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Healthpro Bioventures, LLC v. Prometic Life Sciences Inc

November 8, 2011

HEALTHPRO BIOVENTURES, LLC, PLAINTIFF,
v.
PROMETIC LIFE SCIENCES INC., DEFENDANT.



The opinion of the court was delivered by: Denise Cote, District Judge:

OPINION AND ORDER*fn1

Plaintiff HealthPro Bioventures, LLC ("HealthPro") has brought this action to recover fees it claims it is owed pursuant to a consulting agreement that it entered with defendant Prometic Life Sciences, Inc. ("Prometic"). This Opinion addresses the parties' cross-motions for summary judgment. For the following reasons, both motions are granted in part.

BACKGROUND

The Complaint principally asserts that Prometic breached its obligations to HealthPro under the Re-Amended and Restated Strategic Consulting Services Agreement, which is dated May 31, 2008 (the "May 31 CSA"),*fn2 by refusing to pay HealthPro a "Success Fee" on two transactions that Prometic concluded with Abraxis BioScience, Inc. ("Abraxis") in December 2009 and February 2010.*fn3

HealthPro also raises claims under the May 31 CSA relating to the initial transaction between Prometic and Abraxis in 2008. HealthPro seeks (1) an order directing Prometic to deliver to HealthPro an option to purchase 300,000 common shares of Prometic capital stock; and (2) a declaration regarding which components of the 2008 transaction are subject to HealthPro's right to a Success Fee. Finally, HealthPro alleges claims for attorneys' fees and expenses that it incurred while performing services for Prometic.

Prometic has raised one counterclaim against HealthPro. Prometic seeks return of fifty percent of the Success Fee paid to HealthPro in connection with the 2008 transaction.

The following facts are not in dispute, unless otherwise indicated. HealthPro provides advisory services to companies in the pharmaceutical, biotechnology, diagnostic and healthcare industries. Prometic is a biotechnology company focused on the research and development of various therapeutic technologies, with an eye toward commercializing successfully-developed technologies through strategic partnerships. Beginning in 2006, Prometic and HealthPro entered into a series of agreements pursuant to which HealthPro agreed to assist Prometic in finding strategic partners for its proprietary technologies. It is undisputed that the most recent of these agreements, the May 31 CSA, is the controlling contract in this dispute.

I. The May 31 CSA

Under the May 31 CSA, HealthPro agreed to provide Prometic with "business consulting services" to identify "strategic partners" for:

(i) the licensing of all or any portion of [Prometic's] proprietary rights and technology (tangible or otherwise) described in Schedule A hereto (collectively the "Technology") to any Covered Party (as defined below and listed on Schedule B as amended from time to time as new Covered Party may be added to the Schedule B), or (ii) any other collaborations of a similar nature, including but not limited to strategic investments, acquisitions, mergers, sales of assets, relating to the Technology for which [Prometic] receives monetary consideration (collectively the "Transaction"). (Emphasis supplied.) Schedule A, in turn, lists five technologies, including Prometic's "Plasma Protein Purification Scheme (PPPS) to be implemented to develop, manufacture and commercialize plasma derived proteins, having orphan drug status or otherwise, and all products derived therefrom."*fn4 Abraxis is included on Schedule B, the list of Covered Parties under the May 31 CSA.*fn5

Upon execution of a Transaction -- i.e. a license or other collaboration between Prometic and a Covered Party related to a Technology -- Prometic agreed to pay HealthPro two forms of compensation: a "Project Fee" and a "Success Fee." Pursuant to the May 31 CSA, the Project Fee required Prometic to give HealthPro upon the date of execution of a Transaction, an option from its stock option plan to purchase three hundred thousand (300,000) of [Prometic's] shares at a price equal to the average of the 5 day closing trading prices immediately preceding the date of the execution of a Transaction. The option to purchase [Prometic's] shares shall be non-refundable, fully vested, have a cashless exercise provision, the underlying shares shall be freely tradable following a 120-day hold period commencing on the date the option is granted and the option shall have an expiration date of three (3) years after the date of execution of a specific Transaction.

(Emphasis supplied.)

The Success Fee applied to Transactions entered between Prometic and Covered Parties "as a result" of the services provided by HealthPro either during the term of the May 31 CSA or "within the twelve (12) month period following its termination" and required Prometic to pay HealthPro 5% of the "Total Consideration [as such term is further defined below] received by Client as a result of the execution of a Transaction." Total Consideration was defined as the following amounts received by [Prometic] as part of the Transaction: (i) the cash purchase price, strategic investment, or upfront licensing fee paid to [Prometic], any contingent consideration that becomes payable upon the occurrence of such contingency and other post-closing adjustment, if any, of such purchase price, licensing fee and contingent consideration, including, but not limited to strategic investments and/or milestone payments upon such payments being paid to and having been received by [Prometic], (ii) the Fair Market Value (as defined below) of shares of a Strategic Partner issued to [Prometic], (iii) extraordinary dividends paid to [Prometic] in cash or the Fair Market Value of such dividends paid to [Prometic] in shares, (iv) the amount of forgiveness of [Prometic's] debt, and (v) the amount of [Prometic's] indebtedness for borrowed money directly or indirectly assumed by the Covered Parties, but excluding in each case any double counting of any such consideration. [Prometic] and [HealthPro] hereby acknowledge and agree that no Success Fee shall be paid to [HealthPro] on other revenues received by [Prometic] arising from any research and development services, resin sales, or manufacturing services. (Emphasis supplied.) If, however, a

Covered Party in a Transaction is . . . an entity or person whom [Prometic] has already contacted or held discussions with on or prior to the date hereof regarding a potential Transaction, or their affiliates . . . the Success Fee shall be reduced by fifty percent (50%) of that which would otherwise be applicable. (Emphasis supplied.)

Two other sections of the May 31 CSA are relevant to this dispute. Two provisions titled "Indemnity" state in mirror-image paragraphs that each of the parties indemnifies the other. For example, one paragraph provides that

[Prometic] agrees to indemnify [HealthPro], its officers, directors, employees and agents from any liability, claim or expense, including reasonable attorneys' fees, arising out of or in connection with this Agreement or the Services of [HealthPro] hereunder, except to the extent such liability, claim or expense is attributable to Advisor's breach of this Agreement or the gross negligence or intentional misconduct of [HealthPro], its officers, directors, employees and agents.

And, finally, a section on "Governing Law" provides that the Agreement "shall be interpreted under and governed by the laws of State of Delaware and the United States applicable therein, without giving effect to their choice of law rules."

II. The September 2008 Abraxis Transaction

Following a face-to-face meeting that HealthPro arranged between Prometic and Abraxis CEO Patrick Soon-Shiong ("Soon-Shiong") on May 13, 2008, Abraxis and Prometic signed a letter of intent dated July 29, 2008 (the "2008 LOI"). Prometic CEO Pierre Laurin ("Laurin") had known Soon-Shiong since 1997 or 1998. At that time, Soon-Shiong had indicated an interest in Prometic's technology and its capability to supply generic versions of drugs. As of that time, a Prometic subsidiary supplied products to a company owned by Soon-Shiong, American Pharmaceutical Partners ("APP"). Before 2008, however, Soon-Shiong had never discussed the possibility of doing any business with Prometic related to any of the technologies on Schedule A of the May 31 CSA.

The transaction contemplated by the 2008 LOI closed on September 3, 2008 and included seven separate agreements (collectively, the "2008 Abraxis Transaction"): (1) the [REDACTED] License Agreement (the "2008 [REDACTED] License"); (2) the Securities Purchase Agreement ("2008 SPA"); (3) the Prion Reduction Technology License (the "2008 PRT License"); (4) the [REDACTED] Supply and License Agreement ("2008 [REDACTED] Agreement"); (5) the 2008 Services Agreement; (6) the 2008 Exclusive Manufacturing Agreement; and, (7) a Letter of Intent regarding future development of certain other proteins (the "Classical Proteins") using the [REDACTED] process ("2008 Classical Proteins LOI"). The first three of these agreements as well as the Success and Project Fees that Prometic paid to HealthPro at the conclusion of the 2008 Transaction are particularly relevant to this litigation.

A. 2008 [REDACTED] License The 2008 [REDACTED] License describes [REDACTED] as [REDACTED]

Pursuant to the 2008 [REDACTED] License, Prometic granted Abraxis: (1) a non-exclusive license to use the [REDACTED] technology (as well as related processes and materials) to develop and manufacture [REDACTED] (the "Orphan Proteins") [REDACTED] and (2) an exclusive license to sell and distribute the Orphan Proteins.*fn6 The 2008 [REDACTED] License did not provide for Prometic to receive any upfront license fee from Abraxis in exchange for the license to use the [REDACTED] technology, but it did provide for certain one-time milestone payments,*fn7 and for Prometic to share generally in the commercial upside of the Orphan Proteins through royalty payments based on net sales. It is undisputed that if these milestone payments are made, HealthPro will be entitled to recover 5% of any payment as a Success Fee under the May 31 CSA.

B. 2008 SPA Pursuant to the 2008 SPA, Abraxis acquired 15,677,021 shares of Prometic for $7 million, representing a price per share of around $.45. Additionally, Abraxis received warrants to purchase additional shares of Prometic at a rate of $.47 per share (under certain circumstances) until March 3, 2012.*fn8

Prometic concedes that if any of the warrants provided for under the 2008 SPA are exercised, HealthPro is entitled to recover a Success Fee pursuant to the May 31 CSA.

C. 2008 PRT License Under the 2008 PRT License, Prometic granted Abraxis the rights to use Prometic's proprietary prion reduction technology ("PRT") in developing [REDACTED].*fn9 The preface to the 2008 PRT License states that pursuant to the [2008] [REDACTED] License, it was further agreed that, as a complement to the [REDACTED] License, [Prometic] . . . would enter into an additional license agreement pursuant to which Abraxis would be ...


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