EXHIBIT 10.37
-------------
PROMISSORY NOTE
---------------
$200,000 November 19, 1999
1. AMOUNT; MATURITY. FOR VALUE RECEIVED, the undersigned, GENETIC
VECTORS, INC., a Florida corporation (the "Maker"), promises to pay to THE
ORBITER FUND, LTD., a ______________________________ (the "Holder"), the
principal sum of Two-Hundred Thousand Dollars ($200,000), which principal sum
shall mature on January 19, 2000 and shall bear simple interest at the rate set
forth herein.
2. INTEREST. Interest shall accrue as of the date of this Note at the
simple interest rate of twelve percent (12%) per annum which rate shall increase
one percent (1%) on the nineteenth (19th) day of each month that any portion of
this Note remains unpaid commencing on January 19, 2000 up to the maximum amount
permitted by law. All accrued but unpaid interest shall be due and payable on
January 19, 2000.
3. MODE OF PAYMENT. All payments of principal and interest due under
this Note shall be made in legal tender in the United States of America and
delivered to the Holder at or, at the option of the Holder, in such other manner
and at such other place as the Holder shall have designated to the Maker in
writing.
4. SECURITY. The Maker's obligations hereunder are secured by a
security interest granted to the Holder pursuant to a Pledge and Security
Agreement dated as of November 19, 1999, by and between the parties hereto.
5. PREPAYMENT.
----------
(a) This Note may be voluntarily prepaid, without penalty or
premium, in whole or in part, at any time and from time to time. Any prepayment
must include all accrued interest on the principal being prepaid, through the
date of prepayment.
(b) Notwithstanding anything contained herein to the contrary, this
Note shall be mandatorily prepaid in the event that the Maker closes an offering
of its securities, whether through one or more private placements or secondary
public offerings, in which the Maker raises gross proceeds from such transaction
or transactions of at least $1,500,000.
6. ACCELERATION UPON EVENT OF DEFAULT. This Note may be accelerated at
the option of the Holder, upon the occurrence of any event of default as
described below:
(a) any default, whether in whole or in part, shall occur in the
payment to the Holder of principal, interest or other item comprising the Note
as and when due which shall continue for a period of ten (10) days after the
receipt of written notice thereof by the Maker;
(b) the Maker shall (1) make a general assignment for the benefit of
its creditors, (2) apply for or consent to the appointment of a receiver,
trustee, assignee, custodian sequestrator, liquidator or similar official for
itself or any of its assets and properties, (3) commence a voluntary case for
relief as a debtor under the United States Bankruptcy Code, (4) 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, (5) file or otherwise submit any answer or
other document admitting or failing to contest the material allegations of a
petition or other document filed or otherwise submitted against it in any
2
proceeding under any such applicable law, or (6) be adjudicated a bankrupt or
insolvent by a court of competent jurisdiction; or
(c) any case, proceeding or other action shall be commenced against
the Maker for the purpose of effecting, or an order, judgment or decree shall be
entered by any court of competent jurisdiction approving (in whole or in part)
anything specified in Section 6(b) hereof, or any receiver, trustee, assignee,
custodian, sequestrator, liquidator or other official shall be appointed with
respect to the Maker, or shall be appointed to take or shall otherwise acquire
possession or control of all or a substantial part of the assets and properties
of the Maker, and any of the foregoing shall continue unstayed and in effect for
any period of ninety (90) days.
7. DELAY IN EXERCISE OF RIGHTS. No delay on the part of the Holder in
exercising any of its options, powers or rights nor any partial or single
exercise of its options, power or rights shall constitute a waiver thereof or of
any other option, power or right, and no waiver on the part of the Holder of any
of its options, powers or rights shall constitute a waiver of any other option,
power or right.
8. WAIVER OF PRESENTMENT. The Maker hereby waives presentment for
payment, dishonor, protest, notice of protest and any demand whatsoever with
respect to this Note.
9. MAXIMUM INTEREST LIMITATIONS. After this Note becomes due, at stated
maturity or on acceleration, any unpaid balance hereof shall thereafter bear
interest until paid at a rate of sixteen percent (16%) simple interest per
annum, but such interest rate shall not exceed at any time the maximum interest
rate allowable under applicable state usury laws.
10. GOVERNING LAW.
(a) This Note and the rights of the parties hereunder shall be
governed by and construed in accordance with the laws of the State of Florida,
without regard to its conflicts of law principles. All parties hereto (1) agree
that any legal suit, action or proceeding arising out of or relating to this
note shall be instituted only in a Federal or state court in Miami-Dade County,
Florida, (2) waive any objection which they may now or hereafter have to the
laying of the venue of any such suit, action or proceeding, including, without
limitation, any objection based on the assertion that such venue is an
inconvenient forum and (3) irrevocably submit to the jurisdiction of such
Federal or state court in Miami-Dade County, Florida in any such suit, action or
proceeding. All parties hereto agree that the mailing of any process in any
suit, action or proceeding. in accordance with the notice provisions of this
Note shall constitute personal service thereof.
(b) THE MAKER HEREBY WAIVES ANY RIGHT TO TRIAL BY JURY IN ANY LEGAL
PROCEEDING RELATED IN ANY WAY TO THIS NOTE.
11. Notices. All notices or other communications required or permitted
to be given pursuant to this Note shall be in writing and shall be considered as
duly given on (a) the date of delivery, if delivered in person or by nationally
recognized overnight delivery service or (b) five (5) days after mailing if
mailed by certified mail, return receipt requested to the party entitled to
receive the same, if to the Holder, at his or its address on the books and
records of the Maker, and if to the Maker, to Genetic Vectors, Inc., 5201 N.W.
00xx Xxxxxx, Xxxxx 000, Xxxxx, Xxxxxxx 00000, Attention: Xxxx X. XxXxxx, Xx.,
with a copy to Xxxxxxxxxxx & Xxxxxxxx LLP, Miami Center - 20th Floor, 000 Xxxxx
Xxxxxxxx Xxxxxxxxx, Xxxxx, Xxxxxxx 00000, Attention: Xxxxxxx X. Xxxxxx, Esq. Any
party may change its address by giving notice to the other party stating its new
3
address. Commencing on the tenth (10th) day after the giving of such notice,
such newly designated address shall be such party's address for the purpose of
all notices or other communications required or permitted to be given pursuant
to this Note. 12. Amendment. This Note shall not be amended without the prior
written consent of the Holder and the Maker.
GENETIC VECTORS, INC.
By:
------------------------------------
Its:
-----------------------------------
4
