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EXHIBIT 10.50
NOTE PURCHASE AGREEMENT
NOTE PURCHASE AGREEMENT (this "Agreement"), dated as of February 27,
1997, by and between Genzyme Corporation, a Massachusetts corporation (the
"COMPANY"), and Credit Suisse First Boston (Hong Kong) Ltd.
(the "PURCHASER").
The Company wishes to sell and the Purchaser wishes to buy, subject to
the terms and conditions set forth in this Agreement, a convertible note of the
Company in the principal amount of $13,000,000, having the terms and conditions
and in the form attached hereto as EXHIBIT A (the "NOTE"), in reliance on the
exemption from securities registration afforded by the provisions of Regulation
D under the Securities Act of 1993, as amended (the "SECURITIES ACT"). The Note
will be convertible, in accordance with its terms, into shares (the "CONVERSION
SHARES") of the Company's Tissue Repair Division Common Stock, $.01 par value
(the "GTR STOCK").
The parties hereto agree as follows:
1. PURCHASE AND SALE OF NOTE.
1.1 AGREEMENT TO PURCHASE AND SELL. Upon the terms and subject to the
conditions set forth herein, the Company agrees to sell at the Closing (as
defined below), and the Purchaser agrees to purchase, the Note at the purchase
price in the amount of thirteen million dollars ($13,000,000) (the "PURCHASE
PRICE").
1.2 CLOSING. Subject to the satisfaction of the conditions set forth
herein, the closing of the purchase and sale of the Note (the "CLOSING") will be
deemed to occur when this Agreement, and the other Transaction Documents (as
defined below), have been executed and delivered by both the Company and the
Purchaser, and full payment of the Purchase Price has been made by the Purchaser
by wire transfer of same day funds to an account designated by the Company
against delivery by the Company of the duly executed Note.
1.3 FINANCING FEE. The Company will pay to Credit Suisse First Boston
Corporation a financing fee in the amount of four percent (4%) of the Purchase
Price in the same day funds wired to an account designated by Credit Suisse
First Boston Corporation to the Company.
1.4 CERTAIN DEFINITIONS. When used herein (A) "business day" shall
mean any day on which the New York Stock Exchange and commercial banks in the
cities of Boston and New York are open for business and (B) an "affiliate" of a
party shall mean any person or entity controlling, controlled by or under common
control with that party.
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2. REPRESENTATIONS AND WARRANTIES OF THE PURCHASER.
The Purchaser hereby makes the following representations and warranties
to the Company (which shall be true as of the Closing and as of any such later
date as contemplated hereunder) and agrees with the Company that:
2.1 AUTHORIZATION; ENFORCEABILITY. The Purchaser is duly and validly
organized, validly existing and in good standing as a corporation under the laws
of the state of its incorporation with full power and authority to purchase the
Note and to execute and deliver this Agreement. This Agreement constitutes the
Purchaser's valid and legally binding obligation, enforceable in accordance with
its terms, except as such enforcement may be limited by (i) applicable
bankruptcy, insolvency, reorganization or other laws of general application
relating to or affecting the enforcement of creditors' rights generally and (ii)
general principles of equity.
2.2 ACCREDITED INVESTOR; INVESTMENT INTENT. The Purchaser is an
accredited investor, as defined in Rule 501 of Regulation D under the Securities
Act. The Purchaser is acquiring the Note solely for the Purchaser's own account
for investment purposes as a principal and not with a view to the public resale
or distribution of all or any part thereof; provided, however, that in making
such representation, the Purchaser does not agree to hold the Note for any
minimum or specific term and reserves the right to sell, transfer or otherwise
dispose of the Note at any time in accordance with the provisions of this
Agreement and with Federal and state securities laws applicable to such sale,
transfer or disposition.
2.3 INFORMATION. The Company has provided the Purchaser with certain
information regarding the Company and has granted to the Purchaser the
opportunity to ask questions of and receive answers from representatives of the
Company, its officers, directors, employees and agents concerning the terms and
conditions of the purchase of sale of the Note hereunder, and the Company and
its business and prospects.
2.4 LIMITATIONS ON DISPOSITION. The Purchaser acknowledges that the
Note is a "restricted security" under the Securities Act and that under the
Securities Act and applicable rules and regulations neither the Note nor any
interest therein may be transferred or resold without registration under the
Securities Act or unless pursuant to an exemption therefrom. The Purchaser
agrees not to sell, transfer or otherwise dispose of the Note or any interest
therein unless and until:
(a) there is then in effect a registration statement under the
Securities Act covering such proposed disposition and such disposition
is made in accordance with such registration statement; or
(b) (i) the Purchaser shall have notified the Company in advance of
the proposed disposition, and (ii) if reasonably requested by the
Company, Purchaser shall have furnished the Company with an opinion of
counsel, reasonably satisfactory to the Company, that such disposition
will not require registration of Note under the Securities Act. It is
agreed that no opinion of counsel will be required for the transfer
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of the Note or any interest therein to an affiliate of the Purchaser or
with respect to the sale thereof made pursuant to Rule 144 under the
Securities Act ("Rule 144"); PROVIDED, HOWEVER, that prior to any sale
made pursuant to Rule 144, the Purchaser will furnish to the Company,
upon its request, a certificate setting forth such representations as
are customarily given by selling shareholder to the issuer in a Rule
144 transaction.
2.5 LEGEND. The Purchaser understands that the Note shall bear at
issuance the following legend.
"This Note has not been registered under the Securities Act of
1933, as amended (the "Securities Act"), and may not be sold or
transferred in the absence of an effective registration statement
under the Securities Act or an exemption from the registration
requirements thereunder."
The legend set forth above shall be removed and the Company shall
issue a new Note without such legend to the holder of the Note if (i) the sale
of the Note is registered under the Securities Act, or (ii) the Note can be
sold publicly pursuant Rule 144(k) (or any successor provision).
3. REPRESENTATIONS AND WARRANTIES OF THE COMPANY.
The Company hereby makes the following representations and warranties
to the Purchaser (which shall be true as of the Closing and as of any such later
date as contemplated hereunder) and agrees with the Purchaser that:
3.1 ORGANIZATION, GOOD STANDING AND QUALIFICATION. Each of the
Company and its subsidiaries is a corporation duly organized, validly existing
and in good standing under the laws of the jurisdiction of its incorporation and
has all requisite corporate power and authority to carry on its business as now
conducted. Each of the Company and its subsidiaries is duly qualified to
transact business and is in good standing in each jurisdiction in which the
failure so to qualify would have a material adverse effect on the consolidated
business or financial condition of the Company and its subsidiaries take as a
whole. Each of the Company and its subsidiaries is not the subject of any
pending or, to its knowledge, threatened investigation or administrative or
legal proceeding by the Internal Revenue Service, the taxing authorities of any
state or local jurisdiction, the Securities and Exchange Commission (the
"Commission") or any state securities commission or other governmental entity
which could reasonably be expected to have a material adverse effect on the
consolidated business or financial condition of the Company. The term
"subsidiaries" means corporations in which the Company has an equity interest of
greater than 50%.
3.2 AUTHORIZATION; CONSENTS. All corporate action on the part of the
Company by its officers, directors and shareholders necessary for (A) the
authorization, execution and delivery of, and the performance by the Company of
its obligation under, (i) this Agreement, (ii) the Note, (iii) the Registration
Rights Agreement (as defined below) and (iv) all other agreements, documents,
certificates or other instruments delivered by the Company at the
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Closing (the instruments described in (i), (ii), (iii) and (iv) being
collectively referred herein as the "TRANSACTIONS DOCUMENTS"), and (B) except to
the extent that the approval described in Section 3(i)(ii) of the Note may be
required by the NASD or other association or exchange on which the GTR Stock is
quoted or listed, the authorization, reservation for issuance, and issuance and
delivery of the Conversion Shares upon conversion of the Note has been taken.
The Transaction Documents constitute valid and legally binding obligations of
the Company, enforceable in accordance with their respective terms, except as
other such enforcement may be limited by (i) applicable bankruptcy, insolvency,
reorganization or other laws of general application relating to or affecting the
enforcement of creditors' rights generally and (ii) general principles of
equity. Except as otherwise provided in the Transaction Documents, the Company
has obtained all governmental or regulatory consents and approvals required for
it to execute, deliver and perform its obligations under the Transaction
Documents.
3.3 DISCLOSURE DOCUMENTS; MATERIAL AGREEMENTS; OTHER INFORMATION. The
Company has filed with the Commission: (i) the Company's Annual Report on Form
10-K for the year ended December 31, 1995, (ii) Quarterly Reports on form 10-Q
for the quarters ended March 31, June 30 and September 30, 1996, (iii) all
Current Reports on Form 8-K required to be filed with the Commission since
December 31, 1995 and (iv) the Company's definitive Proxy Statement for its 1996
Annual Meeting of Shareholders (collectively, the "DISCLOSURE DOCUMENTS"). The
Company is not aware of any event that would require the filing of a Form 8-K
after the Closing, except with regard to matters disclosed in the press release,
dated February 3, 1997 (the "Press Release"), attached hereto as Exhibit 3.3.
Each Disclosure Document, as of the date of the filing thereof with the
Commission, conformed in all material respects to the requirements of the
Securities Exchange Act of 1934, as amended (the "EXCHANGE ACT"), and the rules
and regulations thereunder, and, as of the date of such filing, such Disclosure
Document did not contain an untrue statement of material fact or omit to state a
material fact required to be stated therein or necessary to make the statements
therein, in light of the circumstances under which they were made, not
misleading. All material agreements required to be filed as exhibits to the
Disclosure Documents have been filed as required; neither the Company nor any of
its subsidiaries is in breach of any such agreement where such breach is
reasonably likely to have a material adverse effect on the business or financial
condition of the Company. The information provided to the Purchaser as described
in paragraph 2.3 above does not contain an untrue statement of material fact or
omit to state a material fact required to be stated therein or necessary to make
the statements therein, in light of the circumstances under which they were
made, not misleading.
3.4 CAPITALIZATION. The capitalization of the Company as of December
31, 1996 is as set forth on EXHIBIT 3.4 hereto.
3.5 VALID ISSUANCE. The Note, when issued, sold and delivered in
accordance with the terms hereof, and the Conversion Shares and the Interest
Payment Shares (as defined in the Note), when issued in accordance with the
terms of the Note, will be duly and validly issued, fully paid and
nonassessable, free and clear of any liens, claims, preemptive rights or
encumbrances imposed by or through the Company and, based in part upon the
representations of the Purchaser in this Agreement, will be issued in compliance
with all applicable Federal and state securities laws.
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3.6 NO CONFLICT WITH OTHER INSTRUMENTS. Neither the Company nor any
of its subsidiaries is in violation or default of any provisions of its
Certificate of Incorporation or Bylaws as amended and in effect on and as of the
date hereof or of any material provision of any material instrument or contract
to which it is a party or by which it is bound, or of any provision of any
Federal or state judgment, writ, decree, order, statute, rule or governmental
regulation applicable to the Company, which would have a material adverse affect
on the Company's consolidated business or financial condition. The execution,
delivery and performance of the Note, this Agreement and the other Transaction
Documents, and the consummation of the transactions contemplated hereby and
thereby, will not result in any such violation or be in conflict with or
constitute, with or without the passage of time and giving of notice, either a
default under any such provision, instrument or contract or an event which
results in the creation of any lien, charge or encumbrance upon any assets of
the Company or of any of its subsidiaries.
3.7 FINANCIAL CONDITION; TAXES; LITIGATION.
3.7.1 The Company's financial condition is, in all material
respects, as described in the Disclosure Documents, except for changes in the
ordinary course of business and normal year-end adjustments that are not, in the
aggregate, materially adverse to the Company. Except as otherwise described in
the Disclosure Documents as of the date hereof or in the Press Release, there
have been no material adverse changes to the Company's consolidated business or
financial condition since September 30, 1996.
3.7.2 The financial statements contained in the Disclosure
Documents have been prepared with generally accepted accounting principles
consistently applied and fairly present the consolidated financial condition of
the Company as of the dates of the balance sheets included therein and the
consolidated results of its operations and cash flows for the period then ended
(except as may be indicated therein). Without limitation the foregoing, there
are no material liabilities, contingent or actual, that are required to be
disclosed in the Disclosure Documents that are not so disclosed.
3.7.3 The Company has filed all tax returns required to be
filed by it and paid all taxes which are due, except for taxes which it
reasonably disputes or which could not reasonably be expected to have a material
adverse effect on the consolidated business or financial condition of the
Company.
3.7.4 Except as set forth in Schedule 3.7.4, there is no
material claim, litigation or administrative proceeding pending, or to the best
of the Company's knowledge, threatened, against the Company or any of its
subsidiaries, or against any officer, director or employee of the Company or any
such subsidiary in connection with such person's employment therewith. Neither
the Company nor any of its subsidiaries is a party to or subject to the
provisions of, any order, writ, injunction, judgment or decree of any court or
government agency or instrumentally which could reasonably be expected to have a
material adverse effect on the consolidated business or financial condition of
the Company.
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3.8 REPORTING COMPANY; FORM S-3. The Company is subject to the
reporting requirements of the Exchange Act, has a class of securities registered
under Section 12 of the Exchange Act, and has filed all reports required
thereby. The Company is eligible to register for resale shares of its GTR Stock
on a registration statement on Form S-3 under the Securities Act.
3.9 INTELLECTUAL PROPERTY. The Company and its subsidiaries own,
possess or can acquire on reasonable terms adequate trademarks, trade names and
other rights to inventions, know-how, patents, copyrights, confidential
information and other intellectual property rights necessary to conduct business
now operated by them, or presently employed by them, and have not received any
notice of infringement of or conflict with asserted rights of others with
respect to any such rights that, if determined adversely of the Company or any
of its subsidiaries, would individually or in the aggregate have a material
adverse effect on the consolidated business or financial condition of the
Company.
3.10 REGISTRATION RIGHTS; RIGHTS OF PARTICIPATION. Except as
described on Schedule 3.10 hereto, (A) the Company has not granted or agreed to
grant to any person or entity any rights (including "piggy back" registration
rights) to have any securities of the Company registered with the Commission or
any other governmental authority and (B) no person or entity, including, but no
limited to, current or former shareholders of the Company, underwriters,
brokers, agents or other third parties, has any right of first refusal,
preemptive right, right of participation, or any similar right to participate in
the transactions contemplated by this Agreement or any other Transaction
Document which has not been waived.
3.11 TRADING ON NASDAQ. The GTR Stock in authorized for quotation on
the Nasdaq National Market, and trading in the GTR Stock on Nasdaq has not been
suspended. Shareholder approval for the issuance of the Note is not required
under NASD Rule 4460.
3.12 SOLICITATION. Neither the Company nor any of its subsidiaries or
affiliates, nor any person acting on its or their behalf, (i) has engaged in any
form of general solicitation or general advertising (within the meaning of
Regulation D under the Securities Act) in connection with the offer or sale of
the Note or (ii) has, directly or indirectly, made any offers or sales of any
security or solicited any offers to buy any security, under any circumstances
that would require registration of the Note under the Securities Act.
3.13 OTHER FEES. The Company is not obligated to pay any compensation
or other fee, cost or related expenditure to any underwriter, broker, agent or
other representative other than the Placement Agent in connection with the
transactions contemplated hereby.
4. COVENANTS OF THE COMPANY.
4.1 CORPORATE EXISTENCE. The Company shall, during the term of the
Registration Rights Agreement (as defined in the Note), so long as the Purchaser
or any affiliate of the Purchaser beneficially owns the Note (or any interest
therein), any Conversion Shares or Interest Payment Shares (but in no event
longer than three (3) years from the date of Closing), maintain its corporate
existence in good standing and shall pay all its taxes when due except
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for taxes which the Company reasonably disputes or which could not reasonably be
expected to have a materially adverse change on the consolidated business or
financial condition for the Company.
4.2 PROVISION OF INFORMATION. The Company shall provide the Purchaser
with copies of its annual reports on Form 10-K, quarterly reports on Form 10-Q,
current reports on Form 8-K and proxy statements, in each such case promptly
after filing thereof with the Commission, until the conversion or redemption of
the Note in its entirety.
4.3 BLUE-SKY QUALIFICATION. The Company shall, on or before the
Closing, take such action as is necessary to qualify the Note for sale under
applicable state or "blue sky" laws or obtain an exemption therefrom, and shall
provide evidence of any such action to the Purchaser.
4.4 REPORTING STATUS. As long as the Purchaser or any affiliate of
the Purchaser beneficially owns the Note, or any interest therein, or any
Conversion Shares or Interest Payment Shares, and until the date on which any of
the foregoing may be sold to the public pursuant to Rule 144(k) (or any
successor rule or regulation), (i) the Company shall timely file with the
Commission all reports required to be so filed pursuant to the Exchange Act and
(ii) the Company shall not terminate its status as an issuer required by the
Exchange Act to file reports thereunder even if the Exchange Act or the rules
and regulations thereunder would permit such termination.
4.5 USE OF PROCEEDS. The Company shall use the proceeds from the sale
of the Note for general corporate purposes and shall not use such proceeds to
make a loan to or an investment in any other corporation, partnership or other
entity.
4.6 LISTING. The Company shall promptly secure the designation and
quotation of the Conversion Shares on the Nasdaq National Market and shall use
its best efforts to maintain the listing of the shares of GTR Stock on the
Nasdaq National Market or another national securities exchange or quotation
system.
4.7 USE OF PURCHASER NAME. The Company shall not use, directly or
indirectly, the Purchaser's name in any advertisement, announcement, press
release or other similar communication unless it has received the prior written
consent of the Purchaser for the specific use contemplated.
4.8 COMPANY'S INSTRUCTIONS TO TRANSFER AGENT. The Company shall
instruct its transfer agent (the "Transfer Agent") (i) to convert the Note into
GTR Stock in accordance with the terms of the Note upon receipt of a valid
Conversion Notice (as defined in the Note) from the Purchaser, (ii) to issue
certificates representing the number of shares of GTR Stock specified in such
Conversion Notice, free to any restrictive legend, in the name of the Purchaser
or its nominee and (iii) to deliver such certificates to the Purchaser no later
than the close of business on the third (3rd) business day following the
Conversion Date (as defined in the Note). The Company represents to and agrees
with the Purchaser that it will not give any instruction to the Transfer Agent
that will conflict with the foregoing instruction or otherwise
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restrict the Purchaser's right to convert the Note or receive Conversion Shares
in accordance with the terms of the Note, the Registration Rights Agreement and
this Agreement, respectively. In the event the Company's relationship with the
Transfer Agent should be terminated for any reason, the Transfer Agent shall
continue acting as transfer agent pursuant to the terms hereof until such time
that successor transfer agent is appointed by the Company and executes and
agrees to be bound by the terms hereof.
5. CONDITIONS TO CLOSING.
5.1 CONDITIONS TO PURCHASER'S OBLIGATIONS AT CLOSING. The Purchaser's
obligations at the Closing, including without limitation its obligation to
purchase the Note, are conditioned upon the fulfillment of each of the following
events:
(a) the representations and warranties of the Company set forth
in this Agreement shall be true and correct in all material
respects as of the date of the Closing as if made on such
date;
(b) the Company shall have complied with or performed all of
the agreements, obligations and conditions set forth in
this Agreement that are required to be complied with or
performed by the Company on or before the Closing;
(c) the Company shall have delivered to the Purchaser a
certificate, signed by an officer of the Company,
certifying that the conditions specified in paragraphs (a)
and (b) above have been fulfilled;
(d) the Company shall have delivered to the Purchaser an
opinion of counsel for the Company, dated as of the date of
Closing, in the form attached as EXHIBIT 5.1;
(e) the Company shall have executed and delivered the
Registration Rights Agreement;
(f) the GTR Stock shall be listed and traded on the Nasdaq
National Market;
(g) there shall have been no material adverse changes in the
Company's consolidated business or financial condition
since September 30, 1996 which have not been disclosed in
the Disclosure Documents or the Press Release; and
(h) the Company shall have authorized and reserved for issuance
upon conversion of the Note a reasonably sufficient number
of shares of GTR Stock to effect conversion of the entire
principal balance of the Note.
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5.2 CONDITIONS TO COMPANY'S OBLIGATIONS AT CLOSING. The Company's
obligations at the Closing are conditioned upon the fulfillment of each of the
following events;
(a) the representatives and warranties of the Purchaser shall
be true and correct in all material respects of the date of
the Closing as if made on such date;
(b) the Purchaser shall have complied with or performed all of
the agreements, obligations and conditions set forth in
this Agreement that are required to be complied with or
performed by the Purchaser on or before the Closing; and
(c) the Purchaser shall have delivered to the Company a letter,
dated as of the date of the Closing and addressed to
Coopers & Xxxxxxx, L.L.P., describing the factors on which
a determination by a holder of the Note to accept cash or
securities under the Note would be based.
6. INDEMNIFICATION.
The Company agrees to indemnify and hold harmless the Purchaser and its
officers, directors, employees and agents, and each person who controls the
Purchaser within the meaning of the Securities Act or the Exchange Act (each, a
"Purchaser Indemnified Party") against any losses, claims, damages, liabilities
or reasonable out-of-pocket expenses (including the reasonable fees and
disbursements of counsel) as incurred, joint or several, to which it, they or
any of them, may become subject and not otherwise reimbursed, arising out of or
in connection with the breach by the Company of any of its representations,
warranties or covenants made herein.
The Purchaser agrees to indemnify and hold harmless the Company and its
officers, directors and agents, and each person who controls the Company within
the meaning of the Securities Act or the Exchange Act (each, a "Company
Indemnified Party") (a Purchaser Indemnified Party and a Company Indemnified
Party are each hereinafter referred to as an "Indemnified Party') against any
losses, claims, damages, liabilities or expenses (including the fees and
disbursements of counsel) as incurred, joint or several, to which it, they or
any of them, may become subject and not otherwise reimbursed, arising out of or
in connection with the breach by the Purchaser of any of its representatives,
warranties or covenants made herein.
Promptly after receipt by an Indemnified Party of notice of the
commencement of any action pursuant to which indemnification may be sought
hereunder, such Indemnified Party will, if a claim in respect thereof is to be
made against the other party (the "Indemnifying Party"), deliver to the
Indemnifying Party a written notice of the commencement thereof and the
Indemnifying Party shall have the right to participate in and to assume the
defense thereof with counsel reasonably selected by the Indemnifying Party,
provided, however, that an Indemnified Party shall have the right to retain its
own counsel, with the reasonably incurred fees and expenses of such counsel to
be paid by the Company, if representation of such Indemnified Party by the
counsel retained by the Indemnifying Party would be inappropriate
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due to actual or potential conflicts of interest under applicable standards of
professional conduct between such Indemnified Party and any other party
represented by such counsel in such proceeding. The failure to deliver written
notice to the Indemnifying Party within a reasonable time of the commencement of
any such action will not relieve the Indemnifying Party of any of its
obligations hereunder with respect to such action except to the extent such
failure is prejudicial to the Indemnifying Party's ability to defend any such
action.
No Indemnifying Party shall, without the prior written consent of the
Indemnified Party, effect any settlement of pending or threatened action in
respect of which an Indemnified Party is or could have been a party and
indemnity could have been sought hereunder by such Indemnified Party unless such
settlement includes an unconditional release of such Indemnified Party from all
liability on any claims that are the subject matter of such action. An
Indemnifying Party will not be liable for any settlement of any action or claim
effected without its written consent.
7. MISCELLANEOUS.
7.1 SURVIVAL; SEVERABILITY. The representation, warranties, covenants
and indemnities made by the parties herein shall survive the Closing
notwithstanding any due diligence investigation made by or on behalf of the
party seeking to rely thereon. In the event that any provision of this Agreement
becomes or is declared by a court of competent jurisdiction to be illegal,
unenforceable or void, this Agreement shall continue in full force and effect
without said provision; provided that no such severability shall be effective if
it materially changes the economic benefit of this Agreement to either party.
7.2 SUCCESSORS AND ASSIGNS. The terms and conditions of this
Agreement shall inure to the benefit of and be binding upon the respective
successors and assigns of the parties. Nothing in this Agreement, express or
implied, is intended to confer upon any party other than the parties hereto or
their respective successors and assigns any rights, remedies, obligations or
liabilities under or by reason of this Agreement, except as expressly provided
in this Agreement. The Purchaser may assign its rights hereunder, in connection
with any private sale or transfer of the Note, as long as, as a condition
precedent to such transfer, the transferee executes an acknowledgment agreeing
to be bound by the applicable provisions of this Agreement, in which case the
term "Purchaser" shall be deemed to refer to such transferee as though such
transferee were an original signatory hereto.
7.3 GOVERNING LAW. This Agreement shall be governed by and construed
under the laws of the State of New York without regard to the conflict of laws
provisions hereof.
7.4 COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original, and all of which
together shall constitute one and the same instrument.
7.5 HEADINGS. The headings used in this Agreement are used for
convenience only and are not to be considered in construing or interpreting this
Agreement.
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7.6 NOTICES. Any notice, demand or request required or permitted to
be given by the Company or the Purchaser pursuant to the terms of this Agreement
shall be in writing and shall be deemed given (i) when delivered personally or
by verifiable facsimile transmission (with a hard copy to follow) on or before
5:00 p.m., eastern time, on a business day or, if such day is not a business
day, on the next succeeding business day, (ii) on the next business day after
timely delivery to an overnight courier and (iii) on the third business day
after deposit in the U.S. mail (certified or registered mail, return receipt
requested, postage prepaid), addressed to the parties as follows:
If to the Company:
Genzyme Corporation
Xxx Xxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxxxxxxx 00000
Attention: Chief Legal Counsel
Fax: 000-000-0000
If to the Purchaser:
Credit Suisse First Boston (Hong Kong) Ltd.
Xxx Xxxxxxxx Xxxxxx, 00xx Xxxxx
Xxxx Xxxx
Attention: Xxxxxxx Xxxxxxxx
Fax: 000-0000-0000
With a copy to:
Credit Suisse First Boston Corporation
00 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx X. Xxxxxx, Esq.
Fax: 000-000-0000
With a copy to:
Credit Suisse First Boston Corporation
00 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxxx/Xxxx XxXxxx
Fax: 000-000-0000
7.7 EXPENSES. Each of the Company and the Purchaser shall pay all
costs and expenses that it incurs in connection with the negotiation, execution,
delivery and performance of this Agreement.
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7.8 ENTIRE AGREEMENT; AMENDMENTS. This Agreement, the Note and the
other Transaction Documents constitute the entire agreement between the parties
with regard to the subject matter hereof and thereof, superseding all prior
agreements or understandings, whether written or oral, between the parties.
Except as expressly provided herein, neither this Agreement nor any term hereof
may be amended except pursuant to a written instrument executed by the Company
and the Purchaser, and no provision hereof may be waived other than by a written
instrument executed by the Company and the Purchaser, and no provision hereof
may be waived other than by a written instrument signed by the party against
whom enforcement of any such waiver is sought.
7.9 ARBITRATION. Any controversy or claim arising out of or related
to this Agreement or the breach thereof, shall be settled by binding arbitration
in New York City in accordance with the Commercial Arbitration Rules of the
American Arbitration Association ("AAA"). A proceeding shall be commenced upon
written demand by one party to the other. The arbitrator(s) shall enter a
judgment by default against any third party which fails or refuses to appear in
any properly noticed arbitration proceeding. The proceeding shall be conducted
by one (1) arbitrator, unless the amount alleged to be in dispute exceeds two
hundred fifty thousand dollars ($250,000), in which case three (3) arbitrators
shall preside. The arbitrator(s) will be chosen by the parties from a list
provided by the AAA, and if they are unable to agree within ten (10) days, the
AAA shall select the arbitrator(s). The arbitrators must be experts in
securities law and financial transactions. The arbitrators shall assess costs
and expenses of the arbitration, including all attorneys' and experts' fees, as
the arbitrators believe it is appropriate in light of the merits of parties'
respective positions in the issues in dispute. Each party submits irrevocably to
the jurisdiction of any state court sitting in New York County, New York or to
the United States District Court for the Southern District of New York for
purposes of enforcement of any discovery, order, judgment or award in connection
with such arbitration. The award of the arbitrator(s) shall be final and binding
upon the parties and may be enforced in any court having jurisdiction.
IN WITNESS WHEREOF, the undersigned have executed this Agreement as of
the date first-above written.
GENZYME CORPORATION
By: /s/ Xxxxx X. XxXxxxxxx
----------------------------------------
Name: Xxxxx X. XxXxxxxxx
Title: Executive Vice President, Finance
and Chief Financial Officer
CREDIT SUISSE FIRST BOSTON (HONG KONG) LTD.
By: /s/ Xxxxxxx X. Xxxxxxxx
----------------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Director
