FIRST AMENDMENT TO ASSET PURCHASE AGREEMENT
Exhibit 10.1
FIRST AMENDMENT TO
This First Amendment to Asset Purchase Agreement
(this “First Amendment”) is entered into by and
between Aytu Bioscience, Inc., a Delaware corporation
(“Buyer”), and Cerecor
Inc., a Delaware corporation (“Seller”), as of November
1, 2019.
WHEREAS, Buyer and Seller are parties to
that certain Asset Purchase Agreement
dated October 10, 2019 (the “Original
Agreement”);
and
WHEREAS, pursuant to Section 7.10 thereof, Buyer and
Seller wish to amend the Original Agreement on the terms and
conditions set forth in this First Amendment.
NOW,
THEREFORE, in consideration of
the foregoing and the mutual promises set forth herein and in the
Original Agreement, the parties agree as
follows:
1. Capitalized
Terms. Capitalized terms used
but not otherwise defined herein shall have the meanings ascribed
to them in the Original
Agreement.
2. Amendment of Section 1.1. The
definition of “Aytu Preferred Stock” in Section 1.1 of
the Original Agreement is hereby deleted in its entirety and
replaced with the following:
“Aytu Preferred Stock”
means a series of convertible preferred stock of Buyer having the
terms and conditions set forth in the form of Preferred Stock
Designation in Exhibit 1.1 hereto, which shall be
non-transferable for a period beginning on the date of issuance and
ending on the earlier of (i) July 1, 2020 or (ii) the date such
preferred stock is converted into shares of AYTU Common
Stock.”
3. Amendment of Section 1.1. The
definition of “Deerfield Obligation” in Section 1.1 of
the Original Agreement is hereby deleted in its entirety and
replaced with the following:
“Deerfield Obligation”
means (i) the remaining Fixed Payments (as defined in the Deerfield
Agreement and amended by the Deerfield Waiver) beginning on October
31, 2019, totaling $16,575,000, and detailed on Appendix A of the
Deerfield Waiver, and (ii) the Deferred Consideration (as
defined in the Deerfield Agreement and amended by the Deerfield
Waiver).”
Additionally, any
references to the Deerfield Obligation in the Schedules are also
hereby amended to reflect such obligations as stated in Appendix A
to the Deerfield Waiver.
4. Amendment of Section 6.3(f).
Section 6.3(f) of the Original Agreement is hereby deleted in its
entirety and replaced with the following:
“The
aggregate amount required to be paid by Seller under Sections 6.1(a)-(b) or by Buyer
under Sections 6.2
(a)-(b) shall not exceed the Cash
Consideration.”
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5. Amendment of Schedule
2.2(a)(ii). Schedule 2.2(a)(ii) attached to the Original
Agreement is hereby deleted in its entirety and replaced with
Schedule 2.2(a)(ii) attached hereto as Exhibit A.
6. Amendment to Schedule
2.2(a)(iii). Schedule 2.2(a)(iii) attached to the Original
Agreement is modified such that the information under the heading
“Domain Name
Registrations” is hereby deleted in its entirety and
replaced with the information attached hereto as Exhibit B.
7. Amendment to Supply Agreement
Reference. All references to the “Supply and
Distribution Agreement between Tris Pharmaceuticals, Inc. and FSC
Laboratories, Inc., dated August 9, 2013, as amended August 13,
2014 and February 24, 2016 (related to Karbinal ER)” included
in the Original Agreement and Schedules are hereby deleted in their
entirety and replaced with the “Supply and Distribution
Agreement between Tris Pharmaceuticals, Inc. and FSC Laboratories,
Inc., dated August 9, 2013, as amended August 13, 2014, February
24, 2016 and October 29, 2019 (related to Karbinal
ER)”.
8. Amendment of Exhibit 1.1. The
Form of Preferred Stock Designation attached as Exhibit 1.1 of the
Original Agreement is hereby deleted in its entirety and replaced
with the Form of Preferred Stock Designation attached hereto as
Exhibit
C.
9. Full Force and Effect. Except
as modified and amended by this First Amendment, the terms and
conditions of the Original Agreement remain in full force and
effect.
10.
Conflict. In the event of
conflict between the provisions of the Original Agreement and this
First Amendment, the provisions of this First Amendment shall
control.
11. Counterparts; Electronic
Signatures. This First Amendment may be executed in one or
more counterparts (including by transmission-mail), all of which
shall be considered one and the same agreement and shall become
effective when one or more counterparts have been signed by each of
the parties and delivered to the other party.
[signature page follows]
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IN
WITNESS WHEREOF, the parties have caused this First Amendment to be
duly executed as of the date first set forth above.
BUYER:
By:
/s/ Xxxxxx X.
Xxxxxxx
Name:
Xxxxxx X.
Xxxxxxx
Title
___________________________
SELLER:
CERECOR
INC.
By:
_____________________________
Name:
__________________________
Title:
___________________________
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