exhibit102.htm


    Exhibit
10.2

    
 

    THIS
NOTE HEREOF HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED
(THE “SECURITIES
ACT”), OR ANY APPLICABLE STATE SECURITIES LAWS.  THIS NOTE HAS
BEEN ACQUIRED FOR INVESTMENT PURPOSES ONLY AND NOT WITH A VIEW FOR DISTRIBUTION
OR RESALE, AND MAY NOT BE SOLD, OFFERED FOR SALE, PLEDGED OR HYPOTHECATED UNLESS
IT HAS BEEN SO REGISTERED OR AN EXEMPTION FROM SUCH REGISTRATION IS
AVAILABLE.

     

    SECURED PROMISSORY
NOTE

     

    Principal
Amount:  $250,000.00                                                                                                                 Issue
Date:  December 11, 2008

     

    FOR VALUE RECEIVED, the
undersigned, Percipio
Biosciences, Inc., a Delaware corporation (the “Borrower”
or the “Company”),
hereby promises to pay to the order of Oxis International, Inc. (together with each of
their said heirs, personal representatives, successors and assigns, and any such
bearer, being hereinafter referred to collectively as  the “Holder”),
on or before December 11, 2011 (the “Maturity
Date”), the principal sum of Two Hundred Fifty Thousand Dollars
($250,000) (this “Note”
or the “Loan”)
bearing interest at a rate of Six Percent
(6%).  For purposes of this Note, “Borrower” shall mean all
successors in interest and assignees, including, without limitation, pursuant to
a merger, consolidation, reorganization, recapitalization or other similar
restructuring event (collectively, a “Reorganization”),
and all endorsers, sureties and guarantors and any other person liable or to
become liable with respect to the Loan.

    


    1.           Monthly Payment of Principal
and Interest.  Six months from the Issue Date, the Borrower
shall be required to begin making monthly payments of 1/30th of the
principal amount of the Note so that the Note will be fully repaid on the
Maturity Date, as shown in Schedule A.  Interest shall also be repaid
monthly, with payment of interest due upon the repayment of
principal.

     

    2.           Repayment
Minimum.  During any fiscal quarter of the Borrower beginning
six months after the Issue Date, payments of principal and interest to the
Holder shall be no less than 40% of Borrower’s Net Income (“Borrower’s Net
Income” shall mean the net income of the Borrower computed using GAAP-compliant
methods).

     

    3.           Prepayment.  Borrower
shall pay the entire outstanding principal balance under this Note, (the “Indebtedness”),
at anytime, in the Borrower’s sole discretion, on or before the Maturity Date
without penalty.

     

    4.           Accounts
Receivable.  This Note is being issued in conjunction with execution
of an Asset Purchase Agreement and involves the transfer of an accounts
receivable portfolio from the Holder to the Borrower that totals
$253,332.16.  This accounts receivable portfolio includes $36,603.22
in receivables that are aged 0-30 days, $66,341.49 in receivables that are aged
30-60 days, and $150,387.45 in receivables that are aged over 60
days.  If any of the respective amounts are not collected by Borrower,
whether because they were invalid, collected by Holder, or for any other reason,
within ninety (90) days, the uncollected amount shall be applied as a credit
towards repayment of the Indebtedness upon Borrower agreeing to assign the
uncollected amounts back to Holder.

     

    5.           Security
Interest.  The Indebtedness shall be secured and Holder shall
be granted a first priority security interest in all of the assets of the
Borrower and the Holder shall be permitted to file a UCC-1 Financing Statement
in the appropriate jurisdiction(s) recording such security
interest.

     

    6.           Acknowledgement by the
Holder.  The Holder hereby represents and warrants to the
Borrower that the Holder has sufficient knowledge and experience of financial
and business matters so that

     

    
      
        
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    the
Holder is able to evaluate the merits and risks of purchasing this Note and the
Holder has had substantial experience in previous private and public purchases
of securities.

     

    7.           Event of
Default.  Any of the following shall constitute an “Event of
Default” under this Note, and shall give rise to the remedies provided in
Section 8
herein:

     

    
      	
               
      

            	
              (a)

            	
              The
      failure by the Borrower to pay the Indebtedness or otherwise to satisfy
      when due, as contemplated in Sections 1 or
      2.

