ex10-5.htm


    Exhibit
10.5

     

    THIS
NOTE, THE SHARES OF COMMON STOCK ISSUABLE UPON CONVERSION OF THIS NOTE (THE
“SECURITIES”) HAVE BEEN ACQUIRED FOR INVESTMENT PURPOSES ONLY AND MAY NOT BE
TRANSFERRED UNTIL (i) A REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933,
AS AMENDED (THE “ACT”) SHALL HAVE BECOME EFFECTIVE WITH RESPECT THERETO OR (ii)
RECEIPT BY THE COMPANY OF AN OPINION OF COUNSEL REASONABLY SATISFACTORY TO THE
COMPANY TO THE EFFECT THAT REGISTRATION UNDER THE ACT IS NOT REQUIRED IN
CONNECTION WITH SUCH PROPOSED TRANSFER NOR IS IN VIOLATION OF ANY APPLICABLE
STATE SECURITIES LAWS. THIS LEGEND SHALL BE ENDORSED UPON ANY NOTE ISSUED IN
EXCHANGE FOR THIS NOTE AND ANY SECURITIES ISSUABLE UPON CONVERSION OF THIS NOTE
(EXCEPT AS OTHERWISE PROVIDED BELOW).

    


    SECOND
AMENDED AND RESTATED

    CONVERTIBLE
PROMISSORY NOTE

    


    
      	
              US
      $27,500

            	
              April
      28, 2009,

            
	 
      	
              with an effective
      date

            
	 
      	
              of
      September 18, 2007

            


    

    


    FOR VALUE RECEIVED, the
undersigned, RX Scripted, Inc., which has a business address of 201 Creekvista
Drive, Holly Springs, North Carolina 27540 ("Maker"), hereby promises to pay to
the order of The Loev Law Firm, PC, whose address is 6300 West Loop South, Suite
280, Bellaire, Texas 77401 ("Payee"), the principal sum of Twenty-Seven Thousand
Five Hundred Dollars ($27,500), in lawful money in United States of America,
which shall be legal tender, bearing interest and payable as provided
herein.  This Second Amended and Restated Convertible Promissory Note
(this “Note” or “Promissory Note”) has an effective date of September 18, 2007,
the date of the parties’ entry into an engagement agreement (the “Engagement
Agreement”).

    


    This Note
amends, replaces and supersedes a promissory note entered into between the
parties on or around March 11, 2008 and an Amended and Restated Convertible
Promissory Note entered into between the parties on November 19,
2008.

    


    The Engagement Agreement required the
Maker to pay the Payee $35,000  in total, along with 1,500,000 shares
of the Maker’s common stock, which shares  have previously been
issued, for legal services rendered and to be rendered in connection with the
preparation of articles of incorporation, bylaws, organizational minutes, a
private placement memorandum and an accompanying subscription agreement and
registration rights agreement, an SB-2 registration statement for filing with
the Securities and Exchange Commission, amended filings of the Form SB-2
registration statement, filing of Form D with the SEC and responding to NASD
comments in connection with a 15c211 filing, as well as corporate/securities
matters requested by the Company.  That amount includes $5,000 upon
execution of the Engagement Agreement, which amount has already been received by
the Payee.  This Promissory Note evidences the remaining $27,500 owed
to Payee pursuant to the Engagement Agreement.


    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

    
      	
              1.

            	
              Interest
      on the unpaid balance of this Note shall bear interest at the rate of
      seven percent (7%) per annum, which interest shall accrue from the
      effective date until the Maturity Date (as defined below), unless prepaid
      prior to such Maturity Date. All past-due principal and interest (which
      failure to pay such amounts shall be defined herein as an “Event of
      Default”) shall bear interest at the rate of fifteen percent (15%) per
      annum until paid in full.  Interest will be computed on the
      basis of a 360-day year.

            


    

    


    
      	
              2.

            	
              The
      principal amount of this Note shall be due and payable on October 31, 2009
      (the “Maturity Date”).

            


    

    


    
      	
              3.

            	
              This
      Note may be prepaid in whole or in part, at any time and from time to
      time, without premium or penalty.

            


    

    


    
      	
              4.

            	
              This
      Note (and any accrued and unpaid interest hereon) shall be convertible
      into shares of Maker’s common stock from time to time if not paid on or
      before the Maturity Date, at the sole option of the Payee, upon five (5)
      days written notice from the Payee to the Maker of the Payee’s desire to
      convert such Note into shares of common stock at the rate of one share of
      the Maker’s common stock for each $0.10 owed to Payee pursuant to this
      Note (the “Conversion Price”), which conversion shall be evidenced by the
      receipt of the Maker of a Conversion Notice attached hereto as Exhibit
      A.  The Maker shall have five (5) business days after the
      receipt by the Payee of a Conversion Notice to deliver the shares of
      common stock converted to Payee (the “Conversion Shares”).  If
      such shares are not delivered prior the sixth (6th)
      day following the Maker’s receipt of the Conversion Notice, such failure
      to deliver the shares shall constitute an Event of Default of this Note,
      which shall not discharge the Maker’s requirement to deliver the
      Conversion Shares.

            


    

    


    
      	
              5.

            	
              If
      the Maker at any time or from time to time on or after the effective date
      of the  issuance of this Note (the “Original Issuance Date”)
      effects a subdivision of its outstanding common stock, the Conversion
      Price then in effect immediately before that subdivision shall be
      proportionately decreased, and conversely, if the Maker at any time or
      from time to time on or after the Original Issuance Date combines its
      outstanding shares of common stock into a smaller number of shares, the
      Conversion Price then in effect immediately before the combination shall
      be proportionately increased.

            


    

    
      
        
        

      

      
        -2-

        
          

        

      

      
        
        

      

    

    
      	
              6.

            	
              Conversion
      Shares may not be sold or transferred unless  (i) such shares
      are sold pursuant to an effective registration statement under the
      Securities Act of 1933, as amended (the “Act”) or (ii) the Maker or its
      transfer agent shall have been furnished with an opinion
      of  counsel (which opinion shall be in form, substance and scope
      customary for opinions of counsel in comparable transactions) to the
      effect that the shares to be sold or transferred may be sold or
      transferred pursuant to an exemption from such registration or
      (iii) such shares are sold or transferred pursuant to Rule 144 under
      the Act (or a successor rule) (“Rule 144”) or (iv) such shares are
      transferred to an “affiliate” (as defined in Rule 144) of the Holder who
      agrees to sell or otherwise transfer the shares only in accordance with
      this Note and who is an accredited investor.  Until such time as
      the Conversion Shares have been registered under the Act or otherwise may
      be sold pursuant to Rule 144 without any restriction as to the number of
      securities as of a particular date that can then be immediately sold, each
      certificate for Conversion Shares that has not been so included in an
      effective registration statement or an exemption that permits removal of
      the legend, shall bear a legend substantially in the following form, as
      appropriate:

            


    

    


    “THESE
SECURITIES HAVE NOT 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.”

     

    The
legend set forth above shall be removed and the Maker shall issue to the Payee a
new certificate therefor free of any transfer legend if (i) the Maker or its
transfer agent shall have received an opinion of counsel, in form, substance and
scope customary for opinions of counsel in comparable transactions, to the
effect that a public sale or transfer of such common stock may be made without
registration under the Act and the shares are so sold or transferred, (ii) such
Payee provides the Maker or its transfer agent with reasonable assurances that
the Conversion Shares can be sold pursuant to Rule 144 or (iii) if the
Conversion Shares  are registered for resale under an effective
registration statement filed under the Act.

    
      
        
        

      

      
        -3-

        
          

        

      

      
        
        

      

    

    
      	
              7.

            	
              All
      shares of common stock which may be issued upon conversion of this Note
      will, upon issuance by the Maker in accordance with the terms of this
      Note, be validly issued, free from all taxes and liens with respect to the
      issuance thereof (other than those created by the holders), free from all
      pre-emptive or similar rights and fully paid and
      non-assessable.

            


    

    


    
      	
              8.

            	
              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.

            


    

    


    
      	
              9.

            	
              This
      Note shall be binding upon and inure to the benefit of the Payee named
      herein and Payee’s respective successors and assigns.  Each
      holder of this Note, by accepting the same, agrees to and shall be bound
      by all of the provisions of this Note.  Payee may assign this
      Note or any of its rights, interests or obligations to this Note without
      the prior written approval of
Maker.

            


    

    


    
      	
              10.

            	
              No
      provision of this Note shall alter or impair the obligation of Maker to
      pay the principal of and interest on this Note at the times, places and
      rates, and in the coin or currency, herein
  prescribed.

            


    

    


    
      	
              11.

            	
              The
      Maker will do or cause to be done all things reasonably necessary to
      preserve and keep in full force and effect its corporate existence, rights
      and franchises and comply with all laws applicable to the Maker, except
      where the failure to comply could not reasonably be expected to have a
      material adverse effect on the Maker. Failure to comply with this
      provision shall constitute an Event of
Default.

            


    

    


    
      	
              12.

            	
              Notwithstanding
      anything to the contrary in this Note or any other agreement entered into
      in connection herewith, whether now existing or hereafter arising and
      whether written or oral, it is agreed that the aggregate of all interest
      and any other charges constituting interest, or adjudicated as
      constituting interest, and contracted for, chargeable or receivable under
      this Note or otherwise in connection with this loan transaction, shall
      under no circumstances exceed the Maximum
Rate.

            


    

    
      
        
        

      

      
        -4-

        
          

        

      

      
        
        

      

    

    
      	
              13.

            	
              The
      Maker agrees to keep reserved such number of shares of common stock as
      will permit full conversion of the Note at any time or from time to time
      at the Conversion Price (as defined
herein);

            


    

    


    
      	
              14.

            	
              In
      the event the maturity of this Note is accelerated by reason of an Event
      of Default under this Note, any other agreement entered into in connection
      herewith or therewith, or by voluntary prepayment by Maker or otherwise,
      then earned interest may never include more than the Maximum Rate
      allowable by law, computed from the dates of each advance of the loan
      proceeds outstanding until payment.  If from any circumstance
      any holder of this Note shall ever receive interest or any other charges
      constituting interest, or adjudicated as constituting interest, the
      amount, if any, which would exceed the Maximum Rate shall be applied to
      the reduction of the principal amount owing on this Note, and not to the
      payment of interest; or if such excessive interest exceeds the unpaid
      balance of principal hereof, the amount of such excessive interest that
      exceeds the unpaid balance of principal hereof shall be refunded to
      Maker.  In determining whether or not the interest paid or
      payable exceeds the Maximum Rate, to the extent permitted by applicable
      law (i) any nonprincipal payment shall be characterized as an expense, fee
      or premium rather than as interest; and (ii) all interest at any time
      contracted for, charged, received or preserved in connection herewith
      shall be amortized, prorated, allocated and spread in equal parts during
      the period of the full stated term of this Note.  The term
      "Maximum Rate" shall mean the maximum rate of interest allowed by
      applicable federal or state law.

            


    

    


    
      	
              15.

            	
              Except
      as provided herein, Maker and any sureties, guarantors and endorsers of
      this Note jointly and severally waive demand, presentment, notice of
      nonpayment or dishonor, notice of intent to accelerate, notice of
      acceleration, diligence in collecting, grace, notice and protest, and
      consent to all extensions without notice for any period or periods of time
      and partial payments, before or after maturity, without prejudice to the
      holder.  The holder shall similarly have the right to deal in
      any way, at any time, with one or more of the foregoing parties without
      notice to any other party, and to grant any such party any extensions of
      time for payment of any of said indebtedness, or to grant any other
      indulgences or forbearance whatsoever, without notice to any other party
      and without in any way affecting the personal liability of any party
      hereunder.  If any efforts are made to collect or enforce this
      Note or any installment due hereunder, the undersigned agrees to pay all
      collection costs and fees, including reasonable attorney's
      fees.

            


    

    


    
      	
              16.

            	
              A
      copy of this Promissory Note signed by one party and faxed to another
      party shall be deemed to have been executed and delivered by the signing
      party as though an original.  A photocopy of this Promissory
      Note shall be effective as an original for all
  purposes.

            


    

    


    
      	
              17.

            	
              This
      Note shall be construed and enforced under and in accordance with the laws
      of the State of Texas.

            


    

    
 

    


    


    [Remainder
of page left intentionally blank. Signature page follows.]

     

     

    
      
        
        

      

      
        -5-

        
          

        

      

      
        
        

      

    

    IN
WITNESS WHEREOF, Maker has duly executed this Note as of the day and year first
above written, with an effective date of September 18, 2007.

    


    
      
        
          
            	 
      	
                    RX Scripted, Inc.

                  
	 
      	 
      
	 
      	
                    /s/
      MaryAnne McAdams

                  
	 
      	
                    MaryAnne
      McAdams

                  
	 
      	
                    Chief
      Executive Officer and
President

                  


          

        

      

    

    
      
        
        

      

      
        -6-

        
          

        

      

      
        
        

      

    

    EXHIBIT
A

    


    Conversion Election
Form

    


    


    ____________,
20__

    


    RX
Scripted, Inc.

    201
Creekvista Drive

    Holly
Springs, North Carolina 27540

    


    Re:  Conversion of Promissory
Note

    


    Gentlemen:

    


    You are hereby notified that, pursuant
to, and upon the terms and conditions of that certain Amended and Restated
Convertible Promissory Note of RX Scripted, Inc. (the “Company”), in the
principal amount of $27,500 (the “Note”), held by me, I
hereby elect to exercise my right of Conversion (as such term in defined in the
Note), in connection with $__________ of the amount currently owed under the
Note, effective as of the date of this writing.

    


    Please provide me with all applicable
instructions for the Conversion of the Note, and issue certificate(s) for the
applicable shares of the Company’s Common Stock issuable upon the Conversion, in
the name of the person provided below.

    


    


    
      	 
      	
              Very
      truly yours,

            
	 
      	 
      
	 
      	 
      
	 
      	
              ___________________________

            
	 
      	
              Name:

            


    

    


    


    Please
issue certificate(s) for Common Stock as follows:

    


    ______________________________________________

    Name

    


    ______________________________________________

    Address

    


    ______________________________________________

    Social Security No. of
Shareholder


    
      
        
        

      

      
        -7-