EXHIBIT "A" to SUBSCRIPTION AGREEMENT
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THIS NOTE IS NONNEGOTIABLE AND, AS SUCH, IS NON-TRANSFERABLE. IT HAS NOT BEEN
REGISTERED UNDER THE SECURITIES LAWS OF THE UNITED STATES OF AMERICA OR ANY
STATE THEREOF. THIS NOTE HAS BEEN ACQUIRED FOR INVESTMENT PURPOSES ONLY AND,
EVEN IF SUBSEQUENTLY AMENDED TO BE NEGOTIABLE, NO INTEREST IN THIS NOTE MAY BE
OFFERED FOR SALE, SOLD, DELIVERED AFTER SALE, TRANSFERRED, PLEDGED, OR
HYPOTHECATED IN THE ABSENCE OF REGISTRATION AND QUALIFICATION OF THIS NOTE UNDER
APPLICABLE FEDERAL AND STATE SECURITIES LAWS OR AN OPINION OF COUNSEL OF THE
PAYEE REASONABLY SATISFACTORY TO THE PAYOR THAT SUCH REGISTRATION AND
QUALIFICATION ARE NOT REQUIRED.
XXXXXXXXXXXX.XXX, INC.
NON-NEGOTIABLE 9% PROMISSORY NOTE
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$1,363,975.00 As of February 8, 2000
FOR VALUE RECEIVED, the undersigned, XXXXXXXXXXXX.XXX, INC., a Florida
corporation (the "Payor"), having its executive office and principal place of
business at 0000 X. Xxxxxxx Xxxxxxx, Xxxxx 000, Xxxx Xxxxx, XX 00000, hereby
promises to pay to MONAVIA LIMITED, a corporation organized and legally existing
under the laws of the Isle of Man (the "Payee"), having an address at
Xxxxxxxxxxxxx Xxxxx, Xxxxxx Xxxx, Xxxxxxxx Road, Xxxxxxx, British Isles 1M24RB,
on or before February 7, 2003 (the "Maturity Date"), at the Payee's address set
forth hereinabove or, at such other place as the Payee shall hereafter specify
in writing, the principal sum of One Million Three Hundred Sixty-three Thousand
Nine Hundred and Seventy-five and No/100 Dollars ($1,363,975) Dollars, in
currency of the United States of America as at the time shall be legal tender
for the payment of public and private debts.
1. Interest and Payment.
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1.1 The unpaid principal amount hereof shall bear interest
from the date hereof at the rate of nine percent (9%) per annum until the
Maturity Date (or until any such earlier date of payment if this Note is
prepaid).
1.2 Interest shall accrue and be payable on a quarterly basis
beginning June 30, 2000 and shall continue until the Maturity Date (or on any
such earlier date of payment if this Note is prepaid or converted into shares of
the Payee's common stock as hereinafter provided).
2. Prepayment. At the option of the Payor, this Note may be prepaid in
whole or in part from time to time, without penalty or premium. Each partial
prepayment of this Note shall first be applied to interest accrued through the
date of prepayment and then to principal. Prior to any such prepayment, the
Payor will mail a notice of such prepayment to the Payee no less than 15 and no
more than 30 days prior to the date fixed for such prepayment.
3. Covenants of the Payor. The Payor covenants and agrees that, so long
as this Note remains outstanding and unpaid, in whole or in part, the Payor:
3.1 Shall not sell, transfer or in any other manner alienate
or dispose of a material part of its assets; provided, however, that the Payor
may effect such a transaction if the transaction is a bona-fide transaction in
which fair market value is received and no Event of Default or any condition or
event which, with notice or lapse of time or both, would become an Event of
Default has occurred or would occur after giving effect to such transaction;
3.2 Shall not make any loans to any person who is or becomes a
shareholder of the Payor, other than for reasonable advances for
expenses in the ordinary course of business;
3.3 Shall promptly pay and discharge all lawful taxes,
assessments and governmental charges or levies imposed upon the Payor
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; provided, however, that the
Payor 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 Payor
shall set aside on its books adequate reserves with respect to any such
tax, assessment, charge, levy or claim so contested;
3.4 Shall 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 laws applicable to the Payor
as interpreted by its counsel;
3.5 Shall keep adequately insured by financially sound
reputable insurers, all property of a character usually insured by
similar corporations and carry such other insurance as is usually
carried by similar corporations;
3.6 Shall promptly upon the occurrence of a condition or event
which is, to the best knowledge and belief of the Payor's President, an
Event of Default or of any condition or event which, with notice or
lapse of time or both, would constitute, to the best knowledge and
belief of the Payor's President, an Event of Default, furnish a
statement of the Payor and of the Payor's President to the Payee
setting forth the details of such Event of Default or condition or
event and the action which the Payor intends to take with respect
thereto; and
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3.7 Shall, at all times, keep its books, records and accounts
true and correct in all material ways.
4. Events of Default. If any of the following conditions, events or
acts shall occur:
4.1 The dissolution of the Payor or any successful vote in
favor thereof by the Board of Directors and shareholders of the Payor;
or
4.2 The Payor's insolvency, assignment for the benefit of
creditors, application for or appointment of a receiver, filing of a
voluntary petition under any provision of the Federal Bankruptcy Code
or amendments thereto or any other federal or state statute affording
relief to debtors; or there shall be commenced against the Payor any
such proceeding or filed against the Payor any such application or
petition which proceeding, application or petition is not dismissed or
withdrawn within thirty (30) days of commencement or filing as the case
may be; or
4.3 The failure by the Payor to make any payment of any amount
of principal on, or accrued interest under this Note, as and when the
same shall become due and payable and the continuance of such failure
for a period of thirty (30) days after written notice thereof is given
to Payor; or
4.4 The admission in writing of the Payor's inability to pay
its debts as they mature; or
4.5 The sale by the Payor of all or substantially all of its
assets; or the merger or consolidation by the Payor with or into
another corporation which results in any change in the ownership of the
shares of the resulting entity when compared to that of the Payor
immediately prior to such merger or consolidation; or
4.6 The commencement of a proceeding to foreclose the security
interest or lien in any property or assets to satisfy the security
interest or lien therein of any secured creditor of the Payor whose
debt is in excess of fifty thousand dollars ($50,000) provided that
such action is not dismissed within thirty (30) days after Payor
receives notice thereof; or
4.7 The entry of a final judgment for the payment of money in
excess of fifty thousand dollars ($50,000) by a court of competent
jurisdiction against the Payor, which judgment the Payor shall not
discharge (or provide for such discharge) in accordance with its terms
within thirty (30) days of the date of entry thereof, or procure a stay
of execution thereof within thirty (30) days from the date of entry
thereof and, within such thirty (30) day period, or such longer period
during which execution of such judgment shall have been stayed, appeal
therefrom and cause the execution thereof to be stayed during such
appeal; or
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4.8 Any attachment or levy, or the issuance of any note of
eviction against the assets or properties of the Payor involving an
amount in excess of fifty thousand dollars ($50,000) which attachment,
levy or issuance is not dismissed, bonded, or otherwise terminated
within thirty (30) days of the effectiveness of such attachment, levy
or issuance; or
4.9 The default in the due observance or performance of any
covenant, condition or agreement on the part of the Payor to be
observed or performed pursuant to the terms hereof and such default
shall continue uncured for thirty (30) days after written notice
thereof, specifying such default, shall have been given to the Payor by
the holder of this Note, then, in any such event and at any time
thereafter while such Event of Default is continuing, the Payee shall
have the right to declare an event of default hereunder ("Event of
Default"), provided that, upon the occurrence of an event described in
Subsections 6.1 or 6.2, such event shall be deemed to be an Event of
Default hereunder whether or not the Payor makes such a declaration (an
"Automatic Default"), and the indebtedness evidenced by this Note shall
immediately upon such declaration or Automatic Default become due and
payable, both as to principal and interest, without presentment,
demand, protest or other notice of any kind, all of which are hereby
expressly waived, notwithstanding anything contained herein to the
contrary.
5. Suits for Enforcement and Remedies. If any one or more defaults
shall occur and be continuing, the Payee may proceed to protect and enforce
Payee's rights either by suit in equity or by action at law, or both, whether
for the specific performance of any covenant, condition or agreement contained
in this Note or in any applicable agreement or document referred to herein or in
aid of the exercise of any power granted in this Note or in any agreement or
document referred to herein, or proceed to enforce the payment of this Note or
to enforce any other legal or equitable right of the holder of this Note. No
right or remedy herein or in any other agreement or instrument conferred upon
the holder of this Note is intended to be exclusive of any other right or
remedy, and each and every such right or remedy shall be cumulative and shall be
in addition to every other right and remedy given hereunder or now or hereafter
existing at law or in equity or by statute or otherwise.
6. Unconditional Fees; Waivers; Other.
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6.1 The obligations to make the payments provided for in this
Note are absolute and unconditional and not subject to any defense,
set-off, counterclaim, rescission, recoupment or adjustment whatsoever.
6.2 If the Payee shall institute any action to enforce the
collection of any amount of principal of and/or interest on this Note,
there shall be immediately due and payable from the Payor, in addition
to the then unpaid sum of this Note, all reasonable costs and expenses
incurred by the Payee in connection therewith, including, without
limitation, reasonable attorneys' fees and disbursements.
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6.3 No forbearance, indulgence, delay or failsafe to exercise
any right or remedy with respect to this Note shall operate as a
waiver, nor as an acquiescence in any default, nor shall any single or
partial exercise of any right or remedy preclude any other of further
exercise thereof or the exercise of any other right or remedy.
6.4 This Note may not be modified or discharged except by a
writing duly executed by the Payor and the Payee.
6.5 The Payor hereby expressly waives demand and presentment
for payment, notice of nonpayment, notice of dishonor, protest, notice
of protest, bringing of suit, and diligence in taking any action to
collect amounts called for hereunder, and shall be directly and
primarily liable for the payment of all sums owing and to be owing
hereon, regardless of and without any notice (other than as expressly
provided for herein), diligence, act or omission with respect to the
collection of any amount called for hereunder or in connection with any
right, lien, interest or property at any and all times which the Payee
had or is existing as security for any amount called for hereunder.
6.6 The Payor shall bear all of its expenses, including,
without limitation, attorneys' fees incurred in connection with the
preparation of this Note.
7. RESTRICTION ON TRANSFER. THIS NOTE IS NONNEGOTIABLE AND, AS SUCH, IS
NON-TRANSFERABLE. THIS NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES LAWS OF
THE UNITED STATES OF AMERICA OR ANY STATE THEREOF. THIS NOTE HAS BEEN ACQUIRED
FOR INVESTMENT PURPOSES ONLY AND, EVEN IF SUBSEQUENTLY AMENDED TO BE NEGOTIABLE,
NO INTEREST IN THIS NOTE MAY BE OFFERED FOR SALE, SOLD, DELIVERED AFTER SALE,
TRANSFERRED, PLEDGED, OR HYPOTHECATED IN THE ABSENCE OF REGISTRATION AND
QUALIFICATION OF SUCH SALE UNDER APPLICABLE FEDERAL AND STATE SECURITIES LAWS OR
AN OPINION OF COUNSEL OF THE PAYEE REASONABLY SATISFACTORY TO THE PAYOR THAT
SUCH REGISTRATION AND QUALIFICATION ARE NOT REQUIRED.
8. Investment Representations.
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8.1 The Payee has been provided with access to all information
deemed to be relevant by the Payor in connection with this debt
financing and concerning the Payor and the proposed operations of the
Payor for the purpose of making an informed investment decision as to
the purchase of the Note subscribed for hereby.
