THIS NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "1933 ACT"), OR ANY STATE SECURITIES LAWS. THIS NOTE HAS BEEN
ACQUIRED FOR INVESTMENT ONLY AND MAY NOT BE OFFERED, SOLD, TRANSFERRED OR
ASSIGNED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT UNDER THE
1933 ACT EXCEPT UNDER A VALID EXEMPTION FROM REGISTRATION UNDER THE ACT
AND DELIVERY TO THE COMPANY OF AN OPINION OF COUNSEL REASONABLY
SATISFACTORY IN FORM, SCOPE AND SUBSTANCE TO THE COMPANY THAT REGISTRATION
IS NOT REQUIRED.
THIS NOTE IS ISSUED UNDER AND SUBJECT TO THE TERMS OF THE NOTE PURCHASE
AGREEMENT, DATED AS OF THE DATE OF THIS NOTE (THE "PURCHASE AGREEMENT"),
BETWEEN THE COMPANY AND THE HOLDER, AS AMENDED FROM TIME TO TIME. THIS
NOTE MAY NOT BE TRANSFERRED EXCEPT AS PROVIDED IN THE PURCHASE AGREEMENT.
----------------------------
EMISPHERE TECHNOLOGIES, INC.
ZERO COUPON NOTE DUE 2006
No. 1 Issue Price: $20,000,000
$363.313 for each $1000 of principal amount at maturity
New York, New York Original Issue Discount at Maturity: $35,048,881
July 2, 1999 $636.687 for each $1000 of principal amount at maturity
----------------------------
For Value Received, EMISPHERE TECHNOLOGIES, INC., a Delaware
corporation (the "Company"), hereby promises to pay to ELAN INTERNATIONAL
SERVICES, LTD., a company incorporated under the laws of Bermuda, or its
successors or registered assigns (the "Holder") or order, the Principal Amount
of Fifty-five million, forty-eight thousand, eight-hundred and eighty-one
dollars
($55,048,881) on July 2, 2006. This Note shall not bear interest except as
specified in this Note. Original Issue Discount will accrue as specified in this
Note.
All payments of Principal of (and premium or interest, if any) on this
Note shall be made in lawful money of the United States of America. All cash
payments shall be made by wire transfer of immediately available funds to an
account designated by the Holder by written notice in accordance with the
provisions of this Note. Whenever any amount expressed to be due by the terms of
this Note is due on any day that is not a Business Day, the same shall instead
be due on the next succeeding day which is a Business Day. Capitalized terms
used and not otherwise defined in this Note have the meaning specified in the
Purchase Agreement.
The obligations of the Company under this Note shall rank in right of
payment on a parity with all other unsubordinated obligations of the Company for
the payment of borrowed money or the purchase price of property. The Note is
issued under the Purchase Agreement and is subject to the terms of the Purchase
Agreement.
The following terms shall apply to this Note:
1. Interest
1.1 This Note shall not bear interest except as specified in this
section. If the Principal Amount or any portion of the Principal Amount is not
paid when due (whether upon acceleration as provided in Article 4 of this Note,
or upon the Stated Maturity of this Note) then, in each case, the overdue amount
shall bear interest at the rate of 17% per annum, compounded semiannually (to
the extent that the payment of the interest shall be legally enforceable), which
interest shall accrue from the date the overdue amount was due to the date
payment of the amount, including interest on it, has been made and shall be
payable on demand. The accrual of interest on overdue amounts shall be in lieu
of, and not in addition to, the continued accrual of Original Issue Discount.
1.2 Original Issue Discount (the difference between the Issue Price and
the Principal Amount of this Note) in the period during which the Note remains
outstanding shall accrue at 15.0% per annum, on a semiannual bond equivalent
basis using a 360-day year consisting of twelve 30-day months, commencing on the
Issue Date of this Note, and shall cease to accrue on the earlier of (i) the
date on which the Principal Amount of this Note becomes due and payable and (ii)
any Redemption Date.
2
2. Optional Redemption
2.1 Prepayment. Upon notice given to the Holder as provided in section
2.2, the Company, at its option, may prepay all or any portion of this Note, at
any time, without penalty or premium, by paying an amount equal to either (a)
the full Redemption Price of this Note or (b) the portion of the Redemption
Price corresponding to the portion of this Note that the Company calls for
prepayment, as the case may be.
2.2 Notice.
(a) The Company may give written notice of prepayment in cash
of this Note or any portion of it, not less than 3 nor more than 60 days before
the date the Company fixes for the prepayment. Notice of the prepayment shall be
given in the manner specified in Section 7.2 of this Note.
(b) Upon notice of prepayment, the Company covenants and
agrees that it shall prepay, on the date it fixes for prepayment (a "Redemption
Date"), the portion of the outstanding Principal Amount it calls for prepayment.
2.3 Interest. Unless the Company defaults in payment of the Redemption
Price, Original Issue Discount on the portion of the Note called for redemption
and interest, if any, will cease to accrue on and after the Redemption Date.
3. Covenants
Until the payment by the Company of all principal of, and interest (if
any) on, this Note and all other amounts due at the time of payment of such
principal and interest, if any, to the Holder, the Company covenants and agrees
as follows:
3.1 Payment of Notes. The Company shall promptly make all payments in
respect of the Note on the dates and in the manner provided in this Note.
3
3.2 Payment of Obligations. The Company will pay and discharge, and
will cause each Significant Subsidiary to pay and discharge, all material
obligations and liabilities, including tax liabilities, except where the same
may be contested in good faith by appropriate proceedings.
3.3 Maintenance of Property; Insurance.
(a) The Company will keep, and will cause each Significant
Subsidiary to keep, all property useful and necessary in its business in good
working order and condition, ordinary wear and tear excepted.
(b) The Company will maintain, and will cause each Significant
Subsidiary to maintain, with financially sound and responsible insurance
companies, insurance in at least those amounts and against those risks as it
reasonably believes is adequate for the conduct of its businesses and the value
of its properties.
3.4 Conduct of Business and Maintenance of Existence. The Company will
continue, and will cause each Significant Subsidiary to continue, to engage in
business of the same general type as now conducted, and will preserve, renew and
keep in full force and effect, and will cause each Significant Subsidiary to
preserve, renew and keep in full force and effect, its corporate existence and
its rights, privileges and franchises necessary or desirable in the normal
conduct of business.
3.5 Compliance with Laws. The Company will comply, and will cause each
Significant Subsidiary to comply, in all material respect with all applicable
laws, ordinances, rules, regulations, decisions, orders and requirements of
governmental authorities and courts except (i) where compliance is contested in
good faith by appropriate proceedings or (ii) where non-compliance could not be
reasonably expected to have a material adverse effect on the business, financial
condition, performance or properties of the Company and its Significant
Subsidiaries, taken as a whole.
3.6 Books and Records. The Company shall, and shall cause each of its
Significant Subsidiaries to, keep proper books of record and account, in which
full and correct entries shall be made of all financial transactions and the
assets and business of the Company and each Significant Subsidiary, in
accordance with U.S. generally accepted accounting principles consistently
applied to the Company and its Significant Subsidiaries, taken as a whole.
4
3.7 Inspection. The Company will permit representatives of the Holder
to visit and inspect any of its properties, to examine its corporate, financial
and operating records and make copies of or abstracts from these records, and to
discuss its affairs, finances and accounts with its directors, officers and
independent public accountants, all at such reasonable times during normal
business hours and as often as may be reasonably requested, upon reasonable
advance notice to the Company.
3.8 Withholding Taxes. All payments made by the Company under or with
respect to the Note shall be made free and clear of, and without withholding or
deduction for or on account of, any present or future Taxes (excluding net
income Taxes imposed on the Holder as a result of a present or former connection
between the United States and such Holder (except a connection arising from such
Holder having delivered, executed or performed its obligations or received a
payment under, or enforced, this Note)). If any such Taxes are levied or imposed
on such payments, the Company agrees to pay on behalf of the Holder the full
amount of such Taxes to the appropriate authority in accordance with applicable
law. Neither the Holder nor the Company will take any action that is reasonably
likely to result in the imposition of Taxes on payments made under or with
respect to the Note. In addition, the Holder and the Company agree to use
commercially reasonable efforts to cooperate with each other to prevent the
imposition of Taxes on payments made under or with respect to the Note. Without
prejudice to the Company's obligation to make payments under or with respect to
the Note free and clear of, and without withholding or deduction for or an
account of, any present or future Taxes, the Holder agrees to provide the
Company with a complete, manually-signed copy of Internal Revenue Service Form
W-8 (or successor form) on or before the date any such form previously provided
becomes obsolete and promptly after the occurrence of any event requiring a
change in the most recent form delivered to the Company, certifying that the
Holder is entitled to complete exemption from withholding Tax on payments made
under or with respect to the Note, provided that the Holder is legally able to
provide such form. If the Company pays any Tax on behalf of the Holder in
accordance with the provisions of this Section 3.8, the Holder and the Company
agree to use commercially reasonable efforts to cooperate with each other in
obtaining a refund of such Taxes. If such efforts do not secure a full refund of
such Taxes, the Holder agrees to pay the Company an amount equal to 70 percent
of the Tax paid and not refunded by the Company on the Holder's behalf.
