Exhibit 4.4
MARCH MOTORS INTERNATIONAL, INC.
Series C 1998 10% Bridge Note
Serial No. _________ Dated: _______,1998
Principal Amount: $____________
MARCH MOTORS INTERNATIONAL, INC., a Minnesota corporation
(hereinafter "Maker"), for value received, hereby promises to pay to the order
of
at the address designated below, or to any registered transferee (hereinafter
"Noteholder), the principal sum of $_______________, on the earlier of (i) the
date which is within five (5) days of receipt of funds by Maker of its Initial
Public Offering (herein after referred to as an "IPO", defined as a registered
offering raising net proceeds to Maker of at least $4,000,000, which the Maker
intends to conduct but of which there is no assurance) proceeds, or (ii) the
date which is nine (9) months after the above-stated issuance date of this
Bridge Note, together with interest from the issuance date hereof until all
principal hereof is paid at the rate of Ten Percent (10) simple per annum, in
lawful money of the United States of America. Payment of all accrued interest
shall be made at the same time as the payment of principal hereof.
1. Description of Note. This note is a single bridge Note being issued
to Noteholder to evidence certain outstanding debt owed to Noteholder incident
to Noteholder's providing bridge and working capital financing to Maker, receipt
of all of which is hereby acknowledged.
2. Payment of Interest. Interest on this Bridge Note shall accrue from
the date of issuance hereof and shall be due in full upon the maturity of the
principal hereof.
3. Acceleration of Maturity. In the event of any bankruptcy,
liquidation, dissolution or other insolvency of Maker, then the Noteholder may
declare the entire principal and accrued interest due and payable immediately
without further notice, demand or presentment.
4. Status of Note. This Bridge Note is unsecured in all respects, and
this Note shall rank equally with all other unsecured debt of the Maker to the
extent such other unsecured debt is not superior by its terms in right of
payment to this Note, except that this Bridge Note shall be superior to any and
all Series A 1998 10% Bridge Notes now or hereafter issued by Maker.
5. Obligation of Maker. This Note shall constitute a binding obligation
of the Maker until satisfied in full. No director, officer, employee or personal
representative of Maker shall have any personal liability for any obligations of
Maker hereunder or for an claim whatsoever based on this Note.
6. Investment Intent of Noteholder. Noteholder hereof acknowledges and
represents that Noteholder has acquired this Note for investment and without a
view to any distribution, transfer or resale hereof within the meaning of the
Securities Act of 1933; and that no transfer of this Note shall be valid unless
made in compliance with appropriate securities laws restrictions set forth
hereon.
7. Covenants of Maker. The Maker hereof agrees that for so long as this
Note, or any portion thereof, is outstanding, the Maker will:
i. Maintain and preserve its corporate existence and all rights,
franchises, and other authority adequate for the conduct of its business;
maintain its properties, equipment, facilities and intellectual property in good
status, order and repair; and conduct its business in an orderly manner without
voluntary interruption.
ii. Maintain adequate insurance including public liability, property
damage, fire and other hazards in respect to the property and business of Maker,
with responsible insurance carriers.
iii. Pay and discharge, before becoming delinquent, all taxes,
assessments, and governmental charges upon or against the Maker of its
properties, and all its other material liabilities as they become due, except to
the extent and so long as any of such taxes, assessments, charges, or other
liabilities are being contested by Maker in good faith.
v. Promptly notify Noteholder in writing of any event of default
hereunder.
vi. Maker will not make any substantial change in the character of its
business.
vii. Maker shall not make any loans or advances to any person or entity
other than in the ordinary course of its business, nor shall the Maker guarantee
the obligations of any other party unless it is a subsidiary of Maker, nor shall
the Maker incur or assume any material mortgage, pledge, encumbrance or lien
against the property of Maker unless for a valid business purpose.
viii. Maker shall not liquidate, dissolve, merge, consolidate, or enter
into a material business combination with another entity unless in the normal
and ordinary course of business; nor shall Maker sell, lease, assign or transfer
any substantial part of its business or fixed assets or material intellectual
property; provided, however, that Maker shall have the authority to complete the
acquisition of assets from Norton Motorcycles Limited.
