EXHIBIT 10.8
THIS NOTE HAS BEEN ACQUIRED FOR INVESTMENT
AND HAS NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933 OR THE SECURITIES
LAWS OF ANY STATE. THIS NOTE MAY NOT BE
SOLD OR TRANSFERRED IN THE ABSENCE OF SUCH
REGISTRATION OR AN OPINION OF COUNSEL
SATISFACTORY TO THE ISSUER THAT SUCH
REGISTRATION IS NOT REQUIRED BY SAID ACT
OR STATE LAWS,
ORTHOMETRIX, INC.
$50,000.00 White Plains, New York
October 18, 2004
ORTHOMETRIX, INC., a Delaware corporation (the "Company"), for
value received, promises to pay to XXXXXX XXXXXXXX (the "Payee"), the principal
sum of Fifty Thousand U.S. Dollars ($50,000) on October 18, 2005 (the "Maturity
Date"), except as otherwise provided herein, together with interest on the
outstanding principal amount of this Note at the rate of prime (as published
from time to time by XX Xxxxxx Xxxxx) plus one per annum, except as otherwise
provided herein. Interest shall be payable quarterly on the last business day of
each March, June, September and December, commencing December 31, 2004.
1. Payments and Prepayments.
1.1 Payments and prepayments of principal and interest on this
Note shall be made to Payee at Premium Point, New Rochelle, NY 10801.
1.2 Payments and prepayments of principal and interest on this
Note shall be made in lawful money of the United States of America.
1.3 If any payment on this Note becomes due and payable on a
Saturday, Sunday or other day an which commercial banks in New York City are
authorized or required by law to close, the maturity thereof shall be extended
to the next succeeding business day, and, with respect to payments of principal,
interest thereon shall be payable during such extension at the then applicable
rate.
1.4 The Company shall be obligated to prepay the outstanding
principal amount of this Note within ten (10) days after such time as (i) the
Company receives net proceeds
of at least $5,000,000 from an equity financing, or (ii) the Company sells
substantially all its assets. The Company shall have the right at any time and
from time to time to prepay this Note in whole or in part, together with
interest on the amount prepaid to the date of prepayment, without penalty or
premium. Upon payment of part of the principal amount of this Note, the Company
may require the holder to present this Note for notation of such payment and, if
this Note is paid in full, require the holder to surrender this Note.
1.5 Upon payment in full of all outstanding principal and
interest due under this Note, the Company's obligations in respect of payment of
this Note shall terminate and the holder shall return it to the Company.
2. Events of Default. In the event that:
(a) the Company defaults for more than five business days in
making any payment required to be made on this Note; or
(b) the Company hereafter makes an assignment for the
benefit of creditors, or files a petition in bankruptcy as
to itself, is adjudicated insolvent or bankrupt, petitions
or applies to any tribunal for the appointment of any
receiver of or any trustee for the Company or any
substantial part of its property under any bankruptcy,
reorganization, arrangement, readjustment of debt,
dissolution or liquidation law or statute of any
jurisdiction, whether now or hereafter in effect; or if
there is hereafter commenced against the Company any such
proceeding and an order approving the petition is entered or
such proceeding remains undismissed for a period of 60 day,
or the Company or its general partner by any act or omission
to act indicates its consent to or approval of or
acquiescence in any such proceeding or the appointment of
any receiver of, or trustee for, the Company or any
substantial part of its property, or suffers any such
receivership or trusteeship to continue undischarged for a
period of 60 days;
then, and in any such event, and at any time thereafter, if such event shall
then be continuing, the holder of this Note may, by written notice to the
Company, declare the Note due and payable, whereupon the same shall be due and
payable without presentment, demand, protest or other notice of any kind, all of
which are hereby expressly waived.
3. Investment Representation.
3.1 The Payee hereby acknowledges that the Note is not being
registered (i) under the Securities Act of 1933, as amended (the "Act"), on the
ground that the issuance of the Note is exempt from registration under Section
4(2) of the Act as not involving any public offering or (ii) under any
applicable state securities law because the issuance of the Note does not
involve any public offering; and that the Company's reliance on the Section 4(2)
exemption of the
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Act and under applicable state securities laws is predicated in part on the
representations hereby made to the Company by the Payee that it is acquiring the
Note for investment for its own account, with no present intention of dividing
its participation with others or reselling or otherwise distributing the same,
subject, nevertheless, to any requirement of law that the disposition of its
property shall at all times be within its control.
3.2 The Payee hereby agrees that it will not sell or transfer all
or any part of this Note unless and until it shall first have given notice to
the Company describing such sale or transfer and furnished to the Company an
opinion, reasonably satisfactory to counsel for the Company, of counsel skilled
in securities matters (selected by the holder and reasonably satisfactory to the
Company) to the effect that the proposed sale or transfer may be made without
registration under the Act and without registration or qualification under any
state.
3.3 The Company may refuse to recognize a transfer of this Note
on its books should a holder attempt to transfer this Note otherwise than in
compliance with this Section 3.
4. Miscellaneous.
4.1 Upon receipt of evidence reasonably satisfactory to the
Company of the loss, theft, destruction or mutilation of this Note and of a
letter of indemnity reasonably satisfactory to the Company, and upon
reimbursement to the Company of all reasonable expenses incident thereto, and
upon surrender or cancellation of the Note, if mutilated, the Company will make
and deliver a new Note of like tenor in lieu of such lost, stolen, destroyed or
mutilated Note.
4.2 This Note and the rights and obligations of the Company and
each holder hereunder shall be construed in accordance with and be governed by
the laws of the State of New York.
IN WITNESS WHEREOF, the Company has executed this Note as of the
day and year first above written.
ORTHOMETRIX, INC,
By: /s/ Xxxxxxx Xxxxxxx
--------------------------------
Name: Xxxxxxx Xxxxxxx
Title: President
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