Attached files
| file | filename |
|---|---|
| 8-K/A - ProUroCare Medical Inc. | v189007_8ka.htm |
| EX-4.1 - ProUroCare Medical Inc. | v189007_ex4-1.htm |
Exhibit 10.1
FORM
OF UNSECURED PROMISSORY NOTE
THIS NOTE
HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR UNDER
THE PROVISIONS OF ANY APPLICABLE STATE SECURITIES LAWS. THIS NOTE MAY
NOT BE SOLD, OFFERED FOR SALE, PLEDGED, HYPOTHECATED OR OTHERWISE TRANSFERRED IN
THE ABSENCE OF SUCH REGISTRATION OR AN OPINION OF COUNSEL SATISFACTORY TO THE
COMPANY THAT SUCH REGISTRATION IS NOT REQUIRED.
EFFECTIVE DATE AND
PARTIES. This Unsecured Promissory Note (the “Note”) is made
effective as of _____________, 2010. The parties and their addresses
are:
|
LENDER
|
(“You” and
“Your”):
|
|
|
Name
|
|
|
Address
|
|
BORROWER
|
(“we,’ ‘us,’ and “our”) |
PROUROCARE
INC
a
Minnesota Corporation
6440
Flying Cloud Dr., STE 101
Eden
Prairie, MN 55344
1. PROMISE TO PAY. For
value received, we promise to pay you or your order, at your address, the
principal amount of $_____________ (“Principal”),
plus interest from the date of this Note, on December 1, 2010 (the “Maturity
Date”).
2. INTEREST. Interest
will accrue on the unpaid Principal balance of this Note as
follows:
|
A.
|
Warrant-based Interest
Payment. During the first thirty (30) days of the term
of this Note, for every $13,000 original principal amount of Notes, you
shall receive as interest warrants to purchase 333.333 shares of
ProUroCare Medical Inc. $0.00001 par value common stock substantially in
the form of Exhibit B (the “Warrants”) for each day that the Principal
remains unpaid. Warrants
earned will be prorated based on the principal amount of the Note for
amounts that are not a multiple of $13,000, and fractional warrants will
be rounded up to the next whole number. The maximum number of
warrants issued will be 10,000 warrants per each $13,000 of
principal.
|
|
B.
|
Cash Interest –
Following the first thirty (30) days of the term of this Note until the
earliest to occur of the prepayment of the Principal, the conversion of
this Note or the Maturity Date, interest will
accrue on the unpaid Principal at a fixed rate per annum equal to six
percent (6.0%) (the “Interest Rate”). The Interest Rate shall
be computed on the basis of actual days elapsed and a year of 360
days.
|
|
C.
|
Payment of
Interest. Within ten (10) days of the earliest to occur
of (i) the prepayment or conversion of the unpaid Principal or (ii) June
27, 2010, the Company shall record in its books and records that the
undersigned is entitled to that number of Warrants earned pursuant to
Section 2.A. above, and deliver to you a certificate representing the
earned Warrants. Cash interest earned pursuant to Section 2.B.
above shall be accrued and paid upon the earliest to occur of (i) the
prepayment or conversion of the principal amount of the Note or (ii) the
Maturity Date.
|
1
3. PREPAYMENT. We may
prepay the unpaid Principal, in full or in part at any time, together with any
cash interest or warrant-based interest payment accrued thereon to the date of
prepayment. Any partial prepayment will not excuse any later
scheduled payments until we pay in full.
4. CONVERSION
PRIVILEGE. The Principal and cash interest accrued thereon may
be used to pay for the exercise of any warrants to purchase ProUroCare Medical
Inc.’s common stock held by you or applied toward the subscription to any equity
security offering of the Company, at the stated exercise or offering prices, to
the extent permitted under the terms of such offering.
5. SUBORDINATION. This
Note shall be subordinated in all respects (including right of payment) to all
other indebtedness of the Company, now existing or hereafter owing, to banks and
other such financial institutions, as well as $543,000 of other
loans.
6. DEFAULT. The
following shall be considered a default under this Note:
|
A.
|
Payments. We
fail to make a payment in full when due, and fail to make such payment
within five (5) days’ of your giving us notice of such failure to make the
payment.
|
|
B.
|
Insolvency or
Bankruptcy. The death, dissolution or insolvency of
appointment of a receiver by or on behalf of, application of any debtor
relief law, the assignment for the benefit of creditors by or on behalf
of, the voluntary or involuntary termination of existence by, or the
commencement of any proceeding under any present or future federal or
state insolvency, bankruptcy, reorganization, composition or debtor relief
law by or against us.
|
|
C.
|
Business
Termination. We merge, dissolve, reorganize, or end our
business or existence.
|
|
D.
|
Failure to
Perform. We fail to perform any condition or to keep any
promise or covenant of this Note and fail to cure this lack of performance
within fifteen (15) days of your giving us notice
thereof.
|
|
E.
|
Judgment. We
fail to satisfy or appeal any judgment against
us.
|
7. WAIVERS AND
CONSENT. To the extent not prohibited by law, we waive
protest, presentment for payment, demand, notice of acceleration, notice of
intent to accelerate and notice of dishonor. You may renew or extend
payments on this Note, regardless of the number of such renewals or
extensions. You may invoke your right of set-off. Your
course of dealing, or your forbearance from, or delay in, the exercise of any of
your rights, remedies, privileges or right to insist upon our strict performance
of any provisions contained in this Note shall not be construed as a waiver by
you, unless any such waiver is in writing and is signed by you.
8. REMEDIES. After we
default pursuant to Section 6 hereof, and after you give any legally required
notice and opportunity to cure the default, you may at your option do any one or
more of the following,
|
A.
|
Acceleration. You
may make all or any part of the amount owing by the terms of this Note
immediately due.
|
|
B.
|
Sources. You
may use any and all legal remedies you have under state or federal
law.
|
|
C.
|
Set-Off. You
may use the right of set-off. This means you may set-off any
amount due and payable under the terms of this Note against any right we
have to receive money from you.
|
2
|
D.
|
Waiver. Except
as otherwise required by law, by choosing any one or more of these
remedies you do not give up your right to use any other
remedy. You do not waive a default if you choose not to use a
remedy. By electing not to use any remedy, you do not waive
your right to later consider the event a default and to use any remedies
if the default continues or occurs
again.
|
9. COLLECTION EXPENSES AND ATTORNEYS’
FEES. On or after default pursuant to Section 6 hereof, to the
extent permitted by law, we agree to pay all expenses of collection, enforcement
or protection of your rights and remedies under this Note. Expenses
include, but are not limited to, attorneys’ fees, court costs and other legal
expenses. In addition, to the extent permitted by the United States
Bankruptcy Code, we agree to pay the reasonable attorneys’ fees incurred by you
to protect your rights and interests in connection with any bankruptcy
proceedings initiated by or against us.
10. WARRANTIES AND
REPRESENTATIONS. We make to you the following warranties and
representations which will continue as long as this Note is in
effect:
A. Power. We are duly
organized, and validly existing and in good standing in all jurisdictions in
which we operate. We have the power and authority to enter into this
transaction and to carry on our business or activity as it is now being
conducted and, as applicable, are qualified to do so in each jurisdiction in
which we operate.
B. Authority. The
execution, delivery and performance of this Note and the obligation evidenced by
this Note are within our powers, have been duly authorized, will not violate any
provision of applicable law, or order of court or governmental agency, and will
not violate any agreement to which we are a party or to which we are or any of
our property is subject, unless consent with respect thereto has been
obtained.
11. LOST,
STOLEN, MUTILATED, OR DESTROYED NOTES. If this Note is lost,
stolen, mutilated, or destroyed, the Company may on such terms as to indemnity
or otherwise (which shall, in the case of a mutilated Note, include the
surrender thereof), issue a new Note of like denomination, tenor, and date as
the Note so lost, stolen, mutilated, or destroyed. Any such new Note shall
constitute a substitute contractual obligation of the Company, whether or not
the allegedly lost, stolen, mutilated, or destroyed Note shall be at any time
enforceable by anyone, and the allegedly lost, stolen, mutilated, or destroyed
Note shall thereupon become void.
12. APPLICABLE
LAW. This Note is governed by the laws of Minnesota, without
regards to its conflicts of law provisions. In the event of a
dispute, the exclusive forum, venue and place of jurisdiction will be in
Minnesota, unless otherwise required by law.
13. SUCCESSORS. This
Note shall inure to the benefit of and be enforceable by you and your successors
and assigns and shall be binding upon and enforceable against us and our
successors and assigns.
14. AMENDMENT, INTEGRATION AND
SEVERABILITY. This Note may not be amended or modified by oral
agreement. No amendment or modification of this Note is effective
unless made in writing and executed by you and us. This Note is the
complete and final expression of the agreement. If any provision of
this Note is unenforceable, then the unenforceable provision will be severed and
the remaining provisions will still be enforceable.
15. INTERPRETATION. Whenever
used, the singular includes the plural and the plural includes the
singular. The section headings are for convenience only and are not
to be used to interpret or define the terms of this Note.
3
16. NOTICE. All notices
or communications hereunder, except as herein otherwise specifically provided,
shall be in writing and shall be deemed to have been given or made for all
purposes (i) upon personal delivery, (ii) upon confirmation receipt
that the communication was successfully sent to the applicable number if sent by
facsimile; (iii) one day after being sent, when sent by professional
overnight courier service, or (iv) five days after posting when sent by
registered or certified mail. Notices sent to the Lender shall be
mailed, hand delivered or faxed to the Lender at his, her or its address set
forth in the Subscription Agreement executed by Lender. Notices sent
to the Company shall be mailed, hand delivered or faxed to ProUroCare Medical
Inc., 6440 Flying Cloud Dr., Suite 101, Eden Prairie, MN 55344, or to
such other address as the Company or the Lender shall notify the other as
provided in this Section.
17. SIGNATURES. By
signing, we agree to the terms contained in this Note. We also
acknowledge receipt of a copy of this Note.
BORROWER:
PROUROCARE
INC.
|
By
__________________________
|
__________________________
|
|
|
Richard
C. Carlson
|
Date
|
|
|
Its:
Chief Executive Officer
|
4