PARTICIPATION AGREEMENT
THIS
PARTICIPATION AGREEMENT (this “Agreement”), dated as of December 30, 2009, is
made by and among Cleveland
BioLabs, Inc., a Delaware corporation (“CBL”), registered on June 5th, 2003,
registration number 3666863, tax identification number ▇▇-▇▇▇▇▇▇▇, located at
the address 73 High Street, Buffalo, NY, USA 14203) represented by ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, CEO, and Bioprocess CapitalPartners,
LLC, a management company of the venture fund Bioprocess Capital
Ventures, a company registered on October 6th, 2006
under the laws of the Russian Federation (“BCP”), registration number
5067746956052, located at the address 6 Stolovyi Pereulok, ▇▇▇▇. ▇, ▇▇▇▇▇▇,
▇▇▇▇▇▇ ▇▇▇▇▇▇, represented by ▇▇▇▇▇▇▇▇ Tezov, General Director. CBL
and BCP are sometimes referred to individually as an “Participant” and
collectively as “Participants.”
A. CBL
and BCP have formed Incuron, LLC, a limited liability company organized under
the laws of the Russian Federation (the “Company”), for the purpose of
developing drugs to be used for medical applications with the intellectual
property constituting the CBL Contribution and derivative works thereof (the
“Business”).
B. In
connection with the formation of the (“Company”), CBL and BCP shall make their
initial contributions of 5,000 Rubles each resulting in the initial charter
capital of the Company being 10,000 Rubles.
C. In
connection with a further charter capital increase of the Company, CBL shall
contribute the intellectual property described in Exhibit A attached hereto (the
“Contributed IP”) to the charter capital of the Company (the “CBL
Contribution”).
D. In
connection with the formation of the Company, CBL and the Company shall enter
into the Development Agreement, pursuant to which CBL shall perform certain
development services to the Company at cost.
E. In
connection with the formation of the Company and further increase of the charter
capital, BCP shall make a capital contribution to the Company in accordance with
the provisions of Section 2.1(b) hereof (the “BCP Contribution”).
F. In
return for the CBL Contribution and the BCP Contribution, CBL and BCP will
acquire the Participation Interests in the Company’s charter capital as
described in Sections 2.1(b) and (c) hereof.
G. CBL
and BCP have agreed to enter into this Agreement to set forth certain
agreements, covenants, terms and conditions with regard to the operation and
management of the Company after its registration.
1. DEFINITIONS
The
following terms when used in this Agreement shall have the following respective
meanings:
“Accounting
Statements” has the meaning set forth in Section 5(a).
“Affiliate”
means, with respect to any Person, any other Person which directly or indirectly
controls, is controlled by, or is under common control with such
Person. A Person shall be deemed to control another Person if such
Person possesses, directly or indirectly, the power to direct or cause the
direction of the management and policies of the “controlled” Person, whether
through ownership of voting securities, by contract, or otherwise.
“Agreement”
has the meaning set forth in the introductory paragraph.
“BCP
Contribution” has the meaning set forth in
the recitals to this Agreement.
“Board”
means the Board of Directors of the Company.
“Bona
Fide Offer” means an offer received by a Participant from a Bona Fide Third Party to purchase all or any
portion of the Participation Interests owned by such Participant, which offer shall specify, in reasonable
detail, the material terms thereof
including, without limitation, the name and
address of the Bona Fide Third
Party, the purchase price and other terms
and conditions of payment (or the basis for determining the purchase price and
other terms and conditions), the date on or about which such sale is to be
consummated and the number of Participation
Interests to be sold.
“Bona Fide Third
Party” means a financially responsible Person who is not an Affiliate
of either Participant.
“Business”
has the meaning set forth in the recitals to this Agreement.
“Business
Day” means a day other than a Saturday, Sunday or statutory holiday in the
Russian Federation and in the event that any action to be taken hereunder falls
on a day which is not a Business Day, then such action shall be taken on the
next succeeding Business Day.
“Business
Plan” shall mean a detailed business plan for the Company for each fiscal
year setting forth a detailed budget for the Company for such fiscal
year.
“Buy-Sell
Notice” has the meaning set forth in Section 3.6(b).
“CBL
Contribution” has the meaning set forth in the recitals to this
Agreement.
“Contributed
IP” has the meaning set forth in the recitals to
this Agreement.
“Company”
has the meaning set forth in the introductory paragraph to this
Agreement.
“Deadlock
Event” shall mean (i) the absence of a quorum at three successive meetings of
the Board; (ii) if a Supermajority Decision is raised for consideration at three
meetings of the Board and is not approved at any such meeting; (iii) the absence
of a quorum at three successive General Meetings; or (iv) if an issue requiring
approval of the Participants is raised for consideration at three General
Meetings and is not approved at any such meeting.
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“Deadlock
Negotiation Period” has the meaning set forth in Section 3.6(a).
“Development
Agreement” shall mean that certain Development Agreement dated as of the date
hereof by and between CBL and the Company, a copy of which is attached hereto as
Exhibit C.
“Dispute”
has the meaning set forth in Section 7.10.
“Electing
Participant” has the meaning set forth in Section 3.6(b).
“Election
Period” has the meaning set forth in Section 3.6(c).
“First
Milestone” has the meaning set forth in Section 2.2(f).
“First
Milestone Payment” has the meaning set forth in Section 2.2(b)(i).
