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EXHIBIT 4.13.15
THIS NOTE (THE "NOTE") AND THE COMMON SHARES ISSUABLE UPON
CONVERSION OF THIS
NOTE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933,
AS AMENDED, OR
ANY STATE SECURITIES LAWS. THIS NOTE AND THE COMMON SHARES
ISSUABLE UPON
CONVERSION OF THIS NOTE MAY NOT BE SOLD, OFFERED FOR SALE,
PLEDGED OR
HYPOTHECATED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION
STATEMENT AS TO THIS
NOTE UNDER SAID ACT AND ANY APPLICABLE STATE SECURITIES LAWS OR
AN OPINION OF
COUNSEL REASONABLY SATISFACTORY TO EPIXTAR CORP. AND/OR VOXX
CORPORATION, AS
APPLICABLE, THAT SUCH REGISTRATION IS NOT REQUIRED.
SECURED CONVERTIBLE TERM NOTE
FOR VALUE RECEIVED, EPIXTAR CORP., a Florida corporation
("EPXR"), and
VOXX CORPORATION, a Florida corporation ("VOXX") (EPXR and VOXX,
collectively,
the "BORROWER"), jointly and severally hereby promise to pay to
Sands Brothers
Venture Capital LLC (the "HOLDER") or its registered assigns or
successors in
interest the sum of One Hundred Thousand Dollars ($100,000),
together with any
accrued and unpaid interest hereon, on April 29, 2008 (the
"MATURITY DATE") if
not sooner paid.
Capitalized terms used herein without definition shall have
the
meanings ascribed to such terms in that certain Securities
Purchase Agreement
dated as of the date hereof between the Borrower and the Holder
(the "PURCHASE
AGREEMENT").
The following terms shall apply to this Note:
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ARTICLE I
INTEREST & AMORTIZATION
1.1 Interest Rate. Subject to Sections 4.11 and 5.6 hereof,
interest
payable on this Note shall accrue at a rate per annum (the
"Interest Rate")
equal to the "prime rate" published in The Wall Street Journal
from time to
time, plus two percent (2.00%). The prime rate shall be
increased or decreased
as the case may be for each increase or decrease in the prime
rate in an amount
equal to such increase or decrease in the prime rate; each
change to be
effective as of the day of the change in such rate. Interest
shall be (i)
calculated on the basis of a 360 day year and payable monthly,
in arrears,
commencing on June 1, 2005 and on the first business day of each
consecutive
calendar month thereafter until the Maturity Date (and on the
Maturity Date),
whether by acceleration or otherwise (each, a "REPAYMENT
DATE").
1.2 Minimum Monthly Principal Payments. Amortizing payments of
the
aggregate principal amount outstanding under this Note at any
time (the
"PRINCIPAL AMOUNT") shall begin on November 1, 2005 and shall
recur on the first
business day of each succeeding month thereafter until the
Maturity Date (each,
an "AMORTIZATION DATE"). Subject to Article 3 below, beginning
on the first
Amortization Date, the Borrower shall make monthly payments to
the Holder on
each Repayment Date, each in the amount of $2,380.95 (the
"MONTHLY PRINCIPAL
AMOUNT"), together with any accrued and unpaid interest to date
on such portion
of the Principal Amount (as defined below) plus any and all
other amounts which
are then owing under this Note, the Purchase Agreement or any
other Related
Agreement but have not been paid (the Monthly Principal Amount,
together with
such accrued and unpaid interest and such other amounts,
collectively, the
"MONTHLY AMOUNT"). Any Principal Amount that remains outstanding
on the Maturity
Date shall be due and payable on the Maturity Date.
ARTICLE II
CONVERSION REPAYMENT
2.1 Payment of Monthly Amount in Cash or Common Stock. (a) If
the
Monthly Amount is required to be paid in shares of Common Stock
(as defined
below) pursuant to Section 2.1(b), each month by the fifth (5th)
business day
prior to each Amortization Date (the "NOTICE DATE"), the Holder
shall, subject
to Section 2.2 below and the other provisions of this Note,
deliver to Borrower
a written notice in the form of Exhibit B attached hereto
converting the Monthly
Amount payable on the next Amortization Date or Repayment Date,
as the case may
be, into freely tradable unrestricted shares of common stock of
EPXR ("EPXR
Common Stock") or, following the satisfaction of each of the
conditions set
forth in clause (i) of Section 2.2 below, into freely tradable
unrestricted
shares of common stock of VOXX ("VOXX Common Stock") (EPXR
Common Stock and VOXX
Common Stock, collectively, the "Common Stock")(each, a
"REPAYMENT NOTICE"). If
a Repayment Notice is not delivered by the Holder on or before
the applicable
Notice Date for such Amortization Date (or is not required to be
delivered in
accordance with Section 2.1(b)), then the Borrower shall pay the
Monthly Amount
due on such Amortization Date in cash. Any portion of the
Monthly Amount paid in
cash on an Amortization Date or Repayment Date, as the case may
be, shall be
paid to the Holder in an amount equal to 102% of the principal
portion of the
Monthly Amount otherwise due and owing to Holder on such
Amortization Date or
Repayment Date. If the Holder converts all or a portion of the
Monthly Amount in
shares of Common Stock as provided herein, the number of such
shares to be
issued by the Borrower to the Holder on such Amortization Date
or Repayment
Date, as the case may be, shall be the number determined by
dividing (x) the
portion of the Monthly Amount to be paid in shares of Common
Stock, by (y) the
then applicable Fixed Conversion Price. For purposes hereof, the
"FIXED
CONVERSION PRICE" shall, subject to further adjustment as
provided herein, mean
(x) in the case of a conversion into EPXR Common Stock, $1.00
and (y) in the
case of a conversion into VOXX Common Stock on or after the date
of the
consummation of an initial public offering of the VOXX Common
Stock (the "VOXX
IPO Date"), a price equal to 85% of the offering price of the
VOXX Common Stock
on the VOXX IPO Date (after giving effect thereto).
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(b) Monthly Amount Conversion Guidelines. Subject to Sections
2.1(a),
2.2, and 3.2 hereof, the Holder shall convert all or a portion
of the Monthly
Amount due on each Repayment Date in shares of Common Stock if
the average
closing price of the Common Stock as reported by Bloomberg, L.P.
on the
Principal Market for the five (5) trading days immediately
preceding such
Repayment Date was greater than or equal to 110% of the Fixed
Conversion Price,
provided, however, that such conversions shall not exceed twenty
five percent
(25%) of the aggregate dollar trading volume of the Common Stock
for the five
(5) day trading period immediately preceding delivery of a
Notice of Conversion
to the Borrower. Any part of the Monthly Amount due on a
Amortization Date or
Repayment Date, as the case may be, that the Holder has not
converted into
shares of Common Stock shall be paid by the Borrower in cash on
such
Amortization Date or Repayment Date. Any part of the Monthly
Amount due on such
Amortization Date or Repayment Date which must be paid in cash
(as a result of
the closing price of the Common Stock on one or more of the five
(5) trading
days preceding the applicable Amortization Date or Repayment
Date being less
than 110% of the Fixed Conversion Price) shall be paid in cash
at the rate of
102% of the Monthly Amount otherwise due on such Amortization
Date or Repayment
Date, within three (3) business days of the applicable
Amortization Date or
Repayment Date.
2.2 No Effective Registration. Notwithstanding anything to
the
contrary herein, unless the Holder, in its sole discretion,
shall request
otherwise, none of the Borrower's obligations to pay the Monthly
Amount to the
Holder may be converted into VOXX Common Stock or EPXR Common
Stock unless and
until (i) in the case of conversion into VOXX Common Stock,
either (I) (a) VOXX
shall have consummated an initial public offering, (b) VOXX
Common Stock shall
be publicly traded on a nationally recognized exchange; and (c)
the shares
underlying the conversion of this Note into VOXX Common Stock
pursuant to the
terms hereof shall have been registered on an effective, current
Registration
Statement (as defined in the Registration Rights Agreement) or
(II) an exemption
from registration of the EPXR Common Stock (with respect to the
resale of such
common stock) is available to pursuant to Rule 144 of the
Securities Act; (ii)
in the case of conversion into EPXR Common Stock, (a) the shares
underlying the
conversion of this Note into EPXR Common Stock pursuant to the
terms hereof
shall have been registered on an effective, current Registration
Statement; or
(b) an exemption from registration of the EPXR Common Stock
(with respect to the
resale of such common stock) is available to pursuant to Rule
144 of the
Securities Act and (III) in each of the foregoing cases, no
Event of Default
hereunder or under any Related Agreement exists and is
continuing, unless such
Event of Default is cured within any applicable cure period or
is otherwise
waived in writing by the Holder in whole or in part at the
Holder's option.
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2.3 Optional Redemption in Cash. The Borrower will have the
option of
prepaying this Note ("OPTIONAL REDEMPTION") by paying to the
Holder a sum of
money equal to one hundred thirty percent (130%) of the
outstanding principal
amount of this Note at the time of prepayment, together with
accrued but unpaid
interest thereon and any and all other sums due, accrued or
payable to the
Holder arising under this Note, the Purchase Agreement or any
Related Agreement
(the "REDEMPTION AMOUNT") outstanding on the day written notice
of redemption
(the "NOTICE OF REDEMPTION") is given to the Holder. The Notice
of Redemption
shall specify the date for such Optional Redemption (the
"REDEMPTION PAYMENT
DATE") which date shall be seven (7) business days after the
date of the Notice
of Redemption (the "REDEMPTION PERIOD"). A Notice of Redemption
shall not be
effective with respect to any portion of this Note for which the
Holder has a
pending election to convert pursuant to Section 3.1, or for
conversions
initiated or made by the Holder pursuant to Section 3.1 during
the Redemption
Period. The Redemption Amount shall be determined as if such
Holder's conversion
elections had been completed immediately prior to the date of
the Notice of
Redemption. On the Redemption Payment Date, the Redemption
Amount must be paid
in good funds to the Holder. In the event the Borrower fails to
pay the
Redemption Amount on the Redemption Payment Date as set forth
herein, then such
Redemption Notice will be null and void.
