EXHIBIT 10.16
THIS NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED
(THE "ACT"), OR UNDER ANY APPLICABLE STATE OR FEDERAL SECURITIES LAW. NO OFFER,
SALE, TRANSFER, PLEDGE, HYPOTHECATION OR OTHER DISPOSITION OF THIS NOTE MAY BE
MADE WITHOUT THE PRIOR WRITTEN CONSENT OF THE MAKER OF THIS NOTE, AND, IF SUCH
CONSENT IS GIVEN, UNLESS THE NOTE IS REGISTERED UNDER THE ACT AND ANY OTHER
APPLICABLE SECURITIES LAW,OR AN EXEMPTION FROM ANY SUCH REGISTRATION
REQUIREMENTS IS APPLICABLE TO SUCH TRANSACTION. THE PAYMENTS TO BE MADE UNDER
THIS NOTE ARE SUBJECT TO ANY COUNTERCLAIM, ANY RIGHT OF SET-OFF, ANY RIGHT OF
RECOUPMENT OR ANY OTHER CLAIM THAT THE MAKER OF THIS NOTE MAY HAVE AGAINST ANY
HOLDER OR ANY PRIOR HOLDER OF THIS NOTE, WHENEVER ARISING.
NON-NEGOTIABLE
PROMISSORY NOTE
Amount: $89,640 Date: August 8, 1997
1. General. FOR VALUE RECEIVED, Xxxxxxx X. Xxxxxx ("Maker") promises to
pay to the order of DA INTERNATIONAL, INC. ("Payee"), at 00000 X.X. Xxxxxxx,
Xxxxx 000 Xxxxxxx, Xxxxx 00000, or at such other place as may be designated in
writing by Payee, the principal sum of Eighty Nine Thousand Six Hundred Forty
Dollars ($89,640) (the "Principal Amount") in a single payment on the earlier to
occur of (a) the closing of a public offering of the Payee's shares of common
stock, (b) the closing of a transaction for the sale of substantially all of
Payee's assets to an independent third party, or (c) June 30, 2001. Interest on
the outstanding Principal Amount shall accrue at a rate per annum equal to the
Prime Rate (as defined below) plus 0.25%, in arrears, and shall be payable on or
before the first day of each calendar quarter beginning on October 1, 1997. As
used in this Note, "Prime Rate" shall mean, for each calendar quarter, the prime
rate of interest as listed in The Wall Street Journal for the first business day
of such calendar quarter. Notwithstanding anything to the contrary contained in
this Note, the effective rate of interest under this Note shall not exceed the
lesser of ten percent (10%) or the maximum rate of interest permitted from time
to time by applicable law or regulation. Amounts received by Payee in excess of
such highest rate of interest shall be considered reductions to principal to the
extent of such excess.
2. Prepayment. This Note may be prepaid in full or in part without
premium or penalty. Any such prepayments shall first be applied against accrued
interest and thereafter against any unpaid Principal Amount.
3. Default. In the event of a default in payment of principal or
interest under this Note, the entire outstanding principal amount of this Note,
plus interest thereon, will become immediately due and payable upon written
demand by Payee. A "default in payment" is defined as any payment required to be
made under this Note that is not made within fifteen (15) days of the due date,
which payment remains unpaid for fifteen (15) days after Maker's receipt of
written notice from Payee thereof. Maker hereby waives presentment, protest,
notice of protest, and notice of dishonor.
4. Binding Effect. This Note shall be binding upon and inure to the
benefit of each of the parties to this Note and their respective heirs, personal
representatives, and successors and permitted assigns; provided, that Payee may
not assign or otherwise negotiate this Note without Maker's prior written
consent, which consent shall not be unreasonably withheld. This Note shall be
governed by the laws of the State of Texas without giving effect to the choice
of law rules of Texas or any other jurisdiction.
IN WITNESS WHEREOF, Maker has caused this Note to be executed on the
date first above written.
By: /s/ Xxxxxxx X. Xxxxxx
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Xxxxxxx X. Xxxxxx
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