EXHIBIT 10.25
THIS NOTE AND THE SECURITIES ISSUABLE UPON CONVERSION HEREOF HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933 (THE "ACT"), AND MAY NOT BE OFFERED
OR SOLD EXCEPT (i) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE
ACT, (ii) TO THE EXTENT APPLICABLE, PURSUANT TO RULE 144 UNDER SUCH ACT (OR ANY
SIMILAR RULE UNDER SUCH ACT RELATING TO THE DISPOSITION OF SECURITIES), OR (iii)
UPON THE DELIVERY BY THE HOLDER TO THE COMPANY OF AN OPINION OF COUNSEL
REASONABLY SATISFACTORY TO COUNSEL FOR THE COMPANY, STATING THAT AN EXEMPTION
FROM REGISTRATION UNDER SUCH ACT IS AVAILABLE.
10% CONVERTIBLE PROMISSORY NOTE
$5,000,000 As of July 24, 1998
FOR VALUE RECEIVED, and intending to be legally bound hereby, CAPITAL
MEDIA GROUP LIMITED, a Nevada corporation (hereinafter referred to as "Maker"),
hereby promises to pay, on or before July 31, 1999 (the "Maturity Date"), in
lawful money of the United States to the order of [Superstar Ventures Limited]
(hereinafter referred to as "Holder") the principal sum of FIVE MILLION DOLLARS
AND NO/100 ($5,000,000), as adjusted pursuant to the terms hereof, including
interest on the outstanding principal balance from the date hereof as calculated
below.
The Maker acknowledges receipt of ONE MILLION THREE HUNDRED THOUSAND
DOLLARS ($1,300,000) received on or about June 1998, as part of the total
principal sum referred to in this Note and the Holder has by execution of this
Note agreed to advance the balance of the principal sum to the Maker in
instalment payments payable over one year in manners as the Holder shall, in its
absolute discretion think fit.
1. GENERAL. Interest shall accrue on the unpaid principal balance of
this Note at the rate of interest of Ten Percent (10%) per annum (the "Interest
Rate"). Interest shall be computed on the basis of a 365 day year and the actual
number of days elapsed with daily rests. The Maker shall have the right to
prepay the Note together with all accrued interest upon not less than five (5)
working days notice to Holder giving it the opportunity during such five (5)
working day period to convert this Note into shares of the Common Stock of
Maker, as described in Section 2 hereof. All prepayments hereon shall be applied
(i) first, to any accrued and unpaid interest, and (ii) second, to the principal
amount outstanding under this Note.
Interest accrued from the date hereof on the outstanding principal
balance of the Note shall be payable upon the earlier of (i) the Maturity Date
or (ii) upon acceleration of all amounts due and owing hereunder in accordance
with the terms hereinafter set forth.
Anything herein to the contrary notwithstanding, (a) after maturity,
whether by acceleration or otherwise, and whether prior to or after a judgement
against the Maker, or (b) in the happening of an event of Default (herein
defined), the rate of interest shall be five percent (5%) per annum plus the
Interest Rate (the "Default Rate"). The Default Rate shall continue in effect
until payment of all amounts due and payable pursuant hereto or until the event
of Default shall have been cured, as applicable.
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Notwithstanding any provision contained herein to the contrary, the
total liability of Maker for payment of interest pursuant hereto, including late
charges, shall not exceed the maximum amount of such interest permitted by law
to be charged, collected or received from Maker, and if any payments by Maker
include interest in excess of such maximum amount, Holder shall apply such
excess to the reduction of the unpaid principal amount due pursuant hereto, or
if none is due, such excess shall be refunded to Maker after deduction of all
costs and charges incurred by the Holder.
All payments of principal and interest shall be made in immediately
available funds at the address of Holder or at such other place as shall be
designated by the Holder.
