Exhibit 10.46
PROMISSORY NOTE
$_________________ Minneapolis, Minnesota
January 24, 2003
FOR VALUE RECEIVED, the undersigned, Antares Pharma, Inc. ("Maker"),
promises to pay to ____________________ ("Lender") or to its order, at
_____________________________ (or at such other place as the holder hereof shall
notify Maker in writing) the principal amount of _______________________________
($______________) with interest from the date hereof on the unpaid principal
balance hereunder at a rate equal to eight percent (8%) per annum. The principal
amount and all accrued, but unpaid, interest shall be paid in full thirty (30)
days from the date hereof in accordance with the terms set forth herein. This
Note is unsecured in all respects; provided, however, this Note is exchangeable
for Maker's new 8% Senior Secured Convertible Debentures (the "New Debt
Securities") on the terms and conditions set forth in, and in connection with
the consummation of the transactions contemplated by, that certain Term Sheet,
dated January 22, 2003 (the "Term Sheet"), by and among Maker, Lender and XMark
Fund, L.P.
Maker hereby covenants that the proceeds from this Note shall be used
for the sole purpose of repurchasing Maker's 10% Secured Convertible Debentures
(the "Debentures") issued to Otato Limited Partnership, AJW Partners, LLC, AJW
Offshore, Ltd., and AJW Qualified Partners, LLC pursuant to that certain
Securities Purchase Agreement, dated July 12, 2002, by and among Maker and
certain holders of the Debentures. By accepting the proceeds from this Note,
Maker hereby covenants and agrees to consummate the transactions contemplated by
the Term Sheet on the terms and conditions set forth therein in a timely manner
following the issuance of this Note (but in any event not to exceed thirty (30)
days following the issuance of this Note).
This Note shall be payable, at the option of the Lender, either in
lawful money of the United States of America or in exchange for the New Debt
Securities on the terms and conditions set forth in, and in connection with the
consummation of the transactions contemplated by, the Term Sheet. This Note may
not be prepaid unless, as part of such prepayment, this Note is exchanged for
New Debt Securities on the terms and conditions set forth in, and in connection
with the consummation of the transactions contemplated by, the Term Sheet.
If any default occurs in any payment due under this Note or any other
provision of this Note: (a) Maker and its successors and assigns promise to pay
all reasonable costs and expenses, including reasonable attorneys' fees,
incurred by Xxxxxx in collecting or attempting to collect the indebtedness under
this Note and (b) Lender may, without further notice to Maker, which notice
Maker hereby waives, exercise any and all rights under this Note. None of the
provisions hereof and none of Xxxxxx's rights or remedies hereunder on account
of any past or future defaults shall be deemed to have been waived by Xxxxxx's
acceptance of any past due installments or by any accommodation or indulgence
granted by Lender to Maker.
Maker hereby waives presentment, demand, protest and notice thereof or
of dishonor, and agrees that it shall remain liable for all amounts due
hereunder notwithstanding any extension of time or change in the terms of
payment of this Note granted by any holder hereof, any change,
alteration or release of any property now or hereafter securing the payment
hereof or any delay or failure by the holder hereof to exercise any rights under
this Note.
No modification, alteration, waiver or change of any of the provisions
hereof shall be effective unless in writing and signed by Maker and Lender and,
then, only to the extent set forth in such writing.
This Note shall be governed by and construed in accordance with the
laws of the State of New York without regard to provisions relating to conflicts
of law. Any action to enforce or collect indebtedness under this Note shall be
venued in state or federal court in New York. This Note shall be binding upon
Maker and its successors and assigns.
IN WITNESS WHEREOF, Maker has caused this Note to be duly executed to
be effective the day and year first above written.
ANTARES PHARMA, INC.
___________________________________________
Xxxxxxxx Xxxxxxxxx
Chief Financial Officer, Vice President-Finance
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