THIS NOTE AND THE COMMON SHARES ISSUABLE UPON CONVERSION OF
THIS NOTE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED. THIS NOTE AND THE COMMON SHARES ISSUABLE
UPON CONVERSION OF THIS NOTE MAY NOT BE SOLD, OFFERED FOR
SALE, PLEDGED OR HYPOTHECATED IN THE ABSENCE OF AN EFFECTIVE
REGISTRATION STATEMENT AS TO THIS NOTE UNDER SAID ACT OR AN
OPINION OF COUNSEL REASONABLY SATISFACTORY TO SCIENCE DYNAMICS
CORPORATION THAT SUCH REGISTRATION IS NOT REQUIRED.
CONVERTIBLE NOTE
----------------
FOR VALUE RECEIVED, SCIENCE DYNAMICS CORPORATION, a Delaware
corporation (hereinafter called "Borrower"), hereby promises to pay to
LAURUS MASTER FUND, LTD., c/o Ironshore Corporate Services Ltd., P.O. Box
1234 G.T., Queensgate House, South Church Street, Grand Cayman, Cayman
Islands, Fax: 000-000-0000 (the "Holder") or its registered assigns on
order, without demand, the sum of Fifty Six Thousand Dollars
($56,000.00), with simple interest accruing at the annual rate of 8%, on
August __, 2003 (the "Maturity Date").
The following terms shall apply to this Note:
ARTICLE I
DEFAULT RELATED PROVISIONS
1.1 Payment Grace Period. The Borrower shall have a ten (10)
day grace period to pay any monetary amounts due under this Note, after
which grace period a default interest rate of twenty percent (20%) per
annum shall apply to the amounts owed hereunder.
1.2 Conversion Privileges. The Conversion Privileges set
forth in Article II shall remain in full force and effect immediately
from the date hereof and until the Note is paid in full.
1.3 Interest Rate. Subject to the Holder's right to convert,
interest payable on this Note shall accrue at the annual rate of eight
percent (8%) and be payable in arrears commencing September 30, 2002 and
quarterly thereafter, and on the Maturity Date, accelerated or otherwise,
when the principal and remaining accrued but unpaid interest shall be due
and payable, or sooner as described below.
-1-
ARTICLE II
CONVERSION RIGHTS
The Holder shall have the right to convert the principal
amount and interest due under this Note into Shares of the Borrower's
Common Stock as set forth below.
2.1. Conversion into the Borrower's Common Stock.
(a) The Holder shall have the right from and after the
issuance of this Note and then at any time until this Note is fully paid,
to convert any outstanding and unpaid principal portion of this Note,
and/or at the Holder's election with the Company's consent, the interest
accrued on the Note, (the date of giving of such notice of conversion
being a "Conversion Date") into fully paid and nonassessable shares of
common stock of Borrower as such stock exists on the date of issuance of
this Note, or any shares of capital stock of Borrower into which such
stock shall hereafter be changed or reclassified (the "Common Stock") at
the conversion price as defined in Section 2.1(b) hereof (the "Conversion
Price"), determined as provided herein. Upon delivery to the Company of
a Notice of Conversion as described in Section 9 of the subscription
agreement entered into between the Company and Holder relating to this
Note (the "Subscription Agreement") of the Holder's written request for
conversion, Borrower shall issue and deliver to the Holder within three
business days from the Conversion Date that number of shares of Common
Stock for the portion of the Note converted in accordance with the
foregoing. At the election of the Holder, the Company will deliver
accrued but unpaid interest on the Note through the Conversion Date
directly to the Holder on or before the Delivery Date (as defined in the
Subscription Agreement). The number of shares of Common Stock to be
issued upon each conversion of this Note shall be determined by dividing
that portion of the principal of the Note to be converted and interest,
if any, by the Conversion Price.
(b) Subject to adjustment as provided in Section 2.1(c)
hereof, the Conversion Price per share shall be the lower of (i) $____
("Maximum Base Price"); or (ii) eighty-five percent (85%) percent of the
average of the three lowest closing prices for the Common Stock on the
NASD OTC Bulletin Board, NASDAQ SmallCap Market, NASDAQ National Market
System, American Stock Exchange, or New York Stock Exchange (whichever of
the foregoing is at the time the principal trading exchange or market for
the Common Stock, the "Principal Market"),, or on any securities exchange
or other securities market on which the Common Stock is then being listed
or traded, for the thirty (30) trading days prior to but not including
the Conversion Date.
(c) The Maximum Base Price described in Section 2.1(b)(i)
above and number and kind of shares or other securities to be issued upon
conversion determined pursuant to Section 2.1(a) and 2.1(b), shall be
subject to adjustment from time to time upon the happening of certain
events while this conversion right remains outstanding, as follows:
-2-
X. Xxxxxx, Sale of Assets, etc. If the Borrower at any
time shall consolidate with or merge into or sell or convey all or
substantially all its assets to any other corporation, this Note, as to
the unpaid principal portion thereof and accrued interest thereon, shall
thereafter be deemed to evidence the right to purchase such number and
kind of shares or other securities and property as would have been
issuable or distributable on account of such consolidation, merger, sale
or conveyance, upon or with respect to the securities subject to the
conversion or purchase right immediately prior to such consolidation,
merger, sale or conveyance. The foregoing provision shall similarly
apply to successive transactions of a similar nature by any such
successor or purchaser. Without limiting the generality of the
foregoing, the anti-dilution provisions of this Section shall apply to
such securities of such successor or purchaser after any such
consolidation, merger, sale or conveyance.
B. Reclassification, etc. If the Borrower at any time
shall, by reclassification or otherwise, change the Common Stock into the
same or a different number of securities of any class or classes, this
Note, as to the unpaid principal portion thereof and accrued interest
thereon, shall thereafter be deemed to evidence the right to purchase an
adjusted number of such securities and kind of securities as would have
been issuable as the result of such change with respect to the Common
Stock immediately prior to such reclassification or other change.
C. Stock Splits, Combinations and Dividends. If the
shares of Common Stock are subdivided or combined into a greater or
smaller number of shares of Common Stock, or if a dividend is paid on the
Common Stock in shares of Common Stock, the Conversion Price shall be
proportionately reduced in case of subdivision of shares or stock
dividend or proportionately increased in the case of combination of
shares, in each such case by the ratio which the total number of shares
of Common Stock outstanding immediately after such event bears to the
total number of shares of Common Stock outstanding immediately prior to
such event.
D. Share Issuance. Subject to the provisions of this
Section, if the Borrower at any time shall issue any shares of Common
Stock prior to the conversion of the entire principal amount of the Note
(otherwise than as: (i) provided in Sections 2.1(c)A, 2.1(c)B or 2.1(c)C
or this subparagraph D; (ii) pursuant to options, warrants, or other
obligations to issue shares, outstanding on the date hereof as described
in the Reports and Other Written Information, as such terms are defined
in the Subscription Agreement (which agreement is incorporated herein by
this reference); or (iii) Excepted Issuances, as defined in Section 12 of
the Subscription Agreement; ((i), (ii) and (iii) above, are hereinafter
referred to as the "Existing Option Obligations") for a consideration
less than the Conversion Price that would be in effect at the time of
such issue, then, and thereafter successively upon each such issue, the
Conversion Price shall be reduced as follows: (i) the number of shares
of Common Stock outstanding immediately prior to such issue shall be
multiplied by the Conversion Price in effect at the time of such issue
and the product shall be added to the aggregate consideration, if any,
received by the Borrower upon such issue of additional shares of Common
Stock; and (ii) the sum so obtained shall be divided by the number of
shares of Common Stock outstanding immediately after such issue. The
resulting quotient shall be the adjusted conversion price. Except for
the Existing Option Obligations, for purposes of this adjustment, the
issuance of any security of the Borrower carrying the right to convert
such security into shares of Common Stock or of any warrant, right or
option to purchase Common Stock shall result in an adjustment to the
Conversion Price upon the issuance of shares of Common Stock upon
exercise of such conversion or purchase rights.
-3-
(d) During the period the conversion right exists, Borrower
will reserve from its authorized and unissued Common Stock a sufficient
number of shares to provide for the issuance of Common Stock upon the
full conversion of this Note. Borrower represents that upon issuance,
such shares will be duly and validly issued, fully paid and non-
assessable. Xxxxxxxx agrees that its issuance of this Note shall
constitute full authority to its officers, agents, and transfer agents
who are charged with the duty of executing and issuing stock certificates
to execute and issue the necessary certificates for shares of Common
Stock upon the conversion of this Note.
2.2 Method of Conversion. This Note may be converted by the
Holder in whole or in part as described in Section 2.1(a) hereof and the
Subscription Agreement. Upon partial conversion of this Note, a new Note
containing the same date and provisions of this Note shall, at the
request of the Holder, be issued by the Borrower to the Holder for the
principal balance of this Note and interest which shall not have been
converted or paid.
ARTICLE III
EVENT OF DEFAULT
The occurrence of any of the following events of default
("Event of Default") shall, at the option of the Holder hereof, make all
sums of principal and interest then remaining unpaid hereon and all other
amounts payable hereunder immediately due and payable, all without
demand, presentment or notice, or grace period, all of which hereby are
expressly waived, except as set forth below:
3.1 Failure to Pay Principal or Interest. The Borrower fails
to pay any installment of principal or interest hereon when due and such
failure continues for a period of ten (10) days after the due date. The
ten (10) day period described in this Section 3.1 is the same ten (10)
day period described in Section 1.1 hereof.
3.2 Breach of Covenant. The Borrower breaches any material
covenant or other term or condition of this Note or the Subscription
Agreement in any material respect and such breach, if subject to cure,
continues for a period of seven (7) days after written notice to the
Borrower from the Holder.
3.3 Breach of Representations and Warranties. Any material
representation or warranty of the Borrower made herein, in the
Subscription Agreement entered into by the Holder and Borrower in
connection with this Note, or in any agreement, statement or certificate
given in writing pursuant hereto or in connection therewith shall be
false or misleading in any material respect.
-4-
3.4 Receiver or Trustee. The Borrower shall make an
assignment for the benefit of creditors, or apply for or consent to the
appointment of a receiver or trustee for it or for a substantial part of
its property or business; or such a receiver or trustee shall otherwise
be appointed.
3.5 Judgments. Any money judgment, writ or similar final
process shall be entered or filed against Borrower or any of its property
or other assets for more than $100,000, and shall remain unvacated,
unbonded or unstayed for a period of forty-five (45) days.
3.6 Bankruptcy. Bankruptcy, insolvency, reorganization or
liquidation proceedings or other proceedings or relief under any
bankruptcy law or any law for the relief of debtors shall be instituted
by or against the Borrower and if instituted against Borrower are not
dismissed within 45 days of initiation.
3.7 Delisting. Delisting of the Common Stock from the OTC
Bulletin Board or delisting from such other principal exchange on which
the Common Stock is listed for trading; Borrower's failure to comply with
the requirements of the Principal Market for continued listing for a
period of three consecutive trading days; or notification from the
Principal Market that the Borrower is not in compliance with the
conditions for such continued listing.
3.8 Concession. A concession by the Borrower, after
applicable notice and cure periods, under any one or more obligations in
an aggregate monetary amount in excess of $100,000.
3.9 Stop Trade. An SEC stop trade order or Principal Market
trading suspension that lasts for five or more trading days.
3.10 Failure to Deliver Common Stock or Replacement Note.
Xxxxxxxx's failure to timely deliver Common Stock to the Holder pursuant
to and in the form required by this Note and Section 9 of the
Subscription Agreement, or if required a replacement Note.
3.11 Registration Default. The occurrence of a Non-
Registration Event as described in Section 10.4 of the Subscription
Agreement except that with respect to a Non-Registration Event in
connection with the required declared effectiveness of the Registration
Statement (as defined in the Subscription Agreement) on or before the
Effective Date (as defined in the Subscription Agreement) such Non-
Registration Event must be continuing on or occur after a date which is
one-hundred and twenty (120) days after the Closing Date (as defined in
the Subscription Agreement).
ARTICLE IV
MISCELLANEOUS
4.1 Failure or Indulgence Not Waiver. No failure or delay on
the part of Holder hereof in the exercise of any power, right or
privilege hereunder shall operate as a waiver thereof, nor shall any
single or partial exercise of any such power, right or privilege preclude
other or further exercise thereof or of any other right, power or
privilege. All rights and remedies existing hereunder are cumulative to,
and not exclusive of, any rights or remedies otherwise available.
-5-
4.2 Notices. Any notice herein required or permitted to be
given shall be in writing and may be personally served or sent by fax
transmission (with copy sent by regular, certified or registered mail or
by overnight courier). For the purposes hereof, the address and fax
number of the Holder is as set forth on the first page hereof. The
address and fax number of the Borrower shall be Science Dynamics
Corporation, 0000 Xxxxxxxxxx Xxxx, Xxxxxx Xxxx, XX 00000, telecopier
number: (000) 000-0000. Both Xxxxxx and Borrower may change the address
and fax number for service by service of notice to the other as herein
provided. Notice of Conversion shall be deemed given when made to the
Company pursuant to the Subscription Agreement.
4.3 Amendment Provision. The term "Note" and all reference
thereto, as used throughout this instrument, shall mean this instrument
as originally executed, or if later amended or supplemented, then as so
amended or supplemented.
4.4 Assignability. This Note shall be binding upon the
Borrower and its successors and assigns, and shall inure to the benefit
of the Holder and its successors and assigns, and may be assigned by the
Holder.
4.5 Cost of Collection. If default is made in the payment of
this Note, Borrower shall pay the Holder hereof reasonable costs of
collection, including reasonable attorneys' fees.
4.6 Governing Law. This Note shall be governed by and
construed in accordance with the laws of the State of New York. Any
action brought by either party against the other concerning the
transactions contemplated by this Agreement shall be brought only in the
state courts of New York or in the federal courts located in the state of
New York. Both parties and the individual signing this Agreement on
behalf of the Borrower agree to submit to the jurisdiction of such
courts. The prevailing party shall be entitled to recover from the other
party its reasonable attorney's fees and costs.
4.7 Maximum Payments. Nothing contained herein shall be
deemed to establish or require the payment of a rate of interest or other
charges in excess of the maximum permitted by applicable law. In the
event that the rate of interest required to be paid or other charges
hereunder exceed the maximum permitted by such law, any payments in
excess of such maximum shall be credited against amounts owed by the
Borrower to the Holder and thus refunded to the Borrower.
4.8 Prepayment. This Note may not be paid prior to the
Maturity Date or after the occurrence of an Event of Default without the
consent of the Holder except as set forth in Section 9.7 of the
Subscription Agreement.
4.9 Security Interest. The holder of this Note has been granted a
security interest in common stock of the Company more fully described in
a Security Agreement.
[THIS SPACE INTENTIONALLY LEFT BLANK]
-6-
IN WITNESS WHEREOF, Xxxxxxxx has caused this Note to be signed
in its name by its Chief Executive Officer on this ___ day of August, 2002.
SCIENCE DYNAMICS CORPORATION
By:________________________________
WITNESS:
_______________________________
-7-
NOTICE OF CONVERSION
--------------------
(To be executed by the Registered Holder in order to convert the Note)
The undersigned hereby elects to convert $_________ of the principal
and $_________ of the interest due on the Note issued by SCIENCE DYNAMICS
CORPORATION on August __, 2002 into Shares of Common Stock of SCIENCE
DYNAMICS CORPORATION (the "Company") according to the conditions set
forth in such Note, as of the date written below.
Date of
Conversion:_____________________________________________________________
Conversion
Price:__________________________________________________________________
Shares To Be
Delivered:______________________________________________________________
Signature:______________________________________________________________
Print
Name:___________________________________________________________________
Address:________________________________________________________________
________________________________________________________________
-8-
