IN THE UNITED STATES DISTRICT COURT 

FOR THE SOUTHERN DISTRICT OF NEW YORK 

FEDERAL TRADE COMMISSION; STATE 

OF NEW YORK; STATE OF CALIFORNIA; 

STATE OF ILLINOIS; STATE OF NORTH 

CAROLINA; STATE OF OHIO; 

COMMONWEALTH OF PENNSYLVANIA; 

and COMMONWEALTH OF VIRGINIA 

 Plaintiffs, 

 v. 

VYERA PHARMACEUTICALS, LLC; 

PHOENIXUS AG; MARTIN SHKRELI, 

individually, as an owner and former officer 

of Vyera Pharmaceuticals, LLC and 

Phoenixus AG (formerly known as Turing 

Pharmaceuticals, LLC and Turing 

Pharmaceuticals, AG); and KEVIN 

MULLEADY, individually, as an owner and 

director of Phoenixus AG and a former 

executive of Vyera Pharmaceuticals, LLC, 

 Defendants. 

Case No.: 1:20-cv-00706-DLC 

Joint Motion for Entry of Stipulated Order for Permanent Injunction 

Plaintiffs Federal Trade Commission (“FTC), by its designated attorneys, and the states 

and commonwealths of New York, California, Illinois, North Carolina, Ohio, Pennsylvania, and 

Virginia (collectively the “Plaintiff States”), by and through their Attorneys General (collectively 

“Plaintiffs”) and Defendants Vyera Pharmaceuticals, LLC, Phoenixus AG, and Kevin Mulleady 

(collectively “Settling Defendants”), by their respective attorneys, respectfully move this Court 

to enter the accompanying Stipulated Order for Permanent Injunction and Equitable Monetary 

Relief (“Stipulated Order”). Entry of the Stipulated Order will end the litigation against the 

Settling Defendants. The litigation will proceed against Defendant Martin Shkreli. A copy of the 

Case 1:20-cv-00706-DLC Document 753 Filed 12/07/21 Page 1 of 8
2 

Stipulated Order is attached as Exhibit A. As grounds for this request, the parties state as 

follows: 

1. On April 16, 2021, Plaintiffs filed an Amended Complaint against the Settling 

Defendants and Mr. Shkreli, pursuant to Section 13(b) of the Federal Trade Commission Act 

(“FTC Act”), 15 U.S.C. § 53(b), Section 16 of the Clayton Act, 15 U.S.C § 26, Section 342 of 

the New York General Business Law, Section 63(12) of the New York Executive Law, Sections 

16700 et seq., 17200 et seq. of the California Business and Professions Code, Section 7 of the 

Illinois Antitrust Act, 740 ILCS 10/1 et seq., North Carolina Unfair or Deceptive Practices Act, 

N.C. Gen. Stat. §75-1 et seq., Chapter 1331and Section 109.81 of the Ohio Revised Code, 

Pennsylvania, Unfair Trade Practices and Consumer Protection Law, 73 P.S. § 201-1 et seq. and 

Common Law Doctrine against Restraints of Trade proceeding under 71 P.S. § 732-204 (c) and 

the Virginia Antitrust Act, Virginia Code §59.1-9.1 et seq., alleging unfair methods of 

competition, monopolization, and agreements in restraint of trade to prevent generic competition 

to Daraprim, an anti-parasitic used to treat toxoplasmosis. 

2. The Settling Defendants deny the allegations and claims against them in the 

Amended Complaint, and that Plaintiffs are entitled to any relief sought therein. 

3. In their Amended Complaint, Plaintiffs seek a permanent injunction to prevent the 

continuation of the conduct at issue and to prevent similar and related conduct in the future and 

to prevent Defendants Shkreli and Mulleady (the “Individual Defendants”) from owning in part 

or whole, or working for, a pharmaceutical company. The State Plaintiffs also seek equitable 

monetary relief under Section 342 of the New York General Business Law, Section 63(12) of the 

New York Executive Law, Sections 16700 et seq., 17200 et seq. of the California Business and 

Professions Code, Section 7 of the Illinois Antitrust Act, 740 ILCS 10/1 et seq., North Carolina 

Case 1:20-cv-00706-DLC Document 753 Filed 12/07/21 Page 2 of 8
3 

Unfair or Deceptive Practices Act, N.C. Gen. Stat. §75-1 et seq., Chapter 1331and Section 

109.81 of the Ohio Revised Code, Pennsylvania, Unfair Trade Practices and Consumer 

Protection Law, 73 P.S. § 201-1 et seq. and Common Law Doctrine against Restraints of Trade 

proceeding under 71 P.S. § 732-204 (c) and the Virginia Antitrust Act, Virginia Code §59.1-9.1 

et seq. 

4. The Settling Defendants have reached a settlement with Plaintiffs. In doing so, the 

Settling Defendants admit only the facts necessary to establish the personal and subject matter 

jurisdiction of the Court in this matter. 

5. The Settling Defendants agree to be bound by the terms of the Stipulated Order 

upon its entry by the Court. 

6. The Stipulated Order applies for a period of 10 years and provides for the parties 

to bear their respective costs in this action. 

7. The Stipulated Order includes injunctive relief in the form of conduct prohibitions 

that prevent the Corporate Defendants from engaging in conduct similar to that challenged in the 

Amended Complaint for a period of 10 years, as set forth in Section II.A. 

8. The Stipulated Order also includes (a) injunctive relief in the form of conduct 

prohibitions that prevent Mr. Mulleady (or any company owned or controlled by him) from 

engaging in conduct similar to that challenged in the Amended Complaint for a period of 10 

years, as set forth in Section II.F; and (b) injunctive relief that bans, restrains, and enjoins Mr. 

Mulleady from participating in various activities relating to, exercising control over, and serving 

as an officer or director of, any pharmaceutical company, and from acquiring, holding, or voting 

more than 8% of any pharmaceutical company, with two exceptions, for a period of 7 years, as 

set forth in Section II.C and D of the Stipulated Order. 

Case 1:20-cv-00706-DLC Document 753 Filed 12/07/21 Page 3 of 8
4 

9. The Stipulated Order also provides for the following equitable monetary relief 

payable to the Plaintiff States: 

 The Corporate Defendants shall pay a guaranteed amount of $10 million 

upfront and up to $30 million more in contingent payments over 10 years 

as set forth in Paragraphs V.A-G of the Stipulated Order; 

 A suspended judgment of $250,000 is entered against Mr. Mulleady that is 

payable only after a final, unappealable court ruling that he has violated 

the Order, as set forth in Paragraph V.H. of the Stipulated Order. 

10. By December 6, 2021, all Plaintiffs and the Settling Defendants had signed the 

Stipulated Order. On December 7, 2021, the Commission voted 4-0 to accept the proposed 

Stipulated Order. On December 6, 2021, the Attorneys General of all Plaintiff States accepted 

the proposed Stipulated Order. All Plaintiffs and the Settling Defendants jointly request that the 

Court enter the attached Stipulated Order and place it on the public record, thereby bringing this 

litigation to an end as to the Settling Defendants, and retain jurisdiction for the purposes of 

construction, modification, and enforcement of the Proposed Order. 

Respectfully submitted, 

/s/ Markus H. Meier 

Markus H. Meier 

Federal Trade Commission 

600 Pennsylvania Ave., NW 

Washington, DC 20580 

Tel: (202) 326-3759 

mmeier@ftc.gov 

Counsel for Plaintiff Federal Trade Commission 

 

Case 1:20-cv-00706-DLC Document 753 Filed 12/07/21 Page 4 of 8
5 

/s/ Elinor R. Hoffmann 

Elinor R. Hoffmann 

Chief, Antitrust Bureau 

Office of the New York Attorney General 

28 Liberty Street 

New York, NY 10005 

Tel: (212) 416-8269 

elinor.hoffmann@ag.ny.gov 

Counsel for Plaintiff State of New York 

/s/ Michael D. Battaglia 

Michael D. Battaglia 

Deputy Attorney General 

Office of the Attorney General of California 

455 Golden Gate Avenue, Suite 11000 

San Francisco, CA 94102 

Tel: (415) 510-3769 

michael.battaglia@doj.ca.gov 

Counsel for Plaintiff State of California 

/s/ Richard S. Schultz 

Richard S. Schultz 

Assistant Attorney General 

Office of the Attorney General of Illinois 

100 W. Randolph Street, 11th Floor 

Chicago, IL 60601 

Tel: (312) 814-3000 

rschultz@ilag.gov 

Counsel for Plaintiff State of Illinois 

/s/ K.D. Sturgis 

K.D. Sturgis 

Special Deputy Attorney General 

Jessica V. Sutton 

Special Deputy Attorney General 

North Carolina Department of Justice 

Consumer Protection Division 

114 West Edenton Street 

Raleigh, NC 27603 

Tel: (919) 716-6000 

ksturgis@ncdoj.gov 

Counsel for Plaintiff State of North Carolina

Case 1:20-cv-00706-DLC Document 753 Filed 12/07/21 Page 5 of 8
6 

/s/ Beth A. Finnerty 

Beth A. Finnerty 

Assistant Chief, Antitrust Section 

Derek M. Whiddon 

Assistant Attorney General 

Ohio Attorney General 

30 E. Broad Street, 26th Floor 

Columbus, OH 43215 

Tel: (614) 466-4328 

beth.finnerty@ohioattorneygeneral.gov 

Counsel for Plaintiff State of Ohio 

/s/ Joseph S. Betsko 

Joseph S. Betsko 

Senior Deputy Attorney General 

Stephen M. Scannell 

Deputy Attorney General 

Pennsylvania Office of Attorney General 

Antitrust Section 

Strawberry Square, 14th Floor 

Harrisburg, PA 17120 

jbetsko@attorneygeneral.gov 

Counsel for Plaintiff Commonwealth of Pennsylvania 

/s/ Tyler T. Henry

Tyler T. Henry 

Assistant Attorney General 

Office of the Attorney General of Virginia 

202 North Ninth Street 

Richmond, VA 23219 

thenry@oag.state.va.us 

Counsel for Plaintiff Commonwealth of Virginia 

/s/ Steven A. Reed_______________________ 

Steven A. Reed 

Morgan, Lewis & Bockius LLP 

1701 Market St. 

Philadelphia, PA 19103 

Tel: (215) 963-5603 

steven.reed@morganlewis.com 

Counsel for Defendants Phoenixus AG and Vyera Pharmaceuticals, LLC 

Case 1:20-cv-00706-DLC Document 753 Filed 12/07/21 Page 6 of 8
7 

/s/ Kenneth R. David_____________________ 

Kenneth R. David 

1633 Broadway 

New York, NY 10019 

Tel: (212) 506-1893 

kdavid@kasowitz.com 

Kasowitz Benson Torres LLP 

Counsel for Defendant Kevin Mulleady 

 

Case 1:20-cv-00706-DLC Document 753 Filed 12/07/21 Page 7 of 8
8 

CERTIFICATE OF SERVICE 

I hereby certify that on December 7, 2021, I have electronically filed a true and correct 

copy of the Joint Motion for Entry of Stipulated Order for Permanent Injunction with the 

Clerk of the Court using the CM/ECF system, which will automatically send e-mail notification 

of such filing to all counsel of record.

Dated: December 7, 2021 /s/ Maren Haneberg 

Maren Haneberg

Federal Trade Commission

600 Pennsylvania Avenue, NW 

Washington, DC 20580

Work: (202) 326-3084 

Cell: (202) 657-9928 

mhaneberg@ftc.gov 

Counsel for Plaintiff Federal Trade Commission 

Case 1:20-cv-00706-DLC Document 753 Filed 12/07/21 Page 8 of 8
Exhibit A 

Case 1:20-cv-00706-DLC Document 753-1 Filed 12/07/21 Page 1 of 41
 

IN THE UNITED STATES DISTRICT COURT 

FOR THE SOUTHERN DISTRICT OF NEW YORK 

FEDERAL TRADE COMMISSION; STATE 

OF NEW YORK; STATE OF CALIFORNIA; 

STATE OF ILLINOIS; STATE OF NORTH 

CAROLINA; STATE OF OHIO; 

COMMONWEALTH OF PENNSYLVANIA; 

and COMMONWEALTH OF VIRGINIA 

 Plaintiffs, 

 v. 

VYERA PHARMACEUTICALS, LLC; 

PHOENIXUS AG; MARTIN SHKRELI, 

individually, as an owner and former officer 

of Vyera Pharmaceuticals, LLC and 

Phoenixus AG (formerly known as Turing 

Pharmaceuticals, LLC and Turing 

Pharmaceuticals, AG); and KEVIN 

MULLEADY, individually, as an owner and 

director of Phoenixus AG and a former 

executive of Vyera Pharmaceuticals, LLC, 

 Defendants. 

Case No.: 1:20-cv-00706-DLC 

 

STIPULATED ORDER FOR 

PERMANENT INJUNCTION AND 

EQUITABLE MONETARY RELIEF 

Plaintiffs the Federal Trade Commission (“FTC” or “Commission”), by its designated 

attorneys, and the states or commonwealths of New York, California, Illinois, North Carolina, 

Ohio, Pennsylvania, and Virginia (collectively “Plaintiff States”), by and through their Attorneys 

General (collectively “Plaintiffs”), pursuant to Section 13(b) of the Federal Trade Commission 

Act, 15 U.S.C. § 53(b), Section 16 of the Clayton Act, 15 U.S.C § 26, Section 342 of the New 

York General Business Law, Section 63(12) of the New York Executive Law, Sections 16700 et 

seq., 17200 et seq. of the California Business and Professions Code, Section 7 of the Illinois 

Antitrust Act, 740 ILCS 10/1 et seq., North Carolina Unfair or Deceptive Practices Act, N.C. 

Gen. Stat. §75-1 et seq., Chapter 1331and Section 109.81 of the Ohio Revised Code, 

Pennsylvania Unfair Trade Practices and Consumer Protection Law, 73 P.S. § 201-1 et seq. and 

Common Law Doctrine against Restraints of Trade proceeding under 71 P.S. § 732-204 (c) and 

the Virginia Antitrust Act, Virginia Code §59.1-9.1 et seq., filed their Amended Complaint for 

Permanent Injunctive and Other Equitable Relief, against Defendants Vyera Pharmaceuticals, 

LLC, Phoenixus AG, Martin Shkreli, and Kevin Mulleady to remedy and prevent their alleged 

anticompetitive conduct and unfair methods of competition in or affecting commerce in violation 

Case 1:20-cv-00706-DLC Document 753-1 Filed 12/07/21 Page 2 of 41
2 

of Sections 1 and 2 of the Sherman Act, 15 U.S.C. §§ 1, 2, Section 5(a) of the Federal Trade 

Commission Act, 15 U.S.C. § 45(a), and state law. The Plaintiffs and Defendants Vyera 

Pharmaceuticals, LLC, Phoenixus AG, and Kevin Mulleady (collectively “Settling Defendants”) 

have agreed to resolve this case through settlement, without trial or final adjudication of any 

issue of law or fact, and stipulate to entry of this Stipulated Order for Permanent Injunction and 

Equitable Monetary Relief (“Order”) to resolve all matters against the Settling Defendants in 

dispute in this action.

FINDINGS 

1. This Court has subject matter jurisdiction over this matter pursuant to 28 U.S.C. §§ 1331, 

1337(a), and 1345, as well as under the principles of supplemental jurisdiction codified in 

28 U.S.C. § 1367(a). 

2. This Court has personal jurisdiction over the Settling Defendants because each has the 

requisite constitutional contacts with the United States of America pursuant to 15 U.S.C. 

§ 53(b) and with the state of New York pursuant to N.Y. CPLR §§ 301, 302. 

3. Venue for this matter is proper in this Court under Section 13(b) of the FTC Act, 15 

U.S.C. § 53(b), 15 U.S.C. § 22, and 15 U.S.C. § 1391(b) and (c). 

4. The Amended Complaint alleges that the Settling Defendants engaged in anticompetitive 

conduct and unfair methods of competition in violation of Sections 1 and 2 of the 

Sherman Act, 15 U.S.C. §§ 1, 2, Section 5(a) of the FTC Act, 15 U.S.C. § 45(a), and state 

law. 

5. The Settling Defendants admit the facts necessary to establish the personal and subject 

matter jurisdiction of this Court in this matter. 

6. The Settling Defendants deny the allegations and claims in the Amended Complaint and 

dispute that Plaintiffs are entitled to obtain relief. 

7. The Settling Defendants waive any claim they may have under the Equal Access to 

Justice Act, 28 U.S.C. § 2412, concerning the prosecution of this action through the date 

of this Order, and agree to bear their own costs and attorney fees. 

8. Entry of this Order satisfies the requests for relief made by the Plaintiffs in their 

Amended Complaint and is in the public interest. 

STIPULATIONS 

1. The Settling Defendants stipulate that venue for this matter is proper in this Court under 

15 U.S.C. § 22 and 28 U.S.C. § 1391(b) and (c), and under Section 13(b) of the FTC Act, 

U.S.C. § 53(b). 

Case 1:20-cv-00706-DLC Document 753-1 Filed 12/07/21 Page 3 of 41
3 

2. The Settling Defendants waive all rights to appeal or otherwise challenge or contest the 

validity of this Order. 

3. The Plaintiffs and the Settling Defendants have agreed that entry of this Order fully and 

finally resolves all claims and litigations between them arising from or based primarily 

on the allegations described in the Amended Complaint and precludes further litigation 

against Phoenixus, Vyera, and/or Mulleady, as defined herein, arising from or based 

primarily on the allegations except for purposes of enforcing or modifying this Order. 

4. The Plaintiffs and Settling Defendants stipulate that they will each bear their own costs in 

this matter and shall not make any claims against the other for attorneys’ fees or costs. 

ORDER 

IT IS HEREBY ORDERED: 

I. DEFINITIONS 

As used in this Order, the following definitions apply: 

A. “Phoenixus” means Phoenixus AG, its directors, officers, employees, agents, attorneys, 

representatives, successors, and assigns; and the joint ventures, subsidiaries, partnerships, 

divisions, groups, and affiliates controlled by Phoenixus AG, and the respective directors, 

officers, employees, agents, attorneys, representatives, successors, and assigns of each. 

B. “Vyera” means Vyera Pharmaceuticals, LLC, its directors, officers, employees, agents, 

attorneys, representatives, successors, and assigns; and the joint ventures, subsidiaries, 

partnerships, divisions, groups, and affiliates controlled by Vyera Pharmaceuticals, LLC, 

and the respective directors, officers, employees, agents, attorneys, representatives, 

successors, and assigns of each. Vyera Pharmaceuticals, LLC is a subsidiary of 

Phoenixus. 

C. “Kevin Mulleady” or “Mulleady” means Defendant Kevin Mulleady, an individual 

defendant. Mulleady was Chairman of the Board of Directors of Phoenixus AG and 

Chief Executive Officer of Vyera Pharmaceuticals, LLC. Mulleady is also the Executive 

Chairman and Chief Executive Officer of Prospero Pharmaceuticals, LLC. 

D. “Commission” means the United States Federal Trade Commission. 

E. “Plaintiff States” mean the states or commonwealths of New York, California, Illinois, 

North Carolina, Ohio, Pennsylvania, and Virginia. 

F. “API” means any active pharmaceutical ingredient that is used in the manufacture of a 

Drug Product. 

G. “Biosimilar” means any biologic Drug Product that is highly similar to, and has no 

clinically meaningful difference from, an existing FDA-approved biologic Drug Product 

or that otherwise meets the FDA’s criteria for classification as a biosimilar. 

