Full Press Release Details
Certain confidential
information contained in this document, marked by [**], has been omitted because ADC Therapeutics SA (ADCT) has determined that the information
(i) is not material and (ii) is the type that ADCT customarily and actually treats as private or confidential.
by HealthCare Royalty Management, LLC
Certain confidential
information contained in this document, marked by [**], has been omitted because ADC Therapeutics SA (ADCT) has determined that the information
(i) is not material and (ii) is the type that ADCT customarily and actually treats as private or confidential.
| Article 1 DEFINITIONS | 1 | |
| Section 1.1 | Definitions | 1 |
| Section 1.2 | Certain Interpretations | 16 |
| Article 2 PURCHASE, SALE AND ASSIGNMENT OF THE REVENUE INTEREST | 17 | |
| Section 2.1 | Purchase, Sale and Assignment. | 17 |
| Section 2.2 | Purchase Price | 18 |
| Section 2.3 | Prepayment | 19 |
| Section 2.4 | No Assumed Obligations, Etc | 20 |
| Article 3 CLOSING AND PAYMENT OF PURCHASE PRICE | 20 | |
| Section 3.1 | Closing | 20 |
| Section 3.2 | Payment of Purchase Price | 20 |
| Section 3.3 | Bill of Sale | 20 |
| Article 4 REPRESENTATIONS AND WARRANTIES | 20 | |
| Section 4.1 | Seller's Representations and Warranties | 20 |
| Section 4.2 | Buyer's Representations and Warranties | 27 |
| Article 5 COVENANTS | 28 | |
| Section 5.1 | Information Rights | 28 |
| Section 5.2 | Royalty Payments; Revenue Participation and Royalty Payment Details | 29 |
| Section 5.3 | Inspections and Audits of the Seller | 30 |
| Section 5.4 | Intellectual Property Matters | 31 |
| Section 5.5 | In-Licenses | 32 |
| Section 5.6 | Out-Licenses | 33 |
| Section 5.7 | Restricted Indebtedness | 34 |
| Section 5.8 | Use of Proceeds; Diligence | 34 |
| Section 5.9 | Efforts to Consummate Transactions | 34 |
| Section 5.10 | Certain Tax Matters | 35 |
Certain confidential
information contained in this document, marked by [**], has been omitted because ADC Therapeutics SA (ADCT) has determined that the information
(i) is not material and (ii) is the type that ADCT customarily and actually treats as private or confidential.
| Section 5.11 | Further Assurances | 36 |
| Section 5.12 | Signing Deliveries | 36 |
| Article 6 INDEMNIFICATION | 37 | |
| Section 6.1 | General Indemnity | 37 |
| Section 6.2 | Claims Procedures | 37 |
| Section 6.3 | Limitations on Liability; Time for Claims | 38 |
| Section 6.4 | Tax Treatment of Indemnification Payments | 39 |
| Section 6.5 | Exclusive Remedy | 39 |
| Article 7 CONFIDENTIALITY | 40 | |
| Section 7.1 | Confidentiality | 40 |
| Section 7.2 | Authorized Disclosure | 40 |
| Article 8 TERMINATION | 42 | |
| Section 8.1 | Mutual Termination | 42 |
| Section 8.2 | Automatic Termination | 42 |
| Section 8.3 | Survival | 42 |
| Article 9 MISCELLANEOUS | 42 | |
| Section 9.1 | Headings | 42 |
| Section 9.2 | Notices | 42 |
| Section 9.3 | Expenses | 43 |
| Section 9.4 | Assignment | 44 |
| Section 9.5 | Amendment and Waiver | 44 |
| Section 9.6 | Entire Agreement | 44 |
| Section 9.7 | No Third Party Beneficiaries | 45 |
| Section 9.8 | Governing Law | 45 |
| Section 9.9 | Jurisdiction; Venue | 45 |
| Section 9.10 | Severability | 46 |
| Section 9.11 | Specific Performance | 46 |
| Section 9.12 | Counterparts | 46 |
| Section 9.13 | Relationship of the Parties | 46 |
| Section 9.14 | Subordination Agreement | 46 |
Certain confidential
information contained in this document, marked by [**], has been omitted because ADC Therapeutics SA (ADCT) has determined that the information
(i) is not material and (ii) is the type that ADCT customarily and actually treats as private or confidential.
Index of Exhibits and Schedules
| Exhibit A: | Form of Subordination Agreement |
| Exhibit B: | Bill of Sale |
| Exhibit C: | Form of Seller Opinion |
| Exhibit D: | Product Plan |
| Exhibit E: | Form of Press Release |
| Exhibit F: | Buyer Entities |
Certain confidential
information contained in this document, marked by [**], has been omitted because ADC Therapeutics SA (ADCT) has determined that the information
(i) is not material and (ii) is the type that ADCT customarily and actually treats as private or confidential.
AND SALE AGREEMENT, dated as of August 25, 2021 (this "Agreement"), is made and entered into by and between
the entities managed by Healthcare Royalty Management, LLC, a Delaware limited liability company, identified on the signature pages of
this Agreement and listed on Exhibit F (individually and collectively, the "Buyer"), and ADC Therapeutics SA,
a Swiss soci t anonyme (the "Seller").
is in the business of, among other things, developing and commercializing the Products; and
desires to purchase the Revenue Participation Right from the Seller in exchange for payment of the Purchase Price, and the Seller desires
to sell the Revenue Participation Right to the Buyer in exchange for the Buyer's payment of the Purchase Price, in each case on
the terms and conditions set forth in this Agreement.
consideration of the representations, warranties, covenants and agreements set forth herein and for good and valuable consideration, the
receipt and adequacy of which are hereby acknowledged, the Seller and the Buyer hereby agree as follows:
Section 1.1 Definitions.
The following terms, as used herein, shall have the following meanings:
means, with respect to any particular Person, any other Person directly or indirectly controlling, controlled by or under common control
with such particular Person. For purposes of the foregoing sentence, the term "control" means direct or indirect ownership
of: (a) fifty percent (50%) or more, including ownership by trusts with substantially the same beneficial interests, of the voting and
equity rights of such Person, firm, trust, corporation, partnership or other entity or combination thereof, or (b) the power to direct
the management of such person, firm, trust, corporation, partnership or other entity or combination thereof, by contract or otherwise.
Notwithstanding the foregoing, Overland ADCT BioPharma shall not be deemed an "Affiliate" for any purpose hereunder.
is defined in the preamble.
means, individually and collectively, mainland China, the Hong Kong Special Administrative Region, the Macau Special Administrative Region,
Taiwan, Singapore and South Korea.
Security Interest" is defined in Section 2.1(b).
Certain confidential
information contained in this document, marked by [**], has been omitted because ADC Therapeutics SA (ADCT) has determined that the information
(i) is not material and (ii) is the type that ADCT customarily and actually treats as private or confidential.
Laws" means, collectively, bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance, fraudulent transfer or
other similar laws affecting the enforcement of creditors' rights generally.
means a Biologics License Application, as defined in the United States Public Health Service Act (42 U.S.C. 262), and applicable
regulations promulgated thereunder by the FDA, or any equivalent application that replaces such application and is the relevant equivalent
to the foregoing, or any analogous application or submission with any Regulatory Authority outside of the United States.
Day" means any day other than (a) a Saturday or Sunday or (b) a day on which banking institutions located in New York,
New York or Geneva, Switzerland are permitted or required by applicable law or regulation to remain closed.
is defined in the preamble.
Connection Tax" means any Tax to the extent that it would not be imposed but for (a) any connection of Buyer with the jurisdiction
of the applicable taxing authority (other than a connection arising solely from this Agreement or any transaction contemplated thereby,
but including a connection arising due to any change in domicile of Buyer or due to the domicile or change in domicile of an assignee
of Buyer) or (b) any failure of Buyer to provide any applicable documentation that is reasonably requested by the applicable withholding
agent and that Buyer is legally eligible to provide.
Indemnified Parties" is defined in Section 6.1(a).
Rate" is defined in Section 2.3(b).
is defined in the definition of "Products".
Running Royalties" means running royalties actually received by Seller or its Affiliates pursuant to an Out-License in any country
in the Cami Territory (other than the United States and Europe, including the Major Markets) on Net Sales of Cami invoiced, billed or
otherwise recorded by or on behalf of a Licensee or its Affiliates (after deducting amounts payable by Seller or its Affiliates to a counterparty
under an Existing In-License or In-License in any given period). For the avoidance of doubt, running royalties on Net Sales of Cami shall
not include any other amounts payable, such as milestones or upfront fees and shall not be duplicative of any other payments due hereunder.
means, solely with respect to Cami, the entire world.
of Control" means (a) a merger, consolidation, recapitalization, or reorganization of the Seller with a Third Party that results
in the voting securities of the Seller outstanding immediately prior thereto, or any securities into which such voting securities have
been converted or exchanged, ceasing to represent at least fifty percent (50%) of the outstanding voting securities of the surviving entity
or the parent of the surviving entity immediately after such merger, consolidation, recapitalization, reorganization, (b) a transaction
or series of related transactions in which a Third Party, together with its Affiliates, becomes the direct or indirect
Certain confidential
information contained in this document, marked by [**], has been omitted because ADC Therapeutics SA (ADCT) has determined that the information
(i) is not material and (ii) is the type that ADCT customarily and actually treats as private or confidential.
owner of fifty percent (50%) or more of the combined voting power of the outstanding securities of the Seller, (c) the sale or other
transfer to a Third Party of all or substantially all of the Seller's and its controlled Affiliates' assets or (d) consummation
of such other arrangement or agreement whereby the shareholders of the Seller with the actual power to appoint a majority of the board
of directors (if any) no longer have the actual power, either directly or indirectly, to appoint a majority of the board of directors.
means the closing of the sale, transfer, assignment and conveyance of the Revenue Participation Right hereunder.
Date" has the meaning set forth in Section 3.1.
Price" is defined in Section 2.2(a).
single pharmaceutical formulation (whether co-formulated or administered together via the same administration route) containing as its
active ingredients both the Products and one or more other therapeutically or prophylactically active pharmaceutical or biologic ingredients
(each an "Other Component"), or
combination therapy comprised of the Products and one or more Other Component(s), whether priced and sold in a single package containing
such multiple Products, packaged separately but sold together for a single price, or sold under separate price points but labeled for
in each case, including
all dosage forms, formulations, presentations, and package configurations. Drug delivery vehicles, adjuvants and excipients will not be
deemed to be "active ingredients", except in the case where such delivery vehicle, adjuvant or excipient is recognized by
the FDA as an active ingredient in accordance with 21 C.F.R. 210.3(b)(7).
means any and all activities directed to the distribution, marketing, detailing, promotion, selling and securing of reimbursement of the
Products in the Cami Territory or the ZYNLONTA Territory, as applicable (including the using, importing, selling and offering for sale
of the Products), and shall include post-Marketing Approval studies to the extent required by a Regulatory Authority, post-launch marketing,
promoting, detailing, distributing, selling the Products, importing, exporting or transporting the Products for sale, and regulatory compliance
with respect to the foregoing. When used as a verb, "Commercialize" means to engage in Commercialization. Except with respect
to post-Marketing Approval studies required by a Regulatory Authority, Commercialization shall not include any activities directed to
the research or development (including pre-clinical and clinical development) or manufacture of the Products.
Reasonable Efforts" means the level of efforts and resources that are commonly used by a commercial-stage public biotechnology
company of similar size, resources and product portfolio comparable to Seller to develop, manufacture or Commercialize, as the case may