            


    

     

    
      	
               
      

            	
              (b)

            	
              If
      the Borrower:  (i) makes a general assignment for the
      benefit of creditors; (ii) is adjudicated a bankrupt or insolvent;
      (iii) files a voluntary petition in bankruptcy; (iv) takes advantage,
      as against its creditors, of any bankruptcy law or statute of the United
      States of America or any state or subdivision thereof now or hereafter in
      effect; (v) has a petition or proceeding filed against it under any
      provision of any bankruptcy or insolvency law or statute of the United
      States of America or any state or subdivision thereof, which petition or
      proceeding is not dismissed within 30 days after the date of the
      commencement thereof; (vi) has a receiver, liquidator, trustee,
      custodian, conservator, sequestrator or other such person appointed by any
      court to take charge of its affairs or assets or business and such
      appointment is not vacated or discharged within 30 days thereafter; or
      (vii) takes any action in furtherance of any of the
      foregoing;

            


    

     

    
      	
               
      

            	
              (c)

            	
              Any
      merger, liquidation, dissolution or winding up of the Borrower or its
      business or any sale of all or substantially all of the Borrower’s capital
      stock or assets; provided,
      however,
      the merger or sale of the Borrower with a successor entity that
      acknowledges and expressly assumes in writing the Borrower’s obligations
      hereunder shall not be considered an “Event of Default” for purposes
      hereof; or

            


    

     

    8.           Remedies on
Default.  If any Event of Default shall occur and be continuing
for a period of sixty (60) calendar days, the Holder shall, in addition to any
and all other available rights and remedies, have the right, at the Holder’s
option unless such Event of Default shall have been cured or waived in writing
by the Holder (which waiver shall not be deemed to be a waiver of a subsequent
default), to:  (a) declare the entire unpaid principal balance of this
Note, together with all other sums due by the Borrower hereunder (the “Default
Amount”), to be immediately due and payable; and (b) pursue any and all
available remedies for the collection of such principal and other sums to
enforce its rights as described herein; and in such case the Holder may also
recover all costs of suit and other expenses in connection therewith, including
reasonable attorney’s fees for collection and the right to equitable relief
(including, but not limited to, injunctions) to enforce the Holder’s rights as
set forth herein.

     

    


    9.           Certain
Waivers.  Except as otherwise expressly provided in this Note,
the Borrower hereby waives diligence, demand, presentment for payment, protest,
dishonor, nonpayment and default with respect to the Indebtedness evidenced
hereby.  The Borrower hereby expressly agrees that this Note, or any
payment hereunder, may be extended, modified or subordinated (by forbearance or
otherwise) from time to time, without in any way affecting the liability of the
Borrower.

     

    10.           Waivers and Amendments;
Cumulative Remedies.  Neither any provision of this Note nor
any performance hereunder may be waived orally, but only by an agreement in
writing and signed by the party against whom enforcement of any waiver or
discharge is sought.  No right or remedy conferred upon the parties
under this Note is intended to be exclusive of any other right or remedy
contained herein or in any instrument or document delivered in connection
herewith, and every such right or remedy shall be cumulative and shall be in
addition to every other such right or remedy contained herein and/or now or
hereafter existing at law or in equity or otherwise.

     

    11.           Governing
Law.  This Note shall be deemed to be a contract made under the
laws of the State of Delaware and shall be governed by, and construed in
accordance with, the laws of the State of

      
        
          
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Delaware
without giving effect to the principles of conflicts of law.  If
either party shall commence an action or proceeding to enforce any provision of
this Note, then the prevailing party in such action or proceeding shall be
reimbursed by the other party for its reasonable attorneys’ fees and other costs
and expenses incurred with the investigation, preparation and prosecution of
such action or proceeding.

     

    12.           Consent to Jurisdiction and
Service of Process.  The Borrower by execution, and the Holder
by acceptance, hereof each consent to the jurisdiction of any federal district
court in the State of Delaware having competent jurisdiction.  The
Borrower waives personal service of any summons, complaint or other process in
connection with any such action or proceeding and agrees that service thereof
may be made, as the Holder may elect, by certified mail directed to the Borrower
at the location provided for in Section 14 hereof,
or, in the alternative, in any other form or manner permitted by
law.

     

    13.           Additional
Documents.  From time to time the Holder will execute and
deliver to the Borrower such additional instruments as the Borrower may
reasonably request to effectuate the purposes of this Note.

     

    14.           Notices.  All
notices and other communications required or permitted hereunder shall be in
writing and shall be mailed by United States first-class mail, postage prepaid,
or delivered personally by hand or by nationally recognized overnight courier or
sent via facsimile addressed to:

     

    If to the
Borrower:

    


    Percipio
Biosciences, Inc.

    Attn:
Robert Brooke, President

    ___________________

    ___________________

    ___________________

    


     

    If to the
Holder:

     

    Oxis
International, Inc.

    Attn:
Maurice Spitz, Chief Executive Officer

    323
Vintage Park Drive, Suite B

    Foster
City, California 94404

    Fax:
650-212-2569

    


     

    or at
such other address as shall have been furnished to the other party in
writing.  All such notices and other written communications shall be
effective:  (a) if mailed, five days after mailing; (b) if delivered,
upon delivery; and (c) if sent via facsimile, upon confirmation of
receipt.

     

    15.           Severability.  If
any provision of this Note is prohibited or unenforceable in any jurisdiction,
it shall be ineffective in such jurisdiction only to the extent of such
prohibition or unenforceability, and such prohibition or unenforceability shall
not invalidate the balance of such provision to the extent it is not prohibited
or unenforceable nor the remaining provisions hereof, nor render unenforceable
such provision in any other jurisdiction.

     

    16.           Assignment.  This
Note shall inure to the benefit of, and shall be binding upon, the Borrower and
the Holder and their respective successors and permitted
assigns.  Neither party hereto may assign any of its rights or
obligations hereunder without the prior written consent of the other
party.

     

    17.           Counterparts.  This
Agreement may be executed in any number of counterparts, each of which shall be
deemed an original, and all of which together shall constitute one and the same
instrument.

     

    
      
        
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    A
facsimile signature of any party shall be considered to have the same binding
legal effect as an original signature.

     

    18.           No Stockholder
Rights.  Nothing contained in this Note shall be construed as
conferring upon the Holder or any other person the right to vote or to consent
or to receive notice as a stockholder in respect of meeting of stockholders for
the election of directors of the Borrower or any other matters or any rights
whatsoever as a stockholder of the Borrower; and no dividends shall be payable
or accrued in respect of this Note.

     

    JURY
WAIVER.  THE BORROWER BY EXECUTION, AND THE HOLDER BY
ACCEPTANCE, HEREOF EACH CONSENT THAT IN ANY CIVIL ACTION, COUNTERCLAIM, OR
PROCEEDING, WHETHER AT LAW OR IN EQUITY, WHICH ARISES OUT OF, CONCERNS, OR
RELATES TO THIS NOTE, ANY AND ALL TRANSACTIONS CONTEMPLATED BY THIS NOTE, THE
PERFORMANCE OF THIS NOTE, OR THE RELATIONSHIP CREATED BY THIS NOTE, WHETHER
SOUNDING IN CONTRACT, TORT, STRICT LIABILITY, OR OTHERWISE, TRIAL SHALL BE TO A
COURT OF COMPETENT JURISDICTION AND NOT TO A JURY.  EACH PARTY HEREBY
IRREVOCABLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY.  ANY
PARTY MAY FILE AN ORIGINAL COUNTERPART OR A COPY OF THIS NOTE WITH ANY COURT, AS
WRITTEN EVIDENCE OF THE CONSENT OF THE PARTIES TO THIS NOTE OF THE WAIVER OF
THEIR RIGHT TO A TRIAL BY JURY.

     

    


     

    


     

    IN WITNESS WHEREOF, the
undersigned has executed and delivered this Note on and as of the date first set
forth above.

     

     

    PERCIPIO
BIOSCIENCES, INC. a Delaware corporation, as Borrower

    


    


    


    By: /s/ Robert
Brooke

    Name:
Robert Brooke

    Title:
President

    


    


    


    


    


    


    


    


    


    


    


    


    


    


    



    
      
        
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    SCHEDULE A – NOTE REPAYMENT
SCHEDULE

    



    
      
        
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      Note
Repayment Schedule

      


      Holder:                                      Oxis International,
Inc.

      Borrower:                                             
Percipio Biosciences, Inc.

      


      Issue
Date:                                           12/1/2008

      Interest
Rate:                                           6%

      Principal
Amount:                                  $250,000

      Term:                                               36
months

      Deferral
Period:                                        6
months



     

    
      
        	
                Payment

              	 	
                Date

              	 	
                Principal

              	 	 	
                Interest

              	 	 	
                Total

              	 
	 	1	 	
                6/1/2009

              	 	 	8,333.33	 	 	$	250.00	 	 	 	8,583.33	 
	 	2	 	
                7/1/2009

              	 	 	8,333.33	 	 	$	291.67	 	 	 	8,625.00	 
	 	3	 	
                8/1/2009

              	 	 	8,333.33	 	 	$	333.33	 	 	 	8,666.67	 
	 	4	 	
                9/1/2009

              	 	 	8,333.33	 	 	$	375.00	 	 	 	8,708.33	 
	 	5	 	
                10/1/2009

              	 	 	8,333.33	 	 	$	416.67	 	 	 	8,750.00	 
	 	6	 	
                11/1/2009

              	 	 	8,333.33	 	 	$	458.33	 	 	 	8,791.67	 
	 	7	 	
                12/1/2009

              	 	 	8,333.33	 	 	$	500.00	 	 	 	8,833.33	 
	 	8	 	
                1/1/2010

              	 	 	8,333.33	 	 	$	541.67	 	 	 	8,875.00	 
	 	9	 	
                2/1/2010

              	 	 	8,333.33	 	 	$	583.33	 	 	 	8,916.67	 
	 	10	 	
                3/1/2010

              	 	 	8,333.33	 	 	$	625.00	 	 	 	8,958.33	 
	 	11	 	
                4/1/2010

              	 	 	8,333.33	 	 	$	666.67	 	 	 	9,000.00	 
	 	12	 	
                5/1/2010

              	 	 	8,333.33	 	 	$	708.33	 	 	 	9,041.67	 
	 	13	 	
                6/1/2010

              	 	 	8,333.33	 	 	$	750.00	 	 	 	9,083.33	 
	 	14	 	
                7/1/2010

              	 	 	8,333.33	 	 	$	791.67	 	 	 	9,125.00	 
	 	15	 	
                8/1/2010

              	 	 	8,333.33	 	 	$	833.33	 	 	 	9,166.67	 
	 	16	 	
                9/1/2010

              	 	 	8,333.33	 	 	$	875.00	 	 	 	9,208.33	 
	 	17	 	
                10/1/2010

              	 	 	8,333.33	 	 	$	916.67	 	 	 	9,250.00	 
	 	18	 	
                11/1/2010

              	 	 	8,333.33	 	 	$	958.33	 	 	 	9,291.67	 
	 	19	 	
                12/1/2010

              	 	 	8,333.33	 	 	$	1,000.00	 	 	 	9,333.33	 
	 	20	 	
                1/1/2011

              	 	 	8,333.33	 	 	$	1,041.67	 	 	 	9,375.00	 
	 	21	 	
                2/1/2011

              	 	 	8,333.33	 	 	$	1,083.33	 	 	 	9,416.67	 
	 	22	 	
                3/1/2011

              	 	 	8,333.33	 	 	$	1,125.00	 	 	 	9,458.33	 
	 	23	 	
                4/1/2011

              	 	 	8,333.33	 	 	$	1,166.67	 	 	 	9,500.00	 
	 	24	 	
                5/1/2011

              	 	 	8,333.33	 	 	$	1,208.33	 	 	 	9,541.67	 
	 	25	 	
                6/1/2011

              	 	 	8,333.33	 	 	$	1,250.00	 	 	 	9,583.33	 
	 	26	 	
                7/1/2011

              	 	 	8,333.33	 	 	$	1,291.67	 	 	 	9,625.00	 
	 	27	 	
                8/1/2011

              	 	 	8,333.33	 	 	$	1,333.33	 	 	 	9,666.67	 
	 	28	 	
                9/1/2011

              	 	 	8,333.33	 	 	$	1,375.00	 	 	 	9,708.33	 
	 	29	 	
                10/1/2011

              	 	 	8,333.33	 	 	$	1,416.67	 	 	 	9,750.00	 
	 	30	 	
                11/1/2011

              	 	 	8,333.33	 	 	$	1,458.33	 	 	 	9,791.67	 
	 	 	 	 
      	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	
                Totals:

              	 	$	250,000.00	 	 	$	25,625.00	 	 	$	275,625.00	 


      

    

    


    


    
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