Exhibit 10.49
AMENDED AND RESTATED SECURITY
AGREEMENT
THIS AMENDED AND RESTATED SECURITY
AGREEMENT (this “ Agreement ”), dated as of
December 15, 2008 (the “ Effective Date ”),
is made by and between CELL THERAPEUTICS, INC., a Washington
corporation (“ CTI ”), and BIOGEN IDEC INC., a
Delaware corporation (“ BIIB ”).
WHEREAS, pursuant to that certain
Asset Purchase Agreement, dated as of August 15, 2007, by and
between CTI and BIIB, as amended by that certain First Amendment to
Asset Purchase Agreement by and between CTI and BIIB dated as of
December 9, 2008 (as amended, the “ Asset Purchase
Agreement ”), CTI has purchased certain assets (the
“ Acquisition ”) from BIIB relating to the
Product (as defined for purposes of the Asset Purchase Agreement)
in exchange for, among other items, certain Milestone Payments (as
defined in the Asset Purchase Agreement) and certain Yearly Royalty
Payments (as defined in the Asset Purchase Agreement);
WHEREAS, in connection with the
Acquisition, BIIB agreed to various arrangements and accommodations
for CTI pursuant to the agreements and arrangements contemplated by
the Asset Purchase Agreement, including that certain Services
Agreement, dated as of December 21, 2007, by and between CTI
and BIIB (the “ Services Agreement
”);
WHEREAS, CTI has requested that BIIB
consent to a transaction pursuant to which CTI will: (i) enter
into a joint venture with Spectrum Pharmaceuticals, Inc., a
Delaware corporation (“ Spectrum ”), for the
marketing and development of the Product in the United States (the
“ Joint Venture Transaction ”); (ii) sell,
assign and transfer to RIT Oncology, LLC, a newly-formed Delaware
limited liability company (“ RIT ”), all of
CTI’s right, title and interest in the Purchased Assets (as
defined in the Asset Purchase Agreement) and CTI’s other
properties, assets and rights related to the Product (collectively
and as further defined in the Purchase and Formation Agreement (as
defined below), the “ Conveyed Assets ”); and
(iii) receive from RIT, in consideration for the Conveyed
Assets, a cash purchase price and a fifty percent
(50%) membership interest in RIT (the “ CTI
Membership Interest ”);
WHEREAS, the other fifty percent
(50%) membership interest in RIT is being issued to Spectrum
in consideration of its initial capital contribution;
WHEREAS, the foregoing transactions
and arrangements with respect to RIT are taking place pursuant to
the terms and conditions of that certain Purchase and Formation
Agreement, dated November 26, 2008, by and among RIT, CTI and
Spectrum (the “ Purchase and Formation Agreement
”) and that certain Amended and Restated Limited Liability
Company Agreement of RIT to be entered into by and between CTI and
Spectrum at the closing contemplated by the Purchase and Formation
Agreement;
WHEREAS, BIIB is willing to consent
to the Joint Venture Transaction and the transfer to RIT of all of
CTI’s right, title and interest in the Conveyed Assets, but
only upon various conditions, including the condition that CTI
executes and delivers to BIIB this Agreement; and
WHEREAS, this Agreement amends and
restates that certain Security Agreement, dated December 21,
2007, by and between CTI and BIIB.
NOW, THEREFORE, in consideration of
the premises and mutual covenants contained herein and for other
good and valuable consideration, the receipt and adequacy of which
are hereby acknowledged, CTI and BIIB agree as follows:
ARTICLE I
DEFINITIONS
Section 1.1 Definitions . As
used in this Agreement, the following terms shall have the meanings
ascribed to them below ( note : terms used but not otherwise
defined herein shall have their respective meanings as set forth in
the Asset Purchase Agreement):
“ Acquisition ”
has the meaning set forth in the recitals.
“ Agreement ” has
the meaning set forth in the introductory paragraph.
“ Asset Purchase
Agreement ” has the meaning set forth in the
recitals.
“ Assigned Contracts
” has the meaning set forth in the Asset Purchase
Agreement.
“ BIIB ” has the
meaning set forth in the introductory paragraph.
“ Collateral ”
has the meaning set forth in Article II .
“ Conveyed Assets
” has the meaning set forth in the recitals.
“ CTI ” has the
meaning set forth in the introductory paragraph.
“ CTI Membership
Interest” has the meaning set forth in the
recitals.
“ Effective Date
” has the meaning set forth in the introductory
paragraph.
“ Encumbrance ”
has the meaning set forth in the Asset Purchase
Agreement.
