EXHIBIT 4.1
THIS NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED
(THE "ACT"), OR ANY STATE SECURITIES OR BLUE SKY LAWS AND MAY NOT BE OFFERED,
SOLD, TRANSFERRED, HYPOTHECATED OR OTHERWISE ASSIGNED EXCEPT AS PROVIDED HEREIN
AND (1) PURSUANT TO A REGISTRATION STATEMENT WITH RESPECT TO SUCH SECURITIES
WHICH IS EFFECTIVE UNDER THE ACT OR (2) PURSUANT TO AN AVAILABLE EXEMPTION FROM
REGISTRATION UNDER THE ACT AND UNDER APPLICABLE STATE SECURITIES AND BLUE SKY
LAWS RELATING TO THE DISPOSITION OF SECURITIES, PROVIDED THAT AN OPINION OF
COUNSEL TO SUCH EFFECT IS PROVIDED TO THE COMPANY IN CONNECTION THEREWITH.
PROMISSORY NOTE
$_______________ October ___, 2004
FOR VALUE RECEIVED, LION, Inc., a Washington corporation ("LION"),
promises to pay to _________________________ ("Holder"), at Xxxxxx's office at
_________________________ or at such other address as Holder may from time to
time designate in writing, the principal sum of _______________________ Dollars
($_______________) together with interest from the date of this Promissory Note
(this "Note") until October ___, 2007 ("Maturity") on the principal balance from
time to time remaining unpaid hereon at the rate of eight percent (8.0%) per
annum compounded annually. Interest shall be computed based on the basis of a
365 day year for the actual number of days elapsed.
1. PAYMENT OF PRINCIPAL AND INTEREST. Interest on this Note will be
payable in arrears on October __ of each calendar year, with the first such
payment payable on October __, 2005. No payments of principal on this Note shall
be due and payable until Maturity, at which time all then unpaid principal and
interest shall be due and payable. All payments on this Note shall be first
applied against interest and shall be made and are expressed in United States
dollars.
2. PREPAYMENT. LION shall have the right to prepay any or all of the
outstanding balance of this Note at any time and from time to time without
penalty or premium of any kind.
3. EVENTS OF DEFAULT. Each of the following shall constitute an Event
of Default ("Event of Default") hereunder:
a. Failure of LION to make any payment of principal or interest
upon this Note when due and such failure or refusal shall continue for ten (10)
days; or
b. Filing by LION of a voluntary petition in bankruptcy or filing
by LION of any petition or answer seeking or acquiescing in any reorganization,
arrangement, composition, readjustment, liquidation, or similar relief for
itself under any present or future federal, state or other statute, law or
regulation relating to bankruptcy, insolvency or other relief for debtors, or
the seeking, consenting to, or acquiescing by LION in the appointment of any
trustee, receiver,
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custodian, conservator or liquidator for LION, or the making by LION of any
general assignment for the benefit of creditors;
c. Filing of a petition against LION seeking any reorganization,
arrangement, composition, readjustment, liquidation, or similar relief under any
present or future federal, state or other law or regulation relating to
bankruptcy, insolvency or other relief for debts, or the appointment of any
trustee, receiver, custodian, conservator or liquidator of LION, unless such
petition shall be dismissed within sixty (60) days after such filing, but in any
event prior to the entry of an order, judgment or decree approving such
petition;
d. The occurrence of an Event of Default, as defined in the
Secured Notes Agreement, dated as of the date hereof, by and among LION, Holder
and the other parties named therein;
e. If there is a default in any agreement between LION and a third
party that gives the third party the right to accelerate any indebtedness
exceeding $100,000; or
f. If there (i) occurs a material adverse change in the business,
operations, prospects or condition (financial or otherwise) of LION, or (ii) is
a material impairment of the Company's ability to perform its obligations under
this Note.
4. ACCELERATION. Upon [(a)] the occurrence of any Event of Default [or
(b) LION's termination of Holder's employment without "cause" (as defined in the
Employment and Non-Competition Agreement between Holder and LION dated October
___, 2004)], Holder shall have the option in writing to declare the entire
amount of principal and interest due under this Note immediately due and
payable, and Holder may exercise any of its rights under this Note.
