EXHIBIT 10.4


PROMISSORY NOTE


	
  

  	
  Date

  
	
  $

  	
  Ada, Michigan

  



 


FOR VALUE RECEIVED, the undersigned, INTERLEUKIN GENETICS, INC., a Delaware corporation,
of 135 Beaver Street, 2nd Floor,
Waltham, Massachusetts 02452 (the “Company”),
promises to pay to PYXIS INNOVATIONS INC., a Delaware corporation, of 7575
Fulton Street East, Ada, Michigan 49355-0001 (“Payee”),
the principal amount of       ($              ) and interest on the unpaid
principal balance at the per annum rate equal to the Index Rate until maturity
(adjusted on the first day of each calendar quarter to the Index Rate in effect
on the date of adjustment) and the Index Rate plus 2% (adjusted on the first
day of each calendar quarter to the Index Rate in effect on the date of adjustment)  percent per annum after maturity.  As used in this Note, “Index Rate”
means the “Prime Rate” listed in the Money Rates section of the Wall Street Journal.


The principal of this Note shall be paid in full on August 16,
2011.  Accrued interest shall be paid on
first day of each calendar quarter until the principal balance shall be paid in
full.


Prepayments.  The Company may not prepay the principal of
this Note without the prior written consent of the Payee, which may be given or
withheld in the Payee’s sole discretion.


Default
and Acceleration.  Each
of the following shall be an “event of default” under this Note:  (1) if default occurs in the payment of
principal or interest under this Note or in the payment of any other
indebtedness or obligation that the Company now or in the future owes to Payee,
as and when it shall be or become due and payable; (2) if default occurs
in the performance of any other obligation to Payee under this Note, the
Purchase Agreement (as defined below), the Stock Purchase Agreement dated March
5, 2003, the Stock Purchase Agreement dated August 17, 2006, or any other
agreement that has been or in the future is entered into between the Company
and Payee, in each case as may be amended from time to time, or if there occurs
any other event of default under the Purchase Agreement or any such other
agreement; (3) if any warranty or representation that the Company has made to
Payee in any agreement, or if any financial statement or other document given
to Payee in connection with the transactions contemplated by the Purchase
Agreement, shall have been false in any material respect; (4) if the
Company dissolves, becomes insolvent, or makes an assignment for the benefit of
creditors; (5) if the Company defaults in the payment of any other
material indebtedness or performance of material obligations owed to any other
party or entity; or (6) a Change of Control of the Company.  Upon the occurrence of any event of default,
all or any part of the indebtedness evidenced by this Note and all or any part
of all other indebtedness and obligations that the Company then owes to Payee
shall, at the option of Payee, become immediately due and payable without
notice or demand.  If a voluntary or
involuntary case in bankruptcy, receivership or insolvency shall at any time be
begun by or against the Company or if any levy, writ of attachment,
garnishment, execution or similar process shall be issued against or placed
upon any property of the Company, then all such indebtedness shall
automatically become immediately due and payable.  All or any part of the indebtedness evidenced
by this Note also may become, or may be declared to be, immediately due and
payable under the terms and conditions contained in the Purchase Agreement or
other agreement that has been or in the future is entered into between the
Company and Payee upon the terms and to the extent provided therein.









 



“Change of Control” shall mean (a) a dissolution or
liquidation of the Company, (b) a merger or consolidation in which the Company
is not the surviving corporation, (c) a merger or share exchange in which the
Company is the surviving corporation but after which the stockholders of the
Company immediately prior to such merger cease to own at least 51% of the
outstanding shares of the Company, (d) the sale, license, or other transfer of
substantially all of the assets of the Company, or (e) the acquisition, sale,
or transfer (other than a transaction involving primarily shares held by Payee
or its affiliates) of more than 50% of the outstanding shares of the Company,
whether by tender offer, similar transaction, or newly issued stock (other than
to Payee or its affiliates).


Agreement.  This Note is given under a certain Note
Purchase Agreement, dated October 23, 2002, as amended between Payee and the Company (the “Purchase
Agreement”), and Payee shall have all of the rights and powers set
forth in the Agreement as though they were set forth fully in this Note.


Conversion.  Payee has the right, at its option, at any
time before the payment in full of this Note, to convert a portion or all of
the balance of this Note into fully paid and nonassessable common stock of the
Company.  The number of shares of common
stock into which the balance of this Note may be converted (“Conversion Shares”) shall be determined by dividing the
aggregate principal amount to be converted, together with all accrued interest
to the date of conversion, by $5.6783 (the “Conversion
Price”).  The Conversion Price is subject to
adjustment as follows:  if the Company
(1) pays a dividend or makes a distribution on its Common Stock in shares of
its Common Stock; (2) subdivides its outstanding shares of Common Stock into a
greater number of shares; (3) combines its outstanding shares of Common Stock
into a smaller number of shares; (4) makes a distribution on its Common Stock
in shares of its capital stock other than its Common Stock; or (5) issues by
reclassification of its Common Stock any shares of its capital stock; then the
Conversion Price in effect immediately prior to such action shall be
proportionately adjusted so that the Payee may receive the aggregate number and
kind of shares of capital stock of the Company that the Payee would have owned
immediately following such action if the Note had been converted immediately
prior to such action.  Each adjustment to
the Conversion Price shall be effective immediately after the record date in
the case of a dividend or distribution and immediately after the effective date
in the case of a subdivision, combination, or reclassification.


Before Payee shall
be entitled to convert some or all of the balance of this Note into shares as
provided above, it shall give written notice to the Company of the election to
convert, and shall state the amount of the balance to be converted.  The Company shall, as soon as practicable
thereafter, issue and deliver to Payee a certificate for the number of shares
of common stock to which Payee shall be entitled.  Such conversion shall be deemed to have been
made immediately prior to the close of business on the date of Company’s
receipt of the notice from Payee, and Payee shall be treated for all purposes
as the record holder of such shares of stock as of such date.


No fractional
shares of stock shall be issued upon conversion of this Note.  In lieu of the Company issuing any fractional
shares to Payee upon conversion, the number of shares issued shall be rounded
to the nearest whole number.  If the
entire balance of this Note is to be converted, then Payee shall surrender this
Note, duly endorsed, at the office of the Company.  If only a portion of the balance of this Note
is converted, then the balance of this Note shall be reduced by the amount
converted, with the remaining balance continuing as outstanding under this
Note.  Upon conversion, the Company shall,
at its expense, issue and deliver to Payee a certificate for the number of
shares of such stock to which Payee shall be entitled upon such









 



conversion (bearing such legends as are required by
the Stock Purchase Agreement dated August 17, 2006), together with any other
securities and property to which Payee is entitled upon such conversion under
the terms of this Note.


In the event of:
(a) any taking by the Company of a record of holders of any class of securities
of the Company for the purpose of determining holders thereof who are entitled
to receive any dividend or other distribution, or any right to subscribe for,
purchase, or otherwise acquire any 
shares of stock of any class or any other securities or property, or to
receive any other right; or (b) any capital reorganization, any
reclassification, or recapitalization of the capital stock of the Company or
any transfer of all or substantially all of the assets of the Company to any
other person or any consolidation or merger or similar change of control
transaction involving the Company; or (c) any voluntary or involuntary
dissolution, liquidation, or winding up of the Company; then the Company will
mail to Payee at least ten days prior to the earliest date specified therein, a
notice specifying: (i) the date on which any such record is to be taken for the
purpose of such dividend, distribution, or right, and the amount and character
of such dividend, distribution, or right; and (ii) the date on which any such
reorganization, reclassification, transfer, consolidation, merger, dissolution,
liquidation, or winding up is expected to become effective and the record date
for determining stockholders entitled to vote thereon.


The Company shall,
at all times reserve and keep available out of its authorized but unissued
shares of common stock solely for the purpose of effecting the full conversion
of the Note such number of its shares of common stock as shall from time to
time be sufficient to effect the conversion of the Note.  If at any time the number of authorized by
unissued shares of common stock shall not be sufficient to effect the
conversion of the entire outstanding principal amount of this Note, in addition
to such other remedies as shall be available to Payee, the Company will use its
best efforts to take such corporate action as may, in the opinion of its
counsel, be necessary to increase its authorized but unissued shares of common
stock to such number of shares as shall be sufficient for such purposes.


Place and
Application of Payments. 
Each payment upon this Note shall be made at Payee’s address set forth
above or any other place that Payee directs in writing.  Payee shall apply any payment upon it first
to any expenses (including expenses of collection) then due and payable to
Payee, then to any unpaid late charges, then to any accrued and unpaid interest
under this Note and then to the unpaid principal balance.  If the Company at any time owes Payee any
indebtedness or obligation in addition to the indebtedness that this Note
evidences, and if any indebtedness that the Company then owes to Payee is then
in default, then the Company shall not have any right to direct or designate
the particular indebtedness or obligation upon which any payment made by, or
collected from, the Company or from security shall be applied.  The Company waives any such right and agrees
that Payee shall determine, in its sole discretion, the manner of application
of any such payment, as between or among such indebtedness and obligations.


Setoff.  Payee shall have the right at any time to set
off any indebtedness that this Note evidences and that is then due and payable
against any indebtedness that Payee then owes to the Company.


Remedies.  Payee shall have all rights and remedies that
the law and any agreement of the Company provide.  Any requirement of reasonable notice with
respect to any sale or other disposition of collateral shall be met if Payee
sends the notice at least ten days before the date of sale or other
disposition.  The Company shall reimburse
Payee for any and all









 



expenses, including reasonable attorney fees and legal
expenses, that Payee pays or incurs in protecting and enforcing the rights of
and obligations to Payee under any provision of this Note.


Waivers.  A delay by Payee in the exercise of any right
or remedy shall not be considered a waiver of it.  A single or partial exercise by Payee of any
right or remedy shall not preclude any other or future exercise of it or the
exercise of any other right or remedy.  A
waiver by Payee of any default or of any provision of this Note shall not be
effective unless it is in writing and signed by Payee.  A waiver of any right or remedy on one
occasion shall not be a waiver of that right or remedy on any future occasion.


The Company waives
demand for payment, presentment, notice of dishonor and protest of this Note
and waives all defenses based on suretyship or impairment of collateral.  The Company consents to any extension or
postponement of time of payment of this Note, to any substitution, exchange or
release of all or any part of any security given to secure it, to the addition
of any party to it and to the release, discharge, waiver, modification or
suspension of any rights or remedies against any person liable for the
indebtedness that this Note evidences.


General.  In this Note, “maturity”
means the time when the entire remaining unpaid principal balance shall be or
shall become due and payable for any reason, including acceleration as provided
above.


Applicable
Law and Jurisdiction. 
This Note shall be governed by and interpreted according to the laws of
the State of Michigan, without giving effect to conflict of laws rules.  The Company irrevocably agrees and consents
that any action against the Company for collection or enforcement of this Note
may be brought in any state or federal court that has subject matter
jurisdiction and is located in, or whose district includes, Kent County,
Michigan, and that any such court shall have personal jurisdiction and venue
over the Company for purposes of the action.


PAYEE AND
OBLIGOR EACH IRREVOCABLY AND UNCONDITIONALLY WAIVES ITS RIGHT TO A TRIAL BY
JURY IN ANY ACTION, INCLUDING ANY CLAIM, COUNTERCLAIM, CROSS-CLAIM OR
THIRD-PARTY CLAIM (“CLAIM”), THAT IS BASED UPON, ARISES OUT OF OR RELATES TO
THIS NOTE OR THE INDEBTEDNESS THAT IT EVIDENCES, INCLUDING, WITHOUT LIMITATION,
ANY CLAIM THAT IS BASED UPON, ARISES OUT OF OR RELATES TO ANY ACTION OR
INACTION OF PAYEE IN CONNECTION WITH ANY ACCELERATION, ENFORCEMENT OR
COLLECTION OF THIS NOTE OR SUCH INDEBTEDNESS.


	
   

  	
  INTERLEUKIN
  GENETICS, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By

  	
   

  	
   

  
	
   

  	
   

  	
  Kenneth S. Kornman

  
	
   

  	
   

  	
  President and Chief Executive Officer