Attached files
| file | filename |
|---|---|
| EX-10.2 - Vuzix Corp | v206807_ex10-2.htm |
| EX-10.1 - Vuzix Corp | v206807_ex10-1.htm |
| EX-10.3 - Vuzix Corp | v206807_ex10-3.htm |
| EX-99.1 - Vuzix Corp | v206807_ex99-1.htm |
| 8-K - Vuzix Corp | v206807_8k.htm |
CONVERTIBLE
PROMISSORY NOTE
|
U.S.
$4,000,000
|
December
23, 2010
|
|
New
York, New York
|
FOR VALUE
RECEIVED, Vuzix Corporation, a corporation organized and existing under the laws
of the State of Delaware, with offices at 75 Town Centre Drive, Rochester, NY
14623 (the “Borrower”), hereby promises to pay to the order of LC Capital Master
Fund Ltd, a corporation organized and existing under the laws of the Cayman
Islands, as lender (the “Lender”) at its office at 680 Fifth Avenue, 12th Floor,
New York, New York, 10019, or as it may otherwise direct, the principal sum of
Four Million Dollars (U.S. $4,000,000). The Borrower shall repay the
indebtedness represented by this Note as provided in Section 2 of that certain
Loan and Security Agreement dated as of December 23, 2010 (the “Loan
Agreement”), made by and among the Borrower, as borrower and the Lender, as
Lender, pursuant to which the Lender has agreed to provide to the Borrower a
secured loan in the amount of Four Million Dollars (U.S. $4,000,000) (the
“Loan”).
The
principal or and interest accrued on this note are convertible into shares of
the $.001 par value common stock of Borrower as provided in the
Agreement.
Words and
expressions used herein (including those in the foregoing paragraph) and defined
in the Loan Agreement shall have the same meaning herein as therein
defined.
This Note
may be prepaid on such terms as provided in the Loan Agreement. Interest shall
be paid on the indebtedness represented by this Note at the rate (the
“Applicable Rate”) determined from time to time in accordance with Section 2 of
the Loan Agreement and at the times provided in Section 2 of the Loan Agreement,
which provisions are incorporated herein with full force and effect as if they
were more fully set forth herein at length. Any principal payment not paid when
due, whether on the maturity date thereof or by acceleration, shall bear
interest thereafter at a rate per annum equal to the Default Rate (as defined in
the Loan Agreement). All interest shall accrue and be calculated on the actual
number of days elapsed and on the basis of a 360 day year.
Both
principal and interest are payable in United States Dollars to the Lender, for
the account of the Lender, as the Lender may direct, in immediately available
same day funds.
If this
Note or any payment required to be made hereunder becomes due and payable on a
day which is not a Business Day, the due date thereof shall be extended until
the next following Business Day and interest shall be payable during such
extension at the rate applicable immediately prior thereto, unless such next
following Business Day falls in the following calendar month, in which case the
due date thereof shall be adjusted to the immediately preceding Business
Day.
This Note
is the Note referred to in the Loan Agreement and is entitled to the security
and benefits therein provided, including, but not limited to, such security as
provided in the Loan Documents. Upon the occurrence of any Event of Default
under Section 8 of the Loan Agreement, the principal hereof and accrued interest
hereon may be declared to be (or, with respect to certain Events of Default,
automatically shall become) immediately due and payable.
In the
event that any holder of this Note shall institute any action for the
enforcement or the collection of this Note, there shall be immediately due and
payable, in addition to the unpaid balance hereof, all late charges and all
costs and expenses of such action, including reasonable attorneys’
fees.
The
Borrower, for itself and its successors and assigns and any endorsers of the
Note from time to time, hereby waives presentment, protest, demand for payment,
diligence, notice of dishonor and of nonpayment, and any and all other notices
or demands in connection with the delivery, acceptance, performance, default or
enforcement of this Note, hereby waives and renounces all rights to the benefits
of any statute of limitations and any moratorium, appraisement, exemption and
homestead now provided or which may hereafter be provided by any federal or
state statute, including, without limitation, exemptions provided by any federal
or state statute, including, without limitation, exemptions provided by or
allowed under any federal or state bankruptcy or insolvency laws, both as to
itself and as to all of its property, whether real or personal, against the
enforcement and collection of the obligations evidenced by this Note and any and
all extensions, renewals and modifications hereof and hereby consents to any
extensions of time, renewals, releases of any party this Note, waiver or
modification that may be granted or consented to by the holder of this
Note.
The
Borrower agrees that its obligations hereunder are absolute and unconditional
without regard to the liability of any other party and that no delay on the part
of the holder hereof in exercising any power or right hereunder shall operate as
a waiver thereof; nor shall any single or partial exercise of any power or right
hereunder preclude other or further exercise thereof or the exercise of any
other power or right.
If at any
time this transaction would be usurious under applicable law, then regardless of
any provision contained in the Loan Agreement or this Note or any other
agreement made in connection with this transaction, it is agreed that (a) the
total of all consideration which constitutes interest under applicable law that
is contracted for, charged or received upon the Loan Agreement, this Note or any
other agreement shall under no circumstances exceed the maximum rate of interest
authorized by applicable law, if any, and any excess shall be credited to the
Borrower and (b) if the Lenders elect to accelerate the maturity of, or if the
Borrower prepays the indebtedness described in this Note, any amounts which
because of such action would constitute interest may never include more than the
maximum rate of interest authorized by applicable law and any excess interest,
if any, provided for in the Loan Agreement, in this Note or otherwise, shall be
credited to the Borrower automatically as of the date of acceleration or
prepayment.
THE
UNDERSIGNED, AND THE LENDER BY ITS ACCEPTANCE HEREOF, EACH HEREBY WAIVES TRIAL
BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM BROUGHT BY ANY PARTY HERETO OR
ANY BENEFICIARY HEREOF ARISING IN RESPECT OF ANY MATTER WHATSOEVER ARISING OUT
OF OR IN ANY WAY CONNECTED WITH THIS NOTE.
This Note
shall be governed by and construed in accordance with the laws of the State of
New York.
IN
WITNESS WHEREOF, the Borrower has executed and delivered this Note on the date
and year first above written.
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Vuzix
Corporation
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By:
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/s/ Paul Travers
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Name:
Paul Travers
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|
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Title:
President
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