EX-10.1
2
v192040_ex10-1.htm
Exhibit
10.1
EXECUTION
VERSION
Confidential
materials omitted and filed separately with the Securities and
Exchange
Commission. Asterisks
denote such omission.
ROYALTY
INTEREST PURCHASE AGREEMENT
Dated as
of April 16, 2010
among
DYAX
CORP.
and
KGH
Domestic III, LP
Exhibit
10.1
EXECUTION
VERSION
Confidential
materials omitted and filed separately with the Securities and
Exchange
Commission. Asterisks
denote such omission.
ROYALTY
INTEREST PURCHASE AGREEMENT
ROYALTY
INTEREST PURCHASE AGREEMENT (as amended, supplemented or otherwise modified from
time to time, this “Agreement”) is made
and entered into as of April 16, 2010 (the “Effective Date”) by
and among DYAX CORP., a Delaware company ( “Dyax”) and KGH
Domestic III, LP, a Delaware limited partnership (the “Buyer”).
WHEREAS,
Dyax wishes to sell, assign, convey and transfer to the Buyer, and the Buyer
wishes to purchase from Dyax, the Royalty Interests (as defined below), upon and
subject to the terms and conditions hereinafter set forth.
NOW,
THEREFORE, in consideration of the mutual covenants, agreements representations
and warranties set forth herein, the parties hereto agree as
follows:
ARTICLE
I
DEFINITIONS
Section
1.01 Definitions.
“2010 Milestone
Payment” shall have the meaning set forth in Section
2.02(a)(ii)(C).
“2010 Net Sales” shall
mean Worldwide Net Sales for the twelve (12) month period ending on December 31,
2010.
“2011 Milestone
Payment” shall have the meaning set forth in Section
2.02(a)(iii)(B).
“2011 Net Sales” shall
mean Worldwide Net Sales for the twelve (12) month period ending on December 31,
2011.
“Accelerated Payment”
shall mean an amount equal to an amount that would generate an internal rate of
return of [*****], less all Included
Products Payments and any other amounts paid to the Buyer prior to the relevant
Accelerated Payment Triggering Event.
“Accelerated Payment
Triggering Event” shall mean any of the following events:
(a) Dyax’s
failure to pay any required maintenance fees and annuities for
any Dyax Patent in any country, together with all such other costs
contemplated by the last sentence of Section 2.02(b)
below, before the applicable due date and the expiration of any permitted grace
period provided under applicable law, if such failure to pay results in (i)
termination by Wyeth of the Wyeth License Agreement or (ii) a reduction in the
amount of Included Product Payments made to Buyer in respect of such
[*****];
* Confidential Treatment
Requested. Omitted portions filed with the Commission.
1
(b) Dyax’s
breach of Section
2.03(a)(i), Section 2.03(a)(iii),
Section 2.06,
or Section
5.09(a) and such breach is not cured within thirty (30) days of Buyer’s
notice of such breach to Dyax;
(c) Dyax’s
breach of Section
3.18(c), Section 5.05, Section 5.08(a),
Section
5.08(b), or the second sentence of Section 5.08(i),
provided that
with respect to a breach of Section 5.08(b), it
shall not be deemed an Accelerated Payment Triggering Event if the breach of
Section 5.08(b)
was due to a waiver described in clauses (ii) or (iii) of such Section and such
waiver does not result in more than [*****], in the aggregate, in the Included
Product Payments;
(d) Dyax’s
failure to comply with Buyer’s directions or instructions provided to Dyax under
Section
5.01(b), Section 5.08(e), or
Section
5.08(g)(ii), and such failure is not cured within thirty (30) days of
Buyer’s notice of such failure to Dyax; or
(e) Dyax’s
exercise of its remedy under Section 3.5 of the Wyeth License Agreement without
the Buyer’s prior written consent.
“Actual Knowledge”
shall mean, with respect to Dyax, the actual knowledge of an officer or senior
manager or other person with similar responsibility, regardless of title, of
Dyax relating to a particular matter. For the avoidance of doubt, a
person charged with responsibility for the aspect of the business relevant or
related to the matter at issue shall not be deemed to have actual knowledge of a
matter unless it can be shown, through written or other similarly reliable
evidence (including deposition testimony), that such person was
contemporaneously and actually aware of such matter, whether or not, in the
prudent exercise of his or her duties and responsibilities in the ordinary
course of business, such person should have known of such matter.
“Affiliate” shall
mean, with respect to any Person, any other Person that, directly or indirectly,
controls, is controlled by, or is under common control with, such
Person. For purposes of this definition, a Person shall be regarded
as in “control” of another Person if it directly or indirectly owns or controls
more than fifty percent (50%) of the voting securities of such Person, or if it
possesses, directly or indirectly, the power to direct or cause the direction of
management and policies of such Person or the power to elect or appoint more
than fifty percent (50%) of the members of the governing body of the corporation
or other entity.
“Agreement” shall have
the meaning set forth in the first paragraph hereof.
“Audit Costs” shall
mean, with respect to any audit of the books and records of Dyax with respect to
amounts payable or paid under this Agreement or any License Party Audit, the
cost of such audit, including all fees, costs and expenses incurred in
connection therewith.
“Audit Reports” shall
mean, with respect to a License Party Audit, any and all reports, findings and
other written information related to such License Party Audit.
“Bankruptcy” means
with respect to a Person:
(a) an
authorized officer of that Person admits in writing such Person’s inability to
pay its debts generally, or that Person makes an assignment for the benefit of
creditors or commits an act of insolvency or bankruptcy within the meaning of
applicable law; or
* Confidential Treatment
Requested. Omitted portions filed with the Commission.
2
(b) any
proceeding, voluntary or involuntary, is commenced respecting that Person
pursuant to any statute relating to bankruptcy, insolvency, reorganization of
debts, liquidation, winding up or dissolution; provided, however, in the case of
any involuntary bankruptcy proceeding such Person shall be considered to be in
“Bankruptcy” only if that Person consents to the involuntary bankruptcy or such
proceeding is not dismissed within [*****] of the filing thereof;
or
(c) any
receiver, manager, trustee, sequester, custodian or liquidator or person with
similar powers is appointed judicially or extrajudicially for that Person or for
any material portion of its property, and such receiver, manager, trustee,
sequester, custodian, liquidator or other person is not dismissed within [*****]
of its appointment; or
(d) that
Person ceases to carry on business in the ordinary course.
“Xxxx of Sale” shall
mean the Xxxx of Sale pursuant to which Dyax shall assign to the Buyer all of
its rights and interests in and to the Royalty Interests purchased hereunder,
which Xxxx of Sale shall be substantially in the form of Exhibit
A.
“BLA” shall mean a
Biologics License Application, and all amendments and supplements thereto, for
regulatory approval by the FDA as defined in 21 C.F.R. § 601.2 et seq., as such
act or regulations may be amended, supplemented or replaced from time to time,
or an equivalent application for approval filed with a Regulatory Agency in any
other jurisdiction within the Territory.
“Business Day” shall
mean any day other than a Saturday, a Sunday, any day which is a legal holiday
under the laws of the State of
New York or any day on which banking institutions
located in the State of
New York are required by law or other governmental
action to close.
“Buyer” shall have the
meaning set forth in the first paragraph hereof.
“Buyer Account” shall
mean an account maintained by the Buyer at any financial institution and
designated in writing by the Buyer to Dyax, as the Buyer may so designate from
time to time.
“Buyer Consultants”
shall mean the Buyer’s and its Affiliates’ employees, officers, directors, legal
and accounting advisors, agents or other authorized
representatives.
“Buyer Indemnified
Party” shall have the meaning set forth in Section
8.05(a).
“Closing” shall have
the meaning set forth in Section
6.01.
“Closing Date” shall
have the meaning set forth in Section
6.01.
“Collateral” shall
mean the property included in the definition of “Collateral” in the Security
Agreement.
* Confidential Treatment
Requested. Omitted portions filed with the Commission.
3
“Commercially Reasonable
Efforts” shall mean, with respect to Dyax or any other Dyax Entity,
efforts and resources commonly used by biotechnology companies of a similar size
to Dyax and the other Dyax Entities on a consolidated basis, assuming such
Persons possessed all rights provided to Dyax under the Included License
Agreements, had not entered into the Transaction Documents and were otherwise in
a similar business position to that of Dyax and the other Dyax Entities on a
consolidated basis as of the time immediately prior to the Closing, and
including, without limitation taking such steps as are necessary or desirable to
comply with Dyax’s obligations under the Included License
Agreements.
“Competitive Product”
shall mean any product (other than an Included Product) that has been approved
by the FDA or with a Regulatory Agency in any country outside of the United
States for substantially the same indication(s) as any Included
Product.
“Confidential
Information” shall mean all trade secrets and confidential know-how,
confidential business information, financial data and other like
information.
“Contract Party” shall
mean any party to an Included License Agreement.
“Xxxxx Agreement”
shall mean the Amended and Restated Loan Agreement dated as of March 18, 2009
between Xxxxx Healthcare Royalty Partners, L.P. and Dyax.
“Xxxxx Liens” shall
mean Liens created in favor of Xxxxx Healthcare Royalty Partners, L.P. pursuant
to the transactions contemplated by the Xxxxx Agreement.
“Discrepancy Notice”
shall have the meaning set forth in Section
5.02(d).
“Disputes” shall have
the meaning set forth in Section
3.12(m).
“Dyax” shall have the
meaning set forth in the first paragraph hereof.
“Dyax Account” shall
have the meaning set forth in Section
2.02(c).
“Dyax Entities” shall
mean, individually and collectively, Dyax and its Affiliates.
“Dyax Indemnified
Party” shall have the meaning set forth in Section
8.05(b).
“Dyax IP” shall mean
the Dyax Patents and the Dyax Know-How.
“Dyax Know-How” shall
mean the confidential and proprietary information of Dyax, whether or not
patentable, constituting materials, methods, protocols, processes, techniques,
information and data relating to any Dyax Product (in written or tangible form)
under the terms of any Included License Agreement.
“Dyax Patents” shall
mean the patents and patent applications set forth on Schedule 3.12(b),
together with all U.S. and foreign patent applications claiming priority
therefrom, and any patents, continuations, continuations-in-part, divisionals,
reissues, reexaminations, renewals, or extensions thereof, and any additional
patent rights which claim a Dyax Product or its manufacture or
use.
4
“Dyax Product” shall
have the meaning attributed to such term in the Wyeth License
Agreement.
“Effective Date” shall
have the meaning set forth in the first paragraph hereof.
“Excluded Liabilities and
Obligations” shall have the meaning set forth in Section
2.04.
“FDA” shall mean the
United States Food and Drug Administration.
“Financial
Model” shall mean the financial projections
prepared by Dyax for the Included Product Payments, [*****].
“Financial Statements”
shall mean the consolidated balance sheets of Dyax and its subsidiaries prepared
in accordance with GAAP at December 31, 2008 and December 31, 2009, the related
consolidated statements of operations, cash flows and changes in stockholders’
equity of Dyax and its subsidiaries audited for the years ended December 31,
2007, December 31, 2008 and December 31, 2009, and the accompanying footnotes
thereto, which are included in Dyax’s Annual Report on Form 10-K for the year
ended December 31, 2009 filed with the Securities and Exchange Commission on
March 12, 2010.
“GAAP” shall mean
United States generally accepted accounting principles.
“Generic Application”
shall mean an abbreviated new drug application, ANDA, 505(b)(2) application
under the United States Federal Food, Drug and Cosmetic Act and/or any similar
abbreviated approval process for biologics or biosimilars filed with the FDA in
the United States or with a Regulatory Agency in any other
jurisdiction.
“Government Authority”
shall mean any government, court, regulatory or administrative agency or
commission, or other governmental authority, agency or instrumentality, whether
foreign, federal, state or local (domestic or foreign), including patent and
trademark agencies, the FDA or any other government authority in any
country.
“Included License
Agreements” shall mean, collectively, (a) the Wyeth License Agreement
(including any amendments thereto), and (b) any Successor
Agreement.
“Included Products”
shall mean, collectively, (a) the Wyeth Licensed Products, and (b) any
follow-on, comparable or related products, including combination products, in
the Territory covered by or using any Dyax IP under any Included License
Agreement.
“Included Products
Payments” shall mean the gross amount of all royalties, royalty payments,
profit payments or distributions, license fees, maintenance fees, benchmark
payments, settlement payments, judgment payments and securities and any
collections, recoveries, payments, supplements or other compensation made in
lieu thereof and any other remuneration of any kind received or payable in
accordance with the terms of any Included License Agreement in respect of (a)
the Included Products (including pursuant to Section 3.2, Section 3.3 (including
as may be adjusted pursuant to Section 3.5) and Section 3.4 of the Wyeth License
Agreement), and (b) the Dyax IP in respect of any Competitive Product, in each
case including pursuant to Section 365(n) of the U.S. Bankruptcy Code, without
any deductions for any withholding, offset or other deduction by the licensee
thereunder of any taxes, assessments, fees or charges of the United States or
any of the individual states thereof against the stated gross royalties or other
payments under such Included License Agreement. Included Product
Payments shall include any and all royalties and other payments paid to Dyax or
any Dyax Entity by a Third Party in respect of any license or other rights
granted to such Third Party under the Dyax IP for human therapeutic use in the
event that Wyeth’s license under the Wyeth License Agreement is (x) converted to
a non-exclusive license and the royalties paid by Wyeth under the Wyeth License
Agreement are reduced or (y) terminated or expired.
* Confidential Treatment
Requested. Omitted portions filed with the Commission.
5
“Included Reports”
shall mean, with respect to the relevant calendar quarter, all royalty reports,
other payment information and all other correspondence received by a Dyax Entity
from a Contract Party in connection with an Included License
Agreement.
“IND” shall mean an
investigational new drug application as defined in 21 C.F.R. Section 312 et seq.
filed with the FDA in the United States or an equivalent application filed with
a Regulatory Agency in any other jurisdiction within the Territory.
“Independent
Accountants” shall have the meaning set forth in Section
5.02(d).
“Investment” shall
mean all amounts payable to Dyax pursuant to Section
2.02(a).
