Unassociated Document


    
      THIS
        NOTE AND THE SECURITIES ISSUABLE UPON CONVERSION OF THIS NOTE HAVE NOT BEEN
        REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “1933 ACT”), OR THE
        SECURITIES LAWS OF ANY STATE. THIS NOTE MAY NOT BE SOLD, TRANSFERRED, PLEDGED
        OR
        HYPOTHECATED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT UNDER
        THE
        1933 ACT AND SUCH REGISTRATION OR QUALIFICATION AS MAY BE NECESSARY UNDER
        THE
        SECURITIES LAWS OF ANY JURISDICTION, OR AN OPINION OF COUNSEL SATISFACTORY
        TO
        THE MAKER THAT SUCH REGISTRATION OR QUALIFICATION IS NOT
        REQUIRED.

       

      INyX
        PHARMA, LIMITED.

       

      AMENDED
        AND RESTATED 6% PROMISSORY NOTE DUE DECEMBER 31, 2005

       

      (AMENDING
        AND RESTATING THAT CERTAIN 6% PROMISSORY NOTE DUE DECEMBER 31, 2005 DATED
        AS OF
        APRIL 6, 2005)

       

      
        	
                GBP1,676,666.66

                 

              	
                August
                  16, 2005

                 

              


      

      


       

      INyX
        PHARMA, LTD., a company organized under the laws of England and Wales (the
        “Maker”),
        for
        value received, hereby promises to pay to STIEFEL LABORATORIES, INC., a New
        York
        corporation (the “Holder”),
        or
        its permitted assigns, in accordance with the terms and conditions of this
        Promissory Note (the "Note"),
        the
        sum of (A) the aggregate principal amount of ONE MILLION SIX HUNDRED SEVENTY
        SIX
        THOUSAND POUNDS STERLING AND SIXTY SIX PENCE (GBP1,676,666.66) (collectively,
        the “Principal
        Amount”),
        plus
        interest (computed on the basis of a 360 day year) on the Principal Amount
        from
        time to time remaining unpaid hereon at the rate of SIX PERCENT (6%) per
        annum
        from the date hereof until the entire Principal Amount hereof and all interest
        accrued thereon is paid. The Principal Amount hereof and interest hereon
        shall
        be payable in Pounds Sterling to the following account of the Holder in Miami,
        Florida: Bank of America NA, London, Swift BOFAGB22, Sort code 16-50-50,
        Acct
        name: Bank of America N.A. U.S. FX Operations, Acct number: 600890661010,
        FFC
        Stiefel Laboratories, or at such other location as the Holder may notify
        the
        Maker from time to time.

      


      1. Principal
        and Interest.
        The
        Maker will repay the Principal Amount to the Holder in one (1) installment
        of
        ONE MILLION SIX HUNDRED SEVENTY SIX THOUSAND AND SIXTY SIX PENCE
        (GBP1,676,666.66). The Principal Amount and any interest thereon will be
        due and
        payable on September 9, 2005 (the “Maturity
        Date”).
        All
        principal, interest, fees and expenses not otherwise paid in accordance with
        the
        terms of this Note shall become due and payable on the Maturity
        Date.

       

      2. Events
        of Default.
        The
        Maker agrees that the occurrence of any one or more of the following events
        shall constitute an “Event
        of Default” under
        this Note: (i)
        the
        failure or refusal of the Maker to pay any sum as required under this Note
        within three (3) Business Days after such sum is due; (ii) the failure of
        Maker
        to observe or perform (A) any covenant, agreement or obligation contained
        in
        this Note or (B) in any material respect, any representation or warranty
        contained in this Note; (iii) the breach by the Maker, in any material respect,
        of any covenant, agreement, warranty, representation, or obligation of the
        Maker
        under that certain Manufacturing and Supply Agreement, by and between the
        Maker
        and the Holder, dated March 7, 2003 (as may be amended or supplemented, from
        time to time, the “Supply
        Agreement”)
        not
        cured within 60 days after written notice of the breach (as provided in Section
        10.2 thereof); (iv) the termination of the Supply Agreement, other than a
        termination caused by the breach or insolvency of the Holder, or a termination
        of the Supply Agreement by the Holder without cause; (v) the Maker makes
        an
        assignment for the benefit of creditors, files a petition in bankruptcy,
        applies
        to or petitions any tribunal for the appointment of a custodian, receiver,
        intervenor or trustee for the Maker or a substantial part of the Maker’s assets;
        or if the Maker commences any proceeding under any bankruptcy, arrangement,
        readjustment of debt, dissolution or liquidation law or statute of any
        jurisdiction, whether now or hereafter in effect; or if any such petition
        or
        application is filed or proceeding commenced against the Maker or if any
        such
        custodian, receiver, intervenor or trustee shall have been appointed and
        the
        same shall have not been dismissed within thirty (30) days after such filing
        commencement or appointment; and (vi) the Note, or any provision thereof,
        shall
        at any time after its execution and delivery and for any reason whatsoever,
        ceases to be in full force and effect, valid and enforceable in England or
        in
        the State of New York, U.S.A., or the Maker shall at any time fail to agree
        that
        the Note and all provisions hereof are in full force and effect, valid and
        enforceable both in England and the State of New York, U.S.A..

       

      
        
           

        

        
           

          
            

          

        

        
           

        

      

       

      In
        the
        event of an Event of Default, the Holder of the Note may, so long as such
        condition exists, declare the entire outstanding principal balance and unpaid
        accrued interest hereon immediately due and payable.

      


      3. Default
        Rate of Interest.
        At
        the
        Holder’s sole option the entire unpaid principal balance of the Note shall bear
        interest until paid at an augmented annual rate (the “Default Rate”) from and
        after the occurrence and during the continuation of any Event of Default,
        regardless of whether the Holder also elects to accelerate the maturity of
        the
        debt evidenced by this Note; provided, however, that after judgment all such
        sums shall bear interest at the greater of the Default Rate or the rate
        prescribed by applicable law for judgments. At the Holder’s sole option, all
        interest which accrues at the Default Rate shall be due and payable on the
        Holder’s demand from time to time. The Default Rate shall equal the lesser of
        (i) eighteen percent (18%) per annum or (ii) the maximum interest rate permitted
        by applicable law, if any.

       

      4. Rights
        and Remedies.
        The
        Holder shall be entitled to pursue any and all rights and remedies provided
        by
        applicable law (including the New York Uniform Commercial Code) and under
        the
        terms of this Note, all of which shall be cumulative and may be exercised
        successively or concurrently. Upon the occurrence and during the continuation
        of
        any Event of Default, the Holder at its option may at any time declare any
        or
        all other liabilities of the Maker to the Holder immediately due and payable
        (notwithstanding any contrary provisions thereof) without demand or notice
        of
        any kind. In addition, the Holder shall have the right to set-off any and
        all
        sums owed to the Maker by the Holder in any capacity (whether or not then
        due)
        against the debt evidenced by this Note and/or against any other liabilities
        of
        the Maker to the Holder. The Holder’s delay in exercising or failure to exercise
        any rights or remedies to which the Holder may be entitled if any Event of
        Default occurs shall not constitute a waiver of any of the Holder’s rights or
        remedies with respect to that or any subsequent Event of Default, whether
        of the
        same or a different nature, nor shall any single or partial exercise of any
        right or remedy by the Holder preclude any other or further exercise of that
        or
        any other right or remedy. No waiver of any right or remedy by the Holder
        shall
        be effective unless made in writing and signed by the Holder, nor shall any
        waiver on one occasion apply to any future occasion, but shall be effective
        only
        with respect to the specific occasion addressed in that signed
        writing.

       

      
        
           

        

        
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      5. Notices.
        All
        notices, demands or other communications to be given or delivered under or
        by
        reason of the provisions herein will be made pursuant to and in accordance
        with
        Article 14 of the Supply Agreement.

       

      6. Prepayment.
        This
        Note may be prepaid by the Maker, in whole or in part, without incurring
        any
        prepayment penalty. Payments shall be applied first to the unpaid fees and
        expenses of the Holder, then to accrued and unpaid interest, with the balance
        to
        the Principal Amount. 

       

      7. No
        Transfer.
        This
        Note may not be offered, sold, transferred, pledged or otherwise disposed
        of, in
        whole or in part, to any person or entity other than to any affiliate of
        the
        Holder.

       

      8. GOVERNING
        LAW. THIS NOTE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE
        LAWS OF
        THE STATE OF NEW YORK, WITHOUT REGARD TO THE CONFLICTS OF LAW PRINCIPLES
        THEREOF.

       

      9. Jurisdiction.
        The
        Maker irrevocably and unconditionally submits, for itself and its property,
        to
        the exclusive jurisdiction of any Florida court or Federal court of the United
        States of America sitting in Miami-Dade County, and any appellate court from
        any
        thereof, in any action or proceeding arising out of or relating to this Note,
        or
        for recognition or enforcement of any judgment, and the Maker hereby irrevocably
        and unconditionally agrees that all claims in respect of any such action
        or
        proceeding may be heard and determined in any such Florida State court or,
        to
        the fullest extent permitted by law, in such Federal court. The Maker hereto
        agrees that a final judgment in any such action or proceeding shall be
        conclusive and may be enforced in other jurisdictions by suit on the judgment
        or
        in any other manner provided by law.

