UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K/A
CURRENT REPORT
Pursuant
to Section 13 or 15(d)
of the Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): September 4, 2015
Agenus Inc.
(Exact name
of registrant as specified in its charter)
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Delaware |
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000-29089 |
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06-1562417 |
(State or other Jurisdiction
of Incorporation) |
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(Commission
File Number) |
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(IRS Employer
Identification No.) |
3 Forbes Road
Lexington, MA 02421
(Address of Principal Executive Offices) (Zip Code)
(781) 674-4400
(Registrants telephone number, including area code)
(Former name or former address, if changed since last report)
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the
following provisions:
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Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
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Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |
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Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) |
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Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) |
EXPLANATORY NOTE
This amendment to the Form 8-K of Agenus Inc. (Agenus), originally filed on September 9, 2015 (the Form
8-K), is being filed to file copies of (i) the Note Purchase Agreement, by and among Antigenics LLC, a wholly owned subsidiary of Agenus (Antigenics), the guarantors named therein, Oberland Capital SA Zermatt LLC,
as collateral agent (Oberland), an affiliate of Oberland as the lead purchaser and other purchasers, dated September 4, 2015 (the Note Purchase Agreement) as Exhibit 4.1 to the Form 8-K, (ii) the Form
of Limited Recourse Note as Exhibit 4.2 to the Form 8-K and (iii) the Revenue Interest Assignment and Termination Agreement, by and among Agenus, Antigenics, Ingalls & Snyder Value Partners, L.P. and Arthur Koenig (together
Ingalls), dated September 4, 2015 (the Assignment and Termination Agreement) as Exhibit 4.3 to the Form 8-K. Confidential treatment has been requested for certain portions of the Note Purchase Agreement.
Omitted portions have been filed separately with the U.S. Securities and Exchange Commission (the SEC). Except as provided below, the original Form 8-K and exhibits are otherwise unaltered by this amendment.
The Note Purchase Agreement and the Form of Note are incorporated by reference into Item 1.01 of the Form 8-K. The Assignment and
Termination Agreement is incorporated by reference into Item 1.02 of the form 8-K. The Note Purchase Agreement, the Form of Note and the Assignment and Termination Agreement are all incorporated by reference into Items 2.01, 2.03 and 3.02 of
the Form 8-K.
Item 9.01 Financial Statements and Exhibits.
(d) Exhibits.
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4.1* |
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Note Purchase Agreement, by and among Antigenics LLC, the guarantors named therein, Oberland Capital SA Zermatt LLC, as collateral agent (Oberland), an affiliate of Oberland as the lead purchaser and the other
purchasers, dated September 4, 2015. |
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4.2 |
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Form of Limited Recourse Note under the Note Purchase Agreement, by and among Antigenics LLC, the guarantors named therein, Oberland Capital SA Zermatt LLC, as collateral agent (Oberland), an affiliate of Oberland
as the lead purchaser and the other purchasers, dated September 4, 2015. |
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4.3 |
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Revenue Interest Assignment and Termination Agreement, by and among Agenus Inc., Antigenics LLC, Ingalls & Snyder Value Partners, L.P. and Arthur Koenig, dated September 4, 2015. |
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99.1 |
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Press Release, issued by the Company, dated September 9, 2015 (previously filed as Exhibit 99.1 to Agenus Inc.s Form 8-K filed with the SEC on September 9, 2015). |
* |
Certain confidential information contained in this exhibit was omitted by means of redacting a portion of the text and replacing it with [
***
]. This exhibit has been filed separately
with the SEC without the redaction pursuant to a Confidential Treatment Request under Rule 24b-2 of the Securities Act of 1934, as amended. |
2
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by
the undersigned hereunto duly authorized.
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Agenus Inc. |
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Dated: September 11, 2015 |
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By: |
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/s/ C. Evan Ballantyne |
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Name: |
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C. Evan Ballantyne |
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Title: |
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Chief Financial Officer |
3
Exhibit 4.1
EXECUTION VERSION
NOTE PURCHASE
AGREEMENT
DATED SEPTEMBER 4, 2015
among
ANTIGENICS LLC,
THE GUARANTORS NAMED HEREIN,
OBERLAND CAPITAL SA ZERMATT LLC, AS COLLATERAL AGENT
AND
THE PURCHASERS
NAMED HEREIN
LIMITED RECOURSE NOTES
The Note Purchase Agreement is not intended to provide any factual information about the Company. The Note Purchase Agreement contains representations,
warranties and covenants that the Company and Oberland made to each other as of specific dates. The assertions embodied in those representations, warranties and covenants were made solely for purposes of the Note Purchase Agreement between the
Company and Oberland and may be subject to important qualifications and limitations agreed to by the Company and Oberland in connection with negotiating its terms, including being qualified by confidential disclosures exchanged between the parties
in connection with the execution of the Note Purchase Agreement. Moreover, the representations and warranties may be subject to a contractual standard of materiality that may be different from what may be viewed as material to investors or security
holders, or may have been used for the purpose of allocating risk between the Company and Oberland rather than establishing matters as facts. Moreover, information concerning the subject matter of the representations and warranties may change after
the date of the Note Purchase Agreement, which subsequent information concerning the subject matter of the representations and warranties may change after the date of the Note Purchase Agreement, which subsequent information may or may not be fully
reflected in the Companys public disclosures. For the foregoing reasons, no person should rely on the representations and warranties as statements of factual information at the time they were made or otherwise.
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Portions of this Exhibit were omitted and have been filed separately with the Secretary of the Commission pursuant to the Companys application requesting confidential treatment under Rule 24b-2 of the Exchange Act;
[
***
] denotes omissions. |
TABLE OF CONTENTS
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Page |
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ARTICLE I INTRODUCTORY |
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1 |
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ARTICLE II RULES OF CONSTRUCTION AND DEFINED TERMS |
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1 |
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Section 2.1 |
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Rules of Construction and Defined Terms |
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1 |
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ARTICLE III SALE AND PURCHASE OF NOTES; FUNDING; NON-FUNDING PURCHASER; ADDITIONAL NOTES |
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2 |
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Section 3.1 |
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Sale and Purchase of Notes |
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2 |
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Section 3.2 |
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Additional Notes |
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2 |
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Section 3.3 |
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The Closings |
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2 |
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ARTICLE IV REPRESENTATIONS, WARRANTIES AND AGREEMENTS OF THE PURCHASERS |
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3 |
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Section 4.1 |
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Purchase for Investment and Restrictions on Resales |
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3 |
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Section 4.2 |
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QIB; Institutional Accredited Investor |
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3 |
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Section 4.3 |
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Due Diligence |
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3 |
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Section 4.4 |
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Organization |
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4 |
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Section 4.5 |
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Authorization |
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4 |
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Section 4.6 |
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Enforceability of this Agreement |
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4 |
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Section 4.7 |
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Sufficient Funds |
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4 |
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Section 4.8 |
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Tax Matters |
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5 |
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ARTICLE V REPRESENTATIONS AND WARRANTIES OF THE NOTE PARTIES |
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5 |
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Section 5.1 |
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Securities Laws |
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Section 5.2 |
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Investment Company Act |
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Section 5.3 |
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Governmental and Third Party Authorizations |
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6 |
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Section 5.4 |
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Use of Proceeds; Margin Regulations |
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6 |
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Section 5.5 |
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Organization |
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Section 5.6 |
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Authorization and Enforceability |
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6 |
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Section 5.7 |
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Capitalization |
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7 |
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Section 5.8 |
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Subsidiaries |
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7 |
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Section 5.9 |
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Collateral |
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7 |
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Section 5.10 |
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No Conflicts |
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Section 5.11 |
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Perfection |
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7 |
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Section 5.12 |
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No Proceedings |
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Section 5.13 |
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No Defaults |
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8 |
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Section 5.14 |
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Compliance with Applicable Law and Agreements |
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8 |
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Section 5.15 |
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Financial Statements |
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8 |
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Section 5.16 |
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Indebtedness |
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9 |
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Section 5.17 |
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Insurance |
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9 |
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Section 5.18 |
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Agreements; Actions |
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9 |
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Portions of this Exhibit were omitted and have been filed separately with the Secretary of the Commission pursuant to the Companys application requesting confidential treatment under Rule 24b-2 of the Exchange Act;
[
***
] denotes omissions. |
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Section 5.19 |
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Intellectual Property |
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Section 5.20 |
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Taxes |
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11 |
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Section 5.21 |
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Solvency |
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11 |
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Section 5.22 |
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ERISA |
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12 |
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Section 5.23 |
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Labor Relations |
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12 |
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Section 5.24 |
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Environmental and Safety Laws |
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12 |
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Section 5.25 |
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Disclosure |
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Section 5.26 |
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Products; Royalties |
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Section 5.27 |
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Applicable Agreements |
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Section 5.28 |
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Title to Other Property and Assets |
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16 |
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Section 5.29 |
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Permits |
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Section 5.30 |
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Brokers |
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16 |
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Section 5.31 |
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Changes |
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Section 5.32 |
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FIRPTA Compliance |
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Section 5.33 |
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No Bad Actors |
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Section 5.34 |
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OFAC; Anti-Terrorism Laws |
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ARTICLE VI CONDITIONS PRECEDENT TO THE CLOSINGS |
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Section 6.1 |
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Conditions Precedent to the Initial Closing |
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Section 6.2 |
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Conditions Precedent to the Additional Closing |
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ARTICLE VII INFORMATION AS TO THE PARENT AND THE ISSUER |
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Section 7.1 |
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Financial and Other Information |
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Section 7.2 |
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Reports |
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Section 7.3 |
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Confidentiality |
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ARTICLE VIII TERMS OF THE NOTES |
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24 |
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Section 8.1 |
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Maturity; Mandatory Payments |
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Section 8.2 |
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Interest |
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Section 8.3 |
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Buy-Out Provision |
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Section 8.4 |
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Optional Partial Payment |
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Section 8.5 |
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Payments |
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Section 8.6 |
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Pro Rata Treatment |
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27 |
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ARTICLE IX COVENANTS OF THE NOTE PARTIES |
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27 |
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Section 9.1 |
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Books and Records |
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Section 9.2 |
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Applicable Agreements |
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Section 9.3 |
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Applicable Patent Rights |
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30 |
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Section 9.4 |
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Audits |
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30 |
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Section 9.5 |
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Offsets |
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31 |
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Section 9.6 |
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Grant of Rights |
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31 |
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Section 9.7 |
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Insurance |
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32 |
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Section 9.8 |
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No Release of Operative Document Obligations |
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32 |
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Section 9.9 |
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Use of Proceeds |
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32 |
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Portions of this Exhibit were omitted and have been filed separately with the Secretary of the Commission pursuant to the Companys application requesting confidential treatment under Rule 24b-2 of the Exchange Act;
[
***
] denotes omissions. |
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Section 9.10 |
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Limitation on Indebtedness |
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Section 9.11 |
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Limitation on Liens |
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32 |
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Section 9.12 |
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Compliance with and Modification of Organizational Documents |
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32 |
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Section 9.13 |
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Compliance with Applicable Law |
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32 |
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Section 9.14 |
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Existence |
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32 |
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Section 9.15 |
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Mergers, Consolidations, Sale of Collateral |
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32 |
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Section 9.16 |
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Tax Matters; Securities Laws |
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Section 9.17 |
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Change in Business |
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33 |
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Section 9.18 |
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Additional Guarantors |
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33 |
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Section 9.19 |
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Collection Account |
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34 |
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ARTICLE X EVENTS OF DEFAULT |
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34 |
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Section 10.1 |
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Events of Default |
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35 |
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ARTICLE XI REMEDIES ON DEFAULT, ETC |
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37 |
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Section 11.1 |
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Acceleration |
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36 |
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Section 11.2 |
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Other Remedies; Limitations on Remedies |
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37 |
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Section 11.3 |
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Rescission |
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38 |
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Section 11.4 |
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No Waivers or Election of Remedies, Etc |
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38 |
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ARTICLE XII REGISTRATION; EXCHANGE; SUBSTITUTION OF NOTES |
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38 |
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Section 12.1 |
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Registration of Notes |
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38 |
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Section 12.2 |
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Transfer and Exchange of Notes |
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38 |
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Section 12.3 |
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Substitution of Notes |
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39 |
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ARTICLE XIII THE COLLATERAL AGENT |
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39 |
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Section 13.1 |
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Appointment and Authority |
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39 |
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Section 13.2 |
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Rights as a Noteholder |
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40 |
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Section 13.3 |
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Duties |
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40 |
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Section 13.4 |
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Exculpatory Provisions |
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42 |
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Section 13.5 |
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Reliance by Collateral Agent |
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43 |
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Section 13.6 |
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Delegation of Duties |
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44 |
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Section 13.7 |
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Resignation of Collateral Agent |
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44 |
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Section 13.8 |
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Non-Reliance on Collateral Agent and Other Noteholders |
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44 |
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Section 13.9 |
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Collateral and Guaranty Matters |
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45 |
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Section 13.10 |
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Reimbursement by Noteholders |
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45 |
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ARTICLE XIV AMENDMENT AND WAIVER |
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45 |
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Section 14.1 |
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Requirements |
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46 |
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Section 14.2 |
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Copies of Amendments, Waivers and Consents |
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46 |
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Section 14.3 |
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Binding Effect, Etc |
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46 |
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Section 14.4 |
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Notes Held by Issuer, Etc |
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46 |
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Portions of this Exhibit were omitted and have been filed separately with the Secretary of the Commission pursuant to the Companys application requesting confidential treatment under Rule 24b-2 of the Exchange Act;
[
***
] denotes omissions. |
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ARTICLE XV TAX MATTERS |
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47 |
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Section 15.1 |
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Statement to Noteholders |
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47 |
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Section 15.2 |
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Withholding |
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47 |
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Section 15.3 |
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Determinations and Responsibilities |
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48 |
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Section 15.4 |
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Survival |
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48 |
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ARTICLE XVI THE GUARANTEE |
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48 |
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Section 16.1 |
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The Guarantee |
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48 |
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Section 16.2 |
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Obligations Unconditional |
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49 |
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Section 16.3 |
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Reinstatement |
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50 |
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Section 16.4 |
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Subrogation |
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50 |
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Section 16.5 |
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Remedies |
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50 |
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Section 16.6 |
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Instrument for the Payment of Money |
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50 |
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Section 16.7 |
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Continuing Guarantee |
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51 |
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Section 16.8 |
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Rights of Contribution |
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51 |
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Section 16.9 |
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General Limitation on Guarantee Obligations |
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51 |
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Section 16.10 |
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Release of Subsidiary Guarantors |
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52 |
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ARTICLE XVII MISCELLANEOUS |
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52 |
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Section 17.1 |
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Successors and Assigns |
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52 |
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Section 17.2 |
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Payments Due on Non-Business Days |
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52 |
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Section 17.3 |
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Expenses |
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52 |
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Section 17.4 |
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Notices |
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53 |
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Section 17.5 |
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Survival of Representations and Warranties; Entire Agreement |
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53 |
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Section 17.6 |
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Severability |
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54 |
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Section 17.7 |
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Construction, Etc |
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54 |
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Section 17.8 |
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Counterparts |
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54 |
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Section 17.9 |
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Governing Law |
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54 |
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Section 17.10 |
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Jurisdiction and Process; Waiver of Jury Trial |
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54 |
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Section 17.11 |
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Confidentiality |
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55 |
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Section 17.12 |
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Tax Disclosure |
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55 |
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Section 17.13 |
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Indemnification |
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56 |
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Portions of this Exhibit were omitted and have been filed separately with the Secretary of the Commission pursuant to the Companys application requesting confidential treatment under Rule 24b-2 of the Exchange Act;
[
***
] denotes omissions. |
Disclosure Letter
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Section 5.3 |
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Governmental and Third Party Authorizations |
Section 5.7 |
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Capitalization |
Section 5.14 |
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Compliance with Applicable Law and Agreements |
Section 5.16 |
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Indebtedness |
Section 5.18 |
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Agreements; Actions |
Section 5.19 |
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Intellectual Property |
Section 5.28 |
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Property and Assets |
Section 5.27 |
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Applicable Agreements |
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Annex A |
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Rules of Construction and Defined Terms |
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Exhibit A |
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Form of Purchaser Addendum |
Exhibit B |
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Form of Note |
Exhibit C |
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Security and Pledge Agreement |
Exhibit D |
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Form of Direction Letter to the Counterparty |
Exhibit E |
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Form of Guarantee Assumption Agreement |
Exhibit F-1 |
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Form of Withholding Certificate |
Exhibit F-2 |
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Form of Withholding Certificate |
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Portions of this Exhibit were omitted and have been filed separately with the Secretary of the Commission pursuant to the Companys application requesting confidential treatment under Rule 24b-2 of the Exchange Act;
[
***
] denotes omissions. |
NOTE PURCHASE AGREEMENT
September 4, 2015
To the Purchasers and the
Collateral Agent
Ladies and Gentlemen:
Antigenics LLC, a Delaware limited liability company (the Issuer), together with the guarantors party hereto from time to
time, including Agenus Inc., a Delaware Corporation (Parent; and Parent together with each other guarantor, each a Guarantor and collectively, Guarantors; and Guarantors together with the
Issuer, each a Note Party and, collectively, Note Parties), hereby covenant and agree with you as follows:
ARTICLE I
INTRODUCTORY
The Issuer proposes, subject to the terms and conditions stated herein, to issue and sell to the purchasers named in Schedule 1
and each other purchaser that becomes a party hereto by execution and delivery of a Purchaser Addendum (each a Purchaser and collectively, Purchasers) $100,000,000 in aggregate principal amount of its Limited
Recourse Notes (the Original Notes and, together with, unless the context otherwise requires, any Additional Notes, the Notes). The principal amount of Original Notes to be purchased by the Purchasers pursuant
to this Agreement is set forth opposite the Purchasers name in Schedule 1. Each Note shall be substantially in the form set forth in Exhibit B.
The Notes will be secured in favor of Oberland Capital SA Zermatt LLC, as collateral agent (the Collateral Agent) for the
benefit of the Secured Parties, by a continuing first priority security interest in the Collection Account and the other Collateral, pursuant to that certain pledge and security agreement between the Issuer and the Collateral Agent dated as of the
Closing Date (the Pledge Agreement). The Collateral Agent will administer the Collection Account and cause monies to be distributed to the Noteholders out of the Collection Account on each Payment Date in accordance with the terms
hereof.
The Notes will be offered and sold to the Purchasers in transactions exempt from the registration requirements of the Securities
Act.
ARTICLE II
RULES OF
CONSTRUCTION AND DEFINED TERMS
Section 2.1 Rules of Construction and Defined Terms. The rules of construction set forth
in Annex A shall apply to this Agreement and are hereby incorporated by reference into this Agreement as if set forth fully in this Agreement. Capitalized terms used but not otherwise defined in this Agreement shall have the respective
meanings given to such terms in Annex A, which is hereby incorporated by reference into this Agreement as if set forth fully in this Agreement.
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Portions of this Exhibit were omitted and have been filed separately with the Secretary of the Commission pursuant to the Companys application requesting confidential treatment under Rule 24b-2 of the Exchange Act;
[
***
] denotes omissions. |
ARTICLE III
SALE AND PURCHASE OF NOTES; FUNDING; NON-FUNDING PURCHASER; ADDITIONAL NOTES
Section 3.1 Sale and Purchase of Notes. On the basis of the representations and warranties contained in, and subject to the terms
and conditions of, this Agreement, the Issuer agrees to issue and sell to each Purchaser, and each Purchaser severally agrees to purchase, the principal amount of Original Notes set forth opposite such Purchasers name on Schedule 1 or on
such Purchasers Purchaser Addendum, as applicable, at a purchase price equal to 100% of such principal amount (collectively, the Price).
Section 3.2 Additional Notes.
(a) Within fifteen days after the FDA Approval Date, the Issuer may irrevocably elect to issue and sell to the Purchasers $15,000,000
principal amount of Limited Recourse Notes (the Additional Notes). On the basis of the representations and warranties contained in, and subject to the terms and conditions of, this Agreement, each Purchaser severally agrees to
purchase the principal amount of Additional Notes set forth opposite such Purchasers name on Schedule 1 or on such Purchasers Purchaser Addendum, as applicable, at a purchase price equal to 100% of such principal amount.
(b) Any Additional Notes issued shall have the same terms as the Original Notes, except that the issuance date may vary with respect to
such Additional Notes.
(c) The Original Notes and any Additional Notes shall be treated as a single class for all purposes, including
exercise of remedies, waivers and amendments, and shall rank on a parity basis in right of payment and security; provided, however, that if any Additional Notes are not issued as part of a qualified reopening of the Original Notes, such
Additional Notes will be required to have a CUSIP number that is different than the CUSIP number of the Original Notes and, therefore, will not be fungible with the Original Notes for U.S. federal income tax purposes.
Section 3.3 The Closings. The sale and purchase of the Notes hereunder shall occur at the offices of Cooley LLP, 101 California
Street, San Francisco, California 94111 or at such other place as Parent, the Issuer and Purchasers may mutually agree, at a closing (each, a Closing) on the applicable Closing Date. At each Closing, the Issuer will deliver to
each Purchaser the Notes to be purchased by such Purchaser in the form of a single Note (or such greater number of Notes in denominations of at least $250,000 face amount) dated the date of the applicable Closing and registered in such
Purchasers name (or in the name of its nominee), against delivery by such Purchaser to the Issuer or its order of immediately available funds in accordance with wire instructions provided by the Issuer. If, at the Closing, the Issuer shall
fail to tender its Notes to any Purchaser or any of the conditions specified in Article VI applicable to such Closing shall not have been fulfilled or waived, such Purchaser shall, at its election, be relieved of all further obligations under its
related Agreement.
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Portions of this Exhibit were omitted and have been filed separately with the Secretary of the Commission pursuant to the Companys application requesting confidential treatment under Rule 24b-2 of the Exchange Act;
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ARTICLE IV
REPRESENTATIONS, WARRANTIES AND AGREEMENTS OF THE PURCHASERS
Each Purchaser agrees and acknowledges, jointly and not severally, that the Issuer and its counsel may rely upon the accuracy and performance
of the representations, warranties and agreements of such Purchaser contained in this Article IV.
Section 4.1 Purchase for
Investment and Restrictions on Resales. Each Purchaser:
(a) acknowledges that the Notes have not been and the Notes will not be
registered under the Securities Act or the Applicable Law of any applicable state or other jurisdiction relating to securities matters and may not be offered, sold, pledged or otherwise transferred except as set forth herein and in the legend set
forth on the Notes regarding transfers;
(b) agrees that, if it should resell or otherwise transfer the Notes, in whole or in part, it
will do so only pursuant to an exemption from, or in a transaction not subject to, registration under the Securities Act, the Applicable Law of any applicable state or other jurisdiction relating to securities matters and the respective rules and
regulations promulgated under any of the foregoing and consistent with the provisions of this Agreement, and only to (i) the Issuer or a Guarantor, (ii) a Person that the Purchaser reasonably believes, at the time any buy order for such
Notes is originated, is a QIB or an Institutional Accredited Investor that purchases for its own account or for the account of a QIB or an Institutional Accredited Investor, to which notice is given that the transfer is being made in reliance on an
exemption from registration under the Securities Act, or (iii) such other Person consented to by the Issuer in the Issuers discretion, which consent shall not be unreasonably withheld, conditioned or delayed; provided that with respect to
this clause (iii), the Issuer may require a written opinion of legal counsel who shall, and whose legal opinion shall, be reasonably satisfactory to the Issuer, addressed to the Issuer, to the effect that the proposed transaction may be effected
without registration under the Securities Act;
(c) agrees that it will give to each Person to which it transfers the Notes, in whole or
in part, notice of the restrictions on transfer of the Notes;
(d) acknowledges the restrictions and requirements applicable to transfers
of the Notes contained herein and in the legend set forth on the Notes regarding transfers and agrees that it will only offer, sell or otherwise transfer the Notes in accordance with such restrictions and requirements; and
(e) represents that it is purchasing the Notes for investment purposes and not with a view to resale or distribution thereof in contravention
of the requirements of the Securities Act.
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Portions of this Exhibit were omitted and have been filed separately with the Secretary of the Commission pursuant to the Companys application requesting confidential treatment under Rule 24b-2 of the Exchange Act;
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Section 4.2 QIB; Institutional Accredited Investor. Each Purchaser represents and
warrants that it is a QIB or an Institutional Accredited Investor and is purchasing the Notes for its own account.
Section 4.3
Due Diligence. Each Purchaser acknowledges that (a) it has made, either alone or together with its advisors, such independent investigation of the Issuer and its management, assets and related matters as such Purchaser deems to be, or
such advisors have advised to be, necessary or advisable in connection with the purchase of the Notes pursuant to the transactions contemplated by this Agreement, (b) it and its advisors have received all information and data that it and such
advisors believe to be necessary in order to reach an informed decision as to the advisability of the purchase of the Notes pursuant to the transactions contemplated by this Agreement, (c) it understands the nature of the potential risks and
potential rewards of the purchase of the Notes, (d) it is a sophisticated investor with investment experience and has the ability to bear complete loss of its investment, whether as a result of a Default or an Event of Default or any
insolvency, liquidation or winding up of the Issuer or otherwise and (e) it has such knowledge and experience in financial and business matters that it is capable of evaluating the merits and risks of purchasing the Notes and can bear the
economic risks of investing in the Notes for an indefinite period of time. Each Purchaser acknowledges that it has obtained its own attorneys, business advisors and tax advisors as to legal, business and tax advice (or has decided not to obtain such
advice) and has not relied on the Issuer for such advice. Except for (x) the representations, warranties and covenants made by the Note Parties in this Agreement and the other Operative Documents and (y) the legal opinions provided to the
Purchasers in connection with the transactions contemplated by the Operative Documents, each Purchaser is relying on its own investigation and analysis in entering into the transactions contemplated hereby.
Section 4.4 Organization. Each Purchaser is an entity duly organized and validly existing in good standing under the laws of its
jurisdiction of organization.
Section 4.5 Authorization. Each Purchaser has all necessary corporate or other power and
authority to execute and deliver this Agreement and the other Operative Documents to which it is a party, to perform its obligations hereunder and thereunder and to consummate the transactions contemplated hereby and thereby. The execution and
delivery of each of the Operative Documents to which it is a party and the performance by such Purchaser of its obligations hereunder and thereunder have been duly authorized by such Purchaser. Each of the Operative Documents to which it is a party
has been duly executed and delivered by such Purchaser. Each of the Operative Documents, assuming the valid execution and delivery by the Note Parties, constitutes the legal, valid and binding obligation of such Purchaser, enforceable against such
Purchaser, as applicable, in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors rights generally, general equitable principles and principles of public
policy.
Section 4.6 Enforceability of this Agreement. This Agreement has been duly authorized, executed and delivered by the
Purchasers and constitutes the valid, legally binding
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Portions of this Exhibit were omitted and have been filed separately with the Secretary of the Commission pursuant to the Companys application requesting confidential treatment under Rule 24b-2 of the Exchange Act;
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and (subject to general equitable principles, insolvency, liquidation, reorganization and other Applicable Law of general application relating to creditors rights) enforceable agreement of
the Purchasers.
Section 4.7 Sufficient Funds. Each Purchaser has sufficient funds or access to sufficient funds (whether by
virtue of rights to call capital, loan arrangements or otherwise) to purchase the Original Notes it is purchasing hereunder and any Additional Notes it may be obligated to purchase hereunder.
Section 4.8 Tax Matters. Each Purchaser acknowledges that, for U.S. federal income tax purposes, unless required by a final
determination within the meaning of Section 1313(a) of the Code, it agrees to treat (1) the Notes as indebtedness issued with original issue discount within the meaning of Section 1273(a) of the Code, and not as a
contingent payment debt instruments for U.S. federal income tax purposes, and (2) any interest and original issue discount as portfolio interest within the meaning of Section 871(h) and 881(c) of the Code.
ARTICLE V
REPRESENTATIONS AND
WARRANTIES OF THE NOTE PARTIES
The Note Parties represent and warrant to the Purchasers as of the date hereof as follows, except as
set forth in the Disclosure Letter delivered by the Issuer to the Purchasers as of the date hereof, which exceptions shall be deemed to be representations and warranties as if made hereunder, as follows:
Section 5.1 Securities Laws.
(a) No securities of the same class (within the meaning of Rule 144A(d)(3)(i) under the Securities Act) as the Notes have been issued and sold
by the Note Parties within the six- month period immediately prior to the date hereof. The Notes are securities within the meaning of the Securities Act.
(b) Assuming the accuracy of the representations and warranties of the Purchasers in this Agreement, neither any Note Party nor any affiliate
(as defined in Rule 144 under the Securities Act) of any Note Party has directly, or through any agent, (i) sold, offered for sale, solicited offers to buy or otherwise negotiated in respect of any security (as defined in the Securities Act)
that is or will be integrated with the sale of the Notes in a manner that would require the registration under the Securities Act of the Notes or (ii) engaged in any form of general solicitation or general advertising (as those terms are used
in Regulation D under the Securities Act) in connection with the offering of the Notes or in any manner involving a public offering within the meaning of Section 4(a)(2) of the Securities Act, including publication or release of articles,
notices or other communications published in any newspaper, magazine or similar medium or broadcast over television or radio, or any seminar or meeting whose attendees have been invited by any general solicitation or general advertising.
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Portions of this Exhibit were omitted and have been filed separately with the Secretary of the Commission pursuant to the Companys application requesting confidential treatment under Rule 24b-2 of the Exchange Act;
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(c) Assuming the accuracy of the representations and warranties of the Purchasers in this
Agreement, no indenture is required to be qualified under the Trust Indenture Act.
(d) Assuming the accuracy of the representations and
warranties of the Purchasers in this Agreement, no registration under the Securities Act of the Notes is required for the issuance and sale of the Notes to the Purchasers as contemplated by this Agreement.
Section 5.2 Investment Company Act. None of the Note Parties is an investment company within the meaning of the
Investment Company Act, is required to be registered as an investment company or is controlled by an entity required to be registered as an investment company.
Section 5.3 Governmental and Third Party Authorizations. No consent, approval, order or authorization of, or registration,
qualification, designation, declaration, notice or filing with, any Governmental Authority or other Person on the part of the Issuer or any other Note Party is required in connection with the conversion of the Issuer into a Delaware limited
liability company, the execution or delivery of, or performance of obligations by, the Note Parties under, the Operative Documents or the transactions contemplated hereby or thereby (including under any of the Applicable Agreements), except for
(i) such filings as may be necessary to secure exemption of the offer and sale of the Notes, (ii) the Payment Instructions, (iii) any filing required to be made by Parent with the Securities and Exchange Commission, (iv) any
filing of financing statements under the UCC and (v) such filings that have been made on or prior to the date hereof.
Section 5.4 Use of Proceeds; Margin Regulations. The proceeds from the sale of the Notes will be used by the Issuer as set forth
in Section 9.9. No part of the proceeds from the sale of the Notes hereunder will be used, directly or indirectly, for the purpose of buying or carrying any margin stock within the meaning of Regulation U of the Board of Governors of the
Federal Reserve System (12 CFR 221), or for the purpose of buying or carrying or trading in any securities under such circumstances as to involve any Note Party in a violation of Regulation X of said Board (12 CFR 224) or to involve any broker or
dealer in a violation of Regulation T of said Board (12 CFR 220), and no Note Party is engaged in the business of extending credit for the purpose of buying or carrying margin stock within the meaning of Regulation U of said Board (12 CFR 221). As
used in this Section 5.4, the terms margin stock and purpose of buying or carrying shall have the meanings assigned to them in said Regulation U.
Section 5.5 Organization. Each Note Party (a) is a duly organized, validly existing and in good standing under the laws of
its jurisdiction of organization, (b) has all requisite corporate or other power and authority to carry on its business as now conducted and as proposed to be conducted, (c) is qualified to do business and is in good standing in all
jurisdictions in which the nature of the business conducted by it makes such qualification necessary and where failure so to qualify would reasonably be expected to result, individually or in the aggregate, in a Material Adverse Effect, and
(d) has full power, authority and legal right to make and perform its obligations under each of the Operative Documents to which it is a party and, in the case of the Issuer, to issue the Notes hereunder.
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Portions of this Exhibit were omitted and have been filed separately with the Secretary of the Commission pursuant to the Companys application requesting confidential treatment under Rule 24b-2 of the Exchange Act;
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Section 5.6 Authorization and Enforceability. All corporate action on the part of
each Note Party and its officers, directors and shareholders necessary for the creation, execution and issuance of the Notes and the Guarantees, the authorization, execution and delivery of the other Operative Documents and the performance of all
obligations of each such Note Party hereunder and thereunder has been taken or will be taken prior to the Closing. The Operative Documents, when executed and delivered, will be valid and legally binding obligations of each Note Party a party
thereto, enforceable in accordance with their respective terms, except as limited by applicable bankruptcy, insolvency, reorganization, moratorium and other Applicable Laws of general application affecting enforcement of creditors rights
generally and as limited by Applicable Laws relating to the availability of specific performance, injunctive relief or other equitable remedies.
Section 5.7 Capitalization. Issuer is a wholly owned Subsidiary of Parent. Set forth on Section 5.7 of the Disclosure Letter
is a complete and correct list of all Subsidiaries as of the date hereof and the ownership thereof. All outstanding shares of Capital Securities of the Subsidiaries are duly authorized, validly issued, fully paid and nonassessable (or the applicable
foreign or limited liability company agreement equivalent thereof).
Section 5.8 Subsidiaries. The Issuer does not presently
own or control, directly or indirectly, any interest in any corporation, partnership, trust, joint venture, limited liability company, association or other business entity. The Issuer is not a participant in any joint venture, partnership or similar
arrangement.
Section 5.9 Collateral. The Issuer is the exclusive owner of the Collateral (including the Royalties), free and
clear of all Liens, other than, in the case of the Initial Closing, Liens pursuant to the Revenue Interest Assignment Agreement, which shall be released or on prior to such Closing, and in the case of the Additional Closing, Permitted Encumbrances.
Except pursuant to the Revenue Interest Assignment Agreement, which shall have been terminated on or prior to the Initial Closing and all right, title and interest in the Royalties subject thereto shall have been irrevocably sold and transferred to
the Issuer on or prior to the Initial Closing, the Issuer has the right to grant a security interest in the Collateral pursuant to the Operative Documents. Except pursuant to the Revenue Interest Assignment Agreement, which shall have been
terminated on or prior to the Initial Closing, the Issuer has not assigned or pledged any of its right, title or interest in the Collateral to anyone other than the Collateral Agent.
Section 5.10 No Conflicts. The conversion of the Issuer into a Delaware limited liability company, the creation of the Notes and
the issuance, execution and delivery, and the compliance by the Note Parties with the terms, of the Notes or the Guarantees, as applicable, and each of the other Operative Documents to which it is a party, (i) do not at the Closing Date
conflict with, result in a breach of any of the terms or provisions of or constitute a default under (A) such Note Partys Organizational Documents, (B) the Applicable Agreements, or (C) any judgment, order or decree of any
Governmental Authority having jurisdiction over any Note
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Portions of this Exhibit were omitted and have been filed separately with the Secretary of the Commission pursuant to the Companys application requesting confidential treatment under Rule 24b-2 of the Exchange Act;
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Party, its assets or its properties or any Applicable Law, (ii) do not violate, or constitute a default under, any deed, indenture, agreement or other instrument or obligation to which any
Note Party or any Subsidiary is a party or by which it or any part of its assets, property or revenues are bound, and (iii) will not result in the creation, imposition, or acceleration of any indebtedness or tax, any Lien of any nature (other
than Permitted Liens) upon, or with respect to, any Note Party or any properties thereof or any Lien of any nature (other than Permitted Encumbrances of the type contemplated by clauses (i), (iii) and (iv) thereof), upon, or with respect
to the Collateral.
Section 5.11 Perfection. Upon (i) the execution and delivery of the Pledge Agreement by the Issuer
and the Collateral Agent, (ii) to the extent the security interests granted by the Pledge Agreement can be perfected by filing a financing statement under the UCC, the proper filing of financing statements with respect to the Collateral, and
(iii) entry into the Account Control Agreement, the security interests granted by the Pledge Agreement will constitute valid, perfected first priority liens and security interests in the Collateral for the benefit of the Collateral Agent and
the Noteholders, enforceable in accordance with the terms contained therein (subject solely to Permitted Encumbrances).
Section 5.12
No Proceedings. There is no claim, action, suit, proceeding, complaint or investigation pending or currently threatened against any Note Party, or any officer, director or employee of a Note Party arising out of their employment or board
relationship with such Note Party, that questions the validity of the Operative Documents, the right of the Note Parties to enter into the Operative Documents to which they are a party or to consummate the transactions contemplated hereby or
thereby, or that might result, either individually or in the aggregate, in a Material Adverse Effect, nor is any Note Party aware that there is reasonable basis for the foregoing. No Note Party is a party or subject to the provisions of any order,
writ, injunction, judgment or decree of any court or Governmental Authority or instrumentality, except, as of the Additional Closing, as would not reasonably be expected to result, individually or in the aggregate, in a Material Adverse Effect.
There is no claim, action, suit, proceeding, complaint or investigation by any Note Party currently pending or that such Note Party intends to initiate and that (x) could reasonably be expected to result, individually or in the aggregate, in a
Material Adverse Effect or (y) otherwise relates to the Royalties, the Products or the Applicable Agreements.
Section 5.13
No Defaults. On each Closing Date, there exists no Default or Event of Default nor, any event that, had the Notes already been issued, would constitute a Default or an Event of Default.
Section 5.14 Compliance with Applicable Law and Agreements. Except as set forth on Section 5.14 of the Disclosure Letter,
none of the Note Parties or any Subsidiary is in violation of or default under (a) any provision of any such Persons Organizational Documents, (b) any instrument, judgment, order, writ, decree, lease, agreement, contract, note,
indenture or mortgage to which it is a party or by which it is bound or (c) any provision of any Applicable Law, except in the case of clauses (b) and (c) as would not reasonably be expected to result, individually or in the
aggregate, in a Material Adverse Effect.
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Portions of this Exhibit were omitted and have been filed separately with the Secretary of the Commission pursuant to the Companys application requesting confidential treatment under Rule 24b-2 of the Exchange Act;
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Section 5.15 Financial Statements. The Parent has filed with the SEC (i) the
audited consolidated balance sheets of the Parent as of December 31, 2014 and 2013, in each case with the related statements of operations and comprehensive loss, cash flows and stockholders equity (deficit) for the fiscal years then
ended, together with the opinion of an independent certified public accounting firm thereon (ii) the unaudited consolidated balance sheet of the Parent as of June 30, 2015 (the Statement Date), in each case with the
related statements of operations and comprehensive loss and cash flows and, in the case of the Additional Closing, the financial statements required to be delivered pursuant to Section 7.1(c) (collectively, the Financial
Statements). The Financial Statements are complete and correct in all material respects and have been prepared in accordance with (x) the books and records of the Parent and the Subsidiaries and (y) GAAP applied on a consistent
basis throughout the periods indicated, except as disclosed therein, and present fairly in all material respects the consolidated financial condition and position of the Parent and its Subsidiaries as of the respective dates thereof, except that
unaudited Financial Statements may not contain all notes required by GAAP (the absence of which, if presented, would not differ materially from those included in the audited Financial Statements) and are subject to normal year-end audit adjustments,
the effect of which are not reasonably expected to have, individually or in the aggregate, a Material Adverse Effect. Except as set forth in the Financial Statements, no Note Party has any material liabilities, contingent or otherwise, other than
(i) liabilities incurred in the ordinary course of business subsequent to the Statement Date and (ii) obligations under contracts and commitments incurred in the ordinary course of business and not required under GAAP to be reflected in
the Financial Statements. Parent maintains and will continue to maintain a standard system of accounting established and administered in accordance with GAAP.
Section 5.16 Indebtedness. Section 5.16 of the Disclosure Letter sets forth a complete list of the outstanding Indebtedness
of the Parent and the Subsidiaries as of the Initial Closing Date (other than the Notes).
Section 5.17 Insurance. Each of the
Parent and its Subsidiaries has in full force and effect products liability, fire and casualty insurance policies and other insurance policies with financially sound and reputable insurance companies in such amounts and against such risks as are
customarily maintained by companies engaged in the same or similar business operating in the same or similar locations. None of the Parent or any of its Subsidiaries is in default with respect to its material obligations under any insurance policy
maintained by it, and none of the Parent or any of its Subsidiaries (once controlled by Parent) has been denied insurance coverage (except where a potential insurance provider declined to provide a coverage proposal).
Section 5.18 Agreements; Actions.
(a) Except for the Applicable Agreements and the Operative Documents, there are no contracts, agreements and instruments to which the Issuer
is a party or subject or by which it is bound that may involve (A) outstanding or future obligations (contingent or otherwise but excluding inchoate indemnification obligations under terminated or expired agreements) of or payments to the
Issuer in excess of $500,000, (B) the license of any Proprietary Right to or
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Portions of this Exhibit were omitted and have been filed separately with the Secretary of the Commission pursuant to the Companys application requesting confidential treatment under Rule 24b-2 of the Exchange Act;
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from the Issuer, (C) provisions restricting or, in any material respect, affecting the development, manufacture or distribution of products and services of the Issuer, or
(D) indemnification by the Issuer with respect to infringement of Proprietary Rights, except for those agreements disclosed on Schedule 5.18 of the Disclosure Letter.
(b) Except as would not reasonably be expected to result in, individually or in the aggregate, a Material Adverse Effect: (i) all
Material Contracts are valid, binding and enforceable in accordance with their respective terms (ii) the Parent and its Subsidiaries have performed all material obligations required to be performed by them and are not in default under or in
breach of nor in receipt of any claim of default or breach under any Material Contract, and none of the Parent or any of its Subsidiaries has any present expectation or intention of not fully performing all such obligations, (iii) to the
Knowledge of any Note Party, no event has occurred with which the passage of time or with the giving of notice or both would result in default, breach or event of noncompliance by the Parent or any of its Subsidiaries under any contract, agreement
or instrument, and (iv) no Note Party has any Knowledge of any breach or anticipated breach by the other parties to any such contract, agreement or commitment.
(c) None of the Parent or any of its Subsidiaries is a party to or bound by any contract, agreement or instrument, or subject to any
restriction under its Organizational Documents, that would reasonably be expected to result in a Material Adverse Effect.
Section 5.19 Intellectual Property.
(a) Each of the Parent and its Subsidiaries owns or possesses sufficient legal rights to Proprietary Rights necessary for its business as now
conducted and as proposed to be conducted without any conflict with, or infringement of, the rights of others, except as could not reasonably be expected to result, individually or in the aggregate, in a Material Adverse Effect.
(b) Section 5.19 of the Disclosure Letter sets forth an accurate and complete list of all Licensed Patent Rights that are granted and
currently in force, the claims of which cover any of (i) the vaccine currently designated as Mosquirix (RTS,S), that is currently being developed by Counterparty for malaria, or (ii) the vaccine currently designated as Shingrix (HZ/su),
that is currently being developed by Counterparty for shingles (herpes zosters) (including all Licensed Patent Rights required to be set forth in Section 5.19 of the Disclosure Letter, the Applicable Patent Rights) and, for
each of the patents included in the Applicable Patent Rights listed on Section 5.19 of the Disclosure Letter, (i) the countries in which such patents are issued, (ii) the patent number, and (iii) the expected expiration date of
the issued patents. There are no pending patent applications included in the Licensed Patent Rights. To the Knowledge of any Note Party, each of the issued patents included in the Applicable Patent Rights is valid and enforceable. The Issuer is the
exclusive owner of each of the Applicable Patent Rights free and clear of all Liens, (A) other than Liens involving licenses to any of the Applicable Patent Rights for products other than the Products that would not result in a Material Adverse
Effect and (B) except as provided in the License Agreement. To the Knowledge of any Note Party, there are no unpaid maintenance or renewal fees payable by the Issuer to any Person that are currently and finally overdue for any of the Applicable
Patent Rights. To the Knowledge
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Portions of this Exhibit were omitted and have been filed separately with the Secretary of the Commission pursuant to the Companys application requesting confidential treatment under Rule 24b-2 of the Exchange Act;
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of any Note Party, no issued Applicable Patent Rights have lapsed or been abandoned, cancelled or expired except in the ordinary course. To the Knowledge of any Note Party, each individual
associated with the filing and prosecution of the Applicable Patent Rights, including the named inventors of the Applicable Patent Rights, has complied in all material respects with all applicable duties of candor and good faith in dealing with any
applicable Governmental Authority, including any duty to disclose to any Governmental Authority all information known to be material to the patentability of each of the Applicable Patent Rights, in those jurisdictions where such duties exist. There
is no pending or, to the Knowledge of any Note Party, threatened (in writing) opposition, interference, reexamination, injunction, claim, lawsuit, proceeding, hearing, investigation, complaint, arbitration, mediation, demand, International Trade
Commission investigation, decree, or any other dispute, disagreement, or claim (each, a Dispute and collectively, the Disputes), challenging the legality, validity, enforceability or ownership of any of the
Applicable Patent Rights. The Issuer has not received any notice pursuant to Section 11.3 of the License Agreement or involving any of the matters described in Section 11.4 of the License Agreement. To the Knowledge of any Note Party,
there is no pending or threatened action, suit, or proceeding, or any investigation or claim by any Person or Governmental Authority to which the Issuer or to which Counterparty is a party that claims that the Applicable Patent Rights or the
development, marketing, sale or distribution of any of the Products by Counterparty pursuant to the License Agreement and the Manufacturing Agreement do or will infringe on any patent or other intellectual property rights of any other Person. To the
Knowledge of any Note Party, no Person is infringing, misappropriating or making any unauthorized use of any of the Applicable Patent Rights. There is no pending, or, to the Knowledge of any Note Party, threatened action, suit, or proceeding, or any
investigation or claim, by the Issuer or, to the Knowledge of any Note Party, Counterparty against any Person in relation to the Applicable Patent Rights.
Section 5.20 Taxes. Each Note Party has timely filed all U.S. federal income and other material Tax returns and reports as
required by Applicable Law (taking into account any applicable extensions), and such returns and reports are true and correct in all material respects. Each Note Party paid all U.S. federal income and other material state, county, local or foreign
Taxes and other assessments due or, if not yet payable, has adequately accounted for them on its books and records. There are no actual or proposed (in writing) material Tax deficiencies, assessments or adjustments with respect to such Note Parties
or any assets or operations of such Note Parties. No consent has been given with respect to the Parent or any Subsidiary to extend the time in which any Tax may be assessed or collected by any taxing authority, other than pursuant to extensions of
time to file tax returns obtained in the ordinary course of business. There have been no, and there are no ongoing or pending Tax audits by any taxing authority against the Note Parties or any Subsidiary.
Section 5.21 Solvency. The Note Parties have determined, and by virtue of their entering into the transactions contemplated hereby
and their authorization, execution and delivery of the Operative Documents to which they are a party, that their aggregate incurrence of indebtedness and any other liabilities hereunder or thereunder or contemplated hereby or thereby (a) does
not leave the aggregate fair saleable value of their assets less than the aggregate sum of
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Portions of this Exhibit were omitted and have been filed separately with the Secretary of the Commission pursuant to the Companys application requesting confidential treatment under Rule 24b-2 of the Exchange Act;
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their debts, liabilities and other obligations, including contingent liabilities, (b) does not leave the aggregate present fair saleable value of their assets less than the aggregate amount
that would be required to pay their probable liabilities on their existing debts, liabilities and other obligations, including contingent liabilities, as they become absolute and matured, (c) does not leave them unable to realize upon their
aggregate assets and pay their aggregate debts, liabilities and other obligations, including contingent obligations, as such debts, liabilities and other obligations mature, (d) does not leave them, in the aggregate, with unreasonably small
capital with which to engage in their business or unable to pay their debts as such debts mature, (e) will not cause them to become subject to any Voluntary Bankruptcy or Involuntary Bankruptcy and (f) will not render them insolvent within
the meaning of Section 101(32) of Title 11 of the United States Code. The Issuer has determined, and by virtue of its entering into the transactions contemplated hereby and its authorization, execution and delivery of the Operative Documents to
which it is a party, that its incurrence of indebtedness and any other liability hereunder or thereunder or contemplated hereby or thereby (a) does not leave the fair saleable value of its assets less than the sum of its debts, liabilities and
other obligations, including contingent liabilities, (b) does not leave the present fair saleable value of its assets less than the amount that would be required to pay its probable liabilities on its existing debts, liabilities and other
obligations, including contingent liabilities, as they become absolute and matured, (c) does not leave it unable to realize upon its assets and pay its debts, liabilities and other obligations, including contingent obligations, as they mature,
(d) does not leave it with unreasonably small capital with which to engage in its business or unable to pay its debts as they mature, (e) will not cause it to become subject to any Voluntary Bankruptcy or Involuntary Bankruptcy and
(f) will not render it insolvent within the meaning of Section 101(32) of Title 11 of the United States Code. None of the Note Parties has incurred or has present plans or intentions to incur debts or other obligations or liabilities
beyond its ability to pay such debts or other obligations or liabilities as they become absolute and matured. No step has been taken or is intended by any Note Party or, so far as it is aware, any other Person for the winding-up, liquidation,
dissolution, administration, merger or consolidation or for the appointment of a receiver or administrator of such Note Party or all or any of its assets.
Section 5.22 ERISA.
(a) The Parent and each member of the Controlled Group have fulfilled their obligations under the minimum funding standards of ERISA and the
Code with respect to each Plan. The Parent and each member of the Controlled Group are in compliance in all respects with the presently applicable provisions of ERISA and the Code, and have not incurred any liability to the PBGC or a Plan under
Title IV of ERISA, except as would not reasonably be expected to result, individually or in the aggregate, in a Material Adverse Effect.
(b) Neither the Parent nor any member of the Controlled Group has incurred any withdrawal liability with respect to any Multiemployer Plan
under Title IV of ERISA, and no such liability is expected to be incurred.
(c) Neither the Parent nor any member of the Controlled Group
has participated in a prohibited transaction, as defined in Section 406 of ERISA or Section 4975(c) of the Code, which is reasonably expected to subject either the Parent or a member of the Controlled Group to any civil penalty under ERISA
or material tax under the Code, except as would not reasonably be expected to result, individually or in the aggregate, in a Material Adverse Effect.
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Portions of this Exhibit were omitted and have been filed separately with the Secretary of the Commission pursuant to the Companys application requesting confidential treatment under Rule 24b-2 of the Exchange Act;
[
***
] denotes omissions. |
Section 5.23 Labor Relations. None of the Parent or any Subsidiary is engaged in any
unfair labor practice within the meaning of the National Labor Relations Act of 1947, except as would not reasonably be expected to result, individually or in the aggregate, in a Material Adverse Effect. There is (i) no unfair labor practice
complaint before the National Labor Relations Board, or grievance or arbitration proceeding arising out of or under any collective bargaining agreement, pending or, to the Knowledge of any Note Party, threatened, against Parent or any Subsidiary;
(ii) no strike, lockout, slowdown, stoppage, walkout or other labor dispute pending or, to the Knowledge of any Note Party, threatened, against Parent or any Subsidiary; (iii) to the Knowledge of any Note Party, no petition for
certification or union election or union organizing activities taking place with respect to Parent or any Subsidiary; and (iv) no collective bargaining agreement or Multiemployer Plan covering the employees of Parent or any Subsidiary.
Section 5.24 Environmental and Safety Laws. To its Knowledge, each Note Party, the operation of its business and any real property
that the it owns, leases or otherwise occupies (the Premises) is and has been in material compliance with all Applicable Laws relating to the environment or occupational health and safety, except as would not reasonably be
expected to result, individually or in the aggregate, in a Material Adverse Effect. None of the Parent or any Subsidiary has received any citation, directive, letter or other communication, written or oral, or any notice of any proceeding, claim or
lawsuit, from any Person relating to the environment or occupational health and safety of the Premises, and none of the Note Parties is aware of any basis therefor. To the Knowledge of any Note Party, no material expenditures are or will be required
in order to comply with any such existing Applicable Law relating to the environment or occupational health and safety, except as would not reasonably be expected to result, individually or in the aggregate, in a Material Adverse Effect.
Section 5.25 Disclosure. None of this Agreement, the other Operative Documents or any other statements or certificates made or
delivered in connection herewith or therewith or the Parents annual report on Form 10-K for the year ended December 31, 2014, as supplemented by the current report on Form 10-Q for the quarter ended June 30, 2015, contains any untrue
statement of a material fact or omits to state a material fact necessary in order to make the statements herein or therein not misleading.
Section 5.26 Products; Royalties.
(a) Counterparty has been responsible for the clinical development of each of the Products and seeking all applicable regulatory approvals
from applicable Regulatory Authorities for each of the Products and, except as contemplated in Section 2.4(a) of the
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Portions of this Exhibit were omitted and have been filed separately with the Secretary of the Commission pursuant to the Companys application requesting confidential treatment under Rule 24b-2 of the Exchange Act;
[
***
] denotes omissions. |
Manufacturing Agreement and Section 5.7 and 5.8 of the License Agreement, the Issuer has no responsibility for the development of any of the Products or seeking any regulatory approvals from
any Regulatory Authorities for any of the Products.
(b) To the Knowledge of any Note Party, Counterparty has complied with its
obligations to develop the Products and seek and obtain regulatory approvals from applicable Regulatory Authorities for the Products under the License Agreement. The Issuer has not provided any notice at any time in accordance with
Section 12.12 of the License Agreement to Counterparty under Section 5.3 of the License Agreement relating to any of the Products.
(c) Counterparty has been, and continues to be, responsible for the manufacturing of the Products and the Issuer has no further responsibility
for manufacturing the Products.
(d) Each Product is a prophylactic QS-21 Vaccine under the Manufacturing Agreement under clause
(ii) of the definition of QS-21 Vaccine as set forth in the Negotiation Agreement (which amended the definition thereof in the Manufacturing Agreement). Each Product is a [
***
] under the License Agreement.
(e) Neither (i) the [
***
] of the License Agreement, nor (ii) the fact that the [
***
] or [
***
] of
any [
***
] by [
***
], in the absence of the [
***
] granted to [
***
] under the License Agreement, does not currently or may not in the future [
***
] one or more [
***
] of the
[
***
], shall result in any Product not being a [
***
].
(f) Other than the Applicable Agreements and the Operative
Documents, as of each Closing, neither the Issuer nor any of its Affiliates shall have entered into, be a party to, or otherwise subject to any agreement, contract, instrument or other binding obligation that in any way relates to or involves the
Royalties or the Products (which, for purposes of clarity, the Parties acknowledge and agree shall not include any agreement, contract, instrument or other binding obligation that relates to QS-21 but does not otherwise relate to or involve the
Royalties or the Products and shall not include any expired material transfer, research or similar agreement or contract manufacturing or similar agreement relating to or involving the Royalties or the Products where the assignment or sublicense of
all Proprietary Rights thereunder relating to the Products has expired or been terminated and no amounts are payable to the applicable counterparty based on sales of any Product (Expired MTA and CMO Agreements)).
(g) Royalties under Section 5.3 of the Manufacturing Agreement equal to 2% of Net Sales of the Products are, subject to Section 4 of
the Negotiation Agreement and Section 6.4 and Section 6.6 of the Manufacturing Agreement, payable by Counterparty. Such Royalties under Section 5.3 of the Manufacturing Agreement are payable by Counterparty for ten years after the
First Commercial Sale of the first QS-21 Vaccine that achieves First Commercial Sale in a Major Market Country regardless of any [
***
] of the License Agreement or Manufacturing Agreement or any Licensed Patent Rights prior to the end of
such ten-year period. Counterpartys MAGE-A3 vaccine is a therapeutic QS-21 Vaccine under the Manufacturing Agreement. Based upon reasonable estimates for obtaining Marketing
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Portions of this Exhibit were omitted and have been filed separately with the Secretary of the Commission pursuant to the Companys application requesting confidential treatment under Rule 24b-2 of the Exchange Act;
[
***
] denotes omissions. |
Authorization following the most recently completed pivotal trial of each of the Products, to the Knowledge of any Note Party, Counterparty and its Affiliates are not developing any prophylactic
QS-21 Vaccine under the Manufacturing Agreement that would reasonably be expected to have a date of First Commercial Sale prior to date of the First Commercial Sale of any Product.
(h) To the Knowledge of any Note Party, at the Initial Closing Date, neither Counterparty nor any of its Affiliates is developing or
commercializing (i) any product candidates or products for shingles (herpes zoster) or malaria other than the [
***
] or (ii) any other product candidates or products that would qualify as [
***
].
(i) Since September 4, 2012, to the Knowledge of any Note Party, the Applicable Agreement Parties have not received any information from
Counterparty, any Governmental Authority or any other Person, whether directly or indirectly and through any form of written, oral or digital communication and whether or not under any of the express provisions of any Applicable Agreement (including
pursuant to any joint steering committee meeting or the meeting of any other organized body provided for under any Applicable Agreement) relating to any of the Products (including any of the clinical trials for any of the Products or any of the
studies related to those clinical trials) or any Marketing Authorization for any of the Products or, with respect to any Malaria Product, the process for approval, endorsement or recommendation of such Product by the World Health Organization or any
similar or related Person, that would reasonably be expected to result in a Material Adverse Effect.
Section 5.27 Applicable
Agreements.
(a) The Issuer has provided to Collateral Agent an accurate and complete copy of each of the Applicable Agreements.
(b) Each of the Applicable Agreements is in full force and effect, and immediately following each Closing, each of the Applicable Agreements
will continue immediately after each Closing in full force and effect, without modification, and each is, and immediately after each Closing, shall remain, the legal, valid and binding obligation of the Issuer, Parent (to the extent applicable) and
Counterparty, enforceable against the Issuer, Parent (to the extent applicable) and Counterparty in accordance with its respective terms, subject, as to enforcement of remedies, to bankruptcy, insolvency, reorganization, moratorium or similar laws
affecting creditors rights generally, the UCC, and general equitable principles. The execution, delivery and performance of each of the Applicable Agreements were and are within the corporate powers of the Issuer, Parent (to the extent
applicable) and Counterparty. Each of the Applicable Agreements was duly authorized by all necessary action on the part of, and validly executed and delivered by, the Issuer, Parent (to the extent applicable) and Counterparty. There is no material
breach or default (including any breach or default that, if uncured, would provide the other party with a basis to terminate any of the Applicable Agreements), or event which upon notice or the passage of time, or both, reasonably would be expected
to give rise to any material breach or default (including any breach or default that, if uncured, would provide the other party
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Portions of this Exhibit were omitted and have been filed separately with the Secretary of the Commission pursuant to the Companys application requesting confidential treatment under Rule 24b-2 of the Exchange Act;
[
***
] denotes omissions. |
with a basis to terminate any of the Applicable Agreements), in the performance of any of the Applicable Agreements by the Issuer or Parent, and, to the Knowledge of any Note Party, there is no
material breach or default (including any breach or default that, if uncured, would provide the other party with a basis to terminate any of the Applicable Agreements), or event which upon notice or the passage of time, or both, reasonably would be
expected to give rise to any material breach or default (including any breach or default that, if uncured, would provide the other party with a basis to terminate any of the Applicable Agreements), in the performance of any of the Applicable
Agreements by Counterparty.
(c) Neither the Issuer nor Parent has received any notice from Counterparty or any of its Affiliates of any
alleged breach or default by either the Issuer or Parent of any of the Applicable Agreements or any other agreements or contracts to which the Issuer or any of its Affiliates and Counterparty or any of its Affiliates are parties, or of
Counterpartys intention to terminate any of the Applicable Agreements in whole or in part. There are no existing disputes among the Issuer or any of its Affiliates, on the one hand, and Counterparty or any of its Affiliates, on the other hand,
under any of the Applicable Agreements or any other agreements or contracts to which the Issuer or any of its Affiliates and Counterparty or any of its Affiliates are parties.
(d) Except pursuant to the Ingalls Agreements, the Assignment and Assumption Agreement or as set forth on Section 5.27(d) of the
Disclosure Letter, neither the Issuer nor Parent has assigned or sublicensed any of its rights or obligations under any of the Applicable Agreements, except in connection with Expired MTA and CMO Agreements. Neither the Issuer nor any of its
Affiliates has created or permitted to exist any, and there are no, Liens on any of their respective rights or obligations under any of the Applicable Agreements (other than the rights of the counterparties to the Applicable Agreements, Liens
discharged in advance of the Initial Closing Date and other than Permitted Encumbrances).
(e) Except as provided in Section 4 of the
Negotiation Agreement, neither the Issuer nor any of its Affiliates is a party to any agreement providing for or permitting a sharing of, reduction in, deduction or withholding against, crediting against, set-off against or rescission or defense
against, and no Person [
***
] is otherwise entitled to effect a sharing of, reduction in, deduction or withholding against, crediting against, set-off against or rescission or defense against the Royalties (whether under any of the
[
***
] or otherwise).
(f) The Issuer has no currently due [
***
] obligations under the Applicable Agreements, other
than obligations to
[
***
] as set forth in the Applicable Agreements.
(g) As of the Initial Closing Date, to the Knowledge
of any Note Party (without inquiry), Counterparty has not [
***
] any of its rights or obligations under any of the Applicable Agreements, except in connection with [
***
].
(h) Neither the Issuer nor any of its Affiliates has outlicensed, assigned or otherwise provided to any Person (other than the Counterparty
pursuant to the Applicable
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Portions of this Exhibit were omitted and have been filed separately with the Secretary of the Commission pursuant to the Companys application requesting confidential treatment under Rule 24b-2 of the Exchange Act;
[
***
] denotes omissions. |
Agreements) any Proprietary Rights relating to QS-21 for the development or commercialization of any product candidates for shingles (herpes zoster) or malaria or any products for shingles
(herpes zoster) or malaria, except in connection with Expired MTA and CMO Agreements.
(i) As of the Initial Closing Date, no First
Commercial Sale has occurred under the Manufacturing Agreement.
Section 5.28 Title to Other Property and Assets. Except as
set forth in Section 2.1 of the Pledge Agreement, as of the Initial Closing Date, each of the Parent and the Subsidiaries owns its property and assets (other than the Collateral) free and clear of all Liens securing Indebtedness, except for
Permitted Liens. With respect to the property and assets it leases, each of the Parent and the Subsidiaries is in compliance with such leases and, to the Knowledge of any Note Party, holds a valid leasehold interest free of any Liens, except as
would not reasonably be expected to result, individually or in the aggregate, in a Material Adverse Effect. The Issuer does not own any real property and, as of the Initial Closing Date, none of the Parent or any of the other Subsidiaries owns any
real property.
Section 5.29 Permits. Each of the Parent and the Subsidiaries has all franchises, permits, licenses and any
similar authority necessary for the conduct of its business as now being conducted by it and the Parent believes that it or the Subsidiaries can obtain, without undue burden or expense, any similar authority for the conduct of its, or any
Subsidiarys, business as planned to be conducted, except as would not reasonably be expected to result, individually or in the aggregate, in a Material Adverse Effect. None of the Parent or any Subsidiary is in default in any material respect
under any of such franchises, permits, licenses or other similar authority, except as could not reasonably be expected to result, individually or in the aggregate, in a Material Adverse Effect.
Section 5.30 Brokers. Except for Exigo Capital Corp. and Kratos Group, LLC, none of the Note Parties has incurred, and will not
incur, any liability for brokerage or finders fees or agents commissions or any similar charges in connection with the Agreements or the other Operative Documents. The Purchasers will not incur any liability for brokerage or
finders fees or agents commission or similar charges payable to any brokers, agents, finders or other Persons engaged by any of the Note Parties.
Section 5.31 Changes. Since December 31, 2014, there has not been a Material Adverse Effect.
Section 5.32 FIRPTA Compliance. Neither the Parent nor the Issuer is or has ever been a United States real property holding
corporation, as defined in Section 897(c)(2) of the Code and U.S. Treasury Regulations Section 1.897-2(b).
Section 5.33 No Bad Actors. None of the Parent, any predecessor of the Parent, any affiliated issuer of the Parent, any other Note
Party, any executive officer, other officer participating in the offering of the Notes or director of the Parent or any Note Party, any beneficial owner of 20% or more of the Parents outstanding Voting Securities, calculated on the
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Portions of this Exhibit were omitted and have been filed separately with the Secretary of the Commission pursuant to the Companys application requesting confidential treatment under Rule 24b-2 of the Exchange Act;
[
***
] denotes omissions. |
basis of voting power, any promoter connected with the Parent in any capacity at the time of the sale of Notes, any Person that has been or will be paid (directly or indirectly) remuneration for
solicitation of purchasers in connection with the sale of Notes in the offering of the Notes, any general partner or managing member of any such solicitor or any executive officer, other officer participating in the offering of the Notes or director
of any such solicitor or general partner or managing member of such solicitor has been convicted of any of the felonies or misdemeanors or has been subject to any of the orders, judgments, decrees or other conditions set forth in Rule 506(d) under
the Securities Act.
Section 5.34 OFAC; Anti-Terrorism Laws.
(a) None of the Note Parties or any Affiliate of the Note Parties (i) is a Sanctioned Person, (ii) has any assets in Sanctioned
Countries or (iii) derives any of its operating income from investments in, or transactions with, Sanctioned Persons or Sanctioned Countries. No part of the proceeds of any Note hereunder will be used directly or indirectly to fund any
operations in, finance any investments or activities in or make any payments to, a Sanctioned Person or a Sanctioned Country.
(b) Each of
the Parent and the Subsidiaries is in compliance in all material respects with the PATRIOT Act. No part of the proceeds of the Notes hereunder will be used, directly or indirectly, for any payments to any governmental official or employee, political
party, official of a political party, candidate for political office, or anyone else acting in an official capacity, in order to obtain, retain or direct business or obtain any improper advantage, in violation of the United States Foreign Corrupt
Practices Act of 1977.
ARTICLE VI
CONDITIONS PRECEDENT TO THE CLOSINGS
Section 6.1 Conditions Precedent to the Initial Closing. The obligations of the Purchasers to purchase the Original Notes shall be
subject to the satisfaction of the following conditions precedent:
(a) Operative Documents. The Collateral Agent and the
Purchasers shall have received the following, each dated as of the Initial Closing Date (unless otherwise specified) and, other than in the case of the Notes, in such number of copies as the Collateral Agent and the Purchasers shall have reasonably
requested:
(i) a duly executed Original Note for the account of each Purchaser;
(ii) the Pledge Agreement, duly completed and executed by the Issuer, in form and substance satisfactory to the Collateral Agent and the
Purchasers; and
(iii) an opinion of counsel to the Note Parties addressed to the Collateral Agent and the Purchasers, in the form agreed
on the date hereof with the Required Holders.
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Portions of this Exhibit were omitted and have been filed separately with the Secretary of the Commission pursuant to the Companys application requesting confidential treatment under Rule 24b-2 of the Exchange Act;
[
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] denotes omissions. |
(b) Filing of Financing Statements and Other Recordations. The filings of financing
statements under the UCC and other recordings required to perfect a security interest in the Collateral shall have been made.
(c)
Termination of the Revenue Interest Assignment Agreement. Issuer shall have furnished to the Collateral Agent and the Purchasers evidence in form and substance reasonably satisfactory to such Purchaser, that the Revenue Interest Assignment
Agreement has been terminated and that all rights, title and interests to the Royalties and other assets of the Issuer subject thereto shall have reverted to the Issuer (which evidence shall include an agreement with Ingalls and Arthur Koenig
providing for such termination and reversion (such agreement, the Ingalls Termination Agreement)).
(d)
Secretarys Certificate. The Collateral Agent and the Purchasers shall have received a certificate of the secretary or an assistant secretary of each Note Party, dated as of the Initial Closing Date and in form and substance reasonably
satisfactory to the Purchasers, certifying (i) that attached thereto is a true and complete copy of the articles or certificate of incorporation, certificate of formation or other organizational document and all amendments thereto of such
party, certified as of a recent date by the Secretary of State (or comparable Governmental Authority) of its jurisdiction of organization, and that the same has not been amended since the date of such certification, (ii) that attached thereto
is a true and complete copy of the bylaws, operating agreement or similar governing document of such party, as then in effect and as in effect at all times from the date on which the resolutions referred to in clause (iii) below were adopted to
and including the date of such certificate, (iii) that attached thereto is a true and complete copy of resolutions adopted by the board of directors (or similar governing body) of such party, authorizing the execution, delivery and performance
of this Agreement and the other Operative Documents to which it is a party, and (iv) as to the incumbency and genuineness of the signature of each officer of such party executing this Agreement or any of such other Operative Documents, and
attaching all such copies of the documents described above.
(e) Representations and Warranties. Each of the representations and
warranties made by the Note Parties pursuant to Article V of this Agreement shall be true and correct on and as of the Initial Closing Date with the same effect as if made on and as of such date (except to the extent any such representation or
warranty relates to a specific date, in which case such representation or warranty shall be true and correct as of such date).
(f) No
Default. No Default shall have occurred and be continuing on the Initial Closing Date or after giving effect to the purchase of Original Notes to be made on such date.
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Portions of this Exhibit were omitted and have been filed separately with the Secretary of the Commission pursuant to the Companys application requesting confidential treatment under Rule 24b-2 of the Exchange Act;
[
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] denotes omissions. |
(g) Officers Certificate. The Collateral Agent and the Purchasers shall have
received a certificate, signed by an authorized officer of the Parent and the Issuer, dated as of the Initial Closing Date and in form and substance satisfactory to the Collateral Agent and the Purchasers, that all the conditions set forth in this
Section 6.1 shall have been satisfied as required hereunder.
(h) Good Standings. The Collateral Agent and the Purchasers
shall have received a certificate as of a recent date to the Initial Closing Date of the good standing of each Note Party, under the laws of its jurisdiction of organization, from the Secretary of State (or comparable Governmental Authority) of such
jurisdiction.
(i) Lien Searches. The Collateral Agent shall have received certified reports from an independent search service
satisfactory to it listing any judgment or tax lien filing or UCC financing statement that, in each case, names the Issuer as debtor in any of the jurisdictions identified in the Pledge Agreement, and the results thereof shall be reasonably
satisfactory to the Collateral Agent and the Purchasers.
(j) Fees; Expenses. The Note Parties shall have paid all reasonable
documented and out-of-pocket expenses required hereunder or under any other Operative Document to be paid on or prior to the Initial Closing Date (including reasonable fees and expenses of counsel) in connection with this Agreement and the other
Operative Documents.
(k) CUSIP Number. Standard & Poors CUSIP Service Bureau shall have issued a CUSIP number for
the Original Notes.
Section 6.2 Conditions Precedent to the Additional Closing. The obligations of the Purchasers to purchase
the Additional Notes shall be subject to the satisfaction of the following conditions precedent:
(a) Additional Notes. Each
Purchaser shall have received a duly executed Additional Note for the account of such Purchaser.
(b) Opinion of Counsel. The
Collateral Agent and the Purchasers shall have received, dated as of the Additional Closing Date (unless otherwise specified) and in such number of copies as the Collateral Agent and the Purchasers shall have requested an opinion of counsel to the
Note Parties and addressed to the Collateral Agent and the Purchasers, in the form agreed on the date hereof with the Required Holders.
(c) Secretarys Certificate. The Collateral Agent and the Purchasers shall have received a certificate of the secretary or an
assistant secretary of each Note Party, dated as of the Additional Closing Date and in form and substance reasonably satisfactory to the Purchasers, certifying (i) that attached thereto is a true and complete copy of the articles or certificate
of incorporation, certificate of formation or other organizational document and all amendments thereto of such party, certified as of a recent date by the Secretary of State (or comparable Governmental Authority) of its jurisdiction of organization,
and that the same has
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Portions of this Exhibit were omitted and have been filed separately with the Secretary of the Commission pursuant to the Companys application requesting confidential treatment under Rule 24b-2 of the Exchange Act;
[
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] denotes omissions. |
not been amended since the date of such certification, (ii) that attached thereto is a true and complete copy of the bylaws, operating agreement or similar governing document of such party,
as then in effect and as in effect at all times from the date on which the resolutions referred to in clause (iii) below were adopted to and including the date of such certificate, (iii) that attached thereto is a true and complete copy of
resolutions adopted by the board of directors (or similar governing body) of such party, authorizing the execution, delivery and performance of this Agreement and the other Operative Documents to which it is a party, and (iv) as to the
incumbency and genuineness of the signature of each officer of such party executing this Agreement or any of such other Operative Documents, and attaching all such copies of the documents described above.
(d) Representations and Warranties. Each of the representations and warranties made by the Note Parties pursuant to Article V of this
Agreement shall be true and correct on and as of the Additional Closing Date with the same effect as if made on and as of such date (except to the extent any such representation or warranty relates to a specific date, in which case such
representation or warranty shall be true and correct as of such date) in all respects to the extent such representation or warranty contains any materiality or Material Adverse Effect qualifier and in all material respects to the extent such
representation or warranty does not contain any materiality or Material Adverse Effect qualifier.
(e) No Default. No Default shall
have occurred and be continuing on the Additional Closing Date or after giving effect to the purchase of Additional Notes to be made on such date.
(f) Officers Certificate. The Collateral Agent and the Purchasers shall have received a certificate, signed by an authorized
officer of the Parent and the Issuer, dated as of the Additional Closing Date and in form and substance satisfactory to the Collateral Agent and the Purchasers, that all the conditions set forth in this Section 6.2 shall have been satisfied as
required hereunder.
(g) Good Standings. The Collateral Agent and the Purchasers shall have received a certificate as of a recent
date to the Additional Closing Date of the good standing of each Note Party, under the laws of its jurisdiction of organization, from the Secretary of State (or comparable Governmental Authority) of such jurisdiction.
(h) Lien Searches. The Collateral Agent shall have received certified reports from an independent search service satisfactory to it
listing any judgment or tax lien filing or UCC financing statement that, in each case, names the Issuer as debtor in any of the jurisdictions identified in the Pledge Agreement, and the results thereof shall show no Liens on the Collateral other
than the Permitted Encumbrances.
(i) Fees; Expenses. The Note Parties shall have paid all reasonable documented and out-of-pocket
expenses required hereunder or under any other Operative Document to be paid on or prior to the Additional Closing Date (including reasonable fees and expenses of counsel) in connection with this Agreement and the other Operative Documents.
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Portions of this Exhibit were omitted and have been filed separately with the Secretary of the Commission pursuant to the Companys application requesting confidential treatment under Rule 24b-2 of the Exchange Act;
[
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] denotes omissions. |
(j) FDA Approval Date. The Issuer shall have furnished to each Purchaser evidence in form
and substance reasonably satisfactory to such Purchaser, that the FDA Approval Date has occurred; provided that the publication on the FDA website of the grant of Marketing Authorization from the FDA for the commercial sale of the Shingles Product
shall be deemed to constitute satisfactory evidence to the Purchasers.
(k) Purchase Notice. The Issuer shall have provided written
notice of the Issuers election to issue Additional Notes and the Additional Closing Date therefor to the Collateral Agent and each Purchaser at least 15 Business Days prior to such Additional Closing Date.
(l) CUSIP Number. Standard & Poors CUSIP Service Bureau shall have issued a CUSIP number for the Additional Notes.
ARTICLE VII
INFORMATION AS TO
THE PARENT AND THE ISSUER
Section 7.1 Financial and Other Information. The Issuer or Parent, as applicable, shall deliver
to the Collateral Agent and each Noteholder:
(a) in connection with any sale of any or all of its Notes, and to any prospective purchaser
of such Notes from such Noteholder, upon their request, any information required by Rule 144A(d)(4) under the Securities Act;
(b)
promptly, and in any event within five Business Days after a Responsible Officer becoming aware of the existence of any Default or an Event of Default or that any Person has given any notice or taken any action with respect to a claimed Default
hereunder, a written notice specifying the nature and period of existence thereof and what action the Issuer is taking or proposes to take with respect thereto;
(c) as soon as available (i) but in any event within 90 calendar days after the end of each fiscal year of the Parent (commencing with
the fiscal year ending December 31, 2015), a consolidated balance sheet of the Parent as at the end of such fiscal year, and the related consolidated statements of income or operations, changes in shareholders equity and cash flows for
such fiscal year, setting forth in each case in comparative form the figures for the previous fiscal year, all in reasonable detail and prepared in accordance with GAAP, audited and accompanied by a report and opinion of an independent certified
public accountant of nationally recognized standing, which report and opinion shall be prepared in accordance with generally accepted auditing standards, and (ii) but in any event within 45 calendar days after the end of each of the first three
fiscal quarters of each fiscal year of the Parent (commencing with the fiscal quarter ending September 30, 2015), a consolidated balance sheet of the Parent as at the end of such fiscal quarter, and the related consolidated statements of income
or operations and cash flows for such fiscal quarter and for the portion of the Parents fiscal year then ended, setting forth in the case of the balance sheet in comparative form the figures for the prior fiscal year-end
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Portions of this Exhibit were omitted and have been filed separately with the Secretary of the Commission pursuant to the Companys application requesting confidential treatment under Rule 24b-2 of the Exchange Act;
[
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] denotes omissions. |
and in the case of the statements of income or operations and cash flows in comparative form the figures for the corresponding fiscal quarter of the previous fiscal year and the corresponding
portion of the previous fiscal year, all in reasonable detail and prepared in accordance with GAAP, certified by the chief executive officer, chief financial officer, treasurer or controller who is a Responsible Officer of the Parent as fairly
presenting the financial condition, results of operations, shareholders equity and cash flows of the Parent, subject only to normal year-end audit adjustments and the absence of footnotes; and
(d) such other financial information relating to the Note Parties reasonably available to any of the Note Parties and information relating to
the Products, the Royalties or the Applicable Agreements (insofar as such information relating to the Applicable Agreements, in the reasonable judgment of the Collateral Agent or such Noteholder, relates in any way to the Royalties or the Products),
as reasonably requested by the Collateral Agent or any Noteholder from time to time (provided that a Note Parties shall not be required to disclose any information subject to attorney-client privilege, any trade secrets or whose disclosure to the
Collateral Agent or the Noteholders would violate any confidentiality obligations applicable to such Note Party).
The Note Parties may satisfy their
delivery obligations under Section 7.1(c) by filing with the SEC such financial statements in a Form 10-K or 10-Q, as applicable, along with appropriate certifications pursuant to Rules 13a-14(a) and 15(d)-14(a) under the Securities Exchange
Act of 1934, as amended.
Section 7.2 Reports.
(a) The Issuer shall, no later than 12:00 noon (New York City time) on the third Business Day prior to each Payment Date (such date, the
Relevant Calculation Date), deliver to the Collateral Agent and each Noteholder the following information in a report (a Collection Account Calculation Report):
(i) A copy of all reports produced by Counterparty pursuant to Section 4.2 of the License Agreement and Section 6.2 of the
Manufacturing Agreement (redacted for information unrelated to the Products), for the preceding calendar quarter with respect to any Product, including a calculation of the aggregate amount of Royalties payable in respect of such calendar quarter;
(ii) the Available Collections Amount as of such Relevant Calculation Date and the amount and type of Collections received during the
period commencing on the day immediately following the immediately preceding Calculation Date and ending on such Relevant Calculation Date;
(iii) all Expenses of the Collateral Agent and the Noteholders subject to reimbursement by the Note Parties under the Operative Documents;
provided that the Collateral Agent or applicable Noteholder shall have provided an invoice therefor at least ten (10) Business Days prior to such Relevant Calculation Date;
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Portions of this Exhibit were omitted and have been filed separately with the Secretary of the Commission pursuant to the Companys application requesting confidential treatment under Rule 24b-2 of the Exchange Act;
[
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(iv) the aggregate principal amount of all Notes (including all PIK Amounts) outstanding as of
the Calculation Date together with accrued and unpaid interest to and including the applicable Payment Date; and
(v) the amounts
distributable to the Issuer from the Collection Account pursuant to Section 8.5(d) and the amounts payable in respect of the Notes on the applicable Payment Date pursuant to Section 8.5(b) (such payments, the Note
Payments).
(b) The Issuer shall, at the time the Issuer delivers (or is otherwise required to deliver) the Collection Account
Calculation Report to the Collateral Agent and each Noteholder pursuant to Section 7.2(a), deliver to the Collateral Agent the following information in a report for each Noteholder:
(i) the name of such Noteholder;
(ii) the pro rata portion of Note Payments to be distributed to such Noteholder in an amount equal to the same proportion that the principal
amount of Notes such Noteholder held as of the Relevant Calculation Date bears to the aggregate principal amount of all Notes outstanding as of the Relevant Calculation Date (each, a Noteholder Payment), less any applicable
withheld Taxes;
(iii) the amount of any applicable withheld Taxes, along with the original or a certified copy of a receipt issued by a
Governmental Authority evidencing such payment, a copy of the return reporting such payment or other evidence of such payment reasonably satisfactory to the Collateral Agent, the Collection Account Bank and the Noteholder; and
(iii) the bank account information for such Noteholder where the Collateral Agent shall direct the Collection Account Bank to deliver such
Noteholder Payment by wire transfer of immediately available funds.
Section 7.3 Confidentiality. Each Noteholder agrees that
such Noteholder will keep confidential and will not disclose, divulge or use for any purpose (other than to monitor its investment in the Note Parties) any confidential information obtained from any of the Applicable Agreement Parties in connection
with its investment in the Notes, unless such confidential information (a) is known or becomes known to the public in general (other than as a result of a breach of this Section 7.3 by such Noteholder), (b) is or has been
independently developed or conceived by such Noteholder without use of any of the Applicable Agreement Parties confidential information as evidenced by the Noteholders written records or (c) is or has been made known or disclosed to
such Noteholder by a Third Party without a breach of any obligation of confidentiality such Third Party may have to any of the Applicable Agreement Parties; provided, however, that a Noteholder may disclose confidential information:
(i) to its attorneys, accountants, consultants and other professionals to the extent necessary to obtain their services in connection with monitoring its investment in the Note Parties, provided, however, that such Persons shall
be informed of the confidential nature of such information and shall be bound by
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Portions of this Exhibit were omitted and have been filed separately with the Secretary of the Commission pursuant to the Companys application requesting confidential treatment under Rule 24b-2 of the Exchange Act;
[
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] denotes omissions. |
obligations of non-use and confidentiality no less onerous than those set forth herein; (ii) to any prospective purchaser of the Notes from such Noteholder, if such prospective purchaser
agrees to be bound by the provisions of this Section 7.3; (iii) to any Affiliate, partner, member, stockholder or wholly owned subsidiary of such Noteholder in the ordinary course of business, provided, however, that such
Persons shall be informed of the confidential nature of such information and shall be bound by obligations of non-use and confidentiality no less onerous than those set forth herein; or (iv) as may otherwise be required by law, provided that
such Noteholder promptly notifies the Applicable Agreement Party of such disclosure and takes reasonable steps to minimize the extent of any such required disclosure.
ARTICLE VIII
TERMS OF THE
NOTES
Section 8.1 Maturity; Mandatory Payments.
(a) On the earlier of (i) the twelfth anniversary of the Initial Closing Date, and (ii) the Final Legal Maturity Date, the Issuer
shall pay an amount in respect of the Notes equal to the Contingent Make-Whole Payment with such payments to be made and applied in accordance with Section 8.5(c).
(b) The Notes, together with all accrued and unpaid interest, shall be due and payable on the Final Legal Maturity Date.
Section 8.2 Interest.
(a) Interest on the outstanding principal balance of each Note (including any PIK Amounts) shall accrue at a rate of 13.5% per annum.
Interest on the Notes shall be computed on the basis of a 360-day year and the actual number of days elapsed.
(b) Interest shall be due
and payable (i) on each Payment Date, in arrears, until the entire principal amount of the Notes plus interest thereon is paid in full, provided that, to the extent the accrued interest on the Notes due and payable on any Payment Date exceeds
the Note Payments for such Payment Date (Excess Interest), such Excess Interest shall be capitalized and added to the aggregate principal amount of the outstanding Notes (the amount of any such capitalized interest, PIK
Amounts), and (ii) on each date when all or any amount of the unpaid principal balance of each such Note shall be due (whether at maturity, by acceleration, prepayment or otherwise), but only to the extent accrued and only with
respect of the principal amount (including PIK Amounts) being paid.
(c) Notwithstanding the foregoing, upon the occurrence and during the
continuance of any Event of Default (other than an Event of Default set forth in Section 10.1(b)(ii)), at the sole discretion of the Collateral Agent, the interest payable pursuant to Section 8.2(a) shall increase by 2.5% per annum
(such aggregate increased rate, the Default Rate). If any Obligation is not paid when due under the applicable Operative Document (including the
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Portions of this Exhibit were omitted and have been filed separately with the Secretary of the Commission pursuant to the Companys application requesting confidential treatment under Rule 24b-2 of the Exchange Act;
[
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failure to pay any AHYDO Payment (regardless of whether sufficient amounts are in the Collection Account to make such payments), but excluding the failure to pay any other Limited Recourse
Obligation when due), the amount thereof shall accrue interest at a rate equal to the Default Rate (without duplication of interest payable at the Default Rate).
Section 8.3 Buy-Out Provision. The Issuer may, upon not less than 30 days prior written notice to the Collateral Agent and the
Noteholders specifying the redemption date and the Issuers calculation of the applicable Redemption Premium, redeem all, but not less than all, of the outstanding Notes at a redemption price equal to the outstanding principal amount of the
Notes, together with all accrued and unpaid interest thereon through and including the date of payment and the Redemption Premium thereon (the Redemption Price). On the redemption date, the Issuer shall pay to each Noteholder the
Redemption Price for such Noteholders Notes.
Section 8.4 Optional Partial Payment. On the third anniversary of the
Initial Closing Date, each Noteholder shall have the option to require the Issuer to repurchase up to 15% of such Noteholders Original Notes at a purchase price equal to the principal amount thereof (including any PIK Amounts) plus accrued and
unpaid interest thereon through and including the date of such repurchase (such purchase price, the Put Price). A Noteholder may exercise its rights under this Section 8.4 by delivering written notice of thereof along with
the principal amount of Original Notes to be repurchased pursuant hereto to the Collateral Agent and the Issuer no later than the third anniversary of the Initial Closing Date. The Issuer shall be required to effect all such repurchases within 90
days of the third anniversary of the Initial Closing Date.
Section 8.5 Payments.
(a) Promptly following the later of (i) the establishment of the Collection Account and (ii) the Initial Closing Date, the Issuer
shall deliver the Payment Instructions to the Counterparty. No Note Party shall provide the Counterparty any notice to direct Counterparty Payments to any account or any Person other than the Collection Account (unless directed in writing by the
Collateral Agent). From and after the Closing Date, the Issuer shall, subject to the immediately following sentence, cause all Counterparty Payments paid to, or on behalf of any Note Party to be paid into the Collection Account which , subject to
Section 9.19, will be at all times subject to the Account Control Agreement and over which Collateral Agent shall have full dominion and control for the ratable benefit of the Noteholders. If any Person makes any payment in respect of the
Royalties to an account of any Note Party other than the Collection Account, then such Note Party promptly, and in any event no later than 2 Business Days following the discovery by such Note Party or receipt of notice from the Collateral Agent, of
such payment, shall remit such payment to the Collection Account in the form received with all necessary endorsements. Except as set forth in Section 8.5(d), no Note Party shall have any right of withdrawal in respect of the Collection Account.
The proceeds of the Collection Account shall be used to make Noteholder Payments in accordance with the terms of Section 8.5(b). All Counterparty Payments shall be deposited in the Collection Account and transferred therefrom in accordance with
the terms of this Agreement. Notwithstanding anything in this Agreement or in any other Operative Document to the contrary, no funds shall be deposited in the Collection
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Portions of this Exhibit were omitted and have been filed separately with the Secretary of the Commission pursuant to the Companys application requesting confidential treatment under Rule 24b-2 of the Exchange Act;
[
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] denotes omissions. |
Account, including by the Issuer or any other Note Party, that do not constitute Counterparty Payments or investment income on amounts in deposit in the Collection Account, without the prior
written consent of the Collateral Agent.
(b) The Issuer hereby agrees and instructs that, quarterly on each
March 15, June 15, September 15 and December 15 (each, a Payment Date), the Collateral Agent shall direct (or in the case of an escrow arrangement, the escrow agent shall direct) the disbursement of
the amounts in the Collection Account to each Noteholder that held outstanding Notes as of the close of business on the Relevant Calculation Date for such Payment Date, with any amounts paid to be applied (i) first, to accrued and unpaid
interest (other than any PIK Amounts), and (ii) second, to the outstanding principal amount of the Notes (including any PIK Amounts), until such Notes and all accrued and unpaid interest thereon (including any PIK Amounts) have been paid in
full. Notwithstanding anything in this Agreement or in any other Operative Document to the contrary, if a Note shall remain outstanding after the fifth (5th) anniversary of the initial issuance thereof and the aggregate amount that would be
includible in the gross income of a Noteholder with respect to a Note (within the same meaning of Section 163(i) of the Code) for the periods ending on or before any Payment Date that occurs after such fifth (5th) anniversary (the
Aggregate Accrual) would otherwise exceed an amount equal to the sum of (i) the aggregate amount of interest to be paid (within the meaning of Section 163 (i) of the Code) under such Note on or before such Payment
Date, and (ii) the product of (A) the issue price (as defined in Section 1273(b) of the Code) of such Note and (B) the yield to maturity (interpreted in accordance with Section 163(i) of the code) of such Note (such sum, the
Maximum Accrual), then the Issuer shall pay solely out of, and the Collateral Agent shall be authorized to direct the disbursement of, the amounts in the Collection Account (other than amounts subject to release pursuant to
Section 8.5(d)) on each applicable Payment Date occurring after such fifth (5th) anniversary that portion of the outstanding principal amount of such Note necessary to prevent such Note from constituting an applicable high yield
discount obligation within the meaning of Section 163(i) of the Code, up to an amount equal to the excess, if any, of the Aggregate Accrual over the Maximum Accrual (each such payment out of amounts in the Collection Account described in
this section, the AHYDO Payment) and the amount of such AHYDO Payment and any interest thereon shall be treated for U.S. federal income tax purposes as an amount of interest to be paid (within the meaning of
Section 163(i)(2)(B)(i) of the Code) under such Note. This provision is intended to prevent the Notes from being classified as applicable high yield discount obligations, as defined in Section 163(i) of the Code, and shall be
interpreted consistently therewith.
(c) Except as otherwise provided, any payments and other amounts owing under the Operative Documents
shall be made, prior to 11:00 a.m., New York City time, on the date when due pursuant to wire instructions provided to the Issuer and the Collateral Agent by the Noteholders. Except as set forth in Section 8.5(b), each payment hereunder shall
be applied (i) first, to the Expenses (allocated as reasonably determined by the Collateral Agent and, without prejudice to the Issuers obligations pursuant to Section 16.3, invoiced to the Issuer at least ten Business Days prior to
the date of the applicable payment), (ii) second, to accrued and unpaid interest (other than PIK Amounts), (iii) third, to the Redemption Premium, if any, (iv) fourth, to the outstanding principal amount of the Notes (including any
PIK Amounts), and (v) fifth, to any remaining amounts then due and payable under the Operative Documents.
(d) To the extent any
Counterparty Payments include amounts that are not Royalties, the Issuer shall request that the Collateral Agent disburse, or direct the Collection Account Bank to disburse, such Counterparty Payments as directed by the Issuer upon presentation to
the Collateral Agent of documentation and other evidence satisfactory to the Collateral Agent that such payments are not Royalties.
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Portions of this Exhibit were omitted and have been filed separately with the Secretary of the Commission pursuant to the Companys application requesting confidential treatment under Rule 24b-2 of the Exchange Act;
[
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Section 8.6 Pro Rata Treatment.
(a) The purchase of Notes on each Closing Date shall be made by the Purchasers pro rata on the basis of their respective commitments. All
payments on account of principal of or interest on any Notes, fees or any other Obligations owing to or for the account of any one or more Noteholders shall be apportioned ratably among the Noteholders in proportion to the amounts of such principal,
interest and other Obligations owed to them respectively.
(b) If any Noteholder shall, by exercising any right of setoff or counterclaim
or otherwise, obtain payment in respect of any principal of or interest on any of its Notes or other Obligations hereunder resulting in such Noteholders receiving payment of a proportion of the aggregate amount of its Notes and accrued
interest thereon or other such Obligations greater than its pro rata share thereof as provided herein, then the Noteholder receiving such greater proportion shall (i) notify the other Noteholders of such fact and (ii) purchase (for cash at
face value) participations in the Notes and such other Obligations of the other Noteholders, or make such other adjustments as shall be equitable, so that the benefit of all such payments shall be shared by the Noteholders ratably in accordance with
the aggregate amount of principal of and accrued interest on their respective Notes and other amounts owing them; provided that (A) if any such participations are purchased and all or any portion of the payment giving rise thereto is recovered,
then such participations shall be rescinded and the purchase price restored to the extent of such recovery, without interest, and (B) the provisions of this Section 8.6(b) shall not be construed to apply to (x) any payment made by any
Note Party pursuant to and in accordance with the express terms of the Operative Documents or (y) any payment obtained by a Noteholder as consideration for the assignment of or sale of a participation in any of its Notes to any assignee or
participant, other than to the Parent, Issuer or any Subsidiary (as to which the provisions of this Section 8.6(b) shall apply). Each Note Party consents to the foregoing and agrees, to the extent it may effectively do so under applicable law,
that any Noteholder acquiring a participation pursuant to the foregoing arrangements may exercise against the Noteholders rights of setoff and counterclaim with respect to such participation as fully as if such Noteholder were a direct creditor of
such Note Party in the amount of such participation. If under any applicable bankruptcy, insolvency or similar law, any Noteholder receives a secured claim in lieu of a setoff to which this Section 8.6(b) applies, then such Noteholder shall, to
the extent practicable, exercise its rights in respect of such secured claim in a manner consistent with the rights of the Noteholders entitled under this Section 8.6(b) to share in the benefits of any recovery on such secured claim.
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Portions of this Exhibit were omitted and have been filed separately with the Secretary of the Commission pursuant to the Companys application requesting confidential treatment under Rule 24b-2 of the Exchange Act;
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ARTICLE IX
COVENANTS OF THE NOTE PARTIES
The Note
Parties covenant with the Noteholders that, so long as any Notes are outstanding, the Note Parties will perform and comply with each of the following covenants:
Section 9.1 Books and Records.
(a) As promptly as practicable after receipt by an Applicable Agreement Party of notice of any action, claim, investigation or proceeding
(commenced or threatened) relating to the transactions contemplated by any Operative Document or relating to any of the Applicable Agreements, the Applicable Agreement Parties shall inform the Collateral Agent and the Noteholders of the receipt of
such notice and the substance of such action, claim, investigation or proceeding and, if in writing, shall furnish the Collateral Agent and the Noteholders with a copy of such notice and any related materials with respect to such action, claim,
investigation or proceeding.
(b) The Applicable Agreement Parties shall keep and maintain, and shall use commercially reasonable efforts
(without expanding its obligation under Section 9.2(d)) to cause Counterparty to keep and maintain, full and accurate books of accounts and records adequate to reflect accurately all Royalties paid and/or payable with respect to the
Counterparty License Agreements and all deposits made into the Collection Account.
(c) As promptly as practicable after receipt by any
Applicable Agreement Party of any material written notice, certificate, offer, proposal, correspondence, report, non-public information or other non-public written communication relating directly to any of the Applicable Agreements (insofar as it
relates to the Royalties or the Product), the Royalties or any of the Products, the Applicable Agreement Parties shall inform the Collateral Agent and the Noteholders of such receipt and the substance contained therein and, if in writing, shall
furnish the Noteholders with a copy of such notice, certificate, offer, proposal, correspondence, report, information or other written communication. Notwithstanding the foregoing, no Applicable Agreement Party shall be required to provide the
Collateral Agent or any Noteholder any offer or proposal relating to any refinancing or buyback of the Notes or any written communications relating thereto.
(d) As promptly as practicable, the Note Parties shall provide the Collateral Agent and the Noteholders with written notice of the institution
of any proceeding by or against any Note Party seeking to adjudicate it bankrupt or insolvent, or seeking liquidation, winding-up, reorganization, arrangement, adjustment, protection, relief or composition of its debts under any Applicable Law
relating to bankruptcy, insolvency or reorganization or relief of debtors, or seeking the entry of an order for relief or the appointment of a receiver, trustee or other similar official for it or for any substantial part of its property.
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Portions of this Exhibit were omitted and have been filed separately with the Secretary of the Commission pursuant to the Companys application requesting confidential treatment under Rule 24b-2 of the Exchange Act;
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Section 9.2 Applicable Agreements.
(a) The Applicable Agreement Parties shall not (i) forgive, release or compromise any Royalty owed under any Counterparty License
Agreement, (ii) waive, amend, cancel or terminate or exercise or fail to exercise any of their rights constituting or involving the right to receive the Royalties, or (iii) without the consent of the Collateral Agent, amend, modify,
restate, cancel, supplement, terminate or waive any provision of any of the Applicable Agreements relating in any way to, or involving directly or indirectly, the Royalties or any of the Products, or grant any consent under any of the Applicable
Agreements relating in any way to, or involving directly or indirectly, the Royalties or any of the Products, or agree to do any of the foregoing, including entering into any agreement with Counterparty under the provisions of any Applicable
Agreement (including the assignment provisions), or, if required under any Applicable Agreement, consenting to any sublicense of Counterparty or entering into any agreement with any sublicensee of Counterparty under the provisions of any Applicable
Agreement, or entering into any sublicense under any of the Applicable Agreements, in each case relating in any way to, or involving directly or indirectly, the Royalties or any of the Products; provided that if any Applicable Agreement provides
that any Applicable Agreement Party not unreasonably withhold, condition or delay (or similar words to this effect) its consent thereunder in respect of such matter, then the Collateral Agent shall similarly not unreasonably withhold, condition or
delay its consent hereunder in respect of such matter. In the event that the Applicable Agreement Parties desire to take any of the actions described in clause (iii) of the immediately preceding sentence and have reasonably concluded that such
action, if taken, would not relate in any way to, or involve directly or indirectly, the Royalties or any of the Products, the Applicable Agreement Parties shall notify the Collateral Agent at least five (5) Business Days in advance of the date
upon which the Applicable Agreement Parties desire to take such action, describing the nature of the action and providing reasonable detail to enable the Collateral Agent to understand the action that is contemplated to be taken and, unless the
Collateral Agent provides notice to the Applicable Agreement Parties within such five (5) Business Days period that the Collateral Agent reasonably considers the action to relate in some way to, or involve directly or indirectly, the Royalties
or any of the Products, including reasonable detail as to the basis for this determination, the Applicable Agreement Parties shall not be required to obtain the Collateral Agents consent to such action.
(b) The Applicable Agreement Parties shall timely and fully perform and comply with each of their respective duties and obligations under the
Applicable Agreements.
(c) As promptly as practicable after receiving written or oral notice from Counterparty (i) terminating any
Applicable Agreement or (ii) alleging any breach of or default under any Applicable Agreement by any of the Applicable Agreement Parties, the Applicable Agreement Parties shall (A) give a written notice to the Noteholders describing in
reasonable detail the relevant breach or default, if applicable, including a copy of any written notice received from Counterparty, and, in the case of any such breach or default or alleged breach or default by any of the Applicable Agreement
Parties, the Applicable Agreement Parties shall consult with the Collateral Agent as to any action any of the Applicable Agreement Parties proposes to take to dispute or correct such alleged breach or default and (B), at their own cost and expense,
take commercially reasonable efforts (assuming the collection and receipt of the
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Portions of this Exhibit were omitted and have been filed separately with the Secretary of the Commission pursuant to the Companys application requesting confidential treatment under Rule 24b-2 of the Exchange Act;
[
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Royalties is the only business of the Applicable Agreement Parties and that the Applicable Agreement Parties keep all Royalties so collected and received), including, in any event, taking such
actions as reasonably requested by the Collateral Agent or the Required Holders, to either (I) dispute such breach or default, (II) cure as promptly as practicable such breach or default, or (III) otherwise resolve such dispute. In connection
with any such dispute, where the Applicable Agreement Parties shall employ counsel or the Collateral Agent or the Required Holders reasonably request that the Applicable Agreement Parties employ counsel, the Applicable Agreement Parties shall
employ, at their own cost and expense, such counsel as is reasonably acceptable to the Required Holders (as long as such counsel is reasonably acceptable to the Applicable Agreement Parties).
(d) As promptly as practicable after becoming aware of any threatened or actual breach of or default under any Applicable Agreement by
Counterparty, the Applicable Agreement Parties (i) shall consult with the Collateral Agent as to their response to such threatened or actual breach or default, including giving a written notice to the Collateral Agent and the Noteholders
describing in reasonable detail the relevant breach or default and any action any of the Applicable Agreement Parties proposes to take as a possible response, together with a copy of any written notice that the Applicable Agreement Parties propose
to send to Counterparty, and (ii), at their own cost and expense, use commercially reasonable efforts (assuming the collection and receipt of the Royalties is the only business of the Applicable Agreement Parties and that the Applicable Agreement
Parties keep all Royalties so collected and received), including, in any event, taking such actions as reasonably requested by the Collateral Agent or the Required Holders, to enforce its rights and remedies thereunder. In connection with any such
response and enforcement of rights and remedies under any of the Applicable Agreements where the Applicable Agreement Parties shall employ counsel or the Collateral Agent or the Required Holders reasonably request that the Applicable Agreement
Parties employ counsel, the Applicable Agreement Parties shall employ, at their own cost and expense, such counsel as is reasonably acceptable to the Required Holders (as long as such counsel is reasonably acceptable to the Applicable Agreement
Parties).
(e) [
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Section 9.3 Applicable Patent Rights. The Issuer shall prosecute and maintain in full force and effect all patents and pending
patent applications (if any) included in the Applicable Patent Rights, except where the failure to do so would not reasonably be likely to result in a Material Adverse Effect.
Section 9.4 Audits.
(a) The Collateral Agent and the Noteholders shall have the right to audit, through an independent certified public accountant selected by the
Required Holders and reasonably acceptable to the Issuer, those accounts and records of the Applicable Agreement Parties relevant to any reports referred to in Section 7.2(a)(i) as may be reasonably necessary to verify the accuracy of the
amounts deposited into the Collection Account based on information included in such reports referred to in Section 7.2(a)(i) for any or all of the three calendar years
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Portions of this Exhibit were omitted and have been filed separately with the Secretary of the Commission pursuant to the Companys application requesting confidential treatment under Rule 24b-2 of the Exchange Act;
[
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prior to the audit (provided, however, that, prior to conducting any such audit, such accounting firm shall have entered into a confidentiality agreement in form and substance reasonably
satisfactory to the Applicable Agreement Parties). Such audits will occur during normal business hours and no more than once per calendar year. The Noteholders independent certified public accountant will keep confidential all information
obtained during such audit and will report to the Noteholders only the actual amount deposited into the Collection Account based on information included in the applicable reports referred to in Section 7.2(a)(i) and the resulting discrepancy,
if any, between that amount and the amounts in respect of the Royalties that should have been deposited into the Collection Account during the calendar year(s) in question and the details of any discrepancies (the Audit Report).
(b) The Noteholders shall be solely responsible for all the expenses of any audit, unless the Audit Report shows any discrepancy where
funds deposited into the Collection Account based on information included in the applicable reports referred to in Section 7.2(a)(i) were insufficient by five percent (5%) or more than such funds should have been for any of the calendar
years then being reviewed. If the Audit Report shows any such discrepancy, the Applicable Agreement Parties shall be responsible for the reasonable expenses incurred by the Noteholders for the independent certified public accountants services.
The Applicable Agreement Parties shall otherwise also be responsible for the amounts of any discrepancy shown by the Audit Report for any of the calendar years then being reviewed between the amount of funds deposited into the Collection Account
based on information included in the applicable reports referred to in Section 7.2(a)(i) and what those funds should have been. Any payment owed by the Applicable Agreement Parties to the Noteholders as a result of the audit shall be made
within 10 Business Days of the receipt of the independent certified public accountants report by the Noteholders.
(c) To
the extent the Issuer has the right to perform or cause to be performed inspections or audits under either of the Counterparty License Agreements regarding payments payable and/or paid to the Applicable Agreement Parties thereunder (each, a
License Party Audit), the Issuer shall, at the reasonable request of the Collateral Agent or the Required Holders (such request not to be made more frequently than once every calendar year), use commercially reasonable efforts to cause a
License Party Audit to be performed as promptly as practicable in accordance with the terms of the applicable Counterparty License Agreement. In conducting a License Party Audit at the request of the Required Holders, subject to the terms of the
License Agreement, the Issuer shall engage a nationally recognized certified public accountant selected by the Required Holders and reasonably acceptable to the Applicable Agreement Parties. As promptly as practicable after completion of any License
Party Audit (whether or not requested by the Required Holders), the Issuer shall deliver to the Noteholders an audit report summarizing the results of such License Party Audit, which may be redacted for information unrelated to the Products. In the
event that the Required Holders request a License Party Audit, all of the expenses of any such License Party Audit (including, without limitation, the fees and expenses of the independent public accounting firm) that would otherwise be borne by the
Issuer, pursuant to the applicable Counterparty License Agreement, shall instead be borne (as such expenses are incurred) by the Noteholders, provided that any reimbursement by Counterparty of the expenses of the License Party Audit shall belong and
shall be promptly paid to the Noteholders.
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Portions of this Exhibit were omitted and have been filed separately with the Secretary of the Commission pursuant to the Companys application requesting confidential treatment under Rule 24b-2 of the Exchange Act;
[
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Section 9.5 Offsets. The Applicable Agreement Parties shall, and shall cause each of
their respective Affiliates to, include in any future agreements with Counterparty or any of its Affiliates an express prohibition against any sharing of, reduction on, deduction or withholding against, crediting against, set-off against, or
rescission or defense against the Royalties or any part thereof by Counterparty based on any overpayment by, or any amount due to, Counterparty or its Affiliates under any such agreement, and the Applicable Agreement Parties shall not, and shall
cause each of their respective Affiliates not to, amend any existing agreement with Counterparty or any of its Affiliates to provide for any sharing of, reduction on, deduction or withholding against, crediting against, set-off against, or
rescission or defense against the Royalties or any part thereof by Counterparty based on any overpayment by, or any amount due to, Counterparty or its Affiliates under any such agreement.
Section 9.6 Grant of Rights. The Applicable Agreement Parties shall not grant any right to any Person or enter into any agreement
with any Person where such grant or agreement or the terms thereof would contravene or conflict with the terms of (a) any of the Applicable Agreements or the rights of the Applicable Agreement Parties thereunder or (b) any of the Operative
Documents or the rights of the Noteholders thereunder.
Section 9.7 Insurance. Each Note Party will, and will cause each of
its Subsidiaries to maintain, with financially sound and reputable insurance companies, insurance in such amounts and against such risks as are customarily maintained by companies engaged in the same or similar businesses operating in the same or
similar locations.
Section 9.8 No Release of Operative Document Obligations. Except as expressly permitted by any Operative
Document, the Note Parties shall not take any action that would amend, waive, modify, supplement, restate, cancel or terminate, or discharge or prejudice the validity or effectiveness of, the Operative Documents, or permit any party to any such
document to be released from its obligations hereunder or thereunder (unless, in each case, expressly permitted hereunder or thereunder). The Note Parties shall not take any action or engage in any transaction (or series of actions or transactions),
whether by reorganization, transfer of assets, merger, dissolution, amendment of their Organizational Documents or otherwise, the primary purpose of which is to evade, avoid or seek to avoid the performance or observance of the covenants, agreements
or Obligations of the Note Parties under the Operative Documents.
Section 9.9 Use of Proceeds. The Note Parties shall apply
the proceeds of the sale of the Notes (a) to pay the Expenses and other expenses in connection with the transactions contemplated hereby and (b) for working capital and for other general corporate purposes.
Section 9.10 Limitation on Indebtedness. The Issuer shall not create, incur, assume or allow or otherwise permit to exist any
Indebtedness (other than the Obligations).
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Portions of this Exhibit were omitted and have been filed separately with the Secretary of the Commission pursuant to the Companys application requesting confidential treatment under Rule 24b-2 of the Exchange Act;
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Section 9.11 Limitation on Liens. The Issuer shall not create, incur, assume, allow
or otherwise permit to exist any Lien with respect to the Collateral, other than Permitted Encumbrances.
Section 9.12 Compliance
with and Modification of Organizational Documents. Each Note Party shall comply with its Organizational Documents. No Note Party shall take any action to waive, repeal, amend, vary, supplement or otherwise modify its Organizational Documents (in
the case of the Issuer) in a manner that would reasonably be expected to result in a Material Adverse Effect.
Section 9.13
Compliance with Applicable Law. Each Note Party shall comply with all Applicable Law with respect to the Operative Documents and all ancillary agreements related thereto, the violation of which would reasonably be expected to result in a
Material Adverse Effect.
Section 9.14 Existence. Each Note Party shall (a) preserve and maintain its corporate
existence, (b) preserve and maintain its rights, franchises, permits, licenses, approvals and privileges and (c) qualify and remain qualified in good standing in each jurisdiction, in each case where the failure to preserve and maintain
such existence, rights, franchises, permits, licenses, approvals, privileges and qualifications would be a Material Adverse Effect.
Section 9.15 Mergers, Consolidations, Sale of Collateral. The Issuer shall not (x) merge into or consolidate with another
Person, (y) sell, assign, convey, transfer, license, lease or otherwise dispose of (whether in one transaction or in a series of related transactions) all or substantially all of the assets of the Issuer and its Subsidiaries, determined on a
consolidated basis, taken as a whole, or all or substantially all of the assets related to any Product, to or in favor of any Person, or (z) sell, assign, convey, transfer, licenses, lease or otherwise dispose of the Collateral (other than
Permitted Encumbrances); provided, however, that the foregoing shall not limit the Issuers ability (i) to license, transfer or otherwise dispose of any assets unrelated to the Collateral, the Products or the Applicable
Agreements or (ii) to grant licenses or similar conveyances of Proprietary Rights outside of the Fields, in each case in a manner that does not and could not constitute a breach of the Applicable Agreements and is otherwise permitted by the
Operative Documents. The Note Parties shall not sell, assign, convey, transfer, license or otherwise dispose of any of the Applicable Agreements (or any rights thereunder), except for rights transferred under the Assignment and Assumption Agreement.
The Issuer shall not acquire any Subsidiaries or acquire any Capital Securities.
Section 9.16 Tax Matters; Securities Laws.
The Issuer and Parent shall (a) timely file all material Tax returns and reports as required by Applicable Law and such returns and reports shall be true and correct in all material respects, (b) pay all material federal, state, county,
local or foreign Taxes and other assessments when due and payable, (c) pay any applicable stamp or similar Tax due upon any issuance or conversion of the Notes, (d) make available to Noteholders the issue price, the amount of original
issue discount, the issue date and the yield to maturity for each tranche of Notes issued that is treated as a separate issue for tax purposes in accordance with the requirements set forth in Treasury Regulation
Section 1.1275-3(b), (e) use its
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commercially reasonable efforts to file any form (or comply with any other administrative formalities) required for an exemption from or a reduction of any withholding Tax for which it is
eligible, (f) not file any Tax return or report under any name other than its exact legal name, (g) treat, and direct the Collateral Agent to treat (1) the Notes as indebtedness issued with original issue discount within the meaning
of Section 1273(a) of the Code for U.S. federal income tax purposes, and not as contingent payment debt instruments for U.S. federal income tax purposes, and (2) any interest and original issue discount as portfolio
interest within the meaning of Section 871(h) and 881(c) of the Code, and (h) not take any position inconsistent with such treatment of the Notes unless required by a final determination within the meaning of
Section 1313(a) of the Code. The Note Parties shall treat the Notes as securities for all purposes, including securities laws and U.S. federal income tax purposes.
Section 9.17 Change in Business. The Issuer shall not engage in any business other than the businesses currently engaged in by the
Issuer (or reasonably incidental thereto), and the Issuer shall not enter into Material Contracts, acquire any investments or other assets, or sell or distribute any assets, except as could not reasonably be expected, individually or in the
aggregate, to result in a Material Adverse Effect.
Section 9.18 Additional Guarantors. Prior to the FDA Approval Date:
(a) Each Note Party will take such action, and will cause each of its Subsidiaries to take such action, from time to time as shall be
necessary to ensure that all Subsidiaries that are Domestic Subsidiaries, are Subsidiary Guarantors hereunder; provided, however that this Section 9.18 shall not apply to any Excluded Subsidiary. Without limiting the
generality of the foregoing, in the event that Parent or any of its Subsidiaries shall form or acquire any new Subsidiary that is a Domestic Subsidiary, such Note Party and its Subsidiaries concurrently will:
(i) cause such new Domestic Subsidiary to become a Subsidiary Guarantor hereunder pursuant to a Guarantee Assumption Agreement
substantially in the form of Exhibit E hereto; and
(ii) deliver such proof of corporate action, incumbency of officers, opinions
of counsel and other documents as is consistent with those delivered by each Noteholder pursuant to Section 6.1 or as the Collateral Agent shall have requested.
(b) The Note Parties shall provide the Collateral Agent at least 10 Business Days prior written notice (or such other notice as agreed by the
Collateral Agent in its sole discretion) of the formation or acquisition of any Subsidiary, together with a description in reasonable detail of the circumstances giving rise to such formation or acquisition, the assets or expected assets of, and the
business conducted or proposed to be conducted by such Subsidiary; provided, however that, if (i) a new Subsidiary is formed or acquired in connection with any merger or acquisition transaction, then such notice shall be provided within the
earlier of (A) 2 Business Days after the public disclosure of such transaction or (B) 10 Business Days after the consummation of such transaction or (ii) a new Subsidiary is formed to accomplish or facilitate
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the re-incorporation, re-domiciling or similar reorganization of any Note Party or Subsidiary thereof, then such notice shall be provided within 10 Business Days after the consummation of such
re-incorporation, re-domiciling or similar reorganization.
Section 9.19 Collection Account. Not later than 10 Business Days
following the Initial Closing Date, the Issuer shall establish the Collection Account and the Issuer, the Collateral Agent and, as necessary, Parent and the Purchasers, each acting reasonably, shall execute and deliver a customary Account Control
Agreement reasonably satisfactory to the Collateral Agent meeting the requirements of the Pledge Agreement, and all other documents, certificates and agreements as are reasonably required to establish the Collection Account and to establish the
Collateral Agents full dominion and control (including for purposes of UCC 9-104) over the Collection Account.
ARTICLE X
EVENTS OF DEFAULT
Section 10.1 Events of Default. An Event of Default shall exist if any of the following conditions or events
shall occur and be continuing:
(a) Except as otherwise permitted pursuant to Section 8.5(a), the failure by the Issuer to deposit or
cause to be deposited any Counterparty Payments paid to or on behalf of any Note Party into the Collection Account at all times;
(b) the
failure by the Issuer to pay (i) the Contingent Make-Whole Payment or the Put Price for any Put Notes when due (whether at maturity, redemption, repurchase or otherwise), (ii) any principal or interest on the Notes when due pursuant to
Section 8.1(b), (iii) when due upon redemption pursuant to Section 8.3, any principal, Redemption Premium or interest, or (iv) any Indemnified Taxes, Expenses and Indemnity and such failure continues for 10 calendar days after
written notice thereof has been given to the Issuer by the Collateral Agent or the Required Holders;
(c) (i) any representation or
warranty made or deemed made by or on behalf of any Note Party pursuant to Sections 5.2, 5.3, 5.5(a), 5.5(b), 5.5(d), 5.6, 5.9, 5.10(i)(A), 5.10(i)(B), 5.11, 5.14, 5.18(a), 5.21, 5.26 or 5.27 (other than 5.27(g)) or pursuant to the Pledge Agreement
shall: (A) prove to have been incorrect when made or deemed made to the extent that such representation or warranty contains any materiality or Material Adverse Effect qualifier; or (B) prove to have been incorrect in any material respect
when made or deemed made to the extent that such representation or warranty does not otherwise contain any materiality or Material Adverse Effect qualifier or (ii) any other representation or warranty made or deemed made by or on behalf of any
Note Party in or in connection with this Agreement, or any other Operative Document or any amendment or modification hereof or thereof, or in any report certificate, financial statement or other document furnished pursuant to or in connection with
this
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Agreement or any other Operative Document or any amendment or modification hereof or thereof shall: (A) prove to have been incorrect when made or deemed made to the extent that such
representation or warranty contains any materiality or Material Adverse Effect qualifier; or (B) prove to have been incorrect in any material respect when made or deemed made to the extent that such representation or warranty does not otherwise
contain any materiality or Material Adverse Effect qualifier;
(d) (i) the failure by any Note Party to comply with any covenant,
obligation, condition or provision binding on it pursuant to Sections 7.1(a), 7.1(b), 9.1, 9.2, 9.3, 9.4, 9.5, 9.6, 9.8, 9.10, 9.11, 9.12 (with respect to the Issuer), 9.14 (with respect to the Parent and the Issuer), 9.15, 9.18 or 9.19 if, other
than in the case of Sections 9.10 and 9.11, such failure to comply (A) results in a Material Adverse Effect, or (B) continues for more than 10 calendar days after written notice thereof has been given to the Issuer by the Collateral Agent
or the Required Holders; (ii) the failure by any Note Party to comply with any other covenant, obligation, condition or provision pursuant to Article 9 if such failure to comply results in a material adverse effect on the rights or remedies of
the Note Parties under any of the Applicable Agreements or an adverse effect (other than any de minimis effect) on the timing, amount or duration of the Royalties or the right of the Noteholders to receive payments on the Notes in respect of the
Royalties in accordance with the Operative Documents; (iii) the failure by any Note Party (A) to comply with any other covenant, obligation, condition or provision binding on it under Section 7.1 or Article 9 and, other than in the
case of (1) Section 9.16(g), (2) Section 9.16(h) as it applies to Section 9.16(g) and (3) the last sentence of Section 9.16, such failure continues for more than 10 calendar days after written notice thereof has
been given to the Issuer by Collateral Agent or the Required Holders or (B) to make any AHYDO Payment (regardless of whether sufficient amounts are in the Collection Account to make such payments); or (iv) the failure by any Note Party to
comply with any other covenant, obligation, condition or provision binding on it under the Operative Documents (other than as covered by clauses (a), (b), (c), (d)(i), (d)(ii) or (d)(iii) above) and such failure continues for more than 10 calendar
days after written notice thereof has been given to the Issuer by Collateral Agent or the Required Holders;
(e) one or more final and
unappealable judgments for the payment of money in an aggregate amount in excess of $1,000,000 (or the equivalent amount in other currencies) shall be rendered against the Issuer and the same shall remain undischarged for a period of 45 consecutive
days during which execution shall not be effectively stayed, or any action shall be legally taken by a judgment creditor to attach or levy upon any assets of the Issuer to enforce any such judgment;
(f) any Note Party or 4-Antibody AG becomes subject to a Voluntary Bankruptcy or an Involuntary Bankruptcy or the Parent or the Issuer becomes
insolvent (except, in the case of the Issuer, to the extent arising out of a Limited Recourse Obligation), or generally does not or becomes unable to pay its debts or meet its liabilities as the same become due, or declares any general moratorium on
its indebtedness, or proposes a compromise or arrangement or deed of company arrangement between it and any class of its creditors;
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(g) the Collateral Agent shall fail to have a first-priority perfected security interest in any
of the Collateral, other than as permitted in accordance with the Operative Documents; or
(h) the occurrence of a Change of Control.
The foregoing shall constitute Events of Default whatever the reason for any such Event of Default and whether it is voluntary or involuntary or is affected
by operation of Applicable Law or pursuant to any judgment, decree or order of any court or any order, rule or regulation of any Governmental Authority.
ARTICLE XI
REMEDIES ON
DEFAULT, ETC.
Section 11.1 Acceleration. If any Specified Event of Default (other than an Event of Default set forth in
Section 10.1(f) with respect to the Parent or the Issuer) has occurred and is continuing, the Collateral Agent or the Required Holders may at any time at their option, by written notice to the Issuer, declare the Notes then outstanding to be
due and payable in whole (or in part, in which case any principal amount (including any PIK Amounts) not so declared to be due and payable may thereafter be declared to be due and payable), and thereupon the principal amount (including any PIK
Amounts) of the Notes so declared to be due and payable, together with accrued interest thereon and all fees and other Obligations, shall become due and payable immediately (in the case of the Notes, at the Redemption Price therefor), without
presentment, demand, protest or other notice of any kind, all of which are hereby waived by each Note Party. If an Event of Default set forth in Section 10.1(f) shall occur and be continuing with respect to the Parent or the Issuer, the
principal amount (including any PIK Amounts) of the Notes then outstanding, together with accrued interest thereon and all fees and other Obligations, shall automatically become due and payable immediately (in the case of the Notes, at the
Redemption Price therefor), without presentment, demand, protest or other notice of any kind, all of which are hereby waived by each Note Party. Upon the described amounts becoming due and payable under this Section 11.1, such amounts shall be
immediately due and payable in cash for deposit into the Collection Account or as otherwise directed by the Collateral Agent, in each and every case without presentment, demand, protest or further notice, all of which are hereby waived.
Section 11.2 Other Remedies; Limitations on Remedies.
(a) If any Event of Default has occurred and is continuing, and irrespective of whether any amounts have been declared immediately due and
payable under Section 11.1, the Collateral Agent may, and shall at the direction of the Required Holders, proceed to protect and enforce the rights of the Noteholders by an action at law, suit in equity or other appropriate proceeding, whether
for the specific performance of any agreement contained in the Operative Documents or in any Note, for an injunction against a violation of any of the terms hereof or thereof, or in aid of the exercise of any power granted hereby or thereby or by
Applicable Law or otherwise.
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(b) Notwithstanding the foregoing provisions of Section 11.2(a), but expressly subject to
(A) the Full Recourse Obligations, (B) the provisions of Section 11.2(c) below, and (C) the remedies set forth in the Pledge Agreement:
(i) Neither the Collateral Agent nor the Noteholders shall seek or obtain against the Issuer any recourse or deficiency claim (or any
equitable relief with the effect of a money judgment for a recourse or deficiency claim) relating to or arising from non-payment or non-performance of any Limited Recourse Obligations; and
(ii) The Issuer shall have no direct or indirect personal liability under or in connection with any Limited Recourse Obligations.
(c) Notwithstanding the provisions of Section 11.2(b), (i) the Issuer shall have full personal liability for, and shall not be
exonerated or exculpated from, the payment and performance of all Full Recourse Obligations, (ii) the limitations in Section 11.2(b) shall not apply upon (A) a Change of Control, (B) upon the conveyance by the Issuer of any
Collateral (other than the grant of any Permitted Encumbrance under clause (vi) of the definition thereof), (C) the encumbrance by the Issuer of any Collateral in violation of the terms of the Operative Documents, (D) a Voluntary
Bankruptcy or Involuntary Bankruptcy of the Parent or the Issuer (except to the extent arising out of a failure to pay any Limited Recourse Obligation on the Final Legal Maturity Date), (E) any Note Party contests or opposes any motion by the
Collateral Agent or the Noteholders for bankruptcy stay or other relief, (F) the occurrence and continuance of any of those Specified Event(s) of Default set forth in Section 10.1(a), 10.1(b), 10.1(c), 10.1(d), 10.1(e) or 10.1(g), or
(G) any Note Party initiates action to contest Collateral Agents or the Noteholders exercise of remedies after the occurrence and during the continuance of a Specified Event of Default. The provisions of Section 11.2(b) shall
not impair or waive in whole or in part: (i) the validity of the Notes, the Operative Documents or the Liens on the Collateral under the Pledge Agreement, (ii) the remedies of the Collateral Agent and the Noteholders under the Pledge
Agreement or otherwise in respect of the Collateral, (iii) the remedies of the Collateral Agent and the Noteholders in respect of any Full Recourse Obligations, (iv) the Collateral Agents and the Noteholders rights to name any
Note Party as a defendant in any action or proceeding to implement any such remedies, provided however that any enforcement of any claim against such Note Party shall remain subject to the limitations provided in Section 11.2(b); or
(v) the Collateral Agent and the Noteholders right to obtain a deficiency judgment if procedurally necessary to enforce any such remedy, provided however that any enforcement of such judgment against any Note Party shall remain subject to
Section 11.2(b). Notwithstanding anything to the contrary in any Operative Document or this Section 11.2, nothing herein shall waive, or be deemed to waive, any right of the Collateral Agent or the Noteholders: (x) under Bankruptcy
Code Sections 506(a), 506(b) or 1111(b), or any other provision of the Bankruptcy Code, to file a claim for all Obligations; or (y) to require that all Collateral at all times secure all Obligations.
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Portions of this Exhibit were omitted and have been filed separately with the Secretary of the Commission pursuant to the Companys application requesting confidential treatment under Rule 24b-2 of the Exchange Act;
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Section 11.3 Rescission. At any time after amounts have been declared due and payable
pursuant to Section 11.1, the Collateral Agent or the Required Holders, by written notice to the Issuer, may rescind and annul any such declaration and its consequences if all Events of Default, other than non-payment of amounts that have
become due solely, by reason of such declaration, have been cured or have been waived pursuant to Article XIV and no judgment or decree has been entered for the payment of any monies due pursuant to the Operative Documents or to the Notes. No
rescission and annulment under this Section 11.3 will extend to or affect any subsequent Event of Default or Default or impair any right consequent thereon.
Section 11.4 No Waivers or Election of Remedies, Etc. No course of dealing and no delay on the part of the Collateral Agent or any
Noteholder in exercising any right, power or remedy shall operate as a waiver thereof or otherwise prejudice the Collateral Agent or such Noteholders rights, powers or remedies. No right, power or remedy conferred by any Operative Document or
by any Note upon the Collateral Agent or any Noteholder shall be exclusive of any other right, power or remedy referred to herein or therein or now or hereafter available at law, in equity, by statute or otherwise. The rights and remedies of the
Noteholders and the Collateral Agent are cumulative and in addition to, and not exclusive of, all other rights and remedies available at law, in equity or otherwise.
ARTICLE XII
REGISTRATION;
EXCHANGE; SUBSTITUTION OF NOTES
Section 12.1 Registration of Notes. The Issuer shall keep at its principal executive
office a register for the registration and registration of transfers of the Notes. The name and address of each Noteholder, each transfer thereof, the name and address of each transferee of one or more Notes, the CUSIP number of such Notes and a
separate identification number for such Notes (if applicable) shall be registered in such register. Prior to due presentment for registration of transfer, the Person in whose name any Note shall be registered shall be deemed and treated as the owner
and holder thereof for all purposes hereof, and the Issuer shall not be affected by any notice or knowledge to the contrary.
Section 12.2 Transfer and Exchange of Notes. Upon surrender of any Note to the Issuer at the address and to the attention of the
designated officer (all as specified in Section 16.4) for registration of transfer or exchange (and in the case of a surrender for registration of transfer accompanied by a written instrument of transfer duly executed by the registered holder
of such Note or such registered holders attorney duly authorized in writing, accompanied by the relevant name, address and other information for notices of each transferee of such Note or part thereof, accompanied by any other evidence of
satisfaction with the restrictions and requirements applicable to transfers of the Notes as reasonably requested by the Issuer), within ten Business Days thereafter, the Issuer shall execute and deliver, at the Issuers expense (except as
provided below), one or more new Notes (as requested by the Noteholder thereof) in exchange therefor, in a face amount equal to the face amount of the surrendered Note. Each such new Note shall be payable to such Person as such Noteholder may
request and shall be substantially in the form of Exhibit B. The Issuer may require payment of a sum sufficient to cover any stamp Tax imposed
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in respect of any such transfer of Notes. Notes shall not be transferred in denominations of less than $250,000 face amount (unless transferred in whole). Any transferee, by its acceptance of a
Note registered in its name (or the name of its nominee), shall be deemed to have made the representations set forth in Article IV and to have accepted and fully assumed all obligations under this Agreement, but excluding, unless expressly agreed by
the transferee, any commitment to purchase Additional Notes. Any transfer of the Notes in violation of the restrictions in this Agreement (including Section 4.1) and the legend regarding transfers of Notes, in each case purchasing the Notes for
its own account, in each case, shall be void ab initio and the purported transferee in such transfer shall not be recognized by the Issuer or any other Person as having an interest in the Issuer or any Note (as the case may be) for any purpose.
Section 12.3 Substitution of Notes. Upon receipt by the Issuer at the address and to the attention of the designated officer (all
as specified in Section 17.4) of notice to it of the ownership of and the loss, theft, destruction or mutilation of any Note, and, in the case of loss, theft or destruction, of indemnity reasonably satisfactory to it, or, in the case of
mutilation, upon surrender and cancellation thereof, within ten Business Days thereafter, the Issuer at its own expense shall execute and deliver, in lieu thereof, a new Note, dated the date of such lost, stolen, destroyed or mutilated Note.
ARTICLE XIII
THE COLLATERAL
AGENT
Section 13.1 Appointment and Authority. Each of the Purchasers (and each subsequent Noteholder by acceptance of a
Note) hereby irrevocably appoints Oberland Capital SA Zermatt LLC to act on its behalf as the Collateral Agent hereunder and under the other Operative Documents and authorizes the Collateral Agent to take such actions on its behalf and to exercise
such powers as are delegated to the Collateral Agent by the terms hereof or thereof, together with such actions and powers as are reasonably incidental thereto. Except for the last paragraph of Section 13.9, the provisions of this Article XIII
are solely for the benefit of the Collateral Agent and the Noteholders, and neither the Issuer nor any other Note Party shall have rights as a third party beneficiary of any of such provisions. The Collateral Agent accepts its appointment as
collateral agent and agrees to execute its duties and obligations hereby created upon the terms and conditions specifically set forth herein and in the Pledge Agreement and any Account Control Agreement, and no implied agreements, covenants or
obligations with respect to the Company, any Affiliate of the Company, any Noteholder or any other party shall be read into this Agreement, the Pledge Agreement or any Account Control Agreement against the Collateral Agent. The Collateral Agent
shall have no responsibility for the terms of the Operative Documents. The Collateral Agent in its capacity as such is not a fiduciary of, and shall not owe or be deemed to owe any fiduciary duty to, the Noteholders, whether before or after the
occurrence of an Event of Default.
Section 13.2 Rights as a Noteholder. To the extent the Person serving as the Collateral
Agent holds any Notes, such Person shall have the same rights and powers in its capacity as a Noteholder or Purchaser as any other Noteholder or Purchaser and may exercise the same as
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though it were not the Collateral Agent and the terms Purchaser, Noteholder, Purchasers or Noteholders shall, unless otherwise expressly indicated
or unless the context otherwise requires, include the Person serving as the Collateral Agent hereunder in its individual capacity. Such Person and its Affiliates may lend money to, own securities of, act as the financial advisor or in any other
advisory capacity for and generally engage in any kind of business with any Note Party or any Subsidiary or other Affiliate thereof as if such Person were not the Collateral Agent hereunder and without any duty to account therefor to the
Noteholders.
Section 13.3 Duties.
(a) Specific Duties of The Collateral Agent. The Collateral Agent shall:
(i) upon the receipt by it of written instructions of the Required Holders, execute and deliver on behalf of the Noteholders such documents
or instruments as described in such instructions from time to time to maintain the perfection of any lien in, to or upon the Collateral or any portion thereof, which liens have been, are or will be granted pursuant to the Pledge Agreement;
(ii) accept, on behalf of the Noteholders, any part of the Collateral delivered to it, including any certificated securities, and accept, on
behalf of the Noteholders, any new Collateral given as security for the obligations secured by the Pledge Agreement, which Collateral may be delivered for safekeeping to third-party custodians and, upon the receipt of written instructions of the
Required Holders, execute and deliver, on behalf of the Noteholders, such documents or instruments evidencing the creation of any lien with respect thereto and perfecting such lien as shall be set forth in such instructions;
(iii) release the Collateral or any portion thereof from any liens thereon that were created pursuant to the Pledge Agreement if such release
is in compliance with the terms of the Pledge Agreement or Section 13.9 of this Agreement or as instructed in writing by the Required Holders;
(iv) furnish the Noteholders, promptly upon written request of the Required Holders, duplicates of all reports, notices, requests, demands,
certificates and other documents received by the Collateral Agent under the Operative Documents or any instrument or document entered into pursuant hereto or thereto unless any such document shall state thereon that it has previously been furnished
directly to the Noteholders, provided that the Collateral Agent has no duty to obtain such duplicates or otherwise monitor the Companys production of information;
(v) upon receipt by it of written instructions from the Required Holders, but subject to Section 13.3(c), take such action as set forth
in such instructions to protect and preserve the Collateral and, if a Specified Event of Default has occurred and is continuing, realize on and foreclose upon the Collateral, including exercising any powers or any of the remedies described in the
Pledge Agreement; and
(vi) take, or refrain from taking, such other actions (but only such actions that are set forth in this Agreement)
as the Required Holders shall from time to time direct by written instructions to the Collateral Agent.
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(b) Duties Limited. The Collateral Agent shall not be required to take any discretionary
action or exercise any discretionary powers hereunder or under the Pledge Agreement, and, except as expressly provided herein, in the Pledge Agreement or in written instructions of the Required Holders, but in each case subject to
Section 13.3(c), the Collateral Agent shall not have any duty or obligation, express or implied, to:
(i) manage, control, use,
maintain, sell, dispose of, purchase, foreclose upon, take possession of, bid for or otherwise deal with the Collateral or any portion thereof, or to otherwise take or refrain from taking any action under or in connection with this Agreement, the
Pledge Agreement or any Account Control Agreement, except to the extent required by law;
(ii) take any action that relates to,
materially affects or impairs the amounts that the Noteholders may recover from disposition of the Collateral, including (A) any election or waiver of remedies available under the Pledge Agreement or with respect to the Collateral or the manner
of foreclosure upon the same, (B) any determination of the order and timing of foreclosure upon any portion of the Collateral or of the amount of any credit bid to be entered at any public or private, judicial or nonjudicial sale of the
Collateral, (C) the pursuit of any remedies against the Company following the completion of foreclosure upon the Collateral or (D) the compromise or settlement of any claims against the Company, including the conduct of any negotiations
relating to the same or with a view toward the termination of any pending foreclosure proceedings;
(iii) obtain or maintain insurance on
the Collateral or any other insurance;
(iv) pay or discharge any tax, assessment or other governmental charge or any lien or encumbrance
of any kind owing with respect to, or assessed or levied against, any part of the Collateral;
(v) take any action or omit to take any
action not expressly provided for in the Pledge Agreement and documents related thereto and executed in connection therewith; or
(vi)
take any action or omit to take any action to perfect or insure priority for the security interest granted by the Pledge Agreement, including filing any financing or continuation statements or recording any documents or instruments in any public
office at any time or times; provided, that the Collateral Agent shall have no responsibility to monitor or verify the filing of any financing statements (or amendments or continuations thereto) and shall have no responsibility for the information
contained therein.
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(c) Indemnity. In addition to and not in limitation of the provisions of
Section 13.3(b), under no circumstances shall the Collateral Agent have any duty or obligation to take any actions hereunder, even if instructed to do so by the Required Holders, if the Collateral Agent determines, in its sole and absolute
discretion, that such actions would subject it to liability or expense for which indemnity or security satisfactory to it has not been provided hereunder or otherwise or would be contrary to this Operative Documents or applicable law.
(d) Reasonable Care. Notwithstanding anything to the contrary herein, the Collateral Agents sole duty with respect to the
custody, safekeeping and physical preservation of the Collateral in its possession, under the UCC or otherwise, shall be to deal with it in the same manner as the Collateral Agent deals with similar property for its own account, and the Collateral
Agent shall be deemed to have exercised reasonable care in the custody and preservation of the Collateral in its possession if the Collateral is accorded treatment substantially equal to that which comparable secured parties accord comparable
collateral.
(e) Written Instructions. The Collateral Agent may at any time solicit written confirmatory instructions, including
written instructions of the Required Holders or an order of a court of competent jurisdiction, as to any action that it may be requested or required to take or that it may propose to take in the performance of any of its obligations under this
Agreement or the Pledge Agreement and shall be fully justified in failing or refusing to act hereunder or under the Pledge Agreement until it shall have received such requisite instructions, and the Collateral Agent shall have no liability with
respect to any action taken, suffered or omitted in reliance thereon. In the event that the Collateral Agent receives written instructions from the Required Holders that the Collateral Agent determines, in its sole and absolute discretion, to be
ambiguous, inconsistent, in conflict with this Agreement or the Pledge Agreement or otherwise insufficient to direct the actions of the Collateral Agent, then the Collateral Agent shall have no obligation whatsoever to take or refrain from taking
any action pursuant to such written instructions, but may (but shall not be obligated) instead do one or more of the following:
(i) seek
additional written instructions satisfactory to it from the Required Holders, and the Collateral Agent shall have no liability with respect to any action taken, suffered or omitted in reliance thereon;
(ii) resign as Collateral Agent in accordance with this Agreement; or
(iii) at the expense of the Noteholders, which fees and expenses shall be paid in advance, commence an action in a court of competent
jurisdiction requiring the Noteholders to interplead and settle among themselves their rights in and to the Collateral and any proceeds thereof then held by the Collateral Agent.
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Portions of this Exhibit were omitted and have been filed separately with the Secretary of the Commission pursuant to the Companys application requesting confidential treatment under Rule 24b-2 of the Exchange Act;
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Section 13.4 Exculpatory Provisions.
(a) The Collateral Agent shall not have any duties or obligations except those expressly set forth herein and in the other Operative Documents
to which it is a party. Without limiting the generality of the foregoing, the Collateral Agent:
(i) shall not be subject to any
fiduciary or other implied duties, regardless of whether a Default or Event of Default has occurred and is continuing;
(ii) shall not
have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated hereby or by the other Operative Documents to which it is a party that the Collateral Agent is
required to exercise as directed in writing by the Required Holders (or such other number or percentage of the Noteholders as shall be expressly provided for herein or in such other Operative Documents), provided that the Collateral Agent shall not
be required to take any action that, in its opinion or the opinion of its counsel, may expose the Collateral Agent to liability or that is contrary to any Operative Document or applicable law; and
(iii) shall not, except as expressly set forth herein and in the other Operative Documents to which it is a party, have any duty to disclose,
and shall not be liable for the failure to disclose, any information relating to any Note Party or any of its Affiliates that is communicated to or obtained by the Person serving as the Collateral Agent or any of its Affiliates in any capacity.
(b) The Collateral Agent shall not be liable for any action taken or not taken by it (i) with the consent or at the request of the
Required Holders (or such other number or percentage of the Noteholders as shall be necessary, or as the Collateral Agent shall believe in good faith shall be necessary, under the circumstances as provided in Article XIV) or (ii) in the absence
of its own gross negligence or willful misconduct as determined by a court of competent jurisdiction by final and nonappealable judgment. The Collateral Agent shall be deemed not to have knowledge of any Default or Event of Default unless and until
notice describing such Default or Event of Default is given to the Collateral Agent in writing by the Issuer or a Noteholder.
(c) The
Collateral Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with this Agreement or any other Operative Document, (ii) the contents of
any certificate, report or other document delivered hereunder or thereunder or in connection herewith or therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth herein or therein
or the occurrence of any Default or Event of Default, (iv) the validity, enforceability, effectiveness or genuineness of this Agreement, any other Credit Document or any other agreement, instrument or document or (v) the satisfaction of
any condition set forth in Article VI or elsewhere herein, other than to confirm receipt of items expressly required to be delivered to the Collateral Agent.
Section 13.5 Reliance by Collateral Agent. The Collateral Agent shall be entitled to rely upon, and shall not incur any liability
for relying upon, any notice, request, certificate,
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consent, statement, instrument, document or other writing (including any electronic message, internet or intranet website posting or other distribution) believed by it to be genuine and to have
been signed, sent or otherwise authenticated by the proper Person. The Collateral Agent also may rely upon any statement made to it orally or by telephone and believed by it to have been made by the proper Person, and shall not incur any liability
for relying thereon. The Collateral Agent may consult with legal counsel, independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel,
accountants or experts.
Section 13.6 Delegation of Duties. The Collateral Agent may perform any and all of its duties and
exercise its rights and powers hereunder or under any other Credit Document by or through any one or more sub-agents appointed by the Collateral Agent. The Collateral Agent and any such sub-agent may perform any and all of its duties and exercise
its rights and powers by or through their respective Related Parties. The exculpatory provisions of this Article shall apply to any such sub-agent and to the Related Parties of the Collateral Agent and any such sub-agent. The Collateral Agent shall
not be responsible for the negligence or misconduct of any sub-agent except to the extent that a court of competent jurisdiction determines in a final and nonappealable judgment that the Collateral Agent acted with gross negligence or willful
misconduct in the selection of such sub-agent.
Section 13.7 Resignation of Collateral Agent. The Collateral Agent may at any
time give notice of its resignation to the Noteholders and the Issuer. Upon the receipt of any such notice of resignation, the Required Holders shall have the right, in consultation with the Issuer so long as no Default has occurred and is
continuing, to appoint a successor. If no successor shall have been so appointed by the Required Holders and shall have accepted such appointment within 30 days after the retiring Collateral Agent gives notice of its resignation, then the retiring
Collateral Agent may, on behalf of the Noteholders, appoint a successor Collateral Agent; provided that, whether or not a successor has been appointed or has accepted such appointment, such resignation shall become effective upon delivery of the
notice thereof. Upon the acceptance of a successors appointment as Collateral Agent hereunder, such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring (or retired) Collateral
Agent, and the retiring Collateral Agent shall be discharged from all of its duties and obligations under the Credit Documents (if not already discharged therefrom as provided above in this Section 13.6). After the retiring Collateral
Agents resignation, the provisions of this Article XIII and Section 16.13 shall continue in effect for the benefit of such retiring Collateral Agent, its sub-agents and their respective Related Parties in respect of any actions taken or
omitted to be taken by any of them while the retiring Collateral Agent was acting as Collateral Agent. Upon any resignation by the Collateral Agent, all payments, communications and determinations provided to be made by, to or through the Collateral
Agent shall instead be made by, to or through each Noteholder directly, until such time as a Person accepts an appointment as Collateral Agent in accordance with this Section 13.6.
Section 13.8 Non-Reliance on Collateral Agent and Other Noteholders. Each Noteholder acknowledges that it has, independently and
without reliance upon the Collateral
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Agent or any other Noteholder or any of their Related Parties and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into
this Agreement and purchase the Notes hereunder. Each Noteholder also acknowledges that it will, independently and without reliance upon the Collateral Agent or any other Noteholder or any of their Related Parties and based on such documents and
information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any other Credit Document or any related agreement or any document furnished hereunder
or thereunder.
Section 13.9 Collateral and Guaranty Matters. Each Noteholder agrees that any action taken by the Collateral
Agent or the Required Holders in accordance with the provisions of this Agreement or of the other Credit Documents, and the exercise by the Collateral Agent or Required Holders of the powers set forth herein or therein, together with such other
powers as are reasonably incidental thereto, shall be authorized and binding upon all of the Noteholders. Without limiting the generality of the foregoing, the Noteholders irrevocably authorize the Collateral Agent, at its option and in its
discretion:
(a) to release any Lien on any property granted to or held by the Collateral Agent under any Operative Document (A) upon
discharge of the Obligations, and (B) subject to Article XIV, if approved, authorized or ratified in writing by the Required Holders;
(b) to enter into any intercreditor agreement with respect to a Permitted Royalty Financing; and
(c) to release any Subsidiary Guarantor from its obligations under the Guaranty to which it is a party to if such Person ceases to be a
Subsidiary as a result of a transaction permitted hereunder.
In each case as specified in this Section 13.9, the Collateral Agent will (and each
Noteholder irrevocably authorizes the Collateral Agent to), at the Note Partys expense, execute and deliver to the applicable Note Party such documents as such Note Party may reasonably request (i) to evidence the release of such item of
Collateral from the assignment and security interest granted under the Operative Documents, or (ii) to evidence the release of such Subsidiary Guarantor from its obligations under the Guaranty, in each case in accordance with the terms of the
Operative Documents and this Section 13.9 and in form and substance reasonably acceptable to the Collateral Agent. The Collateral Agent shall deliver to the Noteholders notice of any action taken by it under this Section 13.9 as soon as
reasonably practicable after the taking thereof; provided, that delivery o or failure to deliver any such notice shall not affect the Collateral Agents rights, powers, privileges and protections under this Article XIII.
Section 13.10 Reimbursement by Noteholders. To the extent that the Issuer for any reason fails to indefeasibly pay any Expenses or
Costs required to be paid by it to the Collateral Agent (or any sub-agent thereof) or any Related Party of any of the foregoing, each Noteholder severally agrees to pay to the Collateral Agent (or any such sub-agent) or such Related Party, as the
case may be, such Noteholders pro rata share (based upon the percentages as used in
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determining the Required Holders as of the time that the applicable unreimbursed expense or indemnity payment is sought) of such unpaid amount; provided that the unreimbursed expense or
indemnified loss, damage, liability or related expense, as the case may be, was incurred by or asserted against the Collateral Agent (or any such sub-agent) in its capacity as such or against any Related Party of any of the foregoing acting for the
Collateral Agent (or any sub-agent) in connection with such capacity.
ARTICLE XIV
AMENDMENT AND WAIVER
Section 14.1 Requirements. The Operative Documents may be amended, and the observance of any term hereof or thereof may be waived
(either retroactively or prospectively), with (and only with) the written consent of the Note Parties and the Required Holders (and the Collateral Agent, as applicable), except (a) that the written consent of all Noteholders will be required in
connection with any proposed release of all or substantially all of the Collateral (other than as expressly provided for in the Operative Documents) from the Liens thereon and (b) that no such amendment or waiver may, without the written
consent of each Noteholder affected thereby, (i) subject to the provisions of Article XI relating to acceleration or rescission, change the amount or time of any payment on the Notes, (ii) change the percentage of the aggregate face amount
of the Notes the Noteholders of which are required to consent to any such amendment or waiver or (iii) amend this Article XIV. Notwithstanding the foregoing, the Issuer and the Collateral Agent (as applicable) may amend the Operative Documents
without notice to or consent of any Noteholder (A) to cure any ambiguity, omission, mistake, defect or inconsistency, (B) to add guarantees with respect to the Notes, (C) to add to the covenants of any Note Party for the benefit of
the Noteholders or to surrender any right or power conferred in the Operative Documents upon any Note Party, (D) to make any change that does not adversely affect the rights of any Noteholder or (E) to add additional assets as Collateral
to secure the Notes.
Section 14.2 Copies of Amendments, Waivers and Consents. The Issuer will deliver executed or true and
correct copies of each amendment, waiver or consent effected pursuant to the provisions of this Article XIV to each Noteholder of outstanding Notes promptly following the date on which it is executed and delivered by, or receives the consent or
approval of, the requisite Noteholders.
Section 14.3 Binding Effect, Etc. Any amendment or waiver consented to as provided in
this Article XIV applies equally to all Noteholders and is binding upon them and upon each future Noteholder and upon the Issuer without regard to whether such Note has been marked to indicate such amendment or waiver or whether the amendment or
waiver or any provision thereof has been executed by any Noteholder. No such amendment or waiver will extend to or affect any obligation, covenant, agreement, Default or Event of Default not expressly amended or waived or impair any right consequent
thereon. No course of dealing between the Issuer and any Noteholder or any delay in exercising any rights under the Agreements or any Note shall operate as a waiver of any rights of any Noteholder.
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Section 14.4 Notes Held by Issuer, Etc. Solely for the purpose of determining whether
the Noteholders of the requisite percentage of the aggregate face amount of Notes then outstanding approved or consented to any amendment, waiver or consent to be given under the Operative Documents, or have directed the taking of any action
provided herein or therein to be taken upon the direction of the Noteholders of a specified percentage of the aggregate principal amount of all Notes then outstanding, Notes directly or indirectly owned by any Note Party or any of its Affiliates
shall be deemed not to be outstanding (unless the Note Parties or such Affiliates own 100% of the aggregate face amount of all Notes then outstanding).
ARTICLE XV
TAX MATTERS
Section 15.1 Statement to Noteholders. At such times as required by Applicable Law, the Issuer shall furnish to each
Person that at any time during such calendar year was a Noteholder, a statement (such statement to be in the form of an IRS Form 1099, IRS Form 1042- S or any other means required by Applicable Law) prepared by the Issuer and containing the original
issue discount paid with respect to the Notes for such calendar year or, in the event such Person was a Noteholder during only a portion of such calendar year, for the applicable portion of such calendar year, and such other items as are readily
available to the Issuer and that a Noteholder shall reasonably request as necessary for the purpose of such Noteholders preparation of its U.S. federal income tax returns or other tax returns.
Section 15.2 Withholding. Each Noteholder shall deliver to the Issuer and the Collateral Agent (1) a properly completed IRS
Form W-9 or W-8ECI, (2) a properly completed IRS Form W-8BEN or W-8BEN-E establishing an exemption from U.S. federal withholding tax pursuant to the interest article of an income tax treaty to which the United States is a party,
(3) a properly completed IRS Form W-8BEN or W-8BEN-E together with a certificate substantially in the form of Exhibit F-1, or (4) a properly completed IRS Form W-8IMY together with the documentation described in (1), (2) or
(3) for each beneficial owner (it being understood that the Noteholder may provide a certificate substantially in the form of Exhibit F-2 on behalf of each such beneficial owner). Unless otherwise required by Applicable Law, the Issuer
shall treat, and shall direct Collateral Agent to treat, all interest (including PIK Amounts) paid on the Notes as eligible for the exemption from U.S. federal withholding tax under Section 871(h) of the Code or Section 881(c) of the Code
with respect to payments of portfolio interest and, provided that a Noteholder has satisfied the certification requirements set forth in the foregoing sentence of this Section 15.2, the Issuer shall make, and shall direct the
Collateral Agent to make, all payments (including interest and capitalized interest) to such Noteholder without deduction or withholding for any Taxes. If the Issuer or the Collateral Agent is required to deduct or withhold any Taxes from any such
payment (including interest and capitalized interest) on the Notes to a Noteholder under Applicable Law, the Issuer shall: (a) be entitled to make such deduction or withholding and shall timely pay the full amount deducted or withheld to the
relevant Tax authority in accordance with Applicable Law (provided, however, that the Collateral Agent may take the actions set forth in this subclause (a) if the Collateral Agent is required by law to do so and the
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Issuer has failed to do so) and (b) increase the sum payable by the Issuer as necessary so that after such deduction or withholding has been made (including such deductions and withholdings
applicable to additional sums payable under this Section 15.2) the applicable Noteholder receives an amount equal to the sum it would have received had no such deduction or withholding been made in respect of Indemnified Taxes. The Issuer shall
provide proof to the Collateral Agent and the Noteholders of any amounts withheld and remitted to any Governmental Authority after such withholding has taken place. The Issuer shall indemnify such Noteholder and the Collateral Agent, as applicable,
within ten (10) days demand therefor for the full amount of any Indemnified Taxes that are payable or paid by such Noteholder or the Collateral Agent, as applicable, or required to be withheld or deducted from a payment to such Noteholder, with
respect to amounts (including PIK Amounts) paid or payable on a Note, and shall indemnify the Collateral Agent for any Taxes that are payable or paid by the Collateral Agent in connection with its performance as Collateral Agent under this
Agreement, in each case including any reasonable expenses arising therefrom or with respect thereto, whether or not such Taxes were correctly or legally imposed or asserted. A certificate as to the amount of such payment or liability delivered to
the Issuer by a Noteholder or the Collateral Agent, as applicable, shall be conclusive absent manifest error.
Section 15.3
Determinations and Responsibilities. Consistent with this Article 15, the Issuer shall be the party responsible for determining and complying with the requirements of the Internal Revenue Service and applicable state and local tax laws with
respect to reporting and withholding on the Noteholder, subject to the Issuers covenant in Section 15.2 to treat all interest (including PIK Amounts) paid on the Notes as eligible for the exemption from U.S. federal withholding tax under
Section 871(h) of the Code or Section 881(c) of the Code with respect to payments of portfolio interest. In furtherance of the foregoing, the Issuer shall inform the Collateral Agent with respect to any and all tax withholding
undertaken by the Issuer in connection with amounts held in the Collection Account and the Issuer shall timely and properly file all information returns required to be filed in respect of payments made on the Notes (including, but not limited to,
IRS Form 1099 and IRS Form 1042, as applicable). The Note Parties, the Purchasers and each Person who is from time to time a Noteholder shall treat the Notes as securities for all purposes, including securities laws and U.S. federal income tax
purposes.
Section 15.4 Survival. The obligations of the Issuer under this Article XV will survive the payment or transfer of
any Note, the enforcement, amendment or waiver of any provision of the Operative Documents and the termination of this Agreement.
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ARTICLE XVI
THE GUARANTEE
Section 16.1
The Guarantee. Each Guarantor hereby absolutely, unconditionally, and irrevocably guarantees:
(a) the due and prompt payment in
full when due (whether at stated maturity, by acceleration or otherwise) of the obligations of the Issuer from time to time in respect of the Contingent Make-Whole Payment, the Put Price of any Put Notes, any Default Amount, the Expenses and
Indemnities when and as due, whether at maturity, by acceleration, upon one or more dates set for payment or otherwise;
(b) the due and
prompt payment in full when due of the Redemption Price upon the exercise by the Issuer of its rights under Section 8.3;
(c) the due
and prompt payment and performance in full of the obligations of the other Note Parties relating to, arising from or caused by, or an account of (X) a breach by such other Note Party of any Operative Document (but only if any of those
Specified Event(s) of Default set forth in Section 10.1(a), 10.1(b), 10.1(c), 10.1(d) or 10.1(g) occurs with respect to such matters), (Y) any diversion or application of Counterparty Payments in violation of the Operative Documents or the
incurrence or existence of any Liens (other than Permitted Encumbrances) on the Collateral, and (Z) any willful misconduct or fraudulent conduct in the issuance and sale of the Notes (all such obligations in clauses (a) through (c),
whether now or hereafter existing, being referred to as the Guaranteed Obligations);
provided that upon (A) a Change of Control,
(B) the conveyance by the Issuer of any Collateral (other than the grant of any Permitted Encumbrance under clause (vi) of the definition thereof), (C) the encumbrance by the Issuer of any Collateral in violation of the terms of this
Agreement, (D) a Voluntary Bankruptcy or Involuntary Bankruptcy of the Parent or the Issuer (except to the extent arising out of a failure to pay any Limited Recourse Obligations on the Final Legal Maturity Date), (E) any Note Party
contests or opposes any motion by Collateral Agent or the Noteholders for bankruptcy stay or other relief, (F) the occurrence and during the continuance of any of those Specified Event(s) of Default set forth in Section 10.1(a), 10.1(c),
10.1(d), 10.1(e) or 10.1(g), or (G) any Note Party initiates action to contest Collateral Agents or the Noteholders exercise of remedies after the occurrence and during the continuance of a Specified Event of Default, the Guaranteed
Obligations of each Guarantor shall include all of the Obligations of the Issuer and the other Note Parties (other than the obligations of such other Note Parties under this Article XVI).
Without limiting the generality of the foregoing, each Guarantors liability shall extend to all amounts that constitute part of the
Guaranteed Obligations and would be owed by any other Note Party to the Collateral Agent or any Noteholder under or in respect of the Operative Documents but for the fact that they are unenforceable or not allowable due to the existence of a
bankruptcy, reorganization or similar proceeding involving such other Note Party.
Section 16.2 Obligations Unconditional. The
obligations of the Guarantors under Section 16.1 are absolute and unconditional, joint and several, irrespective of the value, genuineness, validity, regularity or enforceability of the obligations of Issuer and the other Note Parties under
this Agreement (other than this Article XVI) and the other Operative Documents or any other agreement or instrument referred to herein, or any substitution, release or exchange of any other guarantee of or security for any of the Guaranteed
Obligations or the Obligations, and,
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to the fullest extent permitted by applicable law, irrespective of any other circumstance whatsoever that might otherwise constitute a legal or equitable discharge or defense of a surety or
guarantor, it being the intent of this Section 16.2 that the obligations of the Guarantors hereunder shall be absolute and unconditional, joint and several, under any and all circumstances. Without limiting the generality of the foregoing, it
is agreed that the occurrence of any one or more of the following shall not alter or impair the liability of the Guarantors hereunder, which shall remain absolute and unconditional as described above:
(a) at any time or from time to time, without notice to the Guarantors, the time for any performance of or compliance with any of the
Obligations shall be extended, or such performance or compliance shall be waived;
(b) any of the acts mentioned in any of the provisions
of this Agreement or any other agreement or instrument referred to herein shall be done or omitted;
(c) the maturity of any of the
Obligations shall be accelerated, or any of the Obligations shall be modified, supplemented or amended in any respect, or any right under this Agreement or any other agreement or instrument referred to herein shall be waived or any other guarantee
of any of the Obligations or any security therefor shall be released or exchanged in whole or in part or otherwise dealt with; or
(d) any
lien or security interest granted to, or in favor of, the Collateral Agent for the benefit of the Noteholders as security for any of the Obligations shall fail to be perfected.
The Guarantors hereby expressly waive diligence, presentment, demand of payment, protest and all notices whatsoever, and any requirement that
the Collateral Agent or any Noteholder exhaust any right, power or remedy or proceed against the Issuer or any other Note Party under the Operative Documents or any other agreement or instrument referred to herein, or against any other Person under
any other guarantee of, or security for, any of the Obligations.
Section 16.3 Reinstatement. The obligations of the
Guarantors under this Article XVI shall be automatically reinstated if and to the extent that for any reason any payment by or on behalf of Issuer or any Note Party in respect of the Guaranteed Obligations is rescinded or must be otherwise restored
by any holder of any of the Guaranteed Obligations, whether as a result of any proceedings in bankruptcy or reorganization or otherwise, and the Guarantors jointly and severally agree that they will indemnify the Collateral Agent and the Noteholders
on demand for all reasonable costs and expenses (including fees of counsel) incurred by the Collateral Agent and the Noteholders in connection with such rescission or restoration, including any such costs and expenses incurred in defending against
any claim alleging that such payment constituted a preference, fraudulent transfer or similar payment under any bankruptcy, insolvency or similar law (collectively, Expenses).
Section 16.4 Subrogation. The Guarantors hereby jointly and severally agree that until the payment and satisfaction in full of all
Obligations (other than inchoate Indemnification Obligations) and the expiration and termination of the commitment of the Purchasers under this
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Agreement to purchase Additional Notes they shall not exercise any right or remedy arising by reason of any performance by them of their guarantee in Section 16.1, whether by subrogation or
otherwise, against the Issuer, any Note Party or any other guarantor of any of the Obligations or any security for any of the Obligations.
Section 16.5 Remedies. The Guarantors jointly and severally agree that, as between the Guarantors, on one hand, and the Collateral
Agent and the Noteholders, on the other hand, the Obligations of the Issuer under the Operative Documents may be declared to be forthwith due and payable as provided in Article XI (and shall be deemed to have become automatically due and payable in
the circumstances provided in Article XI) for purposes of Section 16.1 notwithstanding any stay, injunction or other prohibition preventing such declaration (or such Obligations from becoming automatically due and payable) as against the Issuer
and that, in the event of such declaration (or such Obligations being deemed to have become automatically due and payable), to the extent such Obligations (whether or not due and payable by the Issuer) constitute Guaranteed Obligations, such
Obligations shall forthwith become due and payable by the Guarantors for purposes of Section 16.1.
Section 16.6 Instrument
for the Payment of Money. Each Guarantor hereby acknowledges that the guarantee in this Article XV constitutes an instrument for the payment of money, and consents and agrees that the Collateral Agent and the Noteholders, at their sole
option, in the event of a dispute by such Guarantor in the payment of any moneys due hereunder, shall have the right to proceed by motion for summary judgment in lieu of complaint pursuant to N.Y. Civ. Prac. L&R § 3213.
Section 16.7 Continuing Guarantee. The guarantee in this Article XVI is a continuing guarantee, and shall apply to all Guaranteed
Obligations whenever arising.
Section 16.8 Rights of Contribution. The Guarantors hereby agree, as between themselves, that
if any Guarantor shall become an Excess Funding Guarantor (as defined below) by reason of the payment by such Guarantor of any Guaranteed Obligations, each other Guarantor shall, on demand of such Excess Funding Guarantor (but subject to the next
sentence), pay to such Excess Funding Guarantor an amount equal to such Guarantors Pro rata Share (as defined below and determined, for this purpose, without reference to the properties, debts and liabilities of such Excess Funding
Guarantor) of the Excess Payment (as defined below) in respect of such Guaranteed Obligations. The payment obligation of a Guarantor to any Excess Funding Guarantor under this Section 16.8 shall be subordinate and subject in right of payment to
the prior payment in full of the obligations of such Guarantor under the other provisions of this Article XVI and such Excess Funding Guarantor shall not exercise any right or remedy with respect to such excess until payment and satisfaction in full
of all of such obligations.
For purposes of this Section 16.8, (i) Excess Funding Guarantor means, in
respect of any Guaranteed Obligations, a Guarantor that has paid an amount in excess of its Pro rata Share of such Guaranteed Obligations, (ii) Excess Payment means, in respect of any Guaranteed Obligations, the amount
paid by an Excess Funding Guarantor in excess of its Pro rata Share of such Guaranteed Obligations and (iii) Pro Rata Share means, for any Guarantor, the ratio
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Portions of this Exhibit were omitted and have been filed separately with the Secretary of the Commission pursuant to the Companys application requesting confidential treatment under Rule 24b-2 of the Exchange Act;
[
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] denotes omissions. |
(expressed as a percentage) of (x) the amount by which the aggregate present fair saleable value of all properties of such Guarantor (excluding any shares of stock of any other Guarantor)
exceeds the amount of all the debts and liabilities of such Guarantor (including contingent, subordinated, unmatured and unliquidated liabilities, but excluding the obligations of such Guarantor hereunder and any obligations of any other Guarantor
that have been Guaranteed by such Guarantor) to (y) the amount by which the aggregate fair saleable value of all properties of all of the Guarantors exceeds the amount of all the debts and liabilities (including contingent, subordinated,
unmatured and unliquidated liabilities, but excluding the obligations of Issuer and the Guarantors under the Operative Documents) of all of the Guarantors, determined (A) with respect to any Guarantor that is a party hereto at the Closing, as
of the date of the Closing, and (B) with respect to any other Guarantor, as of the date such Guarantor becomes a Guarantor hereunder.
Section 16.9 General Limitation on Guarantee Obligations. In any action or proceeding involving any provincial, territorial or
state corporate law, or any state or federal bankruptcy, insolvency, reorganization or other law affecting the rights of creditors generally, if the obligations of any Subsidiary Guarantor under Section 16.1 would otherwise, taking into account
the provisions of Section 16.8, be held or determined to be void, invalid or unenforceable, or subordinated to the claims of any other creditors, on account of the amount of its liability under Section 16.1, then, notwithstanding any other
provision hereof to the contrary, the amount of such liability shall, without any further action by such Subsidiary Guarantor, the Noteholders or any other Person, be automatically limited and reduced to the highest amount that is valid and
enforceable and not subordinated to the claims of other creditors as determined in such action or proceeding.
Section 16.10
Release of Subsidiary Guarantors. A Subsidiary Guarantor shall automatically be released from its obligations under the Operative Documents upon the consummation of any transactions permitted under the Operative Documents as a result of which
such Subsidiary Guarantor ceases to be a Subsidiary. In addition, upon the FDA Approval Date, each Subsidiary Guarantor shall be automatically released from its obligations under the Operative Documents.
ARTICLE XVII
MISCELLANEOUS
Section 17.1 Successors and Assigns. This Agreement will inure to the benefit of and be binding upon the parties hereto
and their respective successors, permitted registered assignees and permitted registered transferees. So long as any of the Notes are outstanding, no Note Party may assign any of its rights or obligations hereunder or any interest herein without the
prior written consent of the Required Holders.
Section 17.2 Payments Due on Non-Business Days. Anything in this Agreement or
the Notes to the contrary notwithstanding, any payment on any Note that is due on a date other than a Business Day shall be made on the next succeeding Business Day.
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Portions of this Exhibit were omitted and have been filed separately with the Secretary of the Commission pursuant to the Companys application requesting confidential treatment under Rule 24b-2 of the Exchange Act;
[
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] denotes omissions. |
Section 17.3 Expenses. The Note Parties jointly and severally agree to pay or
reimburse (i) the Collateral Agent, the Purchasers and the Noteholders for all of their reasonable out of pocket costs and expenses (including the reasonable fees and expenses of Cooley LLP, special counsel to the Collateral Agent and the
Purchasers, and any sales, goods and services or other similar taxes applicable thereto, and printing, reproduction, document delivery, communication and travel costs) in connection with (x) the negotiation, preparation, execution and delivery
of this Agreement and the other Operative Documents and the purchase of the Original Notes (exclusive of post-closing costs), (y) post-closing costs (including fees, costs and expenses relating to the administration of the Collection Account
and the other Collateral and the costs and expenses of the Collateral Agent incurred in connection with its rights and duties under the Operative Documents and the administration of the Notes and the Operative Documents) and costs relating to the
purchase of the Additional Notes and (z) the negotiation or preparation of any modification, supplement or waiver of any of the terms of this Agreement or any of the other Operative Documents (whether or not consummated) and (ii) the
Collateral Agent and the Noteholders for all of their out of pocket costs and expenses (including the fees and expenses of legal counsel) in connection with any enforcement or collection proceedings resulting from the occurrence of an Event of
Default (collectively, Expenses); provided, however, that the Note Parties shall not be required to pay or reimburse any amounts pursuant to Section 17.3(i)(x) in excess of [
***
]. The obligations of the Note
Parties under this Section 17.3 will survive the payment or transfer of any Note, the enforcement, amendment or waiver of any provision of the Operative Documents and the termination of this Agreement.
Section 17.4 Notices. All notices, claims and other communications hereunder shall be in writing and shall be made by hand
delivery, by registered or certified mail (postage prepaid, return receipt requested), by facsimile or by overnight air courier service guaranteeing next day delivery:
(i) if to the Collateral Agent, to the Collateral Agent, c/o Oberland Capital,
, to the attention of
, facsimile number
, or at such other address or
facsimile number the Collateral Agent shall have specified to the Issuer and the Noteholders in writing,
(ii) if to any Purchaser or its
nominee, to such Purchaser or nominee at the address or facsimile number specified for such notices and communications in Schedule 1 or in the applicable Purchasers Purchaser Addendum, or at such other address or facsimile number as
such Purchaser or nominee shall have specified to the Issuer and the Collateral Agent in writing;
(iii) if to any other Noteholder, to
such Noteholder at such address or facsimile number as such other Noteholder shall have specified to the Issuer and the Collateral Agent in writing; or
(iv) if to the Issuer or any other Note Party, to Antigenics LLC, 3 Forbes Road, Lexington, MA 02421, to the attention of the Chief Financial
Officer, facsimile number or at such other address or facsimile number as the
Issuer shall have
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Portions of this Exhibit were omitted and have been filed separately with the Secretary of the Commission pursuant to the Companys application requesting confidential treatment under Rule 24b-2 of the Exchange Act;
[
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] denotes omissions. |
specified to the Collateral Agent and each Noteholder in writing, with a copy to (which shall not constitute notice) the attention of each of (a) Antigenics LLC, 3 Forbes Road, Lexington, MA
02421, to the attention of the Legal Department, facsimile number (781) 674-4200 and (b) Arthur McGivern at Goodwin Procter LLP, Exchange Place, 53 State Street, Boston, MA 02109, facsimile number (617) 523-1231.
All such notices, claims and other communications shall be deemed to have been duly given: (a) at the time delivered by hand, if made by hand delivery;
(b) three Business Days after deposit into the mails, if made by registered or certified mail (postage prepaid, return receipt requested); (c) when receipt is confirmed, if made by facsimile; and (d) the next Business Day after timely
delivery to the courier, if made by overnight air courier service guaranteeing next day delivery.
Section 17.5 Survival of
Representations and Warranties; Entire Agreement. All representations and warranties contained herein shall survive the execution and delivery of this Agreement and the Notes and, the purchase or transfer by any Noteholder of any Note or portion
thereof and the payment of any Note, and may be relied upon by any subsequent Noteholder. All statements contained in any certificate or other instrument delivered by or on behalf of the Issuer pursuant to this Agreement shall be deemed
representations and warranties of the Issuer under this Agreement, including for purposes of their survival. Subject to the preceding sentence, this Agreement, the other Operative Documents and the Excluded Subsidiary Description embody the entire
agreement and understanding between each Noteholder and the Issuer and supersede all prior agreements and understandings relating to the subject matter hereof.
Section 17.6 Severability. Any provision of this Agreement that is prohibited or unenforceable in any jurisdiction shall, as to
such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof, and any such prohibition or unenforceability in any jurisdiction shall (to the full extent permitted by
Applicable Law) not invalidate or render unenforceable such provision in any other jurisdiction.
Section 17.7 Construction,
Etc. Each covenant contained herein shall be construed (absent express provision to the contrary) as being independent of each other covenant contained herein, so that compliance with any one covenant shall not (absent such an express contrary
provision) be deemed to excuse compliance with any other covenant. Where any provision herein refers to action to be taken by any Person, or that such Person is prohibited from taking, such provision shall be applicable whether such action is taken
directly or indirectly by such Person. For the avoidance of doubt, all Schedules, Annexes and Exhibits attached to this Agreement shall be deemed to be a part hereof.
Section 17.8 Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be an original but
all of which together shall constitute one instrument. Each counterpart may consist of a number of copies hereof, each signed by less than all, but together signed by all, of the parties hereto. Any counterpart may be executed by facsimile or other
electronic transmission, and such facsimile or other electronic transmission shall be deemed an original.
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Portions of this Exhibit were omitted and have been filed separately with the Secretary of the Commission pursuant to the Companys application requesting confidential treatment under Rule 24b-2 of the Exchange Act;
[
***
] denotes omissions. |
Section 17.9 Governing Law. This Agreement shall be construed and enforced in
accordance with, and the rights of the parties shall be governed by, the law of the State of New York, excluding choice-of-law principles of the law of the State of New York that would permit the application of the laws of a jurisdiction other than
the State of New York.
Section 17.10 Jurisdiction and Process; Waiver of Jury Trial.
(a) Each of the parties hereto irrevocably submits to the non-exclusive jurisdiction of any New York State or U.S. federal court sitting in
the Borough of Manhattan, The City of New York, over any suit, action or proceeding arising out of or relating to this Agreement or the other Operative Documents. To the fullest extent permitted by Applicable Law, each of the parties hereto
irrevocably waives and agrees not to assert, by way of motion, as a defense or otherwise, any claim that it is not subject to the jurisdiction of any such court, any objection that it may now or hereafter have to the laying of the venue of any such
suit, action or proceeding brought in any such court and any claim that any such suit, action or proceeding brought in any such court has been brought in an inconvenient forum.
(b) Each of the parties hereto consents to process being served by or on behalf of any Noteholder in any suit, action or proceeding of the
nature referred to in Section 17.10 (a) by mailing a copy thereof to it at its address as specified in Section 17.4. Each of the parties hereto agrees that such service upon receipt (i) shall be deemed in every respect effective
service of process upon it in any such suit, action or proceeding and (ii) shall, to the fullest extent permitted by Applicable Law, be taken and held to be valid personal service upon and personal delivery to it. Notices hereunder shall be
conclusively presumed received as evidenced by a delivery receipt furnished by the United States Postal Service or any reputable commercial delivery service.
(c) Nothing in this Section 17.10 shall affect the right of any party hereto to serve process in any manner permitted by Applicable Law
or limit any right that any party may have to bring proceedings against the other party in the courts of any appropriate jurisdiction or to enforce in any lawful manner a judgment obtained in one jurisdiction in any other jurisdiction.
(d) THE PARTIES HERETO HEREBY WAIVE TRIAL BY JURY IN ANY ACTION BROUGHT ON OR WITH RESPECT TO THIS AGREEMENT, THE NOTES OR ANY OTHER
OPERATIVE DOCUMENT EXECUTED IN CONNECTION HEREWITH OR THEREWITH.
Section 17.11 Confidentiality. Except as otherwise
required by Applicable Law or judicial or administrative proceedings (by oral questions, interrogatories, requests for information or documents, subpoena, civil investigation demand or similar process) or the rules and regulations of any securities
exchange or trading system or any Governmental Authority or pursuant to requests from regulatory agencies having oversight over the Issuer or in connection with the enforcement of any Operative Document or as otherwise set forth in this
Section 17.11, the Issuer will, and will cause each of its Affiliates, directors, officers, employees, agents, representatives and similarly situated persons who receive such information (collectively, its
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Portions of this Exhibit were omitted and have been filed separately with the Secretary of the Commission pursuant to the Companys application requesting confidential treatment under Rule 24b-2 of the Exchange Act;
[
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] denotes omissions. |
Representatives) to, treat and hold as confidential and not disclose to any Person any and all confidential information furnished to it by any Noteholder, including the
information in Schedule 1 and the identity of any shareholders, members, directors or Affiliates of the Noteholders, and to use any such confidential information only in connection with this Agreement and any other Operative Document and the
transactions contemplated hereby and thereby. Notwithstanding the foregoing, the Issuer and its Representatives may disclose such information solely on a need-to-know basis and solely to its or their respective Representatives, members, managers,
brokers, advisors, lawyers, bankers, trustees, current and potential investors, current and potential co-investors, insurers, insurance brokers, current and potential lenders, current and potential underwriters and current and potential financing
parties; provided, however, that such Persons shall be informed of the confidential nature of such information and shall be obligated to keep such confidential information confidential pursuant to obligations of confidentiality no less
onerous than those set forth herein. In addition, except as required by Applicable Law or judicial or administrative proceedings (by oral questions, interrogatories, requests for information or documents, subpoena, civil investigation demand or
similar process) and except as otherwise set forth in this Section 17.11, neither the Issuer nor any of its Affiliates shall disclose to any Person, or use or include in any public announcement or any public filing, the identity of any
shareholders, members, directors or Affiliates of the Purchasers, without the prior written consent of such shareholder, member, director or Affiliate.
Section 17.12 Tax Disclosure. Notwithstanding anything expressed or implied to the contrary herein, the Purchaser and its
respective employees, representatives and agents may disclose to any and all Persons, without limitation of any kind, the Tax treatment and the Tax structure of the transactions contemplated by this Agreement and the agreements and instruments
referred to herein and all materials of any kind that are provided to the Purchaser relating to such Tax treatment and Tax structure; provided, however, that neither the Purchaser nor any employee, representative or other agent thereof
shall disclose any other information that is not relevant to understanding the Tax treatment and Tax structure of such transactions (including the identity of any party and any information that could lead another to determine the identity of any
party) or any other information to the extent that such disclosure could reasonably result in a violation of any Applicable Law relating to federal or state securities matters. For these purposes, the Tax treatment of the transactions contemplated
by this Agreement and the agreements and instruments referred to herein shall mean the purported or claimed U.S. federal or state Tax treatment of such transactions. Moreover, the Tax structure of the transactions contemplated by this Agreement and
the agreements and instruments referred to herein includes any fact that may be relevant to understanding the purported or claimed U.S. federal or state Tax treatment of such transactions.
Section 17.13 Indemnification. From and at all times after the date of this Agreement, and in addition to all of the Collateral
Agents and the Noteholders other rights and remedies against the Note Parties, the Note Parties agree to indemnify, defend and hold harmless, on a joint and several basis, the Collateral Agent, the Purchasers, the Noteholders and their
respective Affiliates from and against all damages, losses and out-of-pocket costs and expenses of any kind or nature whatsoever (including reasonable attorneys fees and expenses, court costs and fees,
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Portions of this Exhibit were omitted and have been filed separately with the Secretary of the Commission pursuant to the Companys application requesting confidential treatment under Rule 24b-2 of the Exchange Act;
[
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] denotes omissions. |
and consultant and expert witness fees and expenses, but limited in the case of attorneys fees and expenses to the reasonable and documented out of pocket fees, disbursements and other
charges of one counsel to the indemnified parties, taken as a whole and if reasonably necessary, one local counsel in each appropriate jurisdiction (and, in the case of a conflict of interest, where the indemnitee affected by such conflict notifies
the Issuer of the existence of such conflict and thereafter retains its own counsel, one additional separate counsel for all similarly affected indemnitees) (collectively Costs)) arising in any manner, directly or indirectly, out
of or by reason of (i) the other Operative Documents, or any transaction contemplated herein or therein, whether or not any party protected under this Section 17.13 is a party to, or target of, any Proceeding in question (provided,
however, that no indemnified party shall have the right to be indemnified hereunder for any liability resulting from the willful misconduct or gross negligence of such indemnified party (as finally determined by a court of competent jurisdiction),
material breach by any Purchaser of its obligations under this Agreement, including any failure by a Purchaser to purchase the Notes as required hereunder, or disputes that are solely among Noteholders, the Purchasers or among the Collateral Agent
and the Noteholders), (ii) any breach of any of the covenants, warranties or representations of any Note Party hereunder or under any other Operative Document, (iii) any Lien or charge upon amounts payable hereunder by any Note Party to
the Purchasers or any taxes, assessments, impositions and other charges in respect of the Collateral, (iv) any violation or alleged violation of any Environmental Law, federal or state securities law, common law, equitable requirement or other
legal requirement by any Note Party or with respect to any property owned, leased or operated by any Note Party (in the past, currently or in the future) to the extent that a Note Party is held responsible for such violation or alleged violation,
(v) any presence, generation, treatment, storage, disposal, transport, movement, release, suspected release or threatened release of any Hazardous Material on, in, to or from any property (or any part thereof including the soil and groundwater
thereon and thereunder) owned, leased or operated by any Note Party (in the past, currently or in the future) and for which any Note Party is held responsible, or (vi) any and all claims (whether valid or not), actions, suits, inquiries,
investigations and administrative proceedings (collectively, Proceedings) relating to the foregoing. All Costs shall be additional Obligations under this Agreement, shall be payable on demand to the party to be indemnified and
shall be secured by the Lien of the Pledge Agreement. Without limiting the foregoing, the Note Parties shall be obligated to pay, jointly and severally, on demand, the costs of any investigation, monitoring, assessment, enforcement, removal,
remediation, restoration or other response or corrective action of Hazardous Materials undertaken by the Collateral Agent or the Noteholders or any other indemnified party, or their respective agents, with respect to any property owned, leased or
operated by any Note Party. The obligations of the Note Parties under this Section 17.13 shall not be limited to any extent by payment of the Obligations and termination of this Agreement and shall remain in full force and effect until
expressly terminated by the Purchasers in writing. This Section 17.13 shall not apply with respect to Taxes other than any Taxes that represent losses, claims, damages, etc. arising from any non-Tax claim.
{SIGNATURE PAGES FOLLOW}
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Portions of this Exhibit were omitted and have been filed separately with the Secretary of the Commission pursuant to the Companys application requesting confidential treatment under Rule 24b-2 of the Exchange Act;
[
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] denotes omissions. |
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed and
delivered as of the day and year first above written.
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ISSUER: |
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ANTIGENICS LLC |
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By: |
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/s/ C. Evan Ballantyne |
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Name: |
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C. Evan Ballantyne |
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Title: |
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Treasurer |
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GUARANTOR: |
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AGENUS INC. |
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By: |
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/s/ C. Evan Ballantyne |
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Name: |
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C. Evan Ballantyne |
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Title: |
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Chief Financial Officer |
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GUARANTOR: |
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ARONEX PHARMACEUTICALS, INC. |
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By: |
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/s/ Karen H. Valentine |
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Name: |
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Karen H. Valentine |
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Title: |
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Secretary |
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COLLATERAL AGENT |
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OBERLAND CAPITAL SA ZERMATT LLC |
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By: |
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/s/ David Dubinsky |
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Name: |
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David Dubinsky |
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Title: |
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Authorized Signatory |
[Signature page to Note
Purchase Agreement]
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Portions of this Exhibit were omitted and have been filed separately with the Secretary of the Commission pursuant to the Companys application requesting confidential treatment under Rule 24b-2 of the Exchange Act;
[
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] denotes omissions. |
IN WITNESS WHEREOF, the undersigned Purchaser has caused this Agreement to be duly executed and
delivered as of the day and year first above written.
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PURCHASER |
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THREE PEAKS CAPITAL S.A.R.L. |
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By: |
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/s/ David Dubinsky |
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Name: |
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David Dubinsky |
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Title: |
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Manager |
[Signature page to Note
Purchase Agreement]
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Portions of this Exhibit were omitted and have been filed separately with the Secretary of the Commission pursuant to the Companys application requesting confidential treatment under Rule 24b-2 of the Exchange Act;
[
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] denotes omissions. |
Schedule 1
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Purchaser |
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Original Notes |
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Additional Notes |
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Three Peaks Capital S.a.r.l. |
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$ |
60,869,565.53 |
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$ |
9,130,434.48 |
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Portions of this Exhibit were omitted and have been filed separately with the Secretary of the Commission pursuant to the Companys application requesting confidential treatment under Rule 24b-2 of the Exchange Act;
[
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] denotes omissions. |
EXECUTION VERSION
ANNEX A
RULES OF
CONSTRUCTION AND DEFINED TERMS
Unless otherwise stated or the context otherwise requires, in this Annex A and the Operative Documents:
(a) |
Words of the masculine, feminine or neuter gender shall mean and include the correlative words of other genders, and words in the singular shall include the plural, and vice versa. |
(b) |
The terms include, including and similar terms shall be construed as if followed by the phrase without limitation. |
(c) |
References to an agreement or other document include references to such agreement or document as amended, restated, reformed, supplemented or otherwise modified in accordance with the terms thereof and include any
Annexes, Exhibits and Schedules attached thereto, and the provisions thereof apply to successive events and transactions. |
(d) |
References to any statute or other legislative provision shall include any statutory or legislative modification or re-enactment thereof, or any substitution therefor. |
(e) |
References to any Person shall be construed to include such Persons successors and permitted assigns. |
(f) |
The word will shall be construed to have the same meaning and effect as the word shall. |
(g) |
The words hereof, herein, hereunder and similar terms when used in this Annex A or any Agreement shall refer to this Annex A or such Agreement as a whole and
not to any particular provision hereof or thereof, and Article, Section, Annex, Schedule and Exhibit references herein and therein are references to Articles and Sections of, and Annexes, Schedules and Exhibits to, the relevant Operative Document
unless otherwise specified. |
(h) |
References to the Notes include the terms and conditions in the relevant Operative Document applicable to the Notes, and any reference to any amount of money due or payable by reference to the Notes shall include any
sum covenanted to be paid by any Note Party under the relevant Operative Document in respect of the Notes. |
(i) |
All other terms contained in this Agreement, unless otherwise indicated, shall have the meaning provided by the UCC to the extent such terms are defined therein. |
(j) |
References to any action, remedy or method of judicial proceeding for the enforcement of the rights of creditors or of security shall be deemed to
include, in respect of any jurisdiction other than the State of New York, references to such action, remedy or method of judicial proceeding for the enforcement of the rights of creditors or of security available or appropriate in such jurisdiction
as shall most nearly approximate such action, |
A-1
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remedy or method of judicial proceeding described or referred to in the relevant Operative Document. |
Account Control Agreement means (i) any account control agreement in favor of the Collateral Agent with respect to a
Pledged Account, and (ii) any escrow agreement between the Issuer, the Collateral Agent and any escrow agent satisfactory to the Collateral Agent in respect of a Pledged Account, in each case in form and substance satisfactory to the Collateral
Agent.
Additional Closing means the sale and purchase of the Additional Notes on the Additional Closing Date.
Additional Closing Date means the date on which the conditions set forth in Section 6.2 of the Agreement are satisfied
and the Notes are issued, which date shall be no later than fifteen days of the FDA Approval Date.
Additional Notes
has the meaning set forth in Section 3.2(a) of the Agreement.
Affiliate means, with respect to any Person, any
other Person that, directly or indirectly, controls, is controlled by or is under common control with such Person or is a director, officer or manager of such Person. For purposes of this definition, control of a Person means the
possession, directly or indirectly, of the power (a) to vote 10% or more of the Capital Securities (on a fully diluted basis) of such Person having ordinary voting power for the election of directors, managing members or general partners (as
applicable) or (b) 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 controlled and
controlling have meanings correlative to the foregoing.
Aggregate Accrual has the meaning set forth
in Section 8.5(b) of the Agreement.
Agreement means this Note Purchase Agreement.
AHYDO Payment has the meaning set forth in Section 8.5(b) of the Agreement.
Applicable Agreements means, collectively, the License Agreement, Manufacturing Agreement and Negotiation Agreement.
Applicable Agreement Parties means, collectively, the Issuer and the Parent.
Applicable Law means, with respect to any Person, all laws, rules, regulations and orders of Governmental Authorities
applicable to such Person or any of its properties or assets.
Applicable Patent Rights has the meaning set forth in
Section 5.19 of the Agreement.
Assignment and Assumption Agreement means that Assignment and Assumption
Agreement, dated as of September 3, 2015, between the Issuer and the Parent.
Available Collections Amount means,
for any Payment Date, the amount on deposit in the Collection Account as of the Relevant Calculation Date for such Payment Date.
A-2
Audit and Report Rights means (a) all of the Issuers rights to
receive the reports produced by Counterparty in respect of sales of the Products pursuant to Section 4.2 of the License Agreement and Section 6.2 of the Manufacturing Agreement, and (b) all of the Issuers rights to audit records
of the Counterparty in respect of such sales pursuant to Section 4.5 of the License Agreement and Section 6.5 of the Manufacturing Agreement with respect to periods commencing on or after the date hereof,
Audit Report has the meaning set forth in Section 9.4(a) of the Agreement.
Business Day means any day that is not a Saturday, Sunday or other day on which commercial banks in New York City are
authorized or required by Applicable Law to remain closed.
Capital Lease Obligation means an obligation that is
required to be classified and accounted for as a capital lease for financial reporting purposes in accordance with GAAP, and the amount of indebtedness represented by such obligation shall be the capitalized amount of such obligation determined in
accordance with GAAP.
Capital Securities means, with respect to any Person, all shares, interests, participations or
other equivalents (however designated, whether voting or non-voting) of such Persons capital, whether now outstanding or issued after the Closing Date, including common shares, ordinary shares, preferred shares, membership interests or share
capital in a limited liability company or other Person, limited or general partnership interests in a partnership, beneficial interests in trusts or any other equivalent of such ownership interest or any options, warrants and other rights to acquire
such shares or interests, including rights to allocations and distributions, dividends, redemption payments and liquidation payments.
Calculation Date means, for any Payment Date, the third Business Day immediately preceding such Payment Date.
Change of Control means the occurrence of any of the following events: (a) the sale, assignment, conveyance, transfer,
license, lease or other disposition of (whether in one transaction or a series of transactions) all or substantially all the assets of the Parent and its Subsidiaries, determined on a consolidated basis, taken as a whole, or any of the Collateral or
the Applicable Agreements; (b) the Parent becomes aware (by way of a report or any other filing pursuant to Section 13(d) of the Exchange Act, proxy, vote, written notice or otherwise) of the acquisition by any Person or group (within the
meaning of Section 13(d)(3) or Section 14(d)(2) of the Exchange Act, or any successor provision), including any group acting for the purpose of acquiring, holding or disposing of securities (within the meaning of Rule 13d-5(b)(1) under the
Exchange Act or any successor provision), in a single transaction or in a related series of transactions, by way of merger, consolidation or other business combination or purchase of beneficial ownership (within the meaning of Rule 13d-3 under the
Exchange Act, or any successor provision), of more than 50% of the total voting power of the Voting Securities of the Parent; (c) the Parent shall cease to own, directly or indirectly, all of the outstanding Capital Securities of the Issuer; or
(d) the dividend or other distribution by the Parent or any Subsidiary (other than a dividend or other distribution by any Subsidiary, other than the Issuer, of assets to the Parent) in one or more transactions of assets collectively having a
fair market value equal to
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or greater than 50% of the fair market value of the consolidated assets of the Parent and its Subsidiaries or otherwise constituting a majority of the consolidated assets of the Parent and its
Subsidiaries.
Closing has the meaning set forth in Section 3.3 of the Agreement.
Closing Date means the Initial Closing Date and the Additional Closing Date.
Code means the U.S. Internal Revenue Code of 1986, as amended, and the regulations thereunder.
Collateral means (a) the Royalties, all Accounts and Payment Intangibles relating thereto, and all rights of the
Issuer under the Applicable Agreements or otherwise in respect of, or arising under, the Royalties (including any enforcement rights under the Counterparty License Agreement in respect thereof), (b) Audit and Report Rights, (c) all Pledged
Accounts, (d) all rights and remedies of the Issuer pursuant to the Ingalls Termination Agreement arising in respect of the Royalties or the failure to convey to the Issuer the Assigned Interests (as defined therein) consisting of Royalties;
(e) all documents of title, policies and certificates of insurance, securities, chattel paper and other documents or instruments evidencing or pertaining to any of the foregoing property of the Issuer, (f) all books and records that at any
time evidence or contain information relating to any of the foregoing or are otherwise necessary or helpful in the collection or realization thereof, and (g) all proceeds and products of any of the foregoing property.
Collateral Agent has the meaning set forth in Article I of the Agreement.
Collection Account means a separate bank account of the Issuer into which all (and only) Counterparty Payments will be
deposited.
Collection Account Bank means Bank of New York Mellon or such other bank at which the Collection Account is
maintained.
Collection Account Calculation Report has the meaning set forth in Section 7.2(a) of the Agreement.
Collections means, without duplication, (a) Royalties, (b) any net investment income on amounts on deposit
in the Collection Account and (c) any other amounts deposited in the Collection Account.
Combination Vaccine has
the meaning set forth in the License Agreement.
Contingent Make-Whole Payment means an amount equal to the sum of
(i) initial principal amount of the Notes issued under the Agreement and (ii) any unreimbursed Expenses and Indemnities, less an amount equal to the aggregate amount of Note Payments made to the Noteholders pursuant to the terms of the
Notes and the initial principal amount of any Put Notes repaid pursuant to Section 8.4 (but, excluding any Note Payments made in respect of any interest, including any PIK Amounts, paid in respect of such Put Notes and any Default Amounts).
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Controlled Group means all members of a controlled group of corporations and
all trades or businesses (whether or not incorporated) under common control that, together with the Parent, are treated as a single employer under Section 414 of the Code.
Cost has the meaning set forth in Section 17.13 of the Agreement.
Counterparty means GSK and its successors and assigns under the Applicable Agreements.
Counterparty License Agreements means collectively, the License Agreement and the Manufacturing Agreement.
Counterparty Payments means all Royalties and other payments by the Counterparty to any Note Party pursuant to, or
otherwise in respect of, the Applicable Agreements unless and until the Counterparty agrees in an instrument enforceable against it, in form and substance satisfactory to the Collateral Agent in its reasonable discretion, to separate the Royalties
from all such other payments following which Counterparty Payments shall mean only the Royalties (provided that such instrument does not otherwise amend or change the Applicable Agreements, the Royalties or the amount, timing or duration
thereof).
Default means an event or condition the occurrence or existence of which would, with the lapse of time or
the giving of notice, or both, become an Event of Default.
Default Amounts means any additional interest payable in
respect of the Notes or other Obligations as a result of the applications of the Default Rate pursuant to Section 8.2(c).
Default Rate has the meaning set forth in Section 8.2(c) of the Agreement.
Dispute or Disputes has the meaning set forth in Section 5.19 of the Agreement.
Disclosure Letter means that certain disclosure letter with respect to the representations and warranties of the Note
Parties delivered by the Issuer to the Purchasers on or prior to the initial Closing.
Dollar or the sign
$ means lawful money of the United States.
Domestic Subsidiaries means any Subsidiary organized in
a jurisdiction inside the United States.
EMA means the European Medicines Agency or any successor agency or authority
thereto.
Environmental Law means any federal, state or local law, statute, ordinance, rule, regulation, permit,
license, approval, interpretation, order, guidance or other legal requirement (including any subsequent enactment, amendment or modification) relating to the protection of human health or the environment, including, but not limited to, any
requirement pertaining to the manufacture, processing, distribution, use, treatment, storage, disposal, transportation, handling,
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reporting, licensing, permitting, investigation or remediation of materials that are or may constitute a threat to human health or the environment.
ERISA means the U.S. Employee Retirement Income Security Act of 1974, as amended, and the regulations thereunder.
European Union means the countries of the European Union, as the European Union is constituted as of the Closing Date and
as it may be expanded from time to time.
Exchange Act means the Securities Exchange Act of 1934, as amended, and the
rules and regulations promulgated thereunder.
Excess Interest has the meaning set forth in Section 8.2(b) of the
Agreement.
Excluded Subsidiaries means any Subsidiary that (a) is formed for the purpose of developing,
partnering, commercializing or monetizing Prophage and/or two additional assets disclosed in writing to the Collateral Agent prior to the Initial Closing Date (the Excluded Subsidiary Description), (b) holds no significant
assets other than agreements and licenses, and the intellectual property, relating to Prophage and/or such other assets, cash and intercompany loans as are necessary and/or useful for activities permitted under the immediately following clause (c),
and (c) engages in no business other than the development, partnering, commercialization or monetization of Prophage and/or such other assets.
Expenses has the meaning set forth in Section 16.3 of the Agreement.
Event of Default has the meaning set forth in Section 10.1 of the Agreement.
Expired MTA and CMO Agreements has the meaning set forth in Section 5.26(f) of the Agreement.
FDA means the United States Food and Drug Administration, and any successor agency thereto.
FDA Approval Date means the date of receipt of Marketing Authorization from the FDA for the use of the Shingles Product;
provided such approval does not occur later than June 30, 2018.
Field means, for the Shingles Product, the
treatment of shingles (herpes zoster), and for the Malaria Product, the treatment of malaria.
Final Legal Maturity
Date means the earlier of (a) tenth anniversary of the first commercial sale of any of the Products, and (b) the fifteenth anniversary of the Initial Closing Date.
Financial Statements has the meaning set forth in Section 5.15 of the Agreement.
First Commercial Sale has the meaning set forth in the Manufacturing Agreement.
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Full Recourse Obligations means (i) the obligations of the Note Parties
from time to time in respect of the due and prompt payment of the Contingent Make-Whole Payment, the aggregate Put Price of any Put Notes, Default Amounts and any Expenses and Indemnities when and as due, whether at maturity, by acceleration, upon
one or more dates set for payment or otherwise, (ii) the obligations of the Note Parties to pay the Redemption Price upon the exercise by the Issuer of its rights under Section 8.3, and (iii) the obligations of any Note Party relating
to, arising from or caused by, or an account of (X) a breach by any Note Party of any Operative Document (but only if a Specified Event of Default set forth in Section 10.1(a), 10.1(b), 10.1(c), 10.1(d), 10.1(e) or 10.1(g) occurs with
respect to such matters), (Y) any diversion or application of Counterparty Payments in violation of the Operative Documents or the incurrence or existence of any Liens (other than Permitted Encumbrances) on the Collateral, and (Z) any
willful misconduct or fraudulent conduct in the issuance and sale of the Notes.
GAAP means generally accepted
accounting principles in effect in the United States from time to time.
GSK means GlaxoSmithKline Biologicals SA, a
Belgian company, and its Affiliates.
Governmental Authority means the government of the United States, any other
nation or any political subdivision thereof, whether state or local, and any agency, authority, instrumentality, regulatory body, court, central bank or other Person exercising executive, legislative, judicial, taxing, regulatory or administrative
powers or functions of or pertaining to government.
Guaranteed Obligations has the meaning set forth in
Section 16.1 of the Agreement.
Guarantees means the guarantees provided by the Guarantors pursuant to Article XVI
of the Agreement.
Guarantors means the Parent and each Subsidiary Guarantor.
Hazardous Material means any substance or material meeting any one or more of the following criteria: (i) it is or
contains a substance designated as a hazardous waste, hazardous substance, pollutant, contaminant or toxic substance under any Environmental Law; (ii) it is toxic, explosive, corrosive, ignitable, infectious, radioactive, mutagenic or otherwise
hazardous, (iii) its presence requires investigation or remediation under an Environmental Law or common law; (iv) it constitutes a danger, nuisance, trespass or health or safety hazard to persons or property; or (v) it is or
contains, without limiting the foregoing, petroleum hydrocarbons.
Health Canada means Health Canada, or any successor
agency or authority thereto.
Hedging Agreement means any interest rate exchange agreement, foreign currency exchange
agreement, commodity price protection agreement or other interest or currency exchange rate or commodity price hedging arrangement.
Indebtedness of any Person means, without duplication: (a) all indebtedness for advanced or borrowed money or credit
extended; (b) all obligations issued, undertaken or assumed as the deferred purchase price of property or services (other than trade payables entered
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into in the ordinary course of business that are not more than 90 days past due); (c) the face amount of all letters of credit issued for the account of such Person and, without duplication,
all drafts drawn thereunder and all reimbursement or payment obligations with respect to letters of credit, surety bonds and other similar instruments issued by such Person; (d) all obligations evidenced by notes, bonds, debentures or similar
instruments, including obligations so evidenced incurred in connection with the acquisition of property, assets or businesses; (e) all indebtedness created or arising under any conditional sale or other title retention agreement, or incurred as
financing, in either case with respect to property acquired by such Person (even though the rights and remedies of the seller or bank under such agreement in the event of default are limited to repossession or sale of such property), but excluding
trade accounts payable and accrued expenses arising in the ordinary course of business and leases and licenses in the ordinary course of business; (f) all Capital Lease Obligations; (g) the principal balance outstanding under any synthetic
lease, off-balance sheet loan or similar off-balance sheet financing product; (h) all obligations of such Person, contingent or otherwise, to purchase, redeem, retire or otherwise acquire for value any Capital Securities of such Person;
(i) all obligations of such Person under license or other agreements containing a guaranteed minimum payment or guaranteed minimum purchase by such Person, (j) all obligations under any Hedging Agreement currency swaps, forwards, futures
or derivatives transactions, (k) all indebtedness referred to in clauses (a) through (j) above of other Persons guaranteed by such Person and (l) all indebtedness referred to in clauses (a) through (k) above secured by (or
for which the holder of such indebtedness has an existing right, contingent or otherwise, to be secured by) any Lien upon or in property (including accounts and contracts rights) owned by such Person, even though such Person has not assumed or
become liable for the payment of such indebtedness.
Indemnified Taxes shall mean any Taxes imposed on or with respect
to a Noteholder or required to be withheld or deducted from a payment to a Noteholder other than (a) Taxes imposed on or measured by net income (however denominated), franchise Taxes, and branch profits Taxes, in each case, (i) imposed as
a result of a Noteholder being organized under the laws of, or having its principal office located in, the jurisdiction imposing such Tax (or any political subdivision thereof) or (ii) that are imposed as a result of a present or former
connection between such Noteholder and the jurisdiction imposing such Tax (other than connections arising from such Noteholder having executed, delivered, become a party to, performed its obligations under, received payments under, received or
perfected a security interest under, engaged in any other transaction pursuant to or enforced any Operative Document, or sold or assigned an interest in any Note or Operative Document), (b) U.S. withholding Taxes imposed on amounts payable to a
Noteholder pursuant to the law in effect on the date of the Initial Closing (other than as a result of a failure of the Notes as of the results of their terms to qualify for the portfolio interest exemption under the Code), (c) Taxes
attributable to such Noteholders failure to comply with the certification requirements set forth in the first sentence of Section 15.2 of the Agreement, or (d) any U.S. federal withholding Taxes imposed under Sections 1471 through
1474 of the Code, as of the date of the Agreement (or any amended or successor version that is substantively comparable and not materially more onerous to comply with), any current or future regulations or official interpretations thereof or any
agreements entered into pursuant to Section 1471(b)(1) of the Code. For the avoidance of doubt, Indemnified Taxes will include any U.S. federal income Taxes required by law to be withheld with respect to payments on the Notes by any applicable
withholding agent as a result of the Notes failing to qualify for the portfolio interest exemption under the Code other than solely as a result of the application of Section 871(h)(3) or
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Section 881(c)(3) or the failure of a Noteholder to comply with the certification requirements set forth in the first sentence of Section 15.2 of the Agreement.
Indemnities means, collectively, those indemnity obligations of the Note Parties listed in Section 17.13 of the
Agreement, the obligations of the Note Parties under Section 15.2 of the Agreement and the obligations of the Pledgor (as defined in the Pledge Agreement) under Section 5.02 of the Pledge Agreement.
Ingalls means Ingalls & Snyder Value Partners, L.P.
Ingalls Agreements means the Revenue Interests Assignment Agreement.
Ingalls Termination Agreement has the meaning given to such term in Section 6.1(c).
Initial Closing means the sale and purchase of the Original Notes on the Initial Closing Date.
Initial Closing Date means the date on which the conditions set forth in Sections 6.1 and 6.2 of the Agreement are
satisfied and the Notes are issued, which date shall be September 8, 2015.
Investment Company Act means the U.S.
Investment Company Act of 1940, as amended, and the regulations thereunder.
Institutional Accredited Investor means an
accredited investor as defined in Rule 501(a)(1), (2), (3) or (7) under the Securities Act that is not a QIB.
Involuntary Bankruptcy means, with respect to any Note Party, without the consent or acquiescence of such Note Party, the
entering of an order for relief or approving a petition for relief or reorganization or any other petition seeking any reorganization, arrangement, composition, readjustment, liquidation, dissolution or other similar relief under any present or
future bankruptcy, insolvency or similar Applicable Law, or the filing of any such petition against such Note Party, or, without the consent or acquiescence of such Note Party, the entering of an order appointing a trustee, custodian, receiver or
liquidator of such Note Party or of all or any substantial part of the property of such Note Party, in each case where such petition or order shall remain unstayed or shall not have been stayed or dismissed within 30 calendar days from entry
thereof.
IRS means the U.S. Internal Revenue Service.
Issuer has the meaning set forth in the first sentence of the Agreement.
Knowledge means, with respect to the Note Parties, (a) for the purposes of Article V, the actual knowledge, as of the
date of the Agreement, of any of the officers of the Note Parties identified on Schedule 1.1, and (b) for all other purposes of the Agreement, the actual knowledge, as of a specified time, of any of the officers of the Note Parties identified
on Schedule 1.1 or any successor to any such officer holding the same or substantially similar officer position at such time, in each case (except as expressly stated to the contrary in Section
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5.27(g)) together with the knowledge that each such officer would have reasonably obtained after making a commercially responsible and diligent investigation, inquiry and/or inspection with
respect to the particular matter in question.
License Agreement means that certain License Agreement, effective as of
July 6, 2006, by and between the Issuer and Counterparty, as amended by the Negotiation Agreement and as such agreement may be further amended.
Licensed Patent Rights has the meaning set forth in the License Agreement.
Lien means any security interest, mortgage, pledge, hypothecation, assignment, deposit arrangement, encumbrance, lien
(statutory or otherwise), charge against or interest in property or other priority or preferential arrangement of any kind or nature whatsoever, in each case to secure payment of a debt or performance of an obligation, including any conditional
sale, any sale with recourse against any Person or any agreement to give any security interest.
Limited Recourse
Obligations means the Obligations other than Full Recourse Obligations.
MAA means any application for
regulatory approval submitted to the EMA pursuant to the centralized approval procedure to obtain approval for the marketing of any Product in the European Union, or any successor application or procedure required to sell such Product in the
European Union.
Major Market Country has the meaning set forth in the Manufacturing Agreement.
Malaria Products means (a) the vaccine, currently designated as Mosquirix (RTS,S), that is currently being developed
by Counterparty for malaria, including such vaccine as it may be modified or improved and any Combination Vaccine that includes such vaccine (including as it may be modified or improved) and (b) any other QS-21 Vaccine for malaria, including as
any such other QS-21 Vaccine may be modified or improved and any Combination Vaccine that includes such other QS-21 Vaccine (including as such other QS-21 Vaccine may be modified or improved).
Manufacturing Agreement means that certain Amended and Restated Manufacturing Technology Transfer and Supply Agreement,
effective as of January 16, 2009, by and between the Issuer and Counterparty, as amended by the Negotiation Agreement and as such agreement may be further amended.
Marketing Authorization means, with respect to any Product, the approval of any Regulatory Authority that is required by
Applicable Law to sell such Product for use in its respective Field in a given country or region. For purposes of clarity: Marketing Authorization in the United States means final approval of a Biologics License Application
permitting marketing of such Product in interstate commerce in the United States.
Material Adverse Effect means any event,
circumstance or change that would reasonably be expected to result, individually or in the aggregate, (a) in a material adverse effect on (i) the right or ability of any Note Party to perform its obligations under any of the Operative
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Documents or to consummate the transactions hereunder or thereunder, (ii) the legality, validity or enforceability of any of the Operative Documents or the Applicable Agreements,
(iii) the rights or remedies of the Collateral Agent and the Noteholders under any of the Operative Documents, (iv) the assets, liabilities or financial condition of the Issuer or of the Parent and its Subsidiaries, taken as a whole or
(v) the rights or remedies of Note Parties under any of the Applicable Agreements, or (b) in an adverse effect (other than any de minimis effect) on the timing, amount or duration of the Royalties or the right of the Noteholders to receive
payments on the Notes in respect of the Royalties in accordance with the Operative Documents.
Material Contract means
(a) the Applicable Agreements, (b) the contracts, agreements and instruments listed on Schedule 5.18 of the Disclosure Letter, and (c) any contract or agreement entered into by the Parent (or any Affiliate of the Parent) that is filed
or required to be filed by the Parent with the SEC under Item 601(b)(10) of Regulation S-K of the SEC.
Maximum
Accrual has the meaning set forth in Section 8.5(b) of the Agreement.
MHLW means the Japanese Ministry
of Health, Labour and Welfare.
Multiemployer Plan means any multiemployer plan within the meaning of
Section 4001(a)(3) of ERISA.
Negotiation Agreement means that certain First Right to Negotiate and Amendment
Agreement, effective as of March 2, 2012, by and between the Parent, the Issuer and Counterparty, as such agreement may be amended.
Net Sales has the meaning set forth in the Manufacturing Agreement.
Noteholder means any Person in whose name a Note is registered from time to time in the register maintained by the Issuer
pursuant to Section 12.1 of the Agreement.
Noteholder Payment has the meaning set forth in Section 7.2 of
the Agreement.
Note Parties has the meaning set forth in the first paragraph of the Agreement.
Note Payments has the meaning set forth in Section 7.2 of the Agreement.
Notes has the meaning set forth in Article I of the Agreement.
Obligations means, (i) obligations of the Note Parties from time to time arising under the Operative Documents or
otherwise with respect to the due and prompt payment of (A) the principal (including PIK Amounts) of and premium, if any (including Redemption Premium), Put Price, Contingent Make-Whole Payment, Default Amounts and interest (including interest
accruing during the pendency of any bankruptcy, insolvency, receivership or other similar proceeding, regardless of whether allowed or allowable in such proceeding (Postpetition Interest)) on, or in respect of, the Notes, when and
as due, whether at maturity, by acceleration, upon one or more dates set for payment or otherwise, and (B) all other monetary obligations, including fees, Expenses, Indemnities, attorneys fees and disbursements, reimbursement obligations,
contract causes of action, expenses and indemnities, whether primary, secondary,
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direct or indirect, absolute or contingent, due or to become due, now existing or hereafter arising, fixed or otherwise (including monetary obligations incurred during the pendency of any
bankruptcy, insolvency, receivership or other similar proceeding, regardless of whether allowed or allowable in such proceeding), of the Note Parties under or in respect of any Operative Document, (ii) the due and prompt performance of all
other covenants, duties, debts, obligations and liabilities of any kind of the Note Parties, individually or collectively, under or in respect of the Operative Documents or any other document made, delivered or given in connection with any of the
Operative Documents, in each case whether evidenced by a note or other writing, whether allowed in any bankruptcy, insolvency, receivership or other similar proceeding, whether arising from an extension of credit, acceptance, loan, guaranty,
indemnification or otherwise, and whether primary, secondary, direct or indirect, absolute or contingent, due or to become due, now existing or hereafter arising, fixed or otherwise, and (iii) the payment and performance of all the obligations
of the Note Parties in respect of any amendment, modification, extension, renewal or refinancing of the Notes or any Operative Document. For the avoidance of doubt, Obligations shall include all Full Recourse Obligations.
OFAC means the U.S. Department of the Treasurys Office of Foreign Assets Control and any successor thereto.
Operative Documents means the Notes, the Pledge Agreement, each Account Control Agreement, each Purchaser Addendum, the
Agreement (including the Disclosure Letter) and any other agreements or instruments delivered pursuant to the Pledge Agreement.
Organizational Documents means (a) with respect to any corporation, the certificate or articles of incorporation and
the bylaws (or equivalent or comparable constitutive documents with respect to any non-United States jurisdiction); (b) with respect to any limited liability company, the certificate or articles of formation or organization and operating
agreement (or equivalent or comparable constitutive documents with respect to any non-United States jurisdiction); and (c) with respect to any partnership, joint venture, trust or other form of business entity, the partnership, joint venture or
other applicable agreement of formation or organization (or equivalent or comparable constitutive documents with respect to any non-United States jurisdiction) and any agreement, instrument, filing or notice with respect thereto filed in connection
with its formation or organization with the applicable Governmental Authority in the jurisdiction of its formation or organization and, if applicable, any certificate or articles of formation or organization of such entity.
Original Notes has the meaning set forth in Article I of the Agreement.
Parent means Agenus Inc., a Delaware corporation.
Payment Date has the meaning set forth in Section 8.5(b) of the Agreement.
PATRIOT Act means the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct
Terrorism (USA PATRIOT Act of 2001) and any successor statute.
PBGC means the Pension Benefit Guaranty Corporation and
any successor thereto.
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Payment Instructions means the notice from Issuer to Counterparty directing
Counterparty to pay any Counterparty Payments to the Collection Account in substantially the form set forth in Exhibit D.
Permitted Encumbrances means (i) any Lien created in favor of the Secured Party (as defined in the Pledge Agreement)
or otherwise arising under the Operative Documents, (ii) any Lien for Taxes, assessments and governmental charges or levies not yet due and payable or that are being diligently contested in good faith by appropriate proceedings and for which
adequate reserves in accordance with GAAP have been set aside on the books of the relevant Person, (iii) bankers liens, rights of set-off and similar rights and remedies of the Collection Account Bank in respect of the Collection Account,
(iv) Liens of a collection bank arising under Section 4-208 of the UCC (or other Applicable Law) on the items in the course of collection, and (vi) Liens on Audit and Report Rights granted pursuant to a Permitted Royalty Financing.
Permitted Liens means:
(a) Liens in favor of financial institutions arising in connection with any Note Partys deposit accounts held at such institutions to
secure standard fees for deposit services charged by such institutions;
(b) Carriers, warehousemens, mechanics,
materialmens, repairmens, suppliers, utilities or other like Liens arising in the ordinary course of business;
(c)
Pledges or deposits in the ordinary course of business in connection with workers compensation, unemployment insurance and other social security legislation, other than any Lien imposed by ERISA;
(d) Deposits to secure the performance of bids, trade contracts and leases (other than Indebtedness), statutory obligations, surety bonds,
performance bonds and other obligations of a like nature incurred in the ordinary course of business;
(e) Easements, rights of way,
restrictions and other similar encumbrances affecting real property which do not in any case materially detract from the value of the property subject thereto or materially interfere with the ordinary conduct of the business of the applicable
Person;
(f) Liens affecting the interest of landlords and licensors (any underlying landlords and licensors) of any real property leased,
licensed or occupied by any Note Party;
(g) Leases, subleases, licenses, sublicenses or other similar use and occupancy agreements
granted to other Persons and not interfering in any material respect with the business of the Note Parties, taken as a whole;
(h) The
title and interests of a lessor or sublessor in and to personal property leased or subleased, in each case, extending only to such personal property;
(i) Liens on premium refunds and insurance proceeds granted in favor of insurance companies (or their financing affiliates) solely in
connection with the financing of insurance premiums;
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(j) Non-exclusive licenses of intellectual property rights in the ordinary course of business;
(k) Precautionary financing statements filed in connection with operating leases by this lessors; and
(l) Rights of set-off from customer or subcontract agreements entered into in the ordinary course of business providing for indemnification or
similar obligations and form bonds, surety or other guarantees or letters of credit securing performance, by any Note Party pursuant to such agreements, so long as any such Lien attaches only to the specific bonded contract, accounts receivable
pursuant to such contract and the proceeds thereof, and assets used in connection therewith.
Person means any natural
person, firm, corporation, limited liability company, partnership, joint venture, association, joint-stock company, trust, unincorporated organization, Governmental Authority or any other legal entity, including public bodies, whether acting in an
individual, fiduciary or other capacity.
Permitted Royalty Financing means any sale or financing by a Note Party
(whether by virtue of sale of receivables, incurrence of secured Indebtedness or otherwise) of any rights to payment under the Applicable Agreements (other than the Royalties) so long as (a) such sale or financing subjects no portion of the
Collateral or other assets of the Issuer to any Lien, other than a Lien on Audit and Report Rights, (b) the purchasers or financing sources (or their representatives) have entered into an intercreditor or other agreement, in each case in form
and substance reasonably satisfactory to the Collateral Agent (which intercreditor or other agreement shall provide for the priority of the Liens on the Collateral under the Operative Documents but shall allow such purchasers or financing sources
(or their representatives) access to the Audit and Report Rights so long as such access is not materially detrimental to the Noteholders and the rights and remedies of the Collateral Agent and the Noteholders), and (c) such sale or financing
could not reasonably be expected to result, individually or in the aggregate, in a Material Adverse Effect.
PIK
Amounts has the meaning set forth in Section 8.2(b) of the Agreement.
Plan means, at any time, an
employee pension benefit plan that is covered by Title IV of ERISA or subject to the minimum funding standards under Section 412 of the Code and is either (i) maintained by a member of the Controlled Group for employees of any member of
the Controlled Group or (ii) maintained pursuant to a collective bargaining agreement or any other arrangement under which more than one employer makes contributions and to which a member of the Controlled Group is then making or accruing an
obligation to make contributions or has within the preceding five plan years made contributions.
Pledge Agreement has
the meaning set forth in Article I of the Agreement.
Pledged Accounts means (a) the Collection Account and each
other deposit, securities, custody or other account established pursuant to Section 2.04 of the Pledge Agreement, (b) each deposit, securities, custody or other account (whether, in any case, time or demand or interest or
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non-interest bearing and whether maintained at a branch or office located within or without the United States) that is a successor to the Collection Account or any such other account,
(c) all amounts from time to time credited to a Pledged Account, (d) all cash, financial assets, investment property, instruments, documents, chattel paper, general intangibles, accounts and other property (i) from time to time
credited to a Pledged Account or (ii) representing investments and reinvestments of amounts from time to time credited to a Pledged Account, and (e) (i) dividends (whether or not payable in cash), interest, principal payments and
other distributions (including cash and securities payable in connection with calls, conversions, redemptions and the like), on, and all rights, contractual and otherwise (whether such dividends, interest, principal payments and other distributions
and rights constitute accounts, contract rights, investment property or general intangibles), arising under or connected with, and (ii) proceeds (including cash and securities receivable in connection with tender and other offers) of, a Pledged
Account.
Premises has the meaning set forth in Section 6.24 of the Agreement.
Price has the meaning set forth in Section 3.1 of the Agreement.
Proceedings has the meaning set forth in Section 17.13 of the Agreement
Product means any Shingles Product or Malaria Product, individually, and Products means the Shingles Products
and the Malaria Products, collectively.
Proprietary Rights means all patents, trademarks, service marks, tradenames,
copyrights, trade secrets, licenses, information and proprietary rights and processes controlled by the Issuer that are necessary or useful to the development, manufacture or commercialization of any Product.
Purchaser has the meaning set forth in Article I of the Agreement.
Purchaser Addendum means a purchaser addendum substantially in the form set forth as Exhibit A to the Agreement or such
other form as acceptable to the Collateral Agent, pursuant to which a Purchaser agrees to become a Purchaser under the Agreement.
Put Notes means any Notes required to be repurchased by the Issuer pursuant to Section 8.4.
Put Price has the meaning set forth in Section 8.4 of the Agreement.
QIB means a qualified institutional buyer within the meaning of Rule 144A under the Securities Act.
QS-21 has the meaning set forth in the Manufacturing Agreement.
QS-21 Vaccine has the meaning set forth in the Manufacturing Agreement.
Redemption Premium means, with respect to any Notes subject to redemption pursuant to Section 8.3 or repayment upon
acceleration pursuant to Section 11.1 prior to the Final Legal
A-15
Maturity Date, an amount equal to (i) an amount that would yield an internal rate of return equal to the IRR Target Percentage (calculated utilizing the XIRR function in Microsoft Excel) on
the aggregate purchase price of the Notes immediately prior to such redemption or repayment, calculated from the Initial Closing Date or the Additional Closing Date, as applicable, minus (ii) the sum of all payments in respect of such Notes
(excluding any Default Amounts, Expenses and Indemnities), including any payment of the Put Price, on or prior to the date of such redemption or acceleration. For purposes hereof, the IRR Target Percentage shall be:
(A) for a redemption or repayment made within 24 months of the Initial Closing Date, 20%;
(B) for a redemption or repayment made after 24 months but within 48 months of the Initial Closing Date, 17.5%; and
(C) for a redemption or repayment made more than 48 months after the Initial Closing Date, 15.0%.
Redemption Price has the meaning set forth in Section 8.3.
Regulatory Authority means any national, international, regional, state or local regulatory agency, department, bureau,
commission, council or other Governmental Authority with authority over the distribution, importation, exportation, manufacture, production, use, storage, transport, clinical testing, pricing, sale or reimbursement of any Product, including the FDA,
the EMA, Health Canada and the MHLW.
Related Parties means, with respect to any Person, such Persons Affiliates
and the partners, directors, officers, employees, agents, trustees, administrators, managers, advisors and representatives of such Person and of such Persons Affiliates.
Relevant Calculation Date has the meaning set forth in Section 7.2(a) of the Agreement.
Representatives has the meaning set forth in Section 17.11 of the Agreement.
Required Holders means, at any time, the Noteholders of a majority of the outstanding aggregate face amount of all Notes
(exclusive of Notes then owned by the Issuer or any of its Affiliates, unless the Issuer or such Affiliates own 100% of the aggregate face amount of all Notes then outstanding).
Responsible Officer means any authorized officer of the Issuer with respect to the Operative Documents.
Revenue Interests Assignment Agreement means that certain Revenue Interests Assignment Agreement, dated as of
April 15, 2013, among the Parent, the Issuer, Ingalls and Arthur Koenig as amended by the Assignment of Interests, dated as of April 15, 2013, among the Parent, the Issuer, Ingalls and Arthur Koenig.
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Royalty or Royalties means, without duplication, one
hundred percent (100%) of (a) all royalties paid, owed, accrued or otherwise payable by Counterparty under Section 3.2 of the License Agreement with respect to Net Sales of any Product, (b) all royalties paid, owed, accrued or
otherwise payable by Counterparty under Section 5.3 of the Manufacturing Agreement with respect to Net Sales of any Product, (c) all amounts paid, owed, accrued or otherwise payable by Counterparty under Section 4.3 of the License
Agreement with respect to the royalties referenced in clause (a) above, (d) all amounts paid, owed, accrued or otherwise payable by Counterparty under Section 6.3 of the Manufacturing Agreement with respect to the royalties referenced
in clause (b) above, (e) all amounts paid, owed, accrued or otherwise payable by Counterparty under Section 4.5 of the License Agreement with respect to the royalties referenced in clause (a) above, (f) all amounts paid,
owed, accrued or otherwise payable by Counterparty under Section 6.5 of the Manufacturing Agreement with respect to the royalties referenced in clause (b) above, (g) all amounts equal to the royalty that would otherwise be payable
pursuant to Section 3.2 of the License Agreement on all proceeds (including any damages, monetary awards or other amounts recovered, whether by judgment or settlement and treating such proceeds as Net Sales of a Product (provided, that, with
respect to any Combination Vaccine, the portion of such proceeds treated as Net Sales shall be calculated on the same basis as Net Sales for such Combination Vaccine would be calculated under the License Agreement) for purposes of calculating such
royalty) paid, owed, accrued or otherwise payable to the Issuer of any suit, proceeding or other legal action taken pursuant to Section 11.3 of the License Agreement in accordance with Section 11.5 of the License Agreement and arising from
or related to infringement that results in reduced sales of any Product (other than amounts awarded to or recovered by the Issuer in connection with any judgment or settlement for reimbursement of the costs and expenses (including attorneys
fees) of bringing such suit or proceeding or taking such other legal action or for other reimbursement of the costs and expenses (including attorneys fees), if any, of the Issuer related to the prosecution of any such suit, proceeding or other
legal action), (h) all royalties paid, owed, accrued or otherwise payable by Counterparty under the last sentence of Section 8.4(c) of the Manufacturing Agreement with respect to Net Sales of any Product, (i) all interest paid, owed,
accrued or otherwise payable by Counterparty under Section 4.6 of the License Agreement with respect to any of the foregoing amounts, (j) all interest paid, owed, accrued or otherwise payable by Counterparty under Section 6.6 of the
Manufacturing Agreement with respect to any of the foregoing amounts and (k) all proceeds (including any damages, monetary awards or other amounts recovered, whether by judgment or settlement) paid, owed, accrued or otherwise payable with
respect to any of the foregoing of any suit, proceeding or other legal action taken to enforce the right to receive any of the foregoing (other than amounts awarded or recovered in connection with any judgment or settlement for reimbursement of the
costs and expenses (including attorneys fees) of the party bringing such suit or proceeding or taking such other legal action).
Sanctioned Country means a country subject to a sanctions program identified on the list maintained by OFAC and available
at http://www.treas.gov/offices/enforcement/ofac/programs/, or as otherwise published from time to time.
Sanctioned
Person means (i) a Person named on the list of Specially Designated Nationals or Blocked Persons maintained by OFAC available at http://www.treas.gov/offices/enforcement/ofac/sdn/index.shtml, or as otherwise published from
A-17
time to time, or (ii)(A) an agency of the government of a Sanctioned Country, (B) an organization controlled by a Sanctioned Country or (C) a Person resident in a Sanctioned Country, to
the extent subject to a sanctions program administered by OFAC.
SEC means the United States Securities and Exchange
Commission.
SEC Reports means, collectively, all reports, schedules, forms, statements and other documents required to
be filed by the Parent with the SEC under the Securities Act and the Exchange Act, including pursuant to Section 13(a) or 15(d) thereof, as well as the exhibits thereto and documents incorporated by reference therein.
Secured Parties means the Collateral Agent, the Purchasers and the Noteholders.
Securities Act means the U.S. Securities Act of 1933, as amended, and the regulations thereunder.
Shingles Products means (a) the vaccine, currently designated as Shingrix (HZ/su), that is currently being developed
by Counterparty for shingles (herpes zoster), including such vaccine as it may be modified or improved and any Combination Vaccine that includes such vaccine (including as it may be modified or improved) and (b) any other QS-21 Vaccine for
shingles (herpes zoster), including as any such other QS-21 Vaccine may be modified or improved and any Combination Vaccine that includes such other QS-21 Vaccine (including as such other QS-21 Vaccine may be modified or improved).
Specified Event of Default means any Event of Defaults pursuant to Section 10.1(a), (b)(i), (b)(iii), (b)(iv), (c)(i),
(d)(i), (d)(ii), (d)(iv), (e), (f), (g) or (h).
Statement Date has the meaning set forth in Section 5.15 of
the Agreement.
Subsidiary means, with respect to any Person, any other Person of which more than 50% of the
outstanding Voting Securities of such other Person (irrespective of whether at the time Capital Securities of any other class or classes of such other Person shall or might have voting power upon the occurrence of any contingency) is at the time
directly or indirectly owned or controlled by such Person, by such Person and one or more other Subsidiaries of such Person or by one or more other Subsidiaries of such Person (including, with respect to the Parent, Arnonex Pharmaceuticals, Inc., a
Delaware corporation, Antigenics Therapeutics Limited, organized and registered under the laws of Ireland and 4-Antibody AG, organized under the laws of Switzerland). Any reference to a Subsidiary shall, unless the context otherwise requires, be
deemed to be a Subsidiary of the Parent.
Subsidiary Guarantor means Aronex Pharmaceuticals, Inc., and each Domestic
Subsidiary that becomes party to the Agreement pursuant to Section 9.18(a).
Taxes means (a) any and all
taxes, fees, levies, duties, tariffs, imposts and other charges of any kind (together with any and all interest, penalties, loss, damage, liability, expense, additions to tax and additional amounts or costs incurred or imposed with respect thereto)
now or hereafter imposed, levied, collected, withheld or otherwise assessed by the United States or by any state, local, foreign or other Governmental Authority (or any subdivision or agency thereof)
A-18
or other taxing authority, including taxes or other charges on or with respect to income, franchise, windfall or other profits, gross receipts, property, sales, use, capital stock, payroll,
employment, social security, workers compensation, unemployment compensation or net worth and similar charges and taxes or other charges in the nature of excise, deduction, withholding, ad valorem, stamp, transfer, value added, taxes on goods
and services, escheat, gains taxes, license, registration and documentation fees, customs duties, tariffs and similar charges, (b) liability for such a tax that is imposed by reason of United States Treasury Regulation Section 1.1502-6 or
similar provision of Applicable Law and (c) liability for the payment of any amounts as a result of any express or implied obligation to indemnify any other Person with respect to the payment of any amounts described in clause (a) or
clause (b).
Third Party means any Person other than (a) any Note Party, (b) the Collateral Agent and the
Noteholders or (c) an Affiliate of any Note Party.
Trust Indenture Act means the U.S. Trust Indenture Act of
1939, as amended, and the regulations thereunder.
UCC means the Uniform Commercial Code as in effect from time to time
in the State of New York; provided, that, if, with respect to any financing statement or by reason of any provisions of Applicable Law, the perfection or the effect of perfection or non-perfection of the Liens granted to the Collateral Agent
pursuant to the applicable Operative Document is governed by the Uniform Commercial Code as in effect in a jurisdiction of the United States other than the State of New York, then UCC means the Uniform Commercial Code as in effect
from time to time in such other jurisdiction for purposes of the provisions of each Operative Document and any financing statement relating to such perfection or effect of perfection or non-perfection.
U.S. or United States means the United States of America, its 50 states, each territory thereof and the
District of Columbia.
Valid Claim has the meaning set forth in the License Agreement.
Voluntary Bankruptcy means, with respect to a Note Party, (a) an admission in writing such Note Party of its inability
to pay its debts generally or a general assignment by such Note Party for the benefit of creditors, or (b) the filing of any petition or answer by, or with the consent or acquiescence of, such Note Party seeking to adjudicate such Note Party as
bankrupt or insolvent, or seeking any liquidation, winding-up, reorganization, arrangement, adjustment, protection, relief or composition of such Note Party or its debts under any Applicable Law relating to bankruptcy, insolvency, receivership,
winding-up, liquidation, reorganization, examination, relief of debtors or other similar Applicable Law now or hereafter in effect, or seeking, consenting to or acquiescing in the entry of an order for relief in any case under any such Applicable
Law, or the appointment of, application for, consent to or taking possession by a receiver, trustee, custodian, liquidator, examiner, assignee, sequestrator or other similar official for such Note Party or for any substantial part of its property.
Voting Securities means, with respect to any Person, Capital Securities of any class or kind ordinarily having the
power to vote for the election of directors, managers or other voting members of the governing body of such Person.
A-19
Exhibit A
to Note Purchase Agreement
FORM OF PURCHASER ADDENDUM
This
PURCHASER ADDENDUM (this Purchaser Addendum) dated as of September 4, 2015 is executed by the undersigned in connection with that certain Note Purchase Agreement, dated as of September 4, 2015 (the Note Purchase
Agreement), among Antigenics LLC, a Delaware limited liability company, the guarantors named therein, Oberland Capital SA Zermatt LLC, as the Collateral Agent, and the purchasers named therein (the Purchasers).
Capitalized terms not otherwise defined herein are being used herein as defined in the Note Purchase Agreement
1. By execution and delivery hereof to the
Collateral Agent, the undersigned shall become a party to the Note Purchase Agreement as a Purchaser and a Noteholder and, subject to the terms and conditions of the Note Purchase Agreement, agrees to purchase Original Notes and Additional Notes in
the original principal amounts set forth below:
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Original Notes: |
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Additional Notes: |
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2. The undersigned expressly assumes all the obligations of a Purchaser, and hereby makes all of the representations and
warranties set forth in Article IV with respect to itself, under the Note Purchase Agreement.
3. The undersigneds address and fax number for
notices under the Note Purchase Agreement shall be the address and fax number set forth below its signature to this Purchaser Addendum.
4. The
undersigneds notice information for purposes of Section 17.4 of the Note Purchase Agreement and wire instructions for purposes of Article VIII of the Note Purchase Agreement shall be as follows:
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Address: |
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Attn: |
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Facsimile: |
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[Insert wire instructions]
5. This Purchaser Addendum shall be deemed to be a part of, and a modification to, the Note Purchase Agreement and shall be governed by all the terms and
provisions of the Note Purchase Agreement, which shall continue in full force and effect as modified hereby as a valid and binding agreement of the undersigned enforceable against such person or entity.
