Exhibit 10.91
THIS NOTE HAS NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
“ACT”). NO SALE, PLEDGE OR DISPOSITION MAY BE EFFECTED
EXCEPT IN COMPLIANCE WITH RULE 144 UNDER SAID ACT OR AN EFFECTIVE
REGISTRATION STATEMENT RELATED THERETO OR AN OPINION OF COUNSEL FOR
THE HOLDER, REASONABLY SATISFACTORY TO THE COMPANY, THAT SUCH
REGISTRATION IS NOT REQUIRED UNDER THE ACT.
THIS NOTE IS SUBJECT TO THE TERMS
AND CONDITIONS OF THE PURCHASE AGREEMENT (AS DEFINED
BELOW).
NOTE
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$2,000,000.00
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May 18, 2009
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For value received, Anesiva, Inc., a
Delaware corporation (the “ Company ”), promises
to pay to the order of Arcion Therapeutics, Inc. (together with its
successors and assigns, the “ Holder ”), the
principal sum of Two Million Dollars ($2,000,000), together with
interest accrued but unpaid thereon, upon the terms of this Note
(the “ Note ”).
Interest shall accrue from the date
hereof until maturity at a continuously compounding rate equal to
ten percent (10%) per annum payable in cash; provided ,
however , that, during the occurrence and continuance of an
Event of Default (as defined in that certain Secured Note Purchase
Agreement, dated as of May 18, 2009 (as amended, restated,
supplemented or otherwise modified from time to time, the “
Purchase Agreement ”), among the Company and the
Holder), interest shall accrue at a continuously compounding rate
equal to fourteen percent (14%) per annum. All computations of
interest shall be made on the basis of a year of 365 or 366 days,
as the case may be, for the actual number of days (including the
first day but excluding the last) occurring in the period for which
such interest is payable.
Unless earlier paid pursuant to the
terms hereof or the Purchase Agreement or accelerated in connection
with an Event of Default, subject to the terms of the Purchase
Agreement, the outstanding principal and accrued but unpaid
interest shall be immediately due and payable on October 20,
2009 (the “ Maturity Date ”). Company may prepay
this Note at any time without penalty or premium.
1. This Note is issued pursuant to
the terms of the Purchase Agreement. The Holder is entitled to the
benefit of, and is subject to certain restrictions contained in,
the Purchase Agreement and the other Related Documents. Capitalized
terms not otherwise defined herein shall have the meanings ascribed
to them in the Purchase Agreement. The indebtedness evidenced by
this Note is secured by certain collateral, as more particularly
described in that certain Pledge, Security and Collateral Agent
Agreement, dated as of May 18, 2009 (as may be further
amended, restated, supplemented or modified from time to time, the
“ Security Agreement ”), among the Company,
AlgoRx Pharmaceuticals, Inc. and the Collateral Agent and that
certain Guaranty, dated as of January 20, 2009 (as may be
further amended or modified from time to time, the “
Guaranty ”) by and between AlgoRx Pharmaceuticals,
Inc. and the Holder.
Each holder of this Note will be deemed, by its
acceptance hereof, to have agreed to the provisions and to have
made the representations and warranties set forth in Section 4
the Purchase Agreement. Subject to the terms of the Purchase
Agreement, this Note is transferable by surrender hereof at the
principal office of the Company, duly endorsed or accompanied by a
written instrument of transfer duly executed by the registered
holder of this Note or by any other method permitted by the
Purchase Agreement.
2. All payments hereunder shall be
applied in the order provided for in the Purchase Agreement.
Whenever any payment hereunder shall be stated to be due, or
whenever any return payment date or any other date specified
hereunder would otherwise occur, on a day other than a Business
Day, then such payment shall be made, and such return payment date
or other date shall occur, on the next succeeding Business Day, and
such extension of time shall in such case be included in the
computation of payment of interest hereunder.
3. All payments in respect of this
Note shall be in immediately available lawful money of the United
States of America and shall be sent so as to be received no later
than 2 p.m. (Pacific time) on the date of payment, at the address
specified in the Purchase Agreement, or at such other address as
may be specified from time to time by such Holder in a written
notice delivered to the Company. All payments in respect of this
Note shall be made unconditionally in full without any deduction,
set off, counterclaim or other defense. If any scheduled payment
date is not a Business Day, such payment shall be made on the next
succeeding Business Day.
4. The Company hereby waives demand,
notice, presentment, protest and notice of dishonor.
5. (a) The terms of this Note shall
be construed in accordance with the laws of the State of
California, as applied to contracts entered into by California
residents within the State of California, which contracts are to be
performed entirely within the State of California. The Company
hereby (i) submits to the exclusive jurisdiction of the courts
of the County of San Francisco, State of California and the Federal
courts of th