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EXHIBIT 10.12
EXHIBIT 10.12. Convertible Promissory Note.
THIS NOTE AND THE SHARES OF COMMON STOCK INTO WHICH IT MAY BE CONVERTED (THE
"SECURITIES") HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "ACT"), OR QUALIFIED UNDER ANY STATE SECURITIES LAWS. NEITHER THE
SECURITIES NOR ANY INTEREST THEREIN MAY BE SOLD, HYPOTHECATED, ASSIGNED OR
OTHERWISE TRANSFERRED IN ANY WAY IN THE ABSENCE OF AN EFFECTIVE REGISTRATION
STATEMENT UNDER THE ACT AND COMPLIANCE WITH APPLICABLE STATE SECURITIES LAWS OR
AN APPLICABLE EXEMPTION UNDER SUCH ACT AND SUCH LAWS.
CONVERTIBLE PROMISSORY NOTE
US $1,000,000
Los Angeles, California Dated: June 14, 2000
FOR VALUE RECEIVED, the undersigned, Virtual Technology Corporation, a
Minnesota corporation (the "Company"), hereby promises to pay to the order of
Corona Viking Group LLC, a Nevada limited liability company (hereinafter called
the "HOLDER") (Corona shall include Corona Viking Group LLC or its nominee), the
principal sum of one million dollars (US $1,000,000) (the "LOAN"), together with
interest from the date of this Promissory Note (this "NOTE") on the unpaid
principal at a rate equal to ten percent (10%) per annum (the "STATED RATE"),
computed as set forth in Section 2. All unpaid principal, together with any then
unpaid and accrued interest and other amounts payable hereunder, shall be due
and payable on September 12, 2000 (the "MATURITY DATE"), subject to extension as
set forth in Section 2.
The following is a statement of the rights of the Holder and the
conditions to which this Note is subject, and to which the Holder hereof, by
acceptance of this Note, agrees:
1. Definitions. As used in this Note, the following capitalized
terms have the following meanings:
(a) "CAPITAL STOCK" means and includes (i) any and all
shares, interests, participations or other
equivalents of or interests in (however
designated) corporate stock, including, without
limitation, shares of preferred or preference
stock, and (ii) all equity or ownership interests
in any Person of any other type.
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(b) "COMMON STOCK" shall mean the common stock, par
value $0.001 per share, of the Company or any
successor class of common stock.
(c) The "COMPANY" includes the corporation initially
executing this Note and any Person that shall
succeed to or assume the obligations of the
Company under this Note.
(d) "CONVERSION PRICE" means $0.25 per share, subject
to adjustment as provided in Section 6(g).
(e) "CONVERTIBLE SECURITIES" means evidences of
indebtedness, shares of Capital Stock or other
Securities which are or may be at any time
convertible into or exchangeable for Additional
Shares of Common Stock. The term "Convertible
Security" means one of the Convertible Securities.
(f) "HOLDER" shall mean the Person specified on the
first paragraph of this Note or any Person who
shall at the time be the registered holder of this
Note.
(g) "NOTE SHARE NUMBER" means at any time the
aggregate number of shares of Common Stock which
may at such time be purchased upon conversion of
this Note, after giving effect to all prior
adjustments and increases to such number made or
required to be made under the terms hereof.
(h) "PERSON" shall mean and include an individual, a
partnership, a corporation (including a business
trust), a joint stock company, a limited liability
company, an unincorporated association, a joint
venture or any other entity or governmental
authority.
(i) "SECURITIES" means any debt or equity securities
of the Company, whether now or hereafter
authorized, any instrument convertible into or
exchangeable for Securities or a Security, and any
option, Note or other right to purchase or acquire
any Security. "Security" means one of the
Securities.
2. Payment of Holder's Costs Payment of Principal and Interest;
Default Rate; Acceleration of Maturity Date.
(a) The Company may elect to extend the Note for all or any portion of
an additional ninety (90) days, and in no event shall the Maturity Date be
extended to later than December 11, 2000 (the "EXTENDED MATURITY DATE").
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(b) All interest due hereunder shall be computed on the basis of a
year of 360 days for the actual number of days elapsed. Unless accelerated as
provided in this Note, interest shall be payable on the Maturity Date.
(c) The Company may at any time prepay all or part of the principal
balance due under this Note, without notice or the payment of any penalties or
prepayment fees.
(d) Except as provided in the immediately following paragraph, all
payments received by Holder under this Note shall be credited first to any
charges or other expenses for which Holder is entitled to payment hereunder,
next to accrued but unpaid interest, and third to unpaid principal.
(e) Notwithstanding anything to the contrary set forth in this Note,
if, at any time until payment in full of all amounts due Holder hereunder, the
amount payable under the Stated Rate by the Company pursuant to this Note
exceeds the amount payable under the highest rate of interest permissible under
any law which a court of competent jurisdiction shall, in a final determination,
deem applicable hereto (the "MAXIMUM LAWFUL RATE"), then in such event and so
long as the Maximum Lawful Rate would be so exceeded, the rate of interest
payable hereunder shall be equal to the amount payable under the Maximum Lawful
Rate; provided, however, that if at any time thereafter the Stated Rate is less
than the Maximum Lawful Rate, the Company shall continue to pay interest
hereunder at the Maximum Lawful Rate until such time as the total interest
received by Holder hereunder is equal to the total interest which Holder would
have received had the Stated Rate been (but for the operation of this paragraph)
the interest rate payable since the date hereof. Thereafter, the interest rate
payable hereunder shall be the Stated Rate unless and until the Stated Rate
again exceeds the Maximum Lawful Rate, in which event this paragraph shall again
apply. In no event shall the total interest payable by the Company hereunder
exceed the amount payable under the Maximum Lawful Rate. In the event that a
court of competent jurisdiction shall make a final determination that Holder has
received interest hereunder in excess of the amount payable under the Maximum
Lawful rate, Holder shall, to the extent permitted by applicable law, promptly
apply such excess in the following order: (i) then due and payable fees and
expenses; (ii) then due and payable interest payments; (iii) then due and
payable principal payments on the Loan; (iv) then to any other unpaid
obligations of the Company to Holder under this Note; and (v) thereafter as a
refund to the Company or as a court of competent jurisdiction may otherwise
order.
(f) Subject to the provisions set forth above, any amounts not paid
when due shall thereafter bear interest at a rate equal to the maximum permitted
under state law and in no event, no more than 14%, compounded quarterly.
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3. Manner of Payment.
Principal and interest on the Loan, and all other amounts payable
hereunder, are payable in lawful currency of the United States of America in
immediately available funds, and the Company shall deliver all such payments to
Holder, payable to Holder at 11111 Santa Monica Blvd., Suite 850, Los Angeles,
CA 90025, or at such other place as may be designated in writing by Holder.
4. No Additional Financing Until Note is Repaid; Priority and
Subordination Agreement.
For the time during which the Note and any amounts hereunder remain
unpaid or until such time as the Note is converted the following shall apply:
(a) The Company covenants that it shall not obtain, accept or incur
any debt or financing, whether secured or unsecured, which is or may be senior
to the obligations evidenced by this Note, including all principal, interest,
payments and costs due hereunder until such time as the Note hereunder has been
repaid in full or the Holder has converted the Note; provided however, that this
covenant shall not be applicable to the security position of any party who has,
prior to the date of this Note, filed a financing statement on Form UCC-1
securing a debt (including, without limitation, that certain UCC-1 filed by
Coast Business Credit in Minnesota, filing number 2104942). The Company
represents and warrants that except as set forth in Schedule 1 attached hereto,
there is no other debtor or other financing that has been obtained, accepted or
incurred by the Company to date which is or may be considered senior to that of
the Note hereunder.
(b) The Company covenants that it will use its best efforts to obtain
the necessary approval from Coast Business Credit to permit the Holder to file a
financing statement on Form UCC-1 on or before June 26, 2000, including
assistance in negotiating a subordination agreement between Coast Business
Credit and Holder. Holder agrees to negotiate in good faith with Coast Business
Credit a subordination agreement and will execute such an agreement if it is
reasonably satisfactory to Holder, in its sole discretion. The Company agrees to
immediately execute a Form UCC-1 which will be held in escrow by Holder's
counsel until June 26, 2000. Thereafter, whether or not a subordination
agreement is executed by Coast Business Credit and Holder, Holder shall be
entitled to record the Form UCC-1. The Company may make a written request of
Holder for one extension of the June 26, 2000 deadline for a period of two
additional weeks, provided that if the Company incurs, obtains or accepts during
that extension period any debt senior to that of Holder or that listed on
Schedule 1, the Holder shall have the right to immediately record the Form
UCC-1, the Extended Maturity Date shall be accelerated, and the Company shall be
in default under the provisions of this Note.
(c) The Company covenants that it will not enter into any transaction
or series of related transactions other than the transactions contemplated
herein involving the sale, lease
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(other than in the ordinary course of business), exchange, transfer, license
(other than in the ordinary course of business), or disposition of more than 10%
of the assets of the Company.
5. Events of Default/Remedies.
(a) Events of Default. Any of the following events shall constitute an
"EVENT OF DEFAULT":
(1) Breach by the Company of any of the Company's obligations or
covenants under this Note; or
(2) The Company (A) becomes insolvent or admits in writing the
Company's inability to pay the Company's debts as they mature, provided however,
that the Company's current working capital deficiency does not constitute a
default, (B) makes any assignment for the benefit of creditors, or (C) applies
for or consents to the appointment of a receiver or trustee for the Company or
for a substantial part of the Company's property or business, or a receiver or
trustee otherwise is appointed and is not discharged within thirty (30) days
after such appointment; or
(3) Any bankruptcy, insolvency, reorganization or liquidation
proceeding or other proceeding for relief under any bankruptcy law or any law
for the relief of debtors is instituted by or against the Company; or
(4) Any of the Company's representations, warranties, covenants,
obligations or agreements made herein, or in any statement or certificate at
anytime give by the Company pursuant to the loan or hereto or in connection with
the loan or herewith is false or misleading in any material respect; or
(5) Any money judgment, writ or notice of attachment, or other
similar process (singly or, if more than one, cumulatively in excess of
$250,000) is entered or filed against the Company or any of the assets of the
Company and (A) remains unvacated, unbonded, unstayed, undismissed or
undisclosed for a period of thirty (30) days or in any event later than five (5)
days before the date of any proposed sale thereunder, or (B) the Company has not
appealed the same in good faith.
(b) Cure. Upon the occurrence of an Event of Default, the Company
shall give Notice to Holder within five (5) business days of the Event of
Default and shall thereafter have a reasonable period, not to exceed thirty (30)
days, to fully cure such default. If the Company fails to cure the default
within thirty days, than the remedies set forth in subsection (c) below shall
apply.
(c) Remedies. Upon the occurrence and during the continuance of an
Event of Default,
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(1) immediately and without notice, all indebtedness under this
Note shall automatically be immediately due and payable, without presentment,
demand or protest, or any other notice of any kind, all of which are expressly
waived;
(2) the unpaid principal balance of this Note shall accrue interest
at a rate equal to the highest rate permitted by law, not to exceed 14%,
compounded quarterly, until the unpaid principal and all other amounts due
hereunder have been repaid;
(3) the Holder shall have the right, in its sole discretion, for a
period of one (1) year from the date of such Event of Default from time to time
and upon written notice to the Company, to convert the amount owed to Holder,
including interest, penalties and costs thereunder (the "OUTSTANDING DEBT"),
into Common Stock of the Company at a price of the lower of (i) one-half the per
share price of the average closing high bid price of the Company's Common Stock
for the ten trading days preceding the date of default, as reported on the
Over-the-Counter Bulletin Board quotation system, or (ii) $0.25, subject to
adjustment set forth in Section 6(g);
(4) Exercise any or all rights provided or permitted by law or
granted pursuant to this Note in such order and in such manner as Holder may, in
its sole judgment, determine.
(d) Additional Shares. In addition to any other remedy which Holder
might exercise upon an Event of Default, the Company and Holder have agreed
that, upon an Event of Default, it would be fair and reasonable for Holder to
receive 100,000 additional shares of the Company's Common Stock for each of the
first three (3) thirty (30) day periods that the Company is in default under the
terms of this Note. Thereafter, Holder shall receive 400,000 additional shares
per month for each successive month for the next nine (9) months that the
Company remains under default under the terms of this Note. Such grant of stock
shall be pro rated for any period less than 30 days. Any shares issued pursuant
to this Section 5(d) shall be subject to the provisions of Section 6(h).
(e) No Waiver of Remedies. No waiver of any breach of or default under
any provision of this Note shall constitute or be construed as a waiver by
Holder of any subsequent breach of or default under that or any other provision
of this Note.
(f) Remedies Not Exclusive. No remedy herein conferred upon Holder is
intended to be exclusive of any other remedy herein or in any other agreement
between the parties hereto or by law provided or permitted, but each shall be
cumulative and shall be in addition to every other remedy given hereunder or now
or hereafter existing at law, in equity or by statute.
6. Conversion of Note. If during the term of this Note or upon an
Event of Default and pursuant to Section 5(c)(3), the Holder elects to convert
all or part of the then
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Outstanding Debt due under this Note into shares of Common Stock of the Company,
the following shall apply:
(a) Automatic Conversion Upon Certain Circumstances. The Outstanding
Debt shall automatically convert into shares of the Company's Common Stock at a
price per share of $.25, subject to adjustment as set forth in Section 6(g),
upon the occurrence of both of the following events: (i) declaration of
effectiveness by the Securities and Exchange Commission of a registration
statement filed under the Securities Act of 1933 covering the shares issuable
upon conversion of this Note, and (ii) upon the closing price per share of the
Company's Common Stock reaching, after such time as the registration statement
has been declared effective, on each of ten consecutive trading days, a price of
no less than $.50 per share. Upon any such conversion, this Note shall
automatically be canceled, terminate and become void, and the indebtedness
thereby shall be deemed satisfied. The Holder shall execute such documents as
may be necessary or convenient to accomplish such effect.
