Attached files
| file | filename |
|---|---|
| 8-K - FORM 8-K - KORE NUTRITION, INC. | f8k030310.htm |
| EX-2.1 - SHARE EXCHANGE AGREEMENT - KORE NUTRITION, INC. | ex2-1.htm |
PROMISSORY
NOTE
AND SECURITY
AGREEMENT
US
$150,000.00 Las Vegas, Nevada
February
26, 2010
For good
and valuable consideration, GO
ALL IN, INC., a Nevada corporation, (“Maker”), hereby makes
and delivers this Promissory Note and Security Agreement (this “Note”) in favor of
KORE NUTRITION INCORPORATED
a Nevada corporation (“Holder”), and hereby
agree as follows:
1. Principal
Obligation and Interest. For value
received, Maker promises
to pay to Holder at 200 – 736 Granville Street, Vancouver, British Columbia,
Canada V6Z 1G3, or at such other place as Holder may designate in writing, in
currently available funds of the United States, the principal sum of ONE HUNDRED
AND FIFTY THOUSAND DOLLARS ($150,000.00). Makers’ obligation under
this Note shall accrue simple interest at the rate of SEVEN AND ONE-HALF percent
(7.5%) per month from the date hereof until paid in full.
2. Payment
Terms. Maker
agrees to remit payment in full of all principal and interest due hereunder to
Holder on the earlier of (i) September 1, 2010; and (ii) the date on which the
Maker or the Holder terminates the Share Exchange Agreement between the Maker,
the Holder and the shareholders of the Maker dated February 26, 2010, in
accordance with Section 12 of such agreement (the “Maturity Date”). Maker shall
have the right to prepay all or any part of the principal under this Note
without penalty.
3. Grant of
Security Interest. As collateral
security for the prompt, complete, and timely satisfaction of all present and
future indebtedness, liabilities, duties, and obligations of Maker to Holder
evidenced by or arising under this Note, and including, without limitation, all
principal and interest payable under this Note, any future advances added to the
principal amount due hereunder, and all attorneys’ fees, costs and expenses
incurred by Maker in the collection or enforcement of the same (collectively,
the “Obligations”), Maker
hereby pledges, assigns and grants to Holder a continuing security interest and
lien in all of Makers’ right, title and interest in and to the property, whether
now owned or hereafter acquired by Makers and whether now existing or hereafter
coming into existence or acquired, described on Exhibit “A” attached hereto and
incorporated herein by this reference (collectively, the “Collateral”). As
applicable, the terms of this Note with respect to Maker’s granting of a
security interest in the Collateral to Holder shall be deemed to be a security
agreement under applicable provisions of the Uniform Commercial Code (“UCC”), with Makers as
the debtors and Holder as the secured party.
4. Perfection. Upon the
execution and delivery of this Note, Maker authorizes Holder to file such
financing statements and other documents in such offices as shall be necessary
or as Holder may reasonably deem necessary to perfect and establish the priority
of the liens granted by this Note. Maker agrees, upon Holder’s request, to take
all such actions as shall be necessary or as Lender may reasonably request to
perfect and establish the priority of the liens granted by this
Note.
5. Conversion of
Note.
a. Conversion
of Note into Common Shares of the Maker. In the event that the
Maker has not repaid the entire principal amount and all accrued interest
thereon by the Maturity Date, the Holder shall be entitled to convert any
outstanding principal amount and all accrued but unpaid interest thereon into
common shares in the capital of the Maker (the “Maker Conversion Shares”) at the
conversion price of $0.50 per share.
b. Conversion
of Note into Common Shares of the Holder. In the event that
the Holder terminates the Share Exchange Agreement in accordance with Section 12
thereof, the Maker shall be entitled to convert any outstanding principal amount
and all accrued but unpaid interest thereon into common shares of the Holder
(the “Holder Conversion Shares” and together with the Maker Conversion Shares,
the “Conversion Shares”) at the conversion price of $0.50 per
share.
c. Manner of
Exercise of Right to Convert. The Holder or the
may exercise its rights to convert under this Section 5 by sending to the other
party at its principal address a notice (the “Notice”) exercising its right to
convert in accordance with the provisions of this Section 5. Upon
receipt of the Notice, the delivering party (being the “Converting Party”) shall
be entered in the books of the other party (being the “Issuing Party”) as at the
date of conversion as the holder of such number of Conversion Shares into which
the outstanding principal amount and all accrued but unpaid interest thereon is
convertible and, as soon as practicable, and, in any event, no more than 10 days
after delivery of the Notice by the Converting Party, the Issuing Party shall
deliver to the Converting Party a certificate or certificates for such
Conversion Shares.
d. Conversion
Shares. The Conversion Shares issued upon such conversion
shall rank only in respect of dividends declared in favour of shareholders of
record on and after the date of conversion or such later date as the Converting
Party becomes the holder of record of Conversion Shares pursuant to this Section
5. As of and from the applicable date, the Conversion Shares so
issued shall, for all purposes, be and be deemed to be issued and outstanding as
fully paid and non-assessable Corporation Conversion Shares or Holder Conversion
Shares, as applicable.
6. Representations
and Warranties of Maker. Maker hereby
represents and warrants the following to Holder:
(a) Maker
and those executing this Note on its behalf have the full right, power, and
authority to execute, deliver and perform the Obligations under this Note, which
are not prohibited or restricted under articles of incorporation of the
Maker. This Note has been duly executed and delivered by an
authorized officer of the Maker and constitutes a valid and legally binding
obligation of the Maker enforceable in accordance with its terms.
(b) The
execution of this Note and Maker’s compliance with the terms, conditions and
provisions hereof does not conflict with or violate any provision of any
agreement, contract, lease, deed of trust, indenture, or instrument to which
Maker is a party or by which Maker is bound, or constitute a default thereunder
or result in the imposition of any lien, charge, encumbrance, claim or security
interest of any nature whatsoever upon any of the Collateral.
(c) The
security interest granted hereby in and to the Collateral constitutes a present,
valid, binding and enforceable security interest as collateral security for the
Obligations, and, except as to leased equipment or purchase-money encumbrances
existing as of the date of this Note as expressly disclosed to Holder in
writing, such interests, upon perfection, will be senior and prior to any liens,
encumbrances, charges, title defects, interests and rights of any others with
respect to such Collateral.
7. Covenants
of Makers. For so long as any Obligations remain outstanding,
Makers shall not sell, assign or transfer any of the Collateral, or any part
thereof or interest therein.
8. Use of
Collateral. For so long as no
event of default shall have occurred and be continuing under this Note, Maker
shall be entitled to use and possess the Collateral and to exercise its rights,
title and interest in all contracts, agreements, and licenses subject to the
rights, remedies, powers and privileges of Holder under this Note and to such
use, possession or exercise not otherwise constituting an event of
default.
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Notwithstanding
anything herein to the contrary, Maker shall remain liable to perform its duties
and obligations under the contracts and agreements included in the Collateral in
accordance with their respective terms to the same extent as if this Note had
not been executed and delivered; the exercise by Holder of any right, remedy,
power or privilege in respect of this Note shall not release the Maker from any
of its duties and obligations under such contracts and agreements; and Holder
shall have no duty, obligation or liability under such contracts and agreements
included in the Collateral by reason of this Note, nor shall Holder be obligated
to perform any of the duties or obligations of Maker under any such contract or
agreement or to take any action to collect or enforce any claim (for payment)
under any such contract or agreement.
9. Defaults. The following
events shall be defaults under this Note:
a. Maker’s
failure to remit any payment under this Note on before the date due, if such
failure is not cured in full within five (5) days of written notice of
default.
b. Maker’s
failure to perform or breach of any non-monetary obligation or covenant set
forth in this Note if such failure is not cured in full within ten (10) days
following delivery of written notice thereof from Holder to Maker;
c. If Maker
is dissolved, whether pursuant to any applicable articles of incorporation,
by-laws, and/or any applicable laws, or otherwise.
10. Rights
and Remedies of Holder. Upon the occurrence of an event of
default by Maker under this Note, then, in addition to all other rights and
remedies at law or in equity, Holder may exercise any one or more of the
following rights and remedies:
a. Accelerate
the time for payment of all amounts payable under this Note by written notice
thereof to Maker, whereupon all such amounts shall be immediately due and
payable;
b. Pursue
and enforce all of the rights and remedies provided to a secured party with
respect to the Collateral under the Uniform Commercial Code; and
c. Pursue
any other rights or remedies available to Holder at law or in
equity.
11. Interest
To Accrue Upon Default. Upon the occurrence of an
event of default by Makers under this Note, the balance then owing under the
terms of this Note shall accrue interest at the rate of SEVEN AND
ONE-HALF percent (7.5%) per month from the date of default until Holder is
satisfied in full.
12. Full
Recourse. The liability of Maker for the Obligations shall not
be limited to the Collateral, and Maker shall have full liability therefor
beyond the Collateral.
13. Representation
of Counsel. Maker
acknowledges that they have consulted with or have had the opportunity to
consult with their legal counsel prior to executing this Note. This
Note has been freely negotiated by Maker and Holder and any rule of construction
to the effect that any ambiguities are to be resolved against the drafting party
shall not be employed in the interpretation of this Note.
14. Choice of
Laws; Actions. This Note shall
be constructed and construed in accordance with the internal substantive laws of
the State of Nevada, without regard to the choice of law principles of said
State. Maker acknowledges that this Note has been negotiated in Clark
County, Nevada. Accordingly, the exclusive venue of any action, suit,
counterclaim or cross claim arising under, out of, or in connection with this
Note
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shall be
the state or federal courts in Clark County, Nevada. Maker hereby
consents to the personal jurisdiction of any court of competent subject matter
jurisdiction sitting in Clark County, Nevada.
15. Usury
Savings Clause. Maker expressly agrees and acknowledges that
Maker and Holder intend and agree that this Note shall not be subject to the
usury laws of any state other than the State of
Nevada. Notwithstanding anything contained in this Note to the
contrary, if collection from Maker of interest at the rate set forth herein
would be contrary to applicable laws, then the applicable interest rate upon
default shall be the highest interest rate that may be collected from Maker
under applicable laws at such time.
16. Costs of
Collection. Should the
indebtedness represented by this Note, or any part hereof, be collected at law,
in equity, or in any bankruptcy, receivership or other court proceeding, or this
Note be placed in the hands of any attorney for collection after default, Maker
agrees to pay, in addition to the principal and interest due hereon, all
reasonable attorneys’ fees, plus all other costs and expenses of collection and
enforcement, including any fees incurred in connection with such proceedings or
collection of the Note and/or enforcement of Holder’s rights with respect to the
administration, supervision, preservation or protection of, or realization upon,
any Collateral securing payment hereof.
17. Miscellaneous.
a. This
Note shall be binding upon Maker and shall inure to the benefit of Holder and
its successors, assigns, heirs, and legal representatives.
b. Any
failure or delay by Holder to insist upon the strict performance of any term,
condition, covenant or agreement of this Note, or to exercise any right, power
or remedy hereunder shall not constitute a waiver of any such term, condition,
covenant, agreement, right, power or remedy.
c. Any
provision of this Note that is unenforceable shall be severed from this Note to
the extent reasonably possible without invalidating or affecting the intent,
validity or enforceability of any other provision of this Note.
d. In
the event of any action at law or in equity to enforce this Note, the prevailing
party shall be entitled to recover its reasonable attorneys’ fees and costs from
the unsuccessful party.
e. This
Note may not be modified or amended in any respect except in a writing executed
by the party to be charged.
f. Except
as otherwise expressly provided in this Note, each party will pay for its own
costs and expenses incurred in connection with this Note and the transactions
contemplated by it. The fees and expenses referred to in this section
are those which are incurred in connection with the negotiation, preparation,
execution and performance of this Note, and the transactions contemplated by
this Note, including the fees and expenses of legal counsel, investment advisers
and accountants.
g. This
Note may be executed in any number of counterparts (including counterparts by
facsimile) and all such counterparts taken together will be deemed to constitute
one and the same instrument. The party sending the facsimile transmission will
also deliver the original signed counterpart to the other party, however,
failure to deliver the original signed counterpart shall not invalidate this
Note.
18. Notices. All notices
required to be given under this Note shall be given as follows or at such other
address as a party may designate by written notice to the other
parties:
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To
the Maker at:
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Go
All In, Inc.
2505
Anthem Village, Suite E-460
Henderson,
Nevada, USA 89052
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Attention:
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Jeffrey
Todd
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Telephone:
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Facsimile:
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With
a copy, which shall not constitute notice, to:
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Cane
Clark LLP
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3273
E. Warm Springs Rd.
Las
Vegas, Nevada, USA 89120
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Attention:
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Scott
Doney
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Telephone:
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(702)
312-6255
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Facsimile:
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(702)
944-7100
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To
the Holder at:
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Kore
Nutrition Incorporated
200-736
Granville St
Vancouver,
BC V6Z 1G3
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Attention:
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Deanna
Embury
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Telephone:
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(604)
685-6472
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Facsimile:
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(604)
685-5829
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With a copy, which shall not
constitute notice, to:
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Clark
Wilson LLP
Barristers
and Solicitors
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Suite
800 – 885 West Georgia Street
Vancouver,
British Columbia, Canada V6C 3H1
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Attention:
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Virgil
Z. Hlus
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Telephone:
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(604)
687-5700
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Facsimile:
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(604)
687-6314
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A notice
is deemed to be delivered and received (i) if sent by personal delivery, on the
date of delivery if it is a business day and the delivery was made prior to 4:00
p.m. (local time in place of receipt) and otherwise on the next business day;
(ii) if sent by same-day service courier, on the date of delivery if sent on a
business day and delivery was made prior to 4:00 p.m. (local time in place of
receipt) and otherwise on the next business day; (iii) if sent by overnight
courier, on the next business day; or (iv) if sent by facsimile, on the business
day following the date of confirmation of transmission by the originating
facsimile. A party may change its address for service from time to time by
providing a notice in accordance with the foregoing. Any subsequent notice must
be sent to the party at its changed address. Any element of a party’s address
that is not specifically changed in a notice will be assumed not to be
changed.
[THE
REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK. THE NEXT PAGE IS
THE SIGNATURE PAGE.]
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IN WITNESS WHEREOF, this Note
has been executed effective the date and place first written above.
GO
ALL IN, INC.
By: /s/
Jeffrey
Todd
Its: President
Print Name: Jeffrey
Todd
Date: February 26,
2010
KORE
NUTRITION INCORPORATED
By: /s/
Deanna
Embury
Its: President
Print Name: Deanna
Embury
Date: February 26,
2010
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Exhibit
“A”
Collateral
Each and
all of the following in which Go All In, Inc. has any right, title, or interest,
regardless of the manner in which such items are formally held or titled; all as
defined in the Nevada Uniform Commercial Code - Secured Transactions (Nevada
Revised Statutes (“NRS”) §§ 104.9101 et. seq.) as of the date of the Note, and
as the same may be amended hereafter:
(1)
Accounts, as defined in NRS 104.9102(1)(a)
(2) Cash
proceeds, as defined in NRS 104.9102(1)(I)
(3)
Chattel paper, as defined in NRS 104.9102(1)(k)
(4)
Commercial tort claims, as defined in NRS 104.9102(1)(m)
(5)
Commodity accounts and commodity contracts, as defined in NRS 104.9102(1)(n) and
NRS 104.9102(1)(o), respectively,
(6)
Deposit accounts, as defined in NRS 104.9102(1)(cc)
(7)
Documents, as defined in NRS 104.9102(1)(dd)
(8)
Electronic chattel paper, as defined in NRS 1049102(1)(ee)
(9)
Equipment, as defined in NRS 104.9102(1)(gg)
(10)
General intangibles, as defined in NRS 104.9102(1)(pp)
(11)
Goods, as defined in NRS 104.9102(1)(rr)
(12)
Instruments, as defined in NRS 104.9102(1)(uu)
(13)
Inventory, as defined in NRS 104.9102(1)(vv)
(14)
Investment property, as defined in NRS 104.9102(1)(ww)
(15)
Letter-of-credit right, as defined in NRS 104.9102(1)(yy)
(16)
Noncash proceeds, as defined in NRS 104.9102(1)(fff)
(17)
Payment intangible, as defined in NRS 104.9102(1)(iii)
(18)
Proceeds, as defined in NRS 104.9102(1)(lll)
(19)
Promissory notes, as defined in NRS 104.9102(1)(mmm)
(20)
Record, as defined in NRS 104.9102(1)(qqq)
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(21) Software, as defined in NRS 104.9102(1)(www)
(22)
Supporting obligations, as defined in NRS 104.9102(1)(yyy)
(23)
Tangible chattel paper, as defined in NRS 104.9102(1)(zzz)
(24) The
following, as defined in NRS 104.9102(2): certificated securities, contracts for
sale, leases, lease agreements, lease contracts, leasehold interests, letters of
credit, negotiable instruments, notes, proceeds of letters of credit,
securities, security certificates, security entitlements, and uncertificated
securities.
In
addition, the Collateral shall include all copyrights, all patents and patent
applications (including the inventions and improvements described and claimed
therein together with the reissues, divisions, continuations, renewals,
extensions and continuations in-part thereof), all trade names, trademarks and
service marks, logos, trademark and service mark registrations (including all
renewals of trademark and service mark registrations, and all rights
corresponding thereto throughout the world together, in each case, with the
goodwill of the business connected with the use of, and symbolized by, each such
trade name, trademark and service mark, but excluding any such registration that
would be rendered invalid, abandoned, void or unenforceable by reason of its
being included as part of the Collateral), all inventions, processes, production
methods, proprietary information, know-how and trade secrets, all licenses or
user or other agreements granted to the Makers with respect to any of the
foregoing, in each case whether now or hereafter owned or used (including the
licenses or other agreements with respect to any of the foregoing).
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