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Exhibit: 10.53FT
PROMISSORY NOTE AGREEMENT
FOR $2.0 MILLION LOAN
TO FUTECH INTERACTIVE PRODUCTS, INC.
FROM XXXXXXX XXXXXX XXXXX AND XXXXXXX X. XXXXX
8/10/1998 Phoenix, Arizona
This Agreement is made and entered into on the date set forth above, by
and between, XXXXXXX XXXXXX XXXXX ("MTG") and XXXXXXX X. XXXXX ("XXXXX")
(jointly known as "PAYEE") and FUTECH INTERACTIVE PRODUCTS, INC. ("PROMISOR").
The purpose of this Agreement is to arrange for a short-term operating loan by
Payee to Promisor and the resulting repayment of principal, interest and shares
of common stock.
RECITAL:
Subject to the terms and conditions of this Agreement:
1. Payee desires and is willing to provide up to a $2.0 million loan
("Loan") to Promisor for repayment of PRINCIPAL AND INTEREST at an
annual interest rate of 10%. The term of the loan is for 12 months
starting on the first day of the first succeeding month after the loan
is received, in part or in full, by Promisor.
2. Upon maturity, Promisor will repay principal and interest calculated as
of that date. If full payment of the Loan is not made at that time,
interest will continue to accrue at an annual rate of interest of 16%.
There is no penalty for prepayment of the loan.
3. Payee reserves the right to convert all or a portion or the outstanding
principal and interest due and owing to shares of common stock of
Promisor. The conversion rate will be 20 shares of the Promisor's
common stock for every one dollar of principal plus interest
outstanding. The Payee may elect to exercise this conversion option at
anytime prior to the maturity date of the Loan or up to 180 days after
the Loan's maturity date if the Promisor has not been able to fulfill
the outstanding obligation monetarily. The only restriction is the
Promisor's number of unencumbered shares available for distribution.
4. In addition to the $2.0 million in principal plus accrued interest that
will be due and owing by Promisor to the Payee, or as designated by
Payee, the Promisor agrees to provide 8.0 million options for the
purchase of Promisor's common stock. The options are granted at an
exercise price of $0.05 per share, the options become exercisable one
year from the execution date of this Agreement and expire five years
from the exercise date. The stock options will be issued to Palmilla
Management Trust ("PMT").
5. The sum of $200,000.00 will be provided to Xxxxx as a shareholder
advance/loan as approved by the Shareholder Loan and Master Promissory
Note for Credit Line Agreement dated January 1, 1997. This amount shall
be payable to Xxxxx immediately upon receipt of the Loan proceeds.
6. Promisor desires to receive Loan under all the repayment terms and
conditions.
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NOW, THEREFORE, in consideration of the Agreement, covenants, and
undertakings contained below, it is mutually agreed as follows:
1. Payee agrees to arrange for and provide to Promisor a $2.0 million loan
per the terms and conditions previously stated.
2. Promisor agrees to receive the $2.0 million loan from Payee and to
repay all monies, stock options and shareholder advances/loans per the
terms and conditions of this Agreement.
REPRESENTATIONS OF PAYEE AND PALMILLA MANAGEMENT TRUST
Payee and PMT represent, warrant and covenant as follows:
1. Payee and PMT are familiar with the business and affairs of Promisor
and realize an investment in the shares involves a high degree of risk.
2. Payee and PMT have been advised that there will be no public market
for the shares; it may not be able to readily liquidate its investment, the
shares have not been registered or qualified under Federal or State laws
governing the issuance of securities; and Promisor has no current intention of
registering the shares or reporting under the Act or any comparable or related
Federal or State law.
3. Payee and PMT are accredited investors and acknowledge that its
overall commitment to investments which are not readily marketable is not
disproportionate to its net worth; and its investment in the shares will not
cause such overall commitment to become excessive; that Payee and PMT have
adequate means of providing for its current needs and personal contingencies,
and has no need for liquidity of this investment; that Payee and PMT have
evaluated the risk of investing in Promisor; that Payee and PMT are aware of the
financial risks and possible financial hazards of purchasing the shares and it
has carefully considered these risks of the investment, including the
possibility of a complete loss thereof.
4. Payee and PMT agree the stock is subject to a Stock Restrictions and
Sale Agreement. The shares acquired under this Agreement shall be subject to
that Stock Restrictions and Sale Agreement, as it may be amended from time to
time.
SURVIVAL
The representations, warranties and covenants contained in the section
Representations of Payee and PMT shall survive the transfer of the shares.
ATTORNEYS' FEES
The prevailing party in any action to enforce the terms and conditions
hereof shall be entitled to recover its reasonable attorneys' fees and court
costs.
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CONSTRUCTION
Where the context of this Agreement requires, the singular shall be
construed as the plural, and neuter pronouns shall be construed as masculine and
feminine pronouns, and vice versa. This Agreement shall be construed according
to its fair meaning and neither for nor against any party hereto. This Agreement
shall be governed by and construed in accordance with Arizona law.
Futech Interactive Products, Inc. ("Promisor")
/s/ Xxxxxxx X. Xxxxx
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Xxxxxxx X. Xxxxx
Chairman and CEO
This Agreement consists of a total of 3 pages
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