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.
By and Between
XOMA (US) LLC
Dated as of June 21, 2023
Table of Contents
Table of Contents
Table of Contents
Index of Exhibits
Exhibit A:Seller’s Wire Transfer Instructions
Exhibit B:Form of Bill of Sale
Exhibit C:Form of Licensee Instruction Letter
Exhibit D:Form of Licensee Consent
Exhibit E-1:License Agreement
Exhibit E-2: KTB Agreement
Exhibit F: Form of Power of Attorney
Index of Schedules
Schedule 1.1:Aldoxorubicin Structure
ROYALTY PURCHASE AGREEMENT
This ROYALTY PURCHASE AGREEMENT, dated as of June 21, 2023 (this “Agreement”), is made and entered into by and between LadRx Corporation (formerly known as CytRx Corporation), a Delaware corporation (the “Seller”), on the one hand, and XOMA (US) LLC, a Delaware limited liability company (the “Buyer”), on the other hand.
W I T N E S S E T H:
WHEREAS, pursuant to the License Agreement, the Seller granted to Licensee an exclusive license with respect to the Licensed IP to (among other activities) sell the Licensed Product in the Territory, and Licensee, in partial consideration thereof, agreed to pay the Royalty and other payments to the Seller; and
WHEREAS, the Buyer desires to purchase the Purchased Assets from the Seller, and the Seller desires to sell the Purchased Assets to the Buyer.
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, the Seller and the Buyer hereby agree as follows:
“Affiliate” shall have the meaning ascribed thereto in Section 1 of the License Agreement.
“Agreement” is defined in the preamble.
“Aldoxorubicin” means the pharmaceutical product known as aldoxorubicin with the chemical structure set forth on Schedule 1.1.
“Applicable Patents” is defined in Section 6.13(c).
“Assignment Agreement” means that certain assignment and assumption agreement, dated and effective as of the date hereof, by and between the Seller and the Buyer.
“Bankruptcy Laws” means, collectively, bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance, fraudulent transfer or other similar laws affecting the enforcement of creditors’ rights generally.
“Bill of Sale” is defined in Section 3.3.
“Business Day” means any day other than (i) a Saturday or Sunday or (ii) a day on which banking institutions located in New York, USA are permitted or required by applicable law or regulation to remain closed.
“Buyer” is defined in the preamble.
“Buyer Fundamental Representations” means the representations and warranties contained in Section 5.1 (Existence; Good Standing), Section 5.2 (Authorization), Section 5.3 (Enforceability), Section 5.4 (No Conflicts), and Section 5.8 (Brokers’ Fees).
“Buyer Incumbency Certificate” is defined in Section 3.2(b).
“Buyer Indemnified Parties” is defined in Section 8.1(a).
“Buyer Transaction Expenses” is defined in Section 10.2.
“Closing” is defined in Section 3.1.
“Closing Date” means the date on which the Closing occurs.
“Confidential Information” is defined in Section 7.1.
“Data Room” is defined in Section 3.10.
“Disclosing Party” is defined in Section 7.1.
“Disclosure Schedule” means the Disclosure Schedule, dated as of the date hereof, delivered to the Buyer by the Seller concurrently with the execution of this Agreement.
“Excluded Liabilities and Obligations” is defined in Section 2.3.
“FDA” means the U.S. Food and Drug Administration, or a successor federal agency thereto in the United States.
“FDA Approval” means payment by Licensee of the milestone payment designated as “First FDA approval of Licensed Product” as set forth in Section 3(a)(i) of the License Agreement.
“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 in Section 8.2.
“Indemnifying Party” is defined in Section 8.2.
“Judgment” means any judgment, order, writ, injunction, citation, award or decree of any nature issued by a competent Governmental Entity.
“Knowledge of the Seller” means the actual knowledge of the Knowledge Parties.
“Knowledge Parties” means [***].
“KTB” means KTB Tumorforschungs GmbH (Tumor Biology Center), a privately-held corporation, and any successor thereof, as permitted pursuant to the terms of the KTB Agreement.
“KTB Agreement” shall have the meaning ascribed thereto in Section 1 of the License Agreement.
“KTB Patent Rights” shall have the meaning ascribed to the term Licensed Patent Rights in Section 1.7 of the KTB Agreement.
“License Agreement” means that certain Exclusive License Agreement, dated and effective as of July 27, 2017, as modified by that certain Reimbursement Agreement dated and effective as of October 3, 2017, and that certain Addendum to License Agreement, dated and effective as of September 27, 2018, by and between the Seller and Licensee.
“Licensed Know How” shall have the meaning ascribed thereto in Section 1 of the License Agreement.
“Licensed IP” means, collectively, the Licensed Patents and the Licensed Know How.
“Licensed Patents” shall have the meaning ascribed thereto in Section 1 of the License Agreement.
“Licensed Product” shall have the meaning ascribed thereto in Section 1 of the License Agreement.
“Licensee” means ImmunityBio, Inc. (formerly known as NantCell, Inc.) and any successor thereof, as permitted pursuant to the terms of this Agreement and the License Agreement.