“Knowledge” shall mean, with respect Dyax, the
knowledge of an officer or senior manager or other person with similar
responsibility, regardless of title, of Dyax relating to a particular
matter; provided,
however, that a person charged with responsibility for the aspect of the
business relevant or related to the matter at issue shall be deemed to have
knowledge of a particular matter if, in the prudent exercise of his or her
duties and responsibilities in the ordinary course of business, such person
should have known of such matter, it being understood that such proviso shall
not be deemed to require Dyax to commission any patent clearance or validity
study or any patent search of any third party patent databases not already
commissioned on or prior to the Effective Date.
“License Party Audit”
shall have the meaning set forth in Section
5.02(e).
“Liens” shall mean all
liens, encumbrances, security interests, mortgages, rights to preferential
payments or charges of any kind.
“Losses” shall mean
collectively, any and all claims, damages, losses, judgments, liabilities, costs
and expenses (including reasonable expenses of investigation and reasonable
attorney’s fees and expenses in connection with any action, suit or
proceeding).
“Material Adverse
Change” shall mean (a) any material impairment of or material adverse
change in (i) the validity or enforceability of any of the Transaction
Documents, (ii) the ability of any Dyax Entity to satisfy and perform any
of its obligations under any of the Transaction Documents or consummate the
transactions contemplated thereby, (iii) the right of any Dyax Entity to
receive any material payments payable under any [*****] or any other material
rights and remedies of any Dyax Entity under any [*****], or (iv) the right of
the Buyer [*****] or any other payment or right due to the Buyer under the
Transaction Documents; (b) a material adverse change affecting the Included
Products or in the level of current or expected future Included Products
Payments (based upon the Financial Model); (c) any Bankruptcy of Dyax, (d) any
material adverse change in the business, operations, asset or financial
condition of any Dyax Entity, taken as a whole, that could reasonably be
expected to have a material adverse effect on the ability of that Dyax Entity to
perform any of its obligations under this Agreement or any of the Transaction
Documents (if applicable to that Dyax Entity) or (e) any material impairment of
the validity, enforceability or transferability of any Dyax IP, any material
challenge to or any material litigation involving any Dyax IP, or any material
impairment of the prospects for any renewal or extension of the term of any Dyax
IP.
* Confidential Treatment
Requested. Omitted portions filed with the Commission.
6
“NDA” shall mean a New
Drug Application, and all amendments and supplements thereto, for regulatory
approval by the FDA as defined in 21 C.F.R. § 314.50 et seq., as such act or
regulations may be amended, supplemented or replaced from time to time, or an
equivalent application for approval filed with a Regulatory Agency in any other
jurisdiction within the Territory.
“Net Sales” shall have
the meaning attributed to such term in the Wyeth License Agreement, it being
understood “Net Sales” be first calculated in the currency of sale and then
converted into U.S. dollars at the conversation rate existing in the United
States (as reported in the Wall Street Journal) on the last working day of the
calendar quarter preceding the applicable calendar quarter.
“Obligations” shall
mean any and all obligations of Dyax under this Agreement and the other
Transaction Documents whenever arising.
“Organizational
Documents” shall mean, with regard to any Dyax Entity: (a) its
certificate of incorporation or other similar document, (b) its by-laws or other
similar document, (c) any certificate of designation or instrument relating to
the rights of preferred stockholders or other equity holders of such Dyax
Entity, and (d) any stockholder rights agreement, registration rights agreement
or other similar agreement relating to such Dyax Entity.
“Patent Office” shall
mean the respective patent office (foreign or domestic) for any patent or patent
application.
“Payment Shortfall”
shall have the meaning set forth in Section
2.06.
“Permitted Liens”
shall mean, collectively, (a) Liens created in favor of Buyer pursuant to
the Security Agreement and any other Transaction Document, and (b) tax
liens or assessments and other governmental levies that are not yet due and
payable or similar non-consensual liens for amounts not yet due and
payable.
“Person” shall mean an
individual, corporation, partnership, association, trust or other entity or
organization, but not including a government or political subdivision or any
agency or instrumentality of such government or political
subdivision.
“Pre-Closing
Royalty Payments” shall mean (a) any and all Included
Product Payments due to
Dyax as a result of Net Sales of the Included Products from January 1, 2010
until the date on which the Closing shall have occurred and (b) the [*****].
* Confidential Treatment
Requested. Omitted portions filed with the Commission.
7
“Regulatory Agency”
shall mean a Government Authority with responsibility for the enforcement of
applicable legislation and supervision of approval marketing, sale and use of
drugs in any country.
“Regulatory Approvals”
shall mean, collectively, all INDs, BLAs, NDAs and other regulatory approvals,
registrations and associated materials (including the product dossier) issued by
the FDA, a Regulatory Agency in any other jurisdiction or any other Government
Authority, and all reports, correspondence and other submissions related thereto
and the regulatory and clinical files and data pertaining thereto, and all
information, data, know-how, formulations, assays or other intellectual property
contained in such INDs, BLAs and the NDAs, together with all amendments,
supplements and updates thereto and all comparable regulatory approvals,
registrations and associated materials.
“Royalty Interests”
shall mean (a) all Included Products Payments from January 1, 2010 and through
the Royalty Interest Termination Date, and any other amounts payable to the
Buyer hereunder pursuant to Section 2.03, (b) the
right to receive Included Reports from Dyax, (c) the right to inspect and audit
the books and records of any Person as contemplated under the Included License
Agreements, and (d) the right to enforce Dyax’s rights under the Included
License Agreements and the right to exercise all remedies of Dyax under the
Included License Agreements, including the right to cause others to perform or
subcontract the exercise of such remedies.
“Royalty Interest Termination
Date” shall mean, with respect to the Included Products, the later of (a)
the date on which all obligations of the Contract Parties under the Included
Licensed Agreements to pay Included Product Payments expire in accordance with
the terms of such agreements and (b) the date on which Dyax’s rights to enforce
the Included License Agreements with respect to Included Product Payments
expires.
“Security Agreement”
shall mean the Security Agreement dated as of the Closing Date substantially in
the form of Exhibit
B by and between Dyax and the Buyer providing for, among other things,
the grant by Dyax in favor of the Buyer of a valid continuing, first perfected
lien on and security interest in, the Collateral described therein.
“Security Interest Release
Date” shall mean for Collateral relating to a particular Included
Product, the date on which no additional amounts are payable under any Included
License Agreement in respect of such Included Product.
“Successor Agreement”
shall mean any successor or follow-on agreement(s) to the Wyeth License
Agreement covering substantially the same subject matter (i.e., covering the
same or substantially the same products) as the Wyeth License
Agreement.
“Term” shall mean the
term of this Agreement, which shall commence on the Effective Date and terminate
on the Royalty Interest Termination Date.
“Term Sheet” shall
mean the letter, dated February 10, 2010, between Dyax and Xxxx Capital
Advisors, LLC (including all exhibits and annexes thereto).
“Territory” shall mean
worldwide.
8
“Third Party” shall
mean a Person that is not an Affiliate of any party to this
Agreement.
“Transaction
Documents” shall mean, collectively, this Agreement, the Security
Agreement (including the Patent Security Agreement executed pursuant thereto)
and the Xxxx of Sale.
“Transfer” or “Transferred” shall
mean any sale, conveyance, assignment, disposition, license, sublicense,
co-promotion agreement, or other form of transfer.
“UCC” shall mean the
Uniform Commercial Code (or any similar or equivalent legislation) as in effect
in any applicable jurisdiction.
“Worldwide Net Sales”
shall mean Net Sales worldwide for the Included Products for which the Buyer has
actually received Included Product Payments pursuant to this
Agreement.
“Wyeth” shall mean
Genetics Institute, Inc., and any successor company by way of merger,
consolidation or otherwise.
“Wyeth Acknowledgement
Letter” has the meaning set forth in Section
5.07.
“Wyeth License
Agreement” shall mean the License Agreement, dated November 22, 2000,
between Dyax and Wyeth, as such agreement may be amended, replaced, succeeded or
substituted from time to, time with the written consent of Buyer.
“Wyeth Licensed
Products” shall have the meaning given to the term “Licensed Product” in
the Wyeth License Agreement, including the products currently marketed as
Xyntha® and Refacto® AF, in any formulation, dosage, concentration, volume or
method of delivery, together with all label expansions, line extensions,
improvements and modifications thereon and thereof from time to time, and any
successor, follow-on or related products, including combination products, for
which any Dyax Entity is entitled pursuant to the Wyeth License Agreement to
receive payments in the Territory.
Section
1.02 Rules of
Construction.
(a) The
definitions of terms herein shall apply equally to the singular and plural forms
of the terms defined.
(b) Whenever
the context may require, any pronoun shall include the corresponding masculine,
feminine and neuter forms.
(c) The
words “include,” “includes” and “including” shall be deemed to be followed by
the phrase “without limitation.”
(d) The
word “will” shall be construed to have the same meaning and effect as the word
“shall.”
9
(e) Unless
the context requires otherwise (i) any definition of or reference to any
agreement, instrument or other document herein shall be construed as referring
to such agreement, instrument or other document as from time to time amended,
supplemented or otherwise modified (subject to any restrictions on such
amendments, supplements or modifications set forth herein), (ii) any reference
herein to any person shall be construed to include such person’s successors and
assigns (subject to any restrictions on such assignments set forth herein),
(iii) the words “herein,” “hereof” and “hereunder,” and words of similar import
shall be construed to refer to this Agreement in its entirety and not to any
particular provision hereof, (iv) all references herein to Articles, Sections,
Schedules and Exhibits shall be construed to refer to Articles and Sections of,
and Schedules and Exhibits to, this Agreement, (v) the words “asset” and
“property” shall be construed to have the same meaning and effect and to refer
to any and all tangible and intangible assets and properties, (vi) any reference
to any law, rule or regulation shall be construed to mean that law, rule or
regulation as amended and in effect from time to time, and (vii) references to
an agreement shall refer to such agreement as amended, restated or novated from
time to time. Where either Party’s consent or approval is required
hereunder, except as otherwise specified herein, such Party’s consent or
approval may be granted or withheld in such Party’s sole
discretion.
(f) Each
covenant in this Agreement shall be given independent effect, and the fact that
any act or omission may be permitted by one covenant and prohibited or
restricted by any other covenant (whether or not dealing with the same or
similar events) shall not be construed as creating any ambiguity, conflict or
other basis to consider any matter other than the express terms hereof in
determining the meaning or construction of such covenants and the enforcement
thereof in accordance with their respective terms.
(g) This
Agreement is being entered into by and between competent and sophisticated
parties who are experienced in business matters and represented by legal counsel
and other advisors, and has been reviewed by the parties and their legal counsel
and other advisors. Therefore, any ambiguous language in this
Agreement will not be construed against any particular party as the drafter of
the language.
ARTICLE
II
PURCHASE
AND SALE OF ROYALTY INTERESTS
Section
2.01 Purchase
and Sale.
Upon the
terms and subject to the conditions set forth in this Agreement, and subject to
the Closing, Dyax agrees to sell, assign, transfer and convey to the Buyer, and
the Buyer agrees to purchase from Dyax, free and clear of all Liens (other than
Liens created in favor of Buyer pursuant to the Security Agreement and any other
Transaction Document), all of Dyax’s and the other Dyax Entities’ respective
rights, title and interests in and to the Royalty Interests.
Section
2.02 Investment;
Other Payments.
(a) In
full consideration for the sale, assignment, transfer and conveyance of the
Royalty Interests, and subject to the terms and conditions set forth herein, the
Buyer shall pay to Dyax, or its designee, upon the Closing:
10
(i) Ten
million dollars ($10,000,000), less the Pre-Closing Royalty Payments, payable at
Closing;
(ii) The
following milestone payment, if any:
(A) Two
million dollars ($2,000,000), payable on or before March 31, 2011, if 2010 Net
Sales exceed [*****];
(B) [*****],
payable on or before March 31, 2011, if 2010 Net Sales are less than or equal to
[*****] but equal or exceed [*****]; or
(C) [*****], payable on or
before March 31, 2011, if 2010 Net Sales are less than [*****] but equal or
[*****] (the milestone payment, if any, made pursuant to clause (A), (B), or (C) above, the “2010 Milestone
Payment”); and
(iii)
The following milestone payment, if any:
(A) Two
million dollars ($2,000,000), less the amount of any 2010 Milestone Payment,
payable on or before March 31, 2012, if 2011 Net Sales exceed [*****];
or
(B) [*****] if (x) 2011 Net
Sales are less than or equal to [*****] but equal or exceed [*****] and (y) the
2010 Milestone Payment specified in Sections
2.02(a)(ii)(A) or (B) was not paid (the
milestone payment, if any, made pursuant to clause (A) or (B) above, the “2011 Milestone
Payment”).
For avoidance of doubt, the maximum
amount of milestone payments, in the aggregate, that may be paid by Buyer to
Dyax under Sections
2.02(a)(ii) and (iii) shall not
exceed [*****].
(b) From
and after the Closing, the Buyer shall be responsible for the first, and only
the first, [*****] of Dyax’s actual, documented out-of-pocket costs (including
patent maintenance fees and reasonable attorneys’ fees and expenses) incurred by
Dyax at any time after the Closing in connection with Dyax’s prosecution and
maintenance of the Dyax Patents. The Buyer shall reimburse Dyax for
such costs referred to in the immediately preceding sentence, up to [*****],
within thirty (30) days of Dyax’s presentation to the Buyer of invoices for such
costs. Dyax shall be responsible for all other costs incurred by or
on behalf of it in connection with Dyax’s prosecution and maintenance of the
Dyax Patents.
(c) All
payments to be made by the Buyer pursuant to Section 2.02(a) and
Section 2.02(b)
shall be paid by wire transfer of immediately available funds to the following
Dyax account (the “Dyax Account”), as
may be changed from time to time by written notice to Buyer:
[*****]
* Confidential Treatment
Requested. Omitted portions filed with the Commission.
11
(d) Dyax
consents to the deduction by the Buyer from the amounts payable under Section 2.02(a)(i) of
the amounts owing to the Buyer pursuant to Section
8.07. In addition, if (i) Dyax has received, prior to the date
on which the Closing shall have occurred, the [*****] payment specified in clause (b) of the
definition of “Pre-Closing Royalty Payment”, then [*****] shall be deducted from
the amounts payable under Section 2.02(a)(i)
and (ii) Dyax has not received the [*****] payment specified in clause (b) of the
definition of “Pre-Closing Royalty Payment” prior to the date on which the
Closing shall have occurred, then such amount shall be deemed included in the
Included Product Payments to be received by the Buyer and shall not be deducted
from the amounts payable under Section
2.02(a)(i). No later than two (2) days prior to the Closing,
Dyax shall provide written notice to Buyer setting forth the amount of the
Pre-Closing Royalty Payment. If after Closing it is discovered that
the actual amount of the Pre-Closing Royalty Payment was greater than the amount
set forth in such notice, then Dyax shall, within two (2) days of learning
thereof, pay to the Buyer the difference.
(e) For
purposes of determining whether any 2010 Milestone Payment or 2011 Milestone
Payment is due, Worldwide Net Sales shall be determined [*****].
Section
2.03 Included
Products Payments.
(a) Payments.
(i) Pursuant
to the Wyeth Letter described in Section 6.02(f), Dyax
has instructed Wyeth to pay all Included Products Payments due and payable under
the terms of the Wyeth License Agreement after the Effective Date in respect of
the Included Products (including pursuant to Section 3.2, Section 3.3, Section
3.4 and Section 3.5 of the Wyeth License Agreement) directly to
Buyer. Notwithstanding the Wyeth Letter, Dyax agrees that if and to
the extent it receives any Included Products Payments due and payable under the
terms of the Wyeth License Agreement or under the terms of any Included License
Agreement after the Effective Date in respect of the Included Products
(including pursuant to Section 3.2, Section 3.3, Section 3.4 and Section 3.5 of
the Wyeth License Agreement), such amounts shall be promptly (and in any event
within five (5) Business Days) paid over to Buyer.
(ii) If
(A) an Accelerated Payment Triggering Event occurs and (B) Buyer, in its
absolute and sole discretion, notifies Dyax in writing within 10 Business Days
following Buyer’s first learning of any Accelerated Payment Triggering Event
that Buyer wishes to receive the Accelerated Payment from Dyax, then Dyax shall
pay to the Buyer the Accelerated Payment, in immediately available funds, within
10 Business Days following receipt of the written notice from Buyer referred to
in clause (B) of this sentence. The Accelerated Payment shall not be
a penalty but shall constitute liquidated damages (in addition to any other
remedies available at law or in equity). The amount of liquidated
damages in this subsection (ii) is so fixed and agreed upon because of the
impracticability and difficulty in fixing and ascertaining the actual damages
that the Buyer would sustain in the event of a termination of the Wyeth License
Agreement by the Contract Party thereto as a result of an Accelerated Payment
Triggering Event. Upon payment in full of the Accelerated Payment, this
Agreement shall be immediately terminated, and thereafter (i) Dyax shall have no
further obligation to Buyer, and (ii) Buyer shall immediately release any Liens
on the Royalty Interests and other Collateral described in the Security
Agreement.
(iii) Dyax
further agrees that one hundred percent (100%) of amounts received by Dyax as a
damages award (or pursuant to a settlement agreement) in connection with an
infringement claim or other cause of action involving any of the Dyax IP (net of
litigation costs) in the Territory related to the Included Products and/or as
payments pursuant to indemnification obligations to Dyax related to the Included
Products, shall be promptly (and in any event within five (5) Business Days)
paid over to Buyer.
* Confidential Treatment
Requested. Omitted portions filed with the Commission.
12
(b) Amounts
payable pursuant to this Section 2.03 shall
not be subject to any setoff or other deduction by reason of any amounts
otherwise payable under this Agreement or any other agreement, provided that the
Buyer acknowledges and agrees that Wyeth may deduct [*****].
(c) Without
limitation of Section
5.08(f), in the event that Wyeth’s license under the Wyeth License
Agreement is converted to a non-exclusive license and the royalties paid by
Wyeth under the Wyeth License Agreement are reduced, Dyax further agrees that
one hundred percent (100%) of any royalties paid to Dyax or any Dyax Entity by a
Third Party in respect of any license or other rights granted to such Third
Party under the Dyax IP [*****] use shall be promptly (and in any event within
five (5) Business Days) paid over to Buyer.
(d) Any
payments to be made by Dyax or any other Dyax Entity to the Buyer hereunder or
under any other Transaction Document shall be made by wire transfer of
immediately available funds to the Buyer Account.
(e) All
payments payable by Dyax or any other Dyax Entity to Buyer pursuant to this
Section 2.03
shall be made without any deduction or withholding on account of any tax
imposed, levied, collected, withheld or assess by or within the United States,
any political subdivisions in or of the United States, or any foreign country or
other jurisdiction.
Section
2.04 No
Assumed Obligations.
Notwithstanding any provision in this
Agreement or any other writing to the contrary, the Buyer is acquiring only the
Royalty Interests and is not assuming any liability or obligation of Dyax or any
Dyax Entity of whatever nature, whether presently in existence or arising or
asserted hereafter, whether under any Included License Agreement, Transaction
Document or otherwise, including all tax liens or assessments and other
governmental levies that are not yet due and payable or similar non-consensual
liens for amounts not yet due and payable in respect of the Royalty Interests on
or prior to the Closing Date, except for the Buyer’s obligation to reimburse
Dyax for its reasonable out-of-pocket costs and expenses pursuant to Section 2.02(b),
Sections 5.01,
5.02(e), 5.08(d), 5.08(e), 5.08(g), 5.08(h), 5.08(i), 5.08(j), and 5.08(k). All
such liabilities and obligations shall be retained by and remain obligations and
liabilities of Dyax (the “Excluded Liabilities and
Obligations”).
* Confidential Treatment
Requested. Omitted portions filed with the Commission.
13
Section 2.05 Sale.
Dyax, the
other Dyax Entities and the Buyer intend that the sale, assignment, transfer and
conveyance of the Royalty Interests pursuant to this Agreement shall be a sale
and not a financing transaction, borrowing or loan; and accordingly Dyax and the
other Dyax Entities will treat the conveyance of the Royalty Interests as a sale
of an “account” or “payment intangible” in accordance with the UCC and Dyax and
the other Dyax Entities hereby authorize the Buyer to file financing statements
(and continuation statements with respect to such financing statements when
applicable) naming Dyax as a seller and the Buyer as the buyer of the accounts
and payment intangibles related to the Royalty Interests. If,
notwithstanding the intent of Dyax and the Buyer in this regard, the sale,
assignment, transfer and conveyance of the Royalty Interests contemplated by
this Agreement is held not to be a sale, this Agreement shall constitute a
valid, perfected, first priority security agreement and Dyax does hereby grant
to the Buyer a first priority security interest in and to all of Dyax’s right,
title and interest in, to and under the Royalty Interests.
Section 2.06 Offsets.
In the event that any Contract Party
offsets all or any part of the Included Product Payments against any amounts
owed by Dyax to such Contract Party and such offset actually reduces the amount
of any payment on the Royalty Interests (any such reduction, a “Payment Shortfall”),
Dyax will pay the Buyer the amount of the Payment Shortfall within three (3)
Business Days. After Dyax makes the payment to the Buyer contemplated
in the preceding sentence, Dyax shall be entitled to retain any amount
subsequently recovered from such Contract Party in respect of such
offset.
ARTICLE
III
REPRESENTATIONS
AND WARRANTIES
OF
DYAX
Dyax
hereby represents and warrants to the Buyer the following as of the Effective
Date and as of the Closing Date:
Section 3.01 Organization.
Dyax is
incorporated and validly existing under the laws of the jurisdiction of its
incorporation or organization and has all corporate powers and all licenses,
authorizations, consents and approvals required to carry on its business as now
conducted and as proposed to be conducted in connection with the transactions
contemplated hereby and by the other Transaction Documents.
14
Section
3.02 Corporate
Authorization.
Dyax has
all necessary power and authority to enter into, execute and deliver this
Agreement and the other Transaction Documents to which it is a party and to
perform all of the obligations to be performed by it hereunder and thereunder
and to consummate the transactions contemplated hereunder and
thereunder. This Agreement and the other Transaction Documents have
been duly authorized, executed and delivered by Dyax and this Agreement and the
other Transaction Document constitutes the valid and binding obligation of Dyax,
enforceable against each such Person in accordance with their respective terms
subject to bankruptcy, insolvency, reorganization or similar laws affecting
creditors’ rights generally or general equitable principles. No limit
on the powers of Dyax will be exceeded as a result of the grant of the Security
Agreement or other Transaction Documents or indemnities contemplated by the
Transaction Documents.
Section
3.03 Governmental
Authorization.
The
execution and delivery by Dyax of this Agreement and the other Transaction
Documents to which it is a party, and the performance by Dyax of its obligations
hereunder and thereunder, does not require any notice to, action or consent by,
or in respect of, or filing with, any Government Authority, except for
(i) the release of the Xxxxx Liens, which release has been obtained by Dyax
and which release is effective as of the Closing, and (ii) the filing of
financing statements under the UCC and filings with the United States Patent and
Trademark Office with respect to the Collateral pursuant to the Transaction
Documents.
Section 3.04 Ownership.
(a) Dyax
is the sole holder of all of those assets that are required to produce or
receive all of the Included Products Payments, in each case free and clear of
any and all Liens, except for the Xxxxx Liens, which shall be released in full
as of the Closing, and Permitted Liens. Within three (3) Business
Days following the Closing, financing termination statements will be filed under
the UCC, and releases will be recorded with the United States Patent and
Trademark Office, for all Xxxxx Liens that have been filed or recorded prior to
the date hereof under the UCC or with the United States Patent and Trademark
Office with respect to the Dyax IP, the Included License Agreements and the
Royalty Interests. True and correct copies of such financing
termination statements and releases have been provided to the
Buyer. Except pursuant to the Xxxxx Agreement (until termination of
the Xxxxx Liens on the Closing), no Person other than Dyax has any right to
receive the payments payable under any Included License Agreement or any
Included Products Payments other than, in respect of the Royalty Interests, the
Buyer. Dyax has not transferred, sold, or otherwise disposed of, or
agreed to transfer, sell, or otherwise dispose of any Dyax IP or any portion of
their respective rights to receive payment of Included Products Payments other
than as contemplated by this Agreement. Dyax’s rights in and to the
Included Product Payments are valid, subsisting and enforceable.
(b) Except
for the Xxxxx Liens, which shall be released on the Closing, Dyax, immediately
prior to the sale of the Royalty Interests, owns, and is the sole holder of, all
the Royalty Interests. No other Dyax Entity or any other Person
(except for the Xxxxx Liens, which shall be released on the Closing) has any
right, title, interest or claim in or to the Royalty Interests or any portion
thereof. The Royalty Interests and all of the rights of Dyax in and
to the Dyax IP, under the Included License Agreements and all other rights in
and to the other Collateral are free and clear of any and all Liens, except
Permitted Liens. None of the Collateral is in the possession of Xxxxx
Healthcare Royalty Partners, L.P. Dyax has the full right to sell,
transfer, convey and assign to the Buyer all of Dyax’s rights and interests in
and to the Royalty Interests being sold, transferred, conveyed and assigned to
the Buyer pursuant to this Agreement without any requirement to obtain the
consent of any Person. By the delivery to the Buyer of the executed
Xxxx of Sale, Dyax shall transfer, convey and assign to the Buyer all Dyax’s
rights and interests in and to the Royalty Interests free and clear of any
Liens.
15
Section
3.05 Financial
Statements; Material Adverse Change.
The
Financial Statements are complete and accurate in all material respects, were
prepared in conformity with GAAP applied on a consistent basis during the
periods involved and present fairly in all material respects, in accordance with
applicable requirements of GAAP, the consolidated financial position and the
consolidated financial results of the operations of Dyax and its subsidiaries as
of the dates and for the periods covered thereby and the consolidated statements
of cash flows of Dyax and its subsidiaries for the periods presented
therein. Since January 1, 2010, there has been no Material Adverse
Change, and no event that could reasonably be expected to cause or result in a
Material Adverse Change has occurred.
Section
3.06 No
Undisclosed Liabilities.
Except
for those liabilities identified in the Financial Statements there are no
material liabilities of any Dyax Entity taken as a whole or separately of any
kind whatsoever, whether accrued, contingent, absolute, determined or
determinable.
Section 3.07 Solvency.
Dyax has
not applied for an order, and no order is made, declaring it bankrupt, or
granting it a moratorium or suspension of payments, and no liquidator is
appointed for and no other equivalent event has occurred with respect to it or
any substantial part of its assets in any jurisdiction or is insolvent as
defined in the United States Bankruptcy Code or in the fraudulent conveyance or
fraudulent transfer statutes of the States of Delaware. Dyax is not
insolvent as defined in any statute of the U.S. Bankruptcy Code or in the
fraudulent conveyance or fraudulent transfer statutes of any applicable state of
incorporation. Assuming consummation of the transactions contemplated
by this Agreement and the other Transaction Documents, (a) the present fair
saleable value of each Dyax Entity’s assets is greater than the amount required
to pay its debts as they become due, (b) no Dyax Entity has unreasonably small
capital with which to engage in its business, and (c) no Dyax Entity has
incurred, or has present plans to or intends to, incur, debts or liabilities
beyond its ability to pay such debts or liabilities as they become absolute and
matured. Dyax is entering into this Agreement with no contemplation
of insolvency and with no intent to hinder, delay or defraud any of its present
or future creditors.
Section 3.08 Litigation.
(a) There
is no (i) action, suit, arbitration proceeding, claim, investigation or other
proceeding pending or, to the Knowledge of Dyax, threatened against Dyax or any
other Dyax Entity or any of its directors or officers relating to Dyax or any
other Dyax Entity or (ii) any governmental inquiry pending or, to the Actual
Knowledge of Dyax, threatened against Dyax or any other Dyax Entity or any of
its directors or officers, that reasonably could be expected to result in a
Material Adverse Change or in the breach of Section
3.07.
(b) [*****]
* Confidential Treatment
Requested. Omitted portions filed with the Commission.
16
(c) [*****]
Section
3.09 Compliance
with Laws.
