FOURTH AMENDMENT TO LOAN AND SECURITY AGREEMENT
EXHIBIT 10.16
CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY [***], HAS BEEN OMITTED BECAUSE IT IS NOT MATERIAL AND WOULD LIKELY CAUSE COMPETITIVE HARM TO THE COMPANY IF PUBLICLY DISCLOSED.
Execution Version
FOURTH AMENDMENT TO LOAN AND SECURITY AGREEMENT
THIS FOURTH AMENDMENT TO LOAN AND SECURITY AGREEMENT (this “Amendment”),
dated as of March 25, 2022 (the “Amendment Effective Date”), is made among Kaleido Biosciences, Inc., a Delaware corporation, and each of its Qualified Subsidiaries (including Xxxxxx Bio, Inc., a Delaware corporation) (collectively, jointly and severally, “Borrower”), the several banks and other financial institutions or entities from time to time parties to the Loan Agreement (as defined below) (collectively, the “Lenders”) and Hercules Capital, Inc., a Maryland corporation, in its capacity as administrative agent and collateral agent for itself and the Lenders (in such capacity, “Agent”).
Borrower, the Lenders and Agent are parties to that certain Loan and Security Agreement, dated as of December 31, 2019, as amended by that certain First Amendment to Loan and Security Agreement, dated as of April 10, 2020, that certain Second Amendment to Loan and Security Agreement, dated as of June 15, 2020 and that certain Third Amendment to Loan and Security Agreement, dated as of April 30, 2021 (the “Existing Loan Agreement”; and the Existing Loan Agreement, as amended by this Amendment and as further amended, restated, supplemented or otherwise modified from time to time, the “Loan Agreement”). Borrower has requested that Agent and the Lenders agree to certain amendments to the Existing Loan Agreement and consent to its making a partial prepayment of the outstanding Tranche 1 Advance in a principal amount of $15,000,000. Agent and the Lenders have agreed to such request, subject to the terms and conditions hereof (and notwithstanding the provisions of Section 2.5 of the Existing Loan Agreement in respect of Borrower’s request to make a partial prepayment).
Accordingly, the parties hereto agree as follows:
SECTION 1 Definitions; Interpretation.
SECTION 2 Amendments to the Loan Agreement.
hereby;
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SECTION 3 Conditions of Effectiveness. The effectiveness of Section 2 of this Amendment shall be subject to the satisfaction of each of the following conditions precedent:
Event of Default.
SECTION 4 Representations and Warranties. To induce Agent and the Lenders to enter into this Amendment, Borrower hereby confirms, as of the date hereof, (a) that the representations and warranties made by it in Section 5 of the Loan Agreement and in the other Loan Documents are true and correct in all material respects; provided, however, that such materiality qualifier shall not be applicable to any representations and warranties that already are qualified or modified by materiality in the text thereof; provided, further, that to the extent such representations and warranties by their terms expressly relate only to a prior date such representations and warranties shall be true and correct in all material respects as of such prior date, and that no Event of Default has occurred and is continuing; (b) Agent has and shall continue to have valid, enforceable and perfected first-priority liens, subject only to Permitted Liens, on and security interests in the Collateral and all other collateral heretofore granted by Borrower to Agent, pursuant to the Loan Documents or otherwise granted to or held by Agent; (c) the agreements and obligations of Borrower contained in the Loan Documents and in this Amendment constitute the legal, valid and binding obligations of Borrower, enforceable against Borrower in accordance with their respective terms, except as the enforceability thereof may be limited by bankruptcy, insolvency or other similar laws of general application affecting the enforcement of creditors’ rights or by the application of general principles of equity; and (d) the execution, delivery and performance of this Amendment by Borrower will not violate any law, rule, regulation, order, contractual obligation or organizational document of Borrower and will not result in, or require, the creation or imposition of any lien, claim or encumbrance of any kind on any of its properties or revenues. For the purposes of this Section 4, each reference in Section 5 of the Loan Agreement to “this Agreement,” and the words “hereof,” “herein,” “hereunder,” or words of like import in such Section, shall mean and be a reference to the Existing Loan Agreement as amended by this Amendment.
SECTION 5 Miscellaneous.
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Obligations under or in connection with the Loan Agreement and any other Loan Document or to modify, affect or impair the perfection or continuity of Agent’s security interest in, (on behalf of itself and the Lenders) security titles to or other liens on any Collateral for the Secured Obligations.
Each Borrower understands, acknowledges and agrees that the release set forth above may be pleaded as a full and complete defense and may be used as a basis for an injunction against any action, suit or other proceeding which may be instituted, prosecuted or attempted in breach of the provisions of such release. Each Borrower agrees that no fact, event, circumstance, evidence or transaction which could now be asserted or which may hereafter be discovered shall affect in any manner the final, absolute and unconditional nature of the release set forth above. Each Borrower waives the provisions of California Civil Code Section 1542, which states:
A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS THAT THE CREDITOR OR RELEASING PARTY DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE AND THAT, IF KNOWN BY HIM OR HER, WOULD HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR OR RELEASED PARTY.
The provisions of this section shall survive payment in full of the Secured Obligations, full performance of all the terms of this Amendment and the other Loan Documents.
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IN WITNESS WHEREOF, the parties hereto have duly executed this Amendment, as of the date first above
written.
BORROWER:
Signature:
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[Signature Page to Fourth Amendment to Loan and Security Agreement]
Print Name: Title:
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[Signature Page to Fourth Amendment to Loan and Security Agreement]
Xxx Xxxxxxxxxx
Chief Executive Officer
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[Signature Page to Fourth Amendment to Loan and Security Agreement]
XXXXXX BIO, INC.
Signature:
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[Signature Page to Fourth Amendment to Loan and Security Agreement]
Print Name: Title:
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[Signature Page to Fourth Amendment to Loan and Security Agreement]
Xxx Xxxxxxxxxx
Chief Executive Officer
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[Signature Page to Fourth Amendment to Loan and Security Agreement]
[SIGNATURES CONTINUE ON THE NEXT PAGE]
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[Signature Page to Fourth Amendment to Loan and Security Agreement]
AGENT:
HERCULES CAPITAL, INC.
Signature:
Print Name: Xxxxxxxx Xxxx
Title: Associate General Counsel
LENDER:
HERCULES CAPITAL, INC.
Signature:
Print Name: Xxxxxxxx Xxxx
Title: Associate General Counsel HERCULES FUNDING IV LLC
Signature:
Print Name: Xxxxxxxx Xxxx
Title: Associate General Counsel
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[Signature Page to Fourth Amendment to Loan and Security Agreement]
ANNEX A
(See Attached)
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ACTIVE/116115708.1
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Conformed Through: 1st Amendment (4/10/20); 2nd Amendment (6/15/20); 3rd Amendment (4/30/21);
4th Amendment (3/25/22)
LOAN AND SECURITY AGREEMENT
THIS LOAN AND SECURITY AGREEMENT is made and dated as of December 31, 2019 and is entered into by and among KALEIDO BIOSCIENCES, INC., a Delaware corporation (“Kaleido”), and each of its Qualified Subsidiaries (including Xxxxxx Bio, Inc., a Delaware corporation) (hereinafter collectively referred to as the “Borrower”), the several banks and other financial institutions or entities from time to time parties to this Agreement (collectively, referred to as the “Lenders”) and HERCULES CAPITAL, INC., a Maryland corporation, in its capacity as administrative agent and collateral agent for itself and the Lenders (in such capacity, the “Agent”).
RECITALS
AGREEMENT
NOW, THEREFORE, Borrower, Agent and the Lenders agree as follows:
SECTION 1. DEFINITIONS AND RULES OF CONSTRUCTION
“Account Control Agreement(s)” means any agreement entered into by and among the Agent, Borrower and a third party bank or other institution (including a Securities Intermediary) in which Borrower maintains a Deposit Account or an account holding Investment Property and which perfects Agent’s first priority security interest in the subject account or accounts.
“ACH Authorization” means the ACH Debit Authorization Agreement in substantially the form of Exhibit G, which account numbers shall be redacted for security purposes if and when filed publicly by the Borrower.
“Advance(s)” means a Term Loan Advance.
“Advance Date” means the funding date of any Advance.
“Advance Request” means a request for an Advance submitted by Borrower to Agent in substantially the form of Exhibit A, which account numbers shall be redacted for security purposes if and when filed publicly by the Borrower.
“Affiliate” means (a) any Person that directly or indirectly controls, is controlled by, or is under common control with the Person in question, (b) any Person directly or indirectly owning, controlling or holding with power to vote ten percent (10%) or more of the outstanding voting securities
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of another Person, (c) any Person ten percent (10%) or more of whose outstanding voting securities are directly or indirectly owned, controlled or held by another Person with power to vote such securities, or (d)
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ACTIVE/116115708.1
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any Person related by blood or marriage to any Person described in subsection (a), (b) or (c) of this paragraph. As used in the definition of “Affiliate,” the term “control” means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of a Person, whether through ownership of voting securities, by contract or otherwise.
“Agreement” means this Loan and Security Agreement, as amended from time to time. “Amortization Date” means April 1, 2023.
“Anti-Corruption Laws” means all laws, rules, and regulations of any jurisdiction applicable to Borrower or any of its Affiliates from time to time concerning or relating to bribery or corruption, including without limitation the United States Foreign Corrupt Practices Act of 1977, as amended, the UK Xxxxxxx Xxx 0000 and other similar legislation in any other jurisdictions.
“Anti-Terrorism Laws” means any laws, rules, regulations or orders relating to terrorism or money laundering, including without limitation Executive Order No. 13224 (effective September 24, 2001), the USA PATRIOT Act, the laws comprising or implementing the Bank Secrecy Act, and the laws administered by OFAC.
“Blocked Person” means any Person: (a) listed in the annex to, or is otherwise subject to the provisions of, Executive Order No. 13224, (b) a Person owned or controlled by, or acting for or on behalf of, any Person that is listed in the annex to, or is otherwise subject to the provisions of, Executive Order No. 13224, (c) a Person with which any Lender is prohibited from dealing or otherwise engaging in any transaction by any Anti-Terrorism Law, (d) a Person that commits, threatens or conspires to commit or supports “terrorism” as defined in Executive Order No. 13224, or (e) a Person that is named a “specially designated national” or “blocked person” on the most current list published by OFAC or other similar list.
“Borrower Products” means all products, software, service offerings, technical data or technology currently being designed, manufactured or sold by Borrower or which Borrower intends to sell, license, or distribute in the future including any products or service offerings under development, collectively, together with all products, software, service offerings, technical data or technology that have been sold, licensed or distributed by Borrower since its incorporation.
“Borrower’s Books” means Borrower’s or any of its Subsidiaries’ books and records including ledgers, federal, state, local and foreign tax returns, records regarding Borrower’s or its Subsidiaries’ assets or liabilities, the Collateral, business operations or financial condition, and all computer programs or storage or any equipment containing such information.
“Business Day” means any day other than Saturday, Sunday and any other day on which banking institutions in the State of California are closed for business.
“CARES Act” means the Coronavirus Aid, Relief and Economic Stability Act. “Cash” means all cash, cash equivalents and liquid funds.
“CFC” means a “controlled foreign corporation” as defined in Section 957 of the Code.
“CFC Holdco” means a direct or indirect Subsidiary of the Borrower substantially all of the assets of which are Equity Interests (or Equity Interests and debt interests) in one or more CFCs.
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“Change in Control” means any reorganization, recapitalization, consolidation or merger (or similar transaction or series of related transactions) of Borrower, sale or exchange of outstanding shares (or similar transaction or series of related transactions) of Borrower in which the holders of Borrower’s outstanding shares immediately before consummation of such transaction or series of related transactions do not, immediately after consummation of such transaction or series of related transactions, retain shares representing more than fifty percent (50%) of the voting power of the surviving entity of such transaction or series of related transactions (or the parent of such surviving entity if such surviving entity is wholly owned by such parent), in each case without regard to whether Borrower is the surviving entity; provided, however, that an initial public offering shall not constitute a Change in Control.
“Closing Date” means the date of this Agreement.
“Code” means the Internal Revenue Code of 1986, as amended.
“Contingent Obligation” means, as applied to any Person, any direct or indirect liability, contingent or otherwise, of that Person with respect to (i) any Indebtedness, lease, dividend, letter of credit or other obligation of another, including any such obligation directly or indirectly guaranteed, endorsed, co-made or discounted or sold with recourse by that Person, or in respect of which that Person is otherwise directly or indirectly liable; (ii) any obligations with respect to undrawn letters of credit, corporate credit cards or merchant services issued for the account of that Person; and (iii) all obligations arising under any interest rate, currency or commodity swap agreement, interest rate cap agreement, interest rate collar agreement, or other agreement or arrangement designated to protect a Person against fluctuation in interest rates, currency exchange rates or commodity prices; provided, however, that the term “Contingent Obligation” shall not include endorsements for collection or deposit in the ordinary course of business.
The amount of any Contingent Obligation shall be deemed to be an amount equal to the stated or determined amount of the primary obligation in respect of which such Contingent Obligation is made or, if not stated or determinable, the maximum reasonably anticipated liability in respect thereof as determined by such Person in good faith; provided, however, that such amount shall not in any event exceed the maximum amount of the obligations under the guarantee or other support arrangement.
“Copyright License” means any written agreement granting any right to use any Copyright or Copyright registration, now owned or hereafter acquired by Borrower or in which Borrower now holds or hereafter acquires any interest.
“Copyrights” means all copyrights, whether registered or unregistered, held pursuant to the laws of the United States of America, any State thereof, or of any other country.
“Deposit Accounts” means any “deposit accounts,” as such term is defined in the UCC, and includes any checking account, savings account, or certificate of deposit that is not evidenced by an instrument.
“Designated Account” means the account number ending [***] (last three digits), maintained by Borrower with JPMorgan Chase Bank, N.A., or any other account that Borrower designates from time to time to Agent in writing with reasonable notice.
“Domestic Subsidiary” means any Subsidiary organized under the laws of the United States of America, any State thereof, the District of Columbia, or any other jurisdiction within the United States of America.
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“Due Diligence Fee” means $20,000, which fee has been paid to the Lenders prior to the Closing Date, and shall be deemed fully earned on such date regardless of the early termination of this Agreement.
“Eligible Foreign Subsidiary” means each Foreign Subsidiary other than an Excluded
Subsidiary.
“Equity Interests” means, with respect to any Person, the capital stock, partnership or limited liability company interest, or other equity securities or equity ownership interests of such Person.
“Equity Milestone” means satisfaction of each of the following events: (a) no Event of Default shall have occurred and be continuing; and (b) Kaleido has received unrestricted (including, not subject to any redemption, clawback, escrow or similar encumbrance or restriction) net Cash proceeds of at least $15,000,000 raised from one or more bona fide equity financings, and/or Subordinated Indebtedness in each case, after the Fourth Amendment Effective Date and subject to verification by Agent (including supporting documentation reasonably requested by Agent), but excluding any Cash proceeds from the Loan.
“ERISA” means the Employee Retirement Income Security Act of 1974, as amended, and the regulations promulgated thereunder.
