Contract
THIS
NOTE
HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
"1933
ACT"), OR UNDER THE PROVISIONS OF ANY APPLICABLE STATE SECURITIES LAWS, BUT
HAS
BEEN ACQUIRED BY THE REGISTERED HOLDER HEREOF FOR PURPOSES OF INVESTMENT
AND IN
RELIANCE ON STATUTORY EXEMPTIONS UNDER THE 1933 ACT, AND UNDER ANY APPLICABLE
STATE SECURITIES LAWS. THIS NOTE MAY NOT BE SOLD, PLEDGED, TRANSFERRED OR
ASSIGNED EXCEPT IN A TRANSACTION WHICH IS EXEMPT UNDER PROVISIONS OF THE
1933
ACT AND ANY APPLICABLE STATE SECURITIES LAWS OR PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT; AND IN THE CASE OF AN EXEMPTION, ONLY IF THE COMPANY
HAS
RECEIVED AN OPINION OF COUNSEL SATISFACTORY TO THE COMPANY THAT SUCH TRANSACTION
DOES NOT REQUIRE REGISTRATION OF THIS NOTE.
GAMMACAN
INTERNATIONAL, INC.
|
November
20, 2006
|
$350,000.00
|
FOR
VALUE RECEIVED,
the
undersigned, GammaCan
International, Inc.,
a
Delaware corporation (the “Company”), hereby promises to pay the individuals and
entities set forth on Schedule A, annexed hereto, (collectively, the “Lenders”)
on November 20, 2007 (the “Maturity Date”) the principal sum of Three
Hundred Fifty Thousand Dollars ($350,000) and
interest on the outstanding principal sum hereof at the rate of eight percent
(8%) per annum (this "Note"), as set forth herein, pursuant to the following
terms:
1. Principal
and Interest.
Principal
and interest shall be payable on the Maturity Date in like coin or currency
to
the Lenders hereof at the office of the Company as hereinafter set forth,
provided that any payment otherwise due on a Saturday, Sunday or legal Bank
holiday may be paid on the following business day. In the event that for
any
reason whatsoever any interest or other consideration payable with respect
to
this Note shall be deemed to be usurious by a court of competent jurisdiction
under the laws of any state governing the repayment hereof, then so much
of such
interest or other consideration as shall be deemed to be usurious shall be
held
by the holder as security for the repayment of the principal amount hereof
and
shall otherwise be waived
2. Right
of Prepayment.
Upon 5
days’ written notice delivered to the Lenders the Company at its option shall
have the right to prepay a portion or all outstanding principal of the Note,
provided, however, that the Lenders may choose within 5 days of receipt of
notice of the Company’s intention to repay to exercise its right of conversion
under Section 3 hereunder. There shall be no prepayment fee or
penalty.
3. Conversion
to Debt or Equity.
At the
sole discretion of the Lenders, the entire amount outstanding under the Note
may
be converted at any time prior to repayment in full into debt or equity of
the
Company on the same terms as any debt or equity financing that the Company
may
issue or grant during the 12 month period immediately following the date
of this
Note. The conversion right of the Lenders may be exercised at the time of
the
Company’s issuance of the said financing equity or at any time thereafter up to
the date of full payment of the Note.
4. Event
of Default.
An
“Event
of Default”
shall
be deemed to have occurred upon the occurrence of any of the following: (i)
the
Company should fail for any reason or for no reason to make any payment of
the
principal, interest, costs, indemnities, or expenses pursuant to this Note
within ten (10) days of the date due as prescribed herein; (ii) the Company
shall: (1) commence a voluntary case for relief as a debtor under the
United States Bankruptcy Code; (2) file with or otherwise submit to any
governmental authority any petition, answer or other document seeking:
(A) reorganization, (B) an arrangement with creditors or (C) to
take advantage of any other present or future applicable law respecting
bankruptcy, reorganization, insolvency, readjustment of debts, relief of
debtors, dissolution or liquidation; (3) be adjudicated a bankrupt or
insolvent by a court of competent jurisdiction, or (4) sell or otherwise
dispose
of any material assets of the Company or any its material subsidiaries without
the prior written consent of the Lenders, or (5) be in material breach of
any
agreement that is material to the Company for a period in excess of 10 days
.
Upon an Event of Default (as defined above), the entire principal balance
outstanding under this Note, together with accrued unpaid interest thereon,
shall be immediately be due and payable, without further notice to the
Company.
5. Maximum
Interest Rate.
In no
event shall any agreed to or actual interest charged, reserved or taken by
the
Lenders as consideration for this Note exceed the limits imposed by New York
law. In the event that the interest provisions of this Note shall result
at any
time or for any reason in an effective rate of interest that exceeds the
maximum
interest rate permitted by applicable law, then without further agreement
or
notice the obligation to be fulfilled shall be automatically reduced to such
limit and all sums received by the Lenders in excess of those lawfully
collectible as interest shall be applied against the principal of this Note
immediately upon the Lenders’ receipt thereof, with the same force and effect as
though the Company had specifically designated such extra sums to be so applied
to principal and the Lenders had agreed to accept such extra payment(s) as
a
premium-free prepayment or prepayments.
6. Cancellation
of Note.
Upon
the repayment by the Company of all of its obligations hereunder to the Lenders,
including, without limitation, the principal amount of this Note, plus accrued
but unpaid interest, the indebtedness evidenced hereby shall be deemed canceled
and paid in full. Except as otherwise required by law or by the provisions
of
this Note, payments received by the Lenders hereunder shall be applied first
against expenses and indemnities, next against interest accrued on this Note,
and next in reduction of the outstanding principal balance of this
Note.
7. Severability.
If any
provision of this Note is, for any reason, invalid or unenforceable, the
remaining provisions of this Note will nevertheless be valid and enforceable
and
will remain in full force and effect. Any provision of this Note that is
held
invalid or unenforceable by a court of competent jurisdiction will be deemed
modified to the extent necessary to make it valid and enforceable and as
so
modified will remain in full force and effect.
8. Amendment
and Waiver.
This
Note may be amended, or any provision of this Note may be waived, provided
that
any such amendment or waiver will be binding on a party hereto only if such
amendment or waiver is set forth in a writing executed by the parties hereto.
The waiver by any such party hereto of a breach of any provision of this
Note
shall not operate or be construed as a waiver of any other breach.
9. Successors.
Except
as otherwise provided herein, this Note shall bind and inure to the benefit
of
and be enforceable by the parties hereto and their permitted successors and
assigns.
10.
Assignment.
This
Note shall not be directly or indirectly assignable or delegable by the Company.
The Lenders may assign this Note as long as such assignment complies with
the
Securities Act of 1933, as amended.
11. No
Strict Construction.
The
language used in this Note will be deemed to be the language chosen by the
parties hereto to express their mutual intent, and no rule of strict
construction will be applied against any party.
12. Further
Assurances.
Each
party hereto will execute all documents and take such other actions as the
other
party may reasonably request in order to consummate the transactions provided
for herein and to accomplish the purposes of this Note.
13. Governing
Law.
This
Agreement shall be governed and construed in accordance with the laws of
the
State of New York without regard to any applicable principles of conflicts
of
law.
14. No
Inconsistent Agreements.
None of
the parties hereto will hereafter enter into any agreement, which is
inconsistent with the rights granted to the parties in this Note.
15. Entire
Agreement. This
Note (including any recitals hereto) set forth the entire understanding of
the
parties with respect to the subject matter hereof, and shall not be modified
or
affected by any offer, proposal, statement or representation, oral or written,
made by or for any party in connection with the negotiation of the terms
hereof,
and may be modified only by instruments signed by all of the parties
hereto.
IN
WITNESS WHEREOF,
this
Promissory Note is executed by the undersigned as of the date hereof.
| GAMMACAN INTERNATIONAL, INC. | ||
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|
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| By: | /s/ Xxxxxxx Xxxxxxxxxxxxx | |
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Xxxxxxx
Xxxxxxxxxxxxx
Chief
Executive Officer
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