Unassociated Document


    Exhibit
      10.6

     

    
      THIS
        PROMISSORY NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933,
        AS
        AMENDED. NO SALE OR DISPOSITION MAY BE EFFECTED EXCEPT IN COMPLIANCE WITH
        RULE
        144 UNDER SAID ACT OR AN EFFECTIVE REGISTRATION STATEMENT RELATED THERETO
        OR AN
        OPINION OF COUNSEL FOR THE HOLDER SATISFACTORY TO THE COMPANY THAT SUCH
        REGISTRATION IS NOT REQUIRED UNDER THE ACT OR RECEIPT OF A NO-ACTION LETTER
        FROM
        THE SECURITIES AND EXCHANGE COMMISSION.

       

      SERVICES
        PROMISSORY NOTE 

       

      
        
          	
                  See
                    Schedule I

                	
                  July
                    1, 2007

                
	 	
                  Bothell,
                    Washington

                


        

      

       

      For
        value
        received Plexera Bioscience LLC,
        a
        Delaware limited liability company (“Payor”
        or the “Company”)
        promises to pay to Lumera Corporation, a Delaware corporation, or
        its
        assigns (the “Holder”)
        the
        principal sum as set forth on Schedule I with interest on the outstanding
        principal amount at the rate of 8.0% per annum, compounded annually (the
        “Interest
        Rate”).
        With
        respect to any amounts listed on Schedule I, interest shall commence with
        the
        corresponding date for such amount and shall continue on the outstanding
        principal until paid in full or converted. Interest shall be computed on
        the
        basis of a year of 365 days for the actual number of days elapsed.

       

      1.  Principal.
        The
        principal amount due under this Note shall be the amount set forth on Schedule
        I. The Holder may amend Schedule I from time to time to reflect the amounts
        due
        to it pursuant to services provided to the Company under the Intercompany
        Services Agreement between the Holder and the Company, effective as of July
        1,
        2007.

       

      2.  Payment.
        All
        payments of interest and principal shall be in lawful money of the United
        States
        of America. All payments shall be applied first to accrued interest, and
        thereafter to principal.

       

      3.  Maturity.
        Unless
        this Note has been converted in accordance with the terms of Section 5 below,
        the entire outstanding principal balance and all unpaid accrued interest
        shall
        become fully due and payable on July 1, 2010 (the “Maturity
        Date”).

       

      4.  Prepayment.
        This
        Note may not be prepaid, in whole or part, without the prior written consent
        of
        the Holder.

       

      5.  Conversion.

       

      (a)
          Optional
        Conversion.
        If, at
        any time during which this Note remains outstanding and prior to the Maturity
        Date, the Company offers and issues (the "Offering"),
        a
        series of new equity securities in a Qualified Financing, then this Note,
        including any accrued but unpaid interest thereon, will be convertible, at
        the
        option of the Holder, into equity securities of the Company upon closing
        of such
        Offering at a price per share equal to the price per share of the equity
        securities sold in such Offering and subject to the same rights, preferences,
        privileges and obligations attached to shares of the equity securities issued
        in
        the Offering at the time of such conversion. If the Offering is a Qualified
        Financing, and the Holder elects not to convert this Note into Equity Securities
        upon such Qualified Financing, the Holder may elect, upon written notice
        to the
        Payor, to accelerate this Note, in which case all principal and unpaid accrued
        interest shall become immediately due and payable upon consummation of such
        Qualified Financing and shall be paid to the Holder directly from the proceeds
        of such Offering at the closing thereof. For
        purposes of this Note, a “Qualified
        Financing”
shall
        be either (a) a new investment of or a series of new investments that aggregate
        to at least [$5,000,000] cash by any person or entity (other than the members
        of
        the Company as of the date of this note) or (b) an initial public offering
        of
        securities of the Company registered under the Securities Act raising at
        least
        [$5,000,000].  

       

      
        
          
          

        

        
          
          

          
            

          

        

        
          
          

        

      

       

      (b)  Conversion
        Procedure.
        

       

      (i)
        Upon
        any conversion pursuant to Section 5(a), the Company shall take all measures
        necessary or appropriate to permit such conversion to occur as promptly as
        practicable and otherwise comply with all of its obligations hereunder,
        including, but not limited to, (A) calling a special meeting of the Board
        of
        Directors and/or stockholders of the Company to authorize an amendment to
        the
        Company’s Certificate of Incorporation authorizing the applicable class or
        series of Company capital stock issuable upon conversion of the Note and,
        if
        necessary, the additional capital stock issuable upon conversion of the
        aforementioned capital stock, (B) filing such amendment with the Secretary
        of
        State of the State of Delaware, and (C) taking any other action necessary
        or appropriate to consummate the transactions contemplated hereby and to
        permit
        the conversion to occur as promptly as practicable. If at any time the number
        of
        authorized but unissued shares of Company capital stock are insufficient
        to
        permit the conversions contemplated by this Section 5, the Company shall
        take
        such actions as may be necessary to increase the Company’s authorized,
        unreserved and unissued shares of the applicable class or series of capital
        stock to such number of shares as shall be sufficient for such conversion.
        Upon
        delivery, all shares issued pursuant to this Section 5 shall be duly and
        validly
        issued, fully paid and non-assessable.

       

      (ii)
          No
        fractional shares or interest of capital stock of the Company, or scrip
        representing fractional shares or interests, shall be issued upon conversion
        of
        the Note pursuant to this Section 5. Any principal amount and accrued but
        unpaid
        interest not converted into the capital stock because of the restrictions
        of the
        preceding sentence shall be paid by the Company to the Holder in immediately
        available funds on the date of the conversion. If this Note is converted
        into
        capital stock of the Company, this Note shall be treated by the Company as
        surrendered for cancellation and exchanged into such capital stock and this
        Note
        will be deemed, for all purposes, to be canceled on the books of the Company
        and
        the obligation represented by this Note so terminated. The Company shall,
        as
        soon as practicable after receipt of this Note marked cancelled, issue and
        deliver to the Holder at its designated address a certificate or certificates
        for the number of shares of capital stock to which the Holder shall be entitled
        upon such conversion (bearing such legends as are required by applicable
        state
        and Federal securities laws in the opinion of counsel to the Company), together
        with immediately available funds payable to the Holder for any cash amounts
        payable as described in this clause (ii). 

       

      
        
          
          

        

        
          
          

          
            

          

        

        
          
          

        

      

       

      6.  Liquidity
        Event.
        If the
        Company shall determine to engage in any transaction which would result in
        a
        Liquidity Event (defined below) at any time while this Note remains outstanding,
        the Company shall deliver to the Holder written notice thereof (the
“Company
        Liquidity Notice”),
        including a summary of the material terms of such Liquidity Event to the
        Holder
        not less than 15 days prior to the consummation of such Liquidity Event (or
        such
        shorter period as may be approved by the Holder). Upon the consummation of
        a
        Liquidity Event and delivery by the Holder of this Note, the Holder may direct
        the Company to pay the Holder, in cash, an amount equal to the outstanding
        principal amount of this Note, plus accrued but unpaid interest thereon.
        The
        term “Liquidity
        Event”
means
        the consummation of a sale of all or substantially all of the assets of the
        Company, or a consolidation or merger of the Company, or other transaction
        or
        series of related transactions, in either case resulting in the disposition
        of
        more than fifty percent (50%) of the voting power of the Company; provided,
        however,
        that a
        Qualified Financing shall not, in any event, be deemed to be a Liquidity
        Event.

       

      7.  Events
        of Default.
        For
        purposes of this Note, “LIBOR” shall mean the London Inter Bank Offered Rate. If
        there shall be any Event of Default hereunder upon the declaration of the
        Holder, at the option of the Holder and upon written notice to the Payor,
        this
        Note shall (a) remain outstanding, and the Interest Rate shall increase (subject
        to applicable law) to LIBOR plus
        8%,
        compounded annually, (b) accelerate, in which case all principal and unpaid
        accrued interest shall become due and payable, or (c) if a Qualified Financing
        has occurred, convert into equity securities in accordance with Section 5.
        The
        occurrence of any one or more of the following shall constitute an “Event
        of Default”:

       

      (a)  Payor
        fails to pay timely any of the principal amount due under this Note on the
        date
        the same becomes due and payable or any accrued interest or other amounts
        due
        under this Note on the date the same becomes due and payable;

       

      (b)  Payor
        defaults in its performance of any covenant under the Intercompany Services
        Agreement, effective as of July 1, 2007;

       

      (c)  Payor
        files any petition or action for relief under any bankruptcy, reorganization,
        insolvency or moratorium law or any other law for the relief of, or relating
        to,
        debtors, now or hereafter in effect, or makes any assignment for the benefit
        of
        creditors or takes any corporate action in furtherance of any of the foregoing;
        

       

      (d)  An
        involuntary petition is filed against Payor (unless such petition is dismissed
        or discharged within 60 days) under any bankruptcy statute now or hereafter
        in
        effect, or a custodian, receiver, trustee, assignee for the benefit of creditors
        (or other similar official) is appointed to take possession, custody or control
        of any property of Payor; or

       

      (e)  Default
        in payment of indebtedness for money borrowed in excess of $500,000 that
        gives
        the holder of that debt the right to accelerate payment. 

       

      8.  Costs.
        In the
        event of any default hereunder, Payor shall pay all reasonable attorneys’ fees
        and court costs incurred by the Holder in enforcing and collecting this
        Note.

       

      9.  Waiver
        of Demand.
        Payor
        hereby waives demand, notice, presentment, protest and notice of
        dishonor.

       

      
        
          
          

        

        
          
          

          
            

          

        

        
          
          

        

      

       

      10.  Governing
        Law.
        This
        Note shall be governed by and construed under the laws of the State of Delaware
        as such laws are applied to agreements among Delaware residents entered into
        and
        performed entirely within the State of Delaware, without reference to the
        conflict of laws provisions thereof. 

       

      11.  Seniority.
        The
        indebtedness evidenced by this Note is senior in right of payment to all
        of the
        Company’s other indebtedness for money borrowed after the date hereof.


       

      12.  Amendment
        and Waiver.
        Any
        term of this Note may be amended or waived with the written consent of Payor
        and
        the Holder. 

       

      13.  Notices.
        All
        notices and other communications provided for herein shall be in writing
        and
        shall be deemed to have been duly given, delivered and received: (a) upon
        personal delivery to the party to be notified, (b) when sent by confirmed
        telex, electronic mail or facsimile if sent during normal business hours
        of the
        recipient, if not, then on the next business day, (c)  5 days after having
        been sent by registered or certified mail, return receipt requested, postage
        prepaid, or (d) 1 day after deposit with a nationally recognized overnight
        courier, specifying next day delivery, with written verification of receipt.
        

       

      (a)               If
        to the
        Holder:

       

      19910
        North Creek Parkway

      Bothell,
        Washington 98011

      (425)
        415-6900

      Attention:
        Chief Financial Officer

       

      (b)          
        If
        to the
        Company:

       

      19910
        North Creek Parkway

      Bothell,
        Washington 98011

      (425)
        415-6900

      Attention:
        Chief Financial Officer

       

      with
        a
        copy to:

       

      Ropes
        & Gray LLP

      One
        International Place

      Boston,
        MA 02110

      Attn: Christopher
        A. Austin, Esq.

      Fax: (617)
        951-7000

       

      14.  Transfers.
        This
        Note, and all rights hereunder, are transferable, in whole or in part by
        the
        Holder thereof.

      

        
          
            
            

          

          
            
            

            
              

            

          

          
            
            

          

        

      

       

      IN
        WITNESS WHEREOF, the Company has executed this Note as of the date first
        written
        above.

       

      
        	 	 	 
	 	Plexera Bioscience
                LLC
	 
 	 
 	 
 
	 	By:  	_______________________________
	 	 	Name:
                ______________________________
	 	Title:
                _______________________________


      

      

        [Signature
          Page to the Services Note]

      


      
        
          
          

        

        
          
          

          
            

          

        

        
          
          

        

      


      Schedule
        I