ISR IsoRay Inc

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Delaware		001-33407		41-1458152
(State or Other Jurisdiction of Incorporation)		(Commission File Number)		(IRS Employer Identification No.)

2401 Elliott Avenue, Suite 320, Seattle, Washington		98121
(Address of Principal Executive Offices)		(Zip Code)

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☐	Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)

☐	Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)

☐	Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))

☐	Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))

Title of each class		Trading Symbol(s)		Name of each exchange on which registered
Common Stock, par value $0.001 per share		CATX		NYSE American

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Exhibit No.		Description
10.1*+		Investment Agreement, dated as of January 8, 2024, by and among Perspective Therapeutics, Inc. and Lantheus Alpha Therapy, LLC.
10.2*		Asset Purchase Agreement, dated as of January 8, 2024, by and among Perspective Therapeutics, Inc. and Progenics Pharmaceuticals, Inc.
10.3*+		Option Agreement, dated as of January 8, 2024, by and among Perspective Therapeutics, Inc. and Lantheus Alpha Therapy, LLC.
104		The cover page from this Current Report on Form 8-K, formatted in Inline XBRL.

*	Certain portions of this exhibit (indicated by asterisks) have been omitted pursuant to Item 601(b)(10)(iv) of Regulation S-K.

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Certain schedules and exhibits have been omitted pursuant to Item 601(a)(5) of Regulation S-K. The Company will furnish supplementally a copy of any omitted schedule or exhibit to the Securities and Exchange Commission upon request. The Company may request confidential treatment pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended, for any schedules or exhibits so furnished.

	PERSPECTIVE THERAPEUTICS, INC.
Date: January 17, 2024	By:	/s/ Johan (Thijs) Spoor
		Johan (Thijs) Spoor
		Chief Executive Officer

 

Exhibit 10.1

 

 

Certain information has been excluded from this exhibit (indicated by “[***]”) because such information is both (i) not material and (ii) the type that the company treats as private or confidential.

 

 

 

INVESTMENT AGREEMENT

 

 

This Investment Agreement (this “Agreement”), dated as of January 8, 2024, by and between Perspective Therapeutics, Inc., a Delaware corporation (the “Company”), with its principal place of business at 2401 Elliott Avenue, Suite 320, Seattle, Washington 98121 and Lantheus Alpha Therapy, LLC, a Delaware limited liability company (the “Investor”) with its principal place of business at 201 Burlington Road, South Building, Bedford, MA 01730. Capitalized terms used herein but not otherwise defined shall have the meanings given to them in Section 1.5.

 

RECITALS

 

A.         On the terms and subject to the conditions set forth in this Agreement and pursuant to Section 4(a)(2) of the Securities Act of 1933, as amended (the “Securities Act”), the Company desires to issue and sell to the Investor, and the Investor desires to purchase from the Company at the Closing (as hereinafter defined), shares of common stock, $0.001 par value, of the Company (the “Company Common Stock”), in an amount and at the Per Share Price as set forth herein.

 

B.         The shares of Company Common Stock to be issued to the Investor at the Closing shall be referred to in this Agreement as the “Shares”.

 

C.         Concurrently with the execution and delivery of this Agreement, the parties are executing and delivering the Option Agreement and the Asset Purchase Agreement.

 

AGREEMENT

 

Now, Therefore, in consideration of the mutual representations, warranties, covenants and agreements contained in this Agreement, the receipt and adequacy of which are hereby acknowledged, the Company and the Investor agree as follows:

 

ARTICLE I
    PURCHASE AND SALE

 

1.1

 

(a)    Purchase. Subject to the terms and conditions of this Agreement, the Investor agrees to purchase from the Company, at a price per share equal to the Per Share Price, a number of shares of Company Common Stock equal to the Purchased Shares Number (such aggregate price, the “Share Purchase Price”). The “Purchased Shares Number” means an amount (rounded down to the nearest whole number) equal to the lesser of (a)(i) $33,200,000 divided by (ii) the Per Share Price and (b) the Common Stock Cap.

 

(b)    Common Stock Cap. Notwithstanding anything to the contrary in this Agreement or any of the other Transaction Documents and for the avoidance of doubt, no shares of Company Common Stock or other securities will be issued by the Company to the Investor or its Attribution Parties at the Closing to the extent that such issuance would result in the Investor or its Attribution Parties beneficially owning in excess of 19.99% of the outstanding shares of Company Common Stock on the date hereof, or 56,342,355 Shares (the “Common Stock Cap”)

 

 

1.2         Closing. Subject to the terms and conditions set forth in this Agreement, at the Closing, the Company shall issue and sell to the Investor, and the Investor shall purchase from the Company, a number of Shares equal to the Purchased Shares Number. The closing of the purchase and sale of the Shares to the Investor by the Company (the “Closing”) shall occur as promptly as practicable, and in any event within three (3) Business Days, following such date on which the conditions to the Closing set forth in Article VI (other than those conditions that by their nature are to be satisfied at the Closing, but subject to the satisfaction or waiver of those conditions at such time) have been satisfied, or to the extent permitted by applicable Law, waived; provided that to the extent practicable, the Closing shall occur contemporaneously with the closing of the first Qualified Transaction after the date hereof. The Closing shall be conducted remotely via the electronic exchange of documents and signatures, or at such other place and time as the Company and the Investor may mutually agree upon. The date on which the Closing actually occurs is referred to herein as the “Closing Date”. Notwithstanding anything to the contrary herein, the Investor or any of its designated Affiliates may be the actual purchaser of the Shares, as determined by the Investor in its reasonable discretion and subject to the Company’s consent (not to be unreasonably withheld, conditioned or delayed) (such designated Affiliate, the “Affiliate Investor”).

 

1.3         Payment. At the Closing, (a) the Investor shall pay to the Company the Share Purchase Price in United States dollars in immediately available funds, by wire transfer to the Company’s account as set forth in instructions previously delivered to the Investor, and (b) the Company shall irrevocably instruct Computershare Trust Company, N.A. (the “Transfer Agent”) to deliver to the Investor the Shares, free and clear of all Liens (other than as provided in this Agreement or restrictions imposed by applicable securities laws), in book-entry form in the name of the Investor and a book-entry statement of the Transfer Agent showing the Investor as the registered holder of the Shares on and as of the Closing Date; provided, however, that the requirement to deliver a book-entry statement may be satisfied via email confirmation by the Transfer Agent of issuance of the Shares on the date of Closing with the book-entry statement to be delivered within two (2) Business Days of the Closing.

 

1.4         Closing Deliverables.

 

(a)         Company. At the Closing, the Company shall:

 

(i)         deliver or cause to be delivered to the Investor the following:

 

  (1)         a copy of the irrevocable instructions to the Transfer Agent instructing the Transfer Agent to deliver the Shares, registered in the name of the Investor;

 

  (2)         the Registration Rights Agreement, duly executed by the Company;

 

  (3)         confirmation that the Company Common Stock has been approved for listing on the NYSE, subject to official notice of issuance;

 

  (4)         a certificate signed by the Secretary of the Company, in form and substance reasonably satisfactory to the Investor, certifying as to (a) the Company’s amended and restated certificate of incorporation (the “Charter”) and the Company’s amended and restated bylaws (the “Bylaws”); (b) the resolutions of the Company’s board of directors (the “Board”) approving the Transaction Documents and the transactions contemplated thereby; and (c) a good standing certificate with respect to the Company from the Delaware Secretary of State, dated no earlier than two (2) Business Days prior to the Closing.

 

(b)         Investor. At the Closing, the Investor shall deliver or cause to be delivered to the Company the following:

 

(i)         the Registration Rights Agreement, duly executed by the Investor;

 

(ii)        a fully completed and duly executed customary Accredited Investor Qualification Questionnaire in a form reasonably acceptable to the parties;

 

(iii)       a fully completed and duly executed customary Bad Actor Questionnaire in a form reasonably acceptable to the parties; and

 

(iv)       the Share Purchase Price in accordance with Section 1.3.

 

 

(c)         Further Assurances. On or prior to the Closing Date and thereafter, the parties hereto shall cooperate with each other and use commercially reasonable efforts to execute and deliver or cause to be executed and delivered such additional documents and take such additional actions as the parties reasonably may deem to be necessary in order to consummate the Closing as promptly as reasonably practicable.

 

1.5         Defined Terms Used in This Agreement. In addition to the terms defined elsewhere in this Agreement, the following terms have the meanings indicated:

 

“Affiliate” means, with respect to any Person, any other Person that directly, or indirectly through one or more intermediaries, controls or is controlled by, or is under common control with, such Person. For the purposes of this definition, “control,” when used with respect to any Person, means the possession, direct or indirect, of the power to direct or cause the direction of the management and policies of such Person, whether through the ownership of voting securities, by contract or otherwise; and the terms of “affiliated,” “controlling” and “controlled” have meanings correlative to the foregoing.

 

“Asset Purchase Agreement” means that certain Asset Purchase Agreement, dated as of the date hereof, by and between the Company and the Investor.

 

“Attribution Parties” means Investor (together with Investor’s Affiliates, and any other Person acting as a group together with the Investor or any of the Investor’s Affiliates).

 

“Bankruptcy Law” means Title 11, U.S. Code, or any similar federal or state law for the relief of debtors.

 

“Business Day” means any day except Saturday, Sunday and any day which shall be a legal holiday or a day on which banking institutions in the state of New York generally are authorized or required by law or other government actions to close.

 

“Change of Control” means the occurrence of one of the following, whether in a single transaction or a series of transactions:

 

(a)        any “person” or “group” (as such terms are used in Sections 13(d) and 14(d) of the Exchange Act) (other than the Company, its wholly-owned Subsidiaries or the employee benefit plans of the Company and its wholly-owned Subsidiaries) who files a Schedule TO or any schedule, form or report under the Exchange Act disclosing or with respect to whom it otherwise becomes known (through public disclosure or otherwise) to the Company that such person or group has become the “beneficial owner” (as defined in Rules 13d-3 and 13d-5 under the Exchange Act), directly or indirectly, of 50% or more of the total voting power of the outstanding voting stock of the Company, other than as a result of a transaction in which (1) the holders of securities that represented 100% of the outstanding voting stock of the Company immediately prior to such transaction are substantially the same as the holders of securities that represent 50% or more of the outstanding voting stock of the surviving Person or its Parent Entity immediately following such transaction and (2) the holders of securities that represented 100% of the outstanding voting stock of the Company immediately prior to such transaction own directly or indirectly voting stock of the surviving Person or its Parent Entity in substantially the same proportion to each other as immediately prior to such transaction;

 

(b)         the merger or consolidation of the Company with or into another Person or the merger of another Person with or into the Company, or the sale, transfer or lease of all or substantially all of the assets of the Company (determined on a consolidated basis), whether in a single transaction or a series of related transactions, to another Person, or any recapitalization, reclassification or other transaction in which all or substantially all of the Company Common Stock is or is entitled to be exchanged for or converted into cash, securities or other property, other than (1) a merger or consolidation transaction following which holders of securities that represented 100% of the voting stock of the Company immediately prior to such transaction own directly or indirectly (in substantially the same proportion to each other as immediately prior to such transaction, other than changes in proportionality as a result of any cash/stock election provided under the terms of the definitive agreement regarding such transaction) at least 50% of the voting stock of the surviving Person or Parent Entity in such merger or consolidation transaction immediately after such transaction, and (2) a sale, transfer or lease of all or substantially all of the assets of the Company to a Subsidiary or a Person that becomes a Subsidiary of the Company;

 

 

(c)         shares of Company Common Stock are not listed for trading on any United States national securities exchange or cease to be traded in contemplation of a de-listing (other than as a result of a transaction described in clause (b) above); or

 

(d)         the stockholders of the Company approve any plan or proposal for the liquidation or dissolution of the Company.

 

“Confidentiality Agreement” means that certain Mutual Confidentiality Disclosure Agreement effective as of [***] by and between the Investor or its Affiliate, and the Company, as amended and restated or otherwise modified from time to time, including by Section 5.1 of the Option Agreement and Section 4.5 of this Agreement.

 

“DGCL” means the General Corporation Law of the State of Delaware, as amended.

 

“GAAP” means generally accepted accounting principles in the United States, consistently applied.

 

“Governmental Authority” means any multi-national, federal, state, local, municipal or other government authority of any nature (including any governmental division, subdivision, department, agency, bureau, branch, office, commission, council, court or other tribunal, as well as any securities exchange or securities exchange authority, including The New York Stock Exchange).

 

“Health Care Laws” means Title XVIII of the Social Security Act, 42 U.S.C. §§ 1395-1395hhh (the Medicare statute); Title XIX of the Social Security Act, 42 U.S.C. §§ 1396-1396v (the Medicaid statute); the Federal Anti-Kickback Statute, 42 U.S.C. § 1320a-7b(b); the civil False Claims Act, 31 U.S.C. §§ 3729 et seq.; the criminal False Claims Act 42 U.S.C. 1320a-7b(a); any criminal laws relating to health care fraud and abuse, including but not limited to 18 U.S.C. Sections 286, 287, 1347 and 1349 and the health care fraud criminal provisions under the Health Insurance Portability and Accountability Act of 1996, 42 U.S.C. §§ 1320d et seq., (“HIPAA”); the Civil Monetary Penalties Law, 42 U.S.C. §§ 1320a-7a and 1320a-7b; the Physician Payments Sunshine Act, 42 U.S.C. § 1320a-7h; the Exclusion Laws, 42 U.S.C. § 1320a-7; HIPAA, as amended by the Health Information Technology for Economic and Clinical Health Act, 42 U.S.C. §§ 17921 et seq.; the Federal Food, Drug, and Cosmetic Act, 21 U.S.C. §§ 301 et seq.; the regulations promulgated pursuant to such laws; and any similar federal, state and local laws and regulations

 

“Knowledge” means, with respect to the Company, the actual knowledge of [***], [***], [***] or [***], [***].

 

“Law” means any national, federal, state, local, municipal, foreign, supranational or other law, statute, constitution, treaty, principle of common law, directive, resolution, ordinance, code, edict, order, rule, guideline, settlement, regulation or requirement issued, enacted, adopted, promulgated, entered, implemented or otherwise put into effect by or under the authority of any Governmental Authority.

 

“Lien” means a lien, charge, pledge, security interest, encumbrance, right of first refusal, mortgage, claim, easement, right-of-way, option, title retention agreement, preemptive right or other restriction, whether based in law or contract.

 

“Material Adverse Effect” means any change, event, development or effect that, individually or in the aggregate, has had or would reasonably be expected to result in a material adverse effect, in or affecting (i) the business, properties or other assets, liabilities, general affairs, management, financial position, stockholders’ equity, development programs, prospects or results of operations of the Company and its Subsidiaries, taken as a whole, or (ii) the ability of the Company to perform its obligations under this Agreement, or the other Transaction Documents or to consummate the Transactions.

 

 

“NYSE” means the NYSE American LLC or, in the event that after the date hereof Company Common Stock is listed on The New York Stock Exchange, The New York Stock Exchange.

 

“Option Agreement” means that certain Option Agreement, dated as of the date hereof, by and between the Company and the Investor.

 

“Parent Entity” means, with respect to any Person, any other Person of which such first Person is a direct or indirect wholly owned Subsidiary.

 

“Per Share Price” means an amount in cash equal to the lesser of (i) $0.59 and (ii) the same price per share as shares of Company Common Stock are sold to the public in the first Qualified Transaction following the date hereof.

 

“Person” means an individual or a corporation, partnership, trust, incorporated or unincorporated association, joint venture, limited liability company, joint stock company, government (or an agency or political subdivision thereof) or other entity of any kind.

 

“Qualified Private Placement” means, other than Excluded Issuances, (a) a private placement of Company Common Stock raising at least $50,000,000 of gross proceeds (before including proceeds from Shares sold to the Investor pursuant to Section 1.1), before deduction of underwriting fees or other expenses, (i) conducted in compliance with applicable exemptions from the registration and prospectus delivery requirements of the Securities Act, and the registration and qualification requirements of all applicable securities laws of the states of the United States, (ii) conducted on terms that would not require stockholder approval under the listing rules of the NYSE, and (iii) supported by the opinion of the Company’s legal counsel in form and substance reasonably satisfactory to the Investor that such private placement is exempt from such registration requirements, or (b) a registered direct offering of Company Common Stock pursuant to an effective registration statement under the Securities Act raising at least $50,000,000 of gross proceeds (before including proceeds from Shares sold to the Investor at the Closing), before deduction of underwriting fees or other expenses and conducted on terms that would not require stockholder approval under the listing rules of the NYSE.

 

“Qualified Public Offering” means, other than Excluded Issuances, the sale of Company Common Stock to the public in an underwritten public offering pursuant to an effective registration statement under the Securities Act raising at least $50,000,000 of gross proceeds (before including proceeds from Shares sold to the Investor at the Closing), before deduction of underwriting fees or other expenses.

 

“Qualified Transaction” means a Qualified Public Offering or Qualified Private Placement.

 

“Standstill Period” means the period commencing on the date hereof and ending on the date that is two hundred and seventy (270) days following the date hereof; provided, that, the Standstill Period shall immediately terminate and expire (and the restrictions of Section 4.5 shall cease to apply and shall be of no further force and effect) at the earliest to occur of: (i) the Company entering into a definitive written agreement to consummate a Change of Control (regardless of the form of such transaction), (ii) the Board approving (or, in the case of a tender or exchange offer, failing to recommend against such tender or exchange offer within ten (10) Business Days of the commencement thereof) a transaction that, if consummated, would result in a Change of Control, (iii) the Company’s material breach of its obligations under the Transaction Documents which is not cured within seven (7) Business Days of notice thereof by Investor (provided that such cure period shall not apply if the breach is not curable) and (iii) the expiration of the ROFO Consideration Period, the expiration of the Third Party Offer Consideration Period or the delivery of the Competing Instrument Notice (each, as defined in the Option Agreement) under the Option Agreement.

 

“Subsidiary”, when used with respect to any Person, means any corporation, limited liability company, partnership, association, trust or other entity of which (x) securities or other ownership interests representing more than 50% of the ordinary voting power (or, in the case of a partnership, more than 50% of the general partnership interests) or (y) sufficient voting rights to elect at least a majority of the board of directors or other governing body are, as of such date, owned by such Person or one or more Subsidiaries of such Person or by such Person and one or more Subsidiaries of such Person.

 

 

“Transaction Documents” means this Agreement, the Asset Purchase Agreement, the Option Agreement and the Registration Rights Agreement and the schedules, annexes and exhibits attached hereto and thereto.

 

“Transactions” means the transactions contemplated by the Transaction Documents.

 

ARTICLE II
    REPRESENTATIONS AND WARRANTIES OF THE COMPANY

 

The Company hereby represents and warrants to the Investor the following as of the date hereof and the Closing Date as follows:

 

2.1         Organization, Good Standing and Power.

 

(a)         The Company and each of its Subsidiaries have been (i) duly organized and are validly existing and in good standing under the laws of their respective jurisdiction of organization, with power and authority (corporate and other) to own and/or lease its properties and conduct its business as described in the reports filed by the Company with the United States Securities and Exchange Commission (the “Commission”) pursuant to the reporting requirements of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), since December 31, 2022, including, the Company’s most recent Transition Report on Form 10-KT, and (ii) duly qualified as a foreign entity for the transaction of business and are in good standing under the laws of each other jurisdiction in which they own or lease properties or conduct any business so as to require such qualification, except, in the case of this clauses (i) or (ii), where the failure to be so qualified or in good standing would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect on the Company.

 

(b)        The Company owns directly or indirectly, all of the equity interests of the Subsidiaries free and clear of any lien, charge, security interest, encumbrance, right of first refusal or other restriction, and all the equity interests of the Subsidiaries are validly issued and are fully paid, nonassessable and free of preemptive and similar rights. The Company does not own or control, directly or indirectly, any corporation, association or other entity other than the subsidiaries listed in Exhibit 21.1 to the Company’s Transition Report on Form 10-KT for the transition period ended December 31, 2023 or in Exhibit 21.1 to the Company’s Annual Report on Form 10-K for the most recently ended fiscal year and other than (i) those subsidiaries not required to be listed on Exhibit 21.1 by Item 601 of Regulation S-K under the Exchange Act and (ii) those subsidiaries formed or acquired since the last day of the most recently ended fiscal year.

 

2.2         Authorization; Enforcement. The Company has the requisite corporate power and authority to enter into and perform the Transaction Documents and to issue and sell the Shares at the Closing. The execution, delivery and performance of this Agreement by the Company and the consummation by it of the Transactions have been duly and validly authorized by all necessary corporate action, and, no further consent or authorization of the Board or stockholders is required. When executed and delivered by the Company, this Agreement shall constitute a valid and binding obligation of the Company enforceable against the Company in accordance with its terms, except as such enforceability may be limited by applicable bankruptcy, reorganization, moratorium, liquidation, conservatorship, receivership or similar laws relating to, or affecting generally the enforcement of, creditor’s rights and remedies or by other equitable principles of general application. The Board adopted resolutions approving the Transactions at a duly called and held meeting.

 

2.3         Issuance of Shares. The Shares to be issued and sold by the Company to the Investor at the Closing will have been duly and validly authorized and, when issued and delivered against payment therefor as provided in this Agreement, will (i) be duly and validly issued and fully paid and non-assessable; and (ii) be free and clear of any Lien or restriction on transfer, other than restrictions on transfer under any Transaction Document or applicable state or federal securities laws; and the issuance of the Shares is not subject to any preemptive or similar rights, except as have been validly waived or complied with in connection with the offering of the Shares. The Shares, when issued, will have the terms and conditions and entitle the holders thereof to the rights applicable to Company Common Stock set forth in the Charter.

 

 

2.4         No Conflicts; Governmental Approvals. The issuance and sale of the Shares and the compliance by the Company with this Agreement and the consummation of the Transactions will not conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default (or an event which with notice or lapse of time or both would become a default) under, (i) any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument to which the Company or any of its Subsidiaries is a party or by which the Company or any of its Subsidiaries is bound or to which any of the property or assets of the Company or any of its Subsidiaries is subject (and shall not give to others any rights of termination, amendment, acceleration or cancellation of the same), (ii) the Charter and the Company’s amended and restated bylaws (the “Bylaws”), or (iii) any statute or any judgment, order, rule or regulation of any Governmental Authority having jurisdiction over the Company or any of its properties, except, in the case of clauses (i) and (iii) for such defaults, breaches, or violations that would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect; and no consent, approval, authorization, order, registration or qualification of or with any such Governmental Authority is required for the issue and sale of the Shares or the consummation by the Company of the Transactions, except for filings pursuant to applicable federal or state securities or Blue Sky laws, which have been made or will be made in a timely manner.

 

2.5         NYSE. The Company Common Stock is currently listed on the NYSE. The Company is in compliance in all material respects with applicable NYSE continued listing requirements and has no Knowledge of any facts that would reasonably lead to delisting or suspension of the Company Common Stock from NYSE or the termination of the registration of the Company Common Stock under the Exchange Act, and has not received any notification that the Commission or NYSE is contemplating such delisting, suspension or termination.

 

2.6         Reserved.

 

2.7         Brokers and Finders. Except as set forth on Schedule 2.7 the Company has not employed any broker or finder in connection with the Transactions.

 

2.8         SEC Documents. The Company represents and warrants that as of the date hereof, the Company Common Stock is registered pursuant to Section 12(b) of the Exchange Act. The Company has timely filed or furnished all reports, schedules, forms, statements and other documents required to be filed by it with the Commission pursuant to the reporting requirements of the Exchange Act, the Securities Act, the Sarbanes-Oxley Act of 2002 and the rules and regulations of the Commission promulgated thereunder (the foregoing materials, including all exhibits thereto and documents incorporated by reference therein, and including all registration statements and prospectuses filed with the Commission, being collectively referred to herein as the “SEC Documents”). At the times of their respective filings, such reports, schedules, forms, statements and other documents of the Company (i) complied in all material respects with the requirements of the Exchange Act, the Securities Act, the Sarbanes-Oxley Act of 2002 and the rules and regulations promulgated thereunder and (ii) did not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading. Each of the certifications and statements relating to the SEC Documents required by: (A) Rule 13a-14 or Rule 15d-14 under the Exchange Act; (B) 18 U.S.C. §1350 (Section 906 of the Sarbanes-Oxley Act); or (C) any other rule or regulation promulgated by the Commission or applicable to the SEC Documents is accurate and complete, and complies as to form and content in all material respects with all applicable laws.

 

2.9         No Material Adverse Effect. Since the date of the most recent financial statements of the Company included or incorporated by reference in the SEC Documents, there has not been (i) any Material Adverse Effect, or any development that would reasonably be expected to result in a Material Adverse Effect, (ii) any transaction which is material to the Company and the Subsidiaries taken as a whole, (iii) any obligation or liability, direct or contingent (including any off-balance sheet obligations), incurred by the Company or the Subsidiaries, which is material to the Company and the Subsidiaries taken as a whole, (iv) any material change in the capital stock (other than (A) the grant of additional options or other equity awards under the Company’s equity incentive plans described in the SEC Documents, (B) changes in the number of outstanding Company Common Stock due to the issuance of shares upon the exercise or conversion of securities exercisable for, or convertible into, Company Common Stock described in the SEC Documents, (C) the issuance of Shares pursuant to the ATM Agreement, (D) as a result of the issuance of Shares, (D) any repurchases of capital stock of the Company, (E) as described in the SEC Documents, or (F) otherwise publicly announced) or outstanding long-term indebtedness of the Company or the Subsidiaries or (v) any dividend or distribution of any kind declared, paid or made on the capital stock of the Company or any Subsidiary, other than in each case above in the ordinary course of business or as otherwise disclosed in the SEC Documents.

 

 

2.10       Capitalization. The authorized capital stock of the Company consists, as of January 8, 2024, of (i) 750,000,000 shares of Company Common Stock, of which 281,852,702 shares are issued and outstanding and (ii) 7,000,000 shares of preferred stock, $0.001 par value per share, none of which is issued and outstanding. All of the issued shares of capital stock of the Company have been duly and validly authorized and issued and are fully paid and non-assessable and conform in all material respects to the description thereof contained in the SEC Documents. Except as described in the SEC Documents and other ordinary course issuances since September 30, 2023 and ATM Sales, there are (i) no outstanding shares of capital stock of, or other equity or voting interests in, the Company, (ii) no outstanding securities convertible into or exchangeable for shares of capital stock of, or other equity or voting interests in, the Company other than obligations under employee stock option plans disclosed in the SEC Documents (as defined below), (iii) no outstanding options, warrants, rights or other commitments or agreements to acquire from the Company or any Subsidiary, or that obligate the Company or any Subsidiary to issue, any capital stock of, or other equity or voting interests (or voting debt) in, or any securities convertible into or exchangeable for shares of capital stock of, or other equity or voting interests in, the Company other than obligations under employee stock option plans disclosed in the SEC Documents (as defined below), (iv) no obligations of the Company or any Subsidiary to grant, extend or enter into any subscription, warrant, right, debt, convertible or exchangeable security or other similar agreement or commitment relating to any capital stock of, or other equity or voting interests in, the Company (the items in clauses (i), (ii), (iii) and (iv) being referred to collectively as “Company Securities”) and (v) no other obligations by the Company or any of its Subsidiaries to make any payments based on the price or value of any Company Securities.

 

2.11        No Preferential Rights. (i) No person has the right, contractual or otherwise, to cause the Company to issue or sell to such Person any Company Common Stock or shares of any other capital stock or other securities of the Company (other than upon the exercise of options or other equity awards or warrants to purchase Company Common Stock or upon the exercise of options that may be granted from time to time under the Company’s equity incentive plans or employee stock purchase plans or as inducement awards), (ii) no Person has any preemptive rights, rights of first refusal, or any other rights (whether pursuant to a “poison pill” provision or otherwise) to purchase any Company Common Stock or shares of any other capital stock or other securities of the Company from the Company which have not been duly waived with respect to the offering contemplated hereby, and (iii) no Person has the right, contractual or otherwise, to require the Company to register under the Securities Act any Company Common Stock or shares of any other capital stock or other securities of the Company, except in each case for such rights as have been waived on or prior to the date hereof.

 

2.12         Accountants. Assure CPA, LLC, who have certified certain financial statements of the Company, are independent public accountants as required by the Securities Act and the rules and regulations of the Commission thereunder.

 

2.13         Enforceability of Agreements. To the Company’s knowledge, all agreements between the Company and third parties filed as exhibits to documents incorporated by reference into the SEC Documents, other than such agreements that have expired by their terms or whose termination is disclosed in documents filed by the Company on the Interactive Data Electronic Application system when used by the Commission (collectively, “EDGAR”), are, assuming the due authorization, execution and delivery of such agreement by the respective counterparties, legal, valid and binding obligations of the Company and, to the Company’s knowledge, enforceable in accordance with their respective terms, except to the extent that (i) enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’ rights generally and by general equitable principles and (ii) the indemnification provisions of certain agreements may be limited by federal or state securities laws or public policy considerations in respect thereof, and except for any unenforceability that, individually or in the aggregate, would not reasonably be expected to have a Material Adverse Effect.

 

2.14        No Litigation. There are no legal or governmental proceedings pending or, to the Company’s knowledge, threatened to which the Company or any Subsidiary is a party or to which any of the properties of the Company or any Subsidiary is subject (i) other than proceedings accurately described in all material respects in the SEC Documents and proceedings that would not reasonably be expected to have a Material Adverse Effect on the Company and its Subsidiaries, taken as a whole, or on the power or ability of the Company to perform its obligations under this Agreement or to consummate the transactions contemplated by this Agreement or (ii) that are required to be described in the SEC Documents and are not so described.

 

 

2.15         Licenses and Permits. The Company and the Subsidiaries possess or have obtained, all licenses, certificates, consents, orders, approvals, permits and other authorizations issued by, and have made all declarations and filings with, the appropriate federal, state, local or foreign Governmental Authorities that are necessary for the ownership or lease of their respective properties or the conduct of their respective businesses as currently conducted, as described in the SEC Documents (the “Permits”), except where the failure to possess, obtain or make the same would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect. Neither the Company nor any Subsidiary has received written notice of any proceeding relating to revocation or modification of any such Permit or has any reason to believe that such Permit will not be renewed in the ordinary course, except where the failure to obtain any such renewal would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.

 

2.16         No Material Defaults. Neither the Company nor any Subsidiary has defaulted on any installment on indebtedness for borrowed money or on any rental on one or more long-term leases, which defaults, individually or in the aggregate, would reasonably be expected to have a Material Adverse Effect. The Company has not filed a report pursuant to Section 13(a) or 15(d) of the Exchange Act since the filing of its last Annual Report on Form 10-K, indicating that it (i) has failed to pay any dividend or sinking fund installment on preferred stock or (ii) has defaulted on any installment on indebtedness for borrowed money or on any rental on one or more long-term leases, which defaults, individually or in the aggregate, would reasonably be expected to have a Material Adverse Effect.

