Exhibit
4.9


 


THIS NOTE AND THE SHARES
OF CAPITAL STOCK ISSUED UPON ANY CONVERSION HEREOF HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR
ANY APPLICABLE STATE SECURITIES LAWS AND MAY NOT BE SOLD OR OTHERWISE TRANSFERRED
BY ANY PERSON, INCLUDING A PLEDGEE, UNLESS (1) EITHER (A) A
REGISTRATION WITH RESPECT THERETO SHALL BE EFFECTIVE UNDER THE SECURITIES ACT,
OR (B) THE COMPANY SHALL HAVE RECEIVED AN OPINION OF COUNSEL SATISFACTORY
TO THE COMPANY THAT AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT IS
AVAILABLE, AND (2) THERE SHALL HAVE BEEN COMPLIANCE WITH ALL APPLICABLE
STATE SECURITIES OR “BLUE SKY” LAWS.


 


BG MEDICINE, INC.


 


FORM OF CONVERTIBLE
PROMISSORY NOTE


 




	
  US$ [               ]

  	
   

  	
  December     , 2007

  






 


BG Medicine, Inc. a
corporation duly formed under the laws of the State of Delaware, (the “Company”),
for value received, hereby promises to pay to [Name]
or registered assigns (the “Note Holder”) the principal sum of $[       ], together
with interest, in the manner provided herein. 
This Convertible Promissory Note (this “Note”) is one of a series
of notes (collectively, the “Notes”) issued pursuant to that certain
Securities Purchase Agreement dated December 27, 2007 between the Company
and the Purchasers (as defined therein) (the “Purchase Agreement”), and
is entitled to the benefits of the Purchase Agreement.  The terms of the Notes (including this Note)
are and will be identical except as to the name of the holder thereof, the
original principal amount thereof and the date of issuance thereof.  Except as to those terms otherwise defined in
this Note, all capitalized terms used in this Note shall have the respective
meanings ascribed to them in the Purchase Agreement.


 


1.     Payments.


 


(a)   Subject to Section 14 hereof, unless
earlier converted or repaid as provided in Section 3 herein, all amounts
outstanding and unpaid under this Note shall be due and payable on the earlier
of:  (a) DEMAND
by the Purchasers holding Notes with at least 75% of the aggregate principal
amounts then outstanding under all of the Notes, (b) the occurrence of an
Event of Default or (c) the consummation of a Liquidation Event (the
earliest to occur shall be the “Due Date”).


 


(b)   Subject to Section 14 hereof, and
notwithstanding anything to the contrary contained elsewhere herein (other than
in Section 14) or in any of the Purchase Documents, the Company may, at its option, at any time and from time to time,
prepay all or any part of the principal balance of this Note, without penalty
or premium; provided, however, that the Company shall make no payment
with respect to this Note, whether in 


 


 


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respect of
principal, interest or any other amount owing hereunder, (i) without the
prior written approval of the Purchasers holding Notes with at least 75% of the
aggregate principal amounts then outstanding under all of the Notes, and (ii) unless
at the same time the Company makes a similar payment with respect to each of
the Notes then outstanding in a pro rata amount based on the aggregate amounts
then owing hereunder and thereunder, except if any of the Note Holders waives
such pro rata payment requirement.


 


2.     Interest.


 


Notwithstanding the date
of issuance of this Note, Interest on the unpaid principal amount shall be
deemed to have accrued beginning on the Effective Date of the Purchase
Agreement at a rate equal to ten percent (10%) per annum, computed on the basis
of the actual number of days elapsed and a year of 365 days from the date of
this Note until the principal amount and all interest accrued thereon are paid
(or converted, as provided in Section 3 hereof).  Subject to Section 3, interest shall not
be due and payable until the Due Date.


