SECURED NOTE
| EXECUTION COPY |
Exhibit
10.143
|
| $2,500,000.00 |
July __,
2008
|
FOR VALUE
RECEIVED, Vyteris, Inc., a Nevada corporation (the "Borrower"), hereby
promises to pay to the order of Ferring Pharmaceuticals, Inc. (the "Holder"), in
lawful money of the United States of America and in immediately available funds,
the principal sum of Two Million Five Hundred Thousand Dollars ($2,500,000.00),
with interest accruing on the outstanding principal balance from the date hereof
as provided below.
1. Rate of
Interest. The principal amount of this Note shall bear
interest at the rate of ten percent (10%) per annum. In no event
shall the rate of interest hereunder (whether pursuant to this Section 1 or the
Default Rate) exceed the maximum rate allowed by law.
2. Payment
Terms. During the term of this Note, interest shall accrued at
the interest rate set forth in paragraph 1 above and shall be due and payable in
full on the Maturity Date (as defined below).. Unless earlier paid in
accordance with the terms hereof, the entire outstanding principal amount of
this Note, together with all outstanding interest accrued thereon, shall be due
and payable in full on July ___, 2009, unless the right of offset set forth in
paragraph 4 is not elected, in which case the Note shall be due and payable in
full on July __, 2010 (either of July __, 2009 or July __, 2010 shall be
referred to as the “Maturity Date” as
applicable).
3. Default
Interest. If any payment due under this Note is more than ten
(10) business days late, the overdue amount shall bear interest at the rate of
twelve percent (12%) per annum (the “Default
Rate”). Such 10 business day period shall not be construed in
any way to extend the due date of any such payment. Upon maturity,
whether by acceleration, demand or otherwise, and at the option of the Holder
upon the occurrence of any Event of Default (as hereinafter defined) and during
the continuance thereof, this Note shall bear interest at the Default
Rate.
4. Right of
Offset. In the event that, on or before the Maturity Date, the
Holder elects to initiate Phase II clinical trials (“Phase II Trials”),
pursuant to Section 5.04 of that certain License and Development Agreement
between the Borrower and Holder dated September 27, 2004 (“License and Development
Agreement”), then, instead of making the $2,500,000 payment due with
respect thereto pursuant to Section 5.02(ii) of the License and Development
Agreement, the Holder may elect to offset such $2,500,000 payment on the
election date against the principal amount of this Note, at which time, upon
payment by the Borrower of any accrued and unpaid interest thereon (which shall
thereupon become due and payable), this Note shall be considered paid in full
without any further action by either party. There is no premium or
penalty for any such prepayment of this Note.
5. Prepayment. The
Borrower shall have the right to prepay the outstanding principal amount hereof
at any time in whole without premium or penalty.
6. Place of
Payment. All payments of sums due hereunder shall be paid by
the Borrower to the Holder at the office of the Holder, 0 Xxxxxxxx Xxxxx,
Xxxxxxxxxx, Xxx Xxxxxx 00000, or at such other location as the Holder
may from time to time designate in writing.
7. Security Agreement; Letter
Agreement. This Note is the Note and the Secured Note referred
to in the Security Agreement dated as of the date hereof between the Borrower
and the Holder (the “Security Agreement”),
is secured by the liens and security interests granted pursuant to the Security
Agreement, and is entitled to the benefits of the Security
Agreement. As additional consideration for the making of the loan to
the Borrower evidenced hereby, the Borrower and the Holder have entered into a
certain letter agreement of even date herewith (the “Letter Agreement”) amending
certain provisions of the License and Development Agreement and the Supply
Agreement referred to therein.
8. Events of
Default. The occurrence of any of the following events will be
deemed to be an "Event
of Default" under this Note:
(i) the
Borrower fails to pay any installment of principal, interest or other sum due
under this Note within ten (10) days of the date when due;
(ii) the
Borrower breaches in any material respect any covenant or other term or
condition of the Security Agreement, this Note or the letter agreement dated
hereof between the Borrower and the Holder (the “Letter Agreement”)
and such breach, if capable of being cured, continues for a period of ten (10)
business days after written notice to the Borrower from the Holder;
(iii) any
representation or warranty made by the Borrower in the Security Agreement or the
Letter Agreement is false, inaccurate or misleading in any material
respect;
(iv) the
Borrower shall make an assignment for the benefit of creditors, or apply for or
consent to the appointment of a receiver or trustee for the Borrower for a
substantial part of the Borrower’s property or business; or such receiver or
trustee shall be involuntarily appointed and not dismissed within ninety (90)
days; or
(v) bankruptcy,
insolvency, reorganization or liquidation proceedings or other proceedings or
relief under any bankruptcy law or any law, or the issuance of any notice in
relation to such event, for the relief of debtors shall be instituted by or
against the Borrower and if instituted against the Borrower are not dismissed
within sixty (60) days of initiation.
Upon the
occurrence of an Event of Default: (a) if an Event of Default
specified in clauses (iv) or (v) above shall occur, the outstanding principal
balance and accrued interest hereunder together with any additional amounts
payable hereunder shall be immediately due and payable without demand or notice
of any kind; (b) if any other Event of Default shall occur, the outstanding
principal balance and accrued interest hereunder together with any additional
amounts payable hereunder, at the option of the Holder and without demand or
notice of any kind may be accelerated and become immediately due and payable;
(c) at the option of the Holder, this Note will bear interest at the Default
Rate from the date of the occurrence of the Event of Default; and (d) the Holder
may exercise from time to time any of the rights and remedies available to the
Holder under the Loan Documents (as hereinafter defined) or under applicable
law.
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9. Security Interest/Waiver of
Automatic Stay. This Note is secured by a security
interest granted to the Holder pursuant to the Security
Agreement. The Borrower acknowledges and agrees that should a
proceeding under any bankruptcy or insolvency law be commenced by or against the
Borrower, or if any of the Collateral (as defined in the Security Agreement)
should become the subject of any bankruptcy or insolvency proceeding, then the
Holder should be entitled to, among other relief to which the Holder may be
entitled under this Note, the Security Agreement and/or the Letter Agreement
(collectively, "Loan
Documents") and/or applicable law, an order from the court granting
immediate relief from the automatic stay pursuant to 11 U.S.C. Section 362 to
permit the Holder to exercise all of its rights and remedies pursuant to the
Loan Documents and/or applicable law.
10.
Failure or Indulgence Not
Waiver. No failure or delay on the part of the Holder hereof
in the exercise of any power, right or privilege hereunder shall operate as a
waiver thereof, nor shall any single or partial exercise of any such power,
right or privilege preclude other or further exercise thereof or of any other
right, power or privilege. All rights and remedies existing hereunder
are cumulative to, and not exclusive of, any rights or remedies otherwise
available.
11.
Waiver of
Presentment. The Borrower waives presentment, demand for
payment, protest and notice of dishonor of this Note.
12.
Notices. All
notices, demands, requests, consents, approvals, and other communications
required or permitted hereunder shall be in writing and, unless otherwise
specified herein, shall be (i) personally served, (ii) deposited in the mail,
registered or certified, return receipt requested, postage prepaid, (iii)
delivered by reputable air courier service with charges prepaid, or (iv)
transmitted by hand delivery, telegram, or facsimile, addressed as set forth
below or to such other address as such party shall have specified most recently
by written notice. Any notice or other communication required or
permitted to be given hereunder shall be deemed effective (a) upon hand delivery
or delivery by facsimile, with accurate confirmation generated by the
transmitting facsimile machine, at the address or number designated below (if
delivered on a business day during normal business hours where such notice is to
be received), or the first business day following such delivery (if delivered
other than on a business day during normal business hours where such notice is
to be received) or (b) on the second business day following the date of mailing
by express courier service, fully prepaid, addressed to such address, or upon
actual receipt of such mailing, whichever shall first occur. The
addresses for such communications shall be: (i) if to the Borrower to: Xxxxxx
Xxxxxx, Chairman, Vyteris, Inc., 00-00 Xxxxxxx Xxxxx, Xxxx Xxxx, Xxx Xxxxxx
00000, fax no.: (000) 000-0000, and (ii) if to the Holder, to: Xxxx Xxxxxxx,
Esq., Ferring Pharmaceuticals, Inc., 0 Xxxxxxxx Xxxxx, 0xx Xxxxx,
Xxxxxxxxxx, Xxx Xxxxxx 00000, fax no.: (000)
000-0000.
13.
Amendment. No
modification, amendment or waiver of, or consent to any departure by the
Borrower from, any provision of this Note will be effective unless made in a
writing signed by the Holder, and then such waiver or consent shall be effective
only in the specific instance and for the purpose for which given.
14.
Assignability. This
Note shall bind the Borrower and its successors and assigns, and the benefits
hereof shall inure to the benefit of the Holder and its successors and assigns;
provided, however, that the Borrower may not assign this Note in whole or in
part without the Holder’s written consent and the Holder at any time may assign
this Note in whole or in part.
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15.
Cost of
Collection. The Borrower agrees to pay on demand, to the
extent permitted by law, all costs and expenses incurred by the Holder in the
enforcement of its rights in this Note and in any security therefor, including
without limitation reasonable fees and expenses of the Holder’s
counsel.
16.
Governing
Law. The Borrower hereby irrevocably consents to the
exclusive jurisdiction of any state or federal court in the City of Newark,
State of New Jersey; provided that nothing contained in this Note will prevent
the Holder from bringing any action, enforcing any award or judgment or
exercising any rights against the Borrower individually, against any security or
against any property of the Borrower within any other county, state or other
foreign or domestic jurisdiction. The Borrower acknowledges and
agrees that the venue provided above is the most convenient forum for both the
Holder and the Borrower. The Borrower waives any objection to venue
and any objection based on a more convenient forum in any action instituted
under this Note. This Note shall be governed by and construed in
accordance with the laws of the State of New Jersey without giving effect to
conflicts of laws principles.
17.
WAIVER OF JURY
TRIAL. THE BORROWER IRREVOCABLY WAIVES ANY AND ALL RIGHT IT
MAY HAVE TO A TRIAL BY JURY IN ANY ACTION, PROCEEDING OR CLAIM OF ANY NATURE
RELATING TO THIS NOTE, ANY DOCUMENTS EXECUTED IN CONNECTION WITH THIS NOTE OR
ANY TRANSACTION CONTEMPLATED IN ANY OF SUCH DOCUMENTS. THE BORROWER
ACKNOWLEDGES THAT THE FOREGOING WAIVER IS KNOWING AND VOLUNTARY.
The
Borrower acknowledges that it has read and understands all of the provisions of
this Note, including the waiver of jury trial, and has been advised by counsel
as necessary or appropriate.
IN
WITNESS WHEREOF, the Borrower has caused this Note to be signed in its name by
an authorized officer as of the 8th day of July, 2008.
| VYTERIS, INC. | |||
| By: | /s/ Xxxxxx Xxxxxx | ||
| Xxxxxx Xxxxxx | |||
| Chairman | |||
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