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EXHIBIT 4.30
CONVERTIBLE PROMISSORY NOTE
THE SECURITIES EVIDENCED HEREBY HAVE NOT
BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED ("THE 1933 ACT")
AND MAY NOT BE SOLD, TRANSFERRED,
ASSIGNED OR HYPOTHECATED UNLESS THERE IS AN
EFFECTIVE REGISTRATION STATEMENT
UNDER THE 1933 ACT COVERING SUCH SECURITIES
OR THE COMPANY RECEIVES AN OPINION
OF COUNSEL FOR THE HOLDER OF THESE
SECURITIES, REASONABLY SATISFACTORY TO THE
COMPANY, STATING THAT SUCH SALE, TRANSFER,
ASSIGNMENT OR HYPOTHECATION IS EXEMPT
FROM THE REGISTRATION AND PROSPECTUS
DELIVERY REQUIREMENTS OF THE 1933 ACT. THE
TRANSFER OF THIS NOTE (AND THE SHARES OF
COMMON STOCK THAT MAY BE ACQUIRABLE
UPON CONVERSION) IS SUBJECT TO RESTRICTIONS
AS PROVIDED HEREIN. AN INVESTMENT IN
THIS NOTE (AND THE COMMON STOCK THAT MAY BE
ACQUIRED UPON CONVERSION) IS HIGHLY
SPECULATIVE.
ILINC COMMUNICATIONS, INC.
A DELAWARE CORPORATION
CONVERTIBLE PROMISSORY NOTE
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Note Number: NPA - ________
Place of Issue:
Phoenix, Arizona
Principal Balance: $_______________ Date
of Issue: February 12,
2004
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FOR VALUE RECEIVED, iLinc Communications,
Inc., a Delaware corporation (the
"Company"), hereby promises to pay to
______________________________________________ or registered
assigns
(hereinafter referred to as the "Holder"),
the original principal sum of
_________________________ and 00/100
dollars ($__________________). This
Convertible Promissory Note (the "Note") is
being issued as one of a series of
Notes of like tenor that are being issued
by the Company pursuant to a certain
Note Purchase Agreement between the
Company, the payee of this Note and certain
other Lenders, dated February 12, 2004
("Purchase Agreement") (with the
capitalized but undefined terms herein
having the meaning given them in the
Purchase Agreement) and with the aggregate
principal amount of all notes
totaling $500,000 (collectively, the
"Notes"). Until converted pursuant to
Section 4 hereof, interest on the unpaid
principal sum of and any accrued but
unpaid interest under this Note shall be
paid at the rate of 8% per annum for a
period of one year from the date hereof and
thereafter at the rate of 12% per
annum until paid in full. If, however, a
registration statement under the
Securities Act of 1933 with respect to all
of the Registrable Securities (as
defined in the Purchase Agreement) has not
become effective by July 31, 2004
("Registration Date"), the rate of interest
under this Note shall be adjusted
retroactive effective to the date of this
Note to the rate of 15% per annum
("Adjusted Rate"). In such event, the
difference between the interest paid or
accrued at the Registration Date and
interest accrued under the Adjusted Rate
for the period between the date of this
Note and the Registration Date shall be
immediately due and payable and, if not
paid immediately, shall be added to the
principal amount of this Note and shall
bear interest at the Adjusted Rate.
Payments of interest shall be made
quarterly in arrears and shall be paid on the
first day of each calendar quarter;
provided that a registration statement not
become effective before the Registration
Date, then during any period in which
interest accrues at the Adjusted Rate
payments of interest shall be made on a
monthly basis, on the first day of each
calendar month.
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1. PAYMENTS. Accrued interest shall be due
and payable at the end of each
calendar quarter following the Issue Date.
