Exhibit 10.9 Promissory Note - 9.0% Series A Convertible
Preferred Promissory Note Due October 31, 2001
PROMISSORY NOTE
THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED
UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE
"ACT"), AND MAY NOT BE OFFERED OR SOLD EXCEPT PURSUANT TO
REGISTRATION UNDER THE ACT OR AN EXEMPTION FROM THE
REGISTRATION REQUIREMENTS OF THE ACT AND APPLICABLE STATE
SECURITIES LAWS.
No.__________ US $750,000.00
FLORIDINO'S INTERNATIONAL HOLDINGS INC.
9.0% SERIES A CONVERTIBLE PREFERRED
PROMISSORY NOTE DUE OCTOBER 31, 2001
THIS PROMISSORY NOTE is one of a duly authorized issue of
Promissory Notes of Floridino's International Holdings Inc., a
corporation duly organized and existing under the laws of Florida
(the "Company designated as its Series A Convertible Preferred
Promissory Note Due October 31, 2001, in an aggregate principal
face amount not exceeding Seven Hundred Fifty Thousand Dollars
(U.S. $750,000.00).
FOR VALUE RECEIVED, the Company promises to pay to the
registered holder of this note and its successors and assigns
(the "Holder"), the principal face sum of Seven Hundred Fifty
Thousand ($750,000.00) on October 31, 2001 (the "Maturity Date"),
and to pay interest on the principal sum outstanding, at the rate
of 9.0% per annum due and payable semi-annually pursuant to
paragraph 4(b) herein. Accrual of interest shall commence on the
date hereof and shall continue until payment in full of the
outstanding principal sum has been made or duly provided for.
The interest so payable will be paid to the person in whose name
this Promissory Note (or one or more predecessor Promissory
Notes) is registered on the records of the Company regarding
registration and transfers of the Promissory Notes (the
"Promissory Note Register"); provided, however, that the
Company's obligation to a transferee of this Promissory Note
arises only if such transfer, sale or other disposition is made
in accordance with the terms and conditions of the Securities
Subscription Agreement dated as of October 1, 1999 between the
Company and the Holder (the "Subscription Agreement"). The
principal of, and interest (with the exception of the prepaid
interest set forth in Section 4(b) herein) on, this Promissory
Note are payable in such coin or currency of the United States of
America as at the time of payment is legal tender for payment of
public and private debts, at the address last appearing on the
Promissory Note Register of the Company as designated in writing
by the Holder hereof from time to time. The Company will pay the
outstanding principal due upon this Promissory Note before or on
the Maturity Date, less any amounts required by law to be
deducted or withheld, to the Holder of this Promissory Note no
later than the tenth (10th) day prior to the Maturity Date by
check or on the Maturity Date by wire transfer and addressed to
such Holder at the last address appearing on the Promissory Note
Register. The forwarding of such check or wire transfer shall
constitute a payment of outstanding principal hereunder and shall
satisfy and discharge the liability for principal on this
Promissory Note to the extent of the sum represented by such
check or wire transfer plus any amounts so deducted. Interest
shall be payable in cash pursuant to paragraph 4(b) herein.
This Promissory Note is subject to the following additional
provisions:
1. The Promissory Notes are issuable in denominations of
Fifty Thousand ($50,000.00) Dollars. Each issuance shall be made
in separate and equal parcels to the respective individual
holders. No service charge will be made for the registration or
transfer or exchange, except that transferee shall pay any tax or
other governmental charges payable in connection therewith.
2. The Company shall be entitled to withhold from all
payments of principal of, and interest on, this Promissory Note
any amounts required to be withheld under the applicable
provisions of the United States income tax or other applicable
laws at the time of such payments.
3. This Promissory Note has been issued subject to
investment representations of the original purchaser hereof and
may be transferred or exchanged only in compliance with the
Securities Act of 1933, as amended (the "Act") and applicable
state securities laws. Prior to due presentment for transfer of
this Promissory Note, the Company and any agent of the Company
may treat the person in whose name this Promissory Note is duly
registered on the Company's Promissory Note Register as the owner
hereof for the purpose of receiving payment as herein provided
and for all other purposes, whether or not this Promissory Note
be overdue, and neither the Company nor any such agent shall be
affected or bound by notice to the contrary.
4. (a) The Holder of this Promissory Note shall be
entitled to convert the outstanding principal balance of the Note
into shares of the Company's common stock ("Common Stock" as
follows: after one (1) year from the issuance date, at a
conversion price for each share of Common Stock equal to the
average closing bid price for the five consecutive trading days
prior to the date of conversion, discounted by forty (40%)
percent, as reported by the Over The Counter Bulletin Board
("OTC") (the "Conversion Price"). If the number of resultant
Conversion Shares would as a matter of law or pursuant to
regulatory authority require the Company to seek shareholder
approval of such issuance, the Company shall, as soon as
practicable, take the necessary steps to seek such approval. If
such approval is not received within 30 days then Company shall
be required to redeem the Promissory Note pursuant to paragraph
4(c) herein. Such conversion shall be effectuated by
surrendering the Promissory Notes to be converted (with a copy,
by facsimile or courier, to the Company) to the Company
with the form of conversion notice attached hereto as Exhibit A,
executed by the Holder of this promissory Note evidencing such
Holder's intention to convert this Promissory Note or a
specified portion (as above provided) hereof, and accompanied by
proper assignment hereof in blank. Accrued but unpaid interest
shall be subject to conversion. No fractional shares or scrip
representing fractions of shares will be issued on conversion,
but the number of shares issuable shall be rounded to the nearest
whole share. The transferee or issuee shall execute such
investment representations or other documents as are respectively
required by counsel in order to ascertain the available
registration exemption. The date on which notice of conversion
is given shall be deemed to be the date on which the Holder has
delivered this Promissory Note, with the assignment and
conversion notice duly executed, to the Company or, if earlier,
the date set forth in such notice of conversion if the Promissory
Note is received by the Company within five (5) business days
thereafter. The transferee or issuee shall execute such
investment representations or other documents as are reasonably
required by counsel in order to ascertain the available
registration exemption.
(b) Interest at the rate of 9.0% per annum shall be
payable semi-annually. Upon maturity, in the event this
Promissory Note has not been converted in full, to the extent it
is unconverted, any outstanding principal balance and accrued
interest shall automatically convert as if Notice of Conversion
had been received on the date of maturity in accordance with
paragraph 4(a) herein.
5. No provision of this Promissory Note shall alter or
impair the obligation of the Company, which is absolute and
unconditional, to pay the principal of, and interest on, this
Promissory Note at the time, place, and rate, and in the coin
currency, herein prescribed.
6. The Company hereby expressly waives demand and
presentment for payment, notice of nonpayment, protest, notice of
protest, notice of dishonor, notice of acceleration or intent to
accelerate, and diligence in taking any action to collect amounts
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
as or with respect to the collection of any amount called for
hereunder.
7. If one or more of the following describe "Events of
Default" shall occur and continue for 30 days unless a different
time frame is noted below:
(a) The Company shall default in the payment of
principal or interest on this Promissory Note; or
(b) Any of the representations or warranties made by the
Company herein, in the Subscription Agreement, or in any
certificate or financial or other written statements heretofore
or hereafter furnished by the Company in connection with the
execution and delivery of this Promissory Note or the
Subscription Agreement shall be false or misleading in any
material respect at the time made; or
(c) The Company shall fail to perform or observe, in any
material respect, any other covenant, term, provision, condition,
agreement or obligation of the Company under this Promissory Note
and such failure shall continue uncured for a period of thirty
(30) days after notice from the Holder of such failure; or
(d) The Company shall (1) become insolvent; (2) admit in
writing its inability to pay its debts generally as they mature;
(3) make an assignment for the benefit of creditors or commence
proceedings for its dissolution; or (4) apply for or consent to
the appointment of a trustee, liquidator or receiver for its or
for a substantial part of its property or business; or
(e) A trustee, liquidator or receiver shall be appointed
for the Company or for a substantial part of its property or
business without its consent and shall not be discharged within
thirty (30) days after such appointment; or
(f) Any governmental agency or any court of competent
jurisdiction at the instance of any governmental agency shall
assume custody or control of the whole or any substantial portion
of the properties or assets of the Company and shall not be
dismissed within thirty (30) days thereafter; or
(g) Any money judgment, writ or warrant of attachment,
or similar process, in excess of the aggregate sum of the note
shall be entered or filed against the Company or any of its
properties or other assets and shall remain unpaid, unvacated,
unbonded or unstayed for a period of fifteen (15) days or in any
event later than five (5) days prior to the date of any proposed
sale thereunder; or
(h) Bankruptcy, reorganization, insolvency or
liquidation proceedings or other proceedings for relief under any
bankruptcy law or any law for the relief of debtors shall be
instituted by or against the Company and, if instituted against
the Company, shall not be dismissed within sixth (60) days; or
(i) The Company shall have its Common Stock delisted
from the over-the-counter market; or
(j) The Company shall not deliver the Common Stock
pursuant to paragraph 4(a) herein without restrictive legend
within 3 business days of the date delivery is required
hereunder; or
(k) The Company does not bring current its financial
disclosure and filings with the S.E.C. within ninety (90) days of
the date of this note; or
(l) The Company does not deliver to the Holder proof of
payment of all outstanding fees of the Company's accountants and
consultants, for the preparation of the appropriate S.E.C.
filings which shall bring the Company current; or
(m) The Company, at any time, utilizes the funds
provided by the Holder of this Notes for any reason or purpose
other than the daily operation or the legitimate business
purposes of the Company.
Then, or at any time thereafter, and in each and every such case,
unless such Event of Default shall have been waived in writing by
the Holder (which waiver shall not be deemed to be a waiver of
any subsequent default) at the option of the Holder and in the
Holder's sole discretion, the Holder may consider this Promissory
Note immediately due and payable, without presentment, demand,
protest or (further) notice of any kind (other than notice of
acceleration), all of which are hereby expressly waived, anything
herein or in any note or other instruments contained to the
contrary notwithstanding, and the Holder may immediately, and
without expiration of any period of grace, enforce any and all of
the Holder's rights and remedies provided herein or any other
rights or remedies afforded by law.
8. This Promissory Note represents a secured obligation of
the Company and only the Company pursuant to paragraph 9(b)
herein. However, no recourse shall be had for the payment of the
principal of, or the interest on, this Promissory Note, or for
any claim based hereon, or otherwise in respect hereof, against
any incorporator, shareholder, officer or director, as such,
past, present or future, of the Company or any successor
corporation, whether by virtue of any constitution, liability
being, by the acceptance hereof and as part of the consideration
for the issue hereof, expressly waived and released.
9. The Holder of this Promissory Note, by acceptance
hereof, agrees that this Promissory Note is being acquired for
investment and that such Holder will not offer, sell or otherwise
dispose of this Promissory Note or the Shares of Common Stock
issuable upon exercise thereof except under circumstances which
will not result in a violation of the Act or any applicable state
Blue Sky law or similar laws relating to the sale of securities.
Holder further acknowledges that the securities issued or to be
issued under this transaction are not registered securities and
are subject to restriction on transferability as set forth by
Rule 144 of the Securities Act of 1934.
10. In case any provision of this Promissory Note is held
by a court of competent jurisdiction to be excessive in scope or
otherwise invalid or unenforceable, such provision shall be
adjusted rather than voided, if possible, so that it is
enforceable to the maximum extent possible, and the validity and
enforceability of the remaining provisions of this Promissory
Note will not in any way be affected or impaired thereby.
11. This Promissory Note and the agreements referred to in
this Promissory Note constitute the full and entire understanding
and agreement between the Company and the Holder with respect to
the subject hereof. Neither this Promissory Note nor any term
hereof may be amended, waived, discharged or terminated other
than by a written instrument signed by the Company and the
Holder.
12. This Promissory Note shall be governed by and construed
in accordance with the laws of New York. Holder hereby waives
trial by jury and consents to exclusive jurisdiction and
venue in the State of New York.
13. As set forth herein, the Company shall use all
reasonable efforts to issue and deliver, within seven business
days after the Holder has fulfilled all conditions and submitted
all necessary documents duly executed and in proper form required
for conversion (the "Deadline"), to the Holder or any part
receiving a Promissory Note by transfer from the Holder
(together, a "Holder"), at the address of the Holder on the books
of the Company, a certificate or certificates for the number of
Shares of Common Stock to which the Holder shall be entitled.
The Company understands that a delay in the issuance of the
Shares of Common Stock beyond the Deadline could result in
economic loss to the Holder.
IN WITNESS WHEREOF, the Company has caused this instrument
to be duly executed by an officer thereunto duly authorized.
Dated:___________________
FLORIDINO'S INTERNATIONAL HOLDINGS INC.
By:_____________________________________
EXHIBIT A
NOTICE OF CONVERSION
(To be Executed by the Registered Holder in
Order to Convert the Debenture)
The undersigned hereby irrevocably elects to convert the
above Debenture No. _______ into Shares of Common Stock of
Headstrong Group Inc. (the "Company") according to the conditions
hereof, as of the date written below.
____________________________
Date of Conversion
____________________________
Applicable Conversion Price
____________________________
Signature
Address:
This original Debenture and Notice of Conversion must be received
by the Company by the third business day following the Date of
Conversion.
