Exhibit 10.33


 


CREDIT FACILITY AGREEMENT


 


CREDIT FACILITY AGREEMENT
(this “Agreement”), dated as of September 14, 2016, is made by and among FORTRESS BIOTECH, INC., a Delaware
corporation (the “Borrower”), and each of OPUS POINT HEALTHCARE INNOVATIONS FUND, LP (“Opus”)
and any other lenders listed on the signature pages hereto (Opus and any other lenders, together with their successors and permitted
assigns, the “Lenders” and, together with the Borrower, the “Parties”).


 


W I T N E S S E T H:


 


WHEREAS, the Borrower wishes to borrow from
the Lenders up to a maximum of twenty- five million Dollars ($25,000,000) for the purpose described in Section 2.1; and


 


WHEREAS, the Lenders desire to make loans
to the Borrower for such purpose.


 


NOW, THEREFORE, in
consideration of the mutual agreements set forth herein, the Parties agree as follows:


 


ARTICLE 1


 


DEFINITIONS


 


Section 1.1 General
Definitions. Wherever used in this Agreement, or the Exhibits attached hereto, unless the context otherwise requires, the following
terms have the following meanings:


 


“1933 Act” has the meaning
set forth in Section 3.3(d).


 


“1934 Act” has the meaning
set forth in Section 3.3(d).


 


“Accrued Interest Amount”
has the meaning set forth in Section 2.7.


 


“Affiliate”
means any Person or entity that, directly or indirectly through one or more intermediaries, owns more than 25% of the transferable
ownership of a Person, controls or is controlled by or is under common control with a Person, as such terms are used in and construed
under Rule 144 under the Securities Act. With respect to a Lender, any investment fund or managed account that is managed or advised
on a discretionary basis by the same investment manager as such Lender will be deemed to be an Affiliate of such Lender. As used
in this definition of “Affiliate,” the term “control” means the possession, directly or indirectly, of
the power to direct or cause the direction of the management and policies of a Person, whether through ownership of voting securities
or partnership or other ownership interest, by contract, or otherwise.


 


“Agreement Date” means
the date of this Agreement.


 


“Applicable Laws” means
all statutes, rules and regulations of Governmental Authorities in the United States or elsewhere applicable to the Borrower.


 


“Authorizations” has
the meaning set forth in Section 3.1(m).


 


“Business Day” means
a day on which banks are open for business in The City of New York.


 




     


     


    

 


“Change of
Control” means (a) any Person becomes the beneficial owner, directly or indirectly, of 50% or more of the outstanding
Equity Interests of the Borrower; or (b) individuals who constitute the Continuing Directors cease for any reason to constitute
at least a majority of the board of directors of the Borrower.


 


“Code”
means the Internal Revenue Code of 1986, as amended, and any Treasury Regulations promulgated thereunder.


 


“Commitment”
means the commitment of a Lender to make or otherwise fund a Loan and “Commitments” means such commitments of
all Lenders in the aggregate. The amount of each Lender’s Commitment is set forth on the signature page hereto, subject to
any adjustment or reduction pursuant to the terms and conditions hereof. The aggregate amount of the Commitments as of the Agreement
Date is $25,000,000.


 


“Commitment Period”
means the period from the Agreement Date to September 1, 2017.


 


“Commitment Warrants”
has the meaning set forth in Section 2.9(a).


 


“Common Stock” means
the common stock, par value $0.001 per share, of the Borrower.


 


“Continuing Directors”
means (i) the directors of the Borrower on the Agreement Date; and (ii) any other director, if, in each case, such other director’s
nomination for election to the board of directors of the Borrower is recommended by at least a majority of the then-serving directors
of the Borrower.


 


“Default”
means any event which, at the giving of notice, lapse of time or fulfillment of any other applicable condition (or any combination
of the foregoing), would constitute an Event of Default.


 


“Defaulting Lender” has
the meaning set forth in Section 2.2.


 


“Disbursement”, “Disbursement
Date”, and “Disbursement Request” have the meanings given to them in Section 2.2.


 


“Dollars” and the “$”
sign mean the lawful currency of the United States of America.


 


“Equity Interests”
means, with respect to any Person, all of the shares, interests, participations and other equivalents (however designated) of capital
stock of (or other ownership or profit interests in) such Person, all of the warrants, options or other rights for the purchase
or acquisition from such Person of shares of capital stock of (or other ownership or profit interests in) such Person, all of the
securities convertible into or exchangeable for shares of capital stock of (or other ownership or profit interests in) such Person
or warrants, rights or options for the purchase or acquisition from such Person of such shares (or such other interests), and all
of the other ownership or profit interests in such Person (including partnership, member or trust interests therein), whether voting
or nonvoting, and whether or not such shares, warrants, options, rights or other interests are outstanding on any date of determination.


 


“Event of Default” has
the meaning given to it in Section 5.3.


 


“Exchange
Act” means the Securities Exchange Act of 1934, as amended, including the rules and regulations promulgated thereunder.


 




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“Excluded
Taxes” means with respect to any Lender, (a) income or franchise taxes imposed by the United States, or by the jurisdiction
(or any political subdivision thereof) under the laws of which such Lender is organized or incorporated or in which its principal
office is located, or in which the applicable lending office of such Lender is located, or as a result of a present or former
connection between such Lender and the jurisdiction (or any political subdivision thereof) imposing such tax (other than a connection
arising from such Lender’s having a security interest under, having been a party to, having enforced or having engaged in
any other transaction pursuant to this Agreement or any other Loan Document), (b) any branch profits taxes imposed by the United
States, (c) any United States withholding Tax imposed on amounts payable to such Lender under a law in effect on the date such
Lender became a party to this Agreement, except to the extent that such Lender is a direct or indirect assignee of a Lender that
was entitled, immediately prior to such assignment, to receive payments under Section 2.5 on account of such Tax, (d) any
United States withholding Tax imposed on amounts payable to such Lender, or (e) any United States withholding Tax imposed on amounts
payable to such Lender under FATCA.


 


“FATCA”
means Sections 1471 through 1474 of the Code, any regulations or official interpretations thereof, any agreements entered into
pursuant to Section 1471(b)(1) of the Code and any fiscal or regulatory legislation, rules or practices adopted pursuant to any
intergovernmental agreement entered into in connection with the foregoing.


 


“Funding Warrants” has
the meaning set forth in Section 2.9(b).


 


“GAAP”
means generally accepted accounting principles consistently applied as set forth in the opinions and pronouncements of the Accounting
Principles Board and the American Institute of Certified Public Accountants and statements and pronouncements of the Financial
Accounting Standards Board (or agencies with similar functions of comparable stature and authority within the accounting profession).


 


“Governmental
Authority” means any government, quasi-governmental agency, governmental department, ministry, cabinet, commission, board,
bureau, agency, court, tribunal, regulatory authority, instrumentality, judicial, legislative, fiscal, or administrative or public
body or entity, whether domestic or foreign, federal, state or local, having jurisdiction over the matter or matters and Person
or Persons in question.


 


“Indemnified Person”
has the meaning set forth in Section 6.11(a).


 


“Indemnified Taxes” means
all Taxes including Other Taxes, other than Excluded Taxes.


 


“Indemnity” has the meaning
set forth in Section 6.11(a).


 


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


 


“Interest Rate” means
12.00% interest per annum.


 


“IRS” means the United
States Internal Revenue Service.


 


“Lender”
has the meaning given to it in the preamble of this Agreement. A third party may become an additional “Lender” (and
thereby become subject to the all the provisions hereof applicable to Lenders) upon the mutual consent of the Borrower and the
Required Lenders, which mutual consent shall specify the Commitment Amount of any such additional Lender.


 




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“Lien”
means any lien, pledge, preferential arrangement, mortgage, security interest, deed of trust, charge, assignment, hypothecation,
title retention, or other encumbrance on or with respect to property or interest in property having the practical effect of constituting
a security interest, in each case with respect to the payment of any obligation with, or from the proceeds of, any asset or revenue
of any kind.


 


“Loan Documents”
means this Agreement, the Notes, the Warrants, the Pledge and Security Agreement and any other document or instrument delivered
in connection with any of the foregoing and dated as of the Agreement Date or subsequent thereto, whether or not specifically mentioned
herein or therein.


