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License And Intellectual Property Acquisition Agreement Dated March 30, 2007

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Exhibit 10.115


LICENSE AND INTELLECTUAL PROPERTY ACQUISITION AGREEMENT


This License and Intellectual Property Acquisition Agreement (as amended from time to time, this "Agreement"), dated this 30th day of March, 2007, but effective as of January 1, 2007 (the " Effective Date"), is made by and between Senetek PLC, an English corporation (" Senetek") and Valeant Pharmaceuticals North America, a Delaware corporation (" Valeant").


W I T N E S S E T H:


WHEREAS, Senetek has developed and holds certain patents and other intellectual property rights relating in and to the use of formulated products containing Kinetin and Zeatin;


WHEREAS, Valeant is a manufacturer and distributor of a broad range of pharmaceutical products worldwide;


WHEREAS, Senetek and Valeant Pharmaceuticals International (" VPI"), an Affiliate of Valeant, have previously entered into that certain License Agreement, dated August 1, 2003, as amended (the " Original License Agreement");


WHEREAS, VPI has assigned all of its rights under the Original License Agreement to Valeant in accordance with Section 10.5 of the Original License Agreement;


WHEREAS, Valeant now desires to acquire from Senetek, and Senetek desires to transfer to Valeant, certain intellectual property rights relating to Kinetin and Zeatin; and


WHEREAS, Valeant and Senetek desire to terminate the Original License Agreement and enter into this Agreement with respect to such intellectual property;


NOW, THEREFORE, in consideration of the promises, representations, warranties, covenants and agreements contained herein and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties hereto, intending to be legally bound hereby, agree as follows:




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ARTICLE 1


DEFINITIONS AND INTERPRETATION


Section 1.1 Definitions. When used in this Agreement, each of the following capitalized terms shall have the respective meanings set forth below:


(a) "Affiliate" means, with respect to a Person, any corporation, partnership, proprietorship or other legal entity directly or indirectly controlled by, controlling, or under common control with another legal entity; "control" meaning, for purposes hereof, the effective power to elect at least a majority of the Board or Directors or other management body of a legal entity or to effectively direct the management of a legal entity, by the ownership of voting securities, by contract, or otherwise.


(b) "Applicable Law" means all applicable provisions of all statutes, laws, rules, regulations, administrative codes, ordinances, decrees, orders, decisions, guidance documents, injunctions, awards, judgments, and permits and licenses of or from Government Entities relating to or governing the use or regulation of the subject item, including, where applicable, tax law.


(c) "Business Day" means a day which is not a Saturday, a Sunday, or a day upon which federally chartered banks in the United States are required to be closed.


(d) "Commercially Reasonable Efforts" means that commercially reasonable degree of effort, expertise, knowledge and resources which one skilled, able, familiar with and experienced in the matters set forth herein would utilize and otherwise apply with respect to fulfilling a like obligation subject to the then existing legal, contractual and other restrictions.


(e) "Confidential Information" means any and all non-public information of a Party or its Affiliates, whether or not related to the subject matter of this Agreement or any of the Existing License Agreements, which (i) is marked as confidential or with words of like effect, or (ii) is disclosed orally, but identified as confidential information by subsequent writing within five (5) days of such disclosure, or (iii) on its face is of such a nature that a reasonable business person would necessarily regard it as confidential, subject to Article 8. Confidential Information may include the non-public information of a Third Party that has disclosed such information to a Party or its Affiliates in the course of its business.


(f) "Effective Date" has the meaning set forth in the Preamble.


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(g) "Encumbrance" means claims, security interests, liens, pledges, charges, escrows, options, proxies, rights of first refusal, preemptive rights, mortgages, hypothecations, assessments, prior assignments, title retention agreements, conditional sales agreements, indentures, deeds of trust, leases, levies or security agreements of any kind whatsoever imposed upon the subject property or item.


(h) "Existing License Agreement" means any agreement, whether written or oral, between Senetek and any Third Party, or by which Senetek is bound, which exists as of the Effective Date and by which Senetek grants or purports to grant any rights in, to or under the Intellectual Property or any portion of the Intellectual Property, including but not limited to those agreements listed on Schedule 4.1(e).


(i) "Final Adjudication" means any decision by a Government Entity of competent jurisdiction if either (a) any and all appeals (including to other Government Entities of competent jurisdiction) in connection with the adjudication are exhausted or (b) the time for any such appeal shall have passed without such appeal having been perfected.


(j) "Government Entity" means any competent governmental agency, board, authority, commission, court or other governmental entity having lawful jurisdiction over the subject matter.


(k) "Intellectual Property" means the Patents, together with any copyrights and any other intellectual and industrial property rights of any sort throughout the world that Senetek owns or has rights to on the Effective Date, and that relate to the making, using, selling, offering to sell, importing or exporting of any products for human use containing any of the Licensed Compounds, but excluding the Know-How.


(l) "Intellectual Property and Know-How Records" means all documentation, including, without limitation, books of account, financial records and other books and records, maintained, owned or controlled by Senetek, whether in electronic or tangible form, relating to the Intellectual Property and Know-How.


(m) "Know-How" means all Trade Secrets and other information, data, documents, materials and knowledge, including Confidential Information, that Senetek owns or has rights to on the Effective Date, to the extent such is useful or necessary for the making, using, selling, offering to sell, importing or exporting of any products for human use containing any of the Licensed Compounds or any component thereof including, but not limited to, (i) information related to any pharmaceutical, chemical, biological and biochemical product covered under the


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Patents, (ii) technical and non-technical data, information relating to the results of tests, assays, methods and/or processes, (iii) drawings, plans, diagrams, specifications and/or other documents containing this information, and further means and includes any and all proprietary special knowledge, expertise, discoveries, formulations, processes and technical, regulatory or other information, and (iv) any of the foregoing as they may relate to the items or matters listed on Schedule 1.1(m).


(n) "Licensed Compounds" means Kinetin and Zeatin.


(o) "Party" or "Parties" means Senetek or Valeant, or Senetek and Valeant, whichever the context requires.


(p) "Patents" means those U.S. and foreign patents and patent applications listed on Schedule 4.1(g)(ii)(A), together with all patents and patent applications owned by and licensed by Senetek that claim priority to or common priority with, divisions, continuations, continuations-in-part, together with any substitutions, replacements, reissues, renewals, re-examinations, extensions or additions thereto, and all worldwide counterparts thereof.


(q) "Patent License Term" has the meaning set forth in Section 2.1.


(r) "Person" means any individual, corporation, limited liability company, partnership, association, trust, unincorporated organization, other legal entity or government or political subdivision thereof.


(s) "Regulatory Approvals" means, as related to the Intellectual Property and/or Senetek92s operation of the business related to the Licensed Compounds in the Territory, all material permits, licenses, certificates, approvals, product registrations, filings and authorizations issued by any Government Authority to Senetek or its representatives.


(t) "Territory" means all the countries and territories of the world.


(u) "Third Party" means any Person other than Senetek or Valeant or their Affiliates.


(v) "Trademarks" means all trademarks, service marks, certification marks, trade names, commercial names or collective marks, registered or at common law, names, symbols, or devices, or any combination thereof, adopted and used by Senetek to identify and distinguish its products, processes, services and/or other uses of the Licensed Compounds from those of any Third Party.


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(w) "Trade Secret" means information possessed by Senetek on the Effective Date, including any formula, pattern, compilation, program, device technique, or process that derives or could reasonably be expected to derive independent economic value, actual or potential, from not being generally known to and not being readily ascertainable by proper means by other persons who can obtain economic value from its disclosure or use.


(x) "Valid Claim" means any claim in an unexpired patent or patent application included within the Patents that has not been disclaimed or held invalid or enforceable by a Government Entity of competent jurisdiction in a Final Adjudication.


Section 1.2 Construction. Unless the context of this Agreement otherwise requires: (a) words of any gender include each other gender; (b) words using the singular or plural number also include the plural or singular number, respectively; (c) the terms "hereof," "herein," "hereby" and derivative or similar words refer to this entire Agreement; (d) the terms "Article," "Section" "Schedule" or "Exhibit" refer to the specified Article, Section, Schedule or Exhibit of this Agreement; (e) the term "or" has, except where the context otherwise dictates, the inclusive meaning represented by the phrase, "and/or" and (f) the term "including" or any variation thereof means "including without limitation" or any variation thereof and shall not be construed to limit any general statement which it follows to the specific or similar items or matters immediately following it, unless otherwise expressly stated.


ARTICLE 2


CONVEYANCE OF INTELLECTUAL PROPERTY RIGHTS AND KNOW-HOW


Section 2.1 Intellectual Property. Senetek hereby grants to Valeant an exclusive (even as to Senetek), assignable, fully paid up, non-royalty bearing license under the Intellectual Property, free and clear of any Encumbrances (except as provided in Section 2.3), with the right to grant sublicenses, to make, use, offer to sell, sell, import, and export any products for human use containing any of the Licensed Compounds throughout the world. The term of such license with respect to the Patents (the " Patent License Term") shall run in each country having issued any of the Patents for the period beginning on the Effective Date and ending upon the expiration of all issued Patents issued by such country containing a Valid Claim. The term of such license with respect to the Intellectual Property, other than the Patents, shall be perpetual.


Section 2.2 Know-How. Senetek hereby sells, assigns, sets over, transfers, and conveys to Valeant an undivided XXXXXXX interest in all of Senetek92s right, title and interest in and to all of the Know-How, free and clear of any Encumbrances (except as provided in


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Section 2.3). Anything in this Agreement to the contrary notwithstanding, during the Patent License Term, Senetek shall not, without Valeant92s prior written consent, in any country having issued any of the Patents until the expiration of all Patents issued by such country containing a Valid Claim, (i) license or disclose the Know-How, or any interest therein, to a Third Party for the making, using, selling, offering to sell, importing or exporting of any products for human use containing any of the Licensed Compounds, or (ii) use the Know-How for the selling, offering to sell, importing or exporting of any products for human use containing any of the Licensed Compounds (it being understood that Senetek may use the Know-How for researching and developing such products or any other products).


Section 2.3 Limitations. The license in Section 2.1 and the conveyance in Section 2.2 are made subject to the terms and provisions of the Existing License Agreements, and Valeant92s rights to use the Know-How pursuant to Section 2.2 shall not include any Confidential Information obtained by Senetek from any licensee, the disclosure of which (i) would violate the terms and provisions of the Existing License Agreements or (ii) would violate applicable antitrust or trade regulation laws or applicable rules of any Government Entity.


Section 2.4 Right of First Offer Following Expiration of Patents. Effective upon the expiration of the first to expire of any or all Patents in any particular country and at all times thereafter , Valeant shall have the right of first offer to obtain the right to sell in such country any skin care product developed, being developed or otherwise acquired by Senetek or its Affiliates which is either (i) a systemic (oral or injectable) product containing as its primary active ingredient either Kinetin or Zeatin, or (ii) a topical product containing as an active ingredient either Kinetin or Zeatin (any such developed or acquired product or product in development being referred to in this Section 2.4 as a "product") provided that such right of first offer shall not apply with regard to products that are both (a) protected through patents or other exclusivity as to, owned by, or vested in a Third Party, and (b) as to which Senetek or its Affiliates have not acquired on or prior to the Effective Date the right to grant marketing rights to others. At such time as Senetek determines, based on preliminary or other studies or other information (clinical or otherwise) (collectively, the " Data"), that such product exhibits action that may make it commercially marketable, Senetek shall give written notice thereof to Valeant, together with all Data in Senetek92s possession or control. Valeant shall have sixty (60) days from the date that it receives such notice to deliver an offer to Senetek setting forth in reasonable detail the principal commercial terms upon which Valeant would purchase, market and resell such product. If Senetek elects not to accept Valeant92s offer (or if no offer is made within such period), Senetek shall be free to (i) grant a license to sell such product in the relevant country to others on terms


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no better to such other party than those offered by Valeant (or, if Senetek has made a counter offer, on terms no better to such other party than those offered by Senetek to Valeant), (ii) exercise the right to sell such product itself, or (iii) any combination thereof, all in Senetek92s sole discretion; provided, however, that in connection with entering into a definitive agreement with such other party, Senetek shall provide to such other party preliminary Data no different than the preliminary Data provided to Valeant. If Senetek develops or acquires Data with respect to such product different than the Data made available to Valeant, Senetek shall give another written notice to Valeant, together with such different Data, and Valeant shall have sixty (60) days from the date that it receives such notice to deliver an offer to Senetek in accordance with the terms specified above regarding the first notice (it being the intention of the Parties that such procedure be repeated until such time as the studies developed by or for Senetek demonstrate "proof of concept" for such product).


ARTICLE 3


CONSIDERATION


Section 3.1 Closing Payments. Concurrently with the execution of this Agreement, Valeant will pay to Senetek, by wire transfer of immediately available funds to an account specified in writing by Senetek, a one-time payment of Twenty-One Million Dollars ($21,000,000 ) (the " Closing Payment").


Section 3.2 Earn Out Payment. In addition, Senetek shall be entitled to earn, and if earned, Valeant shall pay Senetek, an earn out payment (the " Earn Out Payment") as follows:


(a) Senetek shall be entitled to receive the Earn Out Payment, and Valeant shall be obligated to pay Senetek the Earn Out Payment, only if Valeant receives in excess of XXXXXXXXXX in Net Royalties during the Earn Out Period.


(b) If Valeant receives in excess of XXXXXXXXXX in Net Royalties during the Earn Out Period (the amount of any such excess Net Royalties being hereinafter referred to as the " Excess Royalties"), then Valeant shall pay Senetek as the Earn Out Payment:


(i) XXX of the first XXXXXXXXX of Excess Royalties received during the Earn Out Period; and


(ii) XXX of any additional Excess Royalties received during the Earn Out Period.


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(c) The Earn Out Payment, if any, shall be paid in one or more quarterly installments. The timing and amount of each such quarterly installment shall depend on when and in what amounts the Excess Royalties are received. Within thirty (30) days following the last day of any calendar quarter during the Earn Out Period within which any Excess Royalties are received, Valeant shall pay Senetek the accrued portion, if any, of the Earn Out Payment then due.


(d) Either Party may, upon written notice to the other Party, request an independent audit and determination of the Earn Out Payment calculation with respect to any completed calendar quarter during the Earn Out Period (each such calendar quarter being hereinafter referred to as an " Audited Quarter"); provided that the Party requesting the audit provide such written request to the other Party within 12 months following the last day of the Audited Quarter. In the event that an audit is requested in accordance herewith, the Parties shall select an independent public accounting firm (the " Auditor") to perform the audit, and each Party shall cooperate fully in the audit and shall bear one-half of the Auditors fees and expenses. The Auditor92s determination of the Earn Out Payment for the Audited Quarter shall be final and binding on both Parties, and within 10 days following the Parties92 receipt of the Auditor92s determination, each Party agrees that it will make whatever payment to the other Party is required, if any, to cause the Earn Out Payment made with respect to the Audited Quarter, if any, to equal the Earn Out Payment for such Audited Quarter as determined by the Auditor.


(e) For purposes hereof, (i) the term " Earn Out Period" shall mean the five year period commencing on the Effective Date and ending on December 31, 2011, and (ii) the term " Net Royalties" shall mean the total royalties paid to Valeant under the Existing License Agreements with respect to the Earn Out Period (whether received directly from the licensees or from Senetek in accordance with this Agreement), less any credits or refunds required to be given or paid by Valeant with respect thereto.


Section 3.3 Royalty Credit. In addition to the foregoing, Valeant shall and hereby does waive the application of the Unused Prepaid Royalty Credit (as hereinafter defined) in accordance with Section 3.11 of the Original License Agreement, and forgives any refund thereof, and in lieu of such refund, the Parties hereby agree that the Unused Prepaid Royalty Credit shall be credited as (and accounted by both Parties as) an additional cash payment made by Valeant to Senetek hereunder. For purposes hereof, the " Unused Prepaid Royalty Credit" shall mean XXXXXXX, being that portion of the royalty credit due to Valeant pursuant to the Amendment to License Agreement, dated May 4, 2004, to the Original License Agreement as a prepayment of future royalties which has not, as of the Effective Date, been credited to VPI or


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Valeant under Section 3.11 of the Original License Agreement. Senetek shall not be entitled to receive any other royalties or payments hereunder.


ARTICLE 4


REPRESENTATIONS AND WARRANTIES


Section 4.1 Representations and Warranties of Senetek. Senetek hereby represents and warrants to Valeant, as of the Effective Date and as of the Execution Date, as follows:


(a) . Senetek is a corporation duly organized, validly existing and in good standing under the laws of England. Senetek has full corporate power and authority to execute and deliver this Agreement and effect the transactions contemplated hereby and has duly authorized the execution, delivery and performance of this Agreement and the transactions or documents contemplated hereby by all necessary corporate action. Senetek has all corporate power and authority necessary to own its assets and carry on its business as it is now conducted. Senetek is duly licensed or qualified to do business and is in good standing in England and California and each other jurisdiction in which its operations or ownership of assets in connection with this Agreement requires such licensing or qualification. This Agreement is the valid and legally binding obligation of Senetek, enforceable against it in accordance with its terms, subject to applicable bankruptcy, moratorium, reorganization, insolvency and similar laws of general application relating to or affecting the rights and remedies of creditors generally and to general equitable principles (regardless of whether in equity or at law).


(b) . The execution, delivery and performance by Senetek of this Agreement and the consummation by Senetek of the transactions contemplated hereby will not require any notice to, filing with, or the consent, approval or authorization of, any Person or Government Authority. Neither the execution and delivery of this Agreement nor the consummation of the transactions contemplated hereby will (i) violate or result in a breach or result in the acceleration or termination of, or the creation in any Third Party of the right to accelerate, terminate, modify or cancel, any indenture, contract, lease, sublease, loan agreement, note or other obligation or liability to which Senetek is a party or by which it is bound or to which any of the Intellectual Property or Know-How is subject, (ii) conflict with, violate or result in a breach of any provision of the organizational documents of Senetek, or (iii) conflict with or violate any Applicable Law with respect to Senetek or the Intellectual Property or Know-How. Senetek is not a party to or bound by any agreement, written or oral, which encumbers, restricts or otherwise compromises Senetek92s ability to enforce the Existing License Agreements.


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