Item 1.01
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Entry into a Material Definitive Agreement.
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On January 26, 2018, Enumeral Biomedical Holdings, Inc. (the
“Company”) entered into an Asset Purchase Agreement (the “Purchase Agreement”) with XOMA US LLC (the “Buyer”).
The Purchase Agreement contemplates that, subject to the provisions contained therein, the Company will sell and Buyer will purchase
specified assets of the Company’s PD-1 antibody program in consideration for a cash payment from the Buyer in the amount
of $1,600,000 (the “Purchase Price”). Further, upon execution of the Purchase Agreement and Company’s receipt
from Buyer of the Deposit (as defined in below), the Company was required to, and did, commence a case (the “Chapter 11 Case”)
under chapter 11 of the United States Bankruptcy Code in the United States Bankruptcy Court for the District of Massachusetts (the
“Bankruptcy Court”). See Item 1.03 below for additional information concerning the Chapter 11 Case.
The Purchase Agreement provides that, subject to the entry
in the Chapter 11 Case of an order approving the sale of property free and clear of liens and claims (the “Sale Order”)
and the satisfaction or waiver of the other closing conditions set forth in the Purchase Agreement, the Company will sell, assign
and transfer to Buyer, free and clear of all Encumbrances (as defined in the Purchase Agreement), but subject to the Assumed Liabilities
(as defined below), all of the Company’s right, title and interest in and to the intellectual property assets directly related
to the Company’s PD-1 antibody program, including without limitation (a) all Intellectual Property and Intellectual Property
Rights ( as such terms are defined in the Purchase Agreement) and all claims and causes of action arising therefor or related thereto,
and (b) all of the Company’s rights under that certain Definitive License and Transfer Agreement (the “Pieris Agreement”),
dated as of June 6, 2016 and as subsequently amended on January 3, 2017, between the Company, Pieris Pharmaceuticals, Inc. and
Pieris Pharmaceuticals GmbH (collectively, the “Purchased Assets”).
The sale of the Purchased Assets is subject to, among other
things, the Company’s receipt of higher or better offers, as further explained below. The Company invites parties interested
in buying the Purchased Assets, or engaging in any other form of transaction regarding the Purchased Assets, to contact the Company.
The Purchase Agreement also provides that the Buyer shall
assume and thereafter perform the liabilities of the Company under the Pieris Agreement arising after the Closing (the “Assumed
Liabilities”). The Buyer will not assume and will have no obligations with respect to any liabilities of the Company other
than the Assumed Liabilities.
Pursuant to the terms of the Purchase Agreement, the Buyer
has delivered to Company’s legal counsel a deposit in the amount of $160,000.00 (the “Deposit”), which shall
be either (a) applied toward the Purchase Price at the Closing (as defined below), (b) returned to Buyer (without interest) if
the Purchase Agreement is terminated under certain specified circumstances, or (c) retained by the Company if the Purchase Agreement
is terminated due to Buyer’s breach thereof.
The closing of the purchase and sale of the Purchased Assets
and the assumption of the Assumed Liabilities (the “Closing”) shall take place no later than two business days following
the satisfaction or waiver of the closing conditions set forth in the Purchase Agreement, or such other date as mutually agreed
upon by the Company and Buyer.
The Purchase Agreement provides that not later than January
30, 2018, the Company shall (a) commence the Chapter 11 Case; (b) file a sale motion (the “Sale Motion”) in the Chapter
11 Case seeking approval of and authorization to perform the Purchase Agreement and entry of the Sale Order; and (c) file a bid
procedures motion seeking entry of an order (the “Bid Procedures Order”).
If entered by the Bankruptcy Court in the form requested,
the Bid Procedures Order will set a date for a hearing on the Sale Motion (the “Sale Hearing”) and a deadline not less
than three (3) business days before the Sale Hearing for filing and service of objections to the Sale Motion and higher or better
offers for the Purchased Assets (each, a “Counterbid”). The requested Bid Procedures Order will specify that (i) the
Company shall solicit Counterbids, (ii) if any Counterbid is timely received, the Buyer and such counterbidder(s) shall each have
an opportunity to submit a final sealed bid not later than 4:00 p.m. on the second business day preceding the date scheduled for
the Sale Hearing (unless the Bankruptcy Court specifies a different deadline), and (iii) if the Purchase Agreement is terminated
pursuant to certain provisions specified therein, the Company shall pay to Buyer a breakup fee in the amount of $64,000.
The obligations of Buyer and the Company to consummate the
transactions contemplated by the Purchase Agreement are subject to certain closing conditions, including (a) that the Sale Order
shall have been entered and remain in full force and effect, (b) that the representations and warranties of the Company and Buyer,
respectively, be true and correct in all respects as of the date of the Purchase Agreement and the date of Closing, (c) that the
Company and Buyer shall have performed and complied in all material respects with the obligations and covenants required by the
Purchase Agreement, and (d) that there shall not have occurred any material adverse effect with respect to the Purchase Assets
(unless cured at or before the Closing).
The Purchase Agreement includes customary representations
and warranties. The terms of the Purchase Agreement provide that, except in the case of fraud or intentional misrepresentation,
the representations and warranties shall not survive the Closing.
The Purchase Agreement may be terminated by either party
prior to Closing under certain specified conditions including, but not limited to, (a) a material breach by the other party of
the representations, warranties or covenants in the Purchase Agreement, subject to a 5 business day cure period (except in the
case of a failure of a party to perform at the Closing, as specified in the Purchase Agreement); (b) if any governmental authority
enjoins or otherwise prohibits the transaction contemplated by the Purchase Agreement, except in the event of a stay that by its
terms is not permanent and that is lifted prior to the date specified in the Purchase Agreement; (c) if the Bid Procedures Order
is not entered by February 27, 2018; (d) if the Sale Order is not entered by March 29, 2018; or (e) if the Closing does not occur
by April 3, 2018.
In addition, the Buyer may terminate the Purchase Agreement
prior to Closing in the event that the Company files a pleading that seeks (other than, as per the Sale Motion, on a contingent
basis in the event of a higher or better offer) entry of, or the Bankruptcy Court enters, an order that the Purchased Assets be
sold to a person other than Buyer.
The Company may terminate the Purchase Agreement prior to
Closing in the event that the Company determines in good faith, in the exercise of its fiduciary duties as debtor in possession,
that the sale of the Purchased Assets pursuant to the terms and conditions of the Purchase Agreement is no longer in the best interests
of the bankruptcy estate of the Company by reason of developments after the date of the Purchase Agreement.
The foregoing summary of the Purchase Agreement does not
purport to be complete and is qualified in its entirety by reference to the form of the Purchase Agreement, which is filed as Exhibit
2.1 to this Current Report on Form 8-K and incorporated by reference herein.