Passage BIO, Inc. (PASG)
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(State or other jurisdiction of incorporation or organization)
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(Commission File Number)
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(I.R.S. Employer Identification No.)
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Address Not Applicable¹
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ZIP Code Not Applicable
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(Address of principal executive offices)
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(Zip Code)
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Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
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Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
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Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
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Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
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Title of each class
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Trading Symbol(s)
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Name of each exchange on which registered
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(Nasdaq Capital Market)
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Item 1.01.
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Entry into a Material Definitive Agreement.
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| • |
Two-step merger structure. The transaction will be effected
in two steps: (i) at the closing, Merger Sub will merge with and into Remix, with Remix continuing as the surviving corporation and a wholly owned subsidiary of the Company (the “First Merger”), and (ii) immediately following the First Merger and as part of the same overall transaction, the surviving corporation of the First Merger will merge with and into Merger Sub II, with
Merger Sub II continuing as the surviving company and a wholly owned subsidiary of the Company (the “Second Merger” and, together with the First
Merger, the “Mergers”). The parties intend that the Mergers, taken together, will qualify as a “reorganization” within the meaning of Section 368(a)
of the Internal Revenue Code of 1986, as amended.
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Pre-funded warrants in the Concurrent Financing. The portion
of the private placement to be consummated immediately prior to the effective time of the First Merger will be funded through the sale of shares of Remix common stock and/or pre-funded warrants to purchase shares of Remix common stock,
which pre-funded warrants will be converted into warrants to purchase shares of Company Common Stock on the same terms and conditions, with the number of underlying shares and the exercise price per share determined in accordance with the
Amended and Restated Merger Agreement.
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Item 3.02.
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Unregistered Sales of Equity Securities.
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Item 9.01.
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Financial Statements and Exhibits.
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Exhibit Number
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Exhibit Description
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Amended and Restated Agreement and Plan of Merger, dated September 2, 2026, by and among
Passage Bio, Inc., Peregrine Merger Sub, Inc., Peregrine Merger Sub LLC and Remix Therapeutics, Inc.
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Form of Support Agreement by and between Passage Bio, Inc. and certain stockholders of Remix Therapeutics, Inc.
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Form of Support Agreement by and between Remix Therapeutics, Inc. and certain stockholders of Passage Bio, Inc.
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Form of Lock-Up Agreement.
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| 10.4 |
Form of Amended and Restated Subscription Agreement among Remix Therapeutics, Inc. and the purchasers signatory thereto.
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Form of Registration Rights Agreement among Remix Therapeutics, Inc., Passage Bio, Inc., and the purchasers signatory thereto.
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Form of Contingent Value Rights Agreement.
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104
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Cover Page Interactive Data File (embedded within the Inline XBRL document).
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PASSAGE BIO, INC.
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Date: September 2, 2026
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By:
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/s/ Kathleen Borthwick
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Name:
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Kathleen Borthwick
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Title:
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Chief Financial Officer
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Page
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ARTICLE I DEFINITIONS AND INTERPRETATIVE PROVISIONS
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A-3
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1.1
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Definitions
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A-3
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1.2
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Other Definitional and Interpretative Provisions
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A-15
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ARTICLE II THE MERGER
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A-16
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2.1
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The Merger
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A-16
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2.2
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Closing
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A-17
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2.3
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Organizational Documents; Directors and Officers
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A-17
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2.4
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Conversion of Remix Convertible Notes; Effect on Shares; Treatment of
Remix Options and Remix Warrants
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A-18
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2.5
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Contingent Value Right.
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A-20
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2.6
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Closing of Remix’s Transfer Books
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A-20
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2.7
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Surrender of Remix Common Stock
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A-20
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2.8
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Calculation of Net Cash
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A-21
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2.9
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Further Action
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A-22
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2.10
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Withholding
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A-22
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2.11
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Statutory Rights of Appraisal
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A-22
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ARTICLE III REPRESENTATIONS AND WARRANTIES OF REMIX
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A-23
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3.1
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Due Organization; Subsidiaries
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A-23
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3.2
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Organizational Documents
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A-23
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3.3
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Authority; Binding Nature of Agreement
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A-23
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3.4
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Vote Required
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A-24
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3.5
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Non-Contravention; Consents
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A-24
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3.6
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Capitalization
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A-25
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3.7
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Financial Statements
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A-26
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3.8
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Absence of Changes
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A-27
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3.9
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Absence of Undisclosed Liabilities
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A-27
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3.10
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Title to Assets
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A-27
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3.11
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Real Property; Leasehold
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A-27
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3.12
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Intellectual Property
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A-27
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3.13
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Agreements, Contracts and Commitments
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A-31
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3.14
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Compliance; Permits; Restrictions
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A-33
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3.15
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Legal Proceedings; Orders
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A-34
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3.16
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Tax Matters
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A-34
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3.17
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Employee and Labor Matters; Benefit Plans
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A-36
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3.18
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Environmental Matters
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A-37
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3.19
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Insurance
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A-38
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3.20
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Transactions with Affiliates
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A-38
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3.21
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No Financial Advisors
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A-38
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3.22
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Privacy and Data Security
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A-38
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3.23
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Concurrent Financing
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A-39
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3.24
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No Other Representations or Warranties
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A-39
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ARTICLE IV REPRESENTATIONS AND WARRANTIES OF PASSAGE AND MERGER SUB
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A-39
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4.1
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Due Organization; Subsidiaries
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A-40
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4.2
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Organizational Documents
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A-40
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4.3
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Authority; Binding Nature of Agreement
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A-40
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4.4
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Vote Required
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A-41
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4.5
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Non-Contravention; Consents
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A-41
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4.6
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Capitalization
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A-42
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Page
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4.7
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SEC Filings; Financial Statements
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A-43
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4.8
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Absence of Changes
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A-44
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4.9
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Absence of Undisclosed Liabilities
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A-45
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4.10
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Title to Assets
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A-45
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4.11
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Real Property; Leasehold
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A-45
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4.12
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Intellectual Property
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A-45
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4.13
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Agreements, Contracts and Commitments
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A-49
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4.14
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Compliance; Permits; Restrictions
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A-50
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4.15
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Legal Proceedings; Orders
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A-52
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4.16
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Tax Matters
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A-52
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4.17
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Employee and Labor Matters; Benefit Plans
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A-53
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4.18
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Environmental Matters
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A-55
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4.19
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Insurance
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A-55
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4.20
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Transactions with Affiliates
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A-56
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4.21
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No Financial Advisors
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A-56
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4.22
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Valid Issuance; No Bad Actor
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A-56
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4.23
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Privacy and Data Security
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A-56
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4.24
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No Other Representations or Warranties
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A-56
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ARTICLE V COVENANTS
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A-57
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5.1
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Conduct of Remix’s Business
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A-57
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5.2
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Conduct of Passage’s Business
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A-58
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5.3
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Access and Investigation.
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A-60
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5.4
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No Solicitation.
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A-60
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5.5
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Notification of Certain Matters
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A-62
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5.6
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Legacy Asset Disposition
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A-62
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5.7
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Registration Statement; Proxy Statement
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A-62
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5.8
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Remix Stockholder Written Consent.
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A-63
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5.9
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Passage Stockholder Meeting.
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A-65
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5.10
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Efforts; Regulatory Approvals.
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A-66
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5.11
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Disclosures
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A-67
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5.12
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Passage Options
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A-67
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5.13
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Passage Restricted Stock Unit Awards
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A-67
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5.14
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Passage SPP
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A-68
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5.15
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Indemnification of Officers and Directors
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A-68
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5.16
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Tax Matters
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A-69
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5.17
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Listing
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A-69
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5.18
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Legends
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A-70
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5.19
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Officers and Directors
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A-70
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5.20
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Termination of Certain Agreements and Rights
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A-70
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5.21
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Section 16 Matters
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A-71
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5.22
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Allocation Certificate
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A-71
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5.23
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Obligations of Merger Sub
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A-71
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5.24
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Takeover Statutes
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A-71
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5.25
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Stockholder Litigation
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A-71
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5.26
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Concurrent Financing
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A-72
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5.27
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Passage Equity Plans
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A-72
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5.28
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Passage 401(k) Plan
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A-73
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5.29
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Employees
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A-73
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5.30
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Section 280G
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A-73
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ARTICLE VI CONDITIONS TO CONSUMMATION OF THE MERGER
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A-73
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6.1
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Conditions Precedent to Obligations of Each Party
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A-73
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6.2
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Conditions Precedent to Obligations of Remix
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A-74
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Page
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6.3
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Conditions Precedent to Obligations of Passage
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A-75
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6.4
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Frustration of Closing Conditions
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A-75
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ARTICLE VII CLOSING DELIVERIES
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A-76
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7.1
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Closing Deliveries of Remix
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A-76
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7.2
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Closing Deliveries of Passage
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A-76
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ARTICLE VIII TERMINATION
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A-76
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8.1
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Termination
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A-76
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8.2
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Effect of Termination
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A-77
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8.3
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Expenses; Termination Fees.
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A-78
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ARTICLE IX GENERAL PROVISIONS
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A-79
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9.1
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Non-Survival of Representations and Warranties
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A-79
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9.2
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Amendment
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A-79
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9.3
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Waiver
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A-79
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9.4
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Entire Agreement; Counterparts; Exchanges by Electronic Transmission or
Facsimile
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A-79
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9.5
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Applicable Law; Jurisdiction
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A-80
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9.6
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Assignability
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A-80
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9.7
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Notices
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A-80
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9.8
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Cooperation
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A-81
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9.9
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Severability
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A-81
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9.10
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Other Remedies; Specific Performance
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A-81
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9.11
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No Third-Party Beneficiaries
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A-81
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Exhibit A
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Form of Passage Stockholder Support Agreement
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Exhibit B
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Form of Remix Stockholder Support Agreement
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Exhibit C
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Form of Passage Lock-Up Agreement
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Exhibit D
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Form of Remix Lock-Up Agreement
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Exhibit E
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Form of Certificate of Incorporation of the Surviving Corporation
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Exhibit F
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Form of Limited Liability Company Agreement of the Surviving Company
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Exhibit G
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Form of CVR Agreement
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A.
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Pursuant to Section 9.2 of the Original Merger Agreement, Passage, Merger Sub and Remix wish to amend and restate the
Original Merger Agreement in its entirety on the termsand subject to the conditions set forth herein.
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B.
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Passage and Remix intend to effect a merger of Merger Sub with and into Remix (the “First
Merger”) in accordance with this Agreement and Delaware Law. Upon consummation of the Merger, Merger Sub will cease to exist, and Remix will become a wholly owned subsidiary of Passage.
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C.
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Immediately following the First Merger and as part of the same over all transaction as the First Merger, Remix will merge
with and into Merger Sub II (the “Second Merger” and, together with the First Merger, the “Mergers”). Upon consummation of the Second Merger, Remix will
cease to exist, and Merger Sub II will continue as a wholly owned subsidiary of Passage.
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D.
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The board of directors of Passage (the “Passage Board”) has (i) determined that the
Contemplated Transactions are fair to, advisable and in the best interests of Passage and its stockholders, (ii) approved and declared advisable this Agreement and the Contemplated Transactions, including the issuance (or reservation
for issuance) of shares of Passage Common Stock to the equityholders of Remix pursuant to the terms of this Agreement, the change of control of Passage and the other actions contemplated by this Agreement, and (iii) determined to
recommend, upon the terms and subject to the conditions set forth in this Agreement, that the stockholders of Passage vote to (a) approve the issuance (or reservation for issuance) of Passage Common Stock in the First Merger and the
change of control resulting from the First Merger in accordance with Nasdaq Listing Rule 5635 (the “Nasdaq Issuance Proposal”) and (b) adopt the Amended and Restated Passage Charter (the “Passage Charter Amendment Proposal”).
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E.
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The board of directors of Merger Sub (the “Merger Sub Board”) has (i) determined
that the Contemplated Transactions are fair to, advisable, and in the best interests of Merger Sub and its sole stockholder, (ii) approved and declared advisable this Agreement and the Contemplated Transactions and (iii) determined to
recommend, upon the terms and subject to the conditions set forth in this Agreement, that Passage, in its capacity as the sole stockholder of Merger Sub, vote to adopt this Agreement and thereby approve the Contemplated Transactions.
Immediately prior to the execution and delivery of this Agreement, Passage, in its capacity as the sole stockholder of Merger Sub, duly executed and delivered a written consent approving and adopting this Agreement in accordance with
Delaware Law, which written consent, by its terms, will be effective immediately following the execution of this Agreement (the “Merger Sub Stockholder Approval”).
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F.
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The sole member of Merger Sub II has (i) determined that the Contemplated Transactions are fair to, advisable, and in the
best interests of Merger Sub II and its sole member, (ii) approved and declared advisable this Agreement and the Contemplated Transactions and (iii) adopted this Agreement and thereby approved the Contemplated Transactions (the “Merger Sub II Member Approval” and, together with the Merger Sub Stockholder Approval, the “Merger Sub Approvals”). Immediately prior to the execution and
delivery of this Agreement, Passage,in its capacity as the sole member of Merger Sub II, duly executed and delivered the Merger SubII Member Approval.
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G.
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The board of directors of Remix (the “Remix Board”) has (i) determined that the
Contemplated Transactions are fair to, advisable and in the best interests of Remix and its stockholders, (ii) approved and declared advisable this Agreement and the Contemplated Transactions and (iii) determined to recommend, upon
the terms and subject to the conditions set forth in this Agreement, that the stockholders of Remix vote to adopt this Agreement and thereby approve the Contemplated Transactions.
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H.
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Concurrently with the execution and delivery of this Agreement and as a condition and inducement to Remix’s willingness to
enter into this Agreement, the stockholders, officers and directors of Passage set forth on Section A of the Passage Disclosure Schedule (solely in their capacity as stockholders of Passage) are executing support agreements in
favor of Remix in substantially the form attached hereto as Exhibit A (the “Passage Stockholder Support Agreement”), pursuant to which such Persons have, subject to the terms and
conditions set forth therein, agreed to vote all of their shares of Passage Common Stock in favor of the Passage Stockholder Matters.
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I.
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Concurrently with the execution and delivery of this Agreement and as a condition and inducement to Passage’s willingness
to enter into this Agreement, the officers, directors and stockholders of Remix set forth on Section A of the Remix Disclosure Schedule (solely in their capacity as stockholders of Remix) are executing support agreements in
favor of Passage in substantially the form attached hereto as Exhibit B (the “Remix Stockholder Support Agreement”), pursuant to which such Persons have, subject to the terms and
conditions set forth therein, agreed to vote all of their shares of Remix Capital Stock in favor of this Agreement and an amendment to Remix’s Amended and Restated Certificate of Incorporation to increase the number of authorized
shares of Remix Common Stock from 162,000,000 to 300,000,000 (the “Remix Charter Amendment”).
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J.
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Concurrently with the execution and delivery of this Agreement and as a condition and inducement to Remix’s willingness to
enter into this Agreement, the officers and directors of Passage set forth on Section B of the Passage Disclosure Schedule are executing lock-up agreements in substantially the form attached hereto as Exhibit C
(collectively, the “Passage Lock-Up Agreements”).
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K.
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Concurrently with the execution and delivery of this Agreement and as a condition and inducement to Passage’s willingness
to enter into this Agreement, the officers, directors and stockholders of Remix set forth on Section B of the Remix Disclosure Schedule are executing lock-up agreements in substantially the form attached hereto as Exhibit D
(collectively, the “Remix Lock-Up Agreements”).
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L.
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It is expected that promptly after the Registration Statement is declared effective under the Securities Act, the
stockholders of Remix sufficient to adopt and approve this Agreement and the Mergers as required under Delaware Law and Remix’s Organizational Documents will execute and deliver an action by written consent constituting the Required
Remix Stockholder Vote, in a form and substance reasonably acceptable to Passage and Remix (each, a “Remix Stockholder Written Consent” and collectively, the “Remix
Stockholder Written Consents”).
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M.
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Concurrently with the execution and delivery of this Amended and Restated Agreement, certain investors have executed an
Amended and Restated Subscription Agreement by and among Remix and the Persons named therein, pursuant to which such Persons have agreed to purchase the number of shares of Remix Common Stock and/or pre-funded warrants to purchase
Remix Common Stock set forth therein immediately prior to the Initial Effective Time in connection with the Concurrent Financing (the “Subscription Agreement”).
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N.
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Concurrently with the execution and delivery of this Agreement, certain investors have executed a Convertible Promissory
Note Purchase Agreement by and among Remix and the lenders party thereto, pursuant to which such lenders have agreed to purchase the convertible promissory notes concurrently with the execution and delivery of this Agreement in
connection with the Concurrent Financing, which convertible promissory notes shall convert into shares of Remix Common Stock in connection with the Remix Convertible Notes Conversion (the “Remix
Note Purchase Agreement (2026)”).
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O.
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Each of the Parties hereto intends that, for United States federal income tax purposes, the Mergers, taken together, will
qualify as a “reorganization” within the meaning of Section 368(a) of the Internal Revenue Code of 1986, as amended (the “Code”) and the Treasury Regulations, with respect to which each of
Passage, Merger Sub, Merger Sub II and Remix are a “party to a reorganization” under Section 368(b) of the Code, and this Agreement, taken together with the Remix Exchange Agreement, is intended to constitute a “plan of
reorganization” for purposes of Sections 354, 361 and 368 of the Code and within the meaning of Section 368 of the Code and Treasury Regulations Section 1.368-2(g) (the “Intended Tax Treatment”).
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1.1
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Definitions.
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(i)
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any merger, consolidation, amalgamation, share exchange, business combination, issuance of securities, acquisition of
securities, reorganization, recapitalization, tender offer, exchange offer or other similar transaction: (A) in which a Party is a constituent entity, (B) in which a Person or “group” (as defined in the Exchange Act and the rules
promulgated thereunder) of Persons directly or indirectly acquires beneficial or record ownership of securities representing more than 20% of the outstanding securities of any class of voting securities of a Party or any of its
Subsidiaries or (C) in which a Party or any of its Subsidiaries issues securities representing more than 20% of the outstanding securities of any class of voting securities of such Party or any of its Subsidiaries; or
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(ii)
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any sale, lease, exchange, transfer, license, acquisition or disposition of any business or businesses or assets that
constitute or account for 20% or more of the consolidated book value or the fair market value of the assets of a Party and its Subsidiaries, taken as a whole.
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(ii)
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Each of the following terms is defined in the Section set forth opposite such term:
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Term
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Section
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A&R Execution Date
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Preamble
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Access Exceptions
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5.3(a)
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Access Exception Efforts
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5.3(b)
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Accounting Firm
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2.8(e)
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Agreement
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Preamble
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Allocation Certificate
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5.22
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Amended and Restated Agreement
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Preamble
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Amended and Restated Passage Charter
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2.3(c)
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Anticipated Closing Date
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2.8(a)
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Assumed Option
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2.4(h)
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Capitalization Date
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3.6(a)
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Cash Determination Time
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2.8(a)
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Certificate of Merger
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2.1
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Certificates of Merger
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2.1(b)
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Closing
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2.2
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Closing Date
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2.2
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Code
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Recitals
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Costs
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5.15(a)
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CVR
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2.5(a)
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CVR Agreement
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2.5(a)
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CVR Fees
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2.5(b)
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D&O Indemnified Parties
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5.15(a)
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D&O tail policy
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5.15(d)
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Delivery Date
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2.8(a)
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Dispute Notice
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2.8(b)
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Disqualifying Event
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4.22
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Drug Regulatory Agency
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3.14(c)
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Effective Time
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2.1
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Exchange Agent
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2.7(a)
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FDA
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3.14(c)
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FDCA
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3.14(c)
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Term
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Section
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Final Passage Net Cash
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2.8(c)
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First Merger
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Recitals
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Form S-4
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5.7(a)
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Information Statement
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5.8(a)
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Initial Certificate of Merger
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2.1(a)
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Initial Effective Time
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2.1(a)
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Intended Tax Treatment
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Recitals
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Legacy Assets
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5.6(a)
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Legacy Asset Disposition
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5.6(a)
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Liability
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3.9
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Merger Sub
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Preamble
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Merger Sub II
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Preamble
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Merger Sub II Member Approval
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Recitals
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Merger Subs
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Preamble
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Merger Sub Approvals
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Recitals
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Merger Sub Board
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Recitals
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Mergers
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Recitals
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Nasdaq Issuance Proposal
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Recitals
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Nasdaq Listing Application
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5.17
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Ordinary Course Agreement
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3.16(f)
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Original Execution Date
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Preamble
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Original Merger Agreement
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Preamble
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Outside Date
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8.1(b)
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Passage
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Preamble
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Passage Board
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Recitals
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Passage Board Adverse Recommendation Change
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5.9(b)
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Passage Board Recommendation
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5.9(b)
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Passage Certifications
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4.7(a)
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|
Passage Charter Amendment Proposal
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Recitals
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Passage Closing Certificate
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6.2(d)
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|
Passage Common Stock
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4.6(a)
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Passage Designee
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5.19(a)(i)
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Passage Disclosure Schedule
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Article IV
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Passage IT Systems
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4.23(b)
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Passage Lock-Up Agreements
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Recitals
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Passage Material Contract
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4.13(a)
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Passage Net Cash Calculation
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2.8(a)
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Passage Net Cash Schedule
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2.8(a)
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Passage Permits
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4.14(b)
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Passage Preferred Stock
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4.6(a)
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Passage Privacy Policies
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4.23(a)
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Passage Product Candidates
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4.14(d)
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Passage Real Estate Leases
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4.11
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Passage Regulatory Permits
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4.14(d)
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Passage Stockholder Matters
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5.9(a)
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Passage Stockholder Meeting
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5.9(a)
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Passage Stockholder Support Agreement
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Recitals
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Passage 401(k) Plan
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|
5.28
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PHSA
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|
3.14(c)
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Pre-Closing Distribution
|
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2.5(a)
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Term
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Section
|
|
Pre-Closing Period
|
|
|
5.1
|
|
Proxy Statement
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|
|
5.7(a)
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Registration Statement
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5.7(a)
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Remix
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Preamble
|
|
Remix Board
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Recitals
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Remix Board Adverse Recommendation Change
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5.8(c)
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Remix Board Recommendation
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|
5.8(c)
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|
Remix Certification
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|
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3.7(a)
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|
Remix Charter Amendment
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|
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Recitals
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|
Remix Closing Certificate
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|
|
6.3(d)
|
|
Remix Convertible Notes Conversion
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|
|
2.4(a)
|
|
Remix Disclosure Schedule
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Article III
|
|
Remix Financial Statements
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|
|
3.7(a)
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|
Remix IT Systems
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3.22(b)
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|
Remix Lock-Up Agreements
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|
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Recitals
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Remix Material Contract
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|
|
3.13(a)
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|
Remix Permits
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3.14(b)
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|
Remix Note Purchase Agreement (2026)
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|
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Recitals
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|
Remix Preferred Stock Conversion
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2.4(b)
|
|
Remix Privacy Policies
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3.22(a)
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|
Remix Product Candidates
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3.14(d)
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|
Remix Real Estate Leases
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3.11
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Remix Regulatory Permits
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3.14(d)
|
|
Remix Stockholder Consent Solicitation Materials
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|
|
5.8(a)
|
|
Remix Stockholder Support Agreement
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|
|
Recitals
|
|
Remix Stockholder Written Consents
|
|
|
Recitals
|
|
Remix Unaudited Balance Sheet
|
|
|
3.7(a)
|
|
Remix Unaudited Financial Statements
|
|
|
3.7(a)
|
|
Required Passage Stockholder Vote
|
|
|
4.4
|
|
Required Remix Stockholder Vote
|
|
|
3.4
|
|
Response Date
|
|
|
2.8(b)
|
|
Reverse Stock Split Proposal
|
|
|
5.9(a)
|
|
RSU Withholding Amount
|
|
|
5.13
|
|
Second Merger
|
|
|
Recitals
|
|
Spun-Off Plan
|
|
|
5.28
|
|
Subscription Agreement
|
|
|
Recitals
|
|
Surviving Company
|
|
|
2.1(b)
|
|
Surviving Corporation
|
|
|
2.1(a)
|
|
Transfer Tax
|
|
|
5.16(a)
|
|
|
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|
|
1.2
|
Other Definitional and Interpretative Provisions.
|
|
(a)
|
The words “hereof,” “herein” and “hereunder” and words of like import used in this Agreement shall refer to this Agreement
as a whole and not to any particular provision of this Agreement. The captions herein are included for convenience of reference only and shall be ignored in the construction or interpretation hereof. References to Sections, Exhibits
and Schedules are to Sections, Exhibits and Schedules of this Agreement unless otherwise specified. Any capitalized terms used in any Exhibit or Schedule but not otherwise defined therein shall have the meaning as defined in this
Agreement. Any singular term in this Agreement shall be deemed to include the plural, and any plural term the singular, the masculine gender shall include the feminine and neuter genders; the feminine gender shall include the
masculine and neuter genders; and the neuter gender shall include the masculine and feminine genders. Whenever the words “include,” “includes” or “including” are used in this Agreement, they shall be deemed to be followed by the words
“without limitation,” whether or not they are in fact followed by those words or words of like import. The word “or”
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(b)
|
(i) All references in this Agreement to “the date hereof” or “the date of this Agreement” or “concurrently with the
execution and delivery of this Agreement” shall refer to the Original Execution Date, (ii) the date on which the representations and warranties set forth in Article III and Article IV are made by Remix, Passage, Merger Sub or Merger
Sub II, as applicable, shall not change as a result of the execution of this Agreement and shall be made as of such dates as they were in the Original Merger Agreement and (iii) each reference to “this Agreement” or “herein” in the
representations and warranties set forth in Article III and Article IV shall refer to “the Original Merger Agreement”, in each case of (i), (ii) and (iii), unless expressly indicated otherwise in this Agreement.
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2.1
|
The Mergers.
|
|
(a)
|
Upon the terms and subject to the conditions set forth in this Agreement and subject to the applicable provisions of
Delaware Law, at the Closing, Passage and Remix shall cause Merger Sub to be merged with and into Remix, whereupon the separate existence of Merger Sub shall cease and Remix shall continue as the Surviving Corporation of the First
Merger and as a wholly owned subsidiary of Passage (the “Surviving Corporation”). At the Closing, Passage and Remix shall cause the First Merger to be consummated and effective under Delaware
Law by executing and filing with the Secretary of State of the State of Delaware a certificate of merger, satisfying the applicable requirements of Delaware Law and in a form to be mutually agreed upon by the Parties prior to the
Closing (the “Initial Certificate of Merger”). The First Merger shall become effective at the time of the filing of such Initial Certificate of Merger and the acceptance by the Secretary of
State of the State of Delaware, or at such later time as may be specified in such Initial Certificate of Merger with the consent of Passage and Remix (the time as of which the First Merger becomes effective being referred to as the “Initial Effective Time”).
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(b)
|
Upon the terms and subject to the conditions set forth in this Agreement and subject to the applicable provisions of
Delaware Law, at the Closing, immediately following the Initial Effective Time, Passage shall cause the Surviving Corporation to be merged with and into Merger Sub II, whereupon the separate existence of the Surviving Corporation
shall cease and Merger Sub II shall continue as the Surviving Company of the Second Merger and as a wholly owned subsidiary of Passage (the “Surviving Company”). At the Closing, Passage shall
cause the Second Merger to be consummated and effective under Delaware Law by executing and filing with the Secretary of State of the State of Delaware a certificate of merger, satisfying the applicable requirements of Delaware Law
and in a form to be mutually agreed upon by the Parties prior to the Closing (the “Certificate of Merger” and, together with the Initial Certificate of Merger, the “Certificates of Merger”). The Second Merger shall become effective at the time of the filing of such Certificate of Merger and the acceptance by the Secretary of State of the State of Delaware, or at such later time as
may be specified in such Certificate of Merger with the consent of Passage and Remix (the time as of which the Second Merger becomes effective being referred to as the “Effective Time”).
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2.2
|
Closing. Subject to the satisfaction or waiver of the conditions set forth in this Agreement, the consummation of
the Mergers (the “Closing”) shall take place remotely, (a) no later than the second Business Day after all the conditions precedent set forth in Article VI shall have been satisfied or
waived (other than those conditions that, by their nature, are to be satisfied at the Closing (provided such conditions would be so satisfied)) or (b) at such other time, date and place as the Parties may mutually agree upon in
writing. The date on which the Closing actually takes place is referred to as the “Closing Date”.
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2.3
|
Organizational Documents; Directors and Officers.
|
|
(a)
|
Certificate of Incorporation of the Surviving Corporation. At the Initial Effective Time, the Amended and Restated
Certificate of Incorporation of Remix as in effect immediately prior to the Initial Effective Time shall be amended and restated in its entirety to read as set forth in Exhibit E, and as so amended and restated shall be the
certificate of incorporation of the Surviving Corporation until thereafter amended as provided by Delaware Law.
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|
(b)
|
Bylaws of the Surviving Corporation. Passage and Remix shall take all actions necessary so that, at the Initial
Effective Time, the bylaws of Merger Sub, as in effect immediately prior to the Initial Effective Time, shall become the bylaws of the Surviving Corporation (with the name of Remix Operations, Inc. as the Surviving Corporation’s name)
until thereafter amended in accordance with Delaware Law and as provided in the Surviving Corporation’s Organizational Documents.
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|
(c)
|
Certificate of Incorporation of Passage. At the Initial Effective Time, Passage shall file an amended and restated
certificate of incorporation to (i) change the name of Passage to “Remix Therapeutics, Inc.,” (ii) if Passage and Remix mutually agree to complete the Reverse Stock Split, effect the Reverse Stock Split and (iii) make such other
changes as shall be mutually agreed upon by Passage and Remix and adopted at the Passage Stockholder Meeting (the certificate of incorporation, as amended and restated, the “Amended and Restated
Passage Charter”).
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|
(d)
|
Bylaws of Passage. At the Effective Time, Passage and the Passage Board shall take all actions necessary to amend
and restate its Amended and Restated Bylaws in the form agreed to by Passage and Remix.
|
|
(e)
|
Directors and Officers. The directors and officers, each to hold office in accordance with the provisions of
Delaware Law and the Surviving Corporation’s Organizational Documents immediately after the Initial Effective Time, shall be as set forth in Section 5.19.
|
|
(f)
|
Certificate of Formation of the Surviving Company. At the Effective Time, the Certificate of Formation of Merger Sub
II as in effect immediately prior to the Initial Effective Time shall be the certificate of formation of Merger Sub II as in effect immediately prior to the Effective Time, except that the Surviving Company shall be renamed “Remix
Operations, LLC.”
|
|
(g)
|
Limited Liability Company Agreement of the Surviving Company. At the Effective Time, the Limited Liability Company
Agreement of Merger Sub II as in effect immediately prior to the Initial Effective Time shall be amended and restated in its entirety to read as set forth in Exhibit F, and as so amended and restated shall be the Limited Liability
Company Agreement of the Surviving Company until thereafter amended as provided by Delaware Law.
|
|
(h)
|
Directors and Officers of the Surviving Company. The directors and officers of the Surviving Corporation shall be
the managers and officers of the Surviving Company, each to hold office in accordance with the provisions of Delaware Law and the Surviving Company’s Organizational Documents immediately after the Effective Time.
|
|
2.4
|
Conversion of Remix Convertible Notes; Effect on Shares; Treatment of Remix Options and Remix Warrants.
|
|
(a)
|
All Remix Convertible Notes shall be converted into shares of Remix Common Stock or Remix Warrants as of immediately prior
to the Initial Effective Time in accordance with, and pursuant to the terms and conditions of, the Remix Convertible Notes (the “Remix Convertible Notes Conversion”).
|
|
(b)
|
All Remix Preferred Stock shall be converted into shares of Remix Common Stock as of immediately prior to the Initial
Effective Time in accordance with, and pursuant to the terms and conditions of, the Organizational Documents of Remix (the “Remix Preferred Stock Conversion”).
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(c)
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At the Initial Effective Time (after giving effect to the Remix Preferred Stock Conversion and the Remix Convertible Notes
Conversion), by virtue of the First Merger and without any further action on the part of Passage, Merger Sub, Remix or any stockholder of Remix, subject to Section 2.4(e), the Remix Common Stock outstanding immediately prior
to the Initial Effective Time (excluding (i) Remix Common Stock issued in the Concurrent Financing, (ii) Remix Common Stock held by Remix as treasury stock or by Passage or any of its direct or indirect subsidiaries as of immediately
prior to the Initial Effective Time (“Remix Treasury Shares”) and (iii) Dissenting Remix Shares) shall be converted solely into the right to receive a number of shares of Passage Common Stock
equal to the amount of Remix Merger Shares multiplied by the applicable stockholder’s percentage interest in Remix Outstanding Shares as set forth on the Allocation Certificate and, if any such Remix Common Stock is unvested or is
subject to a repurchase option or a risk of forfeiture under any applicable restricted stock, restricted stock unit award agreement or other similar agreement with Remix, then the shares of Passage Common Stock issued in exchange for
such Remix Common Stock will to the same extent be unvested and subject to the same repurchase option or risk of forfeiture.
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(d)
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At the Initial Effective Time, by virtue of the First Merger and without further action on the part of Passage, Merger Sub,
Remix or any stockholder of Remix, (i) subject to Section 2.4(e), the Remix Common Stock issued in the Concurrent Financing shall be converted solely into the right to receive a number of shares of Passage Common Stock equal
to the amount of Concurrent Financing Merger Shares multiplied by the percentage of the Concurrent Financing Proceeds represented by the applicable stockholder’s investment in the Concurrent Financing, as set forth on the Allocation
Certificate and (ii) the Remix Treasury Shares will automatically be cancelled and extinguished without any conversion thereof or consideration paid therefor.
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(e)
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No fractional shares of Passage Common Stock shall be issued in connection with the First Merger, and no certificates or
scrip for any such fractional shares shall be issued, with no cash being paid for any fractional share eliminated by such rounding. Any fractional shares of Passage Common Stock a holder of Remix Common Stock would otherwise be
entitled to receive shall be aggregated together first prior to eliminating any remaining fractional share.
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(f)
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At the Initial Effective Time, by virtue of the First Merger and without any further action on the part of Passage, Merger
Sub, Remix or any stockholder of Remix, each share of common stock, $0.001 par value per share, of Merger Sub issued and outstanding immediately prior to the Initial Effective Time shall be converted into and exchanged for one validly
issued, fully paid and nonassessable share of common stock, $0.0001 par value per share, of the Surviving Corporation. If applicable, each stock certificate of Merger Sub evidencing ownership of any such shares shall, as of the
Initial Effective Time, evidence ownership of such shares of common stock of the Surviving Corporation until presented for transfer or exchange.
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(g)
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If, between the date of this Agreement and the Initial Effective Time, the outstanding Remix Common Stock or Passage Common
Stock shall have been changed into, or exchanged for, a different number of shares or a different class, by reason of any stock dividend, subdivision, reclassification, recapitalization, split, combination (including the effects of
the Reverse Stock Split and the filing the Amended and Restated Passage Charter, to the extent the effects of the Reverse Stock Split and the effects of filing the Amended and Restated Passage Charter have not previously been taken
into account in calculating the Remix Merger Shares) or exchange of shares or other like change, Remix Merger Shares shall, to the extent necessary, be
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(h)
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Each Remix Option outstanding immediately prior to the Initial Effective Time and held by a Remix Service Provider shall
automatically without any further action on the part of Passage, Merger Sub, Remix or any holder of a Remix Option, be converted, at the Initial Effective Time, into an option (an “Assumed Option”)
to acquire, on the same terms and conditions (including the same vesting and exercisability terms and conditions) as were applicable under the Remix Equity Plan and option agreement applicable to such Remix Option immediately prior to
the Initial Effective Time, the number of shares of Passage Common Stock determined by multiplying the number of shares of Remix Common Stock subject to such Remix Option immediately prior to the Initial Effective Time by the Remix
Exchange Ratio, rounding down to the nearest whole number of shares, at a per share exercise price determined by dividing the per share exercise price of such Remix Option immediately prior to the Initial Effective Time by the Remix
Exchange Ratio, rounding up to the nearest whole cent; provided that the conversion of the Remix Options will be made in a manner consistent with Treasury Regulations Section 1.424-1, such
that the conversion will not constitute a “modification” of such Remix Options for purposes of Section 409A or Section 424 of the Code. As of the Initial Effective Time, Passage will assume the Remix Equity Plan.
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(i)
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At the Initial Effective Time, by virtue of the First Merger, and without any further action on the part of Passage, Merger
Sub, Remix or any holder of a Remix Warrant, each Remix Warrant that is issued and outstanding as of immediately prior to the Initial Effective Time shall cease to represent a right to acquire shares of Remix Common Stock and shall be
converted solely into a warrant to purchase shares of Passage Common Stock (an “Assumed Warrant”), on the same terms and conditions (including any vesting provisions and any provisions providing
for accelerated vesting upon certain events) as were applicable under such Assumed Warrant as of immediately prior to the Initial Effective Time. The number of shares of Passage Common Stock subject to each such Assumed Warrant shall
be equal to the amount of Remix Merger Shares multiplied by the applicable stockholder’s percentage interest in Remix Outstanding Shares as set forth on the Allocation Certificate, and such Assumed Warrant shall have an exercise price
per share as set forth on the Allocation Certificate.
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(j)
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As soon as reasonably practicable following the Closing Date (but in no event later than five (5) Business Days after
Passage first becomes eligible to use Form S-8 for the assumed Remix Options), Passage will file an appropriate registration statement on Form S-8 (or such other appropriate form, if required) with respect to the offering of the
shares of Passage Common Stock issuable upon the exercise of the assumed Remix Options and will use reasonable best efforts to maintain the effectiveness of registration statement thereafter for so long as any of such Remix Options
remain outstanding.
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(k)
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At the Effective Time, by virtue of the Second Merger and without any further action on the part of Passage, Merger Sub II
or the Surviving Corporation, each share of common stock, $0.0001 par value per share, of the Surviving Corporation issued and outstanding immediately prior to the Effective Time will automatically be cancelled and extinguished
without any conversion thereof or consideration paid therefor.
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(l)
|
At the Effective Time, by virtue of the Second Merger and without any further action on the part of Passage, Merger Sub II
or the Surviving Corporation, each membership interest of Merger Sub II issued and outstanding immediately prior to the Effective Time shall be converted into and exchanged for one membership interest of the Surviving Company.
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2.5
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Contingent Value Right.
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(a)
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Prior to the Initial Effective Time, Passage shall declare a distribution (the “Pre-Closing
Distribution”) of contingent value rights (each, a “CVR”) to the holders of record of Passage Common Stock as of the record date for the Pre-Closing Distribution. Each such holder shall
be entitled to receive one CVR for each outstanding share of Passage Common Stock held by such holder as of such date (less applicable withholding Taxes). Each CVR shall represent the right to receive contingent payments upon the
occurrence of certain events set forth in, and subject to and in accordance with the terms and conditions of, the Contingent Value Rights Agreement in the form attached hereto as Exhibit G, to be entered into between
Passage and Computershare Trust Company, N.A. (or such other nationally recognized rights agent agreed to between Passage and Remix) (the “Rights Agent”), with such revisions thereto requested
by the Rights Agent that are not, individually or in the aggregate, materially detrimental to the holders of CVRs and reasonably acceptable to Passage and Remix (the “CVR Agreement”). The record
date for the Pre-Closing Distribution shall be the close of business on the last Business Day prior to the day on which the Initial Effective Time occurs and the payment date for the Pre-Closing Distribution shall be three (3)
Business Days after the Initial Effective Time; provided that the payment of such distribution may be conditioned upon the occurrence of the Initial Effective Time. In connection with the
Pre-Closing Distribution, Passage shall cause the CVR Agreement to be duly authorized, executed and delivered by Passage and the Exchange Agent.
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(b)
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Passage agrees to pay all costs and fees associated with any action contemplated by this Section 2.5 (the “CVR Fees”).
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2.6
|
Closing of Remix’s Transfer Books. At the Initial Effective Time: (a) all Remix Common Stock outstanding immediately
prior to the Initial Effective Time shall be treated in accordance with Section 2.4(c) and Section 2.4(d), as applicable, and all holders of certificates representing Remix Common Stock that were outstanding
immediately prior to the Initial Effective Time shall cease to have any rights as stockholders of Remix (other than the right to receive Remix Merger Shares or, in the case of Dissenting Remix Shares, the rights pursuant to Section 2.11)
and (b) the stock transfer books of Remix shall be closed with respect to all Remix Common Stock outstanding immediately prior to the Initial Effective Time. No further transfer of any such Remix Common Stock shall be made on such
stock transfer books after the Initial Effective Time.
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2.7
|
Surrender of Remix Common Stock.
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(a)
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On or prior to the Closing Date, Passage and Remix shall jointly select a reputable bank, transfer agent or trust company
to act as exchange agent in the First Merger (the “Exchange Agent”). At the Initial Effective Time, Passage shall deposit with the Exchange Agent evidence of book-entry shares representing the
shares of Passage Common Stock issuable pursuant to Section 2.4(c) and Section 2.4(d), as applicable, in exchange for Remix Common Stock.
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(b)
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Promptly after the Initial Effective Time, the Parties shall cause the Exchange Agent to mail to the Persons who were
record holders of Remix Common Stock that were converted into the right to receive Remix Merger Shares: (i) a letter of transmittal in customary form and containing such provisions as Passage may reasonably specify and (ii)
instructions for effecting the surrender of Remix Common Stock in exchange for book-entry shares of Passage Common Stock. Upon delivery of a duly executed letter of transmittal and such other documents as may be reasonably required by
the Exchange Agent or Passage, the holder of such Remix Common Stock shall be entitled to receive in exchange therefor book-entry shares representing Remix Merger Shares (in a number of whole shares of Passage Common Stock) that such
holder has the right to receive pursuant to the provisions of Section 2.4(c) and Section 2.4(d), as applicable.
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(c)
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No dividends or other distributions declared or made with respect to Passage Common Stock with a record date after the
Initial Effective Time shall be paid to the holder of any Remix Common Stock with respect to the shares of Passage Common Stock that such holder has the right to receive in the First Merger until such holder delivers a duly executed
letter of transmittal (at which time (or, if later, on the applicable payment date) such holder shall be entitled, subject to the effect of applicable abandoned property, escheat or similar Laws, to receive all such dividends and
distributions, without interest).
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(d)
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Any shares of Passage Common Stock deposited with the Exchange Agent that remain undistributed to holders of Remix Common
Stock as of the date that is 180 days after the Closing Date shall be delivered to
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(e)
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No Party shall be liable to any holder of any Remix Common Stock or to any other Person with respect to any shares of
Passage Common Stock (or dividends or distributions with respect thereto) or for any cash amounts delivered to any public official pursuant to any applicable abandoned property Law, escheat Law or similar Law.
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2.8
|
Calculation of Net Cash.
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(a)
|
Not less than ten (10) Business Days prior to the anticipated date for Closing as mutually agreed to in good faith by
Passage and Remix (the “Anticipated Closing Date”), Passage will deliver to Remix a schedule (the “Passage Net Cash Schedule”, and the date of delivery of
the Passage Net Cash Schedule, the “Delivery Date”) setting forth, in reasonable detail, Passage’s good faith, estimated calculation of Passage Net Cash (the “Passage
Net Cash Calculation”) as of the close of business on the Closing Date (the “Cash Determination Time”) prepared and certified by Passage’s chief financial officer (or if there is no
chief financial officer at such time, the principal financial and accounting officer for Passage). Passage shall make available to Remix (electronically to the greatest extent possible), as reasonably requested by Remix, the work
papers and back-up materials used or useful in preparing the Passage Net Cash Schedule (including, with respect to Transaction Expenses, estimated final invoices and current accounts receivable from each advisor to Passage) and, if
reasonably requested by Remix, Passage’s accountants and counsel at reasonable times and upon reasonable notice. The Passage Net Cash Calculation shall include Passage’s determination, as of the Cash Determination Time, of the defined
terms in Section 1.1 necessary to calculate Remix Merger Shares. Set forth on Section 2.8(a) of the Passage Disclosure Schedule is an illustrative example of a Passage Net Cash calculation calculated on a hypothetical
basis as of the date described therein.
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(b)
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Within five (5) Business Days after the Delivery Date (the last day of such period, the “Response
Date”), Remix shall have the right to dispute any part of the Passage Net Cash Calculation by delivering a written notice to that effect to Passage (a “Dispute Notice”). Any Dispute
Notice shall identify in reasonable detail, to the extent known, the nature and amounts of any proposed revisions to the Passage Net Cash Calculation.
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(c)
|
If, on or prior to the Response Date, Remix notifies Passage in writing that it has no objections to the Passage Net Cash
Calculation or, if prior to 5:00 p.m. (New York City time) on the Response Date, Remix has failed to deliver a Dispute Notice as provided in Section 2.8(b), then the Passage Net Cash Calculation as set forth in the Passage Net
Cash Schedule shall be deemed to have been finally determined for purposes of this Agreement and to represent the Passage Net Cash at the Cash Determination Time (the “Final Passage Net Cash”)
for purposes of this Agreement.
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(d)
|
If Remix delivers a Dispute Notice on or prior to 5:00 p.m. (New York City time) on the Response Date, then Representatives
of Passage and Remix shall promptly, and in no event later than one calendar day after the Response Date, meet and attempt in good faith to resolve the disputed item(s) and negotiate an agreed-upon determination of Passage Net Cash,
which agreed upon Passage Net Cash amount shall be deemed to have been finally determined for purposes of this Agreement and to represent the Final Passage Net Cash for purposes of this Agreement.
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(e)
|
If Representatives of Passage and Remix are unable to negotiate an agreed-upon determination of Final Passage Net Cash
pursuant to Section 2.8(d) within two (2) calendar days after delivery of the Dispute Notice (or such other period as Passage and Remix may mutually agree upon), then any remaining disagreements as to the calculation of
Passage Net Cash shall be referred to an independent auditor of recognized national standing jointly selected by Passage and Remix or another independent auditor of recognized national standing mutually agreed upon by Passage and
Remix (the “Accounting Firm”). Passage shall promptly deliver to the Accounting Firm all work papers and back-up materials used in preparing the Passage Net Cash Schedule, and Passage and Remix
shall use commercially reasonable efforts to cause the Accounting Firm to make its determination within five (5) calendar days of accepting its selection. Passage and Remix shall be afforded the opportunity to present to the
Accounting Firm any material related to the unresolved disputes and to discuss the issues with the Accounting Firm; provided, however, that no such
presentation or discussion shall occur without the presence of a Representative of each of Passage and Remix. The determination of the
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2.9
|
Further Action. If, at any time after the Initial Effective Time, any further action is determined by the Surviving
Company to be necessary or desirable to carry out the purposes of this Agreement or to vest the Surviving Company with full right, title and possession of and to all rights and property of Remix, then the officers and managers of the
Surviving Company shall be fully authorized, and shall use their commercially reasonable efforts (in the name of Remix, in the name of Merger Sub, in the name of Merger Sub II, in the name of the Surviving Corporation, in the name of
the Surviving Company and otherwise) to take such action.
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2.10
|
Withholding. Each of the Exchange Agent, Passage and the Surviving Corporation and any other applicable withholding
agent (each, a “Withholding Agent”) shall be entitled to deduct and withhold from any consideration deliverable pursuant to this Agreement (including the Pre-Closing Distribution) such amounts
as are required to be deducted or withheld from such consideration under the Code or under any other applicable Law; provided, however, that if a
Withholding Agent determines that any payment in connection with the Contemplated Transactions is subject to deduction and/or withholding, then, except with respect to compensatory payments, the Pre-Closing Distribution or as a result
of a failure to deliver the certificate described in Section 5.16(b), such Withholding Agent shall use commercially reasonable efforts to (i) provide reasonable advance notice to such recipient of any required deduction or
withholding and (ii) reasonably cooperate with such recipient to reduce or eliminate any such deduction and/or withholding. To the extent such amounts are so deducted or withheld, such amounts shall be (i) timely remitted to the
appropriate Governmental Authority, and (ii) treated for all purposes under this Agreement as having been paid to the Person to whom such amounts would otherwise have been paid.
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2.11
|
Statutory Rights of Appraisal.
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(a)
|
Notwithstanding anything to the contrary set forth in this Agreement, if required by Delaware Law (but only to the extent
required thereby), all shares of Remix Common Stock that are issued and outstanding as of immediately prior to the Initial Effective Time (other than the Remix Treasury Shares) and held by any Person (or beneficially owned by a
“beneficial owner” of shares of Remix Common Stock held either in a voting trust or by a nominee on behalf of the beneficial owner) who has neither voted in favor of the First Merger nor consented thereto in writing and who is
entitled to demand and has properly and validly exercised their statutory rights of appraisal in respect of such shares of Remix Common Stock in accordance with Section 262 of Delaware Law (collectively, the “Dissenting Remix Shares”) will not be converted into, or represent the right to receive, the shares of Passage Common Stock that such holder has the right to receive in the First Merger pursuant to Section 2.4.
Holders or beneficial owners of Dissenting Remix Shares will be entitled to receive payment of the appraised value of such Dissenting Remix Shares in accordance with the provisions of Section 262 of Delaware Law (it being understood
and acknowledged that such Dissenting Remix Shares shall no longer be outstanding, shall automatically be cancelled and shall cease to exist, and such holder or beneficial owner shall cease to have any rights with respect thereto
other than the right to receive the appraised value of such Dissenting Remix Shares to the extent afforded by Section 262 of Delaware Law), except that all Dissenting Remix Shares held or beneficially owned by any Person who shall
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(b)
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Remix will give Passage prompt notice of any demands for appraisal received by Remix, withdrawals of such demands and any
other instruments served pursuant to Delaware Law and received by Remix in respect of Dissenting Remix Shares or otherwise asserting any dissenters’ rights or rights of appraisal in respect of Remix Common Stock.
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3.1
|
Due Organization; Subsidiaries.
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(a)
|
Remix is a corporation or other legal entity duly incorporated or otherwise organized, validly existing and in good
standing under the Laws of the jurisdiction of its incorporation or organization and has all necessary power and authority: (i) to conduct its business in the manner in which its business is currently being conducted, (ii) to own or
lease and use its property and assets in the manner in which its property and assets are currently owned or leased and used and (iii) to perform its obligations under all Contracts by which it is bound.
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(b)
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Each of Remix and its Subsidiaries is licensed and qualified to do business, and is in good standing (to the extent
applicable in such jurisdiction), under the Laws of all jurisdictions where the nature of its business and the manner in which its business is currently being conducted requires such licensing or qualification other than in
jurisdictions where the failure to be so qualified individually or in the aggregate would not be reasonably expected to have a Remix Material Adverse Effect.
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(c)
|
Except as set forth on Section 3.1(c) of the Remix Disclosure Schedule, Remix has no Subsidiaries and Remix does
not directly or indirectly own any capital stock of, or any equity ownership or profit sharing interest of any nature in, or control, directly or indirectly, any other Entity. Remix is not and has not otherwise been, directly or
indirectly, a party to, member of or participant in any partnership, joint venture or similar business entity. Remix has not agreed and is not obligated to make, nor is Remix bound by any Contract under which it may become obligated
to make, any future investment in or capital contribution to any other Entity. Remix has not, at any time, been a general partner of, and has not otherwise been liable for any of the debts or other obligations of, any general
partnership, limited partnership or other Entity.
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3.2
|
Organizational Documents. Remix has delivered to Passage accurate and complete copies of Remix’s Organizational
Documents. Remix is not in breach or violation of its Organizational Documents in any material respect.
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3.3
|
Authority; Binding Nature of Agreement. Remix has all necessary corporate power and authority to enter into and,
subject to obtaining the Required Remix Stockholder Vote, to perform its obligations under this Agreement and to consummate the Contemplated Transactions. The Remix Board (at meetings duly called and held) has (a) determined that the
Contemplated Transactions are fair to, advisable and in the best interests of Remix and its stockholders, (b) approved and declared advisable this Agreement and the Contemplated Transactions and (c) determined to recommend the Remix
Board Recommendation to the stockholders of Remix. This Agreement has been duly executed and delivered by Remix and assuming the due authorization, execution and delivery by Passage and the Merger Subs, constitutes the legal, valid
and binding obligation of Remix, enforceable against Remix in accordance with its terms, subject to the Enforceability Exceptions. The representations and warranties of Remix set forth in this Section 3.3 shall apply mutatis mutandis with respect to the Original Merger Agreement and this Amended and Restated Agreement, except that with respect to the Original Merger Agreement, such representations and
warranties shall be made as of the Original Execution Date and with respect to this Amended and Restated Agreement, such representations and warranties shall be made as of the A&R Execution Date.
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3.4
|
Vote Required. The affirmative vote of the holders of at least (i) a majority in voting power of the shares of Remix
Capital Stock outstanding on the record date and (ii) a majority in voting power of the shares of Remix Preferred Stock, voting together as a single class on an as-converted basis, outstanding on the record date (together, the “Required Remix Stockholder Vote”), is the only vote of the holders of any class or series of Remix Capital Stock necessary to adopt and approve this
Agreement and approve the Contemplated Transactions. The representations and warranties of Remix set forth in this Section 3.4 shall apply mutatis mutandis with respect to the Original Merger
Agreement and this Amended and Restated Agreement, except that with respect to the Original Merger Agreement, such representations and warranties shall be made as of the Original Execution Date and with respect to this Amended and
Restated Agreement, such representations and warranties shall be made as of the A&R Execution Date.
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3.5
|
Non-Contravention; Consents.
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|
(a)
|
Subject to obtaining the Required Remix Stockholder Vote and the filing of the Certificates of Merger and the Remix Charter
Amendment as required by Delaware Law, neither (x) the execution, delivery or performance of this Agreement by Remix, nor (y) the consummation of the Contemplated Transactions, will directly or indirectly (with or without notice or
lapse of time):
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(i)
|
contravene, conflict with or result in a violation of any of the provisions of the Organizational Documents of Remix or its
Subsidiaries;
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(ii)
|
contravene, conflict with or result in a material violation of, or give any Governmental Authority or other Person the
right to challenge the Contemplated Transactions or to exercise any remedy or obtain any relief under, any Law or any Order to which Remix or its Subsidiaries, or any of the assets owned or used by Remix or its Subsidiaries, is
subject;
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(iii)
|
contravene, conflict with or result in a material violation of any of the terms or requirements of, or give any
Governmental Authority the right to revoke, withdraw, suspend, cancel, terminate or modify, any Governmental Authorization that is held by Remix or its Subsidiaries or that otherwise relates to the business of Remix, or any of the
assets owned, leased or used by Remix;
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(iv)
|
contravene, conflict with or result in a violation or breach of, or result in a default under, any provision of any Remix
Material Contract, or give any Person the right to: (A) declare a default or exercise any remedy under any Remix Material Contract, (B) any material payment, rebate, chargeback, penalty or change in delivery schedule under any such
Remix Material Contract, (C) accelerate the maturity or performance of any Remix Material Contract or (D) cancel, terminate or modify any term of any Remix Material Contract, except in the case of any nonmaterial breach, default,
penalty or modification; or
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(v)
|
result in the imposition or creation of any Encumbrance upon or with respect to any asset owned or used by Remix or its
Subsidiaries (except for Permitted Encumbrances).
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(b)
|
Except for (i) any Consent set forth on Section 3.5(a) of the Remix Disclosure Schedule under any Remix Contract,
(ii) the Required Remix Stockholder Vote, (iii) the filing of the Certificates of Merger and the Remix Charter Amendment with the Secretary of State of the State of Delaware pursuant to Delaware Law, (iv) any filing that may be
required under the HSR Act and any other applicable Antitrust Laws or competition, investment or similar Laws and (v) such consents, waivers, approvals, orders, authorizations, registrations, declarations and filings as may be
required under applicable federal and state securities laws, neither Remix nor any of its Subsidiaries was, is or will be required to make any filing with or give any notice to, or to obtain any Consent from, any Person in connection
with (x) the execution, delivery or performance of this Agreement or (y) the consummation of the Contemplated Transactions.
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(c)
|
The Remix Board has taken and will take all actions necessary to ensure that the restrictions applicable to business
combinations contained in Section 203 of Delaware Law are, and will be, inapplicable to the execution, delivery and performance of this Agreement and to the consummation of the Contemplated Transactions. No other state takeover
statute or similar Law applies or purports to apply to the Mergers, this Agreement or any of the other Contemplated Transactions.
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(d)
|
The representations and warranties of Remix set forth in this Section 3.5 shall apply mutatis
mutandis with respect to the Original Merger Agreement and this Amended and Restated Agreement, except that with
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3.6
|
Capitalization.
|
|
(a)
|
The authorized capital stock of Remix consists of (i) 162,000,000 shares of Remix Common Stock, of which 7,833,976 shares
have been issued and are outstanding as of the close of business on June 22, 2026 (the “Capitalization Date”), and (ii) 124,133,326 shares of Remix Preferred Stock, of which (A) 17,964,705
shares have been designated Remix Series Seed Preferred Stock, all of which shares have been issued and are outstanding as of the Capitalization Date, (B) 35,714,365 shares have been designated Remix Series A Preferred Stock, of which
35,661,683 shares have been issued and are outstanding as of the Capitalization Date and (C) 70,454,256 shares have been designated Remix Series B Preferred Stock, of which 64,509,877 shares have been issued and are outstanding as of
the Capitalization Date. After giving effect to the transactions contemplated by the Remix Exchange Agreement, the authorized capital stock of Remix consists of (i) 162,000,000 shares of Remix Common Stock, of which 5,164,455 shares
have been issued and are outstanding as of the close of business on the A&R Execution Date, and (ii) 124,133,326 shares of Remix Preferred Stock, of which (A) 17,964,705 shares have been designated Remix Series Seed Preferred
Stock, 7,657,924 of which shares have been issued and are outstanding as of the A&R Execution Date, (B) 35,714,365 shares have been designated Remix Series A Preferred Stock, of which 9,765,185 shares have been issued and are
outstanding as of the A&R Execution Date and (C) 70,454,256 shares have been designated Remix Series B Preferred Stock, of which 16,258,272 shares have been issued and are outstanding as of the A&R Execution Date. Remix does
not hold any shares of its capital stock in its treasury as of the Capitalization Date. Since the Capitalization Date through the Original Execution Date, other than in connection with the settlement or exercise, as applicable, of
Remix Options outstanding as of the Capitalization Date and included in Section 3.6(c) of the Remix Disclosure Schedule, neither Remix nor any of its Subsidiaries has issued any shares of capital stock or other securities of
Remix. Each share of Remix Preferred Stock is convertible into one share of Remix Common Stock. There are no declared or accrued but unpaid dividends with respect to any shares of the Remix Capital Stock and Remix has never declared
or paid any dividend or other distribution.
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(b)
|
All of the outstanding shares of Remix Capital Stock have been duly authorized and validly issued, are fully paid and
nonassessable and are free of any Encumbrances other than under applicable securities Laws. None of the outstanding shares of Remix Capital Stock is entitled or subject to any preemptive right, right of participation, right of
maintenance or any similar right. None of the outstanding shares of Remix Capital Stock is subject to any right of first refusal in favor of Remix. Except as contemplated herein, there is no Remix Contract relating to the voting or
registration of, or restricting any Person from purchasing, selling, pledging or otherwise disposing of (or granting any option or similar right with respect to), any shares of Remix Capital Stock. Remix is not under any obligation,
nor is Remix bound by any Contract pursuant to which it may become obligated, to repurchase, redeem or otherwise acquire any outstanding shares of Remix Capital Stock or other securities. Section 3.6(b) of the Remix Disclosure
Schedule accurately and completely describes all repurchase rights held by Remix with respect to shares of Remix Capital Stock (including shares issued pursuant to the exercise of stock options) and specifies which of those repurchase
rights are currently exercisable. The shares of Remix Capital Stock are uncertificated.
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(c)
|
Except for the Remix Equity Plan and the Remix Options granted thereunder, Remix does not have any stock incentive plan or
any other plan, program, agreement or arrangement providing for any equity or equity-based compensation for any Person and there were no other equity or equity-based awards outstanding as of the Original Execution Date. As of the
Original Execution Date, Remix has reserved 23,696,650 shares of Remix Common Stock for issuance under the Remix Equity Plan, of which 260,796 shares of Remix Common Stock have been issued and are outstanding pursuant to restricted
stock purchase agreements, 1,976,340 shares of Remix Common Stock have been issued and are outstanding pursuant to the exercise of Remix Options, 17,638,267 shares of Remix Common Stock are subject to outstanding Remix Options, and
3,821,247 shares of Remix Common Stock remain available for future grant pursuant to the Remix Equity Plan. Section 3.6(c) of the Remix Disclosure Schedule sets forth a true and complete list, as of the Original Execution
Date, of each outstanding Remix Option, including: (i) the name of the holder, (ii) the number of shares of Remix Common Stock subject to such Remix Option, (iii) the exercise price of each Remix Option, (iv) the date on
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(d)
|
Except as set forth on Section 3.6(c) of the Remix Disclosure Schedule, as of the Capitalization Date and A&R
Execution Date there is no: (i) outstanding subscription, option, call, warrant or right (whether or not currently exercisable) to acquire any shares of the capital stock or other securities of Remix, (ii) outstanding security,
instrument or obligation that is or may become convertible into or exchangeable for any shares of the capital stock or other securities of Remix, (iii) stockholder rights plan (or similar plan commonly referred to as a “poison pill”)
or Contract under which Remix is or may become obligated to sell or otherwise issue any shares of its capital stock or any other securities or (iv) condition or circumstance that may give rise to or provide a basis for the assertion
of a claim by any Person to the effect that such Person is entitled to acquire or receive any shares of capital stock or other securities of Remix.
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(e)
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All outstanding shares of Remix Capital Stock, Remix Options, Remix Warrants, Remix Convertible Notes and other securities
of Remix have been issued and granted in compliance with (i) all applicable securities laws and other applicable Law and (ii) all requirements set forth in applicable Contracts.
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3.7
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Financial Statements.
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(a)
|
Section 3.7(a) of the Remix Disclosure Schedule includes true and complete copies of (i) the Remix Balance Sheet and
the related audited statement of income, cash flow and changes in stockholders’ equity for the year ended December 31, 2024 (the “Remix Audited Financial Statements”), (ii) Remix’s unaudited
balance sheet and the related unaudited statement of income, cash flow and changes in stockholders’ equity for the year ended December 31, 2025 (the “Remix Unaudited Financial Statements”), and
(iii) Remix’s unaudited balance sheet (the “Remix Unaudited Balance Sheet”) and the related unaudited statement of income, cash flow and changes in stockholders’ equity for the three (3) months
ended March 31, 2026 (the “Remix Interim Financial Statements” and collectively, with the Remix Audited Financial Statements and the Remix Unaudited Financial Statements, the “Remix Financial Statements”).
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(b)
|
The Remix Financial Statements (i) were prepared in accordance with GAAP (except (x) as may be indicated in the notes
thereto, (y) the Remix Unaudited Financial Statements and the Remix Interim Financial Statements may not contain all footnotes required by GAAP, and (z) the Remix Interim Financial Statements are subject to normal and recurring
year-end adjustments that are not reasonably expected to be material in amount) applied on a consistent basis unless otherwise noted therein throughout the periods indicated and (ii) fairly present, in all material respects, the
financial position of Remix as of the respective dates thereof and the results of operations and cash flows of Remix for the periods covered thereby. The Remix Audited Financial Statements required by applicable Law to be included in
the Registration Statement shall, when delivered by Remix for inclusion in the Registration Statement for filing with the SEC following the date of this Agreement in accordance with Section 5.7, comply in all material respects
with the applicable accounting requirements and with the rules and regulations of the SEC, the Exchange Act and the Securities Act applicable to a registrant, in effect as of the respective dates thereof. Other than as expressly
disclosed in the Remix Financial Statements, there has been no material change in Remix’s accounting methods or principles that would be required to be disclosed in Remix’s financial statements in accordance with GAAP. The books of
account and other financial records of Remix and each of its Subsidiaries are true and complete in all material respects.
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(c)
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There have been no formal internal investigations regarding financial reporting or accounting policies and practices
discussed with, reviewed by or initiated at the direction of the chief executive officer, chief financial officer, or general counsel of Remix, the Remix Board or any committee thereof, other than ordinary course audits or reviews of
accounting policies and practices or internal controls.
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(d)
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Remix and its Subsidiaries maintain a system of internal accounting controls designed to provide reasonable assurance that
(i) transactions are executed in accordance with management’s general or specific authorizations, (ii) transactions are recorded as necessary to permit preparation of the financial statements of
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(e)
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Remix’s auditor has at all times since the date of enactment of the Sarbanes-Oxley Act been: (i) a registered public
accounting firm (as defined in Section 2(a)(12) of the Sarbanes-Oxley Act), (ii) to the Knowledge of Remix, “independent” with respect to Remix within the meaning of Regulation S-X under the Exchange Act and (iii) to the Knowledge of
Remix, in compliance with subsections (g) through (l) of Section 10A of the Exchange Act and the rules and regulations promulgated by the SEC and the Public Company Accounting Oversight Board thereunder.
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3.8
|
Absence of Changes. Except as set forth on Section 3.8 of the Remix Disclosure Schedule, since January 1,
2025, Remix and its Subsidiaries have conducted their business only in the Ordinary Course of Business (except for the execution and performance of this Agreement and the discussions, negotiations and transactions related thereto) and
there has not been any (a) Remix Material Adverse Effect or (b) action, event or occurrence that would have required the consent of Passage pursuant to Sections 5.1(a), 5.1(c), 5.1(e), 5.1(k), 5.1(l),
5.1(m), 5.1(n), and 5.1(p) (only with respect to the foregoing Sections) of this Agreement had such action, event or occurrence taken place after the execution and delivery of this Agreement.
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3.9
|
Absence of Undisclosed Liabilities. Neither Remix nor any of its Subsidiaries has any liability, indebtedness,
obligation, expense, claim, deficiency, guaranty or endorsement of any kind, whether accrued, absolute, contingent, matured, unmatured or otherwise (each a “Liability”), in each case, of a type
required to be reflected or reserved for on a balance sheet prepared in accordance with GAAP, except for: (a) Liabilities disclosed, reflected or reserved against in the Remix Unaudited Balance Sheet, (b) normal and recurring current
Liabilities that have been incurred by Remix or its Subsidiaries since the date of the Remix Unaudited Balance Sheet in the Ordinary Course of Business (none of which relates to any breach of contract, breach of warranty, tort,
infringement, or violation of Law), (c) Liabilities for performance of obligations of Remix or any of its Subsidiaries under Remix Contracts, (d) Liabilities incurred in connection with the Contemplated Transactions and the
Subscription Agreement and (e) Liabilities described in Section 3.9 of the Remix Disclosure Schedule.
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3.10
|
Title to Assets. Each of Remix and its Subsidiaries has good and valid title to, or, in the case of leased
properties and assets, valid leasehold interests in, all tangible properties or tangible assets and equipment used or held for use in its business or operations or purported to be owned by it, including: (a) all tangible assets
reflected on the Remix Unaudited Balance Sheet and (b) all other tangible assets reflected in the books and records of Remix as being owned by Remix. All of such assets are owned or, in the case of leased assets, leased by Remix or
any of its Subsidiaries free and clear of any Encumbrances, other than Permitted Encumbrances.
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3.11
|
Real Property; Leasehold. Neither Remix nor any of its Subsidiaries owns or has ever owned any real property, nor is
Remix or any of its Subsidiaries party to any agreement to purchase or sell any real property. Remix has made available to Passage (a) an accurate and complete list of all real properties with respect to which Remix directly or
indirectly holds a valid leasehold interest as well as any other real estate that is in the possession of or leased by Remix or any of its Subsidiaries and (b) copies of all leases under which any such real property is possessed (the
“Remix Real Estate Leases”), each of which is in full force and effect, with no existing material default thereunder by Remix or to the Knowledge of
Remix, the other party thereto.
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3.12
|
Intellectual Property.
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(a)
|
Section 3.12(a) of the Remix Disclosure Schedule is an accurate, true and complete listing of all Remix Registered
IP (other than domain names), including for each item the record owner (and name of any other Person with an ownership interest in such item of Remix Registered IP, if any, and the nature of such ownership interest), jurisdiction,
status, date of registration or application, and registration or application
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(b)
|
Section 3.12(b) of the Remix Disclosure Schedule accurately identifies all Remix Contracts pursuant to which any
material Remix IP Rights are licensed to Remix or any of its Subsidiaries (other than to the extent such Remix IP Rights are non-exclusively licensed and are (A) any non-customized software that (1) is licensed solely in executable or
object code form, or provided as a service, pursuant to a nonexclusive license to such software and other Intellectual Property associated with such software and (2) is not incorporated into, or material to the development,
manufacturing, or distribution of, any of Remix’s or its Subsidiaries’ products or services, (B) any Intellectual Property licensed on a nonexclusive basis ancillary to the purchase or use of services, equipment, reagents or other
materials, (C) any confidential information provided subject to confidentiality obligations, (D) proprietary information and inventions assignment agreements or consulting agreements between Remix or its Subsidiaries and their
respective employees or individual independent contractors that are substantially on Remix’s standard form thereof, (E) ancillary to a sale of products or services to customers or (F) incidental to the provision of services from
contract manufacturers, suppliers, distributors or other service providers to Remix or any of its Subsidiaries). To the Knowledge of Remix, each Remix Contract listed in Section 3.12(b) of the Remix Disclosure Schedule is in
full force and effect and constitutes a legal, valid, and binding obligation of Remix, its Subsidiaries and each other party thereto, and is enforceable against Remix, its Subsidiaries and each other party thereto in accordance with
its terms. To the Knowledge of Remix, neither Remix, its Subsidiaries, nor any other party to any Remix Contract listed in Section 3.12(b) of the Remix Disclosure Schedule has been or is, or has been or is alleged to be, in
material default under, or has provided or received any notice of breach under, or intention to terminate (including by non-renewal), any Remix Contract listed in Section 3.12(b) of the Remix Disclosure Schedule.
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(c)
|
Section 3.12(c) of the Remix Disclosure Schedule accurately identifies each Remix Contract pursuant to which any
Person other than Remix or any of its Subsidiaries has been granted any material license under, or otherwise has received or acquired any right (whether or not currently exercisable) or interest in, any Remix IP Rights (other than (i)
any confidential information provided subject to confidentiality obligations and (ii) any Remix IP Rights to the extent nonexclusively licensed to academic collaborators, suppliers or service providers for the sole purpose of enabling
such academic collaborator, supplier or service providers to provide services for Remix’s or its Subsidiaries’ benefit). To the Knowledge of Remix, each Remix Contract listed in Section 3.12(c) of the Remix Disclosure Schedule
is in full force and effect and constitutes a legal, valid, and binding obligation of Remix, its Subsidiaries and each other party thereto, and is enforceable against Remix, its Subsidiaries and each other party thereto in accordance
with its terms. Neither Remix, its Subsidiaries nor, to the Knowledge of Remix, any other party to any Remix Contract listed in Section 3.12(c) of the Remix Disclosure Schedule has provided or received any written notice or
allegation of breach under, or intention to terminate (including by non-renewal), any Remix Contract listed in Section 3.12(c) of the Remix Disclosure Schedule.
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(d)
|
Except as identified on Section 3.12(d) of the Remix Disclosure Schedule, neither Remix nor any of its Subsidiaries
is bound by, no Remix Owned IP Rights are subject to, and to the Knowledge of Remix, no Remix Licensed IP Rights that are exclusively licensed to Remix or any of its Subsidiaries are subject to (other than the rights of the applicable
licensors), any Contract containing any covenant or other provision that materially limits or restricts the ability of Remix or any of its Subsidiaries to use, exploit, assert, or enforce any Remix Registered IP anywhere in the world.
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(e)
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Remix or one of its Subsidiaries exclusively owns all right, title, and interest to and in the Remix Owned IP Rights (other
than co-owned rights identified in Section 3.12(b) of the Remix Disclosure Schedule), in each case, free and clear of any Encumbrances (other than Permitted Encumbrances).
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(f)
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(i) All documents and instruments necessary to register or apply for or renew registration of Remix Registered IP owned by
Remix or any of its Subsidiaries, and (ii) to the Knowledge of Remix, all documents and instruments necessary to register or apply for or renew registration of Remix Registered IP exclusively licensed to Remix or any of its
Subsidiaries, have been validly executed, delivered, and filed in a timely manner with the appropriate Governmental Authority. (A) Remix or its Subsidiaries have paid all renewal and
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(g)
|
Each Person who is or was an employee, contractor or consultant of Remix or any of its Subsidiaries and who is or was
involved in the creation, discovery, reduction to practice or development of any material Intellectual Property for Remix or any of its Subsidiaries has signed a valid, enforceable written agreement containing a present assignment of
all rights, title and interests in and to such Intellectual Property to Remix or such Subsidiary and confidentiality provisions protecting trade secrets and confidential information of Remix and its Subsidiaries.
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(h)
|
To the Knowledge of Remix, no current or former member, officer, director, or employee of Remix or any of its Subsidiaries
has any claim, right (whether or not currently exercisable), or interest to or in any Remix Owned IP Rights. To the Knowledge of Remix, no employee of Remix or any of its Subsidiaries is (A) bound by or otherwise subject to any
Contract restricting him or her from performing his or her duties for Remix or such Subsidiary or (B) in breach of any Contract with any former employer or other Person concerning Remix Owned IP Rights purported to be owned by Remix
or such Subsidiary or confidentiality provisions protecting trade secrets and confidential information comprising Remix Owned IP Rights purported to be owned by Remix or such Subsidiary.
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(i)
|
Except as set forth on Section 3.12(i) of the Remix Disclosure Schedule, no funding, facilities, or personnel of
any Governmental Authority were used, directly or indirectly, to develop or create, in whole or in part, any Remix Owned IP Rights, or, to the Knowledge of Remix, any Remix Licensed IP Rights that are exclusively licensed to Remix or
any of its Subsidiaries, and no educational institution has any right to, or right to royalties for, or to impose any requirement on the manufacture or commercialization of any product incorporating, any Remix Owned IP Rights, or, to
the Knowledge of Remix, any Remix Licensed IP Rights that are exclusively licensed to Remix or any of its Subsidiaries. To the Knowledge of Remix, no Governmental Authority has any right to (including any “step-in” or “march-in”
rights with respect to), ownership of, commercialization of, or right to royalties or other payments for any Remix Owned IP Rights, or, to the Knowledge of Remix, any Remix Licensed IP Rights that are exclusively licensed to Remix or
any of its Subsidiaries. Without limiting the generality of the foregoing, to the Knowledge of Remix, no invention claimed or covered by any Patent within the Remix Owned IP Rights, or, to the Knowledge of Remix, any Remix Licensed IP
Rights that are exclusively licensed to Remix or any of its Subsidiaries, (A) was conceived or reduced to practice in connection with any research activities funded, in whole or in part, by the federal government of the United States
or any agency thereof, (B) is a “subject invention” as that term is described in 35 U.S.C. Section 201(e), or (C) is otherwise subject to the provisions of the Bayh-Dole Act or any similar Law of any other jurisdiction, including with
respect to any Patents that are part of the Remix IP Rights.
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(j)
|
Remix and each of its Subsidiaries has taken reasonable steps to maintain the confidentiality of and otherwise protect,
maintain and enforce its rights in all proprietary information that Remix or such Subsidiary holds, or purports to hold, as confidential or a trade secret. To the Knowledge of Remix, neither Remix nor any of its Subsidiaries has made
any of its trade secrets or other material confidential or proprietary information that it intended to maintain as confidential information available to any other Person except pursuant to written agreements requiring such Person to
maintain the confidentiality of such trade secrets or confidential information. To the Knowledge of Remix, there have been no material security breaches, outages, violations or unauthorized access to any of the proprietary information
that Remix or any of its Subsidiaries holds, or purports to hold, as confidential or a trade secret, except as would not have, individually or in the aggregate, a Remix Material Adverse Effect.
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(k)
|
Except as set forth on Section 3.12(k) of the Remix Disclosure Schedule, neither Remix nor any of its Subsidiaries
has assigned or otherwise transferred ownership of, or agreed to assign or otherwise transfer ownership of, any Remix IP Rights to any other Person.
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(l)
|
To the Knowledge of Remix, neither Remix nor any of its Subsidiaries has taken or failed to take any action that could be
reasonably expected to result in the abandonment, invalidity, cancellation, forfeiture, relinquishing, invalidation or unenforceability of any Remix Registered IP (including with respect to any
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(m)
|
To the Knowledge of Remix, the Remix IP Rights constitute all Intellectual Property necessary for Remix and each of its
Subsidiaries to conduct its business as currently conducted or proposed to be conducted; provided, however, that the foregoing representation is not a
representation with respect to non-infringement of Intellectual Property.
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(n)
|
Remix has delivered, or made available to Passage, a complete and accurate copy of all material Remix IP Rights Agreements.
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(o)
|
To the Knowledge of Remix, the manufacture, marketing, offering for sale, sale, importation, use or intended use or other
disposal of any product under development by Remix or any of its Subsidiaries does not violate, and, since June 1, 2023, has not violated, any license or agreement between Remix or its Subsidiaries and any third party in any material
respect, and, to the Knowledge of Remix, does not violate, infringe or misappropriate, and, since June 1, 2023, has not violated, infringed or misappropriated, any valid and issued Patent or other Intellectual Property of any other
Person. To the Knowledge of Remix, no third party is violating, infringing or misappropriating or, since June 1, 2023, has violated, infringed or misappropriated any Remix IP Rights, or otherwise is breaching or, since June 1, 2023,
has breached any material Remix IP Rights Agreement.
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(p)
|
As of the date of this Agreement, neither Remix nor any of its Subsidiaries is, or, since June 1, 2023, has been, a party
to any Legal Proceeding (including, but not limited to, opposition, interference or other proceeding in any patent or other government office) contesting the validity, ownership or right to use, sell, offer for sale, license or
dispose of any Remix Registered IP. None of the Remix Owned IP Rights, and to the Knowledge of Remix, the Remix Licensed IP Rights that are exclusively licensed to Remix or any of its Subsidiaries, have been adjudged invalid or
unenforceable in whole or part, and all Remix Owned IP Rights, and to the Knowledge of Remix, all Remix Licensed IP Rights that are exclusively licensed to Remix or any of its Subsidiaries, are in full force and effect. No Patents
within the Remix Registered IP owned by Remix or any of its Subsidiaries, or to the Knowledge of Remix, no Patents within the Remix Registered IP exclusively licensed to Remix or any of its Subsidiaries, have been subject to any
interference, derivation, reexamination (including ex parte reexamination, inter partes reexamination, inter partes review, or post grant review), reissue, cancellation, opposition, claim, allegation or other action, including any
proceeding in which the scope, validity, inventorship, ownership or enforceability of any such Patent is being or has been contested or challenged. Since June 1, 2023, neither Remix nor any of its Subsidiaries have received any
written notice asserting that any Remix Registered IP or the proposed use, sale, offer for sale, license or disposition of products, methods, or processes claimed or covered thereunder infringes or misappropriates or violates the
rights of any other Person or that Remix or any of its Subsidiaries have otherwise infringed, misappropriated or otherwise violated any Intellectual Property of any Person.
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(q)
|
Except as set forth on Section 3.12(q) of the Remix Disclosure Schedule, to the Knowledge of Remix, no registered
trademark or trade name owned, used, or applied for by Remix or any of its Subsidiaries conflicts or interferes with any registered trademark or trade name owned, used, or applied for by any other Person except as would not have a
Remix Material Adverse Effect. To the Knowledge of Remix, none of the goodwill associated with or inherent in any registered trademark in which Remix or its Subsidiaries has or purports to have an ownership interest has been impaired
as determined by Remix in accordance with GAAP.
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(r)
|
Except (i) as would not have a Remix Material Adverse Effect or (ii) as contained in license, distribution or service
agreements entered into in the Ordinary Course of Business by Remix or any of its Subsidiaries, to the
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(s)
|
To the Knowledge of Remix, neither Remix nor any of its Subsidiaries is party to any Contract that, as a result of such
execution, delivery and performance of this Agreement, will (i) cause the grant, assignment, or transfer to any other third party of any license or other right to or in any Remix Registered IP, (ii) result in breach of, default under,
termination of, or acceleration or modification of such Contract with respect to any Remix Registered IP, (iii) alter, encumber, impair or extinguish, or result in any Encumbrance with respect to the right of Remix or the Surviving
Corporation and its Subsidiaries to use, sell or license or enforce any Remix Registered IP or portion thereof, or (iv) result in Remix or any of its Subsidiaries being bound by or subject to any exclusivity obligations, non-compete
or other restrictions on the operation or scope of their respective businesses, or to any obligation to grant any rights in or to any Remix Registered IP, except, in each of (i), (ii), (iii) and (iv), for the occurrence of any such
grant or impairment that would not, individually or in the aggregate, result in a Remix Material Adverse Effect.
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(t)
|
Notwithstanding any other provisions of this Agreement, Passage acknowledges and agrees that the representations and
warranties contained in this Section 3.12 are the only representations or warranties made by Remix or any of its Subsidiaries with respect to Intellectual Property, and no other provisions of this Agreement shall be
interpreted as containing any representation or warranty with respect thereto.
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3.13
|
Agreements, Contracts and Commitments.
|
|
(a)
|
Other than Excepted Contracts, Section 3.13(a) of the Remix Disclosure Schedule lists the following Remix Contracts
in effect as of the date of this Agreement, other than the Subscription Agreement (each, a “Remix Material Contract” and collectively, the “Remix Material Contracts”):
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(i)
|
each Remix Contract that is a collective bargaining agreement or other agreement or arrangement with any labor union, works
council or labor organization;
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(ii)
|
each Remix Contract for the employment or engagement of any individual on an employee, consulting or other basis that
provides for annual base compensation in excess of $500,000;
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(iii)
|
each Remix Contract with any Remix Associate that provides for retention, change in control, transaction or other similar
payments or benefits, whether or not payable as a result of the Contemplated Transactions;
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(iv)
|
each Remix Contract relating to any agreement of indemnification or guaranty not entered into in the Ordinary Course of
Business;
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(v)
|
each Remix Contract containing (A) any covenant limiting the freedom of Remix or any of its Subsidiaries or the Surviving
Corporation to engage in any line of business or compete with any Person, or limiting the development, manufacture, or distribution of Remix’s or any of its Subsidiaries’ products or services, (B) any most-favored pricing arrangement,
(C) any exclusivity provision or (D) any non-solicitation provision (excluding such provisions to the extent they provide for non-solicitation of employees, consultants or individual independent contractors);
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(vi)
|
each Remix Contract (A) pursuant to which any Person granted Remix or any of its Subsidiaries an exclusive license under
any Intellectual Property, (B) pursuant to which Remix or any of its Subsidiaries granted any Person an exclusive license to any Remix IP Rights or (C) that is or should be listed in Section 3.12(b) or 3.12(c) of the Remix Disclosure
Schedule;
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(vii)
|
each Remix Contract relating to capital expenditures and requiring payments after the date of this Agreement in excess of
$1,000,000 in the aggregate pursuant to its express terms and not cancelable without penalty;
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(viii)
|
each Remix Contract relating to the disposition or acquisition of material assets or any ownership interest in any Entity,
in each case, involving payments in excess of $1,000,000 in the aggregate after the date of this Agreement;
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(ix)
|
each Remix Contract relating to any mortgages, indentures, loans, notes or credit agreements, security agreements or other
agreements or instruments relating to the borrowing of money or extension of credit in excess of $500,000 individually or in excess of $1,000,000 in the aggregate, or creating any material Encumbrances with respect to any assets of
Remix or any of its Subsidiaries or any loans or debt obligations with officers or directors of Remix or any of its Subsidiaries;
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(x)
|
each Remix Contract that is: (A) a distribution agreement that contains any exclusivity provision, (B) an agreement
involving provision of services or products with respect to any pre-clinical or clinical development activities of Remix or any of its Subsidiaries requiring payment by or to Remix or any of its Subsidiaries after the date of this
Agreement in excess of $500,000 pursuant to its express terms, (C) a dealer, distributor, joint marketing, alliance, joint venture, cooperation, development or other agreement currently in force under which Remix or any of its
Subsidiaries has continuing obligations to develop or market any product, technology or service, or any agreement pursuant to which Remix or any of its Subsidiaries has continuing obligations to develop any Intellectual Property that
will not be owned, in whole or in part, by Remix or such Subsidiary or (D) a Contract containing a license under any patent, trademark registration, service mark registration, trade name or copyright registration to or from any third
party to manufacture or produce any product, service or technology of Remix or any of its Subsidiaries (except to the extent such license is granted by Remix or any of its Subsidiaries to its service providers for provision of goods
or services to Remix or any of its Subsidiaries) or any Contract to sell, distribute or commercialize any products or service of Remix or any of its Subsidiaries, in each case of clause (D), except for Remix Contracts entered into in
the Ordinary Course of Business;
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(xi)
|
each Remix Contract with any Person, including any financial advisor, broker, finder, investment banker or other Person,
providing advisory services to Remix or any of its Subsidiaries in connection with the Contemplated Transactions;
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|
(xii)
|
each Remix Contract to which Remix or any of its Subsidiaries is a party or by which any of their assets and properties is
currently bound, which involves annual obligations of payment by, or annual payments to, Remix or such Subsidiary in excess of $500,000;
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(xiii)
|
a Remix Real Estate Lease;
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(xiv)
|
a Contract disclosed in or required to be disclosed in Section 3.12(a) or Section 3.12(b) of the Remix
Disclosure Schedule; or
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(xv)
|
any other Remix Contract that is not terminable at will (with no penalty or payment) by Remix or any of its Subsidiaries,
and (A) which involves payment or receipt by Remix or such Subsidiary after the date of this Agreement under any such agreement, contract or commitment of more than $1,000,000 in the aggregate, or obligations after the date of this
Agreement in excess of $1,000,000 in the aggregate or (B) that is material to the business or operations of Remix and its Subsidiaries taken as a whole.
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(b)
|
Remix has delivered or made available to Passage accurate and complete copies of all Remix Material Contracts, including
all amendments thereto. There are no Remix Material Contracts that are not in written form. Neither Remix nor any of its Subsidiaries has, nor to the Knowledge of Remix, as of the date of this Agreement, has any other party to a Remix
Material Contract, breached, violated or defaulted under, or received notice that it breached, violated or defaulted under, any of the terms or conditions of any such Remix Material Contract in such manner as would permit any party to
cancel or terminate any such Remix Material Contract, or would permit any party to seek material damages thereunder. As to Remix and its Subsidiaries, as of the date of this Agreement, each Remix Material Contract is valid, binding,
enforceable and in full force and effect, subject to the Enforceability Exceptions. No Person is renegotiating, or has a right pursuant to the terms of any Remix Material Contract to change, any material amount paid or payable to
Remix or any of its Subsidiaries under any Remix Material Contract or any other material term or provision of any Remix Material Contract.
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3.14
|
Compliance; Permits; Restrictions.
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|
(a)
|
Remix and each of its Subsidiaries is, and since June 1, 2023 has been, in material compliance with all applicable Laws. No
investigation, claim, suit, proceeding, audit, Order, or other action by any Governmental Authority is pending or, to the Knowledge of Remix, threatened against Remix or any of its Subsidiaries. There is no agreement or Order binding
upon Remix or any of its Subsidiaries which (i) could reasonably be expected to have the effect of prohibiting or materially impairing any business practice of Remix or any of its Subsidiaries, any acquisition of material property by
Remix or any of its Subsidiaries or the conduct of business by Remix or any of its Subsidiaries as currently conducted, (ii) is reasonably likely to have an adverse effect on Remix’s ability to comply with or perform any covenant or
obligation under this Agreement or (iii) is reasonably likely to have the effect of preventing, delaying, making illegal or otherwise interfering with the Contemplated Transactions.
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(b)
|
Each of Remix and its Subsidiaries holds all required Governmental Authorizations that are material to the operation of the
business of Remix as currently conducted (collectively, the “Remix Permits”). Section 3.14(b) of the
Remix Disclosure Schedule identifies each such Remix Permit. Each of Remix and its Subsidiaries is in material compliance with the terms of such Remix Permits. No Legal Proceeding is pending or, to the Knowledge of Remix, threatened,
which seeks to revoke, substantially limit, suspend, or materially modify any Remix Permit.
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(c)
|
There are no Legal Proceedings pending or, to the Knowledge of Remix, threatened in writing with respect to an alleged
material violation by Remix or any of its Subsidiaries of the Federal Food, Drug, and Cosmetic Act (21 U.S.C. § 301 et seq.) and the rules and regulations promulgated by the United States Food and Drug Administration (“FDA”) thereunder (the “FDCA”), similar Laws promulgated by any other Governmental Authority responsible for regulation of the research, development, testing,
manufacturing, packaging, processing, storage, labeling, sale, marketing, advertising, distribution and importation or exportation of drug products (“Drug Regulatory Agency”).
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(d)
|
Each of Remix and its Subsidiaries holds all required material Governmental Authorizations issuable by any Drug Regulatory
Agency necessary for the conduct of the business of Remix as currently conducted, and, as applicable, for the research, development, testing, manufacturing, packaging, processing, storage, labeling, sale, marketing, advertising,
distribution and importation or exportation, in each case as currently conducted, of any of its product candidates (the “Remix Product Candidates”) (collectively, the “Remix Regulatory Permits”) and since June 1, 2023, no
such Remix Regulatory Permit has been (i) revoked, withdrawn, suspended, cancelled or terminated or (ii) modified in any material, adverse manner. Since June 1, 2023, Remix has maintained and is in compliance in all material respects
with the terms of such Remix Regulatory Permits and neither Remix nor any of its Subsidiaries has, since June 1, 2023, received any written notice or other written communication from any Drug Regulatory Agency regarding (A) any
material violation of or failure to comply materially with any term or requirement of any Remix Regulatory Permit or (B) any revocation, withdrawal, suspension, cancellation, termination or material modification of any Remix
Regulatory Permit.
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(e)
|
All clinical, pre-clinical and other studies and tests conducted by or on behalf of, or sponsored by, Remix or its
Subsidiaries, in which Remix or its Subsidiaries or their respective product candidates, including the Remix Product Candidates, have participated (collectively, “Remix Studies”), were and, if
still pending, are being conducted in compliance in all material respects with any applicable regulations of the Drug Regulatory Agencies and other applicable Law to which such Remix Studies are or were subject, including, without
limitation, 21 C.F.R. Parts 50, 54, 56, 58 and 312. Neither Remix nor any of its Subsidiaries has received any written notices, correspondence, or other communications from any Drug Regulatory Agency requiring, or, to the Knowledge of
Remix, any action to place a clinical hold order on, or otherwise terminate, delay, or suspend any such Remix Studies, other than ordinary course communications regarding the design and implementation of such Remix Studies.
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(f)
|
Neither Remix nor any of its Subsidiaries, nor, to the Knowledge of Remix, any contract manufacturer with respect to any
Remix Product Candidate, is the subject of any pending or, to the Knowledge of Remix, threatened investigation in respect of its business or products by the FDA pursuant to its “Fraud, Untrue Statements of Material Facts, Bribery, and
Illegal Gratuities” Final Policy set forth in 56 Fed. Reg. 46191 (September 10, 1991) and any amendments thereto (the “Application Integrity Policy”), or any other
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(g)
|
All manufacturing operations conducted by, or to the Knowledge of Remix, for the benefit of, Remix or its Subsidiaries in
connection with any Remix Product Candidate, since June 1, 2023, have been and are being conducted in compliance in all material respects with applicable Laws, including the FDCA, and to the extent applicable, the respective
counterparts thereof promulgated by Governmental Authorities in countries outside the United States.
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(h)
|
None of Remix, its Subsidiaries, or, to the Knowledge of Remix, any manufacturing site of a contract manufacturer, in each
case with respect to such parties’ or such site’s activities conducted with respect to any Remix Product Candidate, (i) is subject to a Drug Regulatory Agency shutdown or import or export prohibition or (ii) has since June 1, 2023
received any unresolved Form FDA 483, notice of violation, warning letter, untitled letter, or similar correspondence or notice from the FDA or other Governmental Authority alleging or asserting material noncompliance with any
applicable Law, and, to the Knowledge of Remix, neither the FDA nor any other Governmental Authority has threatened such action.
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3.15
|
Legal Proceedings; Orders.
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|
(a)
|
There is no pending Legal Proceeding and, to the Knowledge of Remix, no Person has threatened in writing to commence any
Legal Proceeding: (i) that involves Remix or any of its Subsidiaries or any Remix Associate (in his or her capacity as such) or any of the material assets owned or used by Remix or any of its Subsidiaries or (ii) that challenges, or
that may have the effect of preventing, delaying, making illegal or otherwise interfering with, the Contemplated Transactions.
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(b)
|
There is no Order to which Remix or any of its Subsidiaries, or any of the material assets owned or used by Remix or any of
its Subsidiaries, is subject. To the Knowledge of Remix, no officer or other Key Employee of Remix or any of its Subsidiaries is subject to any Order that prohibits such officer or employee from engaging in or continuing any conduct,
activity or practice relating to the business of Remix or any of its Subsidiaries or to any material assets owned or used by Remix or any of its Subsidiaries.
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3.16
|
Tax Matters.
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|
(a)
|
Each of Remix and each of its Subsidiaries has timely filed all income Tax Returns and all other material Tax Returns that
were required to be filed by or with respect to it under applicable Law. All such Tax Returns were correct and complete in all material respects and have been prepared in substantial compliance with all applicable Law. Subject to
exceptions as would not be material, no claim has ever been made by a Governmental Authority in a jurisdiction where Remix or any of its Subsidiaries does not file a particular type of Tax Return that Remix or any of its Subsidiaries
is subject to taxation by that jurisdiction that would require the filing of such a Tax Return.
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|
(b)
|
All material amounts of Taxes due and owing by Remix and each of its Subsidiaries (whether or not shown on any Tax Return)
have been timely paid. The unpaid Taxes of Remix and each of its Subsidiaries for periods (or portions thereof) ending on or prior to the date of the Remix Unaudited Balance Sheet do not materially exceed the accruals for current
Taxes set forth on the Remix Unaudited Balance Sheet.
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|
(c)
|
Each of Remix and each of its Subsidiaries has withheld and paid to the appropriate Governmental Authority all material
Taxes required to have been withheld and paid in connection with any amounts paid or owing to any employee, independent contractor, creditor, stockholder, or other third party.
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(d)
|
There are no Encumbrances for material Taxes (other than Encumbrances described in clause (i) of the definition of
“Permitted Encumbrances”) upon any of the assets of Remix or any of its Subsidiaries.
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|
(e)
|
No deficiencies for a material amount of Taxes with respect to Remix or any of its Subsidiaries have been claimed, proposed
or assessed by any Governmental Authority in writing that have not been timely paid in full. There are no pending (or, based on written notice, threatened) material audits, assessments, examinations or other actions for or relating to
any Liability in respect of Taxes of Remix or any of its Subsidiaries. Neither Remix nor any of its Subsidiaries has waived any statute of limitations in respect of material Taxes or agreed to any extension of time with respect to a
material Tax assessment or deficiency.
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|
(f)
|
Neither Remix nor any of its Subsidiaries has been a United States real property holding corporation within the meaning of
Section 897(c)(2) of the Code during the applicable period specified in Section 897(c)(1)(A)(ii) of the Code.
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|
(g)
|
Neither Remix nor any of its Subsidiaries is a party to any material Tax allocation, Tax sharing or similar agreement
(including indemnity arrangements), other than customary indemnification provisions in commercial Contracts entered into in the Ordinary Course of Business that do not relate primarily to Tax (an “Ordinary
Course Agreement”).
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(h)
|
Neither Remix nor any of its Subsidiaries has been a member of an affiliated group filing a consolidated U.S. federal
income Tax Return (other than a group the common parent of which is Remix). Neither Remix nor any of its Subsidiaries has any material Liability for the Taxes of any Person (other than Remix) under Treasury Regulations
Section 1.1502-6 (or any similar provision of state, local, or foreign law), as a transferee or successor, or by Contract (other than an Ordinary Course Agreement).
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|
(i)
|
Neither Remix nor any of its Subsidiaries has been a party to any joint venture, partnership, or other arrangement that is
treated as a partnership for U.S. federal income Tax purposes.
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|
(j)
|
Neither Remix nor any of its Subsidiaries has a permanent establishment (within the meaning of an applicable Tax treaty) or
other office or fixed place of business in a country other than the country in which it is organized.
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(k)
|
Neither Remix nor any of its Subsidiaries has distributed stock of another Person, or has had its stock distributed by
another Person, in a transaction that was purported or intended to be governed in whole or in part by Section 355 of the Code or Section 361 of the Code.
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|
(l)
|
Neither Remix nor any of its Subsidiaries has entered into any transaction identified as a “listed transaction” for
purposes of Treasury Regulations Section 1.6011-4(b)(2).
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|
(m)
|
Neither Remix nor any of its Subsidiaries will be required to include any material item of income or gain in, or exclude
any material item of deduction or loss from, taxable income for any taxable period (or portion thereof) ending after the Closing Date as a result of any: (i) change in, or use of improper, method of accounting for a taxable period
ending on or prior to the Closing Date; (ii) “closing agreement” as described in Section 7121 of the Code (or any corresponding or similar provision of state, local or foreign income Tax law) executed on or prior to the Closing Date;
(iii) installment sale or open transaction disposition made on or prior to the Closing Date; (iv) prepaid amount, advance payments or deferred revenue received or accrued on or prior to the Closing Date; (v) intercompany transaction
or excess loss amount described in Treasury Regulations under Section 1502 of the Code (or any corresponding or similar provision of state, local or foreign income Tax Law); or (vi) application of Section 367(d) of the Code to any
transfer of intangible property on or prior to the Closing Date. Remix has not made any election under Section 965(h) of the Code.
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|
(n)
|
Section 3.16(n) of the Remix Disclosure Schedule sets forth the entity classification of Remix and each of its
Subsidiaries for U.S. federal income tax purposes. Neither Remix nor any of its Subsidiaries has made an election or taken any other action to change its federal and state income tax classification from such existing classification.
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(o)
|
Neither Remix nor any of its Subsidiaries has taken or knowingly failed to take any action, nor to the Knowledge of Remix,
are there any facts or circumstances, in each case, that would reasonably be expected to prevent or impede the Mergers from qualifying for the Intended Tax Treatment.
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3.17
|
Employee and Labor Matters; Benefit Plans.
|
|
(a)
|
Section 3.17(a) of the Remix Disclosure Schedule contains a complete and accurate list of all Remix employees as of
the date of this Agreement, setting forth for each employee: job title; classification as exempt or non-exempt for wage and hour purposes; annual base salary, hourly rate or other rates of compensation; bonus potential; full-time or
part-time status; date of hire; business location; status (i.e., active or inactive and if inactive, the type of leave and estimated duration); and any visa or work permit status and the date of expiration, if applicable.
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(b)
|
Section 3.17(b) of the Remix Disclosure Schedule contains a complete and accurate list as of the date hereof of all
of the independent contractors, consultants, temporary employees, leased employees or other agents employed or used by Remix and classified by Remix as other than employees, or compensated other than through wages paid by Remix
through Remix’s payroll department (“Remix Contingent Workers”), showing for each Remix Contingent Worker such individual’s engagement date, role in the business, work location, and fee or compensation arrangements.
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|
(c)
|
Neither Remix nor any of its Subsidiaries is a party to, bound by the terms of, or has a duty to bargain under, any
collective bargaining agreement or other Contract with a labor union, works council or labor organization representing any Remix Associate, and there are no labor unions, works council or labor organizations representing or, to the
Knowledge of Remix, purporting to represent or seeking to represent any Remix Associates, including through the filing of a petition for representation election.
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|
(d)
|
Section 3.17(d) of the Remix Disclosure Schedule lists all material Remix Employee Plans.
|
|
(e)
|
As applicable with respect to each material Remix Employee Plan, Remix has made available to Passage true and complete
copies of (i) the plan document, including all amendments thereto, and in the case of an unwritten Employee Plan, a written description of all material terms thereof, (ii) all related trust instruments or other funding-related
documents and insurance contracts, (iii) the summary plan description and each summary of material modifications thereto, (iv) the financial statements for the most recent year for which such financial statements are available (in
audited form, if available or required by ERISA) and, where applicable, annual reports with any Governmental Authority (e.g., Form 5500 and all
schedules thereto), (v) the most recent IRS determination or opinion letter, (vi) written results of any required compliance testing for the three most recent plan years, and (vii) all material, non-routine notices, filings or
correspondence during the past three years with any Governmental Authority.
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|
(f)
|
Each Remix Employee Plan that is intended to be qualified under Section 401(a) of the Code has received a favorable
determination letter or may rely on a favorable opinion letter with respect to such qualified status from the IRS to the effect that such plan is qualified under Section 401(a) of the Code and the related trust is exempt from federal
income Taxes under Section 501(a) of the Code. To the Knowledge of Remix, nothing has occurred that would reasonably be expected to cause the loss of the qualified status of any such Remix Employee Plan or the Tax exempt status of any
related trust.
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|
(g)
|
Each Remix Employee Plan has been established, maintained and operated in compliance, in all material respects, with its
terms and all applicable Laws, including, without limitation, the Code and ERISA. No Legal Proceeding (other than those relating to routine claims for benefits) is pending or, to the Knowledge of Remix, threatened with respect to any
Remix Employee Plan. All material payments and/or contributions required to have been made with respect to all Remix Employee Plans have been made in accordance with the terms of the applicable Remix Employee Plan and applicable Law
in all material respects and neither Remix nor any Remix ERISA Affiliate has any material Liability for any such unpaid contributions with respect to any Remix Employee Plan.
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|
(h)
|
Neither Remix, any of its Subsidiaries nor any of their ERISA Affiliates maintains, contributes to, is required to
contribute to or has any Liability with respect to (i) any “employee benefit plan” (within the meaning of Section 3(2) of ERISA) that is or was subject to Title IV or Section 302 of ERISA or Section 412 of the Code, (ii) a
Multiemployer Plan, (iii) any Multiple Employer Plan, or (iv) any Multiple Employer Welfare Arrangement.
|
|
(i)
|
No Remix Employee Plan provides for medical or other welfare benefits to any service provider beyond
|
|
(j)
|
No Remix Employee Plan is subject to any law of a foreign jurisdiction outside of the United States.
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|
(k)
|
Each Remix Employee Plan that constitutes in any part a nonqualified deferred compensation plan within the meaning of
Section 409A of the Code has complied in all material respects with Section 409A of the Code, to the extent applicable, and no compensation has been or would reasonably be expected to be includable in the gross income of any Remix
Associate as a result of the operation of Section 409A of the Code.
|
|
(l)
|
Remix and its Subsidiaries are, and since June 1, 2023 have been, in compliance in all material respects with all
applicable Laws respecting labor, employment and employment practices, including terms and conditions of employment, worker classification, tax withholding, unemployment compensation, workers’ compensation, prohibited discrimination,
harassment, equal employment, fair employment practices, meal and rest periods, work authorization and immigration status, employee safety and health, wages (including overtime wages), pay equity, affirmative action, restrictive
covenants, compensation, and hours of work. There are no Legal Proceedings pending or, to the Knowledge of Remix, threatened against Remix or any of its Subsidiaries relating to any labor or employment matters or any Remix Associate.
Remix is not a party to a conciliation agreement, consent decree or other agreement or Order with any federal, state, or local agency or Governmental Authority with respect to employment practices.
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|
(m)
|
Since June 1, 2023, (i) Remix has not taken any action which would constitute a “plant closing”, “collective dismissal”,
“group dismissal”, “group termination”, “mass termination”, or “mass layoff” within the meaning of the WARN Act, (ii) issued any written notification of a plant closing or mass layoff required by the WARN Act (nor has Remix or any of
its Subsidiaries been under any requirement or obligation to issue any such notification), or (iii) incurred any Liability or obligation under the WARN Act that remains unsatisfied.
|
|
(n)
|
Since June 1, 2023, there has never been, nor to the Knowledge of Remix has there been any threat of, any strike, slowdown,
work stoppage, lockout, job action, union, organizing activity, question concerning representation or any similar activity or dispute, affecting Remix or its Subsidiaries. No event has occurred within the past six (6) months, and, to
the Knowledge of Remix, no condition or circumstance exists, that would reasonably be expected to give rise to or provide a basis for the commencement of any such strike, slowdown, work stoppage, lockout, job action, union organizing
activity, question concerning representation or any similar activity or dispute.
|
|
(o)
|
There is no contract, agreement, plan or arrangement to which Remix or any of its Subsidiaries is a party or by which it is
bound to make any payment or compensate any Remix Associate for Taxes incurred pursuant to the Code, including, but not limited to, Section 4999 or Section 409A of the Code.
|
|
(p)
|
Neither the execution and delivery of this Agreement, the shareholder approval of this Agreement, nor the consummation of
the Contemplated Transactions (either alone or in conjunction with any other event, including without limitation, a termination of employment) will result in any (i) payment (including severance, forgiveness of indebtedness or
otherwise) or benefit becoming due to a Remix Associate, (ii) increase in any benefits or the compensation payable under any Remix Employee Plan, (iii) acceleration of the time of payment, funding or vesting of any such compensation
or benefits or any loan forgiveness, (iv) restriction on the right of Remix or any of its Subsidiaries or, after the consummation of Contemplated Transactions, the Surviving Corporation, to merge, amend, terminate or transfer any
Remix Employee Plan, or (v) “excess parachute payment” (within the meaning of Section 280G of the Code).
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3.18
|
Environmental Matters. Since June 1, 2023, Remix and each of its Subsidiaries has complied with all applicable
Environmental Laws, which compliance includes the possession by Remix of all permits and other Governmental Authorizations required under applicable Environmental Laws and compliance with the terms and conditions thereof, except for
any failure to be in compliance that, individually or in the aggregate, would not result in a Remix Material Adverse Effect. Neither Remix nor any of its Subsidiaries has received since June 1, 2023, any written notice or other
communication (in writing or otherwise), whether from a Governmental Authority, citizens group, employee or otherwise, that alleges that Remix or any of its Subsidiaries is not in compliance with any Environmental Law, and, to the
|
|
3.19
|
Insurance. Remix has made available to Passage accurate and complete copies of all material insurance policies and
all material self-insurance programs and arrangements relating to the business, assets, liabilities and operations of Remix and its Subsidiaries. Each of such insurance policies is in full force and effect and Remix and its
Subsidiaries are in compliance in all material respects with the terms thereof. Other than customary end of policy notifications from insurance carriers, since June 1, 2023, neither Remix nor any of its Subsidiaries has received any
notice or other communication regarding any actual or possible: (a) cancellation or invalidation of any insurance policy or (b) refusal or denial of any coverage, reservation of rights or rejection of any material claim under any
insurance policy. Each of Remix and its Subsidiaries has provided timely written notice to the appropriate insurance carrier(s) of each Legal Proceeding pending against Remix or such Subsidiary for which Remix or such Subsidiary has
insurance coverage, and no such carrier has issued a denial of coverage or a reservation of rights with respect to any such Legal Proceeding, or informed Remix of its intent to do so.
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|
3.20
|
Transactions with Affiliates. Section 3.20 of the Remix Disclosure Schedule describes any material
transactions or relationships, since June 1, 2023, between, on one hand, Remix and, on the other hand, any (a) executive officer or director of Remix or any of such executive officer’s or director’s immediate family members, (b) owner
of more than five percent of the voting power of the outstanding shares of Remix Capital Stock or (c) to the Knowledge of Remix, any “related person” (within the meaning of Item 404 of Regulation S-K under the Securities Act) of any
such officer, director or owner (other than Remix) in the case of each of (a), (b) or (c) that is of the type that would be required to be disclosed under Item 404 of Regulation S-K under the Securities Act.
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|
3.21
|
No Financial Advisors. Except as set forth on Section 3.21 of the Remix Disclosure Schedule, no broker,
finder or investment banker is entitled to any brokerage fee, finder’s fee, opinion fee, success fee, transaction fee or other fee or commission in connection with the Contemplated Transactions based upon arrangements made by or on
behalf of Remix.
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|
3.22
|
Privacy and Data Security.
|
|
(a)
|
Remix and its Subsidiaries have complied with all applicable Privacy Laws and the applicable terms of any Remix Contracts
relating to privacy, security, collection or use of Personal Information of any individuals (including clinical trial participants, patients, patient family members, caregivers or advocates, physicians and other health care
professionals, clinical trial investigators, researchers, pharmacists) that interact with Remix or any of its Subsidiaries in connection with the operation of Remix’s and its Subsidiaries’ business, except for such noncompliance as
has not had, and would not have, individually or in the aggregate, a Remix Material Adverse Effect. To the Knowledge of Remix, Remix has implemented and maintains reasonable written policies and procedures, satisfying the requirements
of applicable Privacy Laws and Remix Contracts, concerning the privacy, security, collection and use of Personal Information (the “Remix Privacy Policies”)
and has complied with the same, except for such noncompliance as has not to the Knowledge of Remix had, and would not have, individually or in the aggregate, a Remix Material Adverse Effect. To the Knowledge of Remix, as of the date
hereof, no claims have been asserted or threatened against Remix by any Person alleging a violation of Privacy Laws, Remix Privacy Policies and/or the applicable terms of any Remix Contracts relating to privacy, security, collection
or use of Personal Information of any individuals and Remix has not received written notice of any of the same. To the Knowledge of Remix, there have been no data security incidents, personal data breaches or other adverse events or
incidents related to Personal Information or Remix data in the custody or control of Remix or any service provider acting on behalf of Remix, in each case where such incident, breach or event would result in a notification obligation
to any Person under applicable law or pursuant to the terms of any Remix Contract.
|
|
(b)
|
The information technology assets and equipment of Remix and its Subsidiaries (collectively, “Remix IT Systems”) are adequate for, and operate and perform in all material respects as required in connection with the operation of the business of Remix and its Subsidiaries as currently conducted, and to the
Knowledge of Remix, free and clear of all material bugs, errors, defects, Trojan horses, time bombs, malware and other corruptants. Remix and its Subsidiaries have implemented and maintain commercially reasonable physical, technical
and administrative safeguards to protect Personal Information processed by or on behalf of Remix and its Subsidiaries, any other material confidential information and the integrity and security of Remix IT Systems used in connection
with their businesses, and during the past three years, there have been no breaches, violations, outages or unauthorized uses of or accesses to the same, except for those that have been remedied without material cost or Liability or
the duty to notify any other Person.
|
|
3.23
|
Concurrent Financing.
|
|
(a)
|
Remix has delivered to Passage true, correct and complete copies of all Contracts related to the Concurrent Financing,
including the Subscription Agreement, pursuant to which the Purchasers (as defined in the Subscription Agreement) party thereto (collectively, the “Purchasers”) have agreed, subject to the terms
and conditions set forth therein, to purchase the number of shares of Remix Common Stock and/or pre-funded warrants to purchase Remix Common Stock set forth therein in connection with the transactions contemplated by this Agreement.
The Subscription Agreement has not been amended or modified prior to the date of this Agreement and as of the date hereof, no such amendment or modification is contemplated (other than amendments or modifications that are permitted by
Section 5.26), and as of the date hereof, the respective obligations and commitments contained in the Subscription Agreement have not been withdrawn or rescinded in any respect.
|
|
(b)
|
As of the date hereof, the Subscription Agreement is in full force and effect and is the legal, valid, binding and
enforceable obligation of Remix, and, to the Knowledge of Remix, each of the Purchasers. There are no conditions precedent or other contingencies related to the funding of the full amount of the Concurrent Financing, other than as
expressly set forth in the Subscription Agreement. As of the date hereof, no event has occurred which, with or without notice, lapse of time or both, would reasonably be expected to constitute a default or breach on the part of Remix
or, to the Knowledge of Remix, any Purchaser under the Subscription Agreement. As of the date hereof, Remix has no reason to believe that any of the conditions to the Concurrent Financing as contemplated by the Subscription Agreement
will not be satisfied.
|
|
3.24
|
No Other Representations or Warranties. Remix hereby acknowledges and agrees that, except for the representations
and warranties contained in this Agreement, neither Passage nor any other person on behalf of Passage makes any express or implied representation or warranty with respect to Passage or with respect to any other information provided to
Remix, any of its stockholders or any of their respective Affiliates in connection with the Contemplated Transactions, and (subject to the express representations and warranties of Passage set forth in Article IV (in each case
as qualified and limited by the Passage Disclosure Schedule)) none of Remix, or any of its Representatives or stockholders, has relied on any such information (including the accuracy or completeness thereof). The representations and
warranties of Remix set forth in this Section 3.24 shall apply mutatis mutandis with respect to the Original Merger Agreement and this Amended and Restated Agreement, except that with respect
to the Original Merger Agreement, such representations and warranties shall be made as of the Original Execution Date and with respect to this Amended and Restated Agreement, such representations and warranties shall be made as of the
A&R Execution Date.
|
|
4.1
|
Due Organization; Subsidiaries.
|
|
(a)
|
Each of Passage and its Subsidiaries (including the Merger Subs) is a corporation or other legal entity duly incorporated
or otherwise organized, validly existing and in good standing under the Laws of the jurisdiction of its incorporation or organization and has all necessary power and authority: (i) to conduct its business in the manner in which its
business is currently being conducted, (ii) to own or lease and use its property and assets in the manner in which its property and assets are currently owned or leased and used and (iii) to perform its obligations under all Contracts
by which it is bound. Since the date of its formation, neither Merger Sub has engaged in any activities other than in connection with or as contemplated by this Agreement. All of Passage’s Subsidiaries are wholly owned by Passage.
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(b)
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Each of Passage and its Subsidiaries is licensed and qualified to do business, and is in good standing (to the extent
applicable in such jurisdiction), under the Laws of all jurisdictions where the nature of its business and the manner in which its business is currently being conducted requires such licensing or qualification other than in
jurisdictions where the failure to be so qualified individually or in the aggregate would not be reasonably expected to have a Passage Material Adverse Effect.
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(c)
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Except as set forth on Section 4.1(c) of the Passage Disclosure Schedule, Passage has no Subsidiaries other than
the Merger Subs and Passage does not directly or indirectly own any capital stock of, or any equity ownership or profit sharing interest of any nature in, or control directly or indirectly, any other Entity other than the Merger Subs.
Passage is not and has not otherwise been, directly or indirectly, a party to, member of or participant in any partnership, joint venture or similar business entity. Passage has not agreed and is not obligated to make, nor is Passage
bound by any Contract under which it may become obligated to make, any future investment in or capital contribution to any other Entity. Passage has not, at any time, been a general partner of, and has not otherwise been liable for
any of the debts or other obligations of, any general partnership, limited partnership or other Entity.
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4.2
|
Organizational Documents. Passage has delivered to Remix accurate and complete copies of the Organizational
Documents of Passage and the Merger Subs. Neither Passage nor Merger Sub is in breach or violation of its Organizational Documents in any material respect.
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4.3
|
Authority; Binding Nature of Agreement. Each of Passage, Merger Sub and Merger Sub II has all necessary corporate
power and authority to enter into and, subject to receiving the Required Passage Stockholder Vote and the effectiveness of the Merger Sub Approvals, to perform its obligations under this Agreement and to consummate the Contemplated
Transactions. The Passage Board (at meetings duly called and held) has (a) determined that the Contemplated Transactions are fair to, advisable and in the best interests of Passage and its stockholders, (b) approved and declared
advisable this Agreement and the Contemplated Transactions, including the issuance of shares of Passage Common Stock to the stockholders of Remix pursuant to the terms of this Agreement and (c) determined to recommend the Passage
Board Recommendation to the stockholders of Passage. The Merger Sub Board (by unanimous written consent) has: (x) determined that the Contemplated Transactions are fair to, advisable, and in the best interests of Merger Sub and its
sole stockholder, (y) deemed advisable and approved this Agreement and the Contemplated Transactions and (z) determined to recommend, upon the terms and subject to the conditions set forth in this Agreement, that the sole stockholder
of Merger Sub vote to adopt this Agreement and thereby approve the Contemplated Transactions. The sole member of Merger Sub II has: (I) determined that the Contemplated Transactions are fair to, advisable, and in the best interests of
Merger Sub II and its sole member, (II) deemed advisable and approved this Agreement and the Contemplated Transactions and (III) adopted this Agreement and thereby approved the Contemplated Transactions. This Agreement has been duly
executed and delivered by Passage and each Merger Sub and, assuming the due authorization, execution and delivery by Remix, constitutes the legal, valid and binding obligation of Passage and each Merger Sub, enforceable against each
of Passage, Merger Sub and Merger Sub II in accordance with its terms, subject to the Enforceability Exceptions. The representations and warranties of Passage set forth in this Section 4.3 shall apply mutatis mutandis with respect to the Original Merger Agreement and this Amended and Restated Agreement, except that with
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4.4
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Vote Required. The affirmative votes of (a) holders of a majority of the votes cast for or against the Nasdaq
Issuance Proposal and (b) holders of a majority of the voting power of the outstanding shares of Passage Common Stock entitled to vote on the adoption of the Amended and Restated Passage Charter, in each case, at the Passage
Stockholder Meeting are the only votes of the holders of any class or series of Passage Common Stock necessary to approve this Agreement and the Contemplated Transactions, including the issuance of the Remix Merger Shares to the
stockholders of Remix in the First Merger and the adoption of the Amended and Restated Passage Charter (such vote, the “Required Passage Stockholder Vote”). The representations and warranties of
Passage set forth in this Section 4.4 shall apply mutatis mutandis with respect to the Original Merger Agreement and this Amended and Restated Agreement, except that with respect to the
Original Merger Agreement, such representations and warranties shall be made as of the Original Execution Date and with respect to this Amended and Restated Agreement, such representations and warranties shall be made as of the
A&R Execution Date.
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4.5
|
Non-Contravention; Consents.
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(a)
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Subject to obtaining the Required Passage Stockholder Vote, the effectiveness of the Merger Sub Approvals and the filing of
the Certificates of Merger and the Amended and Restated Passage Charter as required by Delaware Law, neither (x) the execution, delivery or performance of this Agreement by Passage or the Merger Subs, nor (y) the consummation of the
Contemplated Transactions, will directly or indirectly (with or without notice or lapse of time):
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(i)
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contravene, conflict with or result in a violation of any of the provisions of the Organizational Documents of Passage or
its Subsidiaries;
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(ii)
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contravene, conflict with or result in a material violation of, or give any Governmental Authority or other Person the
right to challenge the Contemplated Transactions or to exercise any remedy or obtain any relief under, any Law or any Order to which Passage or its Subsidiaries, or any of the assets owned or used by Passage or its Subsidiaries, is
subject;
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(iii)
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contravene, conflict with or result in a material violation of any of the terms or requirements of, or give any
Governmental Authority the right to revoke, withdraw, suspend, cancel, terminate or modify, any Governmental Authorization that is held by Passage or its Subsidiaries or that otherwise relates to the business of Passage, or any of the
assets owned, leased or used by Passage;
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(iv)
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contravene, conflict with or result in a violation or breach of, or result in a default under, any provision of any Passage
Material Contract, or give any Person the right to: (A) declare a default or exercise any remedy under any Passage Material Contract, (B) any material payment, rebate, chargeback, penalty or change in delivery schedule under any such
Passage Material Contract, (C) accelerate the maturity or performance of any Passage Material Contract or (D) cancel, terminate or modify any term of any Passage Material Contract, except in the case of any nonmaterial breach,
default, penalty or modification; or
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(v)
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result in the imposition or creation of any Encumbrance upon or with respect to any asset owned or used by Passage or its
Subsidiaries (except for Permitted Encumbrances).
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(b)
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Except for (i) any Consent set forth on Section 4.5 of the Passage Disclosure Schedule under any Passage Contract,
(ii) the Required Passage Stockholder Vote, (iii) the filing of the Certificates of Merger and the Amended and Restated Passage Charter with the Secretary of State of the State of Delaware pursuant to Delaware Law, (iv) any filing
that may be required under the HSR Act and any other applicable Antitrust Laws or competition, investment or similar Laws and (v) such consents, waivers, approvals, orders, authorizations, registrations, declarations and filings as
may be required under applicable federal and state securities laws, neither Passage nor any of its Subsidiaries was, is or will be required to make any filing with or give any notice to, or to obtain any Consent from, any Person in
connection with (x) the execution, delivery or performance of this Agreement or (y) the consummation of the Contemplated Transactions.
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(c)
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The Passage Board and the Merger Sub Board have taken and will take all actions necessary to ensure that the restrictions
applicable to business combinations contained in Section 203 of Delaware Law are, and will be, inapplicable to the execution, delivery and performance of this Agreement and to the consummation of the Contemplated Transactions. No
other state takeover statute or similar Law applies or purports to apply to the Mergers, this Agreement or any of the other Contemplated Transactions.
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(d)
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The representations and warranties of Passage set forth in this Section 4.5 shall apply mutatis
mutandis with respect to the Original Merger Agreement and this Amended and Restated Agreement, except that with respect to the Original Merger Agreement, such representations and warranties shall be made as of the Original
Execution Date and with respect to this Amended and Restated Agreement, such representations and warranties shall be made as of the A&R Execution Date.
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4.6
|
Capitalization.
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(a)
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The authorized capital stock of Passage consists of (i) 300,000,000 shares of common stock, par value $0.0001 per share (“Passage Common Stock”) and (ii) 10,000,000 shares of preferred stock, par value $0.0001 per share (“Passage Preferred Stock”). As of the Capitalization Date,
(x) 3,212,810 shares of Passage Common Stock were issued and outstanding and (y) 0 shares of Passage Preferred Stock were issued and outstanding. Passage does not hold any shares of its capital stock in its treasury. Since the
Capitalization Date through the date of this Agreement, other than in connection with the settlement or exercise, as applicable, of Passage Options or Passage Restricted Stock Unit Awards outstanding as of the Capitalization Date and
included in Section 4.6(c) of the Passage Disclosure Schedule, neither Passage nor any of its Subsidiaries has issued any shares of capital stock or other securities of Passage. There are no declared or accrued but unpaid
dividends with respect to any shares of the Passage Common Stock and Passage has never declared or paid any dividend or other distribution.
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(b)
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All of the outstanding shares of Passage Common Stock have been duly authorized and validly issued, and are fully paid and
nonassessable and are free of any Encumbrances other than under applicable securities Laws. None of the outstanding shares of Passage Common Stock is entitled or subject to any preemptive right, right of participation, right of
maintenance or any similar right. None of the outstanding shares of Passage Common Stock is subject to any right of first refusal in favor of Passage. Except as contemplated herein, there is no Passage Contract relating to the voting
or registration of, or restricting any Person from purchasing, selling, pledging or otherwise disposing of (or granting any option or similar right with respect to), any shares of Passage Common Stock. Passage is not under any
obligation, nor is Passage bound by any Contract pursuant to which it may become obligated, to repurchase, redeem or otherwise acquire any outstanding shares of Passage Common Stock or other securities. Section 4.6(b) of the
Passage Disclosure Schedule accurately and completely lists all repurchase rights held by Passage with respect to shares of Passage Common Stock (including shares issued pursuant to the exercise of stock options) and specifies which
of those repurchase rights are currently exercisable.
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(c)
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Except for the Passage Equity Plans and the Passage Options and Passage Restricted Stock Unit Awards granted thereunder,
Passage does not have any stock incentive plan or any other plan, program, agreement or arrangement providing for any equity or equity-based compensation for any Person and there were no other equity or equity-based awards outstanding
as of the date of this Agreement. As of the Capitalization Date, 59,103 shares of Passage Common Stock were reserved and available for purchase under the Passage ESPP, Passage has reserved 4,571,714 shares of Passage Common Stock for
issuance under the Passage Equity Plans, of which 1,530,984 shares have been issued and are outstanding pursuant to the exercise of Passage Options or settlement of Passage Restricted Stock Unit Awards, 649,384 shares are subject to
outstanding Passage Options, 20,000 shares are subject to outstanding Passage Restricted Stock Unit Awards, and 172,080 shares remain available for future grant pursuant to the Passage Equity Plans. Section 4.6(c) of the
Passage Disclosure Schedule sets forth a true and complete list, as of the Capitalization Date, of each outstanding Passage Option and Passage Restricted Stock Unit Award, including: (i) the name of the holder, (ii) the number of
shares of Passage Common Stock subject to such Passage Option and/or Passage Restricted Stock Unit Award, (iii) the exercise price of each Passage Option, (iv) the date of grant, (v) the applicable vesting schedule, including any
acceleration provisions and the number of vested and unvested shares, (vi) the expiration date, as applicable, and (vii) whether the Passage Option is intended to be an “incentive stock option” (as defined in the Code) or a
non-qualified stock option. Passage has made available to Remix accurate and complete copies of the following (except for such documents that are filed as an exhibit to a
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(d)
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Except as set forth on Section 4.6(c) of the Passage Disclosure Schedule, there is no: (i) outstanding
subscription, option, call, warrant or right (whether or not currently exercisable) to acquire any shares of the capital stock or other securities of Passage, (ii) outstanding security, instrument or obligation that is or may become
convertible into or exchangeable for any shares of the capital stock or other securities of Passage, (iii) stockholder rights plan (or similar plan commonly referred to as a “poison pill”) or Contract under which Passage is or may
become obligated to sell or otherwise issue any shares of its capital stock or any other securities or (iv) condition or circumstance that may give rise to or provide a basis for the assertion of a claim by any Person to the effect
that such Person is entitled to acquire or receive any shares of capital stock or other securities of Passage.
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(e)
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All outstanding shares of Passage Common Stock and other securities of Passage have been issued and granted in material
compliance with (i) all applicable securities laws and other applicable Law and (ii) all requirements set forth in applicable Contracts.
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4.7
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SEC Filings; Financial Statements.
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(a)
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Passage has filed or furnished, as applicable, on a timely basis all forms, statements, certifications, reports and
documents required to be filed or furnished by it with the SEC under the Exchange Act or the Securities Act since June 1, 2024 (the “Passage SEC Documents”). As of the time it was filed with the
SEC (or, if amended or superseded by a filing prior to the date of this Agreement, then on the date of such filing), each of the Passage SEC Documents complied in all material respects with the applicable requirements of the
Securities Act or the Exchange Act (as the case may be) and as of the time they were filed, none of the Passage SEC Documents contained any untrue statement of a material fact or omitted to state a material fact required to be stated
therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading. The certifications and statements required by (i) Rule 13a-14 under the Exchange Act and
(ii) 18 U.S.C. §1350 (Section 906 of the Sarbanes-Oxley Act) relating to the Passage SEC Documents (collectively, the “Passage Certifications”) are accurate and complete and comply as to form
and content with all applicable Laws. As used in this Section 4.7, the term “file” and variations thereof shall be broadly construed to include any manner in which a document or information is furnished, supplied or otherwise
made available to the SEC.
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(b)
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The financial statements (including any related notes) contained or incorporated by reference in the Passage SEC Documents:
(i) complied as to form in all material respects with the Securities Act and the Exchange Act, as applicable, and the published rules and regulations of the SEC applicable thereto, (ii) were prepared in accordance with GAAP (except as
may be indicated in the notes to such financial statements or, in the case of unaudited financial statements, as permitted by Form 10-Q of the SEC, and except that the unaudited financial statements are subject to normal and recurring
year-end adjustments that are not reasonably expected to be material in amount) applied on a consistent basis unless otherwise noted therein throughout the periods indicated and (iii) fairly present, in all material respects, the
financial position of Passage as of the respective dates thereof and the results of operations and cash flows of Passage for the periods covered thereby. Other than as expressly disclosed in the Passage SEC Documents filed prior to
the date hereof, there has been no material change in Passage’s accounting methods or principles that would be required to be disclosed in Passage’s financial statements in accordance with GAAP. The books of account and other
financial records of Passage and each of its Subsidiaries are true and complete in all material respects.
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(c)
|
Passage’s auditor has at all times since the date of enactment of the Sarbanes-Oxley Act been: (i) a registered public
accounting firm (as defined in Section 2(a)(12) of the Sarbanes-Oxley Act), (ii) to the Knowledge of Passage, “independent” with respect to Passage within the meaning of Regulation S-X under the Exchange Act and (iii) to the Knowledge
of Passage, in compliance with subsections (g) through (l) of Section 10A of the Exchange Act and the rules and regulations promulgated by the SEC and the Public Company Accounting Oversight Board thereunder.
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(d)
|
Except as set forth on Section 4.7(d) of the Passage Disclosure Schedule, Passage has not received any comment
letter from the SEC or the staff thereof or any correspondence from Nasdaq or the staff thereof relating to the delisting or maintenance of listing of Passage Common Stock on Nasdaq. Passage has not disclosed any unresolved comments
in the Passage SEC Documents.
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(e)
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There have been no formal internal investigations regarding financial reporting or accounting policies and practices
discussed with, reviewed by or initiated at the direction of the chief executive officer, chief financial officer, or general counsel of Passage, the Passage Board or any committee thereof, other than ordinary course audits or reviews
of accounting policies and practices or internal controls required by the Sarbanes-Oxley Act.
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(f)
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Except as set forth on Section 4.7(f) of the Passage Disclosure Schedule, Passage is in compliance in all material
respects with the applicable provisions of the Sarbanes-Oxley Act, the Exchange Act and the applicable listing and governance rules and regulations of Nasdaq.
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(g)
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Passage maintains a system of internal controls over financial reporting (as defined in Rules 13a-15(f) and 15d-15(f) of
the Exchange Act) that is sufficient to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with GAAP, including policies and
procedures sufficient to provide reasonable assurance (i) that Passage maintains records that in reasonable detail accurately and fairly reflect Passage’s transactions and dispositions of assets, (ii) that transactions are recorded as
necessary to permit preparation of financial statements in accordance with GAAP, (iii) that receipts and expenditures are made only in accordance with authorizations of management and the Passage Board and (iv) regarding prevention or
timely detection of the unauthorized acquisition, use or disposition of Passage’s assets that could have a material effect on Passage’s financial statements. Passage has evaluated the effectiveness of Passage’s internal controls over
financial reporting and, to the extent required by applicable Law, presented in any applicable Passage SEC Document that is a report on Form 10-K or Form 10-Q (or any amendment thereto) its conclusions about the effectiveness of the
internal controls over financial reporting as of the end of the period covered by such report or amendment based on such evaluation. Passage has disclosed to Passage’s auditors and the Audit Committee of the Passage Board (and made
available to Remix a summary of the significant aspects of such disclosure) (A) all significant deficiencies and material weaknesses in the design or operation of internal controls over financial reporting that are reasonably likely
to adversely affect Passage’s ability to record, process, summarize and report financial information and (B) any known fraud, whether or not material, that involves management or other employees who have a significant role in Passage
or its Subsidiaries’ internal controls over financial reporting. Except as disclosed in the Passage SEC Documents filed prior to the date hereof, Passage’s internal controls over financial reporting is effective and Passage has not
identified any material weaknesses in the design or operation of Passage’s internal controls over financial reporting.
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(h)
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Passage’s “disclosure controls and procedures” (as defined in Rules 13a-15(e) and 15d-15(e) of the Exchange Act) are
designed to ensure that all information (both financial and nonfinancial) required to be disclosed by Passage in the reports that it files or submits under the Exchange Act is recorded, processed, summarized and reported within the
time periods specified in the rules and forms of the SEC, and that all such information is accumulated and communicated to Passage’s principal executive officer and principal financial officer as appropriate to allow timely decisions
regarding required disclosure and to make the Passage Certifications and such disclosure controls and procedures are effective. Passage has carried out evaluation of the effectiveness of its disclosure controls and procedures as
required by Rule 13a-15 of the Exchange Act.
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(i)
|
Passage has not been and is not currently a “shell company” as defined under Section 12b-2 of the Exchange Act.
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4.8
|
Absence of Changes. Except as set forth on Section 4.8 of the Passage Disclosure Schedule, since March 31,
2026, Passage and its Subsidiaries have conducted its business only in the Ordinary Course of Business (except for the execution and performance of this Agreement and the discussions, negotiations and transactions related thereto) and
there has not been any (a) Passage Material Adverse
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4.9
|
Absence of Undisclosed Liabilities. Neither Passage nor any of its Subsidiaries has any Liability of a type required
to be reflected or reserved for on a balance sheet prepared in accordance with GAAP, except for: (a) Liabilities disclosed, reflected or reserved against in the Passage Balance Sheet, (b) normal and recurring current Liabilities that
have been incurred by Passage or its Subsidiaries since the date of the Passage Balance Sheet in the Ordinary Course of Business (none of which relates to any breach of contract, breach of warranty, tort, infringement, or violation of
Law), (c) Liabilities for performance of obligations of Passage or any of its Subsidiaries under Passage Contracts, (d) Liabilities incurred in connection with the Contemplated Transactions and the Subscription Agreement and
(e) Liabilities described in Section 4.9 of the Passage Disclosure Schedule.
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4.10
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Title to Assets. Each of Passage and its Subsidiaries owns, and has good and valid title to, or, in the case of
leased properties and assets, valid leasehold interests in, all tangible properties or tangible assets and equipment used or held for use in its business or operations or purported to be owned by it, including: (a) all tangible assets
reflected on the Passage Balance Sheet and (b) all other tangible assets reflected in the books and records of Passage as being owned by Passage. All of such assets are owned or, in the case of leased assets, leased by Passage or any
of its Subsidiaries free and clear of any Encumbrances, other than Permitted Encumbrances.
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4.11
|
Real Property; Leasehold. Neither Passage nor any of its Subsidiaries owns or has ever owned any real property, nor
is Passage or any of its Subsidiaries party to any agreement to purchase or sell any real property. Passage has made available to Remix (a) an accurate and complete list of all real properties with respect to which Passage directly or
indirectly holds a valid leasehold interest as well as any other real estate that is in the possession of or leased by Passage or any of its Subsidiaries and (b) copies of all leases under which any such real property is possessed
(the “Passage Real Estate Leases”), each of which is in full force and effect, with no existing material default thereunder by Passage or to the Knowledge of Passage, the other party thereto.
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4.12
|
Intellectual Property.
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(a)
|
Section 4.12(a) of the Passage Disclosure Schedule is an accurate, true and complete listing of all Passage
Registered IP (other than domain names), including for each item the record owner (and name of any other Person with an ownership interest in such item of Passage Registered IP, if any, and the nature of such ownership interest),
jurisdiction, status, date of registration or application and registration or application number of each item, as applicable. Section 4.12(a) of the Passage Disclosure Schedule also sets forth, as of the date of this
Agreement, a list of all internet domain names in Passage Registered IP or with respect to which Passage or any of its Subsidiaries are the registrant and, with respect to each domain name, the record owner of such domain name and if
different, the legal and beneficial owner(s) of such domain name and the applicable domain name registrar.
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(b)
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Section 4.12(b) of the Passage Disclosure Schedule accurately identifies all Passage Contracts pursuant to which any
material Passage IP Rights are licensed to Passage or any of its Subsidiaries (other than to the extent such Passage IP Rights are non-exclusively licensed and are (A) any non-customized software that (1) is licensed solely in
executable or object code form pursuant to a nonexclusive license to such software and other Intellectual Property associated with such software and (2) is not incorporated into, or material to the development, manufacturing, or
distribution of, any of Passage’s or its Subsidiaries’ products or services, (B) any Intellectual Property licensed on a nonexclusive basis ancillary to the purchase or use of services, equipment, reagents or other materials, (C) any
confidential information provided subject to confidentiality obligations, (D) proprietary information and inventions assignment agreements or consulting agreements between Passage or its Subsidiaries and their respective employees or
individual independent contractors that are substantially on Passage’s standard form thereof, (E) ancillary to a sale of products or services to customers or (F) incidental to the provision of services from contract manufacturers,
suppliers, distributors or other service providers to Passage or any of its Subsidiaries). To the Knowledge of Passage, each Passage Contract listed in Section 4.12(b) of the Passage Disclosure Schedule is in full force and
effect and constitutes
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(c)
|
Section 4.12(c) of the Passage Disclosure Schedule accurately identifies each Passage Contract pursuant to which any
Person other than Passage or any of its Subsidiaries has been granted any material license under, or otherwise has received or acquired any right (whether or not currently exercisable) or interest in, any Passage IP Rights (other than
(i) any confidential information provided subject to confidentiality obligations and (ii) any Passage IP Rights to the extent nonexclusively licensed to academic collaborators, suppliers or service providers for the sole purpose of
enabling such academic collaborator, supplier or service providers to provide services for Passage’s or its Subsidiaries’ benefit). To the Knowledge of Passage, each Passage Contract listed in Section 4.12(c) of the Passage
Disclosure Schedule is in full force and effect and constitutes a legal, valid, and binding obligation of Passage, its Subsidiaries and each other party thereto, and is enforceable against Passage, its Subsidiaries and each other
party thereto in accordance with its terms. Neither Passage, its Subsidiaries nor, to the Knowledge of Passage, any other party to any Passage Contract listed in Section 4.12(c) of the Passage Disclosure Schedule has provided
or received any written notice or allegation of breach under, or intention to terminate (including by non-renewal), any Passage Contract listed in Section 4.12(c) of the Passage Disclosure Schedule.
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(d)
|
Except as identified on Section 4.12(d) of the Passage Disclosure Schedule, neither Passage nor any of its
Subsidiaries is bound by, no Passage Owned IP Rights are subject to, and to the Knowledge of Passage, no Passage Licensed IP Rights that are exclusively licensed to Passage or any of its Subsidiaries are subject to (other than the
rights of the applicable licensors), any Contract containing any covenant or other provision that materially limits or restricts the ability of Passage or any of its Subsidiaries to use, exploit, assert, or enforce any Passage
Registered IP anywhere in the world.
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(e)
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Passage or one of its Subsidiaries exclusively owns all right, title, and interest to and in the Passage Owned IP Rights
(other than co-owned rights identified in Section 4.12(c) of the Passage Disclosure Schedule), in each case, free and clear of any Encumbrances (other than Permitted Encumbrances).
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(f)
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(i) All documents and instruments necessary to register or apply for or renew registration of Passage Registered IP owned
by Passage or one of its Subsidiaries, and (ii) to the Knowledge of Passage, all documents and instruments necessary to register or apply for or renew registration of Passage Registered IP exclusively licensed to Passage or any of its
Subsidiaries, have been validly executed, delivered, and filed in a timely manner with the appropriate Governmental Authority. (A) Passage or any of its Subsidiaries has filed all statements of use and paid all renewal and maintenance
fees, annuities and other fees with respect to the Passage Registered IP owned by Passage or any of its Subsidiaries, and (B) To the Knowledge of Passage, Passage or its Subsidiaries have executed all documents and instruments
necessary to register or apply for or renew registration of Passage Registered IP exclusively licensed to Passage or any of its Subsidiaries, in each case, that are due and payable as of the date of this Agreement.
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(g)
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Each Person who is or was an employee, contractor or consultant of Passage or any of its Subsidiaries and who is or was
involved in the creation, discovery, reduction to practice or development of any material Intellectual Property for Passage or any of its Subsidiaries has signed a valid, enforceable written agreement containing a present assignment
of all rights, title and interests in and to such Intellectual Property to Passage or such Subsidiary and confidentiality provisions protecting trade secrets and confidential information of Passage and its Subsidiaries.
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(h)
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To the Knowledge of Passage, no current or former member, officer, director, or employee of Passage or any of its
Subsidiaries has any claim, right (whether or not currently exercisable), or interest to or in any Passage Owned IP Rights. To the Knowledge of Passage, no employee of Passage or any of its Subsidiaries is (A) bound by or otherwise
subject to any Contract restricting him or her from performing his or her duties for Passage or such Subsidiary or (B) in breach of any Contract with any former employer or other Person
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(i)
|
No funding, facilities, or personnel of any Governmental Authority were used, directly or indirectly, to develop or create,
in whole or in part, any Passage Owned IP Rights, or, to the Knowledge of Passage, any Passage Licensed IP Rights that are exclusively licensed to Passage or any of its Subsidiaries, and no educational institution has any right to, or
right to royalties for, or to impose any requirement on the manufacture or commercialization of any product incorporating, any Passage Owned IP Rights, or, to the Knowledge of Passage, any Passage Licensed IP Rights that are
exclusively licensed to Passage. To the Knowledge of Passage, no Governmental Authority has any right to (including any “step-in” or “march-in” rights with respect to), ownership of, commercialization of, or right to royalties or
other payments for any Passage Owned IP Rights, or, to the Knowledge of Passage, any Passage Licensed IP Rights that are exclusively licensed to Passage or any of its Subsidiaries. Without limiting the generality of the foregoing, to
the Knowledge of Passage, no invention claimed or covered by any Patent within the Passage Owned IP Rights, or, to the Knowledge of Passage, any Passage Licensed IP Rights that are exclusively licensed to Passage or any of its
Subsidiaries, (A) was conceived or reduced to practice in connection with any research activities funded, in whole or in part, by the federal government of the United States or any agency thereof, (B) is a “subject invention” as that
term is described in 35 U.S.C. Section 201(e), or (C) is otherwise subject to the provisions of the Bayh-Dole Act or any similar Law of any other jurisdiction, including with respect to any Patents that are part of the Passage IP
Rights.
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(j)
|
Passage and each of its Subsidiaries has taken reasonable steps to maintain the confidentiality of and otherwise protect,
maintain and enforce its rights in all proprietary information that Passage or such Subsidiary holds, or purports to hold, as confidential or a trade secret. To the Knowledge of Passage, neither Passage nor any of its Subsidiaries has
made any of its trade secrets or other material confidential or proprietary information that it intended to maintain as confidential information available to any other Person except pursuant to written agreements requiring such Person
to maintain the confidentiality of such trade secrets or confidential information. To the Knowledge of Passage, there have been no material security breaches, outages, violations or unauthorized access to any of the proprietary
information that Passage or any of its Subsidiaries holds, or purports to hold, as confidential or a trade secret, except as would not have, individually or in the aggregate, a Passage Material Adverse Effect.
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(k)
|
Neither Passage nor any of its Subsidiaries has assigned or otherwise transferred ownership of, or agreed to assign or
otherwise transfer ownership of, any Passage IP Rights to any other Person.
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(l)
|
To the Knowledge of Passage, neither Passage nor any of its Subsidiaries has taken or failed to take any action that could
be reasonably expected to result in the abandonment, invalidity, cancellation, forfeiture, relinquishing, invalidation or unenforceability of any Passage Registered IP (including with respect to any Trademark, a failure to exercise
adequate quality controls or an assignment in gross without the accompanying goodwill), other than in the Ordinary Course of Business by Passage or any of its Subsidiaries for Patent or Trademark prosecution. To the Knowledge of
Passage, each item of Passage Registered IP has been duly maintained and is not expired, abandoned or cancelled. To the Knowledge of Passage, each of the Patents included in the Passage Registered IP accurately identifies each and
every inventor of the claims thereof as determined in accordance with the applicable laws of the jurisdiction in which such Patent is issued or pending. To the Knowledge of Passage, neither Passage nor any of its Subsidiaries has
engaged in patent or copyright misuse or any fraud or inequitable conduct in connection with any Passage Registered IP. Each of Passage and its Subsidiaries and their respective counsel have complied with their duties of candor and
disclosure and have made no material misrepresentations in the filings submitted to the applicable Governmental Authorities with respect to any of the Passage Registered IP.
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(m)
|
To the Knowledge of Passage, the Passage IP Rights constitute all Intellectual Property necessary for Passage or any of its
Subsidiaries to conduct its business as currently conducted or proposed to be conducted; provided, however, that the foregoing representation is not a
representation with respect to non-infringement of Intellectual Property.
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(n)
|
Passage has delivered, or made available to Remix, a complete and accurate copy of all material Passage IP Rights
Agreements.
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(o)
|
To the Knowledge of Passage, the manufacture, marketing, offering for sale, sale, importation, use or intended use or other
disposal of any product under development by Passage or any of its Subsidiaries does not violate, and, since June 1, 2023, has not violated, any license or agreement between Passage or its Subsidiaries and any third party in any
material respect, and, to the Knowledge of Passage, does not violate, infringe or misappropriate, and, since June 1, 2023, has not violated, infringed or misappropriated, any valid and issued Patent or other Intellectual Property of
any other Person. To the Knowledge of Passage, no third party is breaching, violating, infringing or misappropriating or, since June 1, 2023, has violated, infringed or misappropriated, any Passage Owned IP Rights, or otherwise is
breaching or, since June 1, 2023, has breached any material Passage IP Rights Agreement.
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(p)
|
As of the date of this Agreement, neither Passage nor any of its Subsidiaries is a party to any Legal Proceeding
(including, but not limited to, opposition, interference or other proceeding in any patent or other government office) contesting the validity, ownership or right to use, sell, offer for sale, license or dispose of any Passage
Registered IP. None of the Passage Owned IP Rights, and to the Knowledge of Passage, the Passage Licensed IP Rights that are exclusively licensed to Passage or any of its Subsidiaries, have been adjudged invalid or unenforceable in
whole or part, and all Passage Owned IP Rights, and to the Knowledge of Passage, all Passage Licensed IP Rights that are exclusively licensed to Passage or any of its Subsidiaries, are in full force and effect. No Patents within the
Passage Registered IP owned by Passage, or to the Knowledge of Passage, no Patents within the Passage Registered IP exclusively licensed to Passage or any of its Subsidiaries, have been subject to any interference, derivation,
reexamination (including ex parte reexamination, inter partes reexamination, inter partes review, or post grant review), reissue, cancellation, opposition, claim, allegation or other action, including any proceeding in which the
scope, validity, inventorship, ownership or enforceability of any such Patent is being or has been contested or challenged. Since June 1, 2023, neither Passage nor any of its Subsidiaries have received any written notice asserting
that any Passage Registered IP or the proposed use, sale, offer for sale, license or disposition of products, methods, or processes claimed or covered thereunder infringes or misappropriates or violates the rights of any other Person
or that Passage or any of its Subsidiaries have otherwise infringed, misappropriated or otherwise violated any Intellectual Property of any Person.
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(q)
|
To the Knowledge of Passage, no registered trademark or trade name owned, used, or applied for by Passage or any of its
Subsidiaries conflicts or interferes with any registered trademark or trade name owned, used, or applied for by any other Person except as would not have a Passage Material Adverse Effect. To the Knowledge of Passage, none of the
goodwill associated with or inherent in any registered trademark in which Passage or its Subsidiaries has or purports to have an ownership interest has been impaired as determined by Passage in accordance with GAAP.
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(r)
|
Except (i) as would not have a Passage Material Adverse Effect or (ii) as contained in license, distribution or service
agreements entered into in the Ordinary Course of Business by Passage or any of its Subsidiaries, to the Knowledge of Passage, (A) neither Passage nor any of its Subsidiaries is bound by any Contract to indemnify, defend, hold
harmless, or reimburse any other Person with respect to any Intellectual Property infringement, misappropriation, or similar claim which is material to Passage or any of its Subsidiaries, taken as a whole and (B) neither Passage nor
any of its Subsidiaries has ever assumed, or agreed to discharge or otherwise take responsibility for, any existing or potential liability of another Person for infringement, misappropriation, or violation of any Intellectual Property
right, which assumption, agreement or responsibility remains in force as of the date of this Agreement.
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(s)
|
To the Knowledge of Passage, neither Passage nor any of its Subsidiaries is party to any Contract that, as a result of such
execution, delivery and performance of this Agreement, will (i) cause the grant, assignment or transfer to any other third party of any license or other right to or in any Passage Registered IP, (ii) result in a breach of, default
under, termination of, or acceleration or modification of such Contract with respect to any Passage Registered IP, (iii) alter, encumber, impair or extinguish, or result in any Encumbrance with respect to the right of Passage or the
Surviving Corporation and its Subsidiaries to use, sell or license or enforce any Passage Registered IP or portion thereof or (iv) result in Passage or any of its Subsidiaries being bound by or subject to any exclusivity obligations,
non-compete or other restrictions on the operation or scope of their respective businesses, or to any obligation to grant any rights in or to any Passage Registered IP, except, in each of (i), (ii), (iii) and (iv), for the occurrence
of any such grant or impairment that would not individually or in the aggregate, result in a Passage Material Adverse Effect.
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(t)
|
Notwithstanding any other provisions of this Agreement, Remix acknowledges and agrees that the representations and
warranties contained in this Section 4.12 are the only representations or warranties made by Passage or any of its Subsidiaries with respect to Intellectual Property, and no other provisions of this Agreement shall be
interpreted as containing any representation or warranty with respect thereto.
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4.13
|
Agreements, Contracts and Commitments.
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(a)
|
Other than Excepted Contracts, Section 4.13 of the Passage Disclosure Schedule lists the following Passage
Contracts in effect as of the date of this Agreement other than the Subscription Agreement (each, a “Passage Material Contract” and collectively, the “Passage Material Contracts”):
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(i)
|
each Passage Contract that is a collective bargaining agreement or other agreement or arrangement with any labor union,
works council or labor organization;
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(ii)
|
each Passage Contract for the employment or engagement of any individual on an employee, consulting or other basis that
provides for annual base compensation in excess of $250,000;
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(iii)
|
each Passage Contract with any Passage Associate that provides for retention, change in control, transaction or other
similar payments or benefits, whether or not payable as a result of the Contemplated Transactions;
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(iv)
|
each Passage Contract relating to any agreement of indemnification or guaranty not entered into in the Ordinary Course of
Business;
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(v)
|
each Passage Contract containing (A) any covenant limiting the freedom of Passage or any of its Subsidiaries or the
Surviving Corporation to engage in any line of business or compete with any Person, or limiting the development, manufacture, or distribution of Passage’s or any of its Subsidiaries’ products or services, (B) any most-favored pricing
arrangement, (C) any exclusivity provision or (D) any non-solicitation provision (excluding such provisions to the extent they provide for non-solicitation of employees, consultants or individual independent contractors);
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(vi)
|
each Passage Contract (A) pursuant to which any Person granted Passage or any of its Subsidiaries an exclusive license to
any Intellectual Property, or (B) pursuant to which Passage or any of its Subsidiaries granted any Person an exclusive license to any Passage IP Rights or (C) that is or should be listed in Section 4.12(b) or 4.12(c) of the Passage
Disclosure Schedule;
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(vii)
|
each Passage Contract relating to capital expenditures and requiring payments after the date of this Agreement in excess of
$250,000 in the aggregate pursuant to its express terms and not cancelable without penalty;
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(viii)
|
each Passage Contract relating to the disposition or acquisition of material assets or any ownership interest in any
Entity, in each case, involving payments in excess of $250,000 in the aggregate after the date of this Agreement;
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(ix)
|
each Passage Contract relating to any mortgages, indentures, loans, notes or credit agreements, security agreements or
other agreements or instruments relating to the borrowing of money or extension of credit in excess of $250,000 in the aggregate or creating any material Encumbrances with respect to any assets of Passage or any of its Subsidiaries or
any loans or debt obligations with officers or directors of Passage or any of its Subsidiaries;
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(x)
|
each Passage Contract that is: (A) a distribution agreement (identifying any that contain exclusivity provisions), (B) an
agreement involving provision of services or products with respect to any pre-clinical or clinical development activities of Passage or any of its Subsidiaries requiring payment by or to Passage or any of its Subsidiaries after the
date of this Agreement in excess of $250,000 pursuant to its express terms, (C) a dealer, distributor, joint marketing, alliance, joint venture, cooperation, development or other agreement currently in force under which Passage or any
of its Subsidiaries has continuing obligations to develop or market any product, technology or service, or any agreement pursuant to which Passage or any of its Subsidiaries has continuing obligations to develop any Intellectual
Property that will not be owned, in whole or in part, by Passage or such Subsidiary or (D) a Contract containing a license under any patent, trademark registration, service mark registration, trade name or copyright registration to or
from any third party to manufacture or
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(xi)
|
each Passage Contract with any Person, including any financial advisor, broker, finder, investment banker or other Person,
providing advisory services to Passage or any of its Subsidiaries in connection with the Contemplated Transactions;
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(xii)
|
each Passage Contract to which Passage or any of its Subsidiaries is a party or by which any of their assets and properties
is currently bound, which involves annual obligations of payment by, or annual payments to, Passage or such Subsidiary in excess of $250,000;
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(xiii)
|
a Passage Real Estate Lease;
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(xiv)
|
a Contract disclosed in or required to be disclosed in Section 4.12(b) or Section 4.12(c) of the Passage
Disclosure Schedule; or
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(xv)
|
any other Passage Contract that is not terminable at will (with no penalty or payment) by Passage or any of its
Subsidiaries, and (A) which involves payment or receipt by Passage or such Subsidiary after the date of this Agreement under any such agreement, contract or commitment of more than $250,000 in the aggregate, or obligations after the
date of this Agreement in excess of $500,000 in the aggregate or (B) that is material to the business or operations of Passage and its Subsidiaries taken as a whole.
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(b)
|
Passage has delivered or made available to Remix accurate and complete copies of all Passage Material Contracts, including
all amendments thereto. There are no Passage Material Contracts that are not in written form. Neither Passage nor any of its Subsidiaries has, nor, to the Knowledge of Passage, as of the date of this Agreement, has any other party to
a Passage Material Contract, breached, violated or defaulted under, or received notice that it breached, violated or defaulted under, any of the terms or conditions of any such Passage Material Contract in such manner as would permit
any party to cancel or terminate any such Passage Material Contract, or would permit any party to seek material damages thereunder. As to Passage and its Subsidiaries, as of the date of this Agreement, each Passage Material Contract
is valid, binding, enforceable and in full force and effect, subject to the Enforceability Exceptions. No Person is renegotiating, or has a right pursuant to the terms of any Passage Material Contract to change, any material amount
paid or payable to Passage or any of its Subsidiaries under any Passage Material Contract or any other material term or provision of any Passage Material Contract.
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4.14
|
Compliance; Permits; Restrictions.
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|
(a)
|
Passage and each of its Subsidiaries is, and since June 1, 2023 has been, in material compliance with all applicable Laws.
No investigation, claim, suit, proceeding, audit, Order, or other action by any Governmental Authority is pending or, to the Knowledge of Passage, threatened against Passage or any of its Subsidiaries. There is no agreement or Order
binding upon Passage or any of its Subsidiaries which (i) could reasonably be expected to have the effect of prohibiting or materially impairing any business practice of Passage or any of its Subsidiaries, any acquisition of material
property by Passage or any of its Subsidiaries or the conduct of business by Passage or any of its Subsidiaries as currently conducted, (ii) is reasonably likely to have an adverse effect on Passage’s ability to comply with or perform
any covenant or obligation under this Agreement or (iii) is reasonably likely to have the effect of preventing, delaying, making illegal or otherwise interfering with the Contemplated Transactions.
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(b)
|
Each of Passage and its Subsidiaries holds all required Governmental Authorizations that are material to the operation of
the business of Passage and the Merger Subs as currently conducted (collectively, the “Passage Permits”). Section 4.14(b) of the Passage
Disclosure Schedule identifies each Passage Permit. Each of Passage and its Subsidiaries is in material compliance with the terms of such Passage Permits. No Legal Proceeding is pending or, to the Knowledge of Passage, threatened,
which seeks to revoke, substantially limit, suspend, or materially modify any Passage Permit.
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(c)
|
There are no Legal Proceedings pending or, to the Knowledge of Passage, threatened in writing with respect to an alleged
material violation by Passage or any of its Subsidiaries of the FDCA or any other similar Law promulgated by a Drug Regulatory Agency.
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|
(d)
|
Each of Passage and its Subsidiaries holds all required material Governmental Authorizations issuable by any Drug
Regulatory Agency necessary for the conduct of the business of Passage and the Merger Subs as currently conducted, and, as applicable, the research, development, testing, manufacturing, packaging, processing, storage, labeling, sale,
marketing, advertising, distribution and importation or exportation, in each case as currently conducted, of any of its product candidates (the “Passage Product Candidates”) (collectively, the “Passage Regulatory Permits”) and, since June 1, 2023, no such Passage Regulatory Permit has been (i) revoked, withdrawn, suspended, cancelled or terminated
or (ii) modified in any material, adverse manner. Since June 1, 2023, Passage has maintained and is in compliance in all material respects with the terms of such Passage Regulatory Permits and neither Passage nor any of its
Subsidiaries has, since June 1, 2023, received any written notice or other written communication from any Drug Regulatory Agency regarding (A) any material violation of or failure to comply materially with any term or requirement of
any Passage Regulatory Permit or (B) any revocation, withdrawal, suspension, cancellation, termination or material modification of any Passage Regulatory Permit.
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(e)
|
Except as set forth in Section 4.14(e) of the Passage Disclosure Schedule, all clinical, pre-clinical and other studies and
tests conducted by or on behalf of, or sponsored by, Passage or its Subsidiaries, in which Passage or its Subsidiaries or their respective product candidates, including the Passage Product Candidates, have participated (collectively,
“Passage Studies”), were and, if still pending, are being conducted in compliance in all material respects with any applicable regulations of the Drug Regulatory Agencies and other applicable
Law to which such Passage Studies are or were subject, including, without limitation, 21 C.F.R. Parts 50, 54, 56, 58 and 312. Neither Passage nor any of its Subsidiaries has received any written notices, correspondence, or other
communications from any Drug Regulatory Agency requiring, or, to the Knowledge of Passage, any action to place a clinical hold order on, or otherwise terminate, delay, or suspend any such Passage Studies, other than ordinary course
communications regarding the design and implementation of such Passage Studies.
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(f)
|
Neither Passage nor any of its Subsidiaries, nor, to the Knowledge of Passage, any contract manufacturer with respect to
any Passage Product Candidate, is the subject of any pending or, to the Knowledge of Passage, threatened investigation in respect of its business or products by the FDA pursuant to the Application Integrity Policy or any other similar
Law. To the Knowledge of Passage, neither Passage nor any of its Subsidiaries nor any contract manufacturer with respect to any Passage Product Candidate has committed any acts, made any statement, or failed to make any statement, in
each case in respect of Passage’s business or products that would violate the Application Integrity Policy or any other similar Law. Since June 1, 2023, none of Passage, any of its Subsidiaries, or to the Knowledge of Passage, any of
their respective officers, employees, agents or contract manufacturers with respect to any Passage Product Candidate has been convicted of any crime that could result in a debarment or exclusion under (i) 21 U.S.C. Section 335a, (ii)
42 U.S.C. § 1320a-7, or (iii) any other applicable Law. To the Knowledge of Passage, no debarment or exclusionary claims, actions, proceedings or investigations in respect of their business or products are pending or threatened
against Passage, any of its Subsidiaries, any contract manufacturer with respect to any Passage Product Candidate, or any of its respective officers, employees or agents. Neither Passage nor any of its Subsidiaries is a party to or
has any reporting obligations under any corporate integrity agreements, monitoring agreements, deferred or non-prosecution agreements, consent decrees, settlement orders, or similar agreements with or imposed by any Governmental
Authority.
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(g)
|
All manufacturing operations conducted by, or to the Knowledge of Passage, for the benefit of, Passage or its Subsidiaries
in connection with any Passage Product Candidate, since June 1, 2023, have been and are being conducted in compliance in all material respects with applicable Laws, including the FDCA, and to the extent applicable, the respective
counterparts thereof promulgated by Governmental Authorities in countries outside the United States.
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(h)
|
None of Passage, its Subsidiaries or, to the Knowledge of Passage, any manufacturing site of a contract manufacturer, in
each case with respect to such parties’ or such site’s activities conducted with respect to any Passage Product Candidate, (i) is subject to a Drug Regulatory Agency shutdown or import or export prohibition or (ii) has since June 1,
2023, received any unresolved Form FDA 483, notice of violation,
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4.15
|
Legal Proceedings; Orders.
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|
(a)
|
Except as set forth in Section 4.15 of the Passage Disclosure Schedule, there is no pending Legal Proceeding and,
to the Knowledge of Passage, no Person has threatened in writing to commence any Legal Proceeding: (i) that involves Passage or any of its Subsidiaries or any Passage Associate (in his or her capacity as such) or any of the material
assets owned or used by Passage or any of its Subsidiaries or (ii) that challenges, or that may have the effect of preventing, delaying, making illegal or otherwise interfering with, the Contemplated Transactions.
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(b)
|
There is no Order to which Passage or any of its Subsidiaries, or any of the material assets owned or used by Passage or
any of its Subsidiaries is subject. To the Knowledge of Passage, no officer or other Key Employee of Passage or any of its Subsidiaries is subject to any Order that prohibits such officer or employee from engaging in or continuing any
conduct, activity or practice relating to the business of Passage or any of its Subsidiaries or to any material assets owned or used by Passage or any of its Subsidiaries.
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4.16
|
Tax Matters.
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|
(a)
|
Each of Passage and each of its Subsidiaries has timely filed all income Tax Returns and all other material Tax Returns
that were required to be filed by or with respect to it under applicable Law. All such Tax Returns were correct and complete in all material respects and have been prepared in substantial compliance with all applicable Law. Subject to
exceptions as would not be material, no claim has ever been made by a Governmental Authority in a jurisdiction where Passage or any of its Subsidiaries does not file a particular type of Tax Return that Passage or any of its
Subsidiaries is subject to taxation by that jurisdiction that would require the filing of such a Tax Return.
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|
(b)
|
All material amounts of Taxes due and owing by Passage and each of its Subsidiaries (whether or not shown on any Tax
Return) have been timely paid. The unpaid Taxes of Passage and each of its Subsidiaries for periods (or portions thereof) ending on or prior to the date of the Passage Balance Sheet do not materially exceed the accruals for current
Taxes set forth on the Passage Balance Sheet.
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(c)
|
Each of Passage and each of its Subsidiaries has withheld and paid to the appropriate Governmental Authority all material
Taxes required to have been withheld and paid in connection with any amounts paid or owing to any employee, independent contractor, creditor, stockholder, or other third party.
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(d)
|
There are no Encumbrances for material Taxes (other than Encumbrances described in clause (i) of the definition of
“Permitted Encumbrances”) upon any of the assets of Passage or any of its Subsidiaries.
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|
(e)
|
No deficiencies for a material amount of Taxes with respect to Passage or any of its Subsidiaries have been claimed,
proposed or assessed by any Governmental Authority in writing that have not been timely paid in full. There are no pending (or, based on written notice, threatened) material audits, assessments, examinations or other actions for or
relating to any Liability in respect of Taxes of Passage or any of its Subsidiaries. Neither Passage nor any of its Subsidiaries has waived any statute of limitations in respect of material Taxes or agreed to any extension of time
with respect to a material Tax assessment or deficiency.
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|
(f)
|
Neither Passage nor any of its Subsidiaries has been a United States real property holding corporation within the meaning
of Section 897(c)(2) of the Code during the applicable period specified in Section 897(c)(1)(A)(ii) of the Code.
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|
(g)
|
Neither Passage nor any of its Subsidiaries is a party to any material Tax allocation, Tax sharing or similar agreement
(including indemnity arrangements), other than Ordinary Course Agreements.
|
|
(h)
|
Neither Passage nor any of its Subsidiaries has been a member of an affiliated group filing a consolidated U.S. federal
income Tax Return (other than a group the common parent of which is Passage). Neither Passage nor any of its Subsidiaries has any material Liability for the Taxes of any Person (other than Passage and the Merger Subs) under Treasury
Regulations Section 1.1502-6 (or any similar provision of state, local, or foreign law), as a transferee or successor, or by Contract (other than an Ordinary Course Agreement).
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|
(i)
|
Neither Passage nor any of its Subsidiaries has been a party to any joint venture, partnership, or other arrangement that
is treated as a partnership for U.S. federal income Tax purposes.
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|
(j)
|
Neither Passage nor any of its Subsidiaries has a permanent establishment (within the meaning of an applicable Tax treaty)
or other office or fixed place of business in a country other than the country in which it is organized.
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|
(k)
|
Neither Passage nor any of its Subsidiaries has distributed stock of another Person, or has had its stock distributed by
another Person, in a transaction that was purported or intended to be governed in whole or in part by Section 355 of the Code or Section 361 of the Code.
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|
(l)
|
Neither Passage nor any of its Subsidiaries has entered into any transaction identified as a “listed transaction” for
purposes of Treasury Regulations Section 1.6011-4(b)(2).
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|
(m)
|
Neither Passage nor any of its Subsidiaries will be required to include any material item of income or gain in, or exclude
any material item of deduction or loss from, taxable income for any taxable period (or portion thereof) ending after the Closing Date as a result of any: (i) change in, or use of improper, method of accounting for a taxable period
ending on or prior to the Closing Date; (ii) “closing agreement” as described in Section 7121 of the Code (or any corresponding or similar provision of state, local or foreign income Tax law) executed on or prior to the Closing Date;
(iii) installment sale or open transaction disposition made on or prior to the Closing Date; (iv) prepaid amount, advance payments or deferred revenue received or accrued on or prior to the Closing Date; (v) intercompany transaction
or excess loss amount described in Treasury Regulations under Section 1502 of the Code (or any corresponding or similar provision of state, local or foreign income Tax Law); or (vi) application of Section 367(d) of the Code to any
transfer of intangible property on or prior to the Closing Date. Passage has not made any election under Section 965(h) of the Code.
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(n)
|
Section 4.16(n) of the Passage Disclosure Schedule sets forth the entity classification of Passage and each of its
Subsidiaries for U.S. federal income tax purposes. Neither Passage nor any of its Subsidiaries has made an election or taken any other action to change its federal and state income tax classification from such existing classification.
For U.S. federal income tax purposes, Merger Sub II is, and has been since formation, properly treated as an entity disregarded as separate from Passage.
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(o)
|
Neither Passage nor any of its Subsidiaries has taken or knowingly failed to take any action, nor to the Knowledge of
Passage, are there any facts or circumstances, in each case, that would reasonably be expected to prevent or impede the Mergers from qualifying for the Intended Tax Treatment.
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4.17
|
Employee and Labor Matters; Benefit Plans.
|
|
(a)
|
Section 4.17(a) of the Passage Disclosure Schedule contains a complete and accurate list of all Passage employees as
of the date of this Agreement, setting forth for each employee: job title; classification as exempt or non-exempt for wage and hour purposes; annual base salary, hourly rate or other rates of compensation; bonus potential; full-time
or part-time status; date of hire; business location; status (i.e., active or inactive and if inactive, the type of leave and estimated duration); and any visa or work permit status and the date of expiration, if applicable.
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|
(b)
|
Section 4.17(b) of the Passage Disclosure Schedule contains a complete and accurate list as of the date hereof of
all of the independent contractors, consultants, temporary employees, leased employees or other agents employed or used by Passage and classified by Passage as other than employees, or compensated other than through wages paid by
Passage through Passage’s payroll department (“Passage Contingent Workers”), showing for each Passage Contingent Worker such individual’s engagement date, role in the business, work location, and fee or compensation
arrangements.
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|
(c)
|
Neither Passage nor any of its Subsidiaries is a party to, bound by the terms of, or has a duty to bargain under, any
collective bargaining agreement or other Contract with a labor union, works council or labor organization representing any Passage Associate, and there are no labor unions, works council or labor organizations representing or, to the
Knowledge of Passage, purporting to represent or seeking to represent any Passage Associates, including through the filing of a petition for representation election.
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(d)
|
Section 4.17(d) of the Passage Disclosure Schedule lists all material Passage Employee Plans.
|
|
(e)
|
As applicable with respect to each material Passage Employee Plan, Passage has made available to Remix,
|
|
(f)
|
Each Passage Employee Plan that is intended to be qualified under Section 401(a) of the Code has received a favorable
determination letter or may rely on a favorable opinion letter with respect to such qualified status from the IRS to the effect that such plan is qualified under Section 401(a) of the Code and the related trust is exempt from federal
income Taxes under Section 501(a) of the Code. To the Knowledge of Passage, nothing has occurred that would reasonably be expected to cause the loss of the qualified status of any such Passage Employee Plan or the Tax exempt status of
any related trust.
|
|
(g)
|
Each Passage Employee Plan has been established, maintained and operated in compliance, in all material respects, with its
terms and all applicable Laws, including, without limitation, the Code and ERISA. No Legal Proceeding (other than those relating to routine claims for benefits) is pending or, to the Knowledge of Passage, threatened with respect to
any Passage Employee Plan. All material payments and/or contributions required to have been made with respect to all Passage Employee Plans have been made in accordance with the terms of the applicable Passage Employee Plan and
applicable Law in all material respects and neither Passage nor any Passage ERISA Affiliate has any material Liability for any such unpaid contributions with respect to any Passage Employee Plan.
|
|
(h)
|
Neither Passage, any of its Subsidiaries nor any of their ERISA Affiliates maintains, contributes to, is required to
contribute to or has any Liability with respect to (i) any “employee benefit plan” (within the meaning of Section 3(2) of ERISA) that is or was subject to Title IV or Section 302 of ERISA or Section 412 of the Code, (ii) a
Multiemployer Plan, (iii) any Multiple Employer Plan, or (iv) any Multiple Employer Welfare Arrangement.
|
|
(i)
|
No Passage Employee Plan provides for medical or other welfare benefits to any service provider beyond termination of
service or retirement, other than (i) pursuant to COBRA or an analogous state law requirement (the full cost of which is borne by such Person or such Person’s dependents or beneficiaries) or (ii) continuation coverage through the end
of the month in which such termination or retirement occurs.
|
|
(j)
|
No Passage Employee Plan is subject to any law of a foreign jurisdiction outside of the United States.
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|
(k)
|
Each Passage Employee Plan that constitutes in any part a nonqualified deferred compensation plan within the meaning of
Section 409A of the Code has complied in all material respects with Section 409A of the Code, to the extent applicable, and no compensation has been or would reasonably be expected to be includable in the gross income of any Passage
Associate as a result of the operation of Section 409A of the Code.
|
|
(l)
|
Passage and its Subsidiaries are, and since June 1, 2023 have been, in compliance in all material respects with all
applicable Laws respecting labor, employment and employment practices, including terms and conditions of employment, worker classification, tax withholding, unemployment compensation, workers’ compensation, prohibited discrimination,
harassment, equal employment, fair employment practices, meal and rest periods, work authorization and immigration status, employee safety and health, wages (including overtime wages), pay equity, affirmative action, restrictive
covenants, compensation, and hours of work. There are no Legal Proceedings pending or, to the Knowledge of Passage, threatened against Passage or any of its Subsidiaries relating to any labor or employment matters or any Passage
Associate. Passage is not a party to a conciliation agreement, consent decree or other agreement or Order with any federal, state, or local agency or Governmental Authority with respect to employment practices.