ARTICLE III
CONVERSION RIGHTS
3.1. Holder's Conversion Rights. The Holder shall have the
right, but
not the obligation, to convert at any time all or any portion of
the then
aggregate outstanding principal amount of this Note, together
with interest and
fees due hereon, into shares of Common Stock subject to the
terms and conditions
set forth in this Article III. The Holder may exercise such
right by delivery to
the Borrower of a written notice of conversion not less than one
(1) day prior
to the date upon which such conversion shall occur.
63.1 3.2 This Section left intentionally blank.
63.2
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63.3 3.3 Mechanics of Holder's Conversion. (a) In the event
that
the Holder elects to convert this Note into Common Stock, the
Holder shall give
notice of such election by delivering an executed and completed
notice of
conversion ("NOTICE OF CONVERSION") to the Borrower and such
Notice of
Conversion shall provide a breakdown in reasonable detail of the
Principal
Amount, accrued interest and fees being converted. On each
Conversion Date (as
hereinafter defined) and in accordance with its Notice of
Conversion, the Holder
shall make the appropriate reduction to the Principal Amount,
accrued interest
and fees as entered in its records and shall provide written
notice thereof to
the Borrower within two (2) business days after the Conversion
Date. Each date
on which a Notice of Conversion is delivered or telecopied to
the Borrower in
accordance with the provisions hereof shall be deemed a
Conversion Date (the
"CONVERSION DATE"). A form of Notice of Conversion to be
employed by the Holder
is annexed hereto as Exhibit A.
63.4 (b) Pursuant to the terms of the Notice of Conversion,
the
Borrower will issue instructions to the transfer agent
accompanied by an opinion
of counsel within two (2) business day of the date of the
delivery to Borrower
of the Notice of Conversion and shall cause the transfer agent
to transmit the
certificates representing the Conversion Shares to the Holder by
crediting the
account of the Holder's designated broker with the Depository
Trust Corporation
("DTC") through its Deposit Withdrawal Agent Commission ("DWAC")
system within
three (3) business days after receipt by the Borrower of the
Notice of
Conversion (the "DELIVERY DATE"). In the case of the exercise of
the conversion
rights set forth herein the conversion privilege shall be deemed
to have been
exercised and the Conversion Shares issuable upon such
conversion shall be
deemed to have been issued upon the date of receipt by the
Borrower of the
Notice of Conversion. The Holder shall be treated for all
purposes as the record
holder of such Common Stock, unless the Holder provides the
Borrower written
instructions to the contrary.
3.4 Conversion Mechanics.
(a) The number of shares of Common Stock to be issued upon
each
conversion of this Note shall be determined by dividing that
portion of the
principal and interest and fees to be converted, if any, by the
then applicable
Fixed Conversion Price. In the event of any conversions of
outstanding principal
amount under this Note in part pursuant to this Article III,
such conversions
shall be deemed to constitute conversions of outstanding
principal amount
applying to Monthly Amounts for the remaining Amortization Dates
in
chronological order.
(b) The Fixed Conversion Price and number and kind of shares or
other
securities to be issued upon conversion is subject to adjustment
from time to
time upon the occurrence of certain events, as follows:
A. Stock Splits, Combinations and Dividends. If the shares of
Common
Stock are subdivided or combined into a greater or smaller
number of shares of
Common Stock, or if a dividend is paid on the Common Stock in
shares of Common
Stock, the Fixed Conversion Price, , shall be proportionately
reduced in case of
subdivision of shares or stock dividend or proportionately
increased in the case
of combination of shares, in each such case by the ratio which
the total number
of shares of Common Stock outstanding immediately after such
event bears to the
total number of shares of Common Stock outstanding immediately
prior to such
event.
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B. During the period the conversion right exists, the Borrower
will
reserve from its authorized and unissued Common Stock a
sufficient number of
shares to provide for the issuance of Common Stock upon the full
conversion of
this Note. The Borrower represents that upon issuance, such
shares will be duly
and validly issued, fully paid and non-assessable. The Borrower
agrees that its
issuance of this Note shall constitute full authority to its
officers, agents,
and transfer agents who are charged with the duty of executing
and issuing stock
certificates to execute and issue the necessary certificates for
shares of
Common Stock upon the conversion of this Note.
C. Share Issuances. Subject to the provisions of this Section
3.4, if
the Borrower shall (x) in the case of EPXR Common Stock, at any
time prior to
the conversion or repayment in full of the Principal
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