Contract
Exhibit
4.18
THIS NOTE
AND THE SECURITIES ISSUABLE UPON CONVERSION HEREOF HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”),
APPLICABLE STATE SECURITIES LAWS, OR APPLICABLE LAWS OF ANY FOREIGN
JURISDICTION. THIS NOTE AND SUCH SECURITIES HAVE BEEN ACQUIRED FOR
INVESTMENT AND NOT WITH A VIEW TO DISTRIBUTION OR RESALE, AND MAY NOT BE
OFFERED, SOLD, PLEDGED, HYPOTHECATED OR OTHERWISE TRANSFERRED IN THE ABSENCE OF
AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT AND ANY APPLICABLE
STATE SECURITIES LAWS AND IN THE ABSENCE OF COMPLIANCE WITH APPLICABLE LAWS OF
ANY FOREIGN JURISDICTION, OR AN OPINION OF COUNSEL SATISFACTORY TO THE COMPANY
THAT SUCH REGISTRATION IS NOT REQUIRED AND SUCH FOREIGN JURISDICTION LAWS HAVE
BEEN SATISFIED.
PACIFIC
BEACH BIOSCINCES, INC.
CONVERTIBLE
PROMISSORY NOTE
| La Jolla, CA | |
| $___________ | ____________ ___, 20__ |
1. Principal and
Interest
PACIFIC BEACH BIOSCIENCES, INC. (the
“Company”), a
Delaware corporation, for value received, hereby promises to pay to the order of
______________________, or his, her or its assigns (“Holder”), in lawful
money of the United States of America at the address for notices to Holder set
forth in the applicable Purchase Agreement (as defined below) (or such other
address as Holder shall provide to the Company in writing pursuant hereto), the
principal amount of ____________ dollars ($___________), together with interest
as set forth below.
The Company promises to pay interest on
the unpaid principal amount from the date hereof until such principal amount is
paid in full at the rate of eight percent (8%) per annum, or such lesser rate as
shall be the maximum rate allowable under applicable law. Interest
from the date hereof shall be computed on the basis of a 360-day year of twelve
30-day months, shall compound annually and shall be accrued and added to
principal on an annual basis. Unless converted, all unpaid principal
and unpaid accrued interest on this Note shall be due and payable on February 9,
2012; provided,
however, that
upon an Event of Default (as defined herein), the interest rate on this Note
shall be increased to twelve percent (12%) per annum during the term of the
default. For purposes of this Note, an “Event of Default”
shall occur if (i) the Company shall default in the payment on the Note, when
and as the same shall become due and payable; or (ii) the Company shall default
in the due observance or performance of any material covenant, condition or
agreement on the part of the Company contained in this Note or the Purchase
Agreement, and any such default shall continue for a period of five (5) business
days after the Company receives written notice thereof.
This Note
is being issued pursuant to that certain Note and Warrant Purchase Agreement
between the Company and the Holder, dated as of the date hereof (the “Purchase Agreement”),
and is subject to its terms. Capitalized terms used herein but not
defined shall have the meanings given to such terms in the Purchase
Agreement. This Note is being issued together with a series of
convertible promissory notes issued by the Company in connection with an
offering described in the Company’s Confidential Offering Memorandum (the “Memorandum”) dated
November 30, 2009 (such notes shall be collectively referred to as the “Bridge
Notes”). The Bridge Notes rank pari passu in right of payment
with all other existing indebtedness of the Company and, pursuant to Section
2.17 of the Purchase Agreement, no new indebtedness which is secured or senior
in right of payment to the Bridge Notes may be issued by the Company without the
consent of the holders of Bridge Notes representing at least sixty-six and
two-thirds percent (66 ⅔%) of the aggregate principal amount of all outstanding
Bridge Notes. No consent of the holders of Bridge Notes will be
required for issuances by the Company of unsecured indebtedness that ranks pari
passu in right of payment with, or junior in right of payment to, the Bridge
Notes.
2. Conversion.
2.1 (a) All
unpaid principal and unpaid accrued interest on this Note shall be automatically
converted into shares of the Company’s common stock, $0.001 par value per share
(the
“Common Stock”)
upon the consummation of an underwritten initial public offering by the Company
of units consisting of shares of Common Stock and warrants to purchase Common
Stock resulting in aggregate gross cash proceeds (before commissions or other
expenses) to the Company of at least $10,000,000 (a “Qualified IPO”), at a
conversion price equal to 70% of the price at which shares of Common Stock are
sold in a Qualified IPO, and upon such other terms, conditions and agreements as
may be applicable in such Qualified IPO (determined on a fully diluted basis)
(the “Conversion
Price”).
(b) In
the event the Company completes (in one or a series of related transactions) a
merger, consolidation, sale or transfer of more than fifty percent (50%) of the
Company’s capital stock or all or substantially all of the Company’s assets
determined on a consolidated basis, then the term “Securities” as used
herein shall thereafter refer to the equity securities or securities convertible
into or exchangeable for equity securities of the surviving, resulting, combined
or acquiring entity in such merger, consolidation, sale or
transfer.
2.2 Upon
conversion of this Note in accordance with the terms of Section 2.1, the
outstanding unpaid principal and unpaid accrued interest of the Note shall be
converted without any further action by the Holder and whether or not the Note
is surrendered to the Company or its transfer agent, and the indebtedness
evidenced by this Note shall be satisfied in full and no interest shall continue
to accrue on this Note and all rights of the Holder hereunder shall
terminate. The Company shall not be obligated to issue certificates
evidencing the shares of the securities issuable upon such conversion unless the
Note is either delivered to the Company or its transfer agent, or the Holder
notifies the Company or its transfer agent that such Note has been lost, stolen
or destroyed and executes an agreement satisfactory to the Company to indemnify
the Company from any loss incurred by it in connection with such
Note. The Company shall, as soon as practicable after such delivery,
or such agreement and indemnification, issue and deliver to such Holder of such
Note, a certificate or certificates for the securities to which the Holder shall
be entitled. Such conversion shall be deemed to have been made
concurrently with the close of the Qualified IPO. The person or
persons entitled to receive securities issuable upon such conversion shall be
treated for all purposes as the record holder or holders of such securities on
such date. The Company shall not issue fractional shares but shall
round down the number of shares issued to the nearest whole
number. Any conversion effected in accordance with this Section 2
shall be binding upon the Holder hereof.
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3. Prepayment. This
Note may not be prepaid at any time, in whole or in part, prior to its
maturity.
4. 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 Company agrees to pay, in addition to the principal and interest
payable hereunder, reasonable attorneys’ fees and costs incurred by
Xxxxxx.
5. Notices. Any
notice, other communication or payment required or permitted hereunder shall be
in writing and shall be deemed to have been given upon delivery to the address
provided pursuant to the Purchase Agreement. In the case of notice to
either party, copies should be sent to Olshan Xxxxxxxx Frome Xxxxxxxxxx &
Xxxxxxx LLP, Park Avenue Tower, 00 Xxxx 00xx Xxxxxx, Xxx Xxxx, XX 00000,
Facsimile: (000) 000-0000, Attn: Xxxxxx Xxxxxxxxx, Esq.
6. Notice of Proposed
Transfers. Prior to any proposed transfer of this Note or the
Securities, unless there is in effect a registration statement under the
Securities Act covering the proposed transfer, the Holder shall give written
notice to the Company of such Xxxxxx’s intention to effect such
transfer. Each such notice shall describe the manner and
circumstances of the proposed transfer in sufficient detail, and shall, if the
Company so requests, be accompanied (except in transactions in compliance with
Rule 144) by an unqualified written opinion of legal counsel, who shall be
reasonably satisfactory to the Company, addressed to the Company and reasonably
satisfactory in form and substance to the Company’s counsel, to the effect that
the proposed transfer of the Note or Securities may be effected without
registration under the Securities Act; provided, however, no such
opinion of counsel shall be necessary for a transfer without consideration by a
Holder to any affiliate of such Xxxxxx, or a transfer by a Holder which is a
partnership to a partner of such partnership or a retired partner of such
partnership who retires after the date hereof, or to the estate of any such
partner or retired partner or the transfer by gift, will or intestate succession
of any partner to his spouse or lineal descendants or ancestors, if the
transferee agrees in writing to be subject to the terms hereof to the same
extent as if such transferee were the original Holder hereunder. Each
certificate evidencing Securities or the Note transferred as above provided
shall bear an appropriate restrictive legend, except that the Note or
certificate shall not bear such restrictive legend if in the opinion of counsel
for the Company such legend is not required in order to establish compliance
with any provisions of the Securities Act.
7. Acceleration. This
Note shall become immediately due and payable if (i) the Company commences any
proceeding in bankruptcy or for dissolution, liquidation, winding-up,
composition or other relief under state or federal bankruptcy laws; (ii) there
is any material breach of any material covenant, warranty, representation or
other term or condition of this Note or the Purchase Agreement at any time which
is not cured within the time periods permitted therein, or if no cure period is
provided therein, within sixty (60) days after the date on which the Company
receives written notice of such breach; or (iii) there is an event of default
under the convertible promissory notes that the Company issued in December
2007.
8. No Dilution or
Impairment. The Company will not, by amendment of its
Certificate of Incorporation or Bylaws or through any reorganization, transfer
of assets, consolidation, merger, dissolution, issue or sale of securities or
any other voluntary action, 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 dilution or other impairment.
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9. Waivers. The
Company hereby waives presentment, demand for performance, notice of
non-performance, protest, notice of protest and notice of
dishonor. No delay on the part of Holder in exercising any right
hereunder shall operate as a waiver of such right or any other right. This Note
is being delivered in and shall be construed in accordance with the laws of the
State of New York, without regard to the conflicts of laws provisions
thereof.
10. No Stockholder
Rights. Nothing contained in this Note shall be construed as
conferring upon the Holder or any other person the right to vote or to consent
or to receive notice as a stockholder of the Company. For the
avoidance of doubt, upon receipt by the Holder of shares of Common
Stock upon conversion of this Note, the Holder shall have all rights as a
stockholder of the Company with respect to such shares.
11. Amendment. Any term of this Note may be amended
with the written consent of the Company and the holders of not less than
sixty-six and two-thirds percent (66 ⅔%) of the then outstanding aggregate
principal amount of the Bridge Notes, even without the consent of the Holder
hereof. Any amendment effected in accordance with this Section 11
shall be binding upon each holder of any Bridge Note, each future holder of all
such Bridge Notes and the Company; provided, however, that no special
consideration or inducement may be given to any such Holder in connection with
such consent that is not given ratably to all such holders, and that such
amendment must apply to all such holders ratably in accordance with the
principal amount of their then outstanding Bridge Notes. Pursuant to
Section 2.17 of the Purchase Agreements and Section 1 of the Bridge Notes, the
Company may incur additional indebtedness that ranks in priority junior to, or
pari passu with, the Bridge Notes without obtaining the consent of any holder of
Bridge Notes. The Company shall promptly give notice to all holders
of outstanding Bridge Notes of any amendment effected in accordance with this
Section 11.
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| ISSUED as of the date first above written. | ||
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| PACIFIC BEACH BIOSCIENCES, INC. | ||
| By: __________________________________________________________ | ||
| Name: | ||
| Title: | ||
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