THE
SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, OR APPLICABLE STATE SECURITIES
LAWS. THE SECURITIES MAY NOT BE OFFERED FOR SALE, SOLD, TRANSFERRED
OR ASSIGNED (I) IN THE ABSENCE OF (A) AN EFFECTIVE REGISTRATION
STATEMENT FOR THE SECURITIES UNDER THE SECURITIES ACT OF 1933, AS
AMENDED, OR APPLICABLE STATE SECURITIES LAWS OR (B) AN OPINION OF
COUNSEL, IN A GENERALLY ACCEPTABLE FORM, THAT REGISTRATION IS NOT
REQUIRED UNDER SAID ACT OR APPLICABLE STATE SECURITIES LAWS OR (II)
UNLESS SOLD PURSUANT TO RULE 144 UNDER SAID ACT. NOTWITHSTANDING
THE FOREGOING, THE SECURITIES MAY BE PLEDGED IN CONNECTION WITH A
BONA FIDE MARGIN ACCOUNT OR OTHER LOAN OR FINANCING ARRANGEMENT
SECURED BY THE SECURITIES. ANY TRANSFEREE OF THIS NOTE SHOULD
CAREFULLY REVIEW THE TERMS OF THIS NOTE. THE PRINCIPAL AMOUNT
REPRESENTED BY THIS NOTE MAY BE LESS THAN THE AMOUNTS SET FORTH ON
THE FACE HEREOF.
INTERCLICK,
INC.
6% SENIOR PROMISSORY
NOTE
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$650,000.00
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September 26, 2008
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FOR VALUE RECEIVED interCLICK, Inc., a Delaware
corporation (the “ Company ”), promises to pay
to GRQ Consultants, Inc. 401(k) (the “ Holder
”), the principal amount of Six Hundred Fifty Thousand
Dollars ($650,000.00), or such lesser amount as shall equal the
outstanding principal amount hereof, together with simple interest
from the date of this Note on the unpaid principal balance at a
rate equal to six percent (6%) per annum, computed on the basis of
the actual number of days elapsed and a year of 365 days. All
unpaid principal, together with any then accrued but unpaid
interest and any other amounts payable hereunder, shall be due and
payable on December 31, 2008 (the “ Maturity Date
”). This Note is one of a series of up to $1,300,000
aggregate principal amount of notes of like tenor (the “
Notes ”).
The following is a statement of the rights of
the Holder of this Note and the conditions to which this Note is
subject, and to which the Holder, by the acceptance of this Note,
agrees:
(a) For purposes of this Note, an “ Event
of Default ” means:
(i) the Company shall default in the payment of
interest and/or principal on this Note; or
(ii) the Company shall fail to materially perform
any covenant, term, provision, condition, agreement or obligation
of the Company under this Note (other than for non-payment) and
such failure shall continue uncured for a period of ten (10)
business days after notice from the Holder of such failure;
or
(iii) the Company shall (1) become insolvent; (2)
admit in writing its inability to pay its debts generally as they
mature; (3) make an assignment for the benefit of creditors or
commence proceedings for its dissolution; or (4) apply for or
consent to the appointment of a trustee, liquidator or receiver for
it or for a substantial part of its property or business;
or
(iv) a trustee, liquidator or receiver shall be
appointed for the Company or for a substantial part of its property
or business without its consent and shall not be discharged within
thirty (30) days after such appointment; or
(v) any governmental agency or any court of
competent jurisdiction at the insistence of any governmental agency
shall assume custody or control of the whole or any substantial
portion of the properties or assets of the Company and shall not be
dismissed within thirty (30) days thereafter; or
(vi) the Company shall sell or otherwise transfer
all or substantially all of its assets; or
(vii) bankruptcy, reorganization, insolvency or
liquidation proceedings or other proceedings, or relief under any
bankruptcy law or any law for the relief of debt shall be
instituted by or against the Company and, if instituted against the
Company shall not be dismissed within thirty (30) days after such
institution, or the Company shall by any action or answer approve
of, consent to, or acquiesce in any such proceedings or admit to
any material allegations of, or default in answering a petition
filed in any such proceeding; or
(viii) the Company shall be in material default of any
of its indebtedness that gives the holder thereof the right to
accelerate such indebtedness.
(b) Upon the occurrence of an Event of Default, the
entire indebtedness with accrued interest thereon due under this
Note shall, at the option of the Holder, be immediately due and
payable without notice. Failure to exercise such option shall not
constitute a waiver of the right to exercise the same in the event
of any subsequent Event of Default.
(c) Upon the occurrence of an Event of Default,
this Note shall retroactively bear interest at the rate of twenty
four percent (24%) per annum from the issue date of the Note.
Furthermore, upon the occurrence of an Event of Default and on each
30-day anniversary thereof the Company shall pay to the Holder
$20,000 in cash to pay down sums owed on this Note.
2. Seniority . The indebtedness evidenced by this Note is
hereby expressly senior, in right of payment to the prior payment
in full of all of the Company’s existing and future
Subordinated Indebtedness. As used in this Note, the term “
Subordinated Indebtedness ” shall mean the principal
of and unpaid accrued interest on (i) indebtedness of the Company
and (ii) any such indebtedness or any debentures, notes or other
evidence of indebtedness issued in exchange for such Subordinated
Indebtedness, or any indebtedness arising from the satisfaction of
such Subordinated Indebtedness by a guarantor.
3. Security Interest . This Note is secured by a security interest
granted to the Holder pursuant to a Stock Pledge Agreement dated
the date hereof (the “ Pledge Agreement ”), as
delivered by the Company to the Holder. The Company acknowledges
and agrees that should a proceeding under any bankruptcy or
insolvency law be commenced by or against the Company, or if any of
the Pledged Stock (as defined in the Pledge Agreement) should
become the subject of any bankruptcy or insolvency proceeding, then
the Holder shall be entitled to, among other relief to which the
Holder may be entitled under this Note and any other agreement to
which the Company and the Holder are parties (collectively,
“Loan Documents”) and/or applicable law, an order from
the court granting immediate relief from the automatic stay
pursuant to 11 U.S.C. Section 362 to permit the Holder to exercise
all of its rights and remedies pursuant to the Loan Documents
and/or applicable law. THE COMPANY EXPRESSLY WAIVES THE BENEFIT OF
THE AUTOMATIC STAY IMPOSED BY 11 U.S.C. SECTION 362. FURTHERMORE,
THE COMPANY EXPRESSLY ACKNOWLEDGES AND AGREES THAT NEITHER 11
U.S.C. SECTION 362 NOR ANY OTHER SECTION OF THE BANKRUPTCY CODE OR
OTHER STATUTE OR RULE (INCLUDING, WITHOUT LIMITATION, 11 U.S.C.
SECTION 105) SHALL STAY, INTERDICT, CONDITION, REDUCE OR INHIBIT IN
ANY WAY THE ABILITY OF THE HOLDER TO ENFORCE ANY OF ITS RIGHTS AND
REMEDIES UNDER THE LOAN DOCUMENTS AND/OR APPLICABLE LAW. The
Company hereby consents to any motion for relief from stay that may
be filed by the Holder in any bankruptcy or insolvency proceeding
initiated by or against the Company and, further, agrees not to
file any opposition to any motion for relief from stay filed by the
Holder. The Company represents, acknowledges and agrees that this
provision is a specific and material aspect of the Loan Documents,
and that the Holder would not agree to the terms of the Loan
Documents if this waiver were not a part of this Note. The Company
further represents, acknowledges and agrees that this waiver is
knowingly, intelligently and voluntarily made, that neither the
Holder nor any person acting on behalf of the Holder has made any
representations to induce this waiver, that the Company has been
represented (or has had the opportunity to he represented) in the
signing of this Note and the Loan Documents and in the making of
this waiver by independent legal counsel selected by the Company
and that the Company has discussed this waiver with
counsel.
4. Future Indebtedness . Without the approval of the Holder, the
Company agrees that from the date hereof until the first date on
which all principal and accrued interest on the Note are paid in
full, the Company shall not incur, or suffer to exist any
Indebtedness or Liens other than Permitted Liens. Terms not
described in this paragraph 4 are defined on Schedule A.
5. Prepayment . The Company may prepay this Note at any time,
in whole or in part, provided any such prepayment will be applied
first to the payment of expenses due under this Note, second to
interest accrued on this Note and third, if the amount of
prepayment exceeds the amount of all such expenses and accrued
interest, to the payment of principal of this Note. In addition, at
such time that the Company shall sell the Pledged Stock
beneficially owned by the Company to any third party, to the extent
permitted
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