Exhibit 10.2


 


SETTLEMENT AND ASSUMPTION AND ASSIGNMENT
OF


MSK LICENSE AGREEMENT AND Y-MABS
SUBLICENSE AGREEMENT 


 


This SETTLEMENT AND
ASSUMPTION AND ASSIGNMENT OF MSK LICENSE AGREEMENT AND Y-MABS SUBLICENSE AGREEMENT (together, the “Agreement”)
is made and entered into as of December 2, 2019, by and among: (a) MabVax Therapeutics Holdings, Inc. and MabVax Therapeutics,
Inc., each a debtor and debtor-in-possession (together, the “Debtors”), (b) Y-mAbs Therapeutics Inc.
(“Y-mAbs”), and (c) Sloan Kettering Institute for Cancer Research (also known as Sloan-Kettering Institute
for Cancer Research) (“MSK” and collectively with the Debtors and Y-mAbs, the “Parties”).


 


RECITALS


 


WHEREAS, on
June 20, 2008, the Debtors and MSK entered into that certain Exclusive License Agreement regarding Polyvalent Conjugate Vaccines
for Cancer (SK#14491) (as amended, the “MSK License”);


 


WHEREAS, on
or about June 27, 2018, the Debtors and Y-mAbs entered into that certain Sublicense Agreement (the “Y-mAbs Sublicense”),
pursuant to which the Debtors granted to Y-mAbs an exclusive worldwide sublicense for all of the Debtors’ rights in a neuroblastoma
cancer vaccine under the MSK License;


 


WHEREAS, the
Y-mAbs Sublicense requires, inter alia, that Y-mAbs use commercially reasonable efforts to obtain a Priority Review Voucher
from the FDA and thereafter to promptly sell such Priority Review Voucher and that the Debtors are entitled to 20% of the Net Income
received from the sale of a Priority Review Voucher;


 


WHEREAS, on
June 27, 2018, the Parties entered into that certain Side Letter Agreement (the “Side Agreement,” together
with the MSK License and Y-mAbs Sublicense, the “Vaccine Agreements”), which provides that MSK is entitled
to 25% of any amounts received by the Debtors from the sale by Y-mAbs of the Priority Review Voucher (the “Initial
MSK Revenue Share”);


 


WHEREAS, on
March 21, 2019, the Debtors each filed a voluntary petition for relief under chapter 11 of the Bankruptcy Code commencing these
chapter 11 cases;


 


WHEREAS, BioNTech
AG (“BioNTech”) agreed to serve as the Stalking Horse Bidder (the “Stalking Horse Bid”)
in these chapter 11 cases and in connection therewith made a binding offer to purchase substantially all of the Debtors’
assets (the “Sale”);


 


WHEREAS, as
part of the Sale, the Debtors and BioNTech agreed that BioNTech would not acquire the Vaccine Agreements;


 






     


     


    

 


WHEREAS, on
May 7, 2019, the Court approved the Sale [D.I. 141];


 


WHEREAS, on
July 20, 2019, the Debtors filed the Motion of the Debtors for Entry of an Order (A) Authorizing the Debtors to Assume Executory
Contracts and Pay Related Cure Costs and (B) Granting Related Relief [D.I. 190] (the “Motion to Assume”);


 


WHEREAS, the
Motion to Assume seeks to assume but not assign the Vaccine Agreements and sets the total cure amount to be paid to MSK in connection
with the MSK License and Side Agreement as $328,351.00 (the “MSK Cure Amount”), and the Y-mAbs Sublicense
cure amount as $0;


 


WHEREAS, on
August 2, 2019, MSK filed an objection to the Motion to Assume [D.I. 202] (the “Objection”);


 


WHEREAS, on
August 23, 2019, the Debtors filed a Reply [D.I. 211] to the Objection and in further support of the Motion to Assume;


 


WHEREAS, following
good faith discussions, the Parties agreed to resolve the Objection whereby the Debtors will assume the Vaccine Agreements pursuant
to section 365 of the United States Bankruptcy Code, 11 U.S.C. §§ 101, et. seq. (as amended, the “Bankruptcy
Code”), pay the MSK Cure Amount and thereafter assign the Vaccine Agreements to MSK; provided, however,
as further set forth herein, the Debtors’ Retained Revenue Share (as defined herein) shall not be assigned or otherwise transferred
to MSK, and the Debtors’ contractual right to receive the Debtors’ Retained Revenue Share shall remain property of
the Debtors’ estates, and shall be freely assignable by the Debtors (and the Parties hereto agree to such assignment without
objection), including to any of the Debtors’ assignees or designees, or a plan administrator, liquidating trust, or post-effective
date debtor established pursuant to a plan confirmed by the Debtors, and will not be affected, altered, or impaired by this Agreement;
and


 


NOW, THEREFORE,
for and in consideration of the mutual covenants contained herein, and for other good and valuable consideration, the receipt,
adequacy and legal sufficiency of which are hereby acknowledged, the Parties do hereby agree as follows:


 


1.            Definitions.


 


		(a)	Capitalized terms, not otherwise defined herein, shall have the meanings ascribed to them in the Y-mAbs Sublicense.



 


2.             Assumption and Assignment of Vaccine Agreements.


 


(a)          Effective as of the date (the “Effective Date”) the United States Bankruptcy Court for the District
of Delaware (the “Bankruptcy Court”) enters an order approving this Agreement, the Parties agree that
the Vaccine Agreements will be assumed by the Debtors, pursuant to section 365 of the Bankruptcy Code and shall concurrently be
deemed assigned by the Debtors to MSK with no other instrument necessary to effectuate such assignment, but as amended by this
Agreement; provided, however, that notwithstanding such assignment or anything in this Agreement to the contrary, the Debtors
will retain their contractual rights pursuant to Section 3.3 of the Y-mAbs Sublicense (as such Section is amended by this Agreement
as set forth in Section 2(c) below) (such Section 3.3 as amended hereby, “Amended 3.3(a)”, the Debtors’
entitlement thereunder, the “Debtors’ Retained Revenue Share”, and MSK’s entitlement thereunder,
the “MSK Revenue Share”).


 






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(b)          The Debtors shall be deemed third party beneficiaries of Amended 3.3(a) with a direct right against Y-mAbs to seek to enforce
and collect the Debtors’ Retained Revenue Share. None of MSK, Y-mAbs or any of their respective successors in interest shall
amend, waive, alter, terminate or replace Amended 3.3(a) in a manner that adversely affects the Debtors’ right to collect
and receive the Debtors’ Retained Revenue Share. Notwithstanding any provision of this Agreement or the Vaccine Agreements
to the contrary, MSK and Y-mAbs acknowledge and agree that, following the sale of a Priority Review Voucher by Y-mAbs, the Debtors
are entitled to be paid the Debtors’ Retained Revenue Share and that nothing in this Agreement or the transactions contemplated
hereby prejudices, waives or otherwise impairs that right (including, without limitation, the Debtors having already filed voluntary
petitions for relief under chapter 11 of the Bankruptcy Code).


 


(c)          As of the Effective Date, Section 3.3(a) of the Y-mAbs Sublicense is hereby deleted in its entirety and replaced with the
following language:


 


“(a) In partial consideration
for the rights granted to YmAbs under this Agreement, YmAbs shall pay (i) MabVax a one-time amount equal to fifteen percent (15%)
of Net Income for the sale by YmAbs of one Priority Review Voucher and (ii) SKI a one-time amount equal to five percent (5%) of
Net Income for the sale by YmAbs of such Priority Review Voucher. Such amounts will be paid to MabVax and SKI within thirty (30)
days after YmAbs’ receipt of the Net Income from the sale of such Priority Review Voucher.”


 


(d)          The purpose of the Amended 3.3(a) is to enable Y-mAbs to pay the MSK Revenue Share directly to MSK. The Parties acknowledge
and agree that the Debtors’ Retained Revenue Share and the MSK Revenue Share established under Amended 3.3(a) results in
both the Debtors and MSK receiving the same amount they would have received prior to Amended 3.3(a) after accounting for the Debtors’
prior obligation to remit the Initial MSK Revenue Share to MSK. For the avoidance of doubt, the Debtors no longer will have any
obligation to pay the Initial MSK Revenue Share (subject to Section 4), and neither the Debtors’ Retained Revenue Share nor
the MSK Revenue Share shall reduce or increase the “Net Income” distributable to the Debtors by Y-mAbs in Amended 3.3(a).


 


(e)          Each of MSK and Y-mAbs further represent and warrant, severally and not jointly, that following the Effective Date they
each agree to be bound by this Agreement and shall not take any action or fail to take any action that in any way modifies, alters
or impairs the right of Debtors’ or Debtors’ assigns to receive and collect the Debtors’ Retained Revenue Share
without the prior written consent of the Debtors.


 


(f)           Y-mAbs shall use commercially reasonable efforts to obtain and sell a Priority Review Voucher, and will notify the Debtors
within five (5) business days if it obtains a Priority Review Voucher and within five (5) business days if its sells a Priority
Review Voucher. Such notice will be given via electronic mail to dhansen@mabvax.com and leonhardt@teamrosner.com, or such other
email addresses as the Debtors may later designate in writing.


 






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(g)          Y-mAbs will provide an update on the progress of obtaining and/or selling a Priority Review Voucher upon request of MSK
or the Debtors;


 


(h)          Nothing set forth in this Agreement shall affect, be deemed to affect, or otherwise prejudice the Debtors’ right to
receive and collect the Debtors’ Retained Revenue Share or MSK’s right to receive and collect the MSK Revenue Share.


 


(i)           For the avoidance of doubt, this Agreement shall not be interpreted or deemed as a rejection or termination of any of the
Vaccine Agreements.


 


(j)           For the avoidance of doubt: (x) as of and following the Effective Date, in no event shall MSK’s obligations to Y-mAbs
under the Y-mAbs Sublicense exceed MSK’s obligations to Debtors under the MSK License (as amended by the Side Agreement)
as existed immediately prior to the Effective Date; (y) Y-mAbs shall be obligated and liable for any and all amounts payable to
MSK by Y-mAbs under the Side Agreement; and (z) no provision of this Agreement shall be interpreted to (A) expand the rights of
or (B) reduce the obligations of Y-mAbs under the Y-mAbs Sublicense.


 


3.             Related Agreements.


 


(a)          Within five (5) business days after the Effective Date, the Debtors shall pay MSK the MSK Cure Amount which cures all existing
defaults under the Vaccine Agreements. Y-mAbs agrees that to its knowledge no other amounts are due or owing to it by the Debtors
under the Y-mAbs Sublicense Agreement.


 


(b)          MSK agrees that, other than the MSK Cure Amount, the Debtors do not owe any other or further amounts to MSK under the Vaccine
Agreements including, without limitation, any patent costs, and MSK and Y-mAbs agree that the Debtors (and their assigns solely
by virtue of such assignment) will have no further obligations or liabilities under the Vaccine Agreements to MSK or Y-mAbs including,
without limitation, any patent costs.


 


(c)          Notwithstanding any provision in the Vaccine Agreements to the contrary, the Debtors’ right to receive and collect
the Debtors’ Retained Revenue Share shall not be affected by the Debtors’ bankruptcy cases, the Sale, a conversion
of the Debtors’ bankruptcy cases to cases under chapter 7 (in which case the chapter 7 trustee will succeed to such right)
or any plan confirmed by the Debtors that transfers the Debtors’ assets to the Debtors’ assignees or designees, or
a plan administrator, liquidating trust, or post-effective date debtor. Further, MSK and Y-mAbs expressly agree that the Debtors
are authorized to transfer and assign their right to receive and collect the Debtors’ Retained Revenue Share to the Debtors’
assignees or designees, or a plan administrator, liquidating trust, or post-effective date debtor pursuant to a confirmed plan.


 






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(d)           From and after the Effective Date, the Debtors (and their assigns solely by virtue of such assignment) shall not be liable
or in any way obligated to MSK or Y-mAbs for continued use by Y-mAbs of the Patent Rights or any other matter licensed under the
Vaccine Agreements.


 


(e)           Y-mAbs acknowledges and agrees that MSK shall have no liability or obligation hereunder or under any of the Vaccine Agreements
for any breach or default by the Debtors or their assigns under the Vaccine Agreements existing or occurring on or prior to the
Effective Date.


 


(f)            Y-mAbs agrees that it shall reimburse the Debtors for their respective reasonable, documented out-of-pocket fees and expenses
(including reasonable attorney’s fees) incurred in connection with the negotiation and execution of this Agreement. Any such
reimbursement by Y-mAbs hereunder shall be capped at $50,000. The afore-mentioned reimbursement shall be paid by Y-mAbs within
five (5) business days after the Effective Date at the direction of the Debtors.


 


4.             Agreement Regarding Revenue Share. The Debtors agree that if Y-mAbs pays the MSK Revenue Share to the Debtors
in error, the Debtors will immediately remit the entire amount to MSK (or its assign) without further notice to or authorization
from the Bankruptcy Court. MSK agrees that if Y-mAbs pays the Debtors’ Retained Revenue Share to MSK in error, MSK will immediately
remit the entire amount to the Debtors (or their assigns).


 


5.             Releases. On the Effective Date, MSK and Y-mAbs, on the one hand, and the Debtors, on the other hand, in respect
of the mutual promises and other consideration recited in this Agreement, hereby release each other and their respective predecessors
in interest, successors, shareholders, directors, officers, employees, agents, attorneys and assigns of any and all obligations,
claims, and demands of any kind whatsoever, at law or in equity, direct or indirect, known or unknown, discovered or undiscovered,
arising out of, by reason of, or relating in any way whatsoever to the Vaccine Agreements, except that the obligations arising
out of this Agreement are not released; provided, however, that the foregoing shall not relieve Y-mAbs of its obligation
to pay either the Debtors’ Retained Revenue Share or the MSK Revenue Share. For the avoidance of doubt, the foregoing does
not release any obligations between and among MSK and Y-mAbs under the Vaccine Agreements or this Agreement, or any obligations
between MSK and the Debtors created by, arising out of or related to the Assumption and Assignment of BII Agreements [D.I.
138].


 


6.             Further Assurances. Each of the Parties covenants and agrees, at its own expense, to execute and deliver,
at the request of another party hereto, such further instruments of transfer and assignment and to take such other action as such
other party may reasonably request to more effectively consummate the settlement, assumption and assignment contemplated by this
Agreement.


 


7.             Choice of Law. This Agreement shall be governed by the laws of the State of New York without regard to choice
of law principles.


 






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8.             Successors and Assigns. As of the Effective Date, the terms of this Agreement shall inure to and be binding
upon the parties hereto and their respective successors and assigns, including the Debtors’ assignees or designees, or a
plan administrator, liquidating trust, or post-effective date debtor liquidating trustee appointed pursuant to a plan confirmed
by the Debtors.


 


9.             Entire Agreement. This Agreement supersedes all previous agreements among the Parties and contains the entire
understanding and agreement between the Parties with respect to the subject matter hereof and cannot be amended, modified or supplemented
in any respect except by subsequent written agreement entered into by all Parties.


 


10.           Severability. In the event that any provision of this Agreement is held to be unenforceable, then such enforceability
shall in no way affect the other terms and provisions of this Agreement, which shall remain in full force and effect.


 


11.           Retention of Bankruptcy Court Jurisdiction. The Bankruptcy Court shall retain exclusive jurisdiction
over any disputes or other matters arising under or otherwise relating to this Agreement, and the Parties submit to the jurisdiction
of the Bankruptcy Court to resolve any disputes under this Agreement.


 


12.           Miscellaneous. Each Party has consulted with counsel, or had an opportunity to consult with counsel, regarding
the terms of this Agreement. It is acknowledged that each Party has participated in and jointly consented to the drafting of this
Agreement and that any claimed ambiguity shall not be construed for or against either Party on account of such drafting.


 


13.           Warranty of Authority. The undersigned persons represent and warrant that they have full authority to execute
this Agreement on behalf of the respective parties and that the respective parties have full knowledge of and have consented to
this Agreement.


 


14.           Counterparts. This Agreement may be executed in counterparts, any of which may be transmitted by facsimile
or email, and each of which shall be deemed an original.


 


15.           Effectiveness. The provisions of this Agreement shall become effective as of the Effective Date. If the Effective
Date does not occur by December 20, 2019, this Agreement shall become null and void.


 






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16.           Confidentiality.


 


(a)           Each
of the Parties undertakes to treat as strictly confidential all information that it receives from another Party relating to its
business affairs (“Confidential Information”). Each of the Parties may disclose any of the other Parties’
Confidential Information to its employees, directors, agents, affiliates, or third party contractors, potential or actual investors,
acquirers or collaborators, and advisors (“Representatives”); provided that such Representatives have a need
to know the Confidential Information in order to carry out this Agreement and are under a written obligation to
safeguard the Confidential Information prior to disclosure. This duty of confidentiality shall not include Confidential Information
that is already in the public domain, which enters the public domain for reasons beyond the relevant Party’s control, or
which must be disclosed under a statutory obligation (provide the disclosing Party uses reasonable efforts to seek confidential
treatment thereof where available). This duty of confidentiality shall survive any expiration or termination of the MSK License
or the Y-mAbs Sublicense for five (5) years. Notwithstanding the foregoing, the Parties (or their successors) are authorized to
file this Agreement with the Bankruptcy Court to have it approved or enforced. 


 


[Signature Page Follows]


 






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IN WITNESS WHEREOF,
the Parties have executed this Settlement and Assumption and Assignment of MSK License and Y-mAbs Sublicense as of the date first
above written.


 


	MabVax Therapeutics Holdings,
    Inc.	 	 
	MabVax Therapeutics,
    Inc.	 	Y-mAbs Therapeutics,
    Inc.
	 	 	 
	By:	/s/ J. David Hansen	 	By:	/s/ Thomas Gad
	Name: 	J. David Hansen	 	Name: 	Thomas Gad
	Title:	 Executive Chairman	 	Title: 	Chairman, President




 


 


	 	Sloan Kettering Institute for Cancer Research
	 
	 	By: 	/s/ Eric M. Cottington
	 	Name:	Eric M. Cottington, Ph.D.
	 	Title: 	Senior Vice President, Research &Technology Management