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EXHIBIT 4.13.3
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 LAURUS MASTER
FUND, LTD., c/o M&C Corporate Services
Limited, P.O. Box 309 GT, Ugland House,
South Church Street, George Town, Grand
Cayman, Cayman Islands, Fax:
345-949-8080 (the "HOLDER") or its
registered assigns or successors in interest
the sum of Five Million Five Hundred
Thousand Dollars ($5,500,000), 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 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
$130,952.38 (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 a Amortization Date or Repayment
Date, as the case may be, shall be paid
to the Holder an amount equal to 102% of
the principal portion of the Monthly
Amount 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, absent the express written
consent of the Holder, none of the
Borrower's obligations 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 Voxx 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 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.
22.14 3.2 Conversion Limitation. Notwithstanding anything
contained
herein to the contrary, the Holder shall
not be entitled to convert pursuant to
the terms of this Note an amount that would
be convertible into that number of
Conversion Shares which would exceed the
difference between the number of shares
of Common Stock beneficially owned by such
Holder or issuable upon exercise of
warrants held by such Holder and 4.99% of
the outstanding shares of Common Stock
of the Borrower. For the purposes of the
immediately preceding sentence,
beneficial ownership shall be determined in
accordance with Section 13(d) of the
Exchange Act and Regulation 13d-3
thereunder. The Holder may void the Conversion
Share limitation described in this Section
3.2 upon 75 days prior notice to the
Borrower or without any notice requirement
upon an Event of Default.
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22.15
22.16 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.
22.17 (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.
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(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 or the
Conversion Price, as the case may be,
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.
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 Borr
