4HEALTH, INC.
NON-NEGOTIABLE PROMISSORY NOTE
$_____________ _____________, 1997
FOR VALUE RECEIVED, 4Health, Inc., a Utah corporation ("Maker"),
promises to pay to [Xxxxxxx Xxx] [Xxx Xxxxxx] [Xxx Xxxxxx] an individual
resident at _____________ ("Payee"), in lawful money of the United States of
America, the principal sum of _______________ Dollars ($_____________),
together with interest in arrears on the unpaid principal balance at an
annual rate equal to _____%, in the manner provided below. Interest shall be
calculated on the basis of a year of 365 or 366 days, as applicable, and
charged for the actual number of days elapsed.
1. PAYMENTS
1.1 PRINCIPAL AND INTEREST
The principal amount of this Note shall be due and payable in
twenty-four (24) equal consecutive monthly installments of principal and
interest in the amount of $___________ commencing on the first day of the
calendar month immediately following the Closing (as defined in the Agreement
and Plan of Merger dated the date hereof among Maker, Xxxxx Naturals and Xxxx
Xxxxx), and on the first day of each month thereafter until paid in full.
Interest on the unpaid principal balance of this Note shall be due and
payable monthly, together with each payment of principal.
1.2 MANNER OF PAYMENT
All payments of principal and interest on this Note shall be made by
check at Payee's address as set forth above or at such other place in the
United States of America as Payee shall designate to Maker in writing. If
any payment of principal or interest on this Note is due on a day which is
not a Business Day, such payment shall be due on the next succeeding Business
Day. "Business Day" means any day other than a Saturday, Sunday or legal
holiday in the State of California.
1.3 PREPAYMENT
Maker may at any time prepay all of the outstanding balance due under
this Note. Any such prepayment shall be an amount equal to the aggregate
amount of the remaining unpaid monthly installments due hereunder.
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2. DEFAULTS
2.1 EVENTS OF DEFAULT
The occurrence of any one or more of the following events with respect
to Maker shall constitute an event of default hereunder ("Event of Default"):
(a) If Maker shall fail to pay when due any installment payment on
this Note and such failure continues for fifteen (15) days after Payee
notifies Maker thereof in writing.
(b) If, pursuant to or within the meaning of the United States
Bankruptcy Code or any other federal or state law relating to insolvency or
relief of debtors (a "Bankruptcy Law"), Maker shall (i) commence a voluntary
case or proceeding; (ii) consent to the entry of an order for relief against
it in an involuntary case; (iii) consent to the appointment of a trustee,
receiver, assignee, liquidator or similar official; (iv) make an assignment
for the benefit of its creditors; or (v) admit in writing its inability to
pay its debts as they become due.
(c) If a court of competent jurisdiction enters an order or decree
under any Bankruptcy Law that (i) is for relief against Maker in an
involuntary case, (ii) appoints a trustee, receiver, assignee, liquidator or
similar official for Maker or substantially all of Maker's properties, or
(iii) orders the liquidation of Maker, and in each case the order or decree
is not dismissed within 120 days.
2.2 NOTICE BY MAKER
Maker shall notify Payee in writing within five days after the
occurrence of any Event of Default of which Maker acquires knowledge.
2.3 REMEDIES
Upon the occurrence of an Event of Default hereunder (unless all
Events of Default have been cured or waived by Payee), Payee may, at its
option, (i) by written notice to Maker, declare the entire unpaid balance of
this Note immediately due and payable regardless of any prior forbearance,
and (ii) exercise any and all rights and remedies available to it under
applicable law, including, without limitation, the right to collect from
Maker all sums due under this Note. The parties agree that upon an Event of
Default Maker shall pay to Payee, as liquidated damages, and not as a
penalty, the aggregate amount of the unpaid installments then owed hereunder,
plus all reasonable costs and expenses incurred by or on behalf of Payee in
connection with Xxxxx's exercise of any or all of its rights and remedies
under this Note, including, without limitation, reasonable attorneys' fees.
