Promissory Note



 Exhibit 10.2 
  
 THIS NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR ANY STATE SECURITIES LAWS. THIS NOTE MAY NOT BE SOLD,
OFFERED FOR SALE, PLEDGED OR HYPOTHECATED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT AS TO THIS NOTE UNDER SAID ACT AND ANY APPLICABLE STATE SECURITIES LAWS OR AN OPINION OF COUNSEL REASONABLY SATISFACTORY TO VITALITY SYSTEMS, INC. THAT
SUCH REGISTRATION IS NOT REQUIRED. 
  
 TERM NOTE

  
 FOR VALUE RECEIVED, VITALITY SYSTEMS, INC., a Florida
corporation (the “Company”) promises to pay to Vertical Health Solution, Inc., a Florida corporation (the “Holder”) or its registered assigns or successors in interest, the sum of Three Hundred Thousand Dollars ($300,000),
together with any accrued and unpaid interest hereon, on December 18, 2008 (the “Maturity Date”) if not sooner paid. 
  
 ARTICLE I 
 INTEREST RATE AND
AMORTIZATION 
  
 1.1 Interest Rate. Subject to Sections
4.2 and 5.10, interest payable on the outstanding principal amount of this Note (the “Principal Amount”) shall accrue at a rate per annum equal to 7%. Interest shall be (i) calculated on the basis of a 360 day year, and
(ii) payable monthly, in arrears, commencing on the first business day of each consecutive calendar month hereafter through and including the Maturity Date, and on the Maturity Date, whether by acceleration or otherwise. 
  
 1.2 Principal Payments. Amortizing payments of the aggregate principal
amount outstanding under this Note at any time (the “Principal Amount”) shall be made by the Company commencing on the first business day of each consecutive calendar month hereafter through and including the Maturity Date, and on
the Maturity Date, whether by acceleration or otherwise (each, an “Amortization Date”). Subject to Article III below, commencing on the first Amortization Date, the Company shall make monthly payments to the Holder on each
Amortization Date, each such payment in the amount of $9,263.13 together with any accrued and unpaid interest on such portion of the Principal Amount plus any and all other unpaid amounts which are then owing under this Note (collectively, the
“Monthly Amount”). Any outstanding Principal Amount together with any accrued and unpaid interest and any and all other unpaid amounts which are then owing by the Company to the Holder under this Note shall be due and payable on the
Maturity Date. 
  
 ARTICLE II 
 OPTIONAL REDEMPTION; ISSUANCE OF NEW NOTE 
  
 2.1 Optional Redemption in Cash. The Company may prepay this Note (“Optional Redemption”) by paying to the Holder a sum of money
equal to one hundred percent (100%) of the Principal Amount outstanding at such time together with accrued but unpaid interest thereon and any and all other sums due, accrued or payable to the Holder arising under this Note (the
“Redemption Amount”) outstanding on the Redemption Payment Date (as 








 
defined below). In the event the Company fails to pay the Redemption Amount on the Redemption Payment Date as set forth herein, then such Redemption Notice
will be null and void. 
  
 2.2 Issuance of New Note. Upon
any repayment of a portion of this Note, a new Note containing the same date and provisions of this Note shall, at the request of the Holder, be issued by the Company to the Holder for the principal balance of this Note and interest which shall not
have been paid. 
  
 ARTICLE III 
 [INTENTIONALLY OMITTED] 
  
 ARTICLE IV 
 EVENTS OF DEFAULT

  
 4.1 Events of Default. The occurrence of any of the
following events set forth in this Section 4.1 shall constitute an event of default (“Event of Default”) hereunder, after which the holder may demand payment in full of all amounts due hereunder: 
  
 (a) Failure to Pay. The Company fails to pay when due any
installment of principal, interest or other fees hereon in accordance herewith, or the Company fails to pay any of the other obligations when due, and, in any such case, such failure shall continue for a period of ten (10) days following the
date upon which any such payment was due. 
  
 (b) Breach of
Covenant. The Company breaches any covenant or any other term or condition of this Note in any material respect and such breach, if subject to cure, continues for a period of fifteen (15) days after the occurrence thereof. 
  
 (c) Breach of Representations and Warranties. Any representation,
warranty or statement made or furnished by the Company in this Note shall at any time be false or misleading in any material respect on the date as of which made or deemed made. 
  
 (d) Bankruptcy. The Company or any of its Subsidiaries shall (i) apply for, consent to or suffer to exist the
appointment of, or the taking of possession by, a receiver, custodian, trustee or liquidator of itself or of all or a substantial part of its property, (ii) make a general assignment for the benefit of creditors, (iii) commence a voluntary
case under the federal bankruptcy laws (as now or hereafter in effect), (iv) be adjudicated a bankrupt or insolvent, (v) file a petition seeking to take advantage of any other law providing for the relief of debtors, (vi) acquiesce
to, without challenge within ten (10) days of the filing thereof, or failure to have dismissed, within thirty (30) days, any petition filed against it in any involuntary case under such bankruptcy laws, or (vii) take any action for
the purpose of effecting any of the foregoing; 
  
 (e)
Judgments. Attachments or levies in excess of $100,000 in the aggregate are made upon the Company or any of its Subsidiary’s assets or a judgment is rendered against the Company’s property involving a liability of more than $100,000
which shall not have been vacated, discharged, stayed or bonded within sixty (60) days from the entry thereof; 
  

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 (f) Insolvency. The Company or any of its Subsidiaries shall admit in writing its inability, or
be generally unable, to pay its debts as they become due or cease operations of its present business; 
  
 ARTICLE V 
 MISCELLANEOUS 
  
 5.1 Cumulative Remedies. The remedies under this Note shall be
cumulative. 
  
 5.2 Failure or Indulgence Not Waiver. No
failure or delay on the part of the Holder hereof in the exercise of any power, right or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any such power, right or privilege preclude other or further
exercise thereof or of any other right, power or privilege. All rights and remedies existing hereunder are cumulative to, and not exclusive of, any rights or remedies otherwise available. 
  
 5.3 Notices. All notices required or permitted hereunder shall be in writing and shall be deemed effectively given:

  
 (a) upon personal delivery to the party to be notified;

  
 (b) when sent by confirmed facsimile if sent during normal
business hours of the recipient, if not, then on the next business day; 
  
 (c) three (3) business days after having been sent by registered or certified mail, return receipt requested, postage prepaid; or 
  
 (d) one (1) day after deposit with a nationally recognized overnight courier, specifying next day delivery, with written verification of receipt.

  
 All communications shall be sent to the last registered address of the other
party hereto, or at such other address as the Company or the Purchaser may designate by written notice to the other parties hereto given in accordance herewith. 
  

5.4 Amendment Provision. The term “Note” and all references thereto, as used throughout this instrument, shall mean this instrument as
originally executed, or if later amended or supplemented, then as so amended or supplemented, and any successor instrument as such successor instrument may be amended or supplemented. 
  
 5.5 Assignability. This Note shall be binding upon the Company and its successors and assigns, and shall inure to the
benefit of the Holder and its successors and assigns. The Company may not assign any of its obligations under this Note without the prior written consent of the Holder, any such purported assignment without such consent being null and void.

  

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 5.6 Cost of Collection. In case of any Event of Default under this Note, the Company shall pay the
Holder reasonable costs of collection, including reasonable attorneys’ fees. 
  
 5.7 Governing Law, Jurisdiction and Waiver of Jury Trial. 
  
 (a) THIS NOTE SHALL BE GOVERNED BY AND CONSTRUED AND ENFORCED IN ACCORDANCE WITH THE LAWS OF THE STATE OF FLORIDA, WITHOUT REGARD TO PRINCIPLES OF
CONFLICTS OF LAW. 
  
