Exhibit 10.5


 


EXECUTION COPY


EXHIBIT D


 


VOTING AND SUPPORT AGREEMENT


 


THIS VOTING AND
SUPPORT AGREEMENT (as may be amended or modified from time to time, this “Agreement”) is made and entered
into as of November 12, 2018, by and among Avenue Therapeutics, Inc., a Delaware corporation (the “Company”),
the stockholders of the Company listed on Schedule A hereto (the “Stockholders” and each individually
a “Stockholder”), and InvaGen Pharmaceuticals Inc., a New York corporation (“Buyer”).


 


Capitalized terms used
but not defined in this Agreement shall have the respective meanings ascribed to them in the SPMA (as defined below). 


 


WHEREAS, Buyer,
Madison Pharmaceuticals Inc., a Delaware corporation and wholly owned subsidiary of Buyer (“Merger Sub”), and
the Company have entered into a Stock Purchase and Merger Agreement, dated as of the date hereof (the “SPMA”);


 


WHEREAS, Buyer,
the Company and the Stockholders are executing this Agreement contemporaneously with the execution of the SPMA;


 


WHEREAS, the
Stockholders own Common Shares, Class A Preferred Shares or other Company Securities (together with any other shares of capital
stock of the Company acquired (whether beneficially or of record) by the Stockholders after the date hereof and prior to the Expiration
Date (as defined below), including by reason of any share split, share dividend, reclassification, recapitalization, conversion
or other transaction, and including any shares of Common Shares or Class A Preferred Shares acquired by means of purchase, dividend
or distribution, or issued upon the exercise of any stock options to acquire Common Shares or Class A Preferred Shares or warrants
or the conversion of any convertible securities or otherwise, being collectively referred to herein as the “Securities”);


 


WHEREAS, obtaining
the Requisite Stockholder Approval is a condition to the consummation of the Transactions; and


 


WHEREAS, as
a condition to the willingness of the Company and Buyer to enter into the SPMA and as an inducement and in consideration therefor,
the Stockholders have agreed to enter into this Agreement.


 


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


 




    	



     


    




 


ARTICLE I


VOTING; GRANT AND APPOINTMENT OF PROXY



 


Section 1.1 Specific Voting
Agreement. From and after the Signing Date until the Expiration Date (as defined herein), the Stockholders irrevocably
and unconditionally hereby agree that at any meeting (whether annual or special and each adjourned or postponed meeting) of the
Company’s stockholders, however called, or in connection with any written consent of the Company’s stockholders (the
“Stockholders Meeting”), the Stockholders will (i) be present at such meeting, in person or represented
by proxy, or otherwise cause all of the Securities to be counted as present thereat for purposes of calculating a quorum and (ii) vote
or cause to be voted (including by proxy or written consent, if applicable) all of the Securities:


 


(a) in favor
of the Proposals (and, in the event that the Proposals are presented as more than one proposal, in favor of each proposal that
is part of the Proposals), and in favor of any other matter presented or proposed as to approval of the Transactions or any part
or aspect thereof or any other transactions or matters contemplated by the SPMA and the Ancillary Agreements, including but not
limited to, any stockholder vote required by Section 251 of the DGCL;


 


(b) in favor
of any proposal to adjourn or postpone the Stockholders Meeting to a later date if there are not sufficient votes for the Requisite
Stockholder Approval on the date on which the Stockholders Meeting is held;


 


(c) against
any Takeover Proposal, without regard to the terms of such Takeover Proposal, or any other transaction, proposal, agreement or
action made in opposition to adoption of the SPMA, the Ancillary Agreements or in competition or inconsistent with the Transactions
and the other transactions or matters contemplated by the SPMA or the Ancillary Agreements;


 


