200,000 September 26, 2006 SECURED CONVERTIBLE NOTE

 

$200,000 September 26, 2006 SECURED CONVERTIBLE NOTE

 

FOR VALUE RECEIVED, SECURED FINANCIAL NETWORK, INC. (the “Maker” or the “Company”), a Nevada corporation, having a place of business at 100 NE 3rd Ave., Suite 1500, Ft. Lauderdale, FL 33301, hereby promises to pay to the order of Melanie S. Altholtz Irrevocable Trust, Adam Altholtz, Trustee (the “Lender”), having its principal address at 1800 Second St., Suite 758, Sarasota, FL 34236, the sum of $200,000. This Secured Convertible Note (this “Note”) is issued to document loans, the proceeds of which are for use for general Company operations, $100,000 on September 26, 2006 and $100,000, due on October 26, 2006, from Lender to the Maker; provided that transmission of funds pursuant to the terms herein, shall not occur prior to 2 business days of the delivery of the Collateral to the Purchaser, and is subject to adherence to the business plan and milestone events. All capitalized terms used herein but not otherwise defined herein shall have the meanings ascribed to them in the Share Purchase Agreement.

 

1. Maturity. The amount outstanding under this Note will be due and payable at the address of Lender or such other place as Lender may designate on September 26, 2007 (the “Maturity Date”). No advances shall be made by Lender after the Maturity Date.

 

2. Payments of Interest. Interest on the borrowed outstanding principal balance under this Note shall be payable monthly, commencing on the first banking day of November 2006, and on the first business day of each month thereafter until the Debenture is no longer outstanding. Each monthly payment shall consist of all accrued but unpaid interest in the arrears.

 

3. Interest Rate. The outstanding principal balance of this Note shall bear interest at a rate per annum equal to 10.0% per annum, amortized monthly in arrears interest calculated on a 365-day basis

 

A. Alternate Methods of Payment: Subject to the conditions set forth below and customary equity conditions (including an effective registration statement), the Company may elect to make such payments of principal and interest under the Debenture, in freely tradable shares of the Company’s common stock. Each share of the of the Company’s Common stock will be valued at the Conversion Price (as defined in Section 5 below), as determined at the lesser of (1) on the day the Company gives notice, or (2) on the day the Company delivers the shares. The Company is required to notify Lender of its election to make such payment in shares at least ten days prior to the payment date. Notwithstanding anything herein to the contrary, the Company’s right to make such payment in shares in lieu of cash can only be made if the volume weighted average price of the Company’s common stock has been trading at a price of $0.25 or above per share for 10 consecutive days prior to the date of the payment date and the average daily trading volume is at least 15 times the number of shares to be so issued hereby as payment.

 

B. Pre-Payment Option: At any time, 90 days after funding is complete, but subject to customary equity conditions, the Company may at any time, upon 30 days written notice, prepay all of the outstanding Notes on a pro-rata basis at 110% of the outstanding principal balance only after the note has amortized 1 year. In the event that Maker sends a Prepayment Notice to Lender, Lender may elect prior to the Prepayment Date to convert into common stock of SECURED FINANCIAL NETWORK, INC. (“SECURED FINANCIAL NETWORK, INC.” Common Stock”) pursuant to Section 5 hereof, all or part of the amount of principal to be repaid by the proposed Prepayment instead of receiving such prepayment.

 

 

5. Optional/Mandatory Conversion. At any time, 90 days after funding is complete, but prior to repayment of all amounts due as provided under the Note, all or any portion of the principal amount of the Note shall be convertible at the option of the Lender into fully paid and non-assessable shares of SECURED FINANCIAL NETWORK, INC. Common Stock. The number of shares of SECURED FINANCIAL NETWORK, INC. Common Stock that Lender shall be entitled to receive upon conversion shall be equal to the number attained by dividing the principal, including accrued interest pursuant to the Note being converted by the Conversion Price. The “Conversion Price” shall be the lesser of $.10 per share, or one of the following times 60%:

 

A. In order to exercise the conversion privilege, Lender shall give written notice of conversion to Maker stating Lender’s election to convert this Note or the portion thereof in whole or in part, as specified in said notice. As promptly as practicable after receipt of the notice, Maker shall issue and shall deliver to Lender a certificate or certificates for the number of full shares of SECURED FINANCIAL NETWORK, INC. Common Stock issuable upon the conversion of this Note or portion thereof registered in the name of Lender in accordance with the provisions of this Section 5.

 

B. Each conversion shall be deemed to have been effected on the date the conversion notice shall have been received by Maker, as aforesaid, and Lender shall be deemed to have become on said date the holder of record of the shares of Common Stock issuable upon such conversion. No fractional shares of Common Stock shall be issued upon conversion of this Note. Any amounts so converted shall not be reborrowed.

 

C. The Lender shall not be entitled to convert, if such conversion would result in beneficial ownership by the Lender and its affiliates of more than 9.99% of the outstanding shares of common stock of the Company on such exercise or conversion date, including:

 

(i) the number of shares of common stock beneficially owned by the Lender and its affiliates, and

(ii) the number of shares of common stock issuable upon the exercise of the warrant and/or options and/or conversion.

 

For the purposes of this provision as set forth in the immediately preceding sentence, beneficial ownership shall be determined in accordance with Section 13(d) of the Securities Exchange Act of 1934, as amended, and Regulation 13d-3 thereunder. Subject to the foregoing, the Lender shall not be limited to aggregate warrant and/or option exercises and/or conversion of only 9.99% and aggregate warrant and/or option exercises and/or conversion by the Lender may exceed 9.99%. The Lender may void the exercise limitation described in this Section upon 61 days prior written notice to the Company. The Lender may allocate which of the equity of the Company deemed beneficially owned by the Lender shall be included in the 9.99% amount described above and which shall be allocated to the excess above 9.99%.

 

 

 

 

6. Security. As security for the repayment of all liabilities arising under this Note, the Maker hereby grants to Lender a security interest in and a lien on all of the Collateral (as that term is defined in the Pledge and Security Agreement). The Lender shall have all rights provided to a secured party under the Pledge and Security Agreement and under the Uniform Commercial Code of the State of Illinois. The Lender has the right to sell or hypothecate such Collateral, to the extent permitted under applicable securities laws. However, the Lender shall not sell more than 10% of the average daily volume in any week. Purchaser may not convert for a 90-day period from Closing. The Maker shall execute and deliver such documentation as Lender may reasonably request to evidence and perfect Lender’s security interest granted in this Section 6.

 

7. Use of Proceeds. The proceeds will be used principally for the VPS acquisition, BPS to bank Interface, Video text interface, Cell phone interface, Working Capital, $70,000 to defray current liabilities, and for general working capital purposes, but none of the investment proceeds will be used to repay obligations to any insider.

 

8. Covenants. Maker covenants and agrees that, so long as any indebtedness is outstanding hereunder, it will comply with each of the following covenants (except in any case where Lender has specifically consented otherwise in writing):

 

A. Financial Reporting. Maker shall furnish to Lender a copy of each financial report submitted on Form 10-K or 10-Q filed with the Securities and Exchange Commission within seven (7) days of such filing.

 

B. Notice of Event of Default. Maker shall furnish to Lender notice of the occurrence of any Event of Default (as defined herein) within five (5) days after it becomes known to an executive officer of Maker.

 

C. Financial Statements. Maker shall furnish to Lender quarterly financial statements, including balance sheets and statements of income, for the Company, which statements shall be annually audited, as soon as practicable after they are prepared for internal use.

 

D. Maker shall retain Brass Bulls Corp, 2855 N. University Drive #320, Coral Springs, FL 33065, as the Company’s consultant/IR/PR, for one year. Brass Bulls would also orchestrate press releases, communicate with investors, etc.

 

E. Maker shall generate a steady flow of accurate and newsworthy events, reasonably coordinated with Brass Bulls, Corp.

 

F. Acknowledgement of Investment Objectives. Maker acknowledges that two of the major reasons prompting Lender’s advance are the following:

 

 

Consequently, the Lender intends to avail itself of these contacts and facilities. The Maker shall work diligently with the Lender and Lender’s associates and portfolio companies, as reasonably requested by Lender, from time to time, in all synergistically related projects.

 

G. Favored Nations Clause. The Company will not raise more than $200,000 for up to ninety (90) days after the Closing without written consent of the Purchaser. If the Company raises money at a lower price than the Purchaser has purchased the shares, then the Company will re-price the Purchaser’s shares and warrants to that price. The Purchaser has the right of first refusal of any financing for eighteen (18) months after the Closing. The Purchaser will be notified prior to any other financing and have an option to respond with competitive financing terms upon notification. The Company will not raise any capital below 10 cents per share. Notwithstanding anything herein to the contrary, the Company will be allowed to raise additional capital to complete its $1.5 million contemplated fund-raising.

 

9. Event of Default. For purposes of this Note, the Maker shall be in default hereunder (and an “Event of Default” shall have occurred hereunder) if:

 

A. Maker shall fail to pay when due any payment of principal, interest, fees, costs, expenses or any other sum payable to Lender hereunder or otherwise;

 

B. Maker shall default in the performance of any other agreement or covenant contained herein (other than as provided in subparagraph A above), and such default shall continue uncured for twenty (20) days after notice thereof to Maker given by Lender, or if an Event of Default shall occur under any other Loan Document;

 

C. Maker becomes insolvent, bankrupt or generally fails to pay its debts as such debts become due; is adjudicated insolvent or bankrupt; admits in writing its inability to pay its debts; or shall suffer a custodian, receiver or trustee for it or substantially all of its property to be appointed and if appointed without its consent, not be discharged within thirty (30) days; makes an assignment for the benefit of creditors; or suffers proceedings under any law related to bankruptcy, insolvency, liquidation or the reorganization, readjustment or the release of debtors to be instituted against it and if contested by it not dismissed or stayed within ten (10) days; if proceedings under any law related to bankruptcy, insolvency, liquidation, or the reorganization, readjustment or the release of debtors is instituted or commenced by Maker; if any order for relief is entered relating to any of the foregoing proceedings; if Maker shall call a meeting of its creditors with a view to arranging a composition or adjustment of its debts; or if Maker shall by any act or failure to act indicate its consent to, approval of or acquiescence in any of the foregoing.

 

10. Consequences of Default. Upon the occurrence of an Event of Default and at any time thereafter, the entire unpaid principal balance of this Note, together with interest accrued thereon and with all other sums due or owed by Maker hereunder, shall become immediately due and payable. In addition, the principal balance and all past-due interest shall thereafter bear interest at the rate of 18% per annum until paid.

 

 

 

11. Registration

11.1. Registration Rights. The Maker hereby grants the following registration rights to Lender.

(i) The Maker shall prepare and file with the Commission a registration statement under the 1933 Act registering the Registrable Securities, as defined in Section 11.1(iii) hereof, which are the subject the September 26, 2006 Pledge and Security Agreement, and this Note for unrestricted public resale by the Lender thereof.

(ii) If the Maker at any time proposes to register any of its securities under the 1933 Act for sale to the public, whether for its own account or for the account of other security holders or both, except with respect to registration statements on Forms S-4, S-8 or another form not available for registering the Registrable Securities for sale to the public, provided the Registrable Securities are not otherwise registered for resale by the Subscribers or Holder pursuant to an effective registration statement, each such time it will give at least fifteen (15) days’ prior written notice to the record holder of the Registrable Securities of its intention so to do. Upon the written request of the Lender, received by the Maker within ten (10) days after the giving of any such notice by the Maker, to register any of the Registrable Securities not previously registered, the Maker will cause such Registrable Securities as to which registration shall have been so requested to be included with the securities to be covered by the registration statement proposed to be filed by the Maker, all to the extent required to permit the sale or other disposition of the Registrable Securities so registered by the holders of such Registrable Securities (the “Seller” or “Sellers”). In the event that any registration pursuant to this Section 11.1(ii) shall be, in whole or in part, an underwritten public offering of common stock of the Maker, the number of shares of Registrable Securities to be included in such an underwriting may be reduced by the managing underwriter if and to the extent that the Maker and the underwriter shall reasonably be of the opinion that such inclusion would adversely affect the marketing of the securities to be sold by the Maker therein; provided, however, that the Maker shall notify the Seller in writing of any such reduction. Notwithstanding the foregoing provisions, or Section 11.4 hereof, the Maker may withdraw or delay or suffer a delay of any registration statement referred to in this Section 11.1(ii) without thereby incurring any liability to the Seller.

(iii) The Maker shall file with the Commission a Form SB-2 registration statement (the “Registration Statement”) (or such other form that it is eligible to use) in order to register the Registrable Securities for resale and distribution under the 1933 Act within sixty- (60) calendar days after the Closing Date (the “Filing Date”), and use its best efforts to cause to be declared effective not later than one hundred and twenty (120) calendar days after the Closing Date (the “Effective Date”). The Maker will register not less than a number of shares of common stock in the aforedescribed registration statement that is equal to 175% of the Shares issuable upon conversion of all of the “Pledged Property” or “Collateral” as defined in the September 26, 2006 Pledge and Security Agreement, and 100% of the Warrant Shares issuable upon exercise of the Warrants (collectively the “Registrable Securities”). The Registrable Securities shall be reserved and set aside exclusively for the benefit of the Lender, and not issued, employed or reserved for anyone other than the Lender. The Registration Statement will immediately be amended or additional registration statements will be immediately filed by the Maker as necessary to register additional shares of Common Stock to allow the public resale of all Common Stock included in and issuable by virtue of the Registrable Securities. Except with the written consent of the Lender, or as described on Schedule 11.1 hereto, no securities of the Maker other than the Registrable Securities will be included in the Registration Statement. It shall be deemed a Non-Registration Event [as defined in Section 11.4] if, at any time after the date the Registration Statement is declared effective by the Commission (“Actual Effective Date”), the Maker has registered for unrestricted resale on behalf of the Sellers fewer than 125% of the amount of Common Shares issuable upon full conversion of all sums due hereunder and 100% of the Warrant Shares issuable upon exercise of the Warrants.

 

 

11.2. Registration Procedures. If and whenever the Maker is required by the provisions of Section 11.1(i), 11.1(ii), or (iii) to effect the registration of any Registrable Securities under the 1933 Act, the Maker will, as expeditiously as possible:

(a) subject to the timelines provided in this Agreement, prepare and file with the Commission a registration statement required by Section 11, with respect to such securities and use its commercially reasonable best efforts to cause such registration statement to become and remain effective for the period of the distribution contemplated thereby (determined as herein provided); promptly provide to the Lenders of the Registrable Securities copies of all filings and Commission letters of comment; notify Lender (by telecopier and/or by e-mail addresses provided by Lender) and Law Offices of Randall S. Goulding (by telecopier and/or by email to mbalson@gouldinglaw.com) on or before 6:00 PM EST on the first business day after the day that the Maker receives notice that the Commission has no comments or no further comments on the Registration Statement; and notify the Lender and their counsel in the same manner not later than the first Business Day after the Business Day a Registration Statement has been declared effective (or sooner than the first Business Day upon disclosure of this information to any person who is not an officer or director or legal counsel of the Maker). Failure to timely provide notice as required by this Section 11.2(a) shall be a material breach of the Maker’s obligation and an Event of Default as defined herein and a Non-Registration Event as defined in Section 11.4 of this Agreement;

(b) prepare and file with the Commission such amendments and supplements to such registration statement and the prospectus used in connection therewith as may be necessary to keep such registration statement effective until such registration statement has been effective for a period of two (2) years, and comply with the provisions of the 1933 Act with respect to the disposition of all of the Registrable Securities covered by such registration statement in accordance with the Sellers’ intended method of disposition set forth in such registration statement for such period;

(c) furnish to the Sellers, at the Maker’s expense, such number of copies of the registration statement and the prospectus included therein (including each preliminary prospectus) as such persons reasonably may request in order to facilitate the public sale or their disposition of the securities covered by such registration statement or make them electronically available;

(d) use its commercially reasonable efforts to register or qualify the Registrable Securities covered by such registration statement under the securities or “blue sky” laws of New York and such jurisdictions as the Sellers shall request in writing; provided, however, that the Maker shall not for any such purpose be required to qualify generally to transact business as a foreign entity in any jurisdiction where it is not so qualified or to consent to general service of process in any such jurisdiction;

