Attached files
| file | filename |
|---|---|
| EX-32.2 - EX-32.2 - BAETA CORP | v193027_ex32-2.htm |
| EX-31.1 - EX-31.1 - BAETA CORP | v193027_ex31-1.htm |
| EX-31.2 - EX-31.2 - BAETA CORP | v193027_ex31-2.htm |
| EX-32.1 - EX-32.1 - BAETA CORP | v193027_ex32-1.htm |
| 10-Q - 10-Q - BAETA CORP | v193027_10q.htm |
Exhibit 10.1
PROMISSORY
NOTE
August
9, 2010
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$100,000.00
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FOR VALUE RECEIVED, the
undersigned corporation (the “Company”), promises
to pay to MR. LEONID
PUSHKANTSER and MRS.
ANNA YANOVSKAYA, husband and wife with the Right of Survivorship,
residing at 251 Warren Avenue, Fort Lee, NJ 07024 (the “Lender”) or other
address as the Lender shall specify in writing, the principal sum of One Hundred
Thousand Dollars and Zero Cents
($100,000.00) and interest at the annual rate of five percent (5%) on the unpaid balance
pursuant to the following terms:
1. Principal
and Interest. For
value received, the Company hereby promises to pay to the order of the Lender in
lawful money of the United States of America and in immediately available funds
the principal sum of One Hundred Thousand Dollars and Zero Cents ($100,000.00), together with
interest on the unpaid principal of this note at the rate of five
percent (5%) per
year (computed on the basis of a 365-day year) from the date and upon the
conditions specified in Section 2 of this Promissory Note (the “Note”) until paid in
full. Interest shall begin to accrue as of the date of this Note.
2. Principal
and Interest Installment Payments. Repayment of this note shall
commence on the first day of the month following the execution of this Note, at
the rate of $5,000.00 per month, plus interest as specified in Section 1, until
the principal is paid off together with all interest due. At Company’s option,
the loan may be prepaid without penalty. Interest shall begin to accrue as of
the date of this Note.
All
principal and accrued interest shall be due and payable five (5) calendar years
from the date of this Note (the “Term”), in cash, notwithstanding the provisions
of this Section 2. All payment amounts shall be first applied to interest, if
any, and then to the balance to principal.
3. Right of
Prepayment. Notwithstanding the payments pursuant to Section 2, the
Company at its option shall have the right to prepay a portion or all
outstanding principal of the Note. There shall be no prepayment fee or
penalty.
4. Waiver
and Consent. To the fullest extent permitted by law and except as
otherwise provided herein, the Company waives demand, presentment, protest,
notice of dishonor, suit against or joinder of any other person, and all other
requirements necessary to charge or hold the Company liable with respect to this
Note.
5. Costs,
Indemnities and Expenses. In the event of default as described herein,
the Company agrees to pay all reasonable fees and costs incurred by the Lender
in collecting or securing or attempting to collect or secure this Note,
including reasonable attorneys’ fees and expenses, whether or not involving
litigation, collecting upon any judgments and/or appellate or bankruptcy
proceedings. The Company agrees to pay any documentary stamp taxes, intangible
taxes or other taxes which may now or hereafter apply to this Note or any
payment made in respect of this Note, and the Company agrees to indemnify and
hold the Lender harmless from and against any liability, costs, attorneys’ fees,
penalties, interest or expenses relating to any such taxes, as and when the same
may be incurred.
6. Unsecured
Nature of the Note.
This Note is not secured by any collateral or any tangible or intangible
assets of the Company.
