Attached files
| file | filename |
|---|---|
| EX-10.2 - FORM OF EXCHANGE AGREEMENT - MetaStat, Inc. | ex10-2.htm |
| EX-10.1 - FORM OF NOTE PURCHASE AGREEMENT - MetaStat, Inc. | ex10-1.htm |
| EX-4.3 - FORM OF NOTE WARRANT - MetaStat, Inc. | ex4-3.htm |
| EX-4.1 - FORM OF SENIOR NOTE - MetaStat, Inc. | ex4-1.htm |
| 8-K - CURRENT REPORT - MetaStat, Inc. | mtst8kapr2018.htm |
Exhibit 4.2
THIS NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933,
AS AMENDED (THE “SECURITIES ACT”), OR ANY STATE
SECURITIES LAWS AND MAY NOT BE SOLD, TRANSFERRED OR OTHERWISE
DISPOSED OF UNLESS REGISTERED UNDER THE SECURITIES ACT AND UNDER
APPLICABLE STATE SECURITIES LAWS OR UNLESS METASTAT, INC. SHALL
HAVE RECEIVED AN OPINION OF COUNSEL THAT THE REGISTRATION OF SUCH
SECURITIES UNDER THE SECURITIES ACT AND UNDER THE PROVISIONS OF
APPLICABLE STATE SECURITIES LAWS IS NOT REQUIRED.
METASTAT, INC.
Junior Non-Convertible Promissory Bridge Note
|
U.S.
$[________]
No.: [_______] |
Issuance
Date: [_____], 2018
Maturity
Date: [Six (6) Months Following the Issuance Date]
|
FOR VALUE RECEIVED, MetaStat, Inc., a
Nevada corporation (the “Company”), hereby
promises to pay to the order of [___________] or any permitted
holder (the “Payee”) of this junior
non-convertible promissory bridge note (this “Note”), at the principal
office of the Payee set forth herein, or at such other place as the
Payee may designate in writing to the Company, the principal sum of
[___________] Dollars ($[_____]), with interest on the unpaid
principal balance hereof at a rate equal to ten percent (10%) per
annum commencing effective as of the Issuance Date (the
“Commencement
Date”), in such currency of the United States of
America as at the time shall be legal tender for the payment of
public and private debts and in immediately available funds, as
provided in this Note. This Note has been entered into pursuant to
the terms of a note purchase agreement (the “Purchase Agreement”)
dated as of [_____], 2018 by and among the Company and the
purchasers signatory thereto. Unless otherwise separately defined
herein, each capitalized term used in this Note shall have the same
meaning as set forth in the Purchase Agreement.
1. Principal, Interest and
Prepayment.
(a) The Company shall
repay the entire principal balance plus accrued and unpaid interest
thereon (the “Outstanding Balance”)
then outstanding under this Note no later than [six (6) months
following the Issuance Date] (the “Maturity
Date”).
(b) Interest on the
outstanding principal balance of this Note shall accrue at a rate
of ten percent (10%) per annum commencing on the Commencement Date,
which interest shall be computed on the basis of the actual number
of days elapsed and a year of three hundred and sixty-five (365)
days. Furthermore, upon the occurrence of an Event of Default (as
defined below), then to the extent permitted by applicable law, the
Company will pay interest to the Payee on the then outstanding
principal balance of the Note from the date of the Event of Default
until this Note is paid in full at the rate of twelve percent (12%)
per annum.
(c) The Company may not
prepay this Note, either in whole or in part, absent the
Payee’s prior written consent.
2. Automatic Exchange of Outstanding
Balance upon Qualified Offering. Subject to the terms and
conditions of this Section 2 and provided this Note remains
outstanding, this Note shall automatically exchange at the
Outstanding Balance (the “Automatic Exchange”),
without any action on the part of the Payee, into such number of
fully paid and non-assessable securities (e.g. shares and warrants)
to be issued in the Qualified Offering (as defined below). With
respect to the Automatic Conversion, the Company and/or the
Company’s investment banker(s) shall communicate and provide
notice of the timing, pricing and closing of the Qualified Offering
to the Payee in the same manner as all other investors in the
Qualified Offering. The Payee shall be deemed to be a purchaser in
the Qualified Offering and shall be granted all rights afforded to
an investor in the Qualified Offering and shall enter into such
reasonable definitive documentation with respect to the Qualified
Offering. For purposes of this Note, “Qualified Offering” shall
mean one or a series of offerings of equity or equity-linked
securities following the date of this Note, resulting in aggregate
gross proceeds of at least $6,628,927 to the Company, including the
Automatic Exchange of the Notes into the Qualified
Offering.
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3. Rank. This Note shall rank
junior with respect to payment to the senior non-convertible
promissory bridge notes issued pursuant to the Purchase Agreement
and senior to all future indebtedness of the Company and to the
Company’s issued and outstanding equity securities, except as
otherwise required by applicable law.
4. Additional Indebtedness. The
Company shall not, without first obtaining the consent of from the
Payee (which consent will not be unreasonably withheld), incur any
new Indebtedness (indebtedness of the Company which does not exist
as of the date of this Note) while this Note is outstanding;
provided,
however, that the
consent of the Payee will not be required with respect to Permitted
Indebtedness.
5. Prohibition on Liens. So long
as this Note is outstanding, the Company shall not create or impose
any material Lien of the Company or any of its Subsidiaries
pursuant to the terms of any agreement or instrument to which any
of them is a party or by which any of them may be bound or to which
any of their property or any of them is subject, except for
Permitted Liens. Failure to comply with the terms of this Section 5
shall be deemed an Event of Default pursuant to Section 8 of this
Note.
6. Non-Business Days. Whenever any
payment to be made shall be due on a Saturday, Sunday or a public
holiday under the laws of the State of New York, such payment may
be due on the next succeeding Business Day and such next succeeding
day shall be included in the calculation of the amount of accrued
interest payable on such date.
7. Representations and Warranties of the
Company. The Company represents and warrants to the Payee as
follows:
(a) The Company has
been incorporated and is validly existing and in good standing
under the laws of the State of Nevada, with full corporate power
and authority to own, lease and operate its properties and to
conduct its business as currently conducted.
(b) This Note has been
duly authorized, validly executed and delivered on behalf of the
Company and is a valid and binding obligation of the Company
enforceable against the Company in accordance with its terms,
subject to limitations on enforcement by general principles of
equity and by bankruptcy or other laws affecting the enforcement of
creditors’ rights generally.
(c) The execution,
delivery and performance of this Note will not: (i) conflict with
or result in a material breach of or a default under any of the
terms or provisions of, (A) the Company’s articles of
incorporation or by-laws, or (B) any material provision of any
indenture, mortgage, deed of trust or other material agreement or
instrument to which the Company is a party or by which it or any of
its material properties or assets is bound; (ii) result in a
violation of any material provision of any law, statute, rule,
regulation, or any existing applicable decree, judgment or order by
any court, Federal or state regulatory body, administrative agency,
or other governmental body having jurisdiction over the Company, or
any of its material properties or assets; or (iii) result in the
creation or imposition of any material lien or encumbrance upon any
material property or assets of the Company pursuant to the terms of
any agreement or instrument to which the Company is a party or may
be bound or to which the Company or any of its property is
subject.
(d) No consent,
approval or authorization of or designation, declaration or filing
with any governmental authority on the part of the Company is
required in connection with the valid execution and delivery of
this Note.
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8. Events of Default. The
occurrence of any of the following events shall be an
“Event of
Default” under this Note:
(a) the Company shall
fail to make the payment of any principal amount outstanding for a
period of ten (10) Business Days after the date such payment shall
become due and payable hereunder; or
(b) the Company shall
fail to make the payment of any accrued and unpaid interest for a
period of ten (10) Business Days after the date such interest shall
become due and payable hereunder; or
(c) any material breach
by the Company of any representations or warranties made by the
Company herein; or
(d) the holder of any
Indebtedness of the Company shall accelerate any payment of any
amount or amounts of principal or interest on any such Indebtedness
(other than with respect to this Note and notes of like tenor)
prior to its stated maturity or payment date, the aggregate
principal amount of which Indebtedness is in excess of $500,000,
whether such Indebtedness now exists or shall hereinafter be
created, and such accelerated payment entitles the holder thereof
to immediate payment of such Indebtedness which is due and owing
and such Indebtedness has not been discharged in full or such
acceleration has not been stayed, rescinded or annulled within
fifteen (15) Business Days of such acceleration; or
(e) A judgment or
judgments for the payment of money shall be rendered against the
Company for an amount in excess of $500,000 in the aggregate (net
of any applicable insurance coverage) for all such judgments that
shall remain unpaid for a period of sixty (60) consecutive days or
more after its entry or issue or that shall not be discharged,
released, dismissed, stayed or bonded (due to an appeal or
otherwise) within the sixty (60) consecutive day period after its
entry or issue; or
(f) the Company shall
(i) apply for or consent to the appointment of, or the taking of
possession by, a receiver, custodian, trustee or liquidator of
itself or of all or a substantial part of its property or assets,
(ii) make a general assignment for the benefit of its creditors,
(iii) commence a voluntary case under the Federal Bankruptcy Code,
as amended (the “Bankruptcy Code”) or
under the comparable laws of any jurisdiction (foreign or
domestic), (iv) file a petition seeking to take advantage of any
bankruptcy, insolvency, moratorium, reorganization or other similar
law affecting the enforcement of creditors’ rights generally,
or (v) acquiesce in writing to any petition filed against it in an
involuntary case under the Bankruptcy Code or under the comparable
laws of any jurisdiction (foreign or domestic); or
(g) a proceeding or
case shall be commenced in respect of the Company without its
application or consent, in any court of competent jurisdiction,
seeking (i) the liquidation, reorganization, moratorium,
dissolution, winding up, or composition or readjustment of its
debts, (ii) the appointment of a trustee, receiver, custodian,
liquidator or the like of it or of all or any substantial part of
its assets or (iii) similar relief in respect of it under any law
providing for the relief of debtors, and such proceeding or case
described in clause (i), (ii) or (iii) shall continue undismissed,
or unstayed and in effect, for a period of forty-five (45)
consecutive days or any order for relief shall be entered in an
involuntary case under the Bankruptcy Code or under the comparable
laws of any jurisdiction (foreign or domestic) against the Company
or any of its Subsidiaries and shall continue undismissed, or
unstayed and in effect for a period of forty-five (45) consecutive
days.
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9. Remedies
Upon An Event of Default. If an Event of Default shall have
occurred and shall be continuing, the Payee of this Note may at any
time at its option, (a) declare, by providing the Company with not
less than ten (10) Business Days’ prior written notice, the
entire unpaid principal balance of this Note together with all
interest accrued and unpaid hereon, due and payable, and upon the
Company’s receipt of such notice, the same shall be
accelerated and so due and payable; provided, however, that upon the
occurrence of an Event of Default described in (i) Sections 8(f)
and (g), without presentment, demand, protest, or notice, all of
which are hereby expressly unconditionally and irrevocably waived
by the Company, the outstanding principal balance and accrued and
unpaid interest hereunder shall be immediately due and payable, and
(ii) Sections 8(a) through (e), the Payee may exercise or otherwise
enforce any one or more of the Payee’s rights, powers,
privileges, remedies and interests under this Note or applicable
law. No course of delay on the part of the Payee shall operate as a
waiver thereof or otherwise prejudice the right of the Payee. No
remedy conferred hereby shall be exclusive of any other remedy
referred to herein or now or hereafter available at law, in equity,
by statute or otherwise.
10. Rights and Remedies. No course
of delay on the part of the Payee shall operate as a waiver thereof
or otherwise prejudice the right of the Payee. No remedy conferred
hereby shall be exclusive of any other remedy referred to herein or
now or hereafter available at law, in equity, by statute or
otherwise. Notwithstanding anything to the contrary contained in
this Note, Payee agrees that its rights and remedies hereunder are
limited to receipt of cash or securities of the Company in the
amounts described herein.
11. Replacement. Upon receipt of a
duly executed and notarized written statement from the Payee with
respect to the loss, theft or destruction of this Note (or any
replacement hereof), and without requiring an indemnity bond or
other security, or, in the case of a mutilation of this Note, upon
surrender and cancellation of such Note, the Company shall issue a
new Note, of like tenor and amount, in lieu of such lost, stolen,
destroyed or mutilated Note.
12. Parties in Interest;
Transferability. This Note shall be binding upon the Company
and its successors and assigns and the terms hereof shall inure to
the benefit of the Payee and its successors and permitted assigns.
This Note may not be transferred or sold, pledged, hypothecated or
otherwise granted as security by the Payee without the prior
written consent of the Company, which consent will not be
unreasonably withheld.
13. Amendments. This Note may not
be modified or amended in any manner except in writing executed by
the Company and the holders holding a majority of the then
outstanding Principal Balance of the Notes issued pursuant to the
Purchase Agreement
14. Notices. Any notice, demand,
request, waiver or other communication required or permitted to be
given hereunder shall be in writing and shall be effective (a) on
the date of transmission upon hand delivery or by delivery via
telecopy, facsimile or email at the address, email address or
number designated below (if delivered on a Business Day during
normal business hours where such notice is to be received), or the
first Business Day following such delivery (if delivered other than
on a Business Day during normal business hours where such notice is
to be received) or (b) on the second Business Day following the
date of mailing by express courier service, fully prepaid,
addressed to such address, or upon actual receipt of such mailing,
whichever shall first occur.
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Address of the
Payee:
[_________]
[_________]
[_________]
Attention:
[_________]
Tel.
No.: [_________]
Fax
No.: [_________] Email: [_________]
Address of the
Company:
MetaStat,
Inc.
27
Drydock Ave., 2nd Floor
Boston,
MA 02110
Attention: Chief
Executive Officer
Tel.
No.: (617) 531-6500
Fax
No.: (617) 482-3337
Email:
dhamilton@metastat.com and
dschneiderman@metastat.com
15. Governing Law. This Note shall
be governed by and construed in accordance with the internal laws
of the State of New York, without giving effect to the choice of
law provisions. This Note shall not be interpreted or construed
with any presumption against the party causing this Note to be
drafted.
16. Headings. Article and section
headings in this Note are included herein for purposes of
convenience of reference only and shall not constitute a part of
this Note for any other purpose.
17. Remedies, Characterizations, Other
Obligations, Breaches and Injunctive Relief. The remedies
provided in this Note shall be cumulative and in addition to all
other remedies available under this Note, at law or in equity
(including, without limitation, a decree of specific performance
and/or other injunctive relief), no remedy contained herein shall
be deemed a waiver of compliance with the provisions giving rise to
such remedy and nothing herein shall limit a Payee’s right to
pursue actual damages for any failure by the Company to comply with
the terms of this Note. The Company acknowledges that a breach by
it of its obligations hereunder will cause irreparable and material
harm to the Payee and that the remedy at law for any such breach
may be inadequate. Therefore, the Company agrees that, in the event
of any such breach or threatened breach, the Payee shall be
entitled, in addition to all other available rights and remedies,
at law or in equity, to seek and obtain such equitable relief,
including but not limited to an injunction restraining any such
breach or threatened breach, without the necessity of showing
economic loss and without any bond or other security being
required.
18. Failure or Delay Not Waiver. No
failure or delay on the part of the Payee 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.
19. Enforcement Expenses. The
Company agrees to pay all reasonable costs and expenses of
enforcement of this Note, including, without limitation, reasonable
attorneys’ fees and expenses.
20. Binding Effect. The obligations
of the Company and the Payee set forth herein shall be binding upon
the successors and permitted assigns of each such
party.
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21. Compliance with Securities
Laws. The Payee acknowledges and agrees that this Note is
being acquired solely for the Payee’s own account and not as
a nominee for any other party, and for investment purposes only and
not with a view to the resale or distribution of any part thereof,
and that the Payee shall not offer, sell or otherwise dispose of
this Note other than in compliance with applicable federal and
state laws. The Payee understands that this Note constitutes
“restricted securities” under applicable federal and
state securities laws and that such securities have not been, and
will not be, registered under the Securities Act of 1933, as
amended (the “Securities Act”). The
Payee represents and warrants to the Company that the Payee is an
“accredited investor” as such term is defined in Rule
501 of Regulation D promulgated under the Securities Act. This Note
and any Note issued in substitution or replacement therefore shall
be stamped or imprinted with a legend in substantially the
following form:
“THESE
SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED (THE “SECURITIES ACT”), OR ANY STATE
SECURITIES LAWS AND MAY NOT BE SOLD, TRANSFERRED OR OTHERWISE
DISPOSED OF UNLESS REGISTERED UNDER THE SECURITIES ACT AND UNDER
APPLICABLE STATE SECURITIES LAWS OR UNLESS METASTAT, INC. SHALL
HAVE RECEIVED AN OPINION OF COUNSEL THAT THE REGISTRATION OF SUCH
SECURITIES UNDER THE SECURITIES ACT AND UNDER THE PROVISIONS OF
APPLICABLE STATE SECURITIES LAWS IS NOT
REQUIRED.”
22. Severability. The provisions of
this Note are severable, and if any provision shall be held invalid
or unenforceable in whole or in part in any jurisdiction, then such
invalidity or unenforceability shall not in any manner affect such
provision in any other jurisdiction or any other provision of this
Note in any jurisdiction.
23. Consent to Jurisdiction. Each
of the Company and the Payee (i) hereby irrevocably submits to the
jurisdiction of the United States District Court sitting in the
Southern District of New York and the courts of the State of New
York located in New York county for the purposes of any suit,
action or proceeding arising out of or relating to this Note and
(ii) hereby waives, and agrees not to assert in any such suit,
action or proceeding, any claim that it is not personally subject
to the jurisdiction of such court, that the suit, action or
proceeding is brought in an inconvenient forum or that the venue of
the suit, action or proceeding is improper. Each of the Company and
the Payee consents to process being served in any such suit, action
or proceeding by mailing a copy thereof to such party at the
address set forth in 14 hereof and agrees that such service shall
constitute good and sufficient service of process and notice
thereof. Nothing in this Section 23 shall affect or limit any right
to serve process in any other manner permitted by applicable
law.
24. Waivers. Except as otherwise
specifically provided herein, the Company hereby waives
presentment, demand, notice of nonpayment, protest and all other
demands and notices in connection with the delivery, acceptance,
performance and enforcement of this Note, and does hereby consent
to any number of renewals or extensions of the time for payment
hereof and agrees that any such renewals or extensions may be made
without notice and without affecting its liability herein, AND DOES
HEREBY WAIVE TRIAL BY JURY. No delay or omission on the part of the
Payee in exercising its rights under this Note, or course of
conduct relating hereto, shall operate as a waiver of such rights
or any other right of the Payee, nor shall any waiver by the Payee
of any such right or rights on any one occasion be deemed a waiver
of the same right or rights on any future occasion.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the Company has
executed and delivered this Note as of the date first written
above.
METASTAT,
INC.
By:
Name:
Title:
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