CERTAIN IDENTIFIED INFORMATION HAS BEEN EXCLUDED FROM THIS EXHIBIT BECAUSE IT IS NOT MATERIAL AND WOULD LIKELY CAUSE COMPETITIVE HARM TO THE REGISTRANT IF PUBLICLY DISCLOSED. THE OMISSIONS HAVE BEEN INDICATED BY “[***].” JOINDER AND WAIVER AGREEMENT
Exhibit 10.37
CERTAIN IDENTIFIED INFORMATION HAS BEEN EXCLUDED FROM THIS EXHIBIT BECAUSE IT IS NOT MATERIAL AND WOULD LIKELY CAUSE COMPETITIVE HARM TO THE REGISTRANT IF PUBLICLY DISCLOSED. THE OMISSIONS HAVE BEEN INDICATED BY “[***].”
This JOINDER AND WAIVER AGREEMENT, dated as of October 31, 2022 (this “Joinder Agreement”), is entered into by and among Phathom Pharmaceuticals, Inc., a Delaware corporation (the “Company”), Hercules Capital, Inc. in its capacity as administrative agent and collateral agent for itself and the Lenders (as defined in the Hercules Loan Agreement) (the “Agent”), the Required Lenders (as defined in the Hercules Loan Agreement), CO Finance LVS XXXVII LLC, a Delaware limited liability company (the “Additional Investor”), and the other entities set forth on the signature pages hereto (the “Initial Investors”). All capitalized terms used but not defined herein shall have the respective meanings ascribed to them in the Financing Agreement (as defined below).
WHEREAS, the Company and the Initial Investors are parties to that certain Revenue Interest Financing Agreement, dated as of May 3, 2022 (as may be amended, supplemented or otherwise modified from time to time, the “Financing Agreement”);
WHEREAS, the Company, the Initial Investors and the Agent entered into that certain Subordination Agreement, dated as of May 3, 2022 (as may be amended, supplemented or otherwise modified from time to time, the “Subordination Agreement”);
WHEREAS, pursuant to Sections 2.1(b)(ii) and 2.1(c) of the Financing Agreement, the Company has the right to seek written commitments from a third party for an Additional Regulatory Milestone Payment in an amount up to $15,000,000 and a Sales Milestone Payment in an amount up to $25,000,000;
WHEREAS, the Additional Investor desires to commit to provide an Additional Regulatory Milestone Payment in an amount equal to $15,000,000 and a Sales Milestone Payment in an amount equal to $25,000,000, each payable in accordance with the terms and conditions set forth in the Financing Agreement;
WHEREAS, Section 2.1(b)(ii) of the Financing Agreement provides that before obtaining a written commitment from a third party for an Additional Regulatory Milestone Payment, the Company shall first grant the Initial Investors the right to extend commitments for the Additional Regulatory Milestone Payment (the “Regulatory Milestone Payment Option”) by delivering to the Initial Investors a written notice of such intended transaction with the Additional Regulatory Milestone Investor;
WHEREAS, Section 2.1(c) of the Financing Agreement provides that before obtaining a written commitment from a third party for an Additional Sales Milestone Payment, the Company shall first grant the Initial Investors the right to extend commitments for the Sales Milestone Payment (the “Sales Milestone Payment Option”) by delivering to the Initial Investors a written notice of such intended transaction with the Additional Sales Milestone Investor;
WHEREAS, the Initial Investors wish to waive their rights in connection with the Regulatory Milestone Payment Option and the Sales Milestone Payment Option; and
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WHEREAS, the Additional Investor is willing to subordinate (i) all of Company’s indebtedness and obligations to the Additional Investor under the Financing Agreement, whether presently existing or arising in the future, to all of Company’s indebtedness and obligations to Agent and the Lenders (as defined in the Hercules Loan Agreement), and (ii) all of Additional Investor’s security interests, if any were to arise, in Company’s property (other than the Revenue Interest Collateral), to all of the Agent’s security interests in the same, in each case in the circumstances and on the terms set forth in the Subordination Agreement.
