Attached files
file | filename |
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8-K - FORM 8-K - CLINICAL DATA INC | b84085e8vk.htm |
EX-2.1 - EX-2.1 - CLINICAL DATA INC | b84085exv2w1.htm |
EX-99.1 - EX-99.1 - CLINICAL DATA INC | b84085exv99w1.htm |
EX-10.3 - EX-10.3 - CLINICAL DATA INC | b84085exv10w3.htm |
EX-10.4 - EX-10.4 - CLINICAL DATA INC | b84085exv10w4.htm |
EX-10.1 - EX-10.1 - CLINICAL DATA INC | b84085exv10w1.htm |
Exhibit
10.2
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
$988,500 | 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
$988,500 (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 Interest; Payment of Principal and Interest. The outstanding Principal Amount shall bear
interest at the rate of six and one-half percent (6.5%) per annum (computed on the basis of a 365
day year). The Company shall repay the Principal Amount plus interest in twelve (12) monthly
installments commencing on the date that is the last day of the first full month following the
Closing Date and continuing thereafter until the final payment date on December 29, 2011 (the
Maturity Date), all as set forth in greater detail on the payment schedule attached hereto as
Exhibit A.
1.2 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.
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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 monthly payment amounts totaling the decreased
then-outstanding Principal Amount due under this Note.
3. Required Prepayment. 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.
4. Secured Note. The Companys 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 First Note
is hereby agreed by the Company to be senior to any other indebtedness of the
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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.
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]
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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 | |||||||||
1/31/2011 |
$ | 82,375.00 | $ | 5,809.13 | $ | 88,184.13 | ||||||
2/28/2011 |
$ | 82,375.00 | $ | 4,518.21 | $ | 86,893.21 | ||||||
3/31/2011 |
$ | 82,375.00 | $ | 4,547.55 | $ | 86,922.55 | ||||||
5/2/2011 |
$ | 82,375.00 | $ | 4,224.82 | $ | 86,599.82 | ||||||
5/31/2011 |
$ | 82,375.00 | $ | 3,403.33 | $ | 85,778.33 | ||||||
6/30/2011 |
$ | 82,375.00 | $ | 3,080.60 | $ | 85,455.60 | ||||||
8/1/2011 |
$ | 82,375.00 | $ | 2,816.55 | $ | 85,191.55 | ||||||
8/31/2011 |
$ | 82,375.00 | $ | 2,200.43 | $ | 84,575.43 | ||||||
9/30/2011 |
$ | 82,375.00 | $ | 1,760.34 | $ | 84,135.34 | ||||||
10/31/2011 |
$ | 82,375.00 | $ | 1,364.27 | $ | 83,739.27 | ||||||
11/30/2011 |
$ | 82,375.00 | $ | 880.17 | $ | 83,255.17 | ||||||
12/29/2011 |
$ | 82,375.00 | $ | 425.42 | $ | 82,800.42 | ||||||
Total |
$ | 988,500.00 | $ | 35,030.82 | $ | 1,023,530.82 | ||||||
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