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MED/WASTE, INC.
XXXXXX SECURED CONVERTIBLE PROMISSORY NOTE
THIS NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED
(THE AACT@), OR UNDER ANY STATE SECURITIES LAW AND MAY NOT BE PLEDGED, SOLD,
ASSIGNED OR TRANSFERRED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT
WITH RESPECT THERETO UNDER THE ACT AND ANY APPLICABLE STATE SECURITIES LAW, OR
UNLESS THE COMPANY RECEIVES AN OPINION OF COUNSEL, SATISFACTORY TO THE COMPANY,
THAT SUCH REGISTRATION IS NOT REQUIRED. THE COMPANY'S SUBSCRIPTION AGREEMENT NTH
THE HOLDER CONTAINS ADDITIONAL PROVISIONS RESTRICTING THE TRANSFER OF THIS NOTE.
A COPY OF SUCH AGREEMENT IS AVAILABLE FOR INSPECTION AT THE COMPANY'S OFFICE.
$______________ January 31, 2000
FOR VALUE RECEIVED, MED/WASTE, INC., a Delaware corporation
("Company"), with its principal office at 0000 X.X. 000xx Xxxxxx, Xxxxx 000,
Xxxxx Xxxxx, Xxxxxxx 00000, promises to pay to the order of
______________________________________________ ("Holder"), the principal amount
of ________________________________________ Dollars ($_________) on December 31,
2002 (the AMaturity Date@), in such coin or currency of the United States of
America as at the time of payment shall be legal tender for the payment of
public or private debts. Interest shall be payable on the unpaid balance of said
principal amount from time to time outstanding at the rate of ten percent (10%)
per annum; provided, however, that for the period from and including the date of
the occurrence of any Event of Default as set forth in Section 3, to but not
including the date such Event of Default is cured or waived, the interest rate
shall be increased to fifteen percent (15%) per annum. Interest shall be payable
in arrears from the date of issuance or from the most recent Interest Payment
Date (as hereinafter defined) to which interest has been paid, quarterly on
April 1, July 1, October 1 and January 2 in each year, commencing the date
hereof (each as AInterest Payment Date@). The interest so payable on any
Interest Payment Date will be paid to the Holder in whose name this Note is
requested at the close of business fifteen (15) days prior to the respective
Interest Payment Date (a ARecord Date@). Interest shall be computed on the basis
of the actual number of days elapsed and the actual number of days in the
relevant period.
If this Note is converted into shares of Common Stock $.001 par
value per share of the Company (ACommon Stock@) pursuant to Section 5 below. (a)
on or prior to a Record Date, interest shall be paid from the immediately prior
Interest Payment Date through the date of conversion
This Note is issued pursuant to a subscription agreement between
the Company and the Holder ("Subscription Agreement") and is secured by a second
lien on certain collateral more specifically described in that certain Security
Agreement entered into by the Company for the benefit of the Holder, among
others ("Security Agreement"), both of which are available for inspection at the
Company's principal office. Reference herein to the Subscription Agreement and
the Security Agreement shall in no way impair the absolute and unconditional
obligation of the Company to pay both principal and interest hereon as provided
herein, subject to the subordination provided below.
Certain rights and remedies of the Holder are described in the
Security Agreement which appoints an independent agent to be selected by the
Company in its reasonable discretion prior to the initial closing of the
Offering as agent ("Agent") for the Holder thereunder and hereunder to exercise
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the powers delegated to it including, without limitation, powers with respect to
the enforceability and collectability of all amounts due hereunder. Reference to
the Security Agreement is made for a complete description of the rights, powers
and obligations of the Agent, including the Agent's duty to act in certain
circumstances at the direction of the "Required Lenders," as such term is
defined therein
1. SUBORDINATION. Notwithstanding anything herein to the
contrary, the obligations of the Company created by this Note are subordinate in
right of payment to any amounts owing by the Company pursuant to that certain
Consolidating, Amended and Restated Loan Agreement dated December 31, 1998 by
and between Med/Waste, Inc., its subsidiaries, Union Planters Bank, N.A.,
BankAtlantic, F.S.B., The Provident Bank and Republic National Bank of Miami
creating a $35 million credit facility (the ACredit Facility@). So long as the
Credit Facility is not in default and there is no condition, event or act which,
with the giving of notice, passage of time or both, would constitute a default,
the Company may make regular Interest Payments; provided however no principal
payments may be made without the prior consent of the lenders of the Credit
Facility. The Company reserves the right to refinance the obligations under the
Credit Facility with new lenders in amounts not to exceed the maximum amount
permitted under the existing Credit Facility. The Notes without further action
on the part of the holders or the Company will be subordinate to such new credit
facility.
2. PREPAYMENT. Notwithstanding anything herein to the contrary,
this Note may be prepaid or called by the Company at any time in whole, or in
part, without penalty or premium, subject to the subordination in favor of the
lenders of the Credit Facility, provided that on the day that the redemption
notice is given by the Company to the registered holders (ANotice of
Repayment@), the average of the closing bid price per share of the Common Stock
wherever the Common Stock then trades, during twenty (20) trading days out of
the thirty (30) consecutive trading days ending five (5) trading days prior to
the date the redemption notice is sent, is at least two hundred (200%) percent
per share of the Conversion Price. Any notice to redeem ("Redemption Notice")
must be given to all Registered Holders no less than thirty (30) days nor more
than forty-five (45) days prior to the date set forth for redemption
("Redemption Date"). This Note shall be paid (and prepaid, if applicable) only
pro rata with certain additional notes of like tenor being issued
contemporaneously herewith, subject to each Holder=s conversion rights. The date
designated for repayment in the Notice of Payment shall be the APrepayment
Date@.
3. EVENTS OF DEFAULT.
(a) Upon the occurrence of any of the following events
(herein called "Events of Default"):
(i) The Company shall fail to pay the principal
of or interest on this Note when due;
(ii) An Event of Default shall occur under the
Credit Facility giving effect to any applicable notice provisions or cure
periods set forth in the documents;
(iii) (A) The Company shall commence any
proceeding or other action relating to it in bankruptcy or seek reorganization,
arrangement, readjustment of its debts, receivership, dissolution, liquidation,
winding-up, composition or any other relief under any bankruptcy law, or under
any other insolvency, reorganization, liquidation, dissolution, arrangement,
composition, readjustment of debt or any other similar act or law, of any
jurisdiction, domestic or foreign, now or hereafter existing; or (B) the Company
shall admit the material allegations of any petition or pleading in connection
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with any such proceeding; or (C) the Company shall apply for, or consent or
acquiesce to, the appointment of a receiver, conservator, trustee or similar
officer for it or for all or a substantial part of its property; or (D) the
Company shall make a general assignment for the benefit of creditors;
(iv)(A) The commencement of any proceedings or
the taking of any other action against the Company in bankruptcy or seeking
reorganization, arrangement, readjustment of its debts, liquidation,
dissolution, arrangement, composition, or any other relief under any bankruptcy
law or any other similar act or law of any jurisdiction, domestic or foreign,
now or hereafter existing and the continuance of any of such events for sixty
(60) days undismissed, unbonded or undischarged; or (B) the appointment of a
receiver, conservator, trustee or similar officer for the Company for any of its
property and the continuance of any of such events for sixty (60) days
undismissed, unbonded or undischarged;
(v) An "Event of Default" (as defined in the
Security Agreement) shall have occurred under the Security Agreement, after
giving effect to any applicable notice provisions and cure periods set forth in
the Security Agreement;
(vi) The Company shall fail to perform any
obligation of the Company contained in the Subscription Agreement; provided,
however, that if such failure is capable of being cured, such failure is not
cured within fifteen (15) days after the Company's receipt of written notice of
same;
(vii) The Company shall fail to comply with any
of its obligations under this Note, other than payment; provided, such failure
is not remedied within thirty (30) days after the Company's receipt of written
notice of same;
(viii) The Company shall default with respect to
any indebtedness for borrowed money (other than under this Note) in a principal
amount in excess of $200,000 if either (a) the effect of such default is to
allow the creditor to accelerate the maturity of such indebtedness (giving
effect to any applicable grace periods) or (b) the holder of such indebtedness
declares the Company to be in default (giving effect to any applicable grace
periods); or
(ix) Any judgment or judgments against the
Company or any attachment, levy or execution against any of its properties for
any amount in excess of $50,000 in the aggregate shall remain unpaid, or shall
not be released, discharged, dismissed, stayed or fully bonded for a period of
forty-five (45) days or more after its entry, issue or levy, as the case may be;
then, and in any such event, the Holder, at its option and without any written
notice to the Company, may declare the entire principal amount of this Note then
outstanding together with accrued unpaid interest thereon immediately due and
payable, and the same shall forthwith become immediately due and payable without
presentment, demand, protest, or other notice of any kind, all of which are
expressly waived. The Events of Default listed herein are solely for the purpose
of protecting the interests of the Holder of this Note. If the Note is not paid
in full upon acceleration, as required above, interest shall accrue on the
outstanding principal of and interest on this Note from and including the date
of the Event of Default to but not including the date of payment at a rate equal
to the lesser of fifteen percent (15%) per annum or the maximum interest rate
permitted by applicable law.
(b) NON-WAIVER AND OTHER REMEDIES. No course of dealing
or delay on the part of the Holder of this Note in exercising any right
hereunder shall operate as a waiver or otherwise prejudice the right of the
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Holder of this Note. 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.
(c) COLLECTION COSTS; ATTORNEY'S FEES. In the event this
Note is turned over to an attorney for collection or Holder otherwise seeks
advice of an attorney in connection with the exercise of its rights hereunder
upon the occurrence of an Event of Default, the Company agrees to pay all
reasonable costs of collection, including reasonable attorney's fees and
expenses and all out of pocket expenses incurred in connection with such
collection efforts, which amounts may, at the Holders option, be added to the
principal hereof.
4. OBLIGATION TO PAY PRINCIPAL AND INTEREST: COVENANTS. No
provision of this Note shall alter or impair the obligation of the Company,
which is absolute and unconditional, to pay the principal of and interest on
this Note at the place, at the respective times, at the rates, and in the
currency herein prescribed.
4.1 AFFIRMATIVE COVENANTS. The Company covenants and
agrees that, while this Note is outstanding, it shall:
(a) Pay all senior obligations accruing under
the Credit Facility;
(b) Pay and discharge all taxes, assessments and
governmental charges or levies imposed upon it or upon its income and profits,
or upon any properties belonging to it before the same shall be in default;
provided, however, that the Company shall not be required to pay any such tax,
assessment, charge or levy that is being contested in good faith by proper
proceedings and adequate reserves for the accrual of same are maintained if
required by generally accepted accounting principles;
(c) Preserve its corporate existence and
continue to engage in business of the same general type as conducted as of the
date hereof; and
(d) Comply in all respects with all statutes,
laws, ordinances, orders, judgments, decrees, injunctions, rules, regulations,
permits, licenses, authorizations and requirements ("Requirement(s)") of all
governmental bodies, departments, commissions, boards, companies or associations
insuring the premises, courts, authorities, officials, or officers, that are
applicable to the Company; except where the failure to comply would not have a
material adverse effect on the Company; provided that nothing contained herein
shall prevent the Company from contesting the validity or the application of any
Requirements.
4.2 NEGATIVE COVENANTS. The Company covenants and agrees
that while this Note is outstanding it will not directly or indirectly:
(a) Make or forgive any loans to any Insiders or
guarantee or otherwise in any way become or be responsible for indebtedness for
borrowed money, or for obligations, in either case of any of the Insiders,
contingently or otherwise, other than such guaranties existing as of the date
hereof and advancement of expenses in the ordinary course of business. For
purposes of this Note, AInsiders shall mean any officer, director or 5% or
greater shareholder;
(b) Declare or pay any cash dividends or make
any interest payments in cash to the holders of any of its outstanding equity or
debt securities, other than such dividends accruing or payable on the Company=s
Series A Preferred Stock;
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(c) Sell, transfer or dispose of any of its
assets other than in the ordinary course of its business and for fair value; or
(d) Purchase, redeem, retire or otherwise
acquire for value any of its capital stock now or hereafter outstanding.
(e) Increase the salary or other compensation or
benefits paid or provided to any officer or director of the Company except to
the extent that such increase (a) is commercially reasonable and in accordance
with industry standards and (b) is approved by a majority of the non-employee
members of the Board of Directors of such Borrower.
5. CONVERSION.
5.1 RIGHT TO CONVERT. Each Holder may at any time and from time to
time, commencing thirty (30) days after the original issuance of the Note,
convert all or any amount of the principal amount of the Notes then owned by
such Holder into shares of Common Stock of the Company at a conversion price per
share of Common Stock equal to $.543 per share (the AConversion Price@).
Notwithstanding the giving by the Company of Notice of Repayment, the Holder may
exercise the Holder's conversion rights set forth in this Section 5 at any time
up to one (1) business day prior to the Repayment Date.
5.2 MECHANICS AND EFFECT OF CONVERSION INTEREST. In order
to convert the unpaid principal amount hereof into shares of Common Stock, the
Holder shall surrender this Note, with the form of Conversion Notice annexed to
this Note completed and executed, to the Company at its principal executive
office. The Company shall, as soon as practicable, but not later than five (5)
business days after the date of receipt of this Note, issue and deliver to a
location in the United States designated by the Holder (a) a certificate for the
number of shares of Common Stock to which the Holder shall be entitled as
aforesaid; and (b) a check payable to the order of the Holder in the amount of
interest accrued through the Conversion Date on the principal amount so
converted. Such conversion shall be deemed to have been made immediately prior
to the close of business on the date on which the written notice is received by
the Company in accordance herewith ("Conversion Date"), and the Holder shall be
treated for all purposes as the record holder of such shares of Common Stock as
of such Conversion Date.
5.3 ISSUANCE OF COMMON STOCK. All Common Stock which may
be issued upon conversion of the Note will, upon issuance, be duly issued, fully
paid and non-assessable and free from all taxes, liens, and charges with respect
to the issue thereof. At all times that any Notes are outstanding, the Company
shall have authorized and shall have reserved for the purpose of issuance upon
such conversion into Common Stock of all Notes, a sufficient number of shares of
Common Stock to provide for the conversion of all outstanding Notes at the then
effective Conversion Price. Without limiting the generality of the foregoing,
if, at any time, the Conversion Price is decreased or increased, the number of
shares of Common Stock authorized and reserved for issuance by the Company upon
the conversion of the Notes shall be proportionately increased or decreased, as
the case may be.
5.4 ADJUSTMENTS.
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(a) If the outstanding shares of the Company's
Common Stock shall be subdivided or split into a greater number of shares, or a
dividend in Common Stock shall be paid in respect of Common Stock, the
Conversion Price in effect immediately prior to such subdivision or at the
record date of such dividend shall, simultaneously with the effectiveness of
such subdivision or split or immediately after the record date of such dividend,
be proportionately reduced. If the outstanding shares of Common Stock shall be
combined or reverse-split into a smaller number of shares, the Conversion Price
in effect immediately prior to such combination or reverse-split shall,
simultaneously with the effectiveness of such combination or reverse-split, be
proportionately increased. When any adjustment is required to be made in the
Conversion Price, the number of shares of Common Stock purchasable upon the
conversion of this Note shall be changed to the number determined by dividing
(i) an amount equal to the number of shares issuable upon the conversion of this
Note immediately prior to such adjustment, multiplied by the Conversion Price in
effect immediately prior to such adjustment, by (ii) the Conversion Price in
effect immediately after such adjustment.
(b) If there shall occur any capital
reorganization or reclassification of the Company's Common Stock (other than a
change in par value or a subdivision or combination as provided for in
subsection (a) above), or the payment of a liquidating distribution, then, as
part of any such reorganization, reclassification or liquidating distribution,
lawful provision shall be made so that the Holder of this Note shall have the
right thereafter to receive upon the conversion hereof (to the extent, if any,
still convertible) the kind and amount of shares of stock or other securities or
property which such Holder would have been entitled to receive if, immediately
prior to any such reorganization, reclassification or liquidating distribution,
as the case may be, such Holder had held the number of shares of Common Stock
which were then purchasable upon the conversion of this Note. In any such case,
appropriate adjustment (as reasonably determined by the Board of Directors of
the Company) shall be made in the application of the provisions set forth herein
with respect to the fights and interests thereafter of the Holder of this Note
such that the provisions set forth in this Section 5.4 (including provisions
with respect to adjustment of the Conversion Price) shall thereafter be
applicable, as nearly as practicable, in relation to any shares of stock or
other securities or property thereafter deliverable upon the conversion of this
Note.
(c) No adjustment in the per share Conversion
Price shall be required unless such adjustment would require an increase or
decrease in the Conversion Price of at least $0.01; provided, however, that any
adjustments which by reason of this paragraph are not required to be made shall
be carried forward and taken into account in any subsequent adjustment. All
calculations under this Section 5.4 shall be made to the nearest cent or to the
nearest 1/100th of a share, as the case may be. Anything in this Section 5.4, to
the contrary notwithstanding, the Company shall be entitled to make such
reductions in the per share Conversion Price, in addition to those required by
this Section 5.4, as in its discretion it shall deem to be advisable in order
that any stock dividend, subdivision of shares or distribution rights to
purchase stock or securities convertible or exchangeable for stock hereafter
made by the Company to its stockholders shall not be taxable.
(d) Upon the happening of any event requiring an
adjustment of the Conversion Price hereunder, the Company shall forthwith give
written notice thereto to the Holder of this Note stating the adjusted
Conversion Price and the adjusted number of shares purchasable upon the
conversion hereof resulting from such event and setting forth in reasonable
detail the method of calculation and the facts upon which such calculation is
based.
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5.5 FRACTIONAL SHARES. The Company shall not be required
to issue fractions of shares of Common Stock upon conversion. If any fractions
of a share would, but for this Section 5.5, be issuable upon any conversion, in
lieu of such fractional share the Company shall round up or down to the nearest
whole number of shares, with a fraction of 2 being rounded up.
6. REGISTRATION RIGHTS. The Holder shall have certain
registration rights with respect to the Common Stock issuable upon conversion of
the Note (ARegistrable Securities@) as hereinafter provided:
6.1 The Company agrees, at its sole cost and expense, to
file a registration statement on the appropriate form under the Securities Act
of 1933 (the A1933 Act@) with the Securities and Exchange Commission ("SEC")
covering all of the shares Stock issuable upon conversion of the Note and such
additional shares of Common Stock that may be issued pursuant to the
anti-dilution rights contained in the Note within sixty (60) days following the
Company=s eligibility to utilize Form S-3 for the registration of its
securities. The Company will use its best efforts to have such registration
statement declared effective as soon as possible thereafter. Notwithstanding
anything to the contrary contained herein, if such registration statement shall
not filed within such period, then the Conversion Price shall be reduced (and
concomitantly the number of shares of Common Stock issuable upon the conversion
of the Note shall increase) by the percentage resulting from multiplying three
(3%) percent by the number of months, or any part thereof, beyond said period
until the initial registration statement is filed.
6.2 If, at any time after six (6) months following the
date of the Final Closing, the Company shall file with the SEC a registration
statement under the 1933 Act registering any shares of Common Stock owned by any
person or entity, the Company, shall give written notice to each Holder thereof
prior to such filing.
6.3 Within fifteen (15) days after such notice from the
Company each Holder shall give written notice to the Company whether or not the
Holder desires to have all of the Holder's Common Stock included in the
registration statement. If a Holder fails to give such notice within such
period, such Holder shall not have the right to have such Holder's Registrable
Securities registered pursuant to such registration statement. If a Holder gives
such notice, then the Company shall include such Xxxxxx's Registrable Securities
in the registration statement at the Company=s sole cost and expense, subject to
the remaining terms of this Paragraph 6.
6.4 If the registration statement relates to an
underwritten offering, and the underwriter shall determine in writing that the
total number of shares of, Common Stock to be included in the offering,
including the Registrable Securities, shall exceed the amount which the
underwriter deems to be appropriate for the offering, the number of shares of
the Registrable Securities shall be reduced in the same proportion as the
remainder of the shares in the offering and each Holder's Registrable Securities
included in such registration statement will be reduced proportionately. For
this purpose, if other securities in the registration statement are derivative
securities, their underlying shares shall be included in the computation. The
Holders shall enter into such agreements as may be reasonably required by the
underwriters and the Holders shall pay to the underwriters commissions relating
to the sale of their respective Registrable Securities.
6.5 The Holders shall have two (2) opportunities to have
the Registrable Securities registered under this Paragraph 6.
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6.6 The Holder shall furnish in writing to the Company
such information as the Company shall reasonably require in connection with a
registration statement.
6.7 If and whenever the Company is required by the
provisions of this Paragraph 6 to use its best efforts to register any
Registrable Securities under the 1933 Act, the Company shall, as expeditiously
as possible under the circumstances:
(a) Prepare and file with the SEC a registration
statement with respect to such Registrable Securities and use its best efforts
to cause such registration statement to become effective as soon as possible and
remain effective.
(b) Prepare and file with the SEC such
amendments and supplements to such registration statement and the prospectus
used in connection therewith as may be necessary to keep such registration
statement current and to comply with the provisions of the 1933 Act, and any
regulations promulgated thereunder, with respect to the sale or disposition of
all Registrable Securities covered by the registration statement required to
effect the distribution of the securities, but in no event shall Med/Waste, Inc.
be required to do so for a period of more than one (1) year following the
effective date of the registration statement.
