Exhibit 10.8
NON-RECOURSE
PROMISSORY NOTE
$_______________ Philadelphia, Pennsylvania
FOR VALUE RECEIVED, ________________________ ("Maker") hereby promises
to pay to the order of IMAGEMAX, INC. ("Payee") the principal sum of
________________________________ ($____________) in lawful money of the United
States of America. No interest shall accrue or be payable under this Note.
(a) The principle amount of this Note shall be due and payable upon the
earliest to occur of (i) ON DEMAND made at any time after the second anniversary
of the date of this Note; (ii) the closing of an arms-length merger transaction
involving Payee and an unrelated third party and in which Payee is not the
surviving entity; (iii) the closing of a sale of all of the issued and
outstanding Common Stock of Payee; or (iv) the distribution to Payee's
shareholders of the proceeds from the sale of all or substantially all of
Payee's assets, provided that, in the case of (ii)-(iv), Payee has given Maker
at least ten (10) days advance written notice describing the event causing this
Note to become payable.
(b) IF MAKER SHALL FAIL TO PAY THE FULL PRINCIPAL AMOUNT OF THIS NOTE
WHEN DUE, PAYEE'S SOLE RECOURSE SHALL BE THE EXERCISE OF ITS RIGHTS UNDER THE
CERTAIN PLEDGE AGREEMENT ENTERED INTO BY THE PARTIES HERETO ON THE DATE FIRST
WRITTEN ABOVE (THE "PLEDGE AGREEMENT"). PAYEE SHALL HAVE NO OTHER RECOURSE
AGAINST MAKER OR ANY OTHER ASSETS OF MAKER.
(c) All payments with regard to this Note shall be made in lawful money
of the United States of America in immediately available funds at Payee's office
at 000 Xxxxxxxxxxxx Xxxxxx, Xxxxx 000, Xxxx Xxxxxxxxxx, Xxxxxxxxxxxx 00000 or at
such other place as Payee shall designate in writing.
(d) Event of Default. Each of the following shall constitute an Event
of Default:
(i) Payment. Failure by Maker (A) to make any payment hereunder
within ten (10) days of written demand by Xxxxx under paragraph (a)(i) or (B) to
make any payment hereunder concurrently with an event described in paragraph
(a)(ii), (iii) or (iv).
(ii) Voluntary Bankruptcy. Filing by Maker of a voluntary petition
in bankruptcy or a voluntary petition or any answer seeking reorganization,
arrangement, readjustment of his debts or for any other relief under the
Bankruptcy Code, or under any other existing or future federal or state
insolvency act or law, or any formal written consent to, approval of, or
acquiescence in, any such petition or proceeding by Maker; the application by
Maker for, or the appointment by consent or acquiescence of, a receiver or
trustee of, Maker or for all or a substantial part of his property; or the
making by Maker of an assignment for the benefit to creditors.
(iii) Involuntary Bankruptcy. Filing of any involuntary petition
against Maker in bankruptcy or seeking reorganization, arrangement or
readjustment of his debts or for any other relief under the Bankruptcy Code, or
under any other existing or future federal or state insolvency act or law; or
the involuntary appointment of a receiver or trustee of Maker, or for all or a
substantial part of the property of Maker; and the continuance of any of such
events for a period of sixty (60) days undismissed, unbonded or undischarged.
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(e) Upon the occurrence of an Event of Default described in paragraph
(d)(i) above, then, and in such event, Payee may declare this Note to be due and
payable, whereupon the entire unpaid balance shall become immediately due and
payable without presentment, demand, protest or other notice of any kind, all of
which are hereby expressly waived, anything herein to the contrary
notwithstanding. Notwithstanding the foregoing, upon an Event of Default
described in paragraph (d)(i)(B), the rights and remedies of the Payee pursuant
to the Pledge Agreement may be exercised immediately and without notice to
Maker. Upon the occurrence of an Event of Default described in paragraphs
(d)(ii)-(iii), then, and upon such event, the entire unpaid balance shall
automatically become due and payable, without presentment, demand, protest or
other notice of any kind, all of which are hereby expressly waived, anything
herein to the contrary notwithstanding.
(f) UPON THE OCCURRENCE OF AN EVENT OF DEFAULT, THE SOLE RECOURSE OF
PAYEE SHALL BE THAT PROVIDED FOR IN THE PLEDGE AGREEMENT.
(g) Maker hereby waives and releases all errors, defects and
imperfections in any proceedings instituted by Xxxxx under the terms of this
Note as well as all benefit that might accrue to Maker by virtue of any present
or future laws that may diminish the Payee's ability to exercise its rights
under the Pledge Agreement. MAKER HEREBY WAIVES MAKER'S RIGHT TO A TRIAL BY JURY
IN ANY PROCEEDINGS ARISING FROM THIS NOTE.
(h) Maker and all endorsers, sureties and guarantors hereby jointly and
severally waive presentment for payment, demand, notice of demand, protest and
notice of protest of this Note, and all other notices in connection with the
delivery, acceptance, performance, default, or enforcement of the payment of
this Note, and they agree that the liability of each of them shall be
unconditional, without regard to the liability of any other party, and shall not
be affected in any manner by an indulgence, extension of time, renewal, waiver
or modification granted. Maker and all endorsers, sureties and guarantors hereby
jointly and severally consent to any and all extensions of time, renewals and
waivers, of the payment or other provisions of this Note, and to the release of
the collateral or any part thereof, with or without substitution, and agree that
additional makers, endorsers, guarantors, or sureties may become parties hereto
without notice to them and without affecting their liability hereunder.
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(i) Payee shall not be deemed, by an act of omission or commission, to
have waived any of its rights or remedies hereunder unless such waiver is in
writing and signed by Xxxxx, and then only to the extent specifically set forth
in the writing. A waiver on one event shall not be construed as continuing or as
a bar to or waiver of any right or remedy to a subsequent event.
(j) This instrument shall be governed by and construed according to the
laws of the Commonwealth of Pennsylvania without reference to its principles of
conflicts of law.
(k) Whenever used herein the singular number shall include the plural,
the plural the singular, the use of any gender shall be applicable to all
genders, and the words "Payee" and "Maker" shall be deemed to include the
respective successors and assigns and heirs and legal representatives of Payee
and Maker.
(l) Any provision contained in this Note which is prohibited or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective
to the extent of such prohibition or unenforceability, without invalidating the
remaining provisions hereof and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction.
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IN WITNESS WHEREOF, Maker, intending to be legally bound hereby, has
executed and delivered this Note effective as of the day and year first above
written.
Witness: MAKER
By:
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