(d) against
any other action, agreement or transaction, that is intended, that could reasonably be expected, or the effect of which could reasonably
be expected, to materially impede, interfere with, delay, postpone, discourage or adversely affect the Transactions or any of the
other transactions contemplated by the SPMA or the Ancillary Agreements or the performance by the Stockholders of their obligations
under the SPMA or this Agreement, including: (i) any extraordinary corporate transaction, such as a merger, consolidation
or other business combination involving the Company (other than the Transactions); (ii) a sale, lease or transfer of any material
asset of the Company (other than the Transactions) or a reorganization, recapitalization or liquidation of the Company; (iii) an
election of new members to the board of directors of the Company, other than nominees to the board of directors of the Company
who are serving as directors of the Company on the date of this Agreement or as otherwise provided in the SPMA or the Stockholders
Agreement; (iv) any change in the present capitalization or dividend policy of the Company or any amendment or other change
to the Company’s certificate of incorporation or bylaws, except if approved in writing by Buyer; or (v) any other change
in the Company’s corporate structure or business, except if approved in writing by Buyer;


 


(e) against
any action, proposal, transaction or agreement that would reasonably be expected to result in a breach in any respect of any covenant,
representation or warranty or any other obligation or agreement of the Company contained in the SPMA, or of the Stockholders contained
in this Agreement;


 




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(f) in favor
of any other matter necessary or desirable to the consummation of the Transactions and any other transactions contemplated by the
SPMA or the Ancillary Agreements; and


 


(g) (i)
in favor of electing the Buyer Directors (as defined in the Stockholders Agreement) as members to the board of directors of the
Company and (ii) against any action, proposal, transaction or agreement that would constitute a breach by the Company of Section
4 of the Stockholders Agreement; and


 


(h) Clauses
(a)-(g) of this Section 1.1 are hereinafter referred to as the “Required Votes.”


 


Section 1.2 Grant of Irrevocable
Proxy; Appointment of Proxy. 


 


1.2.1 From and after the date hereof
until the Expiration Date, the Stockholders hereby irrevocably and unconditionally grant to, and appoint, Buyer and any designee
thereof as the Stockholders’ proxy and attorney-in-fact (with full power of substitution), for and in the name, place and
stead of the Stockholders, to attend any and all Stockholders Meetings convened in connection with the SPMA, the Ancillary Agreements
and the Proposals, to represent and otherwise act on behalf of the Stockholders in the same manner and with the same effect as
if such Stockholders were personally present at any such Stockholders Meeting, to vote or cause to be voted (including by proxy
or written consent, if applicable) the Securities in accordance with the Required Votes.


 


1.2.2 The Stockholders hereby represent
that any proxies heretofore given in respect of the Securities, if any, are revocable, and hereby revoke such proxies.


 


1.2.3 The Stockholders hereby affirm
that the irrevocable proxy set forth in this Section 1.2 is given in connection with the execution of the
SPMA and the Ancillary Agreements, and that such irrevocable proxy is given to secure the performance of the duties of the Stockholders
under this Agreement. The Stockholders hereby further affirm that the irrevocable proxy is coupled with an interest and, except
as set forth in this Section 1.2, is intended to be irrevocable. If for any reason the proxy granted herein is
not irrevocable, then the Stockholders agree, until the Expiration Date, to vote the Securities in accordance with the Required
Votes, unless instructed otherwise by Buyer in writing. The parties agree that the foregoing is a voting agreement.


 


Section 1.3 General Voting
Agreement. From and after the date hereof until the Expiration Date, the Stockholders irrevocably and unconditionally hereby
agree that at any Stockholders Meeting, the Stockholders will (i) be present at such meeting, in person or represented by
proxy, or otherwise cause all of the Securities to be counted as present thereat for purposes of calculating a quorum and (ii) vote
or cause to be voted (including by proxy or written consent, if applicable) all of the Securities in the same manner as Buyer shall
vote its Common Shares (other than with respect to a proposal that would (a) adversely treat the holders of the Class A Preferred
Shares as compared to the holders of Common Shares or (b) amend the terms of the Class A Preferred Shares in the certificate of
incorporation of the Company (except in the case of clause (a) or (b) for any of the Transactions or any of the other transactions
contemplated by the SPMA or the Ancillary Agreements)).


