Non-Negotiable 12% Promissory Note - On Ramp Inc. and THINK New Ideas Inc.
THIS NOTE HAS NOT BEEN THE SUBJECT OF REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR UNDER THE SECURITIES LAWS OF ANY STATE AND THE SAME HAS BEEN ISSUED IN RELIANCE ON EXEMPTIONS FROM THE REGISTRATION REQUIREMENTS OF SAID ACT AND SUCH LAWS. THIS NOTE MAY NOT BE SOLD, TRANSFERRED, PLEDGED, HYPOTHECATED OR OTHERWISE DISPOSED OF EXCEPT AS PERMITTED UNDER SUCH SECURITIES LAWS, PURSUANT TO REGISTRATION OR EXEMPTION THEREFROM. NON-NEGOTIABLE 12% PROMISSORY NOTE ---------------------------------- $1,000,000 New York, New York March 31, 1996 FOR VALUE RECEIVED, the undersigned, On Ramp, Inc., a New York corporation (hereinafter referred to as the "Maker"), hereby promises to pay to Think New Ideas, Inc., a Delaware corporation (the "Payee") at 16815 Royal Crest Drive, Suite 160, Houston, Texas 77058, or at such other place as the holder hereof may from time to time designate in writing, the principal sum of One Million Dollars ($1,000,000) in one installment due April 30, 1997 or such later date as extended by the Payee as set forth below (the "Maturity Date"), together with interest from and after the date hereof at the rate of twelve percent (12%) per annum computed on the unpaid principal balance. Interest shall be paid by Maker to the Payee on the Maturity Date. By acceptance of this Non-Negotiable 12% Promissory Note (the "Note"), the Payee represents, warrants, covenants and agrees that he, she or it will abide by and be bound by its terms. 25. Prepayment and Notices. The unpaid principal balance outstanding under ---------------------- this Note may be prepaid in part or in full by the Maker without penalty, upon thirty (30) days notice to the Payee stating the repayment amount and repayment date (the "Repayment Date"). 26. Collateral. Repayment of amounts outstanding and/or owing hereunder is ---------- collateralized by the pledge of twenty-six shares of Common Stock of the Maker, which shares represent fifty-two percent (52%) of the issued and outstanding common stock of the Maker (the "Collateral") pursuant to the terms of a certain pledge agreement, dated as of the date hereof, by and among the Maker, the Payee and Adam Curry, the beneficial owner and owner of record of the Collateral, which agreement shall remain in effect until terminated pursuant to its terms. 27. Restricted Securities. By acceptance hereof, the Payee understands and --------------------- agrees that this Note is a "restricted security" under the federal securities laws inasmuch as it is being acquired from the Maker in a transaction not involving a public offering and have not been the subject of registration under the Securities Act and that under such laws and applicable regulations such security may be resold in the absence of registration under the Securities Act only in certain limited circumstances. The Payee hereby represents that it is familiar with Rule 144 promulgated under the Securities Act, as presently in effect, and understands the resale limitations imposed thereby and by the Securities Act. 28. Presentment. Except as set forth herein, Maker waives presentment, demand ----------- and presentation for payment, notice of nonpayment and dishonor, protest and notice of protest and expressly agrees that this Note or any payment hereunder may be extended from time to time by the Payee without in any way affecting the liability of Maker. <PAGE> 29. Notices. ------- (a) Notices to the Payee. Any notice required by the provisions of this Note -------------------- to be given to the holder hereof shall be in writing and may be delivered by personal service, facsimile transmission or by registered or certified mail, return receipt requested, with postage thereon fully prepaid or overnight delivery courier. All such communications shall be addressed to the Payee of record at its address appearing on the books of the Maker. Service of any such communication made only by mail shall be deemed complete on the date of actual delivery as shown by the addressee's registry or certification receipt or at the expiration of the third (3rd) business day after the date of mailing, whichever is earlier in time. (b) Notices to the Maker. Whenever any provision of this Note requires a -------------------- notice to be given or a request to be made to the Maker by the Payee or the holder of any other security of the Maker obtained in connection with a recapitalization, merger, dividend or other event affecting this Note, then and in each such case, any such notice or request shall be in writing and shall be sent by registered or certified mail, return receipt requested with postage thereon fully prepaid to the Maker at its principal place of business. No notice given or request made hereunder shall be valid unless signed by the Payee of this Note or other holder giving such notice or request (or, in the case of a notice or request by Holders of a specified percent in aggregate principal amount of outstanding Notes, unless signed by each Holder of a Note whose Note has been counted in constituting the requisite percentage of Notes required to give such notice or make such request). 30. Events of Default. ----------------- (a) Each of the following shall constitute an event of default (an "Event of Default") hereunder: (i) the failure to pay when due any principal or interest hereunder and the continuance of such failure for a period of thirty (30) days after written notice from the Payee to the Maker of such failure; (ii) the violation by the Maker of any covenant or agreement contained in this Note and the continuance of such violation for a period of thirty (30) days after written notice from the Payee to the Maker of such failure; (iii) any change in control of the Maker which is not previously approved by the written consent of the Payee; (iv) the assignment for the benefit of creditors by the Maker; (v) the application for the appointment of a receiver or liquidator for the Maker or the property of the Maker; (vi) the filing of a petition in bankruptcy by or against the Maker; (vii) the issuance of an attachment or the entry of a judgment against the Maker in excess of $50,000; (viii) a default by the Maker with respect to any other indebtedness due to the Payee; (ix) the making or sending of a notice of intended bulk sale by the Maker; or (x) the termination of existence, dissolution or any other insolvency of the Maker. Upon the occurrence of any of the foregoing Events of Default, this Note shall be considered to be in default and the entire unpaid principal sum hereof, together with accrued interest, shall at the option of the holder hereof become immediately due and payable in full. Upon the occurrence of an Event of Default which remains uncured as set forth herein and the placement of this Note in the hands of an attorney for collection, the Maker agrees to pay reasonable collection costs and expenses, including reasonable attorneys' fees and interest from the date of the default at the rate of fifteen percent (15%) per annum computed on the unpaid principal balance. 2 <PAGE> (b) The Payee may waive any Event of Default hereunder. Such waiver shall be evidenced by written notice or other document specifying the Event or Events of Default being waived and shall be binding on all existing or subsequent Payees under this Note. 31. Cure Period. Notwithstanding anything else to the contrary set forth ----------- herein, upon the occurrence of an Event of Default, including but not limited to the failure to pay when due any principal or interest hereunder, the Maker shall have six (6) months from the date of the occurrence of such Event of Default to cure such default, during which time, the Payee may not take any action with respect to the Collateral, collection of amounts due and owing hereunder or enforcement of the provisions hereof. 32. Construction; Governing Law. The validity and construction of this Note --------------------------- and all matters pertaining hereto are to be determined in accordance with the laws of the State of Delaware without regard to the conflicts of law principles thereof. IN WITNESS WHEREOF, the Maker has executed this Non-Negotiable 12% Promissory Note as of this 31st day of March, 1996. ON RAMP, INC. By: /s/ Adam Curry ------------------------------------ Adam Curry, President 3