Exhibit
10.43
PROMISSORY
NOTE
March 30,
2007
FOR VALUE RECEIVED on or
about March 30, 2007, the undersigned, NS8 CORPORATION,
INC. , a Delaware corporation (the “ Company
”), promises to pay CORNELL CAPITAL PARTNERS,
L.P. (the “ Lender ”) at 101 Hudson
Street, Suite 3700, Jersey City, New Jersey 07302 or other address
as the Lender shall specify in writing, the principal sum of
Five Hundred Fifty Thousand U.S. Dollars and 00/100
($550,000) (the “ Principal Amount ”)
and interest at the annual rate of fourteen percent (14%) on the
unpaid balance pursuant to the following terms:
1.
Principal and
Interest . For value received on the date hereof the
Company hereby promises to pay to the order of the Lender in lawful
money of the United States of America and in immediately available
funds the Principal Amount, together with interest on the unpaid
principal of this Note on or before July 1, 2007.
2.
Right of
Prepayment . The
Company at its option shall have the right to prepay, with three
(3) business days advance written notice, a portion or all
outstanding principal plus accrued Interest under this
Note.
4.
Waiver and
Consent . To the
fullest extent permitted by law and except as otherwise provided
herein, the Company waives demand, presentment, protest, notice of
dishonor, suit against or joinder of any other person, and all
other requirements necessary to charge or hold the Company liable
with respect to this Note.
5.
Costs, Indemnities and
Expenses . In
the event of default as described herein, the Company agrees to pay
all reasonable fees and costs incurred by the Lender in collecting
or securing or attempting to collect or secure this Note, including
reasonable attorneys’ fees and expenses, whether or not
involving litigation, collecting upon any judgments and/or
appellate or bankruptcy proceedings. The Company agrees to pay any
documentary stamp taxes, intangible taxes or other taxes which may
now or hereafter apply to this Note or any payment made in respect
of this Note, and the Company agrees to indemnify and hold the
Lender harmless from and against any liability, costs,
attorneys’ fees, penalties, interest or expenses relating to
any such taxes, as and when the same may be incurred.
6.
Event of
Default . An
“ Event of Default ” shall be deemed to have
occurred upon the occurrence of any of the following: (i) the
Company should fail for any reason or for no reason to make any
payment of the interest or principal pursuant to this Note within
ten (10) days of the date due as prescribed herein; (ii) the
Company shall fail to observe or perform any other covenant,
agreement or warranty contained in, or otherwise commit any
material breach or default of any material provision of this Note
or any of the Transaction Documents (as defined in the Securities
Purchase Agreements between the Company and the Lender dated May
19, 2004, and November 14, 2004), which is not cured within ten
(10) days notice of the default; (iii) the Company or any
subsidiary of the Company shall commence, or there shall be
commenced against the Company or any subsidiary of the Company
under any applicable bankruptcy or insolvency laws as now or
hereafter in effect or any successor thereto, or the Company or any
subsidiary of the Company commences any other proceeding under any
reorganization, arrangement, adjustment of debt, relief of debtors,
dissolution, insolvency or liquidation or similar law of any
jurisdiction whether now or hereafter in effect relating to the
Company or any subsidiary of the Company or there is commenced
against the Company or any subsidiary of the Company any such
bankruptcy, insolvency or other proceeding which remains
undismissed for a period of sixty-one (61) days; or the Company or
any subsidiary of the Company is adjudicated insolvent or bankrupt;
or any order of relief or other order approving any such case or
proceeding is entered; or the Company or any subsidiary of the
Company suffers any appointment of any custodian, private or court
appointed receiver or the like for it or any substantial part of
its property which continues undischarged or unstayed for a period
of sixty one (61) days; or the Company or any subsidiary of the
Company makes a general assignment for the benefit of creditors; or
the Company or any subsidiary of the Company shall fail to pay, or
shall state that it is unable to pay, or shall be unable to pay,
its debts generally as they become due; or the Company or any
subsidiary of the Company shall call a meeting of its creditors
with a view to arranging a composition, adjustment or restructuring
of its debts; or the Company or any subsidiary of the Company shall
by any act or failure to act expressly indicate its consent to,
approval of or acquiescence in any of the foregoing; or any
corporate or other action is taken by the Company or any subsidiary
of the Company for the purpose of effecting any of the foregoing;
(iv) failure by the Company to (a) merge with a publicly traded
entity upon terms and conditions reasonably satisfactory to the
Holder (the “ Merger ”) within thirty (30) days
of the date hereof (b) to be the surviving public company following
the Merger, and (c) to assume any and all obligations of the
Company owed to the Holder under this Note contemporaneous with the
consummation of the Merger; or (v) a breach by the Company of its
obligations, or an event of default, under any agreements entered
into between the Company and the Lender which is not cured by any
applicable cure period set forth therein.
Upon an Event of Default (as defined above), the
entire principal balance and accrued interest outstanding under
this Note, and all other obligations of the Company under this
Note, shall be immediately due and payable without any action on
the part of the Lender, interest shall accrue on the unpaid
principal balance at twenty four percent (24%) or the highest rate
permitted by applicable law, if lower, and the Lender shall be
entitled to seek and institute any and all remedies available to
it.
7.
Maximum Interest
Rate . In no
event shall any agreed to or actual interest charged, reserved or
taken by the Lender as consideration for this Note exceed the
limits imposed by New Jersey law. In the event that the interest
provisions of this Note shall result at any time or for any reason
in an effective rate of interest that exceeds the maximum interest
rate permitted by applicable law, then without further agreement or
notice the obligation to be fulfilled shall be automatically
reduced to such limit and all sums received by the Lender in excess
of those lawfully collectible as interest shall be applied against
the principal of this Note immediately upon the Lender’s
receipt thereof, with the same force and effect as though the
Company had specifically designated such extra sums to be so
applied to principal and the Lender had agreed to accept such extra
payment(s) as a premium-fre
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