Exhibit 10.3
AMENDMENT NO. 2 TO ASSET PURCHASE AGREEMENT
This Amendment No. 2 (this
“Amendment No. 2”) to the Purchase Agreement (as defined below) is made and entered into as of December
5, 2019, by and between Spherix Incorporated, a Delaware corporation (“Buyer”), and CBM BioPharma, Inc.,
a Delaware corporation (“Seller”). Capitalized terms used but not defined herein shall have the meanings
ascribed to them in the Purchase Agreement.
WHEREAS, Buyer and
Seller (collectively, the “Parties”) have entered into that certain Asset Purchase Agreement, dated as
of May 15, 2019, as amended by that certain Amendment No. 1 to Asset Purchase Agreement, dated as of May 30, 2019 (collectively,
the “Purchase Agreement”), in the form attached hereto as Exhibit A;
WHEREAS, Section
2.1(b) of the Purchase Agreement provides that Buyer shall issue shares of Buyer Preferred Stock to Seller to the extent that
the issuance of Buyer Common Stock pursuant to the Purchase Agreement would cause Seller’s beneficial ownership of Buyer
Common Stock immediately following the issuance of such Buyer Common Stock to exceed 9.99% (such beneficial ownership limitation,
the “Limitation”);
WHEREAS, the mutual
intent of the Parties was for the asset sale contemplated by the Purchase Agreement to qualify as a tax-free reorganization within
the meaning of Section 368 of the Internal Revenue Code and the Purchase Agreement to constitute a plan of reorganization; and
WHEREAS, Seller
and Buyer, to effect the mutual intent of the Parties, wish to amend the Purchase Agreement to provide that, in lieu of Buyer Preferred
Stock, the Parties take certain actions in connection therewith.
NOW, THEREFORE,
in consideration of the foregoing and for other good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, and in accordance with the terms of the Purchase Agreement, the Parties hereto, intending to be legally bound, do
hereby acknowledge and agree as follows:
1.
Amendments to Purchase Agreement. The Parties hereby agree that the Purchase Agreement is hereby amended as follows:
Section 2.1(b)
of the Purchase Agreement is hereby amended and restated in its entirety as follows:
(b) pay
to Seller an amount equal to Eight Million U.S. Dollars ($8,000,000) (the “Purchase Price”) consisting
of (i) an aggregate number of shares of common stock, par value $0.0001 per share, of Buyer (the “Buyer Common Stock”)
as shall be equal to Seven Million U.S. Dollars ($7,000,000) (the “Stock Consideration”) consisting of
an aggregate number of shares of Buyer Common Stock equal to the Stock Consideration divided by Buyer Common Stock Price, and (ii)
cash consideration in the amount of One Million U.S. Dollars ($1,000,000) (the “Cash Consideration Amount”,
and together with the Stock Consideration, the “Purchase Consideration”);
Section 2.1(d)
of the Purchase Agreement is hereby amended and restated in its entirety as follows:
(d) deposit
with the Escrow Agent such number of shares of Buyer Common Stock as shall equal seven percent (7%) of the Stock Consideration
deliverable to Seller (including any equity securities paid as dividends or distributions with respect to such shares of Buyer
Common Stock, the “Escrow Shares”) to hold in escrow in a segregated escrow account (the “Escrow
Account”) in accordance with the terms of the Escrow Agreement and this Agreement.
Section 3.3(a)
of the Purchase Agreement is hereby amended to delete the reference to “Preferred Stock Consideration” thereunder.
Section 3.3(c)
of the Purchase Agreement is hereby deleted and replaced with “Intentionally Deleted”.
Sections 5.4,
5.5 and 6.12 of the Purchase Agreement are hereby amended to remove all references to and provisions relating to
“Underlying Shares”.
Section 6.6
of the Purchase Agreement is hereby deleted and replaced with “Intentionally Deleted”.
