EXHIBIT 10.8
DELCATH SYSTEMS, INC.
PROMISSORY NOTE
$__________ September __, 2000
FOR VALUE RECEIVED, DELCATH SYSTEMS, INC., a Delaware corporation (the
"Company") with its principal executive office at 0000 Xxxxxx Xxxxxx, Xxxxxxxx,
Xxxxxxxxxxx 00000, promises to pay to:
___________________________
___________________________
___________________________
(the "Payee") or permitted successors and assigns of the Payee, on or before
June __, 2001, the principal amount of ____________________and 00/100 Dollars
($_______) (the "Principal Amount"), together with interest thereon, at the rate
of 22% per annum, at Xxxxx's address set forth above, or at such other place as
the Payee shall have notified the Company before any payment hereunder. The Note
shall not be prepayable.
This Note is one of several notes (the "Bridge Notes") issued by the
Company in the aggregate principal amount of $230,000 to provide bridge
financing pending the consummation of a proposed initial public offering by the
Company of its common stock (the "IPO").
If the Company defaults in the payment of principal and interest on the
Bridge Notes, and has not closed on an initial public offering within nine (9)
months from the date of this Note then the Company, at its option, may satisfy
the Bridge Notes by issuing that aggregate number of shares of the Company as
equal to ten (10%) percent of the Company's then outstanding number of shares,
after giving effect to the issuance of shares to all the Bridge Note holders.
Each Payee shall be entitled to receive his pro rata portion of such aggregate
number of shares. If the Company does not exercise its option to satisfy the
Bridge Notes through issuance of shares then within 10 days of any such default
then any Payee shall have the right to demand payment in shares as provided
herein.
The Company further agrees:
(i) Upon the consummation of the IPO, it will segregate from the
proceeds received therefrom the amount equal to the principal and interest
payable through maturity of the Note in a Certificate of Deposit which it shall
earmark for repayment of the Note.
(ii) It will make available to the Payee copies of any registration
statement registering its stock with the Securities and Exchange Commission if
and when requested by the Payee.
(iii) It will reimburse the Payee for expenses, including legal fees,
incurred by Xxxxx in connection with the loan evidenced by this Note provided
such amount is submitted to the Company in advance of the loan and agreed to and
accepted by the Company.
Anything above to the contrary notwithstanding, this Note shall become
immediately due and payable if the Company shall: (i) apply for or consent to
the appointment of a receiver, trustee, custodian or liquidator of it or any of
its properties, (ii) admit in writing its inability to pay its debts as they
mature, (iii) make a general assignment for the benefit of creditors, (iv) be
adjudicated a bankrupt or insolvent or be the subject of an order for relief
under Title 11 of the United States Code, (v) file a voluntary petition in
bankruptcy, or a petition or an answer seeking reorganization or an arrangement
with creditors or to take advantage or any bankruptcy, reorganization,
insolvency, readjustment of debt, dissolution or liquidation law or statute, or
an answer admitting the material allegations of a petition filed against him or
it in any proceeding under any such law, or (vi) take or permit to be taken any
action in furtherance of or for the purpose of effecting any of the foregoing.
This Note shall be construed in accordance with the laws of New York
and all legal proceedings to enforce payment shall be brought in the state or
federal courts located in New York City.
The Company hereby waives diligence, presentment, demand, protest and
notice of any kind whatsoever. The nonexercise by Xxxxx of any of its rights
hereunder in any particular instance shall not constitute a waiver thereof in
that or any subsequent instance.
IN WITNESS WHEREOF, this Note has been executed and delivered on the
date specified above by the duly authorized representative of the Company.
DELCATH SYSTEMS, INC.
By: _____________________________
Name:
Title:
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