 11.1 or 11.6 of the License Agreement, and the Seller has not provided Licensee with any notice pursuant to Sections 4.3.3, 11.1 or 11.6 of the License Agreement. The Seller has reached the Lightlake Cost Cap described in Almirall LLC under Section 3.8.1 5.2(aa) of the License Agreement.
(l) Except as set forth on Schedule 3.6, no Generic Competition for Narcan® or Third Party Royalty in respect of Narcan® has occurred as of the date hereof and, to the knowledge of the Seller as of the date hereof, no Third Party has developed or is developing a Generic Product. To the knowledge of the Seller, no Product other than Narcan®, and no product containing any Product in combination with another active ingredient, has been or is being developed by Licensee or the Seller. The Seller has not received any communication indicating that Licensee has made any determination or election pursuant to clause (i) or (ii) of Section 5.5 of the License Agreement.
(m) Except as set forth on Schedule 3.13(m), all of the representations and warranties of Seller in the License Agreement remain true and correct as if made on the date hereof, except for the effects of the transactions set forth in the License Agreement. Confidential Treatment has been requested for portions of this exhibit. The copy filed herewith omits the information subject to the confidentiality request. Omissions are designated as “****”. A complete version of this exhibit has been filed separately with the Securities and Exchange Commission.
Appears in 1 contract
Samples: Revenue Interest Purchase Agreement (Athenex, Inc.)
License Agreement. (a) Other than the Transaction Documents and the License Agreement, there is no contract, agreement or other arrangement (whether written or oral) to which the Seller or any of its Subsidiaries is a party or by which any of their respective assets or properties is bound or committed (i) that creates a Lien on, affects or otherwise relates in any material respect to the Purchased Assets, the License Agreement or the Opiant Technology, or (ii) for which breach, nonperformance, cancellation or failure to renew would reasonably be expected to result in a Material Adverse Change. To the knowledge of Seller, as of the Closing Date there are no Product Agreements other than the License Agreement. Except for the License Amendment, the License Agreement has not been amended or modified. Confidential Treatment has been requested for portions of this exhibit. The copy filed herewith omits the information subject to the confidentiality request. Omissions are designated as “****”. A complete version of this exhibit has been filed separately with the Securities and Exchange Commission.
(b) The Seller has provided to the Purchaser true, correct and complete copies of (i) the License Agreement, (ii) all royalty reports delivered to the Seller by Licensee pursuant to the License Agreement and (iii) all material notices and correspondence delivered to, or by, the Seller pursuant to, or relating to, the License Agreement since December 15, 2014.
(c) The License Agreement is in full force and effect and is the legal, valid and binding obligation of the Seller and, to the knowledge of the Seller, Licensee, enforceable against the Seller and, to the knowledge of the Seller, Licensee in accordance with its terms, subject, as to enforcement of remedies, to bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’ rights generally, general equitable principles and principles of public policy. The execution and delivery of, and performance of obligations under, the License Agreement were and are within the powers of the Seller and, to the knowledge of the Seller, Licensee. The License Agreement was duly authorized by all necessary action on the part of, and validly executed and delivered by, the Seller and, to the knowledge of the Seller, Licensee. The Seller is not in breach or violation of or in default under the License Agreement which would reasonably be expected to result in a Material Adverse Change. There is no event or circumstance that, upon notice or the passage of time, or both, could reasonably be expected to constitute or give rise to any breach or default in the performance of the License Agreement by the Seller or, to the knowledge of the Seller, Licensee.
(d) The Seller has not waived any rights or defaults under the License Agreement or released Licensee, in whole or in part, from any of its obligations under the License Agreement. The Seller and Licensee have not agreed to amend or waive any provision of the License Agreement, and there is no current proposal to do so.
(e) To the knowledge of the Seller, no event has occurred that would give the Seller or Licensee the right to terminate the License Agreement or cease paying Royalties or any other amounts thereunder. The Seller has not received any notice of an intention by Licensee to terminate or breach the License Agreement, in whole or in part, or challenging the validity or enforceability of the License Agreement or the obligation to pay the Royalties or any other amounts under the License Agreement, or that the Seller or Licensee is in default of its obligations under the License Agreement. To the knowledge of the Seller, there is no default, violation or breach by Licensee under or of the License Agreement. The Seller has not given Licensee any notice of termination of the License Agreement, in whole or in part.
(f) Except as provided in the License Agreement, the Seller is not a party to any agreement providing for or permitting a sharing of, or Set-off or deduction against, the Royalties or any other amounts payable under the License Agreement to the Seller. Confidential Treatment has been requested for portions of this exhibit. The copy filed herewith omits the information subject to the confidentiality request. Omissions are designated as “****”. A complete version of this exhibit has been filed separately with the Securities and Exchange Commission.
(g) The Seller has not consented to an assignment by Licensee of any of Licensee’s rights or obligations under the License Agreement, and the Seller is not aware of any such assignment by Licensee. To the knowledge of the Seller, Licensee has not granted any sublicense under the Intellectual Property Rights to any Third Party. Except as contemplated by Section 2.1(a) and Section 2.1(d), the Seller has not assigned, in whole or in part, and has not granted, incurred or suffered to exist any Liens on the License Agreement, the Purchased Assets or any of the Seller’s right, title or interest in and to the Opiant Technology (other than, in the case of the Opiant Technology, the License Agreement).
(h) Neither the Seller nor Licensee has made any claim of indemnification under the License Agreement.
(i) The Seller has not exercised its rights to conduct an audit under the License Agreement.
(j) To the knowledge of the Seller, the Seller has received all amounts owed to it under the License Agreement. The Seller has received (A) each payment pursuant to Section 5.1 of the License Agreement and each payment that was due prior to the date hereof pursuant to Section 5.4 of the License Agreement and (B) each applicable milestone payment pursuant to Sections 5.2.1 and 5.2.2 of the License Agreement. No payments under Sections 5.2.3, 5.2.4, 5.2.5, 5.2.6 or 5.3 of the License Agreement have become payable or have been paid as of the date hereof. No payments under Section 5.4.2 of the License Agreement shall be due and payable from and after the date hereof.
(k) Licensee has not provided the Seller with any notice or document pursuant to Sections 3.3.1(b), 4.3.1, 5.5, 11.1 or 11.6 of the License Agreement, and the Seller has not provided Licensee with any notice pursuant to Sections 4.3.3, 11.1 or 11.6 of the License Agreement. The Seller has reached the Lightlake Cost Cap described in Section 3.8.1 of the License Agreement.
(l) Except as set forth on Schedule 3.6, no Generic Competition for Narcan® or Third Party Royalty in respect of Narcan® has occurred as of the date hereof and, to the knowledge of the Seller as of the date hereof, no Third Party has developed or is developing a Generic Product. To the knowledge of the Seller, no Product other than Narcan®, and no product containing any Product in combination with another active ingredient, has been or is being developed by Licensee or the Seller. The Seller has not received any communication indicating that Licensee has made any determination or election pursuant to clause (i) or (ii) of Section 5.5 of the License Agreement.
(m) Except as set forth on Schedule 3.13(m), all of the representations and warranties of Seller in the License Agreement remain true and correct as if made on the date hereof, except for the effects of the transactions set forth in the License Agreement. Confidential Treatment has been requested for portions of this exhibit. The copy filed herewith omits the information subject to the confidentiality request. Omissions are designated as “****”. A complete version of this exhibit has been filed separately with the Securities and Exchange Commission.
Appears in 1 contract
License Agreement. (a) Other than the Transaction Documents License Agreement and the License AgreementTransaction Documents, there is no contract, agreement or other arrangement (whether written or oral) to which the Seller either Enzon or any of its Subsidiaries is a party or by which any of their Enzon’s or its Subsidiaries’ respective assets or properties is are bound or committed (i) that which creates a Lien on, affects or otherwise relates in any material respect to the Purchased AssetsInterest, the License Agreement Agreement, Royalties or the Opiant TechnologyPatent Rights, or (ii) for which breach, nonperformance, cancellation or failure to renew would could reasonably be expected to result in a Material Adverse Change. To the knowledge of Seller, as of the Closing Date there are no Product Agreements other than the License Agreement. Except for the License Amendment, the License Agreement has not been amended or modified. Confidential Treatment has been requested for portions of this exhibit. The copy filed herewith omits the information subject to the confidentiality request. Omissions are designated as “****”. A complete version of this exhibit has been filed separately with the Securities and Exchange CommissionEffect.
(b) The Seller Enzon has provided to the Purchaser truean accurate, correct complete and complete copies updated copy of (i) the License Agreement, (ii) all royalty reports delivered to provided that only those parts of the Seller by Licensee pursuant schedules to the License Agreement that contain the specifications of, and (iii) all material notices and correspondence delivered to, or bydevelopment plans for, the Seller pursuant to, or relating to, Product have been redacted from the copy of the License Agreement since December 15, 2014provided by Enzon to the Purchaser and such redacted portions of such schedules do not in any respect modify or supplement the unredacted provisions of the License Agreement in a manner that adversely affects the Purchaser’s rights and obligations under the Transaction Documents.
(c) The License Agreement is in full force and effect and is the legal, valid and binding obligation of the Seller each of Enzon and, to the knowledge Knowledge of the SellerEnzon, LicenseeSchering, enforceable against the Seller Enzon and, to the knowledge Knowledge of the SellerEnzon, Licensee Schering in accordance with its terms, subject, as to enforcement of remedies, to bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’ rights generally, generally and general equitable principles and principles of public policyprinciples. The execution and execution, delivery of, and performance of obligations under, the License Agreement were was and are is within the corporate powers of the Seller Enzon and, to the knowledge Knowledge of the SellerEnzon, LicenseeSchering. The License Agreement was duly authorized by all necessary action on the part of, and validly executed and delivered by, the Seller by Enzon and, to the knowledge Knowledge of the SellerEnzon, Licensee. The Seller is not in breach or violation of or in default under the License Agreement which would reasonably be expected to result in a Material Adverse ChangeSchering. There is no breach or default, or event or circumstance that, which upon notice or the passage of time, or both, could reasonably be expected to constitute or give rise to any breach or default default, in the performance of the License Agreement by the Seller Enzon or, to the knowledge Knowledge of the SellerEnzon, LicenseeSchering.
(d) The Seller Enzon has not waived any rights or defaults under the License Agreement or released LicenseeAgreement, in whole or in part, from any of its that adversely affects the Purchaser’s rights and obligations under the License Agreement. The Seller and Licensee have not agreed to amend or waive any provision of the License Agreement, and there is no current proposal to do soTransaction Documents.
(e) To the knowledge of the Seller, no event has occurred that would give the Seller or Licensee the right to terminate the License Agreement or cease paying Royalties or any other amounts thereunder. The Seller Enzon has not received any notice of an Schering’s intention by Licensee to terminate or breach the License Agreement, Agreement in whole or in part, or challenging the validity or enforceability of the License Agreement or the obligation to pay the Royalties or any other amounts under the License Agreement, or that the Seller or Licensee Enzon is in default of its obligations under the License Agreement. To the knowledge Enzon has no intention of the Seller, there is no default, violation or breach by Licensee under or of terminating the License Agreement. The Seller has not given Licensee any notice of termination of the License Agreement, in whole or in part.
(f) Except as provided in the License Agreement, the Seller Enzon is not a party to any agreement providing for or permitting a sharing of, reduction in, or Setset-off or deduction against, the Royalties or any other amounts payable under the License Agreement to the Seller. Confidential Treatment has been requested for portions of this exhibit. The copy filed herewith omits the information subject to the confidentiality request. Omissions are designated as “****”. A complete version of this exhibit has been filed separately with the Securities and Exchange CommissionEnzon.
(g) The Seller has sale by Enzon of the Purchased Interest to the Purchaser will not consented to an assignment by Licensee require the consent of any of Licensee’s rights or obligations Schering under the License Agreement, Agreement and the Seller is will not aware constitute a breach of any such assignment by Licensee. To the knowledge or event of the Seller, Licensee has not granted any sublicense under the Intellectual Property Rights to any Third Party. Except as contemplated by Section 2.1(a) and Section 2.1(d), the Seller has not assigned, in whole or in part, and has not granted, incurred or suffered to exist any Liens on the License Agreement, the Purchased Assets or any of the Seller’s right, title or interest in and to the Opiant Technology (other than, in the case of the Opiant Technology, the License Agreement).
(h) Neither the Seller nor Licensee has made any claim of indemnification default under the License Agreement.
(i) The Seller has not exercised its rights to conduct an audit under the License Agreement.
(jh) To the knowledge Knowledge of the SellerEnzon, the Seller has received all amounts owed license agreement between Schering and Research Corporation referred to it under the License Agreement. The Seller has received (Ain Section 7.1(a) each payment pursuant to Section 5.1 of the License Agreement is no longer in effect and each payment that was due prior to the date hereof pursuant to Section 5.4 of the License Agreement and (B) each applicable milestone payment pursuant to Sections 5.2.1 and 5.2.2 of the License Agreement. No payments under Sections 5.2.3no amounts are due, 5.2.4, 5.2.5, 5.2.6 or 5.3 of the License Agreement have become payable or have been paid as of the date hereof. No payments outstanding by Schering under Section 5.4.2 of the License Agreement shall be due and payable from and after the date hereofsuch license agreement.
(k) Licensee has not provided the Seller with any notice or document pursuant to Sections 3.3.1(b), 4.3.1, 5.5, 11.1 or 11.6 of the License Agreement, and the Seller has not provided Licensee with any notice pursuant to Sections 4.3.3, 11.1 or 11.6 of the License Agreement. The Seller has reached the Lightlake Cost Cap described in Section 3.8.1 of the License Agreement.
(l) Except as set forth on Schedule 3.6, no Generic Competition for Narcan® or Third Party Royalty in respect of Narcan® has occurred as of the date hereof and, to the knowledge of the Seller as of the date hereof, no Third Party has developed or is developing a Generic Product. To the knowledge of the Seller, no Product other than Narcan®, and no product containing any Product in combination with another active ingredient, has been or is being developed by Licensee or the Seller. The Seller has not received any communication indicating that Licensee has made any determination or election pursuant to clause (i) or (ii) of Section 5.5 of the License Agreement.
(m) Except as set forth on Schedule 3.13(m), all of the representations and warranties of Seller in the License Agreement remain true and correct as if made on the date hereof, except for the effects of the transactions set forth in the License Agreement. Confidential Treatment has been requested for portions of this exhibit. The copy filed herewith omits the information subject to the confidentiality request. Omissions are designated as “****”. A complete version of this exhibit has been filed separately with the Securities and Exchange Commission.
Appears in 1 contract
License Agreement. (a) Other than Unless otherwise agreed to in writing by the Transaction Documents and Parties, Assignor shall not, with respect to the License Agreement, there is no contract, agreement or other arrangement (whether written or oral) to which the Seller or any of its Subsidiaries is a party or by which any of their respective assets or properties is bound or committed Assigned Interests (i) that creates a Lien onforgive, affects release, or otherwise relates in compromise any material amount owed or to become owing with respect to the Purchased Assets, Assigned Interests on or after the License Agreement or the Opiant Technology, or (ii) for which breach, nonperformance, cancellation or failure to renew would reasonably be expected to result in a Material Adverse Change. To the knowledge of Seller, as of the Closing Date there are no Product Agreements other than the License Agreement. Except for the License Amendment, the License Agreement has not been amended or modified. Confidential Treatment has been requested for portions of this exhibit. The copy filed herewith omits the information subject to the confidentiality request. Omissions are designated as “****”. A complete version of this exhibit has been filed separately with the Securities and Exchange Commission.
(b) The Seller has provided to the Purchaser true, correct and complete copies of (i) the License AgreementEffective Date, (ii) all royalty reports delivered to the Seller by Licensee pursuant to the License Agreement and (iii) all material notices and correspondence delivered tomodify, waive, cancel or by, the Seller pursuant to, or relating to, the License Agreement since December 15, 2014.
(c) The License Agreement is in full force and effect and is the legal, valid and binding obligation otherwise relinquish any of the Seller and, to the knowledge of the Seller, Licensee, enforceable against the Seller and, to the knowledge of the Seller, Licensee in accordance with its terms, subject, as to enforcement of remedies, to bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’ rights generally, general equitable principles and principles of public policy. The execution and delivery of, and performance of obligations under, the License Agreement were and are within the powers of the Seller and, to the knowledge of the Seller, Licensee. The License Agreement was duly authorized by all necessary action on the part of, and validly executed and delivered by, the Seller and, to the knowledge of the Seller, Licensee. The Seller is not in breach or violation of or in default under the License Agreement which would reasonably be expected to result in a Material Adverse Change. There is no event or circumstance that, upon notice or the passage of time, or both, could reasonably be expected to constitute or give rise to any breach or default in the performance of the License Agreement by the Seller or, to the knowledge of the Seller, Licensee.
(d) The Seller has not waived any rights or defaults under the License Agreement or released Licensee, in whole or in part, from any of its obligations under the License Agreement. The Seller and Licensee have not agreed to amend or waive any provision of the License Agreement, and there is no current proposal to do so.
(e) To the knowledge of the Seller, no event has occurred that would give the Seller or Licensee the right to terminate the License Agreement or cease paying Royalties or any other amounts thereunder. The Seller has not received any notice of an intention by Licensee to terminate or breach the License Agreement, in whole or in part, or challenging the validity or enforceability of the License Agreement or the obligation to pay the Royalties or any other amounts Assigned Interests under the License Agreement, or (iii) amend, restate or novate either the License Agreement or the Quencher Agreement in a manner that could adversely affect, or diminish the Seller value of, the Assigned Interests.
(b) Upon becoming aware of any breach of the License Agreement arising with respect to the Assigned Interests, Assignor shall promptly notify Assignee in writing of such breach.
(c) While any obligations remain outstanding under this Agreement, Assignor will not terminate, modify, or Licensee is in default of subcontract or otherwise delegate its obligations under the License Agreement. To Agreement without the knowledge prior written consent of the Seller, there is no default, violation or breach by Licensee under or Assignee and will fulfill all of the License Agreement. The Seller has not given Licensee any notice of termination of the License Agreement, in whole or in part.
