Is Brown covered by Section 4.2 o 4.3 of the CommAg? I think not...but lawyers.
posted on
Jul 25, 2013 01:34PM
Per the PDS Operating agreement, MMP License Gross Proceeds will be allocated as indicated below. Note what's call for in 6.1 (a)(i). Then note sections 4.2 and 4.3 under the CommAg that list "other expenses" (4.3) and "other related third-party costs and expenses" (4.2).
From PDS OPERATING AGREEMENT
ARTICLE 6
DISTRIBUTIONS, ALLOCATIONS AND TAX MATTERS
6.1 Application of Gross Cash Proceeds.
(a) Application of Gross Cash Proceeds. Within sixty (60) days
after the close of each of the Company's fiscal quarters, the Company shall
apply and distribute Gross Cash Proceeds in accordance with the following
schedule of priorities:
(i) First, for the payment to TPL (or, in the case of any
payment to satisfy the obligations of the Company under Section 4.2 of the
Commercialization Agreement, directly to the Person identified by TPL) in
satisfaction of the Company's payment obligations under Sections 4.2 and 4.3 of
the Commercialization Agreement;
(ii) Next, to the payment of any Company Expenses;
(iii) Next, for the Working Capital Fund until the Working
Capital Fund equals *** ;
(iv) Next,
(a) for payment to Patriot of an amount equal to 10% of
the Gross Cash Proceeds until Patriot shall have received Twenty Million Dollars
($20,000,000); and
(b) for payment to TPL of an amount equal to 15% of the
Adjusted Gross Cash Proceeds minus any amounts previously advanced to TPL (and
not previously credited against payments to TPL hereunder) pursuant to Section
4.3 of the Commercialization Agreement; and
(v) Finally, the remaining Gross Cash Proceeds (such
remaining amount, the "Net Cash Proceeds") to the Members according to their
respective Percentage Interests.
From CommAg
ARTICLE IV
PAYMENT
4.1 TPL shall cause all Gross Cash Proceeds generated from the
Commercialization efforts to be paid directly to P-Newco.
4.2 Upon the submission of customary and appropriate invoices and
other supporting documentation, P-Newco shall reimburse TPL for the payment of
all legal and third-party expert fees and other related third-party costs and
expenses, including without limitation those incurred in connection with patent
maintenance and prosecution and third party "DeCaps" and third party expert
analysis relating thereto (the "TPL Direct Reimbursable Expenses") incurred by
TPL in connection with the Project and in conformity with the applicable
Business Plan, as well as all TPL Direct Reimbursable Expenses not in conformity
with the applicable Business Plan, to the extent approved by the P-Newco
Management Committee. All such reimbursement shall be made prior to the due date
indicated on the invoice.
4.3 P-Newco shall make payment to TPL of $ *** no later than three
(3) days prior to the start of each fiscal quarter from the Working Capital Fund
to cover indirect and other expenses related to the Project which do not
constitute TPL Direct Reimbursable Expenses ("TPL Other Project Expenses").
Advances to TPL made pursuant to this Section 4.3 shall be nonaccountable and
nonrecoupable, but shall offset the amounts owed TPL pursuant to Section
6.1(a)(iv)(b) of the Operating Agreement in the manner contemplated by such
Section 6.1(a)(iv)(b). At such time as the Working Capital Fund exceeds
$ *** after the first $ *** has been generated pursuant to the
Commercialization, such quarterly payment shall be increased (but not decreased)
to one-eighth of the amount of the Working Capital Fund.
4.4 To the extent that P-Newco does not have sufficient funds from the
Working Capital Fund at the time any payment is due pursuant to this Article IV,
TPL shall refrain from enforcing any collection rights against P-Newco for such
payments until the earlier of (a) such time as funds become available in the
Working Capital Fund, or (b) termination of this Commercialization Agreement.