Exhibit 10.25
Execution Copy
THIS NOTE HAS NOT BEEN REGISTERED UNDER UNITED STATES FEDERAL OR STATE
SECURITIES LAWS AND MAY NOT BE OFFERED FOR SALE, SOLD, OR OTHERWISE DISPOSED OF
OR ASSIGNED FOR VALUE, DIRECTLY OR INDIRECTLY, NOR MAY IT BE TRANSFERRED ON THE
BOOKS OF THE CORPORATION, WITHOUT REGISTRATION OF THIS NOTE UNDER ALL APPLICABLE
UNITED STATES FEDERAL AND STATE SECURITIES LAWS OR COMPLIANCE WITH AN APPLICABLE
EXEMPTION THEREFROM, SUCH COMPLIANCE AT THE OPTION OF THE CORPORATION, TO BE
EVIDENCED BY AN OPINION OF NOTEHOLDER'S COUNSEL, IN FORM AND SUBSTANCE
ACCEPTABLE TO THE MAKER OF THIS NOTE, THAT NO VIOLATION OF SUCH REGISTRATION
PROVISIONS WOULD RESULT FROM ANY PROPOSED TRANSFER OR ASSIGNMENT.
PROMISSORY NOTE
U.S.$640,000 New York, New York
February 27, 2003
FOR VALUE RECEIVED, TITAN PCB EAST, INC., a Delaware corporation (the
"Maker") promises to pay to the order of the investors named on Schedule A
hereto or any assigns thereof (collectively, the "Holders"), according to the
percentage interests set forth opposite their respective names thereon (each, a
"Percentage Interest"), the principal sum of Six Hundred and Fourty Thousand and
No/100ths Dollars (U.S.$640,000.00), together with interest thereon as provided
for below (the "Note").
SECTION 1. PAYMENT OF INTEREST. Interest on the unpaid principal shall
accrue from February 27, 2003 at a rate of the lesser of (i) twenty four percent
(24%) (subject to adjustment as provided herein) per annum (360-day/30-day month
basis) and (ii) the maximum rate of interest permitted under applicable law, and
shall be payable quarterly in arrears on the last day of each calendar quarter
commencing on March 31, 2003, and at the Maturity Date (as defined in Section
2), whether by acceleration or otherwise.
SECTION 2. PAYMENT OF PRINCIPAL.
(a) The unpaid principal hereof shall be due and payable in full in
cash at 12:00 noon on the earlier to occur of (i) February 27, 2004, (ii) the
date of approval by the Board of Directors of the Maker or Ventures-National
Incorporated, a Utah corporation and guarantor of the Maker's obligations under
this Note ("VNI"), of the merger of either the Maker or VNI with or into any
third party as a result of which the stockholders of the Maker or VNI, as
applicable, immediately prior to such merger hold less than 50.1% of the voting
rights of the acquiring company immediately following such merger, and (iii) the
date of approval by the Board of Directors of either Maker or VNI of the sale or
lease of all or substantially all of the assets of the Maker or VNI, as the case
may be (the "Maturity Date"), or such earlier date on which the Note is due and
payable upon the occurrence and continuation of an Event of Default pursuant to
Section 5 hereof. To the extent not sooner paid or converted, all accrued
interest, default interest, and any other unpaid fees, costs, or expenses due
the Holders shall be due and payable in full on the Maturity Date. Payments
under this Note are unconditionally due and payable and shall not be reduced by
any right of offset or counterclaim. If the Maturity Date falls on a day that is
not a Business Day (as defined below), the payment due on the Maturity Date will
be made on the next succeeding Business Day with the same force and effect as if
made on the Interest Payment Date or the Maturity Date, as the case may be.
"Business Day" means any day which is not a Saturday or Sunday and is not a day
on which banking institutions are generally authorized or obligated to close in
the City of New York, New York.
(b) The Maker may, at its option, prepay all or any part of the
principal of this Note, without payment of any premium or penalty. All payments
on this Note shall be applied first to accrued interest hereon and the balance
to the payment of principal hereof.
(c) Payments of principal and interest on this Note shall be made in
lawful currency of the United Sates by check sent to each Holder at the address
set forth under such Holder's name on Schedule A hereto or to such other address
as such Holder may designate for such purpose from time to time by written
notice to the Maker, in such coin or currency of the United States of America as
at the time of payment shall be legal tender for the payment of public and
private debts, and in each case pro rata to each Holder according to such
Xxxxxx's Percentage Interest.
(d) The obligations to make the payments provided for in this Note are
absolute and unconditional and not subject to any defense, set-off,
counterclaim, rescission, recoupment, or adjustment whatsoever. The Maker hereby
expressly waives demand and presentment for payment, notice of non-payment,
notice of dishonor, protest, notice of protest, bringing of suit, and diligence
in taking any action to collect any amount called for hereunder, and shall be
directly and primarily liable for the payment of all sums owing and to be owing
hereon, regardless of and without any notice, diligence, act, or omission with
respect to the collection of any amount called for hereunder.
SECTION 3. SECURITY AGREEMENT. The obligations of the Maker under this
Note are secured by a perfected security interest granted to Personal Resources
Management, Inc., as agent for the benefit of the Holders (the "Agent") pursuant
to that certain Security Agreement, dated as of the date hereof (as amended from
time to time), by and between the Maker and each Holder (the "Security
Agreement"). Each Holder is entitled to the benefits of this Note and the
Security Agreement and all other agreements, documents, instruments and
certificates referred to herein or therein, or executed in connection herewith
or therewith (collectively, the "Loan Documents"). Neither this reference to the
Security Agreement and the Loan Documents, nor any provision thereof, shall
affect or impair the absolute and unconditional obligations of the Maker to pay
the principal and interest on this Note.
SECTION 4. COVENANTS. The Maker covenants and agrees with each Holder
that, so long as any amount remains unpaid on this Note, the Maker:
(a) shall not: (i) sell, assign (by operation of law or otherwise), or
otherwise dispose of any of the collateral secured by the Security Agreement,
except in the ordinary course of business; (ii) create or suffer to exist any
lien, security interest, or other charge or encumbrance senior to, or pari passu
with, the lien contemplated hereby; (iii) pay any dividend or make any
distribution on, or purchase, redeem, or retire, any shares of its capital stock
or any warrants, options, or other rights to reacquire any such shares, except
that the Maker may pay dividends payable solely in shares of its capital stock;
(iv) change its primary line of business; (v) enter into any merger or
consolidation; (vi) liquidate, wind up its affairs or dissolve; (vii) directly
or indirectly, enter into any transaction with or for the benefit of an
affiliate (other than reasonable compensation for services as an officer,
director or employee); and (viii) in any manner increase the compensation of its
existing officers and directors from the levels in effect on the date of funding
of this Note.
(b) shall (i) timely provide to the investors unaudited quarterly and
audited annual financial statements of VNI; and (ii) comply with notice
requirements relating to material changes, legal proceedings and other matters.
SECTION 5. EVENTS OF DEFAULT.
(a) Events of Default. For purposes of this Note, an "Event of Default"
shall be deemed to occur: (i) upon the Maker's failure to make any payment of
principal or interest on this Note, when due, whether at the Maturity Date, at a
date fixed for the payment of any installment thereof, by acceleration or
otherwise, and such amount shall remain unpaid for ten (10) days from the date
due; (ii) upon any other failure of the Maker to comply with the terms and
conditions hereof, if such failure is not cured within twenty (20) days of
Maker's receipt of written notice by any Holder; (iii) upon the failure of the
Maker to comply with any of the terms and conditions of the Loan Documents
(including, without limitation, limitations on use of proceeds from the sale of
this Note), if such failure to comply is not cured within the grace period set
forth therein, and if no grace period is so set forth, then within twenty (20)
days of Maker's receipt of written notice by any Holder, (iv) upon any
representation, warranty or certification made by the Company pursuant to the
Loan Documents shall prove to have been false or misleading in any material
respect; (v) upon a default in the performance , or a breach, of any covenant or
agreement of the Maker in the Security Agreement; (vi) upon entry of a final
judgment or judgments for the payment of money in excess of $500,000 in the
aggregate by one or more courts (administrative or otherwise), arbitral
tribunals or other bodies, in each case of competent jurisdiction, which
judgments shall not have been discharged (or provision shall not be made for
such discharge), or a stay of execution thereof shall not be procured, within 30
days from the date of entry thereof, and the Maker shall not, within such 30-day
period, or such longer period during which execution of the same shall have been
stayed, appeal therefrom and cause the execution thereof to be stayed during
such appeal; (vii) the commencement of proceedings under any proceeding under
Title 11 of the United States Code or other proceeding relating to the Maker
under any bankruptcy, reorganization, arrangement, insolvency, readjustment of
debt, dissolution or liquidation or similar law of any jurisdiction, now or
hereafter in effect, or shall take any action to authorize or in furtherance of
any of the foregoing; bankruptcy or insolvency law by or against the Maker,
(viii) if the Maker shall make an assignment for the benefit of its creditors,
(ix) a decree or order is entered appointing any such trustee, custodian,
liquidator or receiver or adjudicating the Maker bankrupt or insolvent, or
approving a petition in any such case or other proceeding, or a decree or order
for relief is entered in respect of the Maker in an involuntary case under
federal bankruptcy laws as now or hereafter constituted; (x) upon the
commencement of any levy or sale upon or execution or other proceedings of any
nature, including a foreclosure of a subordinate lien on the assets of the
Maker, whereby the Maker shall be deprived of title or right of possession to
either property or any material part thereof; or (xi) upon the dissolution of
termination of existence of the Maker or cessation of normal customary business
activities of the Maker.
(b) Remedies for Default. In the case of any Event of Default by the
Maker, the Agent, upon written request of any Holder, shall demand that the
aggregate amount of funds advanced to the Maker under this Note and outstanding
hereunder and accrued and unpaid interest thereon shall, in addition to all
other rights and remedies of the Holders hereunder and under applicable law, be
and become immediately due and payable upon written notice delivered by the
Agent to the Maker; provided, that in the event of any Event of Default
specified in any of clauses (i), (vi) through (xi) of Section 4(a), all such
amounts shall become immediately due and payable automatically and without any
requirement of demand from or by the Agent. Notwithstanding the preceding
sentence, the rights of the Holders as set forth in this Section 4 shall survive
any such acceleration and payment.
(c) Default Interest Rate. In the case of any Event of Default under
this Note by the Maker, this Note shall continue to bear interest after such
default.
SECTION 6. GUARANTY. VNI hereby unconditionally guarantees the full
payment of of the entire outstanding principal amount of this Note (including
capitalized interest, if any), together with any accrued and unpaid interest
thereon by the Maker if and to the extent any such principal or interest remains
outstanding after foreclose upon and liquidation of the collateral secured by
the Security Agreement.
SECTION 7. ISSUANCE OF SHARES. Concurrent with the execution and
delivery this Note, the Maker shall cause to be executed and delivered to each
Holder at the address set forth below such Holder's name on Schedule A hereto a
share certificate which shall represent such Holder's Percentage Interest of
Four Hundred Thousand (295,000) shares of common stock, par value $0.001 per
share, of VNI.
SECTION 8. GOVERNING LAW. This Note shall be governed by the laws of
the State of New York, without giving effect to its conflict of laws or choice
of law provisions or rules.
SECTION 9. SUCCESORS AND ASSIGNS. This Note shall be assignable (i)
upon notice to the Maker and in accordance with such reasonable requirements as
the Maker shall specify, including, without limitation, submission of an opinion
of counsel of the transferor reasonably satisfactory to the Maker to the effect
that such assignment will not violate applicable securities laws and (ii)
conditioned upon such assignee agreeing in writing to be bound by the Agency
Agreement, dated as of the date hereof, by and among, the Agent and the Holders.
SECTION 10. SEVERABILITY OF THIS AGREEMENT. In the event that any
provision of this Note becomes or is declared by a court of competent
jurisdiction to be illegal, unenforceable or void, this Note will continue in
full force and effect without said provision and the parties agree to replace
such provision with a valid and enforceable provision that will achieve, to the
extent possible, the economic, business and other purposes of such provisions;
provided that no such severability will be effective against a party if it
materially and adversely changes the economic benefits of this Note to such
party, without such parties consent.
SECTION 11. WAIVERS AND AMENDMENTS. With the written consent of the
Maker and the Agent, only upon written consent of each Holder, the obligations
of the Maker and the rights of the Holders under this Note may be waived or
amended (either generally or in a particular instance, either retroactively or
prospectively and either for a specified period of time or indefinitely). This
Note, or any provision hereof, may not be changed, waived, discharged or
terminated orally, but only in writing as provided above. No delay or omission
to exercise any right, power or remedy accruing to the Agent or any Holder upon
any breach or default under this Note shall impair any such right, power or
remedy of such party or be construed to be a waiver of any such breach or
default, or an acquiescence therein, or of or in any similar breach or default
occurring thereafter; nor shall any waiver of any single breach or default be
deemed a waiver of any other breach or default theretofore or thereafter
occurring. All of the remedies of the Agent and the Holders, either under this
Note, the Security Agreement or by law or otherwise afforded to such party,
shall be cumulative and not alternative.
SECTION 12. EXECUTION. This Note may be executed and delivered to the
Holders by a facsimile transmission; such transmission shall be deemed a valid
signature.
SECTION 13. WAIVERS, ETC. The Maker and all endorsers of this Note
hereby waive demand and presentment for payment, notice of non-payment, notice
of dishonor, protest, notice of protest, bringing of suit and diligence in
taking any action to collect any amount called for hereunder in connection with
the delivery, acceptance, performance or enforcement of this Note; and, the
Maker shall be directly and primarily liable for the payment of all sums owing
and to be owing under this Note, regardless of and without any notice,
diligence, act or omission with respect to the collection of any amount called
for hereunder.
SECTION 14. NOTICE. Any notice or demand which is required or provided
to be given under this Note shall be deemed to have been sufficiently given and
received for all purposes when delivered by hand, telecopy, or nationally
recognized overnight courier, or five (5) days after being sent by certified or
registered mail, postage and charges prepaid, return receipt requested, to the
following addresses:
If to the Maker:
Titan PCB East, Inc.
0 Xxxxxxxxxx Xxx
Xxxxxxxx, XX 00000
Attention: Xxxxx X. Xxxxx
Telecopier No.: (000) 000-0000
With a copy to:
Reitler Brown LLC
000 Xxxxx Xxxxxx, 00xx xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxx X. Xxxxx, Esq.
Telecopier No.: (000) 000-0000
If to a Holder, to such address set forth below such Holder's name on
Schedule A hereto;
or, with respect to any party hereto, at any other address designated in writing
by such party in accordance with the provisions of this Section 14.
IN WITNESS WHEREOF, the Maker has executed this Note, dated February
27, 2003 as an instrument under seal on the date written above.
IN THE PRESENCE OF: TITAN PCB EAST, INC.
By: /s/ Xxxxx Xxxxx
------------------------- ------------------------------------
Witness Xxxxx X. Xxxxx
Chairman of the Board
VENTURES-NATIONAL INCORPORATED
As Guarantor
By: /s/ Xxxxx Xxxxx
-----------------------------------
Xxxxx X. Xxxxx
Chairman of the Board
SCHEDULE A
Names and Amount of Investment
Name of Secured Party Percentage Principal Amount
--------------------- ---------- ----------------
Xxxxxx Xxxxxx 7.82 $50,000.00
Xxxxxxx Xxxxxxx 9.38 $60,000.00
Xxxxxxx X Xxxxxxxx Trustee, Xxxx 7.82 $50,000.00
Xxx Xxxxxxxxx Trustee u/w/o Xxxxxxx
X Xxxxxxx
Xxxxxxx X. Xxxxx 7.82 $50,000.00
Xxxx XxXxxx 4.69 $30,000.00
Xxxxx Xxxxxx 23.44 $150,000.00
Xxxxx Xxxxxxxxxx - 15.63 $100,000.00
Xxxx Xxxx 7.82 $50,000
Xxxx Xxxxx 15.63 $100,000.00
Total 100% $640,000.00