(f) Except as provided in the License Agreement, the Seller is not a party to any agreement providing for or permitting a sharing of, or Set-off or deduction against, the Royalties or any other amounts payable under the License Agreement to the Seller. Confidential Treatment has been requested for portions of this exhibit. The copy filed herewith omits the information subject to the confidentiality request. Omissions are designated as “****”. A complete version of this exhibit has been filed separately with the Securities and Exchange Commission.
(g) The Seller has not consented to an assignment by Licensee of any of Licensee’s rights or its supply obligations under the License Agreement, and the Seller is not aware of any such assignment by Licensee. To the knowledge of the Seller, Licensee has not granted any sublicense under the Intellectual Property Rights to any Third Party. Except as contemplated by Section 2.1(a) and Section 2.1(d), the Seller has not assigned, in whole or in part, and has not granted, incurred or suffered to exist any Liens on the License Agreement, the Purchased Assets or any of the Seller’s right, title or interest in and to the Opiant Technology (other than, in the case of the Opiant Technology, the License Agreement).
(h) Neither the Seller nor Licensee has made any claim of indemnification under the License Agreement.
(id) The Seller has not exercised its rights Assignor will promptly provide to conduct an audit the Assignee copies of all Reports delivered under the License Agreement to the extent the Reports relate to the Assigned Interests.
(e) Any royalty under any of the Patents payable to Assignor arising from the sale of any Product which is a licensed product covered by both the License Agreement and the Quencher Agreement shall be a Royalty subject to, and shall be paid to Assignee under, the terms of this Agreement.
(jf) To From time to time after the knowledge date hereof, Assignee may change its nominee for purposes of the SellerAuthorization, and upon request of Assignee, Assignor shall promptly execute and deliver to Assignee a new Authorization in respect of Assignee’s nominee as duly authorized agent.
(g) Epoch will not exercise its rights to inspect Licensee’s records relating to the Seller has received all amounts owed to it under the License Agreement. The Seller has received (A) each payment Assigned Interests pursuant to the audit rights under Section 5.1 5.10 of the License Agreement and each payment without the prior written consent of Assignee, which consent may be withheld in Assignee’s sole discretion.
(h) Assignee acknowledges that was due prior to the date hereof pursuant to Section 5.4 of the License Agreement and may be terminated by the Licensee (Bother than by reason of an act or omission of Epoch which caused such termination) each applicable milestone payment pursuant to Sections 5.2.1 and 5.2.2 of the License Agreement. No payments under Sections 5.2.3, 5.2.4, 5.2.5, 5.2.6 or 5.3 of the License Agreement have become payable or have been paid as of the date hereof. No payments under in accordance with Section 5.4.2 of the License Agreement shall be due and payable from and after the date hereof.
(k9.02(c) Licensee has not provided the Seller with any notice or document pursuant to Sections 3.3.1(b), 4.3.1, 5.5, 11.1 or 11.6 of the License Agreement, and the Seller has not provided Licensee with any notice pursuant to Sections 4.3.3, 11.1 or 11.6 that a termination of the License Agreement by Licensee in accordance with such section would not in and of itself constitute a breach of this Section 8.1 or any other provision of this Agreement. The Seller has reached Assignor covenants that in the Lightlake Cost Cap described in Section 3.8.1 of the License Agreement.
(l) Except as set forth on Schedule 3.6, no Generic Competition for Narcan® or Third Party Royalty in respect of Narcan® has occurred as of the date hereof and, to the knowledge of the Seller as of the date hereof, no Third Party has developed or is developing a Generic Product. To the knowledge of the Seller, no Product other than Narcan®, and no product containing any Product in combination with another active ingredient, has been or is being developed by Licensee or the Seller. The Seller has not received any communication indicating event that Licensee has made any determination or election pursuant to clause (i) or (ii) of Section 5.5 of the License Agreement.
(m) Except as set forth on Schedule 3.13(m), all of the representations and warranties of Seller in the License Agreement remain true and correct as if made on the date hereofis terminated by Licensee, except Assignor will use its commercially reasonable efforts to enter into a license agreement for the effects Products within the Field of Use for the Patents specified in the Licence Agreement or into a transaction to effect the exploitation for gain of those rights (in either case a “Replacement Agreement”), and to effect an assignment to Assignee of the transactions set forth royalties or proceeds under that Replacement Agreement in order to achieve as closely as possible an economic result no worse to the Assignee than if the License AgreementAgreement had not been terminated, and generally on terms and conditions that are acceptable to Assignee acting reasonably. Confidential Treatment has been requested for portions of this exhibit. The copy filed herewith omits the information subject Assignor shall consult with Assignee prior to entering into any Replacement Agreement and shall keep Assignee informed as to the confidentiality request. Omissions are designated as “****”. A complete version status of this exhibit has been filed separately negotiations with respect to and completion of the Securities and Exchange CommissionReplacement Agreement.
Appears in 1 contract
Samples: Royalty Interest Assignment Agreement (Nanogen Inc)
License Agreement. (a) Other than the Transaction Documents and the License Agreement, there is no contract, agreement or other arrangement (whether written or oral) to which the Seller or Notwithstanding any of its Subsidiaries is a party or by which any of their respective assets or properties is bound or committed (i) that creates a Lien on, affects or otherwise relates in any material respect provision to the Purchased Assetscontrary contained herein or in the other Loan Documents, except as set forth in the following sentence, Borrower may not amend, modify, supplement, alter or waive any right under the License Agreement or the Opiant Technologywithout Lender’s consent, or (ii) for which breachshall not be unreasonably withheld, nonperformanceand, cancellation or failure to renew would reasonably be expected to result in following a Material Adverse Change. To the knowledge of Seller, as of the Closing Date there are no Product Agreements other than the License Agreement. Except for the License AmendmentSecuritization, the License Agreement has not been amended receipt of a Rating Confirmation. Borrower shall be permitted to make any nonmaterial modification, change, supplement, alteration or modified. Confidential Treatment has been requested for portions of this exhibit. The copy filed herewith omits the information subject to the confidentiality request. Omissions are designated as “****”. A complete version of this exhibit has been filed separately with the Securities and Exchange Commission.
(b) The Seller has provided to the Purchaser true, correct and complete copies of (i) the License Agreement, (ii) all royalty reports delivered to the Seller by Licensee pursuant amendment to the License Agreement and (iii) all material notices and correspondence delivered toto waive any nonmaterial rights thereunder, provided that no such modification, change, supplement, alteration, amendment or bywaiver shall affect the cash management procedures set forth in the Loan Documents, decrease the Seller pursuant to, or relating to, the License Agreement since December 15, 2014.
(c) The License Agreement is in full force and effect and is the legal, valid and binding obligation cash flow of the Seller andProperty, adversely affect the marketability of the Property covered thereunder, change the definitions of “default” or “event of default,” change the definitions of “operating expense” or words of similar meaning to add additional items to such definitions, change the definitions of “owner’s distribution” or “owner’s equity” or “debt service amount” or words of similar meaning so as to reduce the payments due the Borrower thereunder, change the timing of remittances to the knowledge of Borrower thereunder, increase or decrease reserve requirements, change the Seller, Licensee, enforceable against the Seller and, to the knowledge of the Seller, Licensee in accordance with its terms, subject, as to enforcement of remedies, to bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’ rights generally, general equitable principles and principles of public policy. The execution and delivery of, and performance of obligations under, the License Agreement were and are within the powers of the Seller and, to the knowledge of the Seller, Licensee. The License Agreement was duly authorized by all necessary action on the part of, and validly executed and delivered by, the Seller and, to the knowledge of the Seller, Licensee. The Seller is not in breach or violation of or in default under the License Agreement which would reasonably be expected to result in a Material Adverse Change. There is no event or circumstance that, upon notice or the passage of time, or both, could reasonably be expected to constitute or give rise to any breach or default in the performance term of the License Agreement by the Seller or, to the knowledge of the Seller, Licensee.
(d) The Seller has not waived or increase any rights or defaults under the License Agreement or released Licensee, in whole or in part, from any of its obligations license fees payable under the License Agreement. The Seller and Licensee have Borrower may not agreed to amend or waive any provision of the License Agreement, and there is no current proposal to do so.
(e) To the knowledge of the Seller, no event has occurred that would give the Seller or Licensee the right to terminate the License Agreement or cease paying Royalties or any other amounts thereunderunless Borrower enters into a replacement license agreement acceptable to Lender in its reasonable discretion, with a replacement licensor that is reasonably acceptable to Lender, and such replacement licensor and Borrower execute and deliver to Lender an assignment and subordination of license agreement in form substantially similar to Lender’s then current form. The Seller has not received any notice Borrower shall have a period of an intention by Licensee to terminate or breach ninety (90) days following the License Agreement, in whole or in part, or challenging the validity or enforceability termination of the License Agreement or the obligation to pay the Royalties or enter into such replacement license with such replacement licensor and to deliver such assignment and subordination of license agreement to deliver. In connection with and as a condition to any other amounts under the License Agreement, or that the Seller or Licensee is in default of its obligations under the License Agreement. To the knowledge such replacement of the Sellerlicensor, there is no defaultfollowing a Securitization, violation or breach by Licensee under or of the License Agreement. The Seller has not given Licensee any notice of termination of the License Agreement, in whole or in part.
