LOAN AGREEMENT
This Agreement is made and entered into this 7th day of
March, 1997 by and between BIOTECH MANUFACTURING LTD.
(hereinafter referred to as "BML"), a wholly-owned subsidiary of
Biogen, Inc. ("BIOGEN"), located at Xx. Xxxx'x Xxxx, Xxx Xxxxxx,
Xx. Xxxxxx, Xxxxxx XX00X, Channel Islands, and CV THERAPEUTICS,
INC., a Delaware corporation, located at 0000 Xxxxxx Xxxxx, Xxxx
Xxxx, XX 00000 (hereinafter referred to as "CVT").
WHEREAS, BML is a biopharmaceutical company which develops,
manufactures, markets and sells pharmaceutical products for human
healthcare; and
WHEREAS, CVT is the owner and/or exclusive licensee of
certain technology, patent rights and other proprietary know-how
related to CVT-124 and related molecules as hereinafter defined;
and
WHEREAS, CVT is granting an exclusive right and license in
and to such technology, patent rights and proprietary know-how in
the TERRITORY pursuant to a Research Collaboration and License
Agreement of even date herewith between CVT and BML (the "BML
AGREEMENT"); and
WHEREAS, CVT is granting an exclusive right and license in
and to such technology, patent rights and proprietary know-how
outside the TERRITORY pursuant to a Research Collaboration and
License Agreement of even date herewith between CVT and BIOGEN
(the "BIOGEN AGREEMENT").
NOW, THEREFORE, in consideration of the mutual promises and
other good and valuable consideration, the parties agree as
follows:
SECTION 1 - Definitions.
The terms used in this Agreement have the following meaning:
1.1 The term "AFFILIATE" as applied to either party shall mean
any company or other legal entity other than the party in
question, in whatever country organized, controlling, controlled
by or under common control with that party. The term "control"
means ownership or control, directly or indirectly, of at least
fifty percent (50%) of the outstanding stock or voting rights or
the right to elect or appoint a majority of the directors.
1.2 The term "first AGREEMENT YEAR" shall mean the twelve month
period commencing on the EFFECTIVE DATE. With respect to any
year after the first AGREEMENT
YEAR, the term "AGREEMENT YEAR" shall mean the twelve month period
commencing upon an anniversary of the Effective Date.
1.3 The term "CVT-124" shall mean the S-enantiomer of
epoxy-norbornyl xanthine, as defined as CVT-124 in the IND filed
on September 20, 1995 and as further described in U.S. Patent
Application Serial No. 08/330,640 filed on October 28, 1994.
1.4 The term "EFFECTIVE DATE" shall mean March 10, 1997.
1.5 The term "FIRST COMMERCIAL SALE" shall mean the initial
transfer by BML or any of its AFFILIATES or SUBLICENSEES of a
PRODUCT to a THIRD PARTY in exchange for consideration, following
marketing approval by the appropriate governmental agency for the
country in which the transfer is made.
1.6 The term "TERRITORY" shall mean all countries and
territories of the world except: the United States and all other
countries and territories in North America and South America.
1.7 The use herein of the plural shall include the singular, and
the use of the masculine shall include the feminine.
SECTION 2 - Loan Commitment.
BML hereby commits to the following:
2.1 (a) BML shall, subject to the terms set forth below, make
funds available to CVT for general corporate purposes in the form
of a loan or loans to CVT in an amount not to exceed TWELVE
MILLION AND NO/100 DOLLARS ($12,000,000.00) (the "Loan").
Immediately upon the EFFECTIVE DATE, CVT may draw down on the
Loan an amount not to exceed THREE MILLION AND N0/100 DOLLARS
($3,000,000.00) (the "Initial Installment"). Unless the BML
AGREEMENT has been terminated for any reason, CVT may, in such
amounts and at such times as CVT, in it sole discretion, may
determine, draw down the remaining balance of the Loan (the "Loan
Remainder) over a period of two (2) Calendar Years (as defined
below) following the receipt of the Phase II Performance
Assessment Study milestone payment (the "Milestone Payment")
pursuant to the BIOGEN AGREEMENT, provided however, that the
total draw down amount shall not exceed FOUR MILLION FIVE HUNDRED
THOUSAND AND NO/100 DOLLARS ($4,500,000.00) in any Calendar Year.
For the purposes of this section, a "Calendar Year" commences on
the date of the Milestone Payment or an anniversary thereof and
terminates twelve months later. BML shall not be obligated to
advance any funds under the Loan Remainder at any time during
which (i) an Event of Default has occurred and is continuing
under the Note (defined below); (ii) the total cash reserves of
CVT, as shown on its most recent balance sheet before the
particular draw, are less than $5 million during the first
AGREEMENT YEAR, $7.5 million during the second AGREEMENT YEAR, or
$10 million thereafter; or (iii) any proceeding, voluntary or
involuntary, in bankruptcy or insolvency, is pending against CVT,
or a receiver is operating CVT with or without the consent of
CVT. BML's obligation to advance any funds under the Loan
Remainder shall terminate upon the earlier to occur of (i) the
last day of the second Calendar Year or (ii) termination or
expiration of this Agreement.
(b) On the EFFECTIVE DATE CVT shall execute and deliver to BML
an unsecured note, substantially in the form set forth in
Appendix A attached hereto and made a part hereof (the "Note"),
evidencing the Loan. CVT hereby covenants not to incur or
maintain any additional pari passu or senior indebtedness of any
kind, other than leasehold improvements or equipment lease
financing in an aggregate amount not exceeding $10 million
(including any such debt outstanding as of the Effective Date),
while any amount due under the Note remains unpaid. Any junior
indebtedness permitted to be incurred pursuant to the previous
sentence shall be subordinated to the Note pursuant to a
subordination agreement in form and substance reasonably
satisfactory to BML. The Note shall be subordinated to all debt
of CVT existing as of the date hereof and may be prepaid by CVT
at any time without penalty, in cash or, in the case of the Loan
Remainder, in CVT Common Stock, registered for resale, priced at
its then Fair Market Value (as defined in Section 2.1(i) below),
subject to the provisions of subsections (g) and (i) of this
Section 2.1.
(c) The Note shall bear interest on the outstanding principal
amount thereof at a rate per annum equal to Prime (defined below)
plus one (1%) percent. Such interest shall be payable in cash
annually commencing on the one year anniversary of the date of
execution of the Note and continuing on each anniversary date
until the Note is paid in full, regardless of the repayment terms
applicable to the principal amount of the Note as specified in
this Section 2.1. The applicable rate of interest for the Note
shall be adjusted semi-annually according to the Prime rate as
announced on each six-month anniversary date of the execution of
the Note.
(d) Except as otherwise provided in subsection (f) hereof, CVT
shall repay the principal amount owed under the Initial
Installment in cash in sixty (60) equal monthly
installments on the first day of each month commencing on the third
anniversary of the Effective Date and continuing on the same day of each
succeeding month such that the entire principal amount due under
the Initial Installment shall be paid in full by the eighth
anniversary of the Effective Date.
(e) Except as otherwise provided in this subsection (e) or in
subsection (f) hereof, CVT shall repay the principal amount owed
under the Loan Remainder solely out of royalties owed from BIOGEN
and BML to CVT according to the following schedule:
Beginning with the date that is eighteen (18)
months after the FIRST COMMERCIAL SALE of
PRODUCT, BML's and BIOGEN's royalty payments
to CVT (as provided in Section 10.2(a) of the
BML AGREEMENT and Section 10.2(a) of the
BIOGEN AGREEMENT, respectively) shall be
reduced by thirty-three and one-third (33.3%)
percent until the principal balance of the
Loan Remainder is paid in full.
In the alternative, CVT may, at its option, elect to repay the
principal amount owed under the Loan Remainder in CVT Common
Stock, registered for resale, priced at its then Fair Market
Value, subject to the provisions of subsections (g) and (i) of
this Section 2.1.
(f) Notwithstanding the provisions of subsections (d) and (e)
hereof, if this Agreement is terminated for any reason, CVT shall
repay the principal and interest owed under the Initial
Installment and the Loan Remainder in 36 monthly installments
commencing on the fifth (5th) business day following the date the
Agreement is terminated and continuing on the same day of each
succeeding month. Repayment of the Initial Installment shall be
made in cash; repayment of the Loan Remainder shall be made in
cash or, at CVT's option, in CVT Common Stock, registered for
re-sale, priced at its then Fair Market Value, subject to the
provisions of subparagraphs (g) and (i) of this Section 2.1.
(g) In the event CVT elects pursuant to subsection (b), (e) or
(f) hereof to repay all or a portion of the Loan Remainder in CVT
Common Stock, CVT shall give BML at least thirty (30) days
advance written notice of the date and amount of any repayment to
be made in CVT Common Stock, and include in such notice a
calculation of the percentage of CVT's total shares of Common
Stock outstanding that would be held by BML and its AFFILIATES
after the issuance of such shares (assuming an issue price equal
to the closing price of CVT Common Stock on the day prior to such
notice). Such notice shall irrevocably bind CVT to make such
payment in the amount and on the date indicated, subject only to
the following provisos: (i) CVT
shall have the right to extend the closing date by up to an additional
thirty (30) days in order to complete registration of the shares, and
(ii) if receipt of such Common Stock would cause BML's and its AFFILIATES'
holdings in CVT to exceed 19.9% of CVTs total shares of Common Stock
outstanding after the issuance of such shares to BML, BML may
notify CVT that it will not accept repayment in CVT Common Stock
to the extent of such excess. Within ten (10) days of receipt of
such notification, CVT and BML shall meet to negotiate in good
faith to arrive at a mutually acceptable alternative payment
arrangement. If the parties are unable to agree on such an
alternative payment arrangement within thirty (30) days of CVT's
receipt of BML's notification, then the excess of the Loan
Remainder shall be repayable in sixty (60) equal monthly
installments, commencing on the expiration of such thirty (30)
day negotiation period and continuing on the same day of each
succeeding, month. Notwithstanding the foregoing, in order to
insure for CVT the benefits of the transactions contemplated in
this Agreement and the Common Stock Purchase Agreement between
the parties of even date herewith (the "Stock Purchase
Agreement"), to the extent that BML has acquired Voting
Securities (as defined in the Stock Purchase Agreement) in
transactions other than those described in Article III of the
Stock Purchase Agreement and in this Agreement ("Other Voting
Securities") BML will sell such Other Voting Securities in order
to permit the repayment of the Loan Remainder in CVT Common Stock
as contemplated herein without violation of the 19.9% limit on
BML's and its AFFILIATES' ownership in CVT as set forth above.
(h) For purposes of subsection (c) of this Section 2.1, "Prime"
shall mean the floating rate of interest reported by the Wall
Street Journal as the prevailing base rate on corporate loans
posted by at least 75% of the 30 largest banks in the United
States. In the event that the Wall Street Journal ceases to
publish such a rate, or modifies its criteria for such rate, the
term "Prime" shall mean the generally prevailing base corporate
lending rate of large United States banks as determined in good
faith by BML.
(i) For purposes of subsection (b), (e) and (f) of this
Section 2.1, "Fair Market Value" of CVT Common Stock shall mean:
the average of the closing prices as reported by NASDAQ or, if
not traded on NASDAQ, by such other principal securities exchange
on which the shares are traded, as applicable, over the twenty
(20) trading days preceding the date on which payment is due (or
in the case of an extension pursuant to subsection (g)(i), the
date on which the payment is made). BML and CVT shall execute
and deliver at the time of issuance of
any shares in repayment of the Loan Remainder a stock purchase agreement
containing customary representations and warranties and indemnities in form
and substance similar to those set forth in the Stock Purchase
Agreement and the related Amended and Restated Investor Rights
Agreement, as amended, and customary provisions regarding
registration of the shares. Delivery of any shares of Common
Stock shall take place no later than five (5) days after the
repayment date.
(j) BML will not, nor will it permit any of its Affiliates (as
such term is used in Rule 12b-2 of the Securities Exchange Act of
1934 (the "Exchange Act"), such term to have such definition as
used throughout this Agreement) to, during the 30 consecutive
trading days prior to the date of any determination of the "Fair
Market Value" of CVT Common Stock hereunder, (a) acquire any
Voting Securities (as defined in Section 7.01 of the Stock
Purchase Agreement), (b) offer, pledge, sell, contract to sell,
sell any option or contract to purchase, purchase any option or
contract to sell, grant any option, right or warrant to purchase,
or otherwise transfer or dispose of, directly or indirectly, any
Voting Securities or (c) enter into any swap or similar agreement
that transfers, in whole or in part, the economic risk of
ownership of Voting Securities, whether any such transaction
described in clause (a), (b) or (c) above is to be settled by
delivery of Voting Securities or such other securities, in cash
or otherwise.
(i) Compliance with NASDAQ Stock Market Rule 4460(i)(1)(D).
Notwithstanding any provision of this Agreement to the contrary,
except as otherwise permitted by the rules of the NASDAQ Stock
Market, CVT shall in no event be obligated to issue, and BML
shall in no event be obligated to accept, in repayment of the
Loan Remainder, shares of CVT Common Stock to the extent that
such issuance would result in the number of shares of Common
Stock tendered hereunder and purchased pursuant to the Stock
Purchase Agreement constituting (i) the sale or issuance of 20%
or more of the Common Stock or (ii) the sale or issuance of
securities constituting 20% or more of voting power for less than
the greater of book or market value.
SECTION 3 - Representations and Warranties.
3.1 Each party represents and warrants to the other party that:
(i) it is free to enter into this Agreement; (ii) in so doing, it
will not violate any other agreement to which it is a party; and
(iii) it has taken all corporate action necessary to authorize
the execution and delivery of this Agreement and the performance
of its obligations under this Agreement.
3.2 Each party represents that it is not aware of any action,
suit, inquiry or investigation or any claim, demand or notice of
default which if adversely determined would affect the rights
granted under this Agreement.
SECTION 4 - Assignment; Successors.
4.1 This Agreement shall not be assignable by BML without the
prior written consent of CVT (which consent shall not be
unreasonably withheld), except that BML without the consent of
CVT may assign this Agreement or any of its rights and
obligations hereunder to an AFFILIATE or to an entity with which
BML shall merge or consolidate or to which BML shall sell or
assign all or substantially all of its assets. CVT may not
assign this Agreement or any rights hereunder without the express
written consent of BML. In the event CVT merges or consolidates
with, or sells or assigns all or substantially all of its assets
to, an entity, then, notwithstanding any contrary provision
hereof, (a) BML shall not be obligated to advance any further
sums pursuant hereto, and (b) all sums then outstanding under the
Note shall be repayable in cash in 36-monthly equal installments
commencing on the date of such event and continuing on the same
day of each succeeding month.
4.2 Subject to the limitations on assignment herein, this
Agreement shall be binding upon and inure to the benefit of said
successors in interest and assigns of CVT and BML.
SECTION 5 - Termination.
5.1 Except as otherwise provided herein, this Agreement shall
terminate on the earlier to occur of (i) the termination of the
BML AGREEMENT, or (ii) the last day of the second Calendar Year.
5.2 Either party to this Agreement may, upon giving notice of
termination, immediately terminate this Agreement upon receipt of
notice that the other party has become insolvent or has suspended
business in all material respects hereof, or has consented to an
involuntary petition purporting to be pursuant to any
reorganization or insolvency law of any jurisdiction, or has made
an assignment for the benefit of creditors or has applied for or
consented to the appointment of a receiver or trustee for a
substantial part of its property.
5.3 CVT's repayment obligation under the Note shall survive any
termination of this Agreement.
SECTION 6 - General Provisions.
6.1 This Agreement, the BML AGREEMENT, the BIOGEN AGREEMENT, and
the Stock Purchase Agreement between the parties of even date
herewith set forth the entire agreement and understanding between
the parties as to the subject matter hereof and supersede all
prior agreements in this respect. There shall be no amendments
or modifications to these Agreements, except by a written
document which is signed by both parties.
6.2 This Agreement shall be construed and enforced in accordance
with the laws of the State of Delaware, U.S.A. without reference
to its choice-of-law principles.
6.3 The headings in this Agreement have been inserted for the
convenience of reference only and are not intended to limit or
expand on the meaning of the language contained in the particular
or section or paragraph.
6.4 Any delay in enforcing a party's rights under this Agreement
or any waiver as to a particular default or other matter shall
not constitute a waiver of a party's right to the future
enforcement of its rights under this Agreement, excepting only as
to an expressed written and signed waiver as to a particular
matter for a particular period of time.
6.5 Notices. Any notices given pursuant to this Agreement shall
be in writing and shall be deemed delivered upon the earlier of
(i) when received at the address set forth below, or (ii) three
(3) business days after mailed by certified or registered mail
postage prepaid and properly addressed, with return receipt
requested, or (iii) when sent, if sent, by facsimile, as
confirmed by certified or registered mail. Notices shall be
delivered to the respective parties as indicated:
If to CVT: CV Therapeutics, Inc.
0000 Xxxxxx Xxxxx
Xxxx Xxxx, XX 00000
Attn: CEO
with a copy to: Xxxxxx Godward LLP
0000 Xx Xxxxxx Xxxx
Xxxx Xxxx, XX 00000
Attn: Xxxxxx X. Xxxxx, Esq.
Xxxxxxx X. Xxxxxxxx, Esq.
If to BML: Biotech Manufacturing Ltd.
Xx. Xxxx'x Xxxx
Xxx Xxxxxx
Xx. Xxxxxx, Xxxxxx XX00X
Channel Islands
with a copy to: Biogen, Inc.
00 Xxxxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Attn: Vice President - General Counsel
6.6 This Agreement may be executed in any number of separate
counterparts, each of which shall be deemed to be an original,
but which together shall constitute one and the same instrument.
IN WITNESS WHEREOF, the parties have executed this Agreement
as of the date set forth above.
CV THERAPEUTICS INC. BIOTECH MANUFACTURING LTD.
By: /s/ Xxxxx X. Xxxxx By:
Name: Xxxxx X. Xxxxx Name:
Title: CEO Title:
IN WITNESS WHEREOF, the parties have executed this Agreement
as of the date set forth above.
CV THERAPEUTICS INC. BIOTECH MANUFACTURING LTD.
By: By: /s/ Xxxxx X.X. Xxxxxxxx
Name: Name: Xxxxx X.X. Xxxxxxxx
Title: Title: Director
APPENDIX A
FORM OF NOTE
TRADOCS: 669241.8 (#c#108!.doc)
Final Version Loan, 3/7/97
PROMISSORY NOTE
$12,000,000.00 March 10, 1997
FOR VALUE RECEIVED, the undersigned, CV THERAPEUTICS, INC.
(the "Borrower"), having an address at 0000 Xxxxxx Xxxxx, Xxxx
Xxxx, Xxxxxxxxxx 00000, hereby promises to pay to the order of
BIOTECH MANUFACTURING LIMITED, having an address at St. Paul's
Gate, New Street, St. Helier, Jersey JE48Z, Channel Islands (the
"Lender"), the principal sum of
TWELVE MILLION DOLLARS ($12,000,000)
or such lesser sum which may from time to time be advanced
pursuant to the terms of the Loan Agreement dated March 7, 1997
between the Borrower and the Lender (the "Agreement").
Capitalized terms used herein and not defined herein have the
meanings assigned to them in the Agreement.
Principal
(a) The Borrower shall pay the principal balance of this
note which represents the Initial Installment in sixty (60) equal
consecutive monthly payments commencing on March 10, 2000 and
continuing on the like day of each subsequent month until
February 10, 2005. The last principal payment shall include all
other amounts due hereunder (including, without limitation, all
accrued interest plus costs of collection); except any amounts of
principal that are not yet due on account of the Loan Remainder.
All payments pursuant to paragraph (a) hereunder shall be in
cash.
(b) Except as otherwise provided in paragraph (c) hereof,
the Borrower shall pay the principal balance of this note which
represents the Loan Remainder out of royalties owed from Lender
and BIOGEN to Borrower according to the following schedule:
(i) Beginning on the date that is eighteen (18) months
after the FIRST COMMERCIAL SALE of PRODUCT, Lender's and BIOGEN's
royalty payments to Borrower (as provided in Section 10.2(a) of
the BML AGREEMENT and Section 10.2(a) of the BIOGEN AGREEMENT,
respectively) shall be reduced by thirty-three and one-third
(33.3%) percent and the amount of reduction shall be deducted
from the principal balance of the Loan Remainder until the Loan
Remainder is reduced to zero (0), at which time the principal
balance of the Loan Remainder shall be deemed to have been paid
in full.
In the alternative, if no Event of Default has occurred and
is continuing under the Note, the Borrower may, at its option,
elect to repay the principal amount owed under the Loan Remainder
in CVT Common Stock, registered for resale, priced at its then
Fair Market Value, subject to the provisions of Sections 2.1(g)
and 2.1(i) of the Agreement.
(c) Notwithstanding paragraphs (a) and (b), if the
Agreement is terminated for any reason, Borrower shall repay the
principal owed under the Initial Installment and the Loan
Remainder in 36-monthly equal installments commencing on the date
the Agreement is
terminated and continuing on the same day of each succeeding month, with
the final payment to be accompanied by a payment of all other amounts due
hereunder. Repayment of the Initial Installment shall be made in cash;
repayment of the Loan Remainder shall be made in cash or, in the absence
of a default, at the option of Borrower, in CVT Common Stock,
registered for resale, priced at its then Fair Market Value,
subject to the provisions of Sections 2.1(g) and 2.1(i) of the
Agreement.
(d) Notwithstanding anything contained in paragraph (b) and
(c) above, Lender may require that Borrower repay amounts
borrowed in cash rather than CVT Common Stock to the extent
necessary to ensure that the repayment of Common Stock will not
cause Lender's and its AFFILIATES' holdings in Borrower to exceed
nineteen and nine-tenths (19.9%) percent of CVT's total shares of
Common Stock outstanding after the completion of such sales to
Lender, as set forth in Section 2.1(g) of the Agreement.
Interest
Interest shall accrue on the outstanding principal balance
hereunder at a rate per annum equal to Prime plus 1%. Prime
shall be determined and adjusted in accordance with
Section 2.1(h) of the Agreement. Payments of interest shall be
made annually commencing on the one year anniversary date of the
execution of the Note and continuing on each anniversary date
until all amounts due hereunder have been paid in full. The
applicable rate of interest shall be adjusted semi-annually
according to the Prime Rate as announced on each six month
anniversary date. Interest shall be calculated on the basis of
actual days elapsed and a 360-day year.
The advances described in the Agreement and made by the
Lender to the Borrower, and all repayments made on the account of
principal thereof, shall be recorded by the Lender, on the
Schedule attached hereto which is a part of this Note; provided,
however, that the failure of the Lender so to record on this Note
(or any error in recording on this Note) shall not affect the
Borrower's obligations hereunder.
Payments hereon are to be made in lawful money of the United
States of America or in any other permitted manner set forth in
the Agreement at the Lender's address set forth above or such
other address as the Lender shall designate in writing to the
Borrower.
If any amount due under this Note is not paid in full within
10 days of the due date, whether as stated or by acceleration,
interest on the unpaid principal balance shall continue to accrue
and shall thereafter be increased effective as of such due date
to a rate per annum equal to three (3%) percent above the Prime
Rate.
It is the intent of the Lender and of the Borrower that in
no event shall interest be payable at a rate in excess of the
maximum rate permitted by applicable law (the "Maximum Legal
Rate"). Solely to the extent necessary to prevent interest under
this Note from exceeding the Maximum Legal Rate, any amount that
would be treated as excessive under a final judicial
interpretation of applicable law shall be deemed to have been a
mistake and automatically canceled and, if received by the
Lender, shall be applied to the principal balance of this Note
or, if no principal balance remains outstanding, then such amount
shall be refunded to the Borrower.
The Borrower may voluntarily prepay this Note in whole or in
part at any time and from time to time without penalty, together
with interest accrued on the amount prepaid through the date of
prepayment. Prepayments of principal which represents the
Initial Installment shall be made in cash; prepayments of
principal which represents the Loan Remainder shall be made in
cash or, in the absence of a default, at the option of the
Borrower, in CVT Common Stock, registered for resale, priced at
its then Fair Market Value, subject to the provisions of
Sections 2.1(g) and 2.1(i) of the Agreement.
Upon the occurrence of any one or more of the following
events (each, an "Event of Default") subject to expiration of any
applicable grace or cure periods, the Lender at its option may
declare all amounts due hereunder, including, without limitation,
the entire unpaid principal balance of this Note and any accrued,
unpaid interest thereon, to be immediately due and payable in
cash without notice or protest (both of which are hereby waived):
(a) The failure to make any payment of principal or
interest due pursuant to the terms of this Note within ten
(10) days after the due date;
(b) The failure to promptly, punctually, and faithfully
perform or discharge any material liability or obligation of
the Borrower to the Lender;
(c) The material breach by Borrower of any material
covenant set forth in the Agreement;
(d) The determination by the Lender that any material
representation or warranty now or hereafter made by the
Borrower to the Lender in any document, instrument,
agreement, or paper was not true or accurate when given;
(e) The commencement by the Borrower of a voluntary case
under 11 U.S.C. `101 et. seq. (the "Bankruptcy Code") or any
foreign, federal or state bankruptcy, insolvency or other
similar law now or hereafter in effect, or (ii) the consent
by the Borrower to the entry of an order for relief in an
involuntary bankruptcy or similar case, or to the conversion
of an involuntary case to a voluntary case, under any such
law, or (iii) the consent by the Borrower to the appointment
of, or the taking of possession by, a receiver, trustee or
other custodian for all or a substantial part of its
properties, or (iv) the making by the Borrower of any
assignment for the benefit of creditors, or (v) the
admission by the Borrower in writing of its inability to pay
its debts as such debts become due, or (vi) the death,
discontinuance of business, dissolution, winding up,
liquidation or cessation of existence by the Borrower;
(f) The entry by a court of a decree or order for relief
with respect to the Borrower in an involuntary case under
the Bankruptcy Code or any applicable foreign, federal or
state bankruptcy, insolvency or other similar law now or
hereafter in effect, which decree or order is not stayed or
dismissed within 60 days of the entry thereof, or (ii) the
entry by a court of a decree or order for the appointment of
a receiver, liquidator, sequestrator, trustee, custodian or
other person having similar powers over the Borrower or over
all or a substantial part of its properties;
(g) A judgment, decree, writ, warrant of attachment or
similar process in an amount equal to or exceeding ten
percent (10%) of Borrower's "Free Cash" ["Free Cash" =
unrestricted cash less debt owed to third parties other than
Lender] is entered against the Borrower or any of its
assets, if such judgment, decree, writ, warrant of
attachment or similar process is not adequately covered by
insurance or has not been vacated, discharged, appealed from
(with execution or similar process continuously stayed)
within fifteen (15) days of such judgment's entry;
(h) The service of any process upon the Lender seeking to
attach by mesne or trustee process, or otherwise, any funds
of the Borrower on deposit with the Lender or owed by the
Lender to the Borrower;
(i) The occurrence of any event such that any indebtedness
of the Borrower, in an amount equal to or exceeding ten
percent (10%) of Borrower's Free Cash, which is owed to a
person or entity other than the Lender could be accelerated,
notwithstanding that such acceleration has not taken place;
and
(j) The beneficial ownership at any time of forty percent
(40%) or more of the issued and outstanding capital stock of
the Borrower having voting rights becomes owned by persons
or entities who were not such owners on the date of
execution of this Note.
Upon the occurrence and continuance of any Event of Default
hereunder, (i) the Lender may declare the principal balance of
this Note to be immediately due and payable in cash, provided,
however, in the case of an Event of Default described in
paragraphs (e) or (f) above, all amounts payable by the Borrower
hereunder, including, without limitation, the principal balance
and all accrued interest on this Note, shall automatically become
immediately due and payable in cash, without notice, action or
election by the Lender, and (iii) the Lender may enforce any
other rights granted pursuant to this Note, any other document,
or by applicable law. All of the rights of the Lender hereunder
shall be cumulative and not exclusive, and each of which may be
exercised singly, repetitively, in any combination, and in any
order. The Lender's rights and remedies hereunder, subject to
the limitation expressed in Section 2.1(b) of the Agreement, may
be exercised without resort or regard to any other source of
satisfaction of any liabilities owing by the Borrower to the
Lender. No inconsistency between the default provisions of this
Note and any other agreement shall be deemed to create any
additional notice, cure or grace period or derogate from the
express terms of such provisions.
The Borrower agrees to pay on demand all costs and expenses
(including, without limitation, the reasonable fees and
out-of-pocket expenses of legal counsel) incurred by the Lender
in connection with enforcing or exercising any rights or remedies
under this Note, whether or not legal action is instituted. Any
fees, expenses or other charges which the Lender is entitled to
receive from the Borrower hereunder shall constitute an
obligation of the Borrower pursuant to this Note, and shall bear
interest until paid at a rate per annum equal to the maximum rate
in effect and permitted hereunder.
Any deposits or other sums at any time credited by or due
from the Lender to the Borrower, and any securities or other
property of the Borrower which, at any time, shall be in the
possession of the Lender, may be held and treated as collateral
for the payment of this Note and
any and all other liabilities (direct or indirect, absolute or contingent,
sole, joint, or several, secured or unsecured, due or to become due, now
existing or hereafter arising) of the Borrower to the Lender. Upon the
occurrence of an Event of Default, subject to the expiration of
any applicable grace or cure periods, and to the limitation
expressed in Section 2.1(b) of the Agreement, and regardless of
the adequacy of collateral, the Lender may apply or set off such
deposits or other property against such liabilities.
The Borrower hereby waives presentment, demand, protest or
notice of any kind in connection with this Note. No failure on
the part of the Lender in exercising any right or remedy
hereunder, and no single, partial or delayed exercise by the
Lender of any right or remedy shall preclude the full and timely
exercise by the Lender at any time of any right or remedy of the
Lender hereunder without notice. No course of dealing or other
conduct, no oral agreement or representation made by the Lender
or usage of trade shall operate as a waiver of any right or
remedy of the Lender. This Note contains the entire agreement
between the parties with respect to the subject matter hereof,
and supersedes every course of dealing, other conduct, oral
agreement or representation previously made by the Lender. In
the event that any court of competent jurisdiction shall
determine that any provision, or portion thereof, contained in
this Note shall be unenforceable in any respect, then such
provision shall be deemed limited to the extent that such court
deems it enforceable, and the remaining provisions of this Note
shall nevertheless remain in full force and effect.
None of the terms or provisions of this Note may be
excluded, modified, or amended except by a written instrument
duly executed on behalf of both the Borrower and the Lender
expressly referring hereto and setting forth the provision so
excluded, modified or amended. No waiver or forbearance of any
of the rights and remedies of the Lender hereunder shall be
effective unless made specifically in a writing signed by the
Lender, and any such waiver or forbearance shall be effective
only in the specific instance and for the specific purpose for
which given.
This Note is the "Note" referred to in the Agreement and is
entitled to all of the rights and benefits referred to therein.
This Note shall be binding upon the Borrower and shall be
enforceable against the Borrower and its heirs, successors and
representatives, and shall inure to the benefit of the Lender and
its successors, endorsees and assigns. The Borrower may not
assign this Note or any rights hereunder without the express
written consent of the Lender.
In the event CVT merges or consolidates with, or sells or
assigns all or substantially all of its assets to, an entity,
then, notwithstanding any contrary provision hereof or of the
Agreement, (a) Lender shall not be obligated to advance any
further sums pursuant to the Agreement, and (b) all sums then
outstanding hereunder shall be repayable in cash in 36-monthly
equal installments commencing on the date of such event and
continuing on the same day of each succeeding month.
If more than one Borrower signs this Note, the term
"Borrower" shall include each such signatory, individually and
collectively, and each such signatory, together with any endorser
or guarantor of this Note, shall be jointly and severally liable
hereunder. No person obligated on
account of this Note may seek contribution from any other person also
obligated hereon unless and until all liabilities to the Lender of the
person from whom contribution is sought have been satisfied in full.
THIS NOTE IS DELIVERED TO THE LENDER AT ITS PRINCIPAL OFFICE
IN ST. HELIER, JERSEY, CHANNEL ISLANDS, AND SHALL BE GOVERNED BY,
AND CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE
STATE OF DELAWARE, WITHOUT REGARD TO ITS PRINCIPLES OF CONFLICTS
OF LAWS AND SHALL TAKE EFFECT AS A SEALED INSTRUMENT.
THE BORROWER HEREBY EXPRESSLY, KNOWINGLY AND VOLUNTARILY WAIVES ALL
RIGHTS TO TRIAL BY JURY IN ANY ACTION OR PROCEEDING ARISING OUT OF, IN
CONNECTION WITH, OR RELATED TO THIS NOTE, INCLUDING, WITHOUT LIMITATION,
IN CONNECTION WITH ANY DEFENSE, AFFIRMATIVE DEFENSE, COUNTERCLAIM OR THE
LIKE ASSERTED AGAINST THE LENDER.
IN WITNESS WHEREOF, the Borrower has caused this Note to be executed
as an instrument under seal by its duly authorized officer as of date first
written.
Witness: CV THERAPEUTICS INC.
/s/ Xxxxxxx Xxxxxx, D.V.M. /s/ Xxxxx Xxxxx
(Signature)
by: /s/ Xxxxx Xxxxx
(Print or type name)
its: CEO
(Title or Capacity)
