EXHIBIT 10.29
PROMISSORY NOTE
AND PLEDGE AGREEMENT
$500,000 Date: July 24, 0000
Xxxxxx, Xxxxxxxxxx
FOR VALUE RECEIVED, the undersigned promises to pay to BIZ Interactive
Zone, Inc., a Delaware corporation (the "Company"), or order, at its principal
office (now located in Irvine, California), or such other place as the Company
shall designate, the principal sum of Five Hundred Thousand Dollars ($500,000)
on July 24, 2004 (the "Maturity Date"). Unpaid principal shall bear interest
from the date hereof at a rate of five percent (5%) per annum, compounded
annually. Accrued but unpaid interest shall be payable on each anniversary of
the date hereof and on the Maturity Date. The entire outstanding balance of
principal and accrued but unpaid interest shall be due and payable on the
Maturity Date.
Each payment shall be credited first to interest then due and the
remainder to principal. Should interest not be paid when due hereunder, it shall
be added to the principal and thereafter bear like interest as the principal,
provided such unpaid interest so compounded shall not exceed an amount equal to
simple interest on the unpaid principal at the maximum rate permitted by law.
The Company may at its option accelerate, in whole or in part, the
maturity of the outstanding principal balance due on this Note and any accrued
interest thereon upon the occurrence of any of the following events:
1. The resignation of the undersigned as a director of the
Company (or any present or future parent and/or subsidiary
corporations of the Company) for any reason, or no reason,
with or without cause.
2. A default in the payment of any installment of principal
and/or interest when due.
3. A sale of the Pledged Stock (as defined below).
4. Such acceleration is reasonably necessary for the Company to
comply with any regulations promulgated by the Board of
Governors of the Federal Reserve System affecting the
extension of credit in connection with the Company's
securities.
The undersigned waives demand, presentment, notice of protest, notice
of demand, dishonor, diligence in collection and notices of intention to
accelerate maturity. Any such acceleration may be automatically effectuated by
the Company by making an entry to such effect in its records, in which event the
unpaid balance on this Note shall become immediately due and payable without
demand or notice.
Principal and interest are payable in lawful money of the United States
of America. The undersigned may prepay any amount due hereunder, without premium
or penalty.
1
In the event the Company incurs any costs or fees in order to enforce
payment of this Note or any portion thereof, the undersigned agrees to pay to
the Company, in addition to such amounts as are owed pursuant to this Note, such
costs and fees, including, without limitation, a reasonable sum for attorneys'
fees.
The undersigned hereby waives to the full extent permitted by law all
rights to plead any statute of limitations as a defense to any action hereunder.
As security for the full and timely payment of this Note, the
undersigned hereunder pledges and grants to the Company a security interest in
Eight Hundred Seventy-Five Thousand Forty-Four (875,044) shares of the Company's
Class A Common Stock, $0.001 par value per share (the "Pledged Stock"),
purchased by the undersigned pursuant to the terms of the Stock Purchase
Agreement attached hereto as Exhibit A, together with any stock subscription
rights, liquidating dividends, stock dividends, new securities of any type
whatsoever, or any other property which the undersigned is or may be entitled to
receive as a result of the undersigned's ownership of the Pledged Stock. The
undersigned shall, upon execution of this Note, deliver all certificates
representing the Pledged Stock to the Secretary of the Company as the agent for
the Company (the "Agent") pursuant to the Joint Escrow Instructions attached
hereto as Exhibit B of even date herewith between the Company and the maker of
this Note. The Agent shall hold the Pledged Stock solely for the benefit of the
Company to perfect the security interest granted hereunder.
Notwithstanding the foregoing, the undersigned acknowledges that this
Note is a full recourse note and that the undersigned is liable for full payment
of this Note without regard to the value at any time or from time to time of the
Pledged Stock. In the event of any default in the payment of this Note, the
Company shall have and may exercise any and all remedies of a secured party
under the California Commercial Code, and any other remedies available at law or
in equity, with respect to the Pledged Stock. The undersigned (i) acknowledges
that state or federal securities laws may restrict the public sale of
securities, and may require private sales at prices or on terms less favorable
to the seller than public sales and (ii) agrees that where the Company, in its
sole discretion, determines that a private sale is appropriate, such sale shall
be deemed to have been made in a commercially reasonable manner.
In the event the undersigned desires to obtain a release from the
Company's security interest in some or all of the Pledged Stock, the undersigned
shall pay that portion of the principal balance of this Note equal to the
purchase price of the Pledged Stock being released plus accrued interest
thereon. The Company shall thereafter instruct the Agent to effect such release,
provided that the fair market value of the Pledged Stock to remain subject to
the Company's security interest (as determined by the Board of Directors of the
Company or by the closing price on the date of such instruction of the Company's
Class A Common Stock on the securities exchange or market system constituting
the primary market for such stock) shall satisfy the conditions of Regulation U,
as promulgated by the Board of Governors of the Federal Reserve System, or other
comparable law or regulation.
The failure of the Company to exercise any of the rights created
hereby, or to promptly enforce any of the provisions of this Note, shall not
constitute a waiver of the right to exercise such rights or to enforce any such
provisions.
2
As used herein, the undersigned includes the successors, assigns and
distributees of the undersigned.
As used herein, the Company includes the successors, assigns and
distributees of the Company, as well as a holder in due course of this Note.
This Note is made under and shall be construed in accordance with the
laws of the State of California, without regard to the conflict of law
provisions thereof.
/s/ Xxxx Xxxx
__________________________________________
Signature
Xxxx Xxxx
__________________________________________
Name Printed
00 Xxxxxxx Xxx Xxxxx
__________________________________________
Address
Xxxxxx Xxx Xxx, XX 00000
__________________________________________
BIZ Interactive Zone, Inc., a Delaware corporation, hereby approves the
terms of the above Promissory Note and Pledge Agreement executed by Xxxx Xxxx
effective as of Ju, 2000.
Dated: _________________, 2000 BIZ Interactive Zone, Inc.,
a Delaware corporation
/s/ Xxxxxx X. Xxxxxxx
__________________________________________
Xxxxxx X. Xxxxxxx, Chief Executive Officer
3
EXHIBIT A
STOCK PURCHASE AGREEMENT
Exhibit A
EXHIBIT B
JOINT ESCROW INSTRUCTIONS
These Joint Escrow Instructions are entered into as of July 24, 2000.
RECITALS
1. BIZ Interactive Zone, Inc., a Delaware corporation (the "Company"),
and the undersigned Purchaser (the "Purchaser") desire to appoint the Secretary
of the Company, as their agent (the "Agent") with respect to certain
certificate(s) evidencing shares of the Company's Class A Common Stock, par
value $0.001 per share, purchased by the Purchaser (the "Stock").
2. The Purchaser has executed a Promissory Note and Pledge Agreement
dated July 24, 2000 (the "Note").
ESCROW INSTRUCTIONS
The Company and the Purchaser hereby authorize and direct the Agent to
hold the documents and certificate(s) delivered to the Agent pursuant to these
Escrow Instructions and to take the following actions with respect thereto, and
the Company and the Purchaser hereby agree as follows:
1. The Purchaser hereby delivers and/or agrees to deliver to the Agent
the Purchaser's certificate(s) evidencing the Stock and an Assignment Separate
from Certificate executed in blank.
2. The provisions of these Escrow Instructions shall apply for so long
as the Company has a security interest in the Stock pursuant to the Note. Upon
full repayment by the Purchaser of all indebtedness under the Note, this escrow
shall terminate.
3. As security for the full repayment of the Note, the Purchaser has
granted (and hereby confirms) to the Company a security interest in the Stock,
together with any stock subscription rights, liquidation dividends, stock
dividends, new securities of any type whatsoever, or any other property which
the Company is or may be entitled to receive as a result of the Purchaser's
ownership of the Stock. Notwithstanding anything herein to the contrary, the
Agent holds the certificate(s) representing the Stock as the Company's agent to
perfect the Company's security interest in the Stock, and not as an escrow
holder for the Purchaser and the Company. Nothing herein shall be construed to
permit the Employee any control over the Stock while so held, the right to
direct disposal of the Stock, or any other rights inconsistent with the Agent's
possession of the certificate(s) as perfecting the Company's security interest.
In the event the Employee fails to make any payment under the Note, or otherwise
defaults in any obligation due the Company, the Agent shall deliver the
certificate(s) to the Company, or take such other action as the Company, as a
secured creditor under the California Commercial Code, shall direct.
Exhibit B-1
4. To facilitate the exercise of the Company's rights as a secured
party and the performance of these instructions, the Employee does hereby
constitute and appoint the Agent as the Employee's attorney-in-fact and agent
for the term of this escrow to execute with respect to such securities all stock
certificates, stock assignments, or other instruments which shall be necessary
or appropriate to make such securities negotiable and complete any transaction
herein contemplated including the Company's exercise of its rights as a secured
party. The Employee understands that such appointment is coupled with an
interest and is irrevocable. Subject to the provisions of these Escrow
Instructions, the Employee shall exercise all rights and privileges of a
stockholder of the Company while the Stock is held by the Agent; provided,
however, the Employee may not sell, transfer, dispose of, or in any manner
encumber any shares of the Stock while such shares of Stock are held by Agent
hereunder.
5. If at the time of termination of this escrow, the Agent shall have
in its possession any documents, securities, or other property belonging to the
Employee, the Agent shall deliver all of same to the Employee and shall be
discharged of all further obligations hereunder.
6. The Agent's duties hereunder may be altered, amended, modified, or
revoked only by a writing signed by the Company and the Employee, and approved
by the Agent.
7. The Agent shall not be personally liable for any act the Agent may
do or omit to do hereunder as escrow agent, agent for the Company, or attorney
in fact for the Employee while acting in good faith and in the exercise of the
Agent's own good judgment, and any act done or omitted by the Agent pursuant to
the advice of the Agent's own attorneys shall be conclusive evidence of such
good faith.
8. The Agent is hereby expressly authorized to disregard any and all
warnings by any of the parties hereto or by any other person, firm, corporation,
or other entity, excepting only orders or process of courts of law, and is
hereby expressly authorized to comply with and obey orders, judgments, or
decrees of any court. In the event the Agent obeys or complies with any such
order, judgment, or decree of any court, the Agent shall not be liable to any of
the parties hereto or to any other person, firm, corporation, or other entity by
reason of such compliance notwithstanding that any such order, judgment, or
decree shall be subsequently reversed, modified, annulled, set aside, vacated,
or found to have been entered without jurisdiction.
9. The Agent shall not be liable in any respect on account of the
identity, authorities, or rights of the parties executing or delivering or
purporting to execute or deliver any agreements or documents called for by the
Stock Purchase Agreement (the "Stock Purchase Agreement") or any documents or
papers deposited or called for hereunder.
10. The Agent shall not be liable for the barring of any rights under
the statute of limitations with respect to these Escrow Instructions or any
documents deposited with the Agent.
11. By signing these Escrow Instructions, the Agent becomes a party
hereto only for the purpose of said Escrow Instructions. The Agent shall not be
considered a party to the Stock Purchase Agreement or to any documents or
agreements called for by the Stock Purchase Agreement.
Exhibit B-2
12. The Agent may resign from its duties hereunder at any time upon
written notice to the Company and the Employee and delivery of all documents and
certificates held in this escrow to the successor escrow agent. If a successor
escrow agent has not been appointed within thirty (30) days, the Agent may
deliver all such documents and certificates to the Company, at which time, all
further responsibilities and duties of the Agent shall cease.
13. If prior to the termination of these Escrow Instructions the Agent
shall resign or otherwise cease to operate as escrow agent, a successor escrow
agent shall be designated by the Company. The Company may, at any time,
substitute another party in the Agent's place as escrow agent hereunder, and the
Employee hereby expressly accepts such substitution.
14. All notices and other communications hereunder shall be in writing
and shall be deemed given if delivered personally or mailed by registered or
certified mail (return receipt requested) to the parties at the following
addresses (or at such other address for a party as shall be specified by like
notice):
(a) if to the Company, to:
BIZ Interactive Zone, Inc.
0000 Xxxx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxxxxxxx 00000
Attn.: President
(b) if to the Employee, to:
Xxxx Xxxx
00 Xxxxxxx Xxx Xxxxx
Xxxxxx Xxx Xxx, XX 00000
(c) if to the Agent, to:
Secretary
BIZ Interactive Zone, Inc.
0000 Xxxx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxxxxxxx 00000
15. The provisions of these Escrow Instructions shall inure to the
benefit of and be binding upon the parties hereto and their respective heirs,
executors, administrators, successors and assigns.
16. These Escrow Instructions shall be governed, to the fullest extent
possible, by the laws contained in the California Commercial Code, including any
regulations or judicial interpretations with respect thereto. To the extent that
any matter is not governed by the laws contained in the California Commercial
Code, such matter shall be governed by the laws of the state of the Employee's
residence as such laws are applied to agreements between residents of such state
entered into and to be performed entirely within the such state without giving
effect to any applicable conflicts of law principles.
Exhibit B-3
17. These Escrow Instructions contain the entire understanding of the
Company and the Employee, and there are no other contracts, agreements,
understandings, representations, warranties, or covenants with respect to the
subject matter contained herein.
[REMAINDER OF PAGE LEFT INTENTIONALLY BLANK]
Exhibit B-4
IN WITNESS WHEREOF, the Company and the Employee have executed these
Escrow Instructions as of the date first above written.
BIZ INTERACTIVE ZONE, INC.,
a Delaware corporation
By: /s/ Xxxxxx X. Xxxxxxx
__________________________________
Title: Xxxxxx X. Xxxxxxx,
Chief Executive Officer
PURCHASER:
/s/ Xxxx Xxxx
______________________________________
Xxxx Xxxx
ESCROW AGENT:
/s/ Xxxxxx X. Xxxxxx
______________________________
Xxxxxx X. Xxxxxx, Secretary
Exhibit B-5
ASSIGNMENT SEPARATE FROM CERTIFICATE
FOR VALUE RECEIVED the undersigned does hereby sell, assign and
transfer unto______________________________________________ shares of Class A
Common Stock, par value $0.001 per shares, of BIZ Interactive Zone, Inc. (the
"Company") standing in the undersigned's name on the books of said corporation
represented by Certificate No. ________ herewith and does hereby irrevocably
constitute and appoint, Attorney to transfer the said stock on the books of said
corporation with full power of substitution in the premises.
Dated: ___________________
/s/ Xxxx Xxxx
________________________________________
Xxxx Xxxx
