Exhibit 10.25
THIS NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED
(THE "ACT"). NO INTEREST IN THIS NOTE MAY BE OFFERED OR SOLD EXCEPT PURSUANT TO
(i) AN EFFECTIVE REGISTRATION STATEMENT UNDER THE ACT, (ii) TO THE EXTENT
APPLICABLE, PURSUANT TO RULE 144 UNDER THE ACT (OR ANY SIMILAR RULE UNDER THE
ACT), OR (iii) AN EXEMPTION FROM REGISTRATION UNDER THE ACT WHERE THE HOLDER HAS
FURNISHED TO THE COMPANY AN OPINION OF ITS COUNSEL THAT AN EXEMPTION FROM
REGISTRATION UNDER THE ACT IS AVAILABLE.
INFORMEDIX ACQUISITION CORPORATION, INC.
12% PROMISSORY NOTE
$15,000 January 30, 2003
FOR VALUE RECEIVED, the undersigned, Informedix Acquisition
Corporation., a Delaware corporation ("Payor"), having its executive office and
principal place of business at 0000 Xxxxxxx Xxxxx, Xxxxxxxxx, Xxxxxxxx
00000-0000 hereby promises to pay to Xxxx Xxxxxxxxx ("Payee"), having an address
xx000 Xxxx 00xx Xxxxxx, Xxxxx 00 Xxxxx, Xxx Xxxx, XX 00000-0000, at Xxxxx's
address set forth above (or at such other place as Payee may from time to time
hereafter direct by notice in writing to Payor), the principal sum of FIFTEEN
THOUSAND DOLLARS ($15,000), in such coin or currency of the United States of
America as at the time shall be legal tender for the payment of public and
private debts, on the first to occur of the following dates: (i): JULY 31, 2003,
(the "Maturity Date"); (ii) the date on which the outstanding principal amount
of this Note is prepaid in full as hereinafter permitted(the "Prepayment Date");
(iii) the date following the date of this promissory note on which a debt or
equity financing of $750,000 or more is closed (the "Financing Date"); and (iv)
any other date on which any principal amount of, or accrued unpaid interest on,
this Note is declared to be, or becomes, due and payable pursuant to its terms
prior to the Maturity Date (the "Acceleration Date"). .
Interest And Payment.
1.1. The principal amount of this Note outstanding from time
to time shall bear simple interest at the annual rate (the "Note Rate") of
twelve percent (12%) from the date hereof through the earliest to occur of (i)
the Maturity Date; (ii) the Prepayment Date; (iii) the Acceleration Date; and
(iv) the Financing Date.
1.2. Interest accrued on this Note shall be payable not later
than, on the earliest to occur of (i) the Maturity Date; (ii) the Prepayment
Date; (iii) the Acceleration Date; and (iv) the Financing Date.
1.3. All payments made by the Payor on this Note shall be
applied first to the payment of accrued unpaid interest on this Note and then to
the reduction of the unpaid principal balance of this Note.
1.4. If payment of the outstanding principal amount this Note,
together with accrued unpaid interest thereon at the Note Rate, is not made on
the earliest to occur of (i) the Maturity Date, (ii) the Prepayment Date,(iii)
the Acceleration Date, and (iv) the Investment Date, then interest shall accrue
on the outstanding principal amount due under this Note and on any unpaid
accrued interest due on this Note from and after such date of default to the
date of the payment in full of such amounts (including from and after the date
of the entry of judgment in favor of Payee in an action to collect this Note) at
an annual rate equal to the lesser of 12% or the maximum rate of interest
permitted by applicable law (the "Maximum Rate").
1.5. In no event shall Payee be entitled to receive interest,
however characterized and including other consideration received in connection
with this Note, at an effective rate in excess of the Maximum Rate. In the event
that a court of competent jurisdiction determines that such amounts paid or
agreed to be paid by Payor in connection with this Note causes the effective
interest rate on this Note to exceed the Maximum Rate, such interest or other
consideration shall automatically be reduced to a rate which results in an
effective interest rate under this Note equal to the Maximum Rate over the term
hereof, and, in such event, any amounts received by Payee deemed to constitute
excessive interest shall be applied first to the payment of accrued unpaid
interest on this Note and then to the reduction of the unpaid principal balance
of this Note.
1.6. In the event that the date for the payment of any amount
payable under this Note falls due on a Saturday, Sunday or public holiday under
the laws of the State of New York, the time for payment of such amount shall be
extended to the next succeeding business day and interest at the Note Rate shall
continue to accrue on any principal amount so effected until the payment thereof
on such extended due date.
2. Replacement Of Note.
2.1. In the event that this Note is mutilated, destroyed, lost
or stolen, Payor shall, at its sole expense, execute, register and deliver a new
Note, in exchange and substitution for this Note, if mutilated, or in lieu of
and substitution for this Note, if destroyed, lost or stolen. In the case of
destruction, loss or theft, Payee shall furnish to Payor indemnity reasonably
satisfactory to Payor, and in any such case, and in the case of mutilation,
Payee shall also furnish to Payor evidence to its reasonable satisfaction of the
mutilation, destruction, loss or theft of this Note and of the ownership
thereof. Any replacement Note so issued shall be in the same outstanding
principal amount as this Note and dated the date to which interest shall have
been paid on this Note or, if no interest shall have yet been paid, dated the
date of this Note.
2.2. Every Note issued pursuant to the provisions of Section
2.1 above in substitution for this Note shall constitute an additional
contractual obligation of the Payor, whether or not this Note shall be found at
any time or be enforceable by anyone.
3. Prepayment. The principal amount of this Note may be prepaid in
whole at any time, or in part from time to time, without penalty or premium,
together with interest thereon accrued through the Prepayment Date. Each partial
prepayment of this Note shall first be applied to interest accrued through the
Prepayment Date and then to principal.
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4. Covenants of Payor.
(a) Payor covenants and agrees that, so long as this
Note remains outstanding and unpaid, in whole or in part:
4.1. Payor will not sell, transfer or in any other manner
alienate or dispose of a material part of its assets;
4.2. Payor will not make any loan to any person who is or
becomes a shareholder or executive employee of Payor, other than for reasonable
advances for expenses in the ordinary course of business;
4.3. Payor will promptly pay and discharge all lawful taxes,
assessments and governmental charges or levies imposed upon it, its income and
profits, or any of its property, before the same shall become in default, as
well as all lawful claims for labor, materials and supplies which, if unpaid,
might become a lien or charge upon such properties or any part thereof;
provided, however, that Payor or such subsidiary shall not be required to pay
and discharge any such tax, assessment, charge, levy or claim so long as the
validity thereof shall be contested in good faith by appropriate proceedings and
Payor or such subsidiary, as the case may be, shall set aside on its books
adequate reserves with respect to any such tax, assessment, charge, levy or
claim so contested;
4.4. Payor will do or cause to be done all things necessary to
preserve and keep in full force and effect its corporate existence, rights and
franchises and substantially comply with all laws applicable to Payor as its
counsel may advise;
4.5. Payor will at all times maintain, preserve, protect and
keep its property used or useful in the conduct of its business in good repair,
working order and condition (except for the effects of reasonable wear and tear
in the ordinary course of business) and will, from time to time, make all
necessary and proper repairs, renewals, replacements, betterments and
improvements thereto;
4.6. Payor will keep adequately insured, by financially sound
reputable insurers, all property of a character usually insured by similar
corporations and carry such other insurance as is usually carried by similar
corporations;
4.7. Payor will, promptly following the occurrence of an Event
of Default or of any condition or event which, with the giving of notice or the
lapse of time or both, would constitute an Event of Default, furnish a statement
of Xxxxx's Chief Executive Officer or Chief Financial Officer to Payee setting
forth the details of such Event of Default or condition or event and the action
which Payor intends to take with respect thereto;
4.8. Payor will, and will cause each of its subsidiaries to,
at all times maintain books of account in which all of its financial
transactions are duly recorded in conformance with generally accepted accounting
principles; and
4.9. Payor will not purchase or otherwise redeem any Common
Stock; nor issue any Common Stock except pursuant to a public offering of the
Payor's Common Stock.
