Blueprint






Exhibit 10.25


 



CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED
BY [*****], HAS BEEN OMITTED BECAUSE AZURRX BIOPHARMA, INC. HAS
DETERMINED THE INFORMATION (I) IS NOT MATERIAL AND (II) WOULD
LIKELY CAUSE COMPETITIVE HARM TO AZURRX BIOPHARMA, INC.
IF PUBLICLY DISCLOSED.


 







ASSET PURCHASE AGREEMENT

 


This
ASSET PURCHASE AGREEMENT
(“Agreement”),
dated March 27, 2019 (the “Effective Date”), is entered into
by and among Laboratoires Mayoly Spindler SAS, a corporation
created and organized under French laws (“Seller”) and AzurRx BioPharma,
Inc., a Delaware corporation (“Buyer”). Each of the Seller and
the Buyer are referred to herein as a Party, and collectively as
the Parties.

 



Background

 


WHEREAS, the Seller and AzurRx BioPharma
SAS (formerly ProteaBio Europe SAS), Buyer’s wholly-owned
subsidiary (“AzurRx
SAS”), are parties to that certain Joint Development
and License Agreement, dated as of January 1, 2014 the
(“JDLA”).

 


WHEREAS, the JDLA is being terminated by
AzurRx SAS/the Buyer by mutual written agreement of the AzurRx
SAS/Buyer and Seller, as of the Effective Date pursuant to that
certain Termination Agreement in substantially the form attached
hereto as Exhibit A (the
“Termination
Agreement”).

 


WHEREAS, immediately after (but for
clarity, on the same date) the Termination Agreement becomes
effective, Seller desires to sell, transfer and assign to Buyer,
and Buyer desires to acquire and assume from Seller, all of the
Purchased Assets and Assumed Liabilities, all as more specifically
provided herein;

 


WHEREAS, the Purchased Assets will
include all of Seller’s and/or its Affiliates’ right,
title and interest in and to any and all JDLA Assets (as defined
below);

 


WHEREAS, upon consummation of the sale
of the Purchased Assets from Seller to Buyer, Buyer and Seller
shall enter into that certain Patent License Agreement, in
substantially the form attached hereto as Exhibit B (the “License Agreement”);
and

 


NOW, THEREFORE, in consideration of the
foregoing and the representations, warranties, covenants and
agreements contained herein, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby
acknowledged, the Parties, intending to be legally bound, hereby
agree as follows:

 



ARTICLE 1



DEFINITIONS

 

Section
1.1 Definitions

 


All
terms not defined below are as defined elsewhere in this
Agreement.

 


“2019 IP Costs” means the total
amount of fees paid by Seller to Third Parties in connection with
the maintenance of the Patent Rights in the Purchased Assets from
January 1, 2019 through the Effective Date.

 


“2019 Escrow Stock” means 200,240
Restricted Shares, which is equal to the number of Buyer’s
Restricted Shares that are equal to (a) € 400,000
divided by (b) $2.29,
calculated at an exchange rate of $.872314 to
€1.

 


 





CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED
BY [*****], HAS BEEN OMITTED BECAUSE AZURRX BIOPHARMA, INC. HAS
DETERMINED THE INFORMATION (I) IS NOT MATERIAL AND (II) WOULD
LIKELY CAUSE COMPETITIVE HARM TO AZURRX BIOPHARMA, INC.
IF PUBLICLY DISCLOSED.


 

-1-








 





 





“2020 Escrow Stock” means 175,210
Restricted Shares, which is equal to the number of Buyer’s
Restricted Shares that are equal to (a) € 350,000
divided by (b) $2.29,
calculated at an exchange rate of $.872314 to
€1.

 


“Active Ingredient means any lipase
produced by the "yarrowia
lipolytica recombinant strain with 6 copies of the lip2 gene
permitting to overexpress the acid resistant Yarrovia Lipolitica
LIP2 lipase". This strain has been deposited in 2005 at CNCM
(Collection Nationale de Culture
de Microorganismes) under the reference number
I-3542.

 


“Affiliate” means, with
respect to any Person, any other Person which directly or
indirectly controls, is controlled by, or is under common control
with, such Person. A corporation or other entity shall be regarded
as in control of another corporation or entity if it owns or
directly or indirectly controls more than 50% of the voting
securities or other ownership interest of the other corporation or
entity, or if it possesses, directly or indirectly, the power to
direct or cause the direction of the management and policies of the
corporation or other entity.

 


“Applicable Laws” means any laws,
treaties, statutes, ordinances, judgments, decrees, directives,
rules, injunctions, writs, regulations, binding arbitration
rulings, orders, judicial or administrative interpretations or
authorization of any Governmental Authority applicable to the
transactions contemplated under this Agreement, the manufacture,
distribution, promotion, marketing, handling, storage and/or sale
of the Active Ingredient or of a Product, or to any other matters
set forth in this Agreement; provided that, it shall be understood
that with respect to the general operation of Seller’s
business, the applicable laws of France shall be the Applicable
Laws.

 


“Assumed Liabilities” means any
Liabilities of the Seller including:

 


a) any
and all Liabilities related to the Purchased Assets, solely and
exclusively to the extent arising and relating to the period
beginning after the Effective Date;

 


b) any
and all Liabilities with respect to taxes due solely and
exclusively (i) in connection with the Purchased Assets and (ii)
that are arising and relating to the period beginning after the
Effective Date; and

 


c) 
any and all Liabilities to the
extent arising out of and relating to events, transactions, facts,
acts or omissions which occurred after the Effective Date, but only
to the extent such Liabilities solely and exclusively relate to the
Purchased Assets.

 


“Business Day” means any day other
than a Saturday, Sunday or other day on which banks in Chatou,
France or New York, New York, USA, are permitted or required to
close by law or regulation.

 


“Books and Records” means all of
the original (or if unavailable a copy) documents, lists, files,
records, research, studies, information and correspondence with
Governmental Authorities in whatever form kept, including, but not
limited to, electronic form, in each case, relating to the
Development Program, the Active Ingredient, the Product or the
Purchased Assets, including, but not limited to, all Regulatory
Documentation, all preclinical data, studies, records, reports and
research and all clinical study reports, all data sets, copies of
all trial master files, all financial disclosure forms,
pharmacovigilance databases and other similar books and records and
any such records relating to Intellectual Property
Rights.

 


“Buyer Stock” means the common
stock of Buyer.

 


 





CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED
BY [*****], HAS BEEN OMITTED BECAUSE AZURRX BIOPHARMA, INC. HAS
DETERMINED THE INFORMATION (I) IS NOT MATERIAL AND (II) WOULD
LIKELY CAUSE COMPETITIVE HARM TO AZURRX BIOPHARMA, INC.
IF PUBLICLY DISCLOSED.


 

-2-








 







 


“Closing Payment Stock” means
400,481 Restricted Shares, which is equal to the number of
Buyer’s Restricted Shares that are equal to (a) €
800,000 divided by (b)
$2.29, calculated at an exchange rate of $.872314 to
€1.

 


“Control” or “Controlled” means, with respect to
any intellectual property right or other tangible or intangible
property, that a Party or one of its Affiliates owns or has a
license or sublicense to such item or right, and has the ability to
grant access, license or sublicense in or to such right without
violating the terms of any agreement or other arrangement with any
Third Party.

 


“Development Program” shall have
the definition given to such term in the JDLA.

 


“Encumbrance” means any mortgage,
charge, lien, security interest, easement, right of way, pledge or
encumbrance of any nature whatsoever.

 


“Escrow Stock” means the 2019
Escrow Stock and the 2020 Escrow Stock.

 


“Excluded Liabilities” means any
and all Liabilities of Seller and/or any of its Affiliates that are
not expressly included in the definition of Assumed Liabilities,
including, but not limited to:

 


(a)  any
and all Liabilities relating to the Purchased Assets to the extent
arising prior to or on the Effective Date;

 


(b)  any
and all Liabilities with respect to taxes that arose prior to or on
the Effective Date;

 


(c)  any
and all Liabilities arising out of or otherwise relating to the
employment or service of any person;

 


(d)  any
and all Liabilities under this Agreement or incurred in connection
with the negotiation or consummation of this
Agreement;

 


(e) 
any and all Liabilities to the
extent arising out of events, transactions, facts, acts or
omissions which occurred prior to or on the Effective
Date;

 


(f)  any
Liabilities related to assets that are not Purchased
Assets;

 


(g)  all
Liabilities to [*****] with respect to the Patent Rights;
and

 


(g)  any
and all Liabilities for performance under the JDLA prior to the
Effective Date as defined in the Termination
Agreement.

 


 “Fundamental
Representations” means Section 4.1
(“Organization; Authority; Execution and Delivery”),
Section 4.2
(“Consents; No Violation, Etc.”) or Section 4.4 (“Title to
Purchased Assets”) (collectively, the “Fundamental
Representations”)).

 


“Governmental Authority” means any
court, governmental agency, department or commission or other
governmental authority or instrumentality, including, but not
limited to, the United States Food and Drug
Administration.

 


“INDs and CTAs” means any and all
investigational new drug applications and clinical trial
applications with respect to the Product.

 


 





CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED
BY [*****], HAS BEEN OMITTED BECAUSE AZURRX BIOPHARMA, INC. HAS
DETERMINED THE INFORMATION (I) IS NOT MATERIAL AND (II) WOULD
LIKELY CAUSE COMPETITIVE HARM TO AZURRX BIOPHARMA, INC.
IF PUBLICLY DISCLOSED.


 



-3-








 





 





“INRA Consent” means the consent to
assignment of the Reciprocal License from Seller to Buyer, attached
hereto as Exhibit G.

 


“Intellectual Property Rights”
means all Patent Rights, copyrights, trademarks, service marks,
service names, or trade names, including any applications or
registrations for any of the foregoing, or extensions, renewals,
continuations, continuations in part, divisionals, reexaminations,
or re-issues thereof, or amendments or modifications thereto,
brandmarks, brand names, trade dress, labels, logos, know-how
(including the Know-How), show-how, technical and non-technical
information, trade secrets, formulae, techniques, sketches,
drawings, models, inventions, designs, specifications, processes,
apparatus, equipment, databases, research, experimental work,
development, pharmacology and clinical data, software programs and
applications, software source documents, third-party licenses, and
any similar type of proprietary intellectual property right vesting
in the owner and/or licensee thereof pursuant to the Applicable
Laws or regulations of any relevant jurisdiction or under any
applicable license or contract, whether now existing or hereafter
created, together with all modifications, enhancements and
improvements thereto, in each case, to the extent relating to the
Development Program, the Active Ingredient, the Product or the
other Purchased Assets.

 


“JDLA Assets” means all Books and
Records, Regulatory Documentation, Technology and/or Intellectual
Property Rights to the extent related to or developed under the
JDLA, including, but not limited to, any right, title or interest
in such assets vested in Seller or any of its Affiliates (i) as a
result of the termination of the JDLA pursuant to the Termination
Agreement or (ii) under Section 12.1.7 of the JDLA.

 


“Know-How” means any and all
methods, devices, Technology, trade secrets, inventions,
compositions, designs, formulae, know-how, show-how, technical and
training manuals and documentation and other information, including
processes and analytical methodologies used in development,
testing, analysis and manufacture, and medical, clinical and
toxicological testing as well as other scientific data, which is
related to, made, developed, conceived, and/or used in connection
with the Development Program, the Active Ingredient, the Product,
or any ingredient thereof, and/or the formulation, development,
registration, manufacture, packaging, labeling, import, export,
receipt, shipment, storage, use, pricing or sale of the
Product.

 


“Liabilities” means any and all
debts, liabilities and obligations, whether accrued or fixed,
absolute or contingent, matured or unmatured, or determined or
determinable, including those arising under any law, action or
governmental order and those arising under any contract, agreement,
arrangement, commitment or undertaking, or otherwise.

 


“Losses” means, collectively, any
and all damages, losses, taxes, Liabilities, claims judgments,
penalties, costs and expenses (including reasonable legal fees and
expenses).

 


“Parties” means collectively the
Seller and Buyer.

 


“Party” means either the Seller or
Buyer.

 


“Patent Rights” means
patents (including the Patents), patent applications, certificates
of invention, or applications for certificates of invention,
together with any extensions, registrations, confirmations,
reissues, divisions, continuations or continuations-in-part,
re-examinations, renewals, and foreign counterparts
thereof.

 

 




CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED
BY [*****], HAS BEEN OMITTED BECAUSE AZURRX BIOPHARMA, INC. HAS
DETERMINED THE INFORMATION (I) IS NOT MATERIAL AND (II) WOULD
LIKELY CAUSE COMPETITIVE HARM TO AZURRX BIOPHARMA, INC.
IF PUBLICLY DISCLOSED.


 

-4-








 





 





“Patents” means (a) all patents and
patent applications licensed to Seller pursuant to the Reciprocal
License and (b) patents and patent applications proprietary to
Seller and listed on Exhibit
D.

 


“Person” means an individual,
corporation, partnership, limited liability company, trust,
business trust, association, joint venture, non-profit
organization, pool, syndicate, sole proprietorship, unincorporated
organization, university, Governmental Authority or any other form
of entity not specifically listed herein.

 


“Product” means any product
utilizing the Active Ingredient.

 


“Purchased Assets”
means:

 

(a)  the
Intellectual Property Rights;

 

(b)  the
Transferred Contracts;

 

(c)  any
inventories of Active Ingredient and/or Product or other supplies
and other tangible assets used in connection with the development
of the Active Ingredient and/or the Product;

 

(d) 
Regulatory Documentation;

 

(e)  the
Books and Records;

 

(f)  all
rights and claims of the Seller, whether mature, contingent or
otherwise, against any Person, whether in tort, contract or
otherwise, including, without limitation, causes of action,
unliquidated rights and claims under or pursuant to all warranties,
representations and guarantees made by manufacturers, suppliers or
vendors, claims for refunds, rights of off-set and credits of all
kinds and all other general intangibles, each to the extent
relating to the Purchased Assets; provided, however, that such rights and
claims shall not include any rights and claims of Seller under this
Agreement;

 

(h)  all
other assets used or useful in the development of the Active
Ingredient and/or a Product, whether or not reflected on the books
and records of the Seller to the extent developed under or in
connection with the JDLA;

 

(i)  the
JDLA Assets; and

 

(i)  all
goodwill related to any of the foregoing.

 


“Reciprocal License” means that
certain Reciprocal License Agreement, dated as of February 2, 2006
between Seller and INRA Transfert as representative for Institut
National de la Recherche Agronomique (“INRA”) and Centre National de la
Recherche (“CNRS”), as amended.

 


“Regulatory Documentation” means
all regulatory applications, submissions and approvals and rights
of reference for the Active Ingredient and/or Products, and all
correspondence with any Governmental Authority relating to the
Active Ingredient and/or the Products or any of the foregoing
regulatory applications, submissions, rights of reference or
approvals; including but not limited to any INDs or
CTAs.

 


 





CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED
BY [*****], HAS BEEN OMITTED BECAUSE AZURRX BIOPHARMA, INC. HAS
DETERMINED THE INFORMATION (I) IS NOT MATERIAL AND (II) WOULD
LIKELY CAUSE COMPETITIVE HARM TO AZURRX BIOPHARMA, INC.
IF PUBLICLY DISCLOSED.


 

-5-








 





 





“Restricted Shares” shares that
have not been registered for sale under applicable United States
security laws. A description of typical requirements related to
Restricted Shares is included as Exhibit G.

 


“Shared Costs” has the meaning given to that term in the
JDLA.

 


“Technology” means inventions, trade secrets, Know-How,
data and Intellectual Property, of any kind, including any
proprietary materials (such as the “yarrowia lipolytica
recombinant strain with 6 copies of
the lip2 gene permitting to overexpress the acid resistant Yarrovia
Lipolitica LIP2 lipase”), compounds, reagents, techniques,
analytical methodology, or processes that are not included in
Patent Rights.

 


“Termination Agreement Amount”
means the amount of Shared Costs due to Buyer from Seller in
connection with the JDLA that is in excess of the three hundred
thirty four thousand euro (334.000€) (excluding tax through
the Effective Date) amount that was already paid by Seller in 2018
under the JDLA.

 


“Third Party” means any legal
person, entity or organization other than Buyer, Seller or an
Affiliate of either Party.

 


“Trading Day” means a day on which
Buyer Stock trades on the NASDAQ exchange.

 


“Transferred Contracts” means (a)
the Reciprocal License and (b) the other contracts listed on
Exhibit C, if
any.

 

Section
1.2 Interpretation. When used in this
Agreement the words “include”, “includes”
and “including” will be deemed to be followed by the
words “without limitation.” Any terms defined in the
singular will have a comparable meaning when used in the plural,
and vice-versa.

 

Section
1.3 Currency. All currency amounts referred
to in this Agreement are in Euros, unless otherwise
specified.

 



ARTICLE 2



PURCHASE AND SALE OF ASSETS

 

Section
2.1 Purchase and Sale. Seller hereby sells,
assigns, transfers, conveys and delivers to Buyer, and Buyer hereby
purchases, acquires and accepts, all right, title and interest in
and to the Purchased Assets, free and clear of all
Encumbrances.

 

Section
2.2 Assumption of Assumed Liabilities; Excluded
Liabilities. Buyer hereby assumes and will be liable for
only the Assumed Liabilities. Buyer will not assume or be liable
for any of the Excluded Liabilities. Seller shall pay, discharge
and satisfy, as they become due, all Excluded
Liabilities.

 

Section
2.3 Deliveries. On the Effective Date,
Seller will deliver to Buyer (a) any tangible materials included in
the Purchased Assets, (b) copies (in the format in which they are
maintained by Seller) of all Books and Records included in the
Purchased Assets and (c) a duly executed copy of the Patent
Assignment Agreement, substantially in the form attached hereto as
Exhibit F.

 


 





CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED
BY [*****], HAS BEEN OMITTED BECAUSE AZURRX BIOPHARMA, INC. HAS
DETERMINED THE INFORMATION (I) IS NOT MATERIAL AND (II) WOULD
LIKELY CAUSE COMPETITIVE HARM TO AZURRX BIOPHARMA, INC.
IF PUBLICLY DISCLOSED.


 

-6-








 






 

 

Section
2.4 Wrong Pockets. If at any time or from
time to time after the Effective Date, Seller or any of its
Affiliates, as the case may be, shall receive or otherwise possess
any asset that should belong to Buyer pursuant to this Agreement or
that may be necessary or useful to exploit the Purchased Assets,
Seller or its Affiliate, as applicable, shall promptly transfer, or
cause to be transferred, such asset to Buyer. Prior to any such
transfer, the Person receiving or possessing such asset shall hold
such asset in trust for Buyer.

 



ARTICLE 3



FINANCIAL TERMS

 

Section
3.1 Purchase Price.

 

(a) As consideration
for the Purchased Assets, in addition to Buyer’s assumption
of the Assumed Liabilities, Buyer shall forgive all amount of
Shared Costs owed from Seller to Buyer that are in excess of the
Termination Agreement Amount; and Buyer will pay to Seller (i) the
Closing Payment Stock; (ii) a total of € 1,500,000 in cash
and Restricted Shares of Buyer Stock payable on the dates and in
the form set forth in the below table (each a “Milestone Date”); and (iii) the 2019 IP
Costs, which will be paid by Buyer within thirty (30) days of the
receipt of an invoice along with reasonable supporting
documentation. Each payment contemplated below (each a
“Milestone
Payment”) shall be payable in the form indicated in
the column below labeled “Consideration Mix”. Any
Milestone Payment payable in Buyer Stock, in whole or in party,
will be released from escrow by the Escrow Holder (defined below)
within five (5) Business Days of the occurrence of a Milestone Date
to Seller. The Closing Payment Stock and all amounts set forth
below paid for in Buyer Stock shall be referred to herein as (the
“Equity
Consideration”). For clarity, the Restricted Shares
that will be issued to Seller in connection with each Milestone
Payment will be issued along with the Closing Payment Stock, will
be registered with such shares pursuant to Section 3.2 and will be
released in accordance with Section 3.1(b) below.

 


	


Milestone


 

	


Consideration Amount


 

	


Consideration Mix


 


	

December
31, 2019


	

€
800,000


	

(a)
€ 400,000 in cash and (b) the 2019 Escrow
Stock.



	

December
31, 2020


	

€
700,000


	

(a)
€ 350,000 in cash and (b) the 2020 Escrow
Stock.








 

 


For the
avoidance of doubt, the Equity Consideration for a given Milestone
Payment will be issued one-time only. Any shares of Buyer Stock to
be issued pursuant to this Agreement have not been registered under
the Securities Act of 1933, as amended (the “Securities Act”), or state
securities laws and may not be offered or sold in the United States
absent registration with the Securities and Exchange Commission
(“SEC”) or an
applicable exemption from such registration requirements. The
issuance of Buyer Stock pursuant to this Agreement is subject to
the representations, covenants, restrictions and other terms and
conditions set forth in Exhibit
E, all of which are hereby incorporated by reference. Seller
hereby represents and warrants that as of the Effective Date, and
each date that any Equity Consideration is issued to it, that the
representations and warranties in Exhibit E are true, complete and
correct.









 





CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED
BY [*****], HAS BEEN OMITTED BECAUSE AZURRX BIOPHARMA, INC. HAS
DETERMINED THE INFORMATION (I) IS NOT MATERIAL AND (II) WOULD
LIKELY CAUSE COMPETITIVE HARM TO AZURRX BIOPHARMA, INC.
IF PUBLICLY DISCLOSED.