 

2.17         Certain Market Activities. Neither the Company, nor any Subsidiary, nor, to the knowledge of the Company, any of their respective directors, officers or controlling persons has taken, directly or indirectly, any action designed, or that has constituted or would cause or result in, under the Exchange Act or otherwise, the stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Shares.

 

2.18         Broker/Dealer Relationships. Neither the Company nor any Subsidiary (i) is required to register as a “broker” or “dealer” in accordance with the provisions of the Exchange Act or (ii) directly or indirectly through one or more intermediaries, controls or is a “person associated with a member” or “associated person of a member” (within the meaning set forth in the Financial Industry Regulatory Authority (“FINRA”) Manual).

 

2.19         Taxes. The Company and the Subsidiaries have filed all federal, state, local and foreign tax returns which have been required to be filed and paid all taxes shown thereon through the date hereof, to the extent that such taxes have become due and are not being contested in good faith, except where the failure to do so would not reasonably be expected to have a Material Adverse Effect. Except as otherwise disclosed in or contemplated by the SEC Documents, no tax deficiency has been determined adversely to the Company or any Subsidiary which has had, or would reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect. The Company has no knowledge of any federal, state or other governmental tax deficiency, penalty or assessment which has been or might be asserted or threatened against it which would reasonably be expected to have a Material Adverse Effect.

 

2.20         Title to Real and Personal Property. The Company and the Subsidiaries have good and valid title in fee simple to all items of real property and good and valid title to all personal property described in the SEC Documents as being owned by them that are material to the businesses of the Company or such Subsidiary, in each case free and clear of all liens, encumbrances and claims, except those that (i) do not materially interfere with the use made and proposed to be made of such property by the Company and the Subsidiaries or (ii) would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect. Any real property described in the SEC Documents as being leased by the Company and the Subsidiaries is held by them under valid, existing and enforceable leases, except those that (A) do not materially interfere with the use made or proposed to be made of such property by the Company or the Subsidiaries or (B) would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.

 

 

2.21        Intellectual Property. To the Company’s knowledge, the Company and the Subsidiaries own or possess adequate enforceable rights to use all patents, patent applications, trademarks (both registered and unregistered), trade names, trademark registrations, service marks, service mark registrations, Internet domain name registrations, copyrights, copyright registrations, licenses and know-how (including trade secrets and other unpatented and/or unpatentable proprietary or confidential information, systems or procedures) (collectively, the “Intellectual Property”), necessary for the conduct of their respective businesses as conducted as of the date hereof, except to the extent that the failure to own or possess adequate rights to use such Intellectual Property would not, individually or in the aggregate, reasonably be expected to result in a Material Adverse Effect. The Company and the Subsidiaries have not received any written notice of any claim of infringement or conflict which asserted Intellectual Property rights of others, which infringement or conflict, if the subject of an unfavorable decision, would reasonably be expected to result in a Material Adverse Effect. There are no pending, or to the Company’s knowledge, threatened judicial proceedings or interference proceedings challenging the Company’s or any Subsidiary’s rights in or to or the validity of the scope of any of the Company’s or its Subsidiaries’ patents, patent applications or proprietary information. To the Company’s knowledge, no other entity or individual has any right or claim in any of the Company’s or any of its Subsidiary’s patents, patent applications or any patent to be issued therefrom by virtue of any contract, license or other agreement entered into between such entity or individual and the Company or any Subsidiary or by any non-contractual obligation, other than by written licenses granted by the Company or any Subsidiary. The Company has not received any written notice of any claim challenging the rights of the Company or its Subsidiaries in or to any Intellectual Property owned, licensed or optioned by the Company or any Subsidiary which claim, if the subject of an unfavorable decision, would reasonably be expected to result in a Material Adverse Effect.

 

2.22         Compliance with Applicable Laws. The Company has not been advised, and has no reason to believe, that it and each of its Subsidiaries are not conducting business in compliance with all applicable Laws, rules and regulations of the jurisdictions in which it is conducting business, except where failure to be so in compliance would reasonably be expected to not result in a Material Adverse Effect. The Company maintains and periodically reviews written policies and procedures reasonably designed to keep the Company and its employees’ conduct in connection with the Company’s business in compliance in all material respects with those laws, rules and regulations applicable to the Company’s business in the jurisdictions in which it is conducting such business.

 

2.23        Environmental Laws. The Company and the Subsidiaries (i) are in compliance with any and all applicable Laws relating to the protection of human health and safety, the environment or hazardous or toxic substances or wastes, pollutants or contaminants (collectively, “Environmental Laws”); (ii) have received and are in compliance with all permits, licenses or other approvals required of them under applicable Environmental Laws to conduct their respective businesses as described in the SEC Documents; and (iii) have not received notice of any actual or potential liability for the investigation or remediation of any disposal or release of hazardous or toxic substances or wastes, pollutants or contaminants, except, in the case of any of clauses (i), (ii) or (iii) above, for any such failure to comply or failure to receive required permits, licenses, other approvals or liability as would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.

 

2.24         Disclosure Controls. The Company maintains a system of internal accounting controls designed to provide reasonable assurance that (i) transactions are executed in accordance with management’s general or specific authorizations; (ii) transactions are recorded as necessary to permit preparation of financial statements in conformity with GAAP and to maintain asset accountability; (iii) access to assets is permitted only in accordance with management’s general or specific authorization; and (iv) the recorded accountability for assets is compared with the existing assets at reasonable intervals and appropriate action is taken with respect to any differences. The Company is not aware of any material weaknesses in its internal control over financial reporting (other than as set forth in the SEC Documents). Since the date of the latest audited financial statements of the Company included in the SEC Documents, there has been no change in the Company’s internal control over financial reporting that has materially affected, or is reasonably likely to materially affect, the Company’s internal control over financial reporting (other than as set forth in the SEC Documents). The Company has established disclosure controls and procedures (as defined in Exchange Act Rules 13a-15 and 15d-15) that comply with the requirements of the Exchange Act. The Company’s certifying officers have evaluated the effectiveness of the Company’s controls and procedures as of a date within 90 days prior to the filing date of the Form 10-K for the fiscal year most recently ended (such date, the “Evaluation Date”). The Company presented in its Form 10-K for the fiscal year most recently ended the conclusions of the certifying officers about the effectiveness of the disclosure controls and procedures based on their evaluations as of the most recent Evaluation Date, and the “disclosure controls and procedures” were effective as of the Evaluation Date.

 

 

2.25         Sarbanes-Oxley Act. There is and has been no failure on the part of the Company or, to the knowledge of the Company, any of the Company’s directors or officers, in their capacities as such, to comply in all material respects with any applicable provisions of the Sarbanes-Oxley Act and the rules and regulations promulgated thereunder. Each of the principal executive officer and the principal financial officer of the Company (or each former principal executive officer of the Company and each former principal financial officer of the Company as applicable) has made all certifications required by Sections 302 and 906 of the Sarbanes-Oxley Act with respect to all reports, schedules, forms, statements and other documents required to be filed by it or furnished by it to the Commission during the past 12 months. For purposes of the preceding sentence, “principal executive officer” and “principal financial officer” shall have the meanings given to such terms in the Exchange Act Rules 13a-15 and 15d-15.

 

2.26          Labor Disputes. No labor disturbance by or material dispute with employees of the Company or any Subsidiary exists or, to the knowledge of the Company, is threatened which would reasonably be expected to result in a Material Adverse Effect.

 

2.27         Investment Company Act. Neither the Company nor any Subsidiary is or, after giving effect to the offering and sale of the Shares, will be required to register as an “investment company” or an entity “controlled” by an “investment company,” as such terms are defined in the Investment Company Act of 1940, as amended (the “Investment Company Act”).

 

2.28        Operations. The operations of the Company and the Subsidiaries are and have been since January 1, 2023 conducted in compliance in all material respects with applicable financial record keeping and reporting requirements of the Currency and Foreign Transactions Reporting Act of 1970, as amended, the money laundering statutes of all jurisdictions to which the Company or the Subsidiaries are subject, the rules and regulations thereunder and any related or similar rules, regulations or guidelines, issued, administered or enforced by any Governmental Authority having jurisdiction over the Company (collectively, the “Money Laundering Laws”), except where the failure to be in such compliance would reasonably be expected to not result in a Material Adverse Effect; and no action, suit or proceeding by or before any court or Governmental Authority or any arbitrator involving the Company or any Subsidiary with respect to the Money Laundering Laws is pending or, to the knowledge of the Company, threatened.

 

2.29         Off-Balance Sheet Arrangements. There are no transactions, arrangements and other relationships between and/or among the Company, and/or, to the knowledge of the Company, any of its affiliates and any unconsolidated entity, including, but not limited to, any structured finance, special purpose or limited purpose entity (each, an “Off Balance Sheet Transaction”) that would affect materially the Company’s liquidity or the availability of or requirements for its capital resources, including those Off Balance Sheet Transactions described in the Commission’s Statement about Management’s Discussion and Analysis of Financial Conditions and Results of Operations (Release Nos. 33-8056; 34-45321; FR-61), required to be described in the SEC Documents which have not been described as required.

 

2.30         ERISA. To the knowledge of the Company, (i) each material employee benefit plan, within the meaning of Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”) that is maintained, administered or contributed to by the Company or any of its affiliates for employees or former employees of the Company and the Subsidiaries has been maintained in material compliance with its terms and the requirements of any applicable statutes, orders, rules and regulations, including but not limited to ERISA and the Internal Revenue Code of 1986, as amended (the “Code”); (ii) no prohibited transaction, within the meaning of Section 406 of ERISA or Section 4975 of the Code, has occurred which would result in a material liability to the Company with respect to any such plan excluding transactions effected pursuant to a statutory or administrative exemption; and (iii) for each such plan that is subject to the funding rules of Section 412 of the Code or Section 302 of ERISA, no “accumulated funding deficiency” as defined in Section 412 of the Code has been incurred, whether or not waived, and the fair market value of the assets of each such plan (excluding for these purposes accrued but unpaid contributions) equals or exceeds the present value of all benefits accrued under such plan determined using reasonable actuarial assumptions, other than, in the case of (i), (ii) and (iii) above, as would not reasonably be expected to have a Material Adverse Effect.

 

 

2.31          Insurance. The Company and the Subsidiaries carry, or are covered by, insurance in such amounts and covering such risks as the Company and the Subsidiaries reasonably believe are adequate for the conduct of their business.

 

2.32         No Improper Practices. (i) Neither the Company nor, to the Company’s knowledge, the Subsidiaries, nor to the Company’s knowledge, any of their respective executive officers has, in the past five years, made any unlawful contributions to any candidate for any political office (or failed fully to disclose any contribution in violation of law) or made any contribution or other payment to any official of, or candidate for, any federal, state, municipal, or foreign office or other person charged with similar public or quasi-public duty in violation of any law or of the character required to be disclosed in the SEC Documents; (ii) no relationship, direct or indirect, exists between or among the Company or, to the Company’s knowledge, the Subsidiaries or any affiliate of any of them, on the one hand, and to the Company’s knowledge the directors, officers and stockholders of the Company or the Subsidiaries, on the other hand, that is required by the Securities Act to be described in the SEC Documents that is not so described; (iii) no relationship, direct or indirect, exists between or among the Company or the Subsidiaries or any affiliate of them, on the one hand, and to the Company’s knowledge the directors, officers, stockholders or directors of the Company or the Subsidiaries, on the other hand, that is required by the rules of FINRA to be described in the SEC Documents that is not so described; (iv) there are no material outstanding loans or advances or material guarantees of indebtedness by the Company or, to the Company’s knowledge, the Subsidiaries to or for the benefit of any of their respective officers or directors or any of the members of the families of any of them; and (v) the Company has not offered, or caused any placement agent to offer, Company Common Stock to any person with the intent to influence unlawfully (A) a customer or supplier of the Company or the Subsidiaries to alter the customer’s or supplier’s level or type of business with the Company or the Subsidiaries or (B) a trade journalist or publication to write or publish favorable information about the Company or the Subsidiaries or any of their respective products or services, and, (vi) neither the Company nor the Subsidiaries nor, to the Company’s knowledge, any employee or agent of the Company or the Subsidiaries has made any payment of funds of the Company or the Subsidiaries or received or retained any funds in violation of any law, rule or regulation (including, without limitation, the Foreign Corrupt Practices Act of 1977), which payment, receipt or retention of funds is of a character required to be disclosed in the SEC Documents.

 

2.33         OFAC.

 

  (a)         Neither the Company nor any Subsidiary (collectively, the “Entity”) nor, to the Company’s knowledge, any director, officer, employee, agent, affiliate or representative of the Entity, is a government, individual, or entity (in this Section 2.33, “Person”) that is, or is owned or controlled by a Person that is: (a) the subject of any sanctions administered or enforced by the U.S. Department of Treasury’s Office of Foreign Assets Control (“OFAC”), the United Nations Security Council (“UNSC”), the European Union (“EU”), Her Majesty’s Treasury (“HMT”), or other relevant sanctions authority (collectively, “Sanctions”), nor (b) located, organized or resident in a country or territory that is the subject of Sanctions.

 

  (b)         The Entity will not, directly or indirectly, knowingly use the proceeds of the offering, or knowingly lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other Person: (a) to fund or facilitate any activities or business of or with any Person or in any country or territory that, at the time of such funding or facilitation, is the subject of Sanctions; or in any other manner that will result in a violation of Sanctions by any Person (including any Person participating in the offering, whether as underwriter, advisor, investor or otherwise).

 

  (c)          The Entity represents and covenants that, except as detailed in the SEC Documents, for the past 5 years, it has not knowingly engaged in and is not now knowingly engaged in any dealing or transactions with any Person, or in any country or territory, that at the time of the dealing or transaction is or was the subject of Sanctions.

 

2.34          IT Systems. Except as would not, individually or in the aggregate, result in a Material Adverse Effect, (i)(x) to the knowledge of the Company, there has been no security breach or other compromise of any Company’s information technology and computer systems, networks, hardware, software, data (including the data of their respective customers, employees, suppliers, vendors and any third party data maintained by or on behalf of them), equipment or technology (collectively, “IT Systems and Data”) and (y) the Company has not been notified of, and have no knowledge of any event or condition that would reasonably be expected to result in, any security breach or other compromise to their IT Systems and Data; (ii) the Company is presently in material compliance with all applicable Laws or Governmental Authority, internal policies and contractual obligations relating to the privacy and security of IT Systems and Data and to the protection of such IT Systems and Data from unauthorized use, access, misappropriation or modification, except as would not, in the case of this clause (ii), individually or in the aggregate, reasonably be expected to have a Material Adverse Effect; and (iii) the Company has implemented backup and disaster recovery technology consistent with industry standards and practices.

 

 

2.35        Regulatory Authorizations. The Company: (i) has operated and currently operates its business in compliance in all material respects with all applicable Health Care Laws (as defined below) and any other applicable requirements of the Food and Drug Administration (“FDA”), the Department of Health and Human Services (“HHS”) and any comparable foreign or other regulatory authority to which they are subject (collectively, the “Applicable Regulatory Authorities”) applicable to the ownership, testing, development, manufacture, packaging, processing, use, distribution, storage, import, export or disposal of any of the Company’s product candidates; (ii) has not received any FDA Form 483, written notice of adverse finding, warning letter, untitled letter or other correspondence or written notice from any court or arbitrator or Governmental Authority alleging or asserting non-compliance with (A) any Health Care Laws or (B) or any licenses, certificates, approvals, clearances, exemptions, registrations, authorizations, permits and supplements or amendments thereto required by any such Health Care Laws (“Regulatory Authorizations”); (iii) possesses all Regulatory Authorizations required to conduct its business as currently conducted and such Regulatory Authorizations are valid and in full force and effect and the Company is not in violation, in any material respect, of any term of any such Regulatory Authorizations; (iv) has not received notice of any claim, action, suit, proceeding, hearing, enforcement, investigation, arbitration or other action from the Applicable Regulatory Authorities or any other third party alleging that any product operation or activity is in material violation of any Health Care Laws or Regulatory Authorizations and has no knowledge that the Applicable Regulatory Authorities or any other third party is considering any such claim, litigation, arbitration, action, suit, investigation or proceeding; (v) has not received notice that any of the Applicable Regulatory Authorities has taken, is taking or intends to take action to limit, suspend, modify or revoke any material Regulatory Authorizations and has no knowledge that any of the Applicable Regulatory Authorities is considering such action; (vi) has filed, obtained, maintained or submitted all material reports, documents, forms, notices, applications, records, claims, submissions and supplements or amendments as required by any Health Care Laws or Regulatory Authorizations and that all such reports, documents, forms, notices, applications, records, claims, submissions and supplements or amendments were materially complete and correct on the date filed (or were materially corrected or supplemented by a subsequent submission); (vii) is not a party to or have any ongoing reporting obligations pursuant to any corporate integrity agreements, deferred or non-prosecution agreements, monitoring agreements, consent decrees, settlement orders, plans of correction or similar agreements with or imposed by any Applicable Regulatory Authority; and (viii) along with its employees, officers and directors, and, to the Company’s knowledge, agents, has not been excluded, suspended or debarred from participation in any government health care program or human clinical research or, to the knowledge of the Company, is subject to a governmental inquiry, investigation, proceeding, or other similar action that could reasonably be expected to result in debarment, suspension, or exclusion.

 

2.36          Manufacturing Facilities. To the Company’s knowledge, the manufacturing facilities and operations of its suppliers are operated in compliance in all material respects with all applicable statutes, rules, regulations and policies of the Applicable Regulatory Authorities.

 

 

2.37         Company Trials. Except as otherwise described in the SEC Documents, none of the Company’s product candidates have received marketing approval from any Applicable Regulatory Authority. All clinical and pre-clinical studies and trials conducted by or on behalf of or sponsored by the Company, or in which the Company has participated with respect to the Company’s product candidates, including without limitation any such studies and trials that are described in the SEC Documents, or the results of which are referred to in the SEC Documents, as applicable (collectively, “Company Trials”), were, and if still pending are, being conducted in all material respects in accordance with all applicable Health Care Laws, standard medical and scientific research procedures and any applicable rules, regulations and policies of the jurisdiction in which such trials and studies are being conducted; the descriptions in the SEC Documents of the results of any Company Trials are accurate and complete descriptions in all material respects and fairly present the data derived therefrom; the Company has no knowledge of any other studies or trials not described in the SEC Documents, the results of which are inconsistent with or call into question the results described or referred to in the SEC Documents; the Company has operated at all times and is currently in compliance in all material respects with all applicable Health Care Laws; the Company has not received, and the Company has no knowledge after due inquiry that any of its collaboration partners have received, any written notices, correspondence or other communications from the Applicable Regulatory Authorities or any other Governmental Authority requiring or threatening the termination, material modification or suspension of Company Trials, other than ordinary course communications with respect to modifications in connection with the design and implementation of such studies or trials, and, to the Company’s knowledge, there are no reasonable grounds for the same. No investigational new drug application or comparable submission filed by or on behalf of the Company with the FDA has been terminated or suspended by the FDA or any other Applicable Regulatory Authority. The Company has obtained (or caused to be obtained) informed consent by or on behalf of each human subject who participated in a Company Trial. In using or disclosing patient information received by the Company in connection with a Company Trial, the Company has complied in all material respects with all applicable laws and regulatory rules or requirements, including, without limitation, HIPAA and the rules and regulations thereunder. To the Company’s knowledge, none of the Company Trials involved any investigator who has been disqualified as a clinical investigator or has been found by the FDA to have engaged in scientific misconduct.

 

2.38          Private Placement. Assuming the accuracy of the Investor’s representations and warranties set forth in Article III hereof, no registration under the Securities Act is required for the offer and sale of the Shares by the Company to the Investor hereunder. The Shares (i) were not offered by any form of general solicitation or general advertising (as such terms are defined in Regulation D under the Securities Act) and (ii) are not being offered in a manner involving a public offering under, or in a distribution in violation of, the Securities Act or any state securities laws. No disqualifying event described in Rule 506(d)(1)(i)-(viii) under the Securities Act (a “Disqualification Event”) is applicable to the Company or, to the Company’s Knowledge, any Company Covered Person (as defined below), except for a Disqualification Event as to which Rule 506(d)(2)(ii)-(iv) or (d)(3) under the Securities Act is applicable. The Company has complied, to the extent applicable, with any disclosure obligations under Rule 506(e) under the Securities Act. “Company Covered Person” means, with respect to the Company as an “issuer” for purposes of Rule 506 under the Securities Act, any person listed in the first paragraph of Rule 506(d)(1) under the Securities Act.

 

2.39        No Integrated Offering. The Company shall not, directly or indirectly, sell, offer for sale or solicit offers to buy or otherwise negotiate (and has not done any of the foregoing) in respect of any security (as defined in Section 2 of the Securities Act) that would be integrated with the offer or sale of the Shares in a manner that would require the registration under the Securities Act of the sale of the Shares or that would be integrated with the offer or sale of the Shares for purposes of the rules and regulations of NYSE such that it would require stockholder approval prior to the closing of such other transaction unless stockholder approval is obtained before the closing of such subsequent transaction.

 

2.40    .     Takeover Statutes. The Board has approved this Agreement and the consummation of the transactions contemplated hereby and such approval represents all the actions necessary to render inapplicable to this Agreement and the transactions contemplated hereby the restrictions on “business combinations” set forth in Section 203 of the DGCL, to the extent such restrictions would otherwise be applicable to this Agreement and the transactions contemplated hereby. No other takeover statute or similar Law applies to this Agreement or the transactions contemplated hereby.

 

2.41          Disclaimer of Other Representations and Warranties. Except as expressly set forth in Article III or in any other Transaction Document, the Company acknowledges that neither the Investor nor any of its Affiliates has made or is making any representation or warranty of any kind, express or implied, at law or in equity, including with respect to it or any of its Subsidiaries or any of their respective businesses, assets, liabilities, condition (financial or otherwise), prospects or operations, or otherwise, and any such other representations and warranties are hereby expressly disclaimed by the Investor.

 

 

ARTICLE III
    REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE INVESTOR

 

The Investor hereby represents and warrants to the Company the following as of the date hereof and the Closing Date as follows:

 

3.1         Authorization and Power. The Investor has the requisite power and authority to enter into and perform the Transaction Documents and to purchase the Shares being sold to it hereunder. The execution, delivery and performance of this Agreement by the Investor and the consummation by it of the Transactions have been duly authorized by all necessary corporate action, and no further consent or authorization of the Investor or its board of directors, stockholders or other governing body is required. When executed and delivered by the Investor, this Agreement shall constitute a valid and binding obligation of the Investor, enforceable against the Investor in accordance with its terms, except as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium, liquidation, conservatorship, receivership or similar laws relating to, or affecting generally the enforcement of, creditor’s rights and remedies or by other equitable principles of general application.

 

3.2          No Conflict. The execution, delivery and performance of the Transaction Documents by the Investor and the consummation by the Investor of the Transactions do not and will not (i) violate any provision of the Investor’s charter or organizational documents, (ii) conflict with, or constitute a default (or an event which with notice or lapse of time or both would become a default) under, or give to others any rights of termination, amendment, acceleration or cancellation of, any agreement, mortgage, deed of trust, indenture, note, bond, license, lease agreement, instrument or obligation to which the Investor is a party or by which the Investor’s properties or assets are bound, or (iii) result in a violation of any federal, state, local or foreign statute, rule, regulation, order, judgment or decree (including federal and state securities laws and regulations) applicable to the Investor or by which any property or asset of the Investor are bound or affected, except, in the case of clauses (ii) and (iii) for such conflicts, defaults or violations that would not, individually or in the aggregate, reasonably be expected to have a material adverse effect on the ability of the Investor to perform its obligations under this Agreement and the other Transaction Documents, including the purchase of the Shares, or to consummate the Transactions.

 

3.3          Investor Sophistication; Accredited Investor. The Investor (i) is an “accredited investor” pursuant to Rule 501 of Regulation D under the Securities Act; (ii) is acquiring the Shares for its own account for investment only and with no present intention of distributing any of the Shares or any arrangement or understanding with any other Persons regarding the distribution of the Shares; (iii) has not been organized, reorganized or recapitalized specifically for the purpose of investing in the Shares; (iv) will not, directly or indirectly, offer, sell, pledge, transfer or otherwise dispose of (or solicit any offers to buy, purchase or otherwise acquire to take a pledge of) any of the Shares except in compliance with the Securities Act and applicable state securities laws; (v) understands that the Shares are being offered and sold to it in reliance upon specific exemptions from the registration requirements of the Securities Act and state securities laws, and that the Company is relying upon the truth and accuracy of, and the Investor’s compliance with, the representations, warranties, agreements, acknowledgments and understandings of the Investor set forth herein in order to determine the availability of such exemptions and the eligibility of the Investor to acquire the Shares; (vi) understands that its investment in the Shares involves a significant degree of risk, including a risk of total loss of the Investor’s investment (provided that such acknowledgment in no way diminishes the representations, warranties and covenants made by the Company hereunder); and (vii) understands that no Governmental Authority has passed upon or made any recommendation or endorsement of the Shares.

 

3.4          Private Placement. The Investor acknowledges that the Shares are being offered in a transaction not involving a public offering within the meaning of the Securities Act and that the Shares have not been registered under the Securities Act. The Investor acknowledges that the Shares may not be offered, resold, transferred, pledged or otherwise disposed of by the Investor in a transaction subject to the registration requirements of the Securities Act absent an effective registration statement under the Securities Act or an applicable exemption from the registration requirements of the Securities Act, including Rule 144 promulgated thereunder.

 

3.5            Ownership of Capital Stock. The Investor and its Affiliates beneficially own no shares of capital stock of the Company as of the date hereof.

 

 

3.6            Stock Legends. The Investor acknowledges that certificates or book-entry credits evidencing the Shares shall bear a restrictive legend in substantially the following form (and including related stock transfer instructions and record notations), in addition to any other legend required by Law or by the “blue sky” laws of any state:

 

THESE SECURITIES HAVE NOT BEEN REGISTERED WITH THE SECURITIES AND EXCHANGE COMMISSION OR THE SECURITIES COMMISSION OF ANY STATE IN RELIANCE UPON AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED (TOGETHER WITH THE RULES AND REGULATIONS THEREUNDER, THE “SECURITIES ACT”), AND, ACCORDINGLY, MAY NOT BE OFFERED FOR SALE, SOLD, PLEDGED, TRANSFERRED OR HYPOTHECATED EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT WITH RESPECT TO THE SECURITIES OR PURSUANT TO AN AVAILABLE EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND IN ACCORDANCE WITH APPLICABLE STATE SECURITIES LAWS OR BLUE SKY LAWS.

 

3.7          No General Solicitation; Pre-Existing Relationship. The Investor is not purchasing the Shares as a result of any advertisement, article, notice or other communication regarding the Shares published in any newspaper, magazine or similar media or broadcast over television or radio or presented at any seminar or any other general solicitation or general advertisement (as defined in Regulation D under the Securities Act). The Investor also represents that the Investor was contacted regarding the sale of the Shares by the Company (or a representative of the Company) and the Shares were offered to the Investor solely by direct contact between the Investor and the Company (or an authorized representative of the Company). The Investor did not become aware of this offering of Shares, nor were the Shares offered to the Investor, by any other means.

 

3.8           Purchase Entirely for Own Account. The Shares to be received by the Investor hereunder will be acquired for the Investor’s own account, not as nominee or agent, and not with a view to the resale or distribution of any part thereof in violation of the Securities Act, and the Investor has no present intention of selling, granting any participation in, or otherwise distributing the same in violation of the Securities Act without prejudice, however, to the Investor’s right at all times to sell or otherwise dispose of all or any part of such Shares in compliance with applicable federal and state securities laws. Nothing contained herein shall be deemed a representation or warranty by the Investor to hold the Shares for any period of time.

 

3.9           Experience of the Investor. The Investor, either alone or together with its representatives, has such knowledge, sophistication and experience in business and financial matters so as to be capable of evaluating the merits and risks of the prospective investment in the Shares, and has so evaluated the merits and risks of such investment. The Investor is able to bear the economic risk of an investment in the Shares and, at the present time, is able to afford a complete loss of such investment.

 

3.10          No Rule 506 Disqualifying Activities. Neither the Investor nor any Person or entity with whom the Investor will share beneficial ownership of the Shares is subject to any of the “Bad Actor” disqualifications described in Rule 506(d)(1)(i)-(viii) under the Securities Act.

 

3.11          Brokers and Finders. Except for Jefferies Group LLC, the Investor has not employed any broker or finder in connection with the Transactions.

 

3.12         Disclaimer of Other Representations and Warranties. Except as expressly set forth in Article II or in any other Transaction Document, the Investor acknowledges that neither the Company nor any of its Affiliates has made or is making any representation or warranty of any kind, express or implied, at law or in equity, including with respect to it or any of its Subsidiaries or any of their respective businesses, assets, liabilities, condition (financial or otherwise), prospects or operations, or otherwise, and any such other representations and warranties are hereby expressly disclaimed by the Company.

 

 

ARTICLE IV
    COVENANTS OF THE PARTIES

 

4.1           Board Observer. From and after the Closing, the Investor shall have the right (but not the obligation) to designate one (1) individual reasonably acceptable to the Company as an observer to the Company’s Board (the “Board Observer”). The Board Observer and the Company shall enter into a customary board observer agreement providing for the treatment of confidential information and other terms reasonably acceptable to the Company, the Board Observer and the Investor. The Company shall provide an initial proposed draft of such board observer agreement as promptly as practicable after the date hereof. The Board Observer may, at his or her option, attend any or all meetings of the Company’s Board (or any portion thereof) in a nonvoting observer capacity and, in this respect, the Company shall give the Board Observer copies of all notices, minutes, consents, and other materials that it provides to its directors at the same time and in the same manner as provided to such directors, except that the Board Observer may be excluded from access to any material, meeting or portion thereof (a) if the Company reasonably believes that such exclusion is reasonably necessary to preserve the attorney-client privilege between the Company and its counsel, (b) if such materials or discussions relate to the business or contractual relationship with Investor or its Affiliates or would reasonably be expected to impair the Company’s ability to enforce its rights under the Transaction Documents or any other agreements entered into pursuant to the Transaction Documents (provided, that this clause (b) is not intended to, and will not, exclude the Board Observer from discussions or materials regarding the development activities undertaken pursuant to the Option Agreement), (c) to avoid a bona fide conflict of interest between the Company and the Board Observer or the Investor, (d) if such materials or discussions would result in the disclosure of trade secrets to the Board Observer (other than trade secrets for which Investor would otherwise have access to in connection with the transactions contemplated by the Option Agreement), or (e) if such materials or discussions relate to a potential or actual transaction involving a Change of Control of the Company with the Investor or a third party. The Board Observer shall not have voting rights or fiduciary obligations to the Company or its stockholders, or be entitled to receive any compensation or reimbursement of expenses in his or her capacity as Board Observer. The right for Investor to designate a Board Observer will terminate upon the earliest to occur of (a) the consummation of a Change of Control of the Company pursuant to clauses (a) or (b) of the definition thereof and (b) the later of (i) the end of the Option Tail Period under the Option Agreement, and (ii) the first date on which (A) Investor and its Affiliates beneficially own less than [***]% of the Company’s outstanding shares of Company Common Stock for a period of [***] or (B) the Investor no longer holds at least [***]% of that number of Shares purchased in that Qualified Transaction (appropriately adjusted from time to time for any reorganization, recapitalization, non-cash dividend, stock split, reverse stock split or other similar transaction). Investor may remove or replace the Board Observer at any time upon advance written notice to the Company; provided, that such replacement Board Observer is reasonably acceptable to the Company and such replacement Board Observer agrees to hold in confidence and not use any information so provided pursuant to the terms of a board observer agreement in the same form or substantially similar form entered into by the prior Board Observer to be executed by such replacement Board Observer.

