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EXHIBIT 10.9
THIS SECURITY HAS BEEN ACQUIRED FOR INVESTMENT ONLY AND NOT WITH A VIEW TO, OR
FOR SALE IN CONNECTION WITH ANY DISTRIBUTION TR M OF WITHIN THE MEANING OF THE
SECURITIES ACT OF 1933, AS AMENDED. IT MAY BE SOLD, TRANSFERRED OR HYPOTHECATED
ONLY IN ACCORDANCE WITH ACT AND RULES PROMULGATED THEREUNDER.
PROMISSORY NOTE
$250,000.00 Date: November 4, 1996
Interest Rate: 14% Due Date: November 3, 1997
FOR VALUE RECEIVED, Saigene Corporation ("Borrower") promises to pay to
the order of Xxxxx Xxxxxxxxxxx ("Lender"), at 000 Xxxxx Xxxx, Xxxxx Xxx
Xxxxxxxxx, Xxxxxxxxxx 00000, or such other place as Lender may designate in
writing, in lawful money of the United States of America, the principal sum of
Two Hundred Fifty Thousand Dollars ($250,000.00), with interest thereon from the
date hereof at the rate hereafter set forth.
1. Interest Rate. Interest shall accrue on the principal amount
outstanding from time to time at fourteen percent (14%) per annum, compounded
annually. Interest shall be calculated using a 360 day year and 30 day months.
2. Due Date. All principal and accrued interest shall be due and
payable on the earlier of (a) the first business day following receipt by the
borrower of funds representing the net proceeds from an initial public offering,
or (b) November 3, 1997. Xxxxxxxx may prepay any sums due hereunder, at any time
and in any amount, without penalty.
3. Events of Default. The occurrence of any of the following shall
constitute a default under this Note (an "Event of Default') and shall give
Lender the right, at his sole discretion, without notice or demand of any kind
to do any one or more of the +following: (1) make all sums of interest and
principal and any other sums owing under this Note immediately due and payable;
and (2) exercise any other right or remedy provided by contract or applicable
law:
(a) Borrower shall fail to make any payment of principal or interest
when due under this Note or to pay any fees or other charges within thirty (30)
days after the due date, or Borrower shall fail to provide Lender with, or to
perform any obligation under, any contract, instrument, addenda or document
executed in connection with this Note;
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(b) A petition or action for relief shall be f iled by or against
Borrower under the Bankruptcy Reform Act, Title 11 of the U.S. Code in effect
from time to time, or under any other law relating to bankruptcy, insolvency,
reorganization, moratorium, creditor composition, arrangement or other relief
for debtors; the appointment of a receiver, trustee, custodian or liquidator of
or for any part of the assets or property of Borrower; Borrower shall make a
general assignment for the benefit of creditors; Borrower shall fail to pay its
debts generally as they become due; or the death, incapacity, insolvency,
dissolution or termination of the business of Borrower;
(c) Any governmental or regulatory authority shall take any action, or
any other event shall occur any of which, in the good faith judgment of Xxxxxx,
might have a material adverse effect on the financial condition or business or
Borrower;
(d) Any judgments shall be entered against Borrower, or any
involuntary lien(s) of any kind or character shall attach to any assets or
property of Borrower, any of which, in the judgment of Xxxxxx, might have a
material adverse effect on the financial conditions or business of Borrower;
(e) Any material adverse change shall occur in the financial condition
or business of Borrower; or
4. Waiver. No f ailure or delay on the part of Lender in exercising
any power, right or privilege under this Note or under any Loan Document shall
operate as a waiver thereof, and no waiver shall preclude the exercise of any
other power, right or privilege. Borrower hereby waives presentment, demand,
protest, or notice of applicable statute of limitations.
5. Miscellaneous. Wherever used in this Note, the term "month" shall
mean a calendar month. This Note shall be governed by and construed in
accordance with the laws of the State of California. This Note shall be
assignable by Xxxxxx and any future holder hereof, in whole or in part. All sums
due hereunder shall be payable in lawful money of the United States of America.
In the event of any legal proceeding concerning the subject matter of this
promissory note, the prevailing party shall be entitled to an award of
reasonable attorneys, fees and costs.
6. Entire Agreement. This Promissory Note, together with the Option
Agreement and Investor Representation Letter of even date, constitutes the
entire agreement of the parties. Any and all representations, promises and prior
or contemporaneous understandings between the parties with respect to the
subject matter of this Agreement are merged into and expressed in this
Promissory Note, the Option Agreement and the Investor Representation Letter.
Any and all other agreements, representations or warranties with respect to the
subject matter of this Agreement are hereby canceled. This Agreement may be
amended, modified or supplemented only by an instrument in writing signed by the
parties.
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Executed this _______ day of November 1996, at Bothell, Washington.
BORROWER
SAIGENE CORPORATION,
a Delaware Corporation
By:_________________________________
Xxxxxx X. Xxxx
Its: Chief Executive Officer
Acknowledgment of, and agreement to, terms and conditions:
LENDER
Dated: November ___, 1996 ____________________________________
Xxxxx Xxxxxxxxxxx
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