THIS NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED,
OR APPLICABLE STATE SECURITIES LAWS. THIS NOTE MAY NOT BE SOLD, OFFERED FOR
SALE, PLEDGED OR HYPOTHECATED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION
STATEMENT AS TO THIS NOTE UNDER SAID ACT AND APPLICABLE STATE SECURITIES LAWS OR
PURSUANT TO AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS UNDER SAID ACT AND
ANY APPLICABLE STATE SECURITIES LAWS.
CONVERTIBLE PROMISSORY NOTE
$2,500,000.00 February 18, 2005
FOR VALUE RECEIVED, Incentra Solutions, Inc., a Nevada corporation (the
"Company") and any successor corporation to the Company, hereby promises to pay
to the order of ALFRED CURMI and his assigns (together with his assigns,
"Payee"), the principal amount of Two Million Five Hundred Thousand Dollars
($2,500,000.00) on the terms set forth below. The Company promises to pay
interest on the principal amount of this Note in arrears from and including the
date hereof on the principal balance from time to time outstanding, computed
daily, at an annual rate of one-half percent (1/2%). Interest shall be
calculated on the basis of actual number of days elapsed over a year of 360
days. Notwithstanding any other provision of this Note, the holder hereof does
not intend to charge and the Company shall not be required to pay any interest
or other fees or charges in excess of the maximum permitted by applicable law;
any payments in excess of such maximum shall be refunded to the Company or
credited to reduce principal hereunder.
An initial payment of principal and interest in the amount of One
Hundred Twenty Five Thousand Eight Hundred Sixty One Dollars ($125,861.00) shall
be due and payable without notice or demand on May 1, 2005. Thereafter, eight
(8) consecutive quarterly payments of principal and interest in the amount of
Two Hundred Fifty One Thousand Seven Hundred Twenty Two and 00/100 Dollars
($251,722.00) shall be due and payable without notice or demand on the first day
of each August, November, February and May during the period beginning on August
1, 2005 and ending on May 1, 2007, and a final payment of principal and interest
under this Note in the amount of Three Hundred Seventy Seven Thousand Five
Hundred Eighty Three and 00/100 Dollars ($377,583.00) shall be due and payable
without notice or demand on August 1, 2007. For purposes of this Note, each such
date on which payment is due shall be referred to as a "Payment Due Date".
Payments shall be made by wire transfer of immediately available United States
federal funds sent to an account or accounts designated by the holder in
accordance with the instructions furnished to the Company for that purpose;
PROVIDED, HOWEVER, Payee shall have the right, at Payee's sole and absolute
option, to delay any quarterly payment until no later than August 1, 2007.
This Note constitutes the "Promissory Note" described in that certain
Agreement and Plan of Merger dated February _, 2005 (the "Merger Agreement"), by
and among the Company, Payee, Star Solutions of Delaware, Inc., a Delaware
corporation, Incentra Merger Corp., a Delaware corporation and is entitled to
all of the benefits of the Merger Agreement and the Registration Rights
Agreement. Unless defined herein, capitalized terms used herein that are
defined in the Merger Agreement have the meaning given to such terms in the
Merger Agreement.
Upon the happening of any of the following events, each of which shall
constitute a default hereunder (herein referred to as an "Event of Default"),
the entire unpaid principal balance and accrued interest evidenced by this Note
and all other liabilities of the Company to the Payee evidenced by this Note,
shall thereupon or thereafter, at the option of the Payee, without notice or
demand, become due and payable: (a) failure of the Company to pay in full,
within ten (10) days after the applicable due date hereof, any installment of
principal and/or interest under this Note or any other charge or liability
hereunder; (b) failure of the Company to perform any other agreement hereunder;
(c) the Company shall make an assignment for the benefit of creditors; (d) the
Company shall petition or apply to any court or other tribunal for the
appointment of a custodian, receiver or any trustee or shall commence any
proceeding under any bankruptcy, reorganization, arrangement, readjustment of
debt, dissolution or liquidation law or statute of any jurisdiction, whether now
or hereafter in effect; (e) if there shall have been filed any such petition or
application, or any such proceeding shall have been commenced against the
Company in which an order for relief is entered or which remains undismissed for
a period of sixty (60) days or more; (f) the Company by any act or omission
shall indicate consent to, approval of or fail to timely object to any such
petition, application or proceeding or order for relief or the appointment of a
custodian, receiver or any trustee or shall suffer any such custodianship,
receivership or trusteeship to continue undischarged for a period of sixty (60)
days or more; (g) the Company shall generally not pay its debts as such debts
become due or admit in writing its inability to pay its debts as they mature;
(h) the Company shall have made or suffered a transfer of any of its property in
contravention of any bankruptcy, fraudulent conveyance or similar law; or shall
have made any transfer of its property to or for the benefit of a creditor at a
time when other creditors similarly situated have not been paid; (i) the taking
of possession of any substantial part of the property of the Company at the
instance of any governmental authority; or (j) the failure of the Company to
perform any material agreement or covenant under the Merger Agreement, the
Registration Rights Agreement, the Consulting Agreement or any other material
agreement between or including the Company and the Payee.