 


“Loans”
means the loans made available by the Lenders to the Borrower pursuant to Section 2.2 in the maximum aggregate amount of
the Commitments or, as the context may require, the principal amount thereof from time to time outstanding.


 


“Loan Securities” has
the meaning set forth in Section 3.3(d).


 


“Loss” has the meaning
set forth in Section 6.11(a).


 


“Material
Adverse Effect” means a material adverse effect on (a) the business, operations, financial condition or assets of the
Borrower, taken as a whole, (b) the validity or enforceability of any provision of any Loan Document, (c) the ability of the Borrower
to timely perform the Obligations or (d) the rights and remedies of the Lenders under any Loan Document; provided, however, that
none of the following shall be deemed either alone or in combination to constitute, and none of the following shall be taken into
account in determining whether there has been or would be, a Material Adverse Effect: (A) any adverse effect that results directly
or indirectly from general economic, business, financial or market conditions; and (B) any adverse effect arising directly or indirectly
from or otherwise relating to any of the industries or industry sectors in which the Borrower operates.


 


“Maturity Date” has the
meaning set forth in Section 2.3(a).


 


“Necessary Documents”
has the meaning set forth in Section 3.1(i).


 


“Notes”
means the Convertible Secured Promissory Notes issued to the Lenders evidencing the Loans substantially in the form attached hereto
as Exhibit A. The Notes shall be senior to any current and future indebtedness of the Borrower, except for the secured indebtedness
currently owing to the Israel Discount Bank (“IDB”) (which is currently secured by cash) pursuant to: (i) that
certain Assignment and Pledge of Money Market Account, dated as of February 2014, executed by the Borrower in favor of IDB; (ii)
that certain Assignment and Pledge of Time Deposit, dated as of July 31, 2015, executed by the Borrower in favor of IDB; and (iii)
any other agreement, certificate or other document executed in connection with the foregoing clauses (i) and (ii); in each case
(i), (ii) and (iii), as such document may be amended from time to time in accordance with the terms thereof.


 


“Obligations”
means all obligations (monetary or otherwise) of the Borrower owing to the Lenders and arising under or in connection with the
Loan Documents


 




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“Organizational
Documents” means the Certificate of Incorporation, Bylaws, or similar documents, each as amended to date, of the Borrower.


 


“Other Taxes”
means any and all present or future stamp or documentary taxes or any other excise or property taxes, duties, other charges or
similar levies, and all liabilities with respect thereto, together with any interest, additions to tax or penalties applicable
thereto (including by reason of any delay in payment) arising from any payment made hereunder or from the execution, delivery,
registration or enforcement of, or otherwise with respect to, any Loan Document, except any such Taxes that are imposed with respect
to an assignment (other than an assignment made in connection with the exercise of remedies following an Event of Default).


 


“Permitted
Liens” of the Borrower means (a) Liens and security interests in favor of the Lenders; (b) Liens for taxes being contested
in good faith by appropriate proceedings for which adequate reserves determined in accordance with GAAP have been established (and
as to which the property subject to any such Lien is not yet subject to foreclosure, sale or loss on account thereof); (c) Liens
existing on the Agreement Date; (d) Liens incidental to the conduct of business or the ownership of properties and assets (including
Liens in connection with worker’s compensation, unemployment insurance and other like laws (excluding Liens imposed by ERISA
or the substantial equivalent under foreign law (including any statutory Liens for profit sharing plans imposed by foreign law)),
warehousemen’s mechanic’s materialmen’s and attorneys’ Liens, and statutory or common law landlords’
Liens (or the substantial equivalent under foreign law)) and Liens and pledges or deposits to secure the performance of bids, tenders
or trade contracts, or to secure statutory obligations, surety or appeal bonds or other Liens of like general nature incurred in
the ordinary course of business and not in connection with the borrowing of money, provided, in each case, that the obligation
secured is not more than 30 days overdue or, if so overdue, is being contested in good faith by appropriate actions or proceedings
and that adequate reserves have been established in accordance with GAAP; (e) Liens of or resulting from any judgment or award
not constituting an Event of Default; (f) minor survey exceptions or minor encumbrances, easements or reservations, or rights of
others for rights-of-way, utilities and other similar purposes, or zoning or other restrictions as to the use of real properties,
which are necessary for the conduct of the activities of the Borrower or which customarily exist on properties of companies engaged
in similar activities and similarly situated and which do not in any event materially impair their use in the operation of the
business of the Borrower; (g) Liens or set-off rights arising by contract in the ordinary course of business or by law and in connection
with cash management and banking arrangements entered into in the ordinary course of business; and (h) Liens placed upon equipment
or component materials (and the proceeds thereof) of a Borrower for short-term trade payable arrangements with vendors of such
Borrower to secure all or a portion of the purchase price of such equipment or materials, provided that (i) any such lien shall
not encumber any other property of any Borrower, (ii) the amount of indebtedness secured thereby is not increased, (iii) the principal
amount of indebtedness secured by any such Lien shall at no time exceed one hundred percent (100%) of the original price for the
purchase of such property at the time of purchase and (iv) such Liens are made in the ordinary course of business and consistent
with prior practices.


 


“Person”
means and includes any natural person, individual, partnership, joint venture, corporation, trust, limited liability company, limited
company, joint stock company, unincorporated organization, government entity or any political subdivision or agency thereof, or
any other entity.


 


“Pledge and
Security Agreement” means the Pledge and Security Agreement dated as of the date hereof pursuant to which the Borrower
(and any other grantors party to such agreement) granted a first priority security interest in shares in certain of its subsidiaries
as collateral for the Loans, as set forth in the Pledge and Security Agreement.


 




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“Pledged Shares” shall
have the meaning set forth in the Pledge and Security Agreement.


 


“Pro Rata
Share” means, with respect to all payments, computations and other matters relating to the Commitment or Loans of any
Lender, the percentage obtained by dividing (a) the Commitment of that Lender, by (b) the aggregate Commitments of all Lenders.
If the commitment of each Lender to make Loans has terminated or expired, then the Pro Rata Share of each Lender shall be determined
based on the Pro Rata Share of such Lender most recently in effect, giving effect to subsequent assignments.


 


“Register” has the meaning
set forth in Section 1.4(b).


 


“Required Lenders” means,
at any time, Lenders holding Loans representing more than 50% of the sum of the Loans outstanding.


 


“SEC” means the United
States Securities and Exchange Commission.


 


“Securities
Act” means the Securities Act of 1933, as amended, including the rules and regulations promulgated thereunder.


 


“Taxes”
means all present or future taxes, levies, imposts, stamp or other duties, deductions, charges or withholdings imposed by any Governmental
Authority, and all liabilities with respect thereto (including by reason of any delay in payment).


 


“Warrant Shares” has
the meaning set forth in Section 3.1(p).


 


“Warrants” has the meaning
set forth in Section 2.9(b).


 


Section 1.2   Interpretation.
In this Agreement, unless the context otherwise requires, all words and personal pronouns relating thereto shall be read and
construed as the number and gender of the party or parties require, and all verbs shall be read and construed as agreeing with
their corresponding nouns and pronouns; the division of this Agreement into Articles and Sections (and the use of headings and
captions) is for convenience of reference only and shall not modify or affect the interpretation or construction of this Agreement
or any of its provisions; the words “herein,” “hereof,” “hereunder,” “hereinafter”
and “hereto” and words of similar import refer to this Agreement as a whole and not to any particular Article or Section
hereof; the words “include,” “including,” and derivations thereof shall be deemed to have the phrase “without
limitation” attached thereto unless otherwise expressly stated; references to a specified Article, Exhibit or Section shall
be construed as a reference to that specified Article, Exhibit or Section of this Agreement; and any reference to any of the Loan
Documents means such document as the same shall be amended, supplemented or modified and from time to time in effect.


 


Section 1.3   Business
Day Adjustment. If the day by which any payment or other performance is due to be made is not a Business Day, that payment
or performance shall be made by the next succeeding Business Day unless that next succeeding Business Day falls in a different
calendar month, in which case that payment or other performance shall be made by the Business Day immediately preceding the day
by which such payment or other performance is due to be made.


 




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Section 1.4   Register.


 


(a)          The
Borrower shall record on its books and records the amount of each Loan, the Interest Rate applicable thereto, all payments of principal
and interest thereon and the principal balance thereof from time to time outstanding.


 


(b)          The
Borrower shall establish and maintain, at its address referred to in Section 6.1: (i) a record of ownership (the “Register”)
in which the Borrower agrees to register by book entry the interests (including any rights to receive payment hereunder) of each
Lender in the Loans, and any assignment of any such interest, and (ii) accounts in the Register in accordance with its usual practice
in which it shall record (1) the names and addresses of the Lenders (and any change thereto pursuant to this Agreement), (2) the
amount of the Loans and each funding of any participation therein, (3) the amount of any principal or interest due and payable
or paid, and (4) any other payment received by the Lenders from the Borrower and its application to the Loans.


 


(c)          Notwithstanding
anything to the contrary contained in this Agreement: (i) the Loans (including any Notes evidencing the Loans) are registered obligations,
(ii) the right, title and interest of the Lenders and their assignees in and to the Loans shall be transferable only upon notation
of such transfer in the Register, (iii) and no assignment thereof shall be effective until recorded therein. This Section 1.4
shall be construed so that the Loans are at all times maintained in “registered form” within the meaning of Sections
163(f), 871(h)(2) and 881(c)(2) of the Code.


 


(d)          The
Borrower and the Lenders shall treat each Person whose name is recorded in the Register as a Lender for all purposes of this Agreement.
Information contained in the Register with respect to any Lender shall be available for access by the Borrower or such Lender at
any reasonable time and from time to time upon reasonable prior notice.


 


ARTICLE 2


 


AGREEMENT FOR THE LOAN


 


Section 2.1   Use
of Proceeds. The proceeds of the Loans will be used for working capital and for other general corporate purposes.


 


Section 2.2   Commitments;
Disbursement of Loans; Pro Rata Shares. During the Commitment Period, subject to the terms and conditions hereof, each Lender
severally agrees to make Loans to the Borrower in an aggregate amount up to but not exceeding such Lender’s Commitment. Any
amounts borrowed under this Section 2.2 and subsequently repaid or prepaid may not be re-borrowed. Subject to Section
2.3(b), all amounts owed hereunder with respect to the Loans shall be paid in full on the Maturity Date.


 


Whenever the Borrower
desires that the Lenders disburse a Loan to the Borrower (each, a Disbursement”), the Borrower shall deliver to the
Lenders a written request (a “Disbursement Request”) for a Disbursement at least fifteen (15) Business Days
in advance of the proposed disbursement date (the “Disbursement Date”); provided, however, that the first Disbursement
Notice shall be deemed delivered on the Agreement Date simultaneously with the execution and delivery hereof. Each Disbursement
shall be in an aggregate minimum amount of $500,000 (five hundred thousand dollars) and integral multiples of $100,000 (one thousand
dollars) in excess of that amount. Upon satisfaction or waiver of the conditions set forth in Article 4 hereof, each Lender shall
fund its Pro Rata Share of the Disbursement.


 




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All Disbursements pertaining
to a given Disbursement Request shall be made by Lenders simultaneously and proportionately to their respective Pro Rata Shares,
it being understood that no Lender shall be responsible for any default by any other Lender of such other Lender’s obligation
to make a Disbursement requested hereunder nor shall any Commitment of any Lender be increased or decreased as a result of a default
by any other Lender of such other Lender’s obligation to make a Disbursement requested hereunder. If any Lender (a “Defaulting
Lender”) fails for any reason or no reason to fund 100% of a Disbursement Request by the Disbursement Date, then such
Lender shall be in default under this Agreement and shall forfeit its right to the Commitment Warrants.


 


Section 2.3   Payment.


 


(a)          The
Borrower shall pay the outstanding principal of all Loans and any Accrued Interest Amounts thereon on the twenty-four-month anniversary
of the Agreement Date (the “Maturity Date”).


 


(b)          The
Borrower may prepay all or a portion of the outstanding Disbursements upon five (5) days’ notice to the Lenders
pertaining to such Disbursement(s), without any prepayment penalty and subject only to the repayment obligations contained in
this Section 2.3(b). Each prepayment by the Borrower shall be applied first, to all expenses and indemnification
payments then owing to the Lenders (if any), second, to accrued and unpaid interest on the Loans, and third, to the principal
balance of the Loans, and shall be allocated among the Lenders in accordance with their Pro Rata Shares. The amount of any
prepayment to be applied to principal shall be applied to the payments required under Section 2.3(a) in direct order
of maturity. For the avoidance of doubt, in the event that the Borrower provides prepayment notice pursuant to this Section
2.3(b), the Lenders shall retain any conversion rights to which they are entitled under outstanding Notes during the
aforementioned five (5)-day period.


 


Section 2.4   Payments.
The Borrower shall pay to each Lender such Lender’s Pro Rata Share of all principal, interest and other amounts due and
owing under the Loan Documents. All payments by the Borrower under any of the Loan Documents shall be made without setoff or counterclaim.
Payments of any amounts due to the Lenders under this Agreement shall be made in Dollars in immediately available funds prior to
11:00 a.m. New York City time on such date that any such payment is due, at such bank or places as the Lenders shall from time
to time designate to the Borrower in writing at least five (5) Business Days prior to the date such payment is due. The Borrower
shall pay all and any costs (administrative or otherwise) imposed by banks, clearing houses, or any other financial institution,
in connection with making any payments under any of the Loan Documents, except for any costs imposed by the Lenders’ banking
institutions.


 


Section 2.5   Taxes.


 


(a)          Any
and all payments hereunder or under any other Loan Document shall be made, in accordance with this Section 2.5, free and
clear of and without deduction for any and all present or future Indemnified Taxes except as required by Applicable Law. If Borrower
shall be required by law to deduct any Indemnified Taxes from or in respect of any sum payable hereunder or under any other Loan
Document, (i) the sum payable shall be increased by as much as shall be necessary so that after making all required deductions
(including deductions for Indemnified Taxes applicable to additional sums payable under this Section 2.5), each Lender shall
receive an amount equal to the sum it would have received had no such deductions been made (any and all such additional amounts
payable shall hereafter be referred to as the “Additional Amounts”), (ii) Borrower shall make such deductions,
and (iii) Borrower shall pay the full amount deducted to the relevant Governmental Authority in accordance with Applicable Law.
Borrower shall promptly furnish to the applicable Lender the original or a certified copy of a receipt evidencing payment thereof
or other evidence of such payment reasonably satisfactory to such Lender.


 




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(b)          Borrower
agrees to pay, and each Lender authorizes Borrower to pay in its name (but without duplication), all Other Taxes. Borrower shall
promptly furnish to the applicable Lender the original or a certified copy of a receipt evidencing payment thereof or other evidence
of such payment reasonably satisfactory to such Lender.


 


(c)          Borrower
shall reimburse and indemnify, within 10 days after receipt of written demand therefor, each Lender for all Indemnified Taxes (including
all Indemnified Taxes imposed on amounts payable under this Section 2.5(c)) paid by such Lender. A reasonably detailed certificate
of the applicable Lender(s) setting forth the amounts to be paid thereunder and delivered to Borrower shall be conclusive, absent
manifest error.


 


(d)          If
a payment to a Lender under this Agreement would be subject to U.S. withholding tax imposed by FATCA if such Lender were to fail
to comply with the applicable reporting requirements of FATCA, such Lender shall deliver to Borrower, at the times prescribed by
law or as reasonably requested by Borrower, such documentation as is required in order for Borrower to comply with its obligations
under FATCA, to determine that such Lender has or has not complied with its obligations under FATCA, or to determine the amount
to deduct and withhold from such payment.


 


(e)          If
a Lender determines in good faith that it has received a refund from a Governmental Authority of any Indemnified Taxes previously
paid or reimbursed by Borrower, such Lender shall promptly pay the amount so paid or reimbursed by the Borrower (not to exceed
the amount so refunded) to the Borrower, net of all out-of-pocket expense (including any Taxes imposed thereon) of such Lender
incurred in obtaining such refund or making such payment to the Borrower, provided that the Borrower, upon the request of such
Lender, agrees to repay the amount paid over to the Borrower (plus any penalties, interest or other charges imposed by the relevant
Governmental Authority) to such Lender if such Lender is required to repay such refund to such Governmental Authority. Nothing
in this Section shall require any Lender to disclose any information it deems confidential (including, without limitation, its
tax returns) to any Person, including Borrower.


 


Section 2.6   Costs,
Expenses and Losses. If, as a result of any failure by the Borrower to pay any sums due under this Agreement (other than pursuant
to Section 2.3(b)) on the due date therefor (after the expiration of any applicable grace periods), the Lenders shall, after
applying reasonable mitigation efforts, incur costs, expenses and/or losses, by reason of the liquidation or redeployment of deposits
from third parties or in connection with obtaining funds to make or maintain the Commitments, the Loans or any Disbursement, the
Borrower shall pay to the Lenders (within 15 days after receipt by it of a certificate from the Lenders setting forth in reasonable
detail such costs, expenses and/or losses incurred with supporting documentation) the amount of such costs, expenses and/or losses.
For the purposes of the preceding sentence, “costs, expenses and/or losses” shall include, without limitation, any
interest paid or payable to carry any unpaid amount and any loss, premium, penalty or expense which may be incurred in obtaining,
liquidating or employing deposits of or borrowings from third parties in order to make, maintain or fund the Loans or any portion
thereof.


 




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Section 2.7   Interest.
The outstanding principal amount of the Notes shall bear interest at the Interest Rate (calculated on the basis of a year of
365 days and the actual number of days elapsed). Interest shall be paid quarterly in arrears commencing on December 1, 2016 and
on the first Business Day of each September, December, March and June thereafter (each, an “Interest Payment Date”)
until the Maturity Date. Upon notice from the Borrower to the Lenders prior to any of the first five Interest Payment Dates applicable
to any Disbursement, all or a portion of the interest (as otherwise payable on such Interest Payment Date) for the applicable Interest
Payment Date or Interest Payment Dates shall not be paid in cash but shall be added to the then outstanding amount of said Disbursement
(the aggregate amount of all such interest so added, the “Accrued Interest Amount”). The Borrower may provide
such notice for any Disbursement on one or more occasions. The Accrued Interest Amount with respect to each Disbursement shall
be paid in cash not later than the last Business Day of the sixth calendar quarter following the date of such Disbursement.


 


Section 2.8   Default
Interest. Upon the occurrence and during the continuance of an Event of Default, the outstanding principal balance of the Loans
and, to the extent permitted by Applicable Law, any overdue interest payments on the Loans or any other amounts owed hereunder,
shall thereafter bear interest (including post-petition interest in any proceeding under the United States Bankruptcy Code or other
applicable bankruptcy laws) payable on demand at a rate that is two percent (2%) in excess of the Interest Rate.


 


Section 2.9   Issuance
of Warrants.


 


(a)          Within
15 (fifteen) days after termination of the Commitment Period, Borrower shall issue to Lenders their Pro Rata Shares of warrants
to purchase in the aggregate 1,500,000 shares of Common Stock, in substantially the form set forth on Exhibit B-1 hereto (the “Commitment
Warrants”).


 


(b)          Within
15 (fifteen) days after termination of the Commitment Period, Borrower shall issue to all non-Defaulting Lenders, on a pro rata
basis based on their actual Loan amount to the principal amount of all Notes issued, warrants to purchase a number of shares of
Common Stock, in substantially the form set forth on Exhibit B-2 hereto in an amount equal to the product of: (i) 1,000,000; times
(ii) the principal amount of all Notes issued pursuant to this Agreement divided by 25,000,000 (such warrants, the “Funding
Warrants” and, collectively with the Commitment Warrants, the “Warrants”). For the avoidance of doubt,
the early termination by the Borrower pursuant to Section 6.14 shall not relieve the Borrower of its obligations to issue
the Warrants contained in this Section 2.9.


 




    	 	10	 



     


    

 


ARTICLE 3


 


REPRESENTATIONS AND WARRANTIES


 


Section 3.1   Representations
and Warranties of the Borrower. The Borrower represents and warrants to the Lenders that, as of the Agreement Date and each
Disbursement Date:


 


(a)          The
Borrower is conducting its business in compliance with its Organizational Documents, which are in full force and effect.


 


(b)          No
Default or Event of Default has occurred.


 


(c)          The
Borrower (i) is not bankrupt and (ii) has not taken action, and no such action has been taken by a third party, for the Borrower’s
winding up, dissolution, or liquidation or similar executory or judicial proceeding or for the appointment of a liquidator, custodian,
receiver, trustee, administrator or other similar officer for the Borrower or any or all of its assets or revenues.


 


(d)          The
obligation of the Borrower to make any payment under this Agreement (together with all charges in connection therewith) is absolute
and unconditional.


 


(e)          The
Borrower is validly existing as a corporation in good standing under the laws of the state of Delaware. The Borrower has full power
and authority to own its properties, conduct its business and enter into the Loan Documents to which it is a party and to consummate
the transactions contemplated under such Loan Documents, and is duly qualified to do business as a foreign entity and is in good
standing in each jurisdiction where the failure to be so qualified could reasonably be expected to result in a Material Adverse
Effect.


 


(f)          There
is not pending or, to the knowledge of the Borrower, threatened in writing, any action, suit or other proceeding before any Governmental
Authority that would reasonably be expected to have a Material Adverse Effect (i) to which the Borrower a is a party, or (ii)
which has as the subject thereof any assets owned by the Borrower. There are no current or, to the knowledge of the Borrower, pending,
legal, governmental or regulatory enforcement actions, suits or other proceedings to which the Borrower or any of its assets is
subject that would reasonably be expected to have a Material Adverse Effect.


 


(g)          The
Loan Documents, as and when executed and delivered, have been duly authorized, executed and delivered by the Borrower and constitute
a valid, legal and binding obligation of the Borrower enforceable against the Borrower in accordance with their terms, except as
such enforceability may be limited by (i) applicable bankruptcy, reorganization, moratorium or other similar laws affecting creditors’
rights generally and (ii) applicable equitable principles. The execution, delivery and performance of the Loan Documents by the
Borrower and the consummation of the transactions therein contemplated will not (A) conflict with or result in a breach or violation
of any of the terms or provisions of, or constitute a default under, or result in the creation or imposition of any Lien (other
than pursuant to the Loan Documents) upon any assets of the Borrower pursuant to any agreement to which the Borrower is a party
or by which the Borrower is bound or to which any of the assets of the Borrower is subject, (B) result in any violation of or conflict
with the provisions of the Organizational Documents of the Borrowers, (C) result in the violation of any Applicable Law or (D)
result in the violation of any judgment, order, rule, regulation or decree of any Governmental Authority, except, with respect
to the foregoing clauses (A), (C) and (D), as could not reasonably
be expected to have a Material Adverse Effect. No consent, approval, authorization or order of, or registration or filing with,
any Governmental Authority is required for the execution, delivery and performance of any of the Loan Documents or for the consummation
by the Borrower of the transactions contemplated thereby, except for such registrations and filings in connection with the issuance
of the Warrants and Warrant Shares pursuant to the Loan Documents that are necessary to comply with federal and state securities
laws, rules and regulations. The Borrower has the power and authority to enter into the Loan Documents and to consummate the transactions
contemplated under the Loan Documents.


 




    	 	11	 



     


    

 


(h)          Other
than has been obtained or shall be obtained pursuant to the terms hereof, no Authorization is required for (i) the execution and
delivery by the Borrower of this Agreement, the Warrants and the other Loan Documents, or (ii) the consummation of the transactions
contemplated hereby and thereby, including but not limited to the issuance and exercise of the Warrants.


 


(i)          The
Borrower holds, and is operating in compliance in all material respects with, all franchises, grants, authorizations, licenses,
permits, easements, consents, certificates and orders of any Governmental Authority (collectively, “Necessary Documents”)
material to its business, and all such required Necessary Documents are valid and in full force and effect; the Borrower has not
received written notice of any revocation or modification of any of the Necessary Documents, and the Borrower has no reason to
believe that any of the Necessary Documents will not be renewed in the ordinary course of business (to the extent applicable);
and the Borrower is in compliance in all material respects with all applicable federal, state, local and foreign laws, regulations,
orders and decrees applicable to the conduct of its business, except for such instances of non-compliance as would not reasonably
be expected to have a Material Adverse Effect.


