Immucell Corp 8-K, filed Jul 6, 2021
Immucell Corp (ICCC)
8-K
2021-07-06
For: 2021-06-30
View Original
Added on
April 09, 2026
About this 8-K
Immucell Corp filed this 8-K on July 6, 2021, reporting on events of June 30, 2021.
Items reported
- Item 1.01: Entered into a material agreement
- Item 2.03: New debt or off-balance-sheet obligation
- Item 9.01: Financial statements and exhibits
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant
to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date
of Report: June 30, 2021
(Date of earliest event reported)
ImmuCell
Corporation
(Exact name of registrant as specified in its charter)
| DE | 001-12934 | 01-0382980 | ||
| (State or other
jurisdiction of incorporation) |
(Commission
File Number) |
(IRS Employer
Identification Number) |
56
Evergreen Drive |
04103 | |
| (Address of principal executive offices) | (Zip Code) |
207-878-2770
(Registrant’s telephone number, including area code)
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligations of the registrant under any of the following provisions:
| ☐ | Written communications pursuant to Rule 425 under the Securities Act |
| ☐ | Soliciting material pursuant to Rule 14a-12 under the Exchange Act |
| ☐ | Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act |
| ☐ | Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act |
Securities registered pursuant to Section 12(b) of the Exchange Act: NONE
Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act or Rule 12b-2 of the Exchange Act:
Emerging growth company ☐
Item 1.01 – Entry into a Material Definitive Agreement
Item 2.03 – Creation of a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement of a Registrant
On June 30, 2021, ImmuCell Corporation (the “Company”) executed definitive agreements covering a loan from the Maine Technology Institute (MTI) in the aggregate principal amount of $400,000. No principal payments are due until September 2023, and the note bears no interest until July 2023, at which time principal and interest payments are due quarterly at a fixed rate of 5% per annum based on a 5.5-year amortization schedule until December 2028.
The proceeds from the loan are to be used to support, in part, the Company’s investments to increase its production capacity for the First Defense® product line, to complete the development of Re-Tain™ and to bring the formulation and aseptic filling services for Re-Tain™ in-house.
The credit facility is unsecured and subordinated to the Company’s indebtedness to Gorham Savings Bank, which senior indebtedness is secured by mortgages and security interests with respect to substantially all of the Company’s assets. The Company’s failure to make timely payments of principal and interest, or otherwise to comply with the terms of its agreements with MTI, would entitle MTI to accelerate the maturity of such debt and demand repayment in full.
The Note Purchase Agreement and the Subordinated Promissory Note executed in connection with this credit facility are attached as Exhibit 99.1 and Exhibit 99.2, respectively, to this Current Report on Form 8-K.
Item 9.01 – Financial Statements and Exhibits.
(d) Exhibits.
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SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
| Dated: July 6, 2021 | IMMUCELL CORPORATION | |
| By: | /s/ Michael F Brigham | |
| Michael F. Brigham | ||
| President, Chief Executive Officer and | ||
| Principal Financial Officer | ||
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Exhibit Index
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EXHIBIT 99.1
NOTE PURCHASE AGREEMENT
This Note Purchase Agreement, (“Agreement”), is made as of June 30, 2021, by and between the Maine Technology Institute, a non-profit corporation organized under the laws of the State of Maine (“Holder”), and ImmuCell Corporation, a Corporation organized under the laws of the State of Delaware, Federal tax identification number 01-0382980 (“Company”) (collectively referred to as the “Parties”).