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Portions of this Exhibit were omitted and have been filed separately with the Secretary of the Commission pursuant to the Companys application requesting confidential treatment under Rule 24b-2 of the Exchange Act;
[
***
] denotes omissions. |
IN WITNESS WHEREOF, the undersigned has caused this Purchaser Addendum to be duly executed and delivered as of
the day and year first written above:
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PURCHASER: |
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[NAME] |
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Name: |
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Title: |
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Exhibit B
to Note Purchase Agreement
THIS NOTE HAS
NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE SECURITIES ACT), THE SECURITIES LAWS OF ANY STATE OR THE SECURITIES LAWS OF ANY OTHER JURISDICTION, NOR IS SUCH REGISTRATION CONTEMPLATED. NEITHER THIS
NOTE NOR ANY INTEREST HEREIN MAY BE ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED, SOLD OR OFFERED FOR SALE OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION UNDER THE SECURITIES ACT OR AN EXEMPTION FROM SUCH REGISTRATION THEREUNDER AND ANY
OTHER APPLICABLE SECURITIES LAW REGISTRATION REQUIREMENTS. UNLESS OTHERWISE AGREED BY THE ISSUER, EACH PERSON WHO ACQUIRES OR ACCEPTS THIS NOTE OR AN INTEREST HEREIN BY SUCH ACQUISITION OR ACCEPTANCE (1) REPRESENTS THAT (A) IT IS A
QUALIFIED INSTITUTIONAL BUYER (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) AND IS PURCHASING THIS NOTE IN A TRANSACTION MEETING THE REQUIREMENTS OF SECTION 4(a)(2) OF THE SECURITIES ACT OR ANOTHER AVAILABLE EXEMPTION THEREUNDER OR (B) IT
IS AN INSTITUTIONAL ACCREDITED INVESTOR AS DEFINED IN SUBPARAGRAPH (a) (1), (2), (3) OR (7) OF RULE 501 UNDER THE SECURITIES ACT (AN INSTITUTIONAL ACCREDITED INVESTOR), HAS SUFFICIENT KNOWLEDGE AND EXPERIENCE IN FINANCIAL
AND BUSINESS MATTERS TO BE CAPABLE OF EVALUATING THE MERITS AND RISKS OF THE PURCHASE OF THIS NOTE AND IS ABLE AND PREPARED TO BEAR THE ECONOMIC RISK OF INVESTING IN AND HOLDING THIS NOTE, (2) AGREES THAT IT WILL NOT OFFER, SELL OR OTHERWISE
TRANSFER THIS NOTE OR AN INTEREST HEREIN, EXCEPT (A) TO THE ISSUER OF THIS NOTE OR A GUARANTOR OF THE NOTES, (B) FOR SO LONG AS THIS NOTE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE SECURITIES ACT, TO AN ENTITY IT REASONABLY
BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER AND THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER, TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A UNDER THE SECURITIES ACT OR
(C) TO AN INSTITUTIONAL ACCREDITED INVESTOR THAT IS PURCHASING THIS NOTE OR AN INTEREST HEREIN, AS THE CASE MAY BE, FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF SUCH AN INSTITUTIONAL ACCREDITED INVESTOR FOR INVESTMENT PURPOSES AND NOT WITH A VIEW
TO, OR FOR OFFER OR SALE IN CONNECTION WITH, ANY DISTRIBUTION IN VIOLATION OF THE SECURITIES ACT AND (3) AGREES THAT IT WILL GIVE TO EACH PERSON TO WHOM THIS NOTE OR AN INTEREST HEREIN IS TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS
LEGEND.
THIS NOTE MAY NOT BE RESOLD OR TRANSFERRED EXCEPT AS SET FORTH IN THE NOTE PURCHASE AGREEMENT REFERRED TO HEREINAFTER.
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Portions of this Exhibit were omitted and have been filed separately with the Secretary of the Commission pursuant to the Companys application requesting confidential treatment under Rule 24b-2 of the Exchange Act;
[
***
] denotes omissions. |
THIS NOTE IS ISSUED WITH ORIGINAL ISSUE DISCOUNT WITHIN THE MEANING OF SECTION 1273 OF THE
INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE CODE). PLEASE CONTACT EVAN BALLANTYNE AT 3 FORBES ROAD, LEXINGTON, MASSACHUSETTS 02421; TELEPHONE: (781) 674-4414 TO OBTAIN INFORMATION REGARDING THE ISSUE PRICE, THE AMOUNT OF ORIGINAL
ISSUE DISCOUNT AND YIELD TO MATURITY.
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Portions of this Exhibit were omitted and have been filed separately with the Secretary of the Commission pursuant to the Companys application requesting confidential treatment under Rule 24b-2 of the Exchange Act;
[
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] denotes omissions. |
ANTIGENICS LLC
LIMITED RECOURSE NOTE
No.
{ }
CUSIP: 03703L AB3
Initial Principal Amount: U.S. $ { }
ANTIGENICS LLC, a Delaware limited liability company (herein referred to as the Issuer), for value received, hereby
promises to pay to { }, the amounts set forth below in this Note at the times set forth below in this Note.
This Note is one of a series of Limited Recourse Notes issued pursuant to the Note Purchase Agreement dated September 4, 2015 (as from
time to time amended, the Note Purchase Agreement) among the Issuer, the Parent, Oberland Capital SA Zermatt LLC, as the collateral agent, the guarantors from time to time party thereto and the Purchasers named therein and is
entitled to the benefits thereof and subject to the obligations thereof. Each holder of this Note, including any transferee, will be deemed, by its acceptance hereof, to have made the representations set forth in Article IV of the Note Purchase
Agreement and accepted all obligations with respect to this Note under the Note Purchase Agreement. Unless otherwise indicated, capitalized terms used in this Note shall have the respective meanings ascribed to such terms in the Note Purchase
Agreement. Without limitation, the exercise of remedies relating to this Note and the Note Purchase Agreement shall be subject to the provisions and limitations of the Note Purchase Agreement and the other Operative Documents.
The Issuer shall cause all Counterparty Payments to be deposited into the Collateral Account pursuant to the terms of the Note Purchase
Agreement.
The Issuer hereby authorizes and directs the Collateral Agent, on each Payment Date, to cause to be paid from the Collection
Account, to the record holder of this Note as of the close of business on the Relevant Calculated Date for such Payment Date, the Note Payments in accordance with the terms of the Note Purchase Agreement.
Payments on this Note are to be made in lawful money of the United States of America at the principal office of the Issuer or at such other
place as the Issuer shall have designated by written notice to the holder of this Note or as otherwise provided in the Note Purchase Agreement.
This Note is a registered Note and, as provided in the Note Purchase Agreement, upon surrender of this Note for registration of transfer
accompanied by a written instrument of transfer duly executed in the form attached to this Note (and accompanied by the relevant name, address and other information for notices of each transferee of this Note or part thereof, and accompanied by any
other evidence of satisfaction with the restrictions and requirements applicable to transfers of this Note set forth in the Note Purchase Agreement and the legend set forth on the
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Portions of this Exhibit were omitted and have been filed separately with the Secretary of the Commission pursuant to the Companys application requesting confidential treatment under Rule 24b-2 of the Exchange Act;
[
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] denotes omissions. |
face of this Note as reasonably requested by the Issuer), by the registered holder hereof or such holders attorney duly authorized in writing, a new Note for a like face amount will be
issued to, and registered in the name of, the transferee. Prior to due presentment for registration of transfer, the Issuer shall be entitled to deem and treat the Person in whose name this Note is registered as the owner hereof for the purpose of
receiving payment and for all other purposes, and the Issuer will not be affected by any notice to the contrary.
Prior to any sale or
other disposition of this Note, the holder of this Note will surrender this Note to the Issuer in exchange for a new Note or Notes pursuant to Section 12.2 of the Note Purchase Agreement.
If a Specified Event of Default occurs and is continuing, this Note may be declared or otherwise become due and payable in the manner, in the
amount and with the effect provided in the Note Purchase Agreement.
This Note is issued in definitive form pursuant to the Note Purchase
Agreement in denominations of at least $250,000 face amount. This Note is and will be secured by the Collateral pledged as security therefor as provided in the Note Purchase Agreement and the Pledge Agreement.
Anything in the Note Purchase Agreement or this Note to the contrary notwithstanding, any Noteholder Payment on this Note that is due on a
date other than a Business Day shall be made on the next succeeding Business Day.
This Note shall be construed and enforced in accordance
with, and the rights of the Issuer and the holder of this Note shall be governed by, the law of the State of New York, excluding choice-of-law principles of the law of the State of New York that would permit the application of the laws of a
jurisdiction other than the State of New York.
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Portions of this Exhibit were omitted and have been filed separately with the Secretary of the Commission pursuant to the Companys application requesting confidential treatment under Rule 24b-2 of the Exchange Act;
[
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] denotes omissions. |
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ANTIGENICS LLC |
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By: |
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Name: |
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Title: |
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Portions of this Exhibit were omitted and have been filed separately with the Secretary of the Commission pursuant to the Companys application requesting confidential treatment under Rule 24b-2 of the Exchange Act;
[
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] denotes omissions. |
Exhibit C
to Note Purchase Agreement
PLEDGE AND SECURITY AGREEMENT
dated as of September , 2015
by and between
ANTIGENICS LLC
a
Delaware limited liability company,
as Pledgor,
and
OBERLAND CAPITAL
SA ZERMATT LLC,
as Collateral Agent
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Portions of this Exhibit were omitted and have been filed separately with the Secretary of the Commission pursuant to the Companys application requesting confidential treatment under Rule 24b-2 of the Exchange Act;
[
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] denotes omissions. |
Table of Contents
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Page |
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ARTICLE 1 RULES OF CONSTRUCTION AND DEFINED TERMS |
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1 |
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Section 1.01 |
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Rules of Construction and Defined Terms |
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1 |
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Section 1.02 |
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UCC Definitions |
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1 |
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Section 1.03 |
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Other Definitional Provisions |
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1 |
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Section 1.04 |
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Powers of Attorney |
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2 |
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Section 1.05 |
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Captions |
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2 |
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Section 1.06 |
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Additional Defined Terms |
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2 |
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ARTICLE 2 GRANT OF SECURITY INTEREST |
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3 |
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Section 2.01 |
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Grant of Security Interest |
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3 |
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Section 2.02 |
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Validity and Priority of Security Interest |
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4 |
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Section 2.03 |
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Maintenance of Status of Security Interest |
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4 |
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Section 2.04 |
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Establishment of Pledged Accounts |
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4 |
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Section 2.05 |
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Pledgor Remains Liable |
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4 |
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ARTICLE 3 CERTAIN REPRESENTATIONS AND WARRANTIES |
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5 |
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Section 3.01 |
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Ownership |
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5 |
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Section 3.02 |
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Security Interest and Priority |
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5 |
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Section 3.03 |
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Consents |
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5 |
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Section 3.04 |
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No Restrictions |
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5 |
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ARTICLE 4 CERTAIN COVENANTS |
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5 |
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Section 4.01 |
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Ownership and Defense of Collateral |
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5 |
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Section 4.02 |
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Existence |
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6 |
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Section 4.03 |
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Taxes; Compliance |
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6 |
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Section 4.04 |
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No Disposition of Collateral |
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6 |
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Section 4.05 |
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Pledged Accounts |
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6 |
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Section 4.06 |
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Change of Name, Locations, etc. |
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Section 4.07 |
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Further Assurances |
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7 |
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ARTICLE 5 EVENT OF DEFAULT |
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7 |
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Section 5.01 |
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Remedies |
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Section 5.02 |
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Application to Court |
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9 |
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Section 5.03 |
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Application of Proceeds |
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9 |
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ARTICLE 6 RIGHTS OF THE COLLATERAL AGENT |
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10 |
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Section 6.01 |
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The Collateral Agent; Standard of Care |
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10 |
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Section 6.02 |
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Power of Attorney |
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10 |
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Section 6.03 |
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Assignment by the Collateral Agent |
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ARTICLE 7 TERMINATION AND RELEASE |
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11 |
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Section 7.01 |
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Termination and Release |
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11 |
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Portions of this Exhibit were omitted and have been filed separately with the Secretary of the Commission pursuant to the Companys application requesting confidential treatment under Rule 24b-2 of the Exchange Act;
[
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] denotes omissions. |
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Table of Contents
(continued)
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ARTICLE 8 MISCELLANEOUS |
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12 |
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Section 8.01 |
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Expenses and Right to Perform |
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12 |
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Section 8.02 |
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Expenses; Indemnification |
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12 |
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Section 8.03 |
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No Waivers of Rights Hereunder; Rights Cumulative |
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13 |
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Section 8.04 |
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Governing Law |
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13 |
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Section 8.05 |
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LIMITATION OF LIABILITY |
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14 |
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Section 8.06 |
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Severability of Provisions |
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15 |
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Section 8.07 |
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Counterparts |
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15 |
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Section 8.08 |
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Survival of Obligations |
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15 |
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Section 8.09 |
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Survival of Representations and Warranties |
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15 |
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Section 8.10 |
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Successors and Assigns |
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15 |
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Section 8.11 |
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Notices |
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15 |
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Portions of this Exhibit were omitted and have been filed separately with the Secretary of the Commission pursuant to the Companys application requesting confidential treatment under Rule 24b-2 of the Exchange Act;
[
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] denotes omissions. |
-ii-
PLEDGE AND SECURITY AGREEMENT
This PLEDGE AND SECURITY AGREEMENT (this Pledge Agreement), dated as of September , 2015, is by and
between ANTIGENICS LLC, a Delaware limited liability company (the Pledgor), and OBERLAND CAPITAL SA ZERMATT LLC, a Delaware limited liability company (Oberland), acting in its capacity as collateral agent (in
such capacity, together with its successors and assigns in such capacity, the Collateral Agent) for the benefit of the Secured Parties.
The Pledgor has entered into that certain Note Purchase Agreement dated the date hereof (as the same may be amended, restated, supplemented or
otherwise modified from time to time, the Note Purchase Agreement with Agenus Inc., the guarantors from time to time party thereto and the purchasers named therein, providing for the issue and sale by the Pledgor of its Limited
Recourse Notes (the Notes).
To secure the payment and performance of all of the obligations under the Note Purchase
Agreement and the Notes, the Pledgor has agreed (i) to pledge to the Collateral Agent, for the benefit of the Secured Parties, a security interest in the Collateral and (ii) to execute and deliver this Pledge Agreement.
IT IS HEREBY COVENANTED AND AGREED among the parties hereto as follows:
ARTICLE I
RULES OF
CONSTRUCTION AND DEFINED TERMS
Section 1.1 Rules of Construction and Defined Terms. The rules of construction set forth in
Annex A to the Note Purchase Agreement shall apply to this Pledge Agreement and are hereby incorporated by reference into this Pledge Agreement as if set forth fully in this Pledge Agreement. Capitalized Terms used herein and not otherwise
defined in this Pledge Agreement shall have the respective meanings given to such terms in Annex A, which is hereby incorporated by reference into this Pledge Agreement as if set forth fully in this Agreement.
Section 1.2 UCC Definitions. All lowercase terms used herein that are defined in Article 1, 8 or 9 of the UCC, as in effect on the
date of this Pledge Agreement, are used herein with the meanings therein ascribed to them. In addition, the term deposit account includes an account evidenced by a certificate of deposit.
Section 1.3 Other Definitional Provisions. Except as otherwise specified herein, all references herein (a) to any Person
shall be deemed to include such Persons successors and assigns, (b) to any Applicable Law defined or referred to herein shall be deemed references to such Applicable Law as the same may have been or may be amended or supplemented from
time to time and (c) to any Operative Document defined or referred to herein shall be deemed references to such Operative Document (and, in the case of any instrument, any other instrument issued in substitution therefor) as the terms thereof
may have been or may be amended, supplemented, waived or otherwise modified from time to time. When used in this Agreement, the words herein, hereof and hereunder and words of similar import
shall refer to this Agreement as a whole and not to any provision of this Agreement, and the words Article, Section and Schedule shall refer to Articles and Sections of, and Schedules to, this
Agreement unless otherwise specified.
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Portions of this Exhibit were omitted and have been filed separately with the Secretary of the Commission pursuant to the Companys application requesting confidential treatment under Rule 24b-2 of the Exchange Act;
[
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] denotes omissions. |
Section 1.4 Powers of Attorney. Each power of attorney, license and other
authorization in favor of the Collateral Agent or any other Person granted by or pursuant to this Agreement shall be deemed to be irrevocable and coupled with an interest.
Section 1.5 Captions. Captions to Articles and Sections of, and Schedules to, this Agreement are included for convenience of
reference only and shall not constitute a part of this Agreement for any other purpose or in any way affect the meaning or construction of any provision of this Agreement.
Section 1.6 Additional Defined Terms. For purposes of this Agreement, the following terms shall have the meanings set forth below:
Audit and Report Rights means (a) all of the Pledgors rights to receive the reports produced by
Counterparty in respect of sales of the Products pursuant to Section 4.2 of the License Agreement and Section 6.2 of the Manufacturing Agreement, and (b) all of the Issuers rights to audit records of the Counterparty in respect
of such sales pursuant to Section 4.5 of the License Agreement and Section 6.5 of the Manufacturing Agreement with respect to periods commencing on or after the date hereof,
Collateral means (a) the Royalties, all Accounts and Payment Intangibles relating thereto, and all rights of the
Pledgor under the Applicable Agreements or otherwise in respect of, or arising under, the Royalties (including any enforcement rights under the Counterparty License Agreement in respect thereof), (b) Audit and Report Rights, (c) all
Pledged Accounts, (d) all documents of title, policies and certificates of insurance, securities, chattel paper and other documents or instruments evidencing or pertaining to any of the foregoing property of the Pledgor, (e) all books and
records that at any time evidence or contain information relating to any of the foregoing or are otherwise necessary or helpful in the collection or realization thereof, and (f) all proceeds and products of any of the foregoing property.
Collateral Document Related Claim means any claim (whether civil, criminal or administrative and whether sounding in tort,
contract or otherwise) in any way arising out of, related to, or connected with, the Collateral Documents, the relationships established thereunder or the Collateral, whether such claim arises or is asserted before or after the date hereof or before
or after the release of the Security Interest.
Collateral Documents means this Pledge Agreement and all other
agreements, documents and instruments related to or arising out of, this Pledge Agreement or the transactions contemplated hereby.
Collection Account means a separate bank account of the Pledgor into which all Counterparty Payments will be deposited.
Eligible Institution means any bank organized under the laws of the United States or any state thereof or the District
of Columbia (or any domestic branch of a foreign bank), which bank shall be reasonably acceptable to the Collateral Agent.
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Portions of this Exhibit were omitted and have been filed separately with the Secretary of the Commission pursuant to the Companys application requesting confidential treatment under Rule 24b-2 of the Exchange Act;
[
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] denotes omissions. |
Indemnified Person means any Person that is, or at any time was, the
Collateral Agent, a Noteholder, an Affiliate of the Collateral Agent or a Noteholder or a director, officer, employee or agent of any such Person.
Moodys means Moodys Investors Service, Inc.
Pledged Account means (a) the Collection Account and each other deposit, securities, custody or other account
established pursuant to Section 2.04, (b) each deposit, securities, custody or other account (whether, in any case, time or demand or interest or non-interest bearing and whether maintained at a branch or office located within or without
the United States) that is a successor to the Collection Account or any such other account, (c) all amounts from time to time credited to a Pledged Account, (d) all cash, financial assets, investment property, instruments, documents,
chattel paper, general intangibles, accounts and other property (i) from time to time credited to a Pledged Account or (ii) representing investments and reinvestments of amounts from time to time credited to a Pledged Account, and
(e) (i) dividends (whether or not payable in cash), interest, principal payments and other distributions (including cash and securities payable in connection with calls, conversions, redemptions and the like), on, and all rights,
contractual and otherwise (whether such dividends, interest, principal payments and other distributions and rights constitute accounts, contract rights, investment property or general intangibles), arising under or connected with, and
(ii) proceeds (including cash and securities receivable in connection with tender and other offers) of, a Pledged Account.
Pledgor has the meaning specified in the introductory paragraph of this Pledge Agreement.
Security Interest means the continuing security interest of the Collateral Agent in, and the continuing lien of the
Collateral Agent upon, the Collateral intended to be effected by the terms of this Pledge Agreement.
Secured Parties
means the Collateral Agent, the Purchasers and the Noteholders.
Short Term Rating Requirement means a short-term
unsecured debt rating of not less than A-1 by Standard & Poors and not less than Prime-1 by Moodys.
Standard & Poors means Standard & Poors Ratings Services, a division of The McGraw-Hill
Companies, Inc.
ARTICLE II
GRANT OF SECURITY INTEREST
Section 2.1 Grant of Security Interest. To secure the payment, observance and performance of the Obligations, the Pledgor hereby
pledges and collaterally assigns to the Collateral Agent for the ratable benefit of the Secured Parties and grants to the Collateral Agent for the ratable benefit of the Secured Parties a continuing security interest in, and a continuing lien upon
all of the Pledgors right, title and interest in and to the Collateral.
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Portions of this Exhibit were omitted and have been filed separately with the Secretary of the Commission pursuant to the Companys application requesting confidential treatment under Rule 24b-2 of the Exchange Act;
[
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] denotes omissions. |
Section 2.2 Validity and Priority of Security Interest. The Pledgor agrees that the
Security Interest shall at all times prior to the termination or release thereof in accordance with Section 7.01 be valid, perfected and enforceable against the Pledgor, in accordance with the terms hereof, as security for the full and prompt
payment, at any time and from time to time as and when due, of the Obligations, and that the Collateral shall not, nor shall any financial asset that is the subject of any security entitlement that is Collateral, at any time be subject to any Lien
that is prior to, on a parity with or junior to such Security Interest, other than Permitted Liens.
Section 2.3 Maintenance of
Status of Security Interest.
(a) The Pledgor shall take all reasonable action, that may be necessary, or that the Collateral Agent
may reasonably request, so as at all times prior to the termination or release thereof in accordance with Section 7.01 (i) to maintain the validity, perfection, enforceability and priority of the Security Interest in the Collateral in
conformity with the requirements of Section 2.02, (ii) to protect and preserve the Collateral and (iii) to protect and preserve, and to enable the exercise or enforcement of, the rights of the Collateral Agent therein and hereunder.
(b) The Collateral Agent is hereby authorized from time to time to file one or more financing or continuation statements or amendments
thereto in the name of the Pledgor in such jurisdictions with such descriptions of collateral and other information set forth therein, or take any other action to perfect its security interests, in each case as the Collateral Agent may reasonably
deem necessary or desirable for the purpose of obtaining or preserving the full benefits of this Pledge Agreement and of the rights and powers herein granted.
Section 2.4 Establishment of Pledged Accounts. The Pledgor shall establish and maintain the Collection Account and may, with the
consent of the Collateral Agent, establish one or more additional Pledged Accounts. Each Pledged Account shall be established at the Collection Account Bank or other Eligible Institution in the name of the Pledgor and shall bear a designation
clearly indicating that the funds or other assets deposited therein are subject to the Liens granted under this Pledge Agreement and held for the benefit of the Collateral Agent. Each Pledged Account shall be subject to either (1) an escrow
agreement (with an escrow agent satisfactory to the Collateral Agent), pursuant to which the escrow agent shall acknowledge control (within the meaning of UCC Sections 8-106(d)(3) and 9-104) over such
Pledged Account on behalf of the Collateral Agent and escrow agent agrees to disburse the funds and other assets in such Pledged Account in accordance with Section 8.5 of the Note Purchase Agreement or, while a Specified Event of Default has
occurred and is continuing, as directed by the Collateral Agent pursuant to Article XI of the Note Purchase Agreement and Article 4 of this Pledge Agreement, or (2) a control agreement, pursuant to which the Collateral Agent shall have sole
dominion and control over such Pledged Account in accordance with UCC Section 8-106(d) or 9-104, as applicable. The Pledgor shall take all actions necessary or as reasonably requested by the Collateral Agent to ensure that the Collateral Agent
shall have a perfected security interest in each Pledged Account; provided that the Pledgor shall have 30 days from the date hereof to cause the Collection Account to comply with the terms of this Section 2.04.
Section 2.5 Pledgor Remains Liable. The grant by the Pledgor to the Collateral Agent of the Security Interest shall not relieve
the Pledgor of any obligations owing to any Person under or in respect of the Collateral.
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Portions of this Exhibit were omitted and have been filed separately with the Secretary of the Commission pursuant to the Companys application requesting confidential treatment under Rule 24b-2 of the Exchange Act;
[
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] denotes omissions. |
ARTICLE III
CERTAIN REPRESENTATIONS AND WARRANTIES
The Pledgor hereby represents and warrants as of the date hereof as follows:
Section 3.1 Ownership. The Pledgor has good title to, and is the sole owner of, each asset that is Collateral, free and clear of
any Lien other than Permitted Liens, and has the right to pledge and grant a security interest in the Collateral. No currently effective security agreement, financing statement or other public notice with respect to all or any part of the Collateral
is on file or of record in any government or public office, and the Pledgor has not filed or consented to the filing of any such statement or notice, except as may be otherwise permitted by the Note Purchase Agreement
Section 3.2 Security Interest and Priority. Upon the filing of a financing statement under the UCC and the entry into the Account
Control Agreement, this Pledge Agreement shall create a valid and perfected first-priority security interest in favor of the Collateral Agent, for the ratable benefit of the Secured Parties, in the Collateral.
Section 3.3 Consents. (A) No approval, consent, exemption, authorization or other action by, notice to, or filing with, any
United States Governmental Authority or any other Person (including any stockholder, member or creditor of the Pledgor) is necessary or required for (a) the grant by the Pledgor of the security interest in the Collateral granted hereby or for
the execution, delivery or performance of this Pledge Agreement by the Pledgor or (b) the perfection of such security interest (to the extent such security interest can be perfected by the granting of control), and (B) no approval,
consent, exemption, authorization or other action by, notice to, or filing with any Person (including any stockholder, member or creditor of the Pledgor) on the part of the Pledgor is necessary for the exercise by the Collateral Agent of the rights
and remedies provided for in this Pledge Agreement, except, in each case, (i) filing financing statements or obtaining control to perfect the liens created by this Pledge Agreement and (ii) consents, authorizations, filings or other
actions that have been obtained or made.
Section 3.4 No Restrictions. There are no statutory or regulatory restrictions,
prohibitions or limitations on Pledgors ability to grant to the Collateral Agent a Lien upon and security interest in the Collateral pursuant to this Pledge Agreement or (except as imposed by Applicable Law) on the exercise by the Collateral
Agent of its rights and remedies hereunder (including any foreclosure upon or collection of the Collateral), and there are no contractual restrictions on Pledgors ability to grant such Lien and security interest.
ARTICLE IV
CERTAIN COVENANTS
Section 4.1 Ownership and Defense of Collateral. The Pledgor shall at all times (a) have good title to, and be the sole
owner of, each asset that is Collateral, free of (i) in the case of any Collateral that is a financial asset, any adverse claim (as defined in Section 8-102(a)(1) of the UCC) and (ii) in the
case of any Collateral that is an instrument, any claim referred to in Section 3-305(1) of the UCC, in each case other than claims hereunder, and (b) defend the Collateral against the claims and demands of all third Persons.
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Portions of this Exhibit were omitted and have been filed separately with the Secretary of the Commission pursuant to the Companys application requesting confidential treatment under Rule 24b-2 of the Exchange Act;
[
***
] denotes omissions. |
Section 4.2 Existence. The Pledgor shall (a) preserve and maintain its corporate
existence, (b) preserve and maintain its rights, franchises, permits, licenses, approvals and privileges and (c) qualify and remain qualified in good standing in each jurisdiction, in each case where the failure to preserve and maintain
such existence, rights, franchises, permits, licenses, approvals, privileges and qualifications would be a Material Adverse Effect.
Section 4.3 Taxes; Compliance. Except as otherwise permitted in the Note Purchase Agreement, the Pledgor shall (a) pay or
cause to be paid when due all taxes, assessments and governmental charges levied or assessed or imposed upon or with respect to the Collateral or its sale or other disposition and (b) comply with all material Applicable Law relating to the
Collateral.
Section 4.4 No Disposition of Collateral. Except as otherwise permitted herein or in the Note Purchase Agreement,
the Pledgor shall not sell, lease, transfer or otherwise dispose of any Collateral, including (a) if the Collateral includes any securities accounts, any financial asset carried therein, or (b) if the Collateral includes any security
entitlements, any financial asset subject thereto, or any interest therein.
Section 4.5 Pledged Accounts.
(a) Except with respect to Pledged Accounts subject to an escrow agreement in accordance with Section 2.04, the Collateral Agent shall
(i) have exclusive dominion and control over the Collateral, including the exclusive right to make or permit withdrawals from Pledged Accounts and otherwise to deal with the Collateral, and (ii) administer the Pledged Accounts and cause
monies to be distributed to the Noteholders and the Pledgor out of the Pledged Accounts on the relevant dates set forth in the Note Purchase Agreement in accordance with the terms of Sections 9.4 thereof.
(b) Except as otherwise permitted herein, in any escrow agreement entered into in accordance with Section 2.04, or in the Note Purchase
Agreement, the Pledgor shall not draw against or otherwise attempt to withdraw any funds or other property from or credited to a Pledged Account.
Section 4.6 Change of Name, Locations, etc. Pledgor will not (i) change its name, identity or limited liability company
structure, (ii) change its chief executive office from the location thereof on the Closing Date, (iii) change the jurisdiction of its incorporation or organization from the jurisdiction on the Closing Date (whether by merger or otherwise),
(iv) file any document with the Internal Revenue Service using any name other than its exact legal name in existence on the Closing Date, or (v) remove any books, records or other information relating to the Collateral, from the its
location on the Closing Date, unless in each case Pledgor has (1) given twenty (20) days prior written notice to the Collateral Agent of its intention to do so, together with information regarding any such new location and such other
information in connection with such proposed action as the Collateral Agent may reasonably request, and (2) delivered to the Collateral Agent twenty (20) days following the Collateral Agents request
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Portions of this Exhibit were omitted and have been filed separately with the Secretary of the Commission pursuant to the Companys application requesting confidential treatment under Rule 24b-2 of the Exchange Act;
[
***
] denotes omissions. |
any documents, instruments or financing statements as may be reasonably required by the Collateral Agent, all in form and substance reasonably satisfactory to the Collateral Agent, paid all
necessary filing and recording fees and taxes, and taken all other actions reasonably requested by the Collateral Agent, in order to perfect and maintain the Lien upon and security interest in all of Pledgors right, title and interest in and
to the Collateral provided for herein in accordance with this Agreement.
Section 4.7 Further Assurances. Promptly upon the
request of the Collateral Agent and at the sole expense of the Pledgor, the Pledgor shall duly execute and deliver, and have recorded, such further instruments, financing statements and documents and take such further actions as the Collateral Agent
may reasonably request for the purpose of obtaining or preserving the full benefits of this Pledge Agreement and of the rights and powers herein granted, including to enable the Collateral Agent to exercise and enforce its rights and remedies
hereunder with respect to any Collateral, as may be required by Applicable Law.
ARTICLE V
EVENT OF DEFAULT
Section 5.1 Remedies. Upon the occurrence and during the continuance of a Specified Event of Default, the Collateral Agent is
hereby authorized to exercise in respect of the Collateral all of the rights, powers and remedies provided for herein or otherwise available to it under any other Operative Document, by law, in equity or otherwise, including all rights and remedies
of a secured party under the UCC, and shall be entitled in particular, but without limitation of the foregoing, to exercise the following rights to the extent not prohibited by Applicable Law, which Pledgor agrees to be commercially reasonable:
(i) To change the name in which any Pledged Account is maintained, or the number or other designation thereof, or both, including, if not
already in such name or bearing such a number or other designation, a change into the name of, a number designating, or a designation of, the Secured Party; change the number of signatures required to make an authorized withdrawal from any Pledged
Account; cancel any outstanding signature authorization entitling any Person to draw on any Pledged Account; and issue a new signature authorization entitling any Person to draw upon any Pledged Account, including, as such a Person, itself or any
Person or Persons designated by it;
(ii) To take possession of, receive, endorse, assign and deliver, in its own name or in the name of
Pledgor, all checks, notes, drafts and other instruments relating to any Collateral; to verify with contract parties the validity, amount or any other matter relating to any Collateral, in its own name or in the name of Pledgor; to accelerate any
Indebtedness or other obligation constituting Collateral that may be accelerated in accordance with its terms; to take or bring all actions and suits deemed necessary or appropriate by the Collateral Agent to effect collections and to enforce
payment of any Collateral; to settle, compromise or release in whole or in part any amounts owing on Collateral; and to extend the time of payment of any and all amounts owing under any Collateral and to make allowances and adjustments with respect
thereto, all in the same manner and to the same extent as Pledgor might have done;
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Portions of this Exhibit were omitted and have been filed separately with the Secretary of the Commission pursuant to the Companys application requesting confidential treatment under Rule 24b-2 of the Exchange Act;
[
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] denotes omissions. |
(iii) To transfer to or register in its name or the name of any of its agents or nominees all or
any part of the Collateral, without notice to Pledgor and with or without disclosing that such Collateral is subject to the security interest created hereunder;
(iv) To require Pledgor to, and Pledgor hereby agrees that it will at its expense and upon request of the Collateral Agent forthwith, assemble
all or any part of the Collateral as directed by the Collateral Agent and make it available to the Collateral Agent at a place designated by the Collateral Agent that is reasonably convenient to Collateral Agent and Pledgor;
(v) To obtain the appointment of a Receiver of the Collateral as provided in Section 5.02 and the Pledgor consents to and waives any
right to notice of any such appointment;
(vi) To the extent applicable, to enter and remain upon the premises of Pledgor and take
possession of all or any part of the Collateral, with or without judicial process; to use the materials, services, books and records of Pledgor for the purpose of liquidating or collecting the Collateral, whether by foreclosure, auction or
otherwise; and to remove the same to the premises of the Collateral Agent or any designated agent for such time as the Collateral Agent may desire, in order to effectively collect or liquidate the Collateral; and
(vii) (A) To demand, and enforce payment and performance of, and exercising any or all of the Pledgors rights and remedies with respect
to the collection, enforcement and prosecution of, any or all of the Collateral (including the Royalties and all Accounts and Payment Intangibles relating thereto), in each case by legal proceedings or otherwise, (B) settle, adjust, compromise,
extend, renew, discharge and release any or all of, and any legal proceedings brought to collect or enforce any or all of, the Royalties (and all Accounts and Payment Intangibles relating thereto that constitute Collateral) and otherwise under the
Operative Documents, and (C) prepare, file and sign in the name of the Pledgor on (1) any proof of claim or similar document to be filed in any bankruptcy or similar proceeding involving the Collateral (including the Royalties and all
Accounts and Payment Intangibles relating thereto that constitute Collateral), and (2) any notice of lien, assignment or satisfaction of lien, or similar document in connection with the Collateral (including the Royalties and all Accounts and
Payment Intangibles relating thereto that constitute Collateral);
(viii) In compliance with UCC Sections 9-620 and 9-621 or otherwise in
compliance with Applicable Law, to accept or retain the Collateral in satisfaction of the Obligations (provided that unless and until the Collateral Agent shall have provided such notices, the Collateral Agent shall not be deemed to have retained
any Collateral in satisfaction of any Obligations for any reason);
(ix) Instead of exercising the power of sale conferred upon it
pursuant to clause (x) below, to proceed by suit or suits at law or in equity to foreclose on the Security Interest and sell all or any portion of the Collateral under a judgment or a decree of a court or courts of competent jurisdiction; and
(x) To sell, resell, assign and deliver, in its sole discretion, all or any of the Collateral, in one or more parcels, at public or
private sale, at any of the Collateral Agents offices or
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Portions of this Exhibit were omitted and have been filed separately with the Secretary of the Commission pursuant to the Companys application requesting confidential treatment under Rule 24b-2 of the Exchange Act;
[
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] denotes omissions. |
elsewhere, for cash, upon credit or for future delivery, at such time or times and at such price or prices and upon such other terms as the Collateral Agent may deem satisfactory. If any of the
Collateral is sold by the Collateral Agent upon credit or for future delivery, the Collateral Agent shall not be liable for the failure of the purchaser to purchase or pay for the same and, in the event of any such failure, the Collateral Agent may
resell such Collateral. In no event shall any Pledgor be credited with any part of the proceeds of sale of any Collateral until and to the extent cash payment in respect thereof has actually been received by the Collateral Agent. Each purchaser at
any such sale shall hold the property sold absolutely, free from any claim or right of whatsoever kind, including any equity or right of redemption of Pledgor, and Pledgor hereby expressly waives all rights of redemption, stay or appraisal, and all
rights to require the Collateral Agent to marshal any assets in favor of Pledgor or any other party or against or in payment of any or all of the Obligations, that it has or may have under any rule of law or statute now existing or hereafter
adopted. No demand, presentment, protest, advertisement or notice of any kind (except any notice required by law, as referred to below), all of which are hereby expressly waived by Pledgor, shall be required in connection with any sale or other
disposition of any part of the Collateral. If any notice of a proposed sale or other disposition of any part of the Collateral shall be required under applicable law, the Collateral Agent shall give the Pledgor at least 10 days prior notice of
the time and place of any public sale and of the time after which any private sale or other disposition is to be made, which notice Pledgor agrees is commercially reasonable. The Collateral Agent shall not be obligated to make any sale of Collateral
if it shall determine not to do so, regardless of the fact that notice of sale may have been given. The Collateral Agent may, without notice or publication, adjourn any public or private sale or cause the same to be adjourned from time to time by
announcement at the time and place fixed for sale, and such sale may, without further notice, be made at the time and place to which the same was so adjourned. Upon each public sale and, to the extent permitted by applicable law, upon each private
sale, the Collateral Agent may purchase all or any of the Collateral being sold, free from any equity, right of redemption or other claim or demand, and may make payment therefor by endorsement and application (without recourse) of the Obligations
in lieu of cash as a credit on account of the purchase price for such Collateral.
For the avoidance of doubt, the Collateral Agent may
maintain a proceeding even if it does not possess any of the Notes or does not produce any of them in the proceeding.
Section 5.2
Application to Court. The Collateral Agent may at any time after the acceleration of the Notes pursuant to Section 11.1 of the Note Purchase Agreement apply to any court of competent jurisdiction for an order that the terms of the
Operative Documents be carried into execution under the direction of such court and for the appointment of a Receiver of the Collateral or any part thereof and for any other order in relation to the administration of the Operative Document as the
Collateral Agent shall deem fit, and it may assent to or approve any application to any court of competent jurisdiction made at the instigation of any of the Noteholders.
Section 5.3 Application of Proceeds. Upon the occurrence and during the continuance of a Specified Event of Default and after the
acceleration of the Notes pursuant to Section 11.1 of the Note Purchase Agreement or the other Obligations, all cash proceeds received by the Collateral Agent upon any sale of, collection of, or other realization upon, all or any part of the
Collateral and all amounts credited to the Pledged Accounts shall be applied in accordance with the Note Purchase Agreement and/or any escrow agreement entered into in accordance with Section 2.04.
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Portions of this Exhibit were omitted and have been filed separately with the Secretary of the Commission pursuant to the Companys application requesting confidential treatment under Rule 24b-2 of the Exchange Act;
[
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] denotes omissions. |
ARTICLE VI
RIGHTS OF THE COLLATERAL AGENT
Section 6.1 The Collateral Agent; Standard of Care. The Collateral Agent will hold all items of the Collateral at any time
received under this Pledge Agreement in accordance with the provisions hereof and Applicable Law and will exercise reasonable care with respect thereto. The obligations of the Collateral Agent as holder of the Collateral and interests therein and
with respect to the disposition thereof, and otherwise under this Pledge Agreement and the other Operative Documents, are only those expressly set forth in this Pledge Agreement and the other Operative Documents. The Collateral Agent shall act
hereunder at the direction, or with the consent, of the Purchasers on the terms and conditions set forth in the Note Purchase Agreement. The powers conferred on the Collateral Agent hereunder are solely to protect its interest, on behalf of the
Secured Parties, in the Collateral, and shall not impose any duty upon it to exercise any such powers. Except for treatment of the Collateral in its possession in a manner substantially equivalent to that which the Collateral Agent, in its
individual capacity, accords its own property of a similar nature, which standard shall in no event be less than reasonable care, and the accounting for moneys actually received by it hereunder, the Collateral Agent shall have no duty as to any
Collateral or as to the taking of any necessary steps to preserve rights against prior parties or any other rights pertaining to the Collateral. Neither the Collateral Agent nor any other Secured Party shall be liable to Pledgor (i) for any
loss or damage sustained by Pledgor, or (ii) for any loss, damage, depreciation or other diminution in the value of any of the Collateral that may occur as a result of or in connection with or that is in any way related to any exercise by the
Collateral Agent or any other Secured Party of any right or remedy under this Pledge Agreement, any failure to demand, collect or realize upon any of the Collateral or any delay in doing so, or any other act or failure to act on the part of the
Collateral Agent or any other Secured Party, except to the extent that the same is caused by its own gross negligence or willful misconduct.
Section 6.2 Power of Attorney. In addition to other powers of attorney contained herein, and notwithstanding anything to the
contrary contained herein or in the Note Purchase Agreement, the Pledgor hereby designates and appoints the Collateral Agent, on behalf of the Noteholders, and each of its designees or agents, as attorney-in-fact of the Pledgor, irrevocably and with
power of substitution, with authority to take any or all of the following actions upon the occurrence and during the continuance of a Specified Event of Default:
(a) to demand, collect, settle, compromise, adjust and give discharges and releases, all as the Collateral Agent may reasonably determine;
(b) to commence and prosecute any actions at any court for the purposes of collecting any Collateral and enforcing any other right in
respect thereof;
(c) to defend, settle or compromise any action brought and, in connection therewith, give such discharge or release as
the Collateral Agent may deem reasonably appropriate;
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(d) to sell, assign, transfer, make any agreement in respect of, or otherwise deal with or
exercise rights in respect of, any Collateral or the goods or services that have given rise thereto, as fully and completely as though the Collateral Agent were the absolute owner thereof for all purposes;
(e) to execute and deliver all assignments, conveyances, statements, financing statements, continuation financing statements, security
agreements, affidavits, notices and other agreements, instruments and documents that the Collateral Agent may determine necessary in order to perfect and maintain the security interests and liens granted in this Pledge Agreement and in order to
fully consummate all of the transactions contemplated herein;
(f) to institute any foreclosure proceedings that the Collateral Agent may
deem appropriate;
(g) to sign and endorse any drafts, assignments, proxies, stock powers, verifications, notices and other documents
relating to the Collateral;
(h) to pay or discharge Taxes, liens, security interests or other encumbrances levied or placed on or
threatened against the Collateral;
(i) to direct any parties liable for any payment in connection with any of the Collateral to make
payment of any and all monies due and to become due thereunder directly to the Collateral Agent or as the Collateral Agent shall direct;
(j) to receive payment of and receipt for any and all monies, claims and other amounts due and to become due at any time in respect of or
arising out of any Collateral; and
(k) to do and perform all such other acts and things as the Collateral Agent may reasonably deem to be
necessary, proper or convenient in connection with the Collateral.
This power of attorney is a power coupled with an interest and shall
be irrevocable until the Notes are paid or converted in accordance with the terms thereof. This power of attorney is conferred on the Collateral Agent solely to protect, preserve and realize upon its security interest in the Collateral and shall not
impose any duty upon the Collateral Agent or any other Noteholder to exercise any such powers.
Section 6.3 Assignment by the
Collateral Agent. The Collateral Agent may from time to time assign the Obligations to a successor Collateral Agent appointed in accordance with the Note Purchase Agreement, and such successor shall be entitled to all of the
rights and remedies of the Collateral Agent under this Pledge Agreement in relation thereto.
ARTICLE VII
TERMINATION AND RELEASE
Section 7.1 Termination and Release. Upon the satisfaction and payment in full of all Obligations, the security interest and liens
granted hereby shall automatically terminate hereunder and of record, and all rights to the Collateral shall revert to the Pledgor. Upon any
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such termination the Collateral Agent shall promptly, at the Pledgors expense, transfer and/or deliver to, or as directed by, the Pledgor, any monies or other assets then remaining in any
of the Pledged Accounts, and execute and deliver to the Pledgor or otherwise authorize the filing of such documents as the Pledgor shall reasonably request, including financing statement amendments to evidence such termination.
ARTICLE VIII
MISCELLANEOUS
Section 8.1 Expenses and Right to Perform.
(a) The Pledgors agreements and duties hereunder shall be performed by it at its sole cost and expense.
(b) If the Pledgor shall fail to do any act or thing that it has covenanted to do hereunder, the Collateral Agent may (but shall not be
obligated to) do the same or cause it to be done, either in its name or in the name and on behalf of the Pledgor, and the Pledgor hereby irrevocably authorizes the Collateral Agent to act in such case.
Section 8.2 Expenses; Indemnification. The Pledgor shall:
(a) pay or reimburse the Collateral Agent for any documented transfer, documentary, stamp and similar taxes, and all recording and filing fees
and taxes, payable in connection with, arising out of, or in any way related to, the execution, delivery and performance of the Collateral Documents;
(b) pay or reimburse the Collateral Agent for all costs and expenses (including reasonable and documented fees and disbursements of legal
counsel, appraisers, accountants and other experts employed or retained by the Collateral Agent) incurred by the Collateral Agent in connection with, arising out of, or in any way related to, (i) the negotiation, preparation, execution and
delivery of any waiver, amendment or consent under the Collateral Documents, whether or not executed, (ii) the administration of all and any operations thereunder or thereto, (iii) consulting with respect to any matter in any way arising
out of, related to, or connected with, the Collateral Documents, including (A) the protection or preservation of the Collateral, (B) the protection, preservation, exercise or enforcement of any of its rights in, under or related to the
Collateral or the Collateral Documents or (C) the performance of any of its obligations under or related to the Collateral Documents, (iv) protecting or preserving the Collateral or (v) protecting, preserving, exercising or enforcing
any of its rights in, under or related to the Collateral or the Collateral Documents, including defending the Security Interest as a valid, perfected, first priority security interest in the Collateral (including all costs, charges and expenses
incurred by it in relation to any such applications or proceedings referred to in Section 5.02); and
(c) indemnify and hold each
Indemnified Person harmless from and against all actual losses (including judgments, penalties and fines) suffered, and pay or reimburse each Indemnified Person for all reasonable and documented costs and expenses (including reasonable and
documented fees and disbursements of legal counsel and other experts employed or retained by such Indemnified Person) incurred, by such Indemnified Person in connection with, arising
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out of, or in any way related to (i) any Collateral Document Related Claim (whether asserted by such Indemnified Person or the Pledgor or any other Person), including the prosecution or
defense thereof and any litigation or proceeding with respect thereto (whether or not, in the case of any such litigation or proceeding, such Indemnified Person is a party thereto), or (ii) any investigation, governmental or otherwise, arising
out of, related to, or in any way connected with, the Collateral Documents or the relationships established thereunder, except that the foregoing indemnity shall not be applicable to any loss suffered by any Indemnified Person to the extent such
loss is finally determined by a court of competent jurisdiction to be the result of acts or omissions on the part of such Indemnified Person constituting (x) willful misconduct, (y) knowing violations of law or (z) in the case of
claims by the Pledgor against such Indemnified Person, such Indemnified Persons failure to observe any other standard applicable to it under any of the other provisions of the Collateral Documents.
