Exhibit 10.3
REINVESTMENT
AGREEMENT
THIS REINVESTMENT AGREEMENT, dated
as of August 4, 2009 (this “ Agreement ”),
is entered into by and among Anesiva, Inc., a Delaware corporation
(the “ Company ”), Arcion Therapeutics, Inc., a
Delaware corporation (“ Arcion ”), and the
undersigned investors (each an “ Investor ” and
collectively, the “ Investors ”). Unless defined
herein, capitalized terms used herein shall have the meanings
provided to such terms in the below referenced Securities Purchase
Agreement.
R E C I T A
L S :
A. WHEREAS, the Company and the
Investors are party to that certain Securities Purchase Agreement,
dated as of January 20, 2009, as amended by that certain
Amendment No. 1 to Securities Purchase Agreement, dated as of
April 1, 2009, as further amended by that certain Amendment
No. 2 to Securities Purchase Agreement, dated as of
August 4, 2009 (as so amended and as further as amended,
restated or otherwise modified and in effect from time to time, the
“ Securities Purchase Agreement ”), pursuant to
which the Investors purchased securities (the “
Securities ”) from the Company in the amounts set
forth on Schedule I hereto.
B. WHEREAS, certain of the Investors
are holders of 7% Senior Notes due 2010 (the “ Notes
”) in the amounts set forth on Schedule I hereto
issued pursuant to that certain Indenture, dated as of
April 2, 2009, as supplemented by that certain Supplemental
Indenture, dated as of April 2, 2009 (the “ First
Supplemental Indenture ”), as further supplemented by
that certain Second Supplemental Indenture, dated as of
April 28, 2009 (as so supplemented and as further
supplemented, amended, restated or otherwise modified and in effect
from time to time, the “ Indenture ”), by and
between the Company and the Bank of New York Mellon Trust Company,
N.A., as trustee (the “ Trustee ”).
C. WHEREAS, on the date hereof, the
Company, Arca Acquisition Corporation, a Delaware corporation and a
wholly owned subsidiary of the Company (“ Merger Sub
”), Arcion and each of the stockholders of Arcion are
entering into an Agreement and Plan of Merger (as amended, restated
or otherwise modified and in effect from time to time, the “
Merger Agreement ”), providing for the merger of
Merger Sub with and into Arcion (the “ Merger
”).
D. WHEREAS, pursuant to
Section 8.2 (Change of Control) of the Securities Purchase
Agreement, concurrently with the consummation of the Merger, the
Company shall redeem all of the outstanding Securities at a
redemption price in cash equal to 100% of the aggregate principal
amount of the Securities being redeemed, plus all accrued but
unpaid returns thereon through the date of redemption.
E. WHEREAS, pursuant to
Section 5.1 (Right to Require Repurchase) of the First
Supplemental Indenture, following the consummation of the Merger,
the Company shall offer to repurchase all of the Notes from the
holders thereof at a purchase price equal to the Change of Control
Repurchase Price (as defined in the First Supplemental Indenture),
plus all accrued but unpaid interest thereon to, but excluding, the
date of repurchase.
F. WHEREAS, each Investor wishes to
reinvest the gross proceeds of the redemption or repurchase of any
and all of its outstanding Securities and Notes, together with any
accrued but unpaid returns and interest thereon, in connection with
the Merger by purchasing common stock, par value $0.001 per share,
of the Company (“ Common Stock ”) at a price per
share of $0.30.
NOW THEREFORE, in consideration of
the mutual conditions and agreements set forth herein and other
good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties hereto hereby agree as
follows:
1. Agreement to Reinvest
Securities Proceeds . Immediately following the redemption by
the Company of the Securities held by the Investors, each Investor
hereby agrees to purchase from the Company, and the Company hereby
agrees to issue and sell to each Investor, Common Stock in an
amount set forth opposite such Investor’s name on Schedule
I hereto for the purchase price of $0.30 per share. The
aggregate purchase price of Common Stock purchased by each Investor
pursuant to this Section 1 shall equal the gross proceeds of
the redemption of any and all of the outstanding Securities held by
such Investor, together with any accrued but unpaid returns thereon
through the redemption date.
2. Agreement to Reinvest Note
Proceeds . Each Investor that is a holder of Notes agrees to
exercise its right pursuant to Section 5.1 of the First
Supplemental Indenture to require the Company to repurchase all of
such Investor’s Notes on the terms and conditions set forth
in Article 5 of the First Supplemental Indenture following the
consummation of the Merger. Concurrently with the repurchase by the
Company of the Notes held by the Investors, each Investor hereby
agrees to purchase from the Company, and the Company hereby agrees
to sell to each Investor, Common Stock in an amount set forth
opposite such Investor’s name on Schedule I hereto for
the purchase price of $0.30 per share. As payment in full of the
purchase price of Common Stock purchased by each Investor pursuant
to this Section 2, each such Investor hereby directs the
Company to remit any and all amounts due to such Investor pursuant
to the Indenture on account of the repurchase of its Notes,
including any accrued but unpaid interest thereon to, but
excluding, the date of the repurchase, by wire transfer of
immediately available funds to an account designated in writing by
the Company. The aggregate purchase price of Common Stock purchased
by each Investor pursuant to this Section 2 shall equal the
gross proceeds of the repurchase of any and all of the outstanding
Notes held by such Investor, together with any accrued but unpaid
interest thereon through the redemption date.
3. Representations and Warranties
of Investors . Each Investor, severally and not jointly,
represents and warrants to the Company and Arcion as follows as of
the date hereof and as of the date(s) of purchase by such Investor
of any Common Stock pursuant to Section 1 or Section 2
hereof (capitalized terms used in this Section 3 and not
otherwise defined herein or in the Securities Purchase Agreement
shall have the meanings provided to such terms in the Merger
Agreement):
3.1. Organization . Such
Investor is duly organized, validly existing and in good standing
under the laws of the jurisdiction in which it is
organized.
3.2. Authorization;
Enforceability . Such Investor has the requisite power and
authority (including all requisite power and authority as a
corporation or other entity) to enter into this Agreement and to
perform its obligations hereunder. The execution and delivery of
this Agreement by such Investor and the performance of its
obligations hereunder have been duly authorized by all necessary
action on the part of such Investor (including authorization by the
board of directors or other managing body and by the stockholders
or other securityholders of such Investor). This Agreement has been
duly authorized and validly executed and delivered by such Investor
and constitutes a legal, valid and binding obligation of such
Investor, enforceable against the such Investor in accordance with
its terms, subject to bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and similar laws of general
applicability relating to or affecting creditors’ rights and
to general equity principles.
3.3. Consents and Approvals; No
Violations.
(a) The execution and delivery of
this Agreement by such Investor does not, and the performance by
such Investor of such Investor’s obligations hereunder will
not, (i) conflict with
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or result in any violation or breach of the
certificate of incorporation, by-laws or other organization
documents of such Investor, (ii) to the Investor’s
knowledge, materially conflict with or result in any material
violation or material breach of, or constitute (with or without
notice or lapse of time, or both) a material default (or give rise
to a right of termination, cancellation or acceleration of any
obligation or loss of any material benefit) under, require a
consent or waiver under, require the payment of a material penalty
under, any of the terms, conditions or provisions of any material
contract to which such Investor is a party or by which such
Investor or such Investor’s Securities or Notes may be bound
or (iii) result in the imposition of any lien on any of the
Securities or Notes held by such Investor.
3.4. Title to Securities or
Notes . Such Investor holds of record and owns the aggregate
principal amount of Notes and Securities set forth opposite the
name of such Investor on Schedule I hereto, free and clear
of any lien.
3.5. No Broker’s or
Finder’s Fees . There are no investment bankers, brokers,
advisors, finders or other intermediaries that have been retained
by or are authorized to act on behalf of such Investor who are
entitled to any fee or commission in connection with the
transactions contemplated by this Agreement.
3.6. Private Placement . Such
Investor understands and acknowledges that the issuance of the
shares of Common Stock pursuant to this Agreement will not be
registered under the Securities Act of 1933, as amended (the
“ Securities Act ”) and that any shares of
Common Stock will be issued to such Investor in a private placement
transaction effected in reliance on an exemption from the
registration requirements of the Securities Act and in reliance on
exemptions from the registration or qualification requirements of
applicable Blue Sky Laws. Such Investor acknowledges that any
shares of Common Stock so issued to such Investor will be
“restricted securities” within the meaning of Rule
144(a)(3) under the Securities Act. Such Investor represents and
acknowledges that such Investor is familiar with Rule 144 under the
Securities Act as presently in effect and understands the
restrictions and resale limitations imposed thereby and by the
Securities Act.
3.7. Limitations on Transfer
. Such Investor understands and agrees that any such shares of
Common Stock cannot be offered, resold or otherwise transferred
except pursuant to (a) an effective registration statement
under the Securities Act covering such offer, sale or transfer and
such offer, sale or transfer is made in accordance with such
registration statement, or (b) an available exemption from
registration. Such Investor hereby covenants and agrees that such
Investor will not offer, sell or otherwise transfer any such shares
of Common Stock except in compliance with the terms of this
Agreement and with applicable federal and Blue Sky Laws.
3.8. Restrictive Legends .
The certificates representing any shares of Common Stock issued
pursuant to the Merger shall bear, in addition to any other legends
required under applicable Blue Sky Laws, a legend in substantially
the following form:
(a) These securities have not been
registered under the Securities Act of 1933, as amended (the
“Securities Act”), or under any applicable state
securities or “blue sky” laws. These securities may not
be sold, offered, pledged, hypothecated or otherwise transferred
except pursuant to registration under the Securities Act or
pursuant to an available exemption from registration. The issuer of
these securities may require an opinion of counsel reasonably
satisfactory to the issuer, in form and substance reasonably
satisfactory to the issuer, to the effect that any sale or transfer
of these securities will be in compliance with the Securities Act
and any applicable state securities or “blue sky”
laws.
(b) In order to prevent any transfer
from taking place in violation of applicable law or the terms of
this Agreement, the Company may cause a stop transfer order to be
placed with its transfer agent with respect to any shares of Common
Stock issued to such Investor pursuant to the
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