(f) Except as provided in the License Agreement, the Seller is not Lender shall have received a party to any agreement providing for or permitting a sharing of, or Set-off or deduction against, the Royalties or any other amounts payable under the License Agreement Rating Confirmation with respect to the Seller. Confidential Treatment has been requested for portions of this exhibit. The copy filed herewith omits the information subject to the confidentiality request. Omissions are designated as “****”. A complete version of this exhibit has been filed separately with the Securities and Exchange Commission.
(g) The Seller has not consented to an assignment by Licensee of any of Licensee’s rights or obligations under the License Agreement, replacement licensor and the Seller is not aware of any such assignment by Licensee. To the knowledge of the Seller, Licensee has not granted any sublicense under the Intellectual Property Rights to any Third Party. Except as contemplated by Section 2.1(a) and Section 2.1(d), the Seller has not assigned, in whole or in part, and has not granted, incurred or suffered to exist any Liens on the License Agreement, the Purchased Assets or any of the Seller’s right, title or interest in and to the Opiant Technology (other than, in the case of the Opiant Technology, the License Agreement)new license agreement.
(h) Neither the Seller nor Licensee has made any claim of indemnification under the License Agreement.
(i) The Seller has not exercised its rights to conduct an audit under the License Agreement.
(j) To the knowledge of the Seller, the Seller has received all amounts owed to it under the License Agreement. The Seller has received (A) each payment pursuant to Section 5.1 of the License Agreement and each payment that was due prior to the date hereof pursuant to Section 5.4 of the License Agreement and (B) each applicable milestone payment pursuant to Sections 5.2.1 and 5.2.2 of the License Agreement. No payments under Sections 5.2.3, 5.2.4, 5.2.5, 5.2.6 or 5.3 of the License Agreement have become payable or have been paid as of the date hereof. No payments under Section 5.4.2 of the License Agreement shall be due and payable from and after the date hereof.
(k) Licensee has not provided the Seller with any notice or document pursuant to Sections 3.3.1(b), 4.3.1, 5.5, 11.1 or 11.6 of the License Agreement, and the Seller has not provided Licensee with any notice pursuant to Sections 4.3.3, 11.1 or 11.6 of the License Agreement. The Seller has reached the Lightlake Cost Cap described in Section 3.8.1 of the License Agreement.
(l) Except as set forth on Schedule 3.6, no Generic Competition for Narcan® or Third Party Royalty in respect of Narcan® has occurred as of the date hereof and, to the knowledge of the Seller as of the date hereof, no Third Party has developed or is developing a Generic Product. To the knowledge of the Seller, no Product other than Narcan®, and no product containing any Product in combination with another active ingredient, has been or is being developed by Licensee or the Seller. The Seller has not received any communication indicating that Licensee has made any determination or election pursuant to clause (i) or (ii) of Section 5.5 of the License Agreement.
(m) Except as set forth on Schedule 3.13(m), all of the representations and warranties of Seller in the License Agreement remain true and correct as if made on the date hereof, except for the effects of the transactions set forth in the License Agreement. Confidential Treatment has been requested for portions of this exhibit. The copy filed herewith omits the information subject to the confidentiality request. Omissions are designated as “****”. A complete version of this exhibit has been filed separately with the Securities and Exchange Commission.
Appears in 1 contract
Samples: Loan Agreement (Colony Resorts LVH Acquisitions LLC)
License Agreement. (a) Other than the Transaction Documents and the License Agreement, there is no contract, agreement or other arrangement (whether written or oralSchedule 3.9(a) to which the Seller or any of its Subsidiaries is a party or by which any of their respective assets or properties is bound or committed (i) that creates a Lien on, affects or otherwise relates in any material respect to the Purchased Assets, the License Agreement or the Opiant Technology, or (ii) for which breach, nonperformance, cancellation or failure to renew would reasonably be expected to result in a Material Adverse Change. To the knowledge of Seller, as of the Closing Date there are no Product Agreements other than the License Agreement. Except for the License Amendment, the License Agreement has not been amended or modified. Confidential Treatment has been requested for portions of this exhibit. The copy filed herewith omits the information subject to the confidentiality request. Omissions are designated as “****”. A complete version of this exhibit has been filed separately with the Securities and Exchange Commission.
(b) The Seller has provided to the Purchaser sets forth true, correct and complete copies of of:
(i) the License Agreement, ;
(ii) all royalty reports delivered Royalty Reports delivered, as of the date of this Agreement, to the Seller by Licensee pursuant to the License Agreement and Agreement; and
(iii) all material written notices and correspondence delivered todelivered, as of the date of this Agreement, to Seller by Licensee, or byto Licensee by Seller, the Seller in each case since January 1, 2020 pursuant to, or relating to, to the License Agreement since December 15, 2014in relation to the Royalty Payments payable thereunder or that would reasonably be expected to constitute or result in a Material Adverse Change.
(cb) The License Agreement is (i) in full force and effect and is effect, (ii) the legal, valid and binding obligation of the Seller and, to the knowledge Knowledge of the Seller, Licensee, and (iii) enforceable against the Seller and, to the knowledge Knowledge of the Seller, Licensee Licensee, in accordance with its terms, subjectsubject in each case, as to enforcement of remedies, to bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’ rights generallyBankruptcy Laws, general equitable principles and principles of public policy. The execution and delivery .
(c) Seller is not in breach or violation of, and performance of obligations or in default under, the License Agreement were and are within the powers of the Seller in any material respect, and, to the knowledge Knowledge of the Seller, Licensee. The License Agreement was duly authorized by all necessary action on the part of, and validly executed and delivered by, the Seller and, to the knowledge of the Seller, Licensee. The Seller Licensee is not in breach or violation of or in default under the License Agreement which in any material respect, in each case in such a manner that would reasonably be expected to result in a Material Adverse Change. There is no event or circumstance that, upon notice or adversely affect the passage of time, or both, could reasonably be expected to constitute or give rise to any breach or default in the performance value of the License Agreement by Purchased Accounts (including the Seller ortiming, to the knowledge of the Seller, Licensee.amount or duration thereof). 4136-8572-7307.8
(d) The Relevant Product is a Licensed Product.
(e) Seller has not waived its right to receive payment in respect of any rights portion of the Royalty Payments, in whole or defaults under the License Agreement in part, or released Licensee, in whole or in part, from any of its obligations under obligation to pay the Royalty Payments in accordance with the License Agreement. The Seller and Licensee have not agreed to amend or waive any provision of the License Agreement, and there is no current proposal to do so.
(ef) To the knowledge Knowledge of the Seller, no event has occurred that would give the Seller or Licensee the right to terminate the License Agreement or cease paying Royalties or any other amounts thereunder. The Seller has not received any notice of an intention by Licensee to terminate or breach the License Agreement, in whole or in part, or to cease paying the Royalty Payments thereunder in accordance with the terms thereof. Seller has not received any written notice from Licensee challenging the validity or enforceability of the License Agreement or the obligation to pay the Royalties or any other amounts Royalty Payments under the License Agreement, or that Agreement in accordance with the Seller or Licensee is in default of its obligations under the License Agreementterms thereof. To the knowledge of the Seller, there is no default, violation or breach by Licensee under or of the License Agreement. The Seller has not given agreed with Licensee any notice of termination of to terminate the License Agreement, Agreement in whole or in part.
(f) Except as provided in the License Agreement, the Seller is not a party to any agreement providing for or permitting a sharing of, or Set-off or deduction against, the Royalties or any other amounts payable under the License Agreement to the Seller. Confidential Treatment has been requested for portions of this exhibit. The copy filed herewith omits the information subject to the confidentiality request. Omissions are designated as “****”. A complete version of this exhibit has been filed separately with the Securities and Exchange Commission.
(g) The Seller has not consented to an assignment by Licensee of any of Licensee’s rights or obligations under the License Agreement, and the Seller is not aware of any such assignment by Licensee. To the knowledge of the Seller, Licensee has not granted any sublicense under the Intellectual Property Rights to any Third Party. Except as contemplated by Section 2.1(a) and Section 2.1(d), the Seller has not assigned, Agreement in whole or in part, and has Seller does not granted, incurred or suffered to exist have Knowledge of any Liens on the License Agreement, the Purchased Assets or any assignment by Licensee of the Seller’s right, title or interest in and to the Opiant Technology (other than, in the case of the Opiant Technology, the License Agreement).
(h) Neither the Seller nor Licensee has made any claim of indemnification under the License Agreement.
(h) Other than the License Agreement, there are no contracts (whether written or oral) between Seller and Licensee that adversely affect the value of the Purchased Accounts (including the timing, amount or duration thereof).
(i) The Seller has received from Licensee all of the Royalty Payments and milestone payments that Seller is entitled to receive pursuant to the License Agreement based on the information provided in the Royalty Reports that Seller has received from Licensee. To the Knowledge of Seller, Seller has not exercised its rights to conduct an audit under received any payments from Licensee on account of Royalty Payments that would otherwise have comprised part of the License AgreementPurchased Accounts.
(j) To the knowledge Knowledge of the Seller, (i) Licensee is not, and has not been in the Seller has received all amounts owed to it under the License Agreement. The Seller has received three (A3) each payment pursuant to Section 5.1 of the License Agreement and each payment that was due years prior to the date hereof of this Agreement, in violation of any Sanctions or Financial Crime Laws, and (ii) Licensee is not conducting, and has not conducted in the three (3) years prior to the date of this Agreement, any business dealings or activities in violation of Sanctions or in any other manner that would expose Seller to the risk of adverse measures pursuant to Section 5.4 of the License Agreement and (B) each applicable milestone payment pursuant to Sections 5.2.1 and 5.2.2 of the License Agreement. No payments under Sections 5.2.3, 5.2.4, 5.2.5, 5.2.6 or 5.3 of the License Agreement have become payable or have been paid as of the date hereof. No payments under Section 5.4.2 of the License Agreement shall be due and payable from and after the date hereofSanctions.
(k) Licensee Seller has not provided the Seller with received from Licensee any written notice or document pursuant to Sections 3.3.1(b), 4.3.1, 5.5, 11.1 or 11.6 of any sublicense granted by Licensee under Section 4.2 of the License AgreementAgreement with respect to the Relevant Product, other then in relation to the Collaboration and License Agreement dated as of January 12, 2020 between the Seller has not provided Licensee with any notice pursuant to Sections 4.3.3Licensee, 11.1 or 11.6 of the License Agreement. The Seller has reached the Lightlake Cost Cap described in Section 3.8.1 of the License AgreementMorphoSys US Inc. and Incyte Corporation .
(l) Except as set forth on Schedule 3.6, no Generic Competition for Narcan® or Third Party Royalty in respect of Narcan® has occurred as of the date hereof and, to the knowledge of the Seller as of the date hereof, no Third Party has developed or is developing a Generic Product. To the knowledge of the Seller, no Product other than Narcan®, and no product containing any Product in combination with another active ingredient, has been or is being developed by Licensee or the Seller. The Seller has not received any communication indicating that Licensee has made any determination or election pursuant to clause (i) or (ii) of exercised its audit right under Section 5.5 5.13 of the License Agreement.
(m) Except as set forth on Schedule 3.13(m)Seller has not delivered to, all or received from, Licensee a notice of the representations and warranties dispute arising out of Seller or in connection with the License Agreement remain true and correct as if made on pursuant to Section 12.1 of the License Agreement, other than any dispute that has been fully resolved prior to the date hereof, except .
(n) Seller has not made any claim for the effects indemnification by Licensee pursuant to Section 9.1 of the transactions set forth in the License Agreement. Confidential Treatment , and Licensee has been requested not made any claim for portions indemnification by Seller pursuant to Section 9.2 of this exhibit. The copy filed herewith omits the information subject to the confidentiality request. Omissions are designated as “****”. A complete version of this exhibit has been filed separately with the Securities and Exchange CommissionLicense Agreement.
Appears in 1 contract
License Agreement. (a) Other than the Transaction Documents and the License Agreement, there is no contract, agreement or other arrangement (whether written or oral) to which the Seller or Notwithstanding any of its Subsidiaries is a party or by which any of their respective assets or properties is bound or committed (i) that creates a Lien on, affects or otherwise relates in any material respect provision to the Purchased Assetscontrary contained herein or in the other Loan Documents, except as set forth in the following sentence, Borrower may not amend, modify, supplement, alter or waive any right under the License Agreement or the Opiant Technologywithout Lender’s consent, or (ii) for which breachshall not be unreasonably withheld, nonperformanceand, cancellation or failure to renew would reasonably be expected to result in following a Material Adverse Change. To the knowledge of Seller, as of the Closing Date there are no Product Agreements other than the License Agreement. Except for the License AmendmentSecuritization, the License Agreement has not been amended receipt of a Rating Confirmation. Borrower shall be permitted to make any nonmaterial modification, change, supplement, alteration or modified. Confidential Treatment has been requested for portions of this exhibit. The copy filed herewith omits the information subject to the confidentiality request. Omissions are designated as “****”. A complete version of this exhibit has been filed separately with the Securities and Exchange Commission.
(b) The Seller has provided to the Purchaser true, correct and complete copies of (i) the License Agreement, (ii) all royalty reports delivered to the Seller by Licensee pursuant amendment to the License Agreement and (iii) all material notices and correspondence delivered toto waive any nonmaterial rights thereunder, provided that no such modification, change, supplement, alteration, amendment or bywaiver shall affect the cash management procedures set forth in the Loan Documents, decrease the Seller pursuant to, or relating to, the License Agreement since December 15, 2014.
(c) The License Agreement is in full force and effect and is the legal, valid and binding obligation cash flow of the Seller andProperty covered thereunder, adversely affect the marketability of the Property covered thereunder, change the definitions of “default” or “event of default,” change the definitions of “operating expense” or words of similar meaning to add additional items to such definitions, change the definitions of “owner’s distribution” or “owner’s equity” or “debt service amount” or words of similar meaning so as to reduce the payments due the Borrower thereunder, change the timing of remittances to the knowledge of Borrower thereunder, increase or decrease reserve requirements, change the Seller, Licensee, enforceable against the Seller and, to the knowledge of the Seller, Licensee in accordance with its terms, subject, as to enforcement of remedies, to bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’ rights generally, general equitable principles and principles of public policy. The execution and delivery of, and performance of obligations under, the License Agreement were and are within the powers of the Seller and, to the knowledge of the Seller, Licensee. The License Agreement was duly authorized by all necessary action on the part of, and validly executed and delivered by, the Seller and, to the knowledge of the Seller, Licensee. The Seller is not in breach or violation of or in default under the License Agreement which would reasonably be expected to result in a Material Adverse Change. There is no event or circumstance that, upon notice or the passage of time, or both, could reasonably be expected to constitute or give rise to any breach or default in the performance term of the License Agreement by the Seller or, to the knowledge of the Seller, Licensee.
(d) The Seller has not waived or increase any rights or defaults under the License Agreement or released Licensee, in whole or in part, from any of its obligations license fees payable under the License Agreement. The Seller and Licensee have Borrower may not agreed to amend or waive any provision of the License Agreement, and there is no current proposal to do so.
(e) To the knowledge of the Seller, no event has occurred that would give the Seller or Licensee the right to terminate the License Agreement or cease paying Royalties or any other amounts thereunderunless Borrower enters into a replacement license agreement acceptable to Lender in its reasonable discretion, with a replacement licensor that is reasonably acceptable to Lender, and such replacement licensor and Borrower execute and deliver to Lender an assignment and subordination of license agreement in form substantially similar to Lender’s then current form. The Seller has not received any notice Borrower shall have a period of an intention by Licensee to terminate or breach ninety (90) days following the License Agreement, in whole or in part, or challenging the validity or enforceability termination of the License Agreement or the obligation to pay the Royalties or enter into such replacement license with such replacement licensor and to deliver such assignment and subordination of license agreement to deliver. In connection with and as a condition to any other amounts under the License Agreement, or that the Seller or Licensee is in default of its obligations under the License Agreement. To the knowledge such replacement of the Sellerlicensor, there is no defaultfollowing a Securitization, violation or breach by Licensee under or of the License Agreement. The Seller has not given Licensee any notice of termination of the License Agreement, in whole or in part.
(f) Except as provided in the License Agreement, the Seller is not Lender shall have received a party to any agreement providing for or permitting a sharing of, or Set-off or deduction against, the Royalties or any other amounts payable under the License Agreement Rating Confirmation with respect to the Seller. Confidential Treatment has been requested for portions of this exhibit. The copy filed herewith omits the information subject to the confidentiality request. Omissions are designated as “****”. A complete version of this exhibit has been filed separately with the Securities and Exchange Commission.
(g) The Seller has not consented to an assignment by Licensee of any of Licensee’s rights or obligations under the License Agreement, replacement licensor and the Seller is not aware of any such assignment by Licensee. To the knowledge of the Seller, Licensee has not granted any sublicense under the Intellectual Property Rights to any Third Party. Except as contemplated by Section 2.1(a) and Section 2.1(d), the Seller has not assigned, in whole or in part, and has not granted, incurred or suffered to exist any Liens on the License Agreement, the Purchased Assets or any of the Seller’s right, title or interest in and to the Opiant Technology (other than, in the case of the Opiant Technology, the License Agreement)new license agreement.
(h) Neither the Seller nor Licensee has made any claim of indemnification under the License Agreement.
(i) The Seller has not exercised its rights to conduct an audit under the License Agreement.
(j) To the knowledge of the Seller, the Seller has received all amounts owed to it under the License Agreement. The Seller has received (A) each payment pursuant to Section 5.1 of the License Agreement and each payment that was due prior to the date hereof pursuant to Section 5.4 of the License Agreement and (B) each applicable milestone payment pursuant to Sections 5.2.1 and 5.2.2 of the License Agreement. No payments under Sections 5.2.3, 5.2.4, 5.2.5, 5.2.6 or 5.3 of the License Agreement have become payable or have been paid as of the date hereof. No payments under Section 5.4.2 of the License Agreement shall be due and payable from and after the date hereof.
(k) Licensee has not provided the Seller with any notice or document pursuant to Sections 3.3.1(b), 4.3.1, 5.5, 11.1 or 11.6 of the License Agreement, and the Seller has not provided Licensee with any notice pursuant to Sections 4.3.3, 11.1 or 11.6 of the License Agreement. The Seller has reached the Lightlake Cost Cap described in Section 3.8.1 of the License Agreement.
(l) Except as set forth on Schedule 3.6, no Generic Competition for Narcan® or Third Party Royalty in respect of Narcan® has occurred as of the date hereof and, to the knowledge of the Seller as of the date hereof, no Third Party has developed or is developing a Generic Product. To the knowledge of the Seller, no Product other than Narcan®, and no product containing any Product in combination with another active ingredient, has been or is being developed by Licensee or the Seller. The Seller has not received any communication indicating that Licensee has made any determination or election pursuant to clause (i) or (ii) of Section 5.5 of the License Agreement.
(m) Except as set forth on Schedule 3.13(m), all of the representations and warranties of Seller in the License Agreement remain true and correct as if made on the date hereof, except for the effects of the transactions set forth in the License Agreement. Confidential Treatment has been requested for portions of this exhibit. The copy filed herewith omits the information subject to the confidentiality request. Omissions are designated as “****”. A complete version of this exhibit has been filed separately with the Securities and Exchange Commission.
Appears in 1 contract
Samples: Loan Agreement (Colony Resorts LVH Acquisitions LLC)
License Agreement. (aa. Schedule 3.9(a) Other than the Transaction Documents and the License Agreement, there is no contract, agreement or other arrangement (whether written or oral) to which the Seller or any of its Subsidiaries is a party or by which any of their respective assets or properties is bound or committed (i) that creates a Lien on, affects or otherwise relates in any material respect to the Purchased Assets, the License Agreement or the Opiant Technology, or (ii) for which breach, nonperformance, cancellation or failure to renew would reasonably be expected to result in a Material Adverse Change. To the knowledge of Seller, as of the Closing Date there are no Product Agreements other than the License Agreement. Except for the License Amendment, the License Agreement has not been amended or modified. Confidential Treatment has been requested for portions of this exhibit. The copy filed herewith omits the information subject to the confidentiality request. Omissions are designated as “****”. A complete version of this exhibit has been filed separately with the Securities and Exchange Commission.
(b) The Seller has provided to the Purchaser sets forth true, correct and complete copies of (i) of:
i. the License Agreement; and
ii. the Technology Transfer Agreement.
b. True, (ii) correct and complete copies of each of the following documents have been made available in the Data Room:
i. all royalty reports delivered Royalty Reports delivered, as of the date of this Agreement, to the Seller by Licensee pursuant to the License Agreement and (iii) Agreement; and
ii. all material written notices and correspondence delivered todelivered, as of the date of this Agreement, to Seller by Licensee, or byto Licensee by Seller, the Seller in each case since April 1, 2020 pursuant to, or relating to, to the License Agreement since December 15in relation to the Royalty Payments and the Milestone Payments that would, 2014individually or in the aggregate, reasonably be expected to have a Material Adverse Effect, except, in each case, with respect to such notices relating to disputes that have been fully resolved prior to the date hereof and have, as part of that resolution, resulted in an amendment to the License Agreement. A complete copy of the Data Room will be made available to Purchaser at, or promptly following, the Closing, by (A) delivery of an electronic copy of the Data Room by Seller to Purchaser, or (B) making all of the contents of the Data Room available for downloading by Purchaser (in either case, the “Data Room Deliverable”).
(c) The c. Each of the License Agreement and the Technology Transfer Agreement is (i) in full force and effect and is effect, (ii) the legal, valid and binding obligation of the Seller and, to the knowledge Knowledge of the Seller, Licensee, and (iii) enforceable against the Seller and, to the knowledge Knowledge of the Seller, Licensee Licensee, in accordance with its terms, subjectsubject in each case, as to enforcement of remedies, to bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’ rights generallyBankruptcy Laws, general equitable principles and principles of public policy. The execution and delivery of, and performance of obligations under, the License Agreement were and are within the powers of the Seller and, to the knowledge of the Seller, Licensee. The License Agreement was duly authorized by all necessary action on the part of, and validly executed and delivered by, the Seller and, to the knowledge of the Seller, Licensee. The .
d. Seller is not in breach or violation of of, or in default under under, the License Agreement which or the Technology Transfer Agreement in any material respect, and, to the Knowledge of Seller, Licensee is not in breach or violation of, or in default under, the License Agreement or the Technology Transfer Agreement in any material respect, in each case, in such a manner that would reasonably be expected to result in a Material Adverse Change. There is no event or circumstance that, upon notice or adversely affect the passage of time, or both, could reasonably be expected to constitute or give rise to any breach or default in the performance value of the License Agreement by Purchased Receivables (including the Seller ortiming, to the knowledge of the Seller, Licenseeamount or duration thereof).
e. Each of Nilemdo® (dbempedoic acid) The and Nustendi® (bempedoic acid and ezetimibe) is a Licensed Product.
f. Seller has not waived its right to receive payment in respect of any rights portion of the Royalty Payments, in whole or defaults under the License Agreement in part, or released Licensee, in whole or in part, from any of its obligations under obligation to pay the Royalty Payments in accordance with the License Agreement. The Seller and Licensee have not agreed to amend or waive any provision of the License Agreement, and there is no current proposal to do so.
(e) g. To the knowledge Knowledge of the Seller, no event has occurred that would give (i) any party to the Seller License Agreement or Licensee the Technology Transfer Agreement the right to terminate the License Agreement or cease paying Royalties or any other amounts thereunder. The Seller has not received any notice (except with respect to Section 13.2.1 of an intention by Licensee to terminate or breach the License Agreement) or the Technology Transfer Agreement (except with respect to Section 5.5 of the Technology Transfer Agreement), as applicable, in whole or in part, or (ii) Licensee the right to cease paying the Royalty Payments under the License Agreement (except with respect to Section 13.2.1 of the License Agreement) in accordance with the terms thereof. Seller has not received any written notice from Licensee challenging the validity or enforceability of the License Agreement or the obligation to pay the Royalties or any other amounts Royalty Payments under the License Agreement, or that Agreement in accordance with the Seller or Licensee is in default of its obligations under the License Agreementterms thereof. To the knowledge of the Seller, there is no default, violation or breach by Licensee under or of the License Agreement. The Seller has not given Licensee received any notice of termination of the License Agreement by Licensee pursuant to Section 13.2.1 of the License Agreement, . Seller has not agreed with Licensee to terminate the License Agreement in whole or in part.
(f) Except as provided in the License Agreement, the Seller is not a party to any agreement providing for or permitting a sharing of, or Set-off or deduction against, the Royalties or any other amounts payable under the License Agreement to the Seller. Confidential Treatment has been requested for portions of this exhibit. The copy filed herewith omits the information subject to the confidentiality request. Omissions are designated as “****”. A complete version of this exhibit has been filed separately with the Securities and Exchange Commission.
(g) The h. Seller has not consented to an assignment by Licensee of the License Agreement in whole or in part, and Seller does not have Knowledge of any assignment by Licensee of Licensee’s rights or obligations under the License Agreement.
i. Other than the License Agreement, there are no contracts (whether written or oral) between Seller and Licensee that adversely affect the value of the Purchased Receivables (including the timing, amount or duration thereof).
j. Seller has received from Licensee all of the Royalty Payments and the Milestone Payments that Seller is not aware of any such assignment by entitled to receive pursuant to the License Agreement based on the information provided in the Royalty Reports that Seller has received from Licensee. To the knowledge Knowledge of Seller, Seller has not received any payments from Licensee on account of the Royalty Payments that would otherwise have comprised part of the Purchased Receivables.
k. Licensee has not taken, and Seller has not received any written notice from Licensee expressing an intention by Licensee to take, any Licensee Deduction from any Royalty Payments or other amounts payable by Licensee to Seller pursuant to the License Agreement because of any amount owed or claimed owed from Seller or an Affiliate of Seller to Licensee, and to the Knowledge of Seller, no event or condition exists that would permit Licensee to do so for such reason.
l. To the Knowledge of Seller, (i) Licensee is not, and has not been in the three (3) years prior to the date of this Agreement, in violation of any Sanctions or Financial Crime Laws, and (ii) Licensee is not conducting, and has not conducted in the three (3) years prior to the date of this Agreement, any business dealings or activities in violation of Sanctions or in any other manner that would expose Seller to the risk of adverse measures pursuant to Sanctions.
m. To the Knowledge of Seller, Licensee has not granted any sublicense under the Intellectual Property Rights pursuant to any Third Party. Except as contemplated by Section 2.1(a) and Section 2.1(d), the Seller has not assigned, in whole or in part, and has not granted, incurred or suffered to exist any Liens on the License Agreement, the Purchased Assets or any 8.1.2 of the Seller’s right, title or interest in and to the Opiant Technology (other than, in the case of the Opiant Technology, the License Agreement).
(h) Neither the Seller nor Licensee has made any claim of indemnification under the License Agreement.
(i) The n. Seller has not exercised its rights to conduct an audit right under Section 9.6 of the License Agreement.
(j) To the knowledge of the Seller, the o. Seller has not delivered to, or received all amounts owed to it under from, Licensee a notice of dispute arising out of or in connection with the License Agreement. The Seller , other than any dispute that has received (A) each payment pursuant to Section 5.1 of the License Agreement and each payment that was due been fully resolved prior to the date hereof pursuant to Section 5.4 of the License Agreement and (B) each applicable milestone payment pursuant to Sections 5.2.1 and 5.2.2 of the License Agreement. No payments under Sections 5.2.3, 5.2.4, 5.2.5, 5.2.6 or 5.3 of the License Agreement have become payable or have been paid as of the date hereof. No payments under Section 5.4.2 of the License Agreement shall be due and payable from and after the date hereof.
(k) Licensee p. Seller has not provided the Seller with made any notice or document claim for indemnification by Licensee pursuant to Sections 3.3.1(b), 4.3.1, 5.5, Section 11.1 or 11.6 of the License Agreement, and the Seller Licensee has not provided Licensee with made any notice claim for indemnification by Seller pursuant to Sections 4.3.3, 11.1 or 11.6 of the License Agreement. The Seller has reached the Lightlake Cost Cap described in Section 3.8.1 11.2 of the License Agreement.
(lq. Schedule 3.9(q) Except as set forth on Schedule 3.6, no Generic Competition for Narcan® or Third Party Royalty in respect of Narcan® has occurred as specifies the date of the date hereof and, to first quarter during which the knowledge of the Seller First Commercial Sale (as of the date hereof, no Third Party has developed or is developing a Generic Product. To the knowledge of the Seller, no Product other than Narcan®, and no product containing any Product in combination with another active ingredient, has been or is being developed by Licensee or the Seller. The Seller has not received any communication indicating that Licensee has made any determination or election pursuant to clause (i) or (ii) of Section 5.5 of the License Agreement.
(m) Except as set forth on Schedule 3.13(m), all of the representations and warranties of Seller in the License Agreement remain true and correct as if made on the date hereof, except for the effects of the transactions set forth defined in the License Agreement. Confidential Treatment has been requested ) for portions of this exhibit. The copy filed herewith omits each Licensed Product in the information subject to the confidentiality request. Omissions are designated as “****”. A complete version of this exhibit has been filed separately with the Securities and Exchange CommissionDSE Territory occurred.
Appears in 1 contract
Samples: Royalty Purchase Agreement (Esperion Therapeutics, Inc.)
License Agreement. (a) Other than Unless otherwise agreed to in writing by the Transaction Documents and Parties, during the License AgreementTerm, there is no contractAssignor shall not, agreement or other arrangement (whether written or oral) with respect to which the Seller or any of its Subsidiaries is a party or by which any of their respective assets or properties is bound or committed Acquired Royalty Payments (i) that creates a Lien onforgive, affects release, or otherwise relates in compromise any material amount owed or to become owing with respect to the Purchased Assets, Acquired Royalty Payments on or after the License Agreement or the Opiant Technology, or (ii) for which breach, nonperformance, cancellation or failure to renew would reasonably be expected to result in a Material Adverse Change. To the knowledge of Seller, as of the Closing Date there are no Product Agreements other than the License Agreement. Except for the License Amendment, the License Agreement has not been amended or modified. Confidential Treatment has been requested for portions of this exhibit. The copy filed herewith omits the information subject to the confidentiality request. Omissions are designated as “****”. A complete version of this exhibit has been filed separately with the Securities and Exchange Commission.
(b) The Seller has provided to the Purchaser true, correct and complete copies of (i) the License AgreementEffective Date, (ii) all royalty reports delivered to the Seller by Licensee pursuant to the License Agreement and (iii) all material notices and correspondence delivered tomodify, waive, cancel or by, the Seller pursuant to, or relating to, the License Agreement since December 15, 2014.
(c) The License Agreement is in full force and effect and is the legal, valid and binding obligation otherwise relinquish any of the Seller and, to the knowledge of the Seller, Licensee, enforceable against the Seller and, to the knowledge of the Seller, Licensee in accordance with its terms, subject, as to enforcement of remedies, to bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’ rights generally, general equitable principles and principles of public policy. The execution and delivery of, and performance of obligations under, the License Agreement were and are within the powers of the Seller and, to the knowledge of the Seller, Licensee. The License Agreement was duly authorized by all necessary action on the part of, and validly executed and delivered by, the Seller and, to the knowledge of the Seller, Licensee. The Seller is not in breach or violation of or in default under the License Agreement which would reasonably be expected to result in a Material Adverse Change. There is no event or circumstance that, upon notice or the passage of time, or both, could reasonably be expected to constitute or give rise to any breach or default in the performance of the License Agreement by the Seller or, to the knowledge of the Seller, Licensee.
(d) The Seller has not waived any rights or defaults under the License Agreement or released Licensee, in whole or in part, from any of its obligations under the License Agreement. The Seller and Licensee have not agreed to amend or waive any provision of the License Agreement, and there is no current proposal to do so.
(e) To the knowledge of the Seller, no event has occurred that would give the Seller or Licensee the right to terminate the License Agreement or cease paying Royalties or any other amounts thereunder. The Seller has not received any notice of an intention by Licensee to terminate or breach the License Agreement, in whole or in part, or challenging the validity or enforceability of the License Agreement or the obligation to pay the Royalties or any other amounts Acquired Royalty Payments under the License Agreement, or (iii) amend, restate or novate either the License Agreement or the Quencher Agreement in a manner that could adversely affect, or diminish the Seller value of, the Acquired Royalty Payments.
(b) During the Term, upon becoming aware of any breach of the License Agreement arising with respect to the Acquired Royalty Payments, Assignor shall promptly notify Assignee in writing of such breach.
(c) During the Term and while any obligations remain outstanding under this Agreement, Assignor will not terminate, modify, or Licensee is in default of subcontract or otherwise delegate its obligations under the License Agreement. To Agreement without the knowledge prior written consent of the Seller, there is no default, violation or breach by Licensee under or Assignee and will fulfill all of the License Agreement. The Seller has not given Licensee any notice of termination of the License Agreement, in whole or in part.
(f) Except as provided in the License Agreement, the Seller is not a party to any agreement providing for or permitting a sharing of, or Set-off or deduction against, the Royalties or any other amounts payable under the License Agreement to the Seller. Confidential Treatment has been requested for portions of this exhibit. The copy filed herewith omits the information subject to the confidentiality request. Omissions are designated as “****”. A complete version of this exhibit has been filed separately with the Securities and Exchange Commission.
(g) The Seller has not consented to an assignment by Licensee of any of Licensee’s rights or its supply obligations under the License Agreement, and the Seller is not aware of any such assignment by Licensee. To the knowledge of the Seller, Licensee has not granted any sublicense under the Intellectual Property Rights to any Third Party. Except as contemplated by Section 2.1(a) and Section 2.1(d), the Seller has not assigned, in whole or in part, and has not granted, incurred or suffered to exist any Liens on the License Agreement, the Purchased Assets or any of the Seller’s right, title or interest in and to the Opiant Technology (other than, in the case of the Opiant Technology, the License Agreement).
(h) Neither the Seller nor Licensee has made any claim of indemnification under the License Agreement.
(id) The Seller has not exercised its rights Assignor will promptly provide to conduct an audit the Assignee copies of all Reports delivered under the License Agreement during the Term or after the Term to the extent the Reports relate to the Acquired Royalty Payments.
(e) Any royalty under any of the Patents payable to Assignor arising from the sale of any Product which is a licensed product covered by both the License Agreement and the Quencher Agreement shall be a Royalty subject to, and shall be paid to Assignee under, the terms of this Agreement.
(jf) To From time to time after the knowledge Effective Date, Assignee may change its nominee for purposes of the SellerAuthorization, and upon request of Assignee, Assignor shall promptly execute and deliver to Assignee a new Authorization in respect of Assignee’s nominee as duly authorized agent.
(g) Epoch will not exercise its rights to inspect Licensee’s records relating to the Seller has received all amounts owed to it under the License Agreement. The Seller has received (A) each payment Acquired Royalty Payments pursuant to the audit rights under Section 5.1 5.10 of the License Agreement and each payment without the prior written consent of Assignee, which consent may be withheld in Assignee’s sole discretion.
(h) Assignee acknowledges that was due prior to the date hereof pursuant to Section 5.4 of the License Agreement and may be terminated by the Licensee (Bother than by reason of an act or omission of Epoch which caused such termination) each applicable milestone payment pursuant to Sections 5.2.1 and 5.2.2 of the License Agreement. No payments under Sections 5.2.3, 5.2.4, 5.2.5, 5.2.6 or 5.3 of the License Agreement have become payable or have been paid as of the date hereof. No payments under in accordance with Section 5.4.2 of the License Agreement shall be due and payable from and after the date hereof.
(k9.02(c) Licensee has not provided the Seller with any notice or document pursuant to Sections 3.3.1(b), 4.3.1, 5.5, 11.1 or 11.6 of the License Agreement, and the Seller has not provided Licensee with any notice pursuant to Sections 4.3.3, 11.1 or 11.6 that a termination of the License Agreement by Licensee in accordance with such section would not in and of itself constitute a breach of this Section 8.1 or any other provision of this Agreement. The Seller has reached Assignor covenants that in the Lightlake Cost Cap described in Section 3.8.1 of the License Agreement.
(l) Except as set forth on Schedule 3.6, no Generic Competition for Narcan® or Third Party Royalty in respect of Narcan® has occurred as of the date hereof and, to the knowledge of the Seller as of the date hereof, no Third Party has developed or is developing a Generic Product. To the knowledge of the Seller, no Product other than Narcan®, and no product containing any Product in combination with another active ingredient, has been or is being developed by Licensee or the Seller. The Seller has not received any communication indicating event that Licensee has made any determination or election pursuant to clause (i) or (ii) of Section 5.5 of the License Agreement.
(m) Except as set forth on Schedule 3.13(m), all of the representations and warranties of Seller in the License Agreement remain true and correct as if made on the date hereofis terminated by Licensee, except Assignor will use its commercially reasonable efforts to enter into a license agreement for the effects Products within the Field of Use for the Patents specified in the Licence Agreement or into a transaction to effect the exploitation for gain of those rights (in either case a “Replacement Agreement”), and to effect an assignment to Assignee of the transactions set forth royalties or proceeds under that Replacement Agreement in order to achieve as closely as possible an economic result no worse to the Assignee than if the License AgreementAgreement had not been terminated, and generally on terms and conditions that are acceptable to Assignee acting reasonably. Confidential Treatment has been requested for portions of this exhibit. The copy filed herewith omits the information subject Assignor shall consult with Assignee prior to entering into any Replacement Agreement and shall keep Assignee informed as to the confidentiality request. Omissions are designated as “****”. A complete version status of this exhibit has been filed separately negotiations with respect to and completion of the Securities and Exchange CommissionReplacement Agreement.
Appears in 1 contract
Samples: Supplemental Royalty Interest Assignment Agreement (Nanogen Inc)
License Agreement. Tenant acknowledges that Tenant previously entered into a License Agreement (as defined in the Additional Parcels Purchase Agreement) covering a portion of the Additional Parcels and that the License Agreement shall be deemed subordinate to this Lease as between Landlord and Tenant, and their respective successors and assigns, and Tenant shall be solely responsible for all obligations thereunder of the licensor. Furthermore, Xxxxxx agrees to indemnify, save, defend (at Landlord’s option and with counsel reasonably acceptable to Landlord) and hold the Landlord Indemnitees harmless from and against any Claims relating t:o (a) Other than any act or omission by the Transaction Documents and licensees or their invitees; or (b) the License Agreement, there is no contractincluding, agreement without limitation, any breach or other arrangement default thereunder. Furthermore, Tenant acknowledges and agrees that: (whether written or oralm) to which any default by the Seller or any of its Subsidiaries is a party or by which any of their respective assets or properties is bound or committed (i) that creates a Lien on, affects or otherwise relates in any material respect to the Purchased Assets, licensees under the License Agreement or that constitutes a default of Tenant’s obligations under this Lease shall be deemed a default by Tenant under this Lease and any such default that extends beyond the Opiant Technology, or applicable notice and cure period provided under this Lease shall be deemed a Default hereunder; (iin) for which breach, nonperformance, cancellation or failure to renew would reasonably be expected to result in a Material Adverse Change. To the knowledge of Seller, as of the Closing Date there are no Product Agreements other than the License Agreement. Except for the License Amendment, any default by Tenant under the License Agreement has not been amended or modified. Confidential Treatment has been requested for portions of that remains outstanding after any applicable notice and cure period shall be deemed a Default under this exhibit. The copy filed herewith omits the information subject to the confidentiality request. Omissions are designated as “****”. A complete version of this exhibit has been filed separately Lease; (o) Tenant shall provide Landlord with the Securities and Exchange Commission.
(b) The Seller has provided to the Purchaser true, correct and complete copies of (i) any amendments to the License Agreement entered into after the Commencement Date, and (ii) any material notices delivered or received by Tenant with respect to the License Agreement, including, without limitation, any default notices. Tenant shall not (x) extend the term under the License Agreement or otherwise amend the terms in any manner which would create additional obligations or liability on the part of Tenant which does not currently exist under the License Agreement, (iiy) all royalty reports delivered consent to the Seller by Licensee pursuant to any assignment of the License Agreement and (iii) all material notices and correspondence delivered to, or by, the Seller pursuant to, or relating to, the License Agreement since December 15, 2014.
(c) The License Agreement is in full force and effect and is the legal, valid and binding obligation any further licensing of the Seller and, to the knowledge of the Seller, Licensee, enforceable against the Seller and, to the knowledge of the Seller, Licensee in accordance with its terms, subject, as to enforcement of remedies, to bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’ rights generally, general equitable principles and principles of public policy. The execution and delivery of, and performance of obligations under, the License Agreement were and are within the powers of the Seller and, to the knowledge of the Seller, Licensee. The License Agreement was duly authorized by all necessary action on the part of, and validly executed and delivered by, the Seller and, to the knowledge of the Seller, Licensee. The Seller is not in breach or violation of or in default licensed premises under the License Agreement which would reasonably be expected is subject to result in a Material Adverse Change. There is no event or circumstance that, upon notice or the passage of timeTenant’s consent thereunder, or both, could reasonably be expected to constitute or give rise (z) consent to any breach or default in the performance of the License Agreement by the Seller or, alterations to the knowledge of the Seller, Licensee.
(d) The Seller has not waived any rights or defaults under the License Agreement or released Licensee, in whole or in part, from any of its obligations under the License Agreement. The Seller and Licensee have not agreed Premises to amend or waive any provision of the License Agreement, and there is no current proposal to do so.
(e) To the knowledge of the Seller, no event has occurred that would give the Seller or Licensee the right to terminate the License Agreement or cease paying Royalties or any other amounts thereunder. The Seller has not received any notice of an intention be completed by Licensee to terminate or breach the License Agreement, in whole or in part, or challenging the validity or enforceability of the License Agreement or the obligation to pay the Royalties or any other amounts under the License Agreement, or that the Seller or Licensee is in default of its obligations under the License Agreement. To the knowledge of the Seller, there is no default, violation or breach by Licensee under or of the License Agreement. The Seller has not given Licensee any notice of termination of the License Agreement, in whole or in partwithout Xxxxxxxx’s prior written consent.
(f) Except as provided in the License Agreement, the Seller is not a party to any agreement providing for or permitting a sharing of, or Set-off or deduction against, the Royalties or any other amounts payable under the License Agreement to the Seller. Confidential Treatment has been requested for portions of this exhibit. The copy filed herewith omits the information subject to the confidentiality request. Omissions are designated as “****”. A complete version of this exhibit has been filed separately with the Securities and Exchange Commission.
(g) The Seller has not consented to an assignment by Licensee of any of Licensee’s rights or obligations under the License Agreement, and the Seller is not aware of any such assignment by Licensee. To the knowledge of the Seller, Licensee has not granted any sublicense under the Intellectual Property Rights to any Third Party. Except as contemplated by Section 2.1(a) and Section 2.1(d), the Seller has not assigned, in whole or in part, and has not granted, incurred or suffered to exist any Liens on the License Agreement, the Purchased Assets or any of the Seller’s right, title or interest in and to the Opiant Technology (other than, in the case of the Opiant Technology, the License Agreement).
(h) Neither the Seller nor Licensee has made any claim of indemnification under the License Agreement.
(i) The Seller has not exercised its rights to conduct an audit under the License Agreement.
(j) To the knowledge of the Seller, the Seller has received all amounts owed to it under the License Agreement. The Seller has received (A) each payment pursuant to Section 5.1 of the License Agreement and each payment that was due prior to the date hereof pursuant to Section 5.4 of the License Agreement and (B) each applicable milestone payment pursuant to Sections 5.2.1 and 5.2.2 of the License Agreement. No payments under Sections 5.2.3, 5.2.4, 5.2.5, 5.2.6 or 5.3 of the License Agreement have become payable or have been paid as of the date hereof. No payments under Section 5.4.2 of the License Agreement shall be due and payable from and after the date hereof.
(k) Licensee has not provided the Seller with any notice or document pursuant to Sections 3.3.1(b), 4.3.1, 5.5, 11.1 or 11.6 of the License Agreement, and the Seller has not provided Licensee with any notice pursuant to Sections 4.3.3, 11.1 or 11.6 of the License Agreement. The Seller has reached the Lightlake Cost Cap described in Section 3.8.1 of the License Agreement.
(l) Except as set forth on Schedule 3.6, no Generic Competition for Narcan® or Third Party Royalty in respect of Narcan® has occurred as of the date hereof and, to the knowledge of the Seller as of the date hereof, no Third Party has developed or is developing a Generic Product. To the knowledge of the Seller, no Product other than Narcan®, and no product containing any Product in combination with another active ingredient, has been or is being developed by Licensee or the Seller. The Seller has not received any communication indicating that Licensee has made any determination or election pursuant to clause (i) or (ii) of Section 5.5 of the License Agreement.
(m) Except as set forth on Schedule 3.13(m), all of the representations and warranties of Seller in the License Agreement remain true and correct as if made on the date hereof, except for the effects of the transactions set forth in the License Agreement. Confidential Treatment has been requested for portions of this exhibit. The copy filed herewith omits the information subject to the confidentiality request. Omissions are designated as “****”. A complete version of this exhibit has been filed separately with the Securities and Exchange Commission.
Appears in 1 contract
