Exhibit
10.7


 


Execution
Copy


 


 


TERMINATION
AND ASSIGNMENT AGREEMENT


 


 


ELAN
CORPORATION, PLC


 


 


ELAN
INTERNATIONAL SERVICES, LTD.


 


 


ACORDA THERAPEUTICS, Inc.


 


 


MS
RESEARCH AND DEVELOPMENT CORPORATION


 

















 


INDEX


 


	
  CLAUSE 1

  	
  DEFINITIONS

  
	
   

  	
   

  
	
  CLAUSE 2

  	
  TERMINATION OF THE MS R&D AGREEMENTS

  
	
   

  	
   

  
	
  CLAUSE 3

  	
  ASSIGNMENTS

  
	
   

  	
   

  
	
  CLAUSE 4

  	
  REPRESENTATIONS, WARRANTIES, COVENANTS,
  CONFIRMATIONS AND INDEMNITIES

  
	
   

  	
   

  
	
  CLAUSE 5

  	
  INTELLECTUAL PROPERTY

  
	
   

  	
   

  
	
  CLAUSE 6

  	
  RIGHTS RELATED TO
  SECURITIES

  
	
   

  	
   

  
	
  CLAUSE 7

  	
  SALE OF EIS SHARES
  AND COMPLETION

  
	
   

  	
   

  
	
  CLAUSE 8

  	
  CONFIDENTIALITY

  
	
   

  	
   

  
	
  CLAUSE 9

  	
  WAIVER OF ACCRUED RIGHTS/MUTUAL
  RELEASES

  
	
   

  	
   

  
	
  CLAUSE
  10

  	
  GENERAL

  



 


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THIS TERMINATION AND ASSIGNMENT
AGREEMENT made
this    day of September 2003 (this “Agreement”)


 


AMONG:-


 


(1)                                 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 Corp”);


 


(2)                                 ELAN INTERNATIONAL
SERVICES, LTD., an
exempted limited liability company incorporated under the laws of Bermuda, and
having its registered office at Clarendon House, 2 Church St., Hamilton,
Bermuda, a wholly owned subsidiary of Elan Corp, (“EIS”);


 


(3)                                 ACORDA
THERAPEUTICS, Inc., a Delaware corporation having its principal place of
business at 15 Skyline Drive, Hawthorne, NY 10532, United States of America (“Acorda”); and


 


(5)                                 MS RESEARCH AND DEVELOPMENT
CORPORATION,  a Delaware corporation having its
principal place of business at 15 Skyline Drive, Hawthorne, NY 10532, United
States of America (“MS R&D”).


 


RECITALS


 


A.                                   Certain of the Parties entered into
various agreements whereby Elan Corp, EIS and Acorda established MS R&D,
and Elan Corp and Acorda each licensed certain intellectual property to MS
R&D for a specified field of use. 
Specifically:


 


(i)                                     EIS, Acorda and MS R&D entered into a
Subscription and Stockholders’ Development Agreement dated as of April 21, 1998
(the “SSDA”);


 


(ii)                                  Elan Corp, Acorda and MS R&D entered
into a License and Supply Agreement dated as of April 21, 1998 (the “Elan License Agreement”);


 


(iii)                               Acorda, EIS and MS R&D entered into
an Agreement dated as of April 21, 1998 (the “MS
R&D License Agreement”);


 


(iv)                              EIS, Acorda and MS R&D entered into a
Registration Rights Agreement dated as of April 21, 1998 (the “MS R&D Registration Rights Agreement”).


 


B.                                     The SSDA and, the MS R&D License
Agreement are together defined in this Agreement as the “MS R&D Agreements”.


 


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C.                                     The Parties wish to (i) terminate in full
the MS R&D Agreements, (ii) assign the Elan License Agreement and the MS
R&D Intellectual Property to Acorda, and (ii) set forth their agreement in
relation to certain other matters, as set forth below.


 


D.                                    Simultaneously with the execution of this
Agreement:


 


(i)                                     Acorda, Elan and EIS are entering into an
Agreement (the “Securities Amendment
Agreement”) to set forth their agreement in relation to certain
matters relating to: (i) the securities of Acorda held by Elan, (ii) Elan’s
obligations (or lack thereof) with respect to future payments to or in respect
of its relationship with Acorda and MS R&D, (iii) amendments to certain
finance documents entered into between the Parties; and (iv) Board observation
rights in favor of EIS; and


 


(ii)                                  immediately following the effectiveness
of the Assignment, Elan Corp and Acorda are entering into (i) an Amended and
Restated License Agreement and (ii) a Supply Agreement, pursuant to which,
among other things, the parties thereto are amending and restating the Elan
License Agreement (collectively the “Restated
Elan License”).


 


IN CONSIDERATION OF THE MUTUAL COVENANTS CONTAINED HEREIN,
AND OTHER GOOD AND VALUABLE CONSIDERATION, THE RECEIPT AND ADEQUACY OF WHICH
ARE HEREBY ACKNOWLEDGED, IT IS HEREBY AGREED AS FOLLOWS:


 


1                                          DEFINITIONS


 


Capitalized
terms used in this Agreement shall have the same meanings assigned to them in
the MS R&D Agreements, unless such
terms are expressly defined to the contrary in this Agreement.


 


“Acorda Know-How”
shall mean Acorda Know-How and Acorda Project Know-How (as such terms are
defined in the MS R&D License Agreement).


 


“Acorda Patents”
shall mean Acorda Patent Rights and Acorda Project Patent Rights (as such terms
are defined in the MS R&D License Agreement).


 


“Affiliate” shall
mean any corporation or entity controlling, controlled or under the common
control of any other corporation or entity. 
For the purpose of this definition, (i) “control” shall mean direct or
indirect ownership of fifty percent (50%) or more of the equity, partnership
interest or voting stock of another entity; and (ii) MS R&D shall not be an
Affiliate of Elan Corp, EPIL II or EIS.


 


“Assignments” shall mean the assignments
provided for under Clause 3.


 


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“Assignment Consideration” shall mean the amount set forth
in Clause 3.


 


“Balance Sheet” shall mean the unaudited balance sheet of MS
R&D as of the Balance Sheet Date, as set forth in Schedule 4.3.


 


“Balance Sheet Date” shall mean June 30, 2003.


 


 “Distribution” shall mean the pro-rata
distribution of the Assignment Consideration to be declared and paid by MS
R&D ratably to the stockholders thereof in accordance with Schedule 4.10.


 


“Effective Date” shall mean the date of this Agreement.


 


“EIS
Shares” shall
mean the 1,279 shares of MS R&D Common Stock owned by EIS as of the
Effective Date.


 


“Elan” shall mean Elan Corp and its Affiliates.


 


“Elan
Know-How” shall
have the meaning set forth in the Restated Elan License.


 


“Elan
Patents” shall
mean “Elan Patent Rights” (as such term is defined in the Restated Elan
License).


 


“EPIL
II” shall mean
Elan Pharmaceuticals Investment II, Ltd. an exempted limited liability company
incorporated under the laws of Bermuda, a qualified special purpose entity of
Elan Corp.


 


“EPIL Shares” shall mean the 2,985 shares of
MS R&D Common Stock owned by EPIL II as of the Effective Date.


 


“Force Majeure”
shall mean causes beyond a Party’s reasonable control, including, without
limitation, acts of God, fires, strikes, acts of war, or intervention of a
governmental authority.


 


 “MS R&D Common Stock” shall mean the
common stock, par value $0.001 per share, of MS R&D.


 


“MS
R&D Debt”
shall mean the estimated outstanding amount of indebtedness owed by MS R&D
to Acorda as of the Effective Date and incurred subsequent to the Balance Sheet
Date pursuant to the SSDA, as set forth on Schedule 2.4.


 


“MS R&D Intellectual Property” shall mean Newco Know How and Newco Patent Rights as
defined in the MS R&D License Agreement.


 


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“Party”
shall mean Elan Corp, EIS, Acorda or MS R&D, as the case may be, and “Parties” shall mean all such parties
together.


 


“Pro
Forma Balance Sheet”
shall mean the unaudited pro forma balance sheet attached as Schedule 4.3,
giving pro forma effect as of the Balance Sheet Date to the purchase of the EIS
Shares and the MS R&D Debt .


 


“Project” shall have the meaning set forth in the Elan License
Agreement.


 


“Regulatory Filings” shall mean the regulatory
filings as set out in Schedule3.6.


 


“Rush” shall mean Rush-Presbyterian-St. Luke’s Medical Center.


 


“Rush Agreements” shall mean (i) the License Agreement by and
between Acorda and Rush dated as of the Effective Date and (ii) the Side
Agreement dated as of the Effective Date by and among Elan Corp, Acorda and Rush and (iii) the Rush Payment Agreement.


 


“Rush Payments Agreement” shall mean the Rush Payments Agreement dated as of
the Effective Date by and among Elan Corp and Acorda.


 


“Territory” shall mean all of the countries of the world.


 


“United
States Dollar” and
“US$” and “$” shall mean the lawful currency of the
United States of America.


 


2.                                       TERMINATION OF THE MS R&D AGREEMENTS


 


2.1.                              Subject to the provisions of Clause 2.2
and 2.3 hereof, the Parties hereby agree to terminate the MS R&D
Agreements, including without limitation, those provisions expressly stated to
survive termination, in each case with
effect from the Effective Date.


 


All the provisions of the MS R&D Agreements shall
terminate forthwith with effect from the Effective Date and be of no further
legal force or effect.


 


2.2                                 Notwithstanding anything contained herein
to the contrary, the Parties acknowledge that:


 


(i)                                     the provisions originally set forth in
Clause 4.5 of the SSDA (the “Co-sale Rights”),
as now set out in full in Schedule 2.2, shall continue in full force and effect
as between EPIL II and Acorda as holders of certain shares in MS R&D;


 


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(ii)                                  if and to the extent (A) Elan becomes the
owner of shares of MS R&D Common Stock and (B) Acorda is “the party who is
not the Selling Stockholder” for purposes of Clause 4.4 of the SSDA, the
provisions originally set forth in Clause 4.4 of the SSDA (the “Rights of First Offer”), as now set out in
full in Schedule 2.2, shall continue in full force and effect with respect to
any proposed Transfer (as now defined in Schedule 2.2) of such shares of MS
R&D Common Stock by Elan; and


 


(iii)                               the Parties agree that EPIL II is a third
party beneficiary of this Clause 2.2 solely as it relates to the Co-Sale Rights,
as the holder of the EPIL Shares.


 


2.3                                 For the avoidance
of doubt and without prejudice to the generality of the  foregoing Clause 2.1, the Parties hereby acknowledge and agree as follows as of the Effective Date:


 


2.3.1                        EIS Director:


 


(a)                                  by prior agreement of the Parties, the
EIS Director, Mike Sember, previously resigned from the board of directors of
MS R&D;


 


(b)                                 by prior agreement of the Parties, EIS
forfeited the right to designate a director to the board of directors of MS
R&D and thereafter no longer had designees on, or the right to designate a
director to, the board of directors of MS R&D;  and


 


(c)                                  for the avoidance of doubt, EIS confirms
that prior to the Effective Date, it did not at any time assign the right to
designate a director to the board of directors of MS R&D.


 


2.3.2                        the nominees of Elan on the Committee (as
defined in the Elan License Agreement) have been removed from the Committee by
Elan and Elan shall no longer have the right to designate a member of the
Committee;


 


2.3.3                        with effect from the Effective Date, Elan
shall not have any rights in or to the Acorda Patents, the Acorda Know-How,
and/or any other patents, know-how or any other intellectual property rights
whatsoever of Acorda;


 


2.3.4                        Elan shall terminate or shall cause to be
terminated any and all research and development work being conducted under the
MS R&D Agreements;


 


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2.3.5                        Elan shall terminate or cause to be
terminated any and all technical services and assistance being conducted under
the MS R&D Agreements;


 


2.3.6                        For the avoidance of doubt, the Parties
agree that Elan shall not have any obligation to provide Additional Funding,
working capital, research or development funding, or other funding or financing
of any nature to MS R&D, whether under the MS R&D Agreements, the Elan
License Agreement, or otherwise;


 


2.3.7                        For the further avoidance of doubt, the
Parties agree that Elan has had no obligation to provide Additional Funding,
working capital, research or development funding, or other funding, or other
financing or financing of any nature to MS R&D following 30 June 2002;


 


2.3.8                        Elan shall not have any obligation to pay
any milestone payment or make any milestone investment to or in MS R&D or
Acorda or any of their Affiliates whether relating to the Project, the achievement of any objectives set
forth therein or otherwise, except as set forth in the Rush Payments Agreement.


 


2.4                                 Monies owing by MS
R&D to Acorda and Elan 


 


2.4.1                        Each of the Parties acknowledges and
agrees with the other Parties that, as of the Effective Date, no monies are
owed or are refundable by any of the Parties to any other Party pursuant to the
MS R&D Agreements or the Elan License Agreement, other than the MS R&D
Debt and the amount owing to Elan as set forth on Schedule 2.4.


 


2.4.2                        The Parties acknowledge and agree that MS
R&D shall pay to Elan the amount owing to Elan (as set out in Schedule 2.4)
prior to the Effective Date.


 


2.4.3                        As of the Effective Date, the MS R&D
Debt shall be hereby deemed forgiven and extinguished in all respects by
Acorda.


 


2.5                                 Franchise Taxes


 


Each of the Parties further acknowledges and agrees
with the other Parties that from and after the Effective Date, MS R&D shall
be solely responsible for all fees and taxes, including without limitation,
franchise taxes owing to the State of Delaware, and all service fees, including
without limitation, corporate service fees for corporate filings or


 


8

















 


representation as agent for service of process within
or without of the State of Delaware.


 


3                                          ASSIGNMENTS


 


In consideration of the payment of $11,541,347 by
Acorda to MS R&D (the “Assignment
Consideration”), the receipt of which is hereby acknowledged by MS
R&D, the following Assignments shall occur with effect from the Effective
Date:


 


3.1                               Assignment of MS R&D Intellectual
Property and Regulatory Filings


 


MS R&D, as legal and
beneficial owner, hereby irrevocably absolutely and unconditionally assigns,
transfers and conveys to Acorda, and Acorda hereby accepts from MS R&D, all
of MS R&D’s right, title and interest in and to the MS R&D Intellectual
Property including the MS R&D Patent Rights, and the Regulatory Filings.


