EX-10.33 7 ex10no33.txt PROMISSORY NOTE PROMISSORY NOTE July 15, 2003 $200,000 WHEREAS, FinancialContent, Inc., a Delaware corporation (the "Company") and Asia Pacific Ventures , a Turks and Caicos Islands company (the "Holder") entered into a certain loan commitment agreement dated July 15, 2003 ("Loan Commitment") whereby the Holder has agreed to make a certain amount of funds available subject to certain terms and conditions, upon demand of the Company; and WHEREAS, the Company pursuant to the terns of the Loan Commitment does hereby make demand upon the Holder against the committed funds in the amount of Two Hundred Thousand Dollars ($200,000); NOW THEREFORE, in consideration duly noted herein, the Parties agree as follows 1. PROMISSORY NOTE. Subject to all the following terms and conditions set forth in this Promissory Note (this "Note"), the Company, for value received, promises to pay to Asia Pacific Ventures, (the "Holder"), in accordance with the provisions hereof, the principal sum of Two Hundred Thousand Dollars ($200,00.00) with interest at the rate set forth in Section 2, below, accrued on such unpaid and principal amount from time to time outstanding until paid, as follows: $20,000.00 per month commencing on September 15, 2003, and continuing on the 15th day of each consecutive month thereafter until the principal and applicable interest is paid in full. All payments of principal and/or interest under this Note shall be paid at the offices of Asia Pacific Ventures, at Suite 1-3 16th Floor, Kinwick Centre, 32 Hollywood Road, Central Hong Kong, Hong Kong, unless otherwise instructed by the Holder. 2. INTEREST. Interest under this Note shall accrue at the rate of 8%, per annum, from the date of such Note until paid in full. Such interest shall only be payable upon the repayment of all principal due hereunder or as otherwise specified herein. 3. SECURITY AGREEMENT. The payment of this note continues to be secured by a Security Agreement dated December 13, 2001 from the Company to Asia Pacific Ventures granting a security interest in and to the following described property: accounts receivable, inventory, machinery, equipment, goodwill and furniture, together with all other property described in or referred to in the Security Agreement. 4. ACCELERATION. Notwithstanding the provisions contained in this Note, the entire amount of principal advanced to the Company under this Note and remaining unpaid, plus all unpaid interest on unpaid principal under this Note, shall immediately be due and payable upon an Event of Default (as hereinafter defined). 1 5. EVENTS OF DEFAULT. If any of the following events shall occur (each herein individually referred to as an "Event of Default"), the Company shall immediately provide notice thereof to the Holder of this Note, who may declare the entire unpaid principal and accrued interest on this Note immediately due and payable, by written notice to the Company effective upon dispatch (provided that upon the occurrence of an event described in subsection 5.1 or 5.2 below, the entire unpaid principal and accrued interest on this Note shall immediately become due and payable), without any other presentment, demand, protest or other notice of any kind or character, all of which are hereby expressly waived, anything herein to the contrary notwithstanding: 5.1. The institution by the Company of proceedings to be adjudicated bankrupt or insolvent, or the consent by it to institution of bankruptcy or insolvency proceedings against it or the filing by it of a petition or answer or consent seeking reorganization or release under the Federal Bankruptcy Code, or any other similar federal or state law, or the consent by it to the filing of any such petition or the appointment of a receiver, liquidator, assignee, trustee, or other similar official, of the Company, or of any substantial part of its property, or the making by it of an assignment for the benefit of creditors, or the admission by it in writing of its inability to pay its debts generally as they become due or the taking of corporate action by the Company in furtherance of any such actions; or 5.2. If, within sixty (60) days after the commencement of an action against the Company seeking any bankruptcy, insolvency, reorganization, liquidation, dissolution or similar relief under any present or future statute, law or regulation, such action shall not have been dismissed or all orders or proceedings thereunder affecting the operations or the business of the Company stayed, or if the stay of any such order or proceeding shall thereafter be set aside, or if, within sixty (60) days after the appointment without the consent or acquiescence of the Company of any trustee, receiver or liquidator of the Company or of all or any substantial part of the properties of the Company, such appointment shall not have been vacated; or 5.3. The Company shall have defaulted in payment of principal or interest under this Note and such default shall have continued for ten days following written notice thereof from the Holder. 6. REPRESENTATIONS. The Company hereby represents and warrants that: 6.1. Organization and Good Standing. The Company is a corporation duly organized, validly existing and in good standing under the laws of the State of Delaware. 