EXHIBIT 10.10
THIS NOTE AND THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED. THEY MAY NOT
BE SOLD, OFFERED FOR SALE, PLEDGED OR HYPOTHECATED IN THE ABSENCE OF AN
EFFECTIVE REGISTRATION STATEMENT AS TO THE SECURITIES UNDER SAID ACT OR
AN OPINION OF COUNSEL SATISFACTORY TO THE CORPORATION THAT SUCH
REGISTRATION IS NOT REQUIRED.
THE XXXXXXXXX.XXX, INC
CONVERTIBLE PROMISSORY NOTE
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Note No. 2002-1 September 30, 2002
$___________ New York, New York
FOR VALUE RECEIVED, THE XXXXXXXXX.XXX, INC a Delaware corporation
("Company") promises to pay to ___________ ("Holder") or its registered assigns,
the principal sum of $___________, or such lesser amount as shall then equal the
outstanding principal amount hereof, together with simple interest from the date
of this Note on the unpaid principal balance at a rate equal to eight percent
(8%) per annum, computed on the basis of the actual number of days elapsed and a
year of 365 days. All unpaid principal, together with any then unpaid and
accrued interest and other amounts payable hereunder, shall be due and payable
on the earlier of (i) September 1, 2003 (the "Maturity Date") or (ii) when such
amounts are made automatically due and payable upon or after the occurrence of
an Event of Default (as defined below).
This Note is one of a series of Notes having serial numbers: "2002 -
01" et. seq. (the "Notes") issued in September 2002, not to exceed $1,000,000 in
total principal amount. The Notes shall rank equally without preference or
priority of any kind over one another and all payments on account of principal
and interest with respect to any of the Notes shall be applied ratably and
proportionately on all outstanding Notes on the basis of the principal amount of
outstanding indebtedness represented thereby.
The following is a statement of the rights of Xxxxxx and the conditions
to which this Note is subject, and to which the Holder hereof, by the acceptance
of this Note, agrees:
1. Definitions. As used in this Note, the following capitalized terms have the
following meanings:
(a) For purposes of the foregoing, the "Articles" shall mean the
Articles of Incorporation of Company.
(b) "Commission" shall mean the Securities and Exchange Commission or
any other federal agency at the time administering the Securities Act.
(c) "Company" includes the corporation initially executing this Note
and any Person which shall succeed to or assume the obligations of Company under
this Note.
(d) "Holder" shall mean the Person specified in the introductory
paragraph of this Note or any Person who shall at the time be the registered
holder of this Note.
(e) "Indebtedness" of shall mean and include the aggregate amount of,
without duplication (i) all obligations for borrowed money, (ii) all obligations
evidenced by bonds, debentures, notes or other similar instruments, (iii) all
obligations to pay the deferred purchase price of property or services (other
than accounts payable incurred in the ordinary course of business determined in
accordance with generally accepted accounting principals), (iv) all obligations
with respect to capital leases, (v) all guaranty obligations, (vi) all
obligations created or arising under any conditional sale or other title
retention agreement with respect to property acquired by such Person, and (vii)
all reimbursement and other payment obligations, contingent or otherwise, in
respect of letters of credit.
(f) "Investment" of any Person shall mean any loan or advance of funds
by such Person to any other Person (other than advances to employees of such
Person for moving and travel expense, drawing accounts and similar expenditures
in the ordinary course of business), any purchase or other acquisition of any
equity securities or Indebtedness of any other Person, any capital contribution
by such Person to or any other investment by such Person in any other Person
(including, without limitation, any Indebtedness incurred by such Person of the
type described in clauses (i) and (ii) of the definition of "Indebtedness" on
behalf of any other Person); provided, however, that Investments shall not
include accounts receivable or other indebtedness owed by customers of such
Person which are current assets and arose from sales in the ordinary course of
such Person's business.
(g) "Person" shall mean and include an individual, a partnership, a
corporation (including a business trust), a joint stock company, a limited
liability company, an unincorporated association, a joint venture or other
entity or a governmental authority.
(h) "Restricted Securities" shall mean the securities of the Company
required to bear the legend set forth in Section 9(c) hereof.
2. Interest. Accrued interest on this Note shall be payable at such time as the
outstanding principal amount hereof shall be paid in full.
3. Events of Default. The occurrence of any of the following shall constitute an
"Event of Default" under this Note:
(a) Failure to Pay. If this Note has not been previously converted
pursuant to the terms hereunder, Company shall fail to pay any principal or
interest payment within seven (7) business days of the Maturity Date hereunder;
or
(b) Voluntary Bankruptcy or Insolvency Proceedings. Company shall (i)
apply for or consent to the appointment of a receiver, trustee, liquidator or
custodian of itself or of all or a substantial part of its property, (ii) make a
general assignment for the benefit of its or any of its creditors, (iii) be
dissolved or liquidated in full or in part, or (iv) commence a voluntary case or
other proceeding seeking liquidation, reorganization or other relief with
respect to itself or its debts under any bankruptcy, insolvency or other similar
law now or hereafter in effect or consent to any such relief or to the
appointment of or taking possession of its property by any official in an
involuntary case or other proceeding commenced against it; or
(c) Involuntary Bankruptcy or Insolvency Proceedings. Proceedings for
the appointment of a receiver, trustee, liquidator or custodian of Company or of
all or a substantial part of the property thereof, or an involuntary case or
other proceedings seeking liquidation, reorganization or other relief with
respect to Company or the debts thereof under any bankruptcy, insolvency or
other similar law now or hereafter in effect shall be commenced and an order for
relief entered or such proceeding shall not be dismissed or discharged within
one hundred twenty (120) days of commencement.
4. Rights of Holder upon Default. Upon the occurrence or existence of an Event
of Default referred to in Paragraph 3(a) and at any time thereafter during the
continuance of such Event of Default, Holder may, by written notice to Company,
declare all outstanding obligations payable by Company hereunder to be
immediately due and payable without presentment, demand, protest or any other
notice of any kind, all of which are hereby expressly waived, anything contained
herein to the contrary notwithstanding. Upon the occurrence or existence of any
Event of Default described in Paragraphs 3(b) and 3(c), immediately and without
notice, all outstanding obligations payable by Company hereunder shall
automatically become immediately due and payable, without presentment, demand,
protest or any other notice of any kind, all of which are hereby expressly
waived, anything contained herein to the contrary notwithstanding.
5. Conversion.
(a) Voluntary Conversion. If this Note has not been (i) converted
pursuant to Section 5(c) hereof; or (ii) prepaid pursuant to Section 14 hereof,
during the period, if any, beginning upon the closing of a merger or
consolidation of the Company in which the stockholders of the Company as of the
date hereof own, in the aggregate, less than 50% of the combined voting power of
the entity and ending on the Maturity Date, the Holders shall have the option,
in their sole discretion, to convert this Note into shares of common stock of
the Company ("Common Stock"). The Company shall give the Holders ten (10) days
prior written notice of such merger or consolidation of the Company. In the
event of the conversion of this Note into shares of Common Stock pursuant to
this Section 5(a), this Note shall convert into that number of fully paid and
nonassessable shares of
Common Stock determined by dividing all of the unpaid principal and interest due
on this Note as of the date of conversion by the greater of: (y) the amount that
is equal to the product of the closing bid price per share for the Common Stock,
as reported on the over-the-counter electronic bulletin board, or such other
public market that the Company's Common Stock is then traded, on the date hereof
and seventy-five percent (75%); and (z) 2.50. The Conversion Price shall be
subject to adjustment for stock splits, stock dividends and the like. As a
condition precedent to conversion of this Note into shares of Common Stock, the
Holders will be required to execute a stock purchase agreement and other
agreements customarily prepared in connection with the conversion of a Note into
shares of Common Stock.
(b) Conversion at Maturity Date. If this Note has not been (i)
converted pursuant to Section 5(a) or Section 5(c) hereof; or (ii) prepaid
pursuant to Section 14 hereof, on the Maturity Date, the Holder shall have the
option to choose to receive from the Company, in lieu of cash, that number of
fully paid and nonassessable shares of Common Stock determined by dividing all
of the unpaid principal and interest due on this Note as of the date of
conversion by the greater of: (y) the amount that is equal to the product of the
closing bid price per share for the Common Stock, as reported on the
over-the-counter electronic bulletin board, or such other public market that the
Company's Common Stock is then traded, on the date hereof and seventy-five
percent (75%); and (z) 2.50. As a condition precedent to conversion of this Note
into shares of Common Stock, the Holders will be required to execute a stock
purchase agreement and other agreements customarily prepared in connection with
the conversion of a Note into shares of Common Stock.
(c) Prepayment Conversion. Notwithstanding anything contained in this
Note to the contrary, the Company shall have the option at any time on or prior
to the Maturity Date to prepay this Note by issuing that number of fully paid
and nonassessable shares of Common Stock determined by dividing all of the
unpaid principal and interest due on this Note as of the date of conversion by
the greater of: (y) the amount that is equal to the product of the closing bid
price per share for the Common Stock, as reported on the over-the-counter
electronic bulletin board, or such other public market that the Company's Common
Stock is then traded, on the date hereof and seventy-five percent (75%); and (z)
0.00.Xx a condition precedent to conversion of this Note into shares of Common
Stock, the Holders will be required to execute a stock purchase agreement and
other agreements customarily prepared in connection with the conversion of a
Note into shares of Common Stock.
(d) Issuance of Securities on Conversion. As soon as practicable after
conversion of this Note, the Company, at its expense, will cause to be issued in
the name of and delivered to the Holder of this Note, a certificate or
certificates representing the number of fully paid and nonassessable shares of
Common Stock to which Holder shall be entitled on such conversion. No fractional
shares will be issued on conversion of this Note. If Holder would otherwise be
entitled to a fractional share, Holder shall receive a cash payment equal to the
per share price of the Common Stock (subject to adjustment, as applicable)
multiplied by the fractional share the Holder would otherwise be entitled to
receive.
(e) Termination of Rights. All rights with respect to this Note shall
terminate upon (i) the issuance of shares of Common Stock (as applicable) upon
conversion of this Note pursuant to this Section 5; or (ii) upon prepayment
pursuant to Section 14 hereof, whether or not this Note has been surrendered.
Notwithstanding the foregoing, the Holder agrees to surrender this Note to the
Company for cancellation as soon as is practicable following conversion of this
Note.
6. Representations of the Company. The Company represents and warrants to the
Holder as follows:
(a) Organization and Standing. The Company is a corporation duly
organized and existing under, and by virtue of, the laws of the State of
Delaware and is in good standing under such laws. The Company has requisite
corporate power and authority to carry on its business as presently conducted.
(b) Corporate Power. The Company has all requisite legal and corporate
power and authority to execute and deliver this Note and to carry out and
perform its obligations under the terms of this Note.
(c) Authorization. All corporate action on the part of the Company and
its directors necessary for the authorization, sale, issuance and delivery of
this Note and the performance of all of the Company's obligations hereunder has
been taken.
(d) Compliance With Other Instruments. The Company is not in violation
of any provisions of its Articles of Incorporation or Bylaws or in violation or
default of any provision of any instrument, judgment, order, writ, decree or
contract to which it is a party or by which it is bound or any provision of
federal or state statute, rule or regulation applicable to the Company, where
such violation or default would have a material adverse effect on the business
of the Company.
7. Representations of the Holder. The Holder hereby represents and warrants to
the Company with respect to the purchase of this Note as follows:
(a) Investment. Holder understands that the investment in this Note is
a speculative investment, and represents that it is aware of the business
affairs and financial condition of the Company, and has acquired sufficient
information about the Company to reach an informed and knowledgeable decision to
acquire this Note, and that it is purchasing this Note for investment for its
own account only and not with a view to, or for resale in connection with, any
"distribution" within the meaning of the Securities Act of 1933, as amended (the
"Securities Act") or applicable state securities laws. The Holder further
represents that it understands that this Note and any shares of equity
securities of the Company issued upon conversion of this Note (the "Note
Shares") have not been registered under the Securities Act or applicable state
securities laws by reason of specific exemptions therefrom, which exemptions
depend upon, among other things, the bona fide nature of the Holder's investment
intent as expressed herein. The Holder acknowledges and understands that this
Note and the Note Shares must be held indefinitely unless subsequently
registered under the Securities Act and qualified under applicable state
securities laws or unless exemptions from such
registration and qualification requirements are available, and that the Company
is under no obligation to register or qualify this Note or the Note Shares.
(b) Access to Data. The Holder acknowledges that it has received and
reviewed this Note and all the information it considers necessary or appropriate
for deciding whether to purchase this Note. The Holder has had an opportunity to
discuss the Company's business, management, financial affairs, financial
condition, prospects, properties and assets with its officers and directors. The
Holder understands that such discussions as well as any written information
issued by the Company were intended to describe the aspects of the Company's
business and prospects which it believes to be material but were not necessarily
a thorough or exhaustive description.
(c) Accredited Investor. The Holder is an "accredited investor" within
the meaning of Rule 501 of Regulation D under the Securities Act, as defined
herein.
8. Registration. The Company shall treat the person or entity in whose name this
Note shall be registered as the absolute owner of this Note for the purpose of
receiving payment of principal and interest and for all other purposes. This
Note may be exchanged only upon the surrender thereof by the registered holder
at the office or agency of the Company, for a new Note of like tenor and dated
as of such exchange. The Company shall maintain at the above-mentioned office or
agency a registry showing the name and address of the registered holder of this
Note. This Note may be surrendered for exchange or transfer at such office or
agency. The Company shall be entitled to rely in all respects upon such registry
and shall not be obligated to honor any notice to the contrary.
9. Restrictions on Transferability of Securities; Compliance with Securities
Act.
(a) Restrictions on Transferability. This Note and the Note Shares
shall not be sold, assigned, transferred or pledged except upon the conditions
specified in this Section 9, which conditions are intended to ensure compliance
with the provisions of the Securities Act. The Holder will cause any proposed
purchaser, assignee, transferee, or pledgee of this Note or the Note Shares held
by the Holder to agree to take and hold such securities subject to the
provisions and upon the conditions specified in this Section 9.
(b) Restrictive Legends. Each certificate or note representing this
Note or the Note Shares and any other securities issued in respect of the Note
Shares upon any stock split, stock dividend, recapitalization, merger,
consolidation or similar event, shall (unless otherwise permitted by the
provisions of Section 9(c) below) be stamped or otherwise imprinted with legends
in substantially the following form (in addition to any legend required under
applicable state securities laws):
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE BEEN
ACQUIRED FOR INVESTMENT AND HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "ACT" OR "SECURITIES
ACT"). SUCH SECURITIES MAY NOT
BE SOLD OR TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION
UNLESS THE TRANSFER IS IN ACCORDANCE WITH RULE 144 OR A
SIMILAR RULE AS THEN IN EFFECT UNDER THE ACT OR UNLESS THE
CORPORATION RECEIVES AN OPINION OF COUNSEL REASONABLY
ACCEPTABLE TO IT STATING THAT SUCH SALE OR TRANSFER IS EXEMPT
FROM THE REGISTRATION AND PROSPECTUS DELIVERY REQUIREMENTS OF
THE ACT. COPIES OF THE AGREEMENT COVERING THE PURCHASE OF
THESE SECURITIES AND RESTRICTING THEIR TRANSFER MAY BE
OBTAINED AT NO COST BY WRITTEN REQUEST MADE BY THE HOLDER OF
RECORD OF THIS CERTIFICATE TO THE SECRETARY OF THE CORPORATION
AT THE PRINCIPAL EXECUTIVE OFFICES OF THE CORPORATION.
The Holder consents to the Company making a notation on its records and
giving instructions to any transfer agent of this Note or the Note Shares in
order to implement the restrictions on transfer established in this Section 9.
(c) Notice of Proposed Transfers. The Holder of each certificate
representing Restricted Securities by acceptance thereof agrees to comply in all
respects with the provisions of this Section 9(c). Prior to any proposed sale,
assignment, transfer or pledge of any Restricted Securities, unless there is in
effect a registration statement under the Securities Act covering the proposed
transfer, the Holder thereof shall give written notice to the Company of such
Xxxxxx's intention to effect such transfer, sale, assignment or pledge. Each
such notice shall describe the manner and circumstances of the proposed
transfer, sale, assignment or pledge in sufficient detail, and shall be
accomplished at such Xxxxxx's expense by an unqualified written opinion of legal
counsel who shall be, and whose legal opinion shall be, reasonably satisfactory
to the Company, addressed to the Company, to the effect that the proposed
transfer of the Restricted Securities may be effected without registration under
the Securities Act, whereupon the Holder of such Restricted Securities shall be
entitled to transfer such Restricted Securities in accordance with the terms of
the notice delivered by the holder to the Company. Each certificate evidencing
the Restricted Securities transferred as above provided shall bear, except if
such transfer is made pursuant to Rule 144, the appropriate restrictive legend
set forth in Section 9(b) above, except that such certificate shall not bear
such restrictive legend if in the opinion of counsel for such holder and the
Company such legend is not required in order to establish compliance with any
provisions of the Securities Act.
10. Successors and Assigns. Subject to the restrictions on transfer described in
Sections 9 and 12, the rights and obligations of Company and Holder hereunder
shall be binding upon and benefit the successors, assigns, heirs, administrators
and transferees of the parties.
11. Waiver and Amendment. Any provision of this Note may be amended, waived or
modified upon the written consent of Company and Holder.
12. Assignment by Company. Neither this Note nor any of the rights, interests or
obligations hereunder may be assigned, by operation of law or otherwise, in
whole or in part, by Company without the prior written consent of Holder except
in connection with an assignment in whole to a successor corporation to Company,
provided, that, such successor corporation acquires all or substantially all of
Company's property and assets.
13. Notices. All notices and other communications required or permitted
hereunder shall be in writing, shall be effective when given, and shall in any
event be deemed to be given upon receipt or, if earlier, (a) five (5) days after
deposit with the U.S. Postal Service or other applicable postal service, if
delivered by first class mail, postage prepaid, (b) upon delivery, if delivered
by hand, (c) one business day after the business day of deposit with Federal
Express or similar overnight courier, freight prepaid or (d) one business day
after the business day of a facsimile transmission, if delivered by facsimile
transmission with copy by first class mail, postage prepaid, and shall be
addressed (i) if to the Holder, to ___________, and (ii) if to the Company, at
the address of its principal corporate offices (Attn: X. Xxxxxxx Xxxxxxxxx, Xx.
President), or at such other address as a party may designate by ten (10) days'
advance written notice to the other party pursuant to the provisions above.
14. Payment; Prepayment.
(a) Payment shall be made in lawful tender of the United States, if
this note is not otherwise converted pursuant to the terms hereunder.
(b) The Company shall have the right to prepay at any time, without
penalty, in whole or in part, the unpaid principal and interest due on this
Note.
15. Default Rate; Usury. In the event that any payment of principal or interest
provided for herein is not paid by Company when due (including the entire unpaid
balance of this Note in the event such amount is made immediately due and
payable pursuant to the terms hereof), then Company shall pay interest on such
amounts not paid when due at a rate per annum one percent (1%) higher than the
rate otherwise applicable hereunder. In the event any interest is paid on this
Note which is deemed to be in excess of the then legal maximum rate, then that
portion of the interest payment representing an amount in excess of the then
legal maximum rate shall be deemed a payment of principal and applied against
the principal of this Note.
16. Governing Law. This Note and all actions arising out of or in connection
with this Note shall be governed by and construed in accordance with the laws of
the State of New York, without regard to the conflicts of law provisions of the
State of New York or of any other state.
[THE REMAINDER OF THIS PAGE IS INTENTIONALLY BLANK]
IN WITNESS WHEREOF, Company has caused this Note to be issued as of the
date first written above.
THE XXXXXXXXX.XXX, INC.
By:
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ATTEST: X. Xxxxxxx Xxxxxxxxx, Xx.
Chairman, Chief Executive Officer and
President
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