“Excluded Subsidiary” means (x) each direct and indirect Subsidiary of the Borrower (a) that is a CFC, (b) that is a direct or indirect Subsidiary of a CFC, or (c) that is a CFC Holdco; in each case, provided that (i) the pledge of all or substantially all of the Equity Interests of such Subsidiary as Collateral,
(ii) the guarantee by such Subsidiary of the Secured Obligations, or (iii) the execution of a Joinder Agreement by such Subsidiary, would result in material adverse tax consequences to the Borrower (as reasonably determined by the Borrower and Agent) and (y) the MSC Subsidiary.
“First Amendment” means that certain First Amendment to Loan and Security Agreement, dated as of the First Amendment Date, by and among Borrower, the Lenders and Agent.
“First Amendment Date” means April 10, 2020.
“Foreign Subsidiary” means any Subsidiary other than a Domestic Subsidiary. “Fourth Amendment Effective Date” means March 25, 2022.
“GAAP” means generally accepted accounting principles in the United States of America, as in effect from time to time.
“Human Clinical Trial” means any clinical program, tested in humans, that has received permission by the United States Food and Drug Administration under an Investigational New Drug pathway.
“Human Study” means a clinical program, tested in humans, that has not received permission by the United States Food and Drug Administration under an Investigational New Drug pathway but instead follows the pathway for food development.
“Indebtedness” means indebtedness of any kind, including (a) all indebtedness for
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borrowed money or the deferred purchase price of property or services (excluding trade credit entered into in the ordinary course of business due within ninety (90) days), including reimbursement and other
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obligations with respect to surety bonds and letters of credit, (b) all obligations evidenced by notes, bonds, debentures or similar instruments, (c) all capital lease obligations, (d) non-contingent obligations to reimburse any bank or Person in respect of amounts paid under a letter of credit, banker’s acceptance or similar instrument, (e) equity securities of any Person subject to repurchase or redemption other than at the sole option of such Person, other than any such equity securities that are subject to repurchase or redemption solely after the 91st day after the Term Loan Maturity Date, (f) earn outs, purchase price adjustments, deferred purchase amounts and similar payment obligations or any nature arising out of purchase and sale contracts, and (g) all Contingent Obligations.
“Initial Facility Charge” means One Hundred Thirty-Seven Thousand Five Hundred Dollars ($137,500), which is payable to the Lenders in accordance with Section 4.1(f).
“Insolvency Proceeding” means any proceeding by or against any Person under the United States Bankruptcy Code, or any other bankruptcy or insolvency law, including assignments for the benefit of creditors, compositions, extensions generally with its creditors, or proceedings seeking reorganization, arrangement, or other similar relief.
“Intellectual Property” means all of Borrower’s Copyrights; Trademarks; Patents; Licenses; trade secrets and inventions; mask works; Borrower’s applications therefor and reissues, extensions, or renewals thereof; and Borrower’s goodwill associated with any of the foregoing, together with Borrower’s rights to xxx for past, present and future infringement of Intellectual Property and the goodwill associated therewith.
“Investment” means any beneficial ownership (including stock, partnership, limited liability company interests, or other securities) of or in any Person, or any loan, advance or capital contribution to any Person or the acquisition of any material asset or property of another Person.
“IRS” means the United States Internal Revenue Service.
“Joinder Agreements” means for each Subsidiary (other than an Excluded Subsidiary), a completed and executed Joinder Agreement in substantially the form attached hereto as Exhibit F.
“License” means any Copyright License, Patent License, Trademark License or other license of rights or interests.
“Lien” means any mortgage, deed of trust, pledge, hypothecation, assignment for security, security interest, encumbrance, xxxx, xxxx or charge of any kind, whether voluntarily incurred or arising by operation of law or otherwise, against any property, any conditional sale or other title retention agreement, and any lease in the nature of a security interest.
“Loan” means the Advances made under this Agreement.
“Loan Documents” means this Agreement, the promissory notes (if any), the ACH Authorization, the Account Control Agreements, the Joinder Agreements, all UCC Financing Statements, the Pledge Agreement, and any other documents executed in connection with the Secured Obligations or the transactions contemplated hereby, as the same may from time to time be amended, modified, supplemented or restated.
“Material Adverse Effect” means a material adverse effect upon: (i) the business, operations, properties, assets or financial condition of Borrower and its Subsidiaries taken as a whole; or
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Loan Documents, or the ability of Agent or the Lenders to enforce any of its rights or remedies with respect to the Secured Obligations; or (iii) the Collateral or Agent’s Liens on the Collateral or the priority of such Liens (other than as a result of a failure by the Agent to make any necessary filings or maintain possession of any possessory collateral).
“Maximum Term Loan Amount” means Forty-One Million Seven Hundred Thousand and No/100 Dollars ($41,700,000.00).
“MSC Investment Conditions” means that Borrower maintains Qualified Cash in an amount equal to or greater than the lesser of (i) 110% of the aggregate outstanding Secured Obligations (inclusive of any Prepayment Charge and End of Term Charge that would be due and owing if the outstanding Loans were prepaid at the time of measurement) plus the Qualified Cash A/P Amount or (ii) 100% of the consolidated Cash of Borrower and its Subsidiaries, unless compliance with the foregoing conditions are waived in writing from time to time by Agent with respect to specified periods, in Agent’s sole discretion.
“MSC Subsidiary” means Kaleido Biosciences Securities Corporation, a wholly-owned Subsidiary incorporated in the Commonwealth of Massachusetts or the State of Delaware for the purpose of holding Investments as a Massachusetts security corporation under 830 CMR 63.38B.1 of the Massachusetts tax code and applicable regulations (as the same may be amended, modified or replaced from time to time).
“Non-Core Intellectual Property” means microbiome metabolic therapy candidates that do not target, directly, indirectly, entirely or partially, any of the following indications: urea cycle disorders, hepatic encephalopathy, multi drug resistant infection, COVID-19, chronic kidney disease, atherosclerotic cardiovascular disease, cardio-metabolic syndrome, immuno-oncology, Inflammatory Bowel Disease or any indication related to the KB195, KB174, KB109, or KB295 programs, and in each case any related programs or related Intellectual Property in connection with such indications.
“Non-Consenting Lender” means any Lender that does not approve any consent, waiver or amendment that (a) requires the approval of all or all affected Lenders in accordance with the terms of Section 11.3 and (b) has been approved by the Required Lenders.
“Non-Disclosure Agreement” means that certain Non-Disclosure Agreement by and between Kaleido Biosciences, Inc. and Hercules Capital, Inc. dated as of October 2, 2019.
“OFAC” is the U.S. Department of Treasury Office of Foreign Assets Control.
“OFAC Lists” are, collectively, the Specially Designated Nationals and Blocked Persons List maintained by OFAC pursuant to Executive Order No. 13224, 66 Fed. Reg. 49079 (Sept. 25, 2001) and/or any other list of terrorists or other restricted Persons maintained pursuant to any of the rules and regulations of OFAC or pursuant to any other applicable Executive Orders.
“Patent License” means any written agreement granting any right with respect to any invention on which a Patent is in existence or a Patent application is pending, in which agreement Borrower now holds or hereafter acquires any interest.
“Patents” means all letters patent of, or rights corresponding thereto, in the United States of America or in any other country, all registrations and recordings thereof, and all applications for letters patent of, or rights corresponding thereto, in the United States of America or any other country.
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“Performance Milestone I” means satisfaction of each of the following events:
“Performance Milestone II” means satisfaction of each of the following events:
“Performance Milestone III” means satisfaction of each of the following events:
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“Permitted In-Licenses” means (a) any License with respect to which Borrower is the licensee, in which: (i) Borrower and its Subsidiaries are not reasonably likely to be required to transfer cash or other consideration, prior to the Term Loan Maturity Date, assets or property valued (book or market) at more than $1,000,000 in the aggregate for all such Licenses and (ii) is not a Restricted License.
“Permitted Indebtedness” means:
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“Permitted Investment” means:
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$1,000,000 in the aggregate in any fiscal year and $2,000,000 in the aggregate during the term of this Agreement;
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“Permitted Out-Licenses” mean the following licenses entered into in the ordinary course
of business:
(x) but only as to discreet geographical areas outside of the United States of America, or
(y) solely for Non-Core Intellectual Property. “Permitted Transfers” means:
Agreement,
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“Person” means any individual, sole proprietorship, partnership, joint venture, trust, unincorporated organization, association, corporation, limited liability company, institution, other entity or government.
“Pledge Agreement” means the Pledge Agreement dated as of the Closing Date between Borrower and Agent, as the same may from time to time be amended, restated, modified or otherwise supplemented.
“Qualified Cash” means the amount of Borrower’s Cash held in accounts in the United States subject to an Account Control Agreement in favor of Agent.
“Qualified Cash A/P Amount” means the amount of Borrower’s and its Subsidiaries’ accounts payable that have not been paid within ninety (90) days from the invoice date of the relevant account payable.
“Qualified Subsidiary” means any direct or indirect Subsidiary other than an Excluded
Subsidiary.
“Receivables” means (i) all of Borrower’s Accounts, Instruments, Documents, Chattel Paper, Supporting Obligations, letters of credit, proceeds of any letter of credit, and Letter of Credit Rights, and (ii) all customer lists, software, and business records related thereto.
“Required Lenders” means at any time, the holders of more than 50% of the sum of the aggregate unpaid principal amount of the Term Loans then outstanding.
“Restricted License” means any material License or other agreement with respect to which Borrower is the licensee (a) that prohibits or otherwise restricts Borrower from granting a security interest in Borrower’s interest in such License or agreement or any other property, or (b) for which a default under or termination of could interfere with the Agent’s right to sell any Collateral.
“Sanctioned Country” means, at any time, a country or territory which is the subject or target of any Sanctions.
“Sanctioned Person” means, at any time, (a) any Person listed in any Sanctions-related list of designated Persons maintained by the Office of Foreign Assets Control of the U.S. Department of the Treasury or the U.S. Department of State, or by the United Nations Security Council, the European Union or any EU member state, (b) any Person operating, organized or resident in a Sanctioned Country or (c) any Person controlled by any such Person.
“Sanctions” means economic or financial sanctions or trade embargoes imposed, administered or enforced from time to time by (a) the U.S. government, including those administered by the Office of Foreign Assets Control of the U.S. Department of the Treasury or the U.S. Department of State, or (b) the United Nations Security Council, the European Union or Her Majesty’s Treasury of the United Kingdom.
“Second Amendment Effective Date” means June 15, 2020.
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“Second Interest Only Extension Conditions” shall mean satisfaction of each of the following events: (a) no default or Event of Default shall have occurred, and (b) Borrower achieves Performance Milestone II, subject to verification by Agent (including supporting documentation requested by Agent).
“Secured Obligations” means Borrower’s obligations under this Agreement and any Loan Document, including any obligation to pay any amount now owing or later arising.
“Subordinated Indebtedness” means Indebtedness subordinated to the Secured Obligations in amounts and on terms and conditions satisfactory to Agent in its sole discretion and subject to a subordination agreement in form and substance satisfactory to Agent in its sole discretion.
“Subsequent Financing” means the closing of any Borrower financing which becomes effective after the Closing Date.
“Subsequent Financing Securities” means, with respect to any Subsequent Financing, the class and series of common stock, convertible preferred stock or other equity security of Borrower (or instruments exercisable for or convertible into shares of common stock, convertible preferred stock or other equity securities) sold and issued by Borrower to the investor purchasers in such Subsequent Financing.
“Subsidiary” means an entity, whether a corporation, partnership, limited liability company, joint venture or otherwise, in which Borrower owns or controls 50% or more of the outstanding voting securities, including each entity listed on Schedule 1 hereto.
“Taxes” means all present or future taxes, levies, imposts, duties, deductions, withholdings (including backup withholding), assessments, fees or other charges imposed by any governmental authority, including any interest, additions to tax or penalties applicable thereto.
“Term Commitment” means as to any Lender, the obligation of such Lender, if any, to make a Term Loan Advance to the Borrower in a principal amount not to exceed the amount set forth under the heading “Term Commitment” opposite such Lender’s name on Schedule 1.1.
“Term Loan Advance” means each Tranche 1 Advance, Tranche 2 Advance, Tranche 3 Advance, Tranche 4 Advance and any other Term Loan funds advanced under this Agreement.
“Term Loan Interest Rate” means, for any day a per annum rate of interest equal to the greater of either (i) 9.35% plus the prime rate as reported in The Wall Street Journal minus 3.25%, and (ii) 9.35%.
“Term Loan Maturity Date” means January 1, 2024; provided that if such day is not a Business Day, the Term Loan Maturity Date shall be the immediately preceding Business Day.
“Third Amendment Effective Date” means April 30, 2021.
“Trademark License” means any written agreement granting any right to use any Trademark or Trademark registration, now owned or hereafter acquired by Borrower or in which Borrower now holds or hereafter acquires any interest.
“Trademarks” means all trademarks (registered, common law or otherwise) and any
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applications in connection therewith, including registrations, recordings and applications in the United
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States Patent and Trademark Office or in any similar office or agency of the United States of America, any State thereof or any other country or any political subdivision thereof.
“Tranche 3 Facility Charge” means half of one percent (0.50%) of the Tranche 3 Advance, which is payable to Lender in accordance with Section 4.2(d).
“UCC” means the Uniform Commercial Code as the same is, from time to time, in effect in the State of California; provided, that in the event that, by reason of mandatory provisions of law, any or all of the attachment, perfection or priority of, or remedies with respect to, Agent’s Lien on any Collateral is governed by the Uniform Commercial Code as the same is, from time to time, in effect in a jurisdiction other than the State of California, then the term “UCC” shall mean the Uniform Commercial Code as in effect, from time to time, in such other jurisdiction solely for purposes of the provisions thereof relating to such attachment, perfection, priority or remedies and for purposes of definitions related to such provisions.
“U.S. Person” means any Person that is a “United States person” as defined in Section 7701(a)(30) of the Code.
terms:
Defined Term |
Section |
Agent |
Preamble |
Assignee |
11.14 |
Borrower |
Preamble |
Claims |
11.11 |
Collateral |
3.1 |
Confidential Information |
11.13 |
End of Term Charge |
2.6 |
Event of Default |
9 |
Financial Statements |
7.1 |
Hercules Purchaser |
8.1 |
Indemnified Person |
6.3 |
Lenders |
Preamble |
Liabilities |
6.3 |
Maximum Rate |
2.3 |
Open Source License |
5.10 |
Participant Register |
11.8 |
Prepayment Charge |
2.5 |
Publicity Materials |
11.19 |
Register |
11.7 |
Rights to Payment |
3.1 |
Tranche 1 Advance |
2.2(a) |
Tranche 2 Advance |
2.2(a) |
Tranche 3 Advance |
2.2(a) |
Tranche 4 Advance |
2.2(a) |
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SECTION 2. THE LOAN
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360 days, with interest computed daily based on the actual number of days elapsed. The Term Loan Interest Rate will float and change on the day the prime rate changes from time to time.
(3) Business Days after the date on which the Lenders or Agent notifies Borrower of such; provided, further, that, with respect to clause (ii) above, in the event that the Lenders or Agent informs Borrower that the Lenders will not initiate a debit entry to Borrower’s account for certain amount of such out-of-pocket legal fees and costs incurred by Agent or the Lenders, Borrower shall pay to the Lenders such amount in full in immediately available funds within three (3) Business Days.
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outstanding Secured Obligations, including principal, interest, compounded interest, and professional fees, shall bear interest at a rate per annum equal to the rate set forth in Section 2.2(c), plus five percent (5%) per annum. In the event any interest is not paid when due hereunder, delinquent interest shall be added to principal and shall bear interest on interest, compounded at the rate set forth in Section 2.2(c) or Section 2.4, as applicable.
(ii) the date that Borrower prepays the outstanding Secured Obligations (other than any inchoate indemnity obligations and any other obligations which, by their terms, are to survive the termination of this Agreement) in full, or (iii) the date that the Secured Obligations become due and payable, Borrower shall pay the Lenders a charge of $1,698,750 (the “End of Term Charge”). Notwithstanding the required payment date of such End of Term Charge, the applicable pro rata portion of the End of Term Charge shall be deemed earned by the Lenders as of each date a Term Loan Advance is made. For the avoidance of doubt, if a payment hereunder becomes due and payable on a day that is not a Business Day, the due date thereof shall be the immediately following Business Day.
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Closing Date. The Prepayment Charge and the End of Term Charge shall also be payable in the event the Secured Obligations (and/or this Agreement) are satisfied or released by foreclosure (whether by power of judicial proceeding), deed in lieu of foreclosure, or by any other means. Borrower expressly waives (to the fullest extent it may lawfully do so) the provisions of any present or future statute or law that prohibits or may prohibit the collection of the foregoing Prepayment Charge and End of Term Charge in connection with any such acceleration. Borrower agrees (to the fullest extent that each may lawfully do so): (a) each of the Prepayment Charge and the End of Term Charge is reasonable and is the product of an arm’s length transaction between sophisticated business people, ably represented by counsel; (b) each of the Prepayment Charge and the End of Term Charge shall be payable notwithstanding the then prevailing market rates at the time payment is made; (c) there has been a course of conduct between the Lenders and Borrower giving specific consideration in this transaction for such agreement to pay the Prepayment Charge and the End of Term Charge as a charge (and not interest) in the event of prepayment or acceleration; (d) Borrower shall be estopped from claiming differently than as agreed to in this Section 2.9. Borrower expressly acknowledges that their agreement to pay each of the Prepayment Charge and the End of Term Charge to the Lenders as herein described was on the Closing Date and continues to be a material inducement to the Lenders to provide the Term Loans.
SECTION 3. SECURITY INTEREST
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change in the U.S. tax laws that would allow the pledge of a greater percentage of such Equity Interests without material adverse tax consequences to the Borrower, the Collateral shall automatically and without further action required by, and without notice to, any Person include such greater percentage of Equity Interests of such Subsidiary from that time forward) and (e) the assets of any (i) Excluded Subsidiary or (ii) MSC Subsidiary, in each case, including the Equity Interests of any Subsidiary thereof.
SECTION 4. CONDITIONS PRECEDENT TO LOAN
The obligations of the Lenders to make the Loan hereunder are subject to the satisfaction by Borrower of the following conditions:
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SECTION 5. REPRESENTATIONS AND WARRANTIES OF BORROWER
Borrower represents and warrants that:
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respect any material contract or agreement or require the consent or approval of any other Person which has not already been obtained. The individual or individuals executing the Loan Documents are duly authorized to do so.
Neither Borrower nor any of its Subsidiaries is an “investment company” or a company “controlled” by an “investment company” under the Investment Company Act of 1940, as amended. Neither Borrower nor any of its Subsidiaries is engaged as one of its important activities in extending credit for margin stock (under Regulations X, T and U of the Federal Reserve Board of Governors). Borrower and each of its Subsidiaries has complied in all material respects with the Federal Fair Labor Standards Act. Neither Borrower nor any of its Subsidiaries is a “holding company” or an “affiliate” of a “holding company” or a “subsidiary company” of a “holding company” as each term is defined and used in the Public Utility Holding Company Act of 2005.
Neither Borrower’s nor any of its Subsidiaries’ properties or assets has been used by Borrower or such Subsidiary or, to Borrower’s knowledge, by previous Persons, in disposing, producing, storing, treating, or transporting any hazardous substance other than in material compliance with applicable laws. Borrower and each of its Subsidiaries has obtained all consents, approvals and authorizations of, made all declarations or filings with, and given all notices to, all governmental authorities that are necessary to continue their respective businesses as currently conducted.
None of Borrower, any of its Subsidiaries, or any of Borrower’s or its Subsidiaries’ Affiliates or any of their respective agents acting or benefiting in any capacity in connection with the transactions contemplated by this Agreement is (i) in violation of any Anti-Terrorism Law, (ii) engaging in or conspiring to engage in any transaction that evades or avoids, or has the purpose of evading or avoiding or attempts to violate, any of the prohibitions set forth in any Anti-Terrorism Law, or (iii) is a Blocked Person. None of Borrower, any of its Subsidiaries, or to the knowledge of Borrower and any of its Affiliates or agents, acting or benefiting in any capacity in connection with the transactions contemplated by this Agreement, (x) conducts any business or engages in making or receiving any contribution of funds, goods or services to or for the benefit of any Blocked Person, or (y) deals in, or otherwise engages in any transaction relating to, any property or interest in property blocked pursuant to Executive Order No. 13224, any similar executive order or other Anti-Terrorism Law. None of the funds to be provided under this Agreement will be used, directly or indirectly, (a) for any activities in violation of any applicable anti-money laundering, economic sanctions and anti-bribery laws and regulations laws and regulations or (b) for any payment to any
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governmental official or employee, political party, official of a political party, candidate for political office, or anyone else acting in an official capacity, in order to obtain, retain or direct business or obtain any improper advantage, in violation of the United States Foreign Corrupt Practices Act of 1977, as amended.
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No material software or other materials used by Borrower or any of its Subsidiaries (or used in any Borrower Products or any Subsidiaries’ products) are subject to an open-source or similar license (including but not limited to the General Public License, Lesser General Public License, Mozilla Public License, or Affero License) (collectively, “Open Source Licenses”) in a manner that would cause such software or other materials to have to be (i) distributed to third parties at no charge or a minimal charge (royalty-free basis); (ii) licensed to third parties to modify, make derivative works based on, decompile, disassemble, or reverse engineer; or (iii) used in a manner that does could require disclosure or distribution in source code form.
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Investment Property, and such exhibit correctly identifies the name, address and telephone number of each bank or other institution, the name in which the account is held, a description of the purpose of the account, and the complete account number therefor.
SECTION 6. INSURANCE; INDEMNIFICATION
risks of physical loss or damage howsoever caused, in an amount not less than the full replacement cost of the Collateral, provided that such insurance may be subject to standard exceptions and deductibles. If Borrower fails to obtain the insurance called for by this Section 6.1 or fails to pay any premium thereon or fails to pay any other amount which Borrower is obligated to pay under this Agreement or any other Loan Document or which may be required to preserve the Collateral, Agent may obtain such insurance or make such payment, and all amounts so paid by Agent are immediately due and payable, bearing interest at the then highest rate applicable to the Secured Obligations, and secured by the Collateral. Agent will make reasonable efforts to provide Borrower with notice of Agent obtaining such insurance at the time it is obtained or within a reasonable time thereafter. No payments by Agent are deemed an agreement to make similar payments in the future or Agent’s waiver of any Event of Default.
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future insurance that Borrower may acquire from such insurer. Notwithstanding the foregoing, (i) so long as no Event of Default has occurred and is continuing, Borrower shall have the option of applying the proceeds of any casualty policy up to $250,000 in the aggregate for all losses under all casualty policies in any one (1) year, toward the replacement or repair of destroyed or damaged property; provided that any such replaced or repaired property (A) shall be of equal or like value as the replaced or repaired Collateral and (B) shall be deemed Collateral in which Agent has been granted a first priority security interest (subject only to Permitted Liens that are permitted pursuant to the terms of this Agreement to have superior priority to Agent’s Lien), and (ii) after the occurrence and during the continuance of an Event of Default, all proceeds payable under such casualty policy shall, at the option of Agent, be payable to Agent on account of the Secured Obligations. Borrower shall deliver additional insured endorsements for liability and lender’s loss payable endorsements for all risk property damage insurance pursuant to Section 7.16(b). All certificates of insurance will provide for a minimum of thirty (30) days advance written notice to Agent of cancellation (other than cancellation for non-payment of premiums, for which ten (10) days’ advance written notice shall be sufficient). Any failure of Agent to scrutinize such insurance certificates for compliance is not a waiver of any of Agent’s rights, all of which are reserved.
Upon request by Agent, Borrower shall provide Agent with copies of each insurance policy, and upon entering or amending any insurance policy required hereunder, Borrower shall provide Agent with copies of such policies and shall promptly deliver to Agent updated insurance certificates with respect to such policies.
SECTION 7. COVENANTS OF BORROWER
Borrower agrees as follows:
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(prepared on a consolidated and consolidating basis, if applicable), including balance sheet and related statements of income and cash flows accompanied by a report detailing any material contingencies (including the commencement of any material litigation by or against Borrower) or any other occurrence that could reasonably be expected to have a Material Adverse Effect, all certified by Borrower’s Chief Executive Officer or Chief Financial Officer to the effect that they have been prepared in accordance with GAAP, except (i) for the absence of footnotes, (ii) that they are subject to normal year end adjustments, and (iii) they do not contain certain non-cash items that are customarily included in quarterly and annual financial statements;
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fiscal year, as well as budgets, operating plans and other financial information reasonably requested by Agent; and
(b) pleads nolo contendere to, (c) is indicted on, or (d) is arraigned and held over on charges involving money laundering or predicate crimes to money laundering.
Borrower shall not make any change in its (a) accounting policies or reporting practices, except as required by GAAP or (b) fiscal years or fiscal quarters. The fiscal year of Borrower shall end on December 31.
The executed Compliance Certificate and all Financial Statements required to be delivered pursuant to clauses (a), (b), (c) and (d) shall be sent via e-mail to Agent at xxxxxxxxxxxxxxxxxxx@xxxx.xxx with a copy to xxxxx@xxxx.xxx and xxxxxxxx@xxxx.xxx; provided, that if e-mail is not available or sending such Financial Statements via e-mail is not possible, they shall be faxed to Agent at: (000) 000-0000, attention Account Manager: Kaleido Biosciences, Inc.
Notwithstanding the foregoing, documents required to be delivered under Sections 7.1(a), (b), (c) or
(f) (to the extent any such documents are included in materials otherwise filed with the SEC) may be delivered electronically and if so delivered, shall be deemed to have been delivered on the date on which Borrower posts such documents, or provides a link thereto, on Borrower’s website on the Internet at Borrower’s website address; provided that Borrower shall directly provide Agent all Financial Statements required to be delivered pursuant to Section 7.1(b) and (c) hereunder.
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to execute and deliver on behalf of Borrower and to file such financing statements (including an indication that the financing statement covers “all assets or all personal property” of Borrower in accordance with Section 9-504 of the UCC), collateral assignments, notices, control agreements, security agreements and other documents without the signature of Borrower either in Agent’s name or in the name of Agent as agent and attorney-in-fact for Borrower. Borrower shall protect and defend Borrower’s title to the Collateral and Agent’s Lien thereon against all Persons claiming any interest adverse to Borrower or Agent other than Permitted Liens.
$250,000, or any Liens thereon, provided however, that the Collateral and such other property and assets may be subject to Permitted Liens except that there shall be no Liens whatsoever on Intellectual Property. Borrower shall not agree with any Person other than Agent or the Lenders not to encumber its property (other than holders of Permitted Liens). Borrower shall not enter into or suffer to exist or become effective any agreement that prohibits or limits the ability of any Borrower to create, incur, assume or suffer to exist any Lien upon any of its property (including Intellectual Property), whether now owned or hereafter acquired, to secure its obligations under the Loan Documents to which it is a party other than (a) this Agreement and the other Loan Documents, (b) any agreements governing any purchase money Liens or capital lease obligations otherwise permitted hereby (in which case, any prohibition or limitation shall only be effective against the assets financed thereby) and (c) customary restrictions on the assignment of leases, licenses and other agreements. Borrower shall cause its Subsidiaries to protect and defend such Subsidiary’s title to its assets from and against all Persons claiming any interest adverse to such Subsidiary, and Borrower shall cause its Subsidiaries at all times to keep such Subsidiary’s property and assets free and clear from any known legal process or Liens whatsoever (except for Permitted Liens, provided however, that there shall be no Liens whatsoever on Intellectual Property), and shall give Agent prompt written notice of any legal process affecting such Subsidiary’s assets with a value in excess of $250,000.
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(x) sales of Inventory in the ordinary course of business, (y) relocations of mobile Equipment in the possession of its employees or agents, and (z) relocations of Collateral from a location described on Exhibit B to another location described on Exhibit B) unless (i) it has provided prompt written notice to Agent, (ii) such relocation is within the continental United States of America and, (iii) if such relocation is to a third party bailee, it has delivered a bailee agreement in form and substance reasonably acceptable to Agent.
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Borrower shall maintain, and shall cause its Subsidiaries to maintain, compliance
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in all material respects with all applicable laws, rules or regulations (including any law, rule or
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regulation with respect to the making or brokering of loans or financial accommodations), and shall, or cause its Subsidiaries to, obtain and maintain all required governmental authorizations, approvals, licenses, franchises, permits or registrations reasonably necessary in connection with the conduct of Borrower’s business.
Neither Borrower nor any of its Subsidiaries shall, nor shall Borrower or any of its Subsidiaries permit any Affiliate to, directly or indirectly, knowingly enter into any documents, instruments, agreements or contracts with any Person listed on the OFAC Lists. Neither Borrower nor any of its Subsidiaries shall, nor shall Borrower or any of its Subsidiaries, permit any Affiliate to, directly or indirectly, (i) conduct any business or engage in any transaction or dealing with any Blocked Person, including, without limitation, the making or receiving of any contribution of funds, goods or services to or for the benefit of any Blocked Person, (ii) deal in, or otherwise engage in any transaction relating to, any property or interests in property blocked pursuant to Executive Order No. 13224 or any similar executive order or other Anti-Terrorism Law, or
(iii) engage in or conspire to engage in any transaction that evades or avoids, or has the purpose of evading or avoiding, or attempts to violate, any of the prohibitions set forth in Executive Order No. 13224 or other Anti-Terrorism Law.
Borrower has implemented and maintains in effect policies and procedures designed to ensure compliance by the Borrower, its Subsidiaries and their respective directors, officers, employees and agents with Anti-Corruption Laws and applicable Sanctions, and Borrower, its Subsidiaries and their respective officers and employees and to the knowledge of Borrower its directors and agents, are in compliance with Anti-Corruption Laws and applicable Sanctions in all material respects.
None of Borrower, any of its Subsidiaries or any of their respective directors, officers or employees, or to the knowledge of Borrower, any agent for Borrower or its Subsidiaries that will act in any capacity in connection with or benefit from the credit facility established hereby, is a Sanctioned Person. No Loan, use of proceeds or other transaction contemplated by this Agreement will violate Anti-Corruption Laws or applicable Sanctions.
SECTION 8. RIGHT TO INVEST
8.1 The Lenders or their assignee or nominee (each, a “Hercules Purchaser”, and collectively, the “Hercules Purchasers”) shall have the right, in its discretion, to participate in any Subsequent Financing in an amount of up to $2,000,000 on the same terms, conditions and pricing afforded to other investors participating in such Subsequent Financing under applicable laws and regulations; provided that with respect to any public offering of Borrower, Borrower agrees to use commercially reasonable efforts to provide the Hercules Purchasers with the opportunity to invest in each such Subsequent Financing if it is lawful to do so under applicable laws and regulations (or if the Subsequent Financing is an underwritten public offering pursuant to a registration statement under the Securities Act of 1933, as amended (a “Registered Offering”), to use
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commercially reasonable efforts to cause the underwriters for such offering to offer the Hercules Purchasers an
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allocation of securities in such offering if it is lawful to do so under applicable laws and regulations), on the same terms, conditions and pricing afforded to other investors participating in such Subsequent Financing. Each Hercules Purchaser purchasing Subsequent Financing Securities shall be an “accredited investor” as defined in Regulation D promulgated under the Securities Act of 1933, as amended (the “Act”).
SECTION 9. EVENTS OF DEFAULT
The occurrence of any one or more of the following events shall be an Event of Default:
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permitted under Section 7.10 of this Agreement; or (v) shall seek or consent to or acquiesce in the appointment of any trustee, receiver, or liquidator of Borrower or of all or any substantial part (i.e., 33-1/3% or more) of the assets or property of Borrower; or (vi) shall cease operations of its business as its business has normally been conducted, or terminate substantially all of its employees; or (vii) Borrower or its directors or majority shareholders shall take any action initiating any of the foregoing actions described in clauses (i) through (vi); or (B) either (i) forty- five (45) days shall have expired after the commencement of an involuntary action against Borrower seeking reorganization, arrangement, composition, readjustment, liquidation, dissolution or similar relief under any present or future statute, law or regulation, without such action being dismissed or all orders or proceedings thereunder affecting the operations or the business of Borrower being stayed; or (ii) a stay of any such order or proceedings shall thereafter be set aside and the action setting it aside shall not be timely appealed; or (iii) Borrower shall file any answer admitting or not contesting the material allegations of a petition filed against Borrower in any such proceedings; or (iv) the court in which such proceedings are pending shall enter a decree or order granting the relief sought in any such proceedings; or (v) forty-five (45) days shall have expired after the appointment, without the consent or acquiescence of Borrower, of any trustee, receiver or liquidator of Borrower or of all or any substantial part of the properties of Borrower without such appointment being vacated; or
SECTION 10. REMEDIES
(i) Agent may, and at the direction of the Required Lenders shall, accelerate and demand payment of all or any part of the outstanding Secured Obligations together with the applicable Prepayment Charge and declare them to be immediately due and payable (provided, that upon the occurrence and during the continuance of an Event of Default of the type described in Section 9.5, all of the outstanding Secured Obligations (including, without limitation, the Prepayment Charge and the End of Term Charge) shall automatically be accelerated and made due and payable, in each case without any further notice or act). Borrower hereby irrevocably appoints Agent as its lawful attorney-in-fact exercisable following the occurrence and during the continuance of an Event of Default, (a) sign Borrower’s name on any invoice or xxxx of lading for any account or drafts
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against
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account debtors; (b) demand, collect, xxx, and give releases to any account debtor for monies due, settle and adjust disputes and claims about the accounts directly with account debtors, and compromise, prosecute, or defend any action, claim, case, or proceeding about any Collateral (including filing a claim or voting a claim in any bankruptcy case in Agent’s or Borrower’s name, as Agent may elect); (c) make, settle, and adjust all claims under Borrower’s insurance policies;
(d) pay, contest or settle any Lien, charge, encumbrance, security interest, or other claim in or to the Collateral, or any judgment based thereon, or otherwise take any action to terminate or discharge the same; (e) transfer the Collateral into the name of Agent or a third party as the UCC permits; (f) receive, open and dispose of mail addressed to Borrower; (g) endorse Borrower’s name on any checks, payment instruments, or other forms of payment or security; and (h) notify all account debtors to pay Agent directly. Borrower hereby appoints Agent as its lawful attorney- in-fact to sign Borrower’s name on any documents necessary to perfect or continue the perfection of Agent’s security interest in the Collateral regardless of whether an Event of Default has occurred until all outstanding Secured Obligations have been satisfied in full and the Loan Documents have been terminated. Agent’s foregoing appointment as Borrower’s attorney in fact, and all of Agent’s rights and powers, coupled with an interest, are irrevocable until all Secured Obligations have been fully repaid and performed and the Loan Documents have been terminated. Agent may, and at the direction of the Required Lenders shall, exercise all rights and remedies with respect to the Collateral under the Loan Documents or otherwise available to it under the UCC and other applicable law, including the right to release, hold, sell, lease, liquidate, collect, realize upon, or otherwise dispose of all or any part of the Collateral and the right to occupy, utilize, process and commingle the Collateral. All Agent’s rights and remedies shall be cumulative and not exclusive.
First, to Agent and the Lenders in an amount sufficient to pay in full Agent’s and the Lenders’ reasonable and documented out-of-pocket costs and professionals’ and advisors’ fees and expenses as described in Section 11.12;
Second, to the Lenders in an amount equal to the then unpaid amount of the Secured Obligations (including principal, interest, and the default rate interest pursuant to Section 2.4), in such order and priority as Agent may choose in its sole discretion; and
Finally, after the full and final payment in Cash of all of the Secured Obligations (other than inchoate obligations), to any creditor holding a junior Lien on the Collateral, or to Borrower or its representatives or as a court of competent jurisdiction may direct.
Agent shall be deemed to have acted reasonably in the custody, preservation and disposition of any of the Collateral if it complies with the obligations of a secured party under the UCC.
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SECTION 11. MISCELLANEOUS
HERCULES CAPITAL, INC.
Legal Department
Attention: Chief Legal Officer and Xxxxxx Xxxxxxx 000 Xxxxxxxx Xxxxxx, Xxxxx 000
Xxxx Xxxx, XX 00000
email: xxxxx@xxxx.xxx and xxxxxxxx@xxxx.xxx Telephone: 000-000-0000
HERCULES CAPITAL, INC.
Legal Department
Attention: Chief Legal Officer and Xxxxxx Xxxxxxx 000 Xxxxxxxx Xxxxxx, Xxxxx 000
Xxxx Xxxx, XX 00000
email: xxxxx@xxxx.xxx and xxxxxxxx@xxxx.xxx Telephone: 000-000-0000
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Attention: Xxx Xxxxxxxxxx, CEO 00 Xxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
email: xxx.xxxxxxxxxx@xxxxxxx.xxx Telephone: 000-000-0000
with a copy (which shall not constitute notice) to:
XXXXXXX PROCTER LLP
000 Xxxxxxxx Xxxxxx
Xxxxxx, XX 00000 Attention: Xxxx X. Xxxxx Telephone: 000-000-0000
email: xxxxxxxxx@xxxxxxxxxxxxxx.xxx
or to such other address as each party may designate for itself by like notice.
(D) amend, modify or waive any provision of Section 11.18 or Addendum 3 without the written consent of the Agent. Any such waiver and any such amendment, supplement or modification shall apply equally to each Lender and shall be binding upon Borrower, the Lender, the Agent
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and all future holders of the Loans.
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received such other information regarding such assignee as Agent reasonably shall require. The Agent, acting solely for this purpose as an agent of the Borrower, shall maintain at one of its offices in the United States a register for the recordation of the names and addresses of the Lender(s), and the Term Commitments of, and principal amounts (and stated interest) of the Loans owing to, each Lender pursuant to the terms hereof from time to time (the “Register”). The entries in the Register shall be conclusive absent manifest error, and the Borrower, the Agent and the Lender(s) shall treat each Person whose name is recorded in the Register pursuant to the terms hereof as a Lender hereunder for all purposes of this Agreement. The Register shall be available for inspection by the Borrower and any Lender, at any reasonable time and from time to time upon reasonable prior notice.
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venue in the aforesaid courts; and (d) irrevocably agrees to be bound by any judgment rendered thereby in connection with this Agreement or the other Loan Documents. Service of process on any party hereto in any action arising out of or relating to this Agreement shall be effective if given in accordance with the requirements for notice set forth in Section 11.2, and shall be deemed effective and received as set forth in Section 11.2. Nothing herein shall affect the right to serve process in any other manner permitted by law or shall limit the right of either party to bring proceedings in the courts of any other jurisdiction.
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the Lenders in any adversary proceeding or contested matter commenced or continued by or on behalf of Borrower’s estate, and any appeal or review thereof.
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hereunder. the Lenders agrees that in the event of any transfer by it of the promissory note(s) (if any), it will endorse thereon a notation as to the portion of the principal of the promissory note(s), which shall have been paid at the time of such transfer and as to the date to which interest shall have been last paid thereon.
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agreement with any national securities exchange (so long as such party provides prior notice to the other party hereto to the extent reasonably practicable) and (ii) to comply with Section 11.13.
(SIGNATURES TO FOLLOW)
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IN WITNESS WHEREOF, Borrower, Agent and the Lenders have duly executed and delivered this Loan and Security Agreement as of the day and year first above written.
BORROWER:
Signature: Print Name: Title:
XXXXXX BIO, INC.
Signature: Print Name: Title:
(SIGNATURES CONTINUE ON THE FOLLOWING PAGE)
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Accepted in Palo Alto, California:
AGENT:
HERCULES CAPITAL, INC.
Signature:
Print Name: Xxxxxxxx Xxxx
Title: Assistant General Counsel
LENDERS:
HERCULES CAPITAL, INC.
Signature:
Print Name: Xxxxxxxx Xxxx
Title: Assistant General Counsel
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Table of Addenda, Exhibits and Schedules
Addendum 1: Taxes; Increased Costs Addendum 2: [Reserved]
Addendum 3: Agent and Lender Terms Addendum 4: Multiple Borrower Terms
Exhibit A: Advance Request
Attachment to Advance Request
Exhibit B: Name, Locations, and Other Information for Borrower Exhibit C: Borrower’s Patents, Trademarks, Copyrights and Licenses Exhibit D: Borrower’s Deposit Accounts and Investment Accounts Exhibit E: Compliance Certificate
Exhibit F: Joinder Agreement
Exhibit G: ACH Debit Authorization Agreement
Exhibit H-1: Form of U.S. Tax Compliance Certificate (For Foreign Lenders That Are Not Partnerships For U.S. Federal Income Tax Purposes)
Exhibit H-2: Form of U.S. Tax Compliance Certificate (For Foreign Participants That Are Not Partnerships For U.S. Federal Income Tax Purposes)
Exhibit H-3: Form of U.S. Tax Compliance Certificate (For Foreign Participants That Are Partnerships For U.S. Federal Income Tax Purposes)
Exhibit H-4: Form of U.S. Tax Compliance Certificate (For Foreign Lenders That Are Partnerships For
U.S. Federal Income Tax Purposes)
Schedule 1.1 Commitments
Schedule 1 Subsidiaries
Schedule 1A Existing Permitted Indebtedness Schedule 1B Existing Permitted Investments Schedule 1C Existing Permitted Liens Schedule 5.3 Consents, Etc.
Schedule 5.8 Tax Matters
Schedule 5.9 Intellectual Property Claims Schedule 5.10 Intellectual Property Schedule 5.11 Borrower Products Schedule 5.14 Capitalization
Schedule 7.12 Deposit Accounts
US-DOCS\130693051.4
62
ADDENDUM 1 to LOAN AND SECURITY AGREEMENT TAXES; INCREASED COSTS
(B) that are Other Connection Taxes, (ii) in the case of a Lender, U.S. federal withholding Taxes imposed on amounts payable to or for the account of such Lender with respect to an applicable interest in a Loan or Term Commitment pursuant to a law in effect on the date on which (A) such Lender acquires such interest in the Loan or Term Commitment (other than pursuant to an assignment request by the Borrower under Section 10 of this Addendum 1) or
(B) such Lender changes its lending office, except in each case to the extent that, pursuant to Section 2 or Section 4 of this Addendum 1, amounts with respect to such Taxes were payable either to such Lender’s assignor immediately before such Lender became a party hereto or to such Lender immediately before it changed its lending office, (iii) Taxes attributable to such Recipient’s failure to comply with Section 7 of this Addendum 1 and (iv) any withholding Taxes imposed under FATCA.
US-DOCS\130693051.4
63
US-DOCS\130693051.4
64
execution, delivery, performance, enforcement or registration of, from the receipt or perfection of a security interest under, or otherwise with respect to, any Loan Document, except any such Taxes that are Other Connection Taxes imposed with respect to an assignment (other than an assignment made pursuant to Section 10(b) of this Addendum 1).
US-DOCS\130693051.4
65
US-DOCS\130693051.4
66
hereby authorizes the Agent to set off and apply any and all amounts at any time owing to such Lender under any Loan Document or otherwise payable by the Agent to the Lender from any other source against any amount due to the Agent under this Section 5.
US-DOCS\130693051.4
67
US-DOCS\130693051.4
68
US-DOCS\130693051.4
69
US-DOCS\130693051.4
70
A Lender shall not be required to make any such assignment or delegation if, prior thereto, as a result of a waiver by such Lender or otherwise, the circumstances entitling the Borrower to require such assignment and delegation cease to apply.
US-DOCS\130693051.4
ACTIVE/116115708.1
US-DOCS\130693242.5
52
US-DOCS\130693051.4
ACTIVE/116115708.1
US-DOCS\130693242.5
ADDENDUM 2 to LOAN AND SECURITY AGREEMENT
[Reserved]
US-DOCS\130693051.4
ACTIVE/116115708.1
US-DOCS\130693242.5
ADDENDUM 3 to LOAN AND SECURITY AGREEMENT
Agent and Lender Terms
US-DOCS\130693051.4
ACTIVE/116115708.1
US-DOCS\130693242.5
US-DOCS\130693051.4
ACTIVE/116115708.1
2
US-DOCS\130693242.5
ADDENDUM 4 to LOAN AND SECURITY AGREEMENT
Multiple Borrower Terms
US-DOCS\130693051.4
ACTIVE/116115708.1
3
US-DOCS\130693242.5
US-DOCS\130693051.4
ACTIVE/116115708.1
4
US-DOCS\130693242.5
this Agreement for the amount so repaid or recovered, to the same extent as if such amount had never originally been received by the Agent or any Lender, and the provisions of this sentence shall survive, and continue in effect, notwithstanding any revocation or release of this Agreement. Each Borrower hereby expressly and unconditionally waives all rights of subrogation, reimbursement and indemnity of every kind against any other Borrower, and all rights of recourse to any assets or property of any other Borrower, and all rights to any collateral or security held for the payment and performance of any Secured Obligations, including (but not limited to) any of the foregoing rights which Borrower may have under any present or future document or agreement with any other Borrower or other person, and including (but not limited to) any of the foregoing rights which any Borrower may have under any equitable doctrine of subrogation, implied contract, or unjust enrichment, or any other equitable or legal doctrine.
US-DOCS\130693051.4
ACTIVE/116115708.1
5
US-DOCS\130693242.5
US-DOCS\130693051.4
ACTIVE/116115708.1
6
US-DOCS\130693242.5
and any other matter pertinent hereto as such Borrower may desire, and such Borrower is not relying upon or expecting the Agent to furnish to it any information now or hereafter in the Agent’s possession concerning the same or any other matter.
US-DOCS\130693051.4
ACTIVE/116115708.1
US-DOCS\130693242.5
5
US-DOCS\130693051.4
ACTIVE/116115708.1
US-DOCS\130693242.5
EXHIBIT A ADVANCE REQUEST
To: Agent: Date: , 20[ ]
Hercules Capital, Inc. (the “Agent”) 000 Xxxxxxxx Xxxxxx, Xxxxx 000 Xxxx Xxxx, XX 00000
email: xxxxx@xxxx.xxx Attn:
Kaleido Biosciences, Inc., a Delaware corporation, on behalf of itself and each of its Subsidiaries party to the Agreement (collectively, “Borrower”) hereby requests from Hercules Capital, Inc. (“Lenders”) an Advance in the amount of Dollars ($ ) (the “Advance Amount”) on , (the “Advance Date”) pursuant to the Loan and Security Agreement among Borrower, Agent and the Lenders (the “Agreement”). Capitalized words and other terms used but not otherwise defined herein are used with the same meanings as defined in the Agreement.
Please:
or
Address:
ABA Number:
Account Number:
Account Name: Contact Person: Phone Number
To Verify Wire Info: Email address:
Borrower represents that the conditions precedent to the Advance set forth in the Agreement are satisfied and shall be satisfied upon the making of such Advance, including but not limited to: (i) that no event that has had or could reasonably be expected to have a Material Adverse Effect has occurred and is continuing; (ii) that the representations and warranties set forth in the Agreement are and shall be true and correct in all material respects on and as of the Advance Date with the same effect as though made on and as of such date, except to the extent such representations and warranties expressly relate to an earlier date;
US-DOCS\130693051.4
ACTIVE/116115708.1
US-DOCS\130693242.5
supporting this representation and, based upon such review in its sole discretion, the Lenders may decline to fund the requested Advance.
Borrower hereby represents that Borrower’s corporate status and locations have not changed since the date of the Agreement or, if the Attachment to this Advance Request is completed, are as set forth in the Attachment to this Advance Request.
Borrower agrees to notify Agent promptly before the funding of the Loan if any of the matters which have been represented above shall not be true and correct on the Borrowing Date and if Agent has received no such notice before the Advance Date then the statements set forth above shall be deemed to have been made and shall be deemed to be true and correct as of the Advance Date.
Executed as of [ ], 20[ ].
BORROWER:
KALEIDO BIOSCIENCES, INC.
SIGNATURE: TITLE: PRINT NAME:
US-DOCS\130693051.4
ACTIVE/116115708.1
2
US-DOCS\130693242.5
ATTACHMENT TO ADVANCE REQUEST
Dated:
Borrower hereby represents and warrants to Agent that Borrower’s current name and organizational status is as follows:
Name: Kaleido Biosciences, Inc.
Type of organization: Corporation
State of organization: Delaware
Organization file number: 00-0000000
Borrower hereby represents and warrants to Agent that xxx xxxxxx xxxxxxxxx, xxxxxx, xxxxxx and postal codes of its current locations are as follows:
[ ]
Borrower hereby represents and warrants to Agent that the Advance Amount does not exceed the Maximum Term Loan Amount as follows:
[c. Is clause a. less than or equal to clause b.? Yes/Compliant No/Non-Compliant ]
US-DOCS\130693051.4
ACTIVE/116115708.1
US-DOCS\130693242.5
3
US-DOCS\130693051.4
ACTIVE/116115708.1
US-DOCS\130693242.5
EXHIBIT B
NAME, LOCATIONS, AND OTHER INFORMATION FOR BORROWER
Name: Kaleido Biosciences, Inc.
Type of organization: Corporation
State of organization: Delaware Organization file number: 5681784
Name: Xxxxxx Bio, Inc.
Type of organization: Corporation
State of organization: Delaware Organization file number: 6000485
Name: VL32, Inc.
Used during dates of: January, 2015 – November, 2015 Type of Organization: Same as above.
State of organization: Same as above. Organization file Number: Same as above. Borrower’s fiscal year ends on December 31
Borrower’s federal employer tax identification number is: 00-0000000
US-DOCS\130693051.4
ACTIVE/116115708.1
US-DOCS\130693242.5
EXHIBIT C
BORROWER’S PATENTS, TRADEMARKS, COPYRIGHTS AND LICENSES
U.S. 9,492,473, Glycan Therapeutics and Related Methods Thereof
U.S. 9,757,403, Glycan Therapeutics and Related Methods Thereof
U.S. 9,901,595, Glycan Therapeutics and Related Methods Thereof
U.S. 10,314,853, Glycan Therapeutics and Related Methods Thereof
EP 3071235 Glycan Therapeutic Compositions and Related Methods Thereof HK 1228788 Glycan Therapeutic Compositions and Related Methods Thereof ZA 2017/04735 Glycan Therapeutic Compositions and Related Methods Thereof Kaleido Portfolio Listing:
Application No. |
Country |
Status |
Filing Date |
Application Title |
15/017396 |
US |
Granted |
05-Feb- 2016 |
GLYCAN THERAPEUTICS AND RELATED METHODS THEREOF |
15/286382 |
US |
Granted |
05-Oct- 2016 |
GLYCAN THERAPEUTICS AND RELATED METHODS THEREOF |
15/385331 |
US |
Granted |
20-Dec- 2016 |
GLYCAN THERAPEUTICS AND RELATED METHODS THEREOF |
US-DOCS\130693051.4
ACTIVE/116115708.1
US-DOCS\130693242.5
Application No. |
Country |
Status |
Filing Date |
Application Title |
15/624372 |
US |
Granted |
15-Jun- 2017 |
GLYCAN THERAPEUTICS AND RELATED METHODS THEREOF |
16/396067 |
US |
Pending |
26-Apr- 2019 |
GLYCAN THERAPEUTICS AND RELATED METHODS THEREOF |
16/395929 |
US |
Pending |
26-Apr- 2019 |
GLYCAN THERAPEUTICS AND RELATED METHODS THEREOF |
2016212030 |
AU |
Published |
13-Jan- 2016 |
GLYCAN THERAPEUTICS AND RELATED METHODS THEREOF |
1120170156148 |
BR |
Published |
13-Jan- 2016 |
GLYCAN THERAPEUTICS AND RELATED METHODS THEREOF |
2973617 |
CA |
Published |
13-Jan- 2016 |
GLYCAN THERAPEUTICS AND RELATED METHODS THEREOF |
201701901 |
CL |
Published |
13-Jan- 2016 |
GLYCAN THERAPEUTICS AND RELATED METHODS THEREOF |
201680017749.4 |
CN |
Published |
13-Jan- 2016 |
GLYCAN THERAPEUTICS AND RELATED METHODS THEREOF |
201791702 |
EA |
Published |
13-Jan- 2016 |
GLYCAN THERAPEUTICS AND RELATED METHODS THEREOF |
16704085.6 |
EP |
Granted |
13-Jan- 2016 |
GLYCAN THERAPEUTIC COMPOSITIONS AND RELATED METHODS THEREOF |
US-DOCS\130693051.4
ACTIVE/116115708.1
US-DOCS\130693242.5
Application No. |
Country |
Status |
Filing Date |
Application Title |
17206409.9 |
EP |
Published |
13-Jan- 2016 |
GLYCAN THERAPEUTIC COMPOSITIONS AND RELATED METHODS THEREOF |
17102650.8 |
HK |
Granted |
13-Jan- 2016 |
GLYCAN THERAPEUTICS AND RELATED METHODS THEREOF |
PID201704900 |
ID |
Published |
13-Jan- 2016 |
GLYCAN THERAPEUTICS AND RELATED METHODS THEREOF |
P00201909582 |
ID |
Pending |
25-Oct- 2019 |
GLYCAN THERAPEUTICS AND RELATED METHODS THEREOF |
253195 |
IL |
Published |
13-Jan- 2016 |
GLYCAN THERAPEUTICS AND RELATED METHODS THEREOF |
201717026559 |
IN |
Published |
13-Jan- 2016 |
GLYCAN THERAPEUTICS AND RELATED METHODS THEREOF |
2017-557273 |
JP |
Published |
13-Jan- 2016 |
GLYCAN THERAPEUTICS AND RELATED METHODS THEREOF |
00-0000-0000000 |
KR |
Pending |
13-Jan- 2016 |
GLYCAN THERAPEUTICS AND RELATED METHODS THEREOF |
MX/a/2017/009589 |
MX |
Published |
13-Jan- 2016 |
GLYCAN THERAPEUTICS AND RELATED METHODS THEREOF |
PI2017001075 |
MY |
Pending |
13-Jan- 2016 |
GLYCAN THERAPEUTICS AND RELATED METHODS THEREOF |
US-DOCS\130693051.4
ACTIVE/116115708.1
US-DOCS\130693242.5
Application No. |
Country |
Status |
Filing Date |
Application Title |
733270 |
NZ |
Pending |
13-Jan- 2016 |
GLYCAN THERAPEUTICS AND RELATED METHODS THEREOF |
0-0000-000000 |
PH |
Published |
13-Jan- 2016 |
GLYCAN THERAPEUTICS AND RELATED METHODS THEREOF |
2017110006033 |
SG |
Published |
13-Jan- 2016 |
GLYCAN THERAPEUTICS AND RELATED METHODS THEREOF |
PCT/US2016/013305 |
WO |
Inactive |
13-Jan- 2016 |
GLYCAN THERAPEUTICS AND RELATED METHODS THEREOF |
2017/04735 |
ZA |
Granted |
13-Jan- 2016 |
GLYCAN THERAPEUTICS AND RELATED METHODS THEREOF |
16/140091 |
US |
Published |
24-Sep- 2018 |
GLYCAN THERAPEUTIC COMPOSITIONS AND RELATED METHODS THEREOF |
2016253010 |
AU |
Published |
23-Apr- 2016 |
GLYCAN THERAPEUTIC COMPOSITIONS AND RELATED METHODS THEREOF |
2983236 |
CA |
Published |
23-Apr- 2016 |
GLYCAN THERAPEUTIC COMPOSITIONS AND RELATED METHODS THEREOF |
201680035931.2 |
CN |
Published |
23-Apr- 2016 |
GLYCAN THERAPEUTIC COMPOSITIONS AND RELATED METHODS THEREOF |
16722465.8 |
EP |
Published |
23-Apr- 2016 |
GLYCAN THERAPEUTICS AND METHODS OF TREATMENT |
US-DOCS\130693051.4
ACTIVE/116115708.1
US-DOCS\130693242.5
Application No. |
Country |
Status |
Filing Date |
Application Title |
18110824.1 |
HK |
Pending |
22-Aug- 2018 |
GLYCAN THERAPEUTICS AND METHODS OF TREATMENT |
2017-555593 |
JP |
Published |
23-Apr- 2016 |
GLYCAN THERAPEUTIC COMPOSITIONS AND RELATED METHODS THEREOF |
735895 |
NZ |
Pending |
23-Apr- 2016 |
GLYCAN THERAPEUTIC COMPOSITIONS AND RELATED METHODS THEREOF |
PCT/US2016/029082 |
WO |
Inactive |
23-Apr- 2016 |
GLYCAN THERAPEUTICS AND METHODS OF TREATMENT |
16/270051 |
US |
Pending |
07-Feb- 2019 |
MICROBIOME REGULATORS AND RELATED USES THEREOF |
2016253011 |
AU |
Published |
23-Apr- 2016 |
MICROBIOME REGULATORS AND RELATED USES THEREOF |
2983016 |
CA |
Published |
23-Apr- 2016 |
MICROBIOME REGULATORS AND RELATED USES THEREOF |
201680036013.1 |
CN |
Published |
23-Apr- 2016 |
MICROBIOME REGULATORS AND RELATED USES THEREOF |
16724150.4 |
EP |
Published |
23-Apr- 2016 |
MICROBIOME REGULATORS AND RELATED USES THEREOF |
MX/a/2017/013562 |
MX |
Published |
23-Apr- 2016 |
MICROBIOME REGULATORS AND RELATED USES THEREOF |
US-DOCS\130693051.4
ACTIVE/116115708.1
US-DOCS\130693242.5
Application No. |
Country |
Status |
Filing Date |
Application Title |
735897 |
NZ |
Pending |
23-Apr- 2016 |
MICROBIOME REGULATORS AND RELATED USES THEREOF |
PCT/US2016/029083 |
WO |
Inactive |
23-Apr- 2016 |
MICROBIOME REGULATORS AND RELATED USES THEREOF |
2017/06675 |
ZA |
Pending |
23-Apr- 2016 |
MICROBIOME REGULATORS AND RELATED USES THEREOF |
2016311452 |
AU |
Published |
25-Aug- 2016 |
GLYCAN COMPOSITIONS AND USES THEREOF |
2994430 |
CA |
Published |
25-Aug- 2016 |
GLYCAN COMPOSITIONS AND USES THEREOF |
201680059550.8 |
CN |
Published |
25-Aug- 2016 |
GLYCAN COMPOSITIONS AND USES THEREOF |
16778131.9 |
EP |
Published |
25-Aug- 2016 |
GLYCAN COMPOSITIONS AND USES THEREOF |
2018-510084 |
JP |
Published |
25-Aug- 2016 |
GLYCAN COMPOSITIONS AND USES THEREOF |
MX/a/2018/002301 |
MX |
Published |
25-Aug- 2016 |
GLYCAN COMPOSITIONS AND USES THEREOF |
739502 |
NZ |
Pending |
25-Aug- 2016 |
GLYCAN COMPOSITIONS AND USES THEREOF |
US-DOCS\130693051.4
ACTIVE/116115708.1
US-DOCS\130693242.5
Application No. |
Country |
Status |
Filing Date |
Application Title |
15/754850 |
US |
Published |
25-Aug- 2016 |
GLYCAN COMPOSITIONS AND USES THEREOF |
PCT/US2016/048794 |
WO |
Inactive |
25-Aug- 2016 |
GLYCAN COMPOSITIONS AND USES THEREOF |
201780056075.3 |
CN |
Published |
13-Jul- 2017 |
GLYCAN COMPOSITIONS AND METHODS OF USE |
17746236.3 |
EP |
Published |
13-Jul- 2017 |
GLYCAN COMPOSITIONS AND METHODS OF USE |
2019-501469 |
JP |
Published |
13-Jul- 2017 |
GLYCAN COMPOSITIONS AND METHODS OF USE |
16/316755 |
US |
Pending |
10-Jan- 2019 |
GLYCAN COMPOSITIONS AND METHODS OF USE |
PCT/US2017/042022 |
WO |
Inactive |
13-Jul- 2017 |
GLYCAN COMPOSITIONS AND METHODS OF USE |
2017370682 |
AU |
Published |
06-Dec- 2017 |
GLYCAN POLYMERS AND RELATED METHODS THEREOF |
3046207 |
CA |
Published |
06-Dec- 2017 |
GLYCAN POLYMERS AND RELATED METHODS THEREOF |
201780075847.8 |
CN |
Published |
06-Dec- 2017 |
GLYCAN POLYMERS AND RELATED METHODS THEREOF |
US-DOCS\130693051.4
ACTIVE/116115708.1
US-DOCS\130693242.5
Application No. |
Country |
Status |
Filing Date |
Application Title |
17832599.9 |
EP |
Published |
06-Dec- 2017 |
GLYCAN POLYMERS AND RELATED METHODS THEREOF |
2019-530061 |
JP |
Pending |
06-Dec- 2017 |
GLYCAN POLYMERS AND RELATED METHODS THEREOF |
754185 |
NZ |
Pending |
06-Dec- 2017 |
GLYCAN POLYMERS AND RELATED METHODS THEREOF |
16/466945 |
US |
Published |
05-Jun- 2019 |
GLYCAN POLYMERS AND RELATED METHODS THEREOF |
PCT/US2017/064974 |
WO |
Inactive |
06-Dec- 2017 |
GLYCAN POLYMERS AND RELATED METHODS THEREOF |
PCT/US2018/059100 |
WO |
Published |
03-Nov- 2018 |
GLYCAN PREPARATIONS FOR THE TREATMENT OF INFECTION |
PCT/US2018/059102 |
WO |
Published |
03-Nov- 2018 |
GLYCAN PREPARATIONS AND METHODS OF USE FOR HYPERAMMONEMIA |
PCT/US2018/059101 |
WO |
Published |
03-Nov- 2018 |
METHODS OF PRODUCING GLYCAN POLYMERS |
62/861252 |
US |
Pending |
13-Jun- 2019 |
GLYCAN PREPARATIONS AND MICROBES |
62/790671 |
US |
Pending |
10-Jan- 2019 |
GLYCAN PREPARATIONS AND METHODS OF USE FOR TREATING NON- ALCOHOLIC FATTY LIVER DISEASE |
US-DOCS\130693051.4
ACTIVE/116115708.1
US-DOCS\130693242.5
Application No. |
Country |
Status |
Filing Date |
Application Title |
62/790631 |
US |
Pending |
10-Jan- 2019 |
GLYCAN PREPARATIONS AND METHODS OF USE IN RENAL DISEASES |
62/880369 |
US |
Pending |
30-Jul- 2019 |
GLYCAN PREPARATIONS AND METHODS OF USE IN RENAL DISEASES |
PCT/US2018/042174 |
WO |
Published |
13-Jul- 2018 |
GLYCAN COMPOSITIONS AND METHODS OF USE |
62/861268 |
US |
Pending |
13-Jun- 2019 |
COMPOSITIONS AND METHODS |
62/861256 |
US |
Pending |
13-Jun- 2019 |
COMPOSITIONS AND METHODS |
62/861270 |
US |
Pending |
13-Jun- 2019 |
COMPOSITIONS AND METHODS |
PCT/US2019/047595 |
WO |
Pending |
00-Xxx- 0000 |
XXXXXXXXXXXXXXX COMPOSITIONS AND METHODS OF USE THEREOF FOR REDUCING AMMONIA LEVELS |
PCT/US2019/060626 |
WO |
Pending |
0-Xxx- 0000 |
XXXXXXXXXXXXXXX COMPOSITIONS AND METHODS OF USE THEREOF |
62/791006 |
US |
Pending |
10-Jan- 2019 |
FORMULATIONS FOR MODULATING MICROBIOME ACTIVITY |
62/845305 |
US |
Pending |
8-May- 0000 |
XXXXXXXXXXXXXXX COMPOSITIONS AND METHODS OF USE |
US-DOCS\130693051.4
ACTIVE/116115708.1
US-DOCS\130693242.5
Application No. |
Country |
Status |
Filing Date |
Application Title |
62/910179 |
US |
Pending |
3-Oct- 0000 |
XXXXXXXXXXXXXXX COMPOSITIONS AND METHODS OF USE |
|
|
|
|
|
The following marks have been applied for but not yet granted, unless otherwise noted.
Xxxx |
Country |
Status |
Serial No. |
Filin g Date |
Reg. No. |
Reg . Dat e |
Clas s |
KALEIDO |
Canada |
Allowed |
1776706 |
00- Xxx- 00 |
|
|
X/X |
XXXXXXX |
Xxxxx (Xxxxxx'x Xxxxxxxx) |
Registere d |
1314387 |
8- Apr- 16 |
1314387 |
8- Apr- 16 |
05 Int. |
KALEIDO |
European Union |
Registere d |
01722407 2 |
20- Sep- 17 |
01722407 2 |
17- Jan- 18 |
01 Int. |
KALEIDO |
European Union |
Registere d |
01794107 3 |
10- Aug- 18 |
01794107 3 |
25- Dec -18 |
05 Int. |
KALEIDO |
Japan |
Registere d |
1314387 |
8- Apr- 16 |
1314387 |
8- Apr- 16 |
05 Int. |
KALEIDO |
Mexico |
Registere d |
1314387 |
8- Apr- 16 |
1314387 |
8- Apr- 16 |
05 Int. |
US-DOCS\130693051.4
ACTIVE/116115708.1
US-DOCS\130693242.5
KALEIDO |
United States of America |
Allowed |
86/78335 7 |
9- Oct- 15 |
|
|
05 Int. |
KALEIDO |
Int'l Registratio n - Madrid Protocol |
Registere d |
A0057956 |
8- Apr- 16 |
1314387 |
8- Apr- 16 |
05 Int.; 42 Int. |
|
United States of America |
Pending* |
88/36961 2 |
3- Apr- 19 |
|
|
05 Int. |
|
United States of America |
Allowed |
88/36964 4 |
3- Apr- 19 |
|
|
05 Int. |
|
Int'l Registratio n |
Registere d |
|
2- Oct- 19 |
1497529 |
2- Oct- 19 |
05 Int. |
MICROBIOM E ENHANCER |
United States of America |
Pending |
87/19534 0 |
6- Oct- 16 |
|
|
05 Int. |
MMT |
European Union |
Published |
1482563 |
19- Jun- 19 |
|
|
05 Int. |
MMT |
Japan |
Pending |
0000000 |
00- Xxx- 00 |
|
|
00 Xxx. |
XXX |
Xxxxxx Xxxxxx of America |
Published |
88/23567 0 |
19- Dec- 18 |
|
|
05 Int. |
MMT |
Int'l Registratio n - Madrid Protocol |
Registere d |
A0086981 |
19- Jun- 19 |
1482563 |
19- Jun- 19 |
05 Int. |
|
|
|
|
|
|
|
|
* international filing for class 5 on October 2, 2019. Appl. # not yet available
US-DOCS\130693051.4
ACTIVE/116115708.1
US-DOCS\130693242.5
xxxxxxx.xxx xxxxxxxxxx.xxx xxxxxxxxxx.xxx xxxxxxxxxxxxxxxxxx.xxx xxxxxxxxxxxxxxxxxxx.xxx xxxxxxxxx.xxx xxxxxxxxx.xxx
xx00.xxx xxxxxx-xxx.xxx xxxxxx-xxx.xxx xxxxxx-xxx.xxx xxxxxxxxx.xxx xxxxxxxxx.xxx
xxxxxxxxxxxx.xxx
U.S. 8,466,242, Polymeric Acid Catalysts and Uses Thereof
U.S. 8,476,388, Polymeric Acid Catalysts and Uses Thereof
U.S. 9,079,171, Polymeric Acid Catalysts and Uses Thereof
U.S. 9,205,418, Polymeric Acid Catalysts and Uses Thereof
U.S. 10,131,721, Polymeric Acid Catalysts and Uses Thereof
U.S. 9,238,845, Methods of Producing Sugars from Biomass Feedstocks EP 2681547, Polymeric Acid Catalysts and Uses Thereof
US-DOCS\130693051.4
ACTIVE/116115708.1
US-DOCS\130693242.5
AR 085503B1, Polymeric Acid Catalysts and Uses Thereof
US-DOCS\130693051.4
ACTIVE/116115708.1
US-DOCS\130693242.5
AU 2012223494, Polymeric Acid Catalysts and Uses Thereof CA 2,864,086, Polymeric Acid Catalysts and Uses Thereof
CN ZL201280018901.2, Polymeric Acid Catalysts and Uses Thereof CO 30876, Polymeric Acid Catalysts and Uses Thereof
ID 465560, Polymeric Acid Catalysts and Uses Thereof MX 344405, Polymeric Acid Catalysts and Uses Thereof NZ 616047, Polymeric Acid Catalysts and Uses Thereof XX 000000, Polymeric Acid Catalysts and Uses Thereof ZA 2013/06233 Polymeric Acid Catalysts and Uses Thereof
CN ZL201380055050.3, Polymeric and Solid-Supported Catalysts, and Methods of Digesting Cellulosic Materials Using such Catalysts
Xxxxxx Bio Portfolio Listing:
US-DOCS\130693051.4
ACTIVE/116115708.1
US-DOCS\130693242.5
|
Title/Inventors |
Pub. No. Serial No. |
C & E Ref. |
Xxxxxx Ref. |
Status |
Patent No. / Issue date |
1 |
POLYMERIC ACID CATALYSTS AND |
U.S.S.N. 13/406,490* |
51169-002003 |
CAD-001 US3 |
Granted |
9,079,171 |
|
USES THEREOF |
|
|
|
|
|
|
|
Filed 2/27/2012 |
|
|
|
7/14/2015 |
|
|
U.S.S.N. 13/406,517 |
51169-002004 |
CAD-001 US4 |
Granted |
8,466,242 |
|
Xxxx X. Xxxxxxx |
|
|
|
|
|
|
|
Filed 2/27/2012 |
|
|
|
6/18/2013 |
|
Xxxxx X. Xxxxxx |
|
|
|
|
|
|
|
U.S.S.N. 13/657,724 |
51169-002005 |
CAD-001 US5 |
Granted |
8,476,388 |
|
Xxxxxx Xxxxxx |
|
|
|
|
|
|
|
Filed 10/22/2012 |
|
|
|
7/2/2013 |
|
|
U.S.S.N. 13/865,048 |
51169-002006 |
CAD-001 US6 |
Granted |
9,205,418 |
|
|
Filed 4/17/2013 |
|
|
|
12/8/2015 |
US-DOCS\130693051.4
ACTIVE/116115708.1
US-DOCS\130693242.5
|
Title/Inventors |
Pub. No. Serial No. |
C & E Ref. |
Xxxxxx Ref. |
Status |
Patent No. / Issue date |
|
Corresponding to International |
U.S.S.N. 14/730,143* |
51169-002007 |
CAD-001 US7 |
Granted |
10,131,721 |
Application PCT/US2012/026820 |
|
|
|
|
|
|
filed 2/27/2012 |
Filed 6/3/2015 |
|
|
|
11/20/2018 |
|
|
U.S.S.N. 16/175,213 |
51169-002008 |
CAD-001US8 |
Published |
|
|
Priority information: |
Filed 10/30/2018 |
|
|
|
||
61/447,311 filed 2/28/2011 |
|
|
|
|
||
AR P20120100642 |
51169-002AR3 |
CAD-001 AR |
Granted |
AR085503B1 |
||
61/522,351 filed 8/11/2011 |
Filed 2/28/2012 |
|
|
|
08/30/2018 |
|
|
AU 2012223494 |
51169-002AU3 |
CAD-001 AU |
Granted |
2012223494 |
|
|
|
|
|
|
07/20/2017 |
|
|
BR1120130220473 |
51169-002BR3 |
CAD-001 BR |
Pending |
|
|
|
CA 2,864,086 |
51169-002CA3 |
CAD-001 CA |
Granted |
2,864,086 |
|
|
|
|
|
|
07/10/2018 |
|
|
CL 2463-2013 |
51169-002CL3 |
CAD-001 CL |
Abandoned |
|
|
|
CN 201280018901.2 |
51169-002CN3 |
CAD-001 CN |
Granted |
ZL201280018901.2 |
|
|
|
|
|
|
02/27/2018 |
|
|
CO 13230542 |
51169-002CO3 |
XXX-000 XX |
Xxxxxxx |
00000 |
|
|
|
|
|
|
08/18/2015 |
|
|
EP 12709207.0 |
51169-002EP3 |
CAD-001 EP1 |
Granted |
2681247 |
|
|
|
|
|
|
04/04/2018 |
|
|
EP 18163838.8 |
51169-002EP4 |
CAD-001 EP2 |
Published |
|
|
|
ID W00201304395 |
51169-002ID3 |
CAD-001 ID |
Granted |
IDP0000465560 |
|
|
|
|
|
|
06/20/2017 |
|
|
IN 7946/DELNP/2013 |
51169-002IN3 |
CAD-001 IN |
Pending |
|
|
|
JM 18/1/5278 |
51169-002JM3 |
CAD-001 JM |
Pending |
|
|
|
KR 00-0000-0000000 |
51169-002KR3 |
CAD-001 KR |
Abandoned |
|
|
|
MX/a/2013/009920 |
51169-002MX3 |
CAD-001 MX |
Granted |
344405 |
|
|
|
|
|
|
12/14/2016 |
US-DOCS\130693051.4
ACTIVE/116115708.1
US-DOCS\130693242.5
|
Title/Inventors |
Pub. No. Serial No. |
C & E Ref. |
Xxxxxx Ref. |
Status |
Patent No. / Issue date |
|
|
MX/a/2015/016430 |
51169-002MX4 |
CAD-001 MX |
Pending |
|
MY PI 2013003157 |
51169-002MY3 |
CAD-001 MY |
Abandoned |
|
||
NZ 616047 |
51169-002NZ3 |
CAD-001 NZ |
Granted |
616047 |
||
|
|
|
|
3/30/2016 |
||
PH 0-0000-000000 |
51169-002PH3 |
CAD-001 PH |
Pending |
|
||
RU 2013143822 |
51169-002RU3 |
CAD-001 RU |
Abandoned |
|
||
SG 201306465-4 |
51169-002SG3 |
CAD-001 SG |
Granted |
192958 |
||
|
|
|
|
3/9/2016 |
||
TH 0000000000 |
51169-002TH3 |
XXX-000 XX |
Xxxxxxx |
|
||
XX 0000/00000 |
00000-000XX0 |
XXX-000 XX |
Granted |
2013/06233 |
||
|
|
|
|
12/20/2017 |
||
2 |
METHODS OF PRODUCING SUGARS |
U.S.S.N. 13/831,495 |
51169-003001 |
CAD-006 US2 |
Granted |
9,238,845 |
|
FROM BIOMASS FEEDSTOCKS |
|
|
|
|
|
|
|
Filed 3/14/2013 |
|
|
|
1/19/2016 |
|
Xxxxx X. Xxxxxx |
|
|
|
|
|
|
Xxxx X. Xxxxxxx |
|
|
|
|
|
|
Xxxxxx Xxxxx |
|
|
|
|
|
|
Xxxxxx Xxxxxx |
|
|
|
|
|
|
Priority information: |
|
|
|
|
|
|
61/693,210 filed 8/24/2012 |
|
|
|
|
|
3 |
POLYMERIC AND SOLID-SUPPORTED |
U.S.S.N. 14/423,697* |
51169-004004 |
CAD-004 US |
Abandoned |
|
|
CATALYSTS, AND METHODS OF |
|
|
|
|
|
|
DIGESTING CELLULOSIC MATERIALS USING SUCH CATALYSTS |
Filed 2/24/2015 |
|
|
|
|
|
|
CA 2,922,254 |
51169-004CA4 |
CAD-004 CA |
Abandoned |
|
|
Xxxx X. Xxxxxxx |
CN 201380055050.3 |
51169-004CN4 |
CAD-004 CN |
Granted |
ZL201380055050.3 |
|
|
|
|
|
|
4/12/2017 |
US-DOCS\130693051.4
ACTIVE/116115708.1
US-DOCS\130693242.5
|
Title/Inventors |
Pub. No. Serial No. |
C & E Ref. |
Xxxxxx Ref. |
Status |
Patent No. / Issue date |
|
Xxxxx X. Xxxxxx Xxxxxx Xxxxxxxx Xxxxxx Xxxxx
Corresponding to International Application No. PCT/US2013/056389 filed 8/23/2013
Priority information: 61/693,200 filed 8/24/2012 61/693,210 filed 8/24/2012
61/693,213 filed 8/24/2012
13/831,495 filed 3/14/2013 |
EP 13831228.5 |
51169-004EP4 |
CAD-004 EP |
Abandoned |
|
KR 00-0000-0000000 |
51169-004KR4 |
CAD-004 KR |
Abandoned |
|
||
4 |
OLIGOSACCHARIDE COMPOSITIONS AND METHODS FOR PRODUCING THEREOF
Xxxx X. Xxxxxxx Xxxxxxxxx X. Xxxxxx Xxxxx Xxx Xxxxxxxx X. Xxxxxx Xxxxxx Xxxxxx Xxxx Xxxxxx Xxxxxxx Xxxxx Xxxxx Xxxxxxxxx Xxxxxx X’Xxxxxx |
U.S.S.N. 14/795,720*
Filed 7/9/2015 |
51169-007003 |
CAD-012 US |
Published |
|
2015287703 |
51169-007AU3 |
CAD-012AU |
Abandoned |
|
||
2019222849 |
51169-007AU4 |
CAD-012AU1 |
Published |
|
||
BR112017000345-7 |
51169-007BR3 |
CAD-012 BR |
Pending |
|
||
CA 2,954,662 |
51169-007CA3 |
CAD-012 CA |
Pending |
|
||
201580048065.6 |
51169-007CN3 |
CAD-012 CN |
Published |
|
||
15819734.3 |
51169-007EP3 |
CAD-012 EP |
Published |
|
||
17111776.8 |
51169-007HK3 |
CAD-012 HK |
Pending |
|
||
P00 2017 00913 |
51169-007ID3 |
CAD-012 ID |
Pending |
|
||
249982 |
51169-007IL3 |
CAD-012 IL |
Pending |
|
||
201717004105 |
51169-007IN3 |
CAD-012 IN |
Pending |
|
||
2017-522455 |
00000-000XX0 |
XXX-000 XX |
Published |
|
||
MX/a/2017/000319 |
51169-007MX3 |
CAD-012 MX |
Pending |
|
US-DOCS\130693051.4
ACTIVE/116115708.1
US-DOCS\130693242.5
|
Title/Inventors |
Pub. No. Serial No. |
C & E Ref. |
Xxxxxx Ref. |
Status |
Patent No. / Issue date |
|
Corresponding to International Application No. PCT/US2015/039795 filed 7/9/2015
Priority information: 62/022,579 filed 7/9/2014 62/108,035 filed 1/26/2015 |
PI 2017000019 |
51169-007MY3 |
CAD-012 MY |
Pending |
|
5 |
OLIGOSACCHARIDE COMPOSITIONS FOR USE AS FOOD INGREDIENTS AND METHODS OF PRODUCING THEREOF
Xxxx X. Xxxxxxx Xxxxx Xxxxxxxxxxx Xxxxxxx X. Xxxxxxx
Corresponding to International Application PCT/US2016/013265 filed January 13, 2016
Priority information: 62/108,036 filed 1/26/2015 |
U.S.S.N. 15/546,438
Filed 7/26/2017 |
51169-008002 |
CAD-013US |
Abandoned |
|
U.S.S.N. 16/440,261
Filed 6/13/2019 |
51169-008003 |
CAD-013US2 |
Published |
|
||
AU 2016212025 |
51169-008AU2 |
CAD-013AU |
Published |
|
||
BR 1120170159465 |
51169-008BR2 |
CAD-013BR |
Published |
|
||
CA 2,975,091 |
51169-008CA2 |
CAD-013CA |
Published |
|
||
CN 201680016821.1 |
51169-008CN2 |
CAD-013CN |
Published |
|
||
EP 16743841.5 |
51169-008EP2 |
CAD-013EP |
Published |
|
||
HK 18106258.4 |
51169-008HK2 |
CAD-013HK |
Pending |
|
||
ID PID201705111 |
51169-008ID2 |
CAD-013ID |
Pending |
|
||
IN 201717028052 |
51169-008IN2 |
CAD-013IN |
Published |
|
||
JP 2017-557270 |
51169-008JP2 |
CAD-013JP |
Published |
|
||
MX/a/2017/009722 |
51169-008MX2 |
CAD-013MX |
Published |
|
||
MY PI 2017001086 |
51169-008MY2 |
CAD-013MY |
Pending |
|
||
PH 0-0000-000000 |
51169-008PH2 |
CAD-013PH |
Published |
|
||
RU 2017130166 |
51169-008RU2 |
CAD-013RU |
Pending |
|
||
ZA 2017/05200 |
51169-008ZA2 |
CAD-013ZA |
Pending |
|
US-DOCS\130693051.4
ACTIVE/116115708.1
US-DOCS\130693242.5
|
Title/Inventors |
Pub. No. Serial No. |
C & E Ref. |
Xxxxxx Ref. |
Status |
Patent No. / Issue date |
6 |
OLIGOSACCHARIDE COMPOSITIONS FOR USE IN NUTRITIONAL COMPOSITIONS, AND METHODS OF PRODUCING THEREOF
Xxxx X. Xxxxxxx
Corresponding to International Application PCT/US2016/013271
Filed January 13, 2016
Priority information: 62/108,038 filed 1/26/2015 |
U.S.S.N 15/546,508
Filed 07/26/2017 |
51169-010002 |
CAD-015US |
Published |
|
AU 2016212026 |
51169-010AU2 |
CAD-015AU |
Published |
|
||
CA 2,975,093 |
51169-010CA2 |
CAD-015CA |
Published |
|
||
CN 201680016981.6 |
51169-010CN2 |
CAD-015CN |
Published |
|
||
EP 16743842.3 |
51169-010EP2 |
CAD-015EP |
Published |
|
||
HK 18106257.5 |
51169-010HK2 |
CAD-015HK |
Pending |
|
||
JP 2017-557271 |
51169-010JP2 |
CAD-015JP |
Published |
|
||
MX/a/2017/009720 |
51169-010MX2 |
CAD-015MX |
Published |
|
||
7# |
OLIGOSACCHARIDE COMPOSITIONS FOR USE AS ANIMAL FEED AND METHODS OF PRODUCING THEREOF
Xxxx X. Xxxxxxx Xxxxx Xxxxxxxxxxx Xxxxxxx X. Xxxxxxx Xxxxxxxxx X. Xxxxxx
Corresponding to PCT/US2016/013280
Filed 1/13/2016
Priority information: 62/108,037 filed 1/26/2015 62/216,945 filed 9/10/2015
62/216,952 filed 9/10/2015 |
U.S.S.N. 14/995,129*
Filed 1/13/2016 |
51169-017001 |
CAD-014 US |
Pending |
|
BR 1120170159449 |
51169-017BR1 |
CAD-014BR |
Published |
|
||
CA 2,975,095 |
51169-017CA1 |
CAD-014CA |
Published |
|
||
CN 201680016822.6 |
51169-017CN1 |
CAD-014CN |
Published |
|
||
EP 16743843.1 |
51169-017EP1 |
CAD-014EP |
Granted |
EP 3250048
08/14/2019 |
||
EP 19191223.7 |
51169-017EP2 |
CAD-014EP1 |
Pending |
|
||
HK 18106256.6 |
51169-017HK1 |
CAD-014HK |
Pending |
|
||
IN 201717026993 |
51169-017IN1 |
CAD-014IN |
Published |
|
||
JP 2017-557272 |
51169-017JP1 |
CAD-014JP |
Published |
|
||
MX/a/2017/009730 |
51169-017MX1 |
CAD-014MX |
Published |
|
US-DOCS\130693051.4
ACTIVE/116115708.1
US-DOCS\130693242.5
|
Title/Inventors |
Pub. No. Serial No. |
C & E Ref. |
Xxxxxx Ref. |
Status |
Patent No. / Issue date |
|
62/255,341 filed 11/13/2015
62/255,343 filed 11/13/2015 |
|
|
|
|
|
8# |
ANIMAL THERAPEUTIC AND FEED COMPOSITIONS AND METHODS OF USE
Xxxx X. Xxxxxxx Xxxxxxxxx X. Xxxxxx
Priority information: 62/255,348 filed 11/13/2015 62/255,352 filed 11/13/2015 |
PCT/US2016/061337
Filed 11/10/2016 |
51169-020WO1 |
CAD-020 WO |
National Stage |
|
U.S.S.N. 15/775,501
Filed 05/11/2018 |
51169-020001 |
CAD-020 US |
Abandoned |
|
||
U.S.S.N. 16/293,140 Filed 03/05/2019 |
51169-020002 |
CAD-020 US1 |
Pending |
|
* US Utility application, not a national phase. # Exclusively licensed to Midori, Inc.
US-DOCS\130693051.4
ACTIVE/116115708.1
US-DOCS\130693242.5
EXHIBIT D
BORROWER’S DEPOSIT ACCOUNTS AND INVESTMENT ACCOUNTS
[***]
1 NTD: This balance is as of November 30th. Kaleido will not be making future deposits to this PacWest account. The plan is to transfer the balance (net of any remaining outstanding checks, currently ~$0.010M) to the JPM operating account by the end of December, 2019.
US-DOCS\130693051.4
ACTIVE/116115708.1
US-DOCS\130693242.5
EXHIBIT E COMPLIANCE CERTIFICATE
Hercules Capital, Inc. (as “Agent”) 000 Xxxxxxxx Xxxxxx, Xxxxx 000 Xxxx Xxxx, XX 00000
Reference is made to that certain Loan and Security Agreement dated as of December 31, 2019 and the Loan Documents (as defined therein) entered into in connection with such Loan and Security Agreement all as may be amended from time to time (hereinafter referred to collectively as the “Loan Agreement”) by and among Hercules Capital, Inc. (the “Agent”), the several banks and other financial institutions or entities from time to time party thereto (collectively, the “Lender”) and Kaleido Biosciences, Inc. (the “Company”) and each of its Qualified Subsidiaries, as Borrower. All capitalized terms not defined herein shall have the same meaning as defined in the Loan Agreement.
The undersigned is an Officer of the Company, knowledgeable of all Company financial matters, and is authorized to provide certification of information regarding the Company; hereby certifies, in such capacity and not in his individual capacity, that in accordance with the terms and conditions of the Loan Agreement, the Company is in compliance for the period ending of all covenants, conditions and terms and hereby reaffirms that all representations and warranties contained therein are true and correct in all material respects (to the extent not already qualified by materiality) on and as of the date of this Compliance Certificate with the same effect as though made on and as of such date, except to the extent such representations and warranties expressly relate to an earlier date, after giving effect in all cases to any standard(s) of materiality contained in the Loan Agreement as to such representations and warranties. Attached are the required documents supporting the above certification. The undersigned further certifies that the attached financial statements are prepared in accordance with GAAP (except for the absence of footnotes with respect to unaudited financial statement and subject to normal year-end adjustments) and are consistent from one period to the next except as explained below.
US-DOCS\130693051.4
ACTIVE/116115708.1
US-DOCS\130693242.5
REPORTING REQUIREMENT REQUIRED
US-DOCS\130693051.4
ACTIVE/116115708.1
US-DOCS\130693242.5
CHECK IF ATTACHED
US-DOCS\130693051.4
ACTIVE/116115708.1
US-DOCS\130693242.5
Interim Financial Statements Monthly within 30 days
Interim Financial Statements Quarterly within 45 days
Audited Financial Statements FYE within 90 days
ACCOUNTS OF BORROWER AND ITS SUBSIDIARIES AND AFFILIATES
The undersigned hereby also confirms the below disclosed accounts represent all depository accounts and securities accounts presently open in the name of each Borrower or Borrower’s Subsidiary, as applicable.
Each new account that has been opened since delivery of the previous Compliance Certificate is designated below with a “*”.
US-DOCS\130693051.4
ACTIVE/116115708.1
US-DOCS\130693242.5
Depository AC # |
Financial Institution |
Account Type (Depository / Securities) |
Last Month Ending Account Balance |
Purpose of Account |
||||||
BORROWER Name/Address: |
|
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1 |
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2 |
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3 |
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4 |
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5 |
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6 |
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7 |
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|||||
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||||||||||
BORROWER’S SUBSIDIARY Name/Address |
|
|||||||||
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1 |
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2 |
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3 |
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4 |
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5 |
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6 |
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7 |
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||||||||||
US-DOCS\130693051.4
ACTIVE/116115708.1
US-DOCS\130693242.5
Very Truly Yours,
KALEIDO BIOSCIENCES, INC.
By:
Name:
Its:
US-DOCS\130693051.4
ACTIVE/116115708.1
US-DOCS\130693242.5
EXHIBIT F
FORM OF JOINDER AGREEMENT
This Joinder Agreement (the “Joinder Agreement”) is made and dated as of [ ], 20[ ], and is entered into by and between ., a corporation (“Subsidiary”), and HERCULES CAPITAL, INC., a Maryland corporation (as “Agent”).
RECITALS
AGREEMENT
NOW THEREFORE, Subsidiary and Agent agree as follows:
US-DOCS\130693051.4
ACTIVE/116115708.1
US-DOCS\130693242.5
limitation any assignee for the benefit of creditors, receiver, bankruptcy trustee or itself as debtor- in-possession under any bankruptcy proceeding) to the fullest extent provided by law, any and all claims, rights or defenses to the enforcement of this Joinder Agreement on the basis that (a) it failed to receive adequate consideration for the execution and delivery of this Joinder Agreement or (b) its obligations under this Joinder Agreement are avoidable as a fraudulent conveyance.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
US-DOCS\130693051.4
ACTIVE/116115708.1
US-DOCS\130693242.5
[SIGNATURE PAGE TO JOINDER AGREEMENT]
SUBSIDIARY:
.
By:
Name:
Title:
Address:
Telephone: email:
AGENT:
HERCULES CAPITAL, INC.
