Exhibit 10.15
O MNIBUS A MENDMENT TO A SSET P URCHASE A GREEMENT , N OTE I SSUANCE A GREEMENT ,
AND S ENIOR S ECURED C ONVERTIBLE A CQUISITION N OTE , EACH DATED AS OF D ECEMBER 23, 2005
This Omnibus Amendment (this “
Amendment ”) to the Asset Purchase Agreement (the
“ APA ”), Note Issuance Agreement (the “
NIA ”) and Senior Secured Convertible Acquisition Note
(the “ Note ”), each dated as of
December 23, 2005 (collectively, the APA, the NIA and the
Note, the “ Agreements ” and each an “
Agreement ”) is made as of January 31, 2007, by
and between Targanta Therapeutics Corporation, a Delaware
corporation (“ Targanta US ”) and InterMune,
Inc., a Delaware corporation (“ InterMune
”).
WHEREAS, on or around the date
hereof, Targanta US shall enter into a Series C Preferred Stock,
Class C Exchangeable Shares and Warrant Purchase Agreement (the
“ Purchase Agreement ”) pursuant to which
agreement Targanta US and its two Canadian subsidiaries shall issue
shares of Series C Preferred Stock, Class C Exchangeable Shares and
Warrants to certain investors; and
WHEREAS, it is a condition to the
closing of the transactions contemplated by the Purchase Agreement
that the Agreements be amended to reflect certain changes to the
terms thereof and to clarify certain ambiguities contained therein;
and
WHEREAS, each of the Agreements may
be amended upon the written consent of each of Targanta US and
InterMune;
NOW THEREFORE, for good and valuable
consideration, the receipt and sufficiency of which are hereby
acknowledged, and intending to be legally bound hereby, the parties
hereto agree as follows:
1. The parties to this Amendment
hereby acknowledge and agree that the transactions contemplated by
the Purchase Agreement constitute a Preferred Equity Financing (as
such term is defined in the NIA). InterMune hereby acknowledges and
agrees that, upon the consummation of the transactions contemplated
in the Purchase Agreement, (a) its entitlement to a security
interest in the assets of Targanta US shall automatically expire
and be terminated; (b) the Collateral Documents (as such term
is defined in the NIA) shall be null and void; and
(c) Targanta US and its Canadian subsidiaries shall be
expressly authorized to terminate the financing statements or other
documents representing such security interest on file in the State
of Delaware or in Canada.
2. Targanta US hereby informs
InterMune that the address of its principal executive offices and
its address for notice purposes under all of the Agreements is now
222 Third Street, Suite 2300, Cambridge, MA 02142, facsimile:
(617) 577-9021.
3. The definition of First Milestone
set forth in Exhibit A to the APA shall be amended and restated in
its entirety to read as follows:
“ First Milestone
” means the earlier of the date on which (i) Buyer
receives FDA authorization (whether verbal or written) to conduct
or (ii) the first subject is dosed in, in each case, a
clinical study of the Product in the United States.
4. The definition of Second
Milestone set forth in Exhibit A to the APA shall be amended and
restated in its entirety to read as follows:
“Second Milestone” means
the earlier of the date on which (i) Buyer receives FDA
authorization (whether verbal or written) to conduct or
(ii) the first subject is dosed in, in each case, a clinical
study of the Product in the United States, which clinical study is
designed to assess the efficacy of the Product (excluding any
clinical study required to be conducted by the FDA for approval of
an indication for the treatment of patients with complicated skin
and skin structure infections (cSSSI) by daily IV infusion of 200
mg of Product (300 mg for patients greater than 110
kg)).
5. The following defined terms shall
be added to the NIA:
“ Series C Shares
” means Series C-1 Shares, Series C-2 Shares and Series C-3
Shares.
“ Series C-1 Shares
” means shares of Purchaser’s Series C-1 Preferred
Stock, par value $0.0001 per share.
“ Series C-2 Shares
” means shares of Purchaser’s Series C-2 Preferred
Stock, par value $0.0001 per share.
“ Series C-3 Shares
” means shares of Purchaser’s Series C-3 Preferred
Stock, par value $0.0001 per share.
6. Both Targanta US
and InterMune hereby acknowledge and agree that the First Milestone
has, as of the date hereof, been achieved but that the Second
Milestone has not, as of the date hereof, been achieved. InterMune
hereby acknowledges and agrees that, notwithstanding anything
herein or in the Note to the contrary related to the timing of such
events, on or prior to the fifth (5 th
) business day
following the date of the Initial Closing (as such term is defined
in the Purchase Agreement), Targanta US shall (a) issue the
shares of Series C-2 Shares and Series C-3 Shares issuable to
InterMune in respect of Targanta US’ achievement of the First
Milestone and (b) pay to InterMune the cash payment required
by Section 4.01(e) of the APA.
7. InterMune hereby waives receipt
of a separate certificate, required pursuant to Section 9(d)
of the Note, from the Chief Financial Officer of Targanta US, which
certificate would be required to be delivered following the
conversion of the Initial Conversion Amount (as defined in the
Note), which conversion shall occur on or around the date hereof.
Upon the consummation of the Closing and based on the achievement
of the First Milestone, the parties hereto acknowledge and agree
that the outstanding balance on the Note will be $7,500,000, which
amount shall be converted into Series C-2 Shares and Series C-3
Shares as specified in the
- 2 -
Note and Section 6 above. Further,
InterMune hereby waives receipt of a separate certificate, required
pursuant to Section 9(d) of the Note, from the Chief Financial
Officer of Targanta US, which certificate would be required to be
delivered following the conversion of the Subsequent Conversion
Amount related to the achievement of the First Milestone, and
instead, hereby acknowledges and agrees that, following the
conversion of such Subsequent Conversion Amount, the outstanding
principal balance on the Note shall be $0.
8. InterMune acknowledges and agrees
that the certificate delivered to it on or around the date hereof
in respect of the conversion of the Initial Conversion Amount
(pursuant to Section 3.02(b) of the NIA) shall be deemed also
to apply to and be in respect of the conversion of the Subsequent
Conversion Amount related to Targanta US’ achievement of the
First Milestone such that no further certificate shall be required
pursuant to Section 3.02(b) in respect of such
conversion.
9. Section 1(c) of the Note
shall be amended and restated in its entirety to read as
follows:
(c) Unless the outstanding principal
amount has already been converted into Series C Shares pursuant to
Section 9, or paid in full pursuant to Section 10, or
earlier due and payable upon acceleration of this Note after an
Event of Default, Purchaser shall pay the outstanding principal
amount of this Note on the fifth anniversary of the issuance date
of this Note (the “ Maturity Date ”).
10. Section 8 of the Note shall
be amended and restated in its entirety to read as
follows:
(a) On the date Purchaser completes
the Preferred Equity Financing, the principal amount of this Note
shall automatically decrease by Three Million U.S. Dollars
(U.S.$3,000,000) to Ten Million U.S. Dollars
(U.S.$10,000,000).
(b) Subject to the satisfaction of
the conditions set forth in Section 3.02 of the Note Issuance
Agreement, upon the occurrence of the First Milestone, the
principal amount of this Note shall automatically increase by Seven
Million Five Hundred Thousand U.S. Dollars
(U.S.$7,500,000).
(c) Subject to the satisfaction of
the conditions set forth in Section 3.02 of the Note Issuance
Agreement, upon the occurrence of the Second Milestone, the
principal amount of this Note shall automatically increase by Seven
Million Five Hundred Thousand U.S. Dollars
(U.S.$7,500,000).
(d) If Purchaser is unable to
satisfy any of the conditions precedent set forth in
Section 3.02 of the Note Issuance Agreement on the date of
th
