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UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

WASHINGTON, D.C. 20549

FORM 8-K

CURRENT REPORT

Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934

Date of Report (Date of earliest event reported): June 21, 2024

AMYLYX PHARMACEUTICALS, INC.

(Exact name of Registrant as Specified in Its Charter)

Delaware	001-41199	46-4600503
(State or Other Jurisdiction of Incorporation)	(Commission File Number)	(IRS Employer Identification No.)
43 Thorndike St., Cambridge, MA		02141
(Address of Principal Executive Offices)		(Zip Code)

Registrant’s Telephone Number, Including Area Code: (617) 682-0917

Not Applicable

(Former Name or Former Address, if Changed Since Last Report)

Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:

 

☐	Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
☐	Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
☐	Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
☐	Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))

Securities registered pursuant to Section 12(b) of the Act:

 

Title of each class		Trading Symbol(s)		Name of each exchange on which registered
Common Stock, $0.0001 par value per share		AMLX		Nasdaq Global Select Market

Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§ 230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§ 240.12b-2 of this chapter).

Emerging growth company ☐

If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ☐

 

 

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Item 1.01. Entry Into a Material Definitive Agreement

On June 21, 2024, Amylyx Pharmaceuticals, Inc., a Delaware corporation (the “Company”), entered into an Asset Purchase Agreement (the “Asset Purchase Agreement”) with Eiger BioPharmaceuticals, Inc., a Delaware corporation (the “Seller”), pursuant to which, subject to the terms and conditions set forth in the Asset Purchase Agreement, the Company agreed to acquire substantially all of the Seller’s rights, title, and interests in, to and under those assets and interests used by the Seller in the development, manufacture, and commercialization of Avexitide (as such term is defined in the Asset Purchase Agreement) (the “Transferred Assets”) for $35.1 million plus the aggregate amount of Determined Cure Costs and Assumed Liabilities (as such terms are defined in the Asset Purchase Agreement) (the “Transaction”).

The Asset Purchase Agreement contains customary representations and warranties of the parties and is subject to a number of closing conditions, including, among others, (i) the accuracy of representations and warranties of the parties; (ii) the entry of an order approving the Asset Purchase Agreement and the transactions therein by the Bankruptcy Court (as defined below); (iii) compliance in all material respects with the obligations of the parties set forth in the Asset Purchase Agreement; and (iv) the receipt by the Seller of certain third-party consents.

The Seller and its direct subsidiaries filed voluntary petitions for relief under chapter 11 of Title 11 of the United States Code (the “Bankruptcy Code”) in the United States Bankruptcy Court for the Northern District of Texas (the “Bankruptcy Court”) under the caption In re Eiger BioPharmaceuticals, Inc., et al, Case No. 24-80040, which commenced on April 1, 2024. The foregoing description of the Asset Purchase Agreement remains subject to approval by the Bankruptcy Court, is not complete, and is qualified in its entirety by reference to the Asset Purchase Agreement, a copy of which is attached to this Current Report on Form 8-K as Exhibit 10.1, and is hereby incorporated herein by reference.

Cautionary Note Regarding Forward-Looking Statements

This Form 8-K contains statements that are, or may be deemed, “forward-looking statements” within the meaning of the Private Securities Litigation Reform Act of 1995, as amended. Because such statements are subject to risks and uncertainties, actual results may differ materially from those expressed or implied by such forward-looking statements. Such statements include, but are not limited to, the Company’s expectations regarding the Asset Purchase Agreement, including the expectation of the entry of an order approving the Asset Purchase Agreement and the transactions therein by the Bankruptcy Court, and the Company’s ability to complete the transactions contemplated by the Asset Purchase Agreement. Any forward-looking statements in this Form 8-K are based on management’s current expectations of future events and are subject to a number of risks and uncertainties that could cause actual results to differ materially and adversely from those set forth in or implied by such forward-looking statements. Risks that contribute to the uncertain nature of the forward-looking statements include: uncertainty surrounding the Bankruptcy’s Court entry of an order approving the Asset Purchase Agreement and the transactions therein; the occurrence of any event, change or other circumstances that could give rise to the right of the Company or the Seller to terminate the Asset Purchase Agreement, and the possibility that the Transaction is not completed. All forward-looking statements contained in this Form 8-K speak only as of the date on which they were made. The Company undertakes no obligation to update such statements to reflect events that occur or circumstances that exist after the date on which they were made, except as required by law.

Item 9.01. Financial Statements and Exhibits

(d) Exhibits.

 

Exhibit No		Description
10.1		Asset Purchase Agreement, dated June 21, 2024.*
104		Cover Page Interactive Data File (embedded with the Inline XBRL document).

 

*	In accordance with Item 601(a)(5) of Regulation S-K, certain schedules or similar attachments to this exhibit have been omitted from this filing.

 

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SIGNATURES

Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned thereunto duly authorized.

