Exhibit 10.12


 


Certain portions of this Exhibit have been omitted pursuant to a
request for confidentiality.  Such
omitted portions, which are marked with brackets [   ] and an
asterisk*, have been separately filed with the Commission.


RUSH PAYMENTS AGREEMENT


REFERENCE IS MADE to (i) the License Agreement
effective  as of September 26, 2003, by
and between RUSH-PRESBYTERIAN-ST. LUKE’S MEDICAL CENTER, an Illinois
not-for-profit corporation and having its principal office at 1725 W. Harrison
St. Chicago, Ill. 60612 (“Rush”), and ACORDA THERAPEUTICS, INC., a corporation
organized and existing under the laws of the State of Delaware and having its
principal office at 15 Skyline Drive, Hawthorne, New York 10532 (“Acorda”),
including the Side Agreement attached thereto as Exhibit 1.31 by and
among Rush, Acorda and Elan (as defined below) (the “Side Agreement”), a
copy of which is attached as Exhibit A hereto (the “Rush/Acorda
License”); and (ii) the Amended and Restated License Agreement effective as
of September 26, 2003 by and between Acorda and ELAN CORPORATION, PLC., a
public limited company incorporated under the laws of Ireland and having its
registered office at Lincoln House, Lincoln Place, Dublin 2, Ireland (“Elan”)
(the “Elan/Acorda License”). The Rush/Acorda License and the Elan/Acorda
License are sometimes collectively referred to herein as the “Novation
Agreements” and Elan and Acorda are sometimes referred to herein as the
“Parties”.


WHEREAS, in connection with and in consideration of
the Novation Agreements, Acorda and Elan have agreed to enter into this Rush
Payments Agreement with the intention to set forth the respective allocation
between the Parties of certain amounts payable under the Rush/Acorda License
and certain other rights and obligations of the Parties.


NOW THEREFORE, in consideration of the premises and
the mutual covenants hereinafter recited and set forth in the Novation
Agreements and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, and intending to be legally
bound, the Parties agree as follows:


1.             With respect to the US $[**] license fee set forth in
Section 5.1 of the Rush/Acorda License, each of Acorda and Elan shall be
responsible for [**] of such license fee. Accordingly, on the Effective Date,
Elan shall pay Acorda US$[**] as Elan’s [**] share of such payment.


2.             With respect to milestone payments that become payable
under Section 5.2 of the Rush/Acorda License, the following shall be
applicable:


(a)           Each of Acorda and Elan shall be
responsible for [**] of any milestone payments payable to Rush under Section
5.2 (a) or 5.2 (b) of the Rush/Acorda License. Accordingly, if the milestone
events set forth in either Section 5.2 (a) or Section 5.2 (b) of the
Rush/Acorda License are achieved, (x) Acorda shall so advise Elan in writing
upon achievement of the applicable milestone event, and (y) Elan shall pay
Acorda an amount equal to [**] of the applicable milestone payment upon receipt
of such notice as Elan’s share of such payment; and


(b)           Elan shall be responsible for [**] of
any milestone payments payable to Rush under Section 5.2 (c) of the Rush/Acorda
License. Accordingly, if the milestone event set forth in Section 5.2 (c) of
the Rush/Acorda License is achieved, Acorda shall so advise Elan in writing
upon achievement of the applicable milestone event and Elan shall pay Acorda an
amount equal to [**] of the applicable milestone payment upon receipt of such
notice.


 


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Certain portions of this Exhibit have been omitted pursuant to a
request for confidentiality.  Such
omitted portions, which are marked with brackets [   ] and an
asterisk*, have been separately filed with the Commission.


3.             In addition, Acorda shall pay to Elan an additional
royalty of:


(i)                                     [**] of NSP of the Product sold outside
the US during the Base Royalty Term (as such term is defined in the Rush/Acorda
License);


(ii)                                  [**] of NSP of the Product sold outside
the US during the Reduced Royalty Term (as such term is defined in the
Rush/Acorda License);


(iii)                               during the Reduced Royalty Term, [**] of
the difference between (a) the royalty that would have been payable by Acorda
to Rush during the Base Royalty Term and (b) the royalty payable by Acorda to
Rush during the Reduced Royalty Term under Section 5.3.1 of the Rush/Acorda
License on such sales of Product in the applicable country; and/or


(iv)                              after termination or expiration of
Acorda’s royalty obligations to Rush under the Rush/Acorda License in any
country, [**] of NSP of the Product in such country; (with the amounts payable
under the foregoing subparagraphs (i), (ii) (iii) and/or (iv), as applicable,
referred to as  the “Additional
Royalty”);


provided, however, that  in the event the provisions of Clause 5.6.2 or Clause 5.6.3 of
the Elan/Acorda License are applicable, any Additional Royalty payable shall be
limited to [**] of NSP of Product. All payments of the Additional Royalty shall
be made in accordance with the provisions of Clauses 5.6.4, 5.6.5 and 5.6.6 of
the Elan/Acorda License, and Article 5.9 of the Elan/Acorda License, to the
extent applicable.


4.             In the event that Elan breaches any of its financial
obligations and undertakings under Paragraph 2 of this Rush Payments Agreement,
Acorda may offset and credit the amount of the unpaid financial obligation,
together with accrued interest thereon, against any amounts payable from Acorda
to Elan under the Elan/Acorda License including, without limitation, amounts
payable under Section 3.4 of the Elan/Acorda License. In the event that it is
determined that Acorda has incorrectly offset or credited any amounts pursuant
to this Paragraph 4, Acorda shall promptly pay the incorrectly offset or
credited amount, together with accrued interest thereon, to Elan.


5.             In the event that Acorda has breached any financial or
other curable obligation under the Rush/Acorda License which breach would give
Rush the right, pursuant to the Section 8.2.1 of the Rush/Acorda License, to
terminate the Rush/Acorda License and, pursuant to the terms of the Side
Agreement, Elan has the right to and remedies such breach (provided, however,
that Elan shall not have the right to remedy such breach if such breach has
been consented to by Elan or is primarily due to the fault of Elan or if Elan
is in breach of the terms of this Rush Payments Agreement or the Elan/Acorda
License), Elan may charge Acorda an amount equal to the amount so paid by Elan
to Rush to remedy such breach on behalf of Acorda. In the event that it is
determined that Elan has incorrectly charged any amounts to Acorda pursuant to
this


 


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Paragraph 5 and Acorda has paid such amounts, Elan
shall promptly repay to Acorda the incorrectly charged and paid amount,
together with accrued interest thereon.


6.             In the event that Rush terminates the Rush/Acorda
License pursuant to Section 8.2.1 thereof as a result of a breach by Acorda
and, pursuant to the terms of the Side Agreement, Elan has the right to and
elects to assume the rights and obligations of Acorda under the Rush/Acorda
License (provided, however, that Elan shall not have the right to assume such
rights and obligations if such breach has been consented to by Elan, is
primarily due to the fault of Elan or if Elan is in breach of the terms of this
Rush Payments Agreement or the Elan/Acorda License), Elan may charge Acorda an
amount equal to any amounts or financial obligations so paid or incurred by
Elan to Rush pursuant to Elan’s assumption of Acorda’s obligations under the
Rush/Acorda License.


7.             Acorda agrees to indemnify Elan from and against any
losses and liability arising from any claims made by Rush against Elan after
the Effective Date resulting primarily from any acts or omissions of Acorda
under the Rush/Acorda License.  Elan shall
give Acorda prompt notice of any such loss or liability, shall cooperate in its
defense, and shall give Acorda full authority to defend and settle such claim
on Elan’s behalf. This indemnity obligation shall not apply in the case of
losses primarily caused by or based on (i) Elan’s acts or omissions; or (ii)
any breach of this Rush Payments Agreement, the Side Agreement or the
Elan/Acorda License by Elan.


In the event Elan has the right to and elects to cure
any Acorda breach of, or assumes the rights and obligations of Acorda under
the, Rush/Acorda License in accordance with the terms of the Side Agreement and
this Rush Payments Agreement, Elan agrees to indemnify Acorda from and against
any losses and liability arising from any claims made by Rush against Acorda
resulting from any acts of Elan after the date that Elan cures  such breach or assumes Acorda’s obligations
under the Rush/Acorda License.  Acorda
shall give Elan prompt notice of any such loss or liability, shall cooperate in
its defense, and shall give Elan full authority to defend and settle such claim
on Acorda’s behalf. This indemnity obligation shall not apply in the case of
losses primarily caused by or based on (i) Acorda’s acts or omissions; or (ii)
any breach of this Rush Payments Agreement, the Side Agreement or the
Elan/Acorda License by Acorda.


8.             All notices or other communications
which are required or permitted hereunder shall be in writing and sufficient if
delivered personally, sent by facsimile (and promptly confirmed by personal
delivery, registered or certified mail or overnight courier), sent by
nationally-recognized overnight courier or sent by registered or certified
mail, postage prepaid, return receipt requested, addressed as follows:


	
  if to Acorda to:

  	
  ACORDA
  THERAPEUTICS, INC..

  
	
   

  	
  15 Skyline Drive 

  
	
   

  	
  Hawthorne, New York
  10532

  
	
   

  	
  Attention:  President

  
	
   

  	
  Fax No.: 914.347.4560

  



 


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  if to Elan to:

  	
  ELAN CORPORATION, PLC.

  
	
   

  	
  c/o Elan
  International Services Ltd.

  
	
   

  	
  102 St. James
  Court

  
	
   

  	
  Flatts,

  
	
   

  	
  Smiths FL04
  Bermuda

  
	
   

  	
  Attention:
  Secretary

  
	
   

  	
  Fax No: +1 441
  292 2224

  



9.             This Rush Payments Agreement shall be effective as
of  the date set forth below  (“Effective Date”), and shall be governed by
the laws of the State of New York without reference to any rules of conflict of
laws.  Any disputes under this Agreement
shall be governed by the dispute resolution provisions of Article 12.14 of the
Elan/Acorda License.


10.           This Rush Payments Agreement may be
executed in two or more counterparts, each of which shall be deemed an
original, but all of which together shall constitute one and the same
instrument.


IN WITNESS WHEREOF, the
Parties have executed this Rush Payments Agreement as of September____, 2003.


	
  ACORDA THERAPEUTICS, INC.

  
	
   

  
	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
  President and Chief
  Executive Officer

  
	
   

  
	
  ELAN CORPORATION, PLC.

  
	
   

  
	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  
	
   

  
								



 


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EXHIBIT A


RUSH/ACORDA LICENSE


 


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