Exhibit 10.2


 


THIS NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED (THE “ACT”), AND SUCH NOTE MAY NOT BE OFFERED,
SOLD, TRANSFERRED, PLEDGED OR HYPOTHECATED IN THE ABSENCE OF SUCH REGISTRATION
OR AN EXEMPTION THEREFROM UNDER THE ACT AND THE RULES AND REGULATIONS
THEREUNDER AND SUCH APPLICABLE STATE SECURITIES LAWS.


 


THIS NOTE AND THE RIGHTS AND OBLIGATIONS EVIDENCED
HEREBY ARE SUBORDINATE TO THE INDEBTEDNESS (INCLUDING INTEREST) OF THE
BORROWERS REPRESENTED BY THAT CERTAIN AMENDED AND RESTATED LOAN AND SECURITY
AGREEMENT DATED AS OF SEPTEMBER 11, 2009 (THE “A&R LOAN AGREEMENT”), BY AND
AMONG THE SUBSIDIARY AND THE SENIOR LENDER, AS SUCH A&R LOAN AGREEMENT MAY BE
AMENDED, SUPPLEMENTED, RESTATED OR OTHERWISE MODIFIED FROM TIME TO TIME OR ANY REFINANCINGS
THEREOF.


 


SENIOR SECURED
SUBORDINATED PROMISSORY NOTE


 


	
  $

  	
  , 2009

  



 


FOR VALUE RECEIVED, the undersigned, Xplore
Technologies Corp., a Delaware corporation, (the “Parent”) and Xplore
Technologies Corporation of America, a Delaware corporation and a wholly-owned
subsidiary of the Parent (the “Subsidiary” and collectively with the
Parent, the “Borrowers”), promise to pay to                   
(the “Holder”),
the principal sum of                                 
DOLLARS ($                ) with interest on the unpaid balance from
the date hereof, at the rate of 10% per annum on the unpaid principal amount,
in lawful money of the United States of America or as otherwise provided in Section 3
hereof, at                                                                           , or at such
other place as the
Holder may designate in writing. This Note is one of the senior secured
subordinated promissory notes (collectively, the “Notes”) referred to
in, and purchased pursuant to, the Note Purchase Agreement dated November 5,
2009, as amended from time to time, among the Borrowers and the Purchasers
named therein (the “Note Purchase Agreement”) and evidences a borrowing
from the Holder by the Borrowers under the Note Purchase Agreement.  The obligations of the Borrowers under this
Note are secured as provided in the Note Purchase Agreement and the Loan
Documents.


 


1.             Maturity Date.  The principal of
this Note, together will all unpaid interest and any other fees or expenses
otherwise due and owed to the Holder under the Note Purchase Agreement, shall
be due and payable on December 31, 2011 (the “Maturity Date”). The Borrowers
may prepay the Note in whole or in part, at any time prior to the Maturity
Date, without penalty.


 


2.             Pro-Rata Payment.  If the Borrowers
are not able to pay to the holders of the Notes the full amounts due at any
time when payments under the Notes become due and payable by the Borrowers,
either on the Maturity Date or upon the occurrence of


 

















 


an Event of Default, or
upon prepayment at the option of the Borrowers, the holders of the Notes shall
share ratably in any distribution of the Borrowers pro rata in proportion to
the respective principal amounts of each such holder’s Notes and senior to the holders
of the Fall 2008 Notes (as defined in the Note Purchase Agreement) and the
Spring 2009 Notes (as defined in the Note Purchase Agreement).


 


3.             Payment of Interest.


 


(a)           Interest on the unpaid principal amount of this Note shall
be due and payable quarterly on March 31, June 30, September 30 and
December 31 of each calendar year the Note is outstanding commencing on December 31,
2009 and ending with a final quarterly interest payment on the Maturity Date in
cash or, at the option of the Parent, in shares of the Parent’s Common Stock at
75% of the then current market price of such Common Stock on the interest
payment date. For purposes hereof, the term then current market price means the
volume weighted average trading price, as traded on the OTC Bulletin Board or
such other securities exchange or quotation system which on the date of
determination constitutes the principal securities market for the shares of the
Parent’s Common Stock, for the five (5) trading days prior to the
applicable interest payment date.


 


(b)           All computations of interest payable hereunder shall
be made on the basis of the actual number of days in the period for which such
interest is payable and a year of 365 or 366 days, as applicable.


 


(c)           Notwithstanding any other provision of this Note, to
the extent permitted by applicable law, interest shall be due and payable on
any overdue installment of principal or interest on this Note (including
amounts due and unpaid upon any acceleration of this Note) at a rate equal to
the lesser of (i) fourteen percent (14%) and (ii) the maximum rate
permitted by applicable law (the “Maximum Rate”).