“General
Meeting” means a general meeting of the Participants.
“Milestone
Payment” means the First Milestone Payment
or the Second Milestone Payment, as the case may be.
“Offered
Participation Interests” has the meaning set forth in Section
4.4(a).
“Participant
First Refusal Period” has the meaning set forth in Section 4.4(b).
“Participants”
has the meaning set forth in the introductory paragraph to this
Agreement.
“Participant’s
Offer” means an irrevocable offer to sell Participation Interests to the Company
and the Remaining Participant at a purchase
price and on payment terms which
shall be no less favorable than those specified in
the Bona Fide Offer.
“Participation
Interests” means the Participation Interests in the charter capital of the
Company.
“Participation
Notice” has the meaning set forth in Section 4.5(b).
“Payment
Default” has the meaning set forth in Section 2.2(i).
“Person”
means an individual, corporation, partnership, joint venture, trust, or
unincorporated organization.
“Phase I
Approvals” has the meaning set forth in Section 2.2(g).
“Purchase
Price” shall mean the purchase price for the Participation Interests set forth
in the applicable Bona Fide Offer.
“Remaining
Participant” has the meaning set forth in Section 4.4(a).
“▇▇▇▇▇” means the lawful currency of the Russian
Federation.
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“▇▇▇▇▇ Equivalent” means
the ▇▇▇▇▇ equivalent of the applicable USD amount as derived from the official
exchange rate of the Central Bank of Russia as of the date of the applicable
transaction.
“Second
Milestone Payment” has the meaning set forth in Section 2.2(b)(ii).
“Supermajority
Decision” has the meaning set forth in Section 3.2(b).
“Tag-Along
Right” has the meaning set forth in Section 4.5(a).
“Transfer”
or “Transferring” means any sale, assignment, pledge, hypothecation,
encumbrance, disposition, transfer (including, without limitation, a transfer by
will or intestate distribution), gift or attempt to create or grant a security
interest in Participation Interests, whether voluntary, involuntary, by
operation of law or otherwise.
“Transferring
Participant” has the meaning set forth in Section 4.4(a).
“USD” means dollars, the lawful currency of the United States
of America.
2.1 Capital Contributions upon
the first increase of charter capital.
(a) The
Company’s charter capital after its increase by Participants’ contributions shall be 725 470 thousand Rubles
divided into Participation Interests as indicated in this Section
2.1.
(b) BCP
shall be the owner of Participation Interests representing 24.20% of the
Company's charter capital with a nominal value of 175 570 thousand Rubles in
consideration for a contribution in the
amount of 175 570 thousand Rubles by transfer of such amount to the Company
before the moment of registration of the charter capital increase in
the Russian tax agency.
(c) In
consideration for the contribution of the Contributed IP, CBL shall be the owner
of Participation Interests representing 75.80% of the Company's charter capital
with a nominal value of 549 900 thousand Rubles. The value of the
Contributed IP has been appraised by an independent
appraiser.
(a) The
Participants agree that the charter capital of the Company shall be further
increased as described in this Section
2.2.
(b) BCP
shall contribute an additional amount equal, in the aggregate, to 373 927
thousand Rubles, in two tranches at the times and in the amounts set forth
below:
(i) A
first tranche in the amount of 192 737 thousand Rubles shall be made within
sixty (60) Business Days of the achievement of the First Milestone (the “First
Milestone Payment”); and
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(ii) A
second tranche in the amount of 181 190 thousand Rubles shall be made within
sixty (60) Business Days of the achievement of the Second Milestone (the “Second
Milestone Payment”). The second tranche may be made only after the first tranche
has been made.
(c) Within
thirty (30) days after the First and Second Milestone Payments the
Participants agree and undertake to adopt the General Meeting’s decisions on
confirmation of the results of the additional contributions and on the
appropriate amendments to the Company’s charter.
(d) After
the contributions have been made, the nominal value of the Participation
Interests of BCP will be increased by the respective amount of all of its
contributions into the Company’s charter capital.
(e) Time
is of the essence with regard to the Milestone Payments to be made pursuant to
this Section 2.2.
(f) For
purposes hereof, “First Milestone” shall mean
(i) the
completion of the preclinical studies and receipt of the Phase I Approvals to
begin clinical trials on oncology patients with the Curaxin compound CBLC137, or
any other lead Curaxin compound; or
(ii) the
completion of the “proof-of-principle” characterization of the clinical
efficacy of the compound CBLC 102 in at least 10 oncology patients.
(g) For
purposes hereof, “Phase I Approvals” shall mean:
(i) when
a United States Food and Drug Administration (“FDA”) Form FDA 1571
Investigational New Drug Application goes into effect pursuant to 21 C.F.R.
312.40(b); and
(ii) when
a letter of approval is received from the Institutional Review Board of the
clinical center where the Phase I trial is to be conducted, indicating approval
of the Phase I protocol and permission to commence the Phase I
trial.
(h) For
purposes hereof, “Second Milestone” shall mean:
(i) (A)
when the Phase II protocol is submitted to the FDA and (B) when a letter of
approval is received from the Institutional Review Board of the clinical center
(including those in the Russian Federation) where the Phase II trial is to be
conducted, indicating approval of the Phase II protocol and permission to
commence the Phase II trial; or
(ii) the
achievement of the clinical end-point in the Phase II trial (as described in the
trial protocol) for compound CBLC 102.
(i) In
the event that BCP fails to make a
Milestone Payment when due (a “Payment Default”):
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(i) each Participant shall take all necessary actions,
including executing an amendment to this Agreement, voting all of its respective
Participation Interests and/or executing proxies or written consents, as the
case may be, in order to ensure
that this Agreement and, if
necessary, the Company’s charter, shall be amended to remove any provisions requiring unanimous approval of the Participants
or approval
by Supermajority Decision, in each case
except as required by the mandatory provisions of Russian law; and
(ii) the
Participants agree to call and hold an
extraordinary General Meeting (or execute a
written consent) as soon as practicable but in any event within twenty
(20) days of the Payment Default, and shall within
such twenty (20) day period take such other
actions as shall be necessary to effectuate the provisions of Section
2.2(i)(i).
2.3 Third-Party
Funding. CBL agrees to use commercially reasonable efforts to
secure third-party grants and funding to support clinical development, research
and operations of the Company.
2.4 Research Investigation
Plans. Part of the first and second tranches of capital
contribution by BCP in the amounts defined in the business plan and subject to
Board approval (currently 69 425 thousand rubles), will be spent on extended
research investigation of curaxins and their analogs in the area of
oncology. The research plan includes, but is not limited to, items
outlined in Exhibit D (Proposed Research
Program). These research studies
will be subcontracted by the Company
to CBL in accordance with the procedures
set forth in the Development Agreement.
3. GOVERNANCE
3.1 Board of
Directors.
(a) The
Company shall be managed by a Board of Directors (the “Board”).
(b) The
Board of Directors shall consist of five (5) directors, comprised as
follows:
(i) three
(3) directors nominated by CBL; and
(ii) two
(2) directors nominated by BCP.
(c) The
directors so nominated pursuant to Section 3.1(b)(i) and Section 3.1(b)(ii) from
time to time and elected pursuant to Section 3.5(a)(iii) shall be set forth in
the minutes of the General Meeting.
(d) The
initial nominees of CBL shall be ▇▇. ▇▇▇▇▇▇, ▇▇. ▇▇▇▇▇▇▇▇ and ▇▇.
▇▇▇▇▇. The initial nominees of BCP shall be Mr. Mogutov and Mr.
Tezov. Mr. Mogutov shall be the chairman of the Board and, in the
event when a meeting of the Board is attended by only four (4) of its members,
then the parties hereby agree that Mr. Mogutov shall have the deciding vote in
the event of any tie.
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(e) Each
Participant agrees that, if at any time it is entitled to vote for the election
of directors to the Board, it shall vote all of its Participation Interests or
execute proxies or written consents, as the case may be, and take all other
necessary action (including causing call of an extraordinary General Meeting) in
order to ensure that the composition of the Board is as set forth in Section
3.1(b).
(f) If,
as a result of the death, retirement, resignation or, subject to the other
provisions of this Section 3.1, removal of a nominee to the Board, there shall
exist or occur any vacancy on the Board, the Participant entitled to nominate
such director pursuant to Section 3.1(b) shall have the power to nominate a
person to fill such vacancy, whereupon each of the Participants agree to take
such action as is necessary to promptly elect such person to fill such vacancy
(including, if necessary, causing call of an extraordinary General Meeting (or
effecting a written consent in lieu thereof) and voting all Participation
Interests or execute proxies or written consents to accomplish such
result).
(g) A
member of the Board may resign at any time. A member of the Board may
be removed at any time for any reason or no reason upon the decision of the
General Meeting, and the Participants agree, upon an instruction to remove a
member by the Participant that nominated such member, to undertake and adopt a
decision of the General Meeting to effectuate such removal. If any
Participant entitled to nominate any members of the Board requests that any of
such Participant’s respective nominees be removed as a member of the Board, each
of the Participants shall vote all of its Participation Interests or execute
proxies or written consents, as the case may be, and take all other necessary
action, to remove such member of the Board. Each Participant agrees
that it shall not vote any of its Participation Interests in favor of, or take
any other action related to, the removal of any nominee who shall have been
nominated for election to the Board by a Participant pursuant to this Section
3.1 unless the Participant entitled to nominate such member of the Board shall
have consented to such removal in writing.
(h) The
Board shall meet quarterly or more frequently as the Board may determine from
time to time. Any member of the Board may call a meeting upon ten
(10) Business Days’ written notice to each other member of the Board (which
notice may be given by electronic mail or fax). Meetings of the Board
may be held in person or by telephone, video conference or any other medium in
which the Board members may hear each other. A Board member
participating in the meeting via telephone, video conference or other electronic
medium, shall forward his written confirmation of his/her vote to the other Board members immediately after the
completion of the meeting. The
Participants shall procure that the Company shall reimburse all
reasonable out-of-pocket expenses incurred by the members of the Board in
connection with traveling to and from and attending meetings of the Board and
while conducting business at the request of the Company. The
compensation, if any, of the members of the Board shall be determined from time
to time by the General Meeting. Any officer of the Company who is
also a member of the Board may also receive compensation from the Company for
his or her services as an officer.
(i) The
presence of two (2) directors nominated by CBL and two (2) directors nominated
by BCP shall be required for the taking of any action by the
Board. In exercising its powers under Section 3.2(a), the Board shall
act by the vote of a majority of the directors
present.
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3.2 Powers of the
Board.
(a) Subject
to the provisions of Section 3.3 hereof, the Board shall have sole and complete
authority to manage, control and make all decisions affecting the Business and assets of the Company, save for
decisions and other actions that shall be within the authority of the General
Meeting, General Director and the Management Committee, and, without limiting
the generality of the foregoing, shall have the power to:
(i)
appoint or remove members of the Management Committee and set their
compensation packages (excluding the General Director, whose appointment or
removal shall be a Supermajority Decision) and approve the appointment or
removal of other senior management of the Company and their compensation
packages;
(ii)
approve any contracts with any Persons for the development, operation and
management of any assets of the
Company, in each case the value of which is greater than the ▇▇▇▇▇
Equivalent of 250 000 USD, but not to exceed twenty
five percent (25%) of the total asset value
of the Company as determined from the
Company’s most recent Accounting Statements prior
to the date of the applicable transaction.
(iii)
create or invest in one or more subsidiary entities; acquire, finance, dispose
of, or otherwise deal with securities of any kind or nature;
(iv)
establishing any bonus compensation and/or bonus plans for the Company’s
employees, save for the members of the Board;
(v)
decide on acceptance of a Participant’s
Offer or refusal thereof on behalf of the Company in accordance with Section 4.4
hereof; and
(vi)
decide on other matters as set forth in the
Company’s charter.
The Board
shall have such additional rights, authority and powers conferred by law as are
necessary, convenient or appropriate for
the management and operation of the Company’s Business and as are consistent with the purposes
of the Company. Except as otherwise provided herein, the Board shall
have no duty or obligation to consult with or seek the advice of the
Participants in connection with the conduct of the Business of the Company.
(b) Notwithstanding
the foregoing, the consent of eighty percent (80%) of the members of the Board
shall be required to approve (collectively, (i) through (x) below are hereinafter referred to as the
“Supermajority Decisions”):
(i)
appointment or removal of the General Director or the Deputy General
Director of the Company;
(ii)
approval of the Business Plan and any amendments thereto;
(iii) any
deviation from an approved Business Plan as determined pursuant to quarterly
reviews;
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(iv)
approval of a detailed budget (monthly) based on an approved Business
Plan;
(v)
establishing any bonus compensation plans for the members of the Management
Committee;
(vi)
strategic decisions affecting a substantial part of the Business of the Company not provided for in the
Business Plan, including any transaction outside the ordinary course of business
which is expected to result in an increase
in operating costs greater than the ▇▇▇▇▇
Equivalent of 250 000 USD, whether in one transaction or in a
series of related transactions, but not to exceed twenty five percent (25%) of
the total asset value of the Company as
determined from the Company’s most recent Accounting Statements prior to the date of
the applicable transaction.
(vii) any
decision relating to capital investments by, or the financing of, the Company
not provided for in the Business Plan, including the provision or incurrence of
indebtedness or the provision of any guarantee, in each case with a value in
excess of the ▇▇▇▇▇ Equivalent of 500,000
USD whether in one transaction or in a series of related transactions, but not
to exceed twenty five percent (25%) of the
total asset value of the Company as determined from the Company’s most recent Accounting Statements prior to the date of
the applicable transaction.
(viii)
the acquisition, disposition or encumbrance of any assets of the Company not
provided for in the Business Plan with a value in excess of the ▇▇▇▇▇ Equivalent of 250,000 USD, but not to
exceed twenty five percent (25%) of the
total asset value of the Company as determined from the Company’s most recent Accounting Statements prior to the date of the applicable
transaction.
(ix) any
action involving the transfer of the intellectual property rights of the
Company, but not to exceed twenty five percent (25%) of the total asset value of the Company as determined from the Company’s most recent Accounting Statements prior to the date of
the applicable transaction, including, without limitation:
A.
disposal of patents and granting of licenses to use the Company’s inventions in
accordance with existing patents;
B. sale
(transfer) of intellectual property items which qualify for know -how protection; granting of licenses to use
know-how items; and
C.
execution of any agreement with a third party (a “Client”) for the performance
of research, research/development and development works, which is subject to a
transfer of rights to intellectual property items originating from the
performance of such agreements to the Client or subject to the possession of
such works jointly with the Client in any form;
(x) decisions on other matters as set in the
Company’s charter.
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3.3 Limitation on the
Board’s
Authority. The Board shall have no authority to knowingly take
any action which is in contravention of this Agreement, Company’s charter or
which would make it impossible to carry out the Company’s purposes.
3.4 Management
Committee.
(a) The Board
shall appoint and supervise a Management Committee, comprised of the General
Director and Chief Financial Officer of the Company. In the event that the
Company does not have a Chief Financial Officer, their duties shall be performed
by the Deputy General Director.
(b) The
Management Committee shall prepare and present to the Board for approval on or
prior to January 15th of each year an annual Business Plan for the
Company
(c) The Management Committee shall supervise the
day-to-day operations of the Company and the executive officers of the
Company subject to any limitations imposed by the
Board, the charter of the Company or this Agreement.
(d) The
Participants hereby agree to ensure appointment of the following persons to the
offices set forth opposite their respective names:
▇▇▇▇▇
▇▇▇▇▇▇▇▇ General
Director
▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ Deputy
General Director
(e) A member of
the Management Committee may resign at any time by giving written notice to the Board. Such
notice shall be effective in accordance with Labor law of Russian Federation
when received by the Board, unless some other time is specified
therein.