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|
(m)
|
Since June 1, 2023, (i) Passage has not taken any action which would constitute a “plant closing”, “collective dismissal”,
“group dismissal”, “group termination”, “mass termination”, or “mass layoff” within the
|
|
(n)
|
Since June 1, 2023, there has never been, nor to the Knowledge of Passage has there been any threat of, any strike,
slowdown, work stoppage, lockout, job action, union, organizing activity, question concerning representation or any similar activity or dispute, affecting Passage or its Subsidiaries. No event has occurred within the past six (6)
months, and, to the Knowledge of Passage, no condition or circumstance exists, that would reasonably be expected to give rise to or provide a basis for the commencement of any such strike, slowdown, work stoppage, lockout, job action,
union organizing activity, question concerning representation or any similar activity or dispute.
|
|
(o)
|
There is no contract, agreement, plan or arrangement to which Passage or any of its Subsidiaries is a party or by which it
is bound to make any payment or compensate any Passage Associate for Taxes incurred pursuant to the Code, including, but not limited to, Section 4999 or Section 409A of the Code.
|
|
(p)
|
Neither the execution and delivery of this Agreement, the shareholder approval of this Agreement, nor the consummation of
the Contemplated Transactions (either alone or in conjunction with any other event, including without limitation, a termination of employment) will result in any (i) payment (including severance, forgiveness of indebtedness or
otherwise) or benefit becoming due to a Passage Associate, (ii) increase in any benefits or the compensation payable under any Passage Employee Plan, (iii) acceleration of the time of payment, funding or vesting of any such
compensation or benefits or any loan forgiveness, (iv) restriction on the right of Passage or any of its Subsidiaries or, after the consummation of Contemplated Transactions, the Surviving Corporation, to merge, amend, terminate or
transfer any Passage Employee Plan, or (v) “excess parachute payment” (within the meaning of Section 280G of the Code).
|
|
4.18
|
Environmental Matters. Since June 1, 2023, Passage and each of its Subsidiaries has complied with all applicable
Environmental Laws, which compliance includes the possession by Passage of all permits and other Governmental Authorizations required under applicable Environmental Laws and compliance with the terms and conditions thereof, except for
any failure to be in compliance that, individually or in the aggregate, would not result in a Passage Material Adverse Effect. Neither Passage nor any of its Subsidiaries has received since June 1, 2023, any written notice or other
communication (in writing or otherwise), whether from a Governmental Authority, citizens group, employee or otherwise, that alleges that Passage or any of its Subsidiaries is not in compliance with any Environmental Law, and, to the
Knowledge of Passage, there are no circumstances that may prevent or interfere with Passage’s or any of its Subsidiaries’ compliance with any Environmental Law in the future, except where such failure to comply would not have a
Passage Material Adverse Effect. To the Knowledge of Passage: (a) no current or prior owner of any property leased or controlled by Passage or any of its Subsidiaries has received since June 1, 2023, any written notice or other
communication relating to property owned or leased at any time by Passage or any of its Subsidiaries, whether from a Governmental Authority, citizens group, employee or otherwise, that alleges that such current or prior owner or
Passage or any of its Subsidiaries is not in compliance with or violated any Environmental Law relating to such property and (b) neither Passage nor any of its Subsidiaries has any material Liability under any Environmental Law.
|
|
4.19
|
Insurance. Passage has made available to Remix accurate and complete copies of all material insurance policies and
all material self-insurance programs and arrangements relating to the business, assets, liabilities and operations of Passage and its Subsidiaries (including the Merger Subs). Each of such insurance policies is in full force and
effect and Passage and its Subsidiaries (including the Merger Subs) are in compliance in all material respects with the terms thereof. Other than customary end of policy notifications from insurance carriers, since June 1, 2023,
neither Passage nor any of its Subsidiaries has received any notice or other communication regarding any actual or possible: (a) cancellation or invalidation of any insurance policy or (b) refusal or denial of any coverage,
reservation of rights or rejection of any material claim under any insurance policy. Each of Passage and its Subsidiaries (including the Merger Subs) has provided timely written notice to the appropriate insurance carrier(s) of
|
|
4.20
|
Transactions with Affiliates. Except as set forth in the Passage SEC Documents filed prior to the date of this
Agreement, since the date of Passage’s last proxy statement filed in 2026 with the SEC, no event has occurred that would be required to be reported by Passage pursuant to Item 404 of Regulation S-K promulgated by the SEC.
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|
4.21
|
No Financial Advisors. Except as set forth on Section 4.21 of the Passage Disclosure Schedule, no broker,
finder or investment banker is entitled to any brokerage fee, finder’s fee, opinion fee, success fee, transaction fee or other fee or commission in connection with the Contemplated Transactions based upon arrangements made by or on
behalf of Passage.
|
|
4.22
|
Valid Issuance; No Bad Actor. The Passage Common Stock to be issued in the First Merger (including any Passage
Common Stock issuable upon conversion of pre-funded warrants to be issued in the First Merger) will, when issued in accordance with the provisions of this Agreement, be validly issued, fully paid and nonassessable. To the Knowledge of
Passage, as of the date of this Agreement and as of the Closing, no “bad actor” disqualifying event described in Rule 506(d)(l)(i)-(viii) of the Securities Act (a “Disqualifying Event”) is applicable to Passage or, to Passage’s Knowledge, any Passage Covered Person, except for a Disqualifying Event as to which Rule 506(d)(2)(ii-iv) or (d)(3) of the Securities Act is applicable.
|
|
4.23
|
Privacy and Data Security.
|
|
(a)
|
Passage and its Subsidiaries have complied with all applicable Privacy Laws and the applicable terms of any Passage
Contracts relating to privacy, security, collection or use of Personal Information of any individuals (including clinical trial participants, patients, patient family members, caregivers or advocates, physicians and other health care
professionals, clinical trial investigators, researchers, pharmacists) that interact with Passage or any of its Subsidiaries in connection with the operation of Passage’s and its Subsidiaries’ business, except for such noncompliance
as has not had, and would not have, individually or in the aggregate, a Passage Material Adverse Effect. To the Knowledge of Passage, Passage has implemented and maintains reasonable written policies and procedures, satisfying the
requirements of applicable Privacy Laws and Passage Contracts, concerning the privacy, security, collection and use of Personal Information (“Passage Privacy Policies”) and has complied with the
same, except for such noncompliance as has not to the Knowledge of Passage had, and would not have, individually or in the aggregate, a Passage Material Adverse Effect. To the Knowledge of Passage, as of the date hereof, no claims
have been asserted or threatened against Passage by any Person alleging a violation of Privacy Laws, Passage Privacy Policies and/or the applicable terms of any Passage Contracts relating to privacy, security, collection or use of
Personal Information of any individuals and Passage has not received written notice of any of the same. To the Knowledge of Passage, there have been no data security incidents, personal data breaches or other adverse events or
incidents related to Personal Information or Passage data in the custody or control of Passage or any service provider acting on behalf of Passage, in each case where such incident, breach or event would result in a notification
obligation to any Person under applicable law or pursuant to the terms of any Passage Contract.
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|
(b)
|
The information technology assets and equipment of Passage and its Subsidiaries (collectively, “Passage IT Systems”) are adequate for, and operate and perform in all material respects as required in connection with the operation of the business of Passage and its Subsidiaries as currently conducted, and to the
Knowledge of Passage, free and clear of all material bugs, errors, defects, Trojan horses, time bombs, malware and other corruptants. Passage and its Subsidiaries have implemented and maintain commercially reasonable physical,
technical and administrative safeguards to protect Personal Information processed by or on behalf of Passage and its Subsidiaries, any other material confidential information and the integrity and security of Passage IT Systems used
in connection with their businesses, and during the past three years, there have been no breaches, violations, outages or unauthorized uses of or accesses to the same, except for those that have been remedied without material cost or
Liability or the duty to notify any other Person.
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|
4.24
|
No Other Representations or Warranties. Passage hereby acknowledges and agrees that, except for the representations
and warranties contained in this Agreement, neither Remix nor any of its Subsidiaries
|
|
5.1
|
Conduct of Remix’s Business. From the date hereof until the earlier of the Initial Effective Time and the
termination of this Agreement in accordance with Article VIII (the “Pre-Closing Period”), except as set forth on Section 5.1 of the Remix Disclosure Schedule, as required by
applicable Law, as otherwise provided by this Agreement and the Contemplated Transactions or with Passage’s prior written consent (not to be unreasonably withheld, conditioned or delayed), Remix shall, and shall cause its Subsidiaries
to, use their commercially reasonable efforts to conduct its operations in the Ordinary Course of Business and to preserve intact the present business organizations and goodwill of the business and the present relationships of the
business with material customers and suppliers. Without limiting the generality of the foregoing, during the Pre-Closing Period, except as set forth in Section 5.1 of the Remix Disclosure Schedule, as required by applicable
Law, as otherwise specifically provided by this Agreement and the Contemplated Transactions or with Passage’s prior written consent (not to be unreasonably withheld, conditioned or delayed), Remix shall not, and shall cause its
Subsidiaries not to:
|
|
(a)
|
sell, lease, license or otherwise dispose of any material assets of Remix, or in either case, any interests therein, except
(i) pursuant to existing Contracts, (ii) for sales or licensing of products to customers or (iii) otherwise in the Ordinary Course of Business;
|
|
(b)
|
take any action with respect to any equity interests of Remix or any of its Subsidiaries, including any issuance, sale,
transfer, redemption, repurchase, recapitalization, adjustment, split, combination, reclassification, dividend, distribution or any other action in respect thereof;
|
|
(c)
|
create, incur, assume, guarantee or repay (other than any mandatory repayments) any indebtedness;
|
|
(d)
|
issue, deliver, sell, grant, pledge, transfer, subject to any Encumbrance or dispose of any Remix Capital Stock or the
securities of any Subsidiary of Remix;
|
|
(e)
|
create or otherwise incur any Encumbrance on any material asset of Remix or any of its Subsidiaries, other than Permitted
Encumbrances;
|
|
(f)
|
make any loans, advances or capital contributions to, or investments in, any Person other than Remix;
|
|
(g)
|
adversely amend or otherwise adversely modify in any material respect or terminate (excluding any expiration in accordance
with its terms) any Contract listed in Section 3.13 of the Remix Disclosure Schedule, other than any amendment or modification entered into in the Ordinary Course of Business and containing terms not materially less favorable
to Remix or any of its Subsidiaries than the terms of such Contract in effect as of the date of this Agreement;
|
|
(h)
|
enter into any Contract that would be required to be disclosed in Section 3.13(a) of the Remix Disclosure Schedule
if such Contract were in effect as of the date of this Agreement, other than any such Contract entered into in the Ordinary Course of Business;
|
|
(i)
|
except as required by any Remix Employee Plan, (i) increase any salary, wage or other compensation or benefit to, or enter
into or amend any employment, retention, change-in-control, termination or severance agreement with, any Remix Associate, other than annual increases in base compensation in the Ordinary Course of Business with respect to employees
whose annual base compensation is less than $500,000 and
|
|
(j)
|
adopt, enter into, amend or terminate any collective bargaining agreement or Contract with any labor union, works council
or labor organization;
|
|
(k)
|
settle any material Legal Proceeding involving Remix or any of its Subsidiaries or relating to the transactions
contemplated by this Agreement, in either case, for more than $100,000 individually or $250,000 in the aggregate;
|
|
(l)
|
make or change any material Tax election or Tax accounting method, change any annual Tax accounting period, amend any
material Tax Return, enter into any closing agreement with a Governmental Authority with respect to material Taxes or settle any Tax claim with respect to material Taxes;
|
|
(m)
|
take any action, or knowingly fail to take any action, where such action or failure to act would reasonably be expected to
prevent the Mergers from qualifying for the Intended Tax Treatment;
|
|
(n)
|
make any material change in any method of financial accounting or financial accounting practice of Remix or any of its
Subsidiaries, except for any such change required by reason of a change in GAAP or other applicable financial accounting standards;
|
|
(o)
|
other than in connection with actions contemplated by this Agreement, adopt, approve, consent to or propose any change in
the Organizational Documents of Remix or any of its Subsidiaries; or
|
|
(p)
|
agree or commit to do any of the foregoing.
|
|
5.2
|
Conduct of Passage’s Business. During the Pre-Closing Period, except as set forth on Section 5.2 of the
Passage Disclosure Schedule, as required by applicable Law, as otherwise provided by this Agreement and the Contemplated Transactions or with Remix’s prior written consent (not to be unreasonably withheld, conditioned or delayed),
Passage shall, and shall cause its Subsidiaries to, use their commercially reasonable efforts to conduct its operations in the Ordinary Course of Business and to preserve intact the present business organizations and goodwill of the
business and the present relationships of the business with material customers and suppliers. Without limiting the generality of the foregoing, during the Pre-Closing Period, except as set forth in Section 5.2 of the Passage
Disclosure Schedule, as required by applicable Law, as otherwise specifically provided by this Agreement and the Contemplated Transactions or with Remix’s prior written consent (not to be unreasonably withheld, conditioned or
delayed), Passage shall not, and shall cause its Subsidiaries not to:
|
|
(a)
|
sell, lease, license or otherwise dispose of any material assets of Passage, or in either case, any interests therein,
except (i) pursuant to existing Contracts, (ii) for sales or licensing of products to customers or (iii) otherwise in the Ordinary Course of Business;
|
|
(b)
|
except for the issuance of securities under this Agreement, take any action with respect to any equity interests of Passage
or any of its Subsidiaries, including any issuance, sale, transfer, redemption, repurchase, recapitalization, adjustment, split, combination, reclassification, dividend, distribution or any other action in respect thereof;
|
|
(c)
|
create, incur, assume, guarantee or repay (other than any mandatory repayments) any indebtedness;
|
|
(d)
|
issue, deliver, sell, grant, pledge, transfer, subject to any Encumbrance or dispose of any Passage Common Stock or the
securities of any Subsidiary of Passage;
|
|
(e)
|
create or otherwise incur any Encumbrance on any material asset of Passage, other than Permitted Encumbrances;
|
|
(f)
|
make any loans, advances or capital contributions to, or investments in, any Person other than Passage;
|
|
(g)
|
adversely amend or otherwise adversely modify in any material respect or terminate (excluding any expiration in accordance
with its terms) any Contract listed in Section 4.13 of the Passage Disclosure Schedule, other than any amendment or modification entered into in the Ordinary Course of Business and containing terms, not materially less
favorable to Passage or any of its Subsidiaries than the terms of such Contract in effect as of the date of this Agreement;
|
|
(h)
|
enter into any Contract that would be required to be disclosed in Section 4.13 of the Passage Disclosure Schedule
if such Contract were in effect as of the date of this Agreement, other than any such Contract entered into in the Ordinary Course of Business;
|
|
(i)
|
except as required by any Passage Employee Plan, (i) increase any salary, wage or other compensation or benefit to, or
enter into or amend any employment, retention, change-in-control, termination or severance agreement with, any Passage Associate, (ii) grant or pay any bonuses to any Passage Associate, (iii) establish, enter into or adopt any new
Passage Employee Plan or any plan, program, policy, agreement or arrangement that would be a material Passage Employee Plan if it was in effect on the date hereof or amend or modify, in a manner that would, individually or in the
aggregate, materially increase costs, obligations or liabilities for Passage and its Subsidiaries or the Surviving Corporation, any existing Passage Employee Plan or accelerate the vesting of any compensation (including stock options,
restricted stock, restricted stock units, phantom units, warrants, other shares of capital stock or rights of any kind to acquire any shares of capital stock or equity-based awards) for the benefit of any Passage Associate, (iv) grant
to any Passage Associate any right to receive, or pay to any Passage Associate, any severance, change in control, transaction, retention, termination or similar compensation or benefits or increases therein, (v) take any action to
accelerate any payment or benefit, or the funding of any payment or benefit, payable or to be provided to any Passage Associate, (vi) grant any new long-term incentive or equity-based awards, or amend or modify the terms of any such
outstanding awards under any Passage Employee Plan or (vii) hire, terminate (other than for cause), promote or change the employment status or title of any Passage Associate other than terminations of any Passage Associate who is not
an officer of Passage;
|
|
(j)
|
adopt, enter into, amend or terminate any collective bargaining agreement or Contract with any labor union, works council
or labor organization;
|
|
(k)
|
settle any material Legal Proceeding involving Passage or relating to the transactions contemplated by this Agreement;
|
|
(l)
|
make or change any material Tax election or Tax accounting method, change any annual Tax accounting period, amend any
material Tax Return; enter into any closing agreement with a Governmental Authority with respect to material Taxes or settle any Tax claim with respect to material Taxes;
|
|
(m)
|
take any action, or knowingly fail to take any action, where such action or failure to act would reasonably be expected to
prevent the Mergers from qualifying for the Intended Tax Treatment;
|
|
(n)
|
make any material change in any method of financial accounting or financial accounting practice of Passage, except for any
such change required by reason of a change in GAAP or other applicable financial accounting standards;
|
|
(o)
|
other than in connection with actions contemplated by this Agreement, adopt, approve, consent to or propose any change in
the Organizational Documents of Passage; or
|
|
(p)
|
agree or commit to do any of the foregoing.
|
|
5.3
|
Access and Investigation.
|
|
(a)
|
Subject to the terms of the Confidentiality Agreement, which the Parties agree will continue in full force following the
date of this Agreement, during the Pre-Closing Period, upon reasonable notice, Passage, on the one hand, and Remix, on the other hand, shall and shall use commercially reasonable efforts to cause such Party’s Representatives to: (i)
provide the other Party and such other Party’s Representatives with reasonable access during normal business hours to such Party’s Representatives, personnel, property and assets and to all existing books, records, Tax Returns, work
papers and other documents and information relating to such Party and its Subsidiaries, (ii) provide the other Party and such other Party’s Representatives with such copies of the existing books, records, Tax Returns, work papers,
product data, and other documents and information relating to such Party and its Subsidiaries, and with such additional financial, operating and other data and information regarding such Party and its Subsidiaries as the other Party
may reasonably request, (iii) permit the other Party’s officers and other employees to meet, upon reasonable notice and during normal business hours, with the chief financial officer and other officers and managers of such Party
responsible for such Party’s financial statements and the internal controls of such Party to discuss such matters as the other Party may deem reasonably necessary or appropriate, in each case of clauses (i), (ii) and (iii), solely for
the purpose of consummating the Contemplated Transactions, and (iv) provide the other Party with copies of any material notice, report or other document filed with or sent to or received from any Governmental Authority in connection
with the Contemplated Transactions. Any investigation conducted by either Passage or Remix pursuant to this Section 5.3 shall be conducted in such manner as not to interfere unreasonably with the conduct of the business of the
other Party.
|
|
(b)
|
Notwithstanding anything herein to the contrary in this Section 5.3, no access or examination contemplated by this
Section 5.3 shall be permitted to the extent that it would (i) require any Party or its Subsidiaries to waive the attorney-client privilege or attorney work product privilege, (ii) result in the disclosure of any trade secrets
of any Party or any of its Subsidiaries, (iii) result in the disclosure of any documents or information reasonably pertinent to any adverse Legal Proceeding between Remix or any of its Affiliates, on the one hand, and Passage or any
of its Affiliates, on the other hand, or (iv) violate any applicable Law or the terms or conditions of any Remix Contract or Passage Contract (the exceptions set forth in clauses (i)-(iv), collectively, the “Access Exceptions”); provided that such Party or its Subsidiary (A) shall be entitled to withhold only such information that may not be provided without causing such violation,
disclosure or waiver, (B) shall provide to the other Party all related information that may be provided without causing such violation, disclosure or waiver (including, to the extent permitted, redacted versions of any such
information) and (C) shall enter into such effective and appropriate joint-defense agreements or other protective arrangements as may be reasonably requested by the other Party in order that all such information may be provided to the
other Party without causing such violation, disclosure or waiver (the requirements set forth in clauses (A)-(C), collectively, the “Access Exception Efforts”).
|
|
5.4
|
No Solicitation.
|
|
(a)
|
Each of Passage and Remix agrees that, during the Pre-Closing Period, neither it nor any of its Subsidiaries shall, nor
shall it or any of its Subsidiaries authorize or permit any of its Representatives to, directly or indirectly: (i) solicit, initiate or knowingly encourage, induce or facilitate the communication, making, submission or announcement of
any Acquisition Proposal or Acquisition Inquiry or take any action that could
|
|
(b)
|
Notwithstanding anything contained in Section 5.4(a) and subject to compliance with Section 5.4(a), prior
to the approval of this Agreement by Passage’s stockholders (i.e., the Required Passage Stockholder Vote), Passage may furnish non-public information regarding Passage and its Subsidiaries to, and enter into discussions or
negotiations with, any Person in response to a bona fide written Acquisition Proposal of Passage which the Passage Board determines in good faith, after consultation with Passage’s financial advisors and outside legal counsel,
constitutes, or is reasonably likely to result in, a Superior Offer (and is not withdrawn) if: (A) neither Passage nor any Representative of Passage shall have breached Section 5.4(a) in any material respect, (B) the Passage
Board concludes in good faith based on the advice of outside legal counsel, that the failure to take such action would reasonably be expected to result in a breach of the fiduciary duties of the Passage Board under applicable Law, (C)
Passage gives Remix prior written notice of Passage’s intention to furnish non-public information to, or enter into discussions with, such Person, (D) Passage receives from such Person an executed Acceptable Confidentiality Agreement
and (E) substantially concurrently with furnishing any such non-public information to such Person, Passage furnishes such non-public information to Remix (to the extent such information has not been previously furnished by Passage to
Remix). Without limiting the generality of the foregoing, Passage acknowledges and agrees that, in the event any Representative of Passage takes any action in its capacity as a Representative of Passage that, if taken by Passage,
would constitute a breach of Section 5.4(a) by Passage, the taking of such action by such Representative shall be deemed to constitute a breach of Section 5.4(a) by Passage for purposes of this Agreement.
|
|
(c)
|
Notwithstanding anything contained in Section 5.4(a) and subject to compliance with Section 5.4(a), prior
to the approval of this Agreement by Remix’s stockholders (i.e., the Required Remix Stockholder Vote), Remix may furnish non-public information regarding Remix and its Subsidiaries to, and enter into discussions or negotiations with,
any Person in response to a bona fide written Acquisition Proposal of Remix which the Remix Board determines in good faith, after consultation with Remix’s financial advisors and outside legal counsel, constitutes, or is reasonably
likely to result in, a Superior Offer (and is not withdrawn) if: (A) neither Remix nor any Representative of Remix shall have breached Section 5.4(a) in any material respect, (B) the Remix Board concludes in good faith based
on the advice of outside legal counsel, that the failure to take such action would reasonably be expected to result in a breach of the fiduciary duties of the Remix Board under applicable Law, (C) Remix gives Passage prior written
notice of Remix’s intention to furnish non-public information to, or enter into discussions with, such Person, (D) Remix receives from such Person an executed Acceptable Confidentiality Agreement and (E) substantially concurrently
with furnishing any such non-public information to such Person, Remix furnishes such non-public information to Passage (to the extent such information has not been previously furnished by Remix to Passage). Without limiting the
generality of the foregoing, Remix acknowledges and agrees that, in the event any Representative of Remix takes any action in its capacity as a Representative of Remix that, if taken by Remix, would constitute a breach of Section 5.4(a)
by Remix, the taking of such action by such Representative shall be deemed to constitute a breach of Section 5.4(a) by Remix for purposes of this Agreement.
|
|
(d)
|
If any Party or any Representative of such Party receives an Acquisition Proposal or Acquisition Inquiry at any time during
the Pre-Closing Period, then such Party shall promptly (and in no event later than one Business Day after such Party becomes aware of such Acquisition Proposal or Acquisition Inquiry) advise the other Party orally and in writing of
such Acquisition Proposal or Acquisition Inquiry (including the identity of the Person making or submitting such Acquisition Proposal or Acquisition Inquiry, and provide a copy of
|
|
(e)
|
Each Party shall immediately cease and cause to be terminated any existing discussions, negotiations and communications
with any Person that relate to any Acquisition Proposal or Acquisition Inquiry as of the date of this Agreement and request the destruction or return of any non-public information provided to such Person.
|
|
5.5
|
Notification of Certain Matters. During the Pre-Closing Period, each of Remix, on the one hand, and Passage, on the
other hand, shall promptly notify the other (and, if in writing, furnish copies of) if any of the following occurs: (i) any notice or other communication is received from any Person alleging that the Consent of such Person is or may
be required in connection with any of the Contemplated Transactions, (ii) any Legal Proceeding against or involving or otherwise affecting such Party or its Subsidiaries is commenced, or, to the Knowledge of such Party, threatened
against such Party or, to the Knowledge of such Party, any director, officer or Key Employee of such Party, (iii) such Party becomes aware of any inaccuracy in any representation or warranty made by such Party in this Agreement or
(iv) the failure of such Party to comply with any covenant or obligation of such Party; in each case that could reasonably be expected to make the timely satisfaction of any of the conditions set forth in Article VI impossible
or materially less likely. No such notice shall be deemed to supplement or amend the Remix Disclosure Schedule or the Passage Disclosure Schedule for the purpose of (A) determining the accuracy of any of the representations and
warranties made by Remix or Passage in this Agreement or (B) determining whether any condition set forth in Article VI has been satisfied. Any failure by either Party to provide notice pursuant to this Section 5.5
shall not be deemed to be a breach for purposes of Section 6.2(b) or 6.3(b), as applicable, unless such failure to provide such notice was knowing and intentional.
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5.6
|
Legacy Asset Disposition
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(a)
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Prior to the Closing Date, Passage shall be entitled, but under no obligation, to sell, transfer, license, assign or
otherwise divest any or all of the assets and rights primarily relating to Passage’s full AAV particle purification method or other inventions generated by Passage Bio in connection with its PBFT02 clinical studies (the “Legacy Assets”) in a transaction or series of transactions (the “Legacy Asset Disposition”); provided that Passage
(i) keeps Remix reasonably informed with respect to the status and terms of any potential Legacy Asset Disposition, (ii) does not provide any non-public information of Passage to any third parties unless such third party has executed
an Acceptable Confidentiality Agreement, (iii) furnishes such non-public information to be provided such third party to Remix (to the extent such information has not been previously furnished by Passage to Remix) substantially
concurrently with furnishing any such non-public information to such third party, (iv) provides Remix with a copy of any definitive agreement providing for a Legacy Asset Disposition at least five Business Days prior to entry into
such agreement and (v) as promptly as practicable after the consummation of any Legacy Asset Disposition, notifies Remix of any such consummation. Passage may not enter into any agreement with respect to the Legacy Asset Disposition
that would result in a continuing obligation or liability to Passage, the Surviving Corporation or any of their respective Affiliates without the prior written consent of Remix (which consent shall not be unreasonably withheld,
conditioned or delayed). Each Party acknowledges that Passage may, in contemplation of the Legacy Asset Disposition, (A) establish one or more Subsidiaries to hold the Legacy Assets, (B) transfer to any such Subsidiary any or all of
the Legacy Assets and the liabilities and obligations related thereto and (C) take such other steps that are reasonably necessary to prepare for the Legacy Asset Disposition. If Passage transfers the Legacy Assets to one or more
Subsidiaries, the terms of this Section 5.6(a) shall apply to such Subsidiaries in addition to Passage. Each Party further acknowledges that Passage may not be successful in completing, or may determine not to proceed, with
the Legacy Asset Disposition.
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(b)
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For the avoidance of doubt, any sale, transfer, license, assignment or other divestiture of Legacy Assets on or after the
Closing Date shall be governed by the terms and conditions of the CVR Agreement.
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5.7
|
Registration Statement; Proxy Statement
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(a)
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As promptly as practicable (but in any event, no later than twenty (20) Business Days) after the date of this Agreement,
(i) Passage, in cooperation with Remix, shall prepare and file with the SEC a proxy statement
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(b)
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Passage covenants and agrees that the Registration Statement (and the letter to stockholders, notice of meeting and form of
proxy included therewith) will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements made therein, in light of the
circumstances under which they were made, not misleading. Remix covenants and agrees that the information supplied by or on behalf of Remix and its Subsidiaries to Passage for inclusion in the Registration Statement (including the
Remix Audited Financial Statements) will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make such information, in light of the
circumstances under which they were made, not misleading. Notwithstanding the foregoing, Passage makes no covenant, representation or warranty with respect to statements made in the Registration Statement (and the letter to
stockholders, notice of meeting and form of proxy included therewith) based on information provided by Remix or its Subsidiaries or any of their Representatives for inclusion therein. Remix and its legal counsel shall be given
reasonable opportunity to review and comment on the Registration Statement, including all amendments and supplements thereto, prior to the filing thereof with the SEC, and on the response to any comments on the SEC prior to the filing
thereof with the SEC; provided, however, that the foregoing shall not apply to any amendment to the Registration Statement pertaining to a Passage
Board Adverse Recommendation Change. Each of the Parties shall use commercially reasonable efforts to cause the Registration Statement to comply with the applicable rules and regulations promulgated by the SEC, to respond promptly to
any comments of the SEC or its staff and to have the Registration Statement declared effective under the Securities Act as promptly as practicable after it is filed with the SEC.
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(c)
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Each of the Parties shall use commercially reasonable efforts to cause the Proxy Statement to be mailed to Passage’s
stockholders as promptly as practicable after the Registration Statement is declared effective under the Securities Act. If Passage, any Merger Sub or Remix become aware of any event or information that, pursuant to the Securities Act
or the Exchange Act, should be disclosed in an amendment or supplement to the Registration Statement or Proxy Statement, as the case may be, then such Party, as the case may be, shall promptly inform the other Parties thereof and
shall cooperate with such other Parties in filing such amendment or supplement with the SEC and, if appropriate, in mailing such amendment or supplement to the Passage stockholders.
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(d)
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Remix shall reasonably cooperate with Passage and provide, and cause its Representatives to provide, Passage and its
Representatives, with all true, correct and complete information regarding Remix and its Subsidiaries that is required by Law to be included in the Registration Statement or reasonably requested by Passage to be included in the
Registration Statement. Remix will use commercially reasonable efforts to cause Remix’s independent accounting firm to deliver any consent that Passage is required to file with the SEC with respect to the inclusion of the independent
accounting firm’s opinion on the audited financial statements of Remix in any filing of the Registration Statement with the SEC.
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5.8
|
Remix Stockholder Written Consent.
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(a)
|
Promptly after the Registration Statement has been declared effective under the Securities Act, and in any event no later
than two (2) Business Days thereafter, Remix shall prepare, with the cooperation of Passage, and cause to be distributed to its stockholders the Remix Stockholder Written Consent, which shall include a copy of the Proxy Statement and
a statement to the effect that the Remix Board recommended that Remix’s
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(b)
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Promptly following receipt of the Required Remix Stockholder Vote, Remix shall prepare and mail a notice to every
stockholder of Remix that did not execute the Remix Stockholder Written Consent, which shall include a copy of the Proxy Statement (the “Information Statement”). The Information Statement shall
(i) provide the stockholders of Remix to whom it is sent with notice of the actions taken in the Remix Stockholder Written Consent, including the adoption and approval of this Agreement, the Mergers and the other Contemplated
Transactions in accordance with Section 228(e) of Delaware Law and Remix’s Organizational Documents and (ii) contain the notice of availability of appraisal rights and related disclosure required by Section 262 of Delaware Law.
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(c)
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Remix agrees that, subject to Section 5.8(d): (i) the Remix Board shall recommend that the holders of Remix Capital
Stock vote to adopt and approve this Agreement and the Contemplated Transactions, including the Mergers, the Remix Preferred Stock Conversion, and the Remix Charter Amendment, as required under Delaware Law and Remix’s Organizational
Documents (the “Remix Stockholder Matters”) and shall use commercially reasonable efforts to solicit such approval within the timeframe set forth in Section 5.8(a), (ii) the Remix
Stockholder Written Consent Materials shall include the Remix Board Recommendation and (iii) the Remix Board Recommendation shall not be withheld, amended, withdrawn or modified (and the Remix Board shall not publicly propose to
withhold, amend, withdraw or modify the Remix Board Recommendation) in a manner adverse to Passage, and no resolution by the Remix Board or any committee thereof to withdraw or modify the Remix Board Recommendation in a manner adverse
to Passage or to adopt, approve or recommend (or publicly propose to adopt, approve or recommend) any Acquisition Proposal shall be adopted or proposed (the actions set forth in the foregoing clause (iii), collectively, a “Remix Board Adverse Recommendation Change”).
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(d)
|
Notwithstanding anything to the contrary contained in Section 5.8(c), and subject to compliance with Section 5.4
and Section 5.8, if at any time prior to the approval of the Remix Stockholder Matters by the Required Remix Stockholder Vote, Remix receives a bona fide written Superior Offer, the Remix Board may make a Remix Board Adverse
Recommendation Change if, but only if, in the receipt of and on account of such Superior Offer, (i) the Remix Board determines in good faith, after consultation with its outside legal counsel, that the failure to make a Remix Board
Adverse Recommendation Change would reasonably be expected to be inconsistent with its fiduciary duties under applicable Law, (ii) Remix has, and has caused its financial advisors and outside legal counsel to, during the Notice
Period, negotiate with Passage in good faith to make such adjustments to the terms and conditions of this Agreement so that such Acquisition Proposal ceases to constitute a Superior Offer and (iii) if after Passage shall have
delivered to Remix a written offer to alter the terms or conditions of this Agreement during the Notice Period (or if Passage declines to do so), the Remix Board shall have determined in good faith, after consultation with its outside
legal counsel, that the failure to withhold, amend, withdraw or modify the Remix Board Recommendation would reasonably be expected to be inconsistent with its fiduciary duties under applicable Law (after taking into account such
alterations of the terms and conditions of this Agreement, if any); provided that (x) Passage receives written notice from Remix confirming that the Remix Board has determined to change its
recommendation during the Notice Period, which notice shall include written copies of any relevant proposed transaction agreements with any party making a potential Superior Offer, (y) during any Notice Period, Passage shall be
entitled to deliver to Remix one or more counterproposals to such Acquisition Proposal and Remix will, and cause its Representatives to, negotiate with Passage in good faith (to the extent Passage desires to negotiate) to make such
adjustments in
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(e)
|
Subject to Section 8.1, Remix’s obligation to solicit the consent of its stockholders to sign the Remix Stockholder
Written Consent in accordance with Section 5.8(a) shall not be limited or otherwise affected by the commencement, disclosure, announcement or submission of any Superior Offer or other Acquisition Proposal or Acquisition
Inquiry, or by any Remix Board Adverse Recommendation Change.
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5.9
|
Passage Stockholder Meeting.
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|
(a)
|
Passage shall take all action necessary under applicable Law to call, give notice of and hold a meeting of the holders of
Passage Common Stock to consider and vote to approve this Agreement and the Contemplated Transactions, including the issuance of the shares of Passage Common Stock to the stockholders of Remix pursuant to the terms of this Agreement (i.e., the Nasdaq Issuance Proposal) and the adoption of the Amended and Restated Passage Charter, and, if the Passage Board determines to complete the
Reverse Stock Split, an amendment to Passage’s certificate of incorporation to effect the Reverse Stock Split (the “Reverse Stock Split Proposal”) (collectively, the “Passage Stockholder Matters” and such meeting, the “Passage Stockholder Meeting”). The Passage Stockholder Meeting shall be held as
promptly as practicable after the date that the Registration Statement is declared effective under the Securities Act, and in any event no later than forty-five (45) days after the effective date of the Registration Statement. Passage
shall take reasonable measures to ensure that all proxies solicited in connection with the Passage Stockholder Meeting are solicited in compliance with all applicable Law. Notwithstanding anything to the contrary contained herein, if
on the date of the Passage Stockholder Meeting, or a date preceding the date on which the Passage Stockholder Meeting is scheduled, Passage reasonably believes that (i) it will not receive proxies sufficient to obtain the Required
Passage Stockholder Vote, whether or not a quorum would be present or (ii) it will not have sufficient shares of Passage Common Stock represented (whether in person or by proxy) to constitute a quorum necessary to conduct the business
of the Passage Stockholder Meeting, Passage may postpone or adjourn, or make one or more successive postponements or adjournments of, the Passage Stockholder Meeting as long as the date of the Passage Stockholder Meeting is not
postponed or adjourned more than an aggregate of thirty (30) calendar days in connection with any postponements or adjournments.
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(b)
|
Passage agrees that, subject to Section 5.9(c): (i) the Passage Board shall recommend that the holders of Passage
Common Stock vote to approve the Passage Stockholder Matters and shall use commercially reasonable efforts to solicit such approval within the timeframe set forth in Section 5.9(a) above, (ii) the Proxy Statement shall include
a statement to the effect that the Passage Board recommends that Passage’s stockholders vote to approve the Passage Stockholder Matters (the recommendation of the Passage Board being referred to as the “Passage Board Recommendation”) and (iii) the Passage Board Recommendation shall not be withheld, amended, withdrawn or modified (and the Passage Board shall not publicly propose to withhold, amend, withdraw or modify
the Passage Board Recommendation) in a manner adverse to Remix, and no resolution by the Passage Board or any committee thereof to withdraw or modify the Passage Board Recommendation in a manner adverse to Remix or to adopt, approve
or recommend (or publicly propose to adopt, approve or recommend) any Acquisition Proposal shall be adopted or proposed (the actions set forth in the foregoing clause (iii), collectively, a “Passage
Board Adverse Recommendation Change”).
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(c)
|
Notwithstanding anything to the contrary contained in Section 5.9(b), and subject to compliance with Section 5.4
and Section 5.9, if at any time prior to the approval of Passage Stockholder Matters by the Required Passage Stockholder Vote, Passage receives a bona fide written Superior Offer, the Passage Board may make a Passage Board
Adverse Recommendation Change if, but only if, in the receipt of and on account of such Superior Offer, (i) the Passage Board determines in good faith, after consultation with its outside legal counsel, that the failure to make a
Passage Board Adverse Recommendation Change would reasonably be expected to be inconsistent with its fiduciary duties under applicable Law, (ii) Passage has, and has caused its
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(d)
|
Passage’s obligation to call, give notice of and hold the Passage Stockholder Meeting in accordance with Section 5.9(a)
shall not be limited or otherwise affected by the commencement, disclosure, announcement or submission of any Superior Offer or Acquisition Proposal, or by any withdrawal or modification of the Passage Board Recommendation.
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(e)
|
Nothing contained in this Agreement shall prohibit Passage or the Passage Board from (i) complying with Rules 14d-9 and
14e-2(a) promulgated under the Exchange Act; provided, however, that any disclosure made by Passage or the Passage Board pursuant to Rules 14d-9 and
14e-2(a) shall be limited to a statement that Passage is unable to take a position with respect to the bidder’s tender offer unless the Passage Board determines in good faith, after consultation with its outside legal counsel, that
such statement would result in a breach of its fiduciary duties under applicable Law, (ii) informing any Person of the existence of the provisions contained in Section 5.4 or (iii) making any disclosure that the Passage Board
(or a committee thereof), after consultation with its outside legal counsel, has determined in good faith is required by applicable Law or by any listing or trading rules or regulations of Nasdaq; provided
that, in the case of (iii), Passage shall provide Remix with a reasonable opportunity to review any such disclosure prior to the making thereof (to the extent practicable) and shall consider in good faith any comments from Remix
thereto; provided, further, that any such disclosures (other than a “stop, look and listen” communication or similar communication of the type
contemplated by Section 14d-9(f) under the Exchange Act) that constitutes a Passage Board Adverse Recommendation Change shall be subject to Section 5.9(c).
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5.10
|
Efforts; Regulatory Approvals.
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|
(a)
|
The Parties shall use commercially reasonable efforts to consummate the Contemplated Transactions. Without limiting the
generality of the foregoing, each Party: (i) shall make all filings and other submissions (if any) and give all notices (if any) required to be made and given by such Party in connection with the Contemplated Transactions, (ii) shall
use commercially reasonable efforts to obtain each Consent (if any) reasonably required to be obtained (pursuant to any applicable Law or Contract, or otherwise) by such Party in connection with the Contemplated Transactions or for
such Contract to remain in full force and effect, (iii) shall use commercially reasonable efforts to obtain and maintain as promptly as practicable the expiration or termination of any applicable waiting period under any applicable
antitrust, competition, investment or similar Laws, (iv) shall use commercially reasonable efforts to lift any injunction prohibiting, or any other legal bar to, the Contemplated Transactions and (v) shall use commercially reasonable
efforts to satisfy the conditions precedent to the consummation of this Agreement.
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(b)
|
Notwithstanding the generality of the foregoing, each Party shall use commercially reasonable efforts to file
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(c)
|
In connection with, and without limiting, the efforts referenced in Section 5.10(a), Passage and Remix shall (i)
furnish, or cause to be furnished, to the other Party, such necessary information and reasonable assistance as the other Party may request in connection with its preparation of any filing or submission that is required to be filed by
such Party to any Governmental Authority with respect to the Contemplated Transactions (subject to clause (i) of the definition of Access Exceptions and the requirements of the Access Exception Efforts), (ii) permit the other Party
and its counsel to review any filing or submission prior to forwarding to the Governmental Authorities (except where such material is reasonably determined by a Party to be competitively sensitive to such Party in which case it will
be provided, subject to applicable Law, to the other Party’s counsel on an “external counsel only” basis) and consider in good faith any comments made by such other Party, (iii) keep each other reasonably apprised of the status of,
and provide the other Party with copies of (to the extent made in writing), any communications with, and any inquiries or requests for additional information from, any Governmental Authorities and comply as promptly as practicable
with any such inquiry or request and (iv) not participate in any meeting or discussion, either in person or by telephone or videoconference, with any Governmental Authority in connection with the Contemplated Transactions, unless
(A) it provides the other Party with reasonable advance notice and (B) gives the other Party and its counsel the opportunity to attend and participate; provided that a Party shall not be
required to give the other Party the opportunity to attend and participate to the extent prohibited by such Governmental Authority.
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5.11
|
Disclosures. Without limiting any Party’s obligations under the Confidentiality Agreement, no Party shall, and no
Party shall permit any of its Subsidiaries or any of its Representative to, issue any press release or make any disclosure (to any customers or employees of such Party, to the public or otherwise) regarding the Contemplated
Transactions unless: (a) the other Party shall have approved such press release or disclosure in writing, such approval not to be unreasonably conditioned, withheld or delayed; or (b) such Party shall have determined in good faith,
upon the advice of outside legal counsel, that such disclosure is required by applicable Law and, to the extent practicable, before such press release or disclosure is issued or made, such Party advises the other Party of, and
consults with the other Party regarding, the text of such press release or disclosure; provided, however, that each of Remix and Passage may make any
statement in response to questions by the press, analysts, investors or those attending industry conferences or financial analyst conference calls, so long as any such statements are consistent with previous press releases, public
disclosures or public statements made by Remix and Passage in compliance with this Section 5.11. Notwithstanding the foregoing, a Party need not consult with any other Parties in connection with such portion of any press
release, public statement or filing to be issued or made with respect to (i) an Acquisition Proposal, (ii) a Passage Board Adverse Recommendation Change with respect to Passage only pursuant to Section 5.9(e) or (iii) a Remix
Board Adverse Recommendation Change with respect to Remix.
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5.12
|
Passage Options. Prior to the Closing, the Passage Board shall adopt appropriate resolutions and take all other
actions necessary and appropriate to cause the vesting and exercisability of each unexpired, unexercised and unvested Passage Option to be accelerated in full, effective as of immediately prior to the Initial Effective Time. Following
the Closing, each unexpired and unexercised Passage Option shall continue on the same terms and conditions in effect as of immediately prior to the Initial Effective Time.
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5.13
|
Passage Restricted Stock Unit Awards. Prior to the record date for the Pre-Closing Distribution, the Passage Board
shall have adopted appropriate resolutions and taken all other actions necessary and appropriate to provide that (a) the vesting of each outstanding and unvested Passage Restricted Stock Unit Award shall be accelerated in full
effective as of no later than the day immediately prior to the record date for the Pre-Closing Distribution, and (b) for each outstanding and unsettled Passage Restricted Stock Unit Award, the holder thereof shall receive, no later
than the day immediately prior to the record date for the Pre-Closing Distribution, a number of shares of Passage Common Stock equal to the number of vested and unsettled shares of Passage Common Stock underlying such Passage
Restricted Stock Unit Award. Notwithstanding anything herein to the contrary, the Tax withholding obligations for each holder receiving shares of Passage Common Stock in accordance with the preceding sentence shall be satisfied
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5.14
|
Passage ESPP. As soon as reasonably practicable (and within five days) following the date of this Agreement, the
Passage Board shall adopt appropriate resolutions and take all other necessary actions to provide that (a) no new offering periods or purchase periods under the Passage ESPP shall be commenced and (b) the Passage ESPP shall be
terminated effective on the day prior to the Closing Date.
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5.15
|
Indemnification of Officers and Directors
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|
(a)
|
From the Initial Effective Time through the sixth anniversary of the date on which the Initial Effective Time occurs (or,
if a D&O Indemnified Party (defined below) asserts a claim for indemnification or other protections pursuant to this Section 5.15 prior to the end of such six-year period, then until the date that such claim is resolved
and all Costs associated therewith have been indemnified), each of Passage and the Surviving Corporation shall indemnify and hold harmless each person who is now, or has been at any time prior to the date hereof, or who becomes prior
to the Initial Effective Time, a director or officer of Passage or Remix, respectively (the “D&O Indemnified Parties”), against all claims, losses, liabilities, damages, judgments, fines and
reasonable fees, costs and expenses, including attorneys’ fees and disbursements (collectively, “Costs”), incurred in connection with any claim, action, suit, proceeding or investigation,
whether civil, criminal, administrative or investigative, arising out of or pertaining to the fact that the D&O Indemnified Party is or was a director or officer of Passage or of Remix, whether asserted or claimed prior to, at or
after the Initial Effective Time, in each case, to the fullest extent permitted under Delaware Law. Each D&O Indemnified Party will be entitled to advancement of expenses incurred in the defense of any such claim, action, suit,
proceeding or investigation from each of Passage and the Surviving Corporation, jointly and severally, upon receipt by Passage or the Surviving Corporation from the D&O Indemnified Party of a request therefor; provided that any such person to whom expenses are advanced provides an undertaking to Passage, to the extent then required by Delaware Law, to repay such advances if it is ultimately determined
that such person is not entitled to indemnification.
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(b)
|
The provisions of Passage’s Organizational Documents with respect to indemnification, advancement of expenses and
exculpation of present and former directors and officers of Passage that are presently set forth in Passage’s Organizational Documents shall not be amended, modified or repealed for a period of six years from the Initial Effective
Time in a manner that would adversely affect the rights thereunder of individuals who, at or prior to the Initial Effective Time, were officers or directors of Passage, unless such modification is required by applicable Law. The
Surviving Corporation’s Organizational Documents shall contain, and Passage shall cause the certificate of incorporation of the Surviving Corporation to so contain, provisions no less favorable with respect to indemnification,
advancement of expenses and exculpation of present and former directors and officers as those presently set forth in Remix’s Organizational Documents.
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(c)
|
From and after the Initial Effective Time, (i) the Surviving Corporation shall fulfill and honor in all respects the
obligations of Remix to its D&O Indemnified Parties as of immediately prior to the Closing pursuant to any indemnification provisions under Remix’s Organizational Documents and pursuant to any indemnification agreements between
Remix and such D&O Indemnified Parties, with respect to claims arising out of matters occurring at or prior to the Initial Effective Time and (ii) Passage shall fulfill and honor in all respects the obligations of Passage to its
D&O Indemnified Parties as of immediately prior to the Closing pursuant to any indemnification provisions under Passage’s Organizational Documents and pursuant to any indemnification agreements between Passage and such D&O
Indemnified Parties, with respect to claims arising out of matters occurring at or prior to the Initial Effective Time.
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(d)
|
From and after the Initial Effective Time, Passage shall maintain directors’ and officers’ liability insurance policies,
with an effective date as of the Closing Date, on commercially available terms and conditions and with coverage limits customary for U.S. public companies similarly situated to Passage. In addition, Passage shall purchase, prior to
the Initial Effective Time, a six-year prepaid “D&O tail policy” for the non-cancellable extension of directors’ and officers’ liability coverage of Passage’s existing directors’ and
officers’ insurance policies for a claims reporting or discovery period of at least six years from and after the
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(e)
|
The provisions of this Section 5.15 are intended to be in addition to the rights otherwise available to the current
and former officers and directors of Passage and Remix by Law, charter, statute, bylaw or agreement, and shall operate for the benefit of, and shall be enforceable by, each of the D&O Indemnified Parties, their heirs and their
Representatives.
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(f)
|
In the event Passage or the Surviving Corporation or any of their respective successors or assigns (i) consolidates with or
merges into any other Person and shall not be the continuing or surviving corporation or entity of such consolidation or merger or (ii) transfers all or substantially all of its properties and assets to any Person, then, and in each
such case, proper provision shall be made so that the successors and assigns of Passage or the Surviving Corporation, as the case may be, shall succeed to the obligations set forth in this Section 5.15. Passage shall cause the
Surviving Corporation to perform all of the obligations of the Surviving Corporation under this Section 5.15.
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5.16
|
Tax Matters.
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|
(a)
|
All transfer, documentary, sales, use, stamp, registration, excise, recording, registration value added and other such
similar Taxes and fees (including any penalties and interest) that become payable in connection with or by reason of the execution of this Agreement and the transactions contemplated hereby (collectively, “Transfer Taxes”) shall be borne and paid 50% by Passage and 50% by Remix. The Person required by applicable law shall timely file any Tax Return or other document with respect to such Transfer Taxes.
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(b)
|
At the Closing, Remix shall deliver to Passage a certificate pursuant to Treasury Regulations Sections 1.1445-2(c) and
1.897-2(h), together with a form of notice to the IRS in accordance with the requirements of Treasury Regulations Section 1.897-2(h), in each case, in form and substance reasonably acceptable to Passage; provided, however, that Passage’s only remedy for Remix’s failure to provide such form or certificate will be to withhold from the payments to be made pursuant to this
Agreement any required withholding Tax under Section 1445 of the Code, and Remix’s failure to provide any such form or certificate will not be deemed to be a failure of the conditions set forth in Article VI to have been met.
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(c)
|
The parties intend that, for United States federal income tax purposes, the Mergers, taken together, will qualify for the
Intended Tax Treatment. The Mergers shall be reported by the parties for all Tax purposes in accordance with the foregoing, unless otherwise required by a Governmental Authority as a result of a “determination” within the meaning of
Section 1313(a) of the Code. The parties shall cooperate with each other and their respective counsel to document and support the Tax treatment of the Mergers as qualifying for the Intended Tax Treatment.
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(d)
|
If, in connection with the preparation and filing of the Registration Statement or any other filing required by applicable
Law or the SEC’s review thereof, the SEC requests or requires that a tax opinion with respect to the U.S. federal income tax consequences of the Mergers and the Intended Tax Treatment be prepared and submitted (a “Tax Opinion”), (i) Passage and Remix shall each use their respective reasonable best efforts to deliver to Fenwick & West LLP, counsel to Passage, and to Latham & Watkins LLP, counsel to
Remix, customary Tax representation letters satisfactory to each such counsel, dated and executed as of such date(s) as determined to be reasonably necessary by each such counsel in connection with the preparation and filing of such
Registration Statement or any other filing required by applicable Law, (ii) Passage shall use its reasonable best efforts to cause Fenwick & West LLP to furnish a Tax Opinion addressed to Passage, subject to customary assumptions
and limitations, satisfactory to the SEC and (iii) Remix shall use its reasonable best efforts to cause Latham & Watkins LLP to furnish a Tax Opinion addressed to Remix, subject to customary assumptions and limitations,
satisfactory to the SEC.
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5.17
|
Listing. At or prior to the Initial Effective Time, Passage shall use commercially reasonable efforts to
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5.18
|
Legends. Passage shall be entitled to place appropriate legends on the book entries and/or certificates evidencing
any shares of Passage Common Stock to be received in the First Merger by equityholders of Remix who may be considered “affiliates” of Passage for purposes of Rules 144 and 145 under the Securities Act reflecting the restrictions set
forth in Rules 144 and 145 and to issue appropriate stop transfer instructions to the transfer agent for Passage Common Stock.
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5.19
|
Officers and Directors
|
|
(a)
|
Directors and Officers of Passage.
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(i)
|
Passage shall cause, effective as of the Initial Effective Time, the Passage Board to consist of nine individuals, each as
set forth on Section 5.19(a)(i) of the Passage Disclosure Schedule. If any individual set forth on Section 5.19(a)(i) of the Passage Disclosure Schedule is unable or unwilling to serve as a director of Passage, Remix
shall designate a successor designee.
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(ii)
|
Passage shall cause the directors and officers of Passage listed on Section 5.19(a)(ii) of the Passage Disclosure
Schedule to sign written resignations in forms reasonably satisfactory to Remix, dated on or before the Closing Date and effective as of the Initial Effective Time.
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(iii)
|
Immediately following the Initial Effective Time, Passage shall take all necessary action to appoint the officers of Remix
to become the equivalent officers of Passage until the earlier of their resignation or removal or until their respective successors are duly elected or appointed and qualified, as the case may be.
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(b)
|
Directors and Officers of the Surviving Corporation.
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(i)
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The Parties shall take all actions necessary (A) so that from and after the Initial Effective Time, the Surviving
Corporation’s board of directors shall be constituted with those members as set forth on Section 5.19(b) of the Passage Disclosure Schedule and (B) to secure the resignations of the existing members of the committees of the
Surviving Corporation, if any.
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(ii)
|
The Parties shall take all actions necessary so that the officers of Remix immediately prior to the Initial Effective Time
shall, from and after the Initial Effective Time, be the officers of the Surviving Corporation, until the earlier of their resignation or removal or until their respective successors are duly elected or appointed and qualified, as the
case may be.
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(iii)
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On the Closing Date, the Surviving Corporation shall enter into customary indemnification agreements reasonably
satisfactory to Remix with each individual to be appointed to, or serving on, the board of directors of the Surviving Corporation upon the Closing, which indemnification agreements shall continue to be effective following the Closing.
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5.20
|
Termination of Certain Agreements and Rights. Remix shall cause any stockholder agreements, voting agreements,
registration rights agreements, co-sale agreements and any other similar Contracts between
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5.21
|
Section 16 Matters. Prior to the Initial Effective Time, Passage shall take all such steps as may be required to
cause any acquisitions of Passage Common Stock and any options to purchase Passage Common Stock in connection with the Contemplated Transactions, by each individual who is reasonably expected to become subject to the reporting
requirements of Section 16(a) of the Exchange Act with respect to Passage, to be exempt under Rule 16b-3 promulgated under the Exchange Act.
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5.22
|
Allocation Certificate
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(a)
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Remix will prepare and deliver to Passage at least two (2) Business Days prior to the Closing Date a certificate signed by
an executive officer of Remix in a form reasonably acceptable to Passage setting forth (as of immediately prior to the Initial Effective Time) (a) each holder of Remix Capital Stock (after giving effect to the Remix Preferred Stock
Conversion, the Remix Convertible Notes Conversion and the treatment of the Remix Warrants in accordance with their terms and conditions), (b) such holder’s name and address, (c) the number and type of Remix Capital Stock held as of
the Closing Date for each such holder, (d) the number of shares of Passage Common Stock to be issued to such holder pursuant to this Agreement in respect of the Remix Capital Stock held by such holder as of immediately prior to the
Initial Effective Time, and (e) each investor in the Concurrent Financing, the total investment to be made by such investor in the Concurrent Financing, the percentage of the Concurrent Financing Proceeds represented by such
stockholder’s investment in the Concurrent Financing, and the number of shares of Passage Common Stock to be issued to such holder pursuant to this Agreement (the “Allocation Certificate”). For
the avoidance of doubt, the Allocation Certificate shall be prepared in good faith, in accordance with the Organizational Documents of Remix and contracts applicable to Remix Capital Stock, Remix Options and Remix Warrants, and shall
show each holder’s percentage ownership interest in Remix on a fully diluted basis.
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(b)
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Passage will prepare and deliver to Remix at least two (2) Business Days prior to the Closing Date a certificate signed by
an executive officer of Passage in a form reasonably acceptable to Remix setting forth (as of immediately prior to the Initial Effective Time) the Passage Outstanding Shares (the “Passage Outstanding
Shares Certificate”).
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5.23
|
Obligations of Merger Subs. Passage will take all action necessary to cause each Merger Sub to perform its
obligations under this Agreement and to consummate the Mergers on the terms and conditions set forth in this Agreement.
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5.24
|
Takeover Statutes. If any takeover statute is or may become applicable to the Contemplated Transactions, each of
Remix, the Remix Board, Passage and the Passage Board, as applicable, shall grant such approvals and take such actions as are necessary, to the extent permitted by Law, so that the Contemplated Transactions may be consummated as
promptly as practicable on the terms contemplated by this Agreement and otherwise act to eliminate or minimize the effects of such statute or regulation on the Contemplated Transactions.
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|
5.25
|
Stockholder Litigation. Prior to the Initial Effective Time, Passage shall provide Remix with reasonably prompt
notice of any stockholder litigation against Passage or any of its directors relating to this Agreement or the Contemplated Transactions (“Transaction Litigation”), including by providing copies
of all pleadings with respect thereto, and shall keep Remix reasonably informed with respect to the status thereof. Prior to the Initial Effective Time, Passage will, to the extent that the attorney-client privilege is not undermined
or otherwise adversely affected, (a) provide Remix the opportunity to review and propose comments with respect to all filings, pleadings and responses proposed to be filed or submitted by or on behalf of Passage prior to such filing
or submission, and Passage shall consider such comments in good faith, (b) give Remix a reasonable opportunity to review in advance all materials proposed to be delivered by or on behalf of Passage in connection with any discovery or
document production with respect to such Transaction Litigation, (c) give Remix the right to participate in the defense, settlement or prosecution of any Transaction Litigation and (d) reasonably consult with Remix with respect to the
defense, settlement and prosecution of any Transaction Litigation. Passage may not compromise or settle, or come to an arrangement regarding, or agree to compromise, settle or come to an
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5.26
|
Concurrent Financing.
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(a)
|
Subject to the terms and conditions of this Agreement, Remix shall use commercially reasonable efforts to obtain the
Concurrent Financing on the terms and conditions described in the Subscription Agreement and satisfy the conditions to the Concurrent Financing as described in the Subscription Agreement and shall not permit any termination, amendment
or modification to be made to, or any waiver of any provision under, or any replacement of, the Subscription Agreement if such termination, amendment, modification, waiver or replacement (i) reduces the aggregate amount of the
Concurrent Financing or (ii) imposes new or additional conditions or otherwise expands, amends or modifies any of the conditions to the receipt of the Concurrent Financing, or otherwise expands, amends or modifies any other provision
of the Subscription Agreement, in a manner that would reasonably be expected to (x) delay or prevent the funding of the Concurrent Financing (or satisfaction of the conditions to the Concurrent Financing) at or substantially
simultaneously with the Closing or (y) adversely impact the ability of Remix to enforce its rights against other parties to the Subscription Agreement. Remix shall promptly deliver to Passage copies of any such termination, amendment,
modification, waiver or replacement.
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(b)
|
Remix shall use commercially reasonable efforts (i) to maintain in effect the Subscription Agreement, (ii) to enforce its
rights under the Subscription Agreement and (iii) to comply with its obligations under the Subscription Agreement.
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(c)
|
Remix shall give Passage prompt notice (i) of any breach or default by any party to the Subscription Agreement or
definitive agreements related to the Concurrent Financing of which Remix becomes aware, (ii) of the receipt of any written notice or other written communication from any Purchaser with respect to any (x) actual breach, default,
termination or repudiation by any party to the Subscription Agreement or definitive agreements related to the Concurrent Financing of any provisions of the Subscription Agreement or definitive agreements related to the Concurrent
Financing or (y) material dispute or disagreement relating to the Concurrent Financing with respect to the obligation to fund the Concurrent Financing at or substantially simultaneously with the Closing, and (iii) if at any time for
any reason Remix believes in good faith that it will not be able to obtain all or any portion of the Concurrent Financing on the terms and conditions, in the manner or from the sources contemplated by the Subscription Agreement or
definitive agreements related to the Concurrent Financing. Remix shall promptly provide information reasonably requested by Passage relating to the circumstances referred to in clauses (i), (ii) or (iii) of the immediately preceding
sentence.
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5.27
|
Passage Equity Plans.
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|
(a)
|
Prior to the effectiveness of the Form S-4, Passage will use commercially reasonable efforts to cause the Passage Board to
adopt the 2026 Equity Incentive Plan, effective as of the Initial Effective Time and subject to the Closing and the approval of the stockholders of Passage prior to the Closing, and will include provisions in the Proxy Statement for
the stockholders of Passage to approve the 2026 Equity Incentive Plan. Subject to the approval of the 2026 Equity Incentive Plan by the stockholders of Passage prior to the Initial Effective Time, Passage shall file with the SEC,
promptly after the Initial Effective Time and at Remix’s expense, a registration statement on Form S-8 (or any successor form), if available for use by Passage, relating to the shares of Passage Common Stock issuable with respect to
the 2026 Equity Incentive Plan.
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|
(b)
|
Prior to the effectiveness of the Form S-4, Passage will use commercially reasonable efforts to cause the Passage Board to
adopt the 2026 ESPP, effective as of the Initial Effective Time and subject to the Closing and approval of the stockholders of Passage prior to the Closing, and will include provisions in the Proxy Statement for the stockholders of
Passage to approve the 2026 ESPP. Subject to the approval of the 2026
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(c)
|
For the avoidance of doubt, approval of the 2026 Plans by the stockholders of Passage shall not be a condition to Closing.
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5.28
|
Passage 401(k) Plan. Unless otherwise requested by Remix in writing at least ten (10) Business Days prior to the
Closing Date, the Passage Board or an authorized committee thereof shall take (or cause to be taken) all actions to adopt such resolutions as may be necessary or appropriate to (a) terminate, effective no later than the day prior to
the Closing Date but subject to the Closing, any Passage Employee Plan that contains a cash or deferred arrangement intended to qualify under Section 401(k) of the Code (a “Passage 401(k) Plan”)
or, if applicable, (b) withdraw as a participating employer in the Passage 401(k) Plan, spin-off the portion of the Passage 401(k) Plan maintained by Passage (the “Spun-Off Plan”) and terminate
the Spun-Off Plan, effective no later than the day prior to the Closing Date but subject to the Closing. If Passage is required to terminate any Passage 401(k) Plan or Spun-Off Plan, then Passage shall provide to Remix prior to the
Closing Date written evidence of the adoption by the Passage Board or an authorized committee thereof of resolutions authorizing the termination of such Passage 401(k) Plan or Spun-Off Plan (the form and substance of which shall be
subject to the reasonable prior review and approval of Remix).
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5.29
|
Employees. Prior to the Closing, the Passage Board shall adopt appropriate resolutions and Passage and the Passage
Board shall take all other actions necessary and appropriate to cause the employment of each employee of Passage to be terminated as of the Closing.
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5.30
|
Section 280G. As promptly as practicable (and in any event within fifteen (15) Business Days) following
the date of this Agreement, Passage shall deliver to Remix a list of each “disqualified individual” (as defined in Section 280G of the Code) of Passage and (i) Passage’s reasonable, good faith estimate of the “parachute payments”
(within the meaning of Section 280G of the Code) that could be paid to such disqualified individual as a result of any of the transactions contemplated by this Agreement (alone or in combination with any other event), (ii) the “base
amount” (as defined in Section 280G(b)(3) of the Code) for each such disqualified individual and (iii) the underlying documentation on which such calculations are based. Such information shall be updated and delivered to Remix not
later than five (5) Business Days prior to the Closing Date. From and after the date hereof, Passage shall reasonably cooperate with Remix to limit potential adverse Tax consequences under Section 280G of the Code and shall not engage
in any action outside the ordinary course of business that is primarily intended to reduce or mitigate a potential parachute payment or excise taxes under Section 280G of the Code without prior consultation with Remix, and with
respect to the valuing of any non-competition agreements or commission of any reasonable compensation studies, without the prior approval by Remix (such approval not to be unreasonably withheld, conditioned or delayed). In connection
with the foregoing, Remix shall provide Passage with any agreement, arrangement or Contract entered into or negotiated by Remix and a disqualified individual prior to the Closing Date that could reasonably be considered to be or
provide for “parachute payments” within the meaning of Section 280G of the Code and shall cooperate with the Passage in good faith in order to calculate or determine the value (for purposes of Section 280G of the Code) of any such
parachute payments.
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6.1
|
Conditions Precedent to Obligations of Each Party. The obligations of each Party to effect the Mergers and otherwise
consummate the Contemplated Transactions are subject to the satisfaction or, to the extent permitted by applicable law, the written waiver by each of the Parties, at or prior to the Closing, of each of the following conditions:
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|
(a)
|
No temporary restraining order, preliminary or permanent injunction or other Order preventing the consummation of the
Contemplated Transactions shall have been issued by any court of competent jurisdiction or other Governmental Authority of competent jurisdiction and remain in effect and there shall not be any Law which has the effect of making the
consummation of the Contemplated Transactions illegal.
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|
(b)
|
Passage shall have obtained the Required Passage Stockholder Vote.
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|
(c)
|
Remix shall have obtained the Required Remix Stockholder Vote.
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|
(d)
|
The approval of the listing of the additional shares of Passage Common Stock on Nasdaq shall have been obtained and the
shares of Passage Common Stock to be issued in the First Merger pursuant to this Agreement shall have been approved for listing (subject to official notice of issuance) on Nasdaq and the Amended and Restated Passage Charter shall have
been duly filed with the Secretary of State of the State of Delaware.
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(e)
|
The Remix Charter Amendment shall have been duly filed with the Secretary of State of the State of Delaware.
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(f)
|
The Subscription Agreement and the Remix Note Purchase Agreement (2026) shall each be in full force and effect and cash
proceeds of not less than the Concurrent Investment Amount shall have been received by Remix, or will be received by Remix prior to or substantially simultaneously with the Closing, in connection with the Concurrent Financing.
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|
(g)
|
The Passage Lock-Up Agreements and Remix Lock-Up Agreements will continue to be in full force and effect as of immediately
following the Initial Effective Time.
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|
(h)
|
The Registration Statement shall have become effective in accordance with the provisions of the Securities Act, and shall
not be subject to any stop order or proceeding seeking a stop order with respect to such Registration Statement that has not been withdrawn.
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|
(i)
|
Remix shall have effected the Remix Preferred Stock Conversion.
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|
6.2
|
Conditions Precedent to Obligations of Remix. The obligations of Remix to effect the Mergers and otherwise
consummate the Contemplated Transactions are subject to the satisfaction or, to the extent permitted by applicable law, the written waiver by Remix, at or prior to the Closing, of each of the following conditions:
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|
(a)
|
Each of the Passage Fundamental Representations shall have been true and correct in all respects as of the date of this
Agreement and shall be true and correct in all material respects on and as of the Closing Date with the same force and effect as if made on and as of such date (except to the extent such representations and warranties are specifically
made as of a particular date, in which case such representations and warranties shall be true and correct as of such date). The Passage Capitalization Representations shall have been true and correct in all respects as of the date of
this Agreement and shall be true and correct on and as of the Closing Date with the same force and effect as if made on and as of such date, except, in each case, (x) for such inaccuracies which are de minimis, individually or in the
aggregate or (y) for those representations and warranties which address matters only as of a particular date (which representations and warranties shall have been true and correct, subject to the qualifications as set forth in the
preceding clause (x), as of such particular date). The representations and warranties of Passage and the Merger Subs contained in this Agreement (other than the Passage Fundamental Representations and the Passage Capitalization
Representations) shall have been true and correct in all respects as of the date of this Agreement and shall be true and correct on and as of the Closing Date with the same force and effect as if made on the Closing Date except (i) in
each case, or in the aggregate, where the failure to be true and correct would not reasonably be expected to have a Passage Material Adverse Effect (without giving effect to any references therein to any Passage Material Adverse
Effect or other materiality qualifications) or (ii) for those representations and warranties which address matters only as of a particular date (which representations shall have been true and correct, subject to the qualifications as
set forth in the preceding clause (i), as of such particular date) (it being understood that, for purposes of determining the accuracy of such representations and warranties, any update of or modification to the Passage Disclosure
Schedule made or purported to have been made after the date of this Agreement shall be disregarded).
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|
(b)
|
Passage and Merger Subs shall have performed and complied in all material respects with all covenants and agreements
required to be performed or complied with by them under this Agreement at or prior to the Closing Date.
|
|
(c)
|
A Passage Material Adverse Effect shall not have occurred since the date of this Agreement and be continuing.
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|
(d)
|
The existing shares of Passage Common Stock shall have been continually listed on Nasdaq as of and from the date of this
Agreement through the Closing Date.
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|
(e)
|
Passage shall have delivered to Remix a certificate (the “Passage Closing Certificate”),
dated the Closing Date and signed by an executive officer of Passage, certifying to the effect that (i) the conditions set forth in Sections 6.2(a), 6.2(b) and 6.2(c) have been satisfied and (ii) the
information set forth in the Passage Outstanding Shares Certificate delivered by Passage in accordance with Section 5.22(b) is true and accurate in all respects as of the Closing Date.
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|
(f)
|
Remix shall have received true and complete copies of all documentation for each Legacy Asset Disposition reasonably
evidencing that Passage has received or will receive into one or more bank account the proceeds (or, in the case of any Legacy Asset Disposition which will be consummated substantially contemporaneously with the Closing, that such
proceeds are in irrevocably transit to Passage) of all Legacy Asset Disposition which are included in Passage’s estimated Passage Net Cash Calculation.
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|
6.3
|
Conditions Precedent to Obligations of Passage. The obligations of Passage and the Merger Subs to effect the Mergers
and otherwise consummate the Contemplated Transactions are subject to the satisfaction or, to the extent permitted by applicable law, the written waiver by Passage, at or prior to the Closing, of each of the following conditions:
|
|
(a)
|
Each of the Remix Fundamental Representations shall have been true and correct in all respects as of the date of this
Agreement and shall be true and correct in all material respects on and as of the Closing Date with the same force and effect as if made on and as of such date (except to the extent such representations and warranties are specifically
made as of a particular date, in which case such representations and warranties shall be true and correct as of such date). The Remix Capitalization Representations (disregarding any effects of the Remix Charter Amendment and the
Concurrent Financing) shall have been true and correct in all respects as of the date of this Agreement and shall be true and correct on and as of the Closing Date with the same force and effect as if made on and as of such date,
except, in each case, (x) for such inaccuracies which are de minimis, individually or in the aggregate or (y) for those representations and warranties which address matters only as of a particular date (which representations and
warranties shall have been true and correct, subject to the qualifications as set forth in the preceding clause (x), as of such particular date). The representations and warranties of Remix contained in this Agreement (other than the
Remix Fundamental Representations and the Remix Capitalization Representations) shall have been true and correct in all respects as of the date of this Agreement and shall be true and correct on and as of the Closing Date with the
same force and effect as if made on the Closing Date except (i) in each case, or in the aggregate, where the failure to be so true and correct would not reasonably be expected to have a Remix Material Adverse Effect (without giving
effect to any references therein to any Remix Material Adverse Effect or other materiality qualifications) or (ii) for those representations and warranties which address matters only as of a particular date (which representations
shall have been true and correct, subject to the qualifications as set forth in the preceding clause (i), as of such particular date) (it being understood that, for purposes of determining the accuracy of such representations and
warranties, any update of or modification to the Remix Disclosure Schedule made or purported to have been made after the date of this Agreement shall be disregarded).
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|
(b)
|
Remix shall have performed and complied in all material respects with all covenants and agreements required to be performed
or complied with by it under this Agreement at or prior to the Closing Date.
|
|
(c)
|
A Remix Material Adverse Effect shall not have occurred since the date of this Agreement and be continuing.
|
|
(d)
|
Remix shall have delivered to Passage a certificate (the “Remix Closing Certificate”), dated the Closing Date and signed by an executive officer of Remix, certifying to the effect that (i) the conditions set forth in Sections 6.3(a), 6.3(b) and 6.3(c)
have been satisfied and (ii) the information set forth in the Allocation Certificate delivered by Remix in accordance with Section 5.22(a) is true and accurate in all respects as of the Closing Date.
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|
6.4
|
Frustration of Closing Conditions. Neither Passage nor any Merger Sub may rely on the failure of any conditions set
forth in Sections 6.1 or 6.3 to be satisfied if the primary cause of such failure was the failure of Passage or any Merger Sub to perform any of its obligations under this Agreement. Remix may not rely on the failure
of any conditions set forth in Sections 6.1 or 6.2 to be satisfied if the primary cause of such failure was the failure of Remix to perform any of its obligations under this Agreement.
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|
7.1
|
Closing Deliveries of Remix. The obligations of Passage and the Merger Subs to effect the Mergers and otherwise consummate
the Contemplated Transactions are subject to Passage receiving the following documents, each of which shall be in full force and effect, or the written waiver by Passage of delivery:
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|
(a)
|
the Remix Stockholder Written Consents;
|
|
(b)
|
the Allocation Certificate; and
|
|
(c)
|
the Remix Closing Certificate.
|
|
7.2
|
Closing Deliveries of Passage. The obligations of Remix to effect the Mergers and otherwise consummate the
Contemplated Transactions are subject to Remix receiving the following documents, each of which shall be in full force and effect, or the written waiver by Remix of delivery:
|
|
(a)
|
the Passage Net Cash Schedule;
|
|
(b)
|
the Passage Closing Certificate;
|
|
(c)
|
the Passage Outstanding Shares Certificate;
|
|
(d)
|
subject to Section 2.5, the executed CVR Agreement; and
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|
(e)
|
written resignations in forms satisfactory to Remix, dated as of the Closing Date and effective as of the Closing executed
by the officers and directors of Passage who are not to continue as officers or directors of Passage pursuant to Section 5.19 hereof.
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|
8.1
|
Termination. This Agreement may be terminated, and the Mergers and the Contemplated Transactions may be abandoned at
any time prior to the Initial Effective Time, whether before or (subject to the terms hereof) after approval of the Passage Stockholder Matters by Passage’s stockholders, unless otherwise specified below:
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|
(a)
|
by mutual written consent of Passage and Remix;
|
|
(b)
|
by either Passage or Remix if the Mergers shall not have been consummated by December 24, 2026 (subject to possible
extension as provided in this Section 8.1(b), the “Outside Date”); provided, however, that the right
to terminate this Agreement under this Section 8.1(b) shall not be available to Passage or Remix if such Party’s action or failure to act has been a principal cause of the failure of the Mergers to occur on or before the
Outside Date and such action or failure to act constitutes a breach of this Agreement, provided, further, that, in the event that the SEC has not
declared effective under the Securities Act the Registration Statement by the date which is twenty-five (25) days prior to the Outside Date, then either Passage or Remix shall be entitled to extend the Outside Date for an additional
ninety (90) days;
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|
(c)
|
by either Passage or Remix if a court of competent jurisdiction or other Governmental Authority shall have issued a final
and nonappealable Order, or shall have taken any other action, having the effect of permanently restraining, enjoining or otherwise prohibiting the Contemplated Transactions;
|
|
(d)
|
by Passage if the Required Remix Stockholder Vote shall not have been obtained and evidence thereof delivered to Passage
within fifteen (15) days of the Registration Statement becoming effective in accordance with the provisions of the Securities Act; provided, however,
that once the Required Remix Stockholder Vote has been obtained, Passage may not terminate this Agreement pursuant to this Section 8.1(d);
|
|
(e)
|
by either Passage or Remix if (i) the Passage Stockholder Meeting (including any adjournments and postponements thereof)
shall have been held and completed and Passage’s stockholders shall have taken a final vote on the Passage Stockholder Matters and (ii) the Passage Stockholder Matters shall not have been approved at the Passage Stockholder Meeting
(or at any adjournment or postponement thereof) by the Required Passage Stockholder Vote; provided, however, that the right to terminate this
Agreement under this
|
|
(f)
|
by Remix (at any time prior to the approval of the Passage Stockholder Matters by the Required Passage Stockholder Vote) if
a Passage Triggering Event shall have occurred;
|
|
(g)
|
by Passage (at any time prior to the approval of the Remix Stockholder Matters by the Required Remix Stockholder Vote) if a
Remix Triggering Event shall have occurred;
|
|
(h)
|
by Remix (at any time prior to the approval of the Remix Stockholder Matters by the Required Remix Stockholder Vote) in
order to substantially concurrently enter into an Alternative Acquisition Agreement with respect to a Superior Offer, so long as Remix has complied in all material respects with obligations under Section 5.4 and Section 5.8
and concurrently with such termination Remix pays the termination fee due to Passage in accordance with Section 8.3(e);
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|
(i)
|
by Passage (at any time prior to the approval of the Passage Stockholder Matters by the Required Passage Stockholder Vote)
in order to substantially concurrently enter into an Alternative Acquisition Agreement with respect to a Superior Offer, so long as Passage has complied in all material respects with obligations under Section 5.4 and Section 5.9
and concurrently with such termination Passage pays the termination fee due to Remix in accordance with Section 8.3(d);
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|
(j)
|
by Remix, upon a breach of any representation, warranty, covenant or agreement set forth in this Agreement by Passage or
any Merger Sub or if any representation or warranty of Passage or Merger Sub shall have become inaccurate, in either case, such that the conditions set forth in Section 6.2(a) or Section 6.2(b) would not be satisfied
as of the time of such breach or as of the time such representation or warranty shall have become inaccurate; provided that Remix is not then in material breach of any representation,
warranty, covenant or agreement under this Agreement; provided, further, that if such inaccuracy in Passage’s or any Merger Sub’s representations and
warranties or breach by Passage or any Merger Sub is curable by Passage or such Merger Sub at least one Business Day prior to the Outside Date, then this Agreement shall not terminate pursuant to this Section 8.1(j) as a
result of such particular breach or inaccuracy until the expiration of a 30-day period commencing upon delivery of written notice from Remix to Passage of such breach or inaccuracy and its intention to terminate pursuant to this Section 8.1(j)
(it being understood that this Agreement shall not terminate pursuant to this Section 8.1(j) as a result of such particular breach or inaccuracy if such breach by Passage or any Merger Sub is cured prior to such termination
becoming effective); or
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|
(k)
|
by Passage, upon a breach of any representation, warranty, covenant or agreement set forth in this Agreement by Remix or if
any representation or warranty of Remix shall have become inaccurate, in either case, such that the conditions set forth in Section 6.3(a) or Section 6.3(b) would not be satisfied as of the time of such breach or as of
the time such representation or warranty shall have become inaccurate; provided that Passage is not then in material breach of any representation, warranty, covenant or agreement under this
Agreement; provided, further, that if such inaccuracy in Remix’s representations and warranties or breach by Remix is curable by Remix at least one
Business Day prior to the Outside Date, then this Agreement shall not terminate pursuant to this Section 8.1(k) as a result of such particular breach or inaccuracy until the expiration of a 30-day period commencing upon
delivery of written notice from Passage to Remix of such breach or inaccuracy and its intention to terminate pursuant to this Section 8.1(k) (it being understood that this Agreement shall not terminate pursuant to this Section 8.1(k)
as a result of such particular breach or inaccuracy if such breach by Remix is cured prior to such termination becoming effective).
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|
8.2
|
Effect of Termination. In the event of the termination of this Agreement as provided in Section 8.1, this
Agreement shall be of no further force or effect; provided, however, that (a) Section 1.2, this Section 8.2, Section 5.11, Section 8.3
and Article IX (and the definitions of all defined terms in such Sections) shall
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8.3
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Expenses; Termination Fees.
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(a)
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Except as set forth in this Section 8.3 all fees and expenses incurred in connection with this Agreement and the
Contemplated Transactions shall be paid by the Party incurring such expenses, whether or not the Mergers are consummated; provided, however, that (i)
Passage and Remix shall pay the costs and expenses incurred in relation to the filings by the Parties under any antitrust Law applicable to this Agreement and the transactions contemplated hereby, and (ii) Passage and Remix shall
share equally all fees and expenses incurred in relation to the printing and filing with the SEC of the Registration Statement (including any financial statements and exhibits) and any amendments or supplements thereto and paid to a
financial printer or the SEC.
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(b)
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If (i) this Agreement is terminated by Passage or Remix pursuant to Section 8.1(e), (ii) at any time after the date
of this Agreement and prior to the Passage Stockholder Meeting an Acquisition Proposal with respect to Passage shall have been publicly announced, disclosed or otherwise communicated to the Passage Board (and shall not have been
withdrawn) and (iii) within twelve (12) months after the date of such termination, Passage enters into a definitive agreement with respect to a Subsequent Transaction or consummates a Subsequent Transaction, then Passage shall pay to
Remix, within two (2) Business Days after termination (or, if applicable, upon such entry into a definitive agreement and/or consummation of a Subsequent Transaction), a nonrefundable fee in an amount equal to $1,548,000.
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(c)
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If (i) this Agreement is terminated by Passage pursuant to Section 8.1(d), (ii) at any time after the date of this
Agreement, and prior to the termination of this Agreement, an Acquisition Proposal with respect to Remix shall have been publicly announced, disclosed or otherwise communicated to the Remix Board (and shall not have been withdrawn)
and (iii) within twelve (12) months after the date of such termination, Remix enters into a definitive agreement with respect to a Subsequent Transaction or consummates a Subsequent Transaction, then Remix shall pay to Passage, within
two (2) Business Days after termination (or, if applicable, upon such entry into a definitive agreement and/or consummation of a Subsequent Transaction), a nonrefundable fee in an amount equal to $17,500,000.
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(d)
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If this Agreement is terminated by Remix pursuant to Section 8.1(f) or by Passage pursuant to Section 8.1(i),
then Passage shall pay to Remix within two (2) Business Days after termination, a nonrefundable fee in an amount equal to $1,548,000.
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(e)
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If this Agreement is terminated by Passage pursuant to Section 8.1(g) or by Remix pursuant to Section 8.1(h),
then Remix shall pay to Passage, within two (2) Business Days after termination, a nonrefundable fee in an amount equal to $17,500,000.
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(f)
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If either Party fails to pay when due any amount payable by it under this Section 8.3, then (i) such Party shall
reimburse the other Party for reasonable costs and expenses (including reasonable fees and disbursements of counsel) incurred in connection with the collection of such overdue amount and the enforcement by the other Party of its
rights under this Section 8.3 and (ii) such Party shall pay to the other Party interest on such overdue amount (for the period commencing as of the date such overdue amount was originally required to be paid and ending on the
date such overdue amount is actually paid to the other Party in full) at a rate per annum equal to the “prime rate” (as announced by Bank of America or any successor thereto) in effect on the date such overdue amount was originally
required to be paid plus three percent.
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(g)
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The Parties agree that, subject to Section 8.2, the payment of the fees and expenses set forth in this Section 8.3
shall be the sole and exclusive remedy of each Party following a termination of this Agreement under the circumstances described in this Section 8.3 that result in the payment of such fees, it being understood that in no event
shall either Passage or Remix be required to pay the individual fees or damages payable pursuant to this Section 8.3 on more than one occasion. Subject to Section 8.2, following the termination of this Agreement under
the circumstances described in this Section 8.3 and the payment of the fees set forth in this Section 8.3 by a Party, (i) such Party shall have no further liability to the other Party in connection with or arising out
of this Agreement or the termination thereof, any breach of this Agreement by the other Party
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9.1
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Non-Survival of Representations and Warranties. The representations and warranties of Remix, Passage and the Merger
Subs contained in this Agreement or any certificate or instrument delivered pursuant to this Agreement shall terminate at the Initial Effective Time, and only the covenants that by their terms survive the Initial Effective Time and
this Article IX shall survive the Initial Effective Time.
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9.2
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Amendment. This Agreement may be amended with the approval of the respective boards of directors of Remix, Merger
Sub and Passage and the sole member of Merger Sub II at any time (whether before or after obtaining the Required Remix Stockholder Vote and the Required Passage Stockholder Vote); provided, however, that after any such approval of this Agreement by a Party’s stockholders or members, no amendment shall be made which by Law requires further approval of such stockholders without the
further approval of such stockholders. This Agreement may not be amended except by an instrument in writing signed on behalf of each of Remix, each Merger Sub and Passage.
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9.3
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Waiver.
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(a)
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Any provision hereof may be waived by the waiving Party solely on such Party’s own behalf, without the consent of any other
Party. No failure on the part of any Party to exercise any power, right, privilege or remedy under this Agreement, and no delay on the part of any Party in exercising any power, right, privilege or remedy under this Agreement, shall
operate as a waiver of such power, right, privilege or remedy; and no single or partial exercise of any such power, right, privilege or remedy shall preclude any other or further exercise thereof or of any other power, right,
privilege or remedy.
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(b)
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No Party shall be deemed to have waived any claim arising out of this Agreement, or any power, right, privilege or remedy
under this Agreement, unless the waiver of such claim, power, right, privilege or remedy is expressly set forth in a written instrument duly executed and delivered on behalf of such Party and any such waiver shall not be applicable or
have any effect except in the specific instance in which it is given.
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9.4
|
Entire Agreement; Counterparts; Exchanges by Electronic Transmission or Facsimile. This Agreement and the other
schedules, exhibits, certificates, instruments and agreements referred to in this Agreement constitute the entire agreement and supersede all prior agreements and understandings, both written and oral, among or between any of the
Parties with respect to the subject matter hereof and thereof (including the Original Merger Agreement); provided, however, that (a) the
Confidentiality Agreement shall not be superseded and shall remain in full force and effect in accordance with its terms and (b) the Remix Disclosure Schedule and the Passage Disclosure Schedule shall not, pursuant to Section 268(b)
of Delaware Law, be deemed part of this Agreement for purposes of any provision of Delaware Law, but shall have the effects provided in this Agreement. This Agreement amends, restates and supersedes in its entirety the Original Merger
Agreement in all respects. This Agreement may be executed in several counterparts, each of which shall be deemed an original and all of which shall constitute one and the same instrument. The exchange of a fully executed Agreement (in
counterparts or otherwise) by all Parties by electronic transmission in PDF format shall be sufficient to bind the Parties to the terms and conditions of this Agreement.
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9.5
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Applicable Law; Jurisdiction. This Agreement shall be governed by, and construed in accordance with, the laws of the
State of Delaware, regardless of the laws that might otherwise govern under applicable principles of conflicts of laws. In any action or proceeding between any of the Parties arising out of or relating to this Agreement or any of the
Contemplated Transactions, each of the Parties: irrevocably and unconditionally (a) consents and submits to the exclusive jurisdiction and venue of the Court of Chancery of the State of Delaware or, to the extent such court does not
have subject matter jurisdiction, the Superior Court of the State of Delaware or the United States District Court for the District of Delaware, (b) agrees that all claims in respect of such action or proceeding shall be heard and
determined exclusively in accordance with clause (a) of this Section 9.5, (c) waives any objection to laying venue in any such action or proceeding in such courts, (d) waives any objection that such courts are an inconvenient
forum or do not have jurisdiction over any Party, (e) agrees that service of process upon such Party in any such action or proceeding shall be effective if notice is given in accordance with Section 9.7 of this Agreement and
(f) irrevocably and unconditionally waives the right to trial by jury.
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9.6
|
Assignability. This Agreement shall be binding upon, and shall be enforceable by and inure solely to the benefit of,
the Parties and their respective successors and permitted assigns; provided, however, that neither this Agreement nor any of a Party’s rights or
obligations hereunder may be assigned or delegated by such Party without the prior written consent of the other Party, and any attempted assignment or delegation of this Agreement or any of such rights or obligations by such Party
without the other Party’s prior written consent shall be void and of no effect.
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9.7
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Notices. All notices and other communications hereunder shall be in writing and shall be deemed to have been duly
delivered and received hereunder (a) one (1) Business Day after being sent for next Business Day delivery, fees prepaid, via a reputable international overnight courier service, (b) upon delivery in the case of delivery by hand or (c)
on the date delivered to the place of delivery if sent by email (with a written or electronic confirmation of delivery) prior to 6:00 p.m. New York City time, otherwise on the next succeeding Business Day, in each case to the intended
recipient as set forth below:
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||||||
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if to Passage or Merger Sub:
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Passage Bio, Inc.
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P.O. Box 7
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Hopewell, NJ 08525
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Attention: Will Chou M.D.
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Email: [***]
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with a copy to (which shall not constitute notice):
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Fenwick & West LLP
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401 Union Street, Floor 5
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Seattle, WA 98101
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Attention: Effie Toshav; David Michaels; Ryan Mitteness
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Email: [***]
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if to Remix:
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Remix Therapeutics, Inc.
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100 Forge Road, Suite 400
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Watertown, MA 02472
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Attention: Peter Smith
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Email: [***]
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with a copy to (which shall not constitute notice):
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Latham & Watkins LLP
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200 Clarendon Street
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Boston, MA 02116
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Attention: Peter Handrinos; Leah Sauter
|
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Email: [***]
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9.8
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Cooperation. Each Party agrees to cooperate fully with the other Party and to execute and deliver such further
documents, certificates, agreements and instruments and to take such other actions as may be reasonably requested by the other Party to evidence or reflect the Contemplated Transactions and to carry out the intent and purposes of this
Agreement.
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9.9
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Severability. Any term or provision of this Agreement that is invalid or unenforceable in any situation in any
jurisdiction shall not affect the validity or enforceability of the remaining terms and provisions of this Agreement or the validity or enforceability of the offending term or provision in any other situation or in any other
jurisdiction. If a final judgment of a court of competent jurisdiction declares that any term or provision of this Agreement is invalid or unenforceable, the Parties agree that the court making such determination shall have the power
to limit such term or provision, to delete specific words or phrases or to replace such term or provision with a term or provision that is valid and enforceable and that comes closest to expressing the intention of the invalid or
unenforceable term or provision, and this Agreement shall be valid and enforceable as so modified. In the event such court does not exercise the power granted to it in the prior sentence, the Parties agree to replace such invalid or
unenforceable term or provision with a valid and enforceable term or provision that will achieve, to the extent possible, the economic, business and other purposes of such invalid or unenforceable term or provision.
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9.10
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Other Remedies; Specific Performance. Except as otherwise provided herein, any and all remedies herein expressly
conferred upon a Party will be deemed cumulative with and not exclusive of any other remedy conferred hereby, or by law or equity upon such Party, and the exercise by a Party of any one remedy will not preclude the exercise of any
other remedy. The Parties agree that irreparable damage for which monetary damages, even if available, would not be an adequate remedy, would occur in the event that any of the provisions of this Agreement were not performed in
accordance with their specific terms (including failing to take such actions as are required of each Party hereunder to consummate this Agreement and the Contemplated Transactions) or were otherwise breached. It is accordingly agreed
that the Parties shall be entitled to an injunction or injunctions, specific performance and other equitable relief to prevent breaches of this Agreement and to enforce specifically the terms and provisions hereof in any court of the
United States or any state having jurisdiction, this being in addition to any other remedy to which they are entitled at law or in equity, and each of the Parties waives any bond, surety or other security that might be required of any
other Party with respect thereto. Each of the Parties further agrees that it will not oppose the granting of an injunction, specific performance or other equitable relief on the basis that any other Party has an adequate remedy at law
or that any award of specific performance is not an appropriate remedy for any reason at law or in equity.
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9.11
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No Third-Party Beneficiaries. Nothing in this Agreement, express or implied, is intended to or shall confer upon any
Person (other than the Parties and the D&O Indemnified Parties to the extent of their respective rights pursuant to Section 5.15) any right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.
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PASSAGE BIO, INC.
|
|||
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By:
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/s/ William Chou
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Name:
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William Chou, MD
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Title:
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President and CEO
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PEREGRINE MERGER SUB, INC.
|
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By:
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/s/ William Chou
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Name:
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William Chou, MD
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Title:
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President and CEO
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PEREGRINE MERGER SUB II, LLC
|
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By:
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/s/ William Chou
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Name:
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William Chou, MD
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Title:
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President and CEO
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REMIX THERAPEUTICS, INC.
|
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By:
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/s/ Peter G. Smith
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Name:
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Peter G. Smith, Ph.D.
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Title:
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President and Chief Executive Officer
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1.
|
Agreement to Vote Shares. Each Stockholder agrees that, prior to the Expiration Date (as defined in Section 2
below), at any meeting of the stockholders of Passage or any adjournment or postponement thereof, or in connection with any written consent of the stockholders (or any class or series of stockholders, as applicable) of Passage, with
respect to the Merger, the Merger Agreement or any Acquisition Proposal, such Stockholder shall:
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|
(a)
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appear at such meeting or otherwise cause the Shares and any New Shares (as defined in Section 3 below) to be
counted as present thereat for purposes of calculating a quorum;
|
|
(b)
|
from and after the date hereof until the Expiration Date, vote (or cause to be voted), or deliver a written consent (or
cause a written consent to be delivered) covering all of the Shares and any New Shares that Stockholder shall be entitled to so vote: (i) in favor of (A) all of the Passage Stockholder Matters and (B) any matter that could
reasonably be expected to facilitate the Merger, the Concurrent Financing and the Contemplated Transactions; (ii) against any action or agreement that would result in a breach of any representation, warranty, covenant or obligation
of Passage in the Merger Agreement; (iii) against any Acquisition Proposal, or any agreement, transaction or other matter or action that is intended to, or would reasonably be expected to, impede, interfere with, delay, postpone,
discourage or materially and adversely affect the consummation of the Merger, the Concurrent Financing and all of the other Contemplated Transactions; and (iv) to approve any proposal to adjourn or postpone the meeting to a later
date, if there are not sufficient votes for the adoption of the Merger Agreement on the date on which such meeting is held. Stockholder shall not take or commit or agree to take any action inconsistent with the foregoing.
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2.
|
Expiration Date. As used in this Agreement, the term “Expiration Date” shall mean the earlier to occur of
(a) the Effective Time, (b) such date and time as the Merger Agreement shall be terminated pursuant to Article VIII thereof or otherwise, (c) any amendment to the Merger Agreement that is effected without the Stockholder’s
written consent that increases the amount, or changes the form, of consideration payable to all stockholders of the Company pursuant to the terms of the Merger Agreement or (d) the mutual written agreement of the parties to
terminate this Agreement.
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3.
|
Additional Acquisitions. Each Stockholder agrees that any shares of capital stock or other equity securities of
Passage that such Stockholder acquires or with respect to which such Stockholder otherwise acquires sole or shared voting power (including any proxy) after the execution of this Agreement and prior to the Expiration Date, whether by
the exercise of any Passage Options or otherwise, including, without limitation, upon the vesting of any applicable restricted stock unit award agreement or by gift, succession, in the event of a stock
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4.
|
Agreement to Retain Shares. From and after the date hereof until the Expiration Date, each Stockholder shall not,
directly or indirectly, (a) sell, assign, transfer, tender, or otherwise dispose of (including, without limitation, by the creation of any Liens (as defined in Section 5(d) below)) any Shares or any New Shares, (b) deposit
any Shares or New Shares into a voting trust or enter into a voting agreement or similar arrangement with respect to such Shares or New Shares or grant any proxy or power of attorney with respect thereto (other than this Agreement),
(c) enter into any Contract, option, commitment or other arrangement or understanding with respect to the direct or indirect sale, transfer, assignment or other disposition of (including, without limitation, by the creation of any
Liens) any Shares or New Shares, or (d) take any action that would make any representation or warranty of such Stockholder contained herein untrue or incorrect or have the effect of preventing or disabling such Stockholder from
performing such Stockholder’s obligations under this Agreement. Any action taken in violation of the foregoing sentence shall be null and void ab initio. Notwithstanding the foregoing, each
Stockholder may make (1) transfers by will or by operation of Law or other transfers for estate-planning purposes, in which case this Agreement shall bind the transferee, (2) with respect to such Stockholder’s Passage Options (and
any Shares underlying such Passage Options) which expire on or prior to the Expiration Date, transfers, sale, or other disposition of Shares to Passage (or effecting a “net exercise” of a Passage Option) as payment for the (i)
exercise price of such Stockholder’s Passage Options and (ii) taxes applicable to the exercise of such Stockholder’s Passage Options, (3) if Stockholder is an entity, partnership or limited liability company, a transfer to one or
more equityholders, partners or members of Stockholder or to an Affiliated person, corporation, trust or other Entity controlling or under common control with Stockholder, or if Stockholder is a trust, a transfer to a beneficiary,
provided that in each such case the applicable transferee has signed a voting agreement in substantially the form hereof, (4) make transfers that occur by operation of law pursuant to a qualified domestic relations order or in
connection with a divorce settlement, and (5) transfers, sales or other dispositions as Passage may otherwise agree in writing in its sole discretion. If any voluntary or involuntary transfer of any Shares covered hereby shall occur
(including a transfer or disposition permitted by Section 4(1) through Section 4(5), sale by a Stockholder’s trustee in bankruptcy, or a sale to a purchaser at any creditor’s or court sale), the transferee (which
term, as used herein, shall include any and all transferees and subsequent transferees of the initial transferee) shall take and hold such Shares subject to all of the restrictions, liabilities and rights under this Agreement, which
shall continue in full force and effect, notwithstanding that such transferee is not a Stockholder and has not executed a counterpart hereof or joinder hereto.
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5.
|
Representations and Warranties of Stockholder. Each Stockholder hereby, severally but not jointly, represents and
warrants to Passage and the Company as follows:
|
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(a)
|
If such Stockholder is an Entity: (i) such Stockholder is duly organized, validly existing and in good standing under the
laws of the jurisdiction in which it is incorporated, organized or constituted, (ii) such Stockholder has all necessary power and authority to execute and deliver this Agreement, to perform such Stockholder’s obligations hereunder
and to consummate the transactions contemplated hereby, and (iii) the execution and delivery of this Agreement, performance of such Stockholder’s obligations hereunder and the consummation of the transactions contemplated hereby by
such Stockholder have been duly authorized by all necessary action on the part of such Stockholder and no other proceedings on the part of such Stockholder are necessary to authorize this Agreement, or to consummate the transactions
contemplated hereby. If such Stockholder is an individual, such Stockholder has the legal capacity to execute and deliver this Agreement, to perform such Stockholder’s obligations hereunder and to consummate the transactions
contemplated hereby;
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(b)
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this Agreement has been duly executed and delivered by or on behalf of such Stockholder and, to such Stockholder’s
knowledge and assuming this Agreement constitutes a valid and binding agreement of the Company and Passage, constitutes a valid and binding agreement with respect to such Stockholder, enforceable against such Stockholder in
accordance with its terms, except as enforcement may be limited by general principles of equity whether applied in a court of Law or a court of equity and by bankruptcy, insolvency and similar Laws affecting creditors’ rights and
remedies generally;
|
|
(c)
|
Stockholder has had the opportunity to review the Merger Agreement and this Agreement with counsel of Stockholder’s own
choosing. Stockholder has had an opportunity to review with its own tax advisors
|
|
(d)
|
such Stockholder beneficially owns the number of Shares, and holds Passage Options to acquire the number of Shares,
indicated opposite such Stockholder’s name on Schedule 1, which constitute all of the Shares owned by the Stockholder as of the date hereof. Such Stockholder will own any New Shares, free and clear of any liens, claims,
charges or other encumbrances or restrictions of any kind whatsoever (“Liens”), and has sole or shared, and otherwise unrestricted, voting power with respect to such Shares or New Shares and none of the Shares or New Shares
is subject to any voting trust or other agreement, arrangement or restriction with respect to the voting of the Shares or the New Shares, except as contemplated by this Agreement and the stockholder agreements and arrangements
referenced in the Merger Agreement and except for customary arrangements with the Stockholder’s prime broker and/or custodian;
|
|
(e)
|
to the knowledge of such Stockholder, the execution and delivery of this Agreement by such Stockholder does not, and the
performance by such Stockholder of his, her or its obligations hereunder and the compliance by such Stockholder with any provisions hereof will not, violate or conflict with, result in a material breach of or constitute a default
(or an event that with notice or lapse of time or both would become a material default) under, or give to others any rights of termination, amendment, acceleration or cancellation of, or result in the creation of any Liens on any
Shares or New Shares pursuant to, any agreement, instrument, note, bond, mortgage, Contract, lease, license, permit or other obligation or any order, arbitration award, judgment or decree to which such Stockholder is a party or by
which such Stockholder is bound, or any Law, statute, rule or regulation to which such Stockholder is subject or, in the event that such Stockholder is a corporation, partnership, trust or other Entity, any bylaw or other
Organizational Document of such Stockholder; except for any of the foregoing as would not reasonably be expected to prevent or delay the performance by such Stockholder of his, her or its obligations under this Agreement in any
material respect;
|
|
(f)
|
the execution and delivery of this Agreement by such Stockholder does not, and the performance of this Agreement by such
Stockholder does not and will not, require any consent, approval, authorization or permit of, or filing with or notification to, any Governmental Authority or regulatory authority by such Stockholder except for applicable
requirements, if any, of the Exchange Act, and except where the failure to obtain such consents, approvals, authorizations or permits, or to make such filings or notifications, would not prevent or delay the performance by such
Stockholder of his, her or its obligations under this Agreement in any material respect;
|
|
(g)
|
no investment banker, broker, finder or other intermediary is entitled to a fee or commission from Passage or the Company
in respect of this Agreement based upon any Contract made by or on behalf of such Stockholder; and
|
|
(h)
|
as of the date of this Agreement, there is no Legal Proceeding pending or, to the knowledge of such Stockholder,
threatened against such Stockholder that would reasonably be expected to prevent or delay the performance by such Stockholder of his, her or its obligations under this Agreement in any material respect.
|
|
6.
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Irrevocable Proxy. Subject to the penultimate sentence of this Section 6, by execution of this Agreement,
each Stockholder does hereby appoint Passage and any of its designees with full power of substitution and resubstitution, as such Stockholder’s true and lawful attorney and irrevocable proxy, to the fullest extent of such
Stockholder’s rights with respect to the Shares, to vote and exercise all voting and related rights, including the right to sign such Stockholder’s name (solely in its capacity as a stockholder) to any Stockholder consent, if such
Stockholder fails to vote his, her or its Shares solely with respect to the matters set forth in Section 1 hereof by 5:00 p.m. (Eastern Time) on the day immediately preceding the meeting date (or date
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7.
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No Legal Actions. Each Stockholder will not in its capacity as a Passage security holder bring, commence,
institute, maintain, prosecute or voluntarily aid or participate in any Legal Proceeding which (i) challenges the validity of or seeks to enjoin the operation of any provision of this Agreement or (ii) alleges that the execution and
delivery of this Agreement by such Stockholder, either alone or together with the other voting agreements and proxies to be delivered in connection with the execution of the Merger Agreement, or the approval of the Merger Agreement
and the Contemplated Transactions by the Passage Board, constitutes a breach of any fiduciary duty of the Passage Board or any member thereof.
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8.
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Other Remedies; Specific Performance. Except as otherwise provided herein, any and all remedies herein expressly
conferred upon a party will be deemed cumulative with, and not exclusive of, any other remedy conferred hereby, or by Law or equity upon such party, and the exercise by a party of any one remedy will not preclude the exercise of any
other remedy. The parties hereto agree that irreparable damage would occur in the event that any of the provisions of this Agreement were not performed in accordance with their specific terms or were otherwise breached. It is
accordingly agreed that the parties shall be entitled to an injunction or injunctions to prevent breaches of this Agreement and to enforce specifically the terms and provisions hereof without the need of posting bond in any court of
the United States or any state having jurisdiction, this being in addition to any other remedy to which they are entitled at Law or in equity.
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9.
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Directors, Officers, Trustees and Fiduciaries. This Agreement shall apply to each Stockholder solely in such
Stockholder’s capacity as a stockholder of Passage and not in such Stockholder’s capacity as a director, officer or employee of Passage or any of its Subsidiaries or in such Stockholder’s capacity as a trustee or fiduciary of any
employee benefit plan or trust. Notwithstanding any provision of this Agreement to the contrary, nothing in this Agreement shall (or require Stockholder to attempt to) limit or restrict a director and/or officer of Passage in the
exercise of his or her fiduciary duties consistent with the terms of the Merger Agreement as a director and/or officer of Passage or in his or her capacity as a trustee or fiduciary of any employee benefit plan or trust or prevent
or be construed to create any obligation on the part of any director and/or officer of Passage or any trustee or fiduciary of any employee benefit plan or trust from taking any action in his or her capacity as such director,
officer, trustee and/or fiduciary.
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10.
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No Ownership Interest. Nothing contained in this Agreement shall be deemed to vest in Passage any direct or
indirect ownership or incidence of ownership of or with respect to any Shares. All rights, ownership and economic benefits of and relating to the Shares shall remain vested in and belong to such Stockholder, and Passage does not
have authority to manage, direct, superintend, restrict, regulate, govern, or administer any of the policies or operations of Passage or exercise any power or authority to direct such Stockholder in the voting of any of the Shares,
except as otherwise provided herein.
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11.
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Termination. This Agreement shall terminate and shall have no further force or effect as of the Expiration Date.
Notwithstanding the foregoing, upon termination or expiration of this Agreement, no party shall have
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12.
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Further Assurances. Each Stockholder shall, from time to time, execute and deliver, or cause to be executed and
delivered, such additional or further consents, documents and other instruments as the Company or Passage may reasonably request for the purpose of effectively carrying out the transactions contemplated by this Agreement and the
Contemplated Transactions.
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13.
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Disclosure. Each Stockholder hereby agrees that Passage and the Company may publish and disclose in the
Registration Statement, any prospectus filed with any regulatory authority in connection with the Contemplated Transactions and any related documents filed with such regulatory authority and as otherwise required by Law, such
Stockholder’s identity and ownership of Shares and Passage Options and the nature of such Stockholder’s commitments, arrangements and understandings under this Agreement and may further file this Agreement as an exhibit to the
Registration Statement or prospectus or in any other filing made by Passage or the Company as required by Law or the terms of the Merger Agreement, including with the SEC or other regulatory authority, relating to the Contemplated
Transactions, all subject to prior review and a reasonable opportunity to comment by Stockholder’s counsel. Prior to the Closing, each Stockholder shall not, and shall use its reasonable best efforts to cause its representatives not
to, directly or indirectly, make any press release, public announcement or other public communication regarding the Merger without the prior written consent of Passage and the Company, provided
that the foregoing shall not limit or affect any actions taken by such Stockholder (or any affiliated officer or director of such Stockholder) that would be permitted to be taken by such Stockholder, Passage or the Company pursuant
to the Merger Agreement; provided, further, that the foregoing shall not affect any actions of Stockholder the prohibition of which would be
prohibited under applicable Law and shall not prohibit Stockholder or its affiliates from making any publicly-available filings required by applicable law, regulation or legal process.
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14.
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Notice. All notices and other communications hereunder shall be in writing and shall be deemed given if delivered
personally or sent by overnight courier (providing proof of delivery), by facsimile transmission (providing confirmation of transmission) or by electronic transmission (providing confirmation of transmission) to the Company or
Passage, as the case may be, in accordance with Section 9.7 of the Merger Agreement and to each Stockholder at his, her or its address or email address (providing confirmation of transmission) set forth on Schedule 1
attached hereto (or at such other address for a party as shall be specified by like notice).
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15.
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Severability. Any term or provision of this Agreement that is invalid or unenforceable in any situation in any
jurisdiction shall not affect the validity or enforceability of the remaining terms and provisions of this Agreement or the validity or enforceability of the offending term or provision in any other situation or in any other
jurisdiction. If a final judgment of a court of competent jurisdiction declares that any term or provision of this Agreement is invalid or unenforceable, the parties hereto agree that the court making such determination shall have
the power to limit such term or provision, to delete specific words or phrases or to replace such term or provision with a term or provision that is valid and enforceable and that comes closest to expressing the intention of the
invalid or unenforceable term or provision, and this Agreement shall be valid and enforceable as so modified. In the event such court does not exercise the power granted to it in the prior sentence, the parties hereto agree to
replace such invalid or unenforceable term or provision with a valid and enforceable term or provision that will achieve, to the extent possible, the economic, business and other purposes of such invalid or unenforceable term or
provision.
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16.
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Assignability. This Agreement shall be binding upon, and shall be enforceable by and inure solely to the benefit
of, the parties hereto and their respective successors and assigns; provided, however, that neither this Agreement nor any of a party’s rights or obligations hereunder may be assigned or
delegated by such party without the prior written consent of the other parties hereto, and any attempted assignment or delegation of this Agreement or any of such rights or obligations by such party without the other party’s prior
written consent shall be void and of no effect. Nothing in this Agreement, express or implied, is intended to or shall confer upon any Person (other than the parties hereto) any right, benefit or remedy of any nature whatsoever
under or by reason of this Agreement.
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17.
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No Waivers. No waivers of any breach of this Agreement extended by the Company or Passage to such Stockholder
shall be construed as a waiver of any rights or remedies of the Company or Passage, as applicable, with respect to any other stockholder of Passage who has executed an agreement substantially in the form of this Agreement with
respect to Shares held or subsequently held by such stockholder or with respect to any subsequent breach of Stockholder or any other such stockholder of Passage. No waiver of any provisions hereof by any party shall be deemed a
waiver of any other provisions hereof by any such party, nor shall any such waiver be deemed a continuing waiver of any provision hereof by such party.
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18.
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Applicable Law; Jurisdiction. This Agreement shall be governed by, and construed in accordance with, the Laws of
the state of Delaware, regardless of the Laws that might otherwise govern under applicable principles of conflicts of Laws. In any action or Legal Proceeding between any of the parties arising out of or relating to this Agreement,
each of the parties: (i) irrevocably and unconditionally consents and submits to the exclusive jurisdiction and venue of the Court of Chancery of the state of Delaware or to the extent such court does not have subject matter
jurisdiction, the Superior Court of the State of Delaware or the United States District Court for the District of Delaware, (ii) agrees that all claims in respect of such action or Legal Proceeding shall be heard and determined
exclusively in accordance with clause (i) of this Section 18, (iii) waives any objection to laying venue in any such action or Legal Proceeding in such courts, (iv) waives any objection that such courts are an inconvenient
forum or do not have jurisdiction over any party, and (v) agrees that service of process upon such party in any such action or Legal Proceeding shall be effective if notice is given in accordance with Section 14 of this
Agreement. Each party irrevocably consents to service of process inside or outside the territorial jurisdiction of the courts referred to in this Section 18 in the manner provided for notices in Section 14. Nothing
in this Agreement will affect the right of any party to serve process in any other manner permitted by applicable Law.
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19.
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Waiver of Jury Trial. The parties hereto hereby waive any right to trial by jury with respect to any action or
Legal Proceeding related to or arising out of this Agreement, any document executed in connection herewith and the matters contemplated hereby and thereby.
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20.
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No Agreement Until Executed. Irrespective of negotiations among the parties or the exchanging of drafts of this
Agreement, this Agreement shall not constitute or be deemed to evidence a Contract, agreement, arrangement or understanding between the parties hereto unless and until (a) the Passage Board has approved, for purposes of any
applicable anti-takeover Laws and regulations and any applicable provision of the certificate of incorporation of Passage, the Merger Agreement and the Contemplated Transactions, (b) the Merger Agreement is executed by all parties
thereto, and (c) this Agreement is executed by all parties hereto.
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21.
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Entire Agreement; Counterparts; Exchanges by Electronic Transmission. This Agreement and the other agreements
referred to in this Agreement constitute the entire agreement and supersede all prior agreements and understandings, both written and oral, among or between any of the parties with respect to the subject matter hereof and thereof.
This Agreement may be executed in several counterparts, each of which shall be deemed an original and all of which shall constitute one and the same instrument. The exchange of a fully executed Agreement (in counterparts or
otherwise) by all parties by electronic transmission via “.pdf” shall be sufficient to bind the parties to the terms and conditions of this Agreement.
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22.
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Amendment. This Agreement may not be amended, supplemented or modified, and no provisions hereof may be modified
or waived, except by an instrument in writing signed on behalf of each party hereto; provided, however, that the rights or obligations of any
Stockholder may be waived, amended or otherwise modified in a writing signed by Passage, the Company and such Stockholder.
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23.
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Fees and Expenses. Except as otherwise specifically provided herein, the Merger Agreement or any other agreement
contemplated by the Merger Agreement to which a party hereto is a party, each party hereto shall bear its own expenses in connection with this Agreement and the transactions contemplated hereby.
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24.
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Voluntary Execution of Agreement. This Agreement is executed voluntarily and without any duress or undue influence
on the part or behalf of the parties. Each of the parties hereby acknowledges, represents and warrants that (i) it has read and fully understood (x) the Merger Agreement, (y) this Agreement, and (z) the implications and consequences
thereof; (ii) it has been represented in the preparation, negotiation, and execution of this Agreement by legal counsel of its own choice, or it has made a voluntary and informed decision to decline to seek such counsel; and (iii)
it is fully aware of the legal and binding effect of this Agreement.
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25.
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Definition of Merger Agreement. For purposes of this Agreement, the term “Merger Agreement” may include
such agreement as amended or modified as long as such amendments or modifications (a) do not (i) change the form or amount of consideration payable under the Merger Agreement, (ii) extend the Outside Date past December 24, 2026
(other than any extension provided for in Section 8.1(b) of the Merger Agreement with respect to the Registration Statement), or (iii) otherwise change the terms and conditions of the Merger, the Concurrent Financing or the
other Contemplated Transactions in a manner materially adverse to such Stockholder or (b) have been agreed to in writing by such Stockholder.
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26.
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Construction.
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(a)
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For purposes of this Agreement, whenever the context requires: the singular number shall include the plural, and vice
versa; the masculine gender shall include the feminine and neuter genders; the feminine gender shall include the masculine and neuter genders; and the neuter gender shall include masculine and feminine genders.
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(b)
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The parties hereto agree that any rule of construction to the effect that ambiguities are to be resolved against the
drafting party shall not be applied in the construction or interpretation of this Agreement.
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(c)
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As used in this Agreement, the words “include” and “including,” and variations thereof, shall not be deemed to be terms
of limitation, but rather shall be deemed to be followed by the words “without limitation.”
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(d)
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Except as otherwise indicated, all references in this Agreement to “Sections,” and “Schedules” are intended to refer to
Sections of this Agreement and Schedules to this Agreement, respectively.
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(e)
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The underlined headings contained in this Agreement are for convenience of reference only, shall not be deemed to be a
part of this Agreement and shall not be referred to in connection with the construction or interpretation of this Agreement.
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EXECUTED as of the date first above written.
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[STOCKHOLDER]
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Signature:
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PASSAGE BIO, INC.
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By:
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Name:
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Title:
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REMIX THERAPEUTICS, INC.
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By:
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Name:
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Title:
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Name, Address and Email Address of Stockholder
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Shares of Passage Common Stock
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1.
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Agreement to Vote Shares. Each Stockholder agrees that, prior to the Expiration Date (as defined in Section 2
below), at any meeting of the stockholders of the Company or any adjournment or postponement thereof, or in connection with any written consent of the stockholders (or any class or series of stockholders, as applicable) of the
Company, with respect to the Merger, the Merger Agreement or any Acquisition Proposal, such Stockholder shall:
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(a)
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appear at such meeting or otherwise cause the Shares and any New Shares (as defined in Section 3 below) to be
counted as present thereat for purposes of calculating a quorum;
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(b)
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from and after the date hereof until the Expiration Date, vote (or cause to be voted), or deliver a written consent (or
cause a written consent to be delivered) covering all of the Shares and any New Shares that Stockholder shall be entitled to so vote: (i) in favor of (A) all of the matters set forth in the Remix Stockholder Written Consent and
(B) any matter that could reasonably be expected to facilitate the Merger, the Concurrent Financing and the Contemplated Transactions; (ii) against any action or agreement that would result in a breach of any representation,
warranty, covenant or obligation of the Company in the Merger Agreement; (iii) against any Acquisition Proposal, or any agreement, transaction or other matter or action that is intended to, or would reasonably be expected to,
impede, interfere with, delay, postpone, discourage or materially and adversely affect the consummation of the Merger, the Concurrent Financing and all of the other Contemplated Transactions; (iv) to approve any proposal to
adjourn or postpone the meeting to a later date, if there are not sufficient votes for the adoption of the Merger Agreement on the date on which such meeting is held; and (v) to the extent applicable, in favor of an election to
convert all of the Remix Preferred Stock held by Stockholder into Remix Common Stock. Stockholder shall not take or commit or agree to take any action inconsistent with the foregoing.