 


(j)          The
Borrower has good and marketable title to all of its material assets. The property held under lease by the Borrower is held under
valid, subsisting and enforceable leases with only such exceptions with respect to any particular lease as do not interfere in
any material respect with the conduct of the business of the Borrower.


 


(k)          The
Borrower is not in violation of its Organizational Documents, and no event has occurred which, with notice or lapse of time or
both, would constitute such breach or other default in the performance of any agreement or condition contained in any agreement
under which it may be bound, or to which any of its assets is subject, except for such breaches or defaults as would not reasonably
be expected to have a Material Adverse Effect.


 


(l)          As
of the Agreement Date, no income, franchise or other material Tax Return of the Borrower is under audit or examination by any Governmental
Authority.


 


(m)        The
Borrower: (A) except as would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect,
has not received any warning letter or other correspondence or notice from any Governmental Authority alleging or asserting noncompliance
with any Applicable Laws or any licenses, certificates, approvals, clearances, authorizations, permits and supplements or amendments
thereto required in connection with the business of the Borrower by any Applicable Laws (together, the “Authorizations”);
(B) except as would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect possesses and
complies with the Authorizations, which are valid and in full force and effect; (C) except as would not, individually or in the
aggregate, reasonably be expected to have a Material Adverse Effect, has not received written notice that any Governmental Authority
has taken, is taking or intends to take action to limit, suspend, modify or revoke any Authorization and has no knowledge that
any Governmental Authority is considering such action; and (D) except as would not, individually or in the aggregate, reasonably
be expected to have a Material Adverse Effect 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.


 




    	 	12	 



     


    

 


(n)          The
audited financial statements of the Borrower as of December 31, 2015, together with the related notes included therein, fairly
present the financial condition of the Borrower as of such date and the results of operations and changes in cash flows for the
periods therein specified in conformity with GAAP consistently applied throughout the periods involved, and, as of the Agreement
Date, there are no material off-balance sheet arrangements or any other relationships with unconsolidated entities or other persons
that may have a material current or, to the Borrower’s knowledge, material future effect on the Borrower’s financial
condition, results of operations, liquidity, capital expenditures, capital resources or significant components of revenue or expenses.


 


(o)          The
Borrower maintains a system of internal accounting controls sufficient to provide reasonable assurances that (i) transactions are
executed in accordance with management’s general or specific authorization; (ii) transactions are recorded as necessary to
permit preparation of financial statements in conformity with GAAP and to maintain accountability for assets; (iii) access to assets
is permitted only in accordance with management’s general or specific authorization; and (iv) the recorded accountability
for material assets is compared with existing assets at reasonable intervals, and appropriate action is taken with respect to any
differences.


 


(p)          All
of the issued and outstanding shares of capital stock of the Borrower are duly authorized and validly issued, fully paid and nonassessable,
have been issued in compliance with all federal and state securities laws, were not issued in violation of or subject to any preemptive
rights or other rights to subscribe for or purchase securities that have not been waived in writing; the Warrants and the shares
of Common Stock issuable upon exercise of the Warrants (the “Warrant Shares”) have been duly authorized, and
the Warrant Shares, when issued, delivered and paid for in accordance with the terms of the Warrants, will have been validly issued
and will be fully paid and nonassessable. The issuance and delivery of the Warrants does not and, assuming full exercise of the
Warrants, the exercise of the Warrants will not, require approval from any Governmental Authority other than filings that have
been made pursuant to applicable state securities laws and post-sale filings pursuant to applicable state and federal securities
laws and the rules and regulations of NASDAQ.


 


(q)          The
Borrower has, upon issuance of the Warrant, reserved for issuance a number of shares of Common Stock sufficient to cover all Warrant
Shares.


 


Section
3.2   Borrower Acknowledgment. The Borrower acknowledges that it has made the representations and
warranties in Section 3.1 with the intention of persuading the Lenders to enter into the Loan Documents and that the
Lenders have entered into the Loan Documents on the basis of, and in full reliance on, each of such representations and
warranties.


 


Section 3.3   Representations
and Warranties of the Lenders. Each Lender, severally and not jointly, represents and warrants to the Borrower as of the Agreement
Date and as of each date that any Note, Warrant or Common Stock is issued to a Lender, that:


 




    	 	13	 



     


    

 


(a)          Such
Lender is duly organized and validly existing under the laws of the jurisdiction of its formation.


 


(b)          Each
Loan Document to which it is a party has been duly authorized, executed and delivered by such Lender and constitutes the valid
and legally binding obligation of such Lender, enforceable in accordance with its terms, except as such enforceability may be limited
by (i) applicable insolvency, bankruptcy, reorganization, moratorium or other similar laws affecting creditors’ rights generally,
and (ii) applicable equitable principles (whether considered in a proceeding at law or in equity).


 


(c)          Such
Lender has full power and authority to make each Disbursement, enter into and perform its other obligations under each of the Loan
Documents and carry out the other transactions contemplated thereby.


 


(d)          Each
of the Notes, the Warrants and the Warrant Shares (collectively the “Loan Securities”) to be received by such
Lender hereunder will be acquired for such Lender’s own account, and not with a view to the resale or distribution of any
part thereof in violation of the Securities Act of 1933, as amended (“1933 Act”), except pursuant to sales registered
or exempted under the 1933 Act, and such Lender has no present intention of selling, granting any participation in, or otherwise
distributing the same in violation of the 1933 Act without prejudice, however, to such Lender’s right at all times to sell
or otherwise dispose of all or any part of such Loan Securities in compliance with applicable federal and state securities laws.
Nothing contained herein shall be deemed a representation or warranty by such Lender to hold the Loan Securities for any period
of time, and such Lender reserves the right to dispose of the Loan Securities at any time in accordance with or pursuant to a registration
statement or an exemption under the 1933 Act. Such Lender is not a broker-dealer registered with the SEC under the Securities Exchange
Act of 1934, as amended (“1934 Act”), or an entity engaged in a business that would require it to be so registered.


 


(e)          Such
Lender can bear the economic risk and complete loss of its investment in the Loan Securities and has such knowledge and experience
in financial or business matters that it is capable of evaluating the merits and risks of the investment contemplated hereby.


 


(f)          Such
Lender has had an opportunity to receive, review and understand all information related to the Borrower requested by it and to
ask questions of and receive answers from the Borrower regarding the Borrower, its business and the terms and conditions of the
offering of the Loan Securities, and has conducted and completed its own independent due diligence. Such Lender acknowledges receipt
of copies of the Borrower’s filings pursuant to the 1934 Act. Based on the information such Lender has deemed appropriate,
it has independently made its own analysis and decision to enter into the Loan Documents. Neither such inquiries nor any other
due diligence investigation conducted by such Lender shall modify, limit or otherwise affect such Lender’s right to rely
on the Borrower’s representations and warranties contained in this Agreement.


 


(g)          Such
Lender understands that the Loan Securities are characterized as “restricted securities” under the U.S. federal securities
laws inasmuch as they are being acquired from the Borrower in a transaction not involving a public offering and that under such
laws and applicable regulations such securities may be resold without registration under the 1933 Act only in certain limited circumstances.


 


(h)          Such
Lender is an “accredited investor” as defined in Regulation D promulgated under the 1933 Act.


 




    	 	14	 



     


    

 


(i)          Such
Lender did not learn of the investment in the Loan Securities as a result of any general solicitation or general advertising.


 


(j)          No
Person will have, as a result of the transactions contemplated by the Loan Documents, any valid right, interest or claim against
or upon the Borrower or any Lender for any commission, fee or other compensation pursuant to any agreement, arrangement or understanding
entered into by or on behalf of such Lender.


 


(k)          Such
Lender understands that no United States federal or state agency, or similar agency of any other country, has reviewed, approved,
passed upon, or made any recommendation or endorsement of the Borrower or the purchase of the Loan Securities.


