EXHIBIT 10.24
THIS NOTE AND THE SECURITIES INTO WHICH THIS NOTE IS CONVERTIBLE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"),
AND THEY MAY NOT BE OFFERED, SOLD, PLEDGED, HYPOTHECATED, ASSIGNED OR
TRANSFERRED EXCEPT (A) PURSUANT TO A REGISTRATION STATEMENT UNDER THE SECURITIES
ACT WHICH HAS BECOME EFFECTIVE AND IS CURRENT WITH RESPECT TO THESE SECURITIES,
OR (B) PURSUANT TO A SPECIFIC EXEMPTION FROM REGISTRATION UNDER THE SECURITIES
ACT, BUT ONLY UPON A HOLDER HEREOF OR THEREOF FIRST HAVING OBTAINED THE WRITTEN
OPINION OF COUNSEL TO THE ISSUER, OR OTHER COUNSEL, REASONABLY ACCEPTABLE TO THE
ISSUER, THAT THE PROPOSED DISPOSITION IS CONSISTENT WITH ALL APPLICABLE
PROVISIONS OF THE SECURITIES ACT AS WELL AS ANY APPLICABLE "BLUE SKY" OR OTHER
SIMILAR SECURITIES LAW.
EMPIRE FINANCIAL HOLDING COMPANY
CONVERTIBLE UNSECURED NON-NEGOTIABLE NOTE DUE 2006
$____________ December 31, 2003
FOR VALUE RECEIVED, Empire Financial Holding Company, a Florida
corporation (the "Company"), promises to pay to __________________ or permitted
assigns (the "Holder"), the principal amount of _____________________ dollars
($______), and to pay interest on the unpaid principal amount hereof at the rate
set forth in Section 3.
This Note is subject to the following terms and conditions:
1. PAYMENT OF NOTE. The Company will punctually pay or cause to be paid
the principal and interest on this Note at the dates and places and in the
manner specified herein. Any sums required by law for taxes to be withheld from
any payment of principal or interest on this Note may be withheld by the Company
and paid over in accordance therewith. Such payment or deposit will be deemed
payment to the Holder.
2. INTEREST. Interest shall be paid to the Holder in arrears
semi-annually on the unpaid principal amount hereof from time to time
outstanding at the rate per annum of ten percent, which interest shall be
payable on June 30 and December 31, commencing on June 30, 2004 (each an
"Interest Payment Date") until this Note is repaid in full.
3. PAYMENT OF PRINCIPAL. If this Note is not converted into shares of
the common stock, $.01 par value (the "Common Stock"), of the Company, in
accordance with Section 4, the
Maker:_______
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entire outstanding principal amount of this Note, together with accrued and
unpaid interest thereon, shall be due and payable on December 31, 2006 (the
"Maturity Date"). The Company may elect to pay the entire outstanding principal
amount of this Note, together with accrued and unpaid interest thereon, at any
time before the Maturity Date without a prepayment penalty by giving the Holder
at least 20 days prior written notice.
4. CONVERSION
(a) VOLUNTARY CONVERSION. At anytime at the written election of the
Holder, which election shall be effective as of a date no later than ten days
after the date of such notice (the "Effective Date"), the then outstanding
principal amount of this Note may be converted, in whole or part, into shares of
Common Stock (the "Note Shares"). At the time of election, the Holder shall
surrender to the Company the original of this Note. If less than the entire
principal amount of this Note shall be converted into Note Shares, the Company
shall issue a new Note in the principal amount not so converted.
(b) CONVERSION PRICE. The "Conversion Price" of this Note shall
initially be $2.00 per share; provided, that such Conversion Price shall be
subject to adjustment as provided herein.
(c) RESERVATION OF COMMON STOCK. The Company shall at all times reserve
and keep available out of its authorized but unissued shares of Common Stock
such number of shares of Common Stock as shall from time to time be sufficient
to effect the conversion of this Note.
(d) ADJUSTMENTS TO CONVERSION PRICE. The Conversion Price and the
number of shares of Common Stock issuable upon conversion of this Note shall be
adjusted from time to time as follows:
(i) If, at any time, the Company shall subdivide the
outstanding shares of Common Stock into a greater number of shares, the
Conversion Price in effect immediately prior to such subdivision shall
be proportionately reduced. If, at any time, the outstanding shares of
Common Stock shall be combined into a smaller number of shares, the
Conversion Price in effect immediately prior to such combination shall
be proportionately increased. Such adjustment shall be effective on the
date on which such corporate action shall become effective.
(ii) If, at any time, the Company shall pay a dividend or make
a distribution on any class or series of capital stock of the Company
in (A) shares of Common Stock, (B) rights to subscribe for, or any
rights or options to purchase, Common Stock or any other securities
convertible into or exchangeable for Common Stock or (C) securities
convertible into or exchangeable for Common Stock, then the Conversion
Price in effect immediately prior to such event, or, if determined, the
record date therefor, shall be reduced by multiplying such Conversion
Price by a fraction, the numerator of which shall be the number of
shares of Common Stock theretofore outstanding and the denominator of
which shall be the sum of (x) the number of shares of Common Stock
theretofore outstanding and (y) the total number of shares of Common
Stock issued or issuable in connection with such dividend or
distribution. Such adjustment shall become effective as of the earlier
of the record date or effective date for such dividend or distribution.
Maker:_______
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(iii) If the Common Stock issuable upon the conversion of this
Note shall be changed into the same or a different number of shares of
any class or classes of stock, whether by capital reorganization,
reclassification or otherwise (other than a subdivision or combination
of shares provided for in Section 4(d)(i), a stock dividend provided
for in Section 4(d)(ii) or a consolidation, merger or sale of assets
provided for in Section 4(d)(iv) hereof), then, in each such event, the
Holder of this Note shall have the right thereafter to convert such
share into the kind and amount of shares of stock or other securities
or property receivable by holders of Common Stock upon such
reorganization, reclassification or other change on the basis of the
number of shares of Common Stock into which this Note would have been
converted immediately prior to such reorganization, reclassification or
change. Such adjustment shall be made successively whenever any such
event shall occur as described herein.
(iv) In the event of any consolidation or merger of the
Company or the sale of all or substantially all of the assets of the
Company, then, and in such event, this Note shall thereafter be
convertible into the kind and amount of shares of stock or other
securities or property to which a holder of the number of shares of
Common Stock deliverable upon conversion of this Note would have been
entitled immediately prior to such consolidation, merger or sale. In
such case, appropriate adjustment (as determined in good faith by the
Board) shall be made in the application of the provisions set forth in
this Section 4(d) with respect to the rights thereafter of the Holder
of this Note so that the provisions set forth in this Section 4(d)
shall thereafter be applicable, as nearly as reasonably may be, in
relation to any shares of stock or other securities or property
thereafter deliverable upon the conversion of this Note. Such
adjustment shall be made successively whenever any such event shall
occur as described herein.
(v) If, at any time, the Company shall pay or make any
dividends or other distributions (including, without limitation, any
evidences of indebtedness, shares of capital stock of any class or
series or other securities or assets) on the Common Stock, other than
dividends or distributions referred to in Section 4(d)(ii), then, and
in each such case, the Conversion Price in effect immediately prior to
such event, or if determined, the record date therefor, shall be
adjusted so that the Holder of this Note surrendered for conversion
shall be entitled to receive such dividends or other distributions
which such Holder would have owned or have been entitled to receive
after the occurrence of any of the above-mentioned events if this Note
had been surrendered for conversion immediately prior to the happening
of such event or, if determined, the record date therefor. Such
adjustment shall become effective as of the earlier of the record date
or effective date of the event.
(e) NOTICES OF ADJUSTMENTS. Upon the occurrence of each adjustment of
the Conversion Price, the Company, at its expense, shall promptly compute such
adjustment in accordance with the terms hereof and prepare and furnish to the
Holder of this Note a certificate, prepared by the chief financial officer of
the Company, showing (A) such adjustment or readjustment and stating, in detail,
the facts upon which such adjustment or readjustment shall be based, (B) the
Conversion Price at the time in effect and (C) the number of shares of Common
Stock and the amount, if any, of other securities or property which at the time
would be received upon the conversion of this Note.
Maker:_______
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(f) ISSUANCE OF NOTE SHARES. The conversion shall be deemed effective
as of the Effective Date. As soon as practicable after the Effective Date, the
Company will instruct its transfer agent to issue and deliver to the Holder, a
certificate(s) for the number of Note Shares to which the Holder shall be
entitled as aforesaid and will deliver to the Holder such other securities or
dividends or distributions to which the Holder is entitled to receive pursuant
to the terms of this Note. As of the Conversion Date, (i) the Holder shall be
deemed to have become the holder of record of the number of Note Shares issuable
upon the conversion, (ii) this Note shall become void and of no effect, and
(iii) interest on this Note shall cease to accrue. In addition to the foregoing,
at the time that the Company delivers the certificate representing the Note
Shares to the Holder, the Company shall also pay in cash to the Holder all
accrued and unpaid interest on the Note.
(g) NO FRACTIONAL SHARES. No fractional Note Shares shall be issuable
upon conversion of this Note. If the conversion of this Note would result in the
issuance of a fractional share of Common Stock, such fractional share shall be
rounded up to the nearest whole share of Common Stock.
(h) ISSUE TAXES. The Holder shall pay any and all issue and other taxes
that may be payable in respect of any issue or delivery of Note Shares.
5. DEFAULT
(a) DEFAULT. The occurrence of any one or more of the following events
shall constitute an event of default (each an "Event of Default") hereunder:
(i) if the Company becomes insolvent or makes an assignment
for the benefit of creditors;
(ii) if there shall be filed by or against the Company any
petition for any relief under the bankruptcy laws of the United States
now or hereafter in effect or any proceeding shall be commenced with
respect to the Company under any insolvency, readjustment of debt,
reorganization, dissolution, liquidation or similar law or statute of
any jurisdiction now or hereafter in effect (whether at law or in
equity), provided that in the case of any involuntary filing or the
commencement of any involuntary proceeding against the Company such
proceeding or petition shall have continued undismissed and unvacated
for 90 days; or
(iii) if any petition or application to any court or tribunal,
at law or in equity, shall be filed by or against the Company for the
appointment of any receiver for the Company or any material part of the
property of the Company, provided that in the case of any involuntary
filing against the Company, such proceeding or appointment shall have
continued undismissed and unvacated for 90 days; or
(iv) if the Maker shall fail for any reason to make any
payment of principal and interest hereunder when due; provided,
however, that Maker shall have five business days to make such payment
after the Holder provides written notice to the Maker that such payment
was not received by the Holder.
Maker:_______
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(b) REMEDIES UPON DEFAULT. If any Event of Default shall occur for any
reason, then and in any such event, in addition to all rights and remedies of
the Holder under applicable law or otherwise, all such rights and remedies being
cumulative, not exclusive and enforceable alternatively, successively and
concurrently, the Holder may, at its option, declare any or all amounts owing
under this Note to be due and payable, whereupon the then unpaid balance hereof,
together with all accrued and unpaid interest thereon, shall forthwith become
due and payable.
6. OTHER PROVISIONS RELATING TO RIGHTS OF THE HOLDER OF THIS NOTE
(a) RIGHTS OF THE HOLDER OF THIS NOTE. This Note shall not entitle the
Holder to any of the rights of a shareholder of the Company, including, without
limitation, the right to vote, to receive dividends and other distributions, or
to receive any notice of, or to attend, meetings of shareholders or any other
proceedings of the Company. This Section 6(a) shall not affect the rights of the
Holder in its capacity as a shareholder of the Company upon conversion of this
Note and issuance to the Holder of the Note Shares pursuant to Section 4.
(b) LOST, STOLEN, MUTILATED OR DESTROYED NOTE. If this Note shall be
mutilated, lost, stolen, or destroyed, the Company shall execute and deliver, in
exchange and substitution for and upon cancellation of a mutilated Note, or in
lieu of or in substitution for a lost, stolen, or destroyed Note, a new Note for
the principal amount of this Note so mutilated, lost, stolen, or destroyed but
only upon receipt of evidence (which may consist of a signed affidavit of the
Holder), of such loss, theft, or destruction of such Note, and of the ownership
thereof, and indemnity, if requested, all reasonably satisfactory to the
Company.
(c) PERMITTED ASSIGNMENTS. This Note shall not be assignable by the
Holder.
7. SECURITIES LAW COMPLIANCE
(a) RESTRICTIONS ON TRANSFER. The Holder and the Company understand
that each of (i) the conversion this Note and (ii) the ability of the Company to
issue the Note Shares is subject to full compliance with the provisions of all
applicable securities laws and the availability thereunder of an exemption from
registration, and that the certificates evidencing the Note Shares, shall bear a
legend substantially to the effect of the legend on the first page hereof.
