Exhibit 10.15
NOTE PURCHASE AGREEMENT
This Note Purchase Agreement (the "Agreement") is made, entered into
and effective the 13th day of March 2000, by and between xXxxx.xxx Inc., a
Delaware corporation having an office at 000 Xxxxx Xxxxx Xxxx, Xxxxxxxxx,
Xxxxxxx 00000 (the "Company"), and Seafont Pty. Ltd., a corporation incorporated
under the laws of Australia with a principal address at Xxxxx 0, 00 Xxxxx Xxxxxx
Xxxxxx, Xxxxxxxxx (the "Purchaser"). The parties hereto agree as follows.
1. SALE AND PURCHASE OF SECURITIES.
(a) AGREEMENT TO PURCHASE AND SELL. The Company agrees to sell to the
Purchaser and, in reliance on the representations, warranties and covenants made
herein by the Company, the Purchaser agrees to purchase from the Company, one or
more Subordinated Convertible Debentures (the "Debentures"), in the form of the
speciman attached hereto as Exhibit A due one year from the date of issue in the
aggregate principal amount of $500,000 with accrued interest at 10% per annum
and convertible into shares of the Company's Common Stock, par value $.01 per
share, at a rate of 1 share per $7 of principal balance converted (the
"Conversion Shares").
(b) PURCHASE PRICE OF SECURITIES. The Purchase Price payable by the
Purchaser for the Debentures shall be Five Hundred Thousand U.S. Dollars
($500,000). Such Purchase Price shall be paid, by bank wire transfer to an
account designated by the Company in writing to the Purchaser, upon the
Company's delivery of the Debentures to the Purchaser.
2. REPRESENTATIONS AND WARRANTIES. To induce the Purchaser to enter
into and perform its obligations under this Agreement, the Company hereby
represents and warrants to the Purchaser as follows:
(a) ORGANIZATION AND EXISTENCE. The Company is a corporation duly
incorporated, validly existing and in good standing under the laws of Delaware;
it has obtained all licenses and permits and has filed all registrations in all
jurisdictions that are necessary to the operation of its present business. The
Company is duly qualified as a foreign corporation in all jurisdictions where
such qualification is required.
(b) AUTHORIZATION AND NON-CONTRAVENTION. The execution and delivery of
this Agreement by the Company and the performance of the duties of the Company
set forth herein are within the Company's corporate powers, have been duly
authorized by all necessary corporate action, have been approved by the
Company's Board of Directors, do not require the approval of the Company's
stockholders and do not contravene (i) the Company's Certificate of
Incorporation or Bylaws or (ii) any statute, rule, regulation or other law or
any contractual restriction binding on or affecting the Company, and do not
result in or require the creation of any lien, security interest or other charge
or encumbrance upon or with respect to any of its properties.
(c) FULLY-PAID AND NONASSESSABLE SECURITIES. The Conversion Shares to
be delivered to upon the conversion of the Debentures will, on delivery in
accordance with the terms hereof and thereof, be duly authorized, validly
issued, fully paid, nonassessable and free and clear of any and all liens,
encumbrances or restrictions, other than any express restrictions on resale as
described elsewhere in this Agreement or in the Debentures.
(d) ENFORCEABILITY OF OBLIGATIONS. This Agreement is the legal, valid
and binding obligation of the Company, enforceable against it in accordance with
its terms.
(e) CLAIMS AND LITIGATION. There are no claims, actions or proceedings,
pending or
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threatened, by or against or affecting the Company, including actions before a
court, governmental agency or arbitrator, other than those arising or instituted
after the date of this Agreement and prior to Closing in which the amount
claimed as loss or damage (or if no specific amount is claimed, then the
Company's good faith reasonable estimate of the amount that will be claimed)
exceeds $20,000 in the aggregate. Furthermore, the Company has no knowledge of
any conflict between its rights respecting the tvemail technologies and the
rights of others or of the basis for any claim that has not yet been asserted.
(f) TAXES. The Company has filed all required federal, state and other
tax returns and paid any and all income, sales, property or other taxes due
pursuant thereto or pursuant to any assessment received by the Company, except
such taxes, if any, as are being contested in good faith and as to which
adequate reserves have been provided. All such tax returns filed by the Company
accurately reflect the tax due by the Company for the fiscal periods for which
such returns were filed.
(g) STOCK AND RECORDS. All outstanding capital stock of the Company was
and is properly issued, duly paid and non-assessable, and all books and records
of the Company, including but not limited to its minute books, bylaws, and books
of account, are accurate and complete.
(h) CONVERTIBLE SECURITIES AND STOCK PURCHASE RIGHTS. Except as set
forth on Schedule 1 hereto, no shares of the Company's unissued capital stock
are reserved for any purpose other than. Except as set forth on Schedule 1 there
are no other outstanding commitments, warrants, options, securities convertible
into the Company's stock or other rights to acquire any shares of the Company's
capital stock; there are no preemptive or similar rights with respect to the
issuance or sale of the Company's capital stock; there is no commitment of the
Company to issue or sell any shares of its capital stock; there are no
agreements that now or in the future require the Company to repurchase, redeem,
retire or otherwise acquire any shares of its capital stock; and there are no
agreements (other than agreements designed to require compliance with federal or
state securities laws) restricting the transfer of any shares of the Company's
capital stock.
(i) TITLE TO PROPERTY. The Company has good and marketable title to all
property and assets to be owned by it including, without limitation, all of the
intellectual property and all assets shown in the Company's March 31, 1999
balance sheet, free of all liens, encumbrances, pledges and security interests.
(j) INVESTMENTS. The Company has no ownership interest or other
investment in any other person, corporation, partnership or other entity.
(k) OUTSTANDING GUARANTIES. The Company has no outstanding guaranties
or other agreements relating to the debts or liabilities of any other Person
except for such wholly and partially owned subsidiaries as listed in Exhibit B.
(l) SEC FILINGS. The Company has filed (i) all forms, reports,
statements and other documents required to be filed with the Securities and
Exchange Commission ("SEC'), including, without limitation (1) all Annual
Reports on Form l0-KSB, (2) all Quarterly Reports on Form l0-QSB, (3) all proxy
statements relating to meetings of stockholders (whether annual or special), (4)
all Reports on Form 8-K, (5) all other reports or registration statements and
(6) all amendments and supplements to all such reports and registration
statements (collectively, the "the Company SEC Reports") and (ii) all forms,
reports, statements and other documents required to be filed with any other
applicable federal regulatory authorities (all such forms, reports, statements
and other documents being referred to herein, collectively, as the "the Company
Reports"). The Company Reports were prepared in all material respects in
accordance with the
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requirements of applicable law (including, with respect to the Company SEC
Reports, the Securities Act and Exchange Act, as the case may be, and the roles
and regulations of the SEC thereunder applicable to such the Company SEC
Reports) and (y) did not at the time they were filed contain any untrue
statement of a material fact or omit to state a material fact required to be
stated therein or necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading.
(m) SURVIVAL OF REPRESENTATIONS AND WARRANTIES. The representations and
warranties made in sub-paragraphs (a) through (1) of this Paragraph 2 are true
and correct on the date of this Agreement and shall be true and correct on the
date of the Closing, (ii) shall survive the sale of the Debentures for a period
of one year after the date of the Closing, except to the extent that such
representations and warranties are determined to have been untrue as of the date
hereof or the date of the Closing because of claims or actions (whether based on
alleged violations of securities laws, fraud, preemptive rights or otherwise) by
current or former stockholders of the Company based on events which occurred
prior to the date of this Agreement.
3. AFFIRMATIVE COVENANTS.
(a) SEC REPORTING OBLIGATIONS. For so long as the Company's Common
Stock is registered under the Securities Exchange Act of 1934, as amended, the
Company (i) will file all forms, reports, statements and other documents
required to be filed with the Securities and Exchange Commission ("SEC"),
including, without limitation (1) all Annual Reports on Form 10-KSB, (2) all
Quarterly Reports on Form l0-QSB, (3) all proxy statements relating to meetings
of stockholders (whether annual or special), (4) all Reports on Form 8-K, (5)
all other reports or registration statements and (6) all amendments and
supplements to all such reports and registration statements and (ii) all forms,
reports, statements and other documents required to be filed with any other
applicable federal or state regulatory authorities. The Company Reports shall be
prepared in all material respects in accordance with the requirements of
applicable law (including, the Securities Act and Exchange Act, as the case may
be, and the rules and regulations of the SEC thereunder applicable to such
Company Reports) and shall not at the time they are filed contain any untrue
statement of a material fact or omit to state a material fact required to be
stated therein or necessary in order to make the statements therein, in the
light of the circumstances under which they are made, not misleading.
(b) TRANSFER REGISTRATION. The Company shall not register any transfer
of the Debentures or upon conversion, the Conversion Shares, not made in
accordance with the provisions of Regulation S ("Reg S"), pursuant to
registration under the Securities Act of 1933, as amended, or pursuant to an
available exemption from registration under such Act. Furthermore, the Company
will not issue the Conversion Shares upon conversion of the Debentures until the
Company is reasonably satisfied that (i) the Debentures are not converted within
the United States, and (ii) that the Conversion Shares shall not be delivered
within the United States upon exercise, other than in offerings deemed to meet
the definition of "offshore transaction" pursuant to Rule 902(h) of the Act,
unless otherwise registered under the Act or an exemption from such registration
is available.
4. CLOSING. The Purchaser shall not be obligated to perform its
obligations hereunder unless all of the following conditions which the Company
is hereby obligated to satisfy and perform shall have been satisfied and
performed on or prior to the Closing.
(a) AUTHORIZATION. Execution and performance of all terms and
conditions hereof by the Company shall have been approved by its Board of
Directors, in a resolution in a manner satisfactory in form and substance to the
Purchaser, and the Company shall have duly executed and delivered this Agreement
and stock certificates evidencing the Purchase hereunder.
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(b) PERFORMANCE. The Company shall have delivered to Purchaser, all of
the schedules, certificates and other papers required to be delivered on or
before the date of this Agreement. None of the Company's representations and
warranties set forth in this Agreement or any information contained in any
schedule, attachment or exhibit hereto or in any writing delivered to the
Purchaser shall be or shall have been discovered by the Purchaser or its
attorneys, accountants, employees or other personnel to be untrue or incorrect
in any material respect on the date of the Closing.
(c) WAIVER. Any Closing condition or covenant specified in this
Paragraph 4 may be waived by the Purchaser, and such waiver shall be deemed to
have been made to the extent the Purchaser agrees to and consummates the Closing
and one or more of the conditions set forth in this Section 4 have not been
fully satisfied.
5. INVESTOR REPRESENTATIONS; TRANSFER. The Purchaser represents and
warrants that it: (i) is an "accredited investor" as defined under federal
securities laws; (ii) is not a "U.S. Person", as defined in Reg S; (iii) that
the Debentures, and, if applicable, the Conversion Shares, are being acquired by
the Purchaser for its own account and the Purchaser is not acquiring the
Debentures or the Conversion Shares for the account or benefit of a "U.S.
Person"; (iv) has its principal place of business in Sydney, Australia; (v) that
such acquisition is made without any present intention of reoffering, reselling
or distributing the Debentures or the Conversion Shares; (vi) prior to making
such acquisition, the Purchaser was given unrestricted access to all of the
Company's books and records for the purpose of personally examining any such
documents as the Purchaser deemed material to his investment decision; and (vii)
prior to making such acquisition, the Purchaser was given an opportunity to ask
questions of and receive answers from the Company's officers, directors,
attorneys and accountants respecting any matter which the Purchaser deemed
material to its investment decision and all such questions have been answered to
the full satisfaction of the Purchaser. The Purchaser further understands that
all certificates representing the Debentures and Conversion Shares shall bear
the following legend:
THE SECURITIES REPRESENTED HEREBY HAVE BEEN ISSUED IN RELIANCE
ON REGULATION S OF THE SECURITIES ACT OF 1933, AS AMENDED (THE
"ACT"), AND HAVE BEEN ACQUIRED FOR INVESTMENT AND HAVE NOT
BEEN REGISTERED UNDER THE ACT OR ANY STATE SECURITIES LAW, AND
THEY MAY NOT BE SOLD OR TRANSFERRED EXCEPT PURSUANT TO
REGULATION S, REGISTRATION UNDER THE ACT OR AN EXEMPTION
THEREFROM UNDER SAID ACT AND UNDER ALL APPLICABLE STATE
SECURITIES LAWS. FURTHERMORE, ALL HEDGING TRANSACTIONS
INVOLVING THESE SECURITIES MAY NOT BE CONDUCTED UNLESS IN
COMPLIANCE WITH THE ACT.
The Purchaser further covenants to only resell the Debentures and the
Conversion Shares in accordance with the provisions of Reg S, pursuant to
registration under the Securities Act of 1933, as amended, or pursuant to an
exemption thereunder and shall not engage in any hedging transactions with
regard to the Debentures or the Conversion Shares unless in compliance with such
Act. The foregoing restrictions on the transferability of the Debentures and the
Conversion Shares shall cease and terminate (i) when such securities shall have
been effectively registered under the Securities Act and all applicable state
securities laws, or otherwise disposed of in accordance with the requirements of
Reg S or another exemption under the Securities Act, or (ii) the Company shall
have received an opinion of counsel reasonably acceptable to the Company to the
effect that such restrictions are no longer required in order to ensure
compliance of any future transfer with the Securities Act and all applicable
state securities laws. Whenever such
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restrictions shall terminate as to any of the Debentures or the Conversion
Shares the holder thereof shall be entitled to receive from the Company, without
expense, new certificates of like tenor not bearing the legend set forth above.
6. NOTICE. All notices, requests, demands and other communications
relating to this Agreement shall be in writing, including by facsimile or email,
addressed to the address set forth herein or such other address as any party
shall notify the other party in writing, and shall be effective, in the case of
written notice by mail, upon placement into the mails (first class, postage
prepaid), and in the case of notice by facsimile or email, on the day sent.
7. OTHER PROVISIONS. This Agreement shall be binding upon, inure to the
benefit of and be enforceable by the original parties hereto and their
respective heirs, personal representatives, successors and assigns. This
Agreement shall be governed by the laws of the State of Vermont except to the
extent such laws are preempted by federal law. If any of the provisions
contained in this Agreement are invalid, illegal or unenforceable in any
respect, the validity, legality and enforceability of the remaining provisions
shall not in any way be affected or impaired thereby. Any provision of this
Agreement may be waived by the person entitled to the benefit thereof; provided,
no delay or failure on the part of any person in exercising any right hereunder,
and no partial or single exercise thereof, shall constitute a waiver of any
other rights hereunder. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument. This Agreement may only
be modified in writing signed by all the parties hereto.
8. SUBMISSION TO EXCLUSIVE JURISDICTION. With respect to actions and
proceedings to enforce the provisions of, arising from, or relating to this
Agreement or the transactions contemplated hereby, each of the parties hereto
consents to personal jurisdiction in the state or federal courts of Vermont and
irrevocably agrees that all such actions and proceedings shall be litigated
exclusively in such courts. Further, each of the parties hereto waives any
objection that it may have to the conduct of any action or proceeding in any
such court based on improper venue or FORUM NON CONVENIENS. Each of the parties
hereto waives personal service of any and all process upon it and agrees that
valid service of process may be made by mail or courier service directed to it
at the address set forth herein and that service so made shall be deemed to be
completed upon the earlier of actual receipt or ten (10) days after the same
shall have been posted.
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IN WITNESS WHEREOF, the parties have executed this Note Purchase
Agreement, effective as of the date first above written.
XXXXX.XXX INC.
BY: /s/ XXXX XXXXXXXX
-----------------------------------
XXXX X. XXXXXXXX, PRESIDENT AND CEO
SEAFONT PTY. LTD.
BY: /s/ XXXXXX XXXXX
-----------------------------------
NAME: XXXXXX XXXXX
TITLE: CHIEF EXECUTIVE OFFICER
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EXHIBIT A
[SPECIMAN ONLY]
THE SECURITIES REPRESENTED HEREBY HAVE BEEN ISSUED IN RELIANCE ON REGULATION S
OF THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), AND HAVE BEEN ACQUIRED
FOR INVESTMENT AND HAVE NOT BEEN REGISTERED UNDER THE ACT OR ANY STATE
SECURITIES LAW, AND THEY MAY NOT BE SOLD OR TRANSFERRED EXCEPT PURSUANT TO
REGULATION S, REGISTRATION UNDER THE ACT OR AN EXEMPTION THEREFROM UNDER SAID
ACT AND UNDER ALL APPLICABLE STATE SECURITIES LAWS. FURTHERMORE, ALL HEDGING
TRANSACTIONS INVOLVING THESE SECURITIES MAY NOT BE CONDUCTED UNLESS IN
COMPLIANCE WITH THE ACT.
A-1 $500,000.00
XXXXX.XXX INC
000 XXXXX XXXXX XXXX
XXXXXXXXX, XXXXXXX 00000
MARCH 13, 2000
1-YEAR 10 PERCENT SUBORDINATED CONVERTIBLE DEBENTURE
DUE MARCH 13, 2001
xXxxx.xxx Inc., a Delaware corporation, (the "Corporation"), for value received,
promises to pay to Seafont Pty. Ltd., an Australian corporation (the "Holder"),
the sum of Five Hundred Thousand U.S. Dollars ($500,000) on March 13, 2001 (the
"due date"), together with interest accrued thereon at the rate of 10 percent
per annum, computed from March 13, 2000 (the "issue date"). Payment of principal
and interest shall be made in lawful money of the United States of America and
shall be wire transferred to the owner hereof at the address appearing below,
unless the conversion option is exercised as set forth below in Section 1. This
Debenture is a duly authorized issue of the Corporation.
This Note is issued pursuant to a Note Purchase Agreement dated March 13, 2000
(the "Purchase Agreement") by and between the Corporation and the Holder.
1. CONVERSION. The holder of this Debenture may at time prior to the
maturity hereof (except that, if the Corporation has called this Debenture for
redemption, the right to convert shall terminate at the close of business on the
second business day prior to the day fixed as the date for such redemption),
convert the principal amount hereof into shares of the Corporation's Common
Stock. The Conversion ratio shall be $7 of debenture principal per share of
Common Stock. To convert this Debenture, the holder hereof must surrender the
same at the office of the Corporation, together with a written instrument of
transfer in a form satisfactory to the Corporation, properly completed and
executed and with a written notice of conversion. All rights of the holder of
this Debenture shall, to the extent of the principal and interest thereof
converted, cease as of the date of such conversion.
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2. FRACTIONAL SHARES. In lieu of issuing any fraction of a share upon
the conversion of this Debenture, the Corporation shall pay to the holder hereof
for any fraction of a share otherwise issuable upon the conversion, cash equal
to the same fraction of $7 per unit.
3. REDEMPTION. The Corporation may at any time prepay in whole or in
part, without penalty, the principal amount, plus accrued interest to
the date of prepayment, of all outstanding debentures of this issue.
