THIS NOTE HAS BEEN ACQUIRED FOR INVESTMENT
PURPOSES ONLY AND MAY NOT BE TRANSFERRED UNTIL (i) A
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933, AS AMENDED
(THE “ ACT ”) SHALL HAVE BECOME
EFFECTIVE WITH RESPECT THERETO OR (ii) RECEIPT BY THE COMPANY
OF AN OPINION OF COUNSEL REASONABLY SATISFACTORY TO THE COMPANY TO
THE EFFECT THAT REGISTRATION UNDER THE ACT IS NOT REQUIRED IN
CONNECTION WITH SUCH PROPOSED TRANSFER NOR IS IN VIOLATION OF ANY
APPLICABLE STATE SECURITIES LAWS. THIS LEGEND SHALL BE ENDORSED
UPON ANY NOTE ISSUED IN EXCHANGE FOR THIS NOTE.
WAKO LOGISTICS GROUP, INC.
6% Convertible Promissory Note
April
1, 2005
FOR VALUE
RECEIVED , Wako Logistics Group, Inc. , a
Delaware corporation (the “ Company
”) with its principal executive office at 3606-8, 36/F,
Citibank Tower, Citibank Plaza, 3 Garden Road Central, Hong Kong,
promises to pay to the order of Christopher Wood
(the “ Holder ” or “
Payee ”) or registered assigns the
principal amount of One Million Dollars
($1,000,000) (the “ Principal
Amount ”) on March 31, 2008 (the “
Maturity Date ”), subject to earlier
conversion as more specifically described herein. The Principal
Amount is payable in such coin or currency of the United States of
America as at the time of payment shall be legal tender for the
payment of public and private debts.
This convertible
promissory note (the “ Note ”)
is being issued to the Holder, pursuant to the terms and conditions
of a Subscription Agreement of even date herewith (the “
Subscription Agreement ”).
Notwithstanding any provision to the contrary contained herein or
elsewhere, this Note is subject and entitled to certain terms,
conditions, covenants and agreements contained in the Subscription
Agreement including, without limitation certain registration rights
with respect to the shares of common stock, par value $.001 per
share (the “ Common Stock ”),
issuable to the Holder upon the conversion of this Note, as
provided in Paragraph 3 hereafter. Any
transferee of this Note, by its acceptance hereof, assumes the
obligations of the Payee in the Subscription Agreement with respect
to the conditions and procedures for transfer of this Note.
Reference to the Subscription Agreement shall in no way impair the
absolute and unconditional obligation of the Company to pay both
the Principal Amount and interest thereon as provided herein.
Interest on this Note
shall accrue on the Principal Amount outstanding from time to time
at a rate per annum computed in accordance with
Paragraph 2 hereof and shall be
payable in accordance with Paragraph 2
hereof. All payments by the Company hereunder shall be applied
first to pay any interest which is due, but unpaid, then to reduce
the Principal Amount.
The Company
(i) waives presentment, demand, protest or notice of any kind
in connection with this Note and (ii) agrees, in the event of
an Event of Default (as defined below), to pay to the Payee, on
demand, all costs and expenses (including reasonable legal fees)
incurred in connection with the enforcement and collection of this
Note.
1.
Prepayment . This Note may be prepaid prior to the
Maturity Date, in whole or in part, without any premium or penalty.
All such payments shall be applied first to accrued interest and
then to the outstanding Principal Amount.
2.
Computation of Interest .
(a) Interest
Rate . Subject to Paragraph 2(b)
below, the outstanding Principal Amount shall bear interest at the
rate of six percent (6%) per annum compounded on a quarterly
basis.
(b) Maximum
Rate . In the event that it is determined that, under the
applicable laws relating to usury applicable to the Company or the
indebtedness evidenced by this Note (“ Applicable
Usury Laws ”), the interest charges and fees
payable by the Company in connection herewith or in connection with
any other document or instrument executed and delivered in
connection herewith (collectively, the “ Effective
Interest Rate ”) cause the Effective Interest
Rate applicable to the indebtedness evidenced by this Note to
exceed the maximum rate allowed by law (the “
Maximum Rate ”), then such interest
shall be recalculated for the period in question and any excess
over the Maximum Rate paid with respect to such period shall be
credited, without further agreement or notice, to the Principal
Amount outstanding hereunder to reduce said balance by such amount
with the same force and effect as though the Company had
specifically designated such extra sums to be so applied to
principal and the Payee had agreed to accept such extra payment(s)
as a premium-free prepayment. All such deemed prepayments shall be
applied to the principal balance payable at maturity.
(c)
Payment of Interest . All accrued but unpaid interest on the
Principal Amount shall be payable on the Maturity Date;
provided, however , that in the event that
the entire Principal Amount is converted into Common Stock,
pursuant to the provisions of Paragraph 3
hereafter, prior to the Maturity Date, then all interest accrued
through the date of the Final Conversion (as such term is defined
in Paragraph 3 ) shall be payable to the
Holder upon such Final Conversion. All interest payable under this
Note shall be payable to the Holder in cash, Common Stock, or in
both cash and Common Stock, as elected, in writing, by the Holder.
Interest payable in Common Stock shall be based on the same value
as determined for Conversion (as such term is defined in
Paragraph 3 ).
3.
Conversion. At any time prior to the Maturity
Date, the Holder may, at his sole election, convert all or a
portion of the Principal Amount into shares of Common Stock, by
sending written notice to the Company, in the form of Exhibit 1
annexed hereto (each a “ Conversion
” and the conversion which results in the conversion of the
entire outstanding Principal Amount being referred to as the
“ Final Conversion ”). Upon any
Conversion of this Note, the Principal Amount to be converted shall
be converted into Common Stock at a price per share of Common Stock
equal to the lesser of (i) the Fair Market Value of the Common
Stock (defined hereafter) and (ii) $.50 per share. For the purposes
of this Note, “ Fair Market Value
” shall mean, as of the date of the Company’s receipt
of any such election notice: (i) if shares of the Common Stock
are listed on a national securities exchange, the average of the
closing prices as reported for composite transactions during the
three (3) consecutive trading days preceding the trading day
immediately prior to such date or, if no sale occurred on a trading
day, then the mean between the closing bid and asked prices on such
exchange on such trading day; (ii) if shares of the Common
Stock are not so listed but are traded on the Nasdaq SmallCap
Market (“ NSCM ”), the average
of the closing prices as reported on the NSCM during the three (3)
consecutive trading days preceding the trading day immediately
prior to such date or, if no sale occurred on a trading day, then
the mean between the highest bid and lowest asked prices as of the
close of business on such trading day, as reported on the NSCM; or
if applicable, the Nasdaq National Market (“
NNM ”), or if not then included for
quotation on the NNM or NSCM, the average of the highest reported
bid and lowest reported asked prices as reported by the OTC
Bulletin Board or the National Quotations Bureau, as the case may
be; or (iii) if the shares of the Common Stock are not then
publicly traded, the fair market price of the Common Stock as
determined in good faith by at least a majority of the Board of
Directors of the Company.
4.
Covenants of Company . The Company covenants and
agrees that, so long as
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