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10-K
Ultragenyx Pharmaceutical Inc. · Feb 18, 4:59 PM ET
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Ultragenyx Pharmaceutical Inc. 10-K
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Contents
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Article 1 DEFINED TERMS AND RULES OF CONSTRUCTION
Section 1.1 Definitions. As used in this Agreement, the following terms shall have the following meanings:
Section 1.2 Certain Interpretations. Except where expressly stated otherwise in this Agreement, the following rules of interpretation apply to this Agreement:
Section 1.3 Headings. The table of contents and the descriptive headings of the several Articles and Sections of this Agreement and the Exhibits and Schedules are for convenience only, do not constitute a part of this Agreement and shall not control or affect, in any way, the meaning or interpretation of this Agreement.
Section 1.4 Deliverables. To the extent that a party (the “delivering party”) is required to give any notice or make any deliverable to another party (the “receiving party”) pursuant to both this Agreement and the 2022 RPA, the delivering party shall be required to deliver only one copy of such notice or deliverable to the receiving party in satisfaction of its obligations under both agreements.
Article 2PURCHASE, SALE AND ASSIGNMENT OF THE PURCHASED INTEREST
Section 2.1 Closing; Purchase Price. Upon the terms and subject to the conditions of this Agreement, at the Closing, Seller shall sell, transfer, assign and convey to Buyer, and Buyer shall purchase, acquire and accept from Seller, free and clear of all Liens, the Purchased Interest. The purchase price to be paid to Seller for the sale, transfer, assignment and conveyance of the Purchased Interest to Buyer is the Purchase Price.
Section 2.2 No Assumed Obligations, Etc. Notwithstanding any provision in this Agreement to the contrary, Buyer is purchasing, acquiring and accepting only the Purchased Interest, and is not assuming any liability or obligation of Ultragenyx or Seller of whatever nature, whether presently in existence or arising or asserted hereafter, under the License Agreement or otherwise, all of which liabilities and obligations shall remain liabilities or obligations of Ultragenyx or Seller, as the case may be, and as between Ultragenyx or Seller, on the one hand, and Buyer, on the other hand, Ultragenyx and Seller shall exclusively remain jointly and severally responsible for the satisfaction and performance thereof (the “Excluded Liabilities and Obligations”). For the avoidance of doubt, the Excluded Liabilities and Obligations shall include any deductions or withholdings made by the Licensee (or any of its Affiliates) from any payment of Royalties on account of Taxes that arise as a result of amounts paid to Ultragenyx (including any assignee thereof) pursuant to the License Agreement prior to or following the Closing Date, other than Tax deductions or withholdings (including any interest and penalties thereon or related thereto) that are required under Applicable Law as a result of the payment of Royalties to or for the benefit of Seller. Except as specifically set forth herein in respect of the Purchased Interest purchased, acquired and accepted hereunder, Buyer does not, by such purchase, acquisition and acceptance, acquire any other contract rights of Ultragenyx or Seller under the License Agreement or any other assets of Ultragenyx or Seller.
Section 2.3 True Sale. It is the intention of the parties hereto that the sale, transfer, assignment and conveyance contemplated by this Agreement constitute a sale of the Purchased Interest from Seller to Buyer (and not a financing transaction, borrowing or loan) for all applicable purposes. Accordingly, Seller shall treat the sale, transfer, assignment and conveyance of the Purchased Interest as a sale of an “account” or a “payment intangible” (as appropriate) in accordance with the UCC, and Seller hereby authorizes Buyer to file financing statements (and continuation statements with respect to such financing statements when applicable) naming Seller as the debtor and Buyer as the secured party in respect of the Purchased Interest. Not in derogation of the foregoing statement of the intent of the parties hereto in this regard, and for the purposes of providing additional assurance to Buyer in the event that, despite the intent of the parties hereto, the sale, transfer, assignment and conveyance contemplated hereby is hereafter held not to be a sale, Seller does hereby grant to Buyer, as security for the obligations of Seller hereunder, a first priority security interest in and to all right, title and interest of Seller, in, to and under the Purchased Interest and any “proceeds” (as such term is defined in the UCC) thereof, and Seller does hereby authorize Buyer, from and after the Closing, to file such financing statements (and continuation statements with respect to such financing statements when applicable) as are necessary to perfect such security interest.
Article 3CLOSING
Section 3.1 Closing; Payment of Purchase Price.
Section 3.2 Closing Certificates.
