EXHIBIT 4.1
THIS NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933,
AS AMENDED
(THE "1933 ACT"), OR UNDER THE PROVISIONS OF ANY APPLICABLE
STATE SECURITIES
LAWS, BUT HAS BEEN ACQUIRED BY THE REGISTERED HOLDER HEREOF FOR PURPOSES OF
INVESTMENT AND IN RELIANCE ON STATUTORY
EXEMPTIONS UNDER THE 1933 ACT, AND UNDER
ANY APPLICABLE STATE SECURITIES LAWS. THIS NOTE MAY NOT BE SOLD, PLEDGED,
TRANSFERRED OR ASSIGNED EXCEPT IN A
TRANSACTION WHICH IS EXEMPT UNDER PROVISIONS
OF THE 1933 ACT AND ANY APPLICABLE STATE SECURITIES LAWS OR PURSUANT TO AN
EFFECTIVE REGISTRATION STATEMENT;
AND IN THE CASE OF AN
EXEMPTION, ONLY IF
THE
COMPANY HAS RECEIVED AN OPINION OF COUNSEL
SATISFACTORY TO THE COMPANY THAT SUCH
TRANSACTION DOES NOT REQUIRE REGISTRATION
OF THIS NOTE.
ACCUPOLL HOLDING CORP.
August 25, 2005
Tustin, California
$62,473.00
8% CONVERTIBLE PROMISSORY NOTE
AccuPoll Holding Corp., a Nevada corporation (the "Company"),
for
value received, hereby promises to pay to Frank J. Wiebe,
or his registered
assign (the "Holder") on August 25, 2006
(the "Maturity Date"), at the principal
offices of the Company, the principal sum owed Holder on
such date in such coin
or currency of the United States of America as at the time
of payment shall
be
legal tender for the payment of public and
private debts, and to pay interest on
the outstanding principal sum hereof at the
rate of eight percent (8%) per annum
(the "Note") and payable monthly in arrears commencing October 2005, by the
fifth day of the successive calendar month. Principal shall be payable on
the
Maturity Date in like coin or currency to
the Holder hereof at the office of the
Company as hereinafter set forth,
provided that any
payment otherwise due
on a
Saturday, Sunday or legal Bank holiday may be paid on the
following business
day. In the event that for any reason whatsoever any interest or other
consideration payable with respect to this Note shall be
deemed to be usurious
by a court of competent jurisdiction under the laws of the State of
California
or the laws of any other state governing
the repayment hereof,
then so much of
such interest or other consideration as shall be deemed
to be usurious shall be
held by the holder as security for the
repayment of the principal amount hereof
and shall otherwise be waived. As of the date first above,
Holder has
advanced
to the Company $62,473 and in his sole
discretion may make
additional
advances
available from time to time up to
$200,000.
1. TRANSFERS OF NOTE TO COMPLY WITH THE 1933 ACT
---------------------------------------------
The Holder
agrees that this Note may not be sold, transferred,
pledged, hypothecated or otherwise disposed of except as follows: (1) to a
person whom the Note may legally be
transferred without registration and without
delivery of a current prospectus under the 1933 Act with
respect thereto and
then only against receipt of an agreement of such person to comply with the
provisions of this Section 1 with respect
to any resale or other
disposition of
the Note; or (2) to any person upon
delivery of a
prospectus then
meeting the
requirements of the 1933 Act relating to such securities and the offering
thereof for such sale or disposition, and thereafter to all successive
assignees.
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2. PREPAYMENT; CONVERSION
----------------------
The principal amount of this Note may be prepaid by the Company,
in
whole or in part without premium or
penalty, at any time. Upon any prepayment of
the entire principal amount of this Note, all accrued, but unpaid, interest
shall be paid to the Holder on the date of
prepayment.
At any time prior to
or at the time of
repayment of this Note
by
the Company, the Holder may elect to convert
some or all of the
principal and
interest owing on this Note into shares of
the Company's
common stock at the
rate of $0.118 per share. Such election to convert shall be evidenced by
completion of the conversion notice attached hereto and
delivery of such notice
to the Company. The Holder's right to convert the obligations due under this
Note to common stock shall supercede the Company's right to repay such
obligations in cash.
3. COVENANTS OF COMPANY
--------------------
The Company covenants and agrees that, so long as any principal
of,
or interest on, this Note shall remain
unpaid, unless the Holder shall otherwise
consent in writing, it will comply with the
following terms:
(a) REPORTING REQUIREMENTS. The Company will furnish to the
Holder:
(i) as soon as possible, and in any event within ten (10)
days
after obtaining knowledge of the occurrence of (A) an "Event of Default,"
as
hereinafter defined, (B) an event which, with
the giving of notice or the lapse
of time or both, would constitute an Event
of Default, or (C) a material adverse
change in the condition or operations,
financial or
otherwise, of the
Company,
taken as whole, the written statement of the Chief Executive Officer or the
Chief Financial Officer of the Company,
setting forth the
details of such Event
of Default, event or material adverse change and the action which the
Company
proposes to take with respect thereto;
(ii) promptly after
the sending or filing
thereof, copies of
all financial statements, reports, certificates of its Chief
Executive Officer,
Chief Financial Officer or accountants and other
information which the
Company
or any subsidiary sends to any holders
(other than the Notes) of its securities;
(iii) promptly after the commencement thereof, notice of each
action, suit or proceeding before any
court or other governmental authority or
other regulatory body or any arbitrator as to which there is a reasonable
possibility of a determination that would (A) materially
impact the ability
of
the Company or any subsidiary to conduct its business, (B) materially and
adversely affect the business, operations or financial condition
of the Company
taken as a whole, or (C) impair the
validity or
enforceability of the
Notes or
the ability of the Company to perform its
obligations under the Notes.
2
<PAGE>
(b) COMPLIANCE WITH LAWS. The Company will comply, in all material
respects with all applicable laws, rules,
regulations and
orders, except to the
extent that noncompliance would not have a material
adverse effect upon the
business, operations or financial condition
of the Company taken as a whole.
(c) PRESERVATION
OF EXISTENCE. The Company will maintain and
preserve, and cause each subsidiary, if any, to maintain and preserve, its
existence, and become or remain duly qualified and in good standing in each
jurisdiction in which the failure to be so qualified would have a material
adverse effect on the business, operations or financial condition of the
Company, taken as a whole.
(d) MAINTENANCE
OF PROPERTIES. The Company will maintain and
preserve, all of its properties which are
necessary in the proper conduct of its
business in good working order and
condition,
ordinary wear and tear
excepted,
and comply, at all times with the provisions of all leases to which it is a
party as lessee or under which it occupies property, so as to prevent any
forfeiture or material loss thereof or
thereunder.
(e) MAINTENANCE
OF INSURANCE. The Company will maintain, with
responsible and reputable insurers,
insurance with respect to its properties and
business, in such amounts and covering such
risks, as is carried
generally in
accordance w