Case 1:20-cv-00706-DLC Document 753-1 Filed 12/07/21 Page 4 of 41
4 

H. “Corporate Asset” means any asset of a Corporate Named Defendant or any successor, 

assign, joint venture, subsidiary, partnership, division, group, or affiliate controlled by a 

Corporate Named Defendant. Corporate Asset expressly excludes any inventory, goods 

or products that are sold or to be sold in the ordinary course of business, including 

without limitation, any APIs, raw materials, or finished product. Corporate Asset also 

expressly excludes any unissued shares of equity interests, capital stock, partnership 

interest, membership or limited liability company interest or similar equity right in one or 

both of the Corporate Named Defendants or any successor, assign, joint venture, 

subsidiary, partnership, division, group, or affiliate controlled by any of them. 

I. “Corporate Defendants” means Phoenixus and Vyera. 

J. “Corporate Named Defendants” means Phoenixus AG and Vyera Pharmaceuticals, LLC. 

K. “Customer or Supplier” means a counter-party to a distribution, wholesale, resale, API 

supply, or Drug Product purchase agreement with a Corporate Defendant. 

L. “Daraprim” means any Drug Product authorized for marketing or sale in the United 

States pursuant to FDA Authorization NDA 008578, and any supplements, amendments, 

or revisions to this NDA. 

M. “Designated State Representatives” mean the following named individuals or another 

representative identified by each respective Plaintiff State: 

1. Elinor R. Hoffmann, Chief, Antitrust Bureau, Office of the New York State 

Attorney General, 28 Liberty Street, New York, NY 10005, 

elinor.hoffmann@ag.ny.gov; 

2. Michael D. Battaglia, Deputy Attorney General, California Department of Justice, 

455 Golden Gate Avenue, Suite 11000, San Francisco, CA 94102, 

michael.battaglia@doj.ca.gov; 

3. Richard S. Schultz, Assistant Attorney General, Antitrust Bureau, Office of the 

Illinois Attorney General, 100 West Randolph Street, Chicago, IL 60601, 

richard.schultz@ilag.gov; 

4. K. D. Sturgis, Special Deputy Attorney General, North Carolina Department of 

Justice, 114 West Edenton Street, Raleigh, NC 27603, ksturgis@ncdoj.gov; 

5. Beth A. Finnerty, Assistant Chief, Antitrust Section, Office of the Ohio Attorney 

General, 30 East Broad Street, 26th Floor, Columbus, OH 43215, 

Beth.Finnerty@ohioAGO.gov; 

6. Joseph S. Betsko, Senior Deputy Attorney General, Pennsylvania Office of 

Attorney General, Strawberry Square, Harrisburg, PA 17120, 

jbetsko@attorneygeneral.gov; and 

7. Tyler T. Henry, Assistant Attorney General, Office of the Attorney General of 

Virginia, 202 North Ninth Street, Richmond, VA 23219, thenry@oag.state.va.us. 

N. “Development” means all preclinical and clinical research and development activities 

related to a Drug Product, including discovery or identification of a new chemical entity, 

test method development, all studies for the safety or efficacy of a Drug Product, 

toxicology studies, bioequivalence and bioavailability studies, pharmaceutical 

Case 1:20-cv-00706-DLC Document 753-1 Filed 12/07/21 Page 5 of 41
5 

formulation, process development, manufacturing scale-up, development-stage 

manufacturing, quality assurance/quality control development, stability testing, statistical 

analysis and report writing, for the purpose of obtaining any and all FDA Authorizations 

necessary for the manufacture, use, storage, import, export, transport, promotion, 

marketing, labeling, distribution, and sale of a Drug Product, and regulatory affairs 

related to the foregoing. 

O. “Drug Product” means any product that is the subject of an FDA Authorization. 

P. “Exempted Company” means any Pharmaceutical Company owned or controlled by 

Mulleady (including Prospero) whose business is limited to a Therapeutic Equivalent of 

Thiola and/or the PKAN Product. 

Q. “FDA” means the United States Food and Drug Administration. 

R. “FDA Authorization” means any of the following applications: 

1. An application filed or to be filed with the FDA pursuant to 21 C.F.R. Part 314 et 

seq., including “New Drug Application” (“NDA”), “Abbreviated New Drug 

Application” (“ANDA”), “Supplemental New Drug Application” (“SNDA”), or 

“Marketing Authorization Application” (“MAA”), and all supplements, 

amendments, and revisions thereto, any preparatory work, registration dossier, 

drafts and data necessary for the preparation thereof, and all correspondence 

between the holder and the FDA related thereto; or 

2. A “Biologic License Application” (“BLA”) filed or to be filed with the FDA 

pursuant to 21 C.F.R. 601.2, et seq., and Section 351 of the Public Health Service 

Act, and any NDA deemed to be a BLA by the FDA, and all supplements, 

amendments, revisions thereto, any preparatory work, drafts and data necessary 

for the preparation thereof, and all correspondence between the holder and the 

FDA related thereto. 

S. “GPO” means any group purchasing organization, an entity that negotiates prices of Drug 

Products on behalf of member healthcare providers, including hospitals, ambulatory care 

facilities, physician practices, nursing homes, and home health agencies. 

T. “Net Proceeds” means proceeds after deducting direct transaction costs paid to Third 

Parties (i.e., sales commissions, advisor fees, and other costs incurred solely due to the 

underlying transaction). 

U. “Ownership Interest” means any voting or non-voting stock, share capital, or equity in a 

Person (other than an individual). Ownership Interest shall not include any unexercised 

options or other unexercised instruments that are convertible into any voting or nonvoting stock. 

V. “Person” means any individual, partnership, joint venture, firm, corporation, association, 

trust, unincorporated organization, or other business or government entity, and any 

subsidiaries, divisions, groups, or affiliates thereof. 

W. “Pharmaceutical Company” means any Person (other than an individual) that is engaged 

in the research, Development, manufacture, commercialization, or marketing of any Drug 

Product. 

Case 1:20-cv-00706-DLC Document 753-1 Filed 12/07/21 Page 6 of 41
6 

X. “PKAN Product” means the chemical compound that, as of the date this Order is entered, 

Prospero is involved in the Development of as a potential treatment for pantothenate 

kinase-associated neurodegeneration (“PKAN”). 

Y. “Priority Review Voucher” means a voucher issued by the FDA that entitles a Drug 

Product to receive expedited regulatory review. 

Z. “Prospero” means Prospero Pharmaceuticals, LLC, its directors, officers, employees, 

agents, representatives, successors, and assigns; and the joint ventures, subsidiaries, 

partnerships, divisions, groups, and affiliates controlled by Prospero Pharmaceuticals, 

LLC, and the respective directors, officers, employees, agents, representatives, 

successors, and assigns of each. 

AA. “Therapeutic Equivalent” means a Drug Product that is classified by the FDA as being 

therapeutically equivalent to another Drug Product because, among other criteria, both 

Drug Products contain identical amounts of an API in the identical dosage form and route 

of administration, meet compendial or other applicable standards of strength, quality, 

purity, and identity, and they are classified by the FDA as bioequivalent. 

BB. “Thiola” means the Drug Products authorized for marketing or sale in the United States 

pursuant to FDA Authorizations NDA 019569 or NDA 211843, and any supplements, 

amendments, or revisions to these NDAs. 

CC. “Third Party” means any Person that is not a Corporate Defendant or an entity under 

common management, direction, or control of a Corporate Defendant. 

II. PROHIBITED BUSINESS ACTIVITIES 

Corporate Defendants 

The Corporate Defendants, directly or through any Person, are hereby restrained and 

enjoined from entering into or enforcing any contract, arrangement, mutual 

understanding, or agreement that prohibits, or in any manner interferes with or restricts 

the ability of: 

1. Any purchaser (including hospitals and pharmacies), reseller, wholesaler, or 

distributor of a Drug Product to provide that Drug Product to a Pharmaceutical 

Company or its agent(s) or representative(s) for the purposes of the Development 

of a Therapeutic Equivalent or Biosimilar of that Drug Product by that 

Pharmaceutical Company, 

Provided, however, this provision does not prohibit the Corporate Defendants 

from entering an agreement with a distributor that restricts that distributor to 

certain channels of sale so long as it permits the distributor to sell the Drug 

Product to a Pharmaceutical Company or its agent(s) or representative(s) for the 

purposes of the Development of a Therapeutic Equivalent or Biosimilar of the 

Drug Product; 

2. Any manufacturer, seller, supplier, or distributor of an API to sell or provide that 

API to a Pharmaceutical Company, 

Case 1:20-cv-00706-DLC Document 753-1 Filed 12/07/21 Page 7 of 41
7 

Provided, however, this provision does not prohibit a Corporate Defendant from 

entering a contract to purchase all of its needs for a particular API from any 

Person so long as the contract does not require the Person to supply the API 

exclusively to the Corporate Defendant or restrict the Person’s freedom to sell the 

API to any other Person, and 

Provided further, if the Corporate Defendants have no other supply agreement for 

a particular API, this provision will not apply to any arrangement to obtain API 

from a Person who has not previously manufactured the API if the Corporate 

Defendants bear at least 50% of the direct costs of developing the API; or 

3. Any distributor, wholesaler, pharmacy, or GPO of a Drug Product to sell or 

otherwise provide data related to the sales or distribution of any Drug Product, 

such as sales numbers and volume, or other sales variables such as ordering 

trends, to a Person engaged in the business of purchasing, aggregating, and selling 

sales and distribution data on Drug Products. 

B. The Corporate Defendants shall not hire, appoint as an officer or director, or otherwise do 

business with Mulleady in any manner that violates Paragraph II.C of this Order and shall 

not hire, appoint as an officer or director, or otherwise do business with Defendant Martin 

Shkreli in any manner that violates any provision or restriction in an order issued by this 

Court. 

Defendant Kevin Mulleady 

C. For a period ending 7 years after this Order is entered, Mulleady is hereby banned, 

restrained, and enjoined from, directly, or through any other Person: 

1. Participating in the research, Development, manufacture, commercialization, 

distribution, marketing, importation, or sale of a Drug Product or API, including 

participating in the formulation, determination, or direction of any business 

decisions of any Pharmaceutical Company; 

2. Exercising control over the activities, conduct, board, or management of any 

Pharmaceutical Company; 

3. Serving as an officer or director of any Pharmaceutical Company; 

4. Entering into any agreements, whether oral or written, concerning how to vote his 

shares in any Pharmaceutical Company; and 

5. Calling an Extraordinary General Meeting at Phoenixus or Vyera either on his 

own or as part of a group doing so, 

Provided, however, Mulleady may exercise all other rights to which he is entitled as a 

shareholder of an Exempted Company and/or any Pharmaceutical Company to the extent 

such shareholding is permitted by Paragraph II.D. Nothing in this Paragraph II.C shall 

preclude Mr. Mulleady from expressing his own views on his own behalf as a 

shareholder concerning the business of any such Pharmaceutical Company, 

Case 1:20-cv-00706-DLC Document 753-1 Filed 12/07/21 Page 8 of 41
8 

Provided, further, it is not a violation of this Paragraph II.C for Mulleady to be employed 

by, consult with, or act as an officer or director of Phoenixus or Vyera, and in so doing 

take the actions set forth in Paragraphs II.C.1 to 3, so long as: 

a) Mulleady does not own or control any Ownership Interest in Phoenixus or 

Vyera, either directly or through any other Person, and 

b) Mulleady provides prior notification to the Commission and the Plaintiff 

States of any proposed involvement in or engagement with Phoenixus or 

Vyera pursuant to Paragraph VI.C, and 

Provided, finally, that it is not a violation of this Paragraph II.C for Mulleady to be 

employed by, consult with, or act as an officer or director of an Exempted Company 

and/or take the actions set forth in Paragraphs II.C.1 to 4 at an Exempted Company, so 

long as: 

a) The Exempted Company’s business is limited to (i) a Therapeutic 

Equivalent of Thiola and/or (ii) the PKAN Product, and the Exempted 

Company does not have an interest or role in, and is not engaged in any 

activities related to, any other Drug Product; 

b) The Exempted Company’s financial interest in any Therapeutic Equivalent 

of Thiola is limited to a passive royalty right; 

c) The Exempted Company does not have any authority, control, or other 

role in, or engage in any activities related to, the commercialization, 

marketing, sales, distribution, or pricing of any Therapeutic Equivalent of 

Thiola; 

d) Prior to the filing of an FDA Authorization, the Exempted Company fully 

divests itself of any control or authority to commercialize, market, sell, 

distribute, or price any PKAN Product; and 

e) Mulleady complies with the prior notification provisions set forth in 

Paragraphs VI.D and VIII.B. 

D. Mulleady is hereby restrained and enjoined from acquiring, holding, or voting more than 

8% of the Ownership Interest (based on the latest information available to shareholders 

from the issuer) in any Pharmaceutical Company (other than an Exempted Company), 

either directly or through any other Person, 

Provided, however, it shall not be a violation of this Paragraph II.D if Mulleady passively 

obtains more than 8% of the Ownership Interest in a Pharmaceutical Company through 

means other than exercising options or otherwise purchasing the Ownership Interest so 

long as Mulleady (i) reduces his Ownership Interest in such Pharmaceutical Company to 

8% or lower within 10 months, and (ii) in the interim only votes up to 8% of the 

Ownership Interest in the Pharmaceutical Company, 

Provided, further, this Paragraph II.D does not permit Mulleady to acquire, hold, or vote 

any Ownership Interest in Phoenixus or Vyera while Mulleady is employed by, 

consulting with, or acting as officer or director for Phoenixus or Vyera, and 

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9 

Provided, finally, Mulleady may exercise the rights to which he is entitled as a 

shareholder of a Pharmaceutical Company (other than those prohibited by Paragraphs 

II.C.4 and 5) so long as his Ownership Interest in such company does not exceed the 

limits in this Paragraph II.D. 

E. If Phoenixus or Vyera is found in violation of Section II of this Order, it shall be 

presumed that Mulleady has also violated the terms of this Order, but only if he is 

employed by, consulting with, or acting as officer or director for Phoenixus or Vyera at 

the time the violation occurs. Mulleady may rebut this presumption by proving to the 

Court by a preponderance of the evidence that he did not have any knowledge of, 

involvement in, or in any manner facilitate, the violation of this Order. 

F. Mulleady, any Exempted Company, and any other company Mulleady controls, is 

restrained and enjoined from proposing, negotiating, reviewing, entering into, being a 

party to, or enforcing, either directly or through any other Person, any contract, 

arrangement, mutual understanding, or agreement that prohibits, or in any manner 

interferes with or restricts the ability of: 

1. Any purchaser (including hospitals and pharmacies), reseller, wholesaler, or 

distributor of a Drug Product to provide that Drug Product to a Pharmaceutical 

Company or its agent(s) or representative(s) for the purposes of the Development 

of a Therapeutic Equivalent or Biosimilar of that Drug Product by that 

Pharmaceutical Company, 

Provided, however, this provision does not prohibit Mulleady, any Exempted 

Company, or any other company Mulleady controls from entering an agreement 

with a distributor that restricts that distributor to certain channels of sale so long 

as it permits the distributor to sell the Drug Product to a Pharmaceutical Company 

or its agent(s) or representative(s) for the purposes of the Development of a 

Therapeutic Equivalent or Biosimilar of the Drug Product; 

2. Any manufacturer, seller, supplier, or distributor of any API to provide that API 

to a Pharmaceutical Company, 

Provided, however, this provision does not prohibit Mulleady, any Exempted 

Company, or any other company Mulleady controls from entering a contract to 

purchase all of its needs for a particular API from any Person so long as the 

contract does not require the Person to supply the API exclusively to the company 

or restrict the Person’s freedom to sell the API to any other Person, and 

Provided further, if Mulleady, any Exempted Company, or any other company 

Mulleady controls has no other supply agreement for the particular API, this 

provision will not apply to any arrangement to obtain API from a Person who has 

not previously manufactured the API if Mulleady, the Exempted Company, or any 

company he owns or controls bears at least 50% of the direct costs of developing 

the API; or 

3. Any distributor, wholesaler, pharmacy, or GPO of a Drug Product to sell or 

otherwise provide data related to the sales or distribution of any Drug Product, 

such as sales numbers and volume, or other sales variables such as ordering 

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10 

trends, to a Person engaged in the business of purchasing, aggregating, and selling 

sales and distribution data on Drug Products. 

III. NOTIFICATIONS TO AFFECTED PERSONS 

Corporate Defendants 

The Corporate Defendants shall provide, within 21 days of the entry of this Order, written 

notification in the form of Appendix A to this Order to all their Customers and Suppliers, and 

going forward shall provide such notification to any Customer or Supplier to whom the 

Corporate Defendants have not previously provided notification under this Section III, 

Provided, however, the Corporate Defendants need not provide notice to Customers entering into 

an agreement to purchase generic prescription drugs so long as the agreement does not also 

include branded prescription drugs or an API. 

IV. SUPPLY OF DRUG PRODUCTS 

Corporate Defendants 

A. So long as a Corporate Defendant markets a Drug Product, they shall, at the request of a 

Pharmaceutical Company, sell the Drug Product to that Pharmaceutical Company for use 

in Development of a Therapeutic Equivalent or Biosimilar of the Drug Product in 

accordance with the following: 

1. The quantity sold shall be at least as much as the Pharmaceutical Company, in its 

reasonable judgment, needs to conduct its Development of a Therapeutic 

Equivalent or Biosimilar of the Drug Product; 

2. The Drug Product is delivered no later than 30 days after the Corporate Defendant 

receives a purchase order; and 

3. The Corporate Defendants shall charge the Pharmaceutical Company a price that 

is no greater than the wholesale acquisition cost of the Drug Product. 

B. The Corporate Defendants shall continue to market and sell Daraprim until the earliest to 

occur of the following: 

1. At least three Pharmaceutical Companies that are Third Parties have obtained 

FDA Authorization to market and sell a Therapeutic Equivalent of Daraprim and 

each has made at least one commercial sale of the Therapeutic Equivalent; 

2. At least two Pharmaceutical Companies that are Third Parties have obtained FDA 

Authorization to market and sell a Therapeutic Equivalent of Daraprim and each 

of these Pharmaceutical Companies has made uninterrupted commercial sales of 

the Therapeutic Equivalent for a period of at least 9 months; 

3. The Corporate Defendants exhaust their supply of pyrimethamine API, the API is 

no longer available, or the API is only available at a cost or in quantities that 

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11 

make it unprofitable to continue marketing and selling Daraprim, and the 

Corporate Defendants notify the Commission and the Designated State 

Representatives of their inability to secure a supply of pyrimethamine and the 

reasons therefore; 

4. An independent auditor, selected by the Corporate Defendants and approved by 

the Plaintiffs, verifies that the operating expenses (including variable and fixed 

costs) for Daraprim exceeded net revenues generated through the sale of 

Daraprim for at least two consecutive quarters; 

5. The Corporate Defendants lose FDA Authorization to continue marketing 

Daraprim; 

6. Three years after this Order is entered; or 

7. The Corporate Defendants (a) notify the Commission and the Plaintiff States of 

their intent to discontinue marketing Daraprim; (b) sell their Daraprim business to 

an acquirer (“Acquirer”) and in a manner that is acceptable to the Commission 

and the Plaintiff States; (c) maintain the viability, marketability, and 

competitiveness of the Daraprim business until the sale of the Daraprim business 

is completed; and (d) provide the Acquirer with the assistance and information 

necessary to enable the Acquirer to obtain the necessary approvals to 

manufacture, market, and sell Daraprim in commercial quantities, and to supply 

the Acquirer with sufficient quantities of Daraprim to meet the Acquirer’s 

commercial needs until the Acquirer is independently able to manufacture and 

market commercial quantities of Daraprim. 

C. The Corporate Defendants shall provide notifications required under this Section IV to 

the Commission and the Plaintiff States by sending electronic copies to the Secretary of 

the Commission at ElectronicFilings@ftc.gov and to the Compliance Division at 

bccompliance@ftc.gov, and by sending electronic copies to each Designated State 

Representative. 

V. EQUITABLE MONETARY RELIEF 

Corporate Named Defendants 

A. The Corporate Named Defendants shall pay up to $40 million to the Settlement Fund 

(defined below), comprised of a guaranteed payment of $10 million, and contingent 

payments of up to $30 million pursuant to Paragraph V.C. 

B. The Corporate Named Defendants shall pay $10 million as equitable monetary relief, 

which shall be used for a settlement fund in accordance with the terms of this Order 

(“Settlement Fund”). The Corporate Named Defendants will make this payment within 

30 business days of the entry of this Order by electronic fund transfer into the Settlement 

Fund in accordance with instructions provided by the Plaintiff States. The money 

deposited into the Settlement Fund shall be held in escrow and distributed in the manner 

prescribed in Paragraph V.D herein. 

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12 

C. The Corporate Named Defendants are ordered to make additional payments of equitable 

monetary relief, not to exceed $30 million in the aggregate, to the Settlement Fund as 

described below: 

1. For any Corporate Asset other than a Priority Review Voucher, Corporate Named 

Defendants will: 

a) Pay 20% of the total Net Proceeds from the sale, license, transfer, or other 

monetization of an asset that results from a transaction that is executed 

within 5 years after this Order is entered; and 

b) Pay 20% of the total Net Proceeds from a transaction monetizing the 

remaining royalty stream related to Ketamine assets that is executed prior 

to entry of this Order or within 5 years after this Order is entered. 

Corporate Named Defendants must transfer monies related to transaction into the 

Settlement Fund within 30 days of its receipt; for example, in a transaction with 

an upfront payment and royalty stream, the Corporate Named Defendants would 

pay 20% of the net upfront payment within 30 days of receiving the upfront 

payments and would pay 20% of any additional royalties within 30 days of when 

the royalties are received by either Corporate Named Defendant, 

Provided, however, the Corporate Named Defendants shall not be required to 

make payments under this Paragraph V.C.1 after (a) their total payments to the 

Settlement Fund under this Paragraph V.C.1 equal $15 million, or (b) their total 

combined payments to the Settlement Fund under Paragraphs V.C.1 and V.C.2 

equal $30 million. 

2. For any Priority Review Voucher that is a Corporate Asset, the Corporate Named 

Defendants will pay 20% of the Net Proceeds received from the the sale, license, 

transfer or other monetization of the Priority Review Voucher that results from a 

transaction executed during the term of this Order, 

Provided, however, the Corporate Named Defendants shall not be required to 

make payments under this Paragraph V.C.2 after their total payments to the 

Settlement Fund under Paragraphs V.C.1 and V.C.2 equal $30 million. 

3. No later than 30 days after any transaction for which the Corporate Named 

Defendants are required to make additional payments under this Paragraph V.C, 

the Corporate Named Defendants shall provide notice to the Designated State 

Representatives of the transaction. The notice shall include a description of the 

transaction and its financial terms, contact information for each party to the 

transaction (including the name, phone number and email address of a 

representative of the party with knowledge of the transaction), and a copy of all 

agreements regarding the transaction. 

D. All money deposited in the Settlement Fund pursuant to this Section V shall be used for 

equitable relief, including consumer redress and other equitable relief that the Plaintiff 

States determine to be related to the Corporate Named Defendants’ alleged violative 

practices and injury, any attendant expenses for the administration of such fund, and 

repayment of out-of-pocket expenses, and to satisfy the amount of any settlement reached 

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13 

in the related case, BCBSM, Inc. v. Vyera Pharmaceuticals, LLC, et al., No. 21-cv-01884-

DLC (SDNY) (the “Class Action”). Any money remaining in the fund after such 

distributions shall be deposited by the Plaintiff States as disgorgement to be used 

consistently with their respective state laws. Any interest earned on amounts deposited 

into the fund will remain in the fund and become a part of the fund. 

E. Within 10 business days of entry of the Order, the Corporate Named Defendants shall 

submit their Taxpayer Identification Numbers (Employer Identification Numbers) to the 

Plaintiff States. 

F. The Corporate Named Defendants shall have no right to challenge any actions the 

Plaintiff States or their representatives may take pursuant to this Section V of this Order. 

G. In consideration for the settlement of this matter and Plaintiff States’ agreement to 

receive equitable monetary relief over a period of 10 years, one or both Corporate Named 

Defendants, on behalf of themselves and their successors, and any subsidiaries, and 

affiliates controlled by them, whether private or publicly-traded, shall sign within 30 days 

of entry of this Order a collateral agreement (in the form contained in Appendix B or as 

otherwise agreed to by the Plaintiff States and the Corporate Named Defendants) to 

secure the contingent debt described in Paragraph V.C as follows: (1) the Corporate 

Named Defendants give and grant the Plaintiff States a secured interest in all of the assets 

that are Corporate Assets (other than as set forth in Appendix B and other than any right, 

title, or interest in any Priority Review Voucher) of the Corporate Named Defendants 

until the obligation in Paragraph V.C.1 has been fully satisfied or the prescribed period of 

time has expired; and (2) the Corporate Named Defendants give and grant the Plaintiff 

States a secured interest in the Priority Review Voucher that is a Corporate Asset until 

the obligations of Paragraph V.C.2 have been fully satisfied or the prescribed period of 

time has expired. The Corporate Named Defendants shall promptly provide information 

requested by a Designated State Representative to facilitate the perfection or enforcement 

of the security interest granted under the collateral agreement. If Corporate Named 

Defendants file for bankruptcy protection, within this 10 year period, the Corporate 

Named Defendants shall not object to the Plaintiff States asserting the appropriate 

security interest as a Secured Creditor with the appropriate court. 

Defendant Kevin Mulleady 

H. Judgment in the amount of two hundred and fifty thousand dollars ($250,000) is entered 

in favor of the Plaintiff States against Mulleady as equitable monetary relief in 

connection with a negotiated resolution of this action and not as part of any final 

adjudication of any issue of fact or law. The judgment is suspended unless and until 

there is a final unappealable judgment of contempt against Mulleady (i.e., all parties have 

exhausted their rights to appeal the judgment of contempt or the time for all such appeals 

has lapsed). A final unappealable judgment of contempt against Mulleady shall lift the 

suspension of the judgment and Mulleady shall be required to pay the judgment within 90 

days of delivery of instructions by a Designated State Representative. Neither party will 

contest the other party’s right to appeal any order or judgment of contempt or other 

violation of this Order. 

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14 

VI. PRIOR NOTIFICATION REQUIREMENTS 

Corporate Defendants 

A. The Corporate Defendants shall not, directly or indirectly, through subsidiaries, 

partnerships, or otherwise, acquire from a Third Party: 

1. Any Pharmaceutical Company; 

2. Any rights or interest in any Pharmaceutical Company; or 

3. Any exclusive rights to market, distribute, or sell any FDA-approved Drug 

Product; 

without providing prior written notification to the Commission and each of the 

Designated State Representatives. 

The prior notification required by this Section VI shall be given on the Notification and 

Report Form set forth in the Appendix to Part 803 of Title 16 of the Code of Federal 

Regulations as amended (hereinafter referred to as the “Notification”), and shall be 

prepared and transmitted in accordance with the requirements of that part, except that no 

filing fee will be required for any such Notification. Notification shall be filed with the 

Secretary of the Commission at ElectronicFilings@ftc.gov, and copies provided to the 

Compliance Division of the Commission at bccompliance@ftc.gov, and each Designated 

State Representative. Notification need not be made to the Department of Justice. 

Notification is required only of the Corporate Defendants and not of any other party to 

the transaction. The Corporate Defendants shall provide Notification to the Commission 

and to each of the Designated State Representatives at least 30 days prior to 

consummating any such transaction (hereafter referred to as the “first waiting period”). 

If, within the first waiting period, representatives of the Commission make a written 

request for additional information or documentary material (within the meaning of 16 

C.F.R. § 802.20), the Corporate Defendants shall not consummate the transaction until 30 

days after substantially complying with such request. Early termination of the waiting 

periods in this Paragraph VI.A may be requested by the Corporate Defendants and, where 

appropriate, granted by a letter from the Commission’s Bureau of Competition, 

Provided, however, that prior notification to the Commission shall not be required by this 

Order for a transaction for which notification is required to be made, and has been made, 

pursuant to Section 7A of the Clayton Act 15 U.S.C. § 18a; however, notification shall 

still be made to the Designated State Representatives, and 

Provided further, that prior notification shall not be required by this Order for a 

transaction valued at less than $25 million, as adjusted annually on the anniversary of the 

date this Order is entered based on the yearly increase or decrease of the Producer Price 

Index for Pharmaceutical Preparation Manufacturing. 

Defendant Kevin Mulleady 

B. If Mulleady, directly or through any other Person, acquires more than 1% of Ownership 

Interest in a Pharmaceutical Company (other than indirectly through a mutual fund, 

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15 

exchange-traded fund, or other diversified, investment vehicle that is not specifically 

focused on Pharmaceutical Companies), Mulleady shall provide written notification to 

the Commission and to each of the Designated State Representatives within 30 days of 

acquiring such interest, 

Provided, however, Mulleady need not provide notice of his Ownership Interest in 

Phoenixus, Vyera, or Prospero as of the date this Order is entered. 

As part of his notification, Mulleady shall describe, by number of shares and percentage 

of total ownership, based on the latest information available to shareholders from the 

issuer (which source Mulleady shall identify in the referenced notification), the size of his 

Ownership Interest in the relevant Pharmaceutical Company before the transaction, and 

the size of the Ownership Interest he acquired in the transaction. 

