Execution Version
Exhibit 10.1
CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY [*], HAS BEEN OMITTED BECAUSE IT IS NOT MATERIAL AND WOULD LIKELY CAUSE COMPETITIVE HARM TO SUTRO BIOPHARMA, INC. IF PUBLICLY DISCLOSED.
EXCLUSIVE LICENSE AGREEMENT
dated as of March 29, 2024
by and between
Sutro Biopharma, Inc.
and
Ipsen Pharma SAS
i
EXCLUSIVE LICENSE AGREEMENT
This Exclusive License Agreement (this “Agreement”) is dated as of March 29, 2024 (the “Effective Date”) by and between Sutro Biopharma, Inc., a corporation organized under the laws of Delaware having a place of business at 111 Oyster Point Boulevard, South San Francisco, CA 94080, USA (“Sutro”), and Ipsen Pharma SAS, a corporation organized under French law having a place of business at 65 Quai George Gorse, 92100 Boulogne-Billancourt, France (“Ipsen”). Sutro and Ipsen may be referred to herein as a “Party” or, collectively, as “Parties”.
RECITALS:
Whereas, Sutro is a pharmaceutical company that owns the Licensed Compound and Licensed Product;
Whereas, Ipsen desires to license from Sutro and Sutro wishes to license to Ipsen, on an exclusive basis, the right to research, develop, manufacture and commercialize the Licensed Compound and Licensed Product in the Field in the Territory.
Now, therefore, in consideration of the mutual promises and undertakings set forth herein, and intending to be legally bound hereby, the Parties agree as follows:
Definitions
Unless otherwise specifically provided herein, the following terms shall have the following meanings:
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(A) “Internal Costs” which are: Direct Costs and Indirect Costs (each as defined below) incurred by a Party or any of its Affiliates plus [*]; and
(B) “External Expenses” which are: the amounts paid by a Party or any of its Affiliates to a Third Party CMO as invoiced by such Third Party CMO to such Party or its Affiliates plus [*], such amounts including any fees paid to such Third Party [*] to the extent incurred for the product supplied to Ipsen, under this Agreement. For clarity, [*].
Notwithstanding anything to the contrary contained herein:
(i) Cost of Goods shall include any and all costs directly attributable to the applicable product that are incurred in connection with establishing, or otherwise causing to become operational, any cost of Manufacturing facilities, including any validation, technology transfer and licensure costs of the product supplied to Ipsen under this Agreement.
(ii) Costs of Goods exclude [*] charged by a Party or its Affiliates [*] set forth in foregoing clause (A) or (B) of this Section,
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(iii) ownership of any capital equipment for Manufacturing of the product shall reside with the Party or its Affiliate that purchased such capital equipment,
(iv) Cost of Goods shall not include the incurred costs attributable to [*],
(v) the fully burdened costs [*] are deemed “directly attributable” or “directly attributed” to the applicable product for purposes of any calculation of Cost of Goods, External Expenses, Direct Costs or Indirect Costs,
(vi) Solely for calculation of Cost of Goods, [*] if applicable.
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(a) [*];
(b) [*];
(c) [*];
(d) [*].
(e) [*];
(f) [*]; and
(h) [*]
For purposes of the definition of Net Sales, [*] shall be excluded from Net Sales and [*] shall be included in Net Sales.
For purposes of the definition of Net Sales, if any Licensed Product under this Agreement is sold in the form of a Combination Product, and the Licensed Product and individual products containing other therapeutically active ingredient(s) are sold separately, the Net Sales of such Combination Product for any period shall be determined by multiplying [*]. If either the Licensed Product or any other product(s) in the Combination Product is not sold separately in the same formulation, dosage or unit quantity as in such Combination Product, the adjustment to Net Sales shall be determined by the Parties in good faith to reasonably reflect the fair market value of the contribution of the Licensed Product in the Combination Product to the total fair market value of such Combination Product. In the event the Parties cannot reach agreement on such allocation, then the dispute shall be resolved in accordance with Article 13.
Sale of the Licensed Product by Ipsen or any of its Affiliates or its or their Sublicensees to another of these entities for resale by such entity to a Third Party shall not be deemed a sale for purposes of this definition of “Net Sales” (and any associated deductions shall not be deductions for purposes of this definition of “Net Sales”).
Transfers or dispositions of the Licensed Product “at cost” or less than cost (1) for preclinical, clinical, regulatory or governmental purposes’ patient assistance programs such as early access programs, temporary authorization for use (e.g., autorisation temporaire d’utilisation in France), named patient programs other limited access programs; (2) for bona fide charitable purposes; (3) for a test marketing program to comply with any Applicable Law, regulation or request by a Regulatory Authority, or (4) for compassionate use (collectively, such transfers or dispositions in (1) through (4), “Excluded Sales”) shall not, in each case of (1) through (4), be deemed sales of the Licensed Product for purposes of this definition of “Net Sales.”
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Net Sales calculations will be determined on an accrual basis in accordance with Accounting Standards consistently applied in accordance with the accounting practices of Ipsen.
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Defined Term | Section |
“[*] Pro-Rata Period” | 5.2(c) |
“Action” | 8.5(b)(i) and 8.5(g) |
“Acquired Entity” | 2.5(d) |
“ADC2 Transaction” | 2.5(d) |
“Agreement” | Preamble |
“Alliance Manager” | 3.1 |
“AMF” | 9.3(b)(ii) |
“Anti-Corruption Laws” | 10.4(f)(i) |
“Applicable Year” | Appendix A |
“Backup CFE Manufacturer” | 5.2(d) |
“Bankruptcy Event” | 12.4 |
“Biosimilar Action” | 8.1 |
“BLA” | 1.60 |
“CFE Shortage” | 5.4(a) |
“CFE Supply Agreement” | 5.2(a) |
“CFE Specification Failure” | 6.5 |
“Claim” | 11.1 |
“Competing Activities” | 2.5(d) |
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Defined Term | Section |
“Controlling Party” | 8.6(c) |
“Confidentiality Agreement” | 1.27 |
“CTA” | 1.51 |
“Development Milestone Event” | 7.3(a) |
“Disclosing Party” | 9.1(a) |
“Disclosing Party’s Confidential Information” | 9.1(a) |
“Distributor” | 1.93 |
“Effective Date” | Preamble |
“Excluded Sales” | 1.67 |
“Exclusions List” | 10.4(d) |
“First Right Party” | 8.4(g)(ii) |
“Gross Sales” | 1.67 |
“ICC” | 13.3 |
“Identified Third Party Rights” | 7.6(c)(i) |
“IMP” | Appendix A |
“Indemnitee” | 11.4 |
“Indemnitor” | 11.4 |
“Initial Development Plan” | 4.2 |
“Initiation of CFE Technology Transfer | 5.4(b) |
“Inventions” | 8.3(a) |
“Ipsen” | Preamble |
“Ipsen Backup CFE Forecast” | 5.2(c) |
“Ipsen’s Cost” | 4.3 |
“Ipsen Indemnitees” | 11.2 |
“Ipsen Inventions” | 8.3(a)(iii) |
“Ipsen Patents” | 8.3(a)(iii) |
“JMC” | 3.2(a) |
“Joint Inventions” | 8.3(a)(iv) |
“Licensed Product Mark” | 4.4(b) |
“Losses” | 11.1 |
“Manufacturing Technology Transfer Agreement” | 5.5(b) |
“Manufacturing Transition Agreement” | 5.1(b) |
“Module 3 Package” | 4.3(b) |
“Module 3 Delivery Date” | 4.3(b) |
“NDA” | 1.60 |
“Non-Escalable Dispute” | 13.1 |
“Ongoing Clinical Trial” | 12.7(e)(i) |
“pAMF” | 1.29 |
“Party” and “Parties” | Preamble |
“Patent Challenge” | 12.6 |
“Phase Ib Trial” | 1.75 |
“Public Official” | 10.4(f) |
“QTA” | 5.7 |
“Recall” | 6.5 |
“RECIST” | 1.68 |
“Regulatory Milestone Event” | 7.3(b) |
“Regulatory Milestone Payment” | 7.3(b) |
“Recipient” | 9.1(a) |
“Remediation Activities” | 4.3 |
“Representatives” | 9.1 |
[*] | [*] |
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Defined Term | Section |
[*] | [*] |
[*] | [*] |
[*] | [*] |
[*] | [*] |
[*] | [*] |
“ROR1” | 1.25 |
“Reversion Royalties” | 12.7(d)(ii) |
“Royalty Payments” | 7.5(a) |
“Sales Milestone Event” | 7.4(a) |
“Sales Milestone Payment” | 7.4(a) |
“SEC” | 9.3(b)(ii) |
“Sublicense Agreement” | 2.2 |
“Subsequent Public Announcement” | 9.3(b) |
“Supply Failure” | 5.4(b) |
“Supply Failure CFE Technology Transfer” | 5.4(b) |
“Sutro” | Preamble |
“Sutro Backup CFE Forecast” | 5.2(c) |
“Sutro Indemnitees” | 11.1 |
“Sutro Inventions” | 8.3(a)(ii) |
“Sutro Manufacturing Technology” | 5.5(a) |
“Sutro Manufacturing Transition Activities” | 5.1(a) |
“Technical Publications” | 9.4 |
“Term” | 12.1 |
“Third Party Infringement” | 8.5(a) |
“Transition Period” | 3.2(b) |
“Transition Services Agreement” | 2.4 |
“Updated Development Plan” | 4.2 |
“Violation” | 10.4(d) |
Licenses AND OTHER RIGHTS
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As soon as reasonably practicable after the Effective Date:
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GOVERNANCE
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DEVELOPMENT AND
COMMERCIALIZATION OF LICENSED PRODUCT
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(i) [*]
(ii) [*]
(iii) [*]; and
(iv) [*].
((i), (iii) and (iv) together the “Module 3 Package,” for clarity, excluding (ii)).
Each document of the Module 3 Package referred to in (i), (ii) and (iv) shall be made available to Ipsen on an on-going basis for Ipsen’s review and comments until the first IND Clearance for Licensed Product. As of the Effective Date, the Parties have agreed upon a proposed timeline of submission of the Module 3 Package set forth in Schedule 4.3(b). Once Sutro has delivered to Ipsen the last document of the Module 3 Package (the date of such delivery, the “Module 3 Delivery Date”), Sutro shall notify Ipsen in writing that the Module 3 Package was submitted and Ipsen shall either within [*] (A) confirm in writing, receipt and acceptance of the Module 3 Package or (B) request changes to the Module 3 Package or request provision of additional information or data to complete and finalize the Module 3 Package. In the case of (B), Sutro shall use Commercially Reasonable Efforts to promptly respond to such request until completion of the Module 3 Package is acknowledged in writing by the Parties. Such responses shall not alter the Module 3 Delivery Date. Sutro acknowledges and agrees that the Module 3 Package provided to Ipsen cannot [*]. With respect to copies of the reports listed in subsection (ii) listed above, Sutro will provide such copies to Ipsen promptly after Sutro’s final internal approval of such reports, and in no case later than [*] after the Module 3 Delivery Date. For clarity, Sutro’s failure to timely deliver such copies shall not alter the Module 3 Delivery Date. [*] For clarity, [*]
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MANUFACTURING
[*]Sutro Manufacturing Transition Activities. Subject to the Manufacturing Transition Agreement, Sutro shall be responsible to conduct all Manufacturing activities to Manufacture or have Manufactured and for using Commercially Reasonable Efforts to supply all the required quantities as set forth in
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Schedule 5.1(a) of Licensed Product as a semi-finished product (without the secondary packaging), meeting the applicable GMP specifications, a draft of which is set forth in Schedule 5.1(a) subject to review and good faith amendment by Sutro pursuant to its internal quality policies, to be used by Ipsen to conduct its Development activities in the Territory in the Field under this Agreement. All Licensed Product (or Licensed Compound, Components or other materials, if any) supplied by or on behalf of Sutro to Ipsen pursuant to this Agreement shall be at a price equal to the Cost of Goods for such Licensed Product in accordance with Section 5.1(b), (the activities of this Section 5.1(a), excluding the Manufacture and supply of CFE, collectively, the “Sutro Manufacturing Transition Activities”). In the event Sutro, after supplying a first batch of Licensed Product under this Section 5.1 (a), is unable to provide the quantities of Licensed Product set forth in Schedule 5.1(a) by the dates set forth in Schedule 5.1(a), Sutro shall use its best efforts to rectify such shortage in a timely manner and no later than [*] following Sutro’s receipt of Ipsen’s written notice from Ipsen of such failure. [*].
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Sutro may exercise any of its rights, or perform any of its obligations, under this Agreement by subcontracting the exercise or performance of all or any portion of such rights and obligations on Sutro’s behalf by a CMO of Sutro’s choice after Ipsen has been given reasonable opportunity to comment on such choice, provided that the final selection shall be under Sutro’s decision making authority so long as such CMO is an established Third Party CMO of pharmaceutical products that is GMP qualified. Any subcontract granted or entered into by Sutro with a subcontractor as contemplated by this Section that Sutro may have under this Agreement shall not relieve Sutro from any of its obligations under this Agreement. Sutro shall remain liable for the acts and omissions of its subcontractors under this Agreement as if “Sutro” hereunder. If at any time after the Effective Date, Sutro reasonably determines that it will conduct the Manufacturing activities required hereunder that were initially subcontracted to a CMO directly instead of through one or more CMO, such transfer of responsibility to Sutro shall be subject to Ipsen’s express prior consent and approval, which consent shall not be unreasonably withheld if Sutro’s determination is commercially reasonable from the viewpoint of this Agreement as a whole taking into account both Parties’ interests.
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To enable Ipsen to assume control and have the sole responsibility for, at Ipsen’s cost, all Manufacturing activities for all Licensed Compound and Licensed Products (excluding the CFE) after the Transition Period, as mentioned in Section 5.1(a):
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The Parties will also negotiate and enter into a separate quality technical agreement (“QTA”) within [*] of the Effective Date or otherwise agreed by both Parties. Pursuant to Section 6.6 (CMC and Quality Audit), within [*] of the Effective Date, Sutro shall allow Ipsen to conduct, at Ipsen’s Cost, a GMP quality inspection of the Manufacturing site of Sutro and of each of Sutro’s CMO (solely if, and to the extent, permitted by Sutro’s contracts with its CMOs and subject to Sutro’s Commercially Reasonable Efforts) in which the Licensed Compound (excluding CFE) and the Licensed Product is Manufactured, stored and handled to assess compliance with GMP standard and applicable regulatory requirements; provided that Ipsen shall have no right to audit any information directed to CFE Technology or Manufacture of CFE.
REGULATORY MATTERS
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Financial Provisions
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In partial consideration for the rights and licenses granted by Sutro to Ipsen hereunder, Ipsen shall ensure that Ipsen Biopharmaceuticals, Inc. (USA), a fully-owned Affiliate of Ipsen, pays Sutro twenty-five million USD ($25,000,000) to acquire newly issued shares of Sutro common stock at a price per share representing a premium of 17% to the volume weighted average price (VWAP) of Sutro’s common stock as traded on Nasdaq Stock Market LLC for the twenty (20) trading day period prior to the signature date of this Agreement, in accordance with the terms set forth in a certain investment agreement, substantially in the form attached hereto as Appendix B (the “Investment Agreement”).
| Table 7.3(a) – Development Milestones | |
# | Development Milestone Event | Milestone Payment |
[*]. | [*][*] [*][*] [*][*] |
[*] |
[*] |
[*] | |
[*] | [*] | [*] |
| ||
[*] | [*] | [*] |
[*] | [*] | [*] |
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(*) The Milestone Payment amounts referenced in Table 7.3(a) corresponding to Development Milestone Event #1 [*] will be reduced by fifty (50) percent, if [*]. For clarity, [*].
(**) In the event the Development Milestone Event #3 related to [*] for the first Indication is initiated after completion of [*].
(***) The “Second Indication” means an Indication different from the first Indication (i.e., not a line of treatment of the first Indication).
