FUTURE ADVANCE PROMISSORY NOTE
Exhibit
4.4
FUTURE
ADVANCE PROMISSORY NOTE
For value
received, the undersigned, VENTRUS BIOSCIENCES, INC., a Delaware corporation
(the “Borrower”), having an address of 000 Xxxxxxx Xxxxxx, Xxx Xxxx, XX 00000,
hereby promises to pay to the order of __________________________, or its
permitted assigns (the “Holder”), having an address of 000 Xxxxxxx Xxxxxx, Xxx
Xxxx, XX 00000, at such place as the Holder may from time to time designate in
writing, in lawful currency of the United States of America, an amount equal to
the sum of all loans made by the Holder to the Borrower pursuant to Section 2
hereof in immediately available funds, together with interest at the rate
provided below, subject to the terms and conditions hereof.
1. Interest. Interest
shall accrue on the unpaid principal balance of this Note at a fixed rate equal
to eight percent (8%) per annum, and shall be payable on the Maturity Date, or,
if earlier, simultaneously with any prepayment pursuant to Section 5 below;
provided, however, that upon an
Event of Default (as defined below), the interest rate on this Note shall be
increased to twelve percent (12%) per annum. Simple interest from the date of
each advance as referenced on Schedule A attached
hereto shall be computed on the basis of a 360-day year of twelve 30-day
months.
2. Loans. From and after
the date hereof, but prior to the Maturity Date, or such later
date as the Holder and the Borrower may agree in writing, Borrower may request
the Holder to provide loans under this Note. For purposes of this Note, any
amounts which the Holder pays to third parties on behalf of the Borrower for
obligations arising out of the operations of the business of the Borrower shall
be considered a “loan.” Promptly after such request, if no Event of Default
shall have occurred and be continuing, the Holder or one or more if its
affiliates may provide such loan to the Borrower in the amount requested. The
Borrower hereby authorizes the Holder to record on the attached Schedule A the
principal amount of each loan made by the Holder or one or more of its
affiliates to the Borrower; provided, however, that any
failure by the Holder to record any such loan shall not affect the Borrower’s
obligation to repay such loan, together with interest thereon, in accordance
with this Note.
3. Maturity Date. The
unpaid principal balance of this Note, and all interest accrued thereon,
shall become immediately due and payable on the earliest to occur of the
following: (i) the ___ anniversary of the date hereof; (ii) the date of the
initial public offering of the Borrower’s securities pursuant to a registration
statement filed with the Securities and Exchange Commission in accordance with
the Securities Act of 1933, as amended; (iii) the first date on which the
Borrower’s securities (or any securities received in exchange for such
securities) trades on a national securities exchange, the Nasdaq SmallCap Market
or the Nasdaq National Market System or in the over-the-counter market; (iv)
consummation of an equity financing (whether in one transaction or a series of
related transactions) in which the gross proceeds to the Borrower equal or
exceed five million dollars ($5,000,000); (v) a Sale of the Borrower; or (vi) an
Event of Default (as defined below). For purposes hereof, a “Sale of the Borrower”
shall mean (x) the sale of all or substantially all of the Borrower’s assets;
(y) the sale or transfer of the outstanding shares of capital stock of the
Borrower; or (z) the merger or consolidation of the Borrower with another person
or entity, in each case in clauses (y) and (z) above under circumstances in
which the holders of the voting power of outstanding capital stock of the
Borrower, immediately prior to such transaction, own less than 50% in voting
power of the outstanding capital stock of the Borrower or the surviving or
resulting corporation or acquirer, as the case may be, immediately following
such transaction. A sale (or multiple related sales) of one or more subsidiaries
of the Borrower (whether by way of merger, consolidation, reorganization or sale
of all or substantially all assets or securities) which constitutes all or
substantially all of the consolidated assets of the Borrower shall be deemed a
Sale of the Borrower.
4. Voluntary Prepayment.
All unpaid principal and interest on this Note may be prepaid in whole or in
part at any time without premium or penalty. Unless otherwise agreed or required
by applicable law, any voluntary prepayment by the Borrower will be applied
first to any unpaid collection costs and late charges, then to accrued and
unpaid interest, and then to principal.
5. Events of Default. An
“Event of
Default” shall occur:
(a) if
the Borrower shall default in the payment on the Note, when and as the same
shall become due and payable; or
(b) if
the Borrower shall default in the due observance or performance of any material
covenant, condition or agreement on the part of the Borrower contained in this
Note, and any such default shall continue for a period of five (5) days after
the Company receives notice thereof; or
(c) if
the Borrower shall default in the payment of the principal of, or any interest
on, any other debt or liability of the Borrower, when and as the same shall
become due and payable, if such default(s), in the aggregate, total at least
$25,000; or
(d) if
the Borrower commences any proceeding for dissolution, liquidation, winding up
or cessation of its business; or
(e) if
(i) the Borrower either (A) becomes insolvent, (B) is adjudicated insolvent or
bankrupt, (C) admits in writing its inability to pay its debts, (D) comes under
the authority of a custodian, receiver or trustee for it or for substantially
all of its assets, or (E) makes an assignment for the benefit of creditors; or
(ii) any proceeding under any law related to bankruptcy, insolvency, liquidation
or the reorganization, readjustment or the release of debtor is commenced by or
against the Borrower, and in the event any such proceeding is commenced against
it, such proceeding is not dismissed within sixty (60) days of
commencement.
As soon
as practicable, but in any event within five (5) days after the Borrower becomes
aware of the existence of any Event of Default, or any event or condition which
after notice or lapse of time or both, reasonably could be expected to become an
Event of Default, the Borrower shall notify the Holder as to the existence of
such Event of Default or the nature of such event or
condition.
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6. Attorney’s Fees. If
the indebtedness represented by this Note or any part thereof is collected in
bankruptcy, receivership or other judicial proceedings or if this Note is placed
in the hands of attorneys for collection after default, the Borrower agrees to
pay, in addition to the principal and interest payable hereunder, reasonable
attorneys’ fees and costs incurred by Xxxxxx in collection.
7. Notices. All notices
and other communications provided for hereunder shall be in writing and
personally delivered, delivered by nationally-recognized overnight courier,
mailed, or sent by facsimile, to the applicable party’s address as set forth
above (or such other address as may be provided by Holder or Borrower in a
notice to the other pursuant to this Section). Any notice, demand or request so
delivered shall constitute valid notice under this Note and shall be deemed to
have been received (i) on the day of actual delivery in the case of personal
delivery, if delivered on a business day (otherwise on the next business day),
(ii) on the next business day after the date when sent in the case of delivery
by nationally-recognized overnight courier, (iii) on the fifth business day
after the date of deposit in the U.S. mail in the case of mailing or (iv) upon
receipt in the case of a facsimile transmission if received on a business day
(otherwise on the next business day). Any party hereto may from time to time by
notice in writing served upon the other as aforesaid designate a different
mailing address or a different Person to which all such notices, demands or
requests thereafter are to be addressed.
8. No Impairment. The
Borrower will not avoid or seek to avoid the observance or performance of any of
the terms of this Note, but will at all times in good faith assist in the
carrying out of all such terms and in the taking of all such action as may be
necessary or appropriate in order to protect the rights of the holder of this
Note against impairment.
9. Usury.
Notwithstanding anything herein to the contrary, this Note is subject to the
express condition that at no time shall the Borrower be obligated or required to
pay interest hereunder at a rate which could subject Holder to either civil or
criminal liability as a result of being in excess of the maximum contract rate
which is permitted by law. If, by the terms of this Note, the Borrower is at any
time required or obligated to pay interest at a rate in excess of the maximum
contract rate which is permitted by law, the rate of interest under this Note
shall be immediately reduced to the maximum contract rate which is permitted by
law and all interest payable hereunder shall be computed at the maximum contract
rate permitted by law, and the portion of all prior interest payments in excess
of the maximum contract rate permitted by law shall be applied to and shall be
deemed to have been payments made for the reduction of the outstanding principal
balance of this Note.
10. Waiver of Notice of
Presentment. All parties to this Note, whether principal, surety,
guarantor or endorser, hereby (i) waive presentment, demand for performance and
notice of protest, notice of dishonor and notice of acceleration of maturity,
(ii) waive any rights which they may have to require Holder to proceed against
any other person or property, (iii) agree that without notice to any party and
without affecting any party’s liability, Holder, at any time or times, may grant
extensions of the time for payment or other modification of this Note, and may
add or release any party primarily or secondarily liable, and (iv) agree that
Holder may apply all monies made available to it in connection with the payment
of this Note either to this Note or to any other obligation of any of the
parties to Holder, as Holder may elect from time to time.
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11. No Waiver;
Assignment. The failure of Holder to exercise any right or remedy
provided hereunder or available at law shall not be a waiver or release of such
rights or remedies or the right to exercise any right or remedy at another time.
Borrower may not negotiate, transfer or assign this Note without the prior
written consent of the Holder. This Note is binding upon, and will inure to the
benefit of, each holder, the maker, any sureties, endorsers or guarantors, and
their successors and permitted assigns.
12. Governing Law; Consent to
Jurisdiction. This Note shall be construed in accordance with the laws of
the State of New York without regard to the conflicts of laws provisions
thereof. Each of the parties hereto submits to the exclusive jurisdiction of any
state or federal court sitting in the Borough of Manhattan, County of New York,
in any action or proceeding arising out of or relating to this Note, agrees that
all claims in respect of the action or proceeding may be heard and determined in
any such court and agrees not to bring any action or proceeding arising out of
or relating to this Note in any other court. Each of the parties waives any
defense of inconvenient forum to the maintenance of any action or proceeding so
brought and waives any bond, surety or other security that might be required of
any other party with respect thereto. Any party may make service on any other
party hereto by sending or delivering a copy of the process to the party to be
served at the address and in the manner provided for the giving of notices in
Section 7 above. Nothing in this Section, however, shall affect the right of any
party to serve legal process in any other manner permitted by law. Each party
agrees that a final judgment in any action or proceeding so brought shall be
conclusive and may be enforced by suit on the judgment or in any other manner
provided by law.
* * * * *
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Exhibit
4.4
IN WITNESS WHEREOF, this
Future Advance Promissory Note has been executed by the Borrower as of the day
and year first above written.
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VENTRUS
BIOSCIENCES, INC.
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By:
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Name:
Xxxxxx Xxxxxxx
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Title:
President &
CEO
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Exhibit
4.4
SCHEDULE A
SCHEDULE
OF ADVANCES
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Date of Advance
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Advance Amount
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AMENDMENT
AGREEMENT
(Related
Party Notes)
December
21, 2009
This
Amendment Agreement (this “Agreement”) is entered into by
and between Ventrus Biosciences, Inc., a Delaware corporation (the “Company”) and each of Capretti
Grandi, LLC and Paramount Biosciences, LLC (together with successors and assigns
of each, a “Holder,” and
collectively, the “Holders”) and amends the
Future Advance Promissory Notes issued to them on April 24, 2009 and July 23,
2008 respectively (collectively, the “Related Party Notes”) in the
aggregate principal amount of $2,573,201.
RECITALS
Whereas,
each of the Holders and the Company are party to the Related Party Notes;
and
Whereas, each of the undersigned
Holders agrees to amend the Related Party Notes on the terms set forth
herein.
AMENDMENT
NOW,
THEREFORE, the parties agree as follows:
1. Amendments. Section 3
of each of the Related Party Notes is hereby deleted and replaced in its
entirety by the following:
3(a) All
references to the “Company” shall mean the “Borrower”. All unpaid
principal and accrued but unpaid interest on this Note shall be automatically
converted into the Company’s equity securities (the “Securities”) issued in the
Company’s next equity financing (or series of related equity financings),
including without limitation a firm commitment underwritten initial public
offering pursuant to an effective registration statement under the Securities
Act of 1933, as amended (such offering, a “Qualified IPO”) involving the sale of
Securities in which the Company receives in arm’s length non-related party
transaction(s) at least $8,853,976 (the “Threshold”) in aggregate gross cash
proceeds (before brokers’ fees or other transaction related expenses, and
excluding any such proceeds resulting from any conversion of the convertible
promissory notes existing as of the date hereof (the “Bridge Notes”)) (a
“Qualified Financing”), at a conversion price equal to 70% of the lowest per
unit price paid for such Securities in cash by investors in such Qualified
Financing, and, with the exception of a Qualified IPO, upon such other terms,
conditions and agreements as may be applicable in such Qualified
Financing. Notwithstanding the foregoing, the Threshold shall be
automatically reduced, on a dollar-for-dollar basis, by the amount of aggregate
gross cash proceeds to the Company from the arm’s length non-related party sale
of equity or debt securities of the Company, or the incurrence of new loans at
arm’s length from non-related party or parties, in each case after December 21,
2009, but shall not in any event be reduced to less than
$5,000,000.
3(b) In the
event that the Company consummates a merger, share exchange, or other
transaction (or series of related transactions), other than in connection with a
Qualified Financing, in which (i) the Company merges into or otherwise becomes a
wholly-owned subsidiary of a company that (A) is subject to the public company
reporting requirements of the Securities Exchange Act of 1934, as amended, or
the equivalent reporting requirements of the Ontario Securities Commission, or
that is listed on the London Stock Exchange main market, the Euronext markets,
or AIM (or their successor exchanges or markets), and (B) does not engage in any
active operations, and (ii) the aggregate consideration payable to the Company
or its stockholders in such transaction(s) (the “Reverse Merger Consideration”)
is greater than or equal to $10,000,000 (a “Reverse Merger”), then immediately
prior to such Reverse Merger, all unpaid principal and accrued but unpaid
interest on this Note shall be automatically converted into Common Stock at a
conversion price per share equal to 70% of the quotient obtained by dividing (i)
the Reverse Merger Consideration less the amount of unpaid principal and accrued
but unpaid interest on all Bridge Notes, on all other notes convertible into
equity securities of the Company issued after December 21, 2009 (the “New Bridge
Notes”), and the Related Party Notes immediately prior to the Reverse Merger by
(ii) the number of shares of Common Stock of the Company then outstanding, on a
fully diluted basis (the “Outstanding Shares”). For this purpose, Outstanding
Shares shall (i) exclude any shares of Common Stock issuable upon conversion of
the Notes, the New Bridge Notes or the Related Party Notes or upon exercise of
the warrants issued to the Placement Agent in connection with the sale of the
Notes or the New Bridge Notes but (ii) include all shares of Common Stock
issuable upon the exercise of (A) options and other warrants outstanding (to the
extent that such options or warrants are exercised or assumed in connection with
the Reverse Merger) and (B) options that the Company is required by agreement to
issue to one or more employees, consultants, or licensors of the Company in
connection with such Reverse Merger to maintain a specified percentage interest
in the Company (but which have not yet been issued)).
3(c) The price
per share at which the Notes will convert into Common Stock of the Company upon
a Sale of the Company will be equal to the lesser of (i) 70% of the quotient
obtained by dividing (x) the value of the Sale Proceeds received in such
transaction less the unpaid principal and accrued but unpaid interest on the
Notes, the New Bridge Notes and the Related Party Notes immediately prior to the
Sale of the Company by (y) the number of Outstanding Shares, and (ii) the
quotient obtained by dividing (x) $50,000,000 less the unpaid principal and
accrued but unpaid interest on the Notes, the New Bridge Notes and the Related
Party Notes by (y) the number of Outstanding Shares. For purposes of this
Section 2.1(c), Outstanding Shares shall be determined as set forth in Section
2.1(b) of this Note, except that it shall not include any shares of Common Stock
issuable upon the exercise of any options and warrants outstanding immediately
prior to such Sale of the Company if such options or warrants have an exercise
price in excess of the Note conversion price determined under this Section
3(c)).
2. Consent. The undersigned
hereby consents to the amendments to the Related Party Notes as set forth in
Section 1 hereof.
3. Representations
and Warranties of the Holders. Each of the
Holders party hereto hereby represents and warrants to the Company
that:
(a) the
Holder is the lawful holder of their Related Party Note free and clear of all
security interests, claims, liens, pledges, conditional sales contracts,
attachments, judgments and encumbrances of every kind and nature, including
restrictions, or rights of any third parties;
(b) the
Holder has the requisite power and authority to execute and deliver this
Agreement, to perform the Holder’s obligations hereunder and to engage in the
transactions contemplated hereby;
(c) the
Holder has taken all requisite action to make all the provisions of this
Agreement the valid and enforceable obligations they purport to be;
and
(d) this
Agreement constitutes the valid and binding obligation of the Holder,
enforceable in accordance with its terms, subject to laws of general application
from time to time in effect affecting creditors' rights and the exercise of
judicial discretion in accordance with general equitable
principles.
4. Miscellaneous
(a) This
Agreement may be executed in two or more counterparts, all of which when taken
together shall be considered one and the same agreement and shall become
effective when counterparts have been signed by each party and delivered to the
other party, it being understood that both parties need not sign the same
counterpart. In the event that any signature is delivered by facsimile or
electronic transmission, such signature shall create a valid and binding
obligation of the party executing (or on whose behalf such signature is
executed) with the same force and effect as if such facsimile or electronic
signature page were an original thereof.
(b) This
Agreement shall be governed by the law of the State of New York without giving
effect to any principles or conflicts of law.
(c) Except
as expressly amended hereby, the terms of the Related Party Notes shall remain
in full force and effect. Each party shall do and perform, or cause
to be done and performed, all such further acts and things, and shall execute
and deliver all such other agreements, certificates, instruments and documents,
as the other party may reasonably request in order to carry out the intent and
accomplish the purposes of this Agreement and the consummation of the
transactions contemplated hereby.
(d) Existing
references to any of the Related Party Notes are henceforth deemed references to
the Amended Related Party Notes.
(e) If
any provision or portion of this Agreement shall be determined to be invalid or
unenforceable for any reason, in whole or in part, the remaining provisions of
this Agreement shall be unaffected thereby and shall remain in full force and
effect to the fullest extent permitted by law.
(f) The
headings contained in this Agreement are for reference purposes only and shall
not be deemed to be part of the Agreement or to affect the meaning or
interpretation of this Agreement.
(g) All
of the terms and provisions of this Agreement shall bind and inure to the
benefit of the parties hereto and their respective successors and assigns. This
Agreement is intended for the benefit of the parties hereto and their respective
permitted successors and assigns, and is not for the benefit of, nor may any
provision hereof be enforced by, any other person or entity.
[Remainder of page intentionally left
blank]
IN WITNESS WHEREOF, the parties hereto
have caused this Agreement to be duly executed by their respective authorized
signatories as of the date first indicated above.
Ventrus
Biosciences, Inc.
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By:
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/s/ Xxxx
Xxxxxxx
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Xxxx
Xxxxxxx, Acting
President
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Capretti
Grandi, LLC
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By:
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/s/ Xxxxxxx X. Xxxxxxxxx, M.D. |
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Name:
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Xxxxxxx X. Xxxxxxxxx, M.D. |
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Title:
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Managing Member |
Paramount
Biosciences, LLC
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By:
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/s/ Xxxxxxx X. Xxxxxxxxx, M.D. |
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Name:
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Xxxxxxx X. Xxxxxxxxx, M.D. |
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Title:
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Sole member |
Amendment
Agreement Signature Page
