This Note Purchase
Agreement (the “Agreement”) is entered into, effective
as of July 9, 2009, between EPIX Pharmaceuticals, Inc. (the
“Company”) and Loomis, Sayles & Company, L.P.
(“Holder”).
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 26881QAB7 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:
(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 inves
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