EX-99.4 2 v226300_ex4.htm
NOTE PURCHASE AGREEMENT
Exhibit 4
EXECUTION VERSION
NOTE PURCHASE AGREEMENT
THIS NOTE PURCHASE AGREEMENT (this “Agreement”) is entered into as of June 14, 2011, by and among KEYON COMMUNICATIONS HOLDINGS, INC., a Delaware corporation (the “Company”), and CALIFORNIA CAPITAL EQUITY, LLC, a Delaware limited liability company (the “Investor”).
THE PARTIES HEREBY AGREE AS FOLLOWS:
5.16 Data Center Hosting. Promptly following the closing of the transactions contemplated by that certain Asset Purchase and Sale Agreement, dated as of June 10, 2011, by and among: (i) KeyOn Comm X LLC, a Nevada limited liability company, and the Company; (ii) CommX Holdings, Inc., a Florida corporation (“CommX Holdings”); (iii) CommX, Inc., a Florida corporation (“CommX Inc.”); and (iv) Communications Xchange, LLC, a Florida limited liability company, (“Xchange”) and together with CommX Holdings and CommX Inc., “CommX”), the Company and CommX, on the one hand, and the Investor or its affiliates, on the other hand, shall enter into a data center hosting agreement sufficient for the requirements of the the CommX VOIP technology stack, with pricing at commercially reasonable terms and no less favorable than would be obtainable in a comparable arm's length transaction with a Person unrelated to the Investor. The hosting location shall be at the Investor’s data center located in Phoenix, Arizona.
[new requirement]
EX-99.5 3 v226300_ex5.htm
SECURED CONVERTIBLE PROMISSORY NOTE
Exhibit 5
THIS SECURED CONVERTIBLE PROMISSORY NOTE AND ANY SECURITIES INTO WHICH THIS SECURED CONVERTIBLE PROMISSORY NOTE IS CONVERTIBLE HAVE BEEN ACQUIRED FOR INVESTMENT AND HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR QUALIFIED UNDER ANY STATE SECURITIES LAWS. SUCH SECURITIES MAY NOT BE SOLD OR TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR QUALIFICATION OR AN EXEMPTION THEREFROM UNDER SAID ACT AND ANY APPLICABLE STATE SECURITIES LAWS.
THIS SECURED CONVERTIBLE PROMISSORY NOTE AND ANY SECURITIES INTO WHICH THIS SECURED CONVERTIBLE PROMISSORY NOTE IS CONVERTIBLE ARE SUBJECT TO RESTRICTIONS ON TRANSFER CONTAINED IN THAT CERTAIN NOTE PURCHASE AGREEMENT, DATED AS OF JUNE 14, 2011, BETWEEN THE COMPANY AND THE LENDER REFERENCED HEREIN, WHICH RESTRICTIONS ON TRANSFER ARE INCORPORATED HEREIN BY REFERENCE.
SECURED CONVERTIBLE PROMISSORY NOTE
$2,600,000
June 14, 2011
Los Angeles, California
9. Default.
(a) Events of Default. For purposes of this Note, any of the following events which shall occur shall constitute an “Event of Default”:
9
(i) any indebtedness under this Note is not paid when and as the same shall become due and payable, whether at maturity, by acceleration or otherwise; provided, however, that in the case of an interest payment default, such interest payment default shall not constitute an Event of Default if such default is cured within 15 days;
(ii) a default shall occur in the observance or performance of
(A) any covenant, obligation or agreement of the Company contained in Sections 7 or 8, or (B) any other provision of this Note, the Agreement or any of the Collateral Documents and such default shall continue uncured for a period of 15 days after the Company knew or should have known, exercising reasonable diligence, of the event or circumstances giving rise to such default; or any “Event of Default” shall exist under any Collateral Document (as defined therein);
(iii) any representation, warranty or certification made by the Company herein or in the Agreement or the Collateral Documents or in any certificate, report, document, agreement or instrument delivered pursuant to any provision hereof or thereof shall prove to have been false or incorrect in any material respect on the date or dates as of which made;
(iv) any “Event of Default” shall occur under any of the other Convertible Note Documents;
(v) the Company shall
(A) apply for or consent to the appointment of a receiver, trustee, custodian or liquidator of itself or any part of its property,
(B) become subject to the appointment of a receiver, trustee, custodian or liquidator for itself or any part of its property that is not discharged or stayed within 60 days after such appointment,
(C) make an assignment for the benefit of creditors,
(D) or fail generally or admit in writing to its inability to pay its debts as they become due, (E) institute any proceedings under the United States Bankruptcy Code or any other federal or state bankruptcy, reorganization, receivership, insolvency or other similar law affecting the rights of creditors generally, or file a petition or answer seeking reorganization or an arrangement with creditors to take advantage of any insolvency law, or file an answer admitting the material allegations of a bankruptcy, reorganization or insolvency petition filed against it, or
(F) become subject to any involuntary proceedings under the United States Bankruptcy Code or any other federal or state bankruptcy, reorganization, receivership, insolvency or other similar law affecting the rights of creditors generally that is not dismissed within 60 days after commencement, or have an order for relief entered against it in any proceeding under the United States Bankruptcy Code that is not dismissed within 60 days of entry;
(vi) the Company shall
(A) liquidate, wind up or dissolve (or suffer any liquidation, wind-up or dissolution), except to the extent expressly permitted by Section 7,
(B) suspend its operations other than in the ordinary course of business, or
(C) take any action to authorize any of the actions or events set forth above in Section 9(a)(vi);
CCE coughed up another 2.6 mm with a very tight, boiler plate perhaps but tight, agreement.
I think PSS at that point had decided to use any IP, patents, etc for his "vision" and when KEYON COMM continued to lose money after 3rd quarter, Sept, he did what he wanted; had the officers sign saying they agreed to the poor earnings report (in filings ??? really), they wanted to continue with cable comp and PSS had a different idea but by lending $$, CCE and buying shares - he now had CONTROL OF KEYO. CCE was able to absorb the shares, company, assets and do what they wanted. Tom Witten took co dark as part of winding down, Has his own comp now with Nant trademark on home page (Inverse Entropy).
CCE has at least one other "branch" and they do some incredible dealings with RM, RTM's, crazy stuff - reveiw them as well and CCE z
Extensive filings, in depth and unusual for a stinky pinky no? Even if boilerplate, not usual for scams. We know PSS is not a scam CEO like other is pinkville, he is legit, has money, etc.
Read the filings like a book of chess moves, then PSS shuts it down but doesn't kill it - still alive and kicking in DE.
How may he eventually use the shell of KEYO, maybe re-sell (or "rent out" like he does Raptor shell, IMO);
the Doctor is a very Shrewd business man who is getting what he wants so I will hang and see how this plays out. GLTUA
If NOTHING ELSE, what I have learned about the future of healthcare and treatment for CANCER has been invaluable - makes me sleep better knowing if another loved one is dx'd, Im heading to Providence!
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