“ Event of Default
” means: (i) any failure by CTI to pay or perform any of
the Secured Obligations within ninety (90) days after receipt
by CTI of BIIB’s written notice of default; (ii) any
breach by CTI of any warranty, representation or covenant set forth
herein that remains uncured ninety (90) days after receipt by
CTI of BIIB’s written notice of default; (iii) CTI
applies for, or consents to, the appointment of a receiver, trustee
or liquidator of all or a substantial portion of its assets;
(iv) CTI transfers its assets to a third Person as part of a
general assignment for the benefit of creditors or otherwise seeks
a similar voluntary arrangement with its creditors or other form of
relief from its creditors under state or federal law; (v) CTI
becomes and remains insolvent or generally fails to pay its
obligations as they become due for more than ninety (90) days;
(vi) CTI files a voluntary petition for an order for relief
under the United States Bankruptcy Code or any successor or similar
statute (the “ Bankruptcy Code ”);
(vii) CTI consents to, or fails to successfully contest within
ninety (90) days of filing, an involuntary
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petition filed against it under the provisions
of the Bankruptcy Code; (viii) CTI suffers, or permits to
become final, any judgment, decree or order of any court that
appoints a receiver, trustee or liquidator of all or a substantial
portion of its assets; or (ix) CTI suffers the attachment or
execution upon, or other judicial or governmental seizure of, all
or a substantial portion of its assets and fails to successfully
contest such attachment, execution or seizure within ninety
(90) days.
“ FDA ” means the
United States Food and Drug Administration.
“ Governmental Entity
” has the meaning set forth in the Asset Purchase
Agreement.
“ Governmental Rule
” has the meaning set forth in the Asset Purchase
Agreement.
“ Joint Venture
Transaction ” has the meaning set forth in the
recitals.
“ License Agreement
” means the License Agreement defined in the Asset Purchase
Agreement, as the same may be modified pursuant to its terms from
time to time.
“ Losses ” has
the meaning set forth in the Asset Purchase Agreement.
“ Milestone Payments
” has the meaning set forth in the Asset Purchase
Agreement.
“ Permitted Encumbrance
” means: (i) any Encumbrance for Taxes or other fees,
assessments or charges of a Governmental Entity not delinquent or
being contested in good faith by appropriate proceedings;
(ii) Encumbrances arising solely by virtue of any Governmental
Rule relating to banker’s liens, rights of setoff or similar
rights and remedies as to deposit accounts or other funds
maintained with a creditor depository institution;
(iii) Encumbrances on items of equipment and other personal
property (including proceeds thereof and accessions thereto)
securing capital or operating lease obligations with respect solely
to such items of equipment or property; (iv) security
interests that, by their terms, are expressly subordinate to the
security interest granted by CTI to BIIB in this Agreement and that
only secure Subordinated Obligations; and (v) Encumbrances not
otherwise permitted that do not in the aggregate exceed Twenty-Five
Thousand Dollars ($25,000) at any one time.
“ Person ” means
any individual, corporation, partnership, limited liability
company, joint venture, trust, business association, organization,
Governmental Entity or other entity.
“ Product ” has
the meaning set forth in the Asset Purchase Agreement.
“ Purchase and Formation
Agreement ” has the meaning set forth in the
recitals.
“ Purchased Assets
” has the meaning set forth in the Asset Purchase
Agreement.
“ Required Filings
” has the meaning set forth in paragraph (c) of
Article IV .
“ RIT ” has the
meaning set forth in the recitals.
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“ Secured Obligations
” mean any and all obligations of CTI under: (i) this
Agreement (including obligations to indemnify or pay BIIB for
claims, losses, liabilities and expenses as contemplated by
Article VII ); (ii) the Services Agreement (including
obligations to pay or reimburse BIIB with respect to amounts due
and payable pursuant to the Services Agreement); (iii) the
Asset Purchase Agreement (including (a) Section 12.3(iv)
of the Asset Purchase Agreement ( i.e. , indemnification for
certain liabilities of BIIB under Section 15.2 of the Schering
License Agreement (as defined in the Asset Purchase Agreement) and
(b) Section 12.3(ii) of the Asset Purchase Agreement as
it relates to any Sublicense Agreement ( i.e. ,
indemnification for breach by CTI of any of its covenants contained
in any Sublicense Agreement)); (iv) the Supply Agreement
(including obligations to pay or reimburse BIIB with respect to
amounts due and payable pursuant to the Supply Agreement); and
(v) the Sublicense Agreements (including obligations to pay or
reimburse third Persons with respect to amounts due and payable
pursuant to the Sublicense Agreements, whether or not such third
Persons asks, demands, collects or sues for payment or
reimbursement of such amounts by BIIB and/or BIIB pays or
reimburses such third Persons for such amounts). For the avoidance
of doubt, Secured Obligations shall not include any obligations
relating to the Schering License Agreement (as defined in the Asset
Purchase Agreement) as to which BIIB is indefeasibly released by
Schering (as defined in the Asset Purchase Agreement) as
contemplated by Section 2.3 of the Services Agreement (but
only from and after the effectiveness of such release).
“ Services Agreement
” has the meaning set forth in the recitals.
“ Spectrum ” has
the meaning set forth in the recitals.
