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THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
"ACT"). THE SECURITIES MAY NOT BE SOLD, TRANSFERRED OR ASSIGNED IN
THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT FOR THE
SECURITIES UNDER SAID ACT, OR AN OPINION OF COUNSEL IN FORM,
SUBSTANCE AND SCOPE CUSTOMARY FOR OPINIONS OF COUNSEL IN COMPARABLE
TRANSACTIONS THAT REGISTRATION IS NOT REQUIRED UNDER SAID ACT OR
UNLESS SOLD PURSUANT TO RULE 144 OR REGULATION S UNDER SAID
ACT.
CALLABLE SECURED CONVERTIBLE
NOTE
Addison, Texas
FOR VALUE RECEIVED ,
DEALERADVANCE, INC. , a Nevada
corporation (hereinafter called the "
Borrower "), hereby promises to pay
to the order of ____________________ or registered assigns (the
" Holder ") the sum of
_______________ Dollars ($___________), on December 15, 2009
(the "Maturity Date "), and
to pay interest on the unpaid principal balance hereof at the rate
of eight percent (8%) per annum from December 15, 2006 (the
" Issue Date ") until the
same becomes due and payable, whether at maturity or upon
acceleration or by prepayment or otherwise. Any amount of principal
or interest on this Note which is not paid when due shall bear
interest at the rate of fifteen percent (15%) per annum from the
due date thereof until the same is paid (" Default
Interest "). Interest shall commence
accruing on the issue date, shall be computed on the basis of a
365-day year and the actual number of days elapsed and shall be
payable, quarterly on March 31, June 30, September 30 and
December 31 of each year beginning on June 30, 2006. All
payments due hereunder (to the extent not converted into common
stock, $.0001 par value per share, of the Borrower (the "
Common Stock ") in accordance with
the terms hereof) shall be made in lawful money of the United
States of America, or, at the option of the Borrower, in shares of
Common Stock of the Borrower at the applicable Conversion Price.
All payments shall be made at such address as the Holder shall
hereafter give to the Borrower by written notice made in accordance
with the provisions of this Note. Whenever any amount expressed to
be due by the terms of this Note is due on any day which is not a
business day, the same shall instead be due on the next succeeding
day which is a business day and, in the case of any interest
payment date which is not the date on which this Note is paid in
full, the extension of the due date thereof shall not be taken into
account for purposes of determining the amount of interest due on
such date. As used in this Note, the term "business day" shall mean
any day other than a Saturday, Sunday or a day on which commercial
banks in the city of New York, New York are authorized or required
by law or executive order to remain closed. Each capitalized term
used herein, and not otherwise defined, shall have the meaning
ascribed thereto in that certain Securities Purchase Agreement,
dated December 15, 2006, pursuant to which this Note was originally
issued (the " Purchase Agreement
").
This Note is free from all taxes, liens, claims
and encumbrances with respect to the issue thereof and shall not be
subject to preemptive rights or other similar rights of
stockholders of the Borrower and will not impose personal liability
upon the holder thereof. The obligations of the Borrower under this
Note shall be secured by that certain Security Agreement, dated
December 15, 2006, by and between the Borrower and the
Holder.
The following terms shall apply to this
Note:
ARTICLE I.
CONVERSION RIGHTS
1.1 Conversion
Right . Subject to the Company
obtaining Stockholder Approval as defined in Section 4(n) of the
Securities Purchase Agreement, the Holder shall have the right from
time to time, and at any time on or prior to the earlier of (i) the
Maturity Date and (ii) the date of payment of the Default Amount
(as defined in Article III) pursuant to Section 1.6(a) or Article
III, the Optional Prepayment Amount (as defined in Section 5.1 or
any payments pursuant to Section 1.7, each in respect of the
remaining outstanding principal amount of this Note to convert all
or any part of the outstanding and unpaid principal amount of this
Note into fully paid and non-assessable shares of Common Stock, as
such Common Stock exists on the Issue Date, or any shares of
capital stock or other securities of the Borrower into which such
Common Stock shall hereafter be changed or reclassified at the
conversion price (the " Conversion Price
") determined as provided herein (a "
Conversion "); provided ,
however , that in no event shall the Holder be entitled to
convert any portion of this Note in excess of that portion of this
Note upon conversion of which the sum of (1) the number of shares
of Common Stock beneficially owned by the Holder and its affiliates
(other than shares of Common Stock which may be deemed beneficially
owned through the ownership of the unconverted portion of the Notes
or the unexercised or unconverted portion of any other security of
the Borrower (including, without limitation, the warrants issued by
the Borrower pursuant to the Purchase Agreement) subject to a
limitation on conversion or exercise analogous to the limitations
contained herein) and (2) the number of shares of Common Stock
issuable upon the conversion of the portion of this Note with
respect to which the determination of this proviso is being made,
would result in beneficial ownership by the Holder and its
affiliates of more than 4.9% of the outstanding shares of Common
Stock. For purposes of the proviso to 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 Regulations 13D-G thereunder, except as otherwise
provided in clause (1) of such proviso. The number of shares of
Common Stock to be issued upon each conversion of this Note shall
be determined by dividing the Conversion Amount (as defined below)
by the applicable Conversion Price then in effect on the date
specified in the notice of conversion, in the form attached hereto
as Exhibit A (the " Notice of Conversion
"), delivered to the Borrower by the Holder in
accordance with Section 1.4 below; provided that the Notice of
Conversion is submitted by facsimile (or by other means resulting
in, or reasonably expected to result in, notice) to the Borrower
before 6:00 p.m., New York, New York time on such conversion date
(the " Conversion Date ").
The term " Conversion Amount " means, with respect to any conversion of this Note, the sum
of (1) the principal amount of this Note to be converted in such
conversion plus (2) accrued and unpaid interest, if any, on
such principal amount at the interest rates provided in this Note
to the Conversion Date plus (3) Default Interest, if any, on
the amounts referred to in the immediately preceding clauses (1)
and/or (2) plus (4) at the Holder’s option, any
amounts owed to the Holder pursuant to Sections 1.3 and 1.4(g)
hereof or pursuant to Section 2(c) of that certain Registration
Rights Agreement, dated as of December 15, 2006, executed in
connection with the initial issuance of this Note and the other
Notes issued on the Issue Date (the " Registration
Rights Agreement ").
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1.2 Conversion
Price .
(a) Calculation of
Conversion Price . The Conversion Price
shall be the lesser of (i) the Variable Conversion Price (as
defined herein) and (ii) the Fixed Conversion Price (as defined
herein) (subject, in each case, to equitable adjustments for stock
splits, stock dividends or rights offerings by the Borrower
relating to the Borrower’s securities or the securities of
any subsidiary of the Borrower, combinations, recapitalization,
reclassifications, extraordinary distributions and similar events).
The " Variable Conversion Price " shall mean the Applicable Percentage (as defined herein)
multiplied by the Market Price (as defined herein). "
Market Price " means the average of
the lowest three (3) Trading Prices (as defined below) for the
Common Stock during the twenty (20) Trading Day period ending one
Trading Day prior to the date the Conversion Notice is sent by the
Holder to the Borrower via facsimile (the "
Conversion Date "). "
Trading Price " means, for any
security as of any date, the intraday trading price on the
Over-the-Counter Bulletin Board (the "
OTCBB ") as reported by a reliable
reporting service mutually acceptable to and hereafter designated
by Holders of a majority in interest of the Notes and the Borrower
or, if the OTCBB is not the principal trading market for such
security, the intraday trading price of such security on the
principal securities exchange or trading market where such security
is listed or traded or, if no intraday trading price of such
security is available in any of the foregoing manners, the average
of the intraday trading prices of any market makers for such
security that are listed in the "pink sheets" by the National
Quotation Bureau, Inc. If the Trading Price cannot be calculated
for such security on such date in the manner provided above, the
Trading Price shall be the fair market value as mutually determined
by the Borrower and the holders of a majority in interest of the
Notes being converted for which the calculation of the Trading
Price is required in order to determine the Conversion Price of
such Notes. " Trading Day "
shall mean any day on which the Common Stock is traded for any
period on the OTCBB, or on the principal securities exchange or
other securities market on which the Common Stock is then being
traded. " Applicable Percentage " shall mean 25.0%. The " Fixed Conversion
Price " shall mean $.05.
