THIS NOTE HAS
NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AND HAS BEEN
ACQUIRED FOR INVESTMENT AND NOT WITH A VIEW TO, OR IN CONNECTION
WITH, THE SALE OR DISTRIBUTION THEREOF. NO SUCH TRANSFER MAY BE
EFFECTED WITHOUT AN EFFECTIVE REGISTRATION STATEMENT RELATED
THERETO OR AN OPINION OF COUNSEL IN A FORM SATISFACTORY TO THE
COMPANY THAT SUCH REGISTRATION IS NOT REQUIRED IN CONNECTION WITH
SUCH TRANSFER UNDER THE SECURITIES ACT OF 1933.
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$22,000,000
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Charlottesville,
Virginia
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August 4, 2008
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FOR
VALUE RECEIVED, the undersigned, PGX HEALTH, LLC , a Delaware
limited liability company (together with its successors, the
“ Company ”), hereby unconditionally
promises to pay to the order of ADENOSINE THERAPEUTICS,
L.L.C. , a Virginia limited liability company (together with
its successors and permitted assigns, the “
Holder ”), without setoff or deduction except
as specifically set forth herein, the aggregate principal amount of
Twenty-Two Million and 00/100 Dollars ($22,000,000), together with
interest thereon as provided herein. Capitalized terms used in this
Note but not otherwise defined herein have the meanings given such
terms in Article 5 hereof.
1.1
Interest . The outstanding principal amount of this Note
shall bear interest (computed on the basis of a 365 or 366 day
year, as the case may be) at a fixed rate equal to six percent (6%)
per annum, from the date hereof until paid. Accrued interest shall
be payable in arrears commencing on October 1, 2008 and
continuing on the first day of each January, April, July and
October thereafter until July 1, 2013 (the “
Maturity Date ”), at which time all accrued and
unpaid interest on this Note shall be immediately due and
payable.
1.2
Principal . The Company shall repay the principal amount of
this Note in twenty (20) equal payments of principal, each in
the amount of $1,100,000, commencing on October 1, 2008 and
continuing on the first day of each January, April, July and
October thereafter until the Maturity Date, at which time the
entire then outstanding principal balance of this Note shall be
immediately due and payable.
1.3
Business Days . Whenever payment of principal of, or
interest on, this Note shall be due on a date that is not a
Business Day, the date for payment thereof shall be the next
succeeding Business Day and interest due on the unpaid principal
shall accrue during such extension and shall be payable on such
succeeding Business Day.
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ARTICLE 2
PREPAYMENTS; SET-OFF; COLLATERAL SECURITY
2.1
Prepayment . The Company shall have the right to prepay the
principal amount of this Note in whole or in part, at any time and
from time to time, without payment of any premium or penalty
whatsoever, together with interest thereon accrued to the date of
prepayment, and any such prepayment shall be applied to reduce the
Company’s principal payment obligations under Section
1.2 ; provided that any such prepayment shall be in an amount
of not less than $500,000.
2.2
Set-off . The Company shall be entitled to set-off any
amounts due and payable hereunder against any claims against the
Holder for indemnification pursuant to Section 8.1 of
the Purchase Agreement, subject to the limitations set forth in
Section 8.2 of the Purchase Agreement, and any
post-closing reduction in the “Purchase Price” (as
defined in the Purchase Agreement) pursuant to Section 3.5 of
the Purchase Agreement. All such claims for indemnification shall
first be satisfied through set off, in whole or in part, against
the principal balance outstanding under this Note (with any such
offset to be made against the principal amounts outstanding
hereunder in inverse order of their respective due dates). The
Holder, by accepting this Note, hereby acknowledges and agrees to
the foregoing provisions, and any subsequent transferee or
successor of the Holder shall be bound by such
provisions.
2.3
Collateral Security . Payment of this Note is secured
pursuant to the terms of that certain Security Agreement, dated of
even date herewith, between the Company and the Holder (the “
Security Agreement ”).
3.1
Events of Default . If one or more of the following events
(each an “ Event of Default ”) shall have
occurred and be continuing:
(a) the
Company shall fail to pay within five (5) Business Days of the
due date thereof any principal of this Note, any interest payable
hereunder, or any other amounts payable hereunder, or shall fail to
perform any of its other covenants or agreements hereunder, which
failure continues uncured more than thirty (30) days after
written notice thereof to the Company;
(b) the
occurrence of an event of default under the Security Agreement or
of an event of default under that certain secured promissory note,
dated of even date herewith, made by the Company payable to the
order of the Holder in the stated principal amount of
$3,200,000;
(c) Clinical
Data, Inc., a Delaware corporation (together with its successors,
“ CLDA ”), shall at any time fail to
satisfy the “current public information” conditions of
Rule 144(c)(1) under the Securities Act;
(d) any
default under that certain Guaranty Agreement, of even date
herewith, from CLDA to the Holder;
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(e) any
merger or series of mergers of CLDA pursuant to which the surviving
entity is not controlled by those who were stockholders of CLDA
immediately prior to such merger or series or mergers, or any sale
or transfer of all or substantially all of the stock in, or the
assets of, CLDA or its subsidiaries;
(f) any
merger or series of mergers of the Company pursuant to which the
surviving entity is not controlled by those who owned the equity
interests in the Company immediately prior to such merger or series
or mergers, or any sale or transfer of all or substantially all of
the equity interests in, or the assets of, the Company;
(g) any
merger or series of mergers of Cogenics, Inc., a Delaware
corporation (“ Cogenics ”), pursuant to
which the surviving entity is not controlled by those who were
stockholders of Cogenics immediately prior to such merger or series
or mergers, or any sale or transfer of all or substantially all of
the stock in, or the assets of, the Cogenics;
(h) any
of the Company, Cogenics or CLDA shall commence a voluntary case or
other proceeding seeking liquidation, reorganization
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