EXHIBIT 4.13
8% DEBENTURE
$__________ January __, 2007
FOR VALUE RECEIVED, Intraop Medical Corporation, a Nevada
corporation (the "MAKER"), with its primary offices located at 000 Xxx Xxx
Xxxxxx, Xxxxxxxxx, Xxxxxxxxxx 00000 promises to pay to the order of
_____________, or its registered assigns (the "PAYEE"), upon the terms set forth
below, the principal sum of ______________ Dollars ($_______) plus interest on
the unpaid principal sum outstanding at the rate of 8% per annum (the
"DEBENTURE"). This Debenture is issued pursuant to the Securities Purchase
Agreement, dated as of January __, 2007 (the "PURCHASE AGREEMENT"), and defined
terms used herein but not defined herein shall have the meanings given to such
terms in the Purchase Agreement.
1. PAYMENTS.
(a) The full amount of principal and accrued interest under this
Debenture shall be due on April __, 2007 (the "MATURITY DATE"), unless
due earlier in accordance with the terms of this Debenture.
(b) Maker may prepay, in whole or in part, the principal sum and
interest under this Debenture without the prior written consent of
Xxxxx.
2. 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 failure to pay the principal of, or the interest on,
this Debenture, as and when the same shall become due and
payable;
(ii) Maker shall fail to observe or perform any obligation or
shall breach any term or provision of this Debenture and such
failure or breach shall not have been remedied within 5
calendar days after the date on which notice of such failure
or breach shall have been delivered;
(iii) Maker or any of its Subsidiaries shall fail to observe
or perform any of their respective obligations owed to Payee
or any other covenant, agreement, representation or warranty
contained in, or otherwise commit any breach hereunder or in,
the Purchase Agreement or the Transaction Documents which
failure is not cured, if possible to cure, within the earlier
to occur of (A) 15 business days after notice of such default
sent by the Payee and (B) 20 business days after the Maker
shall become or should have become aware of such failure;
(iv) Maker or any of its Subsidiaries shall commence, or there
shall be commenced against Maker or any Subsidiary, a case
under any applicable bankruptcy or insolvency laws as now or
hereafter in effect or any successor thereto, or Maker or any
Subsidiary commences 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 Maker or any Subsidiary, or there is commenced
against Maker or any Subsidiary any such bankruptcy,
insolvency or other proceeding which remains undismissed for a
period of 60 days; or Maker or any Subsidiary is adjudicated
insolvent or bankrupt; or any order of relief or other order
approving any such case or proceeding is entered; or Maker or
any Subsidiary 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; or
Maker or any Subsidiary makes a general assignment for the
benefit of creditors; or Maker or any Subsidiary shall fail to
pay, or shall state that it is unable to pay, or shall be
unable to pay, its debts generally as they become due; or
Maker or any Subsidiary shall call a meeting of its creditors
with a view to arranging a composition, adjustment or
restructuring of its debts; or Maker or any Subsidiary shall
by any act or failure to act expressly indicate its consent
to, approval of or acquiescence in any of the foregoing; or
any corporate or other action is taken by Maker or any
Subsidiary for the purpose of effecting any of the foregoing;
(v) Maker or any Subsidiary shall default in any of its
respective obligations under any other note or any mortgage,
credit agreement or other facility, indenture agreement,
factoring agreement or other instrument under which there may
be issued, or by which there may be secured or evidenced any
indebtedness for borrowed money or money due under any long
term leasing or factoring arrangement of Maker or any
Subsidiary in an amount exceeding $150,000, whether such
indebtedness now exists or shall hereafter be created and such
default shall result in such indebtedness becoming or being
declared due and payable prior to the date on which it would
otherwise become due and payable;
(vi) Maker shall (a) be a party to any Change of Control
Transaction (as defined below) unless directly as a result of
the issuance of securities pursuant to the Purchase Agreement
or any other agreement for securities pursuant to which the
Payee was a participant, (b) agree to sell or dispose all or
in excess of 33% of its assets in one or more transactions
(whether or not such sale would constitute a Change of Control
Transaction), (c) redeem or repurchase more than a DE MINIMIS
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number of shares of Common Stock or other equity securities of
Maker, or (d) make any distribution or declare or pay any
dividends (in cash or other property, other than common stock)
on, or purchase, acquire, redeem, or retire any of Maker's
capital stock, of any class, whether now or hereafter
outstanding. "CHANGE OF CONTROL TRANSACTION" means the