Section 8.3 No Waivers of Rights Hereunder; Rights Cumulative.
(a) No course of dealing or performance by the Collateral Agent, including any delay or forbearance by it in exercising any right hereunder or
under any of the other Obligations (such as, for example, the Collateral Agents forbearance in exercising dominion and control over any of the Collateral), shall operate as a waiver by it of such right or the amendment, release or novation of
any provision hereof, nor shall any single or partial exercise of any right preclude other or further exercises thereof or the exercise of any other right. No waiver or amendment of any provision of this Pledge Agreement or of any of the other
Obligations shall be enforceable against the Collateral Agent unless in writing and signed by an officer of the Collateral Agent and unless it expressly refers to the provision affected, and such waiver shall be limited solely to the specific event
waived.
(b) All rights granted the Collateral Agent hereunder shall be cumulative and shall be supplementary of and in addition to those
otherwise granted or available to the Collateral Agent with respect to the Obligations or under Applicable Law, and nothing herein shall be construed as limiting any such other right.
Section 8.4 Governing Law.
(a) This Pledge Agreement shall be construed and enforced in accordance with, and the rights of the parties shall be governed by, the law of
the State of New York, excluding choice-of-law principles of the law of the State of New York that would permit the application of the laws of a jurisdiction other than the State of New York.
(b) The Pledgor irrevocably submits to the non-exclusive jurisdiction of any New York State or U.S. federal court sitting in the Borough of
Manhattan, The City of New York, over any suit, action or proceeding arising out of or relating to this Pledge Agreement or the other Operative Documents. To the fullest extent permitted by Applicable Law, the Pledgor irrevocably waives and agrees
not to assert, by way of motion, as a defense or otherwise, any claim that it is not subject to the jurisdiction of any such court, any objection that it may now or hereafter have to the laying of the venue of any such suit, action or proceeding
brought in any such court and any claim that any such suit, action or proceeding brought in any such court has been brought in an inconvenient forum.
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(c) The Pledgor consents to process being served by or on behalf of any Noteholder in any suit,
action or proceeding of the nature referred to in Section 8.04 (b) by mailing a copy thereof to it at its address as specified in Section 17.4 of the Note Purchase Agreement. The Pledgor agrees that such service upon receipt
(i) shall be deemed in every respect effective service of process upon it in any such suit, action or proceeding and (ii) shall, to the fullest extent permitted by Applicable Law, be taken and held to be valid personal service upon and
personal delivery to it. Notices hereunder shall be conclusively presumed received as evidenced by a delivery receipt furnished by the United States Postal Service or any reputable commercial delivery service.
(d) Nothing in this Section 8.04 shall affect the right of any Noteholder to serve process in any manner permitted by Applicable Law or
limit any right that any Noteholder may have to bring proceedings against the Pledgor in the courts of any appropriate jurisdiction or to enforce in any lawful manner a judgment obtained in one jurisdiction in any other jurisdiction.
(e) The parties hereto hereby waive trial by jury in any action brought on or with respect to this Agreement, the Notes or any other Operative
Document executed in connection herewith or therewith.
Section 8.5 LIMITATION OF LIABILITY. NEITHER THE COLLATERAL AGENT NOR
ANY OTHER INDEMNIFIED PERSON SHALL HAVE ANY LIABILITY WITH RESPECT TO, AND THE PLEDGOR HEREBY WAIVES, RELEASES AND AGREES NOT TO SUE FOR:
(a) ANY LOSS OR DAMAGE SUSTAINED BY THE PLEDGOR, OR ANY LOSS, DAMAGE, DEPRECIATION OR OTHER DIMINUTION IN THE VALUE OF ANY COLLATERAL, THAT
MAY OCCUR AS A RESULT OF, IN CONNECTION WITH, OR THAT IS IN ANY WAY RELATED TO, ANY EXERCISE OR NON-EXERCISE OF ANY RIGHT OR REMEDY HEREUNDER, EXCEPT FOR ANY SUCH LOSS, DAMAGE, DEPRECIATION OR DIMINUTION TO THE EXTENT THAT THE SAME IS FINALLY
DETERMINED BY A COURT OF COMPETENT JURISDICTION TO BE THE RESULT OF ACTS OR OMISSIONS ON THE PART OF THE COLLATERAL AGENT OR SUCH OTHER INDEMNIFIED PERSON CONSTITUTING (i) GROSS NEGLIGENCE, (ii) WILLFUL MISCONDUCT, (iii) KNOWING
VIOLATIONS OF LAW OR (iv) SUCH PERSONS FAILURE TO OBSERVE ANY OTHER STANDARD APPLICABLE TO IT UNDER ANY OF THE OTHER PROVISIONS OF THE COLLATERAL DOCUMENTS OR, BUT ONLY TO THE EXTENT NOT WAIVABLE THEREUNDER, APPLICABLE LAW; OR
(b) ANY SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES AND, TO THE EXTENT PERMITTED UNDER APPLICABLE LAW, PUNITIVE DAMAGES SUFFERED BY THE PLEDGOR
IN CONNECTION WITH ANY COLLATERAL DOCUMENT RELATED CLAIM.
THE PLEDGOR AGREES THAT THE COLLATERAL AGENT, ACTING IN ITS CAPACITY AS
COLLATERAL AGENT HEREUNDER, SHALL BE AFFORDED ALL OF THE RIGHTS, PROTECTIONS, IMMUNITIES AND INDEMNITIES GIVEN TO IT UNDER THE NOTE PURCHASE AGREEMENT.
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Section 8.6 Severability of Provisions. Any provision of this Pledge Agreement that
is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof in that jurisdiction or affecting the
validity or enforceability of such provision in any other jurisdiction. To the extent permitted by Applicable Law, the Pledgor hereby waives any provision of Applicable Law that renders any provision of this Pledge Agreement prohibited or
unenforceable in any respect.
Section 8.7 Counterparts. This Pledge Agreement may be signed in any number of counterparts,
each of which shall be an original, with the same effect as if the signatures thereto were upon the same instrument.
Section 8.8
Survival of Obligations. Except as otherwise expressly provided herein, the rights and obligations of the Pledgor, the Collateral Agent and the other Indemnified Persons under Section 8.02 and Section 8.05 of this Pledge Agreement
shall survive the termination of the Security Interest.
Section 8.9 Survival of Representations and Warranties. All
representations and warranties contained herein shall survive the execution and delivery of this Pledge Agreement and the Notes, the purchase or transfer by any Purchaser of any Note or portion thereof and the payment of any Note, and may be relied
upon by any subsequent Noteholder, regardless of any investigation made at any time by or on behalf of such Purchaser or any other Noteholder. All statements contained in any certificate or other instrument delivered by or on behalf of the Pledgor
pursuant to this Pledge Agreement shall be deemed representations and warranties of the Pledgor under this Pledge Agreement.
Section 8.10 Successors and Assigns. All of the provisions of this Pledge Agreement shall be binding upon and inure to the benefit
of the parties hereto and their respective successors and assigns.
Section 8.11 Notices. All notices and other communications
hereunder shall be given pursuant to Section 16.4 of the Note Purchase Agreement.
{Signature Page Follows}
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PLEDGOR |
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ANTIGENICS LLC |
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COLLATERAL AGENT |
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OBERLAND CAPITAL SA ZERMATT LLC |
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Portions of this Exhibit were omitted and have been filed separately with the Secretary of the Commission pursuant to the Companys application requesting confidential treatment under Rule 24b-2 of the Exchange Act;
[
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Exhibit D
to Note Purchase Agreement
VIA
EMAIL & FEDERAL EXPRESS
September , 2015
GlaxoSmithKline Biologicals SA
Attention: President and General
Manager
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RE: |
Note Purchase Agreement dated September , 2015 (the Note Purchase Agreement), by and among Antigenics LLC, Oberland Capital SA Zermatt LLC as collateral agent, the
guarantors named therein and the purchasers named therein. |
Dear President and General Manager,
You are hereby informed that by means of a statutory conversion, Antigenics LLC, a Delaware corporation, is the successor in interest to Antigenics Inc., a
Massachusetts corporation (such successor, Antigenics). In accordance with Section 8.5 of the Note Purchase Agreement, and as permitted under (i) Section 4.2 of the License Agreement, made effective
July 6, 2006, between Antigenics and GlaxoSmithKline Biologicals SA, a Belgian company (GSK), (the License Agreement) and (ii) Section 6.2 of the Amended and Restated Manufacturing
Technology Transfer and Supply Agreement, effective as of January 16, 2009, by and between Antigenics and GSK, (the Manufacturing Agreement), each as amended by the First Right to Negotiate and Amendment Agreement,
effective as of March 2, 2012, by and between Antigenics, Agenus Inc. and GSK (with the License Agreement and the Manufacturing Agreement, the GSK/Antigenics Agreements), Antigenics hereby requests that all payments
under the GSK/Antigenics Agreements be deposited by wire transfer in accordance with the following account and wire transfer information:
Federal Funds Wire Transfer Instructions:
The Bank of New York Mellon
ABA
#
Beneficiary:
Cust A/C #
Acct Name:
ATTN:
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Regards, |
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Karen H. Valentine |
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Karen H. Valentine |
Secretary, Antigenics LLC |
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Chief Legal Officer & General Counsel, Agenus Inc. |
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Portions of this Exhibit were omitted and have been filed separately with the Secretary of the Commission pursuant to the Companys application requesting confidential treatment under Rule 24b-2 of the Exchange Act;
[
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Exhibit E
to Note Purchase Agreement
FORM OF GUARANTEE ASSUMPTION AGREEMENT
GUARANTEE ASSUMPTION AGREEMENT (this Guarantee Assumption Agreement) dated as of [DATE] by [NAME OF ADDITIONAL SUBSIDIARY
GUARANTOR], a [corporation][limited liability company] (the Additional Subsidiary Guarantor), in favor of Oberland Capital SA Zermatt LLC, as collateral
agent (the Collateral Agent) for the Noteholders (as defined under that certain Note Purchase Agreement, dated as of September , 2015 (as amended, restated, supplemented or otherwise modified, renewed,
refinanced or replaced, the Note Purchase Agreement), among Antigenics LLC, a Delaware limited liability company (Issuer), the Guarantors party thereto and the Purchasers party thereto. Capitalized terms used
herein and not otherwise defied have the meanings given to such terms in Annex A to the Note Purchase Agreement.
Pursuant to
Section 9.20 of the Note Purchase Agreement, the Additional Subsidiary Guarantor hereby agrees to become a Subsidiary Guarantor for all purposes of the Note Purchase Agreement. Without limiting the foregoing, the Additional
Subsidiary Guarantor hereby, jointly and severally with the other Guarantors, guarantees to the Collateral Agent and the Noteholders and their successors and assigns the prompt payment in full when due (whether at stated maturity, by acceleration or
otherwise) of all Guaranteed Obligations (as defined in Section 19.1 of the Note Purchase Agreement) in the same manner and to the same extent as is provided in Article XIX of the Note Purchase Agreement. In addition, as of the date hereof, the
Additional Subsidiary Guarantor hereby makes the representations and warranties set forth in Sections 5.2, 5.3, 5.5, 5.6, 5.10, 5.12, 5.14 and 5.34 of the Note Purchase Agreement, with respect to itself and its obligations under this Guarantee
Assumption Agreement and the other Operative Documents, as if each reference in such Sections to the Note Purchase Documents included reference to this Guarantee Assumption Agreement, such representations and warranties to be made as of the date
hereof.
The Additional Subsidiary Guarantor hereby instructs its counsel to deliver the opinions referred to in Section 9.18 of the
Note Purchase Agreement to the Collateral Agent.
IN WITNESS WHEREOF, the Additional Subsidiary Guarantor has caused this Guarantee
Assumption Agreement to be duly executed and delivered as of the day and year first above written.
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[ADDITIONAL SUBSIDIARY GUARANTOR] |
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Portions of this Exhibit were omitted and have been filed separately with the Secretary of the Commission pursuant to the Companys application requesting confidential treatment under Rule 24b-2 of the Exchange Act;
[
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EXHIBIT F-1
FORM OF
U.S. TAX COMPLIANCE
CERTIFICATE
Reference is hereby made to the Note Purchase Agreement dated as of September [●], 2015 (as amended, supplemented or
otherwise modified from time to time, the Note Purchase Agreement), among Antigenics LLC, Oberland Capital SA Zermatt LLC, and each purchaser and guarantor from time to time party thereto.
Pursuant to the provisions of Section 15.2 of the Note Purchase Agreement, the undersigned hereby certifies that (i) it is the sole
record and beneficial owner of the Note(s) in respect of which it is providing this certificate, (ii) it is not a bank within the meaning of Section 881(c)(3)(A) of the Code, (iii) it is not a ten percent shareholder of the Issuer
within the meaning of Section 871(h)(3)(B) of the Code and (iv) it is not a controlled foreign corporation related to the Issuer as described in Section 881(c)(3)(C) of the Code.
The undersigned has furnished the Collateral Agent and the Issuer with a certificate of its non-U.S. Person status on IRS Form W-8BEN or
IRS W-8BEN-E. By executing this certificate, the undersigned agrees that (1) if the information provided on this certificate changes, the undersigned shall promptly so inform the Issuer and the Collateral Agent, and (2) the undersigned
shall have at all times furnished the Issuer and the Collateral Agent with a properly completed and currently effective certificate in either the calendar year in which each payment is to be made to the undersigned, or in either of the two calendar
years preceding such payments.
Unless otherwise defined herein, terms defined in the Note Purchase Agreement and used herein shall have
the meanings given to them in the Note Purchase Agreement.
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Portions of this Exhibit were omitted and have been filed separately with the Secretary of the Commission pursuant to the Companys application requesting confidential treatment under Rule 24b-2 of the Exchange Act;
[
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] denotes omissions. |
EXHIBIT F-2
FORM OF
U.S. TAX COMPLIANCE
CERTIFICATE
Reference is hereby made to the Note Purchase Agreement dated as of September [●], 2015 (as amended, supplemented or
otherwise modified from time to time, the Note Purchase Agreement), among Antigenics LLC, Oberland Capital SA Zermatt LLC, and each purchaser and guarantor from time to time party thereto.
Pursuant to the provisions of Section 15.2 of the Note Purchase Agreement, the undersigned hereby certifies that (i) it is the sole
record owner of the Note(s) in respect of which it is providing this certificate, (ii) its direct or indirect partners/members are the sole beneficial owners of such Note(s), (iii) with respect to any Operative Document, neither the
undersigned nor any of its direct or indirect partners/members is a bank extending credit pursuant to a loan agreement entered into in the ordinary course of its trade or business within the meaning of Section 881(c)(3)(A) of the Code,
(iv) none of its direct or indirect partners/members is a ten percent shareholder of the Issuer within the meaning of Section 871(h)(3)(B) of the Code and (v) none of its direct or indirect partners/members is a controlled foreign
corporation related to the Issuer as described in Section 881(c)(3)(C) of the Code.
The undersigned has furnished the Collateral
Agent and the Issuer with IRS Form W-8IMY accompanied by one of the following forms from each of its partners/members that is claiming the portfolio interest exemption: (i) an IRS Form W-8BEN or
W-8BEN-E or (ii) an IRS Form W-8IMY accompanied by an IRS Form W-8BEN or W-8BEN-E from each of such partners/members beneficial owners that is claiming the portfolio interest exemption. By
executing this certificate, the undersigned agrees that (1) if the information provided on this certificate changes, the undersigned shall promptly so inform the Issuer and the Collateral Agent, and (2) the undersigned shall have at all
times furnished the Issuer and the Collateral Agent with a properly completed and currently effective certificate in either the calendar year in which each payment is to be made to the undersigned, or in either of the two calendar years preceding
such payments.
Unless otherwise defined herein, terms defined in the Note Purchase Agreement and used herein shall have the meanings
given to them in the Note Purchase Agreement.
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Portions of this Exhibit were omitted and have been filed separately with the Secretary of the Commission pursuant to the Companys application requesting confidential treatment under Rule 24b-2 of the Exchange Act;
[
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Portions of this Exhibit were omitted and have been filed separately with the Secretary of the Commission pursuant to the Companys application requesting confidential treatment under Rule 24b-2 of the Exchange Act;
[
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Exhibit 4.2
ANTIGENICS LLC
LIMITED
RECOURSE NOTE
No. { }
CUSIP: 03703L AB3
Initial Principal
Amount: U.S. $ { }
ANTIGENICS LLC, a Delaware limited liability company (herein referred
to as the Issuer), for value received, hereby promises to pay to { }, the amounts set forth below in this Note
at the times set forth below in this Note.
This Note is one of a series of Limited Recourse Notes issued pursuant to the Note Purchase
Agreement dated September , 2015 (as from time to time amended, the Note Purchase Agreement) among the Issuer, the Parent, Oberland Capital SA Zermatt LLC, as the collateral agent, the guarantors from time
to time party thereto and the Purchasers named therein and is entitled to the benefits thereof and subject to the obligations thereof. Each holder of this Note, including any transferee, will be deemed, by its acceptance hereof, to have made the
representations set forth in Article IV of the Note Purchase Agreement and accepted all obligations with respect to this Note under the Note Purchase Agreement. Unless otherwise indicated, capitalized terms used in this Note shall have the
respective meanings ascribed to such terms in the Note Purchase Agreement. Without limitation, the exercise of remedies relating to this Note and the Note Purchase Agreement shall be subject to the provisions and limitations of the Note Purchase
Agreement and the other Operative Documents.
The Issuer shall cause all Counterparty Payments to be deposited into the Collateral Account
pursuant to the terms of the Note Purchase Agreement.
The Issuer hereby authorizes and directs the Collateral Agent, on each Payment
Date, to cause to be paid from the Collection Account, to the record holder of this Note as of the close of business on the Relevant Calculated Date for such Payment Date, the Note Payments in accordance with the terms of the Note Purchase
Agreement.
Payments on this Note are to be made in lawful money of the United States of America at the principal office of the Issuer or
at such other place as the Issuer shall have designated by written notice to the holder of this Note or as otherwise provided in the Note Purchase Agreement.
This Note is a registered Note and, as provided in the Note Purchase Agreement, upon surrender of this Note for registration of transfer
accompanied by a written instrument of transfer duly executed in the form attached to this Note (and accompanied by the relevant name, address and other information for notices of each transferee of this Note or part thereof, and accompanied by any
other evidence of satisfaction with the restrictions and requirements applicable to transfers of this Note set forth in the Note Purchase Agreement and the legend set forth on the
face of this Note as reasonably requested by the Issuer), by the registered holder hereof or such holders attorney duly authorized in writing, a new Note for a like face amount will be
issued to, and registered in the name of, the transferee. Prior to due presentment for registration of transfer, the Issuer shall be entitled to deem and treat the Person in whose name this Note is registered as the owner hereof for the purpose of
receiving payment and for all other purposes, and the Issuer will not be affected by any notice to the contrary.
Prior to any sale or
other disposition of this Note, the holder of this Note will surrender this Note to the Issuer in exchange for a new Note or Notes pursuant to Section 12.2 of the Note Purchase Agreement.
If a Specified Event of Default occurs and is continuing, this Note may be declared or otherwise become due and payable in the manner, in the
amount and with the effect provided in the Note Purchase Agreement.
This Note is issued in definitive form pursuant to the Note Purchase
Agreement in denominations of at least $250,000 face amount. This Note is and will be secured by the Collateral pledged as security therefor as provided in the Note Purchase Agreement and the Pledge Agreement.
Anything in the Note Purchase Agreement or this Note to the contrary notwithstanding, any Noteholder Payment on this Note that is due on a
date other than a Business Day shall be made on the next succeeding Business Day.
This Note shall be construed and enforced in accordance
with, and the rights of the Issuer and the holder of this Note shall be governed by, the law of the State of New York, excluding choice-of-law principles of the law of the State of New York that would permit the application of the laws of a
jurisdiction other than the State of New York.
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ANTIGENICS LLC |
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By: |
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Name: |
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Title: |
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Exhibit 4.3
Execution Version
REVENUE INTEREST ASSIGNMENT AND TERMINATION AGREEMENT
dated as of September 4, 2015
between
INGALLS & SNYDER VALUE PARTNERS, L.P.
ARTHUR KOENIG
AGENUS
INC.
and
ANTIGENICS LLC
Table of Contents
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Page |
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ARTICLE I |
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PURCHASE AND SALE OF THE ASSIGNED INTERESTS |
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Section 1.1 |
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Purchase and Sale |
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1 |
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Section 1.2 |
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Purchase Price |
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2 |
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Section 1.3 |
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No Assumed Obligations |
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2 |
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Section 1.4 |
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Assumed Liabilities |
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2 |
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Section 1.5 |
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Excluded Assets |
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2 |
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Section 1.6 |
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Termination of Ingalls Agreement |
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2 |
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ARTICLE II |
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REPRESENTATIONS AND WARRANTIES OF THE SELLERS |
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Section 2.1 |
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Organization |
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3 |
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Section 2.2 |
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No Conflicts |
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3 |
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Section 2.3 |
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Authorization |
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4 |
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Section 2.4 |
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Ownership |
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4 |
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Section 2.5 |
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Governmental and Third Party Authorizations |
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4 |
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Section 2.6 |
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No Litigation |
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4 |
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Section 2.7 |
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Solvency |
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5 |
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Section 2.8 |
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No Brokers Fees |
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5 |
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Section 2.9 |
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Compliance with Laws |
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5 |
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Section 2.10 |
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Access to Information; Investment Intent |
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5 |
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Section 2.11 |
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No Other Representations and Warranties |
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6 |
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ARTICLE III |
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REPRESENTATIONS AND WARRANTIES OF THE PURCHASERS |
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Section 3.1 |
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Organization |
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6 |
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Section 3.2 |
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No Conflicts |
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6 |
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Section 3.3 |
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Authorization |
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7 |
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Section 3.4 |
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Governmental and Third Party Authorizations |
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7 |
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Section 3.5 |
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No Litigation |
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7 |
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Section 3.6 |
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Access to Information |
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7 |
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Section 3.7 |
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Solvency |
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8 |
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Section 3.8 |
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No Brokers Fees |
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8 |
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Section 3.9 |
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Closing Consideration Shares |
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8 |
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Section 3.10 |
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No Other Representations and Warranties |
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8 |
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ARTICLE IV |
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COVENANTS |
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Section 4.1 |
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Public Announcement |
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9 |
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Section 4.2 |
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Further Assurances |
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9 |
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Section 4.3 |
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[Reserved] |
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10 |
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Section 4.4 |
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Registration Statements |
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10 |
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Section 4.5 |
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Covenants of Agenus Regarding the Closing Consideration Shares |
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10 |
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Page |
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ARTICLE V |
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THE CLOSING |
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Section 5.1 |
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Closing |
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12 |
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Section 5.2 |
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Conditions of Purchasers Obligations at the Closing |
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12 |
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Section 5.3 |
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Conditions of the Sellers Obligations at the Closing |
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13 |
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ARTICLE VI |
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INDEMNIFICATION |
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Section 6.1 |
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Indemnification by the Sellers |
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13 |
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Section 6.2 |
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Indemnification by the Purchasers |
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14 |
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Section 6.3 |
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Procedures for Third Party Claims |
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14 |
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Section 6.4 |
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Other Claims |
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15 |
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Section 6.5 |
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Exclusive Remedy |
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15 |
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Section 6.6 |
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Limitations |
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15 |
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Section 6.7 |
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Subrogation |
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16 |
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ARTICLE VII |
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TERMINATION |
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Section 7.1 |
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Termination of Agreement |
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16 |
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ARTICLE VIII |
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MISCELLANEOUS |
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Section 8.1 |
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Defined Terms |
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16 |
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Section 8.2 |
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Rules of Construction |
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19 |
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Section 8.3 |
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Survival |
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20 |
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Section 8.4 |
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Specific Performance |
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21 |
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Section 8.5 |
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Notices |
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21 |
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Section 8.6 |
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Expenses |
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22 |
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Section 8.7 |
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Successors and Assigns |
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22 |
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Section 8.8 |
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Independent Nature of Relationship |
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23 |
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Section 8.9 |
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Entire Agreement |
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23 |
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Section 8.10 |
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Governing Law |
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23 |
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Section 8.11 |
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Jurisdiction; Venue; Waiver of Jury Trial |
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23 |
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Section 8.12 |
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Severability |
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24 |
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Section 8.13 |
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Counterparts |
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24 |
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Section 8.14 |
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Amendments; No Waivers |
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24 |
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Section 8.15 |
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No Third Party Rights |
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25 |
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Section 8.16 |
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Table of Contents and Headings |
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25 |
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-ii-
Exhibits
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Exhibit A |
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Oberland Agreement |
Exhibit B |
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Form of Bill of Sale |
Exhibit C |
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Seller Account |
Exhibit D |
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Allocation of Closing Consideration Shares |
-iii-
REVENUE INTEREST ASSIGNMENT AND TERMINATION AGREEMENT
This REVENUE INTEREST ASSIGNMENT AND TERMINATION AGREEMENT (this Agreement), dated as of September 4, 2015, is among
Ingalls & Snyder Value Partners, L.P. (Ingalls), Arthur Koenig (Koenig, and together with Ingalls, the Sellers and each a Seller), Agenus Inc., a Delaware
corporation (Agenus), and Antigenics LLC, a Delaware limited liability company (as the successor in interest to Antigenics Inc., formerly a Massachusetts corporation) (AgenMA, and together with Agenus, the
Purchasers and each a Purchaser). Capitalized terms used but not defined in this Agreement are defined in Section 8.
W I T N E S S E T H :
WHEREAS, the Purchasers and the Sellers entered into a Revenue Interest Assignment Agreement on April 15, 2013 (the Ingalls
Agreement), pursuant to which the Purchasers sold, contributed, assigned, transferred, conveyed and granted to the Sellers, and the Sellers purchased from the Purchasers, the Assigned Interests;
WHEREAS, the Purchasers propose to enter into a Note Purchase Agreement with Oberland Capital SA Zermatt LLC (Oberland), in
substantially the form attached hereto as Exhibit A (the Oberland Agreement), pursuant to which AgenMA proposes to issue and sell to the purchasers named therein up to $115,000,000 in aggregate principal amount of its
limited recourse notes; and
WHEREAS, the Sellers desire to irrevocably sell, contribute, assign, transfer, convey and grant to AgenMA,
and AgenMA desire to purchase, acquire and accept from the Sellers, the Assigned Interests described herein and then terminate the Ingalls Agreement, all upon and subject to the terms and conditions set forth in this Agreement.
NOW, THEREFORE, in consideration of the premises and the mutual agreements, representations and warranties set forth herein and of other good
and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the Parties covenant and agree as follows:
ARTICLE
I
PURCHASE AND SALE OF THE ASSIGNED INTERESTS
Section 1.1 Purchase and Sale.
(a) Subject to the terms and conditions of this Agreement, on the Closing Date, each Seller hereby irrevocably sells, contributes, assigns,
transfers, conveys and grants to AgenMA, and AgenMA hereby purchases, acquires and accepts from each Seller, all of such Sellers right, title and interest in and to the Assigned Interests, free and clear of any and all Liens (other than Liens
arising under applicable securities laws or the GSK Agreements or the GSK ROFN and Amendment Agreement).
(b) The Sellers and the
Purchasers intend and agree that the sale, contribution, assignment, transfer, conveyance and granting of the Assigned Interests under this Agreement shall be, and are, a true, complete, absolute and irrevocable assignment and sale by the Sellers to
AgenMA of the Assigned Interests and that such assignment and sale shall provide the Purchasers with the full benefits of ownership of the Assigned Interests. The Parties expressly agree that
following the Closing, none of the Sellers shall have any right, title or interest in or to the Assigned Interests. Neither the Sellers nor the Purchasers intend the transactions contemplated hereby to be, or for any purpose characterized as, a loan
from the Purchasers to the Sellers or a pledge or assignment or a security agreement. The Sellers waive any right to contest or otherwise assert that this Agreement does not constitute a true, complete, absolute and irrevocable sale and assignment
by the Sellers to AgenMA of the Assigned Interests under Applicable Law, which waiver shall be enforceable against the Sellers in any Bankruptcy Event in respect of the Sellers. The sale, contribution, assignment, transfer, conveyance and granting
of the Assigned Interests shall be reflected as a sale of assets to AgenMA (except to the extent GAAP or the rules of the SEC require otherwise with respect to either Sellers financial statements).
Section 1.2 Purchase Price. In full consideration for the sale, contribution, assignment, transfer, conveyance and granting of the
Assigned Interests and the termination of the Ingalls Agreement, and subject to the terms and conditions set forth herein, AgenMA shall pay (or cause to be paid) to the Sellers, or the Sellers designee, at the Closing, the sum of
(a) TWENTY MILLION DOLLARS ($20,000,000), in immediately available funds by wire transfer to the Seller Account (the Closing Cash Consideration) and (b) 300,000 shares of Agenus common stock, par value $0.01 per
share (the Closing Consideration Shares, and together with the Closing Cash Consideration, the Purchase Price), to be allocated among the Sellers as set forth on Exhibit D.
Section 1.3 No Assumed Obligations. Notwithstanding any provision in this Agreement or any other writing to the contrary, AgenMA
is purchasing, acquiring and accepting only the Assigned Interests and is not assuming any liability or obligation of the Sellers or any of the Sellers Affiliates of whatever nature, whether presently in existence or arising or asserted
hereafter. All such liabilities and obligations shall be retained by, and remain liabilities and obligations of, the Sellers or the Sellers Affiliates, as the case may be (the Excluded Liabilities and Obligations) other than
the Assumed Liabilities, if any.
Section 1.4 Assumed Liabilities. As of the Closing, Purchasers hereby assume, and agree to
pay, perform and discharge when due, any and all of the Assumed Liabilities, if any.
Section 1.5 Excluded Assets. The
Purchasers do not, by purchase, acquisition or acceptance of the right, title or interest granted hereunder or otherwise pursuant to any of the Transaction Documents, purchase, acquire or accept any assets or contract rights of the Sellers under any
of Sellers agreement, other than the Assigned Interests, or any other assets of the Sellers.
Section 1.6 Termination of
Ingalls Agreement. Concurrently with the Closing, the Sellers and the Purchasers acknowledge and agree that the Ingalls Agreement shall terminate in its entirety and be of no further force and effect; provided, however, that
Section 5.1 (Confidentiality), Section 7.3 (Survival) and, except as superseded by Article VIII of this Agreement, Article VIII (Miscellaneous) of the Ingalls Agreement shall survive the termination. Termination of the Ingalls
Agreement shall not relieve any party thereto of liability in respect of breaches under the Ingalls Agreement by any party thereto on or prior to termination.
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ARTICLE II
REPRESENTATIONS AND WARRANTIES OF THE SELLERS
Each Seller hereby, severally and not jointly, represents and warrants to the Purchasers, as of the date hereof, as to such Seller and not to
the other Seller, as follows:
Section 2.1 Organization. In the case of Ingalls, such Seller is a limited partnership duly
organized and validly existing in good standing under the laws of the State of New York. In the case of Ingalls, such Seller has full limited partnership power and authority to own, operate and occupy its properties and to conduct its business as
presently conducted and is registered or qualified to do business and is in good standing in each jurisdiction in which it owns or leases property or transacts business, except where the failure to be so registered or qualified individually or in
the aggregate, has not had and is not reasonably likely to have a material adverse effect on the ability of Ingalls to execute and deliver this Agreement and the other Transaction Document to which it is a party and to perform its obligations
hereunder and thereunder. Such Seller has all material licenses, authorizations, consents and approvals from Governmental Authority required to execute and deliver, and perform its or his obligations under this Agreement and the other Transaction
Document to which it or he is a party.
Section 2.2 No Conflicts.
(a) None of the execution and delivery by such Seller of any of the Transaction Documents, the performance by such Seller of its or his
obligations hereunder or thereunder or the consummation by such Seller of the transactions contemplated hereby or thereby will (i) contravene, conflict with or violate any term or provision of any of the organizational documents of such Seller,
if applicable, (ii) contravene, conflict with or violate, or give any Governmental Authority or other Person the right to exercise any remedy or obtain any relief under, any Applicable Law or any judgment, order, writ, decree, permit or license
of any Governmental Authority to which such Seller or any of its or his assets or properties may be subject or bound, (iii) result in a breach or violation of, constitute a default (with or without notice or lapse of time, or both) under, or
give any Person the right to exercise any remedy or obtain any additional rights under, or accelerate the maturity or performance of, or payment under, or cancel or terminate, any contract, agreement, indenture, lease, license, deed, commitment,
obligation or instrument to which such Seller is a party or by which such Seller or any of its or his respective assets or properties is bound or committed, or (iv) result in or require the creation or imposition of any Lien on the Assigned
Interests; provided, however, that, in the case of clause (ii) and clause (iii) of this Section 2.2(a), such breach, violation, default or right would not prevent, or materially impede, interfere with, hinder or
delay the ability of such Seller to sell, contribute assign, transfer, convey and grant the Assigned Interests or the ability of AgenMA to acquire good and marketable title to the Assigned Interests free and clear of all Liens (other than Liens
arising under applicable securities laws or the GSK Agreements or the GSK ROFN and Amendment Agreement).
(b) No Lien (other than Liens
arising under applicable securities laws or the GSK Agreements or the GSK ROFN and Amendment Agreement) currently exists on any of such Sellers Assigned Interests.
-3-
Section 2.3 Authorization. Such Seller has all necessary corporate or other power and
authority to execute and deliver the Transaction Documents, to perform its or his obligations hereunder and thereunder and to consummate the transactions contemplated hereby and thereby. The execution and delivery of each of the Transaction
Documents and the performance by such Seller of its or his obligations hereunder and thereunder have been duly authorized by such Seller and, in the case of Koenig, he has all necessary capacity required therefor. Each of the Transaction Documents
has been duly executed and delivered by such Seller. Each of the Transaction Documents, assuming the valid execution and delivery by the Purchasers, constitutes the legal, valid and binding obligation of such Seller, enforceable against such Seller,
as applicable, in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors rights generally, general equitable principles and principles of public policy.
Section 2.4 Ownership. Such Seller is the exclusive owner of the entire right, title (legal and equitable) and interest in, to and
under the Assigned Interests of such Seller. Assuming the accuracy of the representations and warranties of Purchasers under the Ingalls Agreement, (i) such Seller is the exclusive owner of the entire right, title (legal and equitable) and
interest in, to and under the Assigned Interests of such Seller, and (ii) together the Sellers are the exclusive joint owners of the entirety of the Assigned Interests. Following the closing of the transactions contemplated by the Ingalls
Agreement neither Seller has contributed, assigned, transferred or conveyed any portion of its originally acquired portion of the Assigned Interests to any Third Party. Such Sellers Assigned Interests sold, contributed, assigned, transferred,
conveyed and granted to AgenMA at the Closing will not have been pledged, sold, contributed, assigned, transferred, conveyed or granted by such Seller to any other Person. Such Seller has full right to sell, contribute, assign, transfer, convey and
grant the Assigned Interests to AgenMA. Upon the sale, contribution, assignment, transfer, conveyance and granting by such Seller of such Sellers Assigned Interests to AgenMA, AgenMA shall acquire good and marketable title to the Assigned
Interests free and clear of all Liens (other than Liens arising under applicable securities laws or the GSK Agreements or the GSK ROFN and Amendment Agreement) and shall be the exclusive owners of the entirety of the Assigned Interests
Section 2.5 Governmental and Third Party Authorizations. The execution and delivery by each of such Seller of the Transaction
Documents, the performance by such Seller of its or his obligations hereunder and thereunder and the consummation by such Seller of the transactions contemplated hereby and thereby do not require any consent, approval, license, order, authorization
or declaration from, notice to, action or registration by, or filing with, any Governmental Authority or any other Person.
Section 2.6 No Litigation. There is no (a) action, suit, arbitration proceeding, claim, demand, citation, summons, subpoena,
investigation or other proceeding (whether civil, criminal, administrative, regulatory, investigative or informal) pending or, to the knowledge of such Seller, threatened by or against such Seller, at law or in equity, or (b) inquiry or
investigation (whether
-4-
civil, criminal, administrative, regulatory, investigative or informal) by or before a Governmental Authority pending or, to the knowledge of such Seller, threatened against such Seller, that, in
any case challenges or seeks to prevent or delay the consummation of any of the transactions contemplated by any of the Transaction Documents.
Section 2.7 Solvency. Immediately after giving effect to the consummation of the transactions contemplated by the Transaction
Documents and the application of the proceeds therefrom, (a) the fair value of such Sellers assets will be greater than the sum of its or his debts, liabilities and other obligations, including contingent liabilities, (b) the present
fair saleable value of such Sellers assets will be greater than the amount that would be required to pay its or his probable liabilities on its or his existing debts, liabilities and other obligations, including contingent liabilities, as they
become absolute and matured in the normal course of business, (c) such Seller will be able to realize upon its or his assets and pay its or his debts, liabilities and other obligations, including contingent obligations, as they mature,
(d) Ingalls will not have unreasonably small capital with which to engage in its business, as now conducted and as proposed to be conducted following the Closing Date, (e) such Seller will not have become subject to any Bankruptcy Event
and (f) such Seller will not have been rendered insolvent within the meaning of Section 101(32) of Title 11 of the United States Code. For purposes of this Section 2.7, the amount of all contingent obligations at any time shall
be computed as the amount that, in light of all facts and circumstances existing at such time, can be reasonably expected to become an actual or matured liability.
Section 2.8 No Brokers Fees. Such Seller has not taken any action that would entitle any Person to any commission or
brokers fee in connection with the transactions contemplated by this Agreement.
Section 2.9 Compliance with Laws. Such
Seller (a) has not violated or is in violation of, has been given notice of any violation of, or, to the knowledge of such Seller, is under investigation with respect to or has been threatened to be charged with, any violation of, any
Applicable Law or any judgment, order, writ, decree, injunction, stipulation, consent order, permit or license granted, issued or entered by any Governmental Authority or (b) is not subject to any judgment, order, writ, decree, injunction,
stipulation or consent order issued or entered by any Governmental Authority, in each case with respect to the preceding clauses (a) and (b), that would have a material adverse effect on such Seller or such Sellers Assigned Interests.
Section 2.10 Access to Information; Investment Intent.
(a) Such Seller acknowledges that it or he has (a) reviewed the documents and information relating to such Sellers Assigned
Interests and the Oberland Agreement and (b) had the opportunity to ask such questions of, and to receive answers from, representatives of the Purchasers concerning the Assigned Interests, the Oberland Agreement and the Closing Consideration
Shares, in each case as it deemed necessary to make an informed decision to sell, transfer, convey and assign such Sellers Assigned Interests in accordance with the terms of this Agreement. Such Seller has such knowledge, sophistication and
experience in financial and business matters that it or he is capable of evaluating the risks and merits of selling, transferring, conveying and assigning such Sellers Assigned Interests and the risks and merits of acquiring the Closing
Consideration Shares, in all cases in accordance with the terms of this Agreement.
-5-
(b) Such Sellers present intention is to acquire its portion of the Closing Consideration
Shares for its own account for the purpose of investment and not with a view to distribution. Such Seller agrees that it will not sell or transfer any such Closing Consideration Shares without registration under applicable federal and state
securities laws, or the availability of exemptions therefrom. Such Seller agrees that the certificates representing such Closing Consideration Shares (or statement(s) of holdings if such Closing Consideration Shares are issued through the transfer
agents book-entry system) will each bear a restrictive legend stating that the Closing Consideration Shares represented thereby may not be sold except pursuant to registration under the Securities Act or pursuant to an exemption therefrom.
(c) Such Seller is an accredited investor as defined in Rule 501(a) of the rules and regulations promulgated under the
Securities Act.
Section 2.11 No Other Representations and Warranties. Except for the representations and warranties contained
in this Article II, neither such Seller nor any other Person has made or makes any other express or implied representation or warranty, either written or oral, on behalf of such Seller, including any representation or warranty as to the accuracy or
completeness of any information regarding such Sellers Assigned Interests furnished or made available to the Purchasers and their representatives and any information, documents or material made available to the Purchasers, management
presentations or in any other form in expectation of the transactions contemplated hereby) or any representation or warranty arising from statute or otherwise in law.
ARTICLE III
REPRESENTATIONS
AND WARRANTIES OF THE PURCHASERS
The Purchasers hereby, jointly and severally, represent and warrant to the Sellers, as of the date
hereof, as follows:
Section 3.1 Organization. Agenus is a corporation duly incorporated, validly existing and in good
standing under the laws of the State of Delaware and has all corporate power and authority, and all licenses, permits, franchises, authorizations, consents and approvals of all Governmental Authorities, required to own its property and conduct its
business, as now conducted. AgenMA is a limited liability company duly formed, validly existing and in good standing under the laws of the Commonwealth of Massachusetts and has all limited liability company power and authority, and all licenses,
permits, franchises, authorizations, consents and approvals of all Governmental Authorities, required to own its property and conduct its business, as now conducted.
Section 3.2 No Conflicts. None of the execution and delivery by either Purchaser of any of the Transaction Documents to which such
Purchaser is party, the performance by such Purchaser of its obligations hereunder or thereunder or the consummation by such Purchaser of the transactions contemplated hereby or thereby will (a) contravene, conflict with or violate any term or
provision of any of the organizational documents of such Purchaser, (b) contravene,
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conflict with or violate, or give any Governmental Authority or other Person the right to exercise any remedy or obtain any relief under, in any material respect, any Applicable Law or any
judgment, order, writ, decree, permit or license of any Governmental Authority to which such Purchaser or any of its assets or properties may be subject or bound or (c) result in a breach or violation of, constitute a default (with or without
notice or lapse of time, or both) under, or give any Person any right to exercise any remedy, or accelerate the maturity or performance of, in any material respect, any contract, agreement, indenture, lease, license, deed, commitment, obligation or
instrument to which such Purchaser is a party or by which such Purchaser or any of its assets or properties is bound or committed.
Section 3.3 Authorization. Each of the Purchasers has all necessary corporate power and authority to execute and deliver the
Transaction Documents to which each of the Purchasers is a party, to perform its obligations hereunder and thereunder and to consummate the transactions contemplated hereby and thereby. The execution and delivery of each of the Transaction Documents
to which each of the Purchasers is a party and the performance by each of the Purchasers of its obligations hereunder and thereunder have been duly authorized by each of the Purchasers. Each of the Transaction Documents to which each of the
Purchasers is party has been duly executed and delivered by each of the Purchasers. Each of the Transaction Documents to which each of the Purchasers is party, assuming the valid execution and delivery by the Sellers, constitutes the legal, valid
and binding obligation of each of the Purchasers, enforceable against such Purchaser in accordance with its respective terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors rights
generally, general equitable principles and principles of public policy.
Section 3.4 Governmental and Third Party
Authorizations. The execution and delivery by each of the Purchasers of the Transaction Documents to which each of the Purchasers is party, the performance by each of the Purchasers of its obligations hereunder and thereunder and the
consummation of the transactions contemplated hereby and thereby do not require any consent, approval, license, order, authorization or declaration from, notice to, action or registration by, or filing with, any Governmental Authority or any other
Person, except for filings to be made following the Closing in respect of the Closing Consideration Shares in accordance with U.S. securities laws.
Section 3.5 No Litigation. There is no (a) action, suit, arbitration proceeding, claim, demand, citation, summons, subpoena,
investigation or other proceeding (whether civil, criminal, administrative, regulatory, investigative or informal) pending or, to the knowledge of either Purchaser, threatened by or against the Purchasers, at law or in equity, or (b) inquiry or
investigation (whether civil, criminal, administrative, regulatory, investigative or informal) by or before a Governmental Authority pending or, to the knowledge of either Purchaser, threatened against the Purchasers, that, in any case challenges or
seeks to prevent or delay the consummation of any of the transactions contemplated by any of the Transaction Documents.
Section 3.6
Access to Information. Each of the Purchasers acknowledges that it has (a) reviewed the documents and information relating to the Assigned Interests and (b) had the opportunity to ask such questions of, and to receive answers from,
representatives of the Sellers concerning the Assigned Interests, in each case as it deemed necessary to make an informed
-7-
decision to purchase, acquire and accept the Assigned Interests in accordance with the terms of this Agreement. Each of the Purchasers has such knowledge, sophistication and experience in
financial and business matters that it is capable of evaluating the risks and merits of purchasing, acquiring and accepting the Assigned Interests in accordance with the terms of this Agreement.
Section 3.7 Solvency. Immediately after giving effect to the consummation of the transactions contemplated by the Transaction
Documents and the application of the proceeds therefrom, (a) the fair value of each of the Purchasers assets will be greater than the sum of its debts, liabilities and other obligations, including contingent liabilities, (b) the
present fair saleable value of each of the Purchasers assets will be greater than the amount that would be required to pay its probable liabilities on its existing debts, liabilities and other obligations, including contingent liabilities, as
they become absolute and matured in the normal course of business, (c) each of the Purchasers will be able to realize upon its assets and pay its debts, liabilities and other obligations, including contingent obligations, as they mature,
(d) each of the Purchasers will not have unreasonably small capital with which to engage in its business, as now conducted and as proposed to be conducted following the Closing Date, (e) each of the Purchasers will not have become subject
to any Bankruptcy Event and (f) each of the Purchasers will not have been rendered insolvent within the meaning of Section 101(32) of Title 11 of the United States Code. For purposes of this Section 3.7, the amount of all
contingent obligations at any time shall be computed as the amount that, in light of all facts and circumstances existing at such time, can be reasonably expected to become an actual or matured liability.
Section 3.8 No Brokers Fees. Each of the Purchasers has not taken any action that would entitle any Person to any commission
or brokers fee in connection with the transactions contemplated by this Agreement.
Section 3.9 Closing Consideration
Shares.
(a) The Closing Consideration Shares are duly authorized and, when issued under this Agreement will be validly issued, fully
paid and nonassessable, free and clear of all Liens (other than restrictions on transfer under U.S. securities laws).
(b) Agenus has
filed all reports, schedules, forms, statements and other documents required to be filed by Agenus under the Securities and Exchange Act of 1934, as amended, including pursuant to Section 13(a) or 15(d) thereof, for the two years preceding the
date of this Agreement (the foregoing materials, including the exhibits thereto and documents incorporated by reference therein, together with the prospectus and any prospectus supplement, being collectively referred to herein as the SEC
Reports) on a timely basis or has received a valid extension of such time of filing and has filed any such SEC Reports prior to the expiration of any such extension. As of their respective dates, the SEC Reports (including the financial
statements contained therein) complied in all material respects with the requirements of the Securities and Exchange Act of 1934, as amended, as applicable, and none of the SEC Reports, when filed, contained any untrue statement of a material fact
or omitted to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading.
Section 3.10 No Other Representations and Warranties. Except for the representations and warranties contained in this
Article III, neither the Purchasers nor any other Person has made or makes any other express or implied representation or warranty, either written or oral, on behalf of the Purchasers, including any representation or warranty as to the
accuracy or completeness of any information regarding the Assigned Interests furnished or made available to the Sellers and their representatives and any information, documents or material made available to the Sellers, management presentations or
in any other form in expectation of the transactions contemplated hereby) or any representation or warranty arising from statute or otherwise in law.
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ARTICLE IV
COVENANTS
The Parties
covenant and agree as follows:
Section 4.1 Public Announcement. No Party shall, and each Party shall cause its Affiliates not
to, without the prior written consent of the other Party (which consent shall not be unreasonably withheld or delayed), issue any press release or make any other public disclosure with respect to this Agreement or the other Transaction Document or
any of the transactions contemplated hereby or thereby, except if and to the extent that any such release or disclosure is required by Applicable Law (including in connection with Section 4.4 or Section 4.5), by the rules and
regulations of any securities exchange or market on which any security of such Party may be listed or traded or by any Governmental Authority of competent jurisdiction, in which case, the Party proposing to issue such press release or make such
public disclosure shall, to the extent reasonably practicable, (a) provide to the other Party a copy of such proposed release or disclosure and (b) consider in good faith any comments or changes that the other Party may propose or suggest.
Notwithstanding the foregoing, each of the Sellers agrees that Agenus may, without prior consultation with either Seller, file with the SEC a Current Report on Form 8-K and make other filings required by the SEC describing the material terms of the
transactions contemplated by this Agreement and the other Transaction Document.
Section 4.2 Further Assurances.
(a) Subject to the terms and conditions of this Agreement, each Party, shall (at the expense of the other) execute and deliver such other
documents, certificates, instruments, agreements and other writings, take such other actions and perform such additional acts under Applicable Law as may be reasonably requested by the other Party and necessary to implement expeditiously the
transactions contemplated by, and to carry out the purposes and intent of the provisions of, this Agreement and the other Transaction Document, including to (i) perfect the sale, contribution, assignment, transfer, conveyance and granting of
the Assigned Interests to AgenMA pursuant to this Agreement, (ii) perfect, protect, more fully evidence, vest and maintain in AgenMA good, valid and marketable rights and interests in and to the Assigned Interests free and clear of all Liens
(other than Liens arising under applicable securities laws or the GSK Agreements or the GSK ROFN and Amendment Agreement), (iii) enable the Purchasers to exercise or enforce any of the Purchasers rights under any Transaction Document to
which the Purchasers are parties and (iv) to terminate the Escrow Agreement promptly following the Closing.
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(b) The Sellers and the Purchasers shall cooperate and provide assistance as reasonably requested
by the other Party, at the expense of such other Party (except as otherwise set forth herein), in connection with any litigation, arbitration, investigation or other proceeding (whether threatened, existing, initiated or contemplated prior to, on or
after the Closing Date) to which the other Party, any of its Affiliates or controlling persons or any of their respective officers, directors, managers, employees or controlling persons is or may become a Party or is or may become otherwise directly
or indirectly affected or as to which any such Persons have a direct or indirect interest, in each case relating to any Transaction Document, the transactions contemplated hereby or thereby or the Assigned Interests, but in all cases excluding any
litigation brought by either Seller (for itself or himself or on behalf of any Seller Indemnified Party) against either Purchasers or brought by either Purchaser (for itself or on behalf of any Buyer Indemnified Party) against either Seller.
(c) Each of the Parties shall use its or his commercially reasonably efforts to comply with all Applicable Laws with respect to the
Transaction Documents and the Assigned Interests, in each case the violation of which would have a material adverse effect, except where compliance therewith is being contested by any of the Parties in good faith by appropriate proceedings.
(d) No Party shall enter into any contract, agreement or other legally binding arrangement (whether written or oral), or grant any right to
any other Person, in any case that would reasonably be expected to conflict with the Transaction Documents or serve or operate to limit or circumscribe any of the other Parties rights under the Transaction Documents (or such Parties
ability to exercise any such rights).
Section 4.3 [Reserved].
Section 4.4 Registration Statements. Agenus shall exercise commercially reasonable efforts to either amend a current Registration
Statement on Form S-3 or file a new Registration Statement on Form S-3 (in either case, the Registration Statement) within 120 days after the Closing Date to provide for the resale of the Closing Consideration Shares issued to the
Sellers hereunder. Agenus shall use its commercially reasonable efforts to cause any such Registration Statement to become effective as soon as practicable following the filing thereof.
Section 4.5 Covenants of Agenus Regarding the Closing Consideration Shares.
(a) Each Seller shall furnish all information reasonably requested by Agenus for inclusion in the Registration Statement and any related
prospectus. Agenus shall use its commercially reasonable efforts to have the Registration Statement promptly declared effective by the SEC. Agenus shall use commercially reasonable efforts to keep the Registration Statement effective pursuant to
Rule 415 promulgated under the Securities Act of 1933, as amended (the Securities Act), and available for sales of all of the Closing Consideration Shares at all times until the earlier of (i) the date as of which the Sellers
may sell all of the Closing Consideration Shares without restriction pursuant to the last sentence of Rule 144(b)(1)(i) promulgated under the Securities Act (or successor thereto) or (ii) the date on which the Sellers shall have sold all the
Closing Consideration Shares (the Registration Period). The Registration Statement (including any amendments or supplements thereto and prospectuses
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contained therein) shall not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein, or necessary to make the statements therein, in light
of the circumstances in which they were made, not misleading; provided, however, that Agenus shall not be liable with respect to any information furnished to Agenus by or on behalf of the Sellers or their Affiliates in writing specifically for use
in the preparation of such Registration Statement (including any amendments or supplements thereto and prospectuses contained therein).
(b) Agenus shall, as required by applicable securities regulations, from time to time file with the SEC, pursuant to Rule 424 promulgated
under the Securities Act, the prospectus and prospectus supplements, if any, to be used in connection with sales of the Closing Consideration Shares under the Registration Statement.
(c) Agenus shall prepare and file with the SEC such amendments (including post-effective amendments) and supplements to any registration
statement and the prospectus used in connection with such registration statement, which prospectus is to be filed pursuant to Rule 424 promulgated under the Securities Act, as may be necessary to keep the Registration Statement effective at all
times during the Registration Period, and, during such period, comply with the provisions of the Securities Act with respect to the disposition of all Closing Consideration Shares covered by the Registration Statement until such time as all of such
Closing Consideration Shares shall have been disposed of in accordance with the intended methods of disposition by the seller or sellers thereof as set forth in such registration statement.
(d) Upon request of either Seller, Agenus shall furnish to such Seller, (i) promptly after the same is prepared and filed with the SEC,
at least one copy of such Registration Statement and any amendment(s) thereto, including financial statements and schedules, all documents incorporated therein by reference and all exhibits, (ii) upon the effectiveness of any Registration
Statement, a copy of the prospectus included in such registration statement and all amendments and supplements thereto (or such other number of copies as such Seller may reasonably request) and (iii) such other documents, including copies of
any preliminary or final prospectus, as such Seller may reasonably request from time to time.
(e) Agenus shall use commercially
reasonable efforts to (i) register and qualify the Closing Consideration Shares covered by the Registration Statement under such other securities or blue sky laws of such jurisdictions in the United States as each Seller reasonably
requests, (ii) prepare and file in those jurisdictions, such amendments (including post-effective amendments) and supplements to such registrations and qualifications as may be necessary to maintain the effectiveness thereof during the
Registration Period, (iii) take such other actions as may be necessary to maintain such registrations and qualifications in effect at all times during the Registration Period, and (iv) take all other actions reasonably necessary or
advisable to qualify the Closing Consideration Shares for sale in such jurisdictions; provided, that Agenus shall not be required in connection therewith or as a condition thereto to (x) qualify to do business in any jurisdiction where
it would not otherwise be required to qualify but for this Section, (y) subject itself to general taxation in any such jurisdiction, or (z) file a general consent to service of process in any such jurisdiction. Agenus shall promptly notify
each Seller of the receipt by Agenus of any notification with respect to the suspension of the registration or
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qualification of any of the Closing Consideration Shares for sale under the securities or blue sky laws of any jurisdiction in the United States or its receipt of actual notice of the
initiation or threatening of any proceeding for such purpose.
(f) Agenus shall use its commercially reasonable efforts to prevent the
issuance of any stop order or other suspension of effectiveness of any registration statement, or the suspension of the qualification of any Closing Consideration Shares for sale in any jurisdiction and, if such an order or suspension is issued, to
obtain the withdrawal of such order or suspension as promptly as possible and to notify each Seller of the issuance of such order and the resolution thereof or its receipt of actual notice of the initiation or threat of any proceeding for such
purpose.
(g) With a view to making available to each Seller the benefits of Rule 144 promulgated under the Securities Act (Rule
144) or any other similar rule or regulation of the SEC that may at any time permit such Seller to sell securities of Agenus to the public without registration, Agenus will (i) make and keep public information available, as those
terms are understood and defined in Rule 144; and (ii) file with the SEC in a timely manner all reports and other documents required of Agenus under the Securities Act and the Securities and Exchange Act of 1934, as amended, so long as Agenus
remains subject to such requirements and the filing of such reports and other documents is required for the applicable provisions of Rule 144.
ARTICLE V
THE CLOSING
Section 5.1 Closing. The closing of the transactions contemplated hereby (the Closing) shall take place on
Tuesday, September 8, 2015 (the Closing Date) at the offices of Goodwin Procter LLP located at Exchange Place, Boston, MA 02109, or such other place as the Parties mutually agree.
Section 5.2 Conditions of Purchasers Obligations at the Closing. The obligations of the Purchasers under Article I of this
Agreement are subject to the fulfillment, on or before the Closing, of each of the following conditions:
(a) The Bill of
Sale shall have been duly executed by the Sellers and delivered to the Purchasers;
(b) A general partner of Ingalls shall
deliver a certificate (the statements made in which shall be true and correct on and as of the Closing Date) to the Purchasers: (i) setting forth the incumbency of the officer or officers of Ingalls who have executed and delivered the
Transaction Documents, including therein a signature specimen of each such officer or officers and (ii) attaching a copy, certified by such officer as true and complete, of a good standing certificate of the appropriate Governmental Authority
of Ingalls jurisdiction of organization, stating that Ingalls is in good standing under the laws of such jurisdiction;
(c) A completed IRS Form W-9s executed by each of the Sellers shall have been delivered to the Purchasers; and
(d) The representations and warranties of the Sellers contained in Article II shall be true on the date hereof and as of the
date of the Closing.
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Section 5.3 Conditions of the Sellers Obligations at the Closing. The
obligations of the Sellers under Article I of this Agreement are subject to the fulfillment, on or before the Closing, of each of the following conditions:
(a) The Bill of Sale shall have been duly executed by the Purchasers and delivered to the Sellers;
(b) AgenMA shall have delivered (or caused to be delivered) the Closing Cash Consideration in accordance with
Section 1.2;
(c) AgenMA shall have delivered (or caused to be delivered) the Closing Consideration Shares,
allocated in accordance with Exhibit D, and Agenus shall have instructed its transfer agent to deliver stock certificates representing such Closing Consideration Shares to the Sellers promptly (or otherwise issue the shares through the
transfer agents book-entry system);
(d) A completed IRS Form W-9s executed by each of the Purchasers shall have been
delivered to the Sellers; and
(e) The representations and warranties of the Purchasers contained in Article III shall
be true on the date hereof and as of the date of the Closing.
ARTICLE VI
INDEMNIFICATION
Section 6.1 Indemnification by the Sellers. The Sellers agree to severally and not jointly indemnify and hold harmless the
Purchasers and their respective Affiliates and any or all of their respective partners, directors, officers, managers, employees, members, agents and controlling persons (each, a Purchaser Indemnified Party) harmless from and
against, and will pay to each Purchaser Indemnified Party the amount of, any and all Losses awarded against or incurred or suffered by such Purchaser Indemnified Party, whether or not involving a Third Party Claim, arising out of (a) any breach
of any representation or warranty made by such Seller in any of the Transaction Documents or in any certificate delivered by such Seller to the Purchasers in writing pursuant to this Agreement, (b) [RESERVED], (c) breach of or default
under any covenant or agreement of such Seller in any of the Transaction Documents, (d) any Excluded Liabilities and Obligations or (e) any brokerage or finders fees or commissions or similar amounts incurred or owed by such Seller
to any brokers, financial advisors or comparable other Persons retained or employed by it in connection with the transactions contemplated by this Agreement; provided, however, that the foregoing shall exclude any indemnification to
any Purchaser Indemnified Party (i) for any matter in respect of which any Seller Indemnified Party would be entitled to indemnification under Section 6.2, (ii) that results from the bad faith, gross negligence or willful
misconduct of any Purchaser Indemnified Party or the material breach by Purchaser of this Agreement, or (iii) to the extent resulting from acts or omissions of such Seller based upon the written instructions from any Purchaser Indemnified
Party. Any amounts due to any Purchaser Indemnified Party hereunder shall be payable by such Seller to such Purchaser Indemnified Party upon demand.
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Section 6.2 Indemnification by the Purchasers. The Purchasers agree to jointly and
severally indemnify and hold each of the Sellers and their respective Affiliates and any or all of their respective partners, directors, officers, managers, members, employees, agents and controlling Persons (each, a Seller Indemnified
Party) harmless from and against, and will pay to each Seller Indemnified Party the amount of, any and all Losses awarded against or incurred or suffered by such Seller Indemnified Party, whether or not involving a Third Party Claim,
arising out of (a) any breach of any representation or warranty made by the Purchasers in any of the Transaction Documents or any certificate delivered by the Purchasers to the Sellers in writing pursuant to this Agreement, (b) any breach
of or default under any covenant or agreement of the Purchasers in any Transaction Document to which the Purchasers are parties, (c) any Assumed Liability, if any or (d) any brokerage or finders fees or commissions or similar amounts
incurred or owed by the Purchasers to any brokers, financial advisors or comparable other Persons retained or employed by it in connection with the transactions contemplated by this Agreement; provided, however, that the foregoing
shall exclude any indemnification to any Seller Indemnified Party (i) that results from the bad faith, gross negligence or willful misconduct of any Seller Indemnified Party or the material breach by any Seller of this Agreement, (ii) for
any matter in respect of which any Purchaser Indemnified Party would be entitled to indemnification under Section 6.1 or (iii) to the extent resulting from acts or omissions of the Purchasers based upon the written instructions from
any Seller Indemnified Party. Any amounts due to any Seller Indemnified Party hereunder shall be payable by the Purchasers to such Seller Indemnified Party upon demand.
Section 6.3 Procedures for Third Party Claims. If any Third Party Claim shall be brought or alleged against an indemnified party
in respect of which indemnity is to be sought against an indemnifying party pursuant to Section 6.1 or Section 6.2, the indemnified party shall, promptly after receipt of notice of the commencement of such Third Party Claim,
notify the indemnifying party in writing of the commencement thereof, enclosing a copy of all papers served, if any; provided, that the omission to so notify such indemnifying party will not relieve the indemnifying party from any liability
that it may have to any indemnified party under Section 6.1 or Section 6.2 unless, and only to the extent that, the indemnifying party is actually prejudiced or harmed by such omission. In the event that any Third Party Claim
is brought against an indemnified party and it notifies the indemnifying party of the commencement thereof in accordance with this Section 6.3, the indemnifying party will be entitled, at the indemnifying partys sole cost and
expense, to participate therein and, to the extent that it may wish, to assume the defense thereof, with counsel reasonably satisfactory to such indemnified party, and, after notice from the indemnifying party to such indemnified party of its
election so to assume the defense thereof, the indemnifying party will not be liable to such indemnified party under this Article VI for any legal or other expenses subsequently incurred by such indemnified party in connection with the
defense thereof other than reasonable costs of investigation. In any such Third Party Claim, an indemnified party shall have the right to retain its own counsel, but the reasonable fees and expenses of such counsel shall be at the sole cost and
expense of such indemnified party unless (a) the indemnifying party and the indemnified party shall have mutually agreed to the retention of such counsel, (b) the indemnifying party has assumed the
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defense of such proceeding and has failed within a reasonable time to retain counsel reasonably satisfactory to such indemnified party or (c) the named parties to any such Third Party Claim
(including any impleaded parties) include both the indemnifying party and the indemnified party and representation of both parties by the same counsel would be inappropriate due to actual conflicts of interests between them based on the advice of
counsel to the indemnifying party. It is agreed that the indemnifying party shall not, in connection with any Third Party Claim or related proceedings in the same jurisdiction, be liable for the fees and expenses of more than one separate law firm
(in addition to local counsel where necessary) for all such indemnified parties. The indemnifying party shall not be liable for any settlement of any Third Party Claim effected without its written consent, but, if settled with such consent or if
there be a final judgment for the plaintiff, the indemnifying party agrees to indemnify the indemnified party from and against any Loss by reason of such settlement or judgment. No indemnifying party shall, without the prior written consent of the
indemnified party (which consent will not be unreasonably withheld, conditioned or delayed), effect any settlement, compromise or discharge of any pending or threatened Third Party Claim in respect of which any indemnified party is or could have
been a party and indemnity could be sought hereunder by such indemnified party, unless such settlement, compromise or discharge, as the case may be, (i) includes an unconditional written release of such indemnified party, in form and substance
reasonably satisfactory to the indemnified party, from all liability on claims that are the subject matter of such claim or proceeding, (ii) does not include any statement as to an admission of fault, culpability or failure to act by or on
behalf of any indemnified party and (iii) does not impose any continuing material obligation or restrictions on any indemnified party.
Section 6.4 Other Claims. A claim by an indemnified party under this ARTICLE VI for any matter not involving a Third Party
Claim and in respect of which such indemnified party would be entitled to indemnification hereunder may be made by delivering, in good faith, a written notice of demand to the indemnifying party, which notice shall contain (a) a description and
the amount of any Losses incurred or suffered or reasonably expected to be incurred or suffered by the indemnified party, (b) a statement that the indemnified party is entitled to indemnification under this ARTICLE VI for such Losses and
a reasonable explanation of the basis therefor, and (c) a demand for payment in the amount of such Losses. For all purposes of this Section 6.4, the Sellers shall be entitled to deliver such notice of demand to the Purchasers on
behalf of the Seller Indemnified Parties, and the Purchasers shall be entitled to deliver such notice of demand to the Sellers on behalf of the Purchaser Indemnified Parties.
Section 6.5 Exclusive Remedy. Except in the case of actual fraud or intentional breach and except as set forth in
Section 8.4, the indemnification afforded by this Article VI shall be the sole and exclusive remedy for any and all Losses awarded against or incurred or suffered by a Party in connection with the transactions contemplated by the
Transaction Documents, including with respect to any breach of any representation or warranty made by a Party in any of the Transaction Documents or any certificate delivered by a Party to the other Party in writing pursuant to this Agreement or any
breach of or default under any covenant or agreement by a Party pursuant to any Transaction Document.
Section 6.6
Limitations. No Party shall be liable for any consequential, punitive, special or incidental damages, or damages measured by any diminution in value, under this
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Article VI (and no claim for indemnification hereunder shall be asserted) as a result of any breach or violation of any covenant or agreement of such party (including under this Article VI) in or
pursuant to this Agreement (it is understood that nothing in this Section 6.6 shall limit the right of a Seller Indemnified Party or a Purchaser Indemnified Party to be indemnified for punitive, special or incidental damages in a Third
Party Claim). Notwithstanding the foregoing, the foregoing limitations on damages shall not apply in the event of any breach of covenant by a Party done in bad faith.
Section 6.7 Subrogation. Upon making any indemnity payment pursuant to Section 6.1 or Section 6.2, as
applicable, the indemnifying party shall be subrogated to the rights of a Purchaser Indemnified Party or Seller Indemnified Party, as applicable, against any third party in respect of the Losses to which the payment related. The Parties will execute
upon request all instruments reasonably necessary to evidence and perfect the above described subrogation rights.
ARTICLE VII
TERMINATION
Section 7.1 Termination of Agreement. This Agreement may only be terminated by mutual written agreement of all Parties.
ARTICLE VIII
MISCELLANEOUS
Section 8.1 Defined Terms. The following terms, as used herein, shall have the following respective meanings:
Affiliate has the meaning set forth in the Ingalls Agreement.
AgenMA has the meaning set forth in the preamble.
Agenus has the meaning set forth in the preamble.
Agreement has the meaning set forth in the preamble.
Applicable Law means, with respect to any Person, all laws, rules, regulations and orders of Governmental Authorities
applicable to such Person or any of its properties or assets.
Assigned Interests has the meaning set forth in the
Ingalls Agreement.
Assumed Liabilities means the liabilities and obligations of either Seller under the GSK Agreements
or the GSK ROFN and Amendment Agreement occurring after the consummation of the Closing (other than liabilities and obligations that relate exclusively to a breach thereof prior to the consummation of the Closing).
Bankruptcy Event means the occurrence of any of the following in respect of any Person: (a) an admission in writing by
such Person of its inability to pay its debts as they become due or a general assignment by such Person for the benefit of creditors; (b) the filing of any
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petition or answer by such Person seeking to adjudicate itself as bankrupt or insolvent, or seeking for itself any liquidation, winding-up, reorganization, arrangement, adjustment, protection,
relief or composition of such Person or its debts under any law relating to bankruptcy, insolvency, receivership, winding-up, liquidation, reorganization, examination, relief of debtors or other similar law now or hereafter in effect, or seeking,
consenting to or acquiescing in the entry of an order for relief in any case under any such law, or the appointment of or taking possession by a receiver, trustee, custodian, liquidator, examiner, assignee, sequestrator or other similar official for
such Person or for any substantial part of its property; (c) corporate or other entity action taken by such Person to authorize any of the actions set forth in clause (a) or (b) of this definition; or (d) without the consent or
acquiescence of such Person, the entering of an order for relief or approving a petition for relief or reorganization or any other petition seeking any reorganization, arrangement, composition, readjustment, liquidation, dissolution or other similar
relief under any present or future bankruptcy, insolvency or similar statute, law or regulation, or the filing of any such petition against such Person, or, without the consent or acquiescence of such Person, the entering of an order appointing a
trustee, custodian, receiver or liquidator of such Person or of all or any substantial part of the property of such Person, in each case where such petition or order shall remain unstayed or shall not have been stayed or dismissed within ninety
(90) days from entry thereof.
Bill of Sale means that certain bill of sale, dated as of the Closing Date,
executed by each Seller and the Purchaser, substantially in the form of Exhibit B.
Business Day has the meaning
set forth in the Ingalls Agreement.
Closing has the meaning set forth in Section 5.1.
Closing Cash Consideration has the meaning set forth in Section 1.2.
Closing Consideration Shares has the meaning set forth in Section 1.2.
Closing Date has the meaning set forth in Section 5.1.
Code means the United States Internal Revenue Code of 1986, as amended, and the regulations thereunder.
Escrow Agreement has the meaning set forth in the Ingalls Agreement.
Excluded Liabilities and Obligations has the meaning set forth in Section 1.3.
FDA means the United States Food and Drug Administration and any successor agency thereto.
GAAP means generally accepted accounting principles in effect in the United States from time to time.
GSK means GlaxoSmithKline Biologicals SA, a Belgian company.
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GSK Agreements means, collectively, (a) the GSK Manufacturing Agreement
and (b) the GSK License Agreement.
GSK License Agreement means that certain License Agreement, dated July 6,
2006, by and between AgenMA and GSK, as amended by the GSK ROFN and Amendment Agreement.
GSK Manufacturing
Agreement means that certain Amended and Restated Manufacturing Technology Transfer and Supply Agreement, dated January 16, 2009, by and between the Purchasers and GSK, as amended by the GSK ROFN and Amendment Agreement.
GSK ROFN and Amendment Agreement means that certain First Right to Negotiate and Amendment Agreement, dated as of
March 2, 2012, by and among AgenMA and GSK.
Governmental Authority means the government of the United States, any
other nation or any political subdivision thereof, whether state or local, and any agency, authority (including supranational authority), commission, instrumentality, regulatory body, court, central bank or other Person exercising executive,
legislative, judicial, taxing, regulatory or administrative powers or functions of or pertaining to government or any government authority in any country.
Koenig has the meaning set forth in the preamble.
Ingalls has the meaning set forth in the preamble.
Ingalls Agreement has the meaning set forth in the recitals.
Lien means any security interest, mortgage, pledge, hypothecation, assignment, deposit arrangement, encumbrance or lien
(statutory or otherwise), in each case to secure payment of a debt or performance of an obligation, including any conditional sale or any sale with recourse.
Loss means, subject to Section 6.5, any loss, liability, cost, expense (including reasonable costs of
investigation and defense and reasonable attorneys fees and expenses), charge, fine, penalty, obligation, judgment, award, assessment, claim or cause of action.
Oberland has meaning set forth in the recitals.
Oberland Agreement has meaning set forth in the recitals.
Party means each of the Sellers or each of the Purchasers, as the context requires, and Parties means,
together, the Sellers and the Purchasers.
Person means any natural person, firm, corporation, limited liability
company, partnership, joint venture, association, joint-stock company, trust, unincorporated organization, Governmental Authority or any other legal entity, including public bodies, whether acting in an individual, fiduciary or other capacity.
Purchase Price has the meaning set forth in Section 1.2.
Purchaser or Purchasers has the meaning set forth in the preamble.
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Purchaser Indemnified Party has the meaning set forth in
Section 6.1.
Registration Period has the meaning set forth in Section 4.5(a).
Registration Statement has the meaning set forth in Section 4.4.
Rule 144 has the meaning set forth in Section 4.5(g).
SEC means the United States Securities and Exchange Commission.
SEC Reports has the meaning set forth in Section 3.9(b).
Securities Act has the meaning set forth in Section 4.5.
Seller or Sellers has the meaning set forth in the preamble.
Seller Account the account of the Sellers set forth on Exhibit C (or such other account as the Sellers shall notify
the Purchasers in writing from time to time).
Seller Indemnified Party has the meaning set forth in
Section 6.2.
Third Party means any Person that is not a Party.
Third Party Claim means any claim, action, suit or proceeding by a Third Party, including any investigation by any
Governmental Authority.
Transaction Documents means this Agreement and the Bill of Sale.
Section 8.2 Rules of Construction.
(a) Unless the context otherwise requires, in this Agreement:
(i) a term has the meaning assigned to it and an accounting term not otherwise defined has the meaning assigned to it in
accordance with GAAP;
(ii) words of the masculine, feminine or neuter gender shall mean and include the correlative words
of other genders;
(iii) the terms include, including and similar terms shall be construed as if
followed by the phrase without limitation;
(iv) unless otherwise specified, references to a contract or
agreement include references to such contract or agreement as from time to time amended, restated, reformed, supplemented or otherwise modified in accordance with its terms (subject to any restrictions on such amendments, restatements, reformations,
supplements or modifications set forth herein), and include any annexes, exhibits and schedules hereto or thereto, as the case may be;
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(v) any reference to any Person shall be construed to include such Persons
successors and assigns (subject to any restrictions on assignment, transfer or delegation set forth herein or in the other Transaction Document) and any reference to a Person in a particular capacity excludes such Person in other capacities;
(vi) references to any Applicable Law shall include such Applicable Law as from time to time in effect, including any
amendment, modification, codification, replacement, or reenactment thereof or any substitution therefor;
(vii) the word
will shall be construed to have the same meaning and effect as the word shall;
(viii) the words
hereof, herein, hereunder and similar terms shall refer to this Agreement as a whole and not to any particular provision hereof, and Article, Section and Exhibit references herein are references to Articles and
Sections of, and Exhibits to, this Agreement unless otherwise specified;
(ix) the definitions of terms shall apply equally
to the singular and plural forms of the terms defined;
(x) in the computation of a period of time from a specified date to
a later specified date, the word from means from and including and each of the words to and until means to but excluding;
(xi) where any payment is to be made, any funds are to be applied or any calculation is to be made under this Agreement on a
day that is not a Business Day, unless this Agreement otherwise provides, such payment shall be made, such funds shall be applied and such calculation shall be made on the succeeding Business Day, and payments shall be adjusted accordingly; and
(xii) any reference to a term that is defined by reference to its meaning in the Ingalls Agreement shall refer to such
terms meaning in the Ingalls Agreement as in existence on the date hereof (and not to any new, substituted or amended version thereof).
(b) The provisions of this Agreement shall be construed according to their fair meaning and neither for nor against any Party irrespective of
which Party caused such provisions to be drafted. Each Party acknowledges that it has been represented by an attorney in connection with the preparation and execution of this Agreement and the other Transaction Document.
Section 8.3 Survival. All representations, warranties and covenants made in this Agreement, in any other Transaction Document or
in any certificate delivered pursuant to this Agreement shall survive the execution and delivery of this Agreement and the Closing. The rights hereunder to indemnification, payment of Losses or other remedies based on any such representation,
warranty or covenant shall not be affected by any investigation conducted with respect to, or any knowledge acquired (or capable of being acquired) at any time (whether before or after the execution and delivery of this Agreement or the Closing) in
respect of the accuracy or inaccuracy of or compliance with, any such representation, warranty or covenant.
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Section 8.4 Specific Performance. Each of the Parties acknowledges and agrees that
the other Parties would be damaged irreparably in the event any of the provisions of this Agreement or the other Transaction Document are not performed in accordance with their specific terms or otherwise are breached or violated. Accordingly,
notwithstanding Section 6.5, each of the Parties agrees that, without posting bond or other undertaking, the other parties will be entitled to an injunction or injunctions to prevent breaches or violations of the provisions of this
Agreement or the other Transaction Document and to enforce specifically this Agreement and the other Transaction Document and the terms and provisions hereof and thereof in any action, suit or other proceeding instituted in any court of the United
States or any state thereof having jurisdiction over the parties and the matter in addition to any other remedy to which it may be entitled, at law or in equity. Each Party further agrees that, in the event of any action for specific performance in
respect of such breach or violation, it will not assert that the defense that a remedy at law would be adequate.
Section 8.5
Notices. All notices, consents, waivers and other communications hereunder shall be in writing and shall be effective (a) upon receipt when sent by registered or certified mail, return receipt requested, postage prepaid, with such
receipt to be effective the date of delivery indicated on the return receipt, (b) upon receipt when sent by an overnight courier (costs prepaid and receipt requested), (c) on the date personally delivered to an authorized officer of the
Party to which sent or (d) on the date transmitted by facsimile or other electronic transmission with a confirmation of receipt (in all cases with a copy e-mailed to the recipient at the applicable e-mail address), addressed to the recipient as
follows:
if to the Purchasers, to:
Antigenics LLC
c/o Agenus Inc.
3 Forbes Road
Lexington, MA
02421-7305
Attention: Chief Financial Officer
Telephone:
Facsimile:
Email:
with another copy to
(which shall not constitute notice):
Antigenics LLC
c/o Agenus Inc.
3 Forbes Road
Lexington, MA 02421-7305
Attention: Legal Department
Telephone:
Facsimile:
Email:
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with another copy to (which shall not constitute notice):
Goodwin Procter LLP
Attention:
Telephone:
Facsimile:
Email:
if to the Sellers, to:
Ingalls & Snyder LLC
Attention:
Telephone:
Facsimile:
Email:
with another copy to (which shall not constitute notice):
Hughes Hubbard & Reed LLP
Attention:
Telephone:
Facsimile:
Email:
Each Party may, by notice given in accordance herewith to the other Party, designate any further or different address to which subsequent
notices, consents, waivers and other communications shall be sent.
Section 8.6 Expenses. Except as otherwise provided herein,
all fees, costs and expenses (including any legal, accounting and banking fees) incurred in connection with the preparation, negotiation, execution and delivery of this Agreement and the other Transaction Documents and to consummate the transactions
contemplated hereby and thereby shall be paid by the Party incurring such fees, costs and expenses.
Section 8.7 Successors and
Assigns. The Sellers shall not be entitled to assign any of their rights or delegate any of their obligations under this Agreement without the prior written consent of the Purchasers. The Purchasers may, without the consent of the Sellers,
assign any of their rights and delegate any of their obligations under this Agreement without restriction. The Purchasers shall give written notice to the Sellers of any assignment permitted by this Section 8.7 promptly after the
occurrence thereof. The Sellers shall be under no obligation to reaffirm any
-22-
representations, warranties or covenants made in this Agreement or the other Transaction Document or take any other action in connection with any such assignment by the Purchasers. Any purported
assignment of rights or delegation of obligations in violation of this Section 8.7 will be void. Subject to the foregoing, this Agreement will apply to, be binding upon, and inure to the benefit of, the successors and permitted assigns
of the Parties.
Section 8.8 Independent Nature of Relationship. The relationship between the Sellers and the Purchasers is
solely that of seller and purchaser, and neither the Sellers nor the Purchasers has any fiduciary or other special relationship with the other Party or any of their respective Affiliates. Nothing contained herein or in any other Transaction Document
shall be deemed to constitute the Sellers and the Purchasers as a partnership, an association, a joint venture or any other kind of entity or legal form.
Section 8.9 Entire Agreement. This Agreement, together with the Exhibits and Schedules hereto, and the other Transaction Document,
constitute a complete and exclusive statement of the terms of agreement between the Parties, and supersede all prior agreements, understandings and negotiations, both written and oral, between the Parties, with respect to the subject matter of this
Agreement. No representation, inducement, promise, understanding, condition or warranty not set forth herein (or in the Exhibits or Schedules hereto or the other Transaction Document) has been made or relied upon by any Party.
Section 8.10 Governing Law. This Agreement shall be governed by, and construed, interpreted and enforced in accordance with, the
laws of the state of New York, without giving effect to the principles of conflicts of law thereof.
Section 8.11 Jurisdiction;
Venue; Waiver of Jury Trial.
(a) EACH OF THE PURCHASERS AND THE SELLERS HEREBY IRREVOCABLY AND UNCONDITIONALLY SUBMITS, FOR ITSELF
AND ITS PROPERTY AND ASSETS, TO THE EXCLUSIVE JURISDICTION OF ANY NEW YORK STATE COURT OR FEDERAL COURT OF THE UNITED STATES OF AMERICA SITTING IN NEW YORK COUNTY, NEW YORK, AND ANY APPELLATE COURT THEREOF, IN ANY ACTION OR PROCEEDING ARISING OUT OF
OR RELATING TO THE TRANSACTION DOCUMENTS, OR FOR RECOGNITION OR ENFORCEMENT OF ANY JUDGMENT IN RESPECT THEREOF, AND THE PURCHASERS AND THE SELLERS HEREBY IRREVOCABLY AND UNCONDITIONALLY AGREE THAT ALL CLAIMS IN RESPECT OF ANY SUCH ACTION OR
PROCEEDING MAY BE HEARD AND DETERMINED IN ANY SUCH NEW YORK STATE COURT OR, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN SUCH FEDERAL COURT. THE PURCHASERS AND THE SELLERS HEREBY AGREE THAT A FINAL JUDGMENT IN ANY SUCH ACTION OR PROCEEDING
SHALL BE CONCLUSIVE AND MAY BE ENFORCED IN OTHER JURISDICTIONS BY SUIT ON THE JUDGMENT OR IN ANY OTHER MANNER PROVIDED BY APPLICABLE LAW. EACH OF THE PURCHASERS AND THE SELLERS HEREBY SUBMITS TO THE EXCLUSIVE PERSONAL JURISDICTION AND VENUE OF SUCH
NEW YORK STATE AND FEDERAL COURTS. THE PURCHASERS AND THE SELLERS AGREE, TO THE FULLEST EXTENT
-23-
PERMITTED BY APPLICABLE LAW, THAT PROCESS MAY BE SERVED ON THE PURCHASERS OR THE SELLERS IN THE SAME MANNER THAT NOTICES MAY BE GIVEN PURSUANT TO SECTION 8.5 HEREOF.
(b) EACH OF THE PURCHASERS AND THE SELLERS HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO THE FULLEST EXTENT IT MAY LEGALLY AND EFFECTIVELY
DO SO, ANY OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT IN ANY NEW YORK STATE OR FEDERAL COURT. EACH OF THE PARTIES HEREBY IRREVOCABLY WAIVES, TO THE
FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE DEFENSE OF AN INCONVENIENT FORUM TO THE MAINTENANCE OF SUCH ACTION OR PROCEEDING IN ANY SUCH COURT.
(c) EACH PARTY TO THIS AGREEMENT HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT SUCH PARTY MAY HAVE TO A TRIAL BY JURY OF ANY DISPUTE
AND AGREES THAT ANY COURT PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY TRANSACTION DOCUMENT AND AGREES THAT ANY SUCH DISPUTE SHALL BE DECIDED BY A JUDGE SITTING WITHOUT A JURY.
Section 8.12 Severability. If any term or provision of this Agreement shall for any reason be held to be invalid, illegal or
unenforceable in any situation in any jurisdiction, then, to the extent that the economic and legal substance of the transactions contemplated hereby is not affected in a manner that is materially adverse to either Party, all other terms and
provisions of this Agreement shall nevertheless remain in full force and effect and the enforceability and validity of the offending term or provision shall not be affected in any other situation or jurisdiction.
Section 8.13 Counterparts. This Agreement may be executed in any number of counterparts and by the Parties in separate
counterparts, each of which when so executed shall be deemed to be an original and all of which taken together shall constitute one and the same agreement. Copies of executed counterparts transmitted by telecopy, facsimile or other electronic
transmission service shall be considered original executed counterparts, provided receipt of such counterparts is confirmed.
Section 8.14 Amendments; No Waivers.
(a) This Agreement may be amended, modified or supplemented only in a writing signed by each of the Parties. Any provision of this Agreement
may be waived only in a writing signed by the Parties granting such waiver.
(b) No failure or delay on the part of any Party in
exercising any right, power or remedy hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any such right, power or remedy preclude any other or further exercise thereof or the exercise of any other right, power
or remedy. No course of dealing between the Parties shall be effective to amend, modify, supplement or waive any provision of this Agreement.
-24-
Section 8.15 No Third Party Rights. Other than the Parties, no Person will have any
legal or equitable right, remedy or claim under or with respect to this Agreement or the other Transaction Document. This Agreement may be amended or terminated, and any provision of this Agreement may be waived, without the consent of any Person
who is not a Party. The Sellers shall enforce any legal or equitable right, remedy or claim under or with respect to this Agreement for the benefit of the Seller Indemnified Parties and the Purchasers shall enforce any legal or equitable right,
remedy or claim under or with respect to this Agreement for the benefit of the Purchaser Indemnified Parties.
Section 8.16 Table
of Contents and Headings. The Table of Contents and headings of the Articles and Sections of this Agreement have been inserted for convenience of reference only, are not to be considered a part hereof and shall in no way modify or restrict any
of the terms or provisions hereof.
{SIGNATURE PAGE FOLLOWS}
-25-
IN WITNESS WHEREOF, the Parties have executed this Agreement as of the day and year first written
above.
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INGALLS & SNYDER VALUE PARTNERS, L.P. |
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By: |
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/s/ Thomas O. Boucher, Jr. |
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Name: Thomas O. Boucher, Jr. |
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Title: General Partner |
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and |
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By: |
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/s/ Robert L. Gipson |
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Name: Robert L. Gipson |
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Title: Senior Director |
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ARTHUR KOENIG |
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/s/ Arthur Koenig |
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AGENUS INC. |
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By: |
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/s/ C. Evan Ballantyne |
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Name: C. Evan Ballantyne |
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Title: Chief Financial Officer |
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ANTIGENICS LLC |
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By: |
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/s/ C. Evan Ballantyne |
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Name: C. Evan Ballantyne |
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Title: Treasurer |
-26-
EXHIBIT A
OBERLAND AGREEMENT
A-1
EXHIBIT B
FORM OF BILL OF SALE
This BILL OF SALE is dated as of September 8, 2015 (the Closing Date) by Ingalls & Snyder Value Partners,
L.P. (Ingalls) and Arthur Koenig (Koenig, and together with Ingalls, the Sellers), in favor of Agenus Inc., a Delaware corporation (Agenus) and Antigenics LLC, a Delaware
limited liability company (as the successor in interest to Antigenics Inc., formerly a Massachusetts corporation) (AgenMA, and together with Agenus, the Purchasers).
RECITALS
WHEREAS, the Sellers
and the Purchasers are parties to that certain Revenue Interest Assignment and Termination Agreement, dated as of September 4, 2015 (the Revenue Interest Assignment and Termination Agreement), pursuant to which, among other
things, the Sellers agree to irrevocably sell, contribute, assign, transfer, convey and grant to AgenMA, and AgenMA agree to purchase, acquire and accept from the Sellers, all of the Sellers right, title and interest in, to and under the
Assigned Interests, for the consideration described in the Revenue Interest Assignment and Termination Agreement; and
WHEREAS, the
Parties now desire to carry out the purposes of the Revenue Interest Assignment and Termination Agreement by the execution and delivery of this instrument evidencing AgenMAs purchase, acquisition and acceptance of the Assigned Interests.
NOW, THEREFORE, in consideration of the premises and the mutual agreements set forth in the Revenue Interest Assignment and Termination
Agreement and of other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the Parties agree as follows:
1. Each Seller, by this Bill of Sale, does hereby irrevocably sell, contribute, assign, transfer, convey and grant to AgenMA,
and AgenMA does hereby purchase, acquire and accept all of such Sellers right, title and interest in and to the Assigned Interests.
2. The Parties acknowledge that the Purchasers are not assuming any of the Excluded Liabilities and Obligations but are
assuming the Assumed Liabilities, if any.
3. This Bill of Sale (i) is made pursuant to, and is subject to the terms
of, the Revenue Interest Assignment and Termination Agreement and (ii) shall be binding upon and inure to the benefit of the Sellers, the Purchasers and their respective successors and permitted assigns, for the uses and purposes set forth and
referred to above, effective immediately upon its delivery to the Purchasers.
4. THIS BILL OF SALE SHALL BE GOVERNED BY,
AND CONSTRUED, INTERPRETED AND ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK, WITHOUT GIVING EFFECT TO THE PRINCIPLES OF CONFLICTS OF LAW THEREOF.
B-1
5. This Bill of Sale may be executed in any number of counterparts and by the
parties hereto in separate counterparts, each of which when so executed shall be deemed to be an original and all of which taken together shall constitute one and the same agreement. Copies of executed counterparts transmitted by telecopy, facsimile
or other electronic transmission service shall be considered original executed counterparts, provided receipt of such counterparts is confirmed.
6. The following terms as used herein shall have the following respective meanings:
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a. |
Affiliate means, with respect to any particular Person, any other Person directly or indirectly controlling, controlled by or under common control with such particular Person. |
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b. |
Assigned Interests has the meaning set forth in the Revenue Interest Assignment Agreement, dated as of April 15, 2013 by and among the Sellers and the Purchasers. |
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c. |
Assumed Liabilities means the liabilities and obligations of either Seller under the GSK Agreements occurring after the consummation of the Closing (other than liabilities and obligations that relate
exclusively to a breach thereof prior to the consummation of the Closing). |
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d. |
Closing means the closing of the transactions contemplated by the Revenue Interest Assignment and Termination Agreement. |
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e. |
Contract means any legally enforceable oral or written agreement, arrangement, instrument, contract, promise, license or other undertaking. |
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f. |
Excluded Liabilities and Obligations means any liability or obligation of the Sellers or any of the Sellers Affiliates of whatever nature, whether presently in existence or arising or asserted
hereafter, other than the Assumed Liabilities. |
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g. |
Governmental Entity means: (i) nation, principality, republic, state, commonwealth, province, territory, county, municipality, district or other jurisdiction of any nature; (ii) federal,
state, local, municipal, foreign or other government; (iii) governmental or quasi-governmental authority of any nature (including any governmental division, subdivision, department, agency, bureau, branch, office, commission, council, board,
instrumentality, officer, official, representative, organization, unit, body or other entity and any court or other tribunal); (iv) multi-national organization or body; or (v) individual, body or other entity exercising, or entitled to
exercise, any executive, legislative, judicial, administrative, regulatory, police, military or taxing authority or power of any nature. |
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h. |
GSK means GlaxoSmithKline Biologicals SA, a Belgian company. |
B-2
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i. |
GSK Agreements means, collectively, the GSK License Agreement, and GSK Manufacturing Agreement and GSK ROFN and Amendment Agreement. |
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j. |
GSK License Agreement means that certain License Agreement, dated July 6, 2006, by and between AgenMA and GSK, as amended by the GSK ROFN and Amendment Agreement. |
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k. |
GSK Manufacturing Agreement means that certain Amended and Restated Manufacturing Technology Transfer and Supply Agreement, dated January 16, 2009, by and between AgenMA and GSK, as amended by
the GSK ROFN and Amendment Agreement. |
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l. |
GSK ROFN and Amendment Agreement means that certain First Right to Negotiate and Amendment Agreement, dated as of March 2, 2012, by and among AgenMA and GSK. |
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m. |
Person means any individual, firm, corporation, company, partnership, limited liability company, trust, joint venture, association, estate, trust, Governmental Entity or other entity, enterprise,
association or organization. |
B-3
IN WITNESS WHEREOF, the Parties have executed this Bill of Sale as of the day and year first
written above.
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INGALLS & SNYDER VALUE PARTNERS, L.P. |
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By: |
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Name: |
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Title: |
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ARTHUR KOENIG |
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AGENUS INC. |
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By: |
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Name: |
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Title: |
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ANTIGENICS LLC |
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By: |
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Name: |
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Title: |
B-4
EXHIBIT C
SELLER ACCOUNT
C-1
EXHIBIT D
ALLOCATION OF CLOSING CONSIDERATION SHARES
D-1
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