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Exhibit 10.20
PROMISSORY NOTE
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$1,486,006 July 31, 2000
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FOR VALUE RECEIVED, the undersigned, MICHAEL M. GOLDBERG, 159 Lydecker
Street, Englewood, NJ 07631 (the "Maker"), hereby promises to pay to the order
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of EMISPHERE TECHNOLOGIES, INC., a Delaware corporation, with its principal
place of business at 765 Old Saw Mill River Road, Tarrytown, New York 10591 (the
"Lender"), the principal amount of ($1,486,006) DOLLARS, together with interest
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on the unpaid balance of such principal amount from the date hereof at the
following rate:
LIBOR plus 1.00%;
LIBOR may be selected for one, two, three or six month interest maturities;
As of July 31, 2000 LIBOR rates for these periods were 6.62%, 6.66%, 6.72%,
and 6.89%, respectively;
Interest is payable monthly.
The principal amount of this Note, together with all interest accrued thereon,
shall be payable in full by Maker to the Lender at 5:00 p.m., eastern standard
time, on that which is the earliest to occur of: (a) the fifth anniversary of
the date hereof; (b) upon acceleration of the maturity of this Note (as
described herein); or upon sale of all of the Pledged Stock (each (a), (b) and
(c) being a "Maturity Date"). Capitalized terms used herein and not otherwise
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defined shall have the meaning set forth in that certain Pledge Agreement, dated
the date hereof, between the Maker and the Lender (the "Pledge Agreement"), and
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the Stock Option Agreement, dated as of December 1991, as the same has been
amended from time to time, between the Maker and the Lender (the "Stock Option
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Agreement").
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Payments of principal and interest on this Note shall be paid to the
Lender at its principal office as set forth above (or where otherwise specified
by the Lender), by certified or official bank check or personal check (subject
to collection) payable to the Lender. If the date set for any payment of
principal or interest on this Note is a Saturday, Sunday or legal holiday, such
payment shall be due on the next succeeding business day.
Subject to mandatory prepayment (as described below), this Note may be
prepaid in whole or in part from time to time, without premium or penalty, upon
the Maker giving the Lender two (2) days' prior written notice of his intention
to prepay. Concurrently with each prepayment of principal, the Maker shall also
pay accrued interest on the principal amount prepaid, accrued to the date of
prepayment. All
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prepayments shall be applied first to any accrued interest and then to the
outstanding principal amount of this Note.
Principal and accrued interest on this Note are subject to mandatory
prepayment in the event that Maker sells all or any portion of the Pledged Stock
prior to the date on which the principal and accrued interest on this Note would
otherwise become due and payable (such sale is hereinafter referred to as a
"Pre-Maturity Sale"). The amount to be prepaid in such an event shall be an
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amount (the "Net Sale Proceeds") equal to the net after-tax proceeds received or
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to be received by Maker upon such Pre-maturity Sale (calculated assuming the
maximum federal, state and city tax rates applicable as of the date of such
transaction). If Maker sells only a portion of the Pledged Stock in a Pre-
maturity Sale, any principal not prepaid under the terms of this Note shall
remain outstanding and interest shall continue to accrue thereon.
In the event (i) that the Maker commences an action under any law
relating to bankruptcy, insolvency or relief of debtors, there is commenced
against the Maker an action under any such law which results in the entry of an
order for relief or such action remains undismissed for a period of 60 days or
the Maker otherwise becomes insolvent, (ii) that the Maker fails to make
complete payment of accrued interest when due under this Note, (iii) that the
Maker materially violates the Pledge Agreement, (iv) that the Maker materially
violates any material provision of the Employment Agreement, between Maker and
Lender, dated July 31, 2000 (as the same may have been amended from time to
time), (v) upon the death or disability of Maker, (in which case Maker's estate
or representative shall pay any principal amount and interest accrued on this
Note in whole within six (6) months of the date of Maker's death), (vi) if any
material provision of the Pledge Agreement shall for any reason cease to be
valid and binding on Maker; or (vii) the Pledge Agreement shall for any reason
(other than pursuant to the terms thereof) cease to create a valid and perfected
first priority security interest in any of the collateral purported to be
covered thereby; the Lender may accelerate this Note and may, by written notice
to the Maker, declare the entire unpaid principal amount and all such accrued
and unpaid interest thereon to be immediately due and payable and, thereupon,
the unpaid principal amount and all such accrued and unpaid interest shall
become and be forthwith due and payable, without presentment, demand, protest or
further notice of any kind, all of which are expressly waived by the Maker;
provided, however, if the event described in subsection (i) shall occur, then
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any and all amounts under this Note shall automatically become immediately due
and payable; provided, further, however, that if any of the events described in
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(ii), (iii), (iv), (vi) or (vii) of this paragraph occurs, the Maker may, at any
time before the date that is 10 business days after the occurrence of such
event, without the consent of the Lender, remedy such failure or material
violation, and, if the Maker timely effects such remedy, the Lender may not
accelerate this Note as described above. The failure of the Lender to accelerate
this Note shall not constitute a waiver of
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any of the Lender's rights under this Note as long as any of the events
described in (ii), (iii), (iv), (vi) or (vii) continues.
Unless the Maker shall be otherwise notified in writing by the Lender,
all principal and interest hereunder are payable in lawful money of the United
States of America at the office of the Lender at the address shown above in
immediately available funds.
The Maker hereby waives presentment, demand, dishonor, protest, notice
of protest, diligence and any other notice or action otherwise required to be
given or taken under the law in connection with the delivery, acceptance,
performance, default, enforcement or collection of this Note.
Notwithstanding anything to the contrary contained in Section 8 of the
Stock Option Agreement (or any other agreements or understandings), Maker hereby
agrees and covenants that Lender shall have full recourse against Maker for the
payment of the entire principal amount of this Note, and all accrued interest
thereon.
No consent or waiver by the holder hereof with respect to any action
or failure to act which, without such consent or waiver, would constitute a
breach of any provision of this Note shall be valid and binding unless in
writing and signed by the holder hereof.
This Note shall be governed by and construed in accordance with the
laws of the State of New York without regard to the principles of conflict of
laws.
IN WITNESS WHEREOF, the Maker has caused this Note to be executed as
of the date first above written.
ATTEST:
/S/ Charles Abdalian /S/ Michael M. Goldberg
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MICHAEL M. GOLDBERG
