CONFIDENTIAL TREATMENT REQUESTED BY IQROM COMMUNICATIONS, INC.
Exhibit 10.14
LOAN AGREEMENT
THIS LOAN AGREEMENT is made this 6th day of February, 2001, by and
between iQrom COMMUNICATIONS, INC., a Nevada corporation ("Borrower") and ▇▇▇▇▇
▇▇▇▇▇▇▇ ("Allmark"), ▇▇▇▇▇▇ ▇▇▇▇▇ ELEK ("Elek"), ALDERSEY EGERTON ▇▇▇▇▇▇▇-▇▇▇▇▇▇
("▇▇▇▇▇▇▇-▇▇▇▇▇▇") and POV US, LLC, a Delaware limited liability company ("POV")
(referred to individually as a "Lender" and jointly as the "Lenders").
BACKGROUND
A. Borrower desires to borrow One Million Dollars ($1,000,000.00) to
pay certain operating expenses in connection with its business under the terms
and conditions set forth herein.
B. The Lenders are willing to lend a total of One Million Dollars
($1,000,000) to Borrower, subject to the terms and conditions hereof, and to
receive shares of Common Stock of the Borrower if the loan is not paid prior to
the Conversion Date described herein. Each of the Lenders is a shareholder of
the Borrower and is familiar with the business affairs and financial condition
of the Borrower.
Borrower and the Lenders, intending to be legally bound, agree as
follows:
SECTION 1
DEFINITIONS
1.1 Definitions. When used in this Agreement, the following
terms shall have the respective meanings set forth below.
"Accounts" means all of the Borrower's present and future
accounts, chattel paper, instruments and documents, and all other rights to the
payment of money, including but not limited to any specific property described
below, whether or not yet earned, for services rendered or goods sold,
consigned, leased or furnished by the Borrower, together with all general
intangibles, guaranties and securities relating to any of the foregoing, and all
returned, reclaimed or repossessed goods the sale, consignment, lease or other
furnishing of which shall have given or may give rise to any of the foregoing,
including, without limitation, the right of stoppage in transit.
"Agreement" means this Loan Agreement and all exhibits and
schedules hereto, as each may be amended, modified, restated or supplemented
from time to time.
CONFIDENTIAL TREATMENT REQUESTED BY IQROM COMMUNICATIONS, INC.
"Borrower" means iQrom Communications, Inc., a Nevada
corporation.
"Business Day" means a day other than Saturday, Sunday or
other day in which commercial banks in Philadelphia, Pennsylvania or Orlando,
Florida, are authorized or required by law or executive order to close.
"Event of Default" means an event described in subsection
8.1 hereof.
"GAAP" means generally accepted accounting principles set
forth in the Opinions of the Accounting Principles Board of the American
Institute of Certified Public Accountants and in statements of the Financial
Accounting Standards Board and in such other statements by such other entity as
Borrower may request and as Lenders may reasonably approve, which are applicable
in the circumstances as of the date in question; and consistent application of
GAAP means such principles observed in a current period are comparable in all
material respects to those applied in a preceding period.
"Loan" means the outstanding principal balance of the Note
advanced under Section 2 of this Agreement, together with interest accrued
thereon and fees and expenses incurred in connection therewith, if any.
"Loan Documents" means collectively, this Agreement, the
Note, the Escrow Agreement and any additional documents, instruments, agreements
and other writings executed pursuant to or in connection with this Agreement or
the Loan.
"Maturity Date" means the date on which the Loan is
payable in full in accordance with the terms of the Note and as set forth in
subsection 2.2 hereof.
"Note" means the Promissory Note in the form of Exhibit B
attached hereto to be delivered by the Borrower to the Lenders pursuant to
subsection 2.2 hereof, as the same may be amended or modified or extended or
restated from time to time.
"Prime Rate" means the rate of interest announced by
SunTrust Bank from time to time as its prime rate which is not necessarily the
lowest rate of interest charged by the bank.
"Proportionate Share" means the portion of the Loan
provided by each Lender as set forth in subsection 2.1.
CONFIDENTIAL TREATMENT REQUESTED BY IQROM COMMUNICATIONS, INC.
SECTION 2
LOAN FACILITIES
2.1 The Loan. The Lenders shall lend to the Borrower the sum
of $1,000,000 which shall be used by Borrower as working capital. Each Lender
shall provide a Proportionate Share (as defined below) of the Loan as follows:
Allmark [Confidential Information filed separately with the
Securities and Exchange Commission
Elek [Confidential Information filed separately with the
Securities and Exchange Commission]
▇▇▇▇▇▇▇-▇▇▇▇▇▇ [Confidential Information filed separately with the
Securities and Exchange Commission]
POV [Confidential Information filed separately with the
Securities and Exchange Commission]
Proportionate Share shall mean that portion of the Loan as the amount
contributed by each Lender bears to the total amount of the Loan and shall be
expressed by the percentages listed above. Each Lender shall effect wire
transfer instructions in order to pay its Proportionate Share within two
Business Days after the date of this Agreement to an account to be established
by Fox, Rothschild, O'Brien & ▇▇▇▇▇▇▇, LLP, as escrow agent (the "Escrow Agent")
or as otherwise directed by the Escrow Agent, in accordance with the terms of
the Escrow Agreement attached hereto as Exhibit A.
2.2 Promissory Note. Borrower's obligation to repay the sum
loaned to Borrower by the Lenders under the Loan will be evidenced by a Note
executed by the Borrower in favor of the Lenders in the form of Exhibit B
hereto. The Note shall (i) be in the principal amount of $1,000,000; (ii) be
dated the date of this Agreement; (iii) bear interest on the outstanding
principal balance of all sums advanced on the Note from time to time at the
Prime Rate plus two percent (2%) per annum which shall be payable in arrears on
the Maturity Date; and (iv) provide that the entire balance of principal and all
accrued interest shall be due and payable on the Maturity Date which shall be
that date which is the earlier to occur of: (i) May 8, 2001 (the "Conversion
Date"), or (ii) the receipt by iQrom of the proceeds of the Equity Placement
described in subsection 5.1.
2.3 Drawdown of Loan.The Borrower may request disbursement of
the Loan in one or more installments (each, a "Draw") at any time after the date
of this Agreement by delivery to the Escrow Agent of a written request signed by
the Borrower (the "Drawdown Notification") or in the alternative a telephone
request followed promptly by written confirmation of the request, specifying the
date and amount of the Draw to be made. Each request shall be received not less
than two Business Days prior to the date of the proposed Draw. No request shall
be effective until actually received in writing by the Escrow Agent. On the date
specified in the Drawdown Notification, the Escrow Agent will make funds
immediately available to the Borrower by wire transfer to the account designated
by the Borrower in the Drawdown Notification. Each Draw shall be in an amount at
least equal to $250,000 or, if greater, then in such minimum amount plus $50,000
multiples, except for a final Draw which will exhaust the full remaining amount
of the Loan which may be in an amount equal to the remaining amount of the Loan.
The remaining amount of the Loan shall be automatically disbursed by the Escrow
Agent to the Borrower two Business Days before the Conversion Date as a final
Draw.
CONFIDENTIAL TREATMENT REQUESTED BY IQROM COMMUNICATIONS, INC.
