EXHIBIT 4.11
THIS NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "ACT"), OR THE SECURITIES LAWS OF ANY STATE AND MAY NOT BE SOLD OR
OTHERWISE TRANSFERRED IN THE ABSENCE OF EFFECTIVE REGISTRATION STATEMENTS UNDER
SUCH ACT AND STATE SECURITIES LAWS, OR AN OPINION OF COUNSEL REASONABLY
ACCEPTABLE TO THE DEBTOR THAT SUCH REGISTRATION IS NOT REQUIRED.
DYNAGEN, INC.
SUBORDINATED NOTE
$500,000.00 JUNE 18, 1997
FOR VALUE RECEIVED, DYNAGEN, INC., a Delaware corporation (the
"DEBTOR"), hereby promises to pay on or before September 30, 1997, to the order
of XXXXXX & CO. AG, a Swiss corporation acting as agent for certain non-U.S.
persons (the "LENDER"), the principal sum of FIVE HUNDRED THOUSAND DOLLARS
($500,000.00) or such lesser principal amount then outstanding, together with
all accrued and unpaid interest thereon. Interest on the principal amount of
this Note will accrue from and including the date hereof until and including the
date such principal amount is paid, at a rate equal to seven percent (7.0%) per
annum. Any interest due but remaining unpaid after payment is due shall bear
interest at the rate equal to 10.0% per annum. Principal and interest shall be
payable in lawful money of the United States of America, in immediately
available funds, at the principal office of the Lender or at such other place as
the legal holder may designate from time to time in writing to the Debtor.
Interest shall be computed on the basis of a 360-day year and a 30-day month.
The principal and interest on this Note are secured by a certain Pledge
and Security Agreement among the Lender, the Debtor and each of Xx. Xxxx Xxxx
and Xxxxxxxxx Xxxxxxx as pledgors of certain shares of Common Stock of the
Debtor (the "Pledge Agreement").
This Note is being issued in connection with a certain Bridge Financing
Purchase Agreement dated the date hereof. The outstanding balance of this Note
shall be immediately due and payable upon an Event of Default as defined in such
Bridge Financing Purchase Agreement. The Lender's sole and limited recourse in
the Event of a Default, as defined in the Bridge Financing Purchase Agreement,
is as to the Collateral as set forth in the Pledge Agreement. The Debtor may
prepay this Note at any time prior to demand for payment, acceleration or
maturity.
The Lender and any holder of this Note acknowledge and agree that the
principal and interest on this Note are unsecured by the Debtor and the rights
and obligations represented by this Note are subordinated in right of payment to
secured indebtedness of the Debtor for money borrowed from commercial bank
lenders or other institutional lenders or other holders of Senior Debt, whether
now existing or hereafter arising, as further defined in the Bridge Financing
Purchase Agreement.
The Debtor agrees to pay all costs, charges and expenses incurred by
the Lender (including, without limitation, costs of collection, court costs, and
reasonable attorneys' fees and disbursements) in connection with the successful
enforcement of the Lender's rights under this Note (all such costs, charges and
expenses being herein referred to as "COSTS"). The Debtor agrees that any delay
on the part of the Lender in exercising any rights hereunder will not operate as
a waiver of such rights, and further agrees
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that any payments received hereunder will be applied first to Costs, then to
interest and the balance to principal. The Lender shall not by any act, delay,
omission, or otherwise be deemed to waive any of its rights or remedies, and no
waiver of any kind shall be valid unless in writing and signed by the Lender.
Presentment for payment, demand, protest, notice of protest and notice of
nonpayment are hereby waived. Irrespective of any claim, defense, credit or
offset Debtor may have against Lender, these shall not discharge or modify
Debtor's absolute, independent obligation to repay Lender any sums advanced to
Debtor pursuant to this Note.
This Note applies to, inures to the benefit of, and binds the
successors and assigns of the parties hereto. This Note is made under and shall
be governed by and construed in accordance with the internal laws of, and
enforced by the courts located within, the Commonwealth of Massachusetts.
IN WITNESS WHEREOF, the Debtor has executed this Note as an instrument
under seal as of the date first written above.
DYNAGEN, INC.
By: /s/ Xxxxxxxxx X. Xxxxxxx
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Title: Executive Vice President
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ATTEST: /s/ Xxxxxx X. Xxxxxxxx
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Title: Controller
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