EXHIBIT 10.1
------------
THIS NOTE HAS NOT BEEN REGISTERED WITH THE SECURITIES AND EXCHANGE COMMISSION OR
THE SECURITIES COMMISSION OF ANY STATE IN RELIANCE UPON AN EXEMPTION FROM
REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES
ACT"), AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT PURSUANT TO AN
EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR PURSUANT TO AN
AVAILABLE EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT AND IN ACCORDANCE WITH APPLICABLE STATE
SECURITIES LAWS.
U.S. $500,000.00 Original Issue Date: December 31, 2004
Holder: Mark J. Allen
SECURED NOTE DUE DECEMBER 31, 2009
THIS SECURED NOTE is made by TRUE TO FORM, LIMITED, a Massachusetts
corporation, having a principal place of business at 91 French Avenue,
Braintree, MA 02184 (the "Company"). This Note was acquired by MARK J. ALLEN,
residing at 39 Loring Drive, Norwell, Massachusetts 02061 (the "Holder")
pursuant to the terms of that certain Agreement and Plan of Merger (the
"Agreement") dated as of even date herewith, by and among the Company; Global
Matrechs, Inc, a Delaware Corporation ("GMTH"); TTF Acquisition Corporation, a
Massachusetts corporation and wholly owned subsidiary of the GMTH ("TTF"); and
the Holder. Capitalized terms used but not otherwise defined herein, shall have
the meaning ascribed to them in the Agreement.
FOR VALUE RECEIVED, the Company promises to pay to the Holder or
registered assigns, the principal sum of Five Hundred Thousand and 00/100
Dollars ($500,000.00), with interest at the rate of eight percent (8%) per annum
(the "Base Rate") on the basis of a 365-day year payable, as follows: the
Company shall pay accrued interest (but no principal) quarterly starting on
April 1, 2005 and continuing on the 1st day of July 2005, October 2005, and
January 2006 (each a "Payment Date" and collectively "Payment Dates"); pay
$100,000 in principal on January 1, 2006 and all unpaid principal and accrued
and unpaid interest shall be due and payable in full on December 31, 2009 (the
"Maturity Date"). Upon the occurrence of an Event of Default, as defined herein,
all amounts due hereunder shall bear interest at the rate of twelve percent
(12%) per annum from the day an Event of Default occurs through and including
the date of payment of any delinquent amount.
This Note is subject to the following additional provisions:
Section 1. Default.
"Event of Default" wherever used herein, means any one of the following
events (whatever the reason and whether it shall be voluntary or involuntary or
effected by operation of law or pursuant to any judgment, decree or order of any
court, or any order, rule or regulation of any administrative or governmental
body):
(i) any default by the Company in the payment of
principal or interest payable in respect of this Note, which default
continues for a period of thirty (30) calendar days after the due date
for such payment;
Page 1
(ii) any failure to observe or perform any other
material covenant, agreement or warranty contained in, or otherwise
commit any material breach of, this Note, the Merger Agreement, the
Collateral Pledge Agreement or the Security Agreement, and such failure
or breach shall not have been remedied within thirty (30) days after
the date on which reasonably detailed notice of such failure or breach
shall have been given by the Holder or its successor;
(iii) the Company shall commence a voluntary case
under the United States Bankruptcy Code or insolvency laws as now or
hereafter in effect or any successor thereto (the "Bankruptcy Code");
or an involuntary case is commenced against the Company under the
Bankruptcy Code and the petition is not controverted within thirty (30)
days, or is not dismissed within sixty (60) days, after commencement of
such involuntary case; or a "custodian" (as defined in the Bankruptcy
Code) is appointed for, or takes charge of, all or any substantial part
of the property of the Company or the Company commences any other
proceeding under any reorganization, arrangement, adjustment of debt,
relief of debtors, dissolution, insolvency or liquidation or similar
law of any jurisdiction whether now or hereafter in effect relating to
the Company or there is commenced against the Company any such
proceeding which remains undismissed for a period of sixty (60) days;
or the Company is adjudicated insolvent or bankrupt; or any order of
relief or other order approving any such case or proceeding is entered;
or the Company suffers any appointment of any custodian or the like for
it or any substantial part of its property which continues undischarged
or unstayed for a period of sixty (60) days; or the Company makes a
general assignment for the benefit of creditors; or the Company shall
fail to pay, or shall state that it is unable to pay its debts
generally as they become due; the Company shall call a meeting of all
of its creditors with a view to arranging a composition or adjustment
of its debts; or the Company shall by any act or failure to act
indicate its consent to, approval of or acquiescence in any of the
foregoing; or any corporate or other action is taken by the Company for
the purpose of effecting any of the foregoing;
(iv) the Company or TTF shall default in any of its
obligations under any mortgage, credit agreement or other facility,
indenture, agreement or other instrument under which there may be
issued, or by which there may be secured or evidenced any indebtedness
of the Company or TTF or an amount exceeding Two Hundred Fifty Thousand
Dollars ($250,000.00), whether such indebtedness now exists or shall
hereafter be created and such default shall result in such indebtedness
becoming or being declared due and payable prior to the date on which
it would otherwise become due and payable;
(v) the Company shall be a party to any Change of
Control Transaction (as defined in Section 5), shall agree to sell or
dispose of all or in excess of 49% of its assets (based on book value
calculation as reflected in the Company's most recent financial
statements) in one or more transactions (whether or not such sale would
constitute a Change of Control Transaction);
(vi) the Company or TTF has entered against it by any
court or other adjudicatory body of competent jurisdiction any judgment
in an amount equal to at least Two Hundred Fifty Thousand Dollars
($250,000.00); or
(vii) if at any time during the term of the Note, a
majority of the Company's board of directors serving as of the Closing
Date are involuntarily replaced other than pursuant to an annual
meeting of the Company's stockholders.
Section 2. Interest Rate Limitation. The parties intend to conform
strictly to the applicable usury laws in effect from time to time during the
term hereof. Accordingly, if any transaction
Page 2
contemplated hereby would be usurious under such laws, then notwithstanding any
other provision hereof: (i) the aggregate of all interest that is contracted
for, charged, or received under this Agreement shall not exceed the maximum
amount of interest allowed by applicable law (the "Highest Lawful Rate"), and
any excess shall be promptly credited to the Company by the Holder (or, to the
extent that such consideration shall have been paid, such excess shall be
promptly refunded to the Company by the Holder); (ii) neither the Company nor
any other Person now or hereafter liable hereunder shall be obligated to pay the
amount of such interest to the extent that it is in excess of the Highest Lawful
Rate; and (iii) the effective rate of interest shall be reduced to the Highest
Lawful Rate. All sums paid, or agreed to be paid, to the Holder for the use,
forbearance, and detention of the debt of the Company to the Holder shall, to
the extent permitted by applicable law, be allocated throughout the full term of
the Note until payment is made in full so that the actual rate of interest does
not exceed the Highest Lawful Rate in effect at any particular time during the
full term thereof. If at any time the rate of interest under the Note exceeds
the Highest Lawful Rate, the rate of interest to accrue pursuant to this
Agreement shall be limited, notwithstanding anything to the contrary in this
Agreement, to the Highest Lawful Rate, but any subsequent reductions in the Base
Rate shall not reduce the interest to accrue pursuant to this Agreement below
the Highest Lawful Rate until the total amount of interest accrued equals the
amount of interest that would have accrued if a varying rate per annum equal to
the interest rate under the Note had at all times been in effect. If the total
amount of interest paid or accrued pursuant to this Agreement under the
foregoing provisions is less than the total amount of interest that would have
accrued if a varying rate per annum equal to the interest rate under the Note
had been in effect, then the Company agrees to pay to the Holder an amount equal
to the difference between (x) the lesser of (A) the amount of interest that
would have accrued if the Highest Lawful Rate had at all times been in effect,
or (B) the amount of interest that would have accrued if a varying rate per
annum equal to the interest rate under the Note had at all times been in effect,
and (y) the amount of interest accrued in accordance with the other provisions
of this Agreement.
Section 3. Prepayment; Offset
(a) Prepayment. The Company shall have the right to prepay
this Note in whole or in part, provided, however, that no more than $300,000 in
principal amount may be prepaid prior to July 1, 2006.
(b) Notice of Prepayment. The Company shall give written
notice at least five (5) Business Days, but not more than ten (10) Business
Days, of any intention to prepay any portion of this Note prior to the Maturity
Date pursuant to Section 4(a), above, to the Holder, which notice shall specify
the date such prepayment will be made. Any such prepayment shall be applied to
principal in inverse order of maturity but shall not affect the amount of each
quarterly payment of principal and interest otherwise required hereunder.
(c) Offset. At the election of the Company or GMTH, payment of
this Note can be made by offset of obligations owed by the Shareholder pursuant
to the terms of Article 6 of the Agreement upon agreement between GMTH and the
Shareholder that a certain amount is due and payable to a Buyer Indemnified
Party (as defined in the Merger Agreement) thereunder.
Section 4. Definitions. For the purposes hereof, the following
terms shall have the following meanings:
"Business Day" means any day except Saturday, Sunday and any day which
shall be a legal holiday or a day on which banking institutions in the State of
New York are authorized or required by law or other government action to close.
Page 3
"Change of Control Transaction" means the occurrence of any of (i) an
acquisition after the date hereof by an individual or legal entity or "group"
(as described in Rule 13d-5(b)(1) promulgated under the Exchange Act) of in
excess of 49% of the voting securities of the Company in one or a series of
related transactions, or (ii) the merger of the Company with or into another
entity, consolidation or sale of all or substantially all of the assets of the
Company in one or a series of related transactions, unless following such
transaction, the holders of the Company's securities continue to hold at least
40% of the total voting securities of the entity surviving such transaction or
series of transactions. The execution by the Company of an agreement to which
the Company is a party or by which it is bound providing for any of the events
set forth above in (i) or (ii) does not constitute the occurrence of the event
until after the event in fact occurs.
Section 5. Except as expressly provided herein, no provision of
this Note shall alter or impair the obligation of the Company, which is absolute
and unconditional, to pay the principal of, interest and liquidated damages (if
any) on, this Note at the time, place, and rate, and in the coin or currency,
herein prescribed. This Note is a direct obligation of the Company.
Section 6. If this Note shall be mutilated, lost, stolen or
destroyed, the Company shall execute and deliver, in exchange and substitution
for and upon cancellation of a mutilated Note, or in lieu of or in substitution
for a lost, stolen or destroyed Note, a new Note for the principal amount of
this Note so mutilated, lost, stolen or destroyed but only upon receipt of
evidence of such loss, theft or destruction of such Note, and of the ownership
hereof, and indemnity, if requested, all reasonably satisfactory to the Company.
Section 7. This Note shall be governed by and construed in
accordance with the laws of the State of New York. Each of the parties consents
to the exclusive jurisdiction of the federal courts or the state courts of the
State of New York sitting in the Borough of Manhattan in connection with any
dispute arising under this Agreement and hereby waives, to the maximum extent
permitted by law, any objection, including any objection based on FORUM NON
COVENIENS, to the bringing of any such proceeding in such jurisdictions. To the
extent determined by such court, the Company shall reimburse the Holder for any
reasonable legal fees and disbursements incurred by the Holder in enforcement of
or protection of any of its rights under this Note, The Pledge Agreement or the
Security Agreement. THE COMPANY HEREBY WAIVES THE RIGHT TO TRIAL BY JURY IN ANY
ACTION, SUIT, PROCEEDING, OR COUNTERCLAIM OF ANY KIND ARISING OUT OF OR RELATED
TO THIS NOTE.
Section 8. Any waiver by the Company or the Holder of a breach
of any provision of this Note shall not operate as or be construed to be a
waiver of any other breach of such provision or of any breach of any other
provision of this Note. The failure of the Company or the Holder to insist upon
strict adherence to any term of this Note on one or more occasions shall not be
considered a waiver or deprive that party of the right thereafter to insist upon
strict adherence to that term or any other term of this Note. Any waiver must be
in writing.
Section 9. Severability. If any provision of this Note is
invalid, illegal or unenforceable, the balance of this Note shall remain in
effect, and if any provision is inapplicable to any person or circumstance, it
shall nevertheless remain applicable to all other persons and circumstances.
Section 10. Business Day. Whenever any payment or other
obligation hereunder shall be due on a day other than a Business Day, such
payment shall be made on the next succeeding Business Day (or, if such next
succeeding Business Day falls in the next calendar month, the preceding Business
Day in the appropriate calendar month).
Section 11. Security. The obligation of the Company for payment
of principal, interest and
Page 4
all other sums hereunder, in the event of default by the Company to perform
hereunder, is secured by (a) a Security Agreement of the Debtor and (b) the
pledge of certain securities by GMTH (the "Pledged Shares") under the terms and
conditions of a Collateral Pledge Agreement, by reference made a part of the
terms of this Note.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
Page 5
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed by an officer duly authorized for such purpose, as of the date first
above indicated.
TRUE TO FORM, LIMITED
By: /s/ Michael Sheppard
--------------------------------
Michael Sheppard, Treasurer
Attest:
By:
-----------------------
Page 6