(c) Furnish to the sellers participating in the
offering, copies (in reasonable quantities) of summary, preliminary, final,
amended or supplemented prospectuses, in conformity with the requirements of the
1933 Act and any regulations promulgated thereunder, and other documents as
reasonably may be required in order to facilitate the disposition of the
securities, but only while the Company is required under the provisions hereof
to keep the registration statement current.
(d) Use its best efforts to register or qualify
the Registrable Securities covered by such registration statement under such
other securities or blue sky laws of such jurisdictions of the United States as
the sellers participating in the offering shall reasonably request, and do any
and all other acts and things which may be reasonably necessary to enable each
participating Seller to consummate the disposition of the Registrable Securities
in such jurisdictions.
(e) Upon request, deliver promptly to counsel of
each seller participating in the offering copies of all correspondence between
the SEC and Med/Waste, Inc., its counsel or auditors and all memoranda relating
to discussions with the SEC or its staff with respect to the registration
statement and permit each such Seller to do such investigation at such Seller's
sole cost and expense, upon reasonable advance notice, with respect to
information contained in or omitted from the registration statement as it deems
reasonably necessary. Each Seller agrees that it will use its best efforts not
to interfere unreasonably with Med/Waste, Inc.'s business when conducting any
such investigation and each Seller shall keep any such information received
pursuant to this Paragraph G confidential.
(f) Pay all registration expenses incurred in
connection with a registration of Registrable Securities, whether or not such
registration statement shall become effective provided that each seller shall
pay all underwriting discounts, commissions and transfer taxes, and their own
counsel fees, if any, relating to the sale or disposition of such Seller's
Registrable Securities pursuant to a registration statement. As used herein,
"Registration Expenses" means any and all reasonable and customary expenses
incident to performance of or compliance with the registration rights set forth
herein, including, without limitation, (i) all SEC and stock exchange or
National Association of Securities Dealers, Inc. registration and filing fees,
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(ii) all fees and expenses of complying with state securities or blue sky laws
(including reasonable fees and disbursements of counsel for the underwriters in
connection with blue sky qualifications of the Registrable Securities but no
other expenses of the underwriters or their counsel), (iii) all printing,
messenger and delivery expenses, and (iv) the reasonable fees and disbursements
of counsel for the Company and the Company=s independent public accountants.
7. ISSUE OF NOTES. This Note is one of a duly authorized issue of
notes of the Company, designated the Junior Secured Convertible Notes is limited
in aggregate principal amount of $4,000,000. The Notes have been offered and
sold pursuant to the Company=s Confidential Private Placement Memorandum dated
December 15, 1999. The obligations under this Note shall rank equally with all
other Notes of the same designation.
8. REQUIRED CONSENT. The Company may not modify any of the terms
of this Note except in accordance with the provisions of Section 8.
8.1 A meeting of Holders of the Notes may be called at
any time and from time to time to make, give or take any request, demand,
authorization, direction, notice, consent, waiver or other action provided by
the Notes to be made, given or taken by Holders of Notes or to modify, amend or
supplement the terms of the Notes as hereinafter provided. Notice of every
meeting of Holders of Notes, setting forth the time and the place of such
meeting and in general terms the action proposed to be taken at such meeting,
shall be given as provided for in the terms of the Notes, not less than ten (10)
nor more than sixty (60) days prior to the date fixed for the meeting. Such
meetings may be called at any time for any such purpose by the Company or by the
Holders of at least twenty-five (25%) percent in the aggregate principal amount
of the outstanding Notes. Upon receipt of any such request from Holders, the
Company shall call such meeting for such purposes by giving notice thereof.
To be entitled to vote at any meeting of Holders of Notes, a
person shall be a registered Holder of outstanding Notes or a person duly
appointed by an instrument in writing as proxy for such a Holder. The persons
entitled to vote more than fifty (50%) percent in principal amount of the
outstanding Notes shall constitute a quorum. The Company may make such
reasonable and customary regulations as it shall deem advisable for any meeting
of Holders of Notes with respect to the appointment of proxies in respect of
Holders of Notes, the record date for determining the registered owners of Notes
who are entitled to vote at such meeting (which date shall be set forth in the
notice calling such meeting hereinabove referred to and which shall be not less
than fifteen (15) nor more than sixty (60) days prior to such meeting), the
adjournment and chairmanship of such meeting, the appointment and duties of
inspectors of votes, the submission and examination of proxies, certificates and
other evidence of the right to vote, and such other matters concerning the
conduct of the meeting as it shall deem appropriate.
