EXHIBIT 10.14
THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933,
AS AMENDED, OR ANY APPLICABLE STATE SECURITIES LAWS. THEY MAY NOT BE SOLD,
OFFERED FOR SALE, PLEDGED OR HYPOTHECATED IN THE ABSENCE OF A REGISTRATION
STATEMENT IN EFFECT WITH RESPECT TO THE SECURITIES UNDER SUCH ACT AND APPLICABLE
LAWS OR AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF SUCH ACT AND
APPLICABLE LAWS OR AN OPINION OF COUNSEL SATISFACTORY TO THE COMPANY THAT SUCH
REGISTRATION IS NOT REQUIRED.
Avatech Solutions Subsidiary, Inc.
10% SUBORDINATED NOTE
with Warrant - W- Owings Mills, Maryland
- --------------- As of June 1, 2003
Avatech Solutions Subsidiary, Inc., a Delaware corporation (the "Company"),
the principal office of which is located at 11403A Cronhill Drive, Owings Mills,
Maryland 21117, for value received, hereby promises to pay to
or his registered assigns, the sum of
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($ ), or such lesser amount as
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shall then equal the outstanding principal amount hereof. Any unpaid accrued
interest hereon, as set forth below, shall be due and payable on the earlier to
occur of (i) the maturity date, which is July 1, 2004, or (ii) when declared due
and payable by the Holder upon the occurrence of an Event of Default (as defined
below). Payment for all amounts due hereunder shall be made by mail to the
registered address of the Holder. This Note is one of an issue of the Company's
10% Subordinated Notes in the aggregate principal amount of $1,500,000.
The following is a statement of the rights of the Holder of this Note and
the conditions to which this Note is subject, and to which the Holder hereof, by
the acceptance of this Note, agrees:
1. Definitions. As used in this Note, the following terms, unless the
context otherwise requires, have the following meanings:
(i) "Company" includes any corporation which shall succeed to or
assume the obligations of the Company under this Note.
(ii) "Holder," when the context refers to a holder of this Note, shall
mean any person who shall at the time be the registered holder of
this Note.
2. Interest. The Company shall pay simple interest at the rate of ten
percent (10%) per annum on the principal of this Note outstanding during the
period beginning on the date of issuance of this Note and ending on the date
that the principal amount of this Note becomes due and payable. Interest shall
be payable on the calendar quarter, commencing on September 1, 2003 until
maturity or earlier prepayment.
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3. Events of Default. If any of the events specified in this Section 3
shall occur (herein individually referred to as an "Event of Default"), the
Holder of the Note may, so long as such condition exists, declare the entire
principal and unpaid accrued interest hereon immediately due and payable, by
notice in writing to the Company:
(i) Default in the payment of the principal and unpaid accrued
interest of this Note when due and payable if such default is not cured by
the Company within ten (10) days after the Holder has given the Company
written notice of such default; or
(ii) The institution by the Company of proceedings to be adjudicated
as bankrupt or insolvent, or the consent by it to the institution of
bankruptcy or insolvency proceedings against it or the filing by it of a
petition or answer or consent seeking reorganization or release under the
federal Bankruptcy Act, or any other applicable federal or state law, or
the consent by it to the filing of any such petition or the appointment of
a receiver, liquidator, assignee, trustee or other similar official of the
Company, or of any substantial part of its property, or the making by it of
an assignment for the benefit of creditors, or the taking of corporate
action by the Company in furtherance of any such action; or
(iii) If within sixty (60) days after the commencement of an action
against the Company (and service of process in connection therewith on the
Company) seeking any bankruptcy, insolvency, reorganization, liquidation,
dissolution or similar relief under any present or future statute, law or
regulation, such action shall not have been resolved in favor of the
Company or all orders or proceedings thereunder affecting the operations or
the business of the Company stayed, or if the stay of any such order or
proceeding shall thereafter be set aside, or if, within sixty (60) days
after the appointment without the consent or acquiescence of the Company of
any trustee, receiver or liquidator of the Company or of all or any
substantial part of the properties of the Company, such appointment shall
not have been vacated; or
(iv) Any declared default of the Company under any Senior Indebtedness
(as defined below) that gives the holder thereof the right to accelerate
such Senior Indebtedness, and such Senior Indebtedness is in fact
accelerated by the holder.
4. Subordination. The indebtedness evidenced by this Note is hereby
expressly subordinated, to the extent and in the manner hereinafter set forth,
in right of payment to the prior payment in full of all of the Company's Senior
Indebtedness, as hereinafter defined.
