THIS NOTE AND THE COMMON SHARES ISSUABLE UPON CONVERSION OF THIS NOTE HAVE NOT
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR APPLICABLE
STATE SECURITIES LAWS. THIS NOTE AND THE COMMON SHARES ISSUABLE UPON CONVERSION
OF 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 AN OPINION OF COUNSEL REASONABLY
SATISFACTORY TO XXXXXXXXXXX.XXX, INC. THAT SUCH REGISTRATION IS NOT REQUIRED.
CONVERTIBLE NOTE
----------------
FOR VALUE RECEIVED, XXXXXXXXXXX.XXX, INC., a Florida corporation
(hereinafter called "Borrower"), hereby promises to pay to XXXXXXX TRUST REG.
(the "Holder") or order, without demand, the sum of Three Hundred and
Seventy-Five Thousand Dollars ($375,000), with simple interest accruing at the
annual rate of 8%, on July 3, 2002 (the "Maturity Date").
The following terms shall apply to this Note:
ARTICLE I
DEFAULT RELATED PROVISIONS
1.1 Payment Grace Period. The Borrower shall have a ten (10)
day grace period to pay any monetary amounts due and payable under this Note,
after which grace period a default interest rate of 15% per annum shall apply to
the amounts owed hereunder.
1.2 Conversion Privileges. The Conversion Privileges set forth
in Article II shall remain in full force and effect immediately from the date
hereof and until the Note is paid in full.
1.3 Interest Rate. Subject to the Holder's right to convert,
the principal and interest payable on this Note shall accrue at the annual rate
of eight percent (8%) and be payable on the Maturity Date, accelerated or
otherwise, when the principal and remaining accrued but unpaid interest shall be
due and payable.
ARTICLE II
CONVERSION RIGHTS
The Holder shall have the right to convert the principal
amount and interest due under this Note into Shares of the Borrower's Common
Stock as set forth below.
2.1. Conversion into the Borrower's Common Stock.
(a) The Holder shall have the right from and after the
issuance of this Note and then at any time until this Note is fully paid, to
convert any outstanding and unpaid principal portion of this Note of $25,000 or
greater amount, or any lesser amount representing the full remaining outstanding
and unpaid
1
principal portion (and at the Holder's election, the unpaid interest accrued on
the Note), into fully paid and nonassessable shares of common stock of Borrower
as such stock exists on the date of issuance of this Note, or any shares of
capital stock of Borrower into which such stock shall hereafter be changed or
reclassified (the "Common Stock") at the conversion price as defined in Section
2.1(b) hereof (the "Conversion Price"), determined as provided herein, (the date
of giving of such notice of conversion is a "Conversion Date"). Upon delivery to
the Company of a Notice of Conversion as described in Section 9 of the
subscription agreement entered into between the Company and Holder relating to
this Note (the "Subscription Agreement") of the Holder's written request for
conversion, Borrower shall issue and deliver to the Holder within five business
days from the Conversion Date that number of shares of Common Stock for the
portion of the Note converted in accordance with the foregoing. At the election
of the Holder, the Company will deliver accrued but unpaid interest on the Note
through the Conversion Date directly to the Holder on or before the Delivery
Date as defined in the Subscription Agreement. The number of shares of Common
Stock to be issued upon each conversion of this Note shall be determined by
dividing that portion of the principal on the Note (and interest, if any) to be
converted, by the Conversion Price.
(b) Subject to adjustment as provided in Section 2.1(c)
hereof, the Conversion Price per share shall be the lower of (i) eighty (80%)
percent of the average of the lowest closing bid prices for the Common Stock on
the OTC Pink Sheets, or on any principal securities exchange or other securities
market on which the Common Stock is then being listed or traded, for the three
trading days prior to but not including the date of this Note ("Maximum Base
Price"), or (ii) seventy-five (75%) of the average of the three lowest closing
bid prices for the Common Stock on the OTC Pink Sheets and/or NASD OTC Bulletin
Board, or on any principal securities exchange or other securities market on
which the Common Stock is then being listed or traded, for the thirty (30)
trading days preceding, but not including the Conversion Date.
(c) The Conversion Price described in Section 2.1(b)(i) above
and number and kind of shares or other securities to be issued upon conversion
determined pursuant to Section 2.1(a) and 2.1(b), shall be subject to adjustment
from time to time upon the happening of certain events while this conversion
right remains outstanding, as follows:
X. Xxxxxx, Sale of Assets, etc. If the Borrower at
any time shall consolidate with or merge into or sell or convey all or
substantially all its assets to any other corporation, this Note, as to the
unpaid principal portion thereof and accrued interest thereon, shall thereafter
be deemed to evidence the right to purchase such number and kind of shares or
other securities and property as would have been issuable or distributable on
account of such consolidation, merger, sale or conveyance, upon or with respect
to the securities subject to the conversion or purchase right immediately prior
to such consolidation, merger, sale or conveyance. The foregoing provision shall
similarly apply to successive transactions of a similar nature by any such
successor or purchaser. Without limiting the generality of the foregoing, the
anti-dilution provisions of this Section shall apply to such securities of such
successor or purchaser after any such consolidation, merger, sale or conveyance.
B. Reclassification, etc. If the Borrower at any time
shall, by reclassification or otherwise, change the Common Stock into the same
or a different number of securities of any class or classes, this Note, as to
the unpaid principal portion thereof and accrued interest thereon, shall
thereafter be deemed to evidence the right to purchase such number and kind of
securities as would have been issuable as the result of such change with respect
to the Common Stock immediately prior to such reclassification or other change.
2
C. Stock Splits, Combinations and Dividends. If the
shares of Common Stock are subdivided or combined into a greater or smaller
number of shares of Common Stock, or if a dividend is paid on the Common Stock
in shares of Common Stock, the Maximum Base Price shall be proportionately
reduced in case of subdivision of shares or stock dividend or proportionately
increased in the case of combination of shares, in each such case by the ratio
which the total number of shares of Common Stock outstanding immediately after
such event bears to the total number of shares of Common Stock outstanding
immediately prior to such event.
D. Share Issuance. Subject to the provisions of this
Section, if the Borrower at any time shall issue any shares of Common Stock
prior to the conversion of the entire principal amount of the Note (otherwise
than as: (i) provided in Sections 2.1(c)A, 2.1(c)B or 2.1(c)C or this
subparagraph D; (ii) pursuant to options, warrants, or other obligations to
issue shares, outstanding on the date hereof as described in the Reports and
Other Written Information, as such terms are defined in the Subscription
Agreement (which agreement is incorporated herein by this reference); or (iii)
stock or stock options granted to employees or directors of the Company, or
equity or debt issued in connection with an acquisition of a business or assets
by the Company, or the issuance by the Company of its stock in connection with
the establishment of a joint venture, partnership or licensing arrangement; [(i)
(ii) and (iii) above, are hereinafter referred to as the "Excepted Issuance
Obligations"] for a consideration less than the Maximum Base Price that would be
in effect at the time of such issue, then, and thereafter successively upon each
such issue, the Maximum Base Price shall be reduced as follows: (i) the number
of shares of Common Stock outstanding immediately prior to such issue shall be
multiplied by the Maximum Base Price in effect at the time of such issue and the
product shall be added to the aggregate consideration, if any, received by the
Borrower upon such issue of additional shares of Common Stock; and (ii) the sum
so obtained shall be divided by the number of shares of Common Stock outstanding
immediately after such issue. The resulting quotient shall be the adjusted
conversion price. Except for the Excepted Issuance Obligations and options that
may be issued under any employee incentive stock option and/or any qualified
stock option plan adopted by the Company, for purposes of this adjustment, the
issuance of any security of the Borrower carrying the right to convert such
security into shares of Common Stock or of any warrant, right or option to
purchase Common Stock shall result in an adjustment to the Maximum Base Price
upon the issuance of shares of Common Stock upon exercise of such conversion or
purchase rights, the consideration being both the purchase price and any
additional price paid upon exercise or conversion.
(d) During the period the conversion right exists, Borrower
will reserve from its authorized and unissued Common Stock a sufficient number
of shares to provide for the issuance of Common Stock upon the full conversion
of this Note. Borrower represents that upon issuance, such shares will be duly
and validly issued, fully paid and non-assessable. Xxxxxxxx agrees that its
issuance of this Note shall constitute full authority to its officers, agents,
and transfer agents who are charged with the duty of executing and issuing stock
certificates to execute and issue the necessary certificates for shares of
Common Stock upon the conversion of this Note.
2.2 Method of Conversion. This Note may be converted by the
Holder in whole or in part as described in Section 2.1(a) hereof and the
Subscription Agreement. Upon partial conversion of this Note, a new Note
containing the same date and provisions of this Note shall be issued by the
Borrower to the Holder for the principal balance of this Note and interest which
shall not have been converted or paid.
3
ARTICLE III
EVENT OF DEFAULT
The occurrence of any of the following events of default
("Event of Default") shall, at the option of the Holder hereof, make all sums of
principal and interest then remaining unpaid hereon and all other amounts
payable hereunder immediately due and payable, all without demand, presentment
or notice, or grace period, all of which hereby are expressly waived, except as
set forth below:
3.1 Failure to Pay Principal or Interest. The Borrower fails
to pay any installment of principal or interest hereon when due and such failure
continues for a period of ten (10) days.
3.2 Breach of Covenant. The Borrower breaches any material
covenant or other term or condition of this Note and such breach, if subject to
cure, continues for a period of seven (7) days after written notice to the
Borrower from the Holder.
3.3 Breach of Representations and Warranties. Any material
representation or warranty of the Borrower made herein, in the Subscription
Agreement entered into by the Holder and Borrower in connection with this Note,
or in any agreement, statement or certificate given in writing pursuant hereto
or in connection therewith shall be false or misleading.
3.4 Receiver or Trustee. The Borrower shall make an assignment
for the benefit of creditors, or apply for or consent to the appointment of a
receiver or trustee for it or for a substantial part of its property or
business; or such a receiver or trustee shall otherwise be appointed.
3.5 Judgments. Any money judgment, writ or similar final
process shall be entered or filed against Borrower or any of its property or
other assets for more than $50,000, and shall remain unvacated, unbonded and
unstayed for a period of forty-five (45) days.
3.6 Bankruptcy. Bankruptcy, insolvency, reorganization or
liquidation proceedings or other proceedings or relief under any bankruptcy law
or any law for the relief of debtors shall be instituted by or against the
Borrower.
3.7 Delisting. Delisting of the Common Stock from the OTC Pink
Sheets or NASD OTC Bulletin Board or such other principal exchange on which the
Common Stock is listed for trading, or Borrower's failure to comply with the
conditions for listing, on the principal market on which it is listed or
notification from any such aforedescribed market or exchange that the Borrower
is not in compliance with the conditions for such continued listing.
3.8 Concession. A concession by the Borrower or a default
under any one or more obligations in an aggregate monetary amount in excess of
$50,000.
3.9 Stop Trade. An SEC stop trade order or NASDAQ trading
suspension.
3.10 Failure to Deliver Common Stock or Replacement Note.
Xxxxxxxx's failure to timely deliver Common Stock to the Holder pursuant to and
in the form required by this Note and Section 9 of the Subscription Agreement,
or if required a replacement Note.
3.11 Registration Default. The occurrence of a
Non-Registration Event as described in Section 10.4 of the Subscription
Agreement, but only if such Non-Registration Event is continuing on or occurs
after a date which is 210 days after the Closing Date as defined in the
Subscription Agreement.
4
ARTICLE IV
MISCELLANEOUS
4.1 Failure or Indulgence Not Waiver. No failure or delay on
the part of Holder hereof in the exercise of any power, right or privilege
hereunder shall operate as a waiver thereof, nor shall any single or partial
exercise of any such power, right or privilege preclude other or further
exercise thereof or of any other right, power or privilege. All rights and
remedies existing hereunder are cumulative to, and not exclusive of, any rights
or remedies otherwise available.
4.2 Notices. Any notice herein required or permitted to be
given shall be in writing and may be personally served or sent by fax
transmission (with copy sent by regular, certified or registered mail or by
overnight courier). For the purposes hereof, the address and fax number of the
Holder is as set forth on the first page hereof. The address and fax number of
the Borrower shall be Xxxxxxxxxxx.xxx, Inc., 00 Xxxxxxxx, Xxxxx 000, Xxx Xxxx,
XX 00000, telecopier number: (000) 000-0000. Both Xxxxxx and Borrower may change
the address and fax number for service by service of notice to the other as
herein provided. Notice of Conversion shall be deemed given when made to the
Company pursuant to the Subscription Agreement.
4.3 Amendment Provision. The term "Note" and all reference
thereto, as used throughout this instrument, shall mean this instrument as
originally executed, or if later amended or supplemented, then as so amended or
supplemented.
4.4 Assignability. This Note shall be binding upon the
Borrower and its successors and assigns, and shall inure to the benefit of the
Holder and its successors and assigns, and may be assigned by the Holder.
4.5 Cost of Collection. If default is made in the payment of
this Note, Borrower shall pay the Holder hereof reasonable costs of collection,
including reasonable attorneys' fees.
4.6 Governing Law. This Note shall be governed by and
construed in accordance with the laws of the State of New York. Any action
brought by either party against the other concerning the transactions
contemplated by this Agreement shall be brought only in the state courts of New
York or in the federal courts located in the state of New York. The Borrower,
and, by accepting this Note, the Holder agree to submit to the jurisdiction of
such courts. The prevailing party shall be entitled to recover from the other
party its reasonable attorney's fees and costs.
4.7 Maximum Payments. Nothing contained herein shall be deemed
to establish or require the payment of a rate of interest or other charges in
excess of the maximum permitted by applicable law. In the event that the rate of
interest required to be paid or other charges hereunder exceed the maximum
permitted by such law, any payments in excess of such maximum shall be credited
against amounts owed by the Borrower to the Holder and thus refunded to the
Borrower.
4.8 Prepayment. This Note may not be paid prior to the
Maturity Date without the consent of the Holder.
5
IN WITNESS WHEREOF, Xxxxxxxx has caused this Note to be signed in its
name by its Chief Executive Officer on this 3rd day of July, 2000.
XXXXXXXXXXX.XXX, INC.
By:/s/ Xxxx X. Xxxxxxxxx
-------------------------------
Xxxx X. Xxxxxxxxx
President
WITNESS:
/s/ X.X. Xxxxx
---------------------------------
Xxxxxx X. Xxxxx
6
NOTICE OF CONVERSION
--------------------
(To be executed by the Registered Holder in order to convert the Note)
The undersigned hereby elects to convert $_________ of the principal
and $_________ of the interest due on the Note issued by XXXXXXXXXXX.XXX, INC.
on July ___, 2000 into Shares of Common Stock of XXXXXXXXXXX.XXX, INC. (the
"Company") according to the conditions set forth in such Note, as of the date
written below.
Date of Conversion:_____________________________________________________________
Conversion Price:_______________________________________________________________
Shares To Be Delivered:_________________________________________________________
Signature:______________________________________________________________________
Print Name:_____________________________________________________________________
Address:________________________________________________________________________
________________________________________________________________________
7
