Exhibit 10.1
CONVERTIBLE LOAN AGREEMENT
This Loan Agreement ("Agreement") is entered into by and between
American Consolidated Management Group, Inc., a Utah corporation (the "Company")
and Xxxxxx X. Xxx Xxxxx ("Lender") to be effective as of the 3rd day of
November, 2005.
WITNESSETH:
WHEREAS, the Company is in need of immediate capital to fund its
planned operations.
WHEREAS, Lender is willing to make a loan to the Company in the
aggregate principal amount of TWENTY-FIVE THOUSAND DOLLARS ($25,000 USD) upon
the terms and conditions set forth herein and the Company is willing to borrow
the stated amount upon such terms.
NOW, THEREFORE, IT IS AGREED AS FOLLOWS:
Section 1. The Loan.
1.1. Lender hereby loans the Company the aggregate principal amount of
TWENTY-FIVE THOUSAND DOLLARS ($25,000) (the "Loan").
1.2. The Company shall use the net proceeds of the Note for working
capital and other purposes.
Section 2. Finance Charges. All outstanding principal shall bear interest at the
rate of twelve percent (12%) per annum. Interest will be computed on the basis
on a 360-day year for actual days elapsed.
Section 3. Payments. Principal and interest shall be due and payable in a single
balloon payment on the one year anniversary of this Agreement. The Company may
not prepay any amounts owed to Lender without Lender's written approval.
Payments shall be applied first to late charges and collection costs, if any,
then to accrued interest to the date of payment, and then to the principal
outstanding.
Section 4. Deliveries. Contemporaneously with the execution of this Agreement,
the parties shall deliver to each other the following:
(a) The properly executed Note, in substantially for the form attached
hereto as Exhibit A, of even date herewith by and between Lender and the Company
in the principal amount of $25,000.
(b) The Loan proceeds in the amount of $25,000.
Section 5. Representations of Lender.
5.1 Lender's representations in this Agreement are complete and
accurate to the best of Lender's knowledge, and the Company may rely upon them.
5.2 Lender is able to bear the economic risk of an investment in the
Note and the underlying common stock (individually and collectively, the
"Securities") can afford the loss of the entire investment in the Securities,
and will, after making an investment in the Securities, have sufficient means of
providing for Lender's current needs and possible future contingencies.
5.3 The Securities will not be sold by Lender without registration
under applicable securities acts or a proper exemption from such registration.
5.4 The Securities subscribed for herein are being acquired for
Lender's own account and risk, for investment purposes, and not on behalf of any
other person or with a view to, or for resale in connection with, any
distribution thereof within the meaning of the Securities Act of 1933. Lender is
aware that there are substantial restrictions on the transferability of the
Securities.
5.5 Lender has had access to any and all information concerning the
Company that Lender and his financial, tax and legal advisors required or
considered necessary to make a proper evaluation of this investment.
Specifically, Lender has had the opportunity to review the Company's annual
report on Form 10-KSB for the fiscal year ended December 31, 2004 and all
subsequent filings by the Company with the Securities and Exchange Commission.
The Company does not have sufficient assets to repay the Loan and has had
minimal operations in past years. In making the decision to acquire the
Securities, the Lender and his advisers have relied solely upon their own
independent investigations, and fully understand that there are no guarantees,
assurances or promises in connection with any investment hereunder and
understand that the particular tax consequences arising from this investment in
the Company will depend upon his individual circumstances. Lender further
understands that no opinion is being given as to any securities or tax matters
involving the offering.
5.6 Lender also understands and agrees that stop transfer instructions
relating to the Securities will be placed in the Company's transfer ledger, and
that the Securities will bear a legend in substantially the following form:
THIS SECURITIES REPRESENTED BY THIS CERTIFICATE 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 A REGISTRATION STATEMENT IN EFFECT WITH RESPECT
TO THESE SECURITIES UNDER SUCH ACT OR AN OPINION OF COUNSEL
SATISFACTORY TO THE COMPANY THAT SUCH REGISTRATION IS NOT
REQUIRED OR UNLESS SOLD PURSUANT TO RULE 144 OR RULE 144A OF
SUCH ACT.
5.7 Lender knows that the Securities are offered and sold pursuant to
exemptions from registration under the Securities Act of 1933, and state
securities law based, in part, on these warranties and representations, which
are the very essence of this Agreement, and constitute a material part of the
bargained-for consideration without which this Agreement would not have been
executed.
5.8 Lender has the capacity to protect Lender's own interest in
connection with this transaction or has a pre-existing personal or business
relationship with the Company or one or more of its officers, directors or
controlling persons consisting of personal or business contacts of a nature and
duration such as would enable a reasonably prudent purchaser to be aware of the
character, business acumen and general business and financial circumstances of
such person with whom such relationship exists.
5.9 This Agreement when fully executed and delivered by the Company
will constitute a valid and legally binding obligation of Lender, enforceable in
accordance with its terms. Lender was not formed or organized for the specific
purpose of acquiring the Securities. In the event Lender is an entity, the
purchase of the Securities by Lender is a permissible investment in accordance
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with Lender's Articles of Incorporation or other similar charter document, and
has been duly approved by all requisite action by the entity's owners,
directors, officers or other authorized managers. The person signing this
document and all documents necessary to consummate the purchase of the
Securities has all requisite authority to sign such documents on behalf of
Lender.
5.10 Lender represents that Lender is a sophisticated and an
"accredited investor" as defined under Rule 501 of Regulation D.
Section 6. Representations of the Company.
6.1. The Company is a duly organized and validly existing corporation
in good standing under the laws of Utah.
6.2. The Company has all necessary corporate power and authority to
enter into and perform this Agreement. The Company has taken all corporate
action necessary to authorize this Agreement.
6.3. The execution and delivery of this Agreement, the performance by
the Company of its obligations under this Agreement, and the consummation of the
transactions provided for in this Agreement have been duly and validly
authorized by all necessary corporate action on the part of the Company. This
Agreement will, as of the effective date, be duly executed and delivered by the
Company and will constitute the valid and binding agreement of the Company
enforceable against the Company in accordance with its respective terms, subject
to applicable bankruptcy, insolvency and other similar laws affecting the
enforceability of creditors' rights generally, general equitable principles and
the discretion of courts in granting equitable remedies.
6.4. The execution and delivery by the Company of this Agreement, the
performance by the Company of its obligations hereunder, and the consummation of
the transactions contemplated hereby, do not and will not (a) violate or
conflict with or result in a breach of any provision of the Articles of
Incorporation or Bylaws of the Company; (b) require any consent, approval or
notice under, or registration under or payment on account of, or conflict with,
or result in a violation or breach of, or constitute (with or without the giving
of notice or the lapse of time or both) a default (or give rise to any right of
termination, modification (including, in the case of leases, any change in the
amount or nature of the rent), cancellation or acceleration or result in the
creation or imposition of any lien upon the property of the Company) under, any
of the terms, conditions or provisions of any (i) note, bond, mortgage,
indenture, license, lease, agreement or other instrument or obligation to which
the Company is a party or by which any portion of its properties or assets may
be bound, or (ii) permit, license, approval, franchise or other governmental or
regulatory authorization held or used by or binding on the Company; (c) violate
or contravene any law, statute, rule or regulation, or any order, writ,
judgment, injunction, decree or award of any governmental authority binding on
the Company; or (d) require any action, consent, approval or authorization of,
or review by, or declaration, registration or filing with, or notice to, any
governmental authority, except such filings as may be required in connection
with applicable securities laws.
6.5. The Company is not obligated to pay any broker's fee, finder's
fee, investment banker's fee or other similar transaction fee in connection with
the transactions contemplated hereby.
Section 7. Miscellaneous.
7.1. This Agreement, including any attached exhibits or schedules,
constitutes the entire agreement between the parties pertaining to the subject
matter contained in this Agreement. All prior and contemporaneous agreements,
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representations and understandings of the parties, oral or written, are
superseded by and merged in this Agreement. No supplement, modification or
amendment of this Agreement shall be binding unless in writing and executed by
the Company and Lender.
7.2. The provisions of this Agreement shall be binding upon the
Company, its legal representatives, successors or assigns, and shall be for the
benefit of Lender and its respective successors and assigns.
7.3. The headings of this Agreement are for purposes of reference only
and shall not limit or define the meaning of any provision of this Agreement.
This Agreement may be executed in any number of counterparts, each of which
shall be an original but all of which shall constitute one and the same
instrument.
7.4. If any action is brought by either party in respect to its rights
under this Agreement, or to obtain an interpretation thereof, the prevailing
party shall be entitled to reasonable attorneys' fees and court costs as
determined by the court.
7.5. No waiver of any of the provisions of this Agreement shall
constitute a waiver of any other provision, whether or not similar, nor shall
any waiver be a continuing waiver. Except as expressly provided in this
Agreement, no waiver shall be binding unless executed in writing by the party
making the waiver. Either party may waive any provision of this Agreement
intended for its benefit; provided, however, such waiver shall in no way excuse
the other party from the performance of any of its other obligations under this
Agreement.
7.6. The representations, warranties, acknowledgments and agreements
made by Lender shall survive the closing of the transaction described herein and
run in favor of, and for the benefit of, the Company. The representations,
warranties, acknowledgments and agreements made by the Company shall survive the
closing of the transaction described herein and run in favor of, and for the
benefit of, Lender.
7.7. The obligations of the parties hereto shall not be delegated or
assigned to any other party without the prior written consent of the other
party.
7.8. This Agreement shall be governed by the laws of the State of
Georgia.
7.9. Any notices required or permitted hereunder shall be furnished in
writing to each party at such party's address appearing on the signature page
below or as such party may otherwise direct in writing actually received by the
other party.
7.10. The Company shall do, execute, acknowledge and deliver all such
further acts, deeds, assignments, transfers and assurances as Lender may
reasonably require to effectuate the purposes of this Agreement.
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IN WITNESS WHEREOF, the undersigned have executed this Agreement to be
effective as of the date first written above.
AMERICAN CONSOLIDATED MANAGEMENT GROUP, INC.
By /s/ Xxxxxx X. Xxxxxx /s/ Xxxxxx X. Xxx Xxxxx
----------------------- ------------------------
Its: Director Xxxxxx X. Xxx Xxxxx
Address: Address:
000 Xxxxxxxx Xx. 00 Xxxxxx Xxxx Xxxxx
Xxxxx X.X. 00000 Xxxxx, X.X. 00000
Phone: 000-000-0000 Phone: 000-000-0000
Fax: 000-000-0000 Fax: 000-000-0000
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EXHIBIT A
NEITHER THIS NOTE NOR THE SECURITIES INTO WHICH THIS NOTE IS CONVERTIBLE HAVE
BEEN REGISTERED 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 THE REGISTRATION REQUIREMENTS THEREUNDER.
AMERICAN CONSOLIDATED MANAGEMENT GROUP, INC.
CONVERTIBLE PROMISSORY NOTE
$25,000 November 3, 2005
American Consolidated Management Group, Inc., a Utah corporation (the
"Company"), for value received, promises to pay to Xxxxxx X. Xxx Xxxxx or his
permitted assigns (the "Holder") the principal sum of $25,000 plus interest
thereon from the date of this Note until paid at a rate of twelve percent (12%)
per annum. This Note is being issued and delivered pursuant to that certain
Convertible Loan Agreement, dated as of November 3, 2005 (the "Loan Agreement"),
by and among the Company and the Holder.
This Note will automatically mature and the entire outstanding
principal amount, together with accrued interest, shall become due and payable
in a single balloon payment on the one year anniversary of the Loan Agreement,
unless prior to such date this Note is converted into shares of the Company's
common stock ("Common Stock") pursuant to Section 1 hereof.
Payments of both principal and interest are to be made at the address
of the Holder for the receipt of notices pursuant to Section 6(e), or at such
other place as the Holder shall designate to the Company in writing, in lawful
money of the United States of America. Interest on this Note shall be computed
on the basis of a 365-day year and actual days elapsed.
The Company may not prepay any portion of the outstanding amounts owed
on this Note without the written consent of Holder.
The following is a statement of the rights of the Holder and the
conditions to which this Note is subject, and to which the Holder, by the
acceptance of this Note, agrees:
1. Optional Conversion of Note. The entire outstanding amounts owing on
this Note may, at the Holder's option, be converted into fully paid and
nonassessable shares of Common Stock of the Company at the rate of one share of
Common Stock for every $.20 in amounts owing hereunder that are converted.
2. Mechanics of Conversion.
(a) Notice of Conversion. The Holder shall give written notice
to the Company of his election to convert this Note and shall state therein the
name or names in which the certificate or certificates for shares of Common
Stock are to be issued. The effective date of the Conversion shall be the date
such notice is received by the Company pursuant to Section 6(e) below.
(b) No Fractional Shares Upon Conversion. No fractional shares
of Common Stock shall be issued upon Conversion of this Note. In lieu of any
fractional shares to which the Holder would otherwise be entitled, the Company
shall pay cash equal to such fraction multiplied by the $.20 conversion price.
(c) Stock Certificates. At such time after the Conversion as
Holder presents this Note to the Company, the Company shall issue and deliver to
the Holder at the address listed below for receipt of notices, or to his nominee
or nominees, a certificate or certificates for the number of shares of Common
Stock to which it shall be entitled as aforesaid.
3. Charges, Taxes and Expenses. Issuance of a certificate or
certificates for shares of Common Stock upon the Conversion of this Note shall
be made without charge to the Holder for any issue or transfer tax or other
incidental expense in respect of the issuance of such certificate, all of which
taxes and expenses shall be paid by the Company.
4. No Rights as Stockholder. This Note does not entitle the Holder
hereof to any voting rights or other rights as a stockholder of the Company
prior to the Conversion.
5. Loss, Theft or Destruction of Note. Upon receipt by the Company of
evidence reasonably satisfactory to it of the loss, theft or destruction of this
Note and of indemnity or security reasonably satisfactory to it, the Company
will make and deliver a new Note which shall carry the same rights to interest
carried by this Note, stating that such Note is issued in replacement of this
Note, and this Note is cancelled, making reference to original date of issuance
of this Note (and any successors hereto) and dated as of such cancellation, in
lieu of this Note.
6. Miscellaneous.
(a) Reservation of Stock. The Company covenants that the
Company will at all times reserve from its authorized and unissued Common Stock
a sufficient number of shares to provide for the issuance of the Common Stock
upon the Conversion of this Note and, from time to time, will take all steps
necessary to amend its charter to provide sufficient reserves of shares of
Common Stock issuable upon conversion of this Note. The Company further
covenants that all shares that may be issued upon the exercise of rights
represented by this Note, upon exercise as set forth herein, will be free from
all taxes, liens and charges in respect of the issuance thereof (other than
taxes in respect of any transfer occurring contemporaneously or otherwise
specified herein).
(b) Issue Date. The provisions of this Note shall be construed
and shall be given effect in all respect as if it had been issued and delivered
by the Company on the earlier of the date hereof or the date of issuance of any
Note for which this Note is issued in replacement. This Note shall be binding
upon any successors or assigns of the Company.
(c) Restrictions. The Holder acknowledges that the shares of
Common Stock acquired upon the conversion of this Note will be subject to
restrictions upon its resale imposed by state and federal securities laws.
(d) Assignment. Neither this Note nor any of the shares of
Common Stock issuable upon conversion of this Note may be sold, assigned,
transferred, pledged or hypothecated or otherwise disposed of except pursuant to
an effective registration statement under the Securities Act or pursuant to an
available exemption from the registration requirements thereunder and in
compliance with applicable state securities laws.
(e) Notices. All notices or other communications required or
permitted hereunder shall be in writing and shall be effective (i) five (5) days
after deposit with the U.S. Postal Service or other applicable postal service,
if delivered by first class mail, postage prepaid, (ii) upon delivery, if
delivered by hand, (iii) one business day after the business day of deposit with
Federal Express or similar overnight courier, freight prepaid, guaranteeing
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overnight delivery, or (iv) upon telephone or further electronic communication
from the recipient acknowledging receipt (whether automatic or manual from
recipient), if delivered by facsimile or electronic transmission, and shall be
addressed (A) to the Holder at ______________________________, and (B) to the
Company at the address of its principal corporate offices, Attention: Chief
Executive Officer, or at such other address as may be designated in writing to
the other party.
(f) Enforcement. The Company shall pay all reasonable fees and
expenses, including reasonable attorney's fees, incurred by the Holder in the
enforcement in any of the Company's obligations hereunder not performed when
due.
(g) Governing Law. This Note shall be governed by and
construed in accordance with the laws of the State of Georgia, without regard to
its principles of conflicts of law.
IN WITNESS WHEREOF, American Consolidated Management Group, Inc. has
caused this Convertible Promissory Note to be executed by its officer thereunto
duly authorized.
AMERICAN CONSOLIDATED MANAGEMENT GROUP, INC.
By:
----------------------------------------
Its:
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