Exhibit 10.3
EXHIBIT A
THE SECURITIES REPRESENTED HEREBY ARE SUBJECT TO CERTAIN RESTRICTIONS ON
TRANSFER AND, AMONG OTHER RESTRICTIONS, HAVE NOT BEEN REGISTERED UNDER THE
UNITED STATES SECURITIES ACT OF 1933 (THE "ACT") AND MAY NOT BE OFFERED, SOLD
OR OTHERWISE TRANSFERRED, ASSIGNED, PLEDGED, OR HYPOTHECATED UNLESS AND UNTIL
REGISTERED UNDER THE ACT OR UNLESS
NATIONAL PATENT DEVELOPMENT CORPORATION ("NPDC") HAS RECEIVED AN
OPINION OF COUNSEL OR OTHER EVIDENCE SATISFACTORY TO NPDC AND
ITS COUNSEL THAT SUCH REGISTRATION IS NOT REQUIRED.
NATIONAL PATENT DEVELOPMENT CORPORATION
6% Secured Note due 2009
No. Original Issue Date: November 12, 2004
NATIONAL PATENT DEVELOPMENT CORPORATION, a Delaware corporation
("NPDC"), for value received, hereby promises to pay to Jerome I. Feldman, with
an address at 145 West Patent Road, Bedford Hills, New York 10507, or registered
assigns (the "Holder"), the principal amount of
________________________________________ (________) on the Maturity Date (as
defined below), and, subject to the terms and conditions hereof, to pay interest
on the unpaid principal balance hereof at the rate (calculated on the basis of a
360-day year consisting of twelve 30-day months) of 6% per annum from the date
hereof until the Maturity Date. Accrued interest on the unpaid principal balance
hereof shall be payable semi-annually on the 30th day of April and the 31st day
of October in each year, commencing on April 30, 2005 (each such date and the
Maturity Date being an "Interest Payment Date"). In no event shall any interest
to be paid hereunder exceed the maximum rate permitted by law. In any such
event, this Note shall automatically be deemed amended to permit interest
charges at an amount equal to, but no greater than, the maximum rate permitted
by law.
1. Offering. This Note was issued by NPDC in an offering of $1,590,000
principal amount of 6% Secured Notes due 2009 (collectively, the
"Notes") pursuant to the Note Purchase Agreement, dated November 12,
2004 (the "Purchase Agreement"), among NPDC, its wholly-owned
subsidiary MXL Industries, Inc., a Delaware corporation ("MXL"), and
the purchasers named therein. Capitalized terms used and not otherwise
defined herein have the meanings as defined in the Purchase Agreement.
2. Payments.
(a) Principal of, and any accrued and unpaid interest on, this Note shall
be due and payable in full on October 31, 2009 (the "Maturity Date").
(b) Interest on this Note shall accrue from the most recent Interest
Payment Date to which interest has been paid or, if no interest has
been paid on this Note, from the Original Issue Date, to, but
excluding, the next Interest Payment Date, and, subject to the terms
and conditions hereof, shall be payable in arrears on each Interest
Payment Date.
(c) If any Interest Payment Date falls on a day that is not a Business Day
(as defined below), the payment (of principal or interest or both) due
on such Interest Payment Date will be made on the next succeeding
Business Day with the same force and effect as if made on the Interest
Payment Date. "Business Day" means any day which is not a Saturday or
Sunday and is not a day on which banking institutions are generally
authorized or obligated to close in the City of New York, New York.
(d) Payments of principal and interest on this Note to be made on any
Interest Payment Date shall be made by check sent to the Holder of
record of this Note on the Record Date (as defined below) relating to
such Interest Payment Date. All payments will be delivered to the
address set forth therefor on the note register described below, and
will be in such coin or currency of the United States of America as at
the time of payment shall be legal tender for the payment of public and
private debts. For purposes of determining the holders of record
entitled to receive payment on any Interest Payment Date, NPDC may fix
a record date (the "Record Date"), which shall be not more than five
Business Days prior to such Interest Payment Date. If NPDC does not
otherwise establish a Record Date relating to any Interest Payment
Date, the Record Date shall be the Business Day prior to such Interest
Payment Date. Notwithstanding the foregoing, the Record Date relating
to the Maturity Date shall be the Maturity Date.
(e) NPDC may, at its option, at any time and from time to time, prepay all
or any part of the principal of and accrued interest on this Note,
without payment of any premium or penalty.
(f) If MXL shall sell or otherwise dispose of all or any of the Shares (as
defined below), NPDC shall cause MXL to distribute to NPDC the lesser
of (i) the amount of proceeds of such sale or disposition (net of taxes
and any amounts required to be paid by MXL to the Purchasers or their
respective assignees pursuant to Section 1.4 of the Purchase Agreement)
and (ii) the aggregate of the then outstanding principal of and accrued
interest on all outstanding Notes. Upon receipt of such distribution
from MXL, NPDC shall prepay, without payment of any premium or penalty,
the then outstanding principal of and accrued interest on this Note in
an amount equal to the Pro Rata Portion of such distribution. The "Pro
Rata Portion" means a fraction, the numerator of which is the then
outstanding principal of and accrued interest on this Note and the
denominator of which is the aggregate of the then outstanding principal
of and accrued interest on all outstanding Notes.
(g) If GP Strategies Corporation ("GP") shall receive any proceeds from the
Claim and, out of such proceeds, make a capital contribution to NPDC,
NPDC shall, upon receipt of such capital contribution, prepay, without
payment of any premium or penalty, the outstanding principal of and
accrued interest on this Note in an amount equal to the lesser of (i)
the Pro Rata Portion of such capital contribution and (ii) the then
outstanding principal of and accrued interest on this Note. The "Claim"
means GP's pending claims against MCI Communications Corporation,
Electronic Data Systems Corporation and the Systemhouse subsidiaries
MCI Communications Corporation sold to Electronic Data Systems
Corporation.
(h) All payments on this Note shall be applied first to accrued interest
hereon and the balance to the payment of principal hereof.
(i) The obligations to make the payments provided for in this Note are
absolute and unconditional and not subject to any defense, set-off,
counterclaim, rescission, recoupment or adjustment whatsoever. NPDC
hereby expressly waives demand and presentment for payment, notice of
non-payment, notice of dishonor, protest, notice of protest, bringing
of suit and diligence in taking any action to collect any amount called
for hereunder, and shall be directly and primarily liable for the
payment of all sums owing and to be owing hereon, regardless of and
without any notice, diligence, act or omission with respect to the
collection of any amount called for hereunder.
3. Security. This Note is secured by the Pledge Agreement, dated the
Original Issue Date, executed by MXL for the benefit of the holders of
the Notes, pursuant to which MXL has pledged to the holders of the
Notes all of the shares of capital stock, including 2,068,966 Series B
Convertible Preferred Shares (the "Shares"), of Valera Pharmaceuticals,
Inc. ("Valera") held by MXL.
4. Forced Sale. If this Note remains outstanding on December 31, 2005 and
MXL owns Shares on such date, the holders of Notes constituting a
majority of the then outstanding principal of and accrued interest on
all outstanding Notes may, by written notice to NPDC, require NPDC to
cause MXL to take reasonable efforts to sell as promptly as practicable
such number of Shares as may be necessary to prepay all of the Notes in
full (or, if a sale of all of the Shares shall not be sufficient to
prepay all of the Notes, all of the Shares).
5. Events of Default. The occurrence of any of the following events shall
constitute an event of default (an "Event of Default"):
(a) A default in the payment of the principal on this Note, when and as the
same shall become due and payable, which default shall continue for a
period of five Business Days after the date fixed for the making of
such principal payment.
(b) A default in the payment of any interest on this Note, when and as the
same shall become due and payable, which default shall continue for a
period of 30 Business Days after the date fixed for the making of such
interest payment.
(c) A failure to perform or observe any material covenant or agreement
contained in the Purchase Agreement or this Note within 30 Business
Days after the giving of notice by the Holder of such failure (or, if
such failure is not capable of being remedied within such period, for
such longer period as it is reasonably necessary to effect a remedy so
long as NPDC continues to diligently pursue remedy of such failure).
(d) The occurrence of a default by MXL under the Pledge.
(e) The entry of a decree or order by a court having jurisdiction adjudging
NPDC a bankrupt or insolvent, or approving a petition seeking
reorganization, arrangement, adjustment, or composition of or in
respect of NPDC, under federal bankruptcy law, as now or hereafter
constituted, or any other applicable federal or state bankruptcy,
insolvency or other similar law, and the continuance of any such decree
or order unstayed and in effect for a period of 60 consecutive days; or
the commencement by NPDC of a voluntary case under federal bankruptcy
law, as now or hereafter constituted, or any other applicable federal
or state bankruptcy, insolvency or other similar law, or the consent by
it to the institution of bankruptcy or insolvency proceedings against
it, or the filing by it of a petition or answer or consent seeking
reorganization or relief under federal bankruptcy law or any other
applicable federal or state law, or the consent by it to the filing of
such petition or to the appointment of a receiver, liquidator,
assignee, trustee, sequestration or similar official of NPDC or of any
substantial part of its property, or the making by it of an assignment
for the benefit of creditors, or the admission by it in writing of its
inability to pay its debts generally as they become due, or the taking
of corporate action by NPDC in furtherance of any such action.
6. Remedies Upon Default.
(a) Upon the occurrence, and during the continuance, of an Event of Default
specified in Section 5(a), (b), (c), or (d), the Holder of this Note
may declare all or any part of the unpaid principal amount of this
Note, and all interest accrued and unpaid thereon, to be immediately
due and payable, without presentment, demand, protest or other
formalities of any kind, all of which are hereby expressly waived by
NPDC.
(b) Upon the occurrence of an Event of Default specified in Section 5(e),
all of the principal amount then outstanding of, and all interest
accrued and unpaid on, the Notes shall automatically become immediately
due and payable without presentment, demand, protest or other
formalities of any kind, all of which are hereby expressly waived by
NPDC.
(c) The Holder may institute such actions or proceedings in law or equity
as it shall deem expedient for the protection of its rights and may
prosecute and enforce its claims against all assets of NPDC.
7. Registration and Transfer.
(a) NPDC shall maintain books for the registration and transfer of the
Notes.
(b) Prior to due presentment for registration of transfer of this Note,
NPDC may deem and treat the registered Holder as the absolute owner
thereof. NPDC shall be entitled to treat the registered holder of any
Note on the note register as the owner in fact thereof for all purposes
and shall not be bound to recognize any equitable or other claim to or
interest in such Note on the part of any other person, and shall not be
liable for any registration or transfer of the Notes which are
registered or to be registered in the name of a fiduciary or the
nominee of a fiduciary unless made with the actual knowledge that a
fiduciary or nominee is committing a breach of trust in requesting such
registration or transfer, or with the knowledge of such facts that its
participation therein amounts to bad faith. In all cases of transfer by
an attorney, executor, administrator, guardian, or other legal
representative, duly authenticated evidence of his or its authority
shall be produced.
(c) This Note has not been registered under the Securities Act of 1933, as
amended (the "Securities Act"). Without limiting the foregoing, the
Holder shall not make any disposition of this Note unless:
(i) Each transferee is an affiliate or family member of the initial Holder;
and
(ii) (A) each transferee has agreed in writing to be bound by the terms of
this Note and the Purchase Agreement, (B) the Holder shall have
notified NPDC of the proposed disposition and shall have furnished NPDC
with a detailed statement of the circumstances surrounding the proposed
disposition, and (C) the Holder shall have furnished NPDC with an
opinion of counsel, which counsel and opinion are reasonably
satisfactory to NPDC, that such disposition will not require
registration of this Note under the Securities Act.
(d) Each Note shall be stamped or otherwise imprinted with a legend
substantially similar to the following (in addition to any legend
required under other applicable securities laws):
THE SECURITIES REPRESENTED HEREBY ARE SUBJECT TO CERTAIN
RESTRICTIONS ON TRANSFER AND, AMONG OTHER RESTRICTIONS, HAVE
NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF
1933 (THE "ACT") AND MAY NOT BE OFFERED, SOLD OR OTHERWISE
TRANSFERRED, ASSIGNED, PLEDGED, OR HYPOTHECATED UNLESS AND
UNTIL REGISTERED UNDER THE ACT OR UNLESS NATIONAL PATENT
DEVELOPMENT CORPORATION ("NPDC") HAS RECEIVED AN OPINION OF
COUNSEL OR OTHER EVIDENCE SATISFACTORY TO NPDC AND ITS COUNSEL
THAT SUCH REGISTRATION IS NOT REQUIRED.
(e) NPDC shall register upon its books any permitted transfer of this Note, upon
surrender of same to NPDC with a written instrument of transfer, in the form
attached as Exhibit A, duly executed by the registered Holder or by a duly
authorized attorney thereof and (unless being transferred to NPDC) by the
transferee or by a duly authorized attorney thereof, together with such other
documents as may be required for such transfer as provided above. Upon any such
registration of transfer, new Note(s) shall be issued to the transferee(s) and
the surrendered Note shall be canceled by NPDC. This Note may also be exchanged,
at the option of the Holder, for new Notes representing in the aggregate the
principal amount of this Note then outstanding. (f) Upon receipt by NPDC of
reasonable evidence of the ownership of and the loss, theft, destruction, or
mutilation of this Note and, in the case of loss, theft, or destruction, of
indemnity reasonably satisfactory to NPDC, or, in the case of mutilation, upon
surrender and cancellation of the mutilated Note, NPDC shall execute and deliver
in lieu thereof a new Note representing the principal amount of such Note then
outstanding.
8. Miscellaneous.
(a) This Note shall be governed by and construed in accordance with the laws of
the State of New York, without giving effect to principles governing conflicts
of law.
(b) Any notice or other communication required or permitted to be given
hereunder shall be in writing and shall be given by Federal Express, Express
Mail or similar overnight delivery or courier service or delivered (in person or
by telecopy, telex or similar telecommunications equipment) against receipt to
the party to whom it is to be given, (i) if to NPDC, at its address at 777
Westchester Avenue, Fourth Floor, White Plains, New York 10604, Attention: Chief
Executive Officer, (ii) if to the Holder, at its address set forth on the first
page hereof, or (iii) in either case, to such other address as the party shall
have furnished in writing in accordance with the provisions of this Section
8(b). Any notice shall be deemed given at the time of receipt thereof.
(c) No course of dealing and no delay or omission on the part of the Holder in
exercising any right or remedy shall operate as a waiver thereof or otherwise
prejudice the Holder's rights, powers or remedies. No right, power or remedy
conferred by this Note upon the Holder shall be exclusive of any other right,
power or remedy referred to herein or now or hereafter available at law, in
equity, by statute or otherwise, and all such remedies may be exercised singly
or concurrently.
IN WITNESS WHEREOF, NPDC has caused this Note to be executed and dated
the day and year first above written.
NATIONAL PATENT DEVELOPMENT CORPORATION
By: ___________________________
Name:
Title:
2
EXHIBIT A
FORM OF ASSIGNMENT
(To be executed by the registered holder if such holder desires to transfer
the attached Note)
FOR VALUE RECEIVED, ______________________ (the "Holder") hereby sells,
assigns, and transfers unto
Name ________________________________
Address_______________________________
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Social Security or Tax Identification Number
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______ Notes, together with all right, title, and interest therein, and does
hereby irrevocably constitute and appoint _______________ attorney to transfer
such Note on the books of National Patent Development Corporation ("NPDC"), with
full power of substitution.
Dated: _________________
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Name of Holder
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Signature
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If executed in a representative or
fiduciary capacity, print name and
title of individual executing this
notice on behalf of the Holder.
NOTE: The above signature should
correspond exactly with the name on
the first page of the attached Note.
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Social Security or Tax Identification Number of Holder
Address of Holder:
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The undersigned transferee, by execution hereof, (i) represents and
warrants to NPDC that (a) such transferee is family member or affiliate of the
initial Holder, (b) the undersigned is acquiring the Note, and will acquire any
shares of NPDC Common Stock (as defined in the Note) issued in payment of any
interest thereon, for investment and without a view to a distribution other than
pursuant to a registration statement under the Securities Act of 1933, as
amended, and applicable state securities laws, or an exemption therefrom, and
(c) the name, address, and social security or tax identification number of the
undersigned is as set forth above, and (ii) agrees to be bound by the terms of
the Note and the Purchase Agreement (as defined in the Note).
Dated: _________________
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Name of Transferee
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Signature
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If executed in a representative or
fiduciary capacity, print name and
title of individual executing this
notice on behalf of the transferee.
NOTE: The above signature should
correspond exactly with the name set
forth above.