Attached files
file | filename |
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S-1/A - PRE-EFFECTIVE AMENDMENT TO FORM S-1 - CorMedix Inc. | v169969_s1a.htm |
EX-10.14 - EXHIBIT 10.14 - CorMedix Inc. | v169969_10-14.htm |
EX-4.8 - EXHIBIT 4.8 - CorMedix Inc. | v169969_ex4-8.htm |
EX-10.2 - EXHIBIT 10.2 - CorMedix Inc. | v169969_ex10-2.htm |
EX-23.1 - EXHIBIT 23.1 - CorMedix Inc. | v169969_ex23-1.htm |
EX-10.5 - EXHIBIT 10.5 - CorMedix Inc. | v169969_ex10-5.htm |
EX-10.1 - EXHIBIT 10.1 - CorMedix Inc. | v169969_ex10-1.htm |
EX-10.7 - EXHIBIT 10.7 - CorMedix Inc. | v169969_ex10-7.htm |
EX-4.10 - EXHIBIT 4.10 - CorMedix Inc. | v169969_ex4-10.htm |
EX-10.13 - EXHIBIT 10.13 - CorMedix Inc. | v169969_ex10-13.htm |
Exhibit 4.9
THIS NOTE
AND THE SECURITIES ISSUABLE UPON CONVERSION HEREOF HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”),
APPLICABLE STATE SECURITIES LAWS, OR APPLICABLE LAWS OF ANY FOREIGN
JURISDICTION. THIS NOTE AND SUCH SECURITIES HAVE BEEN ACQUIRED FOR
INVESTMENT AND NOT WITH A VIEW TO DISTRIBUTION OR RESALE, AND MAY NOT BE
OFFERED, SOLD, PLEDGED, HYPOTHECATED OR OTHERWISE TRANSFERRED IN THE ABSENCE OF
AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT AND ANY APPLICABLE
STATE SECURITIES LAWS AND IN THE ABSENCE OF COMPLIANCE WITH APPLICABLE LAWS OF
ANY FOREIGN JURISDICTION, OR AN OPINION OF COUNSEL SATISFACTORY TO THE COMPANY
THAT SUCH REGISTRATION IS NOT REQUIRED AND SUCH FOREIGN JURISDICTION LAWS HAVE
BEEN SATISFIED.
CORMEDIX
INC.
AMENDED
AND RESTATED
FUTURE
ADVANCE PROMISSORY NOTE
Summit,
NJ
$169,729.45
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September
30, 2009
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Recitals
A. In
consideration of certain services provided by Paramount Biosciences, LLC (“PBS”) to CorMedix
Inc., a Delaware corporation (the “Company”), the
Company made that certain FUTURE ADVANCE PROMISSORY NOTE, dated as of July 28,
2006 and amended on June 15, 2007 (as amended, the “Existing Promissory
Note”) in favor of PBS.
B. As of
the date hereof, the unpaid principal balance of the Existing Promissory Note
was $165,000.00, and the amount of accrued and unpaid interest thereon was
$729.45, including accrued and unpaid interest, was outstanding under the
Existing Promissory Note.
C. Each
party desires to add the entire amount of such accrued and unpaid interest to
the principal balance of the Existing Promissory Note and to amend and restate
the Existing Promissory Note on the terms and subject to the conditions
contained herein.
Agreements
1. Principal and
Interest
The Company, for value received, hereby
promises to pay to the order of PBS, or its assigns (“Holder”), in lawful
money of the United States of America at the address for notices to Holder set
forth in the applicable Purchase Agreement (as defined below) (or such other
address as Holder shall provide to the Company in writing pursuant hereto), the
principal amount of One Hundred Sixty Nine Thousand Seven Hundred Twenty Nine
dollars and Forty Five cents ($169,729.45), together with interest as set forth
below.
1
The Company promises to pay interest on
the unpaid principal amount from the date hereof until such principal amount is
paid in full at the rate of eight percent (8%), or such lesser rate as shall be
the maximum rate allowable under applicable law. Interest from the
date hereof shall be computed on the basis of a 360-day year of twelve 30-day
months, shall compound annually and shall be accrued and added to principal on
an annual basis. Unless converted, all unpaid principal and unpaid
accrued interest on this promissory note (this “Note”) shall be due
and payable on July 31, 2010; provided, however, that upon an
Event of Default (as defined herein), the interest rate on this Note shall be
increased to twelve percent (12%) per annum during the term of the default. For
purposes of this Note, an “Event of Default”
shall occur if (i) the Company shall default in the payment on this Note, when
and as the same shall become due and payable; or (ii) the Company shall default
in the due observance or performance of any material covenant, condition or
agreement on the part of the Company contained in this Note, and any such
default shall continue for a period of five (5) business days after the Company
receives written notice thereof.
This Note shall rank pari passu in
right of payment with all other existing indebtedness of the Company, including
(a) the future advance promissory note between the Company and The Lindsay A.
Rosenwald Family Trusts Dated December 15, 2000, dated August 11, 2006, as
amended on June 15, 2007 and July 22, 2008 and amended and restated on the date
hereof (as amended, the “Trusts Note”), (b)
the series of convertible promissory notes issued by the Company in connection
with an offering described in the Company’s Confidential Offering Memorandum
dated June 15, 2007 and Supplement No. 1 thereto dated August 14, 2007 (such
notes, as amended to date, shall be collectively referred to as the “First Bridge Notes”),
(c) the series of convertible promissory notes issued by the Company in
connection with an offering described in the Company’s Confidential Offering
Memorandum dated August 5, 2008 (such notes, as amended to date, shall be
collectively referred to as the “Second Bridge Notes”
and collectively with the First Bridge Notes, the “Bridge Notes”), and
(d) the convertible promissory note in the principle amount of $1,000,000 dated
as of April 30, 2009 issued by the Company to Galenica Ltd., on terms
substantially the same as the Bridge Notes (the “Galenica
Note”). No consent of the Holder will be required for
issuances by the Company of unsecured indebtedness that ranks pari passu in
right of payment with, or junior in right of payment to, this Note.
2. Conversion.
2.1 (a) All unpaid principal and unpaid
accrued interest on this Note shall be automatically converted into the
Company’s equity securities (the “Securities”) issued
in the Company’s next equity financing (or series of related equity financings)
involving the sale of Securities in which the Company receives gross aggregate
cash proceeds (before brokers’ fees or other transaction related expenses, and
excluding any such proceeds resulting from any conversion of the First Bridge
Notes) of at least $10,000,000 minus the aggregate principal amount of the
Second Bridge Notes (a “Qualified
Financing”), at a conversion price equal to the lesser of (a) the lowest
per unit price paid for such Securities in cash by investors in such Qualified
Financing, and upon such other terms, conditions and agreements as may be
applicable in such Qualified Financing, and (b) $30,000,000 divided by the
number of shares of Common Stock outstanding immediately prior to such Qualified
Financing (determined on a fully diluted basis) (the “Conversion
Price”).
2
(b) In
the event that the Company consummates a merger, share exchange, or other
transaction (or series of related transactions), other than in connection with a
Qualified Financing, in which (i) the Company merges into or otherwise becomes a
wholly-owned subsidiary of a company subject to the public company reporting
requirements of the Securities Exchange Act of 1934, as amended, and (ii) the
aggregate consideration payable to the Company or its stockholders in such
transaction(s) (the “Reverse Merger
Consideration”) is greater than or equal to $10,000,000 (a “Reverse Merger”),
then immediately prior to such Reverse Merger, all unpaid principal and unpaid
accrued interest on this Note shall be automatically converted into Common Stock
at a conversion price per share equal to the quotient obtained by dividing (i)
the Reverse Merger Consideration less the amount of unpaid principal and accrued
interest on all Bridge Notes by (ii) the number of shares of Common Stock then
outstanding, on a fully diluted basis, without giving effect to the warrants
issued in connection with the Bridge Notes or to the warrants issued to
Paramount BioCapital, Inc., as placement agent in connection with the sale of
the First Bridge Notes.
The shares of Common Stock issuable
pursuant to clause 2.1(b) above shall be issued effective prior to the
consummation of the Reverse Merger and as a condition to such Reverse
Merger. As a holder of such shares of Common Stock, the Holder will
receive the consideration payable in connection with such Reverse Merger on a
share-for-share basis with all other stockholders of the Company and in like
kind, at the same time and upon the same conditions as all other stockholders of
the Company.
If any Reverse Merger Consideration is
other than cash, its value will be deemed to be its fair market value as
determined, in good faith, by the Board of Directors of the
Company. The value of any securities shall be determined by the Board
of Directors of the Company as set forth for a Sale of the Company in Section
3.2(c) below.
In the event the Company completes (in
one or a series of related transactions) a merger, consolidation, sale or
transfer of more than fifty percent (50%) of the Company’s capital stock, in
each case, which does not constitute a Sale of the Company (as defined below), a
Reverse Merger or a Qualified Financing, then the term “Securities” as used
herein shall thereafter refer to the equity securities or securities convertible
into or exchangeable for equity securities of the surviving, resulting, combined
or acquiring entity in such merger, consolidation, sale or
transfer.
2.2 Upon conversion of this Note in
accordance with the terms of Section 2.1, the outstanding unpaid principal and
unpaid accrued interest of this Note shall be converted without any further
action by the Holder and whether or not this Note is surrendered to the Company
or its transfer agent, and the indebtedness evidenced by this Note shall be
satisfied in full and no interest shall continue to accrue on this Note and all
rights of the Holder hereunder shall terminate. The Company shall not
be obligated to issue certificates evidencing the shares of the securities
issuable upon such conversion unless this Note is either delivered to the
Company or its transfer agent, or the Holder notifies the Company or its
transfer agent that such Note has been lost, stolen or destroyed and executes an
agreement satisfactory to the Company to indemnify the Company from any loss
incurred by it in connection with such Note. The Company shall, as
soon as practicable after such delivery, or such agreement and indemnification,
issue and deliver to such Holder of such Note, a certificate or certificates for
the securities to which the Holder shall be entitled. Such conversion
shall be deemed to have been made concurrently with the close of the Qualified
Financing or the Reverse Merger, as applicable. The person or persons
entitled to receive securities issuable upon such conversion shall be treated
for all purposes as the record holder or holders of such securities on such
date. The Company shall not issue fractional shares but shall round
down the number of shares issued to the nearest whole number. Any
conversion effected in accordance with this Section 2 shall be binding upon the
Holder hereof.
3
3. Prepayment.
3.1 Other than as provided in Section
3.2 hereof, this Note may not be prepaid at any time, in whole or in part, prior
to their maturity.
3.2 In the event of a Sale of the
Company prior to a Qualified Financing, the Company shall:
(a) pay to the Holder an amount equal
to the unpaid principal balance of this Note, payable in cash or such other form
of Sale Proceeds (as defined below), having a value equal to such unpaid
principal balance;
(b) pay to the Holder all accrued but
unpaid interest on this Note, payable in cash or such other form of Sale
Proceeds, having a value equal to such accrued but unpaid interest;
and
(c) as consideration for the permitted
prepayment of this Note, issue to the Holder a number of fully paid,
non-assessable shares of Common Stock equal to (i) the Aggregate Prepayment
Equity Amount (as defined below), multiplied by (ii) the quotient equal to the
principal amount of the Holder’s Note divided by the sum of the aggregate
principal amount of (w) this Note plus (x) the Trusts Note plus (y) all Bridge
Notes plus (z) the Galenica Note, in each case, then outstanding.
The
shares of Common Stock issuable pursuant to clause (c) above shall be issued
effective immediately prior to, and conditioned upon, the consummation of the
Sale of the Company and as a condition to such Sale of the
Company. As a holder of such shares of Common Stock, the Holder will
receive the consideration payable in connection with such Sale of the Company on
a share-for-share basis with all other stockholders of the Company and in like
kind, at the same time and upon the same conditions as all other stockholders of
the Company.
Upon the
consummation of the Sale of the Company and completion by the Company of the
deliveries set forth in clauses (a) through (c) above, the indebtedness
evidenced by this Note shall be satisfied in full and no interest shall continue
to accrue on this Note and all rights of the Holder hereunder shall
terminate.
4
If any
Sale Proceeds resulting from the Sale of the Company are other than cash, the
value of such Sale Proceeds will be deemed to be its fair market value as
determined, in good faith, by the Board of Directors of the
Company. The value of any securities shall be determined by the Board
of Directors of the Company as follows:
(i)
Securities not subject to an investment letter or other restriction on free
marketability covered by (ii) below:
(A) If
traded on a securities exchange, the value shall be the average of the daily
average bid and asked prices of the securities on such exchange over the thirty
(30) day period ending three (3) days prior to the date of the Sale of the
Company;
(B) If
not traded on a securities exchange, but actively traded over-the-counter, the
value shall be the average of the daily average of the closing bid and sale
prices over the thirty (30) day period ending three (3) days prior to the date
of the Sale of the Company; and
(C) If
not traded on a securities exchange and if there is no active public market, the
value shall be the fair market value thereof, as determined by the Board of
Directors with reference to the last sale of securities undertaken by the issuer
of such securities.
(ii) An
appropriate discount from the market value determined in accordance with clauses
(A), (B) or (C) of subsection (i) above shall be made with respect to any
securities subject to an investment letter or other restriction on free
marketability (other than restrictions arising solely by virtue of a
shareholder’s status as an affiliate or former affiliate) to reflect the
approximate fair market value thereof, as determined by the Board of
Directors.
The
following definitions shall apply for purposes of this Section 3.2:
(w) “Aggregate Prepayment Equity
Amount” shall mean a number of shares of Common Stock determined in
accordance with the following formula:
Aggregate
Prepayment Equity Amount =
|
{
|
A
|
}
|
- A
|
B
|
For
purposes of the foregoing formula:
A = the
number of shares of the Company’s then outstanding Common Stock, determined on a
fully diluted basis, prior to any issuance under this Section 3.2;
B = the
Applicable Percentage (as defined below).
(x) “Applicable
Percentage” shall mean the number determined in accordance with the
following formula:
5
Applicable
Percentage =
|
1 -
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{
|
(
A x B )
C
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}
|
For
purposes of the foregoing formula:
A = the
aggregate principal amount of this Note, the Trusts Note, all Bridge Notes and
the Galenica Note outstanding immediately prior to the Sale of the
Company;
B = 50%;
and
C = the
aggregate principal amount of this Note, the Trusts Note, all Bridge Notes and
the Galenica Note then outstanding.
(y) “Sale of the Company”
shall mean a transaction (or series of related transactions) with one or more
non-affiliates, pursuant to which such party or parties acquire (i) capital
stock of the Company or the surviving entity possessing the voting power to
elect a majority of the board of directors of the Company or the surviving
entity (whether by merger, consolidation, sale or transfer of the Company’s
capital stock or otherwise) (a “Stock Acquisition”);
or (ii) all or substantially all of the Company’s assets determined on a
consolidated basis (an “Asset Sale”); provided, however, that
notwithstanding anything to the contrary contained herein, to the extent any
transaction (or series of related transactions) qualifies as a Qualified
Financing or a Reverse Merger, such transaction(s) shall not be deemed to
constitute a Sale of the Company.
(z) “Sale Proceeds” shall
mean (i) in the event of a Stock Acquisition, the cash or securities paid by the
acquirer to the Company or the selling stockholders to acquire such shares; and
(ii) in the event of an Asset Sale, the cash or securities legally available for
distribution to the Company’s stockholders, after creation of adequate reserves
for liabilities of the Company.
4. Attorney’s
Fees. If the indebtedness represented by this Note or any part
thereof is collected in bankruptcy, receivership or other judicial proceedings
or if this Note is placed in the hands of attorneys for collection after
default, the Company agrees to pay, in addition to the principal and interest
payable hereunder, reasonable attorneys’ fees and costs incurred by
Holder.
5. Notices. Any
notice, other communication or payment required or permitted hereunder shall be
in writing and shall be deemed to have been given upon delivery to the address
provided pursuant to the Purchase Agreement.
6. Notice of Proposed
Transfers. Prior to any proposed transfer of this Note or the
Securities, unless there is in effect a registration statement under the
Securities Act covering the proposed transfer, the Holder shall give written
notice to the Company of such Holder’s intention to effect such
transfer. Each such notice shall describe the manner and
circumstances of the proposed transfer in sufficient detail, and shall, if the
Company so requests, be accompanied (except in transactions in compliance with
Rule 144) by an unqualified written opinion of legal counsel, who shall be
reasonably satisfactory to the Company, addressed to the Company and reasonably
satisfactory in form and substance to the Company’s counsel, to the effect that
the proposed transfer of this Note or Securities may be effected without
registration under the Securities Act; provided, however, no such
opinion of counsel shall be necessary for a transfer without consideration by a
Holder to any affiliate of such Holder, or a transfer by a Holder which is a
partnership to a partner of such partnership or a retired partner of such
partnership who retires after the date hereof, or to the estate of any such
partner or retired partner or the transfer by gift, will or intestate succession
of any partner to his spouse or lineal descendants or ancestors, if the
transferee agrees in writing to be subject to the terms hereof to the same
extent as if such transferee were the original Holder hereunder. Each
certificate evidencing Securities or this Note transferred as above provided
shall bear an appropriate restrictive legend, except that this Note or
certificate shall not bear such restrictive legend if in the opinion of counsel
for the Company such legend is not required in order to establish compliance
with any provisions of the Securities Act.
6
7. Acceleration. This
Note shall become immediately due and payable if (i) the Company commences any
proceeding in bankruptcy or for dissolution, liquidation, winding-up,
composition or other relief under state or federal bankruptcy laws; or (ii)
there is any material breach of any material covenant, warranty, representation
or other term or condition of this Note or the Purchase Agreement at any time
which is not cured within the time periods permitted therein, or if no cure
period is provided therein, within sixty (60) days after the date on which the
Company receives written notice of such breach.
8. No Dilution or
Impairment. The Company will not, by amendment of its
Certificate of Incorporation or Bylaws or through any reorganization, transfer
of assets, consolidation, merger, dissolution, issue or sale of securities or
any other voluntary action, avoid or seek to avoid the observance or performance
of any of the terms of this Note, but will at all times in good faith assist in
the carrying out of all such terms and in the taking of all such action as may
be necessary or appropriate in order to protect the rights of the Holder of this
Note against dilution or other impairment.
9. Waivers. The
Company hereby waives presentment, demand for performance, notice of
non-performance, protest, notice of protest and notice of
dishonor. No delay on the part of Holder in exercising any right
hereunder shall operate as a waiver of such right or any other right. This Note
is being delivered in and shall be construed in accordance with the laws of the
State of New York, without regard to the conflicts of laws provisions
thereof.
10. No Stockholder
Rights. Nothing contained in this Note shall be construed as
conferring upon the Holder or any other person the right to vote or to consent
or to receive notice as a stockholder of the Company.
11. Amendment. Any
term of this Note may be amended with the written consent of the Company and the
Holder hereof.
* * * * *
7
IN WITNESS WHEREOF, this
Amended and Restated Future Advance Promissory Note is executed by the parties
hereto as of the day and year first above written.
CORMEDIX
INC.
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By:
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/s/
John Houghton
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Name:
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John
Houghton
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Title:
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President
and Chief Executive Officer
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PARAMOUNT
BIOSCIENCES, LLC
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By:
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/s/
Lindsay A. Rosenwald, M.D.
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Name:
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Lindsay
A. Rosenwald, M.D.
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Title:
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Sole
Member
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8