PBLA Panbela Therapeutics Inc (QB)

Filed pursuant to Rule 424(b)(3)

Registration No. 333-276367

 

PROSPECTUS SUPPLEMENT NO. 4

(to Prospectus dated June 16, 2023)

 

 

2,270,000 Shares of Common Stock

 

Class A Common Warrants to purchase up to 2,270,000 Shares of Common Stock

 

Class B Common Warrants to purchase up to 2,270,000 Shares of Common Stock

 

Pre-Funded Warrants to purchase up to 2,270,000 Shares of Common Stock

 

Up to 6,810,000 Shares of Common Stock Underlying Warrants

 

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This prospectus supplement supplements the prospectus dated June 16, 2023 (the “Prospectus”), which forms a part of our registration statement on Form S-1 (No. 333-276367). This prospectus supplement is being filed to update and supplement the information in the Prospectus with the information contained in our current report on Form 8-K, filed with the Securities and Exchange Commission on October 28, 2024 (the “Current Report”). Accordingly, we have attached the Current Report to this prospectus supplement.

 

The Prospectus and this prospectus supplement relate to the issuance by us of (a) 2,270,000 shares of our common stock, $0.001 par value per share, (b) Class A Common Warrants to purchase up to 2,270,000 shares of our common stock (the “Class A Warrants”), (c) Class B Common Warrants to purchase up to 2,270,000 shares of our common stock, (d) Pre-Funded Warrants to purchase up to 2,270,000 shares of our common stock, and (e) up to 6,810,000 shares of our common stock underlying the warrants.

 

Our common stock is quoted on the OTCQB under the symbol “PBLA.” On October 28, 2024, the last reported sales price of the common stock was $.34 per share.

 

This prospectus supplement updates and supplements the information in the Prospectus and is not complete without, and may not be delivered or utilized except in combination with, the Prospectus, including any amendments or supplements thereto. This prospectus supplement should be read in conjunction with the Prospectus and if there is any inconsistency between the information in the Prospectus and this prospectus supplement, you should rely on the information in this prospectus supplement.

 

Investing in our securities involves a high degree of risk. See “Risk Factors” beginning on page 8 of the Prospectus and in any subsequent prospectus supplements to read about factors you should consider before investing in our securities.

 

Neither the Securities and Exchange Commission nor any state securities commission has approved or disapproved upon the accuracy or adequacy of this prospectus supplement or the Prospectus. Any representation to the contrary is a criminal offense.

 

The date of this prospectus supplement is October 28, 2024

 

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UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

 

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FORM 8-K

CURRENT REPORT

 

Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934

 

October 22, 2024

Date of Report (Date of Earliest Event Reported)

 

 

Panbela Therapeutics, Inc.

(Exact Name of Registrant as Specified in its Charter)

 

 

Delaware		001-39468		88-2805017
(State of Incorporation)		(Commission File Number)		(I.R.S. Employer Identification No.)

 

 

712 Vista Blvd #305 Waconia, Minnesota		55387
(Address of Principal Executive Offices)		(Zip Code)

 

(952) 479-1196

(Registrant’s Telephone Number, Including Area Code)

 

(Former Name or Former Address, if Changed Since Last Report.)

 

Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions (see General Instruction A.2. below):

☐ Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)

☐ Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)

☐ Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))

☐ Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))

 

Securities registered pursuant to Section 12(b) of the Act: None.

 

Securities registered pursuant to Section 12(g) of the Act: Common Stock, $0.001 par value

 

Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 or Rule 12b-2 of the Securities Exchange Act of 1934.

Emerging growth company ☐

 

If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ☐

 

 

Item 1.01

Entry into a Material Definitive Agreement.

 

On October 22, 2024, Panbela Therapeutics, Inc. (the “Company”) entered into a Note Purchase Agreement (the “Agreement”) with Nant Capital, LLC (the “Investor”). Pursuant to the Agreement, the Company (i) issued an interest-bearing Senior Convertible Promissory Tranche A Note (the “Tranche A Note”) for the principal sum of $2,850,000, and (ii) agreed to issue, on or before November 15, 2024, an interest-bearing Senior Convertible Promissory Tranche B Note (the “Tranche B Note,” and, together with the Tranche A Note, the “Notes”) for the principal sum of $9,150,000, in each case in exchange for a cash purchase price by the Investor to the Company equal to the same principal amounts.

 

The unpaid amounts payable under the Notes and the interest thereon are scheduled to become due and payable by the Company in full on the earliest to occur of (a) the date that is six months from the date of the Tranche A Note, (b) immediately before a change of control as defined in the Notes and (c) acceleration of the Notes upon an event of default as defined in the Notes (the “Maturity Date”). Interest on the outstanding principal amount of each Note will accrue from and including the date of issuance of such Note through and until full and final repayment in cash (or conversion pursuant to the terms of such Note) of all principal of and interest on such Note and all other outstanding Obligations (as defined in such Note). Interest on each Note will accrue at 8.00% plus the Monthly SOFR Rate (as defined in the Notes) and will be capitalized and paid in kind monthly until the Maturity Date. If an event of default under and as defined in a Note has occurred and is continuing, then all outstanding obligations under such Note will accrue interest at the default rate of 12% per annum plus the Monthly SOFR Rate, compounded monthly.

 

The Tranche A Note is convertible into shares of the Company’s common stock at a price per share equal to $0.37 upon the earlier of the Maturity Date and immediately prior to a Change of Control (as defined in the Tranche A Note). Pursuant to the Tranche A Note, the Investor has the right, at the Investor’s option, at any time on or before the Maturity Date, to convert all or a portion of the outstanding principal of the Tranche A Note and all or a portion of the accrued but unpaid interest on the Tranche A Note into the Company’s common stock at a price per share equal to $0.37. The Investor’s optional right of conversion is subject to an aggregate beneficial ownership cap of 33.33%. The Tranche B Note will be issued on substantially similar terms as the Tranche A Note.

 

The proceeds from the sale of the Notes will be used for the Company’s general corporate purposes and to repay certain existing indebtedness. The Agreement and Notes contain customary representations and warranties, affirmative and negative covenants and events of default for an unsecured financing arrangement. Also, the Company may not make any dividends or other distributions with respect to any equity interests in the Company or any of its subsidiaries, or any payment on account of the purchase, redemption, retirement, acquisition, cancellation or termination of any such equity interests or any option, warrant or other right to acquire any such equity interests, subject to certain limited exceptions for outstanding rights and equity compensation.

 

The Company’s wholly-owned subsidiaries, Cancer Prevention Pharmaceuticals, Inc. and Panbela Research, Inc. have entered into a Continuing Guaranty Agreement (the “Guaranty”) in favor of the Investor whereby each has agreed to guaranty the Company’s obligations under the Agreement and Notes.

 

The foregoing descriptions of the Agreement (including the form of Tranche B Note), Tranche A Note and Guaranty do not purport to be complete and are qualified in their entirety by reference to the full text of the Agreement, Tranche A Note and Guaranty, which are filed as Exhibit 10.1, Exhibit 10.2 and Exhibit 10.3, respectively, and are incorporated herein by reference.

 

Item 2.03.

Creation of a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement of a Registrant.

 

The disclosure under Item 1.01 of this Current Report on Form 8-K is incorporated herein by reference.

 

Item 3.02.

Unregistered Sales of Equity Securities.

 

The Tranche A Note was, and the Tranche B Note is expected to be, issued in reliance on the exemption from registration set forth in Section 4(a)(2) of the Securities Act of 1933, as amended (the “Securities Act”), as securities issued pursuant to a private placement.

 

 

Neither of the Notes issued (or promised to be issued) in the transactions contemplated herein have been registered under the Securities Act or applicable state securities laws and none may be offered or sold in the United States absent registration under the Securities Act, or an exemption from such registration requirements.

 

Cautionary Statement Regarding Forward-Looking Statements

 

This report contains “forward-looking statements,” including within the meaning of the Private Securities Litigation Reform Act of 1995. Forward-looking statements can be identified by words such as: “anticipate,” “believe,” “can,” “design,” “expect,” “focus,” “intend,” “may,” “plan,” “positioned,” “potential,” “will” and “would.” All statements other than statements of historical fact are statements that should be deemed forward-looking statements. Forward-looking statements are neither historical facts nor assurances of future performance. Instead, they are based only on our current beliefs, expectations, and assumptions regarding the future of our business, future plans and strategies, projections, anticipated events and trends, the economy and other future conditions. Because forward-looking statements relate to the future, they are subject to inherent uncertainties, risks and changes in circumstances that are difficult to predict and many of which are outside of our control. Our actual results and financial condition may differ materially and adversely from the forward-looking statements. Therefore, you should not rely on any of these forward-looking statements. Important factors that could cause our actual results and financial condition to differ materially from those indicated in the forward-looking statements include, among others, the following: (i) our ability to obtain additional capital, including the Tranche B Note, on acceptable terms or at all, required to implement our business plan; (ii) our lack of diversification and the corresponding risk of an investment in our Company and the corresponding risk of potential deterioration of our financial condition and results due to failure to diversify; (iii) our ability to obtain and maintain our listing on a national securities exchange; (iv) results, progress and success of our randomized Phase Ia/Ib and Phase II/III clinical trials; (v) our ability to demonstrate the safety and effectiveness of our product candidates: ivospemin ( SBP-101 ), Flynpovi, and eflornithine (CPP-1X); (vi) potential delays or risks to the success of our randomized Phase II/III clinical trial resulting from a termination in our relationship with our CRO; (vii) our ability to obtain regulatory approvals for our product candidates, SBP-101, Flynpovi and CPP-1X in the United States, the European Union or other international markets; (viii) the market acceptance and level of future sales of our product candidates, SBP-101, Flynpovi and CPP-1X; (ix) the cost and delays in product development that may result from changes in regulatory oversight applicable to our product candidates, SBP-101, Flynpovi and CPP-1X ; (x) the rate of progress in establishing reimbursement arrangements with third-party payors; (xi) the effect of competing technological and market developments; (xii) the costs involved in filing and prosecuting patent applications and enforcing or defending patent claims; and (xiii) such other factors as discussed in Part I, Item 1A under the caption “Risk Factors” in our most recent Annual Report on Form 10-K, any additional risks presented in our Quarterly Reports on Form 10-Q and our Current Reports on Form 8-K. Any forward-looking statement made by us in this report is based on information currently available to us and speaks only as of the date on which it is made. We undertake no obligation to publicly update any forward-looking statement or reasons why actual results would differ from those anticipated in any such forward-looking statement, whether written or oral, whether as a result of new information, future developments or otherwise.

 

Item 9.01

Financial Statements and Exhibits.

 

(d)

Exhibits.

 

Exhibit No.		Description
10.1*		Note Purchase Agreement, dated October 22, 2024, between Nant Capital, LLC, as Investor, and Panbela Therapeutics, Inc., as Company.
10.2		Senior Convertible Promissory Tranche A Note issued to Nant Capital, LLC, dated October 22, 2024.
10.3		Continuing Guaranty Agreement, dated October 22, 2024, made by Cancer Prevention Pharmaceuticals, Inc. and Panbela Research, Inc., in favor of Nant Capital, LLC
104		Cover Page Interactive Data File (the cover page XBRL tags are embedded in the inline XBRL document).

 

* Pursuant to Item 601(a)(5) of Regulation S-K, the exhibits and schedules to Exhibit 10.1 have been omitted from this report and will be furnished supplementally to the Commission upon request.

 

 

SIGNATURES

 

Pursuant to the requirements of the Securities Exchange Act of 1934, the Registrant has duly caused this Current Report to be signed on its behalf by the undersigned hereunto duly authorized.

 

	Panbela Therapeutics, Inc.
Date: October 28, 2024	By:	/s/ Susan Horvath
		Susan Horvath
		Chief Financial Officer

 

Exhibit 10.1

 

NOTE PURCHASE AGREEMENT

 

This Note Purchase Agreement, dated as of October 22, 2024 (this “Agreement”), is entered into by and among PANBELA THERAPEUTICS INC., a Delaware corporation (the “Company”), and NANT CAPITAL, LLC, a Delaware limited liability company (the “Investor”).

 

RECITALS

 

A.         On the terms and subject to the conditions set forth herein, Investor is willing to purchase from the Company, and the Company is willing to sell to Investor, senior convertible promissory notes in the aggregate principal amount set forth opposite Investor’s name on Schedule I hereto.

 

B.         Capitalized terms not otherwise defined herein shall have the meanings set forth in the forms of Notes (as defined below) attached hereto as Exhibit A-1 and Exhibit A-2.

 

AGREEMENT

 

NOW THEREFORE, in consideration of the foregoing, and the representations, warranties, and conditions set forth below, the parties hereto, intending to be legally bound, hereby agree as follows:

 

1.         The Notes.

 

(a)    Issuance of Tranche A Note. Subject to all of the terms and conditions hereof, the Company agrees to issue and sell to Investor, and Investor agrees to purchase, a senior convertible promissory note in the form of Exhibit A-1 hereto (the “Tranche A Note”) in the principal amount set forth opposite Investor’s name under the heading “Tranche A Note” on Schedule I hereto.

 

(b)    Issuance of Tranche B Note. Subject to all of the terms and conditions hereof, the Company agrees to issue and sell to Investor, and Investor agrees to purchase, a senior convertible promissory note in the form of Exhibit A-2 hereto (the “Tranche B Note”; and the Tranche B Note together with the Tranche A Note, the “Notes”) in the principal amount set forth opposite Investor’s name under the heading “Tranche B Note” on Schedule I hereto.

 

(c)    Delivery at Tranche A Closing. The sale and purchase of the Tranche A Note shall take place at a closing (the “Tranche A Closing”) to be held on the date on which the conditions specified in ‎Sections 4 and 5 are satisfied (or waived in accordance with ‎Section 6(a)) (the “Tranche A Closing Date”). At the Tranche A Closing, the Company will deliver to Investor the Tranche A Note to be purchased by Investor at such Tranche A Closing, against receipt by the Company of the corresponding purchase price set forth on Schedule I hereto (the “Tranche A Purchase Price”). The Tranche A Note of Investor will be registered in Investor’s name in the Company’s records.

 

(d)    Delivery at Tranche B Closing. The sale and purchase of the Tranche B Note shall take place at a closings (the “Tranche B Closing”, and together with the Tranche A Closing, each a “Closing” and collectively, the “Closings”) to be held on the date on which the conditions specified in ‎Sections 4 and 5 are satisfied (or waived in accordance with ‎Section 6(a)) (the “Tranche B Closing Date”, and together with the Tranche A Closing Date, each a “Closing Date” and collectively, the “Closing Dates”). At the Tranche B Closing, the Company will deliver to Investor the Tranche B Note to be purchased by Investor at such Tranche B Closing, against receipt by the Company of the corresponding purchase price set forth on Schedule I hereto (the “Tranche B Purchase Price”). The Tranche B Note of Investor will be registered in Investor’s name in the Company’s records.

 

 

(e)    Use of Proceeds. The proceeds of the sale and issuance of the Notes shall be used (i) for the Company’s general corporate purposes and (ii) to repay the Existing Indebtedness.

 

(f)    Payments. The Company will make all cash payments due under each Note in immediately available funds by 2:00 p.m. Pacific time on the date such payment is due at the address for such purpose specified below Investor’s name on Schedule I hereto, or at such other address, or in such other manner, as Investor or other registered holder of such Note may from time to time direct in writing.

 

2.         Representations and Warranties of the Company. The Company represents and warrants to Investor that:

 

(a)    No “Bad Actor” Disqualification. The Company has exercised reasonable care, in accordance with Securities and Exchange Commission rules and guidance, to determine whether any Covered Person (as defined below) is subject to any of the “bad actor” disqualifications described in Rule 506(d)(1)(i) through (viii) under the Securities Act (“Disqualification Events”). To the Company’s knowledge, no Covered Person is subject to a Disqualification Event. The Company has complied, to the extent applicable, with any disclosure obligations under Rule 506(e) under the Securities Act. “Covered Persons” are those persons specified in Rule 506(d)(1) under the Securities Act, including the Company; any predecessor or affiliate of the Company; any director, executive officer, other officer participating in the offering, general partner or managing member of the Company; any beneficial owner of 20% or more of the Company’s outstanding voting equity securities, calculated on the basis of voting power; any promoter (as defined in Rule 405 under the Securities Act) connected with the Company in any capacity at the time of the sale of any Note; and any person that has been or will be paid (directly or indirectly) remuneration for solicitation of purchasers in connection with the sale of any Note (a “Solicitor”), any general partner or managing member of any Solicitor, and any director, executive officer or other officer participating in the offering of any Solicitor or general partner or managing member of any Solicitor.

 

3.         Representations and Warranties of Investor. Investor represents and warrants to the Company upon the acquisition of a Note as follows:

 

(a)    Binding Obligation. Investor has full legal capacity, power and authority to execute and deliver this Agreement and to perform its obligations hereunder. This Agreement constitutes the valid and binding obligation of Investor, enforceable in accordance with its terms, except as limited by bankruptcy, insolvency or other laws of general application relating to or affecting the enforcement of creditors’ rights generally and general principles of equity.

 

(b)    Securities Law Compliance. Investor has been advised that the Notes and the underlying securities have not been registered under the Securities Act, or any state securities laws and, therefore, cannot be resold unless they are registered under the Securities Act and applicable state securities laws or unless an exemption from such registration requirements is available. Investor is aware that the Company is under no obligation to effect any such registration with respect to the Notes or the underlying securities or to file for or comply with any exemption from registration. Investor has not been formed solely for the purpose of making this investment and is purchasing the Notes to be acquired by Investor hereunder for its own account for investment, not as a nominee or agent, and not with a view to, or for resale in connection with, the distribution thereof, and Investor has no present intention of selling, granting any participation in, or otherwise distributing the same. Investor has such knowledge and experience in financial and business matters that Investor is capable of evaluating the merits and risks of such investment, is able to incur a complete loss of such investment without impairing Investor’s financial condition and is able to bear the economic risk of such investment for an indefinite period of time. Investor is an accredited investor as such term is defined in Rule 501 of Regulation D under the Securities Act and shall submit to the Company such further assurances of such status as may be reasonably requested by the Company. Investor has furnished or made available any and all information requested by the Company or otherwise necessary to satisfy any applicable verification requirements as to accredited investor status. Any such information is true, correct, timely and complete. The residency of Investor (or, in the case of a partnership or corporation, such entity’s principal place of business) is correctly set forth beneath Investor’s name on Schedule I hereto.

 

 

(c)    Tax Advisors. Investor has reviewed with its own tax advisors the U.S. federal, state and local and non-U.S. tax consequences of this investment and the transactions contemplated by this Agreement. With respect to such matters, Investor relies solely on any such advisors and not on any statements or representations of the Company or any of its agents, written or oral. Investor understands that it (and not the Company) shall be responsible for its own tax liability that may arise as a result of this investment and the transactions contemplated by this Agreement.

 

(d)    No “Bad Actor” Disqualification Events. Neither (i) Investor, (ii) any of its directors, executive officers, other officers that may serve as a director or officer of any company in which it invests, general partners or managing members, nor (iii) any beneficial owner of any of the Company’s voting equity securities (in accordance with Rule 506(d) of the Securities Act) held by Investor is subject to any Disqualification Event (as defined in Section 2(o)), except for Disqualification Events covered by Rule 506(d)(2)(ii) or (iii) or (d)(3) under the Securities Act.

 

4.         Conditions to Closings of the Investor. Investor’s obligations at each Closing are subject to the fulfillment, on or prior to the Closing Date for such Closing, of all of the following conditions, any of which may be waived in whole or in part by the Investor:

 

(a)    Representations and Warranties. The representations and warranties made by each Obligor in the Transaction Documents shall have been true and correct when made, and shall be true and correct on such Closing Date.

 

(b)    Governmental Approvals and Filings. Except for any notices required or permitted to be filed after such Closing Date with certain federal and state securities commissions, the Company shall have obtained all governmental approvals required in connection with the lawful sale and issuance of the Note to be sold and issued at such Closing.

 

(c)    Legal Requirements. At such Closing, the sale and issuance by the Company, and the purchase by the Investor, of the Note to be sold and issued at such Closing shall be legally permitted by all laws and regulations to which the Investor or the Company are subject.

 

(d)    Proceedings and Documents. All corporate and other proceedings in connection with the transactions contemplated at such Closing and all documents and instruments incident to such transactions shall be reasonably satisfactory in substance and form to Investor.

 

(e)    Transaction Documents. The Company and other Obligors shall have duly executed and delivered to the Investor the following documents, each in form and substance satisfactory to Investor:

 

(i)    This Agreement;

 

(ii)    At the Tranche A Closing, the Tranche A Note issued hereunder;

 

(iii)    At the Tranche B Closing, the Tranche B Note issued hereunder; and

 

(iv)    The Guaranty in the form of Exhibit B hereto (the “Guaranty”).

 

 

(f)    Existing Indebtedness. For the Tranche A Closing, evidence of the contemporaneous payment in full of all Existing Indebtedness payable to USWM, LLC and D. Robert Schemel and the release of any and all obligations of the Obligors under, and any and all liens securing, such Existing Indebtedness. For the Tranche B Closing, evidence of the contemporaneous payment in full of all remaining Existing Indebtedness and the release of any and all obligations of the Obligors under, and any and all liens securing, such Existing Indebtedness.

 

(g)    Corporate Documents. The Company shall have delivered to the Investor each of the following:

 

(i)    A certificate of the Secretary of each Obligor, dated such Closing Date, certifying (a) that the constitutive documents of such Obligor are in full force and effect and have not been amended, supplemented, revoked or repealed since the date of such certification; (b) that attached thereto are true and correct copies of resolutions duly adopted by the Board of Directors (or equivalent) of such Obligor and continuing in effect, which authorize the execution, delivery and performance by such Obligor of the Transaction Documents to which such Obligor is party and the consummation of the transactions contemplated hereby and thereby; and

 

(ii)    A Certificate of Good Standing or comparable certificate as to each Obligor, certified as of a recent date prior to such Closing Date by the Secretary of State of the state of incorporation of such Obligor.

 

(h)    Tranche B Closing. For the Tranche B Closing, the Tranche B Closing Date shall occur on or before November 15, 2024.

 

5.         Conditions to Obligations of the Company. The Company’s obligation to issue and sell the applicable Note at each Closing is subject to the fulfillment, on or prior to the Closing Date for such Closing, of the following conditions, any of which may be waived in whole or in part by the Company:

 

(a)    Representations and Warranties. The representations and warranties made by the Investor in Section 3 hereof shall be true and correct when made, and shall be true and correct on such Closing Date.

 

(b)    Governmental Approvals and Filings. Except for any notices required or permitted to be filed after such Closing Date with certain federal and state securities commissions, the Company shall have obtained all governmental approvals required in connection with the lawful sale and issuance of the Note.

 

(c)    Legal Requirements. At such Closing, the sale and issuance by the Company, and the purchase by the Investor, of the Note to be issued and sold at such Closing, shall be legally permitted by all laws and regulations to which Investor or the Company are subject.

 

(d)    Tranche A Purchase Price. For the Tranche A Closing, Investor shall have delivered to the Company the Tranche A Purchase Price in respect of the Tranche A Note being purchased by Investor referenced in Section 1(c) hereof.

 

(e)    Tranche B Purchase Price. For the Tranche B Closing, Investor shall have delivered to the Company the Tranche B Purchase Price in respect of the Tranche B Note being purchased by Investor referenced in Section 1(d) hereof.

 

 

6.         Miscellaneous.

 

(a)    Waivers and Amendments. Any provision of this Agreement or any other Transaction Document may be amended, waived or modified only upon the prior written consent of the Company and the Investor. Any amendment or waiver effected in accordance with this paragraph shall be binding upon all of the parties hereto.

 

(b)    Governing Law. This Agreement and all actions arising out of or in connection with this Agreement shall be governed by and construed in accordance with the laws of the State of California, without regard to the conflicts of law provisions of the State of California or of any other state.

 

(c)    Survival. The representations, warranties, covenants and agreements made herein shall survive the execution and delivery of this Agreement.

 

(d)    Successors and Assigns. Subject to the restrictions on transfer described in Sections 6(e) and 6(f) below, the rights and obligations of the Company and the Investor shall be binding upon and benefit the successors, assigns, heirs, administrators and transferees of the parties.

 

(e)    Registration, Transfer and Replacement of the Notes. Each Note issuable under this Agreement shall be a registered note. The Company will keep, at its principal executive office, books for the registration and registration of transfer of the Notes. Prior to presentation of any Note for registration of transfer, the Company shall treat the Person in whose name such Note is registered as the owner and holder of such Note for all purposes whatsoever, whether or not such Note shall be overdue, and the Company shall not be affected by notice to the contrary. Subject to any restrictions on or conditions to transfer set forth in any Note, the holder of any Note, at its option, may in person or by duly authorized attorney surrender the same for exchange at the Company’s chief executive office, and promptly thereafter and at the Company’s expense, except as provided below, receive in exchange therefor one or more new Note(s), each in the principal requested by such holder, dated the date to which interest shall have been paid on the Note so surrendered or, if no interest shall have yet been so paid, dated the date of the Note so surrendered and registered in the name of such Person or Persons as shall have been designated in writing by such holder or its attorney for the same principal amount as the then unpaid principal amount of the Note so surrendered. Upon receipt by the Company of evidence reasonably satisfactory to it of the ownership of and the loss, theft, destruction or mutilation of any Note and (a) in the case of loss, theft or destruction, of indemnity reasonably satisfactory to it; or (b) in the case of mutilation, upon surrender thereof, the Company, at its expense, will execute and deliver in lieu thereof a new Note executed in the same manner as the Note being replaced, in the same principal amount as the unpaid principal amount of such Note and dated the date to which interest shall have been paid on such Note or, if no interest shall have yet been so paid, dated the date of such Note.

 

(f)    Assignment by the Company. The rights, interests or obligations under any Transaction Document may not be assigned, by operation of law or otherwise, in whole or in part, by the Company without the prior written consent of the Investor.

 

(g)    Entire Agreement. This Agreement together with the other Transaction Documents constitute and contain the entire agreement among the Company and Investor and supersede any and all prior agreements, negotiations, correspondence, understandings and communications among the parties, whether written or oral, respecting the subject matter hereof.

 

(h)    Notices. All notices, requests, demands, consents, instructions or other communications required or permitted hereunder shall in writing and faxed, mailed or delivered to each party as follows: (i) if to Investor, at Investor’s address or email set forth in the Schedule of Investor attached as Schedule I, or at such other address as Investor shall have furnished the Company in writing, or (ii) if to the Company, at 712 Vista Blvd #305, Waconia, MN 55387 or at such other address as the Company shall have furnished to the Investor in writing. All such notices and communications will be deemed effectively given the earlier of (i) when received, (ii) when delivered personally, (iii) one business day after being delivered by email (with receipt of appropriate confirmation), (iv) one business day after being deposited with an overnight courier service of recognized standing or (v) four days after being deposited in the U.S. mail, first class with postage prepaid.

 

 

(i)    Expenses. The Company shall pay on written demand all reasonable fees and expenses, including reasonable attorneys’ fees and expenses in connection with the preparation, execution and delivery of this Agreement and the other Transaction Documents. The Company shall pay on written demand all reasonable fees and expenses, including reasonable attorneys’ fees and expenses, incurred by Investor with respect to any amendments or waivers hereof requested by the Company or in the enforcement or attempted enforcement of any of the obligations of the Company to the Investor under the Transaction Documents or in preserving any of the Investor’ rights and remedies (including, without limitation, all such reasonable attorneys’ fees and expenses incurred in connection with any “workout” or restructuring affecting the Transaction Documents or the obligations thereunder or any bankruptcy or similar proceeding involving the Company or any of its subsidiaries).

 

(j)    Severability of this Agreement. If any provision of this Agreement shall be judicially determined to be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.

 

(k)    Counterparts. This Agreement may be executed in one or more counterparts, each of which will be deemed an original, but all of which together will constitute one and the same agreement. Facsimile copies of signed signature pages will be deemed binding originals.

 

(Signature Page Follows)

 

 

The parties have caused this Agreement to be duly executed and delivered by their proper and duly authorized officers as of the date and year first written above.

 

 

COMPANY:   PANBELA THERAPEUTICS, INC., a Delaware corporation     By:         /s/ Jennifer K. Simpson Name:    Jennifer K. Simpson                                                Title:      Chief Executive Officer                                               INVESTOR:   NANT CAPITAL, LLC, a Delaware limited liability company     By:         /s/ Charles Kenworthy                                            Name:    Charles Kenworthy                                                 Title:      Manager

 

 

SCHEDULE I

 

SCHEDULE OF INVESTOR

 

Investor Name and Address		Tranche A Note Amount		Tranche B Note Amount
Nant Capital, LLC		$2,850,000		$9,150,000
Address for all notices:   Nant Capital, LLC 450 Duley Road El Segundo, CA 90245 Attn: Charles N. Kenworthy Email copy: [redacted]

 

 

Exhibit A-1

 

FORM OF TRANCHE A NOTE

 

 

Exhibit A-2

 

FORM OF TRANCHE B NOTE

 

 

Exhibit B

 

FORM OF GUARANTY

 

Exhibit 10.2

Execution Version

 

 

THIS NOTE AND THE SECURITIES ISSUABLE UPON THE CONVERSION OF THIS CONVERTIBLE PROMISSORY NOTE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “ACT”), OR ANY APPLICABLE STATE SECURITIES LAWS, AND MAY NOT BE SOLD, PLEDGED, OFFERED FOR SALE, OR OTHERWISE TRANSFERRED, PLEDGED OR HYPOTHECATED WITHOUT AN EFFECTIVE REGISTRATION THEREOF UNDER THE ACT AND ANY APPLICABLE STATE SECURITIES LAWS, OR PURSUANT TO RULE 144 OR AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE ACT AND ANY APPLICABLE STATE SECURITIES LAWS.

 

PANBELA THERAPEUTICS, INC.

 

SENIOR CONVERTIBLE PROMISSORY TRANCHE A NOTE

 

October 22, 2024

$2,850,000         

 

For value received, PANBELA THERAPEUTICS, INC., a Delaware corporation (the “Company”), hereby promises to pay to NANT CAPITAL, LLC, a Delaware limited liability company, or its registered assigns (“Investor”), in lawful money of the United States of America, the principal sum of Two Million Eight Hundred Fifty Thousand Dollars ($2,850,000), together with interest from the date of this Senior Convertible Promissory Tranche A Note (this “Note”) on the outstanding principal balance until payment in full at a rate equal to Applicable Rate, computed on the basis of the actual number of days elapsed and a year of 365 days.

 

1.           Definitions. As used in this Note, the following capitalized terms have the following meanings:

 

(a)           “Affiliate” means, with respect to a specified Person, another Person that directly, or indirectly through one or more intermediaries, Controls or is Controlled by or is under common Control with the Person specified; provided, none of Investor nor any Affiliates of Investor shall constitute an Affiliate of the Company for all purposes of the Transaction Documents.

 

(b)           “Applicable Rate” shall mean 8.00% plus the Monthly SOFR Rate (as defined below).

 

(c)           “Change of Control” shall mean (i) any “person” or “group” (within the meaning of Section 13(d) and 14(d) of the Securities Exchange Act of 1934, as amended), becomes the “beneficial owner” (as defined in Rule 13d-3 under the Securities Exchange Act of 1934, as amended), directly or indirectly, of more than 50% of the outstanding voting securities of the Company having the right to vote for the election of members of the Board of Directors of the Company, (ii) any reorganization, merger or consolidation of the Company or any Subsidiary, other than a transaction or series of related transactions in which the holders of the voting securities of the Company outstanding immediately prior to such transaction or series of related transactions retain, immediately after such transaction or series of related transactions, at least a majority of the total voting power represented by the outstanding voting securities of the Company or such other surviving or resulting entity, (iii) a sale, lease or other disposition of all or substantially all of the assets of the Company or any Subsidiary, or (iv) if the Company fails to own, directly or indirectly, 100% of the equity of each Subsidiary.

 

(d)           “Company Intellectual Property” shall mean all patents, patent applications, trademarks, trademark applications, service marks, tradenames, copyrights, trade secrets, licenses, domain names, mask works, information and proprietary rights and processes, and all other intellectual property, of the Company and its Subsidiaries.

 

(e)           “Company” includes the Company initially executing this Note and any Person which shall succeed to or assume the obligations of the Company under this Note.

 

(f)           “Contingent Obligation” is, for any Person, any direct or indirect liability of that Person for (a) any direct or indirect guaranty by such Person of any indebtedness, lease, dividend, letter of credit, credit card or other obligation of another; (b) any other obligation endorsed, co-made, discounted or sold with recourse by that Person, or for which that Person is directly or indirectly liable; (c) any obligations for undrawn letters of credit for the account of that Person; and (d) all obligations from any interest rate, currency or commodity swap agreement, interest rate cap or collar agreement, or other agreement or arrangement designated to protect a Person against fluctuation in interest rates, currency exchange rates or commodity prices; but “Contingent Obligation” does not include endorsements in the ordinary course of business. The amount of a Contingent Obligation is the stated or determined amount of the primary obligation for which the Contingent Obligation is made or, if not determinable, the maximum reasonably anticipated liability for it determined by the Person in good faith; but the amount may not exceed the maximum of the obligations under any guarantee or other support arrangement.

 

(g)           “Control” means the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of a Person, whether through the ability to exercise voting power, by contract or otherwise. “Controlling” and “Controlled” have meanings correlative thereto.

 

(h)           “Default” means any event or condition which constitutes an Event of Default or which upon notice, lapse of time or both would, unless cured or waived, become an Event of Default.

 

(i)           “Existing Indebtedness” means (A) the Subordinated Promissory Notes issued by the Company to each of (1) D. Robert Schemel dated August 8, 2024 in the principal amount of $100,000, (2) Michael T. Cullen dated August 19, 2024 in the principal amount of $50,000, (2) Thomas X. Neenan dated August 22, 2024 in the principal amount of $50,000, and (3) Myriad Properties, LLC dated August 23, 2024 in the principal amount of $500,000; and (B) the Term Promissory Note dated July 24, 2024 issued by the Company and Cancer Prevention Pharmaceuticals, Inc. to USWM, LLC in the principal amount of $1,500,000.

 

(j)           “Event of Default” has the meaning set forth in Section 5 below.

 

(k)           “Federal Reserve Bank of New York’s Website” shall mean the website of the Federal Reserve Bank of New York, as of the date of this Note at http://www.newyorkfed.org, or any successor source.

 

(l)           “Guarantors” means the Subsidiaries of the Company that are not Immaterial Subsidiaries.

 

(m)           “Guaranty” shall mean the Subsidiary Guaranty, dated as of the date hereof (as amended, modified or supplemented), made by the Guarantors in favor of the Investor.

 

(n)           “Immaterial Subsidiary” means any Subsidiary whose assets or revenues constitute less than 5% of the total assets or total revenues of the Company and its Subsidiaries.

 

(o)           “Indebtedness” is (a) indebtedness for borrowed money or the deferred price of property or services, such as reimbursement and other obligations for surety bonds and letters of credit, (b) obligations evidenced by notes, bonds, debentures or similar instruments, (c) capital lease obligations, (d) Contingent Obligations and (e) other short- and long-term debt obligations under debt agreements, lines of credit and extensions of credit.

 

 

(p)           “Investor” shall mean the Person specified in the introductory paragraph of this Note or any Person who shall at the time be the registered holder of this Note.

 

(q)           “Lien” is a claim, mortgage, deed of trust, levy, attachment charge, pledge, hypothecation, security interest or other encumbrance of any kind, whether voluntarily incurred or arising by operation of law or otherwise against any property.

 

(r)           “Material Adverse Effect” means a material adverse effect on (i) the business, assets, operations or condition, financial or otherwise, of the Company and the Subsidiaries taken as a whole, (ii) the ability of an Obligor to perform any of its Obligations or (iii) the rights of or benefits available to the Investor under any Transaction Document.

 

(s)           “Material Indebtedness” means Indebtedness (other than the Obligations), of any one or more of the Company and its Subsidiaries (i) in an aggregate principal amount exceeding $25,000 or (ii) arising out of the Sucampo Debt.

 

(t)           “Maturity Date” shall mean the earliest of (i) six (6) months from the date of this Note, (ii) immediately prior to a Change of Control, or (iii) when, upon the occurrence of an Event of Default, any Obligations become due and payable prior to the date described in clause (i) of this definition.

 

(u)           “Note” means this Convertible Promissory Tranche A Note.

 

(v)           “Obligations” means all advances to, and debts, liabilities, obligations, covenants and duties of, the Company arising under any Transaction Document or otherwise with respect to this Note, whether direct or indirect (including those acquired by assumption), absolute or contingent, due or to become due, now existing or hereafter arising and including interest and fees that accrue after the commencement by or against the Company or any affiliate thereof of any proceeding under any debtor relief laws naming such Person as the debtor in such proceeding, regardless of whether such interest and fees are allowed or allowable claims in such proceeding. Without limiting the foregoing, the Obligations include the obligation to pay principal, interest, expenses, fees, indemnities and other amounts payable by the Company under any Transaction Document.

 

(w)           “Obligors” means the Company and the Guarantors.

 

(x)           “Permitted Dispositions” shall mean: (a) dispositions of obsolete or worn out property in the ordinary course of business, (b) Restricted Payments permitted by ‎Section 7(b)(iv) hereof and investments permitted by ‎Section 7(b)(vii) hereof, and (c) dispositions of inventory and Permitted Investments in the ordinary course of business.

 

(y)           “Permitted Indebtedness” shall mean: (a) the obligations under this Note; (b) Indebtedness that is expressly subordinated to the Obligations pursuant to a subordination agreement in form and substance satisfactory to Investor; (c) Indebtedness consisting of the endorsement of negotiable instruments for deposit or collection of similar transaction in the ordinary course of business; (d) Indebtedness arising from judgments not constituting an Event of Default; (e) Indebtedness consisting of customer deposits and advance payments received in the ordinary course of business; (f) unsecured trade debt in the ordinary course of business; and (g) other Indebtedness in an aggregate principal amount of up to $25,000 at any time outstanding.

 

 

(z)           “Permitted Investments” shall mean: (a) direct obligations of, or obligations the principal of and interest on which are unconditionally guaranteed by, the United States of America (or by any agency thereof to the extent such obligations are backed by the full faith and credit of the United States of America), in each case maturing within one year from the date of acquisition thereof; (b) investments in commercial paper maturing within 270 days from the date of acquisition thereof and having, at such date of acquisition, the highest credit rating obtainable from Standard & Poor’s or from Moody’s; (c) investments in certificates of deposit, banker’s acceptances and time deposits maturing within 180 days from the date of acquisition thereof issued or guaranteed by or placed with, and money market deposit accounts issued or offered by, any domestic office of any commercial bank organized under the laws of the United States of America or any State thereof which has a combined capital and surplus and undivided profits of not less than $500,000,000; (d) fully collateralized repurchase agreements with a term of not more than 30 days for securities described in clause (a) of this definition and entered into with a financial institution satisfying the criteria described in clause (c) of this definition; and (e) money market funds that (i) comply with the criteria set forth in SEC Rule 2a-7 under the Investment Company Act of 1940, (ii) are rated AAA by Standard & Poor’s and Aaa by Moody’s and (iii) have portfolio assets of at least $5,000,000,000.

 

(aa)           “Permitted Liens” shall mean: (a) Liens existing on the date of this Note and disclosed in writing to Investor; (b) Liens for taxes, fees, assessments or other governmental charges or levies, either not delinquent or being contested in good faith by appropriate proceedings and with adequate reserves; (c) Liens arising from attachments or judgments not constituting an Event of Default; (d) Liens on insurance proceeds securing the payment of financed insurance premiums; (e) Liens in favor of financial institutions arising in connection with deposit, securities and other investment accounts at such institutions in the ordinary course of business; (f) Liens in favor of customs or revenue authorities arising as a matter of law to secure payment of customs duties in connection with the importation of goods; (g) non-exclusive licenses of intellectual property and licenses that do not result in a legal transfer of title of the licensed property but that may be exclusive in respects other than territory and that may be exclusive as to territory only as to discrete geographical areas outside of the United States; (h) Liens securing the Obligations; (i) carrier’s, warehousemen’s, mechanics’, materialmen’s, repairmen’s or other like Liens arising in the ordinary course of business; and (j) deposits or Liens in the ordinary course of business under worker’s compensation, unemployment insurance, social security and other similar laws, or to secure the performance of bids, trade contracts (other than for repayment of borrowed money), or to secure indemnity, performance or similar bonds for the performance of bids, tender or contracts (other than for the repayment of borrowed money), or to secure contracts for the purchase of property, leases, subleases, licenses, sublicenses, statutory obligations, surety and appeals bonds, performance bonds and other obligations of a like nature, in each case, either incurred in the ordinary course of business or in connection with transactions not expressly prohibited hereunder.

 

(bb)           “Person” shall mean and include an individual, a partnership, a corporation (including a business trust), a joint stock company, a limited liability company, an unincorporated association, a joint venture or other entity or a governmental authority.

 

(cc)           “Purchase Agreement” shall mean the Note Purchase Agreement, dated as of the date hereof (as amended, modified or supplemented), by and among the Company and the Investor.

 

(dd)           “Restricted Payment” means any dividend or other distribution (whether in cash, securities or other property) with respect to any equity interests in the Company or any Subsidiary, or any payment (whether in cash, securities or other property), including any sinking fund or similar deposit, on account of the purchase, redemption, retirement, acquisition, cancellation or termination of any such equity interests or any option, warrant or other right to acquire any such equity interests.

 

 

(ee)           “SEC Reports” means all reports, schedules, forms, statements and other documents filed by the Company under the Securities Act of 1933, as amended, and the Securities and Exchange Act of 1934, as amended, including pursuant to Section 13(a) or 15(d) thereof and the rules and regulations promulgated thereunder, for the two years preceding the date hereof (or such shorter period as the Company was required by law or regulation to file such material), including any exhibits thereto and documents incorporated by reference therein.

 

(ff)           “SOFR Rate” shall mean, with respect to any date, the secured overnight financing rate published for such day by the Federal Reserve Bank of New York, as the administrator of the benchmark (of a successor administrator), on the Federal Reserve Bank of New York’s Website.

 

(gg)           “SOFR Rate Determination Date” shall mean (i) for the first such date, the date of this Note, and (ii) for each date thereafter, the penultimate business day of each month following the issuance of this Note.

 

(hh)           “Subsidiary” means, with respect to any Person (the “parent”) at any date, any corporation, limited liability company, partnership, association or other entity the accounts of which would be consolidated with those of the parent in the parent’s consolidated financial statements if such financial statements were prepared in accordance with GAAP as of such date, as well as any other corporation, limited liability company, partnership, association or other entity (1) of which securities or other ownership interests representing more than 50% of the equity or more than 50% of the ordinary voting power or, in the case of a partnership, more than 50% of the general partnership interests are, as of such date, owned, controlled or held, or (2) that is, as of such date, otherwise Controlled by the parent and/or one or more subsidiaries of the parent.

 

(ii)           “Sucampo Debt” means the outstanding indebtedness evidenced by a Convertible Promissory Note issued by Cancer Prevention Pharmaceuticals, Inc. to Sucampo AG, dated September 6, 2017 with an initial principal amount of $5,000,000.

 

(jj)           “Tranche B Notes” means any and all Tranche B Notes issued under and as defined in the Purchase Agreement.

 

(kk)           “Transaction Documents” shall mean this Note, any and all Tranche B Notes, the Purchase Agreement and the Guaranty.

 

2.	PIK Interest; Payments Generally; Tax Treatment.

 

(a)           The unpaid principal amount of this Note and the interest hereon shall be due and payable in full on the Maturity Date. Interest on the outstanding principal amount of this Note shall accrue from and including the date of issuance of this Note through and until full and final repayment in cash (or conversion in full pursuant to Section 4 hereof) of all principal of this Note, all interest on this Note and all other outstanding Obligations, at the Applicable Rate, computed on the basis of the actual number of days elapsed and a year of 365 days. Accrued but unpaid interest on this Note (including default interest accruing pursuant to Section 8 hereof) shall be capitalized and added to the unpaid principal amount of this Note on each SOFR Rate Determination Date until the Maturity Date. Any interest to be so capitalized pursuant to the immediately preceding sentence is the “PIK Amount” in respect of this Note and shall be capitalized, in arrears, on each SOFR Rate Determination Date, and added to the then outstanding principal amount of this Note and shall bear interest as provided hereunder as if it had originally been part of the outstanding principal of this Note. Amounts representing such PIK Amounts shall be treated as principal of this Note for all purposes of the Transaction Documents and shall bear interest in accordance with this Section 2(a). The obligation of the Company to pay such PIK Amounts so added shall be automatically evidenced by this Note.

 

 

(b)           The Company shall make any payments required to be made by it hereunder (whether of principal, interest, fees or otherwise) in U.S. dollars prior to 2:00 pm, Los Angeles City time, on the date when due or the date fixed for any payment or prepayment hereunder, in immediately available funds, without setoff, recoupment or counterclaim. If any payment hereunder shall be due on a day that is not a business day, the date for payment shall be extended to the next succeeding business day, and, in the case of any payment accruing interest, interest thereon shall be payable for the period of such extension. If not repaid prior to the Maturity Date or converted on the Maturity Date pursuant to Section 4(c) below, the Company shall pay to Investor all unpaid principal of this Note together with all accrued but unpaid interest on this Note, plus any other outstanding Obligations (including without limitation all outstanding PIK Amounts), in cash on the Maturity Date.

 

3.           SOFR Matters. The Monthly SOFR Rate component of the Applicable Rate shall be calculated as of each SOFR Rate Determination Date and apply from such date until the succeeding SOFR Rate Determination Date. For each such period beginning on a SOFR Rate Determination Date, “Monthly SOFR Rate” means the rate determined in accordance with the following provisions:

 

(a)           The Company will determine the Monthly SOFR Rate, which will be the average of the SOFR on each of the thirty days that immediately precede a SOFR Rate Determination Date.

 

(b)           If the Monthly SOFR Rate cannot be determined as described above on the applicable SOFR Rate Determinate Date, the rate for such period until the next SOFR Rate Determination Date shall be the rate as in effect immediately prior to such SOFR Rate Determination Date.

 

4.           Conversion.

 

(a)           Conversion on Change of Control. In the event of any Change of Control prior to (a) payment in full of the original principal amount of this Note, any accrued but unpaid interest hereon and all other outstanding Obligations, or (b) conversion in full of this Note into Securities of the Company, then at the option of Investor, the outstanding principal balance of this Note and any accrued but unpaid interest hereon shall be repaid or converted immediately prior to such Change of Control into fully paid and nonassessable shares of common stock of the Company (the “Securities”) at a price per share equal to $0.37 (subject to appropriate adjustment from time to time for any stock dividend, stock split, combination of shares, reorganization, recapitalization, reclassification or other similar event) (the “Conversion Price”). The Company shall provide Investor with written notice of the Change of Control, which notice shall describe the material terms of the proposed transaction, at least ten (10) business days prior to the expected closing date of the transaction constituting a Change of Control.

 

(b)           Optional Conversion. Subject to Section 4(d) hereof, Investor has the right, at Investor’s option, at any time on or before the Maturity Date, to convert all or a portion of the outstanding principal of this Note and all or a portion of the accrued but unpaid interest on this Note into the Securities at a price per share equal to the Conversion Price (subject to appropriate adjustment from time to time for any stock dividend, stock split, combination of shares, reorganization, recapitalization, reclassification or other similar event). Any and all outstanding Obligations which are not so converted into Securities pursuant to this Section 4(b) due to the Conversion Cap shall remain outstanding and the Company shall continue to be obligated to repay such Obligations in cash under the Transaction Documents.

 

(c)           Conversion on Maturity. If this Note has not previously been either repaid in full in cash or converted in full into Securities pursuant to Sections 4(a) or 4(b) hereof, on the Maturity Date the Investor shall have the option, at Investor’s sole and absolute discretion, to convert all of the then outstanding principal amount of, and all accrued but unpaid interest on, this Note into the Securities at a price per share equal to the Conversion Price (subject to appropriate adjustment from time to time for any stock dividend, stock split, combination of shares, reorganization, recapitalization, reclassification or other similar event).

 

 

(d)           Conversion Cap. Notwithstanding anything to the contrary in this Note, in the event of a conversion of this Note pursuant to Section 4(b) hereof, nothing in this Note shall require the Company to issue any Securities to Investor to the extent such issuance would result in the Investor (together with the Investor’s Affiliates, and any other persons acting as a group together with the Investor or any of Investor’s Affiliates) beneficially owning (as determined pursuant to Rule 13d-3 under the Securities Exchange Act of 1934, as amended) in excess of 33.33% of the number of shares of the Company’s common stock outstanding immediately after giving effect to such issuance(the “Conversion Cap”). For the avoidance of doubt, this Section 4(d) shall not apply to any conversion of this Note pursuant to Sections 4(a) and 4(c).

 

(e)           Mechanics of Conversion. The conversion of this Note shall be conducted in the following manner:

 

(i)           Investor’s Delivery Requirements. To convert the principal and accrued interest then outstanding under this Note into the Securities, Investor shall deliver to the Company a fully executed notice of conversion in the form attached hereto as Appendix I (the “Conversion Notice”).

 

(ii)           Company’s Response. Upon receipt by the Company of the Conversion Notice, the Company shall promptly issue and deliver to Investor certificate(s) representing the Securities (if certificated).

 

(iii)           Record Holder. The Person or Persons entitled to receive the Securities issuable upon the conversion of this Note shall be treated for all purposes as the record holder or holders of such Securities on the date of issuance of such Securities.

 

(f)           Fractional Securities; Interest; Effect of Conversion. No fractional shares shall be issued upon conversion of this Note. In lieu of the Company issuing any fractional shares to Investor upon the conversion of this Note, the Company shall pay to Investor an amount equal to the product obtained by multiplying the applicable Conversion Price by the fraction of a share not issued pursuant to the applicable conversion. Upon conversion of this Note in full and the payment of any amounts specified in this Section 4(f), the Company shall be forever released from all its obligations and liabilities under this Note.

 

5.           Events of Default. The occurrence of any of the following shall constitute an “Event of Default” under the Transaction Documents:

 

(a)           Breach of Representations and Warranties. Unless waived in writing by Investor, any representation, warranty or statement made or furnished by or on behalf of any Obligor in or in connection with any Transaction Document shall be false, incorrect, incomplete or misleading in any material respect on the date made or furnished;

 

(b)           Payment. Company shall fail to pay when due (i) any principal of this Note or any Tranche B Note or (ii) any interest on or any other amount payable under this Note or any other Transaction Document;

 

(c)           Breach of Term or Covenant. Any Obligor shall default in the due performance or observance of any term, covenant or agreement contained (whether by incorporation by reference or otherwise) in the Guaranty or in Section 7(b) or Section 7(c) of this Note;

 

 

(d)           Other Breach of Term or Covenant. Any Obligor shall default in the due performance or observance of any other term, covenant or agreement contained (whether by incorporation by reference or otherwise) in any Transaction Document (other than those specified in clause (b) or (c) of this Section 5) and such default shall continue for ten (10) days after the Company’s receipt of written notice to the Company of such default;

 

(e)           Voluntary Bankruptcy or Insolvency Proceedings. The Company or any Subsidiary shall (i) apply for or consent to the appointment of, or the taking of possession by, a receiver, trustee, liquidator or custodian of itself or of all or a substantial part of its property, (ii) be unable, or admit in writing its inability, to pay its debts generally as they mature, (iii) cease operations of its business as presently conducted, (iv) make a general assignment for the benefit of its creditors, (v) be dissolved or liquidated, (vi) commence a voluntary case or other proceeding seeking liquidation, reorganization or other relief with respect to itself or its debts under any bankruptcy, insolvency or other similar law now or hereafter in effect or consent to any such relief or to the appointment of or taking possession of its property by any official in an involuntary case or other proceeding commenced against it, (vii) be adjudicated bankrupt or insolvent, (viii) file a petition seeking to take advantage of any other law providing for the relief of debtors, or (ix) take any action for the purpose of effecting any of the foregoing;

 

(f)           Involuntary Bankruptcy or Insolvency Proceedings. The commencement of proceedings for the appointment of a receiver, trustee, liquidator or custodian of the Company or any Subsidiary or of all or a substantial part of the property thereof, or an involuntary case or other proceedings seeking liquidation, reorganization or other relief with respect to the Company or any Subsidiary or the debts thereof under any bankruptcy, insolvency or other similar law now or hereafter in effect shall be commenced and an order for relief entered or such proceeding shall not be dismissed or discharged within sixty (60) days of commencement;

 

(g)           Cross-Default. The Company or any Subsidiary shall fail to make any payment (whether of principal or interest and regardless of amount) in respect of any Material Indebtedness, when and as the same shall become due and payable;

 

(h)           Acceleration. Any event or condition occurs that results in any Material Indebtedness becoming due prior to its scheduled maturity or that enables or permits (with or without the giving of notice, the lapse of time or both) the holder or holders of any Material Indebtedness or any trustee or agent on its or their behalf to cause any Material Indebtedness to become due, or to require the prepayment, repurchase, redemption or defeasance thereof, prior to its scheduled maturity;

 

(i)           Judgments. One or more judgments for the payment of money arising after the date of this Note and in an aggregate amount in excess of $25,000 shall be rendered against the Company, any Subsidiary or any combination thereof and the same shall remain undischarged for a period of 10 consecutive days during which execution shall not be effectively stayed, or any action shall be legally taken by a judgment creditor to attach or levy upon any assets of the Company or any Subsidiary to enforce any such judgment;

 

(j)           Invalidity of Loan Documents. Any material provision of any Transaction Document, at any time after its execution and delivery and for any reason other than as expressly permitted hereunder or thereunder or satisfaction in full of all Obligations, ceases to be in full force and effect; or any Obligor or any other Person contests in writing the validity or enforceability of any provision of any Transaction Document; or any Obligor denies in writing that it has any or further liability or obligation under any Transaction Document, or purports in writing to revoke, terminate or rescind any Transaction Document.

 

 

Upon the occurrence of any Event of Default (other than an Event of Default described in Sections 5(e) or 5(f)) and at any time thereafter during the continuance of such Event of Default, Investor may, by written notice to the Company, declare all outstanding Obligations payable by the Company hereunder to be immediately due and payable without presentment, demand, protest or any other notice of any kind, all of which are hereby expressly waived, anything contained herein or in the other Transaction Documents to the contrary notwithstanding. Upon the occurrence of any Event of Default described in Sections 5(e) and 5(f), immediately and without notice, all outstanding Obligations payable by the Company hereunder shall automatically become immediately due and payable, without presentment, demand, protest or any other notice of any kind, all of which are hereby expressly waived, anything contained herein or in the other Transaction Documents to the contrary notwithstanding. In addition to the foregoing remedies, upon the occurrence and during the continuance of any Event of Default, Investor may exercise any other right, power or remedy granted to it by the Transaction Documents or otherwise permitted to it by law, either by suit in equity or by action at law, or both.

 

6.           Representations and Warranties of the Company. The Company represents and warrants to Investor that:

 

(a)           Organization, Good Standing, Corporate Power and Qualification. The Company is a corporation duly organized, validly existing and in good standing under the laws of the State of Delaware and has all requisite power and authority to carry on its business as presently conducted. The Company and each of its Subsidiaries is duly qualified to transact business and is in good standing in each jurisdiction in which the failure to so qualify would have a material adverse effect.

 

(b)           Authority. The execution, delivery and performance by the Company of each Transaction Document to which the Company is party and the consummation of the transactions contemplated by the Transaction Documents (i) are within the power of the Company; and (ii) have been duly authorized by all necessary corporate or other organizational and, if required, stockholder action.

 

(c)           Enforceability. Each Transaction Document to which the Company is party has been duly executed and delivered by the Company and constitutes a legal, valid and binding obligation of the Company, enforceable against the Company in accordance with its terms, except as limited by bankruptcy, insolvency or other laws of general application relating to or affecting the enforcement of creditors’ rights generally and general principles of equity.

 

(d)           Non-Contravention. The execution and delivery by the Company of each Transaction Document to which the Company is party and the performance and consummation of the transactions contemplated thereby do not and will not: (i) violate the Company’s Certificate of Incorporation or bylaws (the “Charter Documents”) or any material judgment, order, writ, decree, statute, rule or regulation applicable to the Company; (ii) violate any provision of, or result in the breach or the acceleration of, or entitle any other person to accelerate (whether after the giving of notice or lapse of time or both), any mortgage, indenture, agreement, instrument or contract to which any Obligor is a party or by which it is bound; or (iii) result in the creation or imposition of any lien upon any property, asset or revenue of any Obligor or the suspension, revocation, impairment, forfeiture, or nonrenewal of any permit, license, authorization or approval applicable to any Obligor, its business or operations, or any of its assets or properties.

 

(e)           Subsidiaries. Each of the Company's Subsidiaries is duly organized, validly existing and in good standing under the laws of its jurisdiction of organization and is in good standing under such laws and has the power and authority to own, lease and operate its properties and carry on its business as now conducted. None of the Company's Subsidiaries owns or leases property or engages in any activity in any jurisdiction that might require its qualification to do business as a foreign corporation in such jurisdiction and in which the failure to qualify as such would have a Material Adverse Effect.

 

 

(f)           Intellectual Property. The Company owns or possesses or can acquire on commercially reasonable terms sufficient legal rights to all Company Intellectual Property in all material respects, without any known conflict with, or infringement of, the rights of others. To the Company’s knowledge, no product or service marketed or sold (or proposed to be marketed or sold) by the Company or any Subsidiary violates or will violate any license or infringes or will infringe any intellectual property rights of any other party. To the Company’s knowledge, it will not be necessary to use any inventions of any of its employees or consultants made prior to their employment by the Company or any Subsidiary. Each employee and consultant has assigned to the Company all intellectual property and proprietary rights he or she owns that are related to the Company’s business as now conducted and as presently proposed to be conducted.

 

(g)           Disclosure. The Company has made available to Investor all of the information reasonably available to the Company that Investor has requested for deciding whether to acquire this Note. No representation or warranty of the Company or any Subsidiary contained in any Transaction Document or in any information provided by the Company or any Subsidiary to Investor contains any untrue statement of a material fact or omits to state a material fact necessary in order to make the statements contained in the Transaction Documents not misleading in light of the circumstances under which they were made. It is understood that this representation is qualified by the fact that the Company has not delivered to Investor, and has not been requested to deliver, a private placement or similar memorandum or any written disclosure of the types of information customarily furnished to purchasers of securities.

 

(h)    Absence of Claims. Other than as disclosed in the SEC Reports, to the Company’s knowledge, there is no claim, action, suit, proceeding, arbitration, complaint, charge or investigation pending or currently threatened (i) against the Company or any Subsidiary or any officer, director or key employee of the Company or any Subsidiary; (ii) that questions the validity of any Transaction Document or the right of the Company to issue this Note and any Securities issued pursuant hereto, or to consummate the transactions contemplated by the Transaction Documents; or (iii) that would reasonably be expected to have, either individually or in the aggregate, a Material Adverse Effect.

 

(i)    Senior Indebtedness. The monetary obligations under this Note rank at least pari passu in right of payment (to the fullest extent permitted by law) with all other senior indebtedness of the Company. In addition, the Obligations rank at least pari passu in right of payment with all other unsecured indebtedness of the Obligors.

 

(j)    Taxes. Each of the Company and its Subsidiaries has timely filed or caused to be filed all tax returns and reports required to have been filed and has paid or caused to be paid all taxes required to have been paid by it, except taxes that are being contested in good faith by appropriate proceedings and for which the Company or such Subsidiary, as applicable, has set aside on its books adequate reserves.

 

(k)    Compliance with Laws. Each of the Company and its Subsidiaries is in compliance with all laws, regulations and orders of any governmental authority applicable to it or its property and all indentures, agreements and other instruments binding upon it or its property, except where the failure to do so, individually or in the aggregate, could not reasonably be expected to result in a Material Adverse Effect.

 

(l)    Approvals. No consent, approval, order or authorization of, or registration, declaration or filing with, any governmental authority or other Person (including, without limitation, the shareholders of any Person) is required in connection with the execution and delivery of the Transaction Documents executed by the Company and the performance and consummation of the transactions contemplated thereby, other than such as have been obtained and remain in full force and effect and other than such qualifications or filings under applicable securities laws as may be required in connection with the transactions contemplated by this Agreement.

 

 

(m)    No Violation or Default. None of the Company or the Company's subsidiaries is in violation of or in default with respect to (i) its Charter Documents or other organizational documents or any material judgment, order, writ, decree, statute, rule or regulation applicable to such Person; or (ii) other than as disclosed in any SEC Reports, any material mortgage, indenture, agreement, instrument or contract to which such Person is a party or by which it is bound (nor is there any waiver in effect which, if not in effect, would result in such a violation or default).

 

(n)    Litigation. Except as set forth in Item 2(n) of the Disclosure Schedule attached hereto, no actions (including, without limitation, derivative actions), suits, proceedings or investigations are pending or, to the knowledge of the Company, threatened in writing against the Company or the Company's subsidiaries at law or in equity in any court or before any other governmental authority that if adversely determined (i) would (alone or in the aggregate) result in a material liability or (ii) seeks to enjoin, either directly or indirectly, the execution, delivery or performance by the Company of the Transaction Documents or the transactions contemplated thereby.

 

(o)           Title. The Company and the Company’s subsidiaries own and have good and marketable title in fee simple absolute to, or a valid leasehold interest in, all their respective real properties and good title to their other respective assets and properties as reflected in the most recent financial statements delivered to Investor (except those assets and properties disposed of in the ordinary course of business since the date of such financial statements) and all respective assets and properties acquired by the Company and its subsidiaries since such date (except those disposed of in the ordinary course of business). Such assets and properties are subject to no Lien other than Permitted Liens.

 

7.           Covenants of the Company. Until all Obligations have been paid in full in cash or fully converted into Securities in accordance with Section 4:

 

(a)           Affirmative Covenants. The Company will, and will cause each of its Subsidiaries to:

 

(i)           Maintenance of Existence. (i) Preserve, renew and maintain in full force and effect its corporate or organizational existence, and (ii) take all reasonable action to maintain all rights and privileges necessary or desirable in the normal conduct of its business.

 

(ii)           Compliance. Comply with (i) all of the terms and provisions of its organizational documents, (ii) its obligations under its material contracts and agreements, and (iii) in all material respects all laws applicable to it and its business.

 

(iii)           Notice of Events of Default. The Company shall, as soon as possible and in any event within three (3) Business Days after it becomes aware that an Event of Default has occurred, notify the Investor in writing of the nature and extent of such Event of Default and the action, if any, it has taken or proposes to take with respect to such Event of Default.

 

(iv)           Payment Obligations. Pay, discharge or otherwise satisfy at or before maturity or before they become delinquent, as the case may be, all its material obligations incurred on or after the date of this Note of whatever nature, except where the amount or validity thereof is currently being contested in good faith by appropriate proceedings, and reserves in conformity with generally accepted accounting principles (GAAP) with respect thereto have been provided on its books.

 

 

(v)           Visitation Rights. Permit any representatives designated by the Investor, upon at least 3 Business Days’ notice, to visit and inspect its properties, to examine and make extracts from its books and records, to discuss its affairs, finances and condition with its officers and independent accountants.

 

(vi)           Financial Statements. The Company will furnish to Investor:

 

(1)

As soon as available, but in any event within 45 days after the end of each fiscal quarter of the Company other than its fourth fiscal quarter (commencing with the fiscal quarter ending September 30, 2024), its condensed consolidated balance sheets and related statements of operations, stockholders’ equity and cash flows as of the end of and for such fiscal quarter and the then elapsed portion of the fiscal year, setting forth in each case in comparative form the figures as of the end of and for the corresponding period or periods of the previous fiscal year, all certified by one of its senior financial officers as presenting fairly in all material respects the financial condition and results of operations of the Company and its consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotes; and

 

(2)

As soon as available, but in any event within 90 days after the end of each fiscal year of the Company (commencing with the fiscal year ending December 31, 2024), its audited consolidated balance sheet and related statements of operations, stockholders’ equity and cash flows as of the end of and for such year, setting forth in each case in comparative form the figures for the previous fiscal year, all reported on by Cherry Bekaert LLP or other independent public accountants of recognized national standing to the effect that such consolidated financial statements present fairly in all material respects the financial condition and results of operations of the Company and its consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently applied.

 

As to any information contained in materials filed with the U.S. Securities and Exchange Commission, the Company shall not be separately required to furnish such information under Sections 7(a)(vi)(1) and 7(a)(vi)(2) above, but the foregoing shall not be in derogation of the obligation of the Company to furnish the information and materials described in Sections 7(a)(vi)(1) and 7(a)(vi)(2) above at the times specified therein.

 

(vii)           Other Information. The Company will furnish to Investor:

 

(1)

promptly following any request therefor, such other information regarding the operations, business affairs and financial condition of the Company or any Subsidiary, or compliance with the terms of any Transaction Document, as the Investor may reasonably request; and

 

(2)

prompt written notice of the occurrence of (A) any Default, (B) any material change in accounting or financial reporting practices by the Company or any Subsidiary, (C) the filing or commencement of any litigation or claim by or before any arbitrator or governmental authority against or affecting the Company or any Subsidiary that could reasonably be expected to result in a Material Adverse Effect, or (D) any development that results in, or could reasonably be expected to result in, a Material Adverse Effect.

 

 

(b)           Negative Covenants. The Company will not, and will not permit its Subsidiaries to:

 

(i)           Fundamental Change. Without the Investor’s prior written consent, (i) suffer, permit, facilitate, or cause a Change of Control (including, but not limited to, by means of a sale of equity in the Company or an exclusive license of the Company Intellectual Property) or entry into any agreement for such a Change of Control, (ii) sell, lease or otherwise dispose of (whether in one transaction or in a series of transactions), or enter into any agreement to sell, lease or otherwise dispose of (whether in one transaction or a series of transactions), all or substantially all of the assets of any Obligor to any other Person, (iii) enter into an exclusive license to the Company’s core intellectual property to any other Person, or (iv) amend, modify or waive its organizational documents.

 

(ii)           Use of Proceeds. Without the prior written consent of Investor, the Company shall not use the proceeds of this Note for any purpose other than (A) for working capital and general corporate purposes of the Company, including accounts payable, and (B) to repay the Existing Indebtedness on the date of this Note.

 

(iii)           Financings. Without the prior written consent of Investor: (i) sell, transfer, or otherwise dispose of, or issue any shares or securities convertible into, exercisable for or exchangeable into shares in, the assets or the business of, any Obligor, other than Permitted Dispositions; (ii) engage in or undertake any joint venture, spin-out, merger or other business combination, reorganization or equity or equity-linked financing; or (iii) enter into any agreement, term sheet, letter of intent or arrangement regarding a transaction described in clause (i) or clause (ii) of this Section 7(b).

 

(iv)           Restricted Payments. Make any Restricted Payment, provided that (i) the Company may convert any of its convertible securities into other equity securities pursuant to the terms of such convertible securities, (ii) the Company may grant awards consisting in the aggregate of up to 20% of the shares of the Company’s common stock issued and outstanding on the date hereof to eligible participants and satisfy its obligations pursuant to awards that are outstanding as of the date of this Note in each case under its 2016 Omnibus Incentive Plan or any successor equity incentive plan approved by its stockholders, (iii) the Company may make cash payments in lieu of issuing fractional membership interests, and (iv) a Subsidiary may declare and pay dividends to its direct parent entity.

 

(v)           Indebtedness. Without the prior written consent of Investor, create, incur, assume, or be liable for any Indebtedness, other than Permitted Indebtedness.

 

(vi)           Liens. Without the prior written consent of Investor, create, incur, allow, or suffer to exist any Lien on any of its property, except for Permitted Liens.

 

(vii)           Investments. Purchase, hold or acquire (including pursuant to any merger with any Person that was not a wholly owned Subsidiary prior to such merger) any capital stock, evidences of indebtedness or other securities (including any option, warrant or other right to acquire any of the foregoing) of, make or permit to exist any loans or advances to, guarantee any obligations of, or make or permit to exist any investment or any other interest in, any other Person, or purchase or otherwise acquire (in one transaction or a series of transactions) any assets of any other Person constituting a business unit, except: (A) Permitted Investments; (B) investments by the Company existing on the date hereof in the capital stock of its Subsidiaries; (C) unsecured intercompany loans or advances made by an Obligor to another Obligor in the ordinary course of business; and (D) guarantees constituting Permitted Indebtedness; and

 

 

(viii)           Affiliate Transactions. Sell, lease or otherwise transfer any property or assets to, or purchase, lease or otherwise acquire any property or assets from, or otherwise engage in any other transactions with, any of its Affiliates, except (A) in the ordinary course of business at prices and on terms and conditions not less favorable to the Company or such Subsidiary than could be obtained on an arm’s-length basis from unrelated third parties, (B) transactions between or among the Company and its wholly owned Subsidiaries not involving any other Affiliate and (C) any Restricted Payment permitted by ‎Section 7(b)(iv).

 

(ix)           Prepayment of Indebtedness. Without Investor’s prior written consent, the Company will not prepay the Sucampo Debt or any other Indebtedness prior to the stated maturity of such Indebtedness.

 

(x)           Immaterial Subsidiaries. Without Investor’s prior written consent, no Immaterial Subsidiary shall cease to be an Immaterial Subsidiary.

 

(c)           Board Observer Rights. So long as either (i) this Note is outstanding or (ii) Investor or its Affiliates collectively hold at least 1% of the issued and outstanding shares of capital stock of the Company, the Investor may appoint one individual as a non-voting observer to the Company’s Board of Directors (the “Observer”), and, in this respect, the Company shall give such representative copies of all notices, minutes, consents, and other materials that it provides to its directors at the same time in the same manner as provided to such directors; provided, however, that (i) such representative shall have entered into a confidentiality agreement, and (ii) the Company reserves the right to withhold any information and to exclude the Observer from any materials or meeting, or any portion thereof, if (as determined by the Company’s Board of Directors in good faith) access to such information or attendance at such meeting could adversely affect the attorney-client or work product privilege between the Company and its counsel or result in disclosure of trade secrets, a conflict of interest, or violation of any material agreement with another person (except Observer shall be deemed an agent or adviser to the Company for any applicable exceptions under such agreements). Notwithstanding the foregoing, the Observer may make any disclosure of such information without being deemed to be in breach of any confidentiality obligations if such disclosure is solely (a) to Investor and its affiliated entities under common control, Investor’s agents and representatives (including, without limitation, attorneys, accountants, and financial advisors), and (b) in the event and to the extent required to do so by a court of competent jurisdiction, by any governmental agency having supervisory authority over the business of the Company, or by any administrative body or legislative body with jurisdiction to order such representative to divulge, disclose or make accessible such information. Such representative shall not have or be deemed to have, or otherwise be subject to, any duties (fiduciary or otherwise) to the Company or its stockholders or any duties (fiduciary or otherwise) otherwise applicable to the directors of the Company.

 

8.           Notice of Event of Default; Default Interest. The Company shall furnish to Investor, promptly upon the occurrence thereof, written notice of the occurrence of any Event of Default hereunder. If an Event of Default has occurred and is continuing, all outstanding Obligations shall bear interest at the rate of Monthly SOFR Rate plus twelve percent (12%) per annum, compounded monthly.

 

9.           Transfer; Successors and Assigns. The terms and conditions of this Note shall inure to the benefit of and be binding upon the respective successors and assigns of the parties. Notwithstanding the foregoing: (a) Investor may not assign, pledge, or otherwise transfer this Note without the prior written consent of the Company, which consent shall not be unreasonably withheld, conditioned or delayed; and (b) the Company may not assign, pledge or otherwise transfer this Note except that a Change of Control shall not be deemed an assignment for purposes of this Section 9. Notwithstanding the foregoing, Investor may transfer this Note, without the requirement of obtaining prior written consent of the Company, to any other entity that is directly or indirectly controlled by Investor. Subject to the foregoing, this Note may be transferred only upon surrender of the original Note for registration of transfer, duly endorsed, or accompanied by a duly executed written instrument of transfer in form satisfactory to the Company. Thereupon, a new note for the same principal amount and interest will be issued to, and registered in the name of, the transferee.

 

 

10.           Governing Law. This Note and all acts and transactions pursuant hereto and the rights and obligations of the parties hereto shall be governed, construed and interpreted in accordance with the laws of the State of Delaware, without giving effect to principles of conflicts of law.

 

11.           Notices. All notices, requests, demands, consents, instructions or other communications required or permitted hereunder shall in writing and faxed, mailed or delivered to each party at the respective addresses of the parties as set forth on the signature page hereto. All such notices and communications will be deemed effectively given the earlier of (i) when received, (ii) when delivered personally, (iii) one (1) business day after being delivered by facsimile (with receipt of appropriate confirmation), (iv) one (1) business day after being deposited with an overnight courier service of recognized standing, or (v) four (4) days after being deposited in the U.S. mail, first class with postage prepaid.

 

12.           Waiver and Amendment. This Note and any provision hereof may be amended, waived or modified only upon the written consent of the Company and Investor.

 

13.           Severability. If any provision of this Note is determined to be invalid, illegal or unenforceable, in whole or in part, the validity, legality and enforceability of any of the remaining provisions or portions of this Note shall not in any way be affected or impaired thereby.

 

14.           Prepayment. The Company shall not have the right to prepay all or any part of the principal balance of this Note unless and until Investor provides its written consent to such prepayment.

 

15.           Replacement. Upon the Company’s receipt of reasonably satisfactory evidence of the loss, theft, destruction or mutilation of this Note and (a) in the case of any such loss theft or destruction, upon delivery of indemnity reasonably satisfactory to the Company in form and amount, or (b) in the case of any such mutilation, upon surrender of this Note for cancellation, the Company, at its expense, shall execute and deliver, in lieu thereof, a new Note.

 

16.           Interest Rate Limitation. Notwithstanding anything herein to the contrary, if at any time the interest rate applicable to this Note, together with all fees, charges and other amounts which are treated as interest on this Note under applicable law (collectively the “Charges”), shall exceed the maximum lawful rate (the “Maximum Rate”) which may be contracted for, charged, taken, received or reserved by the Investor in accordance with applicable law, the rate of interest payable in respect of this Note hereunder, together with all Charges payable in respect thereof, shall be limited to the Maximum Rate and, to the extent lawful, the interest and Charges that would have been payable in respect of this Note but were not payable as a result of the operation of this Section shall be cumulated and the interest and Charges payable to Investor in respect of other periods shall be increased (but not above the Maximum Rate therefor) until such cumulated amount, together with interest thereon at the SOFR Rate to the date of repayment, shall have been received by Investor.