3.9 Further Instruments and Acts. Upon request of the Holder, the
Company will execute and deliver any further instruments and do any further acts
as
5
may be reasonably necessary or proper to carry out more effectively the
provisions of this Note.
4. Defaults and Remedies
4.1 Events of Default. Each of the following shall be an "Event of
Default":
(a) Failure to Pay Principal. The Company fails to pay the
Principal Amount or the Redemption Price when due, whether at maturity, upon
redemption or otherwise, as applicable;
(b) Breach of Covenant. The Company defaults in the observance
or performance of any agreement, covenant, term or condition contained in this
Note or the Purchase Agreement (other than those referred to in Section 4.1(a))
and the failure continues for 30 days after receipt by the Company of notice of
a default;
(c) Breach of Representation and Warranty. Any material
representation or warranty of the Company made in this Note or in the Purchase
Agreement shall be false or misleading in any material respect when made;
(d) Default under License Agreement. The Company fails to
perform or observe any other agreement, covenant, term or condition contained in
the License Agreement;
(e) Certain Voluntary Proceedings. The Company or any
Significant Subsidiary shall commence a voluntary case or other proceeding
seeking liquidation, reorganization or other relief with respect to itself or
its debts under any bankruptcy, insolvency or other similar law now or later in
effect or seeking the appointment of a trustee, receiver, liquidator, custodian
or similar official of it or any substantial part of its property, or shall
consent to any relief of that kind or to the appointment of or taking possession
by any official in an involuntary case or proceeding commenced against it, or
shall make a general assignment for the benefit of creditors, or shall fail
generally to pay its debts as they become due or shall admit in writing its
inability generally to pay its debts as they become due; or
(f) Certain Involuntary Proceedings. An involuntary case or
other proceeding shall be commenced against the Company or any Significant
Subsidiary seeking liquidation, reorganization or other relief with respect to
it or its
6
debts under any bankruptcy, insolvency or other similar law now or later in
effect or seeking the appointment of a trustee, receiver, liquidator, custodian
or other similar official of it or any substantial part of its property, and the
involuntary case or other proceeding shall remain undismissed and unstayed for a
period of 60 consecutive days.
4.2 Remedies.
(a) If an Event of Default (other than an Event of Default
specified in paragraph (e) or (f) of Section 4.1) occurs and is continuing, the
Holder, by notice to the Company, may declare the Issue Price and accrued
Original Issue Discount through the date of declaration on the Note to be
immediately due and payable. Upon a declaration of that kind, the Issue Price
and accrued Original Issue Discount shall become and be due and payable
immediately. If an Event of Default specified in paragraphs (e) and (f) of
Section 4.1 occurs and is continuing, the Issue Price and accrued Original Issue
Discount on the Note shall become and be immediately due and payable without any
declaration or other act on the part of any Holder. The Holder by notice to the
Company, may rescind an acceleration and its consequences if the rescission
would not conflict with any judgment or decree and if all existing Events of
Default have been cured or waived except nonpayment of the Issue Price and
accrued Original Issue Discount (or accrued and unpaid interest) that have
become due solely as a result of acceleration. No rescission shall affect any
subsequent or other Default or Event of Default or impair any consequent right.
(b) If an Event of Default occurs and is continuing, the
Holder may pursue any available remedy to collect the payment of the Issue Price
and accrued Original Issue Discount on the Note or to enforce the performance of
any provision of the Note.
(c) A delay or omission by the Holder in exercising any right
or remedy accruing upon an Event of Default shall not impair the right or remedy
or constitute a waiver of, or acquiescence in, the Event of Default. No remedy
is exclusive of any other remedy. All available remedies are cumulative.
(d) The Company covenants (to the extent it may lawfully do
so) that it will not at any time insist upon, or plead, or in any manner
whatsoever claim or take the benefit or advantage of, any stay or extension law
or any usury or other law whenever enacted, now or at any time after the Issue
Date in force, which would prohibit or forgive the Company from paying all or
any portion of the Principal Amount or Redemption Price, in each case, in
respect of this Note, or any
7
interest on those amounts, as contemplated in this Note, or which may affect the
covenants or the performance of this Note; and the Company (to the extent it may
lawfully do so) expressly waives all benefit or advantage of any law of this
type, and covenants that it will not hinder, delay or impede the execution of
any power granted in this Note to the Holder, but will suffer and permit the
execution of every power as though no law of this type had been enacted.
(e) If an Event of Default occurs and is continuing, the
Holder, by notice to the Company, may require the Company to enter into a
non-exclusive, royalty-free license to all intellectual property rights
(including, but not limited to, patent and know-how rights) of the Company and
its Affiliates relating to all heparin technology and products.
5. Successor Corporation
5.1 The Company shall not consolidate with, amalgamate with, merge with
or into, or sell, assign, transfer, lease, convey or otherwise dispose of all or
substantially all of its assets (as an entirety or substantially as an entirety
in one transaction or a series of related transactions), to any Person unless:
(a) (i) the Company shall be the continuing Person, or (ii)
the Person (if other than the Company) formed by the consolidation or
amalgamation or into which the Company is merged or to which the properties and
assets of the Company are sold, assigned, transferred, leased, conveyed or
otherwise disposed of (in any case, the "Successor Company") shall expressly
affirm, in writing, the due and punctual performance of all of the terms,
covenants, agreements and conditions of the Note to be performed or observed by
the Company, and the obligations shall remain in full force and effect; and
(b) immediately before and immediately after giving effect to
the transaction, no Default or Event of Default shall have occurred and be
continuing.
5.2 In connection with any consolidation, amalgamation, merger or sale,
assignment, transfer, lease, conveyance or other disposition of assets, the
Company shall deliver, or cause to be delivered, to the Holder an Opinion of
Counsel stating that (i) the consolidation, amalgamation, merger or sale,
assignment, transfer, lease, conveyance or other disposition of assets complies
with this article, (ii) all conditions precedent in this article relating to the
transaction or transactions have been complied with and (iii) the affirmation
required by this article has been duly
8
authorized, executed and delivered by the Successor Company and the Note is a
valid and legally binding obligation of the Successor Company enforceable
against it in accordance with its terms (subject to bankruptcy, insolvency,
reorganization and similar laws affecting the rights and remedies of creditors
generally and general equitable principles).
5.3 For purposes of this article, the transfer (by sale, assignment,
lease, conveyance or other disposition, in a single transaction or series of
related transactions) of all or substantially all of the properties or assets of
one or more Subsidiaries of the Company, the capital stock of which constitutes
all or substantially all of the properties and assets of the Company, shall be
deemed to be the transfer of all or substantially all of the properties and
assets of the Company.
5.4 Upon any consolidation, amalgamation or merger, or any sale,
assignment, transfer, lease, conveyance or other disposition of all or
substantially all of the assets of the Company in accordance with this article,
the Successor Company shall succeed to, and be substituted for, and may exercise
every right and power of, the Company under the Note with the same effect as if
the Successor Company had been named as the Company in the Note.
6. Definitions
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with the specified Person. For the purposes of this definition,
"control," when used with respect to any specified Person, means the power to
direct or cause the direction of the management and policies of the Person,
directly or indirectly, whether through the ownership of Voting Stock, by
contract or otherwise; and the terms "controlling" and "controlled" have
meanings correlative to the above.
"Business Day" means any day (other than a Saturday or Sunday) on which
institutions in The City of New York are not authorized or obligated by law or
executive order to close.
"Company" means Emisphere Technologies, Inc., a Delaware corporation.
"Default" means any event which is, or after notice or passage of time
or both would be, an Event of Default.
9
"Elan" means Elan Corporation, plc, a company incorporated under the
laws of Ireland.
"Event of Default" has the meaning specified in Section 4.1.
"Holder" has the meaning set forth on the face of this Note.
"Issue Date" means the date on which this Note was originally issued or
deemed issued as set forth on the face of this Note.
"Issue Price" means, in connection with the original issuance of this
Note, the initial issue price at which this Note is issued as set forth on the
face of this Note.
"JV Agreement" means the Joint Venture Agreement, dated as of September
26, 1996, among Elan, the Company and Ebbisham Limited, a company incorporated
under the laws of Ireland.
"License Agreement" shall mean the License Agreement, dated as of the
date of this Note, between the Company and Elan.
"1933 Act" means the Securities Act of 1933, as amended (or any
successor statute), and the rules and regulations of the SEC under it.
"1934 Act" means the Securities Exchange Act of 1934, as amended (or
any successor statute), and the rules and regulations of the SEC under it.
