AGREEMENT
Exhibit 10.25
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 $1,500,000 of which
is payable to Xxx Xxxxx (the “Phase 3 Milestone Payment”);
WHEREAS, pursuant to that certain Agreement between the Company and Xxx Lilly effective as of
September 15, 2009 (the “Amendment Agreement”), the Company and Xxx Xxxxx (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 Xxx Lilly and (ii) increased the amount of the Phase 3
Milestone Payment due to Xxx Xxxxx from $1,500,000 to $1,750,000 in consideration for such
extension;
WHEREAS the Company desires to issue, and Xxx Lilly 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 Xxx Xxxxx agree that:
(a) if the closing of the Company’s initial public offering
(the “IPO”) occurs prior to the applicable Payment Date (as such term is defined in the
Amendment Agreement) for the Phase 3 Milestone Payment, then (i) the Phase 3 Milestone Payment associated with the commencement of a
Phase 3 clinical trial of A-002 will be paid in the form of fully paid and non-assessable shares of the Company’s
Common Stock, free and clear of any restrictions on transfer other than those imposed by applicable securities laws (the “Payment Shares”); (ii) such Payment Shares will be
issued within ten (10) business days after the closing of the IPO; (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 IPO minus any per-share underwriting discounts, commissions or fees paid by the Company in the IPO; (iv) such Payment Shares
shall be issued on terms no less favorable to Xxx Lilly 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 Xxx Xxxxx
having an aggregate value, calculated pursuant to subsection (iii) above, of $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; and
(b) In the event the closing of the IPO does not occur prior to the applicable
Payment Date, the Phase 3 Milestone Payment shall be made in cash as contemplated in the Amendment Agreement.
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 Xxx Lilly 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. | Xxx Xxxxx and Company Incorporated | |||
| By: | /s/ Xxxx Xxxxx | By: | /s/ Xxxx Xxxxxxx | |
| Name: | Xxxx Xxxxx | Name: | Xxxx Xxxxxxx | |
| Title: | President & Chief Executive Officer | Title: | Sr. Vice President, Corp. Strategy & Business Development | |
| Date: | January 28, 2010 | Date: | January 28, 2010 | |
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