CALLABLE SECURED CONVERTIBLE NOTE

 

EXHIBIT 4.3

 

         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

 

New York, New York

September 22, 2005                                                      $122,000

 

                   FOR VALUE RECEIVED, AVITAR INC., a Delaware corporation

(hereinafter called the "Borrower"), hereby promises to pay to the order of AJW

PARTNERS, LLC or registered assigns (the "Holder") the sum of $122,000, on

September 22, 2008 (the "Maturity Date"), and to pay interest on the unpaid

principal balance hereof at the rate of eight percent (8%) (the "Interest Rate")

per annum from September 22, 2005 (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

provided that no interest shall be due and payable for any month in which the

Trading Price (as such term is defined below) is greater than $.0375 for each

Trading Day (as such term is defined below) of the month. All payments due

hereunder (to the extent not converted into common stock, $.01 par value per

share (the "Common Stock") in accordance with the terms hereof) shall be made in

lawful money of the United States of America provided that interest due and

payable for the first two (2) months following the Issue Date shall be paid on

the date hereof. 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 September

22, 2005, 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 shareholders 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 and

Intellectual Property Security Agreement, each dated September 22, 2005 by and

between the Borrower and the Holder.

 

          The following terms shall apply to this Note:

 

                          ARTICLE I. CONVERSION RIGHTS

 

1.1 Conversion Right. 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 4.99% of the outstanding shares of Common

Stock and provided further that the Holder shall not be entitled to convert any

portion of this Note during any month immediately succeeding a Determination

Date on which the Borrower exercises its prepayment option pursuant to Section

5.2 of this Note. 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, provided, however, that the Company shall have the right to pay

any or all interest in cash 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 September 22, 2005, executed in connection with the

initial issuance of this Note and the other Notes issued on the Issue Date (the

"Registration Rights Agreement"). The term "Determination Date" means the last

business day of each month after the Issue Date.

 

1.2       Conversion Price.

 

(a) Calculation of Conversion Price. The Conversion Price shall be the Variable

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 ("Reporting Service") mutually

acceptable to Borrower and Holder 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 65.0%.

 

(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.

 

1.3 Authorized Shares. Subject to Stockholder Approval (as such term is 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 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:

 

(a) In the event Holder elects to take such payment in cash, cash payment shall

be made to Holder by the fifth (5th) 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.

 

(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 three (3) business days

after such receipt (and, solely in the case of conversion of the entire unpaid

principal amount hereof, surrender of this Note) (such third 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.

 

(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) business 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:

 

         "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 Rights Agreement or (ii) affect in any way the Holder's obligations

to comply with applicable prospectus delivery requirements upon the resale of

the securities referred to herein.

 

1.6       Effect of Certain Events.

 

(a) Effect of Merger, Consolidation, Etc. At the option of the Holder, the sale,

conveyance or disposition of all or substantially all of the assets of