4.1 Senior Indebtedness. As used in this Note, the term "Senior
Indebtedness" shall mean the principal of and unpaid accrued interest on: (i)
all indebtedness of the Company to banks, commercial finance lenders, insurance
companies, other financial institutions regularly engaged in the business of
lending money or affiliates of the Company, which is for money borrowed by the
Company (whether or not secured), and (ii) any such indebtedness or any
debentures, notes or other evidence of indebtedness issued in exchange for or to
refinance such
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Senior Indebtedness, or any indebtedness arising from the satisfaction of such
Senior Indebtedness by a guarantor.
4.2 Default on Senior Indebtedness. If there should occur any
receivership, insolvency, assignment for the benefit of creditors, bankruptcy,
reorganization or arrangements with creditors (whether or not pursuant to
bankruptcy or other insolvency laws), sale of all or substantially all of the
assets, dissolution, liquidation or any other marshalling of the assets and
liabilities of the Company, or if this Note shall be declared due and payable
upon the occurrence of an Event of Default with respect to any Senior
Indebtedness, then (i) no amount shall be paid by the Company in respect of the
principal of or interest on this Note at the time outstanding, unless and until
the principal of and interest on the Senior Indebtedness then outstanding shall
be paid in full, and (ii) no claim or proof of claim shall be filed with the
Company by or on behalf of the Holder of this Note that shall assert any right
to receive any payments in respect of the principal of and interest on this
Note, except subject to the payment in full of the principal of and interest on
all of the Senior Indebtedness then outstanding. If there occurs an event of
default that has been declared in writing with respect to any Senior
Indebtedness, or in the instrument under which any Senior Indebtedness is
outstanding, permitting the holder of such Senior Indebtedness to accelerate the
maturity thereof, then, unless and until such event of default shall have been
cured or waived or shall have ceased to exist, or all Senior Indebtedness shall
have been paid in full, no payment shall be made in respect of the principal of
or interest on this Note, unless within three (3) months after the happening of
such event of default, the maturity of such Senior Indebtedness shall not have
been accelerated.
4.3 Effect of Subordination. Subject to the rights, if any, of the
holders of Senior Indebtedness under this Section 4 to receive cash, securities
or other properties otherwise payable or deliverable to the Holder of this Note,
nothing contained in this Section 4 shall impair, as between the Company and the
Holder, the obligation of the Company, subject to the terms and conditions
hereof, to pay to the Holder the principal hereof and interest hereon as and
when the same become due and payable, or shall prevent the Holder of this Note,
upon default hereunder, from exercising all rights, powers and remedies
otherwise provided herein or by applicable law.
4.4 Subrogation. Subject to the payment in full of all Senior
Indebtedness and until this Note shall be paid in full, the Holder shall be
subrogated to the rights of the holders of Senior Indebtedness (to the extent of
payments or distributions previously made to such holders of Senior Indebtedness
pursuant to the provisions of Section 4.2 above) to receive payments or
distributions of assets of the Company applicable to the Senior Indebtedness. No
such payments or distributions applicable to the Senior Indebtedness shall, as
between the Company and its creditors, other than the holders of Senior
Indebtedness and the Holder, be deemed to be a payment by the Company to or on
account of this Note; and for the purposes of such subrogation, no payments or
distributions to the holders of Senior Indebtedness to which the Holder would be
entitled except for the provisions of this Section 4 shall, as between the
Company and its creditors, other than the holders of Senior Indebtedness and the
Holder, be deemed to be a payment by the Company to or on account of the Senior
Indebtedness.
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4.5 Undertaking. By its acceptance of this Note, the Holder agrees to
execute and deliver such documents as may be reasonably requested from time to
time by the Company or the lender of any Senior Indebtedness in order to
implement the foregoing provisions of this Section 4.
5. Prepayment. Prior to January 1, 2004, this Note may not be prepaid
except with the express written consent of Holders whose Notes the Company
desires to prepay. Subject to the preceding sentence, upon twenty (20) days'
prior written notice to the Holder, the Company may at any time prepay in whole
or in part the principal sum, plus accrued interest to date of payment, of this
Note.
6. Assignment. Subject to the restrictions on transfer described in Section
8 below, the rights and obligations of the Company and the Holder of this Note
shall be binding upon and benefit the successors, assigns, heirs, personal and
legal representatives, and transferees of the parties.
7. Waiver and Amendment. Any provision of this Note may be amended, waived
or modified upon the written consent of the Company and holders of all then
outstanding Notes.
8. Transfer of this Note. With respect to any offer, sale or other
disposition of this Note, the Holder will give written notice to the Company
prior thereto, describing briefly the manner thereof, together with a written
opinion of such Holder's counsel, to the effect that such offer, sale or other
distribution may be effected without registration or qualification (under any
federal or state law then in effect). Promptly upon receiving such written
notice and reasonably satisfactory opinion, if so requested, the Company, as
promptly as practicable, shall notify such Holder that such holder may sell or
otherwise dispose of this Note or such securities, all in accordance with the
terms of the notice delivered to the Company. If a determination has been made
pursuant to this Section 8 that the opinion of counsel for the holder is not
reasonably satisfactory to the Company, the Company shall so notify the Holder
promptly after such determination has been made. Each Note thus transferred and
each certificate representing the securities thus transferred shall bear a
legend as to the applicable restrictions on transferability in order to ensure
compliance with the Act, unless in the opinion of counsel for the Company such
legend is not required in order to ensure compliance with the Act. The Company
may issue stop transfer instructions to its transfer agent in connection with
such restrictions.
9. Treatment of Note. To the extent permitted by generally accepted
accounting principles, the Company will treat, account and report the Note as
debt and not equity for accounting purposes and with respect to any returns
filed with federal, state or local tax authorities.
10. Notices. Any notice, request or other communication required or
permitted hereunder shall be in writing and shall be deemed to have been duly
given if personally delivered or if telegraphed or mailed by registered or
certified mail, postage prepaid, at the respective addresses of the parties as
set forth herein. Any party hereto maybe notice so given change its address for
future notice hereunder. Notice shall conclusively be deemed to have been given
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when personally delivered or when deposited in the mail or telegraphed in the
manner set forth above and shall be deemed to have been received when delivered.
11. No Stockholder Rights. Nothing contained in this Note shall be
construed as conferring upon the Holder or any other person the right to vote or
to consent or to receive notice as a stockholder in respect of meetings of
stockholders for the election of directors of the Company or any other matters
or any rights whatsoever as a stockholder of the Company; and no dividends or
interest shall be payable or accrued in respect of this Note or the interest
represented hereby.
12. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Delaware, excluding that body of law
relating to conflict of laws.
13. Heading; References. All headings used herein are used for convenience
only and shall not be used to construe or interpret this Note. Except where
otherwise indicated, all references herein to Sections refer to Sections hereof.
IN WITNESS WHEREOF, the Company has caused this Note to be issued as of
this 1st day of June, 2003.
AVATECH SOLUTIONS SUBSIDIARY, INC.
By:
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Donald R. (Scotty) Walsh,
Chief Executive Officer
Name of Holder:
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Address:
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Do not detach this warrant without consulting the Company.
No. W - Shares
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Avatech Solutions, Inc.
A Delaware Corporation
Common Stock, Par Value $.01 per share
Stock Purchase Warrant
This warrant is issued to the registered holder of $
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principal amount of the 10% Subordinated Notes (individually, a "Note" and
collectively, the "Notes"), of Avatech Solutions Subsidiary, Inc., a Delaware
corporation (the "Company"), dated as of June 1, 2003, bearing (except for the
prefix letter "W") the same designating number as noted above and to which note
this warrant pertains. The Note is one of an issue of Notes of the Company with
an aggregate principal amount of $1,500,000.
The bearer of this warrant is entitled, upon presentation of the Note
(if the Note is then outstanding) and upon surrender of this warrant at the
offices of the Company, to subscribe for, purchase and receive
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thousand ( ) shares of the Common Stock of Avatech Solutions, Inc.
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("Avatech") for a purchase price of One Dollar and Five Cents ($1.05) per share
provided, however, no fractional shares will be issued. Upon such payment,
Avatech agrees to cause to be issued in the name of the registered holder, or
his or her nominee, a certificate or certificates duly representing the shares
so purchased.
In the event of the declaration and payment of share dividends by
Avatech on its Common Stock, or any split-up of the Common Stock, or
recapitalization of Avatech which changes the issued and outstanding shares of
Common Stock, additional shares of Avatech may be deliverable to the holder of
this warrant upon the exercise of it without additional consideration, or the
exercise price per share may be adjusted in the appropriate manner.
The purchase privilege herein contained shall expire on July 1, 2004.
If the Note to which this warrant is attached shall be prepaid, the purchase
privilege shall nevertheless continue until said date.
Nothing contained in this warrant shall affect or limit the Note to
which it pertains.
Dated as of June 1, 2003
Avatech Solutions, Inc.
By:
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Donald R. (Scotty) Walsh
Chief Executive Officer