8. Event of Default. The following shall be a default on this Note:
(a) The Maker shall fail to make any payment of interest or principal
to the Noteholder when due under this Note, or
(b) An event specified in paragraph 3 of this Note has occurred, or
(c) Maker shall fail to perform and observe any of the covenants
contained herein and such default shall remain uncured for 30 days after written
notice thereof from Noteholder to Maker.
9. Transfer. This Note may not be sold, pledged or otherwise
transferred to any person Securities Act of 1933. Any transfer of this Bridge
Note shall be made only by other than an "accredited investor" as such term is
defined under Regulation D of the surrendering this Note duly endorsed to Maker
for cancellation, together with written instructions to Maker that a replacement
Note of like principal amount be issued to such qualified transferee(s).
10. Remedy on Default. In the event of any default hereunder, the
Noteholder hereof shall have the option to declare the principal amount hereof
plus any accrued interest hereon to be immediately due and payable upon written
notice by Noteholder to Maker without further notice, demand, presentment for
payment, notice of intention to accelerate or acceleration. The Maker hereby
guaranties payment of this Note and waives demand for payment, presentment for
payment, notice of non-payment, protest, notice of protest, notice of dishonor,
notice of acceleration of maturity, and any other such or similar notices. The
Maker further agrees to pay all costs and expenses of collection, including
reasonable attorney's fees, incurred by Noteholder in collecting any
indebtedness on this Note.
11. General. Noteholder shall not by any act, delay, omission or
otherwise be deemed to have waived any of Noteholder's rights or remedies
hereunder, and no waiver of any kind shall be valid unless in writing and signed
by Noteholder. This Note has been executed in the State of Minnesota and shall
be construed and governed by the laws of Minnesota. No modification or amendment
of the terms of this Note shall be effective unless made in writing assigned by
Maker and Noteholder. This Note shall be binding on Maker and any successors or
assigns, provided Maker shall not assign its obligations under this Note without
the required written consent of Note holder.
12. Notices. All demands and notices to be given hereunder shall be
delivered or mailed to Maker at 0000 Xxxxxxxxx Xxxxx, Xxxx Xxxxxxx, Xxxxxxxxx
00000 (or at such new substituted address notified to Noteholder by Maker); and
in the case of Noteholder to the address written below (or at such new
substituted address notified to Maker by Noteholder).
IN WITNESS WHEREOF, the Maker has caused this Bridge Note to be signed by its
duly authorized officer as of the aforesaid date of issuance.
MARCH MOTORS INTERNATIONAL, INC.
By_______________________________________
Xxxxxx Xxxxxxxxx, President
Restrictive Legend:
THIS NOTE HAS NOT BEEN REGISTERED UNDER EITHER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "ACT") OR ANY APPLICABLE BLUE SKY LAWS; AND ACCORDINGLY THIS NOTE
MAY NOT BE SOLD, OFFERED FOR SALE, OR TRANSFERRED IN THE ABSENCE OF AN EFFECTIVE
REGISTRATION UNDER THE ACT AND APPLICABLE BLUE SKY LAWS, OR SATISFYING THE
CONDITIONS OF AN EXEMPTION FROM SUCH REGISTRATION TO THE REASONABLE SATISFACTION
OF LEGAL COUNSEL OF THE MAKER.
Further Representation of Noteholder:
This Bridge Note is accompanied by a Stock Purchase Warrant of Maker, of a
3-year term, which grants Noteholder the right to purchase restricted common
shares of Maker at $3/share up to the original principal amount of this Note.
Noteholder hereby acknowledges and represents that any future exercises of such
Warrant by Noteholder (or any qualified transferee of Noteholder) will be
acquired for long-term investment with no intention at such time of exercise of
reselling, transfering, distributing to the public, or otherwise disposing of
such common shares; and Noteholder further represents and agrees that any common
stock to be issued to
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Noteholder incident to exercise of such Warrant shall be legended by Maker to
evidence such restricted status under relevant securities laws and regulations.
________________________________
Signature of Noteholder
________________________________
Printed or typed name of Noteholder
________________________________
Address of Noteholder
________________________________
City State ZIP
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MARCH MOTORS INTERNATIONAL, INC.
No._____________ Warrant Certificate Certificate for _________ Warrants
THIS CERTIFIES THAT
or registered assigns is the owner of the number of Warrants
specified above, of which each one entitles the holder thereof to
purchase one fully paid and nonassessable common share, subject to
adjustment as provided herein, no par value, of March Motors
International, Inc. a Minnesota corporation ("the Company") at any
time after the date hereof at a exercise price of $3.00 per share.
