Attached files
file | filename |
---|---|
8-K - Precipio, Inc. | v207089_8k.htm |
EX-4.2 - Precipio, Inc. | v207089_ex4-2.htm |
EX-3.1 - Precipio, Inc. | v207089_ex3-1.htm |
EX-4.5 - Precipio, Inc. | v207089_ex4-5.htm |
EX-2.1 - Precipio, Inc. | v207089_ex2-1.htm |
EX-4.3 - Precipio, Inc. | v207089_ex4-3.htm |
EX-4.1 - Precipio, Inc. | v207089_ex4-1.htm |
EX-2.2 - Precipio, Inc. | v207089_ex2-2.htm |
EX-99.1 - Precipio, Inc. | v207089_ex99-1.htm |
EX-10.1 - Precipio, Inc. | v207089_ex10-1.htm |
EX-10.2 - Precipio, Inc. | v207089_ex10-2.htm |
EX-10.3 - Precipio, Inc. | v207089_ex10-3.htm |
Exhibit 4.4
THIS
SECURED 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.
SECURED
PROMISSORY NOTE
$8,639,650
|
December
29, 2010
|
For Value
Received, Transgenomic,
Inc., a Delaware corporation (the “Company”),
hereby unconditionally promises to pay to the order of PGxHealth,
LLC, a Delaware limited liability company (together with its successors
or assigns, the “Lender”),
in lawful money of the United States and in immediately available funds, the
principal amount of $8,639,650 (the “Principal
Amount”), together with accrued and unpaid interest thereon calculated as
set forth in Section 1 (collectively, the “Note
Balance”), which shall be due and payable on the dates and in the manner
set forth in this Secured Promissory Note (this “Note”).
This Note
has been issued to the Lender pursuant to that certain Asset Purchase Agreement,
dated as of November 29, 2010, by and among the Lender, Clinical Data, Inc., a
Delaware corporation, and the Company, as amended by that certain Amendment to
Asset Purchase Agreement, dated December 29, 2010, by and among Lender, Clinical
Data, Inc. and the Company (the “Purchase
Agreement”). Capitalized terms used and not otherwise defined
herein are intended to have the meanings given to them in the Purchase
Agreement.
1.
Installment
Payments.
1.1 Principal. The
Company shall repay the outstanding Principal Amount in substantially equal
quarterly installments commencing on the date that is eighteen (18) months
following the Closing Date and continuing thereafter until the final payment
date on December 29, 2013 (the “Final Payment
Date”), all as set forth in greater detail on the payment schedule
attached hereto as Exhibit
A.
1.2 Interest. The
outstanding Principal Amount shall bear interest at the rate of ten percent
(10%) per annum, from the date hereof until paid in full. The
aggregate amount of interest due under this Note pursuant to this Section 2
shall be calculated with respect to any given period by multiplying the
then-outstanding Principal Amount by the product of: (i) the number of days in
such period; multiplied by (ii) the applicable daily interest rate, calculated
on the basis of a 365-day year. All interest hereunder shall be due
and payable in arrears on a quarterly basis commencing on the date that is three
(3) months following the Closing Date and continuing until the Final Payment
Date, all as set forth in greater detail on the payment schedule attached hereto
as Exhibit
A
1
1.3 Business Days. Whenever
payment of principal of, or interest on, this Note shall be due on a date that
is not a Business Day, the date for payment thereof shall be the next succeeding
Business Day and interest due on the unpaid principal shall accrue during such
extension and shall be payable on such succeeding Business
Day. “Business
Day” means any day except a Saturday, Sunday or other days on which
commercial banks in Boston, Massachusetts are required or authorized by law to
close.
2. Method For
Payments; Optional Prepayments. All payments under this Note
shall be made in lawful money of the United States by wire transfer or other
form of immediately available funds acceptable to the Lender at the address of
the Lender set forth on the signature page hereof or at such other place as the
Lender shall have designated in writing. All or any portion of the
Note Balance may be repaid by the Company at any time prior to the Maturity
Date, without penalty; provided, however, that in the event of any such
prepayment in an amount less than the amount of the then-outstanding Note
Balance, the payment schedule attached hereto as Exhibit A shall be
appropriately amended to reflect adjusted quarterly payment amounts totaling the
decreased then-outstanding Principal Amount due under this Note.
3. Required
Prepayment.
(a) Notwithstanding
anything to the contrary set forth herein, in the event of a closing of a
Qualified Financing (as defined below) prior to the repayment in full of the
Note Balance, the Company shall, within five (5) business days of such closing,
pay to the Lender in respect of the then-outstanding Note Balance an amount
equal to the lesser of: (a) twenty-five percent (25%) of the gross proceeds
received by the Company pursuant to such Qualifying Financing; and (b) the
then-outstanding Note Balance. In the event that any such prepayment
is for an amount less than the amount of the then-outstanding Note Balance, the
payment schedule attached hereto as Exhibit A shall be
appropriately amended to reflect adjusted quarterly payment amounts totaling the
decreased then-outstanding Principal Amount due under this Note. As
used in this Agreement, the term “Qualified
Financing” shall mean any equity-only financing that involves the receipt
by the Company of net proceeds of not less than $6,000,000 (whether in a single
or a series of transactions), excluding any amounts received in connection with
the conversion of any then-outstanding indebtedness or securities of the
Company. For the avoidance of doubt: (x) if there are multiple
closings in connection with a Qualified Financing, such Qualified Financing
shall not be deemed to have occurred for purposes of this Note until such time
as the aggregate net proceeds received by the Company in connection with the
sale of equity securities pursuant to the Qualified Financing first equal or
exceed $6,000,000; and (y) in no event shall the sale or issuance by the Company
of any debt securities, regardless of the amount of capital raised by the
Company pursuant to any such sale or issuance, be deemed to constitute a
Qualified Financing (or any part thereof).
(b) Notwithstanding
anything to the contrary set forth herein, in the event of a sale of all or
substantially all of the assets of the Company, whether by merger, stock sale,
asset sale, exclusive license, or otherwise, prior to the repayment in full of
the Note Balance (the “Sale of the
Company”), the Company shall, within five (5) business days of such
closing, pay to the Lender in respect of the then-outstanding Note Balance an
amount equal to the lesser of: (a) one hundred percent (100%) of the
proceeds, net of any financial advisor and legal fees, received by the Company
pursuant to such Sale of the Company; and (b) the then-outstanding Note
Balance. In the event that any such prepayment is for an amount less
than the amount of the then-outstanding Note Balance, the payment schedule
attached hereto as Exhibit
A shall be appropriately amended to reflect adjusted quarterly payment
amounts totaling the decreased then-outstanding Principal Amount due under this
Note.
2
4. Secured
Note. The Company's obligations under this Note are secured by
the collateral identified and described as security therefor in the Security
Agreement, as executed and delivered by the Company to the Lender as of the date
hereof (the “Security
Agreement”). The Company shall not, directly or indirectly,
create, permit or suffer to exist, and shall defend the collateral against and
take such other action as is necessary to remove any lien on the collateral, or
any portion thereof, except as permitted pursuant to the Security
Agreement.
5. Event of
Default. Notwithstanding anything to the contrary set forth
herein, the entire unpaid Note Balance due hereunder shall be immediately due
and payable (and collectible by the Lender pursuant to any applicable law)
if: (a) the Company fails to pay timely any portion of the Note
Balance due under this Note on the date the same becomes due and payable (as set
forth on Exhibit A) or
within three (3) business days thereafter; (b) the Company makes any assignment
for the benefit of its creditors; (c) the Company files (or is the subject of
the filing of) any petition or complaint pursuant to any federal or state
bankruptcy, reorganization, insolvency or moratorium law or any other law
seeking (i) the appointment of a receiver or trustee for any of its assets, (ii)
the adjudication of the Company as bankrupt or insolvent, (iii) an “order for
relief” under any such statute, or (iv) a reorganization of or a plan of
arrangement for the Company, provided in each case where the Company is not the
filing party that such petition or complaint is not dismissed within sixty (60)
days after the filing thereof; or (d) any “Event of Default” as defined in the
Security Agreement occurs (each of the foregoing being referred to herein as an
“Event of
Default”).
6. Nature of
Obligations. The indebtedness evidenced by this Note and the
Second Note is hereby agreed by the Company to be senior to any other
indebtedness of the Company, except to the extent expressly consented to in
writing by the Lender, which consent may be given, withheld or conditioned in
its sole discretion.
7. Waiver. The
Company waives presentment and demand for payment, notice of dishonor, protest
and notice of protest of this Note, and shall pay all costs of collection when
incurred, including, without limitation, reasonable attorneys’ fees, costs and
other expenses.
8. Governing
Law. This Note shall be governed by, and construed and
enforced in accordance with, the laws of the State of Delaware, excluding
conflict of laws principles that would cause the application of laws of any
other jurisdiction.
9. Lost
Note. In the event of any loss of this Note by the Lender, the
Company shall execute a replacement promissory note in favor of the Lender on
the same exact terms and conditions of this Note upon the receipt by the Company
of an affidavit of lost note and indemnity, in form and substance reasonably
satisfactory to the Company, duly executed and delivered by the
Lender.
3
10. Assignment. The
rights and obligations of the Company and the Lender shall inure to the benefit
of and be binding on any successors of the parties and shall extend to any
holder hereof.
11. Amendments. None of the terms
or provisions of this Note may be waived, altered, modified or amended except by
an instrument in writing, duly executed by the Company and the
Lender.
12. Failure to
Exercise Rights. No failure or
delay on the part of the Lender 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.
13. Counterparts. This
Note may be executed in two or more counterparts, each of which shall be deemed
an original, but all of which together shall constitute one and the same
instrument.
[Remainder
of Page Intentionally Left Blank]
4
In Witness
Whereof, the Company has caused this Secured
Promissory Note to be issued on the day and year first written
above.
COMPANY:
|
||
Transgenomic,
Inc.
|
||
By:
|
/s/ Craig J. Tuttle
|
|
Craig
J. Tuttle
|
||
President
and Chief Executive Officer
|
||
LENDER:
|
||
PGxHealth,
LLC
|
||
By: PGx Health
Holdings, Inc.
|
||
Its: Sole
Member
|
||
By:
|
/s/ Caesar J. Belbel
|
|
Caesar
J. Belbel
|
||
Executive
Vice President and Chief Legal Officer
|
||
Address:
Five Science Park
|
||
New
Haven,
CT 06511
|
[Signature
Page to Secured Promissory Note]
EXHIBIT
A
Amount Due
|
||||||||||||
Payment Due Date
|
Principal
|
Interest Accrued
|
Total
|
|||||||||
3/29/2011
|
$ | 0.00 | $ | 213,032.47 | $ | 213,032.47 | ||||||
6/29/2011
|
$ | 0.00 | $ | 217,766.52 | $ | 217,766.52 | ||||||
9/29/2011
|
$ | 0.00 | $ | 217,766.52 | $ | 217,766.52 | ||||||
12/29/2011
|
$ | 0.00 | $ | 215,399.49 | $ | 215,399.49 | ||||||
3/29/2012
|
$ | 0.00 | $ | 215,399.49 | $ | 215,399.49 | ||||||
6/29/2012
|
$ | 1,234,235.71 | $ | 217,766.52 | $ | 1,452,002.23 | ||||||
10/1/2012
|
$ | 1,234,235.71 | $ | 190,714.78 | $ | 1,424,950.49 | ||||||
12/31/2012
|
$ | 1,234,235.71 | $ | 153,856.78 | $ | 1,388,092.50 | ||||||
3/29/2013
|
$ | 1,234,235.71 | $ | 119,027.66 | $ | 1,353,263.38 | ||||||
7/1/2013
|
$ | 1,234,235.71 | $ | 95,357.39 | $ | 1,329,593.10 | ||||||
9/30/2013
|
$ | 1,234,235.71 | $ | 61,542.71 | $ | 1,295,778.43 | ||||||
12/30/2013
|
$ | 1,234,235.71 | $ | 30,771.36 | $ | 1,265,007.07 | ||||||
Total
|
$ | 8,639,650.00 | $ | 1,948,401.69 | $ | 10,588,051.69 |