Exhibit 4.10


 


THE SECURITIES REPRESENTED
HEREBY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED
(THE “ACT”), OR UNDER THE SECURITIES LAWS OF ANY STATE. THESE SECURITIES
ARE SUBJECT TO RESTRICTIONS ON TRANSFERABILITY AND RESALE AND MAY NOT BE
TRANSFERRED OR RESOLD EXCEPT AS PERMITTED UNDER THE ACT AND APPLICABLE STATE
SECURITIES LAWS, PURSUANT TO REGISTRATION OR AN EXEMPTION THEREFROM. THE ISSUER
OF THESE SECURITIES MAY REQUIRE AN OPINION OF COUNSEL IN FORM AND SUBSTANCE
SATISFACTORY TO THE ISSUER TO THE EFFECT THAT ANY PROPOSED TRANSFER OR RESALE
IS IN COMPLIANCE WITH THE ACT AND ANY APPLICABLE STATE SECURITIES LAWS.


 


IT&E, INC.


 


PROMISSORY NOTE


 


	
  $770,000

  	
   

  	
  October
  3, 2007

  



 


IT&E, Inc., a Pennsylvania corporation (the “Borrower”),
for value received, promises to pay to Averion International Corp., a Delaware
corporation or its assignee(s) (“Holder”), Seven Hundred Seventy
Thousand Dollars ($770,000) (the “Loan Amount”), plus interest thereon
on the outstanding principal balance hereof from the date of this Note until
paid at the rate of eight percent (8%) per annum, cumulative, but not
compounded.


 


This Promissory Note (this “Note”) is issued
pursuant to that certain Asset Purchase Agreement dated as of even date
herewith among the Borrower and the initial Holder (the “Asset Purchase
Agreement”). The Asset Purchase Agreement is incorporated herein by
reference as though fully set forth herein. Capitalized terms not otherwise
defined herein shall have the meanings ascribed to such terms in the Asset
Purchase Agreement.


 


Interest accrued under this Note shall be payable
monthly in arrears on the last day of each month until the date that is the
third (3rd) anniversary of the date of this Note at which time all
outstanding principal, plus any accrued but unpaid interest shall become
immediately due and payable. Payments under this Note are required without
presentment, demand, protest, notice of any kind or notice of dishonor, all of
which are hereby expressly waived.


 


Payments are to be made at the address of the Holder
or at such other place in the United States as the Holder shall designate to
the Borrower in writing, in lawful money of the United States of America. Payment
on this Note shall be applied first to accrued interest, and thereafter to the
outstanding principal balance hereof. This Note may be prepaid in whole or in
part at any time without penalty, fee, acceleration or premium.


 


The following is a statement of the rights of the
Holder and the conditions to which this Note is subject, and to which the
Holder, by the acceptance of this Note, agrees:


 


1.                                       Default. Each of the following events shall be an “Event of Default”
hereunder:


 


a.                                       The Borrower fails to timely make any payment
due under this Note;


 


b.                                      The Borrower defaults in the performance of
any material covenant or agreement, or breaches any covenant or agreement in
any Transaction Document or any instrument or agreement evidencing the Secured
Debt, and the expiration of the applicable period of grace, if any, specified
in such agreement.


 





















 


c.                                       The Borrower shall be or become insolvent, or
is unable to meet any of its obligations as they become due or the Holder, in
its sole discretion, believes the prospect of payment and performance of any
obligation is materially impaired, or shall make an assignment for the benefit
of creditors; or the Borrower shall apply for or consent to the appointment of
any receiver, trustee, or similar officer for it or for all or any substantial
part of its property; or such receiver, trustee or similar officer shall be
appointed without the application or consent of the Borrower; or the Borrower
shall institute (by petition, application, answer, consent or otherwise) any
insolvency, reorganization, arrangement, readjustment of debt, dissolution, liquidation
or similar proceeding relating to it under the laws of any jurisdiction; or any
such proceeding shall be instituted (by petition, application or otherwise)
against the Borrower; or any judgment, writ, warrant of attachment or execution
or similar process shall be issued or levied against a substantial part of the
property of the Borrower; or


 


d.                                      A petition naming the Borrower as debtor
shall be filed under the United States Bankruptcy Code (unless such petition is
dismissed or discharged within ninety (90) days).


 


Upon the occurrence of an Event of Default
hereunder, all unpaid principal, accrued interest and other amounts owing
hereunder shall, at the option of Holder be immediately due, payable and
collectible by Holder pursuant to applicable law without presentment, demand,
protest, notice of any kind or notice of dishonor, all of which are hereby
expressly waived.


 


If an Event of Default occurs and is continuing, the
Holder may pursue any available remedy by proceeding at law or in equity to
collect the payment of amounts due on this Note or to enforce the performance
of any provision of this Note. A delay or omission by the Holder in exercising
any right or remedy accruing upon an Event of Default shall not impair the
right or remedy or constitute a waiver of or acquiescence in the Event of
Default. A waiver on any one occasion shall not be construed as a bar to or
waiver of any such right or remedy on any future occasion. No remedy is
exclusive of any other remedy. All available remedies are cumulative to the
extent permitted by law.


 


2.                                       Covenants. So long as this Note, the Term Note or any payment obligation under
the Asset Purchase Agreement shall remain outstanding or unpaid, the Borrower
will comply with the following requirements, unless the Holder shall otherwise
consent in writing:


 


a.                                       Books and Records; Inspection and Examination. The Borrower will keep accurate books of
record and account for itself pertaining to the Borrower’s business and
financial condition and such other matters as the Holder may from time to time
request in which true and complete entries will be made in accordance with GAAP
consistently applied and, upon request of and reasonable notice by the Holder,
will permit, upon reasonable notice, any officer, employee, attorney or
accountant for the Holder to audit, review, make extracts from or copy any and
all corporate and financial books and records of the Borrower at all reasonable
times during ordinary business hours on reasonable advance notice, to discuss
the affairs of the Borrower with any of its directors, officers, employees or
agents and to conduct a review of the Borrower’s books and records.


 


b.                                      Weekly Reports. For so long as the this Note, the Term Note
or any payment obligation under the Asset Purchase Agreement remain
outstanding, the Borrower will provide to Holder weekly reports containing a
current aging of all of Borrower’s accounts receivable, accounts payable and a
complete and accurate representation as to back log as of such date and such
other information as the Holder may request reasonably from time to time.


 


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c.                                       Monthly Financials. For so long as the this Note, the Term Note
or any payment obligation under the Asset Purchase Agreement remain outstanding,
Borrower will furnish Holder: (i) at least thirty (30) days prior to the
beginning of each fiscal year an annual budget and operating plans for such
fiscal year (and as soon as available, any subsequent written revisions
thereto); and (ii) as soon as practicable after the end of each month, and
in any event within twenty (20) days thereafter, a balance sheet of the
Borrower as of the end of each such month, and a statement of income and a
statement of cash flows of the Borrower for such month and for the current
fiscal year to date, including a comparison to plan figures for such period,
prepared in accordance with generally accepted accounting principles
consistently applied, with the exception that no notes need be attached to such
statements and year-end audit adjustments may not have been made.


 


d.                                      Negative Covenants. The Borrower shall not effect any of the
following actions unless concurrent with the closing of the applicable action
this Note, the Term Note and any remaining payment obligation under the Asset
Purchase Agreement are all repaid in full (collectively, the “Negative
Covenants”):


 


i.                                          amend any of its charter documents or bylaws
in a manner that may materially and adversely affect the Holder;


 


ii.                                       issue any shares of capital stock of the Borrower
from any existing class or series of capital stock or otherwise authorize,
create or issue any new class or series of securities; ; other than issuances
of shares of existing capital stock to employees, officers, directors or
consultants of the Borrower pursuant to equity incentive plans or other
arrangements approved by Borrower’s board of directors in connection with
services provided by such individuals; provided, however that all such
issuances together do not constitute a change of control of Borrower;


 


iii.                                    agree to or effect any sale, liquidation,
winding up, or merger of the Borrower or any other transaction or series of
transactions in which the Borrower’s assets are transferred;


 


iv.                                   effect any material acquisitions of or
investments (whether by merger, consolidation or otherwise) in any other person
or entity or make any material capital expenditures;


 


v.                                      declare or pay any dividend on or make a
distribution with respect to any capital stock of the Borrower, or repurchase
or redeem any capital stock of the Borrower;


 


vi.                                   enter into any debt or lease transaction or
otherwise incur any indebtedness other than trade payables incurred in the
ordinary course of business;


 


vii.                                make any loans or loan guarantees;


 


viii.                             pledge or grant a security interest in any
assets of the Borrower (other than with respect to the Secured Debt);


 


ix.                                     establish or invest in any subsidiary or
joint venture;


 


x.                                        engage in any action which would materially
and adversely affect the rights of Holder under any Transaction Document;


 


xi.                                     effect any transaction with any affiliate,
officer, director, employee or shareholder or change any senior officer of the
Borrower;


 


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xii.                                  effect any material change to the Borrower’s
line of business as in effect on the date hereof; or


 


xiii.                               increase the total cash compensation of any
Borrower officer, director, employee or consultant calculated as of the date
immediately preceding the date hereof or pay any cash bonus or other cash remuneration
to any of the foregoing; provided, however, that the Borrower shall be
permitted to make customary cost of living increases to such cash compensation
on an annual basis.


 


3.                                       Loss, Theft or Destruction of Note. Upon receipt by the Borrower of evidence
reasonably satisfactory to it of the loss, theft or destruction of this Note
and of indemnity or security reasonably satisfactory to it, the Borrower will
make and deliver a new Note which shall carry the same rights to interest
(unpaid and to accrue) carried by this Note, stating that such Note is issued
in replacement of this Note, making reference to the original date of issuance
of this Note (and any successors hereto) and dated as of such cancellation.


 


4.                                       Cross Default. An Event of Default under any of the
Transaction Documents or any instrument or agreement evidencing the Secured
Debt shall be an event of default under all the Transaction Documents. In such
event, the Holder shall be entitled to exercise any remedies available to it
pursuant to the Transaction Documents or at law, including, without limitation,
accelerate and declare all of the obligations under their respective
Transaction Documents to be immediately due, payable, and performable.


 


5.                                       Miscellaneous.


 


a.                                       Governing Law. This Note shall be governed by and
construed in accordance with the laws of the State of Delaware without giving
effect to its choice of laws provisions.


 


b.                                      Entire Agreement. The Transaction Documents comprise the
final and complete integration of all prior expressions by the parties hereto
with respect to the subject matter hereof and shall constitute the entire
agreement among the parties hereto with respect to such subject matter,
superseding all prior oral or written understandings.


 


c.                                       Assignment. This Agreement shall become effective upon delivery of fully executed
counterparts hereof to each of the parties hereto, and shall be binding upon
and inure to the benefit of the Borrower and the Holder and their respective
successors and assigns; provided, however, that the Borrower shall have no
right to assign any of its rights or obligation hereunder, or any interest
herein, without first obtaining the prior written consent of the Holder.


 


d.                                      Notices. All notices, requests, demands and other communications hereunder shall
be in writing to the parties at the addresses set forth in Section 13.7 of the
Asset Purchase Agreement, or at such other address as shall be given in writing
by a party to the other parties, and shall be deemed to have been duly given at
the earlier of (i) the time of actual delivery, (ii) the next business day
after deposit with a nationally recognized overnight courier specifying next
day delivery, with written verification of receipt, (iii) when sent by
facsimile or electronic mail if receipt is confirmed, or (iv) on the fifth
business day following the date deposited with the United States Postal
Service, postage prepaid, certified with return receipt requested.


 


e.                                       Enforcement. The Borrower shall pay all reasonable fees and expenses, including
reasonable attorneys’ fees, incurred by the Holder in the enforcement in any of
the Borrower’s obligations hereunder not performed when due.


 


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f.                                         Amendment or Waiver. This Note may be amended or a provision hereof
waived only in a writing signed by the Borrower and the Holder. Any amendment
to or waiver of this Agreement implemented pursuant to a writing signed by the
Borrower and the Holder in compliance with this Section shall be binding upon
each party’s respective successors or assigns.


 


[Remainder of Page Intentionally Left Blank]


 


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IN WITNESS WHEREOF, the Borrower has caused this
Note to be executed by its officer thereunto duly authorized.


 


	
   

  	
  BORROWER:

  
	
   

  	
   

  	
   

  
	
   

  	
  IT&E, INC.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Harvey F. Greenawalt, Jr.

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Name:

  	
   Harvey F. Greenawalt, Jr.

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Title:

  	
   President

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Philip D. Clark

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Name:

  	
   Philip D. Clark

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Title:

  	
   V.P., Business Development

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Address:

  	
  1610 Medical Drive

  
	
   

  	
   

  	
  Pottstown, PA 19484

  
	
   

  	
   

  	
   

  
									



 


 


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