EXCHANGE AGREEMENT
Exhibit 10.1
EXECUTION COPY
This Exchange Agreement (the “Agreement”) is entered into, effective as of July 9, 2009,
between EPIX Pharmaceuticals, Inc. (the “Company”) and Citigroup Global Markets Inc. (“Holder”).
RECITALS
A. Holder is the beneficial owner of $2,896,000 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”).
X. Xxxxxx wishes to exchange the Notes for $521,280 in cash (the “Cash Consideration”) and
3,644,352 shares of the Company’s common stock, $0.01 par value per share (the “Exchange Shares”),
pursuant to Section 3(a)(9) of the Securities Act of 1933, as amended (the “Exchange”).
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. Exchange 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 issue and deliver (or cause to be delivered) to the
Holder (i) the Cash Consideration to Holder’s bank account as identified on Exhibit
A and (ii) the Exchange Shares in the name of the Holder, or in the name of a custodian
or nominee of the Holder, as requested by the Holder, to Holder’s account as identified on
Exhibit B, 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 and the
Exchange Shares in the Exchange 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.
(d) The Company and Holder each hereby acknowledge that, subject to the accuracy of
the representations of the other party in this Agreement, the Exchange Shares
are being issued without registration under the Securities Act of 1933, as amended (the
“Securities Act”), in reliance upon Section 3(a)(9) thereof.
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 (A) 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, and (B) such other 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 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;
(b) Holder has not previously sold, assigned, conveyed, transferred or otherwise
disposed of, in whole or in part, the Notes to be exchanged 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;
(c) Holder, together with its affiliates, (i) is not at present, and has not been
during the preceding three months, an “affiliate” of the Company as that term is defined in
paragraph (a)(1) of Rule 144 pursuant to the Securities Act of 1933, as amended (the “Act”),
(ii) immediately after giving effect to the Exchange and the issuance of the Exchange
Shares, will not beneficially own (calculated in accordance with Section 13(d) of the
Securities Exchange Act of 1934, as amended) more than 9.99% of the outstanding shares of
the Company’s common stock and (iii) has not and will not have beneficially owned
(calculated in accordance with Section 13(d) of the Securities Exchange Act of 1934, as
amended) in excess of 9.99% of the outstanding shares of the Company’s common stock
outstanding at any time during the ninety (90) day period ending on the date of the Closing;
(d) Holder (i) has held the Notes for a period of not less than six months for
purposes of Rule 144 of the Securities Act, and (ii) as of January 1, 2010, will have held
the Exchange Shares for a period of not less than one year for purposes of Rule 144 of the
Securities Act, calculated by tacking the holding period of the Notes in accordance with
Rule 144(d) of the Securities Act;
(e) Holder acknowledges and agrees that any sales by Holder of the Exchange Shares
will be conducted in accordance with Rule 144 or another available exemption under the
Securities Act;
(f) Holder has not engaged any broker, finder or other entity acting under the
authority of Holder or any of its affiliates that is entitled to any commission or other fee
in connection with the Exchange;
(g) Holder has the requisite knowledge and experience in financial and business
matters so that it is capable of evaluating the merits and risks of the Exchange and
acquiring the Exchange Shares in connection therewith, and Holder acknowledges that (i) the
Company makes no representation regarding the value of the Notes or the Exchange Shares,
(ii) the rights and privileges of holders of the Company’s common stock are substantially
different from, and less favorable than, the rights of holders of the Notes (described in
the indenture relating to the Notes) and (iii) Holder has independently and without reliance
upon the Company made its own analysis and decision to enter into the Exchange and exchange
the Notes for the Cash Consideration and Exchange Shares; and
(h) in entering into this Exchange Agreement and the transactions contemplated hereby,
Holder acknowledges that it has and is acting for itself and not at the direction or
instruction of any other person, including without limitation, the Company, and Holder has
not, is not and will not hold itself out as, an agent of the Company in connection with
the transactions contemplated hereby or in connection with any subsequent sale of the
Exchange Shares. The Holder is an “accredited investor” as defined in Rule 501 promulgated
under the Securities Act.
4. Representations, Warranties and Covenants of the Company. The Company further
represents and warrants to the Holder as follows:
(a) the Company has not engaged any broker, finder or other entity acting under the
authority of Holder or any of its affiliates that is entitled to any commission or other fee
in connection with the Exchange;
(b) 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; and
(c) based on the representations of Holder contained herein, when issued in accordance
with this Agreement, the Exchange Shares will be issued to Holder without any restrictive
legend and, to the Company’s knowledge, the Exchange Shares will be freely saleable without
restriction or limitation pursuant to Rule 144, subject to the requirement to be in
compliance with Rule 144(c)(1) (or any successor thereto) promulgated under the Securities
Act for the sale of any Exchange Shares prior to the expiration of a one-year holding
period, as calculated pursuant to Rule 144(d) of the Securities Act.
5. 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.
6. Disclosure of Transaction and Other Material Information. No later than 9:30 a.m.,
New York City time, on the first (1st) business day following the Closing, the Company shall file a
Current Report on Form 8-K describing the terms of the transactions contemplated by this Agreement
and attaching this Agreement as an exhibit to such filing (the “8-K Filing”). The Company
acknowledges and agrees that, except for the information that will be contained in the 8-K Filing,
the Company has not transferred to the Holder any information that the Company believes constitutes
material, nonpublic information. The Company shall not, and shall cause each of its officers,
directors, employees and agents, not to, provide Holder with any material, nonpublic information
regarding the Company from and after the filing of the 8-K Filing without the express written
consent of the Holder.
7. 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.
8. No Solicitation; Release. Holder confirms that the Company did not solicit the
Exchange and that Holder has independently and without reliance on the Company made its own
analysis and decision to enter into the Exchange. In connection with the Exchange, 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.
9. 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.
10. 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.
11. Entire Agreement. This Agreement constitutes the entire agreement among the
parties pertaining to the exchange of cash and securities 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.
12. 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.
By: Name: |
/s/ Xxx Xxxxxxxx Xxxxxxx
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Title:
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Chief Financial Officer | |||
CITIGROUP GLOBAL MARKETS INC.
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By:
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/s/ Xxxxxxx Xxxxxxxxx
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Name:
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Xxxxxxx Xxxxxxxxx
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Title:
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Managing Director
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| Address: | 000 Xxxxxxxxx Xxxxxx 0xx Xxxxx Xxx Xxxx, Xxx Xxxx 00000 Attention Managing Director Convertible Securities |
