CERTAIN IDENTIFIED INFORMATION HAS BEEN EXCLUDED (INDICATED BY: [***]) FROM THE EXHIBIT BECAUSE IT IS BOTH (I) NOT MATERIAL AND (II) THE TYPE OF INFORMATION THAT THE REGISTRANT CUSTOMARILY AND ACTUALLY TREATS AS PRIVATE OR CONFIDENTIAL.
This ASSIGNMENT AND ASSUMPTION AGREEMENT (this “Agreement”), dated as of June 21, 2023 (the “Closing Date”), is made and entered into by and between LadRx Corporation, a Delaware corporation (“Assignor”), on the one hand, and XOMA (US) LLC, a Delaware limited liability company (“Assignee”), on the other hand.
WHEREAS, Assignor sold certain assets to Orphazyme ApS (“Orphazyme”) pursuant to that certain Asset Purchase Agreement, by and between Assignor and Orphazyme, dated as of May 13, 2011, assigned by Orphazyme to Zevra Denmark A/S (“Zevra”), effective as of June 1, 2022 (the “Zevra Agreement”).
WHEREAS, Assignor is entitled to receive certain milestone, royalty, and other payments from Zevra pursuant to the Zevra Agreement (collectively, the “Royalty”).
WHEREAS, Assignor desires to sell, transfer and assign to Assignee all of Assignor’s right, title, and interest in and to the Zevra Agreement, including rights to the Royalty, and Assignee desires to purchase, assume and be bound by all covenants and obligations of Assignor under the Zevra Agreement, upon and subject to the terms and conditions set forth in this Agreement.
NOW THEREFORE, in consideration of the representations, warranties, covenants and agreements set forth herein and for good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, Assignor and Assignee hereby agree as follows:
“Acquired Patents” has the meaning ascribed thereto in Article 1 of the Zevra Agreement.
“Affiliate” means, with respect to any Person, any other Person that directly, or indirectly through one or more intermediaries, controls, is controlled by, or is under common control with, such first Person.
“Agreement” is defined in the preamble.
“Arimoclomol” means the pharmaceutical product known as arimoclomol with the chemical structure set forth on Schedule 1.1.
“Assignee” is defined in the preamble.
“Assignee Fundamental Representations” means the representations and warranties contained in Section 3.2(a) (Existence; Good Standing), Section 3.2(b) (Authorization), Section 3.2(c) (Enforceability), Section 3.2(d) (No Conflicts), and Section 3.2(g) (Brokers’ Fees).
“Assignee Indemnified Parties” is defined in Section 5.1(a).
“Assignee Material Adverse Effect” means any event, occurrence, fact, condition or change that, individually or in the aggregate, adversely affects in any material respect any one or more of the following: (i) the ability of Assignee to (A) consummate the transactions contemplated by this Agreement and (B) perform its obligations under this Agreement, (ii) the validity or enforceability of this Agreement against Assignee or (iii) the rights and remedies of Assignor under this Agreement.
“Assignor” is defined in the preamble.
“Assignor Fundamental Representations” means the representations and warranties contained in Section 3.1(a) (Existence; Good Standing), Section 3.1(b) (Authorization), Section 3.1(c) (Enforceability), Section 3.1(d) (No Conflicts), Section 3.1(i) (Zevra Agreement and Related Agreements), Section 3.1(j) (Title to Zevra Agreement), Section 3.1(k) (Intellectual Property), and Section 3.1(l) (Brokers’ Fees).
“Assignor Indemnified Parties” is defined in Section 5.1(b).
“Assignor Material Adverse Effect” means any event, occurrence, fact, condition or change that, individually or in the aggregate, adversely affects in any material respect any one or more of the following: (i) the ability of Assignor to (A) consummate the transactions contemplated by this Agreement and (B) perform its obligations under this Agreement, (ii) the validity or enforceability of this Agreement against Assignor or (iii) the rights and remedies of Assignee under this Agreement.
“Biorex” means, collectively, BIOREX Kutató és Fejlesztö Rt. (“V.A.”), BRX Research and Development Company Ltd, and BRX (UK) Limited and each of their respective successors or assigns.
