OPTION AGREEMENT
Exhibit 10.1
THIS OPTION AGREEMENT (this “Option Agreement”) dated as of April 30, 2008 (“Effective
Date”) is between Alseres Pharmaceuticals, Inc. (f/k/a Boston Life Sciences, Inc.), a Delaware
corporation with offices at 00 Xxxx Xxxxxx, Xxxxxxxxx, XX 00000 (“Alseres”) and BioAxone
Therapeutic Inc., a Canadian corporation with offices at 0000, xxxx. Xxxx-Xxxxxxxx, 00x
xxxxx Xxxxxxxx, Xxxxxx X0X 0X0 Xxxxxx (“BA”).
Background
WHEREAS Alseres and BA entered into that certain License Agreement dated as of December 28,
2006 (“License Agreement”) whereby BA exclusively licensed to Alseres patent rights and know-how
relating to fusion proteins.
WHEREAS Alseres desires an option to amend the License Agreement and BA is willing to grant
such option to Alseres, on the terms and conditions set forth in this Option Agreement.
BA and Alseres agree as follows:
1. The terms used in this Option Agreement shall have the meaning set xxxx in the License
Agreement. All references to dollars are U.S. dollars.
2. Option. BA hereby grants to Alseres an option (the “Option”) to amend the
License Agreement (the “Amendment”) as described in Section 3 below. The term of the
Option (the “Option Period”) shall commence on the Effective Date and shall expire upon the
earlier of (a) the date of consummation of the sale or issuance of shares of capital stock of
Alseres (other than issuance of shares of capital stock of Alseres to officers, directors or
employees of, or consultants to, Alseres in their respective capacities as such), including the
sale of debt that is convertible into shares of capital stock of Alseres, which results in
aggregate gross proceeds (in one closing or a series of closings) to Alseres of not less than
Twenty-Five Million Dollars ($25,000,000) or more or (b) one hundred eighty (180) days after the
Effective Date. Alseres may exercise the Option at any time during the Option Period by providing
BA with notice of such exercise and simultaneously paying to BA the Option Fee described in Section
2 below. Upon such exercise, the Parties shall enter into the Amendment. In the event that
Alseres fails to exercise the Option by the end of the Option Period, the Option shall expire and
the License Agreement shall remain in full force and effect without amendment.
3. Option Fee. In consideration for the Option granted in Section 1, Alseres agrees
to pay to BA on or before the last day of the Option Period the amount of Seven Million Dollars
($7,000,000) (the “Option Fee”), which Option Fee shall be nonrefundable.
4. Negotiation of the Amendment. During the Option Period and upon confirmation by
Alseres that it intends to exercise the Option, Alseres and BA will cooperate to negotiate and
finalize the Amendment, which Amendment shall include the terms set forth on Schedule 1
hereto.
5. Confidentiality. Except as otherwise required by law (including (i) filings and
disclosures required by securities laws and exchange and Nasdaq rules or (ii) court or relevant
administrative order), the existence and content of this Option Agreement and the Parties’
arrangements herein are confidential information. In addition, secret, confidential or nonpublic
information disclosed by one Party to the other pursuant to the arrangements contemplated hereby
will be treated as confidential information of the disclosing Party. Any and all information
described herein as confidential information shall not be disclosed to any third party without the
consent of both Parties, provided that either Party may disclose such information to its affiliates
and employees who have a need to know such information in order to effectuate the purposes of this
Option Agreement, as well as to consultants, agents, investors and advisors of such Party, provided
such consultants, agents, investors and advisors have committed to maintain the confidentiality of
such information.
6. Representations and Warranties. Each of BA and Alseres hereby represents and
warrants that (a) such Party has the power and authority to enter into and to perform its
obligations under this Option Agreement and the Amendment; (b) the execution, delivery and
performance by such Party of this Option Agreement and the negotiation, execution, delivery and
performance by such Party of the Amendment have been duly authorized by all necessary corporate
action on the part of such Party; (c) this Option Agreement constitutes the legal, valid and
binding obligation of such Party, enforceable against such Party in accordance with its terms; and
(d) the terms of this Option Agreement do not and will not breach or conflict with any other
agreement or arrangement to which such Party is a party.
7. Notices. Any notice required or permitted to be given hereunder shall be in
writing and shall be (a) sent by registered or certified mail, return receipt requested, postage
prepaid, (b) sent via a reputable overnight courier service, (c) sent by telefacsimile transmission
with an original following the same day via a reputable overnight courier service or (d) personally
delivered, in each case properly addressed as set forth below. A party may change its notice
address by giving notice to the other party in the manner herein provided. A notice shall be
deemed effective upon receipt by the party to whom it is addressed.
