EXHIBIT 10.1
P R O M I S S O R Y N O T E
$__________ November 2, 1998
FOR VALUE RECEIVED, in the manner, on the dates and in the amounts so
herein stipulated, the undersigned, TANISYS TECHNOLOGY, INC., a Wyoming
corporation ("Borrower"), PROMISES TO PAY TO THE ORDER OF __________________,
individually ("Lender"), at
_______________________________________________________, the sum of
______________________________________________________________ Dollars
($___________) in lawful money of the United States of America, which shall
be legal tender in payment of all debts and dues, public and private, at the
time of payment, and to pay interest on the unpaid principal amount from the
date hereof until maturity at a fixed rate ("Stated Rate") equal to Ten
Percent (10%) per annum, not to exceed the maximum non-usurious interest rate
permitted by applicable law from time to time in effect, as such law may be
interpreted, amended, revised, supplemented or enacted (the "Maximum Rate"),
provided that if at any time the Stated Rate exceeds the Maximum Rate, then
interest hereon shall accrue at the Maximum Rate. In the event the Maximum
Rate applicable to this Note should subsequently be changed, then interest
hereon shall accrue at a rate equal to the applicable Maximum Rate until the
aggregate amount of interest so accrued equals the aggregate amount of
interest which would have accrued at the Stated Rate without regard to any
usury limit, at which time interest hereon shall again accrue at the Stated
Rate. The principal amount of this Note and accrued interest are payable as
follows:
(a) Interest shall be due and payable quarterly, with the first
payment of interest due and payable ____________, 199_, and a
similar interest payment due and payable each ninety (90) days
thereafter until maturity of the Note (each an "Interest Payment
Date").
(b) Interest shall be payable, at the option of the Borrower, in cash
or shares of common stock, no par value ("Common Stock"), of the
Company. The Borrower shall provide Lender notice of its
intention to pay interest in cash or shares of Common Stock not
less than ten (10) business days prior to any interest payment
date. If interest is paid in shares of Common Stock, the number
of shares of Common Stock issuable on account of such interest
shall equal the cash amount of interest due on such Interest
Payment Date divided by the average of the closing bid price per
share of Common Stock for the five (5) trading days immediately
preceding the applicable Interest Payment Date.
(c) The principal amount of this Note, and any unpaid accrued
interest, shall be due and payable in full on November 1, 2000;
(d) In the event the Borrower closes an underwritten public offering,
principal and accrued interest shall be due and payable in full
as of such closing date.
If Borrower shall default in the performance of the payment provisions
of this Note, Lender shall notify Borrower of the default in writing by
facsimile or by U.S. Certified Mail, Return Receipt Requested, and shall
demand cure of the default. Borrower shall thereupon have five (5) days from
receipt of notice from Lender in which to cure the default. In the event
Borrower shall not cure the default within the five (5)-day cure period,
Lender may, at its option, (i) accelerate and declare this Note immediately
due and payable, (ii) pursue any and all other rights, remedies and recourses
available to the holder hereof, at law or in equity, or (iii) pursue any
combination of the foregoing. Any failure to exercise this option shall not
constitute a waiver by Lender of the right to exercise the same at any other
time.
In the event of default in the making of any payment herein provided,
either of principal or interest, or in the event this Note is declared due,
interest shall accrue at the Maximum Rate.
Borrower hereby agrees to pay all expenses incurred, including
reasonable attorneys' fees, all of which shall become a part of the principal
hereof, if this Note is placed in the hands of an attorney for collection or
if collected by suit or through any probate, bankruptcy or any other legal
proceedings.
Interest charges will be calculated on amounts advanced hereunder on the
actual number of days these amounts are outstanding on the basis of a 360-day
year, except for calculations of the Maximum Rate, which will be on the basis
of a 365-day or 366-day year, as is applicable. It is the intention of the
parties hereto to comply with all applicable usury laws; accordingly, it is
agreed that notwithstanding any provisions to the contrary in this Note, or
in any of the documents securing payment hereof or otherwise relating hereto,
no such provision shall require the payment or permit the collection of
interest in excess of the Maximum Rate. If any excess of interest in such
respect is provided for, or shall be adjudicated to be so provided for, in
this Note or in any of the documents securing payment hereof or otherwise
relating hereto, then in such event (1) the provisions of this paragraph
shall govern and control; (2) neither Borrower, endorsers or guarantors, nor
their heirs, legal representatives, successors or assigns, nor any other
party liable for the payment hereof, shall be obligated to pay the amount of
such interest to the extent that it is in excess of the Maximum Rate; (3) any
such excess which may have been collected shall be either applied as a credit
against the then unpaid principal amount hereof or refunded to Borrower; and
(4) the provisions of this Note and any documents securing payment of this
Note shall be automatically reformed so that the effective rate of interest
shall be reduced to the Maximum Rate. For the purpose of determining the
Maximum Rate, all interest payments with respect to this Note shall be
amortized, prorated and spread throughout the full term of the Note so that
the effective rate of interest on account of this Note is uniform throughout
the term hereof.
The provisions of this Note shall be governed by the laws of the State
of Texas.
Each surety, guarantor and endorser agrees that this Note and the liens
securing its payment may be renewed and the time of payment extended from
time to time, without notice and without releasing any of the foregoing.
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Borrower and any and all endorsers and guarantors of this Note severally
waive presentment for payment, notice of nonpayment, protest, demand, notice
of protest, notice of intent to accelerate, notice of acceleration and
dishonor, diligence in enforcement and indulgences of every kind and without
further notice hereby agree to renewals, extensions, exchanges or releases of
collateral, taking of additional collateral, indulgences or partial payments,
either before or after maturity.
Borrower may prepay this Note, in whole or in part, at any time prior to
maturity without penalty, and interest shall cease on any amount prepaid.
TANISYS TECHNOLOGY, INC.
By: /s/ Charles T. Comiso
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Charles T. Comiso
Chief Executive Officer and President
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