If the principal of this Note or any portion hereof and, to the extent
permitted by law, interest hereon shall not be paid when due, whether by
acceleration or otherwise, the same shall bear interest for any period during
which the same shall be overdue at the rate of twelve percent (12%) per annum,
and payable on demand.
The Company agrees to pay all costs, charges and expenses incurred by
the Payee and its assigns (including, without limitation, costs of collection,
court costs, and reasonable attorneys' fees and disbursements) in connection
with the successful enforcement of the Payee's rights under this Note (all such
costs, fees and expenses being herein referred to as "Costs"). The Company
hereby expressly waives presentment, demand, and protest, notice of demand,
dishonor and nonpayment of this Note, and all other notices or demands of any
kind in connection with the delivery, acceptance, performance, default or
enforcement hereof. The rights and remedies of the holder as provided herein
shall be cumulative and concurrent and in addition to any other rights the Payee
may have at law, in equity or otherwise, and may be pursued singularly,
successively or together at the sole discretion of the holder and may be
exercised as often as occasion therefor shall occur. The Company agrees that any
delay or
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failure on the part of the Payee in exercising any rights or remedies hereunder
will not operate as a waiver of such rights, and further agrees that any
payments and prepayments received hereunder will be applied first to Costs, then
to interest and the balance to principal. The Payee shall not by any act, delay,
omission or otherwise be deemed to have waived any of its rights or remedies,
and no waiver of any kind shall be valid unless in writing and signed by the
party or parties waiving such rights or remedies. All payments under this Note
shall be made without counterclaim, offset or defense of any kind.
This Note will be registered on the books of the Company or its agent
as to principal and interest. This Note applies to, inures to the benefit of,
and binds the successors and assigns of the parties hereto; provided however
that the Company shall not assign this Note without the prior written consent of
the Payee. Any transfer of this Note will be effected only by surrender of this
Note to the Company and reissuance of a new note to the transferee. The Payee
and any subsequent holder of this Note receives this Note subject to the
foregoing terms and conditions, and agrees to comply with the foregoing terms
and conditions for the benefit of the Company and any other Payees.
Any notice required or permitted under this Note shall be in writing
and shall be deemed to have been given on the date of delivery, if personally
delivered to the party to whom notice is to be given, or on the third business
day after mailing, if mailed to the party to whom notice is to be given, by
certified mail, return receipt requested, postage prepaid, and addressed as
follows:
if to the Company, at
Incentra Solutions, Inc.
1140 Pearl Street
Boulder, CO 80302
Attn: Chief Executive Officer
and, if to the holder, at the most recent address provided to the Company by the
holder for such purpose; or, in each case, to the most recent address, specified
by written notice, given to the sender pursuant to this paragraph.
Without limiting any of Payee's rights under this Note, Payee shall
have the right, which right may be exercised at Payee's sole and absolute
discretion, at any time from the end of each calendar quarter immediately
preceding a Payment Due Date until and including one (1) day prior to such
Payment Due Date (each such period, an "Exercise Period"), to convert (the
"Conversion") all or any portion of the principal and/or accrued interest due
under this Note on such Payment Due Date into such number of fully paid and
nonassessable shares of the common stock, par value $.001 per share, of the
Company (the "Company Common Stock"), as shall be provided herein. For purposes
of this Note, the price at which each share of Company Common Stock may be
acquired upon any Conversion shall be equal to the greater of (i) $0.40, or (ii)
seventy percent (70%) of the average closing price of Purchaser Common Stock, as
reported on Bloomberg L.P. on the Principal Market, for the ten (10) consecutive
trading days ending on and including the last day of the calendar quarter
immediately preceding the Payment Due Date on which the payment that is being
converted is due (the "Conversion Price"). Payee may exercise the Conversion
right hereunder as to any payment of principal and/or interest that will become
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due on a Payment Date by giving written notice (the "Conversion Notice") to the
Company of the exercise of such right at any time during the applicable Exercise
Period and stating the name or names in which the stock certificate or stock
certificates for the shares of Company Common Stock are to be issued and the
address to which such certificates shall be delivered. If prepayment of
principal and/or interest is permitted under this Note, then the Company shall
provide Payee at least ten (10) days' advance written notice (each, a
"Prepayment Notice") of any proposed prepayment (each, a "Proposed Prepayment")
specifying the date of prepayment (each, a "Prepayment Date") and the amounts
that are proposed to be prepaid. In addition to the conversion rights set forth
above, the Payee shall have the right, which right may be exercised at Payee's
sole and absolute discretion, to convert (a "Prepayment Conversion") all or any
portion of such Proposed Prepayment amount to shares of the Company Common Stock
at a conversion price equal to the greater of (i) $0.40, or (ii) seventy percent
(70%) of the average closing price of Purchaser Common Stock, as reported on
Bloomberg L.P. on the Principal Market, for the ten (10) consecutive trading
days ending on and including the date on which the Prepayment Notice is required
to be given to Payee hereunder (the "Prepayment Conversion Price"). Payee may
exercise the Prepayment Conversion right hereunder as to any Proposed Prepayment
by giving written notice (the "Prepayment Conversion Notice") to the Company of
the exercise of such right at any time during the ten (10) day period after the
date on which Payee receives the Prepayment Notice (the "Prepayment Conversion
Exercise Period") and stating the name or names in which the stock certificate
or stock certificates for the shares of Company Common Stock are to be issued
and the address to which such certificates shall be delivered. The number of
shares of Company Common Stock that shall be issuable upon conversion of the
Note shall equal the amount of principal and/or interest requested by Payee to
be converted (the "Conversion Amount") divided by the Conversion Price (or the
Prepayment Conversion Price, as applicable) in effect on the date the Conversion
Notice (or the Prepayment Conversion Notice, as applicable) is given (the
"Conversion Date"). Within ten (10) business days after the Conversion Date, the
Company shall issue and deliver by hand against a signed receipt therefor or by
United States registered mail, return receipt requested, to the address
designated in the Conversion Notice (or the Prepayment Conversion Notice, as
applicable), a stock certificate or stock certificates of the Company
representing the number of shares of Company Common Stock to which Payee is
entitled and, in exchange for this Note, an executed replacement Convertible
Promissory Note representing the balance of the Note not converted into shares
of Company Common Stock. Any Conversion of principal hereunder shall be applied
to the remaining installments of principal in the inverse order of their
maturities, and the payment schedule of the replacement Convertible Promissory
Note shall reflect such application. In the case of any capital reorganization,
reclassification or recapitalization of the Company Common Stock, then the
conversion privilege in effect immediately before such action shall be adjusted
so that the Payee may receive the kind and amount of shares of stock and other
securities and property receivable upon such reorganization, reclassification or
recapitalization by a holder of the number of shares of Company Common Stock
into which this Note could have been converted immediately prior to such
reorganization, reclassification or recapitalization; and any such resulting or
surviving corporation shall expressly assume the obligation to deliver, upon the
exercise of the conversion privilege, such shares, securities or property as the
Payee may be entitled to and to make provisions for the protection of the
conversion rights as herein provided. In case securities or property other than
shares of Company Common Stock shall be issuable or deliverable upon conversion
as aforesaid, then all references in this Note to the Company
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Common Stock shall be deemed to apply, so far as appropriate and as nearly as
practicable, to such other securities or property. The Company will not, by
amendment of its Organizational Documents or through any reorganization,
transfer of assets, merger, dissolution, issue or sale of securities or any
other voluntary action, avoid or seek to avoid the observance or performance of
any of the terms to be observed or performed hereunder by the Company but will
at all times in good faith assist in the carrying out of all the provisions of
this Note and in the taking of all such action as may be necessary or
appropriate in order to protect the conversion rights of the Payee against
impairment. No fractional shares of the Company Common Stock are to be issued
upon the Conversion (or the Prepayment Conversion, as applicable) of this Note.
In lieu of delivering any fractional shares to which the Payee would otherwise
be entitled, the number of shares of Company Common Stock shall be rounded to
the nearest whole number. As soon as practicable after the date hereof, the
Company shall take all necessary actions, including but not limited to, amending
the Company's articles of incorporation, to ensure that the Company will have
sufficient shares of duly authorized but unissued Company Common Stock reserved
to issue upon conversion of this Note or any part thereof. Notwithstanding
anything contained herein, any portion of the payment which is due on a Payment
Due Date or a Prepayment Date, as applicable, that is not converted by Payee
pursuant this provision shall be paid in full to Payee on such Payment Due Date
or Prepayment Date, as applicable.
This Note is made under and shall be governed by and construed in
accordance with the internal laws of, and enforced by the courts located within,
the State of Colorado.
IN WITNESS WHEREOF, the Company has executed this Note under seal as
of the date first written above.
INCENTRA SOLUTIONS, INC.
By: /s/Thomas P. Sweeney III
---------------------------
Thomas P. Sweeney III
Chief Executive Officer
MIAMI 405091.8
2/16/05
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