 




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Section 1.4 Restrictions
on Transfers. The Stockholders hereby agree that, from the date hereof until the earlier of (a) the consummation of
the Merger and (b) the termination of the SPMA pursuant to and in compliance with the terms therein , they shall not, directly
or indirectly, issue, buy, sell or otherwise subject to a security interest, pledge, hypothecation, mortgage or lien (or enter
into any hedging arrangement or derivative transaction with respect to) any Securities (or any other shares of capital stock of
the Company), nor shall they register, request registration of or take any action to begin the process of registering Securities
for sale pursuant to a registration statement filed with the SEC.


 


Section 1.5 Inconsistent
Agreements. The Stockholders hereby covenant and agree that, except for this Agreement, they (a) shall not, at any
time while this Agreement remains in effect, enter into any voting agreement or voting trust with respect to the Securities or
otherwise subject the Securities to any arrangement with respect to the voting of the Securities other than agreements entered
into with Buyer, and (b) shall not grant at any time while this Agreement remains in effect a proxy, consent or power of attorney
with respect to the Securities.


 


Section 1.6 Board Action.
The Stockholders hereby agree to cause any representatives of theirs on the board of the directors of the Company to vote on board
actions of the Company in a manner consistent with this Agreement and the Ancillary Agreements.


 


Section 1.7 Miscellaneous.
Immediately prior to the First Stage Closing, Fortress shall deliver to Buyer evidence of the resignation of three members of the
board of directors of the Company to accommodate the appointment of the Buyer Directors (as defined in the Stockholders Agreement)
effective as of the First Stage Closing. Immediately prior to the Second Stage Closing, Fortress shall deliver to Buyer (a) the
General Release, duly executed by Fortress and (b) the resignation of each member of the board of directors of the Company designated
by or Affiliated with Fortress.


 


ARTICLE II


NO SOLICITATION


 


Section 2.1 Restricted
Activities. The Stockholders shall not (and shall cause their Affiliates not to), and shall not authorize or permit their
Representatives to, and shall instruct each such Representative not to, directly or indirectly, (a) initiate, solicit or knowingly
encourage or facilitate the submission of any Takeover Proposal or the making of any proposal that could reasonably be expected
to lead to any Takeover Proposal, (b) conduct or engage in any discussions or negotiations regarding, or that would reasonably
be expected to lead to, any Takeover Proposal, (c) disclose any non-public information relating to the Company to, afford access
to the business, properties, personnel, assets, books, or records of the Company to, or knowingly assist, participate in, facilitate,
or encourage any effort by, any Person (other than Buyer and its Subsidiaries) in connection with or in response to or in circumstances
that would reasonably be expected to lead to, any Takeover Proposal, (d) take any action to make the provisions of any “fair
price,” “moratorium,” “control share acquisition,” “business combination” or other similar
anti-takeover statute, regulation, restriction or provision of the DGCL, the laws of any other jurisdiction or any other Legal
Requirement, the certificate of incorporation, bylaws, or other organizational or constitutive document or governing instruments
of the Company, inapplicable to any Person (other than Buyer and its Subsidiaries), or to any transactions constituting or contemplated
by a Takeover Proposal, or (e) resolve or agree to do any of the foregoing (the activities specified in clauses (a) through
(e) being hereinafter referred to as the “Restricted Activities”). The Stockholders shall immediately cease
and terminate any and all existing Restricted Activities.


 




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Section 2.2 Notification.
The Stockholders shall promptly (and in any event no later than 24 hours) notify Buyer of any Takeover Proposal, any inquiry that
could reasonably be expected to lead to a Takeover Proposal, or any request for non-public information relating to the Company
or for access to the business, properties, assets, books, or records of the Company by any third party. In such notice, the Stockholders
shall identify the Person making, and details of the material terms and conditions of (along with the latest draft of, and all
other related documents with respect to), any such Takeover Proposal, indication or request. The Stockholders shall keep Buyer
reasonably informed on a prompt and timely basis of the status and material details of any such Takeover Proposal and with respect
to any material change to the terms of any such Takeover Proposal within 24 hours of any such material change.


 


ARTICLE III


REPRESENTATIONS, WARRANTIES AND COVENANTS


OF THE STOCKHOLDERS


 


Section 3.1 Representations
and Warranties. Each of the Stockholders represents and warrants to Buyer as follows:


 


(a)          With
respect to any of the Stockholders that is a legal entity: (i) it is a legal entity duly incorporated or organized, as applicable,
validly existing and in good standing under the laws of its place of incorporation or organization, (ii) it is duly licensed
and qualified to conduct its business in each jurisdiction where the nature of the properties owned, leased or operated by it and
the business transacted by it requires such licensing or qualification, except where any such failures to be so qualified or licensed
have not had, or are not reasonably likely to have, a material adverse effect on the ability of the Stockholder to perform its
obligations under or to consummate the transactions contemplated by this Agreement, and (iii) it holds all necessary corporate
power and authority to own, license and operate its assets and properties, to conduct its business, to enter into this Agreement,
to perform its obligations hereunder and to consummate the transactions contemplated hereby.


 


(b)          The
execution and delivery of this Agreement by the Stockholder and the performance by the Stockholder of its obligations hereunder
have been duly authorized by all requisite action on the part of the Stockholder, and no other actions or proceedings on the part
of the Stockholder are necessary to authorize the execution and delivery of this Agreement.


 




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(c)        This
Agreement has been duly executed and delivered by the Stockholder and
constitutes the valid and binding agreement of the Stockholder,
enforceable against the Stockholder in accordance with its terms.


 


(d)          The
execution or delivery by the Stockholder of this Agreement or the performance by the Stockholder of its obligations under this
Agreement will not (i) result in any breach of any provision of the Stockholder’s certificate of incorporation or bylaws
(if applicable), (ii) result in any breach of, require (with or without notice or lapse of time or both) any payment, consent or
notice or constitute a default (or give rise to any right of purchase, termination, amendment, acceleration or cancellation) under
any Contract or order or judgment to which the Stockholder is a party or by which it or its assets are bound, (iii) result in the
creation of an Encumbrance, or (iv) violate any applicable Legal Requirement, other than, in the case of clauses (ii) through (iv),
such breaches, defaults or violations that have not had, or are not reasonably likely to have, a material adverse effect on the
ability of the Stockholder to perform its obligations under or to consummate the transactions contemplated by this Agreement.


 


(e)          The
Stockholder owns, beneficially and of record, or controls that number of shares of Common Shares, Class A Preferred Shares or other
Securities as shown on Schedule A hereto.


 


(f)          Except
for such transfer restrictions of general applicability as may be provided under the Securities Act of 1933, as amended, and the
“blue sky” laws of the various states of the United States, the Stockholder owns, beneficially and of record, or controls
all of the Securities free and clear of any proxy, voting restriction, adverse claim or other lien (other than any restrictions
created by this Agreement) and have sole voting power with respect to the Securities and sole power of disposition with respect
to all of the Securities, with no restrictions on the Stockholder’s rights of voting or disposition pertaining thereto, and
no person other than the Stockholder has any right to direct or approve the voting or disposition of any of the Securities.


 


Section 3.2 Covenants.
The Stockholders hereby:


 


(a) irrevocably
waive, and agree not to exercise, any rights of appraisal or rights of dissent from the Merger that the Stockholders may have with
respect to the Securities;


 


(b) agree
to promptly notify the Company and Buyer of the number of any new Securities acquired by the Stockholders after the date hereof
and prior to the Expiration Date. Any such Securities shall be subject to the terms of this Agreement as though owned by the Stockholders
on the date hereof;


 


(c) agree
to permit the Company to publish and disclose in the Proxy Statement the Stockholders’ identities and ownership of the Securities
and the nature of the Stockholders’ commitments, arrangements and understandings under this Agreement; and


 




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(d) shall
and do authorize Buyer or its counsel to notify the Company’s transfer agent that there is a stop transfer order with respect
to all of the Securities (and that this Agreement places limits on the voting and transfer of such shares), provided that
Buyer or its counsel further notifies the Company’s transfer agent to lift and vacate the stop transfer order with respect
to the Securities following the Expiration Date.


