Exhibit 10.3
THIS NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED,
OR ANY STATE SECURITIES LAWS. THIS NOTE HAS BEEN ACQUIRED FOR INVESTMENT AND NOT
WITH A VIEW TO DISTRIBUTION OR RESALE, AND MAY NOT BE SOLD, MORTGAGED, PLEDGED,
HYPOTHECATED OR OTHERWISE TRANSFERRED IN THE ABSENCE OF AN EFFECTIVE
REGISTRATION STATEMENT FOR SUCH NOTE UNDER THE SECURITIES ACT OF 1933, AS
AMENDED, AND ANY APPLICABLE STATE SECURITIES STATUTE OR SOME OTHER EXEMPTION
FROM THE REGISTRATION REQUIREMENTS OF SUCH ACT AND APPLICABLE LAWS OR AN OPINION
OF COUNSEL SATISFACTORY TO THE COMPANY THAT SUCH REGISTRATION IS NOT REQUIRED.
THIS NOTE IS ISSUED AT AN ORIGINAL ISSUE DISCOUNT
WORLD WASTE TECHNOLOGIES, INC.
SENIOR SECURED PROMISSORY NOTE
N- San Diego, California
$_______________ November 1, 2005
This SENIOR SECURED PROMISSORY NOTE (this "Note") is issued in connection
with an offering (the "Offering") by World Waste Technologies, Inc., a
California corporation (the "Company") of a series of senior secured notes and
common stock purchase warrants, as described in the Company's Private Placement
Memorandum dated as of October 7, 2005, as supplemented. In accordance with the
Offering, this Note is issued pursuant to a series of Subscription Agreements
(individually, a "Subscription Agreement" and collectively, the "Subscription
Agreements"), by and between the Company and each of the investors party thereto
(the "Lenders") and is entitled to the benefits of the Subscription Agreement.
The payment of the principal sum of this Note, including interest accrued
thereon, is secured pursuant to the terms of that certain Security Agreement
dated November 1, 2005 (the "Security Agreement"), by and between the Company
and the Lenders. Capitalized terms used herein and not defined shall have the
meanings ascribed to them in the Subscription Agreement.
1. Principal and Interest. The Company, for value received, hereby
promises to pay to the order of , or holder (either, the "Holder") in lawful
money of the United States, the principal amount of $ , together with interest
(computed on the basis of a 360 day year) accrued on the unpaid principal of
this Note at the rate of ten percent (10.0%) per annum commencing on the date
hereof and compounding quarterly. Accrued interest on this Note shall be payable
in arrears on December 31, March 31, June 30 and September 30 of each year,
commencing December 31, 2005.
This Note is due and payable (a) on the earlier of (i) the closing of one
or more equity financings occurring after the date hereof generating gross cash
proceeds to the Company in the aggregate amount of at least $9.0 million,
excluding any proceeds from the sale of securities pursuant to the Offering or
(ii) May 1, 2007 (the first to occur of the foregoing being referred to as the
"Maturity Date"); provided, however, that the Maturity Date may be extended by
written notice, made by the holders of no less than seventy five percent (75%)
in interest of the principal amount outstanding under all promissory notes
issued pursuant to the Offering (the "Purchased Notes") then outstanding (a
"Qualifying Percentage"), at any time prior to the Maturity Date, or (b) on
demand by written notice following a determination of the holders of a
Qualifying Percentage acting in good faith that an Event of Default has
occurred. The Company shall, on the Maturity Date or, if earlier, within one (1)
business day of receipt of the written notice referred to in the immediately
preceding sentence (the "Payment Date"), pay the outstanding principal and all
accrued and unpaid interest on this Note (as well as any other amounts payable
hereunder) as of the Maturity Date or the Payment Date, as applicable. If upon
the Maturity Date or the Payment Date the amount available for distribution to
each Lender is less than the amount that such Lender is entitled to pursuant to
the Subscription Agreement and such Lender's Note, then the Holder shall receive
such Holder's pro rata share pursuant to the Holder's outstanding principal
amount and accrued but unpaid interest.
2. Ranking. This Note is issued as a senior secured obligation of the
Company and ranks senior in right of payment to all of the Company's
Subordinated Indebtedness, whether now existing or hereinafter incurred or
created, and pari passu in right of payment with all existing and future Senior
Indebtedness of the Company. "Senior Indebtedness" means any indebtedness of the
Company, unless in the instrument creating or evidencing such indebtedness it is
provided that such indebtedness is subordinate in right of payment to any other
indebtedness of the Company. "Subordinated Indebtedness" means any indebtedness
of the Company that is not Senior Indebtedness.
3. No Usury. This Note is hereby expressly limited so that in no event
whatsoever, whether by reason of deferment or advancement of loan proceeds,
acceleration of maturity of the loan evidenced hereby, or otherwise, shall the
amount paid or agreed to be paid to the Holder hereunder for the loan, use,
forbearance or detention of money exceed the maximum interest rate permitted by
the laws of the State of California. If at any time the performance of any
provision involves a payment exceeding the limit of the price that may be
validly charged for the loan, use, forbearance or detention of money under
applicable law, then automatically and retroactively, ipso facto, the obligation
to be performed shall be reduced to such limit, it being the specific intent of
the Company and the Holder hereof that all payments under this Note are to be
credited first to interest as permitted by law, but not in excess of (i) the
agreed rate of interest hereunder, or (ii) that permitted by law, whichever is
the lesser, and the balance toward the reduction of principal.
4. Attorneys' Fees. If the indebtedness represented by this Note or any
part thereof is collected in bankruptcy, receivership or other judicial
proceedings or if this Note is placed in the hands of attorneys for collection
after default, the Company agrees to pay, in addition to the principal and
interest payable hereunder, reasonable attorneys' fees and costs incurred by the
Holder, as well as any and all interest that has accrued on the outstanding
principal after the commencement of bankruptcy, receivership or other judicial
proceedings.
5. Transfer. The rights and obligations of the Company and the Holder of
this Note will be binding upon and inure to the benefit of the successors,
assigns, heirs, administrators and transferees of the parties hereto.
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6. Notices. Any notice, other communication or payment required or
permitted hereunder shall be in writing and shall be deemed to have been given
if delivered as described in the Notices section of the Subscription Agreement
and to the appropriate addresses listed therein.
7. Negative Covenants. For so long as any Purchased Notes remain
outstanding, without the written consent of the holders of at least a Qualifying
Percentage, the Company shall not and shall not permit any of its subsidiaries
to, directly or indirectly:
(a) redeem, repurchase, declare or pay dividends or make any other
distributions ("Payments"), or set aside funds in respect thereof with respect
to any shares of the Company's capital stock (except for any Payments with
respect to shares of the Company's Series A Preferred Stock made in accordance
with the terms and restrictions of the Certificate of Determination governing
such shares and except for any Payments made in the form of shares of the
Company's common stock or warrants exercisable to acquire shares of the
Company's common stock);
(b) enter into an Acquisition involving the Company, or sell all or
substantially all of the Company's assets;
(c) incur any indebtedness, other than Permitted Indebtedness;
(d) incur any Liens, other than Permitted Liens;
(e) voluntarily dissolve, liquidate or wind-up the Company;
(f) engage in any transaction with any Affiliate (exclusive of
employment or consulting arrangements as currently in effect or on terms no more
onerous to the Company than those currently in effect, with individuals
providing services to the Company as of the date of this Note), except for (i)
transactions the terms of which in good faith are fair and reasonable to the
Company and are at least as favorable as the terms that could be obtained by the
Company in a comparable transaction made on an arm's length basis between
unaffiliated parties (as determined by the Board of Directors acting reasonably
and in good faith, as evidenced by a Board resolution), and (ii) the payment of
consent fees to Trellus Offshore Fund Limited, Trellus Partners, LP, Trellus
Partners II, LP, or any of their affiliated funds pursuant to an arrangement
approved by the Board of Directors;
(g) sell, transfer or otherwise dispose of any of its assets on
terms where such assets may be leased to or re-acquired by, the Company or any
of its subsidiaries, except pursuant to a transaction approved by the Company's
Board of Directors; or
(h) enter into any agreement with respect to any of the foregoing.
"Acquisition" shall mean any consolidation or merger of the Company with or into
any other corporation or other entity or person, or any other binding share
exchange or corporate reorganization, in which the shareholders of the Company
immediately prior to such consolidation, merger, binding share exchange or
reorganization, own less than fifty percent (50%) of the Company's voting power
immediately after such consolidation, merger, binding share exchange or
reorganization, or any transaction or series of related transactions in which in
excess of fifty percent (50%) of the Company's voting power is transferred.
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"Affiliate" shall mean, with respect to any Person, any of (a) a director,
officer or shareholder holding 5% or more of the capital stock (on a fully
diluted basis) of such Person, (b) a spouse, parent, sibling or descendant of
such Person (or a spouse, parent, sibling or descendant of any director or
officer of such Person) and (c) any other Person that, directly or indirectly
through one or more intermediaries, controls, or is controlled by, or is under
common control with, another Person. The term "control" includes, without
limitation, the possession, directly or indirectly, of the power to direct the
management and policies of a Person, whether through the ownership of voting
securities, by contract or otherwise.
"Lien" shall mean any security interest, pledge, bailment (in the nature of a
pledge or for purposes of security), mortgage, deed of trust, the grant of a
power to confess judgment, conditional sale or title retention agreement
(including any lease in the nature thereof), charge, encumbrance, easement,
reservation, restriction, cloud, right of first refusal or first offer, option,
or other similar arrangement or interest in real or personal property
"Permitted Indebtedness" shall mean (i) trade payables incurred in the ordinary
course of business, (ii) indebtedness constituting purchase money obligations
and up to $3.0 million of capital lease obligations, (iii) the Purchased Notes,
and (iv) up to $10.0 million principal amount of Subordinated Indebtedness
outstanding at any one time.
"Permitted Liens" shall mean (i) Liens for taxes, assessments, governmental
charges or claims not yet due or which are being contested in good faith; (ii)
statutory Liens of landlord and carriers', warehousemen's, mechanics',
suppliers', materialmen's, repairmen's or other like Liens arising in the
ordinary course of business; (iii) Liens incurred or deposits made in the
ordinary course of business in connection with workers' compensation,
unemployment insurance and other types of social security; (iv) easements,
rights-of-way, zoning or other restrictions, minor defects or irregularities in
title and other similar charges or encumbrances; (v) Liens (including
extensions, renewals and replacements thereof) upon real or tangible personal
property acquired after the date of any of the Purchased Notes; provided that
any such Lien is created solely for the purpose of securing indebtedness
representing, or incurred to finance, refinance or refund, the cost (including
the cost of construction) of the item of property subject thereto; (vi) Liens
securing reimbursement obligations with respect to letters of credit which
encumber documents and other property relating to such letters of credit and the
products and proceeds thereof; (vii) Liens securing the Purchased Notes; and
(viii) Liens existing on the date any of the Purchased Notes are issued and any
extensions, renewals or replacements thereof to the extent such extensions,
renewals or replacements are no less favorable to the holders of the Purchased
Notes.
"Person" shall be construed broadly and shall include an individual, a
partnership, a corporation, a limited liability company, an association, a joint
stock company, a trust, a joint venture, an unincorporated organization, or a
governmental entity (or any department, agency, or political subdivision
thereof."
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"Subordinated Indebtedness" shall mean any unsecured indebtedness that is
expressly subordinated and junior in right of payment to the Company's
obligations under the Purchased Notes, provided that such indebtedness has a
scheduled maturity date after the maturity date of the Notes, no scheduled
principal payments prior to its scheduled maturity, an interest rate no greater
than 14% per annum (exclusive of any warrant coverage) and subordination terms
reasonably satisfactory to the holders of the Purchased Notes.
8. Event of Default.
(a) General. If an Event of Default (as defined below) occurs, the
holders of no less than forty percent (40%) in interest of the principal amount
outstanding under all promissory notes issued pursuant to the Offering (a
"Threshold Percentage") may, by notice to the Company, declare the principal
amount then outstanding of, and the accrued interest and all other amounts
payable on this Note to be immediately due and payable. The Company will give
the Holder of this Note written notice of the occurrence of an Event of Default
promptly (setting forth in reasonable detail all facts related thereto) after
the Company has knowledge of the occurrence of any such event.
(b) Definition. For purposes of this Note, an "Event of Default" is
any of the following occurrences:
(i) The Company shall fail to pay the outstanding principal
and all accrued and unpaid interest and all other amounts payable on this Note
on the Maturity Date; or
(ii) The Company shall fail to pay any installment of interest
on this Note when and as due, as such payment failure shall continue uncured for
five (5) days; or
(iii) If the Company shall default (as principal or guarantor
or other surety) in the payment of any principal of or premium or interest on
any indebtedness which is outstanding in a principal amount of at least $500,000
in the aggregate (other than the Purchased Notes), and such default shall
continue for more than the period of grace, if any, specified therein and shall
not have been waived pursuant thereto, and such default shall not be cured by
the Company within 60 days thereafter; or
(iv) The Company shall be involved in financial difficulties
as evidenced (i) by its commencement of a voluntary case under Title 11 of the
United States Bankruptcy Code as from time to time in effect, the commencement
of an involuntary case under the United States Bankruptcy Code, or by its
authorizing, by appropriate proceedings of its Board or other pleading admitting
or failing to deny the material allegations of a petition filed against it
commencing an involuntary case under said Title 11, or seeking, consenting to or
acquiescing in the relief therein provided, or by its failing to controvert
within 60 days the material allegations of any such petition, (ii) by the entry
of an order for relief in any involuntary case commenced under said Title 11,
(iii) by its seeking relief as a debtor under any applicable law, other than
said Title 11, of any jurisdiction relating to the liquidation or reorganization
of debtors or to the modification or alteration of the rights of creditors, or
by its consenting to or acquiescing in such relief, (iv) by the entry of an
order by a court of competent jurisdiction (A) finding it to be bankrupt or
insolvent, (B) ordering or approving its liquidation, reorganization or any
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modification or alteration of the rights of its creditors, or (C) assuming
custody of, or appointing a receiver or other custodian for, all or a
substantial part of its property, or (v) by its making an assignment for the
benefit of, or entering into a composition with, its creditors, or appointing or
consenting to the appointment of a receiver or other custodian for all or a
substantial part of its property; or
(v) The Company shall have breached any material
representation or covenant in the Subscription Agreement, the Security
Agreement, the Warrants or this Note (other than such as are referred to above
in Section 8(b)), and, with respect to breaches capable of being cured, such
breach shall not have been cured within thirty (30) days following notice of
such material breach to the Company.
In case any one or more Events of Default shall occur and be continuing,
the holders of no less than a Threshold Percentage of the Purchased Notes at the
time outstanding may proceed to protect and enforce the rights of the holders by
an action at law, suit in equity or other appropriate proceeding, whether for
the specific performance of any agreement contained herein or in the
Subscription Agreement or the Security Agreement or for an injunction against a
violation of any of the terms hereof or thereof, or in aid of the exercise of
any power granted hereby or thereby or by law or otherwise. In case of a default
in the payment of any principal of or premium, if any, or interest on this Note,
the Company will pay to the Holder such further amount as shall be sufficient to
cover the cost and expenses of collection, including, without limitation,
reasonable attorneys' fees, expenses and disbursements. No course of dealing and
no delay on the part of the Holder in exercising any right, power or remedy
shall operate as a waiver thereof or otherwise prejudice the Holder's rights,
powers or remedies. No right, power or remedy conferred by this Note, the
Security Agreement or the Subscription Agreement upon the Holder shall be
exclusive of any other right, power or remedy referred to herein or therein or
now or hereafter available at law, in equity, by statute or otherwise, provided,
however, that the holders of less than a Threshold Percentage of Purchased Notes
shall have no right to declare any portion of the outstanding principal on the
Purchased Notes or any accrued but unpaid interest thereon to be due and payable
or to otherwise act with respect to their Purchased Notes or Collateral (as such
term is defined in the Security Agreement).
9. Waivers and Amendments. The Company hereby waives presentment, demand
for performance, notice of non-performance, protest, notice of protest and
notice of dishonor. No delay on the part of the Holder in exercising any right
hereunder shall operate as a waiver of such right or any other right. Any term
of this Note or the Security Agreement may be amended or waived with the written
consent of the Company and the holders of no less than a Qualifying Percentage,
as provided in this Note and the Security Agreement. The Holder acknowledges
that because this Note and the Security Agreement may be amended with the
consent of a Qualifying Percentage, and because action by at least a Threshold
Percentage is required to declare this Note to be in default, the Holder's
rights hereunder and thereunder (including, without limitation, the Holder's
rights to receive principal and interest as due) may be amended and waived
without the Holder's consent.
10. Governing Law. This Note is being delivered in, and shall be governed
by and construed in accordance with, the laws of the State of New York, without
regard to conflicts of laws provisions thereof.
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11. No Prepayment Penalty. The Company may prepay all or any portion of
this Note at any time, without penalty or premium.
12. Miscellaneous. In the event any one or more of the provisions of this
Note shall for any reason be held to be invalid, illegal or unenforceable, in
whole or in part or in any respect, or in the event that any one or more of the
provisions of this Note operate or would prospectively operate to invalidate
this Note, then and in any such event, such provision(s) only shall be deemed
null and void and shall not affect any other provision of this Note and the
remaining provisions of this Note shall remain operative and in full force and
effect and in no way shall be affected, prejudiced, or disturbed thereby.
WORLD WASTE TECHNOLOGIES, INC.
By:
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