ECLI:NL:RBAMS:2026:4838

1. Procedural history

Madryn filed its application on 9 April 2026 and uploaded it to eNCC.

The Court gave directions on 14 April 2026. It identified the interested parties (belanghebbenden; reference was made to Amsterdam District Court 23 August 2012,

ECLI:NL:RBAMS:2012:BY1439) and added the Purchaser as an interested party. As – according to Madryn – there were no other secured creditors, no other interested parties were identified.

At the request of Madryn, the Court ordered:

that all parties to which the content of the Valuation Report is disclosed were prohibited from disclosing any information therein to third parties pursuant to Article 28(1) of the Dutch Code of Civil Procedure (DCCP) and Article 8.4.4 of the NCC Rules of Procedure;

if and to the extent that the content of the Valuation Report would be discussed during the hearing, that part of the hearing would take place behind closed doors pursuant to Article 27 DCCP and Article 7.5 of the NCC Rules of Procedure; and

that the Court would, as appropriate, take the confidential nature of the documents into account when giving its judgment on the application (pursuant to Article 9.3 of the NCC Rules of Procedure).

The Court notified the interested parties of the date of the hearing through a request for service under the 1965 Convention on the service abroad of judicial and extrajudicial documents in civil or commercial matters (the Hague Convention).

Subsequently, documents were received by the Court evidencing that the service was completed successfully.

On 7 May 2026, Madryn submitted its pleading notes.

The Court held a hearing on 8 May 2026. The lawyers mentioned above were present in the courtroom, and several persons on Madryn’s side attended by videoconference. The interested parties did not appear, nor in person nor represented by counsel. The attendees answered the Court’s questions.

Judgment was set for today.

2. Facts – background

The Pledgor is the sole shareholder of the Company and two non-U.S. based subsidiaries, namely BioQ Pharma Limited (UK) and BioQ Pharma Pty Ltd (Australia), (together the Group). The Group has a specialty pharmaceutical business focused on the development and commercialisation of a portfolio of innovative, ready-to-use, self-contained, large-volume infusible pharmaceutical products and delivery systems.

In 2017, a credit facility was made available pursuant to a credit agreement (the Credit Agreement) between the Pledgor (as borrower), certain subsidiaries of the Pledgor (as guarantors), Madryn (as administrative agent) and certain lenders (the Lenders).

On 30 December 2024, the Pledgor created a first ranking right of pledge in favour of Madryn over the Pledgor’s shares in the Company (the Shares) in order to secure the Pledgor’s obligations under the Credit Agreement (the Deed of Pledge). The Deed of Pledge provides – insofar as relevant – as follows:

“(…)

8 Enforcement

Default

Failure to satisfy a Secured Liability when it falls due shall constitute a default within the meaning of Section 3:248, subsection 1, of the Civil Code in the performance thereof without any further reminder or notice of default being required.

When enforceable

The Pledge shall be immediately enforceable on and at any time after the occurrence of an Event of Default which is continuing, provided that there is a default (verzuim) in the performance of any of the Secured Liabilities within the meaning of Section 3:248, subsection 1, of the Civil Code.

(…)

22 Governing law and jurisdiction

Governing law

(a) This deed and any non-contractual obligations arising out of or in connection

with it are governed by Dutch law.

(b) If the Pledgor is represented by an attorney in connection with the execution of

this deed or any other agreement or document pursuant hereto, then the Parties

agree and accept that as between the Pledgor and the Pledgee, any matters

referred to in article 11 of the Hague Convention on the Law Applicable to

Agency of the fourteenth day of March nineteen hundred and seventy-eight are

governed by Dutch law.

(c) The Parties agree and accept that any power of attorney granted in this deed

and any matters referred to in article 8 and article 11 of the Hague Convention

on the Law Applicable to Agency of the fourteenth day of March nineteen

hundred and seventy-eight in respect thereof are governed by Dutch law.

Jurisdiction

(a) The courts of Amsterdam, the Netherlands, have exclusive jurisdiction to settle

any dispute arising out of or in connection with this deed (including a dispute

relating to non-contractual obligations arising out of or in connection with this

deed or a dispute regarding the existence, validity or termination of this deed)

(a "Dispute").

(b) Paragraph (a) above is for the benefit of the Pledgee only. As a result, the

Pledgee shall not be prevented from taking proceedings relating to a Dispute in

any other courts with jurisdiction, and the chamber for international commercial

matters at the Amsterdam District Court (the Netherlands Commercial Court).