 

4.2           Information Rights. For so long as the Investor is entitled to designate a Board Observer under Section 4.1, the Company shall provide to the Investor reasonable access, to the extent reasonably requested by the Investor, to the Company’s and its Subsidiaries’ offices, properties, books and records, and to discuss their affairs, finances and matters related to capital structure and financing with its and their officers, all upon reasonable notice and at reasonable times at the Company’s principal place of business; provided that any access pursuant to this Section 4.2 shall be conducted in a manner as not to interfere unreasonably with the conduct of the business of the Company; provided, further, that the Company shall not (i) be obligated pursuant to this Section 4.2 to provide access to any information the disclosure of which would adversely affect the attorney-client privilege between the Company and its counsel; (ii) be obligated pursuant to this Section 4.2 to provide access or share any information or materials in connection with the same if the Company determines, in its reasonable judgment, that doing so would reasonably be expected to result in the disclosure of trade secrets or competitively sensitive information (other than such information that Investor would otherwise have access to in connection with the transactions contemplated by the Option Agreement) or (iii) be required to violate any obligation of confidentiality, order or applicable Law to which it or its Subsidiaries is subject or to waive any privilege which any of them may possess in discharging its obligations pursuant to this Section 4.2; provided, further, that (A) the Company may not enter into any obligation of confidentiality or otherwise for the primary purpose of avoiding disclosure under this Section 4.2 and (B) the Company shall give notice to Investor of the fact that it is withholding such information or documents and inform the Investor of the general nature of the information being withheld and thereafter the Company shall reasonably cooperate with Investor to provide such information (or as much of it as possible) in a manner that would not cause the results set forth in clauses (i) through (iii) of the foregoing proviso to occur. All information rights shall be subject to the applicable confidentiality and non-use restrictions set forth in agreements entered into between the Company and the Investor, including the Confidentiality Agreement.

 

 

4.3           Public Disclosure. Subject to the provisions of the Option Agreement, the Investor and the Company shall consult with each other before issuing, and give each other the opportunity to review and comment upon, any press release or other public statements with respect to the Transactions, and shall not issue any such press release or make any such public statement prior to such consultation, except as may be required by applicable law, court process or the rules and regulations of any national securities exchange or national securities quotation system. The Investor and the Company agree that the initial press release to be issued with respect to the Transactions following execution of this Agreement shall be in the form agreed to by the parties hereto on or prior to the date hereof (the “Announcement”). Notwithstanding the forgoing, this Section 4.3 shall not apply to any press release or other public statement made by the Company or the Investor (a) which is consistent with the Announcement and does not contain any information relating to the Transactions that has not been previously announced or made public in accordance with the terms of this Agreement, (b) is made in the ordinary course of business and does not relate specifically to the Transactions or (c) is consistent with the terms and conditions of the Transaction Documents that are publicly disclosed by the Company or the Investor (without any violation of this Agreement). Notwithstanding the foregoing, (i) this Section 4.3 shall not prohibit any disclosure of information concerning this Agreement or the other Transaction Documents in connection with any dispute between the parties hereto regarding this Agreement or the other Transaction Documents and (ii) either party hereto may, without consulting the other party hereto, provide ordinary course communications regarding this Agreement and the Transactions to its existing or prospective direct or indirect general and limited partners, equityholders, financing sources, members, managers and investors of any Affiliates of such Person, in the ordinary course of business (in the case of information that is not otherwise publicly disclosed, on a confidential basis).

 

4.4          Registration Rights Agreement. The parties shall cooperate in good faith to negotiate and enter into a registration rights agreement (the “Registration Rights Agreement”), the effectiveness of which shall be conditioned on the occurrence of the Closing, as promptly as reasonably practicable following the date hereof (and in any event prior to the Closing) on customary terms, obligating the Company to file a registration statement with Commission to register the Shares for resale.

 

4.5           Standstill. Except as expressly permitted by this Agreement or the Option Agreement (including, for the avoidance of doubt, any required filings with the Commission in connection therewith), or the Asset Purchase Agreement, the Investor agrees that during the Standstill Period, without the prior written approval of the Board, the Investor will not, directly or indirectly, and will cause its controlled Affiliates not to:

 

  (a)         make, effect, initiate, cause or in any way participate in or knowingly encourage (i) any acquisition of beneficial ownership of any securities of the Company or any securities (including derivatives thereof) of any Subsidiary or other Affiliate of the Company other than (A) the securities to be acquired from the Company pursuant to this Agreement or any other agreement entered into between the Company and Investor pursuant to this Agreement or (B) any such acquisition that would result in the Investor and its Affiliates beneficially owning 19.99% or less of the Company’s voting power then outstanding, (ii) any acquisition of any assets of the Company or any assets of any subsidiary, division or other affiliate of the Company, or (iii) any “solicitation” of “proxies” (whether or not relating to the election or removal of directors), as such terms are used in the rules of the Commission, to vote, or knowingly seek to advise or influence any Person with respect to voting of, any voting securities of the Company or call or seek to call a meeting of the Company’s stockholders or initiate any stockholder proposal or action by the Company’s stockholders, or seek election to or to place a representative on the Board or seek the removal of any director from the Board;

 

  (b)           publicly propose, offer, seek or indicate an interest in (in each case, with or without conditions) any merger or business combination, tender or exchange offer, recapitalization, restructuring, liquidation, dissolution, reorganization or purchase of a material portion of the assets, properties or securities of the Company or any Subsidiary, or any other extraordinary transaction involving the Company or any Subsidiary or any of their respective securities or assets; or

 

  (c)           contest the validity of this Section 4.5;

 

 

  (d)           form, join or participate in a “group” (as defined in the Securities Exchange Act of 1934, as amended, and the rules promulgated thereunder) with respect to the beneficial ownership of any securities of the Company or any subsidiary of the Company;

 

  (e)           act, alone or in connection with others, to seek to control the management, board of directors or policies of the Company;

 

  (f)            take any action that might require the Company to make a public announcement regarding any of the types of matters set forth in clauses (a) or (b) of this section;

 

  (g)           agree or offer to take, or encourage or propose (publicly or otherwise) the taking of, any action referred to in clauses (a) through (f) of this section;

 

  (h)           knowingly assist, knowingly induce or knowingly encourage any other Person to take any action of the type referred to in clauses (a) through (g) of this section; or

 

  (i)            publicly request or propose (either directly or indirectly) that the Company or any of the Company’s representatives amend, waive or consider the amendment or waiver of any provision set forth in this Agreement (including this clause (j));

 

provided, however, that nothing in this Section 4.5 will limit the Investor’s ability to (x) vote, transfer, or otherwise exercise rights under, the Shares or (y) communicate, on a confidential basis, with its Affiliates and its and their officers, directors, attorneys, accountants and financial advisors; provided, further that notwithstanding anything to the contrary in this Section 4.5, the Investor and its Affiliates may at any time communicate privately with the Company’s Chief Executive Officer or Chief Financial Officer or submit to the Board (through the Chief Executive Officer, who shall circulate to the Board within [***]) one or more confidential proposals or offers for a transaction (including a transaction that, if consummated, would result in a Change of Control); provided, further that the Investor and the Company hereby agree that from and after the date hereof this Section 4.5 will supersede Section 3(b) (Protections) of the Confidentiality Agreement in all respects and Section 3(b) (Protections) of the Confidentiality Agreement shall terminate in full.

 

4.6          State Securities Laws. Promptly following the date hereof, the Company shall use its reasonable best efforts to (a) make all filings with the Commission under the Securities Act and Exchange Act related to the execution of the Transaction Documents and the consummation of the Transactions in the time periods required by (including any extensions permitted by) the Securities Act and Exchange Act, as applicable, (b) obtain all necessary permits and qualifications, if any, or secure an exemption therefrom, required by any state or country prior to the offer and sale of the Shares and (c) cause such authorization, approval, permit or qualification to be effective as of the Closing.

 

 

ARTICLE V
    PARTICIPATION RIGHTS

 

5.1           Generally. In the event that, at any time after the date hereof, the Company or its Subsidiaries makes any public or non-public offering of any capital stock of, other equity or voting interests in, or equity-linked securities of, the Company or its Subsidiaries or any securities that are convertible or exchangeable into (or exercisable for) capital stock of, other equity or voting interests in, or equity-linked securities of, the Company, including, for the purposes of this Article V, warrants, options or other such rights (any such security, a “New Security”) (other than (1) issuances of any securities pursuant to an employee stock option plan, equity incentive plan, management incentive plan, restricted stock plan, stock purchase plan or stock ownership plan or similar benefit plan, program or agreement, (2) issuances of any securities pursuant to inducement awards issued pursuant to applicable NYSE rules, (3) issuances of securities upon the exercise, conversion, exchange or settlement of options, warrants or other equity linked securities of the Company (x) outstanding as of the date hereof, (y) otherwise issued in the ordinary course of business as compensation for the Company’s employees, directors, consultants or service providers or (z) to the extent the Company offered such options, warrants or equity linked securities to Investor pursuant to Article V, (4) issuances of securities to banks, equipment lessors or other financial institutions, or to real property lessors, pursuant to an equipment leasing or real property leasing transaction approved by the Company’s Board (with aggregate issuances pursuant to this clause (4) not to exceed [***]% of the outstanding shares of Company Common Stock as of the date hereof), (5) issuances of any securities issued as a result of a pro rata stock split, stock dividend, spin-off, reclassification or reorganization or similar pro rata event, (6) shares of a Subsidiary of the Company issued to the Company or a wholly owned Subsidiary of the Company), (7) issuances made as consideration for any bona fide acquisition (by sale, merger in which the Company is the surviving corporation, or otherwise) by the Company of equity in, or non-cash assets of, another Person, business unit, division or business, (8) issuances of any shares of Company Common Stock pursuant to at-the-market programs, including pursuant to that certain At Market Issuance Sales Agreement, dated November 17, 2023, by and among the Company, Oppenheimer & Co. Inc., B. Riley Securities, Inc. and Jones Trading Institutional Services LLC (“ATM Sales” and such agreements, the “ATM Agreements”), (9) issuances of securities in connection with the first Qualified Transaction consummated after the date hereof and (10) public or private offerings in which Investor participates in an amount necessary to maintain its Pro Rata Portion (clauses (1) through (10) are collectively referred to herein as “Excluded Issuances”), then the Investor shall be afforded the opportunity to acquire from the Company up to its Pro Rata Portion (as defined below) (or, if the Investor so requests and the Company consents, more than its Pro Rata Portion) of such New Securities for the same price and on the same terms as that offered to the other Investors of such New Securities; provided, that the Investor shall not be entitled to acquire the portion of New Securities pursuant to this Article V to the extent the issuance of such portion of New Securities to the Investor would require approval of the stockholders of the Company as a result of the Investor status, if applicable, as an Affiliate of the Company or pursuant to the rules and listing standards of NYSE until the Company obtains such approval, and the Company shall use reasonable best efforts to obtain such approval as promptly as practicable.

 

5.2          Calculation of Pro Rata Portion. Subject to the foregoing proviso in Section 5.1, the maximum amount of New Securities that Investor shall be entitled (but not obligated) to purchase in the aggregate (absent the Company’s consent) shall be determined by multiplying (1) the total number of such offered shares of New Securities by (2) a fraction, the numerator of which is the number of shares of Company Common Stock held by the Investor and its Affiliates, as of such date (or, if the Investor does not own any shares of Company Common Stock as of such date, clause (a) of the definition of the Purchased Shares Number, calculated using the anticipated public offering price in such offering), and the denominator of which is the aggregate number of shares of Company Common Stock outstanding as of such date (the “Pro Rata Portion”); provided that, the Investor shall be entitled to purchase an amount greater than its Pro Rata Portion, subject to the consent of the Company. Notwithstanding anything to the contrary in this Agreement or any of the other Transaction Documents and for the avoidance of doubt, no shares of Company Common Stock or other securities will be issued by the Company to the Investor or its Attribution Parties to the extent that such issuance pursuant to this Article V would result in the Investor or its Attribution Parties beneficially owning in excess of 19.99% of the then-outstanding shares of Common Stock on a post-transaction basis or otherwise require stockholder approval under NYSE rules on the basis that such issuance would result in a change of control, unless mutually agreed upon by the Parties, in which case such issuance shall be subject to stockholder approval if required by NYSE.

 

5.3         Participation Rights Notices and Procedures. If the Company proposes to offer New Securities, it shall give the Investor written notice of its intention, describing the anticipated price (or range of anticipated prices), anticipated amount of New Securities and other material terms and timing upon which the Company proposes to offer the same (including, in the case of a registered public offering and to the extent possible, a copy of the prospectus included in the registration statement filed with respect to such offering) at least three (3) Business Days prior to such issuance (or, in the case of a registered public offering, at least three (3) Business Days prior to the commencement of such registered public offering) (provided, that to the extent the terms of such offering cannot reasonably be provided three (3) Business Days prior to such issuance, notice of such terms may be given as promptly as reasonably practicable but in any event one (1) Business Day prior to such issuance). The Company may provide such notice to the Investor on a confidential basis prior to public disclosure of such offering. Other than in the case of a registered public offering, the Investor may notify the Company in writing at any time on or prior to the second Business Day immediately preceding the date of such issuance (or, if notice of all such terms has not been given prior to the second Business Day immediately preceding the date of such issuance, at any time prior to such issuance) whether the Investor will exercise such participation rights and as to the amount of New Securities the Investor desires to purchase, up to the maximum amount calculated pursuant to Section 5.2, unless the Investor requests and the Company consents to more. In the case of a registered public offering, the Investor shall notify the Company in writing at any time within one (1) Business Day after Investor’s receipt of the participation rights notice from the Company immediately preceding the date of commencement of such registered public offering (or, if notice of all such terms has not been given prior to the second Business Day immediately preceding the date of commencement of such registered public offering, at any time prior to the date of commencement of such registered public offering) whether the Investor will exercise such participation rights and as to the amount of New Securities the Investor desires to purchase, up to the maximum amount calculated pursuant to Section 5.2. Such notice to the Company shall constitute a binding commitment by the Investor to purchase the amount of New Securities so specified at the price and other terms set forth in the Company’s notice to it. Subject to receipt of the requisite notice of such issuance by the Company, the failure of the Investor to respond prior to the time a response is required pursuant to this Section 5.3 shall be deemed to be a waiver of the Investor’s purchase rights under this Article V only with respect to the offering described in the applicable notice.

 

 

5.4          Purchase of New Securities. Other than in the case of a registered public offering in which the Investor participates in the same manner as the other purchasers in such offering (in which case, for the avoidance of doubt (but without limitation of the notice requirements of Section 5.3), the participation rights in this Article V shall not apply), the Investor shall purchase the New Securities that it has elected to purchase under this Article V concurrently with the related issuance of such New Securities by the Company (subject to the receipt of any required approvals); provided, that if such related issuance is prior to the 20^th Business Day following the date on which the Investor has notified the Company that it has elected to purchase New Securities pursuant to this Article V, then the Investor shall purchase such New Securities within 20 Business Days following the date of the related issuance. If the proposed issuance by the Company of securities which gave rise to the exercise by the Investor of its participation rights pursuant to this Article V shall be terminated or abandoned by the Company without the issuance of any New Securities, then the purchase rights of the Investor pursuant to this Article V shall also terminate as to such proposed issuance by the Company (but not any subsequent or future issuance), and any funds in respect thereof paid to the Company by the Investor in respect thereof shall be promptly refunded in full. Other than in the case of a registered public offering in which the Investor participates in the same manner as the other purchasers in such offering, (a) the Company shall, and shall use commercially reasonable efforts to cause its representatives to, reasonably cooperate with the Investor in connection with the Investor’s purchase of New Securities, including negotiating and entering into customary definitive documentation with the Investor in connection therewith (including, in the case of a private placement, an investment agreement and registration rights agreement on terms reasonably acceptable to the Investor) and (b) any offer or sale made pursuant to this Article V shall be made without registration under the Securities Act pursuant to the exemption provided by Section 4(a)(2) of the Securities Act and Rule 506 promulgated thereunder as a transaction not involving a public offering.

 

5.5           Consideration Other than Cash. In the case of the offering of securities for consideration in whole or in part other than cash, including securities acquired in exchange therefor (other than securities by their terms so exchangeable), the consideration other than cash shall be deemed to be the fair value thereof as reasonably determined by the Board in good faith; provided, however, that such fair value as determined by the Board shall not exceed the aggregate market price of the securities being offered as of the date the Board authorizes the offering of such securities.

 

5.6          Miscellaneous. The election by the Investor to not exercise its participation rights under this Article V in any one instance shall not affect its rights as to any subsequent proposed issuance. The Company and the Investor shall cooperate in good faith to facilitate the exercise of the Investor’s rights pursuant to this Article V, including securing any required approvals or consents. The covenants set forth in this Article V shall apply from and after the date of this Agreement and shall terminate and be of no further force or effect at such time as Investor is no longer entitled to designate a Board Observer under Section 4.1.

 

 

5.7          ATM Sales. With respect to ATM Sales, within ten (10) Business Days of the end of a fiscal quarter in which the Company issued shares of Company Common Stock pursuant to the ATM Agreements (the “Applicable Quarter”), the Company shall provide written notice to the Investor specifying the number of shares of Company Common Stock issued during the Applicable Quarter pursuant to the ATM Agreements (the “ATM Issued Shares”) and the average price per share received by the Company before commissions (the “ATM Average Price”). Investor shall have seven (7) Business Days from the giving of such notice to agree to purchase all or a portion of its Pro Rata Portion of the ATM Issued Shares and shall deliver a written notice to the Company no later than the conclusion of such seven (7)-Business Day period, specifying how many shares of Company Common Stock it elects to purchase (an “ATM Purchase Notice”); provided that in no event shall the Investor deliver more than two ATM Purchase Notices per calendar year. On the date that is five (5) Business Days following delivery by Investor to the Company of an ATM Purchase Notice, the Company shall issue the number of shares specified in the ATM Purchase Notice to the Investor and the Investor shall pay to the Company an amount equal to the number of shares purchased multiplied by the ATM Average Price for such prior quarter. For purposes of this Section 5.7, Pro Rata Portion shall be determined as of the first day of the Applicable Quarter. Notwithstanding anything in this Agreement to the contrary, the total number of securities that the Investor has right to purchase pursuant to this Section 5.7 shall be limited to shares of Company Common Stock equal to 19.99% of the Company’s outstanding shares of Company Common Stock as of immediately prior to the ATM Purchase Notice or such lesser number as required by NYSE, unless, if required by NYSE, Company stockholder approval is obtained in accordance with applicable law, the Company’s organizational documents and stock exchange rules to issue more than such amount.

 

5.8          NYSE Stockholder Approval Requirement. In connection with Investor’s exercise of its rights under this Article V and for so long as the Company Common Stock are listed for trading on NYSE, both Investor and the Company will comply with applicable NYSE rules including shareholder approval, if required, and the applicable rule of such other stock exchanges in the event the Company Common Stock is listed on an national securities exchange other than NYSE.

 

ARTICLE VI
CONDITIONS

 

6.1           Conditions to the Obligations of the Company and the Investor. The respective obligations of each of the Company and the Investor to effect the Closing is subject to the satisfaction (or to the extent permitted by applicable Law, waiver) at or prior to the Closing of the following condition:

 

  (a)         No Restraint; Absence of Litigation. No preliminary or permanent injunction or other binding order, decree or ruling issued by a Governmental Authority shall be in effect that shall have the effect of preventing the consummation of the transactions contemplated by this Agreement (each, a “Restraint”).

 

6.2           Conditions to the Obligations of the Investor. The obligation of the Investor to effect the Closing is subject to the satisfaction (or to the extent permitted by applicable Law, waiver) of each of the following conditions at or before the Closing:

 

  (a)        Representations and Warranties. The representations and warranties made by the Company in Article II shall be true and correct in all material respects (or, to the extent representations or warranties are qualified by materiality, “Material Adverse Effect” or similar qualifiers, in all respects) as of the date hereof and as of Closing Date as if made at such date, except to the extent such representations and warranties are made as of another date, in which case such representations and warranties will be true and correct in all material respects (or, to the extent representations or warranties are qualified by materiality, “Material Adverse Effect” or similar qualifiers, in all respects) as of such other date.

 

  (b)         Covenants. All covenants and agreements contained in this Agreement or the Option Agreement to be performed or complied with by the Company on or prior to the Closing shall have been performed or complied with in all material respects.

 

  (c)         NYSE Qualification. The NYSE shall have raised no objection to the consummation of the transactions contemplated by this Agreement or the issuance of the Shares to the Investor in the absence of stockholder approval of such transactions. There are no delisting proceedings with respect to the Company Common Stock from the NYSE.

 

  (d)         No Material Adverse Effect. No Material Adverse Effect shall have occurred or be existing as of the Closing.

 

  (e)         Absence of Litigation. No suit, action, or proceeding challenging this Agreement or the transactions contemplated hereby, or seeking to prohibit, alter, prevent or materially delay the transactions contemplated by this Agreement, or any action that would reasonably be expected to have the effect of prohibiting, altering, preventing or materially delaying the Transactions contemplated by this Agreement, will have been instituted or be pending before any Governmental Authority.

 

 

  (f)          Registration Rights Agreement. The Company and the Investor shall have entered into a registration rights agreement with respect to the Shares on terms reasonably acceptable to the parties.

 

  (g)         Option Agreement. The Option Agreement shall remain in full force and effect in accordance with its terms (unless terminated by mutual written agreement of the Company and the Investor).

 

  (h)         Solvency. No Person has commenced any proceeding against the Company pursuant to or within the meaning of any Bankruptcy Law and the Company is not insolvent.

 

  (i)          Qualified Transaction. A Qualified Transaction shall have been consummated or will be consummated substantially concurrently with the Closing.

 

6.3           Conditions to the Obligations of the Company. The obligation of the Company to effect the Closing is subject to the satisfaction (or to the extent permitted by applicable Law, waiver) of each of the following conditions at or before the Closing:

 

  (a)        Representations and Warranties. The representations and warranties made by the Investor in Article III shall be true and correct in all material respects as of the date hereof and as of Closing Date as if made at such date, except to the extent such representations and warranties are made as of another date, in which case such representations and warranties will be true and correct in all material respects as of such other date, except in each case where the failure of such representations and warranties to be true and correct in all material respects would not reasonably be expected to have a material adverse effect on the Investor’s ability to timely consummate the Closing or perform its obligations under this Agreement in all material respects.

 

  (b)         Covenants. All covenants and agreements contained in this Agreement to be performed or complied with by the Investor on or prior to the Closing shall have been performed or complied with in all material respects.

 

ARTICLE VII
TERMINATION

 

7.1           Termination. This Agreement may be terminated only as follows:

 

  (a)         By mutual written consent of the parties;

 

  (b)         By the Investor, if a Qualified Transaction is not completed on or prior to [***];

 

  (c)         By either party, if a Restraint shall be in effect and shall have become final and nonappealable prior to the Closing; provided that no party may terminate this Agreement pursuant to this Section 7.1(c) if its failure to perform its obligations under this Agreement or the Option Agreement was a principal cause of such Restraint being imposed;

 

 (d)        By the Investor, if the Company is in material breach of its representations, warranties or obligations under the Option Agreement or this Agreement and such breach (if capable of being cured) is not cured within [***] of the Company being notified thereof; provided that the Investor is not then in material breach of its representations, warranties or obligations under the Option Agreement or this Agreement; and

 

  (e)        By the Company, if the Investor is in material breach of its representations, warranties or obligations under this Agreement and such breach (if capable of being cured) is not cured [***] of the Investor being notified thereof; provided that the Company is not then in material breach of its representations, warranties or obligations under the Option Agreement or this Agreement.

 

 

7.2          Effect of Termination. Any termination of this Agreement shall be effective upon delivery of written notice thereof to the other party, specifying the provision hereof pursuant to which such termination is made, and this Agreement shall forthwith become null and void (other than this Section 7.2 and Article VIII, all of which shall survive termination of this Agreement, with no liability on the part of the Investor or the Company in connection with this Agreement), except that no such termination shall relieve any party hereto from liability for damages to another party resulting from a knowing and intention breach of any representation, warranty, covenant or agreement in this Agreement prior to the date of termination or from intentional fraud.

 

ARTICLE VIII
MISCELLANEOUS

 

8.1           Survival. Unless otherwise set forth in this Agreement, the representations, warranties, covenants and agreements (including those relating to the Board Observer and any obligation of indemnification) of the Company and the Investor contained in or made pursuant to this Agreement shall survive the execution and the delivery of this Agreement and the Closing.

 

8.2          No Finder’s Fees. The Company agrees to indemnify and to hold harmless the Investor from any liability for any commission or compensation in the nature of a finder’s or broker’s fee arising out of such Transactions (and the costs and expenses of defending against such liability or asserted liability) for which the Company or any of its officers, employees or representatives is responsible.

 

8.3           Fees and Expenses. Each party shall pay the fees and expenses of its advisors, counsel, accountants and other experts, if any, and all other expenses, incurred by such party incident to the negotiation, preparation, execution, delivery and performance of this Agreement.

 

8.4           Entire Agreement. The Transaction Documents, together with the schedules, annexes and exhibits thereto, contain the entire understanding of the parties with respect to the subject matter hereof and supersede all prior agreements and understandings, oral or written, with respect to such matters, which the parties acknowledge have been merged into such documents, annexes, exhibits and schedules; provided, however, that, subject to Section 4.5, any confidentiality agreements previously entered into between the Company and the Investor, including the Confidentiality Agreement, shall remain in full force and effect in accordance with their terms.

 

8.5          Notices. Any and all notices or other communications or deliveries required or permitted to be provided hereunder shall be in writing and shall be deemed given and effective on the earliest of (a) the date of transmission, if such notice or communication is delivered via email at the email address specified in this Section (if any) prior to 5:00 p.m. (New York City time) on a Business Day (so long as no message of non-delivery is received from the Company or Investor recipient thereof), (b) the next Business Day after the date of transmission, if such notice or communication is delivered via email at the email address specified in this Section (if any) on a day that is not a Business Day or later than 5:00 p.m. (New York City time) on any Business Day (so long as no message of non-delivery is received from the Company or Investor recipient thereof), (c) the Business Day following the date of deposit with a nationally recognized overnight courier service, or (d) upon actual receipt by the party to whom such notice is required to be given. The addresses and email addresses for such notices and communications are those set forth below, or such other address or email as may be designated in writing hereafter, in the same manner, by any such Person:

 

If to the Company:	Perspective Therapeutics, Inc.
	2401 Elliott Avenue, Suite 320
	Seattle, WA 98121
	Attention: Johan (Thijs) Spoor, Chief Executive Officer
	Email: [***]
with copies (which copies	Hogan Lovells US LLP
shall not constitute notice	609 Main Street, Suite 4200
to the Company) to:	Houston, TX 77002
	Attention: Andrew L. Strong; Stephen M. Nicolai
	Email: andrew.strong@hoganlovells.com; stephen.nicolai@hoganlovells.com

 

 

If to the Investor:	Lantheus Holdings, Inc.
	201 Burlington Road South Building
	Bedford, MA 01730
	Attention: Daniel Niedzwiecki, Chief Administrative Officer and General Counsel
	Email: [***]
with copies (which copies	Cooley LLP
shall not constitute notice	55 Hudson Yards
to the Investor) to:	New York, New York 10001
	Attention: Divakar Gupta; Bill Roegge
	Email: dgupta@cooley.com; broegge@cooley.com

 

8.6          Amendments; Waivers. This Agreement and any term hereof may be amended, terminated or waived only with the written consent of the Company and the Investor. No waiver of any default with respect to any provision, condition or requirement of this Agreement shall be deemed to be a continuing waiver in the future or a waiver of any subsequent default or a waiver of any other provision, condition or requirement hereof, nor shall any delay or omission of either party to exercise any right hereunder in any manner impair the exercise of any such right.

 

8.7          Construction. When a reference is made in this Agreement to an Article, a Section, Exhibit or Schedule, such reference shall be to an Article of, a Section of, or an Exhibit or Schedule to, this Agreement unless otherwise indicated. The table of contents and headings contained in this Agreement are for reference purposes only and shall not affect in any way the meaning or interpretation of this Agreement. Whenever the words “include”, “includes” or “including” are used in this Agreement, they shall be deemed to be followed by the words “without limitation”. Whenever the words “ordinary course of business” are used in this Agreement, they shall be deemed to be followed by the words “consistent with past practice”. The words “hereof”, “herein” and “hereunder” and words of similar import when used in this Agreement shall refer to this Agreement as a whole and not to any particular provision of this Agreement unless the context requires otherwise. The words “date hereof” when used in this Agreement shall refer to the date of this Agreement. The terms “or”, “any” and “either” are not exclusive. The word “extent” in the phrase “to the extent” shall mean the degree to which a subject or other thing extends, and such phrase shall not mean simply “if”. The word “will” shall be constructed to have the same meaning and affect as the word “shall”. All accounting terms used and not defined herein shall have the respective meanings given to them under GAAP. All terms defined in this Agreement shall have the defined meanings when used in any document made or delivered pursuant hereto unless otherwise defined therein. The definitions contained in this Agreement are applicable to the singular as well as the plural forms of such terms and to the masculine as well as to the feminine and neuter genders of such term. In the event that the Company Common Stock is listed on a national securities exchange other than the NYSE, all references herein to NYSE shall be deemed to be references to such other national securities exchange. Any agreement, instrument or statute defined or referred to herein or in any agreement or instrument that is referred to herein means such agreement, instrument or statute as from time to time amended, modified or supplemented, including (in the case of agreements or instruments) by waiver or consent and (in the case of statutes) by succession of comparable successor statutes and references to all attachments thereto and instruments incorporated therein. Unless otherwise specifically indicated, all references to “dollars” or “$” shall refer to the lawful money of the United States. References to a Person are also to its permitted assigns and successors. When calculating the period of time between which, within which or following which any act is to be done or step taken pursuant to this Agreement, the date that is the reference date in calculating such period shall be excluded (unless, otherwise required by Law, if the last day of such period is not a Business Day, the period in question shall end on the next succeeding Business Day). The parties hereto have participated jointly in the negotiation and drafting of this Agreement and, in the event an ambiguity or question of intent or interpretation arises, this Agreement shall be construed as jointly drafted by the parties hereto and no presumption or burden of proof shall arise favoring or disfavoring any party hereto by virtue of the authorship of any provision of this Agreement.