| 1.0 | INTRODUCTION |
| 1.1 | MTI. Holder was established by the Maine Legislature to stimulate and support research and development activity leading to the commercialization of new products and services to enhance the competitive position of Maine’s technology- intensive industrial sectors, and thereby promote economic development and job creation. Holder’s goal is to contribute to the long-term development of a statewide research, development, and product deployment infrastructure, thereby enhancing the competitive position of Maine’s technology intensive industries, while supporting clusters of industrial activity and creating jobs for Maine people. | |
| 1.2 | Investment Program. To achieve these goals, Holder makes loans to and equity investments in qualifying companies under the Maine Technology Institute Investment Program. | |
| 1.3 | Project Application. The Company has submitted a loan application (“Application”) to Holder to cost-share a project that will stimulate the commercialization of a new product or service, stimulate the formation and growth of technology businesses, increase Maine’s capacity for technology-based companies and services, address gaps in the technology-related business infrastructure, or create and support an integrated targeted-industry cluster enhancing the competitive position of those industries in Maine (“Project”). | |
| 1.4 | Agreement Purpose. The Parties, in reliance upon the representations, warranties and covenants contained in the Application and in this Agreement, enter into this Agreement in order to promote these mutual interests. |
| 2.0 | CONSIDERATION |
| 2.1 | Consideration. For valuable and sufficient consideration received and to be received, including, but not limited to, performance of the Parties’ respective obligations under this Agreement, the Parties have entered into this Agreement. |
| 3.0 | AGREEMENT TERM |
| 3.1 | Effective and Termination Dates. The term of this Agreement shall commence on the Effective Date, which is the same as the Effective Date of the Note and shall terminate on the earlier of the following events (“Termination Date”): | |
| 3.1.1 | Full repayment of all outstanding Note balances under this Agreement by the Company; or |
| 3.1.2 | A declaration by Holder that all outstanding Obligations payable by Company must be repaid immediately following an Event of Default under Appendix B Note Section 4(ii), “Rights of Holder Upon Default,” and following the Holder’s delivery of a final default letter to the Company. |
| 4.0 | REPRESENTATIONS AND WARRANTIES OF THE COMPANY |
The Company makes the following representations and warranties to Holder:
| 4.1 | Continuing Representations. All information in the Company’s Application, including but not limited to the Scope of Work, Deliverables, Disbursement Schedule, and Project Budget set forth in Appendix A, remains true and correct, and there has been no material adverse change in the business, assets, operations, or financial conditions of the Company, or in the matters described in the Application or supplemental materials pertaining to the Project since submittal of the final Application. | |
| 4.2 | Agreement. Neither this Agreement, or any other documents, certificates or agreements required by Holder to be executed in connection with this Agreement for funding contains any untrue statement of a material fact or any omission of a material fact. | |
| 4.3 | Authority. The Company has all requisite power and authority to execute and deliver this Agreement and to consummate the transactions contemplated thereby. | |
| 4.4 | Organization. The Company is duly organized, validly existing, registered with the Maine Secretary of State and in good standing to do business in Maine, and has all requisite power and authority to own, lease, and operate its property and conduct its business. | |
| 4.5 | Compliance with Other Instruments, None Burdensome. The execution, delivery and performance of and compliance with this Agreement and the Note will not result in nor constitute any breach, default or violation of (i) any material agreement, contract, lease, license, instrument or commitment (oral or written) to which the Company is a party or (ii) any law, rule, regulation, statute or order applicable to the Company, any of its subsidiaries or their respective properties, nor result in the creation of any mortgage, pledge, lien, encumbrance or charge upon any of the properties or assets of the Company or its subsidiaries. No person has any right to participate in the sale by the Company of the Note (other than rights that have been fully satisfied or waived). | |
| 4.6 | Required Consents. No consent, approval, order or authorization of, or designation, registration, declaration or filing with, any federal, state, local or provincial or other governmental authority on the part of the Company is required in connection with the valid execution and delivery of this Agreement and the Note, other than, if required, filings or qualifications under the Maine Uniform Securities Act, as amended (the “Maine Uniform Securities Act”), or other applicable blue sky laws, which filings or qualifications, if required, will be timely filed or obtained by the Company. |
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Offering. The Company will issue the Note in compliance with all applicable federal and state securities laws, relying in part upon the representations and warranties of the Holder in Section 6 below.