(f) The General
Director shall be the chief executive officer of the Company, and shall manage
the day-to-day operations of the Company.
3.5 Participants.
(a) Notwithstanding
anything to the contrary in the foregoing, the following actions shall require
the unanimous approval of the Participants at a General Meeting:
(i)
determining the Company's principal activity areas and adopting decisions on
participation in associations and other alliances (or unions) of business
entities.
(ii)
amending the Company's charter, including altering the value of the Company's
charter capital and approving restated versions of the charter;
(iii)
election and early termination of the powers of the members of the Board (either
any of them or all);
(iv)
distribution of the Company's net profits to the Participants of the
Company;
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(v) the
payment of fees to members of the Board and/or on the reimbursement of any
expenses of a member of the Board, and the approval of the rates of such fees
and reimbursable expenses;
(vi)
approval (adoption) of documents which govern the Company's internal activities
(internal documents of the Company);
(vii)
adoption of decisions on the distribution of bonds and other issue-grade
securities by the Company;
(viii)
adoption of a decision on the reorganization or liquidation of the
Company;
(ix)
adoption of decisions on the admission of new Participants into the
Company;
(x)
appointment of a liquidation commission and approval of liquidation balance
sheets;
(xi)
appointment and removal of the auditors of the Company;
(xii)
appointment and removal of the revision committee of the Company;
(xiii)
such other matters as required by the Company’s charter, federal laws and other
legal acts of the Russian Federation to be approved by the General
Meeting.
(b) The
presence in person or by proxy of a representative of CBL and BCP shall be
required for the taking of any action at a General Meeting. At any
meeting, any action shall require the unanimous approval of CBL and
BCP.
(c) Any
Participant may demand the General Director to call a General Meeting of
Participants. In such case the General Meeting should be called by providing
twenty (20) days prior written notice, or a notice by electronic mail or fax.
General Meetings may be held in person or by telephone, video conference or any
other medium that ensures the authenticity of the messages transmitted and
received and provides for a documented record of such messages. In this
case, the party participating in the
meeting via telephone, videoconferencing or other means of communication must
immediately after the meeting send the Company and the other Participant
written
confirmation of his vote on the meeting's agenda. A General
Meeting of Participants may be held
without holding an actual meeting (joint attendance of Participants to discuss
the agenda and decisions on matters put to the vote) by absentee voting (by
poll). Such a vote may be held by exchanging documents by post, telegraph,
telex, electronic or other
communication that ensures the authenticity of data sent and received and their
documentary evidence.
3.6 Deadlock.
(a) In
the event of a Deadlock Event, CBL and BCP shall negotiate in good faith for a
thirty (30) day period (the “Deadlock Negotiation Period”) to resolve such
Deadlock Event.
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(b) In
the event that CBL and BCP are unable to amicably settle the Deadlock Event
during the Deadlock Negotiation Period, then each of CBL and BCP shall have the
right to provide a written notice (the “Buy-Sell Notice,” the party providing
such notice the “Offering Participant” and the party receiving such notice the
“Electing Participant”) offering to, at the election of the Electing
Participant, purchase all of the Electing Participant’s Participation Interests
or sell all of the Offering Participant’s Participation Interests at the price
specified in the Buy-Sell Notice.
(c) The
Electing Participant shall have ninety (90) Business Days (the “Election
Period”) to elect to sell its Participation Interests or buy the Offering Participant’s
Participation Interests at the price specified in the Buy-Sell Notice and, in
the event that the Electing Participant does not provide written notice of its
election within such ninety (90) Business Day period, then the Electing
Participant shall be deemed to have elected to sell its Participation Interests
at the Purchase Price set forth in the Buy-Sell Notice.
(d) The
Participant selling its Participation Interests pursuant to this Section 3.6
shall assign its Participation Interests to the purchasing Participant free and
clear of all liens and encumbrances whatsoever by entering into a participation
interest purchase agreement and perform any and all actions required under
applicable law in order to assign its Participation Interests (including, but not limited to, notary
certification of the participation interest purchase agreement and notary
certification of the application). The closing of the purchase and
sale of the Participation Interests pursuant to this Section 3.6 shall occur
within ten (10) Business Day after the termination of the Election
Period. The purchase price shall be paid by wire transfer of
immediately available funds.
4.3 Withdrawal. No
Participant shall be entitled to withdraw from the Company other than in
connection with (a) a Transfer of all of such Participant’s Participation
Interests pursuant to the terms and conditions of this Agreement or (b) the
dissolution and termination of the Company. The Company shall not be
obligated to purchase the interest of any withdrawing Participant, nor shall
such Participant be entitled to receive any payment or distribution from the
Company in connection with its withdrawal.
(a) Any
Participant (a “Transferring Participant”) desiring to make a Transfer of all or
any portion of its Participation Interests (including any Participation
Interests acquired after the date hereof) pursuant to a Bona Fide Offer shall
first deliver to the Company and the other Participant (the “Remaining
Participant”) a Participant’s Offer in respect of such Participation Interests
(the “Offered Participation Interests”).
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(b) The
Remaining Participant may, within thirty (30) days (the “Participant First
Refusal Period”) after receipt of any Participant’s Offer, elect, in accordance
with Section 4.4(d), to purchase all, but not less than all, of the Offered
Participation Interests for the purchase price and on the payment terms set forth in the Offer.