(e) if applicable, list the Registrable Securities covered by such registration statement with any securities exchange on which the Common Stock of the Maker is then listed;

(f) notify the Lender within two hours of the Maker’s becoming aware that a prospectus relating thereto is required to be delivered under the 1933 Act, of the happening of any event of which the Maker has knowledge as a result of which the prospectus contained in such registration statement, as then in effect, includes an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein not misleading in light of the circumstances then existing or which becomes subject to a Commission, state or other governmental order suspending the effectiveness of the registration statement covering any of the Shares; and

 

 

(g) provided same would not be in violation of the provision of Regulation FD under the 1934 Act, make available for inspection by the Sellers, and any attorney, accountant or other agent retained by the Seller or underwriter, all publicly available, non-confidential financial and other records, pertinent corporate documents and properties of the Maker, and cause the Maker’s officers, directors and employees to supply all publicly available, non-confidential information reasonably requested by the seller, attorney, accountant or agent in connection with such registration statement.

11.3. Provision of Documents. In connection with each registration described in this Section 11, each Seller will furnish to the Maker in writing such information and representation letters with respect to itself and the proposed distribution by it as reasonably shall be necessary in order to assure compliance with federal and applicable state securities laws, including, but not limited to, a written confirmation that the Seller may be deemed to be an “underwriter” under the federal securities laws for purposes of such Seller’s resale and distribution of such Seller’s Registrable Securities.

11.4. Non-Registration Events. The Maker and the Lender agree that the Sellers will suffer damages if the Registration Statement is not filed by the Filing Date and not declared effective by the Commission by the Effective Date, and any registration statement required under Section 11.1(i) or 11.1(ii) is not filed within 45 days after Closing and declared effective by the Commission within 90 days after Closing, and maintained in the manner and within the time periods contemplated by Section 11 hereof, and it would not be feasible to ascertain the extent of such damages with precision. Accordingly, if (A) the Registration Statement is not filed on or before the Filing Date, (B) is not declared effective on or before the Effective Date, (C) due to the action or inaction of the Maker, the Registration Statement is not declared effective within 3 business days after receipt by the Maker or its attorneys of a written or oral communication from the Commission that the Registration Statement will not be reviewed or that the Commission has no further comments, (D) if the registration statement described in Sections 11.1(i) or 11.1(ii) is not filed within 60 days after written request of the Lender, or is not declared effective within 120 days after such written request, or (E) any registration statement described in Sections 11.1(i), 11.1(ii) or 11.1(iii) is filed and declared effective but shall thereafter cease to be effective without being succeeded within 15 business days by an effective replacement or amended registration statement or for a period of time which shall exceed 30 days in the aggregate per year (defined as a period of 365 days commencing on the Actual Effective Date (each such event referred to in clauses (A) through (E) of this Section 11.4 is referred to herein as a “Non-Registration Event”), then the Maker shall deliver to the Lender of Registrable Securities, as liquidated damages (“Liquidated Damages”), an amount equal to 5% for each 30 days or part thereof of the face amount hereof. Liquidated Damages payable in connection with a Non-Registration Event described in clause (B) above shall accrue from the 180^th calendar day after the Closing Date. The Maker must pay the Liquidated Damages in cash, except that the Lender may elect that such Liquidated Damages to be paid with shares of Common Stock with such shares valued at sixty percent (60%) of the Conversion Price in effect on each thirtieth day or sooner date upon which Liquidated Damages have accrued. The Liquidated Damages must be paid within 10 days after the end of each thirty (30) day period or shorter part thereof for which Liquidated Damages are payable. In the event a Registration Statement is filed by the Filing Date but is withdrawn prior to being declared effective by the Commission, then such Registration Statement will be deemed to have not been filed. All oral or written comments received from the Commission relating to the Registration Statement must be adequately responded to within 30 days in connection with the initial filing of the Registration Statement and within 10 business days in connection with amendments to the Registration Statement after receipt of such comments from the Commission. Failure to timely respond to Commission comments is a Non-Registration Event for which Liquidated Damages shall accrue and be payable by the Maker to the Lenders of Registrable Securities at the same rate set forth above. Notwithstanding the foregoing, the Maker shall not be liable to the Lender under this Section 11.4 for any events or delays occurring as a consequence of the acts or omissions of the Lender contrary to the obligations undertaken by Lender in this Agreement. Liquidated Damages will neither accrue nor be payable pursuant to this Section 11.4 nor will a Non-Registration Event be deemed to have occurred for times during which Registrable Securities are transferable by the Lender of Registrable Securities pursuant to Rule 144(k) under the 1933 Act.

