Exhibit 10.1
NOTE PURCHASE AGREEMENT
by and between
FermaVir Pharmaceuticals,
Inc.,
and
Inhibitex, Inc.
Dated as of April 9, 2007
TABLE OF CONTENTS
|
|
|
|
Page
|
|
|
|
|
|
|
ARTICLE I.
|
DEFINITIONS
|
|
1
|
|
Section 1.1
|
Definitions
|
|
1
|
|
Section 1.2
|
Accounting Terms; Financial
Statements
|
|
6
|
|
Section 1.3
|
Knowledge of the Person
|
|
6
|
|
Section 1.4
|
Other Definitional
Provisions
|
|
6
|
|
ARTICLE II.
|
PURCHASE AND SALE OF THE NOTES
|
|
6
|
|
Section 2.1
|
Purchase and Sale
|
|
6
|
|
Section 2.2
|
Closing
|
|
7
|
|
ARTICLE III.
|
CONDITIONS TO THE OBLIGATIONS OF THE PURCHASER
TO PURCHASE THE NOTES
|
|
7
|
|
Section 3.1
|
Conditions to the Initial
Closing
|
|
7
|
|
Section 3.2
|
Conditions to Each Additional
Closing
|
|
8
|
|
ARTICLE IV.
|
CONDITIONS TO THE OBLIGATION OF THE COMPANY TO
ISSUE AND SELL THE NOTES
|
|
10
|
|
Section 4.1
|
Representations and
Warranties
|
|
10
|
|
Section 4.2
|
Compliance with this
Agreement
|
|
10
|
|
Section 4.3
|
No Litigation
|
|
10
|
|
ARTICLE V.
|
REPRESENTATIONS AND WARRANTIES OF THE
COMPANY
|
|
10
|
|
Section 5.1
|
Representations and Warranties of
the Company
|
|
10
|
|
ARTICLE VI.
|
REPRESENTATIONS AND WARRANTIES OF THE
PURCHASER
|
|
12
|
|
Section 6.1
|
Existence and Power
|
|
12
|
|
Section 6.2
|
Authorization; No
Contravention
|
|
12
|
|
Section 6.3
|
Binding Effect
|
|
12
|
|
Section 6.4
|
Governmental Authorization; Third
Party Consent
|
|
12
|
|
ARTICLE VII.
|
COVENANTS
|
|
12
|
|
Section 7.1
|
Financial Statements
|
|
12
|
|
Section 7.2
|
Business and Financial
Information
|
|
13
|
|
Section 7.3
|
Corporate Existence; Franchises;
Maintenance of Properties
|
|
13
|
|
Section 7.4
|
Use of Proceeds
|
|
13
|
|
Section 7.5
|
Compliance with Laws
|
|
13
|
|
Section 7.6
|
Payment of Obligations
|
|
14
|
|
|
|
|
|
|
|
i
|
|
|
|
Page
|
|
|
|
|
|
|
Section 7.7
|
Creation of Subsidiaries
|
|
14
|
|
Section 7.8
|
Insurance
|
|
14
|
|
Section 7.9
|
Maintenance of Books and
Records
|
|
14
|
|
Section 7.10
|
Taxes
|
|
14
|
|
Section 7.11
|
Further Assurances
|
|
14
|
|
Section 7.12
|
Merger Agreement
Covenants
|
|
15
|
|
ARTICLE VIII.
|
NEGATIVE COVENANTS
|
|
15
|
|
Section 8.1
|
Merger; Consolidation; Line of
Business
|
|
15
|
|
Section 8.2
|
Indebtedness
|
|
15
|
|
Section 8.3
|
Liens
|
|
15
|
|
Section 8.4
|
Disposition of Assets;
Investments
|
|
16
|
|
Section 8.5
|
Restricted Payments
|
|
16
|
|
Section 8.6
|
Transactions with
Affiliates
|
|
16
|
|
Section 8.7
|
Issuance of Additional Capital
Stock
|
|
17
|
|
Section 8.8
|
Fiscal Year
|
|
17
|
|
Section 8.9
|
Accounting Changes
|
|
17
|
|
Section 8.10
|
Inconsistent Agreements
|
|
17
|
|
ARTICLE IX.
|
EVENTS OF DEFAULT
|
|
17
|
|
Section 9.1
|
Events of Default
|
|
17
|
|
Section 9.2
|
Remedies on Default, Etc
|
|
19
|
|
Section 9.3
|
Other Remedies
|
|
19
|
|
Section 9.4
|
Notice by Holder
|
|
20
|
|
ARTICLE X.
|
INDEMNIFICATION
|
|
20
|
|
Section 10.1
|
Indemnification
|
|
20
|
|
Section 10.2
|
Procedure; Notification
|
|
21
|
|
ARTICLE XI.
|
REDEMPTION
|
|
22
|
|
Section 11.1
|
Redemption at the Option of the
Company
|
|
22
|
|
ARTICLE XII.
|
MISCELLANEOUS
|
|
22
|
|
Section 12.1
|
Survival of Representations and
Warranties
|
|
22
|
|
Section 12.2
|
Appointment of Collateral
Agent
|
|
22
|
|
|
|
|
|
|
|
ii
|
|
|
|
Page
|
|
|
|
|
|
|
Section 12.3
|
Notices
|
|
22
|
|
Section 12.4
|
Successors and Assigns
|
|
23
|
|
Section 12.5
|
Amendment and Waiver
|
|
24
|
|
Section 12.6
|
Signatures; Counterparts
|
|
24
|
|
Section 12.7
|
Headings
|
|
24
|
|
Section 12.8
|
Determinations, Requests or
Consents
|
|
24
|
|
Section 12.9
|
GOVERNING LAW
|
|
25
|
|
Section 12.10
|
JURISDICTION, JURY TRIAL WAIVER,
ETC
|
|
25
|
|
Section 12.11
|
Severability
|
|
25
|
|
Section 12.12
|
Rules of Construction
|
|
26
|
|
Section 12.13
|
Entire Agreement
|
|
26
|
|
Section 12.14
|
Transfer and Exchange of
Notes
|
|
26
|
|
Section 12.15
|
Further Assurances
|
|
26
|
|
Section 12.16
|
Cumulative Powers
|
|
26
|
|
Section 12.17
|
No Strict Construction
|
|
27
|
|
Section 12.18
|
Recovery of Litigation
Costs
|
|
27
|
iii
TABLE OF CONTENTS
|
|
|
|
|
|
|
|
|
Exhibits
|
|
|
|
|
|
|
|
Exhibit 2.1(a) Form of Note
|
|
|
i
NOTE PURCHASE AGREEMENT
NOTE PURCHASE AGREEMENT dated as of
April 9, 2007, by and between FermaVir Pharmaceuticals., Inc., a
Florida corporation (the “Company”), and Inhibitex,
Inc., a Delaware corporation (the
“Purchaser”).
W I T N E S S E T H:
WHEREAS, the Company, the Purchaser
and Frost Acquisition Corp., a Delaware corporation (“Merger
Sub”) have entered into an Agreement and Plan of Merger and
Reorganization, dated as of the date hereof (the “Merger
Agreement”), pursuant to which the Purchaser intends to
acquire the Company by merging the Company with and into Merger Sub
(the “Merger”);
WHEREAS. in order to finance the
operations of the Company through the consummation of the Merger,
the Company wishes to sell to the Purchaser, and the Purchaser
wishes to purchase from the Company, senior secured promissory
notes, in the aggregate principal amount of up to One Million Five
Hundred Thousand Dollars ($1,500,000) (the “Notes”)
upon the terms and subject to the conditions hereinafter set
forth;
WHEREAS, as security for the Notes,
the Company is willing to pledge to the Purchaser all of the
Capital Stock (as hereinafter defined) of its Subsidiary (as
hereinafter defined) and grant to the Holders a first priority
security interest in all of its and its Subsidiaries’
assets;
NOW, THEREFORE, in consideration of
the mutual covenants and agreements set forth herein and for other
good and valuable consideration, the receipt and adequacy of which
are hereby acknowledged, the parties hereto agree as
follows:
ARTICLE I.
DEFINITIONS
Section
1.1
Definitions
. As used
in this Agreement, and unless the context requires a different
meaning, or such term is defined in the Merger Agreement, in which
case the term will have the meaning attributed to such term in the
Merger Agreement, the following terms have the meanings
indicated:
“Additional Closing”
shall have the meaning assigned to that term in Section
2.2(b).
“Affiliate” shall mean,
as to any Person, any other Person who directly or indirectly
controls, is under common control with, is controlled by or is a
director or officer of such Person. As used in this
definition, “control” (including its correlative
meanings, “controlled by” and “under common
control with”) means possession, directly or indirectly, of
the power to direct or cause the direction of management or
policies (whether through ownership of voting securities or
partnership or other ownership interests, by contract or
otherwise), provided that, in
any event, any Person who owns
directly or indirectly more than ten percent (10%) of the
securities having ordinary voting power for the election of the
members of the board of directors or other governing body of a
corporation or more than ten percent (10%) of the partnership or
other ownership interests of any other Person (other than as a
limited partner of such other Person) will be deemed to control
such corporation, partnership or other Person.
“Agreement” shall mean
this Note Purchase Agreement dated as of
April , 2007, by and between the
Company and the Purchaser, including the exhibits and schedules
attached hereto, as the same may be amended, supplemented or
modified in accordance with the terms hereof.
“Business” shall mean
the business of the Company and its Subsidiaries conducted by the
Company and its Subsidiaries immediately prior to the Closing and
the activities reasonably related thereto.
“Business Day” shall
mean any day other than a Saturday, Sunday or other day on which
commercial banks in New York, New York are authorized or required
by law or executive order to close.
“Capital Lease
Obligations” shall mean, as to any Person, the obligations of
such Person to pay rent or other amounts under a lease of (or other
agreement conveying the right to use) immovable or real property or
movable or personal property, which obligations are required to be
classified and accounted for as a capital lease on a balance sheet
of such Person under GAAP and, for purposes of this Agreement, the
amount of such obligations shall be the capitalized amount thereof,
determined in accordance with GAAP.
“Capital Stock” shall
mean (i) with respect to any Person that is a corporation, any and
all shares, interests or equivalents in capital stock (whether
voting or nonvoting, and whether common or preferred) of such
corporation, and (ii) with respect to any Person that is not a
corporation, any and all partnership, membership, limited liability
company or other equity interests of such Person that confer on a
Person the right to receive a share of the profits and losses of,
or the distribution of assets of, the issuing Person; and in each
case, any and all warrants, rights or options to purchase, and all
conversion or exchange rights, voting rights, calls or rights of
any character with respect to, any of the foregoing, including,
without limitation, any rights in respect of any change in the
value of any of the foregoing, including stock appreciation rights
and similar interests.
“Closing” shall have the
meaning assigned to that term in Section 2.2(a).
“Closing Date” shall
have the meaning assigned to that term in Section
2.2(a).
“Code” shall mean the
Internal Revenue Code of 1986, as amended, or any successor statute
thereto, and the regulations promulgated thereunder.
“Collateral Documents”
means the Security Agreement, and all similar agreements entered
into guaranteeing payment of, or granting a Lien upon property as
security for payment of, the Obligations.
2
“Company” shall have the
meaning assigned to that term in the introduction.
“Constituent Documents”
shall mean, in the case of a corporation, the certificate of
incorporation and by-laws of such corporation, in the case of a
limited liability company, the certificate of formation and
operating agreement of such limited liability company, and in the
case of other entities, analogous documents governing the existence
and powers of such entities, in each case as in effect on the
Closing Date.
“Default” shall mean any
event or condition that, with the passage of time or giving of
notice, or both, would constitute an Event of Default.
“Default Rate” shall
have the meaning assigned to that term in Section 2(b) of the
Note.
