Contract
Exhibit
10.30
NEITHER
THIS SECURITY NOR THE SECURITIES INTO WHICH THIS SECURITY IS CONVERTIBLE HAVE
BEEN REGISTERED WITH THE SECURITIES AND EXCHANGE COMMISSION OR THE SECURITIES
COMMISSION OF ANY STATE IN RELIANCE UPON AN EXEMPTION FROM REGISTRATION UNDER
THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), AND, ACCORDINGLY,
MAY NOT BE OFFERED OR SOLD EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION
STATEMENT UNDER THE SECURITIES ACT OR PURSUANT TO AN AVAILABLE EXEMPTION FROM,
OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT AND IN ACCORDANCE WITH APPLICABLE STATE SECURITIES LAWS AS
EVIDENCED BY A LEGAL OPINION OF COUNSEL TO THE TRANSFEROR TO SUCH EFFECT, THE
SUBSTANCE OF WHICH SHALL BE REASONABLY ACCEPTABLE TO THE COMPANY.
$640,000.00
JANUARY 28, 2009 CONVERTIBLE NOTE
FOR VALUE
RECEIVED, ACCESSKEY, INC., a Nevada corporation, having a place of business at
0000 X0 Xxxxxxx Xxxx XX, Xxxxx 000, Xxxxxxxxxxx, Xxx Xxxxxx, 00000, INC. (the
“Maker” or the “Company”), hereby promises to pay to the order of Physicians
Healthcare Management Group, Inc., a Nevada corporation (“Holder”), having his
principal address at 000 X. Xxxxx Xxxxxxxxx Xxxx., Xxxxx 000, Xxxxx,
XX 00000, the sum of $640,000.00.
1. Maturity. The
amount outstanding under this Note will be due and payable at the address of
Holder or such other place as Holder may designate on the one year anniversary
of this Note (the “Maturity Date”). No advances shall be made by
Holder after the Maturity Date.
2. Payments of Interest and
Principal. $150,000.00 shall be payable on April 15, 2009;
$150,000.00 shall be payable on June 15, 2009; $150,000.00 shall be payable on
September 15, 2009 and the balance shall be payable on the Maturity
Date.
3. Interest
Rate. The outstanding principal balance of this Note shall bear
interest at a rate per annum equal to 10.0% per annum, amortized
monthly.
4. Optional
Prepayment. Subject to customary equity conditions, the Company may
at any time, upon 30 days written notice, prepay all of the outstanding Notes on
a pro-rata basis at 110% of the outstanding principal balance. In the event that
Maker sends a Prepayment Notice to Holder, Holder may elect prior to the
Prepayment Date to convert into common stock of the Company pursuant to Section
5 hereof, all or part of the amount of principal to be repaid by the proposed
Prepayment instead of receiving such prepayment.
5. Optional/Mandatory
Conversion. At any time prior to repayment of all amounts due as provided under
the Note, $300,000 of the
Note shall be convertible at the option of the Holder into fully paid and
non-assessable shares of Company Common Stock. Company payments of the
outstanding principal balance shall be applied first to the non-convertible
portion of the Note, and then to the convertible portion of the
Note. The number of shares of Company Common Stock that Holder shall
be entitled to receive upon conversion shall be equal to the number attained by
dividing the principal, including accrued interest pursuant to the Note being
converted by the Conversion Price. The “Conversion Price” shall 50%
of the lesser of the following:
a) $.0125
b) the
closing bid price for Common Stock on the trading day one day prior to a Holder
Notice of Conversion, or
c) the
average closing bid price for Common Stock on the five trading days immediately
prior to a Holder Notice of Conversion, or
if a
registration statement is not effective on the 180 day anniversary of Closing
(“d” and “e” not otherwise applying),
d) the
closing bid price for Common Stock on the 180 day anniversary of Closing,
or
e) the
average closing bid price for Common Stock on the five trading days immediately
prior to the 180 day anniversary of Closing.
A. In
order to exercise the conversion privilege, Holder shall give written notice of
conversion to the Company stating Xxxxxx’s election to convert this Note or the
portion thereof in whole or in part, as specified in said notice. As
promptly as practicable after receipt of the notice, the Company shall issue and
shall deliver to Holder a certificate or certificates for the number of full
shares of Company Common Stock issuable upon the conversion of this Note or
portion thereof registered in the name of Holder in accordance with the
provisions of this Section 5.
B. Each
conversion shall be deemed to have been effected on the date the conversion
notice shall have been received by the Company, as aforesaid, and on said date,
Holder shall be deemed to have become the holder of record of the shares of
Common Stock issuable upon such conversion. No fractional shares of
Common Stock shall be issued upon conversion of this Note. Any
amounts so converted shall not be reborrowed.
C. The
Holder shall not be entitled to shares upon conversion, if such conversion would
result in beneficial ownership by the Holder and its affiliates of more than
4.99% of the outstanding shares of common stock of the Company on such exercise
or conversion date, including:
(i) the
number of shares of common stock beneficially owned by the Holder and its
affiliates, and
(ii) the
number of shares of common stock issuable upon the exercise of the warrant
and/or options and/or conversion.
For the
purposes of this provision as set forth in the immediately preceding sentence,
beneficial ownership shall be determined in accordance with Section 13(d) of the
Securities Exchange Act of 1934, as amended, and Regulation 13d-3
thereunder. Subject to the foregoing, the Holder shall not be limited
to aggregate warrant and/or option exercises and/or conversion of only 4.99% and
aggregate warrant and/or option exercises and/or conversion by the Holder may
exceed 4.99%. The Holder may void the exercise limitation described
in this Section upon 61 days prior written notice to the Company. The
Holder may allocate which of the equity of the Company deemed beneficially owned
by the Holder shall be included in the 4.99% amount described above and which
shall be allocated to the excess above 4.99%.
In the
event that a conversion notice is sent to the Company, and the shares are not
issuable to the Holder because it would cause the Holder’s shareholdings in the
company to exceed 4.99%, the Company shall instead issue a non-interest bearing
Fixed Price Convertible Note, with the same terms as herein, except that the
conversion price shall be fixed, equal to the conversion price on the notice of
conversion.
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6. Security. There
shall be no security for the repayment of this Note.
7. Short-Hold
Covenant. Holder covenants and agrees that, so long as any
indebtedness is outstanding hereunder, Xxxxxx shall not at any time hold or
maintain a short position with respect to the securities of the
Maker.
8. Covenants. Maker
covenants and agrees that, so long as any indebtedness is outstanding hereunder,
it will comply with each of the following covenants (except in any case where
Xxxxxx has specifically consented otherwise in writing):
A. Notice of Event of
Default. Maker shall furnish to Holder notice of the occurrence of
any Event of Default (as defined herein) within five (5) days after it becomes
known to an executive officer of Maker.
9. Event of
Default. For purposes of this Note, the Maker shall be in default
hereunder (and an “Event of Default” shall have occurred hereunder)
if:
A. Maker shall fail to pay
when due any payment of principal, interest, fees, costs, expenses or any other
sum payable to Holder hereunder or otherwise;
B. Maker shall default in
the performance of any other agreement or covenant contained herein (other than
as provided in subparagraph A above), and such default shall continue uncured
for twenty (20) days after notice thereof to Maker given by Xxxxxx, or if an
Event of Default shall occur under any other Loan Document;
C. Maker: becomes insolvent,
bankrupt or generally fails to pay its debts as such debts become due; is
adjudicated insolvent or bankrupt; admits in writing its inability to pay its
debts; or shall suffer a custodian, receiver or trustee for it or substantially
all of its property to be appointed and if appointed without its consent, not be
discharged within thirty (30) days; makes an assignment for the benefit of
creditors; or suffers proceedings under any law related to bankruptcy,
insolvency, liquidation or the reorganization, readjustment or the release of
debtors to be instituted against it and if contested by it not dismissed or
stayed within ten (10) days; if proceedings under any law related to bankruptcy,
insolvency, liquidation, or the reorganization, readjustment or the release of
debtors is instituted or commenced by Maker; if any order for relief is entered
relating to any of the foregoing proceedings; if Maker shall call a meeting of
its creditors with a view to arranging a composition or adjustment of its debts;
or if Maker shall by any act or failure to act indicate its consent to, approval
of or acquiescence in any of the foregoing.