C. Mulleady shall not be employed by, consult with, or act as an officer or director for 

Phoenixus or Vyera pursuant to Paragraph II.C without providing 30 days’ prior written 

notification to the Commission and each of the Designated State Representatives. As part 

of his notification, Mulleady must identify and describe in detail his position and 

responsibilities, provide a copy of any employment or consulting agreement, identify and 

provide contact information for his immediate supervisor, and certify that he has 

provided a copy of the Order to his immediate supervisor. If, in response to the 

notification required pursuant to this Paragraph VI.C, representatives of the Commission 

or the Plaintiff States make a written request for additional information or documentary 

material, Mulleady will not commence any such work for Phoenixus or Vyera until 30 

days after substantially complying with the request. 

D. If Mulleady is employed by, consulting with, or acting as an officer or director of an 

Exempted Company, then the Exempted Company may not divest itself of control or 

authority to commercialize, market, sell, distribute, or price the PKAN Product without 

providing 30 days’ advance written notice of the closing of any such transaction to the 

Commission and the Plaintiff States. The written notification must identify the intended 

counterparty and value and date of the proposed transaction. No filing fee shall be 

required for such notification. If, in response to a notification required pursuant to this 

Paragraph VI.D, representatives of the Commission or the Plaintiff States make a written 

request for additional information or documentary material, the Exempted Company shall 

not consummate the transaction until 30 days after submitting such additional 

information or documentary material. The Commission and Plaintiff States are 

collectively limited to a single such request for additional information. 

VII. COMPLIANCE REPORTING REQUIREMENTS 

All Settling Defendants 

A. Each Settling Defendant shall submit to the Commission and to each of the Designated 

State Representatives verified written reports (“Compliance Reports”) setting forth in 

detail the manner and form in which each Settling Defendant intends to comply, has 

complied, and is complying with this Order, in accordance with the following: 

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1. Each Settling Defendant shall submit an initial Compliance Report within 60 days 

of the entry of this Order; 

2. On the first anniversary of the entry of this Order, and annually thereafter for 9 

years on the anniversary date of the entry of this Order, each Settling Defendant 

shall submit an annual Compliance Report; and 

3. Each Settling Defendant shall submit additional Compliance Reports as the 

Commission or its staff or a Designated State Representative may request. 

B. Each Compliance Report shall contain sufficient information and documentation to 

enable the Commission and the Plaintiff States to determine whether the Settling 

Defendants are in compliance with the Order. Conclusory statements that the Settling 

Defendant has complied with its or his obligations under this Order are insufficient. 

C. The Corporate Defendants shall include in their Compliance Reports, among other 

information or documentation that may be necessary to demonstrate compliance with this 

Order: 

1. A full description of the measures the Corporate Defendants have implemented or 

plans to implement to ensure that they have complied, are complying, or will 

comply with each paragraph of this Order; 

2. A certified accounting of all proceeds from the sale, license, transfer, or other 

monetization of any Corporate Asset (other than an asset related to a Priority 

Review Voucher) and the monetization of the remaining royalty stream related to 

Ketamine; and 

3. A certified accounting of all proceeds from the sale, license, transfer, or other 

monetization of any Priority Review Voucher. 

D. Mulleady shall include in his Compliance Reports, among other information or 

documentation that may be necessary to demonstrate compliance with this Order: 

1. A full description of the measures he has implemented or plans to implement to 

ensure that he has complied, is complying, or will comply with each paragraph of 

this Order, and 

2. Information that identifies and describes all ballots cast by him, directly or 

indirectly, in the exercise of his voting interest in any Pharmaceutical Company. 

Upon request by the Commission or a Designated State Representative, Mulleady 

shall provide copies of such ballots. 

E. Each Settling Defendant shall retain all material written communications with each party 

identified in its or his Compliance Report and all internal memoranda, reports, and 

recommendations concerning fulfilling its or his obligations under this Order, and shall 

provide non-privileged copies of these documents to Commission staff and the 

Designated State Representatives upon request. 

F. Each Settling Defendant shall submit its or his Compliance Report to the Commission 

and the Plaintiff States by submitting the report electronically to the Secretary of the 

Commission at ElectronicFilings@ftc.gov, to the Compliance Division of the 

Commission at bccompliance@ftc.gov, and to each Designated State Representative. 

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VIII. CHANGE OF CORPORATE CONTROL 

Corporate Defendants 

A. The Corporate Defendants shall notify the Commission and each Designated State 

Representative at least 30 days prior to: 

1. The dissolution of a Corporate Named Defendant; 

2. Any proposed acquisition, merger, or consolidation of a Corporate Named 

Defendant; or 

3. Any other change in a Corporate Named Defendant, including assignment and the 

creation or dissolution of subsidiaries, if such change might affect compliance 

obligations arising out of this Order. 

Defendant Kevin Mulleady 

B. If Mulleady is employed by, consulting with, or acting as an officer or director of an 

Exempted Company, then Mulleady shall notify the Commission and each Designated 

State Representative at least 30 days prior to: 

1. The dissolution of the Exempted Company; 

2. The closing of any proposed acquisition, merger, or consolidation of the 

Exempted Company; 

3. The closing of any proposed change of ownership, control, or authority of the 

PKAN Product; or 

4. Any other change in the Exempted Company, including assignment and the 

creation or dissolution of subsidiaries, if such change might affect compliance 

obligations arising out of this Order. 

IX. ACCESS TO INFORMATION 

All Settling Defendants 

For purposes of determining or securing compliance with this Order, subject to any legally 

recognized privilege, upon written request, and upon 10 business days’ notice to a Corporate 

Defendant (made to its principal United States offices, registered office of its United States 

subsidiary, or its headquarters address), or to Mulleady (if Mulleady is employed at, consulting 

with, or acting as officer or director of an Exempted Company in accordance with Paragraph 

II.C), the notified Corporate Defendant or Mulleady shall, without restraint or interference, 

permit any duly authorized representative of the Commission or of a Designated State 

Representative: 

A. Access, during business office hours of the Corporate Defendant or the Exempted 

Company, and in the presence of counsel, to all facilities and access to inspect and copy 

all non-privileged books, ledgers, accounts, correspondence, memoranda, and all other 

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18 

records and documents (“Books and Records”) in the possession or under the control of 

that Corporate Defendant or Mulleady related to compliance with this Order, which 

copying services shall be provided by the Corporate Defendant or Mulleady at the request 

of the authorized representative(s) of the Commission or of a Designated State 

Representative and at the expense of the Corporate Defendant or Mulleady, 

Provided, however, that if the Exempted Company does not have dedicated facilities of 

its own (including rented office space in a multipurpose building), Mulleady may make 

such Books and Records available at an alternative location within the Southern District 

of New York; and 

B. To interview officers, directors, or employees of the Corporate Defendant or the 

Exempted Company, who may have counsel present, regarding such matters. 

X. COOPERATION 

Corporate Defendants 

A. In connection with litigation in this matter against Defendant Martin Shkreli, the 

Corporate Defendants shall: 

1. Agree not to object or move to quash service of process of trial subpoenas to 

Anne Kirby and Nicholas Pelliccione issued by the Commission or the Plaintiff 

States under Rule 45 of the Federal Rules of Civil Procedure; and agree to seek 

their authorization to accept service on their behalf; and 

2. Negotiate in good faith with the Commission and a Designated State 

Representative to provide a declaration, affidavit or, if necessary, a sponsoring 

witness to establish the authenticity and admissibility of any documents or data 

that the Corporate Defendants produce or have produced to the Commssion or the 

Plaintiff States. 

Defendant Kevin Mulleady 

B. In connection with litigation in this matter against Defendant Martin Shkreli, Mulleady 

shall: 

1. Agree to service of process of a trial subpoena to Mulleady issued by the 

Commission or the Plaintiff States under Rule 45 of the Federal Rules of Civil 

Procedure; and 

2. Negotiate in good faith with the Commission and a Designated State 

Representative to provide a declaration, affidavit or, if necessary, act as a 

sponsoring witness to establish the authenticity and admissibility of any 

documents or data as to which he has personal knowledge or can provide 

evidence as to its reliability. 

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19 

XI. RETENTION OF JURISDICTION 

This Court shall retain jurisdiction of this matter for the purposes of construction, modification, 

and enforcement of this Order. 

XII. EXPIRATION OF ORDER 

This Order shall expire 10 years after the date it is entered. 

XIII. DISMISSAL AND COSTS 

This action is hereby dismissed with prejudice as to the Settling Defendants. Each party to bear 

its own costs. 

SO ORDERED this________________ day of _____________________, ____________. 

____________________________________ 

The Honorable Denise Cote 

 

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20 

SO STIPULATED AND AGREED: 

____________________________________ Date: _________ 

Markus H. Meier 

Assistant Director 

Health Care Division 

Bureau of Competition 

Federal Trade Commission 

FOR PLAINTIFF FEDERAL TRADE COMMISSION 

_______________ Date: _________ 

Elinor R. Hoffmann 

Chief 

Antitrust Bureau 

Office of the New York State Attorney General 

FOR PLAINTIFF STATE OF NEW YORK 

____________________________________ Date: _________ 

Michael D. Battaglia 

Deputy Attorney General 

California Department of Justice 

FOR PLAINTIFF STATE OF CALIFORNIA 

____________________________________ Date: _________ 

Richard S. Schultz 

Assistant Attorney General 

Antitrust Bureau 

Office of the Illinois Attorney General 

FOR PLAINTIFF STATE OF ILLINOIS 

12/4/2021

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K. D. Sturgis

Special Deputy Attorney General

Jessica V. Sutton 

Special Deputy Attorney General

North Carolina Deparbnent of Justice

FOR PLAINTIFF STATE OF NORTH CAROLINA

Beth A. Finnerty 

Assistant Chief 

Antitrust Section 

Office of the Ohio Attorney General 

FOR PLAINTIFF STA TE OF omo

Joseph S. Betsko 

Senior Deputy Attorney General 

Pennsylvania Office of Attorney General 

FOR PLAINTIFF COMMONWEAL TH OF PENNSYLVANIA 

Tyler T. Henry 

Assistant Attorney General 

Office of the Attorney General of Virginia 

FOR PLAINTIFF COMM:ONWEAL TH OF VIRGINIA 

21 

Date: ___ _ 

Date: /c}-�..-c}/ 

Date: ___ _ 

Date: - --

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A-1 

APPENDIX A 

NOTICE TO AFFECTED PERSONS 

Vyera/Phoenixus letterhead] 

[Name and address of recipient] 

Dear [Name of recipient]: 

This letter concerns an Order for Permanent Injunction and Equitable Monetary Relief (“the 

Order”) entered against Vyera Pharmaceuticals, LLC, and Phoenixus AG in Federal Trade 

Commission, et al. v. Vyera Pharmaceuticals, LLC, et al. Case No. 1:20-cv-00706-DLC. A copy 

of the Order is attached to this letter. Please read the Order carefully. To the extent anything 

in this letter differs from the terms in the Order, the Order supersedes this letter. Further, 

capitalized terms in this letter have the same meaning as those terms do in the Order.

The Order bars Vyera and Phoenixus from taking certain actions that can impede the 

development, manufacture, sale, or marketing of competing Drug Products. Among other things, 

and subject to certain enumerated exceptions, the Order prohibits and renders unenforceable any 

agreements where Vyera and Phoenixus interfere with any of the following: (1) providing a Drug 

Product to a Pharmaceutical Company for the Development of a Therapeutic Equivalent or 

Biosimilar of that Drug Product; (2) providing any API to a Pharmaceutical Company; and (3) 

providing data related to sales or distribution of a Drug Product to a data aggregator. 

If you have concerns about whether Vyera or Phoenixus is complying with its obligations under 

the Order, you may contact us at [contact information for Vyera and Phoenixus]. You may 

also contact the Federal Trade Commission at bccompliance@ftc.gov or the State Plaintiffs at 

[contact information for State Plaintiffs].

 Sincerely, 

 [name and title] 

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APPENDIX B 

COLLATERAL ASSIGNMENT AND SECURITY AGREEMENT 

This Collateral Assignment and Security Agreement (“Agreement”) is made by the states or 

commonwealths of New York, California, Illinois, North Carolina, Ohio, Pennsylvania, and 

Virginia (collectively “Secured Parties”) and Phoenixus AG, Vyera Pharmaceuticals, LLC , 

successors, and assigns (collectively “Grantors”) on the effective date of ____________, 2021. 

PRELIMINARY STATEMENT

 WHEREAS, the Grantors, have entered into a settlement agreement with Secured Parties 

to resolve all claims against the Grantors entitled Federal Trade Commission, et al. v. Vyera 

Pharmaceuticals, LLC, et al., Case No. 20-cv-00706 pending in the Federal Court of the 

Southern District of New York (the “Action”), the terms of which are set forth in the Stipulated 

Order for Permanent Injunction and Equitable Monetary Relief dated ______, 2021 in the Action 

(“Stipulated Order”). 

 WHEREAS, the Grantors have agreed to make certain contingent payments in an 

aggregate amount not to exceed $30 million over a period of up to 10 years based on sales of 

certain assets of the Grantors, as set forth in the Stipulated Order and as further described herein; 

and 

 WHEREAS, subject to the terms set forth in this Agreement, the Grantors have agreed to 

grant a security interest in the Collateral (as defined below) to the Secured Parties, as security for 

the Secured Obligations (as defined below); 

 NOW, THEREFORE, in consideration of the foregoing premises and other good and 

valuable consideration, the receipt of which are hereby acknowledged, the parties hereto agree as 

follows: 

DEFINITIONS 

1. Terms Defined in Agreement. All capitalized terms used herein and not 

otherwise defined shall have the meanings assigned to such terms in the Agreement. 

2. Terms Defined in New York UCC. Terms defined in the New York UCC which 

are not otherwise defined in this Security Agreement are used herein as defined in the New 

York UCC. 

3. Definitions of Certain Terms Used Herein. As used in this Agreement, in 

addition to the terms defined in the Preliminary Statement, the following terms shall have the 

following meanings: 

“Collateral” means any and all Corporate Assets of Phoenixus AG and Vyera 

Pharmaceuticals, LLC, in which a security interest may be created under Article 9 of the New 

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York UCC, including but not limited to Priority Review Vouchers and any Corporate Asset not 

related to a Priority Review Voucher, in which the Grantors now have, or hereafter acquire any 

right or interest in, as well as any monetized royalty stream owed to Phoenixus related to any 

Corporate Assets regarding the treatment of intranasal racemic ketamine, even if such 

transactions was entered prior to the entry of this Agreement. Collateral shall expressly exclude 

(a) any inventory, goods or products, including without limitation, any active pharmaceutical 

ingredients, raw materials or finished product sold or produced in the ordinary course of 

business, (b) any unissued shares of equity interests, capital stock, partnership interest, 

membership or limited liability company interest or similar equity right in one or both of the 

Corporate Named Defendants (as defined in the Stipulated Order) or any other Grantor or any 

successor, joint venture, subsidiary, partnership, division, group, or affiliate controlled by any of 

them, (c) any property to the extent that such grant is prohibited by any requirement of law of a 

governmental authority or constitutes a breach or default under or results in the termination of or 

requires any consent not obtained under, any contract, license, agreement, instrument or other 

document evidencing or giving rise to such property, except to the extent that such requirement 

of law or the term in such contract, license, agreement, instrument or other document providing 

for such prohibition, breach, default or termination or requiring such consent is ineffective under 

Section 9-406, 9-407, 9-408 or 9-409 of the UCC (or any successor provision or provisions) of 

any relevant jurisdiction or any other applicable law or principles of equity; provided, however, 

that such security interest shall attach immediately at such time as such requirement of law is not 

effective or applicable, or such prohibition, breach, default or termination is no longer applicable 

or is waived or any required consent has been obtained, and to the extent severable, shall attach 

immediately to any portion of the Collateral that does not result in such consequences; or (d) 

United States intent-to-use trademark or service mark application to the extent that, and solely 

during the period in which, the grant of a security interest therein would impair the validity or 

enforceability of such intent-to-use trademark or service mark application under Federal United 

States law; provided, however, after such period, each Grantor acknowledges that such interest 

in such trademark or service mark application shall be subject to a security interest in favor of 

the Secured Parties shall be included in the Collateral, or (e) leasehold interests in real property, 

or (f) motor vehicles and assets subject to certificates of title, or (g) or other assets to the extent 

the costs or burden of obtaining or perfecting a security interest therein is excessive in relation to 

the benefit of the collateral security provided to the Secured Parties, as reasonably determined by 

the Collateral Agent in consultation with the Grantors.

“Corporate Asset” has the meaning assigned to such term in the Stipulated Order.

“Event of Default” means that Grantors have: 

a. Failed to make payments in accordance with the requirements of 

Paragraph V.C of the Stipulated Order unless promptly cured; or 

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b. Commenced a case, proceeding or other action seeking to adjudicate it as 

bankrupt or insolvent or seeking reorganization, arrangement, adjustment, 

winding up, liquidation, dissolution, composition or other relief with 

respect to it or its debts. 

 “New York UCC” means the New York Uniform Commercial Code as in effect in the 

State of New York as of the date of this Agreement. 

“Secured Parties” Means the states or commonwealths of New York, California, 

Illinois, North Carolina, Ohio, Pennsylvania, and Virginia. 

GRANT OF SECURITY INTEREST 

1. Grantors’ Pledge. The Grantors hereby pledge, assign, and grant to 

Secured Parties, a security interest in all of such Grantors’ rights title and interest, 

whether now owned or hereinafter acquired, in and to the Collateral to secure the 

prompt and complete payments and performance of the Secured Obligations. The 

Grantors agree to promptly file such documents and to enter into any such agreements 

in order to perfect the Secured Parties security interest in the Collateral which may 

not be considered located in the United States. The Grantors shall take any other 

actions reasonably requested by the Secured Parties from time to time to cause the 

attachment and perfection of, and the ability of the Secured Party to enforce, the 

security interest of the Secured Party in any and all of the Collateral. 

REPRESENTATIONS AND WARRANTIES 

Grantors represent and warrant that: 

1. Authority to Act. The execution, delivery and performance of this 

Agreement are within its corporate or other organizational powers have been duly 

authorized by all required organizational action and do not and will not contravene its 

charter or other organizational documents or any law or any agreement or undertaking to 

which it is a party or by which it may in any way be bound.. 

2. Title, Validity and Enforceability. The Grantors are the rightful legal 

owners of the Collateral, and have good and valid rights in or the power to transfer the 

Collateral and title to the Collateral with respect to which it has purported to grant a 

security interest hereunder, free and clear of all liens. No other creditor has the right to 

ownership of the Collateral that may interfere with the Secured Parties’ ability to take and 

profit from the sale of said assets in the event that the above-listed contingent equitable 

monetary relief is not paid. 

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3. Change of Office. The Grantors shall not change their chief executive 

office or mailing addresses or organizational identification number unless the Secured 

Parties shall have received not less than 30 days’ prior written notice from Grantors of 

such proposed change, which notice shall set forth such information with respect thereto 

as the Secured Parties may require. 

4. Change of Name. The Grantors shall not change their names unless each 

of the following conditions is satisfied: (i) the Secured Parties shall have received not less 

than 30 days prior written notice from the Grantors of such proposed change in their 

names, which shall accurately set forth the proposed new name; and (ii) the Secured 

Parties shall receive a certified copy of the amendment to the charter documents 

providing for the name change as soon as it is available. 

5. Change of Structure. The Grantors shall not change their type of 

organization, jurisdiction of organization or other legal structure unless each of the 

following conditions is satisfied: (i) the Secured Parties shall have received not less than 

30 days prior written notice from the Grantors of such proposed change in it their names, 

which shall accurately set forth the proposed new name; and (ii) the Secured Parties shall 

receive a certified copy of the amendment to the charter documents providing for the 

change of structure as soon as it is available. 

EVENT OF DEFAULT/REMEDIES 

Grantors’ Obligations upon the Event of Default., Upon the occurrence of an Event of 

Default, the Secured Parties shall have the right to exercise all rights and remedies available to 

them under applicable law. 

GOVERNING LAW

1. Governing Law. This Agreement shall be construed in accordance with and 

governed by the law of the State of New York. 

2. Submission to Jurisdiction. The Grantors hereby irrevocably and 

unconditionally submit, for their selves and their property, to the nonexclusive jurisdiction of the 

United States District Court of the Southern District of New York, , and any appellate court from 

any appeal thereof, in any action or proceeding arising out of or related to this Agreement, or for 

recognition or enforcement of any judgment, and the Grantors, hereby irrevocably and 

unconditionally agree that all claims in respect of any such action or proceeding may be heard 

and determined in such Federal Court. The Grantor agrees 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 law. 

3. Waiver of Inconvenient Forum. The Grantors hereby irrevocably and 

unconditionally waive, to the fullest extent they may legally and effectively do so, any objection 

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which they may now or hereinafter have to the laying of venue of any suit, action or proceeding 

to enforce this Agreement in any court referred to in Paragraph 2 above. 

4. Waiver of Jury Trial. The Grantors hereby irrevocable and unconditionally 

waive, to the fullest extent permitted by applicable law, any right it may have to a trial by jury in 

any legal proceeding directly or indirectly arising out of or relating to this Agreement. 

GENERAL 

1. Successors and Assigns. This Agreement shall be binding upon Grantors 

and each of their successors and assigns and inure to the benefit of and be enforceable by 

Secured Parties, for the purpose of protecting the Secured Parties’ interest in the 

satisfaction of the Grantors’ obligation to make certain payments to the Settlement Fund 

as set forth in Paragraph V.C of the Stipulated Order. 

2. Amendments. Neither this Agreement nor any provision hereof shall be 

amended, modified, waived or discharged orally or by course of conduct, but only by a 

written agreement signed by the Secured Parties and the Grantors. The Secured Parties 

shall not, by any act, delay, omission or otherwise be deemed to have expressly or 

impliedly waived any of their respective rights, power and/or remedies unless such 

waiver shall be in writing and signed by all Secured Parties. Any such waiver shall be 

enforceable only to the extent specifically set forth therein. A waiver by Secured Party of 

any right, power and/or remedy on any one occasion shall not be construed as a bar to or 

waiver of any such right, power and/or remedy which the Secured Party would otherwise 

have on any future occasion, whether similar in kind or otherwise.

3. Survivability. If any provisions of this Agreement is held to be invalid or 

unenforceable, such invalidity or unenforceability shall not invalidate this Agreement as a 

whole, but this Agreement shall be construed as though it did not contain the particular 

provision held to be invalid or unenforceable and the rights of the parties shall be 

construed and enforced only to such extent as shall be permitted by applicable law. 

4. Signatures. This Agreement may be executed in any number of 

counterparts, each of which shall be an original, but all of which taken together shall 

constitute one and the same agreement. Delivery of an executed counterpart of this 

Agreement by facsimile or other electronic method of transmission shall have the same 

force and counterpart of any such agreement by facsimile or other electronic method of 

transmission shall also deliver an original executed counterpart, but the failure to do so 

shall not affect the validity, enforceability or binding effect of this Agreement. 

5. Collateral Agent. Each Secured Party, on behalf of itself [and any of its 

affiliates] hereby irrevocably appoints [____________] (in such capacity, the “Collateral 

Agent”) to serve as collateral agent under this Agreement and with respect to the liens, 

encumbrances, pledges and security interests granted hereunder, for the purpose of 

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protecting the Secured Parties’ interest in the satisfaction of the Grantors’ obligation to 

make certain payments to the Settlement Fund as set forth in Paragraph V.C of the 

Stipulated Order. Each Secured Party authorizes the Collateral Agent to take such 

actions as agent on its behalf and the Secured Parties and to exercise all powers under this 

Agreement related to the administration, validity, perfection and enforcement of the liens, 

encumbrances, pledges and security interests granted herein, including without limitation, 

the granting of any consent with respect to the Collateral and liens, encumbrances, 

pledges and security interests hereunder, and to exercise such powers as are reasonably 

incidental thereto. In addition, to the extent required under the laws of any jurisdiction 

each Secured Party hereby grants to the Collateral Agent any required powers of attorney 

to execute and enforce this Agreement governed by the laws of such jurisdiction on such 

Secured Party’s behalf. Without limiting the foregoing, each Secured Party hereby 

authorizes the Collateral Agent to execute and deliver, and to perform its obligations 

under this Agreement and to exercise all rights, powers and remedies that the Collateral 

Agent may have under this Agreement. No Secured Party shall have any right 

individually to realize upon any of the Collateral, it being understood and agreed that all 

powers, rights and remedies under this Agreement may be exercised solely by the 

Collateral Agent on behalf of the Secured Parties in accordance with the terms thereof. In 

its capacity, the Collateral Agent is a “representative” of the Secured Parties within the 

meaning of the term “secured party” as defined in the New York UCC, as applicable. The 

Secured Parties irrevocably authorize the Collateral Agent, at its option and in its 

discretion, to subordinate any lien, encumbrance, pledge or security interest on any 

property granted to or held by the Collateral Agent under this Agreement. The Secured 

Parties hereby irrevocably authorize the Collateral Agent, at its option and in its sole 

discretion, to release any Liens granted to the Collateral Agent on any Collateral. 

6. Release. 

A. The Collateral, other than any right title and interest in any Priority Review Voucher 

(the “Non PRV Collateral”) shall be automatically released from the liens, encumbrances 

and security interests in favor of the Secured Parties created hereby upon the earlier of (i) 

the date the Grantors’ aggregate payments to the Settlement Fund pursuant to Paragraph 

V.C.1. of the Stipulated Order equal $15 million (ii) the five (5) year anniversary of the 

date the Stipulated Order is entered in the Action, or (iii) the date the Grantors’ aggregate 

payments to the Settlement Fund pursuant to Paragraph V.C.1 and V.C.2 of the 

Stipulated Order equal $30 million. Concurrently with such release, this Agreement shall 

terminate with respect to such Non PRV Collateral, and all obligations of each Grantor to 

the Secured Parties hereunder with respect to such Non PRV Collateral shall terminate, 

all without delivery of any instrument or performance of any act by any party. The 

Secured Parties shall promptly deliver such documents as such Grantor may reasonably 

request to evidence the termination of this Agreement and the related liens, 

encumbrances and security interest with respect to such Non PRV Collateral.

B. All Collateral constituting any Priority Review Voucher shall be automatically 

released from the liens, encumbrances and security interests in favor of the Secured 

Parties created hereby upon the earlier of (i) the date the Grantors’ aggregate payments to 

Case 1:20-cv-00706-DLC Document 753-1 Filed 12/07/21 Page 38 of 41
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the Settlement Fund pursuant to Paragraphs V.C.1 and V.C.2 of the Stipulated Order 

equal $30 million or (ii) the ten (10) year anniversary of the date the Stipulated Order is 

entered in the Action. Concurrently with such release, this Agreement shall terminate, 

and all obligations of each Grantor to the Secured Parties hereunder shall terminate, all 

without delivery of any instrument or performance of any act by any party. The Secured 

Parties shall promptly deliver such documents as such Grantor may reasonably request to 

evidence such termination in full of the interests hereunder. 

7. Notices

All notices, requests and demands to or upon the respective parties hereto to be effective 

shall be in writing (including by electronic mail), and, unless otherwise expressly 

provided herein, shall be deemed to have been duly given or made when delivered, or 

three (3) business days after being deposited in the mail, postage prepaid, or, in the case 

of electronic mail notice, when received, addressed as follows in the case of the Grantors 

and each of the Secured Parties, or to such other address as may be hereafter notified by 

the respective parties hereto: 

[Add notice information for each party below] 

[_________] 

[________] 

[Remainder of Page Intentionally Left Blank] 

[Signature Pages to Follow] 

 

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IN WITNESS WHEREOF, the Grantors and Secured Parties have hereunto set their hands this 

_____ day of December, 2021. 

___________________________________ Date: _________ 

Elinor R. Hoffmann 

Chief 

Antitrust Bureau 

Office of the New York State Attorney General 

FOR PLAINTIFF STATE OF NEW YORK 

____________________________________ Date: _________ 

Michael D. Battaglia 

Deputy Attorney General 

California Department of Justice 

FOR PLAINTIFF STATE OF CALIFORNIA 

____________________________________ Date: _________ 

Richard S. Schultz 

Assistant Attorney General 

Antitrust Bureau 

Office of the Illinois Attorney General 

FOR PLAINTIFF STATE OF ILLINOIS 

____________________________________ Date: _________ 

K. D. Sturgis 

Special Deputy Attorney General 

Jessica V. Sutton 

Special Deputy Attorney General 

North Carolina Department of Justice 

FOR PLAINTIFF STATE OF NORTH CAROLINA 

____________________________________ Date: _________ 

Beth A. Finnerty 

Assistant Chief 

Antitrust Section 

Office of the Ohio Attorney General 

FOR PLAINTIFF STATE OF OHIO 

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____________________________________ Date: _________ 

Joseph S. Betsko 

Senior Deputy Attorney General 

Pennsylvania Office of Attorney General 

FOR PLAINTIFF COMMONWEALTH OF PENNSYLVANIA 

____________________________________ Date: _________ 

Tyler T. Henry 

Assistant Attorney General 

Office of the Attorney General of Virginia 

FOR PLAINTIFF COMMONWEALTH OF VIRGINIA 

____________________________________ Date: _________ 

Averill Powers 

Chief Executive Officer of Phoenixus AG and General Counsel of Vyera Pharmaceuticals, LLC 

FOR PHOENIXUS AG AND VYERA PHARMACEUTICALS, LLC 

____________________________________ Date: _________ 

Steven A. Reed 

Morgan, Lewis & Bockius LLP 

COUNSEL FOR PHOENIXUS AG AND VYERA PHARMACEUTICALS, LLC 

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