 


3.2                               Assignment and assumption of Elan
License


 


MS R & D hereby irrevocably,
absolutely and unconditionally assigns, transfers and conveys to Acorda, and
Acorda hereby accepts from MS R & D, the Elan License Agreement and all of
MS R & D’s rights and interest throughout the Territory in and under the
Elan License Agreement.  Acorda agrees
with Elan and MS R&D to assume the rights, interest, obligations, duties
and liabilities of MS R&D under the Elan License Agreement.


 


3.3                               Elan consent to Assignments


 


Elan consents to and
accepts the assignment referred to in Clauses 3.1 and 3.2 by MS R&D to
Acorda and the assumption by Acorda of MS R&D’s rights, interest,
obligations, duties and liabilities under the Elan License Agreement.


 


3.4                                 Restated Elan License


 


The Parties acknowledge and agree that immediately
following the Assignments, Elan Corp and Acorda will execute and deliver the
Restated Elan License, at which time the Elan License Agreement will be
superceded by the Restated Elan License.


 


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3.5                                 Advisory Fees


 


Each of the Parties confirms to the other that such
Party has not incurred nor shall become liable for any advisory, appraisal or
other fee or commission in connection with the transactions contemplated by
this Agreement, except that MS R & D intends to pay a fee to Standard &
Poor’s Corporate Value Consulting, a division of the McGraw-Hill Companies,
Inc..


 


4                  REPRESENTATIONS, WARRANTIES, COVENANTS,
CONFIRMATIONS AND INDEMNITIES


 


4.1                                 MS R&D
Capitalization:


 


The Parties confirm that, as of the Effective Date,
the capitalization of MS R&D is as set out in Schedule 4.1.


 


4.2                                 Sub-licenses:


 


MS R&D represents and
warrants to the other Parties that it has not granted any sub-licenses or any
other rights of any nature to any third parties pursuant to the Elan License
Agreement or the MS R&D License Agreement.


 


4.3                                 Balance Sheet:


 


4.3.1                        MS R&D and Acorda represent and
warrant to Elan that the Balance Sheet is accurate and that, since the Balance
Sheet Date, there has been no material adverse change in the financial position
or prospects of MS R&D except for the MS R&D Debt which amount is to be
forgiven as of the Effective Date as set out in Clause 2.4 above.


 


4.3.2                        MS R&D and Acorda represent and
warrant to Elan that there are no other liabilities of MS R&D other than as
reflected or reserved against on the Balance Sheet and other than as described
in Clause 4.3.1 above.


 


4.3.3                        MS R&D and Acorda represent and
warrant to Elan that the Pro Forma Balance Sheet accurately reflects the pro
forma effect on the Balance Sheet as of the Balance Sheet Date of the purchase
of the EIS Shares and the MS R&D Debt.


 


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4.4                                 Third party agreements /
Orders / Claims:


 


4.4.1                        Each of the Parties confirms to the other
Parties hereto that, as of the Effective Date, to its actual knowledge, MS
R&D is not a party to, or bound by, any judgment, order, decree or other
directive of or stipulation with any court or any governmental or regulatory
authority.


 


4.4.2                        Each of the Parties confirms to the other
Parties that MS R&D is not a party to, or bound by, nor is Acorda, or any
of its Affiliates, on behalf of MS R&D, nor is Elan or any of its
Affiliates, on behalf of MS R&D, a party to or bound by, any agreement with
any third party, except for the MS R&D Agreements, other than as set out in
Schedule 4.4.2 (“MS R&D Third Party
Agreement(s)”).


 


4.4.3                        Each of the Parties confirms to the other
Parties hereto that, as of the Effective Date, to its actual knowledge, there
are no claims, suits or proceedings pending or threatened against MS R&D.


 


4.4.4                        Elan represents and warrants to MS
R&D and Acorda that none of Elan, EIS nor any of their Affiliates has any
agreement with EPIL that is in conflict with or inconsistent with this
Agreement or the transactions contemplated hereby.


 


4.5                                 EIS Shares


 


4.5.1                        Each of Elan and EIS represent, warrant
and confirm to the other Parties that:


 


(1)                                  EIS is the legal and beneficial owner of
the EIS Shares;


 


(2)                                  EIS has good and valid title to all of
the EIS Shares free and clear of all pledges, liens, encumbrances or other
claims or charges; and


 


(3)                                  EIS has the unrestricted power and
authority to transfer the EIS Shares to Acorda in accordance with the terms of
this Agreement.


 


4.5.2                        For the avoidance of doubt, the Parties
agree that the EIS Shares and the EPIL Shares represent all of the equity or
securities of MS R & D to which Elan or any of its Affiliates was or, as of
the Effective Date, is entitled to under any of the MS R & D Agreements.


 


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4.6                                 Regulatory Applications:


 


Each of the Parties confirms to the other Parties
that, prior to and as of the Effective Date, no Regulatory Filings have been
filed by MS R&D or by any Party with any government authority in any part
of the world for any product in relation to the Project (as defined in the Elan
License Agreement), except as set out in Schedule 4.6.


 


4.7                                 Exclusion of warranties
/ liability:


 


EXCEPT
AS EXPRESSLY PROVIDED IN THIS AGREEMENT, ALL OTHER WARRANTIES, CONDITIONS OR
REPRESENTATIONS, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, ARE HEREBY
EXPRESSLY EXCLUDED BY THE PARTIES.


 


NOTWITHSTANDING
ANYTHING TO THE CONTRARY IN THIS AGREEMENT, NO PARTY SHALL BE LIABLE TO ANY
OTHER PARTY BY REASON OF ANY REPRESENTATION OR WARRANTY, CONDITION OR OTHER
TERM OR ANY DUTY OF COMMON LAW, OR UNDER THE EXPRESS TERMS OF THIS AGREEMENT,
FOR ANY CONSEQUENTIAL SPECIAL OR INCIDENTAL OR PUNITIVE LOSS OR DAMAGE (WHETHER
FOR LOSS OF CURRENT OR FUTURE PROFITS, LOSS OF ENTERPRISE VALUE OR OTHERWISE)
AND WHETHER OCCASSIONED BY THE NEGLIGENCE OF THE RESPECTIVE PARTIES, THEIR
EMPLOYEES OR AGENTS OR OTHERWISE.


 


4.8                                 Indemnity :


 


4.8.1                        The Parties acknowledge and agree that
pursuant to Clause 3.2, Acorda has been assigned and has assumed the
indemnification obligations of MS R&D under the Elan License Agreement
which, as of the Effective Date, are included in the Restated Elan License.


 


4.8.2                        Prior to the Effective Date, Acorda shall
furnish Elan Corp with copies of all policies of comprehensive general
liability insurance and/or other insurance coverage (the “Policies”) which it holds in respect of any
clinical trials as set out in Schedule 1 that were carried out by Acorda on
behalf of MS R&D.


 


Acorda shall be obliged to maintain the Policies for a
period of 5 years from the Effective Date, maintaining at all times at a
minimum, the levels of coverage evidenced in the Policies, noting Elan Corp as
an additional insured, and shall, at the reasonable request of Elan Corp from
time to time, furnish to Elan Corp evidence that all premiums or other payments
on the Policies are fully paid up and the Policies are subsisting. Acorda shall
require


 


12

















 


the consent of Elan Corp to make any modification to
the Policies or to take any action to terminate the Policies, which consent
shall not be unreasonably withheld.


