Exhibit Index

Exhibit 2.1

FOR EXECUTION

ASSET PURCHASE AGREEMENT

THIS ASSET PURCHASE AGREEMENT is made as of the 26th day of January, 2018 (the “ Agreement ”), by and between Enumeral Biomedical Holdings, Inc., a Delaware corporation with an address at 1337 Massachusetts Avenue #243, Arlington, MA. 02476 (“ Seller ”), and XOMA US LLC, a Delaware limited liability company with its principal place of business at 2200 Powell Street, Suite 310, Emeryville, CA 94608 (“ Buyer ”).

A.           Seller is the owner of certain intellectual property assets related to Seller’s anti-PD-1 antibody program.

B.           Promptly following the execution of this Agreement and Seller’s receipt of the Deposit (as defined in Section 5 ), Seller will commence a case (the “ Chapter 11 Case ”) under chapter 11 of the United States Bankruptcy Code (any section thereof is referred to as “ Code Section ”) in the United States Bankruptcy Court for the District of Massachusetts (the “ Bankruptcy Court ”).

C.            Subject to entry in the Chapter 11 Case of an order substantially in the form of Exhibit A annexed hereto (the “ Sale Order ”) and the satisfaction or waiver of the other conditions precedent set forth in this Agreement, Seller wishes to sell to Buyer, and Buyer wishes to buy from Seller, the Purchased Assets (as defined in Section 2 ) pursuant to Code Section 363 and on the terms and conditions set forth in this Agreement.

D.           From Buyer’s perspective, it is essential that the Purchased Assets be transferred to Buyer free and clear of any Encumbrance (as defined in Section 1(b) ), except that the Purchased Assets are to be transferred subject to the Pieris Agreement (as defined in Section 1(h) ).

NOW, THEREFORE, in consideration of the mutual agreements contained herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Seller and Buyer agree as follows:

1.            Definitions . In addition to other defined terms appearing elsewhere herein, the following capitalized terms shall have the meanings set forth below.

(a)           “ Affiliate ” means, as to any Person, any other Person that directly, or indirectly through one or more intermediaries, controls, is controlled by or is under common control with the first Person, where the term “control” means the power to direct, or cause the direction of, the management or policies of such Person, whether through the ownership of voting securities, by contract or otherwise.

(b)          “ Encumbrance ” means any lien, pledge, hypothecation, charge, mortgage, security interest, encumbrance, trust, equitable interest, claim, liability (including by reason of successor liability or any other legal doctrine), preference, right of possession, lease, tenancy, license, encroachment, option, right of first refusal, preemptive right, or restriction on possession, use, transfer, or any other attribute of ownership.

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(c)           “ Intellectual Property ” means all information, materials and other subject matter that are covered by, or are embodiments of, Intellectual Property Rights, including, by way of example, proprietary business methods, processes and other inventions, works of authorship, artistic works and other subject matter that are covered by patents, copyrights, trademarks, service marks, logos, domain names, and all information subject to protection as trade secrets. For avoidance of doubt, without limiting the foregoing, Intellectual Property includes algorithms, formulae, protocols, software code (in any format, including source code and executable formats), software documentation, books and reports, marketing and advertising content, system architectures and configurations, database schemas, non-public data, all electronic and digital records or any kind and all documents evidencing ownership of the foregoing, including agreements of employees and contractors of Seller assigning intellectual property to Seller.

(d)           “ Intellectual Property Rights ” means all rights owned by Seller directly related to the Program (as defined in Section 2(a) ) in respect of any Patent, copyright, trademark, and trade secret, including (i) the rights to copy, publicly perform, publicly display, distribute, adapt, translate, modify and create derivative works of copyrighted subject matter; (ii) the rights to preclude another from using, making, having made, selling, offering to sell, and importing patented subject matter and the right to preclude another from practicing patented methods, (iii) the rights to use and display any marks in association with businesses, products or services as an indication of ownership, origin, affiliation, or sponsorship; (iv) all existing applications for such copyrights, Patents and trademarks, including without limitation and all associated claims and causes of action arising therefrom or related thereto, (v) rights in any domain name registration; and (vi) the rights to apply for any of the foregoing rights, and all rights in those applications. Intellectual Property Rights also include any and all rights associated with particular information that are granted by law and that give Seller, independent of contract, exclusive authority to control use or disclosure of the information, including privacy rights and any rights in databases recognized by applicable law, in all cases only to the extent directly related to the Program.