(b) Procedure for Conversion.
(1) If the Holder elects to convert all or part of the Outstanding
Debt, the Holder shall tender an executed Conversion Notice and Certificate in
the form of Exhibit A hereto, to the Company not later than five (5) business
days prior to the requested date of Conversion (the "CONVERSION DATE"). The
Holder shall thereafter surrender the Note to the Company's transfer agent, or
in the event that the Company does not have a transfer agent, to the Company's
appointed counsel. The transfer agent or counsel, as the case may be, shall not
surrender the Note to the Company until such time as the shares due hereunder
have been duly delivered to Holder.
(2) If the Holder elects to convert all or part of the Outstanding
Debt (the "ELECTED AMOUNT"), then the Company shall pay to the Holder all
accrued and unpaid interest until the date the conversion becomes effective and
the Elected Amount shall be converted into Common Stock at the Conversion Price
(as defined below).
(3) In the event that only part of the Outstanding Debt is
converted pursuant to the provisions of this Section 6, the Company at its
expense will execute and deliver to the Holder a new Promissory Note for the
remaining amount, which promissory note shall be substantially similar in form
to this Note. Any unpaid interest that accrues on the remaining outstanding
principal amount prior to the issuance of the new promissory note shall be
deemed to be payable as interest under the new promissory note.
(4) In calculating the amount of Common Stock issuable to the
Holder upon the conversion of this Note, adjustment shall be made for interest,
penalties and costs accrued hereunder or for dividends on any Common Stock
issuable upon any such conversion. The Company shall not issue fractional shares
of Common Stock upon any such conversion, but shall make adjustment therefore in
cash on the basis of the Conversion Price (as defined below) as of the date of
the conversion.
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(c) Conversion Price. The conversion price per share of Common
Stock issuable upon conversion of this Note (the "CONVERSION PRICE") shall be
$0.25 per share, as adjusted pursuant to Section 6(g), and the number of shares
issuable upon exercise of this Note shall be determined by dividing the amount
of this Note being converted by the then applicable Conversion Price, as the
same may be adjusted from time to time as hereinafter set forth.
(d) Reservation of Shares of Capital Stock. The Company shall take
all steps necessary to authorize and reserve a sufficient number of shares of
authorized but unissued shares of Capital Stock of the Company as required to
permit the conversion in full of this Note. The Company shall supply its
transfer agent, if any, with duly executed certificates required to honor this
Note upon conversion in accordance with its terms and shall provide or otherwise
make available any cash which may be payable in lieu of fractional shares.
(e) Payment of Taxes. The Company shall pay all taxes with respect
to the issue of any and all shares which may be issued upon the conversion of
this Note (other than Holder's income taxes and taxes in respect to any transfer
occurring contemporaneously with such issue).
(f) Fully Paid Stock. The Company covenants and agrees that all
shares which may be issued upon the conversion of this Note will, upon issuance,
sale, delivery and payment therefor in accordance with this Note, be validly
issued, fully paid and non-assessable and free from all preemptive rights of any
shareholder of the Company and all taxes, liens and charges with respect to the
issue thereof (other than taxes in respect to any transfer occurring
contemporaneously with such issue).
(g) Adjustment of Conversion Price. For the duration of the
existence of the Note and for a period of six (6) months thereafter, if the
Company issues any shares of its Common Stock at a price which, on a fully
diluted basis, is less than the Conversion Price, then the Conversion Price upon
each such issuance shall be adjusted to that price at which the newly issued
shares of Common Stock have been sold (excluded from this adjustment shall be
those shares of Common Stock issuable (i) upon exercise, conversion or exchange
of options, warrants and other rights to acquire, exchange or convert securities
of the Company outstanding on the date hereof (a list of which is attached
hereto as Schedule 2); (ii) upon conversion of this Note, a default hereunder or
the exercise or conversion of any warrant or other rights to acquire securities
issued in connection herewith or issuable upon a default in the Registration
Rights Agreement referred to below or in any side agreement related hereto or
thereto; (iii) for non-cash consideration such as, but not limited to, in
exchange for services rendered or to be rendered to the Company or to facilitate
the settlement of civil actions pending or threatened or judgements entered
against the Company, to the Company's lender's as an inducement to waive any
default of the Company's obligations, provided however that the calculation of
the price per share of any stock issued pursuant to this exception, when
considered in light of the value of the services rendered or the debt or
obligation incurred or being settled, shall not be less than $.25, and provided
further that excluded from this
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calculation shall be settlements currently being negotiated with Lycos and CNET;
and (iv) shares issued pursuant to the acquisition between the Company and
BuyItNow.com, Inc.).
(h) Stock Splits, Stock Dividends, etc. If at any time after the
date hereof the number of shares of Common Stock outstanding is increased or
decreased by a stock dividend, stock split, reverse stock split,
reclassification or otherwise, the number of shares of Common Stock issuable
upon exercise of this Note and the Conversion Price shall be appropriately
increased or decreased, as the case may be, in proportion to such increase or
decrease in outstanding shares. If the Conversion Price shall be adjusted the
Company shall prepare and mail to the holder hereof a certificate setting forth
the event requiring the adjustment, the amount of the adjustment, the method by
which the adjustment was calculated, and (after giving effect to the adjustment)
the Conversion Price.
(i) Preservation of Purchase Rights upon Reclassification,
Consolidation, etc. In case of any consolidation of the Company with or merger
of the Company into another corporation or in case of any sale or conveyance to
another corporation of the property, assets or business of the Company as an
entirety or substantially as an entirety, the Company or such successor or
purchasing corporation, as the case may be, shall execute with the Holder an
agreement that the Holder shall have the right thereafter upon conversion at the
Conversion Price in effect immediately prior to such action to purchase, upon
conversion of the Note, the kind and amount of shares and other securities and
property which it would have owned or have been entitled to receive after the
happening of such consolidation, merger, sale or conveyance had the Note (and
such underlying securities) been converted immediately prior to such action. In
the event of a merger described in Section 368(a)(2)(E) of the Internal Revenue
Code of 1986, in which the Company is the surviving corporation, the right to
convert the Note and acquire shares of Common Stock shall terminate on the date
of such merger and thereupon the right to convert this Note to acquire shares of
Common Stock shall become null and void, but only if the controlling corporation
shall agree to substitute for the Note its note which entitles the holder
thereof to acquire upon its conversion the kind and amount of shares and other
securities and property which it would have owned or been entitled to receive
had the Note been exercised immediately prior to such merger. The provisions of
this subsection 6(i) shall similarly apply to successive consolidations,
mergers, sales or conveyances.
(j) Other Action Affecting Common Stock. In case after the date of
this Note the Company shall take any action affecting its Common Stock and the
failure to make any adjustment would not fairly protect the purchase rights
represented by this Note in accordance with the essential intent and principle
of this Section 6, then the Conversion Price shall be adjusted in such manner
and at such time as the Board may in good faith determine to be equitable in the
circumstances.
(k) Form of Note after Adjustments. The form of this Note need not
be changed because of any adjustments in the Conversion Price or the number and
kind of securities purchasable upon the exercise of this Note.
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(l) Notice of Adjustments. Whenever the Conversion Price or Note
Share Number shall be adjusted pursuant to Section 6 hereof (for purposes of
this Section 6, each an "ADJUSTMENT"), the Company shall cause its Chief
Financial Officer to prepare and execute a certificate setting forth, in
reasonable detail, the event requiring the Adjustment, the amount of the
Adjustment, the method by which such Adjustment was calculated (including a
description of the basis on which the Board made any determination hereunder),
and the Conversion Price and Note Share Number after giving effect to such
Adjustment, and shall cause copies of such certificate to be delivered to the
Holder of this Note promptly after each Adjustment. Any dispute between the
Company and the Holder of this Note with respect to the matters set forth in
such certificate may at the option of the Holder of this Note be submitted to
one of the national accounting firms currently known as the "big five" selected
by the Holder, provided that the Company shall have 10 days after receipt of
notice from such Holder of its selection of such firm to object thereto, in
which case such Holder shall select another such firm and the Company shall have
no such right of objection. The firm selected by the Holder of this Note as
provided in the preceding sentence shall be instructed to deliver a written
opinion as to such matters to the Company and such Holder within 30 days after
submission to it of such dispute. Such opinion shall be final and binding on the
parties hereto. The fees and expenses of such accounting firm shall be paid by
the Company.
(m) Fractional Interests; Current Market Price. The Company shall
not be required to issue fractional shares of Common Stock on the conversion of
the Note. If any fraction of a share of Common Stock would be issuable on the
conversion of the Note, the Company shall in lieu thereof pay a cash amount
equal in amount to the product of the applicable fraction multiplied by the Per
Share Market Value then in effect.
(n) No Rights as Stockholder; Notices to Holder. Nothing contained
in this Note shall be construed as conferring upon the Holder or its transferees
any rights as a stockholder of the Company, including the right to vote, receive
dividends, consent or receive notices as a stockholder in respect of any meeting
of stockholders for the election of directors of the Company or any other
matter.
7. Rights and Obligations under the Registration Rights Agreement.
The shares of stock issuable to Holder upon conversion of this Note are entitled
to the benefits and subject to the terms of the Registration Rights Agreement
dated as of even date herewith between the Company and the Holder (as amended
from time to time, the "REGISTRATION RIGHTS AGREEMENT"). The Company shall keep
or cause to be kept a copy of the Registration Rights Agreement, and any
amendments thereto, at its chief executive office and shall furnish, without
charge, copies thereof to the Holder upon request.
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8. Additional Representations, Warranties, Covenants and Agreements.
The Company hereby makes the following covenants, which shall be
deemed to be continuing covenants until payment in full of all indebtedness of
the Company to Holder arising under this Note:
(a) The Company is a corporation duly organized, validly existing and
in good standing under the laws of the state of Minnesota with corporate power
and authority to own, lease and operate its properties, to carry on its business
as presently conducted and consummate the transactions contemplated hereby, and
is duly qualified to do business as a foreign corporation and is on good
standing in each jurisdiction (domestic, foreign or otherwise) (i) in which the
conduct of its business requires such qualification and (ii) in which it owns
and leases property; except with respect to any compliance which will not have a
material adverse effect on the business or operations of the Company.
(b) The execution, delivery and performance by the Company of this
Note and the consummation of the transactions contemplated hereby have been duly
authorized by all requisite corporate action; this Note has been duly executed
and delivered by the Company; and this Note is the valid and binding obligation
of the Company, enforceable against the Company in accordance with its terms,
subject to bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium and similar laws of general applicability relating to or affecting
creditors' rights and to general equity principles.
(c) The execution, delivery and performance of this Note and
compliance with the provisions hereof by the Company, do not and will not (i)
violate any law or statute or order, judgement or decree of any court or other
governmental authority or agency applicable to the Company or its properties or
assets, (ii) conflict in any respect with or result in any breach of any of the
terms or provisions that constitute a default under the Company's Certificate of
Incorporation or Bylaws, or any note, indenture, mortgage, lease agreement or
other agreement, contract or instrument to which the Company is a party or by
which it or its properties or assets may be bound or affected, or (iii) result
in the creation or imposition of any lien, encumbrance or other restriction upon
any of the properties or assets of the Company.
(d) The Company agrees to furnish to Holder, promptly upon request,
such other information relating to the affairs, the operations and/or the
financial condition of the Company as Holder may from time to time reasonably
request, subject to a separate agreement covering confidential information not
otherwise publicly available.
(e) The Company shall promptly notify Holder in writing of the
occurrence of any act or event including, without limitation, the commencement
or threat of any action, suit, claim or proceeding against or investigation of
the Company, which could materially and adversely affect the Company or which
could impair the validity, effectiveness or enforceability of, or impair the
Company's ability to perform its obligations under, this Note,
<PAGE> 12
and of the occurrence of any Event of Default or any event which with the giving
of notice, the lapse of time, or both, would become and Event of Default and the
action the Company proposes to take with respect thereto.
(f) The Company shall, at any time and from time to time, upon the
written request of Holder, execute and deliver to Holder such further documents
and instruments and do such other acts and things as Holder may reasonably
request in order to effectuate fully the purpose and intent of this Note.
(g) The Company shall promptly pay and discharge all lawful taxes,
assessments, and governmental charges or levies imposed upon the Company or upon
its income or profits, or upon any of its property, before the same shall become
in default, as well as all lawful claims for labor, materials and supplies
which, if unpaid, might become a lien or charge upon such properties or any part
thereof. The Company shall not be required to pay or discharge those taxes which
it is reasonably contesting.
(h) The Company shall do or cause to be done all things necessary to
preserve and keep in full force and effect its corporate existence, rights and
franchises 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 or any
of its assets or properties.
(i) The Company shall at all times reasonably 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, betterments and improvements
thereto as shall be reasonably required in the conduct of its business.
(j) The Company shall, to the extent necessary for the operation of
its business, keep adequately insured by all financially sound reputable
insurers, all property of a character usually insured by similar corporations
and carry such other insurance as is usually carried by similar corporations.
10. Representations and Warranties of Corona
(a) Investment. The rights hereunder are being acquired by Holder and
any shares issued to Holder pursuant to this Note are for its own account for
investment and not with a view to, or for sale in connection with, any
distribution thereof, nor with any present intention of distributing or selling
the same; and Holder has no present or contemplated agreement, undertaking,
arrangement, obligation, indebtedness or commitment providing for the
disposition thereof.
(b) Authority. Holder has full power and authority to enter into and
to perform this Agreement in accordance with its terms and to consummate the
transactions contemplated hereby. To the extent required, this Agreement has
been duly executed and delivered by Holder and constitutes a valid and binding
obligation, enforceable in accordance with their
<PAGE> 13
respective terms. Holder represents that it has not been organized, reorganized
or recapitalized specifically for the purpose of investing in the Company.