2.4 Payments. All required payments of principal and interest
by the Borrower under the Loan Documents shall be made to the Escrow Agent at
the address listed below.
Fox, Rothschild, O'Brien & ▇▇▇▇▇▇▇, LLP
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇
[Confidential Information filed separately with the
Securities and Exchange Commission]
The Escrow Agent shall distribute to each Lender his or its Proportionate Share
of any payments of principal or interest received from the Borrower within two
(2) Business Days following receipt of such payment. Payments shall be made to
each Lender at the address or account listed on Exhibit C.
SECTION 3
CONVERSION OF LOAN INTO UNITS
3.1 Conversion Into Units. Unless the Loan is repaid in full
prior to the Conversion Date, the principal amount of the Loan, including any
final Draw as described in subsection 2.3 (the "Principal Amount"), shall be
automatically converted as of the Conversion Date into the units (the "Units")
described below. All accrued and unpaid interest on the Principal Amount shall
be paid to the Lenders as of the Conversion Date. The Borrower shall issue the
Units within five Business Days following the Conversion Date. Each Lender shall
receive his or its Proportionate Share of the Units issued upon conversion.
3.2 Units. Each Unit shall consist of one share of Common
Stock of the Borrower and one nontransferable Common Stock Purchase Warrant (the
"Warrant"). Each Warrant shall be exercisable for one share of Common Stock of
the Borrower at an exercise price equal to the price per share determined in
accordance with the Conversion Formula set forth in subsection 3.3, and shall
have a term of three years, all as set forth in the form of Warrant Certificate
attached hereto as Exhibit D.
CONFIDENTIAL TREATMENT REQUESTED BY IQROM COMMUNICATIONS, INC.
3.3 Conversion Formula.
(a) The number of Units to be issued upon conversion shall be
determined using the following formula (the "Conversion Formula"):
Principal Amount divided by the lesser of (i) the average
closing share price of the Borrower's Common Stock over the five trading days
prior to January 17, 2001, less ten percent (10%), which equals $1.00, or (ii)
the average closing share price of the Borrower's Common Stock over the five
trading days prior to the Conversion Date, less ten percent (10%).
(b) The number of Units to be issued shall be calculated by
rounding to the next lowest whole Unit. The Borrower shall not issue fractions
of Units on the conversion of the Note.
3.4 Additional Undertakings. The Borrower and the Lenders
shall execute and deliver such additional agreements, documents and instruments
as shall be reasonably necessary to effect the consummation of the transactions
contemplated hereby and in particular to comply with the Securities Act of 1933,
as amended (the "Securities Act"), and such other laws and regulations
applicable to the issuance of the Units.
SECTION 4
REPRESENTATIONS AND WARRANTIES
The Borrower represents and warrants, as follows:
4.1 Organization and Good Standing. The Borrower is duly
organized, validly existing and in good standing under the laws of the State of
Nevada, has the power and authority to carry on its business as now conducted,
and is qualified to do business in all other states in which the nature of its
business or the ownership of its properties requires such qualification.
4.2 Power and Authority; Validity of Agreement. The Borrower
has the power and authority under the law of the jurisdiction of its
incorporation and under its certificate or articles of incorporation and by-laws
to enter into and perform this Agreement, the Note, and all other Loan Documents
to which it is a party and actions required by it hereunder; and all actions
(corporate or otherwise) necessary or appropriate for such party's execution and
performance of the Loan Documents to which it is a party have been taken, and
upon their execution, the same will constitute the valid and binding obligations
of the Borrower to the extent it is a party thereto, enforceable in accordance
with their respective terms, except to the extent that enforceability thereof
may be limited by bankruptcy, insolvency, reorganization, moratorium or other
similar laws affecting the enforceability of creditors' rights generally and by
general equitable principles (whether enforcement is sought by proceedings in
equity or at law).
CONFIDENTIAL TREATMENT REQUESTED BY IQROM COMMUNICATIONS, INC.
4.3 No Violation of Laws or Agreements. The making and
performance of this Agreement and the other Loan Documents will not violate any
provisions of any law or regulation, federal, state or local, or the certificate
or articles of incorporation and by-laws of the Borrower or result in any breach
or violation of, or constitute a default under, any agreement or instruments by
which the Borrower or its property may be bound.
4.4 Compliance. The Borrower is in compliance in all material
respects with all applicable laws and regulations, federal, state and local,
material to the conduct of its business and operations; the Borrower possesses
all the franchises, permits and licenses necessary or required in the conduct of
its business(es), and the same are valid, binding, enforceable and subsisting
without any material defaults thereunder; and no authorization, consent,
approval, waiver, license or formal exemption from, nor any filing, declaration
or registration with, any court, governmental agency or regulatory authority
(federal, state or local) or non-governmental entity, under the terms of
contracts or otherwise, is required by reason of or in connection with the
Borrower's execution and performance of the Loan Documents.
SECTION 5
AFFIRMATIVE COVENANTS
5.1 Equity Placement. The Borrower covenants and agrees that it will
use its best efforts to obtain the investment of a minimum of $3,000,000 (the
"Equity Placement") in exchange for equity interests in the Borrower. The equity
interests shall consist of such combination of shares of Common Stock and Common
Stock Purchase Warrants (the "Equity Placement Units") as shall be mutually
agreeable to the Borrower and investors other than the Lenders (the "Outside
Investors"). The Equity Placement shall occur no later than [Confidential
Information filed separately with the Securities and Exchange Commission] (the
"Placement Date"). The Borrower shall use its best efforts to obtain
[Confidential Information filed separately with the Securities and Exchange
Commission] (the "Minimum Outside Investment Amount") of the Equity Placement
from Outside Investors. Provided that the Borrower shall have received the
Minimum Outside Investment Amount, the Lenders agree that they shall subscribe
for that number of the Equity Placement Units which equals a total investment by
the Lenders of [Confidential Information filed separately with the Securities
and Exchange Commission] at the average number and average price per share of
Common Stock and the average number and average exercise price for the Common
Stock Purchase Warrants paid by the Outside Investors and on similar terms and
conditions as those received by the Outside Investors. The Placement Date may be
extended upon agreement of the parties hereto.
CONFIDENTIAL TREATMENT REQUESTED BY IQROM COMMUNICATIONS, INC.
5.2 Books and Records. The Borrower covenants and agrees that it will
keep and maintain satisfactory and adequate books and records of account in
accordance with GAAP and make or cause the same to be made available to the
Lenders or their agents or nominees at any reasonable time upon reasonable
notice for inspection.
5.3 Other Information. The Borrower covenants and agrees that it will
provide the Lenders with any other documents and information, financial or
otherwise, reasonably requested by the Lenders from time to time.
SECTION 6
NEGATIVE COVENANTS
On and after the date of this Agreement and so long as the Note remains
outstanding and unpaid, in whole or in part, the Borrower will observe the
following covenants unless the Lenders shall otherwise consent in writing:
6.1 Debt. The Borrower and its subsidiaries will not create, incur,
assume, guarantee or in any manner become or remain liable with regard to any
debt, except;
(a) Debt existing on the date of this Agreement (excluding
debt evidenced by the Note),
(b) the Note,
(c) Debt with regard to accounts payable and other extensions
of trade credit incurred in the ordinary course of business and which is not
more than 90 days overdue, unless the Borrower is contesting, in good faith and
by appropriate proceedings, its obligations to make payment, and has established
such reserve with regard to the contested obligations as its certified public
accountants shall consider adequate,
(d) Debt secured by one or more liens permitted by subsection
6.2 of this Agreement,
(e) Debt for the deferred purchase price or lease of fixed
assets,
(f) Debt with regard to a receivables discounting facility
secured by the Borrower's Accounts.