| Table 7.3(b) – Regulatory Milestones | |||
# | Regulatory Milestone Event | Payment by Indication (***) | ||
First Indication | Second Indication | Each of Third, Fourth, or Fifth Indication | ||
[*] | [*] | [*] | [*] | [*] |
[*] | [*] | [*] | [*] | [*] |
[*] | [*] | [*] | [*] | [*] |
[*] | [*] | [*] | [*] | [*] |
(***) The payment for the second, third, fourth and fifth Indications, shall be deemed achieved and payable if such Indication is a different Indication from any preceding Indication (i.e., not a line of treatment of the any preceding Indication) for the same milestone regardless of whether such subsequent Indication is for the same or a different Licensed Product from the preceding Indication(s). [*]
Table 7.4 – Sales Milestones | |
Sales Milestone Event
| Milestone Payment |
[*] | [*] |
[*] | [*] |
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[*] | [*] |
[*] | [*] |
Table 7.5 – Royalty Rates for Licensed Products | |
Calendar Year Net Sales of all Licensed Product in the Territory | Royalty Rate |
[*] | [*] |
[*] | [*] |
[*] | [*] |
[*] | [*] |
[*]
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Ipsen Pharma SAS
65 Quai George Gorse
Boulogne-Billancourt 92100
36
France
Attn: Accounting Department
Email: [*]
With a copy to:
Ipsen Pharma SAS
65 Quai George Gorse
Boulogne-Billancourt 92100
France
Attn: Strategic Alliance Management
Email: [*]
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Sutro will (a) keep complete, true, and accurate books and records in accordance with its accounting standards, in relation to the Cost of Goods billed or invoiced for Licensed Compound and Licensed Product in sufficient detail to enable amounts owed or payable to Sutro be determined; and (b) maintain such books and records for at least [*] after they are incurred. During the Royalty Term and for one year thereafter, Sutro shall permit, and shall cause its Affiliates to permit, an independent certified public accounting firm of nationally recognized standing selected by Ipsen, and reasonably acceptable to Sutro or such Affiliate, to have access to and to review, during normal business hours upon reasonable prior written notice, the applicable books and records of Sutro and its Affiliates to verify the accuracy of the Cost of Goods billed or invoiced to Ipsen under Article 5. Sections 7.11(a)(i), (ii) and (iii) shall apply mutatis mutandis to Ipsen’s right to audit the Cost of Goods.
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INTELLECTUAL PROPERTY
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CONFIDENTIALITY
Any combination of features or disclosures shall not be deemed to fall within the foregoing exclusions merely because individual features are published or available to the general public or in the rightful possession of the Recipient unless the combination itself and principle of operation are published or available to the general public or in the rightful possession of the Recipient.
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Ipsen shall have the right in its sole discretion to publish peer reviewed manuscripts, or give other forms of public disclosure such as abstracts and presentations in scientific reviews (each, a “Technical Publication”), of results of studies carried out under this Agreement or otherwise pertaining to the Development of the Licensed Compound or Licensed Products in the Field in the Territory, provided that Ipsen shall (i) in all publications name Sutro as the researcher and developer of Licensed Compound and (ii) provide Sutro with a copy of any proposed Technical Publication at least: (A) [*] prior to submission or disclosure for oral presentations and abstracts and (B) [*] prior to submission to a publisher for manuscripts for the purpose of enabling Sutro to review and comment on the proposed Technical Publication, within [*] of receipt for the oral presentations and abstracts and within [*] for manuscripts. Prior to submission, Ipsen shall revise the draft Technical Publication as Sutro reasonably believes necessary to protect Sutro’s Confidential Information and shall consider Sutro’s comments in good faith. Sutro shall have no right to publish Technical Publications directed to the Licensed
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Compound or the Licensed Product, except to make a statement in which Sutro’s role in the identification and early development of the Licensed Compound is described; provided that such restriction shall not preclude Sutro from publishing any Technical Publication merely because it generally references ADCs, ADC2s or products that may be produced using Sutro Manufacturing IP, Sutro Technology or CFE Technology.
REPRESENTATIONS, WARRANTIES AND COVENANTS
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For purposes of this Section 10.4(f), “Public Official” means (A) any officer, employee or representative of any regional, federal, state, provincial, county or municipal government or government department, agency or other division; (B) any officer, employee or representative of any commercial enterprise that is owned or controlled by a government, including any state-owned or controlled veterinary, laboratory or medical facility; (C) any officer, employee or representative of any public international organization, such as the African Union, the International Monetary Fund, the United Nations or the World Bank; and (D) any person acting in an official capacity for any government or government entity, enterprise or organization identified above.
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INDEMNIFICATION AND INSURANCE
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TERM AND TERMINATION
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Ipsen may terminate this Agreement with immediate effect upon written notice to Sutro based on legitimate and documented concerns over safety of the Licensed Product whether declared or not by a Regulatory Authority.
Ipsen may terminate this Agreement upon [*] prior written notice if Regulatory Approval is not granted by the EMA and/or FDA, or if the EMA and/ or FDA requires the conduct of further studies in support of the Regulatory Approval after the Regulatory Approval has been granted.
