THIS NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR ANY OTHER SECURITIES LAWS, AND IT MAY NOT BE SOLD, TRANSFERRED OR OTHERWISE DISPOSED OF UNLESS SO REGISTERED OR UNLESS SOLD PURSUANT TO AN EXEMPTION THEREFROM. THIS...
Exhibit
99.1
THIS
NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR
ANY OTHER SECURITIES LAWS, AND IT MAY NOT BE SOLD, TRANSFERRED OR OTHERWISE
DISPOSED OF UNLESS SO REGISTERED OR UNLESS SOLD PURSUANT TO AN EXEMPTION
THEREFROM. THIS NOTE MAY BE TRANSFERRED ONLY IN COMPLIANCE WITH THE
CONDITIONS SPECIFIED IN THIS NOTE.
$500,000.00 |
June 30,
2009
|
FOR VALUE
RECEIVED, the undersigned, HEALTH DISCOVERY CORPORATION (the “Company”), a Georgia
corporation, hereby promises to pay to the order of Xxx XxXxxxxx or his, her or
its permitted, registered assigns (the “Holder”), the
principal sum of Five Hundred Thousand Dollars ($500,000.00), payable on the
earlier of (i) January 4, 2010, or (ii) when declared due and payable by the
Holder upon the occurrence of an Event of Default (as defined below) (in the
case of either (i) or (ii), the “Maturity
Date”).
Principal
and interest, if any, shall be payable in lawful money of the United States of
America at such place as the Holder may designate from time to time in writing
to the Company. Any payment of principal which is not paid when due
shall bear interest until paid at a simple rate of interest equal to eight
percent (8%) per annum; provided, however, that delinquent installments of
interest shall not bear interest if and to the extent prohibited by applicable
law. Any interest required to be paid due to a delinquent payment
shall be computed on the basis of a three hundred sixty five day year and for
the actual number of days elapsed. The entire principal hereof,
together with all accrued and unpaid interest hereon shall be due and payable on
the Maturity Date. All payments received from the Company by Holder
shall be first applied to interest to the extent then accrued then to
principal.
The
following is a statement of the rights of the Holder of this Note 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 terms have the following meanings:
1.1 “Assets” means the
intellectual property and certain other assets set forth on Exhibit A; provided,
however, that if the inclusion of any asset on Exhibit A would result in the
Company breaching any written contract currently outstanding, such asset shall
be removed from Exhibit A.
1.2 “Change of Control”
means the consummation of (i) a merger, consolidation, share exchange,
combination, reorganization, or like transaction involving the Company in which
the shareholders of the Company immediately prior to such transaction do not own
at least seventy-five percent (75%) of the value or voting power of the issued
and outstanding capital stock of the Company or its successor immediately after
such transaction, or (ii) the sale or transfer (other than as security for the
Company's obligations) of all or substantially all of the assets of the Company
in any transaction or a series of related transactions, in which the Company,
any corporation controlled by the Company, or the shareholders of the Company
immediately prior to the transaction do not own at least seventy-five percent
(75%) of the value or voting power of the issued and outstanding equity
securities of the acquirer immediately after the transaction.
1.3 “Company” shall
include any corporation which shall succeed to or assume the obligations of the
Company under this Note.
1
1.4 “Holder,” when the
context refers to a holder of this Note, shall mean any person who shall at the
time be the registered holder of this Note.
2.
Events of
Default. If any of the events specified in this Section 2 shall occur
(herein individually referred to as an “Event of Default”),
the Holder of the Note may, so long as such condition exists, declare the entire
principal and unpaid accrued interest hereon immediately due and payable in
cash, by notice in writing to the Company:
2.1. Default
in the payment of the principal or unpaid accrued interest of this Note when due
and payable if such default is not cured by the Company within thirty (30) days
after the Holder has given the Company written notice of such default;
or
2.2. Upon
a Change of Control; provided; however, that no Event of Default shall deemed to
have occurred if the Holder approves such Change of Control; or
2.3. The
institution by the Company of proceedings to be adjudicated as bankrupt or
insolvent, or the consent by it to institution of bankruptcy or insolvency
proceedings against it or the filing by it of a petition or answer or consent
seeking reorganization or release under the federal Bankruptcy Act, or any other
applicable federal or state law, or the consent by it to the filing of any such
petition or the appointment of a receiver, liquidator, assignee, trustee or
other similar official of the Company, or of any substantial part of its
property, or the making by it of an assignment for the benefit of creditors, or
the taking of corporate action by the Company in furtherance of any such action;
or
2.4. If,
within ninety (90) days after the commencement of an action against the Company
(and service of process in connection therewith on the Company) seeking any
bankruptcy, insolvency, reorganization, liquidation or dissolution or similar
relief under any present or future statute, law or regulation, such action shall
not have been resolved in favor of the Company or all orders or proceedings
thereunder affecting the operations or the business of the Company stayed, or if
the stay of any such order or proceeding shall thereafter be set aside, or if,
within ninety (90) days after the appointment without the consent or
acquiescence of the Company of any trustee, receiver or liquidator of the
Company or of all or any substantial part of the properties of the Company, such
appointment shall not have been vacated.