 

-7-








 





 




(b) On the Effective
Date, certificates issued in the name of the Seller for the Escrow
Stock shall be held by the Secretary of the Buyer as escrow holder
(the “Escrow
Holder”), until the respective Milestone Date (the
“Escrow
Period”). During the applicable Escrow Period, the
Escrow Agent shall hold and keep such certificates representing the
Escrow Shares in its possession and such shares shall not be sold,
assigned, transferred, pledged, or otherwise hypothecated by it
during the Escrow Period. 


 





(i) The
Escrow Holder will disburse the Escrow Shares on the applicable
Milestone Dates in accordance with Section 3.1(a) above. Upon
disbursement of the Escrow Shares as set forth in this Section
3.1(b), the Escrow Account shall terminate.


 


(ii)
The Escrow Holder shall be obligated only for the performance of
such duties as are specifically set forth herein and may rely and
shall be protected in relying or refraining from acting on any
instrument reasonably believed by the Escrow Holder to be genuine
and to have been signed or presented by the proper Party or
Parties. The Escrow Holder shall not be liable for any act that
he/she may do or omit to do hereunder as Escrow Holder while acting
in good faith and in the exercise of his/her own good judgment, and
any act done or omitted by the Escrow Holder pursuant to the advice
of his/her own attorneys shall be conclusive evidence of such good
faith.


 


(iii)
The Seller and Buyer hereby jointly and severally expressly agree
to indemnify and hold harmless the Escrow Holder and his/her
designees against any and all claims, losses, liabilities, damages,
deficiencies, costs and expenses, including reasonable
attorneys’ fees and expenses of investigation and defense,
incurred or suffered by the Escrow Holder and his/her designees,
directly or indirectly, as a result of any of his/her actions or
omissions or those of his/her designees while acting in good faith
and in the exercise of his/her judgment under this Agreement or
written instructions from the Seller or Buyer.


 


(iv)
The Escrow Holder’s responsibilities as Escrow Holder
hereunder shall terminate if he/she shall resign by written notice
to each Party. In the event of any such termination, the Parties
shall jointly appoint a successor Escrow Holder.


 


(v) The
Escrow Holder is expressly authorized to, and hereby does, delegate
his/her duties as Escrow Holder hereunder to the law firm of
Disclosure Law Group, a Professional Corporation, which delegation
shall survive his/her resignation as Escrow Holder.


 


(vi)
If, from time to time during the Escrow Period, there is
(A) any cash or stock dividend, stock split or other change
with respect to the Escrow Shares being held in escrow or
(B) any merger or sale of all or substantially all of the
Buyer’s assets or other acquisition of the Buyer, any and all
new, substituted or additional securities or property to which the
Seller is entitled by reason of the Seller’s ownership of the
Escrow Shares being held in escrow shall be deposited with the
Escrow Holder and shall be included within the definition of Escrow
Shares. All numbers contained in, and all calculations required to
be made pursuant to, this Agreement with respect to the Escrow
Shares shall be adjusted as appropriate to reflect the events set
forth in subclauses (A) and (B) or a similar transaction
effected by the Buyer after the date hereof.

 




Section
3.2 Registration Statement. Buyer shall, no
later than thirty (30) days after the issuance of the Closing
Payment Stock and within 30 days of the issuance of each
tranche

 


 





CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED
BY [*****], HAS BEEN OMITTED BECAUSE AZURRX BIOPHARMA, INC. HAS
DETERMINED THE INFORMATION (I) IS NOT MATERIAL AND (II) WOULD
LIKELY CAUSE COMPETITIVE HARM TO AZURRX BIOPHARMA, INC.
IF PUBLICLY DISCLOSED.


 

-8-








 





 





of
Buyer Stocks issued in relation to the Milestone Payments (to the
extent not previously registered), file a registration statement
(the “Registration
Statement”) under the Securities Act of 1933, as
amended (the “Securities
Act”) for the sale by Seller of the Closing Payment
Stock. The Registration Statement shall comply as to form in all
material respects with applicable rules of the Securities Exchange
Commission (“SEC”) providing for offers and
sales by Seller of the Closing Payment Stock.

 

Section
3.3 Taxes. Each Party agrees to report (and
to cause its Affiliates to report) the transactions contemplated by
this Agreement in a manner consistent with Applicable Laws and with
the terms of this Agreement, and agrees not to take any position
inconsistent therewith on any tax return, in any tax refund claim,
in any litigation or otherwise. For the avoidance of doubt, any and
all Liabilities with respect to taxes arising from Seller’s
ownership of the Purchased Assets prior to or on the Effective Date
will be for the account of Seller, and any and all Liabilities with
respect to taxes arising from ownership of the Purchased Assets
after the Effective Date will be for the account of Buyer. Seller,
at their sole cost and expense, shall (A) prepare and timely file
all tax returns to be filed on or prior to the Effective Date with
respect to the Purchased Assets, and (B) timely pay all taxes that
are shown as payable with respect to such tax returns. All such tax
returns shall be prepared in accordance with existing procedures,
practices, and accounting methods of the Seller. Each Party will
bear fifty percent (50%) of any transfer, sales, value added, or
stamp duty taxes payable in connection with the transactions
contemplated hereby (collectively, “Transfer Taxes”). The Party
required by Applicable Laws shall, at its own expense, prepare and
file all necessary tax returns and other documentation with respect
to all such Transfer Taxes, promptly provide the other Party such
tax returns and related documentation and, to the extent required
by Applicable Laws, Seller or Buyer, as applicable, shall join in
the preparation and execution of any such tax returns and other
documentation. Buyer shall have no obligation for any capital gains
or other income taxes owed by Seller, whether as a result of the
transaction or otherwise. [*****].

 

Section
3.4 Fees for Patent Assignment; Assistance with
Patent Assignment. Buyer shall be responsible for any and
all fees associated with transferring title of Patents purchased
hereunder from Seller to Buyer, including, but not limited to, the
formalities requested by WIPO for patent assignment from Seller to
Buyer or by any other Government Authority. Seller will reasonably
assist Buyer with the transfer of any such Patents, including by
executing any consents, assignments or other documents reasonably
requested by Buyer in connection with such transfer. Buyer and
Seller will cooperate in good faith to transfer such Patents from
Seller to Buyer as soon as reasonably practicable after the
Effective Date. During any period in which the Patents remain in
Seller’s name, Seller will maintain, or cause to be
maintained, such Patents in substantially the same manner as they
had been maintained prior to the Effective Date. Buyer will
reimburse Seller for any reasonable and documented maintenance fees
that incurs with respect to the Patents during this period. Seller
will share with Buyer any invoices related to the maintenance of
the Patents that it receives within two (2) Business Days of
receiving same.

 



ARTICLE 4



REPRESENTATIONS AND WARRANTIES OF SELLER

 


Seller
hereby represents and warrants to Buyer as follows:

 

 





CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED
BY [*****], HAS BEEN OMITTED BECAUSE AZURRX BIOPHARMA, INC. HAS
DETERMINED THE INFORMATION (I) IS NOT MATERIAL AND (II) WOULD
LIKELY CAUSE COMPETITIVE HARM TO AZURRX BIOPHARMA, INC.
IF PUBLICLY DISCLOSED.


 

-9-








 





 




Section
4.1 Organization; Authority; Execution and
Delivery. Seller is a company duly organized, validity
existing and in good standing under the laws of the country of
France. Seller has the requisite corporate power and authority to
enter into this Agreement and to consummate the transaction
contemplated hereby. The execution and delivery of this Agreement
by Seller and the consummation of the transactions contemplated
hereby have been validly authorized. This Agreement has been
executed and delivered by Seller and, assuming the due
authorization, execution and delivery of this Agreement by Buyer,
will constitute the legal and binding obligation of Seller,
enforceable against it in accordance with its terms, subject to
applicable bankruptcy, insolvency, reorganization, moratorium,
fraudulent transfer and other similar laws affecting
creditors’ rights generally from time to time in effect and
to general principles of equity (including concepts of materiality,
reasonableness, good faith and fair dealing) regardless of whether
considered in a proceeding in equity or at law.

 

Section
4.2 Consents; No Violation, Etc. The
execution and delivery of this Agreement do not, and the
consummation of the transactions contemplated hereby (including the
transfer of the Purchased Assets to Buyer) and the compliance with
the terms hereof will not: (i) violate any Applicable Laws, (ii)
conflict with any provision of the certificate of incorporation or
by-laws (or similar organizational document) of Seller, (iii)
conflict with or violate any Transferred Contract or any other
contract to which Seller is a party or by which it is otherwise
bound or (iv) require Seller to obtain any approval, authorization,
consent, license, exemption, filing or registration from or with
any court, arbitrator, Governmental Authority or pursuant to any
contract by which Seller is bound or that otherwise relates to any
of the Purchased Assets or the Product, except for the INRA
Consent, which has already been obtained.

 

Section
4.3 Litigation. Prior to and as of the
Effective Date, there are no claims, suits, actions or other
proceedings pending or threatened in writing against Seller at law
or in equity before or by any Governmental Authority, domestic or
foreign, involving or related to the Purchased Assets or the
Assumed Liabilities or which may in any way adversely affect the
performance of Seller’s obligations under this Agreement or
the transactions contemplated hereby.

 

Section
4.4 Title to Purchased Assets. Immediately
prior to the transfer of the Purchased Assets to Buyer, Seller is
the sole and exclusive owner of, has good and valid title to all of
the Purchased Assets, free and clear of all Encumbrances, and has
the right to convey the same to Buyer without conflicting with the
terms of any contract to which Seller or any of its Affiliates is
bound. No Third Party holds any license, option, reversionary
interest or other right with respect to any of the Purchased
Assets, the Active Ingredient or the Product.

 

Section
4.5 No Undisclosed Liabilities. There are no
Liabilities related to the Purchased Assets other than (i) the
Assumed Liabilities; and/or (ii) the Excluded Liabilities; and/or
(iii) Liabilities arising after the Effective Date pursuant to the
express terms of executory Transferred Contracts identified in
Exhibit C.

 

Section
4.6 Transferred Contracts. Seller has
delivered to Buyer complete copies of each of the Transferred
Contracts, including any and all amendments thereto and (i) each
Transferred Contract is valid, binding and enforceable on Seller
(subject to applicable bankruptcy, insolvency, reorganization,
moratorium, fraudulent transfer and other similar laws affecting
creditors’ rights generally from time to time in effect and
to general principles of equity regardless of whether considered in
a proceeding in equity or at law) and is in full force

 


 





CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED
BY [*****], HAS BEEN OMITTED BECAUSE AZURRX BIOPHARMA, INC. HAS
DETERMINED THE INFORMATION (I) IS NOT MATERIAL AND (II) WOULD
LIKELY CAUSE COMPETITIVE HARM TO AZURRX BIOPHARMA, INC.
IF PUBLICLY DISCLOSED.


 

-10-








 





 





and
effect, (ii) neither Seller (nor to Seller’s knowledge, any
other party to a Transferred Contract) is in material breach or
violation of, or default under, any Transferred Contract and (iii)
no consent of any Person is required in connection with the
assignment of the Transferred Contracts to Buyer pursuant to this
Agreement. Except for the Termination Agreement, the Transferred
Contracts include all agreements between Seller or any of its
Affiliates and another Person with respect to the Development Plan,
JDLA or the Purchased Assets.

 

Section
4.7 Compliance with Applicable Law. The
research and development of the Active Ingredient and the
Technology, including but not limited to any research and
development work performed by or on behalf of Seller under the
JDLA, has at all times been conducted in compliance with all
Applicable Laws. Seller is solely responsible for compliance with
US security laws in relation to the receipt, holding and transfer
of Buyer Stock, including, but not limited to, the Restricted
Shares.

 

Section
4.8 Product Intellectual Property. There are
no Patent Rights that are owned or otherwise Controlled by Seller
or any of its Affiliates that relate to the Active Ingredient, the
Products or the Purchased Assets, other than the Patents that are
licensed listed on Exhibit
D. All of the Intellectual Property Rights included in the
Purchased Assets are valid, enforceable and in full force and
effect. To Seller’s knowledge, the use of the Active
Ingredient and the Technology in connection with the development,
manufacture, use, sale and commercialization of any Products does
not and would not infringe, misappropriate or violate any patent,
copyright, trade secret or other intellectual property or
contractual right of any Third Party, in each case, as of the
Effective Date. Seller declares that prior and until the Effective
Date it has not received any charge, complaint, claim, demand, or
notice alleging any such infringement, misappropriation, or
violation (including any claim that Seller must license or refrain
from using any Intellectual Property Rights relating to the
Technology, the Active Ingredient or any Product).

 

Section
4.9 No Other Product or JDLA Related Assets.
Except for the Termination Agreement, the Purchased Assets
constitute all of the assets of Seller or its Affiliates related to
the Active Ingredient, the Products, the Development Plan and/or
the JDLA. Except for the Purchased Assets, neither Seller nor any
of its Affiliates holds or retains any ownership, license, option,
right of reference or other right or interest in or to any patent,
copyright, trade secret, trademark, data, know-how, contractual
right or other tangible or intangible asset that is necessary or
useful for the development or commercialization of the Technology,
any Active Ingredient or any Product.

 

Section
4.10 Taxes. Seller does not have any
Liability with respect to any taxes arising from Seller’s
ownership of the Purchased Assets prior to or on the Effective Date
for which Buyer would reasonably be expected to become liable as a
transferee or that would reasonably be expected to adversely affect
Buyer’s right to use and enjoy any of the Purchased Assets,
free and clear of any Encumbrances, including liens for
Taxes.

 

Section
4.11 No Brokers. Neither Seller nor any of
its Affiliates has any liability or obligation to pay any fees or
commissions to any broker, finder or other agent with respect to
this Agreement for which Buyer could become liable or obligated or
which could result in an Encumbrance being filed against any of the
Purchased Assets.

 

Section
4.12 Books and Records. All of the Books and
Records are complete and accurate in all material
respects.

 


 





CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED
BY [*****], HAS BEEN OMITTED BECAUSE AZURRX BIOPHARMA, INC. HAS
DETERMINED THE INFORMATION (I) IS NOT MATERIAL AND (II) WOULD
LIKELY CAUSE COMPETITIVE HARM TO AZURRX BIOPHARMA, INC.
IF PUBLICLY DISCLOSED.


 

-11-








 





 




Section
4.13 Regulatory Documentation. Seller has
complied in all material respects with all Applicable Laws
pertaining to privacy and security of protected health information
within the Know-How or the Books and Records. Neither Seller nor
any of its Affiliates has received any written communication
alleging any violation of Applicable Laws pertaining to the privacy
and security of protected health information within the Know-How or
the Books and Records.

 

Section
4.14 Intentionally Omitted.

 

Section
4.15 No Other Representations or Warranties.
Except for the representations and warranties of Seller expressly
set forth in this Article
4 and in Exhibit E,
neither Seller nor any other Person makes any other express or
implied representation or warranty on behalf of Seller. Except as
specifically set forth in this Agreement, Seller does not represent
and warrant that (i) the use of Active Ingredient and the
Technology in connection with the development, manufacture, use,
sale and commercialization of any Products does not infringe,
misappropriate or violate any patent, copyright, trade secret or
other intellectual property or contractual right of any Third Party
and (ii) Buyer will be able to (a) commercialize products based on
the Purchased Assets or (b) patent additional intellectual property
rights relating to Technology; provided that, Seller represents and
warrants that neither it, nor any of its Affiliates knows of any
reason why Buyer would be restricted from (1) commercializing
products based on the Purchased Assets (assuming additional
necessary development activities) or (b) patenting additional
intellectual property rights relating to Technology.

 



ARTICLE 5



REPRESENTATIONS AND WARRANTIES OF BUYER

 




Buyer
hereby represents and warrants to Seller as follows:

 

Section
5.1 Organization; Authority; Execution and
Delivery. Buyer is a corporation duly organized, validly
existing and in good standing under the laws of the State of
Delaware. Buyer has the company power and authority to enter into
this Agreement and to consummate the transactions contemplated
hereby. The execution and delivery of this Agreement by Buyer and
the consummation of the transactions contemplated hereby have been
authorized. This Agreement has been executed and delivered by Buyer
and, assuming the due authorization, execution and delivery of this
Agreement by Seller, constitutes the legal and binding obligation
of Buyer, enforceable against Buyer in accordance with its terms,
subject to applicable bankruptcy, insolvency, reorganization,
moratorium, fraudulent transfer and other similar laws affecting
creditors’ rights generally from time to time in effect and
to general principles of equity (including concepts of materiality,
reasonableness, good faith and fair dealing regardless) of whether
considered in a proceeding in equity or at law.

 

Section
5.2 Consents; No Violations, Etc. The
execution and delivery of this Agreement do not, and the
consummation of the transactions contemplated hereby (including the
transfer of the Purchased Assets to Buyer) and the compliance with
the terms hereof will not: (i) violate any Applicable Laws
applicable to Buyer, (ii) conflict with any provision of the
operating agreement (or similar organizational document) of Buyer,
(iii) conflict with or violate any contract to which Buyer or any
of its Affiliates is a party or by which it is otherwise bound or
(iv) require Buyer or any of its Affiliates to obtain any
approval,

 


 





CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED
BY [*****], HAS BEEN OMITTED BECAUSE AZURRX BIOPHARMA, INC. HAS
DETERMINED THE INFORMATION (I) IS NOT MATERIAL AND (II) WOULD
LIKELY CAUSE COMPETITIVE HARM TO AZURRX BIOPHARMA, INC.
IF PUBLICLY DISCLOSED.


 

-12-








 





 





authorization,
consent, license, exemption, filing or registration from or with
any court, arbitrator, Governmental Authority or pursuant to any
contract by which Buyer or any of its Affiliates is
bound.

 

Section
5.3 No Brokers. Neither Buyer nor any of its
Affiliates has any liability or obligation to pay any fees or
commissions to any broker, finder or other agent with respect to
this Agreement for which Seller could become liable or
obligated.

 

Section
5.4 No Other Representations or Warranties.
Except for the representations and warranties of Buyer expressly
set forth in this Article
5, neither Buyer nor any other Person makes any other
express or implied representation or warranty on behalf of Buyer.
Buyer makes no representation or warranty with respect to the steps
that Seller must take to comply with applicable US securities laws
in relation to its receipt, holding or transfer of any Buyer Stock,
including, but not limited to, the Restricted Shares.


 




 



ARTICLE 6



OTHER AGREEMENTS

 

Section
6.1 Restrictive Covenants. As a material
inducement for Buyer to enter into this Agreement, Seller agrees to
the covenants and restrictions set forth below in this Section 6.1, and Seller hereby
acknowledges and agrees that Buyer would not execute and deliver
this Agreement and consummate the transactions contemplated hereby
in the absence of such covenants by Seller. Neither Seller, nor any of its
Affiliates: (i) shall, directly or indirectly, disclose or use or
otherwise exploit for their own benefit or for the benefit of any
other Person, any of the Intellectual Property Rights, Books and
Records or other non-public information included in the Purchased
Assets (collectively, “Confidential Information”), (ii)
develop, manufacture, commercialize or otherwise exploit the Active
Ingredient (in any form), alone or in combination with any other
active or inactive ingredients, in any country in the world, except
as permitted by the License Agreement and (iii) shall safeguard any
Confidential Information in their possession or control by all
reasonable measures. Seller acknowledges and agrees that any and
all Confidential Information will be, as of the Effective Date, the
exclusive property of Buyer.

 

Section
6.2 Further Assurances. Each Party, upon the
request of the other Party and without further consideration, will
do, execute, acknowledge and deliver or cause to be done, executed,
acknowledged or delivered all such further acts, deeds, documents,
assignments, transfers, conveyances, powers of attorney and
assurances as may be reasonably necessary to effect complete
consummation of the transactions contemplated by this Agreement.
Seller will be responsible for all compensation due to [*****], if
any, in connection with the sale of the Patent Rights.

 

Section
6.3 Patent Rights. Within ten (10) business
days of the Effective Date, Seller shall have entered into an
agreement with [*****], in form and substance reasonably acceptable
to Buyer, under which [*****] will assign all of his right, title
and interest in and to the Patent Rights to Seller (the
“After Acquired
Rights”). Upon consummation of the acquisition of the
After Acquired Rights, (i) Seller will and hereby does, assign to
Buyer all of its right title and interest in the After Acquired
Rights to Buyer and (ii) the After Acquired Rights will be included
within the scope of the defined term “Purchased Assets”
and all

 


 





CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED
BY [*****], HAS BEEN OMITTED BECAUSE AZURRX BIOPHARMA, INC. HAS
DETERMINED THE INFORMATION (I) IS NOT MATERIAL AND (II) WOULD
LIKELY CAUSE COMPETITIVE HARM TO AZURRX BIOPHARMA, INC.
IF PUBLICLY DISCLOSED.


 

-13-








 





 





representations,
warranties and covenants given with respect to the Purchased Assets
on the Effective Date will be deemed to have been given again on
the date of the subject acquisition with respect to the After
Acquired Rights. On the date of the consummation of the acquisition
of the After Acquired Rights, Seller will cause [*****] to execute
a Patent Assignment Agreement, substantially in the form attached
hereto as Exhibit H, assigning the subject Patents from [*****] to
Buyer and will deliver the executed agreement to
Buyer.

 

Section
6.4 Other Fees. As between the Parties,
Buyer shall be responsible for fees that accrue with respect to the
maintenance of the Patent Rights included in the Purchased Assets
after the Effective Date, including, but not limited to, any and
all application and/or renewal and/or maintenance and/or defense
fees.

 

ARTICLE
7 




INDEMNIFICATION; LIABILITY

 

Section
7.1 Indemnification by Seller. Seller hereby
agrees to indemnify and defend Buyer and its Affiliates, and their
respective officers, directors and employees (the
“Buyer Indemnified
Parties”) against, and agrees to hold them harmless
from, any Losses to the extent such Losses arise from or in
connection with the following:

 

(a) any breach by
Seller of any representation or warranty made by Seller under this
Agreement;

 

(b) any breach by
Seller of any of its covenants, agreements or obligations contained
in this Agreement;

 

(c) any Loss incurred
by Buyer in connection with a failure of Seller to have assigned to
meet its obligations under Section 6.3.

 

(d) any taxes of Seller
that accrue or relate to periods that ended prior to or on the
Effective Date; and

 

(e) any of the Excluded
Liabilities.

 

Section
7.2 Indemnification by Buyer. Buyer hereby
agrees to indemnify and defend Seller and its officers, directors
and employees (the “Seller
Indemnified Parties”) against, and agrees to hold them
harmless from, any Losses to the extent such Losses arise from or
in connection with the following:

 

(a) any breach by Buyer
of any representation or warranty made by Buyer under this
Agreement;

 

(b) any breach by Buyer
of any of its covenants, agreements or obligations contained in
this Agreement; and

 

(c) any taxes of Buyer
that accrue or relate to periods that begin after the Effective
Date;

 

(d) any of the Assumed
Liabilities.

 


 





CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED
BY [*****], HAS BEEN OMITTED BECAUSE AZURRX BIOPHARMA, INC. HAS
DETERMINED THE INFORMATION (I) IS NOT MATERIAL AND (II) WOULD
LIKELY CAUSE COMPETITIVE HARM TO AZURRX BIOPHARMA, INC.
IF PUBLICLY DISCLOSED.


 

-14-








 





 




Section
7.3 Survival of Representations and
Warranties. Except for the Fundamental Representations
(which shall survive and remain in full force and effect at all
times after the Effective Date), the representations and warranties
set forth in Article
4 and Article
5 shall survive and remain in full force and effect until
the date that is twenty-four (24) months after the Effective
Date.

 

Section
7.4 Sole Remedy. Except in the event of
fraud, gross negligence or willful misconduct, the Parties
acknowledge and agree that their sole and exclusive remedy with
respect to any and all claims with respect to breaches of any
representation or warranty stated in Article 4 or Article 5 shall be pursuant to
the rights to indemnification set forth in this Article 7.

 

Section
7.5 Indemnity
Procedures.

 

(a) In order for an
indemnified party under this Article 7 (an
“Indemnified
Party”) to be entitled to any indemnification provided
for under this Agreement, the Indemnified Party will, within a
reasonable period of time following the discovery of the matters
giving rise to any Losses, notify its applicable insurer and the
indemnifying party under this Article 7 (the
“Indemnifying
Party”) in writing of its claim for indemnification
for such Losses, specifying in reasonable detail the nature of the
Losses and the amount of the liability estimated to accrue
therefrom; provided, however, that failure to give
notification will not affect the indemnification provided
hereunder, except to the extent the Indemnifying Party will have
been actually prejudiced as a result of the failure. Thereafter,
the Indemnified Party will deliver to the Indemnifying Party,
within a reasonable period of time after the Indemnified
Party’s receipt of such request, all information, records and
documentation reasonably requested by the Indemnifying Party with
respect to such Losses. The Indemnifying Party shall control all
litigation reflecting to the indemnification. Without limiting the
foregoing, the Indemnified Party shall control choice of counsel,
staffing, and all decisions to be made with the
litigation.

 

(b) If the
indemnification sought pursuant hereto involves a claim made by a
Third Party against the Indemnified Party (a “Third Party Claim”), the
Indemnifying Party will be entitled to participate in the defense
of such Third Party Claim and, if it so chooses, to assume the
defense of such Third Party Claim with counsel selected by the
Indemnifying Party. Should the Indemnifying Party so elect to
assume the defense of a Third Party Claim, the Indemnifying Party
will not be liable to the Indemnified Party for any legal expenses
subsequently incurred by the Indemnified Party in connection with
the defense thereof. If the Indemnifying Party assumes such
defense, the Indemnifying Party will control such defense. The
Indemnifying Party will be liable for the reasonable fees and
expenses of counsel employed by the Indemnified Party for any
period during which the Indemnifying Party has not assumed the
defense thereof (other than during any period in which the
Indemnified Party will have failed to give notice of the Third
Party Claim as provided above). If the Indemnifying Party chooses
to defend or prosecute a Third Party Claim, all of the parties
hereto will cooperate in the defense or prosecution thereof. Such
cooperation will include the retention and (upon the Indemnifying
Party’s request) the provision to the Indemnifying Party of
records and information, which are reasonably relevant to such
Third Party Claim, and making employees available on a mutually
convenient basis to provide additional information and explanation
of any material provided hereunder. If the indemnifying Party
chooses to defend or prosecute any Third Party Claim, the
Indemnifying Party will seek the approval of the Indemnified Party
(not to be unreasonably withheld) to any settlement, compromise or
discharge of such Third Party Claim the Indemnifying Party may
recommend and which by its terms obligates the Indemnifying Party
to pay the full amount of the liability in connection with such
Third Party Claim. Whether or not the Indemnifying Party will have
assumed the defense of a Third Party Claim, the Indemnified Party
will not admit any liability with respect to, or settle, compromise
or discharge, such

 


 





CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED
BY [*****], HAS BEEN OMITTED BECAUSE AZURRX BIOPHARMA, INC. HAS
DETERMINED THE INFORMATION (I) IS NOT MATERIAL AND (II) WOULD
LIKELY CAUSE COMPETITIVE HARM TO AZURRX BIOPHARMA, INC.
IF PUBLICLY DISCLOSED.


 

-15-








 





 





Third
Party Claim without the Indemnifying Party’s prior written
consent). The Indemnifying Party shall reimburse upon demand, all
reasonable costs and expenses incurred by the Indemnified Party in
cooperation with the defense or prosecution of the Third Party
Claim.

 


Section 7.6 Right of
Set-Off. Notwithstanding anything herein to
the contrary, in addition to any other rights available to any
Buyer Indemnified Party under this Agreement or otherwise, Buyer
shall have the right to set-off any Milestone Payment payable to
Seller hereunder to provide recourse to any Buyer Indemnified Party
with respect to (a) amounts finally determined to be owed to any
Buyer Indemnified Party in respect of their indemnification rights
under this Article
7 or (b) amounts reasonably determined by Buyer to satisfy
pending claims brought by any Buyer Indemnified Party in respect of
their indemnification rights under this Article 7; provided, however, that with respect to
clause (b), to the extent that it is finally determined that a
Buyer Indemnified Party is not entitled to indemnification for the
full amount of the portion of the Milestone Payment so set-off,
Buyer shall promptly thereafter pay or cause to be paid to Seller
such portion of the Milestone Payment to which Seller is so
entitled to receive. In the event that Buyer exercises its right to
set-off all or any portion of a Milestone Payment, Seller shall
remain liable for any unsatisfied indemnification obligations under
this Article
7.

 



ARTICLE 8



GENERAL PROVISIONS

 

Section
8.1 Expenses. Except as otherwise specified
in this Agreement, all costs and expenses, including fees and
disbursements of counsel, financial advisors and accountants,
incurred in connection with this Agreement and the transactions
contemplated hereby will be paid by the Party incurring such costs
and expenses.

 

Section
8.2 Notices. All notices and other
communications required or permitted to be given or made pursuant
to this Agreement shall be in writing signed by the sender and
shall be deemed duly given: (a) on the date delivered, if
personally delivered, (b) on the date sent by facsimile with
automatic confirmation by the transmitting machine showing the
proper number of pages were transmitted without error, (c) on the
Business Day after being sent by Federal Express or another
recognized overnight mail service which utilizes a written form of
receipt for next day or next business day delivery, or (d) upon
receipt after mailing, if mailed by related country postage-prepaid
certified or registered mail, return receipt requested, in each
case addressed to the applicable party at the address set forth
below; provided that a Party may change its address for receiving
notice by the proper giving of notice hereunder:

 


if to
Buyer, to:

 


AzurRx
Biopharma, Inc.


760
Parkside Avenue


Downstate
Biotechnology Incubator


Suite
304


Brooklyn, NY
11226


Tel:
646-699-7855



info@azurrx.com


 


with a
copy to:

 


 





CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED
BY [*****], HAS BEEN OMITTED BECAUSE AZURRX BIOPHARMA, INC. HAS
DETERMINED THE INFORMATION (I) IS NOT MATERIAL AND (II) WOULD
LIKELY CAUSE COMPETITIVE HARM TO AZURRX BIOPHARMA, INC.
IF PUBLICLY DISCLOSED.


 

-16-








 





 





Lowenstein Sandler
LLP


One
Lowenstein Drive


Roseland, New
Jersey 07068


Facsimile: (973)
597-2400


Attn:
Michael J. Lerner, Esq.


 





if
Seller, to:

 


Laboratoires Mayoly
Spindler


6 avenue de
l'Europe,


78401
Chatou, France


Attention:
President


 


with a
copy to:

 


Laboratoires Mayoly
Spindler


6 avenue de
l'Europe,


78401
Chatou, France


Attention: Legal
Department


 

Section
8.3 Headings. The table of contents and
headings contained in this Agreement are for reference purposes
only and will not affect in any way the meaning or interpretation
of this Agreement.

 

Section
8.4 Severability. If any term or other
provision of this Agreement is invalid, illegal or incapable of
being enforced under any law or public policy, all other terms and
provisions of this Agreement will nevertheless remain in full force
and effect so long as the economic or legal substance of the
transactions contemplated hereby is not affected in any manner
materially adverse to any Party. Upon such determination that any
term or other provision is invalid, illegal or incapable of being
enforced, the Parties will negotiate in good faith to modify this
Agreement so as to effect the original intent of the Parties as
closely as possible in an acceptable manner in order to ensure that
the transactions contemplated hereby are consummated as originally
contemplated to the greatest extent possible.

 

Section
8.5 Counterparts. This Agreement may be
executed in any number of counterparts, each of which shall be
deemed an original, and all of which together shall constitute one
and the same instrument. Signatures provided by facsimile
transmission or in Adobe Portable Document Format (PDF) sent by
electronic mail shall be deemed to be original
signatures.

 

Section
8.6 Entire Agreement; No Third Party
Beneficiaries. This Agreement constitutes the entire
agreement and supersede all prior agreements and understandings
both written and oral (including any letter of intent, memorandum
of understanding electronic communicators, e-mail or term sheet),
between the Parties with respect to the subject matter hereof.
Except as specifically provided herein, this Agreements is not
intended to confer upon any Person other than the Parties any
rights or remedies hereunder.

 

Section
8.7 Governing Law. This Agreement and all
matters arising directly or indirectly herefrom shall be governed
by and construed and enforced in accordance with the

 


 





CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED
BY [*****], HAS BEEN OMITTED BECAUSE AZURRX BIOPHARMA, INC. HAS
DETERMINED THE INFORMATION (I) IS NOT MATERIAL AND (II) WOULD
LIKELY CAUSE COMPETITIVE HARM TO AZURRX BIOPHARMA, INC.
IF PUBLICLY DISCLOSED.


 

-17-








 





 





laws of
the State of New York applicable to agreements made and to be
performed entirely in such state, without giving effect to the
conflict of law principles thereof.

 

Section
8.8 Jurisdiction; Venue, Service of Process.
Buyer and Seller each agrees to irrevocably submit to the sole and
exclusive jurisdiction of the state and federal courts located in
New York County, New York for any suit, action or other proceeding
arising out of this Agreement or any transaction contemplated
hereby, and hereby waives any objection to the laying of venue in
such courts. Each Party agrees that service of any process,
summons, notice or document by registered mail or recognized
international courier service to such Party’s address set
forth in this Agreement shall be effective service of
process.

 

Section
8.9 Publicity. Neither Party will make any
public announcement concerning, or otherwise publicly disclose, any
information with respect to the transactions contemplated by this
Agreement or any of the terms and conditions hereof without the
prior written consent of the other Party. Notwithstanding the
foregoing (a) either Party may make any public disclosure
concerning the transactions contemplated hereby that in the opinion
of such Party’s counsel may be required by any Government
Rule or the rules of any stock exchange on which such Party’s
or any of its Affiliates’ securities trade and (b) Buyer may
publicize its development of the Active Ingredient, the Technology
and/or any resulting Products without approval from
Seller.

 

Section
8.10 Assignment. Neither Party may assign its
rights or obligations under this Agreement without the prior,
written consent of the other Party; provided, however, that notwithstanding
the foregoing, either Party may assign its rights and obligations
under this Agreement, without any obligation to obtain the other
Party’s consent, to (i) any of its Affiliates or (ii) in
connection with any merger, consolidation, sale of all or
substantially all of the assets of such Party (or, in the case of
Buyer, Buyer’s business related to the Product) or any
similar transaction. Any permitted assignee or
successor-in-interest will assume all obligations of its assignor
under this Agreement. No assignment will relieve either Party of
its responsibility for the performance of any obligation. This
Agreement will be binding upon and inure to the benefit of the
Parties hereto and their respective successors and permitted
assigns. For the avoidance of doubt, in the event that prior the
milestones set forth in Section 3.1 Buyer is subject to any merger,
consolidation, sale of all or substantially all of its assets, in
particular Buyer’s business related to the Product, or any
similar transaction, or any assignment of rights or obligations
under this Agreement, Buyer covenants and agrees that i) it will
assign its payment rights to its successor-in-interest through a
dedicated covenant for such purpose and failing the payment by its
successor-in-interest, Buyer remains jointly and severally liable
for the payment of the Milestone Payment as set forth in Section
3.1.

 

Section
8.11 Amendments and Waivers. This Agreement
may not be amended except by an instrument in writing signed by
both Parties. Each Party may, by a signed written instrument, waive
compliance by the other Party with any term or provision of this
Agreement that such other Party was obligated to comply with or
perform.

 


 

 



[Remainder of Page Intentionally Left Blank- Signature Page to
Follow]

 





CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED
BY [*****], HAS BEEN OMITTED BECAUSE AZURRX BIOPHARMA, INC. HAS
DETERMINED THE INFORMATION (I) IS NOT MATERIAL AND (II) WOULD
LIKELY CAUSE COMPETITIVE HARM TO AZURRX BIOPHARMA, INC.
IF PUBLICLY DISCLOSED.


 

-18-








 






 

 


IN
WITNESS WHEREOF, the Parties have caused this Agreement to be
signed by their respective representatives thereunto duly
authorized, all as of the date first written above.

 


 

 


	


AzurRx BioPharma, Inc.

	


Laboratoires Mayoly Spindler SAS


	

 



By: /s/ Thijs
Spoor

	

 



By: /s/ Claude
Brunet

	
 


	


Name: Thijs Spoor

	


Name: Claude Brunet

	
 


	


Title: President & CEO

	


Title: Chief Executive Officer

	
 






 




 

 



[signature page to AzurRx/LMS Asset Purchase
Agreement]


 





CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED
BY [*****], HAS BEEN OMITTED BECAUSE AZURRX BIOPHARMA, INC. HAS
DETERMINED THE INFORMATION (I) IS NOT MATERIAL AND (II) WOULD
LIKELY CAUSE COMPETITIVE HARM TO AZURRX BIOPHARMA, INC.
IF PUBLICLY DISCLOSED.


 

-19-








 










 



EXHIBIT A

 



Termination Agreement

 

 



 
TERMINATION
AGREEMENT 



 


This
Termination Agreement (this “Agreement”) dated March
27, 2019 (the “Effective Date”), is between
Laboratoires Mayoly Spindler SAS, a corporation created and
organized under French laws (“LMS”) and AzurRx BioPharma, Inc.,
a Delaware corporation (“AZRX”) executing on behalf of its
wholly-owned subsidiary, AzurRx BioPharma SAS (formerly ProteaBio
Europe SAS) (“AZRX
SAS”). LMS and AZRX are referred to collectively as
the “Parties” and individually as a
“Party.”

 




RECITALS





 

A.   
LMS and AZRX SAS
are parties to that certain Joint Development and License
Agreement, executed as of January 1, 2014 (the “JDLA”).


 

B.   
AZRX is the direct
parent of its wholly-owned subsidiary, AZRX SAS, and therefore has
the authority to execute this Agreement on its behalf.


 

C.   
LMS has
executed that certain term sheet, dated as of November 28, 2018,
pursuant to which LMS agreed to make certain payments in connection
with the termination of the JDLA.


 

D.   
The Parties now
desire to terminate the JDLA by written agreement in accordance
with and subject to the terms of this Agreement.


 

E.   
Immediately after
the termination of the JDLA becomes effective, upon the terms and
conditions set forth in that certain Asset Purchase Agreement,
dated as of the date hereof, between AZRX and LMS (the
“APA”),
AZRX shall purchase all of LMS’ right, title and interest in
and to the Purchased Assets (as defined in the APA) and the JDLA
Assets (as defined in the APA).

 


 


NOW,
THEREFORE, in consideration of the foregoing and the mutual
covenants contained in this Agreement, the Parties agree as
follows:


 

1. Certain Defined Terms. Certain
terms capitalized and not otherwise defined herein shall have the
meanings given to such terms in the JDLA.


 

2.    
Amendment of the JDLA. The
Parties hereby agree that the JDLA shall be amended (the
“Amendment”) to add the
following as a new clause 15.1.4:


 


“The Parties
may terminate this Agreement by mutual written
Agreement.”


 

3.    
Termination of JDLA. The JDLA
is hereby terminated and of no further force




 


CERTAIN
CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY
[*****], HAS BEEN OMITTED BECAUSE AZURRX BIOPHARMA, INC. HAS
DETERMINED THE INFORMATION (I) IS NOT MATERIAL AND (II) WOULD
LIKELY CAUSE COMPETITIVE HARM TO AZURRX BIOPHARMA, INC.
IF PUBLICLY DISCLOSED. 



 

A-1







 





 


or effect
immediately after the effectiveness of the Amendment, which for the
avoidance of doubt, shall be on the Effective Date. Upon the
termination of the JDLA i.e the Effective Date, the full and
exclusive rights relating to the JDLA shall be reverted by each
Party to the other Party pursuant to the terms and conditions set
forth in this Agreement and AZRX SAS shall immediately cease
incurring or committing towards LMS any further fees and expenses
in connection with the JDLA. For the avoidance of doubt, the grant
of licenses and sub-licenses under the JDLA is terminated as of the
Effective Date.


 

4.    
Payments Due AZRX SAS. LMS
shall pay to AZRX SAS (or its designee) in immediately available
funds to an account designated by AZRX SAS to LMS:

 

its part of Shared
Costs as defined in Article 4.2 of the JDLA in the year 2018 for
any work under Development Program (for chronic pancreatitis as
well as for cystic fibrosis or any other indication in the Field)
which was decided to be carried out prior to the Effective Date.
This Shared Cost is set at three hundred thirty four thousand euros
(334.000€) (excluding tax) through the Effective Date (the
“Shared Cost
Amount”). Any amount due from LMS to AZRX SAS under
the JDLA that is in excess of the Shared Cost Amount, shall be
forgiven as part of the purchase price for the Purchased Assets (as
defined in the APA) under the APA. The Shared Cost Amount has
already been paid by LMS.


 




5.    
Release by AZRX
SAS. AZRX agrees that no payment of Shared Costs in excess
or in addition to the Shared Cost Amount (other than applicable
taxes through the Effective Date) shall be due to AZRX SAS or any
of its Affiliates. Any invoice issued by AZRX SAS in respect of
Shared Costs that is in excess of the Shared Cost Amount shall be
cancelled by issuance of a corresponding credit note within ten
(10) days from the Effective Date indicating that the amounts set
forth on Exhibit A have been forgiven in accordance with the
APA.

 

6. Rights of the Parties-Survival.
Except as set forth herein, this Agreement does not extinguish,
waive or otherwise alter any rights, including, but not limited to,
rights relating to ownership of Intellectual Property and/or
confidentiality that have accrued to either Party under the JDLA as
of the Effective Date. All rights of each Party with respect to
ownership of Intellectual Property and/or confidentiality as set
forth in Sections 11, 15.5.1 and 12.1.1 – 12.1.4 (inclusive)
shall survive termination of the JDLA. In addition, to the extent
that any rights in Intellectual Property were or would be conferred
to either Party under Sections 12.1.5 – 12.1.8 (inclusive),
the Party owning such rights on the Effective Date shall retain
those ownership rights. And, with respect to rights retained by or
reverting to LMS, such Intellectual Property rights shall be
included in the Purchased Assets.


 

7.    
Governing Law. This Agreement
will be governed by and construed in accordance with the laws of
the country of France.

 

8. Dispute Resolution. All
disputes arising out of or in connection to this Agreement shall be
settled by French Court in Paris.

 

 




CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED
BY [*****], HAS BEEN OMITTED BECAUSE AZURRX BIOPHARMA, INC. HAS
DETERMINED THE INFORMATION (I) IS NOT MATERIAL AND (II) WOULD
LIKELY CAUSE COMPETITIVE HARM TO AZURRX BIOPHARMA, INC.
IF PUBLICLY DISCLOSED.  







 

A-2







 






 



9. Integration; Amendments. This
Agreement, the APA and the JDLA set forth the final and complete
understanding of the Parties hereto and supersedes any prior
agreement with respect to the subject matter hereof and may not be
modified, amended, or otherwise altered except in a writing
executed by the Parties.


 




10. Counterparts. This Agreement
may be executed in multiple counterparts, each of which will be
deemed an original, but all of which, when taken together, will
constitute one and the same instrument.


 

11. Further Acts. Each party agrees
to sign and have acknowledged and delivered to the other party, as
may be appropriate, any and all additional instruments and
assurances reasonably requested or appropriate to evidence or give
effect to the provisions of this Agreement.


 


 


[Signature
blocks appear on the following page]

 


 





CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED
BY [*****], HAS BEEN OMITTED BECAUSE AZURRX BIOPHARMA, INC. HAS
DETERMINED THE INFORMATION (I) IS NOT MATERIAL AND (II) WOULD
LIKELY CAUSE COMPETITIVE HARM TO AZURRX BIOPHARMA, INC.
IF PUBLICLY DISCLOSED.


 

A-3








 





 


IN
WITNESS HEREOF, the parties have executed and delivered this
Termination Agreement.


 


LMS


 


LABORATOIRES
MAYOLY SPINDLER SAS


 


By:
/s/ Claude
Burnet


Its:
Chief Executive
Officer


 

 

 


AZRX


 


AZURRX
BIOPHARMA, INC.





 




By:/s/ Thijs Spoor


Its:
President &
CEO


 


  


Acknowledged
and Agreed:

 





AZURRX
BIORPHARMA SAS


 


 By:
/s/ Thijs
Spoor


 Its:
President &
CEO


 

 

 

 

 


 







CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED
BY [*****], HAS BEEN OMITTED BECAUSE AZURRX BIOPHARMA, INC. HAS
DETERMINED THE INFORMATION (I) IS NOT MATERIAL AND (II) WOULD
LIKELY CAUSE COMPETITIVE HARM TO AZURRX BIOPHARMA, INC.
IF PUBLICLY DISCLOSED.


 

A-4












 



Exhibit A






 



Cancelled Invoices






 



 




[*****]

  





 

 


 

 


 

 


 

 


 

 


 



 

 


 





CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED
BY [*****], HAS BEEN OMITTED BECAUSE AZURRX BIOPHARMA, INC. HAS
DETERMINED THE INFORMATION (I) IS NOT MATERIAL AND (II) WOULD
LIKELY CAUSE COMPETITIVE HARM TO AZURRX BIOPHARMA, INC.
IF PUBLICLY DISCLOSED.


 

A-5








 










 



EXHIBIT B






 



License Agreement

 

 





 

 





CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED
BY [*****], HAS BEEN OMITTED BECAUSE AZURRX BIOPHARMA, INC. HAS
DETERMINED THE INFORMATION (I) IS NOT MATERIAL AND (II) WOULD
LIKELY CAUSE COMPETITIVE HARM TO AZURRX BIOPHARMA, INC.
IF PUBLICLY DISCLOSED.


 

B-1








 










 



EXHIBIT C

 



Transferred Contracts

 


Reciprocal
License


 


 


 

 





CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED
BY [*****], HAS BEEN OMITTED BECAUSE AZURRX BIOPHARMA, INC. HAS
DETERMINED THE INFORMATION (I) IS NOT MATERIAL AND (II) WOULD
LIKELY CAUSE COMPETITIVE HARM TO AZURRX BIOPHARMA, INC.
IF PUBLICLY DISCLOSED.


 

C-1









 










 



EXHIBIT D

 



Patents

 



[*****]

 


  


 


 

 





CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED
BY [*****], HAS BEEN OMITTED BECAUSE AZURRX BIOPHARMA, INC. HAS
DETERMINED THE INFORMATION (I) IS NOT MATERIAL AND (II) WOULD
LIKELY CAUSE COMPETITIVE HARM TO AZURRX BIOPHARMA, INC.
IF PUBLICLY DISCLOSED.


 

D-1








 










 



EXHIBIT E

 



Private Placement Rider

 


1.
Seller is an entity with total assets in excess of $5,000,000, not
formed for the specific purpose of acquiring Buyer Stock pursuant
to this Agreement, and is an “accredited investor”
within the meaning of Rule 501(a) of the Securities Act of 1933, as
amended.


 


2.
Seller and its representatives have had the opportunity to review
the current business prospects, financial condition and operating
history of Buyer, as set forth or incorporated by reference in its
filings made by Buyer with the U.S. Securities and Exchange
Commission. Seller and its representatives have such knowledge and
experience in financial and business matters that they are capable
of evaluating the merits and risks of investment in Buyer Stock.
Seller and its representatives have had the opportunity to ask
questions and receive answers from Buyer regarding the terms and
conditions of the sale of Buyer Stock pursuant to this Agreement
and have received all the information they consider necessary or
appropriate for deciding whether to participate in such
transactions. Seller has consulted with its own legal, tax and
accounting advisors as to the consequences of participating or not
participating in such transactions.


 


3. Any
Buyer Stock acquired pursuant to this Agreement is for the account
of Seller, for investment purposes and not with any view to the
distribution thereof, and Seller will not sell, assign, transfer or
otherwise dispose of any such Buyer Stock, or any interest therein,
in violation of the Securities Act of 1933, as amended, or any
applicable state securities law.


 


4.
Seller understands that until it is registered (i) any Buyer Stock
acquired pursuant to this Agreement may not be sold or otherwise
disposed of except in a transaction registered under the Securities
Act of 1933, as amended, and any applicable state securities law,
or exempt from registration, and (ii) any certificates or
book-entry records representing Buyer Stock acquired pursuant to
this Agreement will bear appropriate legends restricting the
transferability thereof.


 


5.
Seller understand that Buyer will rely upon the completeness and
accuracy of these representations and warranties in establishing
that the contemplated transactions are exempt from the Securities
Act of 1933, as amended, and applicable state securities
laws.


 


6.
Seller understands that its investment in the Buyer Stock involves
a high degree of risk and that no representation is being made as
to the business or prospects of Buyer after completion of the
transaction contemplated in the Agreement or the future value of
the Equity Consideration. Seller, either alone or together with its
representatives, has the knowledge, sophistication and experience
in financial and business matters as to fully understand and be
capable of evaluating the merits and risks of an investment in
Buyer Stock and has the ability to bear the economic risks of an
investment in the Equity Consideration. Seller has carefully
reviewed and considered the risk factors included in the
Buyer’s annual reports and quarterly reports filed with the
Securities and Exchange Commission (the “Risk Factors”). Seller hereby
acknowledges and confirms that it has carefully reviewed and
considered the risks and uncertainties described in the Risk
Factors before making a decision to accept Buyer Stock as
consideration in the Agreement.


 

 


 

 





CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED
BY [*****], HAS BEEN OMITTED BECAUSE AZURRX BIOPHARMA, INC. HAS
DETERMINED THE INFORMATION (I) IS NOT MATERIAL AND (II) WOULD
LIKELY CAUSE COMPETITIVE HARM TO AZURRX BIOPHARMA, INC.
IF PUBLICLY DISCLOSED.


 

E-1








 










 



Exhibit F


 



Patent Assignment Agreement LMS



 


 


 





ASSIGNMENT

 


I,
LABORATOIRES MAYOLY SPINDLER, a corporation having a
place of business at 6, Avenue de L’Europe, 78400 Chatou,
France, (hereinafter “ASSIGNOR”), in consideration of
good and valuable consideration, the sufficiency of which and
receipt of which are hereby acknowledged, paid to ASSIGNOR
by

 




AZURRX BIOPHARMA, INC.

 



A Delaware corporation, located at 760 Parkside Avenue, Downstate
Biotechnology Incubator, Suite 304, Brooklyn, NY 11226, USA
(hereinafter “ASSIGNEE“), do hereby sell and assign to
said ASSIGNEE, its successors and assigns, the below indicated
right, title, and interest, throughout the
world, in and to said
Invention(s), and to said applications and to any and all patents
to be obtained therefore, including but not limited to, the
inventions listed in the attached patent schedule I and patent
schedule II,

 



and all patents, divisions, reissues, continuations and any
extensions thereof and rights of priority therein, and all
applications for industrial property protection including, without
limitation, all applications for patents, utility models,
inventor’s certificates and designs and rights of priority
therein that may be filed for said Invention(s) in any country, and
including the right to claim the same priority rights from any
previously filed applications under the International Agreement for
the Protection of Industrial Property, or any other international
agreement, or the domestic laws of the country in which any such
application is filed, as may be applicable; said interest
being my entire ownership
interest in the same, to be
held and enjoyed by said ASSIGNEE, its successors, assigns, or
other legal representatives, to the full end of the term thereof,
as fully and entirely as the same would have been held and enjoyed
by me if this Assignment and sale had not been
made.

 



And for the consideration aforesaid, I hereby covenant and agree to
and with said ASSIGNEE, its successors and assigns, that whenever
ASSIGNEE, its counsel or representative, or the counsel or
representative of its successors or assigns, shall advise that an
amendment to, or a division of, or any other proceeding or action
in connection with an application concerning said Invention,
including interference proceedings, is lawful and desirable, orthat
a reissue or continuation or extension of such application or
patent issuing therefrom is lawful and desirable, I will sign all
papers and drawings, take all rightful oaths and affidavits, and do
all acts necessary or required to be done for the procurement or
enforcement of all lawful rights associated with the Invention, or
for the reissue or continuation or extension of the same, will do
all acts necessary or required to secure in said ASSIGNEE, its
successors or assigns, the title to and full benefit of all rights
hereby assigned, without charge to said ASSIGNEE or its successors
or assigns, but at its or their expense; and I hereby appoint every
present or future officer of said ASSIGNEE as my agent to sign all
such papers and to do all such necessary acts on my behalf, to the
fullest extent permitted by law.

 



And I hereby authorize and request the Commissioner of Patents and
Trademarks and any other granting authority to issue any Letters
Patent or other evidence or forms of industrial property protection
resulting from said Invention and application(s) concerning same to
said ASSIGNEE, its successors or assigns.

 



I hereby grant Lowenstein Sandler LLP power to insert in this
Assignment any further identification that may be necessary or
desirable in order to comply with the rules of the United States
Patent and Trademark Office or any other patent office for
recordation of this document.

 

CERTAIN
CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY
[*****], HAS BEEN OMITTED BECAUSE AZURRX BIOPHARMA, INC. HAS
DETERMINED THE INFORMATION (I) IS NOT MATERIAL AND (II) WOULD
LIKELY CAUSE COMPETITIVE HARM TO AZURRX BIOPHARMA, INC.
IF PUBLICLY DISCLOSED. 




F-1







 





 



I hereby represent that I have the full right to convey the entire
interest herein assigned, and that I have not executed, and will
not execute, any agreement in conflict with this
Assignment.

 



I declare under penalty of perjury under the laws of the United
States of America, and under penalty of the laws of any other
jurisdiction before which this document may be presented, that I
have signed this document as my own free act and that all of the
foregoing is true and correct.

 


 

 


	


Date: March 27, 2019


 

	

/s/
Claude Burnet



Signature of Officer of LABORATOIRES MAYOLY SPINDLER
(Assignor)


	
 

	

 


Claude
Burnet



Print Name and Title of Officer of LABORATOIRES MAYOLY SPINDLER
(Assignor)


 


 


	


Date: March 27, 2019

	

/s/
Thijs Spoor



Signature of Officer of AZURRX BIOPHARMA, INC.
(Assignee)


	
 

	

 


Thijs
Spoor



Print Name and Title of Officer of AZURRX BIOPHARMA, INC.
(Assignee)


 


 






 





 

 


 




 



CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED
BY [*****], HAS BEEN OMITTED BECAUSE AZURRX BIOPHARMA, INC. HAS
DETERMINED THE INFORMATION (I) IS NOT MATERIAL AND (II) WOULD
LIKELY CAUSE COMPETITIVE HARM TO AZURRX BIOPHARMA, INC.
IF PUBLICLY DISCLOSED.


F-2









Attorney Docket No.: 34921-4


 






 



Patent Schedule I


 



[*****]

 


 


 


 




 



CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED
BY [*****], HAS BEEN OMITTED BECAUSE AZURRX BIOPHARMA, INC. HAS
DETERMINED THE INFORMATION (I) IS NOT MATERIAL AND (II) WOULD
LIKELY CAUSE COMPETITIVE HARM TO AZURRX BIOPHARMA, INC.
IF PUBLICLY DISCLOSED.


F-3











Attorney Docket No.: 34921-4


 






 



Patent Schedule II

 


 


 





[*****]

  




 


 





CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED
BY [*****], HAS BEEN OMITTED BECAUSE AZURRX BIOPHARMA, INC. HAS
DETERMINED THE INFORMATION (I) IS NOT MATERIAL AND (II) WOULD
LIKELY CAUSE COMPETITIVE HARM TO AZURRX BIOPHARMA, INC.
IF PUBLICLY DISCLOSED.


 

F-4








 







 



Exhibit G


 



Description of Restricted Shares


 



This Appendix is intended to provide you with a description of
certain rules, regulations and limitations with respect to the sale
of securities in the United States. The following descriptions are
for informational purposes only, and are not intended to constitute
a complete analysis of all applicable laws and regulations that may
apply to the sale of the securities described in the Agreement.
Nothing contained herein shall be construed as legal advice which
may be relied upon by any party in possession of this Appendix. You
should consult your independent legal counsel for specific guidance
regarding any intended offer and sale of securities described in
the Agreement.


 


In
general, all offers and sales of securities in the United States
must either be registered under the Securities Act of 1933, as
amended (the “Securities
Act”), or exempt from registration in accordance
certain exemptions provided under the Securities Act. The shares of
AzurRx BioPharma, Inc. common stock issuable to you as Closing
Payment Stock in accordance with the terms and conditions of this
Agreement will not be registered when issued, and instead will be
considered restricted securities.


 


Should
the Company file a registration statement under the Securities Act
that registers the Closing Payment Stock, as is required by Section
3.2 of the Agreement, and such registration statement is declared
effective by the United States Securities and Exchange Commission
(the “SEC”),
such shares will no longer be considered restricted securities,
and, instead, may be freely sold. The Company will contact you upon
receiving notice that any such registration statement has been
declared effective by the SEC, and will provide you with the
applicable prospectus and provide any additional information that
may be required, including information from the Company’s
transfer agent, to facilitate the removal of any restrictions from
your securities.


 


Absent
an effective registration statement under the Securities Act,
restricted securities may be sold in the United States pursuant to
an exemption from registration under applicable rules promulgated
under the Securities Act. The most frequently utilized exemption is
Securities Act Rule 144, often referred to simply as Rule 144.
Pursuant to Rule 144, restricted securities may be resold to the
public if the following conditions are satisfied:


 




1.

The restricted
securities have been held by the stockholder for a minimum of six
months;






 




2.

The stockholder is
not, and, for the three-month period preceding the proposed resale,
has not been an affiliate (as such term is defined under the
Securities Act) of the issuer of the securities; and






 




3.

The issuer of the
securities files reports under the Securities Exchange Act of 1934,
as amended, and is current in its reporting
obligations.






 


Sales
of restricted securities in reliance on Rule 144 often require
certain documentation, including an executed representation letter,
confirming that the conditions of Rule 144 have been satisfied, and
an opinion of counsel delivered to the transfer agent opining that
the conditions for resale of the securities under Rule 144 have
been satisfied. To reach the company’s securities counsel,
contact:


 



Disclosure Law
Group




One America
Plaza



 


 





CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED
BY [*****], HAS BEEN OMITTED BECAUSE AZURRX BIOPHARMA, INC. HAS
DETERMINED THE INFORMATION (I) IS NOT MATERIAL AND (II) WOULD
LIKELY CAUSE COMPETITIVE HARM TO AZURRX BIOPHARMA, INC.
IF PUBLICLY DISCLOSED.


 

G-1








 





 






600 West Broadway, Suite
700



San Diego, CA 92101



(619) 272-7050



Attention Daniel Rumsey


 


Should
you have any questions with respect to the current status of your
securities, or about a potential sale of restricted securities,
please contact either the Company or its transfer
agent:


 



Colonial Stock
Transfer



66 Exchange Place, Ste 100 



Salt Lake City, UT 84111 



(801) 355-5740 



shareholders@colonialstock.com 



www.colonialstock.com

 

 

 

 

 





CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED
BY [*****], HAS BEEN OMITTED BECAUSE AZURRX BIOPHARMA, INC. HAS
DETERMINED THE INFORMATION (I) IS NOT MATERIAL AND (II) WOULD
LIKELY CAUSE COMPETITIVE HARM TO AZURRX BIOPHARMA, INC.
IF PUBLICLY DISCLOSED.


 

G-2







H-1


 





 






Exhibit G


 



Patent Assignment Agreement – [*****]

 






 


ASSIGNMENT






I, [*****],

 


and
each of us, if more than one person is identified above (hereinafter
“ASSIGNOR”), in consideration of good and valuable
consideration, the sufficiency of which and receipt of which are
hereby acknowledged, paid to ASSIGNOR by

 



AZURRX BIOPHARMA, INC.

 



a Delaware corporation, located
at 760 Parkside Avenue, Downstate Biotechnology
Incubator, Suite 304, Brooklyn, NY 11226, USA (hereinafter
“ASSIGNEE“), do hereby sell and assign to said
ASSIGNEE, its successors and assigns, the below indicated right,
title, and interest, throughout the
world, in and to my Invention
entitled:

 



CLONING AND EXPRESSING AN ACID-RESISTANT EXTRACELLULAR LIPASE OF
YARROWIA LIPOLYTICA


 



invented by me and described in the patents listed in attached Patent Schedule II,
and all patents, divisions, reissues, continuations and any
extensions thereof and rights of priority therein, and all
applications for industrial property protection including, without
limitation, all applications for patents, utility models,
inventor’s certificates and designs and rights of priority
therein that may be filed for said Invention in any country, and
including the right to claim the same priority rights from any
previously filed applications under the International Agreement for
the Protection of Industrial Property, or any other international
agreement, or the domestic laws of the country in which any such
application is filed, as may be applicable; said interest being my
entire ownership interest in the same, to be held and enjoyed by
said ASSIGNEE, its successors, assigns, or other legal
representatives, to the full end of the term thereof, as fully and
entirely as the same would have been held and enjoyed by me if this
Assignment and sale had not been made.

 



And for the consideration aforesaid, I hereby covenant and agree to
and with said ASSIGNEE, its successors and assigns, that whenever
ASSIGNEE, its counsel or representative, or the counsel or
representative of its successors or assigns, shall advise that an
amendment to, or a division of, or any other proceeding or action
in connection with an application concerning said Invention,
including interference proceedings, is lawful and desirable, or
that a reissue or continuation or extension of such application or
patent issuing therefrom is lawful and desirable, I will sign all
papers and drawings, take all rightful oaths and affidavits, and do
all acts necessary or required to be done for the procurement or
enforcement of all lawful rights associatedwith the Invention, or
for the reissue or continuation or extension of the same, will do
all acts necessary or required to secure in said ASSIGNEE, its
successors or assigns, the title to and full benefit of all rights
hereby assigned, without charge to said ASSIGNEE or its successors
or assigns, but at its or their expense; and I hereby appoint every
present or future officer of said ASSIGNEE as my agent to sign all
such papers and to do all such necessary acts on my behalf, to the
fullest extent permitted by law.

 



And I hereby authorize and request the Commissioner of Patents and
Trademarks and any other granting authority to issue any Letters
Patent or other evidence or forms of industrial property protection
resulting from said Invention and application(s) concerning same to
said ASSIGNEE, its successors or assigns.


 

 



 







H-2

 





 



I hereby grant Lowenstein Sandler LLP power to insert in this
Assignment any further identification that may be necessary or
desirable in order to comply with the rules of the United States
Patent and Trademark Office or any other patent office for
recordation of this document.

 



I hereby represent that I have the full right to convey the entire
interest herein assigned, and that I have not executed, and will
not execute, any agreement in conflict with this
Assignment.

 



I declare under penalty of perjury under the laws of the United
States of America, and under penalty of the laws of any other
jurisdiction before which this document may be presented, that I
have signed this document as my own free act and that all of the
foregoing is true and correct.

 


	

 



Date: _______________________


 

	

 



__________________________________



Signature of [*****] (Assignor)


	
 

	

 



__________________________________



Name and Title (Assignor)


 


 







 


	

 



Date: _______________________


 

	

 



Signature of Officer of AZURRX BIOPHARMA, INC.
(Assignee)


	
 

	

 



Print Name and Title of Officer of AZURRX BIOPHARMA, INC.
(Assignee)


 


 







 




 



CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED
BY [*****], HAS BEEN OMITTED BECAUSE AZURRX BIOPHARMA, INC. HAS
DETERMINED THE INFORMATION (I) IS NOT MATERIAL AND (II) WOULD
LIKELY CAUSE COMPETITIVE HARM TO AZURRX BIOPHARMA, INC.
IF PUBLICLY DISCLOSED.


 







H-3



Attorney Docket No.: 34921-4


 






 



Patent Schedule II

 



[*****]

 

 

 





CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED
BY [*****], HAS BEEN OMITTED BECAUSE AZURRX BIOPHARMA, INC. HAS
DETERMINED THE INFORMATION (I) IS NOT MATERIAL AND (II) WOULD
LIKELY CAUSE COMPETITIVE HARM TO AZURRX BIOPHARMA, INC.
IF PUBLICLY DISCLOSED.