EXHIBIT 10.1
AMENDED AND RESTATED SUBSCRIPTION AGREEMENT
FOR PROMISSORY NOTE AND COMMON STOCK
THIS AMENDED AND RESTATED SUBSCRIPTION AGREEMENT, dated as of March 10,
2008, is by and between the undersigned person (the "Subscriber") and Xxxxxx
Financial Group, Inc., a Delaware corporation with principal offices located at
000 Xxxxxxx Xxxxxx, Xxxxx 000, Xxxxxxxxxx, Xxxx Xxxxxxxx 00000 (the "Company"),
and amends certain terms of the Subscription Agreement dated _________ __, 2007
(the "Original Subscription Agreement"), entered into by Subscriber with the
Company.
SECTION 1. SUBSCRIPTION.
1.1 Pursuant to the Original Subscription Agreement, Subscriber became one of a
group of persons (the "Bridge Lenders") who provided an aggregate of $2,500,000
in financing (the "Bridge Financing") to the Company. As used herein,
Subscriber's "Pro Rata Share" means Subscribers share of such financing which
shall be expressed as a percentage derived by dividing the Purchase Price of
Subscriber stated in the Original Subscription Agreement by $2,500,000.
1.2 The Company has offered to the undersigned the opportunity to exchange the
promissory note previously issued by the Company to Subscriber in the principal
amount of $____ (the "Original Bridge Note") for an Amended Promissory Note in
the form attached hereto as Exhibit A (the "Amended Bridge Note"), together with
Common Stock of the Company (the "Common Shares" and collectively with the
Amended Bridge Note, the "Securities").
1.3 The Subscriber hereby accepts the offer of the Company and tenders the
Original Bridge Note to the Company for cancellation in exchange for the
Company's issuance to Subscriber of the Amended Bridge Note and Common Shares
(the "Purchased Securities") as more fully described hereafter. The Company
acknowledges Subscriber's previous delivery to the Company of the Purchase Price
specified in the Original Subscription Agreement and that no further
consideration to the Company, other than the modification of the terms of this
Agreement and the Amended Bridge Note, shall be payable by Subscriber.
1.4 The Subscriber confirms the information provided and representations made in
the Original Subscription Agreement or provides correction to such information
and representations in this Agreement, including Appendices A and B attached
thereto and hereto. The Subscriber hereby deliveres to the Company two executed
copies of this Agreement.
1.5 Upon receipt of the executed copies of this Agreement and the Original
Promissory Note by the Company, the Company shall affix its signature hereto and
shall execute and deliver to Subscriber one fully-executed copy of this
Agreement, countersigned by the Company, and the executed Amended Promissory
Note and shall cancel the Original Promissory Note.
SECTION 2. AGREEMENTS RESPECTING COMMON SHARES.
2.1 Common Shares have been or shall be issued to Subscriber in accordance
with the following:
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(a) Effective as of March 10, 2008, the Company shall issue or shall have
issued to Subscriber a number of Common Shares equal to Subscriber's
Pro Rata Share of 5% of the outstanding Common Shares;
(b) Upon the Company's consummation of a Qualified Financing (as defined
below), the Company shall issue to Subscriber a number of Common Shares
which when added to the Common Shares issued to Subscriber pursuant to
paragraph (a) of this Section will represent Subscriber's Pro Rata
Share of the Applicable Percentage. For purposes of this paragraph (b),
"Qualified Financing" means a financing involving the issuance of
equity securities that generates net proceeds to the Company of at
least $15 million on or before September 10, 2013, and
"Applicable Percentage" means the percentage of the outstanding Common
Shares of the Company determined as of the date of determination as
follows: If the Qualified Financing consists of $50 million or more,
the Bridge Lenders will receive 20% of the common stock of the Company
that would otherwise be retained by the holders of the Company's Common
Shares immediately prior to the financing -- for example, if $60
million of permanent financing is raised in the Qualified Financing in
exchange for 80% of the common stock so that the shareholders of the
Company immediately prior to the Qualified Financing would have 20% of
the common stock, the Applicable Percentage to which the Bridge Lenders
would be entitled would be 4% of the common stock outstanding following
the Qualified Financing (I.E., on a post money basis) (20% x 20%). If
the Qualified Financing is for an amount less than $50 million, the
percentage will be reduced on a sliding scale to a fraction of 20% of
the amount retained by holders of the Company's Common Shares (where
the numerator is the amount of financing and the denominator is $50
million) -- for example, if $40 million is raised in exchange for 60%
of common stock so that the current shareholders would have 40% of the
common stock, the Applicable Percentage to which the Bridge Lenders
would be entitled would be 6.4% of the common stock outstanding
following the Qualified Financing (I.E., on a post money basis) (40/50
x 20% x 40%).
(c) In the event that, under its terms, the Amended Bridge Note becomes
subject to Extended Maturity and is to be retired in accordance with
the Amortization Schedule (each, as defined therein), the Company shall
issue to Subscriber Subscriber's Pro Rata Share of the Common Shares
set forth in the following table:
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DATE OF ISSUANCE NUMBER OF SHARES
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September 10, 2008 2% of outstanding
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Each March 10 and September 10 thereafter until
retirement of Amended Bridge Note 2% of outstanding
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The number of Common Shares constituting the percentage so provided
shall be computed taking into account the number of outstanding shares
of Common Stock as of the applicable date, plus the Common Shares to be
issued to Subscriber as of such date as provided herein. Subscriber's
entitlement to be issued Common Shares under Section 2.2(c) shall
terminate upon retirement of the Amended Bridge Note, including by
prepayment prior to the applicable date of issuance.
SECTION 3. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company represents
and warrants to the Subscriber that:
3.1 This Agreement has been duly authorized, executed and delivered by the
Company, and constitutes a legal, valid and binding obligation of the Company,
enforceable in accordance with its terms.
3.2 The Company has the power and authority to issue the Purchased Securities,
and, when issued in accordance herewith, the Purchased Securities shall be fully
paid and non-assessable.
3.3 The Company has reserved for issuance in accordance herewith, and at all
times during which the Amended Bridge Note remains outstanding, shall maintain
in reserve for issuance in accordance herewith, a number of Common Shares
sufficient to fully satisfy the obligations of the Company pursuant to Section 2
of this Agreement.
SECTION 4. REPRESENTATIONS AND WARRANTIES OF THE SUBSCRIBER. The Subscriber
represents and warrants to the Company that:
4.1 This Agreement has been duly authorized, executed and delivered by the
Subscriber, and constitutes a legal, valid and binding obligation of the
Subscriber, enforceable in accordance with its terms.
4.2 The Subscriber understands the confidential nature of the subject matter of
this Agreement and agrees not to disclose the name of the Company or any matters
associated therewith prior to the public announcement by the Company of the
transactions effected hereby. Further, Subscriber understands that trading in
the Common Stock of the Company based upon information derived from the Company
in the process of this Subscription is strictly prohibited and subject to legal
prohibitions and sanctions under federal securities laws.
4.3 The Subscriber has had the opportunity to review the Amended Bridge Note and
this Agreement with its counsel or other financial advisors.
4.4 The Subscriber has knowledge and experience in financial and business
matters sufficient to enable it to evaluate the merits and risks of an
investment in the Purchased Securities.
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4.5 The Subscriber is acquiring the Purchased Securities hereunder for its own
account, solely for investment and not with a view to the resale or distribution
thereof within the meaning of the Securities Act of 1933, as amended (the
"Securities Act").
4.6 The Subscriber understands that its acquisition of the Purchased Securities
is an illiquid and may be a long-term investment; and, without impairing its
financial condition, it is able to hold the Purchased Securities for an
indefinite period of time and would be able to suffer a complete loss of its
investment without undue financial hardship.
4.7 The Subscriber has had an opportunity to ask questions of and receive
answers from the Company and its officers concerning the Company and the terms
and conditions of the Purchased Securities and has had an opportunity to obtain
additional information from the Company to the extent deemed necessary or
advisable by the Subscriber in order to verify the accuracy of the information
obtained. The Subscriber has, to the extent deemed necessary by the Subscriber,
consulted with its own advisors (including the Subscriber's attorney, accountant
or investment advisor) regarding the Subscriber's investment in the Purchased
Securities and understands the significance and effect of its representations,
warranties, acknowledgments and agreements set forth in this Agreement.
4.8 The Subscriber has reviewed copies of the public filings of the Company,
including those on Forms 10-KSB and 10-QSB. The Subscriber has, to the extent
deemed necessary by the Subscriber, completed due diligence and such independent
investigation concerning the Company and the terms and conditions of the sale of
the Purchased Securities contemplated hereby as it has deemed advisable.
4.9 The Subscriber acknowledges that neither the Company, nor any of its
officers, representatives or affiliates, nor any other person or entity, has
made any representations or warranties with respect to the Company, its business
or the Purchased Securities other than as set forth herein.
4.10 The Subscriber understands that the Purchased Securities have not been
registered under the Securities Act in reliance upon an exemption from the
registration requirements of the Securities Act pursuant to Section 4(2)
thereof, that the Purchased Securities have not been registered under applicable
state securities laws, and that the Purchased Securities may not be sold or
otherwise disposed of unless registered under the Securities Act and applicable
state securities laws (the Company being under no obligation to so register such
Purchased Securities) or exempted from registration. The Subscriber further
understands that the exemption from registration afforded by Rule 144
promulgated under the Securities Act is not presently available with respect to
the Purchased Securities.
4.11 The Subscriber is an "Accredited Investor" as such term is defined in Rule
501 of Regulation D promulgated under the Securities Act and has accurately
completed Appendix A to this Agreement.
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4.12 The Subscriber acknowledges that neither the Company nor any person or
entity acting on its behalf has offered to sell any of the Purchased Securities
to the Subscriber by means of any form of general solicitation or advertising,
including without limitation (i) any advertisement, article, notice or other
communication published in any newspaper, magazine or similar media, or
broadcast over television or radio, and (ii) any seminar or meeting whose
attendees have been invited by any general solicitation or general advertising.
SECTION 5. GENERAL.
5.1 NOTICES. All notices, requests, demands and other communications hereunder
shall be in writing and shall be deemed to have been duly given if delivered to
the parties at the addresses set forth below or on Appendix B, as applicable, as
same may be modified from time to time. Each such notice, request or other
communication shall be effective (a) if given by facsimile or e-mail, when
electronic confirmation that such facsimile or e-mail is received at the
facsimile number or e-mail address set forth below or on Appendix B, as
applicable, if such facsimile or e-mail is transmitted on a business day, and if
not, then on the next business day thereafter, or (b) if given by mail, three
(3) days after mailed by registered or certified mail (return receipt requested)
or (c) if given by express courier, on the day delivered by an express courier
(with confirmation from recipient) to the following addresses:
(a) if to the Company, to:
Xxxxxx Financial Group, Inc.
000 Xxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxxx, Xxxx Xxxxxxxx 00000
Attention: President
Facsimile No.: 000-000-0000
(b) if to the Subscriber, to its mailing address and facsimile number or
e-mail address as shown on the Appendix B to this Agreement.
Notice of any change in any address or facsimile number shall also be given in
the manner set forth above. Whenever the giving of notice is required, the
giving of such notice may be waived by the party entitled to receive such
notice.
5.2 ENTIRE AGREEMENT. This Agreement contains the entire agreement between the
parties hereto with respect to the purchase and sale of the Purchased Securities
and supersedes all prior agreements or understandings among the parties related
to such matters.
5.3 BINDING EFFECT. This Agreement shall be binding upon and inure to the
benefit of the parties hereto and their respective successors and assigns.
5.4 AMENDMENT AND MODIFICATION. This Agreement may be amended, modified,
superseded, canceled, renewed or extended, and the terms or covenants hereof may
be waived, only by a written instrument executed by all of the parties hereto
or, in the case of a waiver, by the party waiving compliance. Except as
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otherwise specifically provided in this Agreement, no waiver by either party
hereto of any breach by the other party hereto of any condition or provision of
this Agreement to be performed by such other party shall be deemed a waiver of a
similar or dissimilar provision or condition at the same or at any prior or
subsequent time.
5.5 GOVERNING LAW. This Agreement shall be construed and enforced in accordance
with, and the rights of the parties shall be governed by, the laws of the State
of West Virginia, without giving effect to the principles of conflicts of laws
thereof.
5.6 HEADINGS. Headings of the sections in this Agreement are intended solely for
convenience, and no provision of this Agreement is to be construed by reference
to the heading of any section.
5.7 COUNTERPARTS. This Agreement may be executed in one or more counterparts,
each of which shall be deemed an original, and all of which together shall
constitute one and the same agreement.
5.8 FEES AND EXPENSES. The Company, on the one hand, and the Subscriber, on the
other hand, shall pay the respective fees and expenses incurred by them in
connection with the transactions contemplated herein.
5.9 SEVERABILITY. Any term or provision of this Agreement which is invalid or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective
to the extent of such invalidity or unenforceability without rendering invalid
or unenforceable the remaining terms and provisions of this Agreement or
affecting the validity or enforceability of any of the terms and provisions of
this Agreement in any other jurisdiction.
5.10 FURTHER ACTIONS. The parties hereto agree to execute such further
instruments and to take such further actions as may reasonably be necessary to
carry out the intent of this Agreement.
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IN WITNESS WHEREOF, the Subscriber and the Company have executed this
Subscription Agreement.
-------------------------------------------- -----------------------------------
SUBSCRIBER: COMPANY:
Name (print) XXXXXX FINANCIAL GROUP, INC.
------------------------------ ------------------------------
Xxxx X. Xxxxxx, President
Signature:
Date:
------------------------------ -------------------------
If an entity, name and title of signatory:
Name: ________________________
Title: ________________________
Date: ________________________
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APPENDIX A
ACCREDITED INVESTOR STATUS
Please xxxx the appropriate box next to each description applicable to you.
[___] A corporation or a partnership, not formed for the specific purpose of
acquiring Securities, with total assets in excess of $5,000,000.
[___] A natural person whose individual net worth, or joint net worth with that
person's spouse, exceeds $1,000,000.
[___] A natural person who had individual income in excess of $200,000 in each
of the most recent two years, or joint income with that person's spouse in
excess of $300,000 in each of the most recent two years and who has a reasonable
expectation of reaching the same income level in the current year.
[___] A director or executive officer (as defined in Rule 501(f) of Regulation D
promulgated under the Securities Act) of the Company.
[___] A bank (as defined in Section 3(a)(2) of the Securities Act) or a savings
and loan association or other institution (as defined in Section 3(a)(5)(A) of
the Securities Act) whether acting in its individual or fiduciary capacity.
[___] A broker or dealer registered pursuant to Section 15 of the Securities
Exchange Act of 1934, as amended.
[___] An insurance company (as defined in Section 2(13) of the Securities Act).
[___] An investment company registered under the Investment Company Act of 1940
(the "Investment Company Act") or a business development company (as defined in
Section 2(a)(48) of the Investment Company Act).
[___] A Small Business Investment Company licensed by the U.S. Small Business
Administration under Section 301(c) or (d) of the Small Business Investment Act
of 1958.
[___] A plan established and maintained by a state, its political subdivisions,
or any agency or instrumentality of a state or its political subdivisions, for
the benefit of its employees, if such plan has total assets in excess of
$5,000,000.
[___] An employee benefit plan within the meaning of the Employee Retirement
Income Security Act of 1974 ("ERISA") if (A) the investment decision is made by
a plan fiduciary (as defined in Section 3(21) of ERISA) which is either a bank,
savings and loan association, insurance company or registered investment
advisor, or (B) the employee benefit plan has total assets in excess of
$5,000,000, or (C) if the plan is a self-directed plan, its investment decisions
are made solely by persons who are accredited investors.
[___] An individual retirement account the beneficiary of which is an accredited
investor under the standards for natural persons set forth above (I.E.
$1,000,000 net worth or $200,000 individual income or $300,000 joint income with
spouse).
[___] A private business development company (as defined in Section 202(a)(22)
of the Investment Advisers Act of 1940).
A-1
[___] A trust, with total assets in excess of $5,000,000, not formed for the
specific purpose of acquiring Securities, whose acquisition is directed by a
person who, either alone or with his or her purchaser representative(s), has
such knowledge and experience in financial business matters that such person is
capable of evaluating the merits and risks of acquiring Securities.
[___] An organization described in Section 501(c)(3) of the Internal Revenue
Code of 1986, as amended, or a Massachusetts or similar business trust, not
formed for the specific purpose of acquiring Securities, with total assets in
excess of $5,000,000.
[___] An entity in which all of the equity owners meet the requirements of at
least one of the above subparagraphs for accredited investors.
X-0
XXXXXXXX X
GENERAL INFORMATION. Please print or type the following information about you:
PART A. (TO BE COMPLETED BY NATURAL PERSONS)
--------------------------------------------
Full Name: _________________________________________
Residence Address: Number Street
_____________________________________________________
City State Zip
Telephone Number: _____________ Facsimile Number:__________________
Email Address: _____________________________________________________
Name of Employer: _____________________________________________________
Business Address and Telephone Number: ________________________________
________________________________
Telephone Number: _______________ Facsimile Number:______________
Social Security Number: ______-_____-___________
PART B. (TO BE COMPLETED BY ENTITIES)
------ ----------------------------
Name: _____________________________________________________
Business Address: _____________________________________________________
Number Street
_____________________________________________________
City State Zip
Telephone Number: _____________ Facsimile Number:__________________
Email Address: _____________________________________________________
Name and Title of
Individual Executing Questionnaire: ________________________________
Principal Business: ________________________________
State and Year of Organization: ________________________________
Tax Identification Number: ________________________________
B-1
EXHIBIT A
AMENDED PROMISSORY NOTE
(AMENDING AND REPLACING PROMISSORY NOTE DATED _______, 200_)
THIS PROMISSORY NOTE HAS BEEN ISSUED AND SOLD IN RELIANCE UPON EXEMPTIONS FROM
REGISTRATION UNDER THE SECURITIES ACT OF 1933 (THE "1933 ACT"), AND APPROPRIATE
EXEMPTIONS FROM REGISTRATION UNDER THE SECURITIES LAWS OF OTHER APPLICABLE
JURISDICTIONS. THIS PROMISSORY NOTE MAY NOT BE OFFERED FOR SALE, SOLD OR
TRANSFERRED OTHER THAN PURSUANT TO AN EFFECTIVE REGISTRATION OR AN EXEMPTION
THEREFROM SATISFACTORY TO THE ISSUER UNDER THE 1933 ACT AND THE APPLICABLE
SECURITIES LAWS OF ANY OTHER JURISDICTION. THE ISSUER SHALL BE ENTITLED TO
REQUIRE AN OPINION OF COUNSEL REASONABLY SATISFACTORY TO IT WITH RESPECT TO THE
APPLICABILITY TO SUCH TRANSACTION OF AN EXEMPTION UNDER THE 1933 ACT.
$_________ March 11, 0000
Xxxxxxxxxx, Xxxx Xxxxxxxx
FOR VALUE RECEIVED, XXXXXX FINANCIAL GROUP, INC., a Delaware
corporation with offices at Suite 970, 000 Xxxxxxx Xxxxxx, Xxxxxxxxxx, Xxxx
Xxxxxxxx 00000, ("MAKER") promises to pay to
_______________________________________, ("HOLDER") the sum of
________________________ Dollars ($________), together with interest on the
outstanding principal balance from time to time, in lawful money of the United
States of America as follows:
For purposes of this Note, the following terms shall have the following
meanings:
"AMORTIZATION SCHEDULE" means 20 equal quarterly installments of principal and
interest commencing on December 10, 2008.
"EXTENDED MATURITY" means the circumstance existing if the Company has not
consummated a Qualified Financing prior to September 10, 2008.
"NORMAL MATURITY DATE" means the date that is 10 days following the consummation
of a Qualified Financing by the Maker.
"QUALIFIED FINANCING" means a financing involving the issuance of equity
securities that generates net proceeds to the Maker of at least $15 million on
or before September 10, 2013.
Maker shall pay the outstanding principal of this Promissory Note on
the Normal Maturity Date, provided that, if a Qualified Financing has not
occurred by December 10, 2008, principal shall be in accordance with the
Amortization Schedule pursuant to the Extended Maturity.
Maker promises to pay interest on the outstanding principal amount of
this Promissory Note at the rate of 10.00% per annum. Interest on this
Promissory Note shall accrue from and including the date of issuance through and
until repayment of the principal amount of this Promissory Note and payment of
all interest in full. Interest shall be computed on the basis of a 365-day year
or 366-day year, as the case may be, and the actual number of days elapsed.
Interest shall be paid, together with principal, on the Normal Maturity Date,
provided that, if a Qualified Financing has not occurred, interest then accrued
shall be paid on September 10, 2008, and, if there is an Extended Maturity,
interest will thereafter be paid in accordance with the Amortization Schedule.
In addition to the principal amount of this Promissory Note, any amount of
overdue interest hereunder (to the extent permitted by law) if not paid when due
shall also bear interest from the date such payment was due until paid as set
forth in this paragraph.
The unpaid balance of this Promissory Note, including interest accrued
thereon, may be prepaid, in whole or in part, at any time after the day
following commencement of the Extended Maturity, without penalty. All payments
made hereunder shall be credited first to interest and then to principal.
This Promissory Note has been issued pursuant to that certain
Subscription Agreement for Promissory Note and Common Stock between the Holder
and the Maker of even date herewith, and the Maker hereby acknowledges its
agreements with respect to the issuance of shares of its Common Stock to Holder
as described therein.