If to Alseres:
|
Alseres Pharmaceuticals, Inc. | |
| 00 Xxxx Xxxxxx | ||
| Xxxxxxxxx, XX 00000 | ||
| Attention: EVP & CFO | ||
| Telephone: (000) 000-0000 | ||
| Facsimile: (000) 000-0000 | ||
If to BA:
|
BioAxone Therapeutic Inc. | |
| 0000, xxxx. Xxxx-Xxxxxxxx, 00x xxxxx | ||
| Xxxxxxxx, Xxxxxx | ||
| X0X 0X0 | ||
| Xxxxxx | ||
| Attention: President & Board of Directors | ||
| Telephone: (000) 000-0000 | ||
| Facsimile: (000) 000-0000 |
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8. Governing Law. This Option Agreement shall be governed by and construed in
accordance with the laws of the state New York, without reference to its internal conflicts of law
principles. Either party may pursue any legal or equitable remedies available to it by filing a
claim in the state or federal courts located in the state of New York and each party hereby
consents to the exclusive jurisdiction of such courts. This Option Agreement will inure to the
benefit of, and be binding upon, the legal representatives, successors and assigns of the Parties.
8. Assignment. This Option Agreement and the rights established hereunder may not be
assigned or transferred by either Party without the prior written consent of the other Party;
provided, however that either Party may assign this Option Agreement and the rights established
hereunder without consent (a) to an Affiliate of such Party (in which case such Party shall remain
primarily liable) or (b) in connection with a sale or transfer of such Party’s business to which
this Option Agreement relates.
9. Counterparts. This Option Agreement may be executed in two or more counterparts,
each of which shall be deemed an original but all of which together shall constitute one and the
same instrument. This Option Agreement may be executed by facsimile signature.
[Remainder of Page Intentionally Left Blank]
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The undersigned duly authorized parties have set forth their signatures as of the dates
indicated below their respective signatures.
| BIOAXONE THERAPEUTIC INC. | ||||||||
| By: | /s/ Xxxxxx Xxxxxxx | |||||||
| Print Name: | Xxxxxx Xxxxxxx | |||||||
| Title: | Senior Vice-President — Life Sciences | |||||||
| Date: | April 30th, 2008 | |||||||
| By: | /s/ Xxxxx Xxxxxxxx | |||||||
| Print Name: | Xxxxx Xxxxxxxx | |||||||
| Title: | Managing Partner, Life Sciences | |||||||
| Date: | May 1st, 2008 | |||||||
| ALSERES PHARMACEUTICALS, INC. | ||||||||
| By: | /s/ Xxxxxxx X. Xxxx, Xx. | |||||||
| Print Name: | Xxxxxxx X. Xxxx, Xx. | |||||||
| Title: | EVP & CFO | |||||||
| Date: | May 2nd, 2008 | |||||||
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SCHEDULE 1
AMENDMENT TERMS
Fully Paid-up License: BA will grant to Alseres a fully paid-up, irrevocable, perpetual worldwide
license with the right to sub-license under the Licensed Intellectual Property as such term is
defined in the License Agreement. BA will be granted a right of first negotiation to re-acquire
the Licensed Products should Alseres abandon development or fail to make a minimum annual
investment of five hundred thousand dollars ($500,000) in the development of Licensed Products.
University of Montreal: BA will take any and all steps necessary to assign its rights and
obligations under the University of Montreal license to Alseres and Alseres will work with BA to
effect such transfer and accept such rights and obligations.
Development and Diligence: Any and all requirements imposed on Alseres by the License Agreement to
develop and/or commercialize Products (as defined in the License Agreement), maintain insurance,
keep the Master Cell Bank intact and other similar obligations will be eliminated including but not
limited to any and all rights of BA to terminate the licensed based on Diligence milestones (as
defined in the License Agreement).
Financial Provisions: All of the financial provisions of Sections 4.2 through 4.9 of the License
Agreement will be eliminated including, but not limited to, all milestone payments and provisions
related to minimum royalties and the following new financial provisions will be substituted:
2009 Payment: Alseres will pay cash in the sum of Seven Million Dollars ($7,000,000) to BA
(i) on or before December 31, 2009, or (ii) upon BA’s written request, if Alseres assigns
all of its rights and interest in and to the Licensed Intellectual Property (including the
grant of an exclusive sublicense of all such rights and interest to a single sublicensee)
prior to December 31, 2009.
Royalties on Net Sales: Alseres will pay to BA royalties on Calendar Year Net Sales of
Licensed Products used to treat acute spinal cord injuries (as such terms are defined in the
License Agreement) equal to four percent (4%) of such Net Sales. For all other Calendar
Year Net Sales of Licensed Products used in indications other than acute spinal cord injury,
Alseres will pay to BA royalties of one percent (1%). Alseres’ obligation to pay royalties
shall expire on the earlier of the Royalty Expiration Date as such term is defined in the
License Agreement or December 31, 2021.
Intellectual Property and Related: BA will transfer to Alseres all of its rights, title and
interest in and to any and all Patents and Know-How owned by BA and included in the Licensed
Intellectual Property and any materials related thereto, including but not limited to the Master
Cell Bank, and will instruct its counsel that all cases are to be transferred to Alseres with
Alseres as the client.
Remedies: The sole remedy available to BA for the failure of Alseres to make required payments as
set forth in the Amendment will be an action at law to recover said required payment or payments.
In no event will BA retain any rights to terminate the fully paid-up license.
- Schedule 1 - 2