To the extent allowed by law, the Pledgee may take concurrent proceedings in

any number of jurisdictions. (…)”

As the administrative agent, Madryn holds a claim in its own name against the Pledgor. That

claim is based on the parallel debt structure set out in the Deed of Pledge.

The shares in the non-Dutch subsidiaries are also pledged for the benefit of Madryn in its capacity as administrative agent under the Credit Agreement. The enforcement of these pledges is coordinated with the proceedings in this case.

On 9 April 2026, Madryn and the Purchaser entered into a Share Purchase Agreement (the SPA) to the effect that Madryn sells the Shares to the Purchaser and agrees to transfer the Shares to the Purchaser on the closing date. The consideration for the purchase of the Shares under this Agreement amounts to USD 5,500,000.00 (the Bid Amount). The condition precedent for the closing of the SPA is that this Courts grants permission for the sale of the Shares as requested in these proceedings. The clauses on applicable law and jurisdiction read as follows:

“(…)

Governing law

This Agreement and the documents to be entered into pursuant to it, save as expressly referred to therein, and any non-contractual obligations arising out of or in connection with this Agreement, shall be governed by the laws of the Netherlands.

Submission to jurisdiction

All disputes arising out of or in connection with this Agreement, will be resolved by the Amsterdam District Court following proceedings in English before the Chamber for International Commercial Matters ("Netherlands Commercial Court" or "NCC"), to the exclusion of the jurisdiction of any other courts. An action for interim measures, including protective measures, available under the laws of the Netherlands may be brought in the NCC's Court in summary proceedings in proceedings in English. Any appeals against NCC or NCC's Court in summary proceedings judgements will be submitted to the Amsterdam Court of Appeal's Chamber for International Commercial Matters. The NCC Rules of Procedure apply.

(…)”

3. Application

Madryn, in its capacity as Pledgee under the Deed of Pledge, requests the Court to grant permission within the meaning of Article 3:251 (1) DCC to Madryn to transfer

any and all pledged shares that Pledgor holds in the issued share capital of the

Company to the Purchaser for an amount of USD 5,500,000.

4. Discussion

Jurisdiction and applicable law

As several of the parties are domiciled outside of the Netherlands (in the United States of America (USA)), this is an international matter. In the Deed of Pledge (Exhibit 6), Pledgee, Pledgor and the Company agreed that the Amsterdam District Court would have exclusive jurisdiction to settle any dispute arising out of or in connection with the Deed of Pledge. The Purchaser agreed to the same in the SPA (Clause 7.11). This means that the Amsterdam District Court has jurisdiction under Article 25(1) of the Brussels Regulation (recast) (1215/2012). Article 438a of the Dutch Code of Civil Procedure (DCCP) concerning personal jurisdiction for applications based on Article 3:251 of the Dutch Civil Code (DCC) does not apply as the Brussels Regulation directly determines which court has jurisdiction.

Articles 1.3.1 and 1.3.2 of the NCC Rules of Procedure reflect Article 32a DCCP, which is the statutory framework for proceedings to be held in English before the NCC and the NCC in Summary Proceedings (CSP). This case is a civil or commercial matter, the pledge is a particular legal relationship within the parties’ autonomy and the matter is not subject to Subdistrict Court jurisdiction or to the exclusive jurisdiction of any other chamber or court.

In the Deed of Pledge, the Pledgee, Pledgor and the Company agreed that the Pledgee would “not be prevented from taking proceedings relating to this deed to the chamber for international commercial matters at the Amsterdam District Court (the Netherlands Commercial Court)”. The Purchaser also agreed with dispute resolution by the NCC in the SPA (Clause 7.11). Therefore, the requirements for this Court to deal with this case are fulfilled and the CSP is the appropriate chamber.

The fact that the NCC clause in the Deed of Pledge did not expressly stipulate that the parties agreed to litigate in English is immaterial. As is evident from Article 32a DCCP – on which the clause relies – the purpose of litigating before the NCC is that it is done in English, except where the parties have requested for the proceedings to be Dutch (Article 32a(4) DCCP). Such a request has not been made before or during these proceedings.

The Company’s statutory seat is in the Netherlands and Dutch law therefore provides the rules on property law in respect of the Shares. Hence, Dutch law will be applied. The parties to the Share Pledge (the Pledgor, the Company and the Pledgee) also explicitly chose Dutch law as the applicable law to the Deed of Pledge (Clause 22.1 of the Deed of Pledge). The same applies to the SPA (Clause 7.10).