 

 

8.8          Successors and Assigns. This Agreement shall be binding upon and inure to the benefit of the parties and their successors and permitted assigns. Neither the Company nor the Investor may assign (whether by operation of law or otherwise) this Agreement or any rights or obligations hereunder without the prior written consent of the other party hereto; provided that the Investor may assign its rights under this Agreement to any of its Affiliates.

 

8.9          Persons Entitled to Benefit of Agreement. This Agreement is intended for the benefit of the parties hereto and their respective permitted successors and assigns and is not for the benefit of, nor may any provision hereof be enforced by, any other Person.

 

8.10        Specific Enforcement. The parties hereto agree that irreparable damage for which monetary relief, even if available, would not be an adequate remedy, may occur in the event that any provision of this Agreement is not performed in accordance with its specific terms or is otherwise breached. The parties acknowledge and agree that (a) the parties shall be entitled to an injunction or injunctions, specific performance or other equitable relief to prevent breaches or threatened breaches of this Agreement and to enforce specifically the terms and provisions hereof in the courts described in Section 8.11 without bond or proof of damages or otherwise (in each case, subject to the terms and conditions of this Section 8.10), this being in addition to any other remedy to which they are entitled under this Agreement and (b) the right of specific enforcement is an integral part of the Transactions and without that right, neither the Company nor the Investor would have entered into this Agreement. The parties hereto agree not to assert that a remedy of specific enforcement is unenforceable, invalid, contrary to Law or inequitable for any reason, and agree not to assert that a remedy of monetary damages would provide an adequate remedy or that the parties otherwise have an adequate remedy at law. The parties hereto acknowledge and agree that any party seeking an injunction or injunctions to prevent breaches of this Agreement and to enforce specifically the terms and provisions of this Agreement in accordance with this Section 8.10 shall not be required to provide any bond or other security in connection with any such order or injunction.

 

8.11        Governing Law; Jurisdiction. This Agreement (and all claims, controversies and causes of action arising under, in connection with or otherwise relating to, this Agreement) shall be governed by, and construed in accordance with, the internal laws of the State of Delaware without regard to the choice of law principles thereof. Each of the parties hereto irrevocably submits to the exclusive jurisdiction of the Delaware Chancery Court (or, if the Delaware Chancery Court shall be unavailable, then any federal court of the United States of America sitting in the State of Delaware) for the purpose of any suit, action, proceeding or judgment relating to or arising out of this Agreement and the Transactions. Service of process in connection with any such suit, action or proceeding may be served on each party hereto anywhere in the world by the same methods as are specified for the giving of notices under this Agreement. Each of the parties hereto irrevocably consents to the jurisdiction of any such court in any such suit, action or proceeding and to the laying of venue in such court. Each party hereto irrevocably waives any objection to the laying of venue of any such suit, action or proceeding brought in such courts and irrevocably waives any claim that any such suit, action or proceeding brought in any such court has been brought in an inconvenient forum.

 

8.12        WAIVER OF JURY TRIAL. EACH PARTY HERETO ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY WHICH MAY ARISE UNDER THIS AGREEMENT IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES, AND THEREFORE IT HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT AND ANY OF THE AGREEMENTS DELIVERED IN CONNECTION HEREWITH OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY. EACH PARTY CERTIFIES AND ACKNOWLEDGES THAT (A) NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER, (B) IT UNDERSTANDS AND HAS CONSIDERED THE IMPLICATIONS OF SUCH WAIVER, (C) IT MAKES SUCH WAIVER VOLUNTARILY AND (D) IT HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVER AND CERTIFICATIONS IN THIS SECTION 8.12.

 

 

8.13        Counterparts; Execution. This Agreement may be executed in two (2) or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. Counterparts may be delivered via electronic mail (including pdf or any electronic signature complying with the U.S. federal ESIGN Act of 2000, e.g., www.docusign.com) or other transmission method and any counterpart so delivered shall be deemed to have been duly and validly delivered and be valid and effective for all purposes.

 

8.14         Adjustments in Share Numbers and Prices. In the event of any stock split, subdivision, dividend or distribution payable in shares of Company Common Stock (or other securities or rights convertible into, or entitling the holder thereof to receive directly or indirectly shares of Company Common Stock), combination or other similar recapitalization or event occurring after the date hereof and prior to the Closing, each reference in any Transaction Document to a number of shares or a price per share shall be deemed to be amended to appropriately account for such event.

 

8.15        Severability. If any provision hereof should be held invalid, illegal or unenforceable in any respect, then, to the fullest extent permitted by law, (a) all other provisions hereof shall remain in full force and effect and shall be liberally construed in order to carry out the intentions of the parties as nearly as may be possible and (b) the parties shall use their best efforts to replace the invalid, illegal or unenforceable provision(s) with valid, legal and enforceable provision(s) which, insofar as practical, implement the purposes of such provision(s) in this Agreement.

 

[Signature Pages To Follow]

 

 

In Witness Whereof, the parties hereto have caused this Investment Agreement to be duly executed by their respective authorized signatories as of the date first indicated above.

 

	COMPANY:
	Perspective Therapeutics, Inc.
	By:	/s/ Johan (Thijs) Spoor
		Johan (Thijs) Spoor
		Chief Executive Officer

 

 

In Witness Whereof, the parties hereto have caused this Investment Agreement to be duly executed by their respective authorized signatories as of the date first indicated above.

 

	INVESTOR:
	Lantheus Alpha Therapy, LLC
	By:	/s/ Mary Anne Heino
	Name:	Mary Anne Heino
	Title:	Chief Executive Officer

         

 

Schedule 2.7

 

[***]

 

 

Exhibit 10.2

 

 

 

Certain information has been excluded from this exhibit (indicated by “[***]”) because such information is both (i) not material and (ii) the type that the company treats as private or confidential.

ASSET PURCHASE AGREEMENT

 

by and between

 

PROGENICS PHARMACEUTICALS, INC.,

 

as Seller,

 

PERSPECTIVE THERAPEUTICS, INC.,

 

as Purchaser,

 

AND

 

For purposes of Section 9.12 only

 

LANTHEUS MEDICAL IMAGING, INC.

 

as Guarantor

 

 

 

Dated as of January 8, 2024

 

TABLE OF CONTENTS

 

 

Page

 

ARTICLE 1 DEFINED TERMS		1
1.1	Defined Terms	1
ARTICLE 2 PURCHASE AND SALE		6
2.1	Purchase and Sale of Assets	6
2.2	Excluded Assets	7
2.3	Assumed Liabilities	8
2.4	Excluded Liabilities	8
2.5	The Closing	10
2.6	Transfer Taxes	10
2.7	Allocation of Purchase Price	10
2.8	Closing Deliveries of the Parties	10
ARTICLE 3 REPRESENTATIONS AND WARRANTIES REGARDING SELLER AND THE PURCHASED ASSETS		11
3.1	Organization, Good Standing and Other Matters	11
3.2	Authority	12
3.3	No Conflict; Required Filings and Consents	12
3.4	Title to, Condition, and Sufficiency of Purchased Assets	12
3.5	Compliance With Laws; Permits	13
3.6	Assumed Contracts; Material Contracts.	13
3.7	Litigation	14
3.8	Tax Matters	14
3.9	Real Property	14
3.10	Environmental Matters	15
3.11	Labor and Employment.	16
3.12	Brokers	16
3.13	No Additional Representations and Warranties	16
ARTICLE 4 REPRESENTATIONS AND WARRANTIES OF PURCHASER		17
4.1	Organization, Good Standing and Other Matters	17
4.2	Authority	17

 

 

TABLE OF CONTENTS
(continued)
	Page

 

4.3	No Conflict: Required Filings and Consents	17
4.4	Litigation	17
4.5	Solvency	17
4.6	No Additional Representations and Warranties; Independent Investigation	18
ARTICLE 5 COVENANTS AND AGREEMENTS		18
5.1	Conduct of Business Prior to the Closing	18
5.2	Further Assurances	19
5.3	Publicity	19
5.4	Notice of Certain Events.	19
5.5	Access to Information	20
5.6	Confidentiality	20
5.7	ISRA Compliance	20
5.8	Employee Matters.	21
5.9	Insurance	22
5.10	Bulk Sale	22
5.11	Estoppel Certificate	22
5.12	Transition Plan	22
ARTICLE 6 CONDITIONS TO CLOSING		22
6.1	Conditions Precedent to Obligations of Purchaser	22
6.2	Conditions Precedent to Obligations of Seller	23
6.3	Frustration of Closing Conditions	24
ARTICLE 7 SURVIVAL; INDEMNIFICATION		24
7.1	Survival of Representations, Warranties and Covenants	24
7.2	Indemnification by Seller	24
7.3	Indemnification by Purchaser	25
7.4	Indemnification Procedures.	25
7.5	Certain Limitations.	26
7.6	Exclusive Remedy	26
7.7	Tax Treatment of Indemnification Payments	27

 

 

TABLE OF CONTENTS

(continued)

Page

 

ARTICLE 8 TERMINATION		27
8.1	Termination of the Agreement	27
8.2	Procedure Upon Termination	28
8.3	Effect of Termination	28
ARTICLE 9 GENERAL PROVISIONS		28
9.1	Entire Agreement; Amendment	28
9.2	No Waiver	28
9.3	Severability	28
9.4	Expenses and Obligations	29
9.5	Notices	29
9.6	Counterparts	30
9.7	Governing Law; Submission to Jurisdiction; Consent to Service of Process.	30
9.8	Waiver of Jury Trial	30
9.9	Assignment	30
9.10	Specific Enforcement	31
9.11	Third-Party Beneficiaries	31
9.12	Guarantee	31
9.13	No Recourse Against Nonparty Affiliates	31
9.14	Headings; Construction	32

 

  

ASSET PURCHASE AGREEMENT

 

THIS ASSET PURCHASE AGREEMENT (this “Agreement”), dated as of January 8, 2024, is entered into by and between Perspective Therapeutics, Inc., a Delaware corporation (“Purchaser”) and Progenics Pharmaceuticals, Inc., a Delaware corporation (“Seller”) and, for purposes of Section 9.12 only, Lantheus Medical Imaging, Inc., Inc. a Delaware corporation (“Guarantor”). Purchaser and Seller are, from time to time, referred to individually herein as a “Party,” and collectively as the “Parties.”

 

RECITALS

 

WHEREAS, Seller is, among other things, a subtenant at the manufacturing facility located at [***] (such facility as more particularly described in the Sublease (as defined herein)) that is subleased by Seller pursuant to the Sublease (such facility, including any real property associated therewith, the “Somerset Facility”); and

 

WHEREAS, Purchaser desires to assume the Seller’s interest as subtenant in the Sublease of the Somerset Facility and purchase from Seller, and Seller desires to assign its interest as subtenant the Sublease of the Somerset Facility and sell to Purchaser, certain assets and liabilities of Seller exclusively relating to the Somerset Facility upon the terms and subject to the conditions set forth in this Agreement.

 

NOW, THEREFORE, in consideration of the premises and the mutual representations, warranties, covenants, agreements and conditions set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties, intending to be legally bound, hereby agree as follows:

 

ARTICLE 1
DEFINED TERMS

 

1.1    Defined Terms. The following capitalized terms shall have the following meanings in this Agreement:

 

“Action” means any claim, action, suit, charge, complaint, citation, demand, notice of violation, grievance, arbitration, inquiry, mediation, audit, investigation, litigation, hearing, appeal, or other proceeding (whether civil, criminal or administrative) commenced, brought, conducted or heard by or before any Governmental Authority or arbitrator.

 

“Affiliate” of any Person means any Person which, directly or indirectly, controls or is controlled by that Person, or is under common control with that Person. For the purposes of this definition, “control” (including, with correlative meaning, the terms “controlled by” and “under common control with”), as used with respect to any Person, shall mean the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of such Person, whether through ownership of voting securities, by contract or otherwise.

 

 

“Ancillary Documents” means collectively the Disclosure Letter, the Bill of Sale, the Assignment and Assumption of Sublease and the Assignment and Assumption Agreement.

 

“Benefit Plan” means any benefit, health and welfare, retirement, employment, consulting, compensation, incentive, bonus, stock option, restricted stock, stock appreciation right, phantom equity, change in control, severance, vacation, paid time off, welfare and fringe-benefit agreement, plan, policy and program in effect and covering one or more current or former employees of Seller or any of its Subsidiaries, current or former directors of Seller or any of its Subsidiaries or the beneficiaries or dependents of any such Persons, and which is maintained, sponsored, contributed to, or required to be contributed to by Seller or any of its Subsidiaries, or under which Seller or any of its Subsidiaries has any Liability.

 

“Business Day” means any day other than (a) a Saturday, Sunday or federal holiday or (b) a day on which commercial banks in New York, New York are authorized or required to be closed.

 

“Code” means the Internal Revenue Code of 1986, as amended.

 

“Contract” means any written or oral commitment, agreement, note, letter of credit, mortgage, indenture, lease (whether for real or personal property), license, arrangement, contract, subcontract, undertaking, understanding or other legally-binding obligation of any kind or character.

 

“Environmental Laws” means all Laws concerning or relating to (a) the pollution or protection of the environment or natural resources, (b) human health and safety (relating to Hazardous Substances), (c) public lands or the use thereof, or (d) the generation, handling, transportation, treatment, storage, disposal, distribution, labeling, Release, threatened Release, control, remediation, mitigation, or cleanup of Hazardous Substances.

 

“ERISA” means the Employee Retirement Income Security Act of 1974, as amended, and the regulations issued thereunder.

 

“FDA” means the United States Food and Drug Administration, or any successor agency thereto.

 

“Fraud” means, with respect to a Party, an actual and intentional misrepresentation of a material existing fact with respect to the making of any representation or warranty in Article 3 or Article 4, made by such Party, (a) with respect to Seller, with Seller’s Knowledge or (b) with respect to Purchaser, with Purchaser’s actual knowledge, in each case of its falsity and made for the purpose of inducing the other party to act, and upon which the other party justifiably relies with resulting Losses.

 

“Governmental Authority” means any domestic or foreign national, state, multi-state or municipal or other local government, any subdivision, agency, commission or authority thereof, or any quasi-governmental or private body exercising any regulatory or taxing authority thereunder (including the IRS).

 

 

“Guarantor” means Lantheus Medical Imaging, Inc., a Delaware corporation.

 

“Hazardous Substances” means any substance, material, or waste that is regulated under or may form the basis of liability under Environmental Laws, and includes petroleum and all derivatives thereof or any substitutes thereof, asbestos or any asbestos-containing materials, per- or poly-fluoroalkyl substances (“PFAS”), polychlorinated biphenyls, 1,4-dioxane, toxic mold, and radioactive materials.

 

“Intellectual Property” means all right, title and interest in or to the following under the Laws of the United States or any other jurisdiction: (a) trademarks and service marks, including all applications and registrations and the goodwill connected with the use of and symbolized by the foregoing; (b) copyrights, including all applications and registrations related to the foregoing; and (c) patents and patent applications.

 

“Investment Agreement” means that certain Investment Commitment Agreement, dated as of January 8, 2024 by and between Purchaser and Lantheus Alpha Therapy, LLC, a Delaware limited liability company, as amended, amended and restated or otherwise modified from time to time.

 

“IRS” means the United States Internal Revenue Service.

 

“ISRA” means the Industrial Site Recovery Act, N.J.S.A. 13:lK-6 et seq., the regulations promulgated thereunder, and any requirements of the Sublease related to the foregoing.

 

“Knowledge” means the actual knowledge of [***] and [***] [***].

 

“Law” means any federal, state, local, municipal, foreign, international, multinational, or other administrative order, constitution, law, ordinance, principle of common law, regulation, statute or treaty.

 

“Leasehold Interests” means (all and singular) the interests, estates, rights, privileges, titles, easements, options and appurtenances belonging, or in any way appertaining, Seller as tenant, subtenant or occupant under the Sublease.

 

“Liability” means any liability, debt, obligation, penalty, fine or other loss, cost or expense of any kind or nature whatsoever, whether asserted or unasserted, absolute or contingent, known or unknown, accrued or unaccrued, liquidated or unliquidated, and whether due or to become due.

 

“Liens” means all liens, pledges, voting agreements, voting trusts, proxy agreements, security interests, restrictions, mortgages and other possessory interests, conditional sale or other title retention agreements, assessments, covenants, licenses, restrictions, rights of first refusal, defects in title, encroachments and other burdens, options, ground leases, or encumbrances of any kind.

 

 

“Losses” means, with respect to any Person, any actual losses, Liabilities, claims, demands, judgments, damages, suits, actions, causes of action, costs, damages, deficiencies, penalties, fines or expenses (including interest, penalties, reasonable attorneys’ and other professionals’ fees and expenses, and court costs) against or affecting such Person; provided that, Losses shall not include any punitive, special or consequential damages, except to the extent any such damages are awarded to any Governmental Authority or pursuant to any Third-Party Claim or to the extent any such consequential damages were reasonably foreseeable.

 

“Material Adverse Effect” means any event, occurrence, fact, condition or change that is, or would reasonably be expected to become, individually or in the aggregate, materially adverse to the condition or value of the Purchased Assets or the ability of Seller to consummate the transactions contemplated hereby on a timely basis; provided, however, that none of the following (either alone or in combination), and no effect, change, event or occurrence arising out of, or resulting from, the following, shall constitute or be taken into account in determining whether a Material Adverse Effect has occurred, is continuing or would reasonably be expected to occur: (a) any effect, change, event or occurrence generally affecting (i) the industry in which Seller operates or (ii) the economy, credit or financial or capital markets, in the United States or elsewhere in the world, including changes or prospective changes in interest or exchange rates, commodity prices, monetary policy or inflation or in government spending and budgets (including any government shutdown); or (b) to the extent arising out of, resulting from or attributable to (i) changes or prospective changes in Law or in accounting standards, or any changes or prospective changes in the interpretation or enforcement of any of the foregoing, or any changes or prospective changes in general legal, regulatory, political or social conditions, (ii) the negotiation, execution, announcement or performance of this Agreement, the other Ancillary Documents or the Investment Agreement or the consummation of the transactions contemplated hereby or thereby, including the impact thereof on relationships, contractual or otherwise, with customers, suppliers, distributors, partners, employees or regulators, or any Action arising from or relating to this Agreement, any other Ancillary Document, the Investment Agreement or the transactions contemplated hereby or thereby, (iii) acts of war (whether or not declared), military activity, sabotage, cyber-intrusion, civil disobedience or domestic or international terrorism, or any escalation or worsening or de-escalation or improvement thereof, (iv) volcanoes, tsunamis, pandemics, epidemics, disease outbreaks or other public health conditions (or other restrictions that relate to, or arise out of, a pandemic, epidemic or disease outbreak), earthquakes, floods, hurricanes, wildfires, blackouts, tornados or other natural disasters, weather-related events, force majeure events or other comparable events, or any escalation or worsening or de-escalation or improvement thereof, (v) any action taken by Seller that is required by this Agreement, any other Ancillary Document or the Investment Commitment Agreement or with Purchaser’s written consent or at Purchaser’s written request, or the failure to take any action by Seller if that action is not permitted by this Agreement, any other Ancillary Document or the Investment Commitment Agreement, or (vi) any change resulting or arising from the identity of, or any facts or circumstances relating to, Purchaser or any of its Affiliates.

 

“NJ Radiological License” means that certain New Jersey State Radioactive Materials License No. [***] granted to Seller by the State of New Jersey Department of Environmental Protection, Bureau of Environmental Radiation.

 

 

“Option Agreement” means that certain Option Agreement dated as of January 8, 2024 by and between Purchaser and Lantheus Alpha Therapy, LLC, a Delaware limited liability company.

 

“Order” means any award, decision, injunction, judgment, ruling or verdict entered, issued, made or rendered by any Governmental Authority or arbitrator.

 

“Organizational Documents” means (a) the articles or certificates of incorporation and the by-laws of a corporation, (b) the operating or limited liability company agreement and the certificate of formation or articles of organization of a limited liability company, (c) any charter, joint venture agreement or similar document adopted or filed in connection with the creation, formation or organization of a Person, and (d) any amendment to or equivalent of any of the foregoing.

 

“Permit” means all permits, authorizations, certificates, franchises, licenses, registrations, exemptions, consents and other approvals from any Governmental Authority.

 

“Permitted Liens” means (a) liens for Taxes not yet due and payable or being contested in good faith by appropriate proceedings provided adequate reserves have been established for such contested Liens for Taxes; (b) mechanics’, carriers’, workmen’s, repairmen’s or other like liens arising or incurred in the ordinary course of business; (c) easements, rights of way, zoning ordinances and other similar encumbrances affecting the Somerset Facility; (d) liens arising under original purchase price conditional sales contracts and equipment leases with third parties entered into in the ordinary course of business; and (e) other imperfections of title or Liens, if any, that have not had, and would not have, a Material Adverse Effect.

 

“Person” means any individual, corporation (including any non-profit corporation), general or limited partnership, limited liability company, joint venture, estate, trust, association, organization, labor union or any other entity or Governmental Authority.

 

“Purchase Price” means an amount equal to $8,000,000 in cash.

 

“Release” means any emission, spill, seepage, leak, escape, leaching, discharge, injection, pumping, pouring, emptying, dumping, disposal, migration, or release of Hazardous Substances from any source into or upon the indoor or outdoor environment.

 

“Remediation” means any investigation, clean-up, removal action, remedial action, restoration, repair, abatement, response action, corrective action, monitoring, sampling and analysis, installation, reclamation, closure, or post-closure in connection with the suspected, threatened or actual Release of Hazardous Substances.

 

“Representatives” means, with respect to a Person, such Person’s officers, directors, stockholders, equityholders, members, employees, consultants, attorneys, accountants, financial advisors, and other agents.

 

“Security Deposit” means the Security Deposit as defined in the Section 6 of the Sublease.

 

 

“Sublease” means that certain Sublease Agreement, dated as of January 31, 2019, by and between Seller, as subtenant, and [***], as sublandlord, as amended or otherwise modified prior to the date hereof.

 

“Subsidiary” means, when used with respect to any Person, any corporation, limited liability company, partnership, association, trust or other entity of which (x) securities or other ownership interests representing more than 50% of the ordinary voting power (or, in the case of a partnership, more than 50% of the general partnership interests) or (y) sufficient voting rights to elect at least a majority of the board of directors or other governing body are, as of such date, owned by such Person or one or more Subsidiaries of such Person or by such Person and one or more Subsidiaries of such Person.

 

“Tax” means any federal, state, local or foreign tax, imposed by any Governmental Authority (including any income, profits, net worth, excise, franchise, transfer, registration, branch profits, gross receipts, capital stock, capital gains, ad valorem, value-added, sales, use, production, alternative or add-on minimum, license, lease, service, service use, recapture, employment, unemployment, disability, documentary, intangible, property (including, personal, real, tangible and intangible property taxes), recording and stamp taxes, levies, imposts, duties, charges, assessments, or withholdings in the nature of a tax, payroll, or social security tax together with any penalties, fines, additions to tax and interest thereon, whether disputed or not).

 

“Tax Return” means any return, declaration, report, claim for refund, information return or statement or other document filed or required to be filed with respect to, or in connection with the determination, assessment or collection of, Taxes, including any schedule or attachment thereto, and including any amendment thereof.

 

“Transaction Documents” mean this Agreement, the Investment Agreement, the Option Agreement, the Ancillary Agreements and the schedules, annexes and exhibits attached hereto and thereto.

 

“Treasury Regulations” means the final and temporary Treasury regulations promulgated under the Code.

 

ARTICLE 2
PURCHASE AND SALE

 

2.1    Purchase and Sale of Assets. At the Closing (as defined below), subject to the terms and conditions set forth herein, Seller shall (or shall cause its applicable Affiliate to) sell, assign, transfer, convey and deliver to Purchaser, and Purchaser shall purchase and assume from Seller (or Seller’s applicable Affiliate), all of Seller’s or such Affiliate’s right, title, benefit and interest in, to and under the following assets, properties and rights of Seller and its Affiliates, to the extent that such assets, properties and rights exist as of the Closing Date (as defined below) and exclusively relate to the Somerset Facility (collectively, the “Purchased Assets”), in each case, free and clear of all Liens, other than Permitted Liens, and in exchange for the consideration set forth in this Article 2:

 

(a)    all Contracts directly and exclusively relating to any of the Purchased Assets and the Somerset Facility (the “Assumed Contracts”), consisting as of the date hereof of the Contracts listed on Section 2.1(a) of the Disclosure Letter, including the Sublease;

 

 

(b)    all rights of Seller as lessee under the leases listed on the Disclosure Letter, including all rights of Seller in and to the improvements at the Somerset Facility situated on the premises leased under the Sublease and rights to the Security Deposit;

 

(c)    all books, records and data (whether in electronic form or otherwise) to the extent exclusively related to the Purchased Assets or Assumed Liabilities, including machinery and equipment maintenance files, supplier lists, production data, quality control records and procedures, and all documentation that relates to Seller’s standard operating procedures (SOPs) exclusively relating to the operation of the Somerset Facility (it being understood that Seller may retain a copy of such books, records and data to the extent necessary for compliance purposes or in connection with its ordinary course document retention procedures);

 

(d)    any insurance proceeds to the extent arising in connection with damage to the Purchased Assets occurring after the date hereof and prior to Closing (it being understood and agreed that nothing herein shall prevent Seller from applying such proceeds towards repairing damage to such Purchased Assets prior to Closing);

 

(e)    all goodwill and the going concern value of the Somerset Facility and the Purchased Assets;

 

(f)    all furniture, fixtures, equipment, supplies and other tangible personal property of Seller located at the Somerset Facility or otherwise exclusively related to the Somerset Facility, including the items listed on Section 2.1(b) of the Disclosure Letter (the “Tangible Personal Property”); and

 

(g)    all Permits that are held or used by (or which have been filed or delivered by or on behalf of) Seller and required for the operation of the Somerset Facility as currently operated or for the ownership and use of the Purchased Assets as currently constituted, including all Permits listed on Section 2.1(g) of the Disclosure Letter, but only to the extent such Permits may be transferred under applicable Law and are exclusively related to the Somerset Facility.

 

2.2    Excluded Assets. Other than the Purchased Assets subject to Section 2.2, Purchaser expressly understands and agrees that it is not purchasing or acquiring, and Seller is not selling or assigning, any other assets or properties of Seller or any of its respective Affiliates, and all such other assets and properties shall be excluded from the Purchased Assets (the “Excluded Assets”). Excluded Assets include the following assets and properties of Seller and its Affiliates:

 

(a)    all cash and cash equivalents, bank accounts and securities of Seller and its Affiliates;

 

(b)    all Contracts other than the Assumed Contracts;

 

(c)    all Intellectual Property of Seller and its Affiliates;

 

 

(d)    (i) the corporate seals, organizational documents, minute books, stock books, Tax Returns, books of account or other records having to do with the corporate organization of Seller and its Affiliates, (ii) all employee-related or employee benefit-related files or records, (iii) any other books and records which Seller or any of its Affiliates is prohibited from disclosing or transferring to Purchaser under applicable Law and (iv) any other books and records of Seller and its Affiliates that are not exclusively related to the Purchased Assets or the Assumed Liabilities;

 

(e)    subject to Section 2.1(d), all insurance policies of Seller and its Affiliates and all rights to applicable claims and proceeds thereunder;

 

(f)    all Benefit Plans and trusts or other assets attributable thereto;

 

(g)    all rights to any action, suit or claim of any nature available to or being pursued by Seller or any of its Affiliates, whether arising by way of counterclaim or otherwise;

 

(h)    all assets, properties and rights used, owned or leased by Seller or any of its Affiliates that are not related to the Somerset Facility;

 

(i)    the assets, properties and rights specifically set forth on Section 2.2(i) of the Disclosure Letter; and

 

(j)    the rights which accrue or will accrue to Seller under this Agreement or the Ancillary Documents. 

 

2.3    Assumed Liabilities. Subject to the terms and conditions set forth herein, Purchaser shall assume and agree to pay, perform and discharge when due any and all Liabilities of Seller and its Affiliates arising out of or relating to the Purchased Assets to the extent arising after the Closing, other than the Excluded Liabilities (collectively, the “Assumed Liabilities”), including the following:

 

(a)    all Liabilities arising under or relating to the Assumed Contracts (including the Sublease) from and after the Closing;

 

 

(b)    all Liabilities of any Transferred Service Provider relating to his or her employment or engagement with Purchaser or its applicable Affiliate (regardless of whether such employment or engagement arises prior to, on or after the Closing Date); and

 

(c)    all Liabilities of Seller set forth on Section 2.3(c) of the Disclosure Letter. 

 

2.4    Excluded Liabilities. Purchaser shall not assume and shall not be responsible to pay, perform or discharge any of the following Liabilities (collectively, the “Excluded Liabilities”):

 

(a)    any Liabilities to the extent arising out of or relating to the Assumed Contracts at or prior to the Closing;

 

(b)    any Liabilities to the extent arising out of or relating to the Excluded Assets;

 

(c)    any Liabilities for (i) Taxes of Seller, or relating to the Purchased Assets or the Assumed Liabilities, for any taxable period ending on or prior to the Closing Date and (ii) any other Taxes of Seller (other than Taxes allocated to Purchaser under Section 2.6) for any taxable period;

 

(d)    any Liabilities of Seller relating to or arising out of (i) the employment, or termination of employment, of any current or former employee of Seller prior to or at the Closing, including to all Liabilities concerning employment and employment practices, terms and conditions of employment, wages and hours, plant closing notification, classification of employees and independent contractors, classification of employees as exempt or non-exempt, equitable pay practices, privacy rights, labor disputes and labor practices, employment discrimination and harassment, including sexual harassment, workers’ compensation or long-term disability policies, unemployment compensation, retaliation, immigration, family and medical leave and other leave entitlements, including sick leave, disability rights and accommodations, occupational safety and health and other Laws in respect of any reduction in force (including notice, information and consultation requirements), and (ii) workers’ compensation claims of any current or former employee of Seller which relate to events occurring on or prior to the Closing Date;

 

(e)    any Liabilities relating to Seller’s employees to the extent arising at or prior to the Closing, including Liabilities arising from or relating to (i) claims asserted by employees for acts or omissions occurring on or before the Closing and (ii) the employment, termination of employment of Seller’s employees or Seller’s employment practices at or before the Closing;

 

(f)    any Liabilities relating to Seller’s consultants and independent contractors (if any) to the extent relating to Seller’s engagement thereof prior to the Closing, including Liabilities arising from or relating to (i) claims asserted by independent contractors for acts or omissions occurring on or before the Closing; and (ii) Seller’s engagement, termination of engagement or contracting practices at or before the Closing;

 

(g)    any Liabilities related to the Benefit Plans or any other compensation or benefit arrangements of Seller, Parent or any of its or their Subsidiaries;

 

(h)    any Liabilities of Seller arising or incurred in connection with the negotiation, preparation, investigation and performance of this Agreement, the Ancillary Documents and the transactions contemplated hereby and thereby, including fees and expenses of counsel, accountants, consultants, advisers and others;

 

(i)    any Liabilities under Environmental Law or with respect to Hazardous Substances to the extent (A) arising from or relating to facts, circumstances or conditions, existing, initiated or occurring prior to the Closing, and (B) relating to the Purchased Assets or the Somerset Facility;

 

(j)    any Liabilities in respect of any pending or threatened Action arising out of, relating to or otherwise in respect of the Purchased Assets to the extent such Action relates to such Purchased Assets prior to the Closing Date;

 

 

(k)    any Liabilities arising out of use, misuse, negligent, or failure to maintain the Somerset Facility that arise or relate acts or omissions occurring on or prior to the Closing Date;

 

(l)    any Liabilities arising out of, in respect of or in connection with the failure by Seller or any of its Affiliates to comply with any Law or Order; and

 

(m)    any Liabilities of Seller set forth on Section 2.4(m) of the Disclosure Letter; and

 

(n)    any Liabilities of Seller with respect to its performance and completion of the meter repair project at the Somerset Facility (which Seller anticipates will have an aggregate cost of approximately $[***]).

