EXHIBIT 10.16
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.
$175,000.00 White Plains, New York
February 1, 2007
ORTHOMETRIX, INC., a Delaware corporation (the "Company"), for value
received, promises to pay to THE CHRYSTELE BONMATI TRUST (the "Payee"), the
principal sum of One Hundred Seventy Five Thousand U.S. Dollars ($175,000) on
February 1, 2008 (the "Maturity Date"), except as otherwise provided herein,
together with interest on the outstanding principal amount of this Note at the
rate of twelve percent (12%) per annum. Interest shall be payable monthly on the
last business day of each month, commencing February 28, 2007.
1. Payments and Prepayments.
1.1. Payments and prepayments of principal and interest on this Note shall
be made to Payee at XXXX.
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 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 any financing or series of
related financings, or (ii) the Company sells all or substantially all of 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 and Remedies.
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 days,
or the Company 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;.
the holder of this Note may: (a) by notice to the Maker, declare the
principal of and accrued interest on this Note to be immediately due and payable
and/or (b) pursue any available remedy to collect the payment of interest,
principal or premium, if any, on this Note or to enforce any provision of this
Note. A delay or omission by the holder of this Note in exercising any right or
remedy accruing upon an event of default shall not impair the right or remedy or
constitute a waiver or acquiesce in the event of default. All remedies are
cumulative to the extent permitted by law.
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
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.
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 The undersigned hereby waives presentment, demand for payment, notice
of dishonor, and any and all other notices or demands in connection with the
delivery, acceptance, performance, default or enforcement of this Note, and
hereby consents to any extensions of time, renewals, releases of any party to
this Note, waivers or modifications that may be granted or consented to by the
Payee in respect to the time of payment or any other provision of this Note.
4.3 No course of dealing of Payee or another holder hereof nor any failure
or delay by Payee or any such holder to exercise any right, power, privilege,
remedy or discretion under this Note shall operate as a waiver thereof on that
occasion or any other occasion, and any single or partial exercise of any such
right, power, privilege, remedy or discretion shall not preclude any later
exercise thereof or any exercise of any other right, power, privilege, remedy or
discretion hereunder. No covenant, obligation or other provision of this Note
may be waived, and no consent contemplated hereby may be given, other than in a
writing signed by Payee or another holder waiving such covenant, obligation or
provision or giving such consent.
4.4 Maker will pay on demand all reasonable costs and expenses (including
attorneys' reasonable fees and expenses) incurred by Xxxxx in connection with
the enforcement of this Note and the preservation of Xxxxx's rights hereunder.
4.5. Payee may not assign or transfer this Note in any manner whatsoever
without the prior written consent of the Maker. Notwithstanding any other
provision hereof, Payee or any other holder of this Note may assign or transfer
this Note without the consent of Maker or any other person to any affiliate of
such holder, including without limitation to any stockholder, partner, member or
other owner of such holder.
4.6 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,
/s/ Xxxx Xxxxxx
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Name: Xxxx Xxxxxx
Title: Chief Financial Officer
