|
Cayman Islands
(State or other jurisdiction of
incorporation or organization) |
| |
6770
(Primary Standard Industrial
Classification Code Number) |
| |
Not Applicable
(I.R.S. Employer
Identification No.) |
|
|
Mitchell S. Nussbaum, Esq.
Giovanni Caruso, Esq. Loeb & Loeb LLP 345 Park Avenue New York, NY 10154 Tel: (212) 407-4000 Fax: (212) 407-4990 |
| |
Ari Edelman, Esq.
Eric S. Klee, Esq. McDermott Will & Emery LLP One Vanderbilt Avenue New York, NY 10017 Tel: (212) 547-5400 Fax: (212) 547-5444 |
|
|
Large accelerated filer
☐
|
| |
Accelerated filer
☐
|
|
|
Non-accelerated
☒
|
| |
Smaller reporting company
☒
|
|
| | | |
Emerging growth company
☒
|
|
|
/s/
Someit Sidhu
Chief Executive Officer JATT Acquisition Corp , 2023 |
| | | |
| | |
Page
|
| |||
| | | | 1 | | | |
| | | | 5 | | | |
| | | | 7 | | | |
| | | | 25 | | | |
| | | | 47 | | | |
| | | | 105 | | | |
| | | | 110 | | | |
| | | | 137 | | | |
| | | | 149 | | | |
| | | | 151 | | | |
| | | | 154 | | | |
| | | | 156 | | | |
| | | | 164 | | | |
| | | | 166 | | | |
| | | | 170 | | | |
| | | | 171 | | | |
| | | | 184 | | | |
| | | | 185 | | | |
| | | | 189 | | | |
| | | | 190 | | | |
| | | | 196 | | | |
| | | | 197 | | | |
| | | | 200 | | | |
| | | | 206 | | | |
| | | | 250 | | | |
| | | | 262 | | | |
| | | | 271 | | | |
| | | | 275 | | | |
| | | | 283 | | | |
| | | | 288 | | | |
| | | | 296 | | | |
| | | | 303 | | | |
| | | | 305 | | | |
| | | | 311 | | | |
| | | | 311 | | | |
| | | | 312 | | | |
| | | | 312 | | |
| | |
Page
|
| |||
| | | | 312 | | | |
| | | | 312 | | | |
| | | | 312 | | | |
| | | | 313 | | | |
| | | | F-1 | | | |
| | | | A-1 | | |
| | |
No Redemption Scenario
|
| |
50% Redemption Scenario
|
| |
Maximum Redemption Scenario
|
| |||||||||||||||||||||||||||
| | |
Shares
|
| |
%
|
| |
Shares
|
| |
%
|
| |
Shares
|
| |
%
|
| ||||||||||||||||||
JATT Public Shareholders(1)
|
| | | | 13,800,000 | | | | | | 35.5% | | | | | | 6,900,000 | | | | | | 21.6% | | | | | | — | | | | | | — | | |
JATT Initial Shareholders(2)
|
| | | | 3,450,000 | | | | | | 8.9% | | | | | | 3,450,000 | | | | | | 10.8% | | | | | | 3,450,000 | | | | | | 13.0% | | |
PIPE Investor(3)
|
| | | | 2,000,000 | | | | | | 5.1% | | | | | | 2,000,000 | | | | | | 6.3% | | | | | | 2,000,000 | | | | | | 7.5% | | |
FPA Investors(4)
|
| | | | 3,000,000 | | | | | | 7.8% | | | | | | 3,000,000 | | | | | | 9.4% | | | | | | 4,500,000 | | | | | | 16.9% | | |
Eli Lilly(5)
|
| | | | 550,000 | | | | | | 1.4% | | | | | | 550,000 | | | | | | 1.7% | | | | | | 550,000 | | | | | | 2.1% | | |
Zura Holdco Shareholders(6)
|
| | | | 16,057,000 | | | | | | 41.3% | | | | | | 16,057,000 | | | | | | 50.2% | | | | | | 16,057,000 | | | | | | 60.5% | | |
Amit Munshi(7)
|
| | | | — | | | | | | 0 | | | | | | — | | | | | | 0 | | | | | | — | | | | | | 0 | | |
Total Shares at the Closing(8)
|
| | |
|
38,857,000
|
| | | |
|
100%
|
| | | |
|
31,957,000
|
| | | |
|
100%
|
| | | |
|
26,557,000
|
| | | |
|
100%
|
| |
Total Equity Value Post-Redemption(9)
|
| | | $ | 392,455,700 | | | | | | | | | | | $ | 322,765,700 | | | | | | | | | | | $ | 268,225,700 | | | | | | | | |
Assumed Per Share Value
|
| | | $ | 10.10 | | | | | | | | | | | $ | 10.10 | | | | | | | | | | | $ | 10.10 | | | | | | | | |
| | |
No redemptions(1)
|
| |
50% Redemptions(2)
|
| |
100% Redemptions(3)
|
| |||||||||||||||||||||||||||
| | |
Shares
|
| |
%(4)
|
| |
Shares
|
| |
%(4)
|
| |
Shares
|
| |
%(4)
|
| ||||||||||||||||||
JATT Public Shareholders
|
| | | | 13,800,000 | | | | | | 26.3% | | | | | | 6,900,000 | | | | | | 15.2% | | | | | | — | | | | | | 0 | | |
JATT Initial Shareholders
|
| | | | 3,450,000 | | | | | | 6.6% | | | | | | 3,450,000 | | | | | | 7.6% | | | | | | 3,450,000 | | | | | | 8.6% | | |
PIPE Investor
|
| | | | 2,000,000 | | | | | | 3.8% | | | | | | 2,000,000 | | | | | | 4.4% | | | | | | 2,000,000 | | | | | | 5.0% | | |
FPA Investors
|
| | | | 3,000,000 | | | | | | 5.7% | | | | | | 3,000,000 | | | | | | 6.6% | | | | | | 4,500,000 | | | | | | 11.2% | | |
Eli Lilly
|
| | | | 550,000 | | | | | | 1.0% | | | | | | 550,000 | | | | | | 1.2% | | | | | | 550,000 | | | | | | 1.4% | | |
Zura Holdco Shareholders
|
| | | | 16,057,000 | | | | | | 30.6% | | | | | | 16,057,000 | | | | | | 35.3% | | | | | | 16,057,000 | | | | | | 40.0% | | |
Amit Munshi(5)
|
| | | | — | | | | | | 0 | | | | | | — | | | | | | 0 | | | | | | — | | | | | | 0 | | |
Exercising Redeemable Public Warrants(6)
|
| | | | 6,900,000 | | | | | | 13.2% | | | | | | 6,900,000 | | | | | | 15.2% | | | | | | 6,900,000 | | | | | | 17.2% | | |
Exercising JATT Private Placement
Warrants(7) |
| | | | 5,910,000 | | | | | | 11.3% | | | | | | 5,910,000 | | | | | | 13.0% | | | | | | 5,910,000 | | | | | | 14.7% | | |
Exercising Lender Warrants(8)
|
| | | | 300,000 | | | | | | 0.6% | | | | | | 300,000 | | | | | | 0.7% | | | | | | 300,000 | | | | | | 0.7% | | |
Exercising Holdco Options(9)
|
| | | | 443,000 | | | | | | 0.8% | | | | | | 443,000 | | | | | | 1.0% | | | | | | 443,000 | | | | | | 1.1% | | |
Total Additional Dilution Sources
|
| | | | 13,553,000 | | | | | | 25.9% | | | | | | 13,553,000 | | | | | | 29.8% | | | | | | 13,553,000 | | | | | | 33.8% | | |
Total Fully-Diluted Shares
|
| | | | 52,410,000 | | | | | | 100% | | | | | | 45,510,000 | | | | | | 100% | | | | | | 40,110,000 | | | | | | 100% | | |
| | |
No
Redemptions |
| |
50%
Redemptions |
| |
100%
Redemptions |
| |||||||||
Public Ordinary Shares plus PIPE Investor and FPA Investors Shares
|
| | | | 18,800,000(1) | | | | | | 11,900,000(2) | | | | | | 6,500,000(3) | | |
Deferred underwriting commission
|
| | | $ | 4,010,000 | | | | | $ | 4,010,000 | | | | | $ | 4,010,000 | | |
Deferred underwriting commission at $10 per share
|
| | | | 401,000 | | | | | | 401,000 | | | | | | 401,000 | | |
Deferred underwriting commissions as a percentage of post-redemption shares
|
| | | | 2.1% | | | | | | 3.4% | | | | | | 6.2% | | |
|
US Toll Free
|
| | | | 1-800-450-7155 | | |
|
International Toll (Standard rates apply)
|
| | | | 1-857-999-9155 | | |
|
Participant Passcode
|
| | | | [ ]# | | |
| | |
No Redemption
Scenario |
| |
50% Redemption
Scenario |
| |
Maximum Redemption
Scenario |
| |||||||||||||||||||||||||||
| | |
Shares
|
| |
%
|
| |
Shares
|
| |
%
|
| |
Shares
|
| |
%
|
| ||||||||||||||||||
JATT Public Shareholders(1)
|
| | | | 13,800,000 | | | | | | 35.5% | | | | | | 6,900,000 | | | | | | 21.6% | | | | | | — | | | | | | — | | |
JATT Initial Shareholders(2)
|
| | | | 3,450,000 | | | | | | 8.9% | | | | | | 3,450,000 | | | | | | 10.8% | | | | | | 3,450,000 | | | | | | 13.0% | | |
PIPE Investor(3)
|
| | | | 2,000,000 | | | | | | 5.1% | | | | | | 2,000,000 | | | | | | 6.3% | | | | | | 2,000,000 | | | | | | 7.5% | | |
FPA Investors(4)
|
| | | | 3,000,000 | | | | | | 7.8% | | | | | | 3,000,000 | | | | | | 9.4% | | | | | | 4,500,000 | | | | | | 16.9% | | |
Eli Lilly(5)
|
| | | | 550,000 | | | | | | 1.4% | | | | | | 550,000 | | | | | | 1.7% | | | | | | 550,000 | | | | | | 2.1% | | |
Zura Holdco Shareholders(6)
|
| | | | 16,057,000 | | | | | | 41.3% | | | | | | 16,057,000 | | | | | | 50.2% | | | | | | 16,057,000 | | | | | | 60.5% | | |
Amit Munshi(7)
|
| | | | — | | | | | | 0 | | | | | | — | | | | | | 0 | | | | | | — | | | | | | 0 | | |
Total Shares at the Closing(8)
|
| | |
|
38,857,000
|
| | | |
|
100%
|
| | | |
|
31,957,000
|
| | | |
|
100%
|
| | | |
|
26,557,000
|
| | | |
|
100%
|
| |
Total Equity Value
Post-Redemption(9) |
| | | $ | 392,455,700 | | | | | | | | | | | $ | 322,765,700 | | | | | | | | | | | $ | 268,225,700 | | | | | | | | |
Assumed Per Share Value
|
| | | $ | 10.10 | | | | | | | | | | | $ | 10.10 | | | | | | | | | | | $ | 10.10 | | | | | | | | |
| | |
No redemptions(1)
|
| |
50% Redemptions(2)
|
| |
100% Redemptions(3)
|
| |||||||||||||||||||||||||||
| | |
Shares
|
| |
%(4)
|
| |
Shares
|
| |
%(4)
|
| |
Shares
|
| |
%(4)
|
| ||||||||||||||||||
JATT Public Shareholders
|
| | | | 13,800,000 | | | | | | 26.3% | | | | | | 6,900,000 | | | | | | 15.2% | | | | | | — | | | | | | 0 | | |
JATT Initial Shareholders
|
| | | | 3,450,000 | | | | | | 6.6% | | | | | | 3,450,000 | | | | | | 7.6% | | | | | | 3,450,000 | | | | | | 8.6% | | |
| | |
No redemptions(1)
|
| |
50% Redemptions(2)
|
| |
100% Redemptions(3)
|
| |||||||||||||||||||||||||||
| | |
Shares
|
| |
%(4)
|
| |
Shares
|
| |
%(4)
|
| |
Shares
|
| |
%(4)
|
| ||||||||||||||||||
PIPE Investor
|
| | | | 2,000,000 | | | | | | 3.8% | | | | | | 2,000,000 | | | | | | 4.4% | | | | | | 2,000,000 | | | | | | 5.0% | | |
FPA Investors
|
| | | | 3,000,000 | | | | | | 5.7% | | | | | | 3,000,000 | | | | | | 6.6% | | | | | | 4,500,000 | | | | | | 11.2% | | |
Eli Lilly
|
| | | | 550,000 | | | | | | 1% | | | | | | 550,000 | | | | | | 1.2% | | | | | | 550,000 | | | | | | 1.4% | | |
Zura Holdco Shareholders
|
| | | | 16,057,000 | | | | | | 30.6% | | | | | | 16,057,000 | | | | | | 35.3% | | | | | | 16,057,000 | | | | | | 40.0% | | |
Amit Munshi(5)
|
| | | | — | | | | | | 0 | | | | | | — | | | | | | 0 | | | | | | — | | | | | | 0 | | |
Exercising Redeemable Public Warrants(6)
|
| | | | 6,900,000 | | | | | | 13.2% | | | | | | 6,900,000 | | | | | | 15.2% | | | | | | 6,900,000 | | | | | | 17.2% | | |
Exercising JATT Private Placement Warrants(7)
|
| | | | 5,910,000 | | | | | | 11.3% | | | | | | 5,910,000 | | | | | | 13.0% | | | | | | 5,910,000 | | | | | | 14.7% | | |
Exercising Lender Warrants(8)
|
| | | | 300,000 | | | | | | 0.6% | | | | | | 300,000 | | | | | | 0.7% | | | | | | 300,000 | | | | | | 0.7% | | |
Exercising Holdco Options(9)
|
| | | | 443,000 | | | | | | 0.8% | | | | | | 443,000 | | | | | | 1.0% | | | | | | 443,000 | | | | | | 1.1% | | |
Total Additional Dilution Sources
|
| | | | 13,553,000 | | | | | | 25.9% | | | | | | 13,553,000 | | | | | | 29.8% | | | | | | 13,553,000 | | | | | | 33.8% | | |
Total Fully-Diluted Shares
|
| | | | 52,410,000 | | | | | | 100% | | | | | | 45,510,000 | | | | | | 100% | | | | | | 40,110,000 | | | | | | 100% | | |
| | |
No
Redemptions |
| |
50%
Redemptions |
| |
100%
Redemptions |
| |||||||||
Public Ordinary Shares plus PIPE Investor and FPA Investors Shares
|
| | | | 18,800,000(1) | | | | | | 11,900,000(2) | | | | | | 6,500,000(3) | | |
Deferred underwriting commission
|
| | | $ | 4,010,000 | | | | | $ | 4,010,000 | | | | | $ | 4,010,000 | | |
Deferred underwriting commission in shares (at
$10 per share) |
| | | | 401,000 | | | | | | 401,000 | | | | | | 401,000 | | |
Deferred underwriting commissions as a
percentage of post-redemption shares |
| | | | 2.1% | | | | | | 3.4% | | | | | | 6.2% | | |
Jurisdiction
|
| |
Status
|
|
Canada | | |
Granted (active)*
|
|
Europe: France, Germany, Ireland, Italy, Spain, UK | | |
Granted (active)*
|
|
Japan | | |
Granted (active)*
|
|
Japan | | |
Granted (active)*
|
|
US | | |
Granted (active)*
|
|
US | | |
Granted (active)*
|
|
US | | |
Granted (active)*
|
|
US | | |
Granted (active)*
|
|
PCT | | | Phase Ended | |
|
US Toll Free
|
| | | | 1-800-450-7155 | | |
|
International Toll (Standard rates apply)
|
| | | | 1-857-999-9155 | | |
|
Participant Passcode
|
| | | | [ ]# | | |
Company
|
| |
Most Recent
Clinical Trial Completion Date |
| |
Total Trials
Enrollment |
| |
Date of Latest
Raise |
| |
Total Capital
Raised to Latest Raise Date |
| |
Invested
Capital per Trial Subject |
| |||||||||||||||
Acticor Biotech
|
| | | | Sep-21 | | | | | | 220 | | | | | | Sep-21 | | | | | $ | 36 | | | | | $ | 0.16 | | |
GamaMabs Pharma
|
| | | | Feb-21 | | | | | | 143 | | | | | | Sep-21 | | | | | $ | 31 | | | | | $ | 0.22 | | |
Kymab
|
| | | | Nov-20 | | | | | | 177 | | | | | | Apr-21 | | | | | $ | 258 | | | | | $ | 1.46 | | |
ILiAD Biotechnologies
|
| | | | Jun-20 | | | | | | 300 | | | | | | Mar-21 | | | | | $ | 30 | | | | | $ | 0.10 | | |
LENZ Therapeutics
|
| | | | May-20 | | | | | | 78 | | | | | | Nov-20 | | | | | $ | 12 | | | | | $ | 0.15 | | |
AptaTargets
|
| | | | Mar-20 | | | | | | 46 | | | | | | Oct-20 | | | | | $ | 13 | | | | | $ | 0.28 | | |
Star Therapeutics
|
| | | | Feb-20 | | | | | | 97 | | | | | | Feb-22 | | | | | $ | 100 | | | | | $ | 1.03 | | |
ImaginAb
|
| | | | Aug-18 | | | | | | 72 | | | | | | Jun-21 | | | | | $ | 59 | | | | | $ | 0.82 | | |
Pfenex
|
| | | | May-18 | | | | | | 342 | | | | | | Oct-20 | | | | | $ | 70 | | | | | $ | 0.21 | | |
Reprixys Pharmaceuticals
|
| | | | Mar-16 | | | | | | 198 | | | | | | Nov-16 | | | | | $ | 52 | | | | | $ | 0.26 | | |
NKT Therapeutics
|
| | | | May-15 | | | | | | 21 | | | | | | Jun-18 | | | | | $ | 28 | | | | | $ | 1.33 | | |
Minka Therapeutics
|
| | | | Dec-14 | | | | | | 33 | | | | | | May-15 | | | | | $ | 19 | | | | | $ | 0.58 | | |
Biosceptre
|
| | | | Apr-14 | | | | | | 21 | | | | | | Jul-14 | | | | | $ | 5 | | | | | $ | 0.22 | | |
Avaxia Biologics
|
| | | | Dec-13 | | | | | | 33 | | | | | | Jul-15 | | | | | $ | 24 | | | | | $ | 0.72 | | |
Theraclone Sciences
|
| | | | Mar-13 | | | | | | 88 | | | | | | Apr-15 | | | | | $ | 59 | | | | | $ | 0.67 | | |
Ligocyte Pharmaceuticals
|
| | | | Oct-09 | | | | | | 61 | | | | | | May-10 | | | | | $ | 28 | | | | | $ | 0.46 | | |
Invested Capital per Clinical Trial Subject
|
| |
Median
|
| |
Average
|
| ||||||
Invested Capital per Trial Subject
|
| | | $ | 0.37 | | | | | $ | 0.54 | | |
Company Total Trials Enrollment
|
| | | | 117 | | | | | | 117 | | |
Estimated Invested Capital
|
| | | $ | 44 | | | | | $ | 64 | | |
Target Company
|
| |
IPO Date
|
| |
Development-stage
at IPO Date |
| |
Pre-$ IPO
Equity Value |
| |
Capital Raised Prior
to IPO |
| |
Return on IC
Pre-$ IPO Equity Value / Capital Raised |
| |
Current
Market Cap |
| ||||||||||||
AN2 Therapeutics (NAS: ANTX)
|
| |
Mar-22
|
| |
Clinical Trials – Phase 1
|
| | | $ | 212 | | | | | $ | 92 | | | | | | 2.31x | | | | | $ | 158 | | |
Arcellx (NAS: ACLX)
|
| |
Feb-22
|
| |
Clinical Trials – Phase 1
|
| | | $ | 379 | | | | | $ | 229 | | | | | | 1.66x | | | | | $ | 639 | | |
Vigil Neuro (NAS: VIGL)
|
| |
Jan-22
|
| |
Clinical Trials – Phase 1
|
| | | $ | 298 | | | | | $ | 140 | | | | | | 2.13x | | | | | $ | 82 | | |
Immix Biopharma (NAS: IMMX)
|
| |
Dec-21
|
| |
Clinical Trials – Phase 1
|
| | | $ | 17 | | | | | $ | 1 | | | | | | 22.51x | | | | | $ | 34 | | |
Xilio Therapeutics (NAS: XLO)
|
| |
Oct-21
|
| |
Clinical Trials – Phase 1
|
| | | $ | 309 | | | | | $ | 246 | | | | | | 1.26x | | | | | $ | 65 | | |
Ventyx Biosciences (NAS: VTYX)
|
| |
Oct-21
|
| |
Clinical Trials – Phase 2
|
| | | $ | 631 | | | | | $ | 275 | | | | | | 2.30x | | | | | $ | 662 | | |
Cognition Therapeutics (NAS: CGTX)
|
| |
Oct-21
|
| |
Clinical Trials – Phase 2
|
| | | $ | 211 | | | | | $ | 36 | | | | | | 5.95x | | | | | $ | 46 | | |
Theseus (NAS: THRX)
|
| |
Oct-21
|
| |
Clinical Trials – General
|
| | | $ | 440 | | | | | $ | 122 | | | | | | 3.61x | | | | | $ | 194 | | |
Dermata (NAS: DRMA)
|
| |
Aug-21
|
| |
Clinical Trials – Phase 2
|
| | | $ | 40 | | | | | $ | 25 | | | | | | 1.64x | | | | | $ | 5 | | |
Eliem Therapeutics (NAS: ELYM)
|
| |
Aug-21
|
| |
Clinical Trials – Phase 2
|
| | | $ | 237 | | | | | $ | 140 | | | | | | 1.69x | | | | | $ | 124 | | |
Adagio Therapeutics (NAS: ADGI)
|
| |
Aug-21
|
| |
Clinical Trials – Phase 1
|
| | | $ | 1,535 | | | | | $ | 466 | | | | | | 3.30x | | | | | $ | 290 | | |
IN8bio (NAS: INAB)
|
| |
Jul-21
|
| |
Clinical Trials – Phase 1
|
| | | $ | 148 | | | | | $ | 35 | | | | | | 4.21x | | | | | $ | 39 | | |
Erasca (NAS: ERAS)
|
| |
Jul-21
|
| |
Clinical Trials – Phase 1
|
| | | $ | 1,558 | | | | | $ | 420 | | | | | | 3.71x | | | | | $ | 592 | | |
Imago BioSciences (NAS: IMGO)
|
| |
Jul-21
|
| |
Clinical Trials – Phase 2
|
| | | $ | 379 | | | | | $ | 161 | | | | | | 2.36x | | | | | $ | 430 | | |
TransCode Therapeutics (NAS: RNAZ)
|
| |
Jul-21
|
| |
Clinical Trials – General
|
| | | $ | 23 | | | | | $ | 1 | | | | | | 19.03x | | | | | $ | 16 | | |
Aerovate Therapeutics (NAS:
AVTE) |
| |
Jun-21
|
| |
Clinical Trials – Phase 1
|
| | | $ | 202 | | | | | $ | 82 | | | | | | 2.48x | | | | | $ | 282 | | |
Elevation Oncology (NAS: ELEV)
|
| |
Jun-21
|
| |
Clinical Trials – Phase 2
|
| | | $ | 265 | | | | | $ | 95 | | | | | | 2.79x | | | | | $ | 33 | | |
Lyell (NAS: LYEL)
|
| |
Jun-21
|
| |
Clinical Trials – General
|
| | | $ | 3,703 | | | | | $ | 851 | | | | | | 4.35x | | | | | $ | 1,113 | | |
Verve Therapeutics (NAS: VERV)
|
| |
Jun-21
|
| |
Clinical Trials – Phase 1
|
| | | $ | 609 | | | | | $ | 216 | | | | | | 2.83x | | | | | $ | 570 | | |
Janux Therapeutics (NAS: JANX)
|
| |
Jun-21
|
| |
Clinical Trials – Phase 1
|
| | | $ | 485 | | | | | $ | 201 | | | | | | 2.41x | | | | | $ | 444 | | |
Day One Biopharmaceuticals
(NAS: DAWN) |
| |
May-21
|
| |
Clinical Trials – General
|
| | | $ | 807 | | | | | $ | 190 | | | | | | 4.25x | | | | | $ | 980 | | |
Singular Genomics (NAS: OMIC)
|
| |
May-21
|
| |
Clinical Trials – General
|
| | | $ | 1,302 | | | | | $ | 70 | | | | | | 18.60x | | | | | $ | 202 | | |
Vera Therapeutics (NAS: VERA)
|
| |
May-21
|
| |
Clinical Trials – General
|
| | | $ | 177 | | | | | $ | 131 | | | | | | 1.35x | | | | | $ | 347 | | |
Target Company
|
| |
IPO Date
|
| |
Development-stage
at IPO Date |
| |
Pre-$ IPO
Equity Value |
| |
Capital Raised Prior
to IPO |
| |
Return on IC
Pre-$ IPO Equity Value / Capital Raised |
| |
Current
Market Cap |
| ||||||||||||
Talaris Therapeutics (NAS: TALS)
|
| |
May-21
|
| |
Clinical Trials – Phase 3
|
| | | $ | 551 | | | | | $ | 215 | | | | | | 2.56x | | | | | $ | 323 | | |
Werewolf Therapeutics (NAS: HOWL)
|
| |
Apr-21
|
| |
Clinical Trials – Phase 1
|
| | | $ | 321 | | | | | $ | 128 | | | | | | 2.50x | | | | | $ | 130 | | |
Rain Therapeutics (NAS: RAIN)
|
| |
Apr-21
|
| |
Clinical Trials – Phase 2
|
| | | $ | 316 | | | | | $ | 92 | | | | | | 3.44x | | | | | $ | 64 | | |
Biomea Fusion (NAS: BMEA)
|
| |
Apr-21
|
| |
Clinical Trials – Phase 1
|
| | | $ | 336 | | | | | $ | 56 | | | | | | 6.00x | | | | | $ | 249 | | |
VectivBio (NAS: VECT)
|
| |
Apr-21
|
| |
Clinical Trials – Phase 3
|
| | | $ | 451 | | | | | $ | 145 | | | | | | 3.11x | | | | | $ | 214 | | |
Connect Biopharmaceuticals
(NAS: CNTB) |
| |
Mar-21
|
| |
Clinical Trials – Phase 2
|
| | | $ | 758 | | | | | $ | 230 | | | | | | 3.30x | | | | | $ | 40 | | |
Finch (NAS: FNCH)
|
| |
Mar-21
|
| |
Clinical Trials – Phase 3
|
| | | $ | 674 | | | | | $ | 194 | | | | | | 3.47x | | | | | $ | 127 | | |
Longboard Pharmaceuticals
(NAS: LBPH) |
| |
Mar-21
|
| |
Clinical Trials – Phase 1
|
| | | $ | 191 | | | | | $ | 56 | | | | | | 3.40x | | | | | $ | 73 | | |
NexImmune (NAS:
NEXI) |
| |
Feb-21
|
| |
Clinical Trials – Phase 1
|
| | | $ | 256 | | | | | $ | 73 | | | | | | 3.49x | | | | | $ | 47 | | |
Terns Pharmaceuticals (NAS:
TERN) |
| |
Feb-21
|
| |
Clinical Trials – Phase 2
|
| | | $ | 280 | | | | | $ | 197 | | | | | | 1.42x | | | | | $ | 49 | | |
Landos Biopharma (NAS: LABP)
|
| |
Feb-21
|
| |
Clinical Trials – Phase 1
|
| | | $ | 527 | | | | | $ | 70 | | | | | | 7.52x | | | | | $ | 32 | | |
Sensei Biotherapeutics (NAS:
SNSE) |
| |
Feb-21
|
| |
Clinical Trials – Phase 1
|
| | | $ | 429 | | | | | $ | 93 | | | | | | 4.59x | | | | | $ | 60 | | |
Silverback Therapeutics (NAS: SBTX)
|
| |
Dec-20
|
| |
Clinical Trials – Phase 1
|
| | | $ | 453 | | | | | $ | 232 | | | | | | 1.95x | | | | | $ | 141 | | |
Kinnate Biopharma (NAS: KNTE)
|
| |
Dec-20
|
| |
Clinical Trials – Phase 1
|
| | | $ | 591 | | | | | $ | 195 | | | | | | 3.04x | | | | | $ | 384 | | |
Olema Oncology (NAS: OLMA)
|
| |
Nov-20
|
| |
Clinical Trials – Phase 1
|
| | | $ | 523 | | | | | $ | 151 | | | | | | 3.45x | | | | | $ | 134 | | |
Atea Pharmaceuticals (NAS:
AVIR) |
| |
Oct-20
|
| |
Clinical Trials – Phase 2
|
| | | $ | 1,638 | | | | | $ | 283 | | | | | | 5.78x | | | | | $ | 555 | | |
Foghorn Therapeutics (NAS:
FHTX) |
| |
Oct-20
|
| |
Clinical Trials – Phase 1
|
| | | $ | 451 | | | | | $ | 189 | | | | | | 2.39x | | | | | $ | 525 | | |
Aligos Therapeutics (NAS: ALGS)
|
| |
Oct-20
|
| |
Clinical Trials – Phase 1
|
| | | $ | 403 | | | | | $ | 225 | | | | | | 1.79x | | | | | $ | 57 | | |
Kiromic (NAS: KRBP)
|
| |
Oct-20
|
| |
Clinical Trials – Phase 1
|
| | | $ | 73 | | | | | $ | 20 | | | | | | 3.72x | | | | | $ | 7 | | |
Tarsus Pharmaceuticals (NAS: TARS)
|
| |
Oct-20
|
| |
Clinical Trials – Phase 3
|
| | | $ | 220 | | | | | $ | 64 | | | | | | 3.44x | | | | | $ | 333 | | |
Spruce Biosciences (NAS: SPRB)
|
| |
Oct-20
|
| |
Clinical Trials – Phase 2
|
| | | $ | 244 | | | | | $ | 116 | | | | | | 2.10x | | | | | $ | 37 | | |
Immunome (NAS:
IMNM) |
| |
Oct-20
|
| |
Clinical Trials – Phase 1
|
| | | $ | 81 | | | | | $ | 43 | | | | | | 1.90x | | | | | $ | 36 | | |
Graybug Vision (NAS: GRAY)
|
| |
Sep-20
|
| |
Clinical Trials – Phase 2
|
| | | $ | 231 | | | | | $ | 159 | | | | | | 1.45x | | | | | $ | 17 | | |
Prelude Therapeutics (NAS: PRLD)
|
| |
Sep-20
|
| |
Clinical Trials – Phase 1
|
| | | $ | 648 | | | | | $ | 145 | | | | | | 4.47x | | | | | $ | 204 | | |
Target Company
|
| |
IPO Date
|
| |
Development-stage
at IPO Date |
| |
Pre-$ IPO
Equity Value |
| |
Capital Raised Prior
to IPO |
| |
Return on IC
Pre-$ IPO Equity Value / Capital Raised |
| |
Current
Market Cap |
| ||||||||||||
Athira Pharma (NAS: ATHA)
|
| |
Sep-20
|
| |
Clinical Trials – Phase 2
|
| | | $ | 274 | | | | | $ | 113 | | | | | | 2.43x | | | | | $ | 302 | | |
Metacrine (NAS: MTCR)
|
| |
Sep-20
|
| |
Clinical Trials – Phase 1
|
| | | $ | 252 | | | | | $ | 135 | | | | | | 1.87x | | | | | $ | 19 | | |
Inhibrx (NAS: INBX)
|
| |
Aug-20
|
| |
Clinical Trials – Phase 1
|
| | | $ | 504 | | | | | $ | 55 | | | | | | 9.24x | | | | | $ | 333 | | |
Checkmate
Pharmaceuticals |
| |
Aug-20
|
| |
Clinical Trials – Phase 2
|
| | | $ | 247 | | | | | $ | 175 | | | | | | 1.41x | | | | | $ | 231 | | |
Annexon Biosciences (NAS: ANNX)
|
| |
Jul-20
|
| |
Clinical Trials – Phase 1
|
| | | $ | 361 | | | | | $ | 254 | | | | | | 1.42x | | | | | $ | 121 | | |
Inozyme Pharma (NAS: INZY)
|
| |
Jul-20
|
| |
Clinical Trials – General
|
| | | $ | 245 | | | | | $ | 150 | | | | | | 1.64x | | | | | $ | 181 | | |
Nurix (NAS: NRIX)
|
| |
Jul-20
|
| |
Clinical Trials – Phase 1
|
| | | $ | 495 | | | | | $ | 223 | | | | | | 2.21x | | | | | $ | 434 | | |
Relay Therapeutics (NAS: RLAY)
|
| |
Jul-20
|
| |
Clinical Trials – Phase 1
|
| | | $ | 1,338 | | | | | $ | 520 | | | | | | 2.57x | | | | | $ | 1,507 | | |
Poseida Therapeutics (NAS:
PSTX) |
| |
Jul-20
|
| |
Clinical Trials – Phase 2
|
| | | $ | 765 | | | | | $ | 324 | | | | | | 2.36x | | | | | $ | 131 | | |
Generation Bio (NAS: GBIO)
|
| |
Jun-20
|
| |
Clinical Trials – General
|
| | | $ | 648 | | | | | $ | 235 | | | | | | 2.75x | | | | | $ | 313 | | |
Lantern Pharma (NAS: LTRN)
|
| |
Jun-20
|
| |
Clinical Trials – Phase 2
|
| | | $ | 67 | | | | | $ | 5 | | | | | | 14.29x | | | | | $ | 53 | | |
Applied Molecular Transport
(NAS: AMTI) |
| |
Jun-20
|
| |
Clinical Trials – Phase 2
|
| | | $ | 300 | | | | | $ | 99 | | | | | | 3.04x | | | | | $ | 117 | | |
ORIC Pharmaceuticals (NAS: ORIC)
|
| |
Apr-20
|
| |
Clinical Trials – Phase 1
|
| | | $ | 341 | | | | | $ | 173 | | | | | | 1.97x | | | | | $ | 156 | | |
Zentalis Pharmaceuticals (NAS: ZNTL)
|
| |
Apr-20
|
| |
Clinical Trials – General
|
| | | $ | 456 | | | | | $ | 85 | | | | | | 5.36x | | | | | $ | 1,212 | | |
Imara (NAS: IMRA)
|
| |
Mar-20
|
| |
Clinical Trials – Phase 2
|
| | | $ | 190 | | | | | $ | 114 | | | | | | 1.67x | | | | | $ | 28 | | |
Revolution Medicines (NAS:
RVMD) |
| |
Feb-20
|
| |
Clinical Trials – Phase 1
|
| | | $ | 729 | | | | | $ | 226 | | | | | | 3.23x | | | | | $ | 1,248 | | |
Arcutis Biotherapeutics (NAS: ARQT)
|
| |
Jan-20
|
| |
Clinical Trials – Phase 3
|
| | | $ | 463 | | | | | $ | 166 | | | | | | 2.79x | | | | | $ | 1,019 | | |
Annovis Bio (NYS:
ANVS) |
| |
Jan-20
|
| |
Clinical Trials – Phase 2
|
| | | $ | 27 | | | | | $ | 11 | | | | | | 2.56x | | | | | $ | 91 | | |
| | |
Return on IC
Pre-$ Initial Public Offering Equity Value/Capital Raised |
| |
Observed
Value - Median Estimated Invested Capital ($44) |
| |
Observed
Value - Average Estimated Invested Capital ($64) |
| | | | |||||||||
Lower (First) Quartile:
|
| | | | 2.10x | | | | | $ | 92 | | | | | $ | 134 | | | | ||
Median:
|
| | | | 2.79x | | | | | $ | 121 | | | | | $ | 177 | | | | | |
Average:
|
| | | | 4.0x | | | | | $ | 174 | | | | | $ | 254 | | | | | |
Upper (Third) Quartile:
|
| | | | 3.71x | | | | | $ | 162 | | | | | $ | 236 | | | | | |
| | |
Return on IC
Pre-$ Initial Public Offering Equity Value/Capital Raised |
| |
Observed
Value - Median Estimated Invested Capital ($44) |
| |
Observed
Value - Average Estimated Invested Capital ($64) |
| |||||||||
Lower (First) Quartile:
|
| | | | 2.33x | | | | | $ | 102 | | | | | $ | 148 | | |
Median:
|
| | | | 3.30x | | | | | $ | 144 | | | | | $ | 210 | | |
Average:
|
| | | | 4.62x | | | | | $ | 201 | | | | | $ | 293 | | |
Upper (Third) Quartile:
|
| | | | 4.23x | | | | | $ | 184 | | | | | $ | 269 | | |
| | |
Pre-$ Initial
Public Offering Equity Value/Capital Raised |
| |||
Lower (First) Quartile:
|
| | | $ | 309 | | |
Median:
|
| | | $ | 518 | | |
Average:
|
| | | $ | 471 | | |
Upper (Third) Quartile:
|
| | | $ | 552 | | |
| | |
Current
Market Cap |
| |||
Lower (First) Quartile:
|
| | | $ | 66 | | |
Median:
|
| | | $ | 136 | | |
Average:
|
| | | $ | 274 | | |
Upper (Third) Quartile:
|
| | | $ | 343 | | |
Target Company
|
| |
Most Recent Deal
Date |
| |
Development
Stage at Deal Date |
| |
Deal
Type |
| |
Pre-
money Valuation |
| |
Post-money
Valuation |
| |||||||||||||||
Electra Therapeutics
|
| | | | Feb-2022 | | | | | | ClinicalTrials – Phase 1 | | | | | | EarlyStageVC | | | | | $ | 250 | | | | | $ | 334 | | |
Q32 Bio
|
| | | | Oct-2020 | | | | | | ClinicalTrials – Phase 1 | | | | | | LaterStageVC | | | | | $ | 72 | | | | | | 132 | | |
| | |
No Redemption Scenario
|
| |
50% Redemption Scenario
|
| |
Maximum Redemption Scenario
|
| |||||||||||||||||||||||||||
| | |
Shares
|
| |
%
|
| |
Shares
|
| |
%
|
| |
Shares
|
| |
%
|
| ||||||||||||||||||
JATT Public Shareholders(1)
|
| | | | 13,800,000 | | | | | | 35.5% | | | | | | 6,900,000 | | | | | | 21.6% | | | | | | — | | | | | | —% | | |
JATT Initial Shareholders(2)
|
| | | | 3,450,000 | | | | | | 8.9% | | | | | | 3,450,000 | | | | | | 10.8% | | | | | | 3,450,000 | | | | | | 13.0% | | |
PIPE Investor(3)
|
| | | | 2,000,000 | | | | | | 5.1% | | | | | | 2,000,000 | | | | | | 6.3% | | | | | | 2,000,000 | | | | | | 7.5% | | |
FPA Investors(4)
|
| | | | 3,000,000 | | | | | | 7.8% | | | | | | 3,000,000 | | | | | | 9.4% | | | | | | 4,500,000 | | | | | | 16.9% | | |
Eli Lilly(5)
|
| | | | 550,000 | | | | | | 1.4% | | | | | | 550,000 | | | | | | 1.7% | | | | | | 550,000 | | | | | | 2.1% | | |
Zura Holdco Shareholders(6)
|
| | | | 16,057,000 | | | | | | 41.3% | | | | | | 16,057,000 | | | | | | 50.2% | | | | | | 16,057,000 | | | | | | 60.5% | | |
Amit Munshi(7)
|
| | | | — | | | | | | 0 | | | | | | — | | | | | | 0 | | | | | | — | | | | | | 0 | | |
Total Shares at the Closing(8)
|
| | |
|
38,857,000
|
| | | |
|
100%
|
| | | |
|
31,957,000
|
| | | |
|
100%
|
| | | |
|
26,557,000
|
| | | |
|
100%
|
| |
Total Equity Value Post-Redemption(9)
|
| | | $ | 392,455,700 | | | | | | | | | | | $ | 322,765,700 | | | | | | | | | | | $ | 268,225,700 | | | | | | | | |
Assumed Per Share Value
|
| | | $ | 10.10 | | | | | | | | | | | $ | 10.10 | | | | | | | | | | | $ | 10.10 | | | | | | | | |
| | |
No redemptions(1)
|
| |
50% Redemptions(2)
|
| |
100% Redemptions(3)
|
| |||||||||||||||||||||||||||
| | |
Shares
|
| |
%(4)
|
| |
Shares
|
| |
%(4)
|
| |
Shares
|
| |
%(4)
|
| ||||||||||||||||||
JATT Public Shareholders
|
| | | | 13,800,000 | | | | | | 26.3% | | | | | | 6,900,000 | | | | | | 15.2% | | | | | | — | | | | | | 0 | | |
JATT Initial Shareholders
|
| | | | 3,450,000 | | | | | | 6.6% | | | | | | 3,450,000 | | | | | | 7.6% | | | | | | 3,450,000 | | | | | | 8.6% | | |
PIPE Investor
|
| | | | 2,000,000 | | | | | | 3.8% | | | | | | 2,000,000 | | | | | | 4.4% | | | | | | 2,000,000 | | | | | | 5.0% | | |
FPA Investors
|
| | | | 3,000,000 | | | | | | 5.7% | | | | | | 3,000,000 | | | | | | 6.6% | | | | | | 4,500,000 | | | | | | 11.2% | | |
Eli Lilly
|
| | | | 550,000 | | | | | | 1% | | | | | | 550,000 | | | | | | 1.2% | | | | | | 550,000 | | | | | | 1.4% | | |
Zura Holdco Shareholders
|
| | | | 16,057,000 | | | | | | 30.6% | | | | | | 16,057,000 | | | | | | 35.3% | | | | | | 16,057,000 | | | | | | 40.0% | | |
Amit Munshi(5)
|
| | | | — | | | | | | 0 | | | | | | — | | | | | | 0 | | | | | | — | | | | | | 0 | | |
Exercising Redeemable Public Warrants(6)
|
| | | | 6,900,000 | | | | | | 13.2% | | | | | | 6,900,000 | | | | | | 15.2% | | | | | | 6,900,000 | | | | | | 17.2% | | |
Exercising JATT Private Placement Warrants(7)
|
| | | | 5,910,000 | | | | | | 11.3% | | | | | | 5,910,000 | | | | | | 13.0% | | | | | | 5,910,000 | | | | | | 14.7% | | |
Exercising Lender Warrants(8)
|
| | | | 300,000 | | | | | | 0.6% | | | | | | 300,000 | | | | | | 0.7% | | | | | | 300,000 | | | | | | 0.7% | | |
Exercising Holdco Options(9)
|
| | | | 443,000 | | | | | | 0.8% | | | | | | 443,000 | | | | | | 1.0% | | | | | | 443,000 | | | | | | 1.1% | | |
Total Additional Dilution Sources
|
| | | | 13,553,000 | | | | | | 25.9% | | | | | | 13,553,000 | | | | | | 29.8% | | | | | | 13,553,000 | | | | | | 33.8% | | |
Total Fully-Diluted Shares
|
| | | | 52,410,000 | | | | | | 100% | | | | | | 45,510,000 | | | | | | 100% | | | | | | 40,110,000 | | | | | | 100% | | |
| | |
No
Redemptions |
| |
50%
Redemptions |
| |
100%
Redemptions |
| |||||||||
Public Ordinary Shares plus PIPE Investor and FPA Investors Shares
|
| | | | 18,800,000(1) | | | | | | 11,900,000(2) | | | | | | 6,500,000(3) | | |
Deferred underwriting commission
|
| | | $ | 4,010,000 | | | | | $ | 4,010,000 | | | | | $ | 4,010,000 | | |
Deferred underwriting commission in shares (at $10 per
share) |
| | | | 401,000 | | | | | | 401,000 | | | | | | 401,000 | | |
Deferred underwriting commissions as a percentage of
post-redemption shares |
| | | | 2.1% | | | | | | 3.4% | | | | | | 6.2% | | |
(i)
|
(a)
|
hold JATT Class A Ordinary Shares, or |
Advisory Governing Documents
Proposal |
| |
JATT’s Existing MAA
|
| |
Proposed MAA
|
|
Advisory Proposal A — Number of Directors
|
| | Pursuant to the Existing MAA, there shall be a board of directors consisting of not less than one person; provided, however, that JATT may, by ordinary resolution, increase or reduce the limits in the number of directors. | | | The Proposed MAA provides that subject to the rights of any holders of preferred share to appoint directors, the number of directors that shall constitute the New JATT board shall be as determined from time to time exclusively by the New JATT board. | |
Advisory Proposal B — Required Vote for the Removal of Directors
|
| | The Existing MAA provides that holders of JATT Class B ordinary shares may, by ordinary resolution, remove any director. A director may be removed if all of the other directors (being not less than two in number) determine that he should be removed as a director, either by a resolution passed by all of the other directors at a meeting of the directors duly convened and held in accordance with the Existing MAA or by a resolution in writing signed by all of the other directors. | | | The Proposed MAA provides that directors may be removed for cause or by the affirmative vote of the holders of at least two-thirds (662∕3%) of the voting power of all then-outstanding shares of New JATT entitled to vote thereon, voting together as a single class. | |
Advisory Proposal C — Required Vote to Amend the Proposed MAA
|
| | The Existing MAA provides that as regards to matters to be dealt with by ordinary resolution, | | | The Proposed MAA provides that the affirmative vote of the holders of at least two-thirds | |
Advisory Governing Documents
Proposal |
| |
JATT’s Existing MAA
|
| |
Proposed MAA
|
|
| | | JATT may, by special resolution, alter or add to JATT’s existing amended and restated articles of association. | | | (662∕3% ) of the voting power of the outstanding shares entitled to vote thereon, voting together as a single class, shall be required in order for the shareholders of New JATT to alter, amend or repeal, in whole or in part, any provision of the Proposed MAA or to adopt any provision inconsistent therewith. | |
Advisory Proposal D — Shareholder Action by Written Consent; Eliminate Blank Check Status Provisions
|
| | The Existing MAA permits the shareholders to approve resolutions by way of unanimous written resolution. | | | The Proposed MAA provides that any action required or permitted to be taken by the shareholders of New JATT must be effected by a duly called annual or extraordinary general meeting of such shareholders. Further, the specific provisions in the Existing MAA pertaining to blank check status are eliminated. | |
Name and Position
|
| |
Dollar
Value ($)(1) |
| |
Number of
Restricted Stock Units |
| |
Number of
Stock Options |
| |||||||||
Amit Munshi, Non-Employee Executive Chairman
|
| | | $ | 5,810,000 | | | | | | 500,000(2) | | | | | | 270,000(3)(4) | | |
All current executive officers as a group
|
| | | | 0 | | | | | | 0 | | | | | | 0 | | |
All current directors who are not executive officers as a group
|
| | | $ | 5,810,000 | | | | | | 500,000(2) | | | | | | 270,000(3)(4) | | |
All employees, including current officers who are not executive officers
|
| | | | 0 | | | | | | 0 | | | | | | 0 | | |
| | |
Pro Forma Combined
(Assuming No Redemptions) |
| |
Pro Forma Combined
(Assuming Maximum Redemptions) |
| ||||||
| | |
(in thousands, except share and per share data)
|
| |||||||||
Selected Unaudited Pro Forma Condensed Combined | | | | | | | | | | | | | |
Statement of Operations – Nine Months Ended September 30, 2022 | | | | | | | | | | | | | |
Total expenses
|
| | | $ | 11,842 | | | | | $ | 11,842 | | |
Operating loss
|
| | | | (11,842) | | | | | | (11,842) | | |
Net loss
|
| | | $ | (9,924) | | | | | $ | (9,924) | | |
Basic and diluted net loss per share
|
| | | $ | (0.26) | | | | | $ | (0.37) | | |
Basic and diluted weighted average shares outstanding
|
| | | | 38,857,000 | | | | | | 26,557,000 | | |
Selected Unaudited Pro Forma Condensed Combined | | | | | | | | | | | | | |
Statement of Operations – Period Ended March 31, 2022 | | | | | | | | | | | | | |
Total expenses
|
| | | $ | 29,786 | | | | | $ | 29,786 | | |
Operating loss
|
| | | | (29,786) | | | | | | (29,786) | | |
Net loss attributable to common shareholders
|
| | | $ | (26,418) | | | | | $ | (26,418) | | |
Basic and diluted net loss per share
|
| | | $ | (0.68) | | | | | $ | (0.99) | | |
Basic and diluted weighted average shares outstanding
|
| | | | 38,857,000 | | | | | | 26,557,000 | | |
Selected Unaudited Pro Forma Condensed Combined | | | | | | | | | | | | | |
Balance Sheet Data as of September 30, 2022 | | | | | | | | | | | | | |
Total assets
|
| | | $ | 173,840 | | | | | $ | 48,557 | | |
Total liabilities
|
| | | $ | 2,575 | | | | | $ | 2,575 | | |
Temporary equity
|
| | | $ | 17,500 | | | | | $ | 17,500 | | |
Total shareholders’ equity attributable to Parent
|
| | | $ | 154,855 | | | | | $ | 29,572 | | |
Non-controlling interest
|
| | | $ | (1,090) | | | | | $ | (1,090) | | |
Total shareholders’ equity
|
| | | $ | 153,765 | | | | | $ | 28,482 | | |
| | |
Assuming No Redemptions
|
| |
Assuming Maximum Redemptions
|
| ||||||||||||||||||
| | |
Shares
|
| |
%
|
| |
Number
|
| |
%
|
| ||||||||||||
JATT Public shareholders
|
| | | | 13,800,000 | | | | | | 35.5% | | | | | | — | | | | | | 0.0% | | |
JATT shares issued – Lilly license
|
| | | | 550,000 | | | | | | 1.4% | | | | | | 550,000 | | | | | | 2.1% | | |
Redemption Backstop
|
| | | | — | | | | | | 0.0% | | | | | | 1,500,000 | | | | | | 5.6% | | |
JATT Founders
|
| | | | 3,450,000 | | | | | | 8.9% | | | | | | 3,450,000 | | | | | | 13.0% | | |
PIPE
|
| | | | 2,000,000 | | | | | | 5.0% | | | | | | 2,000,000 | | | | | | 7.5% | | |
Forward Purchase Agreement
|
| | | | 3,000,000 | | | | | | 7.7% | | | | | | 3,000,000 | | | | | | 11.3% | | |
Zura Equityholders
|
| | | | 16,057,000 | | | | | | 41.3% | | | | | | 16,057,000 | | | | | | 60.5% | | |
Shares outstanding
|
| | | | 38,857,000 | | | | | | 100.0% | | | | | | 26,557,000 | | | | | | 100.0% | | |
| | |
For the
Period From January 18, 2022 (Inception) Through March 31, 2022 |
| |
Transaction
Accounting Adjustments (Note 2) |
| | | | | | | |
For the
Period From January 18, 2022 (Inception) Through March 31, 2022 |
| |
For the
Period From March 10, 2021 (Inception) Through December 31, 2021 |
| |
Transaction
Accounting Adjustments (Assuming No Redemptions) (Note 2) |
| | | | |
For the
Period From January 18, 2022 (Inception) Through March 31, 2022 |
| |
Additional
Transaction Accounting Adjustments (Assuming Maximum Redemptions) (Note 2) |
| |
For the
Period From January 18, 2022 (Inception) Through March 31, 2022 |
| ||||||||||||||||||||||||
| | |
Zura
(Historical) |
| | | | | | | |
Pro Forma
Zura |
| |
JATT
(Historical) |
| | | | |
Pro Forma
Combined (Assuming No Redemptions) |
| |
Pro Forma
Combined (Assuming Maximum Redemptions) |
| |||||||||||||||||||||||||||||||||
Expenses | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
General and administrative
|
| | | $ | 319 | | | | | $ | 5,089 | | | | |
|
(aa)
|
| | | | $ | 5,408 | | | | | $ | 720 | | | | | $ | 3,490 | | | |
(dd)
|
| | | $ | 9,618 | | | | | $ | — | | | | | $ | 9,618 | | |
Research and development — license acquired
|
| | | | 7,500 | | | | | | 12,500 | | | | |
|
(aa)
|
| | | | | 20,000 | | | | | | — | | | | | | — | | | | | | | | | 20,000 | | | | | | — | | | | | | 20,000 | | |
General and administrative — related party
|
| | | | — | | | | | | — | | | | | | | | | | | | — | | | | | | 168 | | | | | | — | | | | | | | | | 168 | | | | | | — | | | | | | 168 | | |
Total expenses
|
| | | | 7,819 | | | | | | 17,589 | | | | | | | | | | | | 25,408 | | | | | | 888 | | | | | | 3,490 | | | | | | | | | 29,786 | | | | | | — | | | | | | 29,786 | | |
Operating loss
|
| | | | (7,819) | | | | | | (17,589) | | | | | | | | | | | | (25,408) | | | | | | (888) | | | | | | (3,490) | | | | | | | | | (29,786) | | | | | | — | | | | | | (29,786) | | |
Other income (expense) | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
Loss upon issuance of private placement
warrants |
| | | | — | | | | | | — | | | | | | | | | | | | — | | | | | | (1,773) | | | | | | — | | | | | | | | | (1,773) | | | | | | — | | | | | | (1,773) | | |
Offering costs associated with derivative warrant liabilities
|
| | | | — | | | | | | — | | | | | | | | | | | | — | | | | | | (747) | | | | | | — | | | | | | | | | (747) | | | | | | — | | | | | | (747) | | |
Change in fair value of derivative warrant
liabilities |
| | | | — | | | | | | — | | | | | | | | | | | | — | | | | | | 10,238 | | | | | | (5,451) | | | |
(ee)
|
| | | | 4,787 | | | | | | — | | | | | | 4,787 | | |
Investment income on Trust Account
|
| | | | — | | | | | | — | | | | | | | | | | | | — | | | | | | 19 | | | | | | (19) | | | |
(ff)
|
| | | | — | | | | | | — | | | | | | — | | |
Interest expense
|
| | | | | | | | | | (400) | | | | | | (bb) | | | | | | (400) | | | | | | — | | | | | | — | | | | | | | | | (400) | | | | | | — | | | | | | (400) | | |
Total other income (expense)
|
| | | | — | | | | | | (400) | | | | | | | | | | | | (400) | | | | | | 7,737 | | | | | | (5,470) | | | | | | | | | 1,867 | | | | | | — | | | | | | 1,867 | | |
Net loss before non-controlling interest
|
| | | | (7,819) | | | | | | (17,989) | | | | | | | | | | | | (25,808) | | | | | | 6,849 | | | | | | (8,960) | | | | | | | | | (27,919) | | | | | | — | | | | | | (27,919) | | |
Non-controlling interest
|
| | | | — | | | | | | 1,923 | | | | | | | | | | | | 1,923 | | | | | | — | | | | | | — | | | | | | | | | 1,923 | | | | | | — | | | | | | 1,923 | | |
Net loss
|
| | | $ | (7,819) | | | | | $ | (16,066) | | | | | | | | | | | $ | (23,885) | | | | | $ | 6,849 | | | | | $ | (8,960) | | | | | | | | $ | (25,996) | | | | | $ | — | | | | | $ | (25,996) | | |
Adjustment to Zura subsidiary’s preferred
stock to redemption value |
| | | | — | | | | | | (422) | | | | |
|
(cc)
|
| | | | | (422) | | | | | | — | | | | | | — | | | | | | | | | (422) | | | | | | — | | | | | | (422) | | |
Net loss attributable to common
shareholders |
| | | $ | (7,819) | | | | | $ | (16,488) | | | | | | | | | | | $ | (24,307) | | | | | $ | 6,849 | | | | | $ | (8,960) | | | | | | | | $ | (26,418) | | | | | $ | — | | | | | $ | (26,418) | | |
Weighted average Class A ordinary shares
outstanding, basic and diluted |
| | | | | | | | | | | | | | | | | | | | | | | | | | | | 7,834,343 | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
Basic net income (loss) per Class A ordinary share
|
| | | | | | | | | | | | | | | | | | | | | | | | | | | $ | 0.62 | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
Diluted net income (loss) per Class A ordinary share
|
| | | | | | | | | | | | | | | | | | | | | | | | | | | $ | 0.61 | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
Weighted average Class B ordinary shares
outstanding, basic |
| | | | | | | | | | | | | | | | | | | | | | | | | | | | 3,130,303 | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
Weighted average Class B ordinary shares
outstanding, diluted |
| | | | | | | | | | | | | | | | | | | | | | | | | | | | 3,310,606 | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
Basic net income per Class B ordinary share
|
| | | | | | | | | | | | | | | | | | | | | | | | | | | $ | 0.62 | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
Diluted net income per Class B ordinary
share |
| | | | | | | | | | | | | | | | | | | | | | | | | | | $ | 0.61 | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
Basic and diluted net loss per ordinary share
|
| | | $ | (7,818,712.00) | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
Basic and diluted weighted average ordinary shares outstanding
|
| | | | 1 | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
Basic and diluted net loss per common share
|
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | $ | (0.68) | | | | | | | | | | | $ | (0.99) | | |
Basic and diluted weighted average common
shares outstanding |
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | 38,857,000 | | | | | | | | | | | | 26,557,000 | | |
| | |
Nine Months
Ended September 30, 2022 |
| |
Nine Months
Ended September 30, 2022 |
| |
Transaction
Accounting Adjustments (Assuming No Redemptions) (Note 2) |
| | | | |
Nine Months
Ended September 30, 2022 |
| |
Additional
Transaction Accounting Adjustments (Assuming Maximum Redemptions) (Note 2) |
| |
Nine Months
Ended September 30, 2022 |
| ||||||||||||||||||
| | |
Zura
(Historical) |
| |
JATT
(Historical) |
| | | | |
Pro Forma
Combined (Assuming No Redemptions) |
| |
Pro Forma
Combined (Assuming Maximum Redemptions) |
| ||||||||||||||||||||||||
Expenses | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
General and administrative
|
| | | $ | 1,814 | | | | | $ | 1,688 | | | | | $ | — | | | | | | | | $ | 3,502 | | | | | $ | — | | | | | $ | 3,502 | | |
Research and development — license acquired
|
| | | | 7,500 | | | | | | — | | | | | | — | | | | | | | | | 7,500 | | | | | | — | | | | | | 7,500 | | |
Research and development
|
| | | | 500 | | | | | | — | | | | | | — | | | | | | | | | 500 | | | | | | — | | | | | | 500 | | |
General and administrative — related party
|
| | | | — | | | | | | 340 | | | | | | — | | | | | | | | | 340 | | | | | | — | | | | | | 340 | | |
Total expenses
|
| | | | 9,814 | | | | | | 2,028 | | | | | | — | | | | | | | | | 11,842 | | | | | | — | | | | | | 11,842 | | |
Operating loss
|
| | | | (9,814) | | | | | | (2,028) | | | | | | — | | | | | | | | | (11,842) | | | | | | — | | | | | | (11,842) | | |
Other income (expense) | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
Other
|
| | | | (32) | | | | | | — | | | | | | — | | | | | | | | | (32) | | | | | | — | | | | | | (32) | | |
Offering costs associated with derivative warrant liabilities
|
| | | | — | | | | | | — | | | | | | — | | | | | | | | | — | | | | | | — | | | | | | — | | |
Change in fair value of derivative warrant liabilities
|
| | | | — | | | | | | 4,020 | | | | | | (2,070) | | | |
(ee)
|
| | | | 1,950 | | | | | | — | | | | | | 1,950 | | |
Investment income on Trust Account
|
| | | | — | | | | | | 885 | | | | | | (885) | | | |
(ff)
|
| | | | — | | | | | | — | | | | | | — | | |
Total other income (expense)
|
| | | | (32) | | | | | | 4,905 | | | | | | (2,955) | | | | | | | | | 1,918 | | | | | | — | | | | | | 1,918 | | |
Net loss
|
| | | $ | (9,846) | | | | | $ | 2,877 | | | | | $ | (2,955) | | | | | | | | $ | (9,924) | | | | | $ | — | | | | | $ | (9,924) | | |
Weighted average Class A ordinary shares outstanding, basic and diluted
|
| | | | | | | | | | 13,800,000 | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
Basic and diluted net income (loss) per Class A ordinary share
|
| | | | | | | | | $ | 0.17 | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
Weighted average Class B ordinary shares outstanding, basic and diluted
|
| | | | | | | | | | 3,450,000 | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
Basic and diluted net income per Class B ordinary share
|
| | | | | | | | | $ | 0.17 | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
Basic and diluted net loss per ordinary share
|
| | | $ | (6,205.28) | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
Basic and diluted weighted average ordinary
shares outstanding |
| | | $ | 1,587 | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
Basic and diluted net loss per share
|
| | | | | | | | | | | | | | | | | | | | | | | | $ | (0.26) | | | | | | | | | | | $ | (0.37) | | |
Basic and diluted weighted average shares outstanding
|
| | | | | | | | | | | | | | | | | | | | | | | | | 38,857,000 | | | | | | | | | | | | 26,557,000 | | |
| | |
Public
|
| |
Private
|
| |
Total
|
| |||||||||
IPO, fair value
|
| | | $ | 8,625,000 | | | | | $ | 7,683,000 | | | | | $ | 16,308,000 | | |
Change in fair value
|
| | | $ | (5,451,000) | | | | | $ | (4,787,000) | | | | | $ | (10,238,000) | | |
December 31, 2021, fair value
|
| | | $ | 3,174,000 | | | | | $ | 2,896,000 | | | | | $ | 6,070,000 | | |
Change in fair value
|
| | | $ | (2,070,000) | | | | | $ | (1,950,400) | | | | | $ | (4,020,400) | | |
September 30, 2022, fair value
|
| | | $ | 1,104,000 | | | | | $ | 945,600 | | | | | $ | 2,049,600 | | |
| | |
Assuming No
Redemptions |
| |
Assuming Maximum
Redemptions |
| ||||||
Nine Months Ended September 30, 2022 | | | | | | | | | | | | | |
Pro forma net loss
|
| | | $ | (9,924,000) | | | | | $ | (9,924,000) | | |
Pro forma weighted average shares outstanding – basic and
diluted |
| | | | 38,857,000 | | | | | | 26,557,000 | | |
Net loss per share – basic and diluted
|
| | | $ | (0.26) | | | | | $ | (0.37) | | |
Period Ended March 31, 2022 | | | | | | | | | | | | | |
Pro forma net loss attributable to common shareholders
|
| | | $ | (26,418,000) | | | | | $ | (26,418,000) | | |
Pro forma weighted average shares outstanding – basic and
diluted |
| | | | 38,857,000 | | | | | | 26,557,000 | | |
Net loss per share – basic and diluted
|
| | | $ | (0.68) | | | | | $ | (0.99) | | |
Pro Forma Weighted Average Shares | | | | | | | | | | | | | |
JATT Public shareholders
|
| | | | 13,800,000 | | | | | | — | | |
JATT shares issued – Lilly license
|
| | | | 550,000 | | | | | | 550,000 | | |
Redemption Backstop
|
| | | | — | | | | | | 1,500,000 | | |
JATT Founders
|
| | | | 3,450,000 | | | | | | 3,450,000 | | |
PIPE
|
| | | | 2,000,000 | | | | | | 2,000,000 | | |
Forward Purchase Agreement
|
| | | | 3,000,000 | | | | | | 3,000,000 | | |
Zura Equityholders
|
| | | | 16,057,000 | | | | | | 16,057,000 | | |
Pro forma weighted average shares outstanding, basic and diluted
|
| | | | 38,857,000 | | | | | | 26,557,000 | | |
AE, MedDRA version 19.1 preferred term
|
| |
ZB-168
1 mg/kg Q2W (n= 8) |
| |
ZB-168
3 mg/kg Q2W (n= 9) |
| |
ZB-168
8 mg/kg Q2W (n= 8) |
| |
ZB-168
6 mg/kg Q1wk (n= 5) |
| |
Placebo
(n= 7) |
|
Headache
|
| |
2 (25.0)
|
| |
2 (22.2)
|
| |
3 (37.5)
|
| |
—
|
| |
—
|
|
Hypoglycemia
|
| |
1 (12.5)
|
| |
1(11.1)
|
| |
—
|
| |
1 (20.0)
|
| |
2 (28 .6)
|
|
Fatigue
|
| |
1 (12.5)
|
| |
—
|
| |
1 (12.5)
|
| |
—
|
| |
2 (28 .6)
|
|
Lymphocytes decreased
|
| |
1 (12.5)
|
| |
—
|
| |
1 (12.5)
|
| |
2 (40.0)
|
| |
—
|
|
Nasopharyngitis
|
| |
—
|
| |
—
|
| |
2 (25 .0)
|
| |
1 (20.0)
|
| |
1 (14.3)
|
|
Nausea
|
| |
1 (12.5)
|
| |
2 (22.2)
|
| |
—
|
| |
1 (20.0)
|
| |
—
|
|
Cough
|
| |
1 (12.5)
|
| |
—
|
| |
1 (12.5)
|
| |
1 (20.0)
|
| |
—
|
|
Diarrhea
|
| |
—
|
| |
—
|
| |
1 (12.5)
|
| |
1 (20.0)
|
| |
1 (14.3)
|
|
Injection site erythema
|
| |
—
|
| |
—
|
| |
1 (12.5)
|
| |
1 (20.0)
|
| |
1 (14.3)
|
|
Injection site pain
|
| |
—
|
| |
—
|
| |
1 (12.5)
|
| |
1 (20.0)
|
| |
1 (14.3)
|
|
Lymphadenopathy
|
| |
1 (12.5)
|
| |
—
|
| |
1 (12 .5)
|
| |
1 (20.0)
|
| |
—
|
|
Oropharyngeal pain
|
| |
1 (12.5)
|
| |
—
|
| |
1 (12.5)
|
| |
1 (20.0)
|
| |
—
|
|
WBC decreased
|
| |
1 (12.5)
|
| |
—
|
| |
—
|
| |
1 (20.0)
|
| |
1 (14.3)
|
|
Abdominal distension
|
| |
—
|
| |
1 (11.1)
|
| |
—
|
| |
—
|
| |
1 (14.3)
|
|
Hyperhidrosis
|
| |
1 (12.5)
|
| |
—
|
| |
—
|
| |
—
|
| |
1 (14.3)
|
|
Injection site bruising
|
| |
—
|
| |
1 (11.1)
|
| |
—
|
| |
1 (20.0)
|
| |
—
|
|
Injection site pruritus
|
| |
—
|
| |
—
|
| |
1 (12.5)
|
| |
—
|
| |
1 (14.3)
|
|
Lethargy
|
| |
—
|
| |
1 (11.1)
|
| |
—
|
| |
1 (20.0)
|
| |
—
|
|
Neutrophils decreased
|
| |
—
|
| |
—
|
| |
—
|
| |
1 (20.0)
|
| |
1 (14.3)
|
|
Rash
|
| |
1 (12.5)
|
| |
—
|
| |
—
|
| |
—
|
| |
1 (14.3)
|
|
Vomiting
|
| |
—
|
| |
1 (11.1)
|
| |
—
|
| |
—
|
| |
1 (14.3)
|
|
Jurisdiction
|
| |
Status
|
| |
Number
|
| |
Expiration Date
|
|
Canada | | |
Granted (active)*
|
| |
3039232
|
| |
24-Oct-37
|
|
Europe: France, Germany, Ireland, Italy, Spain, UK
|
| |
Granted (active)*
|
| |
3532499
|
| |
24-Oct-37
|
|
Japan | | |
Granted (active)*
|
| |
6830533
|
| |
24-Oct-37
|
|
US | | |
Granted (active)*
|
| |
10501536
|
| |
24-Oct-37
|
|
US | | |
Granted (active)*
|
| |
10913793
|
| |
25-Oct-39
|
|
PCT | | | | | |
WO2018/081075
|
| | | |
Jurisdiction
|
| |
Status
|
|
Canada | | |
Granted (active)*
|
|
Europe: France, Germany, Ireland, Italy, Spain, UK
|
| |
Granted (active)*
|
|
Japan | | |
Granted (active)*
|
|
Japan | | |
Granted (active)*
|
|
US | | |
Granted (active)*
|
|
US | | |
Granted (active)*
|
|
US | | |
Granted (active)*
|
|
US | | |
Granted (active)*
|
|
PCT | | | Phase Ended | |
Name
|
| |
Age
|
| |
Position
|
|
Someit Sidhu, MD | | |
33
|
| | Chairman and Chief Executive Officer | |
Tauhid Ali, PhD, | | |
54
|
| | Chief Operating Officer and Director | |
Verender S. Badial | | |
49
|
| | Chief Financial Officer | |
Arnout Ploos van Amstel | | |
58
|
| | Director | |
Javier Cote-Sierra, PhD | | |
59
|
| | Director | |
Graeme Sloan | | |
58
|
| | Director | |
Yuan-Hua Ding, PhD | | | | | | Advisor | |
Name
|
| |
Age
|
| |
Position(s)
|
|
Executive Officers | | | | | | | |
Someit Sidhu | | | 33 | | | Chief Executive Officer and Director | |
Javier Cote-Sierra | | | 58 | | | Chief Scientific Officer | |
Non-employee Directors | | | | | | | |
Amit Munshi | | | 53 | | | Non-Employee Executive Chairman | |
Sandeep Kulkarni | | | 41 | | | Director | |
Arnout Ploos van Amstel | | | 58 | | | Director | |
[Other non-employee directors to be added.] | | | | | | | |
| | |
Pre-Business
Combination(2) |
| |
Post-Business Combination
|
| ||||||||||||||||||||||||||||||||||||||||||
| | |
Number of Shares
|
| |
Assuming
No Redemption(3) |
| |
Assuming
50% Interim Redemption(4) |
| |
Assuming
Maximum Redemption(5) |
| ||||||||||||||||||||||||||||||||||||
Name and Address of Beneficial Owner(1)
|
| |
Number
of Shares |
| |
% of
Class |
| |
Number
of Shares |
| |
% of
Class |
| |
Number
of Shares |
| |
% of
Class |
| |
Number
of Shares |
| |
% of
Class |
| ||||||||||||||||||||||||
Directors and executive officers of JATT prior to the Business Combination
|
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
Someit Sidhu(6)
|
| | | | 3,255,000 | | | | | | 18.9% | | | | | | 3,255,000% | | | | | | 8.4% | | | | | | 3,255,000 | | | | | | 10.2% | | | | | | 3,255,000 | | | | | | 12.3% | | |
Verender S. Badial
|
| | | | 30,000 | | | | | | * | | | | | | 30,000 | | | | | | * | | | | | | 30,000 | | | | | | * | | | | | | 30,000 | | | | | | * | | |
Tauhid Ali, PhD
|
| | | | 30,000 | | | | | | * | | | | | | 30,000 | | | | | | * | | | | | | 30,000 | | | | | | * | | | | | | 30,000 | | | | | | * | | |
Javier Cote-Sierra, PhD
|
| | | | 20,000 | | | | | | * | | | | | | 20,000 | | | | | | * | | | | | | 20,000 | | | | | | * | | | | | | 20,000 | | | | | | * | | |
Arnout Ploos van Amstel
|
| | | | 20,000 | | | | | | * | | | | | | 20,000 | | | | | | * | | | | | | 20,000 | | | | | | * | | | | | | 20,000 | | | | | | * | | |
Graeme Sloan
|
| | | | 20,000 | | | | | | * | | | | | | 20,000 | | | | | | * | | | | | | 20,000 | | | | | | * | | | | | | 20,000 | | | | | | * | | |
All directors and executive officers of JATT
prior to the Business Combination as a group (6 individuals) |
| | | | 3,375,000(7) | | | | | | 19.6% | | | | | | 3,375,000 | | | | | | 8.7% | | | | | | 3,375,000 | | | | | | 10.6% | | | | | | 3,375,000 | | | | | | 12.8% | | |
Directors and executive officers of New JATT
after consummation of the Business Combination |
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
Someit Sidhu(6)
|
| | | | 3,255,000 | | | | | | 18.9% | | | | | | 3,255,000 | | | | | | 8.4% | | | | | | 3,255,000 | | | | | | 10.2% | | | | | | 3,255,000 | | | | | | 12.3% | | |
Oliver Levy
|
| | | | — | | | | | | — | | | | | | 399,712 | | | | | | 1.0% | | | | | | 399,712 | | | | | | 1.3% | | | | | | 399,712 | | | | | | 1.5% | | |
Javier Cote-Sierra
|
| | | | 20,000 | | | | | | * | | | | | | 20,000 | | | | | | * | | | | | | 20,000 | | | | | | * | | | | | | 20,000 | | | | | | * | | |
Sandeep Kulkarni(8)
|
| | | | — | | | | | | — | | | | | | 66,697 | | | | | | * | | | | | | 66,697 | | | | | | * | | | | | | 66,697 | | | | | | * | | |
| | |
Pre-Business
Combination(2) |
| |
Post-Business Combination
|
| ||||||||||||||||||||||||||||||||||||||||||
| | |
Number of Shares
|
| |
Assuming
No Redemption(3) |
| |
Assuming
50% Interim Redemption(4) |
| |
Assuming
Maximum Redemption(5) |
| ||||||||||||||||||||||||||||||||||||
Name and Address of Beneficial Owner(1)
|
| |
Number
of Shares |
| |
% of
Class |
| |
Number
of Shares |
| |
% of
Class |
| |
Number
of Shares |
| |
% of
Class |
| |
Number
of Shares |
| |
% of
Class |
| ||||||||||||||||||||||||
Amit Munshi(9)
|
| | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | |
Arnout Ploos van Amstel
|
| | | | 20,000 | | | | | | * | | | | | | 20,000 | | | | | | * | | | | | | 20,000 | | | | | | * | | | | | | 20,000 | | | | | | * | | |
All directors and executive officers following
the Business Combination as a group (7 individuals) |
| | | | 3,295,000 | | | | | | 19.1% | | | | | | 3,761,409 | | | | | | 9.7% | | | | | | 3,761,409 | | | | | | 11.8% | | | | | | 3,761,409 | | | | | | 14.2% | | |
Five Percent Holders: | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
JATT Ventures, L.P.
|
| | | | 3,255,000 | | | | | | 18.9% | | | | | | 3,255,000 | | | | | | 8.4% | | | | | | 3,255,000 | | | | | | 10.2% | | | | | | 3,255,000 | | | | | | 12.3% | | |
Athanor Capital LP(10)
|
| | | | 2,388,000 | | | | | | 13.8% | | | | | | 2,388,000 | | | | | | 6.2% | | | | | | 4,194,000 | | | | | | 13.2% | | | | | | 4,500,000 | | | | | | 17.0% | | |
Magnetar Financial LLC(11)
|
| | | | 1,184,336 | | | | | | 6.9% | | | | | | 1,184,336 | | | | | | 3.1% | | | | | | 592,168 | | | | | | 1.9% | | | | | | — | | | | | | * | | |
Hudson Bay Capital Management LP(12)
|
| | | | 1,188,000 | | | | | | 6.9% | | | | | | 1,188,000 | | | | | | 3.1% | | | | | | 594,000 | | | | | | 1.9% | | | | | | — | | | | | | * | | |
Hana Immunotherapeutics LLC(13)
|
| | | | — | | | | | | — | | | | | | 12,491,135 | | | | | | 32.2% | | | | | | 12,491,135 | | | | | | 39.2% | | | | | | 12,491,135 | | | | | | 47.2% | | |
Pfizer Inc.(14)
|
| | | | — | | | | | | — | | | | | | 3,122,753 | | | | | | 8.1% | | | | | | 3,122,753 | | | | | | 9.8% | | | | | | 3,122,753 | | | | | | 11.8% | | |
Ewon Comfortech Co., Ltd.(15)
|
| | | | — | | | | | | — | | | | | | 2,000,000 | | | | | | 5.2% | | | | | | 2,000,000 | | | | | | 6.3% | | | | | | 2,000,000 | | | | | | 7.6% | | |
|
Current Governance
|
| |
Proposed Governance
|
|
|
Name Change
|
| |||
| JATT’s current name is JATT Acquisition Corp. | | | Upon Closing, JATT’s name will be Zura Bio Limited. | |
|
Authorized Share Capital
|
| |||
| The Existing MAA provides that the authorized share capital of JATT is US$22,100 divided into 200,000,000 Class A Ordinary Shares of a par value of US$0.0001 each, 20,000,000 Class B Ordinary Shares of a par value of US$0.0001 each and 1,000,000 preference shares of a par value of US$0.0001 each. | | | Under the Proposed MAA, the authorized share capital of New JATT is US$[•] divided into [•] New JATT Class A Ordinary Shares of a par value of US$0.0001 each, [•] New JATT Class B Ordinary Shares of a par value of US$0.0001 each and [•] New JATT preference shares of a par value of US$0.0001 each. | |
|
Structure of the Board
|
| |||
| Pursuant to the Existing MAA, there shall be a board of directors consisting of not less than one person; provided, however, that JATT may, by ordinary resolution of the holders of JATT Class B Ordinary Shares, increase or reduce the limits in the number of directors. | | | Under the Proposed MAA, there shall be a board of directors and, subject to the rights of any holders of preference shares to appoint directors, the number of directors that shall constitute the board of directors shall be as determined from time to time exclusively by the then-existing board of directors by the vote of a majority of the remaining directors then in office, although less than a quorum (as defined in the Proposed MAA), or by the sole remaining director. | |
|
Election and removal of Directors
|
| |||
| Pursuant to the Existing MAA, prior to the consummation of a business combination, the holders of the Class B Ordinary Shares may by ordinary resolution appoint any person to be a director or remove any director. Prior to the consummation of a business combination, holders of Class A Ordinary Shares have no right to vote on the appointment or removal of any director. | | | Under the Proposed MAA, the shareholders may by ordinary resolution appoint any person to be a director. However, a director may only be removed for cause or by the affirmative vote of at least two-thirds (662∕3%) of the voting power of all then-outstanding shares of New JATT entitled to vote thereon, voting together as a single class. | |
| | |
Page
|
| |||
| | | | F-2 | | | |
| | | | F-3 | | | |
| | | | F-4 | | | |
| | | | F-5 | | | |
| | | | F-6 | | | |
| | | | F-7 | | | |
Financial Statements | | | | | | | |
| | | | F-22 | | | |
| | | | F-23 | | | |
| | | | F-24 | | | |
| | | | F-25 | | | |
| | | | F-26 | | |
| | | | | F-47 | | | |
| | | | | F-48 | | | |
| | | | | F-49 | | | |
| | | | | F-50 | | | |
| | | | | F-51 | | | |
| | | | | F-52 | | |
| | | | | F-59 | | | |
| | | | | F-60 | | | |
| | | | | F-61 | | | |
| | | | | F-62 | | | |
| | | | | F-63 | | |
| Assets | | | | | | | |
| Current assets: | | | | | | | |
|
Cash
|
| | | $ | 729,223 | | |
|
Prepaid expenses
|
| | | | 422,894 | | |
|
Total current assets
|
| | | | 1,152,117 | | |
|
Investments held in Trust Account
|
| | | | 139,399,054 | | |
|
Total Assets
|
| | | $ | 140,551,171 | | |
|
Liabilities, Class A Ordinary Shares Subject to Possible Redemption and Shareholders’ Deficit
|
| | | | | | |
| Current liabilities: | | | | | | | |
|
Accounts payable
|
| | | $ | 69,855 | | |
|
Accrued expenses
|
| | | | 199,565 | | |
|
Due to related party
|
| | | | 2,872 | | |
|
Total current liabilities
|
| | | | 272,292 | | |
|
Deferred underwriting commissions
|
| | | | 4,010,000 | | |
|
Derivative warrant liabilities
|
| | | | 6,069,900 | | |
|
Total Liabilities
|
| | | | 10,352,192 | | |
| Commitments and Contingencies (Note 5) | | | | | | | |
|
Class A ordinary shares subject to possible redemption; 13,800,000 shares subject to possible redemption at $10.10 per share
|
| | | | 139,380,000 | | |
| Shareholders’ Deficit: | | | | | | | |
|
Preference shares, $0.0001 par value; 1,000,000 shares authorized; none issued or outstanding
|
| | | | — | | |
|
Class A ordinary shares, $0.0001 par value; 200,000,000 shares authorized; no non-redeemable shares issued or outstanding
|
| | | | — | | |
|
Class B ordinary shares, $0.0001 par value; 20,000,000 shares authorized; 3,450,000 shares issued and outstanding
|
| | | | 345 | | |
|
Accumulated deficit
|
| | | | (9,181,366) | | |
|
Total shareholders’ deficit
|
| | | | (9,181,021) | | |
|
Total Liabilities, Class A Ordinary Shares Subject to Possible Redemption and Shareholders’
Deficit |
| | | $ | 140,551,171 | | |
|
General and administrative expenses
|
| | | $ | 720,696 | | |
|
General and administrative expenses – related party
|
| | | | 167,849 | | |
|
Loss from operations
|
| | | | (888,545) | | |
| Other income (expenses): | | | | | | | |
|
Loss upon issuance of private placement warrants
|
| | | | (1,773,000) | | |
|
Income from investments held in Trust Account
|
| | | | 19,054 | | |
|
Change in fair value of derivative warrant liabilities
|
| | | | 10,238,100 | | |
|
Interest earned
|
| | | | 51 | | |
|
Offering costs associated with derivative warrant liabilities
|
| | | | (747,015) | | |
|
Total other income (expenses)
|
| | | | 7,737,190 | | |
|
Net Income
|
| | | $ | 6,848,645 | | |
|
Weighted average number of shares of Class A ordinary shares – basic and diluted
|
| | |
|
7,834,343
|
| |
|
Basic net income per share, Class A ordinary shares
|
| | | $ | 0.62 | | |
|
Diluted net income per share, Class A ordinary shares
|
| | | $ | 0.61 | | |
|
Weighted average number of shares of Class B ordinary shares – basic
|
| | |
|
3,130,303
|
| |
|
Weighted average number of shares of Class B ordinary shares – diluted
|
| | |
|
3,310,606
|
| |
|
Basic net income per share, Class B ordinary shares
|
| | | $ | 0.62 | | |
|
Diluted net income per share, Class B ordinary shares
|
| | | $ | 0.61 | | |
| | |
Ordinary Shares
|
| |
Additional
Paid-in Capital |
| |
Accumulated
Deficit |
| |
Total
Shareholders’ Deficit |
| ||||||||||||||||||||||||||||||
| | |
Class A
|
| |
Class B
|
| ||||||||||||||||||||||||||||||||||||
| | |
Shares
|
| |
Amount
|
| |
Shares
|
| |
Amount
|
| ||||||||||||||||||||||||||||||
Balance – March 10, 2021 (inception)
|
| | | | — | | | | | $ | — | | | | | | — | | | | | $ | — | | | | | $ | — | | | | | $ | — | | | | | $ | — | | |
Issuance of Class B ordinary shares to Sponsor
|
| | | | — | | | | | | — | | | | | | 3,450,000 | | | | | | 345 | | | | | | 24,655 | | | | | | — | | | | | | 25,000 | | |
Deemed capital contribution by from Sponsor
|
| | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | 4,738,051 | | | | | | — | | | | | | 4,738,051 | | |
Fair value adjustment to Class A ordinary shares subject to redemption
|
| | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | (4,762,706) | | | | | | (16,030,011) | | | | | | (20,792,717) | | |
Net income
|
| | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | 6,848,645 | | | | | | 6,848,645 | | |
Balance – December 31, 2021
|
| | | | — | | | | | $ | — | | | | | | 3,450,000 | | | | | $ | 345 | | | | | $ | — | | | | | $ | (9,181,366) | | | | | $ | (9,181,021) | | |
| Cash Flows from Operating Activities: | | | | | | | |
|
Net income
|
| | | | 6,848,645 | | |
| Adjustments to reconcile net income to net cash used in operating activities: | | | | | | | |
|
Change in fair value of derivative warrant liabilities
|
| | | | (10,238,100) | | |
|
Income on investments held in the Trust Account
|
| | | | (19,054) | | |
|
Offering costs associated with warrants
|
| | | | 747,015 | | |
|
Loss upon issuance of private placement warrants
|
| | | | 1,773,000 | | |
|
General and administrative expenses paid by related parties
|
| | | | 25,950 | | |
| Changes in operating assets and liabilities: | | | | | | | |
|
Prepaid expenses
|
| | | | (422,894) | | |
|
Due to related party
|
| | | | 2,872 | | |
|
Accounts payable
|
| | | | 69,855 | | |
|
Accrued expenses
|
| | | | 114,565 | | |
|
Net cash used in operating activities
|
| | | | (1,098,146) | | |
| Cash Flows from Investing Activities | | | | | | | |
|
Cash deposited in Trust Account
|
| | | | (139,380,000) | | |
|
Net cash used in investing activities
|
| | | | (139,380,000) | | |
| Cash Flows from Financing Activities: | | | | | | | |
|
Proceeds from issuance of Class B ordinary shares to Sponsor
|
| | | | 25,000 | | |
|
Repayment of loan to related party
|
| | | | (117,381) | | |
|
Proceeds received from initial public offering, gross
|
| | | | 138,000,000 | | |
|
Proceeds received from private placement
|
| | | | 5,910,000 | | |
|
Reimbursement from underwriter
|
| | | | 480,000 | | |
|
Offering costs paid
|
| | | | (3,090,250) | | |
|
Net cash provided by financing activities
|
| | | | 141,207,369 | | |
|
Net change in cash
|
| | | | 729,223 | | |
|
Cash – beginning of the period
|
| | |
|
—
|
| |
|
Cash – end of the period
|
| | | | 729,223 | | |
| Supplemental disclosure of non-cash investing and financing activities: | | | | | | | |
|
Offering costs included in accrued expenses
|
| | | | 85,000 | | |
|
Offering costs paid by related party under promissory note
|
| | | | 91,431 | | |
|
Deferred underwriting commissions
|
| | | | 4,010,000 | | |
|
Fair value adjustment to Class A ordinary shares subject to redemption
|
| | | | 20,792,717 | | |
| | |
For The Period From March 10, 2021
(Inception) through December 31, 2021 |
| |||||||||
| | |
Class A
|
| |
Class B
|
| ||||||
Basic and diluted net income per ordinary share: | | | | | | | | | | | | | |
Numerator: | | | | | | | | | | | | | |
Allocation of net income (loss) – basic
|
| | | $ | 4,893,422 | | | | | $ | 1,955,233 | | |
Allocation of net income (loss) – diluted
|
| | | | 4,814,256 | | | | | | 2,034,389 | | |
Denominator: | | | | | | | | | | | | | |
Basic and diluted weighted average ordinary shares outstanding
|
| | | | 7,834,343 | | | | | | 3,130,303 | | |
Diluted weighted average ordinary shares outstanding
|
| | | | 7,834,343 | | | | | | 3,310,606 | | |
Basic net income per ordinary share
|
| | | $ | 0.62 | | | | | $ | 0.62 | | |
Diluted net income per ordinary share
|
| | | $ | 0.61 | | | | | $ | 0.61 | | |
|
Gross proceeds
|
| | | $ | 138,000,000 | | |
| Less: | | | | | | | |
|
Proceeds allocated to Public Warrants
|
| | | | (8,625,000) | | |
|
Class A ordinary share issuance costs, net of reimbursement from underwriter
|
| | | | (10,787,717) | | |
| Plus: | | | | | | | |
|
Fair value adjustment of carrying value of Class A ordinary shares to redemption
value |
| | | | 20,792,717 | | |
|
Class A ordinary shares subject to possible redemption
|
| | | $ | 139,380,000 | | |
Description
|
| |
Quoted Prices in Active
Markets (Level 1) |
| |
Significant Other
Observable Inputs (Level 2) |
| |
Significant Other
Unobservable Inputs (Level 3) |
| |||||||||
Assets: | | | | | | | | | | | | | | | | | | | |
Investments held in Trust Account – U.S. Treasury Securities
|
| | | $ | 139,399,054 | | | | | $ | — | | | | | $ | — | | |
Liabilities: | | | | | | | | | | | | | | | | | | | |
Derivative warrant liabilities – Public Warrants
|
| | | $ | 3,174,000 | | | | | $ | — | | | | | $ | — | | |
Derivative warrant liabilities – Private Warrants
|
| | | $ | — | | | | | $ | — | | | | | $ | 2,895,900 | | |
| | | |
At initial issuance
|
| |
As of December 31, 2021
|
|
|
Exercise price
|
| |
$ 11.50
|
| |
$11.50
|
|
|
Stock price
|
| |
$9.34
|
| |
$9.87
|
|
|
Volatility
|
| |
23.0%
|
| |
9.5%
|
|
|
Term (years)
|
| |
5
|
| |
0.54
|
|
|
Risk-free rate
|
| |
0.07% – 1.10%
|
| |
1.43%
|
|
|
Probability of completing business combination
|
| |
95.0%
|
| |
95.0%
|
|
|
Dividend yield
|
| |
0.0%
|
| |
0.0%
|
|
|
Derivative warrant liabilities at March 10, 2021
|
| | | $ | — | | |
|
Issuance of Public and Private Warrants – Level 3 – July 2021
|
| | | | 16,308,000 | | |
|
Transfer of Public Warrants to Level 1 measurement
|
| | | | (8,625,000) | | |
|
Change in fair value of derivative warrant liabilities
|
| | | | (4,787,100) | | |
|
Derivative warrant liabilities at December 31, 2021 – Level 3
|
| | | $ | 2,895,900 | | |
| | |
September 30, 2022
|
| |
December 31, 2021
|
| ||||||
| | |
(unaudited)
|
| | | | | | | |||
Assets | | | | ||||||||||
Current assets: | | | | | | | | | | | | | |
Cash
|
| | | $ | 74,453 | | | | | $ | 729,223 | | |
Prepaid expenses
|
| | | | 122,202 | | | | | | 422,894 | | |
Total current assets
|
| | | | 196,655 | | | | | | 1,152,117 | | |
Investments held in Trust Account
|
| | | | 140,283,110 | | | | | | 139,399,054 | | |
Total Assets
|
| | | $ | 140,479,765 | | | | | $ | 140,551,171 | | |
Liabilities, Class A Ordinary Shares Subject to Possible Redemption and
Shareholders’ Deficit |
| | | | | | | | | | | | |
Current liabilities: | | | | | | | | | | | | | |
Accounts payable
|
| | | $ | 159,240 | | | | | $ | 69,855 | | |
Accounts payable – related party
|
| | | | 48,893 | | | | | | 2,872 | | |
Accrued expenses
|
| | | | 836,165 | | | | | | 199,565 | | |
Note Payable – related party
|
| | | | 299,981 | | | | | | — | | |
Total current liabilities
|
| | | | 1,344,279 | | | | | | 272,292 | | |
Deferred underwriting commissions
|
| | | | 4,010,000 | | | | | | 4,010,000 | | |
Derivative warrant liabilities
|
| | | | 2,049,600 | | | | | | 6,069,900 | | |
Total Liabilities
|
| | | | 7,403,879 | | | | | | 10,352,192 | | |
Commitments and Contingencies | | | | | | | | | | | | | |
Class A ordinary shares subject to possible redemption; 13,800,000
shares subject to possible redemption at $10.16 and $10.10 per share as of September 30, 2022 and December 31, 2021, respectively |
| | | | 140,183,110 | | | | | | 139,380,000 | | |
Shareholders’ Deficit: | | | | | | | | | | | | | |
Preference shares, $0.0001 par value; 1,000,000 shares authorized;
none issued or outstanding at September 30, 2022 and December 31, 2021 |
| | | | — | | | | | | — | | |
Class A ordinary shares, $0.0001 par value; 200,000,000 shares authorized; no non-redeemable shares issued or outstanding at September 30, 2022 and December 31, 2021
|
| | | | — | | | | | | — | | |
Class B ordinary shares, $0.0001 par value; 20,000,000 shares authorized; 3,450,000 shares issued and outstanding at September 30, 2022 and December 31, 2022
|
| | | | 345 | | | | | | 345 | | |
Accumulated deficit
|
| | | | (7,107,569) | | | | | | (9,181,366) | | |
Total shareholders’ deficit
|
| | | | (7,107,224) | | | | | | (9,181,021) | | |
Total Liabilities, Class A Ordinary Shares Subject to Possible Redemption and Shareholders’ Deficit
|
| | | $ | 140,479,765 | | | | | $ | 140,551,171 | | |
| | |
Three Months
Ended September 30, 2022 |
| |
Three Months
Ended September 30, 2021 |
| |
For the Nine Months
Ended September 30, 2022 |
| |
For the Period from
March 10, 2021 (inception) through September 30, 2021 |
| ||||||||||||
General and administrative expenses
|
| | | $ | 491,890 | | | | | $ | 242,013 | | | | | $ | 1,688,021 | | | | | $ | 294,193 | | |
General and administrative expenses –
related party |
| | | | 51,708 | | | | | | 79,850 | | | | | | 339,708 | | | | | | 79,850 | | |
Loss from operations
|
| | | | (543,598) | | | | | | (321,863) | | | | | | (2,027,729) | | | | | | (374,043) | | |
Other income (expenses): | | | | | | | | | | | | | | | | | | | | | | | | | |
Loss upon issuance of private placements warrants
|
| | | | — | | | | | | (1,773,000) | | | | | | — | | | | | | (1,773,000) | | |
Income from investments held in Trust Account
|
| | | | 686,544 | | | | | | 6,919 | | | | | | 884,056 | | | | | | 6,919 | | |
Change in fair value of derivative warrant liabilities
|
| | | | 315,300 | | | | | | 8,622,000 | | | | | | 4,020,300 | | | | | | 8,622,000 | | |
Interest income on operating account
|
| | | | 224 | | | | | | 29 | | | | | | 280 | | | | | | 29 | | |
Offering costs associated with derivative
warrant liabilities |
| | | | — | | | | | | (747,015) | | | | | | — | | | | | | (747,015) | | |
Total other income
|
| | | | 1,002,068 | | | | | | 6,108,933 | | | | | | 4,904,636 | | | | | | 6,108,933 | | |
Net Income
|
| | | $ | 458,470 | | | | | $ | 5,787,070 | | | | | $ | 2,876,907 | | | | | $ | 5,734,890 | | |
Weighted average number of shares of Class A ordinary shares – basic and diluted
|
| | |
|
13,800,000
|
| | | |
|
11,491,304
|
| | | |
|
13,800,000
|
| | | |
|
5,157,073
|
| |
Basic net income per share, Class A ordinary shares
|
| | | $ | 0.03 | | | | | $ | 0.39 | | | | | $ | 0.17 | | | | | $ | 0.70 | | |
Diluted net income per share, Class A ordinary shares
|
| | | $ | 0.03 | | | | | $ | 0.39 | | | | | $ | 0.17 | | | | | $ | 0.68 | | |
Weighted average number of shares of Class B ordinary shares – basic and diluted(1)
|
| | |
|
3,450,000
|
| | | |
|
3,361,957
|
| | | |
|
3,450,000
|
| | | |
|
2,986,829
|
| |
Weighted average number of shares of Class B ordinary shares – basic and diluted
|
| | |
|
3,450,000
|
| | | |
|
3,450,000
|
| | | |
|
3,450,000
|
| | | |
|
3,248,049
|
| |
Basic net income per share, Class B ordinary shares
|
| | | $ | 0.03 | | | | | $ | 0.39 | | | | | $ | 0.17 | | | | | $ | 0.70 | | |
Diluted net income per share, Class B ordinary shares
|
| | | $ | 0.03 | | | | | $ | 0.39 | | | | | $ | 0.17 | | | | | $ | 0.68 | | |
| | |
Ordinary Shares
|
| |
Additional
Paid-in Capital |
| |
Accumulated
Deficit |
| |
Total
Shareholders’ Deficit |
| ||||||||||||||||||||||||||||||
| | |
Class A
|
| |
Class B
|
| ||||||||||||||||||||||||||||||||||||
| | |
Shares
|
| |
Amount
|
| |
Shares
|
| |
Amount
|
| ||||||||||||||||||||||||||||||
Balance – December 31, 2021
|
| | | | — | | | | | $ | — | | | | | | 3,450,000 | | | | | $ | 345 | | | | | $ | — | | | | | $ | (9,181,366) | | | | | $ | (9,181,021) | | |
Net income
|
| | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | 147,856 | | | | | | 147,856 | | |
Balance – March 31, 2022
(unaudited) |
| | | | — | | | | | | — | | | | | | 3,450,000 | | | | | | 345 | | | | | | — | | | | | | (9,033,510) | | | | | | (9,033,165) | | |
Increase in redemption value of Class A ordinary shares subject to possible redemption
|
| | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | (116,566) | | | | | | (116,566) | | |
Net income
|
| | |
|
—
|
| | | |
|
—
|
| | | |
|
—
|
| | | |
|
—
|
| | | |
|
—
|
| | | | | 2,270,581 | | | | | | 2,270,581 | | |
Balance – June 30, 2022
(unaudited) |
| | | | — | | | | | | — | | | | | | 3,450,000 | | | | | | 345 | | | | | | — | | | | | | (6,879,495) | | | | | | (6,879,150) | | |
Net income
|
| | |
|
—
|
| | | |
|
—
|
| | | |
|
—
|
| | | |
|
—
|
| | | |
|
—
|
| | | | | 458,470 | | | | | | 458,470 | | |
Increase in redemption value of Class A ordinary shares subject to possible redemption
|
| | |
|
—
|
| | | |
|
—
|
| | | |
|
—
|
| | | |
|
—
|
| | | |
|
—
|
| | | | | (686,544) | | | | | | (686,544) | | |
Balance – September 30, 2022 (unaudited)
|
| | | | — | | | | | $ | — | | | | | | 3,450,000 | | | | | $ | 345 | | | | | $ | — | | | | | $ | (7,107,569) | | | | | $ | (7,107,224) | | |
| | |
Ordinary Shares
|
| |
Additional
Paid-in Capital |
| |
Accumulated
Deficit |
| |
Total
Shareholders’ Deficit |
| ||||||||||||||||||||||||||||||
| | |
Class A
|
| |
Class B
|
| ||||||||||||||||||||||||||||||||||||
| | |
Shares
|
| |
Amount
|
| |
Shares
|
| |
Amount
|
| ||||||||||||||||||||||||||||||
Balance – March 10, 2021 (inception)
|
| | | | — | | | | | $ | — | | | | | | — | | | | | $ | — | | | | | $ | — | | | | | $ | — | | | | | $ | — | | |
Issuance of Class B ordinary shares
to Sponsor(1) |
| | | | — | | | | | | — | | | | | | 3,450,000 | | | | | | 345 | | | | | | 24,655 | | | | | | — | | | | | | 25,000 | | |
Net loss
|
| | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | (33,039) | | | | | | (33,039) | | |
Balance – March 31, 2021 (unaudited)
|
| | | | — | | | | | | — | | | | | | 3,450,000 | | | | | | 345 | | | | | | 24,655 | | | | | | (33,039) | | | | | | (8,039) | | |
Net loss
|
| | |
|
—
|
| | | |
|
—
|
| | | |
|
—
|
| | | |
|
—
|
| | | |
|
—
|
| | | | | (19,141) | | | | | | (19,141) | | |
Balance – June 30, 2021
(unaudited) |
| | | | — | | | | | | — | | | | | | 3,450,000 | | | | | | 345 | | | | | | 24,655 | | | | | | (52,180) | | | | | | (27,180) | | |
Deemed capital contribution by Sponsor (restated)
|
| | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | 4,738,051 | | | | | | — | | | | | | 4,738,051 | | |
Fair value adjustment to Class A ordinary share redemption amount (restated)
|
| | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | (4,762,706) | | | | | | (16,030,011) | | | | | | (20,792,717) | | |
Net income
|
| | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | 5,787,070 | | | | | | 5,787,070 | | |
Balance – September 30, 2021 (unaudited)
|
| | | | — | | | | | $ | — | | | | | | 3,450,000 | | | | | $ | 345 | | | | | $ | — | | | | | $ | (10,295,121) | | | | | $ | (10,294,776) | | |
| | |
For the Nine Months
Ended September 30, 2022 |
| |
For The Period From
March 10, 2021 (Inception) through September 30, 2021 |
| ||||||
Cash Flows from Operating Activities: | | | | | | | | | | | | | |
Net income
|
| | | $ | 2,876,907 | | | | | $ | 5,734,890 | | |
Adjustments to reconcile net income to net cash used in operating activities:
|
| | | | | | | | | | | | |
Change in fair value of derivative warrant liabilities
|
| | | | (4,020,300) | | | | | | (8,622,000) | | |
Income from investments held in the Trust Account
|
| | | | (884,056) | | | | | | (6,919) | | |
Offering costs associated with warrants
|
| | | | — | | | | | | 747,015 | | |
Loss upon issuance of private placement warrants
|
| | | | — | | | | | | 1,773,000 | | |
General and administrative expenses paid by related parties
|
| | | | — | | | | | | 25,950 | | |
Changes in operating assets and liabilities: | | | | | | | | | | | | | |
Prepaid expenses
|
| | | | 300,692 | | | | | | (531,248) | | |
Due form related party
|
| | | | — | | | | | | (9,573) | | |
Accounts payable
|
| | | | 89,385 | | | | | | 29,885 | | |
Accounts payable – related party
|
| | | | 46,021 | | | | | | — | | |
Accrued expenses
|
| | | | 636,600 | | | | | | 18,278 | | |
Net cash used in operating activities
|
| | | | (954,751) | | | | | | (840,722) | | |
Cash Flows from Investing Activities | | | | | | | | | | | | | |
Cash deposited in Trust Account
|
| | | | — | | | | | | (139,380,000) | | |
Net cash used in investing activities
|
| | |
|
—
|
| | | | | (139,380,000) | | |
Cash Flows from Financing Activities: | | | | | | | | | | | | | |
Cash deposited in Trust Account
|
| | | | — | | | | | | 25,000 | | |
Proceeds received from note payable
|
| | | | 299,981 | | | | | | (117,381) | | |
Proceeds from issuance of Clas B ordinary share to Sponsor
|
| | | | — | | | | | | 138,000,000 | | |
Proceeds received from private placement
|
| | | | — | | | | | | 5,910,000 | | |
Reimbursement from underwriter
|
| | | | — | | | | | | 480,000 | | |
Offering costs paid
|
| | | | — | | | | | | (3,090,250) | | |
Net cash provided by financing activities
|
| | | | 299,981 | | | | | | 141,207,369 | | |
Net change in cash
|
| | | | (654,770) | | | | | | 986,647 | | |
Cash – beginning of the period
|
| | |
|
729,223
|
| | | |
|
—
|
| |
Cash – end of the period
|
| | | $ | 74,453 | | | | | $ | 986,647 | | |
Supplemental disclosure of non-cash investing and financing activities:
|
| | | | | | | | | | | | |
Offering costs included in accounts payable
|
| | |
|
—
|
| | | | | | | |
Offering costs included in accrued expenses
|
| | | | — | | | | | | 85,000 | | |
Offering costs paid by related party under promissory note
|
| | | | — | | | | | | 91,431 | | |
Deferred underwriting commissions
|
| | | | — | | | | | | 4,010,000 | | |
Increase in redemption value of Class A common stock subject to
possible redemption |
| | | | 803,110 | | | | | | — | | |
Fair value adjustment to Class A ordinary shares subject to possible redemption
|
| | | | — | | | | | | 20,792,717 | | |
| | |
For the Three Months Ended
September 30, 2022 |
| |
For the Nine Months Ended
September 30, 2022 |
| ||||||||||||||||||
| | |
Class A
|
| |
Class B
|
| |
Class A
|
| |
Class B
|
| ||||||||||||
Basic and diluted net income per ordinary share: | | | | | | | | | | | | | | | | | | | | | | | | | |
Numerator: | | | | | | | | | | | | | | | | | | | | | | | | | |
Allocation of net income – basic and diluted
|
| | | $ | 366,776 | | | | | $ | 91,694 | | | | | $ | 2,301,526 | | | | | $ | 575,381 | | |
Denominator: | | | | | | | | | | | | | | | | | | | | | | | | | |
Basic and diluted weighted average ordinary shares outstanding
|
| | | | 13,800,000 | | | | | | 3,450,000 | | | | | | 13,800,000 | | | | | | 3,450,000 | | |
Basic and diluted net income per ordinary share
|
| | | $ | 0.03 | | | | | $ | 0.03 | | | | | $ | 0.17 | | | | | $ | 0.17 | | |
| | |
For the Three Months Ended
September 30, 2021 |
| |
For the Period from March 10, 2021
(inception) through September 30, 2021 |
| ||||||||||||||||||
| | |
Class A
|
| |
Class B
|
| |
Class A
|
| |
Class B
|
| ||||||||||||
Basic and diluted net income per ordinary share:
|
| | | | | | | | | | | | | | | | | | | | | | | | |
Numerator: | | | | | | | | | | | | | | | | | | | | | | | | | |
Allocation of net income – basic
|
| | | $ | 4,477,198 | | | | | $ | 1,309,873 | | | | | $ | 3,631,582 | | | | | $ | 2,103,308 | | |
Allocation of net income – diluted
|
| | | $ | 4,450,815 | | | | | $ | 1,336,255 | | | | | $ | 3,518,717 | | | | | $ | 2,216,173 | | |
Denominator: | | | | | | | | | | | | | | | | | | | | | | | | | |
Basic weighted average ordinary shares outstanding
|
| | | | 11,491,304 | | | | | | 3,361,957 | | | | | | 5,157,073 | | | | | | 2,986,829 | | |
Diluted weighted average ordinary shares outstanding
|
| | | | 11,491,304 | | | | | | 3,450,000 | | | | | | 5,157,073 | | | | | | 3,248,049 | | |
Basic net income per ordinary share
|
| | | $ | 0.39 | | | | | $ | 0.39 | | | | | $ | 0.70 | | | | | $ | 0.70 | | |
Diluted net income per ordinary share
|
| | | $ | 0.39 | | | | | $ | 0.39 | | | | | $ | 0.68 | | | | | $ | 0.68 | | |
|
Gross proceeds
|
| | | $ | 138,000,000 | | |
| Less: | | | | | | | |
|
Proceeds allocated to Public Warrants
|
| | | | (8,625,000) | | |
|
Class A ordinary share issuance costs, net of reimbursement from underwriter
|
| | | | (9,150,115) | | |
| Plus: | | | | | | | |
|
Accretion of carrying value to redemption value
|
| | | | 19,155,115 | | |
|
Class A common stock subject to possible redemption – December 31, 2021
|
| | | | 139,380,000 | | |
|
Increase in redemption value of Class A common stock subject to possible redemption
|
| | | | 803,110 | | |
|
Class A common stock subject to possible redemption – September 30, 2022
|
| | | $ | 140,183,110 | | |
Description
|
| |
Quoted Prices in Active
Markets (Level 1) |
| |
Significant Other
Observable Inputs (Level 2) |
| |
Significant Other
Unobservable Inputs (Level 3) |
| |||||||||
Assets: | | | | | | | | | | | | | | | | | | | |
Investments held in Trust Account – U.S. Treasury
Securities |
| | | $ | 140,283,110 | | | | | $ | — | | | | | $ | — | | |
Liabilities: | | | | | | | | | | | | | | | | | | | |
Derivative warrant liabilities – Public Warrants
|
| | | $ | 1,104,000 | | | | | $ | — | | | | | $ | — | | |
Derivative warrant liabilities – Private Warrants
|
| | | $ | — | | | | | $ | — | | | | | $ | 945,600 | | |
Description
|
| |
Quoted Prices in
Active Markets (Level 1) |
| |
Significant Other
Observable Inputs (Level 2) |
| |
Significant Other
Unobservable Inputs (Level 3) |
| |||||||||
Assets: | | | | | | | | | | | | | | | | | | | |
Investments held in Trust Account – U.S. Treasury Securities
|
| | | $ | 139,399,054 | | | | | $ | — | | | | | $ | — | | |
Liabilities: | | | | | | | | | | | | | | | | | | | |
Derivative warrant liabilities – Public Warrants
|
| | | $ | 3,174,000 | | | | | $ | — | | | | | $ | — | | |
Derivative warrant liabilities – Private Warrants
|
| | | $ | — | | | | | $ | — | | | | | $ | 2,895,900 | | |
| | |
As of September 30,
2022 |
| |
As of December 31,
2021 |
| ||||||
Exercise price
|
| | | $ | 11.50 | | | | | $ | 11.50 | | |
Stock price
|
| | | $ | 10.05 | | | | | $ | 9.87 | | |
Volatility
|
| | | | 1.0% | | | | | | 9.5% | | |
Term (years)
|
| | | | 4.71 | | | | | | 0.54 | | |
Risk-free rate
|
| | | | 4.09% | | | | | | 1.43% | | |
Dividend yield
|
| | | | 0.0% | | | | | | 0.0% | | |
|
Derivative warrant liabilities at December 31, 2021 – Level 3
|
| | | $ | 2,895,900 | | |
|
Change in fair value of derivative warrant liabilities
|
| | | | (336,870) | | |
|
Derivative warrant liabilities at March 31, 2022 – Level 3
|
| | | | 2,559,030 | | |
|
Change in fair value of derivative warrant liabilities
|
| | | | (1,436,130) | | |
|
Derivative warrant liabilities at June 30, 2022 – Level 3
|
| | | | 1,122,900 | | |
|
Change in fair value of derivative warrant liabilities
|
| | | | (177,300) | | |
|
Derivative warrant liabilities at September 30, 2022 – Level 3
|
| | | $ | 945,600 | | |
| | |
March 31,
2022 |
| |||
ASSETS | | | | | | | |
Current assets: | | | | | | | |
Cash and cash equivalents
|
| | | $ | 4,720 | | |
Total current assets
|
| | | | 4,720 | | |
Total assets
|
| | | $ | 4,720 | | |
LIABILITIES, PREFERRED SHARES AND SHAREHOLDERS’ DEFICIT | | | | | | | |
Current liabilities | | | | | | | |
Accounts payable and accrued expenses
|
| | | $ | 39 | | |
Total current liabilities
|
| | | | 39 | | |
Total liabilities
|
| | | | 39 | | |
Commitments and contingencies – Note 6 | | | | | | | |
Convertible preferred shares | | | | | | | |
Series A-1 convertible preferred shares, $0.001 par value per share; 125,000 shares authorized as
of March 31, 2022, 125,000 shares issued and outstanding as of March 31, 2022 |
| | | | 12,500 | | |
Shareholders’ deficit | | | | | | | |
Ordinary Shares, $0.001 par value per share; 1 share authorized as of March 31, 2022; 1 share issued and outstanding as of March 31, 2022
|
| | | | — | | |
Accumulated deficit
|
| | | | (7,819) | | |
Total shareholders’ deficit
|
| | | | (7,819) | | |
Total liabilities, convertible preferred shares and shareholders’ deficit
|
| | | $ | 4,720 | | |
| | |
For the Period from
January 18, 2022 (date of inception) to March 31, 2022 |
| |||
Operating expenses: | | | | | | | |
General and administrative
|
| | | $ | 319 | | |
Research and development – license acquired
|
| | | | 7,500 | | |
Total operating expenses
|
| | | | 7,819 | | |
Loss from operations
|
| | |
|
(7,819)
|
| |
Net loss
|
| | | $ | (7,819) | | |
Net loss per Ordinary Share, basic and diluted
|
| | | $ | (7,818,712) | | |
Weighted average Ordinary Shares outstanding, basic and diluted
|
| | | | 1 | | |
| | |
Convertible
Preferred Shares |
| | |
Ordinary Shares
|
| |
Accumulated
Deficit |
| |
Total
Shareholders’ Deficit |
| ||||||||||||||||||||||||
| | |
Shares
|
| |
Amount
|
| | |
Shares
|
| |
Amount
|
| ||||||||||||||||||||||||
Balance as of January 18, 2022 (date of inception)
|
| | | | — | | | | | $ | — | | | | | | | — | | | | | $ | — | | | | | $ | — | | | | | $ | — | | |
Issuance of Ordinary Share at inception
|
| | | | — | | | | | | — | | | | | | | 1 | | | | | | — | | | | | | — | | | | | | — | | |
Issuance of Series A-1 convertible preferred shares for cash
|
| | | | 100,000 | | | | | | 10,000 | | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | |
Issuance of Series A-1 convertible preferred shares for license
|
| | | | 25,000 | | | | | | 2,500 | | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | |
Net loss
|
| | | | — | | | | | | — | | | | | | | — | | | | | | — | | | | | | (7,819) | | | | | | (7,819) | | |
Balance as of March 31, 2022
|
| | | | 125,000 | | | | | $ | 12,500 | | | | | | | 1 | | | | | $ | — | | | | | $ | (7,819) | | | | | $ | (7,819) | | |
| | |
For the Period from
January 18, 2022 (date of inception) to March 31, 2022 |
| |||
Cash flows from operating activities | | | | | | | |
Net loss
|
| | | $ | (7,819) | | |
Adjustments to reconcile net loss to net cash used in operating activities: | | | | | | | |
Research and development-acquired license, expensed
|
| | | | 7,500 | | |
Changes in operating assets and liabilities:
|
| | | | | | |
Accounts payable
|
| | | | 39 | | |
Net cash used in operating activities
|
| | | | (280) | | |
Cash flows from investing activities
|
| | | | | | |
Purchase of research and development license
|
| | | | (5,000) | | |
Net cash used in investing activities
|
| | | | (5,000) | | |
Cash flows from financing activities
|
| | | | | | |
Proceeds from issuance of Series A-1 convertible preferred shares
|
| | | | 10,000 | | |
Net cash provided by financing activities
|
| | | | 10,000 | | |
Net increase in cash and cash equivalents
|
| | |
|
4,720
|
| |
Cash and cash equivalents at the beginning of the period
|
| | |
|
—
|
| |
Cash and cash equivalents at the end of the period
|
| | | $ | 4,720 | | |
Supplemental disclosure of cash flow information: | | | | | | | |
Cash paid for income taxes
|
| | | $ | — | | |
Cash paid for interest
|
| | | $ | — | | |
Supplemental disclosure of noncash investing and financing activities: | | | | | | | |
Issuance of Series A-1 convertible preferred shares for license
|
| | | $ | 2,500 | | |
| | |
For the Period from
January 18, 2022 (date of inception) to March 31, 2022 |
| |||
Shares issuable upon conversion of Series A-1 convertible preferred shares
|
| | | | 125,000 | | |
Total
|
| | | | 125,000 | | |
| | |
For the Period from
January 18, 2022 (date of inception) to March 31, 2022 |
| |||
Statutory income tax rate
|
| | | | 19.0% | | |
Change in valuation allowance
|
| | | | (19.0)% | | |
Income tax provision (benefit)
|
| | | | 0.0% | | |
| | |
March 31,
2022 |
| |||
Deferred tax assets: | | | | | | | |
Net operating loss carryforward
|
| | | $ | 522 | | |
License
|
| | | | 964 | | |
Total deferred income tax assets
|
| | | | 1,486 | | |
Valuation allowance
|
| | | | (1,486) | | |
Deferred tax assets, net of valuation allowance
|
| | | $ | — | | |
| | |
September 30,
2022 |
| |
March 31,
2022 |
| ||||||
| | |
(Unaudited)
|
| | | | | | | |||
ASSETS | | | | | | | | | | | | | |
Current assets: | | | | | | | | | | | | | |
Cash and cash equivalents
|
| | | $ | 3,049 | | | | | $ | 4,720 | | |
Prepaid expenses and other current assets
|
| | | | 211 | | | | | | — | | |
Total current assets
|
| | | | 3,260 | | | | | | 4,720 | | |
Deferred offering costs
|
| | | | 1,911 | | | | | | — | | |
Total assets
|
| | | $ | 5,171 | | | | | $ | 4,720 | | |
LIABILITIES, PREFERRED SHARES AND SHAREHOLDERS’ DEFICIT | | | | | | | | | | | | | |
Current liabilities | | | | | | | | | | | | | |
Accounts payable and accrued expenses
|
| | | $ | 2,196 | | | | | $ | 39 | | |
Total current liabilities
|
| | | | 2,196 | | | | | | 39 | | |
Total liabilities
|
| | | | 2,196 | | | | | | 39 | | |
Commitments and contingencies – Note 7 | | | | | | | | | | | | | |
Convertible preferred shares | | | | | | | | | | | | | |
Series A-1 convertible preferred shares, $0.001 par value per share; 125,000 shares
authorized as of September 30, 2022 and March 31, 2022, 125,000 shares issued and outstanding as of September 30, 2022 and March 31, 2022 |
| | | | 12,500 | | | | | | 12,500 | | |
Shareholders’ deficit | | | | | | | | | | | | | |
Ordinary Shares, $0.001 par value per share; 17,437 shares and 1 share authorized
as of September 30, 2022 and March 31, 2022, respectively; 3,548 shares and 1 share issued and outstanding as of September 30, 2022 and March 31, 2022, respectively |
| | | | — | | | | | | — | | |
Additional paid-in capital
|
| | | | 321 | | | | | | — | | |
Accumulated deficit
|
| | | | (9,846) | | | | | | (7,819) | | |
Total shareholders’ deficit
|
| | | | (9,525) | | | | | | (7,819) | | |
Total liabilities, convertible preferred shares and shareholders’ deficit
|
| | | $ | 5,171 | | | | | $ | 4,720 | | |
| | |
Three Months
Ended September 30, 2022 |
| |
Six Months
Ended September 30, 2022 |
| ||||||
Operating expenses: | | | | | | | | | | | | | |
General and administrative
|
| | | $ | 653 | | | | | $ | 1,495 | | |
Research and development
|
| | | | 415 | | | | | | 500 | | |
Total operating expenses
|
| | | | 1,068 | | | | | | 1,995 | | |
Loss from operations
|
| | | | (1,068) | | | | | | (1,995) | | |
Other expense
|
| | | | (34) | | | | | | (32) | | |
Net loss
|
| | | $ | (1,102) | | | | | $ | (2,027) | | |
Net loss per Ordinary Share, basic and diluted
|
| | | $ | (310.26) | | | | | $ | (908.48) | | |
Weighted average Ordinary Shares outstanding, basic and diluted
|
| | | | 3,548 | | | | | | 2,230 | | |
| | |
Convertible
Preferred Shares |
| | |
Ordinary
Shares |
| |
Additional
Paid-in Capital |
| |
Accumulated
Deficit |
| |
Total
Shareholders’ Deficit |
| |||||||||||||||||||||||||||
| | |
Shares
|
| |
Amount
|
| | |
Shares
|
| |
Amount
|
| ||||||||||||||||||||||||||||||
Balance as of June 30, 2022
|
| | | | 125,000 | | | | |
$
|
12,500
|
| | | | | | 3,548 | | | | |
$
|
—
|
| | | |
$
|
309
|
| | | |
$
|
(8,744)
|
| | | |
$
|
(8,435)
|
| |
Stock-based compensation expense
|
| | | | — | | | | | | — | | | | | | | — | | | | | | — | | | | | | 12 | | | | | | — | | | | | | 12 | | |
Net loss
|
| | | | — | | | | | | — | | | | | | | — | | | | | | — | | | | | | — | | | | | | (1,102) | | | | | | (1,102) | | |
Balance as of September 30, 2022
|
| | | | 125,000 | | | | | $ | 12,500 | | | | | | | 3,548 | | | | | $ | — | | | | | $ | 321 | | | | | $ | (9,846) | | | | | $ | (9,525) | | |
| | |
Convertible
Preferred Shares |
| | |
Ordinary
Shares |
| |
Additional
Paid-in Capital |
| |
Accumulated
Deficit |
| |
Total
Shareholders’ Deficit |
| |||||||||||||||||||||||||||
| | |
Shares
|
| |
Amount
|
| | |
Shares
|
| |
Amount
|
| ||||||||||||||||||||||||||||||
Balance as of March 31, 2022
|
| | | | 125,000 | | | | |
$
|
12,500
|
| | | | | | 1 | | | | |
$
|
—
|
| | | |
$
|
—
|
| | | |
$
|
(7,819)
|
| | | |
$
|
(7,819)
|
| |
Exercises of stock options
|
| | | | — | | | | | | — | | | | | | | 3,547 | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | |
Stock-based compensation expense
|
| | | | — | | | | | | — | | | | | | | — | | | | | | — | | | | | | 321 | | | | | | — | | | | | | 321 | | |
Net loss
|
| | | | — | | | | | | — | | | | | | | — | | | | | | — | | | | | | — | | | | | | (2,027) | | | | | | (2,027) | | |
Balance as of September 30, 2022
|
| | | | 125,000 | | | | | $ | 12,500 | | | | | | | 3,548 | | | | | $ | — | | | | | $ | 321 | | | | | $ | (9,846) | | | | | $ | (9,525) | | |
| | |
Six Months
Ended September 30, 2022 |
| |||
Cash flows from operating activities | | | | | | | |
Net loss
|
| | | $ | (2,027) | | |
Adjustments to reconcile net loss to net cash used in operating activities: | | | | | | | |
Share-based compensation expense
|
| | | | 321 | | |
Foreign exchange transaction loss
|
| | | | 32 | | |
Changes in operating assets and liabilities:
|
| | | | | | |
Prepaid expenses and other current assets
|
| | | | (211) | | |
Accounts payable and accrued expenses
|
| | | | 598 | | |
Net cash used in operating activities
|
| | | | (1,287) | | |
Cash flows from financing activities | | | | | | | |
Payment of deferred offering costs
|
| | | | (358) | | |
Net cash used in financing activities
|
| | | | (358) | | |
Effect of foreign exchange rates on cash
|
| | | | (26) | | |
Net decrease in cash and cash equivalents
|
| | | | (1,671) | | |
Cash and cash equivalents at the beginning of the period
|
| | | | 4,720 | | |
Cash and cash equivalents at the end of the period
|
| | | $ | 3,049 | | |
Supplemental disclosure of cash flow information: | | | | | | | |
Cash paid for income taxes
|
| | | $ | — | | |
Cash paid for interest
|
| | | $ | — | | |
Supplemental disclosure of noncash investing and financing activities: | | | | | | | |
Unpaid deferred offering costs included in accounts payable and accrued expenses
|
| | | $ | 1,553 | | |
| | |
Three Months Ended
September 30, 2022 |
| |
Six Months Ended
September 30, 2022 |
| ||||||
Shares issuable upon conversion of Series A-1 convertible preferred shares
|
| | | | 125,000 | | | | | | 125,000 | | |
Shares issuable upon exercise of options to purchase ordinary shares
|
| | | | 3,547 | | | | | | 3,547 | | |
Total
|
| | | | 128,547 | | | | | | 128,547 | | |
| | |
September 30,
2022 |
| |
March 31,
2022 |
| ||||||
Accounts payable
|
| | | $ | 1,148 | | | | | $ | 7 | | |
Accrued offering costs
|
| | | | 682 | | | | | | — | | |
Research and development costs
|
| | | | 189 | | | | | | — | | |
Accrued legal costs
|
| | | | 166 | | | | | | 32 | | |
Other accrued expenses
|
| | | | 11 | | | | | | — | | |
Total
|
| | | $ | 2,196 | | | | | $ | 39 | | |
| | |
Number of
Options |
| |
Weighted
Average Exercise Price (per share) |
| |
Weighted
Average Remaining Contractual Life (in years) |
| |
Aggregate
Intrinsic Value (in thousands) |
| ||||||||||||
Outstanding as of April 1, 2022
|
| | | | — | | | | | $ | — | | | | | | — | | | | | $ | — | | |
Granted
|
| | | | 3,547 | | | | | | — | | | | | | 9.7 | | | | | | 295 | | |
Exercised
|
| | | | (3,547) | | | | | | — | | | | | | — | | | | | | 295 | | |
Outstanding as of September 30, 2022
|
| | | | — | | | | | | — | | | | | | — | | | | | | — | | |
Exercisable as of September 30, 2022
|
| | | | — | | | | | $ | — | | | | | | — | | | | | $ | — | | |
|
Risk-free interest rate
|
| | | | 3.0% | | |
|
Expected dividend yield
|
| | | | — | | |
|
Expected term (years)
|
| | | | 5.9 | | |
|
Expected volatility
|
| | | | 95.1% | | |
| | |
Number of
Options |
| |
Weighted
Average Exercise Price (per share) |
| |
Weighted
Average Remaining Contractual Life (in years) |
| |
Aggregate
Intrinsic Value (in thousands) |
| ||||||||||||
Outstanding as of April 1, 2022
|
| | | | — | | | | | $ | — | | | | | | — | | | | | $ | — | | |
Granted
|
| | | | 3,547 | | | | | | 90.50 | | | | | | 9.7 | | | | | | — | | |
Exercised
|
| | | | — | | | | | | — | | | | | | — | | | | | | — | | |
Outstanding as of September 30, 2022
|
| | | | 3,547 | | | | | | 90.50 | | | | | | 9.7 | | | | | | — | | |
Exercisable as of September 30, 2022
|
| | | | 409 | | | | | $ | 90.50 | | | | | | 9.7 | | | | | $ | — | | |
| | | | | A-2 | | | |
| | | | | A-2 | | | |
| | | | | A-15 | | | |
| | | | | A-15 | | | |
| | | | | A-15 | | | |
| | | | | A-15 | | | |
| | | | | A-16 | | | |
| | | | | A-16 | | | |
| | | | | A-16 | | | |
| | | | | A-16 | | | |
| | | | | A-16 | | | |
| | | | | A-16 | | | |
| | | | | A-16 | | | |
| | | | | A-17 | | | |
| | | | | A-17 | | | |
| | | | | A-17 | | | |
| | | | | A-17 | | | |
| | | | | A-18 | | | |
| | | | | A-18 | | | |
| | | | | A-18 | | | |
| | | | | A-18 | | | |
| | | | | A-18 | | | |
| | | | | A-18 | | | |
| | | | | A-20 | | | |
| | | | | A-21 | | | |
| | | | | A-21 | | | |
| | | | | A-21 | | | |
| | | | | A-21 | | | |
| | | | | A-21 | | | |
| | | | | A-22 | | | |
| | | | | A-23 | | | |
| | | | | A-23 | | | |
| | | | | A-23 | | | |
| | | | | A-23 | | | |
| | | | | A-24 | | | |
| | | | | A-26 | | | |
| | | | | A-27 | | | |
| | | | | A-28 | | | |
| | | | | A-28 | | | |
| | | | | A-28 | | | |
| | | | | A-28 | | |
| | | | | A-30 | | | |
| | | | | A-30 | | | |
| | | | | A-31 | | | |
| | | | | A-31 | | | |
| | | | | A-31 | | | |
| | | | | A-32 | | | |
| | | | | A-32 | | | |
| | | | | A-32 | | | |
| | | | | A-32 | | | |
| | | | | A-33 | | | |
| | | | | A-34 | | | |
| | | | | A-34 | | | |
| | | | | A-34 | | | |
| | | | | A-34 | | | |
| | | | | A-35 | | | |
| | | | | A-35 | | | |
| | | | | A-36 | | | |
| | | | | A-36 | | | |
| | | | | A-37 | | | |
| | | | | A-37 | | | |
| | | | | A-37 | | | |
| | | | | A-37 | | | |
| | | | | A-37 | | | |
| | | | | A-37 | | | |
| | | | | A-38 | | | |
| | | | | A-38 | | | |
| | | | | A-38 | | | |
| | | | | A-39 | | | |
| | | | | A-39 | | | |
| | | | | A-40 | | | |
| | | | | A-40 | | | |
| | | | | A-40 | | | |
| | | | | A-40 | | | |
| | | | | A-41 | | | |
| | | | | A-41 | | | |
| | | | | A-41 | | | |
| | | | | A-45 | | | |
| | | | | A-45 | | | |
| | | | | A-45 | | | |
| | | | | A-45 | | | |
| | | | | A-45 | | | |
| | | | | A-45 | | |
| | | | | A-46 | | | |
| | | | | A-46 | | | |
| | | | | A-46 | | | |
| | | | | A-47 | | | |
| | | | | A-50 | | | |
| | | | | A-50 | | | |
| | | | | A-50 | | | |
| | | | | A-51 | | | |
| | | | | A-51 | | | |
| | | | | A-51 | | | |
| | | | | A-52 | | | |
| | | | | A-52 | | | |
| | | | | A-52 | | | |
| | | | | A-52 | | | |
| | | | | A-52 | | | |
| | | | | A-52 | | | |
| | | | | A-53 | | | |
| | | | | A-53 | | | |
| | | | | A-53 | | | |
| | | | | A-54 | | | |
| | | | | A-54 | | | |
| | | | | A-54 | | | |
| | | | | A-54 | | | |
| | | | | A-54 | | | |
| | | | | A-55 | | | |
| | | | | A-55 | | | |
| | | | | A-55 | | | |
| | | | | A-56 | | | |
| | | | | A-56 | | | |
| | | | | A-56 | | | |
| | | | | A-57 | | | |
| | | | | A-57 | | | |
| | | | | A-57 | | | |
| | | | | A-58 | | | |
| | | | | A-58 | | | |
| | | | | A-59 | | | |
| | | |
|
| |
| Notices to ZB Companies | | | with copies to (which shall not constitute notice): | |
|
Zura Bio Limited
3rd Floor 1 Ashley Road Altrincham WA14 2DT Attention: Oliver Levy Email: oliver.levy@zurabio.com |
| |
McDermott Will & Emery, LLP
110 Bishopsgate London EC2N 4AY Attention: Gary Howes Email: ghowes@mwe.com |
|
| Notices to SPAC, Merger Sub and Merger Sub 2: | | | with copies to (which shall not constitute notice): | |
|
JATT Acquisition Corp.
PO Box 309, Ugland House Grand Cayman, Cayman Islands Attention: Verender Badial E-mail: verender.badial@jattacquisition.com |
| |
Loeb & Loeb LLP
345 Park Avenue New York, NY 10154 Attention: Mitchell Nussbaum E-Mail: mnussbaum@loeb.com |
|
Address: |
|
Shareholder
|
| |
Number of
Shares |
| |
Address for Notices
|
|
JATT Ventures, L.P.
|
| |
3,255,000
|
| |
c/o JATT Acquisition Corp,
c/o Maples Corporate Services Limited, PO Box 309, Ugland House, Grand Cayman, KY1-1104, Cayman Islands |
|
Someit Sidhu, MD*
|
| |
3,255,000
|
| |
c/o JATT Acquisition Corp,
c/o Maples Corporate Services Limited, PO Box 309, Ugland House, Grand Cayman, KY1-1104, Cayman Islands |
|
Tauhid Ali, PhD
|
| |
30,000
|
| |
c/o JATT Acquisition Corp,
c/o Maples Corporate Services Limited, PO Box 309, Ugland House, Grand Cayman, KY1-1104, Cayman Islands |
|
Verender S. Badial
|
| |
30,000
|
| |
c/o JATT Acquisition Corp,
c/o Maples Corporate Services Limited, PO Box 309, Ugland House, Grand Cayman, KY1-1104, Cayman Islands |
|
Josh Distler, J.D.
|
| |
75,000
|
| |
c/o JATT Acquisition Corp,
c/o Maples Corporate Services Limited, PO Box 309, Ugland House, Grand Cayman, KY1-1104, Cayman Islands |
|
Arnout Ploos van Amstel
|
| |
20,000
|
| |
c/o JATT Acquisition Corp,
c/o Maples Corporate Services Limited, PO Box 309, Ugland House, Grand Cayman, KY1-1104, Cayman Islands |
|
Javier Cote-Sierra, PhD
|
| |
20,000
|
| |
c/o JATT Acquisition Corp,
c/o Maples Corporate Services Limited, PO Box 309, Ugland House, Grand Cayman, KY1-1104, Cayman Islands |
|
Graeme Sloan
|
| |
20,000
|
| |
c/o JATT Acquisition Corp,
c/o Maples Corporate Services Limited, PO Box 309, Ugland House, Grand Cayman, KY1-1104, Cayman Islands |
|
Shareholder
|
| |
Number of
Ordinary Shares |
| |
Number
of Shares |
| |
Notice Details
|
| ||||||
Hana Immunotherapeutics LLC
|
| | | | 1 | | | | | | 100,000 | | | | chris.kim@hanaimmunotx.com | |
Pfizer Inc.
|
| | | | 0 | | | | | | 25,000 | | | |
Email address: rana.al-hallaq@pfizer.com
Correspondence address: For the attention of
Rana Al-Hallaq, Pfizer Inc., 235 East 42nd Street, New York, NY 10017
With a copy (which shall not constitute
notice) to:
Email address: Brandon.Miller@pfizer.com
Correspondence address: For the attention of
Brandon Miller, Pfizer Inc., 235 East 42nd Street, New York, NY 10017 |
|
Oliver Levy
|
| | | | 3,200 | | | | | | 0 | | | | oliver.levy@zurabio.com | |
David Brady
|
| | | | 347 | | | | | | 0 | | | | david.brady@zurabio.com | |
By: |
|
Date: |
|
|
Exhibit
|
| |
Description
|
|
|
101.PRE
|
| | XBRL Taxonomy Extension Presentation Linkbase Document. | |
|
104
|
| | Cover Page Interactive Data File (formatted as Inline XBRL and contained in Exhibit 101). | |
|
107
|
| | |
| | | | JATT Acquisition Corp | | |||
| | | | By: | | |
/s/ Someit Sidhu
Name: Someit Sidhu
Title: Chairman and Chief Executive Officer |
|
|
Signature
|
| |
Title
|
| |
Date
|
|
|
/s/ Someit Sidhu, MD
Someit Sidhu, MD
|
| |
Chairman and Chief Executive Officer
(Principal Executive Officer) |
| |
January 9, 2023
|
|
|
/s/ Verender S. Badial
Verender S. Badial
|
| |
Chief Financial Officer and Director
(Principal Financial and Accounting Officer) |
| |
January 9, 2023
|
|
|
*
Tauhid Ali, PhD
|
| |
Director
|
| |
January 9, 2023
|
|
|
*
Javier Cote-Sierra, PhD
|
| |
Director
|
| |
January 9, 2023
|
|
|
*
Arnout Ploos van Amstel
|
| |
Director
|
| |
January 9, 2023
|
|
|
*
Graeme Sloan
|
| |
Director
|
| |
January 9, 2023
|
|
|
*By:
/s/ Verender S. Badial
Name: Verender S. Badial
Title: Attorney-in-fact |
| | | | | | |
Exhibit 5.2
VANTAGE POINT ADVISORS, INC.
Take aim.
11455 El Camino Real, Suite 400
San Diego, CA 92130
858.509.7545
www.vpadvisors.com
SAN DIEGO
LOS ANGELES
NEW YORK
PORTLAND
SEATTLE
DALLAS-
FORT WORTH
June 15, 2022
Board of Directors
JATT Acquisition Corp.
Verender S. Badial
Chief Financial Officer
c/o Maples Fiduciary Services (Delaware) Inc.,
4001 Kennett Pike, Suite 302,
Wilmington, DE, 19807
Dear Members of the Board of Directors:
We understand that:
Pursuant to that certain Business Combination Agreement by and among JATT Acquisition Corp (“JATT”), JATT Merger Sub, a Cayman Islands exempted company (the “Merger Sub”), JATT Merger Sub 2, a Cayman Islands exempted company (the “Merger Sub 2”), Zura Bio Limited, a limited company incorporated under the laws of England and Wales (the “Company”), and Zura Bio Holdings Ltd, a Cayman Islands exempted company (the “Holdco”) and other agreements to be executed in connection therewith, the following transactions:
(a) JATT Merger Sub, Holdco and the Company intend to effect a merger of Merger Sub with and into Holdco whereby Holdco will be the surviving company and a wholly owned subsidiary of JATT (the “Merger”);
(b) JATT, Holdco, Merger Sub 2 and the Company intend immediately following the Merger to effect a merger of Holdco with and into Merger Sub 2 whereby Merger Sub 2 will be the surviving company and a wholly owned subsidiary of JATT (the “Subsequent Merger” and, together with the Merger, the “Transaction”),
The Board of Directors of JATT Acquisition Corp. (“you”) have asked us to render an opinion (the “Opinion”) (i) as to the fairness of the Transaction to JATT, from a financial point of view, and (ii) whether the Company has a fair market value equal to at least eight percent (80%) of the balance of funds in JATT’s trust account (excluding deferred underwriting commissions and taxes payable).
This Opinion is furnished solely to be utilized by the Board of Directors as only one input to consider in its process of analyzing the Transaction and it does not constitute a recommendation to any member of the Board of Directors, any stockholder of JATT or any other person as to how such person should vote or act with respect to the Transaction. This Opinion is delivered to the Board of Directors subject to the conditions, scope of engagement, limitations and understanding set forth in this Opinion and subject to the understanding that the obligations of Vantage Point Advisors, Inc. in the Transaction are solely corporate obligations. Furthermore, no officer, director, employee or shareholder of Vantage Point Advisors, Inc. shall be subjected to any personal liability whatsoever to any person, nor will any such claim be asserted by or on behalf of you or your affiliates.
Board of Directors
JATT Acquisition Corp.
Page 2 of 3
We have not been asked to opine on, and this Opinion does not express any views on, (i) any other terms of the Transaction, (ii) JATT’s underlying business decision to effect the Transaction, (iii) the basic business decision to proceed with or effect the Transaction, (iv) the merits of the Transaction relative to any alternative transaction or business strategy that may be available to JATT, (v) the amount or nature of the compensation to any officer, director or employee, or any class of such persons, relative to the compensation to be received by the holders of any class of securities, creditors or other constituencies of JATT or the Company in the Transaction, or relative to or in comparison with the Transaction Consideration, (vi) the fairness of the Transaction to any particular group or class of securities, creditors, or other constituencies of JATT, (vii) the solvency, creditworthiness or fair value of the Company or any other participant in the Transaction under any applicable laws relating to bankruptcy, insolvency or similar matters or (viii) the independent fair value of the Company or the fairness to JATT independent from the Transaction, taken as a whole.
In the course of our analyses for rendering this Opinion, we have made such reviews, analyses, and inquiries as we have deemed necessary and appropriate under the circumstances, including, without limitation:
1) | Reviewing documents and sources of information as we deemed appropriate; |
2) | We met or otherwise communicated electronically with certain members of JATT and the Company’s senior and operating management and other advisors to discuss the Company’s operations, historical financial results, future prospects and projected operations and performance; |
3) | We evaluated the stock price history and reported events of JATT and the Company; |
4) | We considered publicly available data and stock market performance data of public companies we deem comparable to the Company; and |
5) | We conducted such other studies, analyses, inquiries and investigations as we deemed appropriate. |
In the course of our investigation, we have assumed and relied upon the accuracy and completeness of the information provided to us by JATT and the Company and we have further relied upon the assurances of management that they were unaware of any facts that would make the information provided to us incomplete or misleading. We have not assumed any responsibility for independent verification of such information or assurances.
In arriving at our opinion, we have not performed any independent appraisal, or physical inspection, of the assets of the Company. Our analysis does not constitute an examination, review of, or compilation of prospective financial statements in accordance with standards established by the American Institute of Certified Public Accountants (“AICPA”). We do not express an opinion or any other form of assurance on the reasonableness of the underlying assumptions or whether any of the prospective financial statements, if used, are presented in conformity with AICPA presentation guidelines. Further, there will usually be differences between prospective and actual results because events and circumstances frequently do not occur as expected and those differences may be material. We have also assumed that neither JATT nor the Company are currently involved in any material transaction other than the Transaction, and those activities undertaken in the ordinary course of conducting their businesses.
Board of Directors
JATT Acquisition Corp.
Page 3 of 3
Our Opinion is predicated on our assumption that the final executed form of the Agreement will not differ in any material respect from the draft of the Agreement we have examined, that the conditions to the Transaction as set forth in the Agreement will be satisfied, and that the Transaction will be consummated on a timely basis in the manner contemplated by the Agreement. We have further assumed that all other transaction documents listed in this letter will be executed with no material changes from the most recent drafts supplied to, and reviewed by, Vantage Point Advisors, Inc.
Our Opinion is necessarily based on business, economic, market, and other conditions as they exist and can be evaluated by us at the date of this letter. It should be noted that although subsequent developments may affect this Opinion, we do not have any obligation to update, revise, or reaffirm our Opinion. We reserve the right, however, to withdraw, revise, or modify our Opinion based upon additional information that may be provided to or obtained by us after the issuance of the Opinion that suggests, in our judgment, a material change in the assumptions upon which our Opinion is based.
We acknowledge and agree that this Opinion and a summary thereof may be filed with or included in or with any proxy or information statement required to be filed by JATT with the Securities and Exchange Commission and delivered to the holders of JATT’s securities in connection with the Transaction. However, no reference to this Opinion in the proxy or information statement may be made without our written consent and further subject to Vantage Point Advisors’ approval of the language that references this Opinion, which consent shall not be unreasonably withheld, conditioned or delayed.
On the basis of the forgoing, it is our opinion that (i) the Transaction is fair, from a financial point of view, to JATT and (ii) the Company has a fair market value equal to at least eighty percent (80%) of the balance of funds in JATT’s trust account (excluding deferred underwriting commissions and taxes payable).
Very truly yours,
Vantage Point Advisors, Inc.
Exhibit 10.12
ZURA BIO LIMITED
2022 EMPLOYEE SHARE PURCHASE PLAN
1. GENERAL; PURPOSE.
(a) The Plan provides a means by which Eligible Employees of the Company and certain Designated Companies may be given an opportunity to purchase Common Shares. The Plan permits the Company to grant a series of Purchase Rights to Eligible Employees under an “employee stock purchase plan” as such term is defined by Section 423 of the Code. In addition, the Plan permits the Company to grant a series of Purchase Rights to Eligible Employees that do not meet the requirements of an employee stock purchase plan.
(b) The Plan includes two components: a 423 Component and a Non-423 Component. The Company intends (but makes no undertaking or representation to maintain) the 423 Component to qualify as an employee stock purchase plan. The provisions of the 423 Component, accordingly, will be construed in a manner that is consistent with the requirements of Section 423 of the Code. Except as otherwise provided in the Plan or determined by the Board, the Non-423 Component will operate and be administered in the same manner as the 423 Component.
(c) The Company, by means of the Plan, seeks to retain the services of Eligible Employees, to secure and retain the services of new Employees and to provide incentives for such persons to exert maximum efforts for the success of the Company and its Related Corporations.
2. ADMINISTRATION.
(a) The Board or the Committee will administer the Plan. References herein to the Board shall be deemed to refer to the Committee except where context dictates otherwise.
(b) The Board will have the power, subject to, and within the limitations of, the express provisions of the Plan:
(i) To determine how and when Purchase Rights will be granted and the provisions of each Offering (which need not be identical).
(ii) To designate from time to time (A) which Related Corporations will be eligible to participate in the Plan as Designated 423 Corporations, (B) which Related Corporations or Affiliates will be eligible to participate in the Plan as Designated Non-423 Corporations, and (C) which Designated Companies will participate in each separate Offering (to the extent that the Company makes separate Offerings).
(iii) To construe and interpret the Plan and Purchase Rights, and to establish, amend and revoke rules and regulations for its administration. The Board, in the exercise of this power, may correct any defect, omission or inconsistency in the Plan, in a manner and to the extent it deems necessary or expedient to make the Plan fully effective.
(iv) To settle all controversies regarding the Plan and Purchase Rights granted under the Plan.
(v) To suspend or terminate the Plan at any time as provided in Section 12.
(vi) To amend the Plan at any time as provided in Section 12.
(vii) Generally, to exercise such powers and to perform such acts as it deems necessary or expedient to promote the best interests of the Company and its Related Corporations and to carry out the intent that the Plan be treated as an Employee Share Purchase Plan with respect to the 423 Component.
(viii) To adopt such rules, procedures and sub-plans as are necessary or appropriate to permit or facilitate participation in the Plan by Employees who are foreign nationals or employed or located outside the United States. Without limiting the generality of, and consistent with, the foregoing, the Board specifically is authorized to adopt rules, procedures, and sub-plans regarding, without limitation, eligibility to participate in the Plan, the definition of eligible “earnings,” handling and making of Contributions, establishment of bank or trust accounts to hold Contributions, payment of interest, conversion of local currency, obligations to pay payroll tax, determination of designation requirements, withholding procedures and handling of share issuances, any of which may vary according to applicable requirements, and which, if applicable to a Designated Non-423 Corporation, do not have to comply with the requirements of Section 423 of the Code.
(c) The Board may delegate some or all of the administration of the Plan to a Committee or Committees. If administration is delegated to a Committee, the Committee will have, in connection with the administration of the Plan, the powers theretofore possessed by the Board that have been delegated to the Committee, including the power to delegate to a subcommittee any of the administrative powers the Committee is authorized to exercise (and references in this Plan to the Board will thereafter be to the Committee or subcommittee), subject, however, to such resolutions, not inconsistent with the provisions of the Plan, as may be adopted from time to time by the Board. Further, to the extent not prohibited by Applicable Law, the Board or Committee may, from time to time, delegate some or all of its authority under the Plan to one or more officers of the Company or other persons or groups of persons as it deems necessary, appropriate or advisable under conditions or limitations that it may set at or after the time of the delegation. The Board may retain the authority to concurrently administer the Plan with the Committee and may, at any time, revest in the Board some or all of the powers previously delegated. Whether or not the Board has delegated administration of the Plan to a Committee, the Board will have the final power to determine all questions of policy and expediency that may arise in the administration of the Plan.
(d) All determinations, interpretations and constructions made by the Board in good faith will not be subject to review by any person and will be final, binding and conclusive on all persons.
3. COMMON SHARES SUBJECT TO THE PLAN.
(a) Subject to the provisions of Section 11(a) relating to Capitalization Adjustments, the maximum number of Common Shares that may be issued under the Plan will not exceed [·]1 Common Shares, plus the aggregate number of Common Shares that are added under the Zura Bio Limited 2022 Equity Incentive Plan on January 1st of each calendar year beginning on January 1, 2024 and ending on and including January 1, 2029. For the avoidance of doubt, up to the maximum number of Common Shares reserved under this Section 3(a) may be used to satisfy purchases of Common Shares under the 423 Component and any remaining portion of such maximum number of shares may be used to satisfy purchases of Common Shares under the Non-423 Component.
(b) If any Purchase Right granted under the Plan terminates without having been exercised in full, the Common Shares not purchased under such Purchase Right will again become available for issuance under the Plan.
(c) The shares purchasable under the Plan will be authorized but unissued or reacquired Common Shares, including shares repurchased by the Company on the open market.
4. GRANT OF PURCHASE RIGHTS; OFFERING.
(a) The Board may from time to time grant or provide for the grant of Purchase Rights to Eligible Employees under an Offering (consisting of one or more Purchase Periods) on an Offering Date or Offering Dates selected by the Board. Each Offering will be in such form and will contain such terms and conditions as the Board will deem appropriate, and, with respect to the 423 Component, will comply with the requirement of Section 423(b)(5) of the Code that all Employees granted Purchase Rights will have the same rights and privileges. The terms and conditions of an Offering shall be incorporated by reference into the Plan and treated as part of the Plan. The provisions of separate Offerings need not be identical, but each Offering will include (through incorporation of the provisions of this Plan by reference in the document comprising the Offering or otherwise) the period during which the Offering will be effective, which period will not exceed 27 months beginning with the Offering Date, and the substance of the provisions contained in Sections 5 through 8, inclusive.
(b) If a Participant has more than one Purchase Right outstanding under the Plan, unless he or she otherwise indicates in forms delivered to the Company or a third party designated by the Company (each, a “Company Designee”): (i) each form will apply to all of his or her Purchase Rights under the Plan, and (ii) a Purchase Right with a lower exercise price (or an earlier-granted Purchase Right, if different Purchase Rights have identical exercise prices) will be exercised to the fullest possible extent before a Purchase Right with a higher exercise price (or a later-granted Purchase Right if different Purchase Rights have identical exercise prices) will be exercised.
(c) The Board will have the discretion to structure an Offering so that if the Fair Market Value of a Common Share on the first Trading Day of a new Purchase Period within that Offering is less than or equal to the Fair Market Value of a Common Share on the Offering Date for that Offering, then (i) that Offering will terminate immediately as of that first Trading Day, and (ii) the Participants in such terminated Offering will be automatically enrolled in a new Offering beginning on the first Trading Day of such new Purchase Period.
1 | NTD: This number will be 10% of the SPAC Class A Shares (as defined in the BCA) outstanding on a fully diluted basis immediately following the effectiveness of the Merger (as defined in the BCA). |
2
5. ELIGIBILITY.
(a) Purchase Rights may be granted only to Employees of the Company or, as the Board may designate in accordance with Section 2(b), to Employees of a Related Corporation or an Affiliate. Except as provided in Section 5(b) or as required by Applicable Law, an Employee will not be eligible to be granted Purchase Rights unless, on the Offering Date, the Employee has been in the employ of the Company or the Related Corporation or an Affiliate, as the case may be, for such continuous period preceding such Offering Date as the Board may require, but in no event will the required period of continuous employment be equal to or greater than one year. In addition, the Board may (unless prohibited by Applicable Law) provide that no Employee will be eligible to be granted Purchase Rights under the Plan unless, on the Offering Date, such Employee’s customary employment with the Company, the Related Corporation, or the Affiliate is more than 20 hours per week and more than five months per calendar year or such other criteria as the Board may determine consistent with Section 423 of the Code with respect to the 423 Component. The Board may also exclude from participation in the Plan or any Offering Employees who are “highly compensated employees” (within the meaning of Section 423(b)(4)(D) of the Code) of the Company or a Related Corporation or a subset of such highly compensated employees.
(b) The Board may provide that each person who, during the course of an Offering, first becomes an Eligible Employee will, on a date or dates specified in the Offering which coincides with the day on which such person becomes an Eligible Employee or which occurs thereafter, receive a Purchase Right under that Offering, which Purchase Right will thereafter be deemed to be a part of that Offering. Such Purchase Right will have the same characteristics as any Purchase Rights originally granted under that Offering, as described herein, except that:
(i) the date on which such Purchase Right is granted will be the “Offering Date” of such Purchase Right for all purposes, including determination of the exercise price of such Purchase Right;
(ii) the period of the Offering with respect to such Purchase Right will begin on its Offering Date and end coincident with the end of such Offering; and
(iii) the Board may provide that if such person first becomes an Eligible Employee within a specified period of time before the end of the Offering, he or she will not receive any Purchase Right under that Offering.
(c) No Employee will be eligible for the grant of any Purchase Rights under the 423 Component if, immediately after any such Purchase Rights are granted, such Employee owns shares possessing five percent or more of the total combined voting power or value of all classes of shares of the Company or of any Related Corporation. For purposes of this Section 5(c), the rules of Section 424(d) of the Code will apply in determining the share ownership of any Employee, and shares which such Employee may purchase under all outstanding Purchase Rights and options will be treated as shares owned by such Employee.
(d) As specified by Section 423(b)(8) of the Code, an Eligible Employee may be granted Purchase Rights under the 423 Component only if such Purchase Rights, together with any other rights granted under all Employee Share Purchase Plans of the Company and any Related Corporations, do not permit such Eligible Employee’s rights to purchase shares of the Company or any Related Corporation to accrue at a rate which, when aggregated, exceeds US $25,000 of Fair Market Value of such shares (determined at the time such rights are granted, and which, with respect to the Plan, will be determined as of their respective Offering Dates) for each calendar year in which such rights are outstanding at any time.
(e) Officers of the Company and any Designated Company, if they are otherwise Eligible Employees, will be eligible to participate in Offerings under the Plan. Notwithstanding the foregoing, the Board may (unless prohibited by Applicable Law) provide in an Offering that Employees who are highly compensated Employees within the meaning of Section 423(b)(4)(D) of the Code will not be eligible to participate.
(f) Notwithstanding anything in this Section 5 to the contrary, in the case of an Offering under the Non-423 Component, an Eligible Employee (or group of Eligible Employees) may be excluded from participation in the Plan or an Offering if the Board has determined, in its sole discretion, that participation of such Eligible Employee(s) is not advisable or practical for any reason.
3
6. PURCHASE RIGHTS; PURCHASE PRICE.
(a) On each Offering Date, each Eligible Employee, pursuant to an Offering made under the Plan, will be granted a Purchase Right to purchase up to that number of Common Shares purchasable either with a percentage or with a maximum dollar amount, as designated by the Board, but in either case not exceeding [15%] of such Employee’s earnings (as defined by the Board in each Offering) during the period that begins on the Offering Date (or such later date as the Board determines for a particular Offering) and ends on the date stated in the Offering, which date will be no later than the end of the Offering.
(b) The Board will establish one or more Purchase Dates during an Offering on which Purchase Rights granted for that Offering will be exercised and Common Shares will be purchased in accordance with such Offering.
(c) In connection with each Offering made under the Plan, the Board shall specify a maximum number of Common Shares that may be purchased by any Participant on any Purchase Date during such Offering, and may specify (i) a maximum aggregate number of Common Shares that may be purchased by all Participants pursuant to such Offering and/or (ii) a maximum aggregate number of Common Shares that may be purchased by all Participants on any Purchase Date under the Offering. If the aggregate purchase of Common Shares issuable upon exercise of Purchase Rights granted under the Offering would exceed any such maximum aggregate number, then, in the absence of any Board action otherwise, a pro rata (based on each Participant’s accumulated Contributions) allocation of the Common Shares (rounded down to the nearest whole share) available will be made in as nearly a uniform manner as will be practicable and equitable.
(d) The purchase price of Common Shares acquired pursuant to Purchase Rights will be specified by Board prior to the commencement of an Offering and will not be less than the lesser of:
(i) an amount equal to 85% of the Fair Market Value of the Common Shares on the Offering Date; or
(ii) an amount equal to 85% of the Fair Market Value of the Common Shares on the applicable Purchase Date.
7. PARTICIPATION; WITHDRAWAL; TERMINATION.
(a) An Eligible Employee may elect to participate in an Offering and authorize payroll deductions as the means of making Contributions by completing and delivering to the Company or a Company Designee, within the time specified for the Offering, an enrollment form provided by the Company or Company Designee. The enrollment form will specify the amount of Contributions not to exceed the maximum amount specified by the Board. Each Participant’s Contributions will be credited to a bookkeeping account for such Participant under the Plan and will be deposited with the general funds of the Company except where Applicable Law requires that Contributions be deposited with a third party. If permitted in the Offering, a Participant may begin such Contributions with the first payroll occurring on or after the Offering Date (or, in the case of a payroll date that occurs after the end of the prior Offering but before the Offering Date of the next new Offering, Contributions from such payroll will be included in the new Offering). If permitted in the Offering, a Participant may thereafter reduce (including to zero) or increase his or her Contributions. If required under Applicable Law or if specifically provided in the Offering and to extent permitted by Section 423 of the Code with respect to the 423 Component, in addition to or instead of making Contributions by payroll deductions, a Participant may make Contributions through payment by cash, check or wire transfer prior to a Purchase Date.
(b) During an Offering, a Participant may cease making Contributions and withdraw from the Offering by delivering to the Company or a Company Designee a withdrawal form provided by the Company. The Company may impose a deadline before a Purchase Date for withdrawing. Upon such withdrawal, such Participant’s Purchase Right in that Offering will immediately terminate and the Company will distribute as soon as practicable to such Participant all of his or her accumulated but unused Contributions and such Participant’s Purchase Right in that Offering shall thereupon terminate. A Participant’s withdrawal from that Offering will have no effect upon his or her eligibility to participate in any other Offerings under the Plan, but such Participant will be required to deliver a new enrollment form to participate in subsequent Offerings.
(c) Unless otherwise required by Applicable Law, Purchase Rights granted pursuant to any Offering under the Plan will terminate immediately if the Participant either (i) is no longer an Employee for any reason or for no reason (subject to any post-employment participation period required by Applicable Law) or (ii) is otherwise no longer eligible to participate. The Company will distribute as soon as practicable to such individual all of his or her accumulated but unused Contributions.
4
(d) Unless otherwise determined by the Board, a Participant whose employment transfers or whose employment terminates with an immediate rehire (with no break in service) by or between the Company and a Designated Company or between Designated Companies will not be treated as having terminated employment for purposes of participating in the Plan or an Offering; however, if a Participant transfers from an Offering under the 423 Component to an Offering under the Non-423 Component, the exercise of the Participant’s Purchase Right will be qualified under the 423 Component only to the extent such exercise complies with Section 423 of the Code. If a Participant transfers from an Offering under the Non-423 Component to an Offering under the 423 Component, the exercise of the Purchase Right will remain non-qualified under the Non-423 Component. The Board may establish different and additional rules governing transfers between separate Offerings within the 423 Component and between Offerings under the 423 Component and Offerings under the Non-423 Component.
(e) During a Participant’s lifetime, Purchase Rights will be exercisable only by such Participant. Purchase Rights are not transferable by a Participant, except by will, by the laws of descent and distribution, or, if permitted by the Company, by a beneficiary designation as described in Section 10.
(f) Unless otherwise specified in the Offering or as required by Applicable Law, the Company will have no obligation to pay interest on Contributions.
8. EXERCISE OF PURCHASE RIGHTS.
(a) On each Purchase Date, each Participant’s accumulated Contributions will be applied to the purchase of Common Shares, up to the maximum number of Common Shares permitted by the Plan and the applicable Offering, at the purchase price specified in the Offering. No fractional shares will be issued unless specifically provided for in the Offering.
(b) Unless otherwise provided in the Offering, if any amount of accumulated Contributions remains in a Participant’s account after the purchase of Common Shares on the final Purchase Date of an Offering, then such remaining amount will not roll over to the next Offering and will instead be distributed in full to such Participant after the final Purchase Date of such Offering without interest (unless otherwise required by Applicable Law).
(c) No Purchase Rights may be exercised to any extent unless the Common Shares to be issued upon such exercise under the Plan are covered by an effective registration statement pursuant to the Securities Act and the Plan is in material compliance with all applicable U.S. federal and state, foreign and other securities, exchange control and other laws applicable to the Plan. If on a Purchase Date the Common Shares are not so registered or the Plan is not in such compliance, no Purchase Rights will be exercised on such Purchase Date, and, subject to Section 423 of the Code with respect to the 423 Component, the Purchase Date will be delayed until the Common Shares are subject to such an effective registration statement and the Plan is in material compliance, except that the Purchase Date will in no event be more than 27 months from the Offering Date. If, on the Purchase Date, as delayed to the maximum extent permissible, the Common Shares are not registered and the Plan is not in material compliance with all Applicable Laws, as determined by the Company in its sole discretion, no Purchase Rights will be exercised and all accumulated but unused Contributions will be distributed to the Participants without interest (unless the payment of interest is otherwise required by Applicable Law).
9. COVENANTS OF THE COMPANY.
The Company will seek to obtain from each U.S. federal or state, foreign or other regulatory commission, agency or other Governmental Body having jurisdiction over the Plan such authority as may be required to grant Purchase Rights and issue and sell Common Shares thereunder unless the Company determines, in its sole discretion, that doing so is not practical or would cause the Company to incur costs that are unreasonable. If, after commercially reasonable efforts, the Company is unable to obtain the authority that counsel for the Company deems necessary for the grant of Purchase Rights or the lawful issuance and sale of Common Shares under the Plan, and at a commercially reasonable cost, the Company will be relieved from any liability for failure to grant Purchase Rights and/or to issue and sell Common Shares upon exercise of such Purchase Rights.
10. DESIGNATION OF BENEFICIARY.
(a) The Company may, but is not obligated to, permit a Participant to submit a form designating a beneficiary who will receive any Common Shares and/or Contributions from the Participant’s account under the Plan if the Participant dies before such shares and/or Contributions are delivered to the Participant. The Company may, but is not obligated to, permit the Participant to change such designation of beneficiary. Any such designation and/or change must be on a form approved by the Company.
(b) If a Participant dies, and in the absence of a valid beneficiary designation, the Company will deliver any Common Shares and/or Contributions to the executor or administrator of the estate of the Participant. If no executor or administrator has been appointed (to the knowledge of the Company), the Company, in its sole discretion, may deliver such Common Shares and/or Contributions, without interest (unless the payment of interest is otherwise required by Applicable Law), to the Participant’s spouse, dependents or relatives, or if no spouse, dependent or relative is known to the Company, then to such other person as the Company may designate.
5
11. ADJUSTMENTS UPON CHANGES IN COMMON SHARES CORPORATE TRANSACTIONS.
(a) In the event of a Capitalization Adjustment, the Board will appropriately and proportionately adjust: (i) the class(es) and maximum number of securities subject to the Plan pursuant to Section 3(a), (ii) the class(es) and maximum number of securities by which the share reserve is to increase each year pursuant to Section 3(a), (iii) the class(es) and number of securities subject to, and the purchase price applicable to outstanding Offerings and Purchase Rights, and (iv) the class(es) and number of securities that are the subject of the purchase limits under each ongoing Offering. The Board will make these adjustments, and its determination will be final, binding and conclusive.
(b) In the event of a Corporate Transaction, then: (i) any surviving corporation or acquiring corporation (or the surviving or acquiring corporation’s parent company) may assume or continue outstanding Purchase Rights or may substitute similar rights (including a right to acquire the same consideration paid to the shareholders in the Corporate Transaction) for outstanding Purchase Rights, or (ii) if any surviving or acquiring corporation (or its parent company) does not assume or continue such Purchase Rights or does not substitute similar rights for such Purchase Rights, then the Participants’ accumulated Contributions will be used to purchase Common Shares (rounded down to the nearest whole share) within ten business days (or such other period specified by the Board) prior to the Corporate Transaction under the outstanding Purchase Rights, and the Purchase Rights will terminate immediately after such purchase.
12. AMENDMENT, TERMINATION OR SUSPENSION OF THE PLAN.
(a) The Board may amend the Plan at any time in any respect the Board deems necessary or advisable. However, except as provided in Section 11(a) relating to Capitalization Adjustments, shareholder approval will be required for any amendment of the Plan for which shareholder approval is required by Applicable Law.
(b) The Board may suspend or terminate the Plan at any time. No Purchase Rights may be granted under the Plan while the Plan is suspended or after it is terminated.
Any benefits, privileges, entitlements and obligations under any outstanding Purchase Rights granted before an amendment, suspension or termination of the Plan will not be materially impaired by any such amendment, suspension or termination except (i) with the consent of the person to whom such Purchase Rights were granted, (ii) as necessary to facilitate compliance with any laws, listing requirements, or governmental regulations (including, without limitation, the provisions of Section 423 of the Code and the regulations and other interpretive guidance issued thereunder relating to Employee Share Purchase Plans) including without limitation any such regulations or other guidance that may be issued or amended after the date the Plan is adopted by the Board, or (iii) as necessary to obtain or maintain favorable tax, listing, or regulatory treatment. To be clear, the Board may amend outstanding Purchase Rights without a Participant’s consent if such amendment is necessary to ensure that the Purchase Right and/or the Plan complies with the requirements of Section 423 of the Code with respect to the 423 Component or with respect to other Applicable Laws.
Notwithstanding anything in the Plan or any Offering Document to the contrary, the Board will be entitled to: (i) establish the exchange ratio applicable to amounts withheld in a currency other than U.S. dollars; (ii) permit Contributions in excess of the amount designated by a Participant in order to adjust for mistakes in the Company’s processing of properly completed Contribution elections; (iii) establish reasonable waiting and adjustment periods and/or accounting and crediting procedures to ensure that amounts applied toward the purchase of Common Shares for each Participant properly correspond with amounts withheld from the Participant’s Contributions; (iv) amend any outstanding Purchase Rights or clarify any ambiguities regarding the terms of any Offering to enable the Purchase Rights to qualify under and/or comply with Section 423 of the Code with respect to the 423 Component; and (v) establish other limitations or procedures as the Board determines in its sole discretion advisable that are consistent with the Plan. The actions of the Board pursuant to this paragraph will not be considered to alter or impair any Purchase Rights granted under an Offering as they are part of the initial terms of each Offering and the Purchase Rights granted under each Offering.
13. TAX QUALIFICATION; TAX WITHHOLDING.
(a) Although the Company may endeavor to (i) qualify a Purchase Right for special tax treatment under the laws of the United States or jurisdictions outside of the United States or (ii) avoid adverse tax treatment, the Company makes no representation to that effect and expressly disavows any covenant to maintain special or to avoid unfavorable tax treatment, notwithstanding anything to the contrary in this Plan. The Company will be unconstrained in its corporate activities without regard to the potential negative tax impact on Participants.
6
(b) Each Participant will make arrangements, satisfactory to the Company and any applicable Related Corporation, to enable the Company or the Related Corporation to fulfill any withholding obligation for Tax-Related Items. Without limitation to the foregoing, in the Company’s sole discretion and subject to Applicable Law, such withholding obligation may be satisfied in whole or in part by (i) withholding from the Participant’s salary or any other cash payment due to the Participant from the Company or a Related Corporation; (ii) withholding from the proceeds of the sale of Common Shares acquired under the Plan, either through a voluntary sale or a mandatory sale arranged by the Company; or (iii) any other method deemed acceptable by the Board. The Company shall not be required to issue any Common Shares under the Plan until such obligations are satisfied.
(c) The 423 Component is exempt from the application of Section 409A of the Code, and any ambiguities herein shall be interpreted to so be exempt from Section 409A and Section 457A of the Code. The Non-423 Component is intended to be exempt from the application of Section 409A and Section 457A of the Code under the short-term deferral exception and any ambiguities shall be construed and interpreted in accordance with such intent. In furtherance of the foregoing and notwithstanding any provision in the Plan to the contrary, if the Committee determines that an option granted under the Plan may be subject to Section 409A and/or Section 457A of the Code or that any provision in the Plan would cause an option under the Plan to be subject to Section 409A and/or Section 457A, the Committee may amend the terms of the Plan and/or of an outstanding option granted under the Plan, or take such other action the Committee determines is necessary or appropriate, in each case, without the participant’s consent, to exempt any outstanding option or future option that may be granted under the Plan from or to allow any such options to comply with Section 409A and/or Section 457A of the Code, but only to the extent any such amendments or action by the Committee would not violate Section 409A or Section 457A of the Code. Notwithstanding the foregoing, the Company shall have no liability to a participant or any other party if the option under the Plan that is intended to be exempt from or compliant with Section 409A and/or Section 457A of the Code is not so exempt or compliant or for any action taken by the Committee with respect thereto.
14. EFFECTIVE DATE OF PLAN.
The Plan will become effective immediately prior to and contingent upon the Effective Date. No Purchase Rights will be exercised unless and until the Plan has been approved by the shareholders of the Company, which approval must be within 12 months before or after the date the Plan is adopted (or if required under Section 12(a) above, materially amended) by the Board.
15. MISCELLANEOUS PROVISIONS.
(a) Proceeds from the sale of Common Shares pursuant to Purchase Rights will constitute general funds of the Company.
(b) A Participant will not be deemed to be the holder of, or to have any of the rights of a holder with respect to, Common Shares subject to Purchase Rights unless and until the Participant’s Common Shares acquired upon exercise of Purchase Rights are recorded in the books of the Company (or its transfer agent).
(c) The Plan and Offering do not constitute an employment contract. Nothing in the Plan or in the Offering will in any way alter the at will nature of a Participant’s employment or amend a Participant’s employment contract, if applicable, or be deemed to create in any way whatsoever any obligation on the part of any Participant to continue in the employ of the Company or a Related Corporation or an Affiliate, or on the part of the Company, a Related Corporation or an Affiliate to continue the employment of a Participant.
(d) The Plan and any documents hereunder shall be interpreted and construed in accordance with the laws of the Cayman Islands (without regard to its choice of law provisions). Any reference in this Plan or in any document to a provision of law or to a rule or regulation shall be deemed to include any successor law, rule or regulation of similar effect or applicability.
(e) If any particular provision of the Plan is found to be invalid or otherwise unenforceable, such provision will not affect the other provisions of the Plan, but the Plan will be construed in all respects as if such invalid provision were omitted.
(f) If any provision of the Plan does not comply with Applicable Law, such provision shall be construed in such a manner as to comply with Applicable Law.
7
16. DEFINITIONS.
As used in the Plan, the following definitions will apply to the capitalized terms indicated below:
“423 Component” means the part of the Plan, which excludes the Non-423 Component, pursuant to which Purchase Rights that satisfy the requirements for an Employee Share Purchase Plan may be granted to Eligible Employees.
“Affiliate” means any entity, other than a Related Corporation, whether now or subsequently established, which is at the time of determination, a “parent” or “subsidiary” of the Company as such terms are defined in Rule 405 promulgated under the Securities Act. The Board may determine the time or times at which “parent” or “subsidiary” status is determined within the foregoing definition.
“Applicable Law” means shall mean the Code and any applicable securities, federal, state, foreign, material local or municipal or other law, statute, constitution, principle of common law, resolution, ordinance, code, edict, decree, rule, listing rule, regulation, judicial decision, ruling or requirement issued, enacted, adopted, promulgated, implemented or otherwise put into effect by or under the authority of any Governmental Body (or under the authority of the NASDAQ Stock Market, the New York Stock Exchange or the Financial Industry Regulatory Authority).
“Board” means the board of directors of the Company.
“Capitalization Adjustment” means any change that is made in, or other events that occur with respect to, the Common Shares subject to the Plan or subject to any Purchase Right after the date the Plan is adopted by the Board without the receipt of consideration by the Company through merger, consolidation, reorganization, recapitalization, reincorporation, stock dividend, dividend in property other than cash, large nonrecurring cash dividend, stock split, liquidating dividend, combination of shares, exchange of shares, change in corporate structure or other similar equity restructuring transaction, as that term is used in Financial Accounting Standards Board Accounting Standards Codification Topic 718 (or any successor thereto). Notwithstanding the foregoing, the conversion of any convertible securities of the Company will not be treated as a Capitalization Adjustment.
“Code” means the U.S. Internal Revenue Code of 1986, as amended, including any applicable regulations and guidance thereunder.
“Committee” means a committee of one or more members of the Board to whom authority has been delegated by the Board in accordance with Section 2(c).
“Common Share” means shares of the Company’s common stock, par value [$0.0001].
“Company” means Zura Bio Limited, a Cayman Islands exempted company formerly known as JATT Acquisition Corp, and except as utilized in the definition of Change in Control, any successor corporation.
“Contributions” means the payroll deductions and other additional payments specifically provided for in the Offering that a Participant contributes to fund the exercise of a Purchase Right. A Participant may make additional payments into his or her account if specifically provided for in the Offering, and then only if the Participant has not already had the maximum permitted amount withheld during the Offering through payroll deductions and, with respect to the 423 Component, to the extent permitted by Section 423 of the Code.
“Corporate Transaction” means the consummation, in a single transaction or in a series of related transactions, of any one or more of the following events:
(i) a sale or other disposition of all or substantially all, as determined by the Board in its sole discretion, of the consolidated assets of the Company and its subsidiaries;
(ii) a sale or other disposition of more than 50% of the outstanding securities of the Company;
(iii) a merger, consolidation or similar transaction following which the Company is not the surviving corporation; or
(iv) a merger, consolidation or similar transaction following which the Company is the surviving corporation but the Common Shares outstanding immediately preceding the merger, consolidation or similar transaction are converted or exchanged by virtue of the merger, consolidation or similar transaction into other property, whether in the form of securities, cash or otherwise.
8
- “Designated 423 Corporation” means any Related Corporation selected by the Board to participate in the 423 Component.
“Designated Company” means any Designated Non-423 Corporation or Designated 423 Corporation, provided, however, that at any given time, a Related Corporation participating in the 423 Component shall not be a Related Corporation participating in the Non-423 Component.
- “Designated Non-423 Corporation” means any Related Corporation or Affiliate selected by the Board to participate in the Non-423 Component.
“Director” means a member of the Board.
-“Effective Date” means the date on which the Plan takes effect, which is the date of the closing of the transactions contemplated by the Business Combination Agreement by and among JATT Acquisition Corp, JATT Merger Sub, JATT Merger Sub 2, Zura Bio Holdings Ltd and Zura Bio Limited, dated as of June 16, 2022, provided that this Plan is approved by the JATT’s shareholders prior to such date.
-“Eligible Employee” means an Employee who meets the requirements set forth in the document(s) governing the Offering for eligibility to participate in the Offering, provided that such Employee also meets the requirements for eligibility to participate set forth in the Plan.
“Employee” means any person, including an Officer or Director, who is “employed” for purposes of Section 423(b)(4) of the Code by the Company or a Related Corporation, or solely with respect to the Non-423 Component, an Affiliate. However, service solely as a Director, or payment of a fee for such services, will not cause a Director to be considered an “Employee” for purposes of the Plan.
“Employee Share Purchase Plan” means a plan that grants Purchase Rights intended to be options issued under an “employee stock purchase plan,” as that term is defined in Section 423(b) of the Code.
-“Exchange Act” means the U.S. Securities Exchange Act of 1934, as amended and the rules and regulations promulgated thereunder.
“Fair Market Value” means, as of any date, the value of a Common Share determined as follows:
(i) If the Common Shares are listed on any established stock exchange or traded on any established market, the Fair Market Value of a Common Share will be the closing sales price for such share as quoted on such exchange or market (or the exchange or market with the greatest volume of trading in the Common Shares) on the date of determination, as reported in such source as the Board deems reliable. Unless otherwise provided by the Board, if there is no closing sales price for the Common Shares on the date of determination, then the Fair Market Value will be the closing sales price on the last preceding date for which such quotation exists.
(ii) In the absence of such markets for the Common Shares, the Fair Market Value will be determined by the Board in good faith in compliance with Applicable Laws and regulations and, to the extent applicable as determined in the sole discretion of the Board, in a manner that complies with Sections 409A of the Code
“Governmental Body” means any: (a) nation, state, commonwealth, province, territory, county, municipality, district or other jurisdiction of any nature; (b) federal, state, local, municipal, foreign or other government; (c) governmental or regulatory body, or quasi-governmental body of any nature (including any governmental division, department, administrative agency or bureau, commission, authority, instrumentality, official, ministry, fund, foundation, center, organization, unit, body or entity and any court or other tribunal, and for the avoidance of doubt, any tax authority) or other body exercising similar powers or authority; or (d) self-regulatory organization (including the NASDAQ Stock Market, the New York Stock Exchange and the Financial Industry Regulatory Authority).
“Non-423 Component” means the part of the Plan, which excludes the 423 Component, pursuant to which Purchase Rights that are not intended to satisfy the requirements for an Employee Share Purchase Plan may be granted to Eligible Employees.
“Offering” means the grant to Eligible Employees of Purchase Rights, with the exercise of those Purchase Rights automatically occurring at the end of one or more Purchase Periods. The terms and conditions of an Offering will generally be set forth in the “Offering Document” approved by the Board for that Offering.
9
“Offering Date” means a date selected by the Board for an Offering to commence.
“Officer” means a person who is an officer of the Company or a Related Corporation within the meaning of Section 16 of the Exchange Act.
“Participant” means an Eligible Employee who holds an outstanding Purchase Right.
“Plan” means this Zura Bio Limited 2022 Employee Share Purchase Plan, as amended from time to time, including both the 423 Component and the Non-423 Component.
“Purchase Date” means one or more dates during an Offering selected by the Board on which Purchase Rights will be exercised and on which purchases of Common Shares will be carried out in accordance with such Offering.
“Purchase Period” means a period of time specified within an Offering, generally beginning on the Offering Date or on the first Trading Day following a Purchase Date, and ending on a Purchase Date. An Offering may consist of one or more Purchase Periods.
“Purchase Right” means an option to purchase Common Shares granted pursuant to the Plan.
“Related Corporation” means any “parent corporation” or “subsidiary corporation” of the Company whether now or subsequently established, as those terms are defined in Sections 424(e) and (f), respectively, of the Code.
“Securities Act” means the U.S. Securities Act of 1933, as amended.
“Tax-Related Items” means any income tax, social insurance, payroll tax, fringe benefit tax, payment on account or other tax-related items arising out of or in relation to a Participant’s participation in the Plan, including, but not limited to, the exercise of a Purchase Right and the receipt of Common Shares or the sale or other disposition of Common Shares acquired under the Plan.
“Trading Day” means any day on which the exchange(s) or market(s) on which the Common Shares are listed, including but not limited to the New York Stock Exchange, Nasdaq Global Select Market, the Nasdaq Global Market, the Nasdaq Capital Market or any successors thereto, is open for trading.
10
Exhibit 10.15
STRICTLY PRIVATE AND CONFIDENTIAL
Dated 2nd June 2022
ZURA BIO LIMITED
and
OLIVER JACOB LEVY
SERVICE AGREEMENT
THIS AGREEMENT is entered into between the parties on 2nd June 2022
PARTIES
(1) | Zura Bio Limited a company incorporated and registered in England and Wales with company number 13856620 and whose registered office is at 3rd Floor 1 Ashley Road, Altrincham, Cheshire, United Kingdom, WA14 2DT (the "Company"); and |
(2) | Oliver Jacob Levy of Flat B, 24 Randolph Crescent, London W9 1DR (the "Employee"). |
AGREED TERMS
1. | Definitions |
1.1 | The following terms shall have the following meanings unless the context requires otherwise: |
"Board" means the board of directors of the Company or any person or committee of the board duly appointed by it;
"Capacity" means as agent, consultant, director, employee, owner, partner, shareholder or otherwise;
"Commencement Date" means 1 April 2022;
"Confidential Information" means trade secrets, knowhow and information (whether or not recorded in documentary form, or stored on any magnetic or optical disk or memory) relating to the business, products, affairs and finances of any Group Company or any of their suppliers, business associates, partners, investors, contractors, customers, agents, shareholders or management, including (but not limited to):
i. | research papers and research findings, technical designs, processes, formulae, manufacturing methods, algorithms, codes, drawings, diagrams, specifications, source codes and software; |
ii. | details of current activities and current and future business strategies and tactics and research and development including (without limitation) those relating to product development, future research, development and usage, investors, investment and other forms of financing, regulatory processes and regulatory approvals, services, management, advertising, sales and marketing, the acquisition or disposal of a company or business or part thereof or any proposed expansion or contraction of activities or current or proposed contracting or outsourcing; |
iii. | the research and development of new systems, products, services or use cases; |
iv. | external business associates or partners, laboratories, consultants, contractors and suppliers and their pricing, incentives, services, designs, production, development and delivery capabilities; |
v. | clients and details of their particular requirements and businesses and the terms of business with them; |
vi. | details of consultants, employees and officers of the Company or any Group Company and of any specific skillset, remuneration and other benefits paid to them; |
vii. | costings, profit margins, discounts, rebates, pricing, payment and credit policies and other financial information and procedures and systems for the foregoing whether of the Company, a Group Company or of any partner, contractor, client, customer, supplier, agent or business associate of the Company or Group Company; |
viii. | existing and prospective operating systems, software applications and methods or production, manufacture, processing or treatment; |
ix. | contact lists, data bases and other similar assimilations of business or individual contact details; |
x. | any document or intangible material clearly marked 'confidential', information which the Employee is told is confidential or any other information of a private, confidential or secret nature concerning the Company or any Group Company and any information which has been given to the Company or any Group Company in confidence by clients, customers, suppliers, agents, business associates or other persons (notwithstanding that information falling into i to ix above shall be considered Confidential Information whether or not marked or otherwise identified as such). |
Information is not Confidential Information if:
i. | it is, or becomes, generally available to the public other than as a direct or indirect result of the information being disclosed by the Employee in breach of this agreement (except that any compilation of otherwise public information in a form not publicly known shall still be treated as Confidential Information); or |
ii. | it was available to the Employee on a non-confidential basis before disclosure by the Company or any Group Company; |
"Copies" means copies or records of any Confidential Information in whatever form (including, without limitation, in written, oral, visual or electronic form or on any magnetic or optical disk or memory and wherever located) including, without limitation, extracts, analysis, studies, plans, compilations or any other way of representing or recording and recalling information which contains, reflects or is derived or generated from Confidential Information;
“Employment Inventions” means any Invention which is made wholly or partially by the Employee at any time during the course of their employment with the Company (whether or not during working hours or using the Company’s premises or resources, and whether or not recorded in material form and whether before or after the date of this Agreement);
“Employment IPRs” means Intellectual Property Rights created by the Employee in the course of their employment with the Company (whether or not during working hours or using the Company’s premises or resources and whether before or after the date of this Agreement);
"Garden Leave" means any period during which the Company has exercised its rights under clause 23;
"Group Company" means the Company and any group undertaking (as such term is defined in section 1161(5) of the Companies Act 2006) of the Company in any jurisdiction from time to time;
"Intellectual Property Rights" means patents, rights to Inventions, copyright and related rights, trade marks, service marks, trade names and domain names, rights in get-up, rights in goodwill or to sue for passing off, unfair competition rights, rights in designs, rights in computer software, database rights, topography rights, rights in confidential information (including know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered and including all applications (or rights to apply) for, and renewals or extensions of, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world;
"Invention" means any invention, idea, discovery, development, improvement or innovation, whether or not patentable or capable of registration, and whether or not recorded in any medium;
"Permitted Investment" has the meaning given to it in clause 16.3; and
"Termination" means the termination of the Employee’s employment under this Agreement however caused, whether lawful or not, and "Termination Date" means the date of Termination.
1.2 | In this Agreement, unless the context otherwise requires: |
1.2.1 | words in the singular include the plural and in the plural include the singular; |
1.2.2 | any phrase introduced by the terms "including", "include", "in particular" or any similar expression shall be construed as illustrative and shall not limit the sense of the words preceding those terms; |
1.2.3 | the headings are inserted for convenience only and shall not affect its construction; |
1.2.4 | reference to a particular law is a reference to it as it is in force for the time being taking account of any amendment, extension or re-enactment and includes any subordinate legislation for the time being in force made under it; |
1.2.5 | the Schedules shall form part of this Agreement, shall have effect as if set out in full in the body of this Agreement and any reference to this Agreement includes the Schedules; |
1.2.6 | reference to any regulator or other body includes a reference to any successor; |
1.2.7 | references to clauses and the parties are respectively to clauses of and the parties to this Agreement; and |
1.2.8 | save as otherwise defined words and expressions shall be construed in accordance with the Interpretation Act 1978. |
2. | Term of Employment |
2.1 | The Employee’s employment under the terms of this Agreement commenced on the Commencement Date and shall continue, subject to the remaining terms of this Agreement, until terminated by either party giving the other not less than six (6) months' prior notice in writing or such longer period as may be required by law. |
2.2 | The Employee’s continuous period of employment commenced on the Commencement Date. No previous employment with the Company or any other employer counts as part of the Employee's period of continuous employment with the Company. |
3. | Pre-Conditions and Warranties |
3.1 | The Employee’s employment under this Agreement is conditional upon: |
3.1.1 | the Employee having produced to the Company for inspection original documents proving the Employee’s right to work lawfully in the United Kingdom; and |
3.1.2 | the Company having obtained and being satisfied with the results of such written and/or oral references and such other background screening as the Company shall determine. |
3.2 | The Employee warrants that: |
3.2.1 | all information provided to the Company by or on behalf of the Employee during the recruitment process is true, complete and not misleading; |
3.2.2 | the Employee is entitled to work in the United Kingdom without any additional approvals; and |
3.2.3 | the Employee is not prevented by the terms of any agreement or court order from commencing employment with the Company on the Commencement Date and that there are no express or implied terms of any contract with (or other obligation to) any third party that could prevent or hinder the performance of the Employee’s duties in full to any Group Company. |
3.3 | It is a condition of this employment that the Employee has and maintains during the course of this employment, valid United Kingdom immigration permission which permits the Employee to be employed by the Company in the role for which the Employee is employed. The Employee must notify the Company immediately if at any time the Employee does not meet this condition. The Employee must produce to the Company for inspection the documents proving this right to the Company’s satisfaction upon the Commencement Date and otherwise upon request. If the Employee has time limited immigration permission, the Employee must produce this evidence on an annual basis. If the Employee is sponsored by the Company, it is a condition of the employment that the Employee provides the Company with the information that it requires to comply with its obligations as a licensed sponsor. |
3.4 | If the Employee is in breach of any of the warranties or fails to satisfy any of the conditions set out in this clause 3 then the Company shall be entitled to terminate the Employee’s employment summarily. |
4. | Duties |
4.1 | The Employee shall serve the Company as the Chief Financial Officer of the Company or in such other role as the Board may reasonably determine. The Employee’s duties shall be as specified from time to time by the Board. |
4.2 | During the employment the Employee shall: |
4.2.1 | devote the majority of their working time, (such time to be determined in line with clause 7.1) attention and abilities to the business of the Company and any other Group Company for which the Employee is required to work from time to time; |
4.2.2 | faithfully and diligently exercise such powers and perform such duties for each Group Company as may from time to time be assigned by the Company; |
4.2.3 | comply with all reasonable and lawful directions given by the Board and give to the Board such explanations, information and assistance as the Board may reasonably require; |
4.2.4 | promptly make such reports to the Board in connection with the affairs of each Group Company on such matters and at such times as are reasonably required; |
4.2.5 | report their own wrongdoing and any wrongdoing or proposed or potential wrongdoing of any other employee, officer or consultant of any Group Company to the Board immediately on becoming aware of it; |
4.2.6 | use their utmost endeavours to promote, protect, develop and extend the business of each Group Company; |
4.2.7 | comply with their common law, statutory, regulatory and fiduciary duties including those contained in the Companies Act 2006 and any professional conduct rules applicable to them ; |
4.2.8 | exercise the Employee’s powers jointly with such other person that the Company may appoint; and |
4.2.9 | at all times conduct the business of each Group Company for which the Employee is responsible in a lawful and ethical manner; |
4.2.10 | report to the Board in writing any matter relating to the Company or any Group Company or any of its or their officers or employees of which they become aware and which constitutes or is likely to constitute a breach of a legal obligation; |
4.2.11 | not engage in any form of facilitating tax evasion whether under UK law or under the law of any foreign country. The Employee must immediately report to the Board any request or demand from a third party to facilitate the evasion of tax or any concerns that such a request or demand may have been made; and |
4.2.12 | not without the written consent of the Board (such consent not to be unreasonably withheld) pledge the credit of the Company or any Group Company other than in the day to day running of the Company or enter into any major or substantial commitment or contract without the approval of the Board. |
4.3 | During the employment the Company has no duty to provide any work to, or vest any powers in, the Employee and the Employee shall have no right to perform any services for the Company or any Group Company. |
4.4 | The Employee must not whether during his employment or at any time thereafter make any comment (whether oral or in writing in any forum whatsoever) in relation to the Company, the Group Company, its/their business associates, partners, investors, employees, shareholders, directors or any other personnel or business contacts which is derogatory to or which might damage its or their reputation in any way. |
4.5 | The Employee shall immediately inform the Board, if at any time during his employment he becomes aware that two or more employees of the Company or any Group Company plan or propose to leave either at the same time or within six months’ of the first employee’s termination date, in order to become employed, concerned or engaged, in or by the same person or entity, including for the avoidance of doubt engagement on the employees’ own account or through an agency or service company, including in the circumstance when one such employee is himself. |
5. | Policies and Procedures |
5.1 | The Employee will read and comply strictly with: |
5.1.1 | any rules, policies and procedures that apply to each Group Company at all times; and |
5.1.2 | any other laws and regulations material to the conduct of the business of the Company or any Group Company. |
5.2 | Although the Company’s rules, policies and procedures do not form part of this Agreement, failure to comply with them may result in disciplinary action up to and including dismissal. |
5.3 | The Company expects the highest standards of integrity in relation to the Employee’s dealings with the Company's customers, suppliers, agents and subcontractors and with any government official. The Employee must comply with the Company's Anti-bribery and Corruption Policy (insofar as such a policy is in place from time to time). Any breach of this policy will be regarded as a serious matter and will be dealt with under the Company's disciplinary procedure. Serious cases may be treated as gross misconduct leading to summary dismissal. |
6. | Place of Work |
6.1 | The normal place of work of the Employee is his home which must be in the United Kingdom except with the Company’s prior consent (not to be unreasonably withheld). If the Company opens an office in due course the Employee may be required to work all or part of his time from that office as reasonably agreed between the parties. |
6.2 | The Employee agrees to travel on any business of any Group Company (both within the United Kingdom and abroad) as may be required for the proper performance of the Employee’s duties. |
6.3 | The Employee shall not be required to work outside the United Kingdom for any continuous period of more than one month. |
6.4 | The Employee confirms that he: |
6.4.1 | is not in breach of any covenant or agreement in doing work at his/her home address; |
6.4.2 | shall inform the Company as soon as possible if he/she plans to change his home address and when it does actually change; |
6.4.3 | shall take reasonable steps to ensure that all Company property and confidential information is held securely at his/her home address when working from home; |
6.4.4 | shall comply with the Company’s Home Working Policies (insofar as such policies are in place from time to time); and |
6.4.5 | shall comply with all health and safety guidelines and instructions which the Company may give to the Employee from time to time and complete without delay all health and safety questionnaires the Company may send to the Employee from time to time. |
6.5 | The Employee is entitled to a rest break of 20 minutes for every six hours that they work. It is the Employee’s responsibility to ensure they take this rest break. |
6.6 | The Employee is responsible for ensuring the security of confidential information in their home. In particular, they undertake to: |
6.6.1 | use appropriate password security; |
6.6.2 | use appropriate software security and keep security software up to date on all devices used for work purposes; |
6.6.3 | comply with the Company’s instructions relating to security of communications; |
6.6.4 | protect all and any data held on any device and comply with any data protection policy the Company has in place and the Company’s instructions relating to the sharing of data; |
6.6.5 | take all care to maintain confidentiality when working from home and comply with all Company instructions in this regard; |
6.6.6 | lock their computer (with a reasonable self-locking time delay) terminal whenever it is left unattended; |
6.6.7 | ensure no one else in their home has access to confidential information stored on their computer or other devices; |
6.6.8 | ensure any wireless network is secure and comply with the Company’s instructions relating to wireless network security; |
6.6.9 | shred or otherwise dispose securely of confidential information when it is no longer required and at all times comply with the Company’s instructions on document retention; and |
6.6.14 | report immediately to the Board any data breach or incident involving the security of information held as a result of the Employee’s employment that they discover or suspect. |
7. | Hours of Work |
7.1 | The Company and Employee acknowledge that normal working hours are 9am until 5:30pm from Monday to Friday and the Company and Employee agree that Employee will spend the majority of such normal working hours at such times each week as are necessary for the proper performance of his duties hereunder. Due to the seniority of the Employee’s role, his hours of work may vary. The Employee must work such additional hours and travel within and outside the United Kingdom as may reasonably be required for the proper performance of their duties. |
7.2 | The Employee consents to opt out of the limit on weekly working hours contained in Regulation 4 of The Working Time Regulations 1998. The Company and the Employee agree that the Employee’s consent, for the purposes of this clause, shall continue indefinitely provided that the Employee may withdraw such consent at any time by giving the Company three months’ notice of their wish to do so. |
8. | Salary |
8.1 | The Employee shall be paid a basic salary of £200,000 per annum (the “basic salary”) subject to deductions required by law. The Employee’s salary shall accrue from day to day, shall be payable in equal monthly instalments in arrears on or about the last day of each month and shall include any directors’ fees. |
8.2 | The Employee acknowledges that they are not entitled to receive further remuneration in respect of any additional hours worked above their normal working hours. |
8.3 | The Company may deduct from the salary or any other sums payable to the Employee any money owed to any Group Company by the Employee (including but not limited to loans, advances, relocation expenses and excess holiday payments). The Employee will reimburse the Company upon demand for the personal use of any Company credit card, any other unauthorised transactions entered into by the Employee or any overpayments made to the Employee. |
8.4 | The Employees salary will be reviewed annually in each year by the Board. The Company has no obligation to increase the Employee’s salary following a salary review. |
9. | Expenses and Business Equipment |
9.1 | The Company shall reimburse any reasonable travel, hotel, entertainment and other out of pocket expenses wholly, exclusively and necessarily incurred by the Employee in the proper performance of the Employee’s duties under this Agreement subject always to the rules and policies of the Company from time to time and subject to the Employee providing receipts or other evidence of payment as the Company may require. |
9.2 | The Employee shall abide by such Company policy or policies on expenses as may be in place from time to time. As a general rule, the Employee shall be mindful of the need to minimise incurring expenses where possible and if necessary, that such expenses should be incurred in the most cost effective way. |
9.3 | To facilitate the payment of the Employee’s expenses, the Company will provide him with a company credit/debit card in his name for which the account will be rendered to and paid by the Company. The Employee will use the card solely for expenses referred to in this clause and return it to the Company’s registered office immediately upon the termination of this Agreement, or if requested to do so by the Company. |
9.4 | The Company may provide the Employee with the use of a mobile phone and laptop and/or associated computer accessories (collectively Business Equipment) for his business use, which will remain the Company’s property at all times. |
9.5 | The Employee shall not allow anyone else to use the Business Equipment, recognising that it may contain Confidential Information. The Employee also recognise that although he may store some personal information on the Business Equipment, it must not be overloaded to the extent that it would impede/restrict the memory for legitimate business use. |
9.6 | The Company will bear all reasonable costs associated with the use of the Business Equipment. If the Employee makes personal calls using the Company mobile phone, the Company may require the Employee to indicate on each itemised bill which calls, texts or data usage (including downloads) are personal, and to reimburse it for those personal calls which, in its opinion, exceed a reasonable allowance for personal usage. The Company may deduct the cost of these calls, texts or data usage from the Employee’s basic salary. |
9.7 | The Employee shall take good care of all Business Equipment and shall notify any Group Company should there be any technical difficulties with such Business Equipment and/or that it might require repair/replacement. Should such repair/replacement arise as a result of the Employee’s fault, the Employee may be required (at the Company’s discretion) to meet the cost of such repair/replacement. |
9.8 | On Termination or at any other time upon request of the Company, the Employee shall return the Business Equipment to the Company in good condition, together with all handbooks, cables and other related accessories. Prior to the return of the Business Equipment the Employee should not delete any material stored on the Business Equipment whether business or personal. |
9.9 | Until such time as the Company provides the Employee with Business Equipment, he shall be permitted to use his personal devices for business purposes. In relation to any such personal devices the Employee will promptly on request from the Company at any time: |
9.9.1 | Return all Confidential Information and any other business information belonging to the Company or related to the business of the Company or any Group Company; and/or |
9.9.2 | Delete such Confidential Information and other business information from all relevant personal devices without keeping any copies; and/or |
9.9.3 | Provide evidence that the above has been complied with, including but not limited to providing the Employee’s device(s) to the Company so that it can be checked. |
10. | Bonus |
10.1 | The Company does not currently run any bonus scheme. Notwithstanding this, following successful completion of its next financing event, the Company may at its absolutely discretion from time to time pay a bonus to the Employee at such level, on such conditions and at such time as the Company may decide at its absolute discretion. |
10.2 | In relation to any bonus, the Company may suspend, alter or discontinue any bonus payment(s) or any bonus plan and its eligibility requirements at any time (whether generally or in relation to the Employee only) at its absolute discretion. If the Employee receives any bonus payment the Company is not obliged to make any further bonus payments and any bonus payment will not become part of the Employee's contractual remuneration or fixed salary. |
10.3 | In order to be eligible to receive a bonus payment, the Employee must be in the Company's employment and not under notice, given or received on the date that the bonus is paid. Bonus entitlement does not accrue in the course of a year, and the Employee is not entitled to payment of a bonus, or any pro rata portion of it, if the Employee leaves employment prior to the date that the bonus is paid. |
10.4 | The Employee shall not be eligible to be considered for any bonus nor shall any bonus be paid if the Employee is subject to any disciplinary action or investigation at the date any bonus is being considered and/or at the bonus payment date (as applicable) although the Company may reconsider the matter upon the conclusion of the disciplinary action or investigation in question. |
11. | Pensions |
11.1 | The Company will comply with the employer pension duties in respect of the Employee in accordance with Part 1 of the Pensions Act 2008. |
11.2 | If the Employee is eligible to be enrolled in the pension, the Company shall be entitled to deduct from the Employee’s salary any amounts payable by the Employee as member contributions to such pension scheme as the Company is using from time to time. |
12. | Benefit Plans |
12.1 | The Company may introduce from time to time benefit plans, in which the Employee may be invited to participate. At the moment the Company is proposing to put in place a life insurance scheme and a private medical health insurance scheme but this is not yet confirmed. The Company may also put in place a policy of Directors and Officers insurance but this is not yet confirmed. If such schemes are put in place the Employee will be eligible to participate. |
12.2 | The Employee’s participation in the benefit plans referred to in this clause are subject to: |
12.2.1 | the terms of that benefit plan, as amended from time to time; |
12.2.2 | the rules or the insurance policy of the relevant benefit provider, as amended from time to time; and |
12.2.3 | the Employee satisfying the normal underwriting requirements of the relevant benefits provider (which may involve a medical and/or a medical questionnaire) and the premium being at a rate which the Company considers reasonable. |
12.3 | The Company’s obligation under this clause is limited to paying premiums to the relevant benefits provider. If the benefit provider refuses to accept a claim under the relevant benefit plan the Company shall have no obligation or responsibility to challenge that decision or to compensate the Employee. |
12.4 | The Company reserves the right to discontinue, vary or amend each benefit plan (including the level of cover) at any time on reasonable notice to the Employee. |
13. | Holidays |
13.1 | The Employee shall be entitled to the full time equivalent of 33 days' paid holiday in each holiday year (including any public holidays in England that fall on a working day) to be taken at times convenient to the Company and authorised in advance and paid at the rate of the Employee’s normal remuneration. In any holiday year the Employee’s statutory holiday entitlement will be deemed to be taken first. |
13.2 | The Company's holiday year runs between 1 January and 31 December. If the Employee’s employment commences or terminates part way through a holiday year, the Employee's entitlement during that holiday year shall be calculated on a pro rata basis rounded up to the nearest whole day. |
13.3 | The Employee shall have no entitlement to any payment in lieu of accrued but untaken holiday except on Termination. The amount of such payment in lieu shall be 1/182 of the Employee's basic salary for each untaken day of entitlement. |
13.4 | If on Termination the Employee has taken in excess of their accrued holiday entitlement, the Company shall be entitled to recover from the Employee by way of deduction from any payments due to the Employee or otherwise, one day's pay for each excess day calculated at 1/182 of the Employee’s basic salary. |
13.5 | If either party has served notice to terminate the employment, the Company may require the Employee to take any accrued but unused holiday entitlement during the notice period. Any accrued but unused holiday entitlement shall be deemed to be taken during any period of Garden Leave. |
14. | Sickness |
14.1 | The Employee will be entitled to statutory sick pay in accordance with the prevailing rules of the statutory sick pay scheme. Any further payments will be discretionary, non- contractual and may be discontinued at any time. In terms of identifying whether a particular day was a working day for the purposes of this clause the Company shall first consider the particular three days in that week when the Employee was planning to work (having obtained input from the Employee) and if this is not obvious the Company will take a reasonable pro-rated approach. |
14.2 | The Employee must comply with the Company’s sickness absence notification procedures. Each time the Employee is absent from work they shall provide evidence to the Company of the reason for their absence. This evidence shall be provided by way of a self-certification form which shall be completed by the Employee on the first day on which the Employee returns to work. In addition, in the case of illness or injury lasting for more than seven consecutive days, the Employee shall provide a doctor's certificate on the eighth day of illness or injury and weekly thereafter. |
14.3 | The Employee consents to undergo a medical examination by a doctor nominated by the Company at the Company’s request and expense, and shall authorise such medical practitioner to disclose to, and discuss with, the Company the results of any such medical examination. |
14.4 | The rights of the Company to terminate the Employee’s employment under the terms of this Agreement apply even when such termination would or might cause the Employee to forfeit any entitlement to sick pay, permanent health insurance or other benefits. |
15. | Directorships |
15.1 | The Employee shall serve as director of the Company and any Group Company as required from time to time. The Employee will: |
15.1.1 | comply with the articles of association (as amended from time to time) of any Group Company of which the Employee is a director or otherwise responsible; and |
15.1.2 | not do anything that would cause the Employee’s disqualification as a director. |
15.2 | On Termination or at any time at the Company’s request, the Employee shall: |
15.2.1 | immediately resign, without any claim for compensation, from any directorships or offices in any Group Company; and |
15.2.2 | transfer to the Company or as it may direct, without payment, any shares or other securities held by the Employee in any Group Company, which are held as a nominee or trustee for or for the benefit of, any Group Company and deliver to the Company the related certificates and do all acts or things necessary to give effect to the same. |
15.3 | Except with the prior approval of the Board or as required by this Agreement the Employee shall not resign as a director of any Group Company. |
15.4 | By way of security for the Employee’s obligations under this Agreement, the Employee hereby irrevocably appoints the Company to be their attorney to execute and do any such instrument or thing and generally to use the Employee’s name for the purpose of giving the Company or its nominee the full benefit of clause 15. |
15.5 | Any appointment of the Employee as a statutory director of any Group Company shall not amount to a term of employment. In the event of the Employee ceasing to be a statutory director as a result of the Company removing the Employee from any such directorship at any time for any reason this will not amount to a breach of this agreement and shall not give rise to a claim for damages or compensation |
15.6 | The Employee consents to any Group Company making their service contract (as defined in the Companies Act 2006) available for inspection in compliance with that Act notwithstanding that it contains their residential address. |
15.7 | If during the Employee’s employment he ceases to be a director of any Group Company, the Company may elect whether his employment shall continue as an employee only based on the needs of the business and the requirements of the role. The Employee shall have no claims in respect of such cessation of office. |
16. | Outside Activities and Interests and share dealing |
16.1 | The Employee shall not during the employment except as a representative of the Company or with the Board’s prior written consent (whether directly or indirectly, paid or unpaid) be employed, engaged, concerned or interested in any other actual or prospective business, organisation, occupation or profession. To the extent that such consent is given it shall be subject to the condition that the activity or interest in question: |
16.1.1 | does not prejudice the proper performance of the Employee’s duties under this agreement; |
16.1.2 | does not create a conflict of interest or a material risk of a potential conflict of interest in the future; and |
16.1.3 | is not in direct competition with the businesses of any Group Company. |
16.2 | Schedule 2 contains the interests disclosed and approved as at the date of this agreement. Should any of the details of these interests materially change, the Employee will inform the Board immediately and seek its approval to continue. |
16.3 | Nothing in this Agreement shall prevent the Employee from holding an investment by way of shares or other securities in any entity listed or dealt on a recognised stock exchange (a “Permitted Investment”) provided always that during the term of the employment the Permitted Investment shall not constitute more than 3% of the issued share capital of the entity concerned and subject to such holding not giving rise to a breach of clause 16.5. |
16.4 | For the purposes of Clause 0, Price Sensitive Information shall mean any information which: |
16.4.1 | relates (directly or indirectly) to any Group Company or their affiliates, or any of their respective clients, suppliers or customers or any shares, debentures or other securities in any of them; and |
16.4.2 | is not generally known or available to those persons who are accustomed or would be likely or may deal in those securities but which would, if it were known or available to them, be likely materially to affect the price of those securities. |
16.5 | Without prejudice to clause 17, in relation to dealings in shares, debentures or other securities in any Group Company and in relation to Price Sensitive Information, the Employee shall: |
16.5.1 | not publish or otherwise disclose to any other person (whether during or after the period of this Agreement) any Price Sensitive Information acquired in the course of his employment nor make any other improper use of Price Sensitive Information (including using such information for his own benefit or for the benefit of any third party); |
16.5.2 | comply where relevant with every rule of law, every regulation of recognised stock exchange, regulator or other relevant body, every regulation of any such exchange, regulator or body and with the spirit as well as the letter of the rules applying to every stock exchange on which the shares of any Group Company are listed or traded; |
16.5.3 | comply with all laws of the state and all regulations of the stock exchange, market or dealing system in which such dealings take place; |
16.5.4 | not (and shall procure so far as the Employee is able that the Employee’s spouse or civil partner and children do not) deal or become, or cease to be, interested in any securities of any Group Company except in accordance with all applicable rules and guidelines and in accordance with the provisions of this Agreement. |
17. | Confidential Information |
17.1 | The Employee acknowledges that in the course of the employment they will have access to Confidential Information. |
17.2 | Without prejudice to the Employee’s common law and fiduciary duties, the Employee shall not during employment or at any time after Termination and whether for their own benefit or for the benefit of any third party directly or indirectly: |
17.2.1 | use any Confidential Information; or |
17.2.2 | disclose any Confidential Information to any person, company or other organisation whatsoever, except in the proper course of their duties, as required by law or as authorised by the Company in writing; or |
17.2.3 | remove from the Employee’s principal place of work any document, record, disk, tape, program or other document, material or storage device containing or referring to Confidential Information (save as necessary for the proper performance of the Employee’s duties or where the information is contained on an electronic device which is the Employee’s personal property and in each case the Employee must use reasonable endeavours to protect that material from loss or theft or other unauthorised disclosure . In the event of any such loss, theft or other unauthorised disclosure he informs the Board immediately); |
17.2.4 | post Confidential Information on any social media sites, including Facebook, LinkedIn, Twitter, WhatsApp or any similar social or professional networking online sites or applications. On Termination, the Employee must comply with the terms of the Company's Social Media Policy governing termination (insofar as such a policy is in place at the relevant time) |
17.3 | The Employee shall be responsible for protecting the confidentiality of the Confidential Information and shall use best endeavours to prevent the misuse of Confidential Information by others. |
17.4 | All Confidential Information and Copies shall be the property of the Company and the Employee shall not make any Copies save in the proper course of their employment. |
17.5 | Save as authorised by the Company, the Employee shall not make or publish any comment regarding the business of any Group Company or any of its current or former employees or directors to the media (including on social media). |
18. | Exceptions to Confidentiality Restrictions |
18.1 | Notwithstanding any provision to the contrary, nothing in this Agreement shall prevent any person from: |
18.1.1 | using or disclosing Confidential Information or making any report or disclosure which : |
(a) | is required by HM Revenue and Customs; or |
(b) | they are required to disclose by law or by a court of competent jurisdiction or is appropriate to disclose to a regulatory body; or |
(c) | is appropriate to disclose to the police or a law enforcement agency in circumstances in which a criminal offence has been, or is alleged to have been, committed; or |
(d) | is necessary and appropriate to disclose in confidence to a trade union representative or a regulated health, care or legal professional; or |
(e) | they are entitled to disclose under section 43A to 43L of the Employment Rights Act 1996 (whistleblowing provisions) provided that the disclosure is made in an appropriate way to an appropriate person having regard to the provisions of that Act |
18.1.2 | co-operating with a criminal investigation or prosecution; |
18.2 | Nothing in this Agreement is intended to prevent or inhibit any report, disclosure or co- operation referred to in clause 18.1 (“Disclosure”) or to influence the substance of such Disclosure. |
19. | Whistleblowing |
19.1 | It is the duty of the Employee to report to the Board any material breach by any Group Company of their legal obligations of which the Employee is aware. Concerns should be reported, in writing, to the Board. |
20. | Intellectual Property |
20.1 | The Employee acknowledges that all Employment IPRs, Employment Inventions and all materials embodying them shall automatically belong to the Company to the fullest extent permitted by law. To the extent that they do not vest in the Company automatically, the Employee holds them on trust for the Company until fully vested in the Company. |
20.2 | The Employee acknowledges that, because of the nature of their duties and the particular responsibilities arising from the nature of those duties, the Employee has, and shall have at all times while employed by the Company, a special obligation to further the Company’s interests. |
20.3 | To the extent that title in the Employment IPRs do not vest in the Company as described clause 20.1, to the fullest extent permitted by law, the Employee hereby assigns to the Company with full title guarantee absolutely all right, title and interest in and to the Employment IPRs for the full term of such rights and all renewals and extensions, together with all accrued causes of action (whether occurring before, on, or after the date of this Agreement). |
20.4 | To the extent that legal title in and to any Employment Inventions or Employment IPRs do not vest in the Company as described in clause 20.1 or pursuant to clause 20.3, the Employee agrees, immediately on creation of such rights and Inventions, to offer to the Company in writing a right of first refusal to acquire them on arm's length terms to be agreed between the parties. If the parties cannot agree on such terms within 30 days of the Company receiving the offer, the Company shall refer the dispute for determination to an expert who shall be appointed by the President of the Chartered Institute of Arbitrators. The expert's decisions shall be final and binding on the parties in the absence of manifest error, and the costs of arbitration shall be borne equally by the parties. The parties will be entitled to make submissions to the expert and will provide (or procure that others provide) the expert with such assistance and documents as the expert reasonably requires for the purpose of reaching a decision. The Employee agrees that the provisions of this clause 20.4 shall apply to all Employment IPRs and Employment Inventions offered to the Company under this clause 20.4 until such time as the Company has agreed in writing that the Employee may offer them for sale to a third party. |
20.5 | The Employee agrees: |
20.5.1 | to give the Company full written details of all Employment Inventions promptly on their creation; |
20.5.2 | at the Company’s request and in any event on the termination of their employment to give the Company all originals and copies of correspondence, documents, papers and records on all media which record or relate to any of the Employment IPRs; |
20.5.3 | not to attempt to register any Employment IPR nor patent any Employment Invention unless requested to do so by the Company; and |
20.5.4 | to keep confidential each Employment Invention unless the Company has consented in writing to its disclosure by the Employee. |
20.6 | The Employee waives all their present and future moral rights which arise under the Copyright Designs and Patents Act 1988, and all similar rights in other jurisdictions relating to any copyright which forms part of the Employment IPRs, and agrees not to support, maintain or permit any claim for infringement of moral rights in such copyright works. |
20.7 | The Employee acknowledges that, except as provided by law, no further remuneration or compensation other than that provided for in this agreement is or may become due to the Employee in respect of their compliance with this clause. This clause is without prejudice to the Employee’s rights under the Patents Act 1977. |
20.8 | The Employee undertakes to execute all documents and do all acts both during and after their employment by the Company as may, in the opinion of the Board, be necessary or desirable to vest the Employment IPRs in the Company, to register them in the Company’s name and to protect and maintain the Employment IPRs and the Employment Inventions. Such documents may, at the Company’s request, include waivers of all and any statutory moral rights relating to any copyright works which form part of the Employment IPRs. The Company agrees to reimburse the Employee’s reasonable expenses of complying with this clause 20.8. |
20.9 | The Employee agrees to give all necessary assistance to the Company to enable it to enforce its Intellectual Property Rights against third parties, to defend claims for infringement of third party Intellectual Property Rights and to apply for registration of Intellectual Property Rights, where appropriate throughout the world, and for the full term of those rights. |
20.10 | The Employee hereby irrevocably appoints the Company to be their attorney in their name and on their behalf to execute documents, use their name and do all things which are necessary or desirable for the Company to obtain for itself or the Company’s nominee the full benefit of this clause 20. |
20.11 | The Employee agrees that the Employee’s work for the Company will be the Employee’s own original work and the Employee will not violate the intellectual property rights of third parties. The Company does not want and does not need any confidential information relating to any former employer of the Employee and the Employee agrees to not to copy, use or disclose such information. |
21. | Payment in Lieu of Notice |
21.1 | The Company may, in its sole and absolute discretion, terminate the Employee’s employment under this Agreement at any time and with immediate effect by notifying the Employee that the Company is exercising its right under this clause 21.1 and that it will make a payment in lieu of notice ("PILON") to the Employee. The Employee’s employment will terminate immediately and any PILON due to the Employee in accordance with the provisions of this clause 21.1 will subsequently be paid. The PILON will be equal to the basic salary (as at the Termination Date) which the Employee would have been entitled to receive under this Agreement during the notice period referred to at clause 2 (or, if notice has already been given, during the remainder of the notice period) less deductions required by law or such other payment instead including but not limited to sick pay as would have been payable instead of basic salary during such notice period or part thereof. For the avoidance of doubt the PILON shall not include any element in relation to: |
21.1.1 | any bonus or commission payments, or payments, rights or benefits under any share option or long term incentive plan or salary sacrifice scheme that might otherwise have been due had the Employee worked for the Company during the notice period for which the Payment in Lieu is made; |
21.1.2 | any payment in respect of benefits which the Employee would have been entitled to receive had they worked for the Company during the notice period for which the Payment in Lieu is made; and |
21.1.3 | any payment in respect of any Holiday Entitlement that would have accrued had the Employee worked for the Company during the notice period for which the Payment in Lieu is made. |
21.2 | The Company may pay any sums due under clause 21.1 in equal monthly instalments until the date on which the notice period referred to in clause 2.1 would have expired if notice had been given. The Employee shall be obliged to seek alternative income during this period and to notify the Company of any income so received. The instalment payments shall then be reduced by the amount of such income. |
21.3 | The Employee shall have no right to receive a PILON unless the Company has exercised its discretion in clause 21.1. Nothing in this clause 21 shall prevent the Company from terminating the Employee’s employment under this Agreement in breach. |
21.4 | Notwithstanding clause 21.1, the Employee shall not be entitled to any PILON if the Company would otherwise have been entitled to terminate the Employee’s employment under this Agreement without notice in accordance with clause 22. In that case the Company shall also be entitled to recover from the Employee any PILON already made. |
21.5 | On termination of the employment howsoever arising the Employee shall not have any claim for breach of contract in respect of the loss of any rights or benefits under any share option, bonus, long-term incentive plan or other profit sharing scheme operated by the Company or by any Group Company in which the Employee may participate which would otherwise have accrued during the period of notice to which the Employee is entitled under clause 2 of the Agreement. |
22. | Termination Without Notice |
22.1 | The Company may terminate the Employee’s employment under this Agreement with immediate effect without notice or PILON and with no liability to make any further payment to the Employee (other than in respect of such salary as shall have accrued at the Termination Date and payment in respect of accrued but untaken holiday entitlement ) if in the reasonable opinion of the Board the Employee: |
22.1.1 | is guilty of gross misconduct; or |
22.1.2 | commits any serious or repeated breach or non-observance of any of the provisions of this Agreement or refuses to comply with any reasonable and lawful directions of the Company; or |
22.1.3 | is grossly negligent or grossly incompetent in the performance of their duties; or |
22.1.4 | is declared bankrupt or has a receiving order made against them or makes any general composition with their creditors or takes advantage of any statute affording relief for insolvent debtors ; or |
22.1.5 | is convicted of any criminal offence (other than an offence under any road traffic legislation in the United Kingdom or elsewhere for which a fine or non-custodial penalty is imposed); or |
22.1.6 | is disqualified from acting as a director or resigns as a director from the Company or any Group Company without the prior written approval of the Board; or |
22.1.7 | commits any material breach of the Company’s policies or procedures; or |
22.1.8 | is no longer eligible to work in the United Kingdom; or |
22.1.9 | is guilty of any fraud or dishonesty or acts in any manner which brings or is likely to bring the Employee or any Group Company into disrepute or is materially adverse to the interests of any Group Company; or |
22.1.10 | commits a breach of any legislation in force which may affect or relate to the business of the Company or any Group Company; or |
22.1.11 | is guilty of a serious breach of any professional conduct rules applicable to the Employee, the rules of any regulatory authorities relevant to the Company or any Group Company or any code of practice or policy issued by the Company (as amended from time to time); or |
22.1.12 | refuses or fails to agree to accept employment on the terms and in the circumstances specified in clause 28.1; or |
22.1.13 | is in material breach of the articles of association of the Company and/or any shareholders’ or investment agreement in place in relation to the Company from time to time. |
22.2 | The rights of the Company under clause 22.1 are without prejudice to any other rights that it might have at law to terminate the Employee’s employment or to accept any breach of this Agreement by the Employee as having brought the Agreement to an end. Any delay by the Company in exercising it rights to terminate shall not constitute a waiver thereof. |
22.3 | The Company may suspend the Employee from any or all of the Employee’s duties during any period in which the Company is investigating any disciplinary matter involving the Employee or while any disciplinary procedure or regulatory investigation is outstanding. Any such suspension shall not constitute disciplinary action. During any period of suspension, the Company may impose the same conditions that apply to Garden Leave. |
23. | Garden Leave |
23.1 | Following service of notice to terminate the employment by either party, or if the Employee purports to terminate the employment in breach of contract, the Company may by written notice place the Employee on Garden Leave for the whole or part of the remainder of the employment. |
23.2 | During any period of Garden Leave: |
23.2.1 | the Company shall be under no obligation to provide any work to the Employee and may revoke any powers the Employee holds on behalf of any Group Company; |
23.2.2 | the Company may require the Employee to carry out alternative duties or to only perform such specific duties as are expressly assigned to the Employee, at such location (including the home of the Employee) as the Board may reasonably decide; |
23.2.3 | the Company may appoint another person to carry out the Employee’s normal duties; |
23.2.4 | the Employee shall continue to receive their basic salary (or such other pay as would have been paid had the employee not been put on garden leave such as sick pay) but shall not be entitled to receive any bonus or other incentive in respect of the period of Garden Leave; |
23.2.5 | the Employee shall remain an employee of the Company and bound by the terms of this Agreement (including any implied duties of good faith and fidelity); |
23.2.6 | the Employee shall be contactable during each working day (except during any periods taken as holiday in the usual way) and make themselves available to deal with requests for information, to provide assistance, to attend meetings and to advise on matters relating to any Group Company; |
23.2.7 | the Company may exclude the Employee from any premises of any Group Company, require the Employee to return any Group Company property and remove the Employee’s access from some or all of its information systems; |
23.2.8 | the Company may require the Employee not to contact or deal with (or attempt to contact or deal with) any officer, employee, consultant, client or other business contact of any Group Company as it may reasonably determine; |
23.2.9 | the Employee shall not commence any other employment or engagement (including taking up any directorships or consultancy services); |
23.2.10 | the Employee hereby agrees that upon request he will take any accrued but untaken holiday; and |
23.2.11 | the Employee shall provide such assistance as the Company or any Group Company may require to effect an orderly handover of their responsibilities to any individual or individuals appointed by the Company or any Group Company to take over their role or responsibilities. |
24. | Obligations Upon Termination |
24.1 | On Termination or, if earlier, at the start of a period of Garden Leave following the service of notice or purported Termination by the Employee, the Employee shall: |
24.1.1 | immediately deliver to the Company all property belonging to the Company; |
24.1.2 | immediately deliver to the Company all documents, books, materials, records, correspondence, papers, Copies, Confidential Information and other business information (on whatever media and wherever located) relating to the business or affairs of any Group Company or its business contacts, any keys and any other property of any Group Company, which is in the Employee’s possession or control; |
24.1.3 | irretrievably delete any information relating to the business of any Group Company stored on any magnetic or optical disk or memory (including on any personal computer, personal device, personal email account or web account), and all matter derived from such sources which is in their possession or under their control outside the premises of the Company; |
24.1.4 | immediately resign, without any claim for compensation, from any directorships or offices in any Group Company unless requested otherwise by the Company; |
24.1.5 | provide the Company with any information, advice or reasonable assistance it requires in respect of their employment or its termination; and |
24.1.6 | provide a signed statement confirming full compliance with the obligations under clauses 24.1.1 and 24.1.3 together with such reasonable evidence of compliance as the Company may request. |
25. | Post Termination Restrictions |
Schedule 1 shall take effect.
26. | Statutory Particulars |
26.1 | The Employee is subject to the Company's disciplinary and grievance procedures, copies of which are available from the Board, although the Board reserves the right to deviate from these procedures in light of the Employee’s seniority and length of service. These procedures do not form part of the Employee's contract of employment. |
26.2 | If the Employee wishes to raise a grievance or appeal a disciplinary decision the matter should be raised in writing with the Board. |
26.3 | There is no collective agreement which affects the Employee’s employment or this Agreement. |
26.4 | The Company does not impose any mandatory training requirements in relation to the Employee. |
26.5 | The Company intends to comply with its statutory obligations regarding time off from work for example relating to family leave (including maternity, paternity and parental), domestic incident leave, jury and military service. There is no right to paid time (except to the extent required by law) but the Company may exercise its discretion in relation to short term absences. Any enhancement to the statutory payments offered by the Company will be contained in the relevant Company policy as it applies at the relevant time and may be removed or amended from time to time at the Company’s discretion. |
27. | Workplace Privacy |
27.1 | The Employee confirms that they have read and understood the Company’s Privacy Notice which is available on request. |
27.2 | The Employee understands that the Company may monitor the Employee’s communication and electronic equipment including, without limitation, the Company's telephone, chat and e-mail systems, information stored on the Company's computer equipment (including all electronically stored information that is the property of the Company), recordings from the Company's closed circuit television cameras and all electronically stored information that is the property of the Company and is stored on personal devices owned by the Employee and used for the performance of their duties. For the avoidance of doubt, the Company is not permitted to monitor electronically stored information that is not the property of the Company which is stored on a device owned by the Employee. |
27.3 | For the purposes of this clause 27.3, the terms "personal data", "special category personal data" and "processing" have the meaning given in the General Data Protection Regulation (EU) 2016/679 (GDPR). |
27.3.1 | The Company may transfer to the Employee (or allow the Employee to access) certain information relating to the Company or a Group Company containing personal data (including but not limited to personal data relating to any employee, worker, customer, client, supplier, or agent of the Company or any Group Company (the "Company Personal Data")). |
27.3.2 | The Employee shall comply with any Company data protection policy in place from time to time when handling any Company Personal Data. |
27.4 | The Employee shall process Company Personal Data only as required to perform their duties, or as required by applicable law. |
27.5 | Unless required by applicable law, the Employee shall not retain or process Company Personal Data for longer than is necessary to perform their duties hereunder, and (notwithstanding the generality of clause 24) following termination of this Agreement, or at any time on request from the Company, the Employee shall promptly delete or destroy all Company Personal Data and certify in writing to the Company that they have done so. |
27.6 | If the Employee becomes aware of a breach of security leading to the accidental or unlawful destruction, loss, alteration, unauthorised disclosure of, or access to, Company Personal Data (a "Security Incident"), the Employee shall promptly notify the Company and cooperate with the Company's investigation of the Security Incident. At all times, the Employee shall have in place and maintain appropriate security measures to protect the Company Personal Data against Security Incidents. |
27.7 | The Employee shall use all reasonable endeavours to keep the Company informed of any changes to their personal data. |
28. | General |
28.1 | If the Employee’s employment is terminated at any time by reason of any reconstruction or amalgamation of any Group Company, whether by winding up or otherwise, and the Employee is offered employment with any concern or undertaking involved in or resulting from the reconstruction or amalgamation on terms which (considered in their entirety) are no less favourable to any material extent than the terms of this Agreement, the Employee acknowledges and agrees that there shall be no claim against the Company or any undertaking arising out of or connected with such termination. |
28.2 | If the Employee shall at any time have been offered but shall have unreasonably refused or failed to agree to the transfer of this agreement by way of novation to a Group Company or any company which has agreed to acquire, directly or indirectly, 50 per cent of the share capital of the Company, the Company may terminate the Employee’s employment under this Agreement by such notice as is required by section 86 of the Employment Rights Act 1996 given within one month of such offer. |
28.3 | The Employee will, at the request of the Company at any time after the Termination Date, co-operate and provide assistance to any Group Company in any internal investigation, administrative, regulatory, quasi-judicial proceedings or any threatened or actual litigation concerning any Group Company where the Employee is aware of any facts or other matters which the Company reasonably considers is relevant to such process or legal proceedings. |
28.4 | This clause applies if the Employee subscribes for or is awarded shares in the Company or any Group Company or participates in any share option, restricted share, restricted share unit, long term incentive, carried interest, co-invest or any other form of profit sharing,incentive, bonus or equity plan or arrangement (each, an "Incentive") or may do so. Upon Termination, the Employee's rights (if any) in respect of each Incentive shall be solely determined by the articles of association, rules or other documents governing each Incentive which are in force on the Termination Date and the Employee hereby irrevocably waives all claims or rights of action in respect of the loss of any rights or benefits under or in respect of any Incentive granted or not yet granted to the Employee (including any loss relating to the lapse of, or their ineligibility to exercise, any share options, the value of any shares, the operation of any compulsory transfer provisions or the operation of any vesting criteria). |
28.5 | A notice given to a party under this Agreement shall be in writing in the English language and signed by or on behalf of the party giving it. It shall be delivered by hand or sent to the party at the address given for that party in this Agreement, in the case of the Employee to their personal email address or as otherwise notified in writing to the other party. A notice given by email shall be deemed to take effect one hour after it is sent, a notice sent by first class post shall be deemed to take effect on the next working day and notice sent by courier upon delivery at the address in question. A notice required to be given to the Company under this Agreement shall not be validly given if sent by email. |
28.6 | This Agreement and any document referred to in it constitutes the entire agreement between the parties and supersedes and extinguishes all previous discussions, correspondence, negotiations, drafts, agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter, including the Employee’s offer letter. |
28.7 | If any provision of this Agreement (including without limitation the provisions contained in Schedule 1) shall be found by any court or administrative body of competent jurisdiction to be invalid or unenforceable, such invalidity or unenforceability shall not affect the other provisions of this Agreement which shall remain in full force and effect. If any provision of this Agreement (including without limitation the provisions contained in Schedule 1) is so found to be invalid or unenforceable but would be valid or enforceable if some part of the provision were deleted, the provision in question shall apply with such modifications as may be necessary to make it valid. |
28.8 | The Employee agrees that in entering into this Agreement the Employee does not rely on and shall have no remedies in respect of, any statement, representation, assurance or warranty (whether made innocently or negligently) that is not expressly set out in this Agreement. The Employee waives any claim for innocent or negligent misrepresentation or negligent misstatement including in respect of any statement set out in this Agreement. Nothing in this clause shall operate to exclude liability for any fraud. |
28.9 | No variation or agreed termination of this Agreement shall be effective unless it is in writing and signed by the parties (or their authorised representatives) save that the Company may amend the terms of this Agreement by notifying the Employee that it is exercising its right to do so. |
28.10 | The Employee shall not be contractually entitled to receive any benefit from the Company which is not expressly provided for by this Agreement. |
28.11 | This Agreement may be executed in any number of counterparts, each of which, when executed and delivered, shall be an original, and all the counterparts together shall constitute one and the same agreement. |
28.12 | The Contracts (Rights of Third Parties) Act 1999 shall only apply to this Agreement in relation to any Group Company. No person other than the parties to this Agreement and any Group Company shall have any rights under it and it will not be enforceable by any person other than those parties. |
28.13 | This Agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the law of England. |
28.14 | Each party irrevocably agrees that the courts of England shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this Agreement or its subject matter or formation (including non-contractual disputes or claims). |
28.15 | The Company accepts the benefits in this agreement on its own behalf and on behalf of all Group Companies. The Company shall be entitled to assign its rights and those of other Group Companies in connection with this agreement to any other Group Company at any time with immediate effect on giving written notice to the Employee. |
Executed and delivered as a Deed by the Employee and by the Company on the date stated at the beginning of this Agreement.
Signed as a deed by SANDEEP KULKARNI | /s/ Sandeep Kulkarni | |
for and on behalf of ZURA BIO LIMITED | Signature | |
in the presence of: |
/s/ Viju Kulkarni | ||
Witness’s Signature | ||
Name of witness | Viju Kulkarni | |
Address of witness | 5141 Montessa St. | |
San Diego, CA 92124 | ||
Occupation of witness | Professor | |
Signed as a deed by OLIVER JACOB LEVY | /s/ Oliver Jacob Levy | |
in the presence of: | Signature | |
/s/ Jennifer Johnson | ||
Witness’s Signature | ||
Name of witness | Jennifer Johnson | |
Address of witness | 24B Randolph Crescent | |
London, W9 1DR. | ||
Occupation of witness | Investor Relations |
SCHEDULE 1
POST TERMINATION RESTRICTIONS
(1) | In this Schedule, the following terms not otherwise defined in the Agreement shall have the following meanings unless the context requires otherwise: |
“Collaboration” any commercial arrangement, cooperation, association, partnership, sponsorship, joint enterprise or venture or referral or intermediary relationship.
“Competing Business” any business concern, entity or person whose business or work relates (in whole or in part) to any product or treatment which targets IL7R.
“Key Partner” any firm, person or entity which was in Collaboration with, the Company or any Group Company in each case during the Look Back Period and:
(a) | with whom the Employee personally dealt to any material extent; or |
(b) | about which the Employee was privy to Confidential Information. |
"Look Back Period" the period of 12 months before the Termination Date or Garden Leave if earlier;
“Other Person” any person who is/was employed or engaged by any Group Company at any time in the six (6) months prior to the Termination Date with whom the Employee worked closely at any time in the twelve months before that person left and who carried out work for or on behalf of any Group Company:
(a) | in a senior capacity or who has material technical or sector knowledge or who is a key person; and/or |
(b) | who could materially damage the interests of any Relevant Company whether as a result of leaving on their own or as a result of leaving in conjunction with others; |
"Restricted Person" anyone employed or engaged by or otherwise working for the benefit of the Company or any Group Company who is employed/engaged in a senior capacity or who has material technical or sector knowledge or who is a key person or whose departure or employment/engagement by another firm, person or entity may otherwise materially damage the business or interests of the Company or any Group Company and, in each case, either:
(a) | with whom the Employee personally dealt to any material extent; or |
(b) | about whom the Employee was privy to Confidential Information, |
in each case during the Look Back Period.
“Restricted Supplier”, any person, firm, company or other entity or third person who was a supplier of equipment, products, services or information to the Company or any Group Company as at the Termination Date:
(a) | with whom the Employee personally dealt to any material extent; or |
(b) | about which the Employee was privy to Confidential Information, |
in each case during the Look Back Period.
(2) | In order to protect the Confidential Information, trade secrets and business connections of the Company and each Group Company to which the Employee has access as a result of the employment, the Employee covenants with the Company (for itself and as trustee and agent for each Group Company) that the Employee shall not: |
(a) | for six (6) month(s) after the Termination Date, in the course of any business concern, offer to employ or engage or otherwise endeavour to entice away from the Company or any other Group Company any Restricted Person where this would cause the Restricted Person to cease or reduce their commitment to the Company or the relevant Group Company or where it relates to a Competing Business; or |
(b) | for six (6) month(s) after the Termination Date, in the course of any business concern employ or engage or otherwise facilitate the employment or engagement of any Restricted Person, whether or not such person would be in breach of contract as a result of such employment or engagement where this would cause the Restricted Person to cease or reduce their commitment to the Company or the relevant Group Company or where it relates to a Competing Business; or |
(c) | for six (6) month(s) after the Termination Date, in the course of any business concern, deal or transact business with or enter into any form of Collaboration with any Key Partner or Restricted Supplier of the Company or any Group Company that, in each case, has the purpose or effect of interfering with, damaging or reducing the extent, scope or value to the Company or relevant Group Company of that Key Partner’s Collaboration or relationship as Restricted Supplier with it or them, as applicable or where it relates to a Completing Business; |
(d) | for six (6) month(s) after the Termination Date, be engaged, concerned or interested in any undertaking in conjunction with any Other Person (whether or not such person would breach their contract of employment) where such actions would materially damage the interests of the Company or any Group Company; or |
(e) | for six (6) month(s) after the Termination Date, be employed by, work for the benefit of, be engaged by, interested in or concerned with any business concern, entity or person which is (or intends to be) a Competing Business. |
(3) | The Employee covenants with the Company (for itself and as trustee and agent for each Group Company) that the Employee shall not at any time after the Termination Date, represent any connection with any Group Company in any Capacity, other than as a former employee, or use any registered business names or trading names associated with any Group Company. |
(4) | None of the restrictions in this Schedule shall prevent the Employee from: |
(a) | holding a Permitted Investment |
(b) | being engaged or concerned in any business concern insofar as his or her duties or work shall relate solely to geographical areas where the business concern is not in competition with any Restricted Business; or |
(c) | being engaged or concerned in any business concern, provided that their duties or work shall relate solely to services or activities of a kind with which they were not concerned to a material extent in the Lookback Period. |
(5) | The restrictions imposed on the Employee by this Schedule apply to the Employee acting: |
(a) | directly or indirectly; and |
(b) | in any Capacity, on their own behalf or on behalf of, or in conjunction with, any firm, company or person. |
(6) | The periods for which the restrictions in paragraph (2) above apply shall be reduced by any period that the Employee spends on Garden Leave immediately before the Termination Date. |
(7) | The Employee agrees to enter into the restrictions in this Schedule in consideration for the Company agreeing to employ them on the terms contained in this Agreement. |
(8) | If the Employee receives an offer to be involved in a business concern in any Capacity during employment, or before the expiry of the restrictions set out in paragraph (2) above, the Employee shall give the person making the offer a copy of this Schedule and shall tell the Company the identity of that person as soon as possible after accepting the offer. |
(9) | Each sub-paragraph of paragraph (2), each definition set out in this Schedule, each limb of each such definition and each operative word within each sub-paragraph or definition is agreed to be a separate and severable restriction, notwithstanding that they are combined together for the sake of brevity. The parties agree that if any such restrictions shall be held to be void but would be valid if part of: (a) the wording of such restriction were deleted, such restriction shall apply with such deletion (including but not limited to a single word or words) as may be necessary to make it valid or effective; and (b) the wording of any definition were deleted, such restriction shall apply with such deletion as may be necessary to make it valid or effective but the deletion in that definition shall not apply to any other restriction, so that each definition is deemed to be repeated each time it is used. |
(10) | If the employment of the Employee is transferred to any firm, company, person or entity other than a Group Company (the "New Employer") pursuant to the Transfer of Undertakings (Protection of Employment) Regulations 2006, the Employee will, if required, enter into an agreement with the New Employer containing post termination restrictions corresponding to those restrictions in this Schedule, protecting the confidential information, trade secrets and business connections of the New Employer. |
(11) | The Employee enters into each of the restrictions in this Schedule for the benefit of the Company on its own behalf and as trustee for each Group Company. The Employee will, at the request and expense of the Company, enter into a separate agreement with any Group Company in which the Employee agrees to be bound by restrictions corresponding to those restrictions in this Schedule in relation to that Group Company. |
(12) | The Employee has had the opportunity to obtain legal advice on the terms of this Agreement. The Employee acknowledges that the restrictions are necessary to protect the legitimate interests of the Group and are reasonable in scope and duration. |
(13) | The Employee acknowledges that if the Employee breaches the restrictions set out in this Schedule the Company will suffer irreparable loss, damages will not be an adequate remedy and the Company should be entitled to injunctive relief. |
SCHEDULE 2
OUTSIDE INTERESTS
Name of Company | Sector
and nature of business |
Employees
interest in company |
Time
commitment and other material facts |
MarchHarvey Ltd | Financial Advisory, regulated advisory business | 100% | Variable; ongoing |
BZ Ventures LLC | Investment biotech fund | PSC | Limited; ongoing |
Exhibit 10.22
EXECUTION VERSION
CONFIDENTIAL
CERTAIN IDENTIFIED INFORMATION HAS BEEN EXCLUDED FROM THIS EXHIBIT BECAUSE IT IS
BOTH (I) NOT MATERIAL AND (II) THE TYPE THAT THE REGISTRANT NORMALLY TREATS AS
PRIVATE AND CONFIDENTIAL.
LICENSE, DEVELOPMENT AND COMMERCIALIZATION AGREEMENT
DATED AS OF DECEMBER 8, 2022
BY AND BETWEEN
ELI LILLY AND COMPANY
AND
Z33 BIO INC.
TABLE OF CONTENTS
Page | ||
ARTICLE 1 DEFINITIONS | 1 | |
ARTICLE 2 LICENSES | 15 | |
2.1 | Grant to Licensee | 15 |
2.2 | Additional Licensing Provisions | 15 |
2.3 | Performance by Affiliates and Sublicensees | 16 |
2.4 | Restrictive Covenants | 17 |
2.5 | Right of First Negotiation | 17 |
2.6 | Data Transfer | 18 |
2.7 | Material Transfer | 18 |
2.8 | Technology Transfer | 19 |
2.9 | Lilly Programs | 19 |
ARTICLE 3 DEVELOPMENT | 20 | |
3.1 | Overview of Development | 20 |
3.2 | Objectives under the Development Plan | 20 |
3.3 | Development Plan | 21 |
3.4 | Development Costs | 21 |
3.5 | Records, Reports and Information | 21 |
3.6 | Ownership of Development Data | 22 |
3.7 | Development Diligence Failures | 22 |
ARTICLE 4 REGULATORY | 22 | |
4.1 | Regulatory Data and Regulatory Materials | 22 |
4.2 | Regulatory Filings and Regulatory Approvals | 23 |
4.3 | No Other Regulatory Filings | 23 |
4.4 | Pharmacovigilance and Medical Inquiries | 24 |
4.5 | Regulatory Authority Communications Received by a Party | 24 |
4.6 | Recall, Withdrawal, or Market Notification of Product | 25 |
4.7 | Regulatory Diligence | 25 |
ARTICLE 5 COMMERCIALIZATION | 25 | |
5.1 | Commercialization in the Field in the Territory | 25 |
5.2 | Licensee’s Performance | 25 |
5.3 | Reports | 26 |
5.4 | Promotional Materials | 26 |
5.5 | Product Trademarks and Product Trade Dress | 27 |
5.6 | Commercialization Data | 27 |
ARTICLE 6 MANUFACTURING | 28 | |
6.1 | General | 28 |
6.2 | Manufacturing | 28 |
6.3 | Packaging and Labeling; Certain Other Manufacturing Activities | 28 |
i
ii
iii
TABLE OF SCHEDULES AND APPENDICES
Schedule A | Compounds |
Schedule B | Licensed Patents |
Schedule C | Technical Information, Materials, Processes and Regulatory Filings |
Schedule D | Lilly Animal Care and Use Requirements |
Schedule E | Initial Development Plan |
iv
LICENSE, DEVELOPMENT AND COMMERCIALIZATION AGREEMENT
This License, Development and Commercialization Agreement (this “Agreement”), dated as of December 8, 2022 (the “Effective Date”), is made by and between Eli Lilly and Company, an Indiana corporation (“Lilly”), and Z33 Bio Inc., a Delaware corporation, having its principal place of business at MWE Corporate Services, LLC, 1007 N. Orange St., 10th Fl., Wilmington, Delaware 19801, USA (“Licensee”). Lilly and Licensee are sometimes referred to herein individually as a “Party” and collectively as the “Parties.”
RECITALS
WHEREAS, Lilly developed a certain compound relating to IL-33 as further described herein;
WHEREAS, Lilly wishes to grant a license to Licensee under certain Lilly intellectual property rights related to such Compound (as defined below) to develop, manufacture and commercialize the Product in the Field in the Territory, as more fully set forth herein, and Licensee wishes to take such license, in each case in accordance with the terms and conditions set forth below.
NOW, THEREFORE, in consideration of the foregoing premises and the mutual promises, covenants and conditions contained in this Agreement, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged and agreed, the Parties agree as follows:
ARTICLE 1
DEFINITIONS
As used in this Agreement, the following initially capitalized terms shall have the meanings set forth in this Article 1:
1.1 “Active Component” means a component that confers a therapeutic effect on a standalone basis.
1.2 “Affiliate” means any entity directly or indirectly controlled by, controlling or under common control with a Person, but only for so long as such control shall continue. For purposes of this definition, “control” (including, with correlative meanings, “controlled by,” “controlling” and “under common control with”) means (a) possession, direct or indirect, of the power to direct or cause direction of the management or policies of an entity (whether through ownership of securities or other ownership interests, by contract or otherwise), or (b) beneficial ownership of more than 50% (or the maximum ownership interest permitted by Applicable Law) of the voting securities or other ownership or general partnership interest (whether directly or pursuant to any option, warrant or other similar arrangement) or other comparable equity interests of an entity.
1.3 “Analytical Release Testing and Characterization” means all activities associated with carrying out the analytical testing and release of the Product in the Territory. Such activities shall include: transferring test methods, developing and validating new analytical tests required in the Territory, amending the release specifications to be in compliance with local Applicable Laws, conducting the release testing of the Product in the Territory and final release of the Product (including any of its raw materials, intermediates, drug substance and drug product).
1.4 “Applicable Law” means any applicable United States federal, state or local, or foreign or multinational law (including data protection and privacy laws), statute, standard, ordinance, code, rule, regulation, resolution or promulgation, or any order, writ, judgment, injunction, decree, stipulation, ruling, determination or award entered by or with any Governmental Authority, or any license, franchise, permit or similar right granted under any of the foregoing, or any similar provision having the force or effect of law. For the avoidance of doubt, any specific references to any Applicable Law or any portion thereof shall be deemed to include all then-current amendments thereto or any replacement or successor law, statute, standard, ordinance, code, rule, regulation, resolution, order, writ, judgment, injunction, decree, stipulation, ruling or determination thereto.
1.5 “Business Day” means a day other than a Saturday, Sunday, or bank or other public holiday in New York, New York, Indianapolis, Indiana, United States, or London, United Kingdom.
1.6 “Calendar Quarter” means each three (3)-month period commencing January 1, April 1, July 1 or October 1 of any year; provided, however, that (a) the first Calendar Quarter of the Term shall extend from the Effective Date to the end of the first full Calendar Quarter thereafter and (b) the last Calendar Quarter of the Term shall end upon the expiration or termination of this Agreement.
1.7 “Calendar Year” means the period beginning on January 1 and ending on December 31 of the same year; provided, however, that (a) the first Calendar Year of the Term shall extend from the Effective Date through December 31 of the same year and (b) the last Calendar Year of the Term shall commence on January 1 of the Calendar Year in which this Agreement terminates or expires and end on the date of expiration or termination of this Agreement.
1.8 “Clinical Trial” means a Phase I Clinical Trial, Phase II Clinical Trial (including a Phase IIa Clinical Trial and Phase IIb Clinical Trial), Phase III Clinical Trial, a Phase IIIb Clinical Trial or a Phase IV Clinical Trial, as the case may be.
1.9 “Combination Product” means (a) any product containing the Product and one or more other Active Components in a fixed-dose formulation, or (b) any combination of the Product sold together with another product containing an Active Component in a single package or container for a single price.
1.10 “Commercialize” means to promote, market, distribute, sell (and offer for sale or contract to sell), import, export, or otherwise commercially exploit or provide product support for the Product and to conduct activities, other than Development or Manufacturing, in preparation for conducting the foregoing activities, including activities to produce commercialization support data and to secure and maintain market access and reimbursement. “Commercializing” and “Commercialization” shall have correlative meanings. For the avoidance of doubt, Commercialization does not include Development or Manufacturing.
2
1.11 “[***]”
1.12 “Common Stock” means the common stock of Licensee, par value $0.001 per share.
1.13 “Competing Product” means, with respect to the Compound or Product, any compound or product with the same or substantially similar mechanism of action as such Compound or Product.
1.14 “Compound” means [***]
1.15 “Control” and “Controlled by” means, with respect to any Know-How, Invention, Patent, technology, copyright, trademark or other intellectual property right, a Person’s possession (whether by ownership, license grant or other means) of the legal right to grant the right to access or use, or to grant a license or a sublicense to, such Know-How, Invention, Patent Right, technology, copyright, trademark or other intellectual property right as provided for herein without violating the proprietary rights of any Third Party or any terms of any agreement or other arrangement between such Person (or any of its Affiliates) and any Third Party.
1.16 “CTA” means an application to the applicable Regulatory Authority, such as a clinical trial application or a clinical trial exemption, the filing of which is necessary to commence or conduct clinical testing of a pharmaceutical product in humans in such jurisdiction.
1.17 “Designated Officer” means a representative appointed by a Party for purposes of dispute resolution.
1.18 “Develop” means to research, develop, analyze, test and conduct preclinical trials, Clinical Trials (including, for the avoidance of doubt, Phase IV Clinical Trials and any preclinical/clinical/CMC commitments following Regulatory Approval) and all other regulatory trials, for the Compound and Product, as well as any and all activities pertaining to manufacturing development, formulation development, medical affairs and lifecycle management (including the conduct of Phase IIIb Clinical Trials and Phase IV Clinical Trials not explicitly for registrational purposes and non-interventional studies), including new indications, new formulations and all other activities, including regulatory activities, related to securing and maintaining Regulatory Approval, for the Compound and Product, all in accordance with the Development Plan. “Developing” and “Development” shall have correlative meanings.
1.19 “Development Activities” means those Development activities undertaken by or on behalf of Licensee with respect to the Product in the Field in the Territory.
1.20 “Dollar” or “$” means the legal tender of the United States of America.
1.21 “Equity Securities” means (a) capital stock or other equity interests in Licensee that are issued and outstanding, (b) obligations, evidences of indebtedness or other securities or interests convertible or exchangeable into capital stock or other equity interests in Licensee and (c) warrants, options or other rights to purchase or otherwise acquire capital stock or other equity interests in Licensee, vested or unvested.
3
1.22 “Exclusivity Period” means the period beginning on the Effective Date and ending [***].
1.23 “FD&C Act” means the U.S. Federal Food, Drug and Cosmetic Act, as amended, and the regulations promulgated thereunder.
1.24 “FDA” means the United States Food and Drug Administration and any successor Regulatory Authority having substantially the same function.
1.25 “Field” means all uses including any and all human therapeutic, diagnosis, prevention, amelioration and prophylactic uses.
1.26 “First Commercial Sale” means, with respect to the Product in any country in the Territory, the first shipment of the Product to a Third Party in such country for end use or consumption of the Product in such country after Regulatory Approval of the Product in such country or, if earlier, the invoicing of a Third Party for such shipment.
1.27 “[***]”
1.28 “Force Majeure” means any circumstances whatsoever which are not within the reasonable control of the Party affected thereby, including any such act of God, war, act of terrorism, pandemic, insurrection, riot, strike or labor dispute, shortage of materials, fire, explosion, flood, government requisition or allocation, breakdown of or damage to plant, equipment or facilities, interruption or delay in transportation, fuel supplies or electrical power, embargo, boycott, order, or act of civil, military, or other Governmental Authority.
1.29 “Fully-Diluted Capital Stock” means, the sum of (i) the number of shares of Common Stock underlying all Equity Securities of Licensee (including, for the avoidance of doubt, shares of Common Stock issuable upon exercise or conversion of Equity Securities, and regardless of whether the Equity Securities are vested or unvested) and (ii) any shares of Common Stock reserved for issuance pursuant to any stock option, restricted stock or other equity-based incentive plan.
1.30 “Generic Product” means, with respect to a Product with a single active pharmaceutical ingredient, and with respect to a particular country, a pharmaceutical product that (a) contains the Compound, (b) is approved for use in such country pursuant to a Regulatory Approval process governing approval of generic, interchangeable, or biosimilar biologics based on the then-current standards for Regulatory Approval in such country, whether or not such Regulatory Approval was based upon clinical data generated by one or more parties pursuant to this Agreement or was obtained using an abbreviated, expedited, or other process, and (c) is sold in the same country as such Product by any Third Party that is not a Related Party and did not purchase such product directly or indirectly from any of Licensee or its Related Parties. A Product shall not constitute a Generic Product under this Agreement with respect to any other Product.
4
1.31 “Good Clinical Practices” or “GCP” means all applicable Good Clinical Practice standards for the design, conduct, performance, monitoring, auditing, recording, analyses and reporting of clinical trials, including, as applicable, (a) as set forth in the International Conference on Harmonisation of Technical Requirements for Registration of Pharmaceuticals for Human Use (“ICH”) Harmonised Tripartite Guideline for Good Clinical Practice (CPMP/ICH/135/95) and any other guidelines for good clinical practice for trials on medicinal products in the Territory, (b) the Declaration of Helsinki (2004) as last amended at the 52nd World Medical Association in October 2000 and any further amendments or clarifications thereto, (c) U.S. Code of Federal Regulations Title 21, Parts 50 (Protection of Human Subjects), 56 (Institutional Review Boards) and 312 (Investigational New Drug Application), as may be amended from time to time, and (d) the equivalent Applicable Laws in any relevant country, each as may be amended and applicable from time to time and in each case, that provide for, among other things, assurance that the clinical data and reported results are credible and accurate and protect the rights, integrity and confidentiality of trial subjects.
1.32 “Good Laboratory Practices” or “GLP” means the then-current standards for laboratory activities for pharmaceuticals, as set forth in the FDA’s Good Laboratory Practice regulations as defined in 21 C.F.R. Part 58, the Council Directive 87/18/EEC, as amended, the principles for Good Laboratory Practice and/or the Good Laboratory Practice principles of the Organization for Economic Co-Operation and Development (“OECD”), and such standards of good laboratory practice as are required by the European Union and other organizations and governmental agencies in countries in which a Product is intended to be sold, to the extent such standards are not less stringent than United States Good Laboratory Practice.
1.33 “Good Manufacturing Practices” or “GMP” means all applicable current Good Manufacturing Practices including, as applicable, (a) the principles detailed in the U.S. Current Good Manufacturing Practices, 21 C.F.R. Parts 4, 210, 211, 601, 610 and 820, (b) European Directive 2003/94/EC and Eudralex 4, (c) the principles detailed in the WHO TRS 986 Annex 2, TRS 961 Annex 6, TRS 957 Annex 2 and TRS 999 Annex 2,(d) ICH Q7 guidelines, and (e) the equivalent Applicable Laws in any relevant country, each as may be amended and applicable from time to time.
1.34 “Government Official” means: (a) any officer or employee of: (i) a government, or any department, agency, or instrumentality thereof; (ii) a government-owned or -controlled company, institution or other entity, including a government-owned hospital or university; or (iii) a public international organization (such as the United Nations, the International Monetary Fund, the International Committee of the Red Cross, and the World Health Organization), or any department, agency, or instrumentality thereof; (b) any political party or party official or candidate for public or political party office; and (c) any person acting in an official capacity on behalf of any of the foregoing.
1.35 “Governmental Authority” means any United States federal, state or local, or any foreign government or political subdivision thereof, or any multinational organization or authority, or any authority, agency or commission entitled to exercise any administrative, executive, judicial, legislative, police, regulatory or taxing authority or power, any court or tribunal (or any department, bureau or division thereof), or any governmental arbitrator or arbitral body. For clarity, any Regulatory Authority shall be a Governmental Authority.
5
1.36 “IND” means an investigational new drug application, clinical trial authorization or similar application or submission for approval to conduct human clinical investigations filed with or submitted to a Regulatory Authority in conformance with the requirements of such Regulatory Authority.
1.37 “Indication” means any disease or condition that a product can be used to treat or prevent, which use is the subject of a separate Regulatory Approval.
1.38 “Initiation” means, with respect to a Clinical Trial, the first dosing of the first human patient in such Clinical Trial.
1.39 “Internal Compliance Codes” means a Party’s internal policies and procedures intended to ensure that a Party complies with Applicable Laws, Party-Specific Regulations, and such Party’s internal ethical, medical and similar standards.
1.40 “Invention” means any discovery or invention, whether or not patentable, conceived or otherwise made by or on behalf of either Party, or by both Parties, or, in each case, their respective Affiliates, under this Agreement.
1.41 “Know-How” means all technical, scientific, regulatory and other information, results, knowledge, techniques and data, in whatever form and whether or not confidential, patented or patentable, including Inventions, invention disclosures, discoveries, plans, processes, practices, methods, knowledge, trade secrets, know-how, instructions, skill, experience, ideas, concepts, data (including biological, chemical, pharmacological, toxicological, pharmaceutical, physical and analytical, safety, quality control, and preclinical and clinical data), formulae, formulations, compositions, specifications, marketing, pricing, distribution, cost, sales and manufacturing data or descriptions. Know-How does not include any Patent claiming any of the foregoing.
1.42 “Licensed Know-How” means all Know-How, whether or not patented or patentable, to the extent Controlled by Lilly or its Subsidiaries and that is set forth on Schedule C. For the avoidance of doubt, “Licensed Know-How” shall not include, and Licensee shall have no rights to use, any manufacturing technology or processes or device technology (including any cell-based media or any of its components) or processes, or any other technology of Lilly and its Affiliates (other than Lilly and its Subsidiaries as of the Effective Date).
1.43 “Licensed Patents” means [***].
1.44 “Licensed Technology” means the Licensed Know-How and Licensed Patents.
1.45 “Licensee Know-How” means any and all Know-How, whether or not patented or patentable, to the extent Controlled by, or on behalf of, Licensee or its Affiliates as of the Effective Date or at any time during the Term that is necessary or reasonably useful in connection with the Development, Manufacture, Commercialization or other use of the Compound or Product.
1.46 “Licensee Patent” means [***].
1.47 “Licensee Technology” means the Licensee Know-How and Licensee Patents.
6
1.48 “Major European Country” means, individually, [***], which collectively are the “Major European Countries.”
1.49 “Major Financing Completion” means [***].
1.50 “Major Financing Event” means (i) a sale, pledge, lease, transfer, assignment, license, conveyance or other disposition, in a single transaction or series of related transactions, of any assets or Subsidiaries of Licensee, (ii) a sale or transfer of any Equity Securities of Licensee or any of its subsidiaries or parent companies, including, without limitation, an initial public offering or a de-SPAC transaction, (iii) a merger, reorganization, or recapitalization of Licensee or any of its subsidiaries or parent companies (including, for the avoidance of doubt, a de-SPAC transaction), or (iv) any similar event or transaction as described in subsections (i) through (iii) herein, in each case, which results in Aggregate Gross Proceeds of at least [***] to Licensee and its Subsidiaries. “Aggregate Gross Proceeds” as used in this Agreement with respect to any Major Financing Event shall include all potential proceeds to be received in connection with such Major Financing Event, including, but not limited to, cash proceeds and the fair market value of other property or consideration received upon the closing of the Major Financing Event, any escrow or indemnification reserves, any and all future or deferred consideration in the form of earnouts, fees (including, but not limited to, license fees), milestone payments (contingent or otherwise), contingent value rights or any other future or contingent payments (excluding any royalties), in each case, undiscounted, and regardless of the timing or probability of receiving such proceeds, calculated based on the maximum face value of the proceeds on the effective date of the closing of the Major Financing Event. For the avoidance of doubt, by way of example, a contingent value right for [***], which may or may not be achieved, would not be discounted based on the probability of achievement, but rather [***] would be included in its entirety in the calculation of “Aggregate Gross Proceeds”. Additionally, and without limiting the foregoing, the aggregate value of any uncompensated services (or for any services provided below fair market value, the difference between the fair market value for such services and the amount paid therefor) or other in-kind contributions provided by any Affiliate or Third Party to Licensee, including pursuant to Section 2.3, shall be deemed Aggregate Gross Proceeds received by Licensee pursuant to one or a series of Major Financing Events.
1.51 “Manufacture” means the receipt, handling and storage of active pharmaceutical ingredients, drug substance or drug product, medical devices and other materials, the manufacturing, processing, packaging and labeling, holding (including storage), quality assurance and quality control testing (including release) of the Product (other than quality assurance and quality control related to development of the manufacturing process, which activities shall be considered Development activities) and shipping of the Product. “Manufactured” or “Manufacturing” shall have correlative meanings.
1.52 “Manufacturing Development Activities” means development of test methods, stability testing, formulation development, process development, quality assurance activities, quality control activities, qualification and validation activities, analytic process development, manufacturing process validation, scale-up, and all other activities, including CMC-related activities, necessary for or related to the Manufacture of the Product for use in the Field in the Territory.
7
1.53 “Marketing Authorization Application” or “MAA” means an application to the appropriate Regulatory Authority for approval to sell the Product (but excluding Pricing Approval) in any particular country or regulatory jurisdiction.
1.54 “Medical Science Liaison” means an individual who is employed by or on behalf of Licensee or its Affiliates and who provides educational services and other educational efforts directed towards the medical or scientific community.
1.55 “Milestone Payment” means any Development Milestone Payment, the Major Financing Event Milestone Payment or Product Sales Milestone Payment.
1.56 “Net Sales” means the gross amount invoiced by Licensee or a Related Party thereof to any Non-Related Party for the Product in the Territory, less the following items consistent with U.S. Generally Accepted Accounting Principles (“GAAP”) consistently applied (but only to the extent attributable to the Product and to the extent actually incurred, given, accrued or specifically allocated for)[***]:
In the event that the Product is sold as part of a Combination Product, the Net Sales of the Product, for the purposes of determining royalty payments, shall be determined by multiplying the Net Sales of the Combination Product (as defined in the standard Net Sales definition) by the fraction, A / (A+B) where A is the weighted average sale price of the Product when sold separately in finished form, and B is the weighted average sale price of the other compound(s) or ingredient(s) sold separately in finished form.
In the event that the weighted average sale price of the Product can be determined but the weighted average sale price of the other compound(s) or ingredient(s) cannot be determined, Net Sales for purposes of determining royalty payments shall be calculated by multiplying the Net Sales of the Combination Product by the fraction A / C where A is the weighted average sale price of the Product when sold separately in finished form and C is the weighted average sale price of the Combination Product.
In the event that the weighted average sale price of the other compound(s) or ingredient(s) can be determined but the weighted average sale price of the Product cannot be determined, Net Sales for purposes of determining royalty payments shall be calculated by multiplying the Net Sales of the Combination Product by the following formula: one (1) minus (B / C) where B is the weighted average sale price of the other compound(s) or ingredient(s) when sold separately in finished form and C is the weighted average sale price of the Combination Product.
In the event that the weighted average sale price of both the Product and the other compound(s) or ingredient(s) in the Combination Product cannot be determined, the Net Sales of the Product shall be deemed to be equal to the mutually agreed percentage of the Net Sales of the Combination Product; provided, that if the Parties are unable to agree on such relative value within 30 days of commencement of discussions with respect to such relative value, despite their good-faith efforts, then such dispute regarding the percentage shall, within 30 days, be referred to a panel of two (2) individuals, experienced in a field relevant to such a valuation exercise, comprising one expert selected by each of the Parties, who shall review and select between, without any modification thereto, one of the Parties’ proposals on the calculation of such percentage, and whose determination shall be final and binding on the Parties.
8
The weighted average sale price for a Product, other compound(s) or ingredient(s), or Combination Product shall be calculated once each Calendar Year and such price shall be used during all applicable royalty-reporting periods for the entire following Calendar Year. When determining the weighted average sale price of a Product, other compound(s) or ingredient(s), or Combination Product, the weighted average sale price shall be calculated by dividing the sales dollars (translated into Dollars) by the units of active ingredient sold during the twelve (12) months (or the number of months sold in a partial calendar year) of the preceding Calendar Year for the respective Product, other compound(s) or ingredient(s), or Combination Product. In the initial Calendar Year, a forecasted weighted average sale price will be used for the Product, other compound(s) or ingredient(s), or Combination Product. Any over or under payment due to a difference between forecasted and actual weighted average sale prices will be paid or credited in the first royalty payment of the following Calendar Year. Such amounts shall be determined from the books and records of Licensee or a Related Party maintained in accordance with GAAP, consistently applied. Licensee further agrees in determining such amounts, it will use and will require its Related Parties to use Licensee’s then-current standard procedures and methodology, including currency conversion as provided in Section 7.11.
For the avoidance of doubt, under no circumstances will Net Sales be reduced by any costs associated with marketing and promotional activities (even if such costs are appropriate reductions of Net Sales for financial reporting purposes in accordance with GAAP).
In no event shall any particular amount of deduction identified above be deducted more than once in calculating Net Sales (i.e., no “double counting” of deductions).
1.57 “Non-Related Parties” means, with respect to a Party, any Person that is not a Related Party of such Person.
1.58 “Party-Specific Regulations” means all judgments, decrees, orders or similar decisions issued by any Governmental Authority specific to a Party, and all consent decrees, corporate integrity agreements, or other agreements or undertakings of any kind by a Party with any Governmental Authority, in each case as the same may be in effect from time to time and applicable to a Party’s activities contemplated by this Agreement.
1.59 “Patent Rights” means Lilly’s rights in any subject matter claimed in any U.S. or foreign patent applications or patents that claim priority to any of the Licensed Patents.
1.60 “Patent Term Extension” means any term extensions, supplementary protection certificates, Regulatory Exclusivity and equivalents thereof offering Patent protection beyond the initial term with respect to any issued Patents.
1.61 “Patents” means any and all patent applications and issued patents.
1.62 “Person” means any individual, firm, corporation, partnership, limited liability company, trust, business trust, joint venture, Governmental Authority, association or other entity.
9
1.63 “Personal Information” means, in addition to any definition for any similar term (e.g., “personal data” or “personally identifiable information” or “PII”) provided by Applicable Laws, or by either Party in any of its own privacy policies, notices or contracts, all information that identifies, could be used to identify or is otherwise associated with an individual person, whether or not such information is associated with an identified individual person.
1.64 “Phase I Clinical Trial” means a human clinical trial in a country, the principal purpose of which is preliminary determination of the safety, metabolism and pharmacokinetic properties and clinical pharmacology of the Compound in healthy individuals or patients as described in 21 C.F.R. § 312.21(a), or similar clinical study in a country other than the U.S.
1.65 “Phase II Clinical Trial” means an adequate and well-controlled human clinical trial in a country, the principal purpose of which is a preliminary determination of the efficacy and safety of a Product for an indication in a target population of patients being studied, at the intended clinical dose or doses or range of doses, on a sufficient number of subjects and for a sufficient period of time to confirm the optimal manner of use of the Compound (dose and dose regimen) for such indication prior to initiation of the pivotal Phase III Clinical Trials for such indication as described in 21 C.F.R. §312.21(b), or similar clinical study in a country other than the U.S.
1.66 “Phase IIa Clinical Trial” means that part of the Phase II Clinical Trial designed to assess dosing requirements and efficacy of a Product. For the purposes of this Agreement, “completion of a Phase IIa Clinical Trial” means that stage of the Phase II Clinical Trial when the efficacy of a Product as specified in the Development Plan has been observed and properly recorded.
1.67 “Phase IIb Clinical Trial” means a clinical study subsequent to a Phase IIa Clinical Trial, specifically designed to include a comparison of a Product to an accepted standard of care in a larger number of patients which represents a more rigorous demonstration of the efficacy and safety of the Product in the target patient population to define the optimal regimen to evaluate in a Phase III Clinical Trial.
1.68 “Phase III Clinical Trial” means a human clinical trial of a compound or product for an indication on a sufficient number of subjects that is designed to establish that the compound or product is safe and efficacious for its intended use, and to determine warnings, precautions, and adverse reactions that are associated with the compound or product in the dosage range to be prescribed, and to support Regulatory Approval of the compound or product for such indication or label expansion of the compound or product as described in 21 C.F.R. §312.21(c), or similar clinical study in a country other than the U.S. For clarity, the term “Phase III Clinical Trials” includes early access and compassionate use programs.
1.69 “Phase IIIb Clinical Trial” means a human clinical trial of a compound or product for an indication that (a) is not required for receipt of Regulatory Approval for such indication for a country but which may be useful in providing additional drug profile data in support of such Regulatory Approval or, as applicable, Pricing Approval (whether the trial is commenced prior to or after receipt of such Regulatory Approval), or (b) is required, requested or advised by a Regulatory Authority as a condition of, or in connection with, obtaining or maintaining such Regulatory Approval (whether the trial is commenced prior to or after receipt of such Regulatory Approval).
10
1.70 “Phase IV Clinical Trials” means a human clinical trial, or other test or study, of a compound or product for an indication that is commenced after receipt of the initial Regulatory Approval for such indication in the country for which such trial is being conducted and that is conducted within the parameters of the Regulatory Approval for the compound or product for such indication (and which may include investigator sponsored clinical trials), including a clinical trial conducted due to the request or requirement of a Regulatory Authority or as a condition of a previously granted Regulatory Approval, that would satisfy the requirements of 21 C.F.R. 312.85.
1.71 “Pre-Marketing” means all sales and marketing activities undertaken prior to and in preparation for the launch of the Product in the Territory. Pre-Marketing shall include market research, key opinion leader development, advisory boards, medical education, disease-related public relations, health care economic studies, sales force training and other pre-launch activities prior to the First Commercial Sale of a Product in a given country or other regulatory jurisdiction in the Territory.
1.72 “Pricing Approval” means, with respect to any country where a Governmental Authority authorizes reimbursement or access, or approves or determines pricing, for pharmaceutical products, receipt (or, if required to make such authorization, approval of determination effective publication) of such reimbursement or access authorization or pricing approval or determination (as the case may be).
1.73 “Product” means any and all pharmaceutical products containing or comprising the Compound in any form, dosage, presentation or formulation, and whether alone, or in combination with, one or more other pharmaceutically active or inactive ingredients. [***]
1.74 “Product Approval” means, with respect to a Product, the approval of a Governmental Authority necessary for the marketing and sale of such Product in a given country or regulatory jurisdiction, which may include the approval of an MAA (but shall not include any Pricing Approvals).
1.75 “Product Complaint” means any written, verbal or electronic expression of dissatisfaction regarding the Product sold by or on behalf of Licensee (or any of its Related Parties or permitted distributors) in the Territory, including reports of actual or suspected product tampering, contamination, mislabeling or inclusion of improper ingredients.
1.76 “Product Specifications” means those Manufacturing, performance, quality-control, and Packaging and Labeling specifications for the Product in the Territory, as such specifications may be amended from time to time pursuant to the terms of this Agreement.
1.77 “Promotional Materials” means all written, printed, video or graphic advertising, promotional, educational and communication materials (other than the Product labels and package inserts) for marketing, advertising and promoting of the Product in the Field in the Territory, for use (a) by a Sales Representative or (b) in advertisements, web sites or direct mail pieces.
11
1.78 “Regulatory Approval” means, with respect to a Product in any regulatory jurisdiction for a given indication, approval from the applicable Regulatory Authority permitting the manufacture, distribution, use and sale of such Product in such regulatory jurisdiction for such indication in accordance with Applicable Law, including any Pricing Approvals.
1.79 “Regulatory Authority” means, in a particular country or regulatory jurisdiction, any applicable Governmental Authority involved in granting Regulatory Approval or, to the extent required in such country or regulatory jurisdiction, Pricing Approval of a Product in such country or regulatory jurisdiction.
1.80 “Regulatory Data” means any and all research data, pharmacology data, chemistry, manufacturing and control data, preclinical data, clinical data and all other documentation submitted, or required to be submitted, to Regulatory Authorities in association with regulatory filings for the Product (including information in any applicable Drug Master Files (DMFs), Chemistry, Manufacturing and Control (“CMC”) data, or similar documentation).
1.81 “Regulatory Exclusivity” means any exclusive marketing rights or data exclusivity rights conferred by any Governmental Authority with respect to the Product other than a Patent right.
1.82 “Regulatory Materials” means regulatory applications, submissions, notifications, communications, correspondence, registrations, Regulatory Approvals or other filings made to, received from or otherwise conducted with a Regulatory Authority that are necessary in order to Develop, Manufacture, obtain marketing authorization, market, sell or otherwise Commercialize the Product in a particular country or regulatory jurisdiction. Regulatory Materials include INDs, MAAs, CTAs, Imported Drug Licenses (IDLs), presentations, responses and applications for other Product Approvals.
1.83 “Related Parties” means, (a) with respect to Lilly, its Subsidiaries, and (b) with respect to Licensee, its (i) Affiliates and (ii) Sublicensees of the rights granted to Licensee hereunder (excluding distributors).
1.84 “Related Patents” means, with respect to a Patent, (a) any provisionals, re-examinations, continuations, continuations-in-part claiming the same subject matter, extensions, term restorations, renewals, divisionals, reissues, renewals and any Patents resulting therefrom; (b) corresponding international patent applications, including supplementary protection certificates, or other administrative protections; and (c) all rights to apply in any or all countries of the world for such patent applications and issued patents including all rights provided by multinational treaties or conventions for any of the foregoing.
1.85 “Royalty Term” means[***].
1.86 “Sales Representative” means an individual who is employed by a Party and who performs details and other promotional efforts with respect to the Product.
1.87 “Sanction Territories” means [***] and any geographies subject to U.S. comprehensive sanctions at the relevant time.
12
1.88 “Second Indication Regulatory Approval” means, with respect to a specified jurisdiction, the receipt of a further Regulatory Approval in such jurisdiction for the Product, being for a second Indication.
1.89 “Specified Person” means [***].
1.90 “Submission and Filing Acceptance” means, with respect to a Marketing Authorization Application, the receipt of notice from the relevant Regulatory Authority that such Marketing Authorization Application has met all the criteria for filing acceptance (expressly, or by the passing of such time period as comprises deemed acceptance) or, if such Regulatory Authority does not provide notices of such type, acceptance by such Regulatory Authority of such Marketing Authorization Application for filing.
1.91 “Subsidiary” means, with respect to any Person, any corporation, partnership, limited liability company, association or other business entity of which, (a) if a corporation, a majority of the total voting power of shares of stock entitled (irrespective of whether, at the time, stock of any other class or classes of such corporation shall have or might have voting power by reason of the happening of any contingency) to vote in the election of directors, managers or trustees thereof is at the time owned or controlled, directly or indirectly, by that Person or one or more of the other Subsidiaries of that Person or a combination thereof, or (b) if a partnership, limited liability company, association or other business entity, either (i) a majority of the partnership or other similar ownership interest thereof is at the time owned or controlled, directly or indirectly, by that Person or one or more Subsidiaries of that Person or a combination thereof, or (ii) such Person is a general partner, managing member or managing director of such partnership, limited liability company, association or other entity.
1.92 “Territory” means worldwide.
1.93 “Third Party” means any Person other than Lilly, Licensee or their respective Affiliates.
1.94 “Training Materials” means all Product-related training materials, including learning units and other printed, audio, web-based or video training materials, branded or unbranded, relating or referring to Product, Product-related disease states and Product sales orientation assessment tests and refresher tests.
1.95 “United States” or “U.S.” means the United States of America and its possessions and territories.
1.96 “Valid Claim” means, with respect to a particular country in the Territory, (a) a claim of an issued and unexpired Licensed Patent, or Licensee Patent (as the case may be) that (i) has not been held permanently revoked, unenforceable or invalid by a decision of a court or other Governmental Authority of competent jurisdiction, which decision is unappealed or unappealable within the time allowed for appeal, and (ii) has not been cancelled, withdrawn, abandoned, disclaimed or admitted to be invalid or unenforceable through reissue, disclaimer or otherwise, or (b) a bona fide claim of a pending patent application included within the Licensed Patents or Licensee Patents (as the case may be) that has not been (i) cancelled, withdrawn or abandoned without being re-filed in another application in the applicable jurisdiction, or (ii) finally rejected by an administrative agency action from which no appeal can be taken or that has not been appealed within the time allowed for appeal.
13
1.97 Additional Definitions. The following terms have the meanings set forth in the corresponding Sections of this Agreement:
Term | Section |
“Anti-Corruption Laws” | 9.5.1 |
“Audit” | 7.14 |
“Bankrupt Party” | 13.8 |
“Breaching Party” | 12.2 |
“Claim” | 10.1 |
“Commercialization Data” | 5.6 |
“Completion Date” | 2.5.1 |
“Completion Notice” | 2.5.1 |
“Confidential Information” | 11.1.1 |
“COVID Event” | 15.2 |
“Definitive Offer” | 2.5.4 |
“Development Data” | 3.6 |
“Development Milestone” | 7.2 |
“Development Milestone Notice” | 7.2 |
“Development Milestone Payment” | 7.2 |
“Development Plan” | 3.3.1 |
“Dispute” | 14.1 |
“Evaluation Period” | 2.5.2 |
“Foreground IP Rights” | 8.1 |
“Indemnified Party” | 10.3.1 |
“Indemnifying Party” | 10.3.1 |
“Initial Development Plan” | 3.3.2 |
“Lilly Programs” | 2.9 |
“Losses” | 10.1 |
“Major Financing Event Milestone Payment” | 7.4 |
“Negotiation Notice” | 2.5.3 |
“Packaging and Labeling” | 6.3 |
“Product Sales Milestone” | 7.3 |
“Product Sales Milestone Notice” | 7.3 |
“Product Sales Milestone Payment” | 7.3 |
“Product Trade Dress” | 5.5.1 |
“Product Trademark” | 5.5.1 |
“Relevant Transaction” | 2.5.4 |
“Royalty Payments” | 7.5 |
“Sublicensee” | 2.3.2 |
“Technology Transfer Period” | 2.8 |
“Term” | 12.1 |
14
Term | Section |
“Trade Laws” | 9.5.1 |
[***] | [***] |
“Upfront License Fee” | 7.1 |
“VAT” | 7.10.1 |
ARTICLE 2
LICENSES
2.1 Grant to Licensee. Subject to the terms and conditions of this Agreement, Lilly hereby grants to Licensee during the Term an exclusive (even as to Lilly and its Affiliates, but subject to Sections 2.2.3 and 2.9), payment-bearing license (with the right to sublicense solely in accordance with Section 2.3.2) under and with respect to the Licensed Technology to (a) Develop and Manufacture the Product in the Field in the Territory for purposes of Commercializing the Product in the Field in the Territory and (b) Commercialize the Product in the Field in the Territory.
2.2 Additional Licensing Provisions.
2.2.1 Negative Covenant. Licensee covenants that it will not use or practice any of the Patent Rights or other intellectual property rights licensed (or sublicensed, as applicable) to it under this Article 2, except for the purposes expressly permitted in the applicable license grant.
2.2.2 No Implied Licenses. It is understood that nothing in this Agreement shall be construed to grant Licensee or any of its Affiliates any assignment, license, option, or other right or interest, express or implied, in, to, or under any Licensed Technology, other intellectual property right or Confidential Information owned or otherwise controlled by Lilly except for the licenses and other rights and interests expressly granted hereunder.
2.2.3 Reserved Rights. The Parties hereby agree and acknowledge that nothing contained herein shall limit or otherwise restrict the ability of Lilly or its Affiliates or licensees to use the Licensed Technology for Lilly’s and its Affiliates’ research purposes. Subject to the terms of this Agreement, and subject specifically to the exclusive license granted to Licensee as set forth in Section 2.1, Lilly shall otherwise have the right to practice, license, and exploit any Licensed Patents and Licensed Know-How for any purpose.
2.2.4 Sanction Territories. Notwithstanding the grant to the Licensee under Section 2.1 being for the Territory, Licensee shall have no right to exercise the rights and licenses granted under Section 2.1 in the Sanction Territories, for so long as any jurisdiction is or remains a Sanction Territory.
15
2.3 Performance by Affiliates and Sublicensees.
2.3.1 Performance by Affiliates. Lilly recognizes that Licensee may perform some or all of its obligations under this Agreement through Affiliates; provided, however, that Licensee shall remain responsible for and be guarantor of the performance by its Affiliates and shall cause its Affiliates to comply with the provisions of this Agreement in connection with such performance, and Licensee shall be liable for the acts or omissions of its Affiliates under or in connection with this Agreement (as if such acts or omission were those of Licensee). Licensee hereby expressly waives any requirement that Lilly exhaust any right, power or remedy, or proceed against an Affiliate, for any obligation or performance hereunder prior to proceeding directly against Licensee. Wherever in this Agreement Licensee delegates responsibility to Affiliates, Licensee agrees that such entities may not make decisions inconsistent with this Agreement, amend the terms of this Agreement or act contrary to its terms in any way.
2.3.2 Sublicensees. Licensee shall have the right (but not the obligation) to sublicense those rights granted to it under Section 2.1 only as set forth in, and subject to the terms and conditions of, Section 2.5 and this Section 2.3.2, to (a) any Person (other than a Specified Person) with the prior written consent of Lilly, which consent will not be unreasonably withheld, conditioned or delayed; provided that Licensee may contract in the ordinary course of business with any Third Party contract research organization (“CRO”) or contract development and manufacturing organization (“CMO”) to handle certain clinical Development or Manufacturing activities, in Licensee’s reasonable discretion, without requiring Lilly’s consent; provided further that such CRO or CMO are working on Licensee’s behalf, (b) any of its Affiliates (only for so long as they remain Affiliates), provided that Licensee provides prior written notice (at least 20 Business Days in advance) to Lilly of any sublicenses to be granted to any Affiliate or its request for approval of any sublicense to be granted to any other Person, which shall include in each case a description of the rights to be granted and the purpose therefor, the identity of the proposed Sublicensee and the countries involved, or (c) a Specified Person. Each Affiliate or other Person to which any such sublicense is granted is referred to herein as a “Sublicensee.” Licensee shall remain responsible for the performance by each of its Sublicensees and shall cause each of its Sublicensees to comply with the applicable provisions of this Agreement, and Licensee shall be liable for the acts or omissions of its Sublicensees under or in connection with this Agreement (as if such acts or omission were those of Licensee). Without limiting the foregoing, Licensee shall: (x) ensure that each of its Sublicensees accepts in writing all applicable terms and conditions of this Agreement, including the non-compete, reporting, audit, inspection and confidentiality provisions hereunder; (y) under the agreements between Licensee and each of its Sublicensees, include a provision pursuant to which either (a) Lilly is named as a third-party beneficiary or (b) a mechanism (for example, a power of attorney) is implemented for Lilly to enforce all applicable terms and conditions of this Agreement against the Sublicensee in a manner reasonably satisfactory to Lilly, provided that, in each case, Lilly shall not proceed against any Sublicensee unless Lilly has first provided Licensee with written notice of the Sublicensee’s breach and Licensee has not, within 90 days after receipt of such notice, caused the Sublicensee to cease the breaching activity or otherwise cure the breach, in each case, to the reasonable satisfaction of Lilly; and (z) terminate all relevant agreements with any such Sublicensee in the case of any breach of such terms and conditions by such Sublicensee. A Sublicensee shall have the right to grant further sublicenses, subject to complying with the terms of this Section 2.3.2 with respect to further Sublicensees. For the avoidance of doubt, (i) Licensee will remain directly responsible for all amounts owed to Lilly under this Agreement, and (ii) each Sublicensee is subject to the negative and restrictive covenants set forth in Sections 2.2.1 and 2.4, respectively. Licensee hereby expressly waives any requirement that Lilly exhaust any right, power or remedy, or proceed against a subcontractor, for any obligation or performance hereunder prior to proceeding directly against Licensee. Notwithstanding anything to the contrary, (A) all sublicenses granted hereunder shall automatically terminate upon expiration or termination of this Agreement for any reason and (B) if the Parties enter into an agreement pursuant to Section 2.5 with respect to the Product, then as of the effective date of such agreement all sublicenses granted with respect to the Product shall automatically terminate, except as otherwise mutually agreed by the Parties in writing (and in no event shall any negotiations for any such agreement pursuant to Section 2.5 be conditioned on or otherwise affected by whether Lilly agrees to allow any such sublicenses to continue).
16
2.4 Restrictive Covenants. Licensee hereby covenants and agrees that it shall not (and shall cause its Related Parties not to), either directly or indirectly, develop, manufacture or commercialize (including submitting any application(s) for Regulatory Approval for and selling) any Competing Products in the Territory.
2.5 Right of First Negotiation.
2.5.1 Completion Notice. Upon completion of the [***] with respect to the Product (the date of such completion, the “Completion Date”), Licensee shall promptly notify Lilly in writing of such completion, which notice shall include all information from [***] that is reasonably necessary to evaluate the results of such [***] and the likelihood of successfully further Developing and Commercializing such Product (the “Completion Notice”).
2.5.2 Evaluation Period. For such [***], during the period beginning on the Completion Date and continuing until [***] after the date of Lilly’s receipt of the Completion Notice (or such other date as may be mutually agreed in writing from time to time) (such period, an “Evaluation Period”), Lilly shall have the exclusive right to evaluate the results of such [***] and determine whether it wishes to negotiate an agreement for the further Development and Commercialization by Lilly of the Product that was the subject of such Completion Notice. Licensee shall cooperate in good faith with Lilly with respect to such evaluation and conduct of due diligence by Lilly so as to fully inform Lilly’s evaluation of the Product, and promptly provide access to any Persons, subcontractors, sub-licensees, sub-distributors, facilities, or additional material information that has been used in, or Developed regarding, such [***] or the Manufacture or Development of the Product or Compound as reasonably requested by Lilly (for which Lilly shall reimburse Licensee for its direct reasonable out-of-pocket costs). If the Completion Notice failed to include any material information required by Section 2.5.1, then Licensee shall promptly provide such information and the Evaluation Period shall be automatically extended by the number of days between the date on which all such material information is received by Lilly and the date on which Lilly received the Completion Notice. If Licensee does not promptly provide any information required to by this Section 2.5.2, and such information would reasonably be expected to be material to Lilly’s evaluation hereunder, the Evaluation Period shall be extended until a reasonable time period following Lilly’s receipt of such information.
2.5.3 Negotiation Notice. If, on or before the last day of the Evaluation Period, Lilly provides written notice to Licensee that Lilly wishes to seek to negotiate an agreement for the further Development and Commercialization by Lilly of the applicable Product (a “Negotiation Notice”), then the Evaluation Period shall be automatically extended by [***] (or such longer period as may be mutually agreed in writing from time to time) and the Parties shall, until the end of the Evaluation Period, negotiate in good faith regarding such an agreement on commercially reasonable terms and conditions. Should the parties fail to agree such an agreement within the agreed timescale, Lilly’s right of first negotiation shall be at an end, and the Exclusivity Period shall be deemed to have expired.
17
2.5.4 Exclusivity Period. During the Exclusivity Period, Licensee shall not, and shall cause its Affiliates not to, directly or indirectly solicit, accept or conduct negotiations with any Person regarding (i) the further Development of the Product, (ii) the Commercialization of the Product, or (iii) a sublicense for any rights hereunder with respect thereto or (iv) a license or other similar right for any Know-How, Invention, Patent, technology, copyright, trademark or other intellectual property right Controlled by Licensee or any of its Affiliates with respect to the Product (a “Relevant Transaction”). [***].
2.5.5 Lilly’s Right to Match a Definitive Offer. Should Licensee receive any Definitive Offer from a Third Party in accordance with Section 2.5.4, as soon as reasonably practical thereafter it shall provide written notice to Lilly that it has received a Definitive Offer, and providing a complete and accurate copy of such Definitive Offer. [***] following provision by Licensee, Lilly shall respond to Licensee confirming that it wishes to negotiate in good faith regarding an agreement either: (a) including all the terms and conditions of the Definitive Offer; or (b) upon such alternative terms and conditions as Lilly proposes in its response, which terms and conditions are objectively and commercially more beneficial to Licensee than those contained in the Definitive Offer. [***], the parties shall commence negotiating in good faith regarding such an agreement which shall otherwise be on commercially reasonable terms and conditions. Should (i) the Parties fail to agree such an agreement [***] thereafter, or (ii) Lilly not respond to the Licensee within the [***] period following notification of the Definitive Offer, Lilly’s right to match or better this or any other Definitive Offer shall be at an end and Lilly shall be deemed to have declined to match, or better, the Definitive Offer. Licensee shall have [***] thereafter to consummate the transaction contemplated by such Definitive Offer. Should Licensee not sign definitive documents formalizing the transaction contemplated by the Definitive Offer [***], Lilly’s rights under this Section shall reset.
2.5.6 Exchange of Information. Licensee shall keep Lilly fully and promptly informed as to its progress and activities relating to the Development, Manufacture and Commercialization of the Product in the Field in the Territory, including with respect to regulatory matters and meetings with Regulatory Authorities, by way of semi-annual updates to Lilly and as otherwise specified in this Agreement, or as reasonably requested from time to time by Lilly. In connection therewith, Licensee shall provide Lilly with such information regarding such progress and activities under the Development Plan or otherwise relating to the Product as Lilly may reasonably request from time to time.
2.6 Data Transfer. [***] after the Effective Date, Lilly will make information and Licensed Know-How as set forth on Schedule C available to Licensee. All such information and Licensed Know-How will be provided “as is”.
2.7 Material Transfer. Within three (3) months after Lilly’s receipt of the payment of the Upfront License Fee set forth in Section 7.1, Lilly shall, at Lilly’s expense, transfer to Licensee FOB Lilly’s facility the active pharmaceutical ingredient and other materials as described in Schedule C.
18
2.8 Technology Transfer. [***] following the Effective Date (the “Technology Transfer Period”), Lilly shall, at Lilly’s expense, transfer to Licensee the (i) technical information and processes as set forth on Schedule C, (ii) regulatory filings or applications in Lilly’s name for the Product as set forth on Schedule C, and (iii) other information reasonably requested by Licensee [***] of the Technology Transfer Period and used exclusively for the Development of the Product by Lilly; provided that such information is controlled by and reasonably available to Lilly, and Lilly is under no obligation to keep such information confidential. For clarity, except for the foregoing clause (iii), Lilly will only provide the items specifically listed on Schedule C and there shall be no further obligation by Lilly to provide any technical information, materials, processes, regulatory filings or applications beyond those listed therein. For the avoidance of doubt, the foregoing shall not include, and Licensee shall have no rights to use, any manufacturing technology (including any cell-based media or any of its components) or processes or device technology or processes, or any other technology, of Lilly and its Affiliates (other than Lilly and its Subsidiaries as of the Effective Date). The technology transfer shall occur in an orderly fashion and in a manner such that the value, usefulness and confidentiality of the transferred Licensed Know-How and regulatory documentation are preserved in all material respects. The implementation and transfer of information pursuant hereto shall be conducted through electronic, email and teleconference consultation between the Parties; provided that Lilly shall not be required to conduct any on-site or in-person consultation in connection therewith unless Licensee reimburses Lilly for any travel expenses. For clarity, Licensee shall be responsible for any Development or Manufacturing related costs associated with such technology transfer, including lab runs, pilot scale testing and demo batches and Lilly will not be obligated to provide any assistance, support, advice, guidance, technology transfer, information, data, or cooperation to Licensee other than what is specifically described in this Agreement.
2.9 Lilly Programs. Licensee acknowledges that Lilly or its Affiliates may research, develop, analyze, test, manufacture, conduct preclinical or clinical trials, promote, market, distribute, sell (and offer for sale or contract to sell), import, export, or otherwise commercially exploit or provide product support for one or more compounds or products (other than the Compound or Products) that are claimed or covered by, and would infringe, the Licensed Patents Controlled by Lilly or its Subsidiaries as of the Effective Date, and that some or all of such compounds or products may be at a later stage of development than the Compound. Notwithstanding anything to the contrary: (a) nothing in this Agreement prohibits or restricts Lilly or its Affiliates from researching, developing, analyzing, testing, manufacturing, conducting preclinical or clinical trials, promoting, marketing, distributing, selling (and offering for sale or contracting to sell), importing, exporting, or otherwise commercially exploiting or providing product support for any such compounds or products (or any natural evolutions or successors thereto, not being the Compound or Product) (collectively the “Lilly Programs”) or, other than with respect to a Compound or Product, from licensing or transferring to any other Person, or prosecuting or enforcing, any of its Know-How, Inventions, Patents, technology, copyrights, trademarks or other intellectual property rights with respect thereto; (b) Lilly has no obligation to share with Licensee any information regarding any Lilly Program; and (c) Licensee shall have no right to assert, and hereby covenants not to assert, any Licensed Patents or Licensed Know-How against Lilly or any of its Affiliates (or any of their sublicensees, distributors, third-party providers or customers) with respect to any Lilly Programs. In the event of Lilly selling (or offering for sale or contracting to sell) any compounds or products that Lilly directly controls as of the Effective Date (or comes under Lilly’s direct control [***]) and that are [***] under any Lilly Program in a country following approval from the applicable Regulatory Authority permitting the manufacture, distribution, use and sale of such product in such country, [***].
19
ARTICLE 3
DEVELOPMENT
3.1 Overview of Development. Subject to the terms and conditions of this Agreement, Licensee shall be responsible for the Development of the Product for use in the Field in the Territory as set forth herein. Licensee shall use [***] to conduct, in accordance with the Development Plan, the Development Activities, including bridging studies, clinical studies, and Clinical Trials (including post-Regulatory Approval studies). Licensee shall use [***] to perform the Development Activities for the Product to (a) enable obtaining Regulatory Approval in the Territory for the Product in the Field and (b) maximize the commercial potential for the Product in the Field in the Territory. Notwithstanding the foregoing, Lilly acknowledges that [***]. Lilly also acknowledges the experimental and uncertain nature of Development and that the Development Plan may not yield the intended results. Accordingly, Lilly acknowledges that Licensee cannot guarantee it will obtain Regulatory Approval.
3.2 Objectives under the Development Plan.
3.2.1 Development Activities. Licensee shall [***] carry out the Development Activities for the Product under the applicable Development Plan in accordance with the time frames set forth therein and in a manner designed to achieve successful Development and Regulatory Approval of the Compound or Product in the Territory.
3.2.2 Compliance. Licensee shall conduct the Development Activities in accordance with sound and ethical business and scientific practices, and in compliance with (i) all Applicable Laws, including GCPs, GMPs, and GLPs, and also including all applicable pharmacovigilance, data privacy and data protection laws in the Territory as applicable, and (ii) Lilly animal care and use requirements referenced in the attached Schedule D. In addition, Licensee shall not use in any capacity, in connection with its Development (or Commercialization) of the Compound or Product hereunder, any Person who has been debarred pursuant to Section 306 of the FD&C Act (or similar Applicable Laws outside of the U.S.), or who is the subject of a conviction described in such section, and Licensee shall inform Lilly in writing promptly if it or any Person who is performing services for Licensee hereunder is debarred or is the subject of a conviction described in Section 306 (or similar Applicable Laws outside of the U.S.), or if any action, suit, claim, investigation or legal administrative proceeding is pending or, to Licensee’s knowledge, is threatened, relating to the debarment of Licensee or any Person used in any capacity by Licensee in connection with its Development (or Commercialization) of the Compound or Product hereunder.
20
3.3 Development Plan.
3.3.1 General. In connection with the Development of the Product for use in the Field in the Territory, Licensee shall conduct Development Activities pursuant to a comprehensive development plan (the “Development Plan”). The Development Plan shall set forth, among other things, the following:
(a) any preclinical studies, toxicology studies, pharmaco-economic studies and other clinical studies (including Phase IV Clinical Trials) necessary for obtaining and maintaining Regulatory Approval in the Territory, in the Field in the Territory;
(b) all regulatory plans for obtaining and maintaining Regulatory Approvals in the Field for the Product in each country or regulatory jurisdiction in the Territory; and
(c) the timeline for completing such Development Activities.
3.3.2 Initial Development Plan. The initial Development Plan for the Product (the “Initial Development Plan”) is attached hereto as Schedule E.
3.3.3 Updating and Amending Development Plan. Licensee shall, during the fourth (4th) Calendar Quarter of each Calendar Year, review and update, as appropriate, the then-current Development Plan to reflect any material changes, reprioritizations of, or additions to the Development Plan. Licensee shall provide such updated Development Plan to Lilly within ten (10) days of its creation. Lilly may, at its discretion, provide comments on such updated Development Plan within 30 days of receipt and Licensee will consider any such comments in good faith. Once Licensee has considered, and to the extent applicable, incorporated at Licensee’s discretion any comments by Lilly (but in no case later than 30 days from receipt of such comments), it shall provide Lilly with a copy of such amended Development Plan, which will become effective and supersede the previous Development Plan upon Lilly’s receipt or, if no comments are provided by Lilly, at the end of Lilly’s 30-day comment period.
3.4 Development Costs. Licensee shall be solely responsible for 100% of all (a) Development costs incurred with respect to any Development Activities or any Analytical Release Testing and Characterization and (b) costs incurred associated with any Manufacturing Development Activities.
3.5 Records, Reports and Information.
3.5.1 General. Licensee shall, and shall cause each of its Related Parties to, maintain current and accurate records of all work conducted by it under the Development Plan and all data and other information resulting from such work (which records shall include, as applicable, books, records, reports, research notes, charts, graphs, comments, computations, analyses, recordings, photographs, computer programs and documentation thereof (e.g., samples of materials and other graphic or written data generated in connection with the Development Activities)). Such records shall properly reflect all work done and results achieved in the performance of the Development Activities in sufficient detail and in good scientific manner appropriate for regulatory and patent purposes. Licensee shall document all clinical trials and relevant preclinical studies to be conducted pursuant to the Development Plan in formal written study reports according to applicable national and international (e.g., ICH, GCP and GLP) guidelines.
21
3.5.2 Status Updates in the Territory. Licensee shall provide Lilly with bi-annual reports detailing the Development Activities under the Development Plan (including the amounts spent and the value of any uncompensated services and other in-kind contributions received by Licensee to conduct the Development Activities), and the results thereof; provided that upon the later of (i) the expiry of the Exclusivity Period, or (ii) Lilly or its Affiliates ceasing to hold any Equity Securities of Licensee or its Affiliates, such reports will be provided annually. Without limiting the foregoing, upon request by Lilly, Licensee shall promptly, but in any event within five (5) Business Days after receipt of Lilly’s request, provide to Lilly copies of any material documents or correspondence received from any Regulatory Authority related to Development Activities.
3.5.3 Access to Records. Lilly shall have the right to review all records under the Development Plan maintained by Licensee at reasonable times, upon written request, in accordance with Section 7.14.
