Exhibit 4.4
PROMISSORY NOTE CANCELLATION AND REISSUANCE AGREEMENT
THIS PROMISSORY NOTE CANCELLATION AND REISSUANCE AGREEMENT ("Agreement") is made
and entered into as of February 28, 2005 (the "Effective Date"), by and between
Padova International, Inc., a Nevada corporation ("Maker"), and Xxxxxx Xxxxxxx,
an individual residing at ________________, California ("Holder").
RECITALS
A. On the terms and conditions set forth herein, (i) Maker and Holder (the
"Parties") agree to cancel that certain promissory note between Maker and Holder
dated _____,____ bearing interest at two percent (2%) monthly (a copy of which
is attached as Exhibit A) (the "Original Note"); (ii) Maker will issue Holder a
new interest bearing promissory note (the "New Note") (a copy of which is
attached as Exhibit B); and (iii) Holder will convert the accrued but unpaid
interest owed under the Original Note (the "Unpaid Interest") to Maker's common
stock, par value $.001 per share at a price of $.25 per share.
B. This Agreement, together with Exhibits A and B, each of which are attached
hereto and incorporated herein by this reference, and any additional exhibits,
schedules, or attachments as set forth herein, are referred to collectively
herein as the "PCRA".
AGREEMENT
1. CANCELLATION OF ORIGINAL NOTE AND RELEASE. Subject to the terms and
conditions set forth herein, Holder agrees to deliver to Maker at Closing
(defined below) the Original Note marked across its face "CANCELLED" and upon
such delivery thereby shall forever release and discharge Maker of any and all
of its obligations under the Note, including any obligation to pay principal and
interest, except as set forth in this Agreement.
2. ISSUANCE OF NEW NOTE. Subject to the terms and conditions set forth herein,
Maker agrees to deliver to Holder at Closing (defined below) the New Note and
upon such delivery thereby shall be obligated to pay the principal of the New
Note on the terms of the New Note.
3. CONVERSION OF UNPAID INTEREST TO EQUITY. Holder hereby agrees to convert his
accrued but unpaid interest owed under the Original Note to the Maker's common
stock at a conversion price of $.25 per share for every one dollar ($1.00) of
Unpaid Interest owed to the Holder. The Parties agree that the amount of Unpaid
Interest due for purposes of this Agreement is Thirty Nine Thousand Dollars
($39,000.00).
4. PAYMENT IN FULL SATISFACTION AND DISCHARGE OF NOTE. Upon Closing, Maker
agrees to deliver to Holder the following consideration ("Conversion Payment").
One Hundred and Fifty Six Thousand (156,000) shares of Common Stock of Padova
International USA, Inc., par value $.001 per share (the "Shares"), representing
$39,000.00 of Unpaid Interest at a conversion rate of $.25 per share. The Shares
shall bear the following restrictive legend:
ALL SHARES OF CAPITAL STOCK ISSUABLE THEREUNDER, HAVE NOT BEEN REGISTERED
UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED ("THE
SECURITIES ACT"), OR ANY STATE SECURITIES LAWS, AND MAY NOT BE SOLD,
OFFERED FOR SALE, PLEDGED, HYPOTHECATED OR OTHERWISE DISTRIBUTED IN THE
ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT FILED UNDER THE SECURITIES
ACT AND ANY APPLICABLE STATE SECURITIES LAWS OR EXEMPTIONS THEREFROM, SUCH
EXEMPTIONNS, AT THE OPTION OF THE COMPANY, TO BE EVIDENCED BY AN OPINION
OR COUNSEL SATISFACTORY TO THE COMPANY.
5. CLOSING; CLOSING DATE. The closing of the transactions contemplated hereby
shall be effective as of the delivery date of the closing deliveries described
below ("Closing") at the offices of Padova International USA, Inc. at 10:00 a.m.
on February 28, 2005, or at such time and place as the Parties mutually agree
("Closing Date").
a. Holder shall deliver to Maker the Original Note marked across the
face "Cancelled" (incorporated by reference herein as Exhibit A);
and
b. Maker shall deliver to Holder the New Note (attached hereto as
Exhibit B); and
c. Maker shall deliver to Holder a stock issuance letter for the
Shares.
6. WAIVERS. No action taken pursuant to this Agreement, including any
investigation by or on behalf of any party will be deemed to constitute a waiver
by the party taking such action, or compliance with any representation,
warranty, covenant or agreement contained herein. The waiver by any party hereto
of a breach of any provision of this Agreement shall not operate or be construed
as a waiver of any subsequent breach. The waiver by any party hereto at or
before the Closing Date of any condition to its obligations hereunder which is
not fulfilled shall preclude such party from seeking redress from the other
party hereto for breach of any representations, warranty, covenant or agreement
contained in this Agreement.
7. RELEASES.
a. The Holder jointly and severally hereby forever release, discharge,
acquit and forgive from any and all claims, actions, suits, demands, agreements,
and each of them, if more than one, liabilities, judgments, and proceedings both
at law and in equity arising from the beginning of time to the date of these
presents and as more particularly related to or arriving from the issuance and
subsequent cancellation of the Original Note and the non-payment of Unpaid
Interest in cash. In regard to the Original Note, the Parties, and each of them,
agree to and do hereby waive and relinquish all rights and benefits afforded
under the provisions of Section1542 of the Civil Code of the State of
California, which provides as follows:
"A general release does not extend to claims which the creditor does
not know or suspect to exist in his favor at the time of executing
the release, which if known by him must have materially affected his
settlement with the debtor."
b. If the Holder has instituted any legal proceedings against the Maker
settled by this release, the Holder covenants to have them dismissed at the
Holder's cost with express prejudice to bringing further proceedings against the
Maker arising out of the same matter.
c. The Holder also covenants not to make any claim or institute any
proceedings against any person who might claim over against or claim
contribution or indemnity from the Maker in connection with any matter for which
this release is given.
d. The Holder also acknowledges that the Maker does not admit liability to
the Holder in connection with any matter for which this release is given.
e. This release shall be binding upon and inure to the benefit of the
parties, their successors, assigns and personal representatives.
f. This release applies only to the foregoing, and no other debt,
obligation, agreement or liability by and between the parties, which, if
existing, shall survive this release.
8. BINDING EFFECT: BENEFITS. This Agreement shall inure to the benefit of the
Parties hereto and shall be binding upon the parties hereto and their respective
successors and assigns, heirs and legal representatives. Except as otherwise set
forth herein, nothing in this Agreement, express or implied, is intended to
confer on any person other than the parties hereto or their respective
successors and assigns any rights, remedies, obligations, or liabilities under
of by reason of this Agreement.
9. GOVERNING LAW; JURISDICTION; VENUE; REMEDIES; INDEPENDENT LEGAL COUNSEL. This
Agreement shall be interpreted and construed as to both validity and performance
and enforced in accordance with and governed by the laws of the State of
California, without giving effect to the choice of law principles thereof. The
Parties agree that any action hereunder will be held exclusively in the courts
in the State of California. The Parties acknowledge that remedies at law,
including monetary damages, may be inadequate to remedy a breach of certain
material terms herein, including Holder's delivery of the Note, and the Parties
agree that equitable remedies may be necessary to enforce such terms and
covenants, including specific performance. Holder and Maker acknowledge that the
terms of this Agreement have been negotiated by the Parties hereto and each of
them has had a full opportunity to receive independent business, tax and legal
counsel with respect to this Agreement and the transactions contemplated herein.
10. COUNTERPARTS. This Agreement may be executed in counterpart originals, each
of which shall constitute an executed original and together shall constitute a
fully-executed document.
11. NOTICES. All notices, requests, demands, and other communications under this
Agreement shall be in writing and shall be deemed to have been duly given on the
date of service if served personally on the party to whom notice is to be given,
or within 72 hours after mailing, if mailed to the party to whom notice is to be
given, by first-class mail, registered or certified, postage prepaid, and
properly addressed to the party at the address set forth below, or any other
address that a party may designate by written notice to the others.
Maker: Holder:
----- ------
Padova International USA, Inc. ________________
0000 Xxxxxx Xxx Xxx, Xxxxx 000 ________________
Xxx Xxxxxxxx, XX 00000 ________________
Phone: 000-000-0000 Phone:
Fax: 000-000-0000 Fax:
Attn: Xxxxxx Xxxxxxx Attn:
Copy to: Xxxx X. Xxxxxxx
000-000-0000
Exhibits:
Exhibit A: Original Promissory Note
Exhibit B: New Promissory Note
IN WITNESS WHEREOF, the parties have executed and delivered the PCRA for all
purposes as of the Effective Date.
Maker: Holder:
By: By:
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Signature Signature
Name: Name:
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Print or Type Name Print or Type Name
EXHIBIT B
The New Note
PAYMENT IN KIND PROMISSORY NOTE
$100,000.00
February 28, 0000
Xxx Xxxxxxxx, Xxxxxxxxxx
FOR VALUE RECEIVED, the undersigned, Padova International USA, Inc., a Nevada
corporation ("Maker"), hereby promise to pay, to Xxxxxx Xxxxxxx, or order
("Payee"), the principal sum of One Hundred Thousand Dollars ($100,000.00), with
interest on the unpaid principal at the rate of two percent (2%) per annum until
February 28, 2006 ("due date"). Principal and interest shall be payable as
follows: Interest only shall be paid annually; at Payee's option, either in
Maker's common stock or cash until the due date, at which time the remaining
outstanding balance of the principal, any accrued but unpaid interest and all
other sums hereunder shall be payable in full.
If Payee elects for Maker to make an interest payment in its common stock, Maker
shall calculate the amount of interest due on the anniversary of the date of
this Note and convert such amount into the Maker's common stock at a conversion
price of price of $.25 per share for every one dollar ($1.00) of Interest owed
to the Holder. If not so paid and at the option of Holder, or its assigns, all
principal and interest shall become immediately due and payable.
If not so paid and at the option of Holder, or its assigns, all principal and
interest shall become immediately due and payable.
Interest shall be computed on the basis of a 365-day year and actual days
lapsed. Maker shall have the privilege of prepaying the principal under this
Note in whole or in part, without penalty or premium at any time. All payments
hereunder shall be applied first to interest, then to principal.
Maker shall pay upon demand any and all expenses, including reasonable attorney
fees, incurred or paid by Holder of this Note without suit or action in
attempting to collect funds due under this Note. In the event an action is
instituted to enforce or interpret any of the terms of this Note, including but
not limited to any action or participation by Maker in, or in connection with, a
case or proceeding under the Bankruptcy Code or any successor statute, the
prevailing party shall be entitled to recover all expenses reasonably incurred
at, before and after trial and on appeal or review, whether or not taxable as
costs, including, without limitation, attorney fees, witness fees (expert and
otherwise), deposition costs, copying charges and other expenses.
This Note is executed in connection with the transaction set out in that certain
Promissory Note Cancellation and Re-issuance Agreement of even date, by and
among the Maker and Holder and is subject to the terms thereof.
All parties to this Note hereby waive presentment, dishonor, notice of dishonor,
and protest. All parties hereto consent to, and Holder is hereby expressly
authorized to make, without notice, any and all renewals, extensions,
modifications, or waivers of the time for or the terms of payment of any sum or
sums due hereunder, or under any documents or instruments relating to or
securing this Note, or of the performance of any covenants, conditions or
agreements hereof or thereof or the taking or release of collateral securing
this Note. Any such action taken by Holder shall not discharge the liability of
any party to this Note.
This Note has been executed and delivered in the State of California and shall
be governed and construed in accordance with the laws of the State of
California.
Padova International USA, Inc.
A Nevada corporation
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By:
Its:
