NEITHER
THIS SECURITY NOR THE SECURITIES INTO WHICH THIS SECURITY IS CONVERTIBLE HAVE 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 MUST BE REASONABLY ACCEPTABLE TO THE COMPANY.
Original
Issue Date: December 31, 2014 |
|
|
Exchange
Date: March 10, 2017 |
|
$[
] |
2%
CONVERTIBLE NOTE
THIS
2% CONVERTIBLE NOTE is a duly authorized and validly issued 2% Convertible Note of Chanticleer Holdings, Inc., a Delaware corporation,
having its principal place of business at 0000 Xxxxxx Xxxxxx, Xxxxx 000, Xxxxxxxxx, Xxxxx Xxxxxxxx 00000 (the “Company”),
designated as its 2% Convertible Note (the “Note”).
FOR
VALUE RECEIVED, the Company promises to pay to _____________, (the “Holder”), or Holder’s assigns, the
principal sum __________ on or before March 10, 2019, unless the Holder exercises its early prepayment option as set forth in
Section 6(a) of this Note (the “Maturity Date”), to pay interest to the Holder on the aggregate unconverted
and then outstanding principal amount of this Note at the non-compounded rate of two percent (2%) per annum, payable quarterly
in arrears beginning on March 31, 2017 and continuing thereafter until the Maturity Date. Interest shall be calculated on the
basis of a 360- day year and shall accrue daily commencing on the Original Issue Date until payment in full of the principal sum,
together with all accrued and unpaid interest, and other amounts, which may become due hereunder, has been made. Interest hereunder
will be paid to the Person in whose name this Note is registered on the records of the Company regarding registration and transfers
of this Note (the “2017 Note Register”). On and after June 30, 2017, at the Company’s discretion, each
payment of principal and/or interest may be paid in cash or in kind at the Conversion Price (by an increase in the principal amount
payable equal to the interest due); provided, however a payment in kind may only be made if and to the extent that (A) there is
an effective registration statement permitting the resale of the Conversion Shares and Warrant Shares or (B) the Conversion Shares
and Warrant Shares are eligible for resale without volume or manner-of-sale limitations pursuant to Rule 144, with the Company
bearing all costs of the aforementioned sales (e.g., legal and transfer agent expenses). Interest shall cease to accrue with respect
to any principal amount converted or paid. This Note is being issued to the Holder pursuant to the terms and conditions of that
certain Exchange Agreement dated March 10, 2017 (the “Exchange Agreement”) and the Subscription Agreement
dated December 31, 2014 by and between the Company and the Holder (the “2014 Subscription Agreement”).
All terms not otherwise defined herein shall have the same meaning as in the Exchange Agreement and the 2014 Subscription Agreement.
This
Note is subject to the following additional provisions:
1. Definitions.
For the purposes hereof, in addition to the terms defined elsewhere in this Note , the following terms shall have the following
meanings:
“Bankruptcy
Event” means any of the following events: (a) the Company or any subsidiary commences a case or other proceeding under
any bankruptcy, reorganization, arrangement, adjustment of debt, relief of debtors, dissolution, insolvency or liquidation or
similar law of any jurisdiction relating to the Company or any subsidiary thereof; (b) there is commenced against the Company
or any subsidiary thereof any such case or proceeding that is not dismissed within 60 days after commencement; (c) the Company
or any subsidiary thereof is adjudicated insolvent or bankrupt or any order of relief or other order approving any such case or
proceeding is entered; (d) the Company or any subsidiary thereof suffers any appointment of any custodian or the like for it or
any substantial part of its property that is not discharged or stayed within 60 calendar days after such appointment; or (e) the
Company or any subsidiary thereof makes a general assignment for the benefit of creditors.
“Business
Day” means any day except Saturday, Sunday, any day which shall be a federal legal holiday in the United States or any
day on which banking institutions in the State of Delaware are authorized or required by law or other governmental action to close.
“Common
Stock” means the common stock, par value $0.0001 per share, of the Company.
“Common
Stock Equivalent” means any securities of the Company entitling the holder thereof to acquire at any time Common Stock,
including, without limitation, any debt, preferred stock, rights, options, warrants or other instrument that is at any time convertible
into or exercisable or exchangeable for, or otherwise entitles the holder thereof to receive, Common Stock.
“Conversion
Price” means $0.30 per share of Common Stock; provided, however, that in the event the Company (i) subdivides its outstanding
Common Stock into a greater number of shares, or (ii) combines its outstanding Common Stock into a lesser number of shares, or
(iii) increases or decreases the number of shares of outstanding Common Stock by reclassification of its Common Stock, then the
Conversion Price on the date of such division or distribution of the effective date of such action shall be adjusted by multiplying
the Conversion Price by a fraction, the numerator of which is the number of shares of Common Stock outstanding immediately before
such event and the denominator of which is the number of shares of Common Stock outstanding immediately after such event.
“Notice
of Conversion” means a notice in the form of Attachment A.
“Original
Issue Date” means the date of the first issuance of this Note, regardless of any transfers of this Note and regardless
of the number of instruments which may be issued to evidence such Note.
“Person”
means an individual or corporation, partnership, trust, incorporated or unincorporated association, joint venture, limited liability
company, joint stock company, government (or an agency or subdivision thereof) or other entity of any kind.
“SEC”
means U.S. Securities and Exchange Commission.
“Securities
Act” means the Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder.
“Trading
Day” means a day on which the principal market or exchange, on which the Common Stock is listed or quoted for trading,
is open (e.g. The Nasdaq Stock Market, the NYSE AMEX Equities Exchange, the New York Stock Exchange, the OTC Bulletin Board or
the OTC Markets, etc.).
“Trading
Price” means the closing bid price of the Common Stock on The Nasdaq Stock Exchange or if The Nasdaq Stock Exchange
is not the principal trading market for such security, the closing bid price of the Common Stock on the principal securities exchange
or trading market where the Company Stock is listed or traded or, if no closing bid price of the Common Stock is available in
any of the foregoing manners, the average of the closing bid prices of any market makers for the Common Stock on the OTC Markets.
(a) The
Holder shall have the right from time to time, and at any time during the period beginning on the date which is one hundred eighty
(180) days following the original issuance date (December 31, 2014) of this Note and ending on the later of: (i) the Maturity
Date and (ii) the date of payment of the Note, each in respect of the remaining outstanding principal amount of this Note plus
all accrued and unpaid interest to convert all or any part of the outstanding and unpaid principal amount of this Note into fully
paid and non- assessable shares of Common Stock, as such Common Stock exists on the Original Issuance Date, or any shares of capital
stock or other securities of the Company into which such Common Stock shall hereafter be changed or reclassified at the Conversion
Price. The number of shares of Common Stock to be issued upon each conversion of this Note shall be determined by dividing the
Conversion Amount (as defined below) by the applicable Conversion Price then in effect on the date specified in the notice of
conversion, in the form attached hereto as Exhibit A (the “Notice of Conversion”), delivered to the Company
by the Holder in accordance with this Note; provided that the Notice of Conversion is submitted by facsimile or e-mail (or by
other means resulting in, or reasonably expected to result in, notice) to the Company before 6:00 p.m., New York, New York time
on such conversion date (the “Conversion Date”). The term “Conversion Amount” means, with
respect to any conversion of this Note, the sum of (1) the principal amount of this Note to be converted in such conversion plus
(2) at the Holder’s option, accrued and unpaid interest, if any, on such principal amount at the interest rates provided
in this Note to the Conversion Date.
(b) Mechanism
to Effect Conversions. The Holder may convert this Note in whole or in part at any time and from time to time after the Original
Issuance Date by delivering to the Company, via e-mail or a nationally recognized overnight courier service, a fully completed
Notice of Conversion. To effect conversion(s) hereunder, the Holder shall not be required to physically surrender this Note to
the Company unless the entire principal amount of this Note, plus all accrued and unpaid interest thereon, has been so converted.
Conversion(s) hereunder shall have the effect of lowering the outstanding principal amount of this Note in an amount equal to
the applicable conversion(s). The Company shall maintain records showing the amount(s) converted and the date of such conversion(s).
The Holder, and any assignee by acceptance of this Note, acknowledge and agree that, by reason of the provisions of this paragraph,
following conversion of a portion of this Note , the unpaid and unconverted amount of this Note may be less than the amount stated
on the face hereof.
(c) Delivery
of Common Stock Upon Conversion. Upon receipt by the Company from the Holder of a facsimile transmission or e-mail (or other
reasonable means of communication) of a Notice of Conversion, the Company shall, at its sole expense, issue and deliver or cause
to be issued and delivered to or upon the order of the Holder certificates for the Common Stock issuable upon such conversion
within two (2) Business Days after such receipt (the “Deadline”) in accordance with the terms hereof and the Exchange
Agreement.
(d) Obligation
of Company to Deliver Common Stock. Upon receipt by the Company of a Notice of Conversion, the Holder shall be deemed to be
the holder of record of the Common Stock issuable upon such conversion, the outstanding principal amount and the amount of accrued
and unpaid interest on this Note shall be reduced to reflect such conversion, and, unless the Company defaults on its obligations
under this Section 2, all rights with respect to the portion of this Note being so converted shall forthwith terminate except
the right to receive the Common Stock or other securities, cash or other assets, as herein provided, on such conversion. If the
Holder shall have given a Notice of Conversion as provided herein, the Company’s obligation to issue and deliver the certificates
for Common Stock shall be absolute and unconditional, irrespective of the absence of any action by the Holder to enforce the same,
any waiver or consent with respect to any provision thereof, the recovery of any judgment against any person or any action to
enforce the same, any failure or delay in the enforcement of any other obligation of the Company to the holder of record, or any
setoff, counterclaim, recoupment, limitation or termination, or any breach or alleged breach by the Holder of any obligation to
the Company, and irrespective of any other circumstance which might otherwise limit such obligation of the Company to the Holder
in connection with such conversion.
(e) Delivery
of Common Stock by Electronic Transfer. In lieu of delivering physical certificates representing the Common Stock issuable
upon conversion, provided the Company is participating in the Depository Trust Company (“DTC”) Fast Automated
Securities Transfer (“FAST”) program, upon request of the Holder the Company shall use its best efforts to
cause its transfer agent to electronically transmit the Common Stock issuable upon conversion to the Holder by crediting the account
of Holder’s Prime Broker with DTC through its Deposit Withdrawal Agent Commission (“DWAC”) system.
(f) Failure
to Deliver Common Stock Prior to Deadline. Without in any way limiting the Holder’s right to pursue other remedies,
including actual damages and/or equitable relief, the parties agree that if delivery of the Common Stock issuable upon conversion
of this Note is not delivered by the Deadline, the Company shall pay to the Holder $2,000 per day in cash, for each day beyond
the Deadline that the Company fails to deliver such Common Stock. Such cash amount shall be paid to Holder by the fifth day of
the month following the month in which it has accrued or, at the option of the Holder (by written notice to the Company by the
first day of the month following the month in which it has accrued), shall be added to the principal amount of this Note and be
due on demand, in which event interest shall accrue thereon in accordance with the terms of this Note and such additional principal
amount shall be convertible into Common Stock in accordance with the terms of this Note. The Company agrees that the right to
convert is a valuable right to the Holder. The damages resulting from a failure, attempt to frustrate, interference with such
conversion right are difficult if not impossible to qualify. Accordingly the parties acknowledge that the liquidated damages provision
contained in this Section 2 are justified.
(g) Concerning
the Shares. The shares of Common Stock issuable upon conversion of this Note may not be sold or transferred unless (i) such
shares are sold pursuant to an effective registration statement under the Securities Act, or (ii) the Company or its transfer
agent shall have been furnished with an opinion of counsel (which opinion shall be in form, substance and scope customary for
opinions of counsel in comparable transactions) to the effect that the shares to be sold or transferred may be sold or transferred
pursuant to an exemption from such registration or (iii) such shares are sold or transferred pursuant to Rule 144 under the Securities
Act (or a successor rule) (“Rule 144”) or (iv) such shares are transferred to an “affiliate” (as
defined in Rule 144) of the Holder who agrees to sell or otherwise transfer the shares only in accordance with this Section 2
and who is an accredited investor. Until such time as the shares of Common Stock issuable upon conversion of this Note have been
registered under the Securities Act or otherwise may be sold pursuant to Rule 144 without any restriction as to the number of
securities as of a particular date that can then be immediately sold, each certificate for shares of Common Stock issuable upon
conversion of this Note that has not been so included in an effective registration statement or that has not been sold pursuant
to an effective registration statement or an exemption that permits removal of the legend, shall bear a legend substantially in
the following form, as appropriate:
“NEITHER
THE ISSUANCE AND SALE OF THE SECURITIES REPRESENTED BY THIS CERTIFICATE NOR THE SECURITIES INTO WHICH THESE SECURITIES ARE EXERCISABLE
HAVE BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR APPLICABLE STATE SECURITIES LAWS. THE SECURITIES MAY NOT
BE OFFERED FOR SALE, SOLD, TRANSFERRED OR ASSIGNED (I) IN THE ABSENCE OF (A) AN EFFECTIVE REGISTRATION STATEMENT FOR THE SECURITIES
UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR (B) AN OPINION OF COUNSEL (WHICH COUNSEL SHALL BE SELECTED BY THE HOLDER), IN
A GENERALLY ACCEPTABLE FORM, THAT REGISTRATION IS NOT REQUIRED UNDER SAID ACT OR (II) UNLESS SOLD PURSUANT TO RULE 144 OR RULE
144A UNDER SAID ACT. NOTWITHSTANDING THE FOREGOING, THE SECURITIES MAY BE PLEDGED IN CONNECTION WITH A BONA FIDE MARGIN ACCOUNT
OR OTHER LOAN OR FINANCING ARRANGEMENT SECURED BY THE SECURITIES.” |
The
legend set forth above shall be removed and the Company shall issue to the Holder a new certificate therefore free of any transfer
legend if (i) the Company or its transfer agent shall have received an opinion of counsel, in form, substance and scope customary
for opinions of counsel in comparable transactions, to the effect that a public sale or transfer of such Common Stock may be made
without registration under the Securities Act, which opinion shall be accepted by the Company so that the sale or transfer is
effected or (ii) in the case of the Common Stock issuable upon conversion of this Note, such security is registered for sale by
the Holder under an effective registration statement filed under the Securities Act or otherwise may be sold pursuant to Rule
144 without any restriction as to the number of securities as of a particular date that can then be immediately sold.
(h)
Reservation of Shares Issuable Upon Conversion. The Company covenants that it will at all times reserve and keep available
out of its authorized and unissued shares of Common Stock for the sole purpose of issuance under this Section 2, free from preemptive
rights or any other actual contingent purchase rights of Persons other than the Holder, not less than such aggregate number of
shares of the Common Stock as shall be issuable from time to time under this Section 2 (taking into account the adjustments of
Section 3). The Company covenants that all shares of Common Stock that shall be so issuable shall, upon issue, be duly authorized,
validly issued, fully paid and nonassessable.
(i) Fractional
Shares. Upon a conversion hereunder the Company shall not be required to issue stock certificates representing fractions of
shares of Common Stock, but may if otherwise permitted, issue, in lieu of the final fraction of a share, one (1) whole share of
Common Stock.
(j) Transfer
Taxes. The Company shall not be required to pay any tax that may be payable in respect of any transfer involved in the issuance
and delivery of any certificate(s) upon conversion in a name other than that of the Holder of this Note and the Company shall
not be required to issue or deliver such certificates unless or until the person or persons requesting the issuance thereof shall
have paid to the Company the amount of such tax or shall have established to the satisfaction of the Company that such tax has
been paid
(k) Limitations.
Notwithstanding anything to the contrary contained herein, the number of Conversion Shares that may be acquired by the Holder
upon exercise of this Note (or otherwise in respect hereof) shall be limited to the extent necessary to ensure that, following
such conversion (or other issuance), the total number of shares of Common Stock then beneficially owned by such Holder and its
affiliates and any other persons whose beneficial ownership of Common Stock would be aggregated with the Holder‘s for purposes
of Section 13(d) of the Securities and Exchange Act of 1934, as amended (the “Exchange Act”), does not exceed 4.99%
of the total number of issued and outstanding Common Stock (including for such purpose the shares of Common Stock issuable upon
such conversion). For such purposes, beneficial ownership shall be determined in accordance with Section 13(d) of the Exchange
Act and the rules and regulations promulgated thereunder. The Holder, upon not less than 61 days’ prior notice to the Company,
may increase or decrease the beneficial ownership limitations provision of this Section, provided that the beneficial ownership
limitation in no event exceeds 9.99% of the number of shares of the Common Stock outstanding immediately after giving effect to
the issuance of shares of Common Stock upon exercise of this Note held by the Holder and the provisions of this Section shall
continue to apply. Any such increase or decrease will not be effective until the 61st day after such notice is delivered to the
Company. The provisions of this paragraph shall be construed and implemented in a manner otherwise than in strict conformity with
the terms of this Section to correct this paragraph (or any portion hereof) which may be defective or inconsistent with the intended
beneficial ownership limitation herein contained or to make changes or supplements necessary or desirable to properly give effect
to such limitation. The limitations contained in this paragraph shall apply to a successor holder of this Note.
3.
Certain Adjustments.
(a) Adjustment
Due to Merger, Consolidation, Etc. If, at any time when all or any portion of this Note is outstanding, there shall be any
merger, consolidation, exchange of shares, recapitalization, reorganization, or other similar event, as a result of which shares
of Common Stock of the Company shall be changed into the same or a different number of shares of another class or classes of stock
or securities of the Company or another entity, or in case of any sale or conveyance of all or substantially all of the assets
of the Company other than in connection with a plan of complete liquidation of the Company, then the Holder of this Note shall
thereafter have the right to receive upon conversion of this Note, upon the basis and upon the terms and conditions specified
herein and in lieu of the shares of Common Stock immediately theretofore issuable upon conversion, such stock, securities or assets
which the Holder would have been entitled to receive in such transaction had this Note been converted in full immediately prior
to such transaction, and appropriate provisions shall be made with respect to the rights and interests of the Holder of this Note
to the end that the provisions hereof shall thereafter be applicable, as nearly as may be practicable in relation to any securities
or assets thereafter deliverable upon the conversion hereof. The Company shall not affect any transaction described in this Section
3(a) unless (a) it first gives, to the extent practicable, thirty (30) Business Days prior written notice (but in any event at
least fifteen (15) Business Days prior written notice) of the record date of the meeting of stockholders to approve, or if there
is no such record date, the consummation of, such merger, consolidation, exchange of shares, recapitalization, reorganization
or other similar event or sale of assets (during which time the Holder shall be entitled to convert this Note) and (b) the resulting
successor or acquiring entity (if not the Company) assumes by written instrument the obligations of this Section 3(a). These provisions
shall similarly apply to successive consolidations, mergers, sales, transfers or share exchanges.
(b) Adjustment
Due to Distribution. If the Company shall declare or make any distribution of its assets (or rights to acquire its assets)
to holders of Common Stock as a dividend, stock repurchase, by way of return of capital or otherwise (including any dividend or
distribution to the Company’s shareholders in cash or shares (or rights to acquire shares) of capital stock of a subsidiary
(i.e., a spin-off)) (a “Distribution”), then the Holder of this Note shall be entitled, upon any conversion
of this Note after the date of record for determining shareholders entitled to such Distribution, to receive the amount of such
assets which would have been payable to the Holder with respect to the shares of Common Stock issuable upon such conversion had
such Holder been the holder of such shares of Common Stock on the record date for the determination of shareholders entitled to
such Distribution.
(c) Notice
of Adjustment. While this Note is outstanding, should the Company propose to take any action set forth in Section 3, the Company
shall send to each Holder a notice of such proposed action or offer. Such notice shall be mailed to the Holders, and shall specify
the record date for the proposed event, shall briefly indicate the effect of the proposed event on the securities or property
issuable upon the conversion of the Note , and shall indicate the effect of the proposed event, if any, on the Conversion Price
(after giving effect to any adjustment pursuant to Section 2).
4. Events
of Default. “Event of Default” means, wherever used herein, any of the following events (whatever the reason
for such event and whether such event shall be voluntary or involuntary or effected by operation of law or pursuant to any judgment,
decree or order of any court, or any order, rule or regulation of any administrative or governmental body):
(a) The
Company fails to pay the principal hereof or interest thereon when due on this Note, whether at the Maturity Date, upon acceleration
or otherwise.
(b) The
Company (i) fails to issue shares of Common Stock to the Holder (or announces or threatens in writing that it will not honor its
obligation to do so) upon exercise by the Holder of the conversion rights of the Holder in accordance with the terms of this Note,
(ii) fails to transfer or cause its transfer agent to transfer (issue) (electronically or in certificated form) any certificate
for shares of Common Stock issued to the Holder upon conversion of or otherwise pursuant to this Note as and when required by
this Note, (iii) directs its transfer agent not to transfer or delays, impairs, and/or hinders its transfer agent in transferring
(or issuing) (electronically or in certificated form) any certificate for shares of Common Stock to be issued to the Holder upon
conversion of or otherwise pursuant to this Note as and when required by this Note, or (iv) fails to remove (or directs its transfer
agent not to remove or impairs, delays, and/or hinders its transfer agent from removing) any restrictive legend (or to withdraw
any stop transfer instructions in respect thereof) on any certificate for any shares of Common Stock issued to the Holder upon
conversion of or otherwise pursuant to this Note as and when required by this Note (or makes any written announcement, statement
or threat that it does not intend to honor the obligations described in this paragraph), and any such failure shall continue uncured
(or any written announcement, statement or threat not to honor its obligations shall not be rescinded in writing) for three (3)
Business Days after the Holder shall have delivered a Notice of Conversion.
(c) The
Company breaches any material covenant or other material term or condition contained in this Note and any collateral documents,
and such breach continues for a period of ten (10) days after written notice thereof to the Company from the Holder.
(d) Any
representation or warranty of the Company made herein or in any agreement, statement or certificate given in writing pursuant
hereto or in connection herewith (including, without limitation, the Exchange Agreement), shall be false or misleading in any
material respect when made and the breach of which has (or with the passage of time will have) a material adverse effect on the
rights of the Holder with respect to this Noteor the Exchange Agreement.
(e)
The Company shall be subject to a Bankruptcy Event.
5. Remedies
Upon Event of Default. If any Event of Default occurs, the outstanding principal amount of this Note plus accrued but unpaid
interest, shall become, at the Holder’s election, immediately due and payable in cash. Upon the occurrence and during the
continuation of an Event of Default (after the tolling of all applicable cure periods), the interest rate on this Note shall increase
to the lesser of twenty one percent (21%) per annum or the maximum rate permitted under applicable law (the “Default
Interest”). In connection with any acceleration described herein, the Holder need not provide, and the Company hereby
waives, any presentment, demand, protest or other notice of any kind, and the Holders may immediately and without expiration of
any grace period enforce any and all of its rights and remedies hereunder and all other remedies available to it under applicable
law. The Holder shall have all rights as a holder of the Note until such time, if any, as the Holder receives full pro rata payment
according to the original investment pursuant to this Section.
6.
Miscellaneous.
(a) Holder
Early Prepayment Option. Notwithstanding any provision contained herein to the contrary, at any time after the one (1) year
anniversary of the Exchange Date may, at its sole option, demand full repayment of the remaining outstanding principal amount
of this Note plus all accrued and unpaid interest upon thirty (30) days prior written notice to the Company.
(b) Prepayment.
The Company may prepay any amount outstanding under this Note without penalty upon ten (10) Business Days prior notice to the
Holder.
(c) Legal
Fees. In the event that Holder is required to take legal or other action to enforce its rights or obtain collection under
this Note, the Company shall pay the Holder hereof reasonable costs of collection, or enforcement of the terms hereof, including
reasonable attorneys’ fees.
(d) Assignability.
This Note shall be binding upon the Company and its successors and assigns, and shall inure to be the benefit of the Holder
and its successors and assigns. This Note is not assignable by the Company without the Holder’s prior written consent.
(e) Notices.
Any and all notices or other communications or deliveries to be provided by the Holders hereunder, including, without limitation,
any Notice of Conversion, shall be in writing and delivered personally, by facsimile, or sent by a nationally recognized overnight
courier service, addressed to the Company, at the address set forth above, facsimile number (000) 000-0000, Attn: Chief Executive
Officer or such other facsimile number or address as the Company may specify for such purpose by notice to the Holder delivered
in accordance with this Section. Any and all notices or other communications or deliveries to be provided by the Company hereunder
shall be in writing and delivered personally, by facsimile, or sent by a nationally recognized overnight courier service addressed
to each Holder at the facsimile number or address of such Xxxxxx appearing on the books of the Company, or if no such facsimile
number or address appears, at the principal place of business of the Holder. Any notice or other communication or deliveries hereunder
shall be deemed given and effective on the earliest of (i) the date immediately following the date of transmission, if such notice
or communication is delivered via facsimile at the facsimile number specified in this Section or by electronic mail, receipt confirmed
in each case, (ii) the second Business Day following the date of mailing, if sent by nationally recognized overnight courier service,
or (iii) upon actual receipt by the party to whom such notice is required to be given.
(f) Lost
or Mutilated Debenture. If this Note shall be mutilated, lost, stolen or destroyed, the Company shall execute and deliver,
in exchange and substitution for and upon cancellation of a mutilated Note, or in lieu of or in substitution for a lost, stolen
or destroyed Note, a new Note for the principal amount of this Note so mutilated, lost, stolen or destroyed, but only upon receipt
of evidence of such loss, theft or destruction of such Note, and of the ownership hereof, reasonably satisfactory to the Company.
(g) Governing
Law; Venue. This Note shall be governed by and construed in accordance with the domestic laws of the State of New York, without
giving effect to any choice or conflict of law provision or rule. The parties further: (i) agree that any legal suit, action or
proceeding arising out of or relating to this Note shall be instituted exclusively in any Federal or State court of competent
jurisdiction within the State of New York, County of New York, (ii) waive any objection that they may have now or hereafter to
the venue of any such suit, action or proceeding, and (iii) irrevocably consent to the in personam jurisdiction of any
Federal or State court of competent jurisdiction within the State of New York, County of New York in any such suit, action or
proceeding. The parties each further agree to accept and acknowledge service of any and all process which may be served in any
such suit, action or proceeding in a Federal or State court of competent jurisdiction within the State of New York, County of
New York, and that service of process upon the parties mailed by certified mail to their respective addresses shall be deemed
in every respect effective service of process upon the parties, in any action or proceeding.
(h) Construction
and Enforcement. Each party acknowledges that its legal counsel participated in the preparation of this Note and, therefore,
stipulates that the rule of construction that ambiguities are to be resolved against the drafting party shall not be applied in
the interpretation of this Note to favor any party against the other. This Note reflects an investment made by Holder or its assignor
to the Company. This Note is intended as, and shall be deemed an unconditional obligation of the Company for the payment of money
only and, without limitation to any other remedies of Holder (such as, without limitation, summary judgment after initiation of
a proceeding, or equitable remedies), shall be enforceable against the Company by summary proceeding pursuant to New York Civil
Procedure Law and Rules Section 3213 or any similar rule or statute in the jurisdiction where enforcement is sought.
(i) 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 (such as, without limitation, the usury laws), any payments in excess of such
maximum shall be credited against amounts owed by the Company to the Holder and thus refunded to the Company, or if no further
amounts are owed by the Company to the Holder, shall be refunded to the Company. The Company hereby irrevocable consents to the
reformation of this Note, as may be necessary by a court of law, so as to enable enforcement of this Note pursuant to summary
judgment or summary proceeding. For avoidance of doubt, in the event that, for any reason, a finding by a court having jurisdiction
over this Note is made that limits enforceability as a result of excessive interest or other origination or investment banking
fees pursuant to the laws of any jurisdiction, then, such defense shall not be deemed to bar a summary proceeding or summary judgment
on the Note but rather, the Note shall be fully and absolutely enforceable as to all principal and, the court having jurisdiction
shall, after an inquest, have power to reform the Note so as to reduce interest amount to such amount as is immediately enforceable
pursuant to summary judgment or summary proceeding and grant such award, plus any legal or enforcement fees of Holder(s).
(h) Waiver.
Any waiver by the Company or the Holder of a breach of any provision of this Note shall not operate as or be construed to be a
waiver of any other breach of such provision or of any breach of any other provision of this Note. The failure of the Company
or the Holder to insist upon strict adherence to any term of this Note on one or more occasions shall not be considered a waiver
or deprive that party of the right thereafter to insist upon strict adherence to that term or any other term of this Note. Any
waiver by the Company or the Holder must be in writing.
(i) Severability.
If any provision of this Note is invalid, illegal or unenforceable, the balance of this Note shall remain in effect, and if any
provision is inapplicable to any Person or circumstance, it shall nevertheless remain applicable to all other Persons and circumstances.
If it shall be found that any interest or other amount deemed interest due hereunder violates the applicable law governing usury,
the applicable rate of interest due hereunder shall automatically be lowered to equal the maximum rate of interest permitted under
applicable law.
(j) Next
Business Day. Whenever any payment or other obligation hereunder shall be due on a day other than a Business Day, such payment
shall be made on the next succeeding Business Day.
(k) Headings.
The headings contained herein are for convenience only, do not constitute a part of this Note and shall not be deemed to limit
or affect any of the provisions hereof.
[SIGNATURE
PAGE TO FOLLOW]
IN
WITNESS WHEREOF, the Company has caused this Note to be duly executed by a duly authorized officer as of the date first above
indicated
|
CHANTICLEER
HOLDINGS, INC |
|
|
|
|
Signature: |
|
|
Name: |
Xxxxxxx Xxxxxx |
|
Title: |
Chief
Executive Officer |
|
|
ACKNOWLEDGED
AND AGREED: |
|
|
|
|
By: |
|
|
Name: |
|
ATTACHMENT
A
NOTICE
OF CONVERSION
The
undersigned hereby elects to convert amounts outstanding under the 2% Convertible Note of Chanticleer Holdings, Inc., a Delaware
corporation (the “Company”), into shares of common stock, par value $0.0001 per share (the “Common
Stock”), of the Company according to the conditions hereof, as of the date written below. If shares of Common Stock
are to be issued in the name of a person other than the undersigned, the undersigned will pay all transfer taxes payable with
respect thereto and is delivering herewith such certificates and opinions as reasonably requested by the Company in accordance
therewith. No fee will be charged to the Holders for any conversion, except for such transfer taxes, if any.
Date
to Effect Conversion: ___________________________
(if
not date is set, conversion date shall be the date this notice is received) Amount of Debenture to
Amount
of Debenture to be Converted: $ ________________________________
|
Signature: |
|
|
Name: |
|
|
Address: |
|