(c) In
the event that the Remaining Participant does not elect to purchase all of the
Offered Participation Interests within the Participant First Refusal Period, the
Company may within three days after the expiration
of the Participant First Refusal Period elect to purchase all, but not
less than all, of the Offered Participation Interests for the purchase price
and on the payment terms set forth in the
Participant’s Offer.
(d) Acceptance
of any Participant’s Offer shall be evidenced by a writing or writings signed by
the Remaining Participant or the Company. The Transferring
Participant shall assign its Participation Interests to the Remaining
Participant or the Company, as the case may be, free and clear of all liens and
encumbrances whatsoever by entering into a participation interest purchase
agreement and perform any and all actions required under applicable law in order
to assign its Participation Interest (including, but not limited to, notary
certification of the participation interest purchase agreement and notary
certification of the application). The closing of the purchase and
sale of the Participation Interests pursuant to this Section 4.4 shall
occur on the date specified in the
Participant’s Offer, which shall be within fifty (50) days
after the Remaining Participant’s or the Company’s receipt of the Participant’s
Offer. The purchase price shall be paid by wire transfer of
immediately available funds, unless it is being paid in accordance with the
payment terms of the Bona Fide Offer.
(e) In
the event that the Company or the Remaining Participant does not elect to
purchase all of the Offered Participation Interests as set forth above and the
Participant’s Offer was not revoked upon the Remaining Participant’s consent,
all of the Offered Participation Interests may be Transferred by the
Transferring Participant to the Bona Fide Third
Party on the terms set forth in the Bona
Fide Offer free of the rights of first refusal set forth in this Section
4.4 within sixty (60) Business Days of the delivery of the Participant’s Offer,
on terms no more favorable to the Bona Fide Third
Party than those described in the Participant’s Offer and applicable Bona
Fide Offer. In the event that the Transfer pursuant to the Bona Fide
Offer is not consummated, within such
sixty (60) Business Day period, the Company and the Remaining Participant shall
have the right, pursuant to the terms of this Section 4.4, to purchase such
Offered Participation Interests in any subsequent attempted
Transfer.
(a) In
the event that the Company and the Remaining Participant elect not to
purchase all of the Offered Participation
Interests pursuant to Section 4.4, above, and the Transferring Participant is
Transferring Participation Interests constituting twenty percent (20%) or more
of the Transferring Participant’s Participation Interests, then the Remaining
Participant shall have the right to require (the “Tag-Along Right”) that a
number of its Participation Interests, not to exceed thirty percent (30%) of the
total number of Participation Interests being purchased by the Bona Fide Third Party in the Bona Fide Offer, be
sold pursuant to and in accordance with the terms of the Bona Fide
Offer.
13
(b) The
Remaining Participant shall provide written notice of its election to exercise
the Tag-Along Right (the “Participation Notice”) on or before the end of the
Participant First Refusal Period. The Participation Notice shall
include the number of Participation Interests that the Remaining Participant
elects to sell pursuant to the Tag-Along Right.
(c) If
the Transferring Participant receives the Participation Notice in a timely
manner, the Transferring Participant will assign to the Remaining Participant
the right to sell the number of Participation Interests equal to the number of
Participation Interests referenced in the Participation Notice, which amount shall
not exceed thirty percent (30%) of the aggregate number of Participation
Interests being sold pursuant to the Bona Fide Offer. In the event that the Transferring Participant shall fail to procure that the
Participation Interests designated to be sold by the Remaining Participant in
accordance with this Section 4.5 are purchased by the Bona Fide Third Party,
then the Transferring Participant shall not be permitted to Transfer any
Participation Interests to the Bona Fide Third Party. The
costs and expenses of the Transfer of
Participation Interests in accordance with this Section 4.5 will be paid
by each selling Participant on a pro rata
basis according to the number of Participation Interests being sold by each such
Participant.
(a) The Participants shall procure that the Company
shall (a) afford each Participant, during normal business hours and upon
reasonable notice, reasonable access and consultation rights at all reasonable
times to the Management Committee, offices and books and records, (b) deliver to
each Participant annual audited and monthly unaudited balance sheets, income
statements, and cash flow statements, and other financial information (the
“Accounting Statements”) as determined by the Board and (c) shall provide such
additional information as may be requested from time to time by any Participant,
including but not limited to providing CBL with any information in any
form as required by applicable law and/or the applicable requirements of any
stock exchange or Nasdaq or which is otherwise necessary to maintain
CBL's status as a listed public company. The
Accounting Statements shall be maintained in accordance with generally accepted
accounting practices in the Russian Federation.
(b) Unless
otherwise approved by the Board, each Participant shall maintain the
confidentiality of any and all non-public
information furnished by the Company and received by such Participant pursuant
to this Agreement or otherwise, by using the same degree of care, but no less
than a reasonable degree of care, as such Participant uses to protect its own
confidential information, except:
(i) to
the extent such information shall have become publicly available otherwise than
through a breach of this Agreement by such Participant or any of its
Affiliates;
(ii) to
the extent required (i) to comply with any subpoena or similar demand to which a
Participant becomes subject or (ii) by applicable law or regulation, or stock
exchange rule; provided that in each such case such Participant, if legally
permissible, shall give the Company prompt notice of such requirement or
demand (as applicable), to the extent practicable, so that the Company may seek
an appropriate protective order or similar relief (and the Participant shall
cooperate reasonably with such efforts by the Company, at the Company’s
expense); or
14
(iii) to
Affiliates of Participants and their respective directors, officers, employees,
counsel, accountants and other professional advisors with whom such Participant
reasonably determines it is necessary to share such information in connection
with such Participant’s investment in the Company and that are informed of the
confidential nature of the information and agree to keep it confidential (and
such Participant shall be liable for any disclosure made by such Persons that is
not permitted hereunder), in each case, subject to any limitations under
applicable law.
6.1 The
Participants agree:
(a) to
take all actions necessary or appropriate to cause the adoption of all
resolutions and decisions at any General Meeting or meeting of the Board or
Management Committee as is required in each case to implement this
Agreement;
(b) to
exercise their voting rights at any General Meeting and to instruct their
respective directors to exercise their voting rights, subject to their fiduciary
duties, in a manner consistent with all of their respective obligations under,
and other applicable provisions of, this Agreement and the charter of the
Company; and
(c) to
comply with and perform fully each of its obligations, commitments, covenants,
and agreements to and with the other parties hereto contained in this Agreement,
and take any and all actions as may be
necessary to cause the Company to provide such rights and benefits and to comply
with such obligations, commitments, covenants, and agreements.
6.2 In
the event there is a conflict or inconsistency between this Agreement and the
charter of the Company, the Participants shall take all lawful actions necessary
to amend the charter, if such amendment is permitted under applicable law, in
order to implement the terms of this Agreement, and in any event, shall act in
accordance with this Agreement, unless to do so would violate applicable law and
the charter of the Company.
6.3 The
parties intend and agree that the provisions of this Agreement are to be
specifically enforceable in the arbitration of any dispute arising pursuant to
this Agreement in accordance with Section 7.10.
7.1 Publicity. All
publicity concerning the transactions contemplated by this Agreement shall be
coordinated by and between the Participants. No party hereto shall
act unilaterally in this regard without the prior approval of the
other. Each Participant agrees not to, and
shall procure that the Company shall not, issue or cause the issuance of,
and each Participant will prevent its
employees or agents (or the employees or agents of
the Company) from issuing or causing the issuance of, any press release
or other information in the nature of a press release relating to this Agreement
or the transactions contemplated hereby. Except as required by
law or as permitted by Section 5, there
shall be no disclosure of the economic terms of this
Agreement. Notwithstanding anything to the contrary contained herein,
CBL shall have the right to make any disclosure that it determines, upon the
advice of counsel, to be required by applicable law and/or the applicable
requirements of any stock exchange or Nasdaq.
15
7.2 Waivers and
Amendments. This Agreement may be amended or modified in whole
or in part only by a writing which makes reference to this Agreement executed by
the Participants. The obligations of any party hereunder may be
waived (either generally or in a particular instance and either retroactively or
prospectively) only with the written consent of the party claimed to have given
the waiver; provided, however, that any
waiver by any party of any violation of, breach of, or default under any
provision of this Agreement or any other agreement provided for herein shall not
be construed as, or constitute, a continuing waiver of such provision, or a
waiver of any other violation of, breach of or default under any other provision
of this Agreement or any other agreement provided for herein.
7.3 Successors and
Assigns. This Agreement shall be binding upon and shall inure
to the benefit of the Participants and
their respective successors and permitted assigns. No Participant may
assign any or all of his rights or delegate any or all of his or its duties
under this Agreement to any Person without the prior written consent of the
other Participant.
7.4 Counterparts. This
Agreement should be executed as one documents in any number of copies, each of
which shall be executed by duly authorized representative of the parties
hereto.
7.5 Notices. All
notices and other communications required or permitted hereunder shall be
effective upon receipt and shall be in writing and may be delivered in person,
by telecopy, electronic mail or overnight delivery service, in which event it
may be mailed by first-class, certified or registered, postage prepaid,
addressed (a) if to the Company, at its principal address or (b) if to any
Participant at its address as shown from time to time on the books and records
of the Company.
7.6 Entire
Agreement/Conflict. This Agreement, together with the other
agreements referred to herein, embodies the entire agreement among the parties
in relation to its subject matter, and supercedes in their entirety all prior
contracts, agreements, arrangements, communications, discussions,
representations and warranties, whether oral or written among the parties,
including, without limitation, that certain Participants Agreement Term Sheet
dated May 20, 2009. All parties hereto agree that in the event
of any conflict between the provisions of this Agreement and the provisions of
the Company’s charter, the provisions of the Company’s charter shall be
controlling to the extent they do not contradict applicable law.
7.7 Costs and
Expenses. All legal costs and expenses incurred by the
Participants in connection with this Agreement and the transactions contemplated
hereby shall be shared equally. The Participant incurring such expenses shall provide
documentation reasonably satisfactory to the other Participant, and the non-incurring Participant shall promptly (and in any event
within thirty (30) days) reimburse the incurring Participant for fifty percent (50%) of such
expense.
7.8 Governing
Law. This Agreement shall in all respects be governed by and
construed in accordance with the applicable laws of the Russian
Federation.
7.9 Severability. Each
section, subsection and lesser section of this Agreement constitutes a separate
and distinct undertaking, covenant and/or provision hereof. In the
event that any provision of this Agreement shall finally be determined to be
unlawful, all such provisions shall be deemed severed from this Agreement, but
every other provision of this Agreement shall remain in full force and effect,
and in substitution for any such provision held unlawful, there shall be
substituted a provision of similar import reflecting the original intent of the
parties hereto to the extent permissible under law.
