AMENDMENT TO ASSET PURCHASE AGREEMENT
Exhibit
10.14
AMENDMENT
TO ASSET PURCHASE AGREEMENT
This
AMENDMENT to the ASSET PURCHASE AGREEMENT (this “Amendment”) is made as of
May 12, 2014 (the “Effective Date”), by and
between ADGERO BIOPHARMACEUTICALS, INC., a Delaware corporation
(the “Buyer”) and ST. CLOUD
INVESTMENTS, LLC, a limited liability corporation incorporated in
the British Virgin Islands (the “Seller”). Capitalized
terms used and not defined in this Amendment have the meanings
given to them in the APA.
RECITALS
WHEREAS, Buyer and
Seller entered into that certain Asset Purchase Agreement, dated as
of November 26, 2012 (as the same may be amended, amended and
restated, supplemented, or otherwise modified from time to time in
accordance with its provisions, the “APA”), pursuant to which
Seller sold certain Acquired Assets (as defined in the APA) to
Buyer;
WHEREAS, Buyer
desires to amend certain financial terms of the APA;
and
WHEREAS, Buyer and
Seller are willing to make such amendments on the terms and subject
to the conditions set forth in this Amendment.
AGREEMENT
NOW,
THEREFORE, in consideration of the premises set forth above and
other good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, the parties agree as
follows:
1) The
definition of Financing Payment Schedule in Article VII of the APA
is deleted in its entirety and replaced with the
following:
“Financing Payment
Schedule” means that: 1) Seller or Seller’s
designee shall receive ten percent (10%) of any monies raised via
equity financing by either the Buyer or Buyer Licensee until such
time as the total amount of $53,000 due under Section 1.2(b) has
been paid as directed in Section 1.2(b) and 2) within thirty (30)
days of the closing of an equity financing wherein the total funds
raised by the Buyer or Buyer Licensee (including all equity
financings that occur after the date of this Amendment) exceeds $4
million, the Seller and Seller’s Designee shall be paid the
Initial Milestone Payment of $100,000 cash with $50,000 paid to the
Seller and $50,000 to the Seller’s Designee.
2) Section
1.3(b)(i) of the APA is deleted in its entirety and replaced with
the following:
(i) a
total of $300,000 in cash or an equivalent amount of stock, with
such choice of consideration to be determined in the Buyer’s
sole discretion, with $240,000 paid to the Seller and $60,000 paid
to the Seller’s Designee, upon the sooner of (A) the next
equity financing after a “non-exploratory clinical
trial” (a Phase IIB trial in which at least fifty (50)
patients complete the trial and their clinical data can be
evaluated) or (B) the commencement of a clinical trial intended to
be used as a definitive study for market approval in any country,
with the stock price equal to the price per share of the most
recent financing, or, if the Buyer is considered to be a
publicly-traded company, the average of the closing price per share
of such stock over the twenty (20) trading days following the first
public announcement of the events described in (A) or (B) above;
and
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3) Section
1.3(b)(ii) of the APA is deleted in its entirety and replaced with
the following:
(ii) a
total of $700,000 in cash or an equivalent amount of stock, with
such choice of consideration to be determined in the Buyer’s
sole discretion, with $560,000 paid to the Seller and $140,000 paid
to the Seller’s Designee, upon the grant of the first
Regulatory Approval of a Product. If the Buyer is considered to be
a private company at the time of the payment, the value of the
stock will be equal to the price per share of the most recent
financing, or, if the Buyer is considered to be a publicly-traded
company at the time of the payment, the value of the stock will be
equal to the average of the closing price per share of such stock
over the twenty (20) trading days following the first public
announcement of the Regulatory Approval.
4) Section
1.3(c) of the APA is deleted in its entirety and replaced with the
following:
(c) Unless
earlier terminated, either Buyer or any Buyer Licensee, but not
both, shall pay to Seller a single royalty equal to four and four
fifths percent (4.8%) of Net Sales during the Royalty Term and
shall pay to Seller’s Designee a single royalty equal to one
and one fifth percent (1.2%) of Net Sales during the Royalty Term.
A Buyer Licensee may pay the royalty directly or indirectly through
Buyer. The payments due under this Section 1.3(c) shall be paid
within thirty (30) days of the end of each calendar quarter during
which revenue is collected. Royalties on Net Sales under this
Section 1.3(c) will be payable on a Product-by-Product and
country-by-country basis, commencing on the first commercial sale
of a Finished Product in a country until the later of (i) the
invalidation, revocation, lapse or expiration of the last to expire
Valid Claim of any Patent that would be infringed by the sale of
such Finished Product in such country or (ii) the expiration of any
Regulatory Exclusivity Period for such Product in such country (the
“Royalty
Term”). The Royalty Term will include only that period
for which the Buyer, any Buyer Licensee, or any of their designees,
holds exclusive marketing rights in the relevant jurisdiction for
the Acquired Assets, or products derived from the Acquired Assets,
as a result of a legal right received as part of this Asset
Purchase Agreement by Data Exclusivity, Orphan Drug Exclusivity or
Patent Protection. However, patents which may be in force but which
do not provide marketing exclusivity will not be included in the
determination of royalties to be paid to Seller under this
agreement.
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IN
WITNESS WHEREOF, the parties hereto have executed this Amendment as
of the Effective Date.
ADGERO
BIOPHARMACEUTICALS, INC.
By:
/s/ Xxxxx X.
Xxxxxxxxxx
Name:
Xxxxx X. Xxxxxxxxxx
Title:
Chief Executive Officer
ST.
CLOUD INVESTMENTS, LLC
By:
/s/ Xxxxxxx
Xxxxxx
Name:
Xxxxxxx Xxxxxx
Title:
Attorney-In-Fact
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