Annex I to
the Purchase Agreement is hereby amended to remove the definitions of and all other references to “Buyer Preferred Stock”,
“Certificate of Designation” and “Underlying Shares”, and to delete the reference to “Series L convertible
preferred stock” from the “Qualified Financing” definition.
2.
Miscellaneous.
a)
Except as modified by this Amendment No. 2, all terms and conditions of the Purchase Agreement shall remain in full force
and effect and are hereby in all respects ratified and affirmed. All references in the Purchase Agreement to the “Agreement”
shall be deemed to refer to the Purchase Agreement, as amended by this Amendment No. 2.
b)
This Amendment No. 2 may be executed in any number of counterparts, each of which shall be deemed an original, but all of
which shall constitute one and the same instrument. An executed facsimile or electronic .pdf counterpart of this Amendment No.
2 shall be deemed to be an original for all purposes.
c)
This Amendment No. 2 shall be governed by and interpreted in accordance with the laws of the State of Delaware (without
giving effect to its choice of law principles). For purposes of any Action arising out of or in connection with this Amendment
No. 2 or any transaction contemplated hereby, each of the Parties (a) irrevocably submits to the exclusive jurisdiction and venue
of any state or federal court located within New York County in the State of New York (or in any appellate courts thereof), (b)
agrees that service of any process, summons, notice or document by U.S. registered mail to such party’s respective address
shall be effective service of process for any Action with respect to any matters to which it has submitted to jurisdiction in this
Section 2(c), and (c) waives and covenants not to assert or plead, by way of motion, as a defense or otherwise, in any such Action,
any claim that it is not subject personally to the jurisdiction of such court, that the Action is brought in an inconvenient forum,
that the venue of the Action is improper or that this Amendment No. 2 or the subject matter hereof may not be enforced in or by
such court, and hereby agrees not to challenge such jurisdiction or venue by reason of any offsets or counterclaims in any such
Action.
d)
Each provision of this Amendment No. 2 shall be considered severable and if for any reason any provision or provisions herein
are determined to be invalid, unenforceable or illegal under any existing or future law, such invalidity, unenforceability or illegality
shall not impair the operation of or affect those portions of this Amendment No. 2 which are valid, enforceable and legal.
[SIGNATURE PAGES FOLLOW]
IN WITNESS WHEREOF, the Parties
have executed this Amendment No. 2 as of the day and year first written above.
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Buyer:
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SPHERIX INCORPORATED, a Delaware
corporation
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By:
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/s/
Anthony Hayes
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Name: Anthony Hayes
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Title: Chief Executive Officer
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Seller:
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CBM BIOPHARMA, INC., a Delaware
corporation
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By:
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/s/
Scott Wilfong
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Name: Scott Wilfong
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Title: Chief Executive Officer
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EXHIBIT A
Purchase Agreement
Exhibit 99.1
Spherix Announces the Closing of CBM
BioPharma Transaction
Significantly bolsters growing portfolio
of small-molecule anti-cancer therapies, addressing large but underserved markets
New York, NY, December 10, 2019 /PRNewswire/ Spherix Incorporated
(Nasdaq: SPEX) today announced that it has closed the CBM BioPharma, Inc. transaction and is working to develop these cancer drugs.
Building on its successful investment in Hoth Therapeutics,
Inc., Spherix now owns a diverse portfolio of early stage small-molecule anti-cancer therapeutics.
The Spherix platform contains patented technology from leading universities and researchers and we seek to develop our innovative
drugs through strong partnership with world renowned institutions, such as The University of Texas at Austin and Wake Forest University.
The Company’s diverse pipeline of therapeutics includes therapies for pancreatic cancer, acute myeloid leukemia (AML) and
acute lymphoblastic leukemia (ALL). Its pancreatic treatment has shown positive preclinical results for inhibiting pancreatic tumor
growth in clinically relevant transgenic mouse models. The drug has also demonstrated the potential to overcome tumor cell resistance
to current chemotherapeutic drugs. The Company’s AML drug is a next generation targeted therapeutic designed to overcome
multiple resistance mechanisms observed with the current standard of care. In addition, Spherix is continually seeking to grow its
pipeline to treat unmet medical needs in oncology.
Anthony Hayes, CEO of
Spherix, stated, “The acquisition of these assets is yet another step in the transformation of Spherix into a diversified
biotechnology company. These are exciting drugs and we intend to provide additional information about these drugs and the development
plan moving forward. As the deal has evolved, we have successfully improved the terms for Spherix shareholders, we thank our shareholders
for their support during this process.”
About Spherix
Spherix Incorporated is a technology development company committed
to the fostering of innovative ideas. Spherix Incorporated was formed in 1967 as a scientific research company.
Our activities generally include the acquisition and development
of technology through internal or external research and development. In addition, we seek to acquire existing rights to intellectual
property through the acquisition of already issued patents and pending patent applications, both in the United States and abroad.
We may alone, or in conjunction with others, develop products and processes associated with technology development. Recently, the
Company has invested in and helped develop technology with Hoth Therapeutics, Inc., DatChat, Inc. and with its recent asset acquisition
with CBM BioPharma, Inc. in December 2019.
Forward-Looking Statements
Certain statements made herein are not
historical facts but are forward-looking statements for purposes of the safe harbor provisions under The Private Securities Litigation
Reform Act of 1995. Forward-looking statements generally are accompanied by words such as "may", "should", "would", "plan", "intend",
"anticipate", "believe", "estimate", "predict", "potential", "seem", "seek", "continue", "future", "will", "expect", "outlook"
or other similar words, phrases or expressions. These forward-looking statements include statements regarding Spherix's and CBM's
industry, future events, the estimated or anticipated future results and benefits of Spherix following the CBM acquisition, future
opportunities for Spherix, and other statements that are not historical facts. These statements are based on the current expectations
of Spherix's management and are not predictions of actual performance. These statements are subject to a number of risks and uncertainties
regarding the businesses of Spherix and the transaction, and actual results may differ materially. These risks and uncertainties
include, but are not limited to, changes in the business environment in which Spherix or CBM operates, including inflation and
interest rates, and general financial, economic, regulatory and political conditions affecting the industry in which Spherix or
CBM operates; changes in taxes, governmental laws, and regulations; competitive product and pricing activity; difficulties of
managing growth profitably; the inability of the parties to successfully or timely consummate the proposed transaction, including
the risk that any required regulatory approvals are not obtained, are delayed or are subject to unanticipated conditions that
could adversely affect the combined company or the expected benefits of the transaction; failure to realize the anticipated benefits
of the transaction, including as a result of a delay in consummating the transaction or a delay or difficulty in integrating the
assets of CBM; uncertainty as to the long-term value of Spherix's common stock; those discussed in the Spherix's Annual Reports
on Form 10-K and Quarterly Reports on Form 10-Q and other documents of Spherix on file with the SEC or in the registration statement
that will be filed with the SEC by Spherix. There may be additional risks that Spherix presently does not know or that Spherix
currently believes are immaterial that could also cause actual results to differ from those contained in the forward-looking statements.
In addition, forward-looking statements provide Spherix's expectations, plans or forecasts of future events and views as of the
date of this communication. Spherix anticipates that subsequent events and developments will cause Spherix's assessments to change.
However, while Spherix may elect to update these forward- looking statements at some point in the future, Spherix specifically
disclaims any obligation to do so. These forward-looking statements should not be relied upon as representing Spherix's assessments
as of any date subsequent to the date of this communication.
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Contact:
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Investor Relations:
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Hayden IR
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Brett Maas, Managing Partner
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Phone: (646) 536-7331
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Email: brett@haydenir.com
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www.haydenir.com
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Spherix:
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Phone: 212-745-1373
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Email: investorrelations@spherix.com
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www.spherix.com
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