NOW, THEREFORE, for good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the Company, the Additional Investor and the Initial Investors agree as follows:
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CO Finance LVS XXXVII LLC
[***]
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Exhibit 10.37
CERTAIN IDENTIFIED INFORMATION HAS BEEN EXCLUDED FROM THIS EXHIBIT BECAUSE IT IS NOT MATERIAL AND WOULD LIKELY CAUSE COMPETITIVE HARM TO THE REGISTRANT IF PUBLICLY DISCLOSED. THE OMISSIONS HAVE BEEN INDICATED BY “[***].”
IN WITNESS WHEREOF, the undersigned have caused this Joinder Agreement to be duly executed and delivered as of the date first above written.
COMPANY:
By: /s/ Xxxxxx Xxxxxx
Name: Xxxxxx Xxxxxx
Title: President and Chief Executive Officer
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Exhibit 10.37
CERTAIN IDENTIFIED INFORMATION HAS BEEN EXCLUDED FROM THIS EXHIBIT BECAUSE IT IS NOT MATERIAL AND WOULD LIKELY CAUSE COMPETITIVE HARM TO THE REGISTRANT IF PUBLICLY DISCLOSED. THE OMISSIONS HAVE BEEN INDICATED BY “[***].”
ADDITIONAL INVESTOR:
CO FINANCE LVS XXXVII LLC, a Delaware limited liability company
By: /s/
Name: [***]
Title: Authorized Person
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Exhibit 10.37
CERTAIN IDENTIFIED INFORMATION HAS BEEN EXCLUDED FROM THIS EXHIBIT BECAUSE IT IS NOT MATERIAL AND WOULD LIKELY CAUSE COMPETITIVE HARM TO THE REGISTRANT IF PUBLICLY DISCLOSED. THE OMISSIONS HAVE BEEN INDICATED BY “[***].”
INITIAL INVESTORS:
NQ PROJECT PHARAOH, L.P.
By: NQ POF V GP, Ltd., its general partner
By: /s/
Name: [***] Title: Director
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Exhibit 10.37
CERTAIN IDENTIFIED INFORMATION HAS BEEN EXCLUDED FROM THIS EXHIBIT BECAUSE IT IS NOT MATERIAL AND WOULD LIKELY CAUSE COMPETITIVE HARM TO THE REGISTRANT IF PUBLICLY DISCLOSED. THE OMISSIONS HAVE BEEN INDICATED BY “[***].”
INITIAL INVESTORS:
SAGARD HEALTHCARE PARTNERS (DELAWARE), LP
By: Sagard Healthcare Royalty Partners GP LLC, its general partner
By: /s/
Name: [***] Title: Manager
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Exhibit 10.37
CERTAIN IDENTIFIED INFORMATION HAS BEEN EXCLUDED FROM THIS EXHIBIT BECAUSE IT IS NOT MATERIAL AND WOULD LIKELY CAUSE COMPETITIVE HARM TO THE REGISTRANT IF PUBLICLY DISCLOSED. THE OMISSIONS HAVE BEEN INDICATED BY “[***].”
INITIAL INVESTORS:
HERCULES CAPITAL, INC.
By: /s/
Name: [***]
Title: Chief Financial Officer
HERCULES PRIVATE GLOBAL VENTURE GROWTH FUND I L.P.
By: Hercules Adviser LLC, its Investment Adviser
By: /s/
Name: [***]
Title: Authorized Signatory
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AGENT:
HERCULES CAPITAL, INC.
By: /s/
Name: [***]
Title: Chief Financial Officer
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REQUIRED LENDERS:
HERCULES FUNDING IV LLC
By: /s/
Name: [***]
Title: Chief Financial Officer
HERCULES CAPITAL IV, L.P.
By: Hercules Technology SBIC Management, LLC, its General Partner
By: Hercules Capital, Inc., its Manager
By: /s/
Name: [***]
Title: Chief Financial Officer
HERCULES PRIVATE CREDIT FUND 1 L.P.
By: Hercules Adviser LLC, its Investment Adviser
By: /s/
Name: [***]
Title: Authorized Signatory
HERCULES PRIVATE GLOBAL VENTURE GROWTH FUND I L.P.
By: Hercules Private Global Venture Growth Fund GP I LLC, its general partner
By: Hercules Adviser LLC, its sole member
By: /s/
Name: [***]
Title: Chief Financial Officer
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