EXHIBIT 10.28
TERM NOTE
USD 2,000,000 Maximum February 20, 2002
FOR VALUE RECEIVED, the undersigned, Antares Pharma, Inc., a Minnesota
corporation with its principal office located at 707 Eagleview Blvd., Suite 414,
Exton, Pennsylvania, 19341 (the "Maker"), hereby promises to pay to the order of
Dr. Jacques Gonella, an individual residing at Hauptstrasse 16, 4132 Muttenz,
Switzerland (the "Holder"), the principal amount of all advances made by Holder
to Maker (each such event, an "Advance"), including those set forth on Exhibit A
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hereto, on the Maturity Date. The maximum principal amount Holder shall Advance
hereunder shall be USD 2,000,000 and all such Advances shall be made in
increments of USD 1,000,000. Upon each Advance, Maker and Holder shall execute
the Acknowledgement attached hereto as Exhibit B. "Maturity Date" means the
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earlier of (i) August 20, 2002, or (ii) the closing of a private placement of
equity by Maker that nets Maker USD 5,000,000 in proceeds.
Maker promises to pay interest on the unpaid principal amount of each
Advance from the date of such Advance until such amount is paid in full, at the
three (3) month Euribor Rate (Euro Interbank Offered Rate, as published by
Bridge-Telerate) as of the date of each Advance hereof, plus 5%.
All Payments by Maker under this Note shall be (i) made in lawful money
of the United States of America without set-off, deduction or counterclaim of
any kind whatsoever, (ii) credited first to amounts for late charges, if any,
second to amounts for Holder's costs of enforcing this Note, if any, third to
any accrued interest, including interest on interest, under this Note and
finally to the principal balance under this Note, and (iii) deemed paid by Maker
upon their actual receipt by Holder. All payments of interest or principal shall
be made outside of the United States and its possessions, at the place indicated
above or at such places abroad reasonably determined by the Holder. Interest for
any period less than one year shall be calculated on the basis of 1/360th of one
year's interest multiplied by the number of days during such period. The
principal amount and interest due on this Note may be prepaid at any time, in
whole or in part, without premium or penalty.
All interest under this Note shall, from its due date until it is paid,
bear interest at the interest rate set forth above. If any amount of interest
and/or principal under this Note is not received by Holder within 10 (ten) days
after written notice to Maker of Default, then, without any requirement for
additional notice to Maker, Maker shall immediately pay to Holder an additional
sum of 4 (four) percent of such overdue amount as a late charge. Such late
charge represents a fair and reasonable estimate of the costs that Holder will
incur by reason of any late payment by Maker. Acceptance of such late charge by
Holder shall not constitute a waiver of Maker's default with respect to such
overdue amount, nor prevent Holder from exercising any of the other rights and
remedies available to Holder under this Note.
The occurrence of any of the following shall constitute an "Event of
Default" under this Note:
(a) Maker shall fail to pay when due any amounts owing pursuant to
this Note;
(b) Maker shall (i) voluntarily commence any proceeding or file
any petition seeking relief under the United States Bankruptcy
Code or any other federal, state or foreign bankruptcy,
insolvency, liquidation, or similar law, (ii) consent to the
institution of, or fail to contravene in a timely and
appropriate manner, any such proceeding or the filing of any
such petition, (iii) apply for or consent to the appointment
of a receiver, trustee, custodian, sequestrator or similar
official for it or for a substantial part of its property or
assets, (iv) file an answer admitting the material allegations
of a petition filed against any it in any such proceeding, (v)
make a general assignment for the benefit of creditors, (vi)
become unable, admit in writing its inability or fail
generally to pay its debts as they become due, or (vii) take
any action for the purpose of effecting any of the foregoing;
(c) An involuntary proceeding shall be commenced or an involuntary
petition shall be filed in a court of competent jurisdiction
seeking (i) relief in respect of Maker, or of a substantial
part of the property or assets of Maker, under the United
States Bankruptcy Code or any other federal, state or foreign
bankruptcy, insolvency, receivership or similar law, (ii) the
appointment of a receiver, trustee, custodian, sequestrator or
similar official for Maker or for a substantial part of the
property of Maker; and such proceeding or petition shall
continue undismissed for thirty (30) days or an order or
decree approving or ordering any of the foregoing shall
continue unstayed and in effect for thirty (30) days;
In the event of any such Event of Default, and at any time thereafter,
all amounts owing pursuant to this Note to be immediately due and payable in
full and may exercise any and all rights and remedies available to Holder
pursuant to this Note or under applicable law.
Failure to record any advance on Exhibit A hereto shall not affect the
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rights of Holder hereunder, and all such Advances, whether recorded on Exhibit A
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or not, shall constitute an Advance made hereunder. Nothing herein shall be
construed as a commitment to lend by Holder or otherwise require Holder to
advance funds to Maker, and the making of any Advance shall be at the sole
discretion of the Holder.
Whenever Maker or Holder shall desire to give or serve any notice,
demand, request or other communication with respect to this Note, each such
notice, demand, request or other communication shall be in writing and shall be
deemed to have been given if sent by hand delivery, overnight courier or
certified mail, postage prepaid, addressed to the Maker or Holder at the
addresses set forth in the first paragraph of this Note.
The Maker hereby (a) waives demand, presentment for payment, notice of
nonpayment, protest and notice of protest and all other notices, and (b) waives
diligence in collecting this Note. In the event the interest reserved in this
Note is ever determined to be usurious, it shall
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automatically be adjusted, ab initio, to a rate and/or amount which was the
highest permitted by law at the time the Note was made, and the indebtedness
evidenced hereby, subject to such adjustment, shall remain in full force and
effect.
The prevailing party to this Note shall be entitled to recover from the
unsuccessful party to this Note all costs, expenses and actual attorney's fees
relating to the enforcement or interpretation of, or any litigation or
arbitration relating to, this Note.
This Note may be modified only by a writing executed by the party to
this Note against whom enforcement of such modification is sought.
This Note shall be binding upon and shall inure to the benefit of the
successors-in-interest and assigns of each party to this Note. Nothing in this
Paragraph shall create any rights enforceable by any person not a party to this
Note, except for the rights of the successors-in-interest and assigns of each
party to this Note, unless such rights are expressly granted in this Note to
other specifically identified persons.
Time and strict and punctual performance are of the essence with
respect to each provision of this Note.
This Note shall be governed by the laws of the State of Minnesota,
exclusive of the conflicts of law provisions thereof.
ANTARES PHARMA, INC.
By: /s/ Roger G. Harrison
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Its: CEO and President
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