6.2. Due Authorization, Execution and Enforceability. The execution and delivery by the Company of and the performance of its obligations under this Note have been duly authorized by all necessary corporate action on the part of 2 the Company and this Note has been duly and validly executed and delivered by the Company and constitutes a valid and binding agreement of the Company enforceable in accordance with its terms. 6.3. No Default or Conflicts. The execution and delivery of this Note by the Company and the performance by the Company of its obligations under this Note do not and will not conflict with or result in a violation or breach of, or require any consent, approval, authorization or order under, (i) any applicable law, statute, rule or regulation, judgment, injunction, order, decree or agreement or (ii) the certificate of incorporation or bylaws of the Company. 7. NO RIGHTS OR LIABILITIES AS STOCKHOLDER. This Note does not by itself entitle the Holder to any voting rights or other rights as a stockholder of the Company 8. AMENDMENT; WAIVER. Any term of this Note may be amended, and the observance of any term of this Note may be waived (either generally or in a particular instance and either retroactively or prospectively) by the written consent of the Company and the Holder. Any amendment or waiver effected in accordance with the previous sentence shall be binding upon each future holder or transferee of this Note (or part thereof) and the Company. The Company and all endorsers and guarantors of this Note hereby waive presentment, demand, protest, notice of dishonor, notice of non-payment, notice of maturity and notice of protest for nonpayment of this Note and consent to any extension or postponement of the time of payment or any other indulgence. 9. ASSIGNMENT. This Note may not be assigned or transferred by the Holder without the prior written consent of the Company. 10. SUCCESSORS AND ASSIGNS. Subject to Section 8, all covenants, agreements and undertakings in this Note by or on behalf of any of the parties shall bind and inure to the benefit of the respective successors and assigns of the parties whether so expressed or not. 11. TREATMENT OF NOTE. To the extent permitted by generally accepted accounting principles, the Company will treat, account and report the Note as debt and not equity for accounting purposes and with respect to any returns filed with federal, state or local tax authorities. 12. HEADINGS. The headings in this Note are for purposes of convenience of reference only, and shall not be used to interpret this Note. 13. NOTICES. Any notice, request or other communication required or permitted hereunder must be given in writing and shall be deemed to have been duly given when personally delivered or when deposited in the United States mail 3 by registered or certified mail, postage prepaid or sent via a nationally recognized overnight courier service to the Company or the Holder at their respective addresses set forth below: To the Company: FinancialContent, Inc. 400 Oyster Point Blvd., Suite 435 So. San Francisco, CA 94080 Attn: Wing Yu, CEO To the Holder: Asia Pacific Ventures Suite 1-3 16th Floor Kinwick Centre 32 Hollywood Road Central Hong Kong, Hong Kong The Company or Holder may each by written notice so given change its address for future notices hereunder. 14. GOVERNING LAW; JURISDICTION. This Note shall be construed and enforced in accordance with, and governed by, the internal laws of the State of California, excluding that body of law applicable to conflicts of law. 15. ATTORNEYS' FEES. The parties hereto shall pay their own legal fees. If action is brought to enforce the provisions of this Note, the prevailing party shall be entitled to recover its reasonable costs and expenses, including legal fees and disbursements of counsel. 16. TERMS BINDING. By execution hereof, the Holder of this Note (and each subsequent holder of this Note) accepts and agrees to be bound by all the terms and conditions of this Note. 17. SEVERABILITY. In the event any one or more of the provisions of this Note shall for any reason be held to be invalid, illegal or unenforceable, in whole or in part or in any respect, or in the event that any one or more of the provisions of this Note operate or would prospectively operate to invalidate this Note, then and in any such event, such provision(s) only shall be deemed null and void and shall not affect any other provision of this Note and the remaining provisions of this Note shall remain operative and in full force and effect and in no way shall be affected, prejudiced or disturbed thereby. 4 18. ENTIRE AGREEMENT. This Note constitutes and contains the entire agreement of the parties and supersedes any and all prior negotiations, correspondence, understandings, agreements, duties or obligations between the parties respecting the subject matter hereof. IN WITNESS WHEREOF, the parties duly authorized representatives have entered into this Note as of the date first written above. FINANCIALCONTENT, INC. a Delaware corporation By: /s/ Wing Yu ---------------------------- Name: Wing Yu Title: Chief Executive Officer ASIA PACIFIC VENTURES By: /s/ Tan Geok Lin ---------------------------- Name: Tan Geok Lin Title: 5