 

 

11.5. Expenses. All expenses incurred by the Maker in complying with Section 11, including, without limitation, all registration and filing fees, printing expenses (if required), fees and disbursements of counsel and independent public accountants for the Maker, fees and expenses (including reasonable counsel fees) incurred in connection with complying with state securities or “blue sky” laws, fees of the National Association of Securities Dealers, Inc., transfer taxes, and fees of transfer agents and registrars, are called “Registration Expenses.” All underwriting discounts and selling commissions applicable to the sale of Registrable Securities are called “Selling Expenses.” The Maker will pay all Registration Expenses in connection with the registration statement under Section 11. Selling Expenses in connection with each registration statement under Section 11 shall be borne by the Seller and may be apportioned among the Sellers in proportion to the number of shares sold by the Seller relative to the number of shares sold under such registration statement or as all Sellers thereunder may agree.

11.6. Indemnification and Contribution.

(a) In the event of a registration of any Registrable Securities under the 1933 Act pursuant to Section 11, the Maker will, to the extent permitted by law, indemnify and hold harmless the Seller, each officer of the Seller, each director of the Seller, each underwriter of such Registrable Securities thereunder and each other person, if any, who controls such Seller or underwriter within the meaning of the 1933 Act, against any losses, claims, damages or liabilities, joint or several, to which the Seller, or such underwriter or controlling person may become subject under the 1933 Act or otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in any registration statement under which such Registrable Securities was registered under the 1933 Act pursuant to Section 11, any preliminary prospectus or final prospectus contained therein, or any amendment or supplement thereof, or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading in light of the circumstances when made, and will, subject to the provisions of Section 11.6(c), reimburse the Seller, each such underwriter and each such controlling person for any legal or other expenses reasonably incurred by them in connection with investigating or defending any such loss, claim, damage, liability or action; provided, however, that the Maker shall not be liable to the Seller to the extent that any such damages arise out of or are based upon an untrue statement or omission made in any preliminary prospectus if (i) the Seller failed to send or deliver a copy of the final prospectus delivered by the Maker to the Seller with or prior to the delivery of written confirmation of the sale by the Seller to the person asserting the claim from which such damages arise, (ii) the final prospectus would have corrected such untrue statement or alleged untrue statement or such omission or alleged omission, or (iii) to the extent that any such loss, claim, damage or liability arises out of or is based upon an untrue statement or alleged untrue statement or omission or alleged omission so made in conformity with information furnished by any such Seller, or any such controlling person in writing specifically for use in such registration statement or prospectus.

 

 

(b) In the event of a registration of any of the Registrable Securities under the 1933 Act pursuant to Section 11, each Seller severally but not jointly will, to the extent permitted by law, indemnify and hold harmless the Maker, and each person, if any, who controls the Maker within the meaning of the 1933 Act, each officer of the Maker who signs the registration statement, each director of the Maker, each underwriter and each person who controls any underwriter within the meaning of the 1933 Act, against all losses, claims, damages or liabilities, joint or several, to which the Maker or such officer, director, underwriter or controlling person may become subject under the 1933 Act or otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in the registration statement under which such Registrable Securities were registered under the 1933 Act pursuant to Section 11, any preliminary prospectus or final prospectus contained therein, or any amendment or supplement thereof, or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, and will reimburse the Maker and each such officer, director, underwriter and controlling person for any legal or other expenses reasonably incurred by them in connection with investigating or defending any such loss, claim, damage, liability or action, provided, however, that the Seller will be liable hereunder in any such case if and only to the extent that any such loss, claim, damage or liability arises out of or is based upon an untrue statement or alleged untrue statement or omission or alleged omission made in reliance upon and in conformity with information pertaining to such Seller, as such, furnished in writing to the Maker by such Seller specifically for use in such registration statement or prospectus, and provided, further, however, that the liability of the Seller hereunder shall be limited to the net proceeds actually received by the Seller from the sale of Registrable Securities covered by such registration statement.