Enforcement of the pledge

Article 3:251 DCC governs the enforcement of the pledge. Article 3:250 DCC provides the general rule that an enforcement sale is to be held in public, i.e. by way of a public auction. Article 3:251 DCC offers an alternative:

Article 3:251

- 1. […] the provisional relief judge of the District Court may, upon the request of the pledgee or pledgor, order that the pledged asset is sold by foreclosure in a different way than the one meant in the previous Article […].

No one disputes that the Pledgor is in default (verzuim) under the Credit Agreement. The Pledgor acknowledged as much in the forbearance agreements concluded between the parties. The amount owed to Madryn (as per 7 May 2026) is USD 60,039,939.86. The default triggered the enforcement clause of the Deed of Pledge (Clause 8.2). Therefore, Madryn has the right to enforce the pledge.

When the right to enforcement arises, a pledgee has the right to decide if and when to proceed with enforcement. The Court on its own initiative has to examine whether, at the time the application was made, the requested alternative to a public auction (in this case: the Proposed Credit Bid) would realise the maximum possible value. This examination is done in the interest of the pledgor, other secured creditors and other creditors in general. The interest of the company whose shares are being sold do not prevail over the interest of the pledgee and creditors to realise the maximum possible value.

The credit bid proposed in the SPA (the Proposed Credit Bid) will have the following result:

Madryn (as Seller) sells the Shares to the Purchaser.

The consideration for the Shares is USD 5,500,000 (the Bid Amount).

Concurrent with the transfer of the Shares, the Purchaser’s obligation to pay the Bid Amount to Madryn shall be discharged by way of set-off against the Purchaser Claims (as defined in the SPA).

For the purpose of the SPA, the Bid Amount shall be equal to or lower than the total outstanding amount of the Purchaser Claims, such that, upon the effectiveness of the SPA and the set-off on Closing (as defined in the SPA), the Purchaser’s payment obligation to Madryn and the corresponding loan receivable owing from Madryn to the Purchaser shall both be fully discharged.

The end result of the Credit Bid will be that the Pledgor is discharged from its payment obligations under the Credit Agreement for an amount equal to the Bid Amount.

Madryn has shown that (a) it is not likely that a public sale will result in a higher value than the Proposed Credit Bid, and (b) there are no indications that another private sale than the Proposed Credit Bid would be probable, let alone realise more value than the Proposed Credit Bid. This is based on the following reasoning.

First, the market is aware of the Pledgor’s need for financing. As demonstrated by the Pledgor’s management presentation (Exhibit 18), it has actively explored the market but has been unable to attract interest. At that time, it only secured a total of USD 2,400,000 in cash, which is insufficient to repay the aggregate amount owed to Madryn (more than USD 60 million). No third party has put forward a developed or implementable proposal to purchase the Shares, let alone that such a potential investor would be willing to make a better bid than Madryn for the shares of only one of the Group’s entities.

Second, the cash consideration of EUR 5.5 million is based on the valuation report (the Valuation Report; Exhibit 9) prepared by [valuator] (the Valuator) on 18 February 2026. In the Valuation Report, the Valuator concluded that the value of the Shares on a going concern basis is between USD 1,500,000 (low) and USD 5,500,000 (high) as per the Valuation Date, which is the date the Transaction will be completed. The Valuator also prepared a valuation of the Shares on the basis of an auction which resulted in a value between USD 1,050,000 (low) and USD 3,850,000 (high). The Court notes that the consideration for the Shares in the Proposed Credit Bid is at the top end of the Valuation Report, and is based on a going concern scenario. This scenario is too optimistic, as Madryn explained, because Pledgor ceased commercialisation of its products in early 2024, there seems to be no current cashflow, the Group lacks sufficient funding to resume trading in the short term, and the Group's financial key performance indicators plummeted from US 3.2 million in fiscal year (FY) 2020 to USD 0.2 million in FY 2024.

This leads to the conclusion that Madryn has sufficiently shown that the Credit Bid will deliver maximum value for the Shares.

That means that the Court will grant the permission requested.

Costs

Madryn did not ask the Court to determine and award costs. Based on Article 289 DCCP, the Court can award costs, also on its own initiative. However, as these proceedings were necessitated by law (Article 3:251 DCC) and Madryn had to file this request, irrespective of the interested parties’ position, the Court sees insufficient grounds for a cost award.

5. Conclusion and order

Permission is granted for the Shares to be sold and transferred by Madryn to the Purchaser under the conditions described in the SPA.

No costs are awarded.

This judgment is enforceable notwithstanding appeal.

Done by N.A.J. Purcell, Judge, assisted by W.A. Visser, Clerk of the Court.

Issued in public on 20 May 2026.

APPROVED FOR DISTRIBUTION IN eNCC