Attached files
file | filename |
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8-K - WINDTREE THERAPEUTICS INC /DE/ | v182496_8k.htm |
EX-4.1 - WINDTREE THERAPEUTICS INC /DE/ | v182496_ex4-1.htm |
EX-1.1 - WINDTREE THERAPEUTICS INC /DE/ | v182496_ex1-1.htm |
EX-1.3 - WINDTREE THERAPEUTICS INC /DE/ | v182496_ex1-3.htm |
EX-5.1 - WINDTREE THERAPEUTICS INC /DE/ | v182496_ex5-1.htm |
EXHIBIT
1.2
THIRD
AMENDED AND RESTATED
PROMISSORY
NOTE
$4,000,000
|
April
28, 2010
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FOR VALUE
RECEIVED, DISCOVERY LABORATORIES, INC., a Delaware corporation (“Borrower”), hereby
promises to pay to the order of PHARMABIO DEVELOPMENT INC., a North Carolina
corporation (“Lender”), in lawful
money of the United States of America in immediately available funds, the lesser
of (i) the principal sum of Four Million Dollars ($4,000,000) and (ii) the
aggregate unpaid principal amount of the Loan (as defined in the Loan Agreement
referred to below) made by Lender to Borrower pursuant to the Loan Agreement (as
defined below), together with interest accrued thereon. Interest
shall accrue and compound on the unpaid principal amount of the Loan at the
rates and in the manner provided in the Loan Agreement. Payment of
the principal amount of this Note and accrued interest on this Note shall be
made at the times and in the manner provided in the Loan Agreement.
This Note
is made and dated as of December 10, 2001, as amended and restated as of
November 3, 2004, further amended and restated as of October 25, 2006, and
further amended and restated as of the date set forth
above. Capitalized terms used but not defined herein shall have the
meanings ascribed to them in the Loan Agreement.
This Note
is the Note referenced in the Second Amended and Restated Loan Agreement between
Borrower and Lender dated as of December 10, 2001, as amended and restated
as of November 3, 2004, further amended and restated as of October 25, 2006, and
further amended as of the date hereof pursuant to the Payment Agreement and Loan
Amendment between Borrower and Lender dated as of April 27, 2010 (as same may be
amended from time to time, the “Loan Agreement”), and
is entitled to the benefits of, and subject to the restrictions provided under,
the Loan Agreement. The Loan Agreement, among other things, provides
that this Note is secured by, and Borrower has granted a security interest in,
certain of its assets as set forth in the Second Amended and Restated Security
Agreement between Borrower and Lender dated as of October 25, 2006.
In case
an Event of Default shall occur and be continuing and not cured prior to the
expiration of any applicable cure or grace periods set forth in the Loan
Agreement, the unpaid principal amount of, and accrued interest on, this Note
may be declared to be due and payable in the manner and with the effect provided
in the Loan Agreement.
Borrower
hereby waives presentment, demand, notice, protest and all other demands and
notices in connection with the delivery, acceptance, performance and enforcement
of this Note.
This Note
may be voluntarily prepaid, in whole or in part, on the terms and conditions set
forth in the Loan Agreement. Provided that all obligations under the
Loan Agreement have been irrevocably paid in full, the Lender shall, at the
request of Borrower, promptly, and in no event later than ten (10) Business Days
after notice from Borrower, cancel and return this Note to
Borrower.
This Note
shall be governed by and construed in accordance with the law of the State of
Delaware without regard to the conflicts of law rules of such
state.
Lender
and Borrower agree that disputes relating to this Note shall be subject to the
provisions of the Loan Agreement entitled “Internal Review” and “Arbitration”
set forth in Sections 8.14 and 8.15 thereof, respectively.
IN
WITNESS WHEREOF, Borrower has caused this Note to be duly executed by its duly
authorized officer, as of the date first above written.
DISCOVERY
LABORATORIES, INC.
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|
By:
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/s/ John Cooper
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Name:
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John
Cooper
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Title:
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Executive
Vice President and
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Chief
Financial Officer
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