10. Consequences of
Default. Upon the occurrence of an Event of Default and at any time
thereafter, the entire unpaid principal balance of this Note, together with
interest accrued thereon and with all other sums due or owed by Maker hereunder,
shall become immediately due and payable. In addition, the principal
balance and all past-due interest shall thereafter bear interest at the rate of
18% per annum until paid.
11. Liquidated
Damages/Remedies not Exclusive.
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A. The
remedies of Holder provided herein or otherwise available to Holder at law or in
equity shall be cumulative and concurrent, and may be pursued singly,
successively and together at the sole discretion of Holder, and may be exercised
as often as occasion therefore shall occur; and the failure to exercise any such
right or remedy shall in no event be construed as a waiver or release of the
same.
B. Liquidated
Damages In the event that the Company fails to deliver the shares when due,
whether by Section 4, or 5, or otherwise, the number of shares otherwise due
shall increase by 3% for each month or partial month, until the Company does
deliver such shares. The parties agree that this is a reasonable amount for
liquidated damages, given the difficulty to determine, in advance, what actual
damages may lie.
12. Notice. All
notices required to be given to any of the parties hereunder shall be in writing
and shall he deemed to have been sufficiently given for all purposes when
presented personally to such party or sent by certified or registered mail,
return receipt requested, to such party at its address first set forth above.
Such notice shall be deemed to
be given when received if delivered personally or five (5) business days after
the date mailed. Any notice mailed shall be sent by certified or
registered mail. Any notice of any change in such address 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 in writing by the party
entitled to receive such notice.
13. Severability. In the
event that any provision of this Note is held to be invalid, illegal or
unenforceable in any respect or to any extent, such provision shall nevertheless
remain valid, legal and enforceable in all such other respects and to such
extent as may be permissible. Any such invalidity, illegality or
unenforceability shall not affect any other provisions of this Note, but this
Note shall be construed as if such invalid, illegal or unenforceable provision
had never been contained herein.
14. Successors and Assigns.
This Note inures to the benefit of the Holder and binds the Maker, and its
respective successors and assigns, and the words “Holder” and “Maker” whenever
occurring herein shall be deemed and construed to include such respective
successors and assigns.
15. Assignment.
The Maker may assign or transfer its duties hereunder with the written consent
of the Holder.
16. Waiver
of Formalities. Except as provided in this Note, presentment, protest, notice,
notice of dishonor, demand for payment, notice of protest and notice of
non-payment are hereby waived.
17. Non-Waiver
by Holder. The failure or delay by the Holder of this Note in exercising any of
his rights hereunder in any instance shall not constitute a waiver thereof in
that or any other instance. The Holder of this Note may not waive any of its
rights, except in an instrument in writing signed by the Holder.
18. Entire
Agreement. This Note embodies the entire understanding and agreement
between the parties hereto with respect to the subject matter hereof and
supersedes all prior agreements and understandings, whether express or implied,
oral and written.
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19. Modification of
Agreement. This Note may not be modified, altered or amended, except
by an agreement in writing signed by both the Maker and the Holder.
20. Governing
Law. This instrument shall be construed according to and governed by
the laws of the State of Florida.
21. Consent to Jurisdiction
and Service of Process. Maker irrevocably appoints each and every
officer of Maker as its attorney upon whom may be served any notice, process or
pleading in any action or proceeding against it arising out of or in connection
with this Note; and Maker hereby consents that any action or proceeding against
it be commenced and maintained in any court within the State of Florida by
service of process on any such, officer; and Maker agrees that the courts of the
State of Florida shall have jurisdiction with respect to the subject matter
hereof and the person of Maker. Notwithstanding the foregoing, Holder, in its
absolute discretion may also initiate proceedings in the courts of any other
jurisdiction in which Maker may be found or in which any of its properties may
be located.
IN
WITNESS WHEREOF, Xxxxx has duly executed this Note as of the date written
above.
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MAKER
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ACCESSKEY,
INC.
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/s/
Xxxxx
Xxxxxx
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Xxxxx
Xxxxxx,
President
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