“Biorex Agreement” means that certain Asset Sale and Purchase Agreement, by and among BIOREX Kutató és Fejlesztö Rt. (“V.A.”), BRX Research and Development Company Ltd, and Assignor, dated as of October 4, 2004, as assigned to BRX (UK) Limited, effective as of November 4, 2008.
“Business Day” means any day other than (a) a Saturday or Sunday or (b) a day on which banking institutions located in New York, USA are permitted or required by applicable law or regulation to remain closed.
“Closing Date” is defined in the recitals.
“Commercial Sale Milestone” is defined in Section 2.3(b).
“Disclosure Schedules” is defined in Section 3.1.
“Escrow Account” means the escrow account created pursuant to the Escrow Agreement.
“Escrow Agreement” means an Escrow Agreement to be entered into by the Assignor, the Assignee and an escrow agent (the “Escrow Agent”), in form and content acceptable to Assignor and Assignee.
“Excluded Liabilities and Obligations” is defined in Section 2.5.
“FDA” means the U.S. Food and Drug Administration, or a successor federal agency thereto in the United States.
“First Commercial Sale” means the first invoiced sale in any country in the Territory of a pharmaceutical product comprising Arimoclomol as an active pharmaceutical ingredient by Zevra or any of its Affiliates or (sub)licensees to a Third Party for end use consumption in such country following receipt of Regulatory Approval required to sell such product in such country. First Commercial Sale excludes transfers of such product to Third Parties as bona fide samples, as donations, for clinical study purposes or for any expanded access program, compassionate sales or use program (including named patient program or single patient program), indigent program, or for other charitable or promotional purposes or similar limited purposes.
“Governmental Entity” means any: (i) nation, principality, republic, state, commonwealth, province, territory, county, municipality, district or other jurisdiction of any nature; (ii) federal, state, local, municipal, foreign or other government; (iii) governmental or quasi-governmental authority of any nature (including any governmental division, subdivision, department, agency, bureau, branch, office, commission, council, board, instrumentality, officer, official, representative, organization, unit, body or other entity and any court, arbitrator or other tribunal); (iv) multi-national organization or body; or (v) individual, body or other entity exercising, or entitled to exercise, any executive, legislative, judicial, administrative, regulatory, police, military or taxing authority or power of any nature.
“Indemnified Party” is defined Section 5.2.
“Indemnifying Party” is defined in Section 5.2.
“Judgment” means any judgment, order, writ, injunction, citation, award or decree of any nature.
“Knowledge of Assignor” means the actual knowledge of the Knowledge Parties.
“Knowledge Parties” means [***].
“Kriegsman Agreement” means that certain Amended and Restated Employment Agreement between Assignor and Steven A. Kriegsman, dated as of March 26, 2019 as amended.
“Lien” means any mortgage, lien, pledge, charge, adverse claim, security interest, encumbrance or restriction of any kind, including any restriction on use, transfer or exercise of any other attribute of ownership of any kind.
“Loss” means any and all Judgments, damages, losses, claims, costs, liabilities and expenses, including reasonable fees and out-of-pocket expenses of counsel.
“NDA” means a New Drug Application as described in 21 C.F.R. § 314.50 submitted to the FDA, in the United States with respect to a pharmaceutical product. The term “NDA” shall include all necessary documents, data, and other information concerning the applicable product required for Regulatory Approval of such product as a pharmaceutical product by the FDA.
“NDA Milestone” is defined in Section 2.3(a).
“Net Sales” has the meaning ascribed thereto in Article 1 of the Zevra Agreement.
“Orphazyme” is defined in the recitals.
“Orphazyme Product” has the meaning ascribed thereto in Article 1 of the Zevra Agreement
“Permitted Liens” means any (i) mechanic’s, materialmen’s, and similar Liens for amounts not yet due and payable, (ii) statutory Liens for Taxes not yet due and payable or for Taxes that the taxpayer is contesting in good faith by contemporaneous proceeding and (iii) other Liens and encumbrances not incurred in connection with the borrowing of money that do not, in the aggregate, materially and adversely affect the use or value of the affected assets provided that, in each case, such Liens are automatically released upon the sale or other transfer of the affected assets (it being understood that any obligations secured by such “Permitted Liens” shall remain the obligations of Assignor).
“Person” means any individual, corporation, partnership, limited liability company, trust, association, organization, or other entity or Governmental Entity.
“Prime Rate” means the prime rate published by the Wall Street Journal, from time to time, as the prime rate.
“Purchase Price” means the aggregate purchase price of $5,000,000, to be allocated between this Agreement and the Royalty Purchase Agreement as set forth in Section 2.2(b).
“Regulatory Approval” means, with respect to a particular country or other regulatory jurisdiction, any approvals, licenses, registrations, or authorizations of any Regulatory Authority necessary for the development, manufacture or commercialization of a product for one or more indications in such country or regulatory jurisdiction, including, if applicable, necessary pricing and reimbursement approvals in such country or regulatory jurisdiction.
“Regulatory Authority” means any applicable Governmental Entity with jurisdiction or authority over the development, manufacture or commercialization of pharmaceutical or biologic products in a particular country or other regulatory jurisdiction, and any corresponding national or regional regulatory authorities.
“Royalty” is defined in the recitals.
“Royalty Purchase Agreement” means that certain Royalty Purchase Agreement by and between the Assignee and Assignor of even date hereof.
“Royalty Reduction” is defined in Section 3.1(i)(ix).
“Royalty Term” has the meaning ascribed thereto in Section 2.9 of the Zevra Agreement.
“Taxes” means any income, gross receipts, license, payroll, employment, excise, severance, occupation, premium, windfall profits, environmental, customs duties, capital stock, franchise, profits, withholding, social security, unemployment, disability, real property, personal property, abandoned property, value added, alternative or add-on minimum, estimated or other tax of any kind whatsoever, including any interest, penalty or addition thereto, whether disputed or not.
“Territory” means the United States, France, Germany, Italy, Spain, and the United Kingdom.
“Third Party” means any Person other than Assignor, Assignee, or their respective Affiliates.
“Transaction Expenses” is defined in Section 6.4.
“Zevra” is defined in the recitals.
“Zevra Agreement” is defined in the recitals.
“Zevra Instruction” is defined in Section 4.4.
Assignor hereby agrees and acknowledges that: (i) such payments pursuant to this Section 2.3 are contingent payment obligations of Assignee and there can be no assurance regarding the occurrence of the NDA Milestone or Commercial Sale Milestone; (ii) Assignee shall have no obligation or liability with respect to such payment unless and until the NDA Milestone and/or the Commercial Sale Milestone has occurred; and (iii) Assignee shall have the right, but not the obligation, to deduct from such payments, in whole or in part, amounts owed by Assignor or claimed in good faith to be owed by Assignor to any Assignee Indemnified Party whereby Assignee simultaneous with the deduction also shall submit a notice of claim as set forth in Section 5.2 if such notice of claim has not previously been submitted;[***].
All Excluded Liabilities and Obligations shall be retained by and remain liabilities and obligations of Assignor or Assignor’s Affiliates, as the case may be.
If to Assignor, to it at:
11726 San Vicente Blvd, Suite 650
Los Angeles, CA 90049
With a copy to:
Haynes and Boone, LLP
30 Rockefeller Plaza
New York, NY 10112
If to Assignee, to it at:
Xoma (US) LLC
2200 Powell Street, Suite 310
Emeryville, CA 94608
Attention: Legal Department; [***]
With a copy to:
Gibson, Dunn & Crutcher LLP
555 Mission Street, 30th Floor
San Francisco, California 94105
All notices and communications under this Agreement shall be deemed to have been duly given (i) when delivered by hand, if personally delivered, (ii) when received by a recipient, if sent by email, or (iii) one (1) Business Day following sending within the United States by overnight delivery via commercial one-day overnight courier service.
IN WITNESS WHEREOF, the parties hereto have caused this Assignment and Assumption Agreement to be executed and delivered by their respective representatives thereunto duly authorized as of the date first above written.
By: /s/ Stephen Snowdy
Name: Dr. Stephen Snowdy
Title: Chief Executive Officer
[Signature Page to Assignment and Assumption Agreement]
XOMA (US) LLC
By: /s/ Bradley Sitko
Name: Bradley Sitko
Title: Chief Investment Officer
[Signature Page to Assignment and Assumption Agreement]