Exhibit 10.1
CONVERTIBLE LOAN AGREEMENT
This Convertible Loan Agreement ("Agreement") is entered into by and
between American Consolidated Management Group, Inc., a Utah corporation (the
"Company") and Upstate Capital Investments, Inc. ("Lender") to be effective as
of the 28th day of June, 2006.
WITNESSETH:
WHEREAS, the Company is in need of immediate capital to fund its
planned operations;
WHEREAS, Lender is willing to make a loan to the Company in the
aggregate principal amount of FIVE HUNDRED THOUSAND DOLLARS ($500,000 USD) upon
the terms and conditions set forth herein and the Company is willing to borrow
the stated amount upon such terms;
WHEREAS, the loan amount will be evidenced by that certain Convertible
Promissory Note in the form attached hereto as Exhibit A (the "Note"),
convertible into shares of common stock, par value $.20 (twenty cents) per
share, of the Company (the "Common Stock"); and
WHEREAS, upon the terms and conditions set forth herein, the Company
agrees to provide certain registration rights under the Securities Act of 1933,
as amended (the "Securities Act"), and the rules and regulations promulgated
thereunder, and applicable state securities laws.
NOW, THEREFORE, IT IS AGREED AS FOLLOWS:
Section 1. The Loan.
1.1. Contemporaneously with the execution of this Agreement, the
Company shall issue and deliver to Lender the Note in exchange for Lender's loan
to the Company of the aggregate principal amount of FIVE HUNDRED THOUSAND
DOLLARS ($500,000 USD) (the "Loan"). At the Lender's option, the Note may be
converted at any time after issuance into validly issued, fully paid and
nonassessable shares of Common Stock at the rate of one share of Common Stock
for every twenty cents ($.20) in amounts owing that are converted, upon the
terms and conditions set forth in this Agreement and the Note.
1.2. The Company shall use the net proceeds of the Note for working
capital and other purposes.
Section 2. Finance Charges. All outstanding principal represented by the Note
shall bear interest at the rate of twelve percent (12%) per annum. Interest will
be computed on the basis of a 365-day year for actual days elapsed.
Section 3. Payments. Principal and all accrued interest shall be due and payable
in a single balloon payment on the one year anniversary of this Agreement. The
Company may not prepay any amounts owed to Lender without Lender's written
approval. Payments shall be applied first to late charges and collection costs,
if any, then to accrued interest to the date of payment, and then to the
principal outstanding.
Section 4. Deliveries. Contemporaneously with the execution of this Agreement,
the parties shall deliver to each other the following:
(a) The properly executed Note of even date herewith by
and between Lender and the Company in the principal
amount of FIVE HUNDRED THOUSAND DOLLARS ($500,000).
(b) The Loan proceeds in the amount of FIVE HUNDRED
THOUSAND DOLLARS ($500,000), of which TWO HUNDRED
SEVENTY-FOUR THOUSAND ONE HUNDRED SEVENTY-SIX DOLLARS
AND SEVENTY-FIVE CENTS ($274,176.75 USD) have already
been received by the Company.
Section 5. Representations of Lender.
5.1 Lender's representations in this Agreement are complete and
accurate to the best of Lender's knowledge, and the Company may rely upon them.
5.2 Lender is able to bear the economic risk of an investment in the
Note and the Common Stock into which the Notes are convertible (the "Shares,"
and together with the Note, the "Securities") can afford the loss of the entire
investment in the Securities, and will, after making an investment in the
Securities, have sufficient means of providing for Lender's current needs and
possible future contingencies.
5.3 The Securities will not be sold by Lender without registration
under applicable securities acts or a proper exemption from such registration.
5.4 The Securities are being acquired for Lender's own account and
risk, for investment purposes, and not on behalf of any other person or with a
view to, or for resale in connection with, any distribution thereof within the
meaning of the Securities Act. Lender is aware that there are substantial
restrictions on the transferability of the Securities.
5.5 Lender has had access to any and all information concerning the
Company that Lender and Lender's financial, tax and legal advisors required or
considered necessary to make a proper evaluation of this investment.
Specifically, Lender has had the opportunity to review the Company's annual
report on Form 10-KSB for the fiscal year ended December 31, 2004 and all
subsequent filings by the Company (the "Filings") with the Securities and
Exchange Commission ("SEC"). Lender also understands that the Company is
delinquent in timely filing required reports with the SEC. In making the
decision to acquire the Securities, the Lender and Lender's advisers have relied
solely upon their own independent investigations, the Filings and the
information provided in this Agreement, and fully understand that there are no
guarantees, assurances or promises in connection with any investment hereunder
and understands that the particular tax consequences arising from this
investment in the Company will depend upon Lender's individual circumstances.
Lender further understands that no opinion is being given as to any securities
or tax matters involving the offering.
5.6 Lender also understands and agrees that stop transfer instructions
relating to the Securities will be placed in the Company's transfer ledger, and
that the Securities will bear a restrictive legend pursuant to Rule 144.
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5.7 Lender knows that the Securities are offered and sold pursuant to
exemptions from registration under the Securities Act of 1933, and state
securities law based, in part, on these warranties and representations, which
are the very essence of this Agreement, and constitute a material part of the
bargained-for consideration without which this Agreement would not have been
executed.
5.8 Lender has the capacity to protect Lender's own interest in
connection with this transaction or has a pre-existing personal or business
relationship with the Company or one or more of Lender's officers, directors or
controlling persons consisting of personal or business contacts of a nature and
duration such as would enable a reasonably prudent purchaser to be aware of the
character, business acumen and general business and financial circumstances of
such person with whom such relationship exists.
5.9 This Agreement when fully executed and delivered by the Company
will constitute a valid and legally binding obligation of Lender, enforceable in
accordance with its terms. Lender was not formed or organized for the specific
purpose of acquiring the Securities. In the event Lender is an entity, the
purchase of the Securities by Lender is a permissible investment in accordance
with Lender's Articles of Incorporation or other similar charter document, and
has been duly approved by all requisite action by the entity's owners,
directors, officers or other authorized managers. The person signing this
document and all documents necessary to consummate the purchase of the
Securities has all requisite authority to sign such documents on behalf of
Lender.
5.10 Lender represents that Lender is a sophisticated and an
"accredited investor" as defined under Rule 501 of Regulation D.
Section 6. Representations of the Company.
6.1 The Company is a duly organized and validly existing corporation in
good standing under the laws of Utah and is duly qualified as a foreign
corporation to do business and is in good standing in every jurisdiction in
which its ownership or use of property or the nature of the business conducted
by it makes such qualification necessary. The Company has no subsidiaries.
6.2 The Company has all necessary corporate power and authority to
enter into and perform this Agreement and the Securities. The Company has taken
all corporate action necessary to authorize this Agreement and the Securities.
6.3 The execution and delivery of this Agreement, the performance by
the Company of its obligations under this Agreement and the Securities, and the
consummation of the transactions provided for in this Agreement and the
Securities have been duly and validly authorized by all necessary corporate
action on the part of the Company. This Agreement and the Note will, as of the
effective date set forth above, be duly executed and delivered by the Company
and will constitute the valid and binding agreement of the Company enforceable
against the Company in accordance with its respective terms, subject to
applicable bankruptcy, insolvency and other similar laws affecting the
enforceability of creditors' rights generally, general equitable principles and
the discretion of courts in granting equitable remedies.
6.4 The execution and delivery by the Company of this Agreement and the
Note, the performance by the Company of its obligations hereunder and
thereunder, and the consummation of the transactions contemplated hereby and
thereby, do not and will not (a) violate or conflict with or result in a breach
of any provision of the Articles of Incorporation or Bylaws of the Company; (b)
require any consent, approval or notice under, or registration under or payment
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on account of, or conflict with, or result in a violation or breach of, or
constitute (with or without the giving of notice or the lapse of time or both) a
default (or give rise to any right of termination, modification (including, in
the case of leases, any change in the amount or nature of the rent),
cancellation or acceleration or result in the creation or imposition of any lien
upon the property of the Company) under, any of the terms, conditions or
provisions of any (i) note, bond, mortgage, indenture, license, lease, agreement
or other instrument or obligation to which the Company is a party or by which
any portion of its properties or assets may be bound, or (ii) permit, license,
approval, franchise or other governmental or regulatory authorization held or
used by or binding on the Company; (c) violate or contravene any law, statute,
rule or regulation, or any order, writ, judgment, injunction, decree or award of
any governmental authority binding on the Company; or (d) require any action,
consent, approval or authorization of, or review by, or declaration,
registration or filing with, or notice to, any governmental authority, except
such filings as may be required in connection with applicable securities laws.
6.5 As of the date hereof, the authorized and outstanding capital stock
and outstanding options and warrants of the Company consists of: 70,000,000
shares of common stock, par value $.01 per share, of which approximately
13,125,652 shares are outstanding, and no outstanding options or warrants. The
Company has entered into convertible loan agreements, prior to the date hereof,
in the principal amount of $325,000 which are convertible into common stock at
the rate of $.20 per share. All outstanding shares of capital stock of the
Company are, or upon issuance will be, duly authorized, validly issued, fully
paid and nonassessable. No shares of capital stock of the Company are subject to
preemptive rights or any other similar rights of the shareholders of the Company
or any liens or encumbrances imposed through the actions or failure to act of
the Company.
6.6 The Shares issuable upon conversion of the Note are duly authorized
and reserved for issuance and, upon conversion of the Note in accordance with
its terms, will be validly issued, fully paid and nonassessable, and free from
all taxes, liens, claims and encumbrances with respect to the issue thereof and
shall not be subject to preemptive rights or other similar rights of
shareholders of the Company and will not impose personal liability upon the
holder hereof.
6.7 The Company has not timely filed all reports, schedules, forms,
statements and other documents required to be filed by it with the SEC pursuant
to the reporting requirements of the Securities Exchange Act of 1934, as amended
(the "Exchange Act"). Except as expressly disclosed in such filings or otherwise
in this Agreement, there is no action, suit, claim, proceeding, inquiry or
investigation before or by any court, public board, government agency,
self-regulatory organization or body pending or, to the knowledge of the
Company, threatened against or affecting the Company, or its officers or
directors in their capacity as such that could have a material adverse affect on
the Company.
6.8 All information relating to or concerning the Company set forth in
this Agreement and provided to Lender pursuant to Section 5.5 hereof or
otherwise in connection with the transactions contemplated hereby is true and
correct in all material respects and the Company has not omitted to state any
material fact necessary in order to make the statements made herein or therein,
in light of the circumstances under which they were made, not misleading. No
event or circumstance has occurred or exists with respect to the Company or its
business, properties, prospects, operations or financial condition which, under
applicable law, rule or regulation, requires public disclosure or announcement
by the Company but which has not been so publicly announced or disclosed.
6.9 The Company is not obligated to pay any broker's fee, finder's fee,
investment banker's fee or other similar transaction fee in connection with the
transactions contemplated hereby.
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Section 7. Miscellaneous.
7.1. This Agreement, including any attached exhibits or schedules,
constitutes the entire agreement between the parties pertaining to the subject
matter contained in this Agreement. All prior and contemporaneous agreements,
representations and understandings of the parties, oral or written, are
superseded by and merged in this Agreement. No supplement, modification or
amendment of this Agreement shall be binding unless in writing and executed by
the Company and Lender.
7.2. The provisions of this Agreement shall be binding upon the
Company, its legal representatives, successors or assigns, and shall be for the
benefit of Lender and Lender's respective successors and assigns.
7.3. The headings of this Agreement are for purposes of reference only
and shall not limit or define the meaning of any provision of this Agreement.
This Agreement may be executed in any number of counterparts, each of which
shall be an original but all of which shall constitute one and the same
instrument.
7.4. No waiver of any of the provisions of this Agreement shall
constitute a waiver of any other provision, whether or not similar, nor shall
any waiver be a continuing waiver. Except as expressly provided in this
Agreement, no waiver shall be binding unless executed in writing by the party
making the waiver. Either party may waive any provision of this Agreement
intended for its benefit; provided, however, such waiver shall in no way excuse
the other party from the performance of any of its other obligations under this
Agreement.
7.5. The representations, warranties, acknowledgments and agreements
made by Lender shall survive the closing of the transaction described herein and
run in favor of, and for the benefit of, the Company. The representations,
warranties, acknowledgments and agreements made by the Company shall survive the
closing of the transaction described herein and run in favor of, and for the
benefit of, Lender.
7.6. The obligations of the parties hereto shall not be delegated or
assigned to any other party without the prior written consent of the other
party.
7.7. This Agreement shall be governed by the laws of the State of
Texas.
7.8. Any notices required or permitted hereunder shall be furnished in
writing to each party at such party's address appearing on the signature page
below or as such party may otherwise direct in writing actually received by the
other party.
7.9. The Company shall do, execute, acknowledge and deliver all such
further acts, deeds, assignments, transfers and assurances as Lender may
reasonably require to effectuate the purposes of this Agreement.
7.11 Rule 144.
(a) Rule 144(d)(3)(ii), as promulgated under the Securities
Act, provides that "[i]f the securities sold were acquired from the issuer for a
consideration consisting solely of other securities of the same issuer
surrendered for conversion, the securities so acquired shall be deemed to have
been acquired at the same time as the securities surrendered for conversion."
