PROMISSORY NOTE CANCELLATION AND REISSUANCE AGREEMENT
Exhibit
4.3
THIS
PROMISSORY NOTE CANCELLATION AND REISSUANCE AGREEMENT (“Agreement”) is made and
entered into as of February 28, 2005 (the “Effective Date”), by and between
Padova International, Inc., a Nevada corporation (“Maker”), and Xxxxxx
Xxxxxxx,
an
individual residing at ________________, California (“Holder”).
RECITALS
A. On
the
terms and conditions set forth herein, (i) Maker and Holder (the “Parties”)
agree to cancel that certain promissory note between Maker and Holder dated
_____,____ bearing interest at two percent (2%) monthly (a copy of which is
attached as Exhibit A) (the “Original Note”); (ii) Maker will issue Holder a new
interest bearing promissory note (the “New Note”) (a copy of which is attached
as Exhibit B); and (iii) Holder will convert the accrued but unpaid interest
owed under the Original Note (the “Unpaid Interest”) to Maker’s common stock,
par value $.001 per share at a price of $.25 per share.
B. This
Agreement, together with Exhibits A and B, each of which are attached hereto
and
incorporated herein by this reference, and any additional exhibits, schedules,
or attachments as set forth herein, are referred to collectively herein as
the
“PCRA”.
AGREEMENT
1. CANCELLATION
OF ORIGINAL NOTE AND RELEASE. Subject to the terms and conditions set forth
herein, Holder agrees to deliver to Maker at Closing (defined below) the
Original Note marked across its face "CANCELLED" and upon such delivery thereby
shall forever release and discharge Maker of any and all of its obligations
under the Note, including any obligation to pay principal and interest, except
as set forth in this Agreement.
2. ISSUANCE
OF NEW NOTE. Subject to the terms and conditions set forth herein, Maker agrees
to deliver to Holder at Closing (defined below) the New Note and upon such
delivery thereby shall be obligated to pay the principal of the New Note on
the
terms of the New Note.
3. CONVERSION
OF UNPAID INTEREST TO EQUITY. Holder hereby agrees to convert his accrued but
unpaid interest owed under the Original Note to the Maker’s common stock at a
conversion price of $.25 per share for every one dollar ($1.00) of Unpaid
Interest owed to the Holder. The Parties agree that the amount of Unpaid
Interest due for purposes of this Agreement is Thirty Nine Thousand Dollars
($39,000.00).
4. PAYMENT
IN FULL SATISFACTION AND DISCHARGE OF NOTE. Upon Closing, Maker agrees to
deliver to Holder the following consideration (“Conversion Payment”). One
Hundred and Fifty Six Thousand (156,000) shares of Common Stock of Padova
International USA, Inc., par value $.001 per share (the “Shares”), representing
$39,000.00 of Unpaid Interest at a conversion rate of $.25 per share. The Shares
shall bear the following restrictive legend:
ALL
SHARES OF CAPITAL STOCK ISSUABLE THEREUNDER, HAVE NOT BEEN REGISTERED UNDER
THE
UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (“THE SECURITIES ACT”), OR ANY
STATE SECURITIES LAWS, AND MAY NOT BE SOLD, OFFERED FOR SALE, PLEDGED,
HYPOTHECATED OR OTHERWISE DISTRIBUTED IN THE ABSENCE OF AN EFFECTIVE
REGISTRATION STATEMENT FILED UNDER THE SECURITIES ACT AND ANY APPLICABLE STATE
SECURITIES LAWS OR EXEMPTIONS THEREFROM, SUCH EXEMPTIONNS, AT THE OPTION OF
THE
COMPANY, TO BE EVIDENCED BY AN OPINION OR COUNSEL SATISFACTORY TO THE COMPANY.
5. CLOSING;
CLOSING DATE. The closing of the transactions contemplated hereby shall be
effective as of the delivery date of the closing deliveries described below
(“Closing”) at the offices of Padova International USA, Inc. at 10:00 a.m. on
February 28, 2005, or at such time and place as the Parties mutually agree
(“Closing Date”).
| a. |
Holder
shall deliver to Maker the Original Note marked across the face
“Cancelled” (incorporated by reference herein as Exhibit A); and
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b. Maker
shall deliver to Holder the New Note (attached hereto as Exhibit B); and
c. Maker
shall deliver to Holder a stock issuance letter for the Shares.
6. WAIVERS.
No action taken pursuant to this Agreement, including any investigation by
or on
behalf of any party will be deemed to constitute a waiver by the party taking
such action, or compliance with any representation, warranty, covenant or
agreement contained herein. The waiver by any party hereto of a breach of any
provision of this Agreement shall not operate or be construed as a waiver of
any
subsequent breach. The waiver by any party hereto at or before the Closing
Date
of any condition to its obligations hereunder which is not fulfilled shall
preclude such party from seeking redress from the other party hereto for breach
of any representations, warranty, covenant or agreement contained in this
Agreement.
7. RELEASES.
a. The
Holder jointly and severally hereby forever release, discharge, acquit and
forgive from any and all claims, actions, suits, demands, agreements, and each
of them, if more than one, liabilities, judgments, and proceedings both at
law
and in equity arising from the beginning of time to the date of these presents
and as more particularly related to or arriving from the issuance and subsequent
cancellation of the Original Note and the non-payment of Unpaid Interest in
cash. In regard to the Original Note, the Parties, and each of them, agree
to
and do hereby waive and relinquish all rights and benefits afforded under the
provisions of Section1542 of the Civil Code of the State of California, which
provides as follows:
"A
general release does not extend to claims which the creditor does not know
or
suspect to exist in his favor at the time of executing the release, which if
known by him must have materially affected his settlement with the
debtor."
b. If
the
Holder has instituted any legal proceedings against the Maker settled by this
release, the Holder covenants to have them dismissed at the Holder's cost with
express prejudice to bringing further proceedings against the Maker arising
out
of the same matter.
c. The
Holder also covenants not to make any claim or institute any proceedings against
any person who might claim over against or claim contribution or indemnity
from
the Maker in connection with any matter for which this release is
given.
d. The
Holder also acknowledges that the Maker does not admit liability to the Holder
in connection with any matter for which this release is given.
e. This
release shall be binding upon and inure to the benefit of the parties, their
successors, assigns and personal representatives.
f. This
release applies only to the foregoing, and no other debt, obligation, agreement
or liability by and between the parties, which, if existing, shall survive
this
release.
8. BINDING
EFFECT: BENEFITS. This Agreement shall inure to the benefit of the Parties
hereto and shall be binding upon the parties hereto and their respective
successors and assigns, heirs and legal representatives. Except as otherwise
set
forth herein, nothing in this Agreement, express or implied, is intended to
confer on any person other than the parties hereto or their respective
successors and assigns any rights, remedies, obligations, or liabilities under
of by reason of this Agreement.
9. GOVERNING
LAW; JURISDICTION; VENUE; REMEDIES; INDEPENDENT LEGAL COUNSEL. This Agreement
shall be interpreted and construed as to both validity and performance and
enforced in accordance with and governed by the laws of the State of California,
without giving effect to the choice of law principles thereof. The Parties
agree
that any action hereunder will be held exclusively in the courts in the State
of
California. The Parties acknowledge that remedies at law, including monetary
damages, may be inadequate to remedy a breach of certain material terms herein,
including Holder's delivery of the Note, and the Parties agree that equitable
remedies may be necessary to enforce such terms and covenants, including
specific performance. Holder and Maker acknowledge that the terms of this
Agreement have been negotiated by the Parties hereto and each of them has had
a
full opportunity to receive independent business, tax and legal counsel with
respect to this Agreement and the transactions contemplated herein.
10. COUNTERPARTS.
This Agreement may be executed in counterpart originals, each of which shall
constitute an executed original and together shall constitute a fully-executed
document.
11.
NOTICES.
All notices, requests, demands, and other communications under this Agreement
shall be in writing and shall be deemed to have been duly given on the date
of
service if served personally on the party to whom notice is to be given, or
within 72 hours after mailing, if mailed to the party to whom notice is to
be
given, by first-class mail, registered or certified, postage prepaid, and
properly addressed to the party at the address set forth below, or any other
address that a party may designate by written notice to the others.
Maker: Holder:
Padova
International USA,
Inc.
________________
0000
Xxxxxx Xxx Xxx, Xxxxx 000 ________________
Xxx
Xxxxxxxx, XX
00000
________________
Phone:
000-000-0000
Phone:
Fax:
000-000-0000 Fax:
Attn:
Xxxxxx
Xxxxxxx
Attn:
Copy
to: Xxxx
X.
Xxxxxxx
000-000-0000
Exhibits:
Exhibit
A: Original
Promissory Note
Exhibit
B: New
Promissory Note
IN
WITNESS WHEREOF, the parties have executed and delivered the PCRA for all
purposes as of the Effective Date.
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Maker:
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Holder:
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By:
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By:
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Signature
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Signature
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Name:
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Name:
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Print
or Type Name
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Print
or Type Name
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EXHIBIT
A
The
Original Note
EXHIBIT
B
The
New Note
PAYMENT
IN KIND PROMISSORY NOTE
$100,000.00
February
28, 0000
Xxx
Xxxxxxxx, Xxxxxxxxxx
FOR
VALUE
RECEIVED, the undersigned, Padova International USA, Inc., a Nevada corporation
("Maker"), hereby promise to pay, to Xxxxxx
Xxxxxxx,
or order
("Payee"), the principal sum of
One
Hundred Thousand Dollars ($100,000.00), with interest on the unpaid principal
at
the rate of two percent (2%) per annum until February 28, 2006 (“due date”).
Principal and interest shall be payable as follows: Interest only shall be
paid
annually; at Payee’s option, either in Maker’s common stock or cash until the
due date, at which time the remaining outstanding balance of the principal,
any
accrued but unpaid interest and all other sums hereunder shall be payable in
full.
If
Payee
elects for Maker to make an interest payment in its common stock, Maker shall
calculate the amount of interest due on the anniversary of the date of this
Note
and convert such amount into the Maker’s common stock at a conversion price of
price of $.25 per share for every one dollar ($1.00) of Interest owed to the
Holder. If not so paid and at the option of Holder, or its assigns, all
principal and interest shall become immediately due and payable.
If
not so
paid and at the option of Holder, or its assigns, all principal and interest
shall become immediately due and payable.
Interest
shall be computed on the basis of a 365-day year and actual days lapsed. Maker
shall have the privilege of prepaying the principal under this Note in whole
or
in part, without penalty or premium at any time. All payments hereunder shall
be
applied first to interest, then to principal.
Maker
shall pay upon demand any and all expenses, including reasonable attorney fees,
incurred or paid by Holder of this Note without suit or action in attempting
to
collect funds due under this Note. In the event an action is instituted to
enforce or interpret any of the terms of this Note, including but not limited
to
any action or participation by Maker in, or in connection with, a case or
proceeding under the Bankruptcy Code or any successor statute, the prevailing
party shall be entitled to recover all expenses reasonably incurred at, before
and after trial and on appeal or review, whether or not taxable as costs,
including, without limitation, attorney fees, witness fees (expert and
otherwise), deposition costs, copying charges and other expenses.
This
Note
is executed in connection with the transaction set out in that certain
Promissory Note Cancellation and Re-issuance Agreement of even date, by and
among the Maker and Holder and is subject to the terms thereof.
All
parties to this Note hereby waive presentment, dishonor, notice of dishonor,
and
protest. All parties hereto consent to, and Holder is hereby expressly
authorized to make, without notice, any and all renewals, extensions,
modifications, or waivers of the time for or the terms of payment of any sum
or
sums due hereunder, or under any documents or instruments relating to or
securing this Note, or of the performance of any covenants, conditions or
agreements hereof or thereof or the taking or release of collateral securing
this Note. Any such action taken by Holder shall not discharge the liability
of
any party to this Note.
This
Note
has been executed and delivered in the State of California and shall be governed
and construed in accordance with the laws of the State of
California.
Padova
International USA, Inc.
A
Nevada
corporation
____________________________________________
By:
Its:
