SECURED PROMISSORY NOTE
FOR VALUE RECEIVED, the undersigned, ______________________
("Maker"), promises to pay to Infinity International Financial Technology, Inc.,
a California corporation ("Infinity"), at 640 Clyde Court, Mountain View 94043,
may from time to time designate, without counterclaim, deduction or offset of
any kind, in lawful money of the United States, the principal sum of
$___________ plus interest thereon, as set forth below.
1. INTEREST. Interest on the principal sum of this Note shall
accrue at the rate of ____ % per annum, compounded annually, based on a 365 day
year and the actual number of days elapsed.
2. INTEREST PAYMENTS. Interest only shall be payable in
arrears on the fifteenth day of April of each year during the term of this Note,
commencing on ________, and continuing until such time that the entire principal
sum and any other sums payable hereunder are paid in full; provided, that if
such payment date is not a business day, then payment shall be due on the first
business day following such payment date.
3. PRINCIPAL PAYMENTS. Subject to Section 4(b) and (c) below,
all principal shall be due and payable hereunder five (5) years from the date
hereof; provided, that if such payment date is not a business day, then payment
shall be due on the first business day following such payment date.
(a) Permissive. This Note may be prepaid in whole or
in part, at any time, without penalty or premium.
(b) Mandatory Prepayment. Maker shall be required to
prepay all principal and accrued but unpaid interest due under this Note within
ten (10) business days after the closing of any of the following: (i) any
acquisition of Infinity by another entity by means of merger or consolidation
resulting in the exchange of the outstanding shares of Infinity for securities
or consideration issued, or caused to be issued, by the acquiring corporation or
its subsidiary (other than a reincorporation), or (ii) any other transaction or
series of related transactions which will result in Infinity's shareholders
immediately prior to such transaction, or series of related transactions, not
holding at least 50% of the voting stock of Infinity, or (C) a sale or other
transfer of all or substantially all of the assets of Infinity, or (D) any
transfer (including transfer by
exclusive license) of all or substantially all of Infinity's rights to its
technology (other than any exclusive license of such technology for limited
geographic territories which does not result in the transfer of more than fifty
percent (50%) of Infinity's business operations as determined on the basis of
revenue accrued by Infinity during the preceding twelve (12) months period.
5. APPLICATION OF PAYMENTS. All payments and prepayments
received by Holder shall be applied first to accrued interest, then to other
charges due with respect to this Note, the Pledge Agreement, and the other
Transaction Documents, and then to the unpaid principal balance in inverse order
6. SECURITY. This Note is secured by a Stock Pledge Agreement
of even date herewith (the "Pledge Agreement"), encumbering certain shares of
common stock of Infinity held by Maker (the "Collateral").
7. DEFAULT AND REMEDIES.
a. Default. Maker will be in default under this Note
if (i) Maker fails to make a payment of principal and/or interest hereunder when
due or declared due, whether at scheduled maturity, by acceleration or
otherwise, within ten (10) business days after receipt of written notice of such
nonpayment; (ii) Maker breaches any other material covenant, agreement or
understanding under this Note or the Pledge Agreement and such breach continues
for ten (10) or more business days after the receipt of written notice from
Infinity of the occurrence of such breach; (iii) except as permitted by the
Pledge Agreement, Maker agrees to or does sell, convey, encumber, hypothecate or
otherwise alienate the Collateral, or any part thereof, of any interest therein,
or if divested of its title to the Collateral or any interest therein in any
manner or any way, whether voluntarily or involuntarily, without the prior
written consent of Holder, or if any other person or entity with a security
interest in the Collateral exercises or seeks to exercise the remedies of a
secured party with respect to the Collateral; or (iv) Maker files a petition in
bankruptcy, is adjudicated insolvent, petitions or applies to any tribunal for
the appointment of a receiver, custodian, or any trustee for Maker or commences
any proceeding under any bankruptcy, reorganization, arrangement, readjustment
of debt, dissolution or liquidation law or statute of any jurisdiction or any
such proceeding has been commenced against Maker which remains undismissed for a
period of sixty days.
b. Remedies. Upon Maker's default, Infinity may (i)
upon written notice to Maker, declare the entire principal sum and all accrued
and unpaid interest hereunder immediately due and payable and (ii) exercise any
and all of the remedies provided in the Pledge Agreement and applicable law.
a. All communications or notices required or given
under this Note shall be given in accordance with the provisions of Section
12(e) of the Pledge Agreement.
b. This Note may be modified only by a written
agreement executed by Maker and Infinity.
c. This Note shall be governed by California law.
d. The terms of this Note shall inure to the benefit
of and bind Maker and Infinity and their respective heirs, legal representatives
and successors and assigns.
e. Time is of the essence with respect to all matters
set forth in this Note.
f. If this Note is destroyed, lost or stolen, Maker
will deliver a new note to Infinity on the same terms and conditions as this
Note with a notation of the unpaid principal and accrued and unpaid interest in
substitution of the prior Note. Infinity shall furnish to Maker reasonable
evidence that the Note was destroyed, lost or stolen and any security or
indemnity that may be reasonably required by Maker in connection with the
replacement of this Note.
IN WITNESS WHEREOF, Maker has executed this Note as of the
date and year first above written.