EXHIBIT 10.2
NON-RECOURSE SECURED PROMISSORY NOTE
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$2,500,000 October 31, 2006
Dallas, Texas
FOR VALUE RECEIVED, ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ and ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ (each a "Borrower" and
collectively, the "Borrowers"), jointly and severally, hereby unconditionally
promise to pay to the order of Natural Health Trends Corp., a Delaware
corporation, together with its successors and assigns (the "Company"), in lawful
currency of the United States of America, at the Company's offices at ▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, the aggregate principal amount of Two
Million Five Hundred Thousand Dollars ($2,500,000) together with accrued and
unpaid interest on the outstanding principal amount by no later than October 31,
2008 (the "Maturity Date").
SECTION 1. Interest. The outstanding principal amount of this Note
shall bear interest at the rate of six percent (6%) per annum and be computed
based upon a year of 360 days.
SECTION 2. Optional Prepayment; Mandatory Prepayment. (a) At their
option, the Borrowers may prepay at any time all or any part of the principal
amount of, and accrued and unpaid interest on, this Non-Recourse Secured
Promissory Note, without premium or penalty, either (i) in cash, or (ii) by
delivering all or part of the Pledged Shares (as hereinafter defined), in
accordance with Section 5 below.
(b) At its option, the Company may require, on three (3) days prior
written notice to the Borrowers that the Borrowers prepay at any time all or any
part of the principal amount of, and accrued and unpaid interest on, this
Non-Recourse Secured Promissory Note, without premium or penalty either (at the
Borrowers option) (i) in cash, or (ii) by delivering all or part of the Pledged
Shares (as hereinafter defined), in accordance with Section 5 below.
SECTION 3. Pledged Collateral. In order to secure the payment and
performance in full of all of their obligations under this Non-Recourse Secured
Promissory Note, whether existing as of this date or any time thereafter, the
Borrowers hereby pledge and assign to the Company, and grant to the Company a
continuing security interest in, (i) one million eighty-one thousand sixty-six
(1,081,066) shares of the Company's common stock (the "Pledged Shares") and the
certificate(s) representing the Pledged Shares, and (ii) and all dividends,
cash, instruments and other property from time to time received, receivable or
otherwise distributed in respect of, or in exchange for, any or all of the
Pledged Shares (collectively, the "Pledged Collateral").
SECTION 4. Security for Obligations. The pledge and security interest
granted pursuant to this Non-Recourse Secured Promissory Note secures the
payment of all obligations of the Borrowers under (i) this Non-Recourse Secured
Promissory Note and (ii) that certain Indemnification Agreement dated as of the
date hereof among the Borrowers and the Company (all such obligations of the
Borrowers being herein called the "Obligations"); provided however, that the
Pledged Collateral shall not be pledged as a security interest to secure the
payment of the Borrowers obligations under the Indemnification Agreement at any
time following the first anniversary following the date hereof.
SECTION 5. Payment in Pledged Shares; Non-Recourse.
(a) The Borrowers may elect to repay all or part of the outstanding
principal amount and accrued and unpaid interest on this Non-Recourse Secured
Promissory Note by surrendering a certain number of Pledged Shares. To surrender
Pledged Shares, the Borrowers shall deliver a written notice signed by each
Borrower to the Company (a "Surrender Notice") which notice shall set forth the
number of Pledged Shares to be surrendered (the "Surrendered Shares") to the
Company for cancellation and the Fair Market Value (as set forth in Section 6
below) of such Surrendered Shares.
(b) In the event that the Company disagrees with the calculation of
Fair Market Value as set forth in a Surrender Notice, it shall so notify the
Borrowers in writing (the "Response Notice") within ten (10) business days
following its receipt of a Surrender Notice which Response Notice shall explain
the basis for the Company's disagreement with the Fair Market Value calculation
set forth in the Surrender Notice. If the Company fails to deliver a Response
Notice within such ten (10) business day period, it shall note in the books and
records of the Company that this Non-Recourse Secured Promissory Note shall be
reduced by an amount equal to the Fair Market Value of the Surrendered Shares.
(c) The Borrowers shall not be required to repay any amounts due and
owing under this Non-Recourse Secured Promissory Note in excess of the Fair
Market Value of the Pledged Shares surrendered or foreclosed upon hereunder.
SECTION 6. Fair Market Value. Fair Market Value shall mean, with
respect to each Surrender Notice:
(a) If the Company is at the time of such notice a reporting company
under the Securities Exchange Act of 1934, as amended, and its shares of common
stock are traded on the NASD OTC Bulletin Board, The Nasdaq Stock Market, The
American Stock Exchange or The New York Stock Exchange, then the Fair Market
Value of each Surrendered Share shall be equal to the average of the closing
market prices for 20 consecutive trading days prior to the date of the Surrender
Notice. If no sale takes place on any such day on any such exchange, the average
of the closing bid and asked prices on such day as so reported shall represent
the closing market price for that day.
(b) If Section 6(a) above is not applicable, then the Fair Market Value
of each Surrendered Share will be the fair value as determined in good faith by
the Company's Board of Directors.
SECTION 7. Further Assurances. The Borrowers agree that at any time and
from time to time, the Borrowers will promptly execute and deliver all further
instruments and documents, and take all further action, that may be reasonably
necessary, or that the Company may reasonably request, in order to perfect and
preserve any security interest granted or purported to be granted hereby or to
enable the Company to exercise and enforce its rights and remedies hereunder
with respect to any Pledged Collateral.
SECTION 8. Transfers and Other Liens. Each of the Borrowers agrees that
he will not (i) sell, pledge or otherwise dispose of, or grant any option with
respect to, any of the Pledged Collateral or any interest therein without first
receiving written consent for such sale, disposition, or grant from the Company,
(ii) create or permit to exist any lien, security interest, or other charge or
encumbrance upon or with respect to any of the Pledged Collateral, except for
the security interest under this Non-Recourse Secured Promissory Note, or (iii)
enter into any voting agreement or other voting arrangement or grant any proxy,
with respect to the Pledged Collateral, except as contemplated by that certain
Voting Agreement dated as of the date hereof among the Borrowers and the
Company.
SECTION 9. Default, Acceleration. If any of the following events shall
occur (each, a "Default"): (i) the Borrowers shall fail to make any payment due
hereunder when due; or (ii) the Borrowers shall breach in any material respect
any of the covenants herein or in the other Transaction Documents (and such
breach is not cured within ten (10) days following written notice thereof); or
(iii) the Borrowers shall file a petition or enter into any voluntary case under
any bankruptcy or similar law; or (iv) there is commenced against the Borrowers
an involuntary case or other similar proceeding under any bankruptcy or similar
law which remains undismissed for a period of sixty (60) days, then and in any
such event, upon written notice to the Borrowers from the Company, the principal
amount hereof, together with accrued interest thereon and all other amounts due
hereunder, shall become immediately due and payable without any further demand,
presentment, protest, notice of protest, dishonor, notice of dishonor or notice
of any other kind, all of which are hereby expressly waived by the Borrowers.
SECTION 10. Remedies upon Default. (a) Upon a Default, the Company
shall have the right, at its option, to exercise all rights, powers, privileges
and preferences pertaining to the Pledged Collateral and to cause all such
Pledged Collateral to be registered in the Company's name, or in the name of its
nominee. To effectuate the provisions hereof, the Borrowers hereby irrevocably
appoints and constitutes any officer of the Company as ▇▇▇▇▇▇▇▇'s true and
lawful attorney to complete and fill in the stock power delivered in connection
with the Pledged Shares, to take such further action as the Company may deem
necessary to exercise, as a stockholder, all of the rights, title and position
of a stockholder in the Company. Each of the Borrowers further agree that any
transfer of the Pledged Collateral under the provisions of this paragraph and
the exercise by the Company of the rights of a stockholder shall not be deemed a
sale or disposition under the provisions of Article 9 of the Uniform Commercial
Code nor an acceptance of such Pledged Collateral in satisfaction of the
Obligations or any portion thereof.
(b) Each Borrower jointly and severally agree to pay all costs and
expenses incurred by the Company, including all reasonable attorneys' fees, for
(i) the collection of this Non-Recourse Secured Promissory Note and the
indebtedness evidenced hereby, and (ii) the enforcement of the Company's rights
hereunder or under any other instrument creating and collateral security or
guaranty now or hereafter given to secure the obligation evidenced by this
Non-Recourse Secured Promissory Note.
(c) Each and every party liable hereon (whether as maker, endorser,
guarantor, surety or otherwise) hereby: (i) waives presentment, demand, protest,
suretyship defenses and defenses in the nature thereof; (ii) waives any defenses
based upon and specifically assents to any and all extensions and postponements
of the time for payment, changes in terms and conditions and all other
indulgences and forbearances which may be granted by the holder to any party now
or hereafter liable hereunder; (iii) agrees to any substitution, exchange,
release, surrender or other delivery of any collateral now or hereafter held
hereunder and to the addition or release of any other party or person primarily
or secondarily liable; and (iv) agrees to be bound by all of the terms contained
in this Note and in any and all other instruments now or hereafter executed,
evidencing or governing all or nay proportion of any collateral for this Note.
Every party to this Non-Recourse Secured Promissory Note and each such
instrument agrees that the obligations of all such parties shall be joint and
several.
SECTION 11 Amendments. No amendment or waiver of any provision of this
Non-Recourse Secured Promissory Note nor consent to any departure by the
Borrowers herefrom shall in any event be effective unless the same shall be in
writing and signed by the Company, and then such waiver or consent shall be
effective only in the specific instance and for the specific purpose for which
given.
SECTION 12 Addresses for Notices. All notices and other communications
provided for hereunder shall be in writing and shall be given by mail, if to the
Borrowers, to them at the address indicated on the signature page hereof, and if
to the Company, addressed to it at ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇,
Attn: General Counsel, or, as to either party, at such other address as shall be
designated by such party in a written notice to the other party complying as to
delivery with the terms of this Section 13. All such notices and other
communications shall be effective three (3) business days after being deposited
in the mails, postage prepaid, addressed as aforesaid.
SECTION 13 Continuing Security Interest; Transfer of Note. Subject to
the provisions of Section 4 above, this Non-Recourse Secured Promissory Note
shall create a continuing security interest in the Pledged Collateral and shall
remain in full force and effect until payment in full of the Obligations. The
rights and obligations of the Company and the Borrowers hereunder may not be
assigned without the prior written consent of the Company and any purported
assignment shall be null and void.
SECTION 14. Governing Law; Terms. This Non-Recourse Secured Promissory
Note shall be governed by and construed in accordance with the laws of the State
of Delaware, without regard to principles of conflicts of law.
IN WITNESS WHEREOF, the Borrowers have executed this instrument on the
date first above written.
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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▇▇▇▇▇ ▇. ▇▇▇▇▇▇
c/o ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ LLP
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇. ▇▇▇▇▇
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
With a copy to:
▇▇▇▇▇▇ and ▇▇▇▇▇, LLP
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