4. SUBORDINATION.
a. The Corporation, for itself, its successors and
assigns, covenants and agrees, and each holder of
this Note by his acceptance thereof likewise
covenants and agrees, that the payment of the
principal of and interest on each and all of this
Note shall be subordinate and subject, to the extent
and in the manner hereinafter set forth, in right of
payment to the prior payment in full of all Senior
Indebtedness.
b. Upon any distribution of assets of the Corporation
upon any dissolution, winding up, liquidation, or
reorganization of the Corporation, whether in
bankruptcy, insolvency, or receivership proceedings
or upon an assignment for the benefit of creditors of
any other dissolution, winding up, liquidation, or
reorganization of the Corporation:
(i) All Senior Indebtedness shall first be paid
in full, or provision made for such payment
in full of the principal thereof, and
premium, if any, and interest thereon,
before any payment is made on account of the
principal of, or interest on, the Notes;
(ii) Any payment or distribution of assets of the
Corporation of any kind or character,
whether in cash, property, or securities
(other than stock of the Corporation as
reorganized or readjusted or securities of
the Corporation or any other corporation
provided for by a plan of reorganization or
readjustment the payment of which is
subordinate, at least to the extent provided
in this Section with respect to the Notes,
to the payment of all Senior Indebtedness at
the time outstanding and to any securities
issued in respect thereof under any such
plan of reorganization or readjustment), to
which the holder of this Note would be
entitled except for the provisions of this
Section shall be paid by the liquidating
trustee or agent or other person making such
payment of distribution, whether a trustee
in bankruptcy, receiver, or liquidating
trustee or other trustee or agent, directly
to the holders of Senior Indebtedness or
their representative or representatives or
the trustee or trustees under any indenture
under which any instruments evidencing any
of such Senior Indebtedness may have been
issued, ratably according to the aggregate
amounts remaining unpaid on account of the
principal of, and premium, if any, and
interest on, the Senior Indebtedness held or
represented by each, to the extent necessary
to make payment in full of all Senior
Indebtedness remaining unpaid, after giving
effect to any concurrent payment or
distribution, or provision therefor, to the
holders of such Senior Indebtedness; and
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(iii) In the event that, notwithstanding the
foregoing, any payment or distribution of
assets of the Corporation of any kind or
character, whether in cash, property, or
securities (other than stock of the
Corporation as reorganized or readjusted or
securities of the Corporation or any other
corporation provided for by a plan of
reorganization or readjustment the payment
of which is subordinate, at least to the
extent provided in this Section with respect
to the Note, to the payment of all Senior
Indebtedness at the time outstanding and to
any securities issued in respect thereof
under any such plan of reorganization or
readjustment), shall be received by the
holder of this Note before all Senior
Indebtedness is paid in full, or provision
made for its payment, such payment or
distribution shall be paid over to the
holders of Senior Indebtedness remaining
unpaid or unprovided for or their
representative or representatives or to the
trustee or trustees under any indenture
under which any instruments evidencing any
of such Senior Indebtedness may have been
issued, as provided in the foregoing
subparagraph (2), for application to the
payment of such Senior Indebtedness until
all such Senior Indebtedness shall have been
paid in full after giving effect to any
concurrent payment or distribution, or
provision therefor, to the holders of such
Senior Indebtedness.
c. Subject to the payment in full of all Senior
Indebtedness, the holder of this Note shall be
subrogated to the rights of the holders of Senior
Indebtedness to receive payments or distributions of
cash, property, or securities of the Corporation
applicable to the Senior Indebtedness until the
principal of and interest on this Note shall be paid
in full, and no such payments or distributions in
respect of this Note of cash, property, or securities
distributable to the Senior Indebtedness under the
provisions here shall, as between the Corporation,
its creditors other than the holders of Senior
Indebtedness, and the holder of this Notes, be deemed
to be a payment by the Corporation to or on account
of this Note. It is understood that the provisions of
this Section are and are intended solely for the
purpose of defining the relative rights of the holder
of this Note, on the one hand, and the holders of the
Senior Indebtedness on the other hand. Nothing
contained in this Section is intended to or shall
impair, as between the Corporation, its creditors
other than the holders of Senior Indebtedness, and
the holder of this Note, the absolute and
unconditional obligation of the Corporation to pay
the holder of this Note the principal of and interest
on this Note as and when the same shall become due
and payable in accordance with their terms, or is
intended to or shall affect the relative rights of
the holder of this Note and creditors of the
Corporation other than the holders of the Senior
Indebtedness; nor shall anything herein or therein
prevent the holder of this Note from exercising all
remedies otherwise permitted by applicable law upon
default under this Note, subject to the rights, if
any, under this Section of the holders of Senior
Indebtedness in respect of cash, property or
securities of the Corporation received upon the
exercise of any such remedy.
d. Upon any distribution of assets of the Corporation
referred to in this Section, the holder of this Note
shall be entitled to rely upon a certificate of the
liquidating trustee or agent or other person making
any distribution to such holder for the
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purpose of ascertaining the persons entitled to
participate in such distribution, the holders of the
Senior Indebtedness and other indebtedness of the
Corporation, the amount thereof or payable thereon,
and all other facts pertinent thereto or to this
Section.
e. If there shall have occurred a default in the payment
of the principal of (or premium, if any) or interest
on any Senior Indebtedness, then, unless and until
such default shall have been cured or waived, no
payment of principal or interest shall be made by the
Corporation on this Note, and no holder of this Note
shall be entitled to receive any such payment.
Nothing contained in this Section shall, however (1)
affect the obligation of Corporation to make or
prevent the Corporation from making, at any time,
except during the pendency of any dissolution,
winding up, liquidation, or reorganization
proceedings or except as provided in the first
sentence of this subsection, payments of principal of
or interest on this Note, or (2) prevent the
application by any paying agent of any moneys
deposited with it by the Corporation to the payment
of or on account of the principal of, or interest on,
this Note, if, at the time of such deposit, the
paying agent did not have written notice of any event
prohibiting the making of such payment or deposit by
the Corporation; or (3) be construed as preventing
the occurrence of any Event of Default hereunder.
f. No right of any present or future holder of any
Senior Indebtedness of the Corporation to enforce
subordination as herein provided shall at any time or
in any way be prejudiced or impaired by any act or
failure to act on the part of the Corporation or by
any act or failure to act, in good faith, by any such
holder, or by an noncompliance by the Corporation
with the terms, provisions, and covenants of this
Note, regardless of any knowledge thereof any such
holder may have or be otherwise charged with.
g. Any renewal or extension of the time of payment of
any Senior Indebtedness or the exercise by the
holders of Senior Indebtedness of any of their rights
under the Senior Indebtedness, including without
limitation the waiver of default thereunder or the
release of any security therefor, may be made or done
all without notice to or assent from the holder of
this Note. No compromise, alteration, amendment,
modification, extension, renewal, or other change of,
or waiver, consent, or other action in respect of,
any liability or obligation under or respect of, or
of any of the terms, covenants, or conditions or any
indenture or other instrument under which any Senior
Indebtedness is outstanding or of such Senior
Indebtedness, and no release of property securing any
Senior Indebtedness, whether or not such release is
in accordance with the provisions of any applicable
document, shall in any way alter or affect any of the
provisions of this Section.
h. "Senior Indebtedness" for purposes of this Section
shall mean all indebtedness (principal and interest)
now existing or hereafter incurred of the Corporation
for money borrowed from banks or other financial
institutions: (i) which is secured by the assets of
the Corporation; and (ii) is not by its express terms
subordinate and junior to or on parity with this
Note.