16
7.10 Resolution of
Disputes.
(a) All
disputes, differences, controversies or claims between the parties arising out
of, relating to or in connection with this Agreement, including any questions
regarding its existence, validity, breach or termination (a “Dispute”), shall be
resolved in accordance with this Section7.10.
(b) All
Disputes shall be referred to a committee of two persons comprised of a person
selected by CBL and a person selected by BCP. Such committee shall
attempt to resolve the Dispute during the thirty (30) day period following such
referral through amicable conciliation, and may consult outside experts for
assistance in attempting to resolve the Dispute.
(c) In
the event that a Dispute is not resolved pursuant to paragraph (b) above within
the thirty (30) day period or such parties were not able to convene the
committee within ten (10) days of a party requesting such a convention, such
Dispute shall be finally settled in the Moscow Arbitrazh Court in accordance
with Russian law. Each party retains the right to seek interim, provisional or
conservatory measures from judicial authorities and any such request shall not
be deemed incompatible with the agreement to settle in court or a waiver of the
right to settle in court.
(d) The
court decision shall be final and binding on the parties.
7.11 Liquidation - Distribution
of Assets. In the event of dissolution or termination of the
Company, the Participants hereby agree that all assets, remaining in the
Company’s possession after the satisfaction of the Company’s creditor claims and
payment to the Participants of the profit approved for distribution, but
remaining unpaid , will be distributed between Participants in proportion to
their Participation Interests in the charter capital at the time of dissolution
or termination, provided, however, that in allocating the cash and non-cash
assets of the Company, 100% of the cash will be distributed to BCP as part of
BCP’s distribution.
7.12 Language. The
Agreement has been made in Russian and English language. In the event of
conflict or inconsistency between the English and Russian versions of the
Agreement, the Russian version shall prevail.
17
IN
WITNESS WHEREOF, the Company and the Participants have executed this
Participation Agreement as of the date first above written.
| CLEVELAND BIOLABS, INC. | |||||
|
Name:
|
/s/
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
|
|
|||
| Title: |
President
and Chief Executive Officer
|
|
|||
|
BIOPROCESS
CAPITAL PARTNERS
|
|||||
|
Name:
|
/s/ ▇▇▇▇▇▇▇▇ Tezov
|
|
|||
| Title: |
Chief
Executive Officer
|
|
|||
18
EXHIBIT
A
CBL CONTRIBUTED INTELLECTUAL
PROPERTY
|
Assignment
|
Folder
ID
|
Patent
Family No
|
Patent
Family Name
|
Priority
Date
|
Assignment
|
Application
#s/country ID
|
App.
Internal ID
|
Country
|
|
|
CCF
|
Sole
|
8
|
0300
|
Inhibition
of NF-kB
|
20.07.2004
|
CCF
|
60/589,637
|
||
|
20.07.2005
|
PCT/US2005/025884
|
||||||||
|
CCF
|
Sole
|
10
|
0300
|
Activation
of p53 and Inhibition of NF-kB for cancer treatment
|
20.07.2004
|
CCF
|
2007-522754
|
0300.01JPPC
|
Japan
|
|
TBD
|
0300.01AUPC
|
Australia
|
|||||||
|
05791579.5
|
0300.01EPPC
|
Europe
|
|||||||
|
11/624,828
|
0300.01USCN
|
US
|
|||||||
|
CCF
|
Sole
|
12
|
0302
|
Modulation
of Immune Responses
|
14.11.2005
|
CCF
|
60/736,881
|
||
|
PCT/US06/060864
|
0302.01USPC
|
US
|
|||||||
|
CCF
|
13
|
0303
|
Modulation
of Apoptosis Using Aminoacridines
|
02.02.2006
|
CCF
|
PCT/US07/61568
|
0303.01PC00
|
US
|
|
|
CBLI
|
19
|
0304
|
Inducing
cell death by inhibiting adaptive heat shock response
|
20.05.2008
|
CBLI
|
61/054,785
|
0304.00USPZ
|
US
|
|
|
CBLI
|
with
Ch▇▇▇▇▇▇▇▇
|
▇▇
|
▇▇▇▇
|
▇▇▇▇▇▇▇▇▇
▇ompounds and Therapeutic Uses of the Compounds
|
06.10.2008
|
CBLI
/Chembridge
|
61/102,913
|
Not
Assigned
|
US
|
19
EXHIBIT
B
CAPITAL
TABLE
|
Tranche
|
Duration
in quarters
|
Bioprocess
Capital Ventures
|
Cleveland
Biolabs,Inc.
|
Charter
Capital
|
|||
|
thou.rub.
|
%
|
thou.rub.
|
%
|
thou.rub.
|
%
|
||
|
1
|
5
|
175
570
|
24.20
|
549
900
|
75.80
|
▇▇▇
▇▇▇
|
▇▇▇
|
|
2
|
6
|
192
737
|
40
|
0
|
60
|
918
207
|
100
|
|
3
|
6
|
181
190
|
50%-1
|
0
|
50%+1
|
1
099 397
|
100
|
|
TOTAL
|
17
|
549
497
|
50%-1
|
549
900
|
50%+1
|
1
099 397
|
100
|
20
EXHIBIT
C
DEVELOPMENT
AGREEMENT
21
EXHIBIT
D
PROPOSED RESEACH
PROGRAM