Exhibit 10.2
THE
SECURITIES REPRESENTED BY THIS NOTE HAVE NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED, OR APPLICABLE STATE
SECURITIES LAWS. THE SECURITIES HAVE BEEN ACQUIRED FOR
INVESTMENT AND MAY NOT BE OFFERED FOR SALE, SOLD, TRANSFERRED
OR ASSIGNED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT
FOR THE SECURITIES UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR
APPLICABLE STATE SECURITIES LAWS, OR AN OPINION OF COUNSEL IN A
FORM REASONABLY SATISFACTORY TO THE ISSUER THAT REGISTRATION
IS NOT REQUIRED UNDER SAID ACT OR APPLICABLE STATE SECURITIES LAWS
OR UNLESS SOLD PURSUANT TO RULE 144 UNDER SAID ACT.
TERM NOTE
June 13, 2008
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Jersey City, New
Jersey
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$1,175,000
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FOR VALUE RECEIVED
, the undersigned,
ISONICS CORPORATION , a California corporation (the “
Company ”), promises to pay YA GLOBAL INVESTMENTS,
LP (the “ Lender ”) at 101 Hudson Street,
Suite 3700, Jersey City, New Jersey 07302 or other address as
the Lender shall specify in writing, the principal sum of
One Million One Hundred
Seventy-Five Thousand Dollars ($1,175,000) and interest
at the annual rate of thirteen percent (13%) on the unpaid balance
pursuant to the following terms of this Term Note (the “
Note ”):
1.
Principal and Interest
. For value received, the Company hereby promises to pay
to the order of the Lender on October 31, 2009 (“
Maturity Date ”) in lawful money of the United States
of America and in immediately available funds the principal sum of
One Million One Hundred Seventy-Five Thousand Dollars ($1,175,000),
together with interest on the unpaid principal of this note at the
rate of thirteen percent (13%) per year (computed on the basis
of a 365-day year and the actual days elapsed) from the date of
this Note until paid.
2.
Right of Prepayment .
The Company at its option shall have the right to prepay, with ten
(10) business days advance written notice (a “
Prepayment Notice ”), any amount of outstanding
principal of the Note (a “ Company Prepayment
”). The Prepayment Notice must state the portion of the
Note (including interest) that the Company wishes to pay (the
“ Prepayment Amount ”). Prepayment Notices
are irrevocable. If the Company elects a prepayment, on the
tenth (10 th ) business day following the Lender’s
receipt of the Prepayment Notice, the Company shall pay to the
Lender, by wire transfer of immediately available funds, an amount
in cash equal to 120% of the principal portion of the Prepayment
Amount plus accrued and unpaid interest.
3.
Waiver and Consent .
To the fullest extent permitted by law and except as otherwise
provided herein, the Company waives demand, presentment, protest,
notice of dishonor, suit against or joinder of any other person,
and all other requirements necessary to charge or hold the Company
liable with respect to this Note.
4.
Costs, Indemnities and
Expenses . In the event of default as described
herein, the Company agrees to pay all reasonable fees and costs
incurred by the Lender in collecting or securing or attempting to
collect or secure this Note, including reasonable attorneys’
fees and expenses, whether or not involving litigation, collecting
upon any judgments and/or appellate or bankruptcy
proceedings. The Company agrees to pay any documentary stamp
taxes, intangible taxes or other taxes which may now or hereafter
apply to this Note or any payment made in respect of this Note, and
the Company agrees to indemnify and hold the Lender harmless from
and against any liability, costs, attorneys’ fees, penalties,
interest or expenses relating to any such taxes, as and when the
same may be incurred.
5.
Event of Default . An
“ Event of Default ”, wherever used herein,
means any one of the following events (whatever the reason and
whether it shall be voluntary or involuntary or effected by
operation of law or pursuant to any judgment, decree or order of
any court, or any order, rule or regulation of any
administrative or governmental body):
(i)
the Company’s failure to pay to the Lender any amount of
principal, interest, or other amounts when and as due under this
Note (including, without limitation, the Company’s failure to
pay any redemption payments or amounts hereunder) or any other
Transaction Document (as defined in the Securities Purchase
Agreement (the “ Securities Purchase Agreement
”), dated the date hereof, between Company and Lender);
(ii)
The Company shall fail to observe or perform any other covenant,
agreement or warranty contained in, or otherwise commit any breach
or default of any provision of this Note, any of the other
Transaction Documents, or any other note issued, or shall
hereinafter be issued to the Lender or its affiliates which is not
cured within the time prescribed;
(iii) The
Company or any subsidiary of the Company shall commence, or there
shall be commenced against the Company or any subsidiary of the
Company under any applicable bankruptcy or insolvency laws as now
or hereafter in effect or any successor thereto, or the Company or
any subsidiary of the Company commences any other proceeding under
any reorganization, arrangement, adjustment of debt, relief of
debtors, dissolution, insolvency or liquidation or similar law of
any jurisdiction whether now or hereafter in effect relating to the
Company or any subsidiary of the Company or there is commenced
against the Company or any subsidiary of the Company any such
bankruptcy, insolvency or other proceeding which remains
undismissed for a period of 61 days; or the Company or any
subsidiary of the Company is adjudicated insolvent or bankrupt; or
any order of relief or other order approving any such case or
proceeding is entered; or the Company or any subsidiary of the
Company suffers any appointment of any custodian, private or court
appointed receiver or the like for it or any substantial part of
its property which continues undischarged or unstayed for a period
of sixty one (61) days; or the Company or any subsidiary of the
Company makes a general assignment for the benefit of creditors; or
the Company or any subsidiary of the Company shall fail to pay, or
shall state that it is unable to pay, or shall be unable to pay,
its debts generally as they become due; or the Company or any
subsidiary of the Company shall call a meeting of its creditors
with a view to arranging a composition, adjustment or restructuring
of its debt; or the Company or any subsidiary of the Company shall
by any act or failure to act expressly indicate its consent to,
approval of or acquiescence in any of the foregoing; or any
corporate or other action is taken by
the
Company or any subsidiary of the Company for the purpose of
effecting any of the foregoing;
(iv) The
Company or any subsidiary of the Company shall default in any of
its obligations under any other promissory note, or any mortgage,
credit agreement or other facility, indenture agreement, factoring
agreement, debenture or other instrument under which there may be
issued, or by which there may be secured or evidenced any
indebtedness for borrowed money or money due under any long term
leasing or factoring arrangement of the Company or any subsidiary
of the Company in an amount exceeding $100,000, whether such
indebtedness now exists or shall hereafter be created and such
default shall result in such indebtedness becoming or being
declared due and payable prior to the date on which it would
otherwise become due and payable;
(v)
If the Common Stock is quoted or listed for trading on any of the
following and it ceases to be so quoted or listed for trading and
shall not again be quoted or listed for trading on any Primary
Market within five (5) Trading Days of such delisting:
(a) the American Stock Exchange, (b) New York Stock
Exchange, (c) the Nasdaq Global Market, (d) the Nasdaq
Capital Market, or (e) the Nasdaq OTC Bulletin Board
(“OTCBB”) (each, a “Primary Market”);
(vi) The
Company or any subsidiary of the Company shall be a party to any
Change of Control Transaction unless in connection with such Change
of Control Transaction this Note is retired (“ Change of
Control Transaction ” means the occurrence of (a) an
acquisition after the date hereof by an individual or legal entity
or “group” (as described in
Rule 13d-5(b)(1) promulgated under the Exchange Act) of
effective control (whether through legal or beneficial ownership of
capital stock of the Company, by contract or otherwise) of in
excess of fifty percent (50%) of the voting securities of the
Company (except that the acquisition of voting securities by the
Lender or any other current holder of convertible securities of the
Company shall not constitute a Change of Control Transaction for
purposes hereof), (b) a replacement at one time or over time
of more than one-half of the members of the board of directors of
the Company which is not approved by a majority of those
individuals who are members of the board of directors on the date
hereof (or by those individuals who are serving as members of the
board of directors on any date whose nomination to the board of
directors was approved by a majority of the members of the board of
directors who are members on the date hereof), (c) the merger,
consolidation or sale of fifty percent (50%) or more of the assets
of the Company or any subsidiary of the Company in one or a series
of related transactions with or into another entity, or
(d) the execution by the Company of an agreement to which the
Company is a party or by which it is bound, providing for any of
the events set forth above in (a), (b) or (c));
(vii) To the extent that the
Company is eligible to file a Registration Statement, the Company
shall fail to file the Registration Statement with the Commission,
or the Registration Statement shall not have been declared
effective by the Commission, in each case within thirty (30) days
of the periods set forth in the Registration Rights Agreement
(“ Registration Rights Agreement ”) dated
June 13, 2008 among the Company and each Buyer listed on
Schedule I attached thereto, or, while the Registration Statement
is required to be maintained effective pursuant to the terms of the
Registration Rights Agreement, the effectiveness of the
Registration Statement lapses for any reason (including, without
limitation, the issuance of a stop order) or is unava
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