CERTAIN INFORMATION HAS BEEN REDACTED FROm THIS EXHIBIt IN ACCORDANCE WITH ITEm 601(B)(10)(IV) OF REGULATION S-k BECAUSE SUCH INFORMATION (1) IS NOt MATERIAL AND (2) IS THE TYPE OF INFORMATION THE REGISTRANt TREATS AS PRIVATE OR CONFIDENTIAL. INFORMATION THAt HAS BEEN SO REDACTED FROm THIS EXHIBIt IS MARKED AS FOLLOWS: “XXXXXXXXXX” TO INDICATE THE OMISSION.
This Settlement Agreement and Release dated July 13, 2024 (「Settlement」 or 「Agreement」) is made and entered into by and among the following parties and by and through their respective counsel: (i) Altor BioScience, LLC (「Altor」), (ii) NantCell, Inc. (「NantCell」 and, together with Altor, 「Claimants」), (iii) HCW Biologics, Inc. (「HCW」), and (iv) Dr. Hing C. Wong (「Dr. Wong」 and, together with HCW, 「Respondents,」 and Respondents, together with Claimants, the 「Settling Parties」). The parties to this Agreement are referred to herein collectively as the 「Parties」 and each a 「Party.」 The Settlement is intended by the Settling Parties to fully, finally, and forever resolve, discharge, and settle the Settled Claims subject to the terms and conditions hereof.
I.
BRIEF OVERVIEW OF THE CLAIMS
A.
On December 23, 2022, Dr. Wong filed a statement of claims against Claimants in JAMS Arbitration for declaratory relief, seeking a declaration that Dr. Wong was not liable to Claimants for breach of contract and other causes of action.[1]
B.
Also on December 23, 2022, Claimants filed suit against HCW in the District Court for the Southern District of Florida for misappropriation of trade secrets and other causes of action.[2]
C.
On January 9, 2023, Claimants filed a demand for arbitration against Dr. Wong in JAMS Arbitration for breach of contract and other causes of action.[3]
D.
On May 1, 2023, Claimants filed a demand for arbitration against HCW for misappropriation of trade secrets and other causes of action.[4]
E.
Ultimately, the federal action was dismissed in favor of the three arbitrations, which were consolidated into one action, referred to as JAMS Reference No. XXXXXXXXXX.
F.
On April 1, 2024, Claimants filed an action against HCW in the Court of Chancery of the State of Delaware.[5]
II.
CLAIMS OF CLAIMANTS AND BENEFITS OF SETTLEMENT; RESPONDENTS DENIAL OF WRONGDOING AND LIABILITY
The Settling Parties wish to settle the Actions solely as between the Claimants, on the one hand, and Respondents, on the other hand, by entering into this Settlement, solely to avoid the costs, disruption, and distraction of further litigation, and without admitting the validity of any allegations made in the Actions, or any liability with respect thereto, have concluded that it is desirable that the claims against them be settled and dismissed on the terms reflected in this Settlement. Further, entry into this Settlement by Claimants is not an admission as to the lack of merit of any of the claims asserted by any of them in the Actions, and entry into this Settlement by Respondents is not an admission as to the merit of any of the claims asserted against them in the Actions.
XXX. XX. XXXX XXXXXX XX XXXXXX XXXX XXX XXX XXXXXXXX XXXXX, XXX XXX XX XXXXXXXXXXX XX XXXXXX XX XXX XXX, XX XXXXX XXXXXXX XX XXX XXXXXX XXXXXXX XX XXXXX XXX XX XXXX XXXXXXXXX XXXXX XXXX XXXXXXXX XXXXXXXX XX XXX XX XXXXX XXXXXXX XXXXX, XXXXXXXXX. XX. XXXX XXXX XXXXXX XXX XXXXX XX XXXXXXXXXXX XXX XXXX XX XXXXXXXX - XX XXX - XXXXXXXX XX XXX XXX XXX XXXXXX XXXXX XXXXXXXXXXXX.
9. Forensic and Other Remediation of Certain Information and Data Repositories.
a.
WithinXXXXXX XXXX XXXXXXXX XXXX XX XXX XXXXXXXXX XXXX, each Respondent (持受益所有權是根據SEC規則確定的。該信息並不一定表明任何其他目的的所有權。按照這些規則，在2023年5月12日後60天內（即通過任何期權或認股權的行使獲得的股票），被認爲是持有受益權並對計算該持有人擁有的股數和受益的股數所生效。, HCW and Dr. Wong) and each HCW employee who previously worked for Altor or NantCell and is still employed by or acting as a consultant for HCW shall affirm, by signing a declaration under oath in the form attached to this Agreement as 附件E, stating that: (1) they do not possess, are not using, and will not use any confidential and/or proprietary information of Claimants (“Claimants’ Confidential Materials”), including but not limited to (i) emails (and/or attachments) sent to or from their Altor or NantCell email addresses during their time at Altor or NantCell and (ii) documents stored on Altor’s private corporate servers and copies thereof; (2) they have conducted a reasonably diligent search of all Information Sources in their possession, have destroyed any Claimants’ Confidential Materials in their possession (other than HCW backups or archives that are not ordinarily accessible and which Dr. Wong agrees not to access and HCW agrees not to permit its employees to access), and have concluded that they no longer possess or have access to any Claimants’ Confidential Materials; (3) they understand they have an ongoing obligation to promptly destroy any Claimants’ Confidential Materials without using or disclosing such materials, if they later discover any such materials in their possession; and (4) they have not provided and will not provide any Claimants’ Confidential Materials to any third party. Each of Respondents and each HCW employee who previously worked for Altor or NantCell and is still employed by or acting as a consultant for HCW shall return such signed declaration to Claimants within thirty (30) calendar days after the Effective Date.
根據XX年XX月XX日，XX的XX，XX的XX現在的議席XXX，XX，XXXX年XX月XX日，XXXX，XXXXX的XXXXXX的XX將會在XXXX的XXX內支付各自的費用，包括JAMS開具的仲裁員費用。ImmunityBio同意撤銷其對HCW提出的在特拉華州商務法庭提出的資金提供訴訟的未決權利，題爲「XX生物技術股份有限公司對HCW生物製品公司股份有限公司」。 Altor Bioscience有限責任公司，等人訴HCW生物製品公司。 案件編號2024-0310-PAF, 並且駁回該訴訟。除本第11段另有規定外，各方就訴訟及本協議的相關費用、成本和費用，包括律師、專家、顧問、代理人或代表的費用，將由各方自行承擔。
Each of the patents and trademarks included in the Transferred Intellectual Property Rights is valid, enforceable and subsisting and has not lapsed, expired, been cancelled or become abandoned and all applicable fees have been paid on or before the due date for payment;
d.
附件1 attached hereto is complete, true and accurate and contains all patents and patent applications Controlled by the Respondents, whether published or unpublished, that are related to the TGFb Molecules or necessary or reasonably useful for the research, Development, Commercialization, use, sale or Exploitation of the TGFb Molecules;
e.
To the Knowledge of the Respondents, except for the Transferred Intellectual Property Rights, no other rights or licenses (including other Intellectual Property Rights) are necessary to use, Develop, manufacture, import Commercialize or Exploit the TGFb Molecules;
f.
To the Knowledge of the Respondents, except for the Transferred Intellectual Property Rights, no other rights or licenses (including other Intellectual Property Rights) are necessary to use, Develop, manufacture, import, Commercialize or Exploit HCW9201 for use as a subcutaneous injection;
g.
The materials, inventory, documentation and other technology transferred to ImmunityBio as set forth in Schedule 2(a)(iii), and pursuant to Paragraphs 2(a)(iii), 3 and 4, contain all that are needed to manufacture the TGFb Molecules and HCW9101 on a level consistent with Respondents and/or its Third Party contract manufacturers, including without limitation EirGenix, as of the Effective Date, and Respondents are not withholding anything necessary or reasonably useful for the manufacturing of the TGFb Molecules and HCW9101.
16. 仲裁和特拉華法律行動的解除。 Upon execution of this Agreement by all Parties, the Parties will inform the Arbitrator in the pending JAMS arbitration (Altor BioScience, LLC, et al. vs. Hing C. Wong, et al. - JAMS Ref No. XXXXXXXXXX (the 「Arbitration」)) that the Arbitration has settled, and ask the Arbitrator to refrain from further work pending dismissal. Claimants and Respondents will cooperate to arrange for prompt dismissal of (i) the Arbitration; and (ii) the pending action in the Delaware Court of Chancery, Altor Bioscience, LLC v. HCW Biologics, Inc., C.A. No. 2024-0310-PAF, after Respondents’ compliance with Paragraphs 2 through 9 above. To that end, counsel for the Parties shall work together to submit stipulations of dismissal in the Arbitration and the pending action in the Delaware Court of Chancery no earlier than XXXXXX XXX XXXX XXXXX XXX XXXXXXXXX XXXX, but as soon as practicable thereafter.
17. No Assignment. The Parties represent that they have not assigned or transferred, or purported to assign or transfer, to any person or entity any claim released in this Agreement.
27. Binding Effect. This Agreement shall be binding upon and inure to the benefit of the Parties and their respective heirs, executors, administrators, successors, and assigns, and upon any corporation or other entity with which any Party hereto may merge or consolidate. The releases in Paragraphs 13 through 15 of this Agreement shall inure to the benefit of, and be enforceable by, the respective released persons described therein.
28. Severability. If any provision in this Agreement is held by a court of competent jurisdiction to be invalid, void, or unenforceable, the remaining provisions shall nevertheless continue in full force and continue to be binding on the Parties without being impaired or invalidated in any way.
29. Notice/Cure/Settlement Conference. Before raising any potential breaches of this Settlement with any court, the Parties will meet and confer within XXXX XXX XXXXXXXX XXXX of notice of the breach to negotiate a resolution. Notice pursuant to this requirement shall be in writing and shall be deemed duly given: (i) upon actual receipt; (ii) XXXX XXX XXXXXXXX XXXX after mailing by first class, certified, or registered U.S. mail, postage prepared and addressed as indicated in Paragraph 26, return receipt requested; (iii) if given by email, once such notice or other communication is transmitted to the email address(es) specified in this Settlement, or (iv) if sent through a nationally-recognized overnight delivery service that guarantees next day delivery and addressed as indicated in this Settlement, the business day following its delivery to such service in time for next day delivery. The Party alleged to be in breach shall have XXXXX XXX XXXXXXXX XXXX in which to cure the breach. If no resolution can be negotiated or if the breach is not cured withinXXXXX XXX XXXXXXXX XXXX, or cannot be cured, the non-breaching Party may file an action seeking to enforce this Settlement.
30. Enforcement. Nothing herein shall be construed to limit or prejudice in any way any Party’s rights to seek enforcement of the terms of this Agreement against the breaching Party, including specifically, rights to sue for breach of contract and for specific performance and/or to seek appropriate legal and/or equitable relief to enforce this Agreement. The Parties agree that any Party found to have breached this Agreement shall reimburse the non-breaching Party for the actual and reasonable attorneys’ fees, costs, and expenses that the non-breaching Party incurs in connection with the enforcement of this Agreement or any claim, damages, or litigation relating to any breach of this Agreement.
IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed and delivered as of the 13樓2024年7月1日。