If final judgment shall have been rendered by a court of competent
jurisdiction with
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respect to any amount due hereunder, then from and after the date of such
judgment, any such overdue amount shall bear interest at a PER ANNUM rate
equal to the lesser of the amount declared by such court to be applicable
hereto or 6% until the date of payment.
3. MISCELLANEOUS
3.1 WAIVER
The rights and remedies of Payee under this Note shall be cumulative
and not alternative. No waiver by Payee of any right or remedy under this
Note shall be effective unless in a writing signed by Xxxxx. Neither the
failure nor any delay in exercising any right, power or privilege under this
Note will operate as a waiver of such right, power or privilege and no single
or partial exercise of any such right, power or privilege by Payee will
preclude any other or further exercise of such right, power or privilege or
the exercise of any other right, power or privilege. To the maximum extent
permitted by applicable law, (a) no claim or right of Payee arising out of
this Note can be discharged by Payee, in whole or in part, by a waiver or
renunciation of the claim or right unless in a writing, signed by Xxxxx; (b)
no waiver that may be given by Payee will be applicable except in the
specific instance for which it is given; and (c) no notice to or demand on
Maker will be deemed to be a waiver of any obligation of Maker or of the
right of Payee to take further action without notice or demand as provided in
this Note. Maker hereby waives presentment, demand, protest and notice of
dishonor and protest.
2.3 NOTICES
All notices and other communications given or made pursuant hereto
shall be in writing and shall be deemed to have been duly given upon receipt,
if delivered personally or by air courier, or mailed by registered or
certified mail (postage prepaid, return receipt requested), to the parties at
the following addresses (or at such other address for a party as shall be
specified by like changes of address) or sent by facsimile transmission to
the telecopier number specified below (to be followed promptly by personal or
air courier delivery or mailing as hereinafter provided):
(a) If to Maker, to:
4Health, Inc.
00000 Xxxx Xxxxxxxxx Xxxx.
Culver City, California 90232
Attn: Xxxx Xxxxx, President
Xxxxxxxxx Number: (000) 000-0000
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with copy to:
Xxxxxxxxx Xxxxxxxx Xxxxx & Xxxxx LLP
000 Xxxx Xxxxxx, Xxxxx 0000
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxx X. Xxxxxxxxxx, Esq.
Facsimile Number: (000) 000-0000
and
Xxx X. Xxxxxx, Esq.
00000 Xxxxxxxx Xxxxxxxxx
Xxxxx 0000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Facsimile Number: (000) 000-0000
(b) If to Payee, to his address as set forth above.
3.3 SEVERABILITY
If any provision in this Note is held invalid or unenforceable by any
court of competent jurisdiction, the other provisions of this Note will
remain in full force and effect. Any provision of this Note held invalid or
unenforceable only in part or degree will remain in full force and effect to
the extent not held invalid or unenforceable.
3.4 GOVERNING LAW
This Note will be governed by the laws of the State of California
without regard to conflicts of laws principles.
3.5 PARTIES IN INTEREST
This Note shall bind Maker and its successors and assigns. This Note
shall not be assigned or transferred by Payee without the express prior
written consent of Maker, except by will or, in default thereof, by operation
of law.
3.6 SECTION HEADINGS, CONSTRUCTION
The headings of Sections in this Note are provided for convenience only
and will not affect its construction or interpretation. All references to
"Section" or "Sections" refer to the corresponding Section or Sections of
this Note unless otherwise specified.
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All words used in this Note will be construed to be of such gender or
number as the circumstances require. Unless otherwise expressly provided,
the words "hereof" and "hereunder" and similar references refer to this Note
in its entirety and not to any specific section or subsection hereof.
IN WITNESS WHEREOF, Maker has executed and delivered this Note as of
the date first stated above.
4HEALTH, INC.
By:
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Xxxx Xxxxx, President
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