THIS ADVANCE is made on 8 March 2022 and effective as of 8 March 2022 BETWEEN AND each a “Party” and together the “Parties” to this Advance. RECITALS THE PARTIES HEREBY agree as follows:
Exhibit 10.28
THIS ADVANCE is made on 8 March 2022 and effective as of 8 March 2022
BETWEEN
| (1) | Aztiq Pharma Partners S.à ▇.▇., a société à responsabilité limitée incorporated and existing under the laws of the Grand Duchy of Luxembourg, registered with the Luxembourg Trade and Companies Register under number B147728, having its registered office at ▇, ▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇-▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇, Grand Duchy of Luxembourg, (the “Lender”); |
AND
| (2) | Alvotech Holdings S.A., a société anonyme incorporated and existing under the laws of the Grand Duchy of Luxembourg, registered with the Luxembourg trade and Companies Register under number B229193, having its registered office at ▇ ▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇, ▇-▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, Grand Duchy of Luxembourg, (the “Borrower”); |
each a “Party” and together the “Parties” to this Advance.
RECITALS
| (A) | The Lender made an interest free advance to the Borrower of an amount of up to USD 25,000,000 on the following terms (the “Advance”): |
| (B) | The Parties now wish to document the terms of such Advance. |
THE PARTIES HEREBY agree as follows:
| 1. | CONSTRUCTION |
| 1.1 | Definitions |
When used in this Advance, the following terms have the following meanings:
“Borrower” has the meaning set out in the above parties section.
“BCA” means the business combination agreement dated 7 December 2021, entered into, inter alios, by the Borrower and Oaktree Acquisition Corp. II, a Cayman Island exempt company, registered with the Cayman Islands Companies Register under number 364940.
“Business Day” means any day on which banks are open for general business in Luxembourg.
“Lender” has the meaning set out in the above parties section.
“Party” and “Parties” have the meaning set out in the above parties section.
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“Repayment Date” means (i) the date falling 30 Business Days after the Second Merger Effective Time under and as defined in the BCA or (ii) in the event that the Second Merger Effective Time (under and as defined in the BCA) does not occur, on the second anniversary of the date on which the Advance was made available to the Borrower.
“Second Merger Effective Time” has the meaning given to that terms in the BCA.
“TopCo” means Alvotech S.A.S., a simplified joint stock company (société par actions simplifiée) incorporated and existing under the laws of the Grand Duchy of Luxembourg, having its registered office at ▇, ▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇, ▇-▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, Grand Duchy of Luxembourg and registered with the Luxembourg Trade and Company Register (Registre de Commerce et des Sociétés, Luxembourg) under number B258884.
| 1.2 | Interpretation |
In this Advance:
| (a) | any reference to any agreement is to be construed as a reference to such agreement as it may be amended, supplemented, modified or extended from time to time, whether before or after the date hereof; |
| (b) | a reference to a person or persons is, where relevant, deemed to be a reference to or to include their respective successors, permitted assignees or transferees, as appropriate; |
| (c) | reference to clauses are references to, respectively, clauses of this Advance and reference to this Advance includes its annexes; |
| (d) | a reference to a law or regulation or any provisions thereof is to be construed as a reference to such law, regulation or provisions as the same may have been, or may from time to time hereafter be, amended or re-enacted; and |
| (e) | words denoting the singular include the plural and vice versa; |
| (f) | words denoting a gender also include the other gender; |
| (g) | words denoting persons include bodies corporate, partnerships, associations and any other organised groups of persons or entities whether incorporated or not. |
| 1.3 | Clause headings |
Clause headings are for ease of reference only and shall not affect interpretation.
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| 2. | THE ADVANCE |
| 2.1 | Advance |
Subject to the terms and conditions hereinafter set forth, the Lender agrees to make available to the Borrower as of the date hereof, an advance (the “Advance”) of up to a maximum amount of twenty-five million U.S. Dollar (USD 25,000,000), on the terms set out in this Agreement. The Borrower may utilise the Advance by making no more than two requests, substantially in the form set out in the Annex 1, to the Lender (each a “Drawdown Request”) or without any Drawdown Request as mutually agreed by the Parties. Save as otherwise agreed between the Parties, the Lender shall make available an advance to the Borrower within two (2) Business Days upon receiving a Drawdown Request.
| 2.2 | Interest |
The Advance shall bear no interest.
| 2.3 | Repayment |
Subject to the terms hereof, the Borrower shall repay the Advance to the Lender in cash and in full on the Repayment Date.
| 3. | MERGER |
| 3.1 | It is acknowledged by the Parties that at the Second Merger Effective Time, the Borrower will merge with and into TopCo, with TopCo as the surviving company (as universal successor) in the merger and shall succeed to and assume all the rights and obligations of the Borrower (including rights and obligations hereunder), as details of which are set out in the BCA. |
| 3.2 | Unless the context otherwise requires, where there is a reference in this Agreement to the Borrower, on and after the Second Merger Effective Time, it shall be deemed to include a reference to the TopCo. |
| 4. | REPRESENTATIONS |
| 4.1 | The Lender (i) is a validly organised and existing company under the laws of the Grand-Duchy of Luxembourg, (ii) has not ceased making, or is not unable to make, payments when they fall due (en état de cessation des paiements) and is not subject to any Insolvency Proceeding and (iii) has the corporate power and authority to enter into this Agreement and to carry out its obligations hereunder. |
| 3.1 | The Borrower (i) is a validly organised and existing company under the laws of the Grand-Duchy of Luxembourg, (ii) has not ceased making, or is not unable to make, payments when they fall due (en état de cessation des paiements) and is not subject to any Insolvency Proceeding and (iii) has the corporate power and authority to enter into this Agreement and to carry out its obligations hereunder. |
| 5. | NO WAIVER |
No failure or delay of a Party to exercise any right or remedy under this Advance shall be considered, or operate as, a waiver thereof, nor shall any single or partial exercise of any right or remedy preclude any other or further exercise thereof or the exercise of any other right or remedy.
