Convertible And Redeemable Note
Exhibit
4.5
| Amount: US$xxx | Dated: August 03, 2007 |
| Shares: xxx | |
| Warrants: xxx | Lender: (name) |
THIS
PROMISSORY NOTE is entered into on
this 3rd day of August
2007 (this "Agreement"), by and among MetaSwarm, Inc., a Florida corporation
("Borrower"), and (name), ("Lender").
WHEREAS,
on or about the 3rd day of
August, 2007, ▇▇▇▇▇▇▇▇ executed this Promissory Note payable to Lender in the
original principal amount of xxx dollars ($xxx.00) (hereinafter the "Promissory
Note"); and
WHEREAS,
In connection with execution
of the Promissory Note, ▇▇▇▇▇▇▇▇ agrees to provide for Conversion of the
Promissory Note into Common Shares of Stock of Borrower; or full repayment
of
the loan principal.
AGREEMENT
NOW,
THEREFORE, for and in
consideration of the mutual covenants and agreements set forth in this
Agreement, and for other good and valuable consideration, the receipt, and
adequacy of which are hereby acknowledged by all parties hereto, Borrower and
Lender agree to the Promissory Note provisions as set forth herein
below.
Acknowledgment
of obligations under
Promissory Note. ▇▇▇▇▇▇▇▇ hereby acknowledges and agrees that ▇▇▇▇▇▇ funded
to
Borrower the Principal Amount as defined herein, that Borrower actually received
the Principal Amount from Lender and that ▇▇▇▇▇▇▇▇ has not repaid any portion
of
the Principal Amount nor any installment of interest due thereon to Lender.
Borrower further acknowledges and agrees that the Promissory Note, inclusive
of
the Principal Amount and all interest accrued thereon from the date of the
execution thereof through the date hereof remains unpaid, constitutes a valid
and existing debt obligation of Borrower, that Borrower has no defenses to
its
obligation to pay the Principal Amount and all interest accrued thereon from
the
date of the execution thereof through the date hereof and that ▇▇▇▇▇▇▇▇ has
no
right to any offsets or other deductions therefrom.
FOR
VALUE RECEIVED, MetaSwarm, Inc., the Borrower, subject to the terms and
conditions herein, to repay the value of xxx dollars ($xxx); as set forth by
the
terms of either Conversion Option (1) or Redemption Option
(2):
|
1.
|
Conversion
Option
|
1.
1 The
Promissory Note will be converted at the expiry of a period of three
(3) months from the date of this Note (the "Maturity Date") into such number
of
common shares of the Borrower (the "Shares") as determined by dividing the
principal amount of the Note to be converted by the conversion price of US$0.20
per share; with an additional warrant to purchase ½ common share per each
converted share at a price of US$0.30 per share with warrant rights expiring
5
years from date of execution of the Promissory Note. The debt evidence by the
Promissory Note shall then be considered paid in full with no further
recourse.
1
Dilution
restrictions will apply, and all shareholders will participate proportionally
in
any stock splits, recapitalizations or distributions as determined by the
shareholders.
|
2.
|
Redemption
Option
|
2.1
Should the Lender elect not to convert the Promissory Note into Common Shares
Option at the Maturity Date, upon the Lender’s written request, the Borrower
shall repay all indebtedness to the Lender and redeem the said Promissory
Note. The redemption shall occur within 90 days of receipt, by the
Borrower, of a written notification of ▇▇▇▇▇▇’s election.
At
redemption, the Borrower shall pay to the Lender an amount equal to the full
face value of the Promissory Note plus all Interests calculated at a per annum
rate of 10.00% from date of the Value received to the date of
payment.
2.2 All
Notes which are converted in accordance with this Clause 2 shall forthwith
be
cancelled.
|
3.
|
Additional
Terms
|
This
Promissory Note is not transferable except with the written consent of the
Borrower.
The
Borrower hereby acknowledges and covenants that the benefit of the covenants,
obligations and conditions on the part of or binding upon it contained in this
Note shall endure to the Lender.
The
Lender shall have a right to request the Borrower to issue such Shares converted
under Clause 1 to any nominee as directed by the Lender.
All
funds
shall be made in US$ (or other currency as agreed by the parties) in cleared
funds on the due date for payment to a bank account specified by the relevant
party.
Notwithstanding
anything in this Note to the contrary, the obligations of the Borrower under
this Note shall be absolute and the Borrower expressly and unconditionally
waives any and all rights to offset, deduct or withhold any payments or charges
due under this Note for any reason whatsoever.
If
the
Borrower shall fail to pay when due any sums payable hereunder and such failure
shall remain unremedied for a period of ten business days after notice thereof
shall have been given to the Borrower by the Lender, then the Lender may, at
its
sole option, declare all sums owing under this Note immediately due and
payable.
The
acceptance by any Note Holder of this Note of any payment that is less than
the
total of all amounts due and payable at the time of such payment shall not
constitute a waiver of such holders rights or remedies at the time or at any
subsequent time, without the express written consent of such holder, except
as
and to the extent otherwise provided by law.
This
Note
may be waived, changed, modified or discharged only by an agreement in writing
signed by the party against whom enforcement of any waiver, change, modification
or discharge is sought.
This
Note
shall be construed and enforced in accordance with, and governed by, the laws
of the state of Florida (USA).
All
notices required or desired to be given hereunder shall be given in writing
and
signed by the party so giving notice, and shall be effective when delivered
to
the party or upon certified receipt of courier or overnight carrier if sent
by
commercial overnight carrier and addressed as set forth below. A
notice not given by overnight carrier in the manner described in the preceding
sentence shall be deemed given if and when actually received by the party to
whom it is given.
2
|
To
Lender:
|
(name)
|
| (address) |
| (city, state zip) |
| SSN: xxx |
|
To
the Company:
|
MetaSwarm,
Inc.
|
| ▇▇▇ ▇. ▇▇▇▇ ▇▇▇., #▇▇▇ |
| Pasadena, CA 91101 |
If
any
provision of this Note, or the application hereof to any circumstance, is found
to be unenforceable, invalid or illegal, such provision shall be deemed to
be
deleted from this Note or not applicable to such circumstance, as the case
may
be, and the remainder of this Note shall not be affected or impaired
thereby.
|
MetaSwarm,
Inc.:
|
Lender:
|
|
|
▇▇▇▇▇▇
▇▇▇▇▇▇▇
Chairman
and CEO
|
(name)
|
|
|
Date
|
Date
|
3