Section 3.3 Bill of Sale. At the Closing, upon confirmation of the receipt of the Purchase Price, Seller shall deliver to Buyer a duly executed bill of sale evidencing the sale, transfer, assignment and conveyance of the Purchased Interest, substantially in the form attached hereto as Exhibit B (the “Bill of Sale”).
Section 3.4 [Reserved].
Section 3.5 Legal Opinion. At the Closing, Gibson, Dunn & Crutcher LLP, as counsel to Ultragenyx and Seller, shall deliver to Buyer a duly executed legal opinion in the form previously agreed by the parties hereto (the “Opinion”).
Section 3.6 Form W-9. At the Closing, each of Ultragenyx and Seller shall deliver to Buyer a valid, properly executed IRS Form W-9 certifying that it is exempt from U.S. federal withholding tax and “backup” withholding tax.
Section 3.7 Form W-8IMY and W-8BEN-E. At the Closing, Buyer shall deliver to Seller and Ultragenyx a valid, properly executed IRS Form W-8IMY, accompanied by IRS Form W-8BEN-E for each beneficial owner, certifying that Buyer and each beneficial owner is exempt from U.S. federal withholding tax with respect to any and all payments in respect of the Purchased Interest.
Section 3.8 Data Room. Ultragenyx shall instruct TD Cowen to deliver to Buyer, within [***] Business Days following the Closing, an electronic copy of all of the information and documents posted to the virtual data room established by TD Cowen as of the Effective Date in connection with the transactions contemplated hereby and made available to Buyer.
Article 4REPRESENTATIONS AND WARRANTIES
Section 4.1 Seller’s and Ultragenyx’s Representations and Warranties. Except as set forth in the Disclosure Schedule, Seller and Ultragenyx jointly and severally represent and warrant to Buyer that as of the Effective Date:
Section 4.2 Buyer’s Representations and Warranties. Buyer represents and warrants to Seller and Ultragenyx that as of the Effective Date:
Section 4.3 No Implied Representations and Warranties. EXCEPT AS EXPRESSLY SET FORTH IN Section 4.1, NEITHER SELLER NOR ULTRAGENYX MAKES ANY REPRESENTATION OR WARRANTY, EXPRESSED OR IMPLIED, AT LAW OR IN EQUITY, INCLUDING WITH RESPECT TO MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE, AND ANY SUCH REPRESENTATIONS OR WARRANTIES ARE HEREBY EXPRESSLY DISCLAIMED. BUYER acknowledges that, except as specifically provided in this Article 4 and the Disclosure Schedule, NEITHER Seller NOR Ultragenyx has assumed ANY responsibilities of any kind HEREUNDER with respect to any act or omission of Licensee with respect to the design, development, manufacture, use, sale, distribution, marketing or other activities of Licensee with respect to ANY OF THE Licensed Products.
Article 5CONDITIONS TO CLOSING
Section 5.1 Conditions to Buyer’s Obligations. The obligations of Buyer to consummate the transactions contemplated hereunder on the Closing Date are subject to the satisfaction or waiver, at or prior to the Closing Date, of each of the following conditions precedent.
Section 5.2 Conditions to Seller’s Obligations. The obligations of Seller and Ultragenyx to consummate the transactions contemplated hereunder on the Closing Date are subject to the satisfaction or waiver, at or prior to the Closing Date, of each of the following conditions precedent:
Article 6COVENANTS
Section 6.1 Disclosures. Except for a press release previously approved in form and substance by Seller, Ultragenyx and Buyer or any other public announcement using substantially the same text as such press release, neither Buyer, Seller nor Ultragenyx shall, and each party hereto shall cause its respective Representatives, Affiliates and Affiliates’ Representatives not to, issue a press release or other public announcement or otherwise make any public disclosure with respect to this Agreement or the subject matter hereof without the prior written consent of the other party hereto (which consent shall not be unreasonably withheld, conditioned or delayed), except as may be required by Applicable Law or stock exchange rule (in which case the party hereto required to make the press release or other public announcement or disclosure shall allow the other party hereto reasonable time to comment on such press release or other public announcement or disclosure in advance of such issuance and shall consider such comments in good faith).
Section 6.2 Payments of Purchased Interest.
Section 6.3 Royalty Reduction. If Licensee exercises any Royalty Reduction against any payment of the Royalty, such Royalty Reduction shall not reduce any payment of the Purchased Interest otherwise payable to Buyer, and if such Royalty Reduction reduces any payment of the Purchased Interest to less than the full amount of the Royalty, then Seller shall promptly (and in any event within [***] Business Days following the payment of the Royalty affected by such Royalty Reduction) make a true-up payment to Buyer such that Buyer receives the full amount of such Purchased Interest payments that would have been payable to Buyer had such Royalty Reduction not occurred.
Section 6.4 Royalty Reports; Notices and Other Information from the Licensee. Subject to Section 1.4, promptly (and in any event within [***] Business Days) following the receipt by Ultragenyx of any Royalty Report or other material notices or correspondence relating, directly or indirectly, to the Royalty or the Licensed Product in the Profit Share Territory that has been provided to Ultragenyx under, or in respect of, the License Agreement, Ultragenyx shall furnish a true, correct and complete copy of the same to Buyer. Without limiting the generality of the foregoing, Ultragenyx shall deliver to Buyer true, correct and complete copies of all minutes from and meeting materials of the JSC regarding (a) the application of Section 13.3 of the License Agreement to the Profit Share Territory, (b) any pharmaceutical products (other than the Licensed Product) targeting FGF23 or its receptor for any indication in the Field in the Profit Share Territory, (c) the supply chain for the Licensed Product for the Profit Share Territory, or (d) the application and calculation of tariffs, whether effected or proposed, pertaining to the importation of the Licensed Product into the Profit Share Territory; provided that, in each case (b), (c) and (d), such copies may be redacted to remove any information that does not relate to the Profit Share Territory.
Section 6.5 Notices and Other Information to the Licensee. Ultragenyx shall not send (or refrain from sending), without the prior written consent of Buyer, any material written notice or correspondence to Licensee that (a) relates, directly or indirectly, to the Royalty or the Profit Share Territory or (b) would, or relates directly or indirectly to a matter that would, reasonably be expected (with or without the giving of notice or passage of time, or both) to result in a Material Adverse Effect.
Section 6.6 Inspections and Audits of Licensee. Ultragenyx shall consult and coordinate with Buyer regarding the time, manner and conduct of any inspection or audit of Licensee under Section 9.2.1 of the License Agreement. At the written request of Buyer upon not less than [***] days’ prior written notice, Ultragenyx shall, to the extent permitted under Section 9.2.1 of the License Agreement, provide written notice to Licensee to cause an inspection or audit during normal business hours not more than [***] each calendar year, and under a customary non-disclosure agreement, by an independent, mutually agreed public accounting firm to be made for the purpose of determining the correctness of Royalty payments made under the License Agreement. For greater certainty, if Buyer exercises its right to cause an inspection or audit to be conducted pursuant to Section 6.6 of the 2022 RPA, Buyer shall not be entitled to
cause an inspection or audit to be conducted pursuant to this Section 6.6 in the same calendar year. With respect to any inspection or audit requested by Buyer with respect to the Royalty, Ultragenyx shall, for purposes of Section 9.2.1 of the License Agreement, select such independent, mutually agreed public accounting firm as Buyer shall recommend for such purpose (as long as such independent certified public accountant is reasonably acceptable to Licensee as required by Section 9.2.1 of the License Agreement). Buyer shall pay Ultragenyx the expenses of any inspection or audit requested by Buyer (including the fees and expenses of such independent public accounting firm designated for such purpose) that would otherwise be borne by Ultragenyx pursuant to the License Agreement (if and as such expenses are actually incurred by Ultragenyx); provided, however, that as between Buyer and Ultragenyx, Ultragenyx shall be solely responsible for any of such fees and expenses that do not relate exclusively to the inspection or audit of Licensee in respect of sales of Licensed Product in the Profit Share Territory and the Royalty. Ultragenyx shall deliver to Buyer a copy of the results of any audit conducted pursuant to Section 9.2.1 of the License Agreement within [***] Business Days following Ultragenyx’s receipt thereof, with information redacted that Ultragenyx reasonably determines is not relevant for determining the correctness of Royalty payments made under the License Agreement.
Section 6.7 Amendment or Assignment of License Agreement. Ultragenyx shall not, except as Mutually Agreed, assign, amend, modify, supplement or restate (or consent to any assignment, amendment, modification, supplement or restatement of) any provision of the License Agreement. Subject to the foregoing, promptly, and in any event within [***] Business Days, following receipt by Ultragenyx of any final assignment, amendment, modification, supplement or restatement of the License Agreement, Ultragenyx shall furnish a copy of the same to Buyer.
