EXHIBIT 10.52
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NOTE PURCHASE AGREEMENT
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This NOTE PURCHASE AGREEMENT (as amended, modified or otherwise
supplemented from time to time, this "Purchase Agreement"), dated as of January
8, 2004, is entered into by and between Tanabe Holding America, Inc.
("Purchaser") and VIVUS, Inc. ("Company").
NOW THEREFORE, in consideration of the covenants, conditions and
agreements set forth herein, the parties agree as follows:
ARTICLE 1
DEFINITIONS
1.1 "Advance" shall have the meaning given in Section 2.1 of the
Purchase Agreement.
1.2 "Business Day" shall mean any day on which commercial banks are not
authorized or required to close in San Francisco, California.
1.3 "Carcinogenicity Studies" shall mean animal studies designed to
evaluate the carcinogenic effects, if any, of long-term exposure to Compound..
1.4 "Closing Prices Per Share" shall mean, with respect to the Common
Stock, for any day, (i) the last reported bid price regular way on the Nasdaq
National Market or, (ii) if the Common Stock is not quoted on the Nasdaq
National Market, the last reported sale price regular way per share or, in case
no such reported sale takes place on such day, the average of the reported
closing bid and asked prices regular way, in either case, on the principal
national securities exchange on which the Common Stock is listed or admitted to
trading, or (iii) if the Common Stock is not quoted on the Nasdaq National
Market or listed or admitted to trading on any national securities exchange, the
average of the closing bid prices in the over-the-counter market as furnished by
any New York Stock Exchange member firm selected from time to time by the
Company for that purpose.
1.5 "Common Stock" shall mean the common stock, par value $0.001 per
share, of the Company.
1.6 "Compound" shall have the meaning given in the License Agreement.
1.7 "Compound-Related Intellectual Property" shall mean collectively
the Bulk Drug Tablets, Bulk Drug Substance, Compound, Development Plan,
Development Work, Drug Approval Applications, IND, Information, Product,
Trademarks, Vivus Know-How (as such terms are each defined in the License
Agreement), and license rights granted to Company pursuant to Section 2.1 of the
License Agreement.
1.8 "Default" shall mean any event or circumstance not yet constituting
an Event of Default but which, with the giving of any notice or the lapse of any
period of time or both, would become an Event of Default.
1.9 "Environmental Action" shall mean any complaint, summons, citation,
notice, directive, order, claim, litigation, investigation, judicial or
administrative proceeding, judgment, letter or other communication from any
governmental agency, department, bureau, office or other authority, or any third
party involving violations of Environmental Laws or releases of Hazardous
Materials (i) from any assets, properties or businesses of Company or any of its
Subsidiary(-ries) or any predecessor in interest, (ii) from properties or
businesses adjoining any properties or businesses of Company or any of its
Subsidiary(-ries) or any predecessor in interest or (iii) from or onto any
facilities which received Hazardous Materials generated by Company or any of its
Subsidiary(-ries) or any predecessor in interest.
1.10 "Environmental Law" shall mean any present or future statute,
ordinance, rule, regulation, order, judgment, decree, permit, license or other
binding determination of any governmental authority imposing liability or
establishing standards of conduct for protection of the environment as the same
may be amended or supplemented from time to time.
1.11 "Environmental Liabilities" shall mean all liabilities, monetary
obligations, remedial actions, losses, damages, punitive damages, consequential
damages, treble damages, costs and expenses (including all reasonable fees,
disbursements and expenses of counsel, experts and consultants and costs of
investigation and feasibility studies), fines, penalties, sanctions and interest
incurred as a result of (i) any claim or demand by any governmental authority or
any third party which relates to any environmental condition or a release of
Hazardous Materials or (ii) any breach by Company or any of its
Subsidiary(-ries) of any Environmental Law.
1.12 "ERISA" shall mean the Employee Retirement Income Security Act of
1974, as amended from time to time, and the rules and regulations and published
interpretations thereof.
1.13 "Event of Default" shall have the meaning given to that term in
Section 5.1.
1.14 "Facility Amount" shall mean an amount equal to $8,500,000.
1.15 "GAAP" shall mean generally accepted accounting principles and
practices as promulgated by the Financial Accounting Standards Board and as in
effect in the United States of America from time to time, consistently applied.
Unless otherwise indicated in this Purchase Agreement, all accounting terms used
in this Purchase Agreement shall be construed, and all accounting and financial
computations hereunder or thereunder shall be computed, in accordance with GAAP.
1.16 "Governmental Authority" shall mean any domestic or foreign
national, state or local government, any political subdivision thereof, any
department, agency, authority or bureau of any of the foregoing, or any other
entity exercising executive, legislative, judicial, regulatory or administrative
functions of or pertaining to government.
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1.17 "Hazardous Materials" shall mean (a) petroleum and petroleum
products, byproducts or breakdown products, radioactive materials,
asbestos-containing materials, polychlorinated biphenyls and radon gas and (b)
any other chemicals, materials or substances designated, classified or regulated
as hazardous or toxic or as a pollutant or contaminant under any Environmental
Law.
1.18 "Indebtedness" of any Person shall mean and include the aggregate
amount of, without duplication (a) all obligations of such Person for borrowed
money, (b) all obligations of such Person evidenced by bonds, debentures, notes
or other similar instruments, (c) all obligations of such Person to pay the
deferred purchase price of property or services (other than accounts payable
incurred in the ordinary course of business determined in accordance with
generally accepted accounting principles), (d) all obligations under capital
leases of such Person, (e) all obligations or liabilities of others secured by a
lien on any asset of such Person, whether or not such obligation or liability is
assumed, (f) all guaranties of such Person of the obligations of another Person;
(g) all obligations created or arising under any conditional sale or other title
retention agreement with respect to property acquired by such Person (even if
the rights and remedies of the seller or purchaser under such agreement upon an
event of default are limited to repossession or sale of such property), (h) net
exposure under any interest rate swap, currency swap, forward, cap, floor or
other similar contract that is not entered into in connection with a bona fide
hedging operation that provides offsetting benefits to such Person, which
agreements shall be marked to market on a current basis, (i) all reimbursement
and other payment obligations, contingent or otherwise, in respect of letters of
credit.
1.19 "License Agreement" shall mean that certain agreement dated
December 28, 2000 between Tanabe Seiyaku Co., Ltd., a Japanese corporation
having its principal office at 2-10 Dosho-machi 3-chome, Chuo-ku, Osaka, Japan
and VIVUS, Inc., a corporation having its principal office at 1172 Castro
Street, Mountain View, CA 94040, USA, as the same may be amended from time to
time.
1.20 "Lien" shall mean, with respect to any asset, any mortgage, lien,
pledge, charge, security interest or encumbrance of any kind in respect of such
asset. For the purposes of this Agreement, Company shall be deemed to own
subject to a Lien any asset which it has acquired or holds subject to the
interest of a vendor or lessor under any conditional sale agreement, capital
lease or other title retention agreement relating to such asset.
1.21 "Maturity Date" shall, with respect to a given Note, mean the
fourth (4th) anniversary of the date on which the Advance with respect to such
Note was made.
1.22 "Nitrate Interaction Studies" shall mean clinical studies designed
to evaluate the hemo-dynamic response to nitrates in subjects receiving
Compound.
1.23 "Note" shall have the meaning given in Section 2.1.
1.24 "Obligations" means all loans, advances, debts, liabilities and
obligations, howsoever arising, owed by Company to Purchaser of every kind and
description (whether or not evidenced by any note or instrument and whether or
not for the payment of money), now existing or hereafter arising under or
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pursuant to the terms of the Notes and the other Transaction Documents,
including, all interest, fees, charges, expenses, attorneys' fees and costs and
accountants' fees and costs chargeable to and payable by Company hereunder and
thereunder, in each case, whether direct or indirect, absolute or contingent,
due or to become due, and whether or not arising after the commencement of a
proceeding under Title 11 of the United States Code (11 U.S.C. Section 101 et
seq.), as amended from time to time (including post-petition interest) and
whether or not allowed or allowable as a claim in any such proceeding.
1.25 "PBGC" shall mean the Pension Benefit Guaranty Corporation or any
entity succeeding to any or all of its functions under ERISA.
1.26 "Person" shall mean and include an individual, a partnership, a
corporation (including a business trust), a joint stock company, a limited
liability company, an unincorporated association, a joint venture or other
entity or a Governmental Authority.
1.27 "Phase II Clinical Studies" shall have the meaning given in the
License Agreement.
1.28 "Plan" shall mean any pension plan that is covered by Title IV of
ERISA and in respect of which Company or a Commonly Controlled Entity is an
"employer" as defined in Section 3(5) of ERISA.
1.29 "Prohibited Transaction" shall mean any transaction set forth in
Section 406 of ERISA or Section 4975 of the Code.
1.30 "Purchase Agreement" shall have the meaning set forth in the
opening paragraph of this document.
1.31 "Purchase Date" shall mean a date upon which an Advance is
consummated.
1.32 "Reportable Event" shall mean any of the events set forth in
Section 4043 of ERISA.
1.33 "Securities Act" shall mean the United States Securities Act of
1933 (or any successor statute), as amended from time to time.
1.34 "Security Agreement" shall have the meaning given in Section
2.8(a).
1.35 "Senior Debt" shall mean the principal of (and premium, if any)
and interest (including all interest accruing subsequent to the commencement of
any bankruptcy or similar proceeding, whether or not a claim for post-petition
interest is allowable as a claim in any such proceeding) on, and all fees and
other amounts payable in connection with, the following, whether absolute or
contingent, secured or unsecured, due or to become due, outstanding on the date
hereof or thereafter created, incurred or assumed: (a) all obligations of the
Company for money borrowed from a bank or other institutional lender, (b)
obligations incurred in connection with the acquisition of any businesses,
properties or assets, (c) obligations of the Company (i) as lessee under leases
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required to be capitalized on the balance sheet of the lessee under generally
accepted accounting principles and (ii) as lessee under other leases for
facilities, capital equipment or related assets, whether or not capitalized,
entered into or leased for financing purposes, and (d) renewals, extensions,
modifications, replacements, restatements and refundings of, or any indebtedness
or obligation issued in exchange for, any such indebtedness or obligation
described in clauses (a) through (c) of this paragraph; provided, however, that
Senior Debt shall not include any such indebtedness or obligation if the terms
of such indebtedness or obligation (or the terms of the instrument under which,
or pursuant to which it is issued) expressly provide that such indebtedness or
obligation is not superior in right of payment to the Notes
1.36 "Steering Committee" shall have the meaning given in the License
Agreement.
1.37 "Study" shall have the meaning given in Section 2.7.
1.38 "Subsidiary(-ries)" shall mean (a) any corporation(s) of which
more than 50% of the issued and outstanding equity securities having ordinary
voting power to elect a majority of the Board of Directors of such corporation
is at the time directly or indirectly owned or controlled by the Company, (b)
any partnership(s), joint venture(s), or other association(s) of which more than
50% of the equity interest having the power to vote, direct or control the
management of such partnership, joint venture or other association is at the
time directly or indirectly owned and controlled by the Company, (c) any other
entity(-ties) included in the financial statements of the Company on a
consolidated basis.
1.39 "Termination Date" shall mean the fourth anniversary of the date
of this Purchase Agreement.
1.40 "Trading Day" shall mean (i) if the Common Stock is quoted on the
Nasdaq National Market or any other system of automated dissemination of
quotations of securities prices, days on which trades may be effected through
such system, (ii) if the Common Stock is listed or admitted for trading on any
national or regional securities exchange, days on which such national or
regional securities exchange is open for business, or (iii) if the Common Stock
is not listed on a national or regional securities exchange or quoted on the
Nasdaq National Market or any other system of automated dissemination of
quotation of securities prices, days on which the Common Stock is traded regular
way in the over-the-counter market and for which a closing bid and a closing
asked price for the Common Stock are available.
1.41 "Transaction Documents" shall mean and include this Purchase
Agreement, the Security Agreement, the Notes and any other documents,
instruments and agreements delivered to Purchaser in connection with this
Purchase Agreement.
ARTICLE 2
ADVANCES
2.1 Terms of Advances. Subject to the terms and conditions of this
Purchase Agreement, Purchaser agrees to advance to Company from time to time and
until the Termination Date, such sums as Company may request (the "Advances")
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but which shall not exceed, in the aggregate principal amount at any one time
outstanding, the Facility Amount. The obligation of Company to repay the
Advances and to pay interest thereon at the rates specified herein shall be
evidenced by secured promissory notes in the form attached hereto as Exhibit A
(each a "Note" and collectively, the "Notes"). Advances shall be made in lawful
currency of the United States of America and shall be made in same day or
immediately available funds. Once repaid, Advances may not be reborrowed.
2.2 Mechanics of the Purchase and Sale of Notes. Notes shall be issued
by Company and purchased by Purchaser upon request by Company of an Advance
pursuant to a notice of borrowing in the form of Schedule I hereto (a "Notice of
Borrowing") and satisfaction of the conditions precedent set forth in Article 4.
Each Notice of Borrowing together with any documentation required by Section 4.6
shall be delivered not less than ten (10) Business Days prior to the Purchase
Date specified in the Notice of Borrowing in the manner specified in Section
7.1. Subject to Article 4, upon receipt of a Notice of Borrowing, Purchaser
shall purchase, and Company shall sell, on the specified Purchase Date a Note in
a principal amount equal to the Advance. There shall not occur in any one of
Company's fiscal quarters more than one Advance. Upon receipt of the purchase
price in immediately available funds from Purchaser, Company shall promptly
issue a Note in the amount of such purchase price to Purchaser dated the date of
receipt of such funds; provided, however, that Purchaser's rights under such
Note shall be deemed to exist from the date of receipt of the purchase price by
Company in immediately available funds whether or not such Note has physically
been issued.
2.3 Payment upon Maturity. If not paid earlier, the outstanding
principal balance of each Advance, together with all accrued but unpaid interest
thereon, shall be due and payable to the Purchaser on the Maturity Date with
respect to such Advance as defined in the applicable Note.
2.4 Interest Payments. Interest on the outstanding principal balance
under each Advance shall accrue at a rate per annum equal to two percent (2%)
and shall be paid on the fifteenth day of each December of each year while such
Advance is outstanding. All computations of such interest shall be based on a
year of 365 days and actual days elapsed for each day on which any principal
balance is outstanding under the terms of the applicable Note.
2.5 Other Payment Terms.
(a) PAYMENT IN CASH. Company shall make payments in whole or in
part due to Purchaser hereunder in lawful money of the United States and in same
day or immediately available funds unless Company elects to make payments
pursuant to Section 2.5(b).
(b) PAYMENTS IN COMMON STOCK. At Company's option, Company may make
payments in whole or in part due to Purchaser hereunder in Common Stock provided
the following conditions are met: (i) the fair market value of shares of Common
Stock shall be determined by the Company and shall be equal to the average of
the Closing Prices Per Share of the Common Stock for the five consecutive
Trading Days immediately preceding and including the third Trading Day prior to
the date of payment and the fair market value of a share of Common Stock
determined in accordance herewith shall not equal less than Five Dollars ($5);
(ii) the shares of Common Stock to be issued and/or delivered to Purchaser as
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payment hereunder shall, immediately after delivery to Purchaser, be freely
transferable to any third parties by Purchaser without being subject to any
transfer restrictions under the Securities Act and any other federal and state
securities laws; (iii) such Common Stock is, or shall have been, approved for
quotation on the Nasdaq National Market or listed on a national securities
exchange, in either case, prior to the date of issuance of Common Stock as
payment hereunder; (iv) all shares of Common Stock which may be issued as
payment hereunder will be issued out of the Company's authorized but unissued
Common Stock and, will upon issue, be duly and validly issued and fully paid and
non-assessable and free of any preemptive or similar rights; and (v) the fair
market value of one share of stock determined in accordance with clause (i) of
this paragraph multiplied by the number of oustanding fully-diluted shares of
the Company shall not total less than Thirty Million Dollars ($30,000,000).
(c) DATE. Whenever any payment due hereunder shall fall due on a
day other than a Business Day, such payment shall be made on the next succeeding
Business Day, and such extension of time shall be included in the computation of
interest or fees, as the case may be.
(d) DEFAULT RATE. From and after the occurrence of an Event of
Default and during the continuance thereof, Company shall pay interest on all
Obligations not paid when due, from the date due thereof until such amounts are
paid in full at a per annum rate equal to the lower of three (3) percentage
points in excess of the rate otherwise applicable to Advances or the highest
lawful rate of interest under applicable law. All computations of such interest
shall be based on a year of 365 days and actual days elapsed.
2.6 Prepayments.
(a) TERMS OF ALL PREPAYMENTS. Upon the prepayment of any Note
(whether such prepayment is a mandatory prepayment or an optional prepayment),
Company shall pay to Purchaser all accrued interest to the date of such
prepayment on the amount prepaid.
(b) MANDATORY PREPAYPAYMENT. Company shall prepay in accordance
with Section 2.5 all Obligations within ten (10) Business Days of the receipt by
Company of a lump-sum payment in immediately available funds equal to or greater
than (**)Dollars ($**) from any third-party sublicensor in connection with the
execution of a third-party sublicense agreement contemplated by Section 2.3 of
the License Agreement.
(c) OPTIONAL PREPAYMENTS. At its option, Company may, upon three
(3) Business Days' notice to Purchaser, prepay the Advances in whole, or in part
in an amount of at least One Hundred Thousand Dollars, $100,000, or any lesser
amount equal to the entire remaining outstanding principal balance.
(d) REGULATORY CHANGE. If, after the date hereof, the introduction
and effectiveness of any applicable law, rule or regulation, or any change in
any applicable law, rule or regulation, or in the interpretation or
administration thereof by any governmental authority charged with the
interpretation or administration thereof, shall make it unlawful for Purchaser
to maintain the Advance, Purchaser shall forthwith give notice thereof to
Company, whereupon Company shall promptly prepay such Advance.
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(e) APPLICATION OF PREPAYMENTS. All prepayments hereunder shall be
applied first to unpaid fees, costs and expenses then due and payable under this
Purchase Agreement or the other Transaction Documents, second to accrued
interest then due and payable under the applicable Notes and finally to reduce
the outstanding principal amount of the applicable Notes.
2.7 Proceeds of the Advances. Company shall use the proceeds of the
Advances solely for the conduct of (i) Phase II Clinical Studies, (ii)
Carcinogenicity Studies, (iii) Nitrate Interaction Studies, and (iv) other
studies relating to the development of the Compound, (each of (i) through (iv),
a "Study"), such Studies to be performed in each case in accordance with the
License Agreement.
2.8 Security; Further Assurances; Designation of Tanabe Study.
(a) SECURITY. The Obligations shall be secured by a Security
Agreement in the form attached hereto as Exhibit B (the "Security Agreement").
(b) FURTHER ASSURANCES. Company shall deliver to Purchaser the
Security Agreement and such other instruments, agreements, certificates, and
documents as Purchaser may reasonably request to create, perfect, evidence and
maintain (i) a security interest of Purchaser in certain assets of Company as
further set forth in the Security Agreement and (ii) the rights of Purchaser
under this Purchase Agreement and the other Transaction Documents. Company shall
fully cooperate with Purchaser and perform all additional acts reasonably
requested by Purchaser to effect the purposes of the foregoing and the rights
granted to Purchaser hereunder, including providing Purchaser with updates on
Company's sublicensing activities under the License Agreement.
(c) DESIGNATION OF TANABE STUDY. Company shall designate at least
one Study to be conducted by an affiliate of Purchaser to be established for
such purposes, the nature of such Study to be determined by Company in its sole
discretion.
2.9 Term. This Agreement and all of the parties' rights and obligations
hereunder shall terminate upon payment in full of all outstanding Obligations.
ARTICLE 3
REPRESENTATIONS AND WARRANTIES OF COMPANY
To induce Purchaser to enter into this Purchase Agreement and to make
Advances hereunder, Company represents and warrants to Purchaser as follows:
3.1 Due Incorporation, Qualification, etc. Company is a corporation
duly organized, validly existing and in good standing under the laws of its
state of incorporation.
3.2 Authority. The execution, delivery and performance by Company of
each Transaction Document to be executed by Company and the consummation of the
transactions contemplated thereby (i) are within the power of Company and (ii)
have been duly authorized by all necessary actions on the part of Company.
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3.3 Enforceability. Each Transaction Document executed, or to be
executed, by Company has been, or will be, duly executed and delivered by
Company and constitutes, or will constitute, a legal, valid and binding
obligation of Company, enforceable against Company in accordance with its terms,
except as limited by bankruptcy, insolvency or other laws of general application
relating to or affecting the enforcement of creditors' rights generally and
general principles of equity.
3.4 Financial Statements. The financial statement of the Company dated
as of September 30, 2003, a copy of which has been submitted to the Purchaser,
fairly represents the financial position of the Company as of said date, and
since the date of the most recent public filing of the financial statements of
the Company there has been no development or event which has had a material
adverse effect on the business, operations, property, condition or prospects of
Company.
3.5 No Proceedings. There is no action, suit, proceeding or
investigation at law or in equity by or before any court, governmental body or
other agency now pending or, to the knowledge of the Company, threatened against
or affecting the Company or any property or rights of the Company which would
likely result in a material adverse effect on the business, operations,
property, condition or prospects of Company. The Company is not in default under
or in violation of any applicable writ, order, injunction or decree of any
court, governmental department, board, agency or instrumentality which by itself
or aggregated with any other such default or violation would result in a
material adverse effect on the business, operations, property, condition or
prospects of Company.
3.6 Tax Returns. The Company has filed all material tax returns
required to be filed by it and has paid all material taxes and other
governmental charges due pursuant to such returns or pursuant to any assessment
received by the Company except where the Company may be contesting in good faith
such taxes or governmental charges. The charges, accruals and reserves on the
books of the Company in respect to any taxes or other governmental charges are
adequate in the aggregate to provide for the liabilities in respect thereof.
3.7 Compliance with Laws. It has complied in all material respects with
all applicable laws, statutes, regulations and orders of, and all applicable
restrictions imposed by, all governmental bodies, domestic or foreign, in
respect of the conduct of its businesses and the ownership of its properties.
3.8 Environmental Matters. Except to the extent not reasonably expected
to result in a Material Adverse Effect or a Default or an Event of Default, (i)
none of the operations of the Company or any of its Subsidiary(-ries) violates,
in any material respect, any Environmental Law, (ii) no Environmental Action has
been asserted against the Company or any of its Subsidiary(-ries) in writing nor
does the Company have any knowledge of any threatened or pending Environmental
Action against the Company, any of its Subsidiary(-ries) or any predecessor in
interest, (iii) neither the Company nor any of its Subsidiary(-ries) has
incurred any Environmental Liabilities and (iv) to the Company's knowledge,
neither the Company nor any of its Subsidiary(-ries)s has any material
contingent liability in connection with any release of any Hazardous Material
into the environment.
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3.9 ERISA. The Company and each of its Subsidiary(-ries) are in
compliance in all material respects with all applicable provisions of ERISA.
Neither a Reportable Event nor a Prohibited Transaction has occurred and is
continuing with respect to any Plan; no notice of intent to terminate a Plan has
been filed, nor has any Plan been terminated; no circumstances exist which
constitute grounds entitling the PBGC to institute proceedings to terminate, or
appoint a trustee to administer, a Plan, nor has the PBGC instituted any such
proceedings; neither the Company nor any Commonly Controlled Entity has
completely or partially withdrawn from a Multiemployer Plan; the Company and
each Commonly Controlled Entity have met their minimum funding requirements
under ERISA with respect to all of their Plans, and the present value of all
vested benefits, under each Plan does not exceed the fair market value of all
Plan assets allocable to such benefits, as determined on the most recent
valuation date of the Plan and in accordance with the provisions of ERISA; and
neither the Company nor any Commonly Controlled Entity has incurred any
liability to the PBGC under ERISA.
ARTICLE 4
CONDITIONS TO MAKING ADVANCES
Purchaser's obligation to make the initial Advance and each subsequent
Advance is subject to the prior satisfaction or waiver of all the conditions set
forth in this Article 4.
4.1 Principal Transaction Documents. Company shall have duly executed
and delivered to Purchaser: (a) the Purchase Agreement, (b) the Security
Agreement and (c) such other documents, instruments and agreements as Purchaser
may reasonably request.
4.2 Representations and Warranties Correct. The representations and
warranties made by Company in Article 3 hereof shall be true and correct as of
the date on which each Advance is made and after giving effect to the making of
the Advance. The submission by Company to Purchaser of a request for an Advance
shall be deemed to be a certification by the Company that as of the date of
borrowing, the representations and warranties made by Company in Article 3
hereof are true and correct.
4.3 No Event of Default or Default. No Event of Default or Default has
occurred or is continuing.
4.4 Total Outstanding Advances. The total aggregate principal amount of
outstanding Advances does not exceed the Facility Amount.
4.5 Pre-Clinical and Clinical Studies. Company shall have commenced at
least one Phase II Clinical Study and two Carcinogenicity Studies by March 31,
2004. There shall not have occurred any material delay in the conduct of the
Phase II Clinical Studies, the Carcinogenicity Studies and the Nitrate
Interaction Studies that is inconsistent with any schedules approved by the
Steering Committee pertaining to such studies.
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4.6 Use of Proceeds: Evidence of Reimbursement. Purchaser shall have
received from Company evidence (including invoices, copies of checks, other
appropriate evidence of payments or other documentation) that, with respect to
each Advance, the Company is in compliance with Section 2.7 hereof; provided,
however, that Purchaser acknowledges and agrees that the sole purpose of this
Section 4.6 is to permit Purchaser to ascertain that the Advances are used to
reimburse Company for expenditures identified in Section 2.7 and not to limit or
restrict reimbursement for any such expenditures identified in Section 2.7.
ARTICLE 5
EVENTS OF DEFAULT
5.1 Events of Default. The occurrence of any of the following shall
constitute an "Event of Default" under the Transaction Documents and each Note:
(a) FAILURE TO PAY. Company shall fail to pay to Purchaser within
30 days when due and payable the outstanding principal amount or any accrued but
unpaid interest on any Note.
(b) BREACHES OF COVENANTS. Company shall fail to observe or perform
any other covenant, obligation, condition or agreement contained in this
Purchase Agreement or any other Transaction Document and (i) such failure shall
continue for ten (10) Business Days, or (ii) if such failure is not curable
within such ten (10) Business Day period, but is reasonably capable of cure
within twenty (20) Business Days, either (A) such failure shall continue for
twenty (20) Business Days or (B) Company shall not have commenced a cure in a
manner reasonably satisfactory to Purchaser within the initial ten (10) Business
Day period; or
(c) REPRESENTATIONS AND WARRANTIES. Any representation, warranty,
certificate, or other statement (financial or otherwise) made or furnished by or
on behalf of Company to Purchaser in writing in connection with any of the
Transaction Documents, or as an inducement to Purchaser to enter into this
Purchase Agreement, shall be false, incorrect, incomplete or misleading in any
material respect when made or furnished; or
(d) VOLUNTARY BANKRUPTCY OR INSOLVENCY PROCEEDINGS. Company shall
(i) apply for or consent to the appointment of a receiver, trustee, liquidation
or custodian of itself or of all or a substantial part of its property, (ii) be
unable, or admit in writing its inability, to pay its debts generally as they
mature, (iii) make a general assignment for the benefit of its or any of its
creditors, (iv) be dissolved or liquidated in full or in part, (v) become
insolvent (as such term is defined in 11 U.S.C. ss.101 (32), as amended from
time to time), (vi) commence a voluntary case or other proceeding seeking
liquidation, reorganization or other relief with respect to itself or its debts
under any bankruptcy, insolvency or other similar law now or hereafter in effect
or consent to any such relief or to the appointment of or taking possession of
its property by any official in an involuntary case or other proceeding
commenced against it, or (vii) take any action for the purpose of effecting any
of the foregoing; or
(e) INVOLUNTARY BANKRUPTCY OR INSOLVENCY PROCEEDINGS. Proceedings
for the appointment of a receiver, trustee, liquidator or custodian of Company
or of all or a substantial part of the property thereof, or an involuntary case
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or other proceedings seeking liquidation, reorganization or other relief with
respect to Company or the debts thereof under any bankruptcy, insolvency or
other similar law now or hereafter in effect shall be commenced and an order for
relief entered or such proceeding shall not be dismissed or discharged within
sixty (60) calendar days of commencement; or
(f) OTHER DEFAULTS. Company shall fail to make any payment in
respect of any Indebtedness in an amount of $(**) or more when due or within any
applicable grace period therefor, or any event or condition shall occur which
results in the acceleration of the maturity of any such Indebtedness; or
(g) JUDGMENTS. A final judgment or order for the payment of money
in excess of $(**) shall be rendered against Company and such judgment or order
shall continue unsatisfied or unbonded and in effect for a period of thirty (30)
days.
5.2 Rights of Purchaser upon Default.
(a) ACCELERATION. Upon the occurrence or existence of any Event of
Default described in Sections 5.1(d) and 5.1(e), automatically and without
notice or, at the option of Purchaser, upon the occurrence of any other Event of
Default, all outstanding Obligations payable by Company hereunder shall become
immediately due and payable, without presentment, demand, protest or any other
notice of any kind, all of which are hereby expressly waived, anything contained
herein or in the other Transaction Documents to the contrary notwithstanding.
(b) CUMULATIVE RIGHTS, ETC. The rights, powers and remedies of
Purchaser under this Purchase Agreement shall be in addition to all rights,
powers and remedies given to Purchaser by virtue of any applicable law, rule or
regulation of any Governmental Authority, any transaction contemplated thereby
or any other agreement, all of which rights, powers, and remedies shall be
cumulative and may be exercised successively or concurrently without impairing
Purchaser's rights hereunder.
ARTICLE 6
SUBORDINATION
6.1 Agreement to Subordinate. Purchaser agrees to enter into any
intercreditor or subordination agreements in connection with the issuance by
Company of Senior Debt providing (i) that Purchaser's right to receive payment
of the Obligations is and shall be subordinated to the prior payment in full of
any such Senior Debt, and (ii) any liens granted by Company to Purchaser on
assets of Company other than Compound-Related Intellectual Property are and
shall be subordinated to any liens granted by Company securing any such Senior
Debt (provided that Purchaser's security interest on Compound-Related
Intellectual Property shall remain a first priority security interest), in each
case on reasonable terms and conditions requested by a provider to Company of
such Senior Debt.
12
ARTICLE 7
MISCELLANEOUS
7.1 Notices. Except as otherwise provided herein, all notices,
requests, demands, consents, instructions or other communications to or upon
Purchaser or Company under this Purchase Agreement or the other Transaction
Documents shall be in writing and faxed, mailed, sent by electronic mail or
delivered, and (i) if to Company, at its fax number, electronic mail address or
address set forth below, or (ii) if to Purchaser, at its fax number, electronic
mail address or address set forth below (or to such other fax number, electronic
mail address or address for any party as indicated in any notice given by that
party to the other party). All such notices and communications shall be
effective (a) when sent by Federal Express or other overnight service of
recognized standing, on the Business Day following the deposit with such
service; (b) when mailed by registered or certified mail, first class postage
prepaid and addressed as aforesaid through the United States Postal Service,
upon receipt; (c) when delivered by hand, upon delivery; and (d) when faxed or
sent by electronic mail, upon confirmation of receipt; provided, however, that
any notice delivered to Purchaser under Article 2 shall not be effective until
received by Purchaser.
PURCHASER: TANABE HOLDING AMERICA, INC.
401 Hackensack Avenue, 10th Floor
Hackensack, NJ 07601
Attention:
COMPANY: VIVUS, INC.
1172 Castro Street
Mountain View, CA 94040
Attention:
7.2 Waivers; Amendments. Any term, covenant, agreement or condition of
this Purchase Agreement or any other Transaction Document may be amended or
waived if such amendment or waiver is in writing and is signed by Company and
Purchaser. No failure or delay by Purchaser in exercising any right hereunder
shall operate as a waiver thereof or of any other right nor shall any single or
partial exercise of any such right preclude any other further exercise thereof
or of any other right. A waiver or consent given hereunder shall be effective
only if in writing and in the specific instance and for the specific purpose for
which given.
7.3 Successors and Assigns. This Purchase Agreement and the other
Transaction Documents shall be binding upon and inure to the benefit of Company,
Purchaser and their respective successors and permitted assigns, except that
each of Company and Purchaser may not assign or transfer (and any such attempted
13
assignment or transfer shall be void) any of its rights or obligations under any
Transaction Document without the prior written consent of the other respective
party.
7.4 Set-off. In addition to any rights and remedies of Purchaser
provided by law, Purchaser shall have the right, without prior notice to
Company, any such notice being expressly waived by Company to the extent
permitted by applicable law, upon the occurrence and during the continuance of
an Event of Default, to set-off and apply against any Indebtedness, whether
matured or unmatured, of Company to Purchaser (including, without limitation,
the Obligations), any amount owing from Purchaser to Company. The aforesaid
right of set-off may be exercised by Purchaser against Company or against any
trustee in bankruptcy, debtor-in-possession, assignee for the benefit of
creditors, receiver or execution, judgment or attachment creditor of Company or
against anyone else claiming through or against Company or such trustee in
bankruptcy, debtor-in-possession, assignee for the benefit of creditors,
receiver, or execution, judgment or attachment creditor, notwithstanding the
fact that such right of set-off shall not have been exercised by Purchaser prior
to the occurrence of an Event of Default. Purchaser agrees promptly to notify
Company after any such set-off and application made by Purchaser, provided that
the failure to give such notice shall not affect the validity of such set-off
and application.
7.5 No Third Party Rights. Except with respect to Article 6 of this
Purchase Agreement, nothing expressed in or to be implied from this Agreement or
any other Transaction Document is intended to give, or shall be construed to
give, any Person, other than the parties hereto and thereto and their permitted
successors and assigns, any benefit or legal or equitable right, remedy or claim
under or by virtue of this Agreement or any other Transaction Document.
7.6 Partial Invalidity. If at any time any provision of this Purchase
Agreement or any of the Transaction Documents is or becomes illegal, invalid or
unenforceable in any respect under the law of any jurisdiction, neither the
legality, validity or enforceability of the remaining provisions of the Purchase
Agreement or such other Transaction Documents, nor the legality, validity or
enforceability of such provision under the law of any other jurisdiction, shall
in any way be affected or impaired thereby.
7.7 Governing Law. This Purchase Agreement and each of the other
Transaction Documents shall be governed by and construed in accordance with the
laws of the State of California without reference to conflicts of law rules.
7.8 Construction. Each of this Purchase Agreement and the other
Transaction Documents is the result of negotiations among, and has been reviewed
by, Company, Purchaser and their respective counsel. Accordingly, this Purchase
Agreement and the other Transaction Documents shall be deemed to be the product
of all parties hereto, and no ambiguity shall be construed in favor of or
against Company or Purchaser.
7.9 Entire Agreement. This Purchase Agreement and the other Transaction
Documents, taken together, constitute and contain the entire agreement of
Company and Purchaser with respect to the subject matter hereby and supersede
14
any and all prior agreements, negotiations, correspondence, understandings and
communications among the parties, whether written or oral, respecting the
subject matter hereof.
[THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK]
15
IN WITNESS WHEREOF, the parties have executed this Purchase Agreement
as of the date first set forth above.
COMPANY:
VIVUS, INC.
By: /s/ Leland Wilson
----------------------------
Name: Leland Wilson
Title: President & C.E.O.
PURCHASER:
TANABE HOLDING AMERICA, INC.
By: /s/ Norihito Ujino
----------------------------
Name: Norihito Ujino
Title: President & CEO
16
SCHEDULE I
NOTICE OF BORROWING
_____________________, 200_
TANABE HOLDING AMERICA, INC.
___________________________
___________________________
___________________________
Attn: _____________________
1. Reference is made to that certain Note Purchase Agreement, dated as
of December __, 2003 (the "Purchase Agreement"), between VIVUS, INC. ("Company")
and TANABE HOLDING AMERICA, INC. ("Purchaser"). Unless otherwise indicated, all
terms defined in the Purchase Agreement have the same respective meanings when
used herein.
2. Pursuant to Section 2.1 of the Purchase Agreement, Company hereby
requests an Advance from Purchaser upon the following terms:
The principal amount of the requested Advance is $_______________;
The Purchase Date of the requested Advance is _____________, 200_.
3. Company hereby certifies that, on the date of such Advance and
after giving effect to the requested Advance:
The representations and warranties set forth in Article 3 of the
Purchase Agreement will be true and correct as if made on such date, except for
those representations and warranties which address matters only as of a
particular date (which representations and warranties shall remain true and
correct as of such date);
No Event of Default or Default has occurred and is continuing; and
The total aggregate principal amount of outstanding Advances does
not exceed the Commitment.
4. Please disburse the purchase price of the Note according to the
following wire instructions:
Bank:
Address:
ABA No.
Acct. No.
Acct. Name: VIVUS, Inc.
Reference: Tanabe Loan
17
IN WITNESS WHEREOF, Company has executed this Notice of Borrowing on
the date set forth above.
VIVUS, INC.
By:
-------------------------------
Name:
------------------------------
Title:
-----------------------------
18
EXHIBIT A
VIVUS, INC.
SECURED PROMISSORY NOTE
$[_______________] [____________], 200_
Mountain View, California
FOR VALUE RECEIVED, VIVUS, Inc., a Delaware corporation (the "COMPANY")
promises to pay to Tanabe Holding America, Inc. ("PURCHASER"), or its registered
assigns, in lawful money of the United States of America the principal sum of
[__________] Dollars ($[_________]), or such lesser amount as shall equal the
outstanding principal amount hereof, together with interest from the date of
this Note on the unpaid principal balance at a rate equal to 2.00% per annum,
computed on the basis of the actual number of days elapsed and a year of 365
days. All unpaid principal, together with any then unpaid and accrued interest
and other amounts payable hereunder, shall be due and payable on demand on the
earlier of (i) four years from the date of this Note (the "MATURITY DATE"), or
(ii) when, upon or after the occurrence of an Event of Default (as defined
below), such amounts are declared due and payable by Purchaser or made
automatically due and payable in accordance with the terms hereof. This Note is
one of the "Notes" issued pursuant to the Note Purchase Agreement (as amended,
modified or supplemented, the "PURCHASE AGREEMENT") between Company and
Purchaser.
THE OBLIGATIONS DUE UNDER THIS NOTE ARE SECURED BY A SECURITY AGREEMENT
DATED AS OF JANUARY 8, 2004 AND EXECUTED BY COMPANY FOR THE BENEFIT OF
PURCHASER. ADDITIONAL RIGHTS OF PURCHASER ARE SET FORTH IN THE SECURITY
AGREEMENT AND PURCHASE AGREEMENT.
The following is a statement of the rights of Purchaser and the
conditions to which this Note is subject, and to which Purchaser, by the
acceptance of this Note, agrees:
1. DEFINITIONS. Capitalized terms used but not
otherwise defined herein shall have the meanings assigned to such terms in the
Purchase Agreement.
2. INTEREST. Accrued interest on this Note shall be payable on an
annual basis on the fifteenth day of December of each year while this Note is
outstanding.
3. PREPAYMENT. The prepayment of this Note is governed by Section 2.6
of the Purchase Agreement.
4. RIGHTS OF PURCHASER UPON DEFAULT. The rights of the Purchaser upon
an Event of Default are as set forth in Section 5.2 of the Purchase Agreement
and Section 6 of the Security Agreement.
5. SUCCESSORS AND ASSIGNS. Subject to the restrictions on transfer
described in Section 7 below, the rights and obligations of the Company and
Purchaser shall be binding upon and benefit the successors, assigns, heirs,
administrators and transferees of the parties.
6. WAIVER AND AMENDMENT. Any provision of this Note may be amended,
waived or modified upon the written consent of the Company and Purchaser.
7. TRANSFER OF THIS NOTE. Neither this Note nor any of the rights,
interests or obligations hereunder may be assigned, by operation of law or
otherwise, in whole or in part, by the Company or the Purchaser without the
prior written consent of the other respective party.
8. NOTICES. Except as otherwise provided herein, all notices, requests,
demands, consents, instructions or other communications required or permitted
hereunder shall be in writing and faxed, mailed or delivered to each party at
the respective addresses of the parties as set forth and in the manner set forth
in the Purchase Agreement.
9. PAYMENT. Payment shall be made in accordance with Section 2 of the
Purchase Agreement, including but not limited to Section 2.5 of the Purchase
Agreement.
10. WAIVERS. The Company hereby waives notice of default, presentment
or demand for payment, protest or notice of nonpayment or dishonor and all other
notices or demands relative to this instrument.
11. GOVERNING LAW. This Note and all actions arising out of or in
connection with this Note shall be governed by and construed in accordance with
the laws of the State of California, without regard to the conflicts of law
provisions of the State of California, or of any other state.
[SIGNATURE PAGE FOLLOWS]
2
The Company has caused this Note to be issued as of the date first
written above.
VIVUS, INC.
a Delaware corporation
By:
----------------------------------
Name:
--------------------------------
Title:
-------------------------------
EXHIBIT B
SECURITY AGREEMENT
This Security Agreement (as amended, modified or otherwise supplemented
from time to time, this "SECURITY AGREEMENT"), dated as of January 8, 2004, is
executed by VIVUS, Inc., a Delaware corporation ("Company"), in favor of Tanabe
Holding America, Inc. ("SECURED PARTY").
RECITALS
A. Company and Secured Party have entered into a Note Purchase
Agreement, dated as of the date hereof (the "PURCHASE AGREEMENT"), pursuant to
which the Company has issued or will issue promissory notes (as amended,
modified or otherwise supplemented from time to time, (each a "NOTE" and
collectively, the "NOTES").
B. In order to induce Secured Party to extend the credit evidenced by
the Notes, Company has agreed to enter into this Security Agreement and to grant
to Secured Party, the security interest in the Collateral described below.
AGREEMENT
NOW, THEREFORE, in consideration of the above recitals and for other
good and valuable consideration, the receipt and adequacy of which are hereby
acknowledged, Company hereby agrees with Secured Party as follows:
1. Definitions and Interpretation. When used in this Security
Agreement, the following terms have the following respective meanings:
"COLLATERAL" has the meaning given to that term in Section 2
hereof.
"LIEN" shall mean, with respect to any property, any security
interest, mortgage, pledge, lien, claim, charge or other encumbrance in, of, or
on such property or the income therefrom, including, without limitation, the
interest of a vendor or lessor under a conditional sale agreement, capital lease
or other title retention agreement, or any agreement to provide any of the
foregoing, and the filing of any financing statement or similar instrument under
the UCC or comparable law of any jurisdiction.
"PERMITTED LIENS" means (a) Liens for taxes not yet delinquent
or Liens for taxes being contested in good faith and by appropriate proceedings
for which adequate reserves have been established; (b) Liens in respect of
property or assets imposed by law which were incurred in the ordinary course of
business, such as carriers', warehousemen's, materialmen's and mechanics' Liens
and other similar Liens arising in the ordinary course of business which are not
delinquent or remain payable without penalty or which are being contested in
good faith and by appropriate proceedings; (c) Liens incurred or deposits made
in the ordinary course of business in connection with workers'
compensation, unemployment insurance and other types of social security, and
mechanic's Liens, carrier's Liens and other Liens to secure the performance of
tenders, statutory obligations, contract bids, government contracts, letters of
credit, performance and return of money bonds and other similar obligations,
incurred in the ordinary course of business, whether pursuant to statutory
requirements, common law or consensual arrangements; (d) Liens in favor of the
Secured Party; (e) Liens upon any equipment acquired or held by Company or any
of its Subsidiaries to secure the purchase price of such equipment or
indebtedness incurred solely for the purpose of financing the acquisition of
such equipment, so long as such Lien extends only to the equipment financed, and
any accessions, replacements, substitutions and proceeds (including insurance
proceeds) thereof or thereto; (f) Liens in favor of customs and revenue
authorities arising as a matter of law to secure payments of customs duties in
connection with the importation of goods, (g) Liens which constitute rights of
setoff of a customary nature or banker's liens, whether arising by law or by
contract; (h) Liens on insurance proceeds in favor of insurance companies
granted solely as security for financed premiums; (i) leases or subleases and
licenses or sublicenses granted in the ordinary course of Company's business;
(j) Liens securing Senior Debt; (k) Liens on properties in respect of judgments
or awards not constituting an Event of Default under the Purchase Agreement; (l)
Liens incurred in connection with the securing of interest payments on an
issuance of debt securities and customary Liens granted in favor of a trustee to
secure fees and other amounts owing to such trustee under an indenture or other
agreement; and (m) Liens to secure the performance of hedging, swap or similar
transactions.
"UCC" means the Uniform Commercial Code as in effect in the
State of California from time to time.
All capitalized terms not otherwise defined herein shall have the
respective meanings given in the Purchase Agreement. Unless otherwise defined
herein, all terms defined in the UCC have the respective meanings given to those
terms in the UCC.
2. GRANT OF SECURITY INTEREST. As security for the Obligations, Company
hereby pledges to Secured Party and grants to Secured Party a security interest
in all right, title and interests of Company in and to the property described in
Attachment 1 hereto, whether now existing or hereafter from time to time
acquired, including, without limitation, the Compound-Related Intellectual
Property (collectively, the "COLLATERAL"). Subject to Permitted Liens, the
security interest granted hereunder on the Compound-Related Intellectual
Property shall constitute a first priority security interest. Notwithstanding
the foregoing, the security interest granted herein shall not extend to and the
term "Collateral" shall not include (a) any equipment or other property financed
by a third party, provided that such third party's Liens are Liens of the type
described in subsection (e) of the definition of Permitted Liens, and (b)
account number located at San Francisco, California, USA, and
the contents therein relating to the Company's facility under lease in Lakewood,
New Jersey.
3. GENERAL REPRESENTATIONS AND WARRANTIES. Company represents and
warrants to Secured Party that (a) Company is the owner of the Collateral (or,
in the case of after-acquired Collateral, at the time Company acquires rights in
the Collateral, will be the owner thereof) and that no other Person has (or, in
the case of after-acquired Collateral, at the time Company acquires rights
therein,
2
will have) any right, title, claim or interest (by way of Lien or otherwise) in,
against or to the Collateral, other than Permitted Liens; (b) upon the filing of
UCC-1 financing statements in the appropriate filing offices, Secured Party has
(or in the case of after-acquired Collateral, at the time Company acquires
rights therein, will have) a perfected security interest in the Collateral to
the extent that a security interest in the Collateral can be perfected by such
filing, except for Permitted Liens; (c) all Inventory has been (or, in the case
of hereafter produced Inventory, will be) produced in compliance with applicable
laws, including the Fair Labor Standards Act; (d) all accounts receivable and
payment intangibles are genuine and enforceable against the party obligated to
pay the same; (e) the originals of all documents evidencing all accounts
receivable and payment intangibles of Company and the only original books of
account and records of Company relating thereto are, and will continue to be,
kept at address of the Company set forth in Section 7 of this Security
Agreement.
4. COVENANTS RELATING TO COLLATERAL. Company hereby agrees (a) to
perform all acts that may be necessary to maintain, preserve, protect and
perfect the Collateral, the Lien granted to Secured Party therein and the
perfection of such Lien, except for Permitted Liens; (b) not to use or permit
any Collateral to be used (i) in violation in any material respect of any
applicable law, rule or regulation, or (ii) in violation of any policy of
insurance covering the Collateral; (c) to pay promptly when due all taxes and
other governmental charges, all Liens and all other charges now or hereafter
imposed upon or affecting any Collateral; (d) without 30 days' written notice to
Secured Party, (i) not to change Company's name or place of business (or, if
Company has more than one place of business, its chief executive office), or the
office in which Company's records relating to accounts receivable and payment
intangibles are kept, and (ii) not to change Company's state of incorporation;
(e) to procure, execute and deliver from time to time any endorsements,
assignments, financing statements and other writings reasonably deemed necessary
or appropriate by Secured Party to perfect, maintain and protect its Lien
hereunder and the priority thereof and to deliver promptly upon the request of
Secured Party all originals of Collateral consisting of instruments, and (f) the
security interest granted hereunder on the Compound-Related Intellectual
Property shall constitute a first priority security interest, subject to
Permitted Liens.
5. AUTHORIZED ACTION BY SECURED PARTY. Company hereby irrevocably
appoints Secured Party as its attorney-in-fact (which appointment is coupled
with an interest) and agrees that Secured Party may perform (but Secured Party
shall not be obligated to and shall incur no liability to Company or any third
party for failure so to do) any act which Company is obligated by this Security
Agreement to perform, and to exercise such rights and powers as Company might
exercise with respect to the Collateral, including the right to (a) collect by
legal proceedings or otherwise and endorse, receive and receipt for all
dividends, interest, payments, proceeds and other sums and property now or
hereafter payable on or on account of the Collateral; (b) enter into any
extension, reorganization, deposit, merger, consolidation or other agreement
pertaining to, or deposit, surrender, accept, hold or apply other property in
exchange for the Collateral; (c) make any compromise or settlement, and take any
action it deems advisable, with respect to the Collateral; (d) insure, process
and preserve the Collateral; (e) pay any indebtedness of Company relating to the
Collateral; and (f) file UCC financing statements and execute other documents,
instruments and agreements required hereunder; provided, however, that Secured
Party shall not exercise any such powers granted pursuant to subsections (a)
through (e) prior to the occurrence of an Event of Default and shall only
exercise such
3
powers during the continuance of an Event of Default. Company agrees to
reimburse Secured Party upon demand for any reasonable costs and expenses,
including attorneys' fees, Secured Party may incur while acting as Company's
attorney-in-fact hereunder, all of which costs and expenses are included in the
Obligations. It is further agreed and understood between the parties hereto that
such care as Secured Party gives to the safekeeping of its own property of like
kind shall constitute reasonable care of the Collateral when in Secured Party 's
possession; provided, however, that Secured Party shall not be required to make
any presentment, demand or protest, or give any notice and need not take any
action to preserve any rights against any prior party or any other person in
connection with the Obligations or with respect to the Collateral.
6. DEFAULT AND REMEDIES.
(a) Default. Company shall be deemed in default under this
Security Agreement upon the occurrence and during the continuance of an Event of
Default (as defined in the Purchase Agreement).
(b) Remedies. Upon the occurrence and during the continuance of
any such Event of Default, Secured Party shall have the rights of a secured
creditor under the UCC, all rights granted by this Security Agreement and by
law, including the right to: (a) require Company to assemble the Collateral and
make it available to Secured Party at a place to be designated by Secured Party;
and (b) prior to the disposition of the Collateral, store, process, repair or
recondition it or otherwise prepare it for disposition in any manner and to the
extent Secured Party deems appropriate. Company hereby agrees that ten (10)
days' notice of any intended sale or disposition of any Collateral is
reasonable. In furtherance of Secured Party 's rights hereunder, Company hereby
grants to Secured Party an irrevocable, non-exclusive license, exercisable
without royalty or other payment by Secured Party, and only in connection with
the exercise of remedies hereunder, to use, license or sublicense any patent,
trademark, trade name, copyright or other intellectual property in which Company
now or hereafter has any right, title or interest together with the right of
access to all media in which any of the foregoing may be recorded or stored.
(c) Application of Collateral Proceeds. The proceeds and/or avails
of the Collateral, or any part thereof, and the proceeds and the avails of any
remedy hereunder (as well as any other amounts of any kind held by Secured Party
at the time of, or received by Secured Party after, the occurrence of an Event
of Default) shall be paid to and applied as follows:
(i) First, to the payment of reasonable costs and expenses,
including all amounts expended to preserve the value of the Collateral, of
foreclosure or suit, if any, and of such sale and the exercise of any other
rights or remedies, and of all proper fees, expenses, liability and advances,
including reasonable legal expenses and attorneys' fees, incurred or made
hereunder by Secured Party;
(ii) Second, to the payment to Secured Party of the amount
then owing or unpaid to Secured Party (to be applied first to accrued interest
and second to outstanding principal);
4
(iii) Third, to the payment of other amounts then payable to
Secured Party under any of the Transaction Documents; and
(iv) Fourth, to the payment of the surplus, if any, to
Company, its successors and assigns, or to whomsoever may be lawfully entitled
to receive the same.
7. MISCELLANEOUS.
(a) Notices. Except as otherwise provided herein, all notices,
requests, demands, consents, instructions or other communications to or upon
Secured Party or Company under this Security Agreement or the other Transaction
Documents shall be in writing and telecopied, mailed, sent by electronic mail or
delivered, and (i) if to Company, at its telecopier number, electronic mail
address or address set forth below, or (ii) if to Secured Party, at its
telecopier number, electronic mail address or address set forth below (or to
such other telecopier number, electronic mail address or address for any party
as indicated in any notice given by that party to the other party). All such
notices and communications shall be effective (a) when sent by Federal Express
or other overnight service of recognized standing, on the Business Day following
the deposit with such service; (b) when mailed by registered or certified mail,
first class postage prepaid and addressed as aforesaid through the United States
Postal Service, upon receipt; (c) when delivered by hand, upon delivery; and (d)
when telecopied or sent by electronic mail, upon confirmation of receipt.
SECURED PARTY: TANABE HOLDING AMERICA, INC.
401 Hackensack Avenue, 10th Floor
Hackensack, NJ 07601
Attention:
COMPANY: VIVUS, INC.
1172 Castro Street
Mountain View, CA 94040
Attention:
(b) Termination of Security Interest. Upon the payment in full of
all Obligations, the security interest granted herein shall terminate and all
rights to the Collateral shall revert to Company. Upon such termination Secured
Party hereby authorizes Company to file any UCC termination statements necessary
to effect such termination and Secured Party will execute and deliver to Company
any additional documents or instruments as Company shall reasonably request to
evidence such termination. If Secured Party shall have proceeded to enforce any
right under this Security Agreement by foreclosure, sale, entry or otherwise,
and such proceedings shall have been discontinued or abandoned for any reason or
shall have been determined adversely, then and in every such case (unless
ordered otherwise by a court of competent jurisdiction), Secured Party shall be
5
restored to its former position and rights hereunder with respect to the
Collateral subject to the security interest created under this Security
Agreement.
(c) Nonwaiver. No failure or delay on Secured Party's part in
exercising any right hereunder shall operate as a waiver thereof or of any other
right nor shall any single or partial exercise of any such right preclude any
other further exercise thereof or of any other right.
(d) Amendments and Waivers. This Security Agreement may not be
amended or modified, nor may any of its terms be waived, except by written
instruments signed by Company and Secured Party. Each waiver or consent under
any provision hereof shall be effective only in the specific instances for the
purpose for which given.
(e) Assignments. This Security Agreement shall be binding upon and
inure to the benefit of Secured Party and Company and their respective
successors and assigns; provided, however, that each of Company and Purchaser
may not sell, assign or delegate rights and obligations hereunder without the
prior written consent of the other respective party.
(f) Cumulative Rights, etc. The rights, powers and remedies of
Secured Party under this Security Agreement shall be in addition to all rights,
powers and remedies given to Secured Party by virtue of any applicable law, rule
or regulation of any governmental authority, any Transaction Document or any
other agreement, all of which rights, powers, and remedies shall be cumulative
and may be exercised successively or concurrently without impairing Secured
Party's rights hereunder. Company waives any right to require Secured Party to
proceed against any person or entity or to exhaust any Collateral or to pursue
any remedy in Secured Party's power.
(g) Partial Invalidity. If at any time any provision of this
Security Agreement is or becomes illegal, invalid or unenforceable in any
respect under the law or any jurisdiction, neither the legality, validity or
enforceability of the remaining provisions of this Security Agreement nor the
legality, validity or enforceability of such provision under the law of any
other jurisdiction shall in any way be affected or impaired thereby.
(h) Construction. Each of this Security Agreement and the other
Transaction Documents is the result of negotiations among, and has been reviewed
by, Company, Secured Party and their respective counsel. Accordingly, this
Security Agreement and the other Transaction Documents shall be deemed to be the
product of all parties hereto, and no ambiguity shall be construed in favor of
or against Company or Secured Party.
(i) Entire Agreement. This Security Agreement taken together with
the other Transaction Documents constitute and contain the entire agreement of
Company and Secured Party and supersede any and all prior agreements,
negotiations, correspondence, understandings and communications among the
parties, whether written or oral, respecting the subject matter hereof.
(j) Other Interpretive Provisions. References in this Security
Agreement and each of the other Transaction Documents to any document,
instrument or agreement (a) includes all exhibits, schedules and other
attachments thereto, (b) includes all documents, instruments or agreements
6
issued or executed in replacement thereof, and (c) means such document,
instrument or agreement, or replacement or predecessor thereto, as amended,
modified and supplemented from time to time and in effect at any given time. The
words "hereof," "herein" and "hereunder" and words of similar import when used
in this Security Agreement or any other Transaction Document refer to this
Security Agreement or such other Transaction Document, as the case may be, as a
whole and not to any particular provision of this Security Agreement or such
other Transaction Document, as the case may be. The words "include" and
"including" and words of similar import when used in this Security Agreement or
any other Transaction Document shall not be construed to be limiting or
exclusive.
(k) Governing Law. This Security Agreement shall be governed by
and construed in accordance with the laws of the State of California without
reference to conflicts of law rules (except to the extent governed by the UCC).
(l) Counterparts. This Security Agreement may be executed in any
number of counterparts, each of which shall be an original, but all of which
together shall be deemed to constitute one instrument.
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IN WITNESS WHEREOF, Company has caused this Security Agreement to be
executed as of the day and year first above written.
VIVUS, INC.
By:
----------------------------
Name:
--------------------------
Title:
-------------------------
AGREED:
Tanabe holding america, inc.,
as Secured Party
By:
----------------------------
Name:
Title:
ATTACHMENT 1
TO SECURITY AGREEMENT
All right, title, interest, claims and demands of Company in and to the
following property:
(i) All goods and equipment now owned or hereafter acquired,
including, without limitation, all laboratory equipment, computer equipment,
office equipment, machinery, fixtures, vehicles, and any interest in any of the
foregoing, and all attachments, accessories, accessions, replacements,
substitutions, additions, and improvements to any of the foregoing, wherever
located;
(ii) All inventory now owned or hereafter acquired, including,
without limitation, all merchandise, raw materials, parts, supplies, packing and
shipping materials, work in process and finished products including such
inventory as is temporarily out of Company's custody or possession or in transit
and including any returns upon any accounts or other proceeds, including
insurance proceeds, resulting from the sale or disposition of any of the
foregoing and any documents of title representing any of the above, and
Company's books relating to any of the foregoing;
(iii) All contract rights, general intangibles, health care
insurance receivables, payment intangibles and commercial tort claims, now owned
or hereafter acquired, including, without limitation, all patents, patent rights
(and applications and registrations therefor), trademarks and service marks (and
applications and registrations therefor), inventions, copyrights, mask works
(and applications and registrations therefor), trade names, trade styles,
software and computer programs, trade secrets, methods, processes, know how,
drawings, specifications, descriptions, and all memoranda, notes, and records
with respect to any research and development, goodwill, license agreements,
franchise agreements, blueprints, drawings, purchase orders, customer lists,
route lists, infringements, claims, computer programs, computer disks, computer
tapes, literature, reports, catalogs, design rights, income tax refunds,
payments of insurance and rights to payment of any kind and whether in tangible
or intangible form or contained on magnetic media readable by machine together
with all such magnetic media;
(iv) All now existing and hereafter arising accounts, contract
rights, royalties, license rights and all other forms of obligations owing to
Company arising out of the sale or lease of goods, the licensing of technology
or the rendering of services by Company (subject, in each case, to the
contractual rights of third parties to require funds received by Company to be
expended in a particular manner), whether or not earned by performance, and any
and all credit insurance, guaranties, and other security therefor, as well as
all merchandise returned to or reclaimed by Company and Company's books relating
to any of the foregoing;
(v) All documents, cash, deposit accounts, letters of credit,
letter of credit rights, supporting obligations, certificates of deposit,
instruments, chattel paper, electronic chattel paper, tangible chattel paper and
investment property, including, without limitation, all securities, whether
certificated or uncertificated, security entitlements, securities accounts,
commodity contracts and commodity accounts, and all financial assets held in any
securities account or otherwise, wherever located, now owned or hereafter
acquired and Company's books relating to the foregoing; and
(vi) Any and all claims, rights and interests in any of the above
and all substitutions for, additions and accessions to and proceeds thereof,
including, without limitation, insurance, condemnation, requisition or similar
payments and the proceeds thereof.
Notwithstanding the foregoing, the term "Collateral" shall not include
(a) any equipment or other property financed by a third party, provided that
such third party's liens are upon any equipment acquired or held by Company or
any of its subsidiaries to secure the purchase price of such equipment or
indebtedness incurred solely for the purpose of financing the acquisition of
such equipment, so long as such lien extends only to the equipment financed, and
any accessions, replacements, substitutions and proceeds (including insurance
proceeds) thereof or thereto, and (b) account number located at
San Francisco, California, and the contents therein relating to the Company's
facility under lease in Lakewood, New Jersey.