At any meeting of Holders of Notes duly called and held as
specified above, upon the affirmative vote, in person or by proxy thereunto duly
authorized in writing, of the Holders of not less than sixty-six and two-thirds
(66b%) percent in aggregate principal amount of outstanding Notes, or with the
written consent of the Registered Holders of not less than sixty-six and
two-thirds (66b%) percent in aggregate principal amount of outstanding Notes,
the Company may modify, amend or supplement the terms of the Notes in any way,
and the Holders of Notes may make, take or give any request, demand,
authorization, direction, notice, consent, waiver or other action provided by
the terms of the Notes to be made, given or taken by Holders of Notes; provided,
however, that no such action may, without the consent of Holders of Notes owning
eighty (80%) percent or more in the aggregate principal amount of outstanding
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Notes affected thereby, (a) change the due date for the payment of the principal
of or any installment of interest on any Note, (b) reduce the principal amount
of any Note, the portion of such principal amount which is payable upon
acceleration of the maturity of such Note or the interest rate thereon, (c)
change the coin or currency in which or the required places at which payment
with respect to interest or principal in respect of Notes is payable, or (d)
reduce the proportion of the principal amount of Notes, the vote or consent of
the Holders of which is necessary to modify, amend or supplement the terms and
conditions of the Notes or to make, take or give any request, demand,
authorization, direction, notice, consent, waiver or other' action provided
hereby or thereby to be made, taken or given.
Any instrument given by or on behalf of any Holder of a Note in
connection with any consent to or vote for any such modification, amendment,
supplement, request, demand, authorization, direction, notice, consent, waiver
or other action will be irrevocable once given and will be conclusive and
binding on all subsequent Holders of such Note or any Note issued directly or
indirectly in exchange or substitution therefor or in lieu thereof Any such
modification, amendment, supplement, request, demand, authorization, direction,
notice, consent, waiver or other action will be conclusive and binding on all
Holders of Notes, whether or not they have given such consent or cast such vote,
and whether or not notation of such modification, amendment, supplement,
request, demand, authorization, direction, notice, consent, waiver or other
action is made upon the Notes. Notice of any modification or amendment of,
supplement to, or request, demand, authorization, direction, notice, consent,
waiver or other action with respect to the Notes shall be given to each
registered Holder of Notes affected thereby, in all cases as provided herein.
Notes executed and delivered after the effectiveness of any such
modification, amendment, supplement, request, demand, authorization, direction,
notice, consent, waiver or other action shall bear a notation in the form
reasonably approved by the Company as to any matter provided for in such
modification, amendment, supplement, request, demand, authorization, direction,
notice, consent, waiver or other action. New Notes modified to conform to any
such modification, amendment, supplement, request, demand, authorization,
direction, notice, consent, waiver or other action may be prepared by the
Company and executed and delivered in exchange for outstanding Notes.
8.2 LOST DOCUMENTS. Upon receipt by the Company of
evidence satisfactory to it of the loss, theft, destruction or mutilation of
this Note or any Note exchanged for it, and (in the case of loss, theft or
destruction) of indemnity satisfactory to it, and upon reimbursement to the
Company of all reasonable expenses incidental thereto, and upon surrender and
cancellation of such Note, if mutilated, the Company will make and deliver in
lieu of such Note a new Note of like tenor and unpaid principal amount and dated
as of the original date of the Note.
8.3 BENEFIT. This Note shall be binding upon and inure to
the benefit of the parties hereto and their legal representatives, successors
and assigns.
8.4 NOTICES AND ADDRESSES. All notices, offers,
acceptances and any other acts under this Note (except payment) shall be in
writing, and shall be sufficiently given if delivered to the addressee in
person, by overnight courier service or similar receipted delivery, or, if
mailed, postage prepaid, by certified mail, return receipt requested, as
follows:
To Holder: To Holder's address listed on
the Subscription Agreement
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To the Company: Med/Waste, Inc.
0000 X.X. 000xx Xxxxxx, Xxxxx 000
Xxxxx Xxxxx, Xxxxxxx 00000
Attn: Xxxxxx Xxxxxx, President
or to such other address as any of them, by notice to the others may designate
from time to time. Time shall be counted to, or from, as the case may be, the
date of delivery in person, one (1) business day if delivered by overnight
courier or three (3) business days after mailing.