 

2.5    The Closing. Unless this Agreement is earlier terminated pursuant to the provisions of Section 8.1(a), and subject to the satisfaction or waiver (to the extent permitted by applicable Law) of the conditions set forth in Section 6.1 and Section 6.2, the closing of the transactions contemplated by this Agreement (the “Closing”) shall take place on a date to be mutually agreed upon by Purchaser and Seller, which date shall be no later than three (3) Business Days after the satisfaction or waiver of all the conditions to the Closing set forth in Article 6 (other than the conditions that by their nature are to be satisfied at the Closing, but subject to the satisfaction or waiver of such conditions at the Closing), or such other time or date as may be mutually agreed by Purchaser and Seller (the date on which the Closing actually occurs, the “Closing Date”). The Closing shall take place remotely via the electronic exchange of documents and transfer of funds.

 

2.6    Transfer Taxes. All transfer, documentary, sales, use, stamp, registration, excise, recording, registration, value added and other such similar Taxes and fees (including any penalties and interest) that become payable in connection with or by reason of the execution of this Agreement and other transactions contemplated hereby (all such Taxes, “Transfer Taxes”) shall be borne and paid equally by Seller and Purchaser.

 

2.7    Allocation of Purchase Price. Within [***] after the Closing Date, Seller shall deliver to Purchaser a schedule allocating the Purchase Price (and the Assumed Liabilities to the extent properly taken into account as consideration for the Purchased Assets for Tax purposes) among the Purchased Assets (the “Allocation Schedule”). The Allocation Schedule shall be prepared in accordance with Section 1060 of the Code (and applicable Treasury Regulations) to the extent Seller determines Section 1060 of the Code is applicable. The Allocation Schedule shall be deemed final unless Purchaser notifies Seller in writing that Purchaser objects to one or more items reflected in the Allocation Schedule within [***] after delivery of the Allocation Schedule to Purchaser. In the event of any such objection, Seller and Purchaser shall negotiate in good faith to resolve such dispute; provided, however, that if Seller and Purchaser are unable to resolve any dispute with respect to the Allocation Schedule within [***] after the delivery of the Allocation Schedule to Purchaser, such dispute shall be resolved by an impartial nationally recognized accounting firm mutually appointed by Seller and Purchaser. The fees and expenses of such accounting firm shall be borne equally by Seller and Purchaser. Seller and Purchaser agree to file their respective IRS Forms 8594 and all federal, state and local Tax Returns in accordance with the Allocation Schedule.

 

 

2.8    Closing Deliveries of the Parties. At or prior to the Closing:

 

(a)    Purchaser shall deliver to Seller each of the following:

 

(i)    a customary Assignment and Assumption Agreement in a form reasonably satisfactory to the Parties (the “Assignment and Assumption Agreement”), duly executed by an authorized officer of Purchaser;

 

(ii)    with respect to the Sublease, a customary Assignment and Assumption of Sublease in a form reasonably satisfactory to the Parties (the “Assignment and Assumption of Sublease”), duly executed by an authorized officer of Purchaser; and

 

(iii)    a certificate duly executed by an officer of Purchaser, in form and substance reasonably satisfactory to Seller, dated the Closing Date, to the effect that each of the conditions specified in Section 6.2 has been satisfied in all respects.

 

(b)    Seller shall deliver to Purchaser each of the following:

 

(i)    A customary bill of sale in a form reasonably satisfactory to the Parties (the “Bill of Sale”), duly executed by an authorized officer of Seller;

 

(ii)    the Assignment and Assumption Agreement duly executed by an authorized officer of Seller;

 

(iii)    the Assignment and Assumption of Sublease duly executed by an authorized officer of Seller;

 

(iv)    a certificate duly executed by an officer of Seller, in form and substance reasonably satisfactory to Purchaser, dated the Closing Date, to the effect that each of the conditions specified in Section 6.1 have been satisfied in all respects; and

 

(v)    an IRS Form W-9 duly executed by Seller.

 

(c)    Seller (or its applicable Affiliate) shall irrevocably be entitled to retain the Holdback Amount (as defined in the Option Agreement), which shall be deemed to satisfy in full Purchaser’s obligation to pay the Purchase Price to Seller under this Agreement.

 

ARTICLE 3
REPRESENTATIONS AND WARRANTIES REGARDING SELLER AND THE PURCHASED ASSETS

 

Except as disclosed in the confidential disclosure letter delivered by Seller to Purchaser prior to the execution of this Agreement (the “Disclosure Letter”), which Disclosure Letter is arranged in paragraphs corresponding to the numbered and lettered paragraphs contained in this Article 3 (and the disclosure in any such numbered and lettered section therein shall qualify any other section hereof to which the relevance or applicability of such disclosure is reasonably apparent on the face of such disclosure), Seller hereby makes the representations and warranties contained in this Article 3 to Purchaser.

 

 

3.1    Organization, Good Standing and Other Matters. Seller is (i) duly organized, validly existing and in good standing under the laws of the State of Delaware and (ii) has all requisite corporate power and authority to own, lease and operate its assets and properties and to carry on its business as now being conducted and as presently proposed to be conducted by it except where such failure would not materially and adversely affect the Purchased Assets or Sellers’s ability to consummate the transactions contemplated by this Agreement.

 

3.2    Authority. Seller has all requisite corporate power and authority to execute and deliver this Agreement, to perform its obligations hereunder and to consummate the transactions contemplated hereby. The execution, delivery and performance of this Agreement by Seller and the consummation by Seller of the transactions contemplated hereby have been duly authorized and approved by Seller’s board of directors in all material respects, and no other company action or action on the part of Seller or its stockholders is necessary to authorize the execution, delivery and performance of this Agreement by Seller and the consummation by Seller of the transactions contemplated hereby. This Agreement has been duly executed and delivered by Seller and, assuming the due execution and delivery of this Agreement by Purchaser, constitutes a valid and binding obligation of Seller enforceable against it in accordance with its terms, except to the extent that such enforceability may be subject to, and limited by, applicable bankruptcy, insolvency, reorganization, moratorium, receivership and similar laws affecting the enforcement of creditors’ rights generally and general equitable principles (collectively, “Equitable Principles”).

 

3.3    No Conflict; Required Filings and Consents. Other than the consent of the New Jersey Department of Environmental Protection, Bureau of Environmental Radiation to the transfer of the NJ Radiological License (such consent or the issuance of a reasonably similar license to Purchaser, the “Regulatory Approval”), and except as set forth on Section 3.3 of the Disclosure Letter, the execution and delivery of this Agreement and the consummation of the transactions contemplated hereby by Seller will not (i) violate the provisions of the Organizational Documents of Seller, (ii) violate any Law or Order applicable to Seller or the Purchased Assets in any material respect, (iii) require Seller to obtain any material consent or approval, or give any notice to, or make any filing with, any Governmental Authority on or prior to the Closing Date, (iv) result in a material violation or breach of (with or without due notice or lapse of time or both), give rise to any right of termination, cancellation or acceleration under, or require the consent of any third party to, any Assumed Contract or (v) result in the imposition or creation of any material Lien upon or with respect to any of the Purchased Assets except, for such violations, consents, defaults, breaches, violations or Liens that would not be material to Seller.

 

3.4    Title to, Condition, and Sufficiency of Purchased Assets.

 

(a)    Seller or one of its Affiliates has good and marketable title to, a valid Leasehold Interest in or a valid right to use, all of the Purchased Assets, except for Permitted Liens. Seller is the sole record and beneficial owner of, or the sole lessor of, as applicable, the Purchased Assets. None of the Purchased Assets is the subject of any Contract providing for payment on deferred terms or any similar arrangement, or retention of title or similar arrangement. Except as set forth on Section 3.4 of the Disclosure Letter, at the Closing, Seller will convey to Purchaser good and marketable title to all properties, assets and leasehold estates, tangible and intangible, constituting the Purchased Assets or any part thereof, free and clear of all Liens, except for Permitted Liens (subject to the Required Landlord Consents).

 

 

(b)    Except as would not, individually or in the aggregate, reasonably be expected to be material to the Purchased Assets (taken as a whole), (i) the buildings, structures, furniture, fixtures, machinery, equipment, vehicles and other items of real and tangible personal property included in the Purchased Assets are structurally sound, are in good operating condition and repair, are free from material defect, and are adequate for the uses for which they are currently being used, and none of such buildings, structures, furniture, fixtures, machinery, equipment, vehicles and other items of real and tangible personal property is in need of (or in the course of receiving) maintenance, repairs or replacement, except for ordinary, routine maintenance and repairs that are not, individually or in the aggregate, material in nature or cost and (ii) all such buildings, structures, furniture, fixtures, machinery, equipment, vehicles and other items of real and tangible personal property have been maintained by Seller in the ordinary course of business in a manner consistent with Seller’s typical practices.

 

(c)    Except as set forth on Schedule 3.4(c) to the Disclosure Letter, to the Seller’s Knowledge, as of the date hereof there are no facts or conditions affecting the Purchased Assets or the Somerset Facility which would reasonably be expected, individually or in the aggregate, to interfere in any material respect with the use, occupancy or operation of the Purchased Assets or the Somerset Facility as currently, as the date hereof, used, occupied or operated, or their adequacy for such use.

 

3.5    Compliance With Laws; Permits. Seller is, and has been for the past [***], in compliance with all Laws and Orders applicable to the Purchased Assets, except for any non-compliance that would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.

 

3.6    Assumed Contracts; Material Contracts. 

 

(a)    The Assumed Contracts constitute, as of the date hereof, all of the Contracts directly and exclusively relating to any of the Purchased Assets and the Somerset Facility. Except as would not, individually or in the aggregate, reasonably be expected to be material to the Purchased Assets (taken as a whole), each Assumed Contract is valid and binding on Seller in accordance with its terms and is in full force and effect (subject to the Equitable Principles) and none of Seller or, to Seller’s Knowledge, any other party thereto is in breach of or default under (or is alleged to be in breach of or default under) or has, as of the date hereof, provided or received any pending notice of any intention to terminate, any Assumed Contract.

 

 

(b)    Section 3.6 of the Disclosure Letter lists each of the following Contracts, if any, by which any of the Purchased Assets are bound or by which Seller is bound in connection with the Purchased Assets (such Contracts, being “Material Contracts”):

 

(i)    all Contracts with any Governmental Authority (“Government Contracts”);

 

(ii)    all Contracts for the sale of any of the Purchased Assets or for the grant to any Person of any option, right of first refusal or preferential or similar right to purchase any of the Purchased Assets;

 

(iii)    all powers of attorney with respect to the Purchased Assets.

 

(c)    Except as would not, individually or in the aggregate, reasonably be expected to be material to the Purchased Assets (taken as a whole), each Material Contract is valid and binding on Seller in accordance with its terms and is in full force and effect (subject to the Equitable Principles) and none of Seller or, to Seller’s Knowledge, any other party thereto is in breach of or default under (or is alleged to be in breach of or default under) or has, as of the date hereof, provided or received any pending notice of any intention to terminate, any Material Contract. True, correct, and correct copies of each Assumed Contract and Material Contract (including all modifications, amendments and supplements thereto and waivers thereunder) have been made available to Purchaser.

 

3.7    Litigation. There is no material Action pending or, to Seller’s Knowledge, threatened against Seller with respect to the Purchased Assets. During the past [***], there has been no material Action against Seller with respect to the Purchased Assets.

 

3.8    Tax Matters. There are no Liens for Taxes upon any of the Purchased Assets, except for Liens for Taxes not yet due and payable or being contested in good faith by appropriate proceedings provided adequate reserves have been established for such contested Liens for Taxes, nor, to Seller’s Knowledge, is any Governmental Authority in the process of imposing any Liens for Taxes on any of the Purchased Assets. With respect to the Purchased Assets (a) the Seller has filed all material Tax Returns that it was required to file under applicable laws and regulations, (b) all such Tax Returns were correct and complete in all material respects and were prepared in substantial compliance with all applicable laws and regulations, (c) all material Taxes due and owing (whether or not shown on any Tax Return) have been paid, (d) no federal, state, local, or non-U.S. tax audits or administrative or judicial Tax proceedings are pending or being conducted and the Seller has not received from any federal, state, local, or non-U.S. taxing authority any written notice of such audits or proceedings, (g) the Seller has not waived any statute of limitations in respect of Taxes or agreed to any extension of time with respect to a Tax assessment or deficiency and (h) the Purchased Assets do not include any entity treated as a partnership, corporation, or disregarded entity for Tax purposes.

 

 

3.9    Real Property. During the past [***], Seller has not received any written notice and, to Seller’s Knowledge, any oral notice of existing, pending or threatened (i) condemnation proceedings, expropriation, or other proceedings in eminent domain affecting the Somerset Facility, (ii) zoning, building code or other moratorium proceedings, or similar matters which would reasonably be expected to materially and adversely affect the ability to operate the Somerset Facility as currently operated or (iii) Liens (other than Permitted Liens) of any kind in respect of, or otherwise affecting, the Somerset Facility. During the past [***], neither the whole nor any material portion of the Somerset Facility has been damaged or destroyed by fire or other casualty. Seller has not assigned, collaterally assigned, leased, licensed, subleased, sublicensed, or granted any security interest in any such Sublease or any interest therein (other than Permitted Liens). All Permits required for the current use and grant of the Sublease have been obtained and, for the last [***], complied with in all material respects. Except as is not, individually or in the aggregate, material, to Seller’s Knowledge, the Somerset Facility, improvements thereon, or the condition or use thereof does not materially contravene or violate any applicable Law, or any restrictive covenant (whether or not permitted on the basis of prior nonconforming use, waiver or variance), and Seller has not received written notice, or, to Seller’s Knowledge, oral notice, to the effect of the foregoing. With respect to the Sublease, except as would not, individually or in the aggregate, reasonably be expected to be material to the Purchased Assets (taken as a whole): (i) such Sublease is legal valid, binding and enforceable and in full force and effect (subject to the Equitable Principles), (ii) Seller has provided to Purchaser a true, correct and complete copy of the Sublease, (iii) neither Seller nor, to Seller’s Knowledge, any other party to such Sublease is in breach or default under such Sublease, and (iv) except for the Required Landlord Consents and the Regulatory Approval, the assignment of the Sublease does not require the consent of any other party and will not result in a breach of or default under the Sublease, or otherwise cause the Sublease to cease to be legal, valid, binding, enforceable and in full force and effect following the Closing.

 

3.10    Environmental Matters. Except as would not, individually or in the aggregate, reasonably be expected to be material to the Purchased Assets (taken as a whole):

 

(a)    With respect to the Purchased Assets and the Somerset Facility, (i) Seller is, and during the past [***] has been, in material compliance with all Environmental Laws, and (ii) Seller has no material Liability under Environmental Laws or with respect to Hazardous Substances, and has not assumed, by contract, operation of law, or otherwise, any such Liability of any third party.

 

(b)    (i) Seller has been duly issued and possesses all material Permits issued pursuant to Environmental Laws required for the ownership and operation of the Purchased Assets and the Somerset Facility as currently owned and operated; (ii) a true, correct, and complete list of all such Permits, all of which are valid and in full force and effect, is set out in Section 3.10 of the Disclosure Letter; and (iii) no Action is pending or to Seller’s Knowledge, threatened to revoke, suspend, terminate or materially modify any such Permit.

 

(c)    With respect to the Purchased Assets or the Somerset Facility, (i) Seller has not received a written request for information from a Governmental Authority pursuant to any Environmental Law and (ii) no Action is pending, to Seller’s Knowledge, threatened in writing, alleging material non-compliance with or material Liability under any Environmental Law or with respect to Hazardous Substances.

 

(d)     (i) to Seller’s Knowledge Seller has not caused, and to Seller’s Knowledge there has not been, any Release of Hazardous with respect to the Purchased Assets or at, on under or from the Somerset Facility, and (ii) Seller has not arranged, by contract, agreement or otherwise, for the disposal, transportation, or treatment of Hazardous Substances at the Somerset Facility.

 

 

(e)    Seller does not own, operate or use, and to Seller’s Knowledge, none of the following are present at, the Somerset Facility: (i) underground storage tanks, (ii) dumps or landfills, (iii) surface impoundments, (iv) other units for the treatment, storage or disposal of Hazardous Substances, (v) asbestos, (vi) polychlorinated biphenyls, (vii) lead-based paint, (viii) PFAS, or (ix) toxic mold.

 

(f)    Seller has made available to Purchaser true, correct, and complete copies of all environmental assessments, reports, audits and material documents in Seller’s possession or control that relate to environmental conditions at the Somerset Facility or to Seller’s compliance with Environmental Laws with respect to the Purchased Assets or the Somerset Facility.

 

(g)    (i) Neither the Seller nor any of its officers, employees or, to the Seller’s Knowledge, any of its contractors or agents has committed any act, failed to act, made any statement, or failed to make any statement that reasonably would be expected to provide a basis for any Governmental Authority, including but not limited to the FDA, to deny, revoke, or not renew any Permits, or impose fines, penalties, or liabilities, including criminal penalties.

 

3.11    Labor and Employment.

 

(a)    Seller is not a party to or bound by any collective bargaining agreement, contract, or other agreement or understanding with a labor union or labor organization, nor is there any proceeding pending or, to Seller’s Knowledge, threatened in writing, asserting that Seller has committed an unfair labor practice (within the meaning of the National Labor Relations Act) or seeking to compel Seller or any of its affiliates to bargain with any labor organization as to wages or conditions of employment, nor is there any strike, work stoppage or other labor disruption or dispute involving it pending or, to Seller’s Knowledge, threatened, nor, to Seller’s Knowledge, is there any current activity involving its employees seeking to certify a collective bargaining unit or engaging in other organizational activity.

 

(b)    To the Seller’s Knowledge, each current employee of Seller is lawfully authorized to work or provide services for or to Seller in the United States and Seller has completed and retained employment verification paperwork required under applicable Laws, including the Immigration Reform and Control Act of 1986.

 

3.12    Brokers. Except for Jefferies LLC, no broker, finder or investment banker is entitled to any brokerage, finder’s or other fee or commission in connection with the transactions contemplated by this Agreement or any Ancillary Document based upon arrangements made by or on behalf of Seller.

 

3.13    No Additional Representations and Warranties. Except for the representations and warranties contained in this Article 3 (as modified by the Disclosure Letter), neither Seller nor any other Person makes any other express or implied representation or warranty with respect to Seller, the Purchased Assets, the Assumed Liabilities or the transactions contemplated by this Agreement, and Seller disclaims any other representations or warranties, whether made by Seller, any Affiliate of Seller or any of their respective Representatives. Except for the representations and warranties contained in Article 3 hereof (as modified by the Disclosure Letter), Seller (i) expressly disclaims any representation or warranty, expressed or implied, at common law, by statute, or otherwise, relating to the condition of the Purchased Assets (including any implied or expressed warranty of merchantability or fitness for a particular purpose, or of conformity to models or samples of materials) and (ii) hereby disclaims all Liability and responsibility for any representation, warranty, projection, forecast, statement, or information made, communicated, or furnished (orally or in writing) to Purchaser or its Affiliates or Representatives (including any opinion, information, projection, or advice that may have been or may be made available to Purchaser by any Representative of Seller or any of its Affiliates).

 

 

ARTICLE 4
REPRESENTATIONS AND WARRANTIES OF PURCHASER

 

Purchaser hereby makes the representations and warranties contained in this Article 4 to Seller.

 

4.1    Organization, Good Standing and Other Matters. Purchaser is duly organized, validly existing and in good standing under the laws of its jurisdiction of incorporation, organization or formation, and has all requisite power and authority to own, lease and operate its assets and properties and to carry on its business as now being conducted and as presently proposed to be conducted by it except where such failure would not materially and adversely affect Purchaser’s ability to consummate the transactions contemplated by this Agreement.

 

4.2    Authority. Purchaser has all requisite corporate power and authority to execute and deliver this Agreement, to perform its obligations hereunder and to consummate the transactions contemplated hereby. The execution, delivery and performance of this Agreement by Purchaser, and the consummation of the transactions contemplated hereby, has been duly authorized and approved by its board of directors (or equivalent governing body), and no other action on the part of Purchaser or its equityholders is necessary to authorize the execution, delivery and performance of this Agreement by Purchaser and the consummation of the transactions contemplated hereby. This Agreement has been duly executed and delivered by Purchaser and, assuming the due execution of this Agreement by the other Parties, constitutes a valid and binding obligation of Purchaser, enforceable against it in accordance with its terms, except to the extent that such enforceability may be subject to, and limited by, the Equitable Principles.

 

4.3    No Conflict: Required Filings and Consents. The execution and delivery of this Agreement and the consummation of the transactions contemplated hereby by Purchaser will not (i) violate the provisions of its Organizational Documents, (ii) violate any Law or Order to which it is subject or by which any of its properties or assets are bound in any material respect, or (iii) require it to obtain any consent or approval, or give any notice to, or make any filing with, any Governmental Authority on or prior to the Closing Date.

 

4.4    Litigation. There are no Actions pending against, or to Purchaser’s knowledge threatened against, Purchaser that would materially and adversely affect Purchaser’s ability to consummate the transactions contemplated by this Agreement.

 

 

4.5    Solvency. After giving effect to the transactions contemplated by this Agreement and the payment of the Purchase Price, Purchaser and its Subsidiaries, on a consolidated basis taken as a whole, will be Solvent immediately after the completion of the Closing. For the purposes of this Agreement, the term “Solvent”, when used with respect to any Person and its Subsidiaries, on a consolidated basis, means that, as of any date of determination, (a) the amount of the “fair saleable value” of the assets of such Person and its Subsidiaries, on a consolidated basis, will, as of such date, exceed (i) the value of all “liabilities of such Person and its Subsidiaries, on a consolidated basis, including contingent and other liabilities”, as of such date, as such quoted terms are generally determined in accordance with applicable Laws governing determinations of the insolvency of debtors, and (ii) the amount that will be required to pay the probable Liabilities of such Person and its Subsidiaries, on a consolidated basis, as of such date, on their existing debts (including contingent and other Liabilities) as such debts become absolute and mature, (b) such Person and its Subsidiaries, on a consolidated basis, will not have, as of such date, an unreasonably small amount of capital for the operation of the businesses in which they are engaged or proposed to be engaged following such date, and (c) such Person and its Subsidiaries, on a consolidated basis, will be able to pay their Liabilities, including contingent and other Liabilities, as they mature. For purposes of this definition, “not have an unreasonably small amount of capital for the operation of the businesses in which they are engaged or proposed to be engaged” and “able to pay their liabilities, including contingent and other Liabilities, as they mature” means that such Person and its Subsidiaries, on a consolidated basis, will be able to generate enough cash from operations, asset dispositions or refinancing, or a combination thereof, to meet their obligations as they become due.

 

4.6    No Additional Representations and Warranties; Independent Investigation. Notwithstanding anything contained in this Agreement to the contrary, Purchaser acknowledges and agrees that Seller is not making any representations or warranties whatsoever, express or implied, beyond those expressly given by Seller in Article 3 hereof (as modified by the Disclosure Letter), and Purchaser acknowledges and agrees that, except for the representations and warranties contained therein, the Purchased Assets are being transferred on a “where is” and, as to condition, “as is” basis. Any claims Purchaser may have for breach of representation or warranty shall be based solely on the representations and warranties of Seller set forth in Article 3 hereof (as modified by the Disclosure Letter). Purchaser acknowledges that it has conducted to its satisfaction, its own independent investigation of the Purchased Assets and, in making the determination to proceed with the transactions contemplated by this Agreement, Purchaser has also relied on the results of its own independent investigation.

 

ARTICLE 5
COVENANTS AND AGREEMENTS

 

5.1    Conduct of Business Prior to the Closing.  From the date hereof until earlier of the Closing and the termination of this Agreement in accordance with Article 8, except as otherwise provided in this Agreement or consented to in writing by Purchaser (such consent not to be unreasonably withheld, delayed or conditioned), Seller shall use commercially reasonable efforts to:

 

 

(a)    preserve and maintain any and all Permits required for the operation of the Somerset Facility or the ownership and use of the Purchased Assets in all material respects;

 

(b)    continue to take, or cause to be taken, such actions as are currently being taken or contemplated to be taken by Seller as of the date of this Agreement, in each case as may necessary or advisable under applicable Law or instruction or guidance from an applicable Governmental Authority, for the purpose of decommissioning the Somerset Facility from its current use as of the date hereof;

 

(c)    perform all of its obligations, and not otherwise breach or be in default, under the Assumed Contracts in all material respects, including the Sublease;

 

(d)    not amend in any material respect or voluntarily terminate the any Assumed Contracts, or enter into any new Contract that would be an Assumed Contract;

 

(e)    not transfer, assign, sell or otherwise dispose of any of the Purchased Assets (other than equipment and other similar assets in the ordinary course of business); and

 

(f)    not enter into any Contract or otherwise agree to do any of the foregoing.

 

5.2    Further Assurances. Each of Seller and Purchaser shall, and shall cause their controlled Affiliates to, use its commercially reasonable efforts to (i) take, or cause to be taken, all actions, including executing and delivering such further instruments, as may be necessary or appropriate to consummate the transactions contemplated by this Agreement and (ii) cause the fulfillment at the earliest practicable date of all of the conditions to their respective obligations to consummate the transactions contemplated by this Agreement. In furtherance of the foregoing, each of Seller and Purchaser shall reasonably cooperate with each other, and shall use their commercially reasonable efforts to cause their respective Representatives to cooperate with each other, to provide an orderly transition of the Purchased Assets and Assumed Liabilities from Seller to Purchaser and to minimize the disruption to the business of Seller resulting from the transactions contemplated by this Agreement. Notwithstanding anything to the contrary in this Agreement, this Agreement shall not be construed to require Seller or any of its Affiliates to (i) initiate or defend any Action related to obtaining the Regulatory Approval (as defined below) or the Required Landlord Consents, (ii) incur any additional fees or expenses in connection with the Regulatory Approval (as defined below) or the Required Landlord Consent; provided that Seller shall, to the extent reasonably necessary to obtain the Required Landlord Consents, provide a performance guaranty to the landlords thereunder on terms reasonably acceptable to Seller and such landlords.

 

5.3    Publicity. Section 4.3 of the Investment Agreement shall apply hereto, mutatis mutandis.

 

5.4    Notice of Certain Events.  

 

(a)    From the date hereof until the Closing, each party shall reasonably promptly notify the other party in writing upon Seller obtaining Knowledge or Purchaser obtaining knowledge of:

 

(i)    any fact, circumstance, event or action the existence, occurrence or taking of which (A) has had, or could reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect, or (B) has resulted in, or could reasonably be expected to result in, the failure of any of the conditions set forth in Section 6.1 to be satisfied;

 

 

(ii)    any notice or other communication from any Person alleging that the consent of such Person is or may be required in connection with the consummation of the transactions contemplated by this Agreement;

 

(iii)    any notice or other communication from any Governmental Authority in connection with the transactions contemplated by this Agreement; and

 

(iv)    any Actions commenced threatened against, relating to or involving or otherwise affecting the Purchased Assets or the Assumed Liabilities.

 

(b)    A party’s receipt of information pursuant to this Section 5.4 from a disclosing party shall not operate as a waiver or otherwise affect any representation, warranty, covenants, rights or remedies, or the conditions to the obligations of, the parties hereunder and shall not be deemed to amend or supplement the Disclosure Letter; provided, further, that failure to give prompt notice pursuant to this Section 5.4 shall not constitute a failure of a condition to the Agreement set forth in Article 6, except to the extent that the underlying fact or circumstance not so notified would, standing alone, constitute such a failure.

 

5.5    Access to Information. From the date hereof until the Closing and subject to the confidentiality agreement by and between the Parties, dated as of [***] (the “Nondisclosure Agreement”), Seller shall, during its regular business hours and without any unreasonable interference with Seller’s operation of its business in the ordinary course and for the sole purpose of integration planning and the consummation of the transactions contemplated hereby: (a) afford Purchaser and its Affiliates and their respective Representatives reasonable access to and the right to inspect the Somerset Facility and all of the assets and other documents and data related to the Purchased Assets; and (b) instruct the Representatives of Seller to cooperate with Purchaser and its Affiliates and their respective Representatives in their investigation and due diligence of the Somerset Facility and the Purchased Assets; provided, however, that any such investigation shall be conducted during normal business hours upon reasonable advance notice to Seller and under the supervision of Seller’s personnel.  Notwithstanding anything to the contrary in this Agreement, Seller shall not be required to disclose any information to Purchaser if such disclosure would, in Seller’s sole discretion: (w) cause significant competitive harm to Seller, its Affiliates and their respective businesses, if the transactions contemplated by this Agreement are not consummated; (x) jeopardize any attorney-client or other privilege; or (y) contravene any applicable Law, fiduciary duty or binding agreement entered into prior to the date of this Agreement. Prior to the Closing, without the prior written consent of Seller, which shall not be unreasonably withheld, conditioned, or delayed, Purchaser shall not contact any suppliers to, Seller. Prior to the Closing, without the prior written consent of Seller, Purchaser shall not perform invasive, destructive or subsurface investigations of the Somerset Facility or any other environmental sampling.

 

 

5.6    Confidentiality. Purchaser acknowledges and agrees that the Nondisclosure Agreement remains in full force and effect and, in addition, covenants and agrees to keep confidential, in accordance with the provisions of the Nondisclosure Agreement, information provided to Purchaser pursuant to this Agreement. If this Agreement is, for any reason, terminated prior to the Closing, the Nondisclosure Agreement and the provisions of this Section 5.6 shall nonetheless continue in full force and effect.

 

5.7    ISRA Compliance. To the extent required by ISRA prior to Closing, prior to Closing, Seller shall use commercially reasonable efforts to comply with any and all ISRA requirements triggered by (a) any past or planned closing of Seller’s operations or transfer of Seller’s ownership or operations at the Sommerset Facility or (b) the transactions contemplated by this Agreement and, to the extent reasonably requested by Purchaser, cooperate with Purchaser in connection therewith. Without limiting the foregoing, at its sole cost and expense, Seller shall be responsible for, and shall use commercially reasonable efforts to, make all notifications required by ISRA, maintain any remediation funding source required by ISRA, and promptly commence and diligently pursue to completion any Remediation required by ISRA (“ISRA Remediation”). Any ISRA Remediation need not be completed by Seller prior to Closing so long as Seller has complied with its obligations under the first sentence of this paragraph. In the event any ISRA Remediation is not completed prior to Closing, Seller shall use commercially reasonable efforts to diligently pursue the ISRA Remediation in an expeditious and workmanlike manner after the Closing, and shall enter into a site access agreement with the Purchaser for that purpose. Seller shall provide to Purchaser copies of all written communications to or from the New Jersey Department of Environmental Protection or any licensed site remediation professional retained by Seller to address ISRA requirements, within [***] of submission or receipt, as the case may be (subject to redactions in Seller’s reasonable discretion), and Purchaser shall have a reasonable opportunity to comment in advance on any notifications to the New Jersey Department of Environmental Protection or any reports prepared with respect to ISRA; provided that Seller shall control the strategy for all matters relating to ISRA under this Agreement. Notwithstanding anything to the contrary in this Agreement, in no event shall Seller or any of its Affiliates be required to (i) take (or omit to take), or commit or offer to take (or omit to take), any action in connection with any ISRA Remediation or otherwise under this Section 5.7 that would have a material impact on Seller, any of its Affiliates or its or their respective businesses, financial position or prospects or (ii) incur any expense in excess of the Purchase Price.

 

5.8    Employee Matters.

 

(a)    Each service provider of Seller who works at the Somerset Facility who is offered and accepts an offer of employment or consultancy with Purchaser on or prior to the Closing (a “Transferred Employee” or a “Transferred Consultant,” as applicable, and collectively, the “Transferred Service Providers”) shall have his or her employment or consultancy with Seller terminated as of the Closing. Seller hereby consents to the hiring of any or all Transferred Service Providers by Purchaser and waives, with respect to the employment or engagement by Purchaser of such Transferred Service Providers, any claims or rights Seller would otherwise have against Purchaser or any such Transferred Service Provider under any contract due to such Transferred Service Provider’s employment or consultancy with Purchaser. Upon termination of the employment or engagement of each Transferred Service Provider with Seller, Seller shall pay to each Transferred Service Provider, as applicable, any Liability for accrued compensation, severance, vacation, paid time off, sick leave or similar benefits with respect to such employee attributable to periods of employment or service of such service provider with Seller (inclusive of payroll taxes owing thereupon) and shall make such payment within the statutory time period therefor but in no event later than ten days after such Transferred Service Provider’s employment or engagement with Seller terminates. Seller is solely responsible for any Liabilities or obligations arising under the WARN Act and similar state laws in connection with the termination of Transferred Service Providers’ employment or consultancy with Seller. Nothing herein shall require Purchaser to hire or engage any service providers of Seller who works at the Somerset Facility, nor retain the services of any Transferred Service Provider for any period of time. Further, nothing herein shall require Purchaser to include any specific provisions or offer any specific benefits to any Transferred Service Provider.

 

 

(b)    Purchaser and Seller agree to utilize, or cause their respective Affiliates to utilize, the standard procedure set forth in Revenue Procedure 2004-53, 2004-2 C.B. 320, with respect to wage reporting for Transferred Employees.

 

5.9    Insurance. The coverage under all insurance policies or self-insurance programs, including those relating to the Purchased Assets and the Assumed Liabilities, arranged or maintained by Seller or any of its Affiliates is only for the benefit of Seller and its Affiliates, and not for the benefit of Purchaser or any of its Affiliates. As of the Closing, the Purchased Assets and the Assumed Liabilities shall cease to be insured by the insurance policies of Seller or any of its Affiliates or by any of their respective self-insurance programs. Purchaser acknowledges and agrees that it is Purchaser’s sole responsibility to arrange for its own insurance policies or self-insurance programs with respect to the Purchased Assets and the Assumed Liabilities covering all periods prior to and following the Closing and, without prejudice to any right to indemnification pursuant to this Agreement or any other Ancillary Documents, agrees not to seek, through any means, to benefit from any of the insurance policies of Seller or any of its Affiliates which may provide coverage for claims relating in any way to the Purchased Assets or the Assumed Liabilities.

 

5.10    Bulk Sale. Purchaser hereby waives compliance by Sellers and any other member of Seller with the provisions of any so called “bulk transfer laws” or similar Laws of any jurisdiction in connection with this Agreement or the transactions contemplated hereby.

 

5.11    Estoppel Certificate. Seller shall use commercially reasonable efforts to, as promptly as reasonably practicable following the date hereof, obtain a customary estoppel certificate from [***], as tenant (“Sublandlord”), with respect to the Sublease (it being understood that Seller shall not be required to incur any additional fees or expenses in connection with obtaining such estoppel certificate);

 

5.12    Transition Plan. The Parties will use commercially reasonable efforts to, as promptly as reasonably practicable following the date hereof and in any event prior to the Closing, negotiate and agree upon a plan to transition the Purchased Assets to Seller at the Closing (the “Transition Plan”), which shall include, among other matters, (a) a plan to transition the equipment, facilities and employees of the Somerset Facility to Purchaser to the extent reasonably practicable, (b) reasonable cooperation in sharing books and records, including SOPs, that are relevent to the Purchased Assets and the operation of the Somerset Facility, and (c) may include the parties entering into one or more customary transition services agreements effective following the Closing; provided that in no event will any Party be required to incur any unreimbursed expense under the Transition Plan other than to the extent otherwise expressly agreed in this Agreement.

 

 

ARTICLE 6
CONDITIONS TO CLOSING

 

6.1    Conditions Precedent to Obligations of Purchaser. The obligation of Purchaser to consummate the transactions contemplated by this Agreement is subject to the fulfillment, at or prior to the Closing, of each of the following conditions precedent (any or all of which may be waived by Purchaser in whole or in part to the extent permitted by applicable Law):

 

(a)    the representations and warranties of Seller contained in this Agreement shall be true, correct, and complete in all respects (in the case of any representation or warranty qualified by materiality or Material Adverse Effect) or in all material respects (in the case of any representation or warranty not qualified by materiality or Material Adverse Effect) on and as of the Closing Date with the same effect as though made at and as of such date (except those representations and warranties that address matters only as of a specified date, the accuracy of which shall be determined as of that specified date in all respects);

 

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

 

(c)    there shall not have been or occurred any Material Adverse Effect that is continuing;

 

(d)    there shall not be in effect any Order by a Governmental Authority of competent jurisdiction restraining, enjoining or otherwise prohibiting the consummation of the transactions contemplated hereby;

 

(e)    Seller shall have received consent, in a form reasonably satisfactory to Purchaser, from the Sublandlord (as defined in the Sublease) and the Prime Landlord (as defined in the Sublease) to the assignment of the Sublease to Purchaser (the “Required Landlord Consents”);

 

(f)    the Parties shall have reasonably agreed upon the Transition Plan;

 

(g)    the Regulatory Approval shall have been received;

 

(h)    Purchaser shall have received the items listed in Section 2.8(b); and

 

(i)    To the extent required by ISRA, and subject to the limitations in Section 5.7, Seller shall have complied in all material respects with all ISRA Remediation actions required by ISRA to be completed by Seller prior to the Closing and provided evidence reasonably satisfactory to Purchaser thereof.

 

 

6.2    Conditions Precedent to Obligations of Seller. The obligations of Seller to consummate the transactions contemplated by this Agreement are subject to the fulfillment, prior to or at the Closing, of each of the following conditions precedent (any or all of which may be waived by Seller in whole or in part to the extent permitted by applicable Law):

 

(a)    the representations and warranties of Purchaser set forth in this Agreement shall have been true, correct, and complete in all material respects as of the date hereof and shall be true, correct, and complete in all material respects as of the Closing Date as though made on and as of such dates (except, in each case, for those representations and warranties that address matters only as of a specified date, which shall have been true, correct, and complete in all respects as of such specified date);

 

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

 

(c)    there shall not be in effect any Order by a Governmental Authority of competent jurisdiction restraining, enjoining or otherwise prohibiting the consummation of the transactions contemplated hereby;

 

(d)    the Required Landlord Consents shall have been received;

 

(e)    ISRA shall not have notified Seller of any objection to the consummation of the Closing that has not subsequently been withdrawn;

 

(f)    the Regulatory Approval shall have been received; and

 

(g)    Seller shall have received the items listed in Sections 2.8(a).

 

6.3    Frustration of Closing Conditions. No Party to this Agreement may rely on the failure of any condition set forth in Sections 6.1 or 6.2, as the case may be, to be satisfied if such failure was caused by such Party’s material breach of the terms of this Agreement.

 

ARTICLE 7
SURVIVAL; INDEMNIFICATION

 

7.1    Survival of Representations, Warranties and Covenants. Subject to the limitations and other provisions of this Agreement, (i) the representations and warranties contained herein shall survive the Closing and shall remain in full force and effect until the date that is [***] from the Closing Date; provided that the representations and warranties in Sections 3.9, and 3.10 (the “Specified Representations”) shall survive for the full period of all applicable statutes of limitations (giving effect to any waiver, mitigation, or extension thereof); provided further that the representations and warranties in Sections [***] (the “Fundamental Representations”) shall survive for the full period of all applicable statutes of limitations (giving effect to any waiver, mitigation, or extension thereof) plus [***], (ii) the covenants and agreements of the parties to be performed at or prior to the Closing shall survive the Closing and shall remain in full force and effect until the date that is [***]from the Closing Date and (iii) the covenants and agreements of the parties to be performed by the parties after the Closing shall survive the Closing and remain in full force in effect in accordance with their respective terms.

 

 

7.2    Indemnification by Seller. Subject to the provisions of this Article 7, from and after the Closing, Seller will indemnify and hold Purchaser, its Affiliates and their respective Representatives, and their respective successors and permitted assigns (collectively, the “Purchaser Indemnified Parties”) harmless from and against, and pay to the applicable Purchaser Indemnified Parties the amount of, any Losses based upon, resulting from or related to:

 

(a)    any inaccuracy in or breach of any of the representations or warranties of Seller contained in this Agreement, the Disclosure Letter, the Ancillary Documents or in any certificate or instrument delivered by or on behalf of Seller pursuant to this Agreement, as of the date such representation or warranty was made or as if such representation or warranty was made on and as of the Closing Date (except for representations and warranties that expressly relate to a specified date, the inaccuracy in or breach of which will be determined with reference to such specified date);

 

(b)    any breach or non-fulfillment of any covenant, agreement or obligation to be performed by Seller pursuant to this Agreement, the Ancillary Documents or any certificate or instrument delivered by or on behalf of Seller pursuant to this Agreement; or

 

(c)    any Excluded Liability.

 

7.3    Indemnification by Purchaser. Subject to the provisions of this Article 7, from and after the Closing, Purchaser will indemnify and hold Seller, its Affiliates and their respective Representatives, and their respective successors and permitted assigns (collectively, the “Seller Indemnified Parties”) harmless from and against, and pay to the applicable Seller Indemnified Parties the amount of, any Losses based upon, resulting from or related to:

 

(a)    any inaccuracy in or breach of any of the representations or warranties of Purchaser contained in this Agreement or in any certificate or instrument delivered by or on behalf of Purchaser pursuant to this Agreement, as of the date such representation or warranty was made or as if such representation or warranty was made on and as of the Closing Date (except for representations and warranties that expressly relate to a specified date, the inaccuracy in or breach of which will be determined with reference to such specified date);

 

(b)    any breach or non-fulfillment of any covenant, agreement or obligation to be performed by Purchaser pursuant to this Agreement; or

 

(c)    any Assumed Liability.

 

7.4    Indemnification Procedures.

 

(a)    Subject to Section 7.1, any Action by a Party seeking indemnification hereunder (an “Indemnified Party”) on account of a Loss which does not result from a third-party claim (a “Direct Claim”) shall be asserted by the Indemnified Party giving the other Party (the “Indemnifying Party”) reasonably prompt written notice thereof (each, a “Claim Notice”), including a reasonably-detailed description of the facts and circumstances giving rise to such Direct Claim. The Indemnifying Party shall have [***]after its receipt of such notice to respond in writing to such Direct Claim. If the Indemnifying Party does not so respond within such [***]period, the Indemnifying Party shall be deemed to have agreed to such claim and the Indemnifying Party’s obligation to indemnify the Indemnified Party for the Losses related to or resulting therefrom as provided herein.

 

 

(b)    In the event that any Action shall be instituted or that any claim or demand shall be asserted by any third party in respect of which payment may be sought under Section 7.2 or Section 7.3 (a “Third-Party Claim”), subject to Section 7.1, the Indemnified Party shall promptly, and in no event later than [***]after receipt of notice of such Third-Party Claim, cause a reasonably-detailed Claim Notice regarding any Third-Party Claim of which it has knowledge that is covered by this Article 7, to be forwarded to the Indemnifying Party, together with any material documentation delivered to or otherwise in the possession of the Indemnified Party or its Affiliates in respect of such Third-Party Claim. In cases where Seller is the Indemnifying Party, Seller shall have the right, by giving written notice to the Indemnified Party, to assume the defense of the Indemnified Party against the Third-Party Claim so long as the Indemnifying Party reasonably selects external counsel to defend such claim (which shall be reasonably acceptable to Purchaser). Notwithstanding anything in this Section 7.4 to the contrary, the Indemnified Party (or, if the Indemnifying Party has assumed the defense of a Third-Party Claim, the Indemnifying Party) shall not, without the written consent of the other party, (A) settle or compromise any Third-Party Claim or (B) permit a default or consent to entry of any judgment, in each case, unless the claimant and such party provide to such other party an unqualified release from all Liability in respect of the Third-Party Claim.

 

7.5    Certain Limitations.

 

The aggregate amount of Losses for which an Indemnifying Party shall be liable under Section 7.2 or Section 7.3, as applicable, shall be subject to the following limitations:

 

(a)    Seller shall not be liable to the Purchaser Indemnified Parties for indemnification under Section 7.2(a) (other than with respect to Fundamental Representations) until the aggregate amount of all Losses in respect of indemnification under Section 7.2(a) exceeds $[***] (the “Basket”), in which event Seller shall be required to pay or be liable for all such Losses from the first dollar. The aggregate amount of all Losses for which Seller shall be liable pursuant to Section 7.2(a) shall not exceed $[***] (the “Cap”); provided that the Cap shall not apply to breaches of Specified Representations and neither the Basket nor the Cap shall apply to breaches of Fundamental Representations (which will be subject to the limitation set forth in Section 7.5(c) and Section 7.5(d), respectively).

 

(b)    Purchaser shall not be liable to the Seller Indemnified Parties for indemnification under Section 7.3(a) until the aggregate amount of all Losses in respect of indemnification under Section 7.3(a) exceeds the Basket, in which event Purchaser shall be required to pay or be liable for all such Losses from the first dollar. The aggregate amount of all Losses for which Purchaser shall be liable pursuant to Section 7.3(a) shall not exceed the Cap; provided that the Basket nor the Cap shall apply to breaches of Fundamental Representations.

 

 

(c)    The aggregate amount of all Losses for which Seller shall be liable to the Purchaser Indemnified Parties pursuant to pursuant to Section 7.2(a) in respect of breaches of Specified Representations shall not exceed $[***].

 

(d)    The aggregate amount of all Losses for which an Indemnifying Party shall be liable pursuant to Section 7.2(a) or Section 7.2(b) (in the case of Seller) or Section 7.3(a) or Section 7.3(b) (in the case of Purchaser), as applicable, shall not exceed the Purchase Price.

 

7.6    Exclusive Remedy.  The indemnification rights of the Parties under this Article 7, are the exclusive rights of the Parties with respect to Losses for breaches of this Agreement, provided that nothing in this Article 7 or elsewhere in this Agreement shall limit remedies the Parties may have at Law for Fraud on the part of any Party or with respect to Section 9.10. In furtherance of the foregoing, except with respect to Section 9.10, each Party hereby waives, from and after Closing, to the fullest extent permitted under Law, any and all other rights, claims and causes of action for any breach of any representation, warranty, covenant, agreement or obligation set forth herein or otherwise relating to the subject matter of this Agreement it may have against the other Party and its Affiliates and each of their respective Representatives arising under or based upon any Law, except pursuant to the indemnification provisions set forth in this Article 7. Notwithstanding the foregoing, nothing in this Agreement shall be deemed to waive, affect or otherwise modify the rights of the parties to the Investment Agreement or the other Transaction Documents (other than this Agreement) contemplated thereby.

 

7.7    Tax Treatment of Indemnification Payments. All indemnification payments made under this Agreement shall be treated by the parties as an adjustment to the Purchase Price for Tax purposes, unless otherwise required by Law.

 

ARTICLE 8
TERMINATION

 

8.1    Termination of the Agreement. This Agreement may be terminated prior to the Closing as follows:

 

(a)    by Seller or Purchaser if the Closing Date shall not have occurred on or prior to 5:00 p.m. (New York City time) on [***] (the “End Date”); provided that, if the conditions to Closing set forth in Section 6.1(f) or Section 6.2(e) (with respect to Regulatory Approval) have not been satisfied or waived on or prior to the End Date but all other conditions to Closing set forth in Article VI have been satisfied or waived (except for those conditions that by their nature are to be satisfied at the Closing), the End Date shall automatically be extended to [***] and, such date, as so extended, shall then be the “End Date” for all purposes under this Agreement; provided further that the right to terminate of this Agreement pursuant to this Section 8.1(a) shall not be available to any Party who is then in material breach of any covenant or agreement in this Agreement or whose breach of any provision of this Agreement results in or is the primary cause of the failure of the Closing Date to have occurred by such time;

 

(b)    by mutual written consent of Seller and Purchaser;

 

 

(c)    by Seller or Purchaser if there shall be in effect a final nonappealable Order of a Governmental Authority of competent jurisdiction restraining, enjoining or otherwise prohibiting the consummation of the transactions contemplated hereby; or

 

(d)    by Seller or Purchaser if the other Party shall have materially breached or materially failed to perform or comply with any of its representations, warranties, covenants or agreements set forth in this Agreement, or if any material representation or warranty of such Party shall have become untrue, in either case such that the conditions set forth in Section 6.1 or Section 6.2, as applicable, would not be satisfied and such breach is incapable of being cured or, if capable of being cured, shall not have been cured by the earlier of (i) thirty (30) days following receipt by Seller or Purchaser, as applicable of notice of such breach, or (ii) the End Date; provided, that the non-breaching Party is not in material default or other violation of its covenants, warranties, agreements or other obligations in this Agreement, or any of its representations has become inaccurate, in each case, to the extent such breach, violation or inaccuracy is a principal cause of (or has resulted in) the failure to occur or be satisfied of any conditions to the Closing set forth in Article 6.

 

8.2    Procedure Upon Termination. In the event of termination and abandonment by Purchaser or Seller, or both, pursuant to Section 8.1, written notice thereof shall forthwith be given to the other Party, and this Agreement shall terminate, and the obligations hereunder shall be abandoned, without further action by any of the Parties.

 

8.3    Effect of Termination. In the event that this Agreement is validly terminated as provided herein, then each of the Parties shall be relieved of their duties and obligations arising under this Agreement after the date of such termination and such termination shall be without Liability to Purchaser or Seller; provided, however, that the obligations of the Parties set forth in this Section 8.3 and Article 9 shall survive any such termination and shall be enforceable hereunder; provided further, however, that nothing in this Section 8.3 shall relieve Purchaser or Seller of any Liability for an intentional and knowing material breach of this Agreement occurring prior to the effective date of termination.

 

ARTICLE 9
GENERAL PROVISIONS

 

9.1    Entire Agreement; Amendment. This Agreement, including the exhibits and schedules hereto and the other documents referred to herein which form a part hereof contain the entire understanding of the Parties with respect to the subject matter contained herein and therein. This Agreement supersedes all prior and contemporaneous agreements, arrangements, contracts, discussions, negotiations, undertakings and understandings (whether written or oral) between the Parties with respect to such subject matter. This Agreement may be amended, supplemented or changed, and any provision hereof can be waived, only by a written instrument making specific reference to this Agreement executed by Seller and Purchaser.

 

9.2    No Waiver. The failure of a Party to insist upon strict adherence to any term or provision of this Agreement on any occasion shall not be considered a waiver or deprive that Party of the right thereafter to insist upon strict adherence to that term or provision or any other term or provision of this Agreement.

 

 

9.3    Severability. If any term or other provision of this Agreement is invalid, illegal, or incapable of being enforced by any Law or public policy, all other terms or provisions of this Agreement shall nevertheless remain in full force and effect so long as the economic or legal substance of the transactions contemplated hereby is not affected in any manner materially adverse to any Party. Any such term or provision held invalid, illegal, or incapable of being enforced only in part or degree will remain in full force and effect to the extent not held invalid, illegal, or incapable of being enforced. Upon such determination that any term or other provision is invalid, illegal, or incapable of being enforced, such term or provision is hereby deemed modified to give effect to the original written intent of the Parties to the greatest extent consistent with being valid and enforceable under applicable Law.

 

9.4    Expenses and Obligations. Except as otherwise expressly provided in this Agreement, all costs and expenses incurred by the Parties hereto in connection with the transactions contemplated by this Agreement shall be borne solely and entirely by the Party that has incurred such expenses.

 

9.5    Notices. All notices, consents, waivers, and other communications under this Agreement must be in writing and will be deemed to have been duly given (a) when delivered by hand (with written confirmation of receipt) or (b) when sent by email so long as no message of non-delivery is received from Purchaser or Seller recipient thereof (or to such other addresses as a Party may designate by notice to the other Parties in accordance with this Section 9.5):

 

If to Purchaser:

 

Perspective Therapeutics, Inc.

350 Hills Street, Suite 106

Richland WA 99354

Attention: Thijs Spoor, President & CEO

Email: [***]

 

with a copy to (which will not constitute notice):

 

Hogan Lovells US LLP

609 Main St Suite 4200

Houston, TX 77002

Attention: Andrew Strong

Email: andrew.strong@hoganlovells.com

 

If to Seller:

 

Progenics Pharmaceuticals, Inc.

c/o Lantheus Medical Imaging, Inc.

201 Burlington Road

Bedford, MA 01730

Attention: Daniel Niedzwiecki, Chief Administrative Officer and General Counsel

Email: [***]

 

 

with a copy to (which will not constitute notice):

 

Cooley LLP

55 Hudson Yards

New York, New York 10001

Attn: Bill Roegge

Email: broegge@cooley.com

 

Any of the above addresses may be changed at any time by notice given as provided above.

 

9.6    Counterparts. This Agreement may be executed in two (2) or more counterparts (including by electronic transmission), each of which shall constitute an original, and all of which taken together shall constitute one and the same instrument. A signed copy of this Agreement delivered by e-mail, DocuSign, or other means of electronic transmission shall be deemed to have the same legal effect as delivery of an original signed copy of this Agreement.

 

9.7    Governing Law; Submission to Jurisdiction; Consent to Service of Process.

 

(a)    This Agreement, and all claims or causes of action (whether in contract or tort) that may be based upon, arise out of or relate to this Agreement or the negotiation, execution or performance of this Agreement (including any claim or cause of action based upon, arising out of or related to any representation or warranty made in or in connection with this Agreement or as an inducement to enter this Agreement) shall be governed by and construed in accordance with the internal laws of the State of Delaware without giving effect to any choice of law principles that would require or permit the application of the laws of another jurisdiction.

 

(b)    The Parties hereby irrevocably submit to the exclusive jurisdiction of Court of Chancery of the State of Delaware (or if the Court of Chancery declines jurisdiction, any other federal or state court sitting in the State of Delaware) over all claims or causes of action (whether in contract or tort) that may be based upon, arise out of or relate to this Agreement, or the negotiation, execution or performance of this Agreement (including any claim or cause of action based upon, arising out of or related to any representation or warranty made in or in connection with this Agreement or as an inducement to enter into this Agreement) and each Party hereby irrevocably agrees that all claims in respect of any such Action related thereto may be heard and determined in such courts. The Parties hereby irrevocably waive, to the fullest extent permitted by applicable Law, any objection that they may now or hereafter have to the laying of venue of any such dispute brought in such court or any defense of inconvenient forum for the maintenance of such dispute. Each of the Parties agrees that a judgment in any such dispute may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by Law.

 

 

(c)    Each of the Parties hereby consents to process being served by any Party to this Agreement in any Action by the delivery of a copy thereof in accordance with the provisions of Section 9.5.

 

9.8    Waiver of Jury Trial. EACH OF THE PARTIES HEREBY EXPRESSLY WAIVES THE RIGHT TO A TRIAL BY JURY IN ANY CLAIM OR CAUSE OF ACTION (WHETHER IN CONTRACT OR TORT) BROUGHT BY OR AGAINST IT THAT MAY BE BASED UPON, ARISE OUT OF OR RELATE TO THIS AGREEMENT, OR THE NEGOTIATION, EXECUTION OR PERFORMANCE OF THIS AGREEMENT (INCLUDING ANY CLAIM OR CAUSE OF ACTION BASED UPON, ARISING OUT OF OR RELATED TO ANY REPRESENTATION OR WARRANTY MADE IN OR IN CONNECTION WITH THIS AGREEMENT OR AS AN INDUCEMENT TO ENTER INTO THIS AGREEMENT).

 

9.9    Assignment. Except as otherwise provided herein, the provisions hereof shall inure to the benefit of, and be binding upon, the successors by operation of law and permitted assigns of the Parties. No assignment of this Agreement may be made by any Party at any time, whether or not by operation of law, without the prior written consent of the other Party; provided that either Party may freely assign its rights under this Agreement to any successor or acquirer of such Party in connection with a change of control; provided, further, that no such assignment shall affect or relieve such Party of its obligations and other Liabilities under this Agreement.

 

9.10    Specific Enforcement. The Parties hereto agree that, if any of the provisions of this Agreement or any other document contemplated by this Agreement were not performed in accordance with its specific terms or were otherwise breached, irreparable damage would occur, no adequate remedy at law would exist and damages would be difficult to determine, and, therefore, the Parties shall be entitled to specific performance of the terms hereof and thereof, in addition to any other remedy at law or in equity.

 

9.11    Third-Party Beneficiaries. Nothing in this Agreement, express or implied, is intended to confer upon any Person other than the Parties and the Indemnified Parties any rights or remedies of any nature whatsoever under or by reason of this Agreement

 

9.12    Guarantee.

 

Until such time as this Agreement is terminated in accordance with Article 8, Guarantor hereby irrevocably and unconditionally guarantees to Purchaser the due and punctual payment of all monetary indemnification obligations of Seller pursuant to Article 7. In case of the failure of Seller to punctually to pay any such monetary obligation, Guarantor hereby agrees to assume and/or cause any such payment to be made punctually when and as the same shall become due and payable, and as if such payment were made by Seller, as applicable. Guarantor hereby waives diligence, presentment, demand of payment, filing of claims with a court in the event of merger, insolvency or bankruptcy of Seller, any right to require a proceeding first against Seller, protest or notice with respect to any obligations guaranteed pursuant to this Section 9.12, and covenants that the obligations under this Section 9.12 will not be discharged except by complying with any obligations guaranteed pursuant to the Section 9.12; provided, however, notwithstanding anything to the contrary in this Section 9.12, the Purchaser agrees that Guarantor may assert, as a defense to, or discharge of, the payment or performance of any of its obligations under this Section 9.12, any defense or discharge that is or becomes available to Seller pursuant to the terms and conditions of this Agreement.

 

 

9.13    No Recourse Against Nonparty Affiliates. Claims, causes of action or Liabilities (whether in contract or in tort, in law or in equity, or granted by statute) that may be based upon, in respect of, arise under, out or by reason of, be connected with, or relate in any manner to this Agreement or any other Ancillary Document, or the negotiation, execution, or performance of this Agreement or any other Ancillary Document (including any representation or warranty made in, in connection with, or as an inducement to, this Agreement or any other Ancillary Document), may be made only against (and are those solely of) the entities that are expressly identified as parties in the preamble to this Agreement or in the applicable Ancillary Document (“Contracting Parties”), and then only with respect to the specific obligations set forth herein (with respect to the parties identified in the preamble to this Agreement) or therein (with respect to the parties to such Ancillary Document). No Person who is not a Contracting Party, including any director, manager, officer, employee, incorporator, member, limited or general partner, unitholder, stockholder, affiliate, agent, attorney, or Representative of, and any financial advisor or lender to, any Contracting Party (“Nonparty Affiliates”), shall have any Liability (whether in contract or in tort, in law or in equity, or granted by statute) for any claims, causes of action or Liabilities arising under, out of, in connection with, or related in any manner to this Agreement or such other Ancillary Document, as applicable, or based on, in respect of, or by reason of this Agreement or such other Ancillary Document, as applicable, or its negotiation, execution, performance, or breach; and, to the maximum extent permitted by applicable Law, each Contracting Party hereby waives and releases all such claims, causes of action and Liabilities against any such Nonparty Affiliates. Without limiting the foregoing, to the maximum extent permitted by applicable Law, (a) each Contracting Party hereby waives and releases any and all rights, claims, demands or causes of action that may otherwise be available in law or in equity, or granted by statute, to avoid or disregard the entity form of a Contracting Party or otherwise impose Liability of a Contracting Party on any Nonparty Affiliate, whether granted by statute or based on theories of equity, agency, control, instrumentality, alter ego, domination, sham, single business enterprise, piercing the veil, unfairness, undercapitalization, or otherwise and (b) each Contracting Party disclaims any reliance upon any Nonparty Affiliates with respect to the performance of this Agreement or any other Ancillary Document or any representation or warranty made in, in connection with, or as an inducement to this Agreement or any other Ancillary Document.

 

9.14    Headings; Construction. The headings and captions contained in this Agreement are provided for convenience only and will not affect its construction or interpretation. The meaning assigned to each term defined herein shall be equally applicable to both the singular and the plural forms of such term, and words denoting any gender shall include all genders. The phrase “to the extent” shall mean the degree to which a subject or other item extends and shall not simply mean “if.” Where a word or phrase is defined herein, each of its other grammatical forms shall have a corresponding meaning. Whenever the words “include”, “includes” or “including” are used in this Agreement, they shall be deemed to be followed by the words “without limitation.” The word “or” shall not be exclusive. The words “hereof”, “herein” and “herewith” and words of similar import shall, unless expressly otherwise stated, be construed to refer to this Agreement as a whole and not to any particular provision of this Agreement, and article, section, paragraph, exhibit, appendix and schedule references are to the articles, sections, paragraphs, exhibits, appendices and schedules of this Agreement unless expressly otherwise specified. The Parties have participated jointly in the negotiation and drafting of this Agreement. In the event an ambiguity or a question of intent or interpretation arises, this Agreement shall be construed as if drafted jointly by the Parties, and no presumption or burden of proof shall arise favoring or disfavoring any Party by virtue of the authorship of any provisions of this Agreement. A reference to any legislation or to any provision of any legislation shall include any amendment thereto, and any modification or re-enactment thereof, any legislative provision substituted therefor and all regulations and statutory instruments issued thereunder or pursuant thereto. All references to “dollars” or “$” in this Agreement refer to United States dollars, which is the currency used for all purposes in this Agreement. When calculating the period of time before which, within which or following which, any act is to be done or step taken pursuant to this Agreement, the date that is the reference date in calculating such period shall be excluded. If the last day of such period is a non-Business Day, the period in question shall end on the next succeeding Business Day.

 

[THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK]

 

  

IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed as of the date first written above.

 

	PERSPECTIVE THERAPEUTICS, INC.
	By:	/s/ Name: Johan (Thijs) Spoor
		Name: Johan (Thijs) Spoor
		Title: Chief Executive Officer

 

 

[Signature Page to Asset Purchase Agreement]

 

 

 

IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed as of the date first written above.

 

	PROGENICS PHARMACEUTICALS, INC.
	By:	/s/ Mary Anne Heino
		Name: Mary Anne Heino Title: Chief Executive Officer
	LANTHEUS MEDICAL IMAGING, INC.
	By:	/s/ Mary Anne Hein
		Name: Mary Anne Heino Title: Chief Executive Officer

 

 

Exhibit 10.3

 

 

Certain information has been excluded from this exhibit (indicated by “[***]”) because such information is both (i) not material and (ii) the type that the company treats as private or confidential.

 

 

OPTION AGREEMENT

 

This Option Agreement (this “Agreement”) is dated as of January 8, 2024 (the “Effective Date”) by and between Lantheus Alpha Therapy, LLC, a Delaware limited liability company (“Lantheus”), and Perspective Therapeutics, Inc., a Delaware corporation (“Perspective”). Lantheus and Perspective may be referred to herein as a “Party” or, collectively, as “Parties”.

 

RECITALS

 

Whereas, Perspective is a precision oncology company focused on the advancement of cancer treatments using radiation, radiopharmaceuticals and imaging technologies;

 

Whereas, Perspective and its Affiliates have a proprietary program comprising a peptide-based targeted alpha-particle radiotherapy for treatment of tumors expressing the somatostatin receptors, primarily SSTR2 (“VMT-α-NET”), and Perspective and/or its Affiliates have other preclinical development programs that utilize Perspective’s proprietary chelator and linker platform technology (the “Perspective Platform Technology”) for the discovery and development of products;

 

Whereas, Lantheus desires to obtain (1) an exclusive option from Perspective to negotiate for an exclusive license under the rights of Perspective and its Affiliates to VMT-α-NET, to develop, manufacture, commercialize and otherwise exploit the VMT-α-NET Product, (2) on a Preclinical Development Program-by-Preclinical Development Program basis, an exclusive option to co-fund the IND-enabling development activities of each Lead Candidate in the Program Option Field, and after the completion of such activities, a further exclusive option from Perspective to negotiate for an exclusive license under the rights of Perspective and its Affiliates to develop, manufacture, commercialize and otherwise exploit the Lead Candidate in the Program Option Field (with each capitalized term as defined below) and (3) certain rights with respect to an Acquisition Proposal or Acquisition Transaction (each, as defined below) of Perspective, in each case, as set forth more specifically herein;

 

Whereas, Perspective is willing to grant such options and rights pursuant to the terms set forth herein;

 

Whereas, the Parties (or their respective Affiliates) are entering into the Investment Agreement (the “Investment Agreement”) and the Asset Purchase Agreement (the Investment Agreement and the Asset Purchase Agreement are referred to collectively as the “Other Transaction Agreements”) concurrently herewith; and

 

Whereas, the entry into this Agreement is a condition to Lantheus’ willingness to enter into the Other Transaction Agreements, and the grant of the options and rights hereunder to Lantheus are partial consideration for Lantheus’ obligations and commitments under the Other Transaction Agreements.

 

Now, Therefore, in consideration of the various promises and undertakings set forth herein and in the Other Transaction Agreements, the sufficiency of which is hereby acknowledged, the Parties agree as follows:

 

ARTICLE 1

Defined terms

 

In addition to the terms defined elsewhere in this Agreement, the following terms have the meanings indicated below:

 

 

1.1	“Affiliate” has the meaning provided in the Investment Agreement.

 

1.2	“Asset Purchase Agreement” means that certain Asset Purchase Agreement, dated as of the date hereof, by and between Progenics Pharmaceuticals, Inc., a Delaware corporation and Affiliate of Lantheus, and Perspective, as amended, amended and restated or otherwise modified from time to time.

 

1.3	“Asset Sale Closing” means the “Closing” as defined in the Asset Purchase Agreement.

 

1.4	“Business Day” means any day except Saturday, Sunday and any day that is a legal holiday or a day on which banking institutions in the state of New York generally are authorized or required by law or other government actions to close.

 

1.5	“Change of Control Rights Period” means the period commencing on the Effective Date and ending on the twelve (12) month anniversary of the Effective Date.

 

1.6

“Commercially Reasonable Efforts” means, with respect to the activities of Perspective with respect to the research, development, manufacturing and commercialization of the VMT-α-NET Product, such efforts as [***]. Commercially Reasonable Efforts shall be determined on a country-by-country, indication-by-indication, and product-by-product basis, and it is anticipated that the level of effort will change over time, reflecting changes in the stage of development of the VMT-α-NET Product.

 

1.7

“Control” means, with respect to products, intellectual property, regulatory documentation, data or information, that Perspective or any of its Affiliates (a) owns or has a license, sublicense or other right to such products, intellectual property, regulatory documentation, data or information and (b) has the ability to provide, grant a license or sublicense to, or assign its right, title and interest in and to, such products, intellectual property, regulatory documentation, data or information as provided for in this Agreement or any subsequent license agreement as expressly contemplated herein with respect to the VMT Option or Program Options, without violating the terms of any other agreement with any third party from whom Perspective or its Affiliate acquired or licensed such, products, intellectual property, regulatory documentation, data or information. Notwithstanding anything in this Agreement to the contrary, if Perspective undergoes an Acquisition Transaction, Perspective shall not be deemed to Control any products, intellectual property, regulatory documentation, data or information that are owned or controlled by any acquiring third party, or such acquiring third party’s Affiliates (other than Affiliates of Perspective prior to such Acquisition Transaction), either prior to or following such transaction, and all such products, intellectual property, regulatory documentation, data and information are expressly excluded from the options granted herein and any license agreement to be entered into arising from the exercise of such options; provided that the foregoing shall not apply to any products, intellectual property, regulatory documentation, data or information which is (i) used by Perspective or any of its Affiliates, before or after the effective date of the Acquisition Transaction, in the research, development, manufacture or commercialization of the VMT-α-NET Product (in the case of the VMT Option) or the Lead Candidate in connection with any Preclinical Development Program (in the case of the Program Options); (ii) Controlled by Perspective or its Affiliates prior to the effective date of the Acquisition Transaction (including any modification, improvement or derivation thereof); or (iii) without limitation to the foregoing, owned or controlled by such acquiring third party or its Affiliates as a result of a license or other grant of rights by Perspective or any of its Affiliates existing prior to the effective date of the Acquisition Transaction.

 

1.8

“Development Plan” means the detailed written plan for any research, development, manufacturing and commercialization activities related to the VMT-α-NET Product during the Option Election Period and any Option Negotiation Period with respect to the VMT Option, which plan shall (a) identify the research, development, manufacturing and commercialization objectives, the estimated timelines to achieve such objectives and the activities to be conducted in support of such objectives, and (b) contain a detailed budget identifying the costs and expenses associated with such research, development, manufacturing and commercialization activities (the “Development Budget”).

 

 

1.9	“Exploit” or “Exploitation” means to research, develop, use, have used, sell, have sold, offer for sale, make, have made, distribute, import or otherwise exploit or have exploited.

 

1.10	“FDA” means the United States Food and Drug Administration and any successor entity thereto.

 

1.11	“Holdback Amount” means [***] U.S. Dollars ($[***]) in cash.

 

1.12	“Holdback Termination Event” means the valid termination, if any, of the Asset Purchase Agreement in accordance with its terms prior to the Asset Sale Closing.

 

1.13

“IND” means an investigational new drug application, clinical trial application, clinical trial exemption or similar or equivalent application or submission for approval to conduct human clinical investigation with the FDA (or applicable regulatory authority outside of the U.S.) in conformance with the requirements of the FDA (or such other regulatory authority).

 

1.14

“Lead Candidate” means, with respect to a given Preclinical Development Program, collectively, (a) the development candidate selected by Perspective as the “therapeutic lead candidate” in the course of performance of pre-clinical development activities in accordance with the relevant preclinical development plan and related budget and (b) up to [***].

 

1.15

“Option Data Package” means, with respect to the VMT-α-NET Product or the Lead Candidate, as applicable, an information package that includes the following: (a) all data (including, for clarity, non-clinical data, clinical data and chemistry, manufacturing and controls data) and analyses thereof generated by or on behalf of Perspective or its Affiliates with respect to such products (with respect to the VMT-α-NET Product, only such data and analyses pertaining to the Phase I/IIa Interim Study Results, and with respect to the Lead Candidate, the results of development activities conducted during the Pre-IND Development Period); (b) summaries of such data and analyses prepared in the ordinary course, including with respect to safety, efficacy and dosing requirements of such products; (c) a schedule identifying all third party intellectual property rights then-known to Perspective or any of its Affiliates that Perspective believes may be required to develop, manufacture or commercialize such products; (d) any written notices received by Perspective or its Affiliates from a third party alleging that Exploitation of such products may infringe or misappropriate the intellectual property rights of such third party; (e) copies of any then-existing agreements between Perspective or any of its Affiliates and any third party for the in-license or acquisition of any intellectual property rights for use in the Exploitation of such products; (f) any then-existing protocols and designs (including statistical analysis plans) for existing and anticipated clinical studies with respect to such products; (g) a summary of existing and then-anticipated development activities for such products; (h) any regulatory documentation Controlled by Perspective or any of its Affiliates with respect to such products; (i) a schedule of all then-existing patents and patent applications Controlled by Perspective or any of its Affiliates that claim or cover such products, any component thereof or the Exploitation of any of the foregoing; and (j) a list of third party contract manufacturers used with respect to such products and copies of any then-existing agreements with such third parties with respect to such products, in each case ((a)-(j)), anywhere in the world.

 

1.16	“Perspective Program Technology” means all intellectual property rights, including patents and/or patent applications and know-how, Controlled by Perspective or any of its Affiliates, that are necessary or reasonably useful for the Exploitation of the Lead Candidates in the Program Option Field.

 

1.17	“Phase I/IIa Study” means the clinical trial of the VMT-α-NET Product, with the protocol titled “Phase I/IIa First-in-Human Study of [212Pb]VMT-α-NET Targeted Alpha-Particle Therapy for Advanced SSTR2 Positive Neuroendocrine Tumors” (NCT05636618).

 

 

1.18	“Phase I/IIa Study Database Lock Date” means the date upon which the clinical trial database for the Phase I/IIa Study is locked to further modifications (including additions, deletions or alterations of data), other than, to the extent applicable, any long-term survival data.

 

1.19

“Phase I/IIa Interim Study Results” means the earlier of (a) the written final clinical study report generated by or on behalf of Perspective in the conduct of the Phase I/IIa Study or (b) a copy of the first submission to the FDA (i.e., briefing package that includes safety and efficacy data) for the recommended next phase of clinical development following the Phase I/IIa Study; provided that Phase I/IIa Interim Study Results includes efficacy data from the first efficacy assessment/visit performed after the last subject in the highest dose cohort has completed a scheduled course of VMT-α-NET in the dose escalation phase of the Phase I/IIa Study.

 

1.20	“Preclinical Development Program” means any internal program of research and/or preclinical development being conducted by Perspective or its Affiliates developed from the Perspective Platform Technology.

 

1.21	“Program Option Biomarkers” means: (a) prostate-specific membrane antigen (“PSMA”) and (b) gastrin releasing peptide receptor (“GRPR”).

 

1.22	“Program Option Field” means the diagnosis, prevention or treatment of any disease in which the relevant compound or product is targeted at or directed to, a Program Option Biomarker.

 

1.23	“Tail Period” means the Option Tail Period or the Program Option Tail Period.

 

1.24

“Upstream In-License” means any agreement with a third party pursuant to which Perspective or any of its Affiliates have in-licensed material intellectual rights necessary or reasonably useful for the Exploitation of the Products (as defined in Exhibits B and C), including any such agreement requiring future milestone, royalty or other payments with respect to such products.

 

1.25	“VMT-α-NET Diligence Package” means the documents and materials furnished to Lantheus or its Affiliates in the electronic data room in connection with its or their diligence prior to the Effective Date with respect to VMT-α-NET.

 

1.26	“VMT-α-NET Product” means the product known, as of the Effective Date, as PSC-PEG2-TOC.

 

ARTICLE 2

Consideration

 

2.1

Upfront Payment. Subject to Section 2.2, as partial consideration for the rights granted to Lantheus hereunder, Lantheus will pay to Perspective a one (1)-time payment in the amount of Twenty Eight Million U.S. Dollars (the “Upfront Payment”) within five (5) Business Days of the Effective Date, subject to prior receipt of wire transfer instructions from Perspective.

 

2.2

Holdback. Lantheus will be permitted to hold back from the Upfront Payment and retain an amount in cash equal to the Holdback Amount. In the event that the Holdback Termination Event occurs, then Lantheus will pay to Perspective a one (1)-time payment in cash in U.S. Dollars equal to the Holdback Amount within five (5) Business Days of the Holdback Termination Event, subject to prior receipt of wire transfer instructions from Perspective. If the Asset Sale Closing occurs, then Lantheus will be entitled to permanently retain the Holdback Amount and Perspective agrees that it will have no further claim whatsoever to any portion of the Holdback Amount.

 

 

ARTICLE 3

Option Grants

 

3.1

Option Grant to Lantheus. In partial consideration for the Parties entering into the Other Transaction Agreements and consummating the transactions provided therein, including the payment of the purchase prices thereunder and the Upfront Payment, Perspective hereby grants to Lantheus and its Affiliates, during the Option Election Period, an exclusive option to negotiate an exclusive, worldwide, royalty- and milestone-bearing right and license, under any intellectual property rights, including patents and/or patent applications and know-how, Controlled by Perspective or any of its Affiliates, that are necessary or reasonably useful for the Exploitation of the VMT-α-NET Product, to Exploit the VMT-α-NET Product (the “VMT Option”).

 

3.1.1

Development Plan. Within [***] from the Effective Date, Perspective shall prepare reasonably and in good faith, and submit to, Lantheus the initial Development Plan for the VMT-α-NET Product. Lantheus shall have [***] from receipt of the initial Development Plan to provide comments to Perspective on the scope of the Development Plan. Within [***] from receipt of comments from Lantheus, Perspective shall reasonably consider and, as appropriate and in its sole discretion, incorporate the comments from Lantheus into the Development Plan and provide to Lantheus the final Development Plan. Perspective shall use Commercially Reasonable Efforts to complete all activities set forth in the Development Plan, in accordance therewith. Perspective shall promptly inform Lantheus of any planned or unplanned material deviation from the Development Plan and, if requested by Lantheus, the Parties shall meet to review the reason for the deviation and its impact on the estimated timelines.

 

3.1.2

Exercise of VMT Option. Lantheus and/or its Affiliates may exercise the VMT Option by providing written notice to Perspective of its VMT Option exercise (the “Option Exercise Notice”) at any time during the period commencing on the Effective Date and (subject to extension under Section 3.1.4 or the last sentence of this Section 3.1.2) ending at 8:00 p.m. Eastern Time on the [***] after the Option Data Package Delivery Date (the “Option Election Period”). In the event that Lantheus or its Affiliate does not provide its written Option Exercise Notice within the Option Election Period to Perspective, the VMT Option shall expire.

 

3.1.3

Updates and Meetings. During the Option Election Period and any Option Negotiation Period, within [***], Perspective shall (a) deliver to Lantheus a written report summarizing Perspective’s progress with respect to the Development Plan and Development Budget, which report shall include all material research, development, manufacturing and commercialization activities conducted with respect to the VMT-α-NET Product during such calendar quarter, as well as a summary of interim data or results from the Phase I/IIa Study; provided that if at any time during the Option Election Period and any Option Negotiation Period, Perspective becomes aware of any new information related to any VMT-α-NET Product that is [***], Perspective shall [***] provide such information to Lantheus, but in any event in no more than [***] after Perspective becomes aware of such information; and (b) [***]notify Lantheus of any meeting with the FDA related to the VMT-α-NET Product and, to the extent allowed by applicable law and unless otherwise not possible based on the requested timing from the FDA, allow [***]of Lantheus to participate in such meeting as observers only (without the right to speak or otherwise participate in such meeting). During the Option Election Period and any Option Negotiation Period, at Lantheus’ reasonable written request, Perspective shall, within [***], (i) make available members of its executive leadership team and appropriate other employees to meet with Lantheus to discuss the contents of any such report and any activities with respect to the VMT-α-NET Product; or (ii) deliver to Lantheus any additional information reasonably requested by Lantheus with respect to the VMT-α-NET Product; provided that such information is Controlled by Perspective or any of its Affiliates, including any data generated in any such research, development, manufacturing or commercialization activities.

 

 

3.1.4

Delivery of Option Data Package. Without limiting Perspective’ obligations set forth in Section 3.1.3, within [***]after delivery to Lantheus of the Phase I/IIa Interim Study Results, which Perspective shall so deliver to Lantheus within [***] after the Phase I/IIa Study Database Lock Date, Perspective shall grant Lantheus access to an electronic data room containing the information then available comprising the Option Data Package (the date that Lantheus receives such access, the “Option Data Package Delivery Date”). If the Option Data Package is missing material items that should have been included based upon scope of deliverables to be provided by Perspective under the Development Plan, then, after Lantheus’ request (which shall be made within [***]after Option Data Package Delivery Date), Perspective shall add such items to the electronic data room as soon as practicable and the Option Election Period shall automatically be extended by [***]. Following the Option Data Package Delivery Date, Perspective shall promptly update the Option Data Package during the remainder of the Option Election Period, and any Option Negotiation Period, to incorporate any material new information that would have been required to be included in the Option Data Package if such new information had existed as of the Option Data Package Delivery Date, which updates shall be made as promptly as practicable and in any event within [***]after generation or receipt of any such new information by Perspective or any of its Affiliates.

 

3.1.5

Option Negotiation Period.

 

(a)

For a period of [***]from the date of delivery of the Option Exercise Notice or such longer period as the Parties may mutually agree in writing (each, an “Option Negotiation Period”), the Parties shall negotiate reasonably and in good faith the terms and conditions of an agreement (the “Definitive License Agreement”) for Lantheus to obtain an exclusive, worldwide, royalty- and milestone-bearing right and license to Exploit the VMT-α-NET Product, which Definitive License Agreement shall be consistent with the terms and conditions set forth in Exhibit A (the “License Key Terms”) or as the Parties mutually agree. If the Parties are unable to enter into the Definitive License Agreement by the end of the Option Negotiation Period, then, subject to subsection (b) below, Perspective may enter into an agreement with any third party for the Exploitation of the VMT-α-NET Product.

 

(b)

For a period of twelve (12) months from the expiration of the Option Negotiation Period (the “Option Tail Period”), if Perspective receives a bona fide written offer from a third party pursuant to which Perspective would grant such third party the right to acquire, or a license or other rights to, the VMT-α-NET Product, Perspective shall promptly provide Lantheus in writing [***]. If Lantheus notifies Perspective in writing within [***] after receipt of all such information from Perspective of its intent to match the terms of the third party offer (the “Option Match Notice”), then the Parties shall negotiate exclusively and reasonably and in good faith for a period of up to [***] (or such longer period as agreed by the Parties in writing) the terms of such acquisition, license or other rights for Lantheus with respect to the VMT-α-NET Product, on the same terms as offered by the third party. If Lantheus does not deliver Option Match Notice within such [***], or if the Parties subsequently fail to execute a definitive agreement within such [***] (or any mutually agreed extension thereof), then Perspective shall have the right to enter into any agreement with a third party for the Exploitation of the VMT-α-NET Product, without any further obligations to Lantheus with respect thereto; provided that, during the Option Tail Period, Perspective would not have the right to enter into any agreement with a third party on terms that are [***].

 

(c)

For clarity, and without limiting Lantheus’ rights under Article 4, the obligations set forth in this Section 3.1.5 shall survive the consummation of an Acquisition Transaction involving a Third Party.

 

 

3.2

Program Option Grants to Lantheus. In partial consideration for the Parties entering into the Other Transaction Agreements and consummating the transactions provided therein, including the payment of the purchase prices thereunder and the Upfront Payment, Perspective hereby grants to Lantheus and its Affiliates, on a Preclinical Development Program-by-Preclinical Development Program basis, an exclusive option to co-fund and co-develop (and co-own intellectual property generated through such co-funded development) with Perspective and its Affiliates the Lead Candidate in each Preclinical Development Program in the Program Option Field through the Program Option Data Package Delivery Date (the “Program Preclinical Co-Funding Option”), and thereafter, a further exclusive option from Perspective to negotiate for an exclusive, worldwide, royalty- and milestone-bearing right and license under the Perspective Program Technology to Exploit of the Lead Candidate in the Program Option Field (as further described in the Program License Key Terms) (the “Program License Option”; together with the Program Preclinical Co-Funding Option, the “Program Options”).

 

3.2.1

Notification of Lead Candidate; Exercise of Program Preclinical Co-Funding Option. On a [***] basis (unless otherwise agreed), representatives from Perspective and Lantheus shall meet to discuss and consider potential Preclinical Development Programs in the Program Option Field. Commencing on the Effective Date and ending at [***] (the “Program Preclinical Co-Funding Option Election Period”), on a Preclinical Development Program-by-Preclinical Development Program basis, Perspective shall notify Lantheus in writing within [***] after the designation of a Lead Candidate for such Preclinical Development Program and shall include in its written notification to Lantheus the following: (i) a high-level development plan for the Lead Candidate in the Program Option Field, which plan shall include (A) the identify of up [***] and (B) a description of all material IND-enabling development activities and the then-current projected budget for the conduct of such activities (the “Program Preclinical Development Plan”); and (ii) a summary of all material results, data or other information (including analyses thereof) generated by or on behalf of Perspective or its Affiliates with respect to the Lead Candidate (collectively, the “Program Preclinical Co-Funding Materials”). Lantheus and/or its Affiliates may exercise a given Program Preclinical Co-Funding Option by providing written notice to Perspective of its Program Preclinical Co-Funding Option exercise (the “Program Preclinical Co-Funding Option Exercise Notice”) within [***] after receipt of the Program Preclinical Co-Funding Materials. Upon Lantheus’ exercise of a given Program Preclinical Co-Funding Option, Lantheus shall be responsible for [***] of the costs incurred by Perspective or its Affiliates in connection with the performance of the applicable Program Preclinical Development Plan, provided that such costs do not exceed the amounts set forth in the related budget for such Preclinical Development Program (for clarity, in the form that such plan and budget are provided to Lantheus as part of the Program Preclinical Co-Funding Materials, or as such plan and/or budget are subsequently amended with Lantheus’ prior written consent). Lantheus shall pay any such undisputed amounts within [***] after receipt of an invoice from Perspective (which invoice shall accompany the reports described in Section 3.2.2). Perspective shall promptly inform Lantheus of any planned or unplanned material deviation from the Program Preclinical Development Plan (it being understood that Lantheus’ prior written consent (which may be provided by email) shall be required for any material deviation from the Program Preclinical Development Plan). If requested by Lantheus, the Parties shall meet to review the reason for the proposed deviation from the Program Preclinical Development Plan and its impact on the estimated timelines therein. Additionally, at the time of Lantheus’ delivery of the Program Preclinical Co-Funding Option Exercise Notice, the Parties shall enter into a separate short-form agreement governing Lantheus’ co-ownership rights to the intellectual property generated through such co-funded development and such other terms with respect to the such co-development that the Parties may mutually agree in writing.

 

 

3.2.2

Updates and Meetings. With respect to each Preclinical Development Program as to which Lantheus exercises its Program Preclinical Co-Funding Option, commencing upon the date of such option exercise until the Program Option Data Package Delivery Date for the Lead Candidate (the “Pre-IND Development Period”), within [***] after the end of each calendar quarter during such period, Perspective shall deliver to Lantheus a written report (a) summarizing Perspective’s progress with respect to the Program Preclinical Development Plan which report shall include all material preclinical development activities conducted with respect to the Lead Candidate during such calendar quarter, as well as a summary of any interim data generated in the performance of such activities and the results thereof, and including a high-level description of the preclinical development activities anticipated to be conducted in the subsequent calendar quarter; provided that if at any time during such period, Perspective becomes aware of any new information related to the Lead Candidate or such Preclinical Development Program that is reasonably likely to materially impact the development, manufacturing or commercialization of such Lead Candidate, Perspective shall promptly provide such information to Lantheus, but in any event in no more than [***] after Perspective becomes aware of such information and (b) detailing the development costs incurred to date against the preclinical Development Budget set forth in the Program Preclinical Development Plan. Additionally, during the Pre-IND Development Period, Perspective shall promptly notify Lantheus of any meeting with the FDA related to the Lead Candidate or such Preclinical Development Program and, to the extent allowed by applicable law and unless otherwise not possible based on the requested timing from the FDA, allow at least [***] of Lantheus to participate in such meeting as observers only (without the right to speak or otherwise participate in such meeting). During the Pre-IND Development Period, at Lantheus’ reasonable written request, Perspective shall, within [***], (i) make available members of its executive leadership team and appropriate other employees to meet with Lantheus to discuss the contents of any such report or activities described therein; or (ii) deliver to Lantheus any additional information reasonably requested by Lantheus with respect to the Lead Candidate or such Preclinical Development Program; provided that such information is Controlled by Perspective or any of its Affiliates, including any data generated in any such research or development activities.

 

3.2.3

Delivery of Program License Option Data Package. With respect to each Preclinical Development Program for which Lantheus exercises its Program Preclinical Co-Funding Option pursuant to Section 3.2.1, without limiting Perspective’s obligations set forth in Section 3.2.2, within [***] after the delivery to Lantheus of a summary report on the development activities under the Program Preclinical Development Plan (the “Program Preclinical Development Plan Report”), Perspective shall grant Lantheus access to an electronic data room containing the information then available comprising the Option Data Package (the date that Lantheus receives such access, the “Program Option Data Package Delivery Date”). If the Option Data Package is missing material items that should have been included based upon scope of deliverables to be provided by Perspective under the Development Plan, then, after Lantheus’ request (which shall be made within [***] after the Program Option Data Package Delivery Date), Perspective shall add such items to the electronic data room as soon as practicable and the Program License Option Election Period shall be extended by [***]. Following the date of delivery of the Option Data Package, Perspective shall promptly update the Option Data Package during the remainder of the Program License Option Election Period, and any Program License Option Negotiation Period, to incorporate any new material information that would have been required to be included in the Option Data Package if such new information had existed as of the date of delivery of the Option Data Package, which updates shall be made as promptly as practicable and in any event within [***] after generation or receipt of any such new information by Perspective or any of its Affiliates.

 

3.2.4

Exercise of Program License Option. Lantheus and/or its Affiliates may exercise the Program License Option by providing written notice to Perspective of its option exercise (the “Program License Option Exercise Notice”) within [***] after receipt of the Option Data Package in accordance with Section 3.2.3 (the “Program License Option Election Period”). In the event that Lantheus or its Affiliate does not provide its written Option Exercise Notice within the Program License Option Election Period to Perspective, the Program License Option shall expire.

 

 

3.2.5

Program License Option Negotiation Period.

 

(a)

For a period of [***] from the date of delivery of the Program License Option Exercise Notice or such longer period as the Parties may mutually agree in writing (each, a “Program License Option Negotiation Period”) for a given Preclinical Development Program, the Parties shall negotiate reasonable and in good faith the terms and conditions of an agreement (the “Definitive Program License Agreement”) for Lantheus to obtain an exclusive, worldwide, royalty- and milestone-bearing right and license under the Perspective Program Technology to Exploit the Lead Candidate in the Program Option Field, which Definitive Program License Agreement shall be consistent with the terms and conditions set forth in Exhibit B (the “Program License Key Terms”) or as the Parties mutually agree. If the Parties are unable to enter into the Definitive Program License Agreement by the end of the Program License Option Negotiation Period, then, subject to subsection (b), below, Perspective may enter into an agreement with any third party for the Exploitation of products in the Program Option Field.

 

(b)

For a period of twelve (12) months from the expiration of the Program License Option Negotiation Period (the “Program Option Tail Period”), if Perspective receives a bona fide written offer from a third party pursuant to which Perspective would grant such third party the right to acquire, or a license or other rights to, such Preclinical Development Program (including the Lead Candidate in the Program Option Field), Perspective shall promptly provide Lantheus in writing a copy of the terms of such offer (and if applicable, the proposed agreement), together with a summary of any results, data or other information generated by or on behalf of Perspective with respect to such Preclinical Development Program (including any such information regarding the Lead Candidate generated since the delivery of the Option Data Package to Lantheus pursuant to Section 3.2.3). If Lantheus notifies Perspective in writing within [***] after receipt of all such information from Perspective of its intent to match the terms of the third party offer (the “Program Match Notice”), the Parties shall negotiate exclusively and reasonably and in good faith for a period of up to [***] (or such longer period as agreed by the Parties in writing) the terms of such acquisition, license or other rights for Lantheus with respect to the Preclinical Development Program (including the Lead Candidate in the Program Option Field), on the same terms as offered by the third party. If Lantheus does not deliver the Program Match Notice to Perspective within such [***] period, or if the Parties subsequently fail to execute a definitive agreement within such [***] negotiation period (or any mutually agreed extension thereof), then Perspective shall have the right to enter into any agreement with a third party for such Preclinical Development Program without any further obligations to Lantheus with respect thereto; provided that, during the Program Option Tail Period, Perspective would not have the right to enter into any agreement with a third party on terms that are [***].

 

(c)

For clarity, and without limiting Lantheus’ rights under Article 4, the obligations set forth in this Section 3.2.5 shall survive the consummation of an Acquisition Transaction involving a Third Party.

 

3.3

Option Exercise by Affiliates. Notwithstanding anything to the contrary in this Agreement, in the event that the VMT Option or any Program Option is exercised on behalf of an Affiliate of Lantheus (rather than Lantheus itself), after the exercise of such option, (a) any reference in this Agreement (including the Exhibits hereto) to (i) “Lantheus” shall mean such Affiliate and (ii) “Parties” shall mean Perspective and such Affiliate of Lantheus, and (b) such Affiliate of Lantheus shall thereafter assume all of Lantheus’ rights, obligations and liabilities under this Agreement (and, if applicable, any license agreement entered into in connection with the option) and shall be the counterparty to any such license agreement with Perspective.

