Exhibit (a)(1)(E)
This announcement is neither an offer to purchase
nor a solicitation of an offer to sell Shares (as defined below). The Offer (as defined below) is made only by the Offer to Purchase,
dated October 25, 2021, the related Letter of Transmittal and other related materials and any amendments, supplements or modifications
thereto, and is being made to all holders of Shares. Purchaser (as defined below) is not aware of any jurisdiction in which the making
of the Offer or the acceptance thereof would be prohibited by securities, “blue sky” or any other law or regulation of such
jurisdiction. If Purchaser becomes aware of any U.S. state in which the making of the Offer or the acceptance of Shares pursuant thereto
would not be in compliance with law or regulation, Purchaser will make a good faith effort to comply with any such law or regulation.
If, after such good faith effort, Purchaser cannot comply with any such law or regulation, the Offer will not be made to (nor will tenders
be accepted from or on behalf of) the holders of Shares in such state. In those jurisdictions where applicable laws or regulations require
the Offer to be made by a licensed broker or dealer, the Offer shall be deemed to be made on behalf of Purchaser by one or more registered
brokers or dealers licensed under the laws of such jurisdiction to be designated by Purchaser.
Notice of Offer to Purchase
All Outstanding Shares of Common Stock
of
Adamas Pharmaceuticals, Inc.
at
$8.10 per share, in cash,
plus two non-transferable and non-tradable
contingent value rights per share,
each of which represents the right to receive
a contingent cash payment of
$0.50 upon the achievement of specified milestones
pursuant to the Offer to Purchase dated October 25, 2021
by
Supernus Reef, Inc.,
a wholly owned subsidiary
of
Supernus Pharmaceuticals, Inc.
Supernus Reef, Inc., a Delaware corporation
(“Purchaser”) and a wholly-owned subsidiary of Supernus Pharmaceuticals, Inc., a Delaware corporation (“Supernus”),
is offering to purchase all of the issued and outstanding shares of common stock, par value $0.001 per share (the “Shares”),
of Adamas Pharmaceuticals, Inc., a Delaware corporation (“Adamas”), in exchange for (a) $8.10 per Share (the “Cash
Amount”), in cash, without interest and less any applicable withholding taxes, plus (b) two non-transferable and non-tradable
contingent value rights (each, a “CVR”), each of which represents the contractual right to receive a contingent payment of
$0.50, in cash, without interest and less any applicable withholding taxes, which amount will become payable, if at all, if specified
milestones are achieved prior to each of December 31, 2024 and December 31, 2025, as applicable (the “Offer Price”),
upon the terms and subject to the conditions set forth in the Offer to Purchase, dated October 25, 2021, and in the related Letter
of Transmittal (which, together with the Offer to Purchase and other related materials, as each may be amended, supplemented or modified
from time to time, collectively constitute the “Offer”). Stockholders of record who tender directly to American Stock Transfer &
Trust Company, LLC (the “Depositary”) will not be obligated to pay brokerage fees or commissions or, except as may be set
forth in the Letter of Transmittal, transfer taxes on the purchase of Shares by Purchaser pursuant to the Offer. Stockholders who hold
their Shares through a broker, dealer, commercial bank, trust company or other nominee should consult such institution as to whether it
charges any service fees or commissions.
Each CVR represents a non-transferable and non-tradable
contractual contingent right to receive a cash payment of $0.50, without interest and less any required withholding taxes (each such amount,
a “Milestone Payment”) in accordance with the terms of a Contingent Value Rights Agreement to be entered into among Supernus,
Purchaser and a rights agent mutually agreeable to Supernus and Adamas (the “CVR Agreement”). One Milestone Payment is payable
(subject to certain terms and conditions) upon the first occurrence of the achievement of aggregate worldwide Net Sales of the Product
(each as defined in the CVR Agreement) in excess of $150,000,000 during any consecutive 12 month period ending on or before December 31,
2024 (“Milestone 2024”). Another Milestone Payment is payable (subject to certain terms and conditions) upon the first occurrence
of the achievement of aggregate worldwide Net Sales of the Product (each as defined in the CVR Agreement) in excess of $225,000,000 during
any consecutive 12 month period ending on or before December 31, 2025 (“Milestone 2025” and, collectively with Milestone
2024, the “Milestones”). Each Milestone may only be achieved once. The maximum amount payable with respect to the two CVRs
issued in respect to each Share is $1.00 in the aggregate.
THE OFFER AND THE WITHDRAWAL RIGHTS WILL EXPIRE
AT ONE MINUTE FOLLOWING 11:59 P.M., EASTERN TIME, ON NOVEMBER 23, 2021, UNLESS THE OFFER IS EXTENDED OR EARLIER TERMINATED.
The Offer is being made pursuant to an Agreement
and Plan of Merger, dated October 10, 2021 (as it may be amended from time to time, the “Merger Agreement”), by and among
Adamas, Supernus and Purchaser. The Merger Agreement provides, among other things, that, following the consummation of the Offer and provided
that there are no legal restraints preventing or prohibiting the Merger, Purchaser will be merged with and into Adamas pursuant to Section 251(h) of
the General Corporation Law of the State of Delaware, as amended (the “DGCL”), with Adamas continuing as the surviving corporation
and becoming a wholly owned subsidiary of Supernus (the “Merger”). In the Merger, each Share will be cancelled and converted
into the right to receive the Offer Price.
The Offer is not subject to a financing condition.
The obligation of Purchaser to accept for payment and pay for Shares validly tendered (and not validly withdrawn) pursuant to the Offer
is subject to the satisfaction of the conditions set forth in Section 15 of the Offer to Purchase (collectively, the “Offer
Conditions”), including the Minimum Condition (as defined below) and the Antitrust Condition (as defined below).
The term “Expiration Date” means November 23,
2021, unless the expiration of the Offer is extended to a subsequent date in accordance with the terms of the Merger Agreement, in which
event the term “Expiration Date” means such subsequent date.
The Board of Directors of Adamas has: (1) determined
that the Merger Agreement, the CVR Agreement and the transactions contemplated thereby, including the Offer and the Merger (the “Transactions”),
are advisable and fair to, and in the best interest of, Adamas and its stockholders, (2) authorized and approved the execution, delivery
and performance by Adamas of the Merger Agreement and the consummation of the Transactions, including, without limitation, the Offer and
the Merger, on the terms and subject to the conditions contained in the Merger Agreement, (3) authorized the Merger to be effected
under Section 251(h) of the DGCL, and (4) resolved to recommend that the holders of the Shares tender their Shares to Purchaser
pursuant to the Offer.
The Merger Agreement contains provisions that
govern the circumstances under which Purchaser is required or permitted to extend the Offer and under which Supernus is required to cause
Purchaser to extend the Offer. Specifically, the Merger Agreement provides that: (i) if, at the scheduled Expiration Date, any Offer
Condition, other than the Minimum Condition, has not been satisfied or waived, Purchaser may extend the Offer for one or more consecutive
increments of up to ten business days each, until such time as such conditions have been satisfied or waived; (ii) Purchaser shall
extend the Offer for any period required by any rule, regulation, interpretation or position of the Securities and Exchange Commission
or the staff thereof or NASDAQ applicable to the Offer; and (iii) Purchaser shall extend the Offer for one or more consecutive increments
of up to ten business days each, until such time as any waiting periods (and any extension thereof) applicable to the consummation of
the Offer under the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended (“HSR Act”), shall have expired or been
terminated; and (iv) if, at the scheduled Expiration Date, each Offer Condition (other than the Minimum Condition and other conditions
that by their nature are to be satisfied at the Expiration Date) shall have been satisfied or waived and the Minimum Condition shall not
have been satisfied, if so requested by Adamas, Purchaser shall extend the Offer for ten business days; provided, however, in no event
shall Purchaser be required to extend the expiration of the Offer for more than 20 business days in the aggregate; and provided further
that Purchaser shall not be required to extend the Offer beyond the earlier to occur of (i) the valid termination of the Merger Agreement
and (ii) the first business day immediately following February 10, 2022.
The “Minimum Condition” means that
there shall have been validly tendered (and not validly withdrawn) prior to the expiration of the Offer that number of Shares that, when
added to any Shares then owned beneficially by Supernus, Purchaser or any other subsidiary of Supernus, would represent a majority of
the Shares outstanding as of the consummation of the Offer.
The “Antitrust Condition” means any
applicable waiting period under the HSR Act applicable to the Transactions shall have either expired or been terminated.
If the Offer is consummated, Purchaser will not
seek the approval of Adamas’ remaining stockholders before effecting the Merger. Supernus, Purchaser and Adamas have elected to
have the Merger Agreement and the Transactions governed by Section 251(h) of the DGCL and agreed that the Merger will be effected
as soon as practicable following the consummation of the Offer. Under Section 251(h) of the DGCL, the consummation of the Merger
does not require a vote or action by written consent of Adamas’ stockholders.
Purchaser expressly reserves the right to waive,
in its sole discretion, in whole or in part, any Offer Condition or modify the terms of the Offer, except that Adamas’s prior written
consent is required for Purchaser to: (i) decrease the Offer Price; (ii) change the form of consideration payable in the Offer;
(iii) decrease the maximum number of Shares sought pursuant to the Offer; (iv) impose conditions or requirements to the Offer
in addition to the conditions set forth in the Merger Agreement; (v) add to the Offer Conditions or modify any Offer Condition in
a manner adverse to the holders of Shares or that could, individually or in the aggregate, reasonably be expected to prevent or delay
the consummation of the Offer or prevent, delay or impair the ability of Supernus or Purchaser to consummate the Offer, the Merger or
the other Transactions; (vi) amend, modify, change or waive the Minimum Condition or the No Legal Prohibition Condition (as defined
in the Offer to Purchase); (vii) amend or modify the terms of the CVR or the CVR Agreement; (viii) terminate the Offer or accelerate, extend or otherwise change the Expiration Date, except as otherwise provided in the Merger
Agreement; or (ix) otherwise make any other change to the terms or conditions of the Offer that is adverse to holders of Shares.
Any extension, delay, termination or amendment
of the Offer will be followed as promptly as practicable by a public announcement thereof, and such announcement in the case of an extension
will be made no later than 9:00 a.m., Eastern Time, on the business day after the previously scheduled Expiration Date.
Purchaser is not providing for guaranteed delivery
procedures. Therefore, Adamas stockholders must allow sufficient time for the necessary tender procedures to be completed during normal
business hours of The Depository Trust Company (“DTC”), which is earlier than one minute following 11:59 p.m., Eastern Time,
on the Expiration Date. In addition, for Adamas stockholders who are registered holders, the Letter of Transmittal, properly completed
and duly executed, together with any required signature guarantees and any other documents required by the Letter of Transmittal (or in
the case of a book-entry transfer, an Agent’s Message (as defined in the Offer to Purchase) in lieu of the Letter of Transmittal
and such other documents) must be received by the Depositary prior to one minute following 11:59 p.m., Eastern Time, on the Expiration
Date.
For purposes of the Offer, Purchaser will be deemed
to have accepted for payment, and thereby purchased, Shares validly tendered and not validly withdrawn as, if and when it gives oral or
written notice to the Depositary of its acceptance for payment of such Shares pursuant to the Offer. Upon the terms and subject to the
conditions of the Offer, payment for Shares accepted for payment pursuant to the Offer will be made by deposit of the Cash Amount for
such Shares with the Depositary, which will act as agent for tendering stockholders for the purpose of receiving payments in respect of
the Cash Amount from Supernus and Purchaser and transmitting such payments to tendering stockholders whose Shares have been accepted for
payment. Neither Purchaser nor Supernus will be required to deposit any funds related to the CVRs with the rights agent unless and until
such deposit is required pursuant to the terms of the CVR Agreement. Under no circumstances will Supernus or Purchaser pay interest
on the Offer Price for Shares accepted for payment in the Offer, regardless of any extension of the Offer or any delay in making such
payment.
In all cases, Purchaser will pay for Shares validly
tendered and accepted for payment pursuant to the Offer only after timely receipt by the Depositary of (i) the certificates evidencing
such Shares (the “Share Certificates”) or timely confirmation of a book-entry transfer of such Shares into the Depositary’s
account at DTC pursuant to the procedures set forth in Section 3 of the Offer to Purchase, (ii) the Letter of Transmittal, properly
completed and duly executed, with all required signature guarantees and (iii) any other documents required by the Letter of Transmittal
or, in the case of a book-entry transfer, an Agent’s Message in lieu of the Letter of Transmittal and such other documents.
Shares tendered pursuant to the Offer may be withdrawn
at any time prior to the Expiration Date. Thereafter, tenders are irrevocable, except that if Purchaser has not accepted your Shares for
payment within 60 days of commencement of the Offer, you may withdraw them at any time after December 24, 2021, the 60th day after
commencement of the Offer, until Purchaser accepts your Shares for payment.
For a withdrawal of Shares to be effective, the
Depositary must timely receive a written notice of withdrawal at one of its addresses set forth on the back cover of the Offer to Purchase.
Any notice of withdrawal must specify the name of the person who tendered the Shares to be withdrawn, the number of Shares to be withdrawn
and the names in which the Share Certificates are registered, if different from that of the person who tendered such Shares. The signature(s) on
the notice of withdrawal must be guaranteed by an “eligible institution,” unless such Shares have been tendered for the account
of an “eligible institution.” If Shares have been tendered pursuant to the procedures for book-entry transfer as set forth
in Section 3 of the Offer to Purchase, any notice of withdrawal must specify the name and number of the account at DTC to be credited
with the withdrawn Shares. If Share Certificates representing the Shares to be withdrawn have been delivered or otherwise identified to
the Depositary, then, prior to the physical release of such Share Certificates, the name of the registered owners and the serial numbers
shown on such Share Certificates must also be furnished to the Depositary.
Withdrawals of tenders of Shares may not be rescinded
and any Shares validly withdrawn will be deemed not validly tendered for purposes of the Offer. Withdrawn Shares may, however, be retendered
by following one of the procedures for tendering Shares described in Section 3 of the Offer to Purchase at any time prior to the
scheduled expiration of the Offer.
The information required to be disclosed by paragraph
(d)(1) of Rule 14d-6 of the General Rules and Regulations under the Securities Exchange Act of 1934, as amended, is contained
in the Offer to Purchase and is incorporated herein by reference.
Adamas has provided Purchaser with Adamas’
stockholder list and security position listings for the purpose of disseminating the Offer to Purchase, the related Letter of Transmittal
and related documents to holders of Shares. The Offer to Purchase and related Letter of Transmittal will be mailed to record holders of
Shares whose names appear on Adamas’ stockholder list and will be furnished for subsequent transmittal to beneficial owners of Shares
to brokers, dealers, commercial banks, trust companies and similar persons whose names, or the names of whose nominees, appear on the
stockholder list or, if applicable, who are listed as participants in a clearing agency’s security position listing.
The receipt of cash and CVRs by a U.S. holder
in exchange for Shares pursuant to the Offer or the Merger will be a taxable transaction for U.S. federal income tax purposes. The amount
of gain or loss a U.S. holder recognizes, and the timing and potentially character of a portion of such gain or loss, depends on the U.S.
federal income tax treatment of the CVRs, with respect to which there is a significant amount of uncertainty. The installment method of
reporting any gain attributable to receipt of a CVR generally will not be available with respect to the disposition of Shares pursuant
to the Offer or the Merger because the Shares are traded on an established securities market. Supernus intends to treat a stockholder’s
receipt of a CVR pursuant to the Offer or the Merger for all U.S. federal and applicable state and local income tax purposes as additional
consideration paid for the Shares pursuant to the Offer or the Merger. See Section 5 of the Offer to Purchase for a more detailed
discussion of the U.S. federal income tax treatment of the Offer.
You are urged to consult with your own tax advisor
as to the particular tax consequences to you of the Offer and the Merger in light of your particular circumstances (including the application
and effect of any U.S. federal, state, local or non-U.S. income and other tax laws).
The Offer to Purchase and the related Letter of
Transmittal contain important information. Stockholders should carefully read both documents in their entirety before any decision is
made with respect to the Offer.
Questions or requests for assistance may be directed
to D.F. King & Co., Inc. (the “Information Agent”) at the address and telephone number set forth below. Requests
for copies of the Offer to Purchase and the related Letter of Transmittal may be directed to the Information Agent or to brokers, dealers,
commercial banks or trust companies. Such copies will be furnished promptly at Purchaser’s expense. Purchaser will not pay any fees
or commissions to any broker or dealer or any other person (other than the Information Agent or the Depositary) for soliciting tenders
of Shares pursuant to the Offer.
The Information Agent for the Offer is:
D.F. King & Co., Inc.
48 Wall Street, 22nd Floor
New York, NY 10005
Banks & Brokers May Call: (212)
269-5550
All Others Call Toll-Free: (800) 549-6697
Email: adamas@dfking.com
October 25, 2021
Exhibit (d)(2)
CONTINGENT
VALUE RIGHTS AGREEMENT
THIS
CONTINGENT VALUE RIGHTS AGREEMENT, dated as of [●], 2021 (this “Agreement”), is entered into by and between Supernus
Pharmaceuticals, Inc., a Delaware corporation (“Parent”), and American Stock Transfer & Trust Company, LLC, a New
York limited liability trust company (the “Rights Agent”).
RECITALS
WHEREAS,
Parent, Supernus Reef, Inc., a Delaware corporation and a wholly owned subsidiary of Parent (“Purchaser”), and Adamas
Pharmaceuticals, Inc,, a Delaware corporation (the “Company”), have entered into an Agreement and Plan of Merger dated
as of October 10, 2021 (as it may be amended or supplemented from time to time pursuant to the terms thereof, the “Merger Agreement”),
pursuant to which Purchaser (a) has agreed to commence a tender offer (as it may be extended and amended from time to time as permitted
under the Merger Agreement, the “Offer”) to acquire all of the outstanding shares of the common stock, par value $0.001
per share, of the Company (“Shares”) and (b) following the consummation of the Offer, will merge with and into
the Company (the “Merger”), with the Company surviving the Merger as a wholly owned subsidiary of Parent, in accordance
with Section 251(h) of the DGCL and on the terms and subject to the conditions set forth in the Merger Agreement; and
WHEREAS,
pursuant to the Merger Agreement, (a) in each of the Offer and the Merger, Parent has agreed to provide to the holders of Shares
(other than holders of Excluded Shares and Dissenting Shares) that are outstanding as of immediately prior to the Effective Time and (b) in
the Merger, Parent has agreed to provide to holders of Company Options that have an exercise price per Share that is less than the Cash
Amount and holders of Company RSU Awards, in each case, that are outstanding as of immediately prior to the Effective Time (such Company
Options and the Company RSU Awards, collectively, the “Covered Equity Awards”), in the case of each of clauses (a)
and (b), the right to receive two (2) contingent cash payments, one (1) with respect to Milestone 2024 and one (1) with respect to
Milestone 2025, as hereinafter described.
NOW,
THEREFORE, in consideration of the foregoing and the consummation of the transactions referred to above, Parent and the Rights Agent agree,
for the equal and proportionate benefit of all Holders, as follows:
1.1. Definitions.
Capitalized terms used but not otherwise defined herein shall have the meanings ascribed to them in the Merger Agreement. As used in
this Agreement, the following terms shall have the following meanings:
“Acting Holders”
means, at the time of determination, Holders of at least 10% of the outstanding CVRs as set forth on the CVR Register.
“Assignee”
has the meaning set forth in Section 7.3.
“Change
of Control” means (a) a sale or other disposition of all or substantially all of the assets of Parent on a consolidated
basis (other than to any Subsidiary (direct or indirect) of Parent), (b) a merger or consolidation involving Parent in which Parent
is not the surviving entity, (c) any other transaction involving Parent in which Parent is the surviving or continuing entity but
in which the stockholders of Parent immediately prior to such transaction own less than 50% of Parent’s voting power immediately
after the transaction or (d) any Disposition of Parent’s or its Subsidiaries’ respective rights in and to a Product
to a third-party.
“Covered
Equity Awards” has the meaning set forth in the Recitals.
“Covered
Milestone Payments” has the meaning set forth in Section 2.4(f).
“CVRs”
means the rights of Holders to receive contingent cash payments with respect to Milestone 2024 and Milestone 2025 pursuant to
the Merger Agreement and this Agreement.
“CVR
Register” has the meaning set forth in Section 2.3(b).
“Diligent
Efforts” means, with respect to a particular task or obligation, the efforts required to carry out such task in a good faith,
diligent and sustained manner without undue interruption, pause or delay and expenditure of resources that is consistent with commercially
reasonable practices, in each case which level is at least commensurate with the level of efforts that a pharmaceutical company of comparable
size and resources as those of Parent and its Affiliates would devote to a product, taking into account issues of safety and efficacy,
product profile, the competitiveness of other products in development and in the marketplace, the proprietary position of the Product
(including with respect to patent or regulatory exclusivity), the regulatory structure involved, the profitability of the Product (including
pricing and reimbursement but excluding, in respect of the Product, the obligation to make Milestone Payments under this Agreement),
market potential, and other relevant technical, legal, scientific or medical factors.
“Disposition”
means any, direct or indirect, sale or swap of assets or other rights, merger, reorganization, joint venture, lease, exclusive license
(or another licensing arrangement or arrangements involving Intellectual Property that operate to transfer a substantial portion of the
value of such Intellectual Property) or any other transaction or arrangement or series of related transactions or arrangements entered
into by Parent or any of its Subsidiaries (including the Surviving Corporation) to sell, transfer, convey, lease, exclusively license
(or license pursuant to another licensing arrangement or arrangements involving Intellectual Property that operate to transfer a substantial
portion of the value of such Intellectual Property) or otherwise dispose of its or their respective rights in and to the applicable assets.
“DTC”
means The Depository Trust Company or any successor thereto.
“Event
of Default” has the meaning set forth in Section 6.1.
“Fiscal
Quarter” means a fiscal quarter of any fiscal year.
“Holder”
means a Person in whose name a CVR is registered in the CVR Register at the applicable time.
“ICC”
has the meaning set forth in Section 7.6.
“Milestone
2024” means the first occurrence of the achievement of aggregate worldwide Net Sales of the Product in excess of $150,000,000
during a Rolling Period ending on or before December 31, 2024. For the avoidance of doubt, Milestone 2024 may only be achieved one
time, regardless of the number of times such Milestone 2024 is achieved during the term of this Agreement.
“Milestone
2025” means the first occurrence of the achievement of aggregate worldwide Net Sales of the Product in excess of $225,000,000
during a Rolling Period ending on or before December 31, 2025.
For the avoidance
of doubt, Milestone 2025 may only be achieved one time, regardless of the number of times such Milestone 2025 achieved during the term
of this Agreement.
“Milestones”
means Milestone 2024 and Milestone 2025.
“Milestone
Notice” has the meaning set forth in Section 2.4(a).
“Milestone
Payment” means $0.50 with respect to Milestone 2024 and $0.50 with respect to Milestone 2025.
“Milestone
Payment Amount” means, for a given Holder, the product of (a) the applicable Milestone Payment and (b) the number
of CVRs with respect to such applicable Milestone held by such Holder as reflected on the CVR Register as of the close of business on
the date of the Milestone Notice.
“Net
Sales” means:
(a) the
gross amount invoiced by or on behalf of the relevant Selling Entity for the Product sold to third parties, less the Permitted
Deductions to the extent actually taken or incurred and separately accounted for in the invoice with respect to such sale, all calculated
on an accrual basis, as determined in accordance with the applicable Selling Entity’s usual and customary accounting methods consistent
with the treatment of other branded prescription products commercialized by the applicable Selling Entity, which shall be in accordance
with GAAP as of the applicable time;
(b) in
the case of any sale of the Product between or among the Company, its Affiliates and Sublicensees, for resale, Net Sales shall be calculated
as above only on the value charged or invoiced on the first bona fide arm’s-length sale thereafter to a third party;
(c) for the avoidance of doubt, in the case of any sale of the Product between or among the Company, its Affiliates and Sublicensees
where such Affiliate or Sublicensee is an end-user of, and does not further sell, the Product, Net Sales shall be calculated on the
value charged or invoiced to such Affiliate or Sublicensee;
(d) in
the case of any sale for value other than exclusively for money (but excluding any compassionate use, early access, indigent patient
and patient assistance or discount programs) on bona fide arm’s length terms (which has the effect of reducing the
invoiced amount below what it would have been in the absence of such non-monetary consideration), Net Sales shall be calculated at
the average Net Sales price charged to third parties for cash sales of the Product in the jurisdiction of sale during the relevant reporting
period unless such sales in the jurisdiction during the relevant period were only de minimis cash sales, in which case at the
fair market value as determined by comparable markets;
(e) all
Net Sales shall be computed in Dollars, and where any Net Sales are calculated in a currency other than Dollars, they shall be translated
into Dollars in accordance with GAAP; and
(f) for
clarity, no deductions will be made for sales commissions.
Despite
the foregoing, in the event that (x) Parent or any Subsidiary of Parent (including the Surviving Corporation), directly or indirectly,
by a sale or swap of assets or other rights, merger, reorganization, joint venture, lease, license or any other transaction or arrangement,
sells, transfers, conveys, licenses or otherwise disposes of their respective rights in and to the Product that would generate Net Sales
after the Closing Date and prior to December 31, 2025 and (y) such transaction or arrangement does not constitute a Change of Control,
then the total fair market value of all cash, securities and other property paid or payable, directly or indirectly, by a purchaser to
Parent or its Subsidiaries in connection with such transaction or arrangement shall be included in Net Sales.
“Net
Sales Statement” means a written statement of Parent, certified by the chief financial officer of Parent, setting forth in reasonable
detail the calculation of Net Sales for each Rolling Period that is associated with the potential attainment of a Milestone, which shall
include (a) an itemized calculation of the gross amounts invoiced by the Selling Entities for the Product sold to third parties,
(b) an itemized calculation of the Permitted Deductions, and (c) to the extent that sales for the Product are recorded in currencies
other than United States dollars, the exchange rates used for conversion of such foreign currency into United States dollars. The Net
Sales Statement shall be calculated in accordance with GAAP and shall be derived from the financial statements of Parent.
“Officer’s
Certificate” means a certificate signed by the chief executive officer, president, chief financial officer, any vice president,
the controller, the treasurer or the secretary, in each case of Parent, in his or her capacity as such an officer, and delivered to the
Rights Agent.
“Permitted
Deductions” means:
(a) customary trade, cash and quantity discounts given to customers;
(b) amounts
repaid, reimbursed or credited by reasons of defects, recalls, withdrawals, returns, rebates or allowances of goods or because of retroactive
price reductions or billing corrections specifically identifiable to the Product;
(c) chargebacks,
discounts, co-payment assistance programs for patients with commercial insurance, credits, rebates (or the equivalent thereof) and
other amounts paid on sale of the Product, including such payments mandated by programs of a Governmental Body;
(d) government-mandated
rebates, credits and adjustments paid or deducted; and
(e) reasonable, customary and separately itemized and invoiced freight, shipping, insurance and other transportation expenses, if borne
by the applicable Selling Entity without reimbursement from any third party.
“Permitted
Transfer” means a transfer of CVRs (a) upon death of a Holder by will or intestacy; (b) pursuant to a court order;
(c) by operation of law (including by consolidation or merger) or without consideration in connection with the dissolution, liquidation
or termination of any corporation, limited liability company, partnership or other entity; (d) in the case of CVRs held in book-entry
or other similar nominee form, from a nominee to a beneficial owner and, if applicable, through an intermediary, as allowable by DTC;
(e) if the Holder is a partnership or limited liability company, a distribution by the transferring partnership or limited liability
company to its partners or members, as applicable; or (f) as provided in Section 2.6.
“Product”
means (a) GOCOVRI (amantadine), (b) any pharmaceutical preparation sold under NDA No. 208944 (or its foreign equivalents),
and (c) any pharmaceutical preparation sold under an approval that references or relies in whole or in part on the clinical data
submitted in support of NDA No. 208944 (or its foreign equivalents), except that “Product” shall not include
any pharmaceutical preparation approved pursuant to 21 U.S.C. § 355(j) in reliance in whole or in part on NDA No. 208944
(or through reference to the clinical data submitted in support of NDA No. 208944) unless such pharmaceutical preparation is
licensed, manufactured or authorized by any Selling Entity, or purchased through a supply chain or sold through a distribution chain
that includes any Selling Entity.
“Rights
Agent” means the Rights Agent named in the preamble of this Agreement, until a successor Rights Agent becomes such pursuant
to the applicable provisions of this Agreement, and thereafter “Rights Agent” shall mean such successor Rights Agent.
“Rolling
Period” means, as of the date that is one (1) day after the end of the applicable Fiscal Quarter, the four Fiscal Quarters immediately
preceding such date.
“Selling
Entity” means Parent, any Assignee, and each of their controlled Affiliates (including, from and after the Effective Time, the
Company) and Sublicensees.
“Sublicensee”
shall mean an authorized or permitted licensee or sublicensee of rights to the Product.
1.2. Rules of Construction. For purposes of this Agreement, the parties hereto agree that: (a) whenever the context requires,
the singular number shall include the plural, and vice versa; (b) the masculine gender shall include the feminine and neuter genders;
the feminine gender shall include the masculine and neuter genders; and the neuter gender shall include masculine and feminine genders;
(c) the word “extent” in the phrase “to the extent” means the degree to which a subject or other thing extends,
and does not simply mean “if”; (d) the words “include” and “including,” and variations thereof,
shall not be deemed to be terms of limitation, but rather shall be deemed to be followed by the words “without limitation;”
(e) the meaning assigned to each capitalized term defined and used in this Agreement is equally applicable to both the singular and
the plural forms of such term, and words denoting any gender include all genders; (f) where a word or phrase is defined in this Agreement,
each of its other grammatical forms has a corresponding meaning unless the context otherwise requires; (g) a reference to any specific
Law or to any provision of any Law includes any amendment to, and any modification, re-enactment or successor thereof, any legislative
provision substituted therefor and all rules, regulations and statutory instruments issued thereunder or pursuant thereto; (h) references
to any agreement or Contract are to that agreement or Contract as amended, modified or supplemented; (i) they have been represented
by legal counsel during the negotiation and execution and delivery of this Agreement and therefore waive the application of any Law, holding
or rule of construction providing that ambiguities in an agreement or other document will be construed against the party drafting such
agreement or document; and (j) the word “or” shall not be exclusive (i.e., “or” shall be deemed to
mean “and/or”) unless the subjects of the conjunction are mutually exclusive. The headings contained in this Agreement are
for convenience of reference only, shall not be deemed to be a part of this Agreement and shall not be referred to in connection with
the construction or interpretation of this Agreement. All references to “Dollars” or “$” are to United States
Dollars, unless expressly stated otherwise.
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2.
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CONTINGENT VALUE RIGHTS
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2.1. CVRs.
The CVRs represent the contractual rights of Holders to receive contingent cash payments pursuant to the Merger Agreement and this Agreement.
The initial Holders shall be determined pursuant to the terms of the Merger Agreement and this Agreement, and a list of the initial Holders
shall be furnished to the Rights Agent by or on behalf of Parent in accordance with Section 4.1 hereof.
2.2. Non-transferable.
The CVRs may not be sold, assigned, transferred, pledged, encumbered or in any other manner transferred or disposed of, in whole or in
part, other than through a Permitted Transfer. Any such sale, assignment, transfer, pledge, encumbrance
or disposition of a CVR that is not a Permitted Transfer shall be null and void.
2.3. No Certificate; Registration; Registration of Transfer; Change of Address.
(a) The
CVRs shall not be evidenced by a certificate or other instrument.
(b) The
Rights Agent shall keep a register (the “CVR Register”) for the purpose of identifying the Holders of CVRs, registering
CVRs and Permitted Transfers of CVRs as herein provided. The CVR Register will initially show one position for Cede & Co. representing
all of the CVRs that are issued to the holders of Shares held by DTC on behalf of the street holders of the Shares tendered by such holders
in the Offer or held by such holders as of immediately prior to the Effective Time. The Rights Agent will have no responsibility whatsoever
directly to the street name holders or DTC participants with respect to transfers of CVRs. With respect to any payments to be made under
Section 2.4, the Rights Agent will accomplish the payment to any former street name holders of the Shares by sending a lump payment
to DTC. The Rights Agent will have no responsibilities whatsoever with regard to the distribution of payments by DTC to such street name
holders. In the case of CVRs to be received by the holders of Covered Equity Awards pursuant to the Merger Agreement, such CVRs shall
initially be registered in the name and address of the holder of such Covered Equity Awards as set forth in the records of the Company
at the Effective Time and in a denomination equal to the number of shares of Company Common Stock subject to such Covered Equity Awards
cancelled in connection with the Merger.
(c) Subject to the restrictions on transferability set forth in Section 2.2, every request made to transfer the CVRs must be
in writing and accompanied by a written instrument of transfer and other documentation reasonably requested by the Rights Agent in form
reasonably satisfactory to the Rights Agent pursuant to its guidelines, duly executed by the Holder thereof, the Holder’s attorney
duly authorized in writing, the Holder’s personal representative or the Holder’s survivor, as applicable, and setting forth
in reasonable detail the circumstances relating to the transfer. Upon receipt of such written notice, the Rights Agent shall, subject
to its reasonable determination that the transfer instrument is in proper form and the transfer otherwise complies with the other terms
and conditions of this Agreement (including the provisions of Section 2.2), register the transfer of the CVRs in the CVR Register
and notify the Parent of the same. No service charge shall be made for any registration of transfer of a CVR, but Parent and the Rights
Agent may require payment of a sum sufficient to cover any stamp or other Tax or charge that is imposed in connection with any such registration
of transfer. The Rights Agent shall have no duty or obligation to take any action under any section of this Agreement that requires the
payment of applicable Taxes or charges unless and until the Rights Agent is satisfied that all such Taxes or charges have been paid. All
duly transferred CVRs registered in the CVR Register shall be the valid obligations of Parent and shall entitle the transferee to the
same benefits and rights under this Agreement as those held immediately prior to the transfer by the transferor. No transfer of a CVR
shall be valid unless and until registered in the CVR Register.
(d) A
Holder may make a written request to the Rights Agent to change such Holder’s address of record in the CVR Register. The written
request must be duly executed by the Holder. Upon receipt of such written request, the Rights Agent is hereby authorized to, and shall
promptly, record the change of address in the CVR Register.
2.4.
Payment Procedures.
(a) In the event that a Milestone is attained or there is an Event of Default that is subject to Section 6.2, then, in each
case, (x) on a date that is within sixty (60) days following the last day of such Fiscal Quarter in which such Milestone is attained
or (y) solely, in the case Section 6.2, promptly following the Event of Default, Parent shall deliver to the Rights Agent (i) a
written notice (the “Milestone Notice”) indicating which Milestone was attained (or indicating both Milestones were
attained) and an Officer’s Certificate certifying the date of such achievement(s) and (ii) cash, by wire transfer of immediately
available funds to an account specified by the Rights Agent, equal to the aggregate amount necessary to pay the applicable Milestone
Payment Amount to all Holders pursuant to Section 4.2,
along with any letter of instruction reasonably required by the Rights Agent.
(b) The
Rights Agent shall promptly, and in any event within ten (10) Business Days of receipt of a Milestone Notice and cash, by wire transfer
of immediately available funds, equal to the aggregate amount necessary to pay the applicable Milestone Payment Amount to all Holders
pursuant to Section 4.2 as well as any letter of instruction reasonably required by the Rights Agent, send each Holder at
its registered address a copy of such Milestone Notice. If a Milestone Payment is payable to the Holders, then at the time the Rights
Agent sends a copy of the Milestone Notice to the Holders, the Rights Agent shall also pay the Milestone Payment Amount to each of the
Holders in accordance with the corresponding letter of instruction (i) by check mailed to the address of such Holder reflected in
the CVR Register as of 5:00 p.m. Eastern Time on the date of the Milestone Notice or (ii) with
respect to any such Holder that is due an amount in excess of $100,000 in the aggregate who has provided the Rights Agent wiring instructions
in writing as of the close of business on the date of the Milestone Notice, by wire transfer of immediately available funds to the account
specified on such instructions.
(c) Parent
shall be entitled to deduct or withhold, or cause the Rights Agent to deduct or withhold, from any payments made pursuant to this Agreement
such amounts as are required to be deducted or withheld therefrom under the Code, the U.S. Treasury Regulations thereunder, or any other
applicable Tax Law, as may be determined by Parent and communicated to the Rights Agent in writing. Prior to making any such Tax withholdings
or causing any such Tax withholdings to be made with respect to any Holder (other than ordinary course payroll withholding and reporting
on the Covered Milestone Payments) Parent shall instruct the Rights Agent to solicit from such Holder an IRS Form W-9 or other
applicable Tax form within a reasonable amount of time in order to provide the opportunity for the Holder to provide any necessary Tax
forms (including an IRS Form W-9 or an applicable IRS Form W-8) in order to avoid or reduce such withholding amounts.
To the extent any such amounts are so deducted or withheld, such amounts shall be treated for all purposes under this Agreement and the
Merger Agreement as having been paid to the Holder to whom such amounts would otherwise have been paid, and, to the extent required by
applicable Law, Parent shall deliver (or shall cause the Rights Agent to deliver) to the Holder to whom such amounts would otherwise
have been paid an IRS Form 1099, an IRS Form W-2 or other reasonably acceptable evidence of such withholding. To the extent
such amounts are so deducted or withheld from the Covered Milestone Payments, the Rights Agent shall, as soon as reasonably practicable,
deliver such amounts to Parent for the purposes of remitting such amounts to the IRS. In no event shall the Rights Agent have any duty,
obligation or responsibility for wage or Form W-2 reporting with respect to Milestone Payments (including Covered Milestone
Payments) made to the Holders.
(d) If
any funds delivered to the Rights Agent for payment to Holders as Milestone Payment Amounts remain undistributed to the Holders on the
date that is twelve (12) months after the date of the applicable Milestone Notice, Parent shall be entitled to require the Rights Agent
to deliver to Parent or its designee any funds which had been made available to the Rights Agent in connection with such Milestone Payment
Amounts and not disbursed to the Holders (including, all interest and other income received by the Rights Agent in respect of all funds
made available to it), and, thereafter, such Holders shall be entitled to look to Parent (subject to abandoned property, escheat and
other similar Laws) only as general unsecured creditors thereof with respect to the Milestone Payment Amounts that may be payable.
(e) Neither
Parent, the Rights Agent nor any of their Affiliates shall be liable to any Holder for any Milestone Payment Amounts delivered to a public
official pursuant to any abandoned property, escheat or other similar Laws. If, despite Parent’s and the Rights Agent’s commercially
reasonable efforts to deliver a Milestone Payment Amount to the applicable Holder, such Milestone Payment Amount has not been paid immediately
prior to the date on which such Milestone Payment Amount would otherwise escheat to or become property of any Governmental Body, such
Milestone Payment Amount shall become, to the extent permitted by applicable Laws, the property of Parent or its designee, free and clear
of all claims or interest of any Person previously entitled thereto. In addition to and not in limitation
of any other indemnity obligation herein, Parent agrees to indemnify and hold harmless the Rights Agent with respect to any liability,
penalty, cost or expense the Rights Agent may incur or be subject to in connection with transferring such property to Parent.
(f) Except
to the extent any portion of any Milestone Payment Amount is required to be treated as imputed interest pursuant to applicable Law, the
parties hereto intend to treat (i) the CVRs received with respect to the Shares pursuant to the Merger Agreement for all U.S. federal
and applicable state and local income Tax purposes as additional consideration paid at the Effective Time for the Shares pursuant to
the Merger Agreement, (ii) any Milestone Payment Amounts received in respect of such CVRs as amounts realized on the disposition
of the CVRs with respect to Milestone 2024 or Milestone 2025, as applicable, and (iii) Milestone Payment Amounts paid
in respect of CVRs received with respect to Covered Equity Awards pursuant to the Merger Agreement (the “Covered Milestone Payments”),
for all U.S. federal and applicable state and local income Tax purposes, as wages in the year in which the applicable Milestone Payment
Amount is made. Notwithstanding the foregoing, Parent may, and may cause the Surviving Corporation to, report imputed interest on the
CVRs and Milestone Payment Amounts pursuant to Section 483 of the Code.
2.5.
No Voting, Dividends or Interest; No Equity or Ownership Interest.
(a) The
CVRs shall not have any voting or dividend rights, and interest shall not accrue on any amounts payable on the CVRs to any Holder.
(b) The
CVRs shall not represent any equity or ownership interest in Parent or in any constituent company to the Merger or any of their respective
Subsidiaries or Affiliates.
(c) Neither
Parent and its directors and officers nor Purchaser and its directors and officers will be deemed to have any fiduciary or similar duties
to any Holders by virtue of this Agreement or the CVRs.
2.6.
Ability to Abandon CVR. A Holder may at any time, at such Holder’s option, abandon all of such Holder’s remaining
rights in such Holder’s CVRs by transferring such CVRs to Parent or any of its Affiliates without consideration therefor, which
a Holder may effect via delivery of a written abandonment notice to Parent. Nothing in this Agreement shall prohibit Parent or any of
its Affiliates from offering to acquire or acquiring any CVRs for consideration from the Holders, in private transactions or otherwise,
in its sole discretion. Any CVRs acquired by Parent or any of its Affiliates shall be automatically deemed extinguished and no longer
outstanding for purposes of the definition of Acting Holders and Article 5 and Article 6.
3.1. Certain
Duties and Responsibilities. Prior to the occurrence of an Event of Default, and after the curing or waiving of all such Events of
Default which may have occurred, the Rights Agent shall not have any liability for any actions taken, suffered or omitted to be taken
in connection with this Agreement, except to the extent of its gross negligence, bad faith or willful or intentional misconduct. If an
Event of Default has occurred (which has not been cured or waived), the Rights Agent shall exercise such of the rights and powers vested
in it by this Agreement, and use the same degree of care and skill in their exercise, as a reasonably prudent
person would exercise or use under the circumstances in the conduct of his or her own affairs.
3.2.
Certain Rights of the Rights Agent. The Rights Agent undertakes to perform such duties and only such duties as are specifically
set forth in this Agreement, and no implied covenants or obligations shall be read into this Agreement against the Rights Agent. In addition:
(a) the
Rights Agent may rely and shall be protected and held harmless by Parent in acting or refraining from acting upon any resolution, certificate,
statement, instrument, opinion, report, notice, request, direction, consent, order or other paper or document believed by it in good
faith to be genuine and to have been signed or presented by the proper party or parties;
(b) whenever
the Rights Agent shall deem it desirable that a matter be proved or established prior to taking, suffering or omitting any action hereunder,
the Rights Agent may rely upon an Officer’s Certificate, which certificate shall be full authorization and protection to the Rights
Agent, and the Rights Agent shall, in the absence of gross negligence, bad faith or willful or intentional misconduct on its part, incur
no liability and be held harmless by Parent for or in respect of any action taken, suffered or omitted to be taken by it under the provisions
of this Agreement in reliance upon such certificate;
(c) the
Rights Agent may engage and consult with counsel of its selection and the written advice of such counsel or any opinion of counsel shall
be full and complete authorization and protection and shall be held harmless by Parent in respect of any action taken, suffered or omitted
by it hereunder in good faith and in reliance thereon;
(d) in the event of litigation, the Rights Agent may engage and consult with regulatory experts, drug development experts and other
experts and third parties that it, in its sole and absolute discretion, deems appropriate or necessary to enable it to discharge its duties
hereunder;
(e) the
permissive rights of the Rights Agent to do things enumerated in this Agreement shall not be construed as a duty;
(f) the
Rights Agent shall not be required to give any note or surety in respect of the execution of such powers or otherwise in respect of the
premises;
(g) the
Rights Agent shall not be liable for or by reason of, and shall be held harmless by Parent with respect to any of the statements of fact
or recitals contained in this Agreement or be required to verify the same, but all such statements and recitals are and shall be deemed
to have been made by Parent only;
(h) the
Rights Agent shall have no liability and shall be held harmless by Parent in respect of the validity of this Agreement or the execution
and delivery hereof (except the due execution and delivery hereof by the Rights Agent and the enforceability of this Agreement against
the Rights Agent assuming the due execution and delivery hereof by Parent); nor shall it be responsible for any breach by Parent of any
covenant or condition contained in this Agreement;
(i) Parent
agrees to indemnify the Rights Agent for, and hold the Rights Agent harmless against, any loss, liability, claim, demands, suits or expense
arising out of or in connection with Rights Agent’s duties under this Agreement, including the reasonable out-of-pocket costs and
expenses of defending Rights Agent against any claims, charges, demands, suits or loss, unless such loss has been determined by a court
of competent jurisdiction to be a result of Rights Agent’s gross negligence, bad faith or willful or intentional misconduct;
(j) The
Rights Agent shall not be liable for consequential damages under any provision of this Agreement or for any consequential damages arising
out of any act or failure to act hereunder in the absence of gross negligence, bad faith or willful or intentional misconduct on its
part;
(k) Parent
agrees (i) to pay the fees and expenses of the Rights Agent in connection with this Agreement as set forth in the Fee Proposal dated
October 6, 2021, and (ii) to reimburse the Rights Agent for all Taxes and governmental charges, reasonable out-of-pocket expenses
and other charges of any kind and nature incurred by the Rights Agent in the execution of this Agreement (other than Taxes imposed on
or measured by the Rights Agent’s net income and franchise or similar Taxes imposed on it (in lieu of net income Taxes)). The Rights
Agent shall also be entitled to reimbursement from Parent for all reasonable, documented and necessary out-of-pocket expenses
paid or incurred by it in connection with the administration by the Rights Agent of its duties hereunder; and
(l) No provision of this Agreement shall require the Rights Agent to expend or risk its own funds or otherwise incur any financial
liability in the performance of any of its duties hereunder or in the exercise of its rights if there shall be reasonable grounds for
believing that repayment of such funds or adequate indemnification against such risk or liability is not reasonably assured to it.
3.3.
Resignation and Removal; Appointment of Successor.
(a) The
Rights Agent may resign at any time by giving written notice thereof to Parent specifying a date when such resignation shall take effect,
which notice shall be sent at least sixty (60) days prior to the date so specified but in no event shall such resignation become effective
until a successor Rights Agent has been appointed and accepted such appointment in accordance with Section 3.4. Parent has
the right to remove the Rights Agent at any time by specifying a date when such removal shall take effect but no such removal shall become
effective until a successor Rights Agent has been appointed and accepted such appointment in accordance with Section 3.4.
Notice of such removal shall be given by Parent to the Rights Agent, which notice shall be sent at least sixty (60) days prior to the
date so specified.
(b) If
the Rights Agent provides notice of its intent to resign, is removed or becomes incapable of acting, Parent shall, as soon as is reasonably
practicable, appoint a qualified successor Rights Agent who shall be a stock transfer agent of national reputation or the corporate trust
department of a commercial bank. Notwithstanding the foregoing, if Parent shall fail to make such appointment within a period of sixty
(60) days after giving notice of such removal or after it has received notice in writing (in accordance with the provisions hereof) of
such resignation or incapacity by the resigning or incapacitated Rights Agent, then the incumbent Rights Agent may apply to any court
of competent jurisdiction for the appointment of a new Rights Agent. The successor Rights Agent so appointed shall, forthwith upon its
acceptance of such appointment in accordance with Section 3.4, become the successor Rights Agent.
(c) Parent
shall give notice of each resignation and each removal of a Rights Agent and each appointment of a successor Rights Agent by mailing
written notice of such event by first-class mail to the Holders as their names and addresses appear in the CVR Register. Each notice
shall include the name and address of the successor Rights Agent. If Parent fails to send such notice within ten (10) Business Days after
acceptance of appointment by a successor Rights Agent, the successor Rights Agent shall cause the notice to be mailed at the expense
of Parent. Failure to give any notice provided for in this Section 3.3, however, shall not affect the legality or validity
of the resignation or removal of the Rights Agent or the appointment of the successor Rights Agent, as the case may be.
(d) The Rights Agent will cooperate with Parent and any successor Rights Agent as reasonably requested in connection with the transition
of the duties and responsibilities of the Rights Agent to the successor Rights Agent, including transferring the CVR Register to the
successor Rights Agent.
3.4.
Acceptance of Appointment by Successor. Every successor Rights Agent appointed hereunder shall execute, acknowledge and
deliver to Parent and to the retiring Rights Agent an instrument accepting such appointment and a counterpart of this Agreement, and thereupon
such successor Rights Agent, without any further act, deed or conveyance, shall become vested with all the rights, powers, trusts and
duties of the retiring Rights Agent. On request of Parent or the successor Rights Agent, the retiring Rights Agent shall execute and deliver
an instrument transferring to the successor Rights Agent all the rights, powers, trusts and duties of the retiring Rights Agent.
4.1.
List of Holders. Parent or the Surviving Corporation shall furnish or cause to be furnished to the Rights Agent, in a form
reasonably satisfactory to the Rights Agent, and received from Parent’s Depository Agent in the Offer, Parent’s Paying Agent
in the Merger, and in the case of Holders who held Covered Equity Awards, the Company, the names and addresses of the Holders of such
securities within thirty (30) days after the Effective Time.
4.2.
Payment of Milestone Payments. If a Milestone has been achieved in accordance with this Agreement, Parent shall, promptly
(but in any event no later than five (5) Business Days) following the delivery of the Milestone Notice, deposit with the Rights Agent,
for payment to the Holders in accordance with Section 2.4, the aggregate amount necessary to pay the Milestone Payment Amounts
to all Holders. For the avoidance of doubt, the maximum aggregate potential amount payable under this Agreement shall be (i) $0.50
with respect to Milestone 2024 and (ii) $0.50 with respect to Milestone 2025.
4.3.
Books and Records. Parent shall, and shall cause its subsidiaries to, keep true, complete and accurate records in sufficient
detail to enable the Holders and their consultants or professional advisors to determine the amounts payable hereunder (including books
and records in sufficient detail to enable the calculation of Net Sales in any applicable Rolling Period).
4.4.
Further Assurances. Parent agrees that it will perform, execute, acknowledge and deliver or cause to be performed, executed,
acknowledged and delivered, all such further and other acts, instruments and assurances as may reasonably be required by the Rights Agent
for the carrying out or performing by the Rights Agent of the provisions of this Agreement.
4.5.
Diligent Efforts. Commencing upon the Closing, Parent shall, and shall cause its Affiliates and any Sublicensees to, use
Diligent Efforts to achieve each Milestone; provided, that the use of Diligent Efforts does not guarantee that Parent will achieve any
Milestone. Without limiting the foregoing, neither Parent nor any of its Affiliates shall act in bad faith for the purpose of avoiding
achievement of the Milestone or the payment of the Milestone Payment or Milestone Payment Amounts. As of the date hereof, Parent acknowledges
and agrees that there is no restriction applicable to it pursuant to applicable Law or Contract that would prohibit or materially interfere
with Parent’s Diligent Efforts to achieve each Milestone (any such prohibition or material interface a, “Prohibition”).
However, in the event that a Prohibition arises and the circumstances or facts giving rise to such Prohibition which were known by (or
should have known by) Parent or were reasonably foreseeable, then Parent will be deemed to be in material default of this Section 4.5
(a “Specified Default”).
4.6. Audit
Rights. If a Milestone has not been attained by the expiry of such Milestone, Parent shall deliver to the Rights Agent, on a
date that is within sixty (60) days following the last day of such Fiscal Quarter in which such Milestone expires, a written notice
(the “Expiry Notice”) indicating which Milestone was not attained and an Officer’s Certificate certifying
that such Milestone was not attained and is not payable to the Holders of such CVR. Until December 31, 2027, (i) once
after such time as Milestone 2024 expires and Parent has delivered an Expiry Notice with respect thereto and (ii) once
after such time as Milestone 2025 expires and Parent has delivered an Expiry Notice with respect thereto, upon reasonable
advance written notice from the Acting Holders, Parent shall permit one (1) independent certified public accounting firm of
nationally recognized standing selected by such Acting Holders and reasonably acceptable to Parent (the “Independent
Accountant”) to have access at reasonable times during normal business hours to the books and records of Parent and its
Affiliates as may be reasonably necessary to evaluate and verify Parent’s calculation of Net Sales hereunder, including the
Net Sales Statements; provided that (x) such Acting Holders (and the Independent Accountant) enter into customary
confidentiality agreements reasonably satisfactory to Parent with respect to the confidential information of Parent or its
Affiliates to be furnished pursuant to this Section 4.6 and
(y) such access does not unreasonably interfere with the conduct of the business of Parent or any of its Affiliates. The
Independent Accountant shall provide Parent with a copy of all disclosures made to the Acting Holders. Parent shall not enter into
any transaction constituting a Change of Control unless such agreement contains provisions that would permit such Independent
Accountant with such access to the records of the other party in such Change of Control, if and to the extent as are reasonably
necessary to ensure compliance with this Section 4.6. The audit rights set forth in this Section 4.6 may not
be exercised by the Acting Holders more than twice during the pendency of this Agreement, in accordance with the first sentence of
this Section 4.6.
4.7.
Net Sales Statements. Within sixty (60) days of the end of each Fiscal Quarter, Parent shall have compiled a Net Sales Statement
for the Rolling Period ending on the last day of such Fiscal Quarter. Parent shall keep each such Net Sales Statement in its books and
records.
4.8.
Change of Control. In the event that Parent desires to consummate a Change of Control prior to December 31, 2025, Parent
or the Surviving Corporation, as applicable depending upon the structure of the Change of Control, will cause the Person acquiring Parent
to assume Parent’s and the Surviving Corporation’s (as applicable depending upon the structure of the Change of Control) obligations,
duties and covenants under this Agreement. No later than five (5) Business Days prior to the consummation of any Change of Control, Parent
will deliver to the Rights Agent an Officer’s Certificate, stating that such Change of Control complies with this Section 4.8
and that all conditions precedent herein relating to such transaction have been complied with.
5.1.
Amendments without Consent of Holders.
(a)
Without the consent of any Holders or the Rights Agent, Parent at any time and from time to time, may enter into one or more amendments
hereto, for any of the following purposes:
(i)
to evidence the succession of another Person as a successor Rights Agent and the assumption by any such successor of the covenants
and obligations of the Rights Agent herein;
(ii)
to add to the covenants of Parent such further covenants, restrictions, conditions or provisions as Parent shall consider to be
for the protection of the Holders; provided that, in each case, such provisions do not adversely affect the interests of the Holders;
(iii) to
cure any ambiguity, to correct or supplement any provision herein that may be defective or inconsistent with any other provision
herein or in the Merger Agreement, or to make any other provisions with respect to matters or questions arising under this
Agreement; provided that, in each case, such provisions do not adversely affect the interests of the Holders;
(iv)
as may be necessary or appropriate to ensure that the CVRs are not subject to registration under the Securities Act, the Exchange
Act, any applicable state securities or “blue sky” laws or any laws outside the United States;
(v)
to evidence the assignment of this Agreement by Parent as provided in Section 7.3; or
(vi)
any other amendments hereto for the purpose of adding, eliminating or changing any provisions of this Agreement, unless such addition,
elimination or change is adverse to the interests of the Holders.
(b)
Without the consent of any Holders, Parent and the Rights Agent, at any time and from time to time, may enter into one or more
amendments thereto to reduce the number of CVRs, in the event any Holder agrees to renounce such Holder’s rights under this Agreement
in accordance with Section 7.4 or to transfer CVRs to Parent pursuant to Section 2.6.
(c)
Promptly after the execution by Parent and/or the Rights Agent of any amendment pursuant to the provisions of this Section 5.1,
Parent shall mail (or cause the Rights Agent to mail) a notice thereof by first class mail to the Holders at their addresses as they appear
on the CVR Register, setting forth such amendment.
5.2.
Amendments with Consent of Holders.
(a)
Subject to Section 5.1 (which amendments pursuant to Section 5.1 may be made without the consent of any
Holder), with the consent of the Holders of not less than a majority of the outstanding CVRs as set forth in the CVR Register (the “Majority
Holders”), whether evidenced in writing or taken at a meeting of the Holders, Parent and the Rights Agent may enter into one
or more amendments hereto for the purpose of adding, eliminating or changing any provisions of this Agreement, even if such addition,
elimination or change is materially adverse to the interest of the Holders.
(b)
Promptly after the execution by Parent and the Rights Agent of any amendment pursuant to the provisions of this Section 5.2,
Parent shall mail (or cause the Rights Agent to mail) a notice thereof by first class mail to the Holders at their addresses as they appear
on the CVR Register, setting forth such amendment.
5.3.
Execution of Amendments. Prior to executing any amendment permitted by this Article 5, the Rights Agent shall
be entitled to receive, and shall be fully protected in relying upon, an opinion of counsel selected by Parent stating that the execution
of such amendment is authorized or permitted by this Agreement. The Rights Agent may, but is not obligated to, enter into any such amendment
that affects the Rights Agent’s own rights, powers, trusts or duties under this Agreement or otherwise.
5.4.
Effect of Amendments. Upon the execution of any amendment under this Section 5, this Agreement shall be modified
in accordance therewith, such amendment shall form a part of this Agreement for all purposes and every Holder shall be bound thereby.
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6.
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REMEDIES OF THE HOLDERS
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6.1.
Event of Default. An “Event of Default” with respect to the CVRs, means each one of the following events
which shall have occurred and be continuing (whatever the reason for such Event of Default and whether it shall be voluntary or involuntary
or be effected by operation of Law or pursuant to any judgment, decree or order of any court or any order, rule or regulation of any Governmental
Body):
(a)
default in the payment by Parent pursuant to the terms of this Agreement of all or any part of the Milestone Payment Amount after
a period of ten (10) Business Days after the Milestone Payment Amount shall become due and payable;
(b)
material default in the performance, or breach in any material respect, of any covenant or warranty of Parent hereunder (other
than a default in whose performance or whose breach is elsewhere in this Section 6.1 specifically dealt with), and continuance
of such default or breach for a period of ninety (90) days after a written notice specifying such default or breach and requiring it to
be remedied is given, which written notice states that it is a “Notice of Default” hereunder and is sent by registered or
certified mail to Parent by the Rights Agent or to Parent and the Rights Agent by the Acting Holders; or
(c)
the occurrence of a Specified Default.
Subject
to Section 6.2, if an Event of Default described above occurs and is continuing (and has not been cured or waived), then,
and in each and every such case, (i) the Rights Agent by notice in writing to Parent or (ii) the Rights Agent upon the written
request of the Acting Holders by notice in writing to Parent (and to the Rights Agent if given by the Acting Holders), shall commence
a legal proceeding to protect the rights of the Holders, including to obtain damages or payment for any amounts then due and payable.
The
foregoing provisions of this Section 6.1, however, are subject to the condition that if, at any time after the Rights Agent
shall have commenced such proceeding, and before any award shall have been obtained, Parent shall pay or shall deposit with the Rights
Agent a sum sufficient to pay all amounts which shall have become due and such amount as shall be sufficient to cover reasonable compensation
to the Rights Agent, its agents, attorneys and counsel, and all Events of Default under this Agreement shall have been cured, waived or
otherwise remedied as provided herein, then and in every such case the Acting Holders, by written notice to Parent and to the Rights Agent,
may waive all defaults that are the subject of such proceeding, but no such waiver or rescission and annulment shall extend to or shall
affect any subsequent default.
6.2.
Specified Defaults/Payment Due. In the event an Event of Default set forth in Section 6.1(c) occurs, then each
Milestone that has not been attained shall be, without any further action by any Person, deemed to have been attained for all purposes
under this Agreement.
6.3.
Enforcement. If an Event of Default has occurred, has not been waived and is continuing, the Rights Agent may in its discretion
proceed to protect and enforce the rights vested in it by this Agreement by commencing a legal proceeding in accordance with Section 7.6.
6.4. Limitations
on Suits by Holders. Subject to the last sentence of this Section 6.4, no Holder of any CVR shall have any right
under this Agreement to commence proceedings under or with respect to this Agreement, or for the appointment of a Rights Agent,
receiver, liquidator, custodian or other similar official, for any other remedy hereunder, unless (i) such Holder previously
shall have given to the Rights Agent written notice of default, (ii) the Acting Holders shall have made written request upon
the Rights Agent to commence such proceeding in its own name as Rights Agent hereunder and shall have offered to the Rights Agent
such reasonable indemnity as it may require against the costs, expenses and liabilities to be incurred therein or thereby and
(iii) the Rights Agent for fifteen (15) days after its receipt of such notice, request and offer of indemnity shall have failed
to commence any such proceeding and no direction inconsistent with such written request shall have been given to the Rights Agent
pursuant to Section 6.5. Notwithstanding any other
provision in this Agreement, the right of any Holder of any CVR to receive payment of the amounts that a Milestone Notice indicates
are payable in respect of such CVR on or after the applicable due date, or to commence proceedings for the enforcement of any such
payment on or after such due date, shall not be impaired or affected without the consent of such Holder.
6.5.
Control by Acting Holders. Subject to the last sentence of this Section 6.5, the Acting Holders shall have the
right to direct the time, method and place of conducting any proceeding for any remedy available to the Rights Agent under this Agreement,
or exercising any power conferred on the Rights Agent by this Agreement; provided that such direction shall not be otherwise
than in accordance with Law and the provisions of this Agreement; provided, further that (subject to the provisions
of Section 3.1) the Rights Agent shall have the right to decline to follow any such direction if the Rights Agent, being advised
by counsel, shall determine that the action or proceeding so directed may not lawfully be taken or if the Rights Agent (acting in good
faith through its board of directors, the executive committee, or a committee of directors of the Rights Agent) shall determine that the
action or proceedings so directed would involve the Rights Agent in personal liability or if the Rights Agent in good faith shall so determine
that the actions or forbearances specified in or pursuant to such direction would be unduly prejudicial to the interests of Holders not
joining in the giving of said direction. Nothing in this Agreement shall impair the right of the Rights Agent in its discretion to take
any action deemed proper by the Rights Agent and which is not inconsistent with such direction or directions by the Acting Holders.
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7.
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OTHER PROVISIONS OF GENERAL
APPLICATION
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7.1.
Notices to the Rights Agent and Parent. Any notice or other communication required or permitted to be delivered to Parent
or the Rights Agent under this Agreement shall be in writing and shall be deemed properly delivered, given and received (a) upon
receipt when delivered by hand, (b) two (2) Business Days after being sent by registered mail or by courier or express delivery service,
(c) if sent by email transmission prior to 5:00 p.m. recipient’s local time, upon transmission thereof (provided that no bounceback
or similar “undeliverable” message is received by such sender) or (d) if sent by email transmission after 5:00 p.m. recipient’s
local time, the Business Day following the date of transmission (provided that no bounceback or similar “undeliverable” message
is received by such sender); provided that in each case the notice or other communication is sent to the physical address or email
address, as applicable, set forth beneath the name of such party below (or to such other physical address or email address as such party
shall have specified in a written notice given to the other party):
If to the
Rights Agent:
American
Stock Transfer & Trust Company, LLC
6201 15th
Avenue
Brooklyn,
New York 11219
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Attn:
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Relationship Management
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With a
copy to:
American Stock Transfer & Trust Company, LLC
48 Wall
Street, 22nd Floor
New York,
New York 10005
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Attn:
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Legal Department
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Email:
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legalteamAST@astfinancial.com
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if to Parent:
Supernus Pharmaceuticals,
Inc.
9715 Key West Ave
Rockville MD, 20850
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Attention:
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Jack A. Khattar
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Email:
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jkhattar@supernus.com
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with a copy to (which shall not constitute
notice):
Saul Ewing Arnstein
& Lehr LLP
1919 Pennsylvania Avenue, N.W., Suite 550
Washington, DC 20006-3434
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Attention:
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Mark I. Gruhin
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Facsimile:
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(202) 295-6719
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Email:
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mark.gruhin@saul.com
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The
Rights Agent or Parent may specify a different address, facsimile number or email address by giving notice in accordance with this Section 7.1.
7.2.
Notice to Holders. Where this Agreement provides for notice to Holders, such notice shall be sufficiently given (unless
otherwise herein expressly provided) if in writing and mailed, first-class postage prepaid, to each Holder affected by such event,
at the Holder’s address as it appears in the CVR Register, not later than the latest date, and not earlier than the earliest date,
if any, prescribed for the giving of such notice. In any case where notice to Holders is given by mail, neither the failure to mail such
notice, nor any defect in any notice so mailed, to any particular Holder shall affect the sufficiency of such notice with respect to other
Holders.
7.3. Parent
Successors and Assigns. Parent may assign, in its sole discretion and without the consent of any other Person, any or all of its
rights, interests and obligations hereunder (i) to one or more direct or indirect wholly-owned subsidiaries of Parent,
(ii) to any purchaser, licensee or sublicensee of substantial rights to the Product that is a company in the pharmaceutical
industry or (iii) otherwise with the prior written consent of the Acting Holders, to any other person (each, an
“Assignee”); provided that the Assignee agrees to assume and be bound by all of the terms and conditions
of this Agreement. Any such Assignee may thereafter assign, in its sole discretion and without the consent of any other party, any
or all of its rights, interests and obligations hereunder to one or more additional Assignees which agree to assume and be bound by
all of the terms and conditions of this Agreement; provided, however, that in connection with any assignment to an
Assignee pursuant to clause (i) of the first sentence of this Section 7.3 if the Assignee does not have net assets of at
least $500,000,000 as shown on its most recently prepared financial statements, and clause (ii) of the first sentence of this Section 7.3,
the assignor shall agree to remain liable for the performance by the Assignee of all duties, covenants, agreements and obligations
of Parent hereunder, with such Assignee substituted for Parent under this Agreement. This Agreement will be binding upon, inure to
the benefit of and be enforceable by Parent’s successors and each Assignee. Subject to compliance with the requirements set
forth in this Section 7.3 relating to assignments, this Agreement shall not restrict Parent’s, any
Assignee’s or any of their respective successors’ ability to merge or consolidate with, or sell, issue, license or
dispose of its stock or other equity interests or assets to, any other Person, or spin-off or split-off. Each of Parent’s
successors and each Assignee shall, by a supplemental contingent consideration payment agreement or other acknowledgement executed
and delivered to the Rights Agent, expressly assume the due and punctual payment of the CVRs and the due and punctual performance of
every duty, obligation, agreement and covenant of this Agreement on the part of Parent to be performed or observed by Parent. The
Rights Agent may not assign this Agreement without Parent’s written consent. Any attempted assignment of this Agreement or any
such rights in violation of this Section 7.3 shall be
void and of no effect.
7.4.
No Third Party Beneficiaries. Nothing in this Agreement, express or implied, shall give to any Person (other than Parent’s
successors and Assignees, each of whom is intended to be, and is, a third party beneficiary hereunder; provided that the Holders
shall be considered third party beneficiaries solely to the extent set forth in Article 6) any benefit or any legal or equitable
right, remedy or claim under this Agreement or under any covenant or provision herein contained, all such covenants and provisions being
for the sole benefit of the Rights Agent, Parent, Parent’s successors and Assignees, and the Holders (solely to the extent set forth
in Article 6). The Holders shall have no rights except the contractual rights as are expressly set forth in this Agreement.
Notwithstanding anything to the contrary contained herein, any Holder may at any time agree to renounce, in whole or in part, whether
or not for consideration, such Holder’s rights under this Agreement by written notice to the Rights Agent and Parent, which notice,
if given, shall be irrevocable, and Parent may, in its sole discretion, at any time offer consideration to Holders in exchange for their
agreement to irrevocably renounce their rights, in whole or in part, hereunder. Except for the rights of the Rights Agent set forth herein,
the Acting Holders will have the sole right, on behalf of all Holders, by virtue of or under any provision of this Agreement, to institute
any action or proceeding with respect to this Agreement, and no individual Holder or other group of Holders will be entitled to exercise
such rights. Reasonable expenditures incurred by such Acting Holders in connection with any enforcement action hereunder may be deducted
from any damages or settlement obtained prior to the distribution of any remainder to Holders generally. Acting Holders acting pursuant
to this provision on behalf of all Holders shall have no liability to the other Holders for such actions.
7.5.
Governing Law. This Agreement, the CVRs and all actions arising under or in connection herewith and therewith (whether sounding
in contract, tort or otherwise) shall be governed by and construed in accordance with the laws of the State of Delaware, regardless of
the laws that might otherwise govern under applicable principles of conflicts of laws thereof.
7.6. Jurisdiction,
WAIVER OF JURY TRIAL. In any action or proceeding arising out of or relating to this Agreement or any of the matters
contemplated hereby: (i) each of Parent, the Rights Agent and the Holders irrevocably and unconditionally consents and submits
to the exclusive jurisdiction and venue of the Court of Chancery of the State of Delaware and any state appellate court therefrom
or, if such court lacks subject matter jurisdiction, the United States District Court sitting in New Castle County in the State of
Delaware (it being agreed that the consents to jurisdiction and venue set forth in this Section 7.6 shall not constitute
general consents to service of process in the State of Delaware and shall have no effect for any purpose except as provided in this
paragraph and shall not be deemed to confer rights on any Person other than Parent, the Rights Agent and the Holders); and
(ii) each of Parent, the Rights Agent and the Holders irrevocably consents to service of process by first class certified mail,
return receipt requested, postage prepaid, to the address at which such Party is to receive notice in accordance with Section 7.1
or Section 7.2, as applicable. Each of Parent, the Rights Agent and the Holders hereby irrevocably and unconditionally
waives any objection to the laying of venue of any action, suit or proceeding arising out of this Agreement or the matters
contemplated hereby in the Court of Chancery of the State of Delaware and any state appellate court therefrom or, if such court
lacks subject matter jurisdiction, the United States District Court sitting in New Castle County in the State of Delaware, and
hereby further irrevocably and unconditionally waives and agrees not to plead or claim in any such court that any such action, suit
or proceeding brought in any such court has been brought in an inconvenient forum (including, any claim based on the doctrine of forum
non conveniens or any similar doctrine). Parent, the Rights Agent and the Holders agree that a final judgment in any such action
or proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided
by applicable Laws; provided, however, that nothing in the foregoing shall restrict any Person’s rights to seek
any post-judgment relief regarding, or any appeal from, such final trial court judgment.
EACH
OF THE PARTIES HERETO IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING BETWEEN THE PARTIES (WHETHER BASED
ON CONTRACT, TORT OR OTHERWISE), INCLUDING ANY COUNTERCLAIM, ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED
HEREBY OR THE ACTIONS OF ANY PARTY IN THE NEGOTIATION, ADMINISTRATION, PERFORMANCE AND ENFORCEMENT THEREOF. EACH PARTY HERETO (A) MAKES
THIS WAIVER VOLUNTARILY AND (B) ACKNOWLEDGES THAT SUCH PARTY HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS,
THE MUTUAL WAIVERS CONTAINED IN THIS SECTION 7.6.
7.7.
Severability. In the event that any provision of this Agreement, or the application thereof, becomes or is declared by a
court of competent jurisdiction to be illegal, void or unenforceable, the remainder of this Agreement shall continue in full force and
effect and the application of such provision to other Persons or circumstances shall be interpreted so as reasonably to effect the intent
of the parties. The parties further agree to replace such void or unenforceable provision of this Agreement with a valid and enforceable
provision that will achieve, to the extent possible, the economic, business and other purposes of such void or unenforceable provision.
7.8.
Termination. This Agreement will be terminated and of no force or effect, the parties hereto will have no liability hereunder
(other than with respect to monies due and owing by Parent to the Rights Agent), and no payments will be required to be made, upon the
earliest to occur of (a) the payment by the Rights Agent to each Holder of the Milestone Payment with respect to Milestone 2024
and the Milestone Payment with respect to Milestone 2025, such amounts not to exceed an aggregate value of $1.00 (inclusive of any
payments received with respect to such CVRs by the permitted transferor of each CVR held by such Holder) as reflected on the CVR Register
as of the close of business on the date of the Milestone Notice, (b) the delivery of a written notice of termination duly executed
by Parent and the Majority Holders, and (c) January 1, 2028.
7.9.
Obligation of Parent. Parent shall cause Purchaser, the Surviving Corporation and each Selling Entity that is controlled
by Parent and its Affiliates to duly perform, satisfy and discharge each of the covenants, obligations and liabilities applicable to Purchaser,
the Surviving Corporation or such Selling Entity under this Agreement, and Parent shall be jointly and severally liable with Purchaser
and the Surviving Corporation for the performance and satisfaction of each of said covenants, obligations and liabilities. References
to Purchaser herein apply to the Surviving Corporation from and after the Effective Time.
7.10.
Entire Agreement; Counterparts. This Agreement and the Merger Agreement constitute the entire agreement and supersede all
contemporaneous and prior agreements and understandings, both written and oral, among or between any of the Parties, with respect to the
subject matter hereof and thereof. If and to the extent that any provision of this Agreement is inconsistent or conflicts with the Merger
Agreement, this Agreement govern and be controlling. This Agreement may be executed in counterparts, each of which shall be deemed an
original and all of which shall constitute one and the same instrument. The exchange of a fully executed Agreement (in counterparts or
otherwise) by PDF shall be sufficient to bind the Parties to the terms and conditions of this Agreement.
[REMAINDER
OF PAGE INTENTIONALLY LEFT BLANK]
IN
WITNESS WHEREOF, each of the parties has caused this Agreement to be executed on its behalf by its duly authorized officers as of the
day and year first above written.
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SUPERNUS PHARMACEUTICALS, INC.
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By:
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Name:
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Title:
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AMERICAN STOCK TRANSFER & TRUST COMPANY, LLC
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By:
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Name:
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Title:
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[Signature
Page to Contingent Value Rights Agreement]
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