First Amendment to Agreement by and between M+W U.S., Inc. and Athenex, Inc., effective as of March 27, 2018

Exhibit 10.31.1

FIRST AMENDMENT

TO THE

AGREEMENT

THIS FIRST AMENDMENT TO THE AGREEMENT (the “First Amendment”) effective as of March 27, 2018, (the “First Amendment Effective Date”), is by and between Athenex, Inc., a(n) New York Company/Corporation/Sole Proprietor/LLC, having an address at Conventus Building, 1001 Main Street, Suite 600, Buffalo NY 14023 (hereinafter referred to as “Owner”) and M+W U.S., Inc., a Delaware Corporation, having an address at 201 Fuller Road, Suite 401, Albany, New York 12203, (hereinafter referred to as “M+W”).  Capitalized terms used and not otherwise defined herein shall have the meaning set forth in the AGREEMENT (as defined below).

RECITALS:

Whereas Owner and M+W entered into that certain Agreement, between M+W U.S., Inc. and Owner, (collectively the “parties”), dated 29 December, 2017 (the “Original Agreement”).

Whereas, Owner and M+W desire to further supplement and amend the Original Agreement, including all previous Amendments, if any, on the terms and conditions set forth herein.  

Whereas, the Original Agreement executed by the parties is in the form of AIA A141 (the “Form”). The Form is structured to allow for Preliminary Design to be accomplished and then, by using such Preliminary Design documents approved by the Owner, establish a Guaranteed Maximum Price (GMP) for the overall Contract Sum. The Form is structured to memorialize such GMP in AIA A141 Exhibit A, (called the ‘Amendment’)

Whereas, the Original Agreement requires the parties agree to a GMP prior to continuing on with the execution of the remainder of the Work, specifically the:

Whereas, the parties agree that “Phase I of the Work” of the Original Agreement (§1.1.6.1) and “Phase II of the Work” (BOD) (§1.1.6.2.2), have both been properly performed.  

Whereas, the parties agree that they will not be prepared to agree to a GMP by February 28, 2018 as contemplated by the Original Agreement

NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Owner and M+W agree that the Original Agreement shall be further amended as of the First Amendment Effective Date as follows which shall supersede the Original Agreement as stated herein:

“§ 14.1.11  In order to recover liquidated damages, the Owner is under no obligation to prove the actual damages sustained by the Owner due to the Design-Builder’s delay in performance.   The parties agree that liquidated damages shall be computed as follows for each and every day that completion of the Work shall be delayed beyond the date of the Date of Substantial Completion (as may have been adjusted during the course of the Project by Change Order).  For the first thirty (30) days after the Date of Substantial Completion, Design Builder shall owe the Owner no liquidated damages for every day past the Date of Substantial Completion for the Project (as it may have been adjusted by Change Order). Design Builder shall owe the Owner liquidated damages in the amount of $2,500 per day for every day the Design-Builder fails to achieve Substantial Completion per the schedule for Project (as it may have been adjusted by Change Order)for the thirty-first (31^st) through ninetieth (90^th) day of said failure.   The Design-Builder shall owe the Owner liquidated damages in the amount of $5,000 per day for failure to achieve Substantial Completion within ninety-one (91) to one hundred fifty (150) days of the contractually required date of Substantial Completion (as it may have been adjusted by Change Order).   Any failure of the Design-Builder to achieve Substantial Completion (as it may have been adjusted by Change Order) pursuant to the Project schedule after one hundred fifty (150) days shall result in liquidated damages of $7,500 per day.”

Ҥ1.1.7.4 b) placement of Electrical Switchgear Equipment order by 30 July, 2018;

  §1.1.7.4 c) delivery of Electrical Switchgear Equipment at the site by 22 March, 2019;

  §1.1.7.4 d) Letter of Intent for structural steel mill pricing - Issued by 19 March, 2018;

  §1.1.7.4 e) Commencement of the Phase III site work by 16 April, 2018.”

Failure to achieve any or all of the dates listed at no fault of Design Builder, the parties therein shall also further extend the agreed-to Substantial Completion Date on the stated day-for-day basis. Additional new dates shall trigger further extension of Substantial Completion Dates.

and REPLACED with the following:

2

7) COMPENSATION – Adjustments to the Contract Sum are as shown below:

* NOTE: The Total Contract Sum shown here may be further adjusted by additional mutually agreed to Change Orders in accordance with the provisions of the Original Agreement between the parties, after the Effective Date of this Amendment. The parties each agree execution of this Amendment does not prohibit such further adjustments to the Contract Sum after the Effective Date of this Amendment.

IN WITNESS WHEREOF, Owner and M+W have entered into this First Amendment to the Original Agreement effective as of the First Amendment Effective Date indicated above.

Agreed and accepted by:

1.Detail Design-March thru Oct 12 2018

AMND#1- Exhibit - 1

5/31/2018 R

Detail Design forward, providing design support of early procurement of process equipment and long lead mechanical /electrical equipment. Review shop drawings for early construction packages answer bidders questions. And completing DD to allow Bidding Activities for Construction

3

2.Construction Support Services from Design - March thru Oct 12 2018

Detail Design Team, providing design support of early procurement of process equipment and long lead mechanical /electrical equipment. Review shop drawings for early construction packages answer bidders questions. And submittal package reviews from DD to allow Bidding Activities for Construction

3,Construction Management Services               March thru Oct 12, 2018

Services provided for early procurement packages for Site,Steel,Foundations,Building Core/Shell, Process and Long Lead Mechanical/ Electrical Equipment,Construction Trailor Setup and Temporary Power Hookup. Construction Management Services, invoicing, team set up and site oversite.

4.Construction Commitments

5.Long Lead Equipment

4

6, Insurance

7, Fee at 2.5% on COW              To Be Billed Monthly on COW

8, Travel Allowance

5