| 4.7 | Conflicts of Interest. The Company has disclosed any relationship, direct or indirect, between the Company, its Officers, Directors, members or employees, and Holder. The Company is in compliance with the conflict of interest provisions of 5 M.R.S.A. Chapter 407, Section 15307. |
| 5.0 | COMPANY’S ADDITIONAL COVENANTS |
The Company agrees to abide by the following additional covenants, effective as of the Effective Date and surviving until the Termination Date or any specified later date:
| 5.1 | Place of Business. The Company will maintain a regular place of business in the State of Maine throughout the term of this Agreement. A regular place of business is defined for purposes of this Agreement as a facility where the Company carries on its business in a regular and systematic manner, that is continuously maintained, occupied, and used by employees of the Company, and that is managed by a senior employee who is authorized to make binding decisions on behalf of the Company on all matters pertaining to the Agreement. |
| 5.2 | Matching Funds. The Company will contribute all payments and services designated as Matching Funds on the schedule and from the funding sources set forth in the Company’s Application as incorporated in Appendix A, or as revised with Holder’s written approval. |
| 5.3 | Project Work. The Company shall undertake all work described in Appendix A Scope of Work and Deliverables in good faith and with due diligence and shall expend loan funds disbursed under this Agreement only for the purposes detailed in Appendix A or by subsequent written approval of Holder. The Company shall notify Holder immediately of any event which reduces or is likely to reduce the Company’s ability to undertake all work described in Appendix A. |
| 5.4 | Intellectual Property. The Company has set forth in Appendix D a description of all patents, copyrights, trademarks, trade secrets and other intellectual property rights owned or controlled by Recipient or any third party (collectively, “Background IP”) that may be material to commercialization of the technology to be developed or commercialized in the Project funded by this Agreement (“Technology”), and Recipient owns or has secured all necessary rights in and to the Background IP to commercialize the Technology. Recipient will provide to MTI, at MTI’s request, true and accurate copies of all license agreements, assignments and other agreements pertaining to such Background IP. The Company will promptly report any additional patents, copyrights, trademarks, trade secrets or other intellectual property rights developed by or acquired by the Company during the Agreement Term that may be material to commercialization of the Technology (“Project Technology”) and the Parties will amend Appendix D to include that Technology. Recipient shall not sell, license, or otherwise transfer its rights in and to the Background or Project IP necessary to commercialize the Technology without compliance with Section 5.10 below. |
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| 5.5 | Partnership, Association or Joint Venture. If the Company or its successor-in- interest is a partnership, association or joint venture, by the Company’s execution of this Agreement each person comprising such partnership, association or joint venture shall be jointly and severally bound for all the obligations of such party under the Agreement. |
| 5.6 | Project Records. The Company shall create and maintain records necessary to document the financial and other information to be reported to Holder pursuant to this Agreement. The Company shall provide such records, and any additional information reasonably requested by Holder, until the Termination Date of this Agreement, and for an additional five-year period following the Termination Date. This covenant shall survive the Termination Date of the Agreement. |
| 5.7 | Project Reports. The Company shall submit all reports to Holder required by Appendix C in a timely manner, including all reports due during the five-year period following the Termination Date. This covenant shall survive the Termination Date of the Agreement. |
| 5.8 | Survey. The Company shall complete an annual Impact Metrics Reporting Survey pertaining to the economic impacts of the Agreement required by Appendix C until the Termination Date of this Agreement, and for an additional five-year period following the Termination Date. The annual Survey will require information pertaining to project outcomes and impacts and may be amended from time to time. The Company’s completion of the annual Survey is an important obligation under this Agreement, vital to Holder’s ability to assess its program effectiveness, and the Company’s obligation to complete the Survey shall survive for an additional five-year period following the Termination Date. This covenant shall survive the Termination Date of the Agreement. |
| 5.9 | Material Change Notification. The Company shall notify Holder promptly of any material change in the Company’s legal status, financial status, or compliance status with federal and state laws, or of any material change in the status of the Project that would have a significant adverse effect on the Company’s ability to implement the Project as described in Appendix A. |
| 5.10 | Notice of Sale, License, or Transfer. The Company shall notify Holder at least 60 days prior to any proposed sale, license, or other transfer by the Company that would result in the Company’s non-compliance with the representations, warranties, or covenants in Section 4 or 5 of this Agreement. The Company’s notice shall include a proposal for repayment of the Appendix B Note and all related Company Obligations under this Agreement prior to such a sale, license or transfer event. |
| 5.11 | Observation Rights. In Lieu of typical observation rights, until the outstanding Company Obligations due under the Appendix B Note and under this Agreement are paid in full, the Holder shall receive copies of the Company board of directors meeting minutes that are distributed to members of the board of directors or the board of advisors, or of written consents of actions of the board of directors; provided, however, that the Company shall have the right to exclude the from the Holder portions of any such meetings in which attorney-client privileged matters, or matters as to which the Holder or its affiliates have a conflict of interest, are presented or discussed, and to remove or redact from materials provided to the Holder information that relates to any such matters. All information obtained by the Maine Technology Institute, or its agents, shall be subject to the confidentiality provisions of 5 MRS section 15302-A and shall be considered confidential information by the Maine Technology Institute and any subsequent assignee upon a request by the Company. |