 

17.           No Finder’s Fees. Each party represents that it neither is, nor will be, obligated for any finder’s fee or commission in connection with this transaction. Investor agrees to indemnify and to hold harmless the Company from any liability for any commission or compensation in the nature of a finder’s or broker’s fee arising out of this transaction (and the costs and expenses of defending against such liability or asserted liability) for which Investor is responsible. The Company agrees to indemnify and hold harmless Investor from any liability for any commission or compensation in the nature of a finder’s or broker’s fee arising out of this transaction (and the costs and expenses of defending against such liability or asserted liability) for which the Company is responsible.

 

[SIGNATURE PAGE FOLLOWS]

 

 

IN WITNESS WHEREOF, the undersigned has executed this Convertible Promissory Tranche A Note as of the date first referenced above.

 

	COMPANY
	PANBELA THERAPEUTICS, INC.,
	a Delaware corporation
	By:	/s/ Jennifer K. Simpson
	Name:	Jennifer K. Simpson
	Its:	Chief Executive Officer
	Address:	712 Vista Blvd #305
		Waconia, MN 55387

 

 

                                   

 

AGREED TO AND ACCEPTED:

 

INVESTOR

 

NANT CAPITAL, LLC,

a Delaware limited liability company

 

 

By:	/s/ Charles Kenworthy
Name:	Charles Kenworthy
Its:	Manager

 

Address:

450 Duley Road

El Segundo, California 90245

 

Appendix I

 

NOTICE OF CONVERSION

 

Reference is made to the Convertible Promissory Tranche A Note of Panbela Therapeutics, Inc., a Delaware corporation (the “Company”) dated October 22, 2024, issued to the undersigned (the “Note”). In accordance with and pursuant to the terms of the Note, the undersigned hereby elects to convert the entire outstanding principal amount and accrued interest due and owing under the Note, into common stock equity securities of the Company (“Securities”), by tendering the original of the Note for cancellation.

 

Please confirm the following information:

 

Principal and Accrued Interest Outstanding

Under the Note:

                                             

Conversion Price:

                                             

Number of Securities

to be issued:

                                                      

Please issue Securities into which the Note is being converted in the following name and to the following address:

 

Issue to:

                                                                                                                              

Address:

                                                                                                                                                                                             

Facsimile Number:

                                                               

Authorization:

                                                               

 

By:

Name:

Title (if an entity):

Dated:

                                                                                                                     

Exhibit 10.3

Execution Version

 

CONTINUING GUARANTY

 

FOR VALUE RECEIVED, the sufficiency of which is hereby acknowledged, and in consideration of credit and/or financial accommodation heretofore or hereafter from time to time made or granted to PANBELA THERAPEUTICS, INC. (the “Borrower”) by NANT CAPITAL, LLC and its successors and assigns (collectively the “Lender”), the undersigned Guarantor (whether one or more the “Guarantor”, and if more than one jointly and severally) hereby furnishes its guaranty of the Guaranteed Obligations (as hereinafter defined) as follows:

 

1.    Guaranty. The Guarantor hereby absolutely and unconditionally guarantees, as a guaranty of payment and performance and not merely as a guaranty of collection, prompt payment when due, whether at stated maturity, by required prepayment, upon acceleration, demand or otherwise, and at all times thereafter, of any and all existing and future indebtedness and liabilities of every kind, nature and character, direct or indirect, absolute or contingent, liquidated or unliquidated, voluntary or involuntary and whether for principal, interest, premiums, fees indemnities, damages, costs, expenses or otherwise, of the Borrower to the Lender, arising out of those certain Senior Convertible Promissory Notes (as amended from time to time, the “Notes”) made by the Borrower in favor of the Lender, and sold by the Borrower to the Lender under the Note Purchase Agreement dated as of the date hereof (as amended from time to time, the “NPA”) between the Borrower and Lender, and all other Transaction Documents (hereinafter, as such term is defined in the Notes) (including all renewals, extensions, amendments, refinancings and other modifications thereof and all costs, reasonable attorneys’ fees and expenses incurred by the Lender in connection with the collection or enforcement thereof), and whether recovery upon such indebtedness and liabilities may be or hereafter become unenforceable or shall be an allowed or disallowed claim under any proceeding or case commenced by or against the Guarantor or the Borrower under the Bankruptcy Code (Title 11, United States Code), any successor statute or any other liquidation, conservatorship, bankruptcy, assignment for the benefit of creditors, moratorium, rearrangement, receivership, insolvency, reorganization, or similar debtor relief laws of the United States or other applicable jurisdictions from time to time in effect and affecting the rights of creditors generally (collectively, “Debtor Relief Laws”), and including interest that accrues after the commencement by or against the Borrower of any proceeding under any Debtor Relief Laws (collectively, the “Guaranteed Obligations”). The Lender’s books and records showing the amount of the Guaranteed Obligations shall be admissible in evidence in any action or proceeding, and shall be binding upon the Guarantor and conclusive for the purpose of establishing the amount of the Guaranteed Obligations. This Guaranty shall not be affected by the genuineness, validity, regularity or enforceability of the Guaranteed Obligations or any instrument or agreement evidencing any Guaranteed Obligations, or by the existence, validity, enforceability, perfection, non-perfection or extent of any collateral therefor, or by any fact or circumstance relating to the Guaranteed Obligations which might otherwise constitute a defense to the obligations of the Guarantor under this Guaranty, and the Guarantor hereby irrevocably waives any defenses it may now have or hereafter acquire in any way relating to any or all of the foregoing. Anything contained herein to the contrary notwithstanding, the obligations of the Guarantor hereunder at any time shall be limited to an aggregate amount equal to the largest amount that would not render its obligations hereunder subject to avoidance as a fraudulent transfer or conveyance under Section 548 of the Bankruptcy Code (Title 11, United States Code) or any comparable provisions of any similar federal or state law.

 

2.    No Setoff or Deductions; Taxes; Payments. The Guarantor represents and warrants that it is organized and resident in the United States of America. The Guarantor shall make all payments hereunder without setoff or counterclaim and free and clear of and without deduction for any taxes, levies, imposts, duties, charges, fees, deductions, withholdings, compulsory loans, restrictions or conditions of any nature now or hereafter imposed or levied by any jurisdiction or any political subdivision thereof or taxing or other authority therein unless the Guarantor is compelled by law to make such deduction or withholding. If any such obligation (other than one arising with respect to taxes based on or measured by the income or profits of the Lender) is imposed upon the Guarantor with respect to any amount payable by it hereunder, upon written request by the Lender, the Guarantor will pay to the Lender, on the date on which such amount is due and payable hereunder, such additional amount in U.S. dollars as shall be necessary to enable the Lender to receive the same net amount which the Lender would have received on such due date had no such obligation been imposed upon the Guarantor. The Guarantor will deliver promptly to the Lender certificates or other valid vouchers for all taxes or other charges deducted from or paid with respect to payments made by the Guarantor hereunder. The obligations of the Guarantor under this paragraph shall survive the payment in full of the Guaranteed Obligations and termination of this Guaranty.

 

 

3.    Rights of Lender. The Guarantor consents and agrees that the Lender may, at any time and from time to time, without notice or demand, and without affecting the enforceability or continuing effectiveness hereof: (a) amend, extend, renew, compromise, discharge, accelerate or otherwise change the time for payment or the terms of the Guaranteed Obligations or any part thereof; (b) take, hold, exchange, enforce, waive, release, fail to perfect, sell, or otherwise dispose of any security for the payment of this Guaranty or any Guaranteed Obligations; (c) apply such security and direct the order or manner of sale thereof as the Lender in its sole discretion may determine; and (d) release or substitute one or more of any endorsers or other guarantors of any of the Guaranteed Obligations. Without limiting the generality of the foregoing, the Guarantor consents to the taking of, or failure to take, any action which might in any manner or to any extent vary the risks of the Guarantor under this Guaranty or which, but for this provision, might operate as a discharge of the Guarantor.

 

4.    Certain Waivers. The Guarantor waives (a) any defense arising by reason of any disability or other defense of the Borrower or any other guarantor, or the cessation from any cause whatsoever (including any act or omission of the Lender) of the liability of the Borrower; (b) any defense based on any claim that the Guarantor’s obligations exceed or are more burdensome than those of the Borrower; (c) the benefit of any statute of limitations affecting the Guarantor’s liability hereunder; (d) any right to require the Lender to proceed against the Borrower, proceed against or exhaust any security for the Indebtedness, or pursue any other remedy in the Lender ’s power whatsoever; (e) any benefit of and any right to participate in any security now or hereafter held by the Lender; and (f) to the fullest extent permitted by law, any and all other defenses or benefits that may be derived from or afforded by applicable law limiting the liability of or exonerating guarantors or sureties. The Guarantor expressly waives all setoffs and counterclaims and all presentments, demands for payment or performance, notices of nonpayment or nonperformance, protests, notices of protest, notices of dishonor and all other notices or demands of any kind or nature whatsoever with respect to the Guaranteed Obligations, and all notices of acceptance of this Guaranty or of the existence, creation or incurrence of new or additional Guaranteed Obligations. The Guarantor waives any rights and defenses that are or may become available to the Guarantor by reason of Sections 2787 to 2855, inclusive, 2899 and 3433 of the California Civil Code.

 

5.    Obligations Independent. The obligations of the Guarantor hereunder are those of primary obligor, and not merely as surety, and are independent of the Guaranteed Obligations and the obligations of any other guarantor, and a separate action may be brought against the Guarantor to enforce this Guaranty whether or not the Borrower or any other person or entity is joined as a party.

 

6.    Subrogation. The Guarantor shall not exercise any right of subrogation, contribution, indemnity, reimbursement or similar rights with respect to any payments it makes under this Guaranty until all of the Guaranteed Obligations and any amounts payable under this Guaranty have been indefeasibly paid and performed in full and any commitments of the Lender or facilities provided by the Lender with respect to the Guaranteed Obligations are terminated. If any amounts are paid to the Guarantor in violation of the foregoing limitation, then such amounts shall be held in trust for the benefit of the Lender and shall forthwith be paid to the Lender to reduce the amount of the Guaranteed Obligations, whether matured or unmatured.

 

 

7.    Termination; Reinstatement. This Guaranty is a continuing and irrevocable guaranty of all Guaranteed Obligations now or hereafter existing and shall remain in full force and effect until all Guaranteed Obligations and any other amounts payable under this Guaranty are indefeasibly paid in full in cash and any commitments of the Lender or facilities provided by the Lender with respect to the Guaranteed Obligations are terminated. Notwithstanding the foregoing, this Guaranty shall continue in full force and effect or be revived, as the case may be, if any payment by or on behalf of the Borrower or the Guarantor is made, or the Lender exercises its right of setoff, in respect of the Guaranteed Obligations and such payment or the proceeds of such setoff or any part thereof is subsequently invalidated, declared to be fraudulent or preferential, set aside or required (including pursuant to any settlement entered into by the Lender in its discretion) to be repaid to a trustee, receiver or any other party, in connection with any proceeding under any Debtor Relief Laws or otherwise, all as if such payment had not been made or such setoff had not occurred and whether or not the Lender is in possession of or has released this Guaranty and regardless of any prior revocation, rescission, termination or reduction. The obligations of the Guarantor under this paragraph shall survive termination of this Guaranty.

 

8.    Subordination. The Guarantor hereby subordinates the payment of all obligations and indebtedness of the Borrower owing to the Guarantor, whether now existing or hereafter arising, including but not limited to any obligation of the Borrower to the Guarantor as subrogee of the Lender or resulting from the Guarantor’s performance under this Guaranty, to the indefeasible payment in full in cash of all Guaranteed Obligations. If the Lender so requests, any such obligation or indebtedness of the Borrower to the Guarantor shall be enforced and performance received by the Guarantor as trustee for the Lender and the proceeds thereof shall be paid over to the Lender on account of the Guaranteed Obligations, but without reducing or affecting in any manner the liability of the Guarantor under this Guaranty.

 

9.    Stay of Acceleration. In the event that acceleration of the time for payment of any of the Guaranteed Obligations is stayed, in connection with any case commenced by or against the Guarantor or the Borrower under any Debtor Relief Laws, or otherwise, all such amounts shall nonetheless be payable by the Guarantor immediately upon demand by the Lender.

 

10.    Expenses. The Guarantor shall pay on written demand all out-of-pocket expenses (including reasonable attorneys’ fees and expenses) in any way relating to the enforcement or protection of the Lender’s rights under this Guaranty or in respect of the Guaranteed Obligations, including any incurred during any “workout” or restructuring in respect of the Guaranteed Obligations and any incurred in the preservation, protection or enforcement of any rights of the Lender in any proceeding any Debtor Relief Laws. The obligations of the Guarantor under this paragraph shall survive the payment in full of the Guaranteed Obligations and termination of this Guaranty.