 

 

3.4

No Implied License. Each Party acknowledges that the rights granted in this Agreement are limited to the scope expressly granted. Accordingly, except for the rights expressly granted under this Agreement, no right, title, or interest of any nature whatsoever is granted whether by implication, estoppel, reliance, or otherwise, by either Party to the other Party. All rights with respect to any know-how, patent or other intellectual property rights that are not specifically granted herein are reserved to the owner thereof.

 

ARTICLE 4

Change Of Control

 

4.1

Right of First Offer. During the Change of Control Rights Period, Perspective will not, and will cause its Subsidiaries and its and their respective directors, officers, employees, advisors and other representatives not to (a) solicit or encourage any inquiries, offers or proposals for, or that could reasonably be expected to lead to, an Acquisition Proposal from a Third Party (provided, that ordinary course discussions conducted in good faith with Third Parties regarding Perspective’s scientific programs and the progress of those programs, a Bona Fide Financing, potential collaborations and partnerships and other similar matters that are typical of a company like Perspective and do not involve an Acquisition Proposal shall not by themselves constitute solicitation or encouragement hereunder (provided that Perspective discloses to such Third Parties its obligation to Lantheus under this Section 4.1)), or (b) otherwise initiate a process that could reasonably be expected to result in a potential Acquisition Proposal from a Third Party, in the case of each of clause (a) and (b), without first notifying Lantheus in writing (a “ROFO Notice”), which notice will include [***]. If Lantheus fails or declines to submit an Acquisition Proposal within [***] following the receipt of a ROFO Notice (the “ROFO Consideration Period”), which period may be shortened or extended by mutual written agreement of the Parties, Lantheus hereby consents to Perspective directly or indirectly soliciting or encouraging, or entering into discussions with Third Parties with respect to, Acquisition Proposals, subject to Sections 4.3 and 4.4.

 

4.2

Notice of Offer. If, during the Change of Control Rights Period (including in each case, following the end of any ROFO Consideration Period), Perspective receives an Acquisition Proposal from a Third Party, Perspective shall immediately notify such Third Party of Lantheus’ rights under this Agreement and shall promptly, but no later than [***] following the receipt of such Acquisition Proposal, notify Lantheus in writing of receipt thereof, [***] (a “Third Party Offer Notice”). If Lantheus (a) fails to respond to such Third Party Offer Notice or (b) does not make an Acquisition Proposal to Perspective, in either case, within [***] following the receipt of a Third Party Offer Notice, which period may be shortened or extended by mutual written agreement of the Parties (the “Third Party Offer Consideration Period”), Lantheus hereby consents to Perspective pursuing such Acquisition Proposal with such Third Party (including engaging and discussions and negotiations with respect thereto), subject to Section 4.3. During the Third Party Offer Consideration Period, Perspective shall not engage in any substantive discussions or negotiations with, or provide any non-public information to, any Third Party or their representatives. A Third Party Offer Notice must be delivered in respect of any Third Party that makes an Acquisition Proposal. Notwithstanding anything contained herein, in the event that the terms of any Acquisition Proposal from a Third Party materially change at any time following the expiration of the Third Party Offer Consideration Period (including any reduction in, or change in the composition of, the consideration offered by such Third Party, but excluding any increase in the consideration offered by such Third Party), Perspective shall promptly, but no later than [***] following the receipt of such materially amended terms, notify Lantheus in writing of receipt of such materially amended Acquisition Proposal and provide Lantheus with a subsequent [***] period to consider the amended Acquisition Proposal, during which the Third Party Offer Consideration Period will be deemed to be in effect.

 

 

4.3

Competing Instrument. During the Change of Control Rights Period, Perspective may not enter into (a) any letter of intent, memorandum of understanding, agreement in principle, agreement, contract or commitment (whether or not binding) with respect to an Acquisition Proposal with a Third Party (other than a confidentiality agreement containing customary standstill restrictions following the ROFO Consideration Period or Third Party Offer Consideration Period so long as such confidentiality agreement could not reasonably be expected to prevent Perspective from complying with its obligations under this Agreement) or (b) any agreement, contract or commitment that could impede the ability of Lantheus to effect an Acquisition Transaction (a “Competing Instrument”), unless Perspective promptly notifies Lantheus in writing (a “Competing Instrument Notice”) at least [***] before entering into a Competing Instrument (the “Competing Instrument Period”). Such Competing Instrument Notice shall include [***].

 

4.4

Negotiation. If, during the Change of Control Rights Period, any ROFO Consideration Period or any Competing Instrument Period, Lantheus submits an Acquisition Proposal to Perspective for a transaction that would result in an Acquisition Transaction of its own accord or in response to a ROFO Notice or a Competing Instrument Notice, Lantheus and Perspective will negotiate reasonably and in good faith the potential terms and conditions for such a potential transaction that would result in an Acquisition Transaction for a period of [***], which period may be extended by mutual written agreement of the Parties or [***] (the “COC Negotiation Period”). Until the expiration of the COC Negotiation Period, Perspective shall not, and shall cause its representatives not to (A), enter into, engage in, facilitate, knowingly encourage, continue, provide information to or otherwise participate in any discussions or negotiations with any Third Party regarding an Acquisition Proposal, or that would reasonably be expected to lead to an Acquisition Proposal, or (B) enter into any Competing Instrument or letter of intent, memorandum of understanding, agreement in principle or commitment (whether or not binding), in each case, without Lantheus’ prior written consent.

 

4.5

Cooperation. During the ROFO Consideration Period, Competing Instrument Period, Third Party Offer Consideration Period and any COC Negotiation Period, Perspective will (a) make itself available to negotiate reasonably and in good faith (and cause its officers, employees, financial advisor and outside legal counsel to be available to negotiate) with Lantheus and its representatives (to the extent Lantheus wishes to negotiate) and (b) promptly (and in any event within [***]) provide any non-public information regarding Perspective that Lantheus shall reasonably request and afford Lantheus reasonable access to Perspective’s officers and employees to discuss such non-public information. Such information and access shall not be conditioned upon execution of any further documentation or agreements by Lantheus other than customary “clean team agreements” to the extent mutually deemed necessary or advisable by outside legal counsel for Lantheus and Perspective.

 

4.6

No Obligation to Enter into Acquisition Proposal; Definitive Agreement. The Parties hereby acknowledge and agree that (a) the Parties shall have no obligation to enter into a definitive agreement concerning an Acquisition Proposal, and any obligations of the Parties to effect an Acquisition Proposal shall be subject to the execution of definitive agreements with respect to such Acquisition Transaction and the receipt of all necessary approvals, including, if required, approval of the holders of the capital stock of Perspective; (b) Lantheus has no obligation hereunder to make, or engage in discussions with respect to, any Acquisition Proposal and (b) the Parties have the right to engage any appropriate advisors in connection with a proposed Acquisition Transaction.

 

4.7

Tolling of Option Periods. The Option Election Period, Option Negotiation Period, Program License Option Election Period, Program License Option Negotiation Period and any Tail Period shall in each case automatically be extended during the pendency of any ROFO Consideration Period, Competing Instrument Period, Third Party Offer Consideration Period or COC Negotiation Period, as applicable.

 

4.8	Definitions. For purposes of this Agreement, the following terms shall have the following meanings.

 

 

4.8.1

“Acquisition Proposal” means any proposal, offer or indication of interest relating to any Acquisition Transaction.

 

4.8.2

“Acquisition Transaction” means transaction or series of related transactions, other than a Bona Fide Financing, involving, directly or indirectly: (a) any acquisition (by asset purchase, stock purchase, merger, license or otherwise) by any Person or group of any business or assets of Perspective or any of its Subsidiaries (including capital stock of or ownership interest in any Subsidiary) that accounted for or generated [***] of Perspective’s and its Subsidiaries’ consolidated assets (by fair market value) or net revenue for the latest preceding [***] for which consolidated financial statements are available, (b) any acquisition of beneficial ownership by any Person or group of [***] of the outstanding shares of Perspective common stock and any other securities entitled to vote on the election of directors or any tender or exchange offer that if consummated would result in any Person or group beneficially owning [***] of the outstanding shares of Perspective common stock and any other securities entitled to vote on the election of directors or (c) any merger, consolidation, share exchange, business combination, recapitalization, liquidation, dissolution or similar transaction involving Perspective or any of its Subsidiaries which would result in any Person or group acquiring beneficial ownership of at least [***] of the outstanding common stock and other securities entitled to vote on the election of directors of the entity surviving such transaction.

 

4.8.3

“Bona Fide Financing” means a public or private offering of its equity securities or an “at the market offering” as defined in Rule 415(a)(4) promulgated under the Securities Act of 1933 in which no Person or group acquires equity securities that results in such Person beneficially owning [***] of the outstanding capital stock or voting power of Perspective following such transaction.

 

4.8.4

“Person” means an individual or a corporation, partnership, trust, incorporated or unincorporated association, joint venture, limited liability company, joint stock company, government (or an agency or political subdivision thereof) or other entity of any kind.

 

4.8.5

“Subsidiary” means, with respect to a Person, any Person, whether incorporated or unincorporated, of which (a) at least 50% of the securities or ownership interests having by their terms ordinary voting power to elect a majority of the board of directors or other Persons performing similar functions, (b) a general partner interest or (c) a managing member interest, is directly or indirectly owned or controlled by the subject Person or by one or more of its respective Subsidiaries.

 

4.8.6

“Third Party” means any Person other than Lantheus or any of its Affiliates.

 

ARTICLE 5

Confidentiality

 

5.1

Existing Confidential Disclosure Agreement. The terms and conditions of the Existing CDA, as modified by this Section 5.1 and by Section 4.5 of the Investment Agreement, shall govern the confidentiality and use of information disclosed by or on behalf of a Party or any of its Affiliates (including their respective representatives) to the other Party or any of its Affiliates (including their respective representatives) in connection with this Agreement. The terms and conditions of the Existing CDA are hereby incorporated by reference; provided, however, that, for purposes of this Agreement: (a) the performance of a Party’s obligations or exercise of a Party’s rights under this Agreement shall be deemed to be within the scope of the “Potential Business Arrangement” (and the evaluation thereof) under the Existing CDA (and, for clarity, each Party shall be permitted to use the Confidential Information of the other Party as is reasonably necessary to perform its obligations or exercise its rights under this Agreement); (b) the “Disclosure Period” under the Existing CDA shall be deemed to be the Term and (without limitation to the following clause (c)) any period thereafter during which a Party performs obligations or exercises rights under this Agreement; (c) the obligations under the Existing CDA shall apply for a period of [***] after the Term of this Agreement); and (d) Section 8 of the Existing CDA shall not be valid and shall be superseded by the representations, warranties and covenants set forth in this Agreement and the Investment Agreement with respect to information disclosed on or after the Effective Date; provided that, for purposes of such representations, warranties and covenants, any information included in the Option Data Package shall be deemed to have been disclosed to Lantheus on or after the Effective Date. For the avoidance of doubt and notwithstanding anything in this Agreement to the contrary, the data and information provided to Lantheus under Section 3 of this Agreement, including the Option Data Package, shall be considered Confidential Information of Perspective. Additionally, neither Party shall unreasonably withhold its consent (which may be provided by e-mail) to a written request by the other Party to disclose any of such Party’s information that is publicly available on its website or otherwise disclosed or referenced in publicly available corporate materials, including presentations/decks, for business or related promotional purposes (or such other purpose mutually agreed to by the Parties), provided that such disclosed information remains accurate at the time of such disclosure. “Existing CDA” means the Mutual Confidential Disclosure Agreement entered into by and between the Parties with an effective date of [***]. In the event of a conflict between the terms of the Existing CDA (as modified by this Section 5.1) and the terms of this Agreement (without incorporation of the Existing CDA), the terms of this Agreement shall govern.

 

 

ARTICLE 6

Term

 

6.1

Term. The term of this Agreement (the “Term”) shall commence on the Effective Date and shall continue in full force and effect until the latest of: (a) expiration of the Option Election Period (for clarity, whether or not the VMT Option is exercised); (b) in the event that the VMT Option is exercised, the earliest of (i) expiration of the Option Negotiation Period(s) or (ii) execution of an agreement between the Parties (or their Affiliates), in accordance with Section 3.1.5, with respect to the exercised VMT Option; (c) expiration of the last Program Preclinical Co-Funding Option Election Period without exercise of the related Program Preclinical Co-Funding Option; (d) expiration of the last Program License Option Election Period (for clarity, whether or not such Program Option is exercised); and (e) in the event that a Program License Option is exercised, the earliest of (i) expiration of the related Program License Option Negotiation Period(s) or (ii) execution of the related agreement between the Parties (or their Affiliates), in accordance with Section 3.2.5, with respect to the exercised Program License Option.

 

6.2

Effects of Termination or Expiration. Termination or expiration of this Agreement shall not relieve the Parties of any obligation or liability that, at the time of termination or expiration, has already accrued hereunder, or which is attributable to a period prior to the effective date of such termination or expiration, including any liability for breach of this Agreement arising prior to such termination or expiration. Without limitation to the foregoing, Article 1, Article 4 and Article 5 and Article 8, and Sections 3.3, 3.4 and this Section 6.2 shall survive termination or expiration of this Agreement.

 

ARTICLE 7

Representations, Warranties And Covenants

 

7.1

Mutual Representations and Warranties. Each Party hereto represents and warrants to the other Party that: (a) it has the full right, power and authority to enter into this Agreement and perform its obligations hereunder, (b) the execution and delivery of this Agreement has been authorized by all requisite corporate or company action of such Party, and (c) this Agreement is and will remain a valid and binding obligation of such Party, enforceable in accordance with its terms, subject to laws of general application relating to bankruptcy, insolvency and the relief of debtors.

 

 

7.2	Additional Representations and Warranties of Perspective.

 

7.2.1

The representations and warranties made by Perspective to Lantheus pursuant to Article 2 of the Investment Agreement (and any related definitions) are hereby incorporated by reference.

 

7.2.2

Perspective further represents and warrants to Lantheus as of the Effective Date that:

 

(a)

the execution and delivery of this Agreement and the performance of Perspective’s obligations hereunder (including the potential execution of a Definitive License Agreement and Definitive Program License Agreement and consummation of the transactions contemplated hereby and thereby) does not and will not require the approval of Perspective’s stockholders;

 

(b)

neither Perspective nor any of its Affiliates has entered into any agreement with a third party, whether written or oral, pursuant to which it assigned, transferred, licensed, conveyed, or otherwise granted any rights to develop, manufacture or commercialize any VMT-α-NET Product, or any Lead Candidates developed using the Perspective Platform Technology in the Program Option Field, other than with a service provider contracted to perform development or manufacturing services on behalf of Perspective or its Affiliates (in each case, solely to the extent necessary for such service provider to provide such contracted services), each of which has been disclosed to Lantheus;

 

(c)

the VMT-α-NET Diligence Package is true and correct in all material respects and does not omit to state any material fact necessary to make the statements or facts contained therein, in light of the circumstances under which they were made, not misleading;

 

(d)

the intellectual property, regulatory documentation, data and information Controlled by Perspective with respect to the Exploitation of the VMT-α-NET Product, the Lead Candidate or the Perspective Platform Technology constitute all of the intellectual property, regulatory documentation, data and information owned by or licensed (or sublicensed) or optioned to Perspective or any of its Affiliates that are necessary or reasonably useful for such Exploitation;

 

(e)

the VMT-α-NET Product constitutes the only product owned by or licensed (or sublicensed) or optioned to Perspective or any of its Affiliates under or in connection with VMT-α-NET;

 

(f)

Perspective has provided to Lantheus access to true and complete copies of all Upstream In-Licenses. All Upstream In-Licenses are in full force and effect and, except for any modifications or amendments provided to Lantheus in writing, have not been modified or amended. Neither Perspective nor its Affiliates nor, to the best of Perspective’s knowledge, any third party licensor under any Upstream In-License, is in material breach of such Upstream In-License (including, for clarity, any diligence obligations thereunder); and

 

(g)

Perspective (i) is solvent and a going concern and has not received any notifications to the contrary from any third party, court or governmental body and (ii) has sufficient capital on hand to fulfill its current financial obligations.

 

7.3	Covenants of Perspective. Perspective hereby covenants to Lantheus, on behalf of itself and its Affiliates, that:

 

7.3.1

Perspective shall not, and shall cause its Affiliates not to, enter into, discuss or negotiate any agreement, written or oral (including with respect to any assignment, transfer, license, conveyance or other encumbrance of Perspective’s or any of its Affiliate’s right, title or interest in or to any intellectual property rights that claim or cover the VMT-α-NET Product or the Lead Candidate or the Exploitation of any of the foregoing or are necessary or reasonably useful in connection with the exploitation of products under any Preclinical Development Program for the Program Option Field), that would conflict with the rights granted to Lantheus under this Agreement (including the rights granted to Lantheus under Article 3 or Article 4), in each case other than to the extent expressly permitted by Article 4;

 

 

7.3.2

the Option Data Package (as of the date of delivery of each Option Data Package) shall be true, complete and correct in all material respects and Perspective shall not, and shall cause its Affiliates not to, omit to state any material fact necessary to make the statements or facts contained therein, in light of the circumstances under which they were made, not misleading;

 

7.3.3

Perspective (a) shall not, and shall cause its Affiliates not to, engage, in any capacity in connection with the VMT-α-NET Product or any Lead Candidate, any third party that is debarred or subject to debarment by any regulatory authority and (b) shall promptly notify Lantheus in writing if (i) it or any of its Affiliates becomes debarred or subject to debarment by any regulatory authority or (ii) any third party engaged by Perspective or any of its Affiliates in any capacity in connection with the VMT-α-NET Product or any Lead Candidate becomes debarred or subject to debarment by any regulatory authority;

 

7.3.4

Perspective and its Affiliates shall conduct, and shall cause their respective contractors and consultants to conduct, all development and manufacture of the VMT-α-NET Product and any Lead Candidate, including any and all non-clinical and clinical studies, in accordance with applicable law;

 

7.3.5

during the Term, Perspective shall, and shall cause its Affiliates to, use a portion of the proceeds from the Upfront Payment [***]; and

 

7.3.6

Perspective shall, and shall cause its Affiliates to, maintain in good standing, and not materially breach, each Upstream In-License. Perspective shall promptly notify Lantheus in writing if Perspective or any of its Affiliates sends or receives a notice of material breach under any Upstream In-License. Perspective shall not, and shall cause its Affiliates not to, amend or modify any Upstream In-License in a manner that would conflict with or adversely affect Lantheus’ rights hereunder without first obtaining Lantheus’ written consent.

 

ARTICLE 8

Additional Provisions

 

8.1

Disclaimer. EXCEPT AS OTHERWISE PROVIDED HEREIN (OR IN THE INVESTMENT AGREEMENT OR THE ANCILLARY DOCUMENTS DELIVERED THERETO), NEITHER PARTY MAKES ANY REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY WARRANTY OF PERFORMANCE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, COMMERCIAL UTILITY, NON-INFRINGEMENT OR TITLE.

 

8.2

Relationship of the Parties. Nothing in this Agreement is intended or shall be deemed, for financial, tax, legal or other purposes, to constitute a partnership, agency, joint venture or employer- employee relationship between the Parties. The Parties are independent contractors and at no time will either Party make commitments or incur any charges or expenses for or on behalf of the other Party.

 

 

8.3

Expenses. Except as otherwise provided in this Agreement, each Party shall pay the fees and expenses of its advisors, counsel, accountants and other experts, if any, and all other expenses, incurred by such Party incident to the negotiation, preparation, execution, delivery and performance of this Agreement.

 

8.4	Third Party Beneficiary. No party, other than Perspective or Lantheus or their respective Affiliates, shall be entitled to any rights whatsoever by virtue of the relationships created by or arising under this Agreement, including rights as a third party beneficiary.

 

8.5

Successors and Assignment. The terms and provisions hereof shall inure to the benefit of, and be binding upon, the Parties and their respective successors and permitted assigns. Neither Party may assign or transfer this Agreement or any of its rights or obligations hereunder, by operation of law or otherwise, without the prior written consent of the other Party; provided that (a) Lantheus shall have the right to assign this Agreement to an Affiliate and (b) either Party shall have the right to assign this Agreement to a third party that acquires all or substantially all of the business or assets of such Party to which this Agreement relates (in the case of Perspective, subject to compliance with the requirements of Article IV). Any assignment not in accordance with this Section 8.5 shall be void.

 

8.6	Further Actions. Each Party agrees to execute, acknowledge and deliver such further instruments and to do all such other acts as may be necessary or appropriate in order to carry out the purposes and intent of this Agreement.

 

8.7

Entire Agreement of the Parties; Amendments. This Agreement and its Exhibits, and the Existing CDA (as incorporated by reference pursuant to Section 5.1), together with the Other Transaction Agreements entered into concurrently herewith, constitute and contain the entire understanding and agreement of the Parties respecting the subject matter hereof and cancel and supersede any and all prior negotiations, correspondence, understandings and agreements between the Parties, whether oral or written, regarding such subject matter. In the event of a conflict between the terms and conditions of the Other Transaction Agreements and the terms and conditions of this Agreement, the terms and conditions of this Agreement shall govern with respect to the subject matter hereof. No waiver, modification or amendment of any provision of this Agreement shall be valid or effective unless made in a writing referencing this Agreement and signed by a duly authorized officer of each Party.

 

8.8

Governing Law; Dispute Resolution. This Agreement (and all claims, controversies and causes of action with respect hereto or arising hereunder) shall be governed by, and construed in accordance with, the internal laws of the State of Delaware without regard to the choice of law principles thereof. Each of the parties hereto irrevocably submits to the exclusive jurisdiction of the Delaware Chancery Court (or, if the Delaware Chancery Court shall be unavailable, then any federal court of the United States of America sitting in the State of Delaware) for the purpose of any suit, action, proceeding or judgment relating to or arising out of this Agreement and the transactions contemplated hereby. Service of process in connection with any such suit, action or proceeding may be served on each party hereto anywhere in the world by the same methods as are specified for the giving of notices under this Agreement. Each of the parties hereto irrevocably consents to the jurisdiction of any such court in any such suit, action or proceeding and to the laying of venue in such court. Each party hereto irrevocably waives any objection to the laying of venue of any such suit, action or proceeding brought in such courts and irrevocably waives any claim that any such suit, action or proceeding brought in any such court has been brought in an inconvenient forum.

 

NEITHER PERSPECTIVE NOR LANTHEUS, NOR ANY OF THEIR RESPECTIVE AFFILIATES, WILL BE LIABLE TO THE OTHER PARTY OR ITS AFFILIATES UNDER OR IN CONNECTION WITH THIS AGREEMENT FOR ANY INDIRECT, INCIDENTAL, SPECIAL, OR PUNITIVE OR EXEMPLARY DAMAGES, WHETHER LIABILITY IS ASSERTED IN CONTRACT, TORT (INCLUDING NEGLIGENCE AND STRICT PRODUCT LIABILITY), INDEMNITY, CONTRIBUTION, OR OTHERWISE, AND IRRESPECTIVE OF WHETHER THAT PARTY OR ANY REPRESENTATIVE OF THAT PARTY HAS BEEN ADVISED OF, OR OTHERWISE MIGHT HAVE ANTICIPATED THE POSSIBILITY OF, ANY SUCH LOSS OR DAMAGE.  NOTWITHSTANDING THE FOREGOING, NOTHING IN THIS SECTION 8.8 IS INTENDED TO OR SHALL LIMIT OR RESTRICT DAMAGES AVAILABLE FOR (A) A PARTY’S GROSS NEGLIGENCE, FRAUD, INTENTIONAL MISCONDUCT, OR BREACH OF ARTICLE 4 OR ARTICLE 5 OR (B) PERSPECTIVE’S GRANT OF A LICENSE, OPTION FOR A LICENSE OR OTHER RIGHT TO A THIRD PARTY IN VIOLATION OF THE EXCLUSIVE OPTION GRANTS UNDER SECTIONS 3.1 OR 3.2.

 

 

8.9

Notices and Deliveries. Any notice or other communication of the Parties required or permitted to be given or made under this Agreement will be in writing and will be deemed effective when sent in a manner that provides confirmation or acknowledgement of delivery and received at the address set forth below (or as changed by written notice pursuant to this Section 8.9).

 

For Perspective:	with a copy (which shall not constitute notice) to:
Contact for Notice: Perspective Therapeutics, Inc. 2401 Elliott Avenue Suite 320 Seattle, WA 98121 Attn.: Thijs Spoor, President & CEO Email: [***]	Hogan Lovells US LLP 609 Main Street, Suite 4200 Houston, Texas 77002 Attention: Andrew Strong; Steve Nicolai; Cullen Taylor Email: andrew.strong@hoganlovells.com; stephen.nicolai@hoganlovells.com; cullen.taylor@hoganlovells.com
For Lantheus:	with a copy (which shall not constitute notice) to:
Lantheus Alpha Therapy, LLC c/o Lantheus Holdings, Inc. 201 Burlington Road South Building Bedford, MA 01730 Attn: Daniel Niedzwiecki, Chief Administrative Officer and General Counsel Email: [***]	Cooley LLP 55 Hudson Yards New York, New York 10001 Attention: Geoffrey Spolyar; Divakar Gupta; Bill Roegge Email: gspolyar@cooley.com; dgupta@cooley.com; broegge@cooley.com

 

 

8.10

Waiver. A waiver by either Party of any of the terms and conditions of this Agreement in any instance shall not be deemed or construed to be a waiver of such term or condition for the future, or of any other term or condition hereof. All rights, remedies, undertakings, obligations and agreements contained in this Agreement shall be cumulative and none of them shall be in limitation of any other remedy, right, undertaking, obligation or agreement of either Party.

 

8.11

Severability. If any provision hereof should be held invalid, illegal or unenforceable in any respect, then, to the fullest extent permitted by law, (a) all other provisions hereof shall remain in full force and effect and shall be liberally construed in order to carry out the intentions of the parties as nearly as may be possible and (b) the parties shall use their best efforts to replace the invalid, illegal or unenforceable provision(s) with valid, legal and enforceable provision(s) which, insofar as practical, implement the purposes of such provision(s) in this Agreement.

 

 

8.12

Remedies. In the event of a breach or threatened breach by either Party of any of its obligations under this Agreement, the non-breaching Party, in addition to being entitled to exercise all rights granted by law and under this Agreement, including recovery of damages, will be entitled to equitable relief, including an injunction or injunctions and specific performance of its rights under this Agreement and to enforce specifically the terms and provisions hereof in the courts described in Section 8.12 without bond or proof of damages or otherwise (in each case, subject to the terms and conditions of this Section 8.12). Each Party agrees that monetary damages may not provide adequate compensation for any losses incurred by reason of a breach or threatened breach by it of any of its obligations under this Agreement. The Parties agree not to assert that a remedy of specific enforcement is unenforceable, invalid, contrary to law or inequitable for any reason, and agree not to assert that a remedy of monetary damages would provide an adequate remedy or that the Parties otherwise have an adequate remedy at law.

 

8.13

Interpretation. When a reference is made in this Agreement to an Article, a Section, Exhibit or Schedule, such reference shall be to an Article of, a Section of, or an Exhibit or Schedule to, this Agreement unless otherwise indicated. The table of contents and headings contained in this Agreement are for reference purposes only and shall not affect in any way the meaning or interpretation of this Agreement. Whenever the words “include”, “includes” or “including” are used in this Agreement, they shall be deemed to be followed by the words “without limitation”. The words “hereof”, “herein” and “hereunder” and words of similar import when used in this Agreement shall refer to this Agreement as a whole and not to any particular provision of this Agreement unless the context requires otherwise. The words “date hereof” when used in this Agreement shall refer to the date of this Agreement. The terms “or”, “any” and “either” are not exclusive. The word “extent” in the phrase “to the extent” shall mean the degree to which a subject or other thing extends, and such phrase shall not mean simply “if”. The word “will” shall be constructed to have the same meaning and affect as the word “shall”. All accounting terms used and not defined herein shall have the respective meanings given to them under GAAP. All terms defined in this Agreement shall have the defined meanings when used in any document made or delivered pursuant hereto unless otherwise defined therein. The definitions contained in this Agreement are applicable to the singular as well as the plural forms of such terms and to the masculine as well as to the feminine and neuter genders of such term. Any agreement, instrument or statute defined or referred to herein or in any agreement or instrument that is referred to herein means such agreement, instrument or statute as from time to time amended, modified or supplemented, including (in the case of agreements or instruments) by waiver or consent and (in the case of statutes) by succession of comparable successor statutes and references to all attachments thereto and instruments incorporated therein. Unless otherwise specifically indicated, all references to “dollars” or “$” shall refer to the lawful money of the United States. References to a Person are also to its permitted assigns and successors. When calculating the period of time between which, within which or following which any act is to be done or step taken pursuant to this Agreement, the date that is the reference date in calculating such period shall be excluded (unless, otherwise required by Law, if the last day of such period is not a Business Day, the period in question shall end on the next succeeding Business Day). The parties hereto have participated jointly in the negotiation and drafting of this Agreement and, in the event an ambiguity or question of intent or interpretation arises, this Agreement shall be construed as jointly drafted by the parties hereto and no presumption or burden of proof shall arise favoring or disfavoring any party hereto by virtue of the authorship of any provision of this Agreement.

 

8.14

Counterparts. This Agreement may be executed in two (2) or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. Counterparts may be delivered via electronic mail (including pdf or any electronic signature complying with the U.S. federal ESIGN Act of 2000, e.g., www.docusign.com) or other transmission method and any counterpart so delivered shall be deemed to have been duly and validly delivered and be valid and effective for all purposes.

 

[Signature Page Follows]

 

  

In Witness Whereof, the Parties hereto have executed this Agreement as of the Effective Date.

 

PERSPECTIVE THERAPEUTICS, INC.			LANTHEUS ALPHA THERAPY, LLC
/s/ Johan (Thijs) Spoor			/s/ Mary Anne Heino
	Signature			Signature
Name:	Johan (Thijs) Spoor		Name:	Mary Anne Heino
Title:	Chief Executive Officer		Title:	Chief Executive Officer

 

 

Exhibit A

License Key Terms

 

[***]

 

 

Exhibit B

 

Program License Key Terms

 

[***]

 

 

v3.23.4

Document And Entity Information	Jan. 08, 2024
Document Information [Line Items]
Entity, Registrant Name	Perspective Therapeutics, Inc.
Document, Type	8-K/A
Document, Period End Date	Jan. 08, 2024
Entity, Incorporation, State or Country Code	DE
Entity, File Number	001-33407
Entity, Tax Identification Number	41-1458152
Entity, Address, Address Line One	2401 Elliott Avenue, Suite 320
Entity, Address, City or Town	Seattle
Entity, Address, State or Province	WA
Entity, Address, Postal Zip Code	98121
City Area Code	206
Local Phone Number	676-0900
Written Communications	false
Soliciting Material	false
Pre-commencement Tender Offer	false
Pre-commencement Issuer Tender Offer	false
Title of 12(b) Security	Common Stock
Trading Symbol	CATX
Security Exchange Name	NYSE
Entity, Emerging Growth Company	false
Amendment Description	Form 8-K/A date of report 01-08-24
Amendment Flag	true
Entity, Central Index Key	0000728387

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