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...
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.
THIS NOTE
DOES NOT REQUIRE PHYSICAL SURRENDER OF THE NOTE IN THE EVENT OF A PARTIAL
REDEMPTION OR CONVERSION. AS A RESULT, FOLLOWING ANY REDEMPTION OR CONVERSION OF
ANY PORTION OF THIS NOTE, THE OUTSTANDING PRINCIPAL AMOUNT REPRESENTED BY THIS
NOTE MAY BE LESS THAN THE PRINCIPAL AMOUNT AND ACCRUED INTEREST SET FORTH
BELOW.
10% SECURED
CONVERTIBLE NOTE DUE FEBRUARY 17, 2010
OF
ABAZIAS,
INC.
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Original
Principal Amount: $ 100,000
Issuance
Date: February __, 2009
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Gainesville,
Florida
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For Value
Received, ABAZIAS INC. a corporation duly organized and existing under the laws
of the State of Delaware (the “Corporation”),
hereby promises to pay to the order of OMNIRELIANT HOLDINGS, INC., or its
registered assigns or successors-in-interest (“Holder”)
the principal sum of up One Hundred Thousand Dollars (U.S. $100,000.00),
together with all accrued but unpaid interest thereon, no later than February
17, 2010 ( the “Maturity
Date”) to the extent such principal amount and interest has not been
repaid or converted into the Corporation’s Common Stock, par value $0.001 per
share (the “Common
Stock”), in accordance with the terms hereof.
Interest
on the unpaid and unconverted principal balance hereof shall accrue at the rate
of 10% per annum from the date of original issuance hereof (the “Issuance
Date”) until the same becomes due and payable on the Maturity Date, or
such earlier date upon acceleration or by conversion, redemption or repayment in
accordance with the terms hereof or of the other Agreements. Interest
on this Note shall accrue daily commencing on the Issuance Date and shall be
computed on the basis of a 360-day year, 30-day months and actual days elapsed
and shall be payable in accordance with Section 1 hereof. Unless
otherwise agreed or required by applicable law, payments will be applied first
to any unpaid collection costs, then to unpaid interest and fees and any
remaining amount to principal.
All
payments of principal and interest on this Note shall be made in lawful money of
the United States of America by wire transfer of immediately available funds to
such account as the Holder may from time to time designate by written notice in
accordance with the provisions of this Note or by company check. This
Note may not be prepaid in whole or in part except as otherwise provided
herein. Whenever any amount expressed to be due by the terms of this
Note is due on any day which is not a Business Day (as defined below), the same
shall instead be due on the next succeeding day which is a Business
Day.
For
purposes hereof the following terms shall have the meanings ascribed to them
below:
“Business
Day” shall mean any day other than a Saturday, Sunday or a day on which
commercial banks in the City of New York are authorized or required by law or
executive order to remain closed.
“Conversion
Price” shall equal the greater of (i) $0.50 or (ii) the closing bid price
of the Corporation’s shares of Common Stock on the date of the
Conversion.
1
“Convertible
Securities” means any convertible securities, warrants, options or other
rights to subscribe for or to purchase or exchange for, shares of Common
Stock.
“Exchange
Act” shall mean the Securities Exchange Act of 1934, as
amended.
“Per Share Selling
Price” shall include the amount actually paid by any Person for each
share of Common Stock in a sale or issuance by the Corporation. In
the event a fee is paid by the Corporation in connection with such transaction
directly or indirectly to such Person being sold or issued such securities or
its affiliates, any such fee shall be deducted from the selling price pro rata
to all shares sold in the transaction to arrive at the Per Share Selling
Price. A sale of shares of Common Stock shall include the sale or
issuance of rights, options, warrants or convertible, exchangeable or
exercisable securities under which the Corporation is or may become obligated to
issue shares of Common Stock, and in such circumstances the Per Share Selling
Price of the Common Stock covered thereby shall also include the exercise,
exchange or conversion price thereof (in addition to the consideration received
by the Corporation upon such sale or issuance less the fee amount as provided
above). In case of any such security issued in a Variable Rate
Transaction or an MFN Transaction, the Per Share Selling Price shall be deemed
to be the lowest conversion or exercise price at which such securities are
converted or exercised or might have been converted or exercised in the case of
a Variable Rate Transaction, or the lowest adjustment price in the case of an
MFN Transaction, over the life of such securities. If shares are issued for a
consideration other than cash, the Per Share Selling Price shall be the fair
value of such consideration as determined in good faith by independent certified
public accountants mutually acceptable to the Corporation and the
Purchaser.
“Principal
Amount” shall refer to the sum of (i) the original principal amount of
this Note, (ii) all accrued but unpaid interest hereunder, and (iii) any default
payments owing under the Agreements but not previously paid or added to the
Principal Amount.
“Principal
Market” shall mean the OTC Bulletin Board or such other principal market
or exchange on which the Common Stock is then listed for trading.
“Securities
Act” shall mean the Securities Act of 1933, as amended.
“Underlying
Shares” means the shares of Common Stock into which this Note are
convertible (including interest or principal payments in Common Stock as set
forth herein) in accordance with the terms hereof.
The
following terms and conditions shall apply to this Note:
Section
1. Interest
Payments. Subject to and in
accordance with the terms of this Section 1, on the ____ of each
month (the “Interest Payment Date”) during the term of this Note, the
Corporation shall pay to the Holder all interest accrued to date on the entire
outstanding principal amount of this Note (“Interest
Amount”). On such Interest Payment Date the Corporation shall
pay to the Holder an amount equal to such Interest Amount in satisfaction of
such obligation.
Section
2. Conversion.
(a) Voluntary Conversion
Right. Subject to the terms hereof and restrictions and
limitations contained herein, the Holder shall have the right, at such Holder’s
option, at any time and from time to time, to convert the outstanding Principal
Amount under this Note in whole or in part by delivering to the Corporation a
fully executed notice of conversion in the form of conversion notice attached
hereto as Exhibit
A (the “Conversion
Notice”), which may be transmitted by facsimile or electronic
transmission.
(b)
Common Stock
Issuance upon Conversion. The
Corporation will deliver to the Holder not later than two (2) Business Days
after the Conversion Date, a certificate or certificates representing the number
of shares of Common Stock being acquired upon the conversion of this
Note.
(c)
Conversion Price
Adjustments.
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(i)
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Reserved.
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2
(ii) Stock Dividends, Splits and
Combinations. If the Corporation or any of its subsidiaries,
at any time while this Note are outstanding (A) shall pay a stock dividend or
otherwise make a distribution or distributions on any equity securities
(including instruments or securities convertible into or exchangeable for such
equity securities) in shares of Common Stock, (B) subdivide outstanding Common
Stock into a larger number of shares, or (C) combine outstanding Common Stock
into a smaller number of shares, then the Conversion Price shall be multiplied
by a fraction, the numerator of which shall be the number of shares of Common
Stock outstanding before such event and the denominator of which shall be the
number of shares of Common Stock outstanding after such event. Any adjustment
made pursuant to this Section 2(c)(ii) shall become effective immediately after
the record date for the determination of stockholders entitled to receive such
dividend or distribution and shall become effective immediately after the
effective date in the case of a subdivision or combination.
(iii) Distributions. If the
Corporation or any of its subsidiaries, at any time while this Note are
outstanding, shall distribute to all holders of Common Stock evidences of its
indebtedness or assets or cash or rights or warrants to subscribe for or
purchase any security of the Corporation or any of its subsidiaries (excluding
those referred to in Section 2(c)(i) above), then concurrently with such
distributions to holders of Common Stock, the Corporation shall distribute to
holders of this Note the amount of such indebtedness, assets, cash or rights or
warrants which the holders of Notes would have received had all their Notes been
converted into Common Stock at the Conversion Price.
(iv) Common Stock
Issuances. For a period commencing on the date of the Note and
continuing at any time while the Note is outstanding, if the Corporation or any
of its subsidiaries (A) issues or sells any Common Stock or Convertible
Securities, or (B) directly or indirectly effectively reduces the conversion,
exercise or exchange price for any Convertible Securities which are currently
outstanding (other than pursuant to terms existing on the date hereof), at or to
an effective Per Share Selling Price (the “Lower Per Share Selling Price”) which
is less than the then applicable Conversion Price, then in each such case, the
Conversion Price in effect immediately prior to such issue or sale or record
date shall be automatically reduced effective concurrently with such issue or
sale to the Lower Per Share Selling Price (which figure shall be appropriately
and equitably adjusted as provided herein for stock splits, stock dividends, and
similar events).
The
foregoing provisions of this subsection shall not apply to issuances or sales of
(x) Common Stock upon conversion, exercise or exchange of Convertible Securities
outstanding on the issuance date hereof in accordance with the terms in effect
on such issuance date, (y) Common Stock or Convertible Securities under the
Corporation’s duly adopted stock option and bonus plans for employees and
directors, or (z) Common Stock or Convertible Securities issued in a
merger/acquisition transaction to which the Corporation is a
party. For the purposes of the foregoing adjustments, in the case of
the issuance of any Convertible Securities, the maximum number of shares of
Common Stock issuable upon exercise, exchange or conversion of such Convertible
Securities shall be deemed to be outstanding, provided that no further
adjustment shall be made upon the actual issuance of Common Stock upon exercise,
exchange or conversion of such Convertible Securities. For purposes of this
Section 2(c)(iv), if an event occurs that triggers more than one of the above
adjustment provisions, then only one adjustment shall be made and the
calculation method which yields the greatest downward adjustment in the affected
Conversion Price shall be used.
(v) Rounding of Adjustments. All
calculations under this Section 2 or Section 1 shall be made to 4 decimal places
for dollar amounts or the nearest 1/100th of a share, as the case may
be.
(vi) Notice of Adjustments.
Whenever any affected Conversion Price is adjusted pursuant to Section 2(c)(i),
(ii) or (iii) above, the Corporation shall promptly deliver to each holder of
this Note, a notice setting forth the affected Conversion Price after such
adjustment and setting forth a brief statement of the facts requiring such
adjustment, provided that any failure to so provide such notice shall not affect
the automatic adjustment hereunder.
(c)
Reservation and
Issuance of Underlying Securities. The Corporation covenants
that it will at all times reserve and keep available out of its authorized and
unissued Common Stock solely for the purpose of issuance upon conversion of this
Note (including repayments in stock), free from preemptive rights or any other
actual contingent purchase rights of persons other than the holders of this
Note, not less than such number of shares of Common Stock as shall be issuable
(taking into account the adjustments under this Section 2) upon the conversion
of this Note hereunder in Common Stock (including repayments in
stock). The Corporation covenants that all shares of Common Stock
that shall be so issuable shall, upon issue, be duly authorized, validly issued,
fully paid, nonassessable and freely tradable.
3
(d)
Cancellation. After
all of the Principal Amount (including accrued but unpaid interest and default
payments at any time owed on this Note) have been paid in full or converted into
Common Stock, this Note shall automatically be deemed canceled and the Holder
shall promptly surrender the Note to the Corporation at the Corporation’s
principal executive offices.
Section 3. Defaults
and Remedies.
(a)
Events of
Default. An “Event of Default” is: (i) a
default in payment of any amount due hereunder which default continues for more
than five (5) Business Days after the due date thereof; (ii) a default in the
timely issuance of Underlying Shares upon and in accordance with terms hereof,
which default continues for five (5) Business Days after the Corporation has
received written notice informing the Corporation that it has failed to issue
shares or deliver stock certificates within the fifth day following the
Conversion Date; (iii) failure by the Corporation for fifteen (15) days after
written notice has been received by the Corporation to comply with any material
provision of any of this Note, (including without limitation the failure to
issue the requisite number of shares of Common Stock upon conversion hereof; and
(iv) any default after any cure period under, or acceleration prior to maturity
of, any mortgage, indenture or instrument under which there may be issued or by
which there may be secured or evidenced any indebtedness for money borrowed by
the Corporation for in excess of $100,000 or for money borrowed the repayment of
which is guaranteed by the Corporation for in excess of $100,000, whether such
indebtedness or guarantee now exists or shall be created hereafter;
(b)
Remedies. If
an Event of Default occurs and is continuing with respect to any of this Note,
the Holder may declare all of the then outstanding Principal Amount of this Note
and all other Notes held by the Holder, including any interest due thereon, to
be due and payable immediately, except that in the case of an Event of Default
arising from events described in clauses (v) and (vi) of Section 4(a), this Note
shall become due and payable without further action or notice.
Section
4. Notice
Procedure.
All
notices and other communications under this Agreement shall be in writing and
shall be deemed given when delivered personally, mailed by certified mail,
return receipt requested, or via recognized overnight courier service with all
charges prepaid or billed to the account of the sender to the parties (and shall
also be transmitted by facsimile to the parties receiving copies thereof) at the
following addresses (or to such other address as a party may have specified by
notice given to the other party pursuant to this provision):
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(a)
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Holder:
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OmniReliant
Holdings, Inc.
00000
Xxxxxxxx Xxxxxx
Clearwater,
FL
Attention
Xxxx Xxxxxxxx
Copy
to:
Xxxxxx
Xxxxxx, Esq.
Xxxxxxxxx
Xxxx Xxxxxxxx Xxxxxxx LLP
00
Xxxxxxxx, 00xx
Floor
New York,
New York 10006
Phone: (000)
000-0000
Facsimile:
(000) 000-0000
4
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(b)
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Corporation:
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Abazias,
Inc.
0000 XX
00xx
Xxxxxxx, Xxxxx X
Gainesville,
FL 32608
Att:
Xxxxx Xxxxxxxxx
Section 5. General.
(a)
Payment of
Expenses. The Corporation agrees to pay all reasonable charges
and expenses, including attorneys’ fees and expenses, which may be incurred by
the Holder in successfully enforcing this Note and/or collecting any amount due
under this Note.
(b)
Amendment.
Neither this Note nor any term hereof may be amended, waived, discharged or
terminated other than by a written instrument signed by the Corporation and the
Holder.
(c)
Assignment,
Etc. The Holder may assign or transfer this Note to any
transferee only with the prior written consent of the Corporation, which may not
be unreasonably withheld or delayed, provided that (i) the Holder may assign or
transfer this Note to any of such Holder’s affiliates without the consent of the
Corporation and (ii) upon any Event of Default, the Holder may assign or
transfer this Note without the consent of the Corporation. The Holder
shall notify the Corporation of any such assignment or transfer promptly. This
Note shall be binding upon the Corporation and its successors and shall inure to
the benefit of the Holder and its successors and permitted assigns.
(d)
No
Waiver. No failure on the part of the Holder to exercise, and
no delay in exercising any right, remedy or power hereunder shall operate as a
waiver thereof, nor shall any single or partial exercise by the Holder of any
right, remedy or power hereunder preclude any other or future exercise of any
other right, remedy or power. Each and every right, remedy or power hereby
granted to the Holder or allowed it by law or other agreement shall be
cumulative and not exclusive of any other, and may be exercised by the Holder
from time to time.
(e)
Governing Law;
Jurisdiction. THIS NOTE WILL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF FLORIDA WITHOUT REGARD TO ANY CONFLICTS
OF LAWS PROVISIONS THEREOF THAT WOULD DEFER TO THE SUBSTANTIVE LAWS OF ANOTHER
JURISDICTION. The Corporation irrevocably submits to the exclusive
jurisdiction of any State or Federal Court sitting in the State of Florida,
County of Hillsborough, over any suit, action, or proceeding arising out of or
relating to this Note. The Corporation irrevocably waives, to the
fullest extent permitted by law, any objection which it may now or hereafter
have to the laying of the venue of any such suit, action, or proceeding brought
in such a court and any claim that suit, action, or proceeding has been brought
in an inconvenient forum. The Corporation agrees that the service of
process upon it mailed by certified or registered mail (and service so made
shall be deemed complete three days after the same has been posted as aforesaid)
or by personal service shall be deemed in every respect effective service of
process upon it in any such suit or proceeding. Nothing herein shall
affect Holder’s right to serve process in any other manner permitted by
law. The Corporation agrees that a final non-appealable judgment in
any such suit or proceeding shall be conclusive and may be enforced in other
jurisdictions by suit on such judgment or in any other lawful
manner.
(f)
Replacement
Notes. This Note may be exchanged by Holder at any time and
from time to time for a Note or Notes with different denominations representing
an equal aggregate outstanding Principal Amount, as reasonably requested by
Xxxxxx, upon surrendering the same. No service charge will be made for such
registration or exchange. In the event that Xxxxxx notifies the
Corporation that this Note has been lost, stolen or destroyed, a replacement
Note identical in all respects to the original Note (except for registration
number and Principal Amount, if different than that shown on the original Note),
shall be issued to the Holder, provided that the Holder executes and delivers to
the Corporation an agreement reasonably satisfactory to the Corporation to
indemnify the Corporation from any loss incurred by it in connection with the
Note.
5
IN WITNESS WHEREOF, the
Corporation has caused this Note to be duly executed on the day and in the year
first above written.
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ABAZIAS,
INC.
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By:
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/s/ Xxxxx Xxxxxxxxx | ||
| Xxxxx Xxxxxxxxx | |||
| Chief Executive Officer | |||
6
EXHIBIT
A
FORM
OF CONVERSION NOTICE
(To be executed by the
Holder in order to
convert a Note)
Re: 10%
Convertible Note (“Note”) issued by ABAZIAS,
INC. to OMNIRELIANT HOLDINGS, INC. in the original principal amount of
$100,000.00.
The
undersigned hereby elects to convert the aggregate outstanding Principal Amount
(as defined in the Note) indicated below of this Note into shares of Common
Stock, par value $0.001 per share (the “Common Stock”), of ABAZIAS,
INC. (the “Corporation”) according to
the conditions hereof, as of the date written below. If shares are to
be issued in the name of a person other than 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 Corporation in
accordance therewith.
No fee
will be charged to the holder for any conversion, except for such transfer
taxes, if any. The undersigned represents as of the date hereof that,
after giving effect to the conversion of this Note pursuant to this Conversion
Notice, the undersigned will not exceed the “Restricted Ownership
Percentage” contained in Section 2(i) of this
Note. Capitalized terms used herein and not otherwise defined shall
have the meaning ascribed thereto in the Note.
To the
extent the undersigned intends to sell the Underlying Shares issued to the
undersigned upon conversion of this Note pursuant to a Registration Statement,
the undersigned agrees to comply with all applicable prospectus delivery
requirements under the 1933 Act with respect to such sale.
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Conversion
information:
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Date
to Effect Conversion
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Aggregate
Principal Amount of Note Being Converted
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Number
of Shares of Common Stock to be Issued
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Applicable
Conversion Price
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Signature
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Address
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7
