NOTE PURCHASE AGREEMENT
Exhibit 10.2
EXECUTION COPY
This Note Purchase Agreement (the “Agreement”) is entered into, effective as of July 9, 2009,
between EPIX Pharmaceuticals, Inc. (the “Company”) and Xxxxxx, Xxxxxx & Company, L.P. (“Holder”).
RECITALS
A. Holder is the beneficial owner of, or the investment adviser or manager for the beneficial
owners of, an aggregate of $215,000 original principal amount of the Company’s 3.00% Convertible
Senior Notes due June 15, 2024, CUSIP 00000XXX0 in the form of beneficial interests in a global
note held by the Depository Trust Company (“DTC”) plus accrued but unpaid interest thereon (the
“Notes”).
B. The Company wishes to purchase from Holder, and Holder wishes to sell to the Company, the
Notes for $74,413.65 in cash (the “Cash Consideration”).
C. In consideration of the premises and the mutual covenants and undertakings set forth
herein, and for other good and valuable consideration, the receipt and sufficiency of which is
hereby acknowledged, the parties hereby agree as follows:
AGREEMENT
1. Purchase of Notes.
(a) Upon the third trading day following the date of this Agreement (the “Closing”),
Holder will transfer and deliver (or cause to be delivered) the Notes to the Company via
electronic delivery and write-down of Holder’s position in the Notes at DTC.
(b) On Closing, the Company will deliver (or cause to be delivered) to the Holder the
Cash Consideration to Holder’s bank account as identified on Exhibit A in exchange
for the Notes plus all claims arising out of or relating to the Notes, including but not
limited to any accrued but unpaid interest thereon.
(c) The Company and Holder agree that the issuance of the Cash Consideration in
exchange for the Notes constitutes satisfaction in full of any and all amounts (including
without limitation principal, interest and any other fees) owed by the Company to Holder in
connection with the Notes.
2. Mutual Representations, Warranties and Covenants. The Company represents and
warrants to Holder, and Holder represents and warrants to the Company as follows:
(a) 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 this Agreement and to carry out the transactions contemplated
hereby, and perform its respective obligations hereunder;
(b) the execution, delivery and performance by it of this Agreement 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;
(c) the execution, delivery and performance by it of this Agreement 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 such filings as may be necessary or required by the Securities
and Exchange Commission;
(d) this Agreement has been duly authorized, executed and delivered and, assuming the
due execution and delivery of this Agreement by the other party hereto, this Agreement 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
(e) it has been represented by counsel in connection with this Agreement and the
transactions contemplated hereby.
3. Representations, Warranties and Covenants of Holder. Holder further represents
and warrants to the Company as follows:
(a) Holder is the beneficial owner of, or the investment adviser or manager for the
beneficial owners of, the Notes, which represents all of the Notes held by Holder, with the
requisite power and authority to vote and dispose of the Notes, such Notes are owned free
and clear of any liens, encumbrances, equities or claims and the delivery of the Notes in
accordance with this Agreement will convey to the Company good title to the Notes, free and
clear of liens, claims, equities and encumbrances; and
(b) Holder has not previously sold, assigned, conveyed, transferred or otherwise
disposed of, in whole or in part, the Notes to be sold by Holder hereunder, nor has Holder
entered into any agreement to sell, assign, convey, transfer or otherwise dispose of, in
whole or in part, such Notes.
4. Conditions to Parties’ Obligations. The obligations of each party hereunder at the
Closing are subject to the satisfaction of each of the following conditions, provided that these
conditions are for the sole benefit of such party and may be waived by such party at any time in
its sole discretion by providing the other party with prior written notice thereof:
(a) the other party shall have executed this Agreement and delivered the same to such
party; and
(b) the representations and warranties of the other party in this Agreement shall be
true and correct as of the date when made and as of the date of the Closing as though made
at that time.
5. 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, (c) transmitted by overnight courier, or (d)
transmitted by telecopy, and in each case, if to Holder, to the address set forth on the signature
pages to this Agreement and, 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.
Notices mailed or transmitted in accordance with the foregoing shall be deemed to have been given
upon receipt.
6. Release. In connection with the transactions contemplated herein, and upon
consummation thereof, the Holder shall, at such time, release any and all claims against the
Company and its affiliates in respect of the Notes.
7. Fees and Expenses. Each party shall pay the fees and expenses of its advisers,
counsel, accountants and other experts, if any, and all other expenses incurred by such party
incident to the negotiation, preparation, execution, delivery and performance of this Agreement.
8. Governing Law. This Agreement shall be governed by and construed in accordance
with the laws of the State of New York, without giving effect to the principles of
conflicts of law thereof. Each party hereby irrevocably submits to the 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 WITH OR ARISING OUT OF THIS AGREEMENT OR ANY TRANSACTION CONTEMPLATED HEREBY.
9. Entire Agreement. This Agreement constitutes the entire agreement among the parties
pertaining to the purchase of the Notes as contemplated herein and supersedes the parties’ prior
agreements, understandings, negotiations and discussions, whether oral or written, on such matters,
and 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.
10. Miscellaneous. 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. 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. In the event that any one or more of the
provisions contained herein, or the application thereof in any circumstance, is held invalid,
illegal or unenforceable, the validity, legality and enforceability of any such provision in every
other respect and of the remaining provisions contained herein shall not be affected or impaired
thereby. 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.
[Remainder of Page Intentionally Left Blank]
IN WITNESS WHEREOF, each of the parties has caused this Agreement to be duly executed on its
behalf as of the date first written above.
| EPIX PHARMACEUTICALS, INC. | ||||
By: Name: |
/s/ Xxx Xxxxxxxx Xxxxxxx
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Title:
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Chief Financial Officer | |||
XXXXXX, XXXXXX & COMPANY, L.P.
By:
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/s/ Xxxxxx X. Day
|
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Name:
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Xxxxxx X. Day
|
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Title:
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Assistant General Counsel
|
| Address: | Xxx Xxxxxxxxx Xxxxxx Xxxxxx XX 00000 |
