EXHIBIT 10.45
THIS NOTE (AND ANY SECURITIES ISSUED UPON CONVERSION OF THIS NOTE) OFFERED
HEREBY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR
THE SECURITIES LAWS OF CERTAIN STATES AND IS BEING OFFERED AND SOLD IN RELIANCE
ON EXEMPTIONS FROM THE REGISTRATION REQUIREMENTS OF SAID ACT AND SUCH LAWS. THIS
NOTE (AND ANY SECURITIES ISSUED UPON CONVERSION OF THIS NOTE) IS SUBJECT TO
RESTRICTIONS ON TRANSFERABILITY AND RESALE AND MAY NOT BE TRANSFERRED OR RESOLD
EXCEPT AS PERMITTED UNDER SAID ACT AND SUCH LAWS PURSUANT TO REGISTRATION OR
EXEMPTION THEREFROM. THIS NOTE (AND ANY SECURITIES ISSUED UPON CONVERSION OF
THIS NOTE) HAS NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND EXCHANGE
COMMISSION, ANY STATE SECURITIES COMMISSION OR ANY OTHER REGULATORY AUTHORITY,
NOR HAVE ANY OF THE FOREGOING AUTHORITIES PASSED UPON OR ENDORSED THE MERITS OF
THIS OFFERING OR THE ACCURACY OR ADEQUACY OF ANY OFFERING MEMORANDUM. ANY
REPRESENTATION TO THE CONTRARY IS UNLAWFUL.
10% MANDATORY CONVERTIBLE PROMISSORY NOTE
$__________ December _____, 2003
For value received XXXXXX XXXXXXX PROMOTIONS, INC., a Delaware corporation
("Payor" or the "Company") promises to pay to _____________, or its assigns
("Holder") the principal sum of $_________ with interest on the outstanding
principal amount at the rate of 10% per annum, compounded annually based on a
365-day year. Interest with respect to this promissory note (the "Note") shall
commence with the date hereof and shall continue on the outstanding principal
until paid in full. Principal and accrued interest shall be due one hundred
twenty (120) calendar days after the date hereof (the "Maturity Date").
1. All payments of interest and principal shall be in lawful money of the
United States of America. All payments shall be applied first to accrued
interest and thereafter to principal. All payments shall be made to the Holder
at the address set forth in the questionnaire to the Note and Warrant Purchase
Agreement (the "Note and Warrant Purchase Agreement") being entered into by the
Holder and Company of even date herewith.
2. In the event the principal amount of this Note, together with accrued
but unpaid interest, is not paid on or before the Maturity Date, the Company
shall have an additional thirty (30) calendar days in which to pay off the
principal and accrued but unpaid interest. In the event the principal amount of
this Note, together with accrued but unpaid interest, is not paid on or before
the one hundred fiftieth (150th) calendar day after the date hereof, the Holder
shall be required to convert the outstanding principal amount of this Note,
together with accrued but unpaid interest, into that number of shares of the
Company's common stock equal to the outstanding principal amount of this Note,
together with accrued but unpaid interest, divided by eighty-five percent (85%)
of the five day average closing bid price of the Company's common stock for the
five trading day period immediately preceding the one hundred fiftieth (150th)
calendar day after the date hereof, with a maximum conversion price of $0.50 per
share and a minimum conversion price of $0.30 per share.
In the event of a default, the Holder must send written notice to the
Company within ten (10) business days following the one hundred fiftieth (150th)
calendar day hereof, and the Company shall deliver the shares of common stock to
the Holder, per Holder's written instructions, within ten (10) calendar days of
receipt of the Holder's written notice. The common stock shall have piggyback
registration rights to be included in the next registration statement to be
filed by the Company.
Notwithstanding the foregoing, on the date hereof, there are not sufficient
shares of common stock of the Company reserved to issue such shares of common
stock of the Company if this Note was converted on the date hereof. If such
number of shares of common stock of the Company are for any reason whatsoever
still not available to be issued by the Company at the time of such event, the
Company shall so issue such shares of common stock as soon as practicable.
3. This Note shall be governed by and construed in accordance with the laws
of the State of New York relating to contracts entered into and to be performed
wholly within such State. Each party hereto hereby irrevocably submits to the
jurisdiction of any Xxx Xxxx Xxxxx xxxxx xx Xxxxxx Xxxxxx Federal court sitting
in New York County over any action or proceeding arising out of or relating to
this Note or any agreement contemplated hereby, and each party hereby
irrevocably agrees that all claims in respect of such action or proceeding may
be heard and determined in such New York State or Federal court. Each party
hereto further waives any objection to venue in such State and any objection to
an action or proceeding in such State on the basis of a non-convenient forum.
The Purchaser further agrees that any action or proceeding brought against the
Company shall be brought only in New York State or United States Federal courts
sitting in New York County. EACH PARTY HERETO AGREES TO WAIVE ITS RIGHTS TO A
JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF THIS
AGREEMENT OR ANY DOCUMENT OR AGREEMENT CONTEMPLATED HEREBY.
4. Any notices or other communications required or permitted to be
given under the terms of this Note must be in writing and will be deemed to have
been delivered (a) upon receipt, when delivered personally; (b) upon receipt,
when sent by facsimile (provided confirmation of transmission is mechanically or
electronically generated and kept on file by the sending party); or (c) one (1)
day after deposit with a nationally recognized overnight delivery service, in
each case properly addressed to the party to receive the same. The addresses and
facsimile numbers for such communications shall be:
If to the Company: Attention: Xxx XxXxxxxxx, Xxxxxx Xxxxxxx Promotions, Inc.
1414 Avenue of the Americas, Xxxxx 0000, Xxx Xxxx, Xxx Xxxx 00000 (tel)
000-000-0000, (fax) 000-000-0000.
If to Holder: at the address set forth on the questionnaire to the Note and
Warrant Purchase Agreement being entered into by the Holder and Company of even
date herewith
5. Payor hereby waives demand, notice, presentment, protest and notice of
dishonor.
6. The terms of this Note shall be construed in accordance with the laws of
the State of New York, as applied to contracts entered into by New York
residents within the State of New York, which contracts are to be performed
entirely within the State of New York.
7. Any term of this Note may be amended or waived with the written consent
of Payor and Holder and is subject to the provisions set forth in the Note and
Warrant Purchase Agreement, including, without limitation, the provisions
concerning transfer of this Note by the Holder. The Payor may prepay all or any
part of the principal sum of this Note at any time or from time to time without
penalty at its sole discretion, provided that such principal prepayment shall be
accompanied by all interest then accrued.
XXXXXX XXXXXXX PROMOTIONS, INC.
By:
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Xxxxxx Xxxxxxx, President