2. SECURITY AND SUBORDINATION As Security for the performance of
Maker's obligations under this Note, Maker hereby grants to Holder a security
interest, on the same collateral upon which Instar Holdings Inc. ("Instar") has
been granted under that certain Facility Agreement dated October 31st, 1996 by
and between Maker and Instar and so amended between Instar and Superstar
Ventures Limited ("Superstar") in an Amendment Agreement dated on or about
January 12,1998. The security is to rank after the security collateral upon
which Instar and Superstar has been granted by the Maker pursuant to the
Facility Agreement and Amendment Agreement, and shall in addition rank after the
rights and obligations granted by the Maker pursuant to the Line of Credit
Agreements between MMP, SA and Superstar Ventures Limited dated March 23rd, 1998
and March 24th, 1998 respectively. Additionally, as further security for this
loan, Maker hereby pledges to Holder its interest in the shares of Common Stock
of Unimedia, S.A. which it owns. Maker warrants that it has full and unfettered
rights to grant such security and that due notice, if any, has been given to the
appropriate parties.
3. CONVERTIBILITY. The outstanding principal and accrued interest under
this Note shall deem to be converted into fully-paid and non-assessable shares
of Common Stock of the Maker at the rate of one (1) share of Common Stock for
each Ten Cents, ($0.10) of outstanding principal and accrued interest hereunder
(as may be adjusted, the "Note Conversion Rate") upon the Maker's shareholders
having approved (the "Stockholder Approval") an amendment to the Corporation's
Articles of Incorporation increasing the number of authorized shares of Common
Stock of the Corporation by at least that number of shares of Common Stock into
which outstanding shares of Series A Preferred Stock of Maker and outstanding
notes (including this note) are then convertible. Following Stockholder Approval
and until this Note is duly surrendered by the Holder in exchange for Common
Stock, (A) the Note shall be deemed to represent only the equivalent number of
shares of Common Stock and rights appurtenant thereto into which this Note has
been converted, and (B) no principal or accrued interest under this Note that
has been so converted shall continue to be outstanding for any purposes, whether
or not the note has physically been presented for cancellation. The Holder shall
subject to Sub-Clause f. hereof have the absolute discretion to assign all its
rights under the converted Common Stock and the Maker shall procur all
appropriate consents approving such assignment or transfer of Holder's rights.
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a. The Note Conversion Rate shall be subject to adjustment from
time to time in certain instances as hereinafter provided.
Each adjustment of the Note Conversion Rate shall be rounded
to the nearest four decimal places. The Note Conversion Rate
shall be at Maker's cost and subject to adjustment from time
to time as follows:
(i) Only with Holder's written consent and on such terms
as Holder shall in its absolute discretion shall
think fit, if the maker shall at any time pay a
dividend or distribution on Common Stock in Common
Stock, subdivide its outstanding shares of Common
Stock into a larger number of shares, or combine its
outstanding shares of Common Stock into a smaller
number of shares, the Note Conversion Rate in effect
immediately prior thereto shall be adjusted so that
the then outstanding principal and accrued interest
of this Note shall thereafter be convertible into the
number of shares of Common Stock which the holder of
this Note would have been entitled to receive after
the happening of any of the events described above
had such outstanding amounts been converted
immediately prior to the happening of such event. An
adjustment made pursuant to this subparagraph shall
become effective retroactively to the record date in
the case of a dividend and shall become effective on
the effective date in the case of subdivision or
combination.
(ii) Subject to the conditions stated in the preceding
sub-clause and in case of any capital reorganization
or any reclassification of the capital stock of the
Maker or in case of the consolidation or merger of
the Maker with another corporation or in the case of
any sale or conveyance of all or substantially all of
the property of the Maker, the outstanding principal
and accrued interest of this Note shall thereafter be
convertible into the number of shares of stock or
other securities or property (including cash)
receivable upon such capital reorganization,
reclassification of capital stock, consolidation,
merger, sale or conveyance, as the case may be, by
the holder of the number of shares of Common Stock
into which such outstanding amounts immediately prior
to such capital reorganization, reclassification of
capital stock, consolidation, merger, sale of
conveyance; and, in any case, appropriate adjustment
(as determined by the Board of Directors) shall be
made in the application of the provisions herein set
forth with respect to rights and interests thereafter
of the Holder of this Note to the end that the
provisions set forth herein (including the specified
changes in and other adjustments of the Note
Conversion Rate) shall thereafter be applicable, as
nearly as may be reasonably possible, in relation to
any shares of capital stock or other securities or
other property thereafter deliverable upon the
conversion into Common Stock of this Note.
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b. The Maker shall as soon as practical upon Stockholder Approval
and the filing of the appropriate Articles of Amendment
formalizing the increase in the number of authorized shares of
Common Stock, deliver certificates representing the shares
issuable and available out of its authorized and unissued
Common Stock, for the conversion of this Note as provided
herein
c. The Maker shall procur the approval of its Board of Directors
to register Holder or its nominee as the holder of the Common
Stock should such approval be necessary.
d. Once the Note has been converted as provided herein and all
formalities in registering the Holder or its nominee as the
holder of the Common Stock has been completed, the Holder
shall promptly surrender this Note at the office appointed as
aforesaid, which Note shall be duly marked "CANCELLED".
The Maker will, as soon as practicable after conversion of this Note,
issue and deliver at the office appointed as aforesaid, to the Holder,
certificates for the number of full shares of Common Stock to which such person
shall be entitled as aforesaid, together with any cash adjustment for any
fraction of a share as hereinafter stated, if not evenly convertible. Subject to
the following provisions of this paragraph, such conversion shall be deemed to
have been made as of the date on which Articles of Amendment formalising the
increase in the Company's authorized capital stock are filed with the
appropriate governmental authorities in Nevada, and the person or persons
entitled to receive the Common Stock issuable upon conversion of this Note shall
be treated for all purposes as the record holder or holders of such Common Stock
as of such date.
e. No fraction of shares of Common Stock are to be issued upon
conversion, but in lieu thereof the Maker will pay therefor in cash a sum based
on the fair market value of the Common Stock, as determined by a resolution of
the Board of Directors are agreed by Holder.
f. The certificates representing the Common Stock issued upon
conversion of this Note shall bear a legend substantially similar to the
following:
"The securities represented by this certificate have not been
registered under the Securities Act of 1933 ("Act"), and may not be offered or
sold except (i) pursuant to an effective registration statement under the Act,
(ii) to the extent applicable, pursuant to Rule 144 under the Act (or any
similar rule under such Act relating to the disposition of securities), or (iii)
upon the delivery by the holder to the Company of an opinion or counsel,
reasonably satisfactory to counsel to the issuer, stating that an exemption from
registration under such Act is available."
g. The Maker agrees, that from the date of this Note until the date
upon which Shareholders Approval is given, not to issue any convertible options
that could be converted into more than of 150,000,000 shares of Common Stock
inclusive of those issuable pursuant to this Note and the Note due to AB Groupe
for services and subscription, without the written consent of the Holder.
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4. DEFAULT. An Event of Default shall be deemed to occur if one or more
of the following events shall occur prior to conversion (as set forth in section
3 above) of the amounts due under this Note into shares of Common Stock:
a. A default in the due and punctual payment of the amounts owed
hereunder when and as such amounts shall become due and
payable:
b. A default in the due observance or performance of any covenant
or agreement on the part of the Maker to be observed or
performed pursuant to the terms hereof, if such default shall
continue uncured for ten (10) days afters written notice
specifying such default shall have been given to Maker;
c. Maker shall (i) apply for or consent to the appointment of a
receiver, trustee or liquidator for itself or any of its
properties or assets, (ii) be unable or admit in writing its
inability to pay its debts as they mature, (iii) make a
general assignment for the benefit of its creditors, (iv)
commence a voluntary case for relief as a debtor under the
United States Bankruptcy Code or file a petition or an answer
seeking reorganization or an arrangement with creditors or to
take advantage of any applicable law respecting bankruptcy,
reorganization, insolvency, readjustment of debts, dissolution
or liquidation, which case or petition remains undismissed for
sixty (60) days after the entry thereof, (v) file any answer
admitting the material allegations of a petition filed against
it in any proceeding under any such applicable law or (vi)
take any action for the purpose of effecting any of the
foregoing;
d. Any involuntary case under the United States Bankruptcy Code
(or such code of another jurisdiction as may be applicable to
Maker) being commenced against Maker or a petition being filed
against Maker seeking similar relief under any other
applicable law and such case or petition remaining undismissed
for sixty (60) days after the entry thereof.
