Attached files
| file | filename |
|---|---|
| 10-Q - MODERN MEDICAL MODALITIES CORP | v193873_10q.htm |
| EX-31.2 - MODERN MEDICAL MODALITIES CORP | v193873_ex31-2.htm |
| EX-32.1 - MODERN MEDICAL MODALITIES CORP | v193873_ex32-1.htm |
| EX-31.1 - MODERN MEDICAL MODALITIES CORP | v193873_ex31-1.htm |
| EX-32.2 - MODERN MEDICAL MODALITIES CORP | v193873_ex32-2.htm |
| EX-10.13 - MODERN MEDICAL MODALITIES CORP | v193873_ex10-13.htm |
EXHIBIT
10.12
NEITHER
THE ISSUANCE AND SALE OF THE SECURITIES REPRESENTED BY THIS CERTIFICATE NOR THE
SECURITIES INTO WHICH THESE SECURITIES ARE CONVERTIBLE HAVE BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR APPLICABLE STATE SECURITIES
LAWS. THE SECURITIES MAY NOT BE OFFERED FOR SALE, SOLD, TRANSFERRED OR ASSIGNED
(I) IN THE ABSENCE OF (A) AN EFFECTIVE REGISTRATION STATEMENT FOR THE SECURITIES
UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR (B) AN OPINION OF COUNSEL, IN A
FORM REASONABLY ACCEPTABLE TO THE COMPANY, THAT REGISTRATION IS NOT REQUIRED
UNDER SAID ACT OR (II) UNLESS SOLD PURSUANT TO RULE 144 OR RULE 144A UNDER SAID
ACT. NOTWITHSTANDING THE FOREGOING, THE SECURITIES MAY BE PLEDGED IN CONNECTION
WITH A BONA FIDE MARGIN ACCOUNT OR OTHER LOAN OR FINANCING ARRANGEMENT SECURED
BY THE SECURITIES.
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Date:
April 22, 2010
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BEST
PLASTICS, LLC
AND
MICHAEL BOHBOT
CONVERTIBLE
PROMISSORY NOTE
Due
October 22, 2010
FOR VALUE
RECEIVED, the adequacy of which is hereby acknowledged, Best Plastics, LLC, a
limited liability company organized under the laws of the state of New Jersey
(the “ Company
”), and Michael Bohbot a/k/a Michel Buchbut (herein, “Bohbot”), individually,
hereby jointly and
severally promise unconditionally to pay to the order of Modern Medical
Modalities Corporation, a company organized under the laws of the State of New
Jersey (including any successor or permitted transferee hereunder, the “ Holder ”) in lawful
money of the United States of America (“ Dollars ” or “ US$ ”) and in
immediately available funds, the principal sum of Seven Hundred Thousand Dollars
(US$700,000.00) (subject to increase as provided below, the “principal amount”)
on the Maturity Date, as hereinafter defined, and to pay interest on such
principal amount of this Unsecured Convertible Promissory Note (the “ Note ”). This Note
supersedes and replaces that certain $500,000 promissory note dated ________ and
that certain $600,000 promissory note dated ___________, each previously issued
by Best Plastics, LLC to Holder, which promissory notes have been cancelled and
are replaced by this Note.
1.
Principal. The
Company, and Bohbot, individually, agree that the Holder may in its sole
discretion, make additional loans to the Company prior to the Maturity Date of
up to an additional $300,000 under the terms of this Note, and that any such
amounts will automatically (and without any revision of this Note) be included
within the “principal amount” owed under this Note. Unless earlier repaid or
otherwise converted in full, the entire unpaid principal amount of this Note and
all interest accrued thereon shall be paid on the Maturity Date. Promptly
following the payment in full of this Note, the Holder shall surrender this Note
to the Company for cancellation.
2.
Allocation.
Except as otherwise provided herein, all payments made hereunder (whether in
prepayment or otherwise) shall be applied first against any sums incurred by the
Holder for the payment of any expenses in enforcing the terms of this Note, then
against any interest then due hereunder and finally against
principal.
3.
Interest.
Interest on the Note shall accrue at a rate of six percent (6%) per annum from
the date of each separate amount loaned by Holder (or its designees) to Company
(all such amounts and respective dates to be included on Appendix A hereto).
Interest shall be computed on the basis of a 360-day year applied to actual days
elapsed. The rate of interest payable under the Note from time to time shall in
no event exceed the maximum rate, if any, permissible under applicable law. All
payments of Interest shall be made in cash or, in the sole discretion of the
Holder, in Membership Interests (as defined below) in connection with and at
such time as each conversion of the Note occurs at the sole option of the Holder
as provided below. Interest shall be payable in full on maturity.
4. Payments and
Redeption. All payments to be made by the Company or Bohbot in respect of
this Note shall be made in U.S. Dollars by wire transfer to an account
designated by the Holder by written notice to the Company and/or Bohbot. If the
due date of any payment in respect of this Note would otherwise fall on a day
that is not a Business Day, such due date shall be extended to the next
succeeding Business Day. All amounts payable under this Note shall be paid free
and clear of, and without reduction by reason of, any deduction, setoff, or
counterclaim. The Company’s obligations under this Note are secured pursuant to
that certain Security Agreement between the Company, Bohbot and Holder of even
date herewith (the “ Security Agreement
”). The Holder acknowledges that in the event of a claim, it would have a second
lien position in certain assets of the Company, after the lien of Coral Capital
Solutions, LLC and GP Sales Corp. THERE IS NO PREPAYMENT ALLOWED UNDER THIS NOTE
WITHOUT THE PRIOR WRITTEN CONSENT OF THE HOLDER (WHICH MAY WITHHELD IN ITS SOLE
DISCRETION.)
5.
Conversion of
Note. On the terms and conditions set forth in this Section 5, this
Note shall be convertible by the Holder into nonassessable membership interests
of the Company (all outstanding interest being collectively, the “ Membership Interests
”), or into ownership of any successor entity in the event of the sale or
transfer of the Company’s Membership Interests, substantially all of the assets
of the Company, or the merger of the Company with or into another
entity.
At any
time or from time to time on or after the Issuance Date, the Holder shall be
entitled to convert, at the Holder’s sole option, any portion of the outstanding
and unpaid principal and interest accrued under this Note into fully paid
Membership Interests, at the Conversion Rate (as defined below). Conversion
shall be into the most senior (in terms of distributions, voting rights, etc.)
type or class of ownership interest of the Company that is then authorized or
outstanding.
a)
Conversion
Rate. For each $100,000.00 of the Note that is converted, the Company
shall immediately issue a
minimum of two percent (2%), of its fully-diluted Membership Interests to
Holder (the “ Conversion Rate ”).
If the remaining amount or balance of the Note that is being converted
represents a fractional amount of $100,000.00, the Company shall immediately
issue the pro rata percent of two percent (2%) equal to the fractional amount of
$100,000.000 being converted divided by $100,000.00 times two percent (2%) of
its fully-diluted Membership Interests to Holder. For example, if the fractional
amount of the $100,000.00 of the Note that is being converted is $50,000.00, the
percent of Membership Interests issued to the Holder would be equal to
$50,000.00 divided by $100,000.00 times 2%, or 1%. The Conversion Rate
amounts set forth above have been calculated on the basis that the Company’s
value is $5,000,000. At the option of the Holder, prior to any such conversion,
an independent, professional third party business appraisal firm selected by
Holder shall perform a valuation of the Company. The Company and Bohbot shall
cooperate in good faith with such third party business appraisal firm in
connection with the valuation of the Company. If such appraiser issues a written
appraisal showing that the Company valuation is less than US $5,000,000, the
conversion rate percentages and related amounts shall be adjusted to reflect the
lower Company value. For example, if such valuation is determined to be
$4,000,000, then conversion of $100,000 of the Note would require the issuance
of 2.5% of Membership Interests in the Company. Notwithstanding the
foregoing, in addition to all other rights of Holder under this Note and
under the Security Agreement, upon an Event of Default, the Holder shall have
the right (at its sole discretion) to convert all then-outstanding principal and
interest under this Note into 2/3rds (“two-thirds”) of the Company’s outstanding
Membership Interests, on a fully diluted basis. The Company and Bohbot,
individually, agree that a sufficient percentage of the Company’s Membership
Interests, on a fully diluted basis, shall be placed with a third party escrow
agent selected by Holder and on terms acceptable to Holder upon the execution of
this Note in order to satisfy all possible conversion rights of Holder under
this Note.
b) Mechanics of
Conversion
i.
Optional
Conversion. To convert any Conversion Amount into Membership Interests on
any date (a “ Conversion Date ”),
the Holder shall (A) transmit by facsimile (or otherwise deliver), for receipt
on or prior to 11:59 p.m., Eastern Standard Time, on such date, a copy of an
executed notice of conversion in the form attached hereto as Exhibit I (the “
Conversion
Notice ”) to the Company and (B) surrender this Note to a common carrier
for delivery to the Company as soon as practicable on or following such date (or
an indemnification undertaking with respect to this Note in the case of its
loss, theft or destruction), however, until this Note is converted or repaid in
full the Holder shall not be required to surrender this Note and the Company
shall record all such conversions in its internal records. On or before the
second (2 nd )
Business Day following the date of receipt of a Conversion Notice, the Company
shall transmit by facsimile a confirmation of receipt of such Conversion Notice
to the Holder. If this Note is physically surrendered for conversion and the
outstanding principal amount of this Note is greater than the principal portion
of the Conversion Amount being converted, then the Company shall as soon as
practicable and in no event later than three (3) Business Days after receipt of
this Note and at its own expense, issue and deliver to the holder a new Note
representing the outstanding principal amount not converted. The person or
persons entitled to receive the Membership Interests issuable upon a conversion
of this Note shall be treated for all purposes as the record holder or holders
of such Membership Interests on the Conversion Date. In the event of a partial
conversion of this Note pursuant hereto, the principal amount converted shall be
deducted from the outstanding principal amount for purposes of calculating
interest payments due on the Note pursuant to Section 3.
ii.
Delivery of
Certificates. On or before the third (3rd) Business Day following the
date of receipt of a Conversion Notice, the Company shall issue and deliver to
the address as specified in the Conversion Notice, a membership certificate,
registered in the name of the Holder or its designee, for the number of
Membership Interests to which the Holder shall be entitled.
c. Notwithstanding
the provisions as set forth in Section 5, in the event of a mutually agreed upon
restructuring, divestiture, or change in control of the Company, the Holder
shall have the option to convert this Note into ownership of another entity or
other acceptable consideration, including but not limited to cash.
vi.
Rights Upon Issuance
of Purchase Rights. The Company, and Bohbot, individually, must obtain
prior written approval from the Holder before they sign any agreements, grant,
issue or sell any options, securities convertible into Membership Interests, or
rights to purchase Membership Interests, securities or any of the Company’s
properties or assets, except sales of plastic products to third parties in the
ordinary course of the Company’s business. However, if at any time the Company
grants, issues or sells any options, securities convertible into Membership
Interests, or rights to purchase Membership Interests, securities or other
property pro rata to the members of the Company (the “ Purchase Rights ”),
then the Holder will be entitled to acquire, upon the terms applicable to such
Purchase Rights, the aggregate Purchase Rights which the Holder could have
acquired if the Holder had held the number of Membership Interests acquirable
upon complete conversion of this Note immediately before the date on which a
record is taken for the grant, issuance or sale of such Purchase Rights, or, if
no such record is taken, the date as of which the record holders of Membership
Interests are to be determined for the grant, issue or sale of such Purchase
Rights.
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7. Adjustment Upon Issuance Of
Membership Interests. If the Company issues or sells, or in accordance
with this Section 7 is deemed to have issued or sold, any additional
Membership Interests at a price lower than the applicable Conversion Rate (a “
Dilutive
Issuance ”), then the Conversion Rate shall be adjusted accordingly, but
such adjustment shall only be made if such Conversion Rate is more favorable to
the Holder.
8.
Noncircumvention. The
Company and Bohbot each hereby covenants and agrees that the Company will not,
by amendment of its Articles of Organization, corporate charter or through any
reorganization, transfer of assets, consolidation, merger, scheme of
arrangement, dissolution, issue or sale of securities, or any other voluntary
action, avoid or seek to avoid the observance or performance of any of the terms
of this Note, and will at all times in good faith carry out all of the
provisions of this Note and take all action as may be required to protect the
rights of the Holder of this Note.
9. Representations and
Warranties and Covenants of the Company and Bohbot.
a.
Representations and
Warranties. As a material inducement of the Holder to purchase this
Note, the Company and Bohbot hereby represent and warrant to the Holder as
follows:
i.
Organization and
Standing. The Company is a limited liability company duly organized,
validly existing and in good standing under the laws of the State of New Jersey,
has full power to carry on its respective business as and where such business is
now being conducted and to own, lease and operate the properties and assets now
owned or operated by it and is duly qualified to do business and is in good
standing in each jurisdiction where the conduct of its business or the ownership
of its properties requires such qualification.
ii.
Authority. The
execution, delivery and performance of this Note by the Company and the
consummation of the transactions contemplated hereby have been duly authorized
by the Board of Directors or Managers of the Company.
iii.
No Conflict.
The execution, delivery and performance of this Note and the consummation of the
transactions contemplated hereby do not (A) violate or conflict with the
Company’s Articles of Organization or corporate charter, (B) conflict with or
result (with the lapse of time or giving of notice or both) in a material breach
or default under any material agreement or instrument to which the Company is a
party or by which the Company is otherwise bound, (C) violate any order,
judgment, law, statute, rule or regulation applicable to the Company, except
where such violation, conflict or breach would not have a material adverse
effect on the Company or (D) trigger any change of control clause in any
employment agreement, membership interest equivalent or other agreement. This
Note when executed by the Company and Bohbot will be a legal, valid and binding
obligation of the Company and Bohbot enforceable in accordance with its terms
(except as may be limited by bankruptcy, insolvency, reorganization, moratorium
and similar laws and equitable principles relating to or limiting creditors’
rights generally).
iv.
Litigation and Other
Proceedings. There are no actions, suits, proceedings or investigations
pending or, to the knowledge of the Company or Bohbot, threatened against the
Company at law or in equity before or by any court or Federal, state, municipal
or their governmental department, commission, board, bureau, agency or
instrumentality, domestic or foreign which could materially adversely affect the
Company. The Company is not subject to any continuing order, writ, injunction or
decree of any court or agency against it which would have a material adverse
effect on the Company.
v.
Financial
Statements. The Company shall promptly provide to the Holder its
financial statements for its last two fiscal years (collectively, the “ Company Financial
Statements ”). Since the most recent Company Financial Statement date,
there has been no circumstance, change in or effect on the Company that,
individually or in the aggregate with any other circumstance, changes in or
effects on the Company, is, or would reasonably be expected to be materially
adverse to the assets, business, operation, condition (financial or otherwise)
or results of operations of the Company.
vi.
Ownership and
Liens. Only Michael Bohbot owns all ownership interests in the Company
directly, and beneficially. The only lien or security interest on any the
Company’s assets is held by Coral Capital Solutions and by GP Sales
Corp.
vii.
Covenants and
Agreements of the Company and Bohbot. Until all principal and interest
and any other amounts due and payable under this Note have been paid or
converted in full, the Company and Bohbot (individually and in his capacity as
officer and manager of the Company) shall:
i. provide
prompt written notice to the Holder of: (i) the occurrence of any Event of
Default, or any event which with the giving of notice or lapse of time, or both,
would constitute an Event of Default, hereunder, and (ii) any issuance of
additional debt (subject to the limitations contained herein) which may be
senior to or pari passu with the indebtedness evidenced by this
Note;
ii. do
or cause to be done all things necessary to preserve, renew and keep in full
force and effect its legal existence and the rights, licenses, permits,
privileges and franchises material to the conduct of its business;
iii. maintain,
with financially sound and reputable insurance companies, customary insurance
for its insurable properties, all to such extent and against such risks,
including fire, casualty, fidelity, business interruption and other risks
insured against by extended coverage, as is customary with companies in the same
or similar businesses operating in the same or similar locations;
iv. use
the proceeds from the Note only for working capital for operations in its
ordinary course of business (“ Use of Proceeds
”);
v. give
the Holder at all times access to, and rights to review and copy, the Company’s
financial, contractual or any and all other records;
vi. provide
to Holder joint decision-making authority for all financial and operational
decisions made by the Company;
vii. obtain
Holder’s approval (by requirement of two signatures) for all financial (and
expense reimbursement) transactions related to bank accounts; and
viii. Fully
comply with the terms of the Business Services Agreement entered into by the
Holder, the Company and Bohbot of even date herewith herewith (the “Business
Services Agreement”), and the Security Agreement.
In
addition, in the event of any litigation or other proceedings against the
Company, its officers, members, and/or Holder, then the Company and Bohbot,
individually, jointly and severally shall assume full responsibility for such
litigation, and shall indemnify and hold harmless Holder from any liabilities
resulting therefrom.
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10.
Transferability. This
Note (and the shares of Membership Interests issuable upon conversion hereof)
may be transferred by the Holder to any person or entity provided that such
transfer complies with all applicable securities laws, including delivery to the
Company of an appropriate legal opinion or other evidence thereof. Such transfer
may be made without any restriction other than compliance with all applicable
securities laws.
11.
Events of
Default. The term “ Event of Default ” as
used herein means any one of the following events (whatever the reasons of such
Event of Default and whether it shall be voluntary or involuntary or be 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):
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a.
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Payments. Any
failure by the Company or Bohbot to pay in full the principal due under
the Note on the Maturity Date;
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b.
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Breach of
Representation and Warranty or Covenant under this Note. Any
breach of any of the Company’s or Bohbot’s representations and warranties
hereunder, or any failure by either of them to observe any covenant or
agreement on his/its part contained in this Note for, to the extent
curable, a period of more than ten (10) Business Days after notice thereof
in writing from the Holder (other than a failure to make payments
hereunder, which shall not be subject to any grace
period);
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c.
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Breach of
Representation and Warranty or Covenant under any other transaction
document. The material breach of any provision of, or the
failure of performance of any of the terms, conditions or covenants under
any other document executed and/or delivered in connection with this Note
or otherwise furnished to the Company or Bohbot in connection with the
debt evidenced by this Note, including the Security Agreement and the
Business Services Agreement;
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d.
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Default under Any
Other Outstanding Debt. Any occurrence of a default under
any other outstanding debt obligation of the
Company;
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e.
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Failure to Timely
Issue and Deliver Membership Certificates. Any failure by the
Company to issue and deliver within three (3) Business Days following the
date of receipt of a Conversion Notice, a certificate, registered in the
name of the Holder or its designee, for the number of Membership Interests to which the
Holder is entitled pursuant to the terms of this
Note;
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f.
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Insolvency. 1.
The failure by the Company or Bohbot generally to pay their debts as they
become due (other than unsecured trade accounts payable paid in the
ordinary course of business);
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ii. The
entry of a decree or order by a court having jurisdiction in the premises
adjudging the Company or Bohbot bankrupt or insolvent, or approving as properly
filed a petition seeking reorganization, arrangement, adjustment, or composition
of or in respect of the Company or Bohbot under applicable bankruptcy law, or
appointing a receiver, liquidator, assignee, trustee, sequestrator or similar
official of the Company or affecting a substantial part of the property of the
Company, or ordering the winding up or liquidation of the affairs of the
Company, and the continuance of any such decree or order unstayed and in effect
for a period of sixty (60) consecutive days; or
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iii. The
institution by the Company or Bohbot of proceedings to be adjudged as bankrupt
or insolvent, or the consent by the Company or Bohbot to the institution of
bankruptcy or insolvency proceedings against it, or the filing by the Company or
Bohbot of a petition or answer or consent seeking reorganization or relief under
applicable bankruptcy law, or the consent by the Company or Bohbot to the filing
of such petition or to the appointment of a receiver, liquidator, assignee,
trustee, sequestrator or similar official of the Company or affecting a
substantial part of the property of the Company or Bohbot, or the making by the
Company or Bohbot of an assignment for the benefit of creditors, or the
admission by the Company or Bohbot of inability to pay its debts generally as
they become due, or the taking of corporate action by the Company in furtherance
of such action.
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(g)
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Use of
Proceeds. If any funds provided to the Company pursuant to the Note
are not used substantially as set forth in Section 9(iv). In addition, in
the event of any cash withdrawals or personal usage by or at the direction
of Bohbot of the Company’s funds from any of the Company’s
bank accounts for the direct or indirect benefit of Bohbot,
individually, or any party other than the representatives of the
Holder, without the prior written consent of the Holder, shall constitute
an Event of Default, and all principal and accrued interest shall become
immediately due and payable.
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12.
Acceleration of
Note. If an Event of Default occurs, then and in every such case the
Holder may declare the Aggregate Note Amount to be due and payable immediately,
by a notice in writing to the Company, and upon any such declaration such
Aggregate Note Amount shall become immediately due and
payable. Notwithstanding the foregoing, if an Event of Default referenced
in paragraphs (f) (“Insolvency”) of Section 11 occurs,
the Aggregate Note Amount shall automatically become due and payable immediately
without any declaration or other action on the part of the Holder, all of which
are hereby expressly waived by the Company. At any time after the Aggregate Note
Amount shall become immediately due and payable as a result of an acceleration
thereof, and before a decree or judgment for payment of the money due has been
obtained, the Holder may, by written notice to the Company, rescind and annul
such acceleration and its consequences. Further, the Company and Bohbot, jointly
and severally, agree to pay all fees, costs and expenses, including reasonable
attorneys’ fees and legal expenses, incurred by the Holder in endeavoring to
collect any amounts payable hereunder which are not paid when due, whether by
acceleration or otherwise.
In
addition, in the Event of Default, Bohbot and the Company shall each provide
immediate written notice to Coral Capital Solutions, LLC (and any successor
factoring company or other financing organization then doing business with the
Company) to cease the transfer of such related funds to the Company, and shall
instead pay all such related funds and distributions directly to MMMC instead of
the Company, until this Note is paid in full.
13.
Definitions.
The following terms shall have the meanings set forth below:
“ Aggregate Note Amount
” means, at any time, the aggregate unpaid principal amount outstanding under
this Note at such time, together with all accrued but unpaid interest then
outstanding.
“ Business Day ” means
a day other than Saturday, Sunday, or any day on which the banks located in the
State of Georgia are authorized or obligated to close.
“ Issuance Date” means
April 23, 2010.
“ Maturity Date ” means
October 22, 2010, if this Note has not been earlier repaid or satisfied in
full.
“ Person ” means any
person or entity of any nature whatsoever, specifically including an individual,
a firm, a company, a corporation, a partnership, a limited liability company, a
trust or other entity.
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14.
Delay or Omission Not
A Waiver. No delay or omission of the Holder in exercising any right,
power or privilege hereunder shall impair such right, power or privilege or be a
waiver of any default or an acquiescence therein; and no single or partial
exercise of any such right or power shall preclude other or further exercise
thereof, or the exercise of any other right; and no waiver shall be valid unless
in writing signed by Holder, and then only to the extent specifically set forth
in such writing. All rights and remedies hereunder or by law afforded shall be
cumulative and shall be available to Holder until the principal amount of and
all interest on this Note have been paid in full.
15.
Binding Effect.
All terms and conditions of this Note and all covenants of the Company in this
Note shall be binding upon the Company, and Bohbot, individually, and its
successors and permitted assigns. This Note shall inure to the benefit of the
Holder and its successors and assigns, and any subsequent holder of this
Note.
16.
Delegation. The
Company, and Bohbot, individually, may not delegate any of its obligations
hereunder without the prior written consent of the Holder.
17.
Waiver of
Demand. The Company, and Bohbot, individually, waive demand, presentment
for payment, notice of dishonor, protest, notice of protest, and notice of
non-payment of this Note.
18. Notices. Any notice, demand, offer, request
or other communication required or permitted to be given pursuant to the terms
of this Note shall be in writing and shall be deemed effectively given the
earlier of (i) when received, (ii) when delivered personally,
(iii) on the Business Day on which notice is delivered by facsimile (with
receipt of appropriate confirmation), (iv) one Business Day after being
deposited with an overnight courier service, or (v) four days after being
deposited in the U.S. mail, First Class with postage prepaid, and addressed to
the recipient at the address set forth below unless another address is
provided to the other party in writing:
if to Company, to
:
Best
Plastics, LLC
237
Greenwood Ct.
McDonough,
GA 30252
Attn: Michael
Bohbot
Fax:
if to Holder, to
:
Modern
Medical Modalities Corporation
439
Chestnut Ave.
Union New
Jersey 07083
Attn:
Baruh (Barry) Hayut
Fax:
908-687-8842
8
19.
Amendments, Waivers or
Termination. Neither this Note nor any term hereof may be changed,
waived, discharged or terminated orally, but only by an instrument in writing
signed by the party against which enforcement of such change, waiver, discharge
or termination is sought.
20.
Defenses. The
obligations of the Company, and Bohbot, individually, under this Note shall not
be subject to reduction, limitation, impairment, termination, defense, set-off,
counterclaim or recoupment for any reason.
21.
Attorneys’ and
Collection Fees. Should the indebtedness evidenced by this Note or any
part hereof be collected at law or in equity or in bankruptcy, receivership or
other court proceedings, the Company and Bohbot, jointly and severally, agree to
pay, in addition to the principal and interest due and payable hereon, all costs
of collection, including reasonable attorneys’ fees and expenses, incurred by
the Holder or its agent in collecting or enforcing this Note.
22.
Governing Law.
The validity of this Note, the construction of its terms, and the rights of the
Company, and Bohbot, individually, and Holder shall be determined in accordance
with the laws of the State of Georgia, excluding any principles of conflicts of
laws that would refer the choice of law to another jurisdiction.
23.
Consent to
Jurisdiction and Venue. Each party hereto hereby irrevocably and
unconditionally submits to the jurisdiction and venue of state court sitting in
the State of Georgia and irrevocably agrees that all actions or proceedings
arising out of or relating to this Note shall be litigated exclusively in such
court. Each party hereto agrees not to commence any legal proceeding related
hereto or thereto except in such court. Each party hereto irrevocably waives any
objection which it may now or hereafter have to the laying of the venue of any
such proceeding in any such court and hereby further irrevocably and
unconditionally waives and agrees not to plead or claim in any such court that
any such action, suit or proceeding brought in any such court has been brought
in an inconvenient forum. Each party hereto consents to process being served in
any such action or proceeding by mailing a copy thereof by registered or
certified mail.
24.
Waiver of Jury
Trial. EACH PARTY HERETO HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED
BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY
LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF, UNDER OR IN CONNECTION WITH
THIS NOTE. EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR
ATTORNEY OF ANY OF THE OTHER PARTIES HAS REPRESENTED, EXPRESSLY OR OTHERWISE,
THAT ANY OF THE OTHER PARTIES WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO
ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES
HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT, BY, AMONG OTHER THINGS,
THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION
24.
IN
WITNESS WHEREOF, the Company has caused this Note to be signed by its duly
authorized officer, and individually by Bohbot, and this Note to be dated April
22, 2010.
|
COMPANY:
|
||||
|
BEST
PLASTICS, LLC
|
||||
|
By:
|
/s/
Michael Bohbot
|
/s/
Michael Bohbot
|
||
|
Name:
|
Michael
Bohbot
|
MICHAEL
BOHBOT, INDIVIDUALLY
|
||
|
Title:
|
CEO
|
|||
APPENDIX
A TO CONVERTIBLE PROMISSORY NOTE
|
AMOUNT
OF LOAN AMOUNT
|
DATE
OF SUCH LOAN AMOUNT
|
INITIALS
OF COMPANY, BOHBOT AND HOLDER
|
||
|
$700,000.00
|
April 22,
2010
|
|||
10
EXHIBIT
I
BEST
PLASTICS, LLC
CONVERSION
NOTICE
Reference
is made to the Convertible Note (the “ No te ”) issued to the
order of Modern Medical Modalities Corporation (“ Holder ”) by Best
Plastics, LLC (the “ Company ”) and
Michael Bohbot a/k/a Michel Buchbut. In accordance with and pursuant to the
Note, Holder hereby elects to convert the Conversion Amount (as defined in the
Note) of the Note indicated below into Membership Interests of the Company (the
“ Membership
Interests ”), as of the date specified below.
|
Date
of Conversion:
|
|
Aggregate
Conversion Amount to be converted:
|
|
Please
confirm the following information:
|
|
|
Conversion
Rate:
|
|
|
Number
of Membership Interests to be issued:
|
|
Please
issue the Membership Interests into which the Note is being converted in
the following name and to the following address:
|
|
|
Issue
to:
|
|
|
Facsimile
Number:
|
|
|
Authorization:
|
|
By:
|
|
Title:
|
|
Dated:
|
|
Account
Number:
|
||
|
(if
electronic book entry transfer)
|
||
|
Transaction
Code Number:
|
||
|
(if
electronic book entry transfer)
|
||
11