10% SUBORDINATED CONVERTIBLE DEBENTURE (COLLATERALZED) DUE DECEMBER 31, 2008
Exhibit
10.d
10%
SUBORDINATED CONVERTIBLE DEBENTURE (COLLATERALZED)
DUE
DECEMBER 31, 2008
Number: ________________________________
Principal
:
$______________________________
Original
Issue
Date: ________________________
Registered
Holder: _________________________
(name)
High
Point Transport, Inc., a Florida
corporation (the "Company") with principal offices at ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇. ▇▇▇,
▇▇▇▇▇▇ ▇▇▇▇, ▇▇. ▇▇▇▇▇, for value received, hereby promises to pay the
registered holder hereof (the “Holder”) the principal sum set forth above on
December 31, 2008 (the “Maturity Date”), in such coin or currency of the United
States of America as at the time of payment shall be the legal tender for
the
payment of public and private debts, and to pay interest, less any amounts
required by law to be deducted or withheld, computed on the basis of a 365-day
year, on the unpaid principal balance hereof from the date hereof (the "Original
Issue Date"), at the rate of 10% per year, until such principal sum shall
have
become due and payable, or has been converted by the Holder pursuant to Section
6, below. Interest payments will be made at the option of the Holder
in either cash or in such number of shares of the Company’s common stock, $.0001
par value (“Common Stock”), computed in accordance with Section 5.2 below and
shall be paid, on December 31, 2007 and quarterly thereafter until Maturity,
or
if the principal of the Debenture is earlier converted, upon conversion pursuant
to Section 6, below. All references herein to dollar amounts refers
to U.S. dollars.Debenture is collateralized by a first position lien on all
equipment listed in Exhibit 1. A UCC filing will be entered against said
equipment at closing.
By
acceptance and purchase of this
Debenture, the registered holder hereof agrees with the Company that the
Debenture shall be subject to the following terms and conditions:
1. Authorization
of Debentures. The Company has authorized the issue and sale of
its 10% Senior Subordinated Convertible Debentures due December 31, 2008
(the
"Debenture," such term includes any debentures which may be issued in exchange
or in replacement thereof) in the aggregate principal amount of not more
than
U.S. $1,500,000.
2. Transfer
or Exchange. Prior to due presentation to the Company for
transfer of this Debenture, the Company and any agent of the Company may
treat
the person in whose name this Debenture is duly registered on the Company’s
Debenture Register as the owner hereof for the purpose of receiving payment
as
herein provided and for all other purposes.
3. Prepayment;
Payment of Interest in Shares.
3.1 Optional
Prepayment of Debenture. Subject to the Holder’s right to convert set forth
in Section 4, below, the Company may prepay the Debenture on ten days prior
written notice.
3.2 Payment
of Interest in Shares. Prior to the conversion of the principal
amount of the Debenture, the Company will issue to the Holder, at the Holder’s
option, in lieu of cash interest, shares of Common Stock calculated in
accordance with the following formula (the “Conversion Rate”):
Interest
Shares = (.10 x *Principal) / Conversion Price, where
*Principal
= the Principal Amount
of the Debenture, and
*Conversion
Price =
$1.00
4. Conversion
of Debentures.
4.1 Conversion
of the Debenture.
1.
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(a)
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Right
to Convert. Subject to the provisions of paragraph 4.1(b),
below, the record holder of this Debenture shall be entitled, on
or after
the Date of Original Issuance, at the option of the Holder, to
convert
this Debenture, in whole or in part, into fully paid and non-assessable
shares of the Company’s Common Stock at the rate of $1.00 per
share.
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4.2 Exercise
of Conversion Privilege. In order to exercise the conversion privilege, the
Holder shall surrender such Debenture, together with the Notice of Conversion
annexed hereto as Exhibit 1 appropriately endorsed to the Company at its
principal office, accompanied by written notice to the Company (a) stating
that
the Holder elects to convert the Debenture or a portion thereof, and if a
portion, the amount of such portion in multiples of $500 in principal amount,
and (b) setting forth the name or names (with address) in which the certificate
or certificates for shares of Common Stock issuable upon such conversion
shall
be issued. Provided the Debenture is received properly endorsed promptly
by the
Company, the date of conversion of such Debenture shall be deemed to be the
date
of receipt of Notice of Conversion, even if the Company's stock transfer
books
are at that time closed, and the converting Holder shall be deemed to have
become, on the date of conversion, the record holder of the shares of Common
Stock deliverable upon such conversion. If the Debenture is not
received, properly endorsed by the fifth business day following the date
the
Company receives Notice of Conversion, the date of conversion shall be deemed
to
be the date the Debenture is received, provided that such later receipt will
not
lower the Conversion Price stated in the Notice of Conversion.
As
soon as reasonably possible after
the date of conversion, the Company shall issue and deliver to such converting
Holder a certificate or certificates for the number of shares of Common Stock
due on such conversion. No adjustments in respect of interest or cash dividends
shall be made upon the conversion of any Debenture or Debentures.
Upon
conversion of the Debenture in
part, the Company shall execute and deliver to the Holder thereof, at the
expense of the Company, a new Debenture, in aggregate principal amount equal
to
the unconverted portion of such Debenture. Such new Debenture shall have
the
same terms and provisions other than the principal amount as the Debenture
or
Debentures surrendered for conversion.
4.3 Duration
of Conversion Privilege. The right to subscribe for and purchase
shares of Common Stock pursuant to the conversion privilege granted herein
shall
commence on the Original Issue Date and shall expire at 5:00 p.m., New York
time
on December 31, 2008.
4.4 Stock
Fully Paid; Restricted. The Company covenants and agrees
that:
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(a)
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all
shares which may be issued upon the exercise of the conversion
privilege
granted herein will, upon issuance in accordance with the terms
hereof, be
fully paid, non-assessable, and free from all taxes, liens and
charges
(except for taxes, if any, upon the income of the Holder) with
respect to
the issue thereof, and that the issuance thereof shall not give
rise to
any preemptive rights on the part of the
stockholders;
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(b)
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the
failure of the Company to issue shares upon the conversion of the
Debenture will cause the holder immediate irreparable
harm.
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4.5 Antidilution
Provisions. The following provisions apply to the
Debenture:
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(a)
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In
case the Company shall (i) pay a dividend or make a distribution
in shares
of Common Stock, (ii) subdivide its outstanding shares of Common
Stock
into a greater number of shares of Common Stock, (iii) combine
its
outstanding shares of Common Stock into a smaller number of shares
of
Common Stock, (iv) make a distribution on its Common Stock in shares
of
its capital stock other than Common Stock, or (v) issue by
reclassification of its Common Stock other securities of the Company,
the
conversion privilege of the Debenture and the Conversion Price
then in
effect immediately prior thereto shall be adjusted so
that
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2.
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the
Holder shall be entitled to receive the kind and number of shares
of
Common Stock and other securities of the Company which it would
have owned
or would have been entitled to receive after the happening of any
of the
events described above, had the Debenture been converted immediately
prior
to the happening of such event or any record date with respect
thereto.
Any adjustment made pursuant to this paragraph (a) shall become
effective
immediately after the effective date of such event retroactive
to the
record date, if any, for such
event.
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(b)
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When
the number of shares of Common Stock or the Conversion Price is
adjusted
as herein provided, the Company shall cause to be promptly mailed
to the
Holder by first class mail, postage prepaid, notice of such adjustment
or
adjustments and a certificate of a firm of independent public accountants
selected by the Board of Directors of the Company (who may be the
regular
accountants employed by the Company) setting forth the number of
shares of
Common Stock and the Conversion Price after such adjustment, a
brief
statement of the facts requiring such adjustment and the computation
by
which such adjustment was made.
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(c)
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For
the purpose of this Section 4.5, the term "Common Stock" shall
mean (A)
the class of stock designated as the Common Stock of the Company
at the
date of this Debenture or (B) any other class of stock resulting
from
successive changes or reclassification of such Common Stock consisting
solely of changes in par value, or from par value to no par value,
or from
no par value to par value. In the event that at any time, as a
result of
an adjustment made pursuant to this Section 4.5, the Holder shall
become
entitled to receive any securities upon conversion of the Company
other
than shares of Common Stock thereafter the number of such other
securities
and the Conversion Price of such securities shall be subject to adjustment
from time to time in a manner and on terms as nearly equivalent
as
practicable to the provisions with respect to the Common Stock
contained
in this Section 4.5.
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4.6 No
Adjustment for Dividends. Except as provided in Section 4.5, no
adjustment in respect to any dividends paid shall be made during the term
of the
Debenture or upon the exercise of the Debenture.
4.7 Preservation
of Purchase Rights Upon Reclassification Consolidation. etc. In the case of
any consolidation of the Company with or merger of the Company into another
corporation or in the case of any sale or conveyance to another corporation
of
all or substantially all of the property, assets or business of the Company,
the
Company or such successor or purchasing corporation, as the case may be,
shall
provide that the Holder shall have the right thereafter upon payment of the
Conversion Price in effect immediately prior to such action to purchase upon
conversion of the Debenture the kind and amount of shares and other securities
and property which the Holder would have owned or have been entitled to receive
after the happening of such consolidation, merger, sale or conveyance had
the
Debenture been converted immediately prior to such action. Such agreement
shall
provide for adjustments, which shall be as nearly equivalent as may be
practicable to the adjustments provided for in this Section 4. The provisions
of
this Section 4.7 shall similarly apply to successive consolidations, mergers,
sales or conveyances.
4.8 Par
Value of Common Stock. Before taking any action which would cause an
adjustment reducing the Conversion Price below the then par value of the
shares
of Common Stock issuable upon conversion of the Debenture, the Company will
take
any corporate action which may, in the opinion of its counsel, be necessary
in
order that the Company may validly and legally issue fully paid and
non-assessable shares of Common Stock at such adjusted Conversion
Price.
4.9
a Statement
on Debenture Certificates. Irrespective of any adjustments in the
Conversion Price or the number of securities convertible, this Debenture
certificate or any certificates hereafter issued may continue to express
the
same price and number of securities as are stated in this Debenture certificate.
However, the Company may at any time in its sole discretion (which shall
be
conclusive) make any change in the form of the Debenture certificate that
it may
deem appropriate and that does not affect the substance thereof; and any
Debenture certificate thereafter issued, whether upon registration or transfer
of, or in exchange or substitution for, an outstanding Debenture certificate,
may be in the form so changed.
3.
4.9b Collateral. A first
position lien (UCC filing ) will be filed at closing on all equipment listed
on
Exhibit 1 of this agreement.
5. Restrictions
on Transferability. The Debenture and the Common Stock issuable
upon conversion of the Debenture shall not be transferred, hypothecated or
assigned before satisfaction of the conditions specified in this Section
5,
which conditions are intended to ensure compliance with the provisions of
the
Securities Act with respect to the Transfer of any Debenture or any Common
Stock
issuable upon conversion of the Debenture. Holder, by acceptance of
this ▇▇▇▇▇▇▇▇▇, agrees to be bound by the provisions of this Section
5.
5.1 Restrictive
Legend. The Holder by accepting this Debenture and any Common
Stock issuable upon conversion of the Debenture agrees that this Debenture
and
the Common Stock issuable upon conversion hereof may not be assigned or
otherwise transferred unless and until (i) the Company has received an opinion
of counsel for the Holder that such securities may be sold pursuant to an
exemption from registration under the Securities Act or (ii) a registration
statement relating to such securities has been filed by the Company and declared
effective by the Commission.
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(a)
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Each
certificate for Common Stock issuable hereunder shall bear a legend
substantially worded as follows unless such securities have been
sold
pursuant to an effective registration statement under the Securities
Act:
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“The
securities represented by this certificate have not been registered under
the
Securities Act of 1933, as amended (the “Act”) or any state securities
laws. The securities may not be offered for sale, sold, assigned,
offered, transferred or otherwise distributed for value except (i) pursuant
to
an effective registration statement under the Act or any state securities
laws
or (ii) pursuant to an exemption from registration or prospectus delivery
requirements under the Act or any state securities laws in respect of which
the
Company has received an opinion of counsel satisfactory to the Company to
such
effect.”
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(b)
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Except
as otherwise provided in this Section 5, the Debenture shall be
stamped or otherwise imprinted with a legend in substantially the
following form:
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“This
Debenture and the securities represented hereby have not been registered
under the Securities Act of 1933, as amended, or any state securities laws
and
may not be transferred in violation of such Act, the rules and regulations
thereunder or any state securities laws or the provisions of this
Debenture.”
5.2 Notice
of Proposed Transfers. Prior to any Transfer or attempted
Transfer of any Debenture or any shares of Restricted Common Stock, the Holder
shall give five (5) days’ prior written notice (a “Transfer Notice”) to the
Company of Holder’s intention to effect such Transfer, describing the manner and
circumstances of the proposed Transfer, and obtain from counsel to Holder
an
opinion that the proposed Transfer of such Debenture or such Restricted Common
Stock may be effected without registration under the Securities Act or state
securities laws. After the Company’s receipt of the Transfer Notice
and opinion, such Holder shall thereupon be entitled to Transfer such Debenture
or such Restricted Common Stock, in accordance with the terms of the Transfer
Notice. Each certificate, if any, evidencing such shares of
Restricted Common Stock issued upon such Transfer and the Debenture issued
upon
such Transfer shall bear the restrictive legends set forth in Section 5.1,
unless in the opinion of such counsel such legend is not required in order
to
ensure compliance with the Securities Act.
5.3 Termination
of Restrictions. Notwithstanding the foregoing provisions of
Section 5, the restrictions imposed by this Section upon the transferability
of
the Debentures, the Common Stock issuable upon conversion and the Restricted
Common Stock (or Common Stock issuable upon the conversion of the Debenture)
and
the legend requirements of Section 5.1 shall terminate as to any particular
Debenture or Restricted Common Stock (or Common Stock issuable upon the
conversion of the Debenture) (i) when and so long as such security shall
have been effectively registered under the Securities Act and applicable
state
securities laws and disposed of pursuant thereto or (ii) when the Company
shall have received an opinion of counsel that such shares may be transferred
without registration thereof under the Securities Act and applicable state
securities laws. Whenever the restrictions imposed by Section 5 shall
terminate as to this Debenture, as hereinabove provided, the Holder hereof
shall
be entitled to receive from the Company upon written request of the Holder,
at
the expense of the Company, a new Debenture
4.
bearing
the following legend in place of the restrictive legend set forth
hereon:
“THE
RESTRICTIONS ON TRANSFERABILITY OF THE WITHIN DEBENTURE CONTAINED IN
SECTION 5 HEREOF TERMINATED ON ___________, 20__, AND ARE OF NO FURTHER FORCE
AND EFFECT.”
All
Debentures issued upon registration of transfer, division or combination
of, or
in substitution for, any Debenture or entitled to bear such legend shall
have a
similar legend endorsed thereon. Whenever the restrictions imposed by
this Section shall terminate as to any share of Restricted Common Stock,
as
hereinabove provided, the holder thereof shall be entitled to receive from
the
Company, at the Company’s expense, a new certificate representing such Common
Stock not bearing the restrictive legends set forth in Section 5.1.
5.4 Listing
on Securities Exchange. If the Company shall list any shares of
Common Stock on any securities exchange, it will, at its expense, list thereon,
maintain and, when necessary, increase such listing of, all shares of Common
Stock issued or, to the extent permissible under the applicable securities
exchange rules, issuable upon the conversion of this Debenture so long as
any
shares of Common Stock shall be so listed during the Exercise
Period.
6.
6.1 Abandonment
or Delay. If, at any time after giving written notice of its
intention to register any equity securities and prior to the effective date
of
the registration statement filed in connection with such registration, the
Company shall determine for any reason not to register or to delay registration
of such equity securities, the Company may, at its election, give written
notice
of such determination to all Holders and (i) in the case of a determination
not
to register, shall be relieved of its obligation to register any Common Stock
issuable upon conversion of the Debenture in connection with such abandoned
registration, and (ii) in the case of a determination to delay such registration
of its equity securities, shall be permitted to delay the registration of
such
Common Stock for the same period as the delay in registering such other equity
securities.
6.2 Holder's
Right to Withdraw. Any Holder shall have the right to withdraw
its request for inclusion of its Common Stock in any registration statement
pursuant to this Section 6 by giving written notice to the Company of its
request to withdraw; provided, however, that (i) such request must be made
in
writing prior to the earlier of the execution of the underwriting agreement
or
the execution of the custody agreement with respect to such registration,
and
(ii) such withdrawal shall be irrevocable and, after making such withdrawal,
a
Holder shall no longer have any right to include such Common Stock in the
registration as to which such withdrawal was made.
6.3 Cutbacks. If
the managing underwriter of any underwritten offering shall inform the Company
by letter of its belief that the number of shares of Common Stock requested
to
be included in a registration under this Section 6 would materially adversely
affect such offering, then the Company will include in such registration,
first
the securities proposed by the Company to be sold for its own account and,
second the Common Stock issuable upon conversion and all other securities
of the
Company to be included in such registration to the extent of the number and
type, if any, which the Company is so advised can be sold in (or during the
time
of) such offering, pro rata among the Holders participating in such offering
in
accordance with the number of shares of Common Stock held by each such
Holder.
7. Fractional
Shares. No fractional shares of Common Stock will be issued in connection
with any subscription hereunder but in lieu of such fractional shares, the
Company shall make a cash payment therefor equal in amount to the product
of the
applicable fraction multiplied by the Conversion Price then in
effect.
8. Subordination.
Any right of the Holder to payment of principal or interest from the Company
shall be subordinated to the claims and rights of the holders of the Senior
Debt
(“Senior Debt Holders”). "Senior Debt" means all Indebtedness of the Company
other than the Debentures, whether outstanding on the date of execution of
this
Debenture or thereafter created, incurred or assumed, except (x) any such
Indebtedness that by the terms of the instrument or instruments by which
such
Indebtedness was created, assumed or incurred expressly provides that it
(i) is
junior in right of payment to the Debentures or (ii) ranks pari passu in
right of payment with the Debentures and (y) any amendments, modifications
or
supplements to, or any renewals, extensions, deferrals, refinancing and
refunding of, any of the foregoing. Any cash payment of principal or
interest to the Holder shall be collected, enforced or received by the Holder
as
trustee for the Senior Debt Holders and paid over to the Senior Debt Holders.
The Holder
5.
agrees
that in the event of any payment of principal or interest by the Company
to the
Holder by reason of any receivership, insolvency or bankruptcy proceeding,
or
proceeding for reorganization or readjustment of the Company or its properties,
or otherwise, then, in any such event, the Senior Debt Holders shall be
preferred in the payment of their claims over the claim of the Holder to
payment
of principal or interest against the Company or its properties, and the claims
of the Senior Debt Holders shall be first paid and satisfied in full before
any
payment or distribution of any kind or character, whether in cash or property,
shall be made to the Holder. Provided, however, that this Section 8 shall
not
apply to any payment of principal or interest made to the Holder while the
Company is solvent and not in default with respect to its Senior
Debt.
9. Replacement
of Debenture Certificate. Upon receipt of evidence satisfactory to the
Company of the certificate loss, theft, destruction or mutilation of the
Debenture certificate and, in the case of any such loss, theft or destruction,
upon delivery of a bond of indemnity satisfactory to the Company, or, in
the
case of any such mutilation, upon surrender and cancellation of the Debenture
certificate, the Company will issue a new Debenture certificate, of like
tenor,
in lieu of such lost, stolen, destroyed or mutilated Debenture
certificate.
10. Covenants
of the Company. So long as any of the Debentures remain
outstanding, the Company shall:
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(a)
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At
all times keep reserved the total number of shares of Common Stock
necessary for the conversion of all of the then outstanding Debentures
at
the then current Conversion Rate;
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(b)
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Not
pay any dividends in cash and/or property or other assets of the
Company
in respect of its Common Stock or
otherwise.
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(c)
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Not
issue any debentures of the Company other than the Debentures unless
the
rights of the holders of such debentures are subordinated to the
Debentures or paripassu therewith, in which event the terms
of the subordination provision shall be similar to the terms set
forth in
Section 9 of this Debenture;
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(d)
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Not
enter into a loan secured by the property and/or assets of the
Company or
any of its subsidiaries with (i) any director, officer or 5% stockholder
of the Company, (ii) any entity in which a director, officer or
5%
stockholder has an interest as an officer, director, partner, beneficiary
of a trust or is a 5% or more equity holder of such entity, or
(iii) any
parent, spouse, child or grandchild of an officer, director or
5%
stockholder of the Company upon terms no less favorable to the
Company
than those which could be obtained from an “arms-length” lender;
and
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(e)
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Not
redeem, repurchase or otherwise acquire any shares of the common
or
preferred stock of the Company.
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11. Default. If
any of the following events (herein called “Events of Default”) shall
occur:
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(a)
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if
the Company shall default in the payment or prepayment of any part
of the
principal of any of the Debentures after the same shall become
due and
payable, whether at maturity or at a date fixed for prepayment
or by
acceleration or otherwise, and such default shall continue for
more than
30 days; or
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(b)
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if
the Company shall default in the payment of any installment of
interest on
any of the Debentures for more than 30 days after the same shall
become
due and payable; or
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(c)
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if
the Company shall make an assignment for the benefit of creditors
or shall
be unable to pay its debts as they become due;
or
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(d)
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if
the Company shall dissolve; terminate its existence; become insolvent
on a
balance sheet basis; commence a voluntary case under the federal
bankruptcy laws or under any other federal or state law relating
to
insolvency or debtor's relief; permit the entry of a decree or
order for
relief against the Company in an involuntary case under the federal
bankruptcy
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6.
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laws
or under any other applicable federal or state law relating to
insolvency
or debtor's relief; permit the appointment or consent to the appointment
of a receiver, trustee, or custodian of the Company or of any of
the
Company's property; make an assignment for the benefit of creditors;
or
admit in writing to be failing generally to pay its debts as such
debts
become due;
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(e)
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if
the Company shall default in the performance of or compliance with
any
agreement, condition or term contained in this Debenture or any
of the
other Debentures and such default shall not have been cured within
30 days
after such default,
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(f)
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Any
of the representations or warranties made by the Company herein,
in the
Subscription Agreement, or in any certificate or financial or other
statements heretofore or hereafter furnished by or on behalf of
the
Company in connection with the execution and delivery of this Debenture
or
the Subscription Agreement shall be false or misleading in any
material
respect at the time made; or
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(g)
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Any
money judgment, writ or warrant of attachment, or similar process
not
covered by insurance in excess of One Hundred Thousand Dollars
($100,000)
in the aggregate shall be entered or filed against the Company
or any of
its properties or other assets and shall remain unpaid, unvacated,
unbonded or unstayed for a period of thirty (30) days or in any
event
later than ten (10) days prior to the date of any proposed sale
thereunder; or
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then
and
in any such event the Holder of this Debenture shall have the option (unless
the
default shall have theretofore been cured) by written notice to the Company
to
declare the Debenture to be due and payable, whereupon the Debenture shall
forthwith mature and become due and payable, at the applicable prepayment
price
on the date of such notice, without presentment, demand, protest or further
notice of any kind, all of which are hereby expressly waived, anything contained
in this Debenture to the contrary notwithstanding. Upon the occurrence of
an
Event of Default, the Company shall promptly notify the Holder of this Debenture
in writing setting out the nature of the default in reasonable
detail.
12. Remedies
on Default; Notice to Other Holders. In case any one or more of the Events
of Default shall occur, the Holder may proceed to protect and enforce his
or her
rights by a suit in equity, action at law or other appropriate proceeding,
whether, to the extent permitted by law, for the specific performance of
any
agreement of the Company contained herein or in aid of the exercise of any
power
granted hereby. If any Holder of one or more of the Debentures shall declare
the
same due and payable or take any other action against the Company in respect
of
an Event of Default, the Company will forthwith give written notice to the
Holder of this Debenture, specifying such action and the nature of the default
alleged.
13. Amendments.
With the consent of the Holders of more than 50% in aggregate principal amount
of the Debentures at the time outstanding, the Company, when authorized by
a
resolution of its Board of Directors, may enter into a supplementary agreement
for the purpose of adding any provisions to or changing in any manner or
eliminating any of the provisions of this Debenture or of any supplemental
agreement or modifying in any manner the rights and obligations of the holders
of Debentures or Common Stock issued upon conversion of the Debentures, and
of
the Company, provided, however, that no such supplemental agreement shall
(a)
extend the fixed maturity of any Debenture, or reduce the principal amount
thereof, or reduce the rate or extend the time of payment of interest thereon,
or alter or impair the right to convert the same into Common Stock at the
rates
and upon the terms provided in this Debenture, without the consent of the
Holder
of each of the Debentures so affected, or (b) reduce the aforesaid percentage
of
Debentures, the Holders of which are required to consent to any supplemental
agreement, without the consent of the Holders of all Debentures then
outstanding.
14. Changes,
Waivers. etc. Neither this Debenture nor any provisions hereof
may be changed, waived, discharged or terminated orally, but only by a statement
in writing signed by the party against which enforcement of the change, waiver,
discharge or termination is sought, except to the extent provided in Section
13
of this Debenture.
16. Entire
Agreement. This Debenture embodies the entire agreement and understanding
between the Holder and the Company and supersedes all prior agreements and
understandings relating to the subject matter hereof.
7.
17. Governing
Law, Jurisdiction, etc.
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(a) It
is the intention of the parties that the laws of the State of Florida
shall govern the validity of this Debenture, the construction of
its terms
and the interpretation of the rights and duties of the
parties.
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(b)
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In
the case of any dispute, question, controversy or claim arising
among the
parties hereto which shall arise out of or in connection with this
Debenture, the same shall be submitted to arbitration before a
panel of
three arbitrators in Tampa, Florida, in accordance with the rules
of the
American Arbitration Association. One arbitrator shall be
appointed by the party or parties bringing the claims ("Claimant")
and one
arbitrator shall be appointed by the party or parties defending
the claim
("Respondent"). The arbitrators selected by such parties shall
be selected within thirty (30) days after notification by the Claimant
to
the Respondent that it has determined to submit such dispute, question,
controversy or claim to arbitration. The two arbitrators so
selected shall select a third arbitrator within thirty (30) days
after the
selection of the arbitrator selected by such parties. Should a
party fail to select an arbitrator within the specified time period,
or
should the arbitrators selected by the parties fail to select a
third
arbitrator, the missing arbitrator or arbitrators shall be appointed
by
the Tampa, Florida office of the American Arbitration
Association. The decision of the panel shall be final and
binding on the parties and enforceable in any court of competent
jurisdiction. The costs of the arbitration will be imposed upon
the Claimant and Respondent as determined by the arbitration panel
or,
failing such determination, will be borne equally by the Claimant
and the
Respondent. The successful or prevailing party or parties shall
be entitled to recover reasonable attorneys fees in addition to
any other
relief to which it may be entitled.
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(c)
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In
the event of any dispute, question, controversy or claim arising
among the
parties hereto which shall arise out of or in connection with this
Debenture, the parties shall keep the proceeding related to such
controversy in strict confidence and shall not disclose the nature
of said
dispute, the status of the proceeding or any testimony, documents
or
information obtained or exchanged in the course of said proceeding
without
the express written consent of all parties to such
dispute.
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[Corporate
Seal]
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By___________________________
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▇▇▇▇
▇. ▇▇▇▇▇▇, President & CEO
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Number:
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Name
of
Holder:
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Principal:
$
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Original
Issue Date:
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8.
EXHIBIT
1
NOTICE
OF CONVERSION
(To
be
Executed by the Registered Holder in order to Convert the
Debenture)
The
undersigned hereby irrevocably
elects to convert $______________ of the above Debenture No. _____ into
_________ shares of Common Stock of High Point Transport, Inc. (the “Company”)
according to the conditions set forth in such Debenture, as of the date written
below.
The
undersigned confirms the
representations and warranties set forth in the Subscription
Agreement.
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__________________________________________
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Date
of Conversion*
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__________________________________________
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Applicable
Conversion Price
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__________________________________________
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Signature
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__________________________________________
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Name
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__________________________________________
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Address
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__________________________________________
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*The
original Debenture and this Notice of Conversion must be received by the
Company
within five business days following the date of Conversion.
9.