Exhibit
10.21 Form of Note
THIS
NOTE, THE SHARES OF COMMON STOCK AND/OR OTHER SECURITIES ISSUABLE UPON
CONVERSION OF THIS NOTE (THE “SECURITIES”)
HAVE BEEN ACQUIRED FOR INVESTMENT PURPOSES ONLY AND MAY NOT BE TRANSFERRED UNTIL
(i) A REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933, AS AMENDED
(THE “SECURITIES
ACT”) SHALL HAVE BECOME EFFECTIVE WITH RESPECT THERETO OR
(ii) RECEIPT BY THE COMPANY OF AN OPINION OF COUNSEL REASONABLY
SATISFACTORY TO THE COMPANY TO THE EFFECT THAT REGISTRATION UNDER THE SECURITIES
ACT IS NOT REQUIRED IN CONNECTION WITH SUCH PROPOSED TRANSFER NOR IS IN
VIOLATION OF ANY APPLICABLE STATE SECURITIES LAWS. THIS LEGEND SHALL BE ENDORSED
UPON ANY NOTE ISSUED IN EXCHANGE FOR THIS NOTE AND ANY SECURITIES ISSUABLE UPON
CONVERSION OF THIS NOTE.
ANPATH
GROUP, INC.
8%
Subordinated Convertible Promissory Note
Note No.:
[__] [___________], 200_
FOR VALUE
RECEIVED, Anpath Group,
Inc., a Delaware corporation (collectively with all of its Subsidiaries,
the “Company”)
with its principal executive office at 116 Morlake Drive, Suite 201,
Mooresville, North Carolina 28117, promises to pay to the order of
[________________], (the “Holder”),
or registered assigns, the principal amount of [____________dollars ($_______)]
(the “Principal
Amount”), plus accrued interest thereon, 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, which sum shall be due and payable on the
Maturity Date (as defined below). Interest on this Note shall accrue and be
payable in accordance with Section 3
hereof.
This Note is one of a series of similar
Notes issued in connection with the Company’s private placement (the “Offering”)
of its units (“Units”),
each Unit consisting of (i) a Note in the aggregate principal amount of $10,000
and (ii) a Warrant to purchase 20,000 shares of common stock of the Company on a
50 Unit ($500,000) minimum and a 500 Unit ($5,000,000) maximum
basis. In the Offering, the Company sold its securities to
“accredited investors” pursuant to Subscription Agreements by and between the
Company and the Investors named therein (the “Subscription
Agreements”). In addition to the terms defined elsewhere in
this Note, capitalized terms that are not otherwise defined herein have the
meanings given to such terms in the Subscription Agreements.
Each
payment by the Company pursuant to this Note shall be made without set-off or
counterclaim and in immediately available funds. Any amounts which
become due and payable pursuant to this Note on a day that is not a Business Day
(as hereafter defined) shall be due and payable on the first Business Day after
such date. For purposes of this Note, “Business
Day” means any day that is not a Saturday, a Sunday or a day on which
banks are required or permitted to be closed in the State of North
Carolina.
The
Company (i) waives presentment, demand, protest or notice of any kind in
connection with this Note and (ii) agrees, in the event of an Event of
Default (as defined below), to pay to the Holder of this Note, on demand, all
costs and expenses (including legal fees and expenses) incurred in connection
with the enforcement and collection of this Note.
Exhibit
10.21 Form of Note
Maturity. This Note together with
all fees and expenses (if any), and accrued, but unpaid interest thereon, shall
be immediately due and payable on [_______, 200_](the date that is the one (1)
year anniversary of the Issue Date (as defined below) of this Note) (the
“Maturity
Date”). In
the event that the Maturity Date falls on a Saturday, Sunday or a holiday on
which banks in the State of North Carolina are closed, the Maturity Date shall
be the first Business Day occurring immediately after such
date.
Prepayment. This
Note may be prepaid by the Company at any time prior to the Maturity Date, in
whole or in part, without any premium or penalty. All such payments
shall be applied first to accrued interest and then to the outstanding Principal
Amount.
Interest.
.109 Interest Rate. The
outstanding Principal Amount shall bear interest at the rate of eight (8%)
percent per annum.
.110 Computation
and Payment of Interest. Interest on the
Principal Amount shall accrue commencing on the date of this Note (the
“Issue
Date”) and shall be due
and payable on the Maturity Date. Interest shall be computed on the
basis of a 360-day year for the actual number of days elapsed from the Issue
Date to the Maturity Date.
Conversion.
.111 Optional
Conversion. Commencing on the Issue
Date and ending on the last Business Day immediately prior to the Maturity Date
(the “Optional
Conversion Period”) and
subject to the limitation provided in Section 5F below, the outstanding Principal
Amount of this Note and all accrued interest may be converted into shares (the
“Conversion
Shares”) of the
Company’s common stock, par value $0.0001 (the “Common Stock”) at any time and from time to time,
at the then effective Optional Conversion Price (as defined below) at the sole
discretion of the Holder of this Note, by delivering to the Company this Note
(or an affidavit of lost Note, together with an applicable bond, all in form and
substance reasonably satisfactory to the Company and its legal counsel) with a
written notice (the “Optional Conversion
Notice”), in the form of
Exhibit
A annexed
hereto.
.112 Mandatory
Conversion. Notwithstanding anything
to the contrary provided herein or elsewhere, on the Maturity Date, the
outstanding Principal Amount of this Note and all accrued interest shall
automatically convert into Conversion Shares at the then effective Mandatory
Conversion Price (as defined below). The Company will notify
the Holder, in writing, of a Mandatory Conversion and the number of Conversion
Shares to be issued to the Holder pursuant to such Mandatory Conversion (a
“Mandatory
Conversion Notice”)
within five (5) Business Days after the Maturity Date. In the event
that the Holder disputes the number of Conversion Shares to be issued pursuant
to the Mandatory Conversion Notice, within five (5) Business Days of Holder’s
receipt of the Mandatory Conversion Notice, the Holder shall send to the Company
a notice of such dispute which shall include Holder’s calculations and basis for
such dispute (a “Holder’s Notice of
Objection”) and such
dispute shall be resolved in accordance with Section 5H below. In the event of
Mandatory Conversion, the Company shall deliver a certificate or certificates
representing the Conversion Shares in accordance with Section 5E
below. Notwithstanding anything to the contrary provided herein
or elsewhere, except for the provisions regarding delivery of Conversion Shares
pursuant to Section 5E below, this Note shall be deemed
null and void on the Maturity Date.
Conversion
Price. The
price per share at which this Note shall be convertible into Conversion Shares
(the “Conversion Price”), is as follows:
.113 Optional
Conversion Price. During the Optional
Conversion Period, the Principal Amount of this Note and all accrued interest
shall be convertible into Conversion Shares at a Conversion Price equal to $0.50
per share (the “Optional Conversion
Price”), subject to
adjustment from time to time as provided in this Note.
.114 Mandatory
Conversion Price. On the Maturity Date the
Principal Amount of this Note and all accrued interest shall be convertible into
Conversion Shares at a Conversion Price, equal to eighty percent (80%) of the
average Market Price (as defined below) for the twenty (20) Trading Days (as
defined below) immediately preceding the Maturity Date (the “Mandatory Conversion
Price”); provided,
however, and the foregoing notwithstanding, in no event shall the Mandatory
Conversion Price be less than $0.20 per share or more than $0.50 per
share.
.115 Definitions. For purposes
hereof:
.1 “Conversion Date” shall mean the earlier to occur of
(i) date that the Company receives a Conversion Notice and (ii) the Maturity
Date.
.2 “Market Price” for any Trading Day shall mean (a)
if the Common Stock is then quoted on the Over-the-Counter Bulletin Board (the
“Bulletin
Board”) the closing sale
price of one share of Common Stock on the Bulletin Board or such other quotation
system or association or, if no such closing sale price is available, the
average of the high bid and the low asked price quoted thereon(b) if the
Common Stock is then listed on the Nasdaq Market (“Nasdaq”) or another national stock
exchange, the closing sale price of one share of Common Stock on such exchange;
(c) if the Common Stock is then included in the “pink sheets,” the closing
sale price of one share of Common Stock on the “pink sheets”, if no such closing
sale price is available, the average of the high bid and the low ask price
quoted on the “pink sheets”; or (d) if the Common Stock is not then listed
on a national stock exchange or quoted on the Bulletin Board, the “pink sheets”
or such other quotation system or association, the fair market value of one
share of Common Stock as of the Conversion Date, as determined in good faith by
the Board of Directors of the Company.
Exhibit
10.21 Form of Note
.3 “Principal Market” means the Bulletin Board and shall
also include the NYSE Alternext (formerly known as the American Stock Exchange)
or Nasdaq, whichever is at the time the principal trading exchange or market for
the Common Stock, based upon share volume.
.4 “Trading Day” means any day during which the
Principal Market shall be open for business.
.116 Conversion Shares Issuable
Upon Conversion. The number of Conversion Shares to be issued
upon conversion of this Note shall be determined by dividing (i) the outstanding
Principal Amount plus all accrued and unpaid interest thereon to be converted by
(ii) the Conversion Price, in effect at the time of conversion.
.117 Conversion
Mechanics.
.1 Surrender of Note Upon
Optional Conversion. In order to convert all or any
portion of the Principal Amount of this Note (and accrued and unpaid interest
thereon) into Conversion Shares pursuant to an Optional Conversion, the Holder
shall be required to physically surrender this Note (or an affidavit of lost
Note, together with an applicable bond, all in form and substance reasonably
satisfactory to the Company and its legal counsel) along with a Conversion
Notice to the Company (at its principal place of business) as a condition
precedent to receive a certificate or certificates representing the Conversion
Shares.
.2 Surrender of Note Upon
Mandatory Conversion. In the event of a Mandatory Conversion,
the Holder shall be required to physically surrender this Note (or an affidavit
of lost Note, together with an applicable bond, all in form and substance
reasonably satisfactory to the Company and its legal counsel) no later than five
(5) business days after the Maturity Date, to the Company (at its principal
place of business) as a condition precedent to receive a certificate or
certificates representing the Conversion Shares.
.3 Delivery
of Conversion Share Certificates Upon Conversion. Upon receipt by the Company of this
Note (or an affidavit of lost Note, together with an applicable bond, all in
form and substance reasonably satisfactory to the Company and its legal counsel)
and provided this Note has been converted in accordance with the requirements of
this Note, the Company shall promptly issue and deliver (and in any event within
three (3) Business Days following the date the Company receives the
documentation necessary to effect the conversion, including any documentation
required under Section 5H below) or cause to be issued and
delivered to or upon the order of the Holder a certificate or certificates
representing the Conversion Shares.
.118 Limitation
on Optional Conversion. Notwithstanding anything
to the contrary contained herein, the number of Conversion Shares that may be
acquired by the Holder upon an Optional Conversion of this Note shall be limited
to the extent necessary to insure that, following such conversion (or other
issuance), the total number of shares of Common Stock then beneficially owned by
such Holder and its affiliates and any other persons whose beneficial ownership
of Common Stock would be aggregated with the Holder’s for purposes of Section
13(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), does not exceed 4.9% (the
“Maximum
Percentage”) of the
total number of issued and outstanding shares of Common Stock (including for
such purpose the Conversion Shares issuable upon such exercise) (the
“Conversion
Limit”). For such
purposes, beneficial ownership shall be determined in accordance with Section
13(d) of the Exchange Act and the rules and regulations promulgated thereunder.
This restriction may not be waived. In the event that the number of
Conversion Shares to be issued will cause the Holder’s ownership of Common Stock
to exceed the Conversion Limit, the Principal Amount of this Note to be
converted shall be reduced such that the number of Conversion Shares to be
issued shall not cause the Holder to exceed the Conversion Limit and the Company
shall issue the Holder a new Note, for the portion of the Principal Amount that
was not converted to Conversion Shares.
.119 Sale or Transfer of
Conversion Shares. Conversion Shares may not be sold or
transferred unless (i) such Conversion Shares are sold pursuant to an
effective registration statement under the Securities Act or (ii) the Company or
its transfer agent shall have been furnished with an opinion
of counsel (which opinion shall be in form, substance and scope
customary for opinions of counsel in comparable transactions) to the effect that
the shares to be sold or transferred may be sold or transferred pursuant to an
exemption from such registration. Each certificate for
Conversion Shares that has not been sold pursuant to an effective registration
statement or that has not been sold pursuant to an exemption that permits
removal of the legend, shall bear a legend substantially in the following form,
as appropriate:
“THE
SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED. THE SECURITIES MAY NOT BE SOLD,
TRANSFERRED OR ASSIGNED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT
FOR THE SECURITIES UNDER SAID ACT, OR AN OPINION OF COUNSEL IN FORM, SUBSTANCE
AND SCOPE CUSTOMARY FOR OPINIONS OF COUNSEL IN COMPARABLE TRANSACTIONS, THAT
REGISTRATION IS NOT REQUIRED UNDER SAID ACT UNLESS SOLD PURSUANT TO RULE 144 OR
REGULATION S UNDER SAID ACT.”