"Note" means this Zero Coupon Note due 2006, as amended and
supplemented from time to time as provided in the Purchase Agreement.
"Original Issue Discount" means the difference between the Issue Price
and the Principal Amount of this Note as set forth on the face of this Note. For
purposes of this Note, accrual of Original Issue Discount shall be calculated on
a semi-annual bond equivalent basis using a 360 day year consisting of twelve
30-day months.
"Permitted Transferee" means any Person which is an Affiliate or a
subsidiary, including an off-balance sheet special purpose vehicle, of the
Holder or its Affiliates.
10
"Person" means any individual, corporation, partnership, limited
liability company, joint venture, association, joint-stock company, trust,
unincorporated organization or government, or any agency or political
subdivision of any of them.
"Principal" or "Principal Amount" means the Principal Amount as set
forth on the face of this Note as it may be reduced in accordance with the terms
of this Note.
"Purchase Agreement" has the meaning set forth on the face of this
Note.
"Redemption Date" means a date specified for redemption of this Note in
accordance with its terms.
"Redemption Price" means the Issue Price plus accrued Original Issue
Discount and interest, if any, as of the applicable Redemption Date.
"SEC" means the Securities and Exchange Commission, or any successor
organization of it.
"Significant Subsidiary" means a subsidiary which is a "significant
subsidiary" as that term is defined in Rule 1-02 of Regulation S-X of the SEC as
in effect on the date of this Note.
"Stated Maturity" means the seventh anniversary of the date of this
Note.
"Subsidiary" of any specified Person means any corporation,
partnership, joint venture, limited liability company, association or other
business entity, whether now existing or later organized or acquired, (i) in the
case of a corporation, of which more than 50% of the total voting power of the
capital stock entitled (without regard to the occurrence of any contingency) to
vote in the election of its directors, officers or trustees is held by the
specified Person or any of its Subsidiaries or (ii) in the case of a
partnership, joint venture, limited liability company, association or other
business entity, with respect to which the specified Person or any of its
Subsidiaries has the power to direct or cause the direction of the management
and policies of the entity by contract or otherwise.
11
"Successor Company" has the meaning set forth in Section 5.1(a) of this
Note.
"Taxes" means any present or future tax, duty, levy, impost, assessment
or other government charge (including penalties, interest and any other
liabilities related to them) imposed or levied by or on behalf of any government
or any political subdivision or territory or possession of any government or any
authority or agency of any of them having power to tax.
"Voting Stock" means stock of any class or classes, however designated,
having general voting power under ordinary circumstances to elect a majority of
the board of directors, managers or trustees of a Person, other than stock
having the power only by reason of the occurrence of a contingency.
7. Miscellaneous
7.1 No Waiver. No failure or delay on the part of the Holder in the
exercise of any power, right or privilege under this Note shall operate as a
waiver under this Note, nor shall any single or partial exercise of any power,
right or privilege preclude other or further exercise of any other right, power
or privilege. All rights and remedies existing under this Note are cumulative
to, and not exclusive of, any rights or remedies otherwise available.
7.2 Notices. Any notices or other communications required or permitted
under this Note shall be sufficiently given if delivered personally or sent by
nationally recognized overnight delivery service or facsimile (receipt
confirmed), addressed as follows:
(a) if to the Company, to:
Emisphere Technologies, Inc.
000 Xxx Xxx Xxxx Xxxxx Xxxx
Xxxxxxxxx, Xxx Xxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attention: Xxxxxxx X. Xxxxxxxx
12
with a copy to:
Xxxx, Weiss, Rifkind, Xxxxxxx & Xxxxxxxx
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attention: Xxxx X. XxXxxxx, Esq.
and to:
H. Xxxxxx Xxxxxx, Esq.
00 Xxxx Xxxxx Xxxxx
Xxxxxxxx, Xxx Xxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
(b) if to the Holder, to:
Elan International Services, Ltd.
000 Xx. Xxxxx Xxxxx
Xxxxxx, Xxxxx'x Xxxxxx
Xxxxxxx XX00
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attention: Chief Financial Officer
with a copy to:
Xxxxxx Xxxxxx & Xxxxxxx
00 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attention: Xxxxxxx X. Xxxxxxxx, Esq.