 


4.9              Organization and
authority:  


 


Each Party hereto represents and warrants that with
respect to such Party:


 


4.9.1                        it is a corporation duly organized and
validly existing under the laws of its respective jurisdiction of incorporation
or organization and such Party has full right, power and authority to enter
into this Agreement and each agreement, document and instrument to be executed
and delivered by it pursuant to or as contemplated by this Agreement and to
carry out the transactions contemplated hereby and thereby;  the execution and delivery of this Agreement
and the performance of such Party’s obligations hereunder have been duly
authorized by all necessary action of such Party including, if required, by its
stockholders, and its board of directors; this Agreement and each agreement,
document and instrument to be executed and delivered by such Party hereto
pursuant to this Agreement constitute, or will when executed and delivered
constitute, valid and binding obligations of such Party, enforceable in
accordance with their respective terms, subject to applicable bankruptcy,
insolvency, reorganization, moratorium and similar laws affecting creditors’
rights generally, and subject, as to enforceability, to general principles of
equity (regardless of whether enforcement is sought in a proceeding, at law or
in equity);


 


4.9.2                        the execution, delivery, and performance
by each Party of this Agreement and each such agreement, document and
instrument contemplated by this Agreement to which it is a party (i) do not
violate any provision of the certificate or articles of incorporation or other
similar governing instruments or by-laws of such Party; (ii) do not and will
not result in a breach of, constitute a default under, accelerate any
obligation under, or give rise to a right of termination of any indenture or
loan or credit agreement or any other agreement, contract, instrument,
mortgage, deed of trust, lien, lease, permit, authorization, order, writ,
judgment, injunction, decree, determination or arbitration award to which such
Party is a party or by which any material property of such Party is bound or
affected, which would have material adverse effect on the business or operations
of such Party and its subsidiaries, taken as a whole.


 


13

















 


4.10                           Payment of Distribution; Negative
Covenant:


 


MS R&D agrees that it shall pay, and Acorda agrees
to cause MS R&D to pay, the Distribution in the aggregate amount of the
Assignment Consideration, in the pro rata amounts and to the parties set forth
on Schedule 4.10 as soon as practicable after the Effective Date. 
MS R&D and Acorda hereby agree that, until payment of the
Distribution, MS R&D shall not, and Acorda and its Affiliates shall not
cause MS R&D to, issue any securities or incur any indebtedness without the
prior written consent of EIS.


 


4.11                           Representation and Warranties as of
the Effective Date:


 


Except where expressly stated otherwise, each of the
representations and warranties in this Agreement are made as of the Effective
Date.


 


5                                          INTELLECTUAL PROPERTY


 


5.1                                 Ownership:


 


On and following the Effective Date:


 


5.1.1                        For the avoidance of doubt, the Elan
Patents and the Elan Know-How shall remain the sole and exclusive property of
Elan.


 


5.1.2                        For the avoidance of doubt, the Acorda
Patents and the Acorda Know-How shall remain the sole and exclusive property of
Acorda.


 


5.1.3                        All MS R&D Intellectual Property
shall be subject to the Assignments.


 


6                                          RIGHTS RELATED TO SECURITIES


 


6.1                                 Nothing contained herein shall constitute
a waiver of any right of EPIL II or EIS or any of their respective successors
and assigns with respect to their respective ownership of securities in Acorda
under any agreements of any kind in existence with Acorda with respect thereto,
which agreements shall remain unmodified and in full force and effect, except
as set forth in the Securities Amendment Agreement.


 


7                                          SALE OF EIS SHARES AND COMPLETION


 


7.1                                 Subject to the terms of this Agreement,
on the Effective Date, EIS shall sell as legal and beneficial owner of, and
Acorda shall purchase, free from


 


14

















 


all liens, charges, security interests and other
encumbrances and together with all rights now or hereafter attaching to them,
the EIS Shares, for a purchase price per share equal to $0.001 per share, the
par value thereof (the “Per Share
Consideration”), or an aggregate price to be paid by Acorda to EIS
for the EIS Shares in the total amount of US$1.28, which giving effect to the
other transactions contemplated by this Agreement, the Parties agree is the
fair value thereof.


 


7.2                                 Elan and Acorda shall take or (to the
extent that the same is within its powers) cause to be taken the following
steps prior to or at directors meetings of MS R&D, or such other meetings,
as appropriate:


 


7.2.1                        on the Effective Date, the delivery by
EIS to Acorda of a stock transfer form or stock power in respect of the EIS
Shares duly executed by EIS and endorsed in blank together with the related
share certificates;


 


7.2.2                        as soon as practicable after the
Effective Date, the modification, as appropriate, by board resolutions of MS
R&D of matters such as the removal of EIS as book keeper for MS R&D,
the removal of EIS representatives as authorized signatories of MS R&D’s
bank account, and any other related matters whatsoever; and


 


7.2.3                        any other steps required by this
Agreement.


 


7.3                                 In the
event that Elan has the right and power to dispose of the EPIL Shares (other
than through a subsidiary that is not consolidated on Elan Corp’s financial
statements under U.S. GAAP), Elan shall promptly notify Acorda in writing.  Within ten (10) Business Days after receipt
of such notice from Elan, Acorda shall have the right and option to purchase
the EPIL Shares from Elan for the Per Share Consideration (in the total amount
of $2.99) at a closing to take place within a reasonable time thereafter.  The Parties agree that the Per Share
Consideration is the fair value for the EPIL Shares after giving effect to the
other transactions contemplated by this Agreement.


 


8                                          CONFIDENTIALITY


 


8.1                                 Confidentiality:


 


8.1.1                        The Parties agree that it may be
necessary pursuant to this Agreement, from time to time, to disclose to each
other confidential and proprietary information, including without limitation,
inventions, trade secrets, specifications, designs, data,


 


15

















 


know-how and other proprietary information, processes,
services and business of the disclosing Party.


 


The foregoing together with the terms of this
Agreement shall be referred to collectively as “Additional Confidential Information”.


 


The Parties also agree that it may have been necessary
to disclose to each other Confidential Information (as defined in the SSDA)  pursuant to the MS R&D Agreements and
the Elan License Agreement.


 


Together Additional Confidential Information and
Confidential Information shall be referred to collectively as “Proprietary Information”.


 


8.1.2                        Save as otherwise specifically provided
herein, and subject to Clause 8.2 and 8.3, each Party shall disclose
Proprietary Information of another Party only to those employees,
representatives and agents requiring knowledge thereof in connection with fulfilling
the Party’s obligations under this Agreement, and not to any other third party.


 


Each Party further agrees to inform all such
employees, representatives and agents of the terms and provisions of this
Agreement relating to Proprietary Information and their duties hereunder and to
obtain their agreement hereto as a condition of receiving Proprietary
Information.


 


Each Party shall exercise the same standard of care as
it would itself exercise in relation to its own confidential information (but
in no event less than a reasonable standard of care) to protect and preserve
the proprietary and confidential nature of the Proprietary Information
disclosed to it by another Party.


 


Each Party shall promptly, upon request of another
Party, return all documents and any copies thereof containing Proprietary
Information belonging to, or disclosed by, such Party, save that it may retain
one copy of the same solely for the purposes of ensuring compliance with this
Clause 8.


 


8.1.3                        Any breach of this Clause 8 by any person
informed by one of the Parties is considered a breach by the Party itself.


