This excerpt taken from the EVTC 20-F filed Jun 5, 2009.
3. Payments to Roche
a) The following shall be added to Section 6.1 of the Agreement:
If ENS enters into a Co-funding Agreement and/or a Commercialisation Agreement, then Section 6.1 shall be replaced by the following:
ENS shall pay to ROCHE for a Product [***] percent ([***]) % of all future Net Payments that ENS receives from such third party in relation to the use, manufacture, development and commercialization of the Product.
Payment shall mean the gross proceeds or any consideration of any kind whatsoever received by ENS or its Affiliates under or pursuant to any third party agreement, including, without limitation, upfront payments, development milestone payments (whether based on development event payments, regulatory event payments, sales event payments or otherwise), royalties, shares of profits or net sales, damages (both compensatory and punitive) awarded that relate to lost consideration under such agreements, and any equity interests. Payment shall not include any Development Funds received by ENS from a third party that are dedicated to cover research and development expenses by ENS in relation with a Co-funding Agreement. If ENS enters into a Commercialization Agreement with a third party which foresees co-funding of further research and development, then Development Funds dedicated to such co-funding prior to First Commercial Sale of the first Product shall not be considered as Payments. Development Funds shall mean payments directly related to the development activity but excluding development milestone payments.
Net Payments shall mean Payments minus deduction of Compensations, if any.
Compensations shall mean any repayments of principal amounts, interest payments and (partial) pass-through payments of gross proceeds related to any funds received by ENS from a third party that are dedicated to cover research and development expenses by ENS to third-party providers in relation with a Co-funding Agreement.
ENS shall make any payments due under this First Amendment within thirty (30) days after ENS receives any payments under any Co-funding Agreement and/or Commercialisation Agreement.
Together with the payments due under this First Amendment, ENS shall provide Roche with detailed reports on the amount of Payments and Compensations claimed for deduction from Payments necessary for Roche to verify the payments made under this First Amendment.
Co-funding Agreement shall mean an agreement between ENS and a third party that is limited to the co-funding of future research and development costs and in which ENS does not grant any right relating to commercialization of the Product to the third party. ENS shall not structure any Co-funding Agreement with third parties to reduce the amount of Net Payments due to Roche.
Portions of this Exhibit were omitted and have been filed separately with the Secretary of the
Commission pursuant to the Registrants application requesting confidential treatment under Rule 24b-2
of the Securities Exchange Act of 1934.
Commercialisation Agreement shall mean an agreement between ENS and a third party relating to the use, manufacture, development and commercialisation of the Product. ENS shall not structure any Commercialisation Agreement with third parties to reduce the amount of Net Payments due to Roche.
If the Co-funding Agreement and/or the Commercialisation Agreement terminate for whatever reason, then the terms set forth in this Section 3 of this First Amendment above do not apply and Sections 6.1. and 6.2 of the Agreement shall remain unchanged.
b) The following shall be added to Section 6.2 of the Agreement:
If ENS enters into a Commercialisation Agreement, then Section 6.2 shall be deleted completely.
c) If a Change of Control of ENS occurs (i) before ENS enters into a Commercialisation Agreement or (ii) in a way that a third party with which ENS has entered into a Commercialisation Agreement or a Co-Funding Agreement gains control over ENS according to the definition of Change of Control in the subsequent sentence, then the terms set forth in this Section 3 of this First Amendment above do not apply and Sections 6.1 and 6.2 of the Agreement shall remain unchanged. Change of Control shall mean a transaction or series of related transactions (other than an equity financing the principal purpose of which is to raise new capital of ENS or an initial public offering or follow-on public offering), that result directly or indirectly in the change: