GIVEN, BY FIRST CLASS
MAIL, REGISTERED, RETURN RECEIPT REQUESTED, POSTAGE PREPAID AND ADDRESSED AS
FOLLOWS:
To Holder:
Procept, Inc.
10 East 53rd Street
33rd Floor
New York, New York 10017
Attention: Salvatore A. Bucci, President and Chief Executive Officer
Fax: (212) 755-5463
To Borrower:
Keryx Biopharmaceuticals, Inc.
750 Lexington Avenue
26th Floor
New York, NY 10022
Attention: Michael Weiss, Chairman and Chief Execuive Officer
Fax: (212) 531-5961
3.3.
LOST, STOLEN OR MUTILATED NOTE.
UPON RECEIPT
BY BORROWER OF EVIDENCE SATISFACTORY TO IT OF THE LOSS, THEFT, DESTRUCTION OR
MUTILATION OF THIS NOTE OR ANY NOTE EXCHANGED FOR IT, AND (IN THE CASE OF LOSS,
THEFT OR DESTRUCTION) OF UNSECURED INDEMNITY SATISFACTORY TO IT, AND UPON
REIMBURSEMENT TO BORROWER OF ALL REASONABLE EXPENSES INCIDENTAL THERETO, AND
UPON SURRENDER AND CANCELLATION OF SUCH NOTE, IF MUTILATED, BORROWER WILL MAKE
AND DELIVER IN LIEU OF SUCH NOTE A NEW NOTE OF LIKE TENOR AND UNPAID PRINCIPAL
AMOUNT AND DATED AS OF THE ORIGINAL DATE OF THE NOTE.
3
3.4.
SEVERABILITY; BINDING EFFECT.
ANY PROVISION
OF THIS NOTE WHICH IS INVALID OR UNENFORCEABLE IN ANY JURISDICTION SHALL, AS TO
SUCH JURISDICTION, BE INEFFECTIVE TO THE EXTENT OF SUCH INVALIDITY OR
UNENFORCEABILITY WITHOUT RENDERING INVALID OR UNENFORCEABLE THE REMAINING TERMS
AND PROVISIONS OF THIS NOTE OR AFFECTING THE VALIDITY OR UNENFORCEABILITY OF ANY
OF THE TERMS AND PROVISIONS OF THIS NOTE IN ANY OTHER JURISDICTION.
THIS NOTE
SHALL BE BINDING UPON AND INURE TO THE BENEFIT OF THE PARTIES HERETO AND THEIR
SUCCESSORS AND PERMITTED ASSIGNS.
NEITHER THIS NOTE NOR ANY RIGHTS OR
OBLIGATIONS HEREUNDER MAY BE ASSIGNED BY BORROWER WITHOUT HOLDER'S PRIOR WRITTEN
CONSENT.
3.5.
GOVERNING LAW; FORUM.
THIS NOTE AND ANY
DISPUTE, DISAGREEMENT, OR ISSUE OF CONSTRUCTION OR INTERPRETATION ARISING
HEREUNDER WHETHER RELATING TO ITS EXECUTION, ITS VALIDITY, THE OBLIGATIONS
PROVIDED THEREIN OR PERFORMANCE SHALL BE GOVERNED AND INTERPRETED ACCORDING TO
THE INTERNAL LAWS OF THE STATE OF NEW YORK, WITHOUT GIVING EFFECT TO THE
PRINCIPLES OF CONFLICTS OF LAWS THEREOF.
EACH OF THE PARTIES HERETO HEREBY
IRREVOCABLY AND UNCONDITIONALLY SUBMITS TO THE EXCLUSIVE JURISDICTION OF ANY
COURT OF THE STATE OF NEW YORK OR ANY FEDERAL COURT SITTING IN THE STATE OF NEW
YORK FOR PURPOSES OF ANY SUIT, ACTION OR OTHER PROCEEDING ARISING OUT OF THIS
NOTE (AND AGREES NOT TO COMMENCE ANY ACTION, SUIT OR PROCEEDINGS RELATING HERETO
EXCEPT IN SUCH COURTS).
EACH OF THE PARTIES HERETO AGREES THAT SERVICE OF ANY
PROCESS, SUMMONS, NOTICE OR DOCUMENT BY U.S. REGISTERED MAIL AT ITS ADDRESS SET
FORTH HEREIN SHALL BE EFFECTIVE SERVICE OF PROCESS FOR ANY ACTION, SUIT OR
PROCEEDING BROUGHT AGAINST IT IN ANY SUCH COURT.
EACH OF THE PARTIES HERETO
HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY OBJECTION TO THE LAYING OF
VENUE OF ANY ACTION, SUIT OR PROCEEDING ARISING OUT OF THIS NOTE, WHICH IS
BROUGHT BY OR AGAINST IT, IN THE COURTS OF THE STATE OF NEW YORK OR ANY FEDERAL
COURT SITTING IN THE STATE OF NEW YORK AND HEREBY FURTHER IRREVOCABLY AND
UNCONDITIONALLY WAIVES AND