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EXHIBIT 10.8
THIS NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED,
OR APPLICABLE STATE SECURITIES LAWS. THIS NOTE MAY NOT BE SOLD, OFFERED FOR
SALE, PLEDGED OR HYPOTHECATED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION
STATEMENT AS TO THIS NOTE UNDER SAID ACT AND APPLICABLE STATE SECURITIES LAWS OR
THE WRITTEN ACKNOWLEDGEMENT OF THE ISSUER, WHICH ACKNOWLEDGEMENT WILL NOT BE
UNREASONABLY WITHHELD, THAT A SALE IS PURSUANT TO A VALID EXEMPTION FROM THE
REGISTRATION REQUIREMENTS UNDER SAID ACT OR STATE SECURITIES LAWS.
CONVERTIBLE PROMISSORY NOTE
$32,000 May 11, 2000
FOR VALUE RECEIVED, x-Xxxxxxx.xxx Inc., a Delaware corporation, its
successors and assigns (the "COMPANY"), hereby promises to pay to the order of
XxXxxx De Leeuw & Co. III (Europe), L.P., its successors and assigns (the
"HOLDER") (i) upon the consummation of a Subsequent Financing (as defined
below); (ii) upon an Event of Default (as defined below), or (iii) in accordance
with the other terms of paragraph 3 herein, whichever is earlier, the principal
amount of $32,000, or such amount advanced or outstanding hereunder, plus
interest in arrears from and including the date hereof on the principal balance
from time to time outstanding, at a rate per annum equal to eight percent (8%).
This Note may not be prepaid in whole or in part, unless such prepayment is
approved in writing by Xxxxxx. Interest shall be calculated on the basis of
actual number of days elapsed over a year of 365 days. Notwithstanding any other
provision of this Note, the Holder does not intend to charge, and the Company
shall not be required to pay, any interest or other fees or charges in excess of
the maximum permitted by applicable law; any payments in excess of such maximum
shall be refunded to the Company or credited to reduce the principal hereunder.
All payments received by the Holder will be applied first to costs of
collection, if any, then to interest and the balance to principal.
Payments of principal and interest will be made by check in immediately
available United States funds sent to the Holder at the address furnished to the
Company for that purpose.
1. Registered Holder; Transfer. This Note will be registered on the
books of the Company or its agent as to principal and interest. Any transfer of
this Note will be effected only by surrender of this Note to the Company and
reissuance of a new note to the transferee.
2. Events of Default. The outstanding principal and accrued interest on
this Note shall, at the option of the Holder hereof, become due and payable
without notice or demand, upon the occurrence of any one of the following
specified events (each event referred to as "EVENT OF DEFAULT"):
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(a) failure to pay any amount as herein set forth;
(b) default in the performance by the Company of any material
obligation to the Holder under this Note, which default is not cured within
fifteen (15) business days after written notice of such default from the Holder;
(c) insolvency (however evidenced) or the commission of any
act of insolvency;
(d) the making of a general assignment for the benefit of
creditors;
(e) the filing of any petition or the commencement of any
proceeding by the Company or any endorser or guarantor of this Note for any
relief under any bankruptcy or insolvency laws, or any laws relating to the
relief of debtors, readjustment of indebtedness, reorganizations, compositions,
or extensions;
(f) the filing of any petition or the commencement of any
proceeding against the Company or any endorser or guarantor of this Note for any
relief under any bankruptcy or insolvency laws, or any laws relating to the
relief of debtors, readjustment of indebtedness, reorganizations, compositions,
or extensions, which proceeding is not dismissed within sixty (60) days; or
(g) the past or future making of a materially false
representation or warranty by the Company in connection with this Note.