Unless earlier converted pursuant to
Section 4 hereof, the principal of and any
accrued but unpaid interest under
this Note shall be due and payable two (2)
years after the Issue Date (the
"Maturity Date"). Payment shall be made in
lawful money of the United States of
America at the address of the Holder shown
in the above-mentioned Note Purchase
Agreement, or at such other place as the
Holder may designate in writing or, if
earlier, an Event of Default (as defined
below). Prepayment of principal and
accrued interest may be made upon thirty
(30) days' prior written notice to the
Holder. Except as otherwise set forth in
Section 4, the Company shall have the
right to prepay all principal and accrued
but unpaid interest of this Note prior
to the Maturity Date without penalty or
premium, provided however that upon
receipt of written notice of the Company's
intent to prepay this Note, Holder
shall have thirty (30) days to exercise its
right to convert this Note into
Common Stock, as provided in Section 4 (the
"Prepayment Notice Period"). The
Company and Holder agree that should the
Company breach Section 5.7 of the
Purchase Agreement, (after notice by
Lenders of breach thereof and the failure
to cure such breach within five (5)
business days of the receipt of such notice
as provided therein), and only in that
event, and unless already converted,
Holder shall be repaid out of the Peacock
Offering Proceeds, but if the Peacock
Offering is not consummated, then the
Maturity Date of this Note shall be April
15, 2005, at which time the then
outstanding principal and accrued but unpaid
interest shall be then due and payable.
2. DEFAULT. If any of the following events
(hereafter called "Events of
Default") shall occur:
(a) the Company shall default in the payment of any principal
or
accrued interest due under this Note on the
date the same shall become due and
payable, whether at maturity or by
acceleration or otherwise; or
(b) upon any breach by the Company of any material
representation,
warranty or covenant in this Note or the
Note Purchase Agreement; provided that,
in the event of such material breach, shall
not have been cured by the Company
within 30 days after receipt by the Company
of written notice to the Company of
such breach; or
(c) the Company shall make a general assignment for the benefit
of
creditors; or
(d) the Company shall file a voluntary petition in bankruptcy, or
shall
be insolvent or adjudicated bankrupt, or
shall file any petition or answer
seeking any reorganization, arrangement,
composition, readjustment, liquidation,
dissolution or similar relief under the
present or any future federal bankruptcy
act or other applicable federal, state or
other statute, law or regulation, or
shall file any answer admitting the
material allegation of a petition filed
against the Company in such proceeding, or
shall seek or consent to or acquiesce
in the appointment of any trustee, receiver
or liquidator of the Company of all
or any substantial part of the properties
of the Company, or the Company shall
commence the winding up or the dissolution
or liquidation of the Company; or
(e) within sixty (60) days after the commencement of an action
against
the Company (and service of process in
connection therewith on the Company)
seeking any bankruptcy, insolvency,
reorganization, liquidation, dissolution or
similar relief under any present or future
statute, law or regulation, such
action shall not have been resolved in
favor of the Company or all orders or
proceedings thereunder affecting the
operations or the business of the Company
stayed, or if the stay of any such order or
proceeding shall thereafter be set
aside, or if, within sixty (60) days after
the appointment without the consent
or acquiescence of the Company of any
trustee, receiver or liquidator of the
Company or of all or any substantial part
of the properties of the Company, such
appointment shall not have been vacated;
or
(f) the Company (i) repurchases any shares of its common stock
or
preferred stock, other than shares issued
to officers, directors, employees and
consultants of the Company pursuant to
agreements obligating the Company to
repurchase such shares upon termination of
employment with or service to the
Company, (ii) pays a cash dividend or makes
any other property distribution
(other than a dividend in the form of
equity in the Company) to its equity
holders, or (iii) repays any of the Notes
other than a repayment concurrently
made on all Notes on a pro rata basis.
Should an Event of Default occur and
failure to cure if provided, then, and in
each and every such case, the Holder
of the Note may, by written notice to the
Company, declare all amounts under
this Note and all other Notes to be
forthwith due and payable without
presentation, protest or further demand or
notice of any kind, all of which are
hereby expressly waived.
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3. SUBORDINATION. The indebtedness
evidenced by this Note is hereby expressly
subordinated, to the extent and in the
manner hereinafter set forth, in right of
payment to the prior payment in full of all
the Company's Senior Indebtedness,
as hereinafter defined.
