Exhibit 4.11.2
THIS NOTE AND THE COMMON SHARES ISSUABLE UPON CONVERSION OF THIS NOTE HAVE NOT
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR ANY STATE
SECURITIES LAWS. 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
AND ANY APPLICABLE STATE SECURITIES LAWS OR AN OPINION OF COUNSEL REASONABLY
SATISFACTORY TO EPIXTAR CORP. THAT SUCH REGISTRATION IS NOT REQUIRED.
SECURED CONVERTIBLE TERM NOTE
FOR VALUE RECEIVED, EPIXTAR CORP., a Florida corporation (the
"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 or successors in interest, on order, the sum of Five Million
Dollars ($5,000,000), together with any accrued and unpaid interest hereon, on
May 14, 2007 (the "MATURITY DATE") if not sooner paid.
Capitalized terms used herein without definition shall have the
meanings ascribed to such terms in that certain Securities Purchase Agreement
dated as of the date hereof between the Borrower and the Holder (the "PURCHASE
AGREEMENT").
The following terms shall apply to this Note:
ARTICLE I
INTEREST & AMORTIZATION
1.1 Interest Rate. Subject to Sections 4.11 and 5.6 hereof, (x)
interest payable on the portion of the Principal Amount (as defined below) of
this Note not maintained in the Laurus Restricted Account shall accrue at a rate
per annum (the "Unrestricted Interest Rate") equal to the "prime rate" published
in The Wall Street Journal from time to time, plus two and one half percent
(2.50%) and (y) payable on the portion of the Principal Amount maintained in the
Laurus Restricted Account shall be equal to 1% per annum (the "Restricted
Interest Rate" and, together with the Unrestricted Interest Rate, the "Interest
Rate") until such time any portion of such amount maintained in the Laurus
Restricted Account is released for any reason (other than as a result of a
conversion of the Monthly Principal Amount into Common Stock in accordance with
Article II or III below) at which time such released portion shall bear interest
set forth in the foregoing clause (x) of this Section 1.1. The prime rate shall
be increased or decreased as the case may be for each increase or decrease in
the prime rate in an amount equal to such increase or decrease in the prime
rate; each change to be effective as of the day of the change in such rate. The
Interest Rate shall not be greater than eight percent (8.0%) per annum. Interest
shall be (i) calculated on the basis of a 360 day year and (ii) payable (x) in
the case of interest that accrues at the Unrestricted Interest Rate, monthly, in
arrears, commencing on June 1, 2004 and on the first business day of each
consecutive calendar month thereafter until the Maturity Date (and on the
Maturity Date), whether by acceleration or otherwise and (y) in the case of
interest that accrues at the Restricted Interest Rate, on the Maturity Date or,
in the event that all or any portion of the Principal Amount is released from
the Laurus Restricted Account prior to the Maturity Date, on the first business
day of the calendar month that occurs immediately following the release of the
related portion of the Principal Amount from the Laurus Restricted Account (the
preceding clauses (x) and (y), each, a "REPAYMENT DATE").
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1.2 Minimum Monthly Principal Payments. Amortizing payments of the
aggregate principal amount outstanding under this Note at any time (the
"PRINCIPAL AMOUNT") shall begin on October 1, 2004 and shall recur on the first
business day of each succeeding month thereafter until the Maturity Date (each,
an "AMORTIZATION DATE"). Subject to Article 3 below, beginning on the first
Amortization Date, the Borrower shall make monthly payments to the Holder on
each Repayment Date, each in the amount of $90,909.09 (the "MONTHLY PRINCIPAL
AMOUNT"), together with any accrued and unpaid interest to date on such portion
of the Principal Amount (as defined below) plus any and all other amounts which
are then owing under this Note, the Purchase Agreement or any other Related
Agreement but have not been paid (the Monthly Principal Amount, together with
such accrued and unpaid interest and such other amounts, collectively, the
"MONTHLY AMOUNT"). In addition, in the event that any funds are released from
the Laurus Restricted Account (as defined in the Laurus Restricted Account
Agreement) for any reason other than as a result of a conversion of the Monthly
Principal Amount into Common Stock in accordance with Article II or III below,
the amount of such release shall be applied in equal amounts to each future
Amortization Date occurring after the 90th day following such release. Any
Principal Amount that remains outstanding on the Maturity Date shall be due and
payable on the Maturity Date.
ARTICLE II
CONVERSION REPAYMENT
2.1 Payment of Monthly Amount in Cash or Common Stock. (a) Each month
by the fifth (5th) business day prior to each Amortization Date (the "NOTICE
DATE"), the Holder shall deliver to Borrower a written notice in the form of
Exhibit B attached hereto converting the Monthly Amount payable on the next
Amortization Date or Repayment Date, as the case may be, in either cash or
Common Stock, or a combination of both (each, a "REPAYMENT NOTICE"). If a
Repayment Notice is not delivered by the Holder on or before the applicable
Notice Date for such Amortization Date (or is not required to be delivered in
accordance with Section 2.1(b)), then the Borrower shall pay the Monthly Amount
due on such Amortization Date in cash. Any portion of the Monthly Amount paid in
cash on a Amortization Date or Repayment Date, as the case may be, shall be paid
to the Holder an amount equal to 102% of the principal portion of the Monthly
Amount due and owing to Holder on such Amortization Date or Repayment Date. If
the Holder converts all or a portion of the Monthly Amount in shares of Common
Stock as provided herein, the number of such shares to be issued by the Borrower
to the Holder on such Amortization Date or Repayment Date, as the case may be,
shall be the number determined by dividing (x) the portion of the Monthly Amount
to be paid in shares of Common Stock, by (y) the then applicable Fixed
Conversion Price. For purposes hereof, the initial "FIXED CONVERSION PRICE"
means $2.96.
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(b) Monthly Amount Conversion Guidelines. Subject to Sections 2.1(a),
2.2, and 3.2 hereof, the Holder shall convert all or a portion of the Monthly
Amount due on each Repayment Date in shares of Common Stock if the average
closing price of the Common Stock as reported by Bloomberg, L.P. on the
Principal Market for the five (5) trading days immediately preceding such
Repayment Date was greater than or equal to 110% of the Fixed Conversion Price,
provided, however, that such conversions shall not exceed twenty five percent
(25%) of the aggregate dollar trading volume of the Common Stock for the five
(5) day trading period immediately preceding delivery of a Notice of Conversion
to the Borrower. Any part of the Monthly Amount due on a Amortization Date or
Repayment Date, as the case may be, that the Holder has not converted into
shares of Common Stock shall be paid by the Borrower in cash on such
Amortization Date or Repayment Date. Any part of the Monthly Amount due on such
Amortization Date or Repayment Date which must be paid in cash (as a result of
the closing price of the Common Stock on one or more of the five (5) trading
days preceding the applicable Amortization Date or Repayment Date being less
than 110% of the Fixed Conversion Price) shall be paid in cash at the rate of
102% of the Monthly Amount otherwise due on such Amortization Date or Repayment
Date, within three (3) business days of the applicable Amortization Date or
Repayment Date.
2.2 No Effective Registration. Notwithstanding anything to the contrary
herein, none of the Borrower's obligations to the Holder may be converted into
Common Stock unless (i) either (x) an effective current Registration Statement
(as defined in the Registration Rights Agreement) covering the resale of the
shares of Common Stock to be issued in connection with satisfaction of such
obligations exists or (y) an exemption from registration of the Common Stock
(with respect to the resale of such Common Stock) is available to pursuant to
Rule 144 of the Securities Act and (ii) no Event of Default hereunder exists and
is continuing, unless such Event of Default is cured within any applicable cure
period or is otherwise waived in writing by the Holder in whole or in part at
the Holder's option.
2.3 Optional Redemption in Cash. The Borrower will have the option of
prepaying this Note ("OPTIONAL REDEMPTION") by paying to the Holder a sum of
money equal to one hundred thirty percent (130%) of the principal amount of this
Note together with accrued but unpaid interest thereon and any and all other
sums due, accrued or payable to the Holder arising under this Note, the Purchase
Agreement or any Related Agreement (the "REDEMPTION AMOUNT") outstanding on the
day written notice of redemption (the "NOTICE OF REDEMPTION") is given to the
Holder. The Notice of Redemption shall specify the date for such Optional
Redemption (the "REDEMPTION PAYMENT DATE") which date shall be seven (7)
business days after the date of the Notice of Redemption (the "REDEMPTION
PERIOD"). A Notice of Redemption shall not be effective with respect to any
portion of this Note for which the Holder has a pending election to convert
pursuant to Section 3.1, or for conversions initiated or made by the Holder
pursuant to Section 3.1 during the Redemption Period. The Redemption Amount
shall be determined as if such Xxxxxx's conversion elections had been completed
immediately prior to the date of the Notice of Redemption. On the Redemption
Payment Date, the Redemption Amount must be paid in good funds to the Holder. In
the event the Borrower fails to pay the Redemption Amount on the Redemption
Payment Date as set forth herein, then such Redemption Notice will be null and
void.
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ARTICLE III
CONVERSION RIGHTS
3.1. Holder's Conversion Rights. The Holder shall have the right, but
not the obligation, to convert all or any portion of the then aggregate
outstanding principal amount of this Note, together with interest and fees due
hereon, into shares of Common Stock subject to the terms and conditions set
forth in this Article III. The Holder may exercise such right by delivery to the
Borrower of a written notice of conversion not less than one (1) day prior to
the date upon which such conversion shall occur.
3.2 Conversion Limitation. Notwithstanding anything contained herein to
the contrary, the Holder shall not be entitled to convert pursuant to the terms
of this Note an amount that would be convertible into that number of Conversion
Shares which would exceed the difference between the number of shares of Common
Stock beneficially owned by such Holder or issuable upon exercise of warrants
held by such Holder and 4.99% of the outstanding shares of Common Stock of the
Borrower. For the purposes of the immediately preceding sentence, beneficial
ownership shall be determined in accordance with Section 13(d) of the Exchange
Act and Regulation 13d-3 thereunder. The Holder may void the Conversion Share
limitation described in this Section 3.2 upon 75 days prior notice to the
Borrower or without any notice requirement upon an Event of Default.
3.3 Mechanics of Xxxxxx's Conversion. (a) In the event that the Holder
elects to convert this Note into Common Stock, the Holder shall give notice of
such election by delivering an executed and completed notice of conversion
("NOTICE OF CONVERSION") to the Borrower and such Notice of Conversion shall
provide a breakdown in reasonable detail of the Principal Amount, accrued
interest and fees being converted. On each Conversion Date (as hereinafter
defined) and in accordance with its Notice of Conversion, the Holder shall make
the appropriate reduction to the Principal Amount, accrued interest and fees as
entered in its records and shall provide written notice thereof to the Borrower
within two (2) business days after the Conversion Date. Each date on which a
Notice of Conversion is delivered or telecopied to the Borrower in accordance
with the provisions hereof shall be deemed a Conversion Date (the "CONVERSION
DATE"). A form of Notice of Conversion to be employed by the Holder is annexed
hereto as Exhibit A.
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(b) Pursuant to the terms of the Notice of Conversion, the Borrower
will issue instructions to the transfer agent accompanied by an opinion of
counsel within one (1) business day of the date of the delivery to Borrower of
the Notice of Conversion and shall cause the transfer agent to transmit the
certificates representing the Conversion Shares to the Holder by crediting the
account of the Holder's designated broker with the Depository Trust Corporation
("DTC") through its Deposit Withdrawal Agent Commission ("DWAC") system within
three (3) business days after receipt by the Borrower of the Notice of
Conversion (the "DELIVERY DATE"). In the case of the exercise of the conversion
rights set forth herein the conversion privilege shall be deemed to have been
exercised and the Conversion Shares issuable upon such conversion shall be
deemed to have been issued upon the date of receipt by the Borrower of the
Notice of Conversion. The Holder shall be treated for all purposes as the record
holder of such Common Stock, unless the Holder provides the Borrower written
instructions to the contrary.
3.4 Conversion Mechanics.
(a) 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 and interest and fees to be converted, if any, by the then applicable
Fixed Conversion Price. In the event of any conversions of outstanding principal
amount under this Note in part pursuant to this Article III, such conversions
shall be deemed to constitute conversions of outstanding principal amount
applying to Monthly Amounts for the remaining Amortization Dates in
chronological order.
(b) The Fixed Conversion Price and number and kind of shares or other
securities to be issued upon conversion is subject to adjustment from time to
time upon the occurrence of certain events, as follows:
A. 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 Fixed Conversion Price or the Conversion Price, as the case may be,
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.
B. During the period the conversion right exists, the 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. The Borrower represents that upon issuance, such shares will be duly
and validly issued, fully paid and non-assessable. The Borrower 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.
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C. Share Issuances. Subject to the provisions of this Section 3.4, if
the Borrower shall at any time prior to the conversion or repayment in full of
the Principal Amount issue any shares of Common Stock or securities convertible
into Common Stock to a person other than the Holder (except (i) pursuant to
Subsections A or B above; (ii) pursuant to options, warrants, or other
obligations to issue shares outstanding on the date hereof as disclosed to
Holder in writing; or (iii) pursuant to options that may be issued under any
employee incentive stock option and/or any qualified stock option plan adopted
by the Borrower) for a consideration per share (the "Offer Price") less than the
Fixed Conversion Price in effect at the time of such issuance (an such issuance,
an "Offering"), then the Fixed Conversion Price shall be immediately reset to
such lower Offer Price at the time of issuance of such securities pursuant to
the formula below. For purposes hereof, the issuance of any security of the
Borrower convertible into or exercisable or exchangeable for Common Stock shall
result in an adjustment to the Fixed Conversion Price at the time of issuance of
such securities.
If the Borrower issues any additional shares pursuant to Section 3.4
above then, and thereafter successively upon each such issue, the Fixed
Conversion Price shall be adjusted by multiplying the then applicable Fixed
Conversion Price by the following fraction:
----------------------------------------
| |
| A + B |
----------------------------------------
| |
| (A + B) + [((C - D) x B) / C] |
----------------------------------------
A = Total amount of shares convertible pursuant to this Note, the
Purchase Agreement and the Related Agreements.
B = Actual shares sold in the Offering
C = Fixed Conversion Price
D = Offering price
D. 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 Amount 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.
3.5 Issuance of New Note. Upon any 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.
The Borrower will pay no costs, fees or any other consideration to the Holder
for the production and issuance of a new Note.
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ARTICLE IV
EVENTS OF DEFAULT
Upon the occurrence and continuance of an Event of Default beyond any
applicable grace period, the Holder may make all sums of principal, interest and
other fees then remaining unpaid hereon and all other amounts payable hereunder
immediately due and payable. In the event of such an acceleration, within five
(5) days after written notice from Holder to Borrower (each occurrence being a
"DEFAULT NOTICE PERIOD") the amount due and owing to the Holder shall be 110% of
the outstanding principal amount of the Note (plus accrued and unpaid interest
and fees, if any) (the "DEFAULT PAYMENT"). If, with respect to any Event of
Default, the Borrower cures the Event of Default, the Event of Default will be
deemed to no longer exist and any rights and remedies of Holder pertaining to
such Event of Default will be of no further force or effect. The Default Payment
shall be applied first to any fees due and payable to Holder pursuant to the
Note or the Related Agreements, then to accrued and unpaid interest due on the
Note and then to outstanding principal balance of the Note.
The occurrence of any of the following events set forth in Sections 4.1
through 4.12, inclusive, is an "EVENT OF DEFAULT":
4.1 Failure to Pay Principal, Interest or other Fees. The Borrower
fails to pay when due any installment of principal, interest or other fees
hereon in accordance herewith, or the Borrower fails to pay when due any amount
due under any other promissory note issued by Borrower, and in any such case,
such failure shall continue for a period of five (5) days following the date
upon which any such payment was due.
4.2 Breach of Covenant. The Borrower breaches any covenant or any other
term or condition of this Note or the Purchase Agreement in any material
respect, or the Borrower or any of its Subsidiaries breaches any covenant or any
other term or condition of any Related Agreement in any material respect and,
any such case, such breach, if subject to cure, continues for a period of thirty
(30) days after the occurrence thereof.
4.3 Breach of Representations and Warranties. Any representation or
warranty made by the Borrower in this Note or the Purchase Agreement, or by the
Borrower or any of its Subsidiaries in any Related Agreement, shall, in any such
case, be false or misleading in any material respect on the date that such
representation or warranty was made or deemed made.
4.4 Receiver or Trustee. The Borrower or any of its Subsidiaries 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.
4.5 Judgments. Any money judgment, writ or similar final process shall
be entered or filed against the Borrower or any of its Subsidiaries or any of
their respective property or other assets for more than $75,000, and shall
remain unvacated, unbonded or unstayed for a period of thirty (30) days.
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4.6 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 or any
of its Subsidiaries and if commenced against the Borrower or any such Subsidiary
shall not be dismissed within forty-five (45) days.
4.7 Stop Trade. An SEC stop trade order or Principal Market trading
suspension of the Common Stock shall be in effect for five (5) consecutive days
or five (5) days during a period of ten (10) consecutive days, excluding in all
cases a suspension of all trading on a Principal Market, provided that the
Borrower shall not have been able to cure such trading suspension within thirty
(30) days of the notice thereof or list the Common Stock on another Principal
Market within sixty (60) days of such notice. The "Principal Market" for the
Common Stock shall include 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, or any securities exchange or other
securities market on which the Common Stock is then being listed or traded.
4.8 Failure to Deliver Common Stock or Replacement Note. The Borrower
shall fail (i) to timely deliver Common Stock to the Holder pursuant to and in
the form required by this Note, and Section 9 of the Purchase Agreement, if such
failure to timely deliver Common Stock shall not be cured within two (2)
business days or (ii) to deliver a replacement Note to Holder within seven (7)
business days following the required date of such issuance pursuant to this
Note, the Purchase Agreement or any Related Agreement (to the extent required
under such agreements).
4.9 Default Under Related Agreements or Other Agreements. The
occurrence and continuance of any Event of Default (as defined in any Related
Agreement) or any event of default (or similar term) under any other
indebtedness.
4.10 Change in Control. The occurrence of a change in the controlling
ownership of the Borrower.
4.11 Federal Trade Commission Action. The Federal Trade Commission or
any other governmental agency shall commence any action against the Borrower or
any or its Subsidiaries, the effect of any such action, or any judgment, order
or settlement resulting therefrom, on the Borrower or any such Subsidiary is to
restrain or deprive the Borrower and its Subsidiaries from utilizing any
substantial portion of their assets determined on a consolidated basis.
4.12 Refinancing of Wedge Indebtedness. Any amount of indebtedness
shall remain outstanding under the Wedge Documents (including, without
limitation, principal, interest and fees associated with such indebtedness) on
or after June 4, 2004.
DEFAULT RELATED PROVISIONS
4.13 Payment Grace Period. Following the occurrence and continuance of
an Event of Default beyond any applicable cure period hereunder, the Borrower
shall pay the Holder a default interest rate of two percent (2%) per month on
all amounts due and owing under the Note, which default interest shall be
payable upon demand.
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4.14 Conversion Privileges. The conversion privileges set forth in
Article III shall remain in full force and effect immediately from the date
hereof and until this Note is paid in full.
4.15 Cumulative Remedies. The remedies under this Note shall be
cumulative.
ARTICLE V
MISCELLANEOUS
5.1 Failure or Indulgence Not Waiver. No failure or delay on the part
of the 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.
5.2 Notices. Any notice herein required or permitted to be given shall
be in writing and shall be deemed effectively given: (a) upon personal delivery
to the party notified, (b) when sent by confirmed telex or facsimile if sent
during normal business hours of the recipient, if not, then on the next business
day, (c) five days after having been sent by registered or certified mail,
return receipt requested, postage prepaid, or (d) one day after deposit with a
nationally recognized overnight courier, specifying next day delivery, with
written verification of receipt. All communications shall be sent to the
Borrower at the address provided in the Purchase Agreement executed in
connection herewith, and to the Holder at the address provided in the Purchase
Agreement for such Holder, with a copy to Xxxx X. Xxxxxx, Esq., 000 Xxxxx
Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, facsimile number (000) 000-0000,
or at such other address as the Borrower or the Holder may designate by ten days
advance written notice to the other parties hereto. A Notice of Conversion shall
be deemed given when made to the Borrower pursuant to the Purchase Agreement.
5.3 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, and any successor instrument issued pursuant to Section 3.5
hereof, as it may be amended or supplemented.
5.4 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 in accordance with the
requirements of the Purchase Agreement. This Note shall not be assigned by the
Borrower without the consent of the Holder.
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5.5 Governing Law. This Note shall be governed by and construed in
accordance with the laws of the State of New York, without regard to principles
of conflicts of laws. Except as set forth below in this Section 5.5, any and all
disputes, controversies and claims that the Borrower or any of its Subsidiaries
may assert against the Holder arising out of or relating to this Note, the
Purchase Agreement or any other Related Agreement shall be determined
exclusively by arbitration (each such arbitration, an "Arbitration") in New York
City before a panel of three neutral arbitrators agreed to by the Holder and the
Borrower (collectively, the "Arbitrators") in accordance with and pursuant to
the then existing commercial arbitration rules of the American Arbitration
Association. The Borrower (on its behalf and on behalf of its subsidiaries)
hereby irrevocably waives any right to assert such claims in any other forum.
The Arbitrators shall have the power in their discretion to award specific
performance or injunctive relief (but shall not have the power to render any
incidental, special or punitive damages) and reasonable attorneys' fees and
expenses to any party in any arbitration. The Arbitrators may not change, modify
or alter any express condition, term or provision of this Note, the Purchase
Agreement or of any other Related Agreement nor shall they have the power to
render any award against the Holder that would have such effect. Each
Arbitration award shall be final and binding upon the parties subject thereto
and judgment may be entered thereon in any court of competent jurisdiction. The
service of any notice, process, motion or other document in connection with an
Arbitration or for the enforcement of any Arbitration award may be made in the
same manner as communications may be given under Section 5.2 hereof.
Notwithstanding the foregoing, the provisions of this Section 5.5 nor any other
provision contained in this Note, the Purchase Agreement or in any other Related
Agreement shall limit in any manner whatsoever the Holder's right to commence an
action against or in connection with the Borrower, any of its Subsidiaries or
their respective properties in any court of competent jurisdiction or otherwise
utilize judicial process in connection with or arising out of the Holder's
rights and remedies under this Note, the Purchase Agreement and/or any Related
Agreement or otherwise (any such action, a "Court Action"). Court Actions may be
brought by the Holder in any state or federal court of competent jurisdiction
and the Borrower (on its behalf and on behalf of its Subsidiaries) irrevocably
submits to the jurisdiction of such state and federal courts and irrevocably
waives any claim or defense of inconvenient forum or lack of personal
jurisdiction in such forum or right of removal or right to jury trial under any
applicable law or decision or otherwise. Service of any notice, process, motion
or other document in connection with a Court Action may be made in the same
manner as communications may be given under Section 5.2. In addition, the Holder
may serve process in any other manner permitted under applicable law. The
prevailing party shall be entitled to recover from the other party its
reasonable attorney's fees and costs. In the event that any provision of this
Note is invalid or unenforceable under any applicable statute or rule of law,
then such provision shall be deemed inoperative to the extent that it may
conflict therewith and shall be deemed modified to conform with such statute or
rule of law. Any such provision which may prove invalid or unenforceable under
any law shall not affect the validity or unenforceability of any other provision
of this Note. Nothing contained herein shall be deemed or operate to preclude
the Holder from bringing suit or taking other legal action against the Borrower
in any other jurisdiction to collect on the Borrower's obligations to Holder, to
realize on any collateral or any other security for such obligations, or to
enforce a judgment or other court in favor of the Holder.
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5.6 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.
5.7 Security Interest and Guarantee. The Holder has been granted a
security interest (i) in certain assets of the Borrower and its Subsidiaries as
more fully described in the Master Security Agreement dated as of the date
hereof and (ii) pursuant to the Stock Pledge Agreement dated as of the date
hereof. The obligations of the Borrower under this Note are guaranteed by
certain Subsidiaries of the Borrower pursuant to the Subsidiary Guaranty dated
as of the date hereof.
5.8 Construction. 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.
5.9 Cost of Collection. If default is made in the payment of this Note,
the Borrower shall pay to Holder reasonable costs of collection, including
reasonable attorney's fees.
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IN WITNESS WHEREOF, the Borrower has caused this Convertible Term Note
to be signed in its name effective as of this 14th day of May, 2004.
EPIXTAR CORP.
By:__________________________________
Name:________________________________
Title:_______________________________
WITNESS:
-------------------------------
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EXHIBIT A
NOTICE OF CONVERSION
(To be executed by the Holder in order to convert all or part of the Note into
Common Stock
[Name and Address of Holder]
The Undersigned hereby converts $_________ of the principal due on [specify
applicable Repayment Date] under the Convertible Term Note issued by Epixtar
Corp. dated May 14, 2004 by delivery of Shares of Common Stock of Epixtar Corp.
on and subject to the conditions set forth in Article III of such Note.
1. Date of Conversion _______________________
2. Shares To Be Delivered: _______________________
By:_______________________________
Name:_____________________________
Title:____________________________
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EXHIBIT B
CONVERSION NOTICE
(To be executed by the Holder in order to convert all or part of a Monthly
Amount into Common Stock)
[Name and Address of Holder]
Holder hereby converts $_________ of the Monthly Amount due on [specify
applicable Repayment Date] under the Convertible Term Note issued by Epixtar
Corp. dated May 14, 2004 by delivery of Shares of Common Stock of Epixtar Corp.
on and subject to the conditions set forth in Article III of such Note.
1. Fixed Conversion Price: $_______________________
2. Amount to be paid: $_______________________
3. Shares To Be Delivered (2 divided by 1): ______________________
4. Cash payment to be made by Borrower: $_____________________
Date: ____________ LAURUS MASTER FUND, LTD.
By:________________________________
Name:______________________________
Title:_____________________________
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