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| 5.12 | Information Rights. The books and records of the Company pertaining to this Agreement shall be maintained at the principal Maine office of the Company at all times and shall be open to the reasonable inspection and examination of the Holder, or its duly authorized representatives, during reasonable business hours for a period of five years following repayment of this Note. This covenant shall survive the Termination Date of the Agreement. |
| 6.0 | HOLDER REPRESENTATIONS AND WARRANTIES |
The Holder represents and warrants to the Company as of the time of issuance of the Note as follows:
| 6.1 | Investment Intent; Authority. The Holder is acquiring the Note for investment for the Holder’s own account, and not as nominee or agent for investment, and not with a view to, or for resale in connection with, any distribution or public offering thereof within the meaning of the Securities Act of 1933, as amended (the “Securities Act”) or the Maine Uniform Securities Act. The Holder has the full right, power, authority and capacity to enter into and perform this Agreement and the Agreement will constitute a valid and binding obligation upon Holder, except as the same may be limited by laws of general application affecting the enforcement of creditors’ rights. | |
| 6.2 | Note Not Registered. The Holder understands and acknowledges that the offering of the Note will not be registered under the Securities Act or qualified under the Maine Uniform Securities Act on the grounds that the offering and sale of the Note contemplated by this Agreement are exempt from registration under the Securities Act and exempt from qualification under the Maine Uniform Securities Act. The Holder acknowledges and understands that resale of a Note may be restricted indefinitely unless the Note is subsequently registered under the Securities Act and qualified under the Maine Uniform Securities Act or an exemption from such registration and such qualification is available. | |
| 6.3 | No Transfer. The Holder covenants that in no event will it dispose of any of the Note other than: (i) in conjunction with an effective registration statement under the Securities Act or pursuant to an exemption therefrom; (ii) in compliance with Rule 144 promulgated under the Securities Act and the securities laws of the State of Maine; or (iii) by transfer or assignment to a Holder affiliate or successor-in- interest, or to a State of Maine agency (including, but not limited to, the Finance Authority of Maine). |
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| 6.4 | Accredited Investor. The Holder is an accredited investor as that term is defined in Regulation D promulgated by the Securities and Exchange Commission under the Securities Act. |
| 7.0 | NOTE ISSUANCE |
| 7.1 | Issuance of the Note. At a closing (“Closing”) to be held simultaneously with the execution of this Agreement, the Company will issue, sell, and deliver to the Holder, and the Holder will purchase from the Company, a promissory note in the aggregate principal amount of $400,000.00 (the “Note”). The purchase price for the Note shall be the principal amount thereof, payable in multiple advances as set forth in Appendix A hereto. Capitalized terms used in this Agreement but not otherwise defined herein shall have the meanings set forth in the Note. |
| 7.2 | Terms of the Note. The terms and conditions of the Note are set forth in the form of Note attached as Appendix B hereto. | |
| 7.3 | Delivery. The Company will deliver the Note to the Holder at the Closing, against receipt by Company of the purchase price for the Note on the Disbursement Schedule set forth in Appendix A pursuant to terms and conditions of this Agreement. | |
| 7.4 | Legal Fees. The Holder may require the Company to pay for any of the Holder’s legal fees associated with the negotiation and preparation of any Holder-requested revision to this Agreement or the related Note subsequent to closing. | |
| 7.5 | Use of Note Proceeds. The proceeds of the Note shall be used by the Company for the purposes set forth in the Company’s Appendix A Scope of Work, Deliverables and Project Budget. The Company shall not use the proceeds of the Note for any purpose not described in Appendix A without the prior written approval of the Holder. |
| 8.0 | MISCELLANEOUS |
| 8.1 | Governing Law. This Agreement and all actions arising out of or in connection with this Agreement shall be governed by and construed in accordance with the laws of the State of Maine, without regard to the conflicts of law provisions of the State of Maine or of any other state. | |
| 8.2 | Entire Agreement. The Parties acknowledge that this Agreement together with the Note sets forth the entire agreement of the Parties as to the subject matter hereof and shall not be modified except by the execution of a written instrument signed by the Parties. | |
| 8.3 | Validity. The provisions of this Agreement are severable, and in the event that any provision of this Agreement shall be determined to be invalid or unenforceable under any controlling and applicable body of law, such invalidity or unenforceability shall not in any way affect the validity of the enforceability of the remaining provisions hereof, and if performance of the Agreement would transcend the limit of validity prescribed by any applicable law, the obligation to be fulfilled shall be reduced to the limit of such validity. |
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| 8.4 | Assignability. Holder may assign this Agreement or transfer the related Appendix B Note to any affiliate or successor-in-interest, or any agency of the State of Maine (including, but not limited to, the Finance Authority of Maine), subject to the applicable federal and state securities laws. The Company may not assign this Agreement or transfer the related Appendix B Note, nor any of the rights, interests or obligations hereunder, in whole or in part without the Holder’s prior written consent. | |
| 8.5 | Notices. All written notices anticipated by this Agreement shall be deemed to be successfully delivered if mailed to the signatory for the party by United States Postal Service registered or certified mail, or by overnight carrier at the address listed under the signatures below. The Company has the sole obligation to provide Holder with updated address information. | |
| 8.6 | Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be an original, but all of which together shall be deemed to constitute one instrument. |
[The Remainder of this Page is Intentionally Left Blank]
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IN WITNESS WHEREOF, the Parties have caused this Agreement to be duly executed and delivered by their proper and duly authorized representatives as an instrument under seal for purposes of 14 MRS §751 and 1 MRS §72(26-B) as of the date and year first written above.
