OMNIBUS AMENDMENT
Exhibit
10.1
This
OMNIBUS AMENDMENT
(this
“Amendment”)
dated
June 1, 2007 is entered into by and among Alteon Inc., a Delaware corporation
(the “Company”),
and
the purchasers (the “Purchasers”)
identified on the signature pages to that certain Note and Warrant Purchase
Agreement dated as of January 11, 2007 (the “Note
Purchase Agreement”).
WHEREAS,
in connection with the execution and delivery of the Note Purchase Agreement,
the Company issued and sold to the Purchasers (i) an aggregate of $3,000,000
of
its Senior Convertible Secured Promissory Notes (the “Prior Notes”),
each
dated January 11, 2007, and (ii) warrants (the “Warrants”),
each
dated January 11, 2007, to purchase and aggregate of 25,734,453 shares of the
common stock, $0.01 par value per share (the “Common
Stock”)
of the
Company;
WHEREAS,
on March 30, 2007, the Company and the Purchasers entered into a Waiver and
Acknowledgment to delay certain dates set forth in the Note Purchase Agreement
and related instruments;
WHEREAS,
the Company, the Purchasers and other investors have entered into a Series
B
Preferred Stock and Warrant Purchase Agreement dated April 5, 2007 (the
“Preferred Purchase
Agreement”);
WHEREAS,
effective April 30, 2007, the Company and the Purchasers entered into an
Amendment No. 1 to Registration Rights Agreement to delay certain dates set
forth in that certain Registration Rights Agreement, dated as of January 11,
2007 (the “Registration
Rights Agreement”,
and
together with the Note Purchase Agreement, the Notes and the Warrants, the
“Note
Purchase Documents”);
WHEREAS,
the Company has requested, and the Purchasers have agreed to fund, an additional
aggregate principal amount of $3,000,000 in consideration of new Senior
Convertible Secured Promissory Notes dated the date hereof in substantially
the
form attached hereto as Exhibit
A
(the
“New
Notes”)
and
for the other agreements and mutual covenants contained herein; and
WHEREAS,
in accordance with the relevant provisions of the Note Purchase Documents and
the Preferred Purchase Agreement, the Company and the Purchasers desire to
amend
the Note Purchase Documents as set forth herein.
NOW
THEREFORE, in consideration of the mutual covenants contained herein, and for
good and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the Company and each of the Purchasers agree as follows:
1.
Issuance
of New Notes.
a)
New
Notes.
On the
date hereof, the Company shall issue to each of the Purchasers a New Note in
the
principal amount set forth opposite such Purchaser’s
name on
Schedule
A under
the
column entitled “Aggregate Principal Amount,” and each of the Purchasers shall
pay by wire transfer of immediately available funds to an account designated
by
the Company an amount set forth opposite such Purchaser’s
name on
Schedule
A under
the
column entitled “Additional Purchase Price.” The New Notes shall become
effective only upon the surrender of the corresponding Prior Notes for
cancellation by the Company or execution of an affidavit of lost note in form
and substance reasonably satisfactory to the Company.
b) Representations
and Warranties.
Each
Purchaser hereby confirms that the representations and warranties set forth
in
Section 3 of the Note Purchase Agreement are true and correct as of the date
hereof as if made on the date hereof. Likewise, the Company hereby confirms
that
the representations and warranties set forth in Section 4 of the Note Purchase
Agreement are true and correct as of the date hereof as if made on the date
hereof.
c) Security
Agreements.
The
Company acknowledges and agrees that any references to Notes in that certain
Security & Guaranty Agreement, dated January 11, 2007, and that certain
Intellectual Property Security Agreement, dated January 11, 2007 (together
the
“Security
Agreements”),
shall
be deemed to include the New Notes and that the performance and observance
of
the obligations set forth in the New Notes by the Company shall be deemed to
be
“Obligations” for purposes of the Security Agreements.
d)
Closing
Conditions.
Each
Purchaser’s obligation to purchase its New Note is subject to the following
conditions:
| i. |
The
Company’s representations and warranties contained in Section 4 of the
Note Purchase Agreement shall be true and correct on and as of date
hereof.
|
| ii. |
The
Company shall deliver a certificate of the Secretary of the Company
dated
the date hereof, certifying the incumbency and authority of the officers
or authorized signatories of the Company who execute the New Note
and the
truth, correctness and completeness of the resolutions duly adopted
by the
Board of Directors of the Company authorizing the execution of this
Amendment and the New Notes and the other documents delivered or
to be
delivered in connection herewith and the consummation of the transactions
contemplated herein and therein, as applicable;
and
|
| iii. |
The
Company shall deliver the opinion of Mintz,
Levin, Cohn, Ferris, Glovsky and Popeo, P.C.,
counsel to the Company, dated the date hereof, in substantially the
same
form provided at the initial Closing under the Note Purchase Agreement,
subject only to such changes, qualifications, limitations or exceptions
as
may be acceptable to each Lender.
|
2
e) Additional
Purchaser.
Xxxxx
Bros. Investments II, L.P. shall be deemed to be a “Purchaser” under the Note
Purchase Agreement and hereunder.
2.
Amendments
to Note Purchase Agreement.
a) Preferred
Financing.
Section
5(l) of the Note Purchase Agreement is hereby deleted in its entirety and
replaced with the following:
“(l) Preferred
Financing.
As
promptly as practical after the Closing Date, and in no event later than April
15, 2007, each of the Company and the Lenders shall use their respective
commercially reasonable efforts to negotiate and enter into definitive
transaction documents pertaining to the transactions (the “Preferred
Financing”)
contemplated in that certain Memorandum of Proposed Terms for Private Placement
of Preferred Stock and Warrants dated as of January 4, 2007 (the “Term
Sheet”);
subject in the case of the Lenders to the satisfactory completion of their
due
diligence review in their sole discretion. Without limiting the generality
of
the foregoing, the Company shall provide each stockholder entitled to vote
at a
special or annual meeting of stockholders of the Company (the “Stockholder
Meeting”),
which
shall be promptly called and held not later than July 31, 2007 (the
“Stockholder
Meeting Deadline”),
a
proxy statement, in a form reviewed and approved by the Lenders soliciting
each
such stockholder’s affirmative vote at the Stockholder Meeting for approval of
the Preferred Financing and the other matters contemplated in the Term Sheet
in
accordance with applicable law and the rules and regulations of the American
Stock Exchange (such affirmative approval being referred to herein as the
“Stockholder
Approval”),
and
the Company shall use its commercially reasonable efforts to solicit its
stockholders’ approval of such resolutions and to cause the Board of Directors
of the Company to recommend to the stockholders that they approve such
resolutions. The Company shall use its commercially reasonable efforts to obtain
the Stockholder Approval by the Stockholder Meeting Deadline.”
b) Fees
and Expenses.
The
Company’s obligation to reimburse the Collateral Agent or
its
designee(s) for fees and expenses in Section 15 of the Note Purchase Agreement
is hereby amended from a maximum of “One Hundred Thousand Dollars ($100,000)” to
“One Hundred Seventy-Five Thousand Dollars ($175,000).”
3. Amendment
to Warrants.
The
definition of Initial Exercise Date as set forth in the first paragraph of
each
of the Warrants is hereby amended from “May 31, 2007” to read “July 31,
2007”.
4. Exclusivity.
The
Company and Purchasers further agree that, with respect to that certain
Memorandum of Terms dated January 4, 2007, the date of “March 31, 2007” in the
section entitled “Exclusivity and Confidentiality” shall be extended to “July
31, 2007.”
3
5. Ratification.
The
parties hereby ratify and confirm in all respects the Note Purchase Documents
and the Preferred Purchase Agreement, as amended by this Amendment.
6. Governing
Law.
All
questions concerning the construction, validity, enforcement and interpretation
of the Transaction Documents shall be governed by and construed and enforced
in
accordance with the internal laws of the State of New York, without regard
to
the principles of conflicts of law thereof.
7. Other
Matters.
The
Company hereby acknowledges and agrees that the execution and delivery by the
Purchasers of this Amendment shall not be deemed to create a course of dealing
or otherwise obligate the Purchasers to execute similar extensions, amendments
or waivers under the same or similar circumstances in the future.
8. Execution.
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
transmission or by e-mail delivery of a “.pdf” format data file, 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 “.pdf” signature page were an original thereof.
[remainder
left intentionally blank]
4
IN
WITNESS WHEREOF, the undersigned hereby executes this Omnibus Amendment as
of
the date first set forth above.
|
ALTEON
INC.
|
Address
for Notice:
|
|
By:
/s/
Xxxx Xxxxxxxxx
Name:
Xxxx Xxxxxxxxx
Title:
President
|
000
Xxxx Xxxxx Xxxxxx
Xxxxxxxx,
XX 00000
|
|
With
a copy to (which shall not constitute notice):
Xxxxx
Xxxxx Xxxx Xxxxxx Xxxxxxx and Xxxxx, P.C.
Xxx
Xxxxxxxxx Xxxxxx
Xxxxxx,
XX 00000
Attn:
Xxxxxxx X. Xxxxxx, Esq.
|
[REMAINDER
OF PAGE INTENTIONALLY LEFT BLANK
SIGNATURE
PAGE FOR PURCHASERS FOLLOW]
IN
WITNESS WHEREOF, the undersigned hereby executes this Omnibus Amendment as
of
the date first set forth above.
|
XXXXX/XXXXX
INVESTMENTS, L.P.
By:
Xxxxx/Tisch
Capital, L.P., its general partner
By:
Xxxxx/Xxxxx
Capital (GP), LLC,
its
general partner
By:
/s/
Xxxxx Xxxxx
Name:
Xxxxx Xxxxx, Ph.D.
Title:
Managing Member
XXXXX
BIOTECH FUND I, L.P.
By:
Xxxxx
Biotech Capital, L.P., its general partner
By:
Xxxxx
Biotech Capital (GP), LLC,
its
general partner
By:
/s/
Xxxxx Xxxxx
Name:
Xxxxx Xxxxx, Ph.D.
Title:
Managing Member
XXXXX
BROTHERS LIFE SCIENCES, L.P.
By:
Xxxxx
Brothers Life Sciences Capital, L.P.
its
general partner
By:
Xxxxx
Brothers Life Sciences Capital (GP), LLC
its
general partner
By:
/s/
Xxxxx Xxxxx
Name:
Xxxxx Xxxxx, Ph.D.
Title:
Managing Member
14159,
L.P.
By:
14159
Capital, L.P., its general partner
By:
14159
Capital (GP), LLC, its general partner
By:
/s/
Xxxxx Xxxxx
Name:
Xxxxx Xxxxx, Ph.D.
Title:
Managing Member
XXXXX
BROS. INVESTMENTS II, L.P.
By:
Xxxxx
Bros. Capital, L.P.,
its
general partner
By:
Xxxxx
Bros. Capital (GP), LLC,
its
general partner
By:
/s/
Xxxxx Xxxxx
Name:
Xxxxx Xxxxx, Ph.D.
Title:
Managing Member
|
Address
for Notice:
000
Xxxxxxx Xxxxxx
00xx
Xxxxx
Xxx
Xxxx, XX 00000
|
SCHEDULE
A
LENDERS
|
Lender
Name and Address
|
Amount
of Prior Notes
|
Additional
Purchase Price
|
Amount
of New Notes
(Combined
Principal Balance)
|
|
Xxxxx
Xxxxx Investments, L.P.
000 Xxxxxxx Xxxxxx, 00xx Xxxxx Xxx Xxxx, XX 00000 |
$20,781.11
|
--
|
$20,781.11
|
|
Xxxxx
Tisch Investments, L.P.
000 Xxxxxxx Xxxxxx, 00xx Xxxxx Xxx Xxxx, XX 00000 |
$19,177.40
|
--
|
$19,177.40
|
|
Xxxxx
Biotech Fund I, L.P.
000
Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000 |
$402,372.05
|
$446,428.00
|
$848,800.05
|
|
Xxxxx
Biotech Fund I, L.P.
000
Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000 |
$359,715.41
|
$358,316.00
|
$718,031.41
|
|
Xxxxx
Brothers Life Sciences, L.P.
000 Xxxxxxx Xxxxxx, 00xx Xxxxx Xxx Xxxx, XX 00000 |
$2,128,162.10
|
$2,122,374.00
|
$4,250536.10
|
|
00000,
X.X.
000
Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000 |
$69,791.94
|
$67,474.00
|
$137,265.94
|
|
Xxxxx
Bros. Investments II, L.P.
000
Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000 |
--
|
$5,408.00
|
$5,408.00
|
|
Total:
|
$
3,000,000.01
|
$
3,000,000.00
|
$
6,000,000.01
|
EXHIBIT
A
FORM
OF NEW NOTE
THIS
NOTE
HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
“ACT”), OR APPLICABLE STATE SECURITIES LAWS. IT MAY NOT BE SOLD, OFFERED FOR
SALE, PLEDGED OR HYPOTHECATED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION
STATEMENT UNDER THE ACT AND APPLICABLE STATE SECURITIES LAWS OR EVIDENCE
REASONABLY SATISFACTORY TO THE BORROWER THAT SUCH REGISTRATION IS NOT REQUIRED.
THE SECURITIES ISSUED UPON SUCH CONVERSION MAY NOT BE SOLD, OFFERED FOR SALE,
PLEDGED, OR HYPOTHECATED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT
UNDER THE ACT OR APPLICABLE STATE SECURITIES LAWS OR EVIDENCE REASONABLY
SATISFACTORY TO THE BORROWER THAT SUCH REGISTRATION IS NOT
REQUIRED.
AMENDED
AND RESTATED
SENIOR
CONVERTIBLE SECURED PROMISSORY NOTE
| Parsippany, New Jersey | |||
| $__________ | June __, 2007 |
FOR
VALUE
RECEIVED, Alteon Inc., a Delaware corporation (the “Borrower”),
located at 0 Xxxxxx Xxxxx, Xxxxxxxxxx, XX 00000, hereby promises to pay to
_______________________ (the “Lender”),
located at ____________________________________________, or at such other place
as the Lender may from time to time reasonably designate, the principal sum
of
______________________ ($___________)1
(the
“Principal
Amount”)
in
lawful money of the United States, in immediately available funds, ON DEMAND,
on
or after July 31, 2007 (the “Maturity
Date”),
together with any additional amounts as may be required to be paid under Section
11 of this Note, unless the Principal Amount is earlier converted as set forth
herein.
1. This
Note
amends and restates in its entirety that certain Senior Convertible Secured
Promissory Note issued by the Borrower to the Lender, effective January 11,
2007
(the “Prior
Note”),
in
the principal amount of ______________________ ($___________)2
(the
“Prior
Principal”).
The
Prior Note is amended and restated hereby to increase the principal amount
thereunder by an additional amount equal to the Prior Principal (“Additional
Principal”)
and to
effect certain other changes. This Note shall become effective only upon the
surrender of the Prior Note by the Lender for cancellation by the Borrower
or
execution of an affidavit of lost note in form and substance reasonably
satisfactory to the Borrower.
___________________________
1
Insert
appropriate percentage of $6 million.
2
Insert
appropriate percentage of $3 million.
2. Interest
shall accrue at a rate per annum equal to eight percent (8%) with respect to
(a)
the Prior Principal, from the date of January 11, 2007 until maturity (whether
by demand on or after the Maturity Date or by acceleration), and (b) the
Additional Principal, from the date hereof until maturity (whether by demand
on
or after the Maturity Date or by acceleration). Such interest shall be payable
at maturity or upon conversion. In no event shall the rate of interest hereunder
exceed the maximum interest rate permitted by applicable law.
3. This
Note
is one of several notes (the “Notes”)
in the
aggregate principal amount of up to $6,000,000 and of like tenor issued by
the
Borrower to the Lender and others (together, the “Lenders”)
pursuant to the terms of that certain Convertible Note and Warrant Purchase
Agreement, dated January 11, 2007, as amended (the “Bridge
Loan Agreement”).
By
acceptance of this Note, the Lender hereby agrees that each of the Notes issued
pursuant to the Bridge Loan Agreement shall rank equally and ratably without
priority over one another, and the Borrower agrees that, except as expressly
provided by the terms of the Notes, none of the Notes shall be paid, in whole
or
in part, unless an equivalent, pro rata payment is made with respect to all
other Notes.
4. As
security for the payment, performance and observance of the obligations set
forth in the Prior Note, the Borrower has previously granted a security interest
in its assets to the collateral agent named in, and pursuant to, that certain
Security & Guaranty Agreement, dated January 11, 2007 (the “Security
Agreement”)
and
that certain Intellectual Property Security Agreement, dated January 11, 2007
(the “IP Security
Agreement”
and
together with the Security Agreement, the “Security
Agreements”).
Borrower hereby acknowledges and agrees that any reference to Notes in the
Security Agreements shall be deemed to include this Note and that the
performance and observance of the obligations set forth in this Note by the
Borrower shall be deemed to be “Obligations” for purposes of the Security
Agreements.
5.
If
this
Note has not previously been converted, the Borrower may repay the principal
balance of this Note plus accrued but unpaid interest, together with any
additional amounts as may be required to be paid under Section 11 of this Note,
without penalty, at any time prior to the Maturity Date.
6. In
the
event that any principal or accrued interest on this Note remains outstanding
at
such time as the Borrower consummates a Preferred Financing (as defined below),
the entire principal balance then outstanding plus accrued but unpaid interest
shall automatically be converted into the securities of the Borrower issued
in a
Preferred Financing at a conversion rate equal to the price per security at
which the securities are issued in a Preferred Financing and with the same
terms
and conditions as such securities (hereinafter, an “Automatic
Conversion”).
The
Automatic Conversion will be effective upon the consummation of a Preferred
Financing, and the Borrower shall be relieved of any continued obligation to
repay the principal or unpaid interest on this Note thereafter. The Borrower
shall promptly deliver to the Lender written notification of the consummation
of
a Preferred Financing, and the Lender shall deliver the original of this Note
to
the Borrower for cancellation. The Borrower shall have no obligation to deliver
securities issuable upon a Preferred Financing until such time as it receives
the original of this Note or an affidavit of lost security from the Lender.
For
purposes of this Note, “Preferred
Financing”
shall
mean that certain contemplated transaction or series of transactions prior
to
the Maturity Date in which the Borrower sells shares of its preferred capital
stock and warrants to purchase preferred stock to the Lenders and other
investors as the Lenders may approve, in an amount up to $25,000,000, as more
particularly described in that certain Series B Preferred Stock and Warrant
Purchase Agreement dated as of April 5, 2007 by and among the Borrower, the
Lenders and certain other parties.
7. In
the
event that any principal or accrued interest on this Note remains outstanding
at
such time as Borrower consummates an Equity Financing (as defined below), the
principal balance then outstanding plus accrued but unpaid interest may be
converted, in whole or in part, at the election of the Lender, into the
securities of the Borrower issued in the Equity Financing at a conversion rate
equal to the price per security at which the securities are issued in the Equity
Financing (hereinafter, a “Voluntary
Conversion”).
The
Borrower shall promptly deliver to the Lender written notification of the
consummation of an Equity Financing, and the Lender shall have ten (10) business
days from the date of such notice to elect, by written notice to the Borrower,
to convert the Note. In the event the Lender elects to convert the Note into
securities issued in the Equity Financing, the Lender shall deliver the original
of this Note to the Borrower for cancellation together with the election notice.
The Borrower shall have no obligation to deliver securities issuable upon a
Voluntary Conversion until such time as it receives the original of this Note
or
an affidavit of lost security from the Lender. If this Note is converted in
part, the Borrower shall reissue a Note in substantially the same form to the
Lender reflecting the remaining principal balance.
For
purposes of this Note, “Equity
Financing”
shall
mean a transaction or series of transactions in which the Borrower sells its
securities which occurs after the date hereof and prior to the Maturity Date
and
which does not constitute a Preferred Financing.
8. In
the
event that any principal or accrued interest on this Note remains outstanding
prior to the Maturity Date and no Automatic Conversion or Voluntary Conversion
has taken place, the principal balance then outstanding plus accrued but unpaid
interest may be converted, in whole or in part, at the election of the Lender,
into shares of the Borrower’s common stock, $0.01 per value per share
(“Common
Stock”),
at a
conversion rate equal to the closing price on the American Stock Exchange or
the
Nasdaq Stock Market (as reported by Bloomberg L.P. at 4:15 PM New York time))
of
a share of the Borrower’s Common Stock on the date hereof (hereinafter, a
“Voluntary
Common Stock Conversion”).
Upon
election to consummate a Voluntary Common Stock Conversion, the Lender shall
promptly deliver to the Borrower written notification of such election. The
Lender shall also deliver the original of this Note to the Borrower for
cancellation together with the election notice. The Borrower shall have no
obligation to deliver securities issuable upon a Voluntary Common Stock
Conversion until such time as it receives the original of this Note or an
affidavit of lost security from the Lender. If this Note is converted in part,
the Borrower shall reissue a Note in substantially the same form to the Lender
reflecting the remaining principal balance.
9. No
fractional shares of capital stock of the Borrower shall be issued upon
conversion of this Note. In lieu of any fractional shares to which the holder
would otherwise be entitled, the Borrower shall pay cash equal to such fraction
multiplied by the applicable conversion price.
10. Unless
and until conversion of this Note as aforesaid, the Lender shall not by virtue
of this Note have or exercise any rights by virtue hereof as a stockholder
of
the Borrower.
11. If
no
Preferred Financing is consummated on or prior to the Maturity Date, and the
Lender has not elected a Voluntary Conversion or Voluntary Common Stock
Conversion, then (i) the entire principal amount of this Note, together with
all
accrued but unpaid interest, shall, at the election of the Lender, ON DEMAND,
be
due and payable on or after such date, (ii) the Borrower shall pay the Lender
an
additional sum of [_______________] ($___________)3
and
(iii) the Borrower agrees to pay the Lender an amount equal to thirty percent
(30%) of the Gross Proceeds (defined below) to the Borrower of all Financing
Transactions (defined below), Sale Transactions (defined below) and Product
Candidate Transactions (defined below) completed by the Borrower on or before
June 30, 2009, subject to a maximum additional payment under this Section
11(iii) of [_______________] ($___________)4 .
“Gross
Proceeds”
shall
mean (a) in the case of a Financing Transaction the amount paid by the
purchasers of the securities in the transaction, irrespective of underwriting
discounts, private placement commissions or other fees; (b) in the case of
a
Sale Transaction the sum of (i) the aggregate fair market value of any
securities issued and any other non-cash consideration delivered (including,
without limitation, any joint venture or other revenue interest delivered to,
or
retained by, the Borrower), and any cash consideration paid to the Borrower
or
its security holders (including, without limitation, holders of options,
warrants, convertible securities and preferred securities) in connection with
the Sale Transaction, and (ii) the amount of all indebtedness and preferred
stock of the Borrower or any subsidiary thereof, which is assumed or acquired
by
the purchaser or retired or defeased in connection with the Sale Transaction;
and (c) in the case of a Product Candidate Transaction the aggregate fair market
value of any securities issued and any other non-cash consideration delivered
(including, without limitation, any joint venture interest delivered to, or
retained by, the Borrower), and any cash consideration paid to the Borrower
in
connection with the Product Candidate Transaction. “Financing
Transaction”
shall
mean any equity financing by or on behalf of the Borrower or its subsidiaries,
including, but not limited to, any sale of common stock, preferred stock,
warrants, convertible debt or other equity linked security. “Sale
Transaction”
shall
mean any transaction or series of transactions in which one or more persons
or
entities acquires directly or indirectly a majority of the stock or all or
substantially all of the assets, revenues, income or business of the Borrower
or
any subsidiary or otherwise gains control of the Borrower or any subsidiary,
including any combination of the businesses regardless of the structure or
form
of the transaction. “Product
Candidate Transaction” shall
mean any licensing, development, commercialization, distribution, marketing,
co-marketing, collaboration, partnering, sale, divestiture or similar agreement
relating to the transfer of intellectual property or other rights or assets
relating to the Borrower’s current or future product candidates.
______________________________________
3
Insert
appropriate percentage of $6 million.
4
Insert
appropriate percentage of $8 million.
12. If
(a)
the Borrower fails to make any payment under this Note; (b) the Borrower
breaches any representation, warranty, covenant or agreement in the Bridge
Loan
Agreement or any other Transaction Document (as defined in the Bridge Loan
Agreement); (c) the Borrower agrees, consents or acquiesces to any amendment,
supplement or other modification to, or termination of, any of any Material
License Agreement or otherwise breaches any representation, warranty, covenant
or agreement in any Material License Agreement that would give the other party
thereto the right to terminate such Material License Agreement, or takes any
other action or fails to take any action that may result in the early
termination of a Material License Agreement; (d) the Borrower fails to pay
when
due any Indebtedness (as defined in the Bridge Loan Agreement) of the Borrower
in an aggregate amount of Five Hundred Thousand Dollars ($500,000) or greater
at
any one time; (e) a final judgment or judgments for the payment of money
aggregating in excess of Five Hundred Thousand Dollars ($500,000) are rendered
against the Borrower and which judgments are not, within sixty (60) days after
the entry thereof, bonded, discharged or stayed pending appeal, or are not
discharged within sixty (60) days after the expiration of such stay; (f) the
Borrower shall be dissolved, become insolvent (however defined or evidenced),
make an assignment for the benefit of creditors or make or send a notice of
intended bulk transfer; (g) any petition or proceeding for any relief under
any
bankruptcy, reorganization, arrangement, insolvency, readjustment of debt,
receivership, liquidation or dissolution law or statute now or hereinafter
in
effect (whether at law or in equity) is filed or commenced by the Borrower;
or
(h) any trustee or receiver is appointed for the Borrower or any property of
the
Borrower, a meeting of creditors is convened or a committee of creditors is
appointed for, or any petition or proceeding for any relief under any
bankruptcy, reorganization, arrangement, insolvency, readjustment of debt,
receivership, liquidation or dissolution law or statute now or hereinafter
in
effect (whether at law or in equity) is filed or commenced against the Borrower,
which proceeding is not dismissed within one hundred twenty (120) days (each
of
the foregoing, an “Event
of Default”),
then
and in any such event and at any time thereafter, the Lender may, at its option,
declare all amounts owing under Section 11 of this Note to be due and payable,
whereupon the maturity of the unpaid balance hereof shall be accelerated and
the
principal, together with all unpaid interest accrued thereon, shall forthwith
become due and payable; provided,
that,
if any petition or proceeding for any relief under any bankruptcy,
reorganization, arrangement, insolvency, readjustment or debt, receivership,
liquidation or dissolution law or statute now or hereinafter in effect (whether
at law or in equity) is filed or commenced by the Borrower, all amounts owing
under this Note shall be, without notice, declaration or any action by the
Lender, accelerated, and immediately due and payable.
13. The
Borrower hereby waives diligence, demand, presentment, protest and notice of
any
kind, and assents to extensions of time of payment, release, surrender or
substitution or security, or forbearance or other indulgence, without
notice.
14. No
act,
omission or delay by the Lender or course of dealing between the Lender and
the
Borrower shall constitute a waiver of the rights and remedies of the Lender
hereunder. No single or partial waiver by the Lender of any Event of Default
or
right or remedy which it may have shall operate as a waiver of any other Event
of Default, right or remedy or of the same Event of Default, right or remedy
on
a future occasion.
15. Unless
otherwise provided herein or in the Bridge Loan Agreement, any notice or other
communication herein required or permitted to be given shall be in writing
and
may be personally served, telecopied, telexed or sent by United States mail,
to
Borrower or Lender, as the case may be, addressed to it at the respective
address set forth on the first page of this Note and in the Bridge Loan
Agreement, or at such other address as shall be designated by Borrower or
Lender, as the case may be, in a written notice to the other party complying
as
to delivery with the terms of this Section 15. All such notices and other
communications shall be deemed to have been given when (i) delivered by hand,
(ii) sent
by
overnight courier, with receipt acknowledgment, or (iii) sent by certified
mail, return receipt requested, postage prepaid.
16. This
Note
shall be governed by and construed in accordance with the internal law of the
State of New York (without giving effect to the conflict of laws principles
thereof). Any legal action or proceeding with respect to this Note shall be
brought in the courts of the State of New York or of the United States of
America for the Southern District of New York, and, by execution and delivery
of
this Note, the Borrower hereby accepts for itself and in respect of its
property, generally and unconditionally, the jurisdiction of the aforesaid
courts.
17. No
provision hereof shall be modified, altered or limited except by a written
instrument expressly executed by the Borrower and Lenders holding a majority
in
principal amount of the then outstanding Notes.
18. In
the
event that any court of competent jurisdiction shall determine that any
provision, or any portion thereof, contained in this Note shall be unreasonable
or unenforceable in any respect, then such provision shall be deemed limited
to
the extent that such court deems it reasonable and enforceable, and as so
limited shall remain in full force and effect. In the event that such court
shall deem any such provision, or portion thereof, wholly unenforceable, the
remaining provisions of this Note shall nevertheless remain in full force and
effect.
19. This
Note
and all obligations evidenced hereby shall be binding upon the heirs, executors,
administrators, successors and assigns of the Borrower and shall, together
with
the rights and remedies of the Lender hereunder, inure to the benefit of the
Lender, its successors, endorsees and permitted assigns.
[REMAINDER
OF PAGE INTENTIONALLY LEFT BLANK]
In
witness whereof, the Borrower has caused this Note to be executed by its duly
elected officer as of the date first set forth above.
| ALTEON INC. | ||
| |
|
|
| By: | ||
|
Xxxx Xxxxxxxxx |
||
| President and Chief Executive Officer | ||