(c) Experience. Holder has carefully reviewed the representations
concerning the Company contained in this Agreement, has made detailed inquiry
concerning the Company, its business and its personnel and has reviewed the
Company's filings with the Securities and Exchange Commission, including the
risk factors described in the Company's most recently filed annual report on
Form 10-K. The officers of the Company have made available to Holder any and all
written information that it has requested and have answered to Holder's
satisfaction all inquiries made by it. Holder has adequate net worth and means
of providing for its current needs and contingencies to sustain a complete loss
of its investment in the Company. Holder's overall commitment to investments
such as this which are not readily marketable is not disproportionate to its net
worth and Holders loan hereunder will not cause such overall commitment to
become excessive.
(d) Accredited Status. Holder is a limited liability company not
formed for the purpose of making an investment in the Company's Securities. All
of Holder's equity owners are individual "accredited investors" within the
meaning of Rule 501(a) of the Securities Act of 1933, as amended. Holder's
equity owners and managers have a pre-existing personal or business relationship
with the Company and its executive officers.
11. Waiver.
The Company hereby waives any right of offset the Company may now or
hereafter have against Holder, and the Company hereby also waives diligence,
presentment, protest and demand, notice of protest, dishonor and nonpayment of
this Note and expressly agrees that, without in any way affecting the liability
of the Company hereunder, Holder may extend any maturity date or the time for
payment of any installment due hereunder, accept security, release any party
liable hereunder and release any security now or hereafter securing this Note.
The Company further waives, to the full extent permitted by law, the right to
plead any and all statutes of limitations as a defense to any demand on this
Note, or on any deed of trust, security agreement, lease assignment, guaranty or
other agreement nor or hereafter securing this Note.
12. Choice of Law and Venue; Jury Trial Waiver.
THIS LOAN SHALL BE DEEMED TO HAVE BEEN MADE IN THE STATE OF NEVADA.
THIS AGREEMENT SHALL NOT BE INTERPRETED OR CONSTRUED WITH ANY PRESUMPTION
AGAINST THE PARTY CAUSING THIS AGREEMENT TO BE DRAFTED. THE VALIDITY OF THIS
NOTE, ITS CONSTRUCTION, INTERPRETATION, AND ENFORCEMENT, AND THE RIGHTS OF THE
PARTIES HERETO WITH RESPECT TO ALL MATTERS ARISING HEREUNDER OR RELATED HERETO
SHALL BE DETERMINED UNDER, GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH THE
INTERNAL SUBSTANTIVE LAWS OF THE STATE OF
<PAGE> 14
NEVADA, WITHOUT GIVING EFFECT TO ITS CONFLICT OF LAWS OR CHOICE OF LAWS
PRINCIPLES. THE PARTIES AGREE THAT ALL ACTIONS OR PROCEEDINGS ARISING IN
CONNECTION WITH THIS AGREEMENT SHALL BE TRIED AND LITIGATED ONLY IN THE STATE
AND FEDERAL COURTS LOCATED IN THE COUNTY OF CLARK. EACH OF THE COMPANY AND
HOLDER WAIVES, TO THE EXTENT PERMITTED UNDER APPLICABLE LAW, ANY RIGHT EACH MAY
HAVE TO ASSERT THE DOCTRINE OF FORUM NON CONVENIENS OR TO OBJECT TO VENUE TO THE
EXTENT ANY PROCEEDING IS BROUGHT IN ACCORDANCE WITH THIS SECTION 12. THE COMPANY
AND HOLDER HEREBY WAIVE THEIR RESPECTIVE RIGHTS TO A JURY TRIAL OF ANY CLAIM OR
CAUSE OF ACTION BASED UPON OR ARISING OUT OF THIS NOTE OR ANY OF THE
TRANSACTIONS CONTEMPLATED HEREIN, INCLUDING CONTRACT CLAIMS, TORT CLAIMS, BREACH
OF DUTY CLAIMS, AND ALL OTHER COMMON LAW OR STATUTORY CLAIMS. THE COMPANY AND
HOLDER REPRESENT THAT EACH HAS REVIEWED THIS WAIVER AND EACH KNOWINGLY AND
VOLUNTARILY WAIVES ITS JURY TRIAL RIGHTS FOLLOWING CONSULTATION WITH LEGAL
COUNSEL. IN THE EVENT OF LITIGATION, A COPY OF THIS AGREEMENT MAY BE FILED AS A
WRITTEN CONSENT TO A TRIAL BY THE COURT.
_____________ [Company initials]
_____________ [Corona's initials]
13. Notice.
All notices, requests, consents and demands shall be made in writing
and shall be mailed first class, certified mail, return receipt requested, to
the Company or the Holder at such respective addresses as may be furnished in
writing to the other party hereto.
14. Successors and Assigns. This Note and the rights evidenced hereby
shall inure to the benefit of and be binding upon the successors and assigns of
the Company, the Holder hereof and (to the extent provided herein) the Holders
of shares issuable hereunder, and shall be enforceable by any such Holder.
