ex4-1.htm
EXHIBIT
4.1
THIS
NON-NEGOTIABLE CONVERTIBLE PROMISSORY NOTE (THIS “NOTE”) AND THE COMMON SHARES
ISSUABLE UPON CONVERSION OF THIS NOTE HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED. 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 OR AN OPINION OF COUNSEL REASONABLY SATISFACTORY TO
BIGSTRING CORPORATION THAT SUCH REGISTRATION IS NOT REQUIRED.
Principal
Amount: $175,000
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Issue
Date: August 25, 2008
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NON-NEGOTIABLE CONVERTIBLE
PROMISSORY NOTE
FOR VALUE RECEIVED, BIGSTRING
CORPORATION, a Delaware corporation (hereinafter called the “Borrower”), hereby
promises to pay to Dwight Lane Capital, LLC, a limited liability company with an
address of c/o TMRIB, LLC, 183 Madison Avenue, Suite #505, New York, NY 10016
(the “Holder”), without demand, the sum of One Hundred and Seventy-Five Thousand
Dollars ($175,000), with compound and unpaid interest thereon, on the earlier of
(i) January 26, 2009, or (ii) three (3) days after the date on which the
Borrower receives the Tax Credit (as such term is defined below) (the “Maturity
Date”). This Note may be prepaid in whole or in part at any time
without premium or penalty. The following additional terms shall
apply to this Non-Negotiable Convertible Promissory Note (this
“Note”):
ARTICLE
I
GENERAL
PROVISIONS
1.1 Payment Grace
Period. The Borrower shall have a three (3) business day grace
period to pay any monetary amounts due under this Note, after which grace period
a default interest rate of twenty-four percent (24%) per annum (the “Default
Interest Rate”) shall apply to the amounts owed hereunder. The
Default Interest Rate shall also apply to the amounts owed hereunder following
an uncured Event of Default (as defined in Article III below).
1.2 Origination
Fee. Within three (3) business days following the issuance
date of this Note, the Borrower shall pay to the Holder a fee in the amount of
Three Thousand Five Hundred Dollars ($3,500).
1.3 Interest
Rate. Interest payable on this Note shall accrue at the annual
rate of twelve percent (12%) and shall compound monthly. Accrued
interest will be payable in cash on the Maturity Date, unless the Holder
otherwise provides the Borrower with a Notice of
Conversion
(as defined below).
1.4 Security. As security for the due
performance and payment of the Borrower’s obligations under this Note, the
Borrower, to the extent permitted under applicable law, hereby grants to the
Holder a security interest in any and all amounts received by the Borrower as
part of the State of New Jersey’s Technology Business Tax Certificate Transfer
Program for the year ended December 31, 2008 (the “Tax
Credit”). Borrower warrants that upon receipt of the Tax Credit,
Borrower shall apply the Tax Credit first towards the full satisfaction of the
amounts due hereunder, prior to using the Tax Credit for any other
purpose.
ARTICLE
II
CONVERSION
RIGHTS
2.1 Conversion into the
Borrower’s Common Stock Upon an Event of Default.
(a) Upon
an Event of Default, the Holder shall have the right to convert the outstanding
and unpaid principal portion hereof and accrued interest hereon (the date of
giving of notice of conversion by the Holder being the “Conversion Date”) into
fully paid and nonassessable shares of the Borrower’s common stock, par value
$0.0001 per share (“Common Stock”), or any shares of capital stock of the
Borrower into which such Common Stock shall hereafter be changed or
reclassified, at the Conversion Price (as defined in Section
2.1(b)). Upon delivery to the Borrower of a completed Notice of
Conversion, a form of which is attached hereto as Exhibit A (the Notice
of Conversion”), the Borrower shall issue and deliver to the Holder within
twenty (20) business days after the Conversion Date that number of shares of
Common Stock in accordance with the foregoing.
(b) Subject
to adjustment as provided for in Section 2.1(c) hereof, the conversion price per
share of Common Stock shall be at a thirty percent (30%) discount to the fifteen
(15) day moving average following the reporting by the Borrower of an Event of
Default on a Form 8-K (the “Conversion Price”). In the event that the
Borrower does not report the Event of Default, the Conversion Price per share of
Common Stock shall be at a thirty percent (30%) discount to the moving average
of any fifteen (15) day period following the Event of Default selected by the
Holder. Cash will be paid in lieu of fractional shares upon
conversion.
(c) The
number and kind of shares or other securities to be issued upon conversion of
this Note shall be subject to adjustment from time to time upon the happening of
certain events while this conversion right remains outstanding, as
follows:
(i) Merger, Sale of Assets,
etc. If the Borrower at any time shall consolidate with or
merge into or sell or convey all or substantially all its assets to any other
corporation, this Note, as to the unpaid principal portion hereof and accrued
interest hereon, shall thereafter be deemed to evidence the right to purchase
such number and kind of shares or other securities and property as would have
been issuable or distributable on account of such consolidation, merger, sale or
conveyance, upon or with respect to the securities subject to the conversion or
purchase right immediately prior to such consolidation, merger, sale or
conveyance. The foregoing provision shall similarly apply to
successive transactions of a similar
nature by
any such successor or purchaser. Without limiting the generality of
the foregoing, the anti-dilution provisions of this section shall apply to such
securities of such successor or purchaser or surviving entity of the surviving
corporation after any such consolidation, merger, sale or
conveyance.
(ii) Reclassification,
etc. If the Borrower at any time shall, by reclassification or
otherwise, change the Common Stock into the same or a different number of
securities of any class or classes of the Borrower’s capital stock that may be
issued or outstanding, this Note, as to the unpaid principal amount hereof and
accrued interest hereon, shall thereafter be deemed to evidence the right to
purchase an adjusted number of such securities and kind of securities as would
have been issuable as the result of such change with respect to the shares of
Common Stock subject to the conversion of this Note immediately prior to such
reclassification or other change.
(d) The
Borrower represents that upon issuance, the shares of Common Stock will be duly
and validly issued, fully paid and non-assessable. The Borrower
agrees that the 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.
2.2 No Fractional
Shares. No fractional shares of Common Stock shall be issued
upon conversion of this Note, but an adjustment in cash will be made, in respect
of any fraction of a share (which will be valued based on the Conversion Price)
which would otherwise be issuable upon the surrender of this Note for conversion
and a check in the amount of the value of such fractional share shall be
delivered to the Holder.
ARTICLE
III
EVENTS
OF DEFAULT
The
occurrence of any of the following events of default (each an “Event of
Default”) shall make, at the option of the Holder, all sums of principal and
accrued interest then remaining unpaid hereon and all other amounts payable
hereunder immediately due and payable, upon demand, without presentment or grace
period, all of which hereby are expressly waived, except as set forth
below:
3.1 Failure to Pay Principal or
Interest. The Borrower fails to pay any monetary amounts due
under this Note when due and such failure continues for a period of three (3)
business days after the due date. The three (3) business day period
described in this Section 3.1 is the same three (3) business day period
described in Section 1.1 hereof.
3.2 Receiver or
Trustee. The Borrower shall make an assignment for the benefit
of creditors, or apply for or consent to the appointment of a receiver or
trustee for it or for a substantial part of its property or business; or such a
receiver or trustee shall otherwise be appointed without the consent of the
Borrower.
3.3 Judgments. Any
money judgment, writ or similar final process shall be entered or
filed
against the Borrower or any of its property or other assets for more than
$25,000, and shall remain unpaid, unvacated, unbonded or unstayed for a period
of ten (10) days.
3.4 Bankruptcy. Bankruptcy,
insolvency, reorganization or liquidation proceedings or other proceedings or
relief under any bankruptcy law or any law, or the issuance of any notice in
relation to such event, for the relief of debtors shall be instituted by or
against the Borrower and, if instituted against the Borrower, are not dismissed
within fifteen (15) days of initiation.
3.5 Non-Payment. A
default by the Borrower under any one or more obligations in an aggregate
monetary amount in excess of $25,000 for more than fifteen (15) days after the
due date, unless the Borrower is contesting the validity of such obligation in
good faith and has segregated cash funds equal to not less than one-half of the
disputed amount. The
segregated cash funds shall not include any proceeds from the Tax Credit, unless
the Note is first repaid to the Investors.
ARTICLE
IV
MISCELLANEOUS
4.1 Waiver. No
failure or delay on the part of the Holder hereof in the exercise of any power,
right or privilege hereunder shall operate as a waiver thereof, nor shall any
single or partial exercise of any such power, right or privilege preclude other
or further exercise thereof or of any other right, power or
privilege. All rights and remedies existing hereunder are cumulative
to, and not exclusive of, any rights or remedies otherwise
available.
4.2 Notices. All
notices, demands, requests, consents, approvals, and other communications
required or permitted hereunder shall be in writing and, unless otherwise
specified herein, shall be (a) personally served, (b) deposited in the mail,
registered or certified, return receipt requested, postage prepaid, (c)
delivered by a reputable overnight courier service with charges prepaid, or (d)
transmitted by hand delivery, telegram, or facsimile, addressed as set forth
below or to such other address as such party shall have specified most recently
by written notice. Any notice or other communication required or
permitted to be given hereunder shall be deemed effective (i) upon hand delivery
or delivery by facsimile, with accurate confirmation generated by the
transmitting facsimile machine, at the address or number designated below (if
delivered on a business day during normal business hours where such notice is to
be received), or the first business day following such delivery (if delivered
other than on a business day during normal business hours where such notice is
to be received), (ii) on the first business day following the date deposited
with an overnight courier service with charges prepaid, or (iii) on the third
business day following the date of mailing pursuant to subpart (b) above, or
upon actual receipt of such mailing, whichever shall first occur. The
addresses for such communications shall be: (i) if to the Borrower to: BigString
Corporation, 3 Harding Road, Suite E, Red Bank, New Jersey 07701, Attn: Darin M.
Myman, President and Chief Executive Officer, facsimile no.: (732) 741-2842,
with a copy by facsimile only to: Giordano, Halleran & Ciesla, P.C., 125
Half Mile Road, P.O. Box 190, Middletown, New Jersey 07748, Attn: Paul T.
Colella, Esq., facsimile no.: (732) 224-6599, and (ii) if to the Holder, to the
name and address set forth on the front page of this Note, facsimile no. (212)
687-2457.
4.3 Amendment. No
amendment or modification may be made to this Note unless in writing and signed
by both the Borrower and the Holder. The term “Note” and all
reference thereto, as used throughout this instrument, shall mean this
instrument as originally executed, or if later amended or supplemented, then as
so amended or supplemented.
4.4 Binding Effect; No
Assignment. This Note shall be binding upon the Borrower and
its successors and shall inure to the benefit of the Holder and its
heirs. This Note shall not be assignable by the Holder.
4.5 Cost of
Collection. If default is made in the payment of this Note,
the Borrower shall pay the Holder hereof reasonable costs of collection,
including reasonable attorneys’ fees.
4.6 Governing
Law. This Note shall be governed by and construed in
accordance with the internal laws of the State of New York. Any
action brought by either party against the other concerning the transactions
contemplated by this Agreement shall be brought only in the civil or state
courts of New York or in the federal courts located in the State of New
York. Both parties and the individual signing this Agreement on
behalf of the Borrower agree to submit to the jurisdiction of such
courts. The prevailing party shall be entitled to recover from the
other party its reasonable attorneys’ fees and costs. In the event
that any provision of this Note is invalid or unenforceable under any applicable
statute or rule of law, then such provision shall be deemed inoperative to the
extent that it may conflict therewith and shall be deemed modified to conform
with such statute or rule of law. Any such provision which may prove
invalid or unenforceable under any law shall not affect the validity or
unenforceability of any other provision of this Note. Nothing
contained herein shall be deemed or operate to preclude the Holder from bringing
suit or taking other legal action against the Borrower in any other jurisdiction
to collect on the Borrower’s obligations to the Holder, to realize on any
collateral or any other security for such obligations, or to enforce a judgment
or other decision in favor of the Holder. This Note shall be deemed
an unconditional obligation of the Borrower for the payment of
money.
4.7 Maximum
Payments. Nothing contained herein shall be deemed to
establish or require the payment of a rate of interest or other charges in
excess of the maximum rate permitted by applicable law. In the event
that the rate of interest required to be paid or other charges hereunder exceed
the maximum rate permitted by applicable law, any payments in excess of such
maximum rate shall be credited against amounts owed by the Borrower to the
Holder and thus refunded to the Borrower.
4.8 Stockholder
Status. The Holder shall not have rights as a stockholder of
the Borrower with respect to this Note; provided, that the Holder will have the
rights of a stockholder of the Borrower with respect to any shares of Common
Stock actually received by the Holder following the delivery of a Conversion
Notice to the Borrower.
[Signature
Page Follows.]
IN WITNESS WHEREOF, the
Borrower has caused this Note to be signed in its name by an authorized officer
as of the 25th day of August, 2008.
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BIGSTRING
CORPORATION
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By:
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/s/
Darin M. Myman
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Name:
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Darin
M. Myman
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Title:
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President
and Chief Executive Officer
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WITNESS:
/s/ Robert S.
DeMeulemeester
EXHIBIT
A
NOTICE OF
CONVERSION
(To be
executed by the Holder in order to convert the Note)
The
undersigned hereby elects to convert the principal amount of the Non-Negotiable
Convertible Promissory Note (the “Note”) issued by BigString Corporation on
August ___, 2008 and the accrued but unpaid interest thereon into shares of
Common Stock of BigString Corporation (the “Borrower”), according to the terms
and conditions set forth in the Note, as of the date written below.
Date
of Conversion:
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Conversion
Price:
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No.
of Shares To Be Delivered:
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Signature:
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Print
Name:
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Address:
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