Contract
Exhibit
10.48
NEITHER
THIS SECURITY NOR THE SECURITY INTO WHICH THIS SECURITY IS CONVERTIBLE HAVE
BEEN
REGISTERED WITH THE SECURITIES AND EXCHANGE COMMISSION OR THE SECURITIES
COMMISSION OF ANY STATE IN RELIANCE UPON AN EXEMPTION FROM REGISTRATION UNDER
THE SECURITIES ACT OF 1933, AS AMENDED, AND, ACCORDINGLY, MAY NOT BE OFFERED
OR
SOLD EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES
ACT OR PURSUANT TO AN AVAILABLE EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT
TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND IN ACCORDANCE WITH
APPLICABLE STATE SECURITIES LAWS AS EVIDENCED BY A LEGAL OPINION OF COUNSEL
TO
THE TRANSFEROR TO SUCH EFFECT, THE SUBSTANCE OF WHICH SHALL BE REASONABLY
ACCEPTABLE TO THE COMPANY.
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$50,000
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June
27, 2008
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FOR
VALUE
RECEIVED, Dr. Xxxxxxx, Inc., a Florida corporation, located at 0000 Xxxxxxxx
Xxxxxxxxx, Xxxxx 000, Xxxxxxx Xxxxx XX 00000 (the “Borrower”)
hereby
promises to pay to the order of Xxxxxxx X. Xxxxxx (the “Holder”),
the
principal sum of Fifty Thousand Dollars ($50,000), upon the following
terms:
1. Interest
Rate.
Interest shall accrue on the unpaid principal balance of this Note from the
date
of issuance until paid or converted in full at the rate of twelve percent (12%)
per annum, calculated on a 365/366 day year, as applicable.
2.
Payment
Terms.
The
Borrower agrees to pay the unpaid principal balance of this Note and all accrued
and unpaid interest on the date that is the earlier of (i) 180 days from the
date of issuance, or (ii) five (5) business days from the date of closing by
Borrower of equity financing in the aggregate of not less than $5.0 million
(the
“Maturity
Date”),
unless previously converted in accordance with Section 4 hereof. Borrower may
prepay all or any part of interest or principal at any time without penalty.
3. Manner
and Place of Payment; Holidays.
All
payments on this Note shall be made in coin or currency which, at the time
or
times of payment, constitute legal tender for public or private debts in the
United States of America. All payments on this Note shall be made to Holder
at
the address stated above, or at such other address as Holder shall designate
in
writing. If the prescribed date of payment of any of the principal or interest
hereon is a Saturday, Sunday or legal holiday, such payment shall be due on
the
next succeeding business day.
4. Conversion
Rights.
(i) Conversion.
The
Holder, at its option, so long as any portion of this Note remains outstanding,
may elect to convert any outstanding and unpaid principal portion of this Note,
and any accrued and unpaid interest (the date of giving of such notice of
conversion being a “Conversion
Date”)
into
shares (“Shares”)
of the
Borrower’s common stock, par value $.0001 per share (“Common
Stock”),
at
the conversion price as defined in Section 4(ii) hereof (the “Conversion
Price”),
determined as provided herein. Upon delivery to the Borrower of a completed
Notice of Conversion, a form of which is annexed hereto, Borrower shall issue
and deliver to the Holder within three (3) business days after the Conversion
Date (such third day being the “Delivery
Date”)
a
certificate evidencing the Shares issuable for the portion of the Note converted
in accordance with the foregoing. The Shares issuable upon conversion of this
Note shall be determined by dividing that portion of the principal of the Note
and interest, if any, to be converted, by the Conversion Price. On the
Conversion Date any and all obligations of the Borrower with respect to the
portion of the Note so converted shall be deemed satisfied, and the Borrower
will have no further obligation under the Note with respect to such converted
portion in any way other than to issue the Shares.
(ii) Conversion
Price.
Subject
to adjustment as provided in Section 4(iii) hereof, the Conversion Price per
Share shall be the lesser of (1) $1.00 or (2) eighty percent (80%) of the
initial purchase price of the Common Stock in the public offering of the
Borrower’s securities (“Public
Offering”).
In
the event any portion of this Note is converted prior to the commencement of
the
Public Offering, the Conversion Price shall be $1.00 per share. Fractional
Shares will not be issued and will instead be rounded up to the nearest whole
Share.
(iii) Adjustment.
The
Conversion Price and number and kind of shares or other securities to be issued
upon conversion determined pursuant to Section 4(i), shall be subject to
adjustment from time to time upon the happening of certain events while this
conversion right remains outstanding, as follows:
X. Xxxxxx,
Sale of Assets, etc.
If the
Borrower at any time shall consolidate with or merge into or sell or convey
all
or substantially all its assets to any other corporation, this Note, as to
the
unpaid principal portion thereof and accrued interest thereon, shall thereafter
be deemed to evidence the right to purchase such number and kind of shares
or
other securities and property as would have been issuable or distributable
on
account of such consolidation, merger, sale or conveyance, upon or with respect
to the securities subject to the conversion or purchase right immediately prior
to such consolidation, merger, sale or conveyance. The foregoing provision
shall
similarly apply to successive transactions of a similar nature by any such
successor or purchaser.
B. Reclassification,
etc.
If the
Borrower at any time shall, by reclassification or otherwise, change the Shares
into the same or a different number of securities of any class or classes that
may be issued or outstanding, this Note, as to the unpaid principal portion
thereof and accrued interest thereon, shall thereafter be deemed to evidence
the
right to purchase an adjusted number of such securities and kind of securities
as would have been issuable as the result of such change with respect to the
Shares issuable immediately prior to such reclassification or other
change.
C. Splits,
Combinations and Dividends.
If the
Shares are subdivided or combined into a greater or smaller number of Shares,
or
if a dividend is paid on the Shares in the form of additional Shares, the
Conversion Price shall be proportionately reduced in case of subdivision of
Shares or Share dividend or proportionately increased in the case of combination
of Shares, in each such case by the ratio which the total number of Shares
outstanding immediately after such event bears to the total number of Shares
outstanding immediately prior to such event.
(iv) Method
of Conversion.
This
Note may be converted by the Holder in whole or in part as described in Section
4(i) hereof. Upon partial conversion of this Note, a new Note containing the
same date and provisions of this Note shall, at the request of the Holder,
be
issued by the Borrower to the Holder for the principal balance of this Note
which shall not have been converted or paid.
5. Additional
Shares.
Upon
execution of this Note by Xxxxxxxx, Holder shall receive one (1) share of Common
Stock for each share of Common Stock issuable upon conversion of the principal
amount of this Note (“Additional
Shares”),
as if
this Note had been converted on the date of execution of the Note.
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6. Events
of Default and Acceleration.
Time is
of the essence of this Note. The occurrence of any of the following events
shall
constitute an “Event
of Default”
hereunder: (i) Borrower’s failure to pay timely any amount due hereunder, and
such failure continues for ten (10) business days; (ii) bankruptcy,
reorganization, insolvency or liquidation proceedings or other proceedings
for
relief under any bankruptcy law or any law for the relief of debtors shall
be
instituted by or against Borrower and, if instituted against Borrower, Borrower
shall by any action or answer approve of, consent to or acquiesce in any such
proceedings or admit the material allegations of, or default in answering a
petition filed in any such proceeding or such proceedings shall not be dismissed
within ninety (90) calendar days thereafter; (iii) any material breach by
Xxxxxxxx, that remains uncured for greater than 5 days after receipt of written
notice of same, of any of the terms of this Note (other than payment
obligations); (iv) dissolution of the Borrower; or (v) cessation or liquidation
of the Borrower’s business or suspension of the Borrower’s business for more
than forty-five consecutive days. If any such Event of Default occurs, Holder
may, then or at any time thereafter, and at its option, accelerate maturity
and
cause the entire unpaid principal balance of this Note, together with interest
accrued hereon, to become immediately due and payable. If Holder waives Holder’s
right to accelerate maturity as a result of an Event of Default hereunder,
either one or more times or repeatedly, nevertheless Holder shall not be deemed
to have waived the right to require strict compliance with the terms of this
Note thereafter.
7. Interest
After Event of Default, Acceleration or Maturity.
Upon an
occurrence of an Event of Default hereunder, the entire unpaid balance of said
principal sum and interest then accrued shall bear interest, while such Event
of
Default continues both before and after judgment, at ten percent (10%) per
year
on the unpaid balance until paid, calculated on a 365/366 day year, as
applicable.
8. Application
of Payments.
All
sums paid hereon shall be applied first to the payment of accrued interest
due
on the unpaid principal balance and the remainder to the reduction of unpaid
principal.
9. Attorney's
Fees and Expenses.
In the
event that Holder or other holder of this Note brings suit hereon, or employs
an
attorney or incurs expenses to compel payment of this Note or any portion of
the
indebtedness evidenced hereby, or to cure any Event of Default under this Note,
whether through suit, probate, insolvency, reorganization, bankruptcy or any
other legal or informal proceeding, the Borrower and all endorsers, guarantors
and sureties agree additionally to pay all reasonable attorney's fees, court
costs and other reasonable expenses thereby incurred by Xxxxxx or other holder
of this Note.
10. Amendment
and Waivers.
Any
term
or provision of this Note may be amended, and the observance of any term of
this
Note may be waived (either generally or in a particular instance and either
retroactively or prospectively) by a writing signed by Borrower with the consent
of Holder, and such waiver or amendment, as the case may be, shall be binding
upon Borrower and Holder. The waiver by Holder of any breach hereof or default
in the performance hereof shall not be deemed to constitute a waiver of any
other default or any succeeding breach or default.