3.6 Ownership of Development Data. All data (including pre-clinical, clinical, technical, chemical, safety, and scientific data and information), Know-How and other results generated by or resulting from or in connection with the Development of the Product by Licensee, including relevant laboratory notebook information, screening data, Regulatory Data and synthesis schemes, including descriptions in any form, data and other information (collectively, the “Development Data”), shall be owned solely and exclusively by Licensee and shall be Confidential Information of Licensee (and Licensee shall require that all of its Affiliates, Sublicensees and subcontractors assign to Licensee any of such Affiliates’, Sublicensees’ and subcontractors’ right, title and interest in and to such Development Data to such Party). Lilly acknowledges that such Development Data, in addition to being the Confidential Information of Licensee, may be sensitive information of Licensee. Licensee grants to Lilly a perpetual, irrevocable, fully paid-up, royalty free, non-exclusive license under all Development Data for its internal, research and development purposes, except for research and development in (a) any Lilly Program targeting IL-33; and/or (b) the Development of the Compound or Product licensed to Licensee under Section 2.1.
3.7 Development Diligence Failures. If Licensee fails to satisfy the requirements set forth in Section 3.1 with respect to the Development of the Product in the Field in the Territory, then Lilly may raise such issue by written notice to Licensee, specifying the issue and seeking its remedy. The Parties shall endeavour to resolve the Dispute between them pursuant to the dispute resolution procedures contained in Section 14.1. If, [***], the Dispute has not been resolved in accordance with Section 14.1, or Licensee has not undertaken [***] to recommence Development and remedy the issues identified by Lilly in such notice, then Lilly shall have the right to terminate this Agreement, either in its entirety or on a relevant country-by-relevant country basis, at its option; provided, however, that the aforementioned [***] period shall be tolled for the duration of the dispute resolution procedures contained in Section 14.1.
ARTICLE 4
REGULATORY
4.1 Regulatory Data and Regulatory Materials. Lilly shall use [***] to provide Licensee with such Regulatory Materials and Regulatory Data as set forth on Schedule C in the current “as-is” form and format [***]after the Effective Date. Licensee may only use the Regulatory Materials and Regulatory Data provided by Lilly hereunder in accordance with the rights granted to Licensee under Section 2.1.
22
4.2 Regulatory Filings and Regulatory Approvals.
4.2.1 General Responsibilities; Ownership of Regulatory Approvals. Licensee shall be responsible for the preparation of all Regulatory Materials necessary or desirable for obtaining and maintaining the Regulatory Approvals for the Product in the Field in the Territory (including in connection with Patient Information Leaflets, labeling and packaging for the Product in the Field in the Territory) and Licensee shall submit such Regulatory Materials, as applicable, to the applicable Governmental Authorities in the Territory. For clarity, to the extent allowed by Applicable Laws, all Regulatory Approvals for the Product in the Field in the Territory shall be held and owned by Licensee in its name.
4.2.2 Pricing Approvals. To the extent that a given country or regulatory jurisdiction in the Territory requires Pricing Approval for sale of the Product in the Field in such country or regulatory jurisdiction, Licensee shall (to the extent permitted by Applicable Laws) be solely responsible for (and shall use [***] toward) obtaining and maintaining Pricing Approvals in such countries and regulatory jurisdictions in the Territory, in its own name. Without limiting the foregoing, Licensee shall use [***] to apply for Pricing Approvals in each country or regulatory jurisdiction in the Territory where Pricing Approvals are required for the sale of the Product in the Field [***] following the receipt of the Product Approval in such country or regulatory jurisdiction.
4.2.3 Cost of Regulatory Activities. All regulatory costs incurred in connection with the preparation of Regulatory Materials for, and obtaining of Product Approvals in, the Field in the Territory for the Product shall be borne solely by Licensee, and Licensee shall be responsible for all regulatory costs involved in the maintenance of all Regulatory Approvals for the Product in the Field in the Territory.
4.2.4 Reporting and Review. Licensee shall keep Lilly reasonably and regularly informed in connection with the preparation of all Regulatory Materials, Regulatory Authority review of Regulatory Materials, Regulatory Approvals and Pricing Approvals, in each case with respect to the Product for sale in the Field in the Territory. Such updates provided to Lilly under this Section 4.2.4 shall be provided in writing and shall include all data and results produced in such Development that is available to Licensee for the preceding Calendar Quarter, together with Licensee’s written assessment of such results. Upon completion of a Phase IIb Clinical Trial of the Product, such reports shall in any event be updated and promptly delivered to Lilly. Licensee shall make appropriate personnel reasonably available to answer questions from Lilly regarding such data or results. The reporting obligations in this Section 4.2.4 would continue for the Product until such Product is sublicensed or sold to a Third Party.
4.3 No Other Regulatory Filings. Except as otherwise expressly set forth in this Article 4, Licensee (and its Affiliates) shall not file any Regulatory Materials or Regulatory Approvals for any products other than the Product that are otherwise based on any Licensed Technology.
23
4.4 Pharmacovigilance and Medical Inquiries.
4.4.1 Pharmacovigilance. Licensee, as the holder of the Product Approvals in the Territory, shall be responsible for all Pharmacovigilance responsibilities related to the Product in the Field in the Territory in accordance with Applicable Laws.
4.4.2 Medical Inquiries for the Product. Following the Effective Date, subject to Section 4.2.1, Licensee shall be responsible for handling all medical questions or inquiries in the Field in the Territory, including all Product Complaints, with regard to the Product sold by or on behalf of Licensee (or any of its Related Parties), in each case in accordance with Applicable Laws and this Agreement. Licensee shall be responsible for handling the Product Complaints related to the Development, Commercialization and Manufacture of the Product in the Field in the Territory, and Lilly shall refer all such Product Complaints to Licensee.
4.5 Regulatory Authority Communications Received by a Party.
4.5.1 General. Licensee shall promptly provide Lilly with a summary of notification of any action by, or notification or other information which it receives (directly or indirectly) from, any Regulatory Authority which (a) raises any material concerns regarding the safety or efficacy of the Product, (b) indicates or suggests a potential material liability of either Party to Third Parties in connection with the Product, (c) is reasonably likely to lead to a recall, market withdrawal or market notification with respect to the Product, or (d) relates to expedited and periodic reports of adverse events with respect to the Product or Product Complaints, and which may have an adverse impact on Regulatory Approval or the continued Commercialization of the Product. Licensee shall be solely responsible for responding to any such communications relating to the Product in the Field in the Territory. Upon request by Lilly, Licensee shall also promptly provide Lilly with a copy of all material correspondence received from a Regulatory Authority specifically regarding the matters referred to above.
4.5.2 Disclosures. In addition to its obligations under this Agreement, Licensee shall disclose to Lilly the following regulatory information:
(a) All material information pertaining to actions taken by Regulatory Authorities, in connection with the Product in the Field, including any notice, audit notice, notice of initiation by Regulatory Authorities of investigations, inspections, detentions, seizures or injunctions concerning the Product in the Field, notice of violation letter (i.e., an untitled letter), warning letter, service of process or other inquiry; provided, however, that a Party shall be entitled to redact those portions thereof to the extent not related to the Product. Without limiting the generality of the foregoing, Licensee shall promptly, but in any event within two (2) Business Days, inform Lilly of any inspections, proposed regulatory actions, investigations or requests for information or a meeting by any Regulatory Authority with respect to the Product in the Field.
(b) All information pertaining to notices from Regulatory Authorities, regarding non-compliance with Applicable Laws in connection with the Product in the Field, including receipt of a warning letter or other notice of alleged non-compliance from any Regulatory Authority relating to the Product in the Field [***]; provided, however, that Licensee shall be entitled to redact those portions thereof to the extent not related to the Product in the Field.
24
4.6 Recall, Withdrawal, or Market Notification of Product. In the event that any Governmental Authority threatens or initiates any action to remove the Product from the market in the Field in the Territory, Licensee shall notify Lilly of such communication promptly, [***] after receipt thereof. Licensee shall determine whether to initiate any recall, withdrawal or market notification of the Product in the Field in the Territory. Licensee shall use [***] to utilize a batch tracing system that will enable Licensee to identify, on a prompt basis, customers within the Territory who have been supplied with Product of any particular batch, and to recall such Product from such customers as set forth in this Section 4.6. All costs and expenses associated with implementing a recall, withdrawal or market notification with respect to the Product in the Field in the Territory shall be borne by Licensee.
4.7 Regulatory Diligence. In the event that Licensee determines at any time during the Term that it is not economically feasible to incur the costs necessary to obtain and maintain Regulatory Approval for the Product in a given country of the Territory, Licensee shall promptly notify Lilly in writing of such determination and Lilly shall have the right to obtain or maintain Regulatory Approval in such country, and may terminate this Agreement with respect to such Product in such country.
ARTICLE 5
COMMERCIALIZATION
5.1 Commercialization in the Field in the Territory. Licensee shall be solely responsible for Commercializing the Product in the Territory for use in the Field, which Commercialization shall be in accordance with this Agreement. Licensee shall be responsible for 100% of the expenses (including Pre-Marketing and other Commercialization expenses) incurred in connection with the Commercialization of the Product in the Territory for use in the Field. Without limiting the foregoing, Licensee shall use [***] to Commercialize the Product for use in the Field in the Territory.
5.2 Licensee’s Performance.
5.2.1 Specific Commercialization Obligations. Without limiting the generality of the provisions of Section 5.1, in connection with the Commercialization of the Product in the Territory for use in the Field by Licensee hereunder:
(a) Licensee shall [***] (i) Commercialize the Product for use in the Field in the Territory, (ii) maximize the commercial potential for the Product in the Field in the Territory, (iii) represent the Product accurately and fairly, and (iv) not sell Product as part of a bundle in any manner that would disadvantage the Product relative to any other product(s) in such bundle including, without limitation, the discount or rebate for any Product is greater than the discount or rebate for any other product(s) included in such bundle.
(b) Licensee shall not (i) utilize deceptive, misleading or unethical business practices, or (ii) take any action or inaction that is incompatible with using [***] to Commercialize the Product, or which the Licensee should reasonably know is likely to prejudice the value of the Product.
25
(c) Licensee shall be solely responsible for (i) receiving, accepting and filling orders for the Product in the Field in the Territory, (ii) handling all returns of the Product in the Field in the Territory, (iii) controlling invoicing, order processing and collection of accounts receivable for the sales of the Product in the Field in the Territory, and (iv) distributing and managing inventory of the Product in the Field in the Territory.
(d) Licensee shall [***] (i) launch the Product in each country (or other regulatory jurisdiction) as Licensee deems commercially appropriate to do so in the Territory after all applicable Regulatory Approvals for the Product in such country (or other regulatory jurisdiction) have been obtained; and, (ii) ensure that once launched, the Product remains commercially available in each country in which it has been launched for the duration of the Royalty Term in such country.
5.2.2 Commercialization Diligence Failures. If Licensee fails to satisfy the requirements set forth in Section 5.2.1 with respect to the Commercialization of the Product in the Field in the Territory, then Lilly may raise such issue by notice to Licensee, specifying the issue and seeking its remedy. The Parties shall endeavour to resolve the Dispute between them pursuant to the dispute resolution procedures contained in Section 14.1. If, [***] following Licensee’s receipt of any such notice from Lilly, the Dispute has not been resolved in accordance with Section 14.1, or Licensee has not undertaken [***] identified by Lilly in such notice, then Lilly shall have the right to terminate this Agreement with respect to such Product, either in its entirety or on a relevant country-by-relevant country basis, at its option; provided, however, that the aforementioned [***]for the duration of the dispute resolution procedures contained in Section 14.1.
5.3 Reports. Without limiting Licensee’s other reporting obligations hereunder, Licensee shall, during each Calendar Quarter, provide Lilly a reasonably detailed report regarding its significant Commercialization activities involving the Product during the preceding Calendar Quarter.
5.4 Promotional Materials.
5.4.1 Creation of Promotional Materials. Licensee will [***] create and develop Promotional Materials for the Territory in accordance with the Regulatory Approvals and Applicable Laws.
5.4.2 No Inclusion of Lilly Logos on Packaging and Promotional Materials. Notwithstanding anything to the contrary herein, neither Licensee nor any Related Party of Licensee shall use any of Lilly’s or its Affiliates’ trademarks, names, logos or housemarks in connection with any Promotional Materials or the Product. Without limiting the foregoing, Licensee will take no action that will interfere with or diminish Lilly’s or its Affiliates’ rights in their respective trademarks, names and logos, and if Lilly reasonably believes that the use of any trademarks, names and logos by Licensee hereunder is interfering with or diminishing their respective rights, Lilly shall notify Licensee thereof in writing and Licensee shall promptly cease use of such trademarks, names or logos in such manner.
5.4.3 Licensee Ownership of Promotional Materials. During the Term, Licensee shall own all right, title and interest in and to any Promotional Materials created by Licensee hereunder relating to the Product in the Field in the Territory including copyrights, but excluding trademarks (including the Product trademarks), names, logos and other marks owned by or on behalf of Lilly or its Affiliates.
26
5.4.4 Use of Promotional Materials Exclusively for the Product. The Promotional Materials, and any aspects of those uniquely tied to the Product, shall be used by Licensee exclusively in connection with the Manufacturing and Commercialization of the Product in the Field in the Territory in accordance with the terms of this Agreement, and Licensee shall not use, or allow any other Person to use, any such Promotional Materials except in accordance with this Agreement.
5.5 Product Trademarks and Product Trade Dress.
5.5.1 Product Trademarks. Licensee shall [***] Commercialize the Product in the Field in the Territory under the trademark and the trade dress selected by Licensee (the “Product Trademarks” and the “Product Trade Dress”, respectively). Notwithstanding the foregoing, in the event that Lilly reasonably believes that the use or registration of the Product Trademarks or the use of the Product Trade Dress in a particular country in the Territory would be against the Applicable Laws of such country, or in conflict with any Third Party’s intellectual property rights in that country, based on a reasonable review of market research, regulatory research, legal searches, investigation results, legal opinion and any other relevant information that may have been collected by either Party that is relevant to the clearance for use and registration of a trademark or for use and registration of a trade dress, Lilly shall present such concern to Licensee, and Licensee shall take into good faith consideration such concerns.
5.5.2 Use and Ownership of Product Trademarks and Product Trade Dress. All uses of the Product Trademarks and Product Trade Dress by Licensee (and its Related Parties) to identify or in connection with the Commercialization of the Product in the Field in the Territory shall be in accordance with Regulatory Approvals and all Applicable Laws. Licensee (and its Related Parties) shall only use the Product Trademarks and Product Trade Dress pursuant to the terms of this Agreement to identify and in connection with the Commercialization of the Product in the Territory for use in the Field, and Licensee shall not (and shall cause its Related Parties not to) use such Product Trademarks or Product Trade Dress to identify or in connection with the marketing of any other products. Licensee shall own and retain all rights to the Product trademarks and Product trade dress (in each case, together with all goodwill associated therewith throughout the Territory). Licensee shall also own rights to any Internet domain names incorporating the Product trademarks or any variation or part of such trademarks as its URL address.
5.5.3 Maintenance of Product Trademarks. During the Term, Licensee will use [***] to establish, maintain and enforce the Product Trademarks in the Territory, and will bear all costs and expenses relating thereto.
5.6 Commercialization Data. Licensee shall own all marketing and sales data and information resulting from its Commercialization of the Product in the Field in the Territory during the Term (the “Commercialization Data”), including promotional materials, marketing strategies and market research data.
27
ARTICLE 6
MANUFACTURING
6.1 General. Licensee will [***] Manufacture (or have Manufactured) reasonable quantities of the Product for clinical and commercial use in the Field in the Territory, in each case in accordance with the terms of this Article 6.
6.2 Manufacturing. Licensee will be solely responsible for, and will bear all the costs and expenses of Manufacturing and supplying, all of its requirements of the Product for its use in the Development of the Product in the Field, and the Commercialization of the Product in the Field within the Territory. All Product Manufactured by or on behalf of Licensee must be manufactured in compliance with Applicable Laws, Regulatory Approvals and applicable GMPs.
6.3 Packaging and Labeling; Certain Other Manufacturing Activities. Notwithstanding anything to the contrary contained herein, Licensee or its designated Third Party shall be responsible (at its sole cost and expense) for all final product labeling and packaging (whether in commercial or clinical packaging presentation), including insertion of materials such as patient inserts, patient medication guides, professional inserts and any other written, printed or graphic materials accompanying the Product and considered to be part of the finished Product packaging and labeling, and handling, storage, quality control, quality assurance, and the testing and release aspects of Analytical Release Testing and Characterization and related activities, of the Product in connection with the foregoing (collectively, “Packaging and Labeling”). Licensee or its designated Third Party shall ensure that all such Packaging and Labeling complies with Applicable Laws, GMPs and the Regulatory Approvals for the Product in the Territory, including the Product Specifications. Licensee or its designated Third Party shall also be responsible for performing the testing and release aspects of Analytical Release Testing and Characterization of the Product. To the extent that a Third Party is involved in Packaging and Labeling or other activities described in this Section 6.3, Licensee shall be wholly responsible for, and bear 100% of the costs related to, qualifying such Third Party to perform such activities.
ARTICLE 7
PAYMENTS
7.1 Upfront License Fee. In consideration of the license and rights granted hereunder, Licensee shall pay an upfront license fee in an amount equal to $7,000,000 (the “Upfront License Fee”), [***].
7.2 Development Milestone Payments. In consideration of the license and rights granted hereunder, Licensee shall pay to Lilly each of the milestone payments set forth in the table below (each, a “Development Milestone Payment”) upon the occurrence of the corresponding milestone set forth in such table (each, a “Development Milestone”). Licensee shall promptly notify Lilly in writing of, but in no event later than five (5) Business Days after, the occurrence of each Development Milestone for the Product (which notice shall specify the date of such occurrence, and such specified date shall be binding on Licensee) (each, a “Development Milestone Notice”); provided, however, that in no event shall a failure to deliver a Development Milestone Notice relieve Licensee of its obligation to pay the applicable Development Milestone Payment when due pursuant to this Section 7.2. Licensee shall pay each Development Milestone Payment [***] after the occurrence of the applicable Development Milestone.
28
Development Milestone | Jurisdiction/Agency | Development Milestone Payment |
Initiation of the [***] Trial | [***] | [***] |
[***] | [***] | [***] |
[***] | [***] | |
[***] | [***] | |
[***] | [***] | [***] |
[***] | [***] | |
[***] | [***] | |
[***] | [***] | [***] |
[***] | [***] | |
[***] | [***] |
Each Development Milestone is a single occurrence event, and accordingly each Development Milestone Payment shall only be payable once for all products that fall within the definition of the Product taken together (e.g., all formulations and dosages), and shall be payable upon the first occurrence of the applicable Development Milestone for the Product (regardless of the specific Product or whether the specific Product for a Development Milestone is the same as the specific Product for any other Development Milestones). For clarity, and by way of example (with each of the following items occurring sequentially in the order set forth below):
(i) | If there is an Initiation of a [***] for a particular formulation/dosage of the Product, the corresponding Development Milestone Payment of [***]would be payable. |
(ii) | If there is an Initiation of a second [***] whether for the same formulation/dosage of the Product as in item (i) or for a different formulation/dosage of the Product, no Development Milestone Payment would be payable. |
(iii) | If there is Submission and Filing Acceptance of the first [***] for the Product in any formulation/dosage or for any indication within the Field, the corresponding milestone payment of [***] (depending on relevant Jurisdiction/Agency) would be payable. |
(iv) | If there is a [***] for the Product in any formulation/dosage within the Field, the corresponding milestone payment of [***] (depending on relevant Jurisdiction/Agency) would be payable. |
(v) | If there is a subsequent [***] for the Product for a different formulation/dosage than in item (iv), no Development Milestone Payment would be payable for the same Jurisdiction/Agency because the applicable Development Milestone Payment has already been made. |
(vi) | If there is a [***] for the Product in any formulation/dosage within the Field, the corresponding milestone payment of [***] (depending on relevant Jurisdiction/Agency) would be payable. |
29
For the avoidance of doubt only ten distinct Development Milestones may be achieved and so if all ten of the Development Milestones occur, the total amount of Development Milestone Payments required to be made under this Agreement will be [***].
7.3 Product Sales Milestone Payments. In consideration of the license and rights granted hereunder Licensee shall pay to Lilly each of the milestone payments set forth in the table below (each, a “Product Sales Milestone Payment”) once only, on the first occurrence of the aggregate Net Sales for the Product (by Licensee, and all Related Parties) in any Calendar Year exceeding the corresponding Net Sales threshold set forth in such table (each, a “Product Sales Milestone”). Licensee shall promptly notify Lilly in writing of [***] the occurrence of the Product Sales Milestone (each, a “Product Sales Milestone Notice”); provided, however, that in no event shall a failure to deliver a Product Sales Milestone Notice relieve Licensee of its obligation to pay the applicable Product Sales Milestone Payment when due pursuant to this Section 7.3. Licensee shall pay each Product Sales Milestone Payment [***] after the end of the Calendar Quarter in which the Product Sales Milestone first occurred.
Product
Sales Milestone (Annual Net Sales Threshold) |
Product
Sales Milestone Payment |
[***] | [***] |
[***] | [***] |
[***] | [***] |
[***] | [***] |
[***] | [***] |
The aggregate Net Sales of the Product shall be for all products that fall within the definition of the Product taken together (e.g., all formulations and dosages), and shall be calculated on a worldwide basis for all jurisdictions within the Territory. If applicable, the aggregate Net Sales in each jurisdiction shall be converted to Dollars in accordance with Section 7.11 for purposes of determining whether a Product Sales Milestone has occurred. Each Product Sales Milestone Payment shall only be payable once for the Product for all products that fall within the definition of such Product taken together (e.g., all formulations and dosages), and shall be calculated on a worldwide basis for all jurisdictions within the Territory, and shall be payable upon the first occurrence of the applicable Product Sales Milestone. For clarity, the occurrence of a Product Sales Milestone for exceeding a particular Net Sales threshold shall also mean the occurrence of each Product Sales Milestone having a lower Net Sales threshold, and each such Product Sales Milestone Payment shall be separately due and payable (to the extent not previously paid). By way of example, if during a particular Calendar Quarter, the [***] Net Sales threshold for the Product is exceeded, but at the end of the prior Calendar Quarter, the [***] Net Sales threshold for the Product had not yet been exceeded, then the Product Sales Milestone Payments of [***] and [***] would both be due and payable [***] after the end of the Calendar Quarter during which the [***] Net Sales threshold was exceeded.
For the avoidance of doubt, if all of the Product Sales Milestones occur for the Product, the total amount of Product Sales Milestone Payments required to be made will be [***].
30
7.4 Major Financing Event Milestone Payment. In consideration of the license and rights granted hereunder, Licensee shall pay Lilly [***] (the “Major Financing Event Milestone Payment”), which shall be due and payable [***] following the Major Financing Completion.
7.5 Royalty Payments. In consideration of the license and rights granted hereunder, Licensee shall pay to Lilly a tiered royalty in an amount equal to the aggregate Net Sales for the Product during the Calendar Year (by Licensee and all Related Parties) multiplied by the applicable royalty rate percentage(s) specified in the table below (with each royalty rate percentage applied only to the corresponding range of Net Sales specified in such table) (collectively, the “Royalty Payments”).
Net
Sales (each Calendar Year) |
Royalty Rate Percentage |
[***] | [***] |
[***] | [***] |
[***] | [***] |
[***] | [***] |
Each Royalty Payment shall be calculated based on the aggregate Net Sales of the Product during the Calendar Year, and shall be calculated on a worldwide basis for all jurisdictions within the Territory. If applicable, the aggregate Net Sales in each jurisdiction shall be converted to Dollars in accordance with Section 7.11 for purposes of determining the aggregate Net Sales in all jurisdictions. The aggregate Net Sales of the Product shall be for all products that fall within the definition of the Product taken together (e.g., all formulations and dosages). Each royalty rate percentage in the table above applies only to the specified range of Net Sales for the Product. For example, [***].
7.6 Generic Competition. [***]
7.7 Anti-Stacking. [***]
7.8 Valid Claims. [***]
7.9 Payments.
7.9.1 General. Licensee shall make all payments required by this Article 7 by wire transfer of then immediately available funds into an account designated by Lilly, and shall make such payments by a U.S. entity from a bank account domiciled in the U.S. and in Dollars. Each payment of the Upfront License Fee and each Milestone Payment shall be nonrefundable and non-creditable against any other payments due hereunder.
7.9.2 Royalty Payments and Reports. [***]
7.9.3 Sales Forecast[***]
31
7.10 Taxes and Withholding.
7.10.1 VAT. The Parties agree to cooperate with one another and use reasonable efforts to ensure that value added tax or similar payment (“VAT”) in respect of any payments made by Licensee to Lilly under this Agreement does not represent an unnecessary cost in respect of payments made under this Agreement. For purposes of clarity, all sums payable under this Agreement shall be made by Licensee exclusive of VAT. In the event that any VAT is owing in any jurisdiction in respect of any such payment, Licensee shall pay such VAT, and (a) if such VAT is owing as a result of any action by Licensee, including any assignment or sublicense (including assignment to, or payment hereunder by, another Licensee-related entity or Affiliate), or any failure on the part of Licensee or its Affiliates to comply with Applicable Laws or filing or record retention requirements, that has the effect of modifying the tax treatment of the Parties hereto, then the payment in respect of which such VAT is owing shall be made without deduction for or on account of such VAT to ensure that Lilly receives a sum equal to the sum which it would have received had such VAT not been due or (b) otherwise, such payment shall be made after deduction of such VAT. In the event that any deducted VAT is later recovered by Licensee or an Affiliate, Licensee shall reimburse Lilly [***] for the deducted amount. For the sake of clarity, any increase in payments to Lilly under this Section 7.10.1 shall reflect only the incremental increase in VAT directly resulting from clause (a) above. In the event that any VAT is owed in any jurisdiction in respect of any such payment, Lilly will provide to Licensee tax invoices showing the correct amount of VAT in respect of such payments hereunder.
7.10.2 Withholding Tax Matters. If Licensee is required to make a payment to Lilly subject to a deduction of tax or withholding tax, the sum payable by Licensee (in respect of which such deduction or withholding is required to be made) shall be made to Lilly after deduction of the amount required to be so deducted or withheld, which deducted or withheld amount shall be remitted in accordance with Applicable Laws. If such withholding tax is owing as a result of any action by Licensee, including any assignment or sublicense (including assignment to, or payment hereunder by, another Licensee-related entity or Affiliate), or any failure on the part of Licensee or its Affiliates to comply with Applicable Laws or filing or record retention requirements, that has the effect of modifying the tax treatment of the Parties hereto, then the payment in respect of which such withholding tax is owing shall be made without deduction for such withholding tax to ensure that Lilly receives a sum equal to the sum which it would have received had such withholding tax not been due.
7.10.3 Tax Cooperation. To the extent Licensee is required to deduct and withhold taxes on any payments to Lilly, Licensee shall pay the amounts of such taxes to the proper Governmental Authority in a timely manner and promptly transmit to Lilly an official tax certificate or other evidence of such withholding sufficient to enable Lilly to claim such payments of taxes. In the event that Licensee is required to deduct and withhold taxes on payments to Lilly, Licensee shall provide Lilly prompt notice and identify any forms reasonably necessary in order for Licensee not to withhold tax or to withhold tax at a reduced rate under an applicable bilateral income tax treaty. Lilly shall provide to Licensee any completed tax forms that may be reasonably necessary in order for Licensee not to withhold tax or to withhold tax at a reduced rate under an applicable bilateral income tax treaty. Lilly shall use reasonable efforts to provide any such tax forms to Licensee [***] prior to the due date for any payments for which Lilly desires that Licensee apply a reduced withholding rate. Each Party shall provide the other with reasonable assistance to enable the recovery, as permitted by Applicable Laws, of withholding taxes, VAT or similar obligations resulting from payments made under this Agreement, such recovery to be for the benefit of the Party bearing such withholding tax or VAT.
32
7.11 Currency Conversion. All payments hereunder shall be made in Dollars. For the purpose of calculating any sums due under, or otherwise reimbursable pursuant to, this Agreement (including the calculation of Net Sales expressed in currencies other than Dollars), any amount expressed in a foreign currency shall be converted into Dollars in a manner consistent with such Party’s normal practices used to prepare its audited financial statements for external reporting purposes, in accordance with GAAP, consistently applied, or by using a reputable source such as the Wall Street Journal or Reuters, at Lilly’s discretion.
7.12 Late Payments. Any amount required to be paid by a Party hereunder which is not paid on the date due shall bear interest [***]. Such interest shall be computed on the basis of a year of 360 days for the actual number of days payment is delinquent calculated from the last day that payment was due until actual payment.
7.13 Records. Licensee and its Related Parties shall keep full, true and accurate records and books of account in reasonable detail and containing all particulars that may be necessary for the purpose of confirming the accuracy of, and calculating, as applicable, all Royalty Payments and other amounts payable to Lilly hereunder (including records of Net Sales), any records required by Applicable Law or for intellectual property protection purposes with respect to the Compound and Product, and any other records reasonably required to be maintained with respect to Licensee’s obligations under this Agreement [***]. Licensee and its Related Parties shall maintain internal accounting controls sufficient to provide reasonable assurances that all transactions are executed in accordance with management authorization and recorded as necessary to permit the preparation of financial statements that conform to generally accepted accounting principles, that access to assets is permitted only in accordance with management authorization, and that recorded accountability for assets is compared to existing assets regularly and appropriate action is taken for any differences.
7.14 Audits. Lilly shall have a right to request an audit of Licensee in order to confirm the accuracy of the records described in Section 7.13 (an “Audit”); [***].
7.15 Equity Issuance. As consideration for the entry into this Agreement (and for the avoidance of doubt, no other consideration), JATT Acquisition Corp, a Cayman Islands exempted company (“JATT”), has agreed to issue to Lilly securities of JATT in an amount equal to 550,000 JATT ordinary shares listed on the Nasdaq Capital Market, as adjusted for any stock splits, stock dividends, reorganizations, recapitalizations and the like (the “JATT Shares”), on such terms as the Parties have agreed in the Equity Grant Agreement dated as of the date hereof (the “JATT Grant Agreement”). [***] In the event that the “Transaction” as defined in the JATT Grant Agreement closes, and JATT breaches its obligation to issue the JATT Shares pursuant to the terms of the JATT Grant Agreement, Lilly may, without prejudice to any other remedies available to it at law or in equity, terminate this Agreement in its entirety upon written notice to Licensee. For the avoidance of doubt, Lilly shall have the option, in its sole discretion, not to accept any or all of the securities issuable pursuant to this Section 7.15 if it so desires.
33
ARTICLE 8
INTELLECTUAL PROPERTY MATTERS
8.1 Ownership. [***]
8.2 Patent Filing, Prosecution and Maintenance. [***]
8.3 Patent and Trademark Oppositions. Licensee shall consult with Lilly prior to deciding whether and how to participate in Patent oppositions and other activities intended to invalidate a Third Party’s Patents or trademarks.
8.4 Abandoned Patents. [***]
8.5 Notice. Each Party shall promptly provide written notice to the other Party reasonably detailing any known or alleged infringement of any Licensed Patent or if it receives notice by an ANDA applicant of a certification under 21 USC 355(b)(2)(a) or 355(j)(2)(A)(vii) with respect to any Licensed Patent.
8.6 Enforcement of Intellectual Property Rights. [***]
8.7 Cooperation in Enforcement Proceedings. For any action by a Party pursuant to Section 8.6, in the event that such Party is unable to initiate or prosecute such action solely in its own name, the other Party or its Affiliates, as applicable, will join such action voluntarily and will execute all documents necessary for such Party to initiate, prosecute and maintain such action. If either Party initiates an enforcement action pursuant to Section 8.6, then, at such Party’s request, the other Party shall cooperate to the extent reasonably necessary and at the first Party’s sole expense for reasonable, out-of-pocket costs (except for the expenses of the non-controlling Party’s counsel, if any). Upon the reasonable request of the Party instituting any such action or if necessary to continue such action, such other Party shall join the suit and can be represented in any such legal proceedings using counsel of its own choice at its own expense. Each Party shall, if possible, assert and not waive the joint defense privilege with respect to all communications between the Parties reasonably the subject thereof with respect to any such action.
8.8 Defense. Each Party shall notify the other in writing of any allegations it receives from a Third Party that the manufacture, production, use, Development, Commercialization, sale or distribution of the Product, or any technology or intellectual property licensed under this Agreement, infringes the intellectual property rights of such Third Party. Such notice shall be provided promptly [***] following receipt of such allegations.
[***]
The Parties shall keep each other informed of the status of and of their respective activities regarding any infringement litigation initiated by a Third Party concerning the manufacture, production, use, Development, Commercialization sale or distribution of the Product or settlement thereof; provided, however, that no settlement or consent judgment or other voluntary final disposition of a suit under this Section 8.8 may be undertaken by a Party without the consent of the other Party, which consent shall not be unreasonably withheld or delayed.
34
8.9 Employees. To the extent allowed by Applicable Laws, Licensee will require all of its (and will cause each of its applicable Affiliates to require all of such Affiliate’s) employees to assign all Inventions that are developed, made or conceived by such employees during the period of such employees’ employment with Licensee (or the applicable Affiliate) to Licensee (or the applicable Affiliate) free and clear of all liens, encumbrances, charges, security interests, mortgages or other similar restrictions. Licensee will also use its [***] to require any agents or independent contractors performing an activity pursuant to this Agreement to assign all Inventions that are developed, made or conceived by such agents or independent contractors on behalf of Licensee during the period of such agents or independent contractors’ relationship with Licensee to Licensee free and clear of all liens, encumbrances, charges, security interests, mortgages or other similar restrictions.
8.10 Patent Marking. Licensee shall mark the Product marketed and sold by Licensee (or its Related Parties) hereunder with appropriate patent numbers or indicia.
[***]. [***]
ARTICLE 9
REPRESENTATIONS, WARRANTIES AND COVENANTS; COMPLIANCE
9.1 Mutual Representations and Warranties. Each Party hereby represents and warrants to the other Party as follows, as of the Effective Date:
9.1.1 Corporate Existence and Power. It is a company or corporation duly organized, validly existing, and in good standing under the laws of the jurisdiction in which it is incorporated, and has full corporate power and authority and the legal right to own and operate its property and assets and to carry on its business as it is now being conducted and as contemplated in this Agreement, including the right to grant the licenses granted by it hereunder.
9.1.2 Authority and Binding Agreement. (a) It has the corporate power and authority and the legal right to enter into this Agreement and perform its obligations hereunder, (b) it has taken all necessary corporate action on its part required to authorize the execution and delivery of this Agreement and the performance of its obligations hereunder, and (c) this Agreement has been duly executed and delivered on behalf of such Party, and constitutes a legal, valid and binding obligation of such Party that is enforceable against it in accordance with its terms, except as enforcement may be affected by bankruptcy, insolvency or other similar laws and by general principles of equity.
9.1.3 No Conflicts. The execution, delivery and performance of this Agreement by it does not (a) conflict with any agreement, instrument or understanding, oral or written, to which it is a party and by which it may be bound or (b) violate any Applicable Laws.
35
9.1.4 All Consents and Approvals Obtained. Except with respect to Regulatory Approvals for the Development, Manufacturing or Commercialization of the Product or as otherwise described in this Agreement, (a) all necessary consents, approvals and authorizations of, and (b) all notices to, and filings by such Party with, all Governmental Authorities and other Persons required to be obtained or provided by such Party as of the Effective Date in connection with the execution, delivery and performance of this Agreement have been obtained and provided, except for those approvals, if any, not required at the time of execution of this Agreement.
9.2 Additional Representations and Warranties of Lilly. Lilly hereby represents and warrants to Licensee that, as of the Effective Date:
9.2.1 Lilly has not filed any Marketing Authorization Applications with a Governmental Authority in the Territory for the sale of the Product in the Field in the Territory.
9.2.2 Lilly has not granted or assigned any right to the Licensed Patents and, to its knowledge, the Licensed Know-How in the Field and in the Territory.
9.2.3 Lilly is the owner or licensee of the Licensed Patents and Licensed Know-How.
9.2.4 To its knowledge Lilly has complied with all Applicable Laws in all material respects, including any disclosure requirements, in connection with the filing, prosecution and maintenance of the Licensed Patents owned by Lilly in the Field and in the Territory.
9.2.5 Neither Lilly nor, to the knowledge of Lilly, its subcontractors, has received written notice of any proceedings pending before or threatened by any Regulatory Authority with respect to the Product.
9.2.6 [***]
9.2.7 [***]
9.3 Additional Representations, Warranties and Covenants of Licensee. Licensee hereby represents, warrants and covenants to Lilly that, as of the Effective Date and throughout the Term:
9.3.1 To the knowledge of Licensee, no claim or demand of any Person has been asserted in writing to Licensee that challenges the rights of Licensee to use or license any of the Licensee Technology.
9.3.2 To its knowledge, Licensee has complied and will comply with all Applicable Laws, in all material respects, including any disclosure requirements, in connection with the filing, prosecution and maintenance of the Licensee Patents owned by Licensee in the Territory.
9.3.3 Licensee’s compensation programs for its Sales Representatives will not provide financial incentives for the promotion, sales, and marketing of the Product in violation of any Applicable Laws or any professional requirements.
36
9.3.4 Licensee’s medical, regulatory and legal teams will review all training materials and programs prior to use by Licensee to ensure that all training materials and programs are in accordance with the Regulatory Approvals and Applicable Laws.
9.3.5 Product Commercialized or Manufactured by, or under authority of, Licensee shall be packaged, labeled, handled, stored and shipped by Licensee in compliance with all Applicable Laws, including GMPs.
9.4 Financial Representations, Warranties and Covenants of Licensee.
9.4.1 Financial Status. Licensee hereby represents, warrants and covenants to Lilly that, as of the Effective Date and throughout the Term, Licensee has and shall have the financial wherewithal to perform its obligations under this Agreement. Licensee shall promptly notify Lilly of any material adverse change to said financial wherewithal that is adversely impacting, or may adversely impact, Licensee’s ability to perform, or to continue to perform, such obligations. Any such notice will include a description of Licensee’s short- and long-term plans to remediate its current financial situation and to mitigate any impact on the performance of its obligations hereunder. Licensee shall provide Lilly regular updates regarding such remediation plans.
9.4.2 Financial Statements.
(a) As soon as available [***] Licensee shall provide to Lilly a copy of the annual audit report for such year including a copy of the audited consolidated balance sheet of Licensee and its Affiliates as of the end of such year, and the related audited consolidated statements of income and of cash flows for such year, setting forth of Licensee and its Affiliates, in each case in comparative form the figures for the previous year, together with an opinion as to such audit report of Licensee’s independent certified public accountant auditor.
(b) As soon as available [***] Licensee shall provide to Lilly a copy of the unaudited quarterly report of Licensee and its Affiliates for such quarter including a copy of the unaudited consolidated balance sheet of Licensee and its Affiliates as at the end of such quarter and the related unaudited consolidated statements of income and of cash flows for such quarter and the portion of the fiscal year through the end of such quarter, certified by Licensee’s Chief Financial Officer as being fairly stated in all material respects (subject to normal year-end audit adjustments).
(c) All such financial statements shall be complete and correct in all material respects and shall be prepared in reasonable detail and in accordance with GAAP applied (except as approved by such accountants or Chief Financial Officer, as the case may be, and disclosed in reasonable detail therein) consistently throughout the periods reflected therein and with prior periods.
37
9.5 Compliance Representations, Warranties and Covenants by Licensee.
9.5.1 Compliance with Laws. In connection with this Agreement, Licensee has complied and will comply with all Applicable Laws and industry codes, including those dealing with government procurement, conflicts of interest, corruption or bribery, including the U.S. Foreign Corrupt Practices Act of 1977, as amended, any anti-corruption or anti-bribery laws in jurisdictions where Licensee operates, and any laws enacted to implement the Organisation of Economic Cooperation and Development Convention on Combating Bribery of Foreign Officials in International Business Transactions (collectively, “Anti-Corruption Laws”), and all Applicable Laws related to sanctions and trade controls, including but not limited to any sanctions or export control laws administered or enforced by the U.S. Department of the Treasury’s Office of Foreign Assets Control, U.S. Department of State, U.S. Department of Commerce, the United Nations Security Council, or other relevant sanctions authority (collectively, “Trade Laws”), and has implemented and will maintain policies and procedures reasonably designed to ensure compliance with Anti-Corruption Laws and Trade Laws.
9.5.2 Prohibited Conduct. In connection with this Agreement, Licensee has not made, offered, given, promised to give, or authorized, and will not make, offer, give, promise to give, or authorize, any bribe, kickback, payment or transfer of anything of value, directly or indirectly, to any person or to any Government Official for the purpose of (a) improperly influencing any act or decision of the person or Government Official, (b) inducing the person or Government Official to do or omit to do an act in violation of a lawful or otherwise required duty, (c) securing any improper advantage, or (d) inducing the person or Government Official to improperly influence the act or decision of any organization, including any government or government instrumentality, to assist Licensee or Lilly in obtaining or retaining business.
9.5.3 Compliance with Privacy Laws. In connection with and to the extent applicable under this Agreement, Licensee and any Person acting for or on its behalf, will comply with all Applicable Laws with respect to the receipt, collection, compilation, use, storage, processing, sharing, safeguarding, security (technical, physical and administrative), disposal, destruction, disclosure, or transfer (including cross-border) of Personal Information, including providing any notice, obtaining any consent or prior authorization, and conducting any assessment required under Applicable Laws.
9.5.4 Requests for Information; Audits. Licensee will make [***] to comply with requests for disclosure of information, including answering questionnaires and audit inquiries, to enable Lilly to ensure compliance with all Applicable Laws, including Anti-Corruption Laws, Trade Laws, and this Agreement, and will comply with the terms of Section 7.14 with regard to any audit requested under that provision that relates to compliance with this Section 9.5.
9.5.5 Notice of Inspections. Licensee shall provide Lilly with immediate notice of any governmental or regulatory review, audit or inspection of its facility, processes or products that might relate to the subject matter of this Agreement. Licensee shall provide Lilly with the results of any such review, audit or inspection. Lilly shall be given the opportunity to provide assistance to Licensee in responding to any such review, audit or inspection.
9.5.6 Cooperation in Investigation. Licensee agrees to cooperate in good faith to investigate the extent of any potential violations of Applicable Law, including Anti-Corruption Laws and Trade Laws, in connection with this Agreement.
9.5.7 Disclosure Rights. At any time, and without notice to the other Party, either Party may disclose information relating to a possible violation of Applicable Law, or the existence of the terms of this Agreement, including the compensation provisions, to a government agency and to anyone that such Party determines to have a legitimate need to know.
38
9.6 Additional Compliance Covenants.
9.6.1 Compliance with Party Specific Regulations. The Parties agree to cooperate with each other as may reasonably be required to ensure that each is able to fully meet its obligations with respect to the Party-Specific Regulations applicable to it. Neither Party shall be obligated to pursue any course of conduct that would result in such Party being in material breach of any Party-Specific Regulation applicable to it. All Party-Specific Regulations are binding only in accordance with their terms and only upon the Party to which they relate.
9.6.2 Compliance with Internal Compliance Codes. All Internal Compliance Codes shall apply only to the Party to which they relate. The Parties agree to cooperate with each other to ensure that each Party is able to comply with the substance of its respective Internal Compliance Codes and, to the extent practicable, to operate in a manner consistent with its usual compliance-related processes.
9.7 Disclaimer. Licensee understands that the Product is the subject of ongoing non-clinical and clinical research and development and that Lilly cannot ensure the safety or usefulness of the Product or that the Product will receive Regulatory Approvals. In addition, Lilly makes no warranties except as set forth in this Article 9 concerning the Licensed Technology.
9.8 No Other Representations or Warranties. EXCEPT AS EXPRESSLY STATED IN THIS AGREEMENT, NO REPRESENTATIONS OR WARRANTIES WHATSOEVER, WHETHER EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OR NON-MISAPPROPRIATION OF THIRD-PARTY INTELLECTUAL PROPERTY RIGHTS, ARE MADE OR GIVEN BY OR ON BEHALF OF A PARTY. EXCEPT AS EXPRESSLY STATED IN THIS AGREEMENT, ALL REPRESENTATIONS AND WARRANTIES, WHETHER ARISING BY OPERATION OF LAW OR OTHERWISE, ARE HEREBY EXPRESSLY EXCLUDED.
ARTICLE 10
INDEMNIFICATION
10.1 Indemnification by Lilly. Lilly hereby agrees to save, indemnify, defend and hold Licensee, its Affiliates, and their respective directors, officers, agents and employees harmless from and against any and all losses, damages, liabilities, costs and expenses (including reasonable attorneys’ fees and expenses) (collectively, “Losses”) arising in connection with any and all charges, complaints, actions, suits, proceedings, hearings, investigations, claims, demands, judgments, orders, decrees, stipulations or injunctions by a Third Party (each, a “Claim”) to the extent resulting or otherwise arising from [***] in each case except to the extent that such Losses are subject to indemnification by Licensee pursuant to Section 10.2.
10.2 Indemnification by Licensee. Licensee hereby agrees to save, indemnify, defend and hold Lilly, its Affiliates, and their respective directors, agents and employees harmless from and against any and all Losses arising in connection with any and all Claims to the extent resulting or otherwise arising from [***] in each case except to the extent that such Losses are subject to indemnification by Lilly pursuant to Section 10.1.
39
10.3 Indemnification Procedures.
10.3.1 A Party believing that it is entitled to indemnification under, as applicable, Section 10.1 or Section 10.2 (an “Indemnified Party”) shall give prompt written notification to the other Party (the “Indemnifying Party”) of the commencement of any Claim for which indemnification may be sought or, if earlier, upon the assertion of any such Claim by a Third Party (it being understood and agreed, however, that the failure by an Indemnified Party to give notice of a Claim as provided in this Section 10.3.1 shall not relieve the Indemnifying Party of its indemnification obligation under this Agreement except and only to the extent that such Indemnifying Party is actually materially prejudiced as a result of such failure to give notice). Within 30 days after delivery of such notification, the Indemnifying Party may, upon written notice thereof to the Indemnified Party, assume control of the defense of such Claim with counsel reasonably satisfactory to the Indemnified Party. If a Party believes that a Claim presented to it for indemnification is one as to which the Party seeking indemnification is not entitled to indemnification under Section 10.1 or Section 10.2, as applicable, it shall so notify the Party seeking indemnification.
10.3.2 If the Indemnifying Party elects to assume the defense of such Claim, the Indemnified Party may participate in such defense at its own expense; provided, that if the Indemnified Party reasonably concludes, based on advice from counsel, that the Indemnifying Party and the Indemnified Party have conflicting interests with respect to such Claim, the Indemnified Party shall have the right, at its own expense, to appoint its own counsel solely in connection with the defense of such Claim.
10.3.3 The Indemnifying Party shall keep the Indemnified Party advised of the status of such Claim and the defense thereof and shall consider recommendations made by the Indemnified Party with respect thereto.
10.3.4 The Indemnified Party shall not agree to any settlement of such Claim without the prior written consent of the Indemnifying Party, which shall not be unreasonably withheld. The Indemnifying Party shall not agree to any settlement of such Claim or consent to any judgment in respect thereof that does not include a complete and unconditional release of the Indemnified Party from all liability with respect thereto or that imposes any liability or obligation on the Indemnified Party or adversely affects the Indemnified Party without the prior written consent of the Indemnified Party, which shall not be unreasonably withheld.
10.4 Limitation of Liability. NEITHER PARTY SHALL BE LIABLE TO THE OTHER FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES ARISING FROM OR RELATING TO THIS AGREEMENT, WHETHER OR NOT FORESEEABLE AND REGARDLESS OF ANY NOTICE OF THE POSSIBILITY OF SUCH DAMAGES. NOTWITHSTANDING THE FOREGOING, NOTHING IN THIS SECTION 10.4 IS INTENDED TO OR SHALL LIMIT OR RESTRICT, AND THIS SECTION 10.4 SHALL NOT APPLY TO: (A) THE INDEMNIFICATION RIGHTS OR OBLIGATIONS OF ANY PARTY UNDER SECTIONS 10.1 OR 10.2, (B) A PARTY’S BREACH OF CONFIDENTIALITY OBLIGATIONS UNDER ARTICLE 11, (C) THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF A PARTY OR ITS RELATED PARTIES, (D) LICENSEE’S OBLIGATIONS TO PAY ANY AMOUNTS REQUIRED TO BE PAID UNDER SECTIONS 7.1, 7.2, 7.3, 7.5, OR 7.9, OR TO ISSUE EQUITY AS REQUIRED UNDER SECTION 7.15, OR (E) LICENSEE’S BREACH OF SECTIONS 2.4 OR 2.5.
40
10.5 Insurance. Licensee shall procure and maintain insurance, including clinical trials insurance and product liability insurance, adequate to cover its obligations hereunder and which is consistent with normal business practices of prudent companies similarly situated at all times during which the Product is being clinically tested in human subjects or commercially distributed or sold by Licensee pursuant to this Agreement, [***].
ARTICLE 11
CONFIDENTIALITY
11.1 Confidential Information.
11.1.1 The Parties agree that during the Term [***] a Party receiving Confidential Information of the other Party will (a) maintain in confidence such Confidential Information to the same extent such Party maintains its own proprietary information of similar kind and value, (b) not disclose such Confidential Information to any Third Party without the prior written consent of the other Party, except as otherwise expressly permitted below, and (c) not use such Confidential Information for any purpose except those permitted by this Agreement. As used herein, “Confidential Information” means all Know-How and other information and materials received by either Party from the other Party or its Affiliates pursuant to this Agreement. The foregoing obligations and the other obligations set forth in this Section 11.1 shall not apply with respect to any portion of such Confidential Information which:
(a) is publicly disclosed by the disclosing Party, either before or after it becomes known to the receiving Party;
(b) was known to the receiving Party or any or its Affiliates, without any obligation to keep it confidential, prior to when it was received from the disclosing Party;
(c) is subsequently disclosed to the receiving Party or any of its Affiliates by a Third Party that is lawfully in possession thereof without obligation to keep it confidential;
(d) has been published by a Third Party or otherwise enters the public domain through no fault of the receiving Party or any of its Affiliates in breach of this Agreement; or
(e) has been independently developed or acquired by the receiving Party or any of its Affiliates without the aid, application or use of the disclosing Party’s Confidential Information.
41
11.1.2 The receiving Party shall have the right to disclose any Confidential Information provided by the other Party hereunder if such disclosure is necessary to comply with the terms and conditions of this Agreement, or the requirements of any Applicable Law, but only to the extent of such necessity or requirements, and no such disclosure shall cause any such information to cease to be Confidential Information hereunder, except to the extent such disclosure results in a public disclosure of such information. Where reasonably possible, the receiving Party shall notify the disclosing Party of the receiving Party’s intent to make such disclosure of Confidential Information pursuant to the preceding sentence sufficiently prior to making such disclosure so as to allow the disclosing Party adequate time to take whatever action the disclosing Party may deem to be appropriate to protect the confidentiality of the Confidential Information.
11.1.3 Except as set forth above, each Party agrees that it shall provide or permit access to Confidential Information of the other Party only to (a) the receiving Party’s attorneys, independent accountants and financial advisors for the sole purpose of enabling such attorneys, independent accountants and financial advisors to provide advice to the receiving Party, (b) the receiving Party’s Affiliates, directors, officers, employees, consultants, advisors and permitted subcontractors, sub-licensees and sub-distributors, and to the directors, officers, employees, consultants, advisors and permitted subcontractors, sub-licensees and sub-distributors of such Affiliates, who have a need to know such Confidential Information to assist the receiving Party with the research, Development, Manufacturing or Commercialization activities contemplated or required of it by this Agreement; provided that in each case the Person to whom Confidential Information is being disclosed is subject to obligations of confidentiality and non-use with respect to such Confidential Information substantially similar to the obligations of confidentiality and non-use of the receiving Party pursuant to this Section 11.1, and (c) potential investors and acquirers in connection with bona fide financing or acquisition due diligence; provided that in each case the Person to whom Confidential Information is being disclosed is subject to obligations of confidentiality and non-use with respect to such Confidential Information substantially similar to the obligations of confidentiality and non-use of the receiving Party pursuant to this Section 11.1; and provided, further, that each Party shall remain responsible for any failure by its attorneys, independent accountants and financial advisors, Affiliates, and its and its Affiliates’ respective directors, officers, employees, consultants, advisors and permitted subcontractors, sub-licensees and sub-distributors, and any other parties to whom such Confidential Information is disclosed, to treat such Confidential Information as required under this Section 11.1.
For clarity, either Party may disclose without any limitation such Party’s U.S. federal income tax treatment and the U.S. federal income tax structure of the transactions relating to such Party that are based on or derived from this Agreement, including a complete copy of this Agreement and any amendments thereto.
11.1.4 Each Party acknowledges that a Party in breach of any of its obligations under this Section 11.1 may cause the non-breaching Party irreparable harm, for which monetary damages may be an inadequate remedy. Therefore, notwithstanding anything to the contrary in this Agreement in the event of any such breach, the non-breaching Party shall be entitled, in addition to any other remedy available to it under this Agreement, at law or in equity, to seek injunctive relief, including an accounting for profits, specific performance of the terms hereof and other equitable relief for such breach, without the posting of bond or other security.
42
11.2 Publicity. It is understood that Lilly and Licensee may each desire or be required to issue press releases or other public statements relating to this Agreement or activities hereunder, and Lilly and Licensee each agree not to issue any press release or other public statement disclosing information relating to this Agreement or the transactions contemplated hereby or the terms hereof without the prior written consent of such Party, not to be unreasonably withheld. Notwithstanding the foregoing, no such consent shall be required by Lilly or Licensee with respect to (a) the publication of materials or information that have been previously disclosed, so long as the content of such publication remains accurate at the time of disclosure, or (b) any disclosure which is required by Applicable Law or the rules of the U.S. Securities and Exchange Commission or any securities exchange. In addition, following the initial press release announcing this Agreement, either Party shall be free to disclose, without the other Party’s prior written consent, the existence of this Agreement, the identity of the other Party and those terms of the Agreement which have already been publicly disclosed in accordance herewith.
11.3 Securities Filings. In the event Licensee proposes to file with the U.S. Securities and Exchange Commission or the securities regulators of any state or other jurisdiction under the Securities Act of 1933, as amended, the Securities Exchange Act of 1934, as amended, or any other applicable securities law a registration statement or any other disclosure document which describes or refers to this Agreement, Licensee shall notify Lilly of such intention and shall provide Lilly with a copy of relevant portions of the proposed filing [***] prior to such filing (and any revisions to such portions of the proposed filing a reasonable time prior to the filing thereof), and shall use reasonable efforts to obtain confidential treatment of any information that Lilly requests be kept confidential. For clarity, Lilly or any parent of Lilly may, at its discretion, file with the U.S. Securities and Exchange Commission or the securities regulators of any state or other jurisdiction under the Securities Act of 1933, as amended, the Securities Exchange Act of 1934, as amended, or any other applicable securities law, a registration statement or any other disclosure document which describes or refers to this Agreement.
11.4 Publications. Except for disclosures permitted under this Agreement, if Licensee, its Affiliates, or their respective employee(s) or consultant(s) wishes to make a publication related to the Product or which otherwise may reasonably contain Licensed Know-How, or other Confidential Information, of Lilly, Licensee shall deliver to Lilly a copy of the proposed written publication or an outline of an oral disclosure [***] prior to submission for publication or presentation. Notwithstanding anything to the contrary herein, neither Licensee nor any Related Party of Licensee shall use any of Lilly’s or its Affiliates’ trademarks, names, logos or housemarks in connection with any publication related to the Product, Licensee, or a Related Party of Licensee’s business without the express written consent of Lilly or its Affiliates.
11.5 Use of Names. Except as otherwise set forth in this Agreement, neither Party shall use the name of the other Party in relation to this transaction in any public announcement, press release or other public document without the written consent of such other Party, which consent shall not be unreasonably withheld; provided, however, that subject to Section 11.4, either Party may use the name of the other Party in any document filed with any Regulatory Authority or Governmental Authority, including the Securities and Exchange Commission.
11.6 Unauthorized Disclosure of Confidential Information. Each Party shall have a response plan in place for any disclosure of Confidential Information that is not authorized or otherwise permitted under this Agreement. Such plan shall include considerations of, among other things, notification, remediation and retrieval. In the event that a Party becomes aware of an unauthorized disclosure of Confidential Information, then such Party shall notify the other Party promptly in writing.
43
11.7 Survival. The obligations and prohibitions contained in this Article 11 as they apply to Confidential Information shall survive the expiration or termination of this Agreement for a period of ten (10) years.
ARTICLE 12
TERM AND TERMINATION
12.1 Term. This Agreement shall become effective on the Effective Date and, unless earlier terminated pursuant to this Article 12, shall remain in effect on a country-by-country basis until the expiration of the Royalty Term in such country (the “Term”).
12.2 Termination for Material Breach. Either Party may, first having tried and failed to resolve a Dispute in accordance with Section 14.1, and without prejudice to any other remedies available to it at law or in equity, terminate this Agreement in its entirety upon written notice to the other Party in the event that the other Party (the “Breaching Party”) materially breached or defaulted in the performance of any of its obligations (including a failure to perform). Unless the Breaching Party has cured or remedied any such breach or default upon the conclusion of the dispute resolution procedure in Section 14.1, such termination shall become effective upon the Breaching Party’s receipt of the written notice of termination to be given [***] upon the conclusion of the dispute resolution procedure in Section 14.1.
12.2.1 Licensee Option to Continue Agreement. If Lilly materially breaches this Agreement, as finally determined under Article 14, such that Licensee would otherwise have the right to terminate this Agreement under Section 12.2, Licensee shall have the option, in lieu of terminating this Agreement, to terminate Licensee’s diligence obligations under Sections 3.1, 5.1, and 6.1 by written notice to Lilly. Notwithstanding anything to the contrary herein, Licensee’s option to continue this Agreement in accordance with this Section 12.2.1 shall be Licensee’s sole and exclusive remedy for any such material breach by Lilly and to the extent permitted by Applicable Laws, Licensee shall not assert, and hereby waives, any claim against Lilly or any of its Affiliates, on any theory of liability, for any damages or losses (including any direct, actual, special, indirect, consequential or punitive damages or losses) arising out of, in connection with, or as a result of, Lilly’s material breach of this Agreement or any agreement or instrument contemplated hereby. For clarity, this Agreement will continue in accordance with its terms, save as expressly set forth in this Section 12.2.1.
12.3 Termination for Non-Payment. Lilly may, without prejudice to any other remedies available to it at law or in equity, terminate this Agreement in its entirety upon written notice to Licensee in the event that Licensee fails to (a) pay in full, when due and not subject to a bona fide Dispute submitted to Lilly prior to the due date for such payment and subject to the dispute resolution procedure in Section 14.1, any amount required to be paid under Section 7.1, 7.2, 7.3, or 7.4 or (b) pay in full, when due, and not subject to a bona fide Dispute submitted to Lilly prior to the due date for such payment and subject to the dispute resolution procedure in Section 14.1, any Royalty Payment required to be paid under Section 7.9; provided, however, Licensee shall pay all amounts or portions thereof not the subject of a bona fide Dispute when due. [***]
44
12.4 Termination Related to Major Financing Event. Lilly may, without prejudice to any other remedies available to it at law or in equity, terminate this Agreement in its entirety upon written notice to Licensee in the event that at the Major Financing Event Deadline there has been no Major Financing Completion as set forth in Section 7.4 and no payment of the Major Financing Event Milestone Payment.[***]
12.5 [***]
12.6 Termination for Suspected Compliance Breach. Without limitation of its rights under this Article 12, Lilly may, without prejudice to any other remedies available to it at law or in equity, terminate this Agreement in its entirety upon written notice in the event of a breach by Licensee of any of the compliance representations, warranties and covenants set forth in Section 9.5.
ARTICLE 13
EFFECTS OF EXPIRATION OR TERMINATION
13.1 Expiration of Licenses. Upon the expiration (but not termination) of this Agreement in accordance with its terms, the licenses granted to Licensee under this Agreement shall become fully paid-up, royalty-free, non-exclusive, perpetual and irrevocable.
13.2 Termination. Upon termination (but not expiration) of this Agreement, in its entirety, or with respect to any given country(ies), [***].
13.3 Rights upon Termination. Except for an uncured material breach by Lilly resulting in termination by Licensee under Section 12.2, upon termination (but not expiration) of this Agreement, in its entirety, or with respect to any given country(ies), Licensee will promptly, [***] and at no cost to Lilly, do the following (but to the extent this Agreement is only terminated with respect to one or more countries, then the following shall only apply with respect to terminated countries; provided that upon such termination by country, where any of the following cannot be conducted, allocated or assigned on a country-by-country basis, Licensee shall, at Lilly’s sole discretion, enter into agreements to provide Lilly or its designee with the benefit of such agreement, right, or interest as if this Agreement had been terminated in its entirety):
(a) assign to Lilly, at Lilly’s sole discretion and direction, all of Licensee’s right, title and interest in and to any agreements (or portions thereof) between Licensee and Third Parties that relate to the Development, Commercialization or Manufacture of the Product, including the right to enforce any such agreements;
(b) With respect to the Product, Licensee (i) hereby grants Lilly, effective upon the expiration or the effective date of termination of this Agreement, as applicable, a perpetual, irrevocable, fully paid-up, royalty free, non-exclusive license, with the right to grant sublicenses at any tier, under all Licensee Technology, and trademarks developed for or used to Commercialize the Product, to Develop, Manufacture, and Commercialize the Product(s) in the Territory and (ii) shall promptly assign and transfer to Lilly or its designee all Product Trademarks and Product Trade Dress developed for or used to Commercialize the Product that are held or controlled by or under authority of Licensee, and shall take such actions and execute such other instruments, assignments and documents as may be necessary to effect the assignment and transfer of such Product Trademarks and Product Trade Dress to Lilly.
45
(c) assign to Lilly, at Lilly’s sole discretion and direction, all of Licensee’s right, title and interest in and to any (i) Promotional Materials, (ii) copyrights and trademarks (including the Product trademarks and Product trade dress), including any goodwill associated therewith, and any registrations and design patents for the foregoing, and (iii) any Internet domain name registrations for such trademarks and slogans, all to the extent solely related to the Product; provided, however, that in the event Lilly exercises such right to have assigned such Promotional Materials, Licensee shall grant, and hereby does grant, a royalty-free right and license to any housemarks, trademarks, names and logos of Licensee contained therein [***] in order to use such Promotional Materials in connection with the Commercialization of the Product. The Parties recognize that early termination of this Agreement requires both discussion and coordination between the Parties to ensure patient safety, continuity of treatment, if appropriate, and compliance with Applicable Laws. Upon early termination of this Agreement, the Parties shall cooperate to provide for an orderly transition or cessation of any clinical trials for the Territory, as requested by Lilly. Each Party further agrees to take no action or forego taking action if such action or forbearance would in any manner jeopardize patient safety or cause the other Party to violate any Applicable Laws;
(d) assign to Lilly, at Lilly’s sole discretion and direction, the management and continued performance of any clinical trials for the Product ongoing hereunder as of the effective date of such expiration or termination in respect of which Lilly shall assume full financial responsibility from and after the effective date of such expiration or termination. If Applicable Laws prevent or delay the transfer of ownership of Regulatory Materials to Lilly or its designee, Licensee shall grant, and does hereby grant, to Lilly or its designee an exclusive and irrevocable right of access and reference to such Regulatory Materials for the Licensed Product, and shall cooperate fully to make the benefits of such Regulatory Materials available to Lilly or its designee(s). [***] Licensee shall provide to Lilly or its designee copies of all such Regulatory Materials, and of all preclinical and clinical data (including raw data, original records, investigator reports, both preliminary and final, statistical analyses, expert opinions and reports, safety and other electronic databases) and other Know-How pertaining to the Licensed Product, or the manufacture thereof. Lilly shall be free to use and disclose such Regulatory Materials and other items in connection with the exercise of its rights and licenses under this Article;
(e) transfer to Lilly all of Licensee’s right, title and interest in and to any and all regulatory filings, Regulatory Approvals and other Regulatory Materials for the Product;
(f) transfer to Lilly all of Licensee’s right, title and interest in and to any and all Development Data and Commercialization Data Controlled by Licensee for the Product; and
46
(g) provide a copy of (i) the material tangible embodiments of the foregoing and (ii) any other material books, records, files and documents Controlled by Licensee solely to the extent related to the Product and which may be redacted to exclude Confidential Information of Licensee; provided, however, that to the extent that any agreement or other asset described in this Section 13.3 is not assignable by Licensee, then such agreement or other asset will not be assigned, and upon the request of Lilly, Licensee will take such steps as may be reasonably necessary to allow Lilly to obtain and to enjoy the benefits of such agreement or other asset. For purposes of clarity, (A) Lilly shall have the right to request that Licensee take any or all of the foregoing actions in whole or in part, or with respect to all or any portion of the assets set forth in the foregoing provisions and (B) to the extent Lilly requests Licensee to transfer its right, title and interest in the items set forth in this Section 13.3 to Lilly, Licensee shall also cause its Affiliates to transfer and assign to Lilly all of such Affiliates’ right, title and interest in and to the foregoing items set forth in this Section 13.3.
13.4 Disclosure and Delivery. Except for an uncured material breach by Lilly resulting in termination by Licensee under Section 12.2, upon termination (but not expiration) of this Agreement, in its entirety, or with respect to any given country(ies) (in which case such disclosure and delivery shall be with respect to Licensee Know-How relevant to that country(ies)), for use by Lilly only in such country(ies), Licensee will promptly, [***] and at no cost to Lilly, do the following: (a) Licensee will promptly transfer to Lilly copies of any physical embodiment of any Licensee Know-How, to the extent then used in connection with the Development or Commercialization of the Product (in the relevant country(ies) as the case may be); and (b) such transfer shall be effected by the delivery of material documents, to the extent such Licensee Know-How is embodied in such documents, and to the extent that Licensee Know-How is not fully embodied in such documents, Licensee shall make its employees and agents who have knowledge of such Licensee Know-How in addition to that embodied in documents available to Lilly for interviews, demonstrations and training to effect such transfer in a manner sufficient to enable Lilly to practice such Licensee Know-How but only in a manner as set out as follows in this Section 13.4. The appropriate technical teams at Lilly and Licensee will meet to plan transfer for the Licensee Know-How as follows: (i) Licensee’s designated representative(s) for the Product will meet with representatives from Lilly to answer questions with respect to the Licensee Know-How and establish a plan for the transfer for such Licensee Know-How (in the relevant country(ies) as the case may be); and (ii) Licensee will allocate adequate appropriately qualified representatives to work with Lilly to review the Licensee Know-How to enable the completion of the transfer within 30 days of the completion of the initial transfer planning meetings to the extent reasonable [***].
13.5 Disposition of Commercialization-Related Materials. Except for an uncured material breach by Lilly resulting in termination by Licensee under Section 12.2, upon termination (but not expiration) of this Agreement, Licensee will promptly deliver to Lilly in electronic, sortable form (a) a list identifying all wholesalers and other distributors involved in the Commercialization of the Product in the Territory as well as any customer lists (e.g., purchasers) related to the Commercialization of the Product in the Territory and (b) all Promotional Materials, as well as any items bearing the Product trademarks or Product trade dress and/or any trademarks or housemarks otherwise associated with the Product or Lilly; provided that to the extent this Agreement is only terminated with respect to one or more countries, then this Section 13.5 shall only apply with respect to terminated countries.
13.6 Accrued Rights. Expiration or termination of this Agreement for any reason will be without prejudice to any rights that will have accrued to the benefit of a Party prior to the effective date of such expiration or termination. Such expiration or termination will not relieve a Party from obligations that are expressly indicated to survive the expiration or termination of this Agreement.
47
13.7 Survival. Notwithstanding anything to the contrary contained herein, the following provisions shall survive any expiration or termination of this Agreement: Article 1 (Definitions), Article 11 (Confidentiality), Article 13 (Effects of Expiration or Termination), Article 14 (Dispute Resolution) and Article 15 (Miscellaneous) and Sections 7.13, 7.14, 9.5.4 - 9.5.7, 9.7, 9.8, 10.1 - 10.4. Except as set forth in this Article 13 or otherwise expressly set forth herein, upon expiration or termination of this Agreement, all other rights and obligations of the Parties shall cease.
13.8 Rights in Bankruptcy. All rights and licenses granted under or pursuant to this Agreement by Lilly and Licensee are, and shall otherwise be deemed to be, for purposes of Section 365(n) of the U.S. Bankruptcy Code, licenses of right to “intellectual property” as defined under Section 101 of the U.S. Bankruptcy Code. The Parties agree that each Party, as licensee of certain rights under this Agreement, shall retain and may fully exercise all of its rights and elections under the U.S. Bankruptcy Code. The Parties further agree that, in the event of the commencement of a bankruptcy proceeding by or against a Party (such Party, the “Bankrupt Party”) under the U.S. Bankruptcy Code, (a) the other Party shall be entitled to a complete duplicate of (or complete access to, as appropriate) any intellectual property licensed to such other Party and all embodiments of such intellectual property, which, if not already in such other Party’s possession, shall be promptly delivered to it (i) upon any such commencement of a bankruptcy proceeding upon such other Party’s written request therefore, unless the Bankrupt Party elects to continue to perform all of its obligations under this Agreement, or (ii) if not delivered under clause (i), following the rejection of this Agreement by the Bankrupt Party upon written request therefore by the other Party; and (b) the Bankrupt Party shall not unreasonably interfere with the other Party’s rights to intellectual property and all embodiments of intellectual property, and shall assist and not unreasonably interfere with the other Party in obtaining intellectual property and all embodiments of intellectual property from another entity. The “embodiments” of intellectual property include all tangible, intangible, electronic or other embodiments of rights and licenses hereunder, including all compounds and products embodying intellectual property, Product, filings with Regulatory Authorities and related rights and Licensed Know-How in the case that Lilly is the Bankrupt Party and Licensee Know-How in the case Licensee is the Bankrupt Party.
ARTICLE 14
DISPUTE RESOLUTION
14.1 Disputes. The Parties recognize that, from time to time, disputes, controversies or claim may arise which stem from or are related to a Party’s respective rights or obligations under this Agreement or a Party’s actual or alleged breach of this Agreement (a “Dispute”). It is the desire of the Parties to establish procedures to facilitate the resolution of Disputes arising under this Agreement in an expedient manner by mutual cooperation and without resort to litigation. To accomplish this objective, the Parties agree to follow the procedures set forth in this Article 14 if and when a Dispute arises under this Agreement. If the Parties are unable to resolve any Dispute within 30 days after such Dispute is submitted to it, either Party may, by written notice to the other Party, have such dispute referred to Designated Officers of each Party for attempted resolution. If the Designated Officers cannot reach resolution of the Dispute within 30 days after such referral, the Dispute shall be referred to the Parties’ designated executive officers or their delegates for attempted resolution. In the event the designated executive officers or their delegates are not able to resolve such Dispute within such 30-day period after receipt of written notice, and a Party wishes to pursue the matter, then each Party may assert any remedy available at law or equity to enforce its rights under this Agreement.
48
14.2 Choice of Law; Jurisdiction. This Agreement shall be governed by and construed in accordance with the laws of the State of Delaware and the patent laws of the United States without reference to any rules of conflict of laws. Each of the Parties hereby submits to the jurisdiction of the United States Federal District Court for Delaware in any proceeding arising out of or relating to this Agreement, agrees not to commence any suit, action or proceeding relating thereto except in such court, and waives, to the fullest extent permitted by law, the right to move to dismiss or transfer any action brought in such court on the basis of any objection to personal jurisdiction, venue or inconvenient jurisdiction. Each Party further agrees that service or any process, summons, notice or document by U.S. registered mail to such Party’s notice address provided for in this Agreement shall be effective service of process for any action, suit or proceeding in Delaware with respect to any matters to which it has submitted to jurisdiction in this Section 14.2. Notwithstanding the foregoing, nothing contained in this Agreement will deny any Party the right to seek injunctive relief or other equitable relief from a court of competent jurisdiction applying the laws of the court in the context of a bona fide emergency or prospective irreparable harm, and such an action may be filed and maintained notwithstanding any other ongoing proceeding. Any rights to trial by jury with respect to any suit, action, proceeding or claim (whether based upon contract, tort or otherwise), directly or indirectly, arising out of or relating to this Agreement hereunder are expressly and irrevocably waived by each of the Parties.
ARTICLE 15
MISCELLANEOUS
15.1 Entire Agreement; Amendment. This Agreement, together with the Schedules and Exhibits hereto, contains the entire understanding of the Parties with respect to the subject matter hereof. Any other express or implied agreements and understandings, negotiations, writings and commitments, either oral or written, in respect to the subject matter hereof are superseded by the terms of this Agreement. The Schedules and Exhibits to this Agreement are incorporated herein by reference and shall be deemed a part of this Agreement. This Agreement may be amended, or any term hereof modified, only by a written instrument duly executed by authorized representatives of each of the Parties.
15.2 Force Majeure. No Party shall be liable for any failure to perform, or be considered in breach of, its obligations under this Agreement (other than obligations to make payments of money) to the extent such performance has been delayed, interfered with or prevented by an event of Force Majeure, and the obligations of such Party under this Agreement (other than obligations to make payments of money) whose performance is affected by Force Majeure shall be suspended during, but not longer than, the continuance of the event of Force Majeure. Any Party that experiences an event of Force Majeure shall provide prompt notice of such event to the other Party, including and an estimate of the likely period of time during which its performance will be affected, and shall use reasonable efforts to remove the condition constituting Force Majeure. In the event of a prolonged condition of Force Majeure that makes it unreasonable to continue to perform other activities then being performed by the Parties and their Affiliates pursuant to this Agreement, the Parties shall consult directly or through the appropriate committees and may appropriately scale back their respective activities in order to avoid waste or inappropriate usage of resources under the circumstances, and neither Party shall be liable for any such reasonable scale back, or be considered in breach of its obligations under this Agreement (other than obligations to make payments of money to the other Party) as a result of such reasonable scale back. Notwithstanding anything to the contrary contained in this Section 15.2 or elsewhere in this Agreement, the Parties acknowledge and agree that a COVID-19 pandemic and business disruptions related thereto (collectively, the “COVID Event”) are currently occurring as of the Effective Date and may worsen, and the Parties further acknowledge and agree that neither the COVID Event, nor any recurrence thereof, shall be considered to be an event of Force Majeure or otherwise excuse any failure or delay in performance by either Party under this Agreement (so long as performance is not thereby made unlawful).
49
15.3 Notices. Any notice required or permitted to be given under this Agreement shall be in writing, shall specifically refer to this Agreement and shall be deemed to have been sufficiently given for all purposes if mailed by first class certified or registered mail, postage prepaid (which notice shall be effective five (5) Business Days after such mailing); express delivery service (which notice shall be effective on the first Business Day after delivery to such service); or personally delivered to the appropriate addresses (which notice shall be effective upon delivery to such addresses) set forth below or to such other addresses or numbers for a Party as such Party may inform the other Party by giving five (5) Business Days’ prior written notice:
If to Lilly: | Eli Lilly and Company | |
Lilly Corporate Center | ||
Indianapolis, Indiana 46285 | ||
Attention: General Counsel | ||
If to Licensee: | Z33 Bio Inc. | |
MWE Corporate Services, LLC, 1007 N. Orange St., 10th Fl., | ||
Wilmington, Delaware 19801 | ||
Attention: General Counsel |
15.4 Assignment. Neither Party may assign or transfer this Agreement or any rights or obligations hereunder without the prior written consent of the other Party, except that a Party may make such an assignment or transfer without the other Party’s written consent (i) to any of its Affiliates (but only for so long as such Person is and remains an Affiliate of such Party, it being agreed that such Party shall cause such assignment to terminate prior to such time, if any, as such Person ceases to be an Affiliate of such Party), and (ii) to any Third Party in connection with (a) the acquisition of such Party by or merger or consolidation of such Party with another entity or (b) a merger, consolidation, sale of stock, sale of all or substantially all of such Party’s assets or other similar transaction in which such Third Party either becomes the owner of all or substantially all of the business and assets of (i) such Party or (ii) that portion of such Party’s business or business unit relating to this Agreement. Any permitted successor or assignee of rights or obligations hereunder shall, in a writing delivered to the other Party, expressly assume the performance of such rights or obligations. Except as set forth in the immediately preceding sentence, in the event of an assignment or transfer as permitted above in this Section 15.4, if this Agreement is assigned or transferred to an Affiliate, the assigning or transferring Party shall remain responsible (jointly and severally) with such Affiliate for the performance of such assigned or transferred obligations. Any assignment or transfer, or attempted assignment or transfer, by either Party in violation of the terms of this Section 15.4 shall be null and void and of no legal effect. This Agreement shall be binding on, and inure to the benefit of, each Party, its successors and permitted assigns.
50
15.5 Offset Rights. Notwithstanding anything to the contrary in this Agreement, neither Party may, at any time or for any reason, offset any payments due to the other Party or its Affiliates under this Agreement.
15.6 Severability. If any one or more of the provisions of this Agreement is held to be invalid or unenforceable by any court of competent jurisdiction from which no appeal can be or is taken, such provision shall be considered severed from this Agreement and shall not serve to invalidate any remaining provisions hereof. The Parties shall make a good-faith effort to replace any invalid or unenforceable provision with a valid and enforceable one such that the objectives contemplated by the Parties when entering this Agreement may be realized.
15.7 Cumulative Remedies. No remedy referred to in this Agreement is intended to be exclusive, but each shall be cumulative and in addition to any other remedy referred to in this Agreement or otherwise available under Applicable Law.
15.8 Ambiguities; No Presumption. Each of the Parties acknowledges and agrees that this Agreement has been diligently reviewed by and negotiated by and between them, that in such negotiations each of them has been represented by competent counsel and that the final agreement contained herein, including the language whereby it has been expressed, represents the joint efforts of the Parties hereto and their counsel. Accordingly, in interpreting this Agreement or any provision hereof, no presumption shall apply against any Party hereto as being responsible for the wording or drafting of this Agreement or any such provision, and ambiguities, if any, in this Agreement shall not be construed against any Party, irrespective of which Party may be deemed to have authored the ambiguous provision.
15.9 Headings. The headings for each Article and Section in this Agreement have been inserted for convenience of reference only and are not intended to limit or expand on the meaning of the language contained in the particular Article or Section.
15.10 Interpretation. Except where the context expressly requires otherwise: (a) the use of any gender herein shall be deemed to encompass references to either or both genders, and the use of the singular shall be deemed to include the plural (and vice versa); (b) the words “include,” “includes” and “including” shall be deemed to be followed by the phrase “without limitation”; (c) the word “will” shall be construed to have the same meaning and effect as the word “shall”; (d) any definition of or reference to any agreement, instrument or other document herein shall be construed as referring to such agreement, instrument or other document as from time to time amended, supplemented or otherwise modified (subject to any restrictions on such amendments, supplements or modifications set forth herein); (e) any reference herein to any person shall be construed to include the person’s successors and assigns; (f) the words “herein,” “hereof” and “hereunder,” and words of similar import, shall be construed to refer to this Agreement in its entirety and not to any particular provision hereof; (g) all references herein to Articles, Sections, Exhibits or Schedules shall be construed to refer to Articles, Sections, Exhibits or Schedules of this Agreement, and references to this Agreement include all Exhibits and Schedules hereto; (h) the word “notice” means notice in writing (whether or not specifically stated) and shall include notices, consents, approvals and other written communications contemplated under this Agreement; (i) provisions that require that a Party, the Parties or any committee hereunder “agree,” “consent” or “approve” or the like shall require that such agreement, consent or approval be specific and in writing, whether by written agreement, letter, email, approved minutes or otherwise (but excluding instant messaging); (j) references to any specific law, rule or regulation, or article, section or other division thereof, shall be deemed to include the then-current amendments thereto or any replacement or successor law, rule or regulation thereof; (k) the term “or” shall be interpreted in the inclusive sense commonly associated with the term “and/or”; and (l) the term “to the extent” shall be interpreted to mean the extent or degree to which a subject or thing extends, and shall not simply be construed to mean the word “if.”
51
15.11 No Waiver. Any delay in enforcing a Party’s rights under this Agreement or, subject to Section 12.2.1, any waiver as to a particular default or other matter shall not constitute a waiver of such Party’s rights to the future enforcement of its rights under this Agreement, except with respect to an express written and signed waiver relating to a particular matter for a particular period of time.
15.12 No Third-Party Beneficiaries. No person or entity other than Licensee, Lilly and their respective Affiliates, successors and permitted assignees hereunder, shall be deemed an intended beneficiary hereunder or have any right to enforce any obligation of this Agreement.
15.13 Independent Contractors. It is expressly agreed that Licensee and Lilly shall be independent contractors and that the relationship between Licensee and Lilly shall not constitute a partnership, joint venture or agency. Neither Licensee nor Lilly shall have the authority to make any statements, representations or commitments of any kind, or to take any action, which shall be binding on the other Party, without the prior written consent of such other Party.
15.14 Counterparts; Facsimile Signatures. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. This Agreement may be executed by delivery of electronically scanned copies of original signatures delivered by facsimile or electronic mail, and such signatures shall be deemed to bind each Party as if they were original signatures.
[No Further Text on This Page]
52
IN WITNESS WHEREOF, the Parties have executed this Agreement by their duly authorized representatives as of the date first written above.
Z33 Bio Inc. | Eli Lilly and Company | |||
By: | /s/ Oliver Levy | By: | /s/ Kenneth L. Custer | |
Printed: | Oliver Levy | Printed: | Kenneth L. Custer | |
Title: | President | Title: | Sr. VP of Business Development |
[Signature page to the License, Development and Commercialization Agreement]
Schedule A
COMPOUNDS
[***]
Schedule A - 1
Schedule B
Licensed Patents
[***]
Schedule B - 1
Schedule C
Technical Information, Materials, Processes and Regulatory Filings
[***]
Schedule C - 1
Schedule D
Lilly Animal Care and Use Requirements
[***]
Schedule D - 1
Schedule E
Initial Development Plan
[***]
Schedule E - 1
Exhibit 10.27
December 8, 2022
Zura Bio Limited (“Zura”)
3rd Floor, 1 Ashley Road,
Altrincham, Cheshire,
WA14 2DT, United Kingdom
Re: Additional Agreements relating to Series Seed Preferred Stock Investment Agreement
Gentlemen:
Reference is made to (a) that certain Series Seed Preferred Stock Investment Agreement dated as of the date hereof (the “Agreement”), by and among Zura, Z33 Bio Inc., a Delaware corporation (the “Company”), and STONE PEACH PROPERTIES LLC, (company number 170448260) with a principal address at 1295 E Rock Springs Rd, Unit 308, Atlanta, GA, 30306, USA (“Founder Entity”), and (b) to the extent executed at any point in the future, that certain letter agreement regarding Additional Agreements relating to Series Seed Preferred Stock Investment Agreement (the “Lilly Letter Agreement”) by and between the Company and Eli Lilly and Company (“Lilly”). Capitalized terms used and not otherwise defined herein have the meanings assigned to them in the Agreement.
In consideration of the mutual promises contained in this letter agreement (this “Letter Agreement”), to induce the parties to enter into the Agreement and consummate the transactions contemplated thereby and for other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the parties hereto acknowledge and agree as follows:
1. | Zura Call Right. |
a. | During the period commencing on the date hereof and ending on the two year anniversary of the date hereof (the “Call Exercise Period”), Zura shall have the right, but not the obligation, to purchase up to fifty percent (50%) of the Founder Entity’s shares of Series Seed Preferred Stock held as of the date hereof (or Common Stock if so converted) (collectively, the “Callable Shares”) from the Founder Entity (the “Call Right”) for a per Callable Share purchase price equal to $2.448869 (subject to appropriate adjustment in the event of any stock dividend, stock split, combination or other similar recapitalization with respect to the Common Stock or the Series Seed Preferred Stock) (the “Call Purchase Price”). |
b. | A Call Right shall be exercised by written notice to Founder Entity during the Call Exercise Period, which exercise shall be irrevocable. Such notice shall set forth: (A) the number of Callable Shares subject to the Call Right (the “Call Shares”) and Zura’s calculation of the aggregate Call Purchase Price for such Call Shares, and (B) a time and place of closing (subject to applicable federal and state regulatory approvals), which closing shall be at least twenty (20) days after the date of such exercise notice. For the avoidance of doubt, Zura may elect to exercise its Call Right any number of times until Zura has purchased fifty percent (50%) of the shares of Series Seed Preferred Stock held by the Founder Entity as of the date hereof (or Common Stock if so converted). At such closing, the Founder Entity shall deliver the certificates evidencing all of the Call Shares, to the extent the Call Shares have been certificated, to be purchased by Zura and/or its designee(s), accompanied by stock powers duly endorsed in blank or duly executed instruments of transfer, and any other documents that are necessary to transfer to Zura title to the Call Shares to be transferred, free and clear of all pledges, security interests, liens, charges, encumbrances, equities, claims and options of whatever nature other than those imposed under this Agreement, and concurrently with such delivery, Zura shall deliver to the Founder Entity, the full amount of the Call Purchase Price for such Call Shares by certified or bank cashier’s check or wire transfer. Zura and the Founder Entity hereby agree that the terms and conditions of any sale pursuant to this Letter Agreement will be memorialized in, and governed by, a written purchase and sale agreement with customary terms and provisions for such a transaction and the parties further covenant and agree to enter into such an agreement as a condition precedent to any sale or other transfer pursuant to this this Letter Agreement, and Zura shall be entitled to receive customary representations and warranties from the Founder Entity regarding good title, absence of liens and encumbrances in connection with any Call Shares purchased from the Founder Entity in accordance with this Letter Agreement. In addition, the sale and transfer of the Call Shares under this Letter Agreement, shall close and be deemed effective only upon receipt of the applicable federal and state regulatory approvals. By way of example only, if Zura exercises its Call Right for the full fifty percent (50%) of the Founder Entity’s shares of Series Seed Preferred Stock, which would be a Call Right to purchase 2,450,111 shares of Series Seed Preferred Stock from the Founder Entity, the aggregate Call Purchase Price for such shares would be $6,000,000 (2,450,111 x $2.448869). |
c. | During the Call Exercise Period, the Founder Entity shall not assign, sell, offer to sell, pledge, mortgage, hypothecate, encumber, dispose of or engage in any other like transfer or encumbrance of any potentially Callable Shares (or any interest therein) to any Person, other than to Zura or in connection with a Sale Event (as defined in the Agreement). |
d. | In the event that, as of the date of an exercise of a Call Right by Zura, shares of capital stock of Zura are listed on a national securities exchange, the Nasdaq National Market or another nationally recognized trading system (such listed shares, “Zura Shares”), Zura may elect to issue to the Founder Entity Zura Shares in lieu of cash; provided, that, the value of a Zura Share for such purposes shall be an amount equal to the product of (i) 90% and (ii) the Fair Market Value per Zura Share. For purposes hereof, “Fair Market Value” shall be deemed to be the average of the reported closing sale prices per Zura Share over a twenty (20) day trading period ending the trading day immediately preceding such date of an exercise of a Call Right by Zura (or such shorter trading period in the event that the exercise date is less than twenty (20) trading days after the date Zura consummates an initial public offering of its capital stock). |
e. | In the event that, as of the date of an exercise of a Call Right by Zura, shares of capital stock of Zura are not listed on a national securities exchange, the Nasdaq National Market or another nationally recognized trading system (such listed shares, “Zura Unlisted Shares”), Zura may elect to issue to the Founder Entity Zura Unlisted Shares in lieu of cash; provided, that, the value of a Zura Unlisted Share for such purposes shall be as the Parties may reasonably agree in good faith negotiations based upon the then current valuation of Zura. |
2. | Founder Entity Put Right. |
a. | During the period commencing on the first anniversary of the date hereof and ending on the two year anniversary of the date hereof (the “Put Exercise Period”), the Founder Entity shall have the right, but not the obligation, to sell up to fifty percent (50%) of the Founder Entity’s shares of Series Seed Preferred Stock held as of the date hereof (or Common Stock if so converted) (collectively, the “Putable Shares”) to Zura (the “Put Right”) for a per Putable Share purchase price equal to $2.040724 (subject to appropriate adjustment in the event of any stock dividend, stock split, combination or other similar recapitalization with respect to the Common Stock or the Series Seed Preferred Stock) (the “Put Purchase Price”). |
2
b. | A Put Right shall be exercised by written notice to Zura (the “Put Right Notice”) given during the Put Exercise Period, which exercise shall be irrevocable. Such Put Right Notice shall set forth: (A) the number of Putable Shares subject to the Put Right (the “Put Shares”) and the Founder Entity’s calculation of the aggregate Put Purchase Price for such Put Shares, and (B) a time and place of closing (subject to applicable federal and state regulatory approvals), which closing shall be at least twenty (20) days after the date of such exercise notice. For the avoidance of doubt, the Founder Entity may elect to exercise its Put Right any number of times until Zura has purchased fifty percent (50%) of the shares of Series Seed Preferred Stock held by the Founder’s Entity as of the date hereof (or Common Stock if so converted). |
c. | In the event that the Lilly Letter Agreement has been executed and is in effect, promptly after receipt of the Put Right Notice, Zura shall provide a copy of the Put Right Notice to Lilly, and Lilly shall have the right, but not the obligation, to elect to participate on a pro rata basis (based upon the total number of shares of capital stock of the Company held by Lilly and the Founder Entity) in the Put Right described in the Put Right Notice by providing written notice to Zura within ten (10) days after receipt of the Put Right Notice from Zura, which exercise by Lilly shall be irrevocable. In the event that Lilly elects to participate in the Put Right, the number of Put Shares with respect to the Founder Entity shall be reduced to the extent necessary to allow Lilly to participate in the Put Right, but the Founder Entity’s Put Shares shall not be reduced below the Founder Entity’s pro rata portion (based upon the total number of shares of capital stock of the Company held by Lilly and the Founder Entity) of the Put Shares set forth in the Put Right Notice. |
d. | At such closing, the Founder Entity shall deliver the certificates evidencing all of the Put Shares (subject to reduction pursuant to clause (c) above), to the extent the Put Shares have been certificated, to be purchased by Zura and/or its designee(s), accompanied by stock powers duly endorsed in blank or duly executed instruments of transfer, and any other documents that are necessary to transfer to Zura title to the Put Shares to be transferred, free and clear of all pledges, security interests, liens, charges, encumbrances, equities, claims and options of whatever nature other than those imposed under this Agreement, and concurrently with such delivery, Zura shall deliver to the Founder Entity, the full amount of the Put Purchase Price for such Put Shares (subject to reduction pursuant to clause (c) above) by certified or bank cashier’s check or wire transfer. Zura and the Founder Entity hereby agree that the terms and conditions of any sale pursuant to this Letter Agreement will be memorialized in, and governed by, a written purchase and sale agreement with customary terms and provisions for such a transaction and the parties further covenant and agree to enter into such an agreement as a condition precedent to any sale or other transfer pursuant to this this Letter Agreement, and Zura shall be entitled to receive customary representations and warranties from the Founder Entity regarding good title, absence of liens and encumbrances in connection with any Put Shares purchased from the Founder Entity in accordance with this Letter Agreement. In addition, the sale and transfer of the Put Shares under this Letter Agreement, shall close and be deemed effective only upon receipt of the applicable federal and state regulatory approvals. By way of example only, if the Founder Entity exercises its Put Right regarding the full fifty percent (50%) of the Founder Entity’s shares of Series Seed Preferred Stock (and Lilly does not exercise its right to participate in the Put Right), which would be a Put Right to sell 2,450,111 shares of Series Seed Preferred Stock to Zura, the aggregate Put Purchase Price for such shares would be $5,000,000 (2,450,111 x $2.040724). |
3
e. | During the Put Exercise Period, the Founder Entity shall not, with respect to any potentially Putable Shares, (a) exercise its Conversion Rights (as defined in the Restated Certificate (as defined in the Agreement)) or (b) vote in favor of, or encourage any other shareholder of the Company to vote in favor of, the conversion of Preferred Stock of the Company into Common Stock of the Company pursuant to Section 3.10 of Part B of Article V of the Restated Certificate or otherwise. |
3. | Notwithstanding the foregoing, upon a Sale Event, the terms and provisions set forth in this Letter Agreement shall automatically terminate upon the closing of such transaction. |
4. | Any term of this Letter Agreement may be amended, terminated or waived only with the written consent of Zura and the Founder Entity. |
5. | This Letter Agreement is governed by the laws of the state of Delaware, regardless of the laws that might otherwise govern under applicable principles of choice of law. |
6. | This Letter Agreement may be executed in two or more counterparts, each of which will be deemed an original, but all of which together will constitute one and the same instrument. Counterparts may be delivered via facsimile, electronic mail (including pdf or any electronic signature complying with the U.S. federal ESIGN Act of 2000, Uniform Electronic Transactions Act or other applicable law) or other transmission method and any counterpart so delivered will be deemed to have been duly and validly delivered and be valid and effective for all purposes. |
7. | Each party (a) hereby irrevocably and unconditionally submits to the personal jurisdiction of the federal or state courts located in Delaware for the purpose of any suit, action, or other proceeding arising out of or based upon this Letter Agreement; (b) will not commence any suit, action or other proceeding arising out of or based upon this Letter Agreement except in the federal or state courts located in Delaware; and (c) hereby waives, and will not assert, by way of motion, as a defense, or otherwise, in any such suit, action or proceeding, any claim that it is not subject to the personal jurisdiction of the federal or state courts located in Delaware, that its property is exempt or immune from attachment or execution, that the suit, action or proceeding is brought in an inconvenient forum, that the venue of the suit, action or proceeding is improper or that this Agreement, or the subject matter hereof and thereof may not be enforced in or by the federal or state courts located in Delaware. |
EACH PARTY HEREBY WAIVES ITS RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF THIS LETTER AGREEMENT, THE OTHER TRANSACTION DOCUMENTS, THE SECURITIES OR THE SUBJECT MATTER HEREOF OR THEREOF. THE SCOPE OF THIS WAIVER IS INTENDED TO BE ALL-ENCOMPASSING OF ANY AND ALL DISPUTES THAT MAY BE FILED IN ANY COURT AND THAT RELATE TO THE SUBJECT MATTER OF THIS TRANSACTION, INCLUDING, WITHOUT LIMITATION, CONTRACT CLAIMS, TORT CLAIMS (INCLUDING NEGLIGENCE), BREACH OF DUTY CLAIMS, AND ALL OTHER COMMON LAW AND STATUTORY CLAIMS. THIS SECTION HAS BEEN FULLY DISCUSSED BY EACH OF THE PARTIES HERETO AND THESE PROVISIONS WILL NOT BE SUBJECT TO ANY EXCEPTIONS. EACH PARTY HERETO HEREBY FURTHER WARRANTS AND REPRESENTS THAT SUCH PARTY HAS REVIEWED THIS WAIVER WITH ITS LEGAL COUNSEL, AND THAT SUCH PARTY KNOWINGLY AND VOLUNTARILY WAIVES ITS JURY TRIAL RIGHTS FOLLOWING CONSULTATION WITH LEGAL COUNSEL.
[Signature page follows.]
4
Very truly yours, | ||
STONE PEACH PROPERTIES LLC | ||
By: | /s/ Baljit Lehal | |
Name: Baljit Lehal | ||
Title: Authorized Signatory |
[Signature Page to Letter Agreement]
Agreed to and accepted by: | ||
Zura bio limited | ||
By: | /s/ Oliver Levy | |
Name: Oliver Levy | ||
Title: Director |
[Signature Page to Letter Agreement]
Exhibit 23.1
CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
We consent to the use in this Registration Statement on Amendment No. 4 to Form S-4 of Jatt Acquisition Corp of our report dated June 14, 2022, relating to the financial statements of Zura Bio Limited, as of and for the period ended March 31, 2022, appearing in the Prospectus, which is part of this Registration Statement.
We also consent to the reference to our firm under the heading “Experts” in such Prospectus.
/s/ WithumSmith+Brown, PC | |
East Brunswick, New Jersey | |
January 9, 2023 |
Exhibit 23.2
Independent Registered Public Accounting Firm’s Consent
We consent to the inclusion in this Registration Statement of JATT Acquisition Corp. on Amendment No. 4 to Form S-4 of our report dated April 11, 2022, which includes an explanatory paragraph as to the company’s ability to continue as a going concern, with respect to our audit of the financial statements of JATT Acquisition Corp., as of December 31, 2021 and for the period ended March 10, 2021 (inception) through December 31, 2021, which report appears in the Prospectus, which is part of this Registration Statement. We also consent to the reference to our Firm under the heading “Experts” in such Prospectus.
/s/ Marcum llp
Marcum llp
New York, NY
January 9, 2023
Exhibit 23.3
Consent of Vantage Point Advisors, Inc.
We hereby consent to (i) the inclusion of our opinion letter, dated June 14, 2022, to the Board of Directors of JATT Acquisition Corp as an exhibit to the Proxy Statement/Prospectus which forms a part of the Registration Statement on Form S-4 related to the proposed merger with Zura Bio Holdings Ltd and (ii) the references to such opinion therein under the headings “Questions and Answers,” “Risk Factors,” “Background of the Business Combination,” “Engagement of Vantage Point,” and “Opinion of Vantage Point”. Notwithstanding the foregoing, in giving such consent, we do not thereby admit that we are experts with respect to any part of such Registration Statement within the meaning of the term “expert” as used in the Securities Act of 1933, as amended, or the rules and regulations of the Securities and Exchange Commission promulgated thereunder.
Very truly yours,
/s/ Vantage Point Advisors, Inc.
Vantage Point Advisors, Inc.
San Diego, California
January 6, 2023