including but not limited to ABP-450, and including but not limited to all intellectual property (including AEON trademarks and patents held worldwide), documents and information related to non-clincial studies and Clinical Trials of the Product, including the Protocols, data, interim findings and final results of such non-clinical studies and Clinical Trials, and (ii) all information, software, materials, and goods that incorporate any Know-How, or that are reasonably necessary to access, review, or transfer to DAEWOONG the Know-How (clauses (i) and (ii) are the “Termination Purchase Right”). DAEWOONG may, in its sole discretion, exercise the Termination Purchase Right upon, or at any time following, the termination of the License Agreement pursuant to Section 16.2 or 16.3. Immediately upon such purchase, AEON will cause all such Know-How, clinical data,information and other items described in clauses (i) and (ii) of this Section 16.4 to be physically delivered to Daewoong, and Aeon shall take all appropriate actions to transfer the investigational new drug applications (“INDs”) associated with the Clinical Trials of the Product to Daewoong, including without limitation, the submission and response to any required correspondence with the U.S. Food & Drug Administration to transfer such INDs. The Termination Purchase Right shall terminate and expire upon the earliest to occur of the time at which DAEWOONG and Daewoong Co., LTD., collectively, sell fifty percent (50%) of the sum of (x) AEON common stock that is held by DAEWOONG and Daewoong Co., LTD. on the Fourth Amendment Effective Date, and (y) AEON common stock that DAEWOONG would be issued upon an automatic or optional conversion of the Notes.
“Know-How” means intellectual property, data, results, pre-clinical and clinical protocols and data from studies and Clinical Trials, chemical structures, chemical sequences, materials, information, inventions, know-how, formulae, trade secrets, technique, methods, processes, procedures and developments, whether or not patentable. For the avoidance of doubt, Know-How also includes all information submitted to a Governmental Authority for a Regulatory Approval.
A “Change of Control” shall be deemed to have occurred if, after the Effective Date, (i) the beneficial ownership of securities representing more than 50% of the combined voting power of AEON is acquired by any person (other than AEON, any subsidiary of AEON, or any trustee or other fiduciary holding securities under an employee benefit plan of AEON), (ii) the merger or consolidation of AEON with or into another corporation where the shareholders of AEON, immediately prior to the consolidation or merger, would not, immediately after the consolidation or merger, beneficially own, directly or indirectly, shares representing in the aggregate 50% or more of the combined voting power of the securities of the corporation issuing cash or securities in the consolidation or merger (or of its ultimate parent corporation, if any) in substantially the same proportion as their ownership of AEON immediately prior to such merger or consolidation, or (iii) the sale or other disposition of all or substantially all of AEON’s assets to an entity, other than a sale or disposition by AEON of all or substantially all of AEON’s assets to an entity, at least 50% of the combined voting power of the voting securities of which are owned directly or indirectly by shareholders of AEON, immediately prior to the sale or disposition, in substantially the same proportion as their ownership of AEON immediately prior to such sale or disposition. Notwithstanding anything in this Agreement or otherwise to the contrary, the filing of a receivership, insolvency of bankruptcy proceeding, the appointment of a receiver, trustee, or entity or person with similar authority with respect to AEON in connection with a receivership, insolvency proceeding, bankruptcy, or similar proceeding shall be deemed not to constitute a Change of Control under the terms of this Agreement.
