EXHIBIT 4.3
Form of Promissory Note March 2003
Exhibit 4.3
THIS PROMISSORY NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933,
AS AMENDED. THE NOTE HAS BEEN ACQUIRED FOR INVESTMENT AND MUST BE HELD
INDEFINITELY and MAY NOT BE SOLD, TRANSFERRED OR OTHERWISE DISPOSED OF UNLESS IT
IS SUBSEQUENTLY REGISTERED UNDER SAID ACT OR, IN THE OPINION OF COUNSEL TO THE
COMPANY, AN EXEMPTION FROM REGISTRATION UNDER SAID ACT IS AVAIABLE.
PROMISSORY NOTE
$ ___________________ Date: _______________ ,
2003
FOR VALUE RECEIVED, Corniche Group Incorporated, a Delaware corporation,
("Maker") promises to pay to _____________________________________ ("Payee"), in
lawful money of the United States of America, the principal sum of
_________________________ ($ __________ ), together with interest thereon
accruing at an annual rate equal to 15%, in the manner provided below. Interest
shall be calculated on the basis of a year of 365 or 366 days, as applicable,
and charged for the actual number of days elapsed.
1. PAYMENTS
1.1 Principal and interest.
Interest on the unpaid principal amount shall be payable monthly
in arrears on the last day of each calendar month, commencing
__________________ , 2003 until the entire principal amount shall
be paid in full. All principal and accrued interest shall be paid
in full on __________ , 2003.
1.2 Manner of Payment
All payments of principal and interest on this Note shall be made
by check at ____________________________ or at such other place
in the United States of America as Payee shall designate to Maker
in writing. If any payment of principal or interest on this Note
is due on a day which is not a Business Day, such payment shall
be due on the next succeeding Business Day. "Business Day" means
any day other than a Saturday, Sunday or legal holiday in the
State of New York.
1.3 Prepayment
Maker may, without premium or penalty, at any time and from time
to time, prepay all or any portion of the outstanding principal
balance due under this Note, provided that each such prepayment
is accompanied by accrued interest on the amount of principal
prepaid calculated to the date of such prepayment. Any partial
prepayments shall be applied first to accrued interest and then
to principal.
2. DEFAULTS
2.1 Events of Default
The occurrence of any one or more of the following events with
respect to Maker shall constitute an event of default hereunder
("Event of Default"):
(a)If Maker shall fail to pay when due any payment of principal
or interest on this Note.
(b)If, pursuant to or within the meaning of the United States
Bankruptcy Code or any other federal or state law relating to
insolvency or relief of debtors (a "Bankruptcy Law"), Maker
shall (i) commence a voluntary case or proceeding; (ii)
consent to the entry of an order for relief against it in an
involuntary case; (iii) consent to the appointment of a
trustee, receiver, assignee, liquidator or similar official;
(iv) make an assignment for the benefit of its creditors; or
(v) admit in writing its inability to pay its debts as they
become due.
(c)If a court of competent jurisdiction enters an order or decree
under any Bankruptcy Law that (i) is for relief against Maker
in an involuntary case; (ii) appoints of a trustee, receiver,
assignee, liquidator or similar official for the Maker or
substantially all of the Maker's properties; or (iii) orders
the liquidation of the Maker, and in each case the order is
not dismissed within 90 days.
2.2 Remedies
Upon the occurrence of an Event of Default hereunder (unless all
Events of Default have been cured or waived by Payee), (a) the
interest rate will increase to a default rate of 20% per annum
effective upon such Event of Default, and (b) Payee may, at its
option, (i) by written notice to Maker, declare the entire unpaid
principal balance of this Note, together with all accrued
interest thereon, immediately due and payable, and (ii) exercise
all and any rights and remedies available to it under applicable
law, including, without limitation, the right to collect from
maker all sums due under this Note. Maker shall pay all
reasonable costs and expenses incurred by or on behalf of Payee
in connection with Payee's exercise of any or all of its rights
and remedies under this Note, including, without limitation,
reasonable attorneys' fees and expenses.
3. REPRESENTATIONS BY PAYEE
Payee represents and warrants to Maker as follows:
(a)Payee has received and examined all information, including
financial statements, of or concerning Maker which Payee
considers necessary to making an informed decision regarding
this Note. In addition, Payee has had the opportunity to ask
questions of, and receive answers from, the officers and
agents of Maker concerning Maker and to obtain such
information, to the extent such persons possessed the same
or could acquire it without unreasonable effort or expense,
as Payee deemed necessary to verify the accuracy of the
information referred to herein.
(b) The Payee acknowledges and understands that (i) the Maker
will use the proceeds of this Note to enable Maker to
commence the establishment of new business operations; (ii)
the proceeds of this Note will not be sufficient to provide
Maker with the necessary funds to achieve its current
business plan; (iii) the Maker does not have sufficient cash
available to repay this Note; (iv) this Note will not be
guaranteed nor will it be secured by any assets of Maker nor
senior to any other indebtedness of Maker; (v) the Maker
will pay a commission to Maker's agent, Robert M. Cohen &
Company, Inc. equal to 10% of the principal amount loaned
pursuant to this Note; and (v) Payee bears the economic risk
of never being repaid on this Promissory Note.
(c) The Payee hereby certifies that Payee is an "Accredited
Investor" (as that term is defined by Regulation D under the
Securities Act of 1933, as amended) because at least one of
the following statements is applicable to Payee:
(i) Payee is an Accredited Investor because the Payee
had individual income of more than $200,000 in each of
the two prior calendar years and reasonably
expects to have individual income in excess of
$200,000 during the current calendar year.
(ii) The Payee is an Accredited Investor because the Payee
and his spouse together had income of more than
$300,000 in each of the two prior calendar years
and reasonably expect to have joint income in excess of
$300,000 during the current calendar year.
(iii) The Payee is an Accredited Investor because the Payee
has an individual net worth, or the Payee and his
spouse have a joint net worth of more than $1,000,000.
(d) Payee is acquiring this Note for his own account, for
investment purposes only, and not with a view to the resale
or distribution of all or any part thereof.
(e) Payee acknowledges that this Note (i) has not been
registered under applicable securities laws, (ii) will be a
"restricted security" as defined in applicable securities
laws, (iii) has been issued in reliance on the statutory
exemptions from registration contemplated by applicable
securities laws based (in part) on the accuracy of Payee's
representations contained herein, and (iv) will not be
transferable without registration under applicable
securities laws, unless an exemption from such registration
requirements is available.
(f) Payee has reviewed and understands Maker's (i) Annual Report
on Form 10-K for the fiscal year ended December 31, 2001;
(ii) Quarterly Report on Form10-Q for the three and nine
months ended September 30, 2002; (iii) Current Report on
Form 8-K dated February 6, 2003; and (iv) Current Report on
Form 8-K dated February 28, 2003.
4. MISCELLANEOUS
4.1 Waiver
The rights and remedies of Payee under this Note shall be
cumulative and not alternative. No waiver by Payee of any right or
remedy under this Note shall be effective unless it is in writing
and signed by Payee. Neither the failure nor any delay in
exercising any right, power or privilege under this Note will
operate as a waiver of such right, power or privilege and no
single or partial exercise of any such right, power or privilege
by Payee will preclude any other or further exercise of such
right, power or privilege or the exercise of any other right,
power or privilege. To the maximum amount permitted by applicable
law, (i) no claim or right of Payee arising out of this Note can
be discharged by Payee, in whole or in part, by a waiver or
renunciation of the claim or right unless in a writing, signed by
Payee; (b) no waiver that may be given by Payee will be applicable
except in the specific instance for which it is given; and (c) no
notice to or demand on Maker will be deemed to be a waiver of any
obligation of Maker or of the right of Payee to take further
action without notice or demand as provided in this Note.
Maker acknowledges that this Note and Maker's obligations under
this Note are, and shall at all times continue to be, absolute and
unconditional in all respects, and shall at all times be valid and
enforceable. To the extent permitted by applicable law, Maker
hereby absolutely, unconditionally and irrevocably forever waives
any and all right to assert any defense, set-off, off-set,
counterclaim, cross-claim, or claim of any nature whatsoever with
respect to this Note or Maker's obligations hereunder.
4.2 Notices
Any notice or communication to be given hereunder by any party, to
the other party shall be in writing and shall be deemed to have
been given when personally delivered, or one day after the date
sent by recognized overnight courier or transmitted by facsimile,
which transmission by facsimile has been confirmed or 3 (three)
days after the date sent by registered or certified mail, postage
prepaid, as follows:
If to Maker, addressed to it at:
Corniche Group Incorporated
330 South Service Road
Suite 120
Melville, NY 11747
Attn: Mark Weinreb
Facsimile Number: (631) 574 4956
If to Payee, addressed to:
Name: ______________________________
Address: ___________________________
___________________________
Or persons or addresses as may be designated in writing by
the party to receive such notice.
4.3 Severability
If any provision of this Note is held invalid or unenforceable by
any court of competent jurisdiction, the other provisions of this
Note will remain in full force and effect. Any provision of this
Note held invalid or unenforceable only in part or degree will
remain in full force and effect to the extent not held invalid or
unenforceable.
4.4 Governing Law.
This Promissory Note will be governed by the laws of the State of
New York without regard to conflicts of laws principles.
4.5 Assignment; Parties in Interest
This Note shall bind Maker and its successors and assigns. This
Note shall not be assigned or transferred by Maker, without the
express prior written consent of Payee, and this Note will inure
to the benefit of Payee and his heirs, estates, representatives,
administrators, successors and assigns.
4.6 Section Headings, Construction
The headings of Sections in this Note are provided for convenience
only and will not affect its construction or interpretation. All
references to "Section" or "Sections" refer to the corresponding
Section or Sections of this Note unless otherwise specified.
All words used in this Note will be construed to be of such gender
or number as the circumstances require. Unless otherwise expressly
provided, the words "hereof" and "hereunder" and similar
references refer to this Note in its entirety and not to any
specific section or subsection hereof.
4.7 Savings Clause
If, at any time, the rate of interest under this Note shall be
deemed by any competent court of law, governmental agency or
tribunal to exceed the maximum rate of interest permitted by the
laws of any applicable jurisdiction or the rules or regulations of
any regulatory authority or agency, then during such time as such
rate of interest would be deemed excessive, that portion of each
interest payment attributable to that portion of such interest
rate that exceeds the maximum rate of interest so permitted shall
be deemed a voluntary prepayment of principal or, if all principal
has been paid, that portion of each interest payment attributable
to that portion of such interest rate that exceeds the maximum
rate of interest so permitted shall be promptly refunded to Maker.
4.8 Waiver of Jury Trial
MAKER AND PAYEE EACH HEREBY WAIVE, TO THE FULLEST EXTENT PERMITTED
BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRAIL BY JURY IN
RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF,
UNDER, OR IN CONNECTION WITH, THIS NOTE, IT BEING AGREED THAT ALL
SUCH TRAILS SHALL BE CONDUCTED SOLELY BY A JUDGE. MAKER AND PAYEE
EACH CERTIFY THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF EITHER
HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT THE OTHER WOULD NOT,
IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVERS.
MAKER AND PAYEE EACH AGREE AND ACKNOWLEDGE THAT IT HAS BEEN
REPRESENTED BY INDEPENDENT COUNSEL IN CONNECTION WITH THIS NOTE OR
BEEN ADVISED THAT IT SHOULD BE REPRESENTED BY INDEPENDENT COUNSEL
IN CONNECTION WITH THIS NOTE. IF MAKER OR PAYEE HAS DECIDED NOT TO
BE REPRESENTED BY INDEPENDENT COUNSEL IN CONNECTION WITH THIS
NOTE, IT IRREVOCABLY AND FOREVER WAIVES ANY AND ALL DEFENSES OR
RIGHTS ARISING OUT OF OR RELATED TO SAID DECISION.
IN WITNESS WHEREOF, Maker has executed and delivered this Note as of the date
first stated above.
CORNICHE GROUP INCORPORATED
By:
_______________________________
Name: Mark Weinreb
Title: President and Chief
Executive Officer
Accepted and agreed to:
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Payee