Section 6.8 Maintenance of License Agreement. Ultragenyx shall comply in all material respects with its obligations under the License Agreement and shall not take any action or forego any action that would reasonably be expected to constitute a material breach or default thereof. Promptly, and in any event within [***] Business Days, after receipt of any (written or oral) notice from Licensee of an alleged breach or default under the License Agreement relating, directly or indirectly, to the Royalty or to the Licensed Products in the Profit Share Territory or of other material breach by Ultragenyx under the License Agreement, Ultragenyx shall give written notice thereof to Buyer, including delivering Buyer a copy of any such written notice. After consultation with Buyer and as Mutually Agreed, Ultragenyx shall use its reasonable best efforts to cure any such breach or default by it under the License Agreement and shall give written notice to Buyer upon curing any such breach or default. In connection with any dispute regarding an alleged breach that is related, directly or indirectly, to the Royalty or could reasonably be expected (with or without the giving of notice or passage of time, or both) to have a Material Adverse Effect, Ultragenyx shall employ such counsel, reasonably acceptable to Ultragenyx, as Buyer may select. Buyer and Ultragenyx shall pay (i) prior to January 1, 2028, [***] and [***], respectively, and (ii) from and after January 1, 2028, [***] and [***] respectively, of the costs and expenses of such counsel in connection with any dispute regarding any such breach by the Licensee (for greater certainty, whether such payment is made pursuant to this Agreement or the 2022 RPA), and Ultragenyx shall pay [***] of the costs and expenses of
such counsel in connection with any dispute regarding any such breach by Ultragenyx; provided that, for greater certainty, as between Buyer and Ultragenyx, Ultragenyx shall be solely responsible for all costs and expenses of counsel in connection with any dispute regarding a breach by Licensee to the extent relating to any jurisdiction other than the Profit Share Territory. Ultragenyx shall not, except as Mutually Agreed, (a) forgive, release or compromise any amount owed to or becoming owed to Ultragenyx under the License Agreement in respect of the Royalty or (b) waive any obligation of, or grant any consent to, the Licensee under, in respect of or related, directly or indirectly, to the Royalty. Ultragenyx shall not exercise or enforce its applicable rights under the License Agreement, or omit to do so, in any manner that would reasonably be expected (with or without the giving of notice or the passage of time, or both) to have a Material Adverse Effect. Without limiting the generality of the foregoing, Ultragenyx shall not, during the term of the License Agreement, waive its rights to enforce Sections 4.11.3 and/or 13.3 of the License Agreement, or fail to enforce such rights.
Section 6.9 Enforcement of License Agreement.
Section 6.10 Termination of License Agreement. Ultragenyx shall not, without the prior written consent of Buyer, (i) exercise any right to terminate the License Agreement, in whole or in part (but only if termination of such part could reasonably be expected (with or without the giving of notice or passage of time, or both) to have a Material Adverse Effect), (ii) agree with Licensee to terminate the License Agreement, in whole or in part (but only if termination of such part could reasonably be expected (with or without the giving of notice or passage of time, or both) to have a Material Adverse Effect), or (iii) take, or permit any Affiliate or sublicensee to take, any action that would reasonably be expected to give Licensee the right to terminate the License Agreement, in whole or in part (but only if termination of such part could reasonably be expected (with or without the giving of notice or passage of time, or both) to have a Material Adverse Effect). Ultragenyx shall not take any action, fail to take an action or permit an action to be taken, that would give Licensee the right to terminate the License Agreement under Section 15.2.1 or 15.2.2 thereof or Section 4 of Amendment No. 3.
Section 6.11 Preservation of Rights. Ultragenyx shall not, except as Mutually Agreed, hereafter sell, transfer, hypothecate, assign or in any manner convey or mortgage, pledge or grant a security interest or other encumbrance of any kind in any of its interest in any portion of the License Agreement or any of its interest in the Joint Invention Patents that could reasonably be expected (with or without the giving of notice or passage of time, or both) to have a Material Adverse Effect. Neither Ultragenyx nor Seller shall hereafter subject to a Lien (other than a Permitted Lien), sell, transfer, assign, convey title (in whole or in part), grant any right to, or otherwise dispose of any portion of the Royalty.
Section 6.12 Enforcement; Defense; Prosecution and Maintenance.
Section 6.13 Additional Covenants Regarding Seller.
Section 6.14 No Disposition of Royalty. Except as permitted by Section 10.3, Seller shall remain the exclusive owner of, and shall continue to have good and marketable title to, the Royalty free and clear of all Liens (other than Permitted Liens). Except as permitted by Section 11.3, Seller shall not sell, assign, transfer or convey, or grant any Lien (other than Permitted Liens) on, the Royalty or agree to do any of the foregoing.
Section 6.15 Efforts to Consummate Transactions. Subject to the terms and conditions of this Agreement, each of Seller, Ultragenyx and Buyer shall use its commercially reasonable efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things reasonably necessary under Applicable Law to consummate the transactions contemplated by this Agreement. Each of Buyer, Seller and Ultragenyx agrees to execute and deliver such other documents, certificates, agreements and other writings and to take such other actions as may be reasonably necessary in order to consummate or implement expeditiously the transactions contemplated by this Agreement and the Intercompany Sale Documents.
Section 6.16 Further Assurances. After the Closing, Seller, Ultragenyx and Buyer agree to execute and deliver such other documents, certificates, agreements and other writings and to take such other actions as may be reasonably necessary in order to give effect to the transactions contemplated by this Agreement and the Intercompany Sale Documents.
Section 6.17 Tax Matters.
Section 6.18 Sanctions Concerns; Anti-Bribery and Corruption.
Article 7CONFIDENTIALITY
Section 7.1 Confidentiality. Except as provided in this Article 7 or otherwise agreed in writing by the parties, the parties hereto agree that each party and its Affiliates (the “Receiving Party”) shall, and shall cause its Affiliates to, keep confidential, and shall not, and shall cause its Affiliates not to, publish, otherwise disclose or use for any purpose other than as provided for in this Agreement (which includes the exercise of any rights or the performance of any obligations hereunder) any information furnished to it or its Affiliates by or on behalf of the other party (the “Disclosing Party”) pursuant to this Agreement (such information, “Confidential Information” of the Disclosing Party), except for that portion of such information that:
Section 7.2 Authorized Disclosure.
Article 8INDEMNIFICATION
Section 8.1 General Indemnity. Subject to Section 8.3, from and after the Closing:
Section 8.2 Notice of Claims. If either a Buyer Indemnified Party, on the one hand, or a Seller Indemnified Party, on the other hand (such Buyer Indemnified Party on the one hand and such Seller Indemnified Party on the other hand being hereinafter referred to as an “Indemnified Party”), has suffered or incurred any Losses for which indemnification may be sought under this Article 8, the Indemnified Party shall so notify the other party from whom indemnification is sought under this Article 8 (the “Indemnifying Party”) promptly in writing describing such Loss, the amount or estimated amount thereof, if known or reasonably capable of estimation, and the method of computation of such Loss, all with reasonable particularity and
containing a reference to the provisions of this Agreement in respect of which such Loss shall have occurred. If any claim, action, suit or proceeding is asserted or instituted by or against a third party with respect to which an Indemnified Party intends to claim any Loss under this Article 8, such Indemnified Party shall promptly notify the Indemnifying Party of such claim, action, suit or proceeding and tender to the Indemnifying Party the defense of such claim, action, suit or proceeding. A failure by an Indemnified Party to give notice and to tender the defense of such claim, action, suit or proceeding in a timely manner pursuant to this Section 8.2 shall not limit the obligation of the Indemnifying Party under this Article 8, except to the extent such Indemnifying Party is actually prejudiced thereby.
Section 8.3 Limitations on Liability. No party hereto shall be liable for any consequential (including lost profits), punitive, special, indirect or incidental damages under this Article 8 (and no claim for indemnification hereunder shall be asserted) as a result of any breach or violation of any covenant or agreement of such party (including under this Article 8) in or pursuant to this Agreement. Notwithstanding the foregoing, Buyer shall be entitled to make indemnification claims, in accordance with the procedures set forth in this Article 8, for Losses that include any portion of the Purchased Interest that Buyer was or would have been entitled to receive but did not receive timely or at all due to any indemnifiable events under this Agreement, and such portion of the Purchased Interest shall not be deemed consequential, punitive, special, indirect, incidental damages or lost profits for any purpose of this Agreement. Other than with respect to any fraud, willful misconduct, or intentional misrepresentation, (a) in no event shall an Indemnifying Party’s aggregate liability for Losses under Section 8.1(a)(i) or Section 8.1(b)(i) exceed the Purchase Price less the Purchased Interest payments actually received by Buyer, and (b) no Indemnifying Party shall have any liability for Losses under Section 8.1(a)(i), Section 8.1(a)(ii) or Section 8.1(b) unless and until the aggregate amount of all Losses incurred by the Indemnified Party equals or exceeds $[***], in which event such Indemnifying Party shall be liable for all Losses including such amount.
Section 8.4 Third Party Claims. Upon providing notice to an Indemnifying Party by an Indemnified Party pursuant to Section 8.2 of the commencement of any action, suit or proceeding against such Indemnified Party by a third party with respect to which such Indemnified Party intends to claim any Loss under this Article 8, such Indemnifying Party shall have the right to defend such claim, at such Indemnifying Party’s expense and with counsel of its choice reasonably satisfactory to the Indemnified Party. If the Indemnifying Party assumes the defense of such claim, the Indemnified Party shall, at the request of the Indemnifying Party, use commercially reasonable efforts to cooperate in such defense; provided, that the Indemnifying Party shall bear the Indemnified Party’s out-of-pocket costs and expenses reasonably incurred in connection with such cooperation. So long as the Indemnifying Party is conducting the defense of such claim as provided in this Section 8.4, the Indemnified Party may retain separate co-counsel at its expense and may participate in the defense of such claim, and neither the Indemnified Party nor the Indemnifying Party shall consent to the entry of any Judgment or enter into any settlement with respect to such claim without the prior written consent of the other unless such Judgment or settlement (A) provides for the payment by the Indemnifying Party of money as sole relief (if any) for the claimant (other than customary and reasonable confidentiality obligations relating to such claim, Judgment or settlement), (B) results in the full
and general release of the Indemnified Party from all liabilities arising out of, relating to or in connection with such claim and (C) does not involve a finding or admission of any violation of any law, rule, regulation or Judgment, or the rights of any Person. In the event the Indemnifying Party does not or ceases to conduct the defense of such claim as so provided, (i) the Indemnified Party may defend against, and consent to the entry of any reasonable Judgment or enter into any reasonable settlement with respect to, such claim in any manner it may reasonably deem to be appropriate, (ii) the Indemnifying Party shall reimburse the Indemnified Party promptly and periodically for the reasonable out-of-pocket costs of defending against such claim, including reasonable attorneys’ fees and expenses against reasonably detailed invoices, and (iii) the Indemnifying Party shall remain responsible for any Losses the Indemnified Party may suffer as a result of such claim to the full extent provided in this Article 8.
Section 8.5 Exclusive Remedy. Except as set forth in Section 10.9 and Section 11.10, from and after Closing, the rights of the parties hereto pursuant to (and subject to the conditions of) this Article 8 shall be the sole and exclusive remedy of the parties hereto and their respective Affiliates with respect to any claims (whether based in contract, tort or otherwise) resulting from or relating to any breach of the representations, warranties covenants and agreements made under this Agreement or any certificate, document or instrument delivered hereunder, and each party hereto hereby waives, to the fullest extent permitted under Applicable Law, and agrees not to assert after Closing, any other claim or action in respect of any such breach. Notwithstanding the foregoing, claims for fraud shall not be waived or limited in any way by this Article 8.
Article 9TERMINATION
Section 9.1 Grounds for Termination. This Agreement may be terminated at any time prior to the Closing:
Section 9.2 Automatic Termination. Unless earlier terminated as provided in Section 9.1, this Agreement shall continue in full force and effect until the Royalty Termination Date, at which point this Agreement shall automatically terminate, except with respect to any rights that shall have accrued prior to such termination.
Section 9.3 Survival. Notwithstanding anything to the contrary in this Article 9, the following provisions shall survive termination of this Agreement: Section 6.1 (Disclosures), Section 6.2(b) (Payments Received in Error; Interest), Section 6.18(d)(ii) (Confidentiality), Article 8 (Indemnification), Section 9.3 (Survival) and Article 11
(Miscellaneous). Termination of the Agreement shall not relieve any party of liability in respect of breaches under this Agreement by any party on or prior to termination.
Article 10REPURCHASE OPTION
Section 10.1 Grant of Option; No Partial Repurchase Subject to the terms and conditions of this Article 10, Buyer hereby grants to Ultragenyx (for itself and on behalf of Seller) an irrevocable option (the “Repurchase Option”) to repurchase, in whole but not in part, 100% of the Purchased Interest. For the avoidance of doubt, no partial, pro rata, staged or series repurchases shall be permitted under this Article 10.
Section 10.2 Repurchase Period. The Repurchase Option may be exercised at any time and from time to time on or after the Closing and until 5:00 p.m. New York City time on the date that is twenty‑four (24) months following the Closing Date (the “Repurchase Period”). If the Repurchase Option has not been validly exercised prior to the expiration of the Repurchase Period in accordance with this Article 10, it shall automatically and permanently terminate without any further action by any party.
Section 10.3 Exercise; Repurchase Notice. Ultragenyx may exercise the Repurchase Option by delivering to Buyer a written notice (a “Repurchase Notice”) stating its irrevocable election to exercise the Repurchase Option. Each Repurchase Notice shall (a) be executed by Ultragenyx, and (b) specify a proposed closing date for the repurchase that is not less than [***] nor more than [***] Business Days after delivery of such Repurchase Notice. Ultragenyx may designate Seller as the repurchasing entity; provided that Ultragenyx shall remain jointly and severally liable with Seller (or any other designee) for all obligations under this Article 10.
Section 10.4 Repurchase Price. The cash purchase price for the repurchase of the Purchased Interest shall be an amount equal to US$540,000,000 (the “Base Repurchase Price”) less the aggregate amount of all payments on account of the Purchased Interest actually received by Buyer prior to the Repurchase Closing (net of any amounts returned by Buyer in accordance with this Agreement) (the “Repurchase Price”); provided that in no event shall the Repurchase Price be less than zero. For purposes of calculating the Repurchase Price, the Base Repurchase Price shall not be reduced by the following amounts: (a) any amount on account of the Purchased Interest that is attributable to payments of Royalty received by Seller or Ultragenyx, but not yet remitted to Buyer, as of the Repurchase Closing, and (b) any amounts on account of the Purchased Interest that is attributable to payments of Royalty that are due and payable by Licensee but unpaid as of the Repurchase Closing. The Repurchase Price shall be paid in U.S. dollars, in immediately available funds, without set‑off, deduction, counterclaim or withholding on account of Taxes (except to the extent required by Applicable Law and subject to Section 6.17), by wire transfer to the Buyer Bank Account or to such other bank account as Buyer may specify in a written notice to Ultragenyx.
Section 10.5 Repurchase Closing; Deliverables. The closing of the repurchase (the “Repurchase Closing”) shall occur on the Business Day specified in the Repurchase Notice (or such other date as Buyer and Ultragenyx may mutually agree in writing), subject to satisfaction (or waiver by Buyer) of the conditions set forth in Section 10.6. At the Repurchase Closing: (a) Ultragenyx (or Seller, as applicable) shall pay the Repurchase Price to the Buyer Bank Account; and (b) effective automatically upon (and only upon) Buyer’s receipt in full and in cleared funds of the amounts in clause (a), Buyer shall assign, transfer and convey to Ultragenyx (or Seller. as applicable), free and clear of all Liens created by Buyer, all of Buyer’s right, title and interest in and to the Purchased Interest by delivering to Ultragenyx (or Seller, as applicable) a duly executed assignment and bill of sale substantially in the form attached hereto as Exhibit G (the “Repurchase Assignment”). Buyer shall also deliver UCC‑3 termination statements with respect to any financing statements filed by or on behalf of Buyer solely against the Purchased Interest.
Section 10.6 Conditions to Buyer’s Obligations. Buyer’s obligations to consummate the Repurchase Closing are subject to the satisfaction (or waiver by Buyer in its sole discretion) of each of the following conditions:
Section 10.7 Effect of Repurchase; Survival; Termination of Agreement. Upon the Repurchase Closing and receipt by Buyer of the Repurchase Price in full:
Section 10.8 Late Payment; Interest. If any amount payable by Ultragenyx or Seller at the Repurchase Closing is not paid when due, a late fee of [***] over the Prime Rate (calculated on an annualized basis and compounding monthly) shall accrue on such unpaid amount from and including the date due to but excluding the date actually paid in full.
Section 10.9 Specific Performance. If Ultragenyx exercises the Repurchase Option in accordance with this Article 10, Buyer shall thereafter be entitled to seek specific performance to enforce Ultragenyx’s and Seller’s obligations under this Article 10, without the posting of any bond, in addition to any other remedies available at law or in equity.
Section 10.10 Tax Matters. The parties agree that the repurchase contemplated by this Article 10 shall be treated for Tax purposes in a manner consistent with Section 6.17, and the parties shall reasonably cooperate to effect such treatment. Any withholding required by Applicable Law with respect to amounts paid under this Article 10 shall be governed by Section 6.17.
Section 10.11 Exclusivity of Repurchase Right. The Repurchase Option is personal to Ultragenyx and Seller and may not be assigned to any third party (other than to an Affiliate of Ultragenyx that assumes joint and several liability hereunder or in connection with a change of control transaction) without Buyer’s prior written consent.
Section 10.12 No Waiver; Cumulative Rights. The grant of the Repurchase Option and any exercise thereof shall not constitute a waiver of any breach or default by Ultragenyx or Seller of this Agreement occurring prior to the Repurchase Closing, and Buyer’s rights with respect thereto (including indemnification) are expressly preserved.
Article 11MISCELLANEOUS
Section 11.1 Notices. All notices and other communications under this Agreement shall be in writing and shall be by email with PDF attachment, facsimile, courier service or personal delivery to the following addresses, or to such other addresses as shall be designated from time to time by a party hereto in accordance with this Section 11.1:
Section 11.2 Expenses. Except as otherwise provided herein, all fees, costs and expenses (including any legal, accounting and banking fees) incurred in connection with the preparation, negotiation, execution and delivery of this Agreement and to consummate the
transactions contemplated hereby shall be paid by the party hereto incurring such fees, costs and expenses.
Section 11.3 Assignment.
Section 11.4 Amendment and Waiver.
Section 11.5 Entire Agreement. This Agreement, the Exhibits annexed hereto and the Disclosure Schedule constitute the entire understanding between the parties hereto with respect to the subject matter hereof and supersede all other understandings and negotiations with respect thereto.
Section 11.6 No Third Party Beneficiaries. This Agreement is for the sole benefit of Seller, Ultragenyx and Buyer and their permitted successors and assigns and nothing herein expressed or implied shall give or be construed to give to any Person, other than the parties hereto and such successors and assigns, any legal or equitable rights hereunder.
Section 11.7 Governing Law. This Agreement shall be governed by, and construed in accordance with, the laws of the State of New York without giving effect to any choice or conflict of law provision or rule that would cause the application of the laws of any other jurisdiction.
Section 11.8 JURISDICTION; VENUE.
Section 11.9 Severability. If any term or provision of this Agreement shall for any reason be held to be invalid, illegal or unenforceable in any situation in any jurisdiction, then, to the extent that the economic and legal substance of the transactions contemplated hereby is not affected in a manner that is materially adverse to any party hereto, all other terms and provisions of this Agreement shall nevertheless remain in full force and effect and the enforceability and validity of the offending term or provision shall not be affected in any other situation or jurisdiction.
Section 11.10 Specific Performance. Each of the parties acknowledges and agrees that the other parties would be damaged irreparably in the event any of the provisions of this Agreement are not performed in accordance with their specific terms or otherwise are breached or violated. Accordingly, notwithstanding Section 8.5, each of the parties agrees that, without posting bond or other undertaking, the other parties shall be entitled to an injunction or injunctions to prevent breaches or violations of the provisions of this Agreement and to enforce specifically this Agreement and the terms and provisions hereof in any action, suit or other proceeding instituted in any court of the United States or any state thereof having jurisdiction over the parties and the matter in addition to any other remedy to which it may be entitled, at law or in equity. Each party further agrees that, in the event of any action for specific performance in respect of such breach or violation, including pursuant to Section 10.9, it shall not assert that the defense that a remedy at law would be adequate.
Section 11.11 Relationship of the Parties. The relationship between Buyer on the one hand and Seller and Ultragenyx on the other hand is solely that of purchaser and seller, and neither party has any fiduciary or other special relationship with the other party or any of its Affiliates. The Transaction Documents do not constitute a partnership or similar agreement, and nothing contained herein shall be deemed to constitute Ultragenyx, Seller, Buyer and/or any other person as a partnership, an association, a joint venture or any other kind of entity or legal form for any purposes, including any tax purposes. The parties agree that they shall not take any inconsistent position with respect to such treatment in a filing with any Governmental Entity.
Section 11.12 Counterparts. This Agreement may be executed in any number of counterparts and by the parties hereto in separate counterparts, each of which when so executed shall be deemed to be an original and all of which taken together shall constitute one and the same agreement. Copies of executed counterparts transmitted by telecopy, facsimile or other similar means of electronic transmission, including “PDF,” shall be considered original executed counterparts, provided receipt of such counterparts is confirmed.
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