Exhibit 10.31
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED, AND MAY NOT BE SOLD, ASSIGNED OR OTHERWISE TRANSFERRED IN THE ABSENCE
OF SUCH REGISTRATION OR AN EXEMPTION FROM SUCH REGISTRATION.
FORM OF
PROMISSORY NOTE
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Date: June __, 1999
$5,000,000.00
FOR VALUE RECEIVED, the undersigned ("Debtor") hereby promises to pay to
Voyager Information Networks, Inc., a Michigan corporation ("Payee"), at such
place or places as may be specified by Payee or any holder hereof, in legal
tender of the United States of America, the principal amount of $5,000,000.00
(the "Principal"), together with interest at the rate of 5.00% per annum,
compounded annually, on the unpaid balance. Interest shall accrue commencing on
the date hereof and shall be due and payable in full at the Repayment Date (as
hereinafter defined). The Debtor shall pay to Payee, within ten (10) days after
receipt thereof, the net after-tax proceeds from any sale by the Debtor of any
of the shares of Common Stock, par value $.0001 per share, of Voyager Holdings,
Inc. ("Parent") held by Debtor, in reduction of the Principal and accrued
interest thereon until such time as such Principal and interest have been repaid
in full. For purposes hereof, net after-tax proceeds refers to the amount
received by the Debtor upon any sale of such shares, less brokerage commissions
or underwriting discounts, other expenses of every kind, including documentary,
excise and other taxes, if any, directly relating to the sale and an amount
equal to the federal, state and local taxes on any gain from such sale (as
determined by multiplying the amount of such gain by the combined maximum
federal, state and local tax rate applicable to the sale of such shares by the
Debtor, taking into account the holding period for such shares and any federal
income tax deduction for state and local income taxes). In any event, any
Principal then unpaid shall be due and payable, with accrued interest thereon,
on the earlier of (i) the fourth (4th) anniversary of date hereof, (ii) the date
Debtor voluntarily terminates his employment with Payee and (iii) when all
Principal is otherwise paid in full upon the sale of the Shares (as defined
below) (the "Repayment Date").
This Note is subject to the terms of, and the payment hereof is secured by,
a certain Pledge Agreement dated as of the date hereof by and between Debtor and
Payee (the "Pledge Agreement"), pursuant to which the Debtor is pledging to the
Payee _______ of common stock, par value $0.0001 per share, of Parent (the
"Shares") owned by Debtor.
In case an Event of Default, as defined in the Pledge Agreement, shall
occur, the aggregate unpaid balance of Principal and accrued interest thereon
may be declared to be due and payable in the manner and with the effect provided
in the Pledge Agreement. The obligation of the undersigned Debtor to pay the
Recourse Amount (as hereinafter defined) shall be absolute and unconditional,
and the Payee shall have full recourse against the Debtor's assets (including,
but not limited to, the collateral pledged pursuant to the Pledge Agreement) to
recover the Recourse Amount. The Recourse Amount as of any date shall mean 25%
of the Principal, plus accrued interest as of such date, reduced by any payment
of Principal and/or accrued interest made by or on behalf of the Debtor from
any source. With respect to amounts due and payable hereunder in excess of the
Recourse Amount, the Payee shall have no recourse against the Debtor or any of
his assets other than the collateral pledged pursuant to the Pledge Agreement,
and Payee shall look only to its rights as provided in the Pledge Agreement for
the repayment of amounts in excess of the Recourse Amount.
Debtor may discharge the obligations undertaken hereby, at any time, by
repaying the outstanding Principal and accrued interest thereon, without
penalty. Debtor may, without penalty, make a partial prepayment of Principal
and/or accrued interest thereon in any amount at any time and may thereby reduce
any required future payment hereunder by the amount of such prepayment. In the
event of any such prepayment, the number of Shares held by Payee under the
Pledge Agreement may, at the discretion of Payee, be reduced by a proportionate
amount.
Debtor expressly waives presentment for payment, protest and demand, notice
of protest, demand and dishonor and expressly agrees that this Note may be
extended from time to time without in any way affecting the liability of Debtor.
No delay or omission on the part of Payee in exercising any right hereunder
shall operate as a waiver of such right or of any other right under this Note.
This Note may be changed, modified or terminated only by an agreement in
writing that is signed by the Debtor and Payee; provided, however, that the
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consent of Fleet National Bank, as agent, shall be required for any
modifications which affect the Lenders rights under Payee's Credit Agreement
dated September 23, 1999, as the same may be amended and/or restated from time
to time. This Note shall be governed by and construed in accordance with the
laws of The Commonwealth of Massachusetts, and shall be binding upon the
successors and assigns of Debtor and inure to the benefit of Payee and its
successors, endorsees and assigns.
DEBTOR:
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Name: Christopher P. Torto