ANY INDEBTEDNESS EVIDENCED BY THIS INSTRUMENT IS SUBORDINATED TO THE SENIOR DEBT OF THE “MAKER” (AS DEFINED BELOW) PURSUANT TO THAT CERTAIN DEBT SUBORDINATION AGREEMENT BY AND BETWEEN THE “MAKER” (AS DEFINED BELOW), MAKER’S SENIOR CREDITOR (TOGETHER...
ANY
INDEBTEDNESS EVIDENCED BY THIS INSTRUMENT IS SUBORDINATED TO THE SENIOR DEBT OF
THE “MAKER” (AS DEFINED BELOW) PURSUANT TO THAT CERTAIN DEBT SUBORDINATION
AGREEMENT BY AND BETWEEN THE “MAKER” (AS DEFINED BELOW), MAKER’S SENIOR CREDITOR
(TOGETHER WITH ITS SUCCESSORS AND ASSIGNS, THE “BANK”) AND THE “PAYEE” (AS
DEFINED BELOW)(AS AMENDED, RESTATED, SUPPLEMENTED, OR OTHERWISE MODIFIED FROM
TIME TO TIME, THE “SUBORDINATION AGREEMENT”) ATTACHED HERETO AS EXHIBIT
B. THIS INSTRUMENT MAY NOT BE MODIFIED, RESTATED, RENEWED,
SUPPLEMENTED, EXTENDED, REFINANCED, REPLACED OR OTHERWISE ALTERED IN ANY MANNER
WITHOUT THE PRIOR WRITTEN CONSENT OF THE BANK.
THIS
NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED
(“SECURITIES ACT”), AND MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED EXCEPT
(I) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR
(II) PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT, BUT
ONLY UPON THE PAYEE FIRST HAVING OBTAINED A WRITTEN OPINION OF MAKER’S COUNSEL,
OR OTHER COUNSEL ACCEPTABLE TO MAKER, THAT THE PROPOSED DISPOSITION IS
CONSISTENT WITH ALL APPLICABLE PROVISIONS OF THE SECURITIES ACT AND ANY
APPLICABLE “BLUE SKY” OR OTHER SIMILAR SECURITIES LAW.
CONVERTIBLE PROMISSORY
NOTE
|
$______,000
|
June
__, 2009
|
FOR VALUE
RECEIVED, SMF Energy
Corporation, a Delaware corporation (“Maker”), promises to pay to
the order of _________________ or his/ her/
its assigns (“Payee”), at such place as the
Payee may designate in writing, in lawful money of the United States of America,
the principal sum of ______________________ Thousand Dollars
($____,000).
1. Principal
Payments. The principal
amount of this promissory note (the “Note”), together with any
accrued but unpaid interest, shall be due and payable on July 1, 2014 (the “Due Date”). The
outstanding principal balance of this Note may be prepaid by Maker prior to
maturity as provided in Section 4 of this Note.
2. Interest. The outstanding
principal balance of this Note shall accrue interest at a fixed rate of five and
one-half percent (5.5%). Interest shall be calculated on the basis of
a 365 day year. Subject to the terms of the Subordination Agreement,
accrued interest on this Note shall be paid semi-annually, except that payments
of the first thirteen months’ accrued interest shall be deferred until on or
about August 15, 2010, at which time the payment of accrued interest through
July 31, 2010 shall be made. Thereafter, starting January 15, 2010,
subject to the terms of the Subordination Agreement, semi-annual payments shall
be made on or about each January 15 for the semi-annual period ending the prior
December 31, and on or about each July 15 for the semi-annual period ending the
prior June 30, respectively. The semi-annual payments shall continue
until the outstanding principal balance of this Note is paid in
full.
3. Interest Method of Payment;
Application.
(a) All
payments (including any prepayments) shall be made on the due date thereof by
wire transfer of immediately available funds to such bank account as Payee may
from time to time designate in writing. All cash payments of interest
shall be made on the due date thereof by check drawn on a United States
bank. Payments (including all prepayments) received by Payee on this
Note shall be applied first to the payment of accrued and unpaid interest and
only thereafter to the outstanding principal balance of this Note.
(b) In
the event the interest provisions hereof or any exactions provided for herein
shall result, because of the reduction of principal, or for any reason at any
time during the life of this loan, in an effective rate of interest which, for
any month, transcends the limit of the usury or any other law applicable to the
loan evidenced hereby, all sums in excess of those lawfully collectible as
interest for the period in question shall, without further agreement or notice
between or by any party hereto, be applied to reduction of the outstanding
principal balance upon receipt of such moneys by Payee hereof, with the same
force and effect as though the payment had specifically designated such extra
sums to be so applied to principal.
4. Prepayment.
(a) Optional
Prepayment. At any time after the date of this Note, Maker
shall, subject to the terms of the Subordination Agreement, have the option to
prepay this Note, in whole or in part, without prepayment penalty or
premium. In addition to the principal amount being pre-paid, Maker
shall also pay any accrued but unpaid interest on the entire outstanding
principal balance of this Note at the time of the prepayment.
(b) Notice to
Payee. At least fifteen (15) days but not more than sixty
(60) days (the “Payee Notice
Period”) before a prepayment date, Maker shall mail or cause to be mailed
a notice of prepayment to Payee. The notice shall state:
(i) the
prepayment date;
(ii) the
prepayment price;
(iii) that
this Note called for prepayment must be surrendered to Maker to collect the
prepayment price; and
(iv) that,
unless Maker defaults in making such prepayment payment, interest on this Note
called for prepayment ceases to accrue on the prepayment date.
(c) Effect of Notice of
Prepayment. This Note will become irrevocably due and payable
on the prepayment date at the prepayment price. A notice of
prepayment may not be conditional. If the prepayment is only a
partial redemption, then only the prepaid portion shall become due and payable
on the prepayment date.
2
(d) Conversion Prior to
Prepayment or Merger. During the Payee Notice Period, the
Payee may elect to convert twenty-five percent (25%) of the original principal
amount of this Note into common stock of Maker in accordance with Section 5
hereof rather than permit the Note to be prepaid in its entirety. If
there is a partial prepayment and Payee elects to convert a portion of this Note
instead of permitting the prepayment of this Note, Payee may apply all or any
portion of Payee’s twenty-five percent (25%) conversion right to the amount that
would otherwise be prepaid, as Payee so elects. If and to the extent
that there is a partial prepayment and Payee elects not to exercise Payee’s
conversion rights, Payee’s conversion rights will remain at twenty-five percent
(25%) of the original principal amount of this Note, reduced by the amount, if
any, that was converted at any time prior to such prepayment.
(e) Note Prepaid or Converted in
Part. If less than the entire principal amount of this Note is
prepaid or converted, Maker will deliver to Payee, at Maker’s expense, a new
promissory note in the same form of this Note in an amount equal in principal to
the non-prepaid and unconverted portion of this Note not more than thirty (30)
days after such partial conversion or prepayment (“Partial Conversion Note”);
provided that, Maker shall not issue a Partial Conversion Note except upon the
prior written approval of Bank or at the request of and in the manner requested
by Bank, which approval shall not be unreasonably withheld. Partial Conversion
Notes shall be subject to the Subordination Agreement.
5. Conversion.
(a) Optional
Conversion. Twenty-five percent (25%) of the original
principal amount of this Note is convertible by the holder hereof into shares
(“Shares”) of Maker’s
common stock (“Common
Stock”) at $0.50 per
share (the “Note Conversion
Price”).
(b) The
remaining seventy-five percent (75%) of the principal amount of the Notes (the
“Balance Amount”) will
not be convertible into Shares.
(c) Upon
conversion of this Note, certificates for the Shares so purchased shall be
delivered to Payee within three (3) business days of the Maker’s actual receipt
of this original Note and a completed Notice of Conversion in substantially the
same form attached hereto as Exhibit
A.
(d) The
number and kind of securities purchasable upon the conversion of this Note and
the Note Conversion Price shall be subject to adjustment from time to time upon
the occurrence of certain events, as follows:
(i) In
case of any reclassification or change of outstanding securities of the Common
Stock (other than a change in par value, or from par value to no par value, or
from no par value to par value, or as a result of a subdivision or combination),
or in case of any merger of Maker with or into another corporation (other than a
merger with another corporation in which Maker is a continuing corporation and
which does not result in any reclassification or change of outstanding
securities issuable upon conversion of this Note), or in case of any sale of all
or substantially all of the assets of Maker, Payee shall have the right upon
conversion of this Note to receive, in lieu of Shares of Common Stock
theretofore issuable upon conversion of this Note, the kind and amount of shares
of stock, other securities, money and property receivable upon such
reclassification, change or merger by the holder of one share of Common
Stock. These provisions shall similarly apply to successive
reclassifications, changes, mergers and transfers.
3
(ii) If
Maker at any time while this Note remains outstanding and unexpired shall
subdivide or combine its Common Stock, the Note Conversion Price shall be
proportionately adjusted. In the case of a subdivision, the Note
Conversion Price shall be proportionately decreased and the number of Shares
shall be proportionately increased. In the case of a combination, the
Note Conversion Price shall be proportionately increased and the number of
Shares shall be proportionately decreased.
(iii) If
Maker at any time while this Note is outstanding and unexpired shall pay a
dividend or other distribution with respect to Common Stock or any other equity
interest in Maker which is payable in Common Stock (except any distribution
specifically provided for in the foregoing paragraph (i) or (ii)) then the Note
Conversion Price and the number of Shares into which a portion of this Note may
be converted shall be adjusted, from and after the date of determination of
stockholders entitled to receive such dividend or distribution to that price
determined by multiplying the Note Conversion Price in effect immediately prior
to such date of determination by a fraction (a) the numerator of which shall be
the total number of shares of Common Stock outstanding immediately prior to such
dividend or distribution and (b) the denominator of which shall be the total
number of shares of Common Stock outstanding immediately after such dividend or
distribution.
(iv) When
there is an adjustment in the Note Conversion Price and a corresponding increase
in the number of Shares of Common Stock that can be obtained by conversion, the
adjustment to the number of Shares shall be made by multiplying the number of
Shares purchasable immediately prior to such adjustment in the Note Conversion
Price by a fraction, the numerator of which shall be the Note Conversion Price
immediately prior to such adjustment and the denominator of which shall be the
Note Conversion Price immediately thereafter, with the adjustment being made to
the nearest whole share.
(v) Whenever
the Note Conversion Price shall be adjusted, Maker shall make a certificate
signed by its chief financial officer setting forth, in reasonable detail, the
event requiring the adjustment, the amount of the adjustment, the method by
which such adjustment was calculated, and the Note Conversion Price or Prices
after giving effect to such adjustment, and shall cause copies of such
certificate to be mailed (by first class mail, postage prepaid) to the
Payee.
(vi) If
Maker proposes (A) to declare any dividend or distribution upon any class or
series of its stock, whether in cash, property, stock or other securities,
whether or not a regular cash dividend and whether or not out of earnings or
earned surplus; (B) to effect any reclassification or recapitalization of the
Common Stock outstanding involving a change in the Common Stock; or (C) to merge
or consolidate with or into any other entity, or sell, lease or convey all or
substantially all its assets or property, or to liquidate, dissolve or wind up,
whether voluntary or involuntary, then Maker shall send to the Payee at least
ten (10) days’ prior written notice of the record date for any such event and
prompt notice of any material change in the terms of any such
transaction.
4
(e) No
fractional Shares of Common Stock will be issued in connection with any
conversion of this Note.
(f) Payee
shall not be entitled to vote or receive dividends or be deemed the holder of
Common Stock or any other securities of Maker which may at any time be issuable
on the exercise hereof for any purpose, nor shall anything contained herein be
construed to confer upon Payee any of the rights of a stockholder of Maker
before this Note has been converted.
6. Default. If any payment
required by this Note is not paid, and upon the continuation of such failure to
pay for a period of ten (10) days following the receipt of written notice (as
provided herein) of such failure by Payee or any subsequent holder hereof to
Maker, this Note shall be considered to be in default and the entire unpaid
principal sum hereof shall, at the option of the holder hereof, by notice to
Maker, become immediately due and payable in full. Notwithstanding
the foregoing, if the Maker is prevented from making payments required by this
Note pursuant to the terms of the Subordination Agreement or the senior loan
agreement referenced in the Subordination Agreement, such failure to make
payments required by this Note shall not be deemed a default of this
Note. In such event, interest will continue to accrue until such time
as Maker is allowed to resume such payments pursuant to the terms of the
Subordination Agreement.
7. Notices. Any notice
provided for in this Note shall be in writing and shall be given and be
effective upon (1) personal delivery to Maker, or (2) receipt of such notice by
certified or registered mail, return receipt requested, addressed to Maker at
Maker’s address stated below, or to such other address as Maker may designate by
written notice to Payee. Any notice to Payee shall be in writing and
shall be given and be effective upon (1) personal delivery to Payee, or (2) by
mailing such notice by certified or registered mail, return receipt requested,
to Payee at the address stated in the first paragraph of this Note, or to such
other address as Payee may designate by written notice to Maker.
8. Unsecured
Subordinated Note. PAYEE
ACKNOWLEDGES THAT THIS IS AN UNSECURED NOTE AND THAT IT IS SUBJECT IN ALL
RESPECTS TO THE SUBORDINATION AGREEMENT.
9. Waivers. Maker and all
endorsers, guarantors and all persons liable or to become liable on this Note
waive presentment, protest and demand, notice of protest, demand and dishonor
and nonpayment of this Note, and agree that at any time and from time to time
without notice, the terms of the payment herein may be modified, changed or
exchanged by agreement between the Payee or any subsequent holder hereof and
Maker or any successor in title to Maker without in any way affecting the
liability of any party to this Note or any person liable or to become liable
with respect to any indebtedness evidenced hereby. No delay or
omission on the part of the holder hereof in exercising any right hereunder
shall operate as a waiver of such right or of any other right under this
Note. A waiver on one occasion shall not be construed as a bar to or
waiver of any such right and/or remedy on any future occasion.
5
10. Miscellaneous. The validity and
construction of this Note and all matters pertaining hereto are to be determined
in accordance with the laws of the State of Florida. Maker and all
endorsers, guarantors and other persons liable or to become liable hereunder
agree that in the event of default, this Note may be enforced in any court of
competent jurisdiction in the State of Florida, and all such persons do hereby
submit to the jurisdiction of such court regardless of their residence or where
this Note or any endorsement or guarantee hereof may be executed.
In the
event of default and the placement of this Note in the hands of any attorney for
collection, Maker agrees to pay all collection costs and expenses, including
reasonable attorneys’ fees.
This Note
is delivered as a part of a business transaction and not in connection with a
consumer purchase.
6
IN
WITNESS WHEREOF, Maker has executed this Note effective as of the date first set
forth above.
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SMF
ENERGY CORPORATION
|
|||
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By:
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|||
|
Xxxxxxx
X. Xxxxxxxxx
|
|||
|
President
and Chief Executive Officer
|
|||
|
000
Xxxx Xxxxxxx Xxxxx Xxxx, Xxxxx 000
|
|||
|
Xxxx
Xxxxxxxxxx, XX
00000
|
|||
Exhibit
A
NOTICE
OF CONVERSION
TO: SMF
ENERGY CORPORATION
1. The
undersigned note holder (“Holder”) hereby elects to convert $____________ of the
principal amount of the _____________, 2009 5.5% Unsecured Convertible
Promissory Note (the “Note”) of SMF Energy
Corporation (“SMF”)
payable to Holder into ____________ shares of the Common Stock of SMF (the
“Shares”) at the
$________ per Share price prescribed by the Note (the “Note Conversion
Price”). Enclosed herewith is the original Note, tendered for
such conversion. If and to the extent that additional sums remain
owed under the Note after such conversion, SMF is directed to issue a new
replacement Note to Holder representing the unpaid balance of the Note after the
conversion.
2. By
this conversion, Holder does not waive any payment of unpaid interest on the
converted portion of the Note that accrued prior to the date of
conversion. Any such accrued but unpaid interest is not payable until
the next regular date set forth in the Note for payment of interest on the
Note.
2. Please
issue a certificate or certificates representing the Shares in the name of
Holder or in such other names as may be specified below:
3. [For use only in
the absence of an effective registration statement covering the
Shares] Holder represents that the Shares are being acquired
for the account of Holder, for investment purposes, and not with a view to, or
for resale in connection with, the distribution thereof and that Holder has no
present intention of distributing or reselling such Shares. In
support thereof, Holder has executed an Investment Representation Statement
attached to this Notice as Attachment 1.
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NAME
OF HOLDER:
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|
Date:
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(Signature
of Holder)
|
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Attachment
1
to Notice of
Conversion
(For use only in
the absence of an effective registration statement covering the
Shares)
INVESTMENT
REPRESENTATION STATEMENT
|
HOLDER:
|
|
COMPANY:
|
SMF
ENERGY CORPORATION
|
|
|
SECURITY:
|
COMMON
STOCK ISSUED UPON CONVERSION OF UNSECURED CONVERTIBLE PROMISSORY
NOTE
|
|
|
AMOUNT:
|
||
|
DATE:
|
||
In
connection with the purchase of the above-listed securities (the “Securities”), the undersigned
(“Holder”) represents to
Company the following:
(a) Holder
is aware of Company’s business affairs and financial condition, and has acquired
sufficient information about Company to reach an informed and knowledgeable
decision to acquire the Securities. Holder is purchasing these
Securities for Holder’s own account for investment purposes only and not with a
view to, or for the resale in connection with, any “distribution” thereof for
purposes of the Securities Act of 1933, as amended (the “Securities Act”).
(b) Holder
understands that the Securities have not been registered under the Securities
Act in reliance upon a specific exemption therefrom, which exemption depends
upon, among other things, the bona fide nature of Holder’s investment intent as
expressed herein.
(c) Holder
further understands that the Securities must be held indefinitely unless
subsequently registered under the Securities Act or unless an exemption from
registration is otherwise available. Moreover, Holder understands
that Company is under no obligation to register the Securities except as set
forth in the
Payment and Exchange Agreement. In addition, Holder understands that
the certificate evidencing the Securities will be imprinted with a legend that
prohibits the transfer of the Securities unless they are registered or such
registration is not required in the opinion of counsel for Company.
(d) Holder
is aware of the provisions of Rule 144, promulgated under the Securities Act,
which, in substance, permits limited public resale of “restricted securities”
acquired, directly or indirectly, from the issuer thereof (or from an affiliate
of such issuer), in a non- public offering subject to the satisfaction of
certain conditions.
(e) Holder
further understands that at the time Holder wishes to sell the Securities there
may be no public market upon which to make such a sale.
(f) Holder
further understands that in the event all of the requirements of Rule 144
are not satisfied, registration under the Securities Act or compliance with
another registration exemption will be required, and no such exemption may be
available.
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Signature
of Holder:
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|||
|
Date:
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Exhibit
B
DEBT
SUBORDINATION AGREEMENT