.120 Dispute
Resolution. In the case of any dispute with respect to the
number of Conversion Shares to be issued upon conversion of this Note, the
Company shall promptly issue such number of Conversion Shares that is not
disputed and shall submit the disputed determinations or arithmetic calculations
to the Holder via fax (or, it the Holder has not provided the Company with a fax
number, by overnight courier) within five (5) Business Days of receipt of: (i)
in the case of an Optional Conversion, the Holder’s Optional Conversion Notice
and (ii) in the case of a Mandatory Conversion, the Holder’s Notice of
Objection. If the Holder and the Company are unable to agree as to
the determination of the Conversion Price within five (5) Business Days of such
disputed determination or arithmetic calculation being submitted to the Holder,
then the Company shall in accordance with this Section, submit via facsimile the
disputed determination to its independent auditor. The Company shall
cause its independent auditor to perform the determinations or calculations and
notify the Company and the Holder of the results promptly, in writing and in
sufficient detail to give the Holder and the Company a clear understanding of
the issue. The determination by the Company’s independent auditor
shall be binding upon all parties absent manifest error. The Company
shall then on the next Business Day instruct its transfer agent to issue
certificate(s) representing the appropriate number of Conversion Shares in
accordance with the independent auditor’s determination and this
Section. The prevailing party shall be entitled to reimbursement of
all fees and expenses of such determination and calculation.
Exhibit
10.21 Form of Note
Certain
Adjustments. The
Conversion Price in effect at any time and the number and kind of securities
issuable upon conversion of this Note shall be subject to adjustment from time
to time upon the happening of certain events as follows:
.121 Adjustment
for Stock Splits and Combinations. If the Company at any time or from
time to time on or after the Issue Date effects a stock split or subdivision of
the outstanding Common Stock, the Conversion Price then in effect immediately
before such stock split or subdivision shall be proportionately
decreased. If the Company at any time or from time to time effects a
reverse stock split or combines the outstanding shares of Common Stock into a
smaller number of shares, the Conversion Price then in effect immediately before
such reverse stock split or combination shall be proportionately
increased. Any adjustment under this Section 6A shall become effective at the
close of business on the date the subdivision or combination becomes
effective.
.122 Adjustment
for Certain Dividends and Distributions. If the Company at any time or from
time to time on or after the Issue Date makes or fixes a record date for the
determination of holders of Common Stock entitled to receive, a dividend or
other distribution payable in additional shares of Common Stock, then and in
each such event the Conversion Price then in effect shall be decreased as of the
time of such issuance or, in the event such record date is fixed, as of the
close of business on such record date, by multiplying the Conversion Price then
in effect by a fraction (1) the numerator of which is the total number of shares
of Common Stock issued and outstanding immediately prior to the time of such
issuance or the close of business on such record date and (2) the denominator of
which shall be the total number of shares of Common Stock issued and outstanding
immediately prior to the time of such issuance or the close of business on such
record date plus the number of shares of Common Stock issuable in payment of
such dividend or distribution; provided, however, that if such record date is fixed
and such dividend is not fully paid or if such distribution is not fully made on
the date fixed therefor, the Conversion Price shall be recomputed accordingly as
of the close of business on such record date and thereafter the Conversion Price
shall be adjusted pursuant to this Section 6B as of the time of actual payment of
such dividends or distributions.
.123 Adjustments
for Other Dividends and Distributions. In the event the Company at any
time or from time to time on or after the Issue Date makes, or fixes a record
date for the determination of holders of Common Stock entitled to receive, a
dividend or other distribution payable in securities of the Company other than
shares of Common Stock, then and in each such event provision shall be made so
that the Holder of this Note shall receive upon conversion thereof, in addition
to the number of shares of Common Stock receivable thereupon, the amount of
securities of the Company which the Holder would have received had this Note
been converted into Common Stock on the date of such event and had Holder
thereafter, during the period from the date of such event to and including the
conversion date, retained such securities receivable by the Holder as aforesaid
during such period, subject to all other adjustments called for during such
period under this Section 6 with respect to the rights of the
Holder of this Note.
.124 Adjustment
for Reclassification, Exchange and Substitution. In the event that at any time or
from time to time on or after the Issue Date, the Common Stock issuable upon the
conversion of this Note is changed into the same or a different number of shares
of any class or classes of stock, whether by recapitalization, reclassification
or otherwise (other than a subdivision or combination of shares or stock
dividend or a reorganization, merger, consolidation or sale of assets, provided
for elsewhere in this Section 6), then and in any such event the
Holder of this Note shall have the right thereafter upon conversion of this Note
to receive the kind and amount of stock and other securities and property
receivable by holders of Common Stock upon such recapitalization,
reclassification or other change, that the Holder would have received if this
Note had been converted to Conversion Shares immediately prior to such
recapitalization, reclassification or change, all subject to further adjustment
as provided herein.
.125 Adjustment
for Reorganizations, Mergers, Consolidations or Sales of Assets. If at any time or from time to time
on or after the Issue Date there is a capital reorganization of the Common Stock
(other than a recapitalization, subdivision, combination, reclassification or
exchange of shares provided for elsewhere in this Section 6) or a merger or consolidation of the
Company with or into another corporation, or the sale of all or substantially
all of the Company’s properties and assets to any other person, then, as a part
of such reorganization, merger, consolidation or sale, provision shall be made
so that the Holder of this Note shall thereafter be entitled to receive upon
conversion of this Note the number of shares of stock or other securities or
property to which a holder of the number of shares of Common Stock deliverable
upon conversion would have been entitled on such capital reorganization, merger,
consolidation, or sale. In any such case, appropriate adjustment shall be made
in the application of the provisions of this Section 6 with respect to the rights of the
Holder of this Note after the reorganization, merger, consolidation or sale to
the end that the provisions of this Section 6 (including adjustment of the
Conversion Price then in effect and the number of shares to be received upon
conversion of this Note) shall be applicable after that event and be as nearly
equivalent as may be practicable.
.126 Adjustment for Sale of
Shares Below Conversion Price.
.1 In the event the Company shall at any
time issue Additional Stock (as defined below) at a price per share less than
the Conversion Price then in effect or without consideration (a “Trigger Issuance”) then the Conversion Price then in
effect upon each such Trigger Issuance shall be adjusted to a price determined
as follows:
Exhibit
10.21 Form of Note
Conversion Price = (A x B) +
D
A +
C
Where:
“A” equals the number of shares of
Common Stock outstanding, including Additional Stock deemed to be issued
hereunder, immediately preceding such Trigger Issuance;
“B” equals the Conversion Price in
effect immediately preceding such Trigger Issuance;
“C” equals the number of shares of
Additional Stock issued or deemed issued hereunder as a result of the Trigger
Issuance; and
“D” equals the aggregate consideration,
if any, received or deemed to be received by the Company upon such Trigger
Issuance,
provided,
however,
that in no event shall the Conversion Price after giving effect to such Trigger
Issuance be greater than the Conversion Price immediately prior to such Trigger
Issuance.
.2 “Additional
Stock” shall mean Common
Stock or options, warrants or other rights to acquire or securities convertible
into or exchangeable for shares of Common Stock, including shares held in the
Company’s treasury, and shares of Common Stock issued upon the exercise of any
options, rights or warrants to subscribe for shares of Common Stock and shares
of Common Stock issued upon the direct or indirect conversion or exchange of
securities for shares of Common Stock, other than Additional
Stock:
.A issued
or issuable upon conversion any Notes issued in connection with the
Offering;
.B issued
or issuable upon the exercise of any Warrants and/or Agent Warrants issued in
connection with the Offering;
.C issued
or issuable upon the conversion or exercise or exchange of options, warrants,
rights and other securities or debt that are outstanding on the Issue
Date;
.D issued
or issuable pursuant to stock option plans which have been approved by the
Company’s directors and shareholders on or prior to the Issue Date;
or
.E issued
or issuable as a result of any anti-dilution in any outstanding securities of
the Company that are outstanding on the Issue Date.
.127 No
Adjustments in Certain Circumstances. No adjustment in the Conversion
Price shall be required unless such adjustment would require an increase or
decrease of at least five ($0.05) cents in such price; provided, however, that any adjustments which by
reason of this Section 6G are not required to be made shall be
carried forward and taken into account in any subsequent adjustment required to
be made hereunder. All calculations under this Section 6 shall be made to the nearest cent or
to the nearest one-hundredth of a share, as the case may be.
.128 Certificate
as to Adjustments. Upon
the occurrence of each adjustment or readjustment of the Conversion Price
pursuant to this Section 6, the Company at its expense shall
promptly compute such adjustment or readjustment in accordance with the terms
hereof and furnish to each holder of a Note a certificate setting forth such
adjustment or readjustment and showing in detail the facts upon which such
adjustment or readjustment is based. The Company shall, upon the written request
at any time of any holder of a Note, furnish or cause to be furnished to such
holder a like certificate setting forth such adjustments and
readjustments.
Covenants
of Company. The Company covenants
and agrees that, so long as this Note shall be outstanding, it will perform the
obligations set forth in this Section 7:
.129 Reservation of
Shares. The Company agrees at all times to reserve and hold
available out of its authorized but unissued shares of Common Stock the number
of shares of Common Stock issuable upon the full exercise of this
Note. The Company further covenants and agrees that all Conversion
Shares that may be delivered upon the conversion of this Note will, upon
delivery, be fully paid and nonassessable and free from all taxes, liens and
charges with respect to the purchase thereof hereunder.
.130 Maintenance of
Existence. The Company will do or cause to be done all things reasonably
necessary to preserve and keep in full force and effect its existence as a
corporation, and comply with all laws applicable to the Company, except where
the failure to comply would not have a material adverse effect on the
Company;
.131 Maintenance of
Property. The Company will at all times maintain, preserve, protect and
keep its property used or useful in the conduct of its business in good repair,
working order and condition, and from time to time make all needful and proper
repairs, renewals, replacements and improvements thereto as shall be reasonably
required in the conduct of its business;
.132 Insurance. The
Company will, to the extent necessary for the operation of its business, keep
adequately insured by financially sound reputable insurers, all property as
shall be reasonably required in the conduct of its business;
Exhibit
10.21 Form of Note
.133 Notice of Certain
Events. The Company will give prompt written notice (with a description
in reasonable detail) to the Holder:
.1 the
occurrence of any Event of Default (defined hereafter) or any event which, with
the giving of notice or the lapse of time, would constitute an Event of Default;
and
.2 the
delivery of any notice to the Company effecting the acceleration of any
indebtedness of the Company in excess of $50,000; and
.3 the
occurrence of any litigation, arbitration or governmental investigation or
proceeding not previously disclosed by the Company to the Holder in writing
which has been instituted against the Company or to which any of its properties,
assets or revenues is subject which, if adversely determined, would reasonably
be expected to have a material adverse effect on the Company.
Events of
Default.
.134 The term “Event of Default” shall mean any of the events set
forth in this Section 8A:
.1 Non-Payment of
Obligations. The Company shall default in the payment of the Principal
Amount or accrued interest on this Note as and when the same shall become due
and payable, whether by acceleration or otherwise.
.2 Non-Performance
of Covenants. The
Company shall default in the due observance or performance of any covenant set
forth in Section 8, which default shall continue
uncured for five (5) Business Days.
.3 Bankruptcy, Insolvency,
etc. The Company shall:
.A admit
in writing its inability to pay its debts as they become due;
.B apply
for, consent to, or acquiesce in, the appointment of a trustee, receiver,
sequestrator or other custodian for the Company or any of its property, or make
a general assignment for the benefit of creditors;
.C in
the absence of such application, consent or acquiesce in, permit or suffer to
exist the appointment of a trustee, receiver, sequestrator or other custodian
for the Company or for any part of its property;
.D permit
or suffer to exist the commencement of any bankruptcy, reorganization, debt
arrangement or other case or proceeding under any bankruptcy or insolvency law,
or any dissolution, winding up or liquidation proceeding, in respect of the
Company, and, if such case or proceeding is not commenced by the Company or
converted to a voluntary case, such case or proceeding shall be consented to or
acquiesced in by the Company or shall result in the entry of an order for
relief; or
.E take
any corporate or other action authorizing, or in furtherance of, any of the
foregoing.
.4 Termination of Business;
Dissolution. The termination of the Company’s business and/or
the dissolution of the Company.
.135 Action if
Bankruptcy; or Termination of Business or Dissolution. If any Event of Default described
in clauses (iii)(a) through (e), or (iv) of Section 8A shall occur, the outstanding
Principal Amount, all accrued but unpaid interest and all other obligations
under this Note shall automatically be and become immediately due and payable,
without notice or demand.
.136 Action if Other Event of
Default. If any Event of Default (other than any Event of Default
described in clause B immediately preceding) shall occur for any reason, whether
voluntary or involuntary, and be continuing, the Holder may, upon notice to the
Company, declare all or any portion of the outstanding Principal Amount,
together with interest accrued on this Note, to be due and payable and any or
all other obligations hereunder to be due and payable, whereupon the full unpaid
Principal Amount hereof, such accrued interest and any and all other such
obligations which shall be so declared due and payable shall be and become
immediately due and payable, without further notice, demand, or
presentment.
Exhibit
10.21 Form of Note
Amendments and
Waivers.
.137 The
provisions of this Note may from time to time be amended, modified or waived, if
such amendment, modification or waiver is in writing and consented to in writing
by the Company and the Holder.
.138 No
failure or delay on the part of the Holder in exercising any power or right
under this Note shall operate as a waiver thereof, nor shall any single or
partial exercise of any such power or right preclude any other or further
exercise thereof or the exercise of any other power or right. No notice to or
demand on the Company in any case shall entitle it to any notice or demand in
similar or other circumstances. No waiver or approval by the Holder shall,
except as may be otherwise stated in such waiver or approval, be applicable to
subsequent transactions. No waiver or approval hereunder shall require any
similar or dissimilar waiver or approval thereafter to be granted
hereunder.
.139 To
the extent that the Company makes a payment or payments to the Holder, and such
payment or payments or any part thereof are subsequently for any reason
invalidated, set aside and/or required to be repaid to a trustee, receiver or
any other party under any bankruptcy law, state or federal law, common law or
equitable cause, then to the extent of such recovery, the obligation or part
thereof originally intended to be satisfied, and all rights and remedies
therefor, shall be revived and continued in full force and effect as if such
payment had not been made or such enforcement or setoff had not
occurred.
.140 After any waiver, amendment or
supplement under this Section 9 becomes effective, the Company shall
mail to the Holder a copy thereof.
Subordination. In the event of an Event
of Default described in Section 8A, payment of the Principal Amount, all
accrued and unpaid interest and all other obligations under this Note
(collectively, the “Payments”), shall be subordinated to the
right of payment of all obligations of the Company under the Loan and Security
Agreement dated as of January 8, 2008 by and between the Company and ANPG
Lending LLC (the “Senior Loan
Agreement”), as such
obligations currently exist or as such obligations may be modified, amended or
extended by agreement of the Company and the lender under the Senior Loan
Agreement (the “Senior
Obligations”). In addition, all
Payments shall be subordinated to payment of all Senior
Obligations.
Miscellaneous.
.141 Notice of Certain
Events. All notices, requests, waivers and other
communications made pursuant to this Note shall be in writing and shall be
conclusively deemed to have been duly given (a) when hand delivered to the other
party; (b) when received when sent by facsimile at the address and number set
forth below; (c) two business days after deposit in the U.S. mail with first
class or certified mail receipt requested postage prepaid and addressed to the
other party as set forth below; or (d) the next business day after deposit with
a national overnight delivery service, postage prepaid, addressed to the parties
as set forth below with next-business-day delivery guaranteed, provided that the
sending party receives a confirmation of delivery from the delivery service
provider.
To
Holder:
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To the
Company:
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[Holder
Name]
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· Anpath
Group, Inc.
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[Holder
Address]
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116
Morlake Drive, Suite 201
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Mooresville,
NC 28117
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Attention:
Stephen Hoelscher
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Telephone:
704-658-3350
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Fax:
704-658-3358
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Exhibit
10.21 Form of Note
.142 Parties in Interest.
All covenants, agreements and undertakings in this Note binding upon the Company
or the Holder shall bind and inure to the benefit of the successors and
permitted assigns of the Company and the Holder, respectively, whether so
expressed or not.
.143 Governing
Law. The Company and the Holder hereby expressly and
irrevocably agree that this Note shall be governed by and construed solely and
exclusively in accordance with the laws of the State of New York without regard
to the conflicts of laws principles thereof. The Company and the Holder hereby
expressly and irrevocably agree that any suit or proceeding arising directly
and/or indirectly pursuant to or under this instrument or the consummation of
the transactions contemplated hereby, shall be brought solely in a federal or
state court located in the City, County and State of New York. By its execution
hereof, the parties hereby covenant and irrevocably submit to the in personam jurisdiction
of the federal and state courts located in the City, County and State of New
York and agrees that any process in any such action may be served upon any of
them personally, or by certified mail or registered mail upon them or their
agent, return receipt requested, with the same full force and effect as if
personally served upon them in New York City. The parties hereto waive any claim
that any such jurisdiction is not a convenient forum for any such suit or
proceeding and any defense or lack of in personam jurisdiction
with respect thereto.
.144 Cash Payments. No
fractional shares (or scrip representing fractional shares) of Common Stock
shall be issued upon conversion of this Note. In the event that the conversion
of this Note would result in the issuance of a fractional share of the
Conversion Shares, the Company shall pay a cash adjustment in lieu of such
fractional share to the holder of this Note.
.145 Stamp Taxes, etc. The
Company shall pay all documentary, stamp or other transactional taxes
attributable to the issuance or delivery of shares of Conversion Shares, upon
conversion of this Note; provided, however, that the
Company shall not be required to pay any taxes which may be payable in respect
of any transfer involved in the issuance or delivery of any certificate for such
shares in a name other than that of the holder of this Note, and the Company
shall not be required to issue or deliver any such certificate unless and until
the person requesting the issuance thereof shall have paid to the Company the
amount of such tax or shall have established to the Company’s satisfaction that
such tax has been paid.
.146 Waiver of Jury Trial.
THE HOLDER AND THE COMPANY HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE
ANY RIGHTS THEY MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION BASED
HEREON, OR ARISING OUT OF, UNDER, OR IN CONNECTION WITH, THIS NOTE OR ANY OTHER
DOCUMENT OR INSTRUMENT EXECUTED AND DELIVERED IN CONNECTION HEREWITH, OR ANY
COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER VERBAL OR WRITTEN), OR
ACTIONS OF THE HOLDER OR THE COMPANY. THIS PROVISION IS A MATERIAL INDUCEMENT
FOR THE HOLDER’S PURCHASE OF THIS NOTE.
.147 Change; Modifications;
Waiver. No terms of this Note may be amended, waived or modified except
by the express written consent of the Company and the Holder.
.148 Headings. The
headings in this Note are for purposes of convenience in reference only, and
shall not be deemed to constitute a part hereof.
.149 Successors. All
the covenants, agreements, representations and warranties contained in this Note
shall bind the parties hereto and their respective heirs, executors,
administrators, distributes, successors, assigns, and transferees.
[REMAINDER
OF PAGE INTENTIONALLY LEFT BLANK]
Exhibit
10.21 Form of Note
Exhibit
10.21 Form of Note9
IN WITNESS WHEREOF, this Note
has been executed and delivered on the date specified above by the duly
authorized representative of the Company.
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ANPATH GROUP, INC.
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By:
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Name:
Stephen Hoelscher
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Title:
Chief Financial Officer
|
Exhibit
10.21 Form of Note
EXHIBIT
A
Optional Conversion
Notice
________
__, 200_
Anpath
Group, Inc.
116
Morlake Drive, Suite 201
Mooresville,
NC 28117
Attention: Stephen
Hoelscher
Re: Conversion of
Note
Gentlemen:
· You are
hereby notified that, pursuant to, and upon the terms and conditions of the 8%
Subordinated Convertible Promissory Note of Anpath Group, Inc. (the “Company”),
in the principal amount of $_______________ (the “Note”),
held by the undersigned, the undersigned hereby elects to exercise the
undersigned’s Optional Conversion (as such term in defined in the Note) rights,
effective as of the date of this writing.
· The
undersigned hereby represents and warrants to the Company that, after giving
effect to the conversion provided for in this Conversion Notice, the undersigned
(together with its affiliates) will not have beneficial ownership (together with
the beneficial ownership of such person’s affiliates) of a number of shares of
Common Stock which exceeds the Maximum Percentage of the total outstanding
shares of Common Stock as determined pursuant to the provisions of Section 5F of
the Note.
· The
undersigned further represents to the Company that, as of the date of conversion
(i) the shares of Common Stock being acquired pursuant to this Conversion Notice
are being acquired solely for the undersigned’s own account and not as a nominee
for any other party, for investment, and not with a view toward distribution or
resale; and (ii) the undersigned is an “accredited investor” as such term is
defined in Rule 501(a)(1) of Regulation D promulgated by the Securities and
Exchange Commission under the Securities Act.
Please
provide the undersigned with all applicable instructions for the Conversion of
the Note, and issue certificate(s) for the applicable shares of the Common Stock
issuable upon the Conversion, in the name of the person provided
below.
(If the
Holder cannot make the representations required above, because they are
factually incorrect, it shall be a condition to the conversion of the Note that
the Company receive such other representations as the Company considers
necessary, acting reasonably, to assure the Company that the issuance of
securities upon conversion of this Note shall not violate any United States or
other applicable securities laws.)
Please
issue certificate(s) for Common Stock as follows:
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Name
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|
Address
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Social
Security No.
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Exhibit
10.21 Form of Note