Certain confidential information contained in this document,
marked by brackets, has been omitted and filed separately with
the Securities and Exchange Commission pursuant to Rule 24b-2 of
the Securities Exchange Act of 1934, as amended.
Exhibit 10.67
LOAN AGREEMENT
This Loan Agreement is dated and entered into as of May 5,
1999 (the "Effective Date") by and between CV Therapeutics, Inc.,
a Delaware corporation ("Borrower"), and Quintiles Transnational
Corp., a North Carolina corporation ("Lender").
Whereas, Borrower and Innovex Inc., a wholly-owned
subsidiary of Lender ("Innovex"), are parties to a Sales and
Marketing Services Agreement (the "Services Agreement"), dated as
of the same date hereof; and
Whereas, in connection with the Services Agreement, Lender
is willing to extend certain credit facilities to Borrower,
subject to and upon the terms and conditions of this Agreement;
Now, Therefore, for good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged by the
parties, the parties hereby agree as follows:
ARTICLE I
DEFINITIONS
1.01 Definitions. Capitalized terms used but not defined in the
text of this Agreement shall have the meanings ascribed to them
on Exhibit A attached hereto and incorporated herein by
reference.
ARTICLE II
AMOUNT AND TERMS OF LOAN
2.01 Advances.
(a) Subject to and upon the terms and conditions herein set
forth, including without limitation Section 2.01(c) hereof,
Lender agrees, at any time and from time to time from NDA Filing,
or such earlier date as mutually agreed upon by the parties, to
and including the earlier to occur of (i) Product Launch, or (ii)
December 31, 2003(or in the case of this clause (ii), such later date as may
be established in connection with a Revised Launch Date under
Section 14.3 of the Services Agreement), to make advances ("Pre-
Approval Advances") to Borrower at such times and in such amounts
as Borrower shall request pursuant to this Agreement, up to an
aggregate principal amount of Ten Million Dollars ($10,000,000)
(the "Pre-Approval Commitment"). If at any time or for any
reason, the aggregate outstanding principal amount of the Pre-
Approval Advances is greater than the Pre-Approval Commitment,
Borrower shall immediately pay to Lender in cash the amount of
such excess. The availability of the Pre-Approval Commitment
shall not be on a revolving basis and, accordingly, once the Pre-
Approval Advances or any portion thereof have been borrowed and
repaid by Borrower, such amounts may not be reborrowed.
(b) Subject to and upon the terms and conditions herein set
forth, Lender agrees that it shall make up to four advances (each
a "First Year Sales Advance") to Borrower at such times and in
such amounts as Borrower shall request pursuant to this
Agreement, during the period beginning on the last day of the
first Sales Quarter (as defined in the Services Agreement) to and
including the date one hundred eighty (180) days following the
last day of the fourth Sales Quarter (the "First Year
Availability End Date"). The maximum amount of each First Year
Sales Advance shall be determined as of the end of each Sales
Quarter during the First Sales Year (as defined in the Services
Agreement), and shall be an amount equal to (i) the Sales and
Marketing Fee (as defined in the Services Agreement) for such
Sales Quarter, minus (ii) 33% of the Net Sales of the Product (as
defined in the Services Agreement) during such Sales Quarter.
(The total amount of First Year Sales Advances allowed under this
section is referred to as the "First Year Sales Commitment"; the
Pre-Approval Commitment and the First Year Sales Commitment are
sometimes collectively referred to herein as the "Commitments"
and individually as a "Commitment"). If at any time or for any
reason, the aggregate outstanding principal amount of the First
Year Sales Advances is greater than the First Year Sales
Commitment, Borrower shall immediately pay to Lender in cash the
amount of such excess. The availability of the First Year Sales
Commitment shall not be on a revolving basis and, accordingly,
once the First Year Sales Advances or any portion thereof have
been borrowed and repaid by Borrower, they may not be reborrowed.
(Pre-Approval Advances and First Year Sales Advances are
sometimes collectively referred to herein as the "Advances" and
individually as an "Advance.")
(c) Upon the termination of the Services Agreement, the Pre-
Approval Commitment and the First Year Sales Commitment shall
terminate and Lender shall have no further obligation to make Pre-
Approval Advances or First Year Sales Advances. Upon the
delivery by Borrower to Lender of a Pre-Approval Termination
Notice (as defined in the Security Agreement), the Pre-Approval
Commitment (but not the First Year Sales Commitment) shall
terminate and Lender shall have no further obligation to make Pre-
Approval Advances.
(d) Each Advance shall be a principal amount of a loan,
evidenced by the respective Note referenced below.
2.02 Use of Proceeds.
(a) The Pre-Approval Advances shall be used solely (i) to pay
invoices covering Pre-Approval Marketing Activities and/or Pre-
Approval Marketing Expenses (as defined in the Services
Agreement), which are delivered by Innovex to Borrower and
payable after NDA Filing (ii) to pay invoices covering Pre-
Approval Marketing Activities and/or Pre-Approval Marketing
Expenses, which are delivered by Third Parties (as defined in the
Services Agreement) and payable after NDA Filing, as described in
Section 5.2.1 of the Services Agreement; provided, however, that
the aggregate amount of Advances used for the purpose described
in this subsection (ii) shall not exceed the maximum aggregate
amount payable to Third Parties pursuant to the terms of such
Section 5.2.1, and (iii) for working capital and general
corporate purposes; provided, however, that the aggregate amount
of Advances used for the purpose described in this subsection
(iii) shall not exceed the aggregate amount of invoices for Pre-
Approval Marketing Activities and/or Pre-Approval Marketing
Expenses paid by Borrower prior to NDA Filing; and provided,
further, that Advances used for the purpose
described in this subsection (iii) shall not be available at any time
that any amounts due and payable by Borrower to Lender are outstanding.
(Pre-Approval Advances used for the purpose described in the
preceding subsections (ii) and (iii) are sometimes referred to as
"Cash Advances.")
(b) The proceeds from the First Year Sales Advances shall be
used solely to pay Sales and Marketing Fees due to Innovex from
Borrower with respect to the first Sales Year.
2.03 Notices of Advances; Disbursement of Funds.
(a) Whenever Borrower desires to obtain an Advance, Borrower
shall give to Lender and, in the case of Advances described in
Sections 2.02(a)(i) and (b), Innovex, a written notice of the
requested Advance, signed by an officer of Borrower (each a
"Notice of Advance"), and received no later than 3:00 p.m.
Eastern Time three (3) Business Days before the day on which
Borrower desires the Advance to be made. The Notice of Advance
shall specify: (i) a description of the invoice or fee referred
to in Section 2.02 being paid; (ii) the aggregate principal
amount of the Advance to be made; (iii) the date on which
Borrower desires the Advance to be made, which date shall be a
Business Day; (iv) the type of Advance to be made; (v) in the
case of a Cash Advance, an account of Borrower to which the Cash
Advance shall be directed and wire transfer instructions; and
(vi) that Borrower represents and warrants that the conditions
precedent set forth in Section 3.02 have been satisfied. In any
event, the giving of each Notice of Advance shall constitute a
representation and warranty by Borrower to Lender that the
conditions precedent set forth in Section 3.02 have been
satisfied.
(b) Whenever Borrower desires to obtain a Cash Advance, Lender
shall make available to Borrower, at an account of Borrower
specified to Lender by an officer of Borrower, no later than 2:00
p.m. Eastern Time on the date specified in the Notice of Advance
for such Cash Advance, the aggregate amount of such requested
Cash Advance. Each Notice of Advance requesting a Cash Advance
shall be irrevocable when sent by Borrower.
2.04 Advances Made. On the date specified in each Notice of
Advance for Pre-Approval Advances (other than for Cash Advances)
and First Year Sales Advances, an Advance shall be made under the
applicable Note (as defined below) and the applicable invoice for
Pre-Approval Marketing Activities and/or Pre-Approval Marketing
Expenses, or the applicable Sales and Marketing Fee, as the case
may be, shall be paid in the amount of the Advance (all without
the necessity of the actual transfer of funds between Lender and
Borrower). For each Notice of Advance for Cash Advances, an
Advance shall be made under the Pre-Approval Note (as defined
below) at the time the amount of the Cash Advance is made
available to Borrower in accordance with Section 2.03(b).
2.05 Notes. Borrower's obligation to pay the principal of, and
interest on, the Advances made by Lender shall be evidenced by
the following:
(a) For any and all Pre-Approval Advances made by Lender
pursuant to this Loan Agreement, a single promissory note (the
"Pre-Approval Note") duly executed and delivered by Borrower in
the form of Exhibit B attached hereto.
(b) For any and all First Year Sales Advances made by Lender
pursuant to this Loan Agreement, a single promissory note (the
"First Year Sales Note") duly executed and delivered by Borrower
in the form of Exhibit C attached hereto (the Pre-Approval Note
and the First Year Sales Note are sometimes collectively referred
to herein as the "Notes" and individually as a "Note").
(c) All Advances made by Lender to Borrower, and all payments in
respect thereof, shall be recorded by Lender and shall be
endorsed on the grid attached to the appropriate Note. Failure
to make any such notation shall not affect Borrower's obligations
in respect of such Advances.
2.06 Interest and Repayment; Late Payment.
(a) Borrower shall pay the aggregate outstanding principal
balance of, and all accrued interest on, all Pre-Approval
Advances on or before the Pre-Approval Maturity Date.
(b) With respect to each First Year Sales Advance, Borrower
shall pay the entire outstanding principal balance of, and all
accrued interest on, each First Year Sales Advance on the date
which is twenty-four (24) months after the date on which such
First Year Sales Advance was made.
(c) Notwithstanding subsections (a) and (b) above, the aggregate
outstanding principal balance of, and all accrued interest on,
all Advances shall become immediately due and payable to Lender
upon the termination of the Services Agreement by Lender pursuant
to Section 14.2 of the Services Agreement.
(d) Interest on the outstanding principal amount of each Advance
shall accrue and be payable at a rate per annum equal to [*]
percent ([*]%) above the Prime Rate in effect from time to time.
Interest shall be calculated on the basis of a 360-day year for
the actual number of days elapsed. Interest shall be compounded
quarterly.
(e) Any outstanding principal of an Advance or accrued interest
amounts thereon that are not paid when due shall accrue interest
on a daily basis at the lesser of (i) [*] percent ([*]%) above
the Prime Rate in effect from time to time, or (ii) the maximum
rate permitted by law on any amount overdue, such accrual
beginning on the date payment is due and continuing until the
date payment is made in full.
(f) All payments of principal and interest shall be made to
Lender in lawful money of the United States of America in
immediately available funds.
2.07 Conversion.
(a) At any time or from time to time after the occurrence and
during the continuance of an Event of Default, or four hundred
fifty (450) days after NDA Filing, Lender shall have the option
to convert, in whole or in part, the outstanding principal
balance of and all accrued interest on the Pre-Approval Note,
into shares of common stock of Borrower ("Common Stock") in
accordance with the provisions of this Agreement. At any time or
from time to time,
Lender shall have the option to convert, in
whole or in part, the outstanding principal balance of and all
accrued interest on the First Year Sales Note, into shares of
Common Stock in accordance with the provisions of this Agreement.
Notwithstanding the foregoing, in the event that Lender exercises
its conversion rights under this Section 2.07 to convert in part
outstanding principal and interest amounts under the Notes and
such conversion results in Lender owning in excess of twenty
percent (20%) of the outstanding Common Stock, then promptly
following written notice thereof to Lender by Borrower, Lender
will exercise its conversion rights with respect to any remaining
principal and interest under the Notes. The number of shares of
Common Stock into which the Notes may be converted shall be equal
to (i) the total amount of outstanding principal balance and
accrued interest being converted, divided by (ii) the Fair Market
Value as of the Conversion Effective Date (as defined below);
provided, however, that if Lender converts any portion of the
Notes after the occurrence of an Event of Default under Section
7.01 (a) or 7.01(d) hereof and after a notice referred to in
Section 7.02, then the number of shares of Common Stock into
which the Notes may be converted shall be equal to (i) the total
amount of outstanding principal balance and accrued interest
being converted, divided by (ii) the Default Conversion Price as
of the Conversion Effective Date. (Shares issued upon conversion
of the Notes are sometimes referred to herein as the "Conversion
Shares.") Promptly following Lender's written request, Borrower
will inform Lender in writing of the percentage of the
outstanding Common Stock owned by Lender. Notwithstanding the
foregoing, Lender may not convert any or all of the outstanding
principal balance of and accrued interest on the Notes within
twenty (20) days of any sale of Common Stock by Lender or its
Affiliates, provided that this twenty (20) day waiting period
shall not apply to the conversion of the Notes after the
occurrence and during the continuance of an Event of Default
under Section 7.01(a) or 7.01(d) hereof or an Event of Default
under Section 7.01(g) or 7.01(h).
(b) Lender must give written notice to Borrower of its intent to
convert the Notes into Conversion Shares. Such notice must state
(i) the amount of the outstanding principal and interest under
the Notes to be converted, (ii) the name or names in which the
certificate(s) for the Conversion Shares are to be issued, and
(iii) the date upon which such conversion shall be effective,
which shall be at least five (5) days after the date on which
such notice is given (the "Conversion Effective Date"); provided,
however, that if Borrower irrevocably pays and satisfies prior to
the Conversion Effective Date the amount of the outstanding
principal and interest to be converted pursuant to the notice,
then Lender's right to convert such principal and interest into
Common Stock shall terminate. Notwithstanding anything to the
contrary in Section 2.07(a) above, if such notice of conversion
is given after the occurrence and during the continuance of an
Event of Default, such notice shall remain valid and such
conversion shall remain effective if thereafter such Event of
Default is not continuing. Promptly upon delivery of such
notice, Borrower shall inform Lender of the aggregate percentage
of Borrower's capital stock Lender will hold after such
conversion.
(c) Upon the Conversion Effective Date, the outstanding
principal and interest under the Notes shall be deemed paid in
the amount of the portion of the Notes converted by Lender.
After the Conversion Effective Date, Borrower shall, as soon as
is practicable, issue and deliver to Lender at its principal
office a certificate or certificates for the number of Conversion
Shares to which Lender is entitled upon such conversion.
(d) Borrower shall at all times reserve and keep available out
of its authorized but unissued shares of Common Stock solely for
the purpose of effecting the conversion of the Notes such number
of its shares of Common Stock as shall from time to time be
sufficient to effect the conversion of the Notes; and if at any
time the number of authorized but unissued shares of Common Stock
shall not be sufficient to effect the conversion of the entire
outstanding principal balance of and accrued interest on the
Notes, in addition to such other remedies as shall be available
to Lender, Borrower shall use its best efforts to take such
corporate action as may, in the opinion of counsel, be necessary
to increase its authorized but unissued shares of Common Stock to
such number of shares as shall be sufficient for such purposes.
(e) Upon conversion of the Notes pursuant to this section, the
Conversion Shares shall be included in the definition of "Shares"
for all purposes of the Stock Purchase Agreement dated as of the
same date hereof, as amended, modified or supplemented from time
to time, between Lender and Borrower.
(f) Any conversion of Notes pursuant to this Section 2.07 shall
be subject to compliance with the Xxxx-Xxxxx-Xxxxxx Antitrust
Improvements Act of 0000 (xxx "XXX Xxx"), together with any other
requirements for governmental consents. If any filing under the
HSR Act is required in order to consummate such conversion, each
of Borrower and Lender shall cooperate and work diligently to
make such filing and obtain the termination or expiration of the
waiting period promptly. In the event of a delay in the
conversion of the Notes by reason of the need to obtain
governmental consents, the number of Conversion Shares to be
issued shall be the same as if the conversion had occurred on the
originally specified Conversion Effective Date (i.e., without any
change by reason of the delay in conversion or any subsequent
change in the market value of the Conversion Shares).
ARTICLE III
CONDITIONS PRECEDENT
3.01 Initial Conditions Precedent. The obligation of Lender to
perform its obligations under this Agreement is subject to the
conditions precedent that Lender shall have received each of the
following executed documents on the date of this Agreement:
(a) The Pre-Approval Note, in the form of Exhibit B attached
hereto;
(b) The First Year Sales Note, in the form of Exhibit C attached
hereto;
(c) A Security Agreement, dated as of the date of this Agreement
between Lender and Borrower (the "Security Agreement"), granting
Lender a first priority, perfected security interest in the
Collateral (as defined in the Security Agreement), as well as
financing statements and other instruments duly filed in each
jurisdiction that Lender deems necessary to establish and perfect
a first priority, perfected security interest created by the
Security Agreement in such Collateral;
(d) Copies of resolutions of the Board of Directors of Borrower
approving this Agreement, the Notes, the Security Agreement and
any other documents required or necessary to consummate the
transactions contemplated in this Loan Agreement (collectively,
the "Loan
Documents") and the Services Agreement, in each case
certified by an appropriate officer of Borrower;
(e) A certificate of the appropriate officers of Borrower
certifying (i) the names and true signatures of the officers of
Borrower authorized to sign the Loan Documents and the Services
Agreement, (ii) that the representations and warranties contained
in Article IV of this Agreement are true and correct as of the
date hereof, and (iii) that no event has occurred and is
continuing, which constitutes an Event of Default (as defined in
Section 7.01 hereof) or would constitute an Event of Default but
for the requirement that notice be given or time elapse or both;
(f) A copy of the Ranolazine License Agreement, and all
amendments thereto, certified as true and correct by an
appropriate officer of Borrower.
(g) A legal opinion of Xxxxxx Godward LLP, counsel for Borrower,
regarding the Loan Documents and the transactions contemplated
thereby; and
(h) Consents required to effectuate the transactions
contemplated by this Agreement from all necessary parties (if
any), including without limitation Xxxxxxxxx & Xxxxx and Biogen,
Inc. or their respective affiliates, and the licensor under the
Ranolazine License Agreement.
3.02 Conditions Precedent to All Advances. The obligation of
Lender to make each Advance shall be subject to the further
conditions precedent that on the date of such Advance:
(a) The representations and warranties contained in Article IV
of this Agreement are true and correct on and as of the date of
such Advance, before and after giving effect to such Advance and
to the application of the proceeds therefrom, as though made on
and as of such date; and
(b) No event has occurred and is continuing, or would result
from such Advance or from the application of the proceeds
therefrom, which constitutes an Event of Default, or would
constitute an Event of Default but for the requirement that
notice be given or time elapse or both or that obligations of
Borrower under the Loan Documents be outstanding as required in
Section 7.01.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
OF BORROWER
Borrower represents and warrants to Lender as follows:
4.01 Corporate Status. Borrower is a corporation duly
incorporated, validly existing and in good standing under the
laws of the State of Delaware, and has all requisite corporate
power and authority to own and use its properties and assets and
to transact the business in which it is currently engaged.
4.02 Corporate Power and Authority. The execution and delivery
by Borrower of the Loan Documents, the performance of the terms
and obligations therein, and the issuance, sale and delivery of
the Common Stock issuable upon conversion of the Notes are each
within Borrower's corporate powers and have been duly authorized
by all necessary corporate action on the part of Borrower. The
Loan Documents, when executed and delivered hereunder, will
constitute valid and legally binding obligations of Borrower
enforceable against Borrower in accordance with their terms,
subject to (i) applicable bankruptcy, insolvency, reorganization,
moratorium or similar laws affecting creditors' rights generally,
and (ii) the effect of general principles of equity, regardless
of whether considered in a proceeding in equity or at law.
4.03 Government Approvals. No authorization, consent, approval
or other action by, and no notice to or filing with, any
governmental authority or regulatory body, or any other party, is
required for the due execution, delivery and performance by
Borrower of the Loan Documents or Services Agreement, where the
failure to obtain any such authorization, consent, approval or
other action or the failure to so notify or file, would have a
material adverse effect on Borrower.
4.04 No Violation. Neither the execution or delivery by Borrower
of the Loan Documents and the Services Agreement, nor the
performance of their respective terms and obligations, will (i)
violate Borrower's charter or bylaws, (ii) constitute a breach or
default under any agreement or instrument to which Borrower is a
party or by which Borrower is bound, which breach or default
would have a material adverse effect on Borrower, (iii) violate
any applicable law, rule or regulation, which violation would
have a material adverse effect on Borrower, or (iv) violate any
order, writ, injunction, decree or judgment of any court or
governmental authority applicable to or binding on the Borrower,
which violation would have a material adverse effect on Borrower.
4.05 Financial Statements; Budget and Projections.
(a) All financial statements contained in the SEC Documents (as
defined in Section 4.07) filed by Borrower with the Securities
and Exchange Commission (the "Commission"), have been prepared in
accordance with generally accepted accounting principles ("GAAP")
consistently applied throughout the periods indicated, except as
may be expressly stated in the notes thereto and, as to the
unaudited financial statements, subject to normal recurring year-
end audit adjustments and the absence of notes thereto. Each
balance sheet fairly presents the financial condition of Borrower
and its subsidiaries as of the date of such balance sheet, and
each statement of operations, of stockholders' equity and of cash
flows, fairly presents the results of operations, the
stockholders' equity and the cash flows of Borrower and its
subsidiaries for the periods then ended, all in accordance with
GAAP.
(b) Since the date of Borrower's most recent filing of financial
statements with the SEC, there has been no material adverse
change in the business, property, assets, operations or financial
condition of Borrower and its subsidiaries.
(c) Borrower has furnished Lender with a summary of Borrower's [
* ] for its fiscal year ending December 31, 1999. Such [ * ],
taken as a whole, are reasonable.
4.06 Litigation. There is no pending, or to Borrower's knowledge
overtly threatened, action, suit, proceeding, arbitration, or
investigation before any court, governmental agency,
instrumentality or arbitrator, which, if determined adversely to
Borrower, could reasonably be expected to materially adversely
affect the business, property, assets, operations or financial
condition of Borrower and its subsidiaries or which purports to
affect the legality, validity or enforceability of the Loan
Documents.
4.07 SEC Filings. Borrower has filed with the Commission on a
timely basis, or received a valid extension of such time of
filing, all forms, reports and documents required to be filed by
it under the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), since November 19, 1996 (such documents
collectively referred to as the "SEC Documents"). As of their
respective dates, the SEC Documents complied in all material
respects with the requirements of the Securities Act of 1933, as
amended (the "Securities Act") and the Exchange Act and the rules
and regulations of the Commission promulgated thereunder, and
none of the SEC Documents, when filed, contained any untrue
statement of a material fact or omitted 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.
4.08 Valid Issuance. Upon Borrower's issuance of any and all
shares of Common Stock upon conversion of the Notes, such shares
of Common Stock shall be duly authorized, validly issued, fully
paid, non-assessable and free and clear of all liens and
encumbrances.
4.09 Compliance with Statutes, etc. Each of Borrower and its
subsidiaries is in compliance with all applicable laws, rules,
regulations and orders of, and all applicable restrictions
imposed by, all governmental bodies, in respect of the conduct of
its business and the ownership of its property, except where the
failure to be in compliance would not have a material adverse
effect on Borrower.
4.10 Tax Returns and Payments. Each of Borrower and its
subsidiaries has filed all federal, state, local, foreign and
other tax returns required to be filed by it and has paid all
taxes and other assessments which have become due pursuant to
such tax returns and all other taxes and assessments which have
become due, except for those contested in good faith and for
which adequate reserves have been established. Each of Borrower
and its subsidiaries has made adequate provisions on its books of
account for all taxes, assessments and governmental charges with
respect to its business, properties and operations for all prior
fiscal years and for the current fiscal year to the date hereof.
No governmental authority has asserted a lien or other claim
against Borrower or any of its subsidiaries with respect to
unpaid taxes which has not been discharged or resolved, which
would have a material adverse effect on Borrower.
4.11 Insurance. Borrower and each of its subsidiaries maintains
insurance on all of its properties with financially sound and
reputable insurance companies against such risks and in such
amounts as are customarily maintained by companies of comparable
size engaged in a similar business.
4.12 No Infringement. To its knowledge, Borrower owns or
possesses rights to use all patents, patent applications,
trademarks, service marks, trade names, copyrights, trade
secrets, licenses and rights with respect to the foregoing which
are required to conduct its business
without any known infringement of the rights of others. No event has
occurred which, to the knowledge of Borrower, permits, or after notice or
lapse of time or both would permit, the revocation or termination
of any such rights, and, to the knowledge of Borrower, neither
Borrower nor any of its subsidiaries is liable to any person or
entity for infringement under applicable law with respect to such
rights. As of the Effective Date, Borrower is not pursuing any
action against any third party for the infringement of Borrower's
patents, patent applications, trademarks, service marks, trade
names, copyrights, trade secrets, or licenses relating to its
business.
4.13 Debt. As of the Effective Date, no Debt is outstanding or
owed by Borrower except the Debt listed on Schedule 4.13. Set
forth on Schedule 4.13 is a list of all amounts of outstanding
Debt of Borrower for borrowed money and the maturity dates
thereof.
4.14 Liens. As of the Effective Date, no lien, mortgage, pledge
or security interest exists upon or with respect to any of
Borrower's properties or assets, and no Lien (as defined in
Section 6.03) exists on or with respect to any of the Collateral
(as defined in the Security Agreement), except in each case as
listed on Schedule 4.14.
ARTICLE V
REPRESENTATIONS AND WARRANTIES OF LENDER
Lender hereby represents and warrants to Borrower as
follows:
5.01 Corporate Status. Lender is a corporation duly
incorporated, validly existing and in good standing under the
laws of the State of North Carolina, and has all requisite
corporate power and authority to own and use its properties and
assets and to transact the business in which it is currently
engaged.
5.02 Corporate Power and Authority. The execution and delivery
by Lender of the Loan Documents, and the performance of the terms
and obligations therein, are each within Lender's corporate
powers, and each has been duly authorized by all necessary
corporate action. The Loan Documents, when executed and
delivered hereunder, will constitute valid and legally binding
obligations of Lender enforceable against Lender in accordance
with their terms, subject to (i) applicable bankruptcy,
insolvency, reorganization, moratorium or similar laws affecting
creditors' rights generally, and (ii) the effect of general
principles of equity, regardless of whether considered in a
proceeding in equity or at law.
5.03 Investment. Lender is acquiring the Notes and the Common
Stock issuable upon conversion of the Notes (collectively, the
"Securities") for investment for Lender's own account, not as a
nominee or agent for investment, and not with a view to, or for
resale in connection with, any distribution or public offering
thereof within the meaning of the Securities Act.
5.04 Securities Not Registered. Lender understands that the
Notes are not, and any Common Stock acquired upon conversion of
the Notes at the time of issuance might not be, registered under
the Securities Act on the ground that the sale provided for in
this Agreement and the issuance of Securities hereunder is exempt
from registration under the Securities Act
pursuant to Section 4(2) thereof, and that Borrower's reliance on such
exemption is predicated on Lender's representations set forth herein.
5.05 Accredited Investor. Lender represents that it is an
"accredited investor" within the meaning of Rule 501 of
Regulation D adopted pursuant to the Securities Act.
5.06 Restricted Securities. Lender understands that the
Securities may not be sold, transferred, or otherwise disposed of
without registration under the Securities Act or an exemption
therefrom, and that in the absence of an effective registration
statement covering the Securities or an available exemption from
registration under the Securities Act, the Securities must be
held indefinitely. Lender is aware that the Securities may not
be sold pursuant to Rule 144 promulgated under the Securities Act
unless all of the conditions of that Rule are met.
5.07 Legend. To the extent applicable, each certificate or other
document evidencing any of the shares of Common Stock issued upon
conversion of the Notes shall be endorsed with the legends
substantially in the form set forth below:
"THE SHARES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND MAY
NOT BE SOLD, TRANSFERRED, PLEDGED, OR HYPOTHECATED
UNLESS AND UNTIL REGISTERED UNDER SUCH ACT, OR UNLESS
THE COMPANY HAS RECEIVED AN OPINION OF COUNSEL OR OTHER
EVIDENCE, SATISFACTORY TO THE COMPANY AND ITS COUNSEL,
THAT SUCH REGISTRATION IS NOT REQUIRED."
"THE SHARES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT
TO CERTAIN RESTRICTIONS ON TRANSFER SET FORTH IN AN
AGREEMENT BETWEEN THE COMPANY AND THE HOLDER HEREOF
DATED ______________, 1999, A COPY OF WHICH IS ON FILE
AT THE COMPANY'S PRINCIPAL OFFICES AND IS AVAILABLE
UPON REQUEST."
5.08 Investment Information.
(a) Lender has been furnished with all the information necessary
to make an informed investment decision. Lender has been given
access to such information relating to Borrower as Lender has
requested.
(b) By reason of Lender's business or financial experience,
Lender has the capacity to make the decision referred to in
subsection (a) above.
ARTICLE VI
COVENANTS OF BORROWER
So long as any or all of the Notes shall remain unpaid or
Lender shall have any Commitment hereunder, Borrower shall comply
with the following covenants (it being
understood that Sections 6.01, 6.05 and 6.06 shall not be effective
until the initial Advance is made):
6.01 Compliance with Laws, Etc. Borrower shall comply, and cause
each of its subsidiaries to comply, in all material respects with
all applicable laws, rules, regulations and orders, where the
failure to so comply would have a material adverse effect on
Borrower, such compliance to include without limitation paying
before the same become delinquent all taxes, assessments and
governmental charges imposed upon it or upon its property except
to the extent contested in good faith.
6.02 Transfers of Assets. Borrower shall not sell, convey,
transfer, lease, license, assign or otherwise dispose of (whether
in one transaction or in a series of transactions) all or
substantially all of its assets (whether now owned or hereafter
acquired) to any person or entity, or permit any of its
subsidiaries to do so. Borrower shall not sell, convey,
transfer, lease, license, assign or otherwise dispose of (whether
in one transaction or in a series of transactions) (i) any of the
Pre-Approval Collateral (as defined in the Security Agreement)
until such time as the Pre-Approval Commitment has been
terminated and all obligation of Borrower under the Loan
Documents with respect to Pre-Approval Advances have been
irrevocably paid and satisfied in full and (ii) any of the First
Year Sales Collateral (as defined in the Security Agreement)
until such time as the First Year Sales Commitment has been
terminated and all obligations of Borrower under the Loan
Documents with respect to First Year Sales Advances have been
irrevocably paid and satisfied in full.
6.03 Liens, Etc. Borrower shall not create or allow to be
created, or permit any of its subsidiaries to create or allow to
be created, any lien, mortgage, pledge, security interest or
other encumbrance (collectively "Liens"), upon or with respect to
(i) any of the Pre-Approval Collateral (as defined in the
Security Agreement) until such time as the Pre-Approval
Commitment has been terminated and all obligation of Borrower
under the Loan Documents with respect to Pre-Approval Advances
have been irrevocably paid and satisfied in full and (ii) any of
the First Year Sales Collateral (as defined in the Security
Agreement) until such time as the First Year Sales Commitment has
been terminated and all obligations of Borrower under the Loan
Documents with respect to First Year Sales Advances have been
irrevocably paid and satisfied in full. Notwithstanding the
preceding sentence, Borrower may create Liens upon such
Collateral securing indebtedness which is junior and subordinate
in right of payment to Borrower's obligations to Lender under the
Loan Documents ("Junior Liens") so long as, prior to the creation
of such Junior Liens, Lender has consented in writing to such
Junior Liens (such consent not to be unreasonably withheld) and
Lender and the holder of such Junior Liens have entered into a
subordination agreement in form and substance reasonably
satisfactory to the Lender providing for the subordination of the
indebtedness secured by the Junior Liens to the obligations of
Borrower under the Loan Documents.
6.04 Debt. Borrower shall not create or allow to be created or
permit any of its subsidiaries to create or allow to be created,
any Debt which is senior in right of payment to Borrower's
indebtedness pursuant to this Agreement.
6.05 Corporate Existence; Business. Borrower will (i) maintain
and preserve in full force and effect its corporate existence,
and (ii) continue to engage in the business in which it is
engaged on the date hereof.
6.06 SEC Information. Borrower will provide to Lender a copy of
any and all forms, reports, or other documents filed with the
Securities and Exchange Commission contemporaneously with
providing such documents to the Securities and Exchange
Commission.
ARTICLE VII
EVENTS OF DEFAULT
7.01 Events of Default. At any time at which any obligations of
the Borrower are outstanding under the Loan Documents with
respect to any Advances, the occurrence of each of the following
events shall be considered an event of default ("Event of
Default"):
(a) Borrower shall fail to pay any principal of, or interest on,
either of the Notes when the same becomes due and payable and
four (4) Business Days have elapsed following receipt of notice
of such non-payment from Lender to Borrower;
(b) Any representation or warranty made by Borrower under or in
connection with this Agreement shall prove to have been incorrect
in any respect when made and such incorrect representation or
warranty has a material adverse effect on Borrower or
significantly impairs the prospect that Lender will be repaid in
accordance with the terms of this Agreement and is not cured
within thirty (30) days of receipt of notice by Borrower;
(c) Borrower shall fail to perform or observe, in any respect,
any term, covenant or agreement contained in this Agreement
required to be performed or observed by Borrower (other than
under Section 6.02 or 6.03 above) and such failure to perform or
observe any term, covenant or agreement contained in this
Agreement has a material adverse effect on Borrower or
significantly impairs the prospect that Lender will be repaid in
accordance with the terms of this Agreement and is not cured
within thirty (30) days after receipt of notice by Borrower;
(d) Borrower shall fail to perform or observe, in any respect,
the provisions of Section 6.02 or 6.03 above except as provided
in Section 8.02; and, in the case of Section 6.03, if such Event
of Default is based on a tax lien, judgment lien or materialman's
lien, such judgment shall continue without discharge or stay for
a period of sixty (60) days;
(e) One or more judgments or orders for the payment of money
shall be entered against Borrower or any of its subsidiaries
involving in the aggregate a liability of [*] or more, and each
such judgment or order shall continue without discharge or stay
for a period of sixty (60) days;
(f) Borrower or any of its subsidiaries shall (i) commence a
voluntary case under the federal bankruptcy laws (as now or
hereafter in effect), (ii) file a petition seeking to take
advantage of any other laws relating to bankruptcy, insolvency,
reorganization, winding up or composition for adjustment of
debts, (iii) consent to or fail to contest in a timely and
appropriate manner any petition filed against it in an
involuntary case under such bankruptcy laws or other laws, (iv)
apply for or consent to, or fail to contest in a timely and
appropriate manner, the appointment of, or the taking of
possession by, a receiver, custodian, trustee, or liquidator of
itself or of a substantial part of its property, (v) admit in
writing its inability to pay its debts as they become due, (vi)
make a general assignment for the benefit of creditors, or (vii)
take any corporate action for the purpose of authorizing any of
the foregoing;
(g) A case or other proceeding shall be commenced against
Borrower or any of its subsidiaries in any court of competent
jurisdiction seeking (i) relief under the federal bankruptcy laws
(as now or hereafter in effect) or under any other laws relating
to bankruptcy, insolvency, reorganization, winding up or
adjustment of debts, or (ii) the appointment of a trustee,
receiver, custodian, liquidator or the like for Borrower or any
of its subsidiaries or for all or any substantial part of their
respective assets, and such case or proceeding shall continue
without dismissal or stay for a period of sixty (60) consecutive
days, or an order granting the relief requested in such case or
proceeding (including, but not limited to, an order for relief
under such federal bankruptcy laws) shall be entered;
(h) A Change of Control shall occur;
(i) Any Debt of Borrower or any of its subsidiaries in excess of
[*] shall be declared to be due and payable, or required to be
prepaid (other than by a regularly scheduled required prepayment)
prior to the stated maturity thereof;
(j) Borrower shall fail to meet the continued listing criteria
of the Nasdaq National Market or Nasdaq Smallcap Market at any
time and shall not cure such failure within thirty (30) days of
receipt of notice by Borrower of the occurrence thereof; or
(k) Borrower shall violate or breach the provisions of Section
14.5 of the Services Agreement.
7.02 Default. If any Event of Default shall occur and be
continuing, then Lender (i) may, by notice to Borrower, declare
its obligation to make Advances to be terminated, whereupon the
same shall forthwith terminate, and (ii) may, by notice to
Borrower, declare each Note, all interest thereon and all other
amounts payable under this Agreement to be forthwith due and
payable, whereupon each Note, all such interest and all such
amounts shall become and be, forthwith due and payable, without
presentment, demand, protest or further notice of any kind, all
of which are hereby expressly waived by Borrower; provided
however that if an Event of Default specified in Section 7.01(f)
and (g) shall occur, (A) the obligation of Lender to make
Advances shall automatically be terminated and (B) each Note, all
such interest and all such amounts shall automatically become and
be due and payable, without presentment, demand, protest or any
notice of any kind, all of which are hereby expressly waived by
Borrower.
ARTICLE VIII
CERTAIN AGREEMENTS OF LENDER
8.01 Subordination. Effective upon the initial Advance, Lender
agrees that the indebtedness of Borrower under the Notes (the
"Subordinated Debt") is subordinate in right of
payment to the prior payment of the indebtedness of Borrower under the
Biogen Loan Agreement up to, but only up to, an aggregate amount of Three
Million Dollars ($3,000,000)(the "Senior Debt"), except as provided in this
Section 8.01. Principal and interest due and payable from Borrower to
Lender under the Subordinated Debt may be paid in accordance with the
terms and conditions of this Agreement until and unless the holder of
the Senior Debt: notifies Borrower in writing to cease making such payments
on the Subordinated Debt as a result of any default or event which has
occurred that entitles the holder of the Senior Debt to accelerate or
declare due and payable the Senior Debt prior to its stated maturity; and
declares the Senior Debt due and payable. Borrower shall not resume making
payments to Lender until it receives written notice from the holder of the
Senior Debt stating that such default or event has abated or been cured and
that Borrower may resume making payments; provided, however, that the
holder of the Senior Debt shall provide such notice promptly upon the
abatement or cure, to its reasonable satisfaction, or such default or
event. The holder of the Senior Debt shall send to Lender concurrently any
notice it sends to Borrower to cease making payments, or any notice of
default or other event that would cause a deferral of payments, on the
Subordinated Debt. In addition, Lender shall enter into a
subordination agreement reflecting the foregoing subordination in form and
substance reasonably acceptable to Biogen and Lender.
8.02 Inventory Financing. Upon the written request of Borrower,
Lender agrees to negotiate in good faith with Borrower and a
third-party lender, which proposes to provide to Borrower
inventory financing with respect to the Product (the "Financing
Party"), to enter into an intercreditor agreement on terms
reasonably satisfactory to Lender, providing that, effective upon
the repayment of all of Borrower's obligations under the Loan
Documents with respect to Pre-Approval Advances (i) each of
Lender and the Financing Party will have a security interest in
the First Year Sales Collateral, (ii) the Financing Party will
serve as collateral agent for the First Year Sales Collateral for
the benefit of Lender and the Financing Party, and (iii) the
obligations of Borrower to the Financing Party shall be
subordinate to the prior payment in full of all of Borrower's
obligations under the Loan Documents with respect to First Year
Sales Advances.
ARTICLE IX
MISCELLANEOUS
9.01 Amendments, Etc. No amendment or waiver of any provision of
this Agreement or the Notes, nor consent to any departure by
Borrower therefrom, shall in any event be effective unless the
same shall be in writing and signed by Borrower and Lender, and
then such waiver or consent shall be effective only in the
specific instance and for the specific purpose for which given.
9.02 Notices, Etc. All notices and other communications provided
for hereunder shall be in writing, shall specifically refer to
this Agreement, shall be addressed to the receiving party's
address set forth below or to such other address as a party may
designate by notice hereunder, and shall be deemed to have been
sufficiently given for all purposes if (i) mailed by first class
certified or registered mail, postage prepaid, (ii) sent by
express delivery service, (iii) personally delivered, or (iv)
made by telecopy or facsimile transmission.
If to Borrower: CV Therapeutics, Inc.
0000 Xxxxxx Xxxxx
Xxxx Xxxx, XX 00000
Attn: Xxxxxxx X. Xxxxx, General Counsel
Facsimile: (000) 000-0000
with a copy to: Cooley Godward LLP
Five Palo Alto Square
0000 Xx Xxxxxx Xxxx
Xxxx Xxxx, XX 00000-0000
Attn: Xxxxxx X. Xxxxx
Facsimile: (000) 000-0000
If to Lender: Quintiles Transnational Corp.
0000 Xxxxxxxxxx Xxxxx
Xxxxxxxxxx Xxxx., Xxxxx 000
Xxxxxx, XX 00000
Attn: Xxxx X. Xxxxxxx
Facsimile: (000) 000-0000
with a copy to: Smith, Anderson, Blount, Dorsett,
Xxxxxxxx & Xxxxxxxx, L.L.P.
0000 Xxxxx Xxxxx Xxxxxxx Xxxxxx
Xxxxxxx, XX 00000
Attn: Xxxxxx X. Xxxxx, Esq.
Facsimile: (000) 000-0000
If to Innovex: Innovex, Inc.
00 Xxxxxxxxx Xxxxxxxxx
Xxxxxxxxxx, XX 00000
Attn: Xxxxx Xxxxx, President
Facsimile: (000) 000-0000
with a copy to: L. Xxxxxxx Xxxxxx
General Counsel
00 Xxxxxxxxx Xxxxxxxxx
Xxxxxxxxxx, XX 00000
Facsimile: (000) 000-0000
9.03 No Waiver; Remedies. No failure on the part of Lender to
exercise, and no delay in exercising, any right hereunder or
under the Notes shall operate as a waiver thereof; nor shall any
single or partial exercise of any such right preclude any other
or further exercise thereof or the exercise of any other right.
The remedies herein provided are cumulative and not exclusive of
any remedies provided by law.
9.04 Right of Set-off. Lender is hereby authorized at any time
and from time to time, to the fullest extent permitted by law, to
set off and apply any milestone payment obligation by Lender to
Borrower under the Services Agreement against any and all of the
obligations of Borrower now or hereafter existing under this
Agreement and the Notes, whether or not Lender
shall have made any demand under this Agreement or the Notes and although
such obligations may be unmatured. Lender agrees promptly to notify
Borrower after any such set-off and application, provided that
the failure to give such notice shall not affect the validity of
such setoff and application. The rights of Lender under this
Section 9.04 are in addition to other rights and remedies
(including, without limitation, other rights of set-off) which
Lender may have.
9.05 Attorneys' Fees. In the event that any dispute among the
parties to this Agreement should result in litigation, the
prevailing party in such dispute shall be entitled to recover
from the losing party all fees, costs and expenses enforcing any
right of such prevailing party under or with respect to this
Agreement, including without limitation, such reasonable fees and
expenses of attorneys and accountants, which shall include,
without limitation, all fees, costs and expense of appeals.
9.06 Binding Effect; Assignment. This Agreement shall be binding
upon and inure to the benefit of Borrower and Lender and their
respective successors and assigns, provided that neither Borrower
nor Lender may assign or transfer any or all of its rights or
obligations under the Loan Documents without the prior written
consent of the other party; provided however, that Lender may at
any time assign or transfer any or all of its rights or
obligations under the Loan Documents to an Affiliate.
9.07 Governing Law; Consent to Jurisdiction . This Agreement and
the Notes shall be governed by, and construed in accordance with,
the laws of the State of Delaware, without reference to the
conflicts or choice of law principals thereof. Borrower and
Lender hereby irrevocably consents to the exclusive personal
jurisdiction of any state or federal courts located in Delaware,
in any action, claim or other proceeding arising out of any
dispute in connection with the Loan Documents, any rights or
obligations hereunder or the performance of such rights and
obligations. Lender and Borrower agree to waive their respective
rights to a jury trial with respect to any action, claim, or
other proceeding arising out of any dispute in connection with
the Loan Documents or the Services Agreement, any rights or
obligations hereunder or thereunder, or the performance of such
rights and obligations.
9.08 Severability. To the extent any provision of this Agreement
is prohibited by or invalid under applicable law, such provision
shall be ineffective to the extent of such prohibition or
invalidity, without invalidating the remainder of such provision
or the remaining provisions of this Agreement.
9.09 Entire Agreement. This Agreement and the other Loan
Documents embody the entire agreement and understanding between
the parties hereto and supersede all prior oral or written
agreements and understandings relating to the subject matter
hereof. No statement, representation, warranty, covenant or
agreement of any kind not expressly set forth in the Loan
Documents shall affect, or be used to interpret, change or
restrict, the express terms and provisions of the Loan Documents.
9.10 Inconsistent Terms. If any provision contained in this
Agreement is in conflict with, or inconsistent with, any
provision of the Services Agreement, then the provision contained
in this Agreement shall control.
9.11 Further Action. Each party shall, without further
consideration, take such further action and execute and deliver
such further documents as may be reasonably requested by the
other party in order to carry out the provisions and purposes of
this Agreement.
9.12 Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed to be an original and
all of which, when taken together, shall constitute one and the
same instrument.
REST OF PAGE INTENTIONALLY LEFT BLANK;
SIGNATURES ON FOLLOWING PAGE
Signature Page to Loan Agreement
In Witness Whereof, the parties hereto have caused this Loan
Agreement to be executed by their respective officers thereunto
duly authorized, as of the date first above written.
BORROWER:
CV THERAPEUTICS, INC.
By: /s/ Xxxxx Xxxxx
Name: Xxxxx X. Xxxxx
Title: Chairman & CEO
LENDER:
QUINTILES TRANSNATIONAL CORP.
By:
Name:
Title:
Signature Page to Loan Agreement
In Witness Whereof, the parties hereto have caused this Loan
Agreement to be executed by their respective officers thereunto
duly authorized, as of the date first above written.
BORROWER:
CV THERAPEUTICS, INC.
By:
Name:
Title:
LENDER:
QUINTILES TRANSNATIONAL CORP.
By:/s/ Xxxxx X. Xxxxxxx
Name: Xxxxx X. Xxxxxxx
Title: Senior Vice President
Corporate Development
EXHIBIT A
DEFINITIONS
"Affiliate" shall have the meaning given such term in Rule
12b-2 of the Exchange Act.
"Agreement" or "Loan Agreement" shall mean this Loan
Agreement between Lender and Borrower.
"Biogen Loan Agreement" shall mean the Loan Agreement dated
March 7, 1997 between Borrower and Biotech Manufacturing Ltd., a
wholly-owned subsidiary of Biogen, Inc. ("Biogen"), as amended
from time to time.
"Business Day" shall mean any day other than a Saturday,
Sunday or legal holiday on which banks in New York, New York are
open for the conduct of their banking business.
"Change of Control" shall mean the occurrence of any of the
following events: (i) the acquisition, whether directly or
indirectly, by any person or entity, including a "group" as
defined in Section 13(d)(3) of the Exchange Act, of more than
thirty percent (30%) of the Common Stock of Borrower; (ii)
Borrower shall merge or consolidate with or into another
corporation with the effect that the persons who were the
shareholders of Borrower immediately prior to the effective time
of such merger or consolidation hold less than fifty-one percent
(51%) of the combined voting power of the outstanding securities
of the surviving corporation of such merger or the corporation
resulting from such consolidation ordinarily (and apart from
rights accruing under special circumstances) having the right to
vote in the election of directors; or (iii) at any time during
any calendar year, fifty percent (50%) or more of the members of
the full Board of Directors of Borrower shall have resigned or
been removed or replaced.
"Debt" shall mean (i) indebtedness for borrowed money, (ii)
obligations evidenced by bonds, debentures, notes or other
similar instruments, (iii) obligations to pay the deferred
purchase price of property or services, (iv) obligations as
lessee under leases which shall have been or should be, in
accordance with generally accepted accounting principles,
recorded as capital leases, and (v) obligations under direct or
indirect guaranties in respect of, and obligations (contingent or
otherwise) to purchase or otherwise acquire, or otherwise to
assure a creditor against loss in respect of, indebtedness or
obligations of others of the kinds referred to in clauses (i)
through (iv) above.
"Default Conversion Price" shall mean (a) the Fair Market
Value of the Common Stock, multiplied by (b) [*].
"Exchange Act" shall mean the Securities Exchange Act of
1934, as amended.
"Fair Market Value" of the Common Stock on any date shall
mean (a) if the Common Stock is then traded on a securities
exchange or the Nasdaq National Market, the average of the
closing prices of the Common Stock on such exchange or market
over the ten (10) trading days immediately prior to such date;
(b) if the Common Stock is then regularly traded over-the-
counter, the average of the sale prices or secondarily the
closing bid of the Common Stock over the ten (10) trading days
immediately prior to such date; or (c) if there is no active
public market for the Common Stock, the fair market value thereof
shall be determined as of such date by a
nationally recognized investment banking firm chosen in good faith by
Borrower's board of directors.
"Knowledge" of the Borrower shall mean the knowledge of one
or more of Borrower's executive officers.
"NDA Filing" shall have the meaning given such term in the
Services Agreement.
"Pre-Approval Maturity Date" shall mean the earlier to occur
of (a) [ * ] following Product Launch, or (b) [ * ] following the
date of the NDA Filing (as defined in the Services Agreement).
"Prime Rate" shall mean the rate which Bank of America at
either Charlotte, North Carolina or San Francisco, California
announces from time to time as its prime rate, the Prime Rate to
change when and as such prime rate changes.
"Product" shall have the meaning given such term in the
Services Agreement.
"Product Launch" shall have the meaning given such term in
the Services Agreement.
"Ranolazine License Agreement" shall mean the License
Agreement dated as of March 27, 1996 between Syntex (U.S.A.),
Inc., as licensor, and Borrower, as licensee, as amended from
time to time.
EXHIBIT B
PRE-APPROVAL NOTE
PROMISSORY NOTE
$10,000,000 May 5, 1999
FOR VALUE RECEIVED, CV THERAPEUTICS, INC., a Delaware
corporation ("Borrower"), hereby promises to pay to the order of
QUINTILES TRANSNATIONAL CORP., a North Carolina corporation
("Lender"), in lawful money of the United States of America in
immediately available funds, the principal sum of Ten Million
Dollars ($10,000,000) or, if less, the aggregate unpaid principal
amount of all Advances (as defined below) made by Lender to
Borrower pursuant to the Loan Agreement (as defined below),
together with accrued and unpaid interest thereon, on the Pre-
Approval Maturity Date. The interest shall accrue on the unpaid
principal amount of each Advance at the rates and in the manner
provided in the Loan Agreement. Payment of this Note shall be
made as provided in the Loan Agreement. Borrower may prepay this
Note in full or in part at any time without penalty. Capitalized
terms used but not defined herein shall have the meanings
ascribed to them in the Loan Agreement.
Each Advance made by Lender to Borrower, and all payments
made on account of the principal amount hereof, shall be recorded
by Lender and endorsed on the grid attached hereto which is a
part of this Note. Failure to so record and endorse such
Advances and payments, however, shall not affect Borrower's
obligations in respect of such Advances.
This Note is the Pre-Approval Note referenced in the Loan
Agreement between Borrower and Lender dated as of the date of
this Note (as same may be amended from time to time, the "Loan
Agreement"), and is entitled to the benefits thereof. The Loan
Agreement, among other things, (i) provides for the making of
certain Pre-Approval Advances ("Advances") by Lender to Borrower
from time to time, the indebtedness of Borrower resulting from
each such Advance being a principal amount evidenced by this
Note, (ii) provides that this Note is secured by, and Borrower
has granted a security interest in, certain of its assets as set
forth in that certain Security Agreement, dated as of the same
date as this Note, and (iii) provides that, under certain
circumstances set forth in Section 2.07 of the Loan Agreement,
Lender may convert the outstanding principal balance of and all
accrued interest on this Note, in whole or in part, into shares
of Common Stock in accordance with the provisions of the Loan
Agreement.
In case an Event of Default shall occur and be continuing,
the unpaid principal amount of, and accrued interest on, this
Note may be declared to be due and payable in the manner and with
the effect provided in the Loan Agreement.
Borrower hereby waives presentment, demand, notice, protest
and all other demands and notices in connection with the
delivery, acceptance, performance and enforcement of this Note.
Signature Page to Pre-Approval Note
This Note shall be governed by and construed in accordance
with the law of the State of Delaware without regard to the
conflicts of law rules of such state.
BORROWER:
CV THERAPEUTICS, INC.
By: /s/ Xxxxx Xxxxx
Name: Xxxxx X. Xxxxx
Title:Chairman & CEO
ADVANCES AND PAYMENTS OF PRINCIPAL
Date Amount Amount of Unpaid Notation
of Principal Principal Made By
Advance Paid or Balance
Prepaid
EXHIBIT C
FIRST YEAR SALES NOTE
PROMISSORY NOTE
May 5, 1999
FOR VALUE RECEIVED, CV THERAPEUTICS, INC., a Delaware
corporation ("Borrower"), hereby promises to pay to the order of
QUINTILES TRANSNATIONAL CORP., a North Carolina corporation
("Lender"), in lawful money of the United States of America in
immediately available funds, the aggregate principal amount of
all Advances (as defined below) made by Lender to Borrower
pursuant to the Loan Agreement (as defined below) and endorsed on
the grid attached hereto, which is a part of this Note, together
with accrued and unpaid interest thereon. The interest shall
accrue on the unpaid principal amount of each Advance at the
rates and in the manner provided in the Loan Agreement. The
unpaid principal amount of, and accrued interest on, each Advance
is due and payable to Lender on the date which is twenty four
(24) months after the date on which such Advance was made, as
provided in the Loan Agreement. Borrower may prepay this Note in
full or in part at any time without penalty. Any capitalized
terms used but not defined herein shall have the meanings
ascribed to them in the Loan Agreement.
Each Advance made by Lender to Borrower, and all payments
made on account of the. principal amount hereof, shall be
recorded by Lender and endorsed on the grid attached hereto which
is a part of this Note. Failure to so record and endorse such
Advances and payments, however, shall not affect Borrower's
obligations in respect of such Advances.
This Note is the First Year Sales Note referenced in the
Loan Agreement between Borrower and Lender dated as of the date
of this Note (as same may be amended from time to time, the "Loan
Agreement"), and is entitled to the benefits thereof. The Loan
Agreement, among other things, (i) provides for the making of
certain First Year Sales Advances ("Advances") by Lender to
Borrower from time to time, the indebtedness of Borrower
resulting from each such Advance being a principal amount
evidenced by this Note, (ii) provides that this Note is secured
by, and Borrower has granted a security interest in, certain of
its assets as set forth in that certain Security Agreement, dated
as of the same date as this Note, and (iii) provides that Lender
may, under certain circumstances set forth in Section 2.07 of the
Loan Agreement, convert the outstanding principal balance of and
all accrued interest on this Note, in whole or in part, into
shares of Common Stock in accordance with the provisions of the
Loan Agreement.
In case an Event of Default shall occur and be continuing,
the unpaid principal amount of, and accrued interest on, this
Note may be declared to be due and payable in the manner and with
the effect provided in the Loan Agreement.
Borrower hereby waives presentment, demand, notice, protest
and all other demands and notices in connection with the
delivery, acceptance, performance and enforcement of this Note.
Signature Page to First Year Sales Note
This Note shall be governed by and be construed in
accordance with the laws of the State of Delaware without regard
to the conflicts of law rules of such state.
BORROWER:
CV THERAPEUTICS, INC.
By: /s/ Xxxxx Xxxxx
Name: Xxxxx X. Xxxxx
Ttitle: Chairman & CEO
ADVANCES AND PAYMENTS OF PRINCIPAL
Date Amount Amount of Unpaid Notation
of Principal Principal Made By
Advance Paid or Balance
Prepaid
Schedule 4.13
Debt of Borrower
Long-term debt consists of the following:
Biogen Loan Agreement in the amount of $7,500,000 at prime
plus 1.0% (8.75% at March 31, 1999) with interest due annually on
March 10th; first $3.0 million of principal due in equal
installments beginning March 10, 2000 through February 10, 2005;
remaining $4.5 million to be deducted from future royalty
payments or repaid through the issuance of common stock. An
additional $4.5 million to be made available upon achievement of
certain development milestones and this may be deducted from
future royalty payments or repaid through the issuance of common
stock.
Future minimum lease payments as of March 31, 1999 for
noncancelable capital lease with Mellon US Leasing, a Division of
Mellon US Leasing Corporation, is as follows:
1999 $ 83,564
2000 $111,419
2001 $111,419
2002 $162,918
Total minimum payments $469,320
Less amount representing (70,932)
interest
Present value of future $398,388
lease payments
Guarantor of second mortgage from Imperial Bank for Xxxxxx
X. Xxxxx, Vice President Clinical Research and Development of
Borrower, and Xxxxxx Xxxx, his wife, dated October 27, 1997 in
the original amount of $75,000. The maturity date of the second
mortgage is October 28, 2002.
Schedule 4.14
Lien, Mortgage, Pledge, or Security Interest of Borrower
On Borrower's properties or assets:
Lien Holder: Ice Machines Incorporated
0000 Xxxxxx Xx.
Xxx Xxxxxxxxx
Financing Statement on leased Crystal Tips Flaker,
Model 404-UAF-161 filed May 21, 1997, pursuant to
equipment lease dated May 13, 1997.
Lien Holder: OCE-USA, Inc.
0000 X. Xxxxxxxxxx
Xxxxxxx, XX 00000
Financing Statement on leased copier, Oce 3045
filed September 11, 1997 pursuant to Term Rental
Agreement dated June 6, 1997.
On the Collateral:
None.
[ * ] = Certain confidential information contained in this
document, marked by brackets, has been omitted and filed
separately with the Securities and Exchange Commission pursuant
to Rule 24b-2 of the Securities Exchange Act of 1934, as amended.