(a) SENIOR INDEBTEDNESS. As used in this Note, the term "Senior
Indebtedness" shall mean the principal of
and unpaid accrued interest on: (i)
all indebtedness (whether or not secured)
of the Company to banks, insurance
companies or other financial institutions
regularly engaged in the business of
lending money, which is for money borrowed
by the Company, (ii) amounts due to
software and equipment lessors pursuant to
lease agreements whereunder the
Company is the lessee, and (iii) any
debentures, notes or other evidence of
indebtedness issued in exchange for such
Senior Indebtedness, or any
indebtedness arising from the satisfaction
of such Senior Indebtedness by a
guarantor.
(b) DEFAULT ON SENIOR INDEBTEDNESS. If there should occur any
receivership, insolvency, assignment for
the benefit of creditors, bankruptcy,
reorganization or arrangements with
creditors (whether or not pursuant to
bankruptcy or other insolvency laws), sale
of all or substantially all of the
assets, dissolution, liquidation or any
other marshaling of the assets and
liabilities of the Company, or if this Note
shall be declared due and payable
upon the occurrence of a default with
respect to any Senior Indebtedness, then
(i) no amount shall be paid by the Company
in respect of the principal of or
interest on this Note at the time
outstanding, unless and until the principal of
and interest on the Senior Indebtedness
then outstanding shall be paid in full,
and (ii) no claim or proof of claim shall
be filed with the Company by or on
behalf of the Holder of this Note that
shall assert any right to receive any
payments in respect of the principal of and
interest on this Note, except
subject to the payment in full of the
principal of and interest on all of the
Senior Indebtedness then outstanding. If
there occurs an event of default that
has been declared in writing with respect
to any Senior Indebtedness as defined
in the instrument governing such Senior
Indebtedness or in the instrument under
which any Senior Indebtedness is
outstanding, permitting the holder of such
Senior Indebtedness to accelerate the
maturity there of, then, unless and until
such default shall have been cured or
waived or shall have ceased to exist, or
all Senior Indebtedness shall have been
paid in full, no payment shall be made
in respect of the principal of or interest
on this Note.
(c) EFFECT OF SUBORDINATION. Subject to the rights, if any, of
the
holders of Senior Indebtedness under this
Section 3 to receive cash, securities
or other properties otherwise payable or
deliverable to the Holder of this Note,
nothing contained in this Section 3 shall
impair, as between the Company and the
Holder, the obligation of the Company,
subject to the terms and conditions
hereof, to pay to the Holder the principal
hereof as and when the same become
due and payable, or shall prevent the
Holder of this Note, upon default
hereunder, from exercising all rights,
powers and remedies otherwise provided
herein or by applicable law.
(d) SUBROGATION. Subject to the payment in full off all Senior
Indebtedness and until this Note shall be
paid in full, the Holder shall be
subrogated to the rights of the holders of
Senior Indebtedness (to the extent of
payments or distributions previously made
to such holders of Senior Indebtedness
pursuant to the provisions of Section 3(b)
above) to receive payments or
distributions of assets of the Company
applicable to the Senior Indebtedness. No
such payments or distributions applicable
to the Senior Indebtedness shall, as
between the Company and its creditors,
other than the holders of Senior
Indebtedness and the Holder, be deemed to
be a payment by the Company to or on
account of this Note; and for the purposes
of such subrogation, no payments or
distributions to the holders of Senior
Indebtedness to which the Holder would be
entitled except for the provisions of this
Section 4 shall, as between the
Company and its creditors, other than the
holders of Senior Indebtedness and the
Holder, be deemed to be a payment by the
Company to or on account of the Senior
Indebtedness.
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(e) UNDERTAKING. By its acceptance of this Note, the Holder agrees
to
execute and deliver such documents as may
be reasonably requested from time to
time by the Company or the holder of any
Senior Indebtedness in order to
implement the foregoing provisions of this
Section 3.
4. CONVERSION.
(a) GRANT OF RIGHT. Subject to the terms of Section 4(d) hereof,
any
Holder of this Note has the right, at the
Holder's option, at any time prior to
the Maturity Date or earlier payment in
full of the entire principal balance of
and accrued interest under this Note,
including without limitation, during the
thirty (30) day Prepayment Notice Period to
convert, in accordance with the
provisions of this Section 4, (i) the
outstanding principal amo
