Exhibit 10.75
THIS SECURITY 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 SECURITY IS SUBJECT TO THE
TERMS AND CONDITIONS OF THE PURCHASE AGREEMENT (AS DEFINED
BELOW).
SECURITY
For value received, Anesiva, Inc., a
Delaware corporation (the “ Company ”), promises
to pay to the order of [
] (together with its successors and assigns, the “
Holder ”), the principal sum of [
], together with returns accrued but unpaid thereon, upon the terms
of this Security (the “ Security ”).
Returns shall accrue from the date
hereof until maturity at a continuously compounding rate equal to
seven percent (7%) per annum; provided , however
, that, during the occurrence and continuance of an Event of
Default (as defined in that certain Security Purchase Agreement,
dated as of January 20, 2009 (as amended or otherwise modified
from time to time, the “ Purchase Agreement ”),
among the Company and, among others, the Holder), returns shall
accrue at a continuously compounding rate equal to fourteen percent
(14%) per annum. All computations of returns 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 return 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 returns
shall be immediately due and payable at any time at the request of
the Majority Investors on or after July 20, 2009 (the “
Maturity Date ”). The Company shall not have the right
to pre-pay the amounts due under this Security prior to the
Maturity Date without the prior written consent of the Majority
Investors. The pre-payment of this Security shall be deemed to be a
Change of Control and shall require the payment by the Company to
the Holder of the amounts set forth in the Purchase
Agreement.
1. This Security 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 Security shall be secured by all
collateral, as more particularly described in that certain Pledge,
Security and Collateral Agent Agreement, dated as of
January 20, 2009 (as may be further amended or modified from
time to time, the “ Security Agreement ”), among
the
Company and, among others, the Holder 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 among
AlgoRx Pharmaceuticals, Inc. and, among others, the Holder. Each
holder of this Security 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 (other than Section 4.2 thereof). The
Securities are issuable as registered securities. Subject to the
terms of the Purchase Agreement, this Security 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 Security 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 returns hereunder.
3. All payments in respect of this
Security 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 Security 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 Security
shall be construed in a
