THE NOTE REPRESENTED HEREBY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933,AS AMENDED, ANO MAY NOT BE SOLO, TRANSFERRED, ASSIGN ED, PLEDGED, OR HYPOTHECATEO UNLESS AND UNTIL REGISTERED UNDER SUCH ACT, OR UNLESS THE COMPANY HAS RECEIVED AN...
Exhibit 10.25
THE NOTE REPRESENTED HEREBY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933,AS AMENDED, ANO MAY NOT BE SOLO, TRANSFERRED, ASSIGN ED, PLEDGED, OR HYPOTHECATEO UNLESS AND UNTIL REGISTERED UNDER SUCH ACT, OR UNLESS THE COMPANY HAS RECEIVED AN OPINION Of COUNSEL OR OTHER EVIDENCE, SATISFACTORY TO THE COMPANY ANO ITS COUNSEL. THAT SUCH REGISTRATION IS NOT REQUIRED.
THE PAYMENT OF THIS NOTE ANO THE RIGHTS OF THE LENDER UNDER THIS NOTE ARE SUBORDINATED TO THE PAYMENT OF SENIOR INDEBTEDNESS (AS DEFINED IN THE SUBORDINATION AGREEMENT REFERRED TO BELOW) ("SENIOR INDEBTEDNESS") AND THE RIGHTS OF THE HOLDERS OF SENIOR INDEBTEDNESS PURSUANT TO THE TERMS OF THE SUBORDINATlON AGREEMENT DATED AS OF THE DATE HEREOF (THE "SUBORDINATION AGREEMENT") BY AND AMONG 60 DEGREES PHARMACEUTICALS, LLC, KNIGHT THERAPEUTICS (BARBADOS) INC. (THE "SENIOR LENDER") AND EACH OF THE CREDITORS REFERRED TO THEREIN, INCLUDING THE LENDER UNDER THIS NOTE.
PROMISSORY NOTE
ORIGINAL ISSUE DATE: OCTOBER 11, 2017
AMOUNT PER UNIT: $250,000.00 USO
NUMBER OF UNITS: 3
PRINCIPAL AMOUNT OF NOTE: $750,000.00 USO
FOR VALUE RECEIVED, 60 DEGREES PHARMACEUTICALS, LLC, a District of Columbia limited liability company the "Borrower" ited (the "Lender"), located at r at such other location as the om 1me o 1me m a written notice provided to the Borrower, or to any subsequent holder or permitted assignee of this promissory note (this "Note"), the principal amount of Seven Hundred Fifty Thousand and 00/100 DOLLARS ($750,000.00) (the "Principal Amount'"), upon the terms and conditions specified below. This Note is issued as part of an offering of convertible and non-convertible promissory notes (the " Offering").
The Borrower is not permitted to issue more than ten discrete units for Two Hundred and Fifty Thousand and 00/100 DOLLARS ($250,000.00) each (each, a "Unit") for a total Offering ofTwo Million Five Hundred Thousand and 00/100 DOLLARS ($2,500 ,000.00) in convertible and non convertible promissory notes (including this Note) as part of the Offering without the prior written consent of all existing holders of such promissory notes. All promissory notes issued for Units as part of the Offering will be issued in the principal amount of Two Hundred Fifty Thousand and 00/100 DOLLARS ($250,000.00). This Note represents three (3) Units of non-convertible promissory notes combined into one instrument.
1. | Maturitv Date. The "Maturity Date" of the Note shall be the earlier of: |
a. | the presale of a Priority Review Voucher ("PRV Presale") by the Borrower after the United States Food and Drug Administration (USFDA) confirms the Borrower's eligibility for a New Drug Application (NOA); or |
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b. | the sale of a Priority Review Voucher ("'PRV" ) by the Borrower previously granted by the USF DA to the Borrower for a tafenoquine prophylactic antimalarial drug ("PRV Voucher Sale"); or |
c. | Sixty (60) days after the date on which the Senior indebtedness is indefeasibly paid in full and the Senior Lender has terminated the Subordination Agreement pursuant to Section 2 2 thereof. For the avoidance of doubt, no payments of principal, pursuant to this Section I or of interest, purs uant to Section 2 below, shall be made by Borrower to Lender unless permitted by the terms of the Subordination Agreement. |
4. PRV Distributions, Repayment of Principal, and Interest. Immediately following the date of closing a PRV Voucher Sale or PRY Pre-sale, the Borrower will satisfy its Knight Obligation, and thereafter make, within ten (10) days, the following distributions to each holder of one or more Units issued as part of the Offering (both convertible and non-conve rtible), including the Lender and the Founde rs, in the event either or both purchase s uch Uni ts:
A. | payment in full of the Princi pal Amount of each Unit; and |
B. | payment in full of the interest accrued under each Unit; and |
C. | and one percent (1%) of the gross proceeds from any PRV Sale or PRV Presale for each Unit owned; and if |
D. | the Unit is deemed to be a Preferred Unit then the Lender will receive a bonus pro rata share of two percent (2%) of gross proceeds from the PRV Sale or PRV Presale calculated as follows: amount of the gross proceeds from the PRV Sale or PRV Pre- Sale in US dollars ($US), multiplied by two percent (2%), multiplied by a quotient equal to the number of Preferred Units held by the Lender, divided by the total number of Preferred Units purchased under the Offering. |
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A. | Exercise Price: Pre-money value of the Borrower will be set at the lower of $32.835M USO (approximately 16,417,500 units outstanding at $2 per unit) or a valuation agreed with a third party that is lower than $32.835M. In the event the agreed valuation is $32.835M, each $250,000 USO note will convert to 125,000 units of Borrower stock. |
B. | Option Period: The Lender's option to convert begins at the Maturity date and shall expire 30 days later. |
C. | No Interest Payment and Conversion of Principal: Interest will not be paid if Lender elects to convert the outstanding Principal of this Note to Equity. In the event the Lender elects to convert, the Principal will be converted to equity in the Borrower per above and the Note will be retired. |
D. | Subscription Agreement: Investor will sign a stand-alone subscription agreement which will contain the form for the Lender to exercise its right of conversion and to join in the operating agreement of the Company. |
8. Fvents of Accele ration. The entire unpaid Principal Amount under this Note shall become immediately due and payable, subordinate to the Borrower's obligation to pay in full the First Knight Obligation, upon (i) admission by the Borrower of its inability to pay its debts generally as they become due, (ii) the filing of a petition in bankruptcy by the Borrower, (iii) the execution by the 0orrower of a general assignment for the benefit of creditors, or (iv) the filing by or against the Borrower of a petition in bankruptcy or a petition for relief under the provisions of the federal bankruptcy code or another state or federal law for the relief of debtors and the continuation of such petition without dismissal for a period of ninety (90) days or more.
9. Amendment and Waiver. This Note may be amended or a provision hereof waived only in a writing signed by both the Borrower and the Lender.
10. Severnbility. The unenforceability or invalidity of any provision or provisions of this Note as to any person, entity, or circumstance shall not render that provision or those provisions unenforceable or invalid as to any other provisions or circumstances, and all provisions hereof, in all other respects, shall remain valid and enforceable.
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SIGNATURE PAGE FOLLOWS
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IN WITNESS HEREOF ,this Note has been executed by the Borrower and delivered to the Lender as of the date first above written.
BORROWER | LENDER | |||
60 DEGREES PHARMACEUTICALS, LLC | ||||
a District of Columbia limited liability company | ||||
By: | ||||
Name: | Xxxxxxxx. Dow, Manager | Name: | ||
Title: | ||||
WITNESS: | WITNESS: | XXX XXX | ||
XXXXXX XXXXXX | ||||
Chief Financial Officer |
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