Each such Warrant may be exercised on nay business day before
the Expiration Date which is 3 years after the date of this
Warrant Certificate, and the holder hereof or any assigns, as the
case may be, here by acknowledges that the restricted common stock
to be issued underlying these Warrants shall constitute
"restricted securities" as defined under the Securities Act of
1933. The Company is under no obligation to register common shares
underlying these Warrants, and accordingly the holder hereof, or
any assigns, recognizes that any common stock purchased incident
to exercise of these Warrants will be purchased as a long-term
investment with no view toward transfer, resale, disposition, or
distribution to the public. Upon payment for any common shares
incident to exercise of these Warrants, all of such shares shall
be legally and validly issued and fully paid and nonassessable.
The Warrants represented hereby are exercisable upon presentation and
surrender of this Warrant Certificate, with the election to purchase duly
executed by the holder hereof in writing, at the corporate office of the
Company, and upon payment to the Company of the Warrant exercise price for the
shares of common stock purchasable upon such exercise in US Dollars in cash or
other immediately available funds, or upon surrender of obligations of the
Company having an unpaid principal balance equal to such exercise price.
These Warrants are exercisable at the election of the holder hereof
or any assigns either in whole or in part anytime and from time to time up to
the number of shares specified above. Such shares shall be deemed issued as of
the date of surrender of the Warrant Certificate and receipt by the Company of
the exercise price herein. In the event this Warrant Certificate is exercised in
respect to less than all of such shares, a new Warrant Certificate or
Certificates shall be issued on surrender hereof for the number of shares
represented by Warrants which have not yet been exercised. The Company shall not
be required to issue any fractional shares incident to any exercise of these
Warrants; rather any exercise hereof shall be rounded off to the nearest whole
common share of the Company.
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These Warrants are issued to the above-named holder incident to the
terms of a Bridge Note of the Company which is a single Note known as the
Company's Series C 1998 10% Bridge Note.
Prior to exercise of any Warrants represented hereby, the holder
hereof shall not be entitled to any rights of a stockholder of the Company,
including without limitation the right to vote or receive dividends or other
distributions.
The Purchase Price, the number of shares purchasable upon exercise
hereof, and the number of Warrants outstanding anytime during the term hereof
are subject to adjustment from time to time on the occurrence of any event such
as declarations of stock dividends, stock splits (forward or reverse),
reorganizations or mergers or other business combinations, reclassification of
shares, consolidation, or any other such event, so the Holder of any Warrant
exercised after such event or time shall be entitled to receive the number and
price of shares which, if such Warrant had been exercised immediately prior to
such event, such Holder would have owned. Such adjustment or adjustments shall
be made successively whenever such event shall occur.
This Warrant Certificate and these Warrants have not been registered
under any securities laws and cannot be transferred or sold in public market
transactions unless they have been registered under relevant federal and state
securities laws, or they satisfy an appropriate exemption from such
registration. This restriction on further transfer, sale or disposition of the
common shares underlying these Warrants shall be affixed by standard restrictive
legend on any certificates for common shares issued incident to exercise hereof.
Prior to presentment for transfer of any of there Warrants to the
Company or its transfer agent, as the case may be, the Company may deem and
treat the registered holder hereof as the absolute owner hereof and of each
Warrant for all purposes, and the Company shall not be affected by any notice to
the contrary.
This Warrant Certificate and each Warrant represented hereby shall
be construed and governed by the laws of the State of Minnesota.
EXECUTED duly by the Company on the day and year first stated
herein.
MARCH MOTORS INTERNATIONAL, INC.
By______________________________________
Xxxxxx Xxxxxxxxx, President
--------------------------------------------------------------
ASSIGNMENT FORM
(To Be Executed By The Registered Holder Hereof To Transfer Warrants)
FOR VALUE RECEIVED, the undersigned hereby sells, transfers and assigns
______________ of the Warrants represented by this Certificate to
_______________ and does hereby irrevocably constitute and appoint ____________
Attorney to transfer this Warrant Certificate on the records of the Company with
full power of substitution in the premises.
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Signature(s)________________________________
________________________________
________________________________
Dated:__________________