occurrence after the date hereof of any of (i) an acquisition
after the date hereof by an individual or legal entity or
"group" (as described in Rule 13d-5(b)(1) promulgated under
the Securities Exchange Act of 1934, as amended) of effective
control (whether through legal or beneficial ownership of
capital stock of the Maker, by contract or otherwise) of in
excess of 33% of the voting securities of the Maker (other
than by means of exercise of the Warrants), or (ii) the Maker
merges into or consolidates with any other Person, or any
Person merges into or consolidates with the Maker and, after
giving effect to such transaction, the stockholders of the
Maker immediately prior to such transaction own less than 66%
of the aggregate voting power of the Maker or the successor
entity of such transaction, or (iii) the Maker sells or
transfers all or substantially all of its assets to another
Person and the stockholders of the Maker immediately prior to
such transaction own less than 66% of the aggregate voting
power of the acquiring entity immediately after the
transaction, or (iv) a replacement at one time or within a
three year period of more than one-half of the members of the
Maker's board of directors which is not approved by a majority
of those individuals who are members of the board of directors
on the date hereof (or by those individuals who are serving as
members of the board of directors on any date whose nomination
to the board of directors was approved by a majority of the
members of the board of directors who are members on the date
hereof), or (v) the execution by the Maker of an agreement to
which the Maker is a party or by which it is bound, providing
for any of the events set forth in clauses (i) through (iv)
above; or
(vii) Maker shall unreasonably modify or change its method of
accounting or enter into, modify, or terminate any agreement
currently existing, or at any time hereafter entered into with
any third party accounting firm or service bureau for the
preparation or storage of its accounting records, or restate
or modify its financial statements for any period of time
prior to the date of this Debenture.
(b) If any Event of Default occurs, the full principal amount of this
Debenture, together with all accrued interest thereon, shall become, at
the Payee's election, immediately due and payable in cash. Commencing 5
calendar days after the occurrence of any Event of Default that results
in the acceleration of this Debenture, the interest rate on this
Debenture shall accrue at the rate of 18% per annum, or such lower
maximum amount of interest permitted to be charged under applicable
law. The Payee need not provide, and Maker hereby waives, any
presentment, demand, protest or other notice of any kind, and the Payee
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 Xxxxx at any time prior to payment hereunder. No such
rescission or annulment shall affect any subsequent Event of Default or
impair any right consequent thereon.
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3. NO WAIVER OF PAYEE'S RIGHTS. All payments of principal and interest shall be
made without setoff, deduction or counterclaim. No delay or failure on the part
of the Payee in exercising any of its options, powers or rights, nor any partial
or single exercise of its options, powers or rights shall constitute a waiver
thereof or of any other option, power or right, and no waiver on the part of the
Payee of any of its options, powers or rights shall constitute a waiver of any
other option, power or right. Maker hereby waives presentment of payment,
protest, and all notices or demands in connection with the delivery, acceptance,
performance, default or endorsement of this Debenture. Acceptance by the Payee
of less than the full amount due and payable hereunder shall in no way limit the
right of the Payee to require full payment of all sums due and payable hereunder
in accordance with the terms hereof.
4. MODIFICATIONS. No term or provision contained herein may be modified, amended
or waived except by written agreement or consent signed by the party to be bound
thereby.
5. CUMULATIVE RIGHTS AND REMEDIES; USURY. The rights and remedies of Payee
expressed herein are cumulative and not exclusive of any rights and remedies
otherwise available under the Transaction Documents or applicable law (including
at equity). The election of Payee to avail itself of any one or more remedies
shall not be a bar to any other available remedies, which Maker agrees Payee may
take from time to time. If it shall be found that any interest due hereunder
shall violate applicable laws governing usury, the applicable rate of interest
due hereunder shall be reduced to the maximum permitted rate of interest under
such law.
6. COLLECTION EXPENSES. If Payee shall commence an action or proceeding to
enforce this Debenture, then Maker shall reimburse Payee for its costs of
collection and reasonable attorneys fees incurred with the investigation,
preparation and prosecution of such action or proceeding.
7. SEVERABILITY. If any provision of this Debenture is declared by a court of
competent jurisdiction to be in any way invalid, illegal or unenforceable, the
balance of this Debenture 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 shall violate applicable
laws governing usury, the applicable rate of interest due hereunder shall
automatically be lowered to equal the maximum permitted rate of interest.
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8. SUCCESSORS AND ASSIGNS. This Debenture shall be binding upon Maker and its
successors and shall inure to the benefit of the Payee and its successors and
assigns. The term "Payee" as used herein, shall also include any endorsee,
assignee or other holder of this Debenture.
9. LOST OR STOLEN PROMISSORY DEBENTURE. If this Debenture is lost, stolen,
mutilated or otherwise destroyed, Maker shall execute and deliver to the Payee a
new promissory note containing the same terms, and in the same form, as this
Debenture. In such event, Maker may require the Payee to deliver to Maker an
affidavit of lost instrument and customary indemnity in respect thereof as a
condition to the delivery of any such new promissory note.
10. DUE AUTHORIZATION. This Debenture has been duly authorized, executed and
delivered by Maker and is the legal obligation of Maker, enforceable against
Maker in accordance with its terms. No consent of any other party and no
consent, license, approval or authorization of, or registration or declaration
with, any governmental authority, bureau or agency is required in connection
with the execution, delivery or performance by the Maker, or the validity or
enforceability of this Debenture other than such as have been met or obtained.
The execution, delivery and performance of this Debenture and all other
agreements and instruments executed and delivered or to be executed and
delivered pursuant hereto or thereto or the securities issuable upon conversion
of this will not violate any provision of any existing law or regulation or any
order or decree of any court, regulatory body or administrative agency or the
certificate of incorporation or by-laws of the Maker or any mortgage, indenture,
contract or other agreement to which the Maker is a party or by which the Maker
or any property or assets of the Maker may be bound.
11. GOVERNING LAW. All questions concerning the construction, validity,
enforcement and interpretation of this Debenture 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 conflict of laws thereof. Each of
Maker and Payee agree that all legal proceedings concerning the interpretations,
enforcement and defense of this Debenture shall be commenced in the state and
federal courts sitting in the City of New York, Borough of Manhattan (the "NEW
YORK COURTS"). Each of Maker and Payee hereby irrevocably submit to the
exclusive jurisdiction of the New York Courts for the adjudication of any
dispute hereunder (including the enforcement of this Debenture), 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, that such suit, action or proceeding is improper. Each of Maker and Payee
hereby irrevocably waive 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 the other at the address in effect for notices to it under this
Debenture 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 of Maker and Payee hereby irrevocably waive, 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 Debenture or the transactions
contemplated hereby.
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12. NOTICE. Any and all notices or other communications or deliveries to be
provided by the Payee hereunder shall be in writing and delivered personally, by
facsimile, sent by a nationally recognized overnight courier service or sent by
certified or registered mail, postage prepaid, addressed to the Maker at 000 Xxx
Xxx Xxxxxx, Xxxxxxxxx, Xxxxxxxxxx 00000, facsimile number: (000) 000-0000,
Attention: Xxxxxx X. Xxxx, Chief Executive Officer, or such other address or
facsimile number as the Maker may specify for such purposes by notice to the
Payee delivered in accordance with this paragraph. Any and all notices or other
communications or deliveries to be provided by the Maker hereunder shall be in
writing and delivered personally, by facsimile, sent by a nationally recognized
overnight courier service or sent by certified or registered mail, postage
prepaid, addressed to the Payee at _________, facsimile number: _______,
Attention: _______, or such other address or facsimile number as the Payee may
specify for such purposes by notice to the Maker delivered in accordance with
this paragraph. Any notice or other communication or deliveries hereunder shall
be deemed given and effective on the earliest of (i) the date of transmission if
delivered by hand or by telecopy that has been confirmed as received by 5:00
p.m. (New York City time) on a business day, (ii) one business day after being
sent by nationally recognized overnight courier or received by telecopy after
5:00 p.m. (New York City time) on any day, or (iii) 5 business days after being
sent by certified or registered mail, postage and charges prepaid, return
receipt requested.
The undersigned signs this Debenture as a maker and not as a surety or
guarantor or in any other capacity.
INTRAOP MEDICAL CORPORATION
By: _____________________
Name:
Title:
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