(c) Promptly after receipt by an indemnified party hereunder of notice of the commencement of any action, such indemnified party shall, if a claim in respect thereof is to be made against the indemnifying party hereunder, notify the indemnifying party in writing thereof, but the omission so to notify the indemnifying party shall not relieve it from any liability which it may have to such indemnified party other than under this Section 11.6(c) and shall only relieve it from any liability which it may have to such indemnified party under this Section 11.6(c), except and only if and to the extent the indemnifying party is prejudiced by such omission. In case any such action shall be brought against any indemnified party and it shall notify the indemnifying party of the commencement thereof, the indemnifying party shall be entitled to participate in and, to the extent it shall wish, to assume and undertake the defense thereof with counsel satisfactory to such indemnified party, and, after notice from the indemnifying party to such indemnified party of its election so to assume and undertake the defense thereof, the indemnifying party shall not be liable to such indemnified party under this Section 11.6(c) for any legal expenses subsequently incurred by such indemnified party in connection with the defense thereof other than reasonable costs of investigation and of liaison with counsel so selected, provided, however, that, if the defendants in any such action include both the indemnified party and the indemnifying party and the indemnified party shall have reasonably concluded that there may be reasonable defenses available to it which are different from or additional to those available to the indemnifying party or if the interests of the indemnified party reasonably may be deemed to conflict with the interests of the indemnifying party, the indemnified parties, as a group, shall have the right to select one separate counsel and to assume such legal defenses and otherwise to participate in the defense of such action, with the reasonable expenses and fees of such separate counsel and other expenses related to such participation to be reimbursed by the indemnifying party as incurred.

 

 

(d) In order to provide for just and equitable contribution in the event of joint liability under the 1933 Act in any case in which either (i) a Seller, or any controlling person of a Seller, makes a claim for indemnification pursuant to this Section 11.6 but it is judicially determined (by the entry of a final judgment or decree by a court of competent jurisdiction and the expiration of time to appeal or the denial of the last right of appeal) that such indemnification may not be enforced in such case notwithstanding the fact that this Section 11.6 provides for indemnification in such case, or (ii) contribution under the 1933 Act may be required on the part of the Seller or controlling person of the Seller in circumstances for which indemnification is not provided under this Section 11.6; then, and in each such case, the Maker and the Seller will contribute to the aggregate losses, claims, damages or liabilities to which they may be subject (after contribution from others) in such proportion so that the Seller is responsible only for the portion represented by the percentage that the public offering price of its securities offered by the registration statement bears to the public offering price of all securities offered by such registration statement, provided, however, that, in any such case, (y) the Seller will not be required to contribute any amount in excess of the public offering price of all such securities sold by it pursuant to such registration statement; and (z) no person or entity guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the 1933 Act) will be entitled to contribution from any person or entity who was not guilty of such fraudulent misrepresentation.

11.7. Delivery of Unlegended Shares.

(a) Within three (3) business days (such third business day being the “Unlegended Shares Delivery Date”) after the business day on which the Maker has received (i) a notice that Shares or Warrant Shares or any other Common Stock held by Lender have been sold pursuant to the Registration Statement or Rule 144 under the 1933 Act, (ii) a representation that the prospectus delivery requirements, or the requirements of Rule 144, as applicable and if required, have been satisfied (and, if requested by the Transfer Agent, the Maker, or the Maker’s legal counsel, provide reasonably satisfactory evidence of the same), (iii) the original share certificates representing the shares of Common Stock that have been sold, and (iii) in the case of sales under Rule 144, customary representation letters of the Lender and/or Lender’s broker regarding compliance with the requirements of Rule 144, the Maker at its expense, (y) shall deliver, and shall cause legal counsel selected by the Maker to deliver to its transfer agent (with copies to Lender) an appropriate instruction and opinion of such counse