Exhibit 10.2
SENIOR SECURED PROMISSORY
NOTE
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Mountain View,
California
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FOR VALUE RECEIVED, the undersigned,
AdEx Media, Inc. , a Delaware corporation, with a principal
place of business at 883 North Shoreline Blvd. #A200, Mountain
View, California 94043 (the “ Maker ”), promises
to pay to Digital Equity Partners, LLC , (the
“ Holder ”) a Colorado limited liability company
with a principal place of business at , or such place as the Holder
may designate, the principal sum of Two Hundred Fifty Five Thousand
Dollars ($255,000.00) without interest thereon. This
promissory note (the “ Note ”) is being
delivered by Maker to Holder in partial consideration for
Maker’s purchase of the outstanding membership interests in
Digital Instructor, LLC (the “ Company ”)
pursuant to the terms of that certain Membership Interest Purchase
Agreement (the “ Purchase Agreement ”), dated
August 12, 2008, by and between Maker and the members of the
Company and as amended and pursuant to the terms of that Agreement
dated March 6, 2009 by and between Maker, Holder and the former
members of the Company (the “ Agreement ”).
Capitalized terms herein not otherwise defined shall have the
meanings ascribed to them in the Purchase Agreement.
1. The Principal
Amount . The principal balance of the Note, which is
outstanding and unpaid from time to time, is referred to as the
“ Principal Amount .”
2. Payment
. Subject to Section 5.2 of the Purchase
Agreement, the outstanding Principal Amount hereunder shall be due
and payable to Holder in the following amounts on the following
dates:
2.1
$52,500 on the earlier of (i) ninety days from February 12, 2009
and (ii) when such amount is declared due and payable by the Holder
upon or after the occurrence of an Acceleration Event (as defined
below);
2.2
$52,500 on the earlier of (i) one hundred eighty days from February
12, 2009 and (ii) when such amount is declared due and payable by
the Holder upon or after the occurrence of an Acceleration Event
(as defined below); and
2.3
$150,000 on the earlier of (i) February 12, 2010, (ii) when such
amount is declared due and payable by the Holder upon or after the
occurrence of an Acceleration Event (as defined below) and (iii)
when such amount is declared due and payable by Holder upon or
after the occurrence of Maker’s termination of Dennis
Hefter’s (“ Hefter ”) employment other
than for Cause prior to February 12, 2010. For purposes
of this Note, “ Cause ” shall mean a termination
of Hefter’s employment by Maker attributed to (i) the
repeated and willful failure of Hefter substantially to perform his
duties to Maker (other than any such failure due to physical or
mental illness) and such failure is not materially corrected within
10 Business Days of receipt by Hefter of written notice promptly
given by Maker after such material breach; (ii) conviction of, or
entering a plea of guilty or nolo contendere to, a felony involving
moral turpitude or dishonesty; (iii) intentional misconduct, gross
negligence or material misrepresentation by Hefter in the
performance of his duties to Maker which causes material harm to
Maker.
If any such date falls on a Saturday, Sunday or
a holiday, then such payment shall be made on the next succeeding
Business Day, as such term is defined in the Purchase
Agreement. All amounts payable hereunder shall be paid
by Maker in lawful money of the United States and in same day or
immediately available funds.
3. Acceleration
Events . This Note shall be subject to prepayment in advance of
the Maturity Date, at the option of the Holder with written notice
to the Maker, upon the occurrence of any of the following events
(each an “ Acceleration Event ”):
(i) the filing by Maker of a petition in bankruptcy,
either voluntary or involuntary, a petition for reorganization
arrangement or other relief under the United States Bankruptcy Act,
a voluntary petition for the appointment of a receiver or
comparab
