1. DEFINITIONS AND INTERPRETATION

EX-10.7 8 exh_107.htm EXHIBIT 10.7 exh_107.htm

Exhibit 10.7

NOVATION AGREEMENT

PARTIES

Albert Einstein College of Medicine of Yeshiva University, a Division of Yeshiva University, of 1300 Morris Park Ave, Bronx, NY 10461,United States of America; BioCryst Pharmaceuticals Inc. of 4505 Emperor Blvd, Suite 200, Durham, NC27703, United States of America (each a Continuing Party and together the Continuing Parties);

and

Callaghan Innovation Research Limited (formerly called Industrial Research Limited) registered in New Zealand under number 545472 (Retiring Party);

and

Victoria Link Limited, a wholly owned subsidiary of Victoria University of Wellington, registered in New Zealand under company number 540316 (Substitute Party);

together referred to as the Parties.

BACKGROUND

A.	Callaghan Innovation Research Limited has transferred its Carbohydrate Chemistry Research Teamand the related intellectual property toVictoria Link Limited and agreements exist between Callaghan Innovation Research Limited and Victoria University of Wellington (the “Transfer Agreements”).

B.	Albert Einstein College of Medicine of Yeshiva University, a Division of Yeshiva University, BioCryst Pharmaceuticals Inc. and Callaghan Innovation Research Limitedare parties to the Novated Contracts (as defined below).

C.	The Parties have agreed to release and discharge:

(i) Callaghan Innovation Research Limited from the obligations and liabilities of Callaghan Innovation Research Limited to the Parties under the Novated Contracts on the condition that the Substitute Party agrees to assume each and every obligation and liability of Callaghan Innovation Research Limited to the Continuing Parties under the Novated Contracts, and

(ii) The Continuing Parties from their obligations and liabilities to the Retiring Party

as of the Effective Date in accordance with the terms and conditions set forth herein.

IT IS AGREED AS FOLLOWS

1.	DEFINITIONS AND INTERPRETATION

In this Agreement:

1.1	Agreement means this Agreement and all its schedules and attachments.

1.2	Continuing Parties means the original party or parties, AECOM and BioCryst, who will continue to be bound under the Novated Contracts.

1.3	Effective Date means 6 January 2014.

1.4

Novated Contracts means the contract or contracts marked and annexed as Schedule 1 to this Agreement, including, but not limited to, the Consent and Waiver dated as of February 1, 2006 (as amended pursuant to the First Amendment to the Consent and Waiver dated October 27, 2011) as well as the AECOM/IRL License Agreement dated June 27, 2000 (as amended pursuant to the First Amendment having an effective date of July 26, 2002; the Second Amendment having an effective date of April 15, 2005; the Third Amendment having an effective date of December 11, 2009; the Fourth Amendment having an effective date of May 5, 2010; the Fifth Amendment having an effective date of November 17, 2011; and the Sixth Amendment having an effective date of 19 June, 2012).

1.5	Retiring Party means Callaghan Innovation Research Limited, who is releasing and discharging its obligations and liabilities under the Novated Contracts, in accordance with the terms and conditions set forth herein.

1.6	Substitute Party means Victoria Link Limited, who is assuming the obligations and liabilities of Retiring Party under the Novated Contracts in accordance with the terms and conditions set forth herein.

1.7	Working Day means any day on which registered banks are open for general banking business in Wellington, other than a Saturday, Sunday, public holiday in Wellington, New Zealand, or a day on which Victoria University of Wellington is closed (as identified in its calendar).

2.	NOVATION

2.1	With effect on or after the Effective Date, and subject to clauses 3.1 and 7.1, the Parties novate the Novated Contracts and the Substitute Party undertakes to the Continuing Parties that it will:

replace the Retiring Party and be bound by the Novated Contracts as set forth in this Agreement; and

discharge all of the obligations of the Retiring Party under the Novated Contracts and observe all the provisions of the Novated Contracts to the extent they ariseon or after the Effective Date; and

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be liable to the Continuing Parties for the performance of any obligations on the part of the Retiring Party under or in connection with the Novated Contractson or afterthe Effective Date.

3.	RELEASE OF RETIRING PARTY’S OBLIGATIONS

3.1

In consideration of the undertaking by the Substitute Party under clause 2.1 above, and subject to clause 7.1, with effect on or afterthe Effective Date, the Continuing Parties release and discharge the Retiring Party from further performance of its obligations under the Novated Contracts and from all liabilities, claims and demands of any kind arising under or in connection with the Novated Contracts on or after the Effective Date but not prior to the Effective Date. The Retiring Party will continue to be liable to the Continuing Parties for all of its acts and omissions which occurred before the Effective Date as if this Agreement of Novation had never been executed.

4.	CONTINUING PARTIES’ OBLIGATIONS

4.1	Each of theContinuing Partiesundertake to the Substitute Party that it will on or after the Effective Date:

discharge all of its respective obligations under the Novated Contracts and observe all the provisions of the Novated Contracts; and

be liable to the Substitute Party for the performance of its respectiveobligations under or in connection with the Novated Contracts arising on or after the Effective Date.

5.	CESSATION OF RETIRING PARTY’S RIGHTS

5.1

Without prejudice to clauses 2.1 and 4.1 above, with effect on or after the Effective Date, the Retiring Party shall cease to have any rights under the Novated Contracts in respect of any acts or omissions of the Continuing Parties on or after the Effective Date arising under or in connection with the Novated Contracts.

Accordingly, the Retiring Party releases and discharges each Continuing Party from further performance of its respective obligations under the Novated Contracts and from all liabilities, claims and demands of any kind arising under or in connection with the Novated Contracts on or after the Effective Date.

6.	WARRANTIES AND ACKNOWLEDGEMENT

6.1	Each of the Continuing Parties and the Retiring Party warrants to the Substituting Party that as at the Effective Date:

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the Novated Contracts constitute the entire agreement between the Continuing Parties and the Retiring Party relating to the subject matter of the Novated Contracts with the understanding that a separate agreement addresses certain additional agreements entered into by the Continuing Parties, Substitute Party, Retiring Party and Mundipharma International Corporation; and

so far as it is aware neither the Retiring Party nor the Continuing Parties is in default under the Novated Contracts which could lead to termination of the Novated Contracts; and

all fees and payments which have become due to the Continuing Parties or the Retiring Party respectively have been duly paid by the Party responsible for payment.

6.2	The Continuing Parties and the Substitute Party acknowledge and agree that the Novated Contracts continue in full force and effect on and afterthe Effective Date in accordance with their terms as novated by this Agreement.

6.3	The Retiring Party and the Substitute Party each warrant to eachContinuing Party that;

they have completed the appropriate documents and transfer so that each Continuing Party is released of obligations from the Retiring Party for obligations going forward on or after the Effective Date of this Agreement;

the Transfer Agreements contain appropriate assignments of all patents and patent applications which relate to the Novated Contracts and that such assignments will be promptly recorded in each country; and

the Novated Contracts as set forth in Schedule I make reference to each and every agreement entered into by the Continuing Parties and the Retiring Party (subject to Section 6.1(a) of this Agreement) such that each of the Continuing Parties will enjoy the same rights and benenfits and assume the same obligations and liabilities as would be the case if the Continuing Parties had not entered into this Agreement.

6.4	The Substitute Party warrants to each Continuing Party that:

it is a viable going concern and has the personnel, expertise and resources to carry out it obligations and responsibilities under the Novated Contracts and has the financial resources to assume any and all liabilities under the Novated Contracts; and

the Substitute Party has the right to grant the rights and licences under the Novated Contracts.

7.	CONFIDENTIALITY

7.1	Notwithstanding the novation effected by this Agreement, the Retiring Party will continue to be bound by any obligations of confidentiality and non-disclosure that the Retiring Party would have been under had the Retiring Party continued to be a Party of the Novated Contracts.

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8.	ASSIGNMENT AND AMENDMENT

8.1

Without the prior written approval of the Continuing Parties and the Substitute Party, which approval shall not be unreasonably withheld, no Continuing Party or Substitute Party will assign this Agreement except to a successor in interest by merger or sale of all or substantially all of the such Party’s business to which this Agreement relates.

8.2	No amendment to this Agreement shall be binding unless in writing and agreed to and signed by the respective Parties.

9.	ENTIRE AGREEMENT

9.1

This Agreement, together with any documents referred to in it, constitutes the whole agreement between the Parties relating to its subject matter and supersedes and extinguishes any prior drafts, agreements, undertakings, representations, warranties and arrangements of any nature, whether in writing or oral, relating to such subject matter.

10.

NOTICES

10.1	Any communication including any notice, consent, information, application or request that must or may be given or made to a Party under this Agreement, can be:

in writing and sent to the physical address of the Party as listed in the Novated Contracts, or, with respect to the Retiring Party and the Substitute Party, as listed at clause 10.3, and marked for the attention of the person or office holder (if any) from time to time designated for that purpose by the relevant Party;

in writing and sent to the email address of the Party as listed at clause 10.3 or of the person or office holder (if any) from time to time designated for that purpose by the relevant Party and followed by a hard copy sent by post in accordance with clause 10.1(a);

in writing and delivered in person to the physical address of the Party as listed at clause 10.3, and marked for the attention of the person or office holder (if any) from time to time designated for that purpose by the relevant Party.

10.2	A communication including any notice, consent, information, application or request will be deemed to be received:

by post, on the third Working Day after posting;

by email,

where it is transmitted on a Working Day, on the Working Day on which it is transmitted and at the time the email enters the recipient’s information system as evidenced by a delivery receipt requested by the sender and it is not returned undelivered as an error; or

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ii.

where it is transmitted on a day other than a Working Day, at 9:00 a.m. on the subsequent Working Day after the date of transmission;

by personal delivery, at the date and time it was delivered.

