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Sorrento Therapeutics, Inc. – Court Approves Judge Isgur-Driven Mediation Settlement With “Nant Parties”; Settlement Toggle Has Debtors Either Paying Nant Parties Almost $200mn or “Walking Away” from Ownership Interests in Nant Related Ventures

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August 14, 2023 – The Court hearing the Sorrento Therapeutics, Inc. issued an order approving a settlement reached with Nant Parties* arrived at after mediation conducted by Judge Marvin Isgur [Docket No. 1205].

*Immunotherapy NANTibody, LLC (“NANTibody”), NantCell, Inc. (“NantCell”), NantPharma, LLC (“NantPharma”), and their respective Related Parties (collectively, the “Nant Parties”).

As described in detail below, the settlement memorializes an agreed "toggle framework" further to which the Debtors have until August 31st to make almost $200.0mn in payments to the Nant Parties or be obligated to "convey all of their ownership in NANTibody, NantCancerStemCell, LLC, and NantBio, Inc. to those respective entities."

Will the Debtors be able to come up with that cash in time?

On August 7th, after an expected $200.0mn sale of their Scilex equity to Hundred Gain International Holding Ltd. stumbled in advance of an expected August 4th closing date, the Debtors quickly pivoted to Oramed Pharmaceuticals, Inc. (“Oramed*,” the “Replacement DIP Lender,” and the “Stalking Horse Buyer”) for $100.0mn replacement DIP financing to pay off a defaulted DIP facility extended by previous DIP lender JMB Capital Partners Lending, LLC. Oramed is now set to credit bid that $100.0mn at an auction scheduled for August 14th.

Settlement Overview

The Debtors' requesting motion [Docket no. 810] provides an efficient overview of the stand-off with the Nant Parties that have been central to the Debtors' cases: "…Debtor Sorrento Therapeutics, Inc. ('Sorrento') has been involved in various litigation matters (as both plaintiff and defendant) with certain of the Nant Parties (the 'Nant Litigation'). As a result of such litigation and two resulting judgments, the Debtors owe NantCell and NANTibody approximately $175 million collectively—the largest claims in these chapter 11 cases. Meanwhile, NantPharma owes the Debtors approximately $125 million, which the Debtors have been (unsuccessfully) trying to collect. And the Debtors assert that they have affirmative alter ego, derivative, and fraud claims either pending or to be brought shortly against various Nant Parties in other causes of action, and the Nant Parties dispute all such claims and causes of action.

On March 16, 2023, the Court entered an order appointing Judge Isgur to mediate issues related to the Nant Litigation and these chapter 11 cases generally [Docket No. 234]. On May 10, 2023, the Debtors and the Nant Parties (along with the DIP Lender, the Unsecured Creditors’ Committee, and the Equity Committee) participated in full-day mediation with Judge Isgur. The Debtors and the Nant Parties did not reach a resolution that day but did generally agree on a settlement framework, which they continued negotiating under the facilitation of Judge Isgur. After weeks of arm’s-length, hard-fought, good-faith negotiations, the Debtors and the Nant Parties ultimately agreed to the terms of the Settlement…"

The motion continues as to the parameters of the Settlement: "Debtors’ Settlement with the Nant Parties—Payment or Mutual Releases. The Settlement has a toggle framework whereby the Debtors can either (i) raise sufficient funds to irrevocably pay the more than $175 million [the settlement payment now close to $200.0mn all in] owed to NantCell and NANTibody (on account of their two respective judgments) (the “Nant Payments”) or (ii) elect to not make such payments and “walk away” with a full “divorce” from the Nant Parties….In the payment scenario, referred to in paragraph 9(i) above, the Debtors have agreed with the DIP Lender, the Unsecured Creditors’ Committee, and the Equity Committee that they will not make the Nant Payments unless they have secured committed financing (without material contingencies) to pay each of (i) the DIP Facility, and (ii) unless otherwise agreed in advance in writing by the Unsecured Creditors’ Committee, all allowed general unsecured claims in full in cash on the effective date of a chapter 11 plan of reorganization (a “Plan”).

