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Exhibit 4.14
2005 SERIES A NOTE
IF AND TO THE EXTENT THAT THIS NOTE CONSTITUTES A SECURITY, THE
SECURITIES
REPRESENTED BY THIS INSTRUMENT HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT
OF 1933, AS AMENDED, OR QUALIFIED UNDER APPLICABLE STATE SECURITIES
LAWS AND
HAVE BEEN TAKEN FOR INVESTMENT PURPOSES ONLY AND NOT WITH A VIEW TO
OR FOR SALE
IN CONNECTION WITH ANY DISTRIBUTION THEREOF. IF AND TO THE EXTENT
THAT THIS NOTE
CONSTITUTES A SECURITY, THE SECURITIES MAY NOT BE SOLD OR OTHERWISE
TRANSFERRED
IN THE ABSENCE OF SUCH REGISTRATION AND QUALIFICATION WITHOUT AN
OPINION OF
COUNSEL FOR THE HOLDER THAT SUCH REGISTRATION AND QUALIFICATION ARE
NOT
REQUIRED.
AMENDED AND RESTATED SENIOR CONVERTIBLE PROMISSORY NOTE
New York, New York
$752,148
January 29, 2005
1.
Principal and Interest.
(a) Omrix Biopharmaceuticals, Inc. (the "Company"), a Delaware
corporation, for value received, hereby promises indefeasibly to
pay to the
order of Philippe Romagnoli or holder (the "Holder") in lawful
money of the
United States at the address of the Holder set forth below or such
other address
as the Holder may specify by written notice, the principal amount
of Seven
Hundred Fifty-Two Thousand One Hundred Forty Eight Dollars exactly
($752,148),
together with interest at ten percent (10%) per annum, compounded
annually,
until the maturity of this Note, whether as scheduled or by
acceleration or
otherwise, and, thereafter, at the lesser of (i) fifteen percent
(15%) per
annum, and (ii) the maximum legal rate of interest that may be
charged at any
time on such debt. All computations of interest shall be made on
the basis of a
365-day year for actual days elapsed.
(b) This Note is one of two series of notes constituting senior
unsecured obligations of the company being issued by the Company to
the Holder
and certain other holders (collectively with the Holder, the
"Aggregate
Holders") in the aggregate principal amount of $1,966,950. The
first series of
notes (of which this Note is the sole Note) in the aggregate
principal amount of
$752,148 (the "2005 Series A Note") is being issued by the Company
to the Holder
as an amendment and restatement of that certain note issued by the
Company on
September 20, 2002 in the face amount of $500,000 (the "2001 Senior
Note") to
the Holder. The second series of notes in the aggregate principal
amount
$1,214,802 (the "2005 Series B Notes") is being issued to the
Aggregate Holders
as an amendment and restatement of those certain notes issued by
the Company on
September 20, 2002 in the aggregate face amount of $982,500 (the
"2002 Senior
Notes") to the Aggregate Holders. The Holder, as holder of the 2001
Senior Note,
agrees that (i) such amendment and restatement is in lieu of, and
by its
acceptance of this Note agrees to forego, any and all interest to
which such
holder was entitled under terms of the 2001 Senior Note and to
forgo any
conversion right or privilege to which the Holder was or could have
been
entitled under the terms of the 2001 Senior Note, and (ii) the
security interest
granted by the company to secure the 2001 Senior Notes and the 2002
Senior Notes
has been terminated.
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(c) The principal of and accrued interest on this Note shall be
due
and payable on the earlier to occur of (i) December 30, 2007 (the
"Stated
Maturity Date"), or (ii) acceleration of this Note following an
Event of Default
(as defined below). The Company may prepay this Note at any time,
in whole or in
part, at 100% of the principal amount so prepaid, together with a
prepayment
premium equal to fifty per cent of the principal amount prepaid
plus accrued
interest at the date of prepayment. The Holder of this Note may
demand the
repayment of this Note, together with a prepayment premium equal to
fifty per
cent of the principal amount prepaid plus accrued interest at the
date of
prepayment, upon the occurrence of a Change in Control. As used in
this Note,
"Change of Control" means (y) the consummation of any transaction
or series of
related transactions that results in the holders of record of the
Company's
capital stock immediately prior to the transaction or transactions
holding less
than fifty percent (50%) of the voting power of the Company
immediately after
the transaction or transactions, including the acquisition of the
Company by
another entity and any reorganization, merger, consolidation or
share exchange,
or which results in the sale of all or substantially all of the
assets of the
Company or (z) the consummation of an underwritten public offering
of the
Company's capital stock (an "IPO"). "Change of Control" does not
include a
financing in which the Company issues shares of its capital stock
(or securities
convertible into or exercisable for shares of any of its capital
stock) and
existing investors of the Company, including the Company's note
holders retain
50% ownership or more of the Company on an as converted fully
diluted basis. For
purposes of the subsection (c), if the consideration payable to the
Company or
its stockholders in connection with a Change of Control shall
consist, in whole
or in part, of securities or other property other than cash, the
payment
required by this subsection in connection with such Change of
Control may, at
the option of the Company, be made to the Holder in the form of
such securities
or other property, valued at the same value attributed to such
securities or
other property in connection with the Change of Control
transaction.
(d) The Company shall deliver to the Holder a notice at least 20
days
prior to any Change of Control describing in reasonable detail all
material
terms of such Change of Control.
(e) Upon payment in full or conversion in accordance with this Note
of
all principal, interest and other amounts payable in connection
with the Note,
the Note shall be surrendered to the Company for cancellation.
(f) The Company shall make all payments due hereunder at the
Holder's
address set forth on the books and records of the Company, or such
other place
as the Holder may designate by written notice to the Company. Each
payment shall
be applied to such indebtedness as Holder may direct in its
discretion.
(g) All payments under this Note shall be made unconditionally,
indefeasibly and in full without deduction, setoff, recoupment,
counterclaim, or
other defense, all of which are hereby waived to the maximum extent
permitted by
applicable law. If the Company or any of its affiliates have any
claim,
recoupment, setoff, defense or other right to the contrary, the
Company shall
notify Holder in writing immediately, and the Company represents
and warrants
that it presently has no such claims, recoupments, setoffs,
defenses or other
such rights.
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(h) The Company also waives presentment, protest, presentation of
the
Note and any other condition precedent to payment to the
Holder.
(i) The Company shall pay all amounts due free and clear of and
without reduction or deduction for or on account of any present or
future taxes,
levies, charges, imports, duties, assessments, withholding or other
governmental
obligations, exclusive of any taxes based upon the income of the
Holder
(collectively called "Taxes"), and the Company shall increase such
amounts paid
to the Holder as needed in order to satisfy its obligations to
Holder net of any
Taxes. The Company shall indemnify Holder against and hold Holder
harmless from
any Taxes or any obligation of Holder to withhold or turn over any
amount for or
on account of any Taxes and any right of any holder of any
indebtedness which is
not asserted by written notice to the Holder, and on account of any
costs or
liabilities associated therewith. By its acceptance of this Note,
Holder
covenants and agrees with the Company that it will report or
declare any Taxes
paid by the Company on behalf of the Holder pursuant to this
subsection (i) as
having been paid by the Holder and will use any credit or deduction
in respect
of such Tax payment to reduce or offset its liability for Taxes in
the
jurisdiction in which it is a resident or domiciliary for Tax
purposes, and will
pay over to the Company any resulting net Tax savings attributable
to such
payment of Taxes by the Company.
2.
Event of Default and Acceleration.
(a) The occurrence of any of the following shall constitute an
"Event
of Default" hereunder:
(i) The Company shall fail to observe or perform any covenant
or
agreement of the Company set forth in this Note.
(ii) Any representation or warranty made by or on behalf of the
Company in this Note or in any instrument or document furnished to
Holder in
connection herewith shall prove to be false or misleading in any
material
respect as of the most recent date such representation or warranty
was made,
except to the extent any such representation or warranty expressly
relates to an
earlier date.
(iii) The Company or any of its subsidiaries at any time shall
be
in default (as principal or guarantor or other surety) in the
payment of any
principal of or premium or interest on any indebtedness for
borrowed money in
excess of $200,000 beyond the grace period, if any, applicable
thereto, except
any such default (A) as is being contested in good faith (and, if
necessary, by
appropriate proceedings) by the Company or the relevant subsidiary,
provided
that if required by generally accepted accounting principles the
Company or such
subsidiary shall have set aside on its books a sufficient reserve
with respect
to such indebtedness, or (B) where the failure to pay such
indebtedness when due
and any such related default would not have a material adverse
effect on the
business, properties, assets or condition (financial or otherwise)
of the
Company and its subsidiaries.
(iv) The Company or any of its subsidiaries shall (A) generally
not be paying its debts as they become due, (B) file, or consent,
by answer or
otherwise, to the filing against it of a petition for relief or
reorganization
or arrangement or any other petition in
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bankruptcy or insolvency under the laws of any jurisdiction, (C)
make an
assignment for the benefit of creditors, (D) consent to the
appointment of a
custodian, receiver, trustee or other officer with similar powers
for it or for
any substantial part of its property, or (E) be adjudicated
insolvent.
(v) Any court of competent jurisdiction shall enter an order
appointing, without consent of the Company or any of its
subsidiaries, a
custodian, receiver, trustee or other officer with similar powers
with respect
to it or with respect to
