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Exhibit 10.32
PUT AGREEMENT
THIS AGREEMENT, dated as of December 30, 1997, by and between SEPRACOR
INC., a Delaware corporation ("Sepracor"), to FLEET NATIONAL BANK (the "Bank").
WHEREAS, Versicor, Inc., a Delaware corporation (the "Company"), and
the Bank have entered into a Revolving Credit, Term Loan and Security Agreement
dated as of December 31, 1996 as amended by the First Amendment Agreement dated
as of the date hereof (as further amended, supplemented or restated from time to
time, the "Credit Agreement") pursuant to which the Bank has agreed, subject to
the terms and conditions set forth therein, to make a term loan to the Company
(the "Term Loan"), such Term Loan to be evidenced by the Company's Term Notes,
each payable to the order of the Bank (the "Notes"); and
WHEREAS, Sepracor holds in excess of 19% of the outstanding capital
stock of the Company on a fully diluted basis and the making of the Term Loan
will therefore be beneficial to Sepracor; and
WHEREAS, the Bank has agreed to accept this Agreement from Sepracor in
substitution for the Guaranty Agreement (Sepracor/Versicor) dated as of December
31, 1996 previously delivered by Sepracor to the Bank; and
WHEREAS, the obligation of the Bank to make the Term Loan is subject to
the condition, among others, that Sepracor shall execute and deliver this Put
Agreement;
NOW, THEREFORE, in consideration of the willingness of the Bank to make
the Term Loan to the Company, and for other good and valuable consideration,
receipt of which is hereby acknowledged by Sepracor, Sepracor hereby agrees as
follows:
1. Put Right. The Bank shall have the right at any time after an
Event of Default (as each such term is defined in the Credit Agreement) has
occurred to require Sepracor to purchase up to $2,000,000 in principal amount of
the Term Loan (the "Put Right") on the terms and subject to the provisions of
this Section; provided, that so long as no Event of Default has occurred, the
Put Right shall terminate and Sepracor shall not be obligated to purchase any
portion of the Term Loan (i) at such time as the outstanding amount of the Term
Loan (including principal, accrued interest and premium, if any) shall no longer
exceed $4,000,000 or (ii) upon the closing by the Company of an underwritten
public offering pursuant to an effective registration statement under the
Securities Act of 1933, as amended, covering the offer and sale of the Company's
common stock for the account of the Company in which the aggregate net cash
proceeds (after deduction of any underwriting discounts, commissions or
expenses) received by the Company from such public offering shall exceed
$25,000,000. The Put Right may be exercised by the Bank delivery of written
notice (the "Put Notice") to Sepracor not less than ten (10) days prior to the
proposed date of purchase and sale (the "Settlement Date"). The Put Notice shall
state the proposed Settlement Date, the amount of the Term Loan to be
transferred, and the Put Purchase Price (as defined below) as well as provide
wire instructions for payment
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of the Put Purchase Price. The purchase price (the "Put Purchase Price") shall
be an amount equal to the sum of (i) the principal amount of the Term Loan
proposed to be transferred in the Put Notice, (ii) the amount of any accrued
interest and premium, if any, related to such principal amount and (iii) any
reasonable costs of the Bank related to the exercise of the Put Right (including
reasonable attorneys' fees and disbursements). On the Settlement Date, Sepracor
will pay the Put Purchase Price to the Bank in immediately available funds and
the Bank shall deliver a Term Note of the Company, in the original principal
amount of $2,000,000, endorsed to Sepracor, without recourse. Upon the
termination of the Amended and Restated Revolving Credit and Security Agreement
dated as of December 31, 1996 between Sepracor and the Bank or any successor
agreement, prior to the termination by the Bank of this Agreement, Sepracor
shall provide the Bank with cash collateral or other collateral in the form of
securities reasonably acceptable to the Bank in an amount not less than the
amount of the Put Purchase Price on the date of the termination of such
agreement.
2. Transfer of Security Interest. Upon consummation of the sale
contemplated by the Put Right and provided that the Bank has received with
respect to the Term Loan irrevocable and indefeasible payment in cash in full
and all obligation under the Credit Agreement have been discharged in full, the
Bank shall exercise reasonable efforts to cause the assignment to Sepracor of
its security interest and all UCC-1 financing statements filed by the Bank
against the Company; provided that the Bank shall not assign any security
interest granted pursuant to the Control and Security Agreement. Sepracor
expressly and knowingly acknowledges that the Bank has made no representations
or warranties to Sepracor as to the filing or locations for filing of any
financing statements or as to the perfection or enforceability of any security
interest. The Bank shall be under no obligation to Sepracor as to the
maintenance and enforceability of any security interest against the Company
prior to any transfer of a security interest contemplated by this Section 2 and
without the consent of Sepracor, may release any such security interest at its
sole discretion.
3. Waiver of Demands, Notices, Diligence, etc. Sepracor hereby
assents to all of the terms and conditions of the Term Loan and waives: (a)
demand for the payment of the principal of the Term Loan or of any claim for
interest or any part of any thereof (other than the Put Right provided for in
Section 1 hereof); (b) notice of the occurrence of a default or an event of
default under the Term Loan; (c) protest of the nonpayment of the principal of
the Term Loan or of any claim for interest or any part thereof; (d) notice of
presentment, demand and protest; (e) notice of acceptance of any guaranty herein
provided for or of the terms and provisions thereof or hereof by the Bank; (f)
notice of any indulgences or extensions granted to the Company or any successor
to the Company or any person or party which shall have assumed the obligations
of the Company; (g) any requirement of diligence or promptness on the part of
the Bank in the enforcement of any of its rights under the provisions of the
Term Loan or this Agreement; (h) any enforcement of the Term Loan; (i) any right
which Sepracor might have to require the Bank to proceed against any guarantor
of the Term Loan or to realize on any collateral security therefor; and (j) any
and all notices of every kind and description which may be required to be given
by any statute or rule of law in any jurisdiction. The waivers set forth in this
Section 3 shall be effective notwithstanding the fact that the Company ceases to
exist by reason of its liquidation, merger, consolidation or otherwise.
Notwithstanding anything to the contrary contained herein, the Bank shall not
without the prior written consent of Sepracor, release any
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collateral securing the Term Loan or any obligations of Versicor under the Term
Notes.
4. Obligations of Sepracor Unconditional. The obligations of
Sepracor under this Agreement shall be unconditional, irrespective of the
validity, regularity or enforceability of the Term Loan, and shall not be
affected by any action taken under the Term Loan in the exercise of any right or
remedy therein conferred, or by any failure or omission on the part of the Bank
to enforce any right given thereunder or hereunder or any remedy conferred
thereby or hereby, or by any waiver of any term, covenant, agreement or
condition of the Term Loan or this Agreement, or by any release of any security
or any guaranty at any time existing for the benefit of the Term Loan, or by the
merger or consolidation of the Company, or by sale, lease or transfer by the
Company to any person of any or all of its properties, or by any action of the
Bank granting indulgence or extension to, or waiving or acquiescing in any
default by, the Company or any successor to the Company or any person or party
which shall have assumed its obligations, or by reason of any disability or
other defense of the Company or any successor to the Company, or by any
modification, alteration, or by any circumstance whatsoever (with or without
notice to or knowledge of Sepracor) which may or might in any manner or to any
extent vary the risk of Sepracor hereunder, it being the purpose and intent of
Sepracor that the obligations of Sepracor hereunder shall be absolute and
unconditional under any and all circumstances and shall not be discharged except
by payment or performance as herein provided, and then only to the extent of
such payment or performance. Notwithstanding anything to the contrary contained
herein, the Bank shall not without the prior written consent of Sepracor,
release any collateral securing the Term Loan or any obligations of Versicor
under the Term Notes.
5. Subordination of Claims of Sepracor. Any claims against the
Company to which Sepracor may be or become entitled (including, without
limitation, claims pursuant to any Term Note transferred hereunder pursuant to
the Put Right, claims by subrogation or otherwise by reason of any payment or
performance by Sepracor in satisfaction and discharge, in whole or in part, of
its obligations under this Agreement) shall be and hereby are made subject and
subordinate to the prior irrevocable and indefeasible payment or performance in
full of the Term Loan (including principal, interest and premium, if any).
6. Reinstatement. This Agreement shall continue to be effective,
or be reinstated, as the case may be, if at any time any amount received by the
Bank in respect of the Term Loan is rescinded or must otherwise be restored or
returned by the Bank upon the insolvency, bankruptcy, dissolution, liquidation
or reorganization of the Company or Sepracor or upon the appointment of an
intervenor or conservator of, or trustee or similar official for, the Company or
Sepracor or any substantial part of any of their respective properties, or
otherwise, all as though said payments had not been made.
7. Notices. Except as otherwise provided herein, all notices to
Sepracor or the Bank shall be in writing and shall be deemed to have been
sufficiently given or served for all purposes hereof if personally delivered or
mailed by first class mail, postage prepaid, as follows:
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(a) if to Sepracor:
Sepracor Inc.
000 Xxxxx Xxxxx
Xxxxxxxxxxx, Xxxxxxxxxxxxx 00000
Attention: Xxxxxx X. Xxxxxxx
Senior Vice President
with a copy to:
Xxxx X. Xxxxx, Esquire
Xxxx & Xxxx
00 Xxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
(b) if to the Bank:
Fleet National Bank
00 Xxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: Xxxxxxxx X. Xxxxxxx
Vice President
with a copy to:
Xxxxxx Xxxxxxx, Esquire
Xxxxxx & Dodge
Xxx Xxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
or at such other address as the party to whom such notice or demand is directed
may have designated in writing to the other party hereto. A notice shall be
deemed to have been given upon the earlier to occur of (i) three (3) days after
the date on which it is deposited in the U.S. mails or (ii) receipt by the party
to whom such notice is directed.
8. Miscellaneous. This Agreement shall inure to the benefit of
and be binding upon the Bank and Sepracor and their respective successors and
assigns, and the term "Bank" shall be deemed to include any other holder or
holders of any of the Term Loan. In case any provision in this Agreement shall
be invalid, illegal or unenforceable, the validity, legality and enforceability
of the remaining provisions shall not in any way be affected or impaired
thereby. This Agreement may be executed in any number of counterparts and by the
different parties hereto on separate counterparts, each of which shall be an
original, but all of which together shall constitute one instrument. Sepracor
agrees, as principal obligor and not as guarantor, to pay to the Bank forthwith
upon demand in funds immediately available to the Bank, all reasonable costs and
expenses (including court costs and reasonable attorneys' fees and
disbursements) incurred or expended by the Bank in connection with the
enforcement of this Agreement. Terms used herein but not defined herein shall
have the meanings assigned to them in the Credit Agreement.
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9. Governing Law; Jurisdiction; Waiver of Jury Trial. This
Agreement, including the validity hereof and the rights and obligations of the
parties hereunder, shall be construed in accordance with and governed by the
laws of the Commonwealth of Massachusetts. Sepracor, to the extent that it may
lawfully do so, hereby consents to the jurisdiction of the courts of the
Commonwealth of Massachusetts and the United States District Court for the
District of Massachusetts, as well as to the jurisdiction of all courts to which
an appeal may be taken from such courts, for the purpose of any suit, action or
other proceeding arising out of any of its obligations hereunder or with respect
to the transactions contemplated hereby, and expressly waives any and all
objections it may have as to venue in any such courts. Sepracor further agrees
that a summons and complaint commencing an action or proceeding in any of such
courts shall be properly served and shall confer personal jurisdiction if served
personally or by certified mail to it at its address provided in Section 7 of
this Agreement or as otherwise provided under the laws of the Commonwealth of
Massachusetts. SEPRACOR IRREVOCABLY WAIVES ALL RIGHT TO A TRIAL BY JURY IN ANY
SUIT, ACTION OR OTHER PROCEEDING INSTITUTED BY OR AGAINST IT IN RESPECT OF ITS
OBLIGATIONS HEREUNDER OR THE TRANSACTIONS CONTEMPLATED HEREBY.
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IN WITNESS WHEREOF, the parties have executed this Agreement as a
sealed instrument as of the date first above written.
SEPRACOR INC.
By /s/ Xxxxxx X. Xxxxxxx
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Name: Xxxxxx X. Xxxxxxx
Title: Senior Vice President
The foregoing Agreement is
hereby accepted:
FLEET NATIONAL BANK
By /s/ Xxxxxxxx X. Xxxxxxx
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Name: Xxxxxxxx X. Xxxxxxx
Title: Vice President
