Attached files
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| EX-99.1 - PRESS RELEASE, DATED OCTOBER 22, 2020 - VISIUM TECHNOLOGIES, INC. | vism_ex991.htm |
| EX-10.28 - FORM OF SECURITIES PURCHASE AGREEMENT, DATED OCTOBER 21, 2020 - VISIUM TECHNOLOGIES, INC. | vism_ex1028.htm |
| 8-K - CURRENT REPORT - VISIUM TECHNOLOGIES, INC. | vism_8k.htm |
Exhibit 4.51
THE SECURITIES DESCRIBED HEREIN HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, OR ANY APPLICABLE STATE
SECURITIES LAWS, AND ARE BEING OFFERED IN RELIANCE ON EXEMPTIONS
FROM THE REGISTRATION REQUIREMENTS OF SAID ACTS AND SUCH
LAWS.
THE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE
SECURITIES AND EXCHANGE COMMISSION, ANY STATE SECURITIES REGULATOR,
OR ANY OTHER REGULATORY AUTHORITY, NOR HAVE ANY OF THE FOREGOING
AUTHORITIES PASSED UPON OR ENDORSED THE MERITS OR THE ACCURACY OR
ADEQUACY OF THIS DOCUMENT. ANY REPRESENTATION TO THE CONTRARY IS
UNLAWFUL.
PROMISSORY NOTE
(this “Note”)
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US $XXX.00
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October 21, 2020
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FOR VALUE RECEIVED, the undersigned,
VISIUM TECHNOLOGIES, INC., a
Florida corporation (the “Borrower”),
promises to pay to the order of ________________, an
individual (the
“Lender”), at
the address set forth in the notice section below, or at such other place as the borrower
hereof may from time to time designate in writing, the principal
sum of US
_____________________________ AND 00/100 DOLLARS ($XXX.00),
or so much thereof as shall remain unpaid, together with accrued
interest on the unpaid principal balance of this Note from the date
hereof, at the rate hereinafter set forth, until paid in full,
subject to the covenants and conditions set forth herein and in the
Securities Purchase Agreement dated as of October 21, 2020
(“SPA”).
1.
Interest.
A. Interest.
From and after the date hereof, interest (“Interest”)
shall be charged on the principal balance of this Note outstanding
from time to time (the “Principal
Amount” or “Principal”) at
a fixed rate of 8% simple interest per annum, with interest and principal
due and payable in one (1) year following the date of this Note
(the “Maturity
Date”).
B. Late Charge. Any payment not received within ten
(10) days of the due date shall accrue a late charge of five
percent (5%) of the payment not made when due.
C. 360 Day Year
Convention. All
Interest due under this Note shall be calculated based on a 365/360
calculation method (e.g.,
360 days per year factor applied to the actual days on which there
exists an outstanding Principal Amount). Interest shall be charged
on a per diem basis, but
shall not compound.
D. Application
of Payments. All payments received hereon shall be applied
in the following order: (i) to accrued Interest, if any, (ii) then
to late charges, if any, (iii) then to attorneys’ fees and
attorneys’ costs of collection, if any, (v) then to current
Interest, and (vi) then to the Principal Amount (as defined
below).
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2. Principal
Due in Single Balloon Payment.
A. Maturity.
The entire unpaid Principal Amount, together with all accrued and
unpaid Interest thereon, if not sooner paid, shall be due and
payable in full one (1) year following the date of this
Note.
B. Balloon
Payment. Upon the Maturity Date of this Note, Borrower shall
pay the entire unpaid and outstanding Principal Amount existing as
of such date, together with all Interest accrued thereon and any
other fees or charges which may then be required under the terms of
this Note.
3. Events
of Default. Any one
or more of the following shall constitute an “Event of
Default” hereunder:
A. The
Borrower shall fail to make the Interest payment when the same is
due, following a thirty (30) day written notice of default from
Lender.
B. The
Borrower shall fail to make the Principal payment when the same is
due, following a thirty (30) day written notice of default from
Lender.
C. Borrower
shall make an assignment for the benefit of its creditors, or shall
file a petition in bankruptcy, or shall collude with its creditors
to be adjudicated a bankrupt or insolvent, or shall file a petition
seeking any arrangement, composition, readjustment or similar
relief with respect to this Note under any present or future
statute, law or regulation, or shall file an answer admitting or
not contesting the material allegations of a petition filed against
it in any such proceeding, or shall seek or consent to or acquiesce
in the appointment of any trustee or receiver;
D. If
an involuntary case or other proceeding shall be commenced against
the Borrower seeking liquidation, reorganization or other relief
with respect to their respective debts under any bankruptcy,
insolvency or other similar law now or hereafter in effect or
seeking the appointment of a trustee, receiver, liquidator,
custodian or other similar official of it or any substantial part
of its property, and such involuntary case or other proceeding
shall remain undismissed and unstayed for a period of ninety (90)
days; or an order for relief shall be entered against the Borrower
under the federal bankruptcy laws as now or hereafter in
effect;
E. If
one or more judgments or orders for the payment of money not
covered by insurance, excepting any judgment or order which has
been either bonded off or stayed pending appeal, shall be rendered
against the Borrower, and such judgment or order shall continue
unsatisfied for a period of forty-five (45) days during which
execution shall not be effectively stayed;
F. If
the Borrower shall liquidate, dissolve or terminate its existence;
or
G. If
Borrower shall admit its inability to pay its debts generally as
they mature.
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5. Remedies.
Upon the occurrence of an Event of Default that continues beyond
any applicable cure period: (1) the entire outstanding Principal
balance under this Note, together with accrued Interest thereon,
and any late charges shall become immediately due and payable
without demand or further notice to the Borrower or any other
person; (2) the Lender may offset any amount owed under this Note
against any amount or credits which the Borrower may have; and (3)
the Borrower shall reimburse the Lender for all actual expenses,
costs, and reasonable attorneys’ fees which the Lender may
incur in connection with the collection of any monies due under
this Note. Failure of the Lender to exercise any rights hereunder
shall not constitute its waiver of the right to the later exercise
thereof or of any of its other rights or remedies.
6. Default
Interest.
Notwithstanding the entry of any decree, order, judgment or other
judicial action under, pursuant to, in connection with, or
otherwise concerning this Note, upon the occurrence of an Event of
Default hereunder, and/or after the Maturity Date of this Note
(whether by acceleration, extension or otherwise), the Borrower
promises to pay to the Lender whenever demanded by the Lender,
Interest on this Note and all other amounts then and thereafter due
and payable hereunder at a per
annum rate of Interest (the “Default Rate”)
equal at all times to twelve percent (12%) per annum from the date
of such Event of Default for so long as such Event of Default
continues, or from the Maturity Date until payment in full of the
unpaid Principal balance of this Note, all accrued and unpaid
Interest thereon and any and all other amounts due or payable
hereunder.
7. Prepayment.
For so long as the Borrower is not then in default of this Note the
Borrower shall have the right to prepay all or any portion of the
Principal evidenced by this Note, in whole or in part, at any time
and from time to time, upon not less than five (5) days’
prior written notice to the Lender. The Borrower’s and
Lender’s payment obligations hereunder shall survive the
payment in full of the advances and all other amounts payable
hereunder. Partial prepayments shall not relieve, postpone or
reduce the obligation of Borrower to make any payments of Principal
and/or Interest due hereunder, but shall be credited to accrued and
unpaid Interest, and then to unpaid Principal. Prepayments shall
include any payments made by the Borrower, whether voluntary or as
a result of acceleration upon an Event of Default under this
Note.
8. Waiver
of Notice. Borrower
(i) waives presentment, demand, protest and notice of presentment,
notice of protest and notice of dishonor of this debt and each and
every other notice of any kind respecting this Note (except as
otherwise expressly provided for herein), (ii) agrees that the
Lender hereunder, at any time or times, without notice to it or its
consent, may grant extensions of time, without limit as to the
number or the aggregate period of such extensions, for the payment
of any Principal and/or Interest due hereon, and (iii) to the
extent not prohibited by law, waives the benefit of any law or rule
of law intended for its advantage or protection as an obligor
hereunder or providing for its release or discharge from liability
hereon, in whole or in part, on account of any facts or
circumstances other than full and complete payment of all amounts
due hereunder.
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9. Waiver
of Jury Trial.
THE LENDER, THE BORROWER AND ANY
OTHER PARTY LIABLE HEREON IN ANY CAPACITY, WHETHER AS ENDORSER,
SURETY, OR OTHERWISE, EACH WAIVES TRIAL BY JURY WITH RESPECT TO ANY
ACTION, CLAIM, SUIT OR PROCEEDING IN RESPECT OF OR ARISING OUT OF
THE LOAN EVIDENCED HEREBY AND/OR THE CONDUCT OF THE RELATIONSHIP
BETWEEN THE LENDER, THE BORROWER AND/OR ANY OTHER PARTY LIABLE
HEREON IN ANY CAPACITY, WHETHER AS ENDORSER, SURETY, GUARANTOR, OR
OTHERWISE. THIS WAIVER IS
KNOWINGLY, WILLINGLY AND VOLUNTARILY MADE BY BORROWER, AND BORROWER
HEREBY REPRESENTS THAT NO ORAL OR WRITTEN STATEMENTS HAVE BEEN MADE
BY ANY PARTY TO INDUCE THIS WAIVER OF TRIAL BY JURY OR TO IN ANY
WAY MODIFY OR NULLIFY ITS STATED EFFECT. BORROWER FURTHER
REPRESENTS THAT IT HAS BEEN REPRESENTED BY INDEPENDENT COUNSEL OF
ITS CHOICE IN THE SIGNING OF THIS NOTE AND IN THE MAKING OF THIS
WAIVER AND THAT IT HAS HAD THE OPPORTUNITY TO DISCUSS THIS WAIVER
WITH SUCH COUNSEL.
10. Costs
of Collection. The
Borrower promises to pay all actual, reasonable and verifiable
third party costs and expenses incurred in connection with
collection hereof upon the occurrence of an Event of Default in the
payment of the Principal of this Note or Interest hereon when due,
whether at maturity, as herein provided, or by reason of
acceleration of maturity under the terms hereof, whether suit be
brought or not.
11. Lender’s
Rights and Remedies.
The failure of the Lender to exercise the option for acceleration
of maturity, following any Event of Default as aforesaid or to
exercise any other option granted to it hereunder, or the
acceptance by the Lender of partial payments or partial
performance, shall not constitute a waiver of any such Event of
Default, but such options shall remain continuously in force.
Acceleration of maturity, once claimed hereunder by the Lender, may
at its option be rescinded by written acknowledgment to that effect
but the tender and acceptance of partial payment or partial
performance alone shall not in any way affect or rescind such
acceleration of maturity. The rights, remedies and powers of the
Lender, as provided in this Note, are cumulative and concurrent,
and shall be in addition to every other right or remedy now or
hereafter provided by law or equity. Such remedies may be pursued
singly, successively, or together against the Borrower, all at the
sole discretion of the Lender. Borrower hereby expressly waives any
right to make a claim for or relating to the marshaling of assets.
The failure to exercise or delay in exercising any such remedy
shall not be construed as a waiver or release thereof.
12. Lawful
Interest.
Notwithstanding anything to the contrary contained herein, the
effective rate of interest on the obligation evidenced by this Note
shall not exceed the lawful maximum rate of interest permitted to
be paid. Without limiting the generality of the foregoing, in the
event the Interest charged hereunder results in an effective rate
of interest higher than that lawfully permitted to be paid, then
such charges shall be reduced by the sum sufficient to result in an
effective rate of interest permitted by law and any amount which
would exceed the highest lawful rate already received and held by
the Lender shall be applied to a reduction of Principal and not to
the payment of Interest.
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13. Partial
Invalidity. In the
event any one or more of the provisions contained in this Note
shall for any reason be held to be invalid, illegal or
unenforceable in any respect, such invalidity, illegality or
unenforceability shall not affect any other provision of this Note,
but this Note shall be construed as if such invalid, illegal or
unenforceable provision had never been contained herein or
therein.
14. Amendment.
This Note may not be changed orally, but only by an agreement in
writing signed by the parties against whom enforcement of any
waiver, change, modification or discharge is sought.
15. No
Release. This Note
shall be the obligation of the Borrower, and shall be binding upon
Borrower and its successors and assigns. No release of any person
liable for the indebtedness evidenced hereby, and no extension,
alteration, amendment, subordination or waiver of any provision of
this Note made by agreement between Lender and any other person or
party shall release, discharge, modify, change or affect the
liability of Borrower or any other person now or hereafter liable
under this Note.
16. Incorporation
of SPA. All of the
terms, covenants, provisions, conditions, stipulations, promises
and agreements contained in the SPA to be kept, observed and
performed by the Borrower and by the Lender are hereby made a part
of this Note and incorporated herein by reference to the same
extent and with the same force and effect as if they were fully set
forth herein, and the Borrower and Lender promise and agree to
keep, observe and perform them or cause them to be kept, observed
and performed, strictly in accordance with the terms and provisions
thereof. Borrower may offset any sums owing to it under the SPA
against this Note.
17. Business
Purpose. The Borrower
warrants and represents that the loan evidenced hereby is being
made for a business purpose.
18. Governing
Law; Venue. This Note
shall be governed in all respects by the internal laws and not the
law respecting conflict of laws of the Commonwealth of Virginia and
shall be binding upon and shall inure to the benefit of the parties
hereto and their respective heirs, executors, administrators,
personal representatives, successors and assigns. The Borrower
hereby consents to be sued in the Circuit Court of Fairfax County,
Virginia or the General District Court of Fairfax County, Virginia
in any action to enforce the provisions of this Note. The Borrower
waives any objection to the venue of any action filed by the holder
of this Note against the Borrower in said courts and waives any
claim of forum non
conveniens or for transfer of any such action to any other
court.
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19. Notices.
Unless otherwise provided in this Note, any offer, acceptance,
election, approval, consent, certification, request, waiver, notice
or other communication required or permitted to be given hereunder
(each, a “Notice”) shall be in writing and either (i)
delivered personally, (ii) mailed by certified or registered mail,
return receipt requested and postage prepaid, or (iii) sent via a
nationally recognized overnight courier to the person to whom the
Notice is to be given at the address set forth below or at such
other address as any person hereafter designates to the other in
accordance with the provisions of this Paragraph 19. The date on
which a Notice shall be deemed received shall be (a) the date of
receipt, if personally delivered, (b) on the second (2nd) business
day following the date on which the Notice is deposited in the U.S.
Mail, if sent by certified or registered mail, or (c) on the first
(1st)
business day following the date on which the Notice is sent, if
sent via a nationally recognized overnight courier. Notices shall
also be transmitted by electronic mail.
If to Borrower
to:
Visium
Technologies, Inc.
ATTN:
Mark Lucky, Chief Executive Officer
4094
Majestic Lane, Suite 360
Fairfax, Virginia
22033
Tel:
703.400.6392
Fax:
703.890.9512
Email:
mlucky@visiumtechnologies.com
If to Lender
to:
____________________
____________________
____________________
Tel:
________
Email:__________________________
(SIGNATURE
PAGE FOLLOWS)
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IN WITNESS WHEREOF, the undersigned has
executed, sealed and delivered this Note effective as of the day
and year first written above.
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VISIUM
TECHNOLOGIES, INC.
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By:
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Mark Lucky, Chief
Executive Officer
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[THIS
IS THE SIGNATURE PAGE OF A
PROMISSORY
NOTE IN THE PRINCIPAL AMOUNT OF $XXX.00;
MAKER,
VISIUM TECHNOLOGIES, INC.; PAYEE ________________]
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