15. Modification and Severability. If, in any action before any court
or agency legally empowered to enforce any provision contained herein, any
provision hereof is found to be unenforceable, then such provision shall be
deemed modified to the extent necessary to make it enforceable by such court or
agency. If any such provision is not enforceable as set forth in the preceding
sentence, the unenforceability of such provision shall not affect the other
provisions of this Note, but this Note shall be construed as if such
unenforceable provision had never been contained herein.
<PAGE> 15
16. Headings.
Headings used in this Note are inserted for convenience only and shall
not be deemed to constitute a part hereof.
16. Amendments.
This Note and any term or provision hereof may only be changed,
waived, discharged or terminated only by an instrument in writing signed by the
party against which enforcement of such change, waiver, discharge or termination
is sought.
IN WITNESS HEREOF, the Company has executed this Note as of the date
first written above.
The Company:
Virtual Technology Corporation
a Minnesota corporation
By: /s/ Gregory Appelhof
----------------------------------------------
Name: Gregory Appelhof
Title: President and Chief Executive Officer
Holder:
Corona Viking Group LLC
a Nevada limited liability company
By: /s/ David Bergstein
----------------------------------------------
Name: David Bergstein
Title: Manager
<PAGE> 16
EXHIBIT A
Conversion Notice and Certificate
The undersigned hereby elects to convert $_______ of the outstanding
debt under the 10% Promissory Note issued by VIRTUAL TECHNOLOGY CORPORATION,
(the "THE COMPANY") on ___________, 2000 (the "NOTE") into _______ shares of
Common Stock of the Company (the "SHARES") pursuant to the terms of the Note,
and hereby represents and Notes as follows with respect to the Shares:
(a) It is acquiring the Shares for its own account, for investment,
and not with a view to the distribution thereof within the meaning of the
Securities Act of 1933, as amended (the "Securities Act").
(b) It understands that the Shares (i) will not be registered under
the Securities Act, (ii) will be deemed "restricted securities" as defined in
Rule 144 under the Securities act, and (iii) may not be sold or otherwise
transferred unless such sale or other transfer is registered under the
Securities Act or is exempt from such registration.
(c) It is an "accredited investor" as that term is defined in Rule
501(a) under the Securities Act.
(d) If it is a corporation or partnership, it is duly organized and
validly existing under the laws of the state of its organization, and has full
power and authority to execute this Conversion Notice and Certificate.
(e) If is a trust, it is duly organized and validly existing under the
laws of the state of its organization and has full power and authority to
execute this Conversion Notice and Certificate, and its trustee executing this
Conversion Notice and Certificate has full power and authority to act on behalf
of the trust.
(f) Its principal residence (if is a natural person) or its principal
executive office (if it is not a natural person) is in California, and it
received its offer of the Shares in such state.
<PAGE> 17
The undersigned has caused this Conversion Notice and Certificate to
be executed on its behalf as of ___________________, 2000.
By:
Name:
Title:
<PAGE> 18
SCHEDULE 1
SCHEDULE OF PRIORITY DEBT, EQUITY OR OTHER FINANCING
UCC-1 filed by Coast Business Credit.
Dated 2/8/99
Filing Number: 2104942
State of Filing: Minnesota
UCC-1 filed by Crestar Bank
Dated 8/18/97
Filing Number 9708187078
State of Filing: Virginia
UCC-1 filed by Timmerman Leasing, Inc.
Dated 8/17/98
Filing Number: 2061761
State of Filing: Minnesota
UCC-1 filed by Norwest Bank.
Dated 12/7/98
Filing Number: 2088939
State of Filing: Minnesota
UCC-1 filed by Norwest Bank
Dated 7/26/99
Filing Number: 2149960
State of Filing: Minnesota
UCC-1 filed by Norwest Bank
Dated 7/26/99
Filing Number: 2149961
State of Filing: Minnesota
UCC-1 filed by Leasemaster
Dated 2/4/99
Filing Number: 2103886
State of Filing: Minnesota
<PAGE> 19
Virtual Technology Corporation
Schedule of Notes Payable
As of 4/30/00
<TABLE>
<CAPTION>
Date of Balance at
Description Note 4/30/00
----------- ---- -------
<S> <C> <C>
Coast Business Credit
- Line of Credit 2/11/99 6,031,003.20
- Note Payable 2/11/99 312,500.00
Herold Marketing Associates 1/28/99 276,670.64
Softdisk, Inc. 12/30/99 70,594.52
AFCO 9/1/99 10,716.42
Colonial (capital lease) 8/7/98 46,226.67
Leasemaster (capital lease) 12/14/98 100.07
6,747,811.52
</TABLE>
