Exhibit 2.2
PROMISSORY NOTE
June 18, 2009
FOR VALUE RECEIVED
, GTC BIOTHERAPEUTICS, INC. ,
a Massachusetts corporation located at the address stated below
(the “ Borrower ”), promises to pay to the order
of LFB BIOTECHNOLOGIES, S.A.S. or any subsequent holder
hereof (each, a “ Lender ”) at its office
located at 3, avenue des Tropiques, LES ULIS, 91940 Coutaboueuf,
France or at such other place as Lender or the holder hereof may
designate, the principal sum of THREE MILLION FIVE HUNDRED
THOUSAND AND 00/100 DOLLARS ($3,500,000.00) , with interest on
the unpaid principal balance, from the date hereof through and
including the dates of payment, at a fixed interest rate of ten and
eighty hundredths (10.8%) per annum, to be paid in lawful
money of the United States, in accordance with the amortization
schedule attached hereto as Annex I , as follows: an
installment of principal and interest in the amount of $92,967.12
on August 1, 2009, to be followed by twenty-eight
(28) consecutive monthly installments of principal and
interest commencing September 1, 2009 and continuing on the
first day of each month thereafter through and including
December 1, 2011, in the amount of $47,817.12, together with a
final installment in the amount of any and all remaining
outstanding principal and interest (i.e. $2,988,714.19), and all
other amounts outstanding, on January 1, 2012. Such
installments have been calculated on the basis of a 360 day year of
twelve 30-day months. Each payment may, at the option of the
Lender, be calculated and applied on an assumption that such
payment would be made on its due date.
The acceptance by Lender of any
payment which is less than payment in full of all amounts due and
owing at such time shall not constitute a waiver of Lender’s
right to receive payment in full at such time or at any prior or
subsequent time.
The Borrower hereby expressly
authorizes the Lender to insert the date value is actually given in
the blank space on the face hereof and on all related documents
pertaining hereto.
This Promissory Note (this “
Note ”) is being made pursuant to a Loan Agreement
dated as of the date hereof (as may hereafter be amended, restated,
supplemented or modified from time to time, the “ Loan
Agreement ”) and is the “Secured Note”
referred to therein, and is secured by an Amended and Restated
Security Agreement dated the date hereof (as may be amended,
restated, supplemented or modified from time to time, the “
Master Security Agreement ”) and a Second Mortgage,
Security Agreement and Fixture Filing dated December 22, 2008,
as amended by that certain Amendment to Mortgage, Security
Agreement and Fixture Filing dated as of the date hereof (as so
amended and as may hereafter be amended, restated, supplemented or
modified from time to time, the “ Mortgage ”),
each from the Borrower to the Lender and, together with any other
security agreements, pledge agreements, mortgages, schedules or
other collateral documents delivered by the Borrower to the Lender
from time to time to secure the obligations hereunder (as may be
amended, restated, supplemented or modified from time to time, each
a “ Security Document ”).
Time is of the essence hereof. If
any installment or any other sum due under this Note, the Loan
Agreement or any Security Document is not received within ten
(10) days after its due date, the Borrower agrees to pay, in
addition to the amount of each such installment or other
sum, a late payment charge of five percent
(5%) of the amount of said installment or other sum, but not
exceeding any lawful maximum. If (i) Borrower fails to make
payment of any amount due hereunder within ten (10) days after
the same becomes due and payable; or (ii) Borrower is in
default under, or fails to perform under any term or condition
contained in the Loan Agreement or any Security Document (other
than those in Section 7(a)(viii), (x) or (xi) of the
Master Security Agreement) (beyond any applicable grace period),
then the entire principal sum remaining unpaid, together with all
accrued interest thereon and any other sum payable under this Note,
the Loan Agreement or any Security Document, at the election of
Lender, shall immediately become due and payable, with interest
thereon at the lesser of eighteen percent (18%) per annum or
the highest rate not prohibited by applicable law from the date of
such accelerated maturity until paid (both before and after any
judgment). If Borrower is in default under, or fails to perform
under any term or condition under Section 7(a)(viii),
(x) or (xi) of the Master Security Agreement, then this
Note, the Loan Agreement, and all Security Documents shall
immediately become due and payable, without notice.
The Borrower may, at its option,
prepay at any time, without premium or penalty, the whole or any
portion of the indebtedness hereunder, provided that each such
prepayment shall be accompanied by payment of all interest on the
prepaid portion of such indebtedness accrued to the date of such
prepayment. Any partial prepayment of principal of the indebtedness
hereunder will be applied to installments of principal of such
indebtedness (including without limitation, the final
“balloon” payment) thereafter coming due in inverse
order of normal maturity. Amounts paid or prepaid hereunder are not
available for reborrowing.
It is the intention of the parties
hereto to comply with the applicable usury laws; accordingly, it is
agreed that, notwithstanding any provision to the contrary in this
Note, the Loan Agreement or any Security Document, in no event
shall this Note, the Loan Agreement or any Security Document
require the payment or permit the collection of interest in excess
of the maximum amount permitted by applicable law. If any such
excess interest is contracted for, charged or received under this
Note, the Loan Agreement or any Security Document, or
