Attached files
| file | filename |
|---|---|
| 8-K - PERPETUAL TECHNOLOGIES, INC. | v174209_8k.htm |
| EX-10.7 - PERPETUAL TECHNOLOGIES, INC. | v174209_ex10-7.htm |
| EX-10.1 - PERPETUAL TECHNOLOGIES, INC. | v174209_ex10-1.htm |
| EX-21.1 - PERPETUAL TECHNOLOGIES, INC. | v174209_ex21-1.htm |
| EX-10.3 - PERPETUAL TECHNOLOGIES, INC. | v174209_ex10-3.htm |
| EX-4.2 - PERPETUAL TECHNOLOGIES, INC. | v174209_ex4-2.htm |
| EX-10.4 - PERPETUAL TECHNOLOGIES, INC. | v174209_ex10-4.htm |
| EX-10.6 - PERPETUAL TECHNOLOGIES, INC. | v174209_ex10-6.htm |
| EX-10.2 - PERPETUAL TECHNOLOGIES, INC. | v174209_ex10-2.htm |
| EX-4.4 - PERPETUAL TECHNOLOGIES, INC. | v174209_ex4-4.htm |
Exhibit
4.1
FORM OF SECURED CONVERTIBLE
PROMISSORY NOTE
THE
SALE OF THIS SECURED CONVERTIBLE PROMISSORY NOTE HAS NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED, OR THE SECURITIES LAWS OF ANY STATE OF
THE UNITED STATES. THE SECURITIES REPRESENTED HEREBY MAY NOT BE OFFERED OR SOLD
OR OTHERWISE TRANSFERRED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT
FOR SUCH TRANSACTION UNDER APPLICABLE SECURITIES LAWS OR UNLESS OFFERED, SOLD OR
TRANSFERRED PURSUANT TO AN AVAILABLE EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THOSE LAWS.
PERPETUAL
TECHNOLOGIES, INC.
SECURED
CONVERIBLE PROMISSORY NOTE
|
$______________
|
February
__1, 2010
|
|
Delaware
|
FOR VALUE RECEIVED, and upon
and subject to the terms and conditions set forth herein, Perpetual
Technologies, Inc., a Delaware corporation (“Issuer”), hereby promises to
pay to the order of _____________________, a _________________ (“Purchaser” and, together with
its successors and assigns, “Holder”), the principal sum of
__________________ UNITED STATED DOLLARS (U.S. $____________) on the Maturity
Date, together with interest as provided herein. This Note was issued
under and is subject to a Note Purchase Agreement (the “Purchase Agreement”) dated as
of __________, 2010 among Issuer, Purchaser and certain other
parties. This Note is one of a series of secured convertible
promissory notes of Issuer issued pursuant to the Purchase
Agreement. The other notes are referred to herein as the “Other Notes” (and, together
with this Note, the “Notes”) and the holders of
such Other Notes are referred to herein as the “Other Noteholders.”
Capitalized terms used and not otherwise defined herein will have the respective
meanings given to such terms in the Purchase Agreement.
1. Maturity
Date. This Note will mature, and be due and payable in full,
on February 12, 2011 (the “Maturity Date”).
2. Interest. From
and after the date hereof, all outstanding principal of this Note will bear
simple interest at the rate of ten percent (10%) per annum. On the
last Business Day of each fiscal quarter while this Note is outstanding and on
the earlier of the Maturity Date and the conversion of this Note pursuant to
Section 6 hereof, Issuer shall pay the then accrued interest on this
Note. Upon the occurrence and during the continuance of any Event of
Default (as hereinafter defined), all outstanding principal of this Note shall
bear interest at the rate of fifteen percent (15%) per annum (the “Default Rate”) and all accrued
and unpaid interest, as well as any interest due and unpaid before the default
is cured, shall be paid at the Default Rate. All outstanding
principal and accrued but unpaid interest on this Note shall be payable on the
Maturity Date.
3. Guaranty;
Security. Repayment of this Note shall be guaranteed, pari passu with the Other
Noteholders, by certain shareholders (the “Management Shareholders”)
pursuant to a Non- Recourse Guaranty, of even date herewith, entered into by the
Management Shareholders in favor of the Holder and the Other Noteholders (the
“Guaranty”). The
Guaranty shall be secured by a pledge by the Management Shareholders of their
shares of Common Stock pursuant to a Stock Pledge Agreement of even date
herewith, entered into by the Management Shareholders, the Holder, the Other
Noteholders, and The Law Offices of Louis E. Taubman, PC, a member of Leser,
Hunter, Taubman & Taubman, as collateral agent for the Holder and the Other
Noteholders (the “Stock Pledge
Agreement”).
4. Prepayment. This
Note may not be prepaid by the Issuer without the Holder’s written consent,
which may be granted or withheld in the Holder’s sole and absolute
discretion.
5. Transfer. Holder
may transfer this Note in compliance with applicable U.S. federal and state
and/or foreign securities laws and in accordance with Section 5.1 of the
Purchase Agreement.
6. Automatic
Conversion Upon Qualified Financing. At the closing of
a Qualified Financing on or prior to the Maturity Date, the principal amount of
this Note shall automatically convert into the securities sold in such financing
at a 65% discount to the price at which such securities are sold in such
financing. As used
herein, “Qualified
Financing” means the sale (or series of related sales) by the Company of
its capital stock, or debt or equity securities convertible into or exercisable
for its capital stock, in a capital raising transaction, for aggregate gross
proceeds to the Company of at least $20,000,000 or such lesser amount as shall
be approved in writing by the holder(s) of Notes evidencing at least 50% of the
principal amount of the Notes then outstanding.
7. Events of
Default. An “Event of Default” will occur
if:
(a) The
Issuer fails to pay (a) any principal of this Note or any Other Note when such
amount becomes due and payable in accordance with the terms hereof or thereof,
or (b) any interest on this Note or any Other Note, or any other payment of
money required to be made pursuant to this Note or any Other Note when such
payment becomes due and payable in accordance with the terms hereof or thereof;
or
2
(b) Any
representation or warranty by the Issuer or any Management Shareholder in any
Transaction Document or in any certificate, agreement or instrument executed and
delivered to the Holder or the Other Noteholders by the Issuer or any of its
subsidiaries, or by their respective accountants or officers, or by any
Management Shareholder pursuant to any Transaction Document is false, inaccurate
or misleading in any material respect on the date as of which made and the same
shall not have been cured within five (5) Business Days after written notice of
such default has been given by the Holder to the Company; or
(c) The
Issuer, any of its subsidiaries, or any Management Shareholder breaches or
defaults in the performance of any term, covenant, agreement, condition,
undertaking or provision of any Transaction Document, and such breach or
default, if capable of being cured, is not cured or waived within five (5)
Business Days after the Issuer, such subsidiary or such Management Shareholder,
as applicable, receives notice thereof; or
(d)
The Issuer, any of its subsidiaries, or any Management Shareholder (i) commences
any case, proceeding or other action (A) under any existing or future law of any
jurisdiction, domestic or foreign, relating to bankruptcy, insolvency,
reorganization or relief of debtors, seeking to have an order for relief entered
with respect to it, or seeking to adjudicate it bankrupt or insolvent, or
seeking reorganization, arrangement, adjustment, winding-up, liquidation,
dissolution, composition or other relief with respect to it or its debts, or (B)
seeking appointment of a receiver, trustee, custodian or other similar official
for it or for all or any substantial part of its assets, or (ii) is the debtor
named in any other case, proceeding or other action of a nature referred to in
clause (i) above which results in the entry of an order for relief or any such
adjudication or appointment and remains undismissed, undischarged or unbonded
for a period of sixty (60) days, or (iii) takes any action in furtherance of, or
indicating its consent to, approval of, or acquiescence to, any order,
adjudication or appointment of a nature referred to in clause (i) or (ii) above,
or (iv) shall generally not be paying, shall be unable to pay, or shall admit in
writing its inability to pay its debts as they become due, or (v) shall make a
general assignment for the benefit of its creditors; or
(e) On
or at any time after the date of this Note (i) any of the Transaction Documents
for any reason, other than a partial or full release in accordance with the
terms thereof, ceases to be in full force and effect or is declared to be null
and void, (ii) the Stock Pledge Agreement shall cease to provide the Holder and
the Other Noteholders a valid first priority security interest in the shares of
the Common Stock pledged thereunder; or
(f) Any
indebtedness for borrowed money of the Issuer or its subsidiaries in the
aggregate principal amount exceeding $25,000 (i) shall be duly declared to be,
or shall become, due and payable prior to the stated maturity date therefor, and
(ii) shall not be paid as and when the same becomes due and payable, including
any applicable grace period; or
(g) The
cessation of the Company’s business for more than thirty (30) days;
or
(h) There
shall occur (other than pursuant to the Reverse Merger Transaction) a change in
ownership or control of the Issuer effected through any of the following
transactions:
3
(i) a
merger, consolidation or reorganization approved by the stockholders of the
Issuer, unless securities representing more than fifty percent (50%) of the
total combined voting power of the voting securities of the Issuer are
immediately thereafter beneficially owned, directly or indirectly and in
substantially the same proportion, by the persons who beneficially owned the
Issuer’s outstanding voting securities immediately prior to such
transaction;
(ii) any
stockholder-approved transfer or other disposition of all or substantially all
of the assets of the Issuer (including a majority of the ownership interest,
direct or indirect, in any of its subsidiaries) or any subsidiary of the Issuer;
or
(iii) the
direct or indirect acquisition by any person or group (within the meaning of the
Exchange Act) of persons (other than the Issuer or a person that directly or
indirectly controls, is controlled by, or is under common control with the
Issuer) of beneficial ownership (within the meaning of Rule 13d-3 promulgated
under the Exchange Act) of outstanding securities possessing more than fifty
percent (50%) of the total combined voting power of the outstanding securities
of the Issuer pursuant to a tender or exchange offer made directly to the
stockholders of the Issuer which the Board recommends that such stockholders
accept.
8. Remedies. At
such time that an Event of Default has occurred and is continuing, this Note
shall automatically become immediately due and payable. Upon this
Note becoming due and payable under this Section 8, whether automatically
or by declaration (a “Default”), such Note
will forthwith mature and 150% of the entire unpaid principal amount of such
Note, plus all accrued and unpaid interest through the date of payment, shall
all be immediately due and payable, in each and every case without presentment,
demand, protest or further notice, all of which are hereby waived. If
any Default or Event of Default has occurred and is continuing, the Holder of
this Note may proceed to protect and enforce the rights of such Holder by an
action at law, suit in equity or other appropriate proceeding, whether for the
specific performance of the Purchase Agreement, the Registration Rights
Agreement or this Note, or for an injunction against a violation of any of the
terms hereof or thereof, or in aid of the exercise of any power granted hereby
or thereby or by law or otherwise.
9. Notices. Any
and all notices or other communications or deliveries required or permitted to
be provided hereunder will be in writing and shall be delivered personally, by
nationally-recognized overnight courier or by facsimile machine confirmed
telecopy to the applicable addresses set forth in the Purchase Agreement (or to
such other address as a party may designate by written notice in accordance with
the provisions of this Section 9), and will be deemed given and effective on the
earliest of (a) the date of transmission if such notice or communication is
delivered by fax prior to 5:30 p.m. (Eastern Time) on a Business Day, (b) the
next Business Day after the date of transmission if such notice or communication
is delivered via fax on a day that is not a Business Day or later than 5:30 p.m.
(Eastern Time) on a Business Day, (c) the 1st
Business Day after the date of mailing if sent by U.S. nationally recognized
overnight courier service for next Business Day delivery, or (d) upon actual
receipt by the party to whom such notice is required to be given.
4
10. Maximum
Lawful Rate. In no
event shall the amount of interest due or payments in the nature of interest
payable hereunder exceed the maximum non-usurious interest permitted by
applicable law (the “Maximum
Lawful Rate”). If from any possible construction of any
document or from receipt of anything of value by Holder, interest would
otherwise be payable in excess of the Maximum Lawful Rate, any such construction
or receipt shall be subject to the provisions of this paragraph and such
document shall be automatically reformed and the interest payable shall be
automatically reduced to the Maximum Lawful Rate, without the necessity of
execution of any amendment or new document, and any interest in excess of the
Maximum Lawful Rate shall be applied to the reduction of the principal amount
owing under this Note, or refunded to Issuer or other payor thereof if and to
the extent such excessive amount exceeds such unpaid principal
amount.
11. Governing
Law: Jurisdiction. This Note shall
be governed by and construed in accordance with the laws of the State of New
York. The Issuer hereto irrevocably consents to the jurisdiction of
the United States federal courts and state courts located in the State of New
York and County of New York in any suit or proceeding based on or arising under
this Note or the transactions contemplated hereby and irrevocably agrees that
all claims in respect of such suit or proceeding may be determined in such
courts. The Issuer irrevocably waives the defense of an inconvenient
forum to the maintenance of such suit or proceeding in such
forum. The Issuer further agrees that service of process upon the
Issuer, mailed by the first class mail in accordance with Section 9 hereof
shall be deemed in every respect effective service of process upon the Issuer in
any suit or proceeding arising hereunder. Nothing herein shall affect
the right of the Holder to serve process in any other manner permitted by
law. The parties hereby waive all rights to a trial by
jury.
12. Miscellaneous.
(a) The
Issuer and every endorser of this Note, and every other person at any time
liable for the payment of the indebtedness evidenced by this Note, shall be
obligated, to the extent permitted by the laws of the State of New York, to pay
to the Holder all expenses of every kind and nature whatsoever incurred in the
enforcement of this Note or any rights hereunder (whether or not litigation is
commenced), including, but not limited to, reasonable attorneys’ fees
(collectively, the “Expenses”), and hereby agrees
to pay to the Holder on demand the amount of any and all Expenses.
(b) The
failure of the Holder to exercise any right or remedy granted to it hereunder on
any one or more instances shall not constitute a waiver of any Event of Default
by the Holder, and all such rights and remedies shall remain continuously in
force. No delay or omission in the exercise or enforcement by the
Holder of any rights or remedies shall be construed as a waiver of any right or
remedy of the Holder, and no exercise or enforcement of any such right or remedy
shall be held to exhaust any other right or remedy of the Holder.
5
(c) The
Issuer’s obligation to pay principal and interest shall be absolute and
unconditional and without regard to any defense, offset, or counterclaim which
may at any time be available to the Issuer which constitutes, or might be
construed to constitute, an equitable or legal discharge of the Issuer or but
for this provision might otherwise give rise to a right of offset; provided that
nothing contained in this Note shall be construed to prevent or restrict the
Issuer from asserting any rights which the Issuer may have against the Holder
under this Note or under any provision of law, by a separate action or
proceeding but not by abatement, attachment, recoupment, counterclaim, offset or
defense against the payments to be made by the Issuer under this
Note.
(d) All
covenants, agreements and undertakings in this Note binding upon the Issuer or
the Holder shall bind and inure to the benefit of their respective heirs,
executors, personal representatives, successors and permitted assigns, whether
so expressed or not.
6
SIGNED AND DELIVERED as of the
date first above written.
|
PERPETUAL
TECHNOLOGIES, INC.
|
||
|
By:
|
||
|
Name:
|
Jie
Li
|
|
|
Title:
|
Chief
Executive Officer
|
|
7