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2.
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Expiration Date. As used in this Agreement, the term “Expiration Date” shall mean the earlier to occur of
(a) the Effective Time, (b) such date and time as the Merger Agreement shall be terminated pursuant to Article VIII thereof or otherwise, (c) any amendment to the Merger Agreement that is effected without the Stockholder’s
written consent that decreases the amount, or changes the form, of consideration payable to all stockholders of the Company pursuant to the terms of the Merger Agreement or (d) the mutual written agreement of the parties to
terminate this Agreement.
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3.
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Additional Acquisitions. Each Stockholder agrees that any shares of capital stock or other equity securities of
the Company that such Stockholder acquires or with respect to which such Stockholder otherwise acquires
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4.
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Agreement to Retain Shares. From and after the date hereof until the Expiration Date, each Stockholder shall
not, directly or indirectly, (a) sell, assign, transfer, tender, or otherwise dispose of (including, without limitation, by the creation of any Liens (as defined in Section 5(d) below)) any Shares or any New Shares,
(b) deposit any Shares or New Shares into a voting trust or enter into a voting agreement or similar arrangement with respect to such Shares or New Shares or grant any proxy or power of attorney with respect thereto (other than
this Agreement), (c) enter into any Contract, option, commitment or other arrangement or understanding with respect to the direct or indirect sale, transfer, assignment or other disposition of (including, without limitation, by
the creation of any Liens) any Shares or New Shares, or (d) take any action that would make any representation or warranty of such Stockholder contained herein untrue or incorrect or have the effect of preventing or disabling such
Stockholder from performing such Stockholder’s obligations under this Agreement. Any action taken in violation of the foregoing sentence shall be null and void ab initio. Notwithstanding
the foregoing, each Stockholder may make (1) transfers by will or by operation of Law or other transfers for estate-planning purposes, in which case this Agreement shall bind the transferee, (2) with respect to such Stockholder’s
Remix Options (and any Shares underlying such Remix Options) which expire on or prior to the Expiration Date, transfers, sale, or other disposition of Shares to the Company (or effecting a “net exercise” of a Remix Option) as
payment for the (i) exercise price of such Stockholder’s Remix Options and (ii) taxes applicable to the exercise of such Stockholder’s Remix Options, (3) if Stockholder is an entity, partnership or limited liability company, a
transfer to one or more equityholders, partners or members of Stockholder or to an Affiliated person, corporation, trust or other Entity controlling or under common control with Stockholder, or if Stockholder is a trust, a
transfer to a beneficiary, provided that in each such case the applicable transferee has signed a voting agreement in substantially the form hereof, (4) make transfers that occur by operation of law pursuant to a qualified
domestic relations order or in connection with a divorce settlement, and (5) transfers, sales or other dispositions as the Company may otherwise agree in writing in its sole discretion. If any voluntary or involuntary transfer of
any Shares covered hereby shall occur (including a transfer or disposition permitted by Section 4(1) through Section 4(5), sale by a Stockholder’s trustee in bankruptcy, or a sale to a purchaser at any creditor’s
or court sale), the transferee (which term, as used herein, shall include any and all transferees and subsequent transferees of the initial transferee) shall take and hold such Shares subject to all of the restrictions,
liabilities and rights under this Agreement, which shall continue in full force and effect, notwithstanding that such transferee is not a Stockholder and has not executed a counterpart hereof or joinder hereto.
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5.
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Representations and Warranties of Stockholder. Each Stockholder hereby, severally but not jointly, represents
and warrants to Passage and the Company as follows:
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(a)
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If such Stockholder is an Entity: (i) such Stockholder is duly organized, validly existing and in good standing under
the laws of the jurisdiction in which it is incorporated, organized or constituted, (ii) such Stockholder has all necessary power and authority to execute and deliver this Agreement, to perform such Stockholder’s obligations
hereunder and to consummate the transactions contemplated hereby, and (iii) the execution and delivery of this Agreement, performance of such Stockholder’s obligations hereunder and the consummation of the transactions
contemplated hereby by such Stockholder have been duly authorized by all necessary action on the part of such Stockholder and no other proceedings on the part of such Stockholder are necessary to authorize this Agreement, or to
consummate the transactions contemplated hereby. If such Stockholder is an individual, such Stockholder has the legal capacity to execute and deliver this Agreement, to perform such Stockholder’s obligations hereunder and to
consummate the transactions contemplated hereby;
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(b)
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this Agreement has been duly executed and delivered by or on behalf of such Stockholder and, to such Stockholder’s
knowledge and assuming this Agreement constitutes a valid and binding agreement of the Company and Passage, constitutes a valid and binding agreement with respect to such Stockholder,
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(c)
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Stockholder has had the opportunity to review the Merger Agreement, including the provisions relating to the payment
and allocation of the consideration to be paid to the stockholders of the Company, and this Agreement with counsel of Stockholder’s own choosing. Stockholder has had an opportunity to review with its own tax advisors the tax
consequences of the Merger and the Contemplated Transactions. Stockholder understands that it must rely solely on its advisors and not on any statements or representations made by Passage, the Company or any of their respective
agents or representatives, except as set forth in the Subscription Agreement (with respect to those Stockholders executing the Subscription Agreement). Stockholder understands that such Stockholder (and not Passage, the Company or
the Surviving Corporation) shall be responsible for such Stockholder’s tax liability that may arise as a result of the Merger or the transactions contemplated by the Merger Agreement. Stockholder understands and acknowledges that
the Company, Passage and Merger Sub are entering into the Merger Agreement in reliance upon Stockholder’s execution, delivery and performance of this Agreement;
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(d)
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such Stockholder beneficially owns the number of Shares, and holds Remix Options and Remix Warrants to acquire the
number of Shares, indicated opposite such Stockholder’s name on Schedule 1, which constitute all of the Shares owned by the Stockholder as of the date hereof. Such Stockholder will own any New Shares, free and clear of any
liens, claims, charges or other encumbrances or restrictions of any kind whatsoever (“Liens”), and has sole or shared, and otherwise unrestricted, voting power with respect to such Shares or New Shares and none of the
Shares or New Shares is subject to any voting trust or other agreement, arrangement or restriction with respect to the voting of the Shares or the New Shares, except as contemplated by this Agreement and the stockholder agreements
and arrangements referenced in the Merger Agreement and except for customary arrangements with the Stockholder’s prime broker and/or custodian;
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(e)
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to the knowledge of such Stockholder, the execution and delivery of this Agreement by such Stockholder does not, and
the performance by such Stockholder of his, her or its obligations hereunder and the compliance by such Stockholder with any provisions hereof will not, violate or conflict with, result in a material breach of or constitute a
default (or an event that with notice or lapse of time or both would become a material default) under, or give to others any rights of termination, amendment, acceleration or cancellation of, or result in the creation of any Liens
on any Shares or New Shares pursuant to, any agreement, instrument, note, bond, mortgage, Contract, lease, license, permit or other obligation or any order, arbitration award, judgment or decree to which such Stockholder is a
party or by which such Stockholder is bound, or any Law, statute, rule or regulation to which such Stockholder is subject or, in the event that such Stockholder is a corporation, partnership, trust or other Entity, any bylaw or
other Organizational Document of such Stockholder; except for any of the foregoing as would not reasonably be expected to prevent or delay the performance by such Stockholder of his, her or its obligations under this Agreement in
any material respect;
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(f)
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the execution and delivery of this Agreement by such Stockholder does not, and the performance of this Agreement by
such Stockholder does not and will not, require any consent, approval, authorization or permit of, or filing with or notification to, any Governmental Authority or regulatory authority by such Stockholder except for applicable
requirements, if any, of the Exchange Act, and except where the failure to obtain such consents, approvals, authorizations or permits, or to make such filings or notifications, would not prevent or delay the performance by such
Stockholder of his, her or its obligations under this Agreement in any material respect;
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(g)
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no investment banker, broker, finder or other intermediary is entitled to a fee or commission from Passage or the
Company in respect of this Agreement based upon any Contract made by or on behalf of such Stockholder; and
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(h)
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as of the date of this Agreement, there is no Legal Proceeding pending or, to the knowledge of such Stockholder,
threatened against such Stockholder that would reasonably be expected to prevent or delay the performance by such Stockholder of his, her or its obligations under this Agreement in any material respect.
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6.
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Irrevocable Proxy. Subject to the penultimate sentence of this Section 6, by execution of this
Agreement, each Stockholder does hereby appoint the Company and any of its designees with full power of substitution and resubstitution, as such Stockholder’s true and lawful attorney and irrevocable proxy, to the fullest extent
of such Stockholder’s rights with respect to the Shares, to vote and exercise all voting and related rights, including the right to sign such Stockholder’s name (solely in its capacity as a stockholder) to any Stockholder consent,
if such Stockholder fails to vote his, her or its Shares solely with respect to the matters set forth in Section 1 hereof by 5:00 p.m. (Eastern Time) on the day immediately preceding the meeting date (or date upon which
written consents are requested to be submitted), provided the Stockholder has received information regarding the meeting or request for written consent at least five (5) Business Days before such stockholder meeting or any consent
solicitation or other vote taken of the Company’s stockholders. Each Stockholder intends this proxy to be irrevocable and coupled with an interest hereunder until the Expiration Date, hereby revokes any proxy previously granted by
such Stockholder with respect to the Shares and represents that none of such previously-granted proxies are irrevocable. The Stockholder hereby affirms that the proxy set forth in this Section 6 is given in connection
with, and granted in consideration of, and as an inducement to the Company, Passage and Merger Sub to enter into the Merger Agreement and that such proxy is given to secure the obligations of the Stockholder under Section 1.
The irrevocable proxy and power of attorney granted herein shall survive the death or incapacity of such Stockholder and the obligations of such Stockholder shall be binding on such Stockholder’s heirs, personal representatives,
successors, transferees and assigns. Each Stockholder hereby agrees not to grant any subsequent powers of attorney or proxies with respect to any Shares with respect to the matters set forth in Section 1 until after the
Expiration Date. With respect to any Shares that are owned beneficially by Stockholder but are not held of record by Stockholder (other than shares beneficially owned by Stockholder that are held in the name of a bank, broker or
nominee), Stockholder shall take all action necessary to cause the record holder of such Shares to grant the irrevocable proxy and take all other actions provided for in this Section 6 with respect to such Shares.
Notwithstanding anything contained herein to the contrary, this irrevocable proxy shall automatically terminate upon the Expiration Date.
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7.
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Waiver of Appraisal Rights. Each Stockholder hereby waives, and agrees not to exercise or assert, any appraisal
rights under applicable Law, including Section 262 of Delaware Law, in connection with the Merger.
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8.
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No Legal Actions. Each Stockholder will not in its capacity as a Company security holder bring, commence,
institute, maintain, prosecute or voluntarily aid or participate in any Legal Proceeding which (i) challenges the validity of or seeks to enjoin the operation of any provision of this Agreement or (ii) alleges that the execution
and delivery of this Agreement by such Stockholder, either alone or together with the other voting agreements and proxies to be delivered in connection with the execution of the Merger Agreement, or the approval of the Merger
Agreement and the Contemplated Transactions by the Remix Board, constitutes a breach of any fiduciary duty of the Remix Board or any member thereof.
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9.
|
Other Remedies; Specific Performance. Except as otherwise provided herein, any and all remedies herein expressly
conferred upon a party will be deemed cumulative with, and not exclusive of, any other remedy conferred hereby, or by Law or equity upon such party, and the exercise by a party of any one remedy will not preclude the exercise of
any other remedy. The parties hereto agree that irreparable damage would occur in the event that any of the provisions of this Agreement were not performed in accordance with their specific terms or were otherwise breached. It is
accordingly agreed that the parties shall be entitled to an injunction or injunctions to prevent breaches of this Agreement and to enforce specifically the terms and provisions hereof without the need of posting bond in any court
of the United States or any state having jurisdiction, this being in addition to any other remedy to which they are entitled at Law or in equity.
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10.
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Directors, Officers, Trustees and Fiduciaries. This Agreement shall apply to each Stockholder solely in such
Stockholder’s capacity as a stockholder of the Company and/or holder of Remix Options and/or Remix Warrants not in such Stockholder’s capacity as a director, officer or employee of the Company or any of its Subsidiaries or in such
Stockholder’s capacity as a trustee or fiduciary of any employee benefit plan or trust.
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11.
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No Ownership Interest. Nothing contained in this Agreement shall be deemed to vest in the Company any direct or
indirect ownership or incidence of ownership of or with respect to any Shares. All rights, ownership and economic benefits of and relating to the Shares shall remain vested in and belong to such Stockholder, and the Company does
not have authority to manage, direct, superintend, restrict, regulate, govern, or administer any of the policies or operations of the Company or exercise any power or authority to direct such Stockholder in the voting of any of
the Shares, except as otherwise provided herein.
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12.
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Termination. This Agreement shall terminate and shall have no further force or effect as of the Expiration Date.
Notwithstanding the foregoing, upon termination or expiration of this Agreement, no party shall have any further obligations or liabilities under this Agreement; provided, however, that nothing set forth in this Section 12 or elsewhere in this Agreement shall relieve any party from liability for any fraud or for any willful and material breach of this
Agreement prior to termination hereof.
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13
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Further Assurances. Each Stockholder shall, from time to time, execute and deliver, or cause to be executed and
delivered, such additional or further consents, documents and other instruments as the Company or Passage may reasonably request for the purpose of effectively carrying out the transactions contemplated by this Agreement and the
Contemplated Transactions.
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14.
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Disclosure. Each Stockholder hereby agrees that Passage and the Company may publish and disclose in the
Registration Statement, any prospectus filed with any regulatory authority in connection with the Contemplated Transactions and any related documents filed with such regulatory authority and as otherwise required by Law, such
Stockholder’s identity and ownership of Shares, Remix Options and Remix Warrants and the nature of such Stockholder’s commitments, arrangements and understandings under this Agreement and may further file this Agreement as an
exhibit to the Registration Statement or prospectus or in any other filing made by Passage or the Company as required by Law or the terms of the Merger Agreement, including with the SEC or other regulatory authority, relating to
the Contemplated Transactions, all subject to prior review and a reasonable opportunity to comment by Stockholder’s counsel. Prior to the Closing, each Stockholder shall not, and shall use its reasonable best efforts to cause its
representatives not to, directly or indirectly, make any press release, public announcement or other public communication regarding the Merger without the prior written consent of Passage and the Company, provided that the foregoing shall not limit or affect any actions taken by such Stockholder (or any affiliated officer or director of such Stockholder) that would be permitted to be taken by such Stockholder,
Passage or the Company pursuant to the Merger Agreement; provided, further, that the foregoing shall not affect any actions of Stockholder the
prohibition of which would be prohibited under applicable Law and shall not prohibit Stockholder or its affiliates from making any publicly-available filings required by applicable law, regulation or legal process.
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15.
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Notice. All notices and other communications hereunder shall be in writing and shall be deemed given if
delivered personally or sent by overnight courier (providing proof of delivery), by facsimile transmission (providing confirmation of transmission) or by electronic transmission (providing confirmation of transmission) to the
Company or Passage, as the case may be, in accordance with Section 9.7 of the Merger Agreement and to each Stockholder at his, her or its address or email address (providing confirmation of transmission) set forth on Schedule
1 attached hereto (or at such other address for a party as shall be specified by like notice).
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16.
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Severability. Any term or provision of this Agreement that is invalid or unenforceable in any situation in any
jurisdiction shall not affect the validity or enforceability of the remaining terms and provisions of this Agreement or the validity or enforceability of the offending term or provision in any other situation or in any other
jurisdiction. If a final judgment of a court of competent jurisdiction declares that any term or provision of this Agreement is invalid or unenforceable, the parties hereto agree that the court making such determination shall have
the power to limit such term or provision, to delete specific words or phrases or to
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17.
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Assignability. This Agreement shall be binding upon, and shall be enforceable by and inure solely to the benefit
of, the parties hereto and their respective successors and assigns; provided, however, that neither this Agreement nor any of a party’s rights or obligations hereunder may be assigned or
delegated by such party without the prior written consent of the other parties hereto, and any attempted assignment or delegation of this Agreement or any of such rights or obligations by such party without the other party’s prior
written consent shall be void and of no effect. Nothing in this Agreement, express or implied, is intended to or shall confer upon any Person (other than the parties hereto) any right, benefit or remedy of any nature whatsoever
under or by reason of this Agreement.
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18.
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No Waivers. No waivers of any breach of this Agreement extended by the Company or Passage to such Stockholder
shall be construed as a waiver of any rights or remedies of the Company or Passage, as applicable, with respect to any other stockholder of the Company who has executed an agreement substantially in the form of this Agreement with
respect to Shares held or subsequently held by such stockholder or with respect to any subsequent breach of Stockholder or any other such stockholder of the Company. No waiver of any provisions hereof by any party shall be deemed
a waiver of any other provisions hereof by any such party, nor shall any such waiver be deemed a continuing waiver of any provision hereof by such party.
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19.
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Applicable Law; Jurisdiction. This Agreement shall be governed by, and construed in accordance with, the Laws of
the state of Delaware, regardless of the Laws that might otherwise govern under applicable principles of conflicts of Laws. In any action or Legal Proceeding between any of the parties arising out of or relating to this Agreement,
each of the parties: (i) irrevocably and unconditionally consents and submits to the exclusive jurisdiction and venue of the Court of Chancery of the state of Delaware or to the extent such court does not have subject matter
jurisdiction, the Superior Court of the State of Delaware or the United States District Court for the District of Delaware, (ii) agrees that all claims in respect of such action or Legal Proceeding shall be heard and determined
exclusively in accordance with clause (i) of this Section 19, (iii) waives any objection to laying venue in any such action or Legal Proceeding in such courts, (iv) waives any objection that such courts are an inconvenient
forum or do not have jurisdiction over any party, and (v) agrees that service of process upon such party in any such action or Legal Proceeding shall be effective if notice is given in accordance with Section 15 of this
Agreement. Each party irrevocably consents to service of process inside or outside the territorial jurisdiction of the courts referred to in this Section 19 in the manner provided for notices in Section 15. Nothing
in this Agreement will affect the right of any party to serve process in any other manner permitted by applicable Law.
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20.
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Waiver of Jury Trial. The parties hereto hereby waive any right to trial by jury with respect to any action or
Legal Proceeding related to or arising out of this Agreement, any document executed in connection herewith and the matters contemplated hereby and thereby.
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21.
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No Agreement Until Executed. Irrespective of negotiations among the parties or the exchanging of drafts of this
Agreement, this Agreement shall not constitute or be deemed to evidence a Contract, agreement, arrangement or understanding between the parties hereto unless and until (a) the Remix Board has approved, for purposes of any
applicable anti-takeover Laws and regulations and any applicable provision of the certificate of incorporation of the Company, the Merger Agreement and the Contemplated Transactions, (b) the Merger Agreement is executed by all
parties thereto, and (c) this Agreement is executed by all parties hereto.
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22.
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Entire Agreement; Counterparts; Exchanges by Electronic Transmission. This Agreement and the other agreements
referred to in this Agreement constitute the entire agreement and supersede all prior agreements and understandings, both written and oral, among or between any of the parties with respect to the subject matter hereof and thereof.
This Agreement may be executed in several counterparts, each of which shall be
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23.
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Amendment. This Agreement may not be amended, supplemented or modified, and no provisions hereof may be modified
or waived, except by an instrument in writing signed on behalf of each party hereto; provided, however, that the rights or obligations of any
Stockholder may be waived, amended or otherwise modified in a writing signed by Passage, the Company and such Stockholder.
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24.
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Fees and Expenses. Except as otherwise specifically provided herein, the Merger Agreement or any other agreement
contemplated by the Merger Agreement to which a party hereto is a party, each party hereto shall bear its own expenses in connection with this Agreement and the transactions contemplated hereby.
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25.
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Voluntary Execution of Agreement. This Agreement is executed voluntarily and without any duress or undue
influence on the part or behalf of the parties. Each of the parties hereby acknowledges, represents and warrants that (i) it has read and fully understood (x) the Merger Agreement, including the provisions relating to the payment
and allocation of the consideration to be paid to stockholders of the Company and holders of Remix Options and Remix Warrants, (y) this Agreement, and (z) the implications and consequences thereof; (ii) it has been represented in
the preparation, negotiation, and execution of this Agreement by legal counsel of its own choice, or it has made a voluntary and informed decision to decline to seek such counsel; and (iii) it is fully aware of the legal and
binding effect of this Agreement.
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26.
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Definition of Merger Agreement. For purposes of this Agreement, the term “Merger Agreement” may include
such agreement as amended or modified as long as such amendments or modifications (a) do not (i) change the form or amount of consideration payable under the Merger Agreement, (ii) extend the Outside Date past [•] (other than any
extension provided for in Section 8.1(b) of the Merger Agreement with respect to the Registration Statement), or (iii) otherwise change the terms and conditions of the Merger, the Concurrent Financing or the other
Contemplated Transactions in a manner materially adverse to such Stockholder or (b) have been agreed to in writing by such Stockholder.
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27.
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Construction.
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(a)
|
For purposes of this Agreement, whenever the context requires: the singular number shall include the plural, and vice
versa; the masculine gender shall include the feminine and neuter genders; the feminine gender shall include the masculine and neuter genders; and the neuter gender shall include masculine and feminine genders.
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(b)
|
The parties hereto agree that any rule of construction to the effect that ambiguities are to be resolved against the
drafting party shall not be applied in the construction or interpretation of this Agreement.
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(c)
|
As used in this Agreement, the words “include” and “including,” and variations thereof, shall not be deemed to be terms
of limitation, but rather shall be deemed to be followed by the words “without limitation.”
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(d)
|
Except as otherwise indicated, all references in this Agreement to “Sections,” and “Schedules” are intended to refer to
Sections of this Agreement and Schedules to this Agreement, respectively.
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(e)
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The underlined headings contained in this Agreement are for convenience of reference only, shall not be deemed to be a
part of this Agreement and shall not be referred to in connection with the construction or interpretation of this Agreement.
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EXECUTED as of the date first above written.
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[STOCKHOLDER]
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Signature:
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PASSAGE BIO, INC.
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By:
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Name:
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Title:
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REMIX THERAPEUTICS, INC.
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By:
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Name:
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Title:
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Name, Address and
Email Address of
Stockholder
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Shares of Remix
Common Stock
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Shares of Remix
Preferred Stock
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Remix Options
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Remix Warrants
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Very truly yours,
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COMPANY:
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Remix Therapeutics, Inc.
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By:
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Name:
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Peter G. Smith, Ph.D.
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Title:
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President and Chief Executive Officer
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PASSAGE:
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Passage Bio, Inc.
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By:
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Name:
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William Chou, M.D.
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Title:
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President and Chief Executive Officer
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STOCKHOLDER:
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By:
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Name:
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Title:
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(i)
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offer, pledge, sell, contract to sell, sell any option or contract to purchase, purchase any option or contract to
sell, grant any option, right or warrant to purchase, lend, or otherwise transfer or dispose of, directly or indirectly, any shares of Passage Common Stock held by the Undersigned immediately after the Closing issued pursuant to
the Merger Agreement in respect of any shares of Remix Common Stock, Remix Preferred Stock, Remix Convertible Notes, Remix Options or Remix Warrants that were held by the Undersigned immediately prior to the Closing (collectively,
the “Undersigned’s Shares”), or publicly disclose the intention to make any such offer, sale, pledge, grant, transfer or disposition (for the avoidance of doubt, in no
event will the Concurrent Financing Released Shares or Passage Released Shares constitute “Undersigned’s Shares” for purposes of this Lock-Up Agreement);
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(ii)
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enter into any swap, short sale, hedge or other agreement that transfers, in whole or in part, any of the economic
consequences of ownership of the Undersigned’s Shares regardless of whether any such transaction described in clause (i) above or this clause (ii) is to be settled by delivery of the Undersigned’s Shares or other securities, in
cash or otherwise; or
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(iii)
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make any demand for, or exercise any right with respect to, the registration of any of the Undersigned’s Shares (other
than such rights set forth in the Merger Agreement or the obligations of Remix or the combined company under the Registration Rights Agreement (as defined in the Subscription Agreement, dated as of the date hereof, by and among
Remix and each of the purchasers listed on the Schedule of Purchasers attached thereto)).
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(a)
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transfers of the Undersigned’s Shares:
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(i)
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if the undersigned is a natural person, (A) to any person related to the undersigned by blood or adoption who
is an immediate family member of the undersigned, or by marriage or domestic partnership (a “Family Member”), or to a trust formed for the direct or indirect benefit of
the undersigned or any of the undersigned’s Family Members, (B) to the undersigned’s estate, following the death of the undersigned, by will, intestacy or other operation of Law, (C) as a bona fide gift or a charitable
contribution, as such term is described in Section 501(c)(3) of the Internal Revenue Code of 1986, as amended, (D) by operation of Law pursuant to a qualified domestic relations order or in connection with a divorce settlement, or
(E) to any partnership, corporation or limited liability company which is controlled by the undersigned and/or by any such Family Member(s);
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(ii)
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if the undersigned is a corporation, partnership, limited liability company or other entity,
(A) to another corporation, partnership, limited liability company, or other entity that is an affiliate (as defined under Rule 12b-2 of the Exchange Act) of the undersigned, including investment funds or other entities under
common control or management or advisement with the undersigned (including, for the avoidance of doubt, where the undersigned is a partnership, to its general partner or a successor partnership or fund, or any other funds managed
by such partnership), (B) as a distribution or dividend to equity holders, including, without limitation, current or former general or limited partners, members or managers (or to the estates of any of the foregoing), as
applicable, of the undersigned (including upon the liquidation and dissolution of the undersigned pursuant to a plan of liquidation approved by the undersigned’s equity holders), (C) as a bona fide gift or a charitable
contribution, as such term is described in Section 501(c)(3) of the Internal Revenue Code of 1986, as amended, (D) transfers or dispositions not involving a change in beneficial ownership or (E) with prior written consent of
Passage; or
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(iii)
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if the undersigned is a trust, to any grantors or beneficiaries of the trust;
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(b)
|
the exercise of an option to purchase Passage Common Stock (including a net or cashless exercise of an option to
purchase Passage Common Stock), and any related transfer of shares of Passage Common Stock to Passage or the sale of Passage Common Stock in the open market, in each case, for the purpose of paying the exercise price of such
options or for paying taxes (including estimated taxes) during the Restricted Period due as a result of the exercise of such options; provided that, for the avoidance of doubt, the underlying shares of Passage Common Stock held by the undersigned following such exercise or open market sales shall continue to be subject to the restrictions on
transfer set forth in this Lock-Up Agreement;
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(c)
|
the disposition (including a forfeiture or repurchase) to Passage of any shares of restricted stock granted pursuant to
the terms of any employee benefit plan or restricted stock purchase agreement;
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(d)
|
the vesting of any restricted stock unit or settlement of any other equity award that represents the right to receive
shares of Passage Common Stock, and transfers to Passage, or sales of Passage Common Stock in the open market, in connection with the vesting of any restricted stock unit or settlement of any other equity award that represents the
right to receive shares of Passage Common Stock settled in Passage Common Stock, in each case, to pay any tax withholding obligations due during the Restricted Period; provided that, for the avoidance of doubt, the underlying shares of Passage Common Stock held by the undersigned following such vesting or settlement and any such open market sales shall continue
to be subject to the restrictions on transfer set forth in this Lock-Up Agreement;
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(e)
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the establishment of a trading plan pursuant to Rule 10b5-1 under the Exchange Act (a “10b5-1 Plan”) for the transfer of Passage Common Stock; provided that (i) such plan does not
provide for any transfers of Passage Common Stock during the Restricted Period and (ii) no sales, transfers or other dispositions of shares of Passage Common Stock shall be made pursuant to a 10b5-1 Plan existing as of the date of
the Merger Agreement (which, for clarity, shall not be amended during the Restricted Period, but may be terminated during the Restricted Period); and provided further that no public
announcement or filing under the Exchange Act or otherwise shall be required or voluntarily made by any party in connection with the establishment of such plan during the Restricted Period;
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(f)
|
transfers, sales, dispositions, or the entering into of transactions (including, without limitation, any swap, hedge,
short sale or similar agreement) or public announcements by the undersigned of or relating to shares of capital stock or other securities of Passage purchased or acquired by the undersigned on the open market, in other
transactions following the Closing or in a public offering by Passage or that do not involve or relate to the Undersigned’s Shares (the “Passage Released Shares”); provided that this clause (f) shall not apply to any shares of Passage Common Stock issued pursuant to the Merger Agreement in respect of shares, or any securities convertible into or
exercisable or exchangeable for shares, of Remix;
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(g)
|
transfers of the Undersigned’s Shares pursuant to a bona fide third-party tender offer, merger, consolidation or other
similar transaction made to all holders of Passage’s capital stock involving a change of control of
|
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(h)
|
transfers of the Undersigned’s Shares pursuant to an order of a court or regulatory agency; or
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(i)
|
transfers, sales, dispositions, or the entering into of transactions (including, without limitation, any swap, hedge,
short sale or similar agreement) or public announcements by the undersigned relating to shares of Passage Common Stock issued pursuant to the Merger Agreement in respect of shares of Remix or Passage, as the case may be, if any,
purchased pursuant to the Concurrent Financing (as defined in the Merger Agreement) or issued in exchange for, or on conversion or exercise of, any securities issued as part of the Concurrent Financing (the “Concurrent Financing Released Shares”). For the avoidance of doubt and without limiting any of the foregoing exceptions, the number of Concurrent Financing Released Shares to
be issued to the undersigned at the Closing is set forth, solely for informational purposes, opposite his, her or its name on Schedule I to this Lock-Up Agreement under the heading “Concurrent Financing Released Shares”;
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|||
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Accepted and Agreed
By Passage Bio, Inc.:
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By:
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Name:
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Title:
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Accepted and Agreed by
Remix Therapeutics, Inc.:
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By:
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Name:
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Title:
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Very truly yours,
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Print Name of Stockholder (Individual):
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[•]
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Address:
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Very truly yours,
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Print Name of Stockholder (Entity):
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[•]
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Address:
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By:
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Name:
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Title:
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Stockholder
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Concurrent Financing Released Shares
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a)
|
each reference to “the Merger Agreement” in the Agreement shall be deemed to be a reference to the A&R Merger
Agreement;
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b)
|
the reference to the Subscription Agreement in subparagraph (iii) of the second paragraph of the Agreement shall be
deemed to be a reference to the A&R Subscription Agreement and the definition of the Registration Rights Agreement as set forth in the A&R Subscription Agreement;
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c)
|
subparagraph (i) of the third paragraph of the Agreement is hereby amended and restated in its entirety to read as
follows:
|
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d)
|
each reference to “Concurrent Financing Released Shares” in the Agreement is hereby amended to read as “Concurrent
Financing Released Securities”;
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e)
|
each reference to “this Lock-Up Agreement,” “hereof,” “herein,” “hereby” and similar terms in the Agreement will from
and after the entry into this Amendment refer to the Agreement as amended by this Amendment; and
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f)
|
Schedule I to the Agreement is hereby amended and restated in its entirety to read as follows:
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Stockholder
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Concurrent Financing Released Securities
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Very truly yours,
|
|||
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[•]
|
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By:
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Name:
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Title:
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ACCEPTED AND AGREED:
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REMIX THERAPEUTICS, INC.
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|||
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By:
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Name:
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Peter G. Smith, Ph.D.
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Title:
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President and Chief Executive Officer
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ACCEPTED AND AGREED
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PASSAGE BIO, INC.
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By:
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Name:
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Will Chou, M.D.
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Title:
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President and Chief Executive Officer
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SECTION 1.
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Authorization of Securities.
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1.01
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The Company has authorized the sale and issuance of shares of Common Stock and the Pre-Funded Warrants on the terms and subject
to the conditions set forth in this Agreement. The shares of Common Stock sold hereunder at the Closing (as defined below) shall be referred to as the “Shares”, the shares of
Common Stock issuable upon exercise of or otherwise pursuant to the Pre-Funded Warrants shall be referred to as the “Warrant Shares” and the Shares and the Pre-Funded Warrants
(including, as applicable, the Warrant Shares issuable in exchange therefor) shall be collectively referred to as the “Securities”.
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SECTION 2.
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Sale and Purchase of the Securities.
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2.01
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Upon the terms and subject to the conditions herein contained (including the satisfaction or waiver of the closing conditions
set forth in Section 6), the Company agrees to sell and issue to each Purchaser, and each Purchaser agrees, severally and not jointly, to purchase from the Company, at a closing to take place remotely via exchange of executed
documents (the “Closing” and the date of the Closing, the “Closing Date”) to occur immediately prior to the Initial
Effective Time (as such term is defined in the Merger Agreement), (i) that number of Shares set forth under the heading “Shares” opposite such Purchaser’s name on the Schedule of Purchasers (which represents the portion of the Purchaser’s
Subscription Amount set forth on the Schedule of Purchasers (the “Subscription Amount”) divided by the Purchase Price (as may be adjusted pursuant to Section 2.04 hereof)
(rounded down to the nearest whole share)), and (ii) that number of
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2.02
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Upon written notice from (or on behalf of) the Company to the Purchasers (the “Wire Instructions Notice”) at least three Business Days prior to the date that the Company reasonably expects all conditions to the closing of the Merger to be satisfied, each Purchaser will pay the Subscription Amount set
forth opposite such Purchaser’s name on the Schedule of Purchasers by wire transfer of immediately available funds in accordance with the Wire Instructions Notice at least two Business Days prior to the Closing. The Wire Instructions
Notice shall include an express acknowledgement that the Company reasonably expects all conditions to the closing of the Merger under the Merger Agreement to be satisfied on the Closing Date. If so requested by the Company in the Wire
Instructions Notice and agreed by the applicable Purchaser, the Subscription Amount of each Purchaser shall be paid into an escrow fund or trust account designated by the Company in writing (the “Escrow Account”) to be released to the Company only upon satisfaction of each of the closing conditions set forth in Section 6 below. In the event the Closing does not occur within three Business Days
of the Closing Date specified in the Wire Instructions Notice, unless otherwise agreed by the Company and such Purchaser, the Company shall, or shall cause the escrow agent for the Escrow Account to, promptly (but not later than one
Business Day thereafter) return the aggregate Subscription Amount to each Purchaser by wire transfer of U.S. dollars in immediately available funds to the account specified by such Purchaser. On the Closing Date, the Company will deliver,
against payment by each Purchaser of its Subscription Amount, (A) the Shares in book-entry form registered in the name of the Purchaser (or its nominee as instructed by the Purchaser) free and clear of any liens or other restrictions
(other than those arising under applicable securities laws, and shall provide evidence of such issuance from Passage’s transfer agent as of the Closing Date to each Purchaser, and (B) if applicable, a Pre-Funded Warrant registered in the
name of the Purchaser (or its nominee as instructed by the Purchaser) free and clear of any liens or other restrictions (other than those arising under applicable securities laws) to such Purchaser. Notwithstanding the foregoing and
anything in this Agreement to the contrary, the Company may amend the Schedule of Purchasers up to three Business Days prior to the Closing, without the consent of the other parties hereto, to reflect the number of Securities purchased
and the Subscription Amount to be paid, in each case, by each applicable Purchaser, and shall provide such updated Schedule of Purchasers to a Purchaser upon request (provided, however, for the avoidance of doubt, that the Company may not
increase or decrease a Purchaser’s “Subscription Amount” set forth in the Schedule of Purchasers without the prior written consent of such Purchaser).
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2.03
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Notwithstanding anything to the contrary in this Agreement, the (i) Schedule of Purchasers and (ii) the aggregate Subscription
Amount may be amended by the Company and the affected Purchaser (which may be a new Purchaser) prior to the effectiveness of the Registration Statement, without the consent of the other parties hereto, to reflect the actual number of
Securities purchased by each Purchaser at the Closing, provided that (x) the Company shall provide to Purchasers such updated Schedule of Purchasers, (y) the aggregate Subscription Amount of all
Purchasers after giving effect to such amendment shall not be less than the Total Subscription Amount and (z) no Purchaser’s Subscription Amount be increased without such Purchaser’s prior written consent. For the avoidance of doubt, the
Company may, with the approval of the Purchaser Majority, add additional purchasers (each of whom shall execute a joinder to this Agreement and make the representations set forth in Section 3) at any time prior to the
effectiveness of the Registration Statement, provided that the Purchase Price paid by such additional purchasers is equal to or greater than the Purchase Price.
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2.04
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In the event of any stock split, subdivision, dividend or distribution payable in shares of Common Stock (or other securities
or rights convertible into, or entitling the holder thereof to receive directly or indirectly shares of Common Stock), combination or other similar recapitalization or event occurring after the date hereof and prior to the Closing, each
reference in this Agreement to a number of shares or a price per share shall be deemed to be amended to appropriately account for such event.
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SECTION 3.
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Representations and Warranties of the Purchasers. Each Purchaser, severally and not jointly, represents and warrants to
the Company and the Placement Agents, as of the date of the Original Agreement, that:
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3.01
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Organization. The Purchaser is duly organized, validly existing and in good standing under the laws of the jurisdiction
of its organization and has the requisite power and authority to own, lease and operate its properties and to carry on its business as now conducted.
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3.02
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Validity. The execution, delivery and performance of this Agreement and the consummation by the Purchaser of the
transactions contemplated hereby have been duly authorized by all necessary corporate, partnership, limited liability or similar actions, as applicable, on the part of such Purchaser. This Agreement has been duly executed and delivered by
the Purchaser and, assuming that this Agreement constitutes the valid and binding obligation of the Company, constitutes a valid and binding obligation of the Purchaser, enforceable against it in accordance with its terms, except as
limited by applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance, and any other laws of general application affecting enforcement of creditors’ rights generally, and as limited by laws relating to the
availability of specific performance, injunctive relief, or other equitable remedies.
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3.03
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Brokers. There is no broker, investment banker, financial advisor, finder or other person which has been retained by or
is authorized to act on behalf of the Purchaser who is entitled to any fee or commission for which the Company will be liable in connection with the execution of this Agreement and the consummation of the transactions contemplated hereby.
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3.04
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Investment Representations and Warranties. The Purchaser understands and agrees that the offering and sale of the
Securities has not been registered under the 1933 Act or any applicable state securities laws or the securities laws of any other jurisdiction and is being made in reliance upon federal and state exemptions for transactions not involving
a public offering which depend upon, among other things, the bona fide nature of the investment intent and the accuracy of the Purchaser’s representations as expressed herein.
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3.05
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Acquisition for Own Account. The Purchaser is acquiring the Securities for its own account for investment purposes and
not with a view towards distribution in a manner which would violate the 1933 Act or any applicable state or federal securities laws. The Purchaser has not been formed for the specific purpose of acquiring the Securities.
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3.06
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No General Solicitation. The Purchaser is not purchasing the Securities as a result of any advertisement, article,
notice or other communication regarding the Securities published in any newspaper, magazine or similar media or broadcast over television, radio or the internet or presented at any seminar or any other general solicitation or general
advertisement. The purchase of the Securities by the Purchaser has not been solicited by or through anyone other than the Company or, on the Company’s behalf, Goldman Sachs & Co. LLC, Jefferies LLC and Evercore Group L.L.C. (the “Placement Agents”), who have been engaged as joint placement agents for the offering of the Securities; provided that the Company may engage additional Placement Agents from time to
time in its sole discretion.
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3.07
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Ability to Protect Its Own Interests and Bear Economic Risks. The Purchaser is a sophisticated institutional investor,
has the capacity to protect its own interests in connection with the transactions contemplated by this Agreement, and has sufficient knowledge and experience in investing in investments similar to the Securities to properly evaluate the
merits and risks of the investment in the Securities. The Purchaser is able to bear the substantial risks of an investment in the Securities including but not limited to loss of the Purchaser’s entire investment therein. The Purchaser has
exercised independent judgment in evaluating its participation in the purchase of the Securities, and has determined based on its own independent review and such professional advice as it deems appropriate that its purchase of the
Securities and participation in the transactions contemplated by this Agreement (i) are consistent with the Purchaser’s financial needs, objectives and applicable investment policies or guidelines, (ii) do not and will not violate or
constitute a default under the Purchaser’s charter, bylaws or other constituent document or under any law, rule, regulation, agreement or other obligation by which it is bound, except to the extent such non-compliance, violation or
default would not materially and adversely affect the Purchaser’s ability to consummate the transactions contemplated by this Agreement, and (iii) is a fit, proper and suitable investment for the Purchaser, notwithstanding the substantial
risks inherent in investing in or holding the Securities.
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3.08
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Accredited Investor. The Purchaser is (i) a qualified institutional buyer (as defined in Rule 144A of the 1933 Act), or
(ii) an “accredited investor” within the meaning of Rule 501(a) (1), (2), (3) or (7) under the 1933 Act. Accordingly, the Purchaser understands that the offering meets the exemptions from filing under FINRA Rule 5123(b)(1)(C) or (J). The
Purchaser is an institutional account as defined in FINRA Rule 4512(c). Accordingly, the Purchaser has also been advised that the offering meets (i) the exemptions from filing under FINRA Rule 5123(b)(1)(A) and (ii) the institutional
customer exemption under FINRA Rule 2111(b).
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3.09
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Restricted Securities. The Purchaser understands that the Securities are being offered in a transaction not involving
any public offering within the meaning of the 1933 Act in a transaction exempt from the registration requirements of the 1933 Act, and will be characterized as “restricted securities” under the federal securities laws inasmuch as they are
being acquired from the Company in a private placement under Section 4(a)(2) of the 1933 Act and that, under such laws and applicable regulations, such Securities may be resold without registration under the 1933 Act only in certain
limited circumstances.
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3.10
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Review and Advisors. The Purchaser has had the opportunity to review with the Purchaser’s own tax advisors the federal,
state and local tax consequences of its purchase of the Securities set forth opposite such Purchaser’s name on the Schedule of Purchasers and the transactions contemplated by this Agreement. The Purchaser is relying solely on the
Purchaser’s own determination as to tax consequences, and on the Purchaser’s own sources of information and advisors with respect to all tax matters, and not on any statements or representations of the Company (other than the
representations and warranties in this Agreement), the Placement Agents or any of their respective agents, and understands that the Purchaser (and not the Company) shall be responsible for the Purchaser’s own tax liability that may arise
as a result of the transactions contemplated by this Agreement. Based on such information as the Purchaser deemed appropriate and without reliance upon the Placement Agents, the Purchaser has independently made its own analysis and
decision to purchase the Securities. The Purchaser has (i) had the opportunity to ask questions of and receive answers directly with respect to its purchase of Securities, and (ii) conducted and completed its own independent due diligence
with respect to the purchase of Securities. Neither such inquiries nor any other due diligence investigation conducted by the Purchaser shall modify, limit or otherwise affect such Purchaser’s right to reasonably rely on the Company’s
representations and warranties contained in this Agreement.
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3.11
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Residency. Such Purchaser’s residence (if an individual) or offices in which its investment decision with respect to the
Securities was made (if an entity) are located at the address immediately below such Purchaser’s name on the Schedule of Purchasers, or as otherwise noted on the Schedule of Purchasers.
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3.12
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Disclosure of Information. The Purchaser has had an opportunity to review Passage’s 1934 Act filings, such audited
financial information of Passage for the years ended December 31, 2024 and December 31, 2025, the Company’s “PIPE Presentation”, including the risk factors in the “PIPE Presentation”, as most recently provided to such Purchaser in
connection herewith, and such other information as the undersigned deems necessary in order to make an investment decision with respect to the Securities, and discuss the Company’s business, management, financial affairs and the terms and
conditions of the offering of the Securities and the terms and related risks of the Merger with the Company’s management. The foregoing, however, does not limit or modify the representations and warranties of the Company in Section 4
of this Agreement or the right of the Purchasers to rely thereon.
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3.13
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Placement Agents. Such Purchaser hereby acknowledges and agrees that it has independently evaluated the merits of its
decision to purchase the Securities, and that (a) the Placement Agents are acting solely as placement agents in connection with the execution, delivery and performance of this Agreement, the Registration Rights Agreement or the Merger
Agreement and are not acting as an underwriter or in any other capacity and is not and shall not be construed as a fiduciary for such Purchaser, the Company or any other Person in connection with the execution, delivery and performance of
this Agreement, the Registration Rights Agreement or the Merger Agreement, (b) the Placement Agents have not made and will not make any representation or warranty, whether express or implied, of any kind or character and has not provided
any advice or recommendation in connection with the execution, delivery and performance of this Agreement, the Registration Rights Agreement or the Merger Agreement and (c) the Placement Agents will not have any responsibility with
respect the business, affairs, financial condition, operations, properties or prospects of, or any other matter concerning the Company.
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3.14
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No Conflicts. The execution, delivery and performance of this Agreement by the Purchaser, the purchase of the Securities
in accordance with their terms and the consummation by the Purchaser of the other transactions contemplated hereby will not conflict with or result in any violation of, breach or default by such Purchaser (with or without notice or lapse
of time, or both) under, conflict with, or give rise to a right of termination, cancellation or acceleration of any obligation, a change of control right or to a loss of a material benefit under (i) any provision of the organizational
documents of the Purchaser, including, without limitation, its incorporation or formation papers, bylaws, indenture of trust or partnership or operating agreement, as may be applicable or (ii) any agreement or instrument, undertaking,
credit facility, franchise, license, judgment, order, ruling, statute, law, ordinance, rule or regulations, applicable to such Purchaser or its respective properties or assets, except, in the case of clause (ii), as would not,
individually or in the aggregate, be reasonably expected to materially delay or hinder the ability of the Purchaser to perform its obligations under this Agreement.
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SECTION 4.
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Representations and Warranties by the Company. The Company represents and warrants to the Purchasers and the Placement
Agents that:
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4.01
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Absence of Changes. The Company has conducted its business only in the ordinary course of business (except for the
execution and performance of this Agreement and the Merger Agreement, and the discussions, negotiations, and transactions related thereto) and since the incorporation of the Company (i) there has not been any change, condition, event,
circumstance, occurrence, result, state of facts or development that has or would reasonably be expected to have a materially adverse effect on the business, condition (financial or otherwise), general affairs, management, prospects,
assets, liabilities, operations, results of operations, stockholders’ equity or financial performance of the Company and its subsidiaries, taken as a whole (a “Material Adverse Effect”);
provided, however, that none of the following, alone or in combination, shall be deemed to constitute, or shall be taken into account in determining whether there has been, a Material Adverse Effect: (A) changes in general economic,
regulatory or political conditions in the United States or changes in conditions in the U.S. financial, credit or securities markets generally (including changes in interest rates and exchange rates) provided that the Company is not
disproportionately affected thereby, (B) changes, conditions or developments in the industries in which the Company operates provided that the Company is not disproportionately affected thereby, (C) material changes in applicable law or
in GAAP or in accounting standards, or any material changes in the interpretation or enforcement of any of the foregoing, (D) acts of war (whether or not declared), sabotage, terrorism, natural disasters, epidemics, pandemics or other
force majeure events provided that the Company is not disproportionately affected thereby, (E) changes resulting from the announcement or pendency of the Merger or any of the transactions contemplated by this Agreement or the Merger
Agreement, and (F) any failure by the Company to meet any internal or published projections, forecasts or revenue or earnings predictions for any period (provided that the underlying causes of such failure may be taken into account in
determining whether there is a Material Adverse Effect to the extent not otherwise excluded by this proviso), (ii) there have been no transactions entered into by the Company or any of its subsidiaries, other than those in the ordinary
course of business (which shall include entering into material licensing and collaboration agreements and preferred stock and convertible note financings) and except as contemplated in this Agreement and the Merger Agreement, which are
material with respect to the Company and its subsidiaries considered as one enterprise, and (iii) there has been no dividend or distribution of any kind declared, paid or made by the Company on any class of its capital stock.
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4.02
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Organization and Good Standing of the Company. The Company and its subsidiaries have been duly organized or incorporated
(as applicable) and are validly existing and in good standing (as applicable) under the laws of their respective jurisdictions of organization or incorporation, and have all necessary power and authority (i) to conduct the business in
which they are engaged in all material respects in the manner in which their respective business is currently being conducted, (ii) to own or lease and use their respective property and assets in the manner in which their respective
property and assets are currently owned or leased and used in all material respects and (iii) to perform their respective obligations under all contracts by which they are bound in all material respects. The Company and its subsidiaries
are each duly qualified as a foreign corporation (or other applicable entity) to transact business and are in good standing in each other jurisdiction in which such qualification is required, whether by ownership or leasing of property or
the conduct of business, except where the failure so to qualify or to be in good standing would not result in a Material Adverse Effect.
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4.03
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Subsidiaries. The Company does not have any subsidiaries, other than the Remix Securities Corporation, and does not
otherwise own any shares of capital stock or any interest in any other Person. The Company does not control directly or indirectly or have any direct or indirect equity participation or similar interest in any corporation, partnership,
limited liability company, joint venture, trust or other business association or entity. The Company owns 100% of the equity interests of each of its subsidiaries.
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4.04
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Validity; Valid Issuance of Securities. The Company has all requisite corporate power and authority to enter into this
Agreement, the Pre-Funded Warrants, the Registration Rights Agreement and the Merger Agreement and to consummate the transactions contemplated by this Agreement, the Pre-Funded Warrants, the Registration Rights Agreement and the Merger
Agreement, subject only to (i) the adoption of the Merger Agreement in accordance with the terms thereof and an amendment to the Company’s certificate of incorporation by the Company’s stockholders under the Delaware General Corporation
Law, (ii) the filing of an amendment to the Company’s certificate of incorporation, and (iii) the consent required by the Company’s stockholders to terminate the Company’s investor agreements. The execution and delivery of this Agreement,
the Pre-Funded Warrants, the Registration Rights Agreement and the Merger Agreement and the consummation of the transactions contemplated by this Agreement, the Pre-Funded Warrants, the Registration Rights Agreement and the Merger
Agreement by the Company have been duly authorized by all necessary corporate action on the part of the Company, subject to obtaining the stockholder approvals set forth above. Assuming the due authorization, execution and delivery by
each Purchaser, this Agreement, the Pre-Funded Warrants, the Registration Rights Agreement and the Merger Agreement each constitute a legal, valid and binding obligation of the Company, enforceable against the Company in accordance with
its terms, except as limited by applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance, and any other laws of general application affecting enforcement of creditors’ rights generally, and as limited by laws
relating to the availability of specific performance, injunctive relief, or other equitable remedies. The Shares are duly authorized and, when issued, sold and delivered in accordance with the terms and for the consideration set forth in
this Agreement, will be validly issued, fully paid and nonassessable and free and clear of any liens or other restrictions, other than restrictions on transfer under applicable state and federal securities laws or such restrictions as the
Purchaser has agreed to in writing with the Company, and will not have been issued in violation of or subject to any preemptive or similar rights created under the Company’s certificate of incorporation, as amended by the certificate of
amendment to be filed immediately prior to the Closing, or bylaws or the Delaware General Corporation Law. The Warrant Shares have been reserved for issuance and, upon issuance pursuant to the terms of the Pre-Funded Warrants against full
payment therefor in accordance with the terms of the Pre-Funded Warrants, will be validly issued, fully paid and nonassessable and free and clear of any liens or other restrictions, other than restrictions on transfer under applicable
state and federal securities laws or such restrictions as the Purchaser has agreed to in writing with the Company, and will not have been issued in violation of or subject to any preemptive or similar rights created under the Company’s
certificate of incorporation, as amended by the certificate of amendment to be filed immediately prior to the Closing, or bylaws or the Delaware General Corporation Law. All of the issued and outstanding shares of capital stock of the
Company have been issued in compliance in all material respects with applicable federal and state securities laws.
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4.05
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Governmental Consents and Filings. Assuming the accuracy of the representations made by the Purchasers in Section 3
hereof and except as set forth in the Merger Agreement and the Registration Rights Agreement and the filing of the certificate of amendment to the Company’s certificate of incorporation, no material consent, approval, order or
authorization of, or registration, qualification, designation, declaration or filing with, any Governmental Entity (as defined below) is required on the part of the Company in connection with the consummation of the transactions
contemplated by this Agreement, except for filings pursuant to Regulation D of the 1933 Act and applicable state securities laws, which have been made or will be made in a timely manner.
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4.06
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Absence of Violations, Defaults and Conflicts. Neither the Company nor any of its subsidiaries is (i) in violation of
its charter, bylaws or similar organizational document, (ii) in default in the performance or observance of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, deed of trust, loan or credit
agreement, note, lease or other agreement or instrument to which the Company or any of its subsidiaries is a party or by which it or any of them may be bound or to which any of the properties or assets of the Company or any subsidiary is
subject (collectively, “Agreements and Instruments”), except for such defaults that would not, singly or in the aggregate, result in a Material Adverse
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4.07
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Absence of Proceedings. There is no action, suit, proceeding or, to the knowledge of the Company, inquiry or
investigation, before or brought by any Governmental Entity now pending or, to the knowledge of the Company, threatened, against or affecting the Company or any of its subsidiaries, which would have or reasonably be expected to be
material to the Company and its subsidiaries, taken as a whole, or materially and adversely affect the validity of the Securities or the legal authority of the Company to perform its obligations hereunder and timely comply in all material
respects with the terms of this Agreement or the Merger Agreement.
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4.08
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Possession of Licenses and Permits. The Company and its subsidiaries possess such permits, licenses, approvals, consents
and other authorizations (collectively, “Governmental Licenses”) issued by the appropriate Governmental Entities necessary to conduct the business now operated by them, except
where the failure so to possess would not, singly or in the aggregate, reasonably be expected to be material to the Company or any of its subsidiaries, taken as a whole. The Company and its subsidiaries are in compliance with the terms
and conditions of all Governmental Licenses, except where the failure so to comply would not, singly or in the aggregate, reasonably be expected to be material to the Company or any of its subsidiaries, taken as a whole. All of the
Governmental Licenses are valid and in full force and effect, except when the invalidity of such Governmental Licenses or the failure of such Governmental Licenses to be in full force and effect would not, singly or in the aggregate,
reasonably be expected to be material to the Company or any of its subsidiaries, taken as a whole. Neither the Company nor any of its subsidiaries has received any notice of proceedings relating to the revocation or modification of any
Governmental Licenses which, singly or in the aggregate, if the subject of an unfavorable decision, ruling or finding, would reasonably be expected to be material to the Company or any of its subsidiaries, taken as a whole.
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4.09
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Payment of Taxes. All United States federal income tax returns of the Company and its subsidiaries required by law to be
filed have been filed and all U.S. federal income taxes shown by such returns or otherwise assessed, which are due and payable, have been paid, except assessments against which appeals have been or will be promptly taken and as to which
adequate reserves have been provided. No assessment in connection with United States federal tax returns has been made against the Company. The Company and its subsidiaries have filed all other material tax returns that are required to
have been filed by them or have timely requested extensions thereof pursuant to applicable foreign, state, local or other law, and has paid all material taxes due pursuant to such returns or all material taxes due and payable pursuant to
any assessment received by the Company and its subsidiaries, except for such taxes, if any, as are being contested in good faith and as to which adequate reserves have been established by the Company or its subsidiaries. There are no
(i) examinations or audits of any tax return of the Company or its subsidiaries that are pending or in progress involving any material taxes or (ii) unresolved written claims that have been received by the Company or its subsidiaries from
any governmental body in any jurisdiction where the Company or any such subsidiary, as applicable, does not file tax returns that the Company or any such subsidiary is or may be subject to taxes in
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4.10
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Insurance. The Company and the subsidiaries carry or are entitled to the benefits of insurance, with what the Company
reasonably believes to be financially sound and reputable insurers, in such amounts and covering such risks as is adequate for the conduct of their respective businesses and the value of their respective properties and assets, and all
such insurance is in full force and effect. The Company has no reason to believe that it or any of the subsidiaries will not be able (i) to renew its existing insurance coverage as and when such policies expire or (ii) to obtain
comparable coverage from similar institutions as may be necessary or appropriate to conduct its business as now conducted and at a cost that would not reasonably be expected to be material to the Company or any of its subsidiaries, taken
as a whole.
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4.11
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Investment Company Act. The Company is not required, and immediately after the sale of the Securities hereunder will not
be required, to be registered as an “investment company” under the Investment Company Act of 1940, as amended.
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4.12
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Studies, Tests and Preclinical and Clinical Trials. The pre-clinical studies and clinical trials conducted by or, to the
Company’s knowledge, on behalf of or sponsored by the Company and its subsidiaries with respect to the Company’s product candidates (collectively “Studies”) were, and if still
pending are, being conducted in all material respects in accordance with all Applicable Laws (as defined below) to which such Studies are or were subject. Neither the Company nor its subsidiaries has received any written notices or
correspondence from any Governmental Entity requiring or threatening the termination, adverse modification or suspension of any ongoing or proposed Studies other than in connection with ordinary course communications with respect to
modifications in connection with the design and implementation of such Studies, and, to the Company’s knowledge, there are no reasonable grounds for the same.
