EXHIBIT 10.71
THIS NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED,
OR THE SECURITIES LAWS OF ANY STATE AND IT MAY NOT BE SOLD, TRANSFERRED, PLEDGED
OR HYPOTHECATED UNLESS IT HAS BEEN SO REGISTERED OR AN EXEMPTION FROM SUCH
REGISTRATION IS AVAILABLE.
XXXXXX.XXX, INC.
NOTE DUE JUNE 5, 2001
$350,000.00
xxxxxx.xxx, Inc., Inc., a Delaware corporation (the "Company"), for value
received, hereby promises to pay to Commonwealth Associates, L.P. or its assigns
(the "Payee"), on June 5, 2001, the principal sum of THREE HUNDRED FIFTY
THOUSAND DOLLARS ($350,000.00), without interest. If there shall be a default
in the payment of the unpaid principal amount when such principal amount shall
have become due and payable (whether at maturity, by acceleration or otherwise),
the unpaid principal amount shall bear interest (computed on the basis of a 360-
day year of twelve 30-day months) on the unpaid principal amount at the rate of
eight percent (8%) per annum.
The Company shall have the right to prepay all or any part of the principal
amount of this Note without penalty.
This Note shall accelerate and the entire principal amount shall become due
and payable upon the occurrence of any of the following events:
(1) a closing of the Private Placement (as defined in that certain
engagement letter agreement, dated June 5, 2000, between the Company and the
Payee);
(2) a merger or consolidation of the Company with or into any other
corporation or corporations where the stockholders of the Company immediately
prior to such event do not retain more than a 50% voting power and interest in
the successor entity or a sale of substantially all assets of the Company;
(3) the Company shall have received gross proceeds equal to or
exceeding $10,000,000 or more in one or more sales of securities;
(4) the Company shall become insolvent or admits its inability to pay
its debts as they become due, or any proceeding shall be instituted by the
Company seeking relief on its behalf as debtor, or to adjudicate it a bankrupt
or insolvent, or seeking liquidation, reorganization, arrangement, adjustment or
composition or other relief with respect to it or its debts under any law
relating to bankruptcy, insolvency or reorganization or relief of debtors or any
similar law now or hereafter in effect, or seeking appointment of a receiver,
trustee, liquidator, custodian or other similar official for it or for any part
of its property, or the
Company shall consent by answer or otherwise to any such relief or to the
institution of any such proceeding against it;
(5) any proceeding is instituted against the Company seeking to have
an order for relief entered against it as debtor or to adjudicate it a bankrupt
or insolvent, or seeking liquidation, reorganization, arrangement, adjustment or
composition or other relief with respect to it or its debts under any law
relating to bankruptcy, insolvency or reorganization or relief of debtors or any
similar law now or hereafter in effect, or seeking appointment of a receiver,
trustee, custodian, liquidator or other similar official for it or for any part
of its property which either (i) results in any such entry of an order for
relief, adjudication of bankruptcy or insolvency or issuance or entry of any
other order having a similar effect or (ii) remains undismissed for a period of
forty-five (45) days;
(6) a receiver, trustee, liquidator, custodian or other similar
official is appointed for any part of the Company's assets;
(7) any assignment is made for the benefit of the Company's creditors;
or
(8) the Company shall take any action in contemplation of dissolution
or other winding up.
This Note shall be governed by, and construed and enforced in accordance
with, the internal laws of the State of New York applicable to contracts
executed and fully performed within the State of New York.
All notices and other communications provided for under or otherwise made
in connection with this Note shall be in writing (including telegraphic, telex,
and facsimile transmissions) and mailed or transmitted or delivered, (i) if to
the Company, at its address 000 X. Xxxxx, Xxxxx 000, Xxxxxx, XX 00000,
Attention Chief Executive Officer, and (ii) if the Payee, at its address 000
Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000. Except as otherwise provided in this
Note, all such notices and communications shall be effective when deposited in
the mails or delivered to the telegraph company, or sent, answer back received
or confirmed, by telex or facsimile transmission, respectively, addressed as
aforesaid.