(b) Conversion Price
During Major Announcements . Notwithstanding anything contained in Section 1.2(a) to the
contrary, in the event the Borrower (i) makes a public announcement
that it intends to consolidate or merge with any other corporation
(other than a merger in which the Borrower is the surviving or
continuing corporation and its capital stock is unchanged) or sell
or transfer all or substantially all of the assets of the Borrower
or (ii) any person, group or entity (including the Borrower)
publicly announces a tender offer to purchase 50% or more of the
Borrower’s Common Stock (or any other takeover scheme) (the
date of the announcement referred to in clause (i) or (ii) is
hereinafter referred to as the " Announcement
Date "), then the Conversion Price shall,
effective upon the Announcement Date and continuing through the
Adjusted Conversion Price Termination Date (as defined below), be
equal to the lower of (x) the Conversion Price which would have
been applicable for a Conversion occurring on the Announcement Date
and (y) the Conversion Price that would otherwise be in effect.
From and after the Adjusted Conversion Price Termination Date, the
Conversion Price shall be determined as set forth in this Section
1.2(a). For purposes hereof, " Adjusted Conversion
Price Termination Date " shall mean, with
respect to any proposed transaction or tender offer (or takeover
scheme) for which a public announcement as contemplated by this
Section 1.2(b) has been made, the date upon which the Borrower (in
the case of clause (i) above) or the person, group or entity (in
the case of clause (ii) above) consummates or publicly announces
the termination or abandonment of the proposed transaction or
tender offer (or takeover scheme) which caused this Section 1.2(b)
to become operative.
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1.3 Authorized
Shares . Subject to the Stockholder
Approval (as defined in Section 4(n) of the Securities Purchase
Agreement), the Borrower covenants that during the period the
conversion right exists, the Borrower will reserve from its
authorized and unissued Common Stock a sufficient number of shares,
free from preemptive rights, to provide for the issuance of Common
Stock upon the full conversion of this Note and the other Notes
issued pursuant to the Purchase Agreement. The Borrower is required
at all times to have authorized and reserved two (2) times the
number of shares that is actually issuable upon full conversion of
the Notes (based on the Conversion Price of the Notes or the
Exercise Price of the Warrants in effect from time to time) (the
" Reserved Amount "). The
Reserved Amount shall be increased from time to time in accordance
with the Borrower’s obligations pursuant to Section 4(h) of
the Purchase Agreement. The Borrower represents that upon issuance,
such shares will be duly and validly issued, fully paid and
non-assessable. In addition, if the Borrower shall issue any
securities or make any change to its capital structure which would
change the number of shares of Common Stock into which the Notes
shall be convertible at the then current Conversion Price, the
Borrower shall at the same time make proper provision so that
thereafter there shall be a sufficient number of shares of Common
Stock authorized and reserved, free from preemptive rights, for
conversion of the outstanding Notes. The Borrower (i) acknowledges
that it has irrevocably instructed its transfer agent to issue
certificates for the Common Stock issuable upon conversion of this
Note, and (ii) agrees that its issuance of this Note shall
constitute full authority to its officers and agents who are
charged with the duty of executing stock certificates to execute
and issue the necessary certificates for shares of Common Stock in
accordance with the terms and conditions of this Note.
If, at any time a Holder of this Note submits a
Notice of Conversion, and the Borrower does not have sufficient
authorized but unissued shares of Common Stock available to effect
such conversion in accordance with the provisions of this Article I
(a " Conversion Default "),
subject to Section 4.8, the Borrower shall issue to the Holder all
of the shares of Common Stock which are then available to effect
such conversion. The portion of this Note which the Holder included
in its Conversion Notice and which exceeds the amount which is then
convertible into available shares of Common Stock (the "
Excess Amount ") shall,
notwithstanding anything to the contrary contained herein, not be
convertible into Common Stock in accordance with the terms hereof
until (and at the Holder’s option at any time after) the date
additional shares of Common Stock are authorized by the Borrower to
permit such conversion, at which time the Conversion Price in
respect thereof shall be the lesser of (i) the Conversion Price on
the Conversion Default Date (as defined below) and (ii) the
Conversion Price on the Conversion Date thereafter elected by the
Holder in respect thereof. In addition, the Borrower shall pay to
the Holder payments (" Conversion Default
Payments ") for a Conversion Default in the
amount of (x) the sum of (1) the then outstanding principal
amount of this Note plus (2) accrued and unpaid interest on
the unpaid principal amount of this Note through the Authorization
Date (as defined below) plus (3) Default Interest, if any,
on the amounts referred to in clauses (1) and/or (2), multiplied
by (y) .24, multiplied by (z) (N/365), where N = the
number of days from the day the holder submits a Notice of
Conversion giving rise to a Conversion Default (the "
Conversion Default Date ") to the
date (the " Authorization Date ") that the Borrower authorizes a sufficient number of shares
of Common Stock to effect conversion of the full outstanding
principal balance of this Note. The Borrower shall use its best
efforts to authorize a sufficient number of shares of Common Stock
as soon as practicable following the earlier of (i) such time that
the Holder notifies the Borrower or that the Borrower otherwise
becomes aware that there are or likely will be insufficient
authorized and unissued shares to allow full conversion thereof and
(ii) a Conversion Default. The Borrower shall send notice to the
Holder of the authorization of additional shares of Common Stock,
the Authorization Date and the amount of Holder’s accrued
Conversion Default Payments. The accrued Conversion Default
Payments for each calendar month shall be paid in cash or shall be
convertible into Common Stock (at such time as there are sufficient
authorized shares of Common Stock) at the applicable Conversion
Price, at the Borrower’s option, as follows:
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(a) In the event
Holder elects to take such payment in cash, cash payment shall be
made to Holder by the fifth (5 th ) day of the month
following the month in which it has accrued; and
(b) In the event
Holder elects to take such payment in Common Stock, the Holder may
convert such payment amount into Common Stock at the Conversion
Price (as in effect at the time of conversion) at any time after
the fifth day of the month following the month in which it has
accrued in accordance with the terms of this Article I (so long as
there is then a sufficient number of authorized shares of Common
Stock).
The Holder’s election shall be made in
writing to the Borrower at any time prior to 6:00 p.m., New York,
New York time, on the third day of the month following the month in
which Conversion Default payments have accrued. If no election is
made, the Holder shall be deemed to have elected to receive cash.
Nothing herein shall limit the Holder’s right to pursue
actual damages (to the extent in excess of the Conversion Default
Payments) for the Borrower’s failure to maintain a sufficient
number of authorized shares of Common Stock, and each holder shall
have the right to pursue all remedies available at law or in equity
(including degree of specific performance and/or injunctive
relief).
1.4 Method of
Conversion .
(a) Mechanics of
Conversion . Subject to Section 1.1,
this Note may be converted by the Holder in whole or in part at any
time from time to time after the Issue Date, by (A) submitting
to the Borrower a Notice of Conversion (by facsimile or other
reasonable means of communication dispatched on the Conversion Date
prior to 6:00 p.m., New York, New York time) and (B) subject
to Section 1.4(b), surrendering this Note at the principal office
of the Borrower.
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(b) Surrender of Note
Upon Conversion . Notwithstanding
anything to the contrary set forth herein, upon conversion of this
Note in accordance with the terms hereof, the Holder shall not be
required to physically surrender this Note to the Borrower unless
the entire unpaid principal amount of this Note is so converted.