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5. DEFAULT. If any of the following events occur ("Event of Default"),
the entire unpaid principal amount of, and accrued and unpaid interest on, this
Debenture shall immediately be due and payable, and the Corporation shall pay
all costs of collection including, but not limited to, reasonable attorneys'
fees and expenses incurred by the owner(s) or its assigns on account of such
collection, whether or not suit is brought:
a. The Corporation fails to pay the principal of this
Debenture at its maturity;
b. The Corporation commences any voluntary proceeding
under any bankruptcy, reorganization, arrangement,
insolvency, readjustment of debt, receivership,
dissolution, or liquidation law or statute, of any
jurisdiction, whether now or subsequently in effect;
or the Corporation is adjudicated as bankrupt by a
court of competent jurisdiction; or the Corporation
petitions or applies for, acquiesces in, or consents
to, the appointment of any receiver or trustee of the
Corporation or for all or substantially all of its
property or assets; or the Corporation makes an
assignment for the benefit of its creditors; or the
Corporation admits in writing its inability to pay
its debts as they mature; or
c. There is commenced against the Corporation any
proceeding relating to the Corporation under any
bankruptcy, reorganization, arrangement, insolvency,
readjustment of debt, receivership, dissolution, or
liquidation law or statute, of any jurisdiction,
whether now or subsequently in effect, and the
proceeding remains undismissed for a period of 60
days or the Corporation by any act indicates its
consent to, approval of, or acquiescence in the
proceeding; or a receiver or trustee is appointed for
the Corporation or for all or substantially all of
its property or assets, and the receivership or
trusteeship remains undischarged for a period of 60
days; or a warrant of attachment, execution or
similar process is issued against any substantial
part of the property or assets of the Corporation,
and the warrant or similar process is not dismissed
or bonded within 60 days after the levy.
6. REGISTERED OWNER. The Corporation shall treat the person or persons
whose name or names appear on this Debenture as the absolute owner or owners
hereof for the purpose of receiving payment of, or on account of, the principal
and interest due on this Debenture and for all other purposes, unless and until
written notice satisfactory to the Corporation is provided by the registered
owner of assignment hereof.
7. ASSIGNMENT. The Corporation may assign its rights hereunder to any
person or entity. No assignment of rights or obligations shall be effective
until delivery of written notice of such assignment is made by the assigning
party to the other party hereto.
8. RESTRICTIONS ON TRANSFER. This Note and any shares of the
Corporation's Common Stock received upon conversion of this Note may not be
transferred other than as provided in the Purchase Agreement.
9. RELEASE OF SHAREHOLDERS, OFFICERS AND DIRECTORS. This Debenture is
the obligation of the Corporation only, and no recourse shall be had for the
payment of any principal or interest hereon against
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any shareholder, officer or director of the Corporation, either directly or
through the Corporation, by virtue of any statute for the enforcement of any
assessment or otherwise. The holder or holders of this Debenture, by the
acceptance hereof, and as part of the consideration for this Debenture, release
all claims and waive all liabilities against the foregoing persons in connection
with this Debenture.
10. GOVERNING LAW. This Debenture and all terms and conditions herein
shall be governed by and construed and in accordance with the laws of the State
of Vermont excluding the state's conflict of law provisions.
IN WITNESS WHEREOF, THE CORPORATION HAS SIGNED THIS DEBENTURE THIS 13TH
DAY OF MARCH, 2000.
XXXXX.XXX INC.
BY: [SPECIMAN ONLY]
--------------------------
REGISTERED OWNER:
SEAFONT GROUP HOLDINGS PTY. LTD.
BY: /s/ XXXXXX XXXXX
----------------
XXXXXX XXXXXX, CEO
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EXHIBIT B
WebATM, SolutioNet, Ltd. and Navis Technologies, Inc.
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SCHEDULE 1
1. 5,000,000 shares of the Company's Convertible Preferred Stock, par
value $.01 per share.
2. Warrants to acquire 2,000,000 shares of the Company's Common Stock par
value $.01 per share.
3. Options to acquire shares of the Company's Common Stock issued to
certain employees and consultants as incentive compensation.
4. 1-Year 12 Percent Convertible Debenture Due May 3, in the principal
amount of $30,000.
5. 1-Year 12 Percent Convertible Debenture Due May 3, 2000, in the
principal amount of $50,000.
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