THIS NOTE,
THE SHARES OF COMMON STOCK ISSUABLE UPON CONVERSION OF THIS NOTE
(THE “SECURITIES”) HAVE BEEN ACQUIRED FOR INVESTMENT
PURPOSES ONLY AND MAY NOT BE TRANSFERRED UNTIL (i) A REGISTRATION
STATEMENT UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
“ACT”) SHALL HAVE BECOME EFFECTIVE WITH RESPECT THERETO
OR (ii) RECEIPT BY THE COMPANY OF AN OPINION OF COUNSEL REASONABLY
SATISFACTORY TO THE COMPANY TO THE EFFECT THAT REGISTRATION UNDER
THE ACT IS NOT REQUIRED IN CONNECTION WITH SUCH PROPOSED TRANSFER
NOR IS IN VIOLATION OF ANY APPLICABLE STATE SECURITIES LAWS. THIS
LEGEND SHALL BE ENDORSED UPON ANY NOTE ISSUED IN EXCHANGE FOR THIS
NOTE AND ANY SECURITIES ISSUABLE UPON CONVERSION OF THIS NOTE
(EXCEPT AS OTHERWISE PROVIDED BELOW).
SECOND AMENDED AND
RESTATED
CONVERTIBLE PROMISSORY
NOTE
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April 28, 2009,
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w ith an effective
date
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of September 18,
2007
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FOR VALUE RECEIVED , the undersigned, RX Scripted, Inc., which has
a business address of 201 Creekvista Drive, Holly Springs, North
Carolina 27540 ("Maker"), hereby promises to pay to the order of
The Loev Law Firm, PC, whose address is 6300 West Loop South, Suite
280, Bellaire, Texas 77401 ("Payee"), the principal sum of
Twenty-Seven Thousand Five Hundred Dollars ($27,500), in lawful
money in United States of America, which shall be legal tender,
bearing interest and payable as provided herein. This
Second Amended and Restated Convertible Promissory Note (this
“Note” or “Promissory Note”) has an
effective date of September 18, 2007, the date of the
parties’ entry into an engagement agreement (the
“Engagement Agreement”).
This Note amends, replaces and supersedes a
promissory note entered into between the parties on or around March
11, 2008 and an Amended and Restated Convertible Promissory Note
entered into between the parties on November 19, 2008.
The Engagement
Agreement required the Maker to pay the Payee $35,000 in
total, along with 1,500,000 shares of the Maker’s common
stock, which shares have previously been issued, for
legal services rendered and to be rendered in connection with the
preparation of articles of incorporation, bylaws, organizational
minutes, a private placement memorandum and an accompanying
subscription agreement and registration rights agreement, an SB-2
registration statement for filing with the Securities and Exchange
Commission, amended filings of the Form SB-2 registration
statement, filing of Form D with the SEC and responding to NASD
comments in connection with a 15c211 filing, as well as
corporate/securities matters requested by the
Company. That amount includes $5,000 upon execution of
the Engagement Agreement, which amount has already been received by
the Payee. This Promissory Note evidences the remaining
$27,500 owed to Payee pursuant to the Engagement
Agreement.
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Interest on the
unpaid balance of this Note shall bear interest at the rate of
seven percent (7%) per annum, which interest shall accrue from the
effective date until the Maturity Date (as defined below), unless
prepaid prior to such Maturity Date. All past-due principal and
interest (which failure to pay such amounts shall be defined herein
as an “Event of Default”) shall bear interest at the
rate of fifteen percent (15%) per annum until paid in
full. Interest will be computed on the basis of a
360-day year.
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The principal
amount of this Note shall be due and payable on October 31, 2009
(the “Maturity Date”).
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This Note may
be prepaid in whole or in part, at any time and from time to time,
without premium or penalty.
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This Note (and
any accrued and unpaid interest hereon) shall be convertible into
shares of Maker’s common stock from time to time if not paid
on or before the Maturity Date, at the sole option of the Payee,
upon five (5) days written notice from the Payee to the Maker of
the Payee’s desire to convert such Note into shares of common
stock at the rate of one share of the Maker’s common stock
for each $0.10 owed to Payee pursuant to this Note (the
“Conversion Price”), which conversion shall be
evidenced by the receipt of the Maker of a Conversion Notice
attached hereto as Exhibit A . The Maker shall
have five (5) business days after the receipt by the Payee of a
Conversion Notice to deliver the shares of common stock converted
to Payee (the “Conversion Shares”). If such
shares are not delivered prior the sixth (6
th ) day following the Maker’s receipt of the
Conversion Notice, such failure to deliver the shares shall
constitute an Event of Default of this Note, which shall not
discharge the Maker’s requirement to deliver the Conversion
Shares.
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If the Maker at
any time or from time to time on or after the effective date of
the issuance of this Note (the “Original Issuance
Date”) effects a subdivision of its outstanding common stock,
the Conversion Price then in effect immediately before that
subdivision shall be proportionately decreased, and conversely, if
the Maker at any time or from time to time on or after the Original
Issuance Date combines its outstanding shares of common stock into
a smaller number of shares, the Conversion Price then in effect
immediately before the combination shall be proportionately
increased.
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Conversion
Shares may not be sold or transferred unless (i) such
shares are sold pursuant to an effective registration statement
under the Securities Act of 1933, as amended (the
“Act”) or (ii) the Maker 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
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