Exhibit 10.1


 


THIRD AMENDED AND RESTATED


2014 CREDIT FACILITY AGREEMENT


 


THIRD AMENDED AND RESTATED
2014 CREDIT FACILITY AGREEMENT (the “Agreement”) by and between Protalex, Inc., a Delaware corporation (the
“Company”) and Niobe Ventures, LLC, a Delaware limited liability company (“Niobe”), dated
as of October 31, 2016.


 


WHEREAS, the Company
and Niobe are currently parties to the Seconded Amended and Restated 2014 Credit Facility Agreement, dated as of June 30, 2016,
covering up to $9.0 million of loans from Niobe to the Company (the “Credit Facility”), of which an aggregate
of $8.885 million in loans have been funded to date (the “Current Credit Facility Balance”); and


 


WHEREAS, incremental
to the Credit Facility and the Current Credit Facility Balance, Niobe is the holder of a Consolidated, Amended and Restated Promissory
Note in the principal amount of $9,219,366 issued by the Company on October 11, 2013 (the “Outstanding Note”);
and


 


WHEREAS, Niobe and
the Company desire to increase the maximum amount of the Credit Facility to $11.25 million and to provide for further loans thereunder
by the Company.


 


NOW THEREFORE, the
parties hereby agree as follows:


 


		1.	Credit Facility.



 


(a)          Niobe
hereby agrees that it will make available to the Company up to $11.25 million (including the Current Credit Facility Balance) in
the form of secured loans at the request of the Company made at any time prior to June 15, 2017 (the “Expiration Date”)
in increments of up to $400,000 in any calendar month; provided, however, that there shall have been no material adverse development
in the Company’s clinical testing of PRTX-100 (a “Material Adverse Event”) prior to any proposed funding date.


 


(b)          Niobe
shall only be obligated to make loans to the Company hereunder to the extent that the conditions set forth herein are satisfied.


 


(c)          Notwithstanding
anything to the contrary that may be contained herein, in no event shall Niobe be required to loan the Company more than $11.25
million hereunder, or to make any loan at any time after the Expiration Date.


 


		2.	Request for Loans.



 


At any time prior to the
Expiration Date, the Company may request that Niobe make a loan to the Company by submitting to Niobe a written request therefor
(a “Loan Request”), which Loan Request must contain: (i) the amount of the loan requested to be made; (ii) a
certification that no Material Adverse Event has occurred; and (iii) the aggregate principal amount of all loans made to the Company
by Niobe pursuant to the 2014 Credit Facility Agreement, as amended, prior to such request. Such Loan Request must be accompanied
by a written certification signed by an executive officer of the Company certifying that no Event of Default has occurred and is
continuing under any outstanding note of the Company.


 




     


     


    

 


		3.	Loans.



 


(a)          Within
ten (10) days of the receipt of a Loan Request which satisfies the terms and conditions hereunder, Niobe shall make a loan to the
Company in an amount equal to the lesser of (i) the amount sought in such Loan Request, or (ii) $11.25 million less the aggregate
amount of all loans previously made to the Company by Niobe pursuant to the 2014 Credit Facility Agreement, as amended (the “Available
Amount”);


 


(b)          If
the amount sought in a Loan Request is in excess of the Available Amount, Niobe, in its sole and absolute discretion, may (but
shall not be obligated to) make a loan to the Company for all or any portion of such excess.


 


(c)          Each
loan made to the Company by Niobe shall be represented by a Senior Secured Promissory Note in the form of Exhibit A annexed
hereto (a “Note”).


 


(d)          The
obligations of the Company pursuant to each Note shall be secured by a first priority perfected security interest in all of the
assets of the Company pursuant to the Fourth Consolidated, Amended and Restated Security Agreement in the form of Exhibit B
annexed hereto.


 


		4.	Notices.



 


All notices or other communications
which are required or permitted hereunder shall be in writing and sufficient if delivered personally or sent by nationally-recognized
overnight courier or by registered or certified mail, postage prepaid, return receipt requested or by facsimile, with confirmation
as provided above addressed as follows:


 


If to Company:


Protalex, Inc.


131 Columbia Turnpike, Suite 1


Florham Park, NJ 07932


Attention: Chief Financial Officer


 


With copies to


Morse, Zelnick, Rose & Lander LLP


825 Third Avenue, 16th Floor


New York, NY 10022


Attention: Kenneth S. Rose, Esq.


Fax: 212-208-6809


 


If to Niobe:


Niobe Ventures, LLC


c/o Arnold P. Kling


410 Park Avenue, 17th Floor


New York, NY 10022


Attention: Arnold P. Kling, Manager


Fax: 212-713-1818


 




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		5.	Governing Law.



 


All questions concerning
the construction, validity, enforcement and interpretation of this Agreement, and any claim, controversy or dispute arising under
or related to this Agreement, the relationship of the parties, and/or the interpretation and enforcement of the rights and duties
of the parties hereunder 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 conflicts of law thereof. Each party agrees that all legal proceedings concerning the
interpretations, enforcement and defense of the transactions contemplated by this Agreement (whether brought against a party hereto
or its respective affiliates, directors, officers, shareholders, employees or agents) shall be commenced in the state or 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 any such court, or such New York
Courts are improper or inconvenient venue for such proceeding. Each party hereby irrevocably waives personal service of process
and consents to process being served in any such suit, action or proceeding by mailing a copy thereof via registered or certified
mail or overnight delivery (with evidence of delivery) to such party at the address in effect for notices to it under this Agreement
and agrees that such service shall constitute good and sufficient service of process and notice thereof Nothing contained herein
shall be deemed to limit in any way any right to serve process in any manner permitted by law. 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 Agreement or the transactions contemplated hereby. If either party shall commence an action or proceeding
to enforce any provisions of this Agreement, then the prevailing party in such action or proceeding shall be reimbursed by the
other party for its attorney’s fees and other costs and expenses incurred with the investigation, preparation and prosecution
of such action or proceeding.


 


		6.	Waiver.



 


Any waiver by the Company
or Niobe of a breach of any provision of this Agreement shall not operate as or be construed to be a waiver of any other breach
of such provision or of any breach of any other provision of this Agreement.


 


		7.	Severability.



 


If any provision of this Agreement is invalid,
illegal or unenforceable, the balance of this Agreement shall remain in effect, and if any provision is inapplicable to any person
or circumstance, it shall nevertheless remain applicable to all other persons and circumstances.


 


	 	PROTALEX, INC.
	 	 	 
	 	By:	 
	 	 	Kirk M. Warshaw
	 	 	  Chief Financial Officer
	 	 	 
	 	NIOBE VENTURES, LLC
	 	 	 
	 	By:	 
	 	 	Arnold P. Kling
	 	 	  Manager


 




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EXHIBIT A


 


SECURED PROMISSORY NOTE


 


	$__________________	___________, 2016
	 	New York, New York


 


FOR VALUE RECEIVED, PROTALEX,
INC., a Delaware corporation (“Protalex”), having an address at 131 Columbia Turnpike, Suite 1, Florham Park, NJ 07932
(the “Company”), unconditionally promise to pay to the order of NIOBE VENTURES, LLC, a Delaware limited liability company
(hereinafter referred to as the “Holder”), at the offices of Morse, Zelnick, Rose & Lander LLP, 825 Third Avenue,
16th floor, New York, New York 10022, or at such other place as Holder may designate in writing, the principal sum of ________________________________
and 00/100 Dollars ($_________.00) (the “Principal Sum”), with interest thereon computed from the date hereof until
maturity, whether on the Maturity Date (as hereinafter defined), by acceleration, or otherwise, at the rate of three percent (3.00%)
per annum (the “Interest Rate”), and thereafter, in accordance with the terms of this Note, at the Default Rate (as
hereinafter defined and governed), together with any costs, expenses and attorneys’ fees incurred by Holder pursuant to the
provisions hereof. Any amounts that remain unpaid after the Maturity Date shall thereafter bear interest at the rate of twelve
percent (12%) per annum (the “Default Rate”). Interest as aforesaid shall be calculated on the basis of actual number
of days elapsed over a year of 360 days.


 


The Principal Sum and all
accrued interest on this Note shall be due on March 31, 2018 or such earlier date as provided for in Section 5 hereof (the “Maturity
Date”). The Maturity Date is subject to acceleration in accordance with Section 4 hereof.


 


Section 1.          
Promissory Note. This Note is a direct debt obligation of the Company and, pursuant to the Fifth Consolidated, Amended
and Restated Security Agreement dated as of October 31, 2016 (the “A/R Security Agreement”) all of the Company’s
obligations hereunder are secured by a first priority perfected security interest in all of the assets of the Company (the “Security”)
for the benefit of the Holder.


 


Section 2.             Definitions.
For the purposes hereof, in addition to the terms defined elsewhere in this Note the following terms shall have the following
meanings:


 


“Business
Day” means any day except Saturday, Sunday and any day which shall be a federal legal holiday in the United States or
a day on which banking institutions in the State of New York are authorized or required by law or other government action to close.


 


“Event
of Default” shall have the meaning set forth in Section 6.


 


“Fundamental
Transaction” shall have the meaning set forth in Section 4.


 


“Liquidity
Event” shall have the meaning set forth in Section 5.


 


“Original
Issue Date” means the date of the first issuance of this Note regardless of the number of transfers of any Note and regardless
of the number of instruments which may be issued to evidence such Note.


 


“Person”
means a corporation, an association, a partnership, organization, a business, an individual, a government or political subdivision
thereof or a governmental agency.


 




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“Subsidiary”
means any Person in which the Company owns more than 50% of the outstanding equity.


 


Section 3.              Registration
of Transfers and Exchanges.


 


a)            Different
Denominations. This Note is exchangeable for an equal aggregate principal amount of Notes of different authorized
denominations as requested by the Holder surrendering the same, no service charge will be made for such registration of
transfer or exchange.


 


b)             Reliance on
Note Register. Prior to due presentment to the Company for transfer of this Note, the Company and any agent of the Company
may treat the Person in whose name this Note is duly registered on the Company’s books and records as the owner hereof for
the purpose of receiving payment as herein provided and for all other purposes, whether or not this Note is overdue, and neither
the Company nor any such agent shall be affected by notice to the contrary.


 


Section 4.             Acceleration
of Maturity Date. If, at any time while this Note is outstanding: (A) the Company effects any merger or consolidation of the
Company with or into another Person, (B) the Company effects any sale of all or substantially all of its assets in one or a series
of related transactions, (C) any tender offer or exchange offer (whether by the Company or another Person) is completed pursuant
to which holders of Common Stock are permitted to tender or exchange their shares for other securities, cash or property, or (D)
the Company effects any reclassification of the Common Stock or any compulsory share exchange pursuant to which the Common Stock
is effectively converted into or exchanged for other securities, cash or property (in any such case, a “Fundamental Transaction”),
then, immediately prior to the occurrence of such Fundamental Transaction the Principal Sum and all accrued but unpaid interest
payable hereunder shall automatically become, at the Holder’s election, immediately due and payable in cash.


 


Section 5.           Mandatory Prepayment,
Partial Prepayment. If, at any time while this Note is outstanding, the Company receives in the aggregate, from a single or
multiple “Liquidity Events” (as defined below), gross proceeds in excess of $10,000,000 (“Gross Proceeds”),
then, in such event, a payment, in the aggregate (each, a “Mandatory Prepayment Amount”), in reduction of the amount
then outstanding under this Note and any other note from the Company to the Holder shall immediately be due and payable in an amount
equal to twenty-five (25%) percent of the Gross Proceeds received (each, a “Mandatory Prepayment Event”). The Mandatory
Prepayment Amount shall be allocated pro rata to reduce the amount then outstanding under this Note and any other note from the
Company to the Holder. A “Liquidity Event” shall mean each of (a) the sale of any of the Company’s equity, or
equity-linked, securities, and (b) the receipt of proceeds, directly or indirectly related to a development and/or commercialization
relationship entered into with an unaffiliated third party.


 


Section 6.              Events
of Default.


