EXHIBIT 4.1
THIS NOTE AND THE SHARES OF COMMON
STOCK ISSUABLE UPON CONVERSION HEREOF HAVE NOT BEEN REGISTERED
UNDER THE UNITED STATES SECURITIES ACT OF 1933, AND MAY NOT BE
SOLD, TRANSFERRED, ASSIGNED, PLEDGED OR HYPOTHECATED ABSENT AN
EFFECTIVE REGISTRATION THEREOF UNDER SUCH ACT OR COMPLIANCE WITH AN
AVAILABLE EXEMPTION FROM REGISTRATION. THE COMPANY MAY REFUSE
TO AUTHORIZE ANY TRANSFER OF THE SECURITIES IN RELIANCE ON AN
EXEMPTION FROM REGISTRATION UNTIL IT HAS RECEIVED AN OPINION OF
COUNSEL, SATISFACTORY TO THE COMPANY AND ITS COUNSEL, THAT SUCH
REGISTRATION IS NOT REQUIRED.
THE COMPANY IS AUTHORIZED TO ISSUE
MORE THAN ONE CLASS OF STOCK OR MORE THAN ONE SERIES OF ANY CLASS
OF STOCK. THE DESIGNATIONS, PREFERENCES AND RELATIVE,
PARTICIPATING, OPTIONAL OR OTHER SPECIAL RIGHTS OF THE SHARES OF
EACH CLASS OR SERIES THEREOF AND THE QUALIFICATIONS, LIMITATIONS OR
RESTRICTIONS OF SUCH RIGHTS, ARE SET FORTH IN THE ARTICLES OF
INCORPORATION OF THE COMPANY. A COPY OF SAID ARTICLES OF
INCORPORATION WILL BE FURNISHED FREE OF CHARGE TO THE HOLDER OF
THIS CERTIFICATE UPON WRITTEN REQUEST TO THE SECRETARY OF THE
COMPANY.
THIS NOTE AND THE SHARES OF COMMON
STOCK ISSUABLE UPON CONVERSION HEREOF MAY BE TRANSFERRED ONLY IN
ACCORDANCE WITH THE TERMS OF AN AGREEMENT BETWEEN THE COMPANY AND
THE HOLDER, A COPY OF WHICH IS ON FILE WITH THE SECRETARY OF THE
COMPANY.
BIOFORCE NANOSCIENCES HOLDINGS,
INC.
CONVERTIBLE SECURED PROMISSORY
NOTE
Principal Amount:
$50,000.00
November 17, 2008
BioForce Nanosciences Holdings, Inc. (the
“Company”) for value received, promises to pay to the
order of FCPR SGAM AI Biotechnology Fund (the
“Purchaser”), the principal amount set forth above plus
interest thereon calculated from the date hereof until paid in full
at thirteen and one half percent (13.5%) per annum compounded
annually. In the Event of Default (as defined below) interest
shall be calculated at twenty percent (20%) per annum, compounded
annually, until the Note is paid in full. Except in the Event of
Default, principal and interest accrued hereunder but unpaid will
be due and payable in lawful money of the United States in full on
November 17, 2009 (the “Maturity Date”), unless
(i) this Note has been previously converted pursuant to
Section 2 hereof, in which case all outstanding principal and
accrued interest under this Note shall be satisfied in full by
virtue of such conversion and the issuance and delivery of fully
paid and non-assessable debt or equity securities to the Purchaser
as set forth in Section 2 hereof, (ii) this Note has been
previously redeemed pursuant to Section 4 or Section 5 hereof, in
which case all accrued interest shall be paid on the redemption
date.
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The following is a statement of the
rights of the Purchaser and the conditions to which this Note is
subject, and to which the Purchaser, by the acceptance of this
Note, agrees:
1.
Definitions . As used in this Note, the following terms,
unless the context otherwise requires, have the following
meanings:
1.1.
“Common Stock” shall
mean the Common Stock, $0.001 par value per share, of the Issuer
and any other Capital Stock into which such stock may hereafter be
changed.
1.2.
“Conversion Price” means the
Warrant Price as defined in Warrant to Purchase Shares of Common
Stock (the “Warrant”) issued to the Purchaser by the
Company on the date of this note, and pursuant to the Convertible
Secured Promissory Note and Warrant Purchase Agreement between the
Company, the Purchaser, and other parties as of the same date.
If the Warrant is no longer outstanding as of the date of
conversion of this Note, the Conversion Price shall be the Warrant
Price that would have been in effect on the date of conversion of
the Note had the Warrant still been outstanding.
1.3.
“Financing” shall mean the
Company's sale or issuance, from and after the date hereof, of its
equity securities, or debt securities convertible into Common
Stock, for cash (excluding securities issued upon the exercise of
options or upon the exercise of warrants or other convertible debt
securities of the Company outstanding on the date hereof or upon
the conversion of the Notes) in one transaction or a series of
transactions occurring after the date hereof, which results in the
receipt by the Company of at least $1,000,000 in proceeds from one
or more investors.
1.4.
“Financing Price” shall
mean the price per share or other unit at which the Company sells
its equity securities, or debt securities convertible into Common
Stock, in the first Financing following the date hereof.
1.5.
“Financing Securities” shall
mean the class or series of equity or debt securities that the
Company issues or sells in connection with the first Financing
following the date hereof.
1.6.
“Note” shall mean this
convertible secured promissory note.
1.7.
“Person” shall mean any
individual, corporation, partnership, joint venture, trust,
business association, organization, governmental authority or other
entity.
2.
Conversion .
2.1.
Voluntary Conversion by the
Purchaser . At any time prior
to this Note being paid in full, the Purchaser shall have the
right, but not the obligation, to convert all but not less than all
of the principal and interest due under this Note into shares of
the Company’s
Common Stock at the Conversion Price.
Upon a voluntary conversion pursuant to this Section 2.1, the
Purchaser shall provide the Company written notice of its intent to
convert. The Company shall then issue the Common Stock upon
surrender of this Note for conversion at the principal office of
the Company.
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2.2.
Voluntary Conversion Associated with
Subsequent Financing. At
any time prior to this Note being paid in full, if the Company
consummates an equity financing, or a debt financing where that
debt is convertible into equity securities, the Purchaser may
exchange the Note for the securities issued in such financing on
the terms of the subsequent offering. The Company shall
provide the Purchaser of notice of any debt or equity offerings
while this Note is outstanding. If the Purchaser wishes to
convert this Note under Section 2.2, the Purchaser shall provide
the Company with written notice of its intent to convert within
fifteen days of receipt of notice from the Company of a subsequent
financing. The Company shall then issue the applicable debt
or equity securities upon surrender of this Note for conversion at
the principal office of the Company.
2.3.
Mandatory Conversion
. This Note shall automatically
convert simultaneous with the closing of a Financing. Upon a
mandatory conversion pursuant to this Section 2.3, the Company
shall provide the Purchaser notice thereof and the Purchaser shall
surrender of this Note for conversion at the principal office of
the Company. The Purchaser shall have the option of
converting this note into i) Financing Securities at the Financing
Price, or ii) shares of the Company’s Common Stock at the
then applicable Conversion Price, and will provide the Company with
written notice of which conversion option it chooses within five
business days of receipt of notice from the Company that a
Financing has occurred.
2.4.
No Fractional Shares
. No fractional shares will be
issued on conversion of this Note. If on any conversion of
this Note a fraction of a share results, the Company will pay the
cash value of that fractional share, calculated on the basis of the
applicable Conversion Price.
2.5.
Fully Paid Shares
. All shares of Common Stock or
Financing Securities issued or transferred upon the conv