(e)           “ Patent ” means, collectively, all patents (including all reissues, divisions, provisionals, continuations and continuations-in-part, re-examinations, renewals and extensions thereof), patent applications, patent disclosures or other patent rights owned by Seller directly related to the Program, including, without limitation, the patent applications listed in Exhibit B .

(f)           “ Person ” means an individual, partnership, firm, corporation, limited liability company, association, joint venture, trust, unincorporated organization or other entity (including any governmental entity or any department, agency or political subdivision thereof).

(g)           “ Pieris ” means, collectively, Pieris Pharmaceuticals, Inc., Pieris Pharmaceuticals GmbH and their respective Affiliates.

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(h)          “ Pieris Agreement ” means that certain Definitive License and Transfer Agreement, dated June 6, 2016, by and among Pieris Pharmaceuticals, Inc., Pieris Pharmaceuticals GmbH and Seller, as amended.

(i)            “ Knowledge of Seller ” means the actual knowledge of Kevin Sarney and Matthew Ebert after due inquiry.

2.             Agreement to Sell and Buy .

(a)           At the Closing (as defined below), in consideration of the payment of the Purchase Price and the assumption of the Assumed Liabilities (each as defined below), Seller will sell assign, transfer, convey and deliver to Buyer, free and clear of all Encumbrances but subject to the Assumed Liabilities, all right, title and interest of Seller in and to the intellectual property assets owned by Seller directly related to its anti-PD-1 antibody program (the “ Program ”), including, without limitation, (a) all Intellectual Property and Intellectual Property Rights and all claims and causes of action arising therefor or related thereto, and (b) all of Seller’s rights under the Pieris Agreement (collectively, the “ Purchased Assets ”). For the avoidance of doubt, the Purchased Assets do not include the rights, properties and assets owned by Seller other than those directly related to the Program.

(b)           In connection with the purchase of the Purchased Assets, at the Closing, Buyer shall assume and shall thereafter perform, discharge or otherwise satisfy in accordance with its terms, the liabilities of Seller under the Pieris Agreement (but, for the avoidance of doubt, in all cases excluding any liability accrued prior to the Closing or that results from any actions of Seller or its Affiliates after the Closing) (the “ Assumed Liabilities ”). Buyer shall not assume and shall have no obligations with respect to any liabilities of Seller other than the Assumed Liabilities (such liabilities, the “ Excluded Liabilities ”).

3.            Purchase Price . In consideration for the sale and transfer to Buyer of the Purchased Assets, Buyer shall pay Seller One Million Six Hundred Thousand and 00/100 Dollars ($1,600,000.00) in immediately available funds (the “ Purchase Price ”) at the Closing (as defined in Section 4 ).

4.             Closing . The closing of the purchase and sale of the Purchased Assets and the assumption of the Assumed Liabilities (the “ Closing ”) shall take place by electronic exchange of signature pages no later than two business days following the satisfaction or waiver of the conditions set forth in Section 10 and Section 11, or such other date as mutually agreed upon by Buyer and Seller. The date on which the Closing shall occur is referred to herein as the “ Closing Date ”. The Closing shall be effective for all purposes as of 12:01 a.m. on the Closing Date.

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5.             Deposit . Contemporaneously herewith, Buyer shall deliver to Seller’s counsel a deposit in the amount of One Hundred and Sixty Thousand and 00/100 Dollars ($160,000.00) (the “ Deposit ”), which shall be (a) applied toward the Purchase Price at the Closing, (b) returned to Buyer (without interest) within two (2) business days after the termination of this Agreement by the parties pursuant to Section 18(a)(i) , by either party pursuant to Sections 18(a)(iii) or 18(a)(iv) (unless caused by Buyer’s breach of this Agreement), by Buyer pursuant to Sections 18(a)(ii) or 18(a)(v) , or by Seller pursuant to Section 18(a)(vi) , and (c) if this Agreement is terminated by Seller pursuant to Section 18(a)(ii) , retained by Seller. From commencement of the Chapter 11 Case until disposition of the Deposit pursuant to the preceding sentence, the Deposit shall be held by Seller’s counsel but deemed in custodia legis with the Bankruptcy Court and not property of Seller’s bankruptcy estate (although, for the avoidance of doubt, this Agreement and Seller’s right to the Deposit under the circumstances specified herein shall upon commencement of the Chapter 11 Case be assets of Seller’s bankruptcy estate). Notwithstanding anything to the contrary contained in this Agreement, the Deposit shall, unless otherwise ordered by the Bankruptcy Court, be returned to Seller on or before April 4, 2018, or (only if Buyer has been designated Back-Up Bidder pursuant to Section 7) the business day following the Back-Up Bid Closing Date (as defined below).

6.            Bankruptcy Court Approval . Not later than January 30, 2018, Seller shall:

(a)           commence the Chapter 11 Case;

(b)           file therein a motion (the “ Sale Motion ”) seeking (i) approval of and authorization to perform this Agreement and to sell the Purchased Assets to Buyer free and clear of all Encumbrances pursuant to Code Section 363, and (ii) entry of the Sale Order, expressly including the Bankruptcy Court’s determination that Buyer is, and upon completion of the Closing shall be, a purchaser in good faith entitled to the protections of Code Section 363(m); and

(c)           file therein a motion (the “ Bid Procedures Motion ”) seeking entry of an order (the “ Bid Procedures Order ”) setting a date for a hearing on the Sale Motion (the “ Sale Hearing ”) and a deadline not less than three (3) business days before the Sale Hearing for filing and service of objections to the Sale Motion and higher or better offers for the Purchased Assets (each, a “ Counterbid ”), specifying that (i) Seller shall solicit Counterbids, (ii) if any Counterbid is timely received, Buyer and such counterbidder(s) shall each have an opportunity to submit a final sealed bid to be received by Seller’s counsel not later than 4:00 p.m. on the second business day preceding the date scheduled for the Sale Hearing (unless the Bankruptcy Court specifies a different deadline), and (iii) if this Agreement is terminated by Buyer pursuant to Sections 18(a)(ii) or 18(a)(v) , by either party pursuant to Section 18(a)(iv) if by reason of a failure by Seller to use reasonable efforts to prosecute the Sale Motion and the Bid Procedures Motion, or by Seller pursuant to Section 18(a)(vi) , Seller shall, no later than two (2) business days following such termination, pay to Buyer a breakup fee in the amount of $64,000 (the “ Breakup Fee ”). If Seller is unable to pay the Breakup Fee at that time, then the Breakup Fee shall be an allowed priority administrative expense claim and shall be paid by the earlier of (i) two (2) business days following the consummation of a sale of Seller’s assets to another buyer, or (ii) the effective date of a plan in the Chapter 11 Case. The Bid Procedures Order will be in a form mutually acceptable to Buyer and Seller. Without limiting the generality of the foregoing, the Bid Procedures Order shall provide that no claim may be credit bid unless and to the extent that such claim has been allowed as a properly perfected secured claim by final order of the Bankruptcy Court. Seller shall not modify, or consent to the modification of, the Bid Procedures Order or the Sale Order without the prior written consent of Buyer. Notwithstanding the foregoing, in the event the Bid Procedures Order that is entered by the Bankruptcy Court (which shall be in a form approved by Buyer pursuant to the preceding sentence) does not approve the Breakup Fee, Buyer shall have the right to assert a request to the Bankruptcy Court for substantial contribution under Code Section 503(b), including without limitation, for attorneys’ fees.

FOR EXECUTION

Seller shall use reasonable efforts to prosecute the Sale Motion and the Bid Procedures Motion. In support of Seller’s efforts to obtain entry of the Bid Procedures Order and the Sale Order, Buyer shall extend such cooperation as Seller may reasonably request, including being prepared to provide, and providing if so requested by Seller or the Bankruptcy Court, evidence at the Sale Hearing concerning Buyer’s good faith (within the meaning of Code Section 363(m)), lack of conduct of the type specified in Code Section 363(n), and adequate assurance of future performance of the Pieris Agreement within the meaning of Code Section 365(f)(2)(B).

7.          Back-Up Bid . If the Bankruptcy Court does not designate Buyer as the winning bidder for the Purchased Assets, Seller may, on the record at the Sale Hearing, designate Buyer’s highest bid for the Purchased Assets as a back-up bid (the “Back- Up Bid ” and Buyer, as so designated, the “ Back-Up Bidder ”). In such event, upon notice by Seller that Buyer shall be required to perform the Back-Up Bid and specifying a date for the Closing not later than ten (10) business days after the Sale Hearing (the “ Back-Up Bid Closing Date ”), the Closing shall occur on the date so specified provided that the conditions precedent set forth in Section 10 and Section 11 have been satisfied.

8.          Buyer’s Representations and Warranties . Buyer represents and warrants to Seller as of the date hereof that (a) the execution and performance of this Agreement by Buyer have been duly authorized by all necessary corporate action by Buyer, and this Agreement is binding on Buyer in accordance with its terms, (b) Buyer has not engaged a finder or broker in connection with its purchase of the Purchased Assets, (c) Buyer is a wholly owned subsidiary of XOMA Corporation, which is traded on Nasdaq under the symbol XOMA, and (d) the information concerning Buyer’s financial condition that Buyer provided to Seller on January 25, 2018, is true and correct in all material respects, and Buyer acknowledges that Seller has relied upon such information in establishing the amount of the Deposit.

9.           Seller’s Representations and Warranties . Seller represents and warrants to Buyer as of the date hereof that:

(a)          Seller is duly organized and in good standing under the laws of the State of Delaware;

(b)          Seller is qualified to do business in the Commonwealth of Massachusetts, and is in good standing under its laws;

(c)          Subject only to entry of the Sale Order, Seller is duly authorized to execute and perform this Agreement, and this Agreement is binding on Seller in accordance with its terms;

(d)          Seller owns good, valid and marketable title to the Purchased Assets, free and clear of all Encumbrances, other than Encumbrances that will be discharged upon entry of the Sale Order, and subject only to Seller’s obligations under the Pieris Agreement;

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(e)          after giving effect to the consummation of the transactions contemplated by this Agreement, including the entry by the Bankruptcy Court of the Sale Order, Buyer will have good and marketable title to the Purchased Assets free and clear of any and all Encumbrances (other than Buyer’s obligations to perform the Assumed Liabilities);

(f)           the Purchased Assets constitute all of the assets owned by Seller in the Program and constitute all of the rights, property and assets necessary to conduct the Program as currently conducted;

(g)          to the Knowledge of Seller, no approvals (other than entry of the Sale Order) are required in order for Seller to perform its obligations under this Agreement;

(h)          there are no legal actions, suits, litigation, arbitration, or legal proceedings (including any civil, criminal, administrative, investigative or appellate proceeding) pending, or to Knowledge of Seller threatened, which relate to the Purchased Assets or the Assumed Liabilities;

(i)          to the Knowledge of Seller, all of the Intellectual Property Rights are valid, subsisting and enforceable;

(j)          to the Knowledge of Seller, no Intellectual Property infringes, violates or makes unlawful use of any intellectual property (whether patents, trademarks, copyrights, or other registered or unregistered intellectual property) of, or contains any intellectual property misappropriated from, any other Person;

(k)          the Pieris Agreement is a legal, valid and binding obligation of Seller and, to the Knowledge of Seller, each other party thereto, enforceable against Seller and each such other party in accordance with its terms;

(l)           neither Seller nor, to the Knowledge of Seller, any other party thereto, is in breach or has failed to perform any obligation under the Pieris Agreement or delivered written notice of such party’s intent to terminate or otherwise modify the Pieris Agreement; and

(m)         Seller has not engaged a finder or broker in connection with his sale of the Purchased Assets.

Except for the representations and warranties contained in this Agreement, the Purchased Assets shall be transferred to Buyer on an as-is and where-is basis, with no other representations or warranties of any nature whatsoever. Buyer acknowledges that Buyer has had such opportunity as Buyer deems sufficient to conduct due diligence with respect to the Purchased Assets; and Buyer has not relied and will not rely on any representation, warranty or other statement made or to be made by Seller, or any officer, employee, counsel or agent of either of them, except as expressly set forth in this Section 9 or any certificate delivered by Seller to Buyer at Closing. For the avoidance of doubt, none of the foregoing representations or warranties shall be construed to imply that (i) Seller continues to conduct the Program despite being in the process of liquidation, or (ii) Seller has any Intellectual Property Rights other than pursuant to the patent applications identified in Exhibit B .

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10.             Buyer’s Closing Conditions . Buyer’s obligation to consummate the purchase of the Purchased Assets and the assumption of the Assumed Liabilities is subject to fulfillment of the following conditions precedent at or prior to the Closing Date (and are waivable by Buyer in its sole discretion):

(a)          The Sale Order shall have been entered and remain in full force and effect, not having been modified (without Buyer’s prior written consent) or stayed;

(b)           The representations and warranties of Seller contained in Section 9 shall be true and correct in all respects as of the date hereof and as of the Closing Date (as of made on and as of such date);

(c)           Seller shall have performed and complied in all material respects with the obligations and covenants required by this Agreement to be performed or complied with by Seller on or prior to the Closing Date; and

(d)           There shall not have occurred after the date of this Agreement (unless cured at or before the Closing) any material adverse effect with respect to the Purchased Assets.

11.          Seller’s Closing Conditions . Seller’s obligation to consummate the sale of the Purchased Assets to Buyer is subject to fulfillment of the following conditions precedent at or prior to the Closing Date (and are waivable by Seller in its sole discretion):

(a)           The Sale Order shall have been entered and remain in full force and effect, not having been modified (without Seller’s prior written consent) or stayed;

(b)           The representations and warranties of Buyer contained in Section 8 shall be true and correct in all respects as of the date hereof and as of the Closing Date (as of made on and as of such date);

(c)           Buyer shall have performed and complied in all material respects with the obligations and covenants required by this Agreement to be performed or complied with by Buyer on or prior to the Closing Date.

12.           Closing Deliverables .

(a)           At the Closing, Buyer shall deliver the following:

(i)           to Seller, the Purchase Price less the Deposit, by wire transfer of immediately available funds to an account designated by Seller in writing;

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(ii)          to Seller’s counsel, Buyer’s written consent (which may be by e-mail) to release the Deposit to Seller;

(iii)         to Seller, a Bill of Sale in the form attached as Exhibit C-1 (the “ Bill of Sale ”), duly executed by Buyer; and

(iv)         to Seller, an Assignment and Assumption Agreement in the form attached as Exhibit C-2 (the “ Assignment and Assumption Agreement ”), duly executed by Buyer.

(b)          At the Closing, Seller shall deliver to Buyer the following:

(i)            a certificate signed by the Chief Financial Officer of Seller, dated the Closing Date, certifying that the conditions specified in Section 10(b), (c) and (d) have been satisfied as of the Closing Date;

(ii)           good standing certificates from the State of Delaware and the Commonwealth of Massachusetts dated as of a recent date from the Closing Date;

(iii)         the Bill of Sale, duly executed by Seller;

(iv)         the Assignment and Assumption Agreement, duly executed by Seller;

(v)          an assignment agreement, in the form attached as Exhibit C-3, to effect the transfer of the patent applications listed in Exhibit B from Seller to Buyer, duly executed by Seller and a notary public; and

(vi)         such other documents as are reasonably requested by Buyer, in a form supplied by Buyer to Seller not less than two (2) business days prior to the date scheduled for the Sale Hearing (as defined in Section 6(c) ), to effect the transfer of the Purchased Assets and the assumption of the Assumed Liabilities.

13.           Survival . Except in a case of fraud or intentional misrepresentation, the representations and warranties contained herein shall not survive the Closing.

14.           Limitation on Buyer’s Liability . Notwithstanding anything to the contrary contained in this Agreement, Buyer shall have no obligation in respect of any Excluded Liability.