No Dyax
Entity (a) is in violation of, has violated, or to the Knowledge of Dyax, is
under investigation with respect to, or (b) has been threatened to be charged
with or been given notice of any violation of, any law, rule, ordinance or
regulation of, or any judgment, order, writ decree, permit or license entered by
any Government Authority applicable to the Royalty Interests or which could
reasonable be expected to adversely affect the consummation of the transactions
contemplated by the Transaction Documents or the performance by Dyax of its
obligations under the Transaction Documents.
Section 3.10 Conflicts.
Neither
the execution and delivery of this Agreement or any other Transaction Document
nor the performance or consummation of the transactions contemplated hereby or
thereby will: (a) contravene, conflict with, result in a breach or
violation of, constitute a default under, or accelerate the performance provided
by, in any material respects any provisions of: (i) any law, rule, ordinance or
regulation of any Government Authority, or any judgment, order, writ, decree,
material permit or license of any Government Authority, to which any Dyax Entity
or any of their respective assets, including the Dyax IP, or properties may be
subject or bound; or (ii) any contract, agreement, commitment or instrument to
which any Dyax Entity is a party or by which any Dyax Entity or any of their
respective assets or properties is bound or committed, including the Wyeth
License Agreement and the Xxxxx Agreement; (b) contravene, conflict with, result
in a breach or violation of, constitute a default under, or accelerate the
performance provided by, in any respects any provisions of the certificate of
incorporation or by-laws (or other Organizational Documents) of any Dyax Entity;
(c) except for the filing of the UCC-1 financing statements required hereunder
and filings with the United States Patent and Trademark, require any
notification to, filing with, or consent of, any Person or Government Authority;
(d) give rise to any right of termination, cancellation or acceleration of any
right or obligation of any Dyax Entity or any other Person or to a loss of any
benefit relating to the Included Products Payments or of any Included License
Agreement; or (e) result in the creation or imposition of any Lien on (i) the
assets or properties of any Dyax Entity or (ii) the Royalty Interests or any
other Collateral, other than, with respect to clauses (e)(i) and
(e)(ii) above,
pursuant to the Security Agreement.
Section
3.11 Material
Contracts.
None of
the Dyax Entities is party to any agreement pursuant to which any Dyax Entity
in-licenses any Dyax IP from a third party or has out-licensed the Dyax IP to a
third party (other than to Wyeth pursuant to the Wyeth License
Agreement.
Section
3.12 IP.
(a) The
Dyax Entities have provided the Buyer all material information in their
possession, or otherwise known to them, with respect to validity and
enforceability of the Dyax IP, Third Party intellectual property that may affect
or cover the Dyax Product and its use.
* Confidential Treatment
Requested. Omitted portions filed with the Commission.
17
(b) Schedule 3.12(b)
lists the Dyax Patents. For each Dyax Patent listed on Schedule 3.12(b),
Dyax has identified, where applicable, (A) the owner, (B) the countries in which
such listed item is valid, patented or registered or in which an application for
patent or registration is pending, (C) the application number, (D) the patent
number, (E) the expiration date thereof, as applicable, excluding any patent
term extensions or supplemental protection certificates, and (F) the date on
which any applicable maintenance, annuity or renewal fee is due or
payable.
(c) To
the Actual Knowledge of Dyax, each item of Dyax IP listed on Schedule 3.12(b) is
valid, enforceable and subsisting.
(d) Schedule 3.12(d)
lists all agreements, whether oral or written, express or implied, including
licenses, options, franchise, distribution, marketing and manufacturing
agreements, supply agreements, sponsorships, royalty agreements, agreements not
to enforce, consents, settlements, assignments, security interests, liens and
other encumbrances or mortgages (other than the Permitted Liens), and any
amendments(s) renewal(s), novation(s) and termination(s) pertaining thereto,
which relates to the Dyax IP or the Dyax Product, including all Included License
Agreements. There are no unpaid fees or royalties under any agreement
listed on Schedule
3.12(d) that have become due as of the Closing Date or are expected to
become overdue, except as disclosed on Schedule
3.12(d).
(e) No
Dyax Entity has received or otherwise been the beneficiary of any written
opinions of counsel with respect to infringement, non-infringement or invalidity
of third party intellectual property with respect to the Dyax IP or the Dyax
Product. To the Actual Knowledge of Dyax, there are no pending
published or unpublished United States, international or foreign national patent
applications owned by any other Person, which, if issued, would limit or
prohibit, in any material respect, the use of the Dyax IP or the Dyax
Product.
(f) Dyax
owns sole, exclusive, valid and unencumbered title to the Dyax IP and has not
granted any Liens on or to any of the Dyax IP or Included License Agreements,
all right title and interest in all of the Dyax IP, free and clear of any and
all Liens, except for the Xxxxx Liens, which shall be released in full as of the
Closing, and Permitted Liens. The inventors of the Dyax IP have
assigned all their rights to a Dyax. Dyax has not Transferred any
Dyax Patents or Dyax Know-How to any Third Party.
(g) There
are no unpaid maintenance or renewal fees currently overdue for any of the Dyax
Patents, and except as disclosed on Schedule 3.12(g), no
application or registration for any Dyax Patent has lapsed or been abandoned,
cancelled or expired.
(h) Each
Dyax Entity (to the extent such Dyax Entity is an applicant or is otherwise
involved in the patent prosecution in respect of any patent included in the Dyax
IP) and, to the Knowledge of Dyax, each inventor of the patents included in the
Dyax IP or his or her employer, has complied in all material respects with all
applicable Patent Office duties of candor and good faith in dealing with any
Patent Office, including the duty to disclose to any Patent Office all
information known to be material to the patentability of each of the patents and
patent applications included in the Dyax IP.
18
(i)
No inventor of any patent
contained in the Dyax IP was or is under any conflicting obligation with any
academic institution or other Third Party that would affect Dyax’s title or
license to any such patent.
(j)
Subsequent to the
issuance of the Dyax Patents, no Dyax Entity, nor to the Knowledge of any Dyax
Entity, the Contract Party to the Included License Agreements, has filed any
disclaimer or made or permitted any other voluntary reduction in the scope of
such Dyax Patents.
(k) No
payments by any Dyax Entity or any Contract Party are, or at any time in the
future are expected to become due, to any other Person in respect of the Dyax
IP.
(l)
No Dyax Entity and, to the
Knowledge of any Dyax Entity, no Contract Party under any Included License
Agreement, has undertaken or omitted to undertake any acts, and to the Knowledge
of any Dyax Entity, no circumstance or grounds exist, that would invalidate,
reduce or eliminate, in whole or in part, the enforceability or scope of any of
the Dyax IP or Dyax’s entitlement to exclusively exploit the Dyax
IP.
(m) There
is not, and has not been, any pending, decided or settled opposition,
interference, reexamination, injunction, claim, lawsuit, proceeding, hearing,
investigation, complaint, arbitration, mediation, demand, International Trade
Commission investigation, decree, or any other dispute, disagreement, or claim
challenging the legality, validity, enforceability or ownership of any Dyax IP
(collectively referred to hereinafter as “Disputes”). No
Dyax Entity has received any written notice or claim of any such
Dispute. To the Knowledge of Dyax, no such Dispute has been
threatened, no circumstances or grounds exist that would give rise to such a
Dispute, and, to the Actual Knowledge of Dyax, there exists no circumstances or
grounds upon which any such claim could be asserted. No Dyax IP is
subject to any outstanding injunction, judgment, order, decree, ruling charge,
settlement or other disposition of Dispute, and each Dyax Entity has fully
complied with, paid and otherwise satisfied all such obligations.
(n) Dyax
has taken all [*****] measures and precautions necessary to protect and maintain
(i) the confidentiality of all Dyax IP (except such Dyax IP whose value would be
unimpaired by public disclosure) and (ii) the value of all Dyax IP.
(o) To
the Knowledge of Dyax, Wyeth uses the Dyax Product and the Dyax IP in the
manufacture of Wyeth Licensed Products, and Dyax has no Actual Knowledge that
Wyeth is planning to or intends to cease the use of the Dyax Product or the Dyax
IP in the manufacture of the Wyeth Licensed Products.
Section
3.13 Regulatory.
Dyax has not received from Wyeth (or
any of its predecessors who were a party to the Wyeth License Agreement) any
correspondence, files or other information (a) relating to any Regulatory
Approvals for the Wyeth Licensed Products, (b) regarding nonclinical, clinical
or manufacturing activities or any notices and forms received from Regulatory
Agencies relating to compliance, developmental (including safety, efficacy and
potency), marketing, promotion and manufacturing activities concerning Xyntha or
Refacto AF, (c) relating to adverse experience reports or data relating to
Xyntha or Refacto AF, including any correspondence, reports or other documents
relating thereto or (d) that would indicate that any Regulatory Agency (i) is
likely to revise or revoke any current approval granted by any such Regulatory
Agency with respect to Xyntha or Refacto AF; (ii) is likely to pursue compliance
actions against Wyeth or a suspension, recall or withdrawal of Xyntha or Refacto
AF from the market(s); or (iii) is likely to pursue any compliance action with
respect to manufacture of Xyntha or Refacto AF or active pharmaceutical
ingredient thereof. To the Actual Knowledge of Dyax, (x) there has
been no indication that any Regulatory Agency has any material concerns with
Xyntha or Refacto AF or may not approve Xyntha or Refacto AF, and (y) Xyntha and
Refacto AF has not suffered any material adverse events in any clinical
trial.
* Confidential Treatment
Requested. Omitted portions filed with the Commission.
19
Section
3.14 Subordination.
The
claims and rights of the Buyer created by this Agreement and any other
Transaction Document in and to the Royalty Interests are not and shall not be
subordinated to any creditor of Dyax or to any other Person.
Section
3.15 Place of
Business.
The
principal place of business and chief executive office of Dyax are set forth on
Schedule
3.15.
Section
3.16 Broker’s
Fees.
Dyax has
not taken any action which would entitle any Person to any commission or
broker’s fee in connection with the transactions contemplated by this Agreement
or the other Transaction Documents.
Section
3.17 Other
Information.
The
Financial Model has been prepared by Dyax in good faith and based upon
assumptions that Dyax believes to be commercially reasonable; it being
understood and agreed that Dyax makes no guarantee as to the accuracy of the
Financial Model forecast.
Section
3.18 Wyeth License
Agreement.
(a) With
respect to the Wyeth License Agreement:
(i) The
Wyeth License Agreement is in full force and effect and has not been impaired,
waived, altered or modified in any respect.
(ii) The
Contract Party under the Wyeth License Agreement has not been released, in whole
or in part, from any of its obligations thereunder such Included License
Agreement.
(iii) There
has been no correspondence or any other communication sent by or on behalf of
any Dyax Entity to, or received by or on behalf of any Dyax Entity from, any
Contract Party, the subject matter of which has resulted in or would reasonably
be expected to result in a Material Adverse Change and no breach or dispute has
occurred with respect to any payment or other obligations.
20
(iv) No
Dyax Entity has received (A) any notice of any Contract Party’s intention to
terminate the Wyeth License Agreement in whole or in part or (B), any notice
requesting any amendment, alteration or modification of the Wyeth License
Agreement or any sublicense or assignment thereunder that has not either been
withdrawn in writing or reflected in the Wyeth License Agreement.
(v) To
the Knowledge of Dyax, nothing has occurred and no condition exists that would
reasonably be expected to adversely affect the right of any Dyax Entity to
receive any payments payable or materials or products provided under the Wyeth
License Agreement. No Dyax Entity and, to the Actual Knowledge of Dyax, no
Contract Party has taken any action or omitted to take any action, that would
reasonably be expected to adversely impact the sale of the Included Products or
the Included Products Payments.
(vi) [*****]
(vii) The
Wyeth License Agreement is the entire agreement between the applicable Dyax
Entity and the Contract Party thereto relating to the subject matter thereof,
and Dyax has provided true and correct copies of the Wyeth License Agreement is
to Buyer, including all amendments thereto.
(viii) The
Wyeth License Agreement is valid and binding on Dyax, and to the Knowledge of
Dyax the Contract Party thereto, enforceable against Dyax and to the Knowledge
of Dyax such Contract Party in accordance with its terms and is in full force
and effect. The execution, delivery and performance of the Wyeth
License Agreement was and is within the respective corporate powers of Dyax and,
to the Knowledge of Dyax, the Contract Party thereto. The Wyeth
License Agreement was duly authorized by all necessary action on the part of,
and validly executed and delivered by, Dyax and, to the Knowledge of Dyax, the
Contract Party thereto. There is no breach or default, or event which
upon notice or the passage of time, or both, could give rise to any breach or
default, in the performance of the Wyeth License Agreement by Dyax or, to the
Knowledge of Dyax, the Contract Party thereto.
(ix) Other
than the Wyeth License Agreement and that [*****] Dyax has not entered into any
agreement with any Affiliate of Wyeth or any other Person relating to the Dyax
IP, the Dyax Product or any Included Products.
(x) The
representations and warranties made by Dyax under the Wyeth License Agreement
were as of the date made true and correct. The Dyax IP is necessary
for Wyeth to make the Wyeth Licensed Products.
(xi) To
Dyax's Knowledge, all Included License Agreements entered into by Dyax have been
negotiated on an arms-length basis.
* Confidential Treatment
Requested. Omitted portions filed with the Commission.
21
(xii) No
note, account, instrument, document, contract right, general intangible, chattel
paper or other form of obligation other that which has been assigned to Buyer
hereunder exists which evidences any Royalty Interests.
(xiii) As
of the date hereof, no Contract Party to an Included License Agreement has any
defense or claim against any Dyax Entity regardless of whether such defense or
claim arises under an Included License Agreement or otherwise.
(b) To
Dyax’s Actual Knowledge, Wyeth has not entered into any licenses, sublicenses,
co-marketing arrangements, co-distribution arrangements or any other agreements
or arrangements with a Third Party relating to the Wyeth Licensed Products where
Net Sales for the Licensed Products are not booked by Wyeth.
(c) [*****]
(d) To
Dyax’s Knowledge, Wyeth’s obligation to pay royalties for Net Sales of Wyeth
Licensed Products and to pay other Included Product Payments under the Wyeth
License Agreement is valid, binding and legally enforceable, and there exists no
fact, law, condition or other circumstance that could entitle Wyeth to
reasonably challenge any such obligations.
(e) Under
the terms of the Wyeth License Agreement, Wyeth’s obligation to pay royalties
for Net Sales of each Wyeth Licensed Product shall be in effect, on a
country-by-country basis, for no less than fifteen (15) years from the First
Commercial Sale (as defined in the Wyeth License Agreement) of such Wyeth
Licensed Product in such country.
Section 3.19 Tax.
Each Dyax
Entity has paid all sales, use and income taxes on the Included Product Payments
when due and is in compliance with all tax laws and regulations.
ARTICLE
IV
REPRESENTATIONS
AND WARRANTIES OF THE BUYER
The Buyer
represents and warrants to Dyax the following:
Section 4.01 Organization.
The Buyer
is a limited partnership, duly formed, validly existing and, to the extent
legally applicable, in good standing under the laws of the
Delaware. The Buyer has all powers and all licenses, authorizations,
consents and approvals required to carry on its business as now conducted and as
proposed to be conducted in connection with the transactions contemplated hereby
and by the other Transaction Documents.
* Confidential Treatment
Requested. Omitted portions filed with the Commission.
22
Section
4.02 Authorization.
The Buyer
has all necessary power and authority to enter into, execute and deliver this
Agreement and the other Transaction Documents to which it is a party and to
perform all of the obligations to be performed by it hereunder and thereunder
and to consummate the transactions contemplated hereby and
thereby. This Agreement has been duly authorized, executed and
delivered by the Buyer and constitutes the valid and binding obligation of the
Buyer, enforceable against the Buyer in accordance with its terms, subject to
bankruptcy, insolvency, reorganization, moratorium, ad hoc representative
appointment, conciliation, safeguard proceedings, judicial receivership, or
similar laws affecting creditors’ rights generally and general equitable
principles.
Section
4.03 Broker’s
Fees.
The Buyer
has not taken any action that would entitle any Person to any commission or
broker’s fee in connection with the transactions contemplated by this
Agreement.
Section 4.04 Conflicts.
Neither
the execution and delivery of this Agreement or the other Transaction Documents
nor the performance or consummation of the transactions contemplated hereby or
thereby will: (a) contravene, conflict with, result in a breach or violation of,
constitute a default under, or accelerate the performance provided by, in any
material respects any provisions of: (i) any law, rule or regulation of any
Government Authority, or any judgment, order, writ, decree, permit or license of
any Government Authority, to which the Buyer or any of its assets or
properties may be subject or bound; or (ii) any material contract, agreement,
commitment or instrument to which the Buyer is a party or by which the Buyer or
any of its assets or properties is bound or committed; or (b) contravene,
conflict with, result in a breach or violation of, constitute a default under,
or accelerate the performance provided by, in any respects any provisions of
organizational or constitutional documents of the Buyer.
Section 4.05 Consents.
The
execution and delivery by the Buyer of this Agreement and the other Transaction
Documents to which it is a party, and the performance by the Buyer of its
obligations hereunder and thereunder, does not require any notice to, action or
consent by, or in respect of, or filing with, any Government Authority or
Person.
ARTICLE
V
COVENANTS
During
the Term, the following covenants shall apply:
23
Section
5.01 Ongoing
Rights and Obligations.
(a) Unless
otherwise directed by Buyer, and subject to the other provisions of this Article V, Dyax
shall pursue all rights and remedies available to it under any Included
License Agreement. Except as provided in Section 2.02(b), and
except with respect to Dyax’s exercise of its remedies for breach by Wyeth of
Article V of the Wyeth License Agreement or indemnification under Section 7.2 of
the Wyeth License Agreement, Buyer shall be responsible for any and all
reasonable, out-of-pocket costs and expenses incurred by Dyax in connection
therewith and shall fully and promptly reimburse Dyax if and to the extent that
any such costs or expenses are incurred by Dyax and submitted to the Buyer for
approval by Dyax prior to being incurred.
(b) Unless
otherwise directed by Buyer, Dyax shall (i) perform, at its sole cost and
expense (except as provided in Section 2.02(b)), all
ongoing obligations required of it under the Wyeth License Agreement (including
its obligation to indemnify Wyeth under Section 7.2 of the Wyeth License
Agreement) and any other Included License Agreement, and (ii) upon the
occurrence of a material breach of any Included License Agreement by any other
party thereto, which is not cured as provided therein, Dyax shall use its best
efforts to seek to enforce all of its rights and remedies thereunder; provided however, that except
as provided in Section
2.02(b), Buyer shall be responsible for any and all reasonable out of
pocket costs and expenses (including reasonable attorneys’ fees and expenses)
arising in connection with Dyax’s enforcement of its rights and remedies under
the Included License Agreement and shall fully and promptly reimburse Dyax if
and to the extent that any such costs or expenses are incurred by Dyax and
preapproved by the Buyer prior to being incurred by Dyax.
(c) Furthermore,
upon agreement by the Parties, the Buyer may, to the extent permitted by the
terms of the relevant Included License Agreement, elect (in its sole discretion
and at it expense) to directly (in Dyax’s name if necessary) (i) pursue all
rights and remedies available to Dyax under such Included License Agreement, and
(ii) perform all ongoing obligations required of Dyax under such Included
License Agreement.
(d) Without
limiting those conditions to the Closing set forth herein, each Dyax Entity
shall use commercially reasonable best efforts to obtain any required consents,
acknowledgements, certificates or waivers so that the transactions contemplated
by this Agreement or any other Transaction Document may be consummated and shall
not result in any default or breach or termination of any of the Included
License Agreements. All expenses (including attorneys’ fees and
expenses) incurred in connection with obtaining such consents, acknowledgements,
certificates or waivers shall be borne by Dyax.
Section
5.02 Access;
Books and Records.
(a) Within
[*****] after receipt by an Dyax Entity of notice of any action, claim,
investigation or proceeding (commenced or threatened) relating to the
transactions contemplated by this Agreement, any other Transaction Document, the
Royalty Interests or any Included License Agreements or any Included Product,
Dyax shall inform the Buyer of the receipt of such notice and the substance of
such action, claim, investigation or proceeding and, if in writing shall furnish
the Buyer with a copy of such notice and any related materials with respect to
such action, claim, investigation or proceeding.
(b) Each
Dyax Entity shall keep and maintain, or cause to be kept and maintained, at all
times full and accurate books of account and records adequate to correctly
reflect all payments paid and/or payable with respect to the Royalty Interests
and all deposits made into the Deposit Account.
* Confidential Treatment
Requested. Omitted portions filed with the Commission.
24
(c) The
Buyer and any of the Buyer Consultants shall have the right, from time to time,
to visit Dyax’ offices and properties where Dyax keep and maintain their books
and records relating or pertaining to Included Products Payments, the Royalty
Interests and the other Collateral for purposes of conducting an audit of such
books and records, and to inspect, copy and audit such books and records, during
normal business hours, and, [*****] written notice given by the Buyer to a Dyax
Entity, the Dyax Entity will provide the Buyer and any of the Buyer Consultants
reasonable access to such books and records, and shall permit the Buyer and any
of the Buyer Consultants to discuss the business, operations, properties and
financial and other condition of Dyax relating or pertaining to the Royalty
Interests and the other Collateral with officers of such parties, and with their
independent certified public accountants. The Buyer’s visits to
Dyax’s offices pursuant to this Subsection (c) shall
occur not more than two (2) times for Dyax per calendar year; provided, however, that the
Buyer may so visit more frequently to the extent that there has occurred an
event that has resulted in a Material Adverse Change, or a reasonably
foreseeable consequence of which is a Material Adverse Change, and the Buyer’s
visit or visits to Dyax’ offices in connection therewith are for purposes
related to such event.
(d) To
the extent that either the Buyer or Dyax has determined that there is a
discrepancy as to the amounts paid to the Buyer hereunder for such calendar
year, then the Person who has made such determination may notify the other in
writing of such discrepancy indicating in reasonable detail its reasons for such
determination (the “Discrepancy
Notice”). In the event that either the Buyer or Dyax deliver
to the other party a Discrepancy Notice, the Buyer and Dyax shall meet within
ten (10) Business Days (or such other time as mutually agreed by the parties)
after the receiving party has received a Discrepancy Notice to resolve in good
faith such discrepancy. If the discrepancy has been resolved and, as
a result thereof, it is determined that a payment is owing by the Buyer to Dyax
or by Dyax to the Buyer, then the party owing such payment shall promptly pay
such payment to the other party. If, within forty-five (45) days
after receipt of the Discrepancy Notice, Dyax and the Buyer cannot resolve any
such discrepancies, then the Buyer and Dyax shall promptly instruct their
respective firms of independent certified public accountants to select, within
five (5) Business Days thereafter, a third nationally recognized accounting firm
(the “Independent
Accountants”). After offering Dyax and its representatives and
the Buyer and its representatives the opportunity to present their positions as
to the disputed items, which opportunity shall not extend for more than ten (10)
calendar days after the Independent Accountants have been selected, the
Independent Accountants shall review the disputed matters and the materials
submitted by Dyax and the Buyer and, as promptly as practicable, deliver to Dyax
and the Buyer a statement in writing setting forth its determination of the
proper treatment of the discrepancies as to which there was disagreement, and
that determination shall be final and binding upon the parties hereto without
any further right of appeal. If Dyax has delivered the Discrepancy
Notice that has resulted in the selection of the Independent Accountants, Dyax
shall bear all the charges of the Independent Accountants. If the
Buyer has delivered the Discrepancy Notice that has resulted in the selection of
the Independent Accountants, the Buyer shall bear all the charges of the
Independent Accountants unless the Independent Accountants determine that the
amounts paid to the Buyer for the applicable calendar year underpaid the Buyer
by an amount equal or in excess of [*****] of the amounts determined to be due
to the Buyer for such calendar year, in which event Dyax shall bear all of the
charges of the Independent Accountants. [*****].
* Confidential Treatment
Requested. Omitted portions filed with the Commission.
25
(e) To
the extent any Dyax Entity has the right to perform or cause to be performed
inspections or audits under any of the Included License Agreements regarding
payments payable and/or paid to any Dyax Entity thereunder (each, a “License Party
Audit”), Dyax shall, at the request and expense of the Buyer, cause such
License Party Audit to be promptly performed. In conducting a License Party
Audit, Dyax shall engage an independent public accounting firm and other
personnel directed by the Buyer. Promptly after completion of any
License Party Audit (whether or not requested by the Buyer), Dyax shall promptly
deliver to the Buyer an Audit Report in respect of such License Party
Audit.
Section
5.03 Confidentiality;
Public Announcement.
(a) Except
as set forth in Section 5.03(b), all
Confidential Information furnished by the Buyer to any Dyax Entity or by any
Dyax Entity to the Buyer in connection with this Agreement and any other
Transaction Document and the transactions contemplated hereby and thereby, as
well as the terms, conditions and provisions of this Agreement and any other
Transaction Document, shall be kept confidential by the recipient thereof, and
shall be used by the recipient thereof only in connection with this Agreement
and any other Transaction Document and the transactions contemplated hereby and
thereby. Notwithstanding the foregoing, each Dyax Entity and the
Buyer may disclose such information to their partners, directors, employees,
managers, officers, actual and potential investors, underwriters, rating
agencies, permitted assignees and sources of finance and bankers, advisors,
trustees and representatives (including, for the avoidance of doubt, in any
private placement memorandum, offering memorandum or other offering document
prepared in connection with an offering of securities backed by, among other
things, the Royalty Interests under Rule 144A of the Securities Act) on a
need-to-know basis, provided that such
Persons shall be informed of the confidential nature of such information and
shall be obligated to keep such information confidential according to at least a
reasonable standard of confidentiality.
(b) The
Parties’ obligations of confidentiality and non-use with respect to Confidential
Information shall not apply to information which (i) is or becomes generally
available to the public other than as a result of a disclosure directly or
indirectly by the receiving party, (ii) was within the receiving party’s
possession prior to it being furnished to the receiving party, provided that such
information is not subject to another confidentiality agreement with or other
contractual, legal or fiduciary obligation of confidentiality to the receiving
party, (iii) becomes available to the receiving party on a non-confidential
basis from a person who is not, to the receiving party’s knowledge, otherwise
bound by an obligation of confidentiality, (iv) is required to be disclosed
in any document to be filed with any Government Authority or (v) is
required to be disclosed under securities laws, rules and regulations applicable
to the Dyax Entity or the Buyer, as the case may be, provided, however, that if a
Party is required to make any such disclosure of the other Party’s Confidential
Information pursuant to clauses (iv) or (v) above, it shall give reasonable
advance notice to the other Party of such disclosure requirement and shall use
reasonable efforts to assist such other Party in efforts to secure confidential
treatment of such information required to be disclosed.
26
(c) Except
as required by law or the rules and regulations of any securities exchange or
trading system or any Government Authority, or except with the prior written
consent of the other parties (such consent not to be unreasonably withheld or
delayed), neither the Buyer nor any of Dyax shall issue any press release or
make any other public disclosure with respect to the transactions contemplated
by this Agreement or any other Transaction Document; provided, however that Dyax
and the Buyer shall, on or prior to the Closing, upon the form and content of an
initial press release to be issued by each of Dyax and the Buyer following the
Closing.
(d) Notwithstanding
anything herein to the contrary, any party to this Agreement (and each employee,
representative, or other agent of such party) may disclose to any and all
persons, without limitation of any kinds, the tax treatment and tax structure of
the transactions contemplated by this Agreement or any other Transaction
Document and all materials of any kind (including opinions and other tax
analyses) that are provided to the party relating to such tax treatment and tax
structure.
Section
5.04 Included
Reports.
Dyax
shall promptly deliver to the Buyer all Included Reports received by
Dyax. Dyax shall use its Commercially Reasonable Efforts to obtain
from Wyeth or any other Contract Party any other information which Dyax has a
right to receive under the terms of any Included License Agreement.
Section
5.05 Security
Agreement.
(a) Dyax
shall at all times until the applicable Security Interest Release Date grant and
maintain in favor of the Buyer a valid, continuing, first perfected lien
(subject to Permitted Liens) on and security interest in the Royalty Interests
and the other Collateral described in the Security Agreement.