5. [RIGHT OF OFFSET. Reference is made to the Agreement of Merger (the
"Merger Agreement"), dated as of October __, 2004 between LION, LION Acq. LLC,
Xxxxxx Risk Management Services, Inc., and certain stockholders thereof. In the
event that, either by agreement of Holder and LION, or by a decision of a court
of competent jurisdiction, Xxxxxx is found responsible under the indemnification
provisions of Article 9 of the Merger Agreement for a Loss (as that term is
defined in the Merger Agreement) the LION Indemnified Parties (as that term is
defined in the Merger Agreement) shall have the right to have satisfied any such
amount owing by Holder in respect of such indemnification obligations by setting
off such amount against amounts due and owing by LION to Holder under this Note.
The withholding of all or any portion of the principal or interest due under
this Note pursuant to the terms of Article 9 of the Merger Agreement shall not
be deemed a default under this Note and shall not be the basis for any claim of
acceleration hereunder.] [THIS PROVISION TO BE INCLUDED ONLY IN NOTES ISSUABLE
TO XXXXXXXXXX AND XXXXXX]
6. EXPENSES. In the event suit or action is instituted to enforce or
interpret this Note, the prevailing party shall be entitled to recover all
reasonable expenses, including, without limitation, reasonable attorneys' fees
and expenses.
7. GOVERNING LAW; VENUE. This Note shall be governed and construed in
accordance with the laws of the State of Washington. Each party hereby
irrevocably submits to the non-exclusive jurisdiction of the courts located in
the State of Washington, King County, and the
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federal courts sitting in King County, State of Washington, over any action or
proceeding arising out of or relating to this Note, and waives any claim that
such proceedings have been brought in an inconvenient forum.
8. WAIVER AND CONSENT. LION and all sureties, endorsers, guarantors and
other parties now or hereafter liable for the payment of this Note, in whole or
in part, hereby severally (i) waive demand, notice of demand, presentment for
payment, notice of nonpayment, notice of default, protest, notice of protest,
notice of intent to accelerate, notice of acceleration and all other notices
(except as provided in Section 3), and further waive diligence in collecting
this Note or in enforcing any of the security for this Note; (ii) agree to the
release of any party primarily or secondarily liable for the payment of this
Note; (iii) agree that Holder shall not be required to first institute suit or
exhaust its remedies hereon against LION or others liable or to become liable
for the payment of this Note; and (iv) consent to any extension of time for the
payment of this Note, or any installment hereof, made by agreement by Holder
with any person now or hereafter liable for the payment of this Note, even if
LION is not a party to such agreement.
9. GENERAL PROVISIONS. LION may not assign its obligations under this
Note without the written consent of Xxxxxx. Holder may assign, pledge or
otherwise transfer this Note upon advance written notice to LION. The rights and
obligations of LION and Holder shall be binding upon and shall inure to the
benefit of their successors and permitted assigns, if any, heirs and
administrators. The provisions of this Note may be amended, waived or modified
only upon the written consent of Xxxxxx and LION. All notices with respect to
this Note shall be in writing, delivered, and effective as provided in the
Merger Agreement.
10. NOTICES. Any notice or written communication given pursuant to or
in connection with this Note shall be in writing and shall be given by
delivering the same personally or by prepaid courier, prepaid certified or
registered mail or telecopier, addressed to the party to be notified at the
address of such party set out below or at such other address of which such party
has given notice to the other parties hereto. Any such notice shall be
conclusively deemed to have been given and received on the day of actual receipt
by the addressee or, if given by prepaid certified or registered mail, on the
third day (excluding Saturday, Sunday and any statutory holiday) following the
mailing date (absent a general disruption in postal service).
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ORAL AGREEMENTS OR ORAL COMMITMENTS TO LOAN MONEY, EXTEND CREDIT, OR TO FORBEAR
FROM ENFORCING REPAYMENT OF A DEBT ARE NOT ENFORCEABLE UNDER WASHINGTON LAW.
LION, INC.
By:
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Its:
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