INSITE VISION INCORPORATED AMENDED AND RESTATED SENIOR SECURED NOTE
EXHIBIT
10.53
INSITE
VISION INCORPORATED
AMENDED
AND RESTATED SENIOR SECURED NOTE
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$231,000
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December
30, 2005
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Alameda,
California
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WHEREAS,
InSite
Vision Incorporated, a Delaware corporation (the “Maker” or the “Company”) and
▇. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇▇, Ph.D., (“Holder”) desire to amend and restate that
certain Senior Secured Note dated as of July 15, 2003 in the manner set forth
below;
NOW
THEREFORE,
the
Maker and the Holder agree as follows:
FOR
VALUE RECEIVED,
Maker
promises to pay to the order of Holder, at ▇▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇,
the
principal sum of Two Hundred And Thirty One Thousand Dollars ($231,000.00),
together with all accrued interest thereon from July 15, 2003, the date of
the
original issuance, upon the terms and conditions specified below.
1. Loan
Proceeds.
The
proceeds of this Note shall be used for general corporate purposes of the
Maker.
2. Interest.
Interest
shall accrue on the unpaid balance outstanding from time to time under this
Note
at the rate of five and one-half percent (5.5%) per annum. All computations
of
interest shall be made on the basis of a year of 365 days for the actual number
of days (including the first day but excluding the last day) occurring in the
period for which such interest is payable. Accrued
and unpaid interest shall become due and payable at the maturity of the Note.
3. Due
Date.
Unless
earlier accelerated pursuant to the terms hereof, this Note shall mature and
the
outstanding principal balance of this Note together with all accrued interest
hereunder shall become due and payable in a lump sum on the
earlier to occur of: (a) March 31, 2007 and (b) within
ten (10) days after the consummation of a Qualified Financing, a Sale of the
Company or a Corporate Collaboration.
For
purposes hereof, (i) “Qualified Financing” shall mean the closing of an equity
financing or series of equity financings by the Company resulting in aggregate
gross cash proceeds (before commissions or other expenses) to the Company of
at
least $12,500,000; and (ii) “Sale of the Company” shall mean a transaction (or
series of related transactions) between the Company and one or more
non-affiliates, pursuant to which such party or parties acquire (A) capital
stock of the Company possessing the voting power to elect a majority of the
board of directors of the Company (whether by merger, consolidation, sale or
transfer of the Company’s capital stock or otherwise); or (B) all or
substantially all of the Company’s assets determined on a consolidated basis;
provided, however, that a transaction (or series of related transactions)
pursuant to which the then-existing holders of the Company’s capital stock
immediately prior to such transaction (or series of related transactions)
continue to own, directly or indirectly, a majority of the outstanding shares
of
the capital stock of the Company or such other resulting, surviving or combined
company resulting from such transaction (or series of related transactions)
shall not be deemed to be a Sale of the Company and (iii) a “Corporate
Collaboration” shall mean the closing by the Company of a transaction in which
any rights to AzaSite are licensed to a third party.
4. Payment.
Payment
shall be made in lawful tender of the United States and shall be applied first
to the payment of all accrued and unpaid interest and then to the payment of
principal. Prepayment of the principal balance of this Note, together with
all
accrued and unpaid interest on the portion of principal so prepaid, may be
made
in whole or in part at any time without penalty.
5. Events
of Acceleration.
The
entire unpaid principal balance of this Note, together with all accrued and
unpaid interest, shall become immediately due and payable prior to the specified
due date of this Note upon the occurrence of one or more of the following events
(each an “Event of Acceleration”):
(a) Pursuant
to or within the meaning of the United States Bankruptcy Code or any other
federal or state law relating to insolvency or relief of debtors (a “Bankruptcy
Law”), Maker shall (i) commence a voluntary case or proceeding; (ii) consent to
the entry of an order for relief against it in an involuntary case; (iii)
consent to the appointment of a trustee, receiver, assignee, liquidator or
similar official; (iv) make an assignment for the benefit of its creditors;
or
(v) admit in writing its inability to pay its debts as they become due;
(b) A
court
of competent jurisdiction enters an order or decree under any Bankruptcy Law
that (i) is for relief against Maker in an involuntary case; (ii) appoints
a
trustee, receiver, assignee, liquidator or similar official for Maker or
substantially all of Maker's properties; or (iii) orders the liquidation of
Maker, and in each case the order or decree is not dismissed or stayed within
30
daysor; or
(c) any
"Event of Acceleration" or similar event of default under the 2005 Senior
Secured Notes due June 30, 2006.
6. Security.
Payment
of this Note shall be secured by a lien on substantially all of the Maker’s
assets in accordance with that certain Amended and Restated Security Agreement
(the “Security Agreement”) dated as of December 30, 2005 by and among the
Collateral Agent an the other parties thereto. The Maker, however, shall remain
liable for payment of this Note, and assets of the Maker, in addition to the
collateral under the Security Agreement, may be applied to the satisfaction
of
the Maker’s obligations hereunder. In the case of any Event of Acceleration,
Holder shall have the rights set forth herein and as set forth in the Security
Agreement.
7. Collection.
If
action
is instituted to collect this Note, the Maker promises to pay all costs and
expenses (including reasonable attorney fees) incurred in connection with such
action.
2.
8. Waiver.
A waiver
of any term of this Note or of any of the obligations secured thereby must
be
made in writing and signed by ▇▇▇▇▇▇ and any such waiver shall be limited to
its
express terms.
No
delay
by ▇▇▇▇▇▇ in acting with respect to the terms of this Note shall constitute
a
waiver of any breach, default, or failure of a condition under this Note or
the
obligations secured thereby.
The
Maker
waives presentment, demand, notice of dishonor, notice of default or
delinquency, notice of acceleration, notice of protest and nonpayment, notice
of
costs, expenses or losses and interest thereon, notice of interest on interest
and diligence in taking any action to collect any sums owing under this
Note.
9. Entire
Agreement.
In the
event of any inconsistencies between the terms of this Note and the terms of
any
other document related to the loan evidenced by the Note, the terms of this
Note
shall prevail.
10. Separate
Counsel.
In
making the loan evidenced by this Note and by ▇▇▇▇▇▇’s acceptance of this Note,
Holder hereby acknowledges that the law firm of O’Melveny & ▇▇▇▇▇ LLP
(“OMM”) has represented the Maker in the transaction contemplated by this Note
and has not represented Holder or any of the other Holders in such transaction.
▇▇▇▇▇▇ further acknowledges that ▇▇▇▇▇▇ has had an adequate and meaningful
opportunity to review and interpret this Note with separate legal counsel of
▇▇▇▇▇▇’s own choosing, other than lawyers at OMM, and
to
obtain appropriate tax and legal advice with respect of the implications and
consequences of entering into such transactions.
11. Governing
Law.
This
Note shall be construed in accordance with the laws of the State of California
without resort to that State’s conflict-of-laws rules.
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INSITE
VISION INCORPORATED
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__________________________________________
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By:
_______________________________________
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Its:
_______________________________________
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3.