8.5 GOVERNING LAW. This Note and any dispute,
disagreement, or issue of construction or interpretation arising hereunder
whether relating to its execution, its validity, the obligations provided
therein or performance shall be governed and interpreted according to the
internal law of the State of Florida.
8.6 JURISDICTION AND VENUE. The Company (a) agrees that
any suit, action or proceeding arising out of or relating to this Note shall be
instituted exclusively in the Eleventh Judicial Circuit Court in and for
Miami-Dade County, Florida or in the United States District Court for the
Southern District of Florida; (b) waives any objection to the venue of any such
suit, action or proceeding and the right to assert that such forum is not a
convenient forum, and (c) irrevocably consents to the jurisdiction of the
Eleventh Judicial Circuit Court in and for Miami-Dade County, Florida, and the
United States District Court for the Southern District of Florida in any such
suit, action or proceeding, and the Company further agrees to accept and
acknowledge service of any and all process that may be served in any such suit,
action or proceeding in the Eleventh Judicial Circuit Court in and for
Miami-Dade County, Florida, or in the United States District Court for the
Southern District of Florida.
8.7 SECTION HEADINGS. Section headings herein have been
inserted for reference only and shall not be deemed to limit or otherwise
affect, in any matter, or be deemed to interpret in whole or in part any of the
terms or provisions of this Note.
8.8 SURVIVAL OF AGREEMENTS. The agreements contained
herein shall survive the delivery of this Note.
IN WITNESS WHEREOF, this Note has been executed and delivered on
the date specified above by the duly authorized representative of the Company.
MED/WASTE, INC.
By:/s/ XXXXXX XXXXXX
-------------------------------------------
Xxxxxx Xxxxxx
President and Chief Executive Officer
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NOTICE OF CONVERSION
(To Be Completed and Signed Only Upon Conversion of Note)
TO: MED/WASTE, INC.
6175 N.W. 000xx Xxxxxx
Xxxxx 000
Xxxxx Xxxxx, Xxxxxxx 00000
Attn: Xxxxxx Xxxxxx, President
The undersigned, the Holder of the attached Note, hereby
surrenders such Note for conversion of $_________ in principal amount thereof at
the Conversion Price in effect upon your receipt of the foregoing Note into
shares of the Common Stock of MED/WASTE, INC. and requests that a certificate
for such shares be issued to the undersigned Holder at the address indicated
below.
The undersigned hereby confirms to Med/Waste, Inc. the truth and
accuracy of the representations and warranties made by the undersigned in the
Subscription Agreement and accepted by the Company, as if such representations
and warranties were made on the date hereof.
Dated:
-------------------------- ------------------------------
Name of Entity, if any
------------------------------
Signature*
------------------------------
Title, if applicable
------------------------------
Print Name
------------------------------
Address
------------------------------
------------------------------
---------------------------
* Must conform in all respects to name of Xxxxxx as specified on the face
of the Note.
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ASSIGNMENT
(To be executed by the Holder to Effect a Transfer of the Attached Note)
FOR VALUE RECEIVED, the undersigned does hereby sell, assign and
transfer unto ________________________________________________, with an address
of ______________________________________________________________________, all
right, title and interest of the undersigned in the attached Note of Med/Waste,
Inc. ("Company") and does hereby authorize the Company to transfer such right on
the books of the Company.
Dated:
-------------------------- ------------------------------
Name of Entity, if any
------------------------------
Signature*
------------------------------
Title, if applicable
------------------------------
Print Name
------------------------------
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---------------------------
* Must conform in all respects to name of Xxxxxx as specified on the face
of the Note.
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THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED ("1933 ACT") OR ANY STATE SECURITIES
LAWS AND SHALL NOT BE SOLD, PLEDGED, HYPOTHECATED, DONATED, OR OTHERWISE
TRANSFERRED, WHETHER OR NOT FOR CONSIDERATION, BY THE HOLDER EXCEPT UPON
THE ISSUANCE TO THE COMPANY OF A FAVORABLE OPINION OF ITS COUNSEL OR THE
SUBMISSION TO THE COMPANY OF SUCH OTHER EVIDENCE AS MAY BE SATISFACTORY
TO COUNSEL FOR THE COMPANY, IN EITHER CASE, TO THE EFFECT THAT ANY SUCH
TRANSFER SHALL NOT BE IN VIOLATION OF THE 1933 ACT AND APPLICABLE STATE
SECURITIES LAWS.
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