3.
Collateral. Until
all amounts due under this Note are paid, the Holder of this Note shall be
provided the opportunity to retain first priority security position in the
Assets. Xxxxx agrees to execute and deliver to Holder any
document reasonably necessary to evidence such security interest and
the priority thereof. If Holder exercises any remedies under this
Note, upon the Company’s written request, Holder shall grant the Company on
commercially reasonable terms an exclusive license (with the right to
grant sublicenses) under the Assets to make, have made, use, sell, offer for
sale and import all uses worldwide in all fields of use. Xxxxxx agrees to
execute such documents as are reasonably requested by the Company to release
such security interest when Holder no longer has a right to receive payments
under this Note.
4.
Prepayment.
4.1. At
any time after the date hereof, the Company has the right, at the Company’s
option, to prepay the remaining balance of the Note, without penalty, prepayment
premium or payment of unearned interest (the “Prepayment”).
2
4.2. Prepayment
Procedure. Before the Company shall be entitled to prepay the
Note in accordance with Section 4.1 above, it shall give written notice to the
Holder, notifying the Holder of its desire to exercise its right of Prepayment
and specifying the remaining balance of the Note and the date on which such
Prepayment will occur (the “Prepayment Closing
Date”). On the Prepayment Closing Date, the Company will pay
to the Holder in cash or other immediately available funds an amount equal to
the remaining balance of the Note, including any accrued interest, and the
Holder shall deliver to the Company the Note.
5.
Restrictions on
Transfer of the Note. This Note may only be transferred in
compliance with the terms and conditions of this Note, and the rights and
obligations of the Company and the Holder of this Note shall be binding upon and
benefit any permitted and registered successors, assigns, heirs, administrators
and transferees of the parties. Subject to the limitations contained
in the following sentence, the Holder may transfer its interest to one of the
Holder’s affiliates. In addition to such transfer restrictions,
Holder must comply with all relevant federal and state securities laws, and, if
the Company requires, provide an opinion of counsel reasonably satisfactory to
the Company that any requested transfer does not violate federal or state
securities laws.
6.
Lost or Destroyed
Note. Upon receipt of evidence satisfactory to the Company of the loss,
theft, destruction or mutilation of this Note and, if requested in the case of
any such loss, theft or destruction, upon delivery of an indemnity bond or other
agreement or security reasonably satisfactory to the Company, or, in the case of
any such mutilation, upon surrender and cancellation of this Note, the Company
will issue a new Note, in the amount of the unpaid principal balance of the
lost, stolen, destroyed or mutilated Note and dated the date to which interest
has been paid, in lieu of such lost, stolen, destroyed or mutilated
Note.
7.
Expenses;
Waivers; Amendment. If action is instituted to collect this Note, the
Company promises to pay all reasonable costs and expenses, including without
limitation reasonable attorneys’ fees and costs, incurred in respect with such
action. The Company hereby waives notice of default, presentation or demand for
payment, protest or notice of nonpayment or dishonor and all other notices or
demands relative to this Note. Any provision of this Note may be
amended, waived or modified upon the written consent of the Company and
Holder.
8.
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 personally delivered or
if faxed or mailed by registered or certified mail, postage prepaid, at the
respective addresses of the parties as set forth herein. Any party hereto may by
notice so given change its address for future notice hereunder. Notice shall
conclusively be deemed to have been given when personally delivered or when
deposited in the mail in the manner set forth above and shall be deemed to have
been received when delivered.
9.
No Shareholder
Rights. Nothing contained in this Note shall be construed as conferring
upon the Holder or any other person the right to vote or to consent, except as
provided herein, or to receive notice as a shareholder in respect of meetings of
shareholders for the election of directors of the Company or any other matters
or any rights whatsoever as a shareholder of the Company; and no dividends shall
be payable or accrued in respect of this Note.
10. 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 Georgia,
excluding that body of law relating to conflict of laws.
[Signature
Page Follows]
3
IN WITNESS WHEREOF, the
Company has caused this Note to be issued this 30th day of
June, 2009.
HEALTH DISCOVERY CORPORATION | |||
|
By:
|
/s/ Xxxxxxx Xxxxxxxx, M.D. | |
Xxxxxxx Xxxxxxxx, M.D. | |||
Chief Executive Officer |
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