Attached files
file | filename |
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EX-31 - Sebring Software, Inc. | ex31.htm |
EX-32 - Sebring Software, Inc. | ex32.htm |
EX-10.12 - Sebring Software, Inc. | ex10-12.htm |
10-Q - Sebring Software, Inc. | sumotext10q022810.htm |
Exhibit
10.11
AMENDED
AND RESTATED
PROMISSORY
NOTE
$150,000
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March
25, 2010 to be Effective February 17,
2010
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FOR VALUE
RECEIVED, SUMOTEXT
Incorporated, a Nevada Corporation (the “Company”),
having an address of 2100 Riverdale, Suite 200, Little Rock, Arkansas, 72202,
hereby promises to pay to the order of Steve Bova, and/or assigns
(the “Holder”),
at the offices of Holder at 10 Riverglen, Little Rock, Arkansas, 72202 or
such other place as may be designated by Holder to the Company in writing, the
aggregate principal amount of One Hundred and Fifty Thousand
Dollars ($150,000), together with interest on the unpaid principal amount
hereof, upon the terms and conditions hereinafter set forth.
1.
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Loan Amount. This Amended and
Restated Promissory Note (this “Note”,
“Promissory
Note” or “Agreement”)
, amends, restates and supersedes a Convertible Promissory Note entered
into between the Company and Holder on February 17, 2010, and evidences
the loan of One Hundred and Fifty Thousand Dollars ($150,000), from
the Holder to the Company (hereinafter referred to as the “Loan”
or the “Principal”).
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2.
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Payment Terms. The Company promises to pay
to Holder the balance of Principal, together with accrued and unpaid
interest, on February 17, 2012 (the “Maturity
Date”), unless this Note is earlier prepaid as herein
provided. All payments hereunder shall be made in lawful money of
the United States of America. Payment shall be credited first to the
accrued interest then due and payable and the remainder to
Principal.
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3.
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Interest. Interest on the outstanding
portion of Principal of this Note shall accrue at a rate of eight percent
(8%) per annum, and be payable quarterly in arrears. All
computations of interest shall be made on the basis of a 360-day year for
actual days elapsed. Such interest shall accrue and be paid upon the
Maturity Date of the Loan.
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a.
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Notwithstanding
any provision in this Note, the total liability for payments of interest
and payments in the nature of interest, including all charges, fees,
exactions, or other sums which may at any time be deemed to be interest,
shall not exceed the limit imposed by the usury laws of the State of
Arkansas or the applicable laws of the United States of America, whichever
shall be higher (the “Maximum
Rate”).
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b.
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In
the event the total liability for payments of interest and payments in the
nature of interest, including, without limitation, all charges, fees,
exactions or other sums which may at any time be deemed to be interest,
which for any month or other interest payment period exceeds the Maximum
Rate, all sums in excess of those lawfully collectible as interest for the
period in question (and without further agreement or notice by, among or
to the Holder the undersigned) shall be applied to the reduction of the
principal balance, with the same force and effect as though the
undersigned had specifically designated such excess sums to be so applied
to the reduction of the principal balance and the Holder had agreed to
accept such sums as a premium-free prepayment of principal; provided,
however, that the Holder may, at any time and from time to time, elect, by
notice in writing to the undersigned, to waive, reduce or limit the
collection of any sums in excess of those lawfully collectible as interest
rather than accept such sums as a prepayment of the principal
balance. The undersigned does not intend or expect to pay nor
does the Holder intend or expect to charge, accept or collect any interest
under this Note greater than the Maximum
Rate.
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c.
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If
any payment of principal or interest on this Note shall become due on a
Saturday, Sunday or any other day on which national banks are not open for
business, such payment shall be made on the next succeeding business
day.
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-1-
4.
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Warrants.
In connection with Holder agreeing to be bound by the terms and conditions
of this Note, the Company agrees to grant the Holder warrants to purchase
an aggregate of 300,000 shares of the Company’s common stock at an
exercise price of $0.50 per share, which warrants shall have a term of two
years and be evidenced by the Warrant Agreement attached hereto as Exhibit A (the “Warrant”).
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5.
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Redemption.
This Note may be redeemed by the Company by payment of the entire
Principal and interest outstanding under this Note in cash to
Holder.
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a.
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This
Note may be prepaid in whole or in part at any time without
penalty.
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b.
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Any
partial prepayment shall be applied first to any accrued interest and then
to any principal Loan amount outstanding.
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c.
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This
Note and the repayment hereof will be senior to all of the Company’s other
privately held outstanding notes (“Seniority”),
and the Company shall be required to take prompt action to obtain a
confirmation of such Seniority from its current note holders following the
parties’ execution of this Note.
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6.
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Representations and Warranties
of the Company. The Company represents and warrants to
Holder as follows:
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a.
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The
execution and delivery by the Company of this Note (i) are within the
Company’s corporate power and authority, and (ii) have been duly
authorized by all necessary corporate action. Further, the
undersigned is a duly authorized representative of the Company and has
been authorized by a resolution of the Board of Directors of the Company
to exercise any and all documents necessary to effectuate the transaction
contemplated hereby.
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b.
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This
Note is a legally binding obligation of the Company, enforceable against
the Company in accordance with the terms hereof, except to the extent that
(i) such enforceability is limited by bankruptcy, insolvency,
reorganization, moratorium or other laws relating to or affecting
generally the enforcement of creditors’ rights, and (ii) the availability
of the remedy of specific performance or in injunctive or other equitable
relief is subject to the discretion of the court before which any
proceeding therefore may be
brought.
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7.
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Representations,
Warranties and Covenants of Holder. Holder represents and warrants
to the Company, and agrees, as follows (collectively the “Representations”):
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a.
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The
Warrant and any shares of common stock issuable in connection with the
exercise of the Warrant (“Warrant
Shares”) are being acquired by Holder for its own account for
investment and not with a view to, or for sale in connection with, any
distribution thereof.
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b.
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Holder
is either an “accredited
investor” as such term is defined under Rule 501 of the Securities
Act of 1933, as amended (the “Act”);
and/or Holder has thoroughly read, reviewed, had a chance to ask questions
to the Company regarding, and has all of Holder’s questions answered
sufficiently, the Company’s Form 10-K, Form 10-Q and Form 8-K filings on
the Securities and Exchange Commission’s Edgar filing website (www.sec.gov), including the risk factors,
description of business operations, unaudited and audited financial
information, results of operations and other disclosures therein (the
“Filings”). In
connection with the Filings or otherwise, the Holder has reviewed and has
access to similar information regarding the Company as would be found in a
Registration Statement under the Act, and is familiar with the Company,
its business operations, results of operations and risk factors regarding
Holders investment herein. Holder further represents to the
Company that Holder does not need a Purchaser Representative in connection
with the investment in the Note or Common
Stock.
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c.
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Holder
has sufficient knowledge and experience in financial and business matters
and is capable of evaluating the risks and merits of Holder’s investment
in the Company; Holder believes that Holder has received or had access to
all information Holder considers necessary or appropriate to make an
informed investment decision with respect to this Note; and Holder is able
financially to bear the risk of losing Holder’s full investment in this
Note.
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d.
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Holder
understands that the Warrant and the Warrant Shares have not been
registered under the Securities Act of 1933, as amended (the “Securities
Act”) or registered or qualified under any the securities laws of
any state or other jurisdiction, are “restricted securities,”
and cannot be resold or otherwise transferred unless they are registered
under the Securities Act, and registered or qualified under any other
applicable securities laws, or an exemption from such registration and
qualification is available. Prior to any proposed transfer of the Warrant
or the Warrant Shares, Holder shall, among other things, give written
notice to the Company of its intention to effect such transfer,
identifying the transferee and describing the manner of the proposed
transfer and, if requested by the Company, accompanied by (i) investment
representations by the transferee similar to those made by Holder in this
Section 7 and (ii) an opinion of counsel satisfactory to the Company to
the effect that the proposed transfer may be effected without registration
under the Securities Act and without registration or qualification under
applicable state or other securities laws. Each certificate issued to
evidence the Warrant and the Warrant Shares shall bear a legend as
follows:
"The
securities represented by this certificate have not been registered under
the Securities Act of 1933 or any state securities act. The
securities have been acquired for investment and may not be sold,
transferred, pledged or hypothecated unless (i) they shall have been
registered under the Securities Act of 1933 and any applicable state
securities act, or (ii) the corporation shall have been furnished with an
opinion of counsel, satisfactory to counsel for the corporation, that
registration is not required under any such acts."
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8.
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Certain
Waivers by the Company.
Except as expressly provided otherwise in this Note, the Company and every
endorser or guarantor, if any, of this Note waive presentment, demand,
notice, protest and all other demands and notices in connection with the
delivery, acceptance, performance, default or enforcement of this Note,
and assent to any extension or postponement of the time of payment or any
other indulgence, to any substitution, exchange or release of collateral
available to Holder, if any, and to the addition or release of any other
party or person primarily or secondarily
liable.
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9.
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Assignment
by Holder. If and
whenever this Note shall be assigned and transferred, or negotiated,
including transfers to substitute or successor trustees, the holder hereof
shall be deemed the “Holder” for all purposes
under this Note.
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10.
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Amendment. This Note may not be changed
orally, but only by an agreement in writing, signed by the party against
whom enforcement of any waiver, change, modification or discharge is
sought.
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11.
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Costs
and Fees. Anything
else in this Note to the contrary notwithstanding, in any action arising
out of this Agreement, the prevailing party shall be entitled to collect
from the non-prevailing party all of its attorneys’ fees. For
the purposes of this Note, the party who receives or is awarded a
substantial portion of the damages or claims sought in any proceeding
shall be deemed the “prevailing” party and
attorneys’ fees shall mean the reasonable fees charged by an attorney or a
law firm for legal services and the services of any legal assistants, and
costs of litigation, including, but not limited to, fees and costs at
trial and appellate levels.
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12.
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Governing
Law. It is the
intention of the parties hereto that the terms and provisions of this Note
are to be construed in accordance with and governed by the laws of the
State of Arkansas, except as such laws may be preempted by any federal law
controlling the rate of interest which may be charged on account of this
Note.
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13.
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No
Third Party Benefit. The provisions and covenants
set forth in this Agreement are made solely for the benefit of the parties
to this Agreement and are not for the benefit of any other person, and no
other person shall have any right to enforce these provisions and
covenants against any party to this Agreement.
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14.
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Jurisdiction,
Venue and Jury Trial Waiver. The parties hereby consent and
agree that, in any actions predicated upon this Note, venue is properly
laid in Arkansas and that the Circuit Court in and for Little Rock,
Arkansas, shall have full subject matter and personal jurisdiction over
the parties to determine all issues arising out of or in connection with
the execution and enforcement of this Note.
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15.
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Interpretation. The term “Company”
as used herein in every instance shall include the Company’s successors,
legal representatives and assigns, including all subsequent grantees,
either voluntarily by act of the Company or involuntarily by operation of
law and shall denote the singular and/or plural and the masculine and/or
feminine and natural and/or artificial persons, whenever and wherever the
contexts so requires or properly applies. The term “Holder” as used herein
in every instance shall include the Holder’s successors, legal
representatives and assigns, as well as all subsequent assignees,
endorsees and holders of this Note, either voluntarily by act of the
parties or involuntarily by operation of law. Captions and
paragraph headings in this Note are for convenience only and shall not
affect its interpretation.
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16.
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WAIVER
OF JURY TRIAL. THE
COMPANY AND HOLDER HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE
THE RIGHT EITHER MAY HAVE TO TRIAL BY JURY IN RESPECT TO ANY LITIGATION
BASED HEREON, OR ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS NOTE AND
ANY AGREEMENT CONTEMPLATED TO BE EXECUTED IN CONJUNCTION HEREWITH, OR ANY
COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS, (WHETHER VERBAL OR
WRITTEN) OR ACTIONS OF EITHER PARTY. THE COMPANY ACKNOWLEDGES
THAT THIS WAIVER OF JURY TRIAL IS A MATERIAL INDUCEMENT TO THE HOLDER IN
EXTENDING CREDIT TO THE COMPANY, THAT THE HOLDER WOULD NOT HAVE EXTENDED
SUCH CREDIT WITHOUT THIS JURY TRIAL WAIVER, AND THAT THE COMPANY HAS BEEN
REPRESENTED BY AN ATTORNEY OR HAS HAD AN OPPORTUNITY TO CONSULT WITH AN
ATTORNEY IN CONNECTION WITH THIS JURY TRIAL WAIVER AND UNDERSTANDS THE
LEGAL EFFECT OF THIS WAIVER.
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17.
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Entire
Agreement. This Agreement constitutes the sole and only
agreement of the parties hereto and supersedes any prior understanding or
written or oral agreements between the parties respecting the subject
matter hereof.
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18.
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Effect
of Facsimile and Photocopied Signatures. This Agreement may be
executed in several counterparts, each of which is an
original. It shall not be necessary in making proof of this
Agreement or any counterpart hereof to produce or account for any of the
other counterparts. A copy of this Agreement signed by one
Party and faxed or scanned and emailed to another Party (as a PDF or
similar image file) shall be deemed to have been executed and delivered by
the signing Party as though an original. A photocopy or PDF of
this Agreement shall be effective as an original for all
purposes.
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[Remainder
of page left intentionally blank. Signature page
follows.]
-4-
IN WITNESS WHEREOF, the
undersigned have caused this Amended and Restated Promissory Note to be executed
and delivered by a duly authorized officer as of the date first above written,
to be effective as of the effective date set forth above.
SUMOTEXT
INCORPORATED
a
Nevada Corporation
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By:
/s/ Tim Miller
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Tim
Miller, President
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Holder:
/s/ Steve Bova
Steve
Bova
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