No failure or delay on the part of the Payee in exercising any right,
power, privilege or remedy hereunder shall operate as a waiver thereof; nor
shall any single or partial exercise of any such right, power, privilege or
remedy preclude any other or further exercise thereof or the exercise of any
other right, power, privilege or remedy hereunder. The rights and remedies
provided herein are cumulative, and are not exclusive of any other rights,
powers, privileges or remedies, now or hereafter existing, at law or in equity
or otherwise.
This Note sets forth the entire agreement of the Company and the Payee with
respect to this Note. No amendment, modification or waiver of any provision of
this Note nor consent to any departure by the Company therefrom shall be
effective unless the same shall be in writing
and signed by the Payee, and then such waiver or consent shall be effective only
in the specific instance and for the specific purpose for which given.
This Note shall be binding upon the Company and its legal representatives,
successors and assigns and the terms hereof shall inure to the benefit of the
Payee and its legal representatives, successors and assigns, including
subsequent holders hereof.
The provisions of this Note are severable, and if any provision shall be
held invalid or unenforceable in whole or in part in any jurisdiction, then such
invalidity or unenforceability shall not in any manner affect such provision in
any other jurisdiction or any other provision of this Note in any jurisdiction.
The Company agrees that in any action or proceeding brought on or in
connection with this Note (i) the Supreme Court of the State of New York for the
County of New York, or (in a case involving diversity of citizenship) the United
States District Court of the Southern District of New York, shall have
jurisdiction of any such action or proceeding, to which jurisdiction the Company
irrevocably submits, irrevocably waiving any objection to the laying of venue in
any such court and further irrevocable waiving any claim that any such action or
proceeding in any such court is in an inconvenient forum, (ii) service of any
summons and complaint or other process in any such action or proceeding may be
made by the Payee upon the Company by registered or certified mail directed to
the Company as its address referenced above, the Company hereby waiving personal
service thereof, and (iii) within thirty (30) days after such mailing the
Company shall appear or answer to any summons and complaint or other process,
and should the Company fail to appear to answer within said thirty (30) day
period, it shall be deemed in default and judgment may be entered by the Payee
against the Company for the amount as demanded in any summons or complaint or
other process so served.
The Company agrees to pay all expenses incurred by the Payee in connection
with the collection and enforcement of this Note, including, without limitation,
reasonable attorney's fees and disbursements.
The Company hereby waives presentment, demand for payment, notice of
dishonor, notice of protest, and protest, and all other notices or demands in
connection with the delivery, acceptance, performance, default or endorsement of
this instrument. The obligation to make payments to the Payee hereunder is
absolute and unconditional and the rights of said Xxxxx shall not be subject to
any defense, set-off, counterclaim or recoupment which the Company may have
against the Payee or by reason of any indebtedness or liability at any time
owing by the Payee to the Company or otherwise. In the event that this Note is
negotiated, endorsed, assigned, transferred, hypothecated and/or pledged, the
obligations of the Company hereunder shall continue in full force and effect.
THE COMPANY AND, BY ITS ACCEPTANCE HEREOF, THE PAYEE, HEREBY IRREVOCABLY
WAIVE THE RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING, CLAIM OR
COUNTERCLAIM, WHETHER IN CONTRACT OR TORT,
AT LAW OR IN EQUITY, IN ANY MANNER CONNECTED WITH THIS NOTE OR ANY TRANSACTIONS
HEREUNDER. NO OFFICER OF THE PAYEE HAS AUTHORITY TO WAIVE, CONDITION OR MODIFY
THIS PROVISION.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed under its seal on this 5th day of June, 2001.
XXXXXX.XXX, INC.
By: /s/ Xxxxxx Xxxxxxx
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Name: Xxxxxx Xxxxxxx
Title: CEO