“Disposition” shall mean
with respect to any property, any sale, lease, sale and leaseback,
assignment, conveyance, transfer or other disposition thereof
(other than any of the foregoing between the Company and its
Subsidiaries). The terms “Dispose” and
“Disposed of” shall have correlative
meanings.
“Event of Default” shall
have the meaning assigned to that term in Section 9.1.
“Holders” shall mean the
Purchaser and any permitted transferee of the Notes.
“Indebtedness” means,
without duplication, for any Person, (i) obligations for borrowed
money, including obligations evidenced by bonds, notes, debentures
or other similar instruments; (ii) obligations under financial
guarantees, letters of credit or letters of guarantee or
obligations to financial institutions who issued such letters of
credit or letters of guarantee for the account of such Person;
(iii) obligations under bankers’ acceptances; (iv)
obligations representing the deferred purchase price of property or
services except trade accounts payable of such Person arising in
the ordinary course of business; (v) obligations, whether or not
assumed, secured by Liens on, or payable out of the proceeds or
production from, property owned by such Person; (vi) Capital Lease
Obligations and obligations under any other synthetic off-balance
sheet financing; and (vii) guarantees of any of the foregoing items
referred to in (i) through (vi) above.
“Indemnified Party”
shall have the meaning assigned to that term in Section
10.1.
“Initial Closing” shall
mean the initial Closing.
“Insolvency Event” shall
with respect to any Person, the occurrence of any of the following:
(i) such Person shall be adjudicated insolvent or bankrupt or
institutes proceedings to be adjudicated insolvent or bankrupt, or
shall generally fail to pay or admit in writing its inability to
pay its debts as they become due, (ii) such Person shall seek
dissolution or reorganization or the appointment of a receiver,
trustee, custodian or liquidator for it or a substantial portion of
its property, assets or business or to effect a plan or other
arrangement with its creditors, (iii) such Person shall make a
general assignment for the benefit of its creditors, or consent to
or acquiesce in the appointment of a receiver, trustee, custodian
or liquidator for a substantial portion of its property, assets or
business, (iv) such Person shall file a voluntary petition under
any bankruptcy,
3
insolvency or similar law, (v) such
Person shall take any corporate or similar act in furtherance of
any of the foregoing, or (vi) such Person, or a substantial portion
of its property, assets or business, shall become the subject of an
involuntary proceeding or petition for (A) its dissolution or
reorganization or (B) the appointment of a receiver, trustee,
custodian or liquidator, and (I) such proceeding is not dismissed
or stayed within sixty days or (II) such receiver, trustee,
custodian or liquidator is appointed.
“Investment Documents”
shall mean (i) this Agreement, (ii) the Notes, (iii) the Collateral
Documents, and (v) all other instruments, documents and agreements
delivered or to be delivered by any one or more of the parties to
this Agreement in connection with the closing of, or pursuant to,
this Agreement.
“Investments” in any
Person shall mean, as of the date of determination thereof, (i) any
payment or contribution, or commitment to make a payment or
contribution, by a Person including, without limitation, property
contributed or committed to be contributed by such Person for or in
connection with its acquisition of any stock, bonds, notes,
debentures, partnership or other ownership interest or any other
security of the Person in whom such Investment is made or (ii) any
loan, advance or other extension of credit by or guaranty of or
other surety obligation for any Indebtedness of the Person in whom
the Investment is made.
“Liabilities” shall have
the meaning assigned to that term in Section 10.1.
“Lien” shall mean a
mortgage, prior claim, pledge, privilege, lien, charge or
encumbrance, whether fixed or floating, on, or any security
interest in any property, whether immovable or real, movable or
personal, or mixed, tangible or intangible or a pledge or
hypothecation thereof or any conditional sale agreement or other
title retention agreement or equipment trust relating thereto or
any lease relating to property which would be required to be
accounted for as a Capital Lease Obligation on a balance
sheet.
“Material Adverse
Change” shall mean any material adverse change in the
condition (financial or otherwise), operations, business,
prospects, properties or assets of the Company and its
Subsidiaries, taken as a whole.
“Modification” shall
mean any amendment, restatement, replacement, renewal, refinancing,
extension, or modification of an agreement.
“Modified” shall have the correlative
meaning.
“Notes” shall have the
meaning assigned to that term in the recitals hereto.
“Obligations” shall mean
all principal of and interest (including, to the greatest extent
permitted by law, post-petition interest) on the Notes and all
fees, expenses, indemnities and other obligations owing, due or
payable to the Holders at any time by the Company and/or its
Subsidiaries or any other Person entitled thereto, under this
Agreement or any of the other Investment Documents, in each case
whether direct or indirect, joint or several, absolute or
contingent, matured or unmatured, liquidated or unliquidated,
secured or unsecured, and whether existing by contract, operation
of law or otherwise.
4
“Permitted Liens” shall
mean (a) Liens held by Holders to secure the Obligations, (b) Liens
for unpaid taxes, assessments, or other governmental charges or
levies that either (i) are not yet delinquent, or (ii) do not have
priority over the Holders’ Liens, (c) the interests of
lessors under operating leases, (d) purchase money Liens or the
interests of lessors with respect to Capital Lease Obligations and
(e) any interest or title of a licensor, lessor, or sublicensor or
sublessor under any lease or license (other than with respect to
Intellectual Property) permitted by this Agreement.
“Purchaser” shall have
the meaning assigned to such term in the introduction.
“Required Holders” shall
mean, at any time, the holders of the outstanding Notes
representing a majority of the aggregate principal amount of the
Notes then outstanding.
“Restricted Payment”
shall mean: (i) any dividend or other distribution, direct or
indirect, on account of any Capital Stock in the Company now or
hereafter outstanding, except a dividend payable solely in shares
of such Capital Stock to the holders of that class; (ii) any
redemption, conversion, exchange, retirement, sinking fund or
similar payment, purchase or other acquisition for value, direct or
indirect, of any Capital Stock in the Company now or hereafter
outstanding other than ordinary course repurchases of common stock
of the Company pursuant to the Company’s equity incentive
plan; (iii) any prepayment of interest on, principal of, premium,
if any, redemption, conversion, exchange, purchase, retirement,
defeasance, sinking fund or similar payment with respect to, any
Indebtedness subordinated to the Indebtedness existing pursuant to
the Notes and this Agreement; (iv) any payment made to retire, or
to obtain the surrender of, any outstanding warrants, options or
other rights to acquire shares of any Capital Stock of the Company
now or hereafter outstanding other than ordinary course repurchases
of common stock of the Company pursuant to the Company’s
equity incentive plan; (v) every payment in connection with any
Investment; and (vi) every payment made by or on behalf of the
Company (whether as repayment or prepayment of principal or as
interest or otherwise) other than the intercompany loan payments
permitted in accordance with Section 8.2, on or with respect to (x)
any obligation to repay Indebtedness owing to any Affiliate of the
Company or its Subsidiaries or to any other holder of the
Company’s Capital Stock or (y) any obligation to any Person
or any Affiliate of the Company or its Subsidiaries or of any other
holder of Capital Stock of the Company, with respect to which
obligation the Company or any of its Subsidiaries has a Contingent
Obligation.
“Security Agreement”
means the Security Agreement of even date herewith entered into
between the Purchaser and the Company.
“Solvent” when used with
respect to any Person, means that, as of the date as to which such
Person’s solvency is to be measured: (i) the fair saleable
value of its assets in excess of the total amount of its
liabilities (including contingent, subordinated, absolute, fixed,
matured, unmatured, liquidated and unliquidated liabilities but
excluding liabilities owing by the Company to any of its
Subsidiaries or any one of the Subsidiaries of the Company to the
Company or to another one of the Subsidiaries of the Company); (ii)
it has sufficient capital to conduct its business; and (ii) it is
able to meet its debts as they mature.
5
“Subsidiary(ies)” shall
mean, with respect to any Person, a corporation, partnership,
limited liability company or other entity of which shares of stock
or other ownership interests having ordinary voting power (other
than stock or such other ownership interests having such power only
by reason of the happening of a contingency) to elect a majority of
the board of directors or other managers of such corporation,
partnership or other entity are at the time owned, or the
management of which is otherwise controlled, directly or indirectly
through one or more intermediaries, or both, by such
Person.
Section
1.2
Accounting
Terms; Financial Statements . Unless otherwise
defined or specified herein, all accounting terms used in this
Agreement shall be construed in accordance with GAAP as in effect
on the date hereof. The financial statements required to be
delivered hereunder from and after the Closing Date, and all
financial records, shall be maintained in accordance with GAAP as
in effect at the time of delivery.
Section
1.3
Knowledge of
the Person . All references to the
knowledge of any Person or to facts known by such Person shall mean
the knowledge or notice of the Responsible Officers of such Person
or any of its Subsidiaries.
Section
1.4
Other
Definitional Provisions .
(a)
As used herein
and in any certificate or other document made or delivered pursuant
hereto or thereto, (i) the words “include”,
“includes” and “including” shall be deemed
to be followed by the phrase “without limitation” and
(ii) the words “asset” and “property” shall
be construed to have the same meaning and effect and to refer to
any and all tangible and intangible assets and properties,
including cash, Capital Stock, securities, revenues, accounts,
leasehold interests and contract rights.
(b)
The words
“hereof”, “herein” and
“hereunder” and words of similar import when used in
this Agreement shall refer to this Agreement as a whole and not to
any particular provision of this Agreement, and Section, Schedule
and Exhibit references are to this Agreement unless otherwise
specified.
(c)
The meanings
given to terms defined herein shall be equally applicable to both
the singular and plural forms of such terms.
ARTICLE II.
PURCHASE AND SALE OF THE NOTES
Section
2.1
Purchase and
Sale .
(a)
Subject to the
terms and conditions herein set forth, the Company agrees that it
will issue and sell to the Purchaser, and the Purchaser agrees that
it will acquire from the Company, the Notes in the form attached
hereto as Exhibit 2.1(a).
(b)
The Notes shall
be sold by the Company and purchased by the Purchaser initially on
April 16, 2007 in the aggregate principal amount of $750,000 in
Notes, an additional aggregate principal amount of $500,000 in
Notes on July 9, 2007 and a
6
final additional
aggregate amount of $250,000 in Notes on August 9, 2007, provided
that the aggregate principal amount of the Notes shall not be
greater than One Million Five Hundred Thousand Dollars
($1,500,000).
Section
2.2
Closing
.
(a)
The purchase and
issuance of Notes shall take place at one or more closings (each a
“Closing” and, collectively, the
“Closings”) to be held at the offices of Dechert LLP,
30 Rockefeller Plaza, New York, New York 10112 (each such date. a
“Closing Date”), unless another place is agreed to by
the parties hereto, or remotely via the exchange of executed
documents.
(b)
The Initial
Closing with respect to the purchase of the Notes shall take place
on April 16, 2007 or such other date mutually agreed upon by the
parties hereto (the “Initial Closing Date”). With
respect to the sale and purchase of additional Notes, the Company,
upon five (5) days notice may set additional Closings with respect
to additional Notes to be sold hereunder (each, an
“Additional Closing”) on dates determined by the
Company (each, an “Additional Closing Date” and
together, the “Additional Closing Dates”).
Interest shall be earned on the Notes from a Closing Date with
respect to the Notes purchased on that Closing Date.
(c)
At each Closing
or within two Business Days thereafter, the Company shall deliver
to the Purchaser the Notes being purchased, in each case, dated as
of the relevant Closing Date, against delivery by the Purchaser to
the Company of the purchase price therefor. In each case,
payment of such purchase price shall be by wire transfer of
immediately available funds to an account or accounts previously
designated in writing by the Company.
ARTICLE III.
CONDITIONS TO THE OBLIGATIONS
OF THE PURCHASER TO PURCHASE THE NOTES
Section
3.1
Conditions to
the Initial Closing . The obligation of the
Purchaser to purchase the Notes, to pay the purchase price therefor
at the Initial Closing and to perform any obligations hereunder
shall be subject to the satisfaction of the following conditions on
or before the Initial Closing Date, as determined by, or waived by,
the Purchaser; provided , however , that any waiver
of a condition shall not be deemed a waiver of any breach of any
representation, warranty, agreement, term or covenant or of any
misrepresentation by the Company.
(a)
Representations and
Warranties . The representations
and warranties of the Company contained in Article IV shall be
true, in all material respects (without giving effect to any
limitation as to “materiality” or “Material
Adverse Effect” set forth therein), at and as of the Initial
Closing Date. There shall exist no Default or Event of
Default at the time of the issuance of the Notes.
7
(b)
Compliance
with this Agreement . The Company shall
have performed and complied in all material respects with all of
the agreements and conditions set forth or contemplated herein or
in the Merger Agreement that are required to be performed or
complied with by the Company on or before the Initial Closing
Date.
(c)
Purchase of
Notes Permitted by Applicable Laws . The acquisition of
and payment for the Notes (a) shall not be prohibited by any
Requirement of Law, (b) shall not subject the Purchaser to any
penalty under or pursuant to any Requirement of Law, and (c) shall
be permitted by all Laws to which any Purchaser is
subject.
(d)
Consents and
Approvals . All governmental and
third-party consents and approvals necessary in connection with the
offer, sale and issuance of the Notes shall have been obtained and
remain in full force and effect and shall be satisfactory to the
Purchaser; and no Requirement of Law shall be applicable, or event
shall have occurred, that seeks to enjoin, restrain, restrict, set
aside or prohibit, or impose materially adverse conditions upon,
the issuance of the Notes.
(e)
No Material
Judgment or Order . There shall not be in
effect on the Initial Closing Date any judgment, injunction or
order of a court of competent jurisdiction or any ruling of any
Governmental Entity or any condition imposed under any Requirement
of Law which, in the judgment of the Purchaser, would prohibit the
purchase of the Notes hereunder or subject the Purchaser to any
penalty under or pursuant to any Requirement of Law if the Notes
were to be purchased hereunder.
(f)
Material
Adverse Change . There shall not have
occurred at any time since January 31, 2007, any Material Adverse
Change.
(g)
No
Litigation . No action, suit,
proceeding or investigation shall have been instituted or
threatened before, and no order, injunction or decree shall have
been entered by, any Governmental Entity, in each case seeking to
enjoin, restrain, restrict, set aside or prohibit, to impose
material conditions upon, or to obtain substantial damages in
respect of, the issuance of the Notes.
(h)
Notes . The Notes being
purchased at the Initial Closing shall have been duly executed and
delivered by the Company.
(i)
Collateral
Documents . The Collateral
Documents, substantially in the form attached hereto as Exhibit
3.1(i), shall have been duly executed and delivered by all of the
parties thereto.
Section
3.2
Conditions to
Each Additional Closing . The obligation of the
Purchaser to purchase additional Notes, to pay the purchase prices
therefor at each Additional Closing and to perform any obligations
hereunder with respect to such purchase shall be subject to the
satisfaction of the following conditions on or before the relevant
Additional Closing Date, as determined by, or waived by, the
Purchaser; provided , however , that any waiver of a
condition shall not be deemed a waiver of any breach of any
representation, warranty, agreement, term or covenant or of any
misrepresentation by the Company.
8
(a)
Representations and
Warranties; No Default . The representations
and warranties of the Company contained in Article IV shall be
true, in all material respects (without giving effect to any
limitation as to “materiality” or “Material
Adverse Effect” set forth therein), at and as of such
Additional Closing Date. There shall exist no Default or
Event of Default at the time of the issuance of the
Notes.
(b)
Purchase of
Notes Permitted by Applicable Laws . The acquisition of
and payment for the Notes (a) shall not be prohibited by any
Requirement of Law, (b) shall not subject the Purchaser to any
penalty under or pursuant to any Requirement of Law, and (c) shall
be permitted by all Laws to which the Purchaser is
subject.
(c)
Consents and
Approvals . All governmental and
third-party consents and approvals necessary in connection with the
offer, sale and issuance of the Notes shall have been obtained and
remain in full force and effect and shall be satisfactory to the
Purchaser; and no Requirement of Law shall be applicable, or event
shall have occurred, that seeks to enjoin, restrain, restrict, set
aside or prohibit, or impose materially adverse conditions upon,
the issuance of the Notes.
(d)
No Material
Judgment or Order . There shall not be in
effect on the Additional Closing Date any judgment, injunction or
order of a court of competent jurisdiction or any ruling of any
Governmental Entity or any condition imposed under any Requirement
of Law which, in the judgment of the Purchaser, would prohibit the
purchase of the Notes hereunder or subject the Purchaser to any
penalty under or pursuant to any Requirement of Law if the Notes
were to be purchased hereunder.
(e)
Material
Adverse Change . There shall not have
occurred at any time since January 31, 2007, any Material Adverse
Change.
(f)
No Change in
Company Recommendation . The Company Board
shall not have failed to make the Company Recommendation in
accordance with Section 5.4 of the Merger Agreement or withdrawn or
adversely modified or changed, the Company
Recommendation.
(g)
No
Litigation . No action, suit,
proceeding or investigation shall have been instituted or
threatened before, and no order, injunction or decree shall have
been entered by, any Governmental Entity, in each case seeking to
enjoin, restrain, restrict, set aside or prohibit, to impose
material conditions upon, or to obtain substantial damages in
respect of, the issuance of the Notes.
(h)
Notes . The Notes being
issued at the Additional Closing shall have been duly executed and
delivered by the Company.
(i)
Solvency
. Each of
the Company and its Subsidiaries is Solvent and will be Solvent
upon the completion of all transactions contemplated to occur at
the Additional Closing.
9
(j)
Certificate
. The
Company shall have delivered to the Purchaser a certificate
executed by the Chief Executive Officer of the Company confirming
that the conditions set forth in Section 3.2(a), 3.2(b), 3.2(c),
3.2(d), 3.2(e) and 3.2(f) have been duly satisfied.
ARTICLE IV.
CONDITIONS TO THE OBLIGATION
OF THE COMPANY TO ISSUE AND SELL THE NOTES
The obligations of the Company to
issue and sell the Notes and to perform its other obligations
hereunder relating thereto shall be subject to the reasonable
satisfaction as determined by, or waived by, the Company of the
following conditions on or before each Closing Date:
Section
4.1
Representations and
Warranties . The representations
and warranties of the Purchaser contained in Article VI shall be
true, in all material respects, at and as of such Closing
Date.
Section
4.2
Compliance
with this Agreement . The Purchaser shall
have performed and complied with all of its agreements and
conditions set forth or contemplated herein that are required to be
performed or complied with by the Purchaser on or before such
Closing Date.
Section
4.3
No
Litigation . No action, suit,
proceeding or investigation shall have been instituted or
threatened before, and no order, injunction or decree shall have
been entered by, any Governmental Entity, in each case seeking to
enjoin, restrain, restrict, set aside or prohibit, to impose
material conditions upon, or to obtain, substantial damages in
respect of, the issuance of the Notes.
ARTICLE V.
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
Section
5.1
Representations and
Warranties of the Company . The Company
represents and warrants to the Purchaser as of the Initial Closing
Date (except as set forth in the disclosure schedules attached to
this Agreement) as follows:
(a)
Authority
. The
Company and each of its Subsidiaries has the requisite power and
authority to execute, deliver and perform its obligations under
this Agreement and each of the Investment Documents to which it is
a party. All action necessary (including the consent of
equity holders where required) for the execution, delivery and
performance by the Company of this Agreement and by the Company and
each of its Subsidiaries of each Investment Document to which it is
a party.
(b)
Enforceability
. This
Agreement and each of the Investment Documents are and, when
executed and delivered, will be, the legal, valid and binding
obligation of the Company and its Subsidiaries signatory to such
documents, enforceable in accordance with their respective terms,
except as enforceability may be limited by
10
