Exhibit 10.75

April 16, 2025

Scilex Holding Company

960 San Antonio Rd.

Palo Alto, CA 94303

Attn: Stephen Ma

VIA EMAIL

 

RE:	Consent, Waiver and Amendment re Tranche A Senior Secured Promissory Note and Related Transaction Documents (this “Consent, Waiver and Amendment”)

Ladies and Gentlemen:

Reference is made to (i) that certain Securities Purchase Agreement, dated as of September 21, 2023 (the “SPA”), between Scilex Holding Company, a Delaware corporation (the “Company”), Oramed Pharmaceuticals, Inc., a Delaware corporation (“Oramed”), as Initial Purchaser (as defined therein) and Acquiom Agency Services LLC, a Colorado limited liability company (“Acquiom”), as collateral agent for the Note Holders (as defined therein), (ii) that certain Senior Secured Promissory Note, dated as of September 21, 2023 (as amended, supplemented or modified from time to time, the “Note”), issued by the Company to Oramed, as Holder (the “Holder”), (iii) that certain Amended and Restated Security Agreement, dated as of October 8, 2024 (the “Security Agreement”), among, inter alios, the Company, and the subsidiaries of the Company party thereto and Acquiom, as the collateral agent (the “Agent”) for (x) the Holder and (y) the holders of Tranche B Notes (as defined in the Security Agreement) (the “Tranche B Holders” and together with the Holder, each a “Holder” and collectively, the “Holders”), their endorsees, transferees and assigns (collectively with the Agent, the “Secured Parties”) and as collateral agent for the holders of certain Tranche B Notes (as defined therein), (iv) each Tranche B Senior Secured Convertible Note delivered by the Company to each Tranche B Holder, in each case, dated as of October 8, 2024 (each, a “Tranche B Note” and collectively, the “Tranche B Notes”), (v) that certain Intercompany Indebtedness Subordination Agreement, dated as of September 29, 2023, among the Company, the other Subordinated Lenders (as defined therein) party thereto, Subordinated Debtors (as defined therein) and the Agent (as amended, restated, amended and restated, supplemented or otherwise modified from time to time) (the “Intercompany Subordination Agreement”), (vi) that certain Subsidiary Guarantee, dated as of September 21, 2023, made by the Company, Scilex, Inc., Semnur Pharmaceuticals, Inc., Scilex Pharmaceuticals Inc., SCLX Stock Acquisition JV LLC and SCLX Dre Holdings LLC in favor of the Holder (the “Guarantee”), and (vii) all related Transaction Documents, as defined in the SPA.

Capitalized terms used but not defined herein are used with the respective meanings assigned to them in the SPA, the Note, the Security Agreement or the Intercompany Subordination Agreement, as applicable.

WHEREAS, the Company intends to form an entity in a joint venture with a third party whereby such entity shall be named Scilex Bio, Inc., a Delaware corporation (“Bio JV”);

WHEREAS, the Company intends to document the formation of Bio JV (“Bio JV Formation”) pursuant to customary corporate documentation including but not limited to a certificate of formation, bylaws and any related corporate documents entered into in connection therewith (the “Bio JV Formation Documents”);

WHEREAS, the Company has requested that the Agent and Holder waive all requirements under the applicable Transaction Documents that would require Bio JV to become party to any such Transaction Documents in any capacity, including, but not limited to, in the capacity as a Subsidiary, Grantor, Debtor, Guarantor or any other related capacities described in greater detail below;

WHEREAS, the Company has requested that the Agent and Holder make certain amendments to the SPA, the Note, the Security Agreement, the Perfection Certificate, the Intercompany Subordination Agreement and the Guarantee;

WHEREAS, on or after the date hereof, the Company, Bio JV, and the other parties thereto shall enter into (i) the Contribution Agreement, in substantially the form attached hereto as Annex A (the “Contribution Agreement”, and together with the other documents, instruments and agreements executed and delivered in connection therewith or otherwise relating thereto, the “Designated Contribution Documents”), pursuant to which, among other things, the Company will contribute to Bio JV the Contributed Securities (as defined in the Contribution Agreement) and (ii) the KDS2010 Assignment and License Agreement, substantially in the form attached hereto as Annex B (the “License Agreement”, and together with the other documents, instruments and agreements executed and delivered in connection therewith or otherwise relating thereto, the “Designated License Documents”, and together with the Designated Contribution Documents and the Bio JV Formation Documents, each a “Designated Transaction Document” and collectively, the “Designated Transaction Documents”) (the transactions contemplated by the Designated Transaction Documents and Bio JV Formation, collectively, the “Designated Transactions”);

WHEREAS, the Company has requested and the Agent and the Holder agree pursuant to the terms set forth herein, to (i) consent to the Company’s entry into and the consummation of the applicable Designated Transactions and the Designated Transaction Documents, (ii) make certain amendments to the SPA, the Note, the Security Agreement, the Perfection Certificate, the Intercompany Subordination Agreement and the Guarantee, and (iii) waive any covenant or provision in any Transaction Document, including, but not limited to, the SPA, the Note, the Security Agreement, the Intercompany Subordination Agreement and the Guarantee, that would require Bio JV to become party to any Transaction Document in any capacity;

WHEREAS, the Agent, Holder and the Company have duly authorized the execution and delivery of this Consent, Waiver and Amendment and have done all things necessary to make this Consent, Waiver and Amendment a valid and binding agreement in accordance with its terms; and

NOW, THEREFORE, in consideration of the mutual agreements herein contained and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the following is agreed:

Section 1 Consent.

(a) The provisions of the Note, the SPA, the Security Agreement and the other Transaction Documents to the contrary notwithstanding, the undersigned Agent and Holder hereby consent as of the Effective Time (as defined below) to the execution of the Designated Transaction Documents, the consummation of the Designated Transactions in accordance with the terms of the Designated Transaction Documents and the performance by the Company of its obligations thereunder.

(b) The foregoing limited consents contained in Section 1(a) (i) are each a one-time consent, (ii) are each expressly limited to the consents described above in Section 1(a), (iii) shall not be deemed or otherwise construed to constitute a consent to any other transaction, whether or not similar to the consents described above in Section 1(a), and (iv) shall not operate as a waiver of any right, power or remedy of the Agent or any Holder under the Note, any other Transaction Document or any other document, instrument or agreement executed in connection therewith, nor constitute a waiver, release or modification of the Company’s or any Subsidiary’s obligations to comply with all terms and conditions of the Note and other Transaction Documents, in each case, except as expressly set forth above in Section 1(a) and Section 2 below. The Agent and the Holder have granted the limited consent set forth in Section 1(a) in this particular instance and in light of the facts and circumstances that presently exist, and the grant of such consent shall not constitute a course of dealing or impair the Agent’s or any Holder’s right to withhold any similar consent or waiver in the future.

Section 2 Waiver. The provisions of the Security Agreement, the Intercompany Subordination Agreement, and the other Transaction Documents to the contrary notwithstanding, the undersigned Agent and Holder hereby waive as of the Effective Time hereof (i) the requirement set forth in Section 4(ii) of the Security Agreement, (ii) the requirement set forth in Section 18 of the Intercompany Subordination Agreement, (iii) the requirement set forth in Section 5(m) of the Guarantee, and (iv) any other term of any Transaction Document, in each case, which would require Bio JV to become party to the Security Agreement as an Additional Debtor (as defined in the Security Agreement) or become party to such agreement in any other capacity, become party to the Intercompany Subordination Agreement as a Subsidiary, a Qualified Subsidiary (as defined in the Intercompany Subordination Agreement), an obligor in respect of any Subordinated Intercompany Obligations (as defined in the Intercompany Subordination Agreement) or a Subordinated Debtor (as defined in the Intercompany Subordination Agreement), become party to the Guarantee as a Guarantor, Subsidiary, subsidiary or debtor in respect of any obligations, or become party to such agreement in any other capacity or become party to any other Transaction Document in any capacity. For the avoidance of doubt, under no circumstances shall Bio JV be required to join the Security Agreement, the Intercompany Subordination Agreement or any other Transaction Document in any capacity.

Section 3 Amendments to Certain Transaction Documents.

(a) Effective as of the time of execution and delivery of this Consent, Waiver and Amendment, the undersigned Agent, Holder and the Company agree that (where applicable, language being inserted is evidenced by bold and underline formatting (indicated textually in the same manner as the following example: bold and underline formatting) and language being deleted is evidenced by strike-through formatting (indicated textually in the same manner as the following example: strike-through formatting):

(i) Section 1 of the Note is hereby amended by amending and restating the following definitions in their entirety as follows:

(A) “”Qualified Subsidiary” means any Subsidiary that has executed and delivered the Subsidiary Guaranty to the Holder and in which the Agent (for the benefit of the Secured Parties) has a perfected, first priority Lien (other than with respect to assets subject to Permitted Liens under clause (c)(ii) and (c)(iii) thereof, in which, in each case, Agent (for the benefit of the Secured Parties) shall have a perfected, second priority Lien) in substantially all of the assets and property of such Subsidiary. Notwithstanding anything to the contrary herein, any reference to “Subsidiary”, “subsidiary” or “Qualified Subsidiary” used herein or in any Transaction Document shall be deemed to expressly exclude Scilex Bio, Inc., a Delaware corporation or any of its subsidiaries.”

(B) “”Subject Entity” means any Person, Persons or Group or any Affiliate or associate of any such Person, Persons or Group. Notwithstanding anything to the contrary herein, any reference to “Subject Entity” used herein or in any Transaction Document shall be deemed to expressly exclude Scilex Bio, Inc., a Delaware corporation and any of its subsidiaries.”

(ii) All references to “Subsidiary”, “Subsidiaries” or “subsidiary” in the Note shall be deemed to expressly exclude Scilex Bio, Inc., a Delaware corporation or any of its subsidiaries.

(iii) Section 7(a) of the Note is hereby amended by adding the following sentence to the end of Section 7(a):

“For the avoidance of doubt, the Company shall not, and shall not permit any of the Subsidiaries, to transfer any assets or rights of the Company or any Subsidiary to any Subsidiary that is not a Qualified Subsidiary without the prior written consent of the Required Holders.”

(iv) Section 1.1 of the SPA is hereby amended by amending and restating the following definitions in their entirety as follows:

(A) “”Qualified Subsidiary” means any Subsidiary that has executed and delivered the Subsidiary Guaranty to the Holder and in which the Agent (for the benefit of the Secured Parties) has a perfected, first priority Lien (other than with respect to assets subject to Permitted Liens under clause (c)(ii) and (c)(iii) thereof, in which, in each case, Agent (for the benefit of the Secured Parties) shall have a perfected, second priority Lien) in substantially all of the assets and property of such Subsidiary. Notwithstanding anything to the contrary herein, any reference to “Subsidiary”, “subsidiary” or “Qualified Subsidiary” used herein or in any Transaction Document shall be deemed to expressly exclude Scilex Bio, Inc., a Delaware corporation or any of its subsidiaries.”

(B) “”Subsidiary” means any subsidiary of the Company as set forth on Schedule 3.1(a) and shall, where applicable, include any direct or indirect subsidiary of the Company formed or acquired after the date hereof. Notwithstanding anything to the contrary herein, any reference to “Subsidiary”, “subsidiary” or “Qualified Subsidiary” used herein or in any Transaction Document shall be deemed to expressly exclude Scilex Bio, Inc., a Delaware corporation or any of its subsidiaries.”

(v) Section 22 of the Security Agreement is hereby amended by adding the following sentence to the end of Section 22:

(A) “Notwithstanding anything to the contrary herein, any reference to “Subsidiary”, “subsidiary” or “Qualified Subsidiary” used herein or in any Transaction Document shall be deemed to expressly exclude Scilex Bio, Inc., a Delaware corporation or any of its subsidiaries.”

(vi) Section 18 of the Intercompany Subordination Agreement is hereby amended and restated in its entirety as follows:

(A) “Additional Subordinated Parties. Upon execution and delivery after the date hereof by any Qualified Subsidiary that has become, or shall become, an obligor or obligee in respect of any Subordinated Intercompany Obligations of a counterpart signature hereto, such Person shall automatically become a party hereto as a “Subordinated Debtor”, a “Subordinated Lender” or both, as the case may be, with the same force and effect as if originally named as such herein. The rights and obligations under this Agreement of each other party hereto shall remain in full force and effect notwithstanding the addition of any such Person as a party to this Agreement. “Notwithstanding anything to the contrary herein, any reference to “Subsidiary”, “subsidiary”, “Qualified Subsidiary”, “Subordinated Debtor” or “obligor” used herein or in any Transaction Document shall be deemed to expressly exclude Scilex Bio, Inc., a Delaware corporation or any of its subsidiaries.”

(vii) The Perfection Certificate is hereby amended as follows:

(A) The disclosures set forth on Section 1(g) to the Perfection Certificate shall be amended and restated in the form of Annex C attached hereto.

(B) The disclosures set forth on Section 2(b) to the Perfection Certificate shall be amended and restated in the form of Annex D attached hereto.

(C) Schedule 3 to the Perfection Certificate shall be amended and restated in the form of Annex E attached hereto.

(D) Schedule 7 to the Perfection Certificate shall be amended and restated in the form of Annex F attached hereto.

(E) Schedule 8 to the Perfection Certificate shall be amended and restated in the form of Annex G attached hereto.

(F) Schedule 9 to the Perfection Certificate shall be amended and restated in the form of Annex H attached hereto.

(G) Schedule 10 to the Perfection Certificate shall be amended and restated in the form of Annex I attached hereto.

(H) Schedule 11 to the Perfection Certificate shall be amended and restated in the form of Annex J attached hereto.

(viii) Section 5(m) of the Guarantee is hereby amended and restated in its entirety as follows:

(A) “Additional Guarantors. The Company shall cause each of its domestic subsidiaries formed or acquired on or subsequent to the date hereof to become a Guarantor for all purposes of this Guarantee by executing and delivering an Assumption Agreement in the form of Annex 1 hereto. Notwithstanding anything to the contrary herein, any reference to “Guarantor”, “Subsidiary”, “subsidiary”, or “debtor” used herein or in any Transaction Document shall be deemed to expressly exclude Scilex Bio, Inc., a Delaware corporation or any of its subsidiaries.”

Section 4 Agent Direction. The Holder hereby authorizes and directs the Agent to execute this Consent, Waiver and Amendment and to enter into any documentation, including, but not limited to the Designated Transaction Documents, reasonably required by Section 1 above.

Section 5 Representations and Warranties. In order to induce the Agent and the Holder to enter into this Consent, Waiver and Amendment, the Company hereby represents and warrants as of the date hereof that:

(a) the Company has the full right, power and authority to enter into and execute this Consent, Waiver and Amendment and to perform all its obligations hereunder and under the Note and the Transaction Documents, as modified herein;

(b) the execution and delivery of this Consent, Waiver and Amendment has been duly and validly authorized by all necessary action on the part of the Company, and shall constitute the legal, valid and binding obligations of the Company enforceable against the Company in accordance with the terms hereof, except (i) as limited by general equitable principles and applicable bankruptcy, insolvency, reorganization, moratorium and other Laws of general application affecting enforcement of creditors’ rights generally; and (ii) as limited by Laws relating to the availability of specific performance, injunctive relief or other equitable remedies;

(c) neither the execution and delivery of this Consent, Waiver and Amendment, nor the taking of any actions contemplated hereby and the performance of the obligations hereunder or the Designated Transactions by the Company or any other Subsidiary, does or will, with or without the giving of notice, lapse of time or both, (i) violate or constitute a default, event of default, or event creating a right of acceleration, termination or cancellation of any obligation under any term or provision of any agreement, credit facility, debt or other instrument evidencing Company or Subsidiary Indebtedness (after giving effect to any prior or concurrent consents or waivers under any such agreement, credit facility, debt or other instrument to which the Company or such Subsidiary is a party or otherwise subject, copies of which consents or waivers have been furnished by the Company to the Agent prior to the execution of this Consent, Waiver and Amendment); or (ii) violate any rule, regulation, order, judgment, injunction, decree or other restriction of any court or governmental authority to which the Company or a Subsidiary is subject (including federal and state securities laws and regulations), or by which any property or asset of the Company or a Subsidiary is bound or affected;

(d) no authorization, consent, approval, license, exemption of or filing or registration with any governmental authority, is or will be necessary for the execution, delivery and performance by the Company of its obligations under this Consent, Waiver and Amendment or the performance by the Company of the Designated Transactions; and

(e) immediately prior to and after giving effect to this Consent, Waiver and Amendment, no Default or Event of Default exists and is continuing on the date hereof and no Default or Event of Default could reasonably be expected to occur as a result of the consummation of the Designated Transactions.

Section 6 Affirmation.

(a) Except as expressly consented to pursuant to Section 1 hereof, the Company hereby expressly reaffirms, as of the date hereof, all its covenants and agreements contained in the Note and each Transaction Document (in each case, as amended hereby) and agrees that none of its covenants and agreements set forth in the Note or any other Transaction Document (in each case, as amended hereby) shall be reduced or limited by the execution and delivery of this Consent, Waiver and Amendment except as expressly set forth herein.

(b) The Company (on behalf of itself and its Subsidiaries) hereby (i) affirms that each of the Liens granted in or pursuant to the Security Documents are valid and subsisting, and (ii) agrees that this Consent, Waiver and Amendment and all documents executed in connection herewith shall in no manner impair or otherwise adversely affect any of the Liens granted in or pursuant to the Security Documents and such Liens continue unimpaired with the same priority to secure repayment of all Obligations in accordance with the Transaction Documents, whether heretofore or hereafter incurred.

Section 7 Condition Subsequent. The Company hereby covenants and agrees that no later than April 16, 2025 (or such later date as agreed to by the Agent in writing), the Agent shall have received reimbursement or payment in full of all actual reasonable and documented fees and expenses of Pryor Cashman LLP, as counsel for the Agent, to the extent invoiced on or prior to the Consent, Waiver and Amendment Effective Date.

Section 8 Miscellaneous.

(a) The Company hereby represents and warrants to the Holder that: (a) nothing in this Consent, Waiver and Amendment, including, without limitation, the transactions contemplated hereby, constitutes material non-public information and (b) as of the time of execution of this Consent, the Holder is not in possession of any material, nonpublic information received from the Company or any of its Subsidiaries or any of their respective officers, directors, employees, affiliates or agents, that has not been publicly disclosed. Further, the Company expressly acknowledges and agrees that, as of the date hereof, the Holder shall not have, any duty of confidentiality with respect to, or a duty not to trade on the basis of, any material, non-public information regarding the Company or any of its Subsidiaries. The Company understands and confirms that the Holder will rely on the foregoing representations in effecting transactions in securities of the Company.

(b) Except as otherwise set forth in this Section 7(b), this Consent, Waiver and Amendment shall be effective (the “Effective Time”) upon the due execution and delivery by the Company and the Holder of this Consent, Waiver and Amendment.

(c) Section headings in this Consent, Waiver and Amendment are included herein for convenience of reference only and shall not constitute a part of this Consent, Waiver and Amendment for any other purposes.

(d) This Consent, Waiver and Amendment may be executed with counterpart signature pages or in any number of counterparts, each of which shall be deemed to be an original, but all such separate counterparts shall together constitute but one and the same agreement. In proving this Consent, Waiver and Amendment or any other Transaction Document in any judicial proceedings, it shall not be necessary to produce or account for more than one such counterpart signed by the party against whom such enforcement is sought. Any signatures hereto delivered by electronic transmission shall be deemed an original signature hereto.

(e) No waiver or modification hereof or of any agreement referred to herein shall be binding or enforceable unless in writing and signed by all of the parties hereto or thereto.

(f) From and after the date on which this Consent, Waiver and Amendment shall be effective, the term “Transaction Documents” in the Note and the other Note Documents shall include, without limitation, this Consent, Waiver and Amendment and any agreements, instruments and other documents executed and/or delivered in connection herewith.

(g) THE TERMS AND PROVISIONS OF SECTION 31 (GOVERNING LAW) OF THE NOTE ARE HEREBY INCORPORATED HEREIN BY REFERENCE AND SHALL APPLY TO THIS CONSENT, WAIVER AND AMENDMENT MUTATIS MUTANDIS AS IF FULLY SET FORTH HEREIN.

(h) Notwithstanding anything to the contrary set forth in any Transaction Document, the parties agree that each party hereto (including the Holder and Agent) is responsible for paying for their own fees, costs and expenses, including legal fees incurred in connection with this Consent, Waiver and Amendment except that, so long as Company has received an invoice for such amounts on or prior to the date hereof, within 5 Business Days following the date of this Consent, Waiver and Amendment, the Company agrees to reimburse actual, reasonable and documented legal fees incurred by the Holder, and/or the Agent (including those incurred in connection with any other consent delivered in connection with the Tranche A Note).

[Remainder of Page Intentionally Left Blank]

IN WITNESS WHEREOF, each of the undersigned have caused their respective signature page to this Consent, Waiver and Amendment to be duly executed as of the date first written above.

 

[Signature Page to Tranche A Consent]

IN WITNESS WHEREOF, each of the undersigned have caused their respective signature page to this Consent, Waiver and Amendment to be duly executed as of the date first written above.

 

[Signature Page to Tranche A Consent]

IN WITNESS WHEREOF, each of the undersigned have caused their respective signature page to this Consent, Waiver and Amendment to be duly executed as of the date first written above.

 

[Signature Page to Tranche A Consent]