THIS NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "ACT"), OR UNDER THE SECURITIES LAWS OF APPLICABLE STATES.
THIS NOTE IS SUBJECT TO RESTRICTIONS ON TRANSFERABILITY AND RESALE AND MAY
NOT BE TRANSFERRED OR RESOLD EXCEPT AS PERMITTED UNDER THE ACT AND THE
APPLICABLE STATE SECURITIES LAWS, PURSUANT TO REGISTRATION OR EXEMPTION
THEREFROM. INVESTORS SHOULD BE AWARE THAT THEY MAY BE REQUIRED TO BEAR THE
FINANCIAL RISKS OF THIS INVESTMENT FOR AN INDEFINITE PERIOD OF TIME. THE
ISSUER OF THIS NOTE MAY REQUIRE AN OPINION OF COUNSEL IN FORM AND SUBSTANCE
SATISFACTORY TO THE ISSUER TO THE EFFECT THAT ANY PROPOSED TRANSFER OR
RESALE IS IN COMPLIANCE WITH THE ACT AND ANY APPLICABLE STATE SECURITIES
LAWS.
PROMISSORY XXXX
OF
BLACK NICKEL ACQUISITION CORP II
Note No. 1
$ 8,000 Made as of April 27, 2007
Maturity Date October 27, 2007
For value received, the undersigned, BLACK, NICKEL ACQUISITION CORP II, a
Georgia corporation (the "COMPANY"), hereby promises to pay to the order
of Xxxxxx Xxxx (the "LENDER"), or its registered assigns, at the offices
of the Lender located at 0000 Xx Xxxxx, Xxxxxx, Xxxxxxxxxx 00000, or at
such other place as may be designated from time to time in writing by the
Lender, the principal sum of EIGHT THOUSAND DOLLARS ($8,000), or, if less,
the aggregate unpaid principal amount outstanding on this Note as of the
Maturity Date, together with interest on the unpaid principal balance at
an annual rate equal to 10%, computed on the basis of the actual number of
days elapsed and a year of 365 days from the date of this Note until the
principal amount and all interest accrued thereon and all other amounts
owed hereunder are paid. The unpaid Principal Xxxxxx, together with any
then unpaid accrued interest and all other amounts owed hereunder, shall
be due and payable on the earlier of (i) at the closing of a reverse
merger, share exchange or similar business combination (the "REVERSE
MERGER"), (ii) October 27, 2007 or (iii) an event of default as set forth
herein (in the case of (i), (ii) or (iii), the "MATURITY DATE") at the
principal offices of the Company or by mail to the address of the
registered holder of this Note in lawful money of the United States. The
following is a statement of the rights of Xxxxxx and the conditions to
which this Note is subject, and to which Holder hereof, by the acceptance
of this Note, agrees:
1. DEFINITIONS. The following definitions shall apply for all purposes of
this Note:
1.1 "CLOSING" means date on which the purchase and sale of the Note
occurs.
1.2 "COMPANY" means the "COMPANY" as defined above and includes any
corporation which shall succeed to or assume the obligations of the Company
under this Note.
1.3 "HOLDER" means any person who shall at the time be the
registered holder of this Note.
1.4 "NOTE" means this Promissory Note.
2. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company hereby
represents and warrants to Holder that the statements in the following
paragraphs of this Section 2 are all true and complete as of immediately prior
to the Closing:
2.1 ORGANIZATION, GOOD STANDING AND QUALIFICATION. The Company has
been duly incorporated and organized, and is validly existing in good standing,
under the laws of the State of Georgia. The Company has the corporate power and
authority to own and operate its properties and assets and to carry on its
business as currently conducted and as presently proposed to be conducted.
2.2 DUE AUTHORIZATION. All corporate action on the part of the
Company's directors and shareholders necessary for the authorization, execution,
delivery of, and the performance of all obligations of the Company under the
Note and the Note when executed and delivered, will constitute, a valid and
legally binding obligation of the Company, enforceable in accordance with its
terms, except as may be limited by (i) applicable bankruptcy, insolvency,
reorganization or other laws of general application relating to or affecting the
enforcement of creditor's rights generally and (ii) the effect of rules of law
governing the availability of equitable remedies.
2.3 NONCONTRAVENTION. Neither the execution and the delivery of the
Note, nor the consummation of the transactions contemplated hereby nor the sale
and issuance of the Shares, will (a) violate any injunction, judgment, order,
decree, ruling, charge, or other restriction of any government, governmental
agency, or court to which the Company is subject or any provision of its
Certificate of Incorporation or Bylaws, as amended, or (b) conflict with, result
in a breach of, constitute a default under, result in the acceleration of,
create in any party the right to accelerate, terminate, modify, or cancel, any
agreement, contract, lease, license, instrument, or other arrangement to which
the Company is a party or by which it is bound or to which any of its assets is
subject.
2.4 CORPORATE POWER. The Company has the corporate power and
authority to execute and deliver this Note to be purchased by the Holder
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hereunder, to issue the Note and to carry out and perform all its obligations
under the Note as well as to issue the Shares.
2.5 VALID ISSUANCE.
(a) The Note and the Shares, when issued, sold and delivered in
accordance with the terms of this Note for the consideration provided for
herein, will be duly and validly issued, fully paid and nonassessable.
(b) Based in part on the representations made by the Holder in
Section (b) hereof, the offer and sale of the Note and the Shares solely to the
Holder in accordance with the terms herein are exempt from the registration and
prospectus delivery requirements of the U.S. Securities Act of 1933, as amended
(the "1933 ACT") and the securities registration and qualification requirements
of the currently effective provisions of the securities laws of the states in
which the Holder is a resident based upon the address set forth herein.
(c) REPRESENTATIONS, WARRANTIES AND CERTAIN AGREEMENTS OF
HOLDER. Holder hereby represents and warrants to, and agrees with, the Company,
that:
2.6 AUTHORIZATION. This Note constitutes such Holder's valid and
legally binding obligation, enforceable in accordance with its terms except as
may be limited by (i) applicable bankruptcy, insolvency, reorganization or other
laws of general application relating to or affecting the enforcement of
creditors' rights generally and (ii) the effect of rules of law governing the
availability of equitable remedies. Holder represents that such Holder has full
power and authority to enter into this Note.
2.7 PURCHASE FOR OWN ACCOUNT. The Note and the Shares
(collectively, the "SECURITIES") will be acquired for investment for such
Xxxxxx's own account, not as a nominee or agent, and not with a view to the
public resale or distribution thereof within the meaning of the 1933 Act, and
such Holder has no present intention of selling, granting any participation in,
or otherwise distributing the same.
2.8 DISCLOSURE OF INFORMATION. Such Holder has received or has had
full access to all the information it considers necessary or appropriate to make
an informed investment decision with respect to the Securities. Such Holder
further has had an opportunity to ask questions and receive answers from the
Company regarding the terms and conditions of the offering of the Securities and
to obtain additional information (to the extent the Company possessed such
information or could acquire it without unreasonable effort or expense)
necessary to verify any information furnished to such Holder or to which such
Holder had access. The foregoing, however, does not in any way limit or modify
the representations and warranties made by the Company in Section 2.
2.9 INVESTMENT EXPERIENCE. Such Holder understands that the
purchase of the Securities involves substantial risk. Such Holder (i) has
experience as an investor in securities of companies in the development stage
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and acknowledges that such Holder is able to fend for itself, can bear the
economic risk of such Holder's investment in the Securities and has such
knowledge and experience in financial or business matters that such Holder is
capable of evaluating the merits and risks of this investment in the Securities
and protecting its own interests in connection with this investment and/or (ii)
has a preexisting personal or business relationship with the Company and certain
of its officers, directors or controlling persons of a nature and duration that
enables such Holder to be aware of the character, business acumen and financial
circumstances of such persons.
2.10 ACCREDITED INVESTOR STATUS. Such Holder is an "accredited
investor" within the meaning of Regulation D promulgated under the 1933 Act and
is able to bear the economic risk of holdings the Securities for an indefinite
period.
3. NO RIGHTS OR LIABILITIES AS STOCKHOLDER. This Note does not by itself
entitle the Holder to any voting rights or other rights as a stockholder of the
Company. No provisions of this Note, and no enumeration herein of the rights or
privileges of the Holder, shall cause the Holder to be a stockholder of the
Company for any purpose, other than the issuance to Holder of the Shares as
contemplated hereunder.
4. NO IMPAIRMENT. The Company will not, by amendment of its Certificate
of Incorporation or Bylaws, or through reorganization, consolidation, merger,
dissolution, issue or sale of securities, sale of assets or any other voluntary
action, willfully avoid or seek to avoid the observance or performance of any of
the terms of this Note, but will at all times in good faith assist in the
carrying out of all such terms and in the taking of all such action as may be
necessary or appropriate in order to protect the rights of the Holder under this
Note against wrongful impairment.
5. EVENTS OF DEFAULT. Each of the following events or occurrences shall
constitute an "Event of Default".
(a) NON-PAYMENT OF OBLIGATIONS. (i) the Company shall default
in the payment of any principal of the Note when due, or (ii) the Company shall
default (and such default shall continue unremedied for a period of three (3)
business days after demand for payment) in the payment when due of any interest
amount on the Note.
(b) BREACH OF WARRANTY. Any representation or warranty of the
Company made or deemed to be made hereunder in connection with this Note is or
shall be incorrect when made in any material respect.
(c) The Company shall fail to observe or perform any other
covenant, agreement or warranty contained in, or otherwise commits any material
breach of any of this Note.
(d) The Company or any of its active subsidiaries shall
commence, or there shall be commenced against the Company or any such active
subsidiary a case under any applicable bankruptcy or insolvency laws as now or
hereafter in effect or any successor thereto, or the Company commences any other
proceeding under any reorganization, arrangement, adjustment of debt, relief of
debtors, dissolution, insolvency or liquidation or similar law of any
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jurisdiction whether now or hereafter in effect relating to the Company or any
active subsidiary thereof or there is commenced against the Company or any
active subsidiary thereof any such bankruptcy, insolvency or other proceeding
which remains undismissed for a period of 60 days; or the Company or any active
subsidiary thereof is adjudicated insolvent or bankrupt; or any order of relief
or other order approving any such case or proceeding is entered; or the Company
or any active subsidiary thereof suffers any appointment of any custodian or the
like for it or any substantial part of its property which continues undischarged
or unstayed for a period of 60 days; or the Company or any active subsidiary
thereof makes a general assignment for the benefit of creditors; or the Company
shall fail to pay, or shall state that it is unable to pay, or shall be unable
to pay, its debts generally as they become due; or the Company or any active
subsidiary thereof shall call a meeting of its creditors with a view to
arranging a composition, adjustment or restructuring of its debts; or the
Company or any active subsidiary thereof shall by any act or failure to act
expressly indicate its consent to, approval of or acquiescence in any of the
foregoing; or any corporate or other action is taken by the Company or any
active subsidiary thereof for the purpose of effecting any of the foregoing;
(e) If any judgment (to the extent not covered by insurance)
and/or arbitration award (singly or in the aggregate outstanding at any one
time) in excess of Ten Thousand Dollars ($10,000) shall be rendered against the
Company and is not stayed or discharged within thirty (30) days of the date
thereof, or any stay with respect thereto shall lapse and such judgment or award
is not discharged and such stay is not reinstated within thirty (30) days.
Immediately upon the occurrence of an Event of Default, at Lender's
option, (i) the Maturity Date shall be deemed to have occurred automatically and
(ii) the entire principal amount of this Debenture then outstanding, all other
amounts payable by the Company hereunder shall automatically become and be due
and payable, without presentment, demand, protest or any notice of any kind, all
of which are hereby expressly waived by the Company, anything herein to the
contrary notwithstanding.
