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EXHIBIT 10.9
THIS NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED,
OR THE SECURITIES LAWS OF ANY STATE IN RELIANCE ON AN EXEMPTION FROM SAID ACT
AND SUCH LAWS, AND THIS NOTE MAY NOT BE SOLD, PLEDGED, TRANSFERRED OR ASSIGNED
IN THE ABSENCE OF SUCH REGISTRATION OR AN OPINION OF COUNSEL, ACCEPTABLE TO THE
BORROWER, STATING THAT THE PROPOSED TRANSFER IS EXEMPT FROM REGISTRATION.
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PROMISSORY NOTE
$425,000 May 15, 1996
Oklahoma City, Oklahoma
1. Xxxxxxxx's Promise To Pay. FOR VALUE RECEIVED, the
undersigned Xxxxxxxx promises to pay OKLAHOMA MEDICAL RESEARCH FOUNDATION, an
Oklahoma not-for-profit corporation ("Lender"), or order, at 825 N.E. 13th
Street, Oklahoma City, Oklahoma 74104, or such other place as Lender may
designate in writing, the principal sum of Four Hundred Twenty-Five Thousand
Dollars ($425,000), together with interest on the unpaid principal balance as
hereinafter set forth.
2. Interest. For a period of 24 months following the date
hereof, the unpaid principal balance of this Note shall bear no interest.
Thereafter, until fully paid, the unpaid principal balance of this Note shall
bear interest at a rate per annum of eight percent (8%) ("Per Annum Interest
Rate"). Any principal or interest not paid when due shall bear interest until
paid at a rate of five percent (5%) per annum greater than the Per Annum
Interest Rate. For purposes of computing interest and determining the date
principal and interest payments are received, all payments owing under this
Note will not be deemed to have been made until such payments are received by
Lender in collected funds. Interest will be calculated on the basis of the
actual number of days elapsed over a year of 360 days.
3. Payments.
3.1. Payments shall be made on May 15, August 15, November
15, and February 15 of each year (each such date constituting a "Quarterly
Payment Date"), until the principal and interest under this Note shall be paid
in full. No payments shall be due prior to May 15, 1998. Commencing on that
date, and thereafter on each Quarterly Payment Date, the Borrower shall pay
interest on the unpaid principal at the Per Annum Interest Rate. Commencing on
May 15, 1999, and thereafter on each Quarterly Payment Date, the Borrower
shall, in addition to the foregoing interest payment, make a principal payment
of Twenty-Five Thousand Dollars.
3.2. In the event any payment due under this Note becomes
due on a day which is not a regular business day of Lender, the due date of
such payment shall be extended to the next succeeding business day of Lender.
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3.3. Notwithstanding any provisions herein, the total
liability for payments in the nature of interest shall not exceed the limits
now imposed by the usury laws of the State of Oklahoma, and no holder of this
Note shall ever be entitled to receive, collect, or apply, as interest on the
indebtedness, any amount in excess of the maximum legal rate of interest
permitted to be charged by applicable law, and, in the event any holder of this
Note ever receives, collects or applies, as interest, any such excess, such
amount which would be excessive interest shall be applied to the reduction of
the unpaid principal balance of the indebtedness, and if the unpaid principal
balance of the indebtedness is paid in full, any remaining excess shall be
forthwith paid to the Borrower. In determining whether or not the interest
paid or payable under any specific contingency exceeds the highest lawful rate,
the Borrower and any holder hereof shall, to the extent permitted by applicable
laws: (a) characterize any non-principal payments as an expense, fee or premium
rather than as interest; (b) exclude voluntary prepayments and the effect
thereof; and (c) "spread" the total amount of interest throughout the entire
term of the Note.
4. Default. Upon default in any of the terms or conditions of
this Note, at the option of the holder, the entire indebtedness hereby
evidenced shall become due, payable and collectible then or thereafter as the
holder may elect, regardless of the date of maturity hereof. Notice of the
exercise of such option is hereby expressly waived.
5. Waivers and Governing Law. No waiver by holder of any payment
or other right under this Note or any related agreement or documentation shall
operate as a waiver of any other payment or right. This Note and the
obligations evidenced hereby are to be construed and governed by the laws of
the State of Oklahoma.
6. Collection Costs. The Borrower agrees that if, and as often
as, this Note is placed in the hands of an attorney for collection or to defend
or enforce any of the holder's rights hereunder, the Borrower will pay to the
holder its reasonable attorney's fees, together with all court costs and other
expenses paid by such holder.
7. Right of Offset. Any indebtedness due from holder hereof to
Borrower or any party hereto including, but without limitation, any deposits or
credit balances due from holder, is pledged to secure payment of this Note and
any other obligation to holder of Borrower, and may at any time while the whole
or any part of such obligation remains unpaid be appropriated, held or applied
toward the payment of this Note or any other obligation to holder of Borrower
or any party hereto.
8. Repayment. This Note may be prepaid, in whole or in part, at
any time without premium or penalty.
9. Miscellaneous.
9.01. Commercial Loan. It is expressly stipulated and
agreed that the loan evidenced by this Note is given for an actual lending
transaction for business purposes and not for personal, residential or
agricultural purposes.
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9.02. Notices. All notices shall be given at the following
addresses:
If to the Borrower: ZymeTx, Inc.
825 N.E. 13th Street
Oklahoma City, OK 73104
If to the Lender: Oklahoma Medical Research Foundation
000 X.X. 13th Street
Oklahoma City, OK 73104
Either party may change its address for notice purposes upon giving
ten (10) days prior notice in accordance with this section. All notices given
shall be in writing and shall be considered properly given if mailed by first
class United States Mail, postage prepaid, registered or certified with return
receipt requested, or by delivering the notice in person to the intended
addressee. Any notice mailed shall be effective upon its deposit in the custody
of the U. S. Postal Service; notice personally delivered shall be effective
upon receipt.
9.03. Captions. All caption headings are for convenience
only and shall not be interpreted to enlarge or restrict the provisions of this
Note.
ZYMETX, INC.
By: /s/ XXXXX X. XXXXXXXXXX
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Xxxxx X. Xxxxxxxxxx, President
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