In the walk-away scenario…(i) the Debtors and the Nant Parties (including their respective Related Parties) will mutually release their pending litigation matters and all other claims and judgments against each other, including the approximately $175 million owed to NantCell and NANTibody; (ii) the Debtors will convey all of their ownership in NANTibody, NantCancerStemCell, LLC, and NantBio, Inc. to those respective entities (and Sorrento’s membership, directorship, and any other rights in those entities, as applicable, will be canceled); (iii) NantBio will pay the Debtors $1.5 million; and (iv) NantCell and the Nant Parties will obtain a full release of the Debtors’ royalty rights with respect to the PD-L1 antibody that is the subject of the April 21, 2015 Exclusive License Agreement between NantCell and Sorrento. In short, the walk-away would be a full divorce of all relationships between the Debtors and the Nant Parties (and their respective Related Parties), so that both sides can continue operating without needing to interact with each other, thereby minimizing the prospect of future litigation.

This toggle framework will allow the Debtors to preserve optionality in the near term and determine the most value-maximizing path forward, as they continue their ongoing sale and financing marketing process. The implementation of the Settlement with the Nant Parties (i) will be effectuated through the Plan if the Plan is effective on or prior to July 14, 2023, or (ii) if the Plan is not effective on or prior to July 14, 2023, will be effectuated prior to and separate from the Plan pursuant to the Order.

The mediation settlement order provides, “The implementation of the Settlement with NANTibody, NantCell, and NantPharma and their Related Parties (i) will be effectuated through the Debtors’ chapter 11 plan of reorganization (the “Plan”) if the Plan is effective on or prior to August 31, 2023, or (ii) if the Plan is not effective on or prior to August 31, 2023, will be effectuated prior to and separate from the Plan pursuant to this Order. Upon the entry of this Order, the Nant Parties agree to support and vote to accept the Plan (and will take no actions that could interfere with or delay confirmation of the Plan or that support any competing plan), provided that the Plan contains (1) the terms of the Settlement and all of the terms and conditions contained in this Order, (2) no terms and conditions inconsistent with the Settlement or any terms and conditions contained in this Order, and (3) only such other terms that are acceptable to NANTibody, NantCell, and NantPharma and their Related Parties to the extent any of them are affected by any of such other terms."

The order now adds as to specifics to the toggle framework (ie, $175.0mn PLUS payment to NANT Parties or "walk away"):

The implementation of the Settlement with NANTibody, NantCell, and NantPharma and their Related Parties (i) will be effectuated through the Debtors’ chapter 11 plan of reorganization (the “Plan”) if the Plan is effective on or prior to August 31, 2023, or (ii) if the Plan is not effective on or prior to August 31, 2023, will be effectuated prior to and separate from the Plan pursuant to this Order. Upon the entry of this Order, the Nant Parties agree to support and vote to accept the Plan (and will take no actions that could interfere with or delay confirmation of the Plan or that support any competing plan), provided that the Plan contains (1) the terms of the Settlement and all of the terms and conditions contained in this Order, (2) no terms and conditions inconsistent with the Settlement or any terms and conditions contained in this Order, and (3) only such other terms that are acceptable to NANTibody, NantCell, and NantPharma and their Related Parties to the extent any of them are affected by any of such other terms. The terms and conditions of the Settlement are as follows:

Upon the earlier to occur of the Effective Date of the Plan or August 31, 2023:

A. the Debtors shall

  1. cause NantCell to irrevocably receive $168,374,224.20 via wire transfer in accordance with the wire transfer instructions set forth on Exhibit A;
  2. cause NANTibody irrevocably to receive $17,909,786.80 or to cause NantCell to receive an additional $10,745,878.08 via wire transfer in accordance with the wire transfer instructions set forth on Exhibit A; and
  3. in the event that the payments described in the preceding clauses (i) and (ii) (collectively, the “Nant Payments”) are made on or prior to August 31, 2023, (X) Exhibits D through Exhibit H attached hereto will not become effective (except for any applicable defined terms that are incorporated herein by reference) and the Clerk of the Court shall retain them in the Court’s files and (Y) nothing in this Order shall (1) require any transfer of Sorrento Therapeutics, Inc.’s (“Sorrento”) interests in NANTibody, NantCancerStemCell LLC, NantBio, Inc. (“NantBio”) or the Exclusive License Agreement between NantCell and Sorrento or (2) impact any of the litigation (other than the judgments entered in Sorrento Therapeutics, Inc. v. NantCell, Inc., et al., Case No. 19STCV11328 and Immunotherapy NANTibody, LLC, et al. v. Sorrento Therapeutics, Inc., et. al., Case No. 19STCV18304) between the Nant Parties and their Related Parties, on the one hand, and the Debtors and their Related Parties, on the other hand, other than as set forth in Section 8 hereof; or