6. PREPAYMENT. The Company may at any time, without penalty, upon at
least five (5) days' advance written notice to the Holder, prepay in whole or in
part the unpaid balance of this Note. All payments will first be applied to the
repayment of accrued fees and expenses, then to accrued interest until all then
outstanding accrued interest has been paid, and then shall be applied to the
repayment of principal.
7. WAIVERS. The Company and all endorsers of this Note hereby waive
notice, presentment, protest and notice of dishonor.
8. ATTORNEYS' FEES. In the event any party is required to engage the
services of any attorneys for the purpose of enforcing this Note, or any
provision thereof, the prevailing party shall be entitled to recover its
reasonable expenses and costs in enforcing this Note, including attorneys' fees.
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9. TRANSFER. This Note may be assigned by Xxxxxx in its sole discretion
upon written notice to the Company, so long as Lender complies with applicable
securities laws and regulations. The rights and obligations of the Company and
the Holder under this Note shall be binding upon and benefit their respective
permitted successors, assigns, heirs, administrators and transferees. The
Company may not assign this Note.
10. GOVERNING LAW. This Note shall be governed by and construed under the
internal laws of the State of Georgia as applied to agreements among Georgia
residents entered into and to be performed entirely within Georgia, without
reference to principles of conflict of laws or choice of laws.
11. HEADINGS. The headings and captions used in this Note are used only
for convenience and are not to be considered in construing or interpreting this
Note. All references in this Note to sections and exhibits shall, unless
otherwise provided, refer to sections hereof and exhibits attached hereto, all
of which exhibits are incorporated herein by this reference.
12. NOTICES. All notices required or permitted hereunder, to be
effective, shall be in writing and shall be deemed effectively given: (a) upon
personal delivery to the party to be notified, (b) when sent by confirmed telex
or facsimile if sent during normal business hours of the recipient, if not, then
on the next business day, (c) five (5) days after having been sent by registered
or certified mail, return receipt requested, postage prepaid, or (d) one (1)
business day after deposit with a nationally recognized overnight courier,
specifying next day delivery, with written verification of receipt. All
communications shall be sent to the addresses provided as follows:
If to the The Company:
Black Nickel Acquisition Corp II
000 Xxxxxxxx Xxxxxx Xxxxxxx, Xxxxx 000
Xxxxxxx Xxxxxxx 00000
Attention: Xxxx X. Xxxxxxx, Xx. President
If to the Lender:
Xxxxxx Xxxx
0000 Xx Xxxxx Xxxx
Xxx Xxx, XX 00000
13. AMENDMENTS AND WAIVERS. Any term of this Note may be amended, and the
observance of any term of this Note may be waived (either generally or in a
particular instance and either retroactively or prospectively) only with the
written consent of the Company and the Holder. Any amendment or waiver effected
in accordance with this Section shall be binding upon the Holder, each future
holder of such securities, and the Company. This is the entire agreement between
the parties with respect to the subject matter hereof.
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14. SEVERABILITY. If one or more provisions of this Note are held to be
unenforceable under applicable law, such provision(s) shall be excluded from
this Note and the balance of the Note shall be interpreted as if such
provision(s) were so excluded and shall be enforceable in accordance with its
terms.
IN WITNESS WHEREOF, the Company has executed and delivered this Note as
a sealed instrument as of the day and year first written above.
BLACK NICKEL ACQUISITION CORP II
BY: /s/ Xxxx X. Xxxxxxx, Xx., President
--------------------------------------
Xxxx X. Xxxxxxx, Xx., President
AGREED AND ACKNOWLEDGED
XXXXXX XXXX (THE HOLDER)
------------------------
By: /s/ Xxxxxx Xxxx
--------------------
Name: Xxxxxx Xxxx
------------------
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