EXHIBIT 4.10
THIS NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED
(THE "ACT"), OR THE SECURITIES LAWS OF ANY STATE, AND MAY NOT BE OFFERED, SOLD
OR OTHERWISE TRANSFERRED, PLEDGED OR HYPOTHECATED IN THE ABSENCE OF A
REGISTRATION STATEMENT IN EFFECT WITH RESPECT TO SUCH NOTE, OR DELIVERY OF AN
OPINION OF COUNSEL IN FORM AND SUBSTANCE SATISFACTORY TO THE ISSUER OF THIS NOTE
THAT SUCH OFFER, SALE OR TRANSFER, PLEDGE OR HYPOTHECATION IS IN COMPLIANCE WITH
THE ACT AND APPLICABLE STATE SECURITIES LAWS.
PROMISSORY NOTE
$150,000.00 Laguna Hills, California
January 17, 2003
FOR VALUE RECEIVED, xXxxxxxxxxx.xxx Corporation, a Delaware
corporation ("Borrower"), promises to pay to Frastacky Associates, Inc., an
Ontario, Canada corporation ("Lender"), or order, the principal amount of One
Hundred Thousand Dollars ($100,000.00), with interest from the date hereof on
the unpaid principal balance under this Promissory Note (this "Note") at the
rate of ten percent (10%) per annum (on the basis of a 365-day year and the
actual number of days elapsed). The principal amount of this Note together with
all accrued but unpaid interest shall be due and payable as follows: $7,500 on
or by May 9, 2003; $7,500 on or by June 13, 2003; $30,000 on or by July 11,
2003; $60,000 on or by August 8, 2003; the balance, including any unpaid
interest on or by September 12, 2003; (each the "Maturity Dates"). (As used
herein, "Lender" shall refer to the then current registered holder of this
Note.)
This Note may be converted at the sole option of Lender into shares
of Borrower's Common stock at a purchase price of $0.50 per share, at any time
prior to payment in full of this Note. To effect such conversion, Lender shall
deliver this Note to Borrower for cancellation together with written notice of
conversion. Borrower shall, no later than ten (10) business days after receipt
of this Note and notice of conversion, cancel the Note and issue to Lender or
the holder of the Note stock certificates representing the shares of Common
stock into which this Note is converted.
In order to induce Xxxxxx to accept this Note, Borrower hereby makes
the following representations:
1. To the best knowledge of Borrower, there is no litigation
pending or threatened against Borrower except for immaterial (less than
$25,000) litigation or threats of litigation in the ordinary course of
Xxxxxxxx's business.
2. To the best knowledge of Borrower, all information and
documents provided to Lender by or on behalf of Borrower, including
unaudited financial statements, are complete and accurate as of the date
thereof.
3. The execution and delivery of this Note and any document
executed as a part of the transaction between Xxxxxx and Borrower
contemplated hereby shall not constitute a breach of or a default under
any agreement or understanding to which the Borrower is a party.
4. Borrower will use the proceeds of this Note only to pay
Xxxxxxxx's trade payables and regular payroll obligations.
5. Xxxxxxxx's offices are located at 00000 Xxxxxxx xx xx Xxxxxxx,
Xxxxx 000, Xxxxxx Xxxxx, Xxxxxxxxxx 00000.
7. Borrower is a corporation duly organized, validly existing,
and in good standing under the laws of the State of Delaware. Borrower is
duly qualified to do business in the State of California. This Note, and
all documents executed as a part of the transaction between Xxxxxx and
Borrower contemplated hereby, have been duly authorized and approved by
Borrower and are legal and binding obligations of Borrower according to
their terms.
All dollar amounts described in this Note are United States Dollars.
All payments under this Note shall be made to Lender or its order, in lawful
money of the United States of America and in immediately available funds
delivered to Lender at the offices of Lender at its then principal place of
business or at such other place as Lender shall designate in writing for such
purpose from time to time. If a payment under this Note otherwise would become
due and payable on a Saturday, Sunday or legal holiday, the due date thereof
shall be extended to the next day which is not a Saturday, Sunday or legal
holiday, and interest shall be payable thereon during such extension.
This Note may be prepaid in whole or in part at any time, without
premium or penalty. Any prepayment of this Note shall be applied in the
following order: (i) to the payment of accrued but unpaid interest; (ii) to the
payment of costs and expenses provided for under this Note, and (iii) to the
payment of outstanding principal.
No waiver or modification of any of the terms of this Note shall be
valid or binding unless set forth in a writing specifically referring to this
Note and signed by a duly authorized officer of Borrower and of Lender, and then
only to the extent specifically set forth therein.
If any default occurs in any payment due under this Note, Borrower
and any guarantors and endorsers hereof, and their successors and assigns,
promise to pay all costs and expenses, including attorneys' fees, incurred by
Xxxxxx in collecting or attempting to collect the indebtedness under this Note,
whether or not any action or proceeding is commenced. None of the provisions
hereof and none of Xxxxxx's rights or remedies under this Note on account of any
past or future defaults shall be deemed to have been waived by Xxxxxx's
acceptance of any past due payments or by any indulgence granted by Xxxxxx to
Borrower.
Borrower and all guarantors and endorsers hereof, and their
successors and assigns, hereby waive presentment, demand, diligence, protest and
notice of every kind and agree that they shall remain liable for all amounts due
under this Note notwithstanding any extension of time or change in the terms of
payment of this Note granted by Lender or any delay or failure by Lender to
exercise any rights under this Note.
This Note has not been registered under the Act or the securities
laws of any state, in reliance upon exemptions from registration or
qualification. This Note is subject to restrictions on transferability and
resale, and may not be hypothecated, pledged, transferred or
sold except as permitted by registration or exemption under applicable federal
and state laws. This Note is transferable only if Lender supplies evidence
satisfactory to Borrower (which may include opinion of counsel from a law firm
acceptable to Borrower) that Xxxxxx has complied with the appropriate
registration requirements or that such registration is not required. This
paragraph is applicable only if, and to the extent that, this Note is subject to
the Act or the securities laws of any state.
Unless proper notice of transfer has been received by Xxxxxxxx,
Borrower may deem and treat the person in whose name this Note is registered as
its absolute owner for the purpose of receiving payments of interest and
principal, and for all other purposes.
This Note is secured by that certain written Security Agreement dated August 15,
2001 ("Security Agreement"), pursuant to which Xxxxxxxx granted Lender a
security interest in substantially all of the assets of Xxxxxxxx, then owned or
thereafter acquired, and all proceeds thereof , and has been duly perfected by
the filing of a UCC Financing Statement with the Secretary of State of
California on August 24, 2001 and with the Secretary of State of Delaware on
August 24, 2001. This Note is an Obligation and future indebtedness of Borrower
to Lender as described in the Security Agreement. As a further inducement to
Lender to accept this Note, Borrower represents and warrants that (a) Borrower
has not granted to any person any lien against any of Borrower's assets which is
senior in priority to the lien in favor of Lender pursuant to the Security
Agreement, (b) no person has, has asserted, or has threatened, any lien, claim
or encumbrance against any of Borrower's assets which is senior in priority to
the lien in favor of Lender pursuant to the Security Agreement, (c) the
principal amount of the UCC liens against Xxxxxxxx's assets which is junior in
priority to the lien in favor of Lender pursuant to the Security Agreement does
not exceed $230,000, and (d) Borrower is not in default under any of the
obligations which are secured by liens against Borrower's assets which are
junior in priority to the lien in favor of Lender pursuant to the Security
Agreement.
The following shall each constitute an Event of Default under this
Note: (a) the failure to make any payment of principal or interest when due,
(b)the dissolution or liquidation of the Maker, (c) any breach or default under
the Security Agreement, (d) Maker is not generally paying its bills as they come
due, (e) any representation or warranty by Maker contained in this Note is not
(or is no longer) true, (f) the filing of a petition by or against Maker under
the United States Bankruptcy Code as amended from time to time, or similar law;
(g)the appointment of a receiver, trustee, custodian or liquidator of or for any
part of the assets or property of Maker, or (g)Maker makes a general assignment
for the benefit of creditors As to this Note and all other Obligations secured
by the Security Agreement, Borrower is not generally paying its bills as they
come due if Borrower is in default under any of the obligations which are
secured by liens against Borrower's assets which are junior in priority to the
lien in favor of Lender pursuant to the Security Agreement. If any Event of
Default occurs, then the holder of this Note, at holder's option, may declare
all sums of principal and interest outstanding hereunder to be immediately due
and payable.
If a court of competent jurisdiction finds that the terms of this
Note violate any applicable usury law, then the obligation to pay interest on
this Note shall be reduced to the maximum legal limit under applicable law
governing the interest payable in connection with this Note, and any amount of
interest paid by Borrower that is deemed in excess of the maximum interest rate
that could be paid at such time shall be deemed to have been a prepayment of
principal (without penalty) on this Note.
This Note shall be governed by and construed in accordance with the
laws of the State of California, without giving effect to the principles thereof
relating to conflicts of law; provided, that, Lender reserves any and all rights
it may have under federal law.
This Note does NOT amend, restate or supercede any obligation,
agreement or understanding between Borrower and Lender, including but not
limited to that certain Promissory Note dated August 15, 2001 in the principal
amount of $350,000, that certain Promissory Note dated October 24, 2001 in the
principal sum of $125,000, that certain Promissory Note dated November 28, 2001
in the principal sum of $75,000, that certain Promissory Note dated November 25,
2002 in the principal amount of $250,000, and that certain Promissory Note dated
January 6, 2003.
IN WITNESS WHEREOF, Xxxxxxxx has caused this Note to be duly
executed the day and year first above written.
xXxxxxxxxxx.xxx Corporation,
a Delaware corporation
/s/ Xxxxx Xxxxxx
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Xxxxx Xxxxxx
Chief Executive Officer
