Exhibit 10.1
THE SECURITIES REPRESENTED
HEREBY AND THE SECURITIES INTO WHICH THIS SECURITY IS CONVERTIBLE
HAVE BEEN OFFERED IN AN OFFSHORE TRANSACTION TO A PERSON WHO IS NOT
A U.S. PERSON (AS DEFINED HEREIN) PURSUANT TO REGULATION S UNDER
THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE "1933
ACT").
NONE OF THE SECURITIES
REPRESENTED HEREBY NOR THE SECURITIES INTO WHICH THESE SECURITIES
ARE CONVERTIBLE HAVE BEEN REGISTERED UNDER THE 1933 ACT, OR ANY
U.S. STATE SECURITIES LAWS, AND, UNLESS SO REGISTERED, MAY NOT BE
OFFERED OR SOLD, DIRECTLY OR INDIRECTLY, IN THE UNITED STATES (AS
DEFINED HEREIN) OR TO U.S. PERSONS EXCEPT IN ACCORDANCE WITH THE
PROVISIONS OF REGULATION S UNDER THE 1933 ACT, PURSUANT TO AN
EFFECTIVE REGISTRATION STATEMENT UNDER THE 1933 ACT, OR PURSUANT TO
AN AVAILABLE EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO,
THE REGISTRATION REQUIREMENTS OF THE 1933 ACT AND IN EACH CASE ONLY
IN ACCORDANCE WITH APPLICABLE STATE SECURITIES LAWS. IN ADDITION,
HEDGING TRANSACTIONS INVOLVING THIS SECURITY AND THE SECURITIES
INTO WHICH THIS SECURITY IS CONVERTIBLE MAY NOT BE CONDUCTED UNLESS
IN COMPLIANCE WITH THE 1933 ACT. "UNITED STATES" AND "U.S. PERSON"
ARE AS DEFINED BY REGULATION S UNDER THE 1933 ACT.
Issue Date: __________,
2009
Conversion Price
(subject to adjustment herein):
$2.50 per Unit
Principle Amount:
US$__________
0% CONVERTIBLE LOAN
FOR VALUE RECEIVED, ANAVEX
LIFE SCIENCES CORP ., (the “ Company ”)
promises to pay to _______________ or its registered assigns
(the “ Holder ”), the principal sum of One
Million, Six Hundred and Sixty-nine Thousand, Four Hundred and
Eighteen Dollars ($__________) in lawful currency of the United
States (the “Principal Amount” ) on demand
provided, however, that, except in the event of a default
hereunder, demand for repayment shall not be made on or before a
date that is one (1) year after the Issue Date or such earlier date
as the Convertible Loan may be permitted to be repaid as provided
hereunder (the “ Maturity Date ”), and to pay
interest to the Holder on the aggregate unconverted and then
outstanding principal amount of this Convertible Loan at the rate
of 0% per annum, payable on the earlier of (i) the Conversion Date
(as hereafter defined) (and subject in any event to the terms of
Section 3, below) and (ii) the Maturity Date. Interest shall be
calculated on the basis of a 360-day year and shall accrue daily
commencing on the Issue Date until payment in full of the Principal
Amount, together with all accrued and unpaid interest and other
amounts which may become due hereunder, has been made. Interest
shall cease to accrue with respect to any part of the Principal
Amount converted, provided that the Company in fact delivers the
Units, comprising one Common Share and one Warrant (each as defined
below) within the time period required by Section 3.3. Interest
hereunder will be paid to the Person in whose name this Convertible
Loan is registered on the records of the Company regarding
registration and transfers of Convertible Loans.
The Company may prepay any
portion of the principal amount of this Convertible Loan without
the prior written consent of the Holder by giving the Holder at
least ten (10) Business Days written notice. Any prepayment is
subject to a preemptive right of Holder to convert the prepayment
amount per the terms of Section 3.
This Convertible Loan is part
of an offering in which all Holders of such Convertible Loans are
equal as to all rights and the amounts owing to each will be
treated pari passu.
Each Unit
consists of one common share in the capital of the Company (a
“ Common Share ”) and one common share purchase
warrant (“ Warrant ”) exercisable at $3.00
(subject to adjustment) for a period of two years from the
Conversion Date (as hereafter defined). The form of Warrant
Agreement and Certificate will be the form delivered by the Company
on the Conversion Date.
This Convertible Loan is subject
to the following additional provisions:
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1.
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Subscription Agreement
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(a)
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This Convertible Loan has been
issued pursuant to a subscription agreement between the Company and
the Holder dated __________, 2009 (the “ Subscription
Agreement ”) pursuant to which the Holder purchased this
Convertible Loan, and this Convertible Loan is subject in all
respects to the terms of the Subscription Agreement and
incorporates the terms of the Subscription Agreement to the extent
that they do not conflict with the terms of this Convertible Loan.
This Convertible Loan is not transferable and may be exchanged or
converted only in compliance with the terms hereof, the terms of
the Subscription Agreement and applicable securities laws and
regulations.
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2.
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Events of Default
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(a)
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“ Event of Default
”, wherever used herein, means any one of the following
events (whatever the reason and whether it shall be voluntary or
involuntary or effected by operation of law or pursuant to any
judgment, decree or order of any court, or any order, rule or
regulation of any administrative or governmental body):
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(i)
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any default in the payment of (A)
the Principal Amount, or (B) interest on, or liquidated damages in
respect of, this Convertible Loan, in each case free of any claim
of subordination, as and when the same shall become due and payable
(whether on a Conversion Date or the Maturity Date or by
acceleration or otherwise) which default, solely in the case of an
interest payment or other default under item (B) above, is not
cured within 10 Trading Days (as defined in Section 5.1(j), below)
after notice of such default is sent by the Holder to the
Company;
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(ii)
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the Company shall fail to observe
or perform any other covenant or agreement contained in this
Convertible Loan or the Subscription Agreement [other than a breach
by the Company of its obligations to deliver Units to the Holder
upon conversion which breach is addressed in Section 2.1(e) below]
which failure is not cured, if possible to cure, within 10 calendar
days after notice of such default is sent by the Holder to the
Company;
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(iii)
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the Company or any of its
subsidiaries (each a “ Subsidiary ”) shall
commence, or there shall be commenced against the Company or any
Subsidiary a case under any applicable bankruptcy or insolvency
laws as now or hereafter in effect or any successor thereto, or the
Company or any Subsidiary commences any other proceeding under any
reorganization, arrangement, adjustment of debt, relief of debtors,
dissolution, insolvency or liquidation or similar law of any
jurisdiction whether now or hereafter in effect relating to the
Company or any Subsidiary or there is commenced against the Company
or any Subsidiary any such bankruptcy, insolvency or other
proceeding which remains undismissed for a period of 60 days; or
the Company or any Subsidiary is adjudicated insolvent or bankrupt;
or any order of relief or other order approving any such case or
proceeding is entered; or the Company or any Subsidiary suffers any
appointment of any custodian or the like for it or any substantial
part of its property which continues undischarged or unstayed for a
period of 60 days; or the Company or any Subsidiary makes a general
assignment for the benefit of creditors; or the Company shall fail
to pay, or shall state that it is unable to pay, or shall be unable
to pay, its debts generally as they become due; or the Company or
any Subsidiary shall call a meeting of its creditors with a view to
arranging a composition, adjustment or restructuring of its debts;
or the Company
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or any Subsidiary shall by any
act or failure to act expressly indicate its consent to, approval
of or acquiescence in any of the foregoing; or any corporate or
other action is taken by the Company or any Subsidiary for the
purpose of effecting any of the foregoing;
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(iv)
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the Common Stock shall not be
eligible for quotation on or quoted for trading on its principal
trading market and shall not again be eligible for and quoted or
listed for trading thereon within five Trading Days;
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(v)
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the Company shall fail for any
reason to deliver certificates to the Holder prior to the tenth
Trading Day after a Conversion Date pursuant to and in accordance
with Section 3.3 or the Company shall provide notice to the Holder,
including by way of public announcement, at any time, of its
intention not to comply with any request for conversion of this
Convertible Loan in accordance with the terms hereof; or
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(b)
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If any Event of Default occurs,
the full Principal Amount, together with interest and other amounts
owing in respect thereof to the date of acceleration shall become,
at the Holder’s election, immediately due and payable in
cash. Commencing 5 days after the occurrence of any Event of
Default that results in the eventual acceleration of this
Convertible Loan, the interest rate on this Convertible Loan shall
accrue at the rate of 20% per annum, or such lower maximum amount
of interest permitted to be charged under applicable law. Upon
payment of the full Principal Amount, together with interest and
other amounts owing in respect thereof, in accordance herewith,
this Convertible Loan shall promptly be surrendered to or as
directed by the Company. The Holder need not provide and the
Company hereby waives any presentment, demand, protest or other
notice of any kind, and the Holder may immediately and without
expiration of any grace period enforce any and all of its rights
and remedies hereunder and all other remedies available to it under
applicable law. Such declaration may be rescinded and annulled by
the Holder at any time prior to payment hereunder and the Holder
shall have all rights as a Convertible Loan holder until such time,
if any, as the full payment under this Section shall have been
received by it. No such rescission or annulment shall affect any
subsequent Event of Default or impair any right consequent
thereon.
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THE OBLIGATIONS UNDER THIS
CONVERTIBLE LOAN AGREEMENT ARE UNSECURED AGAINST THE ASSETS OF THE
COMPANY AND THEREFORE OTHER CHARGES MAY HAVE PRIORITY AGAINST THE
COMPANY’S ASSETS BEFORE THE HOLDER OF THIS CONVERTIBLE LOAN.
THERE IS NO GUARANTEE THAT THE COMPANY WILL HAVE SUFFICIENT ASSETS
UPON AN EVENT OF DEFAULT TO PAY THE HOLDER WHAT IS OWED.
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3.
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Conversion
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(a)
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At any time after the Issue Date
until this Convertible Loan is no longer outstanding, this
C
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