EXHIBIT 4.2
THE TRANSFER OF THIS NOTE IS RESTRICTED BY AND PURSUANT TO A NOTE
PURCHASE AGREEMENT DATED AS OF DECEMBER 18, 1997, A COPY OF WHICH IS ON
FILE AT THE OFFICES OF THE COMPANY.
THIS NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933 OR
THE SECURITIES LAWS OF ANY STATE AND MAY NOT BE SOLD OR OTHERWISE
DISPOSED OF EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT
UNDER SUCH ACT AND APPLICABLE STATE SECURITIES LAWS OR AN APPLICABLE
EXEMPTION TO THE REGISTRATION REQUIREMENTS OF SUCH ACT OR SUCH LAWS.
Q-MED, INC.
8.00% CONVERTIBLE SUBORDINATED NOTE DUE DECEMBER 18, 2002
No. 1
December 18, 1997
FOR VALUE RECEIVED, the undersigned, Q-MED, INC. (herein
called the "Company"), a corporation duly organized and existing under the laws
of the State of Delaware, hereby promises to pay to _____________________ (the
"Purchaser"), or its registered assigns on December 18, 2002 (the "Maturity
Date") the sum of the Principal Amount (as defined below), plus accrued and
unpaid interest on the Principal Amount of this Note as of such date. The
outstanding principal amount of this Note shall initially be the sum of
________________ ($_______________) and shall be increased on each anniversary
of the date hereof by the interest accrued but unpaid under this Note as of such
date (the "Principal Amount"). Interest will accrue on the unpaid Principal
Amount, at the rate of 8% per annum (computed on the basis of a 360-day year of
twelve 30-day months) until the Maturity Date. If any Event of Default shall
have occurred, to the extent permitted by law, from and including the date of
such Event of Default to, but not including, the date such Event of Default is
cured or waived, interest will accrue at the rate of 10% per annum (computed on
the basis of a 360-day year of twelve 30-day months). If the date on which any
such payment is required to be made pursuant to the provisions of this Note
occurs on a day other than a Business Day, such payment shall be due and payable
on the next succeeding Business Day.
Payments of principal of, and interest and premium on, this
Note, are to be made in lawful money of the United States of America, or at the
Purchaser's option, in the number of shares of Common Stock determined by
dividing the payment to be made
by the Conversion Price then in effect, at the address specified by such holder
for such purpose in Section 6.1 to the Note Purchase Agreement (as defined
below).
This Note is being issued pursuant to a Note Purchase
Agreement, dated as of December __, 1997 (the "Note Purchase Agreement"),
between the Company and the Purchaser. Defined terms used herein which are
defined in the Note Purchase Agreement shall have the same meaning as such terms
have in the Note Purchase Agreement. This Note is entitled to the benefits of,
and is subject to the terms contained in, the Note Purchase Agreement. The
provisions of the Note Purchase Agreement are hereby incorporated in this Note
to the same extent as if set forth at length herein.
The Company may deem and treat the person in whose name this
Note is registered pursuant to Section 5 of the Note Purchase Agreement as the
holder and owner hereof for the purpose of receiving payments and for all other
purposes whatsoever, notwithstanding any notations of ownership or transfer
hereon and notwithstanding that this Note is overdue, and the Company shall not
be affected by any notice to the contrary until presentation of this Note for
registration of transfer as provided in Section 5 of the Agreement. This Note
may be transferred or exchanged and, if lost, stolen, damaged or destroyed, this
Note may be replaced, only in the manner and upon the conditions set forth in
the Note Purchase Agreement.
This Note is subject to redemption, in whole but not in part,
only under certain circumstances, and to the extent provided, in the Note
Purchase Agreement.
In case an Event of Default shall happen and be continuing,
the principal amount of this Note, the premium, and all accrued interest may
become or be declared due and payable only in the manner and with the effect
provided in the Note Purchase Agreement.
In certain circumstances involving the occurrence of a Change
in Control, the holder of this Note has the right to require the Company to
repurchase the Note at the price specified in the Note Purchase Agreement.
Subject to and upon compliance with the provisions of the Note
Purchase Agreement, the holder of this Note is entitled to convert this Note
into fully paid and non-assessable shares of Common Stock of the Company at the
conversion price, subject to adjustment, specified in the Note Purchase
Agreement.
The indebtedness evidenced by this Note and the payment of the
principal of (and premium, if any) and interest on, and other obligations in
respect of, this Note, to the extent and in the manner provided in the Note
Purchase Agreement, are subordinate and subject in right of payment to the prior
payment in full in cash of all Senior Indebtedness, and this Note is issued
subject to the provisions of the Note Purchase
2
Agreement with respect thereto. The holder of this Note, by accepting the same,
agrees to and shall be bound by such provisions.
No reference herein and no provision of this Note or of the
Note Purchase Agreement shall alter or impair the obligation of the Company,
which is absolute and unconditional, to pay the principal of (and premium, if
any) and interest on this Note at the times, place and rate, and in the coin or
currency, as prescribed herein and in the Note Purchase Agreement, or to convert
this Note as provided in the Note Purchase Agreement.
No service charge shall be made of any registration of
transfer, exchange or conversion, but the Company may require payment of a sum
sufficient to cover any tax or other governmental charge payable in connection
therewith.
This Note shall be governed by and construed and enforced in
accordance with the laws of the State of New York.
Q-MED, INC.
By /s/ Xxxxxxx X. Xxx
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Name: Xxxxxxx X. Xxx
Title: President