10.3	The physical address, email address and relevant person or office holder of the Retiring Party and the Substitute Party are set out below:

The University

Name:		Deputy Vice-Chancellor (Research)
Address:		Victoria University of Wellington
		PO Box 600
		Wellington 6140

Email address:		*@*

With a copy to:		In-house Solicitor
		Victoria University of Wellington
		PO Box 600
		Wellington 6140
		*@*

Callaghan Innovation Research Limited

Name:		General Manager Research and Technical Services
Address:		Callaghan Innovation
		PO Box 31310
		Lower Hutt 5040
Email address:		*@*

With a copy to:		Solicitor
		Callaghan Innovation
		PO Box 31310
		Lower Hutt 5040
		*@*

11.

GENERAL

11.1	A failure by a Party to enforce a provision of this Agreement will not constitute a waiver of any right to future enforcement of that or any other provision.

11.2	If any part of this Agreement is unenforceable, invalid or illegal, the other terms will remain in force.

11.3	This Agreement may be signed in counterparts, including by facsimile or email, all of which, when taken together, will constitute one and the same document.

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11.4	This Agreement will be governed and construed under the laws of New York, without regard to its choice of law principles. The Parties hereby irrevocably submit to the jurisdiction of the courts located in the County and State of New York.

Executed as an Agreement:

Signed by Albert Einstein College of Medicine of Yeshiva University, a Division of Yeshiva University:


/s/ John L. Harb
Signature

John L. Harb
Name of authorised signatory

Assistant Dean
Scientific Operations
Position of authorised signatory

Date: 17 June 2015

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Signed by BioCryst Pharmaceuticals Inc:


/s/ Alane Barnes
Signature

Alane Barnes
Name of authorised signatory

VP, General Counsel
Position of authorised signatory

Date: 17 June 2015

Signed by Callaghan Innovation Research Limited:


/s/ Pauline Zumbach			/s/ Richard Templer
Witness Signature			Signature of Attorney

Pauline Zumbach			Name: Richard Templer
Name of Witness			Position: General Manager Research and Technical Services

Wellington, New Zealand
Location of Witness
			Date: 8 June 2015
Chief Legal Advisor
Occupation of Witness

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Signed by Victoria Link Limited:


/s/ Simone Smith			/s/ G.A. Todd
Witness Signature			Signature


Simone Smith			G.A. Todd
Name of Witness			Name of authorised signatory


Wellington, New Zealand
Location of Witness			Managing Director
			Position of authorised signatory

Administration Manager
Occupation of Witness			Date: 24 June 2015

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Schedule 1

License Agreement dated as of June 27, 2000, by and among Albert Einstein College of Medicine, Industrial Research, Ltd. and BioCryst Pharmaceuticals, Inc., as amended by the First Amendment Agreement dated as of July 26, 2002 and the Second Amendment Agreement dated as of April 15, 2005. Filed as Exhibit 10.1 to the Company’s Form 8-K filed November 30, 2005.

Third Amendment Agreement by and among Albert Einstein College of Medicine, Industrial Research, Ltd. and BioCryst Pharmaceuticals, Inc., dated as of December 11, 2009. Filed as Exhibit 10.33 to the Company’s Form 10-K filed March 9, 2010.

Fourth Amendment Agreement by and among Albert Einstein College of Medicine, Industrial Research, Ltd. and BioCryst Pharmaceuticals, Inc., dated as of May 5, 2010. Filed as Exhibit 10.1 to the Company’s Form 10-Q filed August 6, 2010.

Fifth Amendment Agreement by and among Albert Einstein College of Medicine, Industrial Research, Ltd. and BioCryst Pharmaceuticals, Inc., dated as of November 17, 2011. Filed as Exhibit 10.36 to the Company’s Form 10-K filed March 6, 2012.

Sixth Amendment Agreement by and among Albert Einstein College of Medicine, Industrial Research, Ltd. and BioCryst Pharmaceuticals, Inc., dated as of June 19, 2012. Filed as Exhibit 10.1 to the Company’s Form 10-Q filed August 8, 2012.

Consent and Waiver dated February 1, 2006 relating to the License Agreement among Albert Einstein College of Medicine, Industrial Research, LTD and BioCryst Pharmaceuticals, Inc. dated as of June 27, 2000, as amended pursuant to the First Amendment Agreement dated July 26, 2002 and pursuant to the Second Amendment Agreement dated April 15, 2005. [ATTACHED]

First Amendment to Consent and Waiver dated October 27, 2011 by and among Albert Einstein College of Medicine of Yeshiva University, Industrial Research Ltd., and BioCryst Pharmaceuticals, Inc. [ATTACHED]