Promissory Note - Executive TeleCard Ltd. and Network Data Systems Ltd.
PROMISSORY NOTE
$500,000 June 27, 1996
EXECUTIVE TELECARD, LTD., a Delaware corporation (hereinafter
called "Maker"), for value received, promises to pay to the order of
Network Data Systems, Limited, a Canadian corporation (hereinafter called
"Payee"), in lawful money of the United States of America, the principal
amount of five hundred thousand dollars ($500,000).
Principal and interest shall be payable as follows:
All accrued interest shall be payable in monthly installments,
the first payment commencing on July 27, 1996 and continuing on the 27th
day of each month thereafter through December 27, 1997, at which time the
unpaid principal amount and all accrued but unpaid interest shall be due
and payable in full.
The unpaid principal amount outstanding under this Note shall
bear interest from the date hereof until paid in full at a rate of twelve
percent (12%) per annum.
MAKER SHALL make all payments due hereunder to the following
address:
Network Data Systems, Limited
44 The Fairway II
P.O. Box 4081, Cranberry Village
Collingwood, Ontario
CANADA L9Y 4T9
MAKER SHALL be entitled to prepay the principal or interest of
this Note from time to time and at any time, in whole or in part, without
premium or penalty.
ALL PAST due principal and interest shall bear interest until
paid at the highest rate allowed by applicable law.
If ANY payment on this Note becomes due and payable on a
Saturday or Sunday, the maturity thereof shall be extended to the next
succeeding business day and interest thereon shall be payable at the then
applicable rate during such extension. Interest shall be calculated on
the basis of the actual number of days (including the first day but
excluding the last) elapsed over a year of 360 days.
MAKER WARRANTS and represents to Payee that Maker is a
corporation existing and in good standing under the laws of the State of
Delaware, that the borrowing evidenced hereby, the execution and delivery
of this Note and the performance by Maker its obligations under this Note
or under any security or other agreement relating to the payment of this
Note are within Maker's corporate powers, have been authorized by all
necessary corporate action, have received all necessary governmental
approval, if any is required, and do not and will not contravene or
conflict with any provision of law or of the charter or by-laws of Maker
or of any agreement to which Maker is a party or is bound thereby.
IF DEFAULT, is made in the payment of any installment of
interest or principal, as and when the same is or becomes due and such
default continues for five business days following delivery to Maker of
written notice of default by Payee, the owner and holder of this Note may,
without notice or demand, declare all sums owing hereon at once due and
payable. If default is made in the payment of this Note at maturity
(regardless of how maturity may be brought about), and the same is placed
in the hands of an attorney for collection, or suit is filed hereon, or
proceedings are had in bankruptcy, receivership or other judicial
proceedings for the establishment or collection of any amount called for
hereunder, or any amount payable or to be payable hereunder is collected
through any such proceedings, Maker agrees to pay the owner and holder of
this note all reasonable attorney's and collection fees incurred and
actually expended by such owner and holder for such purposes.
MAKER, expressly waives demand and presentment for payment,
notice of nonpayment, protest, notice of protest, notice of dishonor,
bringing of suit and diligence in taking any action to collect amounts
called for hereunder.
NO DELAY on the part of the holder of this Note in the exercise
of any power or right under this Note, or under any other instrument
executed pursuant hereto, shall operate as a waiver thereof, nor shall a
single or partial exercise of any power or right preclude other or further
exercise thereof or the exercise of any other power or right.
IT IS the intention of Maker and Payee to conform strictly to
applicable usury laws. Accordingly, if the transactions contemplated
hereby would be usurious under applicable law (including without
limitation, the laws of the State of New York the laws of the United
States and the laws of Canada), then in that event, notwithstanding
anything to the contrary in any agreement entered into in connection with
or as security for this Note, it is agreed as follows: (i) the aggregate
of all consideration which constitutes interest under applicable law that
is taken, reserved, contracted for, charged or received under this Note or
under any of the other aforesaid agreements or otherwise in connection
with this Note shall under no circumstances exceed the maximum amount of
interest allowed by applicable law, (or, if this Note shall have been paid
in full, refunded to the Maker); and (ii) in the event that maturity of
this Note is accelerated by reason of an election by the holder hereof
resulting from any default hereunder or otherwise, or in the event of any
required or permitted prepayment, then such consideration that constitutes
interest may never include more than the maximum amount allowed by
applicable law, and excess interest, if any, provided for in this Note or
otherwise shall be canceled automatically as of the date of such
acceleration or prepayment and, if theretofore prepaid, shall be credited
on this Note (or if this Note shall have been paid in full, refunded to
the Maker).
THIS NOTE shall be construed in accordance with and governed by
the laws of the State of New York.
MAKER
EXECUTIVE TELECARD, LTD.
/s/ Harold Reisner
By: Harold Reisner
Its: Senior Vice President
<PAGE>
STOCK OPTION AGREEMENT
THIS AGREEMENT is made June 27, 1996, by and between Executive
Telecard, Ltd., a Delaware corporation (the "Corporation") and Network
Data Systems, Limited ("NDS").
1. Grant of Option. The Corporation hereby grants to NDS the
right, privilege and option to purchase 50,000 shares of its restricted
common stock at the purchase price of $12.125 per share, in the manner and
subject to the conditions hereinafter provided.
2. Time of Exercise of Option. The aforesaid option may be
exercised at any time and from time to time, in whole or in part, until
the termination thereof as provided in paragraph 4 below.
3. Method of Exercise. At least five (5) business days prior
to the date upon which all or any portion of the option is to be
exercised, NDS shall deliver to TeleCard written notice of its election to
exercise the option, which notice shall specify the date and time for the
transfer of shares, pursuant to the exercise of the option and the number
of shares in respect of which the option is to be exercised. NDS shall,
at the date and time specified in such notice, deliver to TeleCard a check
in the amount of the option price for the shares in respect of which the
option is being exercised as well as an investment letter in the form
attached hereto as Exhibit A. Such delivery shall be made to TeleCard at
it's principal office in Nanuet, New York, and such check shall be drawn
to the order of Executive Telecard, Ltd. Contemporaneously with receipt of
such payment and the investment letter, TeleCard shall deliver to NDS,
duly endorsed and in proper form for transfer, certificates representing
the restricted common shares of TeleCard in respect of which the option is
being exercised.
4. Termination of Option. This option, to the extent not
heretofore exercised, shall terminate on the third anniversary of the date
of this Agreement.
5. Reclassification, Consolidation or Merger. If and to the
extent that the number of issued shares of the common stock of the
Corporation shall be increased or reduced by change in par value, split
ip, reclassification, distribution of a dividend payable in stock, or the
like, the number of share subject to option and the option price per share
shall be proportionately adjusted. If the Corporation is reorganized or
consolidated or merged with another corporation, NDS shall be entitled to
receive options covering shares of such reorganized, consolidated or
merged company in the same proportion, at an equivalent price, and subject
to the same conditions. For the purposes of the preceding sentence, the
excess of the aggregate fair market value of the shares subject to the
option immediately after the reorganization, consolidation or merger over
the aggregate option price of such shares shall not be more than the
excess of the aggregate fair market value of all shares subject to the
option immediately before such reorganization, consolidation or merger
over the aggregate option price of such shares, and the new option or
assumption of the old option shall not give NDS additional benefits which
he did not have under the old option, or deprive it of benefits which he
had under the old option.
6. Rights Prior to Exercise of Option. This option is non-
transferable by NDS, and shall be exercisable only by it. NDS shall have
no rights as a stockholder with respect to the option shares until payment
of the option price and delivery to it of such shares as herein provided.
7. Notices. All Notices and other communication hereunder
shall be in writing and shall be deemed to have been duly given if
delivered or mailed first class, postage prepaid:
a) If to the Corporation: 8 Avenue C, Nanuet, New York
10954; and
b) If to NDS: 44 The Fairway II, P.O. Box 4081,
Cranberry Village, Collingwood, Ontario Canada L9Y 4T9
8. Governing Law. This Agreement shall be deemed to be made
under and shall be construed in accordance with the laws of the State of
New York.
9. Binding Effect. This Agreement shall inure to the benefit
of and be binding upon the parties hereto and their respective heirs,
executors, administrators, successors and assigns.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed on the day and year first above written.