All notices shall be deemed to have been received (i) on the date
delivered, if delivered by facsimile or personally or (ii) on the second day
after the notice is delivered into the possession and control of a nationally
recognized overnight delivery service, duly marked for delivery to the receiving
party. A party may change the address to which notice or other communication
under this Note is to be delivered by giving the other party notice in the
manner set forth in this section. If any notice, filing, delivery or payment
shall be required by the terms of this Note to
13
be made on a day that is not a Business Day, the notice, filing, delivery or
payment shall be made on the immediately succeeding Business Day.
7.3 Severability. Each provision of this Note shall be considered
separable and if for any reason any provision which is not essential to the
effectuation of the basic purpose of this Note shall be invalid, illegal or
unenforceable, the validity, legality and enforceability of the remaining
provisions shall not in any way be affected or impaired.
7.4 Amendment Provision. This Note or any of its terms may not be
changed, waived, discharged or terminated unless the change, waiver, discharge
or termination is in writing signed by the Company and the Holder.
7.5 Assignability; Successor. This Note shall be binding upon the
Company and its successors, and shall inure to the benefit of and be binding
upon the Holder and its successors and Permitted Transferees. The Company may
not assign any of its rights or delegate any of its obligations under this Note.
All agreements of the Company in this Note shall bind its successor.
7.6 Transfer of Note.
(a) This Note has not been and is not being registered under
the provisions of the 1933 Act or any state securities laws and this Note may
not be transferred unless (1) the transferee is a Permitted Transferee and (2)
the Holder shall have delivered to the Company an opinion of counsel, reasonably
satisfactory in form, scope and substance to the Company, to the effect that
this Note may be sold or transferred without registration under the 1933 Act.
Prior to any transfer, the transferee shall have represented in writing to the
Company that the transferee has requested and received from the Company all
information relating to the business, properties, operations, condition
(financial or other), results of operations or prospects of the Company deemed
relevant by the transferee; that the transferee has been afforded the
opportunity to ask questions of the Company concerning the above and has had the
opportunity to obtain and review the reports and other information concerning
the Company which at the time of the transfer have been filed by the Company
with the SEC under the 1934 Act.
(b) The Holder may not transfer this Note unless (i) the
Holder first physically surrenders this Note to the Company, after which time
the Company shall issue and deliver upon the order of the Holder a new note of
like tenor, registered as the Holder (upon payment by the Holder of any
applicable
14
transfer taxes) may request, representing in the aggregate the remaining unpaid
Principal Amount of this Note and (ii) the transfer is otherwise in compliance
with this section.
7.7 Enforceable Obligation. The Company represents and warrants that at
the time of the original issuance of this Note, it received the full purchase
price payable under the Purchase Agreement in an amount at least equal to the
Issue Price, and that this Note is an enforceable obligation of the Company
which is not subject to any offset, reduction, counterclaim or allowance of any
sort, subject to bankruptcy, insolvency, fraudulent conveyance or transfer,
moratorium and other laws of general applicability relating to or affecting
creditors' rights and to general equitable principles.
7.8 Replacement of Notes. Upon receipt by the Company of evidence
reasonably satisfactory to it of the ownership of and the loss, theft
destruction or mutilation of this Note and (a) in the case of loss, theft or
destruction, of indemnity from the Holder reasonably satisfactory in form, scope
and substance to the Company (and without the requirement to post any bond or
other security) or (b) in the case of mutilation, upon surrender and
cancellation of this Note, the Company will execute and deliver to the Holder a
new Note of like tenor.
7.9 Entire Agreement. This Note together with the Purchase Agreement
constitutes the entire agreement between the Company and the Holder with respect
to the transactions contemplated by them.
7.10 Section and Other Headings. The section and other headings
contained in this Note are for reference purposes only and shall not be deemed
to be a part of this Note or to affect the meaning or interpretation of this
Note.
7.11 GOVERNING LAW. THIS NOTE SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, AS APPLIED TO CONTRACTS MADE
AND PERFORMED WITHIN THE STATE OF NEW YORK, WITHOUT GIVING EFFECT TO THE
PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT THAT THE APPLICATION OF LAWS OF
ANOTHER JURISDICTION WOULD BE REQUIRED BY THEM.
15
In WITNESS WHEREOF, the Company has caused this instrument to be duly
executed.
EMISPHERE TECHNOLOGIES, INC.
By: /s/ Xxxxxxx Xxxxxxxx
--------------------
Name: Xxxxxxx Xxxxxxxx
Title: Chief Financial Officer
AGREED AND ACKNOWLEDGED:
ELAN INTERNATIONAL SERVICES, LTD.
By: /s/ Xxxxx Xxxxxx
----------------
Name: Xxxxx Xxxxxx
Title: President
[NOTE]
16
