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EXHIBIT 10.30
THIS NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED (THE "ACT") OR UNDER ANY OTHER APPLICABLE
SECURITIES LAWS, AND MAY NOT BE SOLD OR OTHERWISE TRANSFERRED
IN THE ABSENCE OF REGISTRATION UNDER THE ACT OR SUCH LAWS OR
AN OPINION OF COUNSEL, REASONABLY SATISFACTORY TO LITHIUM
TECHNOLOGY CORPORATION, THAT SUCH REGISTRATION IS NOT
REQUIRED.
CONVERTIBLE NOTE
FOR VALUE RECEIVED, the undersigned (the "Borrower") promises to pay to
______________________ (the "Lender"), _______________
_________________________________ DOLLARS ($_________), together with interest,
as follows:
1. CONVERTIBLE NOTE AGREEMENT: This Note evidences a loan in the amount
of $_________ (the "Loan") arising out of and governed by the terms of a
Convertible Note Purchase Agreement dated the date hereof by and between the
Borrower and the Lender (the "Note Agreement"). Capitalized terms used herein
and not otherwise defined shall have the meaning ascribed thereto in the Note
Agreement. This Note is convertible under the terms and conditions specified in
the Note Agreement.
2. PAYMENT; INTEREST RATE: The principal amount of this Note shall be
repaid on the earlier to occur of (i) the expiration of the period of ninety
(90) days from and after the Closing Date or (ii) the closing of an underwritten
offering of the Company's Common Stock registered with the SEC and as described
in the commitment letter between the Company and Xxxxxxx & Co. attached to the
Note Agreement as Exhibit A (hereinafter the "Underwritten Offering"). The
repayment date shall hereinafter be referred to as the "Maturity Date". The
Company shall have the right upon five (5) days prior written notice to extend
the Maturity Date of the Notes on two (2) occasions for periods not to exceed
thirty (30) days. The Company shall not have the right to extend the Maturity
Date of the Notes beyond the closing date of the Underwritten Offering. In the
event that (a) the Company has not delivered either of the aforesaid extension
notices and (b) the Company has not repaid the Notes as of the then applicable
Maturity Date, the Company shall nevertheless be deemed to have elected to
extend the Notes as if the Company actually had delivered the extension notice,
and the First Extension Shares and/or the Second Extension Shares as applicable
(as defined in the stock purchase agreement
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referred to in Section 1(d) of the Note Agreement as Exhibit B) shall be deemed
to have been earned by the Lender. Interest on this Note arising on or before
the 150th day after the Closing Date shall be paid and satisfied in full by the
Investment/Interest Shares issued to the Purchaser in accordance with the stock
purchase agreement referred to in Section 1(d) of the Note Agreement as Exhibit
B. In the event that any principal amount of this Note remains unpaid or not
converted into Escrowed Shares on or after 151st day after the Closing Date, the
unpaid principal amount (until paid or converted into Escrowed Shares) shall
accrue interest at the rate of 10.0% per annum based on a 360-day year, which
interest (i) shall accrue for, and be payable in cash at the end of, the first
six months commencing on such 151st day and (ii) shall thereafter accrue and be
payable in cash on a monthly basis in arrears.
3. TERM: The Loan shall mature on the 90th day from and after the
Closing Date, subject to the extension periods provided for in the Note
Agreement.
4. PREPAYMENTS: Prepayment will be permitted in whole or in part at any
time without fee or penalty.
5. DEFAULT: The Borrower shall be in default under this Note upon the
occurrence: of (i) any of the events specified in Section 5(a) hereof and the
failure to cure such default within three (3) days after receipt of written
notice thereof from the Purchaser; (ii) any of the events specified in Section
5(b) hereof and the failure to cure such default within fifteen (15) days after
receipt of written notice thereof from the Purchaser; or (iii) any of the events
specified in Section 5(c) hereof (any of the foregoing being an "Event of
Default"):
(a) Failure to make any payment required under this Note on
the Maturity Date or on the due date of any other payment;
(b) Any material default shall occur under the terms and
provisions of the Note Agreement; or
(c) Insolvency of, business failure of, or an assignment for
the benefit of creditors by or the filing of a petition under bankruptcy,
insolvency or debtor's relief law, or for any readjustment of indebtedness,
composition or extension by the Borrower, or commenced against the Borrower
which is not discharged within sixty (60) days.
6. CHANGES; PARTIES: This Note can only be changed by an agreement in
writing signed by the Borrower and the Purchaser. This Note shall inure to the
benefit of and be binding upon the Borrower and the Lender and their respective
successors and assigns, provided that this Note and the obligations hereunder
shall be non-negotiable and non-transferable.
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7. GOVERNING LAW: This Note shall be construed according to the laws of
the State of New Jersey and the Borrower and the Lender by acceptance hereof
consent to the jurisdiction of the federal and state courts of the State of New
Jersey to determine any questions of fact or law arising under this Note. The
Borrower and Xxxxxx waive trial by jury and consent to and confer personal
jurisdiction on the courts of the State of New Jersey or of the Federal
Government, and expressly waive any objections as to venue in any of such
courts, and agree that service of process may be made by mailing a copy of the
summons to its/his respective address.
IN WITNESS WHEREOF, the Borrower has executed this Note as of the day
and year set forth below.
LITHIUM TECHNOLOGY CORPORATION
By:________________________________
Xxxxxx X. Xxxxxxx, Chairman
and Chief Executive Officer
October 23, 1996
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