 


8.1.4                        Proprietary Information shall be deemed
not to include:


 


16

















 


(1)                                  information which is in the public
domain;


 


(2)                                  information which is made public through
no breach of this Agreement;


 


(3)                                  information which is independently
developed by a Party, as evidenced by such Party’s records;


 


(4)                                  information that becomes available to a
receiving Party on a non-confidential basis, whether directly or indirectly,
from a source other than another Party, which source did not acquire this
information on a confidential basis.


 


8.1.5                        The provisions relating to
confidentiality in this Clause 8 shall remain in effect for a period of 7 years
following the Effective Date of this Agreement.


 


8.1.6                        The Parties agree that the obligations of
this Clause 8 are necessary and reasonable in order to protect the Parties’
respective businesses, and each Party agrees that monetary damages may be
inadequate to compensate a Party for any breach by another Party of its
covenants and agreements set forth herein.


 


The Parties agree that any such violation or
threatened violation may cause irreparable injury to a Party and that, in
addition to any other remedies that may be available, in law and equity or
otherwise, each Party shall be entitled to seek injunctive relief against the
threatened breach of the provisions of this Clause 8, or a continuation of any
such breach by another Party, specific performance and other equitable relief
to redress such breach together with damages and reasonable counsel fees and
expenses to enforce its rights hereunder.


 


8.2                                 Announcements:


 


Subject to Clause 8.3, no announcement or public
statement concerning the existence, subject matter or any term of this
Agreement shall be made by or on behalf of any Party without the prior approval
of, if such statement is to be made by Elan or EIS, Acorda, and if such
statement is to be made by Acorda or MS R&D, Elan Corp, provided, however,
that such approval shall not be unreasonably withheld or delayed and shall not
be required if the reference to this Agreement has previously been approved by
the applicable Party.


 


The terms of any such announcement shall be agreed in
good faith by the Parties.


 


17

















 


8.3                                 Permitted Disclosures:


 


8.3.1                        A Party (the “Disclosing Party”) will be entitled to make an announcement or
public statement concerning the existence, subject matter or any term of this
Agreement, or to disclose Proprietary Information that the Disclosing Party is
required to make or disclose pursuant to:


 


(1)                                   a valid order of a court or governmental
authority provided that if the Disclosing Party becomes legally required to
make such announcement, public statement or disclosure hereunder, the
Disclosing Party shall give the other Parties prompt notice of such fact to
enable the other Parties to seek a protective order or other appropriate remedy
concerning any such announcement, public statement or disclosure.


 


The Disclosing Party shall fully co-operate with the
other Parties in connection with that other Party’s or Parties’ efforts to
obtain any such order or other remedy; or


 


(2)                                   any other requirement of law or any
securities or stock exchange, provided that to the maximum extent
allowable by such securities or stock exchange rules and regulations, the
Parties shall seek to maintain the confidentiality obligations set forth herein
and shall redact any confidential information set forth in such filings;


 


(3)                                   to governmental or other regulatory
agencies in order to obtain patents relating to Product, or to gain approval to
conduct clinical trials or to market Product, but such disclosure may be only
to the extent reasonably necessary to obtain such patents or authorizations; or


 


(4)                                   by Acorda to its consultants, Affiliates
and/or potential sublicensees for the research and development, manufacturing
and/or marketing of the Compound and/or Product (as defined in the Restated
Elan License) (or for such parties to determine their interests in performing
such activities) on the condition that such third parties agree to be bound by
the confidentiality obligations consistent with this Agreement;


 


18

















 


8.3.2                        Each of the Parties shall be entitled to
provide a copy of this Agreement (and any subsequent amendments hereto) and the
MS R&D Agreements to a potential third party purchaser in connection with
Clause 10.2.1(2); provided that the
relevant third party purchaser or assignee has entered into a confidentiality
agreement on terms no less protective than the terms of this Clause 8.


 


9                                          WAIVER OF ACCRUED RIGHTS/MUTUAL RELEASES


 


9.1                                 With effect from the Effective Date, each
Party and each of its Affiliates (“Releasor”):


 


9.1.2                        waives any accrued rights that Releasor
may have accrued against the other Parties and each of its Affiliates,
officers, directors, representative, agents and employees and the assigns and
successors in interest of any of the foregoing entities (“Releasees”), whether known or unknown,
foreseen or unforeseen, fixed or contingent, of any nature whatsoever from the
beginning of time to the Effective Date under the MS R&D Agreements; and


 


9.1.3                        fully and finally releases and discharges
the Releasees from any and all manner of actions, claims, promises, debts, sums
of money, demands, obligations, in law or in equity, directly or indirectly,
whether known or unknown, foreseen or unforeseen, fixed or contingent, of any
nature whatsoever that Releasor may have by reason of any act, omission,
matter, provision, cause or thing whatsoever from the beginning of time to the
Effective Date under the MS R&D Agreements.


 


9.2                                 For the avoidance of doubt the provisions
of this Clause 9 shall not in any way act as a waiver or release by any of the
Parties in respect of any of the provisions set forth in this Agreement.


 


10                                    GENERAL


 


10.1                           Governing law and
jurisdiction:


 


10.1.1                  This Agreement shall be governed by and
construed in accordance with the laws of the State of New York, without
regard to conflicts of law principles under the laws of the State of New York.


 


19

















 


10.1.2                  For the purposes of this Agreement, the
Parties submit to the nonexclusive jurisdiction of the State and Federal Courts
of New York.


 


10.2                           Assignment:


 


10.2.1                  Subject to Clause 10.2.2, this Agreement
shall not be assigned by any Party without the prior written consent of (i)
Elan Corp, if the Party seeking such assignment is Acorda or MS R&D, or
(ii) Acorda, if the Party seeking such assignment is Elan Corp or EIS, save
that any Party:


 


(1)                                  may assign this Agreement in whole or in
part and delegate its duties hereunder to its Affiliate or Affiliates without
such consent; and


 


(2)                                  may assign its rights and obligations to
a successor (whether by merger, consolidation, reorganization or other similar
event) or purchaser of all or substantially all of its assets relating to the
Project, provided that such successor or purchaser has agreed in writing to
assume all of such Party’s rights and obligations hereunder and a copy of such
assumption is provided to the other Parties.


 


10.2.2                  For the avoidance of doubt, nothing in
this Clause 10.2 shall affect the provisions governing assignment of securities
in the Securities Amendment Agreement.


 


10.3                           Notices:


 


10.3.1                  Any notice to be given under this
Agreement shall be sent in writing in English by registered airmail,
internationally recognized courier or telefaxed to the following addresses:


 


	
  If to MS R&D at:

  
	
   

  
	
  MS Research and Development Corporation

  
	
  15 Skyline Drive

  
	
  Hawthorne, NY 
  10532

  
	
  Facsimile:

  	
  914 347 4560

  
	
  with a copy to Acorda at the address indicated
  below;

  
	
   

  
	
   

  
	
  If to Acorda at:

  
	
   

  
	
  Acorda Therapeutics, Inc.

  



 


20

















 


	
  15 Skyline Drive

  
	
  Hawthorne, NY 
  10532

  
	
  Facsimile:

  	
  914 347 4560

  
	
  Attention:

  	
  President

  
	
   

  
	
  If to Elan and/or EIS at:

  
	
   

  
	
  Elan Corporation, plc

  
	
  Elan International Services, Ltd.

  
	
  C/o Elan International Services, Ltd.

  
	
  102 St. James Court

  
	
  Flatts,

  
	
  Smiths FL04

  
	
  Bermuda

  
	
  Attention:

  	
  Secretary

  
	
  Telephone:

  	
  441 292 9169

  
	
  Fax:

  	
  441 292 2224

  



 


or to such other address (es) and telefax numbers as
may from time to time be notified by any Party to the others hereunder.


 


10.3.2                  Any notice sent by mail shall be deemed to
have been delivered within seven (7) working days after dispatch or delivery to
the relevant courier and notice sent by fax shall be deemed to have been
delivered upon confirmation receipt. 
Notice of change of address shall be effective upon receipt.


 


10.4                           Waiver:


 


No waiver of any right under this Agreement shall be
deemed effective unless contained in a written document signed by the Party
charged with such waiver, and no waiver of any breach or failure to perform
shall be deemed to be a waiver of any future breach or failure to perform or of
any other right arising under this Agreement.


 


10.5                           Severability:


 


If any provision in this Agreement is agreed by the
Parties to be, or is deemed to be, or becomes invalid, illegal, void or
unenforceable under any law that is applicable hereto:


 


10.5.1                  such provision will be deemed amended to
conform to applicable laws so as to be valid and enforceable; or


 


10.5.2                  if it cannot be so amended without
materially altering the intention of the Parties, it will be deleted, with
effect from the date of this


 


21

















 


Agreement or such earlier date as the Parties may
agree, and the validity, legality and enforceability of the remaining
provisions of this Agreement shall not be impaired or affected in any way.


 


10.6                           Further Assurances:


 


At the request of any of the Parties, the other Party
or Parties shall (and shall use reasonable efforts to procure that any other
necessary parties shall) execute and perform all such documents, acts and
things as may reasonably be required subsequent to the signing of this
Agreement for assuring to or vesting in the requesting Party the full benefit
of the terms hereof.


 


10.7                           Successors:


 


This Agreement shall be binding upon and inure to the
benefit of the Parties hereto and their respective successors and permitted
assigns.


 


10.8                           Amendments:


 


No amendment, modification or addition hereto shall be
effective or binding on any Party unless set forth in writing and executed by a
duly authorized representative of each Party.


 


10.9                           Counterparts:


 


This Agreement may be executed in any number of
counterparts, each of which when so executed shall be deemed to be an original
and all of which when taken together shall constitute this Agreement.


 


10.10                     Costs:


 


Each Party shall bear its own costs and expenses in
connection with the transactions contemplated by this Agreement.


 


10.11                     Force Majeure:


 


No Party to this Agreement shall be liable for failure
or delay in the performance of any of its obligations hereunder if such failure
or delay results from Force Majeure, but any such failure or delay shall be
remedied by such Party as soon as practicable.


 


10.12                     Relationship of the
Parties:


 


The Parties are independent contractors under this
Agreement.  Nothing herein contained
shall be deemed to create or establish an employment,


 


22

















 


agency, joint venture, or partnership relationship
between the Parties or any of their agents or employees, or any other legal
arrangement that would impose liability upon one Party for the act or failure
to act of another Party.  No Party shall
have any express or implied power to enter into any contracts, commitments or
negotiations or to incur any liabilities in the name of, or on behalf of,
another Party, or to bind another Party in any respect whatsoever. 


 


10.13                     Entire agreement:


 


10.13.1             This Agreement and the Restated Elan
License (together with the Appendices, Schedules and Exhibits hereto and
thereto) sets forth all of the agreements and understandings between the
Parties with respect to the subject matter hereof.  There are no agreements or understandings with respect to the
subject matter hereof, either oral or written, between the Parties other than
as set forth in this Agreement and the Restated Elan License.


 


10.13.2            No provision of this Agreement shall be
construed so as to negate, modify or affect in any way the provisions of any
other agreement between the Parties unless specifically provided herein and
only to the extent so specified.


 


THE REMAINDER OF THIS PAGE


HAS BEEN INTENTIONALLY LEFT BLANK.


 


23

















 


IN WITNESS WHEREOF the Parties have executed this
Agreement.


 


	
  SIGNED

  
	
   

  
	
  BY:

  	
  /s/ Pieter Bosse

  	
   

  
	
  BY:

  	
  /s/ Klaas vanBlanken

  	
   

  
	
  for and on behalf of

  
	
  Elan Corporation, plc

  
	
  Name:

  	
  Monksland Holdings Bv

  
	
  Title:

  	
  Proxyholder

  
	
   

  
	
  SIGNED

  
	
   

  
	
  BY:

  	
  /s/ Debra Buryj

  	
   

  
	
  for and on behalf of

  
	
  Elan International Services, Ltd.

  
	
  Name:

  	
  Debra Buryj

  
	
  Title:

  	
  Vice President

  
	
   

  
	
  SIGNED

  
	
   

  
	
  BY:

  	
  /s/ Ron Cohen

  	
   

  
	
  for and on behalf of

  
	
  MS Research
  & Development Corporation

  
	
  Name:

  	
  Ron Cohen

  
	
  Title:

  	
  President & Chief
  Executive Officer

  
	
   

  
	
  SIGNED

  
	
   

  
	
  BY:

  	
  /s/ Ron Cohen

  	
   

  
	
  for and on behalf of

  
	
  Acorda Therapeutics, Inc.

  
	
  Name:

  	
  Ron Cohen

  
	
  Title:

  	
  President & Chief Executive Officer

  
				



 


24

















 


SCHEDULE
1


 


CLINICAL
TRIALS


 


Completed Studies:


•                  MS-F200: Randomized, Double-Blind,
Placebo-controlled Trial of Sustained-Release Fampridine(4-aminopyridine) in
Multiple Sclerosis Patients with Internuclear Ophthalmoplegia (INO)


 


•                  MS-F201: A Double blind, Dose-Ranging Study of
Fampridine-SR in Subjects with Multiple Sclerosis


 


Ongoing Studies:


•                  MS-F202: Double-Blind, Placebo-controlled,
20-Week, Parallel Group Study to Evaluate Safety, Tolerability and Activity of
oral Fampridine-SR in subjects with Multiple Sclerosis


 


•                  MS-F202 ext: 12 month ext open label extension study


 


25

















 


SCHEDULE
2.2


 


RIGHTS
OF FIRST OFFER & CO-SALE RIGHTS


 


The following is a restatement of Section 4.4 and Section 4.5 of the
SSDA and relevant definitions:


 


Rights of First Offer


 


4.4                                                                                                                                 (a) 
If at any time a Stockholder shall desire to Transfer any Common Stock
owned by it (a “Selling Stockholder”),
in any transaction or series of related transactions, then such Selling
Stockholder shall deliver prior written notice of its desire to Transfer (a “Notice of Intention”) to (i) the Company
and (ii) the party who is not the Selling Stockholder, and (iii) any Permitted
Transferee, as applicable, setting forth such Selling Stockholder’s desire to
make such Transfer, the number of shares of Common Stock proposed to be
transferred (the “Offered Shares”)
and the proposed form of transaction (the “Transaction
Proposal”), together with any documentation relating thereto and the
price at which such Selling Stockholder proposes to Transfer the Offered Shares
(the “Offer Price”).  The “Right
of First Offer” provided for in this Section 4.4 shall be subject to
any “Co-sale Right” benefiting a
Stockholder which may be provided for by Section 4.5, subject to the exceptions
set forth therein. The parties shall make such adjustments in the arrangements
required by this Section 4.4 as the board of directors shall deem necessary and
proper in connection with obtaining material investments from unaffiliated
third parties.


 


(b)  Upon
receipt of the Notice of Intention, the party who is not the Selling
Stockholder shall have the right to purchase at the Offer Price the Offered
Shares, exercisable by the delivery of notice to the Selling Stockholder (the “Notice of Exercise”), with a copy to the
Company within 10 business days from the date of receipt of the Notice of
Intention.  If no such Notice of
Exercise has been delivered by the party who is not the Selling Stockholder
within such 10 business-day period, or such Notice of Exercise does not relate
to all the Offered Shares covered by the Notice of Intention, then the Selling
Stockholder shall be entitled to Transfer the Offered Shares to the intended
Transferee.


 


(c)  In the
event that the party who is not the Selling Stockholder exercises its right to
purchase Offered Shares (in accordance with this Section 4.4), then the Selling
Stockholder must sell the Offered Shares to such party, in the amounts set forth
in the Notice of Intention, after not less than five business and not more than
15 business days from the date of the delivery of the Notice of Exercise.


 


(d)  The rights
and obligations of each of the Stockholders pursuant to the Right of First
Offer provided herein shall terminate upon the date that the Company shall have
a class of securities registered under Section 12(b) or 12(g) of the Exchange
Act.


 


26

















 


(e)  At the
closing of the purchase of Offered Shares (scheduled in accordance with Section
4.4(c)), the Selling Stockholder shall deliver certificates evidencing the
Offered Shares being sold, duly endorsed, or accompanied by written instruments
of transfer in form reasonably satisfactory to the party who is not the Selling
Stockholder, duly executed by the Selling Stockholder, free and clear of any
adverse claims, against payment of the purchase price therefor in cash, and
such other customary documents as shall be necessary in connection therewith.


 


Co-sale Rights


 


4.5                                                                                                                                 (a) 
Subject to Section 4.5(e), any one Stockholder (the “Transferring Stockholder”) shall not
Transfer (either directly or indirectly), in any one transaction or series of
related transactions, to any Person or group of Persons, 5% or more of Common
Stock, or options, warrants or any other securities convertible, exercisable or
exchangeable for Common Stock (“Common Stock
Equivalents”), unless the terms and conditions of such Transfer
shall include an offer to the other Stockholders (the “Remaining Stockholders”), at the same
price and on the same terms and conditions as the Transferring Stockholder has
agreed to sell its Common Stock.


 


(b)  In the
event a Transferring Stockholder proposes to Transfer any Common Stock or
Common Stock Equivalents in a transaction subject to this Section 4.5, it shall
notify, or cause to be notified, the Remaining Stockholders in writing of each
such proposed Transfer.  Such notice
shall set forth: (i) the name of the transferee and the number of shares of Common
Stock proposed to be transferred, (ii) the proposed amount and form of
consideration and terms and conditions of payment offered by the transferee
(the “Transferee Terms”) and (iii)
that the transferee has been informed of the “Co-sale
Right” provided for in this Section 4.5, if such right is
applicable, and has agreed to purchase shares of Common Stock from the
Transferring Stockholder in accordance with the terms hereof.


 


(c)  The
Co-sale Right may be exercised by the Remaining Stockholders by delivery of a
written notice to the Transferring Stockholder (the “Co-sale Notice”) within five business days following receipt
of the notice specified in the preceding subsection.  The Co-sale Notice shall state the number of shares of Common
Stock owned by the Remaining Stockholder which the Remaining Stockholder wishes
to include in such Transfer; provided, however, that without the written
consent of the Transferring Stockholder, the number of shares belonging to the
Remaining Stockholder included in such Transfer may not be greater than such
Remaining Stockholder’s percentage beneficial ownership of Common Stock (on a
fully diluted basis) multiplied by the total number of shares of Common Stock
(including shares of Common Stock issuable upon the conversion, exercise or
exchange of any Common Stock Equivalent) to be sold by both the Transferring
Stockholder and all Remaining Stockholders. 
Upon receipt of a Co-sale Notice, the Transferring Stockholder shall be
obligated to transfer at least the entire number of shares of Common Stock set
forth in the Co-sale Notice to the Transferee on the Transferee Terms;
provided, however, that the Transferring


 


27

















 


Stockholder shall not consummate the purchase and sale of any shares
hereunder if the Transferee does not purchase all shares.  If no Co-sale Notice has been delivered to
the Transferring Stockholder prior to the expiration of the five-day period
referred to above and if the provisions of this Section have been complied with
in all respects, the Transferring Stockholder shall have the right for a 60 day
calendar day period to Transfer Common Stock to the Transferee on the
Transferee Terms without further notice to any other party, but after such
60-day period, no such Transfer may be made without again giving notice to the
Remaining Stockholders of the proposed Transfer and complying with the
requirements of this Section 4.5.


 


(d) At the closing of any Transfer of Common Stock or
Common Stock Equivalent subject to this Section 4.5, the Transferring
Stockholder, and the Remaining Stockholder, in the event such Co-sale Right is
exercised, shall deliver certificates evidencing such shares of Common Stock as
have been Transferred by each, duly endorsed, or accompanied by written
instruments of transfer in form reasonably satisfactory to the Transferee, free
and clear of any adverse claim, against payment of the purchase price therefor.


 


(e) Notwithstanding the foregoing, this Section 4.5
shall not apply to any sale of Common Stock pursuant to an effective
registration statement under the Securities Act in a bona fide public offering,
sales made in compliance with Rule 144, or any successor rule under the
Securities Act.


 


Definitions:


 


“Stockholders” shall mean EIS together with Acorda; each
sometimes referred to herein as a “Stockholder”.


 


“Transfer” shall mean, in each case, directly or
indirectly, sell, assign, pledge, encumber, hypothecate, grant a security
interest in, or otherwise transfer Common Stock.


 


“Common Stock” shall mean shares of the Company’s common
stock (the “Shares”), par value $.
001 per share.


 


“Company” shall mean MS Research and Development
Corporation.


 


“Permitted Transferee” means any Affiliate or Subsidiary of EIS
or Acorda, to whom this Agreement may be assigned, pursuant to the terms
hereof.


 


“Person” shall mean an individual, partnership,
joint venture, corporation, trust or unincorporated organization, a government
or any department, agency or political subdivision thereof, or any other
entity.


 


28

















 


SCHEDULE
2.4


 


AMOUNTS
OWING BY MS R&D TO ACORDA AND ELAN


 


	
  MS R&D Debt:

  	
   

  	
  $

  	
  721,000

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Owing to Elan:

  	
   

  	
  $

  	
  129,229

  	
   

  



 


29

















 


SCHEDULE
4.1


 


CAPITALIZATION


 




	
  Shareholder

  	
   

  	
  Common
  Shares

  	
   

  	
  %
  Shareholding

  	
   

  
	
  Acorda

  	
   

  	
  20,342

  	
   

  	
  82.671

  	
  %

  
	
  EIS

  	
   

  	
  1,279

  	
   

  	
  5.198

  	
  %

  
	
  EPIL II

  	
   

  	
  2,985

  	
   

  	
  12.131

  	
  %

  
	
  Total

  	
   

  	
  24,606

  	
   

  	
  100

  	
  %

  






 


30

















 


SCHEDULE
4.3


 


BALANCE
SHEET AND PRO FORMA BALANCE SHEET


 


(expressed in
United States dollars)


 


	
   

  	
   

  	
  June 30,

  2003

  	
   

  	
  June 30, 2003

  	
   

  
	
   

  	
   

  	
  (Unaudited)

  	
   

  	
  Pro Forma (Unaudited)

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ASSETS:

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Current
  Assets

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Check/Savings

  	
   

  	
  0

  	
   

  	
  0

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Total Current Assets

  	
   

  	
  0

  	
   

  	
  0

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Total ASSETS

  	
   

  	
  0

  	
   

  	
  0

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  LIABILITIES
  AND EQUITY:

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Liabilities

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Current Liabilities:

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Accounts Payable – Due to Elan

  	
   

  	
  113,260

  	
   

  	
  129,229

  	
   

  
	
  Accounts Payable – Due to Acorda

  	
   

  	
  —

  	
   

  	
  721,000

  	
   

  
	
  Total Accounts Payable

  	
   

  	
  113,260

  	
   

  	
  850,229

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Total current liabilities

  	
   

  	
  113,260

  	
   

  	
  850,229

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Total liabilities

  	
   

  	
  113,260

  	
   

  	
  850,229

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Equity

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Contributed Surplus

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Contributed Surplus Acorda

  	
   

  	
  8,213,265

  	
   

  	
  8,213,265

  	
   

  
	
  Contributed Surplus EIS

  	
   

  	
  1,279,409

  	
   

  	
  1,279,409

  	
   

  
	
   

  	
   

  	
  9,492,674

  	
   

  	
  9,492,674

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Retained
  Earnings

  	
   

  	
  (24,605,943

  	
  )

  	
  (25,342,912

  	
  )

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Share
  Capital

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Common Shares Acorda

  	
   

  	
  20

  	
   

  	
  21

  	
   

  
	
  Common Shares EPIL II

  	
   

  	
  3

  	
   

  	
  3

  	
   

  
	
  Common Shares EIS

  	
   

  	
  1

  	
   

  	
  —

  	
   

  
	
   

  	
   

  	
  24

  	
   

  	
  24

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Share
  Premium

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Acorda

  	
   

  	
  12,014,988

  	
   

  	
  12,014,988

  	
   

  
	
  EIS

  	
   

  	
  2,984,997

  	
   

  	
  2,984,997

  	
   

  
	
   

  	
   

  	
  14,999,985

  	
   

  	
  14,999,985

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Total
  liabilities and stockholders’ equity

  	
   

  	
  —

  	
   

  	
  —

  	
   

  



 


31

















 


SCHEDULE
4.4.2


 


MS
R&D THIRD PARTY AGREEMENTS


 


Agreements to which MS R&D is a
party


 


None


 


Agreements to which Elan is a party
for the benefit of MS R&D


 


1                                          Confidentiality Agreement dated February
24, 2000 between Elan Corporation plc and Regis Technologies, Inc


 


2                                          Confidentiality Agreement dated May 1,
2002 between Elan Corporation plc and Magellan Laboratories, Inc


 


3                                          Confidentiality Agreement dated April 12,
2000 between Elan Corporation plc and Regulatory Interlinx


 


4                                          Confidentiality Agreement dated December
8, 1997 between Elan Corporation plc and CU Chemie Uetikon GmbH


 


5                                          Supply Agreement dated December 8, 2000
between Elan Pharma Limited and Regis Technologies Inc


 


6                                          Letter Agreement dated June 26, 2000
between Elan Pharmaceutical Operations and CU Chemie Uetikon GmbH


 


Agreements to which Elan and Acorda
are parties for the benefit of MS R&D


 


Confidentiality Agreement dated December 5, 2002 between Elan
Corporation plc, Patheon Inc. and Acorda Therapeutics, Inc


 


Agreements to which Elan and Acorda
are parties for the benefit of MS R&D


 


1                                          Clinical Reference Laboratory dated
January 9, 2003


2                                          Jeiven/Almedica dated November 14, 2002


3                                          Pharmanet dated October 25, 2001


4                                          Cardinal Health dated April 1, 2003


5                                          ClinPro, Inc. dated July 30, 2002


6                                          Patheon, Inc. dated February 26, 2003


 


32

















 


Clinical Study
Agreements*


 


1                                          Catholic Healthcare West dated February
24, 2003


2                                          Charlotte Mecklenberg Hospital Authority
dated December 18, 2002


3                                          Cleveland Clinic Foundation dated January
10, 2001 (201); March 17, 2003 (202)


4                                          CMSC/Gimbel MS Center dated December 17,
2002


5                                          Fairview MS Center dated December 20,
2002


6                                          Health Research Association dated July 7,
2003


7                                          Maimonides Medical Center dated January
13, 2003


8                                          Mt. Sinai School of Medicine dated
December 19, 2002


9                                          Ohio State University Research Foundation
dated January 13, 2003


10                                    Oregon Health & Science University
dated January 7, 2003


11                                    Research Foundation SUNY dated January
15, 2003


12                                    Shepherd Center, Inc. dated November 25,
2002


13                                    St. Michael’s Hospital dated March 10,
2003


14                                    Swedish Health Services dated January 13,
2003


15                                    Texas Health Sciences Center at Houston
dated January 15, 2003


16                                    Thomas Jefferson University dated January
13, 2003


17                                    Governors of the University of Calgary
dated Decemeber 19, 2002


18                                    University of Chicago dated March 21,
2003


19                                    University of Maryland, Baltimore dated
December 17, 2002


20                                    Regents of the University of New Mexico
dated February 24, 2003


21                                    University of Rochester dated November 22
2000 (201); December 18 2002 (202)


22                                    University of Washington dated March 11,
2003


23                                    Washington University dated February 20,
2001 (201); December 18, 2003 (202)


24                                    Yale University dated January 10, 2001
(201); February 6, 2003 (202)


25                                    University of Texas Southwestern dated
May 17, 1999 (200)


 


33

















 


SCHEDULE
4.6


 


REGULATORY
FILINGS


 


USA


 


Acorda submitted an IND application in the US (IND # 51,333) on 23
August 1996, and has been submitting the IND amendments and IND annual reports
since then.


 


Acorda has been submitting the IND amendments and IND annual reports
since the acceptance of the transfer of IND# 17,627 from Athena Neurosciences
to Acorda on 17 June 1998.


 


Acorda submitted orphan drug application (Application# 97-1044) on 14
March 1997, and has been submitting the annual reports since then.


 


Acorda has been submitting the annual reports since the transfer of
sponsorship of orphan drug application (Application# 86-181) from Athena
Neurosciences, Inc. on 11 July 1997.


 


 


Canada


 


Acorda submitted an IND application in Canada (File # 9427-S1507-21C)
on December 11, 1997. (File # later changed to 9427-A1507-21C), and the IND
amendments and IND annual reports.


 


34

















 


SCHEDULE
4.10


 


DISTRIBUTION


 


The Distribution shall be payable pro rata to the stockholders of MS R&D
in the amounts set forth opposite their respective names:


 


	
  Acorda

  	
   

  	
  US$

  	
  9,541,347

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  EIS

  	
   

  	
  US$

  	
  599,919

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  EPIL II

  	
   

  	
  US$

  	
  1,400,081

  	
   

  



 


35