By: Name: Title:
Address:
000 Xxxxxxxx Xxx., Xxxxx 000 Xxxx Xxxx, XX 00000
email: xxxxx@xxxx.xxx Telephone: 000-000-0000
US-DOCS\130693051.4
ACTIVE/116115708.1
US-DOCS\130693242.5
EXHIBIT G
ACH DEBIT AUTHORIZATION AGREEMENT
Hercules Capital, Inc.
000 Xxxxxxxx Xxxxxx, Xxxxx 000 Xxxx Xxxx, XX 00000
Re: Loan and Security Agreement dated as of December 31, 2019 (the “Agreement”) by and among Kaleido Biosciences, Inc. and each of its Qualified Subsidiaries (collectively, “Borrower”) and Hercules Capital, Inc., as agent (“Agent”) and the Lenders party thereto (collectively, the “Lenders”)
In connection with the above referenced Agreement, the Borrower hereby authorizes the Agent to initiate debit entries for (i) the periodic payments due under the Agreement and (ii) reasonable and documented out-of-pocket legal fees and costs incurred by Agent or the Lenders pursuant to Section 11.12 of the Agreement to the Borrower’s account indicated below; provided, however, that Agent shall provide Borrower with an invoice of such fees and costs. The Borrower authorizes the depository institution named below to debit to such account.
[IF FILED PUBLICLY, ACCOUNT INFO REDACTED FOR SECURITY PURPOSES]
DEPOSITORY NAME |
BRANCH |
CITY |
STATE AND ZIP CODE |
TRANSIT/ABA NUMBER |
ACCOUNT NUMBER |
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This authority will remain in full force and effect so long as any amounts are due under the Agreement. KALEIDO BIOSCIENCES, INC.
By:
Name:
Date:
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EXHIBIT H-1
FORM OF U.S. TAX COMPLIANCE CERTIFICATE
(For Foreign Lenders That Are Not Partnerships For U.S. Federal Income Tax Purposes)
Reference is hereby made to the Loan and Security Agreement dated as of December 31, 2019 (as amended, supplemented or otherwise modified from time to time, the “Loan Agreement”) by and among Kaleido Biosciences, Inc., a Delaware corporation, and each of its Qualified Subsidiaries (as defined in the Loan Agreement) (hereinafter collectively referred to as the “Borrower”), the several banks and other financial institutions or entities from time to time parties to the Loan Agreement (collectively, referred to as the “Lenders”), and Hercules Capital, Inc., a Maryland corporation, in its capacity as administrative agent and collateral agent for itself and the Lenders (in such capacity, the “Agent”).
Pursuant to the provisions of Addendum 1 of the Loan Agreement, the undersigned hereby certifies that (i) it is the sole record and beneficial owner of the Loan(s) (as well as any promissory note(s) evidencing such Loan(s)) in respect of which it is providing this certificate, (ii) it is not a “bank” within the meaning of Section 881(c)(3)(A) of the Code, (iii) it is not a “ten percent shareholder” of the Borrower within the meaning of Section 871(h)(3)(B) of the Code and (iv) it is not a “controlled foreign corporation” related to the Borrower as described in Section 881(c)(3)(C) of the Code.
The undersigned has furnished the Agent and the Borrower with a certificate of its non-U.S. Person status on IRS Form W-8BEN or IRS Form W-8BEN-E. By executing this certificate, the undersigned agrees that (1) if the information provided in this certificate changes, or if a lapse in time or change in circumstances renders the information in this certificate obsolete, expired or inaccurate in any material respect, the undersigned shall promptly so inform the Borrower and the Agent in writing and deliver promptly to the Agent and the Borrower an updated certificate or other appropriate documentation (including any new documentation reasonably requested by the Agent or the Borrower) or promptly notify the Agent and the Borrower in writing of its legal ineligibility to do so, and (2) the undersigned shall have at all times furnished the Borrower and the Agent with a properly completed and currently effective certificate in either the calendar year in which each payment is to be made to the undersigned, or in either of the two calendar years preceding such payments.
Unless otherwise defined herein, terms defined in the Loan Agreement and used herein shall have the meanings given to them in the Loan Agreement.
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Date: , 20
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[NAME OF LENDER]
By: Name: Title:
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EXHIBIT H-2
FORM OF U.S. TAX COMPLIANCE CERTIFICATE
(For Foreign Participants That Are Not Partnerships For U.S. Federal Income Tax Purposes)
Reference is hereby made to the Loan and Security Agreement dated as of December 31, 2019 (as amended, supplemented or otherwise modified from time to time, the “Loan Agreement”) by and among Kaleido Biosciences, Inc., a Delaware corporation, and each of its Qualified Subsidiaries (as defined in the Loan Agreement) (hereinafter collectively referred to as the “Borrower”), the several banks and other financial institutions or entities from time to time parties to the Loan Agreement (collectively, referred to as the “Lenders”), and Hercules Capital, Inc., a Maryland corporation, in its capacity as administrative agent and collateral agent for itself and the Lenders (in such capacity, the “Agent”).
Pursuant to the provisions of Addendum 1 of the Loan Agreement, the undersigned hereby certifies that (i) it is the sole record and beneficial owner of the participation in respect of which it is providing this certificate, (ii) it is not a “bank” within the meaning of Section 881(c)(3)(A) of the Code,
(iii) it is not a “ten percent shareholder” of the Borrower within the meaning of Section 871(h)(3)(B) of the Code and (iv) it is not a “controlled foreign corporation” related to the Borrower as described in Section 881(c)(3)(C) of the Code.
The undersigned has furnished its participating Lender with a certificate of its non-U.S. Person status on IRS Form W-8BEN or IRS Form W-8BEN-E. By executing this certificate, the undersigned agrees that (1) if the information provided in this certificate changes, or if a lapse in time or change in circumstances renders the information in this certificate obsolete, expired or inaccurate in any material respect, the undersigned shall promptly so inform such Lender in writing and deliver promptly to such Lender an updated certificate or other appropriate documentation (including any new documentation reasonably requested by such Lender) or promptly notify such Lender in writing of its legal ineligibility to do so, and (2) the undersigned shall have at all times furnished such Lender with a properly completed and currently effective certificate in either the calendar year in which each payment is to be made to the undersigned, or in either of the two calendar years preceding such payments.
Unless otherwise defined herein, terms defined in the Loan Agreement and used herein shall have the meanings given to them in the Loan Agreement.
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Date: , 20
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[NAME OF PARTICIPANT]
By: Name: Title:
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EXHIBIT H-3
FORM OF U.S. TAX COMPLIANCE CERTIFICATE
(For Foreign Participants That Are Partnerships For U.S. Federal Income Tax Purposes)
Reference is hereby made to the Loan and Security Agreement dated as of December 31, 2019 (as amended, supplemented or otherwise modified from time to time, the “Loan Agreement”) by and among Kaleido Biosciences, Inc., a Delaware corporation, and each of its Qualified Subsidiaries (as defined in the Loan Agreement) (hereinafter collectively referred to as the “Borrower”), the several banks and other financial institutions or entities from time to time parties to the Loan Agreement (collectively, referred to as the “Lenders”), and Hercules Capital, Inc., a Maryland corporation, in its capacity as administrative agent and collateral agent for itself and the Lenders (in such capacity, the “Agent”).
Pursuant to the provisions of Addendum 1 of the Loan Agreement, the undersigned hereby certifies that (i) it is the sole record owner of the participation in respect of which it is providing this certificate, (ii) its direct or indirect partners/members are the sole beneficial owners of such participation,
(iii) with respect to such participation, neither the undersigned nor any of its direct or indirect partners/members is a “bank” extending credit pursuant to a loan agreement entered into in the ordinary course of its trade or business within the meaning of Section 881(c)(3)(A) of the Code, (iv) none of its direct or indirect partners/members is a “ten percent shareholder” of the Borrower within the meaning of Section 871(h)(3)(B) of the Code and (v) none of its direct or indirect partners/members is a “controlled foreign corporation” related to the Borrower as described in Section 881(c)(3)(C) of the Code.
The undersigned has furnished its participating Lender with IRS Form W-8IMY accompanied by one of the following forms from each of its partners/members that is claiming the portfolio interest exemption: (i) an IRS Form W-8BEN or IRS Form W-8BEN-E or (ii) an IRS Form W-8IMY accompanied by an IRS Form W-8BEN or IRS Form W-8BEN-E from each of such partner’s/member’s beneficial owners that is claiming the portfolio interest exemption. By executing this certificate, the undersigned agrees that (1) if the information provided in this certificate changes, or if a lapse in time or change in circumstances renders the information in this certificate obsolete, expired or inaccurate in any material respect, the undersigned shall promptly so inform such Lender in writing and deliver promptly to such Lender an updated certificate or other appropriate documentation (including any new documentation reasonably requested by the Borrower or the Agent) or promptly notify such Lender in writing of its legal ineligibility to do so, and (2) the undersigned shall have at all times furnished such Lender with a properly completed and currently effective certificate in either the calendar year in which each payment is to be made to the undersigned, or in either of the two calendar years preceding such payments.
Unless otherwise defined herein, terms defined in the Loan Agreement and used herein shall have the meanings given to them in the Loan Agreement.
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Date: , 20
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[NAME OF PARTICIPANT]
By: Name: Title:
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ACTIVE/116115708.1
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EXHIBIT H-4
FORM OF U.S. TAX COMPLIANCE CERTIFICATE
(For Foreign Lenders That Are Partnerships For U.S. Federal Income Tax Purposes)
Reference is hereby made to the Loan and Security Agreement dated as of December 31, 2019 (as amended, supplemented or otherwise modified from time to time, the “Loan Agreement”) by and among Kaleido Biosciences, Inc., a Delaware corporation, and each of its Qualified Subsidiaries (as defined in the Loan Agreement) (hereinafter collectively referred to as the “Borrower”), the several banks and other financial institutions or entities from time to time parties to the Loan Agreement (collectively, referred to as the “Lenders”), and Hercules Capital, Inc., a Maryland corporation, in its capacity as administrative agent and collateral agent for itself and the Lenders (in such capacity, the “Agent”).
Pursuant to the provisions of Addendum 1 of the Loan Agreement, the undersigned hereby certifies that (i) it is the sole record owner of the Loan(s) (as well as any promissory note(s) evidencing such Loan(s)) in respect of which it is providing this certificate, (ii) its direct or indirect partners/members are the sole beneficial owners of such Loan(s) (as well as any promissory note(s) evidencing such Loan(s)),
(iii) with respect to the extension of credit pursuant to this Loan Agreement or any other Loan Document, neither the undersigned nor any of its direct or indirect partners/members is a “bank” extending credit pursuant to a loan agreement entered into in the ordinary course of its trade or business within the meaning of Section 881(c)(3)(A) of the Code, (iv) none of its direct or indirect partners/members is a “ten percent shareholder” of the Borrower within the meaning of Section 871(h)(3)(B) of the Code and (v) none of its direct or indirect partners/members is a “controlled foreign corporation” related to the Borrower as described in Section 881(c)(3)(C) of the Code.
The undersigned has furnished the Agent and the Borrower with IRS Form W-8IMY accompanied by one of the following forms from each of its partners/members that is claiming the portfolio interest exemption: (i) an IRS Form W-8BEN or IRS Form W-8BEN-E or (ii) an IRS Form W-8IMY accompanied by an IRS Form W-8BEN or IRS Form W-8BEN-E from each of such partner’s/member’s beneficial owners that is claiming the portfolio interest exemption. By executing this certificate, the undersigned agrees that (1) if the information provided in this certificate changes, or if a lapse in time or change in circumstances renders the information in this certificate obsolete, expired or inaccurate in any material respect, the undersigned shall promptly so inform the Borrower and the Agent in writing and deliver promptly to the Borrower and the Agent an updated certificate or other appropriate documentation (including any new documentation reasonably requested by the Borrower or the Agent) or promptly notify the Borrower and the Agent in writing of its legal ineligibility to do so, and (2) the undersigned shall have at all times furnished the Borrower and the Agent with a properly completed and currently effective certificate in either the calendar year in which each payment is to be made to the undersigned, or in either of the two calendar years preceding such payments.
Unless otherwise defined herein, terms defined in the Loan Agreement and used herein shall have the meanings given to them in the Loan Agreement.
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Date: , 20
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[NAME OF LENDER]
By: Name: Title:
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SCHEDULE 1.1
COMMITMENTS
LENDER |
TRANCHE |
TERM COMMITMENT |
Hercules Funding IV LLC |
Tranche 1 |
$22,500,000 |
Hercules Capital, Inc. |
Tranche 2 |
$5,000,000* |
Hercules Capital, Inc. |
Tranche 3 |
$12,500,000* |
[Hercules Capital, Inc.] |
Tranche 4 |
$1,700,000 |
TOTAL COMMITMENTS |
|
$41,700,000.00 |
* Expired unfunded.
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SCHEDULE 1
SUBSIDIARIES
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SCHEDULE 1A
EXISTING PERMITTED INDEBTEDNESS
Agreement |
Date |
Description of Indebtedness |
Letter of Credit |
September 24, 2019, as may be replaced to reflect correction of proper beneficiary (subject to the limitations set forth in clause (viii) of the definition of Permitted Indebtedness) |
Letter of Credit with Square 1 Bank issued in connection with the security deposit requirement under the lease for space at 00 Xxxxxx Xxxxx, Xxxxxxx XX in the amount of $117,156.33 |
Letter of Credit |
December 16, 2019 |
Letter of Credit with JPMorgan Chase Bank, N.A. issued in connection with the security deposit requirement under the lease for space at 00 Xxxxxx Xxxxxx, Xxxxxxxxx MA in the amount of $2,057,658.75 |
Line of Credit |
Kaleido’s American Express account went effective on October 1, 2018. |
Line of Credit with American Express issued in connection with the Company’s corporate credit card program in the amount of $1,000,000.00; provided that the amount of any thereunder Indebtedness, together with any other credit card Indebtedness, shall not exceed the cap set forth in clause (iv) of the definition of Permitted Indebtedness |
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SCHEDULE 1B
EXISTING PERMITTED INVESTMENTS
Investments held by Kaleido Biosciences, Inc. of 1,000 shares of common stock of Xxxxxx Bio, Inc., par value $0.001.
Investments held by Kaleido Biosciences, Inc. of 1,000 shares of common stock of Kaleido Biosciences Securities Corporation, par value $0.001.
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SCHEDULE 1C EXISTING PERMITTED LIENS
Name of Holder of Lien/Encumbrance |
Description of Property Encumbered |
Company/Subsidiary |
De Xxxx Xxxxxx Financial Services, Inc. |
Lien of De Xxxx Xxxxxx Financial Services, Inc. on a leased asset of Kaleido Biosciences, Inc. |
Kaleido Biosciences, Inc. |
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SCHEDULE 5.3
CONSENTS, ETC.
None.
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SCHEDULE 5.8
TAX MATTERS
None.
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SCHEDULE 5.9
INTELLECTUAL PROPERTY CLAIMS
None.
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SCHEDULE 5.10
INTELLECTUAL PROPERTY
None.
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SCHEDULE 5.11
BORROWER PRODUCTS
None.
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SCHEDULE 5.14
CAPITALIZATION
(See Attached)
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SCHEDULE 7.12
DEPOSIT ACCOUNTS
[****]
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ANNEX B
[***]
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