ex10-12.htm


    Exhibit
10.12

     

    AMENDED
AND RESTATED

    PROMISSORY
NOTE

     

    
      	
              $275,000

            	
              March
      25, 2010 to be Effective February 17,
2010 

            


    

     

    FOR VALUE
RECEIVED, SUMOTEXT
Incorporated, a Nevada Corporation (the “Company”),
having an address of 2100 Riverdale, Suite 200, Little Rock, Arkansas, 72202,
hereby promises to pay to the order of Tim Miller, and/or assigns
(the “Holder”),
at the offices of Holder at 2100 Riverdale, Suite 200, Little Rock, Arkansas,
72202, or such other place as may be designated by Holder to the Company in
writing, the aggregate principal amount of Two Hundred and Seventy-Five Thousand
Dollars ($275,000), together with interest on the unpaid principal amount
hereof, upon the terms and conditions hereinafter set forth.

     

    
      	
              1.

            	
              Loan
      Amount.  This Amended and Restated Promissory Note
      (this “Note”,
      “Promissory
      Note” or “Agreement”),
      amends, restates and supersedes a Convertible Promissory Note entered into
      between the Company and Holder on February 17, 2010, and evidences the
      loan of Two Hundred and Seventy-Five Thousand Dollars  ($275,000),
      from the Holder to the Company (hereinafter referred to as the “Loan”
      or the “Principal”),
      pursuant to the following Promissory Notes previously entered into by and
      between the Company and Holder, which previous Promissory Notes are hereby
      superseded, combined and replaced by this Note and the terms and
      conditions herein (the “Previous
      Notes”):

               

              ·$100,000 borrowed by the Company
      from Holder on April 16, 2009, which accrued interest at the rate of 10%
      per annum and was due and payable on April 15,
      2010;  

               

              ·$50,000
      borrowed by the Company from Holder on July 1, 2009, which accrued
      interest at the rate of 10% per annum and was due and payable on July 2,
      2010;

               

              ·$50,000
      borrowed by the Company from Holder on August 3, 2009, which accrued
      interest at the rate of 10% per annum and was due and payable on August 4,
      2010; and

               

              ·$75,000
      borrowed by the Company from Holder on August 27, 2009, which accrued
      interest at the rate of 10% per annum and was due and payable on August
      28, 2010.

               

              Total
      accrued interest on the Previous Notes has been paid as of the effective
      date of this Note.

            
	 
      	 
      	 
      
	
              2.

            	
              Payment
      Terms.  The Company promises to pay to Holder the balance of
      Principal, together with accrued and unpaid interest, on February 17,
      2012 (the “Maturity
      Date”), unless this Note is earlier prepaid as herein
      provided.  All payments hereunder shall be made in lawful money of
      the United States of America.  Payment shall be credited first to the
      accrued interest then due and payable and the remainder to
      Principal.

            
	 
      	 
      	 
      
	
              3.

            	
              Interest.  Interest
      on the outstanding portion of Principal of this Note shall accrue at a
      rate of eight percent (8%) per annum, and be payable quarterly in
      arrears.  All computations of interest shall be made on the basis of
      a 360-day year for actual days elapsed.  Such interest shall accrue
      and be paid upon the Maturity Date of the
Loan.

            


    

    


    
      	 
      	
              a.

            	
              Notwithstanding
      any provision in this Note, the total liability for payments of interest
      and payments in the nature of interest, including all charges, fees,
      exactions, or other sums which may at any time be deemed to be interest,
      shall not exceed the limit imposed by the usury laws of the State of
      Arkansas or the applicable laws of the United States of America, whichever
      shall be higher (the “Maximum
      Rate”).

            


    

    


    
      	 
      	
              b.

            	
              In
      the event the total liability for payments of interest and payments in the
      nature of interest, including, without limitation, all charges, fees,
      exactions or other sums which may at any time be deemed to be interest,
      which for any month or other interest payment period exceeds the Maximum
      Rate, all sums in excess of those lawfully collectible as interest for the
      period in question (and without further agreement or notice by, among or
      to the Holder the undersigned) shall be applