SECURED PROMISSORY NOTE
||June 13, 2011|
RECEIVED, the undersigned, ACCENTIA BIOPHARMACEUTICALS, INC., a Florida corporation (the Borrower), with a mailing address of 324 South Hyde Park Avenue, Suite 350, Tampa, Florida 33606, hereby promises to pay to the order of
CORPS REAL, LLC, an Illinois limited liability company (the Lender), with a mailing address of 1602 W. Kimmel Street, Marion, Illinois 62929, up to the maximum principal amount of Four Million Dollars ($4,000,000.00)
based on the amount advanced by Lender to borrower under this Secured Promissory Note (the Principal Amount), together with interest on the unpaid Principal Amount outstanding from time to time at the rate or rates hereafter
specified and on any and all other sums which may be owing to the Lender by the Borrower hereunder.
Lender agrees to fund this Note on the
||One Million Dollars ($1,000,000.00) on the date of this Note; |
||An additional One Million Dollars ($1,000,000.00) on August 1, 2011; |
||An additional One Million Dollars ($1,000,000.00) on November 15, 2011; and |
||An additional One Million Dollars ($1,000,000.00) on January 15, 2012. |
Subject to Lenders written consent, which may be granted or withheld in the sole discretion of Lender, Borrower may request the fundings described in (C) and (D) above at earlier dates
based on business requirements.
The following terms shall apply to this Note:
1. Security and Priority. As security for payment of the Obligations (as defined below) under this Note, the Borrower and the
Lender have entered into that certain Security Agreement of even date herewith (the Security Agreement). The Security Agreement and this Note are sometimes hereinafter referred to as the Loan Documents. The
Borrower and the Lender have agreed that all Obligations under this Note will be secured by a first security interest in the Collateral (as that term is defined in the Security Agreement) of the Borrower, and the liens and security interests granted
to the Lender will be senior to all liens and security interests of all other parties in the Collateral.
Rate. Interest shall accrue and be payable on the outstanding Principal Amount at a fixed rate of interest equal to five percent (5%) per annum. Interest shall be calculated on the basis of a year of 360 days applied to the actual days on
which there exists an unpaid balance under this Note. Interest shall begin accruing on the date of this Note, and shall be payable on the Conversion Date or the Forced Conversion Date (as to that principal amount then being converted), on a
quarterly basis in arrears (as to that principal amount then outstanding) (each such date a Quarterly Interest Payment Date) and on the Maturity Date (each such date, an Interest Payment Date) (if any Interest Payment
Date is not a business day, then the applicable payment shall be due on the next succeeding business day). Any interest payment due on any Interest Payment Date shall be paid in cash, or, at the election of the Borrower, shall be paid in duly
authorized, validly issued, fully paid and non-assessable shares of Common Stock determined by dividing the amount of interest then due under this Note by the average market price (volume weighted average price) for the ten trading days immediately
preceding the end of the interest period.
3. Term; Maturity Date. For purposes of this Note and the Security Agreement, the
Maturity Date shall be June 13, 2016. For the avoidance of doubt, this Note is a balloon promissory note that requires that all indebtedness be paid in full on the Maturity Date.
4. Repayment Extension. If any payment of principal or interest shall be due on a Saturday, Sunday or any other day on which
banking institutions in the State of Florida are required or permitted to be closed, such payment shall be made on the next succeeding business day and such extension of time shall be included in computing interest under this Note.
5. Manner and Application of Payments. All payments due hereunder shall be paid in lawful money of the United States of America
which shall be legal tender in payment of all debts and dues, public and private, in immediately available funds, without offset, deduction or recoupment. Any payment by check or draft shall be subject to the condition that any receipt issued
therefore shall be ineffective unless the amount due is actually received by the Lender. Each payment shall be applied first, to the payment of any and all costs, fees and expenses incurred by or payable to the Lender in connection with the
collection or enforcement of this Note; second, to the payment of all accrued and unpaid interest hereunder; and third, to the payment of the unpaid Principal Amount, or in any other manner which the Lender may, in its sole discretion, elect from
time to time.
6. A. Option to Convert. At the option of the Lender, at any time prior to the earlier to occur of
(a) the date of the prepayment of this Note in full or (b) the Maturity Date of this Note, the Lender, in its discretion, may convert all or a portion of the outstanding balance of this Note (including any accrued and unpaid interest under
this Note) into shares of the common stock, par value $.001 per share (the Common Stock), of the Borrower at a conversion rate equal to $0.34 per share (the Conversion Price). If the Lender wishes to make a conversion,
the Lender shall give notice of such election by delivering a written notice (the Conversion Notice) to the Borrower and such Conversion Notice shall provide a breakdown in reasonable detail of the principal and accrued and unpaid
interest thereon outstanding under this Note that are being converted and the calculation of the number of shares of Common Stock issuable to the Lender on conversion. The number of shares of Common Stock issuable to the Lender upon any conversion
(the Conversion Shares) shall be equal to (a) an amount equal to the aggregate portion of the principal and accrued and unpaid interest thereon outstanding under this Note being converted, divided by (b) the Conversion
Price. In the case of the exercise of the conversion rights set forth herein, the conversion privilege shall be deemed to have been exercised and the Conversion Shares issuable upon such conversion shall be deemed to have been issued upon the date
of receipt by the Borrower of the Conversion Notice. If the Lender has delivered a Conversion Notice, the Borrower shall make the appropriate reduction to the Principal Amount and accrued and unpaid interest thereon outstanding under this Note as
entered in its register and its records. The kind of shares or other securities to be issued upon conversion as determined pursuant to this Section 6 shall be subject to adjustment from time to time upon the occurrence of certain events during
the period that this conversion right remains outstanding, as follows: if the Borrower at any time shall, by reclassification or otherwise, change the Common Stock into the same or a different number of securities of any class or classes, this Note,
as to the unpaid Principal Amount and the accrued and unpaid interest thereon, shall thereafter be deemed to evidence the right to purchase an adjusted number of such securities and kind of securities as would have been issuable as the result of
such change with respect to the Common Stock (i) immediately prior to or (ii) immediately after such reclassification or other change at the sole election of the Lender. The Conversion Shares shall be subject to the provisions of Rule 144.
B. Forced Conversion. Notwithstanding anything herein to the contrary, if at
any time after the issuance date of this Note, the Companys common stock trades at $2.00 per share for ten (10) consecutive trading days (such period, the Threshold Period), then the Borrower may, within three
(3) Trading Days after the end of any such Threshold Period, deliver a written notice to the Lender (a Forced Conversion Notice and the date such notice is delivered to the Lender, the Forced Conversion Notice
Date and such conversion, the Forced Conversion) to cause the Lender to convert all or part of the then outstanding principal amount of this Note at the then Conversion Price, plus accrued but unpaid interest, it being
agreed that the Conversion Date for purposes of Section 6 (B) shall be deemed to occur on the third trading day following the Forced Conversion Notice Date (such third trading day, the Forced Conversion
C. Follow-on Financings. No follow-on equity linked financing (excluding strategic business
relationships involving the sale of equity to a business entity engaged in the pharmaceutical or biotech business, options under the Incentive Stock Option Plans or stock acquisition rights outstanding under the Plan of Reorganization on the date
hereof) will be completed during the 12 month period following the Date hereof at a price per share that is less than the Conversion Price hereunder without the full Accentia Board first conferring with Mr. Ronald E. Osman and without
Lender being offered the first right of refusal to provide or to participate in such equity linked financing.
D. Exercise Limitations. The Company shall not effect any
conversion of this Note, and a Holder shall not have the right to exercise any portion of this Note, to the extent that after giving effect to such issuance after conversion as set forth on the applicable Notice of Conversion, the Holder (together
with the Holders Affiliates, and any other person or entity acting as a group together with the Holder or any of the Holders Affiliates), would beneficially own in excess of the Beneficial Ownership Limitation (as defined
below). For purposes of the foregoing sentence, the number of shares of Common Stock beneficially owned by the Holder and its Affiliates shall include the number of shares of Common Stock issuable upon conversion of this Note with respect to
which such determination is being made, but shall exclude the number of shares of Common Stock which would be issuable upon (A) conversion of the remaining, balance of this Note beneficially owned by the Holder or any of its Affiliates and
(B) conversion of the unexercised or nonconverted portion of any other securities of the Company (including, without limitation, any other Common Stock Equivalents) subject to a limitation on conversion or exercise analogous to the limitation
contained herein beneficially owned by the Holder or any of its affiliates. Except as set forth in the preceding sentence, for purposes of this Section, beneficial ownership shall be calculated in accordance with Section 13(d) of the
Exchange Act and the rules and regulations promulgated thereunder, it being acknowledged by the Holder that the Company is not representing to the Holder that such calculation is in compliance with Section 13(d) of the Exchange Act and the
Holder is solely responsible for any schedules required to be filed in accordance therewith. To the extent that the limitation contained in this Section applies, the determination of whether this Note is convertible (in relation to other securities
owned by the Holder together with any Affiliates) and of which portion of this Note is convertible shall be in the sole discretion of the Holder, and the submission of a Notice of Conversion shall be deemed to be the Holders determination of
whether this Note is convertible (in relation to other securities owned by the Holder together with any Affiliates) and of which portion of this Note is convertible, in each case subject to the Beneficial Ownership Limitation, and the Company shall
have no obligation to verify or confirm the accuracy of such determination. In addition, a determination as to any group status as contemplated above shall be determined in accordance with Section 13(d) of the Exchange Act and the rules and
regulations promulgated thereunder. For purposes of this Section, in determining the number of outstanding shares of Common Stock, a Holder may rely on the number of outstanding shares of Common Stock as reflected in (x) the Companys most
recent periodic or annual report, as the case may be, (y) a more recent public announcement by the Company or (z) any other notice by the Company or the Companys Transfer Agent setting forth the number of shares of Common Stock
outstanding. Upon the written or oral request of a Holder, the Company shall within two Trading Days confirm orally and in writing to the Holder the number of shares of Common Stock then outstanding. In any case, the number of outstanding
shares of Common Stock shall be determined after giving effect to the conversion or exercise of securities of the Company, including this Note, by the Holder or its Affiliates since the date as of which such number of outstanding shares of Common
Stock was reported. The Beneficial Ownership Limitation shall be 9.99% of the number of shares of the Common Stock outstanding immediately after giving effect to the issuance of shares of Common Stock issuable upon conversion of
this Note. The Holder, upon not less than 61 days prior notice to the Company, may increase or decrease the Beneficial Ownership Limitation provisions of this Section, provided that the Beneficial Ownership Limitation in no event exceeds 9.99%
of the number of shares of the Common Stock outstanding immediately after giving effect to the issuance of shares of Common Stock upon conversion of this Note held by the Holder and the provisions of this Section shall continue to apply. Any such
increase or decrease will not be effective until the 61st
day after such notice is delivered to the Company. The provisions of this paragraph shall be construed and implemented in a manner otherwise than in strict conformity with the terms of this Section to correct this paragraph (or any portion hereof)
which may be defective or inconsistent with the intended Beneficial Ownership Limitation herein contained or to make changes or supplements necessary or desirable to properly give effect to such limitation. The limitations contained in this
paragraph shall apply to a successor holder of this Note.
7. Prepayment. The Borrower may prepay this Note in
full at any time without penalty, provided that the Borrower must provide ten (10) days advance written notice to the Lender of the date for any such prepayment during which period the Lender may exercise its rights to convert into shares of
Common Stock hereunder.
8. Obligations. The term Obligations shall mean the full
and punctual observance and performance of all duties, covenants and responsibilities due to the Lender by the Borrower under this Note, including all indebtedness and liabilities of the Borrower to the Lender for the payment of money extending to
the Principal Amount and all interest, fees, late charges, expense payments, liquidation costs, and expenses provided in this Note. The Lender and the Borrower acknowledge and agree that the Principal Amount under this Note shall equal the amount of
actual advances made by the Lender to the Borrower hereunder.
9. Events of Default. The occurrence of any one
or more of the following events shall constitute an Event of Default under this Note:
||the failure of the Borrower to pay any sum due under this Note when due, whether by demand or otherwise, and such sum remains unpaid for five (5) business days
after the due date; and |
||any other Event of Default described in the Security Agreement. |
10. Rights and Remedies Upon Default. Upon the occurrence of an Event of Default hereunder, the Lender, in the Lenders sole discretion and with prior written notice to the Borrower, may:
(a) declare the entire outstanding Principal Amount, together with all accrued interest and all other sums due under this Note, to be immediately due and payable, and the same shall thereupon become immediately due and payable without protest,
presentment, demand or notice, which are hereby expressly waived; (b) exercise its right of setoff against any money, funds, or credits of the Borrower now or at any time hereafter in the possession of, in transit to or from, under the control
or custody of or on deposit with, the Lender or any affiliate of the Lender in any capacity whatsoever; and (c) exercise any or all rights, powers and remedies provided for in the Loan Documents or now or hereafter existing at law, in equity,
by statute or otherwise.
11. Remedies Cumulative. Each right, power and remedy of the Lender hereunder, under the Loan
Documents or now or hereafter existing at law, in equity, by statute or otherwise shall be cumulative and concurrent, and the exercise or beginning of the exercise of any one or more of them shall not preclude the simultaneous or later exercise by
the Lender of any or all such other rights, powers or remedies. No failure or delay by the Lender to insist upon the strict performance of any one or more provisions of this Note or of the Loan Documents or to exercise any right, power or remedy
consequent upon a default hereunder shall constitute a waiver thereof or preclude the Lender from exercising any such right, power or remedy. By accepting full or partial payment after the due date of any amount of principal of or interest on this
Note, or other amounts payable on demand, the Lender shall not be deemed to have waived the right either to require prompt payment when due and payable of all other amounts of principal of or interest on this Note or other amounts payable on demand,
or to exercise any rights and remedies available to it in order to collect all such other amounts due and payable under this Note.
12. Collection Expenses. The Borrower shall pay any and all issue taxes, documentary
stamp taxes, and other taxes that may be payable in respect of the issuance or delivery of this Note. If this Note is placed in the hands of an attorney for collection following the occurrence of an Event of Default hereunder, the Borrower agrees to
pay to the Lender upon demand all costs and expenses, including, without limitation, all attorneys fees and court costs incurred by the Lender in connection with the enforcement or collection of this Note (whether or not any action has been
commenced by the Lender to enforce or collect this Note). The obligation of the Borrower to pay all such costs and expenses shall not be merged into any judgment by confession against the Borrower. All of such costs and expenses shall bear interest
at the rate of interest provided herein, from the date of payment by the Lender until repaid in full.
13. Maximum Rate of
Interest. Notwithstanding any provision of this Note or the Loan Documents to the contrary, the Borrower shall not be obligated to pay interest pursuant to this Note in excess of the maximum rate of interest permitted by the laws of any state
determined to govern this Note or the laws of the United States applicable to loans in such state. If any provisions of this Note shall ever be construed to require the payment of any amount of interest in excess of that permitted by applicable law,
then the interest to be paid pursuant to this Note shall be held subject to reduction to the amount allowed under applicable law and any sums paid in excess of the interest rate allowed by law shall be applied in reduction of the principal balance
outstanding pursuant to this Note. The Borrower acknowledges that it has been contemplated at all times by the Borrower that the laws of the State of Illinois will govern the maximum rate of interest that it is permissible for the Lender to charge
the Borrower pursuant to this Note.
14. Choice of Law. This Note shall be governed by and construed in accordance with
the laws of the State Illinois without reference to principles of choice of law or conflict of law thereunder. Whenever possible, each provision of this Note shall be interpreted to be effective and valid under applicable law. If any provision of
this Note is prohibited by or invalid under applicable law, the provision shall be ineffective only to the extent of the prohibition or invalidity, without invalidating the remainder of the provision or the other remaining provisions of this Note.
15. Notices. All notices, requests, demands, claims, and other communications hereunder shall be in writing. Any
notice, request, demand, claim, or other communication hereunder shall be deemed duly given if (and then two business days after) it is sent by registered or certified mail, return receipt requested, postage prepaid, and addressed to the addresses
set forth in the first paragraph of this Note. Any party may send any notice, request, demand, claim, or other communication hereunder to the intended recipient at the address set forth above using any other means (including personal delivery,
expedited courier, messenger service, telecopy, telex, ordinary mail, or electronic mail), but no such notice, request, demand, claim, or other communication shall be deemed to have been duly given unless and until it actually is received by the
intended recipient. Any party may change the address to which notices, requests, demands, claims, and other communications hereunder are to be delivered by giving the other party notice in the manner herein set forth.
