EXHIBIT 10.4
PROMISSORY NOTE
FOR VALUE RECEIVED
, the undersigned, INTERLEUKIN
GENETICS, INC., a Delaware corporation, of 135 Beaver Street,
2 nd Floor, Waltham, Massachusetts 02452 (the
“ Company” ), promises to pay to PYXIS
INNOVATIONS INC., a Delaware corporation, of 7575 Fulton Street
East, Ada, Michigan 49355-0001 (“ Payee ”), the
principal amount of
($
) and interest on the unpaid principal balance at the per annum
rate equal to the Index Rate until maturity (adjusted on the first
day of each calendar quarter to the Index Rate in effect on the
date of adjustment) and the Index Rate plus 2% (adjusted on the
first day of each calendar quarter to the Index Rate in effect on
the date of adjustment) percent per annum after
maturity. As used in this Note, “ Index Rate
” means the “Prime Rate” listed in the Money
Rates section of the Wall Street Journal .
The principal of this Note shall be
paid in full on August 16, 2011. Accrued interest shall be
paid on first day of each calendar quarter until the principal
balance shall be paid in full.
Prepayments
. The Company may not prepay
the principal of this Note without the prior written consent of the
Payee, which may be given or withheld in the Payee’s sole
discretion.
Default and
Acceleration . Each
of the following shall be an “event of default” under
this Note: (1) if default occurs in the payment of
principal or interest under this Note or in the payment of any
other indebtedness or obligation that the Company now or in the
future owes to Payee, as and when it shall be or become due and
payable; (2) if default occurs in the performance of any other
obligation to Payee under this Note, the Purchase Agreement (as
defined below), the Stock Purchase Agreement dated March 5, 2003,
the Stock Purchase Agreement dated August 17, 2006, or any other
agreement that has been or in the future is entered into between
the Company and Payee, in each case as may be amended from time to
time, or if there occurs any other event of default under the
Purchase Agreement or any such other agreement; (3) if any warranty
or representation that the Company has made to Payee in any
agreement, or if any financial statement or other document given to
Payee in connection with the transactions contemplated by the
Purchase Agreement, shall have been false in any material respect;
(4) if the Company dissolves, becomes insolvent, or makes an
assignment for the benefit of creditors; (5) if the Company
defaults in the payment of any other material indebtedness or
performance of material obligations owed to any other party or
entity; or (6) a Change of Control of the Company. Upon the
occurrence of any event of default, all or any part of the
indebtedness evidenced by this Note and all or any part of all
other indebtedness and obligations that the Company then owes to
Payee shall, at the option of Payee, become immediately due and
payable without notice or demand. If a voluntary or
involuntary case in bankruptcy, receivership or insolvency shall at
any time be begun by or against the Company or if any levy, writ of
attachment, garnishment, execution or similar process shall be
issued against or placed upon any property of the Company, then all
such indebtedness shall automatically become immediately due and
payable. All or any part of the indebtedness evidenced by
this Note also may become, or may be declared to be, immediately
due and payable under the terms and conditions contained in the
Purchase Agreement or other agreement that has been or in the
future is entered into between the Company and Payee upon the terms
and to the extent provided therein.
“ Change of Control
” shall mean (a) a dissolution or liquidation of the Company,
(b) a merger or consolidation in which the Company is not the
surviving corporation, (c) a merger or share exchange in which the
Company is the surviving corporation but after which the
stockholders of the Company immediately prior to such merger cease
to own at least 51% of the outstanding shares of the Company, (d)
the sale, license, or other transfer of substantially all of the
assets of the Company, or (e) the acquisition, sale, or transfer
(other than a transaction involving primarily shares held by Payee
or its affiliates) of more than 50% of the outstanding shares of
the Company, whether by tender offer, similar transaction, or newly
issued stock (other than to Payee or its affiliates).
Agreement . This Note is given under a certain Note
Purchase Agreement, dated October 23, 2002, as amended between
Payee and the Company (the “ Purchase Agreement
”), and Payee shall have all of the rights and powers set
forth in the Agreement as though they were set forth fully in this
Note.
Conversion
. Payee has the right, at its
option, at any time before the payment in full of this Note, to
convert a portion or all of the balance of this Note into fully
paid and nonassessable common stock of the Company. The
number of shares of common stock into which the balance of this
Note may be converted (“ Conversion Shares ”)
shall be determined by dividing the aggregate principal amount to
be converted, together with all accrued interest to the date of
conversion, by $5.6783 (the “ Conversion Price
”) . The Conversion Price is subject to
adjustment as follows: if the Company (1) pays a dividend or
makes a distribution on its Common Stock in shares of its Common
Stock; (2) subdivides its outstanding shares of Common Stock into a
greater number of shares; (3) combines its outstanding shares of
Common Stock into a smaller number of shares; (4) makes a
distribution on its Common Stock in shares of its capital stock
other than its Common Stock; or (5) issues by r
