Attached files
file | filename |
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S-1/A - FORM S-1/A - Anthera Pharmaceuticals Inc | f53438a3sv1za.htm |
EX-4.1 - EX-4.1 - Anthera Pharmaceuticals Inc | f53438a3exv4w1.htm |
EX-4.2 - EX-4.2 - Anthera Pharmaceuticals Inc | f53438a3exv4w2.htm |
EX-3.2 - EX-3.2 - Anthera Pharmaceuticals Inc | f53438a3exv3w2.htm |
EX-10.23 - EX-10.23 - Anthera Pharmaceuticals Inc | f53438a3exv10w23.htm |
EX-10.25 - EX-10.25 - Anthera Pharmaceuticals Inc | f53438a3exv10w25.htm |
EX-10.20 - EX-10.20 - Anthera Pharmaceuticals Inc | f53438a3exv10w20.htm |
EX-10.24 - EX-10.24 - Anthera Pharmaceuticals Inc | f53438a3exv10w24.htm |
EX-10.10 - EX-10.10 - Anthera Pharmaceuticals Inc | f53438a3exv10w10.htm |
EX-10.21 - EX-10.21 - Anthera Pharmaceuticals Inc | f53438a3exv10w21.htm |
EXHIBIT 10.22
FORM OF INITIAL NOTE
THIS CONVERTIBLE PROMISSORY NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED. NO SALE OR DISPOSITION MAY BE EFFECTED EXCEPT IN COMPLIANCE WITH RULE 144 UNDER SAID ACT
OR AN EFFECTIVE REGISTRATION STATEMENT RELATED THERETO OR AN OPINION OF COUNSEL FOR THE HOLDER
SATISFACTORY TO THE COMPANY THAT SUCH REGISTRATION IS NOT REQUIRED UNDER THE ACT OR RECEIPT OF A
NO-ACTION LETTER FROM THE SECURITIES AND EXCHANGE COMMISSION.
FORM OF SENIOR SECURED CONVERTIBLE PROMISSORY NOTE
$ | December 11, 2009 Hayward, California |
For value received Anthera Pharmaceuticals, Inc., a Delaware corporation (Payor or
the Company) promises to pay to
or its assigns (Holder) the
principal sum of $
with simple interest on the outstanding principal amount at the rate
of Eight Percent (8%) per annum (the Interest). Interest shall commence with the date
hereof and shall continue on the outstanding principal until paid in full or converted. Interest
shall be computed on the basis of a year of 365 days for the actual number of days elapsed. Unless
otherwise defined herein, defined terms in this note (the Note) shall have the meanings
ascribed to them in that certain Note Purchase Agreement, dated as of December 11, 2009, by and
among the Company and the persons or entities listed on the Schedule of Purchasers attached thereto
(the Purchase Agreement).
1. This Note is issued as part of a series of similar notes (collectively, the
Notes) to be issued pursuant to the terms of the Purchase Agreement to the persons or
entities listed on the Schedule of Purchasers attached thereto (collectively, the
Holders).
2. Except as set forth herein and provided that this Note is not converted pursuant to Section
2.2 of the Purchase Agreement, all payments of interest and principal under this Note shall be made
in lawful money of the United States of America at such place as Holder may from time to time
designate in writing to the Company. All payments shall be applied first to accrued and unpaid
interest, and thereafter to the payment of principal. The Company may not prepay any principal
amount or interest on the Notes, in whole or in part.
3. Unless earlier converted pursuant to Section 2.2 of the Purchase Agreement or exchanged
pursuant to Section 2.3 of the Purchase Agreement, the entire outstanding principal balance of this
Note plus all unpaid accrued interest thereon, if any, shall be due and payable in full immediately
upon the earlier of the following (the Maturity Date): (i) July 17, 2010 or (ii) any
Event of Default (as defined in Section 7 of the Purchase Agreement).
4. This Note is secured pursuant to Section 2.4 of the Purchase Agreement. Reference is
hereby made to Section 2.4 of the Purchase Agreement for a complete description
1.
of the nature and extent of the security for this Note and the rights with respect to such
security of the holder of this Note.
5. At any time prior to the Maturity Date, the principal balance and accrued and unpaid
interest of this Note shall automatically convert, in whole without any further action by
the Holders, upon the closing of the IPO into Conversion Shares in accordance with the terms
of Section 2.2(a) of the Purchase Agreement.
6. Upon the conversion of a Note pursuant to Section 2.2 of the Purchase Agreement, in lieu of
any fractional shares to which the holder of such Note would otherwise be entitled, the Company
shall pay the Notes holder cash equal to such fraction multiplied by the Initial Note Conversion
Price. Upon the conversion of this Note pursuant to Section 2.2 of the Purchase Agreement, Holder
shall surrender this Note, duly endorsed, at the principal offices of Company. At its expense,
Company will, as soon as practicable thereafter, issue and deliver to Holder (i) a certificate or
certificates for the number of shares to which Holder is entitled upon such conversion, together
with (ii) a check payable to Holder for any cash amounts described herein and (iii) any other
securities and property to which Holder is entitled upon such conversion under the terms of this
Note.
7. In the event that the IPO has not been consummated on or before February 28, 2010 (the
Exchange Date), the principal balance and accrued and unpaid interest of this Note shall
be exchanged for an Exchange Note in accordance with the terms of Section 2.3(a) of the Purchase
Agreement. In the event of an exchange, Holder shall surrender this Note, duly endorsed, at the
principal offices of Company. At its expense, Company will, as soon as practicable thereafter,
issue and deliver to Holder (i) an Exchange Note reflecting the principal balance and accrued
interest through the Exchange Date and (ii) a Warrant issued in accordance with Section 2.3(i) of
the Purchase Agreement.
8. Upon the earliest of (i) the full conversion of this Note pursuant to Section 2.2 of the
Purchase Agreement, (ii) exchange of this Note pursuant to Section 2.3(a) of the Purchase
Agreement, or (ii) the full payment of the amounts specified in this Note, the Company shall be
released from all of its obligations under this Note.
9. If there shall be any Event of Default, the nature of which is described in Section 7.1 of
the Purchase Agreement, then, at the option and upon the declaration of the Required Note Holders
and upon written notice to the Company (which election and notice shall not be required in the case
of an Event of Default described in Section 7.1(b) or 7.1(c) of the Purchase Agreement), the entire
unpaid principal and accrued and unpaid interest on this Note shall be forthwith due and payable,
and the Holder hereof may, immediately and without expiration of any period of grace, enforce
payment of all amounts due and owing under this Note and exercise any and all other remedies
granted to it at law, in equity or otherwise.
10. This Note shall be governed by the laws of the State of California, as applied to
agreements among California residents, made and to be performed entirely within the State of
California, without giving effect to conflicts of laws principles. Any dispute arising out of or
in connection with the transactions contemplated by this Note will be resolved solely by
confidential binding arbitration in San Francisco, California according to the then current
2.
commercial arbitration rules of JAMS. Each party shall bear its own attorneys fees, expert
witness fees, and costs connected to such arbitration.
11. The amendment or waiver of any term of this Note, the resolution of any controversy or
claim arising out of or relating to this Note and the provision of notice shall be conducted
pursuant to the terms of the Purchase Agreement.
12. This Note applies to, inures to the benefit of, and binds the successors and assigns of
the parties hereto. This Note may be transferred only (i) with the prior written consent of the
Company, (ii) in full compliance with applicable federal and state securities laws, (iii) to a
transferee or assignee whom or that has agreed in writing for the benefit of the Company to be
bound in all respects by the Purchase Agreement and by all restrictions on transfer as set forth in
the Rights Agreement and (iv) upon its surrender to the Company for registration of transfer, duly
endorsed, or accompanied by a duly executed written instrument of transfer in form satisfactory to
the Company. Thereupon, this Note shall be reissued to, and registered in the name of, the
transferee, or a new Note for like principal amount and interest shall be issued to, and registered
in the name of, the transferee. Interest and principal shall be paid solely to the registered
holder of this Note. Such payment shall constitute full discharge of the Companys obligation to
pay such interest and principal. The Holder and any subsequent holder of this Note receives this
Note subject to the foregoing terms and conditions, and agrees to comply with the foregoing terms
and conditions for the benefit of the Company and any other Holders.
13. In no event shall any officer or director of the Company be liable for any amounts due and
payable pursuant to this Note.
14. Upon receipt of evidence reasonably satisfactory to the Company of the loss, theft,
destruction or mutilation of this Note and (in the case of loss, theft or destruction) upon
delivery of an indemnity agreement (with surety if reasonably required) in an amount reasonably
satisfactory to the Company, or (in the case of mutilation) upon surrender and cancellation of this
Note, the Company will issue, in lieu thereof, a new Note of like tenor.
[Remainder of Page Intentionally Left Blank]
3.
Anthera Pharmaceuticals, Inc. | ||||||
By: | ||||||
Name: | ||||||
Title: | President and Chief Executive Officer |
SIGNATURE PAGE TO
SENIOR SECURED CONVERTIBLE PROMISSORY NOTE
SENIOR SECURED CONVERTIBLE PROMISSORY NOTE