AMENDMENT #2 TO AMENDED AND RESTATED BUSINESS TRANSFER AND SUBSCRIPTION AGREEMENT
[*] = Certain confidential information contained in this document, marked by brackets, has been omitted and filed separately with the Securities and Exchange Commission pursuant to Rule 406 of the Securities Act of 1933, as amended.
AMENDMENT #2 TO
AMENDED AND RESTATED BUSINESS TRANSFER AND SUBSCRIPTION AGREEMENT
THIS AMENDMENT #2 TO AMENDED AND RESTATED BUSINESS TRANSFER AND SUBSCRIPTION AGREEMENT (this “Amendment”) is made and entered into as of January 30, 2018 by and among ASTRAZENECA AB (PUBL), a company incorporated in Sweden under no. 556011-7482 (the “Sweden Seller”), ASTRAZENECA UK LIMITED, a company incorporated in England under no. 3674842 (the “UK Seller”), ASTRAZENECA PHARMACEUTICALS LP, a Delaware limited partnership (the “US Seller”, and together with the Sweden Seller and the UK Seller, the “AZ Entities”), ENTASIS THERAPEUTICS LIMITED, a private limited company incorporated in England and Wales (the “UK Company”), and ENTASIS THERAPEUTICS INC., a Delaware corporation and a wholly owned subsidiary of the UK Company (the “US Company”, and together with the UK Company, the “Companies”). Capitalized terms not herein defined shall have the meanings ascribed to them in the Agreement (as defined below).
RECITALS
WHEREAS, the AZ Entities and the Companies previously entered into that certain Amended and Restated Business Transfer and Subscription Agreement (the “Agreement”), dated as of March 29, 2016, as amended on August 28, 2017, and the AZ Entities and the Companies have agreed to further amend the Agreement as set forth herein.
NOW, THEREFORE, in consideration of the foregoing recitals and for other consideration, the adequacy and sufficiency of which is hereby acknowledged, the parties hereto agree as follows:
SECTION 1
AMENDMENTS
1.1 Amendments to Agreement.
1.1.1 Exhibit 2.05(e)(1) to the Agreement is hereby replaced in its entirety to read as follows:
“1. AZD-0914 Royalty: The UK Company will pay the UK Seller and the Sweden Seller, in accordance with Section 2.05(e) of this Agreement, an amount calculated by multiplying (x) the percentage set forth under the heading “AZD-0914 Royalty” opposite the applicable amount of annual Net Sales of AZD-0914 Products set forth under the heading “Annual Net Sales of AZD-0914 Products” in the following table by (y) the applicable annual Net Sales of AZD-0914 Products:
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Annual Net Sales |
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AZD-0914 Royalty |
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For that portion of annual Net Sales of AZD-0914 Products < $[*] |
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Lower of [*]% of Net Sales or [*]% of any royalties received by the Companies in respect of AZD-0914 or received by any of its assignees, as applicable. |
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For that portion of annual Net Sales of AZD-0914 Products > $[*] but < $[*] |
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Lower of [*]% of Net Sales or [*]% of any royalties received by the Companies in respect of AZD-0914 or received by any of its assignees, as applicable. |
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For that portion of annual Net Sales of AZD-0914 Products > $[*] |
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Lower of [*]% of Net Sales or [*]% of any royalties received by the Companies in respect of AZD-0914 or received by any of its assignees, as applicable. |
Notwithstanding anything contained herein, sales of an AZD-0914 Product by the Global Antibiotic Research and Development Partnership outside of the countries set forth below (as revised from time to time) shall be considered Net Sales of an AZD-0914 Product for purposes of this Agreement, but shall not be Royalty bearing. Upon written notice to the UK Seller, the UK Company shall advise the UK Seller of any changes to the list of countries set forth in this Exhibit 2.05(e)(1).
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SECTION 2
MISCELLANEOUS
2.1 Entire Agreement. This Amendment and the Agreement shall constitute the entire agreement between the parties hereto pertaining to the subject matter hereof and thereof.
2.2. Severability. If any provision of this Amendment is found to be illegal or unenforceable, the other provisions shall remain effective and enforceable to the greatest extent permitted by law.
2.3 No Waiver. Other than as expressly set forth herein, this Amendment does not waive or modify any portion of the Agreement, which otherwise remain in full force and effect. No waiver of any provision of the Agreement or this Amendment is effective unless made in a writing signed by a duly authorized representative of each party.
2.4 Counterparts. This Amendment may be executed in multiple counterparts, each of which shall be considered an original, and all of which, when taken together, shall constitute one and the same document.
{Remainder of Page Intentionally Left Blank}
[*] = Certain confidential information contained in this document, marked by brackets, has been omitted and filed separately with the Securities and Exchange Commission pursuant to Rule 406 of the Securities Act of 1933, as amended.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be executed as of the day and year first above written.
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a director, in the presence of: |
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[*] = Certain confidential information contained in this document, marked by brackets, has been omitted and filed separately with the Securities and Exchange Commission pursuant to Rule 406 of the Securities Act of 1933, as amended.
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ASTRAZENECA PHARMACEUTICALS LP |
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an authorized signatory, in the presence of: |
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[*] = Certain confidential information contained in this document, marked by brackets, has been omitted and filed separately with the Securities and Exchange Commission pursuant to Rule 406 of the Securities Act of 1933, as amended.
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acting by Manoussos Perros, |
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a director, in the presence of: |
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[*] = Certain confidential information contained in this document, marked by brackets, has been omitted and filed separately with the Securities and Exchange Commission pursuant to Rule 406 of the Securities Act of 1933, as amended.