Exhibit
10.21


 


CERTAIN
IDENTIFIED INFORMATION HAS BEEN EXCLUDED FROM THIS EXHIBIT BECAUSE IT BOTH (I) IS NOT MATERIAL AND (II) WOULD BE COMPETITIVELY
HARMFUL IF PUBLICLY DISCLOSED.


 


TEXT
OMITTED FROM THIS EXHIBIT IS MARKED WITH [***]


 


ROYALTY
AGREEMENT


 


THIS
ROYALTY AGREEMENT (this “Agreement”) is entered into effective as of May 1, 2012, among IRX THERAPEUTICS,
INC., a Delaware corporation (“IRX”) and IRX 2012 SENIOR NOTE INVESTORS, LLC, a Delaware limited liability
company (“Investor Entity”).


 


WHEREAS:


 


A.
Effective June 28, 2000, the UNIVERSITY OF SOUTH FLORIDA RESEARCH FOUNDATION, INC., a Florida corporation not for profit under
Chapter 617, Florida Statutes, and a direct support organization of the University of South Florida (“Research Foundation”),
and Immuno-Rx, Inc., a Florida corporation (the “Predecessor”), entered into four separate License Agreements
pursuant to which Research Foundation licensed certain patent rights to the Predecessor (such agreements, as the same may be amended
and as are in effect on the date hereof, the “License Agreements”).


 


B.
IRX succeeded to the Predecessor’s rights and obligations under the License Agreements as a result of the migratory merger
of Predecessor with and into IRX in August 2000.


 


C.
Investor Entity is an entity organized and owned by investors who or which participated in IRX’s 2012 senior note and warrant
financing (the “2012 Senior Loan Financing”) and purchased senior promissory notes of IRX (the “2012
Senior Notes”) in the 2012 Senior Loan Financing; and Investor Entity was organized for the specific purpose of entering
into this Agreement.


 


D.
As an inducement to the owners of the Investor Entity to participate in the 2012 Senior Loan Financing and to invest in IRX through
the purchase of 2012 Senior Notes, and as a condition to and in consideration of such participation and purchase, IRX desires
to enter into this Agreement providing for the payment of a royalty to the Investor Entity.


 


NOW,
THEREFORE, for good and valuable consideration, the sufficiency of which is hereby acknowledged, the parties hereby agree
as follows:


 


1.
If and at such time or times as IRX shall be obligated to pay to the Research Foundation Running Royalties in respect of a percentage
of Gross Sales of the Licensed Product under and in accordance with the License Agreements, it shall be obligated to concurrently
pay to the Investor Entity an amount (the “Investor Royalty Share”) equal to [***] percent ([***]%) of Gross
Sales (as determined in accordance with the License Agreements) of Licensed Product made, used, leased or sold by or for IRX and
its sublicensees, provided


 




    	 



     


    

 


(a)
that if it is necessary for IRX acquire one or more royalty-bearing licenses from third parties in order to fully exercise the
rights granted by Research Foundation under the License Agreements, or in the event that IRX shall sell or lease Combination Product(s)
consisting of a Licensed Product and one or more additional active ingredients which must be purchased outright by IRX for use
in the composition of such Combination Product, then in either such event, IRX shall be entitled to credit against the payment
due to the Investor Entity under this Section 1 cumulative amounts equal to the royalties and/or the price actually paid to third
parties on such account(s), up to a maximum of [***] percent ([***]%) of the amounts otherwise due to the Investor Entity under
this Section 1; and further provided


 


(b)
[***]


 


The
Investor Royalty Share shall be paid by IRX [***].


 


2.
IRX shall keep full, true and accurate books of account containing all particulars that may be necessary for the purpose of showing
the amounts payable to the Investor Entity hereunder, and said books and the supporting data shall be open at all reasonable times
for five (5) years following the end of the calendar year to which they pertain, to the inspection of Investor Entity or its agents
for the purpose of verifying IRX’s royalty statement or compliance in other respects with this Agreement.


 


3.
IRX shall, concurrently with the furnishing of such reports as are provided to Research Foundation under Section 5.2 of the License
Agreement, furnish copies thereof to the Investor Entity.