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| 6. | AMENDMENTS |
This Advance may only be amended or supplemented by a written agreement signed by all of the Parties.
| 7. | ASSIGNMENT |
The Lender may assign and/or pledge any of its rights under this Advance without the consent of the Borrower. The Lender shall notify any such assignment to the Borrower. The Borrower may assign any of its rights under this Advance with the prior written consent of the Lender only.
| 8. | NOTICES |
All notices and other communications under this Advance shall be in writing and shall be deemed to have been duly given (i) on the date of delivery if delivered personally to the Party to whom notice is to be given, or (ii) on the first Business Day after delivery to an international courier service, if properly addressed and all costs prepaid, to the Parties as follows:
| For the Lender: | Aztiq Pharma Partners S.à ▇.▇. ▇, ▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇-▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇ Grand Duchy of Luxembourg | |||
| For the Borrower: | Alvotech Holdings S.A. ▇, ▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇, ▇-▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇ Grand Duchy of Luxembourg | |||
Either Party may change its address for the purpose of this clause by giving the other Party written notice of its new address.
| 9. | SEVERABILITY |
If one or more of the provisions of this Advance is or becomes invalid, illegal or unenforceable in any respect under any applicable law, the validity, legality and enforceability of the remaining provisions contained herein shall not in any way be affected and any invalid provision shall be deemed to be severable. Each of the Parties agrees in such case to use its best efforts to negotiate in good faith a legally valid and economically equivalent replacement provision.
| 10. | COSTS |
Each Party shall bear its own costs, fees and expenses incurred in connection with the preparation, negotiation, execution and performance of this Advance.
| 11. | COUNTERPARTS |
this Advance may be executed in any number of counterparts and by the Parties on separate counterparts, all of which shall together constitute one instrument.
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| 12. | GOVERNING LAW AND JURISDICTION |
This Advance shall be governed by and construed in accordance with the laws of the Grand Duchy of Luxembourg. The Parties irrevocably agree that any disputes arising out of or in connection with this Advance shall be submitted exclusively to the courts of the City of Luxembourg, Grand Duchy of Luxembourg.
The Parties have executed this Advance in counterparts, each Party acknowledging receipt of one copy on the date first above written.
[Remainder of page remains intentionally blank and signature page follows]
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[Signature page - Advance]
| THE LENDER | ||
| Aztiq Pharma Partners S.à ▇.▇. | ||
| /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ | /s/ ▇▇▇▇▇ Major | |
| By: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ | By: ▇▇▇▇▇ Major | |
| Title: Manager and authorized signatory | Title: Manager and authorized signatory | |
| THE BORROWER | ||
| Alvotech Holdings S.A. | ||
| /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ | /s/ Faysal Kalmoua | |
| By: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ | By: Faysal Kalmoua | |
| Title: Director and authorized signatory | Title: Director and authorized signatory | |
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ANNEX 1
FORM OF DRAWDOWN REQUEST
From: Alvotech Holdings S.A., a société anonyme incorporated and existing under the laws of the Grand Duchy of Luxembourg, registered with the Luxembourg trade and Companies Register under number B229193, having its registered office at ▇ ▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇, ▇-▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, Grand Duchy of Luxembourg (the “Borrower”),
To: Aztiq Pharma Partners S.à ▇.▇., a société à responsabilité limitée incorporated and existing under the laws of the Grand Duchy of Luxembourg, registered with the Luxembourg Trade and Companies Register under number B147728, having its registered office at ▇, ▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇-▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇, Grand Duchy of Luxembourg (the “Lender”).
Dated: [date]
Dear Sirs,
Interest-Free Advance Agreement dated [***] made between us as Borrower and you as Lender
Reference is made to the interest-free advance agreement dated [DATE] and made by and between the Borrower and the Lender, whereby the Lender has agreed to make available to the Borrower an advance of up to a maximum aggregate amount of twenty-five million U.S. Dollar (USD 25,000,000) (the “Agreement”).
In accordance with Clause 2.1 of the Agreement, we hereby send you a Drawdown Request to confirm that we wish to draw the amount of [***] with effect as of [***].
We request you to credit the amount of [***] to the bank account with IBAN [***].
Capitalised terms not defined in this Drawdown Request have the meaning ascribed to such terms in the Agreement.
This Drawdown Request shall be governed by and construed in accordance with the laws of the Grand Duchy of Luxembourg. The Parties irrevocably agree that any disputes arising out of or in connection with this Drawdown Request shall be submitted exclusively to the courts of the city of Luxembourg, Grand Duchy of Luxembourg.
THE BORROWER
Alvotech Holdings S.A.
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THE LENDER
Aztiq Pharma Partners S.à ▇.▇.
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