EXECUTION COPY
Exhibit
4.2
EXECUTION
COPY
THIS
NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “
ACT ”), OR APPLICABLE STATE SECURITIES LAWS, AND MAY NOT BE SOLD, TRANSFERRED,
OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR RECEIPT BY THE
COMPANY OF A WRITTEN OPINION OF COUNSEL IN FORM, SUBSTANCE AND SCOPE REASONABLY
SATISFACTORY TO THE COMPANY THAT THIS NOTE MAY BE SOLD,
TRANSFERRED, OR OTHERWISE DISPOSED OF, UNDER AN EXEMPTION FROM
REGISTRATION UNDER THE ACT AND SUCH STATE SECURITIES LAWS.
10%
Bridge Note
Date:
November 12, 2010
$500,000.00
For value
received, JUMA TECHNOLOGY CORP., a Delaware corporation (the “Company”), and NECTAR SERVICES
CORP., a Delaware corporation (“ Nectar ”,
and together with the Company, the “ Makers ”), hereby
promise to pay to the order of Vision Opportunity Master Fund, Ltd. (together
with its successors, representatives, and permitted assigns, the “ Holder ”),
in accordance with the terms hereinafter provided, the principal amount of five
hundred thousand ($500,000.00) dollars, together with interest
thereon. The Makers are issuing this 10% Bridge Note (the “ Note ”)
to the Holder pursuant to the Purchase Agreement (as defined in Section
1.1 hereof).
All
payments under or pursuant to this Note shall be made in United States Dollars
in immediately available funds to the Holder at the address of the Holder as set
forth in the Purchase Agreement or at such other place as the Holder may
designate from time to time in writing to the Makers or by wire transfer of
funds to the Holder’s account, instructions for which are attached hereto
as Exhibit
A . The outstanding principal balance and all accrued
Interest (as defined herein) of this Note shall be due and payable on November
29, 2010 (the “ Maturity
Date ”) or at such earlier time as provided
herein.
ARTICLE
I
Section
1.1 Purchase Agreement. This Note has
been executed and delivered pursuant to the Note and Warrant Purchase Agreement
dated as of November 12, 2010 (the “ Purchase
Agreement ”) by and among the Makers and the purchasers listed
therein. Capitalized terms used and not otherwise defined herein
shall have the meanings set forth for such terms in the Purchase
Agreement.
Section
1.2 Interest. Beginning on the issuance
date of this Note (the “Issuance Date”), the
outstanding principal balance of this Note shall bear interest (“ Interest ”),
at a rate per annum equal to ten percent (10%), so long as any principal amount
evidenced by this Note remains outstanding. Interest shall be payable in cash,
on the Maturity Date. Interest shall be computed on the basis of a
360-day year of twelve (12) 30-day months and shall accrue commencing on the
Issuance Date. Furthermore, upon the occurrence of an Event of
Default (as defined in
Section 2.1 hereof), then to the extent permitted
by law, the Makers will pay Interest in cash to the Holder, payable on demand,
on the outstanding principal balance of this Note from the date of the Event of
Default through the date of payment at a new rate of the lesser of twelve
percent (12%) and the maximum applicable legal rate per annum (the “ Default
Rate ”).
Section
1.3 Ranking and Covenants.
(a) Other
than such indebtedness existing as of the Issuance Date, the Makers will not,
and will not permit any Subsidiary to, directly or indirectly, enter into,
create, incur, assume or suffer to exist any indebtedness of any kind, that is
senior in any respect to the Makers’ obligations under the Notes, and the Makers
will not, and will not permit any Subsidiary to, directly or indirectly, incur
any Lien on or with respect to any of its property or assets now owned or
hereafter acquired or any interest therein or any income or profits therefrom,
except for indebtedness with respect to capital leases incurred in the ordinary
course of business.
(b) So
long as any Notes are outstanding, none of the Makers nor any Subsidiary shall,
directly or indirectly, (i) redeem, purchase or otherwise acquire any of the
Company’s capital stock or set aside any monies for such a redemption, purchase
or other acquisition or (ii) issue any Options or Convertible Securities with an
exercise price or a conversion price or a number of underlying shares that
floats or resets or otherwise varies or is subject to adjustment based (directly
or indirectly) on market prices of the Common Stock.
Section
1.4 Payment on Non-Business
Days. Whenever any payment to be made shall be due on a Saturday,
Sunday or a public holiday under the laws of the State of New York, such payment
may be due on the next succeeding business day and such next succeeding day
shall be included in the calculation of the amount of accrued Interest payable
on such date.
Section
1.5 Transfer. This Note may be
transferred or sold, subject to the provisions of Section 4.8 of this Note, or
pledged, hypothecated or otherwise granted as security by the
Holder.
Section
1.6 Replacement. Upon receipt of a duly
executed and notarized written statement from the Holder with respect to the
loss, theft or destruction of this Note (or any replacement hereof) and a
standard indemnity reasonably satisfactory to the Makers, or, in the case of a
mutilation of this Note, upon surrender and cancellation of such Note, the
Makers shall issue a new Note, of like tenor and amount, in lieu of such lost,
stolen, destroyed or mutilated Note.
2
ARTICLE
II
EVENTS OF
DEFAULT; REMEDIES
Section
2.1 Events of Default. The occurrence
of any of the following events shall be an “Event of Default ”
under this Note:
(a) the
Makers shall fail to make any principal or Interest payments due under this Note
on the date such payments are due and such default is not fully cured within ten
(10) business days after the occurrence thereof; or
(b) [Intentionally
omitted]; or
(c)
the suspension from listing, without subsequent listing on any one
of, or the failure of the Common Stock to be listed or quoted on at least one of
the OTC Bulletin Board, the American Stock Exchange, the NASDAQ Global Market,
the NASDAQ Capital Market or The New York Stock Exchange, Inc. for a period of
ten (10) consecutive Trading Days; or
(d) [Intentionally
omitted]; or
(e) either
(i) [Intentionally omitted], or (ii) the Makers shall fail to make the payment
of any fees and/or liquidated damages under this Note or the Purchase Agreement,
which failure is not remedied within ten (10) business days after the occurrence
thereof; or
(f) [Intentionally
omitted]; or
(g) default
shall be made in the performance or observance of (i) any covenant, condition or
agreement contained in this Note and such default is not fully cured within ten
(10) business days after the Holder delivers written notice to the Makers of the
occurrence thereof or (ii) any covenant, condition or agreement contained in the
Purchase Agreement, the Other Notes, the Warrants or any other Transaction
Document which is not covered by any other provisions of this Section 2.1 and
such default is not fully cured within ten (10) business days after the Holder
delivers written notice to the Makers of the occurrence
thereof; or
(h) any
material representation or warranty made by either of the Makers herein or in
the Purchase Agreement, the Other Notes, the Warrants or any other Transaction
Document shall prove to have been false or incorrect or breached in a material
respect on the date as of which made and the Holder delivers written notice to
the Makers of the occurrence thereof; or
(i) either
of the Makers shall after the Issuance Date (A) default in any payment of any
amount or amounts of principal of or interest on any indebtedness (other than
the indebtedness hereunder) the aggregate principal amount of which indebtedness
is in excess of $100,000 or
(B) default in the observance or performance of any other agreement or condition
relating to any indebtedness or contained in any instrument or agreement
evidencing, securing or relating thereto, or any other event shall occur or
condition exist, the effect of which default or other event or condition is to
cause, or to permit the holder or holders or beneficiary or beneficiaries of
such indebtedness to cause with the giving of notice if required, such
indebtedness to become due prior to its stated maturity; or
3
(j) either
of the Makers shall (i) apply for or consent to the appointment of, or the
taking of possession by, a receiver, custodian, trustee or liquidator of itself
or of all or a substantial part of its property or assets, (ii) make a general
assignment for the benefit of its creditors, (iii) commence a voluntary case
under the United States Bankruptcy Code (as now or hereafter in effect) or under
the comparable laws of any jurisdiction (foreign or domestic), (iv) file a
petition seeking to take advantage of any bankruptcy, insolvency, moratorium,
reorganization or other similar law affecting the enforcement of creditors’
rights generally, (v) acquiesce in writing to any petition filed against it in
an involuntary case under United States Bankruptcy Code (as now or hereafter in
effect) or under the comparable laws of any jurisdiction (foreign or domestic),
or (vi) issue a notice of bankruptcy or winding down of its operations or issue
a press release regarding same; or
(k) a
proceeding or case shall be commenced in respect of either of the Makers,
without its application or consent, in any court of competent jurisdiction,
seeking (i) the liquidation, reorganization, moratorium, dissolution, winding
up, or composition or readjustment of its debts, (ii) the appointment of a
trustee, receiver, custodian, liquidator or the like of it or of all or any
substantial part of its assets in connection with its liquidation or dissolution
or (iii) similar relief in respect of it under any law providing for the relief
of debtors, and such proceeding or case described in clause (i), (ii) or (iii)
shall continue undismissed, or unstayed and in effect, for a period of thirty
(30) days or any order for relief shall be entered in an involuntary case under
United States Bankruptcy Code (as now or hereafter in effect) or under the
comparable laws of any jurisdiction (foreign or domestic) against either of the
Makers or action under the laws of any jurisdiction (foreign or domestic)
analogous to any of the foregoing shall be taken with respect to either of the
Makers and shall continue undismissed, or unstayed and in effect for a period of
thirty (30) days; or
(l) the
failure of the Company to instruct its transfer agent to remove any legends from
shares of Common Stock eligible to be sold under Rule 144 of the Securities Act
and issue such unlegended certificates to the Holder within five (5) business
days of the Holder’s request so long as the Holder has provided reasonable
assurances to the Company, and based thereon the Company has determined, that
such shares of Common Stock can be sold pursuant to Rule 144; or
(m) the
failure of either of the Makers to pay any other amounts due to the Holder
herein or any other Transaction Document within ten (10) business days of the
date such payments are due and such default is not fully cured within ten (10)
business days after the Holder delivers written notice to the Maker of the
occurrence thereof; or
(n) the
occurrence of an event of default under any other Transaction
Document.
4
Section
2.2 Remedies Upon An Event of
Default. If an Event of Default shall have occurred and shall be
continuing, the Holder of this Note may at any time at its option, (a) declare
the entire unpaid principal balance of this Note, together with all Interest
accrued hereon, due and payable, and thereupon, the same shall be accelerated
and so due and payable, without presentment, demand, protest, or notice, all of
which are hereby expressly unconditionally and irrevocably waived by the
Makers; provided,
however , that upon the occurrence of an Event of Default
described in
Sections 2.1(j) or (k) ,
the outstanding principal balance and accrued Interest hereunder shall be
automatically due and payable, (b) [Intentionally omitted], or (c) exercise or
otherwise enforce any one or more of the Holder’s rights, powers, privileges,
remedies and interests under this Note, the Purchase Agreement or applicable
law. No course of delay on the part of the Holder shall operate as a
waiver thereof or otherwise prejudice the right of the Holder. No
remedy conferred hereby shall be exclusive of any other remedy referred to
herein or now or hereafter available at law, in equity, by statute or
otherwise.
ARTICLE
III
CONVERSION;
ANTIDILUTION; PREPAYMENT; COVENANTS
Section
3.1 [Intentionally omitted].
Section
3.2 [Intentionally omitted].
Section
3.3 [Intentionally omitted].
Section
3.4 [Intentionally omitted].
Section
3.5 [Intentionally omitted].
Section
3.6 [Intentionally omitted].
Section
3.7 Prepayment.
(a) Prepayment
Upon an Event of Default. Notwithstanding anything to the contrary
contained herein, upon the occurrence of an Event of Default described in Sections
2.1(b)-(i) ,
(l) , (m)
and
(n) hereof, the Holder shall have the right, at
the Holder’s option, to require the Makers to prepay in cash all or a portion of
this Note at a price equal to one hundred percent (100%) of the aggregate
principal amount of this Note plus all accrued and unpaid Interest applicable at
the time of such request. Nothing in this Section 3.7(a)
shall limit the Holder’s rights under Section 2.2
hereof.
(b) Prepayment
Option Upon Major Transaction. In addition to all other rights of the
Holder contained herein, simultaneous with the occurrence of a Major Transaction
(as defined below), the Holder shall have the right, at the Holder’s option, to
require the Makers to prepay in cash all or a portion of this Note at a price
equal to one hundred twenty percent (120%) of the aggregate principal amount of
this Note plus all accrued and unpaid Interest (the “ Major Transaction
Prepayment Price ”).
5
(c) Prepayment
Option Upon Triggering Event. In addition to all other rights of the
Holder contained herein, after a Triggering Event (as defined below), the Holder
shall have the right, at the Holder’s option, to require the Makers to prepay
all or a portion of this Note in cash at a price equal to one hundred twenty
percent (120%) of the aggregate principal amount of this Note plus all accrued
and unpaid Interest (the “ Triggering Event
Prepayment Price ,” and, collectively with the Major
Transaction Prepayment Price, the “ Prepayment
Price ”).
(d) Optional
Prepayment by Company. In addition to all other rights of the Company
contained herein, at any time after three (3) months from the Issuance Date, the
Company shall have the right, solely at the Company’s option, to prepay in cash
(the “ Optional
Prepayment ”) at a price equal to one hundred ten percent
(110%) of the aggregate principal amount of this Note plus all accrued and
unpaid Interest, if any, thereon to the date of such Optional Prepayment (the
“ Optional Company
Prepayment Price ”) by providing written notice of at least
thirty (30) calendar days prior to the consummation of the Optional Prepayment
via facsimile and overnight courier (“ Notice of Optional
Prepayment ”) to the Holder of this Note and the Other
Holders. The Company may pay, upon an Optional Prepayment, all accrued and
unpaid Interest, if any, by issuing the Holders additional Notes with a
principal amount equal to the Interest then due and payable (a “ PIK
Note ”). The Company shall deliver the applicable Optional
Company Prepayment Price to the Holder, within five (5) business days after the
date specified in the Notice of Optional Prepayment for the Optional
Prepayment. If the Company shall fail to prepay the Notes (other than
pursuant to a dispute as to the arithmetic calculation of the Optional Company
Prepayment Price), in addition to any remedy such Holder of the Notes may have
under this Note and the Purchase Agreement, the Optional Company Prepayment
Price payable in respect of such Notes not prepaid shall bear interest at the
Default Rate until paid in full.
(e) “Major
Transaction.” A “Major Transaction” shall be
deemed to have occurred at such time as any of the following events have
occurred:
(i) the
consolidation, merger or other business combination of the Company with or into
another Person (as defined in
Section 4.13 hereof) (other than (A) pursuant to
a migratory merger effected solely for the purpose of changing the jurisdiction
of incorporation of the Company or (B) a consolidation, merger or other business
combination in which holders of the Company’s voting power immediately prior to
the transaction continue after the transaction to hold, directly or indirectly,
the voting power of the surviving entity or entities necessary to elect a
majority of the members of the board of directors (or their equivalent if other
than a corporation) of such entity or entities); or
(ii) the
sale or transfer of more than fifty percent (50%) of the Company’s assets (based
on the fair market value as determined in good faith by the Board) other than
inventory in the ordinary course of business in one or a related series of
transactions; or
(iii) closing
of a purchase, tender or exchange offer made to the holders of more than fifty
percent (50%) of the outstanding shares of Common Stock in which more than fifty
percent (50%) of the outstanding shares of Common Stock were tendered and
accepted; or
6
(iv) a
change in more than fifty percent (50%) of the current members of the Company’s
Board of Directors as of the Issuance Date, except for such changes approved by
the Holder of this Note.
(f) “Triggering
Event.” A “Triggering Event” shall be
deemed to have occurred at such time as any of the following
events:
(i) [Intentionally
omitted];
(ii) the
suspension from listing, without subsequent listing on any one of, or the
failure of the Common Stock to be listed on at least one of the OTC Bulletin
Board, the American Stock Exchange, the NASDAQ Global Market, the NASDAQ Capital
Market or The New York Stock Exchange, Inc., for a period of ten (10)
consecutive Trading Days;
(iii) [Intentionally
omitted]; or
(iv)
[Intentionally omitted]; or
(v)
the Company deregisters its shares of Common Stock and as a result such shares
of Common Stock are no longer publicly traded; or
(vi) the
Company consummates a “going private” transaction and as a result the Common
Stock is no longer registered under Sections 12(b) or 12(g) of the Exchange Act;
or
(vii) either
of the Makers breach any representation, warranty, covenant or other term or
condition of the Purchase Agreement, this Note or any other agreement, document,
certificate or other instrument delivered in connection with the transactions
contemplated thereby or hereby, except to the extent that such breach would not
have a Material Adverse Effect (as defined in the Purchase Agreement) and
except, in the case of a breach of a covenant which is curable, only if such
breach continues for a period of a least twenty (20) business days.
(g) [Intentionally
omitted].
(h) Mechanics
of Prepayment at Option of Holder Upon Major Transaction. No sooner
than fifteen (15) days nor later than ten (10) days prior to the consummation of
a Major Transaction, but in no event prior to the public announcement
of such Major Transaction, the Makers shall deliver written notice thereof via
facsimile and overnight courier (“ Notice of Major
Transaction ”) to the Holder of this Note and the Other
Holders. At any time after receipt of a Notice of Major Transaction
(or, in the event a Notice of Major Transaction is not delivered at least ten
(10) days prior to a Major Transaction, at any time during the ten (10) day
period prior to a Major Transaction), the Holder of this Note and the Other
Holders of the Other Notes then outstanding may require the Makers to prepay,
effective immediately prior to the consummation of such Major Transaction, all
or any portion of this Note then outstanding by delivering written notice
thereof via facsimile and overnight courier (“ Notice of Prepayment at
Option of Holder Upon Major Transaction ”) to the Makers,
which Notice of Prepayment at Option of Holder Upon Major Transaction shall
indicate (i) the principal amount of this Note that the Holder is electing to
have prepaid and (ii) the applicable Major Transaction Prepayment Price, as
calculated pursuant to
Section 3.7(b) above.
7
(i) Mechanics
of Prepayment at Option of Holder Upon Triggering Event. Within three
(3) business days after the occurrence of a Triggering Event, the Makers shall
deliver written notice thereof via facsimile and overnight courier (“ Notice of Triggering
Event ”) to the Holder and the Other Holders. At
any time after the earlier of the Holder’s receipt of a Notice of Triggering
Event and the Holder becoming aware of a Triggering Event, the
Holder of this Note and the Other Holders of the Other Notes then
outstanding may require the Makers to prepay all or any portion of this Note
then outstanding by delivering written notice thereof via facsimile and
overnight courier (“ Notice of Prepayment at
Option of Holder Upon Triggering Event ”) to the Makers, which
Notice of Prepayment at Option of Holder Upon Triggering Event shall indicate
(i) the amount of the Note that the Holder is electing to have prepaid and (ii)
the applicable Triggering Event Prepayment Price, as calculated pursuant to Section 3.7(c)
above. The Holder shall only be permitted to require the
Makers to prepay this Note pursuant to Section 3.7
hereof for the greater of a period of ten (10) days after receipt by
the Holder of a Notice of Triggering Event or for so long as such Triggering
Event is continuing.
(j) Payment
of Prepayment Price. Upon the Makers’ receipt of a Notice(s) of
Prepayment at Option of Holder Upon Triggering Event or a Notice(s) of
Prepayment at Option of Holder Upon Major Transaction from the Holder or the
Other Holders, the Makers shall notify the Holder or such Other Holders, as the
case may be, by facsimile of the Makers’ receipt of such Notice(s) of Prepayment
at Option of Holder Upon Triggering Event or Notice(s) of Prepayment at Option
of Holder Upon Major Transaction within two (2) business days of the Makers’
receipt of the same and the Holder and each Other Holder which has sent such a
notice shall promptly thereafter submit to the Makers this Note (or certificates
representing a portion of this Note if the Holder elects not to have all of the
outstanding principal and accrued Interest hereunder prepaid) or the
Other Notes (or certificates representing a portion of the Other Notes if the
Other Holders elect not to have all of the outstanding principal and accrued
Interest thereunder prepaid) which the Holder or Other Holders, as the case may
be, have elected to have prepaid. The Makers shall deliver the
applicable Triggering Event Prepayment Price to the Holder, within five (5)
business days after the Makers’ receipt of this Note or the certificates related
thereto, as the case may be, and, in the case of a prepayment pursuant to Section
3.7(h) , the Makers shall deliver the applicable Major
Transaction Prepayment Price immediately prior to the consummation of the Major
Transaction;
provided that the Holder’s original Note or the
Other Holders’ original Other Notes, or the certificates related thereto, shall
have been so delivered to the Makers; provided further
that if the Makers are unable to prepay all of the Notes to be
prepaid, the Makers shall prepay an amount to the Holder and each Other Holder
of this Note and the Other Notes being prepaid equal to such holder’s pro-rata amount
of all Notes being prepaid. If the Makers shall fail to prepay all of
the Notes submitted for prepayment (other than pursuant to a dispute as to the
arithmetic calculation of the Prepayment Price), in addition to any remedy such
holder of the Notes may have under this Note and the Purchase Agreement, the
applicable Prepayment Price payable in respect of such Notes not prepaid shall
bear interest at the Default Rate until paid in full. Until the
Makers pay such unpaid applicable Prepayment Price in full to a holder of the
Notes submitted for prepayment, such holder shall have the option (the “ Void Optional Prepayment
Option ”) to, in lieu of prepayment, require the Makers to
promptly return to such holder(s) all of the Notes that were submitted for
prepayment by such holder(s) under this Section 3.7
and for which the applicable Prepayment Price has not been paid, by
sending written notice thereof to the Makers via facsimile (the “ Void Optional Prepayment
Notice ”). Upon the Makers’ receipt of such Void Optional
Prepayment Notice(s) and prior to payment of the full applicable Prepayment
Price to such holder, (i) the Notice(s) of Prepayment at Option of Holder Upon
Triggering Event or the Notice(s) of Prepayment at Option of Holder Upon Major
Transaction, as the case may be, shall be null and void ab initio
with respect to those Notes submitted for prepayment and for which
the applicable Prepayment Price has not been paid, (ii) the Makers shall
immediately return any such Notes submitted to the Makers by each holder for
prepayment under this
Section 3.7(j) and for which the applicable
Prepayment Price has not been paid and (iii) [Intentionally
omitted].
8
Section
3.8 [Intentionally
omitted].
Section
3.9 [Intentionally
omitted].
ARTICLE
IV
MISCELLANEOUS
Section
4.1 Notices. Any notice,
demand, request, waiver or other communication required or permitted to be given
hereunder shall be in writing and shall be effective (a) upon hand delivery or
facsimile at the address or number designated in the Purchase Agreement (if
delivered on a business day during normal business hours where such notice is to
be received), or the first business day following such delivery (if delivered
other than on a business day during normal business hours where such notice is
to be received) or (b) on the second business day following the date of mailing
by express courier service, fully prepaid, addressed to such address, or upon
actual receipt of such mailing, whichever shall first occur. The
Makers will give written notice to the Holder at least ten (10) days prior to
the date on which the Company takes a record (x) with respect to any dividend or
distribution upon the Common Stock, (y) with respect to any pro rata
subscription offer to holders of Common Stock or (z) for determining rights to
vote with respect to any Organic Change, dissolution, liquidation or winding-up
but in no event shall such notice be provided to the Holder prior to such
information being made known to the public. The Makers will also give
written notice to the Holder at least ten (10) days prior to the date on which
any Organic Change, dissolution, liquidation or winding-up will take place but
in no event shall such notice be provided to the Holder prior to such
information being made known to the public. The Makers shall promptly notify the
Holder of any notices sent or received, or any actions taken with respect to the
Other Notes.
Section
4.2 Governing Law; Consent to
Jurisdiction. The parties acknowledge and agree that any claim, controversy,
dispute or action relating in any way to this agreement or the subject matter of
this agreement shall be governed solely by the laws of the State of New York,
without regard to any conflict of laws doctrines. The parties
irrevocably consent to being served with legal process issued from the state and
federal courts located in New York and irrevocably consent to the exclusive
personal jurisdiction of the federal and state courts situated in the State of
New York. The parties irrevocably waive any objections to the
personal jurisdiction of these courts. Said courts shall have sole
and exclusive jurisdiction over any and all claims, controversies, disputes and
actions which in any way relate to this agreement or the subject matter of this
agreement. The parties also irrevocably waive any objections that
these courts constitute an oppressive, unfair, or inconvenient forum and agree
not to seek to change venue on these grounds or any other grounds. Nothing in
this Section
4.2 shall affect or limit any right to serve process in any
other manner permitted by law.
9
Section
4.3 Headings. Article
and section headings in this Note are included herein for purposes of
convenience of reference only and shall not constitute a part of this Note for
any other purpose.
Section
4.4 Remedies, Characterizations,
Other Obligations, Breaches and Injunctive Relief. The remedies
provided in this Note shall be cumulative and in addition to all other remedies
available under this Note, at law or in equity (including, without limitation, a
decree of specific performance and/or other injunctive relief), no remedy
contained herein shall be deemed a waiver of compliance with the provisions
giving rise to such remedy and nothing herein shall limit a Holder’s right to
pursue actual damages for any failure by the Makers to comply with the terms of
this Note. Amounts set forth or provided for herein with respect to
payments, [Intentionally omitted] and the like (and the computation thereof)
shall be the amounts to be received by the Holder hereof and shall not, except
as expressly provided herein, be subject to any other obligation of the Makers
(or the performance thereof). Each of the Makers acknowledges that a breach by
it of its obligations hereunder will cause irreparable and material harm to the
Holder and that the remedy at law for any such breach may be inadequate.
Therefore each Maker agrees that, in the event of any such breach or threatened
breach, the Holder shall be entitled, in addition to all other available rights
and remedies, at law or in equity, to seek and obtain such equitable relief,
including but not limited to an injunction restraining any such breach or
threatened breach, without the necessity of showing economic loss and without
any bond or other security being required.
Section
4.5 Enforcement
Expenses. The Makers agree to pay all costs and expenses of the
Holder incurred as a result of enforcement of this Note, including, without
limitation, reasonable attorneys’ fees and expenses.
Section
4.6 Binding Effect. The
obligations of the Makers and the Holder set forth herein shall be binding upon
the successors and assigns of each such party, whether or not such successors or
assigns are permitted by the terms hereof.
Section
4.7 Amendments. This
Note may not be modified or amended in any manner except in writing executed by
the Makers and the Holder.
Section
4.8 Compliance with Securities
Laws. The Holder of this Note acknowledges that this Note is being
acquired solely for the Holder’s own account and not as a nominee for any other
party, and for investment, and that the Holder shall not offer, sell or
otherwise dispose of this Note. This Note and any Note issued in
substitution or replacement therefor shall be stamped or imprinted with a legend
in substantially the following form:
10
“THIS
NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “
ACT ”), OR APPLICABLE STATE SECURITIES LAWS, AND MAY NOT BE SOLD, TRANSFERRED,
OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR RECEIPT BY THE
COMPANY OF A WRITTEN OPINION OF COUNSEL IN FORM, SUBSTANCE AND SCOPE REASONABLY
SATISFACTORY TO THE COMPANY THAT THIS NOTE MAY BE SOLD,
TRANSFERRED, OR OTHERWISE DISPOSED OF, UNDER AN EXEMPTION FROM
REGISTRATION UNDER THE ACT AND SUCH STATE SECURITIES LAWS.”
Section
4.9 [Intentionally
omitted].
Section
4.10 Parties in Interest. This
Note shall be binding upon, inure to the benefit of and be enforceable by the
Makers, the Holder and their respective successors and permitted
assigns.
Section
4.11 Failure or Indulgence Not
Waiver. No failure or delay on the part of the Holder in the exercise
of any power, right or privilege hereunder shall operate as a waiver thereof,
nor shall any single or partial exercise of any such power, right or privilege
preclude other or further exercise thereof or of any other right, power or
privilege, nor shall any waiver by the Holder of any such right or rights on any
one occasion be deemed a waiver of the same right or rights on any future
occasion.
Section
4.12 Makers’ Waivers.
(a) Except
as otherwise specifically provided herein, the Makers and all others that may
become liable for all or any part of the obligations evidenced by this Note,
hereby waive presentment, demand, notice of nonpayment, protest and all other
demands’ and notices in connection with the delivery, acceptance, performance
and enforcement of this Note, and do hereby consent to any number of renewals of
extensions of the time or payment hereof and agree that any such renewals or
extensions may be made without notice to any such persons and without affecting
their liability herein and do further consent to the release of any person
liable hereon, all without affecting the liability of the other persons, firms
or Makers liable for the payment of this Note, AND DO HEREBY WAIVE TRIAL BY
JURY.
(b) THE
MAKERS ACKNOWLEDGE THAT THE TRANSACTION OF WHICH THIS NOTE IS A PART IS A
COMMERCIAL TRANSACTION, AND TO THE EXTENT ALLOWED BY APPLICABLE LAW, HEREBY
WAIVES ITS RIGHT TO NOTICE AND HEARING WITH RESPECT TO ANY PREJUDGMENT REMEDY
WHICH THE HOLDER OR ITS SUCCESSORS OR ASSIGNS MAY DESIRE TO USE.
Section
4.13 Definitions. For the purposes
hereof, the following terms shall have the following meanings:
“Convertible Securities” means
any convertible securities, warrants, options or other rights to subscribe for
or to purchase or exchange for, shares of Common Stock or Common Stock
Equivalents.
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“Options” shall mean any
rights, warrants or options to subscribe for or purchase Common Stock or
Convertible Securities of the Company.
“Person” means an individual or
a corporation, partnership, trust, incorporated or unincorporated association,
joint venture, limited liability company, joint stock company, government (or an
agency or political subdivision thereof) or other entity of any
kind.
“Trading Day” means (a) a day
on which the Common Stock is traded on the OTC Bulletin Board, or (b) if the
Common Stock is not traded on the OTC Bulletin Board, a day on which the Common
Stock is quoted in the over-the-counter market as reported by the National
Quotation Bureau Incorporated (or any similar organization or agency succeeding
its functions of reporting prices); provided,
however , that in the event that the Common Stock is not
listed or quoted as set forth in (a) or (b) hereof, then Trading Day shall mean
any day except Saturday, Sunday and any day which shall be a legal holiday or a
day on which banking institutions in the State of New York are authorized or
required by law or other government action to close.
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blank]
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IN
WITNESS WHEREOF, the Makers have caused this Note to be duly executed as of the
Issuance Date set out above.
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By:
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Name:
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Title:
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NECTAR
SERVICES CORP.
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By:
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Name:
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Title:
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EXHIBIT
A
WIRE
INSTRUCTIONS
Payee:
____________________________________________________________________
Bank: _____________________________________________________________________
Address:
________________________________________________________________
__________________________________________________________________
Bank No.:
________________________________________________________________
Account
No.: _____________________________________________________________
Account
Name:
_____________________________________________________________
14