 


4.             Event of Default; Remedies.  Upon the occurrence and during the continuance
of an Event of Default, this Note may be accelerated in the manner described in
the Note Purchase Agreement and the Holder and the Agent shall have all of the
rights and remedies provided in the Note Purchase Agreement and the Loan
Documents.


 


5.             Waiver of Certain Rights. 
Subject to any applicable notice periods, all parties to this Note,
including Borrowers and any sureties, endorsers, or guarantors, hereby waive
protest, presentment, notice of dishonor, and notice of acceleration of
maturity and agree to continue to remain bound for the payment of principal,
interest and all other sums due under this Note notwithstanding any change or
changes by way of release, surrender, exchange, modification or substitution of
any security for this Note or by way of any extension or extensions of time for
the payment of principal and interest; and all such parties waive all and every
kind of notice of such change or changes and agree that the same may be without
notice or consent of any of them.


 


6.             Enforcement.  The Holder
may enforce this Note as described in the Note Purchase Agreement.


 


2

















 


7.             Subordination.  Repayment of
this Note shall be subordinated to the extent and in the manner set forth in any
subordination agreement between the Borrowers, the Agent on behalf of all the
holders of the Notes and any Senior Lender of the Borrowers.


 


8.             Security.  This Note is
entitled to the benefits, granted to the Agent on behalf of the Purchasers, set
forth in the Security Agreement.


 


9.             Priority.  The indebtedness
under this Note shall rank senior to  the indebtedness
under the Fall 2008 Notes and the Spring 2009 Notes.


 


10.           Definitions.  Capitalized
terms used herein and not otherwise defined shall have the meanings ascribed to
such terms in the Note Purchase Agreement.


 


11.           Miscellaneous.  The following
general provisions apply:


 


(a)           This Note, and the obligations and rights of the
Borrowers and the Holder hereunder, shall be binding upon and inure to the
benefit of the Borrowers, the Holder, and their respective heirs, personal
representatives, successors and assigns.


 


(b)           All notices, requests, consents and demands hereunder shall
be made in writing in the manner described in the Note Purchase Agreement.


 


(c)           Whenever possible, each provision of this Note will be
interpreted in such manner as to be effective and valid under applicable law,
but if any provision of this Note is held to be invalid, illegal or
unenforceable in any respect under any applicable law or rule in any
jurisdiction, such invalidity, illegality or unenforceability will not affect
any other provision or any other jurisdiction, but this Note will be reformed,
construed and enforced in such jurisdiction to the greatest extent possible to
carry out the intentions of the parties hereto.


 


(d)           This Note shall be construed and enforced in
accordance with, and the rights of the parties shall be governed by, the laws
of the State of New York.  Each of the
parties hereto hereby irrevocably consents to the (non-exclusive) jurisdiction
of the courts of the State of New York and of any Federal court located therein
in connection with any suit, action or other proceeding arising out of or
relating to this Note and waives any objection to venue in the State of New
York.


 


(e)           Recourse under this Note shall be solely as provided
in the Note Purchase Agreement and the Loan Documents and in no event to the
officers, directors or shareholders of the Borrowers.


 


(f)            No provision in this Note, or in any instrument or any
other document evidencing the obligations hereunder, executed by the Borrowers
or any guarantor, endorser or other party now or hereafter becoming liable for
payment of this Note, shall require the payment or permit the collection of
interest in excess of the Maximum Rate. 
If any excess of interest in such respect is provided for herein or in
any such instrument, or other document, the provisions of this paragraph shall
govern, and 


 


3

















 


neither of the Borrowers nor any guarantor, endorser
or other party shall be obligated to pay the amount of such interest to the
extent that it is in excess of the Maximum Rate.  The intention of the Borrowers and the Holder
being to conform strictly to any applicable federal or state usury laws now in
force, all promissory notes, instruments and other documents executed by the
Borrowers or any guarantor, endorser or other party evidencing the obligations
under this Note shall be held subject to reduction to the amount allowed under
said usury laws as now or hereafter construed by the courts having
jurisdiction.


 


(g)           Reference is hereby made to Section 11.18 of the
Note Purchase Agreement that authorizes the Agent and/or the holders of the
Notes holding at least 51% of the aggregate principal amount of the Notes then
outstanding to take action on behalf of all the holders of the Notes.


 


Signature on the following page


 


4

















 


IN WITNESS WHEREOF, each
Borrower has caused this instrument to be executed in its corporate name by a
duly authorized officer, by order of its Board of Directors as of the day and year
first above written.


 


 


	
   

  	
  XPLORE TECHNOLOGIES
  CORP.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Michael J. Rapisand

  
	
   

  	
   

  	
  Chief Financial Officer

  
	
   

  	
   

  	
   

  
	
   

  	
  XPLORE TECHNOLOGIES
  CORPORATION OF AMERICA

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Michael J. Rapisand

  
	
   

  	
   

  	
  Chief Financial
  Officer