Exhibit 10.2
SECURED PROMISSORY
NOTE
$621,775.01 September
30, 2009 (the “ Issuance Date
”)
FOR VALUE RECEIVED, the undersigned, Bond
Laboratories, Inc., a Nevada corporation (“
Parent ”) and NDS Nutrition Products, Inc., a
Florida corporation (hereinafter called the “
Company ”), promise, jointly and severally, to pay
to the order of NDS Nutritional Products, Inc., a Nebraska
corporation (hereinafter referred to as the “
Holder ”), the principal sum hereunder of Six
Hundred Twenty-One Thousand Seven Hundred Seventy-Five Dollars and
One Cent ($621,775.01). This Note is being made by
Parent and the Company pursuant to that certain Settlement
Agreement, dated as of even date herewith (the “
Settlement Agreement ”), by and among the
Company, Parent, the Holder, Cory Wiedel (“
Wiedel ”) and Ryan Zink (“
Zink ”). Parent and the Company are
each referred to herein as a “ Co-Maker ”
and collectively as the “ Co-Makers
”.
1.
Basic Note Terms .
(a) The
Co-Makers and Holder acknowledge and agree that this Secured
Promissory Note (this “ Note ”)
supersedes and replaces in its entirety each of the following
secured promissory notes originally executed by Parent in favor of
Holder pursuant to the terms of that certain Asset Purchase
Agreement, dated as of October 1, 2008, by and among Parent,
Holder, Wiedel and Zink, as amended by that Amendment No. 1 to
Asset Purchase Agreement, dated as of March 2, 2009, and that
Amendment No. 2 to Asset Purchase Agreement, dated as of the date
hereof (such Asset Purchase Agreement, as amended, the “
Purchase Agreement ”): (i) that certain Secured
Promissory Note (Component Inventory), dated as of October 1, 2008
(the “ Component Inventory Note ”); (ii)
that certain Secured Promissory Note (Fixed Assets), dated as of
October 1, 2008 (the “ Fixed Assets Note
”); and (iii) that certain Secured Promissory Note
(Installment), dated as of October 1, 2008 (the “
Installment Note ” and together with the
Component Inventory Note and the Fixed Assets Note, the “
Prior Notes ”).
(b) The
outstanding principal amount of this Note shall bear simple
interest at the rate of eight percent (8%) simple interest per
annum from the Issuance Date; provided , however ,
that any principal amount not paid when due and, to the extent
permitted by applicable law, any interest not paid when due, in
each case whether at stated maturity or otherwise, shall bear
interest at a rate that is 18% simple interest per annum until
paid. Subject to the Co-Makers’ pre-payment right,
the Co-Makers shall commence payments under this Note on March 1,
2010, with each subsequent payment to be made on the same day of
each successive month thereafter until this Note is paid in
full. Each monthly payment under this Note shall be in
the aggregate amount of $25,000; provided , however ,
that (i) the Co-Makers shall make a payment of $50,000 on each of
April 1, 2010 and May 1, 2010; (ii) the then-outstanding principal
balance of this Note will be automatically reduced by either (A)
$25,000 if the Co-Makers make one or more pre-payments (i.e.,
payments in addition to the regularly scheduled monthly payment) in
the aggregate amount of $250,000 after December 31, 2009 but on or
before June 30, 2010, or (B) $50,000 if the Co-Makers make one or
more pre-payments (i.e., payments in addition to the regularly
scheduled monthly payment) in the aggregate amount of $225,000 on
or before December 31, 2009, in either case which reduction of the
principal amount shall be deemed automatically effective as of the
date of receipt of the applicable aggregate amount; and (iii) the
entire then-outstanding principal balance of this Note and accrued
and unpaid interest thereon (the “ Outstanding
Balance ”) will be due and payable on December 31,
2010 (the “ Maturity Date ”) unless the
Holder consents in writing to extension of the repayment period
hereunder. Both principal and interest due hereunder
shall be payable in lawful money of the United States to such
address that the Holder shall designate. Payments on
this Note shall be applied first to accrued, unpaid interest and
thereafter to reduce the outstanding principal
amount. The Co-Makers shall have the right at any time
to prepay the indebtedness evidenced by this Note in whole or in
part without penalty or premium.
2.
Representations and Warranties of the Co-Makers.
The Co-Makers represent and warrant to the Holder,
jointly and severally, as follows:
(a)
Organization and Authority of Company . The
Company is a corporation duly incorporated, validly existing and in
good standing under the laws of the State of Florida and has all
requisite corporate power and authority to enter into and deliver
this Note and to perform its obligations hereunder and to
consummate the transactions set forth herein. All
necessary corporate proceedings of the Company have been duly taken
to authorize the execution, delivery, and performance of this Note
by the Company. This Note is the legal, valid, and
binding obligation of the Company, and is enforceable as to the
Company in accordance with its terms except (i) as limited by
applicable bankruptcy, insolvency, reorganization, moratorium and
other laws of general application affecting enforcement of
creditors’ rights generally and (ii) as limited by laws
relating to the availability of specific performance, injunctive
relief or other equitable remedies.
(b)
Organization and Authority of Parent . Parent is
a corporation duly incorporated, validly existing and in good
standing under the laws of the State of Nevada and has all
requisite corporate power and authority to enter into and deliver
this Note and to perform its obligations hereunder and to
consummate the transactions set forth herein. All
necessary corporate proceedings of Parent have been duly taken to
authorize the execution, delivery, and performance of this Note by
Parent. This Note is the legal, valid, and binding
obligation of Parent, and is enforceable as to Parent in accordance
with its terms except (i) as limited by applicable bankruptcy,
insolvency, reorganization, moratorium and other laws of general
application affecting enforcement of creditors’ rights
generally and (ii) as limited by laws relating to the availability
of specific performance, injunctive relief or other equitable
remedies.
(c)
No Default . Neither the Company nor Parent
shall, as a result of entering into and delivering the Note, be in
default under material contract, agreement or understanding
(including any instrument constituting any indebtedness or under
any guarantee of any indebtedness).
3.
Waivers
(a)
Co-Makers’ Waivers . The Co-Makers and all
other makers, sureties, guarantors and endorsers hereof hereby
waive presentment, protest, demand, notice or dishonor, and all
other notices, and all defenses and pleas on the grounds of any
extension or extensions of the time of payments or the due dates of
this Note, in whole or in part, before or after maturity, with or
without notice. No renewal or extension of this Note, no
release or surrender of any collateral given as security for this
Note, and no delay in enforcement of this Note or in exercising any
right or power hereunder, shall affect the liability of the
Co-Makers.
(b)
No Waiver by Note Holder . No single or partial
exercise by the Holder of any right hereunder, shall preclude any
other or further exercise thereof or the exercise of any other
rights. No delay or omission on the part of the Holder
in exercising any right hereunder shall operate as a waiver of such
right or of any other right under this Note.
4.
Default
(a)
Events of Default . The occurrence and
continuance of any one or more of the following events (whether or
not in the control of either Co-Maker) shall constitute an “
Event of Default ”:
(i)
Nonpayment . The Co-Makers shall fail to make, on
or before the due date, in the manner required, any payment of
principal, interest or any other sums due under this Note and such
failure continues unremedied for a period of five (5) business
days;
(ii)
Bankruptcy . The institution by or against either
Co-Maker under any state insolvency laws, federal bankruptcy law,
or similar debtor relief laws then in effect.
(iii)
Other Defaults; Cure Period . The Co-Makers shall
fail to: (A) observe or perform any of their material covenants
contained in this Note (other th