(b) Dyax
shall not xxxxx x Xxxx (except a Permitted Lien) in or assign or otherwise
transfer any of its property that is Collateral under Security Agreement to any
party other than the Buyer.
Section
5.06 Best
Efforts; Further Assurance.
(a) Subject
to the terms and conditions of this Agreement, each party hereto will use its
commercially reasonable best efforts to take, or cause to be taken, all actions
and to do, or cause to be done, all things necessary under applicable laws and
regulations to consummate the transactions contemplated by this Agreement and
any other Transaction Document. Each party agrees to, and shall cause
its Affiliates to, execute and deliver such other documents, certificates,
agreements and other writings (including any financing statement filings
requested by the Buyer) and to perform such additional acts, as may be
reasonably requested and necessary or appropriate to carry out and effectuate
all of the provisions of this Agreement and any other Transaction Document and
to consummate all of the transactions contemplated by this Agreement and any
other Transaction Document.
27
(b) The
parties hereto shall cooperate and provide assistance as reasonably requested by
the other parties in connection with any litigation, arbitration or other
proceeding (whether threatened, existing, initiated, or contemplated prior to,
on or after the Effective Date) to which any party hereto or any of its
officers, directors, shareholders, agents or employees is or may become a party
or is or may become otherwise directly or indirectly affected or as to which any
such Persons have a direct or indirect interests, in each case relating to this
Agreement, any other Transaction Document, the Royalty Interests or any other
Collateral, or the transactions described herein or therein but in all cases
excluding any litigation brought any party against any other party to any
Transaction Document (except as provided in any indemnity provision pursuant
hereto or thereto).
(c) Dyax
agrees to, and shall cause its respective Affiliates to, deliver such additional
information, execute such additional agreements and other writings, and to
perform such additional acts as may be reasonably requested by Buyer in
connection with the transfer of all or a portion of the Royalty Interests to a
bankruptcy-remote Affiliate of the Buyer, the preparation of materials for due
diligence, and the provision of information to third parties, including
governmental agencies and rating agencies in connection with the borrowing of
money or issuance of securities backed, in whole or part, by the Royalty
Interests.
Section
5.07 Wyeth
Acknowledgment.
Promptly
after the Closing Date, Dyax shall deliver to Wyeth the payment instruction
acknowledgement letter, the form of which is attached hereto as Exhibit F (“Wyeth Acknowledgement
Letter”), and Dyax shall use its commercially reasonable efforts to
obtain an executed copy of the Wyeth Acknowledgement Letter from
Wyeth.
Section
5.08 Additional
Covenants of Dyax.
(a) [*****]
(b) [*****]:
(c) [*****]
(d) [*****]
(e) [*****]
(f)
Dyax shall not exercise its remedy under Section 3.5 of the Wyeth License
Agreement without the Buyer’s prior written consent.
(g) [*****]
(h) [*****]
(i)
[*****]
(j)
[*****]
* Confidential Treatment
Requested. Omitted portions filed with the Commission.
28
(k) Each
Dyax Entity shall cause each Contract Party under any Included License Agreement
to provide, promptly following the end of each calendar quarter, all information
with respect to sales (including all components of information required to
calculate Included Product Payments) under each such agreement for inclusion in
the Included Report for such quarter, and each Dyax Entity shall cause such
obligation to be included in every Included License Agreement it enters into
following the Closing Date. Buyer shall be responsible for reasonable
out of pocket costs and expenses (including reasonable attorneys’ fees and
expenses) arising in connection with such efforts and shall fully and promptly
reimburse Dyax if and to the extent that any such costs or expenses are incurred
by Dyax and preapproved by the Buyer prior to being incurred by
Dyax.
(l) Each
Dyax Entity, as applicable, shall ensure that the claims and rights of the Buyer
created by this Agreement and any other Transaction Document in and to the
Royalty Interests and any other Collateral are and shall remain senior to any
creditor of any Dyax Entity or any other Person.
(m) Each
Dyax Entity, as applicable, shall assign, to Dyax or its designee all
improvements of or to the Included Products and the Dyax IP and inventions
relating thereto that arise on or after the Closing Date and agrees to execute
and deliver, and agrees to cause all other Dyax Entities to execute and deliver,
all instruments, documents and agreements as are reasonably required to
effectuate such assignment.
Section
5.09 Future
Agreements.
(a) Dyax
shall be the counterparty to any and all Included License Agreements entered
into after the Closing, and no other Dyax Entity shall be a beneficiary under
any such agreement. No Dyax Entity shall enter into an Included
License Agreement after the Closing without the prior written consent of the
Buyer. Dyax shall provide the Buyer a copy of each proposed Included
License Agreement by Dyax and any Contract Party for Buyer’s written
approval. If Buyer grants its approval to any Included License
Agreement, Dyax shall be permitted to enter into such Included License Agreement
without modification from the version of such agreement provided to and approved
by Buyer.
(b) Any
future Included License Agreement shall (i) be assignable in connection with the
assets of the product line to which it relates; and (ii) expressly permit the
assignment of a Royalty Interest and the grant of a security interest in favor
of the Buyer.
ARTICLE
VI
THE
CLOSING; CONDITIONS TO CLOSING AND FUNDING
Section 6.01 Closing.
Subject to the closing conditions set
forth in Sections
6.02 and 6.03, the closing of
the purchase and sale of the Royalty Interests (the “Closing”) shall take
place at the offices of Xxxxxxx XXX, Xxx Xxxx, Xxx Xxxx, Xxxxxx Xxxxxx, at 10:00
a.m.
New York time on April 16, 2010, or, if the conditions to the Closing set
forth in Sections
6.02 and 6.03 shall not have
been satisfied by such date, on a date mutually agreed by the parties hereto
that is as soon as practicable after such conditions shall have been satisfied
(the “Closing
Date”).
29
Section
6.02 Conditions
Applicable to the Buyer.
The
obligations of the Buyer to effect the Closing and the payment of the Investment
shall be subject to the satisfaction of each of the following conditions, any of
which may be waived by the Buyer in its sole discretion:
(a) Accuracy of Representations
and Warranties. The representations and warranties of Dyax set
forth in this Agreement and the other Transaction Documents shall be true,
correct and complete as of the Closing Date.
(b) Covenants. Dyax
and the other Dyax Entities party to this Agreement or any Transaction Document
shall have complied in all material respects with the covenants set forth in
this Agreement and each other Transaction Document.
(c) No Adverse
Circumstances. No Material Adverse Change, nor any event that
could reasonably be expected to cause or result in a Material Adverse Change,
shall have occurred.
(d) Litigation. No
action, suit, litigation, proceeding or investigation shall have been
instituted, be pending or threatened (i) challenging or seeking to make illegal,
to delay or otherwise directly or indirectly to restrain or prohibit the
consummation of the transactions contemplated by this Agreement or any of the
Transaction Documents, or seeking to obtain damages in connection with the
transactions contemplated by this Agreement, or (ii) seeking to restrain or
prohibit the Buyer’s acquisition or future receipt of the Royalty
Interests.
(e) Consents. Dyax
shall have obtained at its own expense (and shall have provided copies thereof
to the Buyer) all of the waivers, permits, consents, approvals or other
authorizations, and effected all of the registrations, filings and notices,
referred to in Section
5.01 which are required on the part of Dyax.
(f) [*****].
(g) Maintenance
Fees. Any and all maintenance fees and annuities due and
payable on or prior to the Effective Date with respect to the Dyax Patents shall
have been paid in full, including for U.S. Patents 6,492,105 and
7,112,438.
(h) Xxxx of
Sale. A Xxxx of Sale shall have been executed and delivered by
Dyax to the Buyer and shall be in the form attached hereto as Exhibit
A.
(i)
Security
Agreement. The Security Agreement shall have been duly
executed and delivered by all the parties thereto and shall be in the form
attached hereto as Exhibit B, together
with proper financing statements (including Form UCC-1s), notifications and
registrations for filing with any regulatory agency or under the UCC and/or any
other applicable law, rule, statute or regulation relating to the perfection of
a security interest in filing offices in the United States.
* Confidential Treatment
Requested. Omitted portions filed with the Commission.
30
(j)
Corporate Documents of
Dyax. The Buyer shall have received on the Closing Date, a
certificate, dated the Closing Date, of the Secretary of Dyax (the statements
made in which shall be true and correct on and as of the Closing Date): (i)
attaching copies, certified by such officer as true and complete, of Dyax’s
certificate of incorporation and bylaws or other organizational documents
(together with any and all amendments thereto) certified by the appropriate
Government Authority as being true, correct and complete copies; (ii) attaching
copies, certified by such officer as true and complete, of resolutions of the
board of directors of Dyax authorizing and approving the execution, delivery and
performance by such Dyax of this Agreement, the other Transaction Documents and
the transactions contemplated herein and therein; (iii) setting forth the
incumbency of the officer or officers of Dyax who have executed and delivered
this Agreement and the other Transaction Documents including therein a signature
specimen of each such officer or officers; and (iv) attaching copies, certified
by such officer as true and complete, of certificates of the appropriate
Government Authority of the jurisdiction of formation, stating that Dyax is in
good standing under the laws of such jurisdiction.
(k) Officer’s
Certificates. The Buyer shall have received at the Closing a
certificate of an executive officer of Dyax pursuant to which such officer
certifies that the conditions set forth in Sections 6.02(a) –
(g) have been satisfied in all respects as of the Closing
Date.
(l)
Legal
Opinions. The Buyer shall have received an opinion of Xxxxxxx
Xxxxxx Xxxxxx & Dodge LLP, counsel to Dyax, dated the Closing Date, in form
and substance satisfactory to the Buyer and its counsel, to the effect set forth
in Exhibit
D. The Buyer shall have received an opinion of Lando &
Xxxxxxxx, special patent counsel to Dyax, dated the Closing Date, in form and
substance satisfactory to the Buyer and its counsel, to the effect set forth in
Exhibit
E.
Section
6.03 Conditions
Applicable to Dyax Entities.
The
obligations of Dyax to effect the Closing shall be subject to the satisfaction
of each of the following conditions, any of which may be waived by Dyax in its
sole discretion:
(a) Accuracy of Representations
and Warranties. The representations and warranties of the
Buyer set forth in this Agreement shall be true, correct and complete as of the
Closing Date.
(b) Litigation. No
action, suit, litigation, proceeding or investigation shall have been formally
instituted, be pending or threatened (i) challenging or seeking to make illegal,
to delay or otherwise directly or indirectly to restrain or prohibit the
consummation of the transactions contemplated by this Agreement, or seeking to
obtain damages in connection with the transactions contemplated by this
Agreement, or (ii) seeking to restrain or prohibit the Buyer’s acquisition or
future receipt of the Royalty Interests.
(c) Officer’s
Certificate. Dyax shall have received at the Closing a
certificate of an officer or member of the general partner of the Buyer
certifying that the conditions set forth in Sections 6.03(a) and
(b) have been
satisfied, in all respects as of the Closing Date.
31
(d) Full
Payment. The Investment shall have been tendered by the Buyer
to Dyax by wire transfer of immediately available funds to Dyax Account
identified to the Buyer on or prior to the Closing.
ARTICLE
VII
TERMINATION
Section 7.01 Term.
Unless this Agreement is terminated
prior to the Closing or later in accordance with Section 2.03(a)(ii)
in accordance with the express terms of this Agreement, the Parties’ obligations
under this Agreement shall continue to be effective after the Closing until the
Royalty Interest Termination Date; provided, however, that if any
Obligations under this Agreement remain unpaid or any payments are required to
be made by one of the Parties hereunder after the Royalty Interest Termination
Date, this Agreement shall remain in full force and effect until any and all
such payments have been made in full, and solely for that purpose.
ARTICLE
VIII
MISCELLANEOUS
Section
8.01 Survival.
(a) All
representations and warranties made as of their respective dates herein and in
any other Transaction Document, any certificates or in any other writing
delivered pursuant hereto or in connection herewith as of Closing shall survive
the execution and delivery of this Agreement and the Closing and shall continue
to survive until the Royalty Interest Termination
Date. Notwithstanding anything in this Agreement or implied by law to
the contrary, all the agreements contained in Section 5.04
(Confidentiality; Public Announcement), Section 8.01
(Survival), Section
8.04 (Successors and Assigns) and Section 8.05
(Indemnification) shall survive indefinitely following the execution and
delivery of this Agreement and the Closing and the termination of this
Agreement.
(b) Any
investigation or other examination that may have been made or may be made at any
time by or on behalf of the party to whom representations and warranties are
made shall not limit, diminish or in any way affect the representations and
warranties in this Agreement and the other Transaction Documents, and the
parties may rely on the representations and warranties in this Agreement and the
other Transaction Documents irrespective of any information obtained by them by
any investigation, examination or otherwise.
Section
8.02 Specific
Performance.
Each of
the parties hereto acknowledges that the other party will have no adequate
remedy at law if it fails to perform any of its obligations under this Agreement
or any of the other Transaction Documents. In such event, each of the
parties agrees that the other party shall have the right, in addition to any
other rights it may have (whether at law or in equity), to specific performance
of this Agreement.
32
Section 8.03 Notices.
All
notices, consents, waivers and communications hereunder given by any party to
the other shall be in writing (including facsimile transmission and email) and
delivered personally, by email or facsimile (provided in each case that receipt
is confirmed and that a copy is provided in addition by personal delivery, by
courier or by mail as provided herein), by a recognized overnight courier, or by
dispatching the same by certified or registered air mail, return receipt
requested, with postage prepaid, in each case addressed:
If to the
Buyer to:
c/o Xxxx
Capital Management, L.L.C.
00
Xxxxxxxxxx Xxxxxx
Xxxxx
0000
Xxx
Xxxxxxxxx, Xxxxxxxxxx 00000
XXX
[*****]
with
copies to (which shall not constitute notice):
Xxxx
Capital Partners
000xx
Xxxx 00xx Xxxxxx, 44th Floor
New York,
New York 10017
USA
[*****]
and
Dechert
LLP
0000
Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx,
Xxx Xxxx 00000
[*****]
If to
Dyax to:
Dyax Corp.
000 Xxxxxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
[*****]
* Confidential Treatment
Requested. Omitted portions filed with the Commission.
33
or to
such other address or addresses as the Buyer or Dyax may from time to time
designate by notice as provided herein, except that notices of changes of
address shall be effective only upon receipt. All such notices
consents, waivers and communications shall: (a) when posted by certified or
registered mail, postage prepaid, return receipt requested, be effective three
(3) Business Days after dispatch, unless such communication is sent
trans-Atlantic, in which case shall be deemed effective five (5) Business Days
after dispatch, (b) when telegraphed, telecopied, telexed or facsimiled, be
effective upon receipt by the transmitting party of confirmation of complete
transmission, (c) when delivered by a recognized overnight courier or in person,
be effective upon receipt when hand delivered, or (d) or when sent by email,
upon receipt of confirmatory hard copies from the sender or return email from
the recipient.
Section
8.04 Successors
and Assigns.
The
provisions of this Agreement shall be binding upon and inure to the benefit of
the parties hereto and their respective permitted successors and
assigns. Dyax shall not be entitled to assign any of its obligations
and rights hereunder or any other Transaction Documents without the prior
written consent of the Buyer, it being understood and agreed that a sale of the
capital stock of Dyax (including acquisition of existing stock) shall not be
deemed an assignment for purposes of this sentence. The Buyer may
assign, subcontract or delegate any of its rights hereunder without restriction,
but shall not be entitled to assign any of its obligations hereunder or any
other Transaction Documents without the prior written consent of
Dyax. Any assignment in violation hereof shall be null and void,
ab initio.
Section
8.05 Indemnification.
(a) Dyax
hereby indemnifies and holds the Buyer and its Affiliates and any of their
respective partners, directors, managers, officers, employees and agents (each a
“Buyer Indemnified
Party”) harmless from and against any and all Losses incurred or suffered
by any Buyer Indemnified Party arising out of (i) any breach of any
representation, warranty or certification made by Dyax in any of the Transaction
Documents or certificates given in writing pursuant thereto or any breach of or
default under any covenant or agreement by Dyax pursuant to this Agreement or
any Transaction Document, (ii) any failure by Dyax to satisfy any of the
Obligations, or (iii) any Excluded Liabilities and Obligations.
(b) The
Buyer hereby indemnifies and holds Dyax and its Affiliates and any of their
respective partners, directors, managers, officers, employees and agents (each a
“Dyax Indemnified
Party”) harmless from and against any and all Losses incurred or suffered
by any Dyax Indemnified Party arising out of any breach of any representation,
warranty or certification made by the Buyer in any of the Transaction Documents
or certificates given by the Buyer in writing pursuant thereto or any breach of
or default under any covenant or agreement by the Buyer pursuant to this
Agreement or any Transaction Document.
34
(c) If
any claim, demand, action or proceeding (including any investigation by any
Government Authority) shall be brought or alleged against an indemnified party
in respect of which indemnity is to be sought against an indemnifying party
pursuant to the preceding paragraphs, the indemnified party shall, promptly
after receipt of notice of the commencement of any such claim, demand, action or
proceeding, notify the indemnifying party in writing of the commencement of such
claim, demand, action or proceeding, enclosing a copy of all papers served, if
any; provided,
that, the omission to so notify such indemnifying party will not relieve the
indemnifying party from any liability that it may have to any indemnified party
under the foregoing provisions of this Section 8.05 unless,
and only to the extent that, such omission results in the forfeiture of
substantive rights or defenses by the indemnifying party. In case any
such action is brought against an indemnified party and it notifies the
indemnifying party of the commencement thereof, the indemnifying party will be
entitled to participate therein and, to the extent that it may wish, jointly
with any other indemnifying party similarly notified, to assume the defense
thereof, with counsel reasonably satisfactory to such indemnified party (who
shall not, except with the consent of the indemnified party, be counsel to the
indemnifying party), provided however that (i) the
action solely seeks monetary damages and (ii) the indemnifying party expressly
agrees in writing that as between the indemnifying party and the indemnified
party, the indemnifying party shall be solely obligated to satisfy and discharge
the action in full, and after notice from the indemnifying party to such
indemnified party of its election so to assume the defense thereof, the
indemnifying party will not be liable to such indemnified party under this Section 8.05 for any
legal or other expenses subsequently incurred by such indemnified party in
connection with the defense thereof other than reasonable costs of
investigation. The indemnified party may, at any time, assume all
such defense of any action that does meet the requirements of clauses (i) and
(ii) above. In any such proceeding, an indemnified party shall have
the right to retain its own counsel, but the reasonable fees and expenses of
such counsel shall be at the expense of such indemnified party unless (A) the
indemnifying party and the indemnified party shall have mutually agreed to the
retention of such counsel, (B) the indemnifying party has assumed the defense of
such proceeding and has failed within a reasonable time to retain counsel
reasonably satisfactory to such indemnified party, (C) the named parties to any
such proceeding (including any impleaded parties) include both the indemnifying
party and the indemnified party and representation of both parties by the same
counsel would be inappropriate due to actual or potential conflicts of interests
between them based on the advice of such counsel, or (D) the indemnified party
assumes the defense of any action that does meet the requirements of clauses (i)
and (ii) above. It is agreed that the indemnifying party shall not,
in connection with any proceeding or related proceedings in the same
jurisdiction, be liable for the reasonable fees and expenses of more than one
separate law firm (in addition to local counsel where necessary) for all such
indemnified parties. The indemnifying party shall not be liable for
any settlement of any proceeding effected without its written consent, but if
settled with such consent or if there be a final judgment for the plaintiff, the
indemnifying party agrees to indemnify the indemnified party from and against
any loss or liability by reason of such settlement or judgment. No
indemnifying party shall, without the prior written consent of the indemnified
party, effect any settlement of any pending or threatened proceeding in respect
of which any indemnified party is or could have been a party and indemnity could
have been sought hereunder by such indemnified party, unless such settlement
includes an unconditional release of such indemnified party from all liability
on claims that are the subject matter of such proceeding.
Section
8.06 Performance
by the Buyer.
(a) In
the event that any Dyax Entity is in breach of or in default under any Included
License Agreement and such breach or default continues beyond any applicable
cure period, the Buyer may, but shall not be obligated to, cure or attempt to
cure such breach or default on behalf of such Dyax Entity. In such
event, Dyax shall, at the request of the Buyer promptly pay any amount expended
by the Buyer in such performance unless and to the extent that any such breach
or default arose out of an action taken, or not taken, at the request or
instruction of Buyer, in which case Buyer shall be solely responsible for any
such expenses.
35
(b) To
the fullest extent possible, the Buyer shall have the right to enforce, or to
cause Dyax to enforce, any rights of Dyax under any Included License
Agreement.
(c) Notwithstanding
clauses (a) and (b) above, it is expressly understood that the Buyer assumes no
liability or responsibility for the performance of any duties of Dyax or any
other Contract Party under any Included License Agreement.
(d) Buyer
shall have the right (but not the obligation) to assume responsibility for
maintenance of any Dyax Patents, at Dyax’s expense (except as provided in Section 2.02(b)), if
Dyax or any other Person fails to maintain such Dyax Patent, provided that if
Buyer chooses to exercise such right, Buyer shall notify Dyax thereof in writing
within a reasonable period of time and Buyer’s exercise of such right shall not
release Dyax from any liability for breach of this Agreement, including Section
5.08(h).
Section 8.07 Expenses.
(a) Except
as otherwise provided specifically herein, each party hereto will pay all of its
own fees and expenses in connection with entering into and consummating the
transactions contemplated by this Agreement.
(b) Dyax
shall pay all reasonable out-of-pocket expenses (including reasonable attorneys’
fees and costs and reasonable accounting, appraisal, investment banking and
similar professional fees and charges) incurred by the Buyer in connection with
the enforcement of or preservation of rights under any of the Transaction
Documents against Dyax or of the granting of any waivers or amendments to any of
the Transaction Documents that are requested by Dyax.
Section
8.08 Independent
Nature of Relationship.
(a) The
relationship between Dyax, on the one hand, and the Buyer, on the other hand, is
solely that of seller and purchaser, and neither Dyax, on the one hand, nor the
Buyer, on the other hand, has any fiduciary or other special relationship with
the other party or any of their respective Affiliates. Nothing
contained herein or in any other Transaction Document shall be deemed to
constitute any Dyax Entity and the Buyer, as a partnership, an association, a
joint venture or other kind of entity or legal form.
(b) No
manager or other representative of the Buyer will be located at the premises of
any Dyax Entity, except in connection with an audit performed pursuant to Section
5.02. No manager or other representative of the Buyer shall
engage in any commercial activity with Dyax other than as contemplated herein
and in the other Transaction Documents.
(c) Dyax
shall not at any time obligate the Buyer, or impose on the Buyer any obligation,
in any manner or respect to any Person not a party hereto.
(d) No
Dyax Entity is transferring to the Buyer any ownership interest in any Dyax
Patent or other intellectual property of any Dyax Entity.
36
Section
8.09 Tax.
The Buyer shall provide to Dyax, upon
reasonable request by Dyax, Internal Revenue Service Form W-9 if required in
order to allow Dyax to make payment under this Agreement without any deduction
or withholding for or on account of any tax.
Section
8.10 Entire
Agreement.
This
Agreement, together with the Exhibits and Schedules hereto (which are
incorporated herein by reference), and the other Transaction Documents
constitute the entire agreement between the parties with respect to the subject
matter hereof and supersede all prior agreements (including the Letter of
Intent), understandings and negotiations, both written and oral, between the
parties with respect to the subject matter of this Agreement. No
representation, inducement, promise, understanding, condition or warranty not
set forth herein (or in the Exhibits, Schedules or other Transaction Documents)
has been made or relied upon by either party hereto. None of this
Agreement, nor any provision hereof, is intended to confer upon any Person other
than the parties hereto any rights or remedies hereunder.
Section
8.11 Performance
by Affiliates.
Any right
or obligation of the Buyer under or pursuant to this Agreement or the
Transaction Documents may be exercised, satisfied, met or fulfilled, in whole or
in part, at the Buyer’s sole and exclusive option, by an independent manager
appointed by the Buyer.
Section
8.12 Amendments;
No Waivers.
(a) This
Agreement or any term or provision hereof may not be amended, changed or
modified except with the written consent of the parties hereto. No
waiver of any right hereunder shall be effective unless such waiver is signed in
writing by the party against whom such waiver is sought to be enforced. All
expenses (including attorneys’ fees and expenses) incurred in connection with
the amendment or modification of this Agreement or any of the Transaction
Documents, if requested by Dyax, shall be borne solely by Dyax (unless the terms
of this Agreement expressly provide to the contrary), and requested by Buyer,
shall be borne solely by Buyer (unless the terms of this Agreement expressly
provide to the contrary). For any amendment or modification of this
Agreement mutually determined to be necessary to clarify any provision hereof,
each party shall bear their own expenses (including attorneys’ fees and
expenses).
(b) No
failure or delay by either party in exercising any right, power or privilege
hereunder shall operate as a waiver thereof nor shall any single or partial
exercise thereof preclude any other or further exercise thereof or the exercise
of any other right, power or privilege. The rights and remedies
herein provided shall be cumulative and not exclusive of any rights or remedies
provided by law.
Section
8.13 Counterparts;
Effectiveness.
This
Agreement may be executed in two or more counterparts, each of which shall be an
original, but all of which together shall constitute one and the same
instrument. This Agreement shall become effective when each party
hereto shall have received a counterpart hereof signed by the other parties
hereto.
37
Section 8.14 Severability.
If any
provision of this Agreement is held to be invalid or unenforceable, the
remaining provisions shall nevertheless be given full force and
effect.
Section
8.15 Governing
Law; Jurisdiction.
(a) THIS
AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED, INTERPRETED AND ENFORCED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF
NEW YORK, WITHOUT GIVING EFFECT TO THE
PRINCIPLES OF CONFLICTS OF LAW THEREOF (OTHER THAN SECTION 5-1401 OF THE GENERAL
OBLIGATIONS LAW OF THE STATE OF
NEW YORK).
(b) ANY
LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT OR ANY OTHER
TRANSACTION DOCUMENT MAY BE BROUGHT IN ANY STATE OR FEDERAL COURT OF COMPETENT
JURISDICTION IN XXX XXXXX, XXXXXX XXX XXXX XX XXX XXXX. BY EXECUTION
AND DELIVERY OF THIS AGREEMENT, EACH PARTY HERETO HEREBY IRREVOCABLY CONSENTS TO
AND ACCEPTS, FOR ITSELF AND IN RESPECT OF ITS PROPERTY, GENERALLY AND
UNCONDITIONALLY THE EXCLUSIVE JURISDICTION OF SUCH COURTS. EACH PARTY
HERETO HEREBY FURTHER IRREVOCABLY WAIVES ANY OBJECTION, INCLUDING ANY OBJECTION
TO THE LAYING OF VENUE OR BASED ON THE GROUNDS OF FORUM NON CONVENIENS, WHICH IT
MAY NOW OR HEREAFTER HAVE TO THE BRINGING OF ANY ACTION OR PROCEEDING IN SUCH
JURISDICTION IN RESPECT OF THIS AGREEMENT OR ANY OTHER TRANSACTION
DOCUMENT.
(c) EACH
PARTY HERETO HEREBY IRREVOCABLY CONSENTS TO THE SERVICE OF PROCESS OUT OF ANY OF
THE COURTS REFERRED TO IN SUBSECTION (b) ABOVE OF THIS SECTION 8.15 IN ANY
SUCH SUIT, ACTION OR PROCEEDING BY THE MAILING OF COPIES THEREOF BY REGISTERED
OR CERTIFIED MAIL, POSTAGE PREPAID, TO IT AT ITS ADDRESS SET FORTH IN THIS
AGREEMENT. EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES ANY OBJECTION
TO SUCH SERVICE OF PROCESS AND FURTHER IRREVOCABLY WAIVES AND AGREES NOT TO
PLEAD OR CLAIM IN ANY SUIT, ACTION OR PROCEEDING COMMENCED HEREUNDER OR UNDER
ANY OTHER TRANSACTION DOCUMENT THAT SERVICE OF PROCESS WAS IN ANY WAY INVALID OR
INEFFECTIVE. NOTHING HEREIN SHALL AFFECT THE RIGHT OF A PARTY TO
SERVE PROCESS ON THE OTHER PARTY IN ANY OTHER MANNER PERMITTED BY
LAW.
Section
8.16 Waiver of
Jury Trial.
EACH
PARTY HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY
APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING,
CLAIM OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER
TRANSACTION DOCUMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY OR
THEREBY. THIS WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS,
RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO THIS AGREEMENT OR ANY OTHER
TRANSACTION DOCUMENT.
38
Exhibit
10.1
EXECUTION
VERSION
Confidential
materials omitted and filed separately with the Securities and
Exchange
Commission. Asterisks
denote such omission.
IN
WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed by their respective authorized officers as of the date first above
written.
|
DYAX:
|
|
|
|
DYAX
CORP.
|
|
|
|
|
|
|
By:
| /s/
Xxxxxx Xxxxxxxx |
|
|
|
Name:
Xxxxxx Xxxxxxxx
|
|
|
|
Title:
Chief Financial Officer
|
|
BUYER:
|
|
|
|
|
KGH
DOMESTIC III, LP
|
| | |
|
|
By:
Xxxx Capital Healthcare Management, L.P.
|
|
|
Its:
General Partner
|
| | |
| | By:
Xxxx Capital Fund Management , L.L.C. |
| |
Its:
General Partner
|
|
|
|
|
|
|
By:
| /s/
Xxxxxx Xxxxxxxxx |
|
|
|
Name:
Xxxxxx Xxxxxxxxx
|
|
|
|
Title:
Manager
|
39
Schedule 3.08
(c)
Litigation
[*****]
* Confidential Treatment
Requested. Omitted portions filed with the Commission.
40
Schedule 3.12
(b)
Dyax
Patent Rights
|
FACTOR VIII AND FACTOR VIII-LIKE PROTEINS
|
|
MATTER
|
|
|
|
SERIAL
|
|
PATENT
|
|
PUBL
|
|
TITLE
|
|
STATUS
|
|
ISSUE
|
|
Annuity
Due Date
|
|
EXPIRATION
|
|
099001
|
|
US
|
|
09/224,785
|
|
6,197,526
|
|
|
|
POLYPEPTIDES
FOR BINDING HUMAN FACTOR VIII AND FRAGMENTS OF HUMAN FACTOR
VIII
|
|
ISSUED
|
|
3/6/2001
|
|
3/6/2012
|
|
1/4/2019
|
| | | | | | | | | | | | | | | | | | | |
|
099002
|
|
US
|
|
09/756,594
|
|
6,492,105
|
|
US
2001-0014456 A1
|
|
POLYPEPTIDES
FOR BINDING HUMAN FACTOR VIII AND FRAGMENTS OF HUMAN FACTOR
VIII
|
|
ISSUED
|
|
12/10/2002
|
|
6/10/2010
|
|
2/18/2019
|
| | | | | | | | | | | | | | | | | | | |
|
099AT2
|
|
AT
|
|
06009040.4
|
|
EP1705183
|
|
|
|
BINDING
MOLECULES FOR HUMAN FACTOR VIII AND FACTOR VIII-LIKE PROTEINS
|
|
ISSUED
|
|
6/17/2009
|
|
1/3/2011
|
|
1/3/2020
|
| | | | | | | | | | | | | | | | | | | |
|
099AU1
|
|
AU
|
|
25982/00
|
|
769745
|
|
769745
|
|
BINDING
MOLECULES FOR HUMAN FACTOR VIII AND FACTOR VIII-LIKE
PROTEINS
|
|
ISSUED
|
|
5/27/2004
|
|
1/3/2011
|
|
1/3/2020
|
| | | | | | | | | | | | | | | | | | | |
|
099AU2
|
|
AU
|
|
2004201830
|
|
2004201830
|
|
|
|
BINDING
MOLECULES FOR HUMAN FACTOR VIII AND FACTOR VIII-LIKE
PROTEINS
|
|
ISSUED
|
|
7/19/2007
|
|
1/3/2011
|
|
1/3/2020
|
| | | | | | | | | | | | | | | | | | | |
|
099BE2
|
|
BE
|
|
06009040.4
|
|
EP1705183
|
|
|
|
BINDING
MOLECULES FOR HUMAN FACTOR VIII AND FACTOR VIII-LIKE
PROTEINS
|
|
ISSUED
|
|
6/17/2009
|
|
1/3/2011
|
|
1/3/2020
|
| | | | | | | | | | | | | | | | | | | |
|
[*****]
|
|
[*****]
|
|
[*****]
|
|
|
|
|
|
[*****]
|
|
[*****]
|
|
|
|
[*****]
|
|
[*****]
|
* Confidential Treatment
Requested. Omitted portions filed with the Commission.
41
|
099CH2
|
|
CH
|
|
06009040.4
|
|
EP1705183
|
|
|
|
BINDING
MOLECULES FOR HUMAN FACTOR VIII AND FACTOR VIII-LIKE
PROTEINS
|
|
ISSUED
|
|
6/17/2009
|
|
1/3/2011
|
|
1/3/2020
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
099DE2
|
|
DE
|
|
06009040.4
|
|
EP1705183
|
|
|
|
BINDING
MOLECULES FOR HUMAN FACTOR VIII AND FACTOR VIII-LIKE
PROTEINS
|
|
ISSUED
|
|
6/17/2009
|
|
1/3/2011
|
|
1/3/2020
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
099DK2
|
|
DK
|
|
06009040.4
|
|
EP1705183
|
|
|
|
BINDING
MOLECULES FOR HUMAN FACTOR VIII AND FACTOR VIII-LIKE
PROTEINS
|
|
ISSUED
|
|
6/17/2009
|
|
1/3/2011
|
|
1/3/2020
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
[*****]
|
|
[*****]
|
|
[*****]
|
|
|
|
[*****]
|
|
[*****]
|
|
[*****]
|
|
|
|
[*****]
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
099EP2
|
|
EP
|
|
06009040.4
|
|
EP1705183
|
|
EP1705183
|
|
BINDING
MOLECULES FOR HUMAN FACTOR VIII AND FACTOR VIII-LIKE
PROTEINS
|
|
ISSUED
|
|
6/17/2009
|
|
1/3/2011
|
|
1/3/2020
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
099EP3
|
|
EP
|
|
09155033.5
|
|
|
|
EP2090582
|
|
BINDING
MOLECULES FOR HUMAN FACTOR VIII AND FACTOR VIII-LIKE
PROTEINS
|
|
PUBLISHED
|
|
|
|
1/3/2011
|
|
1/3/2020
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
099ES2
|
|
ES
|
|
06009040.4
|
|
EP1705183
|
|
|
|
BINDING
MOLECULES FOR HUMAN FACTOR VIII AND FACTOR VIII-LIKE
PROTEINS
|
|
ISSUED
|
|
6/17/2009
|
|
1/3/2011
|
|
1/3/2020
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
099FI2
|
|
FI
|
|
06009040.4
|
|
EP1705183
|
|
|
|
BINDING
MOLECULES FOR HUMAN FACTOR VIII AND FACTOR VIII-LIKE
PROTEINS
|
|
ISSUED
|
|
6/17/2009
|
|
1/3/2011
|
|
1/3/2020
|
* Confidential Treatment
Requested. Omitted portions filed with the Commission.
42
|
[*****]
|
|
[*****]
|
|
[*****]
|
|
|
|
|
|
[*****]
|
|
[*****]
|
|
|
|
[*****]
|
|
[*****]
|
|
|
|
|
|
|
|
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|
|
|
|
|
|
|
|
|
|
|
099GB2
|
|
GB
|
|
06009040.4
|
|
EP1705183
|
|
|
|
BINDING
MOLECULES FOR HUMAN FACTOR VIII AND FACTOR VIII-LIKE
PROTEINS
|
|
ISSUED
|
|
6/17/2009
|
|
1/3/2011
|
|
1/3/2020
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
099GR2
|
|
GR
|
|
06009040.4
|
|
EP1705183
|
|
|
|
BINDING
MOLECULES FOR HUMAN FACTOR VIII AND FACTOR VIII-LIKE
PROTEINS
|
|
ISSUED
|
|
6/17/2009
|
|
1/3/2011
|
|
1/3/2020
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
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|
|
|
[*****]
|
|
[*****]
|
|
[*****]
|
|
|
|
|
|
[*****]
|
|
[*****]
|
|
|
|
[*****]
|
|
[*****]
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
[*****]
|
|
[*****]
|
|
[*****]
|
|
[*****]
|
|
|
|
[*****]
|
|
[*****]
|
|
[*****]
|
|
[*****]
|
|
[*****]
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
[*****]
|
|
[*****]
|
|
[*****]
|
|
|
|
|
|
[*****]
|
|
[*****]
|
|
|
|
[*****]
|
|
[*****]
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
099IE2
|
|
IE
|
|
06009040.4
|
|
EP1705183
|
|
|
|
BINDING
MOLECULES FOR HUMAN FACTOR VIII AND FACTOR VIII-LIKE
PROTEINS
|
|
ISSUED
|
|
6/17/2009
|
|
1/3/2011
|
|
1/3/2020
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
099IT2
|
|
IT
|
|
06009040.4
|
|
EP1705183
|
|
|
|
BINDING
MOLECULES FOR HUMAN FACTOR VIII AND FACTOR VIII-LIKE
PROTEINS
|
|
ISSUED
|
|
6/17/2009
|
|
1/3/2011
|
|
1/3/2020
|
*
Confidential Treatment Requested. Omitted portions filed with the
Commission.
43
|
099JP1
|
|
JP
|
|
2000-592310
|
|
|
|
P2002-536297A
|
|
BINDING
MOLECULES FOR HUMAN FACTOR VIII AND FACTOR VIII-LIKE
PROTEINS
|
|
PUBLISHED
|
|
|
|
No
Annuity Due
|
|
1/3/2020
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
099LI2
|
|
LI
|
|
06009040.4
|
|
EP1705183
|
|
|
|
BINDING
MOLECULES FOR HUMAN FACTOR VIII AND FACTOR VIII-LIKE
PROTEINS
|
|
ISSUED
|
|
|
|
1/3/2011
|
|
1/3/2020
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
099LU2
|
|
LU
|
|
06009040.4
|
|
EP1705183
|
|
|
|
BINDING
MOLECULES FOR HUMAN FACTOR VIII AND FACTOR VIII-LIKE
PROTEINS
|
|
ISSUED
|
|
6/17/2009
|
|
1/3/2011
|
|
1/3/2020
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
099MC2
|
|
MC
|
|
06009040.4
|
|
EP1705183
|
|
|
|
BINDING
MOLECULES FOR HUMAN FACTOR VIII AND FACTOR VIII-LIKE
PROTEINS
|
|
ISSUED
|
|
6/17/2009
|
|
1/3/2011
|
|
1/3/2020
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
099NL2
|
|
NL
|
|
06009040.4
|
|
EP1705183
|
|
|
|
BINDING
MOLECULES FOR HUMAN FACTOR VIII AND FACTOR VIII-LIKE
PROTEINS
|
|
ISSUED
|
|
6/17/2009
|
|
1/3/2011
|
|
1/3/2020
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
099PT2
|
|
PT
|
|
06009040.4
|
|
EP1705183
|
|
|
|
BINDING
MOLECULES FOR HUMAN FACTOR VIII AND FACTOR VIII-LIKE
PROTEINS
|
|
ISSUED
|
|
6/17/2009
|
|
1/3/2011
|
|
1/3/2020
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
099SE2
|
|
SE
|
|
06009040.4
|
|
EP1705183
|
|
|
|
BINDING
MOLECULES FOR HUMAN FACTOR VIII AND FACTOR VIII-LIKE
PROTEINS
|
|
ISSUED
|
|
6/17/2009
|
|
1/3/2011
|
|
1/3/2020
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
099WO1
|
|
WO
|
|
PCT/US00/00043
|
|
|
|
WO00/40602
|
|
BINDING
MOLECULES FOR HUMAN FACTOR VIII AND FACTOR VIII-LIKE
PROTEINS
|
|
PUBLISHED
|
|
|
|
No
Annuity Due
|
|
|
*
Confidential Treatment Requested. Omitted portions filed with the
Commission.
44
|
100001
|
|
US
|
|
10/272,497
|
|
7,112,438
|
|
US
2003-0165822 A1
|
|
BINDING
MOLECULES FOR HUMAN FACTOR VIII AND FACTOR VIII-LIKE
PROTEINS
|
|
ISSUED
|
|
9/26/2006
|
|
9/26/2013
|
|
1/4/2019
|
| | | | | | | | | | | | | | | | | | | |
|
**100002
|
|
US
|
|
11/345,031
|
|
7,691,565
|
|
US
2006-0193829 A1
|
|
BINDING
MOLECULES FOR HUMAN FACTOR VIII AND FACTOR VIII-LIKE
PROTEINS
|
|
ISSUED
|
|
4/6/2010
|
|
4/6/2013
|
|
2/18/2019
|
| | | | | | | | | | | | | | | | | | | |
|
[*****]
|
|
[*****]
|
|
[*****]
|
|
|
|
|
|
[*****]
|
|
[*****]
|
|
|
|
[*****]
|
|
[*****]
|
*
Confidential Treatment Requested. Omitted portions filed with the
Commission.
** New Issued Patent
45
Schedule 3.12
(d)
[*****]
* Confidential Treatment
Requested. Omitted portions filed with the Commission.
46
Schedule 3.12
(g)
Abandoned,
Cancelled or Expired Patents
See
Schedule 3.12(b)
47
Schedule
3.15
Dyax's
Principal Place of Business and CEO
Principal Place of
Business:
000
Xxxxxxxxxx Xxxxxx
Xxxxxxxxx,
XX 00000
Chief Executive
Officer:
Xxxxxx
Xxxxxxxxxxx
48
Schedule
3.18(c)
[*****]
* Confidential Treatment
Requested. Omitted portions filed with the Commission.
49
Schedule
5.08
[*****]
* Confidential Treatment
Requested. Omitted portions filed with the Commission.
50