3. Conversion.
(a) If a Subsequent Financing does not occur by June 15, 2000,
the outstanding principal and interest on this Note shall be due in full on
August 31, 2000, or such other date selected by the Holder upon three days prior
written notice to the Company. The outstanding principal on this Note may be
converted at any time by the Holder, and shall automatically convert upon the
consummation of a Subsequent Financing, into the following number of shares of
Series A Common Stock of the Company:
Date of Conversion Shares
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Prior to 6/16/2000 12,800
Between 6/16 and 8/31/2000 15,059
After 8/31/2000 18,286
Accrued and unpaid interest shall be paid in cash upon any such
conversion of this Note.
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(b) The term "SUBSEQUENT FINANCING" as used herein shall refer
to the sale by the Company to one or more third parties equity securities of the
Company at a financing equal to or exceeding $3,000,000 in aggregate gross
proceeds to the Company.
4. Expenses of Collection. The Company agrees to pay the Holder's
reasonable costs in collecting and enforcing this Note, including reasonable
attorney's fees.
5. Waiver by Xxxxxx. No waiver of any obligation of the Company under
this Note shall be effective unless it is in a writing signed by the Holder. A
waiver by the Holder of any right or remedy under this Note on any occasion
shall not be a bar to exercise of the same right or remedy on any subsequent
occasion or of any other right or remedy at any time.
6. Notice. Any notice required or permitted under this Note shall be in
writing and shall be deemed to have been given on the date of delivery, if
personally delivered to the party to whom notice is to be given, or on the fifth
business day after mailing, if mailed to the party to whom notice is to be
given, by certified mail, return receipt requested, postage prepaid, or
overnight courier service with proof of receipt.
7. Investment Representations. The Holder is acquiring this Note, and
any securities issued upon conversion hereof, for investment and not with a view
to the distribution thereof within the meaning of the Securities Act of 1933, as
amended (the "Securities Act"). The Holder understands that neither this Note,
nor any securities obtainable upon conversion hereof, have been registered or
qualified under the Securities Act or any state securities laws, by reason of
their issuance and sale in transactions exempt from the registration or
qualification requirements of the Securities Act and applicable state securities
laws. The Holder acknowledges that reliance on said exemptions is predicated in
part on the accuracy of Xxxxxx's representations and warranties herein. The
Holder acknowledges and agrees that the Note and such securities must be held by
the Holder indefinitely unless a subsequent disposition thereof is registered or
qualified under the Securities Act and applicable state securities laws or is
exempt from registration. The Holder is an "accredited Purchaser" as defined in
Regulation D promulgated under the Securities Act.
8. Waiver by Company. The Company hereby expressly waives presentment,
demand and protest, notice of demand, dishonor and nonpayment of this Note, and
all other notices or demands of any kind in connection with the delivery,
acceptance, performance, default or enforcement hereof, and hereby consents to
any delays, extensions of time, renewals, waivers or modifications that may be
granted or consented to by the Holder hereof with respect to the time of payment
or any other provision hereof.
9. Severability. In the event any one or more of the provisions of this
Note shall for any reason be held to be invalid, illegal or unenforceable, in
whole or in part or in any respect, or in the event that any one or more of the
provisions of this Note operate or would prospectively operate to invalidate
this Note, then and in any such event, such provision(s) only shall be deemed
null and void and shall not affect any other provision of this Note and the
remaining
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provisions of this Note shall remain operative and in full force and effect and
in no way shall be affected, prejudiced, or disturbed thereby.
10. Governing Law. This Note shall be governed by and construed and
enforced in accordance with the laws of the State of Delaware without giving
effect to the conflict of laws principles thereof.
X-XXXXXXX.XXX INC.
By:
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Name: Xxxxxxx X. Xxxxxxxxx, Xx.
Its: President
XXXXXX DE LEEUW & CO. III (EUROPE), L.P.
By:
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Name: Xxxxxx X. Xxxxxxx, Xx.
Its: General Partner
{signature on next page}
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X-XXXXXXX.XXX INC.
By:
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Name: Xxxxxxx X. Xxxxxxxxx, Xx.
Its: President
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