Exhibit 10.29
Original Issue Date: January 26,
2009
$15,000
$15,000 Secured Note
THIS NOTE is a duly authorized and
validly issued Note (the “Note”) of Voyant
International Corporation, a Nevada corporation, having its
principal place of business at 444 Castro Street, Suite 318,
Mountain View, California 94041 (the “ Company
”).
FOR VALUE RECEIVED, the Company promises
to pay to the order of SRZ Trading LLC, or its registered assigns
(the “ Holder ”), or shall have paid pursuant to
the terms hereunder, the principal sum of Fifteen Thousand Dollars
($15,000) (the “ Principal Amount ”), no later
than the Maturity Date, and to pay interest to the Holder on the
aggregate outstanding Principal Amount of this Note in accordance
with the provisions hereof. This Note is one of four Secured
Notes issued to lenders on or about the date hereof in an aggregate
principal amount of $300,000 (together, the “ 2009
Notes ”).
Capitalized terms used herein without
definition have the meanings set forth on Exhibit A hereto.
This Note is subject to the following additional
provisions:
Section 1 .
Advance of Funds; Conditions to
Advance .
(a)
On the Original Issue Date, the Holder
shall advance the Principal Amount of this Note to the Company by
wire of immediately available funds (less any other amounts that
may be deducted therefrom pursuant to the terms of this Note).
The Company shall no obligations hereunder whatsoever prior
to the Holder making said advance.
(b)
Prior to the Holder having the obligation
of making the foregoing advance, the following shall have occurred
to the satisfaction of the Holder in its sole discretion: (i) this
Note shall have been duly executed and delivered by the Company to
the Holder; (ii) one or more Guaranties (each being a “
Guaranty ”) of each of the Active Subsidiaries (as
defined below) shall have been duly executed and delivered to the
Holder; (iii) one or more security agreements (each being a “
Security Agreement ”) from the Company and each of the
Active Subsidiaries to the Holder with respect to all of their
respective assets, shall have been duly executed and delivered by
the Company and the Active Subsidiaries to the Holder; (iv) an
opinion of counsel to the Company, in form and substance
satisfactory to the Holder, shall have been delivered to the
Holder; (v) an Intercreditor Agreement, among the Company, the
Holder and WAA, LLC shall have been executed
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and delivered to the Holder (the “
Intercreditor Agreement ”); (vi) the Company shall
have paid to the Holder a fee in the amount of $2,000 (plus payment
of all UCC search and filing fees) as reimbursement for legal
expenses incurred by the Holder in connection with the preparation
of the 2009 Notes and the other Transaction Documents; (vii) there
shall have been delivered to the Holder true and complete copies of
resolutions of the Boards of Directors of the Company and the
Active Subsidiaries authorizing the transactions contemplated
hereby; (viii) the Company shall have delivered to the Holder
evidence of the receipt of all necessary consents and approvals,
including consents of The Brown Family Trust and its affiliates, to
the transactions evidenced by the 2009 Notes and the other
Transaction Documents; (ix) a Warrant to Purchase Shares of Common
Stock (the “Warrant”), in form and substance
satisfactory to the Holder, exercisable for 275,000 shares of
Common Stock of the Company shall have been issued to the Holder;
and (x) a certificate of a duly authorized officer of the Company
certifying as to the validity of the representatives and warranties
made herein and certain related matters shall have been delivered
to the Holder.
(c)
The delivery of the foregoing documents
and the advance of funds by the Holder to the Company shall occur
on the Original Issue Date in accordance with, and subject to, the
terms and conditions hereof, at the offices of White Star LLC, 152
West 57 th Street, 54 th Floor, New York, New
York, 10019.
Section 2 .
Payment of Principal and Interest;
Security; Subsequent Financing .
a)
Payment of Principal
. The Principal Amount hereof shall
be paid in full on the Maturity Date or, if earlier, upon
acceleration of this Note in accordance with the terms hereof. Any
amount of principal repaid hereunder may not be
reborrowed.
b)
Payment of Interest
. Interest on the aggregate outstanding
Principal Amount of this Note shall accrue at the rate of 18.00%
per annum, payable on the Maturity Date. Upon and after
an Event of Default and written notice from the Holder to the
Company, this Note shall bear interest at the lesser of 24.99% per
annum or the Maximum Rate (as defined below).
c)
Interest Calculations
. Interest shall be calculated on the
basis of a 360-day year and shall accrue daily commencing on the
Original Issue Date until payment in full of the Principal Amount,
together with all accrued and unpaid interest and other amounts
which may become due hereunder, has been made.
d)
Prepayment . The Company may prepay all or any portion of
the Principal Amount of this Note, without penalty or premium, upon
at least two days’ notice to the Holder. Upon
prepayment of this Note in full, all accrued and unpaid interest
hereunder shall be immediately due and payable.
Notwithstanding the above, all prepayments on any of the 2009
Notes shall be made on a pro-rata basis among the holders of the
2009 Notes, based on the then outstanding principal amounts of the
2009 Notes.
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e)
Payments . Notwithstanding anything to the contrary
contained herein or in any other document delivered by the Company
or the Active Subsidiaries pursuant hereto (together with this
Note, the other 2009 Notes and including the documents described in
Section 1(b) hereof, the “ Transaction Documents
”), all payments made by the Company shall be applied to
principal, interest, fees and other charges due the Holder
hereunder in such order of priority as the Holder shall elect.
f)
Security . The obligations of the Company under this
Note are secured by the Guaranty and the collateral identified in
the Security Agreement.
g)
Subsequent Financing
. So long as this Note is
outstanding, if the Company enters into any subsequent financing on
terms more favorable (to the investor) than the terms governing the
Note, then the Holder, in its sole discretion, may exchange this
Note, valued at the Principal Amount (less any previously amounts
repaid), together with accrued but unpaid interest (which interest
payments shall be payable, at the sole option of the Holder, in
cash or in the form of the new securities to be issued in such
subsequent financing), for the securities issued or to be issued in
the subsequent financing. The Company covenants and agrees to
promptly notify in writing the Holder of the terms and conditions
of any such proposed subsequent financing. Within 5
days of the receipt of such notice, the Holder must provide written
notice to the Company of its intent to exercise the exchange right
set forth herein, or be deemed to have irrevocably waived such
right.
h)
Use of Proceeds
. The proceeds of this Note shall
be used by the Company for working capital and general corporate
purposes, and not to redeem any Common Stock or securities
convertible, exercisable or exchangeable into Common Stock or to
settle any outstanding litigation.
Section 3.
Representations and
Warranties . The Company
hereby represents and warrants to the Holder as follows:
a)
Each of the
Company and each of the Active Subsidiaries has been duly organized
and is validly existing under the laws of its jurisdiction of
organization, is qualified to do business or registered as a
foreign corporation in every jurisdiction where such qualification
or registration is required except for such failures to so qualify
or register that, individually or in the aggregate, have not had
and would not reasonably be expected to have a Material Adverse
Effect (as defined below) and has all requisite power and authority
to execute, deliver and perform its obligations under this Note and
all other Transaction Documents to which it is a party. The
Company does not directly or indirectly own or have any investment
in the capital stock of or any proprietary interest in any Person
other than the Persons listed on Exhibit 21 to the Company’s
Form 10-KSB for the fiscal year ended December 31, 2007 (the
“ Subsidiaries ”). Each of the Subsidiaries
except for Zeros & Ones Technologies, Inc. (such other
Subsidiaries, the “Active Subsidiaries”) is
wholly-owned by the Company or another Subsidiary. Each of this
Note and all other Transaction Documents have been duly authorized,
executed and delivered by the Company and each of the Active
Subsidiaries that is a party thereto, and constitutes its legal,
valid and binding obligation, enforceable against it in
accordance
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with the terms
hereof and thereof. The execution, delivery and performance
by the Company and each of the Active Subsidiaries of this Note and
all other Transaction Documents to which each is a party, and the
incurrence by them of their respective obligations hereunder and
thereunder, do not contravene or conflict with any law applicable
to the Company or any of the Active Subsidiaries or other
instrument binding on or otherwise affecting the Company or any of
the Active Subsidiaries or give rise to any lien, security interest
or other charge or encumbrance (other than in favor of the Holder
and the holders of the other 2009 Notes) upon any of the
Company’s or the Subsidiary’s properties. No consent or
approval of or notice to or filing with any governmental authority
or other third party is or will be required as a condition to the
validity or enforceability of this Note or the other Transaction
Documents, other than such consents which have been obtained and
are in full force and effect.
b)
The
Company and the Subsidiaries have good and marketable title to
their assets disclosed in its most recent SEC Reports (as defined
below). The Company and each of the Subsidiaries are in compliance
in all material respects with all laws and regulatory requirements
to which it or its properties are subject. Except as set forth in
the SEC Reports, there is no litigation pending, or, to the
knowledge of the Company, threatened against the Company or any of
the Subsidiaries that could reasonably be expected to have a
material adverse effect on the financial condition, business,
properties or prospects of the Company and its subsidiaries, taken
as a whole (a “ Material Adverse Effect ”).
The Company’s principal place of business is the
address set forth at the beginning of this Note. The Company
has paid all federal, foreign, state and local taxes required to be
paid by it on or prior to the date they were due
except
for such failures to pay that, individually or in the aggregate,
have not had and would not reasonably be expected to have a
Material Adverse Effect. All documents, instruments and other
written material heretofore or hereafter furnished to the Holder
pursuant to the terms of any Transaction Document contain no
misstatements of a material fact and do not fail to disclose any
material fact and the Company has not failed to disclose to the
Holders any information that could result in a Material Adverse
Effect.
c)
The Company has filed all reports,
schedules, forms, statements and other documents required to be
filed by it under the Securities Act of 1933, as amended (the
“ Securities Act ”), and the Securities Exchange
Act of 1934, as amended (the “ Exchange Act ”),
including pursuant to Section 13(a) or 15(d) thereof, for the two
years preceding the date hereof (or such shorter period as the
Company was required by law or regulation to file such material)
(the foregoing materials, including the exhibits thereto and
documents incorporated by reference therein, being collectively
referred to herein as the “ SEC Reports ”) on a
timely basis or has received a valid extension of such time of
filing and has filed any such SEC Reports prior to the expiration
of any such extension. As of their respective dates, the SEC
Reports complied in all material respects with the requirements of
the Securities Act and the Exchange Act and the rules and
regulations of the Commission promulgated thereunder, as
applicable, and none of the SEC Reports, when filed, contained any
untrue statement of a material fact or omitted to state a material
fact required to be stated therein or necessary in order to make
the statements therein, in the light of the circumstances under
which they were made, not misleading. The financial
statements of the Company included in the SEC Reports comply in all
material respects with applicable accounting requirements and the
rules and regulations of the
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Commission with respect thereto as in
effect at the time of filing. Such financial statements have
been prepared in accordance with United States generally accepted
accounting principles applied on a consistent basis during the
periods involved (“ GAAP ”), except as may be
otherwise specified in such financial statements or the notes
thereto and except that unaudited financial statements may not
contain all footnotes required by GAAP, and fairly present in all
material respects the financial position of the Company and its
consolidated subsidiaries as of and for the dates thereof and the
results of operations and cash flows for the periods then ended,
subject, in the case of unaudited statements, to normal,
immaterial, year-end audit adjustments.
d)
Since the date of the latest audited
financial statements included within the SEC Reports, (i) there has
been no event, occurrence or development that has had or that could
reasonably be expected to result in a Material Adverse Effect, (ii)
the Company has not incurred any liabilities (contingent or
otherwise) other than (A) trade payables and accrued expenses
incurred in the ordinary course of business consistent with past
practice and (B) liabilities not required to be reflected in the
Company’s financial statements pursuant to GAAP or disclosed
in filings made with the Commission, (iii) the Company has not
altered its method of accounting, (iv) the Company has not declared
or made any dividend or distribution of cash or other property to
its stockholders or purchased, redeemed or made any agreements to
purchase or redeem any shares of its capital stock and (v) the
Company has not issued any equity securities to any officer,
director or affiliate, except pursuant to existing Company stock
option plans.
e)
The Company is in material compliance
with all provisions of the Sarbanes-Oxley Act of 2002 which are
applicable to it as of the Closing Date. The
Company
and its subsidiaries maintain a system of internal accounting
controls sufficient to provide reasonable assurance that (i) transactions are executed in
accordance with management’s general or specific
authorizations, (ii) transactions are recorded as necessary to
permit preparation of financial statements in conformity
with GAAP and to maintain asset
accountability, (iii) access to assets is permitted only in
accordance with
management’s general or specific authorization, and (iv) the
recorded accountability for assets is compared with the
existing assets at
reasonable intervals and appropriate action is taken with respect
to any differences. The Company has established disclosure controls
and procedures (as defined in Exchange Act Rules 13a-15(e) and
15d-15(e)) for the Company and designed such disclosure controls
and procedures to ensure that information required to be disclosed
by the Company in the reports it files or submits under the
Exchange Act is recorded, processed, summarized and reported within
the time periods specified in
the Commission’s
rules and forms. The Company’s certifying
officers have evaluated the effectiveness of the Company’s
disclosure controls and procedures as of the end of the period
covered by the Company’s most recently filed SEC Report (such
date, the “ Evaluation Date ”). The
Company presented in its most recently filed SEC Report the
conclusions of the certifying officers about the effectiveness of
the disclosure controls and procedures based on their evaluations
as of the Evaluation Date. Since the Evaluation Date, there
have been no changes in the Company’s internal control over
financial reporting (as such term is defined in the Exchange Act)
that has materially affected, or is reasonably likely to materially
affect, the Company’s internal control over financial
reporting.
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f)
The Company is not, and is not an
affiliate of, and immediately after the transactions contemplated
hereby, will not be or be an affiliate of, an “investment
company” within the meaning of the Investment Company Act of
1940, as amended.
g)
Zeros and Ones Technologies, Inc. holds
no material assets, has no material liabilities and conducts no
operations as of the date hereof.
h)
The Company has not received notice of a
default and is not in default under, or with respect to, any
contractual obligation, nor does any condition exist that with
notice or lapse of time or both would constitute a default
thereunder.
i)
There are no brokerage commissions,
finder’s fees or similar fees or commissions payable by the
Company in connection with the transactions contemplated hereby
based on any agreement or understanding with the Company or any
action taken by any such Person.
j)
The Company has not received any notice
to the effect that it is willfully violating Chapter 21 of the
California Corporations Code or any notice to the effect that it
will be subject to fines resulting from its failure to qualify as a
foreign corporation under the California Corporations Code.
The Company has paid all franchise or registration fees owing
(or any fees that would have been owed had the Company complied
with its obligation to register as a foreign corporation) to the
State of Californ
