Exhibit 10.2
SELLER NOTE
THIS NOTE (AS DEFINED BELOW) HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), AND MAY NOT BE OFFERED, SOLD, PLEDGED, HYPOTHECATED, ASSIGNED OR TRANSFERRED EXCEPT (I) PURSUANT TO A REGISTRATION STATEMENT UNDER THE SECURITIES ACT WHICH HAS BECOME EFFECTIVE AND IS CURRENT WITH RESPECT TO THESE SECURITIES, OR (II) PURSUANT TO A SPECIFIC EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT, BUT ONLY UPON HOLDER HEREOF FIRST HAVING OBTAINED THE WRITTEN OPINION OF COUNSEL TO THE MAKER, OR OTHER COUNSEL, REASONABLY ACCEPTABLE TO THE MAKER, THAT THE PROPOSED DISPOSITION IS CONSISTENT WITH ALL APPLICABLE PROVISIONS OF THE SECURITIES ACT AS WELL AS ANY APPLICABLE “BLUE SKY” OR OTHER SIMILAR SECURITIES LAW.
THIS NOTE AND THE INDEBTEDNESS EVIDENCED BY THIS NOTE, AND ALL RIGHTS OF THE HOLDER HEREOF WITH RESPECT THERETO, ARE SUBORDINATE IN THE MANNER AND TO THE EXTENT SET FORTH IN THAT CERTAIN SUBORDINATION AGREEMENT, DATED AS OF EVEN DATE HEREWITH (THE “SUBORDINATION AGREEMENT”), BY AND AMONG (I) RECRO PHARMA, INC. (“BORROWER”), (II) IRISYS, INC. (“SELLER”) AND (III) ATHYRIUM OPPORTUNITIES III ACQUISITION LP, AS ADMINISTRATIVE AGENT UNDER THE SENIOR CREDIT AGREEMENT (AS DEFINED BELOW) (THE “ADMINISTRATIVE AGENT”), TO THE INDEBTEDNESS (INCLUDING INTEREST) OWED BY THE BORROWER AND THE OTHER LOAN PARTIES (AS DEFINED IN THE SENIOR CREDIT AGREEMENT) TO THE ADMINISTRATIVE AGENT AND THE LENDERS (AS DEFINED IN THE SENIOR CREDIT AGREEMENT) PURSUANT TO THAT CERTAIN CREDIT AGREEMENT DATED AS OF NOVEMBER 17, 2017 (AS AMENDED, RESTATED, AMENDED AND RESTATED, SUPPLEMENTED, REFINANCED, RENEWED, REPLACED, IN WHOLE OR PART, OR OTHERWISE MODIFIED FROM TIME TO TIME, THE “SENIOR CREDIT AGREEMENT”) AMONG THE BORROWER, THE OTHER LOAN PARTIES PARTY THERETO, THE ADMINISTRATIVE AGENT AND THE LENDERS FROM TIME TO TIME PARTY THERETO; AND THE HOLDER OF THIS INSTRUMENT, BY ITS ACCEPTANCE HEREOF, IRREVOCABLY AGREES TO BE BOUND BY THE PROVISIONS OF THE SUBORDINATION AGREEMENT.
THIS PROMISSORY NOTE MAY NOT BE ASSIGNED OR TRANSFERRED EXCEPT IN ACCORDANCE WITH THE EXPRESS TERMS HEREOF.
RECRO PHARMA, INC.
SUBORDINATED PROMISSORY NOTE
August 13, 2021 (the “Issue Date”) $6,116,672.72
FOR VALUE RECEIVED, Recro Pharma, Inc., a Pennsylvania corporation (the “Borrower”), hereby promises to pay to the order of IriSys, Inc., a California corporation or its successors or permitted assigns (“Seller”), in lawful money of the United States of America, the principal amount of SIX MILLION ONE HUNDRED SIXTEEN THOUSAND SIX HUNDRED SEVENTY-TWO DOLLARS AND SEVENTY-TWO CENTS ($6,116,672.72), subject to adjustment pursuant to Section 4 below, together with interest from the Issue Date on the unpaid principal balance as set forth below, in accordance with and
Exhibit 10.2
subject to the provisions of this subordinated promissory note (as it may be amended from time to time, this “Note”).
This Note is being issued pursuant to that certain Unit Purchase Agreement, dated as of August 13 2021, by and among the Borrower, Seller and the other parties thereto (as it may be amended from time to time, the “Purchase Agreement”). Certain capitalized terms used in this Note are defined in Section 6 below.
Exhibit 10.2
2“Change of Control” has the meaning set forth in the Senior Credit Agreement, mutatis mutandis.
Exhibit 10.2
“Note Obligations” means all advances to, and debts, liabilities, obligations, covenants and duties of, the Borrower arising under this Note, whether direct or indirect (including those acquired by assumption), absolute or contingent, due or to become due, now existing or hereafter arising and including interest and fees that accrue after the commencement by or against the Borrower or any affiliate thereof of any proceeding under any debtor relief laws naming such person or entity as the debtor in such proceeding, regardless of whether such interest and fees are allowed or allowable claims in such proceeding. Without limiting the foregoing, the Note Obligations include the obligation to pay principal, interest, expenses, fees, indemnities and other amounts payable by the Borrower under this Note and the Subordination Agreement.
“Paid in Full” or “Payment in Full” shall mean the payment in full in cash of all Senior Debt, and the termination of all letters of credit and all commitments to lend under the Senior Debt Documents.
“Payment Date” means each of the first and second anniversaries of the Issue Date, and the Maturity Date.
“Purchase Agreement Obligation” means (i) an indemnification obligation of Seller to any Purchaser Indemnified Party (as defined in the Purchase Agreement) arising under Section 7.2 of the Purchase Agreement and which may be recovered directly from Seller pursuant to the provisions of Article VII of the Purchase Agreement or (ii) any payment obligation of Seller pursuant to Section 2.7(g) of the Purchase Agreement.
“Senior Debt” shall mean, collectively, all Loan Documents Obligations (as defined in the Senior Credit Agreement) and any indebtedness incurred to refinance, increase, renew, supplement or replace the same.
“Senior Debt Documents” shall mean the Senior Credit Agreement and all other Loan Documents (as defined in the Senior Credit Agreement).
if to Borrower:
Recro Pharma, Inc.
1 E. Uwchlan Ave, Suite 112
Exton, PA 19341
Attention: Ryan Lake
Email: ryan.lake@recrocdmo.com
with a copy (which shall not constitute notice) to:
Troutman Pepper Hamilton Sanders LLP
3000 Two Logan Square
Philadelphia, PA 19103
Exhibit 10.2
Attention: Rachael Bushey, Esq. and Jennifer Porter, Esq.
Email: rachael.bushey@troutman.com; jennifer.porter@troutman.com
If to Seller:
IriSys, Inc.
Attention: Gerald Yakatan
Email: gyakatan@sbcglobal.net
with a copy (which shall not constitute notice) to:
Wilson Sonsini Goodrich & Rosati
Professional Corporation
12235 El Camino Real
San Diego, California 92130
Attention: Martin J. Waters and Jason Skolnik
Fax: (858) 350-2399
Email: mwaters@wsgr.com; jskolnik@wsgr.com
11. Expenses; Waivers. If action is instituted to collect this Note, the Borrower promises to pay all costs and expenses, including, without limitation, reasonable attorneys’ fees and costs, incurred in connection with such action. The Borrower hereby waives notice of default, presentment or demand for payment, protest or notice of nonpayment or dishonor and all other notices or demands relative to this instrument.
12. WAIVER OF JURY TRIAL. BY ACCEPTANCE OF THIS NOTE, LENDER HEREBY AGREES AND THE BORROWER HEREBY AGREES TO WAIVE THEIR RESPECTIVE RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF THIS NOTE OR THE SUBORDINATION AGREEMENT.
[Signature page follows.]
Exhibit 10.2
IN WITNESS WHEREOF, Borrower has executed and delivered this Note on the date first above written.
BORROWER:
RECRO PHARMA, INC.
By: ______________________________
Name:
Its: