FORM OF
PROMISSORY NOTE
$196,747.31 Teaneck, New Jersey
January __, 2001
FOR VALUE RECEIVED, the undersigned, PWR Systems, Inc., a Delaware
corporation ("Maker"), does hereby promise to pay to the order of_______________
___________________ ("Payee"), with an address at _____________________________,
or at such other place as the Payee or any holder hereof may from time to
time designate, the principal sum of One Hundred Ninety-six Thousand Seven
Hundred Forty-seven Dollars and Thirty-one Cents ($196,747.31) in lawful money
of the United States and immediately available funds, together with interest
accruing from the date hereof on the unpaid balance of said principal amount
from time to time outstanding at the rate of 6.30%, in twelve equal installments
of principal plus interest of $16,950.53 on the 27th day of the twelve
consecutive months beginning January 27, 2001 with the final installment on
December 27, 2001. Interest shall be calculated on the basis of the actual
number of days elapsed in a 360 day year of twelve 30-day months. This Note is
made pursuant to Section 4.1.2 of a certain Agreement and Plan of Merger (the
"Merger Agreement") dated as of February 28, 2000, as amended as of the date
hereof, among Maker, Payee and others.
1. Events of Default
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Upon the occurrence of any of the following events (each, an "Event of
Default" and collectively, the "Events of Default"):
(a) failure by Maker to pay the principal or interest of the Note or
any installment thereof within ten business days after such payment is due,
whether on the date fixed for payment or by acceleration or otherwise; or
(b) a final judgment for the payment of money in excess of $75,000
shall be rendered against Maker, and such judgment shall remain undischarged for
a period of sixty days from the date of entry thereof unless within such sixty
day period such judgment shall be stayed, and appeal taken xxxxxxxxx and the
execution thereon stayed during such appeal; or
(c) if Maker shall default in respect of any evidence of indebtedness
or under any agreement under which any notes or other evidence of indebtedness
of Maker are issued, if the effect thereof is to cause, or permit the holder or
holders thereof to cause, such obligation or obligations in an amount in excess
of $75,000 in the aggregate to become due prior to its or their stated maturity
or to permit the acceleration thereof; or
(d) if Maker or any other authorized person or entity shall take any
action to effect a dissolution, liquidation or winding up of Maker; or
(e) if Maker shall make a general assignment for the benefit of
creditors or consent to the appointment of a receiver, liquidator,
custodian, or similar official of all or
substantially all of its properties, or any such official is placed in
control of such properties, or Maker admits in writing its inability to pay its
debts as they mature, or Maker shall commence any action or proceeding or take
advantage of or file under any federal or state insolvency statute, including,
without limitation, the United States Bankruptcy Code or any political
subdivision thereof, seeking to have an order for relief entered with respect to
it or seeking adjudication as a bankrupt or insolvent, or seeking
reorganization, arrangement, adjustment, liquidation, dissolution,
administration, a voluntary arrangement, or other relief with respect to it or
its debts; or
(f) there shall be commenced against Maker any action or proceeding of
the nature referred to in paragraph (e) above or seeking issuance of a warrant
of attachment, execution, distraint, or similar process against all or any
substantial part of the property of Maker, which results in the entry of an
order for relief which remains undismissed, undischarged or unbonded for a
period of sixty (60) days;
(g) any default under any of (i) the Guaranty of this Note of even
date between Vizacom Inc., a Delaware corporation ("VIZ"), and Payee; (ii) the
Promissory Note (the "PN2") of even date by Maker made to the other Seller
Stockholder ("SS");(iii) the Guaranty of the PN2 of even date between VIZ and
SS; (iv) the Convertible Promissory Note (the "CPN") of even date made by VIZ to
Payee; (v) the Guaranty of the CPN of even date between Maker and Payee; (vi)
the Convertible Promissory Note (the "CPN2") of even date made by VIZ to SS; and
(vii) the Guaranty of the CPN2 of even date between Maker and SS; or
(h) any material default by VIZ of the first or second sentence of
Section 3(a) or any material default of the provisions set forth in of Section
3(b) of the Executive Employment Agreement of even date between VIZ and Payee.
then, in addition to all rights and remedies of Payee under applicable law or
otherwise, all such rights and remedies being cumulative, not exclusive and
enforceable alternatively, successively and concurrently, at his option, Payee
may declare all amounts owing under this Note, to be due and payable, whereupon
the then unpaid balance hereof together with all interest accrued thereon, shall
forthwith become due and payable, together with default interest accruing
thereafter at 6.30% plus three percent (3%) until the indebtedness evidenced by
this Note is paid in full, plus all costs and expenses of collection or
enforcement hereof, including, but not limited to, attorneys' fees and expenses.
2. Prepayment.
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(a) Maker may prepay, at any time, the unpaid principal balance of
this Note or any portion thereof, together with all accrued and unpaid
interest on the amount so prepaid. Amounts so prepaid shall be applied
first to Maker's obligations under this Note in respect of interest, and second,
to principal.
(b) Maker shall prepay the entire principal balance of this Note,
together with
all accrued and unpaid interest on the amount so prepaid, upon receiving
gross proceeds of $15,000,000 or more in the aggregate commencing on
November 12, 1999.
3. Offset. The obligation of Maker to make payments pursuant to this Note
is subject to Xxxxxxx's right of offset set forth in Section 9.3 of the Merger
Agreement.
4. Miscellaneous.
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(a) Maker (i) waives diligence, notice of dishonor, demand,
presentment, protest, notice of protest and notice of any kind, (ii) agrees that
it will not be necessary for any holder hereof to first institute suit in order
to enforce payment of this Note and (iii) consents to any one or more extensions
or postponements of time of payment, release, surrender or substitution of
collateral security or forbearance or other indulgence, without notice or
consent.
(b) All payments to be made to Payee under this Note shall be made
into such account or accounts as the Payee may from time to time specify for
that purpose.
(c) The provisions of this Note may not be changed, modified or
terminated orally, but only by an agreement in writing signed by the party to be
charged, nor shall any waiver be applicable except in the specific instance for
which it is given.
(d) This Note may not be assigned without the prior written consent
of the Maker.
(e) The execution and delivery of this Note has been authorized by the
Board of Directors of Maker.
(f) This Note shall be governed by and construed, and all rights and
obligations hereunder and thereunder determined, in accordance with the laws of
the State of New York without regard to the conflicts of laws principles thereof
and shall be binding upon the successors and assigns of Maker and inure to the
benefit of the Payee, its successors, endorsees and assigns.
(g) If any term or provision of this Note shall be held invalid,
illegal or unenforceable, the validity of all other terms and provisions shall
in no way be affected thereby.
(h) No delay or failure on the part of Payee to exercise any power or
right shall operate as a waiver thereof, and such rights and powers shall be
deemed continuous, nor shall a partial exercise preclude full exercise thereof,
and no right or remedy of Payee shall be deemed abridged or modified by any
course of conduct, and no waiver thereof shall be predicated thereon, nor shall
failure to exercise any such power or right subject Payee to any liability.
(i) Upon receipt by Maker of evidence and adequate indemnification by
Xxxxx reasonably satisfactory to it of the loss, theft, destruction, or
mutilation of this Note, and upon
surrender and cancellation of this Note, if mutilated, Maker will make and
deliver a new Note of like tenor, in lieu thereof.
(j) Whenever used herein, the terms "Maker" and "Payee" shall be
deemed to include their respective successors and assigns.
(k) This Note supercedes any prior note issued to Payee pursuant to
Section 4.1.2 of the Merger Agreement.
PWR SYSTEMS, INC.
By:
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Name:
Title
