Contract
EXHIBIT 10.4
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
NETLIVE COMMUNICATIONS INC. IS RECEIVED THAT REGISTRATION IS NOT REQUIRED UNDER
SUCH 1933 ACT OR SUCH STATE SECURITIES LAWS.
ATLANTIC
WINE AGENCIES, INC.
USD
$400,000
Atlantic
Wine Agencies, Inc.,
a Florida corporation (the "Company"), for value received, hereby promises
to
pay to the order of Xxxxxxxxx Properties S.A., a BVI corporation (the "Payee")
the principal sum of approximately USD$400,000 (“Principal”) (or such lesser
principal amount as may then be outstanding). The exact amount of the Principal
shall be calculated on January 31, 2008 and shall be based on the currency
exchange of South African Rand and U.S. Dollars on that date.
Provided
that no Event of Default
occurs (as defined below) and the Company has complied with the terms of this
Note in all respects, the Company shall pay the Payee the Principal no later
than January 11, 2009. Additionally, if the Company and the Payee
mutually agree in writing, this Note shall be extended for an additional one
year period on the same or amended terms as agreed to by the parties
hereto.
If
the Company shall fail to make a
payment of Principal when due; 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 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 shall be and become immediately due and payable.
Payments
of Principal are to be made in
lawful money of the Republic of South Africa 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.
(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 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 Payee,
to:
Sapphire Developments Limited, Attention: Xxxxx Xxxxxxxxxx, 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 Florida. This Note shall be deemed a
contract made under the laws of the State of Florida and the validity of this
Note and all rights and liabilities hereunder shall be determined under the
laws
of said State.
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.
3.8. Upon
request of the Payee, any and all outstanding principle pursuant to this note
may be converted to shares of the Company’s common stock. In the
event Payee so chooses to convert this note to shares, the Company shall
calculate the number of shares due to Payee based on the fair market value
of
the Company’s common stock on the date payment is due.
IN
WITNESS WHEREOF, Atlantic
Wine Agencies, Inc. has caused this Note to be executed in its corporate name
by
an appropriate officer of the Company.
Dated:
As
of January 11, 2008
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ATLANTIC
WINE AGENCIES, INC.
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By: /s/ Xxxx
Xxxxxxxxxxx
Name: Xxxx Xxxxxxxxxxx
Position:
President
