NEITHER THIS SECURITY NOR THE SECURITIES INTO WHICH THIS SECURITY IS CONVERTIBLE
HAVE BEEN REGISTERED WITH THE SECURITIES AND EXCHANGE COMMISSION OR THE
SECURITIES COMMISSION OF ANY STATE, IN RELIANCE UPON AN EXEMPTION FROM
REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES
ACT"), AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT PURSUANT TO AN
EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR PURSUANT TO AN
AVAILABLE EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT AND IN ACCORDANCE WITH APPLICABLE STATE
SECURITIES LAWS, AS EVIDENCED BY A LEGAL OPINION OF COUNSEL TO THE TRANSFEROR TO
SUCH EFFECT, THE SUBSTANCE OF WHICH SHALL BE REASONABLY ACCEPTABLE TO THE
COMPANY. THIS SECURITY AND THE SECURITIES ISSUABLE UPON CONVERSION OF THIS
SECURITY MAY BE PLEDGED IN CONNECTION WITH A BONA FIDE MARGIN ACCOUNT OR OTHER
LOAN SECURED BY SUCH SECURITIES.
Original Issue Date: August 4, 2006
Original Conversion Price (subject to adjustment herein): $1.388
8% SENIOR SECURED CONVERTIBLE NOTE
DUE MAY 15, 2007
FOR VALUE RECEIVED, Auriga Laboratories, Inc., a Delaware corporation (the
"Company") promises to pay to Sorrento Financial Partners, LLC or its registered
assigns (the "Holder"), the principal sum of $632,000 on May 15, 2007 (the
"Maturity Date"), and to pay interest to the Holder on the aggregate unconverted
and then outstanding principal amount of this Note in accordance with the
provisions hereof. This Note is subject to the following additional provisions:
Section 1. Definitions. For the purposes hereof, the following terms shall have
the following meanings:
"Business Day" means any day except Saturday, Sunday and any day which
shall be a federal legal holiday in the United States or a day on which banking
institutions in the State of Georgia are authorized or required by law or other
government action to close.
"Common Stock" means the common stock, $0.001 par value, of the Company
and stock of any other class into which such shares may hereafter have been
reclassified or changed.
"Conversion Date" shall have the meaning set forth in Section 4(a) hereof.
"Conversion Price" shall have the meaning set forth in Section 4(b).
"Conversion Shares" means the shares of Common Stock issuable upon
conversion of this Note.
"Event of Default" shall have the meaning set forth in Section 6.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"FMV" means, for any date, the price determined by the first of the
following clauses that applies: (a) if the Common Stock is then listed or quoted
on a Trading Market, the closing price of the Common Stock for such date (or the
nearest preceding date) on the primary Trading Market on which the Common Stock
is then listed or quoted; (b) if the Common Stock is not then listed or quoted
on the Trading Market and if prices for the Common Stock are then reported in
the "Pink Sheets", the most recent bid price per share of the Common Stock so
reported; or (c) in all other cases, the fair market value of a share of Common
Stock as determined in good faith by the Company's Board of Directors.
"Interest Payment Date" shall have the meaning set forth in Section 2(a).
"Maturity Date" shall have the meaning set forth in the introductory
paragraph of this Note.
"Notice of Conversion" shall have the meaning set forth in Section 4(a).
"Original Issue Date" shall mean the date of the first issuance of this
Note regardless of the number of transfers of this Note and regardless of the
number of instruments which may be issued to evidence this Note.
"Person" means a corporation, an association, a partnership, organization,
a business, an individual, a government or political subdivision thereof or a
governmental agency.
"Trading Day" means a day on which the Common Stock is traded on a Trading
Market.
"Trading Market" means the following markets or exchanges on which the
Common Stock is listed or quoted for trading on the date in question: the Nasdaq
SmallCap Market, the American Stock Exchange, the New York Stock Exchange, the
Nasdaq National Market or the OTC Bulletin Board.
Section 2. Interest.
(a) Payment of Interest. The Company shall pay interest to the Holder on
the aggregate unconverted and then outstanding principal amount of this Note at
the annual rate of 8%, payable monthly in arrears beginning on the first day of
the first month after the Original Issue Date and on each Conversion Date (as to
that principal amount then being converted) and on the Maturity Date (except
that, if any such date is not a Business Day, then such payment shall be due on
the next succeeding Business Day) (each such date, an "Interest Payment Date").
(b) Interest Calculations. Interest shall be calculated on the basis of
a 360-day year and shall accrue daily commencing on the Original Issue Date
until payment in full of the principal sum, together with all accrued and unpaid
interest has been made. Interest shall be compounded monthly. Interest shall
cease to accrue with respect to any principal amount converted.
Page 2 of 10
Section 3. Voluntary Prepayment. The Company may prepay all or any portion of
this Note at any time without penalty or premium.
Section 4. Conversion.
(a) Voluntary Conversion. At any time after the Original Issue Date
until this Note is no longer outstanding, this Note shall be convertible into
shares of Common Stock at the option of the Holder, in whole or in part at any
time and from time to time. The Holder shall effect conversions by delivering to
the Company the form of Notice of Conversion attached hereto as Annex A (a
"Notice of Conversion"), specifying therein the principal amount of this Note to
be converted and the date on which such conversion is to be effected (a
"Conversion Date"). If no Conversion Date is specified in a Notice of
Conversion, the Conversion Date shall be the date that such Notice of Conversion
is provided hereunder. To effect conversions hereunder, the Holder shall not be
required to physically surrender this Note to the Company unless the entire
principal amount of this Note has been so converted. Conversions hereunder shall
have the effect of lowering the outstanding principal amount of this Note in an
amount equal to the applicable conversion. The Holder and the Company shall
maintain records showing the principal amount converted and the date of such
conversions. The Company shall deliver any objection to any Notice of Conversion
within 3 Business Days of receipt of such notice. In the event of any dispute or
discrepancy, the records of the Holder shall be controlling and determinative in
the absence of manifest error. The Holder and any assignee, by acceptance of
this Note, acknowledge and agree that, by reason of the provisions of this
paragraph, following conversion of a portion of this Note, the unpaid and
unconverted principal amount of this Note may be less than the amount stated on
the face hereof. However, at the Company's request, the Holder shall promptly
surrender this Note to the Company so that a new Note reflecting the correct
principal amount may be issued to the Holder.
(b) Conversion Price. Subject to the provisions of Section 5, the
Conversion Price in effect on any Conversion Date shall be $1.388.
(c) Mechanics of Conversion
(i) Conversion Shares Issuable Upon Conversion of Principal
Amount. The number of shares of Common Stock issuable upon a conversion
hereunder shall be determined by the quotient obtained by dividing (x) the
outstanding principal amount of this Note to be converted by (y) the Conversion
Price then in effect.
(ii) Delivery of Certificate Upon Conversion. Promptly following
any Conversion Date, the Company will deliver to the Holder (A) a certificate or
certificates representing the Conversion Shares representing the number of
shares of Common Stock being acquired upon the conversion of this Note and (B) a
bank check in the amount of accrued and unpaid interest.
(iii) Reservation of Shares Issuable Upon Conversion. The Company
covenants that it will at all times reserve and keep available out of its
authorized and unissued shares of Common Stock, solely for the purpose of
issuance upon conversion of this Note as herein provided, free from preemptive
rights or any other actual contingent purchase rights of persons other than the
Holder, not less than such number of shares of Common Stock as shall be issuable
(taking into account the adjustments of Section 5) upon the conversion of the
outstanding principal amount of this Note. The Company covenants that all shares
of Common Stock that shall be so issuable shall, upon issue, be duly and validly
authorized and issued, fully paid and nonassessable.
Page 3 of 10
(iv) Fractional Shares. Upon a conversion hereunder the Company
shall not issue stock certificates representing fractions of shares of Common
Stock, but shall in lieu thereof, make a cash payment in respect of any final
fraction of a share based on the FMV at such time.
(v) Transfer Taxes. The issuance of certificates for shares of the
Common Stock on conversion of this Note shall be made without charge to the
Holder for any documentary stamp or similar taxes that may be payable in respect
of the issue or delivery of such certificate, provided that the Company shall
not be required to pay any tax that may be payable in respect of any transfer
involved in the issuance and delivery of any such certificate upon conversion in
a name other than that of the Holder and the Company shall not be required to
issue or deliver such certificates unless or until the Person or Persons
requesting the issuance thereof shall have paid to the Company the amount of
such tax or shall have established to the satisfaction of the Company that such
tax has been paid.
Section 5. Certain Adjustments.
(a) Stock Dividends and Stock Splits. If the Company, at any time while
this Note is outstanding: (A) shall pay a stock dividend or otherwise make a
distribution or distributions on shares of its Common Stock or any other equity
or equity equivalent securities payable in shares of Common Stock (which, for
avoidance of doubt, shall not include any shares of Common Stock issued by the
Company pursuant to this Note), (B) subdivide outstanding shares of Common Stock
into a larger number of shares, (C) combine (including by way of reverse stock
split) outstanding shares of Common Stock into a smaller number of shares, or
(D) issue by reclassification of shares of the Common Stock any shares of
capital stock of the Company, then the Conversion Price shall be multiplied by a
fraction of which the numerator shall be the number of shares of Common Stock
(excluding treasury shares, if any) outstanding before such event and of which
the denominator shall be the number of shares of Common Stock outstanding after
such event. Any adjustment made pursuant to this Section shall become effective
immediately after the record date for the determination of stockholders entitled
to receive such dividend or distribution and shall become effective immediately
after the effective date in the case of a subdivision, combination or
re-classification.
(b) Calculations. All calculations under this Section 5 shall be made to
the nearest cent or the nearest 1/100th of a share, as the case may be. For
purposes of this Section 5, the number of shares of Common Stock deemed to be
issued and outstanding as of a given date shall be the sum of the number of
shares of Common Stock (excluding treasury shares, if any) issued and
outstanding.
Page 4 of 10
Section 6. Events of Default.
(a) "Event of Default", wherever used herein, means any one of the
following events (whatever the reason and whether it shall be voluntary or
involuntary or effected by operation of law or pursuant to any judgment, decree
or order of any court, or any order, rule or regulation of any administrative or
governmental body):
(i) any default in the payment of (A) the principal of amount of
this Note, or (B) interest on this Note, as and when the same shall become due
and payable (whether on a Conversion Date or the Maturity Date or by
acceleration or otherwise) which default, solely in the case of an interest
payment, is not cured, within 5 Trading Days;
(ii) the Company shall fail to observe or perform any other
covenant or agreement contained in this Note which failure is not cured, if
possible to cure, within 5 Trading Days after notice of such default sent by the
Holder;
(iii) any representation or warranty made herein shall be untrue or
incorrect in any material respect as of the date when made or deemed made;
(iv) (i) the Company shall commence, or there shall be
commenced against the Company, a case under any applicable bankruptcy or
insolvency laws as now or hereafter in effect or any successor thereto, or the
Company commences any other proceeding under any reorganization, arrangement,
adjustment of debt, relief of debtors, dissolution, insolvency or liquidation or
similar law of any jurisdiction whether now or hereafter in effect relating to
the Company or (ii) there is commenced against the Company any such bankruptcy,
insolvency or other proceeding which remains undismissed for a period of 60
days; or (iii) the Company is adjudicated by a court of competent jurisdiction
insolvent or bankrupt; or any order of relief or other order approving any such
case or proceeding is entered; or (iv) the Company suffers any appointment of
any custodian or the like for it or any substantial part of its property which
continues undischarged or unstayed for a period of 60 days; or (v) the Company
makes a general assignment for the benefit of creditors; or (vi) the Company
shall fail to pay, or shall state that it is unable to pay, or shall be unable
to pay, its debts generally as they become due; or (vii) the Company shall call
a meeting of its creditors with a view to arranging a composition, adjustment or
restructuring of its debts; or (viii) the Company shall by any act or failure to
act expressly indicate its consent to, approval of or acquiescence in any of the
foregoing; or (ix) any corporate or other action is taken by the Company for the
purpose of effecting any of the foregoing; or
(v) the Company shall default in any of its obligations under any
mortgage, credit agreement or other facility, indenture agreement, factoring
agreement or other instrument under which there may be issued, or by which there
may be secured or evidenced any indebtedness for borrowed money or money due
under any long term leasing or factoring arrangement of the Company in an amount
exceeding $100,000, whether such indebtedness now exists or shall hereafter be
created and such default shall result in such indebtedness becoming or being
declared due and payable prior to the date on which it would otherwise become
due and payable.
Page 5 of 10
(b) Remedies Upon Event of Default. If any Event of Default occurs, the
full principal amount of this Note, together with interest and other amounts
owing in respect hereof, to the date of acceleration shall become, at the
Holder's election, immediately due and payable in full. The Holder need not
provide and the Company hereby waives any presentment, demand, protest or other
notice of any kind, and the Holder may immediately and without expiration of any
grace period enforce any and all of its rights and remedies hereunder and all
other remedies available to it under applicable law. Such declaration may be
rescinded and annulled by the Holder at any time prior to payment hereunder and
the Holder shall have all rights as a Note holder until such time, if any, as
the full payment under this Section shall have been received by it. No such
rescission or annulment shall affect any subsequent Event of Default or impair
any right consequent thereon.
Section 7. Piggyback Registration Rights. In the event that the Company files
a registration statement with the Securities and Exchange Commission covering
the sale of its shares of Common Stock (other than a registration statement on
Form S-4, S-8 or similar form), then the Holder shall have the right to require
the Company to register the resale of the Conversion Shares on such registration
statement, provided that if such registration is underwritten, the inclusion of
such shares shall be subject to cutback at the discretion of the managing
underwriter and provided further that the inclusion of Conversion Shares on any
registration statement shall be subject and subordinated to the registration
rights of any other holders of the Company's securities. The foregoing
registration rights shall expire on the one-year anniversary of the Original
Issue Date.
Section 8. Accrued Bonus. As of the date hereof, ▇▇▇▇ ▇▇▇▇▇ ("▇▇▇▇▇") was owed
$232,000 from the Company representing accrued but unpaid bonus payments
pursuant to the terms of his employment agreement (the "Accrued Bonus"). ▇▇▇▇▇
has assigned all rights to receive the Accrued Bonus to the Holder. A portion of
the value received by the Company under this Note is the agreement by the Holder
to forgo any amounts owed to it under the Accrued Bonus. Each of the Holder and
▇▇▇▇▇ agree and acknowledge that it or he therefore has no further rights in or
to the Accrued Bonus.
Section 9. Miscellaneous.
(a) Notices. Any and all notices or other communications or deliveries
to be provided by the Holder hereunder, including, without limitation, any
Notice of Conversion, shall be in writing and delivered personally, by
facsimile, sent by a nationally recognized overnight courier service, addressed
to the Company, at ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇,
facsimile number, ▇▇▇-▇▇▇-▇▇▇▇, Attn: CEO, or such other address or facsimile
number as the Company may specify for such purposes by notice to the Holder
delivered in accordance with this Section. Any and all notices or other
communications or deliveries to be provided by the Company hereunder shall be in
writing and delivered personally, by facsimile, sent by a nationally recognized
overnight courier service addressed to the Holder at the facsimile telephone
number or address of such ▇▇▇▇▇▇ appearing on the books of the Company, or if no
such facsimile telephone number or address appears, at the principal place of
business of the Holder. Any notice or other communication or deliveries
hereunder shall be deemed given and effective on the earliest of (i) the date of
transmission, if such notice or communication is delivered via facsimile at the
facsimile telephone number specified in this Section prior to 5:30 p.m. (New
York City time), (ii) the date after the date of transmission, if such notice or
communication is delivered via facsimile at the facsimile telephone number
specified in this Section later than 5:30 p.m. (New York City time) on any date
and earlier than 11:59 p.m. (New York City time) on such date, (iii) the second
Business Day following the date of mailing, if sent by nationally recognized
overnight courier service, or (iv) upon actual receipt by the party to whom such
notice is required to be given.
Page 6 of 10
(b) Absolute Obligation. Except as expressly provided herein, no
provision of this Note shall alter or impair the obligation of the Company,
which is absolute and unconditional, to pay the principal of, and interest on,
this Note at the time, place, and rate, and in the coin or currency, herein
prescribed. This Note is a direct debt obligation of the Company.
(c) Lost or Mutilated Note. If this Note shall be mutilated, lost,
stolen or destroyed, the Company shall execute and deliver, in exchange and
substitution for and upon cancellation of a mutilated Note, or in lieu of or in
substitution for a lost, stolen or destroyed Note, a new Note for the principal
amount of this Note so mutilated, lost, stolen or destroyed but only upon
receipt of evidence of such loss, theft or destruction of such Note, and of the
ownership hereof, and indemnity, if requested, all reasonably satisfactory to
the Company.
(d) Security Interest. This Note is a direct debt obligation of the
Company and is secured by a first priority perfected security interest in all of
the assets of the Company for the benefit of the Holder.
(e) Governing Law. All questions concerning the construction, validity,
enforcement and interpretation of this Note shall be governed by and construed
and enforced in accordance with the internal laws of the State of Delaware,
without regard to the principles of conflicts of law thereof.
(f) Waiver. Any waiver by the Company or the Holder of a breach of any
provision of this Note shall not operate as or be construed to be a waiver of
any other breach of such provision or of any breach of any other provision of
this Note. The failure of the Company or the Holder to insist upon strict
adherence to any term of this Note on one or more occasions shall not be
considered a waiver or deprive that party of the right thereafter to insist upon
strict adherence to that term or any other term of this Note. Any waiver must be
in writing.
(g) Severability. If any provision of this Note is invalid, illegal or
unenforceable, the balance of this Note shall remain in effect, and if any
provision is inapplicable to any Person or circumstance, it shall nevertheless
remain applicable to all other Persons and circumstances. If it shall be found
that any interest or other amount deemed interest due hereunder violates
applicable laws governing usury, the applicable rate of interest due hereunder
shall automatically be lowered to equal the maximum permitted rate of interest.
The Company covenants (to the extent that it may lawfully do so) that it shall
not at any time insist upon, plead, or in any manner whatsoever claim or take
the benefit or advantage of, any stay, extension or usury law or other law which
would prohibit or forgive the Company from paying all or any portion of the
principal of or interest on this Note as contemplated herein, wherever enacted,
now or at any time hereafter in force, or which may affect the covenants or the
performance of this Note, and the Company (to the extent it may lawfully do so)
hereby expressly waives all benefits or advantage of any such law, and covenants
that it will not, by resort to any such law, hinder, delay or impede the
execution of any power herein granted to the Holder.
Page 7 of 10
(h) Next Business Day. Whenever any payment or other obligation
hereunder shall be due on a day other than a Business Day, such payment shall be
made on the next succeeding Business Day.
(i) Headings. The headings contained herein are for convenience only, do
not constitute a part of this Note and shall not be deemed to limit or affect
any of the provisions hereof.
(j) Seniority. This Note is senior in right of payment to any and all
other indebtedness of the Company.
*********************
Page 8 of 10
IN WITNESS WHEREOF, the Company has caused this Note to be duly executed
by a duly authorized officer as of the date first above indicated.
AURIGA LABORATORIES, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Chairman and CEO
AGREED AND ACKNOWLEDGED
SORRENTO FINANCIAL PARTNERS, LLC
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
---------------------------
Name: ▇▇▇▇ ▇▇▇▇▇
Title: Manager
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-------------------------------------------------------------
▇▇▇▇ ▇▇▇▇▇, in his individual capacity, with respect to Section 8
Page 9 of 10
ANNEX A
NOTICE OF CONVERSION
The undersigned hereby elects to convert principal under the Senior
Secured Convertible Note of Auriga Laboratories, Inc., a Delaware corporation
(the "Company"), due on May 15, 2007, into shares of common stock, par value
$0.001 (the "Common Stock"), of the Company according to the conditions hereof,
as of the date written below. If shares are to be issued in the name of a person
other than the undersigned, the undersigned will pay all transfer taxes payable
with respect thereto and is delivering herewith such certificates and opinions
as reasonably requested by the Company in accordance therewith. No fee will be
charged to the holder for any conversion, except for such transfer taxes, if
any.
Conversion calculations:
Date to Effect Conversion:
Principal Amount of Note to be Converted:
Number of shares of Common Stock to be issued:
Signature:
Name:
Address:
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