Is an IOU ok nuance? - One such License Agreement was entered into by Antibe in February 2021 with a company called Nuance Pharma Limited ("Nuance) for the territory of the Greater China Region (the "Nuance License Agreement");
- The Nuance License Agreement included a non-refundable and non-creditable upfront payment of USD$20 million, which Nuance paid to Antibe at the time of the Nuance License Agreement;
(1)
In January of 2022, Nuance commenced an arbitration against Antibe (the
"Arbitration", alleging, among other things, that Antibe had improperly failed to include certain documents (the "Health Canada Correspondence") in its data room, thereby inducing Nuance to enter into the Nuance License Agreement;
(i)
Antibe defended Nuance's claim on the basis that the clinical results that had formed the basis for the Health Canada Correspondence had been included in the data room, rendering the Health Canada Correspondence irrelevant to Nuance's investment decision, and that Nuance had inadequately performed its due diligence;
(k) Pursuant to the terms of the Nuance License Agreement, the hearing of the Arbitration took place in May, 2023, in Singapore;
(1)
On March 1, 2024, Antibe received the arbitral tribunal's award (the
"Award");
Fleton cal is Copolya par you scenire do us: 2024
Court File No./N° du dossier du greffe : CV-24-00718083-00CL
(m) Contrary to Antibe's expectation, the Award found in favour of Nuance, ordered that the Nuance License Agreement was rescinded, and ordered that Antibe repay Nuance the USD$20 million upfront payment, plus Nuance's costs and interest. In total, the Nuance Arbitration Award ordered Antibe to pay Nuance approximately CAD$33 million;
(n)
Antibe has engaged in discussions with Nuance in an attempt to agree on terms for the payment of the Award, including Antibe putting forth a good faith proposal to pay Nuance back in full;
(0)
Nuance did not respond to Antibe's proposal but, on March 28, 2024, Nuance served Antibe with an application for enforcement of the Award in Ontario (the "Enforcement Application";
(P) Antibe is unable to pay the Award, at this time in full, having regard to its other liabilities and contingent liabilities;
(9)
If pursued and completed at this time, the Enforcement Application would lead to a shut down of Antibe's business and efforts to develop the Drug.
Further, the Enforcement Application appears to effectively request a liquidation of Antibe, which would not be value maximizing;
(r)
The Drug has societal value, and there is a reasonable prospect that allowing Antibe to continue to engage in respect of the next phase of the Drug's development will maximize value for Antibe's creditors, including Nuance, and significant benefit social stakeholders;