NETWORK DATA SYSTEMS, LIMITED EXECUTIVE TELECARD, LTD.
/s/Harold Reisner
By: By: Harold Reisner
Its: Its: Senior Vice President
<PAGE>
EXHIBIT A
Board of Directors
Executive Telecard, Ltd.
8 Avenue C
Nanuet, New York 10954
In connection with the investment being made by the undersigned
as set forth in the Stock Option Agreement of which this is a part, the
undersigned hereby warrants and represents that the securities being
purchased pursuant to the Agreement are being acquired for my own account
and for investment, and not with a view to, or in connection with, any
distribution or sale thereof, that there are no agreements with any other
person or entity concerning such securities, and that the undersigned's
financial condition is such that it will not be necessary for it to
dispose of such securities in the foreseeable future. Furthermore, the
undersigned agrees to indemnify and hold Executive Telecard, Ltd. harmless
from and against any claim, liability, cost or expense, including
reasonable attorney's fees, arising from any alleged unlawful sale or
offer to sell or transfer of any of the foregoing securities by the
undersigned.
The undersigned also represents that it is aware that the
securities being acquired have not registered under either Federal law and
rules or the applicable laws of any state or other jurisdiction and that
sale or resale of the securities will not be permitted under federal or
state law unless such securities are first registered, or the sale is a
transaction that is exempt from registration under both federal and state
laws. Furthermore, the undersigned agrees to refrain from any sale of the
securities except pursuant to registration or exemption from registration.
The undersigned agrees that if, contrary to it's foregoing
intentions, it should later desire to dispose of or transfer any of the
foregoing securities in any manner, it will not do so without first
obtaining a) an option of independent counsel satisfactory to Executive
Telecard, Ltd., to the effect that the proposed disposition or transfer
may lawfully be made without registration of the securities pursuant to
the Securities Act of 1933 as then in effect, including but not limited to
Rule 144 promulgated thereunder and applicable state securities laws, or,
b) such registration (it being expressly understood that Executive
Telecard, Ltd. will have no obligation to register the securities for this
purpose).
In this connection, the undersigned consents to the placement of
the following restrictive legend on the securities delivered to it:
"The securities represented by this Certificate have
not been registered under the Securities Act of 1933,
as amended, or the securities laws of any state. The
securities have been acquired for investment and may
not be sold, offered for sale or transferred in the
absence of an effective registration under the
Securities Act of 1933, as amended, and any applicable
state securities laws or an opinion of counsel
satisfactory in form and substance to counsel for the
Corporation that the transaction will not result in a
violation of federal and state securities laws."
The undersigned also represents that it has been fully apprised
of, and is totally aware of the nature of, the investment being made and
the financial risks of the investment.
The undersigned has been given access to full and complete
information regarding the Corporation and has utilized that access to the
undersigned's satisfaction for the purpose of obtaining information
concerning the Corporation, an investment in the securities and the terms
and conditions relating to purchase of the securities and has either
attended or has been given reasonable opportunity to attend a meeting with
representatives of the Corporation for the purpose of asking questions of,
and receiving answers from, these representatives concerning the
Corporation, an investment in the securities and the terms and conditions
of the purchase of the securities, and for the purpose of obtaining any
additional information to the extent reasonably available that is
necessary to verify the information provided.
The undersigned further represents that it is in a financial
position to hold the securities for an indefinite period of time, is able
to bear the economic risk of an investment in the securities, and may
withstand a complete loss of the undersigned's investment in the
securities and further, that the undersigned, either alone or together
with the assistance of the undersigned's own professional advisor(s), has
the knowledge and experience in business and financial matters that make
the undersigned capable of reading and interpreting financial statements
of and concerning Executive Telecard, Ltd. and of evaluating the merits
and risks of an investment in the securities; and that the undersigned has
the net worth to undertake these risks.
The undersigned has obtained, to the extent the undersigned
deems necessary, the undersigned's own personal professional advice with
respect to the risk inherent in an investment in the securities and to the
suitability of an investment in the securities in light of the
undersigned's financial condition and investment needs.
NETWORK DATA SYSTEMS, LIMITED
By:
Its: