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 Document Type Form

 

 

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

 

FORM 8-K

 

CURRENT REPORT

Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934

 

Date of Report (Date of earliest event reported): November 18, 2020

 

LIQUIDIA CORPORATION
(Exact name of registrant as specified in its charter)

 

Delaware   001-38601   85-1710962
(State or other jurisdiction
of incorporation)
  (Commission
File Number)
  (IRS Employer
Identification No.)

 

     
419 Davis Drive, Suite 100, Morrisville, North Carolina   27560
(Address of principal executive offices)   (Zip Code)

 

Registrant’s telephone number, including area code: (919) 328-4400

 

N/A
(Former name or former address, if changed since last report.)

 

Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions (see General Instruction A.2. below):

 

¨ Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)

 

¨ Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)

 

¨ Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))

 

¨ Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))

 

Securities registered pursuant to Section 12(b) of the Act:

 

Title of each class Trading Symbol(s) Name of each exchange on which registered
Common stock N/A NONE

 

Indicate by check mark whether the registrant is an emerging growth company as defined in as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter).

 

Emerging growth company x

 

If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. x

 

 

 

 

 

 

 

Introductory Note

 

On November 18, 2020 (the “Closing Date”), Liquidia Corporation, a Delaware corporation (“Liquidia Corporation”), completed the previously announced acquisition contemplated by the Agreement and Plan of Merger, dated as of June 29, 2019, as amended by a Limited Waiver and Modification to the Merger Agreement, dated as of August 3, 2020 (the “Merger Agreement”), by and among Liquidia Corporation, Liquidia Technologies, Inc., a Delaware corporation (“Liquidia Technologies” and, together with Liquidia Corporation, “Liquidia”), RareGen, LLC, a Delaware limited liability company (“RareGen”), Gemini Merger Sub I, Inc., a Delaware corporation (“Liquidia Merger Sub”), Gemini Merger Sub II, LLC, a Delaware limited liability company (“RareGen Merger Sub”), and PBM RG Holdings, LLC, a Delaware limited liability company, as Members’ Representative. Pursuant to the Merger Agreement, Liquidia Merger Sub, a wholly owned subsidiary of Liquidia Corporation, merged with and into Liquidia Technologies (the “Liquidia Technologies Merger”), and RareGen Merger Sub, a wholly owned subsidiary of Liquidia Corporation, merged with and into RareGen (the “RareGen Merger” and, together with the Liquidia Technologies Merger, the “Merger Transaction”). Upon consummation of the Merger Transaction, the separate corporate existences of Liquidia Merger Sub and RareGen Merger Sub ceased and Liquidia Technologies and RareGen continue as wholly owned subsidiaries of Liquidia Corporation.

 

This Current Report on Form 8-K (this “Current Report”) establishes Liquidia Corporation as the successor issuer to Liquidia Technologies pursuant to Rule 12g-3(a) under the Securities Exchange Act of 1934, as amended (the “Exchange Act”). Pursuant to Rule 12g-3(a) under the Exchange Act, shares of Liquidia Corporation common stock, $0.001 par value per share (“Liquidia Corporation Common Stock”), are deemed to be registered under Section 12(b) of the Exchange Act, and Liquidia Corporation is subject to the informational requirements of the Exchange Act, and the rules and regulations promulgated thereunder. Liquidia Corporation hereby reports this succession in accordance with Rule 12g-3(f) under the Exchange Act. The Liquidia Corporation Common Stock is expected be listed on Nasdaq under the symbol “LQDA” on November 19, 2020 following the removal from listing of Liquidia Technologies Common Stock by the Nasdaq Stock Market LLC.

 

Item 1.01. Entry into a Material Definitive Agreement.

 

Litigation Funding and Indemnification Agreement

 

On November 17, 2020, RareGen entered into that certain litigation funding and indemnification agreement (the “Litigation Funding and Indemnification Agreement”) with the Members’ Representative pursuant to which, in the event that certain financing agreement, dated as of June 4, 2020 (the “Financing Agreement”), between RareGen and Henderson SPV (“Henderson”), to cover prospective costs of RareGen’s litigation (the “Litigation”) with United Therapeutics Corporation (“United Therapeutics”) and Smiths Medical ASD, Inc. (“Smiths Medical”), is terminated or otherwise rendered non-operable by failure of either party thereto or by operation of law or in the event Henderson is no longer required to, or fails to timely, make payments to RareGen pursuant to the Financing Agreement, the Members’ Representative will make payments to or on behalf of RareGen to be used by RareGen exclusively for the payment of counsel fees and litigation expenses incurred in connection with the Litigation. In consideration for making such payments to or on behalf of RareGen, the Members’ Representative is entitled to an amount equal to the litigation proceeds actually received by RareGen or any of its affiliates in connection with the Litigation, less any and all amounts payable to Henderson pursuant to the Financing Agreement and all litigation expenses and counsel fees then payable by the Members’ Representative pursuant to the Litigation Funding and Indemnification Agreement and for which RareGen has not been reimbursed for pursuant to the Litigation Funding and Indemnification Agreement. If there are no litigation proceeds (after deducting any amounts payable to Henderson pursuant to the Financing Agreement), then no amount shall be payable to the Members’ Representative, and if there are litigation proceeds but they are less (after deducting any amounts payable to Henderson pursuant to the Financing Agreement) than the amount necessary to pay the Members’ Representative the entirety of its share, RareGen shall not be obligated to pay the difference to the Members’ Representative. In the event that RareGen is required under the Financing Agreement to pay any litigation proceeds into a lockbox account, escrow account or other similar restricted account, then no portion of such litigation proceeds shall become payable to the Members’ Representative pursuant to the litigation funding and indemnification agreement unless and until such funds are released to RareGen from such lockbox account, escrow account or other restricted account.

 

 

 

 

On November 6, 2020, Sandoz Inc. (“Sandoz”), RareGen and Smiths Medical entered into a binding settlement term sheet in order to resolve the Litigation solely with respect to disputes between Smiths Medical, RareGen and Sandoz (the “Term Sheet”). Pursuant to the Term Sheet, Smiths Medical has paid $4.25 million to Sandoz and RareGen and the parties agree to negotiate in good faith to reduce the Term Sheet to a definitive settlement agreement.

 

The Members’ Representative has agreed to indemnify RareGen and its affiliates from any losses and fees incurred in connection with (i) any claim of United Therapeutics or Smiths Medical or any other party against RareGen or its affiliates in connection with or resulting in any way from the Litigation, or (ii) any breach by the Members’ Representative of the terms of the Litigation Funding and Indemnification Agreement. RareGen has agreed to indemnify the Members’ Representative and its affiliates from any losses and fees incurred in connection with any breach by RareGen of the terms of the Litigation Funding and Indemnification Agreement.

 

The foregoing description of the Litigation Funding and Indemnification Agreement does not purport to be complete and is qualified in its entirety by reference to the Litigation Funding and Indemnification Agreement filed as Exhibit 10.1 to this Current Report and incorporated by reference into this Item 1.01.

 

Indemnification Agreements

 

Effective upon the completion of the Merger Transaction, Liquidia Corporation entered into indemnification agreements (the “Indemnification Agreements”) with its directors and executive officers. With specified exceptions, these Indemnification Agreements provide for indemnification against all liability and loss suffered and expenses (including attorneys’ fees), judgments, fines and amounts paid in settlement by any of these individuals in any action, suit or proceeding, to the fullest extent permitted by applicable law. The foregoing description of the Indemnification Agreements does not purport to be complete and is qualified in its entirety by reference to the form of Indemnification Agreement filed as Exhibit 10.2 to this Current Report and incorporated by reference into this Item 1.01.

 

Lock-Up Agreements

 

Effective upon the completion of the Merger Transaction, each RareGen member executed and delivered a lock-up agreement (the “Lock-Up Agreements”), whereby each RareGen member agreed that, without the prior written consent of Liquidia Corporation, it will not, subject to limited exceptions, among other things, offer, sell, contract to sell, pledge, or otherwise dispose of, or to enter into any hedging or swap transaction with respect to, any shares of Liquidia Corporation Common Stock acquired at the closing of the Merger Transaction for a period ending six months after the closing date of the Merger Transaction. The Lock-Up Agreements do not apply to any shares of Liquidia Corporation Common Stock acquired after the Closing Date, such as upon the acquisition of Holdback Shares or Net Sales Earnout Shares (each as defined below). The foregoing obligations of RareGen members will also apply to any permitted post-closing transferees during the lock-up period. The foregoing description of the Lock-Up Agreements does not purport to be complete and is qualified in its entirety by reference to the form of Lock-Up Agreement filed as Exhibit 10.3 to this Current Report and incorporated by reference into this Item 1.01.

 

Item 2.01. Completion of Acquisition or Disposition of Assets.  

 

Liquidia Technologies Merger

 

On the Closing Date, upon completion of the Liquidia Technologies Merger, each outstanding share of common stock, $0.001 par value per share, of Liquidia Technologies (“Liquidia Technologies Common Stock”), whether certificated or held in book-entry form, automatically converted into one share of Liquidia Corporation Common Stock, and such shares of Liquidia Technologies Common Stock converted into Liquidia Corporation Common Stock were cancelled. In addition, (i) each outstanding option and warrant to purchase shares of Liquidia Technologies Common Stock was assumed by Liquidia Corporation and represents the right to purchase a like number of shares of Liquidia Corporation Common Stock on the same terms and conditions, including vesting and exercise price per share, then-applicable to such Liquidia Technologies option or warrant, as applicable, and (ii) each outstanding restricted stock unit to acquire shares of Liquidia Technologies Common Stock was assumed by Liquidia Corporation and represents the right to acquire a like number of shares of Liquidia Corporation Common Stock on the same terms and conditions, including vesting, then-applicable to such Liquidia Technologies restricted stock unit.

 

 

 

 

Consideration to RareGen

 

On the Closing Date, RareGen members received an aggregate of 5,550,000 shares of Liquidia Corporation Common Stock. Additionally, on the Closing Date, an aggregate of 616,666 shares of Liquidia Corporation Common Stock (the “Holdback Shares”) were withheld from RareGen members to secure the indemnification obligations of RareGen members, as further described below. As previously disclosed, RareGen members are also entitled to receive up to an aggregate of 2,708,333 shares of Liquidia Corporation Common Stock (the “Net Sales Earnout Shares”), based on the amount of 2021 net sales of the first-to-file substitutable generic Remodulin treprostinil injection for the treatment of patients with pulmonary arterial hypertension (PAH) in the United States, pursuant to that certain Promotion Agreement, dated as of August 1, 2018, as amended, between RareGen and Sandoz.

 

The Holdback Shares may be reduced by: (i) the portion of the Holdback Shares, if any, used to satisfy the obligations of the RareGen members to the Liquidia indemnitees in accordance with Article 7 of the Merger Agreement; and (ii) the portion of the Holdback Shares, if any, to the extent reasonably necessary to serve as security for any unresolved or unsatisfied claims for losses incurred by an indemnified party (the “Reserve Shares”). The Holdback Shares remaining after giving effect to the reductions set forth in clauses (i) and (ii) in the immediately preceding sentence are referred to in the Merger Agreement as the “Remaining Holdback Shares.” The Remaining Holdback Shares shall be disbursed to Computershare Trust Company, N.A. (the “Exchange Agent”) for the benefit of the RareGen members, on March 31, 2022, and the Reserve Shares shall be disbursed to the Exchange Agent, for the benefit of the RareGen members upon the final resolution of any unresolved claim to which such Reserve Shares were subject.

 

Form S-4 and Merger Agreement

 

The issuance of shares of Liquidia Corporation Common Stock in connection with the Merger Transaction, as described above, was registered under the Securities Act of 1933, as amended (the “Securities Act”), pursuant to a registration statement on Form S-4 (File No. 333-240421), filed by Liquidia Corporation with the Securities and Exchange Commission (the “SEC”) and declared effective on September 16, 2020 (the “Registration Statement”). The proxy statement/prospectus of Liquidia Technologies and Liquidia Corporation (the “Proxy Statement/Prospectus”) included in the Registration Statement, as supplemented on October 8, 2020 and November 5, 2020, contains additional information about the Merger Transaction and the related transactions. The description of Liquidia Corporation Common Stock set forth in the Proxy Statement/Prospectus is incorporated herein by reference. Additional information about the Merger Transaction is also contained in Current Reports on Form 8-K filed by Liquidia Technologies on January 27, 2020, March 20, 2020, March 30, 2020, April 8, 2020, April 13, 2020, April 30, 2020, May 18, 2020, June 5, 2020, June 19, 2020, June 29, 2020, July 2, 2020, July 24, 2020, August 20, 2020, October 14, 2020, October 19, 2020 and November 2, 2020 and incorporated by reference into the Proxy Statement/Prospectus.

 

The description of the Merger Agreement contained herein does not purport to be complete and is qualified in its entirety by reference to the Merger Agreement, a copy of which is filed as Exhibit 2.1 and 2.2 hereto and is incorporated herein by reference. This summary is not intended to modify or supplement any factual disclosures about Liquidia Corporation, Liquidia Technologies or RareGen, and should not be relied upon as disclosure about Liquidia Corporation, Liquidia Technologies or RareGen without consideration of the periodic and current reports and statements that Liquidia Corporation and Liquidia Technologies file with the SEC. The terms of the Merger Agreement govern the contractual rights and relationships, and allocate risks, among the parties in relation to the transactions contemplated by the Merger Agreement. In particular, the representations and warranties made by the parties to each other in the Merger Agreement reflect negotiations between, and are solely for the benefit of, the parties thereto and may be limited or modified by a variety of factors, including: subsequent events, information included in public filings, disclosures made during negotiations, correspondence between the parties and disclosure schedules to the Merger Agreement. Accordingly, the representations and warranties may not describe the actual state of affairs at the date they were made or at any other time and you should not rely on them as statements of fact.

 

 

 

 

The information set forth in the Introductory Note and under Item 1.01 of this Current Report is incorporated by reference into this Item 2.01.

 

Item 3.02 Unregistered Sales of Equity Securities.

 

The information contained in the Introductory Note and Item 2.01 of this Current Report on Form 8-K is incorporated by reference into this Item 3.02. The shares of Liquidia Corporation Common Stock issued to RareGen members on the Closing Date were offered and sold in a transaction exempt from registration under the Securities Act, in reliance on Section 4(a)(2) thereof and Rule 506 of Regulation D thereunder. The shares of Liquidia Corporation Common Stock issued and issuable to RareGen members in the Merger Transaction have not been registered under the Securities Act and such shares may not be offered or sold in the United States absent registration or an exemption from registration under the Securities Act and any applicable state securities laws. Neither this Current Report on Form 8-K nor any of the exhibits attached hereto is an offer to sell or the solicitation of an offer to buy shares of Liquidia Corporation Common Stock or any other securities of the Company.

 

Item 5.01 Changes in Control of the Registrant.

 

Prior to the effective time of the Merger Transaction, Liquidia Corporation was wholly owned and controlled by Liquidia Technologies. As of the effective time of the Merger Transaction, the shares of Liquidia Corporation Common Stock are now held by the former holders of Liquidia Technologies Common Stock and RareGen common units. Pursuant to the Merger Agreement, immediately following the effective time of the Merger Transaction, all shares of Liquidia Corporation Common Stock owned by Liquidia Technologies were surrendered to Liquidia Corporation for no consideration.

 

The information set forth in the Introductory Note and in Item 2.01 of this Current Report is incorporated by reference into this Item 5.01.

 

Item 5.02 Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers.

 

Snyderman Resignation

 

As previously disclosed, pursuant to the Merger Agreement, on the Closing Date, Dr. Ralph Snyderman resigned as a Class I director and as the Chair of the Nominating and Corporate Governance Committee of Liquidia Corporation and Liquidia Technologies. No disagreement with Liquidia caused, in whole or in part, Dr. Snyderman’s resignation.

 

New Director Appointments

 

Effective on the consummation of the Merger Transaction, the Board of Directors of Liquidia Corporation (the “Liquidia Corporation Board”) increased the size of the Liquidia Corporation Board from eight to nine directors and, concurrently with the acceptance of Dr. Snyderman’s resignation, appointed Roger A. Jeffs, Ph.D. and Paul B. Manning, current directors of RareGen, as Class I and Class III directors of Liquidia Corporation for terms expiring at the 2022 and 2021 annual meetings of Liquidia Corporation, respectively. Additionally, effective on the Closing Date, Dr. Jeffs and Mr. Manning were appointed as members of the Compensation Committee and Nominating and Corporate Governance Committee of Liquidia Corporation, respectively. The appointments of Dr. Jeffs and Mr. Manning to the Liquidia Corporation Board were conditions to closing the Merger Transaction pursuant to the Merger Agreement. The appointments of Dr. Jeffs and Mr. Manning as members of the Compensation Committee and Nominating and Corporate Governance Committee of Liquidia Corporation, respectively, were made pursuant to that certain Cooperation Agreement by and among Liquidia Corporation, Liquidia Technologies, Inc. and Serendipity BioPharma LLC, dated as of June 29, 2020, and that certain Cooperation Agreement by and among Liquidia Corporation, Liquidia Technologies, Inc., PBM Capital Finance, LLC and PD Joint Holdings, LLC Series 2016-A, dated as of June 29, 2020, respectively.

 

 

 

 

Mr. Manning is the manager and sole beneficial owner of PBM Capital Finance, LLC (“PBM Capital Finance”), which, collectively with its affiliated entities, currently owns 4,939,541 shares of Liquidia Corporation Common Stock, including 3,921,075 shares acquired in the Merger Transaction on the Closing Date. Dr. Jeffs is the manager of Serendipity BioPharma LLC, which, collectively with Dr. Jeffs and a trust controlled by Dr. Jeffs, currently owns 1,406,095 shares of Liquidia Corporation Common Stock, all of which were acquired in the Merger Transaction on the Closing Date. Additionally, pursuant to that certain Services Agreement with PBM Capital Group, LLC, an affiliate of PBM Capital Finance (“PBM Capital Group”), dated August 7, 2018 and as amended on April 1, 2019 (the “Services Agreement”), PBM Capital Group was retained by RareGen to provide certain services including but limited to: (i) strategy and business development, (ii) operations management, (iii) contract negotiation and review, (iv) processing purchase orders issued by RareGen, (v) establishing, maintaining and administering benefit plans, (vi) maintaining financial books and records of RareGen and (vii) furnishing such other services as are incidental to the foregoing or usually or customarily furnished by a financial manager. RareGen paid a fee of $20,000 per month for the services provided by PBM Capital Group. On the Closing Date, the Services Agreement was amended and restated to allow PBM Capital Group to provide some post-Closing support services to RareGen in exchange for a monthly fee equal to $7,500. Except as set forth above, neither Mr. Manning nor Dr. Jeffs has a direct or indirect material interest in any transaction required to be disclosed pursuant to Item 404(a) of Regulation S-K.

 

In connection with Dr. Jeffs’ and Mr. Manning’s appointments, on the Closing Date, each new director was granted a nonstatutory option to purchase 30,000 shares of Liquidia Corporation Common Stock pursuant to Liquidia Corporation’s non-employee director compensation policy described under the heading “Director Compensation” disclosed in the Proxy Statement/Prospectus. Pursuant to this policy, Dr. Jeffs and Mr. Manning will each receive annual cash compensation equal to $35,000 as a non-employee director, Dr. Jeffs will receive $5,000 annually as a member of the Compensation Committee and Mr. Manning will receive $3,750 annually as a member of the Nominating and Corporate Governance Committee.

 

Dr. Jeffs, age 59, is currently the Co-Founder and Vice Chairman of Kriya Therapeutics, a gene therapy company, where he has served since October 2019. Dr. Jeffs was previously at United Therapeutics, a biotechnology company, where he worked for 18 years until 2016. Dr. Jeffs joined United Therapeutics during its inception phase in 1998 as Director of Research, Development, and Medical and served as its President and Chief Operating Officer from 2001 to 2014, and President and co-CEO from 2015-2016, and was a member of the board of directors from 2001 through 2016. While at United Therapeutics, Dr. Jeffs helped lead the initial public offering, oversaw the clinical development and regulatory approval of six products for rare diseases, and managed the commercial effort that led to a consistent >20% CAGR and $1.5 billion revenue run rate. United Therapeutics was consistently recognized as one of the fastest growing companies and best places to work during his tenure. Dr. Jeffs previously held positions at Amgen, Inc., a biopharmaceutical company, and Burroughs Wellcome Co., a pharmaceutical company, where he held roles in clinical development. Dr. Jeffs currently serves on the board of directors of Axsome Therapeutics, Inc. (Nasdaq: AXSM) and Albireo Pharma, Inc. (Nasdaq: ALBO) and previously served, within the last five years, on the board of directors of Axovant Gene Therapies (Nasdaq: AXGT), Dova Pharmaceuticals, Sangamo Therapeutics (Nasdaq: SGMO) and United Therapeutics (Nasdaq: UTHR). Dr. Jeffs has also served as a director of RareGen since August 2018 and also serves as a director of other private companies. Dr. Jeffs holds an undergraduate degree in chemistry from Duke University and a Ph.D. in pharmacology from the University of North Carolina School of Medicine.

 

Since 2010, Mr. Manning, age 65, has served as the Chairman and Chief Executive Officer of PBM Capital Group, a private equity investment firm in the business of investing in healthcare and life-science related companies, which he founded. Prior to that, Mr. Manning founded PBM Products in 1997, a producer of infant formula and baby food, which was sold to Perrigo Corporation in 2010. Mr. Manning has served as a director of Verrica Pharmaceuticals, Inc. (Nasdaq: VRCA) since December 2015 and as a director of Taysha Gene Therapies, Inc. (Nasdaq: TSHA) since March 2020. Within the past five years, Mr. Manning previously served on the board of directors of Dova Pharmaceuticals, Inc. and AveXis, Inc. Mr. Manning has also served as a director of RareGen since August 2018 and also serves as a director of other private companies. Mr. Manning received a B.S. in microbiology from the University of Massachusetts.

 

 

 

 

Item 8.01 Other Events.

 

On the Closing Date, Liquidia issued a press release in connection with the completion of the Merger Transaction, the appointments of Dr. Jeffs and Mr. Manning and the resignation of Dr. Snyderman. A copy of the press release is attached hereto as Exhibit 99.1 and is incorporated by reference into this Item 8.01.

 

Item 9.01 Financial Statements and Exhibits.

 

(a)  Financial Statements of Business Acquired.
   
  The audited and unaudited financial statements required by this item will be filed by amendment to this Current Report on Form 8-K no later than 71 days after the date on which this Current Report on Form 8-K is required to be filed.
   
(b) Pro Forma Financial Information.
   
  The unaudited pro forma financial information required by this item will be filed by amendment to this Current Report on Form 8-K no later than 71 days after the date on which this Current Report on Form 8-K is required to be filed.
   
(d) Exhibits.

 

Exhibit
No.
  Exhibit
     
2.1   Agreement and Plan of Merger, dated as of June 29, 2020, by and among Liquidia Technologies, Inc., RareGen, LLC, Liquidia Corporation, Gemini Merger Sub I, Inc., Gemini Merger Sub II, LLC and PBM RG Holdings, LLC (incorporated herein by reference to Exhibit 2.1 to Liquidia Corporation’s Registration Statement on Form S-4, filed with the SEC on August 5, 2020).
     
2.2   Limited Waiver and Modification to Agreement and Plan of Merger, dated as of August 3, 2020, by and among Liquidia Technologies, Inc., RareGen, LLC, Liquidia Corporation, Gemini Merger Sub I, Inc., Gemini Merger Sub II, LLC and PBM RG Holdings, LLC (incorporated herein by reference to Exhibit 2.2 to Liquidia Corporation’s Registration Statement on Form S-4, filed with the SEC on August 5, 2020).  
     
10.1   Litigation Funding and Indemnification Agreement, dated as of November 17, 2020, by and between RareGen, LLC and PBM RG Holdings, LLC.  
     
10.2   Form of Indemnification Agreement with Liquidia Corporation’s executive officers and directors.  
     
10.3   Form of Lock-Up Agreement by and among Liquidia Corporation, Liquidia Technologies, Inc. and each of the RareGen members party thereto (incorporated herein by reference to Exhibit 10.7 to Liquidia Corporation’s Registration Statement on Form S-4, filed with the SEC on August 5, 2020).  
     
99.1   Press Release of Liquidia Technologies, Inc.  
     
104   Cover Page Interactive Data File (the cover page tags are embedded within the Inline XBRL document).

 

 

 

 

Cautionary Statements Regarding Forward-Looking Statements

 

This Current Report on Form 8-K contains “forward-looking statements” within the meaning of the federal securities laws, including Section 27A of the Securities Act and Section 21E of the Securities Exchange Act of 1934, as amended. In this context, forward-looking statements often address expected future business and financial performance and financial condition, and often contain words such as “expect,” “anticipate,” “intend,” “plan,” “believe,” “seek,” “see,” “will,” “would,” “target,” similar expressions, and variations or negatives of these words. Forward-looking statements by their nature address matters that are, to different degrees, uncertain, such as statements related to the Merger Transaction or the anticipated benefits thereof, including, without limitation, future financial and operating results. The Company cautions readers that these and other forward-looking statements are not guarantees of future results and are subject to risks, uncertainties and assumptions that could cause actual results to differ materially from those expressed in any forward-looking statements. Important risk factors that may cause such a difference include, but are not limited to risks and uncertainties related to (i) the ability of Liquidia and RareGen to integrate their businesses successfully and to achieve anticipated cost savings and other synergies, (ii) the possibility that other anticipated benefits of the completed Merger Transaction will not be realized, including without limitation, anticipated revenues, expenses, earnings and other financial results, and growth and expansion of the new combined company’s operations, and the anticipated tax treatment, (iii) potential litigation relating to the completed Merger Transaction that has and could be instituted against Liquidia, RareGen or their respective officers or directors, (iv) possible disruptions from the completed Merger Transaction that could harm Liquidia’s or RareGen’s business, including current plans and operations, (v) the ability of Liquidia or RareGen to retain, attract and hire key personnel, (vi) potential adverse reactions or changes to relationships with employees, customers, suppliers, licensees, collaborators, business partners or other parties resulting from the completion of the Merger Transaction, (vii) continued availability of capital and financing and rating agency actions, (viii) legislative, regulatory and economic developments and (ix) unpredictability and severity of catastrophic events, including, but not limited to, global pandemics such as coronavirus, acts of terrorism or outbreak of war or hostilities, as well as management’s response to any of the aforementioned factors. These risks, as well as other risks associated with the completed Merger Transaction, are more fully discussed in the proxy statement/prospectus in connection with the completed Merger Transaction, which was declared effective on September 16, 2020, as subsequently supplemented. While the list of factors presented here is, and the list of factors to be presented in the registration statement on Form S-4 are, considered representative, no such list should be considered to be a complete statement of all potential risks and uncertainties. Unlisted factors may present significant additional obstacles to the realization of forward-looking statements. Consequences of material differences in results as compared with those anticipated in the forward-looking statements could include, among other things, business disruption, operational problems, financial loss, legal liability to third parties and similar risks, any of which could have a material adverse effect on Liquidia’s or RareGen’s consolidated financial condition, results of operations, credit rating or liquidity. Neither Liquidia nor RareGen assumes any obligation to provide revisions or updates to any forward-looking statements, whether as a result of new information, future developments or otherwise, should circumstances change, except as otherwise required by securities and other applicable laws.

 

 

 

 

SIGNATURES

 

Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.

 

November 18, 2020 Liquidia Corporation
   
   
  By: /s/ Steven Bariahtaris
    Name: Steven Bariahtaris
    Title: Interim Chief Financial Officer

 

 

Exhibit 10.1

 

LITIGATION FUNDING AND INDEMNIFICATION agreement

 

This Litigation Funding and Indemnification Agreement, dated as of November 17, 2020, is by and between PBM RG Holdings, LLC, a Delaware limited liability company (“Holdings”), and RareGen, LLC, a Delaware limited liability company (“RareGen,” and together with Holdings, the “Parties”).

 

ARTICLE I
DEFINITIONS

 

1.1           Definitions. The following capitalized terms shall have the meanings specified in this Section 1.1. Other terms are defined in the text of this Agreement and those terms shall have the meanings respectively assigned to them.

 

Affiliate” means, with respect to any Person, any other Person that directly or indirectly Controls, is Controlled by, or is under common Control with such Person.

 

Agreement” means this Litigation Funding and Indemnification Agreement, as amended from time to time in accordance with Section 12.7.

 

Business Day” means any day other than a day on which the Securities and Exchange Commission shall be closed.

 

Business Deal” means any transaction or arrangement relating to the Litigation or the Claims entered into by RareGen and any Person, whereby such Person provides a benefit to RareGen or any of RareGen’s Affiliates, including any transaction or arrangement with any Defendant.

 

Claims” means the claims that RareGen and Sandoz have against each Defendant in the Litigation and any related claims, including any claims brought against or between RareGen and/or Sandoz in the Litigation.

 

Collateral” shall have the meaning assigned to such term in Section 10.1.

 

Confidential Information” means any information relating to: (a) the Transaction Documents, including any discussions and negotiations related thereto, the existence of them, or the identity of the Parties or their respective Affiliates and owners; the Litigation or the Claims, including the names of the parties and potential other parties to the Claims; the factual, legal, technical, economic and financial background of the Claims; the procedural status of the Claims; the planned legal and procedural strategies and tactics for the pursuing of the Claims or Settlement, or a Business Deal, or collection of the Litigation Proceeds; and the expected recoveries from the Claims; (b) factual information, evidentiary information, legal theories, procedures, decision trees, experts’ or other consultants’ reports, attorney or other professional work product; (c) billing arrangements, billing rates, financial arrangements, contingent fee agreements, contingent fee percentages, costs, finances, investments, investors, price lists, pricing, profit margins, profitability and quotations; (d) any financial statements and information, data, documents, reports and materials relating to the Litigation or the Claims; (e) information concerning accountants, agents, law firms, lawyers and advisors; and (f) other proprietary or nonpublic information, data or material, in all cases regardless of whether such information is (i) written or oral, irrespective of the form or storage medium, and (ii) specifically identified as “confidential” or which, by virtue of its nature, would be understood to be confidential by a reasonable Recipient. “Confidential Information” includes analytics derived from other Confidential Information. “Confidential Information” does not include information that (x) was or becomes generally available to the public other than as a result of a disclosure by the Recipient in violation of this Agreement; (y) was actually known to the Recipient on a non-confidential basis prior to its disclosure; or (z) was developed independently of, and without use of or reference to, the Confidential Information or information derived from the Confidential Information.

 

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Control” (including the terms “Controlled by” and “under common Control with”) means the possession, directly or indirectly, of the power to direct or cause the direction of the management policies or affairs of a Person, whether through ownership of voting securities of a Person, by contract or otherwise.

 

Counsel” means Current Counsel and/or any New Counsel.

 

Counsel Fees” means any and all fees payable by RareGen to Counsel for legal services related to the Litigation.

 

Court” means the courts or other tribunals in which the Litigation is conducted.

 

Current Counsel” means Quinn Emanuel Urquhart & Sullivan, LLP.

 

Default Rate” means a rate per annum equal to the lesser of (a) 9% per annum compounded monthly and (b) the highest applicable rate permitted by law.

 

Defendant” means United Therapeutics, Smiths, any of their respective Affiliates, and any other defendant to the Litigation, and each of the successors and assigns of the foregoing.

 

Deployment” shall have the meaning assigned to such term in Section 2.1.

 

Deployment Request” shall have the meaning assigned to such term in Section 2.3.

 

Disclosing Party” means the Party to this Agreement who provides Confidential Information to the Recipient.

 

Encumbrance” means any mortgage, pledge, lien, security or ownership interest, charge, hypothecation, or other encumbrance, option agreement, transfer, set-off right, security or subordination arrangement, or other similar interest or arrangement of any kind.

 

Engagement Agreements” means all engagement and any other agreements with Counsel entered into by RareGen (and, if applicable, Holdings) in connection with the Claims and the Litigation, including any amendments or modifications thereto.

 

Final Resolution” means the resolution of the Litigation that substantially concludes the Litigation with respect to RareGen pursuant to (a) a final, non-appealable, legal and valid judgment of the Court binding all Defendants, or (b) a Settlement agreement or agreements between RareGen and all Defendants.

 

Governmental Authority” means any court, tribunal, arbitrator, authority, agency, commission, official, body or other instrumentality of the United States, any foreign country, or any domestic or foreign state, province, county, city, other political subdivision or any other similar body or organization exercising governmental or quasi-governmental power or authority.

 

Holdings” shall have the meaning assigned to such term in the introduction to this Agreement.

 

Holdings’ Share” means an amount equal to the Litigation Proceeds, less (i) any and all amounts payable to Senior Funder pursuant to the terms of the Senior Funder Agreement, and (ii) any and all Litigation Expenses and Counsel Fees that are then payable by Holdings pursuant to Article II of this Agreement and for which RareGen has not been reimbursed for pursuant to this Agreement.

 

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Litigation” means the case captioned Sandoz Inc. and RareGen, LLC v. United Therapeutics Corporation and Smiths Medical ASD, Inc., No. 3:19-cv-10170, filed in April 2019 in the District Court of New Jersey, including the same if transferred to any other jurisdictions or forums (arbitral, judicial or otherwise), together with (a) any and all claims, suits, causes of action, proceedings, and other rights relating to, or arising therefrom, (b) any and all appellate proceedings, proceedings on remand, and enforcement, ancillary, parallel or alternate dispute resolution proceedings and processes arising out of or related thereto, and (c) any additional cases, lawsuits, arbitration matters or other proceedings filed or initiated by or on behalf of RareGen or any of RareGen’s Affiliates against Defendants based upon the same or substantially similar facts.

 

Litigation Expenses” means reasonable out-of-pocket costs incurred by or on behalf of RareGen related to the Litigation, including expert witness fees and costs, and any costs, fees, penalties or financial sanctions that become due and payable as a result of the Litigation. Litigation Expenses shall not include Counsel Fees.

 

Litigation Proceeds” means any and all proceeds, receivables, property, cash, concessions and other consideration actually paid or transferred directly or indirectly to or for the benefit of RareGen or any of RareGen’s Affiliates in connection with the Litigation, the Promotion Agreement (solely to the extent related to the Litigation) or any Claims (whether by judgment, Settlement, Business Deal, any payment under the Promotion Agreement (solely to the extent related to the Litigation) or otherwise), including, to the extent consistent with the foregoing, any damages (punitive or otherwise), penalties, interest, award of attorneys’ fees and the reimbursement for costs and expenses, and other amounts paid or property transferred or concessions made to or for the benefit of RareGen or any of RareGen’s Affiliates in respect of the Litigation, the Promotion Agreement (solely to the extent related to the Litigation) or any Claims; provided, however, that any such proceeds, receivables, property, cash, concessions and other consideration that is payable by RareGen to Sandoz under the terms of the Promotion Agreement shall be deemed not to be Litigation Proceeds. The Litigation Proceeds will be calculated and determined without taking into consideration and prior to deduction of (a) any Taxes payable by RareGen or any of RareGen’s Affiliates in connection with the Litigation Proceeds, (b) setoffs of any kind, including setoffs in respect of any claim or counterclaim asserted against RareGen or any of RareGen’s Affiliates by any Person, and (c) fees and/or expenses incurred in connection with the Litigation or the collection of any Litigation Proceeds. Notwithstanding anything to the contrary in this Agreement, any of the following items received from Smiths or its Affiliates shall be deemed not to be “Litigation Proceeds”, shall be expressly excluded from this definition and shall be disregarded for purposes of calculating Holdings’ Share: (i) any and all cartridges, (ii) the specifications for Smiths’ cartridges, (iii) copies of release test methods and release specifications used by Smiths for its cartridges, (iv) copies of the standard operating procedures and manufacturing methods used by Smiths in the manufacture of Smiths’ cartridges, (v) a copy of Smiths’ full, unredacted 510(k) for its cartridges and/or pump, (vi) a license to copy Smiths’ 510(k) or any portions thereof, as applicable, for purposes of including it in a 510(k) submission for a cartridge developed by or for RareGen, (vii) a license to any relevant intellectual property associated with Smiths’ cartridge, (viii) a letter of support for a cartridge developed by or for RareGen that could be sent to a regulatory authority (including the FDA), (ix) an agreement that Smiths will not disparage any cartridge developed by or for RareGen, (x) a commitment that, assuming a cartridge developed by or for RareGen meets Smiths’ specifications, Smiths will communicate to customers and the market that the cartridge developed by or for RareGen is compatible with Smiths’ pumps and appropriate for use for the treatment of pulmonary arterial hypertension, (xi) a commitment from Smiths that Smiths will support the refurbishment and maintenance of pumps that are available for use with Sandoz’s treprostinil product, and (xii) a commitment that Smiths will continue to supply all other disposables and consumables necessary for use with pumps that are available for use with Sandoz’s treprostinil product.

 

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New Counsel” means any substitute or additional legal counsel engaged by RareGen (and, if applicable, Holdings) with respect to the Claims or the Litigation.

 

Order” means any order, judgment, ruling, injunction, award, decree or writ of any Governmental Authority.

 

Parties” shall have the meaning assigned to such term in the introduction to this Agreement.

 

Person” means any natural person, corporation, partnership, limited liability company, joint stock company, joint venture, association, company, estate, trust or other organization, whether or not a legal entity, custodian, trustee, executor, administrator, nominee or entity in a representative capacity and any Governmental Authority.

 

Proceeds” shall have the meaning assigned to such term in the UCC.

 

Promotion Agreement” means that certain Promotion Agreement, dated as of August 1, 2018, by and between Counterparty and Sandoz, the First Amendment thereto dated May 8, 2020, and any amendments or modifications to the foregoing.

 

Protective Order” means a stipulated order to protect confidential information prepared by the parties to the Litigation and ordered by the Court.

 

RareGen” shall have the meaning assigned to such term in the introduction to this Agreement.

 

Recipient” means the Party to this Agreement receiving Confidential Information from the Disclosing Party.

 

Records” shall have the meaning assigned to such term in the UCC.

 

Sandoz” means Sandoz Inc.

 

Secured Obligations” means, collectively: (a) the prompt payment by RareGen, as and when due, of the Holdings’ Share to Holdings and the due performance by RareGen of all of its obligations in respect of the Transaction Documents, (b) all other debts, liabilities, obligations, covenants and duties of RareGen owing to Holdings now or hereafter existing, whether direct or indirect, absolute or contingent or due or to become due, arising under or in connection with the Transaction Documents or any of the transactions contemplated thereby and including any interest due thereon and all fees, costs and expenses incurred by Holdings in connection therewith; (c) all debts, liabilities, obligations, covenants and duties of RareGen to pay or reimburse Holdings for all expenses, including attorneys’ fees, incurred by Holdings in connection with the enforcement, attempted enforcement or preservation of any rights or remedies under the Transaction Documents, including all such costs and expenses incurred during any legal proceeding, including any proceeding under any applicable bankruptcy, insolvency or other similar debtor relief laws; and (d) all interest and fees on any of the foregoing, whether accruing prior to or after the commencement by or against RareGen of any proceeding under any applicable bankruptcy, insolvency or other similar debtor relief laws naming RareGen as the debtor in such proceeding, regardless of whether such interest and fees are allowed claims in such proceeding.

 

Senior Funder” means Henderson SPV, LLC, a Delaware limited liability company.

 

Senior Funder Agreement” means that certain Financing Agreement, dated June 4, 2020, by and between RareGen and Senior Funder.

 

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Settlement” means any compromise, discontinuance, waiver, payment, release or other form of settlement whatsoever where value passes from or on behalf of one or more Defendants to or for the benefit of RareGen or any of RareGen’s Affiliates in circumstances in which any of the Litigation does not commence or continue as a result of or in connection with the passing of that value; and “Settle”, “Settles” and “Settled” have corresponding meanings.

 

Smiths” means Smiths Medical ASD, Inc.

 

Taxes” means any and all applicable taxes, duties, charges or levies of any nature imposed by any taxing or other Governmental Authority, including income, gains, capital gains, surtax, capital, franchise, capital stock, value-added taxes, taxes required to be deducted from payments made by the payor and accounted for to any tax authority, employees’ income withholding, back-up withholding, withholding on payments to foreign Persons, social security, national insurance, unemployment, worker’s compensation, payroll, disability, real property, personal property, sales, use, goods and services or other commodity taxes, business, occupancy, excise, customs and import duties, transfer, stamp and other taxes (including interest, penalties or additions to tax in respect of the foregoing), and includes all taxes payable pursuant to any provision of state, local or foreign law.

 

Total Deployments” shall have the meaning assigned to such term in Section 2.1.

 

Transaction Documents” means, collectively, this Agreement and any other agreement, document or instrument contemplated hereby or delivered in connection herewith or therewith, including any instruction letter with Counsel, but for purposes of clarity, excluding the Agreement and Plan of Merger, by and among the Liquidia Corporation, a Delaware corporation, Liquidia Technologies, Inc., a Delaware corporation, RareGen, Gemini Merger Sub I, Inc., a Delaware corporation, Gemini Merger Sub II, LLC, a Delaware limited liability company, and Holdings (the “Merger Agreement”), and any other agreement, document or instrument (other than this Agreement) delivered in connection with the Merger Agreement.

 

UCC” means the Uniform Commercial Code as in effect on the date hereof in the State of Delaware or, in relation to the perfection or priority of a security interest, the Uniform Commercial Code that then governs under the choice of law rules applicable to questions of perfection or priority.

 

United Therapeutics” means United Therapeutics Corporation.

 

ARTICLE II
TERMS OF FINANCING

 

2.1           Deployments. Subject to the terms and conditions of this Agreement (including Section 2.2), Holdings commits to make payments to RareGen or on RareGen’s behalf (each payment, a “Deployment”, and the total of such payments, the “Total Deployments”), at any time and from time to time from the date of this Agreement, to be used by RareGen exclusively for the payment of Counsel Fees and Litigation Expenses. In consideration of the foregoing, the Parties hereby agree that Holdings is entitled to Holdings’ Share, free and clear of any Encumbrance.

 

2.2           Funding by Senior Funder. The Parties acknowledge and agree that RareGen shall first seek to have its Counsel Fees and Litigation Expenses funded by Senior Funder pursuant to the Senior Funder Agreement. Holdings’ obligation to pay Counsel Fees and Litigation Expenses pursuant to Section 2.1 shall be applicable only if (i) Senior Funder has no obligation to fund such Counsel Fees or Litigation Expenses pursuant to the Senior Funder Agreement, (ii) Senior Funder otherwise fails to fund such amounts within thirty (30) days of the date on which Senior Funder is required to fund such amounts in accordance with the Senior Funder Agreement, (iii) the Senior Funder Agreement is terminated or otherwise rendered non-operable by failure of either party thereto or by operation of law, or (iv) the Senior Funder’s obligations under the Senior Funding Agreement are exhausted or otherwise extinguished.

 

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2.3           Deployment Procedure. No more than once per calendar month, RareGen may submit a written request (a “Deployment Request”) to Holdings for each desired Deployment. Holdings shall disburse such Deployment to RareGen or the ultimate payee on RareGen’s behalf; provided that:

 

(a)                RareGen provides documentation evidencing either (i) that Senior Funder is not obligated to fund such amounts pursuant to the Senior Funder Agreement or (ii) RareGen’s commercially reasonable attempt to have such amounts funded by Senior Funder in accordance with the terms of the Senior Funder Agreement and Senior Funder’s failure or refusal to do so.

 

(b)                RareGen provides an invoice detailing the out-of-pocket costs and fees incurred by RareGen and not funded by Senior Funder pursuant to the Senior Funder Agreement in accordance with the uses permitted under Section 2.1, which invoice will be in form and substance reasonably acceptable to Holdings and which costs and fees were not paid by a previous Deployment, along with invoices or other documentation reasonably acceptable to Holdings to substantiate said costs and fees; and

 

(c)                No breach or default by RareGen exists, and remains uncured, under any of the Transaction Documents as of the date of such request or the funding of the related Deployment (it being understood that if a request is made at the time that a breach or default by RareGen exists, RareGen may re-make the request at such time as such breach or default has been cured).

 

Subject to the terms of this Agreement, within fifteen (15) Business Days of Holdings’ receipt of the Deployment Request, Holdings shall disburse the Deployment in immediately available funds to or on behalf of RareGen as directed by RareGen in the Deployment Request.

 

ARTICLE III
DISTRIBUTION OF LITIGATION PROCEEDS

 

3.1           Priority of Payment. RareGen will immediately notify Holdings of its receipt of any Litigation Proceeds (whether by Counsel or Sandoz for RareGen’s account or otherwise). Within fifteen (15) days of RareGen (or Counsel) receiving any Litigation Proceeds, RareGen will (i) pay (or cause to be paid) to Senior Funder that portion of the Litigation Proceeds to which Senior Funder is entitled pursuant to the Senior Funder Agreement, and (ii) pay (or cause to be paid) any remaining Litigation Proceeds to Holdings as the Holdings’ Share (or a portion thereof) in immediately available funds in accordance with wire instructions to be provided to RareGen by Holdings. All Litigation Proceeds payable to Holdings will first be applied to the repayment of the Total Deployments, and thereafter to the remainder of the Holdings’ Share.

 

3.2           Lockbox Account. In the event that RareGen is required under the Senior Funder Agreement to pay any Litigation Proceeds into a lockbox account, escrow account or other similar restricted account, then Holdings agrees that no portion of such Litigation Proceeds shall become payable to Holdings pursuant to this Agreement unless and until such funds are released to RareGen from such lockbox account, escrow account or other restricted account pursuant to the Senior Funder Agreement.

 

3.3           Maturity Date. Subject to Section 3.4, Holdings’ Share, to the extent not previously paid in accordance with Section 3.1 or Section 3.2, shall become due and payable, and RareGen shall pay Holdings’ Share in cash to Holdings, on December 31, 2023 (the “Maturity Date”); provided that if, as of such date, any of the requirements set forth in (a) through (c) below have not been satisfied, then the Maturity Date shall be extended automatically for consecutive one (1) calendar year periods thereafter until the first such date to occur following the satisfaction of all requirements set forth in (a) through (c) below.

 

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(a)                Final Resolution has occurred.

 

(b)                Each of RareGen and Holdings has complied with all of its obligations pursuant to this Agreement.

 

(c)                All Litigation Proceeds (if any) have been disbursed in accordance with this Agreement.

 

3.4            Non-Recourse. If there are no Litigation Proceeds (after deducting any amounts payable to the Senior Funder pursuant to the Senior Funder Agreement), then no amount shall be payable to Holdings under Section 3.1, Section 3.2 or Section 3.3, and if there are Litigation Proceeds but they are less (after deducting any amounts payable to the Senior Funder pursuant to the Senior Funder Agreement) than the amount necessary to pay Holdings the entirety of Holdings’ Share, RareGen shall not be obligated to pay the difference to Holdings.

 

3.5           Tax Matters.

 

(a)                RareGen and its successors are liable for and shall pay any and all Taxes (other than Taxes imposed upon Holdings as a consequence of Holdings’ income) imposed in connection with, or as a result of, the Litigation Proceeds or as a consequence of any Settlement or Business Deal. If, however, (i) the aggregate taxable income of or on account of RareGen or its successors from the receipt of, or entitlement to, the Litigation Proceeds, exceeds (ii) the aggregate income tax deductions available to or on account of RareGen or its successors, whether in the same tax year in which any such Litigation Proceeds are accrued or received or in any other tax year, in connection with its payment of expenses associated with the conduct of the Litigation and for the requirement to pay, or payment of, the Litigation Proceeds to Senior Funder and Holdings (such excess being referred to herein as the “Mismatch Amount”), then any Litigation Proceeds otherwise payable to Holdings hereunder shall be reduced by an amount sufficient for the payment or offset of any income taxes payable or the reduction of any deferred tax asset resulting from such Mismatch Amount. For purposes of the preceding sentence, the amount of the reduction of any deferred tax asset shall be measured in accordance with generally accepted accounting principles.

 

(b)                Other than as provided for in Section 3.5(a), no Tax payment, liability or obligation of RareGen shall operate to reduce any amount payable to Holdings under this Agreement. If any such reduction or withholding is required by law, RareGen shall (i) promptly notify Holdings upon becoming aware of the required deduction or withholding; (ii) pay to the relevant authorities (within the time allowed) the full amount required to be deducted or withheld (including the full amount required to be deducted or withheld from any additional amount paid by RareGen to Holdings under this clause); (iii) promptly provide Holdings an official receipt (or a certified copy or such other evidence reasonably acceptable to Holdings) evidencing the relevant withholding and payment to such authorities; and (iv) pay to Holdings such amounts remaining after making any such withholdings or deductions.

 

(c)                This Agreement shall not, in whole or in part, be deemed to create or imply a partnership for federal or state or local income tax purposes, and neither Holdings nor RareGen will take any action or make any election to treat their relationship as a partnership for income tax purposes.

 

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3.6           Interest On Overdue Amounts. If RareGen fails to pay (or cause to be paid) any amounts due or owed to Holdings on the date when due, including any failure to instruct Counsel to disburse any amount to Holdings in accordance with the terms of this Agreement, RareGen shall thereafter pay to Holdings interest on such amount for the period from and including the date due, to but excluding the date on which such amount is paid in full, at a rate per annum (computed on the basis of the actual days elapsed) equal to the Default Rate.

 

ARTICLE IV
SETTLEMENT

 

4.1           Right to Settle. Subject to the provisions of this Article IV, (i) RareGen shall Settle any Claim or Claims or all or any portion of the Litigation with one or more Defendants at such times and upon such terms as Holdings may direct, in Holdings’ sole but reasonable discretion; provided, however, that RareGen shall not be required to enter into any such Settlement if the terms thereof would lead to liability or the creation of a financial or other obligation or restriction on the part of RareGen, Liquidia Corporation or Liquidia Technologies, Inc. (other than a covenant not to sue or other similar obligation customarily included in a settlement agreement and related to the subject matter of the Litigation), and (ii) RareGen shall not Settle any Claim or Claims or all or any portion of the Litigation without the prior written consent of Holdings. In connection with any such Settlement, RareGen will sign such releases and waivers as may be customary in a settlement of claims.

 

4.2           Communication of Settlement Offers. Subject to and pursuant to any applicable Protective Order and subject to the provisions of this Article IV, each of RareGen and Holdings shall promptly upon and after its receipt or knowledge of any Settlement offer, demand or proposal (but in no event later than two Business Days after its receipt or knowledge thereof), communicate to the other party all such Settlement offers, demands and proposals, and the substance of all Settlement discussions and provide copies of any related documents. If a Settlement offer, demand or proposal is not made or received in writing, the party receiving such Settlement offer, demand or proposal shall promptly upon and after its receipt or knowledge thereof (but in no event later than two Business Days after its receipt or knowledge of the offer, demand or proposal) provide the other party with a verbal summary of all provisions of the Settlement offer, demand or proposal.

 

4.3           Settlement Agreement. Subject to and pursuant to any applicable Protective Order and subject to the provisions of this Article IV, each of RareGen and Holdings shall provide to the other true, correct and complete copies of all fully executed Settlement documents, any amendments or modifications thereto, and subsequent documents relating to the collection or payment of the Litigation Proceeds.

 

ARTICLE V
LITIGATION MANAGEMENT

 

5.1           Control of the Litigation. As between them, RareGen agrees that Holdings shall have the sole and exclusive right to control, act or refrain from acting in respect of any act, request or decision in connection with the Litigation; provided that (i) Holdings shall consult with RareGen as it relates to, and keep RareGen informed of, any and all aspects of the Litigation and consider the input of RareGen with respect to any decisions Holdings makes regarding the Litigation, and (ii) none of the foregoing shall require Holdings to continue the Litigation to the extent Holdings reasonably determines that the Litigation no longer has merit. In furtherance thereof, RareGen shall (and shall instruct Counsel to) (A) communicate directly with Holdings with respect to the Litigation and provide Holdings with (i) written or email notice upon the occurrence of any material events in the Litigation, and (ii) a status update by conference call at other times upon Holdings’ reasonable request, and (B) take such actions (or refrain from taking such actions) with respect to the Litigation as may be directed by Holdings, in its reasonable good faith determination, from time to time. RareGen shall cooperate with Holdings in all reasonable respects in connection with the conduct of the Litigation and pursuit of the Claims, including making available records relating to the Litigation or that must be produced in the Litigation and furnishing to Holdings, employees of RareGen and its Affiliates as may be reasonably necessary for the conduct of the Litigation and to pursue the Claims; provided, however, that Holdings shall reimburse RareGen for any and all actual and reasonable costs and out-of-pocket expenses (in each case, without any mark-up) associated with the furnishing of services by employees and consultants of RareGen and its Affiliates at the request of Holdings or as reasonably required by law, regulation, rule or to satisfy a requirement of the court or the Litigation. For purposes of the preceding sentence, (i) Holdings shall not be required to reimburse RareGen for any time spent by employees or consultants of RareGen or its Affiliates in monitoring the Litigation, and (ii) for time spent by employees of RareGen and its Affiliates that will be reimbursed by Holdings, time will be billed in quarter hour increments at a rate equal to the applicable employee’s annual base salary plus benefits divided by 2,000 (or, with respect to a part-time employee, the number of hours such employee is scheduled to work on an annual basis).

 

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5.2           Counsel.

 

(a)                RareGen shall continue to retain Current Counsel, and shall not retain New Counsel, with respect to the Litigation unless otherwise directed by Holdings. In the event Holdings desires to retain New Counsel, Holdings agrees to notify RareGen in writing of such proposed New Counsel and to consult with RareGen prior to retaining such New Counsel, including with respect to the economic terms of engagement and any engagement agreement or letter to be entered into. Upon entering into any such engagement at Holdings’ direction, RareGen shall provide Holdings with a copy of the engagement agreement or letter entered into with such New Counsel. RareGen and Holdings agree that RareGen does not waive any current or future conflicts of interest with Current Counsel or New Counsel who may be retained and Holdings agrees that any such conflict of interest will be grounds for the immediate termination of counsel unless RareGen expressly waives any such conflict in writing, which waiver shall be granted unless such conflict relates to the same or a substantially related matter to those at issue in the Litigation.

 

(b)                At the request of Holdings, RareGen shall agree that its Counsel shall jointly represent RareGen and Holdings and agree to allow its Counsel to communicate directly with Holdings regarding the Litigation and take direction in the conduct of the Litigation directly from Holdings; provided, however, that, in such event, Holdings shall (and shall instruct Counsel to) communicate with RareGen and provide (or instruct Counsel to provide) RareGen with such information as RareGen would be obligated to provide to Holdings pursuant to this Article V and Article VI in the absence of such joint representation. In connection with any joint representation of RareGen and Holdings by Counsel, RareGen (and, if applicable, its Affiliates) shall execute such conflict waivers and joint prosecution agreements as may be reasonably requested by Holdings or such Counsel. For clarity, RareGen counsel shall remain involved in the Litigation with insight and review into all matters in the Litigation and the right to request changes to aspects of the Litigation that might interfere with RareGen’s business outside the scope of the Litigation, which requests shall be considered in good faith by Holdings.

 

5.3           Engagement Agreements. Neither RareGen nor Holdings shall enter into any new Engagement Agreements or amend, modify or waive any provision in any Engagement Agreements without the other party’s prior written consent; provided, however, that RareGen’s consent to any such new Engagement Agreement or amendment, modification or waiver shall not be unreasonably withheld.

 

5.4           Promotion Agreement. RareGen shall not terminate, amend, modify or waive any provision in the Promotion Agreement that could reasonably be expected to affect the Litigation or the division or collection of any Litigation Proceeds without Holdings’ prior written consent.

 

5.5          Senior Funder Agreement. RareGen shall not terminate, amend, modify or waive any provision in the Senior Funder Agreement without Holdings’ prior written consent. RareGen shall comply in all material respects with respect to its obligations under the Senior Funder Agreement.

 

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5.6           Conduct of the Litigation. RareGen shall use commercially reasonable efforts to, at the Senior Funder’s and Holdings’ sole expense (as set forth in Article II), (a) diligently pursue the Claims and the Litigation as directed by Holdings; (b) collect all Litigation Proceeds awarded or agreed upon as soon as practicable, including pursuing the enforcement of any final, non-appealable judgment or award as soon as possible as directed by Holdings; (c) enforce all of RareGen’s rights in connection with the Promotion Agreement and the Senior Funder Agreement, and promptly enter any judgment obtained in connection therewith in all appropriate jurisdictions as directed by Holdings; and (d) take all actions necessary in connection with the foregoing.

 

ARTICLE VI
LITIGATION INFORMATION; CONFIDENTIALITY

 

6.1           Communication of Litigation Information.

 

(a)                Information. Subject to Section 6.1(b) and any applicable Protective Order, during the Litigation, RareGen shall (and shall instruct Counsel to) forward to Holdings copies of all briefs, motions and final orders related to the Litigation within two Business Days of RareGen’s receipt or submission thereof. Copies of all briefs, motions and final orders forwarded to Holdings shall be subject to the restrictions placed on such materials by any and all applicable Protective Orders that may be in place in the Litigation at the time of the forwarding thereof.

 

(b)                Privileged Information. RareGen and Holdings acknowledge and agree that, as a result of their discussions leading up to, and the execution and performance of, the Transaction Documents, they have shared and continue to share a common interest privilege in information subject to the attorney work-product doctrine and documents relevant to the Litigation, which information and documents shall be deemed to be Confidential Information. Notwithstanding anything to the contrary contained herein, (i) RareGen has not and will not deliver any attorney-client privileged information to Holdings, (ii) RareGen has not and will not waive attorney-client privilege, and (iii) RareGen’s delivery obligations under this Article VI and the other applicable provisions of this Agreement shall specifically exclude any information or document the delivery of which to Holdings, in the opinion of Counsel, would waive the attorney-client privilege or result in a violation of a Protective Order.

 

6.2           Confidentiality.

 

(a)                Exclusive Ownership of Information by Disclosing Party. The Recipient agrees and acknowledges that all Confidential Information provided to it is and shall remain at all times the exclusive property of and owned by the Disclosing Party, and that the Recipient’s use or awareness of such Confidential Information shall create no rights, at law or in equity, in the Recipient in or to such Confidential Information, or any aspect or embodiment thereof. The furnishing of any Confidential Information hereunder shall not constitute (i) a grant, whether express or by implication, estoppel or otherwise, of any ownership interest in or license of any patent, trademark, service mark, business and trade secret or other proprietary right to such Confidential Information, or of any right to use such Confidential Information for any purpose other than as specified in this Agreement or (ii) a waiver of any attorney-client privilege or work product protection or any other applicable or available similar privilege or protection.

 

(b)                Non-Disclosure of Information. The Recipient shall not for any reason disclose, use, reveal, report, publish, transfer or make available, directly or indirectly, to any Person other than its representatives and Affiliates, any Confidential Information provided to it except (i) when necessary to further RareGen’s or Holdings’ legal interests in connection with the performance of its obligations or rights under this Agreement or the enforcement of its rights under this Agreement, (ii) as permitted by the Disclosing Party, or (iii) as required by law. Notwithstanding anything in this Section 6.2(b) to the contrary, Recipient shall not disclose any information that Recipient knows to be subject to a Protective Order.

 

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ARTICLE VII
TERMINATION OF AGREEMENT

 

7.1           Termination. This Agreement commences on the date hereof and, except as provided in Section 7.2, shall terminate at the time at which a Final Resolution has occurred, RareGen has complied with all of its obligations pursuant to this Agreement, and all Litigation Proceeds (if any) have been disbursed in accordance with this Agreement. In addition, in the event (a) (i) Holdings should breach or otherwise fail to satisfy any payment obligation set forth in this Agreement, provided such failure to pay is not subject to a good faith dispute between Holdings and RareGen, (ii) such breach or failure to perform is not a result of RareGen’s negligence or bad faith, and (iii) such breach or failure to perform shall not have been cured within thirty (30) days following receipt by Holdings of written notice of such breach or failure from RareGen (except in the case of a breach or failure that is not curable or Holdings has ceased to exercise commercially reasonable efforts to cure such breach or failure, in which event such termination shall be effective upon notice of termination by RareGen), or (b) Holdings files any petition or action for relief under any bankruptcy, reorganization, insolvency or moratorium law, or any involuntary petition is filed against Holdings (unless such petition is dismissed or discharged within thirty (30) days) under any bankruptcy statute now or hereafter in effect, or a custodian, receiver, trustee, assignee for the benefit of creditors is appointed to take possession, custody or control of any property of Holdings, then, at any time (but in the case of subsection (a), only while such breach or failure remains uncured), RareGen shall have the right, in its sole discretion and without the prior consent of Holdings, to enter into a Settlement, withdraw from the Litigation or otherwise cause the Litigation to be dismissed.

 

7.2           Consequences of Termination. The provisions of Sections 3.4, 6.2, and Articles I, VII, VIII, X, XI and XII shall survive termination of this Agreement. Without limiting the foregoing, (a) Holdings shall be entitled, in order to protect its own interest in relation to this Agreement, to keep copies of the Confidential Information provided to it pursuant to this Agreement, subject to Holdings’ ongoing obligations pursuant to Section 6.2; and (b) any rights or obligations accrued prior to the date of termination of this Agreement (including with respect to breaches of this Agreement) shall survive termination.

 

7.3           Clawback. In the event any payment to Holdings made under this Agreement must be returned or disgorged by Holdings as a result of a legal proceeding against RareGen or its Affiliates, including an insolvency proceeding or fraudulent conveyance proceeding against RareGen or its Affiliates, the right of Holdings to such payment shall be reinstated to the maximum extent permitted by law and Holdings shall have the right to recover such reinstated amount from Litigation Proceeds or, subject to the terms and conditions of this Agreement, from RareGen.

 

ARTICLE VIII
INDEMNIFICATION

 

8.1           Holdings Indemnity. Holdings shall indemnify, defend and hold RareGen (and RareGen’s Affiliates, officers, managers, directors, partners, equityholders, employees, permitted assigns, participants, attorneys and agents) harmless from any liability, claim, loss, judgment, damage, cost or expense, including all fees, costs and expenses of enforcement of the Transaction Documents (including legal fees, costs and expenses) that are incurred in connection with (i) any claim of Defendants or any other party against RareGen (or RareGen’s Affiliates, officers, managers, directors, partners, equityholders, employees, permitted assigns, participants, attorneys and agents) in connection with or resulting in any way from the Claims or the Litigation, or (ii) any breach by Holdings of any of the terms of this Agreement.

 

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8.2           RareGen Indemnity. RareGen shall indemnify, defend and hold Holdings (and Holdings’ officers, managers, directors, partners, equityholders, employees, permitted assigns, participants, attorneys and agents) harmless from any liability, claim, loss, judgment, damage, cost or expense, including all fees, costs and expenses of enforcement of the Transaction Documents (including legal fees, costs and expenses) that are incurred in connection with any breach by RareGen of any of the terms of this Agreement.

 

ARTICLE IX
SECURITY AGREEMENT

 

9.1           Grant of Security Interest. As security for the payment, performance and observance in full of all of the Secured Obligations, RareGen hereby grants, assigns and pledges to Holdings, its successors, agents, designees and assigns, a continuing security interest, in any and all right, title or interest of RareGen in or to any and all of the following assets, rights and properties now owned or at any time hereafter acquired by RareGen or in which RareGen now has or at any time in the future may acquire any right, title or interest (collectively, the “Collateral”):

 

(a)                the Litigation Proceeds;

 

(b)                the Claims;

 

(c)                RareGen’s rights under the Promotion Agreement and the Senior Funder Agreement to receive Litigation Proceeds;

 

(d)                a copy of RareGen’s books, Records, files, correspondence, evidentiary materials and records pertaining to the Claims;

 

(e)                rights under any appeal bond or similar instrument posted by any of the Defendants in the Litigation; and

 

(f)                 to the extent not otherwise included, all Proceeds of any and all of the foregoing.

 

9.2           Continuing Security Interest. RareGen acknowledges and agrees that the security interest of Holdings in the Collateral constitutes continuing collateral security for all of the Secured Obligations and shall remain in full force and effect until RareGen has performed all of its obligations under the Transaction Documents in full, including payment of the Secured Obligations.

 

9.3           Financing Statements. RareGen hereby irrevocably authorizes Holdings at any time and from time to time to file in any filing office in any jurisdiction that Holdings deems advisable (a) any UCC financing statement providing the name of RareGen as debtor, Holdings or its designee as secured party and indicating the Collateral (or all assets of RareGen) as collateral covered by the financing statement and (b) any other notice, filing or other document that Holdings deems necessary or advisable to perfect or protect the security interest or to maintain its first priority.

 

9.4           Covenants. So long as any of the Secured Obligations shall remain unpaid or unsatisfied, RareGen shall:

 

(a)                preserve and maintain its existence, rights, franchises and privileges in the jurisdiction of its organization, and will qualify and remain qualified in good standing in each jurisdiction where failure to preserve and maintain such existence, rights, franchises, privileges and qualification could reasonably be expected to have an adverse effect on the Litigation, RareGen’s financial condition or the collection of any Litigation Proceeds;

 

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(b)                at its own cost and expense, take such action and execute, acknowledge and deliver such agreements, instruments or other documents as Holdings may from time to time reasonably require in order (i) to perfect and protect or maintain the perfection of the security interest in the Collateral and (ii) to enable Holdings to enforce its rights in respect of the Collateral in accordance with the terms hereof;

 

(c)                do all things reasonably necessary at the written request of Holdings so that Holdings will have a perfected security interest in RareGen’s share of any judgment obtained in the Litigation, subordinated only to any security interest of Senior Funder in the Collateral, and to establish Holdings’ priority in RareGen’s share of any judgment obtained in the Litigation under applicable procedural law or court rules;

 

(d)                at its own cost and expense, take any and all actions necessary to defend its title to the Collateral against all parties and to defend the security interest of Holdings in the Collateral and the priority thereof against any Encumbrance or security interest (other than any security interest of Senior Funder in the Collateral);

 

(e)                not cease operations, liquidate or dissolve;

 

(f)                 not merge or consolidate with any other Person without notifying Holdings thereof within three (3) Business Days of the closing of such merger or consolidation;

 

(g)                not change its name unless RareGen shall have given Holdings at least thirty (30) days’ prior written notice of the change;

 

(h)                ensure that Holdings has a second priority right in and to the Litigation Proceeds, subordinated only to the interests of Senior Funder in the Litigation Proceeds;

 

(i)                 not (i) assign or transfer any interest in the Collateral, (ii) make any sale lease or other disposition of any of the Collateral, (iii) license any of the Collateral or (iv) grant or permit to exist any claims, Encumbrances or security interests (voluntary or involuntary) in or on the Collateral other than as set forth in the Senior Funder Agreement;

 

(j)                 comply in all material respects with applicable laws and regulations and all Orders applicable to it where failure to comply could reasonably be expected to have an adverse effect on the Litigation, RareGen’s financial condition or the collection of any Litigation Proceeds; and

 

(k)                pay and discharge as the same shall become due and payable, all of its obligations and liabilities (except any such amounts that are disputed in good faith by RareGen), including (i) all Tax liabilities, assessments and governmental charges or levies upon it or its properties or assets, unless the same are being contested in good faith by appropriate proceedings reasonably diligently conducted, (ii) all lawful claims that, if unpaid, would by law become an Encumbrance not permitted hereunder; and (iii) all debt, as and when due and payable.

 

9.5           Remedies and Applications of Proceeds.

 

(a)                If RareGen fails to pay or perform any of the Secured Obligations when due to be paid or performed, the failure shall constitute a default under this Agreement for the purposes of Part 6 of Article 9 of the UCC and Holdings shall have, in addition to all other rights and remedies granted to it in this Agreement and the other Transaction Documents, all rights and remedies of a secured party under the UCC and other applicable law.

 

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(b)                The cash proceeds actually received from the sale or other disposition or collection of Collateral may be applied to the expenses of the sale or other disposition or collection, including to the reimbursement of legal fees and expenses of Holdings. After such application, any cash proceeds resulting from the sale or other disposition or collection shall be paid to Holdings until Holdings has received an amount equal to the Secured Obligations.

 

9.6           Certain Waivers. RareGen waives, to the fullest extent permitted by applicable law:

 

(a)                except for the exercise of reasonable care in the custody of any Collateral in its possession and the accounting for moneys actually received by it hereunder, any duty of Holdings as to the preservation of any Collateral or as to the taking of any necessary steps to preserve rights against prior parties or any other rights pertaining to any Collateral;

 

(b)                any right to require Holdings to marshal any of the Collateral or other collateral or security for any of the Secured Obligations; and

 

(c)                any right to require Holdings (i) to proceed against any party, (ii) to exhaust any other collateral or security for any of the Secured Obligations, (iii) to pursue any remedy to the exclusion of any other remedy, or (iv) to make or give any presentments, demands for performance, notices of nonperformance, protests, notices of protests or notices of dishonor in connection with any of the Collateral.

 

9.7           Attorney-in-Fact. RareGen hereby appoints Holdings as RareGen’s attorney-in-fact to do all things in RareGen’s name and on RareGen’s behalf in connection with Holdings’ exercise of its rights and remedies under and in accordance with the Transaction Documents, including making any court filings required pursuant to Section 9.4(c). If this Section 9.7, or the application thereof, is or becomes invalid or unenforceable with respect to any circumstance, the application of this Section 9.7 to any other circumstance shall not be affected and shall remain valid and be enforceable to the full extent permitted by applicable Law.

 

9.8           Subordination to Senior Funder. The rights of Holdings hereunder and all of the Secured Obligations are hereby, and shall continue to be, subject and subordinate in priority and payment to the rights of Senior Funder under the Senior Funder Agreement and to all sums due or to become due to Senior Funder under the Senior Funder Agreement; provided that Holdings is not in any way restricted from enforcing its rights under Articles IV, V and VI hereof. Holdings agrees that so long as any sum is owed to Senior Funder pursuant to the Senior Funder Agreement, Holdings shall not receive or retain payments of from RareGen pursuant to this Agreement. If Holdings shall receive any such payments pursuant to this Agreement or any cash distributions in respect of, or other proceeds of, the Collateral in excess of what Holdings is entitled to pursuant to this Agreement (including this Section 9.8), Holdings shall hold the same in trust, as trustee, for the benefit of Senior Funder and shall promptly deliver the same to or at the direction of Senior Funder for the benefit of Senior Funder in precisely the form received (except for the endorsement or assignment thereof by Holdings without recourse or warranty), it being understood that it is the intention of the parties that until Senior Funder has been paid the amounts to which it is entitled pursuant to the Senior Funder Agreement in full, Senior Funder shall receive all payments and cash distributions of Litigation Proceeds from RareGen and all proceeds relating to any realization upon, distribution in respect of or interest in any of the Collateral as and to the extent set forth in the Senior Funder Agreement.

 

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ARTICLE X
GOVERNING LAW; JURISDICTION AND VENUE; DISPUTES

 

10.1         Governing Law. This Agreement and the transactions contemplated hereby shall be governed by and construed in accordance with the laws of the State of Delaware applicable to contracts entered into and fully to be performed in such state. Conflict of laws rules that would require the application of the law of any other jurisdiction shall not apply.

 

10.2         Arbitration of Disputes.

 

(a)                All disputes, claims or causes of action between the Parties arising out of or relating to the Transaction Documents and the transactions contemplated thereby shall be resolved in accordance with this Section 10.2.

 

(b)                All disputes between the Parties shall be resolved solely and exclusively, to the fullest extent permitted by law, by final, binding and confidential arbitration in Washington, D.C. The arbitration shall be administered by and in accordance with the then existing Rules of Practice and Procedure of Judicial Arbitration & Mediation Services, Inc. (JAMS), or its successor entity. Any awards or orders in such arbitrations may be entered and enforced as judgments in federal courts of competent jurisdiction.

 

(c)                The appointed arbitrator shall apply the laws of the State of Delaware applicable to contracts entered into and fully to be performed in such state for purposes of determining any dispute.

 

(d)                By agreeing to these arbitration procedures, the Parties waive the right to resolve any such dispute through a trial by jury or judge or by administrative proceeding. The arbitrator shall (i) have the authority to compel adequate discovery for the resolution of the dispute and to award such relief as would otherwise be permitted by law; and (ii) issue a written arbitration decision, including the arbitrator’s essential findings and conclusions and a statement of the award. The arbitrator shall be authorized to determine if an issue is subject to this arbitration obligation and to award any and all remedies that either Party would be entitled to seek in a court of law.

 

(e)                The prevailing Party in such arbitration shall be entitled to receive reimbursement from the other Party of the prevailing party’s reasonable legal fees, costs and disbursements in connection with such arbitration.

 

(f)                 The Parties shall have the right to seek specific performance or equitable relief in arbitration pursuant to this Section 10.2.

 

ARTICLE XI
NOTICES

 

11.1          Method. All notices, reports, records or other communications that are required or permitted to be given to the Parties under this Agreement shall be sufficient in all respects if given in writing and delivered in person, by electronic mail (if receipt is confirmed, electronically or otherwise), by overnight courier, or by registered or certified mail, postage prepaid, return receipt requested, to the receiving Party at the following address(es) for such Party or such other address(es) as such Party may have given to the other Party pursuant to this Section 11.1:

 

If to RareGen: RareGen, LLC
  P.O. Box 110085
  Research Triangle Park, NC 27709
  Attn: Neal Fowler
  E-mail: Neal.Fowler@liquidia.com

 

If to Holdings: PBM RG Holdings, LLC
  200 Garrett Street, Suite S
  Charlottesville, VA 22902
  Attn: General Counsel
  E-mail: legal@pbmcap.com

 

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11.2         Receipt. Notice shall be deemed given on (a) the date such notice is personally delivered, (b) three days after the mailing if sent by registered or certified mail, (c) one Business Day after the date of delivery to the overnight courier if sent by overnight courier, or (d) the date such notice is transmitted by electronic mail, if such transmission is prior to 5:00 p.m. Eastern time on a Business Day, or the next succeeding Business Day if such transmission is later.

 

ARTICLE XII
GENERAL

 

12.1         Interpretation. Section headings in this Agreement are for convenience of reference only and shall not affect the interpretation or construction of this Agreement. The Transaction Documents will be deemed to have been jointly drafted by the Parties and no provision shall be interpreted or construed for or against either Party because such Party actually or purportedly prepared or requested such provision, any other provision or the Transaction Documents as a whole. The singular includes the plural in this Agreement and vice versa. All pronouns shall include the masculine, feminine or neuter thereof, wherever the context and facts require such construction. Examples and words like “including” are deemed to mean “without limitation.” All references in this Agreement to Articles and Sections are references to the relevant provisions of this Agreement.

 

12.2         Merger Clause. This Agreement and the other agreements, documents or instruments contemplated hereby shall constitute the entire agreement between the Parties, and shall supersede all prior agreements, understandings and negotiations between the Parties with respect to the subject matter hereof.

 

12.3          Assignment. This Agreement shall inure to the benefit of, and shall be binding upon, the Parties and their respective successors, permitted assigns, and legal representatives. Neither this Agreement, nor any rights, interests, obligations and duties arising hereunder, may be assigned or otherwise conveyed by RareGen or Holdings, directly or indirectly, without the express consent in writing of the other Party.

 

12.4         Third Party Beneficiaries. Except as provided in Article VIII, this Agreement is made solely and specifically among and for the benefit of the Parties, and their respective successors and permitted assigns, and no other Person shall have any rights, interests or claims hereunder or be entitled to any benefits under or on account of this Agreement as a third party beneficiary or otherwise.

 

12.5         Independent Parties. The Parties are independent contractors to one another with respect to the Transaction Documents and neither Party shall be deemed to be an agent, employee or joint venturer of the other by virtue of the Transaction Documents. Nothing in the Transaction Documents shall constitute RareGen and Holdings as partners or fiduciaries of one another. Neither Party shall have any power, right or authority to bind the other to any obligation or liability, to assume or create any obligation or liability or transact any business in the name or on behalf of the other, or make any promises or representations on behalf of the other, except as expressly set forth herein.

 

12.6          Costs, Expenses and Fees. Each party shall bear its own costs and expenses in connection with the transactions described herein.

 

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12.7         Amendment; Waiver. This Agreement shall not be amended, and no term or provision of this Agreement may be waived, except in writing signed by a duly authorized representative of each Party. No delay on the part of a Party in exercising any right, power or remedy under this Agreement shall operate as a waiver thereof, and no single or partial exercise of any right, power or remedy by a Party shall preclude any further exercise thereof.

 

12.8         Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed an original but all of which shall constitute one and the same instrument. Signatures to this Agreement may be delivered by facsimile or other electronic means and any copy so delivered shall be deemed to be an original.

 

12.9         Severability. If any provision of this Agreement, or the application thereof to any Person or circumstances, is or becomes invalid or unenforceable, the remaining provisions shall not be affected and each remaining provision shall remain valid and be enforceable to the full extent permitted by applicable law.

 

12.10       Further Assurances. Each party shall promptly execute all documents and do all things that the other Party from time to time reasonably requires to effect, perfect or complete the provisions of this Agreement and any transaction contemplated hereby.

 

[Signature page follows]

  

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IN WITNESS WHEREOF, this Financing Agreement has been executed by the undersigned as of the date first set forth above.

  

  PBM RG HOLDINGS, LLC
  By: PBM Capital Group, LLC, its manager
     
     
  By: /s/ Damian deGoa
  Name: Damian deGoa
  Title: Chief Executive Officer
     
     
  RAREGEN, LLC
     
     
  By: /s/ Damian deGoa
  Name: Damian deGoa
  Title: Chief Executive Officer

  

     

 

Exhibit 10.2

 

INDEMNIFICATION AGREEMENT

 

This Indemnification Agreement (this “Agreement”) is made as of [________] [__], 202[_], by and between Liquidia Corporation, a Delaware corporation (the “Corporation”), and [__________] (“Indemnitee”). Capitalized terms used, but not otherwise defined herein, shall have the meanings set forth in Section 1.

 

RECITALS

 

A.            Highly competent and qualified persons have become more reluctant to serve corporations as directors, officers or in other capacities unless they are provided with adequate protection through insurance coverage or adequate indemnification against risks of claims and actions against them arising out of their service to and activities on behalf of the corporation.

 

B.            The board of directors of the Corporation (the “Board”) has determined that, in order to attract and retain competent and qualified individuals, the Corporation will seek to maintain on an ongoing basis, at its sole expense, directors’ and officers’ liability insurance to protect persons serving the Corporation and its subsidiaries from certain liabilities. However, as a result of changes in the marketplace for insurance it has become increasingly difficult to obtain directors’ and officers’ liability insurance on terms providing reasonable protection at reasonable cost. The uncertainties relating to directors’ and officers’ liability insurance have increased the difficulty of attracting and retaining such persons.

 

C.            The Board has determined that the potential inability to attract and retain highly competent and qualified persons to serve the Corporation would be detrimental to the best interests of the Corporation and its stockholders and that the Corporation should act to assure such persons that there will be increased certainty of adequate protection against risks of claims and actions against them arising out of their service to and activities on behalf of the Corporation in the future.

 

D.            The Board has determined that it is reasonable, prudent and necessary for the Corporation to contractually obligate itself to indemnify, and to advance expenses on behalf of, such persons to the fullest extent permitted by applicable law so that they will serve or continue to serve the Corporation free from undue concern that they will not be so indemnified.

 

E.            Indemnitee has agreed to serve the Corporation in an officer and/or director capacity provided that Indemnitee is provided the protections available under this Agreement, the Corporation’s Amended and Restated Certificate of Incorporation (as amended, modified, supplemented, restated or amended and restated from time to time, the “Certificate of Incorporation”), the Corporation’s Amended and Restated Bylaws (as amended and/or restated from time to time, the “Bylaws”) and directors’ and officers’ liability insurance coverage that is adequate in the present circumstances.

 

F.            This Agreement is a supplement to and in furtherance of any protections provided by the Certificate of Incorporation, the Bylaws and any resolutions adopted pursuant thereto, and shall not be deemed a substitute therefor, nor to diminish or abrogate any rights of Indemnitee thereunder. In addition, Indemnitee will be entitled to indemnification pursuant to the Delaware General Corporation Law.

 

NOW THEREFORE, in consideration of the foregoing and the covenants, promises and representations set forth herein, and for other good and valuable consideration, including Indemnitee’s agreement to serve as a director and/or officer of the Corporation after the date hereof, and intending to be legally bound hereby, the parties hereto agree as follows:

 

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1.            Certain Definitions for Purposes of this Agreement. The following terms as used in this Agreement shall have the meanings set forth below.

  

(a)            “Change in Control” means:

 

(i)            merger, consolidation or reorganization approved by the Corporation’s stockholders, unless securities representing more than 50 percent of the total and combined voting power of the outstanding voting securities of the successor corporation are immediately thereafter beneficially owned, directly or indirectly, by the persons who beneficially owned the Corporation’s outstanding voting securities immediately prior to such transaction;

 

(ii)            The sale, transfer or other disposition of all or substantially all of the Corporation’s assets as an entirety or substantially as an entirety, occurring within a 12-month period, and representing, at a minimum, not less than 50 percent of the total gross fair market value of all assets of the Corporation, to any person, entity, or group of persons acting in consort, other than a sale, transfer or disposition to: (A) a stockholder of the Corporation in exchange for or with respect to its stock; (B) an entity, 50 percent or more of the total value or voting power of which is owned, directly or indirectly, by the Corporation; (C) a person, or more than one person acting as a group, that owns, directly or indirectly, 50 percent or more of the total value or voting power of the outstanding stock of the Corporation; or (D) an entity, at least 50 percent of the total value or voting power of which is owned by a person described in (C); or

 

(iii)            Any transaction or series of related transactions pursuant to which any person or any group of persons comprising a “group” within the meaning of Rule 13d-5(b)(1) under the Securities Exchange Act of 1934, as amended (other than the Corporation or a person that, prior to such transaction or series of related transactions, directly or indirectly controls, is controlled by or is under common control with, the Corporation) becomes directly or indirectly the beneficial owner (within the meaning of Rule 13d-3 of the Securities Exchange Act of 1934, as amended) of securities possessing (or convertible into or exercisable for securities possessing) more than 50 percent of the total combined voting power of the Corporation’s securities outstanding immediately after the consummation of such transaction or series of related transactions, whether such transaction involves a direct issuance from the Corporation or the acquisition of outstanding securities held by one or more of the Corporation’s stockholders; or

 

(iv)            A change in the composition of the Board over a period of 12 consecutive months or less such that a majority of the Board members ceases, by reason of one or more contested elections for Board membership, to be comprised of individuals whose election is endorsed by a majority of the members of the Board immediately before the date of election.

 

A transaction shall not constitute a Change in Control if its sole purpose is to change the state of the Corporation’s incorporation or to create a holding company that will be owned in the same proportions by the persons who held the Corporation’s securities immediately before such transaction.

 

(b)            “Corporation” includes any domestic or foreign predecessor entity of the Corporation in a merger or other transaction in which the predecessor’s existence ceased on consummation of the transaction.

 

(c)            “Director” means an individual who is or was a director of the Corporation or an individual who, while a director of the Corporation, is or was serving at the Corporation’s request as a director, officer, partner, trustee, employee, or agent of another foreign or domestic corporation, partnership, limited liability company, joint venture, trust, employee benefit plan, or other entity. A Director is considered to be serving an employee benefit plan at the Corporation’s request if that Director’s duties to the Corporation also impose duties on, or otherwise involve services by, him or her to the plan or to participants in or beneficiaries of the plan.

 

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(d)            “Disinterested Director” or “Disinterested Officer” means a Director or Officer, respectively, who at the time of a vote or selection referred to in Section 4(b) or 5(c) is not a party to the Proceeding.

 

(e)            “Enterprise” means (i) the Corporation, (ii) any other corporation, partnership, joint venture, trust, employee benefit plan or other enterprise that is an affiliate or wholly or partially owned subsidiary of the Corporation and of which Indemnitee is or was serving as a director, trustee, general partner, managing member, officer, employee, agent or fiduciary, and (iii) any other corporation, partnership, limited liability company, joint venture, trust, employee benefit plan or other enterprise of which Indemnitee is or was serving at the express written request of the Corporation as a director, trustee, general partner, managing member, officer, employee, agent or fiduciary.

 

(f)            “Expenses” includes all reasonable counsel fees, retainers, court costs, transcript costs, fees of experts, witness fees, travel expenses, duplicating costs, printing and binding costs, telephone charges, postage, delivery service fees, and all other disbursements or expenses of the types customarily incurred in connection with prosecuting, defending, preparing to prosecute or defend, investigating, being or preparing to be a witness in, or otherwise participating in, a Proceeding. Expenses also shall include Expenses incurred in connection with any appeal resulting from any Proceeding, including the premium, security for, and other costs relating to any cost bond, supersede as bond, or other appeal bond or its equivalent. Expenses, however, shall not include amounts paid in settlement by Indemnitee or the amount of judgments or fines against Indemnitee.

 

(g)            “Independent Legal Counsel” means a law firm, or a member of a law firm, that is experienced in matters of corporation law and neither presently is, nor in the past five years has been, retained to represent: (i) the Corporation, (ii) Indemnitee, (iii) any affiliate of the Corporation or Indemnitee, (iv) any member of Indemnitee’s immediate family, (v) any company of which Indemnitee is an executive officer, in each case in any matter material to such party, or (vi) any other party to the Proceeding giving rise to a claim for indemnification hereunder. Notwithstanding the foregoing, the term “Independent Legal Counsel” shall not include any person who, under the applicable standards of professional conduct then prevailing, would have a conflict of interest in representing either the Corporation or Indemnitee in an action to determine Indemnitee’s rights under this Agreement.

 

(h)            “Liability” includes the obligation to pay a judgment, settlement, penalty, fine (including an excise tax assessed with respect to an employee benefit plan), or reasonable Expenses actually incurred with respect to a Proceeding.

 

(i)            “Officer” means an individual who is or was an officer of the Corporation or an individual who, while an officer of the Corporation, is or was serving at the Corporation’s request as a director, officer, partner, trustee, employee, or agent of another foreign or domestic corporation, partnership, limited liability company, joint venture, trust, employee benefit plan, or other entity. An Officer is considered to be serving an employee benefit plan at the Corporation’s request if that Officer’s duties to the Corporation also impose duties on, or otherwise involve services by, him or her to the plan or to participants in or beneficiaries of the plan.

 

(j)            “Proceeding” includes any threatened, pending or completed action, suit, arbitration, alternate dispute resolution mechanism, investigation, inquiry, administrative hearing or any other actual, threatened or completed proceeding, whether brought by or in the right of the Corporation or other Enterprise or otherwise and whether civil, criminal, administrative or investigative, in which Indemnitee was, is or will be involved as a party or otherwise, by reason of the fact that Indemnitee is or was an officer or director of the Corporation, by reason of any action taken by Indemnitee or of any inaction on Indemnitee’s part while acting as an officer or director of the Corporation, or by reason of the fact that Indemnitee is or was serving at the request of the Corporation as a director, officer, employee, agent or fiduciary of another Enterprise; in each case whether or not Indemnitee is acting or serving in any such capacity at the time any liability or expense is incurred for which indemnification can be provided under this Agreement; including one pending on or before the date of this Agreement, but excluding one initiated by Indemnitee pursuant to this Agreement to enforce Indemnitee’s rights under this Agreement.

 

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(k)            “Reviewing Party” shall mean the person or persons making the entitlement determination pursuant to Section 5 of this Agreement, and shall not include a court making any determination under this Agreement or otherwise.

 

2.            Basic Indemnification Arrangement.

 

(a)            Obligation to Indemnify; Standard of Conduct. Except as provided in Sections 2(e), 2(f), 2(g) or 7 below, the Corporation shall indemnify Indemnitee and hold harmless Indemnitee, to the fullest extent authorized or permitted by applicable law, in the event Indemnitee is made a party to a Proceeding because he or she is or was a Director or Officer, against Liability incurred in the Proceeding if:

 

(1)            Indemnitee conducted himself or herself in good faith and in a manner he or she reasonably believed to be in, or not opposed to, the best interests of the Corporation; and

 

(2)            in the case of any criminal Proceeding, Indemnitee had no reasonable cause to believe his or her conduct was unlawful.

 

(b)            Service with Respect to Employee Benefit Plan. Indemnitee’s conduct with respect to an employee benefit plan for a purpose he or she believed in good faith to be in the interests of the participants in and beneficiaries of the plan is conduct that satisfies the requirement of Section 2(a)(1).

 

(c)            Reliance as Safe Harbor. For purposes of any determination hereunder, Indemnitee shall be deemed to have acted in good faith and in a manner reasonably believed to be in or not opposed to the best interests of the Corporation, or, with respect to any criminal Proceeding, to have had no reasonable cause to believe Indemnitee’s conduct was unlawful, if Indemnitee’s conduct was based primarily on: (i) the records or books of account of the Corporation or relevant entity, including financial statements, (ii) information supplied to Indemnitee by the officers of the Corporation or relevant entity in the course of their duties, (iii) the advice of legal counsel for the Corporation or relevant entity, or (iv) information or records given or reports made to the Corporation or relevant entity by an independent certified public accountant, or by an appraiser or other expert selected with reasonable care by the Corporation or relevant entity. The provisions of this Section 2(c) shall not be deemed to be exclusive or to limit in any way the other circumstances in which Indemnitee may be deemed to have met the relevant standard of conduct set forth in this Agreement.

 

(d)            Termination of Proceeding Not Determinative. The termination of a Proceeding by judgment, order, settlement, or conviction, or upon a plea of nolo contendere or its equivalent shall not, of itself, create a presumption or be determinative that Indemnitee is not entitled to indemnification or reimbursement of Expenses hereunder or otherwise.

 

(e)            Limits on Indemnification. Unless, and then only to the extent that, a court of competent jurisdiction acting pursuant to Section 6 of this Agreement or the Delaware General Corporation Law, determines that, in view of the circumstances of the case, Indemnitee is fairly and reasonably entitled to indemnification, the Corporation shall not indemnify Indemnitee under this Agreement:

 

  4  

 

 

(1)            in connection with a Proceeding by or in the right of the Corporation, except for reasonable Expenses (including an excise tax assessed with respect to an employee benefit plan) and amounts paid in settlement not exceeding, in the judgment of the Board, the estimated expense of litigating the Proceeding to conclusion, actually and reasonably incurred in connection with the defense or settlement of the Proceeding, including any appeal thereof; or

 

(2)            in connection with a Proceeding by or in the right of the Corporation with respect to any claim, issue or matter as to which Indemnitee shall have been adjudged liable to the Corporation.

 

(f)            Proceeding Brought by Indemnitee. Notwithstanding any other provision of this Agreement, Indemnitee shall not be entitled to indemnification or advancement of Expenses under this Agreement with respect to any Proceeding or claim brought or made by Indemnitee against the Corporation or its Directors, Officers, employees or other indemnitees, other than (i) a Proceeding or claim seeking or defending Indemnitee’s right to indemnification or advancement of Expenses pursuant to Section 6 of this Agreement or otherwise, or (ii) a Proceeding authorized by the Board prior to its initiation.

 

(g)            Settlements. The Corporation acknowledges that a settlement or other disposition short of final judgment may be successful if it permits a party to avoid expense, delay, distraction, disruption and uncertainty. In the event that any Proceeding to which Indemnitee is a party is resolved in any manner other than by adverse judgment against Indemnitee (including settlement of such Proceeding with or without payment of money or other consideration) it shall be presumed that Indemnitee has been successful on the merits or otherwise in such Proceeding. Anyone seeking to overcome this presumption shall have the burden of proof and the burden of persuasion by clear and convincing evidence.

 

(h)            Mandatory Indemnification. The Corporation shall indemnify Indemnitee to the extent that he or she has been successful, on the merits or otherwise, in the defense of any Proceeding to which Indemnitee was a party, or in defense of any claim, issue or matter, because Indemnitee is or was a Director or Officer, against reasonable Expenses incurred by Indemnitee in connection with the Proceeding.

 

3.            Contribution.

 

(a)            Whether or not the indemnification provided hereunder is available, in respect of any Proceeding in which the Corporation is jointly liable with Indemnitee (or would be if joined in such Proceeding), the Corporation shall pay the entire amount of any Expenses, judgments, penalties, fines or amounts paid or to be paid in settlement of such Proceeding without requiring Indemnitee to contribute to such payment and the Corporation hereby waives and relinquishes any right of contribution it may have against Indemnitee. The Corporation shall not enter into any settlement of any Proceeding in which the Corporation is jointly liable with Indemnitee (or would be if joined in such Proceeding) unless such settlement provides for a full and final release of all claims asserted against Indemnitee without any injunction or other equitable relief being imposed against Indemnitee.

 

(b)            Without diminishing or impairing the obligations of the Corporation set forth in the preceding subparagraph, if, for any reason, Indemnitee shall elect or be required to pay all or any portion of any judgment or settlement in any Proceeding in which the Corporation is jointly liable with Indemnitee (or would be if joined in such Proceeding), the Corporation shall contribute to the amount of Expenses, judgments, penalties, fines and amounts paid in settlement actually and reasonably incurred and paid or payable by Indemnitee in proportion to the relative benefits received by the Corporation and all officers, directors or employees of the Corporation, other than Indemnitee, who are jointly liable with Indemnitee (or would be if joined in such Proceeding), on the one hand, and Indemnitee, on the other hand, from the transaction from which such Proceeding arose; provided, however, that the proportion determined on the basis of relative benefit may, to the extent necessary to conform to law, be further adjusted by reference to the relative fault of the Corporation and all officers, directors or employees of the Corporation other than Indemnitee who are jointly liable with Indemnitee (or would be if joined in such Proceeding), on the one hand, and Indemnitee, on the other hand, in connection with the events that resulted in such Expenses, judgments, penalties, fines or settlement amounts, as well as any other equitable considerations which the Delaware General Corporation Law may require to be considered. The relative fault of the Corporation and all officers, directors or employees of the Corporation, other than Indemnitee, who are jointly liable with Indemnitee (or would be if joined in such Proceeding), on the one hand, and Indemnitee, on the other hand, shall be determined by reference to, among other things, the degree to which their actions were motivated by intent to gain personal profit or advantage, the degree to which their liability is primary or secondary and the degree to which their conduct is active or passive.

 

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(c)            The Corporation hereby agrees to indemnify and hold harmless Indemnitee from any claims of contribution which may be brought by officers, directors or employees of the Corporation, other than Indemnitee, who may be jointly liable with Indemnitee.

 

4.            Advances for Expenses.

 

(a)            Obligations and Requirements. The Corporation shall advance, to the extent not prohibited by applicable law, the Expenses incurred by or on behalf of Indemnitee in connection with any Proceeding, and such advancement shall be made within thirty (30) days after the receipt by the Corporation of any statement requesting such advances (which shall include invoices received by Indemnitee in connection with such Expenses but, in the case of invoices in connection with legal services, any references to legal work performed or to expenditures made that would cause Indemnitee to waive any privilege accorded by applicable law shall not be included with the invoice) from time to time, whether prior to or after final disposition of any Proceeding. Any such statement shall reasonably evidence the Expenses incurred by Indemnitee. Advances shall be unsecured and interest free. Advances shall be made without regard to Indemnitee’s ability to repay the expenses and without regard to Indemnitee’s ultimate entitlement to indemnification under the other provisions of this Agreement. Advances shall include any and all reasonable Expenses incurred pursuing an action to enforce this right of advancement, including Expenses incurred preparing and forwarding statements to the Corporation to support the advances claimed. Indemnitee shall qualify for advances upon the execution and delivery to the Corporation of this Agreement, subject to the condition that if and to the extent that it is ultimately determined by a court of competent jurisdiction in a final judgment, not subject to appeal, that Indemnitee is not entitled to be indemnified by the Corporation, Indemnitee shall undertake to the fullest extent permitted by law to repay the advance. Such undertaking shall be an unlimited general obligation of Indemnitee but need not be secured and shall be accepted without reference to Indemnitee’s financial ability to make repayment. The right to advances under this Section 4 shall in all events continue until final disposition of any Proceeding, including any appeal thereof.

 

(b)            Evaluation of Reasonableness of Expenses. Evaluation as to reasonableness of Expenses of Indemnitee in the specific case shall be made in the same manner as the determination that indemnification is permissible, as described in Section 5 below, except that if the determination is made by Independent Legal Counsel, evaluation as to reasonableness of Expenses shall be made by those entitled under Section 5(c)(3) to select Independent Legal Counsel. Notwithstanding the foregoing sentence, any Expenses claimed by Indemnitee shall be deemed reasonable if the Reviewing Party fails to make the reasonableness evaluation within thirty (30) days following the Corporation’s receipt of invoices for specific Expenses to be reimbursed or advanced.

 

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5.            Authorization of and Determination of Entitlement to Indemnification.

  

(a)            Entitlement Determination. The Corporation and Indemnitee acknowledge that indemnification of Indemnitee under Section 2 of this Agreement has been pre-authorized by the Corporation as permitted by the Delaware General Corporation Law. Nevertheless, the Corporation shall not indemnify Indemnitee under Section 2 unless a separate determination has been made in the specific case that indemnification of Indemnitee is permissible in the circumstances because Indemnitee has met the relevant standard of conduct set forth in Section 2(a); provided, however, that: (i) no such entitlement decision need be made prior to the advancement of Expenses; and (ii) regardless of the result or absence of any such determination, the Corporation shall make any indemnification mandated by Section 2(h) above.

 

(b)            To obtain indemnification (including advancement of Expenses) under this Agreement, Indemnitee shall submit to the Corporation a written request, including therein or therewith such documentation and information as is reasonably available to Indemnitee and is reasonably necessary to determine whether and to what extent Indemnitee is entitled to indemnification. The Secretary of the Corporation shall, promptly upon receipt of such a request for indemnification, advise the Board in writing that Indemnitee has requested indemnification.

 

(c)            Reviewing Party. The determination referred to in Section 5(a) shall be made, at the election of the Board, by any of the following Reviewing Parties (unless a Change in Control shall have occurred after Indemnitee first began serving as a Director or Officer, in which case Indemnitee shall be entitled to designate that the determination shall be made by Independent Legal Counsel selected in the manner set forth in Section 5(d) below):

 

(1)            by the Board by a majority vote of a quorum consisting of Disinterested Directors; or

 

(2)            by a majority vote of a committee duly designated by the Board (in which designation directors who do not qualify as Disinterested Directors may participate) consisting solely of two or more Disinterested Directors; or

 

(3)            by Independent Legal Counsel: (A) Selected in the manner prescribed in paragraph (1) or (2) of this Section 5(c); or (B) if a quorum of Directors cannot be obtained for purposes of paragraph (1) and the committee cannot be designated under paragraph (2), selected by a majority vote of the full Board (in which selected directors who do not qualify as Disinterested Directors may participate); or

 

(4)            by the stockholders of the Corporation, by a majority vote of a quorum consisting of stockholders who were not Parties to that Proceeding or, if no such quorum is obtainable, by a majority vote of stockholders who were not Parties to that Proceeding.

 

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(d)            Selection of Counsel after Change in Control. If a Change in Control shall have occurred, Independent Legal Counsel shall be selected by Indemnitee (unless Indemnitee requests that the selection be made in the manner described in Section 5(c)(3)), and Indemnitee shall give written notice to the Corporation advising it of the identity of the Independent Legal Counsel so selected. In either event, Indemnitee or the Corporation, as the case may be, may, within fifteen (15) days after the written notice of selection has been given, deliver to the Corporation or to Indemnitee, as the case may be, a written objection to the selection; provided, however, that the objection may be asserted only on the ground that the counsel so selected does not meet the requirements of “Independent Legal Counsel” as defined in Section 1 of this Agreement. The objection shall set forth with particularity the factual basis of the assertion. If a written objection is made and substantiated, the counsel selected may not serve as Independent Legal Counsel unless and until the objection is withdrawn or a court has determined that the objection is without merit. If, within fifteen (15) days after submission by Indemnitee of a written request for indemnification, no Independent Legal Counsel shall have been selected and not objected to, either the Corporation or Indemnitee may petition the court conducting the Proceeding, or another court of competent jurisdiction, for resolution of any objection that shall have been made by the Corporation or Indemnitee to the other’s selection of Independent Legal Counsel and/or for the appointment as Independent Legal Counsel of a person selected by the court or by another person that the court shall designate, and the person with respect to whom all objections are so resolved or the person so appointed shall act as Independent Legal Counsel under Section 5(c).

 

(e)            Cooperation by Indemnitee. Indemnitee shall cooperate with the Reviewing Party with respect to its determination of Indemnitee’s entitlement to indemnification, including providing to the Reviewing Party on reasonable advance request any documentation or information which is not privileged or otherwise protected from disclosure and which is reasonably available to Indemnitee and reasonably necessary to the determination. Any Expenses incurred by Indemnitee in so cooperating with the Reviewing Party shall be borne by the Corporation, regardless of the determination as to Indemnitee’s entitlement to indemnification.

 

(f)            If the Reviewing Party shall not have made a determination within sixty (60) days after receipt by the Corporation of the request therefor, the requisite determination of entitlement to indemnification shall be deemed to have been made and Indemnitee shall be entitled to such indemnification absent (i) a misstatement by Indemnitee of a material fact, or an omission of a material fact necessary to make Indemnitee’s statement not materially misleading, in connection with the request for indemnification, or (ii) a prohibition of such indemnification under applicable law; provided, however, that (x) such 60-day period may be extended for a reasonable time, not to exceed an additional thirty (30) days, if the Reviewing Party in good faith requires such additional time to obtain or evaluate documentation and/or information relating thereto; and (y) that the foregoing provisions of this Section 5(f) shall not apply if the determination of entitlement to indemnification is to be made by the stockholders pursuant to Section 5(c)(4) and if (A) within fifteen (15) days after receipt by the Corporation of the request for such determination, the Board or the Disinterested Directors, if appropriate, resolve to submit such determination to the stockholders for their consideration at an annual meeting thereof to be held within seventy-five (75) days after such receipt and such determination is made thereat, or (B) a special meeting of stockholders is called within fifteen (15) days after such receipt for the purpose of making such determination, such meeting is held for such purpose within sixty (60) days after having been so called and such determination is made thereat.

 

(g)          Other.

 

(i)            In making a determination with respect to entitlement to indemnification hereunder, the Reviewing Party shall presume that Indemnitee is entitled to indemnification under this Agreement, and anyone seeking to overcome this presumption shall have the burden of proof and the burden of persuasion by clear and convincing evidence. Neither the failure of the Corporation (including by its directors or Independent Legal Counsel) to have made a determination prior to the commencement of any action pursuant to this Agreement that indemnification is proper in the circumstances because Indemnitee has met the applicable standard of conduct, nor an actual determination by the Corporation (including by its directors or Independent Legal Counsel) that Indemnitee has not met such applicable standard of conduct, shall create a presumption that Indemnitee has not met the applicable standard of conduct.

 

(ii)            The Reviewing Party, however chosen, shall make the requested determination as promptly as reasonably practicable after a request for indemnification is presented.

 

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(iii)            Any determination by Independent Legal Counsel under this Section 5 shall be delivered in the form of a written opinion to the Board with a copy to Indemnitee.

 

(iv)            The Corporation shall pay any and all reasonable fees and expenses of Independent Legal Counsel incurred by the counsel in connection with acting pursuant to this Section 5, and the Corporation shall pay all reasonable fees and expenses incident to the procedures of this Section 5, regardless of the manner in which such Independent Legal Counsel was selected or appointed.

 

(v)            On the due commencement of any action to seek court-ordered indemnification pursuant to Section 6 of this Agreement, Independent Legal Counsel shall be discharged and relieved of any further responsibility in that capacity, subject to the applicable standards of professional conduct then prevailing.

 

6.            Court-Ordered Indemnification and Advances for Expenses.

 

(a)            Procedure. If Indemnitee is a party to a Proceeding, he or she may apply for indemnification or for advances for Expenses to the court conducting the Proceeding or to another court of competent jurisdiction. For purposes of this Agreement, the Corporation consents to personal jurisdiction and venue in any court in which is pending a Proceeding to which Indemnitee is a party. Regardless of any determination by the Reviewing Party that Indemnitee is not entitled to indemnification or to advancement of Expenses or as to the reasonableness of Expenses, and regardless of any failure by the Reviewing Party to make a determination as to the entitlement or the reasonableness of Expenses, the court’s review shall be a de novo review. After receipt of an application and after giving any notice it considers necessary, the court may:

 

(1)            order indemnification or the advance for Expenses if it determines that Indemnitee is entitled to indemnification or to advance for Expenses under this Agreement, the Delaware General Corporation Law or otherwise; or

 

(2)            order indemnification or the advance for Expenses if it determines that, in view of all the relevant circumstances, it is fair and reasonable to indemnify Indemnitee, or to advance Expenses to Indemnitee, regardless of whether Indemnitee has met the relevant standard of conduct, complied with the requirements for advancement of Expenses, or been adjudged liable in a Proceeding referred to in Section 2(e) above (in which case any court-ordered indemnification need not be limited to Expenses incurred by Indemnitee, but may include penalties, fines, amounts paid in settlement, judgments and any other amounts ordered by the court to be indemnified or advanced).

 

(b)            Payment of Expenses to Seek Court-Ordered Indemnification. If the court determines that Indemnitee is entitled to indemnification or to advance for Expenses, the Corporation shall pay Indemnitee’s reasonable Expenses to obtain the court-ordered indemnification or advance for Expenses.

 

7.            Limitations on Indemnification. Regardless of whether Indemnitee has met the relevant standard of conduct set forth in Section 2(a), nothing in this Agreement shall require or permit indemnification of Indemnitee for any Liability or Expenses incurred in a Proceeding in which a judgment or other final adjudication establishes that Indemnitee’s actions or omissions to act were material to the cause of action so adjudicated and constitute:

 

(a)            a violation of criminal law, unless Indemnitee had reasonable cause to believe his or her conduct was lawful or had no reasonable cause to believe his or her conduct was unlawful;

 

(b)            a transaction from which Indemnitee derived an improper personal benefit, including, without limitation, any benefits received through the purchase and sale by Indemnitee of securities of the Corporation within the meaning of Section 16(b) of the Securities Exchange Act of 1934, as amended, or similar provisions of state statutory law or common law; or

 

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(c)            willful misconduct or a conscious disregard for the best interests of the Corporation in a Proceeding by or in the right of the Corporation to procure a judgment in its favor or in a Proceeding by or in the right of a stockholder of the Corporation.

 

8.            Exclusive Forum. The Corporation and Indemnitee acknowledge and agree that the sole and exclusive forum for any cause of action brought by the Corporation or Indemnitee arising under this Agreement shall be the United States District Court for the District of Delaware, if a basis for federal court jurisdiction is present, or otherwise, at the Delaware Court of Chancery, and the Corporation and Indemnitee each hereby submit to the personal jurisdiction of such court(s).

 

9.            Vested Rights; Specific Performance. No amendment to the Certificate of Incorporation or Bylaws of the Corporation or any other corporate action shall in any way limit Indemnitee’s rights under this Agreement. In any Proceeding brought by or on behalf of Indemnitee to specifically enforce the provisions of this Agreement, the Corporation waives the claim or defense in that Proceeding that the plaintiff or claimant has an adequate remedy at law, and the Corporation shall not urge in any such Proceeding the claim or defense that an adequate remedy at law exists. The provisions of this Section 9, however, shall not prevent Indemnitee from seeking a remedy at law in connection with any breach of this Agreement.

 

10.            Liability Insurance. To the extent the Corporation maintains an insurance policy or policies providing directors’ or officers’ liability insurance, Indemnitee shall be covered by that policy or those policies, in accordance with its or their terms, to the maximum extent of the coverage provided under that policy or those policies in effect for any other Director or Officer of the Corporation, as the case may be.

 

11.            Witness Fees. Notwithstanding any other provision in this Agreement, to the extent that Indemnitee is made a witness in any Proceeding to which Indemnitee is not a party, because he or she is or was a Director or Officer, the Corporation shall indemnify and hold harmless Indemnitee against all Expenses actually and reasonably incurred by Indemnitee or on Indemnitee’s behalf in connection therewith.

 

12.            Security for Indemnification Obligations. The Corporation may at any time and in any manner, at the discretion of the Board, secure the Corporation’s obligations to indemnify or advance Expenses to Indemnitee pursuant to this Agreement.

 

13.            Non-exclusivity, No Duplication of Payments. The rights of Indemnitee under this Agreement shall be in addition to any other rights with respect to indemnification, advancement of Expenses or otherwise that Indemnitee may have under the Certificate of Incorporation or Bylaws, the Delaware General Corporation Law or otherwise; provided, however, that the Corporation shall not be liable under this Agreement to make any payment to Indemnitee under this Agreement to the extent Indemnitee has otherwise actually received payment (under any insurance policy, provision of the Certificate of Incorporation or Bylaws, or otherwise) of the amounts otherwise payable under this Agreement. The Corporation’s obligation to indemnify or advance expenses under this Agreement to Indemnitee who is or was serving at the request of the Corporation as a director, officer, partner, trustee, employee or agent of any other entity shall be reduced by any amount Indemnitee has actually received as indemnification or advancement of expenses from that other entity.

 

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14.            Amendments. To the extent that the provisions of this Agreement are held to be inconsistent with the provisions of the Delaware General Corporation Law, the provisions of that statute shall govern. To the extent that the Delaware General Corporation Law is later amended to permit a Delaware corporation, without the need for stockholder approval, to provide to its directors greater rights to indemnification or advancement of Expenses than those specifically set forth here, this Agreement shall be deemed amended to require the greater indemnification or more liberal advancement of Expenses to Indemnitee, in each case consistent with the Delaware General Corporation Law as so amended from time to time. Otherwise, no supplement, modification or amendment of this Agreement shall be binding unless executed in writing by the Corporation and Indemnitee.

  

15.            Subrogation. In the event of payment under this Agreement, the Corporation shall be subrogated to the extent of that payment to all of the rights of recovery of Indemnitee, who shall execute all papers required and shall do everything that may be necessary to secure those rights, including the execution of documents necessary to enable the Corporation effectively to bring suit to enforce those rights; provided, however, that any rights of recovery of Indemnitee pursuant to any liability insurance policy separately paid for by Indemnitee shall not be subject to subrogation under this Section 15 except that any amounts recovered under such policy shall be subject to Section 13 hereof.

 

16.            Waiver. No waiver of any of the provisions of this Agreement shall be deemed or shall constitute a waiver of any other provisions of this Agreement (whether or not similar) nor shall such a waiver constitute a continuing waiver.

 

17.            Binding Effect, Etc. This Agreement shall be binding on and inure to the benefit of and be enforceable by the parties to this Agreement and their respective successors or assigns (including any direct or indirect successor or assign by purchase, merger, consolidation or otherwise to all or substantially all of the business and/or assets of the Corporation), spouses, heirs, and personal and legal representatives.

 

18.            Applicability of Agreement. This Agreement shall apply retroactively with respect to acts or omissions of Indemnitee occurring since the date that Indemnitee first became a Director or Officer, and this Agreement shall continue in effect regardless of whether Indemnitee continues to serve as a Director or Officer, but only in respect of acts or omissions occurring prior to the termination of Indemnitee’s service as a Director or Officer.

 

19.            Severability. If any provision or provisions of this Agreement shall be held to be invalid, illegal, or unenforceable for any reason whatsoever:

 

(a)            the validity, legality, and enforceability of the remaining provisions of this Agreement (including without limitation, each portion of any Section of this Agreement containing any such provision held to be invalid, illegal, or unenforceable, that is not itself invalid, illegal, or unenforceable) shall not in any way be affected or impaired by it;

 

(b)            the provision or provisions shall be deemed reformed to the extent necessary to conform to applicable law and to give the maximum effect to the intent of the parties to this Agreement; and

 

(c)            to the fullest extent possible, the provisions of this Agreement (including, without limitation, each portion of any Section of this Agreement containing any provision held to be invalid, illegal, or unenforceable, that is not itself invalid, illegal, or unenforceable) shall be construed so as to give effect to the intent manifested by it.

 

20.            Governing Law. This Agreement shall be governed by and construed and enforced in accordance with the laws of the State of Delaware applicable to contracts made and to be performed in Delaware without giving effect to the principles of conflicts of laws.

 

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21.            Headings. The headings of the Sections of this Agreement are inserted for convenience only and shall not be deemed to constitute part of this Agreement or to affect the construction of this Agreement.

 

22.            Inducement. The Corporation expressly confirms and agrees that it has entered into this Agreement and assumed the obligations imposed on it under this Agreement in order to induce Indemnitee to serve or continue to serve as a Director and/or Officer, and the Corporation acknowledges that Indemnitee is relying on this Agreement in serving as a director, officer, employee or agent of the Corporation or, at the request of the Corporation, as a director, officer, partner, trustee, employee, or agent of another foreign or domestic corporation, partnership, limited liability company, joint venture, trust, employee benefit plan or other entity.

 

23.            Notice by Indemnitee. Indemnitee agrees promptly to notify the Corporation in writing upon being served with any summons, citation, subpoena, complaint, indictment, information, or other document relating to any Proceeding or matter which may be subject to indemnification or advancement of Expenses covered under this Agreement. The failure of Indemnitee so to notify the Corporation shall not relieve the Corporation of any obligation that it may have to Indemnitee under this Agreement or otherwise.

 

24.            Notices. All notices, requests, demands, and other communications under this Agreement shall be in writing and shall be deemed to have been duly given if: (i) delivered by hand and receipted for by the party to whom the notice or other communication shall have been directed; or (ii) mailed by certified or registered mail with postage prepaid, on the third business day after the date on which it is so mailed if to the Corporation, to the principal office address of the Corporation, or if to Indemnitee, to the address of Indemnitee last on file with the Corporation, or to any other address that may have been furnished to Indemnitee by the Corporation or to the Corporation by Indemnitee, as the case may be.

 

[Signature page follows.]

 

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The parties hereto have entered into this Agreement effective as of the date first above written.

 

  The Corporation:
   
  LIQUIDIA CORPORATION
   
   

  By:  
  Name:
  Title:
   
   

  Indemnitee:
   
   
   
  [____________________]
   
  Address:                                                               
                                                                               

 

[Signature Page to Liquidia Corporation Indemnification Agreement]

 

     

 

 

Exhibit 99.1

 

 

 

Liquidia Technologies, Inc.

419 Davis Drive, Suite 100

Morrisville, NC 27560

 

MEDIA RELEASE

www.liquidia.com

 

Liquidia Closes Acquisition of RareGen

 

Merger Reinforces Company’s Commitment to Patients with PAH

 

Paul Manning and Roger Jeffs Join Liquidia Corporation Board of Directors

 

RESEARCH TRIANGLE PARK, N.C., November 18, 2020 - Liquidia Technologies, Inc. (NASDAQ: LQDA), a late-stage clinical biopharmaceutical company focused on the development and commercialization of novel products using its proprietary PRINT® technology, today announced that it has closed the previously announced acquisition of RareGen, LLC, reinforcing its commitment to patients and the pulmonary arterial hypertension (PAH) community.

 

“We are very pleased to have achieved this important milestone, one that we believe significantly strengthens our position through an enriched understanding of and presence in the PAH market to better serve patients with PAH throughout their continuum of care,” said Neal Fowler, Chief Executive Officer of Liquidia. “We welcome the RareGen team to the Liquidia family and firmly believe that, together, we will achieve our goal of improving patients’ lives by advancing much needed treatment options, including LIQ861, if approved, to the PAH community. Through this merger, we believe we are well poised to deliver long-term benefits to patients and value for our stockholders.”

 

On June 29, 2020, Liquidia announced it had entered into a definitive agreement to acquire RareGen through an all-stock merger. On November 18, 2020, Liquidia acquired 100 percent ownership of RareGen for 5,550,000 shares of Liquidia Corporation common stock. Under the terms of the merger agreement, an aggregate of 616,666 shares of additional Liquidia Corporation common stock were withheld from RareGen members to secure their indemnification obligations described therein. Further, under the terms of the merger agreement, RareGen members are also entitled to receive up to 2,708,333 shares of additional Liquidia Corporation common stock if certain RareGen net sales thresholds are met in 2021 pursuant to RareGen’s promotion agreement with Sandoz Inc.

 

With the close of the merger transaction, Liquidia and RareGen have become wholly owned operating subsidiaries of Liquidia Corporation, which is expected to trade on the Nasdaq Capital Market under the ticker symbol “LQDA” on November 19, 2020 as the successor to Liquidia Technologies. Under the terms of the merger agreement, Liquidia Technologies stockholders will receive an identical number of shares of Liquidia Corporation common stock in exchange for their Liquidia Technologies common stock.

 

 

 

 

 

 

Liquidia Technologies, Inc.

419 Davis Drive, Suite 100

Morrisville, NC 27560

 

MEDIA RELEASE

www.liquidia.com

 

As part of the completed transaction, former RareGen board members Paul B. Manning, of PBM Capital Group, a successful entrepreneur, accomplished investor and beneficial owner of a majority of RareGen’s equity, and Roger A. Jeffs, Ph.D., former President and Co-CEO of United Therapeutics, have been appointed to the Liquidia Corporation Board of Directors. Of the 5,550,000 shares of Liquidia Corporation common stock acquired by RareGen owners in the merger, approximately ninety-six percent of the shares are beneficially held by Messrs. Manning and Jeffs, which are subject to a six-month lock-up per the merger agreement. Concurrent with these appointments and the close of the merger transaction, Dr. Ralph Snyderman retired from the board, resulting in an increased size of the board from eight to nine directors.

 

Neal Fowler continued, “As we emerge from this transaction as a fully integrated business with a commercially available product for PAH and LIQ861 on the horizon, pending FDA approval, I and the board believe that the breadth of investment and therapeutic area expertise that Paul and Roger bring further complement the Liquidia Board of Directors and positions the company well for future growth.”

 

Neal Fowler added, “As we look to the future, it is incredibly important to remember those who helped Liquidia arrive at where we are today, especially Ralph Snyderman. Ralph’s many contributions have been instrumental in laying the foundation for our success and his longstanding commitment to our mission has made us a better company today. On behalf of myself and the board, we thank Ralph for his leadership and contributions to the company.”

 

Jefferies LLC acted as exclusive financial advisor, and DLA Piper LLP (US) acted as legal counsel, to Liquidia in connection with the transaction.

 

About the Merger Transaction

On November 18, 2020 (the “Closing Date”), Liquidia Technologies, Inc., a Delaware corporation (“Liquidia Technologies”), completed the previously announced acquisition contemplated by the Agreement and Plan of Merger, dated as of June 29, 2019, as amended by a Limited Waiver and Modification to the Merger Agreement, dated as of August 3, 2020 (the “Merger Agreement”), by and among Liquidia Technologies, Liquidia Corporation (“Liquidia Corporation”), RareGen, LLC, a Delaware limited liability company (“RareGen”), Gemini Merger Sub I, Inc., a Delaware corporation (“Liquidia Merger Sub”), Gemini Merger Sub II, LLC, a Delaware limited liability company (“RareGen Merger Sub”), and PBM RG Holdings, LLC, a Delaware limited liability company, as Members’ Representative. Pursuant to the Merger Agreement, Liquidia Merger Sub, a wholly owned subsidiary of Liquidia Corporation, merged with and into Liquidia Technologies (the “Liquidia Technologies Merger”), and RareGen Merger Sub, a wholly owned subsidiary of Liquidia Corporation, merged with and into RareGen (the “RareGen Merger” and, together with the Liquidia Technologies Merger, the “Merger Transaction”). Upon consummation of the Merger Transaction, the separate corporate existences of Liquidia Merger Sub and RareGen Merger Sub ceased and Liquidia Technologies and RareGen continue as wholly owned subsidiaries of Liquidia Corporation.

 

 

 

 

 

 

Liquidia Technologies, Inc.

419 Davis Drive, Suite 100

Morrisville, NC 27560

 

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www.liquidia.com

 

About Liquidia
Liquidia is a late-stage clinical biopharmaceutical company focused on the development and commercialization of novel products using its proprietary PRINT® technology to transform the lives of patients. PRINT is a particle engineering platform that enables precise production of uniform drug particles designed to improve the safety, efficacy and performance of a wide range of therapies. Currently, Liquidia is focused on the development of two product candidates for which it holds worldwide commercial rights: LIQ861 for the treatment of pulmonary arterial hypertension (PAH); and LIQ865 for the treatment of local post-operative pain. Liquidia is headquartered in Research Triangle Park, NC. For more information, please visit www.liquidia.com.

 

About RareGen
RareGen provides commercialization for rare disease pharmaceutical products, such as generic Remodulin® (treprostinil) for pulmonary arterial hypertension (PAH), with a national sales force focused on cardiology and pulmonology specialties.

 

 

 

 

 

 

Liquidia Technologies, Inc.

419 Davis Drive, Suite 100

Morrisville, NC 27560

 

MEDIA RELEASE

www.liquidia.com

 

Cautionary Statements Regarding Forward Looking Statements 
This communication contains “forward-looking statements” within the meaning of the federal securities laws, including Section 27A of the Securities Act of 1933, as amended (the “Securities Act”), and Section 21E of the Securities Exchange Act of 1934, as amended. In this context, forward-looking statements often address expected future business and financial performance and financial condition, and often contain words such as “expect,” “anticipate,” “intend,” “plan,” “believe,” “seek,” “see,” “will,” “would,” “target,” similar expressions, and variations or negatives of these words. Forward-looking statements by their nature address matters that are, to different degrees, uncertain, such as statements about the timing related to the merger transaction or the anticipated benefits thereof, including, without limitation, future financial and operating results. The Company cautions readers that these and other forward-looking statements are not guarantees of future results and are subject to risks, uncertainties and assumptions that could cause actual results to differ materially from those expressed in any forward-looking statements. Important risk factors that may cause such a difference include, but are not limited to risks and uncertainties related to (i) the ability of Liquidia and RareGen to integrate their businesses successfully and to achieve anticipated cost savings and other synergies, (ii) the possibility that other anticipated benefits of the completed merger transaction will not be realized, including without limitation, anticipated revenues, expenses, earnings and other financial results, and growth and expansion of the new combined company’s operations, and the anticipated tax treatment, (iii) potential litigation relating to the completed merger transaction that has and could be instituted against Liquidia, RareGen or their respective officers or directors, (iv) possible disruptions from the completed merger transaction that could harm Liquidia’s or RareGen’s business, including current plans and operations, (v) the ability of Liquidia or RareGen to retain, attract and hire key personnel, (vi) potential adverse reactions or changes to relationships with employees, customers, suppliers, licensees, collaborators, business partners or other parties resulting from the completion of the merger transaction, (vii) continued availability of capital and financing and rating agency actions, (viii) legislative, regulatory and economic developments and (ix) unpredictability and severity of catastrophic events, including, but not limited to, global pandemics such as coronavirus, acts of terrorism or outbreak of war or hostilities, as well as management’s response to any of the aforementioned factors. These risks, as well as other risks associated with the completed merger transaction, are more fully discussed in the proxy statement/prospectus in connection with the completed merger transaction, which was declared effective on September 16, 2020, as subsequently supplemented. While the list of factors presented here is, and the list of factors to be presented in the registration statement on Form S-4 are, considered representative, no such list should be considered to be a complete statement of all potential risks and uncertainties. Unlisted factors may present significant additional obstacles to the realization of forward-looking statements. Consequences of material differences in results as compared with those anticipated in the forward-looking statements could include, among other things, business disruption, operational problems, financial loss, legal liability to third parties and similar risks, any of which could have a material adverse effect on Liquidia’s or RareGen’s consolidated financial condition, results of operations, credit rating or liquidity. Neither Liquidia nor RareGen assumes any obligation to provide revisions or updates to any forward-looking statements, whether as a result of new information, future developments or otherwise, should circumstances change, except as otherwise required by securities and other applicable laws.

 

Contact Information

 

Media:
Michael Parks
Corporate Communications
484.356.7105
michael.parks@liquidia.com

 

 

 

 

 

 

Liquidia Technologies, Inc.

419 Davis Drive, Suite 100

Morrisville, NC 27560

 

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www.liquidia.com

 

Investors:
Jason Adair
Vice President, Corporate Development and Strategy
919.328.4400
jason.adair@liquidia.com

 

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