Exhibit
10.12


 


DRAFT FOR DISCUSSION PURPOSES ONLY


September 24, 2003


 


RUSH PAYMENTS AGREEMENT


 


REFERENCE IS
MADE to (i) the License Agreement effective 
as of September     , 2003, by and between RUSH-PRESBYTERIAN-ST.
LUKE’S MEDICAL CENTER, a
[                ]
and having its principal office at [1650 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      , 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 $200,000 license fee set forth in Section 5.1 of the
Rush/Acorda License, each of Acorda and Elan shall be responsible for fifty
percent (50%) of such license fee. Accordingly, no later than five (5) Business
Days prior to the date set forth in Section 5.1 of the Rush/Acorda
License, Elan shall pay Acorda US$100,000 as Elan’s 50% 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 fifty percent (50%) 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 no later than twenty (20)
days after achievement of the applicable milestone event, and (y) Elan shall
pay Acorda an amount equal to fifty percent (50%) of the applicable milestone
payment no later than


 

















 


twenty five (25) days after achievement of the applicable milestone
event as Elan’s share of such payment; and


 


(b)                                 Elan
shall be responsible for one hundred percent (100%) 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 no
later than twenty (20) days after achievement of the applicable milestone event
and Elan shall pay Acorda an amount equal to one hundred percent (100%) of the
applicable milestone payment no later than twenty five (25) days after
achievement of the applicable milestone event.


 


3.                                       With
respect to the royalties payable under Section 5.3.1 (a) and (b) of the
Rush/Acorda License, Acorda and Elan have agreed that they shall each be
responsible for fifty percent (50%) of such royalties.  Acorda and Elan have implemented such
agreement by eliminating from the Elan/Acorda License the payment by Acorda to
Elan of royalties previously payable by Elan to Rush pursuant to the Rush/Elan
Agreements (as defined in the Side Agreement). 
In addition, (a) during the term of the Rush/Acorda License, Acorda
shall pay to Elan an additional  royalty
of one-half of one percent (.5%) of NSP of the Product sold outside the US; and
(b) commencing in the first calendar quarter that begins after termination or
expiration of Acorda’s royalty obligations to Rush under the Rush/Acorda
License, Acorda shall pay Elan an additional royalty equal to fifty percent
(50%) of the royalty that would have been payable by Acorda to Rush under
Section 5.3.1 of the Rush/Acorda License on such sales of Product (if not
for such termination or expiration) (collectively, 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 one quarter of
one percent (.25%) 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
5.6.5 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


 


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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 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 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:

  	
  /s/ Ron
  Cohen

  	
   

  	
   

  
	
   

  	
  Name: Ron Cohen

  	
   

  
	
   

  	
  Title:   President and Chief
  Executive Officer

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  ELAN CORPORATION, PLC.

  	
   

  
	
   

  	
   

  	
   

  
	
  MONKSLAND HOLDING BV

  	
   

  
	
   

  	
   

  	
   

  
	
  By:

  	
  /s/ Pieter
  Bosse

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  By:

  	
  /s/ Klaas
  vanBlanken

  	
   

  	
   

  
	
   

  	
  Name: Monksland Holding BV

  	
   

  
	
   

  	
  Title: Proxyholder

  	
   

  



 


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EXHIBIT A


RUSH/ACORDA LICENSE


 


5