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4.13
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Regulatory Matters. Except in each case as would not, singly or in the aggregate, have or reasonably be expected to have
a Material Adverse Effect, since June 1, 2023: (i) neither the Company nor any of its subsidiaries has received any FDA Form 483, notice of adverse finding, warning letter or other correspondence or written notice from the U.S. Food and
Drug Administration (“FDA”) or any other Governmental Entity alleging or asserting noncompliance with (x) any statutes, laws, ordinances, rules and regulations applicable to the
Company and its subsidiaries for the ownership, testing, development, manufacture, packaging, processing, use, distribution, marketing, labeling, promotion, sale, offer for sale, storage, import, export or disposal of any product or
product candidate manufactured or distributed by the Company, including without limitation, the Federal Food, Drug, and Cosmetic Act, 21 U.S.C. § 301, et seq., similar laws enforced by other Governmental Entities and the regulations
promulgated pursuant to such laws (collectively, “Applicable Laws”) or (y) any licenses, certificates, approvals, clearances, authorizations, permits and supplements or
amendments thereto required by any such Applicable Laws and/or to carry on its businesses as now conducted (“Authorizations”) and (ii) the Company and each of its subsidiaries
has filed, obtained, maintained or submitted all reports, documents, forms, notices, applications, records, claims, submissions and supplements or amendments as required by any Applicable Laws or Authorizations and that all such reports,
documents, forms, notices, applications, records, claims, submissions and supplements or amendments were complete, correct and not misleading on the date filed (or were corrected or supplemented by a subsequent submission).
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4.14
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Compliance With Laws. The Company has complied in all material respects with, is not in material violation of, and has
not received any written notice alleging any violation with respect to, any applicable provisions of any statute, law or regulation with respect to the conduct of its business, or the ownership or operation of its properties or assets.
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4.15
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Information Provided. The information to be supplied by or on behalf of the Company for inclusion or incorporation by
reference in the Registration Statement (as defined in the Merger Agreement), or supplied by or on behalf of the Company for inclusion in any filing pursuant to Rule 165 and Rule 425 under the 1933 Act or Rule 14a-12 under the 1934 Act,
including the Company Presentation (each a “Regulation M-A Filing”), shall not, at the time the Registration Statement or any such Regulation M-A Filing is filed with the
Securities and Exchange Commission (the “Commission”), at any time it is amended or supplemented or at the time the Registration Statement is declared effective by the
Commission, as applicable, contain any untrue statement
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4.16
|
No Additional Agreements. The Company does not have any agreement or understanding with any Purchaser or any other
person with respect to the transactions contemplated by this Agreement other than as specified in this Agreement. The Company has no other agreements or understandings (including, without limitation, side letters) with any Purchaser to
purchase any of the Securities on terms more favorable to such Purchaser than as set forth herein.
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|
4.17
|
Private Placement. None of the Company, its subsidiaries or any person acting on its or their behalf, has, directly or
indirectly, made any offers or sales of any security or solicited any offers to buy any security under any circumstances that would require registration under the 1933 Act of the Securities being sold pursuant to this Agreement. Assuming
the accuracy of the representations and warranties of the Purchasers contained in Section 3 hereof, the issuance and sale of the Securities is exempt from registration under the 1933 Act.
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|
4.18
|
No Disqualification Events. No “bad actor” disqualifying event described in Rule 506(d)(1)(i)-(viii) of the 1933 Act (a
“Disqualification Event”) is applicable to the Company or, to the Company’s knowledge, any Company Covered Person (as defined below), except for a Disqualification Event as to
which Rule 506(d)(2)(ii–iv) or (d)(3) is applicable. “Company Covered Person” means, with respect to the Company as an “issuer” for purposes of Rule 506 promulgated under the
1933 Act, any person listed in the first paragraph of Rule 506(d)(1). The Company is not aware of any Person (other than any Company Covered Person) that has been or will be paid (directly or indirectly) remuneration for solicitation of
purchasers in connection with the sale of the Securities pursuant to this Agreement. The Company has complied, to the extent applicable, with its disclosure obligations under Rule 506(e).
|
|
4.19
|
No General Solicitation. Neither the Company nor, to the Company’s knowledge, any person acting on behalf of the Company
has, directly or indirectly, offered or sold any of the Securities by any form of general solicitation or general advertising.
|
|
4.20
|
No Integrated Offering. Assuming the accuracy of the Purchasers’ representations and warranties set forth in Section 3
hereof, none of the Company, its subsidiaries nor, to the Company’s knowledge, any of its or their Affiliates or any Person acting on its or their behalf has, directly or indirectly, at any time within the past six (6) months, made any
offers or sales of any Company security or solicited any offers to buy any security under circumstances that would (i) eliminate the availability of the exemption from registration under Section 4(a)(2) and/or Regulation D under the 1933
Act in connection with the offer and sale by the Company of the Securities as contemplated hereby or (ii) cause the offering of the Securities pursuant to this Agreement to be integrated with prior offerings by the Company for purposes of
any applicable law, regulation or stockholder approval provisions.
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|
4.21
|
Brokers. Other than the Placement Agents, there is no broker, investment banker, financial advisor, finder or other
person which has been retained by or is authorized to act on behalf of the Company that is entitled to any fee or commission in connection with the execution of this Agreement and the consummation of the transactions contemplated hereby
(other than the Merger), other than RBC Capital Markets L.L.C. and Canaccord Genuity, capital markets advisors to the Company.
|
|
4.22
|
Additional Representations and Warranties. The Company’s representations and warranties set forth in the Merger
Agreement in Sections 3.3 (Authority; Binding Nature of Agreement), 3.6 (Capitalization), 3.7 (Financial Statements), 3.10 (Title to Assets), 3.11 (Real Property; Leasehold), 3.12 (Intellectual Property), 3.13 (Agreements, Contracts and
Commitments), 3.14 (Compliance; Permits; Restrictions) (except with respect to the first sentence of clause (a) thereof and with respect to clauses (e) and (h) thereof),
|
|
4.23
|
Merger Agreement. The Purchasers have been provided with true, complete and correct copies of the Merger Agreement and
the Remix Disclosure Schedule (as defined in the Merger Agreement) in the form originally executed, and there have been no amendments or waivers thereto other than those as to which the Purchasers have been advised in writing.
|
|
4.24
|
Employee Agreements. To the Company’s knowledge, each current and former employee, consultant and officer of the Company
has executed an agreement with the Company regarding confidentiality, proprietary information and assignment of inventions and intellectual property rights (the “Confidential
Information Agreements”). To the Company’s knowledge, no current or former employee or consultant has excluded works or inventions from his or her assignment of inventions pursuant to such person’s Confidential Information
Agreement. To the Company’s knowledge, no employee or consultant is in violation of any agreement described in this Section 4.24.
|
|
4.25
|
Anti-Bribery and Anti-Money Laundering Laws; Sanctions. Each of the Company, its subsidiaries and, to the knowledge of
the Company, any of their respective officers, directors, supervisors, managers, agents, or employees are and have at all times been in compliance with and its participation in the offering will not violate: (A) anti-bribery laws,
including but not limited to, any applicable law, rule, or regulation of any locality, including but not limited to any law, rule, or regulation promulgated to implement the OECD Convention on Combating Bribery of Foreign Public Officials
in International Business Transactions, signed December 17, 1997, the U.S. Foreign Corrupt Practices Act of 1977, as amended, the U.K. Bribery Act 2010, or any other law, rule or regulation of similar purposes and scope, (B) anti-money
laundering laws, including, but not limited to, applicable federal, state, international, foreign or other laws, regulations or government guidance regarding anti-money laundering, including, without limitation, Title 18 US. Code sections
1956 and 1957, the Patriot Act, the Bank Secrecy Act, and international anti-money laundering principles or procedures by an intergovernmental group or organization, such as the Financial Action Task Force on Money Laundering, of which
the United States is a member and with which designation the United States representative to the group or organization continues to concur, all as amended, and any executive order, directive, or regulation pursuant to the authority of any
of the foregoing, or any orders or licenses issued thereunder, or (C) except as would not reasonably be expected, individually or in the aggregate, to result in a Material Adverse Effect, any laws with respect to import and export control
and economic sanctions, including the U.S. Export Administration Regulations, the U.S. International Traffic in Arms Regulations, and economic sanctions regulations and executive orders administered by the U.S. Department of the Treasury
Office of Foreign Asset Control.
|
|
4.26
|
Reliance by Purchasers. The Company acknowledges that each Purchaser will rely upon the truth and accuracy of, and the
Company’s compliance with, the representations, warranties, agreements, acknowledgements and understandings of the Company set forth in this Agreement.
|
|
SECTION 5.
|
Covenants.
|
|
5.01
|
Further Assurances. At or prior to Closing, each party agrees to cooperate and generally do such reasonable acts and
things in good faith as may be necessary to timely satisfy each of the conditions to be satisfied by it as provided in Section 6 of this Agreement and effectuate the intents and purposes of this Agreement subject to the terms and
conditions hereof.
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|
5.02
|
Disclosure of Transactions and Other Material Information. The Company shall or shall cause Passage to, (i) on or before
9:00 a.m., New York City time, within one Business Day immediately following the Effective Date (or if this Agreement is executed between midnight and 9:00 a.m., New York City time, on any Business Day, no later than 9:01 a.m. on the
Effective Date), issue one or more press releases and/or file with the Commission a Current Report on Form 8-K (collectively with the press release, the “Disclosure Document”,
and the actual issuance or acceptance (as applicable) of the filing of such press releases or Current Report on Form 8-K, the “Disclosure Time”) disclosing all material terms of
the transactions contemplated hereby and
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|
5.03
|
Concurrent Financing Restructuring. In the event the structure of the Concurrent Financing (as defined in the Merger
Agreement) either violates applicable Law (as defined in the Merger Agreement) or materially and adversely affects Passage’s ability to cause the Registration Statement to become effective in a timely manner, and in any event 60 days
prior to the Outside Date (as defined in, and as may be extended in accordance with, the Merger Agreement), then the Company and Purchasers shall cooperate and use commercially reasonable efforts to cause the Concurrent Financing to be
amended, modified and/or restructured such that such investment occurs as a direct acquisition of shares of Passage Common Stock (as defined in the Merger Agreement) substantially contemporaneously with the Closing in a manner which
preserves to the extent possible, the amount of funds ultimately received by Passage and its subsidiaries, and the number of shares of Passage Common Stock ultimately held by each Purchaser in respect of such amounts as though the
Concurrent Financing and the Merger pursuant to the Merger Agreement have been consummated according to their respective terms.
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|
5.04
|
Expenses. The Company and each Purchaser is liable for, and will pay, its own expenses incurred in connection with the
negotiation, preparation, execution and delivery of this Agreement, including, without limitation, attorneys’ and consultants’ fees and expenses.
|
|
5.05
|
Form S-4. From the date hereof until the Closing Date, the Company shall use commercially reasonable efforts to ensure
the Registration Statement will register the issuance of the shares of Passage Common Stock to be issued in exchange for the Securities, subject to and in accordance with the terms of the Merger Agreement, to the Purchasers that are not
affiliates of the Company.
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5.06
|
Blue Sky Laws. The Company, on or before the Closing Date, shall take such action as the Company shall reasonably
determine is necessary in order to obtain an exemption for or to qualify the Securities for sale to each Purchaser at the Closing pursuant to this Agreement under applicable securities or “blue sky” laws of the states of the United States
(or to obtain an exemption from such qualification). The Company shall make all filings and reports relating to the offer and sale of the Securities required under applicable securities or “blue sky” laws of the states of the United
States following the Closing Date.
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|
5.07
|
No Amendment or Waiver of Merger Agreement Terms. The Company shall not amend, modify or waive (or approve an amendment,
modification or a waiver requested by Passage of, or fail to contest an action regarding a breach of) any provision of the Merger Agreement in a manner that would reasonably be expected to materially and adversely affect the benefits that
the Purchaser would reasonably expect to receive pursuant to this Agreement without the consent of each Purchaser, it being agreed that any amendment or modification
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|
5.08
|
Equal Treatment of Purchasers. No consideration shall be offered or paid to any Purchaser to amend or consent to a
waiver or modification of any provision of this Agreement unless the same consideration is also offered to all of the Purchasers. For clarification purposes, this provision constitutes a separate right granted to each Purchaser by the
Company and negotiated separately by each Purchaser and shall not in any way be construed as the Purchasers acting in concert or as a group with respect to the purchase, disposition or voting of shares of Common Stock or otherwise.
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|
5.09
|
Indemnification.
|
|
(a)
|
The Company agrees to indemnify and hold harmless each Purchaser and its Affiliates, and their respective directors, officers,
trustees, members, stockholders, partners, managers, employees, investment advisers and agents (collectively, the “Indemnified Persons”), from and against any and all losses,
claims, damages, liabilities and expenses (including without limitation reasonable and documented attorneys’ fees and disbursements and other documented out-of-pocket expenses reasonably incurred in connection with investigating,
preparing or defending any action, claim or proceeding, pending or threatened and the costs of enforcement thereof) to which such Indemnified Person may become subject as a result of any breach of representation, warranty, covenant or
agreement made by or to be performed on the part of the Company under this Agreement or the Registration Rights Agreement, and will reimburse any such Indemnified Person for all such amounts as they are incurred by such Indemnified
Person.
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|
(b)
|
Any person entitled to indemnification hereunder shall (i) give prompt written notice to the indemnifying party of any claim
with respect to which it seeks indemnification and (ii) permit such indemnifying party to assume the defense of such claim with counsel reasonably satisfactory to the indemnified party; provided that any person entitled to indemnification
hereunder shall have the right to employ separate counsel and to participate in the defense of such claim, but the fees and expenses of such counsel shall be at the expense of such person unless (a) the indemnifying party has agreed in
writing to pay such fees or expenses, (b) the indemnifying party shall have failed to assume the defense of such claim and employ counsel reasonably satisfactory to such person or (c) in the reasonable judgment of any such person, based
upon written advice of its counsel, a conflict of interest exists between such person and the indemnifying party with respect to such claims (in which case, if the person notifies the indemnifying party in writing that such person elects
to employ separate counsel at the expense of the indemnifying party, the indemnifying party shall not have the right to assume the defense of such claim on behalf of such person); and provided, further, that the failure of any indemnified
party to give written notice as provided herein shall not relieve the indemnifying party of its obligations hereunder, except to the extent that such failure to give notice shall materially adversely affect the indemnifying party in the
defense of any such claim or litigation. It is understood that the indemnifying party shall not, in connection with any proceeding in the same jurisdiction, be liable for fees or expenses of more than one separate firm of attorneys at any
time for all such indemnified parties. No indemnifying party will, except with the consent of the indemnified party, which consent shall not be unreasonably withheld, conditioned or delayed, consent to entry of any judgment or enter into
any settlement unless such judgment or settlement (i) imposes no liability or obligation on, (ii) includes as an unconditional term thereof the giving of a complete, explicit and unconditional release from the party bringing such
indemnified claims of all liability of the indemnified party in respect of such claim or litigation in favor of, and (iii) does not include any admission of fault, culpability, wrongdoing, or malfeasance by or on behalf of, the
indemnified party. No indemnified party will, except with the consent of the indemnifying party, which consent shall not be unreasonably withheld, conditioned or delayed, consent to entry of any judgment or enter into any settlement.
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SECTION 6.
|
Conditions of Closing.
|
|
6.01
|
Conditions of the Purchasers’ Obligations at the Closing. The obligations of each Purchaser under Section 2
hereof are subject to the fulfillment, at or prior to the Closing, of all of the following conditions, unless otherwise waived by such Purchaser solely as to itself.
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|
(a)
|
Representations and Warranties. The representations and warranties of the Company contained in this Agreement shall be
true and correct in all material respects on the Effective Date, and shall be true and correct
|
|
(b)
|
Performance. The Company shall have performed and complied in all material respects with all covenants, agreements,
obligations and conditions contained in this Agreement that are required to be performed or complied with by it on or prior to the Closing Date.
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|
(c)
|
Compliance Certificate. The Chief Executive Officer of the Company shall have delivered to the Purchasers at the Closing
Date a certificate, in form and substance reasonably acceptable to the Purchasers, certifying that the conditions specified in Sections 6.01(a), 6.01(b), 6.01(f), 6.01(j), 6.01(k) and 6.01(l) of
this Agreement have been fulfilled.
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|
(d)
|
Qualification under Securities Laws. All registrations, qualifications, permits and approvals, if any, required under
applicable securities laws shall have been obtained for the lawful execution, delivery and performance of this Agreement.
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(e)
|
Secretary’s Certificate. The Secretary of the Company shall have delivered to the Purchasers at the Closing a
certificate, in form and substance reasonably acceptable to the Purchasers (such consent not to be unreasonably withheld, conditioned or delayed), certifying (i) the certificate of incorporation and bylaws of the Company, (ii)
authorization of the Board of Directors of the Company approving this Agreement and the transactions contemplated under this Agreement (including the Merger Agreement) and (iii) as to a certificate evidencing the good standing of the
Company in Delaware issued by the Secretary of State of Delaware, as of a date within five Business Days of the Closing Date.
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(f)
|
Merger. All conditions to the closing of the Merger shall have been satisfied or waived (other than the Closing
hereunder and other than those conditions which, by their nature, are to be satisfied at the closing of the transactions contemplated by the Merger Agreement, but subject to the satisfaction of such conditions as of the closing of the
transactions contemplated by the Merger Agreement), and the closing of the Merger shall be set to occur substantially concurrently with the Closing hereunder. The Merger Agreement or any provision thereof shall not have been amended,
modified, or waived in contravention of Section 5.07 hereof.
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|
(g)
|
No Injunction. No statute, rule, regulation, executive order, decree, ruling or injunction shall have been enacted,
entered, promulgated or endorsed by any Governmental Entity of competent jurisdiction that prohibits the consummation of any of the transactions contemplated by this Agreement.
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(h)
|
Registration Rights Agreement. The Company shall have delivered the fully executed Registration Rights Agreement.
|
|
(i)
|
Opinion of Company Counsel. The Purchasers and the Placement Agents shall have received from Latham & Watkins LLP,
counsel for the Company, an opinion, dated as of the Closing, in the form and substance typical for transactions of this nature.
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(j)
|
Registration Statement; Proxy Statement/Prospectus. The Registration Statement shall have become effective under the
1933 Act and no stop order suspending the effectiveness of the Registration Statement shall have been issued and no proceeding for that purpose, and no similar proceeding with respect to the Registration Statement shall have been, to the
Company’s knowledge, initiated or threatened in writing by the Commission or its staff.
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(k)
|
Nasdaq. The shares of Passage’s common stock, par value $0.0001 per share (the “Passage Common Stock”) to be issued in the Merger (including, for the avoidance of doubt, shares of Passage Common Stock issued in exchange for the Securities issued hereunder) shall have been approved for
listing (subject to official notice of issuance) on Nasdaq.
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|
(l)
|
Financing Amount. The Company shall receive at Closing aggregate proceeds from the purchase of Securities pursuant to
this Agreement of not less than the Total Subscription Amount.
|
|
(m)
|
No Material Adverse Effect. Since the Effective Date, no Material Adverse Effect shall have occurred.
|
|
6.02
|
Conditions of the Company’s Obligations. The obligations of the Company under Section 2 hereof are subject to
the fulfillment, at or prior to the Closing, of all of the following conditions, any of which may be waived in whole or in part by the Company in its absolute discretion.
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|
(a)
|
Representations and Warranties. The representations and warranties of the Purchasers contained in this Agreement shall
be true and correct as of the Effective Date and true and correct in all material respects on and as of the Closing Date with the same effect as though such representations and warranties had been made on and as of the Closing Date
(except to the extent expressly made as of an earlier date in which case shall be as of such earlier date).
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|
(b)
|
Performance. Each Purchaser shall have performed and complied with all covenants, agreements, obligations and conditions
contained in this Agreement that are required to be performed or complied with by it on or prior to the Closing Date.
|
|
(c)
|
Qualification under Securities Laws. All registrations, qualifications, permits and approvals, if any, required under
applicable securities laws shall have been obtained for the lawful execution, delivery and performance of this Agreement.
|
|
(d)
|
Merger. All conditions to the closing of the Merger shall have been satisfied or waived (other than the Closing
hereunder and other than those conditions which, by their nature, are to be satisfied at the closing of the transactions contemplated by the Merger Agreement), and the closing of the Merger shall be set to occur substantially concurrently
with the Closing hereunder.
|
|
(e)
|
Payment. The Company shall have received payment, by wire transfer of immediately available funds, in the full amount of
the Subscription Amount of each Purchaser at the Closing as set forth on the Schedule of Purchasers.
|
|
(f)
|
Injunction. The purchase of and payment for the Securities by each Purchaser shall not be prohibited or enjoined by any
law or governmental or court order or regulation.
|
|
SECTION 7.
|
Transfer Restrictions; Restrictive Legend.
|
|
7.01
|
Transfer Restrictions.
|
|
(a)
|
Each Purchaser understands that the Company may, as a condition to the transfer of any of the Securities, require that the
request for transfer be accompanied by a certificate and/or an opinion of counsel reasonably satisfactory to the Company, to the effect that the proposed transfer does not result in a violation of the 1933 Act, unless such transfer is
covered by an effective registration statement or is exempt from the registration requirements of the 1933 Act, including under Rule 144. It is understood that the certificates evidencing the Securities may bear substantially the
following legend:
|
|
(b)
|
Upon request by a Purchaser, the Company shall use commercially reasonable efforts to cause the transfer agent to remove any
restrictive legend as promptly as reasonably practicable in connection with any sale of any Securities bearing such restrictive legend pursuant to Rule 144 or any other applicable exemption from the registration requirements of the
Securities Act; provided the Company has received customary representations and other documentation reasonably acceptable to the Company in connection therewith. The Company shall be responsible for the fees of its transfer agent and
counsel to the Company associated with such issuances.
|
|
SECTION 8.
|
Definitions. Unless the context otherwise requires, the terms defined in this Section 8 shall have the meanings
specified for all purposes of this Agreement.
|
|
SECTION 9.
|
Miscellaneous.
|
|
9.01
|
Waivers and Amendments. Neither this Agreement, nor any provision hereof, may be changed, waived, amended or modified
orally or by course of dealing, but only by an instrument in writing executed by the Company and the Purchaser Majority, provided that, (a) if any, change, waiver, amendment, modification
disproportionately and adversely impacts a Purchaser (or group of Purchasers), the consent of such disproportionately impacted Purchaser (or group of Purchasers) shall be required and (b) the consent of each Purchaser shall be required
for any change in the Purchase Price or applicable Purchaser’s Subscription Amount, any change in the type of security to be issued to Purchasers at Closing, or the amendment or waiver of Section 9.12 or 9.13 or of any of
the closing conditions set forth in Sections 6.01(a), 6.01(f), 6.01(j), 6.01(k), or 6.01(l).
|
|
9.02
|
Notices. All notices, requests, consents, and other communications under this Agreement shall be in writing and shall be
deemed delivered (a) when delivered, if delivered personally, (b) four Business Days after being sent by registered or certified mail, return receipt requested, postage prepaid, (c) one Business Day after being
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|
|
|
|
|
|||
|
|
|
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if to the Company:
|
|||
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|
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Remix Therapeutics, Inc.
|
|||
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|
|
100 Forge Road, Suite 400
|
|||
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|
|
|
Watertown, MA 02472
|
|||
|
|
|
|
Attention: Peter Smith
|
|||
|
|
|
|
Email: [***]
|
|||
|
|
|
|
|
|
|
|
|
|
|
|
with a copy to (which shall not constitute notice):
|
|||
|
|
|
|
Latham & Watkins LLP
|
|||
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|
|
200 Clarendon Street
|
|||
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|
|
Boston, MA 02215
|
|||
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|
|
Attention: Peter Handrinos; Leah Sauter; Elisabeth Martin
|
|||
|
|
|
|
Email: [***]
|
|||
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|
|
|||
|
9.03
|
Cumulative Remedies. None of the rights, powers or remedies conferred upon each Purchaser, on the one hand, or the
Company, on the other hand, shall be mutually exclusive, and each such right, power or remedy shall be cumulative and in addition to every other right, power or remedy, whether conferred by this Agreement or now or hereafter available at
law, in equity, by statute or otherwise.
|
|
9.04
|
Successors and Assigns. All the terms and provisions of this Agreement shall be binding upon and inure to the benefit of
and be enforceable by the respective parties hereto, the successors and permitted assigns of each Purchaser and the successors of the Company, whether so expressed or not. None of the Purchasers may assign its rights or obligations hereof
without the prior written consent of the Company, except that a Purchaser may, without the prior consent of the Company, assign its rights to purchase the Securities hereunder to any of its affiliates or to any other investment funds or
accounts managed or advised by the investment manager who acts on behalf of Purchaser (provided each such assignee agrees to be bound by the terms of this Agreement and makes the same
representations and warranties set forth in Section 3 hereof). The Company may not assign its rights or obligations hereof without the consent of the Purchaser Majority. This Agreement shall not inure to the benefit of or be
enforceable by any other person.
|
|
9.05
|
Exculpation and Acknowledgement of Placement Agents. Each party hereto agrees for the express benefit of each of the
Placement Agents, its affiliates and its representatives that:
|
|
(a)
|
Each of the Placement Agents is acting solely as financial advisor to the Company in connection with the sale of the Securities
and is not acting in any other capacity and is not and shall not be construed as a fiduciary for the Purchaser, or any other person or entity in connection with the sale of Securities.
|
|
(b)
|
No Placement Agent or any of its affiliates or any of its representatives (i) shall be liable for any improper payment made in
accordance with the information provided by the Company, (ii) has made or will make any representation or warranty, express or implied, of any kind or character, and has not provided any advice or recommendation to the Purchasers in
connection with the purchase or sale of the Securities, (iii) has any responsibilities as to the validity, accuracy, completeness, value or genuineness, as of any date, of any information, certificates or documentation delivered by or on
behalf of the Company pursuant to this Agreement, the Registration Rights Agreement or the Merger Agreement, or in connection with any of the transactions contemplated by such agreements, including any valuation, offering or marketing
materials, or any omissions from such materials; or (iv) shall be liable or have any obligation (including without limitation, for or with respect to any losses, claims, damages, obligations, penalties, judgments, awards, liabilities,
costs, expenses or disbursements incurred by the Purchaser, the Company or any other person or entity), whether in contract, tort or otherwise to the Purchaser or to any person claiming through the Purchaser, (x) for any action taken,
suffered or omitted by any of them in good faith and reasonably believed to be authorized or within the
|
|
(c)
|
The Placement Agents, their respective affiliates and their respective representatives shall be entitled to rely on, and shall
be protected in acting upon, any certificate, instrument, opinion, notice, letter or any other document or security delivered to any of them by or on behalf of the Company.
|
|
(d)
|
Each Purchaser acknowledges that each of the Placement Agents is acting as a placement agent on a “best efforts” basis for the
Securities being offered hereby and will be compensated by the Company for acting in such capacity. Each Purchaser represents that such Purchaser was contacted regarding the sale of the Securities by a Placement Agent or the Company (or
an authorized agent or representative thereof) with whom the Purchaser entered into a verbal or written confidentiality agreement.
|
|
(e)
|
Each Purchaser represents that it is making this investment based on the results of its own due diligence investigation of the
Company, and has not relied on any information or advice furnished by or on behalf of either of the Placement Agents in connection with the transactions contemplated hereby. Each Purchaser acknowledges that neither of the Placement Agents
has made, and will not make, any representations and warranties with respect to the Company or the transactions contemplated hereby, and the Purchaser will not rely on any statements made by either of the Placement Agents, orally or in
writing, to the contrary.
|
|
9.06
|
Headings. The headings of the Sections and paragraphs of this Agreement have been inserted for convenience of reference
only and do not constitute a part of this Agreement.
|
|
9.07
|
Governing Law; Jurisdiction. This Agreement shall be governed by, and construed in accordance with, the laws of the
State of Delaware, regardless of the laws that might otherwise govern under applicable principles of conflicts of laws. IN ANY ACTION OR PROCEEDING BETWEEN ANY OF THE PARTIES ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OF THE
CONTEMPLATED TRANSACTIONS, EACH OF THE PARTIES: (A) IRREVOCABLY AND UNCONDITIONALLY CONSENTS AND SUBMITS TO THE EXCLUSIVE JURISDICTION AND VENUE OF THE COURT OF CHANCERY OF THE STATE OF DELAWARE OR, TO THE EXTENT SUCH COURT DOES NOT HAVE
SUBJECT MATTER JURISDICTION, THE SUPERIOR COURT OF THE STATE OF DELAWARE OR THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE, (B) AGREES THAT ALL CLAIMS IN RESPECT OF SUCH ACTION OR PROCEEDING SHALL BE HEARD AND DETERMINED
EXCLUSIVELY IN ACCORDANCE WITH CLAUSE (A) OF THIS SECTION 9.07, (C) WAIVES ANY OBJECTION TO LAYING VENUE IN ANY SUCH ACTION OR PROCEEDING IN SUCH COURTS, (D) WAIVES ANY OBJECTION THAT SUCH COURTS ARE AN INCONVENIENT FORUM OR DO
NOT HAVE JURISDICTION OVER ANY PARTY, (E) AGREES THAT SERVICE OF PROCESS UPON SUCH PARTY IN ANY SUCH ACTION OR PROCEEDING SHALL BE EFFECTIVE IF NOTICE IS GIVEN IN ACCORDANCE WITH SECTION 9.02 OF THIS AGREEMENT AND (F) IRREVOCABLY
WAIVES THE RIGHT TO TRIAL BY JURY.
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9.08
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Survival. The representations and warranties of the Company and the Purchasers contained in Sections 3 and 4
and the agreements and covenants set forth in Sections 5 and 9 shall survive the Closing for the applicable statute of limitations (unless such covenant or agreement terminates earlier in accordance with its terms), which
shall not be extended by Section 8106(c) of Title 10 of the Delaware Code or any similar law. Each Purchaser shall be responsible only for its own representations, warranties, agreements and covenants hereunder.
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9.09
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Confidential Information.
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(a)
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Each Purchaser covenants that until such time as the transactions contemplated by this Agreement and any material non-public
information provided to such Purchaser are publicly disclosed by the Company in accordance with Section 5.02 (or earlier termination of this Agreement), such Purchaser will maintain the confidentiality of all disclosures made to
it in connection with this transaction (including the existence and
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(b)
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The Company may request from the Purchasers such reasonable and customary additional information as the Company may deem
necessary to evaluate the eligibility of a Purchaser to acquire the Securities, and such Purchaser shall promptly provide such information as may reasonably be requested to the extent readily available; provided, that the Company agrees
to keep any such information provided by such Purchaser confidential, except (i) as required by the federal securities laws, rules or regulations and (ii) to the extent such disclosure is required by other laws, rules or regulations, at
the request of the staff of the Commission or regulatory agency or under the regulations of Nasdaq. The Purchaser acknowledges that the Company or Passage may file a copy of this Agreement and the Registration Rights Agreement with the
Commission as exhibits to a periodic report, current report or a registration statement of the Company or Passage.
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9.10
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Counterparts; Effectiveness. This Agreement may be executed in any number of counterparts and by different parties
hereto in separate counterparts, with the same effect as if all parties had signed the same document. All such counterparts (including counterparts delivered by facsimile or other electronic format) shall be deemed an original, shall be
construed together and shall constitute one and the same instrument. This Agreement shall become effective when each party hereto shall have received counterparts hereof signed by all of the other parties hereto.
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9.11
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Entire Agreement. This Agreement, together with the Registration Rights Agreement, contains the entire agreement among
the parties hereto with respect to the subject matter hereof and, except as set forth below, this agreement supersedes and replaces all other prior agreements, written or oral, among the parties hereto with respect to the subject matter
hereof, including the Original Agreement. Notwithstanding the foregoing or anything to the contrary in this Agreement and subject to Section 5.02, this Agreement shall not supersede any confidentiality or other non-disclosure
agreements that may be in place between the Company and any Purchaser as of the date hereof.
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9.12
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Severability. If any provision of this Agreement shall be found by any court of competent jurisdiction to be invalid or
unenforceable, the parties hereby waive such provision to the extent that it is found to be invalid or unenforceable. Such provision shall, to the maximum extent allowable by law, be modified by such court so that it becomes enforceable,
and, as modified, shall be enforced as any other provision hereof, all the other provisions hereof continuing in full force and effect.
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9.13
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Independent Nature of Purchasers’ Obligations and Rights. The obligations of each Purchaser under this Agreement are
several and not joint with the obligations of any other Purchaser, and no Purchaser shall be responsible in any way for the performance of the obligations of any other Purchaser under this Agreement. Nothing contained herein, and no
action taken by any Purchaser pursuant hereto, shall be deemed to constitute the Purchasers as, and the Company acknowledges that the Purchasers do not so constitute, a partnership, an association, a joint venture or any other kind of
entity, or create a presumption that the Purchasers are in any way acting in concert or as a group, and the Company will not assert any such claim with respect to such obligations or the transactions contemplated by this Agreement, and
the Company acknowledges that the Purchasers are not acting in concert or as a group with respect to such obligations or the transactions contemplated by this Agreement. The Company acknowledges and each Purchaser confirms that it has
independently participated in the negotiation of the transaction contemplated hereby with the advice of its own counsel and advisors. Each Purchaser shall be entitled to independently protect and enforce its rights, including, without
limitation, the rights arising out of this Agreement, and it shall not be necessary for any other Purchaser to be joined as an additional party in any proceeding for such purpose. The Company has elected to provide all Purchasers with the
same terms for the convenience of the Company and not because it was required or requested to do so by any Purchaser.
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9.14
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Termination. This Agreement shall terminate and be void and of no further force and effect, and all obligations of the
parties hereunder shall terminate without any further liability on the part of any party in respect thereof, upon the earlier to occur of (a) such date and time that the Merger Agreement is terminated in accordance with its terms, (b)
upon the mutual written agreement of the Company and the Purchaser, (c) if, on the Closing Date, any of the conditions of Closing set forth in Section 6 have not been satisfied as of the time required hereunder to be so satisfied
or waived by the party entitled to grant such waiver and, as a result thereof, the
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9.15
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No Third-Party Beneficiaries. This Agreement is intended for the benefit of the parties hereto and their respective
successors and permitted assigns and is not for the benefit of, nor may any provision hereof be enforced by, any other Person; provided, however, that
each of the Placement Agents will be entitled to rely, as an express third-party beneficiary, on the representations and warranties of the Purchasers and the Company set forth in Section 3 and Section 4 hereof, the
covenants set forth in Section 5 hereof and Sections 9.04, 9.05, 9.08, 9.13 and 9.14 hereof.
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9.16
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Amendment and Restatement. The Company and each of the Purchasers hereby agree that the Original Agreement is hereby amended,
restated, superseded and replaced in its entirety by this Agreement.
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COMPANY:
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REMIX THERAPEUTICS, INC.
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a Delaware corporation
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By:
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Name:
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Title:
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PURCHASER:
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[•]
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By:
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Name:
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Title:
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Beneficial Ownership Limitation for Pre-Funded
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Warrants: [4.99%]/[9.99%]
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1.
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Definitions.
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2.
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Shelf Registration.
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(a)
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On or prior to each Filing Date, the Company shall prepare and file with the Commission a Registration Statement
covering the resale of all of the Registrable Securities that are not then registered on an effective Registration Statement for an offering to be made on a continuous basis pursuant to Rule 415. Each Registration Statement filed
hereunder shall contain (unless otherwise directed by Holders holding at least 85% of Registrable Securities) disclosure substantially in the form of the “Plan of Distribution”
attached hereto as Annex A and substantially in the form of the “Selling Stockholder” section attached hereto as Annex B. Subject to the terms of this
Agreement, the Company shall use commercially reasonable efforts to cause a Registration Statement filed under this Agreement (including, without limitation, under Section 3(c)) to be declared effective under the Securities Act as
promptly as possible after the filing thereof, but in any event no later than the applicable Effectiveness Date, and shall use its commercially reasonable efforts to keep such Registration Statement continuously effective under
the Securities Act, and to be supplemented and amended to the extent necessary to ensure that such Registration Statement is available or, if not available, that another Registration Statement is available, for the resale of all
Registrable Securities held by the Holders until the earlier of (a) the date that all Registrable Securities covered by such Registration Statement (i) have been sold, thereunder or pursuant to Rule 144, or (ii) may be sold
without volume or manner-of-sale restrictions pursuant to Rule 144 and without the requirement for the Company to be in compliance with the current public information requirement under Rule 144 and (b) three years after the date
of this Agreement (the “Effectiveness Period”). The Company shall telephonically request effectiveness of a Registration Statement as of 5:00 p.m. (New York City time) on
a Trading Day. The Company shall notify the Holders via e-mail of the effectiveness of a Registration Statement no more than one (1) Trading Day following confirmation of effectiveness with the Commission. The Company shall, in
accordance with SEC Guidance, file a final Prospectus with the Commission as required by Rule 424.
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(b)
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Notwithstanding the registration obligations set forth in Section 2(a), if the Commission informs the Company that all
of the Registrable Securities cannot, as a result of the application of Rule 415, be registered for resale as a secondary offering on a single registration statement, the Company agrees to promptly inform each of the Holders
thereof and use commercially reasonable efforts to file amendments to the Initial Registration Statement as required by the Commission, covering the maximum number of Registrable Securities permitted to be registered by the
Commission, on Form S-3 or such other form available to register for resale the Registrable Securities as a secondary offering; with respect to filing on Form S-3 or other appropriate form; provided, however, that
prior to filing such amendment, the Company shall be obligated to use commercially reasonable efforts to advocate with the Commission for the registration of all of the Registrable Securities in accordance with the SEC Guidance.
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(c)
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If at any time the Commission takes the position that the offering of some or all of the Registrable Securities in a
Registration Statement is not eligible to be made on a delayed or continuous basis under the provisions of Rule 415 under the Securities Act (provided, however, the Company shall be obligated to use commercially reasonable efforts
to advocate with the Commission for the registration of all of the Registrable Securities) or requires any Holder to be named as an “underwriter,” the Company shall (i) promptly notify each holder of Registrable Securities thereof
and (ii) make commercially reasonable efforts to persuade the Commission that the offering contemplated by such Registration Statement is a valid secondary offering and not an offering “by or on behalf of the issuer” as defined in
Rule 415 and that none of the Holders is an “underwriter.” Each Holder shall have the right to have its legal counsel, at such Holder’s expense, to review and oversee any registration or matters pursuant to this Section 2(c),
including to comment on any written submission made to the Commission with respect thereto. In the event that, despite the Company’s commercially reasonable efforts and compliance with the terms of this Section 2(c), the
Commission refuses to alter its position, the Company shall (i) remove from such Registration Statement such portion of the Registrable Securities and/or (ii) agree to such restrictions and limitations on the registration and
resale of the Registrable Securities as the Commission may require to assure the Company’s compliance with the requirements of Rule 415 (collectively, the “SEC Restrictions”);
provided, however, that the Company shall not name any Holder as an “underwriter” in such Registration Statement without the prior written consent of such Holder (provided that, in the event an Holder withholds such consent, the
Company shall have no obligation hereunder to include any Registrable Securities of such Holder in any Registration Statement covering the resale thereof until such time as the Commission no longer requires such Holder to be named
as an “underwriter” in such Registration Statement or such Holder otherwise consents in writing to being so named). Any cutback imposed on the Holders pursuant to this Section 2(c) shall be allocated among the Holders by reducing
Registrable Securities represented by shares of Common Stock (applied, in the case that some of such shares of Common Stock may be registered, to the Holders on a pro rata basis based on the total number of such unregistered
shares of Common Stock held by such Holders, but excluding from such pro rata calculation any unregistered shares of Common Stock held by a Holder that the Commission has deemed to be an “underwriter” or otherwise requires such
Holder to sell its shares of Common Stock in a primary offering). For purposes of this Section 2(c), shares of Common Stock issuable upon exercise of the Pre-Funded Warrants shall be treated as shares of Common Stock held by the
Holder thereof. In the event of a cutback hereunder, the Company shall give the Holder at least two (2) Trading Days prior written notice along with the calculations as to such Holder’s allotment. In the event the Company amends
the Initial Registration Statement in accordance with the foregoing, the Company will use its commercially reasonable efforts to file with the Commission, as promptly as allowed by the Commission or SEC Guidance provided to the
Company or to registrants of securities in general, one or more registration statements on Form S-3 or such other form available to register for resale those Registrable Securities that were not registered for resale on the
Initial Registration Statement, as amended.
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(d)
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If Form S-3 is not available for the registration of the resale of Registrable Securities hereunder, the Company shall
(i) register the resale of the Registrable Securities on another appropriate form and (ii) undertake to register the Registrable Securities on Form S-3 promptly as practicable after such form is available, provided that the
Company shall maintain the effectiveness of the Registration Statement then in effect until such time as a Registration Statement on Form S-3 covering the Registrable Securities has been declared effective by the Commission.
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3.
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Registration Procedures.
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(a)
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As far in advance as reasonably practicable, but in any event not less than five (5) Trading Days prior to the filing
of each Registration Statement and not less than one (1) Trading Day prior to the filing of any related Prospectus or any amendment or supplement thereto, the Company shall (i) furnish to each Holder copies of all such documents
proposed to be filed, which documents will be subject to the review of such Holders, and (ii) use commercially reasonable efforts to cause its officers and directors, counsel and independent registered public accountants to
respond to such inquiries as shall be necessary, in the reasonable opinion of respective counsel to each Holder, to conduct a reasonable investigation within the meaning of the Securities Act, provided that the Company shall
redact any sections of such documents that may contain material non-public information unless the Holder consents in writing to receive such information and agrees to hold it in confidence. The Company shall not file a
Registration Statement or any such Prospectus or any amendments or supplements thereto (A) containing information regarding any Holder to which such Holder reasonably objects in good faith, provided that the Company is notified of
such objection in writing no later than three (3) Trading Days after the Holders have been so furnished copies of a Registration Statement or one (1) Trading Day after the Holders have been so furnished copies of any related
Prospectus or amendments or supplements thereto, or (B) to which the Required Holders shall reasonably (x) object or (y) believe contains an untrue statement of a material fact or omits to state a material fact required to be
stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, unless such information is required (in the good faith opinion of the Company) to comply with
any applicable law or regulation or SEC Guidance. Each Holder agrees to furnish to the Company a completed questionnaire in the form attached to this Agreement as Annex C or such other form as reasonably acceptable to the
Company (a “Selling Stockholder Questionnaire”) on a date that is not less than two (2) Trading Days prior to the Filing Date or by the end of the third (3rd) Trading Day
following the date on which such Holder receives draft materials in accordance with this Section. The Company shall not be required to include any Registrable Securities in the Registration Statement for any Holder that has not
provided such Selling Stockholder Questionnaire.
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(b)
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Each Holder shall cooperate with the Company as reasonably requested in connection with the preparation of each
Registration Statement, including responding promptly to any comments from the Commission relating to information provided by or concerning such Holder.
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(c)
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(i) Prepare and file with the Commission such amendments, including post-effective amendments, to a Registration
Statement and the Prospectus used in connection therewith as may be necessary to keep a Registration Statement continuously effective as to the applicable Registrable Securities for the Effectiveness Period and prepare and file
with the Commission such additional Registration Statements in order to register for resale under the Securities Act all of the Registrable Securities, (ii) cause the related Prospectus to be amended or supplemented by any
required Prospectus supplement (subject to the terms of this Agreement), and, as so supplemented or amended, to be filed pursuant to Rule 424, (iii) respond as promptly as reasonably possible to any comments received from the
Commission with respect to a Registration Statement or any amendment thereto and, upon request of Holders, provide as promptly as reasonably possible to the Holders true and complete copies of all correspondence from and to the
Commission relating to a Registration Statement (provided that, the Company shall excise any information contained therein that would constitute material non-public information regarding the Company or any of its subsidiaries),
and (iv) comply in all material respects with the applicable provisions of the Securities Act and the Exchange Act with respect to the disposition of all Registrable Securities covered by a Registration Statement during the
applicable period in accordance (subject to the terms of this Agreement) with the intended methods of disposition by the Holders thereof set forth in such Registration Statement as so amended or in such Prospectus as so
supplemented.
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(d)
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If during the Effectiveness Period, the number of Registrable Securities at any time exceeds 100% of the number of
shares of Common Stock then registered in a Registration Statement, then the Company shall, subject to Sections 2(b) and 2(c), if applicable, file as soon as reasonably practicable, an additional Registration Statement covering
the resale by the Holders of not less than the number of such Registrable Securities.
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(e)
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Notify the Holders of Registrable Securities to be sold (which notice shall, pursuant to clauses (iii) through
(v) hereof, be accompanied by an instruction to suspend the use of the Prospectus until the requisite changes have been made) as promptly as reasonably possible (and, in the case of (i)(A) below, not less than one (1) Trading Day
prior to such filing) and (if requested by any such Person) confirm such notice in writing no later than one (1) Trading Day following the day (i)(A) when a Prospectus or any Prospectus supplement or post-effective amendment to a
Registration Statement is proposed to be filed, (B) when the Commission notifies the Company whether there will be a “review” of such Registration Statement and whenever the Commission comments in writing on such Registration
Statement, and (C) with respect to a Registration Statement or any post-effective amendment, when the same has become effective, (ii) of any request by the Commission or any other federal or state governmental authority for
amendments or supplements to a Registration Statement or Prospectus or for additional information, (iii) of the issuance by the Commission or any other federal or state governmental authority of any stop order suspending the
effectiveness of a Registration Statement covering any or all of the Registrable Securities or the initiation of any Proceeding for that purpose, (iv) of the receipt by the Company of any notification with respect to the
suspension of the qualification or exemption from qualification of any of the Registrable Securities for sale in any jurisdiction, or the initiation or threatening of any action, suit, proceeding, inquiry or investigation before
or brought by any Governmental Entity (a “Proceeding”) for such purpose, and (v) of the occurrence of any event or passage of time that makes the financial statements
included in a Registration Statement ineligible for inclusion therein or any statement made in a Registration Statement or Prospectus or any document incorporated or deemed to be incorporated therein by reference untrue in any
material respect or that requires any revisions to a Registration Statement, Prospectus or other documents so that, in the case of a Registration Statement or the Prospectus, as the case may be, it will not contain any untrue
statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading; provided,
however, that in no event shall any such notice contain any information that would constitute material, non-public information regarding the Company or any of its subsidiaries.
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(f)
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Use its commercially reasonable efforts to avoid the issuance of, or, if issued, obtain the withdrawal of (i) any order
stopping or suspending the effectiveness of a Registration Statement, or (ii) any suspension of the qualification (or exemption from qualification) of any of the Registrable Securities for sale in any jurisdiction, at the earliest
practicable moment.
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(g)
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If requested by a Holder, furnish to each Holder, without charge, an electronic copy of the conformed copy of each such
Registration Statement and each amendment thereto, including financial statements and schedules, all documents incorporated or deemed to be incorporated therein by reference to the extent requested by such Person, and all exhibits
to the extent requested by such Person (including those previously furnished or incorporated by reference) promptly after the filing of such documents with the Commission, provided that any such item that is available on the EDGAR
system (or successor thereto) need not be furnished.
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(h)
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Subject to the terms of this Agreement, the Company hereby consents to the use of such Prospectus and each amendment or
supplement thereto by each of the selling Holders in connection with the offering and sale of the Registrable Securities covered by such Prospectus and any amendment or supplement thereto, except after the giving of any notice
pursuant to Section 3(d).
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(i)
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Prior to any resale of Registrable Securities by a Holder, use its commercially reasonable efforts to register or
qualify or cooperate with the selling Holders in connection with the registration or qualification (or exemption from the registration or qualification) of such Registrable Securities for the resale by the Holder under the
securities or Blue Sky laws of such jurisdictions within the United States as any Holder reasonably requests in writing, to keep each registration or qualification (or exemption therefrom) effective during the Effectiveness Period
and to do any and all other acts or things reasonably necessary to enable the disposition in such jurisdictions of the Registrable Securities covered by each Registration Statement, provided that the Company shall not be required
to qualify generally to do business in any jurisdiction where it is not then so qualified, subject the Company to any material tax in any such jurisdiction where it is not then so subject or file a general consent to service of
process in any such jurisdiction.
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(j)
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In connection with any sale pursuant to an effective Registration Statement, if requested by a Holder, promptly (and in
any event within five (5) Trading Days of such request) deliver to Holder certificates or book
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(k)
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Upon the occurrence of any event contemplated by Section 3(d)(iii) through (v), as promptly as reasonably possible
under the circumstances taking into account the Company’s good faith determination of any adverse consequences to the Company and its stockholders of the premature disclosure of such event, prepare a supplement or amendment,
including a post-effective amendment, to a Registration Statement or a supplement to the related Prospectus or any document incorporated or deemed to be incorporated therein by reference, and file any other required document so
that, as thereafter delivered, neither a Registration Statement nor such Prospectus will contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they were made, not misleading. If the Company notifies the Holders in accordance with clauses (iii) through (v) of Section 3(d) above to suspend the use of any
Prospectus until the requisite changes to such Prospectus have been made, then the Holders shall suspend use of such Prospectus; provided that the Company shall only be entitled to exercise its right under this Section 3(k) to
suspend the availability of a Registration Statement and Prospectus up to two (2) occasions in any 12-month period for a period not to exceed forty five (45) consecutive days or a total of ninety (90) calendar days, in each case
in any such 12-month period. The Company will use its reasonable best efforts to ensure that the use of the Prospectus may be resumed as promptly as is reasonably practicable.
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(l)
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Otherwise use commercially reasonable efforts to comply with all applicable rules and regulations of the Commission
under the Securities Act and the Exchange Act, including, without limitation, Rule 172 under the Securities Act, file any final Prospectus, including any supplement or amendment thereof, with the Commission pursuant to Rule 424
under the Securities Act, promptly inform the Holders in writing if, at any time during the Effectiveness Period, the Company does not satisfy the conditions specified in Rule 172 and, as a result thereof, the Holders are required
to deliver a Prospectus in connection with any disposition of Registrable Securities and take such other actions as may be reasonably necessary to facilitate the registration of the Registrable Securities hereunder.
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(m)
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The Company shall use its commercially reasonable efforts to maintain eligibility for use of Form S-3 (or any successor
form thereto) for the registration of the resale of the Registrable Securities once eligible to use such form.
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(n)
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The Company may require each selling Holder to furnish to the Company a certified statement as to the number of shares
of Common Stock beneficially owned by such Holder and, if required by the Commission, the natural persons thereof that have voting and dispositive control over the shares.
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(o)
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The Company shall use its reasonable best efforts to cause all Registrable Securities to be listed on each securities
exchange or market, if any, on which the shares of Passage common stock are listed.
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(p)
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The Company shall, at its sole expense, upon appropriate notice from a Holder stating that Registrable Securities have
been sold or transferred pursuant to an effective Registration Statement, promptly (and in any event within five (5) Trading Days of such notice) prepare and deliver certificates or evidence of book-entry positions representing
the Registrable Securities to be delivered to a transferee pursuant to such Registration Statement, which certificates or book-entry positions shall be free of any restrictive legends and in such denominations and registered in
such names as the undersigned may request.
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(q)
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The Company shall cooperate with the holders of the Registrable Securities to facilitate the timely preparation and
delivery of certificates or uncertificated shares representing the Registrable Securities to be sold pursuant to such Registration Statement or Rule 144 free of any restrictive legends and representing such number of shares of
Common Stock and registered in such names as the holders of the Registrable Securities may reasonably request to the extent permitted by such Registration Statement or Rule 144 to effect sales of Registrable Securities, provided
that the Company has timely received from the holder customary representations and other documentation, including broker representation letters reasonably acceptable to the Company and the transfer agent; for the avoidance of
doubt, the Company may satisfy its obligations hereunder without issuing physical stock certificates through the use of The Depository Trust Company’s Direct Registration System.
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4.
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Registration Expenses. All fees and expenses incident to the performance of or compliance with this Agreement by
the Company shall be borne by the Company whether or not any Registrable Securities are sold pursuant to a Registration Statement. The fees and expenses referred to in the foregoing sentence shall include, without limitation, (i)
all registration and filing fees (including, without limitation, fees and expenses of the Company’s counsel and independent registered public accountants) (A) with respect to filings made with the Commission, (B) with respect to
filings required to be made with any National Exchange on which the Common Stock is then listed for trading, and (C) in compliance with applicable state securities or Blue Sky laws reasonably agreed to by the Company in writing
(including, without limitation, fees and disbursements of counsel for the Company in connection with Blue Sky qualifications or exemptions of the Registrable Securities), (ii) printing expenses (including, without limitation,
expenses of printing certificates for Registrable Securities), (iii) messenger, telephone and delivery expenses, (iv) fees and disbursements of counsel for the Company, (v) Securities Act liability insurance, if the Company so
desires such insurance, (vi) fees and expenses of all other Persons retained by the Company in connection with the consummation of the transactions contemplated by this Agreement, including the Company’s transfer agent, and (vii)
solely in connection with the review and filing of the initial Registration Statement, the reasonable fees and expenses, not to exceed $50,000, of one counsel for the selling Holders selected by the Holders of a majority of the
Registrable Securities to be registered. In addition, the Company shall be responsible for all of its internal expenses incurred in connection with the consummation of the transactions contemplated by this Agreement (including,
without limitation, all salaries and expenses of its officers and employees performing legal or accounting duties), the expense of any annual audit and the fees and expenses incurred in connection with the listing of the
Registrable Securities on any securities exchange as required hereunder. In no event shall the Company be responsible for any underwriting, broker or similar fees or commissions of any Holder or, except to the extent provided for
in the Purchase Agreement or this Agreement, any legal fees or other costs of the Holders.
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5.
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Indemnification.
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(a)
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Indemnification by the Company. The Company shall, notwithstanding any termination of this Agreement, indemnify
and hold harmless each Holder and its affiliates, the officers, directors, members, partners, agents, brokers (including brokers who offer and sell Registrable Securities as principal as a result of a pledge or any failure to
perform under a margin call of Common Stock), investment advisors and employees (and any other Persons with a functionally equivalent role of a Person holding such titles, notwithstanding a lack of such title or any other title)
of each of them, each Person who controls any such Holder (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) and the officers, directors, members, stockholders, partners, agents and
employees (and any other Persons with a functionally equivalent role of a Person holding such titles, notwithstanding a lack of such title or any other title) of each such controlling Person, to the fullest extent permitted by
applicable law, from and against any and all losses, claims, damages, liabilities, costs (including, without limitation, reasonable and documented attorneys’ fees) and expenses (collectively, “Losses”), as incurred, arising out of or based solely upon (1) any untrue or alleged untrue statement of a material fact contained in a Registration Statement, any Prospectus or any form of prospectus
or in any amendment or supplement thereto or in any preliminary prospectus, or arising out of or relating to any omission or alleged omission of a material fact required to be stated therein or necessary to make the statements
therein (in the case of any Prospectus or supplement thereto, in light of the circumstances under which they were made) not misleading or (2) any violation or alleged violation by the Company of the Securities Act, the Exchange
Act or any state securities law, or any rule or regulation thereunder, in connection with the performance of its obligations under this Agreement (the matters in the foregoing clauses (1) and (2) being, collectively, “Violations”), except to the extent, but only to the extent, that (i) such untrue statements or omissions are based upon information regarding such Holder furnished in writing
to the Company by such Holder or indemnified person expressly for use therein and that has not been corrected in a subsequent writing prior to or concurrently with the sale of Registrable Securities to the Person asserting the
claim, (ii) in the case of an occurrence of an event of the type specified in Section 3(d)(iii)-(v), such Losses result from the use by such Holder or indemnified person of an outdated, defective or otherwise unavailable
prospectus if the untrue statement or omission of material fact contained in such prospectus was corrected in a revised prospectus, as then amended or supplemented, and the Holder or indemnified person was promptly advised in
writing not to use the outdated, defective or incorrect prospectus prior to the use giving rise to a Violation; (iii) shall not be available to the extent such claim is based on a failure of the relevant Holder or indemnified
person to deliver, or cause to be delivered, if required, the prospectus to the Persons asserting an
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(b)
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Indemnification by Holders. Each Holder shall, severally and not jointly, indemnify and hold harmless the
Company, its directors, officers, agents and employees, each Person who controls the Company (within the meaning of Section 15 of the Securities Act and Section 20 of the Exchange Act), and the directors, officers, agents or
employees of such controlling Persons, to the fullest extent permitted by applicable law, from and against all Losses, as incurred, to the extent arising out of or based solely upon any untrue or alleged untrue statement of a
material fact contained in any Registration Statement, any Prospectus, or in any amendment or supplement thereto or in any preliminary prospectus, or arising out of or relating to any omission or alleged omission of a material
fact required to be stated therein or necessary to make the statements therein (in the case of any Prospectus or supplement thereto, in the light of the circumstances under which they were made) not misleading to the extent, but
only to the extent, that (i) such untrue statement or omission is contained in any information so furnished in writing by such Holder to the Company expressly for inclusion in such Registration Statement or such Prospectus,
including information provided in the Selling Stockholder Questionnaire and that has not been corrected in a subsequent writing prior to or concurrently with the sale of Registrable Securities to the Person asserting the claim, or
(ii) such Losses arise from such Holder’s violation of its obligations under this Agreement. In no event shall the liability of a selling Holder be greater in amount than the dollar amount of the proceeds (net of all expenses paid
by such Holder in connection with any claim relating to this Section 5 and the amount of any damages such Holder has otherwise been required to pay by reason of such untrue statement or omission) received by such Holder upon the
sale of the Registrable Securities included in the Registration Statement giving rise to such indemnification obligation.
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(c)
|
Conduct of Indemnification Proceedings. If any Proceeding shall be brought or asserted against any Person
entitled to indemnity hereunder (an “Indemnified Party”), such Indemnified Party shall promptly notify the Person from whom indemnity is sought (the “Indemnifying Party”) in writing, and the Indemnifying Party shall have the right to assume the defense thereof, including the employment of counsel reasonably satisfactory to
the Indemnified Party and the payment of all reasonable fees and expenses incurred in connection with defense thereof, provided that the failure of any Indemnified Party to give such notice shall not relieve the Indemnifying Party
of its obligations or liabilities pursuant to this Agreement, except (and only) to the extent that it shall be finally determined by a court of competent jurisdiction (which determination is not subject to appeal or further
review) that such failure shall have materially and adversely prejudiced the Indemnifying Party.