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So, for example, if Lender acquired the Note and lent funds on April 1, 2006 and
Lender converted the amounts owing on the Note into common stock on July 1,
2006, then the holding period of the common stock for purposes of Rule 144 would
be deemed to start on April 1, 2006.
(b) With a view to making available to Lender the benefits of
Rule 144, the Company agrees to use its best efforts to:
(i) Make and keep public information regarding the
Company available as those terms are understood and defined in Rule 144;
(ii) File with the SEC in a timely manner all reports
and other documents required of the Company under the Securities Act and the
Exchange Act at any time after it has become subject to such reporting
requirements; and
(iii) So long as Lender owns any Securities, promptly
furnish to the Lender upon written request a written statement by the Company as
to its compliance with the reporting requirements of Rule 144 and of the
Securities Act and the Exchange Act.
7.12 Registration rights.
(a) Whenever the Company proposes to register any of its
securities under the Securities Act (other than pursuant to a registration on
Form S-8 or any successor or similar forms), whether or not for sale for its own
account, the Company will give prompt written notice (but in no event less than
thirty (30) days before the anticipated filing date) to the Lender, and such
notice shall describe the proposed registration and distribution and offer to
Lender that the Company will include in such registration the number of Shares
as the Lender may request. The Company will include in such registration all
Shares with respect to which the Company has received written requests for
inclusion therein within twenty (20) days after the Lender's receipt of the
Company's notice. All registration expenses incurred in connection with any
registration, qualification or compliance pursuant to this Section 7.12 shall be
borne by the Company. Notwithstanding the foregoing, the Lender shall have no
registration rights pursuant to this Section 7.12 after the three year
anniversary of this Agreement.
(b) The Company will indemnify Lender and its agents, other
representatives, legal counsel, and accountants (each, a "Company Indemnified
Party"), with respect to which registration, qualification, or compliance has
been effected pursuant to this Section 7.12, and each underwriter, if any, and
each person who controls within the meaning of Section 15 of the Securities Act
any underwriter, against all expenses, claims, losses, damages, and liabilities
(or actions, proceedings, or settlements in respect thereof) caused by (1) any
untrue statement or alleged untrue statement of a material fact contained in any
registration statement or prospectus prepared in connection with any
registration statement pursuant to this Section 7.12 (and as amended or
supplemented if the Company shall have furnished any amendments thereof or
supplements thereto), any preliminary prospectus or any state securities law
filings; (2) any omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein not
misleading, except insofar as such expenses, claims, losses, damages, and
liabilities are caused by any untrue statement or omission contained in
information furnished in writing to the Company by Lender expressly for use
therein; and Lender by its acceptance hereof agree that it will indemnify and
hold harmless the Company, each of its officers who signs such registration
statement, and each person, if any, who controls the Company, within the meaning
of Section 15 of the Securities Act, with respect to losses, claims, damages, or
liabilities which are caused by any untrue statement or alleged untrue
statement, omission or alleged omission contained in information furnished in
writing to the Company by Lender expressly for use therein.
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7.13 This Loan is one of a series of loans that are being made to the
Company by various lenders in 2006 on similar terms which loans shall be in an
aggregate principal amount of not more than seven hundred seventy-five thousand
dollars ($775,000).
7.14 The Company shall at all times have authorized, and reserved for
the purpose of issuance, a sufficient number of shares of Common Stock to
provide for fully conversion or exercise of the Note and issuance of the shares
of Common Stock in connection therewith. The Company shall not reduce the number
of shares of Common Stock reserved for issuance upon conversion of the Note
without the consent of the Lender. The Company shall maintain at all times the
number of shares of Common Stock so reserved for issuance at an amount equal to
not less than the number that is actually issuable upon full conversion of all
notes issued by the Company pursuant to the series of loans referred to in
Section 7.13 hereof.
IN WITNESS WHEREOF, the undersigned have executed this Agreement to be
effective as of the date first written above.
AMERICAN CONSOLIDATED MANAGEMENT GROUP, INC. UPSTATE CAPITAL INVESTMENTS, INC.
By /s/ Xxxxxx X. Xxxxxx By /s/ Xxxxx X. Xxxxxx
Its Board of Directors Duly ---------------------------
Authorized Director: Name: Xxxxx X. Xxxxxx
Xxxxxx Xxxxxx
Address:
Address: x/x X/X Xxxxxxx, Xxx.
000 Xxxxxxxx Xxxx Attn: Xxxxx Xxxxxx
Xxxxx, XX 00000 XX Xxx 00000
Phone: 000-000-0000 Xxxxxxxxxx, XX 00000
Fax: 000-000-0000 Phone: 000-000-0000
Fax: 000-000-0000
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EXHIBIT A
NEITHER THIS NOTE NOR THE SECURITIES INTO WHICH THIS NOTE IS CONVERTIBLE HAVE
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES
ACT") AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD UNLESS AND UNTIL REGISTERED
UNDER AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT AND/OR
APPLICABLE STATE SECURITIES LAWS OR UNLESS THE COMPANY HAS RECEIVED AN OPINION
OF COUNSEL OR OTHER EVIDENCE SATISFACTORY TO THE COMPANY AND ITS COUNSEL THAT
SUCH REGISTRATION IS NOT REQUIRED.
AMERICAN CONSOLIDATED MANAGEMENT GROUP, INC.
CONVERTIBLE PROMISSORY NOTE
$500,000 June 28, 2006
American Consolidated Management Group, Inc., a Utah corporation (the
"Company"), for value received, promises to pay to Upstate Capital Investments,
LLC or its permitted assigns (the "Holder") the principal sum of $500,000 plus
interest thereon from the date of this Note until paid at a rate of twelve
percent (12%) per annum computed on the basis of a 365-day year and actual days
elapsed. This Convertible Promissory Note (this "Note") is being issued and
delivered pursuant to that certain Convertible Loan Agreement, dated as of June
28, 2006 (the "Loan Agreement"), by and among the Company and the Holder.
This Note will automatically mature and the entire outstanding
principal amount, together with accrued interest, shall become due and payable
in a single balloon payment on the one year anniversary of this Note, unless
prior to such date this Note is converted into shares of the Company's common
stock, par value $.20 (twenty cents) per share ("Common Stock"), pursuant to
Section 1 hereof.
Payments of both principal and interest are to be made at the address
of the Holder for the receipt of notices pursuant to Section 7(e) hereof, or at
such other place as the Holder shall designate to the Company in writing, in
lawful money of the United States of America.
The Company may not prepay any portion of the outstanding amounts owed
on this Note without the written consent of Holder.
The following is a statement of the rights of the Holder and the
conditions to which this Note is subject, and to which the Holder, by the
acceptance of this Note, agrees:
1. Optional Conversion of Note. At any time while this Note remains
outstanding, the entire outstanding amounts owing on this Note, including
accrued, but unpaid interest, may, at the Holder's sole option, be converted
into duly authorized, validly issued, fully paid and nonassessable shares of
Common Stock of the Company at the rate of one share of Common Stock for every
TWENTY CENTS ($.20) in amounts owing hereunder that are converted by Holder
("Conversion").
2. Mechanics of Conversion.
(a) Notice of Conversion. The Holder shall give written notice
to the Company of its election to convert this Note and shall state therein the
name or names in which the certificate or certificates for shares of Common
Stock are to be issued. The effective date of the Conversion shall be the date
such notice is received by the Company pursuant to Section 7(e) hereof.
(b) No Fractional Shares Upon Conversion. No fractional shares
of Common Stock shall be issued upon Conversion of this Note. In lieu of any
fractional shares to which the Holder would otherwise be entitled, the Company
shall pay cash equal to such fraction multiplied by the $.20 conversion price.
(c) Stock Certificates. At such time after the Conversion as
Holder presents this Note to the Company, the Company shall issue and deliver to
the Holder at the address listed below for receipt of notices, or to its nominee
or nominees, a certificate or certificates for the number of shares of Common
Stock to which it shall be entitled as aforesaid.
3. Charges, Taxes and Expenses. Issuance of a certificate or
certificates for shares of Common Stock upon the Conversion of this Note shall
be made without charge to the Holder for any issue or transfer tax or other
incidental expense in respect of the issuance of such certificate, all of which
taxes and expenses shall be paid by the Company.
4. No Rights as Stockholder. This Note does not entitle the Holder
hereof to any voting rights or other rights as a stockholder of the Company
prior to the Conversion.
5. Loss, Theft or Destruction of Note. Upon receipt by the Company of
evidence reasonably satisfactory to it of the loss, theft or destruction of this
Note and of indemnity or security reasonably satisfactory to it, the Company
will make and deliver a new Note which shall carry the same rights to interest
carried by this Note, stating that such Note is issued in replacement of this
Note, and this Note is cancelled, making reference to original date of issuance
of this Note (and any successors hereto) and dated as of such cancellation, in
lieu of this Note.
