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EXHIBIT 10.1
THIRD AMENDED AND RESTATED CONVERTIBLE PROMISSORY NOTE
$5.0 MILLION
MARCH 22 2007
WHEREAS, Boston Life Sciences, Inc., a Delaware corporation (the
"MAKER"),
and Robert Gipson (the "LENDER"), were parties to that certain
Promissory Note,
dated August 8, 2006 and made by the Maker in favor of the Lender
for the
principal sum $3,000,000.00 (the "ORIGINAL NOTE");
WHEREAS, on October 26, 2006, the Maker and the Lender amended and
restated
the Original Note to increase the principal sum from $3,000,000.00
to
$4,000,000.00 (the "AMENDED NOTE");
WHEREAS, on February 8, 2007, the Maker and the Lender amended and
restated
the Amended Note to increase the principal sum from $4,000,000.00
to
$5,000,000.00 (the "SECOND AMENDED NOTE"); and
WHEREAS, the Lender and the Maker desire to amend and restate the
Second
Amended Note as set forth herein.
NOW
THEREFORE, in consideration of the premises and mutual promises
and
covenants contained herein, and on the terms herein set forth, the
parties
hereto, intending to be legally bound, hereby agree to amend and
restate the
Second Amended Note in its entirety to read as follows:
FOR
VALUE RECEIVED, Maker, hereby unconditionally promises to pay to
the
order of Lender, in lawful money of the United States of America
and in
immediately available funds, the principal sum of Five Million
Dollars
($5,000,000), without any interest or additional payments thereon
(the "LOAN"),
due and payable on the dates and in the manner set forth below.
1.
REPAYMENT. Subject to Section 3 hereof, the Loan shall be due
and
payable on the earliest to occur of (i) June 30, 2007 and (ii) the
date on which
the Lender declares an Event of Default (as defined in Section 8
below) to have
occurred (the first of the events set forth in Section 2(i) and
2(ii)) to occur
being referred to herein as the "MATURITY DATE"). This Third
Amended and
Restated Note may not be prepaid in whole or in part at any time
without the
prior written consent of the Lender.
2.
PAYMENTS. No interest shall accrue on the Loan.
3.
CONVERSION. On or after June 15, 2007 (the "CONVERSION DATE"),
Lender
shall effect the conversion of the Loan into the Common Stock of
the Company
pursuant to the terms of this Section 3. On or before the
Conversion Date, by
written notice to the Company, the Lender shall submit this Third
Amended and
Restated Convertible Promissory Note to the Company and in full
satisfaction of
any and all obligations the Maker has hereunder, Maker shall issue
to Lender,
2,000,000 shares of the Common Stock of the Company (subject to
adjustment for
stock splits, dividends, combinations or the like after the date
hereof).
Notwithstanding anything to the
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contrary contained herein, Lender shall be prohibited from
effecting a
conversion pursuant to this Section 3 if at the time of such
conversion (i) the
Common Stock issuable to such Purchaser pursuant to such conversion
or as a
result of such conversion, when taken together with all shares of
Common Stock
then held or otherwise beneficially owned by such Purchaser exceeds
19.9% of the
total number of issued and outstanding shares of Common Stock of
the Company
immediately prior to such conversion or (ii) the Common Stock
issuable to such
Purchaser pursuant to such conversion or as a result of such
conversion, exceeds
19.9% of the total number of issued and outstanding shares of
Common Stock of
the Company immediately prior to such conversion, in each case
unless and until
the stockholders of the Company approve the conversion of all of
the shares of
Common Stock issuable hereunder and the transactions contemplated
hereby
pursuant to Nasdaq Marketplace Rule 4350(i)(1)(D)(ii) and any other
applicable
rules and regulations ("STOCKHOLDER APPROVAL"). In the event that
Stockholder
Approval is required to effect the conversion set forth herein, the
Conversion
shall be automatically extended to the date occurring three days
after
Stockholder Approval is obtained. The Maker hereby covenants and
agrees that it
shall use its best efforts to seek Stockholder Approval for the
conversion
contemplated by this Section 3.
4.
PLACE OF PAYMENT. All amounts payable hereunder shall be payable
in
immediately available funds at the office of the Lender, c/o
Ingalls & Snyder,
61 Broadway, New York, NY, unless another place of payment shall be
specified in
writing by the Lender.
5.
APPLICATION OF PAYMENTS. Payment on this Third Amended and Restated
Note
shall be applied first to costs and expenses due hereunder and
thereafter to the
outstanding principal balance hereof.
6.
REPRESENTATIONS AND WARRANTIES. The Maker represents and warrants
to the
Lender that:
(a) the Maker is duly organized, validly existing, and in good
standing under the laws of its jurisdiction of incorporation and is
duly
qualified and in good standing in every other jurisdiction where
the nature of
its business or the location or ownership of its properties
requires such
qualification and where the failure to be so qualified would
reasonably be
expected to have a material adverse effect on the Maker's business,
operations,
properties, assets or condition (financial or otherwise);
(b) the Maker has the full corporate power and authority to
execute
and deliver this Third Amended and Restated Note and to perform all
of the
obligations hereunder, and all necessary corporate action has been
taken to
execute and deliver this Third Amended and Restated Note and to
make the
borrowings hereunder;
(c) this Third Amended and Restated Note constitutes the legal,
valid,
and binding obligations of the Maker, enforceable against the Maker
in
accordance with its terms, subject to applicable bankruptcy,
insolvency,
reorganization or similar laws generally affecting the enforcement
of the rights
of creditors; and
(d) the execution, delivery and performance by the Maker of this
Third
Amended and Restated Note does not (i) violate any provisions of
the Maker's
Certificate of
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Incorporation, as amended, bylaws, as amended, or any contract,
agreement, law,
regulation, order, decree or writ to which the Maker or any of its
properties
are subject or (ii) require the consent or approval of any person,
entity or
authority, including, without limitation, any regulatory authority
or
governmental body of the United States of America or any state
thereof or any
political subdivision of any of the foregoing.
7.
NEGATIVE COVENANTS. So long as any principal and interest
remains
outstanding under this Third Amended and Restated Note, the Maker
shall not:
(a) create, incur, assume, guaranty, become liable with respect
to
(contingently or otherwise), or permit to be outstanding any
indebtedness for
money borrowed (including, without limitation, any indebtedness
evidenced by any
notes, instruments or agreements or in
