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EXHIBIT 4.1(b)
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 VOICEFLASH NETWORKS, INC. THAT SUCH REGISTRATION IS NOT
REQUIRED.
CONVERTIBLE NOTE
FOR VALUE RECEIVED, VOICEFLASH NETWORKS, INC., a Florida
corporation (hereinafter called "Borrower"), hereby promises to pay to
XXXXXXXXXXX LIMITED PARTNERSHIP, c/o Canaccord Capital Corporation, 000 Xxx
Xxxxxx, Xxxxx 0000, Xxxxxxx, XX X0X 0X0, Xxxxxx, Fax: 000-000-0000 (the
"Holder") or order, without demand, the sum of Two Hundred and Twenty-Five
Thousand Dollars ($225,000.00), with simple interest accruing at the annual rate
of 7%, on August 6, 2004 (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 five (5)
day grace period to pay any monetary amounts due under this Note, after which
grace period a default interest rate of eighteen percent (18%) 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. Interest payable on this Note shall accrue
at the annual rate of seven percent (7%) and be payable upon each Conversion,
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.
ARTICLE II
CONVERSION RIGHTS
The Holder shall have the right to convert the principal
amount due under this Note into Shares of the Borrower's Common Stock as set
forth below.
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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, (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, by the Conversion Price. The Company may
elect to pay interest on Principal being converted by delivering Common Stock
valued at the Conversion Price applied to the Principal being converted but only
if such Common Stock is: (i) timely delivered; (ii) is included for unrestricted
resale in an effective registration statement described in Section 10.1(iv) of
the Subscription Agreement; (iii) no Event of Default has occurred or is
continuing; and (iv) receipt of such Common Stock by the holder would not exceed
the maximum conversion limitation amount described in Section 9.3 of the
Subscription Agreement.
(b) Subject to adjustment as provided in Section 2.1(c)
hereof, the Conversion Price per share shall be the lowest of (i) one dollar and
fifty cents ($1.50) ("Maximum Base Price"); (ii) eighty percent (80%) of the
average of the three (3) lowest closing bid prices for the Common Stock for the
thirty (30) trading days prior to but not including the Conversion Date on the
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 (iii) if not then trading on a Principal Market, seventy-five
percent (75%) of the average of the three (3) lowest closing bid prices for the
Common Stock for the thirty (30) trading days prior to but not including the
Conversion Date on such other principal market or exchange where the Common
Stock is listed or traded.
(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:
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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 11 of the Subscription Agreement; all
securities issuances pursuant to clauses (i), (ii) and (iii) above, are
hereinafter referred to as the "Excluded Issuances" for a consideration less
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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 Maximum Base Price.
Except for the Excluded Issuances, 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.
(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 five (5) days after the due date. The five (5) day
period described in this Section 3.1 is the same five (5) day period described
in Section 1.1 hereof.
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3.2 BREACH OF COVENANT. The Borrower breaches any material
covenant or other term or condition of this Note 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.
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
Principal Market, unless the Common Stock is listed for trading on the OTC
Bulletin Board within three trading days of such delisting; or delisting of the
Common Stock from the OTC Bulletin Board or such other principal exchange on
which the Common Stock is listed for trading; failure to comply with the
requirements of the Principal Market for continued listing and with the
requirements of the OTC Bulletin Board for initial listing for a period of three
consecutive trading days; or notification from the Principal Market or OTC
Bulletin Board that the Borrower is not in compliance with the conditions for
such continued listing and the Common Stock does not at the time of such
notification comply with the initial listing requirements of the OTC Bulletin
Board.
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.
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3.11 APPROVAL DEFAULT. The occurrence of an Approval Default
as described in Section 7(g) of the Subscription Agreement.
3.12 REGISTRATION DEFAULT. The occurrence of a
Non-Registration Event as described in Section 10.4 of 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.
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. A Conversion Notice shall be
deemed delivered on (i) the business day it is received by facsimile or
otherwise by the Borrower if such notice is received prior to 11:00 A.M. New
York time, or (ii) the immediately succeeding business day if it is received by
facsimile or otherwise after 11:00 A.M. New York time on a business day or at
any time on a day which is not a business day. The address and fax number of the
Borrower shall be Voiceflash Networks, Inc., 0000 Xxxxxxxx Xxxxxx, xxxxx 000,
Xxxx Xxxxx, 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.
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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. Except as set forth in the Subscription
Agreement, 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.
[THIS SPACE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, Xxxxxxxx has caused this Note to be signed in its
name by its Chief Executive Officer on this ____ day of August, 2001.
VOICEFLASH NETWORKS, INC.
By:
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WITNESS:
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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 VOICEFLASH NETWORKS,
INC. on August 6, 2001 into Shares of Common Stock of VOICEFLASH NETWORKS, INC.
(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:_______________________________________________________________________
_______________________________________________________________________________
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