|
CONVERTIBLE PROMISSORY NOTE
OFFSHORE SECURITIES SUBSCRIPTION AGREEMENT
|
US $113,747.00
|
DATED: September 30th, 2007
|
OCTUS, INC., (“OCTUS” or “The
Company”) a company organized and existing under the
laws of Nevada, hereby promises to pay to the order of Sasaima
Holdings SA, a corporation domiciled in the Republic of Panama
(“Holder”), the sum of One Hundred Thirteen
Thousand Seven Hundred Forty-seven United States Dollars
(US$113,747.00), together with interest as provided
herein.
|
1.
PAYMENT.
|
All
amounts of principal and interest under this Convertible Promissory
Note (“Note”) shall be due and payable as follows
unless the Holder exercises its right to convert in accordance with
Exhibit A.
|
|
|
Principal:
|
To
be paid in full or in installments, no later than 90 days from the
date the Company receives a written demand from
Holder.
|
|
|
Interest:
|
Shall
accrue and be calculated on the principal balance then outstanding,
at the rate of eight percent (8%) per month.
|
|
Prepayment:
|
The
Company may prepay this Note in whole or in part on any date
without premium or penalty. No partial prepayment shall extend or
postpone the due date of any subsequent payment, unless Holder
shall otherwise first agree in writing. Holder shall have the
continuing and exclusive right to apply or reverse and reapply any
and all payments to any portion of the indebtedness evidenced by
the provisions of this Note.
|
THE
SECURITIES OFFERED HEREBY HAVE NOT BEEN AND WILL NOT BE
REGISTERED, EXCEPT OTHERWISE PROVIDED FOR HEREIN, WITH THE
UNITED STATES SECURITIES AND EXCHANGE COMMISSION OR THE
SECURITIES COMMISSION OF ANY STATE PURSUANT TO AN EXEMPTION
FROM REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED
(“1933 ACT”) AND REGULATION S OF THE RULES AND
REGULATIONS PROMULGATED THEREUNDER, AND MAY NOT BE SOLD OR
OFFERED WITHIN THE UNITED STATES (AS DETAILED IN REGULATION S)
EXCEPT PURSUANT TO REGISTRATION UNDER OR AN EXEMPTION FROM THE
REGISTRATION REQUIREMENTS OF THE 1933 ACT.
2.
CONVERSION.
The
Holder, at its sole option, may convert any part of the
principal and any accrued interest into shares (Shares) of the
Company’s $.001 par value common stock at a conversion
price of US$0.10 per Share (the “Conversion
Price”).
At
any time and from time to time, until payment in full of the
principal of this Note, the Holder is entitled, at its option,
to convert any unpaid portion of the principal amount of the
Note, into shares (the “ Conversion Shares
”) of the Company’s restricted common stock
(“ Common Stock ”), at the Conversion
Price. No fraction of shares or scrip representing fractions
of shares will be issued on conversion, but the number of
shares issuable shall be rounded to the nearest whole
share. To convert this Note, the Holder hereof
shall deliver written notice thereof, substantially in the
form of Exhibit “A” to this Note, with
appropriate insertions (the “ Conversion Notice
”), to the Company at its address as set forth
herein. The date upon which the conversion shall be
effective (the “ Conversion Date ”) shall
be deemed to be the date set forth in the Conversion
Notice.
|
(b)
|
Reservation of Common Stock:
|
The
Company shall reserve and keep available out of its authorized
but unissued shares of Common Stock, solely for the purpose of
effecting the conversion of this Note, such number of shares
of Common Stock as shall from time to time be sufficient to
effect such conversion, based upon the Conversion
Price. If at any time the Company does not have a
sufficient number of Conversion Shares authorized and
available, then the Company shall call and hold a special
meeting of its stockholders within sixty (60) days
of that time for the sole purpose of increasing the number of
authorized shares of Common Stock. Management of
the Company shall vote all of its shares in favor of
increasing the authorized Common Stock.
3.
HOLDER REPRESENTATIONS AND COVENANTS.
In
connection with the purchase and sale of the securities, the
Holder represents and warrants to, and covenants and agrees
with the Company as follows:
|
(i)
|
The
Holder is not a U.S. Person (as defined in Section 902 (o) of
Regulation S) or if the Holder is not a natural person, is not
organized under the laws of any jurisdiction within the United
States, was not formed by a U. S. Person for the purpose of
investing in Regulation S securities and is not otherwise a U.S.
Person. The Holder is not, and on the date of issuance
of this Note by the Company, will not be an affiliate of the
Company;
|
|
(ii)
|
At
the time the buy order was originated, the Holder was outside the
United States and is outside of the United States as of the date of
the execution and delivery of this Note;
|
|
(iii)
|
No
offer to purchase the securities was made by the Holder in the
United States;
|
|
(iv)
|
The
Holder is purchasing the Note under the laws of his or its
jurisdiction of residence and domicile, and the offer and sale of
the Note will not violate the securities or other laws of such
jurisdiction;
|
|
(v)
|
All
offers and sale of this Note by the Holder prior to the end of the
restricted period, as defined by appropriate securities laws
(Restricted Period) of any applicable jurisdiction must be done in
accordance with Rule 903 and Rule 904, as applicable, of Regulation
S or pursuant to registration under the 1933 Act or pursuant to an
exemption from registration.
|
|
(vi)
|
The
transaction contemplated by this Note (a) has not been and will not
be pre-arranged by the Holder with a purchaser located in United
States or a purchaser which is a U.S. Person, and (b) are not and
will not be part of a plan or scheme by the Holder, to evade the
registration provisions of the 1933;
|
|
(vii)
|
The
Holder understands that the securities are not registered either
under the 1933 Act or otherwise and are being offered and sold to
it in reliance on specific exclusions from the registration
requirements of Federal and State securities laws, and that the
Company is relying upon the truth and accuracy of the
representation, warranties, agreements, acknowledgements and
understanding of the Holder set forth herein in order to determine
the applicable of such exclusions and the suitably of the Holder
and any purchaser from the Holder to acquire the Note;
|
|
(viii)
|
The
Holder shall take all reasonable steps to ensure its compliance
with Regulation S and shall promptly send to each purchaser who
acts as a distributor, dealer or person receiving a selling
commission, fee or other remuneration with respect to any of the
securities, who purchases prior to the expiration of the Restricted
Period referred to in Section 2(a)(v) above, a confirmation or
other notice to the purchaser stating that the purchaser is subject
to the same restrictions on offers and sales as the
Holder;
|
|
(ix)
|
The
Holder has not conducted or permitted and shall not conduct or
permit on its behalf any “directed selling efforts” as
that term is defined in Rule 902(b) of Regulation S; nor has the
Holder conducted any general solicitation relating to the offer and
sale of any of the securities in the United States or
elsewhere;
|
|
(x)
|
The
Holder has the full right, power and authority to enter into this
Note and to consummate the transactions contemplated
herein. This Note has been duly authorized, valid
executed and delivered on behalf of the Holder and is a valid and
binding agreement in accordance with its terms, subject to general
principals of equity and bankruptcy or other laws affecting the
enforcement of creditors’ rights generally;
|
|
(xi)
|
The
execution and delivery of this Note and the consummation of the
purchase of the securities, and the transactions contemplated by
this Note do not and will not conflict with or result in a breach
by the Holder of any of the terms or provisions of, or constitute a
default under, the articles of incorporation or by-laws (or similar
constitutive documents) of the Holder.
|
|
(xii)
|
All
invitations, offers and sales of or with respect to the Note, by
the Holder and any distribution by the Holder of any documents
relating to any offer by it of any of the securities will be in
compliance with applicable laws and regulations and will be made in
such a manner that no prospectus need be filed and no other filing
need be made by the Company with any regulatory authority or stock
exchange in any country or any political sub-division of any
country; and
|
|
(xiii)
|
The
Holder will not make any offer or sale of the Note by any means
which would not comply with the law and regulations of the
territory in which su
|
|