7. Event of
Default. An “Event of Default”
shall be deemed to have occurred upon the occurrence of any of the following:
(i) the Company should fail for any reason or for no reason to make any payment
of the principal, interest, costs, indemnities, or expenses pursuant to this
Note within ten (10) days of the date due as prescribed herein; (ii) any
default, whether in whole or in part, in the due observance or performance of
any obligations or other covenants, terms or provisions to be performed by the
Lender under this Note, or any other related agreements hereunder between the
Company and the Lender of even date herewith which is not cured by the Company
by any applicable cure period therein, (iii) a breach of any representations or
warranties, or (iii) the Lender shall: (1) make a general assignment for
the benefit of its creditors; (2) apply for or consent to the appointment
of a receiver, trustee, assignee, custodian, sequestrator, liquidator or similar
official for itself or any of its assets and properties; (3) commence a
voluntary case for relief as a debtor under the United States Bankruptcy Code;
(4) file with or otherwise submit to any governmental authority any
petition, answer or other document seeking: (A) reorganization, (B) an
arrangement with creditors or (C) to take advantage of any other present or
future applicable law respecting bankruptcy, reorganization, insolvency,
readjustment of debts, relief of debtors, dissolution or liquidation;
(5) file or otherwise submit any answer or other document admitting or
failing to contest the material allegations of a petition or other document
filed or otherwise submitted against it in any proceeding under any such
applicable law, or (6) be adjudicated a bankrupt or insolvent by a court of
competent jurisdiction. Upon an Event of Default (as defined above), the entire
principal balance and accrued interest outstanding under this Note, and all
other obligations of the Company under this Note, shall be immediately due and
payable without any action on the part of the Lender, interest shall accrue on
the unpaid principal balance at twenty-four percent (24%) per year or the
highest rate permitted by applicable law, if lower, and the Lender shall be
entitled to seek and institute any and all remedies available to
it.
8. Maximum
Interest Rate. In no event shall any agreed to or actual interest
charged, reserved or taken by the Lender as consideration for this Note exceed
the limits imposed by New Jersey law. In the event that the interest provisions
of this Note shall result at any time or for any reason in an effective rate of
interest that exceeds the maximum interest rate permitted by applicable law,
then without further agreement or notice the obligation to be fulfilled shall be
automatically reduced to such limit and all sums received by the Lender in
excess of those lawfully collectible as interest shall be applied against the
principal of this Note immediately upon the Lender’s receipt thereof, with the
same force and effect as though the Company had specifically designated such
extra sums to be so applied to principal and the Lender had agreed to accept
such extra payment(s) as a premium-free prepayment or prepayments.
9. Issuance
of Capital Stock. So long as any portion of this Note is outstanding, the
Company shall not, without the prior written consent of the Lender, (i) issue or
sell shares of common stock or preferred stock without consideration or for a
consideration per share less than the bid price of the common stock determined
immediately prior to its issuance, (ii) issue any warrant, option, right,
contract, call, or other security instrument granting the holder thereof, the
right to acquire common stock without consideration or for a consideration less
than such common stock’s bid price value determined immediately prior to it’s
issuance, (iii) enter into any security instrument granting the holder a
security interest in any and all assets of the Company, or (iv) file any
registration statement on Form S-8.
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10. Cancellation
of Note. Upon the repayment by the Company of all of its obligations
hereunder to the Lender, including, without limitation, the principal amount of
this Note, plus accrued but unpaid interest, the indebtedness evidenced hereby
shall be deemed canceled and paid in full. Except as otherwise required by law
or by the provisions of this Note, payments received by the Lender hereunder
shall be applied first against expenses and indemnities, next against interest
accrued on this Note, and next in reduction of the outstanding principal balance
of this Note.
11. Severability. If any provision of this
Note is, for any reason, invalid or unenforceable, the remaining provisions of
this Note will nevertheless be valid and enforceable and will remain in full
force and effect. Any provision of this Note that is held invalid or
unenforceable by a court of competent jurisdiction will be deemed modified to
the extent necessary to make it valid and enforceable and as so modified will
remain in full force and effect.
12. Amendment
and Waiver. This
Note may be amended, or any provision of this Note may be waived, provided that
any such amendment or waiver will be binding on a party hereto only if such
amendment or waiver is set forth in a writing executed by the parties hereto.
The waiver by any such party hereto of a breach of any provision of this Note
shall not operate or be construed as a waiver of any other breach.