“Licensee Consent” is defined in Section 3.5.
“Licensee Instruction Letter” is defined in Section 3.4.
“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.
“Material Adverse Effect” shall mean (i) a material adverse effect on: (a) the legality, validity or enforceability of any provision of this Agreement, (b) the ability of the Seller to perform any of its obligations hereunder, (c) the rights or remedies of the Buyer hereunder, (d) the rights
of the Seller under the License Agreement, or (e) the validity or enforceability of any of the Licensed Patents; or [***].
“Milestone Payments” means (i) 100% of the regulatory milestones payable to the Seller under Section 3(a) of the License Agreement and (ii) 100% of the commercial milestones payable to Seller under Section 3(b) of the License Agreement.
“Net Sales” shall have the meaning ascribed thereto in Section 1 of the License Agreement.
“Opinions” is defined in Section 3.6.
“Patent Rights” shall have the meaning ascribed to the term Patents in Section 1 of the License 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 proceedings 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 the Seller).
“Permitted Reduction” means a Royalty Reduction pursuant to Section 4(b) of the License Agreement (as limited by Section 4(c) of the License Agreement), excluding any such Royalty Reduction that is attributable to Seller Withholding Taxes.
“Person” means any corporation, limited or general partnership, limited liability company, joint venture, trust, unincorporated association, Governmental Entity, authority, bureau or agency, any other entity or body, or an individual.
“Power of Attorney” is defined in Section 3.9.
“Prime Rate” means the prime rate published by the Wall Street Journal, from time to time, as the prime rate.
“Proceeds” means any amounts actually recovered by the Seller as a result of any settlement or resolution of any actions, suits, proceedings, claims or disputes related to the License Agreement related to or involving the Purchased Assets.
“Purchase Price” means the aggregate purchase price of $5,000,000, to be allocated between this Agreement and the Assignment Agreement as set forth in Section 2.1(b).
“Purchased Assets” means collectively, (i) the Purchased Receivables and (ii) the Shared Rights.
“Purchased Receivables” means (i) all Royalty payments and Milestone Payments; (ii) all payments or amounts payable to the Seller under the License Agreement in lieu of such payments
of the foregoing clause (i); (iii) any damages, settlements or other monetary awards recovered by Seller or any payments or amounts payable to the Seller, in each case, under Section 5(g) of the License Agreement; (iv) any payments or amounts payable to the Seller under Section 4(h) of the License Agreement; (v) any interest payments to the Seller under Section 4(e) of the License Agreement assessed on any payments described in the foregoing clauses (i), (ii), (iii) and (iv); (vi) any payments or amounts payable to the Seller under Section 9(b) of the License Agreement to the extent such payments relate to any payments described in the foregoing clauses (i), (ii), (iii), (iv), and (v); and (vii) and Proceeds payable to the Buyer in accordance with this Agreement.
“Receivables” means 100% of all payments due to the Seller under the License Agreement.
“Receiving Party” is defined in Section 7.1.
“Representative” means, with respect to any Person, (i) any direct or indirect stockholder, member or partner of such Person and (ii) any manager, director, officer, employee, agent, advisor or other representative (including attorneys, accountants, consultants, bankers, financial advisors and actual and potential lenders and investors) of such Person.
“Royalty” means all payments payable to Seller under Section 4(a) of the License Agreement with respect to Net Sales of a Licensed Product, subject to Sections 4(b) and 4(c) of the License Agreement.
“Royalty Reduction” is defined in Section 4.9(l).
“Royalty Reports” means the quarterly reports deliverable by Licensee pursuant to Section 4(e) of the License Agreement setting forth Net Sales of the Licensed Products in the Territory on a country-by-country basis.
“Seller” is defined in the preamble.
“Seller Closing Certificate” is defined in Section 3.2(a).
“Seller Fundamental Representations” means the representations and warranties contained in Section 4.1 (Existence; Good Standing), Section 4.2 (Authorization), Section 4.3 (Enforceability), Section 4.4 (No Conflicts), Section 4.9 (License Agreement), Section 4.10 (Title to Purchased Assets), Section 4.11 (Intellectual Property), Section 4.12 (UCC Representations and Warranties), and Section 4.13. (Brokers’ Fees).
“Seller Indemnified Parties” is defined in Section 8.1(b).
“Seller Withholding Taxes” means any deduction of any withholding taxes, value-added taxes or other taxes, levies or charges pursuant to the License Agreement as a result of any action by the Seller after the Closing Date, such as an assignment or re-domiciliation by the Seller, or any failure on the part of the Seller to comply with applicable law (such withholding tax, “Seller Withholding Taxes”).
“Shared Rights” means, collectively, solely to the extent that the Purchased Receivables are actually due and payable, the rights of the Seller under the License Agreement to bring any
action, demand, proceeding or claim, whether in law or in equity, to enforce any rights to receive the Purchased Receivables.
“Territory” shall have the meaning ascribed thereto in Section 1 of the License Agreement and for purposes of this Agreement and the License Agreement shall include all countries of the world.
“UCC” means Article 9 of the New York Uniform Commercial Code, as in effect from time to time.
“Valid Claim” shall have the meaning ascribed thereto in Section 1.20 of the KTB Agreement.
“Zevra Agreement” shall have the meaning ascribed thereto in the Recitals of the Assignment Agreement.
convenience only, do not constitute a part of this Agreement and shall not control or affect, in any way, the meaning or interpretation of this Agreement.
All Excluded Liabilities and Obligations shall be retained by and remain liabilities and obligations of the Seller or the Seller’s Affiliates, as the case may be. Except as specifically set forth herein in respect of the Purchased Assets purchased, acquired and accepted hereunder, the Buyer does not, by such purchase, acquisition and acceptance, acquire any other contract rights of the Seller under the License Agreement or any other assets of the Seller.
including an opinion by Richards, Layton & Finger, P.A. that the authorization by the stockholders of the Seller of the transactions contemplated hereby is not required under Section 271 of the Delaware General Corporation Law (the “Opinions”).
The Seller represents and warrants to the Buyer that as of the date hereof:
MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE, AND ANY SUCH OTHER REPRESENTATIONS OR WARRANTIES ARE HEREBY EXPRESSLY DISCLAIMED. Buyer Acknowledges and agrees that, except FOR FRAUD, WILLFUL MISCONDUCT, INTENTIONAL MISREPRESENTATION, INTENTIONAL BREACH, AND as expressly set forth in any representation or warranty in Article 4, Buyer shall have no claim or right regarding to losses or damages pursuant to SECTION 8.1(a)[***].
The Buyer represents and warrants to the Seller that as of the date hereof:
than the filing of financing statement(s) in accordance with Section 2.4, or (iii) the consummation by the Buyer of any of the transactions contemplated by this Agreement.
the Purchased Receivables or (ii) waive any obligation of, or grant any consent to, the Licensee under, in respect of or related to the Purchased Assets. The Seller shall not, without the prior written consent of Buyer, exercise or enforce the Seller’s applicable rights under the License Agreement in any manner that would result in a breach of this Agreement or otherwise reasonably be expected (with or without the giving of notice or the passage of time, or both) to have a Material Adverse Effect. The Seller shall not, without the prior written consent of the Buyer, enter into any new agreement or legally binding arrangement in respect of the Licensed Patents.
(c)Allocation of Proceeds and Costs of Enforcement. Each of the Buyer and the Seller shall bear its own fees and expenses incurred in enforcing the applicable counterparty’s obligations under the License Agreement pursuant to this Section 6.10, provided that the Buyer shall pay all costs and expenses pursuant to Section 6.10(b). The Proceeds resulting from any enforcement of the applicable counterparty’s obligations under the License Agreement undertaken at the Buyer’s request pursuant to this Section 6.10 shall be applied first to reimburse the Seller and the Buyer for any expenses incurred by them in connection with such enforcement, with the remainder of the Proceeds distributed to the Buyer. The Seller hereby assigns, and, if not presently assignable, agrees to assign, to the Buyer the amount of Proceeds due to the Buyer in accordance with this Section 6.10. Notwithstanding anything to the contrary, nothing in this Section 6.10 shall reduce the payments by Buyer of the payment obligations set forth in Section 2.2.
with respect to which an Indemnified Party intends to claim any Loss under this Article 8, such Indemnified Party shall promptly notify the Indemnifying Party of such claim, action, suit or proceeding and tender to the Indemnifying Party the defense of such claim, action, suit or proceeding. A failure by an Indemnified Party to give notice and to tender the defense of such claim, action, suit or proceeding in a timely manner pursuant to this Section 8.2 shall not limit the obligation of the Indemnifying Party under this Article 8, except to the extent such Indemnifying Party is actually prejudiced thereby.
into any settlement with respect to, such claim in any manner it may reasonably deem to be appropriate, (b) subject to the limitations set forth in Section 8.3, the Indemnifying Party shall reimburse the Indemnified Party promptly and periodically for the reasonable out-of-pocket costs of defending against such claim, including reasonable attorneys’ fees and expenses against reasonably detailed invoices, and (c) the Indemnifying Party shall remain responsible for any Losses the Indemnified Party may suffer as a result of such claim to the full extent provided in this Article 8.
If to the Seller, to it at:
11726 San Vicente Blvd.
Los Angeles, CA 90049
With a copy to:
Haynes and Boone, LLP
30 Rockefeller Plaza
New York, NY 10112
If to the Buyer, 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
San Francisco, CA 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 Business Day following sending within the United States by overnight delivery via commercial one-day overnight courier service.
[Signature Page Follows]
IN WITNESS WHEREOF, the parties hereto have caused this Royalty Purchase Agreement to be executed and delivered by their respective representatives thereunto duly authorized as of the date first above written.
Name: Dr. Stephen Snowdy
Title: Chief Executive Officer
XOMA (US) LLC
Name: Bradley Sitko
Title: Chief Investment Officer
[SIGNATURE PAGE TO THE ROYALTY PURCHASE AGREEMENT]
Form of Bill of Sale
Form of Licensee Instruction Letter
Form of Power of Attorney