 

		AMYLYX PHARMACEUTICALS, INC.
Date: June 21, 2024		By:	/s/ James M. Frates
			James M. Frates
			Chief Financial Officer

 

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ASSET PURCHASE AGREEMENT

by and between

Amylyx Pharmaceuticals, Inc., or a wholly owned subsidiary thereof, as Purchaser,

and

EIGER BIOPHARMACEUTICALS, INC., as Seller

Dated as of June 21, 2024

 

 

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Table of Contents

 

					Page
ARTICLE 1.		DEFINED TERMS			1
		1.1		Defined Terms	1
		1.2		Other Definitional and Interpretive Matters	11
ARTICLE 2.		THE PURCHASE AND SALE; CLOSING			13
		2.1		Purchase and Sale	13
		2.2		Excluded Assets	14
		2.3		Assumption of Liabilities	15
		2.4		Excluded Liabilities	15
		2.5		Excluded Contracts	15
		2.6		Nontransferable Assets and Liabilities	16
		2.7		Closing	16
		2.8		Closing Deliveries of the Parties	16
		2.9		Purchase Price; Assumed Liabilities; Deposits	17
		2.10		Transfer Taxes	18
		2.11		Allocation of Purchase Price	19
		2.12		Escrow Accounts	19
		2.13		Tax Withholding	19
ARTICLE 3.		REPRESENTATIONS AND WARRANTIES OF THE SELLER			20
		3.1		Organization, Good Standing and Other Matters	20
		3.2		Authority and Enforceability	20
		3.3		Seller Conflict; Required Filings and Consents	20
		3.4		Transferred Assets	21
		3.5		Compliance With Laws	21
		3.6		Regulatory and Healthcare Matters.	21
		3.7		Permits	23
		3.8		Litigation	24
		3.9		Real Property	24
		3.10		Assigned Contracts	24
		3.11		Financial Statements	25
		3.12		Absence of Material Developments	25
		3.13		Customers and Suppliers	25
		3.14		Intellectual Property	25
		3.15		Inventories	26

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		3.16		Taxes	27
		3.17		Brokers and Finders	28
		3.18		No Other Representations or Warranties	28
ARTICLE 4.		REPRESENTATIONS AND WARRANTIES OF PURCHASER			28
		4.1		Organization, Good Standing and Other Matters	28
		4.2		Authority and Enforceability	28
		4.3		No Conflict: Required Filings and Consents	29
		4.4		Financing	29
		4.5		Solvency	29
		4.6		Litigation	29
		4.7		Brokers and Finders	29
		4.8		Investigation and Agreement by Purchaser; Non-Reliance of Purchaser; No Other Representations and Warranties	29
		4.9		No Other Representations or Warranties	30
ARTICLE 5.		BANKRUPTCY COURT MATTERS			30
		5.1		Competing Transaction	30
		5.2		Bankruptcy Court Filings	31
		5.3		Assumption of Assigned Contracts	32
ARTICLE 6.		PRE-CLOSING COVENANTS			33
		6.1		Conduct of Business	33
		6.2		Access to Information; Confidentiality	34
		6.3		Efforts to Consummate	35
		6.4		Notices and Consents	35
		6.5		Regulatory Matters	35
		6.6		Public Announcements	36
ARTICLE 7.		POST-CLOSING COVENANTS			36
		7.1		Access to Information; Books and Records	36
		7.2		Post-Closing Receipt and Possession of Assets	36
		7.3		Tax Matters	37
ARTICLE 8.		CONDITIONS PRECEDENT			38
		8.1		Conditions to Each Party's Obligation	38
		8.2		Conditions to Obligations of Purchaser	38
		8.3		Conditions to Obligations of the Seller	39
		8.4		Waiver of Condition; Frustration of Conditions	39

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ARTICLE 9.		TERMINATION			39
		9.1		Events of Termination	39
		9.2		Effect of Termination	40
		9.3		Termination Fee	41
ARTICLE 10.		GENERAL PROVISIONS			42
		10.1		Survival of Representations, Warranties and Covenants	42
		10.2		Entire Agreement	42
		10.3		Amendment; No Waiver	42
		10.4		Severability; Specific Versus General Provisions	42
		10.5		Expenses and Obligations	43
		10.6		Notices	43
		10.7		Counterparts	44
		10.8		Governing Law	44
		10.9		Submission to Jurisdiction; Consent to Service of Process	44
		10.10		Waiver of Jury Trial	45
		10.11		Rights Cumulative	45
		10.12		Assignment	45
		10.13		Specific Enforcement; Remedies	45
		10.14		Third-Party Beneficiaries	45
		10.15		No Personal Liability of Directors, Officers and Owners	46
		10.16		General Release.	46
		10.17		Bulk Sales Laws.	47
		10.18		Legal Representation	47

 

 

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SCHEDULES
Schedule 2.1(a)		Transferred Inventory
Schedule 2.1(b)		Assigned Contracts
Schedule 2.1(d)		Regulatory Information
Schedule 2.11		Preliminary Allocation Schedule
Schedule 3.3		Seller Conflict; Required Filings and Consents
Schedule 3.6(g)		IND or Clinical Trial for Avexitide
Schedule 3.10		Assigned Contracts
Schedule 3.12		Absence of Material Developments
Schedule 3.14(a)		Intellectual Property Registrations
Schedule 3.14(b)		Intellectual Property Agreements
Schedule 3.14(d)		Office Actions and Fees Due
Schedule 3.15		Inventories
Schedule 4.3		Purchaser Conflict; Required Filings and Consents
Schedule 6.1		Conduct of Business
Schedule 6.4		Notices and Consents
Schedule 8.2(c)		Third Party Consents
EXHIBITS
Exhibit A		Form of Bill of Sale and Assignment and Assumption Agreement
Exhibit B		Form of Escrow Agreement
Exhibit C		Form of Intellectual Property Assignment Agreement

 

 

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ASSET PURCHASE AGREEMENT

THIS ASSET PURCHASE AGREEMENT (this “Agreement”), dated as of June 21, 2024 (the “Effective Date”) is entered into by and between Amylyx Pharmaceuticals, Inc., a Delaware corporation, or a wholly owned subsidiary thereof (“Purchaser”) and Eiger BioPharmaceuticals, Inc., a Delaware corporation (the “Seller” or “Eiger”).

RECITALS

WHEREAS, on April 1, 2024 (the “Petition Date”) the Seller and certain of its Affiliates filed voluntary petitions for relief under chapter 11 of Title 11 of the United States Code (the “Bankruptcy Code”) in the United States Bankruptcy Court for the Northern District of Texas (the “Bankruptcy Court”), thereby commencing chapter 11 cases (collectively, the “Bankruptcy Cases”);

WHEREAS, the Seller is a debtor-in-possession under the Bankruptcy Code and manages its properties and assets pursuant to Sections 1107(a) and 1108 of the Bankruptcy Code;

WHEREAS, the Seller is engaged in the Business and owns, directly or indirectly, all of the Transferred Assets;

WHEREAS, the Seller desires to sell (or cause to be sold) to Purchaser, and Purchaser desires to purchase from the Seller, all of the Transferred Assets Free and Clear, and the Seller desires Purchaser to assume, and Purchaser desires to assume from the Seller, all of the Assumed Liabilities, in each case upon the terms and subject to the conditions hereof, pursuant to a Sale Order and Sections 105(a), 363 and 365 of the Bankruptcy Code and Rules 6004 and 6006 of the Federal Rules of Bankruptcy Procedure;

WHEREAS, the transactions contemplated by this Agreement and the Related Documents are subject to approval by the Bankruptcy Court and will only be consummated pursuant, among other things, to the Sale Order to be entered in the Bankruptcy Cases; and

WHEREAS, concurrently with the execution of this Agreement, Purchaser shall deposit (or cause to be deposited) an aggregate amount equal to the Deposit Escrow Amount into an escrow account (the “Deposit Escrow Account”) to be established and maintained by Escrow Agent pursuant to the Escrow Agreement.

NOW, THEREFORE, in consideration of the premises and the mutual representations, warranties, covenants, agreements and conditions set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto, intending to be legally bound, hereby agree as follows:

“Action” means any action, audit, claim, complaint, summons, suit, proceeding, arbitration, third party mediation, audit, proceeding, dispute, hearing, inquiry, examination or litigation, whether civil, criminal, investigative, appellate or administrative, whether sounding in contract or tort, or whether at law or in equity, or otherwise under any legal or equitable theory, commenced, brought, conducted or heard by or before, or otherwise involving, any Governmental Authority, arbitrator, or mediator.

“Affiliate” of any particular Person means any other Person, directly or indirectly, controlling, controlled by, or under common control with, such particular Person. For the purposes of this definition, “control” (including, with correlative meaning, the terms “controlled by” and “under common control with”) means the possession, directly or indirectly, of the power to direct or cause the direction of the

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management and policies of a Person, whether through ownership of voting securities, by contract or otherwise.

“Agreement” has the meaning set forth in the preamble.

“Allocation Schedule” has the meaning set forth in Section 2.11.

“Alternate Transaction” has the meaning set forth in Section 9.1(b).

“Applicable Law” means, with respect to any Person, any federal, provincial, state, local law, non-U.S. or international, multinational or other law, legislation, treaty, convention, rule, Order, ordinance, principle of common law, code, guidance, regulation, statute or requirement issued, enacted, adopted, promulgated, implemented or otherwise put into effect by or under the authority of any Governmental Authority and the applicable rule of any stock exchange, applicable to such Person or such Person’s subsidiaries, Affiliates, or to any of their respective securities, assets, properties or businesses. For the avoidance of doubt, Applicable Laws shall include Information Privacy and Security Laws.

“Apportioned Taxes” has the meaning set forth in Section 7.3(a)(i).

“Asset Taxes” means any Taxes with respect to the ownership or operation of the Transferred Assets, excluding any Transfer Taxes that are the responsibility of Purchaser under Section 2.10.

“Assigned Contracts” has the meaning set forth in Section 2.1(b).

“Assumed Liabilities” has the meaning set forth in Section 2.3.

“Assumption Notice” has the meaning set forth in Section 5.3(a).

“Attorney-Client Information” has the meaning set forth in Section 10.18.

“Auction” has the meaning set forth in Section 5.2(h).

“Avexitide” means (a) a peptide having the sequence of H-Asp-Leu-Ser-Lys-Gln-Met-Glu-Glu-Glu-Ala-Val-Arg-Leu-Phe-Ile-Glu-Trp-Leu-Lys-Asn-Gly-Gly-Pro-Ser-Ser-Gly-Ala-Pro-Pro-Pro-Ser-NH2, a truncated form of the glucagon-like peptide 1 receptor (GLP-1R) agonist exendin-4 peptide, with GLP-1 receptor (GLP-1R) antagonistic and GLP-1R-mediated signaling inhibiting activities; or (b) any salts, hydrates, solvates, esters, metabolites, intermediates, stereoisomers, polymorph, analogues, conjugates, complexes, cocrystals, derivatives, or formulations of the peptide described in the foregoing clause (a).

“Avoidance Actions” means any and all avoidance, recovery, subordination, or other claims, actions, rights, or remedies that may be brought by or on behalf of the Seller or its estate or other authorized parties in interest under the Bankruptcy Code or applicable non-bankruptcy law, including actions or remedies under sections 510, 542, 543, 544, 545, and 547 through and including 553 of the Bankruptcy Code.

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“Bankruptcy Cases” has the meaning set forth in the Recitals.

“Bankruptcy Code” has the meaning set forth in the Recitals.

“Bankruptcy Court” has the meaning set forth in the Recitals.

“Base Price” means $35,100,000.

“Bid Procedures” means those certain bidding procedures for the sale of the Seller’s assets approved by the Bankruptcy Court as filed at Docket No. 119.

“Bid Procedures Order” means that certain Order entered by the Bankruptcy Court at Docket No. 94 approving the Bid Procedures.

“Bill of Sale and Assignment and Assumption Agreement” means the bill of sale and assignment and assumption agreement, dated as of the Closing Date, by and between the applicable members of the Seller Group and Purchaser, substantially in the form attached hereto as Exhibit A.

“Business” means the business as presently conducted and as has been conducted in the twelve (12) months prior to the Effective Date of each member of the Seller Group related to the research, development and manufacture of Avexitide.

“Business Books and Records” has the meaning set forth in Section 2.1(e).

“Business Day” means any day other than (a) a Saturday, Sunday or federal holiday or (b) a day on which commercial banks in New York City, New York are authorized or required to be closed.

“Business Intellectual Property” means all Owned Intellectual Property Assets together with all other Intellectual Property used in, held for use in, or necessary for the conduct of the Business.

“Clinical Trial” means a clinical trial in human subjects that has been approved by an institutional review board or ethics committee, as applicable, and is designed to measure the safety or efficacy of a therapeutic product, including any phase 1 clinical trial, phase 2 clinical trial, phase 3 clinical trial, or any such clinical trial incorporating more than one (1) of these phases.

“Closing” has the meaning set forth in Section 2.7.

“Closing Date” has the meaning set forth in Section 2.7.

“Code” means the Internal Revenue Code of 1986, as amended.

“Competing Bid” has the meaning set forth in Section 5.1.

“Confidentiality Agreement” means that certain Confidentiality Agreement, dated as of April 4, 2024, by and between the Seller and Amylyx Pharmaceuticals, Inc.

“Consent” means any consent, approval, authorization, waiver or license, or an Order of the Bankruptcy Court that deems or renders unnecessary the same.

“Contract” means any written agreement, mortgage, indenture, guarantee, lease (whether for real or personal property), contract or subcontract, or other agreement or instrument, whether written or oral

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that is binding upon a Person or its property, in each case, other than a purchase order, service order or sales order.

“Contracting Parties” has the meaning set forth in Section 10.15.

“Cure Costs” means any and all costs or expenses required to be paid to assume any of the Assigned Contracts pursuant to section 365(b)(1)(A) and (B) of the Bankruptcy Code.

“Deposit Escrow Account” has the meaning set forth in the Recitals.

“Deposit Escrow Amount” means the amount to be delivered to the Escrow Agent to be held in the Deposit Escrow Account in accordance with the Bid Procedures Order, which is $1,755,000.

“Designated Contracts” has the meaning set forth in Section 5.3(b).

“Designation Deadline” has the meaning set forth in Section 5.3(b).

“Determined Cure Costs” means all Cure Costs for Assigned Contracts, as determined by a final order of the Bankruptcy Court and acceptable to the Purchaser, which shall not in any event exceed $277,703.63.

“Documents” means all of the Sellers and its Affiliates’ written files, documents, instruments, papers, books, reports, records, tapes, microfilms, photographs, letters, budgets, forecasts, plans, operating records, safety and environmental reports, data, studies, and documents, Tax Returns, ledgers, journals, title policies, customer lists, regulatory filings, operating data and plans, research material, technical documentation (design specifications, engineering information, test results, logic manuals, processes, flow charts, etc.), user documentation (installation guides, user manuals, training materials, release notes, working papers, etc.), marketing documentation (sales brochures, flyers, pamphlets, web pages, etc.), and other similar materials, in each case whether or not in electronic form (excluding, in each case, any Tax Return of the Seller and its Affiliates).

“Effective Date” has the meaning set forth in the preamble.

“Enforceability Exceptions” means applicable bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium, receivership and similar Applicable Laws affecting the enforcement of creditors’ rights generally and general equitable principles.

“Escrow Agent” means Kurtzman Carson Consultants LLC.

“Escrow Agreement” means the escrow agreement, dated as of the Effective Date, by and among Purchaser, the Seller and the Escrow Agent in substantially the form attached hereto as Exhibit B.

“Excluded Assets” has the meaning set forth in Section 2.2.

“Excluded Contracts” has the meaning set forth in Section 2.5.

“Excluded Liabilities” has the meaning set forth in Section 2.4.

“FDA” means the United States Food and Drug Administration or any successor agency thereto.

“Final Order” means an Order, judgment or other decree of the Bankruptcy Court or any other Governmental Authority of competent jurisdiction that has not been reversed, vacated, modified or

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amended, is not stayed and remains in full force and effect; provided that such Order shall be considered a Final Order only after the time period for third parties seeking appeal has expired without the filing of any appeal or motion for reconsideration.

“Fraud” means, with respect to the making of any representation or warranty set forth in ARTICLE 3 or ARTICLE 4, or in any certificate delivered pursuant to this Agreement, (a) a false representation of material fact with respect thereto, (b) knowledge that such representation is false, and (c) an intention to induce the party to whom such representation is made to act or refrain from acting in reliance upon it.

“Free and Clear” means free and clear of all Liens (other than the Assumed Liabilities) to the maximum extent permitted by Section 363(f) of the Bankruptcy Code.

“GAAP” means generally accepted accounting principles in the United States as of the Effective Date.

“Governmental Authority” means any domestic or foreign national, provincial, state, multi-state or municipal or other local government, any subdivision, agency, commission or authority thereof, any court (including the Bankruptcy Court), arbitrator (private or public) or tribunal or any quasi-governmental or private body exercising any regulatory or taxing authority thereunder (including the IRS and the FDA).

“IND” means an investigational new drug application with respect to Avexitide filed with the FDA for beginning clinical trials in humans, or any comparable application filed with the regulatory authorities of a country other than the United States prior to beginning clinical trials in humans in that country, as well as all supplements or amendments filed with respect to such filings.

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“Information Privacy and Security Laws” means all Applicable Laws concerning the privacy, protection, processing, transfer or security of Personal Information, including, if and where applicable, Health Insurance Portability and Accountability Act of 1996, as amended (“HIPAA”), state health privacy laws, breach notification laws, state social security number protection laws, the EU General Data Protection Regulation (“GDPR”), the UK Data Protection Act, the Federal Trade Commission Act, the Gramm Leach Bliley Act, the Fair Credit Reporting Act, the Fair and Accurate Credit Transaction Act, state consumer protection Applicable Laws, and Applicable Laws governing email and telephonic marketing.

“Intellectual Property” means any and all intellectual property and proprietary rights in any jurisdiction throughout the world, including rights arising from the following: (i) patents and patent applications, and all inventions claimed therein, design rights, industrial design registrations and applications therefor, divisions, continuations, continuations-in-part, reissues, substitutes, renewals, registrations, confirmations, reexaminations, extensions and any provisional applications, and any foreign or international equivalent of any of the foregoing; (ii) Trademarks; (iii) works of authorship, copyrights and all registrations and applications for registration thereof, and any and all moral rights therein; (iv) trade secrets, confidential information, rights in data and databases, and know-how; (v) rights in formulae, methods, techniques, processes, assembly procedures, software, software code (in any form, including source code and executable or object code), subroutines, test results, test vectors, user interfaces, protocols, schematics, specifications, drawings, prototypes, molds and models, and other forms of technology (whether or not embodied in any tangible form and including all tangible embodiments of the foregoing), (vi) social media accounts, social media identifiers, internet domain name registrations, (vii) all rights to sue at law or in equity for any past, present or future infringement or other impairment of any of the foregoing, including the right to receive all proceeds and damages therefrom, and all rights to obtain renewals, continuations, divisions, or other extensions of legal protections pertaining thereto and (viii) all proceeds therefrom with respect to any of the foregoing, including any royalties.

“Intellectual Property Assignment Agreement” means the assignment agreement, dated as of the Closing Date, by and between the applicable member of the Seller Group and Purchaser, substantially in the form attached hereto as Exhibit C.

“Intellectual Property Registrations” means, with respect to any Owned Intellectual Property Assets, any issuance, registration, application or other filing by, to or with any Governmental Authority or authorized private registrar in any jurisdiction, including domain names, registered Trademarks and copyrights, issued and reissued patents and pending applications for any of the foregoing.

“IRS” means the United States Internal Revenue Service.

“Knowledge” means (a) with regard to the Seller, the actual knowledge, without any implication of verification or investigation concerning such knowledge of Seller’s chief executive officer, chief financial officer, general counsel, and chief technical officer, in each case, as of the Effective Date (or, with respect to a certificate delivered pursuant to this Agreement, as of the date of delivery of such certificate) and (b) with regard to Purchaser, the actual knowledge, without any implication of verification or investigation concerning such knowledge of Purchaser’s chief executive officer as of the Effective Date (or, with respect to a certificate delivered pursuant to this Agreement, as of the date of delivery of such certificate).

“Law Firm” means Sidley Austin LLP and its successors.

“Liabilities” shall mean debts, liabilities, duties, obligations, assessment, cost, expense, loss, expenditure, charge, fee, penalty, fine, or commitments of any nature whatsoever, whether direct or indirect, asserted or unasserted, known or unknown, absolute or contingent, accrued or unaccrued, matured or

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unmatured or otherwise, whenever or however arising (including whether arising out of any Contract or in a tort claim based on negligence or strict liability).

“Lien” means all forms of lien (including mechanic’s, contractor’s or other similar liens arising under or relating to the provision of goods or services on or to any Transferred Assets, and liens arising under the Bankruptcy Code), encumbrance, defect or irregularity in title, pledge, mortgage, deed of trust, deed to secure debt, security interest, charge, transfer restriction or similar agreement or encumbrance, including any dedication under any gathering, transportation, treating, processing, fractionating, purchase, sale or similar agreements, or any other rights granted or consensual as or against any Transferred Assets including easements, encroachments, rights of first refusal, options, or any other interest or right in property that constitutes a lien or interest within the definition or adjudication of such terms under Section 101(37) of the Bankruptcy Code.

“Material Adverse Effect” means any event, occurrence, effect, matter, change, circumstance, development or state of facts that, either alone or in combination with any other related effect, is or would reasonably be expected to be materially adverse to Avexitide, the Transferred Assets, or the Assumed Liabilities taken as a whole; provided, however, that none of the following shall be deemed (either alone or in combination) to constitute, and none of the following events, occurrences, effects, matters, changes, circumstances, developments or states of facts will be deemed, either alone or in combination, to constitute a Material Adverse Effect, or be taken into account in determining whether there has been or would reasonably be expected to be a Material Adverse Effect: (a) any change in, or effects arising from or relating to, general business, economic, social, legal, tax, regulatory, or political conditions or the securities, syndicated loan, credit or financial markets; (b) any change in currency exchange rates;(c) any change from, or effects arising from or relating to, the occurrence, escalation or material worsening of any act of God or other calamity, natural disaster, epidemic, pandemic, outbreak of disease or other public health emergency, outbreak, hostility, act of war, sabotage, cyber-attack or terrorism or military action; (d) any action taken by Purchaser or its Affiliates with respect to the Transactions or with respect to the Business; (e) any action taken by the Seller at the request of or with the consent of Purchaser or otherwise in compliance with the terms of this Agreement or any change from, or effects arising from or relating to, Purchaser’s failure to consent to any action restricted by Section 6.1; (f) any change in, or effects arising from or relating to changes in, Applicable Law or accounting rules (including GAAP) or any interpretation thereof; (g) the failure of the Business to meet any of its projections, forecasts, estimates, plans or predictions, (it being understood that the underlying cause of the failure to meet such projections, forecasts, estimates, plans or predictions may be taken into account in determining whether a Material Adverse Effect has occurred to the extent not otherwise excluded by this definition); except in the cause of clauses (a) through (c), to the extent such conditions, events, changes, crises and disasters, as applicable, do not have a material and disproportionate impact on Avexitide, the Transferred Assets and the Assumed Liabilities, taken as a whole, as compared to similar pharmaceutical products being manufactured and developed by pharmaceutical businesses (in which case, only the extent of such disproportionate effect shall be taken into account when determining whether a Material Adverse Effect has occurred or will occur).

“Non-Transferred Asset” has the meaning set forth in Section 2.6(a).

“Nonparty Affiliates” has the meaning set forth in Section 10.15.

“Order” means any order, assessment, award, decision, injunction, judgment, ruling or verdict entered, issued, made or rendered by any Governmental Authority or arbitrator, including any order entered by the Bankruptcy Court in the Bankruptcy Cases (including the Sale Order).

“Organizational Documents” means (a) the articles or certificates of incorporation and the by-laws of a corporation, (b) the partnership agreement and any statement of partnership of a general

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partnership, (c) the limited partnership agreement and the certificate of limited partnership of a limited partnership, (d) the operating or limited liability company agreement and the certificate of formation of a limited liability company, (e) any charter, joint venture agreement or similar document adopted or filed in connection with the creation, formation or organization of a Person not described in clauses (a) through (d), and (f) any amendment to or equivalent of any of the foregoing.

“Outside Date” has the meaning set forth in Section 9.1(i).

“Owned Intellectual Property Assets” means the Intellectual Property owned or purported to be owned by any member of the Seller Group that is used in, held for use in, or related to, the conduct of the Business as conducted in the twelve (12) months prior to the Effective Date or proposed to be conducted.

“Permit” means all permits, authorizations, certificates, franchises, consents and other approvals from any Governmental Authority.

“Permitted Liens” means any Liens that exist as of the Effective Date, each of which, for the avoidance of doubt, will be removed or released by operation of the Sale Order.

“Person” means any individual, corporation (including any non-profit corporation), partnership, limited liability company, joint venture, estate, trust, association, organization, labor union or any other entity or Governmental Authority.

“Personal Information” means any information that (a) identifies or can be linked to an individual, including information that alone or in combination with other information held by a member of the Seller Group, can be used to identify, contact or precisely locate a person, including the name, address, telephone number, health information (included protected health information (as defined in 45 C.F.R. §106.103)) and personal data (as defined in the GDPR and the related national implementing Applicable Laws and regulations of the European Union Member States) or (b) is governed, regulated or protected by one or more Information Privacy and Security Laws.

“Petition Date” has the meaning set forth in the Recitals.

“Pre-Closing Tax Period” means any taxable period ending on or prior to the Closing Date and the portion of any Straddle Period through the end of the Closing Date.

“Public Health Measures” means any closures, “shelter-in-place,” “stay at home,” workforce reduction, social distancing, shut down, closure, curfew or other restrictions or any other Applicable Law, Orders, directives, guidelines or recommendations issued by any Governmental Authority, the Centers for Disease Control and Prevention, the World Health Organization, or any industry group in connection with COVID-19 or any other epidemic, pandemic, or outbreak of disease, or in connection with or in response to any other public health conditions.

“Purchase Price” means the Base Price plus the aggregate amount of Determined Cure Costs and Assumed Liabilities.

“Purchaser” has the meaning set forth in the preamble.

“Purchaser’s FDA Transfer Letter” means the letter to FDA in form and substance reasonably agreed by Purchaser and the Seller, accepting the transfer of rights to the IND issued by FDA for Avexitide from the Seller.

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“Purchaser Group Members” has the meaning set forth in Section 10.18.

“Purchaser Schedules” has the meaning set forth in ARTICLE 4.

“Regulatory Application” means (a) the single application or set of applications for clinical investigation, approval or pre-market approval to conduct human clinical trials or manufacture and sell commercially a pharmaceutical therapeutic product submitted to the FDA including Investigational New Drug exemptions and any related registrations with or notifications to the FDA, (b) any foreign equivalents to such applications filed with any other national or supranational Governmental Authority, and (c) all supplements and amendments that may be filed with respect to any of the foregoing.

“Regulatory Information” means any INDs, filings, submissions, applications, declarations, data, reports or correspondence, including dossiers, manufacturing data, drug master files, inspection reports, adverse event reports and files, and complaint files, between Eiger or its Affiliates and any Governmental Authority that are in the possession or under the control of Eiger or its Affiliates and relate to Avexitide, including any IND, Regulatory Application and regulatory approval.

“Regulatory Laws” means the Federal Food, Drug and Cosmetic Act (21 U.S.C. §§ 301 et seq.) and the rules, regulations, policies, and guidance promulgated thereunder by the FDA, including but not limited to GLPs, GCPs, GMPs, and all comparable federal, state, or foreign laws applicable to the Seller and its Affiliates or affecting their Business.

“Related Claims” means all claims or causes of action (whether in contract or tort, in law or in equity, or granted by statute or otherwise) that may be based upon, arise out of or relate to this Agreement, the Related Documents and any other document or instrument delivered pursuant to this Agreement or the Related Documents, or the negotiation, execution, termination, validity, interpretation, construction, enforcement, performance or nonperformance of this Agreement or the Related Documents or otherwise arising from the Transactions or the relationship between the parties (including any claim or cause of action based upon, arising out of or related to any representation or warranty made in or in connection with, or as an inducement to enter into, this Agreement or the Related Documents).

“Related Documents” means the Escrow Agreement, the Bill of Sale and Assignment and Assumption Agreement, and Intellectual Property Assignment Agreement.

“Sale Order” means an Order of the Bankruptcy Court issued pursuant to sections 105(a), 363 and 365 of the Bankruptcy Code in form and substance reasonably acceptable to Purchaser and the Seller approving this Agreement and all of the terms and conditions hereof and approving and authorizing the Seller to consummate the Transactions contemplated hereby Free and Clear and containing a finding that Purchaser has, to the extent applicable, satisfied the requirements set forth in Section 363 of the Bankruptcy Code, including that the Purchaser has acted in “good faith” within the meaning of Section 363(m) of the Bankruptcy Code.

“Schedules” has the meaning set forth in ARTICLE 3.

“Seller” has the meaning set forth in the preamble.

“Seller Financial Statements” has the meaning set forth in Section 3.11.

“Seller Group” means the Seller and each of its Affiliates.

“Seller Group Members” has the meaning set forth in Section 10.18.

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“Seller Group Taxes” means any (i) Liability of the Seller Group for Taxes, (ii) any Liability for Asset Taxes attributable to any Pre-Closing Tax Period, and (iii) any Liability of Seller Group for the unpaid Taxes of any Person under Treasury Regulation §1.1502-6 (or any similar provision of state, local, or non-U.S. law), as a transferee or successor, by contract, or otherwise.

“Seller Permits” has the meaning set forth in Section 3.7.

“Solvent” when used with respect to any Person, means that, as of any date of determination, (a) the fair salable value (determined on a going concern basis) of its assets and property will, as of such date, exceed the amounts required to pay its debts as they become absolute and mature, as of such date, (b) such Person will have adequate capital to carry on its business and (c) such Person will be able to pay its debts as they become absolute and mature, in the ordinary course of business, taking into account the timing of and amounts of cash to be received by it and the timing of and amounts of cash to be payable on or in respect of its indebtedness.

“Straddle Period” means any taxable year or other taxable period beginning on or before and ending after the Closing Date.

“Tax” means any federal, state, local, or non-U.S. tax of any kind whatsoever (including any income tax, franchise tax, branch profits tax, capital gains tax, value-added tax, unclaimed property, escheat, sales tax, use tax, property tax, transfer tax, payroll tax, social security tax or withholding tax), or other tax of any kind or any charge of any kind in the nature of (or similar to) taxes and any related fine, penalty, interest, or addition to tax with respect thereto, in each case whether disputed or not.

“Tax Return” means any return (including any information return), report, statement, election, schedule, notice, form, or other document or information (whether in tangible, electronic or other form), including any amendments, schedules attachments, supplements, appendices and exhibits thereto, filed with or submitted to, or required to be filed with or submitted to, any Governmental Authority with respect to Taxes.

“Termination Fee” means a fee equal to three percent (3%) of the Base Price.

“Third Party” means any Person other than a party hereto or its Affiliates.

“Trademark” means, collectively, trademarks, service marks trade names, slogans, logos, trade dress or other similar source or origin identifiers (whether statutory or common law, whether registered or unregistered), together with all (a) registrations and applications for any of the foregoing, (b) extensions or renewals thereof, (c) goodwill (if any) connected with use thereof or symbolized thereby, and (d) rights and privileges arising under Contract or Applicable Law with respect to any of the foregoing.

“Transactions” means the transactions contemplated by this Agreement and the Related Documents.

“Transfer Taxes” has the meaning set forth in Section 2.10.

“Transferred Assets” has the meaning set forth in Section 2.1.

“Transferred Inventory” has the meaning set forth in Section 2.1(a).

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Notwithstanding any provision to the contrary contained in this Agreement or any of the other Related Documents, Purchaser acknowledges and agrees that all of the following are also Excluded Assets, and all right, title and interest in and to all Excluded Assets shall be retained by the Seller Group and shall remain the property of the Seller Group (and shall expressly be excluded from the sale, transfer, assignment and conveyance to Purchaser hereunder), and neither Purchaser nor any of its Affiliates shall have any interest therein: (x) all records and reports prepared or received by the Seller Group or any of their Affiliates in connection with the sale of the Business and the Transactions, including all analyses relating to the Business or Purchaser so prepared or received; and (y) all confidentiality agreements with prospective purchasers of the Business or any portion thereof and all bids and expressions of interest received from Third Parties with respect thereto.

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Any issue regarding the entitlement to the Deposit Escrow Amount shall be determined by the Bankruptcy Court, and Purchaser consents to the jurisdiction of the Bankruptcy Court for any issue related to this Agreement.

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Except as disclosed in a document herewith delivered by the Seller to Purchaser (the “Schedules”), the Seller hereby makes the representations and warranties contained in this ARTICLE 3 to Purchaser.

 

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Except as disclosed in a document herewith delivered by Purchaser to the Seller (the “Purchaser Schedules”), Purchaser hereby makes the representations and warranties contained in this ARTICLE 4 to the Seller.

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If to Purchaser:
Amylyx Pharmaceuticals, Inc.
43 Thorndike St,
Cambridge, MA 02141
Attn: Gina Mazzariello
Email: [*]

with a copy to (which will not constitute notice):
Ropes & Gray LLP
800 Boylston St,

Boston, MA 02199
Attn: Hannah England; Cristine Schwarzman
Email: [*]; [*]
 

If to the Seller:

Eiger BioPharmaceuticals, Inc.
2100 Ross Avenue
Dallas, Texas 75201
Attn: David Apelian, Chief Executive Officer
Email: [*]

 

with a copy to (which will not constitute notice):

Sidley Austin LLP
2021 McKinney Ave., Suite 2000
Dallas, TX 75201

Attention: Thomas R. Califano, William E. Curtin and Anne G. Wallice
Email: [*], [*], and [*]

 

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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed as of the date first written above.

		PURCHASER:
		AMYLYX PHARMACEUTICALS, INC.
		By:	/s/ Justin Klee
			Name: Justin Klee
			Title: Co-CEO

 

 

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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed as of the date first written above.

		SELLER:
		EIGER BIOPHARMACEUTICALS, INC.
		By:	/s/ Jim Vollins
			Name: James Vollins
			Title: General Counsel, Chief Compliance Officer & Corporate Secretary

 

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EXHIBIT A
Form of Bill of Sale and Assignment and Assumption Agreement

See attached.

EXHIBIT B
Form of Escrow Agreement

See attached.

EXHIBIT C
Form of Intellectual Property Assignment Agreement

See attached.

 

 

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