The Holder and the Borrower shall maintain records showing the
principal amount so converted and the dates of such conversions or
shall use such other method, reasonably satisfactory to the Holder
and the Borrower, so as not to require physical surrender of this
Note upon each such conversion. In the event of any dispute or
discrepancy, such records of the Borrower shall be controlling and
determinative in the absence of manifest error. Notwithstanding the
foregoing, if any portion of this Note is converted as aforesaid,
the Holder may not transfer this Note unless the Holder first
physically surrenders this Note to the Borrower, whereupon the
Borrower will forthwith issue and deliver upon the order of the
Holder a new Note of like tenor, registered as the Holder (upon
payment by the Holder of any applicable transfer taxes) may
request, representing in the aggregate the remaining unpaid
principal amount of this Note. The Holder and any assignee, by
acceptance of this Note, acknowledge and agree that, by reason of
the provisions of this paragraph, following conversion of a portion
of this Note, the unpaid and unconverted principal amount of this
Note represented by this Note may be less than the amount stated on
the face hereof.
(c) Payment of
Taxes . The Borrower shall not be
required to pay any tax which may be payable in respect of any
transfer involved in the issue and delivery of shares of Common
Stock or other securities or property on conversion of this Note in
a name other than that of the Holder (or in street name), and the
Borrower shall not be required to issue or deliver any such shares
or other securities or property unless and until the person or
persons (other than the Holder or the custodian in whose street
name such shares are to be held for the Holder’s account)
requesting the issuance thereof shall have paid to the Borrower the
amount of any such tax or shall have established to the
satisfaction of the Borrower that such tax has been
paid.
(d) Delivery of Common
Stock Upon Conversion . Upon receipt by
the Borrower from the Holder of a facsimile transmission (or other
reasonable means of communication) of a Notice of Conversion
meeting the requirements for conversion as provided in this Section
1.4, the Borrower shall issue and deliver or cause to be issued and
delivered to or upon the order of the Holder certificates for the
Common Stock issuable upon such conversion within two (2) business
days after such receipt (and, solely in the case of conversion of
the entire unpaid principal amount hereof, surrender of this Note)
(such second business day being hereinafter referred to as the
" Deadline ") in accordance
with the terms hereof and the Purchase Agreement (including,
without limitation, in accordance with the requirements of Section
2(g) of the Purchase Agreement that certificates for shares of
Common Stock issued on or after the effective date of the
Registration Statement upon conversion of this Note shall not bear
any restrictive legend).
(e) Obligation of
Borrower to Deliver Common Stock . Upon
receipt by the Borrower of a Notice of Conversion, the Holder shall
be deemed to be the holder of record of the Common Stock issuable
upon such conversion, the outstanding principal amount and the
amount of accrued and unpaid interest on this Note shall be reduced
to reflect such conversion, and, unless the Borrower defaults on
its obligations under this Article I, all rights with respect to
the portion of this Note being so converted shall forthwith
terminate except the right to receive the Common Stock or other
securities, cash or other assets, as herein provided, on such
conversion. If the Holder shall have given a Notice of Conversion
as provided herein, the Borrower’s obligation to issue and
deliver the certificates for Common Stock shall be absolute and
unconditional, irrespective of the absence of any action by the
Holder to enforce the same, any waiver or consent with respect to
any provision thereof, the recovery of any judgment against any
person or any action to enforce the same, any failure or delay in
the enforcement of any other obligation of the Borrower to the
holder of record, or any setoff, counterclaim, recoupment,
limitation or termination, or any breach or alleged breach by the
Holder of any obligation to the Borrower, and irrespective of any
other circumstance which might otherwise limit such obligation of
the Borrower to the Holder in connection with such conversion. The
Conversion Date specified in the Notice of Conversion shall be the
Conversion Date so long as the Notice of Conversion is received by
the Borrower before 6:00 p.m., New York, New York time, on such
date.
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(f) Delivery of Common
Stock by Electronic Transfer . In lieu
of delivering physical certificates representing the Common Stock
issuable upon conversion, provided the Borrower’s transfer
agent is participating in the Depository Trust Company ("
DTC ") Fast Automated Securities
Transfer (" FAST ") program,
upon request of the Holder and its compliance with the provisions
contained in Section 1.1 and in this Section 1.4, the Borrower
shall use its best efforts to cause its transfer agent to
electronically transmit the Common Stock issuable upon conversion
to the Holder by crediting the account of Holder’s Prime
Broker with DTC through its Deposit Withdrawal Agent Commission
(" DWAC ")
system.
(g) Failure to Deliver
Common Stock Prior to Deadline . Without in any way limiting the Holder’s right to pursue
other remedies, including actual damages and/or equitable relief,
the parties agree that if delivery of the Common Stock issuable
upon conversion of this Note is more than two (2) days after the
Deadline (other than a failure due to the circumstances described
in Section 1.3 above, which failure shall be governed by such
Section) the Borrower shall pay to the Holder $2,000 per day in
cash, for each day beyond the Deadline that the Borrower fails to
deliver such Common Stock. Such cash amount shall be paid to Holder
by the fifth day of the month following the month in which it has
accrued or, at the option of the Holder (by written notice to the
Borrower by the first day of the month following the month in which
it has accrued), shall be added to the principal amount of this
Note, in which event interest shall accrue thereon in accordance
with the terms of this Note and such additional principal amount
shall be convertible into Common Stock in accordance with the terms
of this Note.
1.5 Concerning the
Shares . The shares of Common Stock
issuable upon conversion of this Note may not be sold or
transferred unless (i) such shares are sold pursuant to an
effective registration statement under the Act or (ii) the Borrower
or its transfer agent shall have been furnished with an opinion of
counsel (which opinion shall be in form, substance and scope
customary for opinions of counsel in comparable transactions) to
the effect that the shares to be sold or transferred may be sold or
transferred pursuant to an exemption from such registration or
(iii) such shares are sold or transferred pursuant to Rule 144
under the Act (or a successor rule) (" Rule
144 ") or (iv) such shares are transferred
to an "affiliate" (as defined in Rule 144) of the Borrower who
agrees to sell or otherwise transfer the shares only in accordance
with this Section 1.5 and who is an Accredited Investor (as defined
in the Purchase Agreement). Except as otherwise provided in the
Purchase Agreement (and subject to the removal provisions set forth
below), until such time as the shares of Common Stock issuable upon
conversion of this Note have been registered under the Act as
contemplated by the Registration Rights Agreement or otherwise may
be sold pursuant to Rule 144 without any restriction as to the
number of securities as of a particular date that can then be
immediately sold, each certificate for shares of Common Stock
issuable upon conversion of this Note that has not been so included
in an effective registration statement or that has not been sold
pursuant to an effective registration statement or an exemption
that permits removal of the legend, shall bear a legend
substantially in the following form, as appropriate:
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"THE SECURITIES REPRESENTED BY THIS CERTIFICATE
HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED. THE SECURITIES MAY NOT BE SOLD, TRANSFERRED OR ASSIGNED IN
THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT FOR THE
SECURITIES UNDER SAID ACT, OR AN OPINION OF COUNSEL IN FORM,
SUBSTANCE AND SCOPE CUSTOMARY FOR OPINIONS OF COUNSEL IN COMPARABLE
TRANSACTIONS, THAT REGISTRATION IS NOT REQUIRED UNDER SAID ACT
UNLESS SOLD PURSUANT TO RULE 144 OR REGULATION S UNDER SAID
ACT."
The legend set forth above shall be removed and
the Borrower shall issue to the Holder a new certificate therefor
free of any transfer legend if (i) the Borrower or its transfer
agent shall have received an opinion of counsel, in form, substance
and scope customary for opinions of counsel in comparable
transactions, to the effect that a public sale or transfer of such
Common Stock may be made without registration under the Act and the
shares are so sold or transferred, (ii) such Holder provides the
Borrower or its transfer agent with reasonable assurances that the
Common Stock issuable upon conversion of this Note (to the extent
such securities are deemed to have been acquired on the same date)
can be sold pursuant to Rule 144 or (iii) in the case of the Common
Stock issuable upon conversion of this Note, such security is
registered for sale by the Holder under an effective registration
statement filed under the Act or otherwise may be sold pursuant to
Rule 144 without any restriction as to the number of securities as
of a particular date that can then be immediately sold. Nothing in
this Note shall (i) limit the Borrower’s obligation under the
Registration
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