15.           Seller’s Conduct Prior to Closing . From the date of this Agreement through the Closing, except with the prior written consent of Buyer, as otherwise contemplated or permitted by this Agreement or as required by the Bankruptcy Code or other applicable law, Seller shall:

(a)           upon commencement of the Chapter 11 Case, comply with notice and other procedural requirements of the Bankruptcy Code;

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(b)          use reasonable efforts to preserve intact the condition and value of the Purchased Assets,

(c)          use reasonable efforts to maintain its relations and goodwill with Pieris,

(d)          use reasonable efforts to continue to prosecute the patent applications listed on Exhibit B hereto, including without limitation, by filing any necessary responses or supplements to patent applications as requested by the applicable governmental authority and by maintaining registrations for patents to the extent they may issue, including timely payment of all fees associated therewith,

(e)          promptly advise Buyer in writing of the occurrence of any event that has had, or would reasonably be expected to have, a material adverse effect on the Purchased Assets,

(f)           not terminate, amend or waive any term of the Pieris Agreement or fail to perform in any material respect its obligations, if any, under the Pieris Agreement;

(g)          not sell, transfer or otherwise dispose of an interest in any of the Purchased Assets;

(h)          not dispose of, and use reasonable efforts to keep in effect, any material rights in, to, or for the use of any of the Intellectual Property, except for rights which expire or terminate in accordance with their terms;

(i)           not subject any Purchased Assets to any Encumbrances; and

(j)           keep Buyer reasonably informed concerning the Chapter 11 Case, the Sale Motion and the Bid Procedures Motion, including by providing copies of all Counterbids to Buyer in a timely manner that will permit Buyer to submit a revised bid.

16.          Seller’s Conduct After the Closing . Following the Closing until such time as the Chapter 11 Case is closed, Seller shall:

(a)           Provide such further assurances, including execution of such further documents supplied by Buyer, as Buyer may reasonably request, provided that Seller shall not be required to incur any material expense in connection therewith; and

(b)          Allocate the Purchase Price for tax purposes as directed by Buyer in a tax allocation schedule provided by Buyer to Seller not more than thirty (30) days after the Closing.

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17.          Public Announcements; Confidentiality .

(a)           Except as may be required by the Bankruptcy Court, the Bankruptcy Code, the federal securities laws or any other applicable law, prior to the Closing, neither of Buyer nor Seller will issue any press release or make any other public announcement relating to the transactions contemplated by this Agreement without the prior consent of the other party. Except as may be required by the Bankruptcy Court, the Bankruptcy Code, the federal securities laws or any other applicable law, following the Closing, (i) Seller shall not issue any public announcement regarding the transactions contemplated hereby without Buyer’s prior consent, and (ii) Buyer shall have the right to make a public announcement regarding the transactions contemplated hereby. Any party wishing to issue any such press release or make any such other public announcement that references any of the other parties other than to state that the acquisition has occurred or other information contained in the Sale Order, will afford such other party a reasonable opportunity to review and comment on such press release.

(b)            Buyer and Seller will each not use, and maintain strict confidentiality with respect to, all of the other party’s Confidential Information (as hereinafter defined) furnished by or on behalf of such other party except to the extent required by law or governmental order, provided, that following the Closing Date, all Confidential Information relating to the Purchased Assets, the Assumed Liabilities and the Program shall be deemed to be Confidential Information of Buyer. “ Confidential Information ” shall mean any and all non-public, confidential or proprietary information that, with respect to Buyer, is related to the Purchased Assets or the operations of Buyer and its respective Affiliates, and with respect to Seller, is related to the operations of Seller and its Affiliates, and that the disclosing party or its representatives have made available to the receiving party or its representatives, other than information that (i) is, at the time of disclosure to the receiving party, already in the receiving party’s possession; (ii) is or becomes generally available to the public other than as a result of a breach of this Agreement by the receiving party or its representatives; (iii) becomes available to the receiving party on a non-confidential basis from a source other than the disclosing party or their representatives, provided that such source is not bound by a confidentiality agreement or other legal or fiduciary obligation of secrecy to the disclosing party; or (iv) is independently developed by the receiving party.

18.           Termination .

(a)           This Agreement may be terminated prior to the Closing:

(i)            By written agreement of the parties;

(ii)           By either party, upon notice to the other, subject (except in the case of such other party’s failure to perform at the Closing, when required under Section 4 , its obligations under Section 12 ) to a period of five (5) business days within which to cure, if the other party is in material breach of its representations, warranties or covenants in this Agreement;

(iii)          By either party, upon notice to the other, if any governmental authority enjoins or otherwise prohibits the transactions contemplated by this Agreement, except in the event of a stay that by its terms is not permanent and that is lifted prior to the Outside Date (defined below);

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(iv)          By either party, upon notice to the other, if (A) the Bid Procedures Order is not entered by February 27, 2018, (B) the Sale Order is not entered by March 29, 2018, or (C) the Closing does not occur by April 3, 2018, or (solely if Buyer has been designated Back-Up Bidder) the Back-Up Bid Closing Date (the later of April 3, 2018 and the Back-Up Bid Closing Date, the “ Outside Date ”);

(v)           By Buyer, if Seller files a pleading that seeks (other than, as per the Sale Motion, on a contingent basis in the event of a higher or better offer) entry of, or the Bankruptcy Court enters, an order that the Purchased Assets be sold to a Person other than Buyer; or

(vi)           By Seller, upon notice to Buyer, if Seller determines in good faith, in the exercise of its fiduciary duties as debtor in possession and after consultation with its outside legal counsel, that the consummation of the sale of the Purchased Assets pursuant to the terms and conditions of this Agreement is no longer in the best interests of the creditors and/or bankruptcy estate of Seller by reason of developments after the date of this Agreement.

(b)       If Seller terminates this Agreement under Section 18(a)(ii) , or under Section 18(a)(iv) because a deadline specified therein has not been met because of Buyer’s breach, then Seller shall retain the Deposit as liquidated damages, which shall be Seller’s sole and exclusive remedy for breach of this Agreement by Buyer.

(c)       Following termination of this Agreement pursuant to Section 18(a), no party shall have any liability to the other party other than disposition of the Deposit and payment of the Breakup Fee, if any, pursuant to the terms of this Agreement. In the event of a termination of this Agreement pursuant to Section 18(a) , the terms and conditions of Sections 5 , 6(c) , 17 , 18(b) through (d) , and 19 through 26 shall survive.

(d)       For the avoidance of doubt, the provisions of Section 18(b) and (c) presuppose a valid termination of this Agreement. If a party invalidly terminates or attempts to terminate this Agreement, the dispute shall be determined on an expedited basis by the Bankruptcy Court, which may enter any order necessary or appropriate to provide the non-terminating party with the benefit of this Agreement.

19.              Expenses. Each of Seller and Buyer shall bear all of its own expenses in connection with the transaction contemplated by this Agreement. Buyer shall pay any taxes arising in connection with such transaction, except for any income or similar taxes of Seller.

20.              Notices. All notices and communications required or permitted under this Agreement shall be sent by nationally-recognized overnight delivery service, and contemporaneously a copy shall be sent by email, as follows:

Provided that the notice is served in strict compliance with the requirements set forth in this subsection, any notice shall be deemed received on the business day following its transmittal.

21.              Amendment; Waivers. This Agreement may only be amended by written agreement among all of the parties hereto. No waiver of any provision, or consent to any exception to the terms, of this Agreement shall be effective unless in writing and signed by the party to be bound and then only in the specific instance. Notwithstanding the foregoing, Buyer and Seller shall be bound by any modifications to which their counsel may agree on the record in the Bankruptcy Court, and if Buyer elects to submit a higher bid, such bid shall (except for the increased Purchase Price) be on the terms of this Agreement except as otherwise specified by Buyer and approved by the Bankruptcy Court on the record.

22.              Choice of Law; Jurisdiction. This Agreement shall be construed under the United States Bankruptcy Code or the laws of the Commonwealth of Massachusetts, as applicable. The Bankruptcy Court shall have exclusive jurisdiction over this Agreement, including determination of any dispute arising hereunder.

23.              Counterparts. This Agreement and any other documents delivered pursuant hereto may be executed in one or more counterparts, each of which will constitute an original, but all of which taken together shall constitute one and the same agreement. Delivery by email of a pdf of a signed counterpart shall have the same legal effect as physical delivery of a paper counterpart bearing an original inked signature.

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24.              Integration. This Agreement constitutes the entire agreement and understanding of the parties with respect to the subject matter of this Agreement and supersedes any prior agreement or understanding of the parties concerning such subject matter.

25.              No Third Party Beneficiaries. This Agreement is intended solely for the benefit of the parties hereto. The parties do not intend to confer the rights of a third party beneficiary upon any person or entity.

26.              Headings. The descriptive headings of the sections of this Agreement are solely for convenience of the parties and do not constitute a substantive part of this Agreement.

[Signature pages follow]

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IN WITNESS WHEREOF, this Agreement has been duly executed by each of the parties all as of the date first above written.

Exhibit A

Proposed Sale Order 

ORDER APPROVING SALE OF PROPERTY
FREE AND CLEAR OF LIENS AND CLAIMS

Upon consideration of the Debtor’s Motion for Order Authorizing Sale of Property Free and Clear of Liens and Claims [Docket No. __] (the “Motion”), pursuant to which debtor Enumeral Biomedical Holdings, Inc. (the “Seller”) seeks an order authorizing, among other things, the sale to XOMA Corporation (the “Purchaser”), free and clear of all liens, claims, ² security interests, pledges, charges, options, encumbrances and interests of any kind or nature, whether imposed by agreement, understanding, law, equity or otherwise (collectively, the “Encumbrances”), of all right, title and interest of Seller and its bankruptcy estate in and to intellectual property assets related to the Seller’s anti-PD-1 antibody program as more particularly described, and defined as the Purchased Assets, in the Asset Purchase Agreement by and between Seller and the Purchaser dated January 26, 2018 (the “Agreement”), for a price of $1,600,000 (the “Purchase Price”); no higher offers having been filed; this Court having held a hearing on the Motion on __________, 2018 (the “Sale Hearing”); this Court having considered the Motion, the Agreement, the other documents in the record concerning the proposed sale, and the statements of counsel presented at the Sale Hearing; it appearing to this Court that proper notice under the circumstances of the Motion and the sale proposed therein (the “Sale”) has been given pursuant to Fed. R. Bankr. P. 2002(a)(2) and (c), 6004 and 9014, and all other applicable law and rules; and good cause appearing therefor:

THE COURT HEREBY FINDS AND RULES ³ THAT:

Jurisdiction/Statutory and Procedural Bases

A.          This Court has jurisdiction to hear and determine the Motion pursuant to 28 U.S.C. §§ 157(b) and 1334(a) and L.R.D. Mass. 201. This is a core proceeding pursuant to 28 U.S.C. § 157(b)(2). Entry of a final order on the Motion is proper under Article III of the United States Constitution. Venue is proper in this District and in this Court pursuant to 28 U.S.C. §§ 1408 and 1409.

B.          This Order constitutes a final order within the meaning of 28 U.S.C. § 158(a). Notwithstanding Fed. R. Bankr. P. 6004(h) and 6006(d), and to any extent necessary under Fed. R. Bankr. P. 9014 and Fed. R. Civ. P. 54(b) as made applicable by Fed. R. Bankr. P. 7054, this Court expressly finds that there is no just reason for delay in the implementation of this Order, expressly directs entry of judgment as set forth herein, and determines that this Order shall take effect immediately.

C.          The statutory bases for the relief requested in the Motion are the following sections of title 11, United States Code (“Code Section”): 105(a), 363 and 365. The procedural bases for the relief sought in the Motion are Fed. R. Bankr. P. 2002, 6004, 6006, 9007 and 9014.

Notice of the Sale

D.          Actual written notice of the Motion, the proposed Sale, the right to object thereto and the deadline and filing place for such objections, and the date, time and place of the Sale Hearing has been served upon all parties in interest, including (i) all entities known to the Seller or in the public record as claiming an interest in the Purchased Assets, (ii) all parties that have entered an appearance or requested service of notices in these jointly administered cases, (iii) all creditors of the Debtors that have filed proofs of claim or are listed in the schedules of liability filed by each of the Debtors, (iv) all shareholders of the Seller on the list of equity security holders filed by the Seller; (v) the Internal Revenue Service and the Massachusetts Department of Revenue, and (vi) the Office of the United States Trustee (District 1). The service of such notice was good, sufficient and appropriate under the circumstances in accordance with Code Sections 102(1), 363 and 365, and Fed. R. Bankr. P. 2002, 6004 and 9014, in light of the relief granted pursuant to this Order; and no further notice need be given in respect of the Sale. All parties in interest have been afforded reasonable notice and opportunity to be heard with respect to the Motion.