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