11. Entire
Agreement; Assignment.
This
Note represent the entire agreement between the parties hereto with respect
to
the subject matter hereof and may be amended only by a writing executed by
both
parties. Neither Borrower nor the Holder have relied on any representations
not
contained or referred to in this Note and the documents delivered herewith.
This
Note may be assigned by Holder at any time upon notice to and with prior written
consent of Xxxxxxxx. This Note may not be assigned by Borrower without the
prior
written consent of Xxxxxx. This Note will be binding in all respects upon
Borrower and inure to the benefit of Xxxxxx and its permitted successors and
assigns.
12. Definitions.
The
terms “Borrower” and “Holder” and other nouns and pronouns include the singular
and/or the plural, as appropriate. The terms “Borrower” and “Holder” also
include their respective heirs, personal representatives, permitted successors
and assigns. The term “Holder” includes subsequent permitted holders of this
Note.
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13. Governing
Law.
This
Note shall be governed by and construed in accordance with the laws of the
State
of Florida without regard to conflicts of laws principles that would result
in
the application of the substantive laws of another jurisdiction. Any action
brought by either party against the other concerning the transactions
contemplated by this Note shall be brought only in the civil or state courts
of
Florida or in the federal courts located in Broward County, Florida.
The
parties and the individuals executing this Note and other agreements referred
to
herein or delivered in connection herewith on behalf of Borrower agree to submit
to the jurisdiction of such courts and waive trial by jury.
The
prevailing party shall be entitled to recover from the other party its
reasonable attorney’s fees and costs. In the event that any provision of this
Note or any other agreement delivered in connection herewith is invalid or
unenforceable under any applicable statute or rule of law, then such provision
shall be deemed inoperative to the extent that it may conflict therewith and
shall be deemed modified to conform with such statute or rule of law. Any such
provision which may prove invalid or unenforceable under any law shall not
affect the validity or enforceability of any other provision of any
agreement.
14. Notice. All
notices, demands, requests, consents, approvals, and other communications
required or permitted hereunder shall be in writing and, unless otherwise
specified herein, shall be (i) personally served, (ii) deposited in the mail,
registered or certified, return receipt requested, postage prepaid, (iii)
delivered by reputable air courier service with charges prepaid, or (iv)
transmitted by hand delivery, telegram, or facsimile, addressed as set forth
below or to such other address as such party shall have specified most recently
by written notice. Any notice or other communication required or permitted
to be
given hereunder shall be deemed effective (a) upon hand delivery or delivery
by
facsimile, with accurate confirmation generated by the transmitting facsimile
machine, at the address or number designated below (if delivered on a business
day during normal business hours where such notice is to be received), or the
first business day following such delivery (if delivered other than on a
business day during normal business hours where such notice is to be received)
or (b) on the second business day following the date of mailing by express
courier service, fully prepaid, addressed to such address, or upon actual
receipt of such mailing, whichever shall first occur.
15. Specific
Enforcement, Consent to Jurisdiction.
It is
agreed that the parties shall not be entitled to injunctive relief to prevent
or
cure breaches of the provisions of this Agreement or the transactions
contemplated thereby. Subject to Section 9(d) hereof, each of the Company,
Subscriber and any signatory hereto in his or her personal capacity hereby
waives, and agrees not to assert in any such suit, action or proceeding, any
claim that it is not personally subject to the jurisdiction of such court,
that
the suit, action or proceeding is brought in an inconvenient forum or that
the
venue of the suit, action or proceeding is improper. Nothing in this Section
shall affect or limit any right to serve process in any other manner permitted
by law.
16. Severability.
If any
part of this Note is adjudged illegal, invalid or unenforceable, such invalidity
or unenforceability shall not affect any other provision of this Note that
can
be given effect without such provision.
17. Shareholder
Status.
The
Holder shall not have rights as a shareholder of the Borrower with respect
to
unconverted portions of this Note. However, the Holder will have all the rights
of a shareholder of the Borrower with respect to the Shares to be received
by
Holder after delivery by the Holder of a Conversion Notice to the
Borrower.
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IN
WITNESS WHEREOF, Xxxxxxxx has executed this Note effective as of the date first
set forth above.
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BORROWER:
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By:
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/s/
Xxxx X. Xxxxx
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Name:
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Xxxx
X. Xxxxx
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Its:
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Chief
Executive Officer
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5
NOTICE
OF CONVERSION
(To
be
executed and delivered by the Holder in order to convert the Note)
The
undersigned hereby elects to convert $_________ of the principal and $_________
of the interest due on the Note issued by Dr. Xxxxxxx, Inc. (the “Borrower”)
on
______________, 20___ into Shares of the Borrower according to the conditions
set forth in such Note, as of the date written below.
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Date
of Conversion:
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Conversion
Price:
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Shares
To Be Issued:
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Signature:
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Print
Name:
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Address:
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