16. Jurisdiction. THE BORROWER HEREBY CONSENTS AND AGREES THAT THE STATE AND/OR
FEDERAL COURTS LOCATED IN THE STATE OF ILLINOIS SHALL HAVE EXCLUSIVE JURISDICTION TO HEAR AND DETERMINE ANY CLAIMS OR DISPUTES BETWEEN THE BORROWER, ON THE ONE HAND, AND THE LENDER, ON THE OTHER HAND, PERTAINING TO THIS NOTE OR TO ANY MATTER ARISING
OUT OF OR RELATED TO THIS NOTE; PROVIDED, THAT THE BORROWER ACKNOWLEDGES THAT ANY APPEALS FROM THOSE COURTS MAY HAVE TO BE HEARD BY A COURT LOCATED OUTSIDE OF THE STATE OF ILLINOIS; AND FURTHER PROVIDED, THAT NOTHING IN THIS
NOTE SHALL BE DEEMED OR OPERATE TO PRECLUDE THE LENDER FROM BRINGING SUIT OR TAKING OTHER LEGAL ACTION IN ANY OTHER JURISDICTION TO COLLECT THE OBLIGATIONS, TO REALIZE ON THE COLLATERAL OR ANY OTHER SECURITY FOR THE OBLIGATIONS, OR TO ENFORCE A
JUDGMENT OR OTHER COURT ORDER IN FAVOR OF THE LENDER. THE BORROWER EXPRESSLY SUBMITS AND CONSENTS IN ADVANCE TO SUCH JURISDICTION IN ANY ACTION OR SUIT COMMENCED IN ANY SUCH COURT, AND THE BORROWER HEREBY WAIVES ANY OBJECTION WHICH IT MAY HAVE BASED
UPON LACK OF PERSONAL JURISDICTION, IMPROPER VENUE OR FORUM NON CONVENIENS. THE BORROWER AND THE LENDER HEREBY WAIVE PERSONAL SERVICE OF THE SUMMONS, COMPLAINT AND OTHER PROCESS ISSUED IN ANY SUCH ACTION OR SUIT AND AGREE THAT SERVICE OF SUCH
SUMMONS, COMPLAINT AND OTHER PROCESS MAY BE MADE BY REGISTERED OR CERTIFIED MAIL ADDRESSED TO THE BORROWER OR THE LENDER, AS APPLICABLE, AT THE ADDRESS SET FORTH IN THE FIRST PARAGRAPH OF THIS NOTE AND THAT SERVICE SO MADE SHALL BE DEEMED COMPLETED
UPON THE EARLIER OF THE BORROWERS OR THE LENDERS, AS APPLICABLE, ACTUAL RECEIPT THEREOF OR THREE (3) DAYS AFTER DEPOSIT IN THE U.S. MAIL, PROPER POSTAGE PREPAID.
17. Miscellaneous. The section headings of this Note are for convenience only, and shall not limit or otherwise affect any of the
terms hereof. This Note constitutes the entire agreement between the parties with respect to its subject matter and supersedes all prior letters, representations or agreements, oral or written, with respect thereto. No modification, release or
waiver of this Note shall be deemed to be made by the Lender unless in writing signed by the Lender, and each such waiver, if any, shall apply only with respect to the specific instance involved. This Note shall inure to the benefit of and be
enforceable by the Lender and shall be binding upon and enforceable against the Borrower and the Borrowers successors and assigns. Whenever used herein, the singular number shall include the plural, the plural the singular, and the use of the
masculine, feminine or neuter gender shall include all genders. In the event any one or more of the provisions of this Note shall for any reason be held to be invalid, illegal, or unenforceable, in whole or in part or in any respect, or in the event
that any one or more of the provisions of this Note operates or would prospectively operate to invalidate this Note, then and in any of those events, only such provision or provisions shall be deemed void and shall not affect any other provision of
this Note and the remaining provisions of this Note shall remain operative and in full force and effect and shall in no way be affected, prejudiced, or disturbed thereby.
[Signature Page to Follow]
IN WITNESS WHEREOF, the Borrower has duly executed this Note as of the day and year
first hereinabove set forth.
|ACCENTIA BIOPHARMACEUTICALS, INC.,|
|a Florida corporation|
/s/ Samuel S. Duffey
||Samuel S. Duffey, Esq.|
||President and General Counsel|