 


ARTICLE IV


TERMINATION 


 


For purposes of this
Agreement, “Expiration Date” means the earlier of (a) the consummation of the Merger and (b) (i) in
the case of the matters covered by Section 1.1(a) through (f), Section 1.1(h) to the extent that it relates to Section
1.1(a) through (f), Section 1.2 to the extent that it relates to Section 1.1(a) through (f), Section
1.3, Section 1.4, Section 1.5 to the extent that it relates to Section 1.1(a) through (f), Section
1.6 to the extent that it relates to Section 1.1(a) through (f), Section 1.7, Article II, Section 3.2(a),
Section 3.2(b) to the extent that it relates to Section 1.1(a) through (f), Section 3.2(c) to the extent
that it relates to Section 1.1(a) through (f) and Section 3.2(d), the termination of the SPMA pursuant to and in
compliance with the terms therein and (ii) in the case of the matters covered by Section 1.1(g), Section 1.1(h) to the extent
that it relates to Section 1.1(g), Section 1.2 to the extent that it relates to Section 1.1(g), Section
1.5 to the extent that it relates to Section 1.1(g), Section 1.6 to the extent that it relates to Section
1.1(g), Section 3.2(b) to the extent that it relates to Section 1.1(g) and Section 3.2(c) to the extent
that it relates to Section 1.1(g), the termination of Buyer’s rights under Section 2 of the Stockholders Agreement.
This Agreement shall terminate and be of no further force or effect on the earlier of (a) the consummation of the Merger and
(b) the termination of Buyer’s rights under Section 2 of the Stockholders Agreement; provided that any breach hereof
prior to such termination shall survive such termination. Notwithstanding the preceding sentence, this Article IV and Article
V shall survive any termination of this Agreement.


 


ARTICLE V


MISCELLANEOUS


 


Section 5.1 Entire Agreement.
This Agreement, together with the Schedules and all other documents referred to herein, constitutes the entire agreement between
the parties hereto with respect to the subject matter of this Agreement and supersedes any and all prior agreements, negotiations,
correspondence, undertakings, understandings and communications of the parties hereto with respect to the subject matter of this
Agreement, with the exception of the Confidentiality Agreement, to which Section 5.8 applies. Nothing contained in this
Agreement shall be deemed or construed as creating a joint venture or partnership between any of the parties hereto.


 


Section 5.2 Transaction
Costs. Except as otherwise provided herein, the parties to this Agreement will pay their own costs and expenses (including
legal, accounting and other fees) relating to this Agreement.


 








Section 5.3 Modifications.
Any amendment or modification to this Agreement, including this undertaking itself, shall only be valid if effected by an instrument
or instruments in writing and shall be effective against each of the parties hereto that has signed such instrument or instruments.
The parties agree that they jointly negotiated and prepared this Agreement and that this Agreement will not be construed against
any party on the grounds that such party prepared or drafted the same.


 



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Section 5.4 Notices.
Notices will be deemed to have been received (a) upon receipt of a registered letter, (b) three Business Days following proper
deposit with an internationally recognized express overnight delivery service, or (c) in the case of transmission by email, as
of the date so transmitted (or if so transmitted after normal business hours at the place of the recipient, on the Business Day
following such transmission):


  


If to the Company:


 


Avenue Therapeutics, Inc.


2 Gansevoort Street, 9th Floor


New York, NY 10014


Attn: Dr. Lucy Lu, M.D.


Email: llu@avenuetx.com


 


With a copy (which shall not constitute notice) to:


 


Alston & Bird LLP


90 Park Avenue, 12th Floor


New York, NY 10016


Attn: Mark McElreath


Email: mark.mcelreath@alston.com


 


If to Buyer:


 


InvaGen Pharmaceuticals Inc.


Site B, 7 Oser Ave.


Hauppauge, NY 11788


c/o


A.S. Kumar, Esq.


Global General Counsel


Cipla Ltd.


Cipla House, Peninsula Business Park,


Ganapatrao Kadam Marg, Lower Parel West,


Mumbai, Maharashtra 400013, India


Email: as.kumar@cipla.com and cosecretary@cipla.com


 




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With a copy (which shall not constitute notice) to:


 


InvaGen Pharmaceuticals Inc.


Site B, 7 Oser Ave.


Hauppauge, NY 11788


c/o


Nishant Saxena


Global Chief Strategy Officer


Cipla Ltd.


Cipla House, Peninsula Business Park,


Ganapatrao Kadam Marg, Lower Parel West,


Mumbai, Maharashtra 400013, India


Email: nishant.saxena@cipla.com


 


With a copy (which shall not constitute notice) to:


 


Hughes Hubbard & Reed LLP


One Battery Park Plaza


New York, NY 10004-1482


Attn: Kenneth A. Lefkowitz


Email: ken.lefkowitz@hugheshubbard.com


 


If to Fortress:


 


Fortress Biotech, Inc.


2 Gansevoort Street, 9th Floor


New York, NY 10014


Attn: Lindsay Rosenwald, M.D.


Email: lrosenwald@fortressbiotech.com


 


If to Dr. Lucy Lu:


 


Avenue Therapeutics, Inc.


2 Gansevoort Street, 9th Floor


New York, NY 10014


Attn: Dr. Lucy Lu


Email: llu@avenuetx.com


 


or to such other address as may be hereafter
communicated in writing by the parties in a notice given in accordance with this Section 5.4, which address shall then apply
to the respective notice provisions of the SPMA and all other Ancillary Agreements.


 


Section 5.5 Public Announcements.
Except as required by Legal Requirements or by the requirements of any stock exchange on which the securities of a party hereto
or any of its Affiliates are listed, no party to this Agreement will make, or cause to be made, any press release or public announcement
in respect of this Agreement or otherwise communicate with any news media with respect to the foregoing without prior notification
to the other parties, and the parties to this Agreement will consult with each other and cooperate as to the form, timing and contents
of any such press release, public announcement or disclosure.


 




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Section 5.6 Severability.
Each provision of this Agreement will be interpreted in such manner as to be effective and valid under applicable Legal Requirements,
but if any provision of this Agreement is found to be unenforceable or invalid under applicable Legal Requirements, such provision
will be ineffective only to the extent of such unenforceability or invalidity, and the parties will negotiate in good faith to
modify this Agreement so that the unenforceable or invalid provision is replaced by such valid and enforceable provision which
the parties consider, in good faith, to match as closely as possible the invalid or unenforceable provision and to achieve the
same or a similar economic effect and to give effect to the parties’ original intent. The remaining provisions of this Agreement
will continue to be binding and in full force and effect.


 


Section 5.7 Assignment.
No party hereto may assign, in whole or in part, or delegate all or any part of its rights, interests or obligations under this
Agreement without the prior written consent of the other party. Any assignment or delegation made without such consent will be
void. Notwithstanding the foregoing, Buyer shall be entitled to (a) assign its rights under this Agreement to any one of its Affiliates,
and (b) assign any or all of its rights and obligations under this Agreement (in whole or in part) as collateral security in a
financing transaction.


 


Section 5.8 Confidentiality
Agreement. The terms of the Confidentiality Agreement are hereby incorporated herein by reference and will continue in
full force and effect until expiration or termination in accordance with the terms therein.


 


Section 5.9 Governing Law.
This Agreement and any claims or causes of action pursuant to it will be governed by and construed in accordance with the laws
of the State of Delaware, without regard for its principles of conflict of laws.


