THIS NOTE,
AND THE SHARES OF COMMON STOCK ISSUABLE UPON CONVERSION OF THIS
NOTE (THE “ SECURITIES ”) HAVE BEEN ACQUIRED FOR
INVESTMENT PURPOSES ONLY AND MAY NOT BE TRANSFERRED UNTIL (i) A
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933, AS AMENDED
(THE “ ACT ”) SHALL HAVE BECOME EFFECTIVE WITH
RESPECT THERETO OR (ii) RECEIPT BY THE COMPANY OF AN OPINION OF
COUNSEL REASONABLY SATISFACTORY TO THE COMPANY TO THE EFFECT THAT
REGISTRATION UNDER THE ACT IS NOT REQUIRED IN CONNECTION WITH SUCH
PROPOSED TRANSFER NOR IS IN VIOLATION OF ANY APPLICABLE STATE
SECURITIES LAWS. THIS LEGEND SHALL BE ENDORSED UPON ANY NOTE ISSUED
IN EXCHANGE FOR THIS NOTE AND ANY SECURITIES ISSUABLE UPON
CONVERSION OF THIS NOTE (EXCEPT AS OTHERWISE PROVIDED
BELOW).
1ST AMENDED AND
RESTATED
CONVERTIBLE PROMISSORY
NOTE
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$172,653.00
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Effective September 23,
2008
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FOR VALUE RECEIVED, ACIES Corporation , a
Nevada Corporation (the “ Company ”),
having an address of 14 Wall Street, Suite 1620, New York,
NY 10005, hereby promises to pay to the order of
Pinnacle Three Corporation and/or assigns (the “
Holder ”), at the offices of Holder at 1445
Windjammer Way, Hollywood, FL 33160, or such other place
as may be designated by Holder to the Company in writing, the
aggregate principal amount of One Hundred and Seventy-Two
Thousand Six Hundred and Fifty Three Dollars ($172,653),
together with interest on the unpaid principal amount hereof, upon
the terms and conditions hereinafter set forth.
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Loan
Amount . This 1st Amended And Restated
Convertible Promissory Note (this “ Note
” or “ Promissory Note ”) evidences
the loan of One Hundred and Seventy-Two Thousand Six Hundred
and Fifty Three Dollars ($172,653), from the Holder to the
Company during the months of August and September 2008 (hereinafter
referred to as the “ Loan ” or the
“ Principal ”), and amends, replaces and
supersedes that certain Convertible Promissory Note entered into
between the Company and Holder on or around September 23,
2008. The effective date of this Note is September 23,
2008.
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Payment
Terms .
The Company promises to pay
to Holder the balance of Principal, together with accrued and
unpaid interest, on November 30, 2009 (the “
Maturity Date ”), unless this Note is earlier
prepaid as herein provided or earlier converted into Common Stock
(as hereinafter defined) of the Company pursuant to Section 3
hereof. All payments hereunder shall be made in lawful money
of the United States of America. Payment shall be credited
first to the accrued interest then due and payable and the
remainder to Principal.
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Interest . Interest on the outstanding portion
of Principal of this Note shall accrue at a rate of eighteen
percent (18%) per annum. All computations of interest shall
be made on the basis of a 360-day year for actual days
elapsed. Such interest shall accrue and be paid upon the
Maturity Date of the Loan.
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Notwithstanding
any provision in this Note, the total liability for payments of
interest and payments in the nature of interest, including all
charges, fees, exactions, or other sums which may at any time be
deemed to be interest, shall not exceed the limit imposed by the
usury laws of the State of Florida or the applicable laws of the
United States of America, whichever shall be higher (the “
Maximum Rate ”).
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In the event
the total liability for payments of interest and payments in the
nature of interest, including, without limitation, all charges,
fees, exactions or other sums which may at any time be deemed to be
interest, which for any month or other interest payment period
exceeds the Maximum Rate, all sums in excess of those lawfully
collectible as interest for the period in question (and without
further agreement or notice by, among or to the Holder the
undersigned) shall be applied to the reduction of the principal
balance, with the same force and effect as though the undersigned
had specifically designated such excess sums to be so applied to
the reduction of the principal balance and the Holder had agreed to
accept such sums as a premium-free prepayment of principal;
provided, however, that the Holder may, at any time and from time
to time, elect, by notice in writing to the undersigned, to waive,
reduce or limit the collection of any sums in excess of those
lawfully collectible as interest rather than accept such sums as a
prepayment of the principal balance. The undersigned
does not intend or expect to pay nor does the Holder intend or
expect to charge, accept or collect any interest under this Note
greater than the Maximum Rate.
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If any payment
of principal or interest on this Note shall become due on a
Saturday, Sunday or any other day on which national banks are not
open for business, such payment shall be made on the next
succeeding business day.
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Option to
Convert this Note .
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At any time
prior to the Maturity Date or prior to payment in full by the
Company, Holder shall have the option to convert the unpaid
principal balance of this Promissory Note, together with all
accrued interest, into shares of common stock (the “
Shares ” and the “ Common
Stock ”) of the Company (the “
Conversion Option ”) at the conversion price of
$0.02 per common share (the “ Conversion Price
”);
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In order to
exercise this Conversion Option, the Holder shall surrender this
Promissory Note to the Company, accompanied by written notice of
its intentions to exercise this Conversion Option, which notice
shall set forth the principal amount of this Promissory Note to be
converted and shall be in the form of Exhibit A, attached hereto
(“ Notice of Conversion ”). Within ten
(10) business days of the Company’s receipt of the Notice of
Conversion and this Note, the Company shall deliver or cause to be
delivered to the Holder, written confirmation that the Shares have
been issued in the name of the Holder;
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In the event of
the exercise of the Conversion Option, Holder shall cooperate with
the Company to promptly take any and all additional actions
required to make Holder a stockholder of the Company including,
without limitation, in connection with the issuance of the Shares,
such representations as to financial condition, investment intent
and sophisticated investor status as are reasonably required by
counsel for the Company. Holder recognizes that the Shares issued
upon conversion of this Note will constitute “
restricted securities ” under the
Securities Act of 1933, as amended, and the resale of which will be
subject to the limitations of such rules;
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The Company
shall at all times take any and all additional actions as are
necessary to maintain the required authority to issue the Shares to
the Holder, in the event the Holder exercises its rights under the
Conversion Option;
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Payment to
Company prior to Holder’s delivery of a Notice of Conversion
shall terminate Holder’s option to convert;
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Conversion
Calculations: No Fractional Shares. Conversion calculations pursuant to this Section
4 shall be rounded to the nearest whole share of Common Stock, and
no fractional shares shall be issuable by the Company upon
conversion of this Note. Conversion of this Note shall be deemed
payment in full of this Note and this Note shall thereupon be
cancelled;
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Anti-Dilution Protection.
If the Company at any time or from
time to time on or after the effective date of
the issuance of this Note (the “ Original
Issuance Date ”) effects a subdivision of its
outstanding Common Stock, the Conversion Price then in effect
immediately before that subdivision shall be proportionately
decreased, and conversely, if the Company at any time or from time
to time on or after the Original Issuance Date combines its
outstandi
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