The occurrence of any of the following shall constitute an Event of
Default hereunder (an "EVENT OF DEFAULT"):
(a) failure by Maker to pay any of the principal or interest on or
before 14 days after the same shall become due and payable (whether at the
Normal Maturity Date or pursuant to the repayment provisions applicable to an
Extended Maturity) in accordance with this Promissory Note;
(b) Maker shall commence or institute any case, proceeding or other
actions (i) seeking relief on its behalf as debtor, or to adjudicate it a
bankrupt or insolvent, or seeking other relief with respect to it or its debts,
under any existing or future law relating to bankruptcy, insolvency or relief of
debtors, or (ii) seeking appointment of a receiver, trustee, custodian or other
similar official for it or for all/or any substantial part of its property, or
if Maker shall make a general assignment for the benefit of creditors;
(c) any case, proceeding or other action of the type described in
subsection (b) above shall be commenced against Maker which either (i) results
in entry of an order for relief, adjudication of bankruptcy, insolvency, such an
appointment or the issuance or entry of any other order having a similar effect,
which order shall not have been vacated within ninety (90) days from entry
thereof, or (ii) remains undismissed for a period of ninety (90) days, or any
case, proceeding or other action shall be commenced or instituted against Maker
seeking issuance of a warrant of attachment, execution, distraint or similar
process against all or any substantial part of its property which results in an
order for relief which shall not have been vacated or effectively stayed within
ninety (90) days from entry thereof; or
(d) a trustee, receiver or other custodian is appointed for any
substantial part of the assets of Maker which appointment is not vacated or
effectively stayed within sixty (60) days;
(e) one or more judgments or orders for the payment of money in excess
of $100,000 in the aggregate shall be rendered against the Maker and such
judgment(s) or order(s) shall continue unsatisfied and unstayed for a period of
30 days.
Upon the occurrence of an Event of Default: (i) in the case of an Event
of Default referred to in clauses (a) or (e) above, the Holder may, by written
notice to the Maker, declare the principal amount then outstanding of, and the
accrued interest on, this Promissory Note to be forthwith due and payable,
whereupon such amount shall be immediately due and payable without presentment,
demand, protest or other formalities of any kind, all of which are hereby
expressly waived by the Maker; (ii) in the case of the occurrence of an Event of
Default referred to in clauses (b), (c) or (d) above, the principal amount then
outstanding of, and the accrued interest, if any, on, this Promissory Note shall
become automatically immediately due and payable without presentment, demand,
protest or other formalities of any kind, all of which are hereby expressly
waived by the Maker, and in any case the Holder may take such action as is
permitted to enforce its rights hereunder, and (iii) the Holder may exercise
from time to time any rights and remedies available to it by law, including
those available under any agreement or other instrument relating to the amounts
owed under this Promissory Note.
Maker shall give notice promptly to the Holder of the occurrence of any
Event of Default or the giving by any person of any notice claiming or asserting
that an event has occurred which constitutes, or with the giving of notice or
the passage of time or both would constitute, an Event of Default.
Except as set forth herein, Maker hereby (i) waives demand, presentment
for payment, notice of nonpayment, protest, notice of protest, notice of
dishonor, and all other notices; and (ii) agrees that, notwithstanding the
occurrence of any of the foregoing, Maker shall be and remain directly and
primarily liable for all sums due under this Promissory Note until all monies
due on this Promissory Note have been fully paid.
The Holder shall not, by any act (except by a written instrument signed
by the Holder, and then only to the extent specifically set forth therein), be
deemed to have waived any right or remedy hereunder or to have acquiesced in any
default or in any breach of any of the terms and conditions hereof. No failure
to exercise, nor any delay in exercising, on the part of the Holder, any right,
power or privilege hereunder shall operate as a waiver thereof. No single or
partial exercise of any right, power or privilege hereunder shall preclude any
other or further exercise thereof or the exercise of any other right, power or
privilege. A waiver by the Holder of any right or remedy hereunder on any one
occasion shall not be construed as a bar to any right or remedy which the Holder
would otherwise have on any further occasion. The rights and remedies herein
provided are cumulative, may be exercised singly or concurrently and are not
exclusive of any rights or remedies provided by law.
This Promissory Note shall be construed in accordance with, and
governed by, the internal laws of the State of West Virginia, without giving
effect to the principles of conflicts of law thereof.
WITNESS the signature of the Maker on this Promissory Note.
XXXXXX FINANCIAL GROUP, INC.
By:_________________________
Xxxx X. Xxxxxx, President