6. Events of Default.
(a) Each of the following occurrences shall constitute an
event of default under this Note (herein called "Event of Default"):
(i) the Company shall fail to pay any or all of the
obligations arising under this Note when due or shall fail to observe or perform
any covenant or agreement herein binding on it or shall be in default under any
security, loan, credit or similar agreement between it and the Holder;
(ii) any representation or warranty by the Company
set forth in this Note or in the Loan Agreement, or made to the Holder in any
financial statement or report submitted to the Holder by or on behalf of the
Company shall prove materially false or materially misleading;
(iii) the Company shall (A) voluntarily file, or have
filed against it involuntarily, a petition under the United States Bankruptcy
Code; or (B) be dissolved or liquidated or terminated; or (C) go out of
business;
(iv) Holder in good faith believes that the prospect
of due and punctual payment of any or all of the obligations evidenced hereby or
by the Loan Agreement is impaired; or
(b) Upon the occurrence of an Event of Default and at any time
thereafter during the continuation of such Event of Default, Holder may exercise
any one or more of the following rights and remedies:
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(i) declare all amounts due under this Note to be
immediately due and payable, and the same shall thereupon be immediately due and
payable, without presentment or other notice or demand; and
(ii) exercise or enforce any or all other rights or
remedies available to Holder by law or agreement against the Company or against
any other person or property.
7. Miscellaneous.
(a) Reservation of Stock. The Company covenants that the
Company will at all times reserve from its authorized and unissued Common Stock
a sufficient number of shares to provide for the issuance of the Common Stock
upon the Conversion of this Note and, from time to time, will take all steps
necessary to amend its charter to provide sufficient reserves of shares of
Common Stock issuable upon conversion of this Note. The Company further
covenants that all shares that may be issued upon the exercise of rights
represented by this Note, upon exercise as set forth herein, will be free from
all taxes, liens, claims and encumbrances in respect of the issuance thereof.
(b) Issue Date. The provisions of this Note shall be construed
and shall be given effect in all respect as if it had been issued and delivered
by the Company on the earlier of the date hereof or the date of issuance of any
Note for which this Note is issued in replacement. This Note shall be binding
upon any successors or assigns of the Company.
(c) Restrictions. The Holder acknowledges that the shares of
Common Stock acquired upon the conversion of this Note will be subject to
restrictions upon its resale imposed by state and federal securities laws.
(d) Assignment. Neither this Note nor any of the shares of
Common Stock issuable upon conversion of this Note may be sold, assigned,
transferred, pledged or hypothecated or otherwise disposed of unless and until
registered pursuant to an effective registration statement under the Securities
Act and/or applicable state securities laws or unless the Company has received
an opinion of counsel or other evidence satisfactory to the Company and its
counsel that such registration is not required.
(e) Notices. All notices or other communications required or
permitted hereunder shall be in writing and shall be effective (i) five (5) days
after deposit with the U.S. Postal Service or other applicable postal service,
if delivered by first class mail, postage prepaid, (ii) upon delivery, if
delivered by hand, (iii) one business day after the business day of deposit with
Federal Express or similar overnight courier, freight prepaid, guaranteeing
overnight delivery, or (iv) upon telephone or further electronic communication
from the recipient acknowledging receipt (whether automatic or manual from
recipient), if delivered by facsimile or electronic transmission, and shall be
addressed (A) to the Holder at the address provided in the Loan Agreement, and
(B) to the Company at the address of its principal corporate offices, Attention:
Chief Executive Officer, or at such other address as may be designated in
writing to the party.
(f) Enforcement. No act or omission of the Holder, including,
but not limited to, any failure to exercise, or delay in exercising, any right,
remedy or recourse with respect to a particular event, shall be deemed a waiver
or release of such right, remedy or recourse. The Company shall pay all
reasonable fees and expenses, including reasonable attorney's fees, incurred by
the Holder in the enforcement in any of the Company's obligations hereunder not
performed when due.
(g) Governing Law. This Note shall be governed by and
construed in accordance with the laws of the State of Texas, without regard to
its principles of conflicts of law.
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IN WITNESS WHEREOF, American Consolidated Management Group, Inc. has
caused this Convertible Promissory Note to be executed by its officer thereunto
duly authorized.
AMERICAN CONSOLIDATED MANAGEMENT GROUP, INC.
By: Xxxxxx X. Xxxxxx
------------------------------------------------
Its Board of Directors Duly Authorized Director:
Xxxxxx Xxxxxx
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