4.10. Payor will apply the proceeds of this loan only to make
the payments specified in Schedule A hereto.
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(b) Notwithstanding any provision of Article 4(a),
Payor may merge with or become a wholly-owned subsidiary of
Hunapu, Inc., a Nevada Corporation or any other publicly
traded corporation. In addition Payor may secure additional
debt or equity financing of up to $750,000.,
Events of Default. If any of the following events (each an "Event of Default")
occurs:
4.11. The dissolution of Payor or any vote in favor thereof by
the board of directors and shareholders of Payor; or
4.12. Payor makes an assignment for the benefit of creditors,
or files with a court of competent jurisdiction an application for appointment
of a receiver or similar official with respect to it or any substantial part of
its assets, or Payor files a petition seeking relief under any provision of the
Federal Bankruptcy Code or any other federal or state statute now or hereafter
in effect affording relief to debtors, or any such application or petition is
filed against Payor, which application or petition is not dismissed or withdrawn
within sixty (60) days from the date of its filing; or
4.13. Payor fails to pay the principal amount, or interest on,
or any other amount payable under, this Note as and when the same becomes due
and payable; or
4.14. Xxxxx admits in writing its inability to pay its debts
as they mature; or
4.15. Payor sells all or substantially all of its assets or
merges or is consolidated with or into another corporation; other than a merger
with or into a publicly traded corporation, or
4.16. A proceeding is commenced to foreclose a security
interest or lien in any property or assets of Payor as a result of a default in
the payment or performance of any debt (in excess of $30,000 and secured by such
property or assets) of Payor or of any subsidiary of Payor; or
4.17. A final judgment for the payment of money in excess of
$30,000 is entered against Payor by a court of competent jurisdiction, and such
judgment is not discharged (nor the discharge thereof duly provided for) in
accordance with its terms, nor a stay of execution thereof procured, within
thirty (30) days after the date such judgment is entered, and, within such
period (or such longer period during which execution of such judgment is
effectively stayed), an appeal therefrom has not been prosecuted and the
execution thereof caused to be stayed during such appeal; or
4.18. An attachment or garnishment is levied against the
assets or properties of Payor or any subsidiary of Payor involving an amount in
excess of $30,000 and such levy is not vacated, bonded or otherwise terminated
within thirty (30) days after the date of its effectiveness; or
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4.19. Payor defaults in the due observance or performance of
any covenant, condition or agreement on the part of Payor to be observed or
performed pursuant to the terms of this Note (other than the default specified
in Section 5.3 above) and such default continues uncured for a period of thirty
(30) days; or
4.20. Payor defaults in the payment (regardless of amount)
when due of the principal of, interest on, or any other liability on account of,
any indebtedness of Payor having a face or principal amount in excess of
$30,000, or a default occurs in the performance or observance by Payor of any
covenant or condition (other than for the payment of money) contained in any
note or agreement evidencing or pertaining to any such indebtedness, which
causes the maturity of such indebtedness to be accelerated or permits the holder
or holders of such indebtedness to declare the same to be due prior to the
stated maturity thereof; or
then, upon the occurrence of any such Event of Default and at any time
thereafter, the holder of this Note shall have the right (at such holder's
option) to declare the principal of, accrued unpaid interest on, and all other
amounts payable under this Note to be forthwith due and payable, whereupon all
such amounts shall be immediately due and payable to the holder of this Note,
without presentment, demand, protest or other notice of any kind, all of which
are hereby expressly waived; provided, however, that in case of the occurrence
of an Event of Default under any of Sections 5.1, 5.2 or 5.4 above, such amounts
shall become immediately due and payable without any such declaration by the
holder of this Note.
5. Suits for Enforcement and Remedies. If any one or more Events of
Default shall occur and be continuing, the Payee may proceed to (i) protect and
enforce Payee's rights either by suit in equity or by action at law, or both,
whether for the specific performance of any covenant, condition or agreement
contained in this Note or in any agreement or document referred to herein or in
aid of the exercise of any power granted in this Note or in any agreement or
document referred to herein, (ii) enforce the payment of this Note, or (iii)
enforce any other legal or equitable right of the holder of this Note. No right
or remedy herein or in any other agreement or instrument conferred upon the
holder of this Note is intended to be exclusive of any other right or remedy,
and each and every such right or remedy shall be cumulative and shall be in
addition to every other right and remedy given hereunder or now or hereafter
existing at law or in equity or by statute or otherwise.
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6. Unconditional Obligation; Fees, Waivers, Other.
6.1. The obligations to make the payments provided for in this
Note are absolute and unconditional and not subject to any defense, set-off,
counterclaim, rescission, recoupment or adjustment whatsoever.
6.2. If, following the occurrence of an Event of Default,
Payee shall seek to enforce the collection of any amount of principal of and/or
interest on this Note, there shall be immediately due and payable from Payor, in
addition to the then unpaid principal of, and accrued unpaid interest on, this
Note, all costs and expenses incurred by Payee in connection therewith,
including, without limitation, reasonable attorneys' fees and disbursements.
6.3. No forbearance, indulgence, delay or failure to exercise
any right or remedy with respect to this Note shall operate as a waiver or as an
acquiescence in any default, nor shall any single or partial exercise of any
right or remedy preclude any other or further exercise thereof or the exercise
of any other right or remedy.
6.4. This Note may not be modified or discharged (other than
by payment) except by a writing duly executed by Xxxxx and Xxxxx.
6.5. Payor hereby expressly waives demand and presentment for
payment, notice of nonpayment, notice of dishonor, protest, notice of protest,
bringing of suit, and diligence in taking any action to collect amounts called
for hereunder, and shall be directly and primarily liable for the payment of all
sums owing and to be owing hereon, regardless of and without any notice,
diligence, act or omission with respect to the collection of any amount called
for hereunder or in connection with any right, lien, interest or property at any
and all times which Payee had or is existing as security for any amount called
for hereunder.
7. Restriction on Transfer. This Note has been acquired for investment,
and this Note has not been registered under the securities laws of the United
States of America or any state thereof. Accordingly, no interest in this Note
may be offered for sale, sold or transferred in the absence of registration and
qualification of this Note, under applicable federal and state securities laws
or an opinion of counsel of Payee reasonably satisfactory to Payor that such
registration and qualification are not required..
8. Miscellaneous.
8.1. The headings of the various paragraphs of this Note are
for convenience of reference only and shall in no way modify any of the terms or
provisions of this Note.
8.2. All notices required or permitted to be given hereunder
shall be in writing and shall be deemed to have been duly given when personally
delivered or sent by registered or certified mail (return receipt requested,
postage prepaid), facsimile transmission or overnight courier to the address of
the intended recipient as set forth in the preamble to this Note or at such
other address as the intended recipient shall have hereafter given to the other
party hereto pursuant to the provisions of this Note.
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8.3. This Note and the obligations of Payor and the rights of
Payee shall be governed by and construed in accordance with the substantive laws
of the State of Maryland without giving effect to the choice of laws rules
thereof.
8.4. This Note shall bind Payor and its successors and
assigns.
INFORMEDIX ACQUISITION CORPORATION
By: /s/ Xxxxx Xxxx
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Name: Xxxxx Xxxx
Title: Chief Executive Officer
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SCHEDULE A
USE OF PROCEEDS
The proceeds shall be applied for general working capital purposes.
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