That quote wasn't linked but it's a little unusual so I hunted for it (glad it's a Sunday). Turns out it isn't in the Agreement, which both parties signed, but rather it's in the 8-K (that Aspire didn't sign). So I'm not convinced that it describes any actual agreement between the two parties. "The satisfaction of Aspire Capital with achievement of the milestones" seems a little loosy goosy to me so I can see why the question was raised.
But just in case it IS definitive....
I think the agreement is stripped of any potential arbitrary interpretations regarding the P2b test with this:
"“Successful Phase 2b” means that the Company’s Phase 2b trial of Prurisol on psoriasis has met its primary end point, which means a statistically significant increase (p<0.05) in the proportion of patients achieving at least a 75% reduction from baseline in PASI score (PASI75) while receiving Prurisol compared to those receiving placebo at the end of 12 weeks."
There's an itsy bitsy bit of wonkiness in the BTD milestone in that it is achieved "on or before the second Business Day after the Company announces the Break-through Designation" versus the date of "the granting by the U.S. Food and Drug Administration of the Company’s request for Breakthrough Therapy Designation".
I think that the BD Agreement, in spite of the specifics regarding a "double-digits millions of dollars" upfront payment and the understanding that the partner will handle "the conducting and funding of clinical trials aiming towards the filing of an NDA" for B-OM, may be the item most susceptible to interpretation given the way it is written. For example we again see timing based on "the second Business Day after the Company announces the BD Agreement"...not the signing of the agreement or the receipt of the "up-front" payment. I'd like to see that date tied to a more specific event. We see things like Letters of Intent in situations like this...would that meet the BD Agreement definition to the satisfaction of Aspire?
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