| COMPANY: | ATTESTING WITNESS | ||
| ImmuCell Corporation | |||
| 56 Evergreen Drive | |||
| Portland, Maine 04103 | |||
| By: | /s/ Michael F. Brigham | /s/ Elizabeth S. Toothaker | |
| Title: | President & CEO | ||
| Date: | June 30, 2021 | Date: June 30, 2021 | |
HOLDER: |
ATTESTING WITNESS | ||
MAINE TECHNOLOGY INSTITUTE |
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8 Venture Avenue |
|||
Brunswick, Maine 04011 |
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| By: | /s/ Brian Whitney | /s/ Barb Ford | |
| Name: | Brian Whitney | ||
| Title: | President | ||
| Date: | June 30, 2021 | Date: June 30, 2021 | |
EXHIBIT 99.2
SUBORDINATED PROMISSORY NOTE
THIS NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED. IT MAY NOT BE SOLD OR OFFERED FOR SALE IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT AS TO THE SECURITIES UNDER SAID ACT OR AN OPINION OF COUNSEL SATISFACTORY TO THE CORPORATION THAT SUCH REGISTRATION IS NOT REQUIRED.
ImmuCell Corporation
SUBORDINATED PROMISSORY NOTE
| NOTE AMOUNT: $400,000.00 | EFFECTIVE DATE: June 30, 2021 |
FOR VALUE RECEIVED, ImmuCell Corporation, a Corporation (“Company”), promises to pay to the Maine Technology Institute (the “Holder”), or its registered assigns, the principal sum of Four Hundred Thousand Dollars ($400,000.00), or such lesser amount as shall then equal the outstanding principal amount hereof, together with simple interest on the unpaid principal balance at a rate equal to five percent (5.0%) per annum, computed on the basis of the actual number of days elapsed and a year of 365 days, commencing on the repayment date established in Schedule 1 to this Note and continuing on the repayment schedule established therein. In the event of any default under this Note, the Holder may, in its discretion, determine that all amounts owed to the Holder shall bear interest at a rate equal to the interest rate otherwise applicable to this Note identified above plus four percent (4%) per annum. All unpaid principal, together with the balance of unpaid and accrued interest and other amounts payable hereunder, shall be due and payable on demand in one payment at any time after the earlier of (i) the “Maturity Date” or (ii) upon or after the occurrence of an Event of Default (as defined below). This Note is issued pursuant to the Note Purchase Agreement of even date herewith (as amended, modified or supplemented, the “Note Purchase Agreement”) between Company and the Holder named therein.
The following is a statement of the rights of the Holder and the conditions to which this Note is subject, and to which the Holder hereof, by the acceptance of this Note, agrees:
| 1. | Definitions. As used in this Note, the following capitalized terms have the following meanings: |
| 1.1 | “Maturity Date” is December 31, 2028. |
| 1.2 | “Obligations” means all principal, accrued interest, and other reimbursement of costs and expenses due under this Note or the Note Purchase Agreement. |
| 1.3 | “Senior Indebtedness” means, unless expressly subordinated to or made on a parity with the amounts due under this Note, the principal of (and premium, if any), unpaid interest on and amounts reimbursed, fees, expenses, costs of enforcement and other amounts due in connection with, (i) indebtedness of Company, or with respect to which Company is a guarantor, to banks, commercial finance lenders, insurance companies, leasing or equipment financing institutions or other lending institutions regularly engaged in the business of lending money, which is for money borrowed, or purchase or leasing of equipment in the case of lease or other equipment financing, by Company, whether or not secured, and (ii) any debentures, note or other evidence of indebtedness issued in exchange for such Senior Indebtedness, or any indebtedness arising from the satisfaction of such Senior Indebtedness by a guarantor. |
| 1.4 | “Transaction Documents” means this Note, any Subsequent Note and the Note Purchase Agreement. |
| 2 | Advances. Upon satisfaction of the conditions set forth in the Transaction Documents, the Company may obtain advances on this Note on the schedule set forth in Appendix A to the Note Purchase Agreement until the Project Completion Date set forth in such Appendix A, after which date no further advances will be made under this Note except in the sole discretion of the Holder. At the time of each advance requested by the Company under this Note, (i) the Company shall have complied with all of the terms, conditions, and requirements of the Transaction Documents and the Company shall have completed all work required to satisfy the applicable Scope of Work and Deliverables described in Appendix A to the Note Purchase Agreement, and (ii) no default or event of default (even if any applicable cure period has not expired) shall be outstanding under any of the Transaction Documents and any other obligations of the Company or of any Guarantor to the Holder, regardless of the circumstances of prior advances by the Holder. |
| 3 | Events of Default. The occurrence of any of the following shall constitute an “Event of Default” under this Note and the other Transaction Documents: |
| 3.1 | Failure to Pay. Any Company failure to pay (i) when due any principal payment on the due date hereunder, (ii) any interest or other payment required under the terms of this Note or any other Transaction Document on the date due; or (iii) when due any payment obligation under any other grant or loan agreement between the Company and Holder; or |
| 3.2 | Breaches of Other Covenants. Any Company failure to observe or perform any other covenant, obligation, condition or agreement contained in this Note or the other Transaction Documents, other than those specified in Section 3.1, and after the Company’s receipt of written notice by the Holder, such failure continues for ten (10) business days, or if such Company failure is not curable within such ten (10) business day period, the Company fails to commence a cure in a manner reasonably satisfactory to Holder within twenty (20) business days after the Company’s receipt of the written notice by the Holder. Such breaches of other Transaction Document covenants include, but are not limited to: |
| 3.2.1 | Relocation of Company Operations. The Company, without Holder’s prior consent, fails to (i) maintain a place of business in the State of Maine as defined in the Note Purchase Agreement Section 5.1; or |
| 3.2.2 | Transfer of Company Project Technology. The Company, without Holder’s prior consent, (i) sells, licenses, transfers or otherwise authorizes a third party to carry out the business and manufacturing operations, supporting product development, or process improvement activities resulting from the Technology funded by the proceeds of this Note, or (ii) sells, licenses, transfers or otherwise authorizes a third party to use the Company’s intellectual property rights in and to the Background or Project IP listed in Note Purchase Agreement Appendix D, or fails to maintain the Company’s rights to use the Appendix D intellectual property rights; or |
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| 3.3 | Breaches of Other Company-Holder Agreements. Any Company failure to observe or perform any covenant, obligation, condition or agreement contained in any other grant or loan agreement between the Company and Holder, and Holder has issued a final default letter to the Company based on such failure; or |
| 3.4 | Voluntary Bankruptcy or Insolvency Proceedings. Any Company action to (i) apply for or consent to the appointment of a receiver, trustee, or custodian of itself or of all or a substantial part of its property, (ii) make a general assignment for the benefit of its or any of its creditors, (iii) be dissolved or liquidated in full or in part, (iv) commence a voluntary case or other proceeding seeking liquidation, reorganization or other relief with respect to itself or its debts under any bankruptcy, insolvency or other similar law now or hereafter in effect or consent to any such relief or to the appointment of or taking possession of its property by any official in an involuntary case or other proceeding commenced against it, or (v) take any action for the purpose of effecting any of the foregoing; or |
| 3.5 | Involuntary Bankruptcy or Insolvency Proceedings. Proceedings for the appointment of a receiver, trustee, liquidator or custodian of Company or of all or a substantial part of the property thereof, or an involuntary case or other proceedings seeking liquidation, reorganization or other relief with respect to Company or the debts thereof under any bankruptcy, insolvency or other similar law or hereafter in effect shall be commenced and an order for relief entered or such proceeding shall not be dismissed or discharged within thirty (30) days of commencement; or |
| 3.6 | Failure to Pay Indebtedness. Other than the failure to pay or breaches of the Company’s other agreements with Holder described in Sections 3.1 through 3.3 above, any Company failure to pay at final stated maturity (giving effect to any applicable grace periods and any extensions thereof) any indebtedness for money borrowed, or any declared default of the Company under any such indebtedness that gives the holder thereof the right to accelerate such indebtedness (and any such acceleration is not rescinded, annulled or otherwise cured within fourteen (14) days after receipt by the Company of notice of such acceleration), except to the extent such failure to pay or acceleration is the subject of a bona fide dispute that the Company is contesting in good faith and for which funds sufficient to pay such indebtedness have been set aside and reserved for payment by the Company; or |
| 3.7 | Material Change in the Company’s Business. There occurs a material change in the business, as presently conducted or proposed to be conducted, of the Company, as determined in good faith by the Holder, including, but not limited to a material change in the financial condition of the Company; or |
| 3.8 | Cessation of Company Operations. The Company’s board of directors votes to cease substantially all the Company’s operations or wind up the Company’s affairs; or |
| 3.9 | Use of Proceeds. The use of Note proceeds by the Company for any purpose not described in the Company’s Scope of Work or Deliverables set forth in the Note Purchase Agreement Appendix A, without the prior written approval of the Holder. |
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| 4. | Rights of Holder Upon Default. Upon the occurrence or existence of any Event of Default (other than an Event of Default referred to in Paragraph 3.4, “Voluntary Bankruptcy or Insolvency Proceedings” or Paragraph 3.5 “Involuntary Bankruptcy or Insolvency Proceedings,” and at any time thereafter during the continuance of such Event of Default beyond any applicable cure periods, Holder may (i) cease advancing money or extending credit to or for the benefit of the Company under any agreement; and (ii) declare all outstanding Obligations payable by Company hereunder to be immediately due and payable without presentment, demand, protest or any other notice of any kind, all of which are hereby expressly waived, anything contained herein or in the other Transaction Documents to the contrary notwithstanding. Upon the occurrence or existence of any Event of Default described in Paragraphs 3.4 , “Voluntary Bankruptcy or Insolvency Proceedings” or Paragraph 3.5 “Involuntary Bankruptcy or Insolvency Proceedings,” immediately and without notice, all outstanding Obligations payable by Company hereunder shall automatically become immediately due and payable, without presentment, demand, protest or any other notice of any kind, all of which are hereby expressly waived, anything contained herein or in the other Transaction Documents to the contrary notwithstanding. In addition to the foregoing remedies, upon the occurrence or existence of any Event of Default, Holder may exercise any other right, power or remedy granted to it by the Transaction Documents, or otherwise permitted to it by law, either by suit in equity or by action at law, or both. In case of an Event of Default, the Company must pay to the Holder such further amount as is sufficient to cover the cost and expenses of collection, including, without limitation, all Holder’s costs, fees, expenses or damages of any kind incurred by or imposed upon Holder in connection with or as a consequence of an Event of Default. Without limiting the foregoing, the Company shall pay all Holder’s actual costs of collection and attempted collection, including, without limitation: (i) those expenses incurred or paid to protect, preserve, collect, lease, sell, repair, improve, advertise, locate, take possession of, liquidate or otherwise deal with any collateral; (ii) expenses of dealing with any person or entity in any bankruptcy proceeding; (iii) all out-of-pocket expenses incurred for the Holder’s attorney and paralegal fees, disbursements, and costs, all at such rates and with respect to such services as the Holder in its sole discretion may elect to pay (as such rates may vary from time to time during the course of the performance of such services) including the costs of attorneys who are employees of the Holder; and (iv) the costs of appraisers, engineers, investment bankers, environmental consultants and other experts that may be retained by the Holder in connection with such collection efforts. Such costs will be added to the unpaid balance of the Note. No course of dealing and no delay on the part of the Holder in exercising any right will operate as a waiver of that right or otherwise prejudice the Holder’s rights, powers or remedies. No right, power or remedy conferred by this Note upon the Holder is exclusive of any other right, power or remedy referred to herein or now or hereafter available at law, in equity, by statute or otherwise. |
| 5. | Subordination and Subrogation. The indebtedness evidenced by this Note is hereby expressly subordinated, to the extent and in the manner hereinafter set forth, in right of payment to the prior payment in full of all of Company’s Senior Indebtedness. |
| 5.1 | Subrogation. Subject to the payment in full of all Senior Indebtedness, the holder of this Note shall be subrogated to the rights of the holder(s) of such Senior Indebtedness (to the extent of the payments or distributions made to the holder(s) of such Senior Indebtedness pursuant to the provisions of this Section 5) to receive payments and distributions of assets of Company applicable to the Senior Indebtedness. No such payments or distributions applicable to the Senior Indebtedness shall, as between Company and its creditors, other than the holders of Senior Indebtedness and the Holder, be deemed to be a payment by Company to or on account of this Note; and for purposes of such subrogation, no payments or distributions to the holders of Senior Indebtedness to which the Holder would be entitled except for the provisions of this Section 5 shall, as between Company and its creditors, other than the holders of Senior Indebtedness and the Holder, be deemed to be a payment by Company to or on account of the Senior Indebtedness. |
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| 5.2 | No Impairment. Nothing contained in this Section 5 shall impair, as between Company and Holder, the obligation of Company, subject to the terms and conditions hereof, to pay to the Holder the principal hereof and interest hereon as and when the same become due and payable, or shall prevent the Holder of this Note, upon default hereunder, from exercising all rights, powers and remedies otherwise provided herein or by applicable law. |
| 6. | Prepayment. The principal amount of this Note and the accrued interest thereon may be prepaid without the written consent of the Holder. Any such permitted prepayment will be applied first to the payment of costs or expenses due under this Note or the related Note Purchase Agreement, second to interest accrued on this Note, if any, and third, if the amount of prepayment exceeds the amount of all such expenses and accrued interest, to the payment of principal of this Note. |
| 7. | Successors and Assigns. Subject to the restrictions on transfer described in Section 9 below, the rights and obligations of Company and the Holder of this Note shall be binding upon and benefit the successors, assigns, heirs, administrators and transferees of the Parties. |
| 8. | Waiver and Amendment. Any provision of this Note may be amended, waived or modified upon the written consent of Company and the Holder. |
| 9. | Transfer of this Note. Holder may transfer this Note to any affiliate or successor-in- interest, or any agency of the State of Maine (including, but not limited to, the Finance Authority of Maine), subject to the applicable federal and state securities laws. Neither this Note nor any of the rights, interests or obligations hereunder may be assigned in whole or in part by Company without the prior written consent of the Holder. |
| 10. | Indemnification by Company. The Company agrees to indemnify, defend, save and hold harmless the Holder, its Officers, Directors, employees, agents and representatives, at the Company’s cost and expense, from and against any and all actual and alleged demands, claims, lawsuits, obligations, liabilities, losses, fees, costs, expenses and damages, including without limitation those listed in Sections 4 and 13 of this Note and other Transaction documents, incurred or imposed upon the Holder in connection with or as a consequence of any claims (including but not limited to third party claims), suits, actions, demands, or judgments arising out of or resulting from: (i) any actions or omissions of the Company, its officers, directors, employees, representatives, independent contractors, subcontractors, licensees or consultants; or (ii) Company’s performance or non-performance of its obligations under the Transaction Documents. |
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| 11. | Notices. Any notice, request or other communication required or permitted hereunder shall be in writing and shall be deemed to have been duly given if made consistent with the provisions of the Note Purchase Agreement of even date. Either Party hereto may by notice so given change its address for future notice hereunder. |
| 12. | Payment. Payment shall be made in lawful tender of the United States. |
| 13. | Expenses; Waivers. If action is instituted to collect this Note, the Company shall pay all costs and expenses, including, without limitation, reasonable attorneys ' fees and costs, incurred in connection with such action. Company hereby waives notice of default, presentment or demand for payment, protest or notice of nonpayment or dishonor and all other notices or demands relative to this instrument. |
| 14. | Governing Law. This Note and all actions arising out of or in connection with this Note shall be governed by and construed in accordance with the laws of the State of Maine, without regard to the conflicts of law provisions of the State of Maine or of any other state. |
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IN WITNESS WHEREOF, Company has caused this Note to be duly executed and delivered by its proper and duly authorized representative as an instrument under seal for purposes of 14 MRS§751 and I MRS §72(26-B) as of the date and year first written above.
| COMPANY: | ATTESTING WITNESS | ||
| ImmuCell Corporation | |||
| 56 Evergreen Drive | |||
| Portland, Maine 04103 | |||
| By: | /s/ Michael Brigham | /s/ Elizabeth S Toothaker | |
| Name: | Michael Brigham | ||
| Title: | President & CEO | ||
| Date: | June 30, 2021 | Date: June 30, 2021 | |