 


(l)          Such
Lender has no present intent to effect a “change of control” of the Borrower as such term is understood under the rules
promulgated pursuant to Section 13(d) of the 1934 Act.


 


(m)          No
source of funds used by such Lender to make any Disbursement constitutes “plan assets” within the meaning of the Employee
Retirement Income Security Act of 1974, the Code or any of the respective regulations promulgated thereunder.


 


ARTICLE 4


 


CONDITIONS OF DISBURSEMENT


 


Section 4.1   Conditions
to the First Disbursement. The obligation of the Lenders to make the first Disbursement shall be subject to the fulfillment
of the following conditions on or before the date of the first Disbursement: The Lenders shall have received: (i) counterparts
of this Agreement executed by the Borrower and each Lender; (ii) the Notes executed by the Borrower; and (iii) the Pledge and Security
Agreement executed by the Borrower and FBIO Acquisition, Inc.


 


Section 4.2   Conditions
to All Disbursements. The obligation of the Lenders to make any Disbursement shall be subject to the fulfillment of the following
conditions:


 


(a)          No
Default or Event of Default shall have occurred or would result from the Disbursement; and


 


(b)          Receipt
by the Lenders of a Disbursement Request (which Disbursement Request shall include a representation that all conditions contained
in this Article 4 to any such Disbursement have been satisfied).


 




    	 	15	 



     


    

 


ARTICLE 5


 


PARTICULAR COVENANTS AND EVENTS OF DEFAULT


 


Section 5.1   Affirmative
Covenants. Unless the Required Lenders shall otherwise agree:


 


(a)          The
Borrower shall maintain its existence and shall qualify and remain qualified to do its business as currently conducted, except
where the failure to maintain such qualification would not reasonably be expected to have a Material Adverse Effect.


 


(b)          The
Borrower shall comply with all Applicable Laws, except where the failure to comply would not reasonably be expected to have a Material
Adverse Effect.


 


(c)          The
Borrower shall obtain and keep in full force and effect all Authorizations, except where the failure to do so would not reasonably
be expected to have a Material Adverse Effect.


 


(d)          The
Borrower shall promptly notify the Lenders of the occurrence of (i) any Default or Event of Default and (ii) any litigation,
arbitration, mediation or administrative or regulatory proceedings that are instituted or threatened in writing against the Borrower
after the Agreement Date which could reasonably be expected to have a Material Adverse Effect.


 


(e)          The
Borrower shall maintain and keep in force, for each business in which Borrower is engaged, insurance of the types and in amounts
customarily carried in similar lines of business, including but not limited to fire, liability and property damage, in each case
in such amounts (giving effect to self-insurance), with such deductibles, covering such risks and otherwise on such terms and conditions
as shall be customary for companies similarly situated in the industry.


 


(f)          The
Borrower shall pay and discharge before they become delinquent any and all material taxes, assessments and governmental charges
or levies, including without limitation federal and state income taxes and state and local property taxes and assessments, except
(a) such as Borrower may in good faith contest or as to which a bona fide dispute may arise, and (b) for which Borrower has made
provision, to the Required Lenders’ reasonable satisfaction, for eventual payment thereof in the event Borrower is obligated
to make such payment.


 


Section 5.2   Negative
Covenants. The Borrower covenants that so long as any Lender remains committed to extend credit to Borrower pursuant hereto,
or any amounts payable under the Loan Documents remain outstanding, and until payment in full of all Obligations, Borrower will
not, without the Required Lenders’ prior written consent:


 


(a)          create,
incur or assume any indebtedness or liabilities resulting from borrowings, loans or advances, whether secured or unsecured, matured
or unmatured, liquidated or unliquidated, joint or several that is pari passu or senior to the Loans; provided, however,
that no provision contained herein or in any of the Loan Documents shall prohibit or be construed to prohibit the Borrower from
(x) extending, renewing, refinancing or replacing any existing indebtedness of the Borrower, (y) issuing new indebtedness that
is designed to, and is used to, repay the Loans or (z) issuing new indebtedness that is substantially similar to any issued
under or in connection with that certain Note Purchase Agreement, dated as of February 27, 2015, by and between the Borrower and
NSC Biotech Venture Fund I LLC.


 




    	 	16	 



     


    

 


(b)          Declare
or pay any dividend or distribution in cash or any other property (other than dividends or distributions payable solely in capital
stock of the Borrower) on Borrower’s capital stock now or hereafter outstanding.


 


(c)          Mortgage,
pledge, grant or permit to exist any Lien upon all or any portion of Borrower’s assets now owned or hereafter acquired, except
for Permitted Liens.


 


(d)          Cause,
permit, or suffer any Change of Control without repaying all outstanding Loans prior to the closing of such Change of Control.


 


Section 5.3   Events
of Default. The occurrence of any of the following shall constitute an “Event of Default” under this Agreement:


 


(a)          The
Borrower shall fail to pay, when due, any principal or interest payable in respect of the Loans, or any other amounts payable under
the Loan Documents.


 


(b)          The
Borrower shall have failed to comply with the due observance or performance of any covenant contained in: (i) Sections 5.1(d)
or (f) or Section 5.2, or (ii) any Loan Document (other than the covenants described in clauses (a) and (b)(i)
above) and such failure shall not have been cured by the Borrower within 30 days after the earlier of (A) the date the Chief Executive
Officer of the Borrower first becomes aware of such failure or (B) the date the Borrower receives written notice of such failure
from the Lenders.


 


(c)          Any
representation or warranty made by the Borrower in any Loan Document shall have been incorrect, false or misleading in any material
respect which results in a Material Adverse Effect.


 


(d)          (i)
The Borrower shall generally be unable to pay its debts as such debts become due, or shall admit in a duly authorized writing executed
by an officer of the Borrower its inability to pay its debts as they come due or shall make a general assignment for the benefit
of creditors; (ii) the Borrower shall declare a moratorium on the payment of its debts; (iii) the commencement by the Borrower
of proceedings to be adjudicated bankrupt or insolvent, or the consent by it to the commencement of bankruptcy or insolvency proceedings
against it, or the filing by it of a petition or answer or consent seeking reorganization, intervention or other similar relief
under any Applicable Law, or the consent by it to the filing of any such petition or to the appointment of an intervenor, receiver,
liquidator, assignee, trustee, sequestrator (or other similar official) of all or substantially all of its assets; (iv) the commencement
against the Borrower of a proceeding in any court of competent jurisdiction under any bankruptcy or other Applicable Law (as now
or hereafter in effect) seeking its liquidation, winding up, dissolution, reorganization, arrangement, adjustment, or the appointment
of an intervenor, receiver, liquidator, assignee, trustee, sequestrator (or other similar official), and any such proceeding shall
continue undismissed, or any order, judgment or decree approving or ordering any of the foregoing shall continue unstayed or otherwise
in effect, for a period of forty-five (45) days; or (v) any other event shall have occurred which under any Applicable Law would
have an effect analogous to any of those events listed above in this subsection.


 




    	 	17	 



     


    

 


(e)          Any
Authorization of a Government Authority necessary for the execution, delivery or performance of any Loan Document or for the validity
or enforceability of any of the Obligations under any Loan Document is not given or is withdrawn or ceases to remain in full force
or effect.


 


(f)          The
validity of any material provision of any Loan Document shall be contested in writing by the Borrower, or any Applicable Law shall
render any material provision of any Loan Document invalid or unenforceable or shall prevent or materially delay the performance
or observance by the Borrower of the Obligations.


 


(g)          The
Borrower shall breach or default with respect to any other material term of one or more items of indebtedness in the individual
or aggregate principal amounts in excess of $1,000,000, if the effect of such breach or default is to cause, or to permit
the holder or holders of that indebtedness (or a trustee on behalf of such holder or holders), to cause that indebtedness to become,
or be declared by a court of competent jurisdiction, due and payable prior to its stated maturity.


 


Section 5.4   Remedies.
Upon the occurrence of any Event of Default, and at any time thereafter unless and until such Event of Default has been waived
by the Required Lenders: (a) all indebtedness of Borrower under each of the Loan Documents, any term thereof to the contrary notwithstanding,
shall at Required Lenders’ option become immediately due and payable without presentment, demand, protest or notice of dishonor,
all of which are hereby expressly waived by Borrower; (b) the obligation, if any, of Lenders to extend any further credit under
any of the Loan Documents shall immediately cease and terminate; and (c) each Lender shall have all rights, powers and remedies
available under each of the Loan Documents, or accorded by law, including without limitation the right to resort to any or all
security (if any) for any credit subject hereto or as specified under the Pledge and Security Agreement and to exercise any or
all of the rights of a beneficiary or secured party (if applicable) pursuant to Applicable Law. All rights, powers and remedies
of Lenders after the occurrence of an Event of Default are cumulative and not exclusive, and shall be in addition to any other
rights, powers or remedies provided by law or equity.


 


Section 5.5   Automatic
Acceleration on Dissolution or Bankruptcy. Notwithstanding any other provisions of this Agreement, if an Event of Default under
Section 5.2(b) shall occur, the principal of the Notes (together with any other amounts accrued or payable under this Agreement)
shall thereupon become immediately due and payable without any presentment, demand, protest or notice of any kind, all of which
are hereby expressly waived by the Borrower.


 


Section 5.6   Recovery
Amounts Due. If any amount payable hereunder is not paid as and when due, the Borrower hereby authorizes the Required Lenders
to proceed, to the fullest extent permitted by Applicable Law, without prior notice, by right of set-off, banker’s lien or
counterclaim, against any moneys or other assets of the Borrower to the full extent of all amounts payable to the Lenders.


 




    	 	18	 



     


    

 


ARTICLE 6


 


MISCELLANEOUS


 


Section 6.1           Notices.
Any notices required or permitted to be given under the terms hereof shall be sent by certified or registered mail (return receipt
requested) or delivered personally or by courier (including a recognized overnight delivery service) or, if to the Borrower, by
electronic mail and shall be effective five (5) days after being placed in the mail, if mailed by regular United States mail, or
upon receipt, if delivered personally or by courier (including a recognized overnight delivery service), or when received by electronic
mail in each case addressed to a Party. The addresses for such communications shall be:


 


If to the Borrower:


 


Fortress Biotech, Inc.


 2 Gansevoort, 9th Floor


New York, NY 10014


E-mail: sberry@fortressbiotech.com


Attention: Samuel W. Berry, Corporate Counsel


 


With a copy to:


 


Alston & Bird, LLP


90 Park Avenue


New York, New York 10016


Email: mark.mcelreath@alston.com


Attn: Mark F. McElreath, Esq.


 


If to a Lender:


 


To the address of such Lender set forth
on the signature page hereto.


 


A Party may designate a different address for communications
in a written notice to the other Parties delivered in compliance with this Section.


 


Section 6.2   Waiver
of Notice. Whenever any notice is required to be given to the Lenders or the Borrower under any of the Loan Documents, a waiver
thereof in writing signed by the person or persons entitled to such notice, whether before or after the time stated therein, shall
be deemed equivalent to the giving of such notice.


 


Section 6.3   Reimbursement
of Legal and Other Expenses. Borrower shall pay to the Lenders the full amount of all reasonable attorneys’ fees, actually
expended or incurred by the Lenders in connection with the negotiation and preparation of this Agreement and the other Loan Documents
up to $25,000. In addition, if any amount owing to the Lenders under any Loan Document shall be collected through enforcement of
this Agreement, any Loan Document or restructuring of the Loans in the nature of a work-out, settlement, negotiation, or any process
of law, or shall be placed in the hands of third Persons for collection, the Borrower shall pay (in addition to all monies then
due in respect of the Loan or otherwise payable under any Loan Document) all reasonable and documented external attorneys’
and other fees and out-of-pocket expenses incurred in respect of such collection.


 




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Section 6.4   Governing
Law. ALL QUESTIONS CONCERNING THE CONSTRUCTION, VALIDITY, ENFORCEMENT AND INTERPRETATION OF THIS AGREEMENT SHALL BE GOVERNED
BY AND CONSTRUED AND ENFORCED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO CONTRACTS MADE AND TO BE PERFORMED
IN SUCH STATE. Each Party agrees that all legal proceedings concerning the interpretations, enforcement and defense of the transactions
contemplated by this Agreement (whether brought against a Party hereto or its respective affiliates, directors, officers, shareholders,
employees or agents) shall be commenced exclusively in the state and federal courts sitting in the City of New York. Each Party
hereby irrevocably submits to the exclusive jurisdiction of the state and federal courts sitting in the City of New York, borough
of Manhattan, for the adjudication of any dispute hereunder or in connection herewith or with any transaction contemplated hereby
or discussed herein and hereby irrevocably waives, and agrees not to assert in any suit, action or proceeding, any claim that it
is not personally subject to the jurisdiction of any such court, that such suit, action or proceeding is improper or is an inconvenient
venue for such proceeding. Each Party hereby irrevocably waives personal service of process and consents to process being served
in any such suit, action or proceeding by mailing a copy thereof via registered or certified mail or overnight delivery (with evidence
of delivery) to such Party at the address in effect for notices to it under this Agreement and agrees that such service shall constitute
good and sufficient service of process and notice thereof. Nothing contained herein shall be deemed to limit in any way any right
to serve process in any other manner permitted by law. The Parties hereby waive all rights to a trial by jury.


 


Section 6.5   Successors
and Assigns. This Agreement shall bind and inure to the respective successors and permitted assigns of the Parties, except
that (a) the Borrower may not assign or otherwise transfer all or any part of its rights under the Loan Documents without the prior
written consent of the Lenders and (b) so long as no Event of Default has occurred and is continuing, no Lender may assign or otherwise
transfer all or part of its rights or obligations under the Loan Documents without the prior written consent of the Borrower (which
consent shall not be unreasonably withheld or delayed). Upon a Lender’s assignment of a Note such Lender shall provide notice
of the transfer to Borrower for recordation in the Register pursuant to Section 1.4. Upon receipt of a notice of a transfer
of an interest in a Note, Borrower shall record the identity of the transferee and other relevant information in the Register,
and the transferee shall (to the extent of the interests transferred to such transferee) have all the rights and obligations of,
and shall be deemed, a Lender hereunder. Notwithstanding anything to the contrary contained in any Loan Document, no Lender shall
assign or otherwise transfer any of its rights under the Loan Documents to a Person that is not a United States person (as such
term is defined in Section 7701(a)(30) of the Code) without the prior written consent of the Borrower.


 


Section 6.6   Entire
Agreement. The Loan Documents contain the entire understanding of the Parties with respect to the matters covered thereby and
supersede any and all other written and oral communications, negotiations, commitments and writings with respect thereto. The provisions
of this Agreement may be waived, modified, supplemented or amended only by an instrument in writing signed by the authorized officer
of each Party; provided, however, that Lenders with Pro Rata Shares in excess of 50% shall have the right to amend,
modify or waive any provision of this Agreement on behalf of all Lenders.


 




    	 	20	 



     


    

 


Section 6.7   Severability.
If any provision of this Agreement shall be invalid, illegal or unenforceable in any respect under any Applicable Law, the
validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.


 


Section 6.8   Counterparts.
This Agreement may be executed in several counterparts, and by each Party on separate counterparts, each of which and any photocopies
and facsimile copies thereof shall be deemed an original, but all of which together shall constitute one and the same agreement.


 


Section 6.9   Survival.


 


(a)          This
Agreement and all agreements, representations and warranties made in the Loan Documents, and in any document, certificate or statement
delivered pursuant thereto or in connection therewith, shall be considered to have been relied upon by the other Parties and shall
survive the execution and delivery of this Agreement and the making of the Loans hereunder regardless of any investigation made
by any such other Party or on its behalf, and shall continue in force until all amounts payable under the Loan Documents shall
have been fully paid in accordance with the provisions thereof; the Lenders shall not be deemed to have waived, by reason of making
the Loans, any Event of Default that may arise by reason of such representation or warranty proving to have been false or misleading,
notwithstanding that the Lenders may have had notice or knowledge of any such Event of Default or may have had notice or knowledge
that such representation or warranty was false or misleading at the time the Disbursement was made.


 


(b)          The
obligations of the Borrower under Sections 1.4 and 2.5 and the obligations of the Borrower and the Lenders
under this Article 6 shall survive and remain in full force and effect regardless of the consummation of the transactions
contemplated hereby, the repayment of the Loans, or the termination of this Agreement or any provision hereof.


 


Section 6.10   No
Waiver. Neither the failure of, nor any delay on the part of, any Party in exercising any right, power or privilege hereunder,
or under any Loan Document, shall operate as a waiver thereof, nor shall any single or partial exercise of any right, power or
privilege hereunder, or under any Loan Document, preclude other or further exercise thereof or the exercise of any other right,
power or privilege; nor shall any waiver of any right, power, privilege or default hereunder, or under any Loan Document, constitute
a waiver of any other right, power, privilege or default or constitute a waiver of any default of the same or of any other term
or provision. No course of dealing and no delay in exercising, or omission to exercise, any right, power or remedy accruing to
the Lenders upon any default under this Agreement or any other Loan Document shall impair any such right, power or remedy or be
construed to be a waiver thereof or an acquiescence therein; nor shall the action of the Lenders in respect of any such default,
or any acquiescence by it therein, affect or impair any right, power or remedy of the Lenders in respect of any other default.
All rights and remedies herein provided are cumulative and not exclusive of any rights or remedies otherwise provided by law.


 


Section 6.11   Indemnity.


 


(a)          The
Borrower shall, at all times, indemnify and hold each Lender harmless (the “Indemnity”) and each of their respective
directors, partners, officers, employees, agents, counsel and advisors (each, an “Indemnified Person”) in connection
with any losses, claims (including the reasonable attorneys’ fees incurred in defending against such claims), damages, liabilities,
penalties, or other expenses arising out of, or relating to, the Loan Documents, the extension of credit
hereunder or the Loans or the use or intended use of the Loans, which an Indemnified Person may incur or to which an Indemnified
Person may become subject, but excluding Excluded Taxes (each, a “Loss”). The Indemnity shall not apply to the
extent that a court or arbitral tribunal of competent jurisdiction issues a final judgment that such Loss resulted from the gross
negligence or willful misconduct of the Indemnified Person. The Indemnity is independent of and in addition to any other agreement
of Borrower under any Loan Document to pay any amount to the Lenders, and any exclusion of any obligation to pay any amount under
this subsection shall not affect the requirement to pay such amount under any other section hereof or under any other agreement.
For the avoidance of doubt, this Section 6.11 shall not apply to Indemnified Taxes (which are otherwise addressed in Section
2.5 hereof).


 




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(b)          Promptly
after receipt by an Indemnified Person of notice of the commencement of any action (including any governmental action), such Indemnified
Person shall, if it intends to submit a claim for indemnification under this Section 6.11, deliver to Borrower a written
notice of the commencement thereof, and Borrower shall have the right to participate in, and, to the extent Borrower so desires,
to assume control of the defense thereof with counsel mutually satisfactory to Borrower and the Indemnified Person, as the case
may be.


 


(c)          An
Indemnified Person shall have the right to retain its own counsel with the documented reasonable fees and out-of-pocket expenses
to be paid by the Borrower, if, in the reasonable opinion of counsel for the Indemnified Person, the representation by counsel
selected by Borrower would be inappropriate due to actual or potential differing interests between such Indemnified Person and
any other party represented by such counsel in such proceeding. The Borrower shall pay for only one separate legal counsel for
each Indemnified Person. The failure of an Indemnified Person to deliver written notice to the Borrower within a reasonable time
of the commencement of any such action shall not relieve the Borrower of any liability to the Indemnified Person under this Section
6.11, except to the extent that Borrower is actually prejudiced in its ability to defend such action.


 


Section 6.12   No
Usury. The Loan Documents are hereby expressly limited so that in no contingency or event whatsoever, whether by reason of
acceleration or otherwise, shall the amount paid or agreed to be paid to the Lenders for the Loans exceed the maximum amount permissible
under Applicable Law. If from any circumstance whatsoever fulfillment of any provision hereof, at the time performance of such
provision shall be due, shall involve transcending the limit of validity prescribed by law, then, ipso facto, the obligation
to be fulfilled shall be reduced to the limit of such validity, and if from any such circumstance the Lenders shall ever receive
anything which might be deemed interest under Applicable Law that would exceed the highest lawful rate, such amount that would
be deemed excessive interest shall be applied to the reduction of the principal amount owing on account of the Loans, or, if such
deemed excessive interest exceeds the unpaid balance of principal of the Loan, such deemed excess shall be refunded to the Borrower.
All sums paid or agreed to be paid to the Lenders for the Loans shall, to the extent permitted by Applicable Law, be deemed to
be amortized, prorated, allocated and spread throughout the full term of the Loans until payment in full so that the deemed rate
of interest on account of the Loans is uniform throughout the term thereof. The terms and provisions of this Section shall control
and supersede every other provision of this Agreement and the other Loan Documents.


 


Section 6.13   Further
Assurances. From time to time, the Borrower shall perform any and all acts and execute and deliver to the Lenders such additional
documents as may be necessary or as reasonably requested by the Lenders to carry out the purposes of any Loan Document or any or
to preserve and protect the Lenders’ rights as contemplated therein.


 




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Section 6.14   Termination.
The Borrower may upon 15 days’ notice to the Lenders terminate this Agreement, and the other Loan Documents (other than the
Warrants) upon payment in full of the Obligations (other than under the Warrants).


 


Section 6.15   Lenders’
Obligations. The obligations of the Lenders hereunder are several, and no Lender shall be responsible for the obligations or
Commitment of any other Lender hereunder. Nothing contained herein or in any other Loan Document, and no action taken by the Lenders
pursuant hereto or thereto, shall be deemed to constitute the Lenders as a partnership, an association, a joint venture or any
other kind of entity. Anything in this Agreement or any other Loan Document to the contrary notwithstanding, each Lender hereby
agrees with each other Lender that each Lender shall be permitted to take any action to protect or enforce its rights arising out
of this Agreement or any Note or otherwise with respect to the Obligations without first obtaining the prior written consent of
the other Lender, it being the intent of the Lenders that any such action to protect or enforce rights under this Agreement and
any Note or otherwise with respect to the Obligations shall be independent rights of action. Any Lenders that are Affiliates as
of any date of determination shall constitute one (1) creditor holding a single claim for purposes of determining whether a class
of claims has made an election pursuant to § 1111(b) of the Bankruptcy Code and for determining whether a class of claims
has accepted or rejected a plan pursuant to § 1126 (c) of the Bankruptcy Code. In the event of a bankruptcy of the Borrower,
the Lenders that are Affiliates of one another shall not take or agree to take actions inconsistent with their agreement to be
deemed one (1) creditor holding a single claim.


 


[SIGNATURE PAGE FOLLOWS]


 




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


 


	 	BORROWER:
	 	 
	 	FORTRESS BIOTECH, INC. 


 


	 	By:	/s/ Lindsay A. Rosenwald, MD
	 	 	Name:	Lindsay A. Rosenwald, MD
	 	 	Title:	President & CEO


 


[Signature
Page to Credit Facility Agreement]




 




     


     


    

 


 


	 	LENDERS:


 


	 	OPUS POINT HEALTHCARE INNOVATIONS FUND, LP


 


	 	By: Opus Point Healthcare Fund GP, LLC,
	 	its general partner


 


	 	By:	/s/ Michael S. Weiss
	 	 	Name:	Michael S. Weiss
	 	 	Title:	Manager


 


	 	Commitment Amount: $
	 	Address:	2 Gansevoort, 9th Floor
	 	 	New York, NY 10014


 


	 	[	]


 


	 	By:	 	 
	 	 	Name:	 
	 	 	Title:	 


 


	 	Commitment Amount: $
	 	Address:


 


[SIGNATURE PAGE TO CREDIT FACILITY AGREEMENT]


 




     


     


    

 


EXHIBIT A – FORM OF NOTE


 


[See attached.]


 




     


     


    

 


EXHIBIT B-1 – FORM OF COMMITMENT WARRANTS


 


[See attached.]


 




     


     


    

 


EXHIBIT B-2 – FORM OF FUNDING WARRANTS


 


[Same as Exhibit B-1.]