Exhibit 10.1
NOTE Purchase Agreement
Agreement, dated November 12, 2004, among National Patent Development
Corporation, a Delaware corporation ("NPDC"), MXL Industries, Inc., a Delaware
corporation ("MXL"), and the purchasers set forth on the signature pages hereto
(the "Purchasers").
The Purchasers desire to acquire NPDC's 6% Secured Notes due 2009 from
NPDC in exchange for cash as hereinafter provided, and NPDC desires to sell such
Notes to the Purchasers.
I. The Purchase
1.1. Authorization of Notes. NPDC has authorized the issue and sale of
$1,590,000 aggregate principal amount of its 6% Secured Notes due 2009. Such 6%
Secured Notes due 2009 shall be substantially in the form set forth in Exhibit A
(references to a "Schedule" or an "Exhibit" are, unless otherwise specified, to
a Schedule or an Exhibit attached to this Agreement) and are herein referred to
individually as a "Note" and collectively as the "Notes," which terms shall also
include any notes delivered in exchange or replacement therefor.
1.2. Terms of the Purchase(a) . On the basis of the representations, warranties,
covenants, and agreements contained in this Agreement and subject to the terms
and conditions of this Agreement, at the Closing (as defined below), NPDC shall
issue and sell to each of the Purchasers, and each of the Purchasers will
purchase from NPDC, a Note in the principal amount specified opposite such
Purchaser's name in Schedule 1.2, at a purchase price for such Note equal to
100% of the principal amount of such Note. The obligations of each Purchaser
hereunder are several and not joint obligations and no Purchaser shall have any
obligation or liability to any person for the performance or non-performance by
any other Purchaser hereunder.
1.3. Closing.
(a) The closing of the transactions contemplated by Section 1.2 (the "Closing")
shall take place at the offices of Xxxxx Xxxxxx LLP, 380 Lexington Avenue, New
York, New York, at 10:00 a.m. local time on the date hereof (the "Closing
Date"). The Closing may occur at such different place, different time, or
different date as NPDC, MXL, and the Purchasers agree in writing.
(b) At the Closing, (i) NPDC shall deliver to each Purchaser, against delivery
by such Purchaser to NPDC or its order, by wire transfer of immediately
available funds, of payment of the full purchase price for the Note to be
purchased by such Purchaser, a Note in the principal amount to be purchased by
such Purchaser, dated the Closing Date, and registered in the name of such
Purchaser, and (ii) MXL shall deliver a Pledge Agreement (the "Pledge"),
substantially in the form set forth in Exhibit B.
1.4. Use of Proceeds; Transfer of Shares. NPDC shall use the proceeds of the
issue and sale of the Notes to exercise its option to purchase 2,068,966 Series
B Convertible Preferred Shares (the "Shares") of Valera Pharmaceuticals, Inc.
("Valera"). Immediately upon exercise of such option, NPDC shall contribute the
Shares to MXL. If MXL shall sell or otherwise transfer any or all of the Shares,
MXL shall pay to the Purchasers or their respective assignees, pro rata in
accordance with the amounts of the Notes they are purchasing hereunder, an
aggregate amount equal to 50% of the excess, if any, of (i) the proceeds of such
sale or other transfer of such Shares over (ii) the aggregate exercise price
paid by NPDC for such Shares.
II. Representations and Warranties of NPDC
NPDC represents and warrants to the Purchasers as follows:
2.1. Organization and Qualification. NPDC is a corporation duly organized,
validly existing, and in good standing under the laws of the State of Delaware,
with all requisite power and authority to own, lease, license, and use its
properties and assets and to carry on the business in which it is engaged. NPDC
is duly qualified to transact the business in which it is engaged and is in good
standing as a foreign corporation in every jurisdiction in which its ownership,
leasing, licensing, or use of property or assets or the conduct of its business
makes such qualification necessary.
2.2. Authority to Sell; Enforceability. NPDC has all requisite power and
authority to execute, deliver, and perform this Agreement and the Notes. All
necessary corporate proceedings of NPDC have been duly taken to authorize the
execution, delivery, and performance by NPDC of this Agreement and the Notes.
Each of this Agreement and the Notes has been duly authorized by NPDC and this
Agreement has been, and at the Closing the Notes will be, duly executed and
delivered by NPDC. Each of this Agreement and the Notes constitutes or will
constitute the legal, valid, and binding obligation of NPDC and is or will be
enforceable as to NPDC in accordance with its terms, except as limited by
applicable bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium, or other laws of general application affecting enforcement of
creditors' rights, and for general principles of equity that restrict the
availability of equitable remedies.
2.3. No Conflicts. No consent, authorization, approval, order, license,
certificate, or permit of or from, or declaration or filing with, any federal,
state, local, or other governmental authority or any court or other tribunal is
required by NPDC for the execution, delivery, or performance by NPDC of this
Agreement or the Notes, except as may be required under securities laws. No
consent of any party to any contract, agreement, instrument, lease, or license
(collectively, "Contracts") to which NPDC or any of its subsidiaries (each, an
"NPDC Subsidiary") is a party, or to which it or any of its businesses,
properties, or assets are subject, is required for the execution, delivery, or
performance of this Agreement or the Notes; and the execution, delivery, and
performance by NPDC of this Agreement and the Notes will not violate, result in
a breach of, conflict with, or (with or without the giving of notice or the
passage of time or both) entitle any party to terminate or call a default under,
entitle any party to rights and privileges that such party was not receiving or
entitled to receive immediately before this Agreement was executed under, or
create any obligation on the part of NPDC or any NPDC Subsidiary that it was not
paying or obligated to pay immediately before this Agreement was executed under,
any term of any such Contract or violate or result in a breach of any term of
the certificate of incorporation (or other charter document) or by-laws of NPDC
or any NPDC Subsidiary, or violate, result in a breach of, or conflict with any
law, rule, regulation, order, judgment, or decree binding on NPDC or any NPDC
Subsidiary or to which it or any of its businesses, properties, or assets are
subject, in each case except as would not be reasonably likely to have a
material adverse effect on NPDC and its NPDC Subsidiaries taken as a whole.
2.4. No Registration Required. Assuming the continuing accuracy of the
representations and warranties of the Purchasers contained in Article IV hereof,
the offer, sale and issuance of the Notes will be exempt from the registration
requirements of the Securities Act of 1933, as amended, and the rules and
regulations promulgated thereunder (the "Securities Act").
III. Representations and Warranties of MXL
MXL represents and warrants to the Purchasers as follows:
3.1. Organization and Qualification. MXL is a corporation duly organized,
validly existing, and in good standing under the laws of the State of Delaware,
with all requisite power and authority to own, lease, license, and use its
properties and assets and to carry on the business in which it is engaged. MXL
is duly qualified to transact the business in which it is engaged and is or will
be in good standing as a foreign corporation in every jurisdiction in which its
ownership, leasing, licensing, or use of property or assets or the conduct of
its business makes such qualification necessary.
3.2. Authority; Enforceability. MXL has all requisite power and authority to
execute, deliver, and perform this Agreement and the Pledge. All necessary
corporate proceedings of MXL have been duly taken to authorize the execution,
delivery, and performance by MXL of this Agreement and the Pledge. Each of this
Agreement and the Pledge has been duly authorized by MXL and this Agreement has
been, and at the Closing the Pledge will be, duly executed and delivered by MXL.
Each of this Agreement and the Pledge constitutes or will constitute the legal,
valid, and binding obligation of MXL and is or will be enforceable as to MXL in
accordance with its terms, except as limited by applicable bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium or other laws of
general application affecting enforcement of creditors' rights, and for general
principles of equity that restrict the availability of equitable remedies.
3.3. No Conflicts. No consent, authorization, approval, order, license,
certificate, or permit of or from, or declaration or filing with, any federal,
state, local, or other governmental authority or any court or other tribunal is
required by MXL for the execution, delivery, or performance by MXL of this
Agreement or the Pledge. No consent of any party to any Contract to which MXL or
any of its subsidiaries (each, an "MXL Subsidiary") is a party, or to which it
or any of its businesses, properties, or assets are subject, is required for the
execution, delivery, or performance of this Agreement or the Pledge; and the
execution, delivery, and performance by MXL of this Agreement and the Pledge
will not violate, result in a breach of, conflict with, or (with or without the
giving of notice or the passage of time or both) entitle any party to terminate
or call a default under, entitle any party to rights and privileges that such
party was not receiving or entitled to receive immediately before this Agreement
was executed under, or create any obligation on the part of MXL or any MXL
Subsidiary that it was not paying or obligated to pay immediately before this
Agreement was executed under, any term of any such Contract or violate or result
in a breach of any term of the certificate of incorporation (or other charter
document) or by-laws of MXL or any MXL Subsidiary, or violate, result in a
breach of, or conflict with any law, rule, regulation, order, judgment, or
decree binding on MXL or any MXL Subsidiary or to which it or any of its
businesses, properties, or assets are subject, in each case except as would not
be reasonably likely to have a material adverse effect on MXL and its MXL
Subsidiaries taken as a whole.
IV. Representations and Warranties of the Purchasers
Each Purchaser, severally and not jointly, represents and warrants to
the other parties hereto as follows:
4.1. Organization. Such Purchaser, if an entity, is duly organized, validly
existing, and in good standing under the laws of its jurisdiction of formation,
with all requisite power and authority to own, lease, license, and use its
properties and assets and to carry on the business in which it is engaged.
4.2. Authority to Buy. Such Purchaser, if an entity, has all requisite power and
authority to execute, deliver, and perform this Agreement; all necessary
proceedings of such Purchaser have been duly taken to authorize the execution,
delivery, and performance of this Agreement by such Purchaser; and this
Agreement has been duly executed and delivered by such Purchaser, is the legal,
valid, and binding obligation of such Purchaser, and is enforceable as to such
Purchaser in accordance with its terms. Such Purchaser, if an individual, has
reached the age of majority in the jurisdiction in which he resides; is a bona
fide resident of the jurisdiction contained in the address set forth on Schedule
1.2; is legally competent to execute this Agreement; and does not intend to
change residence to another jurisdiction.
4.3. Non-Distributive Intent. Such Purchaser is acquiring the Note to be
acquired by it for its own account (and not for the account of others) for
investment and not with a view to the distribution thereof. The Purchaser will
not sell or otherwise dispose of the Note to be acquired by it (whether pursuant
to a liquidating distribution or otherwise) without registration under the
Securities Act or an exemption therefrom, and such Note may contain a legend to
the foregoing effect. The Purchaser understands that it may not sell or
otherwise dispose of the Note to be acquired by it in the absence of either a
registration statement under the Securities Act or an exemption from the
registration provisions of the Securities Act.
4.4. Purchaser Status. Such Purchaser is an accredited investor within the
definition set forth in Rule 501(a) under the Securities Act.
V. Miscellaneous
5.1. Transfer Restrictions. Each Purchaser acknowledges and agrees that the
Notes are subject to restrictions on transfer as set forth therein.
5.2. Further Actions. At any time and from time to time, each party agrees, at
its expense, to take such actions and to execute and deliver such documents as
may be reasonably necessary to effectuate the purposes of this Agreement.
5.3. Entire Understanding. This Agreement and the Exhibits and Schedules hereto
set forth the entire understanding of the parties with respect to the subject
matter hereof and supersede all existing agreements among them concerning such
subject matter.
5.4. Amendments and Waivers. Any provisions of this Agreement or the Notes may
be modified, amended, or waived if, but only if, such modification, amendment or
waiver is in writing and is signed by NPDC and the Purchasers.
5.5. Notices. Any notice or other communication required or permitted to be
given hereunder shall be in writing and shall be given by Federal Express,
Express Mail, or similar overnight delivery or courier service, or delivered (in
person or by telecopy, telex, or similar telecommunications equipment) against
receipt to the party to whom it is to be given,
(a) if to NPDC:
National Patent Development Corporation
000 Xxxxxxxxxxx Xxxxxx
Xxxxx Xxxxxx, XX 00000
Attn: General Counsel
Facsimile No. (000) 000-0000
(b) if to MXL:
c/o National Patent Development Corporation
000 Xxxxxxxxxxx Xxxxxx
Xxxxx Xxxxxx, XX 00000
Attn: General Counsel
Facsimile No. (000) 000-0000
(c) if to any Purchaser:
to the address set forth for such Purchaser on
Schedule 1.2.
or to such other address as the party shall have furnished in writing in
accordance with the provisions of this Section 5.5. Any notice shall be deemed
given at the time of receipt thereof.
5.6. No Waiver; Remedies Cumulative. Any waiver by any party of a breach of any
term of this Agreement shall not operate as or be construed to be a waiver of
any other breach of that term or of any breach of any other term of this
Agreement. The failure of a party to insist upon strict adherence to any term of
this Agreement on one or more occasions will not be considered a waiver or
deprive that party of the right thereafter to insist upon strict adherence to
that term or any other term of this Agreement. The rights, powers, and remedies
of the Purchasers provided in this Agreement, the Notes, and the Pledge are
cumulative and not exclusive of any right, power, or remedy provided by law or
equity.
5.7. Binding Effect. No party may sell, assign, transfer, or otherwise convey
any of its rights or delegate any of its duties under this Agreement, except as
hereinafter provided, and this Agreement shall be binding upon and inure to the
benefit of the parties hereto and the respective permitted successors, assigns,
and personal representatives of the parties. Any attempted sale, assignment,
transfer, conveyance, or delegation in violation of this Section 5.7 shall be
void. The provisions of this Agreement shall inure to the benefit of each
indemnified party and its successors and assigns (if not a natural person) and
his assigns, heirs, and personal representatives (if a natural person).
5.8. No Third Party Beneficiaries. This Agreement does not create, and shall not
be construed as creating, any rights enforceable by any person not a party to
this Agreement (except as provided in Section 5.7).
5.9. Separability. If any provision of this Agreement is invalid, illegal, or
unenforceable, the balance of this Agreement shall remain in effect, and if any
provision is inapplicable to any person or circumstance, it shall nevertheless
remain applicable to all other persons and circumstances.
5.10. Headings. The headings in this Agreement are solely for convenience of
reference and shall be given no effect in the construction or interpretation of
this Agreement.
5.11. Counterparts; Governing Law. This Agreement may be executed in any number
of counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument. It shall be governed by
and construed in accordance with the laws of the State of New York, without
giving effect to conflict of laws.
IN WITNESS WHEREOF, the parties have duly executed this Agreement as of
the date first written above.
NATIONAL PATENT DEVELOPMENT CORPORATION
By
-----------------------------------
Name:
Title:
MXL INDUSTRIES, INC.
By
------------------------------------
Name:
Title:
Purchasers
BEDFORD OAK PARTNERS, L.P.
By
-------------------------------------
Name:
Title:
Xxxxxx Xxxxxxx
SCHEDULE 1.2 PURCHASERS
Purchaser and Address Principal Amount of Note
Bedford Oak Partners, L.P. $1,060,000
000 Xxxxx Xxxxxxx Xxxx
Xx. Xxxxx, XX 00000
Xxxxxx Xxxxxxx $530,000
c/o GP Strategies Corporation
000 Xxxxxxxxxxx Xxxxxx
Xxxxx Xxxxxx, Xxx Xxxx 00000