 


a)            Event of
Default. Wherever used herein, means any one of the following events (whatever the reason and whether it shall be
voluntary or involuntary or effected by operation of law or pursuant to any judgment, decree or order of any court, or any
order, rule or regulation of any administrative or governmental body):


 


i.            any
default in the payment of (A) the principal, or (B) interest on this Note or any other note issued by the Company to the Holder
as and when the same shall become due and payable (whether on the Maturity Date, upon a Mandatory Prepayment Event or by acceleration
or otherwise) which default is not cured within ten (10) Business Days after written notice from the Holder;


 




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ii.         (A)
there is commenced against the Company or any Subsidiary thereof a case under any applicable bankruptcy or insolvency laws as now
or hereafter in effect or any successor thereto, or any other proceeding under any reorganization, arrangement, adjustment of debt,
relief of debtors, dissolution, insolvency or liquidation or similar law of any jurisdiction whether now or hereafter in effect
relating to the Company or any Subsidiary thereof which remains undismissed for a period of 60 days; or (B) the Company or any
Subsidiary thereof is adjudicated by a court of competent jurisdiction insolvent or bankrupt; or any order of relief or other order
approving any such case or proceeding is entered; or (C) the Company or any Subsidiary thereof suffers any appointment of any custodian
or the like for it or any substantial part of its property which continues undischarged or unstayed for a period of 60 days.


 


b)             Remedies
Upon Event of Default. If any Event of Default occurs, the full principal amount of this Note, together with interest and
other amounts owing in respect thereof, to the date of acceleration shall become, at the Holder’s election, immediately
due and payable in cash. The Holder need not provide and the Company hereby waives any presentment, demand, protest or other
notice of any kind, and the Holder may immediately and without expiration of any grace period enforce any and all of its
rights and remedies hereunder and all other remedies available to it under applicable law. Such declaration may be rescinded
and annulled by Holder at any time prior to payment hereunder and the Holder shall have all rights as a Note holder until
such time, if any, as the full payment under this Section shall have been received by it. No such rescission or annulment
shall affect any subsequent Event of Default or impair any right consequent thereon.


 


Section 7.          Miscellaneous.


 


a)              Priority of Payment.
Payments under this Note shall be applied first to accrued and unpaid interest and then to the Principal Sum outstanding. All
amounts due under this Note shall be payable without setoff, counterclaim or any other deduction whatsoever.


 


b             Notices.
Any and all notices or other communications or deliveries to be provided by the Holder hereunder shall be in writing and delivered
personally, by facsimile, sent by a nationally recognized overnight courier service, addressed to the Company, at 131 Columbia
Turnpike, Suite 1, Florham Park, NJ 07932, attention: Chief Financial Officer, or such other address or facsimile number as the
Company may specify for such purposes by notice to the Holder delivered in accordance with this Section. Any and all notices or
other communications or deliveries to be provided by the Company hereunder shall be in writing and delivered personally, by facsimile,
sent by a nationally recognized overnight courier service addressed to the Holder at the facsimile, telephone number or address
of such Holder appearing on the books of the Company, or if no such facsimile telephone number or address appears, at the principal
place of business of the Holder. Any notice or other communication or deliveries hereunder shall be deemed given and effective
on the earliest of (i) the date of transmission, if such notice or communication is delivered via facsimile at the facsimile telephone
number specified in this Section prior to 5:30 p.m. (New York City time), (ii) the date after the date of transmission, if such
notice or communication is delivered via facsimile at the facsimile telephone number specified in this Section later than 5:30
p.m. (New York City time) on any date and earlier than 11:59 p.m. (New York City time) on such date, (iii) the second Business
Day following the date of mailing, if sent by nationally recognized overnight courier service, or (iv) upon actual receipt by the
party to whom such notice is required to be given.


 


c)             Absolute
Obligation. Except as expressly provided herein, no provision of this Note shall alter or impair the obligation of the
Company, which is absolute and unconditional, to pay the principal of, interest and liquidated damages (if any) on, this Note
at the time, place, and rate, and in the coin or currency, herein prescribed. This Note is a direct debt obligation of the
Company.


 




    	 	A-3	 



     


    

 


d)             Lost or
Mutilated Note. If this Note shall be mutilated, lost, stolen or destroyed, the Company shall execute and deliver, in
exchange and substitution for and upon cancellation of a mutilated Note, or in lieu of or in substitution for a lost, stolen
or destroyed Note, a new Note for the principal amount of this Note so mutilated, lost, stolen or destroyed but only upon
receipt of evidence of such loss, theft or destruction of such Note, and of the ownership hereof; and indemnity, if
requested, all reasonably satisfactory to the Company.


 


e)              Governing
Law. All questions concerning the construction, validity, enforcement and interpretation of this Note, and any claim,
controversy or dispute arising under or related to this Note, the relationship of the parties, and/or the interpretation and
enforcement of the rights and duties of the parties hereunder 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 conflicts of law thereof. Each party
agrees that all legal proceedings concerning the interpretations or enforcement of this Note (whether brought against a party
hereto or its respective affiliates, directors, officers, shareholders, employees or agents) shall be commenced in the state
or 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 (including with respect
to the enforcement of any of the Transaction Documents), 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 any such court, or such New York
Courts are improper or inconvenient venue for such proceeding. Each party hereby irrevocably waives personal service of
process and consents to process being served in any such suit, action or proceeding by mailing a copy thereof via registered
or certified mail or overnight delivery (with evidence of delivery) to such party at the address in effect for notices to it
under this Note and agrees that such service shall constitute good and sufficient service of process and notice thereof.
Nothing contained herein shall be deemed to limit in any way any right to serve process in any manner permitted by law. 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 Note or the transactions contemplated hereby. If either party
shall commence an action or proceeding to enforce any provisions of this Note, then the prevailing party in such action
or proceeding shall be reimbursed by the other party for its attorney’s fees and other costs and expenses incurred with
the investigation, preparation and prosecution of such action or proceeding.


 


f)              Waiver.
Any waiver by the Company or the Holder of a breach of any provision of this Note shall not operate as or be construed to be a
waiver of any other breach of such provision or of any breach of any other provision of this Note. The failure of the Company or
the Holder to insist upon strict adherence to any term of this Note on one or more occasions shall not be considered a waiver or
deprive that party of the right thereafter to insist upon strict adherence to that term or any other term of this Note. Any waiver
must be in writing.


 


g)            Severability.
If any provision of this Note is invalid, illegal or unenforceable, the balance of this Note shall remain in effect, and if
any provision is inapplicable to any person or circumstance, it shall nevertheless remain applicable to all other persons and
circumstances. If it shall be found that any interest or other amount deemed interest due hereunder violates applicable laws
governing usury, the applicable rate of interest due hereunder shall automatically be lowered to equal the maximum permitted
rate of interest. The Company covenants (to the extent that it may lawfully do so) that it shall not at any time insist upon,
plead, or in any manner whatsoever claim or take the benefit or advantage of, any stay, extension or usury law or other law
which would prohibit or forgive the Company from paying all or any portion of the principal of or interest on this Note as
contemplated herein, wherever enacted, now or at any time hereafter in force, or which may affect the covenants or the
performance of this indenture, and due Company (to the extent it may lawfully do so) hereby expressly waives all benefits or
advantage of any such law, and covenants that it will not, by resort to any such law, binder, delay or impeded the execution
of any power herein granted to the Holder, but will suffer and permit the execution of every such as though no such law has
been enacted.


 




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h)            Next Business
Day. Whenever any payment or other obligation hereunder shall be due on a day other than a Business Day, such payment
shall be made on the next succeeding Business Day.


 


i)              Headings.
The headings contained herein are for convenience only, do not constitute a part of this Note and shall not be deemed to limit
or affect any of the provisions hereof.


 


IN WITNESS WHEREOF,
the Company has caused this Note to be duly executed by a duly authorized officer as of the date first above indicated.


 


	 	PROTALEX, INC.
	 	 	 
	 	By:	 
	 	 	Kirk M. Warshaw, Chief Financial Officer


 




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