EXHIBIT 4.5
THIS SECURED DEBENTURE, AND THE SECURITIES INTO WHICH IT IS CONVERTIBLE
(COLLECTIVELY, THE "SECURITIES"), HAVE NOT BEEN REGISTERED WITH THE UNITED
STATES SECURITIES AND EXCHANGE COMMISSION OR THE SECURITIES COMMISSION OF ANY
STATE. THE SECURITIES ARE BEING OFFERED PURSUANT TO A SAFE HARBOR FROM
REGISTRATION UNDER REGULATION D PROMULGATED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "ACT"). THE SECURITIES ARE "RESTRICTED" AND MAY NOT BE OFFERED OR
SOLD UNLESS THE SECURITIES ARE REGISTERED UNDER THE ACT, PURSUANT TO REGULATION
D OR PURSUANT TO AVAILABLE EXEMPTIONS FROM THE REGISTRATION REQUIREMENTS OF THE
ACT AND THE COMPANY WILL BE PROVIDED WITH OPINION OF COUNSEL OR OTHER SUCH
INFORMATION AS IT MAY REASONABLY REQUIRE TO CONFIRM THAT SUCH EXEMPTIONS ARE
AVAILABLE. FURTHER HEDGING TRANSACTIONS INVOLVING THE SECURITIES MAY NOT BE MADE
EXCEPT IN COMPLIANCE WITH THE ACT.
SECURED DEBENTURE
SYNDICATION NET.COM INC.
5% SECURED CONVERTIBLE DEBENTURE
JUNE ___, 2007
No. ___ US$50,000.00
This Secured Debenture (the "Debenture") is issued on June ___, 2004 (the
"Closing Date") by Syndication Net.Com Inc., a Delaware corporation (the
"Company"), to Cornell Capital Partners, LP (together with its permitted
successors and assigns, the "Holder") pursuant to exemptions from registration
under the Securities Act of 1933, as amended.
ARTICLE I.
SECTION 1.01 PRINCIPAL AND INTEREST. For value received, the Company
hereby promises to pay to the order of the Holder in lawful money of the United
States of America and in immediately available funds on June ___, 2007 the
principal sum of Fifty Thousand U.S. Dollars (US$50,000), together with interest
on the unpaid principal of this Debenture at the rate of five percent (5%) per
year (computed on the basis of a 365-day year and the actual days elapsed) from
the date of this Debenture until paid. At the Company's option, the entire
principal amount and all accrued interest shall be either (a) paid to the Holder
on the third (3rd) year anniversary from the date hereof or (b) converted in
accordance with Section 1.02 herein provided, however, that in no event shall
the Holder be entitled to convert this Debenture for a number of shares of
Common Stock in excess of that number of shares of Common Stock which, upon
giving effect to such conversion, would cause the aggregate number of shares of
Common Stock beneficially owned by the Holder and its affiliates to exceed 4.99%
of the outstanding shares of the Common Stock following such conversion.
SECTION 1.02 OPTIONAL CONVERSION. The Holder is entitled, at its option,
to convert, and sell on the same day, at any time and from time to time, until
payment in full of this Debenture, all or any part of the principal amount of
the Debenture, plus accrued interest, into shares (the "Conversion Shares") of
the Company's common stock, par value US$.0001 per share ("Common Stock"), at
the price per share (the "Conversion Price") equal to the lesser of (a) an
amount equal to one hundred twenty percent (120%) of the closing bid price of
the Common Stock as listed on a Principal Market (as defined herein), as quoted
by Bloomberg L.P. (the "Closing Bid Price") as of the date hereof, or (b) an
amount equal to eighty percent (80%) of the lowest closing bid price of the
Company's Common Stock, as quoted by Bloomberg, LP (the "Closing Bid Price"),
for the five (5) trading days immediately preceding the Conversion Date (as
defined herein). Subparagraphs (a) and (b) above are individually referred to as
a "Conversion Price". As used herein, "Principal Market" shall mean The National
Association of Securities Dealers Inc.'s Over-The-Counter Bulletin Board, Nasdaq
SmallCap Market, or American Stock Exchange. If the Common Stock is not traded
on a Principal Market, the Closing Bid Price shall mean, the reported Closing
Bid Price for the Common Stock, as furnished by the National Association of
Securities Dealers, Inc., for the applicable periods. No fraction of shares or
scrip representing fractions of shares will be issued on conversion, but the
number of shares issuable shall be rounded to the nearest whole share. To
convert this Debenture, the Holder hereof shall deliver written notice thereof,
substantially in the form of Exhibit "A" to this Debenture, with appropriate
insertions (the "Conversion Notice"), to the Company at its address as set forth
herein. The date upon which the conversion shall be effective (the "Conversion
Date") shall be deemed to be the date set forth in the Conversion Notice.
SECTION 1.03 RESERVATION OF COMMON STOCK. The Company shall reserve and
keep available out of its authorized but unissued shares of Common Stock, solely
for the purpose of effecting the conversion of this Debenture, such number of
shares of Common Stock as shall from time to time be sufficient to effect such
conversion, based upon the Conversion Price. If at any time the Company does not
have a sufficient number of Conversion Shares authorized and available, then the
Company shall call and hold a special meeting of its stockholders within sixty
(60) days of that time for the sole purpose of increasing the number of
authorized shares of Common Stock.
SECTION 1.04 RIGHT OF REDEMPTION. The Company at its option shall have the
right to redeem, with three (3) business days advance written notice (the
"Redemption Notice"), a portion or all outstanding convertible debenture. The
redemption price shall be one hundred twenty percent (120%) of the amount
redeemed plus accrued interest.
In the event the Company exercises a redemption of either all or a portion
the Convertible Debenture, the Holder shall receive a warrant to purchase fifty
thousand (50,000) shares of the Company's Common Stock for every One Hundred
Thousand U.S. Dollars (US$100,000) redeemed, pro rata (the "Warrant"). The
Warrant shall be exercisable on a "cash basis" and have an exercise price of one
hundred twenty percent (120%) of the Closing Bid Price of the Company's Common
Stock on the Closing Date. The Warrant shall have "piggy-back" and demand
registration rights and shall survive for two (2) years from the Closing Date.
SECTION 1.05 REGISTRATION RIGHTS. The Company is obligated to register the
resale of the Conversion Shares under the Securities Act of 1933, as amended,
pursuant to the terms of a Registration Rights Agreement, between the Company
and the Holder of even date herewith (the "Investor Registration Rights
Agreement").
SECTION 1.06 INTEREST PAYMENTS. The interest so payable will be paid at
the time of maturity or conversion to the person in whose name this Debenture is
registered. At the time such interest is payable, the Holder, in its sole
discretion, may elect to receive the interest in cash (via wire transfer or
certified funds) or in the form of Common Stock. In the event of default, as
described in Article III Section 3.01 hereunder, the Holder may elect that the
interest be paid in cash (via wire transfer or certified funds) or in the form
of Common Stock. If paid in the form of Common Stock, the amount of stock to be
issued will be calculated as follows: the value of the stock shall be the
Closing Bid Price on: (i) the date the interest payment is due; or (ii) if the
interest payment is not made when due, the date the interest payment is made. A
number of shares of Common Stock with a value equal to the amount of interest
due shall be issued. No fractional shares will be issued; therefore, in the
event that the value of the Common Stock per share does not equal the total
interest due, the Company will pay the balance in cash.
SECTION 1.07 PAYING AGENT AND REGISTRAR. Initially, the Company will act
as paying agent and registrar. The Company may change any paying agent,
registrar, or Company-registrar by giving the Holder not less than ten (10)
business days' written notice of its election to do so, specifying the name,
address, telephone number and facsimile number of the paying agent or registrar.
The Company may act in any such capacity.
SECTION 1.08 SECURED NATURE OF DEBENTURE. This Debenture is secured by all
of the assets and property of the Company as set forth on Exhibit A to the
Security Agreement dated the date hereof between the Company and the Holder (the
"Security Agreement"). As set forth in the Security Agreement, Holder's security
interest shall terminate upon the occurrence of an Expiration Event as defined
in the Security Agreement.
ARTICLE II.
SECTION 2.01 AMENDMENTS AND WAIVER OF DEFAULT. The Debenture may not be
amended. Notwithstanding the above, without the consent of the Holder, the
Debenture may be amended to cure any ambiguity, defect or inconsistency, or to
provide for assumption of the Company obligations to the Holder.
ARTICLE III.
SECTION 3.01 EVENTS OF DEFAULT. An Event of Default is defined as follows:
(a) failure by the Company to pay amounts due hereunder within fifteen (15) days
of the date of maturity of this Debenture; (b) failure by the Company to comply
with the terms of the Irrevocable Transfer Agent Instructions attached to the
Securities Purchase Agreement; (c) failure by the Company's transfer agent to
issue freely tradeable Common Stock to the Holder within five (5) days of the
Company's receipt of the attached Notice of Conversion from Holder; (d) failure
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by the Company for ten (10) days after notice to it to comply with any of its
other agreements in the Debenture; (e) events of bankruptcy or insolvency; (f) a
breach by the Company of its obligations under the Securities Purchase Agreement
or the Investor Registration Rights Agreement which is not cured by the Company
within ten (10) days after receipt of written notice thereof. Upon the
occurrence of an Event of Default, the Holder may, in its sole discretion,
accelerate full repayment of all debentures outstanding and accrued interest
thereon or may, notwithstanding any limitations contained in this Debenture
and/or the Securities Purchase Agreement dated the date hereof between the
Company and Cornell Capital Partners, L.P. (the "Securities Purchase
Agreement"), convert all debentures outstanding and accrued interest thereon
into shares of Common Stock pursuant to Section 1.02 herein.
SECTION 3.02 FAILURE TO ISSUE UNRESTRICTED COMMON STOCK. As indicated in
Article III Section 3.01, a breach by the Company of its obligations under the
Investor Registration Rights Agreement shall be deemed an Event of Default,
which if not cured within ten (10) days, shall entitle the Holder to accelerate
full repayment of all debentures outstanding and accrued interest thereon or,
notwithstanding any limitations contained in this Debenture and/or the
Securities Purchase Agreement, to convert all debentures outstanding and accrued
interest thereon into shares of Common Stock pursuant to Section 1.02 herein.
The Company acknowledges that failure to honor a Notice of Conversion shall
cause irreparable harm to the Holder.
ARTICLE IV.
SECTION 4.01 RIGHTS AND TERMS OF CONVERSION. This Debenture, in whole or
in part, may be converted at any time following the Closing Date, into shares of
Common Stock at a price equal to the Conversion Price as described in Section
1.02 above.
SECTION 4.02 RE-ISSUANCE OF DEBENTURE. When the Holder elects to convert a
part of the Debenture, then the Company shall reissue a new Debenture in the
same form as this Debenture to reflect the new principal amount.
SECTION 4.03 TERMINATION OF CONVERSION RIGHTS. The Holder's right to
convert the Debenture into the Common Stock in accordance with paragraph 4.01
shall terminate on the date that is the third (3rd) year anniversary from the
date hereof and this Debenture shall be automatically converted on that date in
accordance with the formula set forth in Section 4.01 hereof, and the
appropriate shares of Common Stock and amount of interest shall be issued to the
Holder.
ARTICLE V.
SECTION 5.01 ANTI-DILUTION. In the event that the Company shall at any
time subdivide the outstanding shares of Common Stock, or shall issue a stock
dividend on the outstanding Common Stock, the Conversion Price in effect
immediately prior to such subdivision or the issuance of such dividend shall be
proportionately decreased, and in the event that the Company shall at any time
combine the outstanding shares of Common Stock, the Conversion Price in effect
immediately prior to such combination shall be proportionately increased,
effective at the close of business on the date of such subdivision, dividend or
combination as the case may be.
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Section 5.02 CONSENT OF HOLDER TO SELL CAPITAL STOCK OR GRANT SECURITY
INTERESTS. Except for the Standby Equity Distribution Agreement dated the date
hereof between the Company and Cornell Capital Partners, LP, so long as any of
the principal of or interest on this Debenture remains unpaid and unconverted,
the Company shall not, without the prior consent of the Holder, issue or sell
(i) any Common Stock or Preferred Stock without consideration or for a
consideration per share less than its fair market value determined immediately
prior to its issuance, (ii) issue or sell any Preferred Stock, warrant, option,
right, contract, call, or other security or instrument granting the holder
thereof the right to acquire Common Stock without consideration or for a
consideration per share less than such Common Stock's fair market value
determined immediately prior to its issuance, (iii) enter into any security
instrument granting the holder a security interest in any of the assets of the
Company, or (iv) file any registration statement on Form S-8 provided, however,
the aforementioned shall not apply to (x) a bonafide employee stock option plan
covering one million five hundred thousand (1,500,000) shares of Common Stock
adopted by the Board of Directors of the Company or (y) securities issued in
connection with an acquisition of a subsidiary, which such securities shall not
be issued together with registration rights without the prior written consent of
the Buyer(s).
ARTICLE VI.
SECTION 6.01 NOTICE. Notices regarding this Debenture shall be sent to the
parties at the following addresses, unless a party notifies the other parties,
in writing, of a change of address:
If to the Company, to: Syndication Net.Com Inc.
The Hartke Building
7637 Leesburg Pike
Falls Church, VA 2203
Attention: Wayne Hartke
Telephone: (202) 467-2788
Facsimile: (301) 528-4238
With a copy to: Sichenzia Ross Friedman Ference LLP
1065 Avenue of the Americas - 21st Floor
New York, NY 10018
Attention: Gregory Sichenzia, Esq.
Telephone: (212) 930-9700
Facsimile: (212) 930-9725
If to the Holder: Cornell Capital Partners, LP
101 Hudson Street, Suite 3700
Jersey City, NJ 07303
Telephone: (201) 985-8300
Facsimile: (201) 985-8266
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With a copy to: Butler Gonzalez LLP
1416 Morris Avenue, Suite 207
Union, NJ 07083
Attention: David Gonzalez, Esq.
Telephone: (908) 810-8588
Facsimile: (908) 810-0973
SECTION 6.02 GOVERNING LAW. This Debenture shall be deemed to be made
under and shall be construed in accordance with the laws of the State of
Delaware without giving effect to the principals of conflict of laws thereof.
Each of the parties consents to the jurisdiction of the U.S. District Court
sitting in the District of the State of New Jersey or the state courts of the
State of New Jersey sitting in Hudson County, New Jersey in connection with any
dispute arising under this Debenture and hereby waives, to the maximum extent
permitted by law, any objection, including any objection based on forum non
conveniens to the bringing of any such proceeding in such jurisdictions.
SECTION 6.03 SEVERABILITY. The invalidity of any of the provisions of this
Debenture shall not invalidate or otherwise affect any of the other provisions
of this Debenture, which shall remain in full force and effect.
SECTION 6.04 ENTIRE AGREEMENT AND AMENDMENTS. This Debenture represents
the entire agreement between the parties hereto with respect to the subject
matter hereof and there are no representations, warranties or commitments,
except as set forth herein. This Debenture may be amended only by an instrument
in writing executed by the parties hereto.
SECTION 6.05 COUNTERPARTS. This Debenture may be executed in multiple
counterparts, each of which shall be an original, but all of which shall be
deemed to constitute on instrument.
IN WITNESS WHEREOF, with the intent to be legally bound hereby, the
Company as executed this Debenture as of the date first written above.
SYNDICATION NET.COM INC.
By: /s/ Wayne Hartke
-------------------------------------
Name: Wayne Hartke
Title: President
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EXHIBIT "A"
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NOTICE OF CONVERSION
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(TO BE EXECUTED BY THE HOLDER IN ORDER TO CONVERT THE DEBENTURE)
TO:
The undersigned hereby irrevocably elects to convert US$____________ of
the principal amount of the above Debenture into Shares of Common Stock of
Syndication Net.Com Inc., according to the conditions stated therein, as of the
Conversion Date written below.
CONVERSION DATE:
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APPLICABLE CONVERSION PRICE:
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SIGNATURE:
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NAME:
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ADDRESS:
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AMOUNT TO BE CONVERTED: US$
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AMOUNT OF DEBENTURE
UNCONVERTED: US$
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CONVERSION PRICE PER SHARE: US$
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NUMBER OF SHARES OF COMMON
STOCK TO BE ISSUED:
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PLEASE ISSUE THE SHARES OF
COMMON STOCK IN THE FOLLOWING
NAME AND TO THE FOLLOWING
ADDRESS:
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ISSUE TO:
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AUTHORIZED SIGNATURE:
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NAME:
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TITLE:
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PHONE NUMBER:
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BROKER DTC PARTICIPANT CODE:
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ACCOUNT NUMBER:
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A-1