(g) Debt issued by the Borrower to fund its ongoing capital
requirements consisting of up to $3,000,000 of unsecured subordinated
convertible debentures together with Common Stock Purchase Warrants or other
equity-linked instruments as required.
CONFIDENTIAL TREATMENT REQUESTED BY IQROM COMMUNICATIONS, INC.
6.2 Liens. The Borrower will not create, incur, assume or suffer to
exist any lien upon any of its existing or future, tangible or intangible, real,
personal or mixed property, except:
(a) Liens existing on the date of this Agreement.
(b) Liens upon the property of a subsidiary in favor of the
Borrower which secure debt from the subsidiary to the Borrower,
(c) Purchase money liens and lessor interests under financing
leases securing indebtedness permitted by paragraph (e) of subsection 6.1.
(d) Liens on Accounts securing a receivables discounting
facility permitted by paragraph (f) of subsection 6.1.
(e) Any lien created for the sole purpose of extending,
renewing or refunding any lien permitted under paragraphs (a) through (d), if
such lien is limited to all or part of the same property covered by the original
lien, and if the amount of the debt secured by the lien does not exceed the
amount of debt secured by the lien at the time of extension, renewal or
refunding.
6.3 Loans and Investments. The Borrower will not make any loan to,
capital contribution to or investment in, or endorse, guarantee or otherwise
become liable for the payment or performance of any liabilities or obligations
of, any person or entity other than a subsidiary or affiliate of the Borrower.
SECTION 7
REPRESENTATIONS AND WARRANTIES OF THE LENDERS
Each Lender hereby severally represents and warrants to the Borrower as
follows:
7.1 Investment Representations. The Lender understands that the Units
will not be registered under the Securities Act at the time of issuance. The
Lender also understands that the Units will be offered and sold pursuant to an
exemption from registration contained in the Securities Act based in part upon
the Lender's representations contained in this Agreement.
7.2 Lender Bears Economic Risk. The Lender has substantial experience
in evaluating and investing in private placement transactions of securities in
companies similar to the Borrower so that it is capable of evaluating the merits
and risks of its investment in the Borrower. The Lender must bear the economic
risk of this investment indefinitely unless the Units are registered pursuant to
the Securities Act, or an exemption from registration is available. The Lender
understands that while the Borrower has not undertaken at the present time to
register the Units or any shares of its Common Stock to be issued as part of the
Units, it is the Borrower's expectation that such registration may occur in
connection with the Equity Placement. The Lender also understands that there is
no assurance that any exemption from registration under the Securities Act will
be available and that, even if available, such exemption may not allow the
Lender to transfer all or any portion of the Units under the circumstances, in
the amounts or at the times the Lender might propose.
CONFIDENTIAL TREATMENT REQUESTED BY IQROM COMMUNICATIONS, INC.
7.3 Acquisition for Own Account. The Lender is acquiring the Units for
the Lender's own account for investment only, and not with a view towards their
distribution.
7.4 Lender Can Protect Its Interest. The Lender represents that by
reason of his or its, or of its management's, business or financial experience,
the Lender has the capacity to protect his or its own interests in connection
with the transactions contemplated in this Agreement and the Loan Documents.
Further, the Lender is aware of no publication of any advertisement in
connection with the transactions contemplated in this Agreement.
7.5 Accredited Investor. The Lender represents that it is an accredited
investor within the meaning of Regulation D under the Securities Act.
7.6 Borrower Information. The Lender is familiar with the Borrower's
business and financial affairs and has had an opportunity to discuss the
Borrower's business, management and financial affairs with directors, officers
and management of the Borrower. The Lender has also had the opportunity to ask
questions of and receive answers from the Borrower and its management regarding
the terms and conditions of this investment.
7.7 Rule 144. The Lender acknowledges and agrees that the Units
(including, without limitation, if issued, the shares of Common Stock) must be
held indefinitely unless their resale is subsequently registered under the
Securities Act or an exemption from such registration is available for any such
resale. The Lender has been advised or is aware of the provisions of Rule 144
promulgated under the Securities Act as in effect from time to time, which
permits limited resale of shares purchased in a private placement subject to the
satisfaction of certain conditions, including, among other things: the
availability of certain current public information about the Borrower, the
resale occurring following the required holding period under Rule 144 and the
number of shares being sold during any three-month period not exceeding
specified limitations.
SECTION 8
EVENTS OF DEFAULT; REMEDIES
8.1 Events of Default. Each of the following events shall be an Event
of Default hereunder:
CONFIDENTIAL TREATMENT REQUESTED BY IQROM COMMUNICATIONS, INC.
(a) Failure by the Borrower to pay the principal of, or
accrued interest on, the Note or any other instrument of the Borrower to the
Escrow Agent on behalf of the Lenders when due, or the failure of the Borrower
to pay any other amount payable to the Escrow Agent on behalf of the Lenders
under the Loan Documents within 15 days after such amount becomes due, provided
that no default shall be declared hereunder unless such failures continues for
five (5) days following written notice from the Lenders that such amounts have
not been paid when due;
(b) If any representation or warranty made herein or in
connection herewith or in any statement, certificate or other document furnished
hereunder is false or misleading in any material respect when made, provided
that no default shall be declared hereunder until five (5) days after written
notice of default from the Lenders shall have been given to the Borrower;
(c) Failure by the Borrower to observe or perform any
covenants, conditions or provisions contained in the Loan Documents (other than
those described in paragraph (a) and (b)), provided that such failure shall
continue for a period of 15 days after written notice from the Lenders to the
Borrower; or
(d) If the Borrower: becomes insolvent, bankrupt or generally
fails to pay its debts as such debts become due; is adjudicated insolvent or
bankrupt; admits in writing its inability to pay its debts; shall suffer a
custodian, receiver or trustee for it or substantially all of its property to be
appointed and if appointed without its consent, not be discharged within thirty
(30) days; makes an assignment for the benefit of its creditors; suffers
proceedings under any law related to bankruptcy, insolvency, liquidation or the
reorganization, readjustment or the release of debtors to be instituted against
it and if contested by it not dismissed or stayed within ten (10) days; if
proceedings under any law related to bankruptcy, insolvency, liquidation, or the
reorganization, readjustment or the release of debtors is instituted or
commenced by the Borrower; if any order for relief is entered relating to any of
the foregoing proceedings; if the Borrower shall call a meeting of its creditors
with a view to arranging a composition or adjustment of its debts; or if the
Borrower shall by any act or failure to act indicate its consent to, approval of
or acquiescence in any of the foregoing.
8.2 Remedies.
(a) Upon the occurrence of an Event of Default specified in
paragraphs (a) through (c) of subsection 8.1 of this Agreement, the Lenders may
declare that the Note shall thereafter bear interest at the Default Rate
described therein.
(b) Upon the occurrence of an Event of Default specified in
paragraph (d) of subsection 8.1 of this Agreement, the unpaid principal balance
of all accrued and unpaid interest on, and all other sums payable with regard
to, the Note and all other instruments of obligation of the Borrower to the
Lenders shall automatically and immediately become due and payable, in all cases
without any action on the part of the Lenders.
CONFIDENTIAL TREATMENT REQUESTED BY IQROM COMMUNICATIONS, INC.
8.3 Cumulative Remedies. The rights and remedies provided in the Loan
Documents are cumulative and not exclusive of any rights or remedies provided by
law.
8.4 Additional Remedies Upon Default. Upon the occurrence of any Event
of Default or at any time during the continuance of any Event of Default, the
Lenders may, in addition to the rights specifically granted in this Agreement,
at their election exercise the rights and remedies under the Note or any other
agreements with Borrower.
SECTION 9
MISCELLANEOUS
9.1 Indemnification and Release Provisions. The Borrower hereby agrees
to defend the Lenders and their directors, officers, agents, employees and
counsel from, and hold each of them harmless against, any and all losses,
liabilities (including without limitation settlement costs and amounts, transfer
taxes, documentary taxes, or assessments or charges made by any governmental
authority), claims, damages, interest, judgments, costs, or expenses, including
without limitation reasonable fees and disbursements of counsel, incurred by any
of them arising out of or in connection with or by reason of this Agreement, the
making of the Loan or any other Loan Document. The Borrower hereby releases the
Lenders and their directors, officers, agents, employees and counsel from any
and all claims for loss, damages, costs or expenses caused or alleged to be
caused by any act or omission on the part of any of them. Notwithstanding the
foregoing, the Borrower shall not be required to release, indemnify or hold
harmless the Lenders or their directors, officers, agents, employees or counsel,
from any loss, liabilities, damages, costs or expenses to the extent, but only
to the extent, any of the foregoing is found by a court of competent
jurisdiction to have been caused by the willful misconduct or gross negligence
of the Lenders. All obligations provided for in this subsection 9.1 shall
survive any termination of this Agreement and the repayment of the Loan.
9.2 Binding and Governing Law. This Agreement and all documents
executed hereunder shall be binding and shall inure to the benefit of the
parties hereto and their respective successors and assigns and shall be governed
as to their validity, interpretation and effect by the laws of the State of
Florida.
9.3 Survival. All agreements, representations, warranties and covenants
of the Borrower contained herein or in any documentation required hereunder
shall survive the execution of this Agreement and the making of the Loan
hereunder and, except for subsection 9.1 which provides otherwise, will continue
in full force and effect as long as any indebtedness or other obligation of the
Borrower to the Lenders remains outstanding.
CONFIDENTIAL TREATMENT REQUESTED BY IQROM COMMUNICATIONS, INC.
9.4 No Waiver; Delay. If the Lenders shall waive any power, right or
remedy arising hereunder or under any applicable law, such waiver shall not be
deemed to be a waiver upon the later occurrence or recurrence of any of said
events. No delay by the Lenders in the exercise of any power, right or remedy
shall, under any circumstances, constitute or be deemed to be a waiver, express
or implied, of the same and no course of dealing between the parties hereto
shall constitute a waiver of the Lender's powers, rights or remedies. The
remedies herein provided are cumulative and not exclusive of any remedies
provided by law.
9.5 Modification; Waiver. Except as otherwise provided in this
Agreement, no modification or amendment hereof, or waiver or consent hereunder,
shall be effective unless made in writing signed by appropriate officers of the
parties hereto.
9.6 Headings. The various headings in this Agreement are inserted for
convenience only and shall not affect the meaning or interpretation of this
Agreement or any provision hereof.
9.7 Notices. Any notice, request or consent required hereunder or in
connection herewith shall be deemed satisfactorily given if in writing
(including facsimile transmissions) and delivered by hand, reliable overnight
courier, or mailed (registered or certified mail) to the parties at their
respective addresses or telecopier number set forth below or such other
addresses or telecopier numbers as may be given by any party to the others in
writing:
If to the Borrower: iQrom Communications, Inc.
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telecopier: ▇▇▇-▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇.
Chief Financial Officer
If to Allmark: The Coach House
Pig ▇▇▇▇ ▇▇▇▇, Loxwood
West Sussex, England RH 14 0Q7
Telecopier:
If to Elek: ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇
▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇ 4 HW
Telecopier: ▇▇▇ ▇▇ ▇▇▇▇ 820075
CONFIDENTIAL TREATMENT REQUESTED BY IQROM COMMUNICATIONS, INC.
If to ▇▇▇▇▇▇▇-▇▇▇▇▇▇: Aldersey Egerton ▇▇▇▇▇▇▇-▇▇▇▇▇▇
Crouchlands
Kirdford, Nr. Billingshurst
West Sussex, England RH 14 0LE
Telecopier:
If to POV: ▇▇▇▇▇▇▇ ▇▇▇▇
Westgate Management Company, Inc.
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to: ▇▇▇▇ ▇. ▇▇▇▇▇, Esquire
Fox, Rothschild, O'Brien & ▇▇▇▇▇▇▇, LLP
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telecopier (▇▇▇) ▇▇▇-▇▇▇▇
9.8 Severability. If any provisions of this Agreement or the
application thereof to any person or circumstance shall be invalid or
unenforceable to any extent, the remainder of this Agreement and the application
of such provisions to other persons or circumstances shall not be affected
thereby and shall be enforced to the greatest extent permitted by law.
9.9 Counterparts. This Agreement may be executed in any number of
counterparts with the same effect as if all the signatures on such counterparts
appeared on one document, and each such counterpart shall be deemed to be an
original.
IN WITNESS WHEREOF, the undersigned, by their duly authorized officers,
have executed this Agreement as of the day and year first above written.
Attest: iQrom COMMUNICATIONS, INC.
By:/s/ ▇▇▇▇▇▇ ▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
----------------- -------------------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇ Elek
Title: President and Chief Executive Officer
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
-----------------------------------------------------
▇▇▇▇▇ ▇▇▇▇▇▇▇
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
----------------------------------------------------
▇▇▇▇▇▇ ▇▇▇▇▇ Elek
/s/ Aldersey Egerton ▇▇▇▇▇▇▇-▇▇▇▇▇▇
----------------------------------------------------
Aldersey Egerton ▇▇▇▇▇▇▇-▇▇▇▇▇▇
POV US, LLC
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇
------------------------------------------------
▇▇▇▇▇▇▇ ▇▇▇▇, Managing Member
CONFIDENTIAL TREATMENT REQUESTED BY IQROM COMMUNICATIONS, INC.
EXHIBIT A
---------
Form of Escow Agreement
ESCROW AGREEMENT
----------------
This ESCROW AGREEMENT ("Agreement") is made as of the 6th day of
February, 2001 by and among iQrom COMMUNICATION, INC., a Nevada corporation
("iQrom"), ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ALDERSEY EGERTON ▇▇▇▇▇▇▇-▇▇▇▇▇▇ and
POV US, LLC, a Delaware limited liability company (individually as "Lender" and
together the "Lenders"), and FOX, ROTHSCHILD, O'BRIEN & ▇▇▇▇▇▇▇, LLP (the
"Escrow Agent").
BACKGROUND
----------
iQrom and the Lenders have entered into a Loan Agreement dated February
5, 2001, (the "Loan Agreement"), pursuant to which the Lenders have agreed to
lend to iQrom the sum of One Million Dollars ($1,000,000.00) (the "Loan
Amount").
The Loan Agreement provides that each of the Lenders will deposit his
or its share of the Loan Amount into escrow with the Escrow Agent who will
disburse the Loan Amount to iQrom as set forth in the Loan Agreement. iQrom's
obligation to repay the Loan Amount to the Lenders will be evidenced by a Note
(the "Note") executed by the Borrower in favor the Lenders. iQrom shall pay the
principal and interest on the Note to the Escrow Agent from time to time as set
forth in the Loan Agreement and the Escrow Agent shall hold all such payments
(the "Repayment Amounts") in escrow until disbursed to the Lenders in accordance
with the provisions of the Note and of the Loan Agreement. The Loan Amount shall
be converted automatically on the Conversion Date into Units, both as defined
and set forth in the Loan Agreement. Accordingly, for good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged by
each of the parties, and intending to be legally bound hereby, the parties
hereto agree as follows:
Section 1. Incorporation. The Note and the Loan Agreement are hereby
incorporated by reference and made a part of this Agreement as if fully set
forth herein. Capitalized terms not otherwise defined herein shall have the
meanings attributable to such terms in the Loan Agreement.
Section 2. Appointment and Acceptance of Escrow Agent. iQrom and the
Lenders (collectively, the "Parties") hereby appoint the Escrow Agent as "Escrow
Agent" to perform the functions and provide the services hereinafter set forth,
and the Escrow Agent hereby accepts the appointment as Escrow Agent upon the
terms and conditions set forth in this Agreement.
CONFIDENTIAL TREATMENT REQUESTED BY IQROM COMMUNICATIONS, INC.
Section 3. Establishment of Escrow Account. The Escrow Agent hereby
acknowledges receipt of the Loan Amount and shall establish an interest-bearing,
federally insured escrow account (the "Escrow Account") for such Loan Amount.
The Escrow Agent agrees to accept all Repayment Amounts from time to time when
and as received from iQrom and to deposit all Repayment Amounts into the Escrow
Account. The Loan Amount and the Repayment Amounts are referred to hereinafter
collectively as the "Escrowed Funds." All income earned on the Escrow Account
shall be accumulated for the benefit of the Lenders and shall not constitute
part of the Loan Amount. The Parties acknowledge and agree that the amount of
the Escrowed Funds is in excess of the limit of federal insurance, and the
Parties all consent to the Escrowed Funds being placed on deposit with Summit
Bank or First Union National Bank, with investments being made in bank
obligations, money market funds or government obligations. In no event shall the
Escrow Agent be liable in any manner provided that it has handled the Escrowed
Funds in accordance with the provisions of this agreement and in acted in good
faith.
Section 4. Release of Escrowed Funds.
(a) The Escrow Agent shall disburse the Loan Amount to iQrom
upon receipt of a Drawdown Notice, as defined in subsection 2.3 of the Loan
Agreement, in such principal amount as shall be specified in the Drawdown
Notice.
(b) Promptly following receipt of any Repayment Amounts from
iQrom from time to time, the Escrow Agent shall disburse such amounts to the
Lenders in such proportions (each, a "Proportionate Share") as set forth below:
▇▇▇▇▇ ▇▇▇▇▇▇▇ [Confidential Information filed
separately with the Securities and Exchange Commission]
▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ [Confidential Information filed
separately with the Securities and Exchange Commission]
Aldersey Egerton ▇▇▇▇▇▇▇-▇▇▇▇▇▇ [Confidential Information filed
separately with the Securities and Exchange Commission]
POV US, LLC [Confidential Information filed
separately with the Securities and Exchange Commission]
Each distribution of a Proportionate Share of the Repayment Amounts shall be
sent to the Lender in accordance with the payment instructions set forth in
Exhibit "A" hereto.
(c) Upon notice from the Lenders to the Escrow Agents that the
Note has been repaid in full, the Escrow Agent shall distribute to each Lender
his or its Proportionate Share of any amounts remaining in the Escrow Account,
together with all interest and other income earned thereon, and thereafter the
escrow established hereunder shall terminate in accordance with the terms of
this Agreement.
CONFIDENTIAL TREATMENT REQUESTED BY IQROM COMMUNICATIONS, INC.
Section 5. Escrow Agent's Duties Limited. The sole responsibility of
the Escrow Agent hereunder shall be to receive, hold and, upon receipt of the
Drawdown Notice, written authorization from the Parties or otherwise in
accordance with Section 4 of this Agreement, distribute or release the Escrowed
Funds. The Escrow Agent shall not be bound by any amendment or modification of
this Agreement unless the same shall be in writing and be signed by the Parties
and the Escrow Agent.
Section 6. Escrow Agent's Duties in the Event of Adverse Claims. In the
event of any dispute or claim regarding the custody, management or distribution
of the Escrowed Funds, or upon presentation of any adverse claim or demand for
the Escrowed Funds, the Escrow Agent in question shall retain the Escrowed Funds
and make no release thereof until:
(a) the Escrow Agent receives a written agreement executed by
the Parties directing the distribution of the Escrowed Funds by the Escrow
Agent; or
(b) the Escrow Agent has filed an appropriate interpleader
suit under applicable federal or state law and has deposited with the
appropriate office of said court the entire amount of the Escrowed Funds for
final resolution of any such dispute or conflicting claim by that court.
Section 7. Concerning the Escrow Agent.
(a) The Escrow Agent may rely on and shall be protected in
acting upon any written notice, instruction or request furnished to it hereunder
and believed by it to be genuine and believed by it to have been signed or
presented by the proper Party or Parties.
(b) The Escrow Agent shall not be liable for any act which the
Escrow Agent may do or omit to do hereunder, or for any mistake of fact or law,
or for any error of judgment, unless caused by or arising from its own gross
negligence or willful misconduct.
(c) In the event of any dispute between the Parties concerning
the Loan Amount or the Repayment Amounts, the Escrow Agent in question may make
a deposit of the Loan Amount or the Repayment Amounts, as the case may be, into
an appropriate court of competent jurisdiction and interplead all interested
Parties whereupon the Escrow Agent shall be fully released and discharged from
all further obligations to perform any and all duties or obligations imposed
upon the Escrow Agent by this Agreement.
Section 8. Termination. This Agreement shall terminate on the earlier
of (a) the final distribution of the Repayment Amounts, (b) receipt of a written
notice signed by the Parties advising the Escrow Agent of the termination of
this Agreement and instructing the Escrow Agent to deliver the Escrowed Funds in
accordance with a signed Release Notification, (c) release of the Escrowed Funds
into court in accordance with Section 6(b), 7(c) or 9.2(b) below, or (d)
resignation of the Escrow Agent pursuant to Section 9.2 hereof. Such termination
shall not affect the rights of the Escrow Agent under Section 9.3 hereof. If any
court shall declare part of this Agreement invalid with respect to any one Party
CONFIDENTIAL TREATMENT REQUESTED BY IQROM COMMUNICATIONS, INC.
hereto, the remaining portions thereof shall be deemed severable and shall
continue in full force and effect to all other Parties.
Section 9. Escrow Agent.
