CONTINGENT VALUE RIGHTS AGREEMENT
Exhibit
(d)(1)(C)
CONTINGENT VALUE RIGHTS AGREEMENT (this
“Agreement”) dated as of
[ ],
2009, by and among EPIX Pharmaceuticals, Inc., a Delaware
corporation (the “Company”), and
U.S. Bank National Association, a national banking
association organized under the laws of the United States, as
Rights Agent (the “Rights Agent”), in
favor of each person (a “Holder”) who
from time to time holds one or more contingent value rights (the
“CVRs”) to receive contingent payments,
in the amounts and subject to the terms and conditions set forth
herein.
RECITALS
WHEREAS, the Holders are being issued CVRs pursuant to an
exchange (the “Exchange”) for the
Company’s 3.00% Convertible Senior Notes due
June 15, 2024 (the “Notes”) as
provided in the tender offer statement on the Company’s
Schedule TO filed with the Commission (as defined below) on
April 7, 2009; and
WHEREAS, the Company, pursuant to the Exchange, agreed
(a) to the allocation of (i) a cash payment of
$180.00, (ii) 339 shares of the Company’s common
stock, par value $0.01 per share, and (iii) one
(1) CVR for each $1,000 of aggregate principal amount of
the Notes tendered by Holders in the Exchange, each such CVR
payable in an amount equal to the CVR Payment Amount (as defined
below) and (b) to enter into this Agreement with the Rights
Agent in favor of each Holder.
AGREEMENT
NOW THEREFORE, in consideration of the mutual promises and
obligations contained herein, the parties agree as follows:
ARTICLE I
DEFINITIONS
DEFINITIONS
1.1. Definitions. As used in
this Agreement, the following terms will have the following
respective 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
management and policies of such Person whether through holding
beneficial ownership interests in such other Person, by contract
or otherwise.
“Agreement” is defined in the Preamble.
“Board of Directors” means the board of
directors of the Company.
“Board Resolution” means a copy of a
resolution certified by the secretary or an assistant secretary
of the Company to have been duly adopted by the Board of
Directors and to be in full force and effect on the date of such
certification, and delivered to the Rights Agent.
“Business Day” means any day that is not
a Saturday, a Sunday or a day on which banks in the State of New
York or in the State in which the Rights Agent is located are
generally closed for business.
“Closing Date” means the date of
consummation of the Exchange.
“Code” means the Internal Revenue Code
of 1986, as amended from time to time.
“Commission” means the Securities and
Exchange Commission, or any other federal agency at the time
administering the Securities Act or the Exchange Act.
“Company” is defined in the Preamble.
“CVRs” is defined in the Preamble.
“CVR Payment Amount” means an amount per
CVR equal to (a) the Fair Market Value paid to any
Non-Tendering Holder for each $1,000 of aggregate principal
amount outstanding of the Notes tendered by such Non-Tendering
Holder in connection with the CVR Payment Event, minus
(b) $180.00 plus the Fair Market Value of 339 shares
of common stock, minus (c) all aggregate CVR Payment
Amounts per CVR previously received by such Holder. For the
avoidance of doubt, in no event shall the total of all CVR
Payment Amounts, when aggregated with the Fair Market Value of
the consideration received in the Exchange for each $1,000
principal amount of Notes, exceed $1,000.00. The CVR Payment
Amount shall be payable, at the Company’s option,
(i) in cash or (ii) in the same form and type of
consideration paid to such Non-Tendering Holder in connection
with the CVR Payment Event. In the event the Company elects to
pay the CVR Payment Amount in accordance with clause (ii)
above and the consideration paid consists of a combination of
cash and property other than cash, the CVR Payment Amount shall
be paid by the Company in the same proportion of such
consideration paid to such Non-Tendering Holder in connection
with the CVR Payment Event.
“CVR Payment Date” means the date set
forth in Section 2.4(f) on which the CVR Payment
Amount is to be paid by the Rights Agent to the Holders.
“CVR Payment Event” means any exchange,
redemption, repurchase, prepayment or similar event by the
Company on account of, or with respect to, the Notes held by any
Non-Tendering Holder prior to the applicable Termination Date
and which results in aggregate cash or non-cash payments to such
Non-Tendering Holder having a fair market value (as set forth in
the definitive agreement executed by the Company and the other
parties in connection with the CVR Payment Event) in excess of
the sum of (a) $180, (b) the lower of (i) $170
and (ii) the Exchange Issuance Price (as defined below) and
(c) the amount of any prior CVR Payment Amounts paid to a
Holder for each $1,000 of aggregate principal amount outstanding
of the Notes tendered by such Non-Tendering Holder, other than
an exchange, redemption, repurchase or payment made solely as a
result of a Designated Event (as defined in the Indenture). For
purposes of this definition, notwithstanding the definition of
Designated Event (as set forth in the Indenture), a Change in
Control (as defined in the Indenture) that occurs on or prior to
the date that is three (3) months after the Closing Date
shall be deemed a CVR Payment Event hereunder.
“CVR Payment Compliance Certificate” is
defined in Section 2.4(a) of this Agreement.
“CVR Payment Non-Compliance Certificate”
is defined in Section 2.4(b) of this
Agreement.
“CVR Register” is defined in
Section 2.3(b) of this Agreement.
“DTC” means The Depository
Trust Company.
“Exchange” is defined in the Recitals.
“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.
“Fair Market Value” means (a) with
respect to cash, the amount of cash payments, (b) with
respect to shares of common stock of the Company, (i) if
the common stock of the Company is traded on the NASDAQ Global
Market or NASDAQ Capital Market as of the date of determination,
each share of common stock will be valued at a price equal to
the greater of book value or the closing bid price of such share
on the NASDAQ Global Market or NASDAQ Capital Market, as
applicable, as of the Closing Date (such price, the
“Exchange Issuance Price”) and
(ii) if the common stock is not traded on the NASDAQ Global
Market or NASDAQ Capital Market as of the date of determination,
the fair market value of such property as set forth in the
definitive agreement executed by the Company and the other
parties in connection with the CVR Payment Event, and
(c) with respect to property other than cash or common
stock, the fair market value of such property as set forth in
the definitive agreement executed by the Company and the other
parties in connection
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with the CVR Payment Event; provided, that, such
determination is reasonable and has been determined in good
faith. For purposes of clause (b)(i) above, in the event
(1) Rule 4350(i) of the NASDAQ Rules or any
interpretation thereof is amended to provide a different
threshold for purposes of determining whether shares of stock
are issued at a discount, (2) Rule 4350(i) of the
NASDAQ Rules or any interpretation thereof is eliminated for
purposes of determining whether shares of stock are issued at a
discount or (3) NASDAQ applies Rule 4350(i) of the
NASDAQ Rules to the Exchange in a manner that would allow a
lower threshold for determining whether the shares of Common
Stock issued in the Exchange (including those issued under the
CVR) are issued at a discount, then the Fair Market Value shall
be the greater of (x) the amount determined in accordance
with clause (b)(ii) above and (y) the amount determined in
accordance with such revised threshold pursuant to (1),
(2) and (3) above.
“Financing” means any sale by the
Company of equity or equity-linked securities or other
securities convertible into equity.
“Governmental Authority” means any
federal, state, municipal, local or any foreign government,
governmental, regulatory or administrative authority, agency or
commission or any court, tribunal, or judicial or arbitral body.
“Holder” is defined in the Preamble.
“Indenture” means the 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,
2007, as may be further amended from time to time.
“Notes” is defined in the Recitals.
“Non-Tendering Noteholder” means any
holder of Notes who does not tender Notes in the Exchange.
“Officer’s Certificate” means a
certificate signed by the chief executive officer, president,
chief financial officer, any vice president, the controller, the
treasurer or the secretary, in each case of the Company, in his
or her capacity as such an officer, and delivered to the Rights
Agent.
“Permitted Transfer” means: a transfer
of CVRs (a) on death by will or intestacy;
(b) pursuant to a court order; (c) made by operation
of law (including a consolidation or merger) or without
consideration in connection with the dissolution, liquidation or
termination of any corporation, limited liability company,
partnership or other entity; (d) in the case of CVRs held
in book-entry or other similar nominee form, from a nominee to a
beneficial owner, to the extent allowable by DTC; (e) to
any Affiliate of the Holder or to any holder of equity interests
in, or any general or limited partner or member of, such Holder;
or (f) as provided in Section 2.5.
“Person” means any individual,
partnership, corporation, company, association, trust, joint
venture, limited liability company, unincorporated organization,
entity or division, or any government, governmental department
or agency or political subdivision thereof.
“Qualified Financing” means one or more
Financings consummated by the Company after the Closing Date
which has resulted in aggregate gross cash proceeds of at least
$10,000,000 to the Company after the Closing Date.
“Rights Agent” is defined in the
Preamble.
“Securities Act” means the Securities
Act of 1933, 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.
“Termination Date” means the earlier to
occur of (a) a Qualified Financing and (b) nine
(9) months after the Closing Date.
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ARTICLE II
CONTINGENT VALUE RIGHTS
CONTINGENT VALUE RIGHTS
2.1. CVRs. Each CVR represents the
right to receive contingent payments equal to the CVR Payment
Amount. Each Holder shall be entitled to one (1) CVR for
each $1,000 of aggregate principal amount of the Notes tendered
by such Holder in the Exchange.
2.2. Nontransferable. The CVRs
shall not be sold, assigned, transferred, pledged, encumbered or
in any other manner transferred or disposed of, in whole or in
part, other than through a Permitted Transfer or in connection
with pledges in connection with bona fide margin accounts or
other loan or financing agreement secured by the CVRs.
2.3. No Certificate; Registration; Registration of
Transfer; Change of Address.
(a) The CVRs shall not be evidenced by a certificate or
other instrument.
(b) The Rights Agent shall keep a register (the
“CVR Register”) for the purpose of
registering CVRs and transfers of CVRs as herein provided. The
CVR Register will initially show one position for
Cede & Co. representing all the CVRs held by DTC on
behalf of the street holders of Notes tendered by such holders
in the Exchange. The Rights Agent will have no responsibility
whatsoever directly to the street holders with respect to
transfers of CVRs unless and until such CVRs are transferred
into the name of such street holders in accordance with
Section 2.2, upon which the Rights Agent’s sole
responsibility to such holders shall be to maintain the CVR
Register and comply with the payment procedures as expressly
provided in Section 2.4 herein. In the event the
Company elects to pay all or a portion of a CVR Payment Amount
in cash, with respect to any payments to be made under
Section 2.4 below, the Rights Agent will disburse
the payment (i) in the case of CVRs held by DTC as the
registered holder on behalf of the street holders of Notes
tendered by such holders in the Exchange, by sending one lump
payment to DTC or (ii) in the case of CVRs held in the name
of a beneficial owner, by sending the payment to such beneficial
owner, provided that such beneficial owner has been added to the
CVR Register pursuant to Section 2.3(c) and has provided
the Rights Agent its address and, if applicable, wire
instructions. In the event the Company elects to pay all or a
portion of a CVR Payment Amount in property other than cash,
with respect to any payments to be made under
Section 2.4 below, the Company will, or will cause
Computershare Trust Company, as the transfer agent for the
common stock of the Company to, as applicable, disburse the
payment (A) in the case of CVRs held by DTC as the
registered holder on behalf of the street holders of Notes
tendered by such holders in the Exchange, by sending one global
security registered in the name of or held by DTC or its nominee
or (B) in the case of CVRs held in the name of a beneficial
owner or in the case of payment in a form other than a DTC
eligible security, by sending the payment
and/or
security, as applicable, to such beneficial owner.
The Rights Agent will have no responsibilities whatsoever with
regards to distribution of payments by DTC to such street
holders. The Rights Agent shall have no liability for the
actions or inactions of Computershare Trust Company
hereunder.
(c) Subject to the restrictions on transferability set
forth in Section 2.2, every request made to transfer
a CVR must be in writing and accompanied by a written instrument
of transfer in the form attached hereto as
Exhibit A, duly executed by the Holder thereof, his
attorney duly authorized in writing, personal representative or
survivor and, in the case of a transfer to a person that is not
a DTC participant, by the DTC participant from which the CVRs
are being transferred. Upon receipt of such written notice, the
Rights Agent shall, subject to its reasonable determination that
the transfer instrument is in proper form, register the transfer
of the CVRs in the CVR Register. All duly transferred CVRs
registered in the CVR Register shall be the valid obligations of
the Company, evidencing the same right, and shall entitle the
transferee to the same benefits and rights under this Agreement,
as those held by the transferor. No transfer of a CVR shall be
valid until registered in the CVR Register, and any transfer not
duly registered in the CVR Register will be void ab initio. Any
transfer or assignment of the CVRs shall be without charge
(other than the cost of any transfer tax) to the Holder. In the
case of a transfer to a Person that is not a DTC participant,
the Rights Agent shall direct DTC to update the position of the
DTC participant from which such Permitted Transfer was made.
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(d) A Holder may make a written request to the Rights Agent
to change such Holder’s address of record in the CVR
Register. The written request must be duly executed by the
Holder. Upon receipt of such written notice, the Rights Agent
shall promptly record the change of address in the CVR Register.
2.4. Payment Procedures.
(a) If a CVR Payment Event shall occur, then within ten
(10) Business Days following the occurrence of such CVR
Payment Event the Company shall deliver to the Rights Agent
(i) a certificate (the “CVR Payment Compliance
Certificate”) certifying the date of the
satisfaction of the CVR Payment Event and that the Holders are
entitled to receive the applicable CVR Payment Amount as
calculated and set forth in such certificate and (ii) the
aggregate amount of the CVR Payment Amount payable to the
Holders.
(b) If a CVR Payment Event has not occurred prior to the
Termination Date, then, no later than five (5) Business
Days after the Termination Date, the Company shall deliver to
the Rights Agent a certificate (the “CVR Payment
Non-Compliance Certificate”) certifying that no CVR
Payment Event has occurred, and as a result the Holders are not
entitled to receive any CVR Payment Amount.
(c) The Rights Agent shall, within three (3) Business
Days of receipt from the Company of a CVR Payment Compliance
Certificate or CVR Payment Non-Compliance Certificate, as
applicable, send each Holder at its address listed in the CVR
Register a copy of each certificate delivered by the Company
pursuant to this Section 2.4.
(d) Upon written notice by any Holder or Holders of at
least 20% in the aggregate of the outstanding CVRs received by
the Rights Agent within ten (10) Business Days after
distribution by the Rights Agent of a CVR Payment Compliance
Certificate or a CVR Payment Non-Compliance Certificate (the
“Objection Period”), the Rights Agent
shall forward such notice to the Company, which notice must
certify that such Holder or Holders hold at least 20% in the
aggregate of the outstanding CVRs, and further shall,
(i) specify that such Holder or Holders object to the
determination of the Company (A) that a CVR Payment Event
did not occur or (B) of the aggregate amount of the CVR
Payment Amount payable to the Holders, as applicable and
(ii) state in reasonable detail the basis upon which such
Holder or Holders have determined that (i) a CVR Payment
Event has occurred on or prior to the Termination Date or
(ii) the Company’s determination of the aggregate
amount of the CVR Payment Amount is incorrect (a
“Notice of Objection”). Any dispute
arising from a Notice of Objection related to a CVR Payment
Non-Compliance Certificate shall be resolved by the Company and
Holder(s) in accordance with Section 6.6 and any
dispute arising from a Notice of Objection related to a CVR
Payment Compliance Certificate shall be resolved by the Company
and Holder(s) in accordance with the procedures set forth in
Section 6.7, which decision shall be binding on the
parties hereto and the Holders. The Company and Holder(s) shall
provide the Rights Agent with joint written direction specifying
the resolution of any dispute pursuant to this
Section 2.4(d), and the Rights Agent shall act in
accordance with such direction.
(e) If a Notice of Objection with respect to a CVR Payment
Non-Compliance Certificate has not been received by the Rights
Agent within the Objection Period, then the Holders shall have
no right to receive the CVR Payment Amount, and the Company and
the Rights Agent shall have no further obligations with respect
to the CVR Payment Amount.
(f) If the Company delivers a CVR Payment Compliance
Certificate to the Rights Agent or if a CVR Payment Amount is
determined to be payable pursuant to Section 2.4(d) above,
the Company shall establish a CVR Payment Date that is within
twenty (20) calendar days of the date of the CVR Payment
Compliance Certificate or the date of final determination
pursuant to Section 2.4(d) above, as applicable, and shall
notify the Rights Agent of such date in writing. In the event
the Company elects to pay all or a portion of a CVR Payment
Amount in cash, at least three (3) Business Days prior to
such CVR Payment Date, the Company shall cause the applicable
cash portion of such CVR Payment Amount to be delivered to the
Rights Agent, who will in turn, on the CVR Payment Date, or if
such date is not a Business Day, the following Business Day,
distribute the applicable cash portion of such CVR Payment
Amount to the Holders in accordance with
Section 2.3(b) (the amount to which each Holder is
entitled to receive will be calculated by the Company and based
on the applicable cash portion of such CVR Payment Amount
multiplied by the number of CVRs held
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by such Holder as reflected on the CVR Register) by check mailed
to the address of each Holder as reflected in the CVR Register
as of the close of business on the last Business Day prior to
such CVR Payment Date. In the event the Company elects to pay
all or a portion of a CVR Payment Amount in property other than
cash, on the CVR Payment Date, or if such date is not a Business
Day, the following Business Day, the Company shall distribute or
cause to be distributed by Computershare Trust Company, as
the transfer agent for the common stock of the Company to, as
applicable, the applicable non-cash portion of such CVR Payment
Amount to the Holders in accordance with
Section 2.3(b) (the amount to which each Holder is
entitled to receive will be calculated by the Company and based
on the applicable non-cash portion of such CVR Payment Amount
multiplied by the number of CVRs held by such Holder as
reflected on the CVR Register) by property other than cash
mailed to the address of each Holder as reflected in the CVR
Register as of the close of business on the last Business Day
prior to such CVR Payment Date. Any funds held by the Rights
Agent hereunder shall remain uninvested.
(g) Tax Withholding.
(i) The Rights Agent shall be entitled to deduct and
withhold, or cause to be deducted or withheld, from each CVR
Payment Amount otherwise payable pursuant to this Agreement,
such amounts as it is required to deduct and withhold with
respect to the making of such payment under the Code, or any
provision of state, local or foreign tax law. To the extent that
amounts are so withheld and paid over to or deposited with the
relevant Governmental Authority, such withheld amounts shall be
treated for all purposes of this Agreement as having been paid
to the Holder in respect of which such deduction and withholding
was made.
(ii) Each Holder shall deliver to the Rights Agent and the
Company two properly completed and duly executed copies of
either U.S. Internal Revenue Service
Form X-0,
X-0XXX,
X-0XXX or
W-8IMY or
any subsequent versions thereof or successors thereto, in each
case claiming complete exemption from U.S. Federal
withholding and U.S. Federal backup withholding tax, as
applicable, with respect to payments of the CVR Payment Amount.
In addition, in the case of a Holder claiming exemption from
U.S. Federal withholding tax under Section 871(h) or
881(c) of the Code, such Holder hereby represents that such
Holder is not a bank for purposes of Section 881(c) of the
Code, is not a 10-percent shareholder (within the meaning of
Section 871(h)(3)(B) of the Code) of the Company and is not
a controlled foreign corporation related to the Company (within
the meaning of Section 864(d)(4) of the Code), and such
Holder agrees that it shall promptly notify the Rights Agent and
the Company in the event any such representation is no longer
accurate. Such forms shall be delivered by each Holder on or
before the date of this Agreement, or upon becoming a Holder
pursuant to Section 2.3(c). In the event that any
previously supplied tax forms become invalid or obsolete, such
Holder shall notify the Rights Agent and the Company of the
invalidity or obsolescence of such forms, and to the extent
permitted by then applicable law, such Holder shall deliver
updated or new tax forms. In addition, each Holder shall deliver
such forms within 20 days after receipt of a written
request therefor from the Rights Agent or the Company.
(iii) Should the Rights Agent become liable for the payment
of taxes, including withholding taxes relating to any funds,
including interest and penalties thereon, held by it pursuant to
this Agreement or any payment made hereunder, the Company agrees
to reimburse the Rights Agent for such taxes, interest and
penalties upon demand.
(h) Any portion of any CVR Payment Amount that remains
undistributed to the Holders for six (6) months after any
CVR Payment Date shall be delivered by the Rights Agent to the
Company and any Holder shall thereafter look only to the Company
for payment of such CVR Payment Amount, but shall have no
greater rights against the Company than may be accorded to
general unsecured creditors of the Company under applicable law,
and the Rights Agent shall have no further duties or obligations
hereunder.
(i) Neither the Company nor the Rights Agent shall be
liable to any person in respect of any CVR Payment Amount
delivered to a public official pursuant to any applicable
abandoned property, escheat or similar law. If any CVR Payment
Amount has not been paid prior to two (2) years after the
applicable CVR Payment Date (or immediately prior to such
earlier date on which the CVR Payment Amount would otherwise
escheat to or become the property of any Governmental
Authority), any such CVR Payment Amount shall, to
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the extent permitted by applicable law, become the property of
the Company, free and clear of all claims or interest of any
person previously entitled thereto.
2.5. Ability to Abandon the
CVR. The Holder of a CVR may at any time at its
option abandon all of its remaining rights in such CVR by
transferring the CVR to the Company without consideration
therefor. Nothing in this Section 2.5 is intended to
prohibit the Company from offering to acquire CVRs for
consideration in its sole discretion; provided that any such
offer shall be made to all the Holders of CVRs under
substantially similar terms.
ARTICLE III
THE RIGHTS AGENT
THE RIGHTS AGENT
3.1. Certain Duties And
Responsibilities. The Rights Agent and its
directors, officers and employees shall not have any liability
to Holders and their permitted successors and assigns hereunder
for any actions taken or not taken in connection with this
Agreement. The Rights Agent and its directors, officers and
employees shall not have any liability to the Company for any
actions taken or not taken in connection with this Agreement,
except to the extent of its willful misconduct, bad faith or
gross negligence. No provision of this Agreement shall require
the Rights Agent to expend or risk its own funds or otherwise
incur any financial liability in the performance of any of its
duties hereunder or in the exercise of any of its rights or
powers. In no event shall the Rights Agent or its directors,
officers and employees be liable to a Holder, the Company or any
third party for special, indirect or consequential damages, or
lost profits, arising in connection with this Agreement.
3.2. Certain Rights of Rights
Agent. The Rights Agent undertakes to perform
such duties and only such duties as are specifically set forth
in this Agreement, and no implied covenants or obligations shall
be read into this Agreement against the Rights Agent. In
addition:
(a) the Rights Agent may rely and shall be protected in
acting or refraining from acting upon any resolution,
certificate, statement, instrument, opinion, report, notice,
request, direction, consent, order or other paper or document
believed by it to be genuine and to have been signed or
presented by the proper party or parties;
(b) whenever the Rights Agent shall deem it desirable that
a matter be proved or established prior to taking, suffering or
omitting any action hereunder, the Rights Agent may, in the
absence of bad faith, gross negligence or willful misconduct on
its part, rely upon an Officer’s Certificate;
(c) the Rights Agent may engage and consult with counsel of
its selection and the written advice of such counsel or any
opinion of counsel shall be full and complete authorization and
protection in respect of any action taken, suffered or omitted
by it hereunder in good faith and in reliance thereon;
(d) the permissive rights of the Rights Agent to do things
enumerated in this Agreement shall not be construed as a duty;
(e) the Rights Agent shall not be required to give any note
or surety in respect of the execution of such powers or
otherwise in respect of the premises;
(f) the Company agrees to indemnify the Rights Agent for,
and hold the Rights Agent harmless against, any loss, liability,
claim, demands, suits or expense arising out of or in connection
with the Rights Agent’s duties under this Agreement,
including the costs and expenses (including reasonable
attorney’s fees) of defending the Rights Agent against any
claims, charges, demands, suits or loss, unless such loss shall
have been determined by a court of competent jurisdiction to be
a result of the Rights Agent’s gross negligence, bad faith
or willful or intentional misconduct; and
(g) the Company agrees (i) to pay the fees and
expenses of the Rights Agent in connection with this Agreement
as agreed upon in writing by the Rights Agent and the Company,
and (ii) to reimburse the Rights Agent for all taxes and
governmental charges, reasonable expenses and other charges of
any kind and nature incurred by the Rights Agent in the
execution of this Agreement (other than taxes measured
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by the Rights Agent’s net income). The Rights Agent shall
also be entitled to reimbursement from the Company for all
reasonable and necessary out-of-pocket expenses (including
reasonable attorneys’ fees) paid or incurred by it in
connection with the administration by the Rights Agent of its
duties hereunder.
3.3. Resignation And Removal; Appointment of
Successor.
(a) The Rights Agent may resign at any time by giving
written notice thereof to the Company specifying a date when
such resignation shall take effect, which notice shall be sent
at least sixty (60) days prior to the date so specified.
The Company shall have the right to remove the Rights Agent at
any time by a Board Resolution specifying a date when such
removal shall take effect. Notice of such removal shall be given
by the Company to the Rights Agent, which notice shall be sent
at least sixty (60) days prior to the date so specified.
(b) If the Rights Agent shall resign, be removed or become
incapable of acting, the Company, by a Board Resolution, shall
promptly appoint a qualified successor Rights Agent. The
successor Rights Agent so appointed shall, forthwith upon its
acceptance of such appointment in accordance with this
Section 3.3(b), become the successor Rights Agent.
(c) The Company shall give notice of each resignation and
each removal of a Rights Agent and each appointment of a
successor Rights Agent by mailing written notice of such event
by first-class mail, postage prepaid, to the Holders as their
names and addresses appear in the CVR Register. Each notice
shall include the name and address of the successor Rights
Agent. If the Company fails to send such notice within ten
(10) days after acceptance of appointment by a successor
Rights Agent, the successor Rights Agent shall cause the notice
to be mailed at the expense of the Company.
3.4. Acceptance of Appointment By
Successor. Every successor Rights Agent appointed
hereunder shall execute, acknowledge and deliver to the Company
and to the retiring Rights Agent an instrument accepting such
appointment and a counterpart of this Agreement, and thereupon
such successor Rights Agent, without any further act, deed or
conveyance, shall become vested with all the rights, powers,
trusts and duties of the retiring Rights Agent; but, on request
of the Company or the successor Rights Agent, such retiring
Rights Agent shall execute and deliver an instrument
transferring to such successor Rights Agent all the rights,
powers and trusts of the retiring Rights Agent.
ARTICLE IV
COVENANTS
COVENANTS
4.1. List of Holders. The Company
shall furnish or cause to be furnished to the Rights Agent in
such form as the Company receives from its transfer agent (or
other agent performing similar services for the Company), the
names and addresses of the Holders within ten (10) Business
Days of the date hereof.
4.2. Payment of CVR Payment
Amount. The Company shall duly and promptly
deposit with the Rights Agent for payment to each Holder the
applicable CVR Payment Amount, if any, in the manner provided
for in Section 2.4 and in accordance with the terms
of this Agreement.
4.3. Ability to Make Prompt
Payment. The Company shall not enter into any
agreement that would restrict the Company’s right to be
able to promptly make payments to the Holders under this
Agreement or otherwise restrict the Company’s ability to
fund such payments.
ARTICLE V
AMENDMENTS
AMENDMENTS
5.1. Amendments Without Consent of Holders.
(a) Without the consent of any Holders or the Rights Agent,
the Company, when authorized by a Board Resolution, at any time
and from time to time, may enter into one or more amendments
hereto, to evidence the succession of another Person to the
Company and the assumption by any such successor of the
covenants
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of the Company herein as provided in Section 6.4;
provided that no such amendment shall affect the rights,
immunities, duties or indemnities of the Rights Agent without
its prior written consent.
(b) Without the consent of any Holders, the Company, when
authorized by a Board Resolution, and the Rights Agent, in the
Rights Agent’s sole and absolute discretion, at any time
and from time to time, may enter into one or more amendments
hereto, for any of the following purposes:
(i) to evidence the succession of another Person as a
successor Rights Agent and the assumption by any successor of
the covenants and obligations of the Rights Agent herein;
(ii) to add to the covenants of the Company such further
covenants, restrictions, conditions or provisions as the Board
of Directors and the Rights Agent shall consider to be for the
protection of the Holders; provided that, in each case, such
provisions shall not adversely affect the interests of the
Holders;
(iii) to cure any ambiguity, to correct or supplement any
provision herein that may be defective or inconsistent with any
other provision herein, or to make any other provisions with
respect to matters or questions arising under this Agreement;
provided that, in each case, such provisions shall not adversely
affect the interests of the Holders;
(iv) as may be necessary or appropriate to ensure that the
CVRs are not subject to registration under the Securities Act or
the Exchange Act; provided that such provisions shall not
adversely affect the interests of the Holders; or
(v) any other amendments hereto for the purpose of adding,
eliminating or changing any provisions of this Agreement, unless
such addition, elimination or change is adverse to the interests
of the Holders.
(c) Promptly after the execution by the Company and the
Rights Agent of any amendment pursuant to the provisions of this
Section 5.1, the Company shall mail (or cause the
Rights Agent to mail) a notice thereof by first class mail to
the Holders at their addresses as they shall appear on the CVR
Register, setting forth in general terms the substance of such
amendment.
5.2. Amendments With Consent of Holders.
(a) Subject to Section 5.1 (which amendments
pursuant to Section 5.1 may be made without the
consent of the Holders), with the consent of the Holders of not
less than a majority of the outstanding CVRs, whether evidenced
in writing or taken at a meeting of the Holders, the Company,
when authorized by a Board Resolution, and the Rights Agent may
enter into one or more amendments hereto for the purpose of
adding, eliminating or changing any provisions of this
Agreement, even if such addition, elimination or change is
materially adverse to the interest of the Holders.
(b) Promptly after the execution by the Company and the
Rights Agent of any amendment pursuant to the provisions of this
Section 5.2, the Company shall mail (or cause the
Rights Agent to mail) a notice thereof by first class mail to
the Holders at their addresses as they shall appear on the CVR
Register, setting forth in general terms the substance of such
amendment.
(c) No consideration shall be offered or paid by or on
behalf of the Company to any Holder to amend or consent to a
waiver or modification of any provision of any of this Agreement
or the CVRs unless the same consideration also is offered to all
other Holders.
5.3. Execution of Amendments. In
executing any amendment permitted by this Article V,
the Rights Agent shall be entitled to receive, and shall be
fully protected in relying upon, an opinion of counsel selected
by the Company stating that the execution of such amendment is
authorized or permitted by this Agreement. The Rights Agent may,
but is not obligated to, enter into any such amendment that
affects the Rights Agent’s own rights, privileges,
covenants or duties under this Agreement or otherwise.
5.4. Effect of Amendments. Upon the
execution of any amendment under this Article V,
this Agreement shall be modified in accordance therewith, such
amendment shall form a part of this Agreement for all purposes
and every Holder shall be bound thereby.
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ARTICLE VI
OTHER PROVISIONS OF GENERAL APPLICATION
OTHER PROVISIONS OF GENERAL APPLICATION
6.1. Notices To Rights Agent and the
Company. Any request, demand, authorization,
direction, notice, consent, waiver or other document provided or
permitted by this Agreement shall be sufficient for every
purpose hereunder if in writing and sent by facsimile
transmission, delivered personally, or by certified or
registered mail (return receipt requested and first-class
postage prepaid) or sent by a nationally recognized overnight
courier (with proof of service), addressed as follows:
(a) if to the Rights Agent, addressed to it at
U.S. Bank, National Association, Xxx Xxxxxxx Xxxxxx,
00xx Xxxxx, Xxxxxx, XX 00000, Attention: Xxxxx Xxxxx, or at
any other address previously furnished in writing to the Holders
and the Company by the Rights Agent; or
(b) if to the Company, addressed to it at EPIX
Pharmaceuticals, Inc., 0 Xxxxxxx Xxxx, Xxxxxxxxx, XX 00000,
Attention: Chief Financial Officer, or at any other address
previously furnished in writing to the Rights Agent and the
Holders by the Company, with a copy to Xxxxxxx Procter LLP,
Exchange Place, 00 Xxxxx Xxxxxx, Xxxxxx, XX 00000, Attention:
Xxxxxx X. Xxxx, Esq.
6.2. Notice To Holders. Where this
Agreement provides for notice to Holders, such notice shall be
sufficiently given (unless otherwise herein expressly provided)
if in writing and mailed, first-class postage prepaid, to each
Holder affected by such event, at his, her or its address as it
appears in the CVR Register, not later than the latest date, and
not earlier than the earliest date, prescribed for the giving of
such notice with a copy, which shall not constitute notice, to
Xxxxxxx Xxxx & Xxxxx LLP, 000 Xxxxx Xxxxxx, Xxx Xxxx,
XX 00000, Attention: Xxxxxxx X. Xxxxx, Esq. In any case
where notice to Holders is given by mail, neither the failure to
mail such notice, nor any defect in any notice so mailed, to any
particular Holder shall affect the sufficiency of such notice
with respect to other Holders.
6.3. Effect of Headings. The
headings contained in this Agreement are for convenience
purposes only and will not in any way affect the meaning or
interpretation hereof.
6.4. Successors and Assigns. This
Agreement will be binding upon and inure to the benefit of the
successors and assigns of the respective parties hereto.
6.5. Benefits of Agreement. Nothing
in this Agreement, express or implied, shall give to any Person
(other than the parties hereto, the Holders and their permitted
successors and assigns hereunder) any benefit or any legal or
equitable right, remedy or claim under this Agreement or under
any covenant or provision herein contained, all such covenants
and provisions being for the sole benefit of the parties hereto,
the Holders and their permitted successors and assigns.
6.6. 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. Each party hereby irrevocably submits
to the non-exclusive jurisdiction of the state and federal
courts sitting in The City of New York, Borough of Manhattan,
for the adjudication of any dispute hereunder or in connection
herewith or with any transaction contemplated hereby or
discussed herein, and hereby irrevocably waives, and agrees not
to assert in any suit, action or proceeding, any claim that it
is not personally subject to the jurisdiction of any such court,
that such suit, action or proceeding is brought in an
inconvenient forum or that the venue of such suit, action or
proceeding is improper. Each party hereby irrevocably waives
personal service of process and consents to process being served
in any such suit, action or proceeding by mailing a copy thereof
to such party at the address for such notices to it under this
Agreement and agrees that such service shall constitute good and
sufficient service of process and notice thereof. Nothing
contained herein shall be deemed to limit in any way any right
to serve process in any manner permitted by law. EACH PARTY
HEREBY IRREVOCABLY WAIVES ANY RIGHT IT MAY HAVE, AND AGREES NOT
TO REQUEST, A JURY TRIAL FOR THE ADJUDICATION OF ANY DISPUTE
HEREUNDER OR IN CONNECTION HEREWITH OR ARISING OUT OF THIS
AGREEMENT OR ANY TRANSACTION CONTEMPLATED HEREBY.
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6.7. Dispute of the CVR Payment
Amount. If any Holder and the Company are unable
to agree upon the determination or calculation of the CVR
Payment Amount within three (3) Business Days of receipt of
the applicable Notice of Objection, within two (2) Business
Days thereafter the Company will submit via facsimile the
disputed determination of the CVR Payment Amount to an
independent, reputable investment bank selected by the Company
and approved by such Holder. The Company shall cause the
investment bank to perform the determinations or calculations
and notify the Company and the Holder of the results no later
than ten (10) Business Days from the time it receives the
disputed determinations or calculations. The cost of the
investment bank shall be paid by the party whose estimate of the
disputed CVR Payment Amount differs most greatly from the
determination of the investment bank. Such investment
bank’s determination or calculation, as the case may be,
shall be binding upon all parties absent demonstrable error.
6.8. Legal Holidays. In the event
that the CVR Payment Date shall not be a Business Day, then,
notwithstanding any provision of this Agreement to the contrary,
any payment required to be made in respect of the CVRs on such
date need not be made on such date, but may be made on the next
succeeding Business Day with the same force and effect as if
made on the CVR Payment Date.
6.9. Severability Clause. 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 broadest 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).
6.10. Counterparts. This Agreement
may be executed in any number of counterparts, each of which
will be deemed an original, but all of which together will
constitute but one and the same instrument.
6.11. Termination. This Agreement
shall be terminated and of no force or effect, the parties
hereto shall have no liability hereunder, and no payments shall
be required to be made on the Termination Date. The provisions
of Section 3.2 and 3.3 hereof shall survive the termination
of this Agreement or the resignation or removal of the Rights
Agent.
6.12. Entire Agreement. This
Agreement, together with any documents, instruments and
certificates explicitly referred to herein, constitutes the
entire agreement among the parties hereto with respect to the
subject matter hereof and supersedes any and all prior
discussions, negotiations, proposals, undertakings,
understandings and agreements, whether written or oral, with
respect thereto. No provision of this Agreement may be amended
except by a written agreement executed by the parties and in
compliance with the terms of Article V.
[REMAINDER
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IN WITNESS WHEREOF, the parties have caused this Contingent
Value Rights Agreement to be executed by their duly authorized
representative as of the date first above written.
THE
COMPANY:
| By: |
|
Name:
| Title: |
THE
RIGHTS AGENT:
U.S. BANK NATIONAL ASSOCIATION,
as Rights Agent
| By: |
|
Name:
| Title: |
[SIGNATURE
PAGES TO CONTINGENT VALUE RIGHTS AGREEMENT]
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Exhibit A
Permitted
Transfer Form
Reference is made to the Contingent Value Rights Agreement dated
as of
[ ],
2009 by and between EPIX Pharmaceuticals, Inc., a Delaware
corporation (the “Company”), and
U.S. Bank National Association, a national banking
association organized under the laws of the United States, as
Rights Agent (the “CVR Agreement”).
Capitalized terms not all capitalized terms used but not
otherwise defined herein will have the meanings ascribed thereto
in the CVR Agreement.
The undersigned hereby represents, in his, her or its capacity
listed below, that
[ # ]
CVRs (the “Transferred CVRs”) shall be
transferred from the undersigned’s account held by [NAME
OF DTC PARTICIPANT] to [NAME OF TRANSFEREE] in
reliance on the following Permitted Transfer (check one):
| o |
1. Transfer upon death of the beneficial holder, by will or
intestacy (evidence of which is attached to this form)
|
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| o |
2. Transfer pursuant to a court order (a copy of which is
attached to this form)
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| o |
3. Transfer made by operation of law (including a
consolidation or merger) or without consideration in connection
with the dissolution, liquidation or termination of any
corporation, limited liability company, partnership or other
entity (evidence of which is attached to this form)
|
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| o |
4. Transfer of CVRs held in book-entry or other similar
nominee form that are being transferred from a nominee to a
beneficial owner, to the extent allowable by DTC
|
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| o |
5. Transfer of CVRs to the Company without consideration
therefore.
|
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| o |
6. Transfer to an Affiliate of the Holder or to a holder of
equity interests in, or a general or limited partner or member
of, such Holder.
|
The undersigned hereby provides the following information to the
Rights Agent regarding the transferee:
Name:
| Address: |
Telephone:
Fax:
E-Mail:
Wire Instructions (if any payment pursuant to a CVR is made in
cash and via wire transfer):
The information contained in this Permitted Transfer Form is
true and correct in all respects.
Name:
Capacity (if
applicable):
1 of 2
CONSENT
OF DTC PARTICIPANT
The DTC participant that currently holds the Transferred CVRs
must sign the following acknowledgement:
[NAME OF DTC PARTICIPANT] hereby acknowledges and agrees
that, in connection with the transfer of the Transferred CVRs to
the beneficial owner of the Transferred CVRs, DTC will reduce
the number of CVRs held in book-entry or other similar nominee
form by [NAME OF DTC PARTICIPANT] by the number of
Transferred CVRs.
[NAME OF DTC PARTICIPANT]
By:
Its:
2 of 2