 


4.
With each such report submitted, and concurrently with payment to Research Foundation of the royalties due and payable under the
License Agreements accompanying such reports, as provided in Section 5.3 of the License Agreements, IRX shall pay to Investor
Entity the royalties due and payable under this Agreement. If no royalties shall be due, IRX shall so report.


 


5.
Royalty payments shall be paid in United States dollars in New York, New York. If any currency conversion shall be required in
connection with the payment of royalties hereunder, such conversion shall be made by using the exchange rate prevailing at the
Chase Manhattan Bank (N.A.) on the last business day of the calendar quarter reporting period to which such royalty payment relate.


 


6.
The royalty payments set forth in this Agreement shall, if overdue, bear interest until payment at a [***] percent rate ([***]%)
per annum rate. The payment of such interest shall not foreclose the Investor Entity from exercising any other rights it may have
as a consequence of the lateness of the payment.


 


7.
This Agreement shall be governed by the laws of the State of Delaware (U.S.A.), without giving effect to the principles of conflict
of laws thereof and without regard to where the Agreement is executed or to be performed. The parties hereby submit to the personal
jurisdiction of the state and federal courts located in New York City, New York (U.S.A.), and agree that any cause of action brought
under or related to this Agreement by either Party shall be brought exclusively in the state or federal courts sitting in New
York City, New York (U.S.A.).


 




    	 



     


    

 


8.
All notices, consents, waivers, and other communications under this Agreement must be in writing and will be deemed to have been
duly given when (a) delivered by hand (with written confirmation of receipt), (b) sent by telecopier (with written confirmation
of receipt), provided that a hard copy is also sent by U.S. mail, or (c) when received by the addressee, if sent by a nationally
recognized overnight delivery service (receipt requested) or sent by certified U.S. mail (return receipt requested), in each case
to the appropriate addresses and telecopier numbers set forth below (or to such other addresses and telecopier numbers as a party
may designate by notice to the other parties in accordance with this paragraph).


 


9.
Neither this Agreement nor any interest herein may be assigned, in whole or in part, by any party without the prior written consent
of the other parties.


 


10.
It is understood by the parties that this Agreement constitutes the complete agreement between the parties with respect to the
subject matter hereof. This Agreement may not be amended, modified, or waived unless in writing signed by the party or parties
against whom enforcement of the amendment or modification is sought or, in the case of a waiver, by the party waiving compliance.


 


11.
The Investor Entity acknowledges and agrees that this Agreement and the terms hereof are strictly confidential, and that it shall
not voluntarily discuss, publicize or disseminate or cause to be discussed, publicized or disseminated any information relating
to the terms, contents and execution of this Agreement; provided, however, the Investor Entity may disclose the
foregoing for valid business purposes to its investors, counsel, accountants and other representatives with a need to know provided
further that each recipient is apprised in advance of the confidential nature of such disclosure and such recipient’s
obligation to maintain such confidentiality and that Investor Entity shall be responsible for any breach or violation of such
confidentiality obligation by any such recipient.


 


12.
This Agreement may be executed in counterparts, each of which will be deemed an original, but all of which together will constitute
the same agreement.


 


[signatures
follow]


 




    	 



     


    

 


 


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


 


	 	IRX
    THERAPEUTICS, INC.
	 	 
	 	By:
    	/s/
    John W. Hadden II
	 	Name:
    	John
    W. Hadden II
	 	Title:
    	President
    & CEO
	 	 	 
	 	Address
    and fax no. for notices:
	 	 
	 	140
    West 57th Street, Suite 3D
	 	New
    York, NY 10019
	 	Fax:
    (212) 582-3659
	 	 
	 	IRX
    2012 SENIOR NOTES, LLC
	 	 	 
	 	By:
    	/s/
    Jeffrey Hwang
	 	Name:
    	Jeffrey
    Hwang
	 	Title:
    	Managing
    Member
	 	 	 
	 	Address
    and fax no. for notices:
	 	 
	 	140
    West 57th Street, Suite 3D
	 	New
    York, NY 10019
	 	Fax:
    (212) 582-3659