If Ipsen or any of its Affiliates directly takes any action, or knowingly provides financial or other assistance (including direct legal or technical advice) to any Third Party, for the intended purpose of challenging in a court or administrative proceeding any claim in any Sutro Patent, Sutro Manufacturing Patent or CFE Patent as being invalid, unenforceable or otherwise not patentable (any such action or assistance, a “Patent Challenge”), then Sutro, at its discretion, may give notice to Ipsen that Sutro will terminate the Agreement unless such Patent Challenge is withdrawn, abandoned or terminated (as appropriate) within [*] from the date of such notice. If Ipsen or its Affiliate (as the case may be) does not withdraw, abandon or terminate (as appropriate) such Patent Challenge within such [*] period then,
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subject to the remainder of this Section 12.6, Sutro may terminate this Agreement. In the event that Sutro notifies Ipsen in writing that any Sublicensee or Distributor has initiated a Patent Challenge, then Ipsen shall terminate such Sublicensee’s Sublicense Agreement or Distributor’s sublicense granted pursuant to Section 2.2 in its entirety, unless such action by such Sublicensee or Distributor is withdrawn within [*] after Sutro’s notice to Ipsen thereof.
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Ipsen will and hereby does, and will cause its Affiliates and Sublicensees to, (a) assign to Sutro all of its rights, title, and interests in and to all Clinical Trial data, submissions to any Regulatory Authority, Regulatory Approvals, and Pricing and Reimbursement Approvals (where applicable) related to the Licensed Compounds and Licensed Products owned or Controlled by Ipsen or any of its Affiliates or its or their Sublicensees as of the effective date of termination, and (b) take those steps reasonably necessary to transfer ownership of all such assigned regulatory submissions, Regulatory Approvals, and Pricing and Reimbursement Approvals (where applicable) to Sutro, including submitting to each applicable Regulatory Authority a letter or other necessary documentation notifying such Regulatory Authority of the transfer of such ownership of such regulatory submissions, Regulatory Approvals, and Pricing and Reimbursement Approvals (where applicable).
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(each of the foregoing royalties set forth in this Section 12.7(d)(ii) above, “Reversion Royalties”).
The Reversion Royalties due upon termination of this Agreement by Ipsen pursuant to Section 12.3 (Termination for Sutro’s Material Breach) are without prejudice to Ipsen’s rights and remedies available at law or equity provided that no Reversion Royalties shall be due if the reversion licenses granted to Sutro in Section 12.7(i) are not in effect.
For purposes of the above:
Upon termination of this Agreement by Sutro pursuant to Section 12.3 (Termination for Ipsen’s Material Breach), by either Party pursuant to Section 12.4 (Termination for Bankruptcy), or by Ipsen pursuant to Section 12.5 (Termination for Regulatory Reasons) the licenses granted to Sutro in Section 12.7 will be royalty-free.
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DISPUTE RESOLUTION
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MISCELLANEOUS PROVISIONS
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If to Sutro, addressed to:
SUTRO Biopharma, Inc.
111 Oyster Point Boulevard
South San Francisco, CA 94080
USA
Attention: General Counsel
Email: [*]
With a copy, which shall not constitute notice, to:
Fenwick & West LLP
801 California Street
Mountain View, CA 94041
USA
Attention: [*]
Email: [*]
If to Ipsen, addressed to:
Ipsen Pharma SAS
65 Quai Georges Gorse
Boulogne-Billancourt, 92100
France
Attn: EVP General Counsel & Chief Business Ethics Officer
Email: [*]
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With a copy, which shall not constitute notice, to:
Ipsen Pharma SAS
65 Quai Georges Gorse
Boulogne-Billancourt, 92100
France
Attn: Strategic Alliance Management
Email: [*]
[signature pages follow]
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IN WITNESS WHEREOF, duly authorized representatives of the Parties have executed this Agreement as of the Effective Date.
SUTRO BIOPHARMA, INC. |
|
|
|
_/s/ William J. Newell_______ Name: William J. Newell Title: Chief Executive Officer |
|
[Signature Page to Exclusive License Agreement]
IN WITNESS WHEREOF, duly authorized representatives of the Parties have executed this Agreement as of the Effective Date.
| IPSEN PHARMA SAS |
|
|
| _/s/ David Loew____________ Name: David Loew Title: Chief Executive Officer |
[Signature Page to Exclusive License Agreement]
Execution Version
Appendix A
[*]
Appendix A.1
[*]
4
Appendix B
Investment Agreement
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SUTRO BIOPHARMA, INC.
