EXHIBIT 10.43
CONVERTIBLE PROMISSORY NOTE
$105,458
September 29, 2005
FOR VALUE RECEIVED, the undersigned, DIASYS
CORPORATION, a Delaware Corporation with an address at 81 West
Main Street, Waterbury, Connecticut 06702 (the
“Company”), promises to pay to the order of
MORRIS SILVERMAN, an individual with a place of
business at MS Management, 790 Estate Drive, Suite 100, Deerfield,
Illinois 60015, ("Payee"), or any subsequent assignee or holder
hereof (Payee or any subsequent assignee or holder hereof sometimes
being hereinafter referred to as "Holder"), the principal sum of
ONE HUNDRED FIVE THOUSAND FOUR HUNDRED FIFTY EIGHT AND 00/100
DOLLARS ($105,458.00) , together with: (i) interest on the
unpaid principal balance of this Note, from the date hereof until
said balance shall have been paid in full, at the rate or rates and
in the manner hereinafter provided; (ii) all costs and expenses,
including reasonable attorneys' fees, incurred in collecting or
attempting to collect the indebtedness evidenced by this Note, or
in any litigation or controversy arising from or connected with
this Note; and (iii) all taxes or duties assessed upon the
indebtedness evidenced by this Note. All amounts owing under
this Note shall be payable in legal tender of the United States of
America.
ARTICLE I
Payment Provisions
Section 1.1- Interest . The principal balance of the
indebtedness evidenced by this Note outstanding from time to time
shall bear interest, from the date hereof until said indebtedness
shall have been paid in full, at the rate of six percent (6%) per
annum. Interest shall be calculated on the daily unpaid
principal balance of the indebtedness evidenced by this Note based
on a 360-day year, provided that interest shall be due for the
actual number of days elapsed during each period for which interest
is being charged. Installments of accrued interest shall be due and
payable commencing on the last day of December, 2005, and
continuing on the last day of each, March, June, September and
December thereafter so long as any of the indebtedness evidenced by
this Note is outstanding.
Section 1.2- Principal . The principal amount hereof and all
accrued interest shall be due and payable on September 28,
2008.
Section 1.3- Payment Days . Any payment under this
Note which is stated to be due on a day other than a "Business Day"
(a day on which banks are open for business in Waterbury,
Connecticut) shall be made on the next succeeding Business Day, and
any such extension of time shall be included in the computation of
the amount of interest to be paid.
Section 1.4- Prepayment . Company shall have the right
to prepay the indebtedness evidenced by this Note at, in whole or
in part, at any time, without prepayment premium or penalty.
Section 1.5- Events of Default . It shall be an Event
of Default hereunder if Company shall fail to make any payment
under this Note when due. Any failure by Holder to exercise
any right under this Note arising or existing as a result of such
Event of Default, or any delay in such exercise, shall not
constitute a waiver of the right to exercise such right at a later
time so long as such Event of Default shall remain uncured, and
shall not constitute a waiver of the right to exercise such right
if any other Event of Default shall occur. The acceptance by
Holder of payment of any sum payable under this Note after the due
date of such payment shall not be a waiver of Holder's right to
require prompt payment when due of all other sums payable under
this Note.
Section 1.6- Remedies . Upon the occurrence of any
Event of Default or upon maturity hereof, the outstanding principal
balance of the indebtedness evidenced by this Note shall, at the
option of Holder, bear interest from the date of occurrence of such
Event of Default or such maturity until collection (including any
period of time occurring after judgment), at the "Default Rate",
being the lower of (a) the highest rate allowed by applicable law,
or (b) a rate per annum equal to two percentage points (2.0%) above
the higher of (A) the rate or rates that otherwise would have been
in effect under this Note, or (B) the prime rate of LaSalle Bank as
the same may vary from time to time. If the Holder shall not
receive the full amount of any installment of interest or principal
due under the terms of this Note within ten (10) days after the due
date of such payment, then Company shall pay to Holder, upon
demand, a late charge equal to five percent (5%) of such
installment, to cover the additional expenses involved in handling
such overdue payment. Such charge shall be in addition to,
and not in lieu of, any other remedy Holder may have and shall be
in addition to, and not in lieu of, Company's obligation to pay any
reasonable fees and charges of any agents or attorneys employed in
the event of any default hereunder.
Section 1.7- Acceleration . Upon the occurrence of any
Event of Default, the indebtedness evidenced by this Note shall, at
the option of and without notice or demand by the Holder, become at
once due and payable. Company shall then pay the Holder, in
addition to any and all other sums and charges due, the entire
principal of and interest accrued on this Note.
Section 1.8- Waivers . Company and each endorser,
guarantor and surety of this Note, and each other person liable or
who shall become liable for all or any part of the indebtedness
evidenced by this Note, hereby:
(a)
waive demand, presentment, protest, notice of protest, notice of
dishonor, diligence in collection, notice of nonpayment and all
notices of a like nature; and
-2-
(b)
to (i) the release, surrender, exchange or substitution of all or
any part of the security for the indebtedness evidenced by this
Note, or the taking of any additional security, (ii) the release of
any or all other persons from liability, whether primary or
contingent, for the indebtedness evidenced by this Note or for any
related obligations, and (iii) the granting of any other
indulgences to any such person.
Each endorser, guarantor and surety of this Note, and each other
person liable or who shall become liable for all or any part of the
indebtedness evidenced by this Note, consent to (i) all renewals,
extensions or modifications of this Note, and (ii) all advances
under this Note. Any such renewal, extension, modification,
advance, release, surrender, exchange, substitution, taking or
indulgence may take place without notice to any such person, and,
whether or not any such notice is given, shall not impair the
liability of any such person.
Section 1.9- Commercial Transaction. COMPANY AND
EACH ENDORSER, GUARANTOR AND SURETY OF THIS NOTE, AND EACH OTHER
PERSON LIABLE OR WHO SHALL BECOME LIABLE FOR ALL OR ANY PART OF THE
INDEBTEDNESS EVIDENCED BY THIS NOTE, HEREBY ACKNOWLEDGE THAT THE
TRANSACTION OF WHICH THIS NOTE IS A PART IS A COMMERCIAL
TRANSACTION, AND TO THE EXTENT ALLOWED UNDER CONNECTICUT GENERAL
STATUTES SECTIONS 52-a TO 52-278n, INCLUSIVE, OR BY OTHER
APPLICABLE LAW, HEREBY WAIVE THEIR RIGHT TO NOTICE AND HEARING WITH
RESPECT TO ANY PREJUDGMENT REMEDY WHICH HOLDER OR ITS SUCCESSORS OR
ASSIGNS MAY DESIRE TO USE.
Section 1.10- Severability . If any one
or more of the provisions of this Note shall for any reason be held
to be invalid, illegal or unenforceable, in whole or in part, or in
any respect, or if any one or more of the provisions of this Note
shall operate, or would prospectively operate, to invalidate this
Note, then such provision or provisions only shall be deemed to be
nul
