THIS AGREEMENT IS NOT AN OFFER WITH RESPECT TO ANY SECURITIES OR A SOLICITATION OF ANY KIND. SUCH AN OFFER OR SOLICITATION WILL BE MADE ONLY IN COMPLIANCE WITH ALL APPLICABLE SECURITIES LAWS RESTRUCTURING SUPPORT AGREEMENT
Confidential —
For Discussion and Settlement Purposes Only
Subject to Federal Rule of Evidence 408
THIS
AGREEMENT IS NOT AN OFFER WITH RESPECT TO ANY SECURITIES OR
A SOLICITATION OF ANY KIND. SUCH AN OFFER OR SOLICITATION WILL BE
MADE ONLY IN COMPLIANCE WITH ALL APPLICABLE SECURITIES LAWS
A SOLICITATION OF ANY KIND. SUCH AN OFFER OR SOLICITATION WILL BE
MADE ONLY IN COMPLIANCE WITH ALL APPLICABLE SECURITIES LAWS
RESTRUCTURING SUPPORT AGREEMENT, dated as of April 6, 2009, by
and among EPIX Pharmaceuticals, Inc., a Delaware corporation
(the “Company”), and
(i) each of the undersigned beneficial owners of (or
investment managers or advisors for accounts or funds that
beneficially own) Notes (as defined below), and (ii) each
other beneficial owner of (or investment manager or advisor for
accounts or funds that beneficially own) Notes that executes a
counterpart signature page to this Agreement after the date of
this Agreement as provided herein (together with their
applicable transferees, successors and assigns, each a
“Noteholder” and, collectively, the
“Noteholders”).
WHEREAS, the Company has issued and outstanding
$100 million aggregate principal amount of its
3.00% Convertible Senior Notes due June 15, 2024 (the
“Notes”) issued under that certain
Indenture, dated as of June 7, 2004 by and between the
Company and U.S. Bank, National Association, as Trustee, as
amended by the First Supplemental Indenture, dated as of
January 5, 2001 (as amended, the
“Indenture”);
WHEREAS, in the Exchange Offer (as defined below) the Company
intends to offer to exchange (i) a cash payment of $180.00,
(ii) 3391
shares of the Company’s common stock, par value $0.01 per
share (the “Common Stock”), and
(iii) one (1) contingent value right
(“Contingent Value Right” or
“CVR”) which represents the contractual right
to the consideration set forth in the Contingent Value Rights
Agreement (as defined below), for each $1,000 of aggregate
principal amount outstanding of its Notes;
WHEREAS, concurrently with the Exchange Offer, in the Consent
Solicitation (as defined below) the Company intends to solicit
consents from the holders of the outstanding Notes to adopt the
Proposed Amendments (as defined below) to the Indenture to
modify certain provisions of the Indenture that may be amended
by the written consent of holders of a majority in aggregate
principal amount of the Notes (these proposed amendments to the
Indenture, together with the agreements giving effect to such
amendments, the “Proposed Amendments”).
The Company is not offering to pay any separate or additional
payment for the consents to the Proposed Amendments;
WHEREAS, the Company and the Noteholders have engaged in good
faith negotiations with the objective of consummating the
Exchange Offer, the Consent Solicitation and related
transactions, including (i) the issuance of the Common
Stock in the Exchange Offer and (ii) the approval of the
Proposed Amendments substantially in the form set forth in
Exhibit A hereto, as the foregoing may
be amended in accordance with the terms hereof; and
WHEREAS, the Company and the Noteholders desire that the Company
conduct the Exchange Offer and the Consent Solicitation as soon
as reasonably practicable.
NOW, THEREFORE, in consideration of the mutual covenants and
agreements set forth in this Agreement, and for other good and
valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, each of the parties signatory to this
Agreement hereby agrees as follows:
1. Definitions. Capitalized
terms used and not defined in the body of this Agreement have
the meaning ascribed to them in the respective Annex hereto, and
the following terms shall have the following meanings:
“Affiliate” means, with respect to any Person,
any other Person that directly or indirectly through one or more
intermediaries, controls, is controlled by, or is under common
control with, such Person. For purposes of this definition,
“control” of a Person means the power, directly or
indirectly, to direct or cause the direction of the
1 To
be determined by using a price equal to the arithmetic average
of the Volume Weighted Average Price of the Common Stock for the
fifteen (15) trading day period ending on the trading day
immediately prior to signing this Agreement.
Confidential —
For Discussion and Settlement Purposes Only
Subject to Federal Rule of Evidence 408
management and policies of such Person whether through holding
beneficial ownership interests in such other Person, by contract
or otherwise.
“Agreement” means this Restructuring Support
Agreement, including the Schedules and Annexes hereto.
“Business Day” means any day that is not a
Saturday, a Sunday or a day on which banks in the State of New
York are generally closed for business.
“Buyer” means Lantheus Medical Imaging, Inc.
“Buyer Parties” mean the Buyer and its present
or former officers, directors, agents, employees, shareholders
and affiliates, in each case, in their capacity as such, and the
successors and assigns of any of the foregoing.
“Buyer Party Provisions” means, collectively,
Sections 3(b), 5(c), 10, 12, 16, 17, 18, 19, 20, 25 and 26
and any applicable definitions of the capitalized terms used in
the foregoing sections, in each case, to the extent and solely
to the extent that such provisions benefit, or otherwise relate
to the rights of, the Buyer Parties contained in Section 10.
“Commission” means the Securities and Exchange
Commission, or any other federal agency at the time
administering the Securities Act or the Exchange Act.
“Consent Solicitation” means that certain
consent solicitation described in the Draft Schedule TO.
“Draft Schedule TO” means that certain
draft Schedule TO of the Company, a copy of which is
attached hereto.
“Exchange Act” means the Securities Exchange
Act of 1934, and any successor to such statute, and the rules
and regulations of the Commission issued under such Act, as they
each may, from time to time, be amended and in effect.
“Escrow Agreement” means that certain Escrow
Agreement, dated as of the date hereof, by and between the
Company and U.S. Bank, National Association, as Escrow
Agent.
“Exchange Documents” means this Agreement and
any other documents to be executed and delivered in connection
with the consummation of the Exchange Offer.
“Exchange Offer” means that certain exchange
offer described in the Draft Schedule TO.
“Person” means any individual, partnership,
corporation, limited liability company, association, trust,
joint venture, unincorporated organization, governmental unit or
other entity.
“Product” means the injectable intravascular
magnetic resonance angiography contrast agent currently known as
Vasovist®.
“Proposed Amendments” means those proposed
amendments to the Indenture set forth on
Exhibit A hereto, together with the
indenture supplement and any other agreements giving effect to
such amendments.
“Purchase Agreement” means that certain Asset
Purchase Agreement, dated as of the date hereof, a copy of which
is attached hereto as Exhibit B,
between the Company and the Buyer, pursuant to which, among
other things, the Company has agreed to sell, transfer and
assign to the Buyer the Purchased Assets.
“Purchased Assets” means, collectively, the
Product, as well as all intellectual property, regulatory
filings, data, information, records, contracts, claims, and
other materials related to the Product and as more specifically
set forth in the Purchase Agreement.
“Required Noteholders” means holders of
outstanding Notes representing at least seventy-five percent
(75%) in aggregate principal amount of the Notes.
“Securities Act” means the Securities Act of
1933, as amended, and the rules and regulations promulgated
thereunder.
2
Confidential —
For Discussion and Settlement Purposes Only
Subject to Federal Rule of Evidence 408
“Tender Notes” means the face amount of Notes
to be tendered by each Noteholder in the Exchange as set forth
in Schedule A hereto.
“Transfer” means to, directly or indirectly,
(i) sell, assign or transfer, (ii) pledge, encumber,
create any participation or grant any proxy or option, in each
case such as would prevent, preclude, hinder or delay the
ability of the Person engaging in such Transfer from fulfilling
any of such Person’s obligations under this Agreement,
including, without limitation, Section 3 hereof, or
(iii) enter into any agreement, commitment or other
arrangement to do any of the foregoing. Notwithstanding the
foregoing, the parties acknowledge that certain Noteholders may
hold the Tender Notes in margin accounts and may continue to so
hold; provided that in no event shall this affect such
Noteholders obligations under the terms of this Agreement.
“Transaction Documents” means the Exchange
Documents, the Registration Rights Agreement, the Contingent
Value Rights Agreement and the Proposed Amendments.
2. Agreements of the Company.
(a) Subject to the terms and conditions of this Agreement,
the Company agrees as follows:
(i) Commencement of the Exchange Offer and the
Consent Solicitation: The Company shall
commence the Exchange Offer and the Consent Solicitation within
two (2) Business Days of the date hereof, pursuant to which
(A) with respect to the Exchange Offer, the Company will
offer to exchange for each $1,000 in principal amount of Notes
(including all accrued but unpaid interest thereon through the
consummation of the Exchange Offer) (1) $180.00 in cash,
(2) 339 shares of Common Stock and (3) one Contingent
Value Right (the consideration referenced in clauses (1),
(2) and (3), the “Exchange
Consideration”), which shares of Common Stock and
CVRs will be issued in a transaction exempt from registration
pursuant to Section 3(a)(9) of the Securities Act, and
assuming that all Notes are tendered in the Exchange Offer, will
result in an aggregate cash payment by the Company of
$18,000,000 (including all accrued and unpaid interest through
the consummation of the Exchange Offer), the issuance of
33,900,000 shares of Common Stock and issuance of 100,000
CVRs and (B) with respect to the Consent Solicitation, the
Company will solicit consents from the holders of the
outstanding Notes to adopt the Proposed Amendments. For the
avoidance of doubt, the Company and the Noteholders acknowledge
and agree that no portion of the Exchange Consideration is in
payment of any accrued and unpaid interest on the Notes.
(ii) Expiration of the Exchange Offer and the
Consent Solicitation: The Exchange Offer and
the Consent Solicitation shall expire on the date which is
twenty (20) Business Days from the date of commencement of
the Exchange Offer and the Consent Solicitation, provided that
the Company may extend such expiration date with the written
consent of the Required Noteholders.
(iii) Exchange Offer Minimum Tender
Condition: The Company may not consummate the
Exchange Offer or the Proposed Amendments unless holders of at
least ninety-three percent (93%) of the aggregate principal
amount of Notes shall have (a) validly tendered and not
withdrawn their Notes in the Exchange Offer and (b) consent
to the Proposed Amendments, provided that, subject to
Section 4, such conditions may be modified by the Company
with the written consent of the Required Noteholders or if and
as necessary in order to comply with applicable law.
(iv) Affiliates’ Registration Rights
Agreement: In the event the Exchange Offer is
consummated, the Company will enter into a Registration Rights
Agreement substantially in the form of
Exhibit C attached hereto (the
“Registration Rights Agreement”) with
any requesting holders of Notes who may be deemed affiliates (as
defined under Rule 144 of the Securities Act) of the
Company following the consummation of the Exchange Offer.
(v) Contingent Value Rights
Agreement. Immediately prior to the
consummation of the Exchange Offer, the Company will enter into
a Contingent Value Rights Agreement substantially in the form of
Exhibit D attached hereto (the
“Contingent Value Rights Agreement”)
with U.S. Bank, National Association, as rights agent, in
favor of each tendering holder of Notes.
(vi) Vasovist
Transaction: Concurrently with the execution
of this Agreement, the Company shall provide to Xxxxxxx
Xxxx & Xxxxx LLP, as counsel to the Noteholders, fully
executed copies of the Purchase Agreement.
3
Confidential —
For Discussion and Settlement Purposes Only
Subject to Federal Rule of Evidence 408
(vii) Deposit of
Proceeds. The Company shall direct the Buyer
to deposit with U.S. Bank, National Association, as Escrow
Agent (the “Escrow Agent”), on the date
hereof in immediately available funds, the full amount of the
net proceeds to be received by the Company pursuant to the
Purchase Agreement, which amount shall not be less than
$17,000,000 (the “Net Proceeds”), and as
soon as practicable, but in no event later than three
(3) Business Days after the date hereof, the Company shall
deposit with the Escrow Agent in immediately available funds an
amount equal to $18,000,000 less the Net Proceeds. The amounts
deposited with the Escrow Agent pursuant to this
Section 2(a)(vii) will be used for the payment of the cash
portion of the Exchange Consideration to be disbursed as set
forth in Escrow Agreement.
(b) Notwithstanding anything to the contrary in this
Agreement, to the extent (i) in the Exchange Offer the
Company pays any consideration to any tendering holder of Notes
in addition to the Exchange Consideration, each Noteholder shall
receive such additional consideration in amount proportional to
the principal amount of Tender Notes tendered by such Noteholder
and/or
(ii) in the Consent Solicitation the Company pays any
consideration in exchange for any consent (including, without
limitation, any early consent fee), each Noteholder shall
receive such consideration in amount proportional to the
principal amount of Tender Notes to which such Noteholder has
given consent hereunder.
(c) In the event of a stock split, stock dividend or
distribution, or any change in the Common Stock by reason of a
stock split, reverse stock split, recapitalization, combination,
reclassification, readjustment, exchange of shares or the like,
the term “Exchange Consideration” shall
be deemed to refer to and include such shares as well as all
such stock dividends and distributions and any securities into
which or for which any or all of such shares may be changed or
exchanged.
3. Agreements of the
Noteholders. Subject to the terms and
conditions of this Agreement:
(a) Each Noteholder agrees with the Company, in connection
with the consummation of the Exchange Offer and the Consent
Solicitation and when solicited in accordance with applicable
securities law, to:
(i) tender (or cause to be tendered) its Tender Notes in
exchange for the amount of Exchange Consideration applicable to
such Tender Notes on or prior to the date on which the Exchange
Offer expires, in accordance with the terms thereof;
(ii) consent to adopt the Proposed Amendments on or prior
to the date on which the Consent Solicitation expires, in
accordance with the terms thereof; and
(iii) not withdraw or revoke (or cause not to be withdrawn
or revoked) any of the foregoing unless and until this Agreement
is terminated in accordance with its terms.
(b) Each Noteholder agrees, so long as this Agreement
remains in effect, not to Transfer any of its Tender Notes, in
whole or in part, unless the transferee agrees in writing to be
bound by the terms of this Agreement to the same extent as the
Tender Notes of a Noteholder hereunder. In the event that any
Noteholder Transfers any of the Tender Notes owned or
beneficially held as of the date hereof, as a condition
precedent to such Transfer, such Noteholder agrees to cause the
transferee to execute and deliver an acknowledgement, in the
form attached hereto as Exhibit E,
whereby such transferee agrees to be bound by the terms of this
Agreement. Such acknowledgement shall be delivered to the
Company immediately following the consummation of such Transfer,
and the Company shall deliver such acknowledgement to the Buyer
Parties immediately following the receipt thereof. Any Transfer
of Tender Notes to a person not party to this Agreement in
violation of this Section 3(b) shall be deemed void.
Notwithstanding the foregoing, any Noteholder may Transfer its
Tender Notes to an Affiliate or another Noteholder so long as
(i) such Tender Notes constitute Additional Notes pursuant
to Section 23 hereof and, as a result, become
subject to the terms of this Agreement, and (ii) the
transferring Noteholder delivers written notice of such Transfer
to the Company prior to or within two (2) Business Days
following such Transfer. Notwithstanding the foregoing, the
parties acknowledge that certain Noteholders may hold Tender
Notes in margin accounts and may continue to so hold; provided
that in no event shall this affect such Noteholders’
obligations under the terms of this Agreement.
4
Confidential —
For Discussion and Settlement Purposes Only
Subject to Federal Rule of Evidence 408
(c) So long as this Agreement remains in effect, no
Noteholder will enter into any voting agreement with any person
or entity with respect to any of its Tender Notes, grant any
person or entity any proxy (revocable or irrevocable) or power
of attorney with respect to any of its Tender Notes, deposit any
of its Tender Notes in a voting trust or otherwise enter into
any agreement or arrangement with any person or entity limiting
or affecting such Noteholder’s legal power, authority or
right to vote its Tender Notes and agree to the amendments to
the terms of the Exchange Offer, the Consent Solicitation or
this Agreement.
(d) Subject to the provisions of Section 28,
each Noteholder agrees that it will permit public disclosure,
including in a press release and in the documents filed with the
Commission for the Exchange Offer and the Consent Solicitation,
of this Agreement, including, but not limited to, the
commitments contained in this Section 3; provided,
however, that such Noteholders and its counsel shall be given a
reasonable opportunity to review and comment on any such
disclosure, and the Company shall give reasonable consideration
to any comments made by the Noteholders and their counsel. The
Company shall provide the Noteholders and their counsel with
(i) any comments or other communications, whether written
or oral, that the Company or its counsel may receive from time
to time from the Commission or its staff with respect to the
Exchange Documents promptly after receipt of those comments or
other communications and (ii) a reasonable opportunity to
participate in the response of the Company to those comments
that relate in any material respect to any of the Noteholders
and to provide comments on that response (to which reasonable
consideration shall be given).
(e) Each Noteholder further agrees, until the earlier of
the consummation of the Exchange Offer and Consent Solicitation
or the termination of this Agreement that it will not:
(i) object to, or otherwise commence or support any
proceeding or action to oppose, the Exchange Offer, the Consent
Solicitation or the other actions of the Company contemplated by
this Agreement and shall not take any action or otherwise
commence or support any action or proceeding that would
constitute a breach of any of its representations, warranties
and agreements set forth herein or would unreasonably delay the
consummation of the Exchange Offer or the Consent Solicitation
including, but not limited to (A) the filing of an
involuntary petition against the Company, or (B) taking any
action in connection with any default or Event of Default under
and as defined in the Indenture; or
(ii) directly or indirectly seek, solicit, support, or
encourage any other plan, sale, proposal, or offer of winding
up, liquidation, reorganization, merger, amalgamation,
consolidation, dissolution or restructuring of the Company.
(f) In addition, for so long as this Agreement has not been
terminated, each Noteholder shall refrain, in its capacity as a
Noteholder of Tender Notes, from directly or indirectly taking
any action, or permitting any of its affiliates, representatives
or agents from taking any action, that would materially impede,
interfere with, delay, postpone, discourage or materially and
adversely affect the consummation of the Exchange Offer and the
Consent Solicitation.
4. Amendments to the Exchange Offer and the
Consent Solicitation.
(a) The Company shall not:
(i) amend, modify, alter or waive any of the material terms
and conditions of the Exchange Offer or the Consent Solicitation
in a manner adverse to the Noteholders or otherwise reduce the
amount of cash or Common Stock to be paid in the Exchange Offer
per $1,000 principal amount of tendered Notes or otherwise take
or fail to take any action that would reasonably be expected to
impede, interfere with, delay, postpone, discourage or
materially and adversely affect the timely consummation of the
Exchange Offer or the Consent Solicitation;
(ii) extend the Exchange Offer or the Consent Solicitation
except to the extent required by applicable law, without the
prior written consent of the Required Noteholders;
(iii) modify the valid tender of the holders that hold, in
the aggregate, at least ninety-three percent (93%) of the
outstanding principal amount of the Notes in the Exchange Offer
or the consent of the holders that hold, in the
5
Confidential —
For Discussion and Settlement Purposes Only
Subject to Federal Rule of Evidence 408
aggregate, at least ninety-three percent (93%) of the
outstanding principal amount of the Notes in the Consent
Solicitation, without the prior written consent of the Required
Noteholders; or
(iv) reduce the percentage in principal amount of Notes set
forth in the definition of “Required Holders” that is
required for the consent or waiver of any provision of this
Agreement.
(b) Except as provided in Section 4(a), and to
the extent not requiring extension of the Exchange Offer or the
Consent Solicitation under applicable law, the Company may waive
any of the conditions to the Exchange Offer or the Consent
Solicitation.
5. Termination of Agreement.
(a) Notwithstanding anything to the contrary set forth in
this Agreement, unless the Exchange Offer and the Consent
Solicitation have been consummated as provided in this
Agreement, this Agreement and all of the obligations and
undertakings of the parties set forth in this Agreement shall
terminate and expire upon the earliest to occur of:
(i) mutual written consent of the Company and each
Noteholder;
(ii) without any action by the Company or any Noteholder,
if the Exchange Offer and the Consent Solicitation are not
consummated on or before May 11, 2009, provided that no
party may terminate this Agreement under this clause (ii)
if the failure to consummate the Exchange Offer or the Consent
Solicitation is the result of the material breach of this
Agreement by such party;
(iii) by the Required Noteholders, if the Exchange Offer
and the Consent Solicitation are not commenced on or before
April 9, 2009;
(iv) by the Required Noteholders, if the Company breaches
the provisions of Section 4;
(v) without action by the Company or any Noteholder, if the
Company commences, or an order for relief is entered against it,
in a case under Title 11 of the United States Code or the
Company shall otherwise be adjudicated bankrupt or insolvent
under applicable law;
(vi) without any action by the Company or any Noteholder,
if the Company makes an assignment for the benefit of creditors
or any proceeding relating to the Company under any
reorganization, arrangement, insolvency, readjustment of debt,
dissolution, liquidation or similar proceeding of any
jurisdiction is filed or commenced against the Company; or
(vii) without any action by either the Company or any
Noteholder, if (1) the Exchange Offer shall expire or be
terminated without the exchange of the requisite Notes and
(2) the Consent Solicitation shall expire or be terminated
without the Proposed Amendments being adopted.
(b) Notwithstanding the foregoing or any other provision of
this Agreement, neither the termination of this Agreement nor
any other circumstance shall relieve a party from liability for
the willful breach of its obligations hereunder.
(c) The provisions of this Section 5(c),
Sections 10, 12, 16, 17, 18, 19, 20, 25 and 26, and any
applicable definition of the capitalized terms used in any of
the foregoing sections shall survive any termination of this
Agreement.
6. Representations, Warranties and
Covenants.
(a) The Company represents and warrants to each Noteholder,
and each Noteholder represents and warrants to the Company as
follows:
(i) if an entity, it is duly organized, validly existing
and in good standing under the laws of the jurisdiction of its
organization and has all requisite corporate, partnership or
other power and authority to enter into each Transaction
Document to which it is a party and to carry out the
transactions contemplated by, and perform its respective
obligations under, each Transaction Document to which it is a
party;
6
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For Discussion and Settlement Purposes Only
Subject to Federal Rule of Evidence 408
(ii) the execution, delivery and performance by it of each
Transaction Document to which it is a party does not and shall
not (A) violate any provision of law, order, rule or
regulation applicable to it or any of its affiliates or its
certificate of incorporation or bylaws or other organizational
documents or those of any of its subsidiaries or
(B) conflict with, result in the breach of or constitute
(with due notice or lapse of time or both) a default under any
material contractual obligations to which it or any of its
affiliates is a party or under its certificate of incorporation,
bylaws or other governing instruments;
(iii) the execution, delivery and performance by it of each
Transaction Document to which it is a party does not and shall
not require any registration or filing with, the consent or
approval of, notice to, or any other action with respect to, any
Federal, state or other governmental authority or regulatory
body, except for (A) the registration under the Securities
Act contemplated by the Registration Rights Agreement and such
consents, approvals, authorizations, registrations or
qualifications as may be required under the state securities or
Blue Sky laws in connection with the issuance of the Exchange
Shares, (B) the filing with the Commission of a Tender
Offer Statement on Schedule TO with respect to the Exchange
Offer and the Consent Solicitation, including the exhibits
thereto, and (C) such other filings as may be necessary or
required by the Commission;
(iv) each Transaction Document to which it is a party has
been duly authorized, executed and delivered and, assuming the
due execution and delivery of such Transaction Document by each
of the other parties thereto, each such Transaction Document is
the legally valid and binding obligation of it, enforceable
against it in accordance with its terms, except as
enforceability may be limited or affected by applicable
bankruptcy, insolvency, moratorium, reorganization or other laws
of general application relating to or affecting creditors’
rights generally; and
(v) it has been represented by counsel in connection with
the Transaction Documents and the transactions contemplated by
the Transaction Documents.
(b) Each of the Noteholders further represents and warrants
to the Company that:
(i) as of the date of this Agreement, such Noteholder
(together with its Affiliates) is the beneficial owner of, or
the investment adviser or manager for the beneficial owners of,
the aggregate principal amount of Tender Notes set forth
opposite such Noteholder’s name on
Schedule A hereto, which represents
all of the Notes held by such Noteholder (other than with
respect to the Notes representing an aggregate principal amount
of $655,000 held by certain discretionary accounts managed by
Xxxxxx, Xxxxxx & Company, L.P. which Xxxxxx,
Xxxxxx & Company, L.P. agrees to use commercially
reasonable efforts to tender in the Exchange), with the
requisite power and authority to vote and dispose of such Tender
Notes, and such Tender Notes are owned free and clear of any
liens, encumbrances, equities or claims, other than those under
securities laws or any ordinary course claims, including,
without limitation, in connection with pledges in connection
with bona fide margin accounts or other loan or financing
agreement secured by the Tender Notes;
(ii) as of the date of this Agreement and through the date
of acquisition of the Tender Notes pursuant to the Exchange
Offer, such Noteholder has full legal power, authority and right
(A) to exchange its Tender Notes then held of record or
beneficially owned by it and (B) to consent to the Proposed
Amendments with respect to its Tender Notes then held of record
or beneficially owned by it, in each case without the consent,
approval of, or any other action on the part of, any other
person or entity; and such Noteholder has not entered into any
voting agreement (other than this Agreement) with any person or
entity with respect to any of its Tender Notes, granted to any
person or entity any of its Tender Notes, deposited any of its
Tender Notes in a voting trust or entered into any arrangement
or agreement with any person or entity limiting or affecting its
legal power, authority or right to vote such Tender Notes on any
matter; and
(iii) such Noteholder has reviewed, or has had the
opportunity to review, with the assistance of professional and
legal advisors of its choosing, sufficient information necessary
for such Noteholder to decide to (A) exchange its Tender
Notes pursuant to the Exchange Offer and (B) consent to the
Proposed Amendments pursuant to the Consent Solicitation.
7
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For Discussion and Settlement Purposes Only
Subject to Federal Rule of Evidence 408
(c) The Company further represents, warrants, covenants and
agrees to the Noteholders as follows:
(i) as of the date of this Agreement, the capitalization of
the Company is as set forth in the Company’s Annual Report
on Form 10-K
filed with the Commission on March 13, 2009 (the
“Annual Report”), other than
(A) exercises of outstanding options, warrants and other
rights after the date set forth in the Annual Report and
(B) grants of options, warrants and other rights after the
date set forth in the Annual Report;
(ii) that the Exchange Shares are duly authorized and, upon
issuance will be duly and validly issued and free from all
taxes, liens and charges with respect to the issue thereof and
the Exchange Shares shall be fully paid and nonassessable;
(iii) that the Company has reserved from its duly
authorized capital stock the maximum number of Exchange Shares
issuable in the Exchange Offer;
(iv) from and after the date hereof until the consummation
or termination of the Exchange Offer and the Consent
Solicitation, the Company shall not issue any additional shares
of Common Stock, or any options, warrants and other rights
(including pursuant to convertible securities) to acquire Common
Stock or shares of any other capital of the Company or any
subsidiary of the Company, except (A) pursuant to options,
warrants and other rights (including pursuant to convertible
securities) outstanding on the date of this Agreement, and
(B) for grants or awards under the Company’s existing
equity incentive plan in accordance with the Company’s past
practice;
(v) the Company shall comply with all applicable law in
connection with the Exchange Offer and Consent Solicitation;
(vi) assuming that the information set forth in the
questionnaire, in the form of Exhibit F
attached hereto (the
“Questionnaire”) delivered by each
Noteholder to the Company on or prior to the date hereof (the
“Completed Questionnaire”) is true and
correct as of the consummation of the Exchange Offer,
(A) such Noteholder will not be an affiliate (as defined
under Rule 144 of the Securities Act) of the Company
following the consummation of the Exchange Offer, (B) the
Exchange Shares will be issued to such Noteholder without any
restrictive legend by electronic delivery at the balance account
at The Depository Trust Company specified by such
Noteholder and (C) subject to the provisions of
Section 9 below, to the Company’s knowledge the
Exchange Shares will be freely saleable without restriction or
limitation pursuant to Rule 144 and without the requirement
to be in compliance with Rule 144(c)(1) (or any successor
thereto) promulgated under the Securities Act; and
(vii) the Company shall cause all shares of Common Stock
issued in the Exchange Offer to be listed on each securities
exchange or other securities market, if any, on which the Common
Stock is then listed.
(d) For the purposes of Rule 144 of the Securities
Act, the Company acknowledges that the holding period of the
Exchange Shares may be tacked onto the holding period of the
Tender Notes, and the Company agrees not to take any position
contrary to this Section 6(d). The Company agrees to
take all actions, including, without limitation, the issuance by
its legal counsel of any necessary legal opinions, necessary to
issue the Exchange Shares without restriction and not containing
any restrictive legend without the need for any action by any
Noteholder provided that such Noteholder’s Completed
Questionnaire is true and correct as of the consummation of the
Exchange Offer.
(e) The Company shall use its commercially reasonable
efforts to file the reports required to be filed by it under the
Securities Act and the Exchange Act in a timely manner and, if
at any time the Company is not required to file such reports, it
will, upon the written request of any Noteholder, make publicly
available other information as necessary to permit sales of such
Noteholder’s Exchange Shares pursuant to Rule 144.
7. Disclosure of Transactions and Other
Material Information. On or before
9:30 a.m., New York City time, on the second
(2nd)
Business Day following the date of this Agreement, the Company
shall issue a press release and file a Current Report on
Form 8-K
describing the terms of the transactions contemplated by the
Transaction Documents and the Purchase Agreement in the form
required by the Exchange Act and attaching the material
transaction documents (including, without limitation, this
Agreement, the Registration Rights Agreement, the Contingent
Value Rights Agreement, the Proposed Amendments and the Purchase
Agreement as exhibits to such filing (including all attachments,
the
8
Confidential —
For Discussion and Settlement Purposes Only
Subject to Federal Rule of Evidence 408
“8-K
Filing”). The Company acknowledges and agrees that from
and after the filing of the
8-K Filing
with the SEC, no Noteholder shall be in possession of any
material, nonpublic information received from the Company, any
of its Subsidiaries or any of their respective officers,
directors, employees or agents. The Company shall not, and shall
cause each of its Subsidiaries and its and each of their
respective officers, directors, employees and agents, not to,
provide any Noteholder with any material, nonpublic information
regarding the Company or any of its Subsidiaries from and after
the filing of the
8-K Filing
with the Commission without the express written consent of such
Noteholder. Subject to the foregoing and Section 28,
neither the Company, nor its Subsidiaries shall issue any press
releases or any other public statements with respect to the
transactions contemplated hereby; provided, however, that the
Company shall be entitled, without the prior approval of any
Noteholder, to make any press release or other public disclosure
with respect to such transactions (i) in substantial
conformity with the
8-K Filing
and contemporaneously therewith and (ii) as is required by
applicable law and regulations. Without the prior written
consent of such Noteholder, and except as contemplated by the
preceding sentence, neither the Company nor any of its
Subsidiaries or affiliates shall disclose the name of a
Noteholder in any announcement or release.
8. Reserved.
9. Lock-Up. Each Noteholder
hereby agrees that from the date of consummation of the Exchange
Offer and ending on the date that is ninety (90) days after
the date of consummation of the Exchange Offer (the
“Lock-Up
Period”), such Noteholder will not, without the
prior written consent of the Company, directly or indirectly,
(i) offer, sell, assign, transfer, pledge, contract to
sell, or otherwise dispose of, any shares of Common Stock issued
to such Noteholder in connection with the Exchange Offer (such
shares, the “Exchange Shares”), or
(ii) enter into any swap, hedge or similar agreement or
arrangement that transfers, in whole or in part, the economic
risk of ownership of the Exchange Shares; provided, however,
that (A) a Noteholder shall be permitted to transfer its
Exchange Shares without obtaining such prior consent to any
Affiliate of the Noteholder or to any holder of equity interests
in, or any general or limited partner or member of, such
Noteholder, provided that prior to any such transfer any such
transferee agrees in writing to be bound by the terms of this
Section 9, (B) a Noteholder shall be permitted
to transfer its Exchange Shares pursuant to a merger, tender
offer or exchange offer or other business combination,
acquisition of assets or similar transaction or change of
control of the Company and (C) a Noteholder shall receive
the benefits of any release or modification of this
Section 9 for any other Noteholder subject to this Section.
Notwithstanding the foregoing, each Noteholder shall be
permitted to transfer its respective Exchange Shares in the
following amounts and on the following dates during the
Lock-Up
Period: (1) beginning thirty (30) days after the
consummation of the Exchange Offer, up to 33.33% of such
Exchange Shares and (2) beginning sixty (60) days
after the consummation of the Exchange Offer, up to 66.66% of
such Exchange Shares. Notwithstanding anything to the contrary
in this Agreement, the Company shall be entitled to take all
reasonable and necessary actions to enforce compliance with the
provisions of this Section 9, including, without
limitation, the issuance of a stop-transfer instruction.
10. Consent and Acknowledgement Regarding
Vasovist Transaction.
(a) Each Noteholder hereby acknowledges and agrees that it
will not take a position contrary to the position that the sale
by the Company of the Purchased Assets (as defined in the
Purchase Agreement) and the consummation of the transactions
contemplated by the Purchase Agreement (collectively, the
“Vasovist Transaction”) does not
(i) constitute a Change in Control (as defined in the
Indenture) or a Designated Event (as defined in the Indenture)
under the Indenture, the Notes or any related documents
(collectively, the “Indenture
Documents”), (ii) constitute a breach of, and
is not otherwise in contravention of, any provision of the
Indenture Documents (including, without limitation,
Sections 7.1 and 13.1 of the Indenture), or
(iii) require or result in an obligation to offer to
repurchase or assume the indebtedness relating to or evidenced
by the Indenture Documents as a result of the consummation of
the Vasovist Transaction.
(b) Each Noteholder hereby acknowledges that it has no
reason to believe based on the provisions of the Purchase
Agreement that it has, and shall not assert, any claims, causes
of action, rights or demands whatsoever, or of any kind or
nature, whether known or unknown, actual or potential
(collectively, “Claims”) against the
Buyer Parties under the Indenture Documents, or under any
applicable law or in equity, including without limitation, in
the nature of any
9
Confidential —
For Discussion and Settlement Purposes Only
Subject to Federal Rule of Evidence 408
fraudulent conveyance, preference claim or similar Claims,
arising from or related to the consummation of the Vasovist
Transaction.
(c) Each Noteholder (on behalf of itself, each of its
affiliates and each successor and assign of the foregoing)
hereby fully, finally, absolutely, unconditionally and
irrevocably releases, acquits and forever discharges each of the
Buyer Parties from any and all past, present and future claims,
actions, causes of action, suits, rights, obligations, promises,
liabilities, debts, agreements, damages, injuries, losses,
costs, expenses (including legal fees and disbursements) and
demands whatsoever, of any kind, character, description or
nature whatsoever, whether known or unknown to such Noteholder,
suspected or unsuspected, reported or unreported, fixed or
contingent, accrued or unaccrued, liquidated or unliquidated,
foreseen or unforeseen, actual or potential, whether arising
prior to, as of, or following, the consummation of the Vasovist
Transaction, whether grounded in law or equity or sounding in
tort or contract or otherwise (including without limitation in
the nature of any fraudulent conveyance, preference claim or
similar claims), that such Noteholder ever had, owned or held or
claimed to have, own or hold, now has, owns or holds or claims
to have, own or hold, or in the future may have, own or hold or
claim to have, own, or hold, against any of the Buyer Parties,
arising directly or indirectly out of, based upon, or in any way
related to or in connection with, the Vasovist Transaction.
11. Good Faith. Each of the
signatories to this Agreement agrees to cooperate in good faith
with each other to facilitate the performance by the parties of
their respective obligations hereunder and the purposes of this
Agreement.
12. Amendments and
Modifications. Except as otherwise expressly
provided in this Agreement, this Agreement shall not be amended,
changed, supplemented, waived or otherwise modified or
terminated except by instrument in writing signed by each of the
parties hereto. Notwithstanding the foregoing, Section 10,
Section 25 (other than the first sentence thereof) and this
sentence shall not be amended, modified or supplemented without
the prior written consent of the Buyer Parties, which consent
may be withheld or delayed for any reason in their sole
discretion, and none of the other Buyer Party Provisions shall
be amended, modified or supplemented without the prior written
consent of the Buyer Parties solely to the extent that such
amendments, modifications or supplements would adversely affect
the Buyer Parties’ rights to enforce Section 10 of
this Agreement.
13. No Waiver; Release Upon Consummation of the
Exchange Offer and the Consent
Solicitation. Each of the signatories to this
Agreement expressly acknowledges and agrees that, except as
expressly provided in this Agreement, nothing in this Agreement
is intended to, or does, in any manner waive, limit, impair or
restrict the ability of any party to this Agreement to protect
and preserve all of its rights, remedies and interests,
including, without limitation, with respect to its claims
against and interests in the Company. In connection with the
Exchange Offer and the Consent Solicitation, and upon
consummation thereof, the holders of Notes who tender Notes in
the Exchange Offer and have such Notes so tendered accepted for
payment therefor by the Company shall, at such time, release
claims against the Company and others Persons as and to the
extent set forth in the Exchange Offer and the Consent
Solicitation materials in respect of their Tender Notes.
14. Further Assurances. Each
of the signatories to this Agreement hereby further covenants
and agrees to execute and deliver all further documents and
agreements and take all further action that may be reasonably
necessary or desirable in order to enforce and effectively
implement the terms and conditions of this Agreement, the
Exchange Offer and the Consent Solicitation.
15. Complete Agreement. The
Transaction Documents, including the Schedules, Annexes and
Exhibits thereto, constitute the complete agreement between the
signatories to this Agreement with respect to the subject matter
hereof and supersedes all prior and contemporaneous
negotiations, agreements and understandings with respect to the
subject matter hereof. The provisions of the Transaction
Documents shall be interpreted in a reasonable manner to effect
the intent of the signatories to this Agreement.
16. Notices. All notices,
requests, demands, claims and other communications hereunder
shall be in writing and shall be (a) transmitted by hand
delivery, (b) mailed by first class, registered or
certified mail, postage prepaid,
10
Confidential —
For Discussion and Settlement Purposes Only
Subject to Federal Rule of Evidence 408
(c) transmitted by overnight courier, or
(d) transmitted by telecopy, and in each case, if to the
Company, at the address set forth below:
EPIX Pharmaceuticals, Inc.
0 Xxxxxxx Xxxx
Xxxxxxxxx, XX 00000
Attention: Chief Financial Officer
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
0 Xxxxxxx Xxxx
Xxxxxxxxx, XX 00000
Attention: Chief Financial Officer
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
with a copy to:
Xxxxxxx Procter LLP
Exchange Place
00 Xxxxx Xxxxxx
Xxxxxx, XX 00000
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
Attention: Xxxxxx X. Xxxx, Esq.
Exchange Place
00 Xxxxx Xxxxxx
Xxxxxx, XX 00000
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
Attention: Xxxxxx X. Xxxx, Esq.
if to a Noteholder, to the address set forth on the signature
pages to this Agreement, with a copy to the Noteholders’
counsel:
Xxxxxxx Xxxx & Xxxxx LLP
000 Xxxxx Xxxxxx
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
Attention: Xxxxxxx X. Xxxxx, Esq.
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
Attention: Xxxxxxx X. Xxxxx, Esq.
if to the Buyer Parties, to the address set forth below, with a
copy to the Buyer Parties’ counsel:
Lantheus Medical Imaging, Inc.
000 Xxxxxx Xxxx Xxxx
Xxxxx Xxxxxxxxx, XX 00000
Attn: Xxxxxxx Xxxxx, Esq.
Facsimile: (000) 000-0000
000 Xxxxxx Xxxx Xxxx
Xxxxx Xxxxxxxxx, XX 00000
Attn: Xxxxxxx Xxxxx, Esq.
Facsimile: (000) 000-0000
Weil, Gotshal & Xxxxxx LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxx Xxxxxxxx, Esq.
Facsimile: (000) 000-0000
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxx Xxxxxxxx, Esq.
Facsimile: (000) 000-0000
Notices mailed or transmitted in accordance with the foregoing
shall be deemed to have been given upon receipt.
17. Governing Law. This
Agreement, the rights of the parties and all claims, actions,
causes of action, suits, litigation, controversies, hearings,
charges, complaints or proceedings arising in whole or in part
under or in connection herewith, will be governed by and
construed in accordance with the domestic substantive laws of
the State of New York, without giving effect to any choice or
conflict of law provision or rule that would cause the
application of the laws of any other jurisdiction.
18. Jurisdiction; Waiver of Jury
Trial. By its execution and delivery of this
Agreement, each of the signatories to this Agreement irrevocably
and unconditionally agrees that any legal action, suit or
proceeding against it with respect to any matter under or
arising out of or in connection with this Agreement or for
recognition or enforcement of any judgment rendered in any such
action, suit or proceeding, shall be brought exclusively in a
federal or state court of
11
Confidential —
For Discussion and Settlement Purposes Only
Subject to Federal Rule of Evidence 408
competent jurisdiction in the State of New York in the Borough
of Manhattan. By its execution and delivery of this Agreement,
each of the signatories to this Agreement irrevocably accepts
and submits itself to the jurisdiction of a court of competent
jurisdiction in the State of New York, as applicable under the
preceding sentence, with respect to any such action, suit or
proceeding. Each of the signatories to this Agreement waives any
right it may have, and agrees not to request, trial by jury in
any suit, action or proceeding with respect to this Agreement
and the transactions contemplated hereby.
19. Consent to Service of
Process. Each of the signatories to this
Agreement irrevocably consents to service of process by mail at
the address listed with the signature of each such party on the
signature pages to this Agreement. Each of the signatories to
this Agreement agrees that its submission to jurisdiction and
consent to service of process by mail is made for the express
benefit of each of the other signatories to this Agreement.
Nothing contained herein shall be deemed to limit in any way any
right to serve process in any manner permitted by law.
20. Specific Performance. It
is understood and agreed by each of the signatories to this
Agreement that money damages would not be a sufficient remedy
for any breach of this Agreement by any party and each
non-breaching party shall be entitled to specific performance,
injunctive, recessionary or other equitable relief as remedy for
any such breach, without the requirement to post any bond or
security.
21. Headings. The headings
of the sections, paragraphs and subsections of this Agreement
are inserted for convenience only and shall not affect the
interpretation hereof.
22. Successors and
Assigns. This Agreement is intended to bind
and inure to the benefit of the signatories to this Agreement
and their respective successors, permitted assigns, heirs,
executors, administrators and representatives. The agreements,
representations and obligations of the undersigned parties under
this Agreement are, in all respects, several and not joint.
23. Additional Notes. If,
after the date hereof and prior to expiration of the Exchange
Offer, a Noteholder acquires (including in a transaction with
another Noteholder permitted by Section 3(b) hereof)
beneficial or record ownership of any additional Notes for
itself or any account or fund managed by such Noteholder which
is not restricted in its ability to tender any such additional
Notes in accordance with the terms of this Agreement and the
Exchange Offer (any such Notes, “Additional
Notes”), such Noteholder shall promptly
notify the Company of such acquisition and the provisions of
this Agreement shall be applicable to such Additional Notes as
if such Additional Notes had been Tender Notes owned by such
Noteholder as of the date hereof. The provisions of the
immediately preceding sentence shall be effective with respect
to Additional Notes without action by any person or entity
immediately upon the acquisition by such Noteholder of
beneficial or record ownership of such Additional Notes.
24. Counterparts. This
Agreement may be executed in one or more counterparts, each of
which shall be deemed an original and all of which shall
constitute one and the same agreement. Delivery of an executed
counterpart of a signature page by facsimile shall be as
effective as delivery of a manually executed counterpart.
25. No Third-Party
Beneficiaries. Except as provided below, this
Agreement shall be solely for the benefit of the signatories to
this Agreement, and no other Person or entity shall be a
third-party beneficiary hereof. Each of the Noteholders and the
Company acknowledges and agrees that, notwithstanding anything
to the contrary in this Agreement, the Buyer Parties have relied
on the Buyer Party Provisions and are express third party
beneficiaries thereof with the express right and ability to
enforce the obligations of each of the Noteholders and the
Company thereunder directly against each of the Noteholders and
the Company to the full extent thereof; provided however, that
the Buyer Parties shall constitute third party beneficiaries to
Section 12 for purposes of the previous sentence solely
in the event and to the extent that any amendments, changes or
supplements to or waivers, modifications or terminations of the
Buyer Party Provisions would adversely affect (i) Section
10 in any way or (ii) any of the other Buyer Party
Provisions in a way that adversely affects the Buyer
Party’s ability to enforce Section 10. The Company shall
not in any way hinder, compromise or delay the Buyer
Parties’ right and ability to enforce the obligations of
any of the Noteholders under the Buyer Party Provisions directly
against such Noteholders to the extent set forth in the
immediately preceding sentence (including, for the sake of
clarity, the proviso thereto).
12
Confidential —
For Discussion and Settlement Purposes Only
Subject to Federal Rule of Evidence 408
26. Severability. If any
provision of this Agreement is found by any court of competent
jurisdiction to be invalid or unenforceable, the provision that
would otherwise be prohibited, invalid or unenforceable shall be
deemed amended to apply to the fullest extent that it would be
valid and enforceable, and the invalidity or unenforceability of
such provision shall not affect the validity of the remaining
provisions of this Agreement so long as this Agreement as so
modified continues to express, without material change, the
original intentions of the parties as to the subject matter
hereof and the prohibited nature, invalidity or unenforceability
of the provision(s) in question does not substantially impair
the respective expectations or reciprocal obligations of the
parties or the practical realization of the benefits that would
otherwise be conferred upon the parties. The parties will
endeavor in good faith negotiations to replace the prohibited,
invalid or unenforceable provision(s) with a valid provision(s),
the effect of which comes as close as possible to that of the
prohibited, invalid or unenforceable provision(s).
27. Consideration. It is
hereby acknowledged by each of the signatories to this Agreement
that no consideration (other than the obligations of the other
parties under this Agreement and the other Exchange Documents)
has been paid or shall be due or paid to the parties for their
agreement to support the Exchange Offer and Consent Solicitation
in accordance with the terms and conditions of this Agreement.
28. Disclosure of Individual
Holdings. Unless required by applicable law,
the Company shall not disclose the face amount of Tender Notes
held by a Noteholder without the prior written consent of such
Noteholder; provided, however, that if such disclosure is
required by law, the Company shall afford such Noteholder a
reasonable opportunity to review and comment upon any such
disclosure prior to the release or publication thereof. The
foregoing shall not prohibit the Company from disclosing the
aggregate face amount of the Tender Notes held by the
Noteholders as a group.
29. Independent Nature of Each
Noteholder’s Obligations and Rights. The
obligations of each Noteholder hereunder are several and not
joint with the obligations of any other Noteholder hereunder,
and no Noteholder shall be responsible in any way for the
performance of the obligations of any other Noteholder
hereunder. Nothing contained herein or in any other agreement or
document, and no action taken by any Noteholder pursuant hereto
or thereto, shall be deemed to constitute the Noteholders as a
group, a partnership, an association, a joint venture or any
other kind of entity, or create a presumption that the
Noteholders are in any way acting in concert or as a group with
respect to such obligations or the transactions contemplated by
this Agreement. Each Noteholder shall be entitled to protect and
enforce its rights, including, without limitation, the rights
arising out of this Agreement, and it shall not be necessary for
any other Noteholder to be joined as an additional party in any
proceeding for such purpose.
30. Fees and Expenses. The
Company shall pay all of its expenses incurred in connection
with the preparation, execution and delivery of the Transaction
Documents and related documents and the consummation of the
transactions contemplated thereby.
[SIGNATURES
BEGIN ON NEXT PAGE]
13
IN WITNESS WHEREOF, the parties hereto have caused this
Restructuring Support Agreement to be duly executed as of the
date first set forth above.
THE COMPANY:
By: |
/s/ Xxxxx
Xxxxx, Ph.D.
|
Name: Xxxxx Xxxxx, Ph.D.
Title: | Chief Executive Officer |
NOTEHOLDERS:
Name of Holder:
|
Xxxxxx, Xxxxxx & Company, L.P., as investment manager for one or more discretionary accounts By: Xxxxxx, Xxxxxx & Company, Incorporated, its General Partner |
|
Signatory:
|
/s/ Xxxxxx
X. Day |
|
Xxxxxx X. Day |
||
Title:
|
Assistant General Counsel |
|
Address For Notice: | ||
Xxxxxx, Xxxxxx & Company, L.P. Xxx Xxxxxxxxx Xxxxxx Xxxxxx, XX 00000 Facsimile: (000) 000-0000 Telephone: (000) 000-0000 Attention: Xxxxxxx X. Xxxxx |
||
[SIGNATURE PAGES TO RESTRUCTURING SUPPORT AGREEMENT]
14
NOTEHOLDERS
(CONTINUED):
Name of Holder:
|
Pioneer Funds — US High Yield (LUX) GE Singapore Life Insurance Fund Pioneer High Yield Fund ING Pioneer High Yield Portfolio Pioneer High Yield VCT Portfolio |
|
By: Pioneer Investment Management, Inc., its Advisor
|
||
Signatory:
|
/s/ Xxxxxxx X. Xxxxxx | |
Xxxxxxx X. Xxxxxx | ||
Title:
|
Senior Vice President | |
Address For Notice: | ||
Pioneer Investment Management 00 Xxxxx Xxxxxx Xxxxxx, XX 00000 Facsimile: (000) 000-0000 Telephone: (000) 000-0000 Attention: Xxxxx Xxxxxx, CFA |
||
[SIGNATURE PAGES TO RESTRUCTURING SUPPORT AGREEMENT]
15
NOTEHOLDERS
(CONTINUED):
Name of Holder:
|
Highbridge International LLC | |
By: Highbridge Capital Management, LLC,
as Trading Advisor. |
||
Signatory:
|
/s/ Xxxx Xxxxxxxx |
|
Xxxx Xxxxxxxx |
||
Title:
|
Managing Director |
|
Address For Notice: | ||
Highbridge Capital Management 0 Xxxx 00xx Xxxxxx, 00xx Xxxxx Xxx Xxxx, Xxx Xxxx 00000 Facsimile: (000) 000-0000 Telephone: (000) 000-0000 Attention: Xxxxxxxx Xxxxxxx |
||
[SIGNATURE PAGES TO RESTRUCTURING SUPPORT AGREEMENT]
16
NOTEHOLDERS (CONTINUED): |
Name of Holder:
|
Xxxxxx Convertible Income-Growth Trust | |
Xxxxxx High Income Securities Fund | ||
Xxxxxx Income Strategies Fund | ||
By: Xxxxxx Investment Management, LLC
|
||
Signatory:
|
/s/ Xxxxx X. Xxxxx |
|
Xxxxx X. Xxxxx |
||
Title:
|
Senior Vice President |
|
Address For Notice: | ||
Xxxxxx Investments Xxx Xxxx Xxxxxx Xxxxxx Xxxxxx, XX 00000 Facsimile: (617) 760-1625Telephone: (000) 000-0000 Attention: General Counsel |
Each of the Xxxxxx funds identified on this signature page shall
be referred to herein as a “Fund”. Under this
Agreement, each Fund is acting on its own behalf separately from
any other Fund and neither jointly nor jointly and severally
with any other Fund or any other person. A copy of the
Declaration of Trust of each Fund is on file with the Secretary
of State of the Commonwealth of Massachusetts and notice is
given that this Agreement is executed on behalf of the trustees
of each Fund as trustees and not individually and that the
obligations of this Agreement are not binding on any of the
trustees or officers or shareholders individually, but are
binding only on the assets and property of each Fund with
respect to its obligations hereunder.
17
Name of Holder:
|
Franklin & Xxxxxxxx College
LGT Capital Invest (SC3) Limited - U.S. High Yield Convertible |
|
By: The Xxxxxx Advisory Company, LLC
|
||
Signatory:
|
/s/ Xxxxx X. Xxxxx |
|
Xxxxx X. Xxxxx |
||
Title:
|
Senior Vice President |
|
Address For Notice: | ||
Xxxxxx Investments Xxx Xxxx Xxxxxx Xxxxxx Xxxxxx, XX 00000 Facsimile: (617) 760,1625 Telephone: (000) 000-0000 Attention: General Counsel |
||
[SIGNATURE PAGES TO RESTRUCTURING SUPPORT AGREEMENT]
18
Confidential —
For Discussion and Settlement Purposes Only
Subject to Federal Rule of Evidence 408
SCHEDULE A
Noteholder and Face Amount of Notes to be Tendered
Face Amount of Notes to be |
||||
Name
|
Tendered | |||
Xxxxxx, Xxxxxx & Company, Incorporated (as investment
manager for one or more discretionary accounts)
|
$ | 25,667,000 | ||
Pioneer Investment Management, Inc., (as advisor on behalf of
entities listed on its signature page hereto)
|
$ | 33,000,000 | ||
Highbridge International LLC
|
$ | 13,099,000 | ||
Xxxxxx Investment Management, LLC and The
|
||||
Xxxxxx Advisory Company, LLC, (as investment manager on behalf
of their respective client accounts)
|
$ | 10,778,000 | ||
Total
|
$ | 82,544,000 |
Schedule A
EXHIBITS
TO THE RESTRUCTURING SUPPORT AGREEMENT
TO THE RESTRUCTURING SUPPORT AGREEMENT
Exhibit A: Proposed Amendments
Exhibit B: Purchase Agreement
Exhibit C: Form of Registration Rights Agreement
Exhibit D: Form of Contingent Value Rights Agreement
Exhibit E: Form of Acknowledgement of Transfer
Exhibit F: Form of Noteholder Questionnaire
EXHIBIT E
TO THE RESTRUCTURING SUPPORT AGREEMENT
TO THE RESTRUCTURING SUPPORT AGREEMENT
Form of Acknowledgement of Transfer
0 Xxxxxxx Xxxx
Xxxxxxxxx, XX 00000
Attn:
[ ]
Ladies and Gentlemen:
Reference is made to that certain Restructuring Support
Agreement, dated as of April 6, 2009 (the
“Agreement”), by and among EPIX
Pharmaceuticals, Inc. (the “Company”)
and certain beneficial owners of (or investment managers or
advisors for accounts that own) the 3.00% Convertible
Senior Notes due June 15, 2024 (the
“Notes”) of the Company.
[Name of the transferor] intends to transfer
[insert amount] in aggregate principal amount of
Notes to the undersigned.
The undersigned acknowledges and agrees that the foregoing
[Notes] will be transferred to the undersigned
subject to the terms and conditions of the Agreement and that
the undersigned shall be bound by the terms and conditions of
the Agreement as to the foregoing Notes as a Noteholder
thereunder. In furtherance of the foregoing, as a condition to
such transfer, by signing below the undersigned hereby affirms
each of the representations, warranties, covenants and
agreements of the Noteholders contained in the Agreement.
Very truly yours,
[Transferee]
By: |
|
Name: |
Title: |