Convertible Loan Agreement - Modex Therapeutiques SA and CytoTherapeutics Inc.
CONVERTIBLE LOAN AGREEMENT
This Agreement dated as of July 10, 1996, is among Modex Therapeutiques
SA, a Swiss corporation ("Modex") and CytoTherapeutics, Inc. ("CTI"), a Delaware
corporation.
CTI currently owns 6'500 shares of Modex common stock.
Modex wishes to borrow from CTI, and CTI wishes to lend to Modex, a
total amount of SFr. 3'600'000.--in the form of a convertible subordinated loan.
Parties refer to Section 7 of the Statutes of Modex which provides for
a conditional capital stock increase, in order to enable Modex to issue the
necessary number of shares required in case of conversion of the hereunder
defined loan, and of the loan agreed today with Societe Financiere Valoria SA,
another shareholder of Modex.
Parties agree as follows:
1. Total Amount of Loan
The total amount of the loan is of SFr. 3'600,000.--
2. Delivery of the Funds by CTI
2.1. CTI will immediately provide for a transfer to the bank
account of Modex at Banque Cantonale Vaudoise no.-911.58 12
the amount of SFr. 1'200'000.--. Modex will acknowledge
receipt of that amount and acknowledge owing SFr.
1'200'000.--to CTI, with reference to the present Agreement.
2.2. On the second anniversary of the present Agreement, a similar
transfer of the amount of SFr. 1'400'000.-- will be made by
CTI, provided that on or before such second anniversary Modex
has achieved one of the following milestones (1) anemia: the
earlier of (a) delivery for at least 90 days of 300 units per
day of EPO in a large animal model or functional evidence of a
therapeutic benefit of EPO in large animal model or (b)
commencement of a Phase I clinical trial in humans or (2)
diabetes: large animal off insulin for 90 days or (3) obesity:
the earlier of (a) FaFa rat returned to normal body weight or
(b) demonstrated weight loss in large animal model or in
humans. Modex will acknowledge receipt of that amount
similarly.
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3. Repayment of Loan by Modex
All unpaid principal shall be due and payable on the earlier to occur
of the tenth anniversary of the CTI/LOC Option Agreement or the closing
of an underwritten public offering of Modex common stock (such date is
referred to as "Due Date").
Reservation is made for provisions of Section 6.2 hereunder.
4. Prepayment
Modex may not prepay any portion of the principal sum prior to the Due
Date, unless authorized to do so in writing by CTI.
5. Interest
No interest shall be due on the principal.
6. Subordination
6.1. Principle
In the event of any receivership, insolvency or bankruptcy
proceedings instituted by or against Modex, or execution sale
of any of the assets of Modex, or proceedings, whether or not
judicial, for dissolution or liquidation of Modex, or any
distribution or division, partial ro complete, of all or any
part of the assets of Modex, the claim derived from this loan
agreement and that of other loans similarly subordinated will
be subordinated to the payment in full of all third party
claims (classes 1 - 5 according to Article 219 of Swiss
Bankruptcy Law).
6.2. Possibility of Conditional Waiver
Furthermore, before any receivership, insolvency or bankruptcy
proceedings, in the event that excessive debt of Modex would
require steps to be taken according to Article 725 of the
Swiss Code of Obligations, CTI will accept, unless it
exercises its conversion option according to Section 7
hereunder, to draft an agreement, together with the holders of
other subordinated loans, according to which its claim against
Modex would be conditionally waived, i.e. until the balance
sheet of Modex would show again that the assets cover all
loans.
7. Conversion
7.1. Conversion at the Option of CTI
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At the option of CTI, all or part (corresponding to the
conversion of any possible number of shares) of the unpaid
principal then outstanding may be converted into shares of
common stock of Modex, at any time starting from the day after
the first payment according to Section 2.1 until Due Date,
providing that CTI gives a thirty day notice in writing
7.2. Conversion Price
Subject to adjustment as provided in Sections 7.3 and 7.7
below, the price per share of common stock into which the part
of outstanding loan shall be converted is SFr. 1'400.--.
However, in the event that Modex has failed to complete one at
least of the milestones set forth in Section 2.2 here above by
midnight, on the second anniversary of this Agreement, then
the initial conversion price, still subject to adjustments as
set forth below, shall be deemed to be SFr. 480.- per share.
Upon such conversion, the amount of outstanding principal so
converted shall be deemed paid and no longer outstanding
hereunder.
7.3. Adjustments to Conversion Price
In the event the outstanding shares of common stock shall be
combined or consolidated (by reclassification or otherwise)
into a lesser number of shares of common stock, the conversion
price in effect immediately prior to such combination or
consolidation shall, concurrently with the effectiveness of
such combination or consolidation, be proportionately
increased. In the event the outstanding shares of common stock
shall be subdivided (by stock split, by stock dividend or
otherwise) into a greater number of shares of common stock,
the conversion price in effect immediately prior to such
subdivision shall, concurrently with the effectiveness of such
subdivision, be proportionately decreased.
7.4. Conversion Modalities
CTI will notify Modex in writing, with the thirty day notice
mentioned at Section 7.1, its will to exercise the option to
convert, specifying the number of shares converted and the
amount of the loan paid, and the day of the conversion. Such
notice will refer to Section 7 of the Statutes of Modex
related to the conditional increase of capital.
No later than the day of conversion, CTI will serve a formal
declaration of compensation to Banque Cantonale Vaudoise
(Article 653 e) al.2 of the Swiss Code of Obligations).
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7.5. Dividend
Modex shares obtained through conversion will give the right
to receive all dividends payable with respect to such shares
by Modex following such conversion.
7.6. Stamp duty
The stamp duty levied by the capital increase will be paid by
Modex.
7.7. Conversion at the Option Market
At the option of Modex, all or part (corresponding to the
conversion of any possible number of shares) of the unpaid
principal then outstanding may be converted into shares of
common stock of Modex on (i) the closing of an underwritten
public offering of the common stock of Modex or (ii) the Due
Date. The conversion price shall be as provided in Section 7.2
above, and shall be subject to the adjustments provided in
Section 7.3. Conversion at the closing of a such public
offering shall be automatic. Conversion on the Due Date shall
occur if Modex shall have so notified CTI at least 30 days
prior to Due Date. Such notice shall refer to Article 7 of the
Statutes of Modex related to the conditional increase of
capital. No later than one day of any conversion under this
Section 7.8, CTI will serve a formal declaration of
compensation to Banque Cantonale Vaudoise (Art. 653 e) lit. b
of Swiss Code of Obligations).
8. Attorney's Fees
If the principle is not paid in full when due, Modex hereby agrees to
pay to CTI, in addition to such amount owed to pursuant to the loan,
all costs and expenses of collection, including a reasonable sum for
attorneys fees.
9. Course of Dealing
No course of dealing between Modex and CTI shall operate as a waiver of
any of CTI's rights according to the loan. No delay or omission on the
part of CTI, in exercising any right according to the loan, shall
operate as a waiver of such right. No amendment or waiver hereof shall
be binding unless it is in writing and signed by CTI.
10. Governing Law
This Agreement shall be governed by and construed in accordance with
the internal laws of Switzerland.
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11. Dispute Resolution
All disputes, differences, controversies or claims arising in
connection with, or questions occurring under, this Agreement shall be
settled as provided in Exhibit A.
Modex Therapeutiques S.A. CytoTherapeutics, Inc.
By /s/ Patrick Aebischer By /s/ John S. Swen
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Title: President Title: Vice President
By: /s/ Max Wilhelm By /s/ Seth A. Rudnick
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Title: Title: CEO
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