 (b) THE COMPANY HEREBY CONSENTS AND AGREES
THAT THE STATE OR FEDERAL COURTS LOCATED IN FLORIDA SHALL HAVE EXCLUSIVE JURISDICTION TO HEAR AND DETERMINE ANY CLAIMS OR DISPUTES BETWEEN THE COMPANY, ON THE ONE HAND, AND THE HOLDER, ON THE OTHER HAND, PERTAINING TO THIS NOTE OR TO ANY MATTER
ARISING OUT OF OR RELATED TO THIS NOTE; PROVIDED, THAT THE COMPANY ACKNOWLEDGES THAT ANY APPEALS FROM THOSE COURTS MAY HAVE TO BE HEARD BY A COURT LOCATED OUTSIDE OF FLORIDA. THE COMPANY EXPRESSLY SUBMITS AND CONSENTS IN ADVANCE TO SUCH
JURISDICTION IN ANY ACTION OR SUIT COMMENCED IN ANY SUCH COURT, AND THE COMPANY HEREBY WAIVES ANY OBJECTION WHICH IT MAY HAVE BASED UPON LACK OF PERSONAL JURISDICTION, IMPROPER VENUE OR FORUM NON CONVENIENS. THE COMPANY HEREBY WAIVES PERSONAL
SERVICE OF THE SUMMONS, COMPLAINT AND OTHER PROCESS ISSUED IN ANY SUCH ACTION OR SUIT AND AGREES THAT SERVICE OF SUCH SUMMONS, COMPLAINT AND OTHER PROCESS MAY BE MADE BY REGISTERED OR CERTIFIED MAIL ADDRESSED TO THE COMPANY AT THE ADDRESS SET FORTH
IN THE PURCHASE AGREEMENT AND THAT SERVICE SO MADE SHALL BE DEEMED COMPLETED UPON THE EARLIER OF THE COMPANY’S ACTUAL RECEIPT THEREOF OR THREE (3) DAYS AFTER DEPOSIT IN THE U.S. MAILS, PROPER POSTAGE PREPAID. 
  
 (c) THE COMPANY DESIRES THAT ITS DISPUTES BE RESOLVED BY A JUDGE APPLYING
SUCH APPLICABLE LAWS. THEREFORE, TO ACHIEVE THE BEST COMBINATION OF THE BENEFITS OF THE JUDICIAL SYSTEM AND OF ARBITRATION, THE COMPANY HERETO WAIVES ALL RIGHTS TO TRIAL BY JURY IN ANY ACTION, SUIT, OR PROCEEDING BROUGHT TO RESOLVE ANY DISPUTE,
WHETHER ARISING IN CONTRACT, TORT, OR OTHERWISE BETWEEN THE HOLDER AND THE COMPANY ARISING OUT OF, CONNECTED WITH, RELATED OR INCIDENTAL TO THE RELATIONSHIP ESTABLISHED BETWEEN THEM IN CONNECTION WITH THIS NOTE, OR THE TRANSACTIONS RELATED HERETO OR
THERETO. 
  
 5.8 Severability. In the event that any
provision of this Note is invalid or unenforceable under any applicable statute or rule of law, then such provision shall be deemed inoperative to the extent that it may conflict therewith and shall be deemed modified to conform with such statute or
rule of law. Any such provision which may prove invalid or unenforceable under any law shall not affect the validity or enforceability of any other provision of this Note. 
  

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 5.9 Maximum Payments. Nothing contained herein shall be deemed to establish or require the payment
of a rate of interest or other charges in excess of the maximum permitted by applicable law. In the event that the rate of interest required to be paid or other charges hereunder exceed the maximum rate permitted by such law, any payments in excess
of such maximum rate shall be credited against amounts owed by the Company to the Holder and thus refunded to the Company. 
  
 5.10 Construction. Each party acknowledges that its legal counsel participated in the preparation of this Note and, therefore, stipulates that the
rule of construction that ambiguities are to be resolved against the drafting party shall not be applied in the interpretation of this Note to favor any party against the other. 
  
 [Balance of page intentionally left blank; signature page follows] 
  

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 IN WITNESS WHEREOF, the Company has caused this Term Note to be signed in its name effective as of
this 18th day of January 2006. 
  

			
	VITALITY SYSTEMS, INC.
		
	 By:
	 	 /s/ BRIAN T. NUGENT


	 Name:
	 	 Brian T. Nugent

	 Title:
	 	 President



  
 WITNESS: 
  
  

  

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 ANNEX A 
  
 DEFINITIONS 
  
 “Person” means any individual, sole proprietorship, partnership, limited liability partnership, joint venture, trust, unincorporated
organization, association, corporation, limited liability company, institution, public benefit corporation, entity or government (whether federal, state, county, city, municipal or otherwise, including any instrumentality, division, agency, body or
department thereof), and shall include such Person’s successors and assigns. 
  
 “Subsidiary” means, with respect to any Person, (i) any other Person whose shares of stock or other ownership interests having ordinary voting power (other than stock or other ownership interests
having such power only by reason of the happening of a contingency) to elect a majority of the directors or other governing body of such other Person, are owned, directly or indirectly, by such Person or (ii) any other Person in which such
Person owns, directly or indirectly, more than 50% of the equity interests at such time. 
  

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