8.2 The Payee is a corporation organized and legally existing
under the laws of the Isle of Man is an accredited investor as defined
in Rule 501(a) of Regulation D of the Securities Act of 1933 (the
"Act").
8.3 The Payee acknowledges that the offer and sale of the Note
is being made without the use of a Private Placement Memorandum. The
Payee understands and has
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evaluated the merits and risks of an investment in the Payor and the
purchase of the Note. The Payee acknowledges that (i) the purchase of
the Note is a speculative investment and involves a high degree of
risk; (ii) no Federal or State agency has made any finding or
determination as to the fairness of such investment or any
recommendation or endorsement of it; (iii) there is not and will not be
in the foreseeable future a market for the sale of the Note by the
Payee, and (iv) the operations of the Payor are dependent on the
Payor's ability to generate substantial income or to secure additional
financing, and there can be no assurance that such income will be
generated and there are no existing arrangements with respect to such
financing being available and no assurance that it will become
available.
8.4 The Payee is able to bear the economic risk of an
investment in the Payee and the purchase of the Note in that, among
other factors, such Payee can afford to hold Note for an indefinite
period and can afford a complete loss of the investment in the Payee.
8.5 The Payee is relying solely on the financial and tax
advice of his own advisor(s) with respect to an investment in the Payee
and the purchase of the Note.
8.6 The Payee is acquiring the Note for his own account as
principal and not with a view to resale or distribution.
8.7 All documents, records and books pertaining to the sale of
the Note or the existing or projected operations of the Payor have been
made available for inspection to the Payee, and the books and records
of the Payor will be available upon reasonable notice, for inspection
by Payee during reasonable business hours at its principal place of
business.
8.8 The Payee has not authorized any broker, dealer, agent or
finder to act on his behalf, nor has any knowledge of any broker,
dealer, agent or finder purporting to act on his behalf, with respect
to this transaction.
9. Miscellaneous.
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9.1 The headings of the various paragraphs of this Note are
for convenience of reference only and shall in no way modify any of the
terms or provisions of this Note.
9.2 All notices required or permitted to be given hereunder
shall be in writing and shall be deemed to have been duly given when
personally delivered or sent by registered or certified mail, return
receipt requested, postage prepaid, to the address of the intended
recipient set forth in the preamble to this Note or at such other
address as the intended recipient shall have hereafter given to the
other party hereto pursuant to the provisions hereof.
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9.3 This Note and the obligations of the Payor and the rights
of the Payee shall be governed by and construed in accordance with the
laws of the State of Florida with respect to contracts made and to be
fully performed therein.
9.4 The Payor (a) agrees that any legal suit, action or
proceeding arising out of or relating to this Note will be instituted
exclusively in the courts of Broward County, Florida, or in the United
States District Court for the Southern District of Florida, each and
any of which shall apply Florida law, (b) waives any objection which
the Payor may have now or hereafter to the venue of any such suit,
action or proceeding, and (c) irrevocably consents to the jurisdiction
of the said Courts in any such suit, action or proceeding. The Payor
further agrees to accept and acknowledge service of any and an process
which may be served in any such suit, action or proceeding in the said
Courts and agrees that service of process upon the Payor mailed by
certified mail to the Payor's address will be deemed in every respect
effective service of process upon the Payor, in any such suit, action
or proceeding.
9.5 This Note shall bind the Payor and its successors and
assigns.
9.6 The Payee has the right to cancel and rescind this
transaction provided that written notice of such determination is
delivered to the Payor within three (3) days of the date the Note is
delivered to the Payee.
[Signature page follows.]
XXXXXXXXXXXX.XXX, INC.
By: /s/ Xxxxx X. Xxxxxxxxx
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Authorized Signatory
Accepted and agreed to this 8th day of
February, 2000.
MONAVIA LIMITED
By: /s/ Xxxxx Xxxxxxxxx
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Authorized Signatory
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