e. A material change in the management of Maker, Onyx Television
GmbH ("Onyx") or Unimedia, S.A.;
f. A material change in the strategic orientation of Maker or
Onyx including a decision to abandon the application of a
second licence for Onyx;
g. A breach in the obligations of AB Groupe (or its subsidiary,
MMP, S.A.) of their obligations to fund and provide services
to Maker and Onyx; or by Instar or Universal of their
obligations under that certain letter agreement, dated July
17, 1998;
h. The failure of the Maker to hold a special meeting of its
stockholders and to seek Stockholder Approval to the amendment
to its articles of incorporation described in Section 3, on or
before November 30, 1998; or
i. The failure of the Maker in satisfying all the pre-requisite
conditions as set out at the top of page 1 of this Note, on or
before November 30, 1998.
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j. The failure of the Maker to hold a special meeting of its
stockholders to seek Stockholder Approval to the amendment to
its articles of incorporation described in Section 3, on or
before November 30, 1998.
Upon the occurrence of an Event of Default or at any time thereafter
the Holder may declare the entire unpaid principle balance of this Note and
interest accrued thereon which shall be immediately due and payable at that
time. Additionally, to the extent permitted by law and subject to Section 1
hereof, Maker shall also pay Holder a penalty of 20% per annum calculated in the
aforesaid manners of the principal amount of the loan.
5. REPRESENTATIONS. Maker represents and warrants to Holder as follows:
(i) the execution and delivery of this Note and the performance by Maker of its
obligations hereunder have been duly authorized by all necessary corporate
action on part of Maker; and (ii) this Note has been duly executed and delivered
by Maker and constitutes the legal, valid, binding and enforceable obligation of
the Maker, enforceable in accordance with its terms.
6. MISCELLANEOUS. All notices given under this Note shall be by
personal service or by overnight courier service or by first class mail, postage
prepaid, return receipt requested, to the parties at the following addresses:-
If to Maker:
Capital Media Group Limited
X/x 0 xxx xx xxxxxxx Xxxxx
00000 Xxxxxxxxx
Xxxxxx
Attention: Xxxxxx Xxxxxxxxx, President and Chief Executive Officer
If to Holder:
Superstar Ventures Limited
or to such other addresses as may be specified by like notice, and shall be
deemed to have been duly given or made three days after delivered or deposited
in the mails as aforesaid or one day after delivery to an overnight courier, if
next day delivery is so requested and is so available and such delivery is so
effectuated.
Maker hereby waives presentment for payment, demand, notice of
non-payment, notice of protest and protest of this Note, and all other notices
in connection with the delivery, acceptance, performance, default, dishonor or
enforcement of the payment of this Note.
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Any failure by the Holder to insist upon the strict performance by the
Maker of any of terms and provisions hereof shall not be deemed to be a waiver
of any of the terms and provisions hereof, and the Holder, notwithstanding any
such failure, shall have the right thereafter to insist upon the strict
performance by the Maker of any and all terms and provisions hereof to be
performed by the Maker.
This instrument shall be construed according to and governed by the
laws of the England without regard to any laws as to conflict of laws and the
parties hereto submit to the exclusive jurisdiction of the English Court. If any
of the provisions or terms of this note, or any instrument securing payment
hereof, shall be held to be invalid or unenforceable for any reason, such
invalidity or unenforceability shall not effect any other of the terms hereof or
of such other instrument, and this Note and such other instrument shall be
construed as if such unenforceable term had never been contained herein or
therein.
IN WITNESS WHEREOF, Maker has caused this Note to be executed as a Deed as of
the date first written above.
CAPITAL MEDIA GROUP LIMITED
By: /s/ XXXXXX XXXXXXXXX
------------------------------------
Xxxxxx Xxxxxxxxx, President, Chairman and CEO
By: /s/ XXXXXX XXXXXXXXX
------------------------------------
Xxxxxx Xxxxxxxxx, Director
Terms approved and agreed to
This 24th day of July 1998.
Superstar Ventures Limited
By: /s/ XXXXX XX
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