       

      The
        Maker
        irrevocably and unconditionally waives, to the fullest extent it may legally
        and
        effectively do so, any objection that it may now or hereafter have to the
        laying
        of venue of any suit, action or proceeding arising out of or relating to
        this
        Note in any Florida State or Federal court sitting in Miami-Dade County.
        The
        Maker hereby irrevocably waives, to the fullest extent permitted by law,
        the
        defense of an inconvenient forum to the maintenance of such action or proceeding
        in any such court.

       

      10. Waiver
        and Consent.
        To the
        fullest extent permitted by law, the Maker hereby: (a) waives demand,
        presentment, protest, notice of dishonor, suit against or joinder of any
        other
        person, and all other requirements necessary to charge or hold the Maker
        liable
        with respect to the Note; (b) waives any right to immunity from any such
        action
        or proceeding and waives any immunity or exemption of any property, wherever
        located, from garnishment, levy, execution, seizure or attachment prior to
        or in
        execution of judgment, or sale under execution or other process for the
        collection of loans; and (c) waives any right to interpose any set-off or
        counterclaim or to plead any statute of limitations as a defense in any such
        action or proceeding, and waives all statutory provisions and requirements
        for
        the benefit of the Maker, now or hereafter in force.

       

      
        
           

        

        
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      11. Costs,
        Indemnities and Expenses.
        The
        Maker agrees to pay all filing fees and similar charges and all costs incurred
        by the Holder in collecting or securing or attempting to collect or secure
        the
        Note, including attorneys’ fees, whether or not involving litigation and/or
        appellate, administrative or bankruptcy proceedings. The Maker agrees to
        pay any
        documentary stamp taxes, intangible taxes or other taxes (except for federal
        or
        state income or franchise taxes based on the Lender’s net income) which may now
        or hereafter apply to the Note or any payment made in respect of the Note
        or any
        security for the Note, and the Maker agrees to indemnify and hold the Holder
        harmless from and against any liability, costs, attorneys’ fees, penalties,
        interest or expenses relating to any such taxes, as and when the same may
        be
        incurred.

      


      12. Maximum
        Interest Rate.
        In no
        event shall any agreed to or actual exaction charged, reserved or taken as
        an
        advance or forbearance by the Holder as consideration for the Note exceed
        the
        limits (if any) imposed or provided by the law applicable from time to time
        to
        the Note for the use or detention of money or for forbearance in seeking
        its
        collection; the Holder hereby waives any right to demand such excess. In
        the
        event that the interest provisions of this Note or any exactions provided
        for in
        this Note shall result at any time or for any reason in an effective rate
        of
        interest that transcends the maximum interest rate permitted by applicable
        law
        (if any), then without further agreement or notice the obligation to be
        fulfilled shall be automatically reduced to such limit and all sums received
        by
        the Holder in excess of those lawfully collectible as interest shall be applied
        against the principal of the Note immediately upon the Holder’s receipt thereof,
        with the same force and effect as though the payor had specifically designated
        such extra sums to be so applied to principal and the Holder had agreed to
        accept such extra payment(s) as a premium-free prepayment or prepayments.
        During
        any time that the Note bears interest at the maximum lawful rate (whether
        by
        application of this Section, the Default Rate provisions of this Note or
        otherwise), interest shall be computed on the basis of the actual number
        of days
        elapsed and the actual number of days in the respective calendar
        year.

      


      13. WAIVER
        OF TRIAL BY JURY.
        EACH OF THE MAKER AND THE HOLDER HEREBY KNOWINGLY AND VOLUNTARILY WAIVES
        ITS
        RIGHT TO TRIAL BY JURY IN ANY LITIGATION BASED HEREON OR ARISING OUT OF OR
        IN
        CONNECTION WITH ANY TRANSACTION CONTEMPLATED HEREBY.

      


      14. No
        Further Extensions.
        The
        Maker hereby agrees not to request, directly or through its attorneys or
        other
        representatives, any extensions, forbearances, forgiveness or other relief
        relating to the repayment of this Note.

      


      [Signature
        Page to Follow]

       

      
        
           

        

        
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      IN
        WITNESS WHEREOF,
        the
        Maker has caused this Note to be duly executed as of the date set forth
        below.

       

      
        	DATED:August
                16, 2005	 	 
	 	INyX
                PHARMA, LTD.
	 
 	 
 	 
 
	 	By:  	/s/ Jack
                Kachkar
	 	
                
Name:
                Jack Kachkar
	 	Title: Director


      

      


       

      
        
           

        

        
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