Attached files
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| 8-K - FORM 8-K - FLUOROPHARMA MEDICAL, INC. | fpmi8k_dec222016.htm |
Exhibit 4.1
THIS NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933,
AS AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAW AND
MAY NOT BE SOLD, TRANSFERRED OR OTHERWISE DISPOSED OF UNLESS
REGISTERED UNDER THE SECURITIES ACT AND UNDER APPLICABLE STATE
SECURITIES LAWS OR THE COMPANY SHALL HAVE RECEIVED AN OPINION OF
ITS COUNSEL THAT REGISTRATION OF SUCH SECURITIES UNDER THE
SECURITIES ACT AND UNDER THE PROVISIONS OF APPLICABLE STATE
SECURITIES LAWS IS NOT REQUIRED.
FLUOROPHARMA MEDICAL, INC.
PROMISSORY NOTE
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U.S.
$50,000
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New York, New
York
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December 22,
2016
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FOR VALUE RECEIVED, the undersigned,
FLUOROPHARMA MEDICAL, INC., a Nevada corporation (the "Borrower"), hereby promises to
pay to the order of Lewis Bosher or any future permitted holder of
this promissory note (the "Lender"), at the principal
office of the Lender set forth herein, or at such other place as
the holder may designate in writing to the Borrower, the principal
sum of up to FIFTY THOUSAND DOLLARS (U.S. $50,000), or such other
amount as may be outstanding hereunder, together with all accrued
but unpaid interest, 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 and in immediately available funds, as
provided in this promissory note (the "Note").
1.
Principal and Interest
Payments.
(a) The
Company shall repay in full the entire principal balance plus
accrued interest then outstanding under this Note in cash on the
"Maturity Date" of
January 31, 2017.
(b)
Interest on the outstanding principal balance of this Note shall
accrue at a rate of (i) ten percent (10%) per annum in the event
this Note is repaid on or before the Maturity Date and (ii) fifteen
percent (15%) per annum in the event this Note is not repaid on or
before the Maturity Date. Interest on the outstanding principal
balance of the Note shall be computed on the basis of the actual
number of days elapsed and a year of three hundred and sixty (360)
days and shall be payable by the Borrower in cash.
2.
Payment on Non-Business
Days. Whenever any payment to be made shall be due on a
Saturday, Sunday or a public holiday under the laws of the State of
New York, such payment may be due on the next succeeding business
day and such next succeeding day shall be included in the
calculation of the amount of accrued interest payable on such
date.
3.
Events of Default;
Remedies. The occurrence of any of the following events of
default (“Event of
Default”) shall, at the option of the Lender hereof,
make all sums of principal then remaining unpaid hereon and all
other amounts payable hereunder immediately due and payable, upon
demand, without presentment or grace period, all of which hereby
are expressly waived, except as set forth below:
3.1 Failure
to Pay Principal. The Borrower fails to pay any installment
of principal under this Note within ten (10) days after such
amounts are due.
3.2 Breach
of Covenant. The Borrower breaches any material covenant or
other term or condition of this Note, except for a breach of
payment, in any material respect and such breach, if subject to
cure, continues for a period of twenty (20) days after written
notice to the Borrower from the Lender.
3.3 Liquidation.
Any dissolution, liquidation or winding up by Borrower or a
Subsidiary of a substantial portion of their business.
3.4 Cessation
of Operations. Any cessation of operations by Borrower or a
Subsidiary.
3.5 Judgments.
Any money judgment, writ or similar final process shall be entered
or made in a non-appealable adjudication against Borrower or any
Subsidiary or any of its property or other assets for more than
$250,000 in excess of the Borrower’s insurance coverage,
unless stayed vacated or satisfied within 60 days.
3.6 Bankruptcy.
(a) Borrower
files any petition or action for relief under any bankruptcy,
reorganization, insolvency or moratorium law or any other law for
the relief of, or relating to, debtors, now or hereafter in effect,
or makes any assignment for the benefit of creditors or takes any
corporate action in furtherance of any of the foregoing;
and
(b) An
involuntary petition is filed against Borrower under any bankruptcy
statute now or hereafter in effect, and such petition is not
dismissed or discharged within 60 days, or a custodian, receiver,
trustee, assignee for the benefit of creditors (or other similar
official) is appointed to take possession, custody or control of
any property of Borrower.
4.
Replacement. Upon
receipt of a duly executed, notarized and unsecured written
statement from the Lender with respect to the loss, theft or
destruction of this Note (or any replacement hereof), and without
requiring an indemnity bond or other security, or, in the case of a
mutilation of this Note, upon surrender and cancellation of such
Note, the Borrower shall issue a new Note, of like tenor and
amount, in lieu of such lost, stolen, destroyed or mutilated
Note.
5.
Parties in Interest,
Transferability. This Note shall be binding upon the
Borrower and its successors and assigns and the terms hereof shall
inure to the benefit of the Lender and its successors and permitted
assigns. This Note may be transferred or sold, subject to the
provisions of Section 7 of this Note, or pledged, hypothecated or
otherwise granted as Security by the Lender.
6.
Remedies,
Characterizations, Other Obligations, Breaches and Injunctive
Relief. Upon an Event of Default, the Lender shall have all
the rights and remedies contained herein. The remedies provided in
this Note shall be cumulative and in addition to all other remedies
available under this Note, at law or in equity (including, without
limitation, a decree of specific performance and/or other
injunctive relief), and no remedy contained herein shall be deemed
a waiver of compliance with the provisions giving rise to such
remedy and nothing herein shall limit a Lender's right to pursue
actual damages for any failure by the Borrower to comply with the
terms of this Note. Amounts set forth or provided for herein with
respect to payments and the like (and the computation thereof)
shall be the amounts to be received by the Lender and shall not,
except as expressly provided herein, be subject to any other
obligation of the Borrower (or the performance thereof). The
Borrower acknowledges that a breach by it of its obligations
hereunder will cause irreparable and material harm to the Lender
and that the remedy at law for any such breach may be inadequate.
Therefore the Borrower agrees that, in the event of any such breach
or threatened breach, the Lender shall be entitled, in addition to
all other available rights and remedies, at law or in equity, to
seek and obtain such equitable relief, including but not limited to
an injunction restraining any such breach or threatened breach,
without the necessity of showing economic loss and without any bond
or other security being required.
7.
Compliance with Securities
Laws. The Lender of this Note acknowledges that this Note is
being acquired solely for the Lender's own account and not as a
nominee for any other party, and for investment, and that the
Lender shall not offer, sell or otherwise dispose of this Note
other than in compliance with the laws of the United States of
America and as guided by the rules of the Securities and Exchange
Commission. This Note and any Note issued in substitution or
replacement therefore shall be stamped or imprinted with a legend
in substantially the following form:
"THIS
NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAW AND MAY
NOT BE SOLD, TRANSFERRED OR OTHERWISE DISPOSED OF UNLESS REGISTERED
UNDER THE SECURITIES ACT AND UNDER APPLICABLE STATE SECURITIES LAWS
OR THE COMPANY SHALL HAVE RECEIVED AN OPINION OF ITS COUNSEL THAT
REGISTRATION OF SUCH SECURITIES UNDER THE SECURITIES ACT AND UNDER
THE PROVISIONS OF APPLICABLE STATE SECURITIES LAWS IS NOT
REQUIRED."
8.
Borrower Waivers.
Except as otherwise specifically provided herein, the Borrower and
all others that may become liable for all or any part of the
obligations evidenced by this Note, hereby waive presentment,
demand, notice of nonpayment, protest and all other demands and
notices in connection with the delivery, acceptance, performance
and enforcement of this Note, and do hereby consent to any number
of renewals of extensions of the time or payment hereof and agree
that any such renewals or extensions may be made without notice to
any such persons and without affecting their liability herein and
do further consent to the release of any person liable hereon, all
without affecting the liability of the other persons, firms or
Borrower liable for the payment of this Note, AND DO HEREBY WAIVE
TRIAL BY JURY.
(a) No
delay or omission on the part of the Lender in exercising its
rights under this Note, or course of conduct relating hereto, shall
operate as a waiver of such rights or any other right of the
Lender, nor shall any waiver by the Lender of any such right or
rights on any one occasion be deemed a waiver of the same right or
rights on any future occasion.
(b) THE
BORROWER ACKNOWLEDGES THAT THE TRANSACTION OF WHICH THIS NOTE IS A
PART IS A COMMERCIAL TRANSACTION, AND TO THE EXTENT ALLOWED BY
APPLICABLE LAW, HEREBY WAIVES ITS RIGHT TO NOTICE AND HEARING WITH
RESPECT TO ANY PREJUDGMENT REMEDY WHICH THE LENDER OR ITS
SUCCESSORS OR ASSIGNS MAY DESIRE TO USE.
9.
Governing
Law. This Agreement shall be
governed by and construed in accordance with the laws of the State
of New York without giving effect to the choice of law
provisions. This Agreement shall not be interpreted or construed
with any presumption against the party causing this Note to be
drafted.
10.
Notices.
Any notices, demands or waivers
required or permitted to be given under the terms of this Note
shall be in writing and shall be sent by certified or registered
mail (return receipt requested) or delivered personally or by
courier (including a recognized overnight delivery service) or by
facsimile and shall be effective five (5) days after being placed
in the mail, if mailed, or upon receipt, if delivered personally or
by courier, or by facsimile (if received during normal business
hours), in each case to the address of the party to receive such
notice, demand or waiver as set forth below:
If
to the Borrower:
FluoroPharma
Medical, Inc.
8 Hillside Avenue,
Suite 108
Montclair, NJ
07042
Attention: CEO and
President
Telephone No.:
(973) 744-1565
Facsimile No. (973)
744-7617
If to the Lender:
At the
address of such Lender set forth in the Company’s books and
records.
[signature page follows]
IN WITNESS WHEREOF, the Borrower has
executed and delivered this Note as of the date first written
above.
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FLUOROPHARMA
MEDICAL, INC.
By:
Name: Thomas H. Tulip
Title: President & CEO
Lewis
C. Bosher
By:
Name: Lewis C. Bosher
Title: Private Investor
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