“ Sublicense Agreements
” mean (i) the Sublicense Agreements defined in the
Asset Purchase Agreement, as the same may be modified pursuant to
their respective terms from time to time, and (ii) any
agreements pursuant to which any of the intellectual property
rights that are a subject of any of the Sublicense Agreement are
provided or made available to RIT, as the same may be modified
pursuant to their respective terms from time to time.
“ Sublicensed Patent
Rights ” has the meaning set forth in the Asset Purchase
Agreement.
“ Sublicensed Patent Rights
Agreements ” means the Sublicensed Patent Rights
Agreements defined in the Asset Purchase Agreement, as the same may
be modified pursuant to their respective terms from time to
time.
“ Subordinated
Obligations ” mean obligations that, by their terms, are
expressly subordinate in right of payment to the Secured
Obligations.
“ Supply Agreement
” means the Supply Agreement defined in the Asset Purchase
Agreement, as the same may be modified pursuant to its terms from
time to time.
“ UCC ” means the
Uniform Commercial Code as the same may from time to time be in
effect in the State of California (and each reference in this
Agreement to an Article (or Division) thereof shall refer to that
Article (or Division, as applicable) as from time to time in
effect); provided , however , if by reason of
mandatory provisions of Governmental Rule any or all of the
attachment, perfection or priority of BIIB’s security
interest in any Collateral is governed by the Uniform Commercial
Code as in effect in a jurisdiction other than the State of
California, then
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such term shall mean the Uniform Commercial Code
(including the Articles or Divisions thereof) as in effect at such
time in such other jurisdiction for purposes of the provisions
hereof relating to such attachment, perfection or priority and for
purposes of definitions related to such provisions.
“ United States ”
has the meaning set forth in the Asset Purchase
Agreement.
“ USPTO ” has the
meaning set forth in the Asset Purchase Agreement.
“ Yearly Royalty
Payments ” has the meaning set forth in the Asset
Purchase Agreement.
Section 1.2 Interpretation
.
(a) When used in this Agreement, the
words “include,” “includes” and
“including” shall be deemed to be followed by the words
“without limitation.”
(b) Any terms defined in the
singular shall have a comparable meaning when used in the plural,
and vice-versa.
(c) All references to any
introductory paragraph, recitals, Articles, Sections, Exhibits and
Schedules shall be deemed references to the introductory paragraph,
recitals, Articles, Sections, Exhibits and Schedules to this
Agreement unless otherwise specifically set forth
herein.
(d) This Agreement shall be deemed
drafted jointly by CTI and BIIB and shall not be specifically
construed against either party based on any claim that such party
or its counsel drafted this Agreement.
ARTICLE II
GRANT OF SECURITY
INTEREST
Section 2.1 Collateral . As
collateral security for the full, prompt, complete and final
payment and performance when due of all the Secured Obligations and
in order to induce BIIB to consent to the Joint Venture
Transaction, CTI hereby grants, and amends and restates its earlier
grant, to BIIB a first priority security interest in all of
CTI’s right, title and interest in, to and under the
following, whether now owned or hereafter acquired (collectively,
the “ Collateral ”):
(a) the Purchased Assets, together
with any other assets or rights related to any of the Purchased
Assets or otherwise used in the development, manufacture or
commercialization of the Product in the United States;
(b) the License
Agreement;
(c) the Supply Agreement;
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(d) the Sublicense Agreements and
any other agreements executed and delivered by CTI at any time
related to the Sublicensed Patent Rights and/or the Sublicensed
Patent Rights Agreement as replacements to or in lieu of a
Sublicense Agreement; and
(e) to the extent not otherwise
included, all proceeds (including the CTI Membership Interest) of
each of the foregoing and all accessions to, substitutions and
replacements for, and rents, profits and products of each of the
foregoing.
Section 2.2 Exception .
Notwithstanding the foregoing provisions of this Article II
, the grant of a security interest as provided herein shall not
extend to, and the term “Collateral” shall not include,
any Assigned Contract in which CTI has any right, title or interest
if and to the extent such Assigned Contract includes a provision
containing a restriction on assignment such that the creation of a
security interest in the right, title or interest of CTI therein
would be prohibited and would, in and of itself, cause or result in
a default thereunder enabling another Person party to such Assigned
Contract to enforce any remedy with respect thereto;
provided , however , that the foregoing exclusion
shall not apply if (i) such prohibition has been waived or
such other Person has otherwise consented to the creation hereunder
of a security interest in such Assigned Contract or (ii) such
prohibition would be rendered ineffective pursuant to the UCC, as
applicable and as then in effect in any relevant jurisdiction, or
any other Governmental Rule or principles of equity;
provided , further , that immediately upon the
ineffectiveness, lapse or termination of any such provision, the
Collateral shall include, and CTI shall be deemed to have granted a
security interest in, all its rights, title and interests in and to
such Assigned Contract as if such provision had never been in
effect; and provided , finally , that the foregoing
exclusion shall in no way be construed so as to limit, impair or
otherwise affect BIIB’s unconditional continuing security
interest in and to all
