Exhibit 99.3
EXECUTION VERSION
March 5, 2009
sanofi-aventis U.S. LLC
00 Xxxxxxxxx Xxxxx
Xxxxxxxxxxx, Xxx Xxxxxx 00000
Re: Guarantee of AEterna Zentaris GmbH's obligations under the Development,
Commercialization and License Agreement and Related Agreements.
Dear sanofi-aventis:
The guarantee set forth in this letter agreement (the "AGREEMENT") is provided
by AEterna Zentaris Inc. ("PARENT") in favor of sanofi-aventis U.S. LLC
("LICENSEE") with regard to Parent's guarantee of performance and payment
obligations of AEterna Zentaris GmbH ("LICENSOR") under that certain
Development, Commercialization and License Agreement (the "LICENSE AGREEMENT"),
dated as of even date herewith, by and between Licensor and Licensee, and those
other agreements between Licensee and Licensor relating to the development and
commercialization of Licensed Products in the Field in Territory and
Manufacturing of Licensed Products therefor (each such capitalized term, as
defined in the License Agreement), including without limitation (a) that certain
Trademark License Agreement entered into of even date herewith and (b) that
certain Pharmacovigilance Agreement and that certain Commercial Supply
Agreement, each of which is to be entered into by and between Licensee and
Licensor pursuant to the License Agreement. The License Agreement and all such
other agreements are collectively referred to herein as the "CETRORELIX
AGREEMENTS." Parent and Licensee are each individually referred to herein as a
"PARTY" and collectively, as the "PARTIES."
As an inducement to Licensee to consummate the transactions contemplated by the
Cetrorelix Agreements, Parent is executing and delivering this Agreement upon
the execution and delivery of the License Agreement. For good and valuable
consideration, the receipt and adequacy of which is hereby acknowledged, the
Parties hereby agree as follows:
1. GUARANTEE
1.1 GUARANTEED OBLIGATIONS. Subject to the terms of this Agreement, Parent
hereby unconditionally and irrevocably guarantees to Licensee the full, complete
and timely (a) performance of and compliance with all of Licensor's obligations
under the Cetrorelix Agreements and (b) payment of all amounts which may
hereafter become
payable by Licensor pursuant to the Cetrorelix Agreements (collectively, the
"GUARANTEED OBLIGATIONS"). The provisions of this Agreement shall continue in
full force and effect until all obligations of Licensor under all Cetrorelix
Agreements (including without limitation all obligations surviving the
expiration or termination of any such agreement) have been satisfied in full.
1.2 OBLIGATIONS UNCONDITIONAL. Subject to the terms of this Agreement, the
obligations of Parent under this Section 1 shall constitute a present and
continuing guarantee of payment and performance and shall be absolute and
unconditional. Without limiting the generality of the foregoing (but subject to
Section 2.2 hereof), the occurrence of any one or more of the following shall
not alter or impair the liability of Parent hereunder: (a) Change of Control (as
defined in the License Agreement) of Parent or Licensor; (b) any insolvency,
bankruptcy, reorganization, receivership, assignment for the benefit of
creditors, liquidation or similar proceedings with respect to Parent or
Licensor; or (c) the modification, amendment, renewal or extension of the terms
or conditions of any Cetrorelix Agreement, provided such modification,
amendment, renewal or extension is executed in accordance with the terms of the
applicable Cetrorelix Agreement.
1.3 WAIVER. Parent hereby waives notice of (a) any action taken or omitted
in reliance hereon, (b) any default with respect to any Guaranteed Obligation
and (c) any presentment, demand, protest or notice of any kind. Parent also
waives any requirement that Licensee proceed first against Licensor under any
Cetrorelix Agreement with respect to any Guaranteed Obligation before proceeding
hereunder. Notwithstanding any other provision of this Agreement, in any claim
for payment or performance of the Guaranteed Obligations, Parent shall be
entitled to assert any defenses that would be available to Licensor if Licensor
were the party against which the claim for payment or performance was brought to
the same extent as if Parent were the primary obligor with respect to such
claim.
2. MISCELLANEOUS
2.1 REPRESENTATIONS AND WARRANTIES. Parent has the power and authority and
the legal right to enter into this Agreement and to perform its obligations
hereunder. This Agreement has been duly executed and delivered on behalf of
Parent and constitutes a legal, valid and binding obligation of Parent.
2.2 ASSIGNABILITY; BINDING EFFECT. Parent may assign this Agreement only
with the express written consent of Licensee. Licensee may assign this Agreement
(a) with the express written consent of Parent or (b) to a permitted assignee of
Licensee in compliance with clause (b) of the proviso to Section 15.3.1 of the
License Agreement. Any assignment of this Agreement in violation of this Section
2.2 shall be null and void and of no force and effect. This Agreement shall be
binding upon, inure to the benefit of, and be enforceable by the successors and
permitted assigns of Parent and Licensee.
2.3 GOVERNING LAW; JURISDICTION AND VENUE. This Agreement shall be
governed by and construed in accordance with the laws of the State of New York,
excluding any conflicts or choice of law rule or principle that might otherwise
refer construction or interpretation of this Agreement to the substantive law of
another jurisdiction. The Parties hereby irrevocably and unconditionally consent
to the exclusive jurisdiction of the courts of the State of New York for any
action, suit or proceeding (other than appeals therefrom) arising out of or
relating to this Agreement, and agree not to commence any action, suit or
proceeding (other than appeals therefrom) related thereto except in such courts.
2.4 AMENDMENTS. This Agreement constitutes the entire agreement of the
Parties with respect to the subject matter hereof. This Agreement may be amended
only in a writing signed by Xxxxxx and Licensee and any waiver of rights
hereunder must be set forth in writing signed by the Party against whom the
waiver is to be effective.
AEterna Zentaris Inc.
By: (SIGNED)
----------------------------
Name: X. Xxxxx
Title: President and CEO
ACCEPTED AND AGREED:
sanofi-aventis U.S. LLC
By: (SIGNED)
----------------------------
Name: Xxxx X. X'Xxxxx
Title: Vice President Market Access
and Business Development