INVESTMENT AGREEMENT
This Investment Agreement (this “Agreement”) is made and entered into as of March 29, 2024 (the "Effective Date"), by and between Sutro Biopharma, Inc., a Delaware corporation (the “Company”), and Ipsen Biopharmaceuticals, Inc., a Delaware corporation (the “Investor”).
Recitals
Whereas, pursuant to the terms and subject to the conditions set forth in this Agreement, the Company desires to issue and sell to the Investor, and the Investor desires to subscribe for and purchase from the Company, certain shares of common stock, par value $0.001 per share, of the Company (the “Common Stock”);
Whereas, simultaneously with the execution of this Agreement, the Company and Ipsen Pharma SAS (“Ipsen”), are entering into an Exclusive License Agreement (the “License Agreement”); and
Whereas, in partial consideration for the rights and licenses granted by the Company to Ipsen under the License Agreement, the Investor, a fully-owned Affiliate (as defined in the License Agreement) of Ipsen, has agreed to pay the Company twenty-five million USD ($25,000,000) (the “Purchase Price”) to acquire newly issued shares of Common Stock (the “Shares”) at a price per share of $5.1788, representing a premium of 17% to the volume weighted average price, as reported by Bloomberg, of the Common Stock as traded on The Nasdaq Stock Market LLC for the last twenty (20) consecutive trading days prior to the date of this Agreement, in accordance with the terms set forth in this Agreement.
Agreement
Now, Therefore, in consideration of the mutual promises, representations, warranties and covenants hereinafter set forth and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:
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The Company hereby represents and warrants to the Investor, as of the date of this Agreement and as of the Closing Date, as set forth below.
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The Investor hereby represents and warrants to the Company as follows, as of the date of this Agreement and as of the Closing Date:
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“THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “ACT”), OR QUALIFIED OR REGISTERED UNDER STATE SECURITIES OR BLUE SKY LAWS. THESE SECURITIES HAVE BEEN ACQUIRED FOR INVESTMENT AND NOT WITH A VIEW TO, OR IN CONNECTION WITH, THE SALE OR DISTRIBUTION THEREOF, AND NEITHER THESE SECURITIES NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE SOLD, OFFERED FOR SALE, PLEDGED, HYPOTHECATED OR OTHERWISE TRANSFERRED OR DISPOSED OF IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT WITH RESPECT TO THE SECURITIES UNDER THE ACT OR AN OPINION OF COUNSEL IN A FORM SATISFACTORY TO THE COMPANY THAT SUCH REGISTRATION IS NOT REQUIRED UNDER THE ACT.”
Any legend required by the securities laws of any state to the extent such laws are applicable to the Shares represented by the certificate so legended. The Investor consents
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to the Company making a notation on its records and giving instructions to any transfer agent of the Securities in order to implement the restrictions on transfer established in Section 4.
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If to Sutro, addressed to:
SUTRO Biopharma, Inc.
111 Oyster Point Boulevard
South San Francisco, CA 94080
USA
Attention: General Counsel
Email: [*]
With a copy, which shall not constitute notice, to:
Fenwick & West LLP
801 California Street
Mountain View, CA 94041
USA
Attention: [*]
Email: [*]
If to the Investor, addressed to:
Ipsen Biopharmaceuticals, Inc.
One Main Street
Cambridge MA 02142
Attn: [*]
Email: [*]
With a copy, which shall not constitute notice, to:
Orrick, Herrington & Sutcliffe LLP
2100 Pennsylvania Ave. NW
Washington, D.C. 20037
Attention: [*]
Email: [*]
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[Remainder of Page Intentionally Left Blank]
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Signature page to Investment Agreement
In Witness Whereof, the parties hereto have executed this Investor Agreement as of the date first written above.
THE COMPANY:
SUTRO BIOPHARMA, INC.
By:/s/ William J. Newell
Name: William J. Newell
Title: Chief Executive Officer
INVESTOR:
IpSen Biopharmaceuticals, Inc.
By:/s/ Stewart Campbell
Name: Stewart Campbell
Its: EVP and President North America
Address: One Main Street
Cambridge MA 02142
Schedule 1.57
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Schedule 2.3(a)
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Schedule 2.3(b)
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Schedule 2.6(a)
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Schedule 4.3(b)
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Schedule 5.1(a)
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Schedule 9.3(a)
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Schedule 10.2(b)
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