Exhibit 10.4


 


PROMISSORY NOTE


 


	
  $1,250,000.00

  	
  October 20, 2008

  



 


FOR
VALUE RECEIVED, the undersigned (the “Borrower”), promises to pay to the order
of Silicon Valley Bank (“Bank”), at such place as the holder hereof may
designate, in lawful money of the United States of America, the aggregate
unpaid principal amount of all advances (“Advances”) made by Bank to Borrower,
up to a maximum principal amount of One Million Two Hundred Fifty Thousand
Dollars ($1,250,000.00), plus interest, fees and finance charges on the
aggregate unpaid principal amount of such Advances, at the rates and in
accordance with the terms of the Amended and Restated Export-Import Bank Loan
and Security Agreement between Borrower and Bank of even date herewith, as
amended from time to time (the “Loan Agreement”).  The entire principal amount and all accrued
interest shall be due and payable on October 19, 2009, or on such earlier date,
as provided for in the Loan Agreement.


 


Borrower
irrevocably waives the right to direct the application of any and all payments
at any time hereafter received by Bank from or on behalf of Borrower, and
Borrower irrevocably agrees that Bank shall have the continuing exclusive right
to apply any and all such payments against the then due and owing obligations of
Borrower as Bank may deem advisable.  In
the absence of a specific determination by Bank with respect thereto, all
payments shall be applied in the following order: (a) then due and payable
fees and expenses; (b) then due and payable interest payments and
mandatory prepayments; and (c) then due and payable principal payments and
optional prepayments.


 


Bank
is hereby authorized by Borrower to endorse on Bank’s books and records each
Advance made by Bank under this Promissory Note and the amount of each payment
or prepayment of principal of each such Advance received by Bank; it being
understood, however, that failure to make any such endorsement (or any errors
in notation) shall not affect the obligations of Borrower with respect to
Advances made hereunder, and payments of principal by Borrower shall be
credited to Borrower notwithstanding the failure to make a notation (or any
errors in notation) thereof on such books and records.


 


Borrower
promises to pay Bank all reasonable costs and reasonable expenses including all
reasonable attorneys’ fees, incurred in such collection or in any suit or
action to collect this Promissory Note or in any appeal thereof, unless a final
court of competent jurisdiction finds that the Bank acted with gross negligence
or willful misconduct.  Borrower waives
presentment, demand, protest, notice of protest, notice of dishonor, notice of
nonpayment, and any and all other notices and demands in connection with the
delivery, acceptance, performance, default or enforcement of this Promissory
Note, as well as any applicable statute of limitations.  No delay by Bank in exercising any power or
right hereunder shall operate as a waiver of any power or right.  Time is of the essence as to all obligations
hereunder.


 


This
Promissory Note is issued pursuant to the Loan Agreement, which shall govern
the rights and obligations of Borrower with respect to all obligations
hereunder.


 


The
law of the Commonwealth of Massachusetts shall apply to this Agreement.  BORROWER ACCEPTS FOR ITSELF AND IN CONNECTION
WITH ITS PROPERTIES, UNCONDITIONALLY, THE NON-EXCLUSIVE JURISDICTION OF ANY
STATE OR FEDERAL COURT OF COMPETENT JURISDICTION IN THE COMMONWEALTH OF
MASSACHUSETTS IN ANY ACTION, SUIT, OR PROCEEDING OF ANY KIND, AGAINST IT WHICH
ARISES OUT OF OR BY REASON OF THIS NOTE OR THE LOAN AGREEMENT; PROVIDED,
HOWEVER, THAT IF FOR ANY REASON BANK CANNOT AVAIL ITSELF OF THE COURTS OF THE
COMMONWEALTH OF MASSACHUSETTS, BORROWER ACCEPTS JURISDICTION OF THE COURTS AND
VENUE IN SANTA CLARA COUNTY, CALIFORNIA.


 

















 


BORROWER
WAIVES ITS RIGHT TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR
ARISING OUT OF ANY OF THE EXIM LOAN DOCUMENTS OR ANY OF THE TRANSACTIONS
CONTEMPLATED THEREIN, INCLUDING CONTRACT CLAIMS, TORT CLAIMS, BREACH OF DUTY
CLAIMS, AND ALL OTHER COMMON LAW OR STATUTORY CLAIMS.  BORROWER RECOGNIZES AND AGREES THAT THE
FOREGOING WAIVER CONSTITUTES A MATERIAL INDUCEMENT FOR IT TO ENTER INTO THIS
AGREEMENT.  BORROWER REPRESENTS AND
WARRANTS THAT IT HAS REVIEWED THIS WAIVER WITH ITS LEGAL COUNSEL AND THAT IT
KNOWINGLY AND VOLUNTARILY WAIVES ITS JURY TRIAL RIGHTS FOLLOWING CONSULTATION
WITH LEGAL COUNSEL.


 

















 


	
   

  	
  MICROFLUIDICS
  CORPORATION

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Brian E.
  LeClair

  
	
   

  	
   

  	
   

  
	
   

  	
  Name:

  	
  Brian E. LeClair

  
	
   

  	
   

  	
   

  
	
   

  	
  Title:

  	
  Exec. VP and
  CFO