AGREEMENT
Exhibit 10.26
AGREEMENT
WHEREAS, Anthera Pharmaceuticals, Inc., a Delaware corporation having its principal place of
business at 00000 Xxxxxxxxxx Xxxx., Xxxxx X, Xxxxxxx, Xxxxxxxxxx 00000, X.X.X. (the “Company”),
Shionogi & Co., Ltd., with a place of business at 0-0, Xxxxxxxxxx 0-xxxxx, Xxxx-xx, Xxxxx, Xxxxx
(“Shionogi”) and Xxx Xxxxx and Company, an Indiana corporation having its principal place of
business at Lilly Xxxxxxxxx Xxxxxx, Xxxxxxxxxxxx, Xxxxxxx 00000, X.X.X. (“Xxx Xxxxx”) entered into
the License Agreement dated July 31, 2006 concerning pharmaceutical products that inhibit
phospholipase (the “License Agreement”);
WHEREAS, Article 3, Section 3(a) of the License Agreement provides for a Milestone Payment by the
Company to Shionogi and Xxx Lilly of $3,000,000 upon the initiation of the first Phase 3 clinical
trial of each Licensed Product in an Oral Formulation, fifty percent (50%) or US$1,500,000 of which
is payable to Shionogi (the “Phase 3 Milestone Payment”);
WHEREAS, pursuant to that certain Agreement between the Company and Shionogi effective as of
September 7, 2009 (the “Amendment Agreement”), the Company and Shionogi (i) extended the date on
which the Phase 3 Milestone Payment associated with the commencement of Phase 3 clinical trials of
varespladib methyl (“A-002”) is due to Shionogi and (ii) increased the amount of the Phase 3
Milestone Payment due to Shionogi from US$1,500,000 to US$1,750,000 in consideration for such
extension;
WHEREAS the Company desires to issue, and Shionogi desires to receive, shares of the Company’s
common stock in satisfaction of the Company’s payment obligation with respect to such Milestone
Payment;
NOW, THEREFORE, in consideration for the premises and for other good and lawful consideration,
receipt of which is hereby acknowledged, the parties agree as follows.
1. Terms. Capitalized terms used but not otherwise defined herein shall have the meanings
ascribed to such terms in the License Agreement.
2. Agreement. Each of the Company and Shionogi agree that (i) the Phase 3 Milestone Payment
associated with the commencement of a Phase 3 clinical trial of A-002 may be paid in the form of
shares of the Company’s Common Stock (the “Payment Shares”); (ii) such Payment Shares may be issued
at any time prior to or promptly following the applicable Payment Date (as such term is defined in
the Amendment Agreement); (iii) such Payment Shares shall be valued at the price per share at which
shares of the Company’s Common Stock are sold to the public in the Company’s initial public
offering minus any per-share underwriting discounts, commissions or fees; (iv) such Payment Shares
shall be issued on terms no less favorable to Shionogi than those terms received by investors
pursuant to that certain Stock Purchase Agreement dated September 25, 2009 among the Company and the
investors party thereto; and (v) upon the issuance by the Company of Payment Shares to Shionogi
having an aggregate value, calculated pursuant to subsection (iii) above, of US$1,750,000, the
Company’s obligation in respect of the Phase 3 Milestone Payment associated with the commencement
of a Phase 3 clinical trial of A-002 shall be satisfied in full.
3. Counterparts; Facsimiles. This Agreement may be executed in one or more counterparts, each
of which shall be an original and all of which shall constitute together the same document. For
purposes of this Agreement and any other document required to be delivered pursuant to this
Agreement, facsimiles of signatures shall be deemed to be original signatures. In addition, if any
of the parties sign facsimile copies of this Agreement, such copies shall be deemed originals.
4. Further Acts. Each party agrees to execute, acknowledge and deliver such further
instruments, and to do all such other acts, as may be necessary or appropriate in order to carry
out the purposes and intent of this Agreement.
5. Other terms and Conditions. All other remaining terms and conditions of the License
Agreement (which relate to Shionogi and the Company) are unchanged and remain in full force and
effect.
[signature page follows.]
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In witness whereof, the parties have caused this Agreement to be executed by their duly
authorized officers as of the date set forth below.
| Anthera Pharmaceuticals, Inc. | Shionogi & Co., Ltd. | |||||
By: |
/s/ Xxxx Xxxxx | By: | /s/ Xxxx Xxxxxxxxx | |||
Name: |
Xxxx Xxxxx | Name: | Xxxx Xxxxxxxxx | |||
Title: |
President & Chief Executive Officer | Title: | President and Representative Director | |||
Date: |
February 24, 2010 | Date: | February 24, 2010 | |||
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