9.1. Limitation of Liability. The Escrow Agent shall be
entitled to rely upon and shall be protected in acting in reliance upon any
instruction, notice, information, certificate, instrument or other document
which is submitted to it in connection with its duties under this Escrow
Agreement, and which the Escrow Agent, in good faith, believes to have been
signed or presented by the proper parties. The Escrow Agent shall have no
liability with respect to the form, execution, validity or authenticity thereof.
The Escrow Agent shall not be liable for any act which the Escrow Agent may do
or omit to do hereunder, or for any mistake of fact or law, or for any error of
judgment, or for the misconduct of any employee, agent or attorney appointed by
it, while acting in good faith, unless caused by or arising from its own gross
negligence or willful misconduct. The Escrow Agent shall be entitled to consult
with counsel of its own selection and the opinion of such counsel shall be full
and complete authorization and protection to the Escrow Agent in respect of any
action taken or omitted by the Escrow Agent hereunder in good faith and in
accordance with the opinion of such counsel.
9.2. Resignation. The Escrow Agent shall have the right, at
any time, to resign for any reason and be discharged of its duties as the Escrow
Agent hereunder by giving written notice of its resignation to the Parties at
least ten (10) business days prior to the date specified for such resignation to
take effect. All obligations of the Escrow Agent hereunder shall cease and
terminate on the effective date of its resignation and its sole responsibility
thereafter shall be to hold the Escrowed Funds until the effective date of
resignation, at which time,
(a) if a successor escrow agent shall have been appointed
and written notice thereof shall have been given to the resigning Escrow Agent
by the Parties and the successor escrow agent, then the resigning Escrow Agent
shall deliver the Escrowed Funds, as the case may be, to the successor escrow
agent; or
(b) if a successor escrow agent shall not have been
appointed, for any reason whatsoever, the resigning Escrow Agent shall deliver
the Escrowed Funds to a court of competent jurisdiction and give written notice
of the same to the parties hereto.
The resigning Escrow Agent shall be entitled to be reimbursed by the parties
hereto for any reasonable expenses incurred in connection with its resignation
and transfer of the Escrowed Funds pursuant to and in accordance with the
provisions of this Section.
9.3. Indemnity. The parties (excluding the Escrow Agent)
hereto, jointly and severally agree to indemnify, defend and hold the Escrow
Agent harmless from and against any and all liabilities, causes of action,
claims, demands, judgment, damages, costs and expenses (including reasonable
CONFIDENTIAL TREATMENT REQUESTED BY IQROM COMMUNICATIONS, INC.
attorneys' fees and expenses) that may arise out of or in connection with the
Escrow Agent's good faith acceptance of or performance of its duties and
obligations under this Escrow Agreement, but excluding those that may arise as a
result of its gross negligence or willful misconduct. The Escrow Agent shall be
under no duty to institute any suit, or to take any remedial procedures under
this Escrow Agreement, or to enter any appearance or in any way defend any suit
in which it be made a defendant hereunder until it shall be indemnified as
provided above.
9.4. Suspension of Duties. In the event that an Escrow Agent
shall be uncertain as to its duties or rights hereunder or shall receive
instructions with respect to the Escrowed Funds which, in its sole discretion,
are in conflict either with other instructions received by it or with any
provision of this Agreement, the Escrow Agent shall have the absolute right to
suspend all further performance under this Escrow Agreement (except for the
safekeeping of the Escrowed Funds) until the resolution of such uncertainty or
conflicting instructions to the Escrow Agent's sole satisfaction by joint
written instructions from the Parties. In the event the Escrow Agent does not
receive such instructions or such instructions are not sufficient to resolve
such uncertainty, it may consider such situation a dispute within the meaning of
Section 6 hereof.
9.5 No Compensation. The Escrow Agent shall not be entitled to
any compensation for its services hereunder as Escrow Agent.
9.6 Representation. Notwithstanding anything contained herein
to the contrary, the execution and performance by the Escrow Agent under the
terms hereof shall not act so as to create any conflict of interest with the
continued representation by the Escrow Agent of its clients. In the event of any
dispute which results in litigation, delivery of the Escrowed Funds to a
successor Escrow Agent or any court of competent jurisdiction shall be
sufficient to remove any such conflict.
Section 10. Miscellaneous.
10.1. Binding Effect. This Agreement shall inure to the
benefit of and shall be binding upon the iQrom, the Lenders and the Escrow Agent
and their respective successors and assigns.
10.2. Governing Law. This Agreement shall be deemed to be made
in, and in all respects shall be interpreted, construed and governed by and in
accordance with, the laws of the Commonwealth of Pennsylvania.
10.3. Headings. The section and paragraph headings contained
in this Agreement are for reference purposes only and shall not affect in any
way the meaning or interpretation of this Agreement.
CONFIDENTIAL TREATMENT REQUESTED BY IQROM COMMUNICATIONS, INC.
10.4. Notices. All communications provided for hereunder shall
be in writing and may be personally served, or sent by courier service or United
States certified mail or registered mail, return receipt requested, postage
prepaid to the address set forth as follows:
in the case of iQrom, as follows:
iQrom Communications, Inc.
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telecopier: ▇▇▇-▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇.
Chief Financial Officer
in the case of the Lenders, to the addresses
set forth in the Loan Agreement
in the case of the Escrow Agent, as follows:
Fox, Rothschild, O'Brien & ▇▇▇▇▇▇▇, LLP
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
or such other place or places or to such other person or persons as shall be
designated in writing by the above parties.
10.5. Counterparts. This Agreement may be executed in two or
more counterparts, each of which shall be deemed to be an original but all of
which together shall constitute one and the same instrument.
10.6. Modification. This Agreement may be modified only by a
written instrument signed by the parties hereto.
Section 11. Termination. This Escrow Agreement may be
terminated at any time by the written agreement of the Parties and the Escrow
Agent.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date and year first above written.
CONFIDENTIAL TREATMENT REQUESTED BY IQROM COMMUNICATIONS, INC.
iQrom Communications, Inc.
By: __________________________________________
President and Chief Executive Officer
[signatures continued on next page]
______________________________________________
▇▇▇▇▇ ▇▇▇▇▇▇▇
______________________________________________
▇▇▇▇▇▇ ▇▇▇▇▇ Elek
______________________________________________
Aldersey Egerton ▇▇▇▇▇▇▇-▇▇▇▇▇▇
POV US, LLC
By: __________________________________________
Managing Member
FOX, ROTHSCHILD, O'BRIEN & ▇▇▇▇▇▇▇, LLP
By: __________________________________________
CONFIDENTIAL TREATMENT REQUESTED BY IQROM COMMUNICATIONS, INC.
EXHIBIT B
Form of Promissory Note
PROMISSORY NOTE
$1,000.000.00 February 6, 2001
FOR VALUE RECEIVED, and intending to be legally bound hereby, iQrom
Communications, Inc., a Nevada corporation ("iQrom") promises to pay to Fox,
Rothschild, O'Brien & ▇▇▇▇▇▇▇, LLP (the "Agent"), as agent for ▇▇▇▇▇ ▇▇▇▇▇▇▇,
▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇, Aldersey Egerton ▇▇▇▇▇▇▇-▇▇▇▇▇▇ and POV US, LLC, a Delaware
limited liability company (collectively, the "Lenders"), the principal sum of
One Million Dollars ($1,000,000.00) in lawful money of the United States of
America, together with interest thereon as hereinafter specified. This Note has
been issued pursuant and is subject to a certain loan agreement, dated of even
date herewith, between iQrom and the Lenders (the "Loan Agreement"). Any term
not otherwise defined herein shall have the meaning given to it in the Loan
Agreement.
The outstanding principal balance of this Promissory Note ("Note"),
together with unpaid interest accrued thereon, shall be due and payable in full
on that date (the "Maturity Date") which is the earlier to occur of: (i) the
Conversion Date, or (ii) the receipt by iQrom of the proceeds of the Equity
Placement in the amount of $3,000,000 as set forth in Subsection 5.1 of the Loan
Agreement. This Note shall be automatically extinguished and deemed to be paid
in full upon the conversion of the principal amount hereof into Units and the
payment of all unpaid interest accrued hereon as of the Conversion Date as set
forth in the Loan Agreement.
Interest on the outstanding principal balance on this Note shall accrue
at a rate equal to two percent (2.0%) per annum in excess of the SunTrust Prime
Rate (hereinafter referred to as the "Interest Rate"). The SunTrust Prime Rate
is the "Prime Rate" announced by SunTrust Bank, Orlando, Florida, on the
applicable date as such rate may change from time to time. If SunTrust Bank
ceases to announce a "Prime Rate", then the Agent may use any similar prime rate
announced by a comparable bank. Accrued interest on the outstanding principal
balance of this Note will be due and payable on the Maturity Date, based on a
360-day year and the actual number of days elapsed. Upon the occurrence of an
Event of Default, as described below, the Note shall, at the option of the
Lenders, bear interest at a rate (the "Default Rate") equal to three and
one-half percent (3.50%) in excess of the SunTrust Prime Rate.
If, at any time, the Interest Rate under this Note would, but for this
paragraph, exceed the maximum lawful rate, the effective interest rate under
this Note shall be the maximum lawful rate, and any amount received by the Agent
on behalf of the Lenders in excess of such rate shall be applied to principal
or, if no such amounts are owing, returned to iQrom.
CONFIDENTIAL TREATMENT REQUESTED BY IQROM COMMUNICATIONS, INC.
Payments due under this Note shall be made to the Agent at ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ Attention: ▇▇▇▇ ▇. ▇▇▇▇▇,
or at such other address as the Agent may designate from time to time in
writing. iQrom will have the right to prepay any or all of the principal balance
outstanding under this Note in whole or in part at any time and from time to
time without notice, premium or penalty. Any such prepayment shall be applied
first to any unpaid interest that may have accrued through the date of payment
and then to the unpaid principal balance of this Note.
iQrom will be in default under this Note ("Event of Default") upon the
occurrence of an Event of Default as defined in the Loan Agreement. Upon the
occurrence of an Event of Default, the rate of interest on the unpaid principal
balance shall, at the option of the Lenders, be at the Default Rate, as provided
in the Loan Agreement. In addition, upon the occurrence of an Event of Default,
the Lenders shall have all of the remedies and rights provided in the Loan
Agreement or by applicable laws.
This Note shall be binding upon and inure to the benefit of iQrom, the
Lenders and their respective successors and permitted assigns. This Note shall
not be transferred, assigned or conveyed by iQrom or the Lenders.
This Note shall be governed, construed and enforced in accordance with
the laws of the State of Florida, regardless of laws that might otherwise govern
under applicable principles of conflicts of law.
The provisions of this Note are severable and the invalidity or
unenforceability of any provision shall not impair the remaining provisions of
this Note or the indebtedness evidenced by this Note.
iQrom hereby waives presentment for payment, demand, notice of
dishonor, protest and notice of protest with regard to this Note in all
instances.
iQrom and Lenders hereby agree to waive any right they may have to a
jury trial with regard to a dispute concerning this Note.
IN WITNESS WHEREOF, iQrom has caused this Note to be duly executed on
the day and year first above written.
iQrom Communications, Inc.
By: ________________________________
Name:
Title:
CONFIDENTIAL TREATMENT REQUESTED BY IQROM COMMUNICATIONS, INC.
EXHIBIT C
Payment Instructions to Lenders
CONFIDENTIAL TREATMENT REQUESTED BY IQROM COMMUNICATIONS, INC.
EXHIBIT D
Form of Warrant Certificate
WARRANT CERTIFICATE
THESE WARRANTS AND THE SECURITIES ISSUABLE UPON EXERCISE OF
THESE WARRANTS HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933. THESE WARRANTS ARE NOT TRANSFERABLE
AND SUCH SECURITIES ISSUABLE UPON EXERCISE OF THESE
WARRANTS MAY NOT BE SOLD OR OTHERWISE TRANSFERRED IN THE
ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT AS TO SUCH
SECURITIES UNDER SAID ACT OR AN OPINION OF COUNSEL
REASONABLY SATISFACTORY TO THE COMPANY THAT SUCH
REGISTRATION IS NOT REQUIRED.
EXERCISABLE ONLY ON OR BEFORE ________, 2004
WARRANTS TO PURCHASE _____ SHARES OF COMMON STOCK
OF
iQrom Communications, Inc.
This Warrant Certificate certifies that, for value received, [name of
holder] (the "Holder") is the holder of ____ Warrants (the "Warrants" and,
individually, a "Warrant"), each such Warrant entitling Holder to purchase from
iQrom Communications, Inc., a Nevada corporation (the "Company"), subject to the
terms set forth below, one share ("Warrant Share") of the Company's Common
Stock, ($.001) par value (the "Common Stock"), at any time on or after the date
hereof and on or before 5:00 p.m., Eastern Standard time, on _______, 2004 (the
"Expiration Date"), at the exercise price per whole Warrant Share (the "Exercise
Price") of $___ subject to certain adjustments as to the number of Warrant
Shares and the number and kind of other securities purchasable upon exercise of
each Warrant represented hereby, and as to the Exercise Price, all as set forth
below.
1. Exercise. Subject to the provisions of this Warrant Certificate, the
Warrants represented hereby may be exercised by Holder from time to time upon
surrender of this certificate to the Company (such surrender being deemed to
have occurred at such time as this certificate is actually received by the
Company at the address specified below), with the form of election to purchase
attached as Exhibit A hereto properly completed and executed, and upon payment
in full to the Company of the Exercise Price for the Warrant Shares so
purchased. The rights of purchase represented by the Warrants evidenced hereby
are exercisable at the election of Holder during the period specified herein in
whole or, from time to time, in part and, in the event that less than all of the
Warrants represented by this certificate are exercised, the Company shall
execute and deliver to Holder within ten (10) days a new certificate
CONFIDENTIAL TREATMENT REQUESTED BY IQROM COMMUNICATIONS, INC.
representing the number of Warrants represented hereby which remain unexercised.
Payment of the Exercise Price shall be made by check or other comparable means
selected by Holder in lawful money of the United States of America. Upon such
surrender of this Warrant Certificate and payment of the Exercise Price as
aforesaid, the Company shall issue and cause to be delivered with all reasonable
dispatch to Holder a certificate for the Warrant Shares so purchased upon such
exercise of all or a portion of the Warrants represented hereby. Such
certificate shall be deemed to have been issued and the Holder shall become the
holder of record of such Warrant Shares as of the date of the surrender of such
Warrants and payment of the Exercise Price as aforesaid. In satisfaction of its
obligation to sell and deliver the Warrant Shares upon exercise of these
Warrants, the Company shall deliver authorized and newly issued shares of Common
Stock, or shares of Common Stock held in the treasury of the Company.
2. Adjustment of Exercise Price and Number of Shares. The number and
kind of securities purchasable upon the exercise of the Warrants and the
Exercise Price shall be subject to adjustment from time to time upon the
occurrence of certain events, as follows:
2.1 Reclassification, Consolidation or Merger. In case of any
reclassification or change of outstanding securities issuable upon exercise or
conversion of the Warrants (other than a change in par value, or from par value
to no par value, or from no par value to par value or as a result of a
subdivision or combination) or in case of any consolidation or merger of the
Company with or into another corporation (other than a merger with another
corporation in which the Company is a continuing corporation and which does not
result in any reclassification or change, other than a change in par value, or
from par value to no par value, or from no par value to par value, or as a
result of a subdivision or combination of outstanding securities issuable upon
the exercise of the Warrants), the Company, or such successor or purchasing
corporation, as the case may be, shall, without payment of any additional
consideration therefor, execute a new warrant certificate providing that the
Holder of the Warrants shall have the right to exercise such new warrants (upon
terms not less favorable to the Holder than those then applicable to the
Warrants) and to receive upon such exercise, in lieu of each share of Common
Stock theretofore issuable upon exercise or conversion of the Warrants, the kind
and amount of shares of stock, other securities, money or property receivable
upon such reclassification, change, consolidation or merger by the holder of one
share of Common Stock issuable upon exercise or conversion of the Warrants had
the Warrants been exercised or converted immediately prior to such
reclassification, change, consolidation, or merger. Such new warrant certificate
shall provide for adjustments which shall be as nearly equivalent as may be
practicable to the adjustments provided for in this Section 2. The provisions of
this subsection 2.1 shall similarly apply to successive reclassifications,
changes, consolidations or mergers.
2.2 Stock Split or Combination. The Exercise Price shall be adjusted
from time to time in the case of any stock split, dividend payable in Common
CONFIDENTIAL TREATMENT REQUESTED BY IQROM COMMUNICATIONS, INC.
Stock, subdivision of the number of shares of the Common Stock or similar event
involving Common Stock (a "Split") or any reverse stock split, combination or
similar event involving the Common Stock (a "Combination"), and, accordingly,
the Exercise Price shall be proportionately decreased in the case of a Split or
increased in the case of a Combination, as of the close of business on the date
the Split or Combination becomes effective or, if the Company shall take a
record of the holders of its capital stock for the purpose of such Split or
Combination, as of such record date, whichever is earlier, computed to the
nearest cent.
2.3 Certain Dividends or Distributions. If the Company at any time
while the Warrants are outstanding and unexpired shall pay a dividend or other
distribution with respect to the Common Stock payable in (A) securities of the
Company other than Common Stock or (B) other assets (excluding cash dividends or
distributions) then and in each such event provision shall be made so that the
Holder shall receive upon exercise thereof in addition to the number of shares
of Common Stock receivable thereupon, the number of securities or such other
assets of the Company which they would have received had the Warrants been
exercised for Common Stock on the date of such event and had they thereafter,
during the period from the date of such event to and including the date of the
exercise of the Warrants, retained such securities or such other assets
receivable by them, giving application to all other adjustments called for
during such period under this Section 2.
2.4 Adjustment of Number of Shares. Upon each adjustment of the
Exercise Price as provided in this Section 2, the Holder shall thereafter be
entitled to purchase, at the Exercise Price resulting from such adjustment, the
number of Warrant Shares (calculated to the nearest Warrant Share as provided in
Section 3) obtained by multiplying the Exercise Price in effect immediately
prior to such adjustment by the number of Warrant Shares purchasable pursuant
hereto immediately prior to such adjustment and dividing the product thereof by
the Exercise Price resulting from such adjustment.
2.5 Certificate as to Adjustments; Notice by Corporation. In each
case of an adjustment or readjustment of the Exercise Price, the Company at its
expense will furnish the Holder with a certificate prepared by the Treasurer or
Chief Financial Officer of the Company, showing such adjustment or readjustment,
and stating in detail the facts upon which such adjustment or readjustment is
based.
3. Fractional Interests. The Company shall not issue fractions of
Warrant Shares on the exercise of these Warrants. If any fractions of a Warrant
Share would be issued upon the exercise of the Warrants, the Company will
deliver to the Holder its check for the current market value of the fractional
share. The current market value of a fraction of a share shall be determined in
a reasonable manner prescribed by the Board of Directors. The determination as
to whether or not any fractional shares are issuable shall be based upon an
aggregate number of Warrants being exercised at any one time by the Holder, not
upon each Warrant being exercised.
CONFIDENTIAL TREATMENT REQUESTED BY IQROM COMMUNICATIONS, INC.
4. General Restrictions. Certificates delivered upon the exercise of
these Warrants may bear a legend restricting transfer if appropriate under
applicable law or regulation.
5. Reservation of Shares. The Company at all times until the Expiration
Date will reserve and keep available a sufficient number of shares of Common
Stock out of its authorized and unissued shares of Common Stock or out of Common
Stock held in its treasury or a combination thereof, to provide for the exercise
of the rights of purchase represented by the Warrants.
6. No Rights as Shareholder. The Holder of these Warrants shall not, by
reason of the ownership or possession of this Warrant Certificate, have any
right whatsoever as a shareholder of the Company or any rights whatsoever except
as expressly provided herein.
7. Governing Law and Choice of Forum.
7.1 This Warrant Certificate shall be governed by and construed in
all respects by the laws of the State of Nevada.
7.2 Any action or suit in connection herewith may be brought in a
court of record of the State of Florida or the United States District Court
situated in the Middle District of Florida, and the Holder and the Company
hereby consent to the exclusive personal and subject matter jurisdiction and
venue of each thereof.
8. Amendment. Neither this Warrant Certificate nor any term hereof may
be amended, waived, discharged or terminated except by a written instrument
signed by the party against which enforcement of the amendment, waiver,
discharge or termination is sought.
9. Notices. All notices and other communications herein provided for
shall be deemed to have been given or made to the Company when delivered to the
address specified below.
iQrom Communications, Inc.
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Telecopier: ▇▇▇-▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇ Elek
President and Chief Executive Officer
CONFIDENTIAL TREATMENT REQUESTED BY IQROM COMMUNICATIONS, INC.
IN WITNESS WHEREOF, iQrom Communications, Inc. has caused this Warrant
Certificate to be executed by the manual signature of its President.
iQrom Communications, Inc.
Dated: _________, 2001 By: ______________________________
▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇, President
CONFIDENTIAL TREATMENT REQUESTED BY IQROM COMMUNICATIONS, INC.
Exhibit A
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[FORM OF ELECTION TO PURCHASE]
The undersigned hereby irrevocably elects to exercise the
right, represented by the Warrants evidenced by the within Certificate, to
purchase Warrant Shares and herewith tenders payment for such Warrant Shares to
the order of iQrom Communications, Inc., in the amount of $ (in cash or through
the withholding of Warrant Shares having a fair market value equal to the
Exercise Price) in accordance with the terms thereof.
Signature:
By:_________________________
Name:
Title:
Date: ______________