Exhibit 2.20
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(FORM OF)
NOTE PREPAYMENT AGREEMENT
This NOTE PREPAYMENT AGREEMENT ("Agreement") is made and entered into
as of June ___, 2003 between Kendle International Inc., an Ohio corporation
("Kendle" or the "Company"), and _______________ the "Payee". Kendle and the
Payee are referred to herein collectively as the "Parties".
W I T N E S S E T H:
WHEREAS, the Payee is the holder of a convertible subordinated note
dated February 26, 2002 issued by Kendle in the original principal amount
of ___________, a copy of which is attached hereto as EXHIBIT A (the "Note");
and,
WHEREAS, the Note was issued as part of a series of other convertible
subordinated notes described on EXHIBIT B attached hereto in connection with the
Asset Purchase Agreement dated as of January 29, 2002 among Kendle, Clinical and
Pharmacologic Research, Inc. a West Virginia corporation ("CPR"), and certain
shareholders of CPR (the "APA"); and
WHEREAS, the Payee has initiated negotiations regarding and has
requested that Kendle satisfy its payment obligations under the Note as soon as
possible in advance of the Maturity Date (as defined in the Note) and Kendle is
willing to so satisfy its payment obligations; and,
WHEREAS, to induce Kendle to prepay the Note, the Payee has agreed to
provide a release to Kendle and to affirm such Payee's obligations under certain
documents entered into pursuant to the APA;
NOW THEREFORE, in consideration of the mutual undertakings contained
herein, the Parties agree as follows:
1. Prepayments of Note.
(a) On and subject to the terms and conditions of this Agreement, Kendle
agrees to satisfy its payment obligations under the Note by making a
series of four (4) payments, said payments to be initiated either by
Kendle's "call" or the Payee's "put" in accordance with the terms of
this Agreement. The four (4) payments will be made on the following
dates: (i) June 30, 2003; (ii) January 8, 2004; (iii) June 30, 2004;
and (iv) January 10, 2005 (collectively, the "Payment Dates").
The June 30, 2003 payment shall be in the amount of _________
of which represents the discounted principal to be paid, and _________
of which represents accrued but unpaid interest. After giving effect to
the June 30, 2003 payment, the remaining principal outstanding of the
Note shall be ________.
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The January 8, 2004 payment shall be in the amount of _______
of which represents the discounted principal to be paid, and
____________ of which represents accrued but unpaid interest from June
30, 2003 to January 8, 2004 (it being understood and agreed that the
payment of interest otherwise due on December 31, 2003 will be made on
January 8, 2004 in connection with the January 8, 2004 payment). After
giving effect to the January 8, 2004 payment, the remaining principal
outstanding of the Note shall be (__).
The June 30, 2004 payment shall be in the amount of (__), of
which represents the discounted principal to be paid, and (__) Dollars
of which represents accrued but unpaid interest from January 8, 2004 to
June 30, 2004. After giving effect to the June 30, 2004 payment, the
remaining principal outstanding of the Note shall be (__) Dollars.
The January 10, 2005 payment shall be in the amount of (__),of
which represents the discounted principal to be paid, and (__) of which
represents accrued but unpaid interest from June 30, 2004 to January
10, 2005 (it being understood and agreed that the payment of interest
otherwise due on December 31, 2004 will be made on January 10, 2005 in
connection with the January 10, 2005 payment).
After giving effect to the January 10, 2005 payment, the Note
shall be fully paid and all obligations of Kendle with respect thereto
shall be extinguished. Simultaneously with the making of the January
10, 2005 payment, the Payee shall deliver to Kendle the original of the
Note, which Kendle shall cancel. Kendle and the Payee acknowledge and
affirm the Payee's right to convert the unpaid principal balance of the
Note into the corresponding pro rata portion of the Convertible Shares
(as defined in the Note) in accordance with the terms and conditions of
the Note.
All payments under this Agreement shall be made by wire
transfer of immediately available funds or by check. The reductions to
the principal amount of the Note outstanding to which Kendle and the
Payee have agreed under this Agreement shall be effective irrespective
of whether such reductions are noted on the front or reverse side of
the Note.
(b) Kendle has the right (hereby granted by the Payee) to call
the Note to the extent necessary to make the payments (or any of them)
described above in Section 1(a). Any such call shall be made in writing
not less than thirty (30) days prior to the applicable Payment Date.
The Payee shall have the obligation to accept any such call.
(c) The Payee has the right (hereby granted by Kendle) to put
the Note to the extent necessary to cause Kendle to make the payments
(or any of them) described above in Section 1(a). Any such put shall be
made in writing not less than twenty-five (25) days prior to the
applicable Payment Date. Kendle shall have the obligation to honor any
such put.
2. Representations and Warranties of the Payee. The Payee represents
and warrants to Kendle that the statements contained in this Section 2 are
correct and complete as of the date of this Agreement and will be correct and
complete as of each Payment Date.
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(a) The Note to be delivered by the Payee to Kendle
simultaneously with the Closing evidences the only indebtedness owed by
Kendle to the Payee. The Note to be delivered by the Payee to Kendle
has not been altered or modified in any manner since its issuance to
the Payee on or about February 26, 2002. Payee has destroyed or
provided to Kendle any reproductions or copies that Payee has made of
the Note.
(b) The Payee has not at any time transferred, pledged,
hypothecated, or granted a security interest or other encumbrance,
mortgage, claim or charge, in any interest in the Note. The Payee is
not a party to any agreement, arrangement or understanding with respect
to the ownership of the Note other than in connection with the APA and
the documents executed for Kendle's benefit pursuant to the APA. The
Payee owns the Note, has good and marketable title thereto and is free
to execute and deliver this Agreement and to perform such Payee's
obligations hereunder. This Agreement constitutes the valid and binding
agreement of the Payee, enforceable against the Payee in accordance
with its terms.
(c) The execution, delivery and performance by the Payee of
this Agreement, and the consummation of the transactions contemplated
hereby, does not and will not conflict with or result in a violation of
or a default under (with or without giving of notice or the lapse of
time or both) (i) any law or regulation applicable to Payee or any of
the Payee's properties or assets, or (ii) any material contract,
agreement or other instrument to which Payee is a party or by which
Payee or any of its properties or assets may be bound or affected. No
approval or consent from any third party is required to be obtained or
made by Payee in connection with the execution and delivery of this
Agreement or the consummation of the transactions contemplated hereby
except as has already been obtained.
3. Warranties and Representations of Kendle; Payee's Acknowledgments.
Kendle hereby warrants and represents to the Payee that the statements contained
in this Section 3 are correct and complete as of the date of this Agreement and
will be correct and complete as of each Payment Date.
(a) Authorization, etc. Kendle has the corporate power and
authority to execute and deliver this Agreement, to perform its
obligations hereunder, and to consummate the transactions contemplated
hereby. The execution and delivery by Kendle of this Agreement, and the
consummation of the transactions contemplated hereby, have been, duly
authorized by all requisite corporation action of Kendle. Kendle has
duly executed and delivered this Agreement. This Agreement constitutes
the legal, valid and binding obligations of Kendle, enforceable against
it in accordance with its terms.
(b) No Conflicts, etc. The execution, delivery and performance
by Kendle of this Agreement, and the consummation of the transactions
contemplated hereby, does not conflict with or result in a violation of
or a default under (with or without the giving of notice of the lapse
of time or both) (i) any law or regulation applicable to Kendle or any
of its properties or assets, (ii) the organizational documents of any
of Kendle, (iii) any material contract, agreement or other instrument
to which Kendle is a party or by which
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Kendle or any of its properties or assets may be bound of affected. No
approval or consent from any third party, including without limitation
the Lenders under that certain Credit Agreement dated June 3, 2002, as
amended, is required to be obtained or made by Kendle in connection
with the execution and delivery of this Agreement or the consummation
of the transactions contemplated hereby except as has already been
obtained.
(c) KENDLE MAKES NO (AND HEREBY DISCLAIMS ANY) WARRANTY OR
REPRESENTATION WITH RESPECT TO THE BUSINESS, CONDITION (FINANCIAL OR
OTHERWISE), PROSPECTS, ASSETS OR LIABILITIES OF KENDLE OR THE PRESENT
OR FUTURE VALUE OF THE SHARES OF COMMON STOCK OF KENDLE. The Payee
acknowledges that by accepting the payments described in Section 1(a)
above, the Payee is forever waiving the Payee's rights to convert the
Note into that number of shares representing the pro rata portion of
common stock, no par value, of Kendle with respect to the principal
balance of the Note paid pursuant hereto (the "Kendle Shares"). The
Payee understands that: (a) the Note provided the Payee the right to
convert the Note into Kendle Shares at any time during which the Note
is outstanding and (b) the Note also provided Kendle the right to force
the conversion of the Note into Kendle Shares if the Note remained
outstanding on the Final Maturity Date (as defined in the Note) if the
closing bid price as reported on the Nasdaq National Market of the
Kendle Shares is equal to or exceeds $19.0935 for a period of thirty
(30) consecutive trading days. The Payee further acknowledges that, by
accepting the payments described in Section 1(a) above, the Payee is
foregoing any economic benefit the Payee could receive from the
possible appreciation of the value of the Kendle Shares, and hereby
expressly affirms that Kendle has made no representations or warranties
of any nature whatsoever relating to the present or future value of
such Kendle Shares.
4. Parties' Affirmation of Other Obligations. Each Party hereto hereby
acknowledges and affirms all of his or its obligations under the documents
referenced on EXHIBIT C attached hereto (the "CPR Documents"). Each Party hereto
represents and warrants to the other that such Party has not at any time
breached or attempted to breach any of the provisions of any of the CPR
Documents and that such Party will continue to perform all of his or its duties
under the CPR Documents.
5. Closing Conditions. The Parties acknowledge that this Agreement has
been executed as part of a series of similar agreements providing for
prepayments (the "Prepayment Agreements") to the holders of notes issued by
Kendle as described on Exhibit B hereto. Kendle shall have no obligation to pay
to the Payee any of the payments described in Section 1(a)above or consummate
any of the transactions contemplated by this Agreement until all of the payees
listed on Exhibit B hereto have executed their own respective Note Prepayment
Agreements and performed all of their respective obligations thereunder.
6. Release.
(a) In consideration for Kendle's payments hereunder, Payee,
individually, and on behalf of any other person claiming by or through
the Payee, to the fullest extent
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permitted by applicable law, hereby irrevocably and unconditionally,
fully and forever acquits, releases and discharges Kendle, each of its
subsidiaries and affiliates, and each of their respective individual,
joint or mutual, past, present and future officers, directors,
stockholders, employees, agents, and representatives (in their
respective capacities as such) and their successors and assigns
(individually, a "Releasee" and collectively, "Releasees"), from any
and all actions, claims, demands, proceedings, causes of action,
controversies, suits, charges, complaints, reckonings, bonds, bills,
specialties, covenants, orders, judgments, promises, contracts,
agreements, debts, accounts, variance, damages, obligations and
liabilities whatsoever, whether known or unknown, existing or
contingent ("Claims") which the Payee and the Payee's respective
affiliates, heirs, executors, administrators, successors and assigns
now have, have ever had or may hereafter have against the respective
Releasees arising after the Closing Date (as defined in the APA) but
prior to the date of this Agreement except for any Claims arising out
of or related to the CPR Documents.
(b) The Payee hereby irrevocably covenants to refrain from,
directly or indirectly, asserting any Claim, or commencing, instituting
or causing to be commenced, any proceeding of any kind against any
Releasee, based upon any matter purported to be released hereby.
(c) The Payee acknowledges and agrees that the Payee has had
an opportunity to seek advice of counsel in connection with this
Agreement and that the covenants contained herein are reasonable in
geographical and temporal scope and in all other respects.
(d) The provisions of this Agreement shall be construed
broadly so as to effectuate the intent of the Parties, but not so
broadly as to require that any provision must be declared or be
determined by any court to be illegal or invalid. If any provision of
this Agreement is held invalid or unenforceable by any court of
competent jurisdiction, the other provisions in this Agreement will
remain in full force and effect. Any provision of this Agreement held
invalid or unenforceable only in part or degree will remain in full
force and effect to the extent not held invalid or unenforceable.
7. Entire Agreement. This Agreement constitutes the entire agreement
between the Parties relating to the subject matter hereof and supersedes any
prior understandings, agreements or representations by or between the Parties,
written or oral, to the extent they are related in any way to the subject matter
hereof. Nothing in this Agreement shall be deemed to expand or to limit the
rights or obligations of Payee or Kendle under any of the CPR Documents.
8. Submission to Jurisdiction. To the fullest extent permitted by law,
the Payee and Kendle hereby irrevocably and unconditionally:
(a) agree that any action, suit or proceeding by any person
arising from or relating to this Agreement or any statement, course of
conduct, act, omission or event in connection with this Agreement
(collectively, "Related Litigation") may be brought in any state or
federal court of competent jurisdiction sitting in Hamilton County,
Ohio and submit to the non-exclusive jurisdiction of such court:
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(b) acknowledge that such court will be the most convenient
forum for any Related Litigation, waive any objection to the laying of
venue of any Related Litigation brought in any such court, waive any
claim that any Related Litigation brought in any such court has been
brought in an inconvenient forum, and waive any right to object, with
respect to any Related Litigation, that such court does not have
jurisdiction over it; and
(c) waive the right to trial by jury in any Related
Litigation.
9. Assignment. This Agreement shall be binding on the Company's
successors and assigns.
10. Governing Law. This Agreement shall be governed by and construed in
accordance with the domestic laws of the State of Ohio without giving effect to
any choice of law provision or rule (whether of the State of Ohio or any other
jurisdiction) that would cause the application of the laws of any jurisdiction
other than the State of Ohio.
11. Counterparts. This Agreement may be executed by the parties hereto
and separate counterparts, each of which when so executed and delivered shall be
an original, but all such counterparts shall together constitute one and the
same instrument.
12. Headings. The headings contained in this Agreement are for
reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement or any term hereof.
[Remainder of page intentionally left blank; signature page follows.]
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IN WITNESS WHEREOF, the Parties have executed this Agreement as of the
date set forth above.
KENDLE INTERNATIONAL INC.,
an Ohio corporation
By:
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Karl Brenkert, III,
Senior Vice President and
Chief Financial Officer
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YOLANDA WILLIAMS
EXHIBIT A
[SEE NOTE ATTACHED]
EXHIBIT B
Notes dated February 26, 2002 were issued by Kendle International Inc.
to the following Payees in the following original principal amounts:
1. Thomas S. Clark, M.D. in the sum of $____________;
2. Yoland F. Williams in the sum of $__________;
3. J. Hiller Hardie in the sum of $__________;
4. Charles T. Clark in the sum of $__________;
5. Jennifer Ogden in the sum of $__________; and
6. E. Stuart Clark in the sum of $__________.
EXHIBIT C
CPR DOCUMENTS
THOMAS S. CLARK, M.D.
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Asset Purchase Agreement among Kendle International Inc. ("Kendle"),
Clinical and Pharmacologic Research, Inc. ("CPR"), Thomas S. Clark, M.D., E.
Stuart Clark and Charles T. Clark dated January 29, 2002 ("APA").
Consulting Agreement dated as of January 29, 2002 by and between Kendle
and Thomas S. Clark, M.D.
Non-Competition and Non-Disclosure Agreement dated as of January 29,
2002 between Kendle and Thomas S. Clark, M.D.
YOLANDA F. WILLIAMS
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Non-Competition and Non-Disclosure Agreement dated as of January 29,
2002 between Kendle and Yolanda F. Williams.
Employment Agreement dated as of January 29, 2002 between Kendle and
Yolanda F. Williams.
J. HILLER HARDIE
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Non-Competition and Non-Disclosure Agreement dated as of January 29,
2002 between Kendle and J. Hiller Hardie.
CHARLES T. CLARK
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APA.
Right of First Offer Agreement dated as of January 29, 2002 by CPR
Communications, Inc., Charles T. Clark and Kendle.
Consulting Agreement dated as of January 29, 2002 by and between Kendle
and Charles T. Clark.
Non-Competition and Non-Disclosure Agreement dated as of January 29,
2002 between Kendle and Charles T. Clark.
JENNIFER M. OGDEN
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No agreements.
E. STUART CLARK
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APA.
Non-Competition and Non-Disclosure Agreement dated as of January 29,
2002 between Kendle and E. Stuart Clark.