EXHIBIT 4.5
THIS NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED
(THE "1933 ACT") AND THE SECURITIES LAWS OF ANY STATE. THE NOTE HAS BEEN
ACQUIRED FOR INVESTMENT PURPOSES ONLY AND NOT WITH A VIEW TO DISTRIBUTION OR
RESALE, AND MAY NOT BE SOLD, ASSIGNED, MADE SUBJECT TO A SECURITY INTEREST,
PLEDGED, HYPOTHECATED, TRANSFERRED OR OTHERWISE DISPOSED OF UNLESS AND UNTIL
REGISTERED UNDER THE 1933 ACT, OR AN OPINION OF COUNSEL SATISFACTORY TO NORDIC
EQUITY PARTNERS CORP. IS RECEIVED THAT REGISTRATION IS NOT REQUIRED UNDER SUCH
1933 ACT OR SUCH STATE SECURITIES LAWS.
NORDIC EQUITY PARTNERS CORP.
10% REDEEMABLE PROMISSORY NOTE
NEPC - Note 1 $95,000
NORDIC EQUITY PARTNERS CORP., a Delaware corporation (the "Company"),
for value received, hereby promises to pay to the order of
_______________________________________ (the "Payee"), at
__________________________________, on the earlier of (i) eighteen (18) months
from the date hereof, and (ii) at the closing of the Company's initial public
offering (the "Public Offering"), of its securities resulting in the receipt by
the Company of gross proceeds of no less than $5,805,000, as set forth in the
Letter of Intent (the "Letter of Intent") dated April 30, 1996 by and between
the Company and Xxxxx Xxxx & Co., Inc. ("Xxxxx Xxxx"), the principal sum of
NINETY FIVE THOUSAND ($95,000) DOLLARS (or such lesser principal amount as may
then be outstanding), together with all accrued unpaid interest (computed on the
basis of a 360-day year of twelve 30-day months) on the unpaid balance at the
rate of 10% per annum from the date hereof; provided, however, that,
notwithstanding anything to the contrary provided herein or elsewhere, in the
event the Company does not consummate the Public Offering by January 30, 1997
(the "January 30, 1997 Redemption Date"), the Company shall have the right, in
its sole discretion, at any time or from time to time on or after such date, to
redeem this Note (together with 10,000 shares of Common Stock of the Company
being purchased simultaneously by the Payee in a private offering on the date
hereof) at an aggregate redemption price equal to the principal amount then
remaining outstanding on this Note. The January 30, 1997 Redemption Date may be
extended for up to an additional three (3) months (to April 30, 1997) upon the
mutual written consent of the Company and the Payee provided the Company and
Xxxxx Xxxx have proceeded in good faith towards the consummation of the Public
Offering, at which time the redemption right shall be reinstated automatically.
Notwithstanding the foregoing, the principal amount of the Note may be prepaid
by the Company, in whole or in part, without premium or penalty, at any time.
Upon any prepayment of this Note, all accrued but unpaid interest on the
principal amount being prepaid shall be paid to the holder on the date of
prepayment. All payments hereunder shall be applied first to interest then to
principal.
This Note is one of a series of Notes included in units (the "Units")
of the Company's securities being offered by the Company through Xxxxx Xxxx
acting as placement agent in a private placement (the "Offering") pursuant to a
Confidential Private Placement Memorandum dated July 17, 1996. Each Unit
consists of (i) a $95,000 Note, and (ii) 10,000 shares of Common Stock of the
Company, and is being offered at a purchase price of $100,000 per Unit. The
Offering is on a "best efforts five (5) Unit minimum ($500,000)-ten (10) Unit
($1,000,000) maximum" basis.
If the Company shall fail to make a payment of principal or interest
when due and such non-payment shall continue for a period of thirty (30) days
after notice by no more than 51% of the Noteholders to the Company; or shall
make an assignment for the benefit of creditors, file a petition in bankruptcy,
be adjudicated insolvent or bankrupt, suffer an order for relief under any
federal bankruptcy law, petition or apply to any tribunal for the appointment of
a custodian, receiver or any trustee for the Company or any substantial part of
its assets, or shall commence any proceeding under any bankruptcy,
reorganization, arrangement, readjustment of debt, dissolution or liquidation
law or statute of any jurisdiction, whether now or hereafter in effect; or if
there shall have been filed any such petition or application, or any such
proceeding shall have been commenced against the Company, which remains
undismissed for a period of thirty (30) days or more; or if the Company, by any
act or omission shall indicate consent to, approval of or acquiescence in any
such petition, application or proceeding or the appointment of, a custodian,
receiver or any trustee for all or any substantial part of its properties, or if
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the Company shall suffer such custodianship, receivership, or trusteeship to
continue undischarged for a period of thirty (30) days or more, or the Company
violates any term or provision of this Note and same remains uncured for a
period of 30 days after written notice thereof by any holder of this Note, then
and in any such event (each such event, an "Event of Default"), the outstanding
principal amount of this Note, together with all accrued and unpaid interest
thereon, shall be and become immediately due and payable.
All payments hereunder (including, without limitation, payments of
principal and interest) are and shall be expressly subordinated in right of
payment to all current and future indebtedness of the Company, and to all
extensions, amendments, deferrals, refinancings or renewals thereof.
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Payments of principal, premium, if any, and interest are to be made in
lawful money of the United States of America at the principal office of the
Company.
1. RESTRICTIONS ON TRANSFER.
The holder acknowledges that he has been advised by the
Company that this Note has not been registered under the Securities Act of 1933,
as amended (the "Securities Act"), that the Note is being issued, on the basis
of the statutory exemption provided by Section 4(2) of the Securities Act
relating to transactions by an issuer not involving any public offering, and
that the Company's reliance upon this statutory exemption is based in part upon
the representations made by the holder in the holder's Subscription Agreement.
The holder acknowledges that he has been informed by the Company of, or is
otherwise familiar with, the nature of the limitations imposed by the Securities
Act and the rules and regulations thereunder on the transfer of securities. In
particular, the holder agrees that no sale, assignment, hypothecation or
transfer of the Note shall be valid or effective, and the Company shall not be
required to give any effect to any such sale, assignment, hypothecation,
transfer or other disposition, unless (i) the sale, assignment, hypothecation,
transfer or other disposition of the Note is registered under the Securities
Act, provided, that the Company has no obligation or intention to so register
the Note in connection herewith, or (ii) the Note is sold, assigned,
hypothecated, transferred or otherwise disposed of in accordance with all the
requirements and limitations of Rule 144 under the Securities Act, or such sale,
assignment, or transfer is otherwise exempt from registration under the
Securities Act.
2. COVENANTS OF COMPANY.
a. The Company covenants and agrees that, so long as this Note
shall be outstanding, it will:
(i) Promptly pay and discharge all lawful taxes,
assessments and governmental charges or levies imposed upon the Company or upon
its income and profits, or upon any of its property, before the same shall
become in default, as well as all lawful claims for labor, materials and
supplies which, if unpaid, might become a lien or charge upon such properties or
any part thereof, except where the failure to so pay would not have a material
effect on the Company; provided, however, that the Company shall not be required
to pay and discharge any such tax, assessment, charge, levy or claim so long as
the validity thereof shall be contested in good faith by appropriate
proceedings, and the Company shall set aside on its books adequate reserves with
respect to any such tax, assessment, charge, levy or claim so contested.
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(ii) Do or cause to be done all things necessary to
preserve and keep in full force and effect its corporate existence, rights and
franchises and comply with all material laws applicable to the Company as its
counsel may advise;
(iii) At all times keep true and correct books,
records and accounts.
3. MISCELLANEOUS.
3.l. All the covenants and agreements made by the holder of
this Note and the Company in this Note shall bind their respective successors
and assigns.
3.2. No recourse shall be had for the payment of the
principal, interest or premium, if any, on this Note or for any claim based
hereon or otherwise in any manner in respect hereof, against any incorporator,
stockholder, officer or director, past, present or future, of the Company or of
any predecessor corporation, whether by virtue of any constitutional provision
or statute or rule of law, or by the enforcement of any assessment or penalty or
in any other manner, all such liability being expressly waived and released by
the acceptance hereof and as part of the consideration for the issue hereof.
3.3. No course of dealing between the Company and the holder
hereof shall operate as a waiver of any right of any holder hereof, and no delay
on the part of the holder in exercising any right hereunder shall so operate.
Any such waiver must be in writing and signed by the holder hereof and the
Company.
3.4. This Note may be amended only by a written instrument
executed by the Company and the holder hereof.
3.5. All communications provided for herein shall be sent,
except as may be otherwise specifically provided, by registered or certified
mail: if to the holder of this Note, to the address shown on the books of the
Company; and if to the Company, to: Nordic Equity Partners Corp., 000 Xxxx
Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxx Xxxxxxxxx, or to
such other address as the Company may advise the holder of this Note in writing.
Notices shall be deemed given three days after it is mailed.
3.6. The provisions of this Note shall in all respects be
construed according to, and the rights and liabilities of the parties hereto
shall in all respects be governed by, the laws of the State of New York. This
Note shall be deemed a contract made under the laws of the State of New York and
the validity of this Note and all rights and liabilities hereunder shall be
determined under the laws of said State.
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3.7. The headings of the Sections of this Note are inserted
for convenience only and shall not be deemed to constitute a part of this Note.
IN WITNESS WHEREOF, NORDIC EQUITY PARTNERS CORP. has caused
this Note to be executed in its corporate name by an appropriate
officer of the Company.
Dated: July ____, 1996
NORDIC EQUITY PARTNERS CORP.
By:_______________________________
Name:
Position:
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