B. if any or both of the Nant Payments described in Section 4(A)(i) and 4(A)(ii) above have not been made on or prior to 2:00 p.m. prevailing Eastern Time on August 31, 2023 for any reason, then no later than September 6, 2023,

  1. NantBio shall cause the Debtors to irrevocably receive $1,500,000 via wire transfer in accordance with the wire instructions set forth on Exhibit B;
  2. NANTibody and/or NantCell shall certify to the Debtors, the Unsecured Creditors’ Committee, and the Equity Committee in the form attached hereto as Exhibit C (the “Certification”) that: one or more of the Nant Payments has not been timely received; and the wire described in Section 4(B)(i) above has been sent;
  3. the documents attached as Exhibits D through Exhibit H hereto shall become effective immediately, (x) if the Effective Date of the Plan occurs on or prior to August 31, 2023 as a result of the occurrence of the Effective Date of the Plan, or (y) if the Effective Date of the Plan has not occurred on or prior to August 31, 2023, pursuant to this Order;
  4. upon the Debtors’ receipt of the Certification, Jones Day is authorized to deliver a copy of the Certification to the Clerk of the Court and the Clerk of the Court shall promptly release the original and fully executed copies of all of such documents to Jones Day, 717 Travis Street, 33rd Floor, Houston Texas (and Jones Day is authorized to distribute such documents to the pertinent entities as promptly as practicable following receipt); and
  5. it is the intention of the parties that all of Sorrento’s interests and rights in any of the Related Parties be terminated upon the failure of the Debtors to make either of the Nant Payments whether or not the Plan has been confirmed or has become effective and the parties shall take reasonable additional steps to accomplish that."

Case Status

On February 13, 2023, Sorrento Therapeutics, Inc and one affiliated debtor (NASDAQ CM: SRNE; together “Sorrento Therapeutics” or the “Debtors”) filed for Chapter 11 protection noting estimated assets between $1.0bn and $10.0bn; and estimated liabilities between $100.0mn and $500.0mn. At filing, the San Diego-based Sorrento Therapeutics, “a clinical and commercial stage biopharmaceutical company developing new therapies to treat cancer, pain (non-opioid treatments), autoimmune disease and COVID-19,” noted the entrance of “enforceable judgments” ($50.0mn of a $175.0mn arbitration award enforceable immediately) in favor of the Nant Companies and “a short-term liquidity crunch” as the factors compelling their bankruptcy filings.

On March 30, 2023, the Court issued a final order authorizing the Debtors to access the $45.0mn balance, of what is in total $75.0mn of new money debtor-in-possession (“DIP”) financing being provided by JMB Capital Partners Lending, LLC. With a February 21st interim DIP order, the Debtors were given the authority to access a first $30.0mn tranche of the new money DIP.

On April 14, 2023, the Court issued an order approving proposed bidding procedures for the sale of substantially all of the Debtors’ assets as part of a “toggle Plan.”

On July 5, 2023, the Court issued an order authorizing the Debtors to access $21.6mn in new money, junior debtor-in-possession (“DIP”) financing, on an interim basis, being provided by non-debtor subsidiary Scilex Holding Company (“Scilex,” or the “Junior DIP Lender”). The request for further DIP funding comes as additional liquidity from the earlier approved $75.0mn [and now senior] DIP facility proved insufficient to carry the Debtors through what is a longer than expected stay in bankruptcy.  The Junior DIP Lender had a right of first refusal as to the provision of further DIP financing which it declined to exercise as to the Oramed DIP which it otherwise consented to.

On August 7, 2023, the Court issued a final order authorizing the Debtors to access $100.0mn of replacement, new money, debtor-in-possession (“DIP”) financing being provided by Oramed Pharmaceuticals, Inc. (“Oramed,” the “Replacement DIP Lender,” and the “Stalking Horse Buyer”) and continue using cash collateral.

General Background

Petition Date Perspective

In an 8-K filed in respect of the Chapter 11 filings, the Debtors provide:  "Ongoing Litigation. …the Company had also been engaged in arbitration before the American Arbitration Association against NantCell and NANTibody relating to alleged breaches of the April 21, 2015 Exclusive License Agreement entered into between the Company and NantCell and the June 11, 2015 Exclusive License Agreement entered into between the Company and NANTibody (the NantCell/NANTibody Arbitration'').

On December 2, 2022, the arbitrator in the NantCell/NANTibody Arbitration issued an award granting contractual damages and pre-award interest in the amounts of $156,829,562 to NantCell and $16,681,521 to NANTibody, exclusive of post-award, prejudgment interest, which will accrue at 9% per annum (the “Nant Award”)….On February 7, 2023, the Court confirmed the Nant Award and issued a 70-day stay of enforcement of the judgment beyond $50 million. Following such confirmation, the Company believed that NantCell and NANTibody, in an attempt to satisfy the unstayed $50 million portion of the Nant Award, would imminently take steps to levy the Company’s assets, which would cause significant disruption and harm to the Company’s business, including its ability to continue developing life-saving and cutting-edge drugs."

The Debtors and Scilex Holding Company (Nasdaq: SCLX, “Scilex”), a majority-owned subsidiary of Sorrento Therapeutics, Inc. (Nasdaq: SRNE, “Sorrento”) issued a press release in connection with Sorrento's Chapter 11 filing.

Henry Ji, Ph.D., Chairman and Chief Executive Officer of Sorrento, commented: “Today, Sorrento Therapeutics, Inc. and its wholly-owned direct subsidiary, Scintilla Pharmaceuticals, Inc. (“Scintilla”), commenced voluntary proceedings under Chapter 11 of the United States Bankruptcy Code in the United States Bankruptcy Court for the Southern District of Texas (the “Bankruptcy Court”). 

While Scilex is majority-owned by Sorrento, Scilex is not a debtor in Sorrento Therapeutics’ voluntary Chapter 11 filing. Scilex will continue to operate its business as usual.

As of its chapter 11 filing, Sorrento had over approximately $1 billion in assets, including a $125 million arbitration award against NantPharma, LLC for a dispute related to Sorrento’s sale of Cynviloq™. The company had approximately $235 million in liabilities as of its filing and faced a short-term liquidity crunch, due to insufficient cash or other short-term assets to satisfy certain obligations.   Included among those obligations was a $175 million arbitration award against Sorrento, which was reduced to enforceable judgments on February 7, 2023 in favor of NantCell, Inc. and Immunotherapy NANTibody LLC. While $125 million of those judgments was stayed for 70 days, $50 million was not stayed and could be enforced immediately.

Sorrento assessed that enforcement actions with respect to the $50 million unstayed portion of these judgments, such as attachment of Sorrento’s assets and bank accounts, could lead to significant business disruption. As a result, Sorrento sought chapter 11 relief to safeguard business operations and its ability to continue developing life-saving therapeutics, while protecting and maximizing value for stakeholders.”

Jaisim Shah, Chief Executive Officer and President of Scilex Holding Company, added: “Scilex is not a debtor in Sorrento’s chapter 11 filing and will continue to operate business as usual, with a focus on growing revenues, offering innovative, non-opioid pain management products and developing meaningfully differentiated programs that address significant unmet needs and lead to better health outcomes for the millions of acute and chronic pain patients.”

Goals of the Chapter 11 Filings

According to the Meghji Declaration (defined below): "While the Debtors and their advisors worked hard in the lead-up to this filing, they are still finalizing certain 'first-day motions,' which they intend to file as soon as possible within the next couple of days so that the Debtors can obtain authority to fund this week’s payroll by Thursday morning (February 16, 2023). Finally, the Debtors have started and will continue soliciting proposals for postpetition financing to provide additional funding for the remainder of these chapter 11 cases, so that Sorrento can pursue confirmation of a chapter 11 plan — which it fully intends to do. In the meantime, Sorrento is and will remain focused on maximizing value for the benefit of its estate and all stakeholders.

Given the valuable (but currently locked up and restricted (with exceptions and carveouts)) Scilex stock that STI owns, the Debtors are hopeful that — with the benefit of the breathing spell provided by the automatic stay and the opportunity to secure debtor-in-possession financing to address their short-term liquidity needs — they will be able to propose a plan of reorganization that pays off all creditors (including the Nant Companies) in full and reinstates equity."

Events Leading to the Chapter 11 Filing

In a declaration in support of the Chapter 11 filing (the “Meghji Declaration”), Mohsin Meghji, the Debtors’ chief restructuring officer, detailed the events leading to Sorrento Therapeutics' Chapter 11 filing. The Meghji Declaration provides: “Prior to commencing these chapter 11 cases, Sorrento had a healthy balance sheet but faced a short-term liquidity crunch, as it had insufficient cash or other short-term assets to satisfy certain obligations.

As detailed below, a $175 million arbitration award against Sorrento was recently reduced to enforceable judgments in favor of the Nant Companies. Sorrento feared that enforcement actions with respect to these judgements, such as attachment of Sorrento’s assets and bank accounts, was going to lead to significant business disruptions, including its ability to continue developing life-saving and cutting-edge drugs. As a result, Sorrento has sought chapter 11 relief to obtain some breathing room, protect its business, and seek to maximize value for stakeholders.”

Prepetition Indebtedness

The Debtors have historically financed themselves primarily through equity sold in “at the market offerings,” pursuant to various sales agreements, including the most recent agreement dated December 3, 2021, with Cantor Fitzgerald & Co., B. Riley Securities, Inc., and H.C. Wainwright & Co., LLC, in their capacities as sales agents (the “ATM Sales Agreement”). Under this ATM Sales Agreement, STI may issue and sell shares of its common stock by any method permitted by law deemed to be an “at the market offering” under the Securities Act of 1933. As of the Petition Date, STI has raised net proceeds of approximately $457.6 million (in the aggregate) through various sales under the ATM Sales Agreement.

In February 2022 and September 2022, STI entered into two bridge loans for $45 million and $41.6 million, respectively. Both bridge loans have been repaid in full and are no longer outstanding.

As of the Petition Date, the Debtors do not have any funded debt obligations but have approximately $235 million in general unsecured debt — primarily consisting of approximately $60 million in trade payables and approximately $175 million on account of the Nant Award, although only $50 million of that is presently due and owing (the remainder of the Nant Award has been stayed). 

About the Debtors

According to the Debtors: “Sorrento is a clinical and commercial stage biopharmaceutical company developing new therapies to treat cancer, pain (non-opioid treatments), autoimmune disease and COVID-19. Sorrento’s multimodal, multipronged approach to fighting cancer is made possible by its extensive immuno-oncology platforms, including key assets such as next-generation tyrosine kinase inhibitors (“TKIs”), fully human antibodies (“G-MAB™ library”), immuno-cellular therapies (“DAR-T™”), antibody-drug conjugates (“ADCs”), and oncolytic virus (“Seprehvec™”). Sorrento is also developing potential antiviral therapies and vaccines against coronaviruses, including STI-1558, COVISHIELD™ and COVIDROPS™, COVI-MSCTM; and diagnostic test solutions, including COVIMARK™.

Sorrento’s commitment to life-enhancing therapies for patients is also demonstrated by our effort to advance a TRPV1 agonist, non-opioid pain management small molecule, resiniferatoxin (“RTX”), and SP-102 (10 mg, dexamethasone sodium phosphate viscous gel) (SEMDEXA™), a novel, viscous gel formulation of a widely used corticosteroid for epidural injections to treat lumbosacral radicular pain, or sciatica, and to commercialize ZTlido® (lidocaine topical system) 1.8% for the treatment of postherpetic neuralgia (PHN). RTX has been cleared for a Phase II trial for intractable pain associated with cancer and a Phase II trial in osteoarthritis patients. Positive final results from the Phase III Pivotal Trial C.L.E.A.R. Program for SEMDEXA™, its novel, non-opioid product for the treatment of lumbosacral radicular pain (sciatica), were announced in March 2022. ZTlido® was approved by the FDA on February 28, 2018."

Corporate Structure Chart

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