Blueprint





 






 Exhibit 10.22



THIS
PROMISSORY EQUITY SECURITY AND THE SECURITIES ISSUABLE UPON
CONVERSION HEREOF HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE “ACT”), OR UNDER THE SECURITIES
LAWS OF APPLICABLE STATES. THESE SECURITIES ARE SUBJECT TO
RESTRICTIONS ON TRANSFERABILITY AND RESALE AND MAY NOT BE
TRANSFERRED OR RESOLD EXCEPT AS PERMITTED UNDER THE ACT AND
APPLICABLE STATE SECURITIES LAWS, PURSUANT TO REGISTRATION UNDER
SUCH LAWS OR AN EXEMPTION FROM SUCH REGISTRATION REQUIREMENT.
INVESTORS SHOULD BE AWARE THAT THEY MAY BE REQUIRED TO BEAR THE
FINANCIAL RISKS OF THIS INVESTMENT FOR AN INDEFINITE PERIOD OF
TIME. THE ISSUER OF THESE SECURITIES MAY REQUIRE AN OPINION OF
COUNSEL IN FORM AND SUBSTANCE SATISFACTORY TO THE ISSUER TO THE
EFFECT THAT ANY PROPOSED TRANSFER OR RESALE IS IN COMPLIANCE WITH
THE ACT AND ALL APPLICABLE STATE SECURITIES LAWS.


 


8%
SENIOR CONVERTIBLE EQUITY SECURITY


	
 $100,000

	
 November
26, 2012







 



Subject
to the terms and conditions of this Convertible Equity Security,
for value received, Adgero
Biopharmaceuticals, Inc., a Delaware corporation (the
“Buyer”),
hereby promises to pay to the order of St. Cloud Investments, LLC
(the “Seller”), the
principal sum of One Hundred Thousand Dollars ($100,000) (the
“Principal
Amount”) in cash or equity at Buyer’s
discretion, together with interest thereon accruing on and from the
date hereof on the Balance at an annual rate equal to eight percent (8%). Interest shall
accrue daily and be calculated based on a 360-day year of twelve
30-day months, but in no event shall the rate of interest exceed
the maximum rate, if any, allowable under applicable law.
“Balance”
means, at the applicable time, the sum of all then outstanding
principal of this Convertible Equity Security and all then accrued
but unpaid interest.


This
senior Convertible Equity Security is issued by the Buyer pursuant
to that certain Asset Purchase Agreement entered into as of
November 26, 2012 by and between Buyer and Seller (the
“Purchase
Agreement”), and is subject to, and Buyer and Seller
shall be bound by, all the terms, conditions and provisions of the
Asset Purchase Agreement.


The
following is a statement of the rights of Seller and the terms and
conditions to which this Convertible Equity Security is subject and
to which the Seller, by acceptance of this Convertible Equity
Security, agrees:


1. Payment. If this Convertible
Equity Security has not been previously converted (as provided in
Section 5 hereof), then the Principal Amount of this Convertible
Equity Security, all accrued and unpaid interest and all other
amounts accrued under this Convertible Equity Security shall, on
the Maturity Date, be payable in cash or equity at Buyer’s
discretion. “Maturity Date”
shall mean November 26, 2019. No interest shall be payable other
than as set forth in the preceding sentence. Unless the
indebtedness outstanding under this Convertible Equity Security is
converted in accordance with Section 5 hereof, all payments on
account of principal and interest shall be made in lawful money of
the United States of America at the principal office of the Seller,
or such other place as the holder hereof may from time to time
designate in writing to the Buyer.



 

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2. Prepayment. Buyer may prepay
this Convertible Equity Security in cash at any time prior to the
Payment Equity Financing.


3. Priority. This Convertible
Equity Security shall be senior in all respects (including right of
payment) to all other indebtedness of the Buyer, now existing or
hereafter.


4. Amendments and Waivers; Resolutions of
Dispute; Notice. The amendment or waiver of any term of this
Convertible Equity Security, the resolution of any controversy or
claim arising out of or relating to this Convertible Equity
Security and the provision of notice shall be conducted pursuant to
the terms of the Purchase Agreement.


5. Conversion of Convertible Equity
Security upon a Payment Equity Financing.


(a) If the Buyer has
not paid the entire Balance within 5 days following the last
closing of the Payment Equity Financing (the “Payment Equity
Financing Closing”), then the entire Balance then outstanding
under this Convertible Equity Security shall be convertible into
that number of shares of the security sold in the Payment Equity
Financing as is equal to the Conversion Amount (as defined below)
divided by the Payment Equity Financing Purchase Price (as defined
below). Buyer shall deliver to Seller notice of the Payment Equity
Financing prior to the Payment Equity Financing Closing, notifying
the Seller of the conversion to be effected, including specifying
(i) the Conversion Amount (calculated as of the Conversion Date),
(ii) the Payment Equity Financing Purchase Price and (iii) the
anticipated date of the Payment Equity Financing
Closing.


(i) Payment Equity Financing
Defined. For purposes of this Convertible Equity Security,
the term Payment Equity Financing shall mean the consummation of
the combined total equity financing in excess of Five Million
Dollars ($5,000,000) including all financing consummated by either
the Buyer or the Buyer Licensee in each case occurring after the
date hereof and on or before the Maturity Date. “Buyer Licensee” means any
Person, Group of People or Entity to which the Buyer licenses or
transfers any intellectual property rights in the Acquired Assets
(as such term is defined in that certain Asset Purchase Agreement,
dated November 26, 2012, by and between the Buyer and Seller). In
the event of any conflicts or inconsistencies between this
definition and the language contained in the Asset Purchase
Agreement, the language in the Asset Purchase Agreement shall
prevail.


(ii) Payment
Equity Financing Purchase Price Defined. For purposes of
this Convertible Equity Security, the term Payment Equity Financing
Purchase Price shall mean an amount equal to (i) seventy percent (70%) times (ii) the per
share purchase price paid by those investors participating in that
investment round which causes the five million dollar threshold of
the Payment Equity Financing to be met.



 

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(iii) Conversion
Amount Defined. For purposes of this Convertible Equity
Security, the term Conversion Amount shall mean the sum of all
unpaid principal and accrued interest outstanding under this
Convertible Equity Security as of the date of the Payment Equity
Financing.


(b) Termination of Rights. This
Convertible Equity Security, and all rights and obligations
hereunder shall terminate upon the termination of the Asset
Purchase Agreement or upon effective conversion or repayment of the
entire Balance of the Convertible Equity Security, whether or not
this Convertible Equity Security has been surrendered to Buyer for
cancellation. Prior to the Payment Equity Financing, Buyer may
terminate its obligation under this Convertible Equity Security. In
the event that Buyer initiates such a termination prior to the
Payment Equity Financing, Buyer shall return all assets still in
existence that were purchased in the Asset Purchase
Agreement.


(c) Delivery of Stock Certificates; No
Fractional Shares. Subject to Section 5(c) above, as
promptly as practicable after any conversion of this Convertible
Equity Security, Buyer at its expense will issue and deliver to
Seller a certificate or certificates evidencing the number of full
equity securities as are issuable to Seller in connection with a
conversion under this Section 5. No fractional shares of any of
Buyer’s equity securities will be issued in connection with
any conversion hereunder. In lieu of fractional shares which would
otherwise be issuable, Buyer shall pay cash equal to the product of
such fraction multiplied by the price per share of such other
securities issuable to Seller upon such conversion.


6. Officers and Directors not
Liable. In no event shall any officer or director of the
Buyer be liable for any amounts due and payable pursuant to this
Convertible Equity Security.


7. Governing Law. All questions
concerning the construction, validity, enforcement and
interpretation of this Convertible Equity Security shall be
governed by and construed and enforced in accordance with the
internal laws of the State of New York, without regard to the
principles of conflict of laws thereof. All legal proceedings
concerning the interpretation, enforcement and defense of this
Convertible Equity Security (whether brought against a party hereto
or its respective affiliates, directors, officers, shareholders,
employees or agents) shall be commenced in the state and federal
courts sitting in the City of New York, Borough of Manhattan (the
“New York
Courts”). Each party hereto hereby irrevocably submits
to the exclusive jurisdiction of the New York Courts for the
adjudication of any dispute hereunder or in connection herewith or
with any transaction contemplated hereby or discussed herein and
hereby irrevocably waives, and agrees not to assert in any suit,
action or proceeding, any claim that it is not personally subject
to the jurisdiction of such New York Courts, or such New York
Courts are improper or inconvenient venue for such proceeding. EACH
PARTY HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT
PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN
ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS CONVERTIBLE
EQUITY SECURITY OR THE TRANSACTIONS CONTEMPLATED
HEREBY.


8. Severability. The invalidity or
unenforceability of any provision hereof shall in no way affect the
validity or enforceability of any other provision.



 

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9. Headings; Interpretation. In
this Convertible Equity Security, (i) the meaning of defined terms
shall be equally applicable to both the singular and plural forms
of the terms defined; (ii) the captions and headings are used only
for convenience and are not to be considered in construing or
interpreting this Convertible Equity Security and (iii) the words
“including,” “includes” and
“include” shall be deemed to be followed by the words
“without limitation”. All references in this
Convertible Equity Security to sections, paragraphs, exhibits and
schedules shall, unless otherwise provided, refer to sections and
paragraphs hereof and exhibits and schedules attached hereto, all
of which exhibits and schedules are incorporated herein by this
reference. All references to dollars or “$” shall refer
to United States dollars or U.S. “$”.


 


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IN WITNESS WHEREOF, the undersigned has
caused this instrument to be executed by its duly authorized
officers as of the date Payment above written.


ADGERO
BIOPHARMACEUTICALS, INC.


 


 


By:
/S/ Frank G.
Pilkiewicz


Name:
Frank G. Pilkiewicz


Title:
President and CEO


 


On this
26 day of November 2012, before me, the undersigned Notary Public,
personally appeared Michael Khoury, proved to me
through satisfactory evidence of identification, which was/were
California DL, to
be the person whose name is signed on the lines above on behalf of
Buyer, and who swore or affirmed to me that the contents of the
document are truthful and accurate to the best of his/her knowledge
and belief. The above-indicated individual is duly authorized to
execute this document singly on behalf of Buyer and executed this
document of his/her own free will.



/s/Darren F. Haworth  (Seal)


Signature
of Notary


 




 


My
Commission Expires: 10.9.14


 



Acknowledged and agreed by Seller:


 



ST. CLOUD INVESTMENTS, LLC


 


By:
/S/Michael
Khoury


Name:
Michael Khoury


Title:
Director


 




 

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