COMMERCIAL PAYMENT PURCHASE AGREEMENT
EXECUTION COPY
Exhibit 10.48
[*] = Certain confidential information contained in this document, marked by brackets, has been omitted because it is both (i) not material and (ii) is the type that the registrant treats as private or confidential.
COMMERCIAL PAYMENT PURCHASE AGREEMENT
dated as of October 6, 2021
between
Affitech Research AS, as Seller,
and
XOMA (US) LLC, as Purchaser
COMMERCIAL PAYMENT PURCHASE AGREEMENT
This COMMERCIAL PAYMENT PURCHASE AGREEMENT (this “Agreement”), dated as of October 6, 2021 (the “Effective Date”), is between AFFITECH RESEARCH AS (formerly known as Affitech AS), a Norwegian company with the organization number 976 567 900, with their office and place of business at Xxxxxxxxx XX, 0000 Xxxx, Xxxxxx (“Seller” or “Assignor”), and XOMA (US) LLC, a Delaware limited liability company with its principal place of business at 0000 Xxxxxx Xxxxxx, Xxxxx 000, Xxxxxxxxxx, Xxxxxxxxxx 00000 (“Purchaser” or “Assignee”).
W I T N E S E T H:
WHEREAS, Seller and its Affiliates (collectively, “Affitech”) on the one hand, and X. Xxxxxxxx-Xx Xxxxx Ltd, with an office and place of business at Xxxxxxxxxxxxxxxxx 000, 0000 Xxxxx, Xxxxxxxxxxx (“Roche Basel”) and Xxxxxxxx-Xx Xxxxx Inc., with an office and place of business at 000 Xxxxx Xxxx, Xxxxx 0, Xxxxxx Xxxxx, Xxx Xxxxxx 00000, X.X.X. (“Roche Little Falls”; Roche Basel and Roche Little Falls together referred to as “Roche”) on the other hand, were parties to that certain Research and License Agreement effective as of May 4, 2007 (the “Roche License Agreement”), pursuant to which Affitech performed certain research and granted Roche certain rights and licenses;
WHEREAS, pursuant to that certain Asset Purchase Agreement, effective as of December 14, 2020, by and between Affitech and Roche (the “Roche APA”), the parties thereto terminated and superseded the Roche License Agreement, and, among other matters, Affitech sold to Roche certain assets and granted to Roche certain rights and licenses in exchange for certain payments to be made by Roche to Affitech or its assignee;
WHEREAS, Seller has [*] (as defined in the Roche APA) under the Roche APA and provided written notice and instructions to Roche as required thereunder and, as a result, is entitled to receive such payments in the amount of 0.5% of Net Sales of Products, pursuant to and subject to the terms and conditions of the Roche APA;
WHEREAS, Seller now desires to sell, assign, transfer, convey and grant to Purchaser, free and clear of all Liens (as defined below), and Purchaser desires to purchase, acquire and accept from Seller, the Purchased Commercial Payments (as defined below), upon the terms and subject to the conditions set forth in this Agreement.
NOW, THEREFORE, in consideration of the premises and the mutual agreements, representations and warranties set forth herein, and of other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the parties hereto (each a “Party,” and collectively, the “Parties”) covenant and agree as follows:
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[*] = Certain confidential information contained in this document, marked by brackets, has been omitted because it is both (i) not material and (ii) is the type that the registrant treats as private or confidential.
“Affiliate” means, with respect to any Person, any other Person that, directly or indirectly through one or more intermediaries, Controls or is Controlled by or is under common Control with such Person.
“Affitech” has the meaning set forth in the recitals.
“Agreement” has the meaning set forth in the preamble.
“Applicable Law” means, with respect to any Person, all laws, rules, regulations and orders of Governmental Authorities applicable to such Person or any of its properties or assets.
“Assigned Commercial Payments” has the meaning set forth in the Assignment Agreement.
“Assignment Agreement” means the Assignment Agreement executed by Roche, Seller and Purchaser, substantially in the form attached hereto as Exhibit 1.
“Bankruptcy Event” means the occurrence of any of the following in respect of a Person: (a) an admission in writing by such Person of its inability to pay its debts generally or a general assignment by such Person for the benefit of creditors; (b) the filing of any petition or answer by such Person seeking to adjudicate itself as bankrupt or insolvent, or seeking for itself any liquidation, winding-up, reorganization, arrangement, adjustment, protection, relief or composition of such Person or its debts under any Applicable Law relating to bankruptcy, insolvency, receivership, winding-up, liquidation, reorganization, examination, relief of debtors or other similar Applicable Law now or hereafter in effect, or seeking, consenting to or acquiescing in the entry of an order for relief in any case under any such Applicable Law, or the appointment of or taking possession by a receiver, trustee, custodian, liquidator, examiner, assignee, sequestrator or other similar official for such Person or for any substantial part of its property; (c) corporate or other entity action taken by such Person to authorize any of the actions set forth in clause (a) or clause (b) above; or (d) without the consent or acquiescence of such Person, the entering of an order for relief or approving a petition for relief or reorganization or any other petition seeking any reorganization, arrangement, composition, readjustment, liquidation, dissolution or other similar relief under any present or future bankruptcy, insolvency or similar Applicable Law, or the filing of any such petition against such Person, or, without the consent or acquiescence of such Person, the entering of an order appointing a trustee, custodian, receiver or liquidator of such Person or of all or any substantial part of the property of such Person, in each case where such petition or order shall remain unstayed or shall not have been stayed or dismissed within ninety (90) days from entry thereof; provided that in the case of an involuntary petition, such Person has not challenged such petition within ninety (90) days thereof.
“Xxxx of Sale” means that certain xxxx of sale dated as of the Closing Date executed by Seller and Purchaser substantially in the form attached hereto as Exhibit 2.
“Business Day” means any day that is not a Saturday, Sunday or other day on which commercial banks in California are authorized or required by Applicable Law to remain closed.
“CDA” has the meaning set forth in Section 7.9.
“Closing” has the meaning set forth in Section 2.5.
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[*] = Certain confidential information contained in this document, marked by brackets, has been omitted because it is both (i) not material and (ii) is the type that the registrant treats as private or confidential.
“Closing Date” has the meaning set forth in Section 2.5.
“Control” means the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of a Person, whether through the ability to exercise voting power, by contract or otherwise. “Controlling” and “Controlled” have meanings correlative thereto.
“Dollar” or the sign “$” means United States dollars.
“EMA” shall mean the European Medicines Agency and any successor agency thereto.
“Excluded Liabilities and Obligations” has the meaning set forth in Section 2.3.
“FDA” means the U.S. Food and Drug Administration and any successor agency thereto.
“GAAP” means generally accepted accounting principles in effect in the United States from time to time.
“Governmental Authority” means the government of the United States, any other nation or any political subdivision thereof, whether state or local, and any agency, authority (including supranational authority), commission, instrumentality, regulatory body, self-regulatory body, court, central bank or other Person exercising executive, legislative, judicial, taxing, regulatory or administrative powers or functions of or pertaining to government, including the FDA, the EMA and any other government authority in any jurisdiction.
“Lien” means any security interest, mortgage, pledge, hypothecation, assignment, deposit arrangement, encumbrance, lien (statutory or otherwise), charge against or interest in property or other priority or preferential arrangement of any kind or nature whatsoever, in each case to secure payment of a debt or other liability or performance of an obligation, including any conditional sale or any sale with recourse.
“Net Sales” has the meaning given to it in the Assignment Agreement.
“Party” and “Parties” has the meaning set forth in the preamble.
“Payment Period” has the meaning given to it in the Assignment Agreement.
“Permitted Liens” means any Liens created, permitted or required by the Transaction Documents in favor of Purchaser or its Affiliates.
“Person” means any natural person, firm, corporation, limited liability company, partnership, joint venture, association, joint-stock company, trust, unincorporated organization, Governmental Authority or any other legal entity, including public bodies, whether acting in an individual, fiduciary or other capacity.
“Product” has the meaning given to it in the Assignment Agreement.
“Product Approval” means, with respect to the Product for a particular indication, a successful biologics license application (BLA) or new drug application (NDA) approval by the FDA or
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[*] = Certain confidential information contained in this document, marked by brackets, has been omitted because it is both (i) not material and (ii) is the type that the registrant treats as private or confidential.
marketing authorization application (MAA) grant by the EMA, as applicable, of the Product for such indication, the official approval of which is required before any lawful commercial sale or marketing of the Product for such indication.
“Purchase Price” has the meaning set forth in Section 2.2.
“Purchased Commercial Payments” or “Purchased Assets” means all of Seller’s rights under the Roche APA to receive or obtain:
“Purchaser” has the meaning set forth in the preamble.
“Purchaser Account” means Purchaser’s deposit account with Silicon Valley Bank which account Purchaser may change from time to time by furnishing written notice to Roche.
“Roche” has the meaning set forth in the recitals.
“Roche Basel” has the meaning set forth in the recitals.
“Roche Little Falls” has the meaning set forth in the recitals.
“Roche APA” has the meaning set forth in the recitals.
“Roche License Agreement” has the meaning set forth in the recitals.
“SEC” means the U.S. Securities and Exchange Commission.
“Seller” has the meaning set forth in the preamble.
“Seller Account” means the Seller’s account with DB Norway which account Seller may change from time to time by furnishing written notice to Purchaser.
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[*] = Certain confidential information contained in this document, marked by brackets, has been omitted because it is both (i) not material and (ii) is the type that the registrant treats as private or confidential.
“Set-off” means any set-off, off-set, rescission, counterclaim, credit, reduction, or deduction, including any of the foregoing resulting from Seller’s breach of the Roche License Agreement, Roche APA, or the Assignment Agreement.
“Tax” or “Taxes” means any federal, state, local or non-U.S. 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.
“Third Party” shall mean any Person other than Seller or Purchaser or their respective Affiliates.
“Transaction Documents” means this Agreement, the Settlement Agreement (as defined in the Assignment Agreement), the Assignment Agreement, the Xxxx of Sale, and the CDA.
“U.S.” or “United States” means the United States of America, its fifty (50) states, each territory thereof and the District of Columbia.
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[*] = Certain confidential information contained in this document, marked by brackets, has been omitted because it is both (i) not material and (ii) is the type that the registrant treats as private or confidential.
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[*] = Certain confidential information contained in this document, marked by brackets, has been omitted because it is both (i) not material and (ii) is the type that the registrant treats as private or confidential.
Milestone Event achieved by Roche | Affitech Milestone Payment |
Product Approval in the U.S. of the Product for a first (1st) indication by FDA | Two million, five hundred thousand Dollars ($2,500,000 USD) |
[*] | [*] |
Product Approval in the U.S. of the Product for a second (2nd) indication by FDA | Two million, five hundred thousand Dollars ($2,500,000 USD) |
[*] | [*] |
Total Affitech Milestone Payments possible under this Section 2.2(b)(i): | [*] |
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[*] = Certain confidential information contained in this document, marked by brackets, has been omitted because it is both (i) not material and (ii) is the type that the registrant treats as private or confidential.
Annual Net Sales Threshold | Affitech Milestone Payment |
---|---|
First Calendar Year ending on or before [*] in which Roche’s Annual Net Sales of the Product exceed [*] in such Calendar Year* | [*] |
First Calendar Year in which Roche’s Annual Net Sales of the Product exceed [*] in such Calendar Year | [*] |
First Calendar Year in which Roche’s Annual Net Sales of the Product exceed [*] in such Calendar Year | [*] |
First Calendar Year in which Roche’s Annual Net Sales of the Product exceed [*] in such Calendar Year | [*] |
Total Affitech Milestone Payments possible under this Section 2.2(b)(ii): | [*] |
*If the first Annual Net Sales Threshold set forth in the table above is not achieved in a given Calendar Year prior to [*], the corresponding first Affitech Milestone Payment of [*] shall terminate and shall not be payable (regardless of whether the corresponding Annual Net Sales threshold is later achieved), although other Affitech Milestone Payments set forth above remain eligible to become payable upon achievement of the Annual Net Sales thresholds corresponding to such other Affitech Milestone Payments as otherwise required in this Section 2.2(b).
For clarity, each of the foregoing Affitech Milestone Payments shall only be paid once, regardless of whether such Annual Net Sales Threshold is subsequently achieved in a future Calendar Year. In the event that more than one of the foregoing Annual Net Sales Thresholds is first achieved in a single Calendar Year, then the corresponding sales-based Affitech Milestone Payment for each such milestone event shall be payable to Seller hereunder.
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[*] = Certain confidential information contained in this document, marked by brackets, has been omitted because it is both (i) not material and (ii) is the type that the registrant treats as private or confidential.
Agreement via electronic delivery of the executed Transaction Documents and other deliverables. The date on which the Closing occurs is referred to herein as the “Closing Date”.
Seller hereby represents and warrants to Purchaser as follows:
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[*] = Certain confidential information contained in this document, marked by brackets, has been omitted because it is both (i) not material and (ii) is the type that the registrant treats as private or confidential.
small capital with which to engage in its business and will not be unable to pay its debts as they mature; (e) Seller has not incurred, will not incur and does not have any present plans or intentions to incur debts, liabilities or other obligations beyond its ability to pay such debts, liabilities or other obligations as they become absolute and matured; (f) Seller will not have become subject to any Bankruptcy Event; (g) after the Closing, Seller will have enough capital to operate its business for at least one (1) year following the Closing; and (h) Seller will not have been rendered insolvent within the meaning of Section 101(32) of Title 11 of the United States Code. No step has been taken or is intended by Seller or, to the knowledge of Seller, any other Person to make Seller subject to a Bankruptcy Event,
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[*] = Certain confidential information contained in this document, marked by brackets, has been omitted because it is both (i) not material and (ii) is the type that the registrant treats as private or confidential.
Purchaser hereby represents and warrants to Seller as of the date hereof as follows:
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[*] = Certain confidential information contained in this document, marked by brackets, has been omitted because it is both (i) not material and (ii) is the type that the registrant treats as private or confidential.
cancellation or termination of, constitute a default, give any Person the right to exercise any remedy or obtain any additional rights under any term or provision of (a) any contract, agreement, commitment, or obligation to which Purchaser or any of its Affiliates is a party or by which Purchaser or any of its Affiliates or any of their respective assets or properties is bound or committed or (b) any of the organizational documents of Purchaser.
The Parties covenant and agree as follows:
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[*] = Certain confidential information contained in this document, marked by brackets, has been omitted because it is both (i) not material and (ii) is the type that the registrant treats as private or confidential.
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[*] = Certain confidential information contained in this document, marked by brackets, has been omitted because it is both (i) not material and (ii) is the type that the registrant treats as private or confidential.
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[*] = Certain confidential information contained in this document, marked by brackets, has been omitted because it is both (i) not material and (ii) is the type that the registrant treats as private or confidential.
if to Seller, to:
Affitech Research AS
Xxxxxxxxx 0X
0000 Xxxx
Xxxxxx
Attn: Managing Director
Email: [*]
with a copy to (which shall not constitute notice):
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[*] = Certain confidential information contained in this document, marked by brackets, has been omitted because it is both (i) not material and (ii) is the type that the registrant treats as private or confidential.
Actigen Ltd
St. John’s Innovation Centre
Xxxxxx Xxxx, Xxxxxxxxx
XX0 0XX
Xxxxxx Xxxxxxx
Attn: Managing Director
if to Purchaser, to:
XOMA (US) LLC
0000 Xxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxxx, XX 00000
Attention: Legal Department
Telephone: [*]
Facsimile: [*]
Email: [*]
with a copy to (which shall not constitute notice):
Xxxx Xxxxxxxx LLP
0000 Xxxxxxxxx Xxxxx
Xxxxxxx Xxxxx
Xxx Xxxxx, XX 00000
Attention: Xxxxx Xxxxxxxxxx
Telephone: (000) 000-0000
Email: xxxxx@xxxxxxxxxxxx.xxx
Each Party may, by notice given in accordance herewith to the other Party, designate any further or different address to which subsequent notices, consents, waivers and other communications shall be sent.
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[*] = Certain confidential information contained in this document, marked by brackets, has been omitted because it is both (i) not material and (ii) is the type that the registrant treats as private or confidential.
unconditionally in a written document all obligations of its assignor under this Agreement and delivers to the non-assigning Party such written document at least [*] Business Days prior to the consummation of the applicable transaction. Any purported assignment in violation of this Section 7.5 shall be null and void ab initio.
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[*] = Certain confidential information contained in this document, marked by brackets, has been omitted because it is both (i) not material and (ii) is the type that the registrant treats as private or confidential.
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[*] = Certain confidential information contained in this document, marked by brackets, has been omitted because it is both (i) not material and (ii) is the type that the registrant treats as private or confidential.
waiver or approval hereunder shall require any similar or dissimilar waiver or approval thereafter to be granted hereunder.
[SIGNATURE PAGE FOLLOWS]
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[*] = Certain confidential information contained in this document, marked by brackets, has been omitted because it is both (i) not material and (ii) is the type that the registrant treats as private or confidential.
IN WITNESS WHEREOF, the Parties have executed this Agreement as of the Effective Date.
Affitech Research AS
By: /s/ Xxxxxxx Xxxxxxxxx
Name: Xxxxxxx Xxxxxxxxx
Title: Managing Director
XOMA (US) LLC
By: /s/ Xxx Xxxx
Name: Xxx Xxxx
Title: Chief Executive Officer
Exhibit List
Exhibit A: Form of Assignment Agreement
Exhibit B: Xxxx of Sale
Exhibit C: Roche APA
[*] = Certain confidential information contained in this document, marked by brackets, has been omitted because it is both (i) not material and (ii) is the type that the registrant treats as private or confidential.