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(d)
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Contribution. If the indemnification under Section 5(a) or 5(b) is unavailable to an Indemnified Party or
insufficient to hold an Indemnified Party harmless for any Losses, then each Indemnifying Party shall contribute to the amount paid or payable by such Indemnified Party, in such proportion as is appropriate to reflect the relative
fault of the Indemnifying Party and Indemnified Party in connection with the actions, statements or omissions that resulted in such Losses as well as any other relevant equitable considerations. The relative fault of such
Indemnifying Party and Indemnified Party shall be determined by reference to, among other things, whether any action in question, including any untrue or alleged untrue statement of a material fact or omission or alleged omission
of a material fact, has been taken or made by, or relates to information supplied by, such Indemnifying Party or Indemnified Party, and the parties’ relative intent, knowledge, access to information and opportunity to correct or
prevent such action, statement or omission; provided, however, that no Person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) will be entitled to contribution from any Person who
was not guilty of such fraudulent misrepresentation. The amount paid or payable by a party as a result of any Losses shall be deemed to include, subject to the limitations set forth in this Agreement, any reasonable attorneys’ or
other fees or expenses incurred by such party in connection with any Proceeding to the extent such party would have been indemnified for such fees or expenses if the indemnification provided for in this Section 5 was available to
such party in accordance with its terms.
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6.
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Miscellaneous.
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(a)
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Remedies. In the event of a breach by the Company or by a Holder of any of their respective obligations under
this Agreement, each Holder or the Company, as the case may be, in addition to being entitled to exercise all rights granted by law and under this Agreement, including recovery of damages, shall be entitled to specific performance
of its rights under this Agreement. Each of the Company and each Holder agrees that monetary damages would not provide adequate compensation for any losses incurred by reason of a breach by it of any of the provisions of this
Agreement and that the obligations of the parties hereunder shall be specifically enforceable.
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(b)
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No Piggyback on Registrations; Prohibition on Filing Other Registration Statements. The Company shall not file
any other registration statements until all Registrable Securities are registered pursuant to a Registration Statement that is declared effective by the Commission, provided that this Section 6(b) shall not prohibit the Company
from filing amendments to registration statements filed prior to the date of this Agreement so long as no new securities are registered on any such existing registration statements, nor preparing and filing with the Commission a
registration statement on Form S-8 relating to its equity incentive plans, nor filing a shelf registration statement on Form S-3 or Form S-1 for securities held by stockholders who are parties to separate
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(c)
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Discontinued Disposition. By its acquisition of Registrable Securities, each Holder agrees that, upon receipt of
a notice from the Company of the occurrence of any event of the kind described in Section 3(d)(iii) through (v), such Holder will forthwith discontinue disposition of such Registrable Securities under a Registration Statement
until it is advised in writing (the “Advice”) by the Company that the use of the applicable Prospectus (as it may have been supplemented or amended) may be resumed. The
Company will use its commercially reasonable efforts to ensure that the use of the Prospectus may be resumed as promptly as is practicable.
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(d)
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Amendments and Waivers. The provisions of this Agreement, including the provisions of this sentence, may not be
amended, modified or supplemented, and waivers or consents to departures from the provisions hereof may not be given, unless the same shall be in writing and signed by the Company and the Required Holders, provided that, (i) if
any amendment, modification or waiver disproportionately and adversely impacts a Holder (or group of Holders), the consent of such disproportionately impacted Holder (or group of Holders) shall be required, (ii) any amendment,
modification or waiver of the definition of Registrable Securities, Filing Date, Effectiveness Date, Effectiveness Period, Section 5 or this Section 6(d) shall require the consent of each Holder affected by such amendment,
modification or waiver, (iii) the consent of all Holders is required for any amendment or modification that creates or imposes new or additional obligations on the Holders, including, without limitation, any lockup agreement, and
(iv) any amendment, modification or waiver that would increase the Company’s obligations or liabilities hereunder or shorten any time period for Company performance shall require the prior written consent of the Company. If a
Registration Statement does not register all of the Registrable Securities pursuant to a waiver or amendment done in compliance with the previous sentence, then the number of Registrable Securities to be registered for each Holder
shall be reduced pro rata among all Holders and each Holder shall have the right to designate which of its Registrable Securities shall be omitted from such Registration Statement. Notwithstanding the foregoing, a waiver or
consent to depart from the provisions hereof with respect to a matter that relates exclusively to the rights of a Holder or some Holders and that does not directly or indirectly affect the rights of other Holders may be given only
by such Holder or Holders of all of the Registrable Securities to which such waiver or consent relates; provided, however, that the provisions of this sentence may not be amended, modified, or supplemented except
in accordance with the provisions of the first sentence of this Section 6(d). No consideration shall be offered or paid to any Person to amend or consent to a waiver or modification of any provision of this Agreement unless the
same consideration also is offered to all of the parties to this Agreement. As used herein, “Required Holders” means Holders of 50.1% or more of the then outstanding
Registrable Securities (for purposes of clarification, this includes any securities issuable upon conversion or exercise of any Registrable Security).
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(e)
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Notices. Any and all notices or other communications or deliveries required or permitted to be provided
hereunder shall be delivered as set forth in the Purchase Agreement.
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(f)
|
Successors and Assigns. This Agreement shall inure to the benefit of and be binding upon the successors and
permitted assigns of each of the parties and shall inure to the benefit of each Holder. The Company may not assign (except by merger or other transaction in which the Registrable Securities are converted into the equity securities
of another Person, in which case such Person shall, by virtue of such transaction, be deemed to have assumed the obligations of the Company hereunder) its rights or obligations hereunder without the prior written consent of the
Required Holders. Each Holder may assign their respective rights hereunder in the manner and to the Persons as permitted under Section 9.04 of the Purchase Agreement, provided each such assignee agrees to be bound by the terms of
this Agreement.
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(g)
|
No Inconsistent Agreements. Neither the Company nor any of its subsidiaries has entered, as of the date hereof,
nor shall the Company or any of its subsidiaries, on or after the date of this Agreement, enter into any agreement with respect to its securities, that would have the effect of impairing the rights granted to the Holders in this
Agreement or otherwise conflicts with the provisions hereof. Neither the Company nor any of its subsidiaries has previously entered into any agreement granting any registration rights with respect to any
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(h)
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Execution and Counterparts. This Agreement may be executed in two or more counterparts, all of which when taken
together shall be considered one and the same agreement and shall become effective when counterparts have been signed by each party and delivered to the other party, it being understood that both parties need not sign the same
counterpart. In the event that any signature is delivered by facsimile transmission or by e-mail delivery of a “.pdf” format data file or any electronic signature complying with the U.S. federal ESIGN Act of 2000 (e.g.,
www.docusign.com), such signature shall create a valid and binding obligation of the party executing (or on whose behalf such signature is executed) with the same force and effect as if such facsimile or “.pdf” signature page was
an original thereof.
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(i)
|
Governing Law. All questions concerning the construction, validity, enforcement and interpretation of this
Agreement shall be determined in accordance with the provisions of the Purchase Agreement and Section 9.07 is hereby incorporated herein mutatis mutandis.
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(j)
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Cumulative Remedies. The remedies provided herein are cumulative and not exclusive of any other remedies
provided by law.
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(k)
|
Severability. If any term, provision, covenant or restriction of this Agreement is held by a court of competent
jurisdiction to be invalid, illegal, void or unenforceable, the remainder of the terms, provisions, covenants and restrictions set forth herein shall remain in full force and effect and shall in no way be affected, impaired or
invalidated, and the parties hereto shall use their commercially reasonable efforts to find and employ an alternative means to achieve the same or substantially the same result as that contemplated by such term, provision,
covenant or restriction. It is hereby stipulated and declared to be the intention of the parties that they would have executed the remaining terms, provisions, covenants and restrictions without including any of such that may be
hereafter declared invalid, illegal, void or unenforceable.
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(l)
|
Headings. The headings in this Agreement are for convenience only, do not constitute a part of the Agreement and
shall not be deemed to limit or affect any of the provisions hereof.
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(m)
|
Independent Nature of Holders’ Obligations and Rights. The obligations of each Holder hereunder are several and
not joint with the obligations of any other Holder hereunder, and no Holder shall be responsible in any way for the performance of the obligations of any other Holder hereunder. Nothing contained herein or in any other agreement
or document delivered at any closing, and no action taken by any Holder pursuant hereto or thereto, shall be deemed to constitute the Holders as a partnership, an association, a joint venture or any other kind of group or entity,
or create a presumption that the Holders are in any way acting in concert or as a group or entity with respect to such obligations or the transactions contemplated by this Agreement or any other matters, and the Company
acknowledges that the Holders are not acting in concert or as a group, and the Company shall not assert any such claim, with respect to such obligations or transactions. Each Holder shall be entitled to protect and enforce its
rights, including without limitation the rights arising out of this Agreement, and it shall not be necessary for any other Holder to be joined as an additional party in any proceeding for such purpose. The use of a single
agreement with respect to the obligations of the Company contained was solely in the control of the Company, not the action or decision of any Holder, and was done solely for the convenience of the Company and not because it was
required or requested to do so by any Holder. It is expressly understood and agreed that each provision contained in this Agreement is between the Company and a Holder, solely, and not between the Company and the Holders
collectively and not between and among Holders.
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(n)
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Non-Recourse. Notwithstanding anything that may be expressed or implied in this Agreement, the Company
covenants, agrees and acknowledges that no recourse under this Agreement or any documents or instruments delivered in connection with this Agreement shall be had against any current or future director, officer, employee,
stockholder, general or limited partner or member of any Holder or of any affiliates or assignees thereof, whether by the enforcement of any assessment or by any legal or equitable proceeding, or by virtue of any statute,
regulation or other applicable law, it being expressly agreed and acknowledged that no personal liability whatsoever shall attach to, be imposed on or otherwise be incurred by any current or future director,
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REMIX THERAPEUTICS, INC.
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By:
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Name:
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Title:
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PASSAGE BIO, INC.
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By:
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Name:
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Title:
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INVESTOR:
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[•]
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By:
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Name:
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Title:
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Page
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ARTICLE 1 DEFINITIONS
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F-3
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Section 1.1
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Definitions
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F-3
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ARTICLE 2 CONTINGENT VALUE RIGHTS
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F-6
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Section 2.1
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Holders of CVRs; Appointment of Rights Agent
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F-6
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Section 2.2
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Non-transferable
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F-6
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Section 2.3
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No Certificate; Registration; Registration of Transfer; Change of
Address
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F-6
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Section 2.4
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Payment Procedures
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F-7
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Section 2.5
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No Voting, Dividends or Interest; No Equity or Ownership Interest
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F-8
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Section 2.6
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Ability to Abandon CVR
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F-8
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ARTICLE 3 THE RIGHTS AGENT
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F-8
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Section 3.1
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Certain Duties and Responsibilities
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F-8
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Section 3.2
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Certain Rights of Rights Agent
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F-9
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Section 3.3
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Resignation and Removal; Appointment of Successor
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F-11
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Section 3.4
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Acceptance of Appointment by Successor
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F-11
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ARTICLE 4 COVENANTS
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F-12
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Section 4.1
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List of Holders
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F-12
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Section 4.2
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Efforts
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F-12
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Section 4.3
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Prohibited Actions
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F-12
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Section 4.4
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Audit Rights.
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F-13
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ARTICLE 5 AMENDMENTS
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F-14
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Section 5.1
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Amendments Without Consent of Holders or Rights Agent
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F-14
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Section 5.2
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Amendments with Consent of Holders
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F-14
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Section 5.3
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Effect of Amendments
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F-14
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ARTICLE 6 CONSOLIDATION, MERGER, SALE OR CONVEYANCE
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F-15
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Section 6.1
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Successor Substituted
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F-15
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ARTICLE 7 MISCELLANEOUS
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F-15
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Section 7.1
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Notices to Rights Agent and to Passage
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F-15
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Section 7.2
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Notice to Holders
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F-15
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Section 7.3
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Entire Agreement
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F-16
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Section 7.4
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Merger or Consolidation or Change of Name of Rights Agent
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F-16
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Section 7.5
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Successors and Assigns
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F-16
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Section 7.6
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Benefits of Agreement; Action by Acting Holders
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F-16
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Section 7.7
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Governing Law
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F-16
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Section 7.8
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Jurisdiction
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F-16
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Section 7.9
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WAIVER OF JURY TRIAL
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F-17
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Section 7.10
|
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Severability Clause
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F-17
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Section 7.11
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Counterparts; Effectiveness
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F-17
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Section 7.12
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Termination
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F-17
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Section 7.13
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Force Majeure
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F-17
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Section 7.14
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Construction
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F-18
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Section 1.1
|
Definitions. Capitalized terms used but not otherwise defined herein have the
meanings ascribed thereto in the Merger Agreement. The following terms have the meanings ascribed to them as follows:
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(i)
|
any applicable and non-recoverable value added, sales or similar Taxes imposed on the Legacy Asset Payments and payable
in cash by Passage or any of its Subsidiaries and any income or other similar Taxes required to be paid by Passage or any of its Subsidiaries, in each case, with respect to the taxable year in which such Legacy Asset Payments were
received which Taxes would not have been required to be paid by Passage or its applicable Subsidiary but for its receipt of Legacy Asset Payments and any applicable Tax imposed on or otherwise payable in connection with making any
CVR Payment or the issuance of any CVR (including, without limitation, (i) the employer portion of any employment, payroll, or other similar Taxes in respect of CVR Payments (including in respect of Passage ITM Options granted to
employees or Passage Restricted Stock Unit Awards) and (ii) any withholding Taxes (including interest and penalties) relating to the issuance of a CVR or any CVR Payment); provided
that, for purposes of calculating any income Taxes of Passage or any of its Subsidiaries for this purpose, (a) such income Taxes shall be computed after taking into account any net operating loss carryforwards or other Tax
attributes (including Tax credits) of Passage or any of its Subsidiaries that are available to offset income or gain, after taking into account any limits of the usability of such attributes under applicable Law, including under
Section 382 of the Code, as reasonably determined by a nationally
|
|
(ii)
|
any reasonable, documented out-of-pocket costs and expenses incurred or accrued by Passage or any of its Subsidiaries
in respect of its performance of this Agreement following the Closing Date or in respect of its negotiation, execution, delivery or performance of the Gemma Sublicenses (to the extent related to the Legacy Asset Payments, and
including the Catalent Storage Costs) or any other agreement to which Passage or any of its Subsidiaries is a party that is in effect as of the date of this Agreement and related to the Legacy Asset Payments, including (i) any
costs related to the prosecution, maintenance or enforcement by Passage or any of its Subsidiaries of intellectual property rights to the extent required by the terms of the Gemma Sublicenses (but excluding any costs related to a
breach of this Agreement by Passage, including costs incurred in litigation in respect of the same), (ii) any reasonable, documented out of pocket costs incurred in order to comply with the terms of the Gemma Sublicenses or any
other agreement to which Passage or any of its Subsidiaries is a party that is in effect as of the date of this Agreement and related to the Legacy Asset Payments that remain with Passage following the receipt of any Legacy Asset
Payment, to the extent such costs relate to any Legacy Asset Payment (but excluding the GM1 2027 License Payment), (iii) any Losses incurred and paid or payable by Passage or any of its Subsidiaries arising out of any claims,
demands, actions or other proceedings, in each case, brought by a third party, relating to or in connection with the Gemma Sublicenses or the Legacy Asset Payments or (iv) any documented out-of-pocket fees of the Rights Agent in
connection with this Agreement; and
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|
(iii)
|
any reasonable documented out-of-pocket costs incurred or accrued by Passage or any of its Subsidiaries in connection
with the collection or receipt of any Legacy Asset Payment, including any brokerage fee, finder’s fee, opinion fee, success fee, transaction fee, service fee, regulatory and other filing fees, or other fee, commission or expense
owed to any broker, finder, investment bank, auditor, accountant, counsel, advisor or other third party in relation thereto, in each case, pursuant to any Contract to which Passage or any of its Subsidiaries is a party that is in
effect as of the date of this Agreement.
|
|
Section 2.1
|
Holders of CVRs; Appointment of Rights Agent.
|
|
(a)
|
The CVRs shall be issued to the holders of shares of Passage Common Stock as of the Record Date. One CVR will be issued
with respect to each share of Passage Common Stock that is outstanding as of the close of business on the Record Date.
|
|
(b)
|
Passage hereby appoints the Rights Agent to act as rights agent for Passage in accordance with the express terms and
conditions set forth in this Agreement, and the Rights Agent hereby accepts such appointment.
|
|
Section 2.2
|
Non-transferable. A Holder may not at any time Transfer CVRs, other than
pursuant to a Permitted Transfer. Any attempted Transfer that is not a Permitted Transfer, in whole or in part, will be void ab initio and of no effect. The CVRs will not be listed on any
quotation system or traded on any securities exchange.
|
|
Section 2.3
|
No Certificate; Registration; Registration of Transfer; Change of Address.
|
|
(a)
|
Holders’ rights and obligations in respect of CVRs derive solely from this Agreement; CVRs will not be evidenced by a
certificate or other instrument.
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(b)
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The Rights Agent will create and maintain an up-to-date register (the “CVR Register”) for the purposes of
(i) identifying the Holders of CVRs, (ii) determining Holders’ entitlement to CVRs and (iii) registering the CVRs and Permitted Transfers thereof. The CVR Register will initially show one position for The Depository Trust Company
(or its nominee) representing all of the CVRs provided to the holders of shares of Passage Common Stock held as of the close of business on the Record Date. The CVR Register will be created, and CVRs will be distributed, pursuant
to written instructions from Passage to the Rights Agent. Except as expressly provided herein with respect to the rights of the Rights Agent, neither Passage nor its Subsidiaries will have any responsibility or liability
whatsoever to any person other than the Holders.
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(c)
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Subject to the restrictions on transferability set forth in Section 2.2, every request made to Transfer CVRs
must be in writing and accompanied by a written instrument of Transfer reasonably acceptable to the Rights Agent, together with the signature guarantee of a guarantor institution which is a participant in a signature guarantee
program approved by the Securities Transfer Association (a “signature guarantee”) and other requested documentation in a form reasonably satisfactory to the Rights Agent, duly executed and properly completed, as applicable, by the
Holder or Holders thereof, or by the duly appointed legal representative, personal representative or survivor of such Holder or Holders, setting forth in reasonable detail the circumstances relating to the Transfer. Upon receipt
of such written notice, the Rights Agent will, subject to its reasonable determination in accordance with its own internal procedures that the Transfer instrument is in proper form and the Transfer is a Permitted Transfer and
otherwise complies on its face with the other terms and conditions of this Agreement, register the Transfer of the applicable CVRs in the CVR Register. All Transfers of CVRs registered in the CVR Register will be the valid
obligations of Passage, evidencing the same right, and entitling the transferee to the same benefits and rights under this Agreement, as those held by the transferor. Each of Passage and the Rights Agent may require payment
(without duplication) by the applicable Holder of a sum sufficient to cover any stamp or other transfer Tax or governmental charge that is imposed in connection with (and would not have been imposed but for) any such registration
of Transfer, unless the transferee shall have established to the reasonable satisfaction of Passage or the Rights Agent, as applicable, that such Tax or governmental charge, if any, has been paid. No Transfer of CVRs shall be
valid until registered in the CVR Register and any Transfer not duly registered in the CVR Register shall be void. Passage shall not be responsible for any costs and expenses related to any transfer or assignment of the CVRs
(including the cost of any transfer tax).
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(d)
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A Holder may make a written request to the Rights Agent to change such Holder’s address of record in the CVR Register.
Such written request must be duly executed by such Holder and conform to such other reasonable requirements as the Rights Agent may establish from time to time. Upon receipt of such written notice, the Rights Agent shall promptly
record the change of address in the CVR Register. The Acting Holders
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Section 2.4
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Payment Procedures.
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(a)
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As promptly as practicable (and, in any event, within twenty (20) days) following the receipt by Passage or any of its
Subsidiaries of any Legacy Asset Payment, Passage shall (i) deliver to the Rights Agent, an Officer’s Certificate certifying the aggregate amount of (A) the CVR Proceeds (if any) actually received by Passage or its Subsidiaries
during such fiscal quarter (or, in the case of the first delivery of such an Officer’s Certificate hereunder, all CVR Proceeds actually received through the end of such fiscal quarter); (B) the Permitted Deductions reflected in
such CVR Proceeds; and (C) the CVR Payment payable to Holders, if any, in respect of such CVR Proceeds, and (ii) deliver to the Rights Agent, or to the Rights Agent’s designee, the CVR Payment (if any) by wire transfer of
immediately available funds to an account designated in writing by the Rights Agent. Upon receipt of the wire transfer referred to in the foregoing sentence, the Rights Agent shall promptly (and in any event, within ten (10)
Business Days) pay, by check mailed, first-class postage prepaid, to the address of each Holder set forth in the CVR Register at such time or by other method of delivery as specified by the applicable Holder in writing to the
Rights Agent, an amount equal to the product determined by multiplying (x) the quotient determined by dividing (I) the applicable CVR Payment by (II) the total number of CVRs registered in the CVR Register at such time, by (y) the
number of CVRs registered to such Holder in the CVR Register at such time. For the avoidance of doubt Passage shall have no further liability in respect of the relevant CVR Payment upon delivery of such CVR Payment in accordance
with this Section 2.4(a) and the satisfaction of each of Passage’s obligations set forth in this Section 2.4(a).
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(b)
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Except to the extent otherwise required pursuant to a change in applicable Law after the date hereof, the parties
hereto agree to treat the issuance of the CVRs as not constituting a current distribution and all CVR Payments for U.S. federal (and applicable state and local) income Tax purposes as distributions of money governed by Section 301
of the U.S. Internal Revenue Code of 1986, as amended (the “Code”), which will constitute a dividend to the extent payable out of Passage and its Subsidiaries’ current and accumulated “earnings and profits” (pursuant to
Section 316 of the Code) in the taxable year in which any such CVR Payment is made. The parties hereto will not take any position to the contrary on any Tax Return or for other Tax purposes except as required by a change in
applicable Law after the date hereof.
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(c)
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Passage and the Rights Agent will be entitled to deduct and withhold, or cause to be deducted and withheld, from any
CVR Payment otherwise payable pursuant to this Agreement, such amounts as Passage or the Rights Agent reasonably determines it is required to deduct and withhold with respect to the making of such payment under any provision of
applicable Law relating to Taxes. To the extent that amounts are so deducted and withheld and paid over to the appropriate Governmental Authority, such deducted and withheld amounts will be treated for all purposes of this
Agreement as having been paid to the Holder in respect of which such deduction and withholding was made. Prior to making any such deductions or withholdings or causing any such deductions or withholdings to be made with respect to
any Holder, the Rights Agent will, to the extent reasonably practicable, provide notice to the Holder of such potential Tax deduction or withholding and a reasonable opportunity for the Holder to provide any necessary Tax forms in
order to avoid or reduce such withholding amounts; provided that the time period for payment of a CVR Payment by the Rights Agent set forth in Section 2.4(a) will be
extended by a period equal to any delay caused by the Holder providing such forms; provided, further, that in no event shall such
period be extended for more than ten (10) Business Days, unless otherwise requested by the Holder for the purpose of delivering such forms and agreed to by the Rights Agent.
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(d)
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Any portion of a CVR Payment that remains undistributed to the Holders on the date that is six (6) months after the
applicable fiscal quarter end (including by means of uncashed checks or invalid addresses on the CVR Register) will be delivered by the Rights Agent to Passage or a Person nominated in writing by Passage (with written notice
thereof from Passage to the Rights Agent), and any Holder will thereafter look only to Passage for payment of such CVR Payment (which shall be without interest).
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(e)
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If any CVR Payment (or portion thereof) remains unclaimed by a Holder on the date that is one year after the date on
which such CVR Proceeds were required to be paid to Holders (or immediately prior to such earlier
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Section 2.5
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No Voting, Dividends or Interest; No Equity or Ownership Interest.
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(a)
|
CVRs will not have any voting or dividend rights, and interest will not accrue on any amounts payable in respect of
CVRs.
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(b)
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CVRs will not represent any equity or ownership interest in Passage or any of its Subsidiaries or in the Surviving
Corporation. The sole right of the Holders to receive property hereunder is the right to receive CVR Payments, if any, in accordance with the terms hereof. It is hereby acknowledged and agreed that a CVR shall not constitute a
security of Passage or any of its Subsidiaries or of the Surviving Corporation. Nothing contained in this Agreement shall be construed as conferring upon any Holder, by virtue of the CVRs, any rights or obligations of any kind or
nature whatsoever as a stockholder or equityholder of Passage or any of its Subsidiaries or of the Surviving Corporation, either at law or in equity. The rights of any Holder and the obligations of Passage and its Affiliates and
their respective officers, directors and controlling Persons are contract rights and obligations limited to those expressly set forth in this Agreement.
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(c)
|
It is hereby acknowledged and agreed that the CVRs and the possibility of any payment hereunder with respect thereto
are highly speculative and subject to numerous factors outside of Passage’s control, and there is no assurance that Holders will receive any payments under this Agreement or in connection with the CVRs. Each Holder acknowledges
that it is highly possible that (i) no Legacy Asset Payments will be collected prior to the expiration of the applicable CVR Period and (ii) there will not be any Legacy Asset Payments that may be the subject of a CVR Payment. It
is further acknowledged and agreed that neither Passage nor its Affiliates owe, by virtue of their obligations under this Agreement, a fiduciary duty or any implied duties to the Holders and the parties hereto intend solely the
express provisions of this Agreement to govern their contractual relationship with respect to the CVRs. It is acknowledged and agreed that this Section 2.5(c) is an essential and material term of this Agreement.
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Section 2.6
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Ability to Abandon CVR. A Holder may at any time, at such Holder’s option or
upon the failure to claim payment under Section 2.4(e), abandon all of such Holder’s remaining rights represented by CVRs by transferring such CVR to Passage or a Person nominated in writing by Passage (with written notice
thereof from Passage to the Rights Agent) without consideration or compensation therefor, and such rights will be cancelled, with the Rights Agent being promptly notified in writing by Passage of such transfer and cancellation. No
such notice to the Rights Agent shall be required in the case of abandonment due to the failure to claim payment under Section 2.4(e). Nothing in this Agreement is intended to prohibit Passage or its Subsidiaries from
offering to acquire or acquiring CVRs, in private transactions or otherwise, for consideration in its sole discretion.
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Section 3.1
|
Certain Duties and Responsibilities.
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(a)
|
The Rights Agent will not have any liability for any actions taken or not taken in connection with this Agreement,
except to the extent such liability arises as a result of the willful misconduct, bad faith, fraud or gross negligence of the Rights Agent (in each case as determined by a final non-appealable judgment of a court of competent
jurisdiction). Notwithstanding anything in this Agreement to the contrary, any liability of
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(b)
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The Rights Agent shall not have any duty or responsibility in the case of the receipt of any written demand from any
Holder with respect to any action or default by any person or entity, including, without limiting the generality of the foregoing, any duty or responsibility to initiate or attempt to initiate any proceedings at law or otherwise
or to make any demand upon Passage, the Company or the Surviving Corporation. All rights of action under this Agreement may be enforced (but shall not be required to be enforced) by the Rights Agent, any claim, action, suit,
audit, investigation or proceeding instituted by the Rights Agent will be brought in its name as the Rights Agent and any recovery in connection therewith will be for the proportionate benefit of all the Holders, as their
respective rights or interests may appear on the CVR Register.
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Section 3.2
|
Certain Rights of Rights Agent.
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(a)
|
The Rights Agent undertakes to perform such duties and only such duties as are specifically set forth in this
Agreement, and no implied covenants or obligations will be read into this Agreement against the Rights Agent.
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(b)
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The Rights Agent may rely and will be protected by Passage in acting or refraining from acting upon any resolution,
certificate, statement, instrument, opinion, report, notice, request, direction, consent, order or other paper or document reasonably believed by it in the absence of bad faith to be genuine and to have been signed or presented by
or on behalf of Passage.
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(c)
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The Rights Agent may engage and consult with counsel of its selection, and the written advice or opinion of such
counsel will, in the absence of bad faith, gross negligence, fraud or willful misconduct (in each case, as determined by a final, non-appealable judgment of a court of competent jurisdiction) on the part of the Rights Agent, be
full and complete authorization and protection in respect of any action taken or not taken by the Rights Agent in reliance thereon.
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(d)
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Any permissive rights of the Rights Agent hereunder will not be construed as a duty.
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(e)
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The Rights Agent will not be required to give any note or surety in respect of the execution of its powers or otherwise
under this Agreement.
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(f)
|
Passage agrees to indemnify the Rights Agent for, and to hold the Rights Agent harmless from and against, any loss,
liability, damage, judgment, fine, penalty, cost or expense (each, a “Loss”) suffered or incurred by the Rights Agent and arising out of or in connection with the Rights Agent’s performance of its obligations under this
Agreement, including the reasonable and documented costs and expenses of defending the Rights Agent against any claims, charges, demands, actions or suits arising out of or in connection with the execution, acceptance,
administration, exercise and performance of its duties under this Agreement, including the costs and expenses of defending against any claim of liability arising therefrom, directly or indirectly, or enforcing its rights
hereunder, except to the extent such Loss has been determined by a final non-appealable decision of a court of competent jurisdiction to have resulted from the Rights Agent’s gross negligence, bad faith, fraud or willful
misconduct (in each case, as determined by a final, non-appealable judgment of a court of competent jurisdiction); provided that this Section 3.2(f) shall not apply to (i)
income, receipt, franchise or similar Taxes, (ii) any Taxes imposed due to the Rights Agent’s connection with the jurisdiction imposing such Taxes (other than any connection caused solely by this Agreement or the Rights Agent
performing, enforcing or receiving payments under this Agreement), or (iii) any Taxes imposed due to the failure of the Rights Agent to provide any form, document or certificate that would have reduced or eliminated the amount of
withholding taxes (“Excluded Taxes”).
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(g)
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In addition to the indemnification provided under Section 3.2(f), Passage agrees (i) to pay the fees of the
Rights Agent in connection with the Rights Agent’s performance of its obligations hereunder, as agreed upon in writing by the Rights Agent and Passage on or prior to the date of this Agreement, and (ii) to reimburse the
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(h)
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No provision of this Agreement shall require the Rights Agent to expend or risk its own funds or otherwise incur any
financial liability in the performance of any of its duties hereunder or in the exercise of any of its rights or powers if it believes that repayment of such funds or adequate indemnification against such risk or liability is not
reasonably assured to it.
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(i)
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The Rights Agent will not be deemed to have knowledge of any event of which it was supposed to receive notice hereunder
but has not received written notice of such event, and the Rights Agent will not incur any liability for failing to take action in connection therewith, in each case, unless and until it has received such notice in writing.
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(j)
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The Rights Agent may execute and exercise any of the rights or powers hereby vested in it or perform any duty hereunder
either itself or by or through its attorney or agents and the Rights Agent shall not be answerable or accountable for any act, default, neglect or misconduct of any such attorney or agents or for any loss to Passage resulting from
any such act, default, neglect or misconduct, absent gross negligence, bad faith or willful misconduct (each as determined by a final non-appealable judgment of a court of competent jurisdiction) in the selection and continued
employment thereof.
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(k)
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Passage shall perform, acknowledge and deliver or cause to be performed, acknowledged and delivered all such further
and other acts, documents, instruments and assurances as may be reasonably required by the Rights Agent for the carrying out or performing by the Rights Agent of the provisions of this Agreement.
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(l)
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The Rights Agent shall not be liable for or by reason of any of the statements of fact or recitals contained in this
Agreement (except its countersignature thereof) or be required to verify the same, and all such statements and recitals are and shall be deemed to have been made by Passage only.
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(m)
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The Rights Agent shall act hereunder solely as agent for Passage and shall not assume any obligations or relationship
of agency or trust with any of the owners or holders of the CVRs. The Rights Agent shall not have any duty or responsibility in the case of the receipt of any written demand from any Holders with respect to any action or default
by Passage, including, without limiting the generality of the foregoing, any duty or responsibility to initiate or attempt to initiate any proceedings at law or otherwise or to make any demand upon Passage.
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(n)
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The Rights Agent may rely on and be fully authorized and protected in acting or failing to act upon (i) any guaranty of
signature by an “eligible guarantor institution” that is a member or participant in the Securities Transfer Agents Medallion Program or other comparable “signature guarantee program” or insurance program in addition to, or in
substitution for, the foregoing; or (ii) any law, act, regulation or any interpretation of the same even though such law, act, or regulation may thereafter have been altered, changed, amended or repealed.
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(o)
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The Rights Agent shall not be liable or responsible for any failure of Passage to comply with any of its obligations
relating to any registration statement filed with the Securities and Exchange Commission or this Agreement, including without limitation obligations under applicable Law.
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(p)
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Whenever the Rights Agent deems it desirable that a matter be proved or established prior to taking or omitting any
action hereunder, the Rights Agent may (i) rely upon an Officer’s Certificate and (ii) in the absence of bad faith, gross negligence, fraud or willful misconduct on its part, incur no liability and be held harmless by Passage for
or in respect of any action taken or omitted to be taken by it under the provisions of this Agreement in reliance upon such Officer’s Certificate.
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(q)
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All funds received by the Rights Agent under this Agreement that are to be distributed or applied by the Rights Agent
in the performance of services hereunder (the “Funds”) shall be held by the Rights Agent as agent for
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(r)
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The obligations of Passage and the rights of the Rights Agent under this Section 3.2, Section 3.1 and Section 2.4
shall survive the expiration of the CVRs and the termination of this Agreement and the resignation, replacement or removal of the Rights Agent.
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Section 3.3
|
Resignation and Removal; Appointment of Successor.
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(a)
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The Rights Agent may resign at any time by written notice to Passage. Any such resignation notice shall specify the
date on which such resignation will take effect (which shall be at least thirty (30) days following the date that such resignation notice is delivered), and such resignation will be effective on the earlier of (i) the date so
specified and (ii) the appointment of a successor Rights Agent.
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(b)
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Passage will have the right to remove the Rights Agent at any time by written notice to the Rights Agent, specifying
the date on which such removal will take effect. Such notice will be given at least thirty (30) days prior to the date so specified (or, if earlier, the appointment of the successor Rights Agent).
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(c)
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If the Rights Agent resigns, is removed or becomes incapable of acting, Passage will promptly appoint a qualified
successor Rights Agent. Notwithstanding the foregoing, if Passage fails to make such appointment within a period of thirty (30) days after giving notice of such removal or after it has been notified in writing of such resignation
or incapacity by the resigning or incapacitated Rights Agent, then the incumbent Rights Agent may apply to any court of competent jurisdiction for the appointment of a new Rights Agent. The successor Rights Agent so appointed
will, upon its acceptance of such appointment in accordance with this Section 3.3(c) and Section 3.4, become the Rights Agent for all purposes hereunder.
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(d)
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Passage will give notice to the Holders of each resignation or removal of the Rights Agent and each appointment of a
successor Rights Agent in accordance with Section 7.2. Each notice will include the name and address of the successor Rights Agent. If Passage fails to send such notice within ten (10) Business Days after acceptance of
appointment by a successor Rights Agent, the successor Rights Agent will cause the notice to be mailed at the expense of Passage.
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(e)
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Notwithstanding anything to the contrary in this Section 3.3, unless consented to in writing by the Acting
Holders, Passage will not appoint as a successor Rights Agent any Person that is not a stock transfer agent of national reputation or the corporate trust department of a commercial bank.
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(f)
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The Rights Agent will reasonably cooperate with Passage and any successor Rights Agent in connection with the
transition of the duties and responsibilities of the Rights Agent to the successor Rights Agent, including the transfer of all relevant data, including the CVR Register, to the successor Rights Agent, but such predecessor Rights
Agent shall not be required to make any additional expenditure or assume any additional liability in connection with the foregoing.
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Section 3.4
|
Acceptance of Appointment by Successor. Every successor Rights Agent appointed
hereunder will, at or prior to such appointment, execute, acknowledge and deliver to Passage and to the resigning or removed Rights Agent an instrument accepting such appointment and a counterpart of this Agreement, and such
successor Rights Agent, without any further act, deed or conveyance, will become vested with all the rights, powers, trusts and duties of the Rights Agent; provided that upon the
request of Passage or the successor Rights Agent, such resigning or removed Rights Agent will execute and deliver an instrument transferring to such successor Rights Agent all the rights, powers and trusts of such resigning or
removed Rights Agent.
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Section 4.1
|
List of Holders. Passage will furnish or cause to be furnished to the Rights
Agent, in such form as Passage receives from Passage’s transfer agent (or other agent performing similar services for Passage), the names and addresses of the Holders within fifteen (15) Business Days following the Closing Date.
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Section 4.2
|
Efforts.
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|
(a)
|
During the applicable CVR Period, Passage will, and will cause its Subsidiaries to, use Commercially Reasonable Efforts
to collect the Legacy Asset Payments, to the extent payable to Passage. For the avoidance of doubt, during and after the applicable CVR Period, Passage shall not be required to use any efforts to pursue the collection of any
Legacy Asset Payments, except as required by this Section 4.2(a).
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(b)
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Notwithstanding anything herein to the contrary, but subject to Section 4.2(a) and Section 4.3, (i)
Passage and its Affiliates shall have the power and right to control all aspects of their businesses and operations (and all of their assets and products), and subject to Passage’s compliance with the terms of this Agreement,
Passage and its Affiliates may exercise or refrain from exercising such power and right as it may deem appropriate and in the best overall interests of Passage and its Affiliates and its and their stockholders, rather than the
interest of the Holders, (ii) none of Passage or any of its Affiliates (or any director, officer, employee, or other representative of the foregoing) owes any fiduciary duty or similar duty or any other implied duties to any
Holder in respect of the CVRs, the Legacy Asset Payments or the Gemma Sublicenses, (iii) except as specifically provided in Section 4.2(a), Passage shall have no obligation to take any action in order to obtain, maximize
or expedite the receipt of any Legacy Asset Payments or to minimize Permitted Deductions, (iv) except as expressly set forth in Article 3 and Section 4.2(a), none of Passage or any of its Subsidiaries shall have
any obligation or liability whatsoever to any Person relating to or in connection with any action, or failure to act, with respect to the collection of any Legacy Asset Payment, and (v) in no event shall Passage or any of its
Subsidiaries be required to make any payment or advance any funds to Gemma or any other Person (other than de minimis administrative costs) in order to obtain, facilitate, accelerate or
otherwise further the receipt of any Legacy Asset Payment.
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(c)
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Subject to the requirements of Section 4.2(a) and the other contractual obligations of Passage expressly set
forth in this Agreement, (i) the Holders acknowledge that Passage has a fiduciary obligation to operate its business in the best interests of its stockholders, and any potential obligation to pay CVR Payments will not create any
express or implied obligation to operate its business in any particular manner in order to maximize CVR Proceeds, (ii) except as expressly set forth in this Agreement, the Holders are not relying on any representation of Passage
or any other Person with regard to any Legacy Asset Payments or other action involving the Gemma Sublicenses following the Closing, and neither Passage nor any other Person has provided, or can provide, any assurance to the
Holders that any CVR Proceeds will in fact be earned and paid, and (iii) none of Passage or any of its Subsidiaries, officers, directors or Affiliates shall have any obligation or liability whatsoever to any Person relating to or
in connection with any action, or failure to act, with respect to the collection of any Legacy Asset Payments, and in no event shall any of Passage, its Subsidiaries, directors, officers and Affiliates be deemed to have any
fiduciary or similar duties to any Holder by virtue of this Agreement.
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(d)
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Following the expiration of the applicable CVR Period, Passage shall be permitted to take any action in respect of the
Gemma Sublicenses in its sole and absolute discretion.
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(e)
|
Passage shall make the GM1 2027 License Payment when due and payable under the Penn License Agreement.
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Section 4.3
|
Prohibited Actions.
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|
(a)
|
During the applicable CVR Period, Passage shall not (i) terminate, amend or waive provision of any Gemma Sublicense in
a manner that would reasonably be expected to materially and adversely affect Passage’s ability to collect any Legacy Asset Payments or the rights of the Holders hereunder; (ii) transfer or assign the Gemma Sublicenses, or any
rights to receive payments thereunder, to any other Person (other than a Subsidiary of Passage), unless such Person assumes all of Passage’s obligations under this Agreement; (iii) grant any lien, security interest, pledge or
similar interest in any Legacy Asset Payments (other than liens, security interests, pledges or similar interests generally granted with respect to all assets of Passage, and not specific to the
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(b)
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Notwithstanding anything in this Agreement to the contrary, (x) the covenants of Passage set forth in Section 4.2
shall not be deemed breached on account of Passage’s failure to (i) hire or retain any new employees specifically for the purpose of collecting the Legacy Asset Payments or (ii) initiate, prosecute or maintain any litigation
against Gemma or any other Person in connection with the Legacy Asset Payments; and (y) any exercise by the Acting Holders of enforcement rights under Section 7.6 with respect to Article 4 shall be subject to the
foregoing limitation.
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Section 4.4
|
Audit Rights.
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(a)
|
Until the termination of this Agreement and for a period of two (2) years thereafter, Passage shall keep, and shall
require its Affiliates to keep, complete and accurate books and records to the extent necessary to calculate the CVR Payments payable under this Agreement. The Acting Holders shall have the right to cause an independent certified
public accounting firm of nationally recognized standing reasonably acceptable to Passage (the “Independent Accountant”) to audit such books and records for the sole purpose of confirming the CVR Payments payable hereunder,
subject to (x) the prior execution and delivery of a reasonable confidentiality agreement by such Independent Accountant in form and substance reasonably satisfactory to Passage and (y) such access not unreasonably interfering
with the conduct of the business of Passage or any of its Affiliates. Upon at least fifteen (15) Business Days’ prior written notice from the Acting Holders, such audit shall be conducted during regular business hours in such a
manner as to not unnecessarily interfere with Passage’s normal business activities.
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(b)
|
Such audit shall not be performed more frequently than once per calendar year, and no CVR Payment Period that has been
the subject of a prior audit may be audited more than once. The Independent Accountant shall disclose to the Rights Agent or the Acting Holders, as applicable, only whether the calculations are correct or not and the specific
details concerning any discrepancies. No other information shall be shared, and in no event shall Passage be required to provide any Tax returns or any other Tax information it deems confidential to the Holders or any other party
(other than the Independent Accountant, subject to the confidentiality agreement referenced above).
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(c)
|
If the audit reveals an overpayment, Passage shall be entitled to withhold such amount from future CVR Payments. If the
audit reveals an underpayment, Passage shall promptly (and in any event within thirty (30) days) remit such amount to the Rights Agent for distribution to the Holders. The Acting Holders shall bear the full cost and expense of
such audit unless such audit discloses an underpayment by Passage of ten percent (10%) or more of the CVR Payment due under this Agreement for the applicable period, in which case Passage shall bear the full cost and expense of
such audit. The Rights Agent shall be entitled to rely on any audit report delivered by the Independent Accountant pursuant to this Section 4.4 and shall have no duty or liability with respect to, and shall not be deemed
to have knowledge of, any adjustment or any event relating thereto unless and until it shall have received such report.
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Section 5.1
|
Amendments Without Consent of Holders or Rights Agent.
|
|
(a)
|
Passage, at any time and from time to time, may enter into one or more amendments to this Agreement for any of the
following purposes, without the consent of any of the Holders or the Rights Agent (subject to Section 5.3):
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(i)
|
to evidence the appointment of another Person as a successor Rights Agent and the assumption by any successor Rights
Agent of the covenants and obligations of the Rights Agent herein in accordance with the provisions hereof;
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(ii)
|
to evidence the succession of another Person to Passage and the assumption of any such successor of the covenants of
Passage outlined herein in a transaction contemplated by Section 6.1;
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(iii)
|
to add to the covenants of Passage such further covenants, restrictions, conditions or provisions for the protection
and benefit of the Holders; provided that in each case, such provisions shall not adversely affect the rights of the Holders;
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(iv)
|
to cure any ambiguity, to correct or supplement any provision in this Agreement that may be defective or inconsistent
with any other provision in this Agreement, or to make any other provisions with respect to matters or questions arising under this Agreement; provided that in each case, such
provisions shall not adversely affect the rights of the Holders;
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(v)
|
as may be necessary or appropriate to ensure that CVRs are not subject to registration under the Securities Act or the
Exchange Act and the rules and regulations made thereunder, or any applicable state securities or “blue sky” laws;
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(vi)
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as may be necessary or appropriate to ensure that Passage is not required to produce a prospectus or an admission
document in order to comply with applicable Law;
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(vii)
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to cancel CVRs (i) in the event that any Holder has abandoned its rights in accordance with Section 2.6, or
(ii) following a transfer of such CVRs to Passage or its Subsidiaries in accordance with Section 2.2 or Section 2.3;
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(viii)
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as may be necessary or appropriate to ensure that Passage complies with applicable Law; or
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(ix)
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to effect any other amendment to this Agreement that would provide any additional rights or benefits to the Holders or
that does not adversely affect the legal rights under this Agreement of any such Holder.
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(b)
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Promptly after the execution by Passage of any amendment pursuant to this Section 5.1, Passage will (or will
cause the Rights Agent to) notify the Holders in general terms of the substance of such amendment in accordance with Section 7.2.
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Section 5.2
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Amendments with Consent of Holders.
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(a)
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In addition to any amendments to this Agreement that may be made by Passage without the consent of any Holder or the
Rights Agent pursuant to Section 5.1, with the consent of the Acting Holders, Passage and the Rights Agent may enter into one or more amendments to this Agreement for the purpose of adding, eliminating or amending any
provisions of this Agreement, even if such addition, elimination or amendment is adverse to the interests of the Holders.
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(b)
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Promptly after the execution by Passage and the Rights Agent of any amendment pursuant to the provisions of this Section 5.2,
Passage will (or will cause the Rights Agent to) notify the Holders in general terms of the substance of such amendment in accordance with Section 7.2.
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Section 5.3
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Effect of Amendments. Upon the execution of any amendment under this Article 5,
this Agreement will be modified in accordance therewith, such amendment will form a part of this Agreement for all purposes and every Holder will be bound thereby. Upon the delivery of a certificate from an appropriate officer of
Passage which states that the proposed supplement or amendment is in compliance with the terms of this Article 5, the Rights Agent shall execute such supplement or amendment. Notwithstanding anything in this Agreement to
the contrary, the Rights Agent shall not be required to execute any
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Section 6.1
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Successor Substituted. Upon any consolidation of or merger by Passage with or
into any other Person, or any conveyance, transfer or lease of substantially all of the properties and assets of Passage to any Person, the surviving Person or acquiring Person (as applicable) shall succeed to, and be substituted
for, and may exercise every right and power of, and shall assume all of the obligations of Passage under this Agreement with the same effect as if such Person had been named as Passage herein.
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Section 7.1
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Notices to Rights Agent and to Passage. All notices, requests and other
communications (each, a “Notice”) to any party hereunder shall be in writing. Such Notice shall be deemed given (a) on the date of delivery, if delivered in person, by FedEx or other internationally recognized overnight
courier service or, (except with respect to any Person other than the Rights Agent), by e-mail (upon confirmation of receipt) prior to 5:00 p.m. in the time zone of the receiving party or on the next Business Day, if delivered
after 5:00 p.m. in the time zone of the receiving party or (b) on the first Business Day following the date of dispatch, if delivered by FedEx or by other internationally recognized overnight courier service (upon proof of
delivery), addressed as follows:
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if to the Rights Agent, to:
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[•]
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if to Passage, to:
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Passage Bio, Inc.
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100 Forge Road, Suite 400
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Watertown, MA 02472
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Attention: [•]
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Email: [***]
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with a copy, which shall not constitute notice, to:
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Latham & Watkins LLP
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200 Clarendon Street
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Boston, MA 02116
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Attention: Peter Handrinos; Leah Sauter
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Email: [***]
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Section 7.2
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Notice to Holders. All Notices required to be given to the Holders will be
given (unless otherwise herein expressly provided) in writing and mailed, first-class postage prepaid, to each Holder at such Holder’s address as set forth in the CVR Register, not later than the latest date, and not earlier than
the earliest date, prescribed for the sending of such Notice, if any, and will be deemed given on the date of mailing. In any case where notice to the Holders is given by mail, neither the failure to mail such Notice, nor any
defect in any Notice so mailed, to any particular Holder will affect the sufficiency of such Notice with respect to other Holders.
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Section 7.3
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Entire Agreement. As between Passage and the Rights Agent, this Agreement
constitutes the entire agreement between the parties with respect to the subject matter of this Agreement, notwithstanding the reference to any other agreement herein, and supersedes all prior agreements and understandings, both
written and oral, among or between any of the parties with respect to the subject matter of this Agreement.
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Section 7.4
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Merger or Consolidation or Change of Name of Rights Agent. Any Person into
which the Rights Agent or any successor Rights Agent may be merged or with which it may be consolidated, or Person resulting from any merger or consolidation to which the Rights Agent or any successor Rights Agent shall be a
party, or any Person succeeding to the stock transfer or other shareholder services business of the Rights Agent or any successor Rights Agent, shall be the successor to the Rights Agent under this Agreement without the execution
or filing of any paper or any further act on the part of any of the parties hereto, provided that such Person would be eligible for appointment as a successor Rights Agent under the
provisions of Section 3.3. The purchase of all or substantially all of the Rights Agent’s assets employed in the performance of transfer agent activities shall be deemed a merger or consolidation for purposes of this Section 7.4.
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Section 7.5
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Successors and Assigns. This Agreement will be binding upon, and will be
enforceable by and inure solely to the benefit of, the Holders, Passage and the Rights Agent and their respective successors and assigns. Except for assignments pursuant to Section 7.4, the Rights Agent may not assign this
Agreement without Passage’s prior written consent. Subject to Section 5.1(a)(ii) and Article 6 hereof, Passage may assign, in its sole discretion and without the consent of any other party, any or all of its
rights, interests and obligations hereunder to one or more of its Affiliates or to any Person with whom Passage is merged or consolidated, or any entity resulting from any merger or consolidation to which Passage shall be a party
(each, an “Assignee”); provided, however, that in connection with any assignment to an Assignee, Passage shall agree to
remain liable for the performance by Passage of its obligations hereunder (to the extent Passage exists following such assignment). Passage or an Assignee may not otherwise assign this Agreement without the prior consent of the
Acting Holders (such consent not to be unreasonably withheld, conditioned or delayed). Any attempted assignment of this Agreement in violation of this Section 7.5 will be void ab initio
and of no effect.
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Section 7.6
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Benefits of Agreement; Action by Acting Holders. Nothing in this Agreement,
express or implied, will give to any Person (other than Passage, the Rights Agent, the Holders and their respective permitted successors and assigns hereunder) any benefit or any legal or equitable right, remedy or claim under
this Agreement or under any covenant or provision herein contained, all such covenants and provisions being for the sole benefit of Passage, the Rights Agent, the Holders and their permitted successors and assigns. The Holders
will have no rights hereunder except as are expressly set forth herein (including the right of the Acting Holders to enforce the obligations of Passage pursuant to Article 4, on behalf of the Holders, as third-party
beneficiaries of such obligations). Except for the rights of the Rights Agent set forth herein, the Acting Holders will have the sole right, on behalf of all Holders, by virtue of or under any provision of this Agreement, to
institute any action or proceeding at law or in equity with respect to this Agreement, and no individual Holder or other group of Holders will be entitled to exercise such rights.
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Section 7.7
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Governing Law. This Agreement and the CVRs will be governed by, and construed
in accordance with, the laws of the State of Delaware (without giving effect to any rule or principle that would result in application of the law of any other jurisdiction) and for all purposes shall be governed by and construed
in accordance with the laws of such State applicable to contracts to be made and performed entirely within such State.
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Section 7.8
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Jurisdiction. In any action or proceeding between any of the parties hereto
arising out of or relating to this Agreement or any of the transactions contemplated hereby, each of the parties hereto: (a) irrevocably and unconditionally consents and submits to the exclusive jurisdiction and venue of the Court
of Chancery of the State of Delaware or, if under applicable Law exclusive jurisdiction is vested in the Federal courts, the United States District Court for the District of Delaware (and appellate courts thereof); (b) agrees that
all claims in respect of such action or proceeding shall be heard and determined exclusively in accordance with clause (a) of this Section 7.8; (c) waives any objection to laying venue in any such action or proceeding in
such courts; (d) waives any objection that such courts are an
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Section 7.9
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WAIVER OF JURY TRIAL. EACH
OF THE PARTIES HERETO (AND BY ACCEPTING THE CVRS, THE HOLDERS) HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED
HEREBY. EACH PARTY HERETO CERTIFIES AND ACKNOWLEDGES THAT (I) NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO
ENFORCE THE FOREGOING WAIVER, (II) EACH PARTY HERETO UNDERSTANDS AND HAS CONSIDERED THE IMPLICATION OF THIS WAIVER, (III) EACH PARTY HERETO MAKES THIS WAIVER VOLUNTARILY, AND (IV) EACH PARTY HERETO HAS BEEN INDUCED TO ENTER INTO
THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 7.9.
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Section 7.10
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Severability Clause. In the event that any provision of this Agreement, or the
application of any such provision to any Person or set of circumstances, is for any reason determined to be invalid, unlawful, void or unenforceable to any extent, the remainder of this Agreement, and the application of such
provision to Persons or circumstances other than those as to which it is determined to be invalid, unlawful, void or unenforceable, will not be impaired or otherwise affected and will continue to be valid and enforceable to the
fullest extent permitted by applicable Law. Upon such a determination, the parties hereto will negotiate in good faith to modify this Agreement so as to effect the original intent of the parties as closely as possible in a
mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the fullest extent possible; provided, however, that if an excluded provision shall affect the rights, immunities, liabilities, duties or obligations of the Rights Agent, the Rights Agent shall be entitled to resign
immediately upon written notice to Passage.
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Section 7.11
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Counterparts; Effectiveness. This Agreement may be signed in any number of
counterparts, each of which will be deemed an original, with the same effect as if the signatures thereto and hereto were upon the same instrument. This Agreement or any counterpart may be executed and delivered by electronic
communications by portable document format (.pdf), each of which shall be deemed an original. This Agreement will become effective when each party hereto will have received a counterpart hereof signed by the other party hereto.
Until and unless each party hereto has received a counterpart hereof signed by the other party hereto, this Agreement will have no effect and no party will have any right or obligation hereunder (whether by virtue of any oral or
written agreement or any other communication).
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Section 7.12
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Termination. This Agreement will automatically terminate with respect to an
applicable Legacy Asset Payment and be of no further force or effect and, except as provided in Section 3.2, the parties hereto will have no further liability hereunder, and the CVRs will expire without any consideration
or compensation therefor with respect to the applicable Legacy Asset Payment, upon the earlier of (a) the expiration of the applicable CVR Period and (b) the date on which all Legacy Asset Payments have been received and all CVR
Payments in respect thereof have been distributed to the Holders. The termination of this Agreement will not affect or limit the right of Holders to receive the CVR Payments under Section 2.4 to the extent earned prior to
the termination of this Agreement, and the provisions applicable thereto will survive the expiration or termination of this Agreement; provided that, notwithstanding anything to the
contrary herein, if the MLD Payments remain invoiced to Gemma but unpaid as of December 31, 2027, the Holders shall have no right to CVR Payments related to MLD Payments following such date.
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Section 7.13
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Force Majeure. Notwithstanding anything to the contrary contained herein, none
of the Rights Agent, Passage or any of its Subsidiaries (except as it relates to the obligations of the Company (and the Surviving Corporation) under Article 3) will be liable for any delays or failures in performance
resulting from acts beyond its reasonable control including acts of God, pandemics (including COVID-19), terrorist acts, shortage of supply, breakdowns or malfunctions, interruptions or malfunctions of computer facilities, or loss
of data due to power failures or mechanical difficulties with information storage or retrieval systems, labor difficulties, war or civil unrest.
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Section 7.14
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Construction.
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(a)
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For purposes of this Agreement, whenever the context requires: singular terms will include the plural, and vice versa;
the masculine gender will include the feminine and neuter genders; the feminine gender will include the masculine and neuter genders; and the neuter gender will include the masculine and feminine genders.
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(b)
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As used in this Agreement, the words “include” and “including,” and variations thereof, will not be deemed to be terms
of limitation, but rather will be deemed to be followed by the words “without limitation.”
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(c)
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The headings contained in this Agreement are for convenience of reference only, will not be deemed to be a part of this
Agreement and will not be referred to in connection with the construction or interpretation of this Agreement.
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(d)
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Any reference in this Agreement to a date or time shall be deemed to be such date or time in New York City, United
States, unless otherwise specified. The parties hereto have participated jointly in the negotiation and drafting of this Agreement. In the event an ambiguity or question of intent or interpretation arises, this Agreement shall be
construed as if drafted jointly by the parties and no presumption or burden of proof shall arise favoring or disfavoring any Person by virtue of the authorship of any provision of this Agreement.
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(e)
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All references herein to “$” are to United States Dollars.
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PASSAGE BIO, INC.
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By:
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Name:
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Title:
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[•], as Rights Agent
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By:
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Name:
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Title:
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