BONDS.COM GROUP, INC. SECURED CONVERTIBLE PROMISSORY NOTE
Exhibit
10.2
NEITHER
THIS SECURITY NOR THE SECURITIES INTO WHICH THIS SECURITY IS CONVERTIBLE HAS
BEEN REGISTERED WITH THE SECURITIES AND EXCHANGE COMMISSION OR THE SECURITIES
COMMISSION OF ANY STATE IN RELIANCE UPON AN EXEMPTION FROM REGISTRATION UNDER
THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), AND, ACCORDINGLY,
MAY NOT BE OFFERED OR SOLD EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION
STATEMENT UNDER THE SECURITIES ACT OR PURSUANT TO AN AVAILABLE EXEMPTION FROM,
OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT AND IN ACCORDANCE WITH APPLICABLE STATE SECURITIES LAWS AS
EVIDENCED BY A LEGAL OPINION OF COUNSEL TO THE TRANSFEROR TO SUCH EFFECT, THE
SUBSTANCE OF WHICH SHALL BE REASONABLY ACCEPTABLE TO THE COMPANY.
XXXXX.XXX
GROUP, INC.
U.S.
$[ ]
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APRIL [ ],
2009
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THIS SECURED CONVERTIBLE PROMISSORY
NOTE (this “Note”) is made as of
the __ day of April 2009, by Xxxxx.xxx Group, Inc., a Delaware corporation (the
“Maker”), in favor of [_____________] or its
assigns (“Payee”).
WHEREAS, this Note is being issued pursuant to
and in connection with a Secured Convertible Note and Warrant Purchase Agreement
dated April __, 2009 (the “Purchase
Agreement”) among the
Maker, the Payee and certain other Purchasers set forth
therein.
NOW,
THEREFORE, for and in
consideration of the mutual agreements herein contained, and for and in
consideration of other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, Maker and Payee hereby covenant
and agree as set forth below.
FOR VALUE RECEIVED, Maker
hereby promises to pay to the order of Payee, the principal sum of
[_______________ DOLLARS ($________)], or such lesser amount as
may from time to time be otherwise owing from Maker to Payee under this Note,
together with interest on the principal amount from time to time outstanding
hereunder accrued from the date hereof at the rate and in the manner set forth
below. All payments of principal or interest or both shall be paid as
set forth below, and each such payment shall be made in lawful money of the
United States of America.
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This Note is subject to the following
terms and conditions:
(a) This
Note will bear interest at the rate of ten percent (10%) per year, from the date
hereof to and including the date of payment, exchange or conversion of this
Note. Interest on this Note shall be calculated on the basis of
actual days elapsed and a 360-day year of twelve 30-day months, compounded
annually.
(b) Interest
on this Note shall be due and payable on the earlier of (i) conversion of the
Notes by the Payee or (iii) the Maturity Date (each such date, an
“Interest Payment
Date”), except that if such date is not a business day then the Interest
Payment Date shall be
the next day that is a business day. Any accrued interest that is not otherwise
paid in cash or in shares of Common Stock on the applicable Interest Payment
Date (whether due to Maker’s inability to pay such interest in cash or in shares
of Common Stock) shall automatically, and without any action on the part of
Maker, accrue and be added to the outstanding principal and interest due under
the Note on such Interest Payment Date.
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(c) Interest
shall be paid in the same form (i.e. cash or share of Common Stock) as the form
in which the associated principal amount is paid.
4.
Events
of Default. The
following are “Events of
Default”
hereunder:
(a) any failure by Maker to pay when due all
or any principal or accrued interest hereunder;
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(b) any representation or warranty made by
or on behalf of Maker in this Purchase Agreement proves to have been incorrect,
false or misleading in any material respect on the date of which
made;
(c) any failure by Maker to perform any
covenant or agreement under this Note or any other agreement, document or
instrument contemplated hereby and such failure shall remain uncured for a
period of fifteen (15) days after receipt by Maker of written notice of such
failure from Payee;
(d) if Maker or any of its material
subsidiaries shall (i) apply for or consent to the appointment of a receiver,
trustee, custodian or liquidator or any of its property, (ii) admit in writing
its inability to pay its debts as they mature, (iii) make a general assignment
for the benefit of creditors, (iv) be adjudicated bankrupt or insolvent or be
the subject of an order for relief under Title 11 of the United States
Bankruptcy Code, (v) file a voluntary petition in bankruptcy or a petition for
bankruptcy, reorganization, insolvency, readjustment of debt, dissolution or
liquidation, or an answer admitting the material allegations of a petition filed
against it in any proceeding under any such law and such petition or proceeding
shall remain undismissed or unstayed for thirty (30) days, or (vi) take or
permit to be taken any action in furtherance of or for the purpose of effecting
any of the foregoing;
(e) any dissolution, liquidation or winding
up of Xxxxx.xxx. or any substantial portion of their
businesses;
(f)
any cessation of operations by
Xxxxx.xxx or Xxxxx.xxx is otherwise generally unable to pay its debts as such
debts become due;
(g) if a default with respect to payment of
indebtedness of $100,000 or more occurs under any other loan agreement, note or
other instrument or evidence of indebtedness of Maker and continues beyond any
applicable grace period therein provided; or
provided, however, that with respect to
any Event of Default (other than under Section
5(a) (with respect to
payment of principal), 5(d), or 5(e)), the Maker shall have ten (10)
business days to cure such Event of Default following the receipt of a written
notice of such Default from the Payee.
5.
Remedies
on Default. If
any Event of Default shall occur and be continuing, then the entire principal
and all accrued interest under this Note shall, at the option of Payee (except
in the case of an Event of Default under Section
5(d) or 5(e) above, in which event acceleration
shall be automatic), become immediately due and payable, without notice or
demand and such principal and accrued interest shall be paid by the Maker in
accordance with the provisions of Section 1(c) hereof.
6.
Certain
Waivers. Except
as otherwise expressly provided in this Note, Maker hereby waives diligence,
demand, presentment for payment, protest, dishonor, nonpayment, default and
notice of any and all of the foregoing.
7.
No
Impairment. Maker will not, by
amendment of its articles of incorporation, bylaws, or through reorganization,
consolidation, merger, dissolution, sale of assets, or
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another
voluntary action, avoid or seek to avoid the observance or performance of any of
the terms of this Note, but will at all times in good faith assist in the
carrying out of all such terms and in the taking of all such action as may be
necessary or appropriate in order to protect the rights of Payee against
impairment.
9. GOVERNING
LAW; JURISDICTION; WAIVER OF JURY TRIAL. THIS NOTE SHALL BE DEEMED
TO BE A CONTRACT MADE UNDER THE LAWS OF THE STATE OF FLORIDA AND SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF FLORIDA.
MAKER HEREBY IRREVOCABLY AND UNCONDITIONALLY SUBMITS, FOR ITSELF AND ITS
PROPERTY, TO THE NONEXCLUSIVE JURISDICTION OF THE FEDERAL AND STATE COURTS
LOCATED IN PALM BEACH COUNTY, FLORIDA, AND ANY APPELLATE COURT FROM ANY THEREOF,
IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS NOTE, OR FOR
RECOGNITION OR ENFORCEMENT OF ANY JUDGMENT, AND EACH OF THE PARTIES HERETO
HEREBY IRREVOCABLY AND UNCONDITIONALLY AGREES THAT ALL CLAIMS IN RESPECT OF ANY
SUCH ACTION OR PROCEEDING MAY BE HEARD AND DETERMINED IN SUCH STATE OF FLORIDA
OR, TO THE EXTENT PERMITTED BY LAW, IN SUCH FEDERAL COURT. NOTHING IN THIS NOTE
OR ANY OTHER LOAN DOCUMENT WILL AFFECT THE RIGHT OF ANY PARTY TO THIS NOTE TO
SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY LAW.
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IN WITNESS
WHEREOF, Maker has duly
caused this Note to be signed on its behalf, in its company name and by its duly
authorized officer as of the date first set forth above.
XXXXX.XXX GROUP,
INC.
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By.
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Name:
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Title:
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The
undersigned hereby irrevocably elects to exercise the right set forth in Section
3 of the Promissory Note of XXXXX.XXX GROUP, INC. dated as
of______________, 20___, to convert $ _______________ of principal due
under such Promissory Note (and all associated accrued interest) into shares of
Common Stock of XXXXX.XXX
GROUP, INC. at a Conversion Price of $0.375 per share, for an aggregate
total of ____________ shares of Common Stock.
Please
deliver the stock certificate to:
Dated:
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[Name
of Xxxxxx]
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By:
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