| 5. |
EFFECTS OF TERMINATION |
| 5.1 |
Evoke’s or its successor’s financial obligations shall be as set forth under the scenarios below
following the expiration or earlier termination of the Agreement. |
| 5.2 |
Scenario 1 – Eversana terminates as a result of an Evoke Change of Control |
Pursuant to Section 14.2(f) of the Agreement (as amended in Amendment No. 1), Eversana has the right to terminate the Agreement upon
thirty (30) days’ written notice to Evoke if Evoke undergoes a Change of Control. If Eversana makes such election to terminate the Agreement (and provided that Evoke is not past due in making any payment obligations owed during the term),
the only payments that Evoke would owe Eversana upon such termination would be the single monthly payment for (a) reimbursable costs incurred in the month prior to the effective date of termination, (b) Eversana’s share of the profit
for such month, if any, and (c) in accordance with Section 5.6 of the Agreement (as amended in Amendment No. 1), paying down the Cumulative Deferred Costs (i.e., reimbursable costs from Sections 5.3 or 5.4 in one or more of the
prior months that has not been previously reimbursed) only to the extent there remains any recognized Net Sales from the final month in excess of the reimbursable amounts for such final month, but capped at 90% of such excess to be used for such
purpose (with the remaining 10% to be split between the Parties per Section 5.5 of the Agreement (as amended in Amendment No. 1)). For clarity, any remaining Cumulative Deferred Costs that are not paid off by such excess, which is capped
by Net Sales in the final month of the Term, would not become payable at or after such termination.
| 5.2 |
Scenario 2 – Evoke or its acquiror terminates as a result of an Evoke Change of Control
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Alternatively, if pursuant to Section 14.2(f) of the Agreement (as amended in Amendment No. 1), any acquiror
of Evoke makes such election to terminate the Agreement as a result of a Change of Control of Evoke, then in such event, Evoke or its acquiror would be required to pay Eversana the following:
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a one-time payment, within sixty (60) days of the effective date of
termination, in an amount equal to the sum of (a) all unreimbursed Commercialization Costs (including unreimbursed Cumulative Deferred Costs and Accrued Pre-Commercialization Costs) actually incurred by
Eversana for such month prior to the effective date of termination and (b) ten percent (10%) of the Commercialization Costs actually incurred by Eversana in the twelve (12) months immediately prior to the effective date of termination; and
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the final monthly payment for Eversana’s share of the profit for the single month prior to termination.
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For clarity, unlike in Scenario 1, the Cumulative Deferred Costs that had accumulated from prior months throughout the
Term would be payable in full at termination irrespective of whether there was an excess in Net Sales in the final month from which such Cumulative Deferred Costs could be deducted in accordance with Section 5.6 (as amended in Amendment
No. 1).
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