Exhibit 10.23
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED, AND MAY NOT BE SOLD, ASSIGNED OR OTHERWISE TRANSFERRED IN THE ABSENCE
OF SUCH REGISTRATION OR AN EXEMPTION FROM SUCH REGISTRATION.
PROMISSORY NOTE
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Date: January 11, 1999
$450,000
FOR VALUE RECEIVED, the undersigned ("Debtor") hereby promises to pay to
Voyager Holdings, Inc., a Delaware corporation ("Payee"), at such place or
places as may be specified by Payee or any holder hereof, in legal tender of the
United States of America, the principal amount of $450,000 (the "Principal"),
which represents the amount equal to the fair market value of the 300,000 shares
of common stock, par value $.0001 per share, of Payee purchased by Debtor
pursuant to that Stock Purchase and Restriction Agreement on the date hereof
(the "Shares"), with interest at the rate of 5.00% per annum, compounded
annually, on the unpaid balance. Interest shall accrue commencing on the date
hereof and shall be due and payable in full at the Repayment Date (as
hereinafter defined). The Debtor shall pay to Payee, within ten (10) days after
receipt thereof, the net after-tax proceeds from any sale by the Debtor of the
Shares, in reduction of the Principal and accrued interest thereon until such
time as such Principal and interest have been repaid in full. For purposes
hereof, net after-tax proceeds refers to the amount received by the Debtor upon
any sale of such Shares, less brokerage commissions or underwriting discounts,
other expenses of every kind, including documentary, excise and other taxes, if
any, directly relating to the sale and an amount equal to the federal, state and
local taxes on any gain from such sale (as determined by multiplying the amount
of such gain by the combined maximum federal, state and local tax rate
applicable to the sale of such Shares by the Debtor, taking into account the
holding period for such Shares and any federal income tax deduction for state
and local income taxes). In any event, any Principal then unpaid shall be due
and payable, with accrued interest thereon, on the fourth (4th) anniversary of
date hereof (the "Repayment Date").
This Note is subject to the terms of and the payment hereof is secured by a
certain Pledge Agreement dated as of the date hereof by and between Debtor and
Payee (the "Pledge Agreement").
In case an Event of Default, as defined in the Pledge Agreement, shall
occur, the aggregate unpaid balance of Principal and accrued interest thereon
may be declared to be due
and payable in the manner and with the effect provided in the Pledge Agreement.
The obligation of the undersigned Debtor to pay the Recourse Amount (as
hereinafter defined) shall be absolute and unconditional, and the Payee shall
have full recourse against the Debtor's assets (including, but not limited to,
the collateral pledged pursuant to the Pledge Agreement) to recover the Recourse
Amount. The Recourse Amount as of any time shall mean 25% of the Principal, plus
accrued interest as of such date, reduced by any payment of Principal made by or
on behalf of the Debtor from any source. With respect to amounts due and payable
hereunder in excess of the Recourse Amount, the Payee shall have no recourse
against the Debtor or any of his assets other than the collateral pledged
pursuant to the Pledge Agreement, and Payee shall look only to its rights as
provided in the Pledge Agreement for the repayment of amounts in excess of the
Recourse Amount.
Debtor may discharge the obligations undertaken hereby, at any time, by
repaying the outstanding Principal and accrued interest thereon, without
penalty. Debtor may, without penalty, make a partial prepayment of Principal
and/or accrued interest thereon in any amount at any time and may thereby reduce
any required future payment hereunder by the amount of such prepayment.
Debtor expressly waives presentment for payment, protest and demand, notice
of protest, demand and dishonor and expressly agrees that this Note may be
extended from time to time without in any way affecting the liability of Debtor.
No delay or omission on the part of Payee in exercising any right hereunder
shall operate as a waiver of such right or of any other right under this Note.
This Note may be changed, modified or terminated only by an agreement in
writing that is signed by the Debtor and Payee. This Note shall be governed by
and construed in accordance with the laws of The Commonwealth of Massachusetts,
and shall be binding upon the successors and assigns of Debtor and inure to the
benefit of Payee and its successors, endorsees and assigns.
DEBTOR:
/s/ Xxxxxxx xxXxxxx
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Name: Xxxxxxx xxXxxxx
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