 


3.     Conversion
and Registration Rights.


 


(a)   Automatic Conversion in Connection with a
Qualified Financing.  The unpaid
principal amount of this Note together with any interest accrued but unpaid
thereon, shall automatically be converted into shares of New Stock issued and
sold at the closing of a Qualified Financing that occurs on or prior to the Due
Date (it being understood that if such Qualified Financing consists of more
than one type of security, the holder of this Note shall be entitled to receive
all of such securities upon such conversion). 
Upon the conversion of the Note pursuant to this Section 3(a), the
holder of this Note shall be entitled to receive a number of shares of the
Company’s New Stock to be issued upon such conversion equal to the quotient
obtained by dividing (i) the unpaid principal amount of this Note plus
interest accrued but unpaid thereon, by (ii) the New Stock Price.  The issuance of the shares of New Stock upon
such conversion  shall be upon the terms and
subject to the conditions applicable to the Qualified Financing.  Upon such conversion, the Note Holder will
execute such agreements as may be entered into by purchasers of shares of New
Stock in the Qualified Financing generally, if any.  If the Qualified Financing is the Company’s
Initial Public Offering, the New Stock shall be shares of the Company’s Common
Stock and the New Stock Price shall be the initial public offering price in the
Initial Public Offering.


 


(b)   Optional Conversion.  At any time after the withdrawal of the
Registration Statement and prior to the closing of a Qualified Financing and in
lieu of repayment of the Note, the Purchasers holding Notes with at least 75%
of the aggregate principal amounts then outstanding under all of the Notes (the
“Requesting Holders”) may elect to convert all, but not less than all,
of the outstanding principal balance under the Notes into shares of the Company’s
Series A Preferred Stock (the “Optional Conversion”).  Upon conversion of the Note pursuant to this Section 3(b),
the holder of this Note shall be entitled to receive a number of shares of the
Company’s Series A Preferred Stock equal to the quotient obtained by
dividing (i) the unpaid principal amount of this Note plus interest
accrued but unpaid thereon, by (ii) $3.21, subject to equitable adjustment



 


 


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whenever there shall
occur a stock dividend, stock split, combination, reclassification or other
similar event.


 


(c)   Restricted Securities and Registration
Rights.  The provisions of Section 4.02
of the Securities Purchase Agreement are incorporated herein.  The holder of the securities issued upon
conversion of this Note shall be entitled to the registration rights provided
in the Third Amended and Restated Investor Rights Agreement, as amended, upon
becoming a party to such agreement (if not already a party).


 


4.     Mechanics
of Conversion.


 


(a)   No
fractional shares will be issued upon conversion of this Note.  In lieu of any fractional share to which the
Note Holder would otherwise be entitled, the Company will pay to the Note
Holder in cash any amount that would otherwise be converted into such
fractional share.


 


                (b)   In the event that this Note is converted into New Stock pursuant
to Section 3(a), the Note Holder shall surrender this Note, duly endorsed,
to the Company at the closing of the Qualified Financing and the Note shall
thereupon be canceled.  As soon as
practicable following surrender of this Note and at its expense, the Company
will issue and deliver to the Note Holder, a certificate or certificates
representing the number of shares of New Stock to which the Note Holder is
entitled upon such conversion, together with a check payable to the Note Holder
for any cash amounts payable pursuant to Section 4(a).


 


                (c) In the event that this
Note is converted into Series A Preferred Stock pursuant to Section 3(b),
the Requesting Holders shall notify the Company at least ten (10) calendar
days prior to the date that the Requesting Holders intend to effect the
Optional Conversion.  Prior to the
consummation of the Optional Conversion, if a sufficient number of shares of Series A
Preferred Stock is not authorized under the Company’s certificate of
incorporation, as then in effect, the Company shall take all corporate action
necessary to authorize the requisite number of shares of Series A
Preferred Stock for issuance upon conversion of the Note prior to the issuance
of such shares.  At the time of the
consummation of the Optional Conversion, the Note Holder shall surrender this
Note, duly endorsed, to the Company and this Note shall thereupon be
canceled.  As soon as practicable
following surrender of this Note and at its expense, the Company will issue and
deliver to the Note Holder, a certificate or certificates representing the
number of shares of Series A Preferred Stock to which the Note Holder is
entitled upon the Optional Conversion, together with a check payable to the
Note Holder for any cash amounts payable pursuant to Section 4(a).


 


5.     Liquidation
Event.


 


                In the event that, prior to the Due Date or
conversion of the Note in accordance with Section 3, a written proposal
from a third party is made with respect to a Liquidation Event, the Company
shall notify the Note Holder of such proposal promptly following receipt of
such proposal and the Note Holder shall be entitled to receive, upon 


 


 


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consummation
of such Liquidation Event, an amount equal to the sum of (i) two (2) times
the then outstanding principal amount under this Note and (ii) the then
current accrued but unpaid interest under this Note.


 


6.     Termination
of Rights.


 


Upon
conversion of this Note in accordance with Section 3, repayment of this Note in accordance
with Section 1 or repayment of this Note in connection with a Liquidation
Event in accordance with Section 5, all rights with respect to this Note
shall terminate, whether or not the Note has been surrendered for cancellation,
and the Company will be forever released from all of its obligations and
liabilities under this Note except its obligations pursuant to Sections 3, 4
and 5.


 


7.     Events
of Default.


 


             Subject to Section 14 hereof,
in the case an Event of Default shall occur, the entire unpaid principal of
this Note shall become due and payable in the manner and with the effect
provided in the Purchase Agreement and this Note.


 


8.     Transfer;
Successors and Assigns.


 


The Note Holder
may not sell, assign, pledge, dispose of or otherwise transfer this Note or any
interest herein without the prior written consent of the Company; provided,
however, a Note Holder that is partnership, corporation, trust, joint venture,
unincorporated organization or other entity may transfer this Note to an
Affiliate without the prior written consent of the Company.  Subject to the preceding sentence, this Note
may be transferred only upon surrender of the original Note for registration of
transfer, duly endorsed, or accompanied by a duly executed written instrument
of transfer in form satisfactory to the Company.  Thereupon, a new note for the same principal
amount and interest will be issued to, and registered in the name, of, the
transferee.  Interest and principal are
payable only to the registered holder of this Note.  The terms and conditions of this Note shall
inure to the benefit of and binding upon the respective successors and assigns
of the parties.  Any assignee of this
Note shall be bound by the terms and conditions of Section 14 hereof.


 


9.     Governing
Law.


 


This Note and all acts
and transactions pursuant hereto and the rights and obligations of the parties
hereto shall be governed, construed and interpreted in accordance with the laws
of the State of Delaware, without giving effect to principles of conflicts of
law and choice of law that would cause the laws of any other jurisdiction to
apply.


 


10.  Notices.


 


All notices required or
permitted hereunder shall be in writing and shall be deemed effectively given: (a) 
upon personal delivery to the party to be notified; (b) when 


 


 


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sent by confirmed
telecopy or facsimile if sent during normal business hours of the recipient, if
not, then on the next business day; (c) five days after having been sent
by registered or certified mail, return receipt requested, postage prepaid; or (d) the
next business day after deposit with a nationally recognized overnight courier,
specifying next day delivery, with written verification of receipt.  All communications shall be sent to (i) the
Company at the address as set forth on the signature page hereof and (ii) the
Note Holder at the address set forth on the signature page hereof or at
such other address as the Company or the Note Holder may designate by ten days’
advance written notice to the other party hereto.


 


11.  Amendments
and Waivers.


 


                This Note may be amended or
modified, and any provision hereof may be waived with the written consent of
the Company and by the Purchasers holding Notes with at least 75% of the
aggregate principal amounts then outstanding under all of the Notes; provided, that this Note may not be amended or modified and
no provision hereof or thereof may be waived if such amendment, modification or
waiver would adversely and prejudicially affect the rights of the Note Holder
of this Note vis-à-vis all other holders of
the Notes without the consent of the Note Holder hereof.  No waivers of any term, condition or
provision of this Note, in any one or more instances, shall be deemed to be, or
construed as, a further or continuing waiver of any such term, condition or
provision.


 


12.          Headings.


 


The headings in this Note are for purposes of
reference only, and shall not limit or otherwise affect the meaning hereof.


 


13.  Rights
Reserved.


 


No provisions of this
Note and no right or option granted or conferred herein shall in any way limit,
affect or abridge the exercise by the Company of any of its corporate rights or
powers, including without limitation, its corporate right and power to issue
securities, recapitalize, amend its Certificate of Incorporation, reorganize,
consolidate or merge with or into another corporation, or transfer or encumber
all or any part of its property or assets.


 


14.           Subordination to Senior
Debt.


 


Note Holder agrees by accepting this Note that the payment of all
principal, interest and other sums at any time now or hereafter owing from the
Company to Note Holder under or in connection with this Note (the “Subordinated
Debt”) shall be junior and subordinate to the prior indefeasible payment in
full of, and performance of all obligations in respect of, all Senior Debt (as
hereinafter defined) in accordance with the terms and conditions of this Section 14.  Until the date that is 91 days after the
Senior Debt has been paid in full and the holders of the Senior Debt have no
obligation to make loans or otherwise extend credit to the Company, Note Holder
by accepting this Note agrees that it will not (x) take any action or
initiate any proceedings, judicial or 


 


 


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otherwise, to enforce Note Holder’s rights or remedies with respect to
any indebtedness under this Note (other than the conversion of the indebtedness
under this Note into New Stock or Series A Preferred Stock pursuant to Section 3
hereof, so long as no
cash is paid by the Company to the Note Holder in connection with such
conversion other than with respect to fractional shares pursuant to Section 4(a) hereof) or (y) demand
or receive any payment of Subordinated Debt. 
Note Holder agrees that it shall promptly deliver to the holders of the
Senior Debt in the form received for application to the Senior Debt any
payment, distribution, security or proceeds received by Note Holder with
respect to Subordinated Debt that is made in contravention of this Section 14.  In the event of any insolvency, bankruptcy or
receivership case or proceeding, or any dissolution, winding up, liquidation,
reorganization or other similar proceeding, relative to the Company, its
property or its operations (whether voluntary or involuntary and whether in
bankruptcy, insolvency or receivership proceedings or otherwise) or upon an assignment
for the benefit of creditors, then all Senior Debt shall first be paid in full
in cash or cash equivalents, before Note Holder shall be entitled to receive or
retain any payment or distribution of assets with respect to this Note or the
Subordinated Debt.  By accepting this Note, Note Holder
acknowledges and agrees that the holders of Senior Debt are intended to be
third party beneficiaries of the provisions of this Section 14 and are
entitled to rely on these provisions and to enforce these provisions as if they
were a direct party to this Note.


 


For purposes of this Note, the term “Senior Debt” means all of
the indebtedness, liabilities, and other obligations the Company owes to (1) General
Electric Capital Corporation (“GE Capital”) under (a) that certain Master
Security Agreement, dated as of October 3, 2001 (as amended, restated,
modified or replaced from time to time, the “GE Capital Security Agreement”), by and between the Company and GE
Capital, and (b) any and all “Notes” (as such term is defined in the GE
Capital Security Agreement), and (2) Silicon Valley Bank, under that
certain Loan and Security Agreement dated as of November 9, 2007 (as
amended, restated, modified or replaced from time to time, the “Loan Agreement”),
by and between Company and Silicon Valley Bank.


 


The provisions of this Section 14 shall
not prohibit the Company or the Note Holder from converting any Subordinated Debt evidenced by this
Note into shares of New Stock or Series A Preferred Stock pursuant to Section 3
hereof, so long as no cash is paid by the Company to the Note Holder in
connection with such conversion other than with respect to fractional shares
pursuant to Section 4(a) hereof.


 


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                IN WITNESS WHEREOF, the Company
has caused this Note to be duly executed and delivered.


 


	
  BG MEDICINE, INC.  

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  By:

  	
   

  	
   

  
	
  Name: Pieter Muntendam, M.D.

  	
   

  
	
  Title: President

  	
   

  
	
  Address: 

  	
  610 N Lincoln Street

  	
   

  
	
   

  	
  Waltham, MA 02451

  	
   

  
				



 


 


 


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