Contract
EXHIBIT 10.2
THIS NOTE
HAS NOT BEEN REGISTERED WITH THE UNITED STATES SECURITIES AND EXCHANGE
COMMISSION OR THE SECURITIES COMMISSION OF ANY STATE OR UNDER THE SECURITIES ACT
OF 1933, AS AMENDED. THE NOTE MAY NOT BE OFFERED, RESOLD, PLEDGED OR TRANSFERRED
EXCEPT AS PERMITTED UNDER THE ACT PURSUANT TO REGISTRATION OR EXEMPTION OR SAFE
HARBOR THEREFROM.
| No. 1 |
US
$471,750
|
THIS
Note is one of a duly authorized issue of up to $1,000,000 of Sona Mobile
Holdings Corp, a corporation organized and existing under the laws of the State
of Delaware (the "Company") designated as its 8% Unsecured Notes.
FOR
VALUE RECEIVED, the Company promises to pay to Xxxxx Xxxxxxx and Xxxxxxxx Xxxx,
husband and wife, New York, New York, the registered holders hereof (the
“Holder”), the principal sum of Four Hundred Seventy One Thousand and Seven
Hundred and Fifty Dollars (US $471,750) with interest from the from the date of
initial issuance of this Note (the "Issue Date") at the rate of 8% per
annum. The entire indebtedness due pursuant to the Note shall be all
due and payable within ninety (90) days from the date of this Note ("Maturity
Date").
Accrual
of interest shall commence on the first such business day to occur after the
date hereof and shall continue until payment in full of the principal sum has
been made or duly provided for. The principal of, and interest on, this Note are
payable in such coin or currency of the United States of America as at the time
of payment is legal tender for payment of public and private debts, at the
address last appearing on the Note Register of the Company as designated in
writing by the Holder from time to time. The Company will pay the
principal of and interest upon this Note on the Maturity Date, less any amounts
required by law to be deducted, to the registered holder of this Note as of the
tenth day prior to the Maturity Date and addressed to such holder at the last
address appearing on the Note Register. The forwarding of such check shall
constitute a payment of principal and interest hereunder and shall satisfy and
discharge the liability for principal and interest on this Note to the extent of
the sum represented by such check plus any amounts so deducted.
This
Note is subject to the following additional provisions:
1. This
Note is exchangeable for an aggregate principal amount of Notes of different
authorized denominations, as requested by the Holder surrendering the same. No
service charge will be made for such registration or transfer or
exchange.
2. The
Company shall be entitled to withhold from all payments of principal of, and
interest on, this Note any amounts required to be withheld under the applicable
provisions of the
United
States income tax laws or other applicable laws at the time of such payments,
and Holder shall execute and deliver all required documentation in connection
therewith.
3. This
Note has been issued subject to investment representations of the original
purchaser hereof and may be transferred or exchanged only in compliance with the
Securities Act of 1933, as amended (the "Act"), and other applicable state and
foreign securities laws. In the event of any proposed transfer of this Note, the
Company may require, prior to issuance of a new Note in the name of such other
person, that it receive reasonable transfer documentation including legal
opinions that the issuance of the Note in such other name does not and will not
cause a violation of the Act or any applicable state or foreign securities laws.
Prior to due presentment for transfer of this Note, the Company and any agent of
the Company may treat the person in whose name this Note is duly registered on
the Company's Note Register as the owner hereof for the purpose of receiving
payment as herein provided and for all other purposes, whether or not this Note
be overdue, and neither the Company nor any such agent shall be affected by
notice to the contrary.
4. Subject
to the terms of the Bridge Loan Financing Agreement dated as of May 28, 2008
(the "Agreement"), between the Company and the Holder (or the Holder's
predecessor in interest), no provision of this Note shall alter or impair the
obligation of the Company, which is absolute and unconditional, to pay the
principal of, and interest on, this Note at the time, place, and rate, and in
the coin or currency, herein prescribed. This Note is a direct obligation of the
Company.
5. The
Company may, at its option, pay all or a portion of the outstanding principal
and accrued interest due pursuant to the Note at any time before maturity
without notice to the Holder and without penalty.
6. No
recourse shall be had for the payment of the principal of, or the interest on,
this Note, or for any claim based hereon, or otherwise in respect hereof,
against any incorporator, shareholder, officer or director, as such, past,
present or future, of the Company or any successor corporation, whether by
virtue of any constitution, statute or rule of law, or by the enforcement of any
assessment or penalty or otherwise, all such liability being, by the acceptance
hereof and as part of the consideration for the issue hereof, expressly waived
and released.
7.
The Holder of the Note, by acceptance hereof, agrees that this Note is being
acquired for investment and that such Holder will not offer, sell or otherwise
dispose of this Note except under circumstances which will not result in a
violation of the Act or any applicable state Blue Sky or foreign laws or similar
laws relating to the sale of securities.
8. This Note shall be governed by
and construed in accordance with the laws of the State of New York. Each of the
parties consents to the jurisdiction of the federal courts whose districts
encompass any part of the City of New York or the state courts of the State of
New York sitting in the City of New York in connection with any dispute arising
under this Agreement and hereby waives, to the maximum extent permitted by law,
any objection, including any objection based on forum non coveniens, to the
bringing of any such proceeding in such jurisdictions.
9.
The following shall constitute an "Event of Default":
a. The
Company shall default in the payment of principal or interest on this Note and
same shall continue for a period of five (5) days; or
b. Any
of the representations or warranties made by the Company herein, in the
Agreement, or in any certificate or financial or other written statements
heretofore or hereafter furnished by the Company in connection with the
execution and delivery of this Note or the Agreement shall be false or
misleading in any material respect at the time made; or
c. The
Company shall fail to perform or observe, in any material respect, any other
covenant, term, provision, condition, agreement or obligation of this Note (as
defined in the Agreement, which term includes this Note) and such failure shall
continue uncured for a period of thirty (30) days after written notice from the
Holder of such failure; or
d. The
Company shall fail to perform or observe, in any material respect, any covenant,
term, provision, condition, agreement or obligation of the Company under the
Agreement, and such failure shall continue uncured for a period of thirty (30)
days after written notice from the Holder of such failure; or
e. The
Company shall (1) admit in writing its inability to pay its debts generally as
they mature; (2) make an assignment for the benefit of creditors or commence
proceedings for its dissolution; or (3) apply for or consent to the appointment
of a trustee, liquidator or receiver for its or for a substantial part of its
property or business; or
f. A
trustee, liquidator or receiver shall be appointed for the Company or for a
substantial part of its property or business without its consent and shall not
be discharged within ninety (90) days after such appointment; or
g. Any
governmental agency or any court of competent jurisdiction at the instance of
any governmental agency shall assume custody or control of the whole or any
substantial portion of the properties or assets of the Company and shall not be
dismissed within ninety (90) days thereafter; or
h. Bankruptcy,
reorganization, insolvency or liquidation proceedings or other proceedings for
relief under any bankruptcy law or any law for the relief of debtors shall be
instituted by or against the Company and, if instituted against the Company,
shall not be dismissed within ninety (90) days after such institution or the
Company shall by any action or answer approve of, consent to, or acquiesce in
any such proceedings or admit the material allegations of, or default in
answering a petition filed in any such proceeding; or
i. The
Company shall have its Common Stock suspended or delisted from
an
exchange
or over-the-counter market from trading for in excess of two trading
days.
Then, or
at any time thereafter, and in each and every such case, unless such Event of
Default shall have been waived in writing by the Holder (which waiver shall not
be deemed to be a waiver of any subsequent default) at the option of the Holder
and in the Holder's sole discretion, the Holder may consider the Redemption
Amount of this Note immediately due and payable within five (5) days of notice,
without presentment, demand, protest or notice of any kinds, all of which are
hereby expressly waived, anything herein or in any note or other instruments
contained to the contrary notwithstanding, and the Holder may immediately
enforce any and all of the Holder's rights and remedies provided herein or any
other rights or remedies afforded by law.
10. Nothing
contained in this Note shall be construed as conferring upon the Holder the
right to vote or to receive dividends or to consent or receive notice as a
shareholder in respect of any meeting of shareholders or any rights whatsoever
as a shareholder of the Company, unless and to the extent converted in
accordance with the terms hereof.
11. The
obligation of the Company for payment of principal, interest and all other sums
hereunder is unsecured by the Company and subordinated to the 8.0% Senior
Unsecured Convertible Debentures (the “2007 Notes”) of the Company.
12. Subject
to the Act or any applicable state Blue Sky or foreign laws or similar laws
relating to the sale of securities, nothing contained in this Note shall
restrict the Holder from subsequently converting this Note into a subsequent
financing to be entered into between the Company and a third party.
Dated:
June 17, 2008
By: /s/ XXXXXXX
XXXXXXX
Name: Xxxxxxx Xxxxxxx
Title: Chief Financial
Officer
