Exhibit 10.36
THIS SECURED CONVERTIBLE
PROMISSORY NOTE AND ANY SECURITIES INTO WHICH THIS SECURED
CONVERTIBLE PROMISSORY NOTE IS CONVERTIBLE HAVE BEEN ACQUIRED FOR
INVESTMENT AND HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED, OR QUALIFIED UNDER ANY STATE SECURITIES LAWS.
SUCH SECURITIES MAY NOT BE SOLD OR TRANSFERRED IN THE ABSENCE OF
SUCH REGISTRATION OR QUALIFICATION OR AN EXEMPTION THEREFROM UNDER
SAID ACT AND ANY APPLICABLE STATE SECURITIES
LAWS.
THIS SECURED CONVERTIBLE
PROMISSORY NOTE AND ANY SECURITIES INTO WHICH THIS SECURED
CONVERTIBLE PROMISSORY NOTE IS CONVERTIBLE ARE SUBJECT TO
RESTRICTIONS ON TRANSFER CONTAINED IN THAT CERTAIN NOTE AND WARRANT
PURCHASE AGREEMENT, DATED [
], 2007, WHICH RESTRICTIONS ON TRANSFER ARE INCORPORATED HEREIN BY
REFERENCE.
SECURED CONVERTIBLE PROMISSORY
NOTE
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$[
]
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[
], 2007
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Leesburg, Virginia
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FOR VALUE RECEIVED, Catcher
Holdings, Inc. , a
Delaware corporation (the “ Company ”),
promises to pay to the order of [
], or its registered assigns (“ Holder
”), the principal sum of [
] Dollars ($[
]) with interest on the outstanding principal amount at the rate of
ten percent (10%) per annum. Interest will be computed on the
basis of a 360 day year consisting of twelve (12) thirty
(30) day months, and for any periods shorter than a full
calendar month, on the basis of the actual number of days elapsed
in such period. Interest on this Note will accrue from the most
recent date to which interest has been paid or, if no interest has
been paid, from the date of Issue. Interest shall commence with the
date hereof and shall continue on the outstanding principal of this
Secured Convertible Promissory Note (this “
Note ”) until paid or converted in accordance
with the provisions hereof.
1. Definitions . For purposes
of this Note, the following terms shall have the following meanings
(capitalized terms used herein but not otherwise defined shall have
the meanings provided therefor in the Agreement):
“ Next Equity Security
Conversion Price ” shall mean a price per share equal
to the price per share paid for the Next Equity Securities (as
defined below) in the Next Equity Financing (as defined
below).
“ Business Day
” means any day which is not a Saturday or Sunday or a legal
holiday on which banks are authorized or required to be closed in
Leesburg, Virginia.
“ Person ”
shall mean an individual, a partnership, a corporation, a limited
liability company, an association, a joint stock company, a trust,
a joint venture, an unincorporated organization and a governmental
entity or any department, agency or political subdivision
thereof.
2. Note and Restricted Stock
Purchase Agreement . This note (this “ Note
”) is issued pursuant to the terms of that certain Note and
Restricted Stock Purchase Agreement (the “
Agreement ”) dated as of [
], 2007, by and among the Company and the Purchasers identified on
the signature pages thereto. This Note is one of a series of notes
(the “ Notes ”) that may be issued under
the Agreement having like tenor and effect (except for variations
necessary to express the principal amount of each of the Notes and
the date on which each Note is issued) issued or to be issued by
the Company in accordance with the terms of the Agreement. The
Notes shall rank equally without preference or priority of any kind
over one another.
3. Maturity . Unless sooner
paid or converted in accordance with the terms hereof, the entire
unpaid principal amount and all unpaid accrued interest shall
become fully due and payable on the earlier of (a) the date
that is ninety (90) days after the date hereof, (b) the
closing of a Next Equity Financing (as defined below), or
(c) the acceleration of the maturity of this Note by the
Holder upon the occurrence of an Event of Default (such earlier
date, the “ Maturity Date ”).
4. Payments .
(a) Form of Payment . All
payments of interest and principal (other than payment by way of
conversion) shall be in lawful money of the United States of
America to Holder, at the address specified in the Agreement, or at
such other address as may be specified from time to time by Holder
in a written notice delivered to the Company.
(b) Interest Payments . The
Company shall pay to Holder accrued and unpaid interest upon the
payment of the full outstanding principal amount.
(c) Prepayment . The Company
shall have the right to prepay any and all amounts owed under this
Note in whole or in part at any time subject to Section 6(a)
below, provided that any such prepayment must be accompanied by the
accrued and unpaid interest on the principal being prepaid through
the date of prepayment.
5. Conversion or Payment Upon
Next Equity Financing .
Conversion into Next Equity
Securities . In the event
that the Company, at any time after the date of issuance of this
Note and prior to the payment or conversion in full of this Note,
shall issue and sell shares of its capital stock (the “
Next Equity Securities ”) to investors for
aggregate proceeds to the Company (including cancellation of the
indebtedness represented by this Note and otherwise) of not less
than $5,000,000 (a “ Next Equity Financing
”), then the outstanding principal amount of this Note and
all accrued but unpaid interest thereon shall, at the option of
Holder, be convertible, at the closing and on the same terms and
conditions of the Next Equity Financing, into shares of the Next
Equity Securities at a conversion price equal to the Next Equity
Security Conversion Price upon surrender to the Company of this
Note at the principal
offices of the Company at the closing of the
Next Equity Financing. In connection with such conversion, Holder
agrees to execute and deliver to the Company any documents
reasonably requested by the Company to be executed by the investors
in the Next Equity Financing, including without limitation a stock
purchase agreement, thereby agreeing to be bound by all obligations
and receive all rights thereunder. As soon as is reasonably
practicable after a conversion has been effected, the Company shall
deliver to Holder a certificate or certificates representing the
number of shares of th