13. Successors. Except as otherwise provided
herein, this Note shall bind and inure to the benefit of and be enforceable by
the parties hereto and their permitted successors and assigns.
14. Assignment. This Note shall not be
directly or indirectly assignable or delegable by the Company. The Lender may
assign this Note as long as such assignment complies with the Securities Act of
1933, as amended.
15. No Strict
Construction. The
language used in this Note will be deemed to be the language chosen by the
parties hereto to express their mutual intent, and no rule of strict
construction will be applied against any party.
16. Further
Assurances. Each
party hereto will execute all documents and take such other actions as the other
party may reasonably request in order to consummate the transactions provided
for herein and to accomplish the purposes of this Note.
17. Notices,
Consents, etc. Any notices, consents, waivers or other communications
required or permitted to be given under the terms hereof must be in writing and
will be deemed to have been delivered: (i) upon receipt, when delivered
personally; (ii) upon receipt, when sent by facsimile (provided confirmation of
transmission is mechanically or electronically generated and kept on file by the
sending party); or (iii) one (1) trading day after deposit with a nationally
recognized overnight delivery service, in each case properly addressed to the
party to receive the same. The addresses and facsimile numbers for such
communications shall be:
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If
to Company:
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BAETA
Corp.
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Att:
Dr. Alexander Gak
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1
Bridge Plaza
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Second
Floor, Suite 275
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Fort
Lee, NJ 07024
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If
to the Lender:
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Mr.
Leonid Pushkantser
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Mrs.
Anna Yanovskaya
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251
Warren Avenue
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Fort
Lee, NJ 07024
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or at
such other address and/or facsimile number and/or to the attention of such other
person as the recipient party has specified by written notice given to each
other party three (3) trading days prior to the effectiveness of such change.
Written confirmation of receipt (A) given by the recipient of such notice,
consent, waiver or other communication, (B) mechanically or electronically
generated by the sender's facsimile machine containing the time, date, recipient
facsimile number and an image of the first page of such transmission or (C)
provided by a nationally recognized overnight delivery service, shall be
rebuttable evidence of personal service, receipt by facsimile or receipt from a
nationally recognized overnight delivery service in accordance with clause (i),
(ii) or (iii) above, respectively.
18. Remedies,
Other Obligations, Breaches and Injunctive Relief. The Lender’s remedies
provided in this Note shall be cumulative and in addition to all other remedies
available to the Lender under this Note, at law or in equity (including a decree
of specific performance and/or other injunctive relief), no remedy of the Lender
contained herein shall be deemed a waiver of compliance with the provisions
giving rise to such remedy and nothing herein shall limit the Lender’s right to
pursue actual damages for any failure by the Company to comply with the terms of
this Note. No remedy conferred under this Note upon the Lender is intended to be
exclusive of any other remedy available to the Lender, pursuant to the terms of
this Note or otherwise. No single or partial exercise by the Lender of any
right, power or remedy hereunder shall preclude any other or further exercise
thereof. The failure of the Lender to exercise any right or remedy under this
Note or otherwise, or delay in exercising such right or remedy, shall not
operate as a waiver thereof. Every right and remedy of the Lender under any
document executed in connection with this transaction may be exercised from time
to time and as often as may be deemed expedient by the Lender. The Company
acknowledges that a breach by it of its obligations hereunder will cause
irreparable harm to the Lender and that the remedy at law for any such breach
may be inadequate. The Company therefore agrees that, in the event of any such
breach or threatened breach, the Lender shall be entitled, in addition to all
other available remedies, to an injunction restraining any breach, and specific
performance without the necessity of showing economic loss and without any bond
or other security being required.
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19. Governing
Law; Jurisdiction.
THIS NOTE SHALL BE ENFORCED, GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF NEW JERSEY APPLICABLE TO AGREEMENTS MADE AND TO BE
PERFORMED ENTIRELY WITHIN SUCH STATE, WITHOUT REGARD TO THE PRINCIPLES OF
CONFLICT OF LAWS. THE BORROWER HEREBY SUBMITS TO THE EXCLUSIVE JURISDICTION OF
THE UNITED STATES FEDERAL COURTS LOCATED IN NEW JERSEY, NEW JERSEY WITH RESPECT
TO ANY DISPUTE ARISING UNDER THIS NOTE, THE AGREEMENTS ENTERED INTO IN
CONNECTION HEREWITH OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY. BOTH
PARTIES IRREVOCABLY WAIVE THE DEFENSE OF AN INCONVENIENT FORUM TO THE
MAINTENANCE OF SUCH SUIT OR PROCEEDING. BOTH PARTIES FURTHER AGREE THAT SERVICE
OF PROCESS UPON A PARTY MAILED BY FIRST CLASS MAIL SHALL BE DEEMED IN EVERY
RESPECT EFFECTIVE SERVICE OF PROCESS UPON THE PARTY IN ANY SUCH SUIT OR
PROCEEDING. NOTHING HEREIN SHALL AFFECT EITHER PARTY’S RIGHT TO SERVE PROCESS IN
ANY OTHER MANNER PERMITTED BY LAW. BOTH PARTIES AGREE THAT A FINAL
NON-APPEALABLE JUDGMENT IN ANY SUCH SUIT OR PROCEEDING SHALL BE CONCLUSIVE AND
MAY BE ENFORCED IN OTHER JURISDICTIONS BY SUIT ON SUCH JUDGMENT OR IN ANY OTHER
LAWFUL MANNER. THE PARTY WHICH DOES NOT PREVAIL IN ANY DISPUTE ARISING UNDER
THIS NOTE SHALL BE RESPONSIBLE FOR ALL FEES AND EXPENSES, INCLUDING ATTORNEYS’
FEES, INCURRED BY THE PREVAILING PARTY IN CONNECTION WITH SUCH
DISPUTE.
20. No
Inconsistent Agreements. None of the parties hereto
will hereafter enter into any agreement, which is inconsistent with the rights
granted to the parties in this Note.
21. Third
Parties. Nothing
herein expressed or implied is intended or shall be construed to confer upon or
give to any person or entity, other than the parties to this Note and their
respective permitted successor and assigns, any rights or remedies under or by
reason of this Note.
22. Waiver of Jury Trial.
AS A MATERIAL INDUCEMENT FOR THE LENDER TO LOAN TO THE COMPANY THE MONIES
HEREUNDER, THE COMPANY HEREBY WAIVES ANY RIGHT TO TRIAL BY JURY IN ANY LEGAL
PROCEEDING RELATED IN ANY WAY TO THIS AGREEMENT AND/OR ANY AND ALL OF THE OTHER
DOCUMENTS ASSOCIATED WITH THIS TRANSACTION.
23. Entire
Agreement. This Note (including any recitals hereto) set forth the entire
understanding of the parties with respect to the subject matter hereof, and
shall not be modified or affected by any offer, proposal, statement or
representation, oral or written, made by or for any party in connection with the
negotiation of the terms hereof, and may be modified only by instruments signed
by all of the parties hereto.
[REMAINDER
OF PAGE INTENTIONALY LEFT BLANK]
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IN WITNESS WHEREOF, this
Promissory Note is executed by the undersigned as of the date
hereof.
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BAETA
Corp.
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|||
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By:
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/s/ Alexander Gak | |
| Name: Alexander Gak | |||
| Title: President | |||
| Date: August 9, 2010 | |||
Acknowledged
and Agreed to:
NOTE
HOLDERS:
Mr.
Leonid Pushkantser
| By: |
/s/
Leonid Pushkantser
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|||
| Name: Mr. Leonid Pushkantser |
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||||
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Date: August
9, 2010
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Mrs. Anna Yanovskaya
| By: |
/s/
Anna Yanovskaya
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| Name: Mrs. Anna Yanovskaya |
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Date: August
9, 2010
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