 


Section 5.10 Specific Performance.
Each party acknowledges and agrees that the other party would be irreparably damaged if the provisions of this Agreement are not
performed in accordance with their terms and that any breach of this Agreement and the non-consummation of the transactions contemplated
hereby by either party could not be adequately compensated in all cases by monetary damages alone. Accordingly, in addition to
any remedy to which such other party may be entitled under Section 5.11, provisional measures and injunctive relief necessary
to protect the possibility of each party to seek specific performance from the other from the tribunal referred to in Section
5.11 can be sought from any court of competent jurisdiction. Each of the parties hereto (i) agrees that it shall not oppose
the granting of any such relief and (ii) hereby irrevocably waives any requirement for the security or posting of any bond in connection
with any such relief (it is understood that clause (i) of this sentence is not intended to, and shall not, preclude any party hereto
from litigating on the merits the substantive claim to which such remedy relates).


 




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Section 5.11 Submission
to Jurisdiction. Each of the parties hereto irrevocably agrees that any Proceeding with respect to this Agreement and
the rights and obligations arising hereunder, or for recognition and enforcement of any judgment in respect of this Agreement and
the rights and obligations arising hereunder brought by any other party hereto or its successors or assigns, shall be brought and
determined exclusively in the Court of Chancery of the State of Delaware, or in the event (but only in the event) that such court
does not have subject matter jurisdiction over such action or proceeding, in the federal courts sitting in the State of Delaware.
Each of the parties hereto agrees that mailing of process or other papers in connection with any such action or proceeding in the
manner provided in Section 5.4  or in such other manner as may be permitted by applicable Legal Requirements,
will be valid and sufficient service thereof. Each of the parties hereto hereby irrevocably submits with regard to any such action
or proceeding for itself and in respect of its property, generally and unconditionally, to the personal jurisdiction of the aforesaid
courts and agrees that it will not bring any action relating to this Agreement or any of the transactions contemplated
by this Agreement in any court or tribunal other than the aforesaid courts. Each of the parties hereto hereby irrevocably
waives, and agrees not to assert, by way of motion, as a defense, counterclaim, or otherwise, in any action or proceeding with
respect to this Agreement and the rights and obligations arising hereunder, or for recognition and enforcement of any
judgment in respect of this Agreement and the rights and obligations arising hereunder: (a) any claim that it is not
personally subject to the jurisdiction of the above named courts for any reason other than the failure to serve process in accordance
with this Section 5.11; (b) any claim that it or its property is exempt or immune from jurisdiction of any such court
or from any legal process commenced in such courts (whether through service of notice, attachment prior to judgment, attachment
in aid of execution of judgment, execution of judgment or otherwise); and (c) to the fullest extent permitted by the applicable
Legal Requirements, any claim that (i) the suit, action or proceeding in such court is brought in an inconvenient forum, (ii) the
venue of such suit, action or proceeding is improper, or (iii) this Agreement, or the subject matter hereof, may not be enforced
in or by such courts.


 


Section 5.12 Waiver of
Jury Trial. EACH PARTY ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY WHICH MAY ARISE UNDER THIS AGREEMENT IS LIKELY
TO INVOLVE COMPLICATED AND DIFFICULT ISSUES AND, THEREFORE, EACH SUCH PARTY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT IT
MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LEGAL ACTION ARISING OUT OF OR RELATING TO THIS AGREEMENT or
the transactions contemplated hereby. EACH PARTY TO THIS AGREEMENT CERTIFIES AND ACKNOWLEDGES THAT: (A) NO REPRESENTATIVE
OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT SEEK TO ENFORCE THE FOREGOING WAIVER
IN THE EVENT OF A LEGAL ACTION; (B) SUCH PARTY HAS CONSIDERED THE IMPLICATIONS OF THIS WAIVER; (C) SUCH PARTY MAKES THIS WAIVER
VOLUNTARILY; AND (D) SUCH PARTY HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND
CERTIFICATIONS IN THIS SECTION 5.12.


 


Section 5.13 Waiver.
Any term or condition of this Agreement may be waived at any time by the party that is entitled to the benefit thereof, but no
such waiver shall be effective unless set forth in a written instrument duly executed by or on behalf of the party waiving such
term or condition, and no waiver by any party of any default, misrepresentation, or breach of warranty or covenant hereunder, shall
be deemed to extend to any prior or subsequent default, misrepresentation, or breach of warranty, covenant or agreement hereunder
or affect in any way any rights arising by virtue of any such prior or subsequent occurrence. No failure or delay of any party
in exercising any right or remedy hereunder shall operate as a waiver thereof, and no waiver by any party of any term or condition
of this Agreement, in any one or more instances, shall be deemed to be or construed as a waiver of the same or any other term or
condition of this Agreement on any future occasion.


 




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Section 5.14 Counterparts;
Facsimile Signature. This Agreement may be executed in one (1) or more counterparts, by original or facsimile (or other
such electronically transmitted) signature, each of which will be deemed an original, but all of which will constitute one and
the same instrument. Any party executing this Agreement by facsimile (or other such electronically transmitted) signature shall,
upon request from another party hereto, promptly deliver to the requesting party an original counterpart of such signature.


 


Section 5.15 Rights Cumulative.
All rights and remedies of each of the parties under this Agreement will be cumulative, and the exercise of one or more rights
or remedies will not preclude the exercise of any other right or remedy available under this Agreement or applicable Legal Requirements.


 


Section 5.16 Interpretation.
(a) The words “hereof”, “herein”, and “hereunder” and words of similar import, when used in
this Agreement, shall refer to this Agreement as a whole and not to any particular provision of this Agreement; (b) the words
“date hereof,” when used in this Agreement, shall refer to the date set forth in the Preamble; (c) the terms defined
in the singular have a comparable meaning when used in the plural, and vice versa; (d) the terms defined in the present tense
have a comparable meaning when used in the past tense, and vice versa; (e) any references herein to a specific Section or
Article shall refer, respectively, to Sections or Articles of this Agreement; (f) wherever the word “include”,
“includes”, or “including” is used in this Agreement, it shall be deemed to be followed by the words “without
limitation”; (g) references herein to any gender includes each other gender; (h) the word “or” shall
not be exclusive; (i) the headings herein are for convenience of reference only, do not constitute part of this Agreement
and shall not be deemed to limit or otherwise affect any of the provisions hereof; (j) any references herein to any Governmental
Authority shall be deemed to also be a reference to any successor Governmental Authority thereto; and (k) the parties hereto
have participated jointly in the negotiation and drafting of this Agreement and, in the event that an ambiguity or question of
intent or interpretation arises, this Agreement shall be construed as jointly drafted by the parties hereto and no presumption
or burden of proof shall arise favoring or disfavoring any party by virtue of the authorship of any provision of this Agreement.


 


[Signature Pages Follow]


 




    	12



     


    

 


IN WITNESS WHEREOF,
the parties hereto have duly executed and delivered this Agreement as of the date and year first written above.


 





	 	COMPANY:
	 	 
	 	Avenue Therapeutics, Inc.
	 	 
	 	By: 	/s/ Lucy Lu
	 		Name: Lucy Lu
	 		Title: CEO
	 	 
	 	BUYER:
	 	 
	 	InvaGen Pharmaceuticals Inc.
	 	 
	 	By: 	/s/ Deepak Agarwal
			Name: Deepak Agarwal
			Title: CFO
	 	 
	 	STOCKHOLDERS:
	 	 
	 	FORTRESS BIOTECH, INC.
	 	 
	 	By: 	/s/ Lindsay A. Rosenwald
	 		Name: Lindsay A. Rosenwald
	 		Title: President and CEO
	 	 
	 	/s/ Lucy Lu
	 	Lucy Lu


 


[Signature Page to Voting and Support
Agreement]





 




    	



     


    

 


Schedule A 


 


Stockholder Ownership


 


	Name	 	Common 

Shares	 	 	Class A 

Preferred 

Shares	 	 	Restricted Stock 

Issuances	 	 	Restricted Stock 

Units	 	 	Total	 
	Fortress Biotech, Inc.	 	 	3,590,096	 	 	 	250,000	 	 	 	–	 	 	 	–	 	 	 	3,840,096	 
	Lucy Lu	 	 	175,001	 	 	 	–	 	 	 	158,332	 	 	 	465,000	 	 	 	798,333	 



 


[Schedule A to
Voting and Support Agreement]