 

11.    Miscellaneous. No provision of this Guaranty may be waived, amended, supplemented or modified, except by a written instrument executed by the Lender and the Guarantor. No failure by the Lender to exercise, and no delay in exercising, any right, remedy or power hereunder shall operate as a waiver thereof; nor shall any single or partial exercise of any right, remedy or power hereunder preclude any other or further exercise thereof or the exercise of any other right, power or remedy. The remedies herein provided are cumulative and not exclusive of any remedies provided by law or in equity. The unenforceability or invalidity of any provision of this Guaranty shall not affect the enforceability or validity of any other provision herein. Unless otherwise agreed by the Lender and the Guarantor in writing, this Guaranty is not intended to supersede or otherwise affect any other guaranty now or hereafter given by the Guarantor for the benefit of the Lender or any term or provision thereof.

 

 

12.    Condition of Borrower. The Guarantor acknowledges and agrees that it has the sole responsibility for, and has adequate means of, obtaining from the Borrower and any other guarantor such information concerning the financial condition, business and operations of the Borrower and any such other guarantor as the Guarantor requires, and that the Lender has no duty, and the Guarantor is not relying on the Lender at any time, to disclose to the Guarantor any information relating to the business, operations or financial condition of the Borrower or any other guarantor (the guarantor waiving any duty on the part of the Lender to disclose such information and any defense relating to the failure to provide the same).

 

13.    Setoff. If and to the extent any payment is not made when due hereunder, the Lender may setoff and charge from time to time any amount so due against any or all of the Guarantor’s accounts or deposits with the Lender.

 

14.    Representations and Warranties. The Guarantor represents and warrants that (a) it is duly organized and in good standing under the laws of the jurisdiction of its organization and has full capacity and right to make and perform this Guaranty, and all necessary authority has been obtained; (b) this Guaranty constitutes its legal, valid and binding obligation enforceable in accordance with its terms; (c) the making and performance of this Guaranty does not and will not violate the provisions of any applicable law, regulation or order, and does not and will not result in the breach of, or constitute a default or require any consent under, any material agreement, instrument, or document to which it is a party or by which it or any of its property may be bound or affected; and (d) all consents, approvals, licenses and authorizations of, and filings and registrations with, any governmental authority required under applicable law and regulations for the making and performance of this Guaranty have been obtained or made and are in full force and effect.

 

15.    Indemnification and Survival. Without limitation on any other obligations of the Guarantor or remedies of the Lender under this Guaranty, the Guarantor shall, to the fullest extent permitted by law, indemnify, defend and save and hold harmless the Lender from and against, and shall pay on demand, any and all damages, losses, liabilities and expenses (including attorneys’ fees and expenses and the allocated cost and disbursements of internal legal counsel) that may be suffered or incurred by the Lender in connection with or as a result of any failure of any Guaranteed Obligations to be the legal, valid and binding obligations of the Borrower enforceable against the Borrower in accordance with their terms. The obligations of the Guarantor under this paragraph shall survive the payment in full of the Guaranteed Obligations and termination of this Guaranty.

 

16.   GOVERNING LAW; Assignment; Jurisdiction; Notices. THIS GUARANTY SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF CALIFORNIA. This Guaranty shall (a) bind the Guarantor and its successors and assigns, provided that the Guarantor may not assign its rights or obligations under this Guaranty without the prior written consent of the Lender (and any attempted assignment without such consent shall be void), and (b) inure to the benefit of the Lender and its successors and assigns and the Lender may, without notice to the Guarantor and without affecting the Guarantor’s obligations hereunder, assign, sell or grant participations in the Guaranteed Obligations and this Guaranty, in whole or in part. The Guarantor hereby irrevocably (i) submits to the non‑exclusive jurisdiction of any United States Federal or State court sitting in Los Angeles, California in any action or proceeding arising out of or relating to this Guaranty, and (ii) waives to the fullest extent permitted by law any defense asserting an inconvenient forum in connection therewith. Service of process by the Lender in connection with such action or proceeding shall be binding on the Guarantor if sent to the Guarantor by registered or certified mail at its address specified below or such other address as from time to time notified by the Guarantor. The Guarantor agrees that the Lender may disclose to any assignee of or participant in, or any prospective assignee of or participant in, any of its rights or obligations of all or part of the Guaranteed Obligations any and all information in the Lender’s possession concerning the Guarantor, this Guaranty and any security for this Guaranty. All notices and other communications to the Guarantor under this Guaranty shall be in writing and shall be delivered by hand or overnight courier service, mailed by certified or registered mail or sent by telecopier to the Guarantor at its address set forth below or at such other address in the United States as may be specified by the Guarantor in a written notice delivered to the Lender at such office as the Lender may designate for such purpose from time to time in a written notice to the Guarantor.

 

 

17.    CHOICE OF VENUE; JURY TRIAL WAIVER. Each of Borrower and Lender hereby submits to the exclusive jurisdiction of the state and Federal courts located in the County of Los Angeles, State of California. GUARANTOR AND LENDER EACH HEREBY WAIVE THEIR RESPECTIVE RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF ANY OF THIS GUARANTY, THE OTHER TRANSACTION DOCUMENTS, OR ANY OF THE TRANSACTIONS CONTEMPLATED HEREIN OR THEREIN, INCLUDING CONTRACT CLAIMS, TORT CLAIMS, BREACH OF DUTY CLAIMS, AND ALL OTHER COMMON LAW OR STATUTORY CLAIMS. EACH PARTY RECOGNIZES AND AGREES THAT THE FOREGOING WAIVER CONSTITUTES A MATERIAL INDUCEMENT FOR IT TO ENTER INTO THIS AGREEMENT. EACH PARTY REPRESENTS AND WARRANTS THAT IT HAS REVIEWED THIS WAIVER WITH ITS LEGAL COUNSEL AND THAT IT KNOWINGLY AND VOLUNTARILY WAIVES ITS JURY TRIAL RIGHTS FOLLOWING CONSULTATION WITH LEGAL COUNSEL.

 

18.    JUDICIAL REFERENCE PROVISION.

 

(a)    In the event the Jury Trial Waiver set forth above is not enforceable, the parties elect to proceed under this Judicial Reference Provision.

 

(b)    With the exception of the items specified in Section 18, below, any controversy, dispute or claim (each, a "Claim") between the parties arising out of or relating to this Agreement or any other Loan Document will be resolved by a reference proceeding in California in accordance with the provisions of Sections 638 et seq. of the California Code of Civil Procedure ("CCP"), or their successor sections, which shall constitute the exclusive remedy for the resolution of any Claim, including whether the Claim is subject to the reference proceeding. Except as otherwise provided in the Transaction Documents, venue for the reference proceeding will be in the state or federal court in the county or district where the real property involved in the action, if any, is located or in the state or federal court in the county or district where venue is otherwise appropriate under applicable law (the "Court").

 

(c)    The matters that shall not be subject to a reference are the following: (i) nonjudicial foreclosure of any security interests in real or personal property, (ii) exercise of self-help remedies (including, without limitation, set-off), (iii) appointment of a receiver and (iv) temporary, provisional or ancillary remedies (including, without limitation, writs of attachment, writs of possession, temporary restraining orders or preliminary injunctions). This reference provision does not limit the right of any party to exercise or oppose any of the rights and remedies described in clauses (i) and (ii) or to seek or oppose from a court of competent jurisdiction any of the items described in clauses (iii) and (iv). The exercise of, or opposition to, any of those items does not waive the right of any party to a reference pursuant to this reference provision as provided herein.

 

(d)    The referee shall be a retired judge or justice selected by mutual written agreement of the parties. If the parties do not agree within ten (10) days of a written request to do so by any party, then, upon request of any party, the referee shall be selected by the Presiding Judge of the Court (or his or her representative). A request for appointment of a referee may be heard on an ex parte or expedited basis, and the parties agree that irreparable harm would result if ex parte relief is not granted. Pursuant to CCP § 170.6, each party shall have one peremptory challenge to the referee selected by the Presiding Judge of the Court (or its representative).

 

 

(e)    The parties agree that time is of the essence in conducting the reference proceedings. Accordingly, the referee shall be requested, subject to change in the time periods specified herein for good cause shown, to (i) set the matter for a status and trial-setting conference within fifteen (15) days after the date of selection of the referee, (ii) if practicable, try all issues of law or fact within one hundred twenty (120) days after the date of the conference and (iii) report a statement of decision within twenty (20) days after the matter has been submitted for decision.

 

(f)    The referee will have power to expand or limit the amount and duration of discovery. The referee may set or extend discovery deadlines or cutoffs for good cause, including a party's failure to provide requested discovery for any reason whatsoever. Unless otherwise ordered based upon good cause shown, no party shall be entitled to "priority" in conducting discovery, depositions may be taken by either party upon seven (7) days written notice, and all other discovery shall be responded to within fifteen (15) days after service. All disputes relating to discovery which cannot be resolved by the parties shall be submitted to the referee whose decision shall be final and binding.

 

(g)    Except as expressly set forth herein, the referee shall determine the manner in which the reference proceeding is conducted including the time and place of hearings, the order of presentation of evidence, and all other questions that arise with respect to the course of the reference proceeding. All proceedings and hearings conducted before the referee, except for trial, shall be conducted without a court reporter, except that when any party so requests, a court reporter will be used at any hearing conducted before the referee, and the referee will be provided a courtesy copy of the transcript. The party making such a request shall have the obligation to arrange for and pay the court reporter. Subject to the referee's power to award costs to the prevailing party, the parties will equally share the cost of the referee and the court reporter at trial.

 

(h)    The referee shall be required to determine all issues in accordance with existing case law and the statutory laws of the State of California. The rules of evidence applicable to proceedings at law in the State of California will be applicable to the reference proceeding. The referee shall be empowered to enter equitable as well as legal relief, enter equitable orders that will be binding on the parties and rule on any motion which would be authorized in a court proceeding, including without limitation motions for summary judgment or summary adjudication. The referee shall issue a decision at the close of the reference proceeding which disposes of all claims of the parties that are the subject of the reference. Pursuant to CCP § 644, such decision shall be entered by the Court as a judgment or an order in the same manner as if the action had been tried by the Court and any such decision will be final, binding and conclusive. The parties reserve the right to appeal from the final judgment or order or from any appealable decision or order entered by the referee. The parties reserve the right to findings of fact, conclusions of laws, a written statement of decision, and the right to move for a new trial or a different judgment, which new trial, if granted, is also to be a reference proceeding under this provision.

 

(i)    If the enabling legislation which provides for appointment of a referee is repealed (and no successor statute is enacted), any dispute between the parties that would otherwise be determined by reference procedure will be resolved and determined by arbitration. The arbitration will be conducted by a retired judge or justice, in accordance with the California Arbitration Act §1280 through §1294.2 of the CCP as amended from time to time. The limitations with respect to discovery set forth above shall apply to any such arbitration proceeding.

 

(j)    THE PARTIES RECOGNIZE AND AGREE THAT ALL CONTROVERSIES, DISPUTES AND CLAIMS RESOLVED UNDER THIS REFERENCE PROVISION WILL BE DECIDED BY A REFEREE AND NOT BY A JURY. AFTER CONSULTING (OR HAVING HAD THE OPPORTUNITY TO CONSULT) WITH COUNSEL OF ITS OWN CHOICE, EACH PARTY KNOWINGLY AND VOLUNTARILY, AND FOR THE MUTUAL BENEFIT OF ALL PARTIES, AGREES THAT THIS REFERENCE PROVISION WILL APPLY TO ANY CONTROVERSY, DISPUTE OR CLAIM BETWEEN OR AMONG THEM ARISING OUT OF OR IN ANY WAY RELATED TO, THE TRANSACTION DOCUMENTS.

 

 

19.    FINAL AGREEMENT. THIS GUARANTY REPRESENTS THE FINAL AGREEMENT BETWEEN THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS BETWEEN THE PARTIES. THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES.

 

Executed this 22nd day of October, 2024.

 

 

CANCER PREVENTION PHARMACEUTICALS, INC.   By: /s/ Jennifer K. Simpson Name:         Jennifer K. Simpson             Title:          Chief Executive officer              Address:          12 Vista Blvd #305                   Waconia, MN 55387                           PANBELA RESEARCH, INC.   By: /s/ Jennifer K. Simpson Name:         Jennifer K. Simpson             Title:          Chief Executive officer              Address:          12 Vista Blvd #305                   Waconia, MN 55387

 

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