(b) COMPLIANCE WITH LAWS. The Holder agrees to comply with all
applicable laws, rules and regulations of all federal and state securities
regulators, including but not limited to, the Securities and Exchange
Commission, the National Association of Securities Dealers, Inc., and applicable
state securities regulators with respect to disclosure, filings and any other
requirements resulting in any way from the issuance or conversion of this Note.
(c) REPRESENTATIONS OF THE COMPANY. The Company is a corporation duly
organized, validly existing, and in good standing under the laws of the State of
Florida and has full corporate power and authority to execute and perform this
Note. This Note has been duly and validly authorized, executed and delivered by
the Company and constitutes the valid and
Maker:_______
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binding obligation of the Company enforceable against it in accordance with its
terms. The execution, delivery, and performance of this Note will not (a)
violate in any material respect any federal, state, county, or local law, rule,
or regulation applicable to the Company or its properties, or (b) violate or
conflict with any provision of the certificate of incorporation or bylaws of the
Company. No action, consent, or approval of, or filing with, any federal, state,
county, or local governmental authority is required in connection with the
execution, delivery or performance of this Note by the Company. On the Effective
Date, the Note Shares will be duly authorized by the Company, validly issued,
fully paid, and nonassessable. None of such Note Shares will be issued by the
Company to the Holder in violation of any preemptive or preferential rights of
any person.
8. OTHER MATTERS
(a) BINDING EFFECT; ASSIGNMENT. The provisions of this Note shall be
binding upon and inure to the benefit of the parties hereto and the successors
and assigns of the Company.
(b) MODIFICATION; WAIVER. This Note may be amended, modified,
superseded, canceled, renewed or extended, and the terms hereof may be waived,
only by a written instrument signed by the Company and the Holder. Any waiver by
the Company or the Holder of a breach of any provision of this Note shall not
operate as or be construed to be a waiver of any other breach of such provision
or of any breach of any other provision of this Note. The failure of the Company
or the Holder to insist upon strict adherence to any term of this Note on one or
more occasions shall not be considered a waiver or deprive that party of the
right thereafter to insist upon strict adherence to that term or any other term
of this Note. No delay on the part of any party in exercising any right, power
or privilege hereunder shall operate as a waiver thereof or hereof, nor shall
any waiver on the part of any party of any right, power or privilege hereunder
preclude any other or further exercise hereof or the exercise of any other
right, power or privilege hereunder. Any waiver must be in writing. The rights
and remedies provided herein are cumulative and are not exclusive of any rights
or remedies which any party may otherwise have at law or in equity.
(c) NOTICES. Any notice or other communication required or permitted to
be given hereunder shall be in writing and shall be mailed by certified mail,
return receipt requested, or delivered against receipt if to (i) the Company, to
Empire Financial Holding Company, 0000 Xxxx Xxxxx Xxxx 000, Xxxxxxxx, Xxxxxxx
00000 and (ii) the Holder, to _________________________________________________
(or to such other address as the party shall have furnished in writing in
accordance with the provisions of this Section 10(d)). Any notice or other
communication given by certified mail shall be deemed given at the time of
certification thereof, except for a notice changing a party's address which
shall be deemed given at the time of receipt thereof.
(d) SEVERABILITY. If any provision of this Note is invalid, illegal, or
unenforceable, the balance of this Note shall remain in effect, and if any
provision is inapplicable to any person or circumstance, it shall nevertheless
remain applicable to all other persons and circumstances. The rate of interest
on this Note is subject to any limitations imposed by applicable usury laws.
Maker:_______
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(e) HEADINGS. The headings in this Note are solely for convenience of
reference and shall be given no effect in the construction or interpretation of
this Note.
(f) GOVERNING LAW. This Note shall be governed by and construed in all
respects under the laws of the State of Florida, without reference to its
conflict of laws rules or principles.
IN WITNESS WHEREOF, the Company has caused this Note to be executed on
its behalf by the undersigned officer thereunto duly authorized.
EMPIRE FINANCIAL HOLDING COMPANY
By: _________________________
Xxxxxx X Xxxxxxxxx Xx.
President
Maker:_______
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