Go to Y@h00 finance for RLFTF and select “conversations”.
Here is more “keen legal analysis” from Bogo!
This is a continuation of my post from this morning. Having read the C.A, I do have an impression of it.
Before I state it, please understand that we as Attorneys make argument to the Trier of Fact. We render opinions based on precedent, i.e., Primary authority - case law, statutory authority, and Secondary authority - Treatises and other learned opinions, that are relevant and supportive of our arguments.
I have read and re-read the C.A several times, and I continue to walk away with different “impressions” that re-shape my thoughts about it. Again, we do not know the contents of the N.D.A. nor the Development Agreement.
However, based on the strict reading of the language of the C.A., my OPINION is that this Agreement is very much Executory in it’s terms. You can look up what an Executory Contract means. Long and short, it means a contract that is unperformed and one where the parties have continuing obligations to each other. The obligations remain for both NRXP and Relief.
Therefore in my opinion, there is a reason to keep the communications flowing, and I believe the Companies know that this MUST occur.
The Agreement in at least 2 places refers to an “Arbitrator” being appointed to render a decision on disagreements. And, as stated in my earlier post, there is no Breach Clause or definition of what a “material breach” is relative to the duties of the parties. In my opinion, you can glean the parties intent from a Breach clause not existing and from continuing obligations existing.
My impression is, that the Companies never intended for a non-performance to create a cessation to their obligations. Non-performance can be different from a breach. Rather, the C.A, speaks in terms of “if a party does not do X, then the opposing party does not have to do Y, or the opposing party can do Y.” But it never says, that the contract is ended and the obligations of the parties cease.
Therefore, the disagreement here is an isolated issue. Only drawing from facts that have been posted, it appears to be isolated to whether NRXP can hold back data and invoices and Relief not issue funds commensurate with the Agreement, and if that occurred, whether NRXP can proceed without Relief. But the agreement still creates obligation upon NRXP to Relief, even assuming that occurred. As to what came first, we have the proverbial “chicken vs. egg” scenario.
I believe NRXP knows they have a continuing duty pursuant to this Agreement. That is well certain. The issue is quite simple - “as long as Relief funds the research and development costs for developing such use,” Definition “Product”, and “NeuroRx is responsible for ensuring that all activities undertaken under the Project (a) comply with the Development Plan, (b) do not exceed 30% of the budget contemplated by Relief’s Board of Directors on March 22, 2020,” Section 4.4, and also consideration of Section 8.1
As the for the argument that NRXP thought it was receiving a stable substance, the “Stability argument,” there are many inferences in the C.A., and direct language in the IP itself, that clearly speak to a formulation or several formulations that need to occur, and stability being an issue. Keenly on point, Section 8.2 : “Relief shall fund the costs of formulation and stability of the Product at MediSourceRx and Bachem, together with technology transfer to Nephron Pharmaceuticals or other mutually agreeable commercial manufacturers.” This reference is clearly future looking, and the development of the “product” is the purpose of the C.A., so “stability” was a future contemplated occurrence.
~Bogo, Y@h00 RLFTF finance conversations
