EXHIBIT 10.16.1
THIS NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933. THIS NOTE
MAY NOT BE SOLD OR OFFERED FOR SALE, TRANSFERRED, HYPOTHECATED OR OTHERWISE
ASSIGNED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT WITH RESPECT
THERETO UNDER SUCH ACT OR AN OPINION OF COUNSEL REASONABLY ACCEPTABLE TO THE
COMPANY THAT AN EXEMPTION FROM REGISTRATION FOR SUCH SALE, OFFER, TRANSFER,
HYPOTHECATION OR OTHER ASSIGNMENT IS AVAILABLE UNDER SUCH ACT.
MEDIWARE INFORMATION SYSTEMS, INC.
(FORMERLY HEMOCARE, INC.)
12% Secured Note Due _________________
No. R New York, New York
$ -------------------
MEDIWARE INFORMATION SYSTEMS, INC., a New York corporation
(the "Company"), for value received, hereby promises to pay to
___________________, or registered assigns, the principal amount of $__________
on _________________, with interest (computed on the basis of a 360-day year of
twelve 30-day months) on the unpaid balance of such principal amount at the rate
of 12.00% per annum from the date hereof, payable upon maturity or earlier
prepayment of principal. Payments of principal and interest on this Note shall
be made in lawful money of the United States of America at the principal office
of the Company located at 0000 Xxx Xxxx Xxxxxxx Xxxx, Xxxxxxxx, Xxx Xxxx
00000-0000,Xxx Xxxx, Xxx Xxxx 00000, or at such other office or agency in the
State of New York as the Company shall have designated by written notice to the
holder of this Note as provided in the Subscription Agreement referred to below.
This Note is being issued pursuant to a Subscription Agreement
(the "Subscription Agreement"), dated as of _________ _______, between the
Company and the holder and is one of a group of identical notes issued in an
offering to sell notes having an aggregate principal amount of up to $750,000
made pursuant to identical Subscription Agreements (the "Offering"). The holder
of this Note is entitled to the benefits of the Subscription Agreement and may
enforce the agreements of the Company contained therein and exercise the
remedies provided for thereby or otherwise available in respect thereof.
This Note is a registered Note and is transferable only upon
surrender of this Note for registration of transfer, duly endorsed, or
accompanied by a written instrument of transfer duly executed, by the holder
hereof or his attorney duly authorized in writing. References in this Note to a
"holder" shall mean the person in whose name this Note is at the time registered
on the register kept by the Company and the Company may treat such person as the
owner of this Note for the purpose of receiving payment and for all other
purposes, and the Company shall not be affected by any notice to the contrary.
This Note is subject to optional prepayment by the Company at
any time, without a premium, in whole or in part in denominations of $10,000.
Any prepayment shall be applied first to interest and then to principal.
This Note must be prepaid in full within thirty-one days after
the closing of the earlier to occur of (a) a prospective offering of rights to
purchase common stock of the Company, par value $.10 a share, for $.50 a share
resulting in at least $1,000,000 proceeds to the Company or (b) a sale of all or
substantially all of the assets of the Company or a merger of consolidation of
the Company in which the Company is not the surviving corporation.
This Note is one of the Notes secured by a security interest
in the present and future accounts of the Company, whether now owned or
hereafter acquired. The Company undertakes to file appropriate financing
statements in order to perfect such security interests.
At no time shall the interest rate payable on this Note,
together with all other amounts payable hereunder or in connection herewith, to
the extent same are construed to constitute interest, exceed the maximum rate of
interest permitted by law. If at any time the applicable rate of interest
computed in the manner provided in this Note, together with all fees and charges
as provided for herein, contracted for, charged, received, taken or reserved by
the holder in connection with the loan evidenced by this Note which are treated
as interest under applicable law exceeds the maximum lawful rate (the "Maximum
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Rate") which may be contracted for, charged, taken, received or reserved by said
holder in accordance with applicable law, taking into account all charges made
in connection with the loan evidenced by this Note which are treated as interest
under applicable law, the rate of interest payable hereunder, together with all
such charges, shall be limited to the Maximum Rate; provided, however, that any
subsequent reduction in all such charges shall not reduce the rate of interest
earned hereunder, together with all charges, and shall equal the total amount of
interest which would have accrued if there had been no Maximum Rate. It is
expressly stipulated and agreed to be the intent of the Company and holder at
all times to comply with the applicable state or other law governing the Maximum
Rate or amount of interest payable on the loan evidenced by this Note (or
applicable United States federal law to the extent that it permits any lender to
contract for, charge, take, reserve or receive a greater amount of interest than
under applicable state law). If and for so long as any applicable law is ever
judicially interpreted so as to render usurious any amount called for under this
Note, or contracted for, charged, taken, reserved or received with respect to
the loan evidenced by this Note or if any prepayment by the Company results in
the Company having paid any interest in excess of that permitted by applicable
law, then it is the Company's and the holder's express intent that all excess
amounts theretofore collected by the holder be credited to the principal balance
of the loan evidenced by this Note (or, if all sums owing hereunder have been or
would thereby be paid in full, refunded to the Company) and the provisions of
this Note immediately be deemed reformed and the amounts thereafter collectible
hereunder reduced, without the necessity of the execution of any new document,
so as to comply with such applicable law and also to permit the recovery of the
fullest amount otherwise called for hereunder.
1. Xxxxxx's Acknowledgments and Agreements. By acceptance of
this Note, the holder of this Note acknowledges and agrees (in addition to and
not in limitation of any agreements and acknowledgments set forth in the
Subscription Agreement relating to this Note) as follows:
(a) No Assurances of Repayment. The holder
acknowledges that he has been advised by the Company that (i) the Company
anticipates the need for capital additional to the proceeds of the Notes in
order to fund its operations and to repay the sums to become due under this Note
and (ii) that there can be no assurance that the Company will be able to obtain
the additional capital required to fund its operations and to repay this Note,
whether by completion of a public offering, through any other offering of its
securities or otherwise. The holder acknowledges, represents and warrants that
he has purchased this Note other than in reliance on any assurance that the
Company will be able to obtain such additional capital.
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(b) Restrictions on Transfer. The holder acknowl-
edges that he has been advised by the Company that this Note has not been
registered under the Securities Act of 1933 (the "Securities Act"), that the
Note is being issued on the basis of the statutory exemption provided by section
4(2) of the Securities Act and/or Regulation D promulgated thereunder relating
to transactions by an issuer not involving any public offering, and that the
Company's reliance thereon is based in part upon the representations made by the
holder in the Subscription Agreement. The holder acknowledges that he has been
informed by the Company of, or is otherwise familiar with, the nature of the
limitations imposed by the Securities Act and the rules and regulations
thereunder on the transfer of securities. In particular, the holder agrees that
no sale, assignment or transfer of the Note shall be valid or effective, and the
Company shall not be required to give any effect to any such sale, assignment or
transfer, unless (i) the sale, assignment or transfer of the Note is registered
under the Securities Act, it being understood that the Note is not currently
registered for sale and that the Company has no obligation or intention to so
register the Note, or (ii) the Note is sold, assigned or transferred in
accordance with all the requirements and limitations of Rule 144 under the
Securities Act, it being understood that Rule 144 is not available at the
present time for the sale of the Note and that there can be no assurance that
Rule 144 sales will be available at any time in the future, or (iii) such sale,
assignment, or transfer is otherwise exempt from registration under the
Securities Act. The holder represents and warrants that this Note has been
acquired for his own account for investment and not with a view to the sale or
distribution thereof or the granting of any participation therein, and that he
has no present intention of distributing or selling to others any of such
interest or granting any participation therein.
2. Miscellaneous.
2.1. All the covenants and agreements made by the
Company in this Note shall bind its successors and assigns.
2.2. No recourse shall be had for the payment of
the principal, interest or premium, if any, on this Note or for any claim based
hereon or otherwise in any manner in respect hereof, against any incorporator,
stockholder, officer or director, past, present or future, of the Company or of
any predecessor or successor corporation, whether by virtue of any
constitutional provision or statute or rule of law, or by the enforcement of any
assessment or penalty or in any other manner, all such liability being expressly
waived and released by the acceptance hereof and as part of the consideration
for the issue hereof.
2.3. No course of dealing between the Company and
the holder hereof shall operate as a waiver of any right of any
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holder hereof, and no delay on the part of the holder in exercising any right
hereunder shall so operate.
2.4. This Note may be amended only by a written
instrument executed by the Company and the holder hereof. Any amendment shall be
endorsed upon this Note, and all future holders shall be bound thereby.
2.5. All communications provided for herein shall
be sent, except as may be otherwise specifically provided, by registered or
certified mail: if to the holder of this Note, to the address shown on the books
of the Company; and if to the Company, to Mediware Information Systems, Inc.,
0000 Xxx Xxxx Xxxxxxx Xxxx, Xxxxxxxx, Xxx Xxxx 00000-0000, attention of the
President, or to such other address as the Company may advise the holder of this
Note in writing. Notice shall be deemed given three (3) business days after so
mailed.
2.6. In the event that this Note is placed in the
hands of an attorney for collection, or in the event that any action be
instituted on this Note, or any action is taken with respect to a default
hereunder, the holder hereof shall be entitled to the payment by the maker and
any other party liable for the obligations of the maker hereunder of all
expenses in connection therewith, including without limitation, reasonable
attorneys' fees.
2.7. The headings of the Sections of this Note are
inserted for convenience only and shall not be deemed to constitute a part of
this Note.
2.8. This Note is made and delivered in New York, New
York, and shall be governed by the laws of the State of New York.
IN WITNESS WHEREOF, Mediware Information Systems, Inc. has
caused this Note to be executed in its corporate name by its President.
MEDIWARE INFORMATION SYSTEMS, INC.
By--------------------------------
Xxxx X. Xxxxxxxx, President
ATTEST:
--------------------------------
, Secretary
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GUARANTY
--------
FOR VALUE RECEIVED, Digimedics Corporation, a California
corporation ("Digimedics") which is a wholly-owned subsidiary of the Company,
hereby guarantees the due and punctual payment of all sums which are or may
become due and owing by the Company to the Holder under the foregoing Note, and
hereby grants the Holder a security interest in the present and future accounts
of Digimedics, whether now existing or hereafter acquired, to secure its
obligations to Holder under this Guaranty. Digimedics undertakes to file
appropriate financing statements in order to perfect such security interests.
IN WITNESS WHEREOF, Digimedics Corporation has caused this
Guaranty to be executed with its corporate name by its President and attested to
by its Secretary, and its seal to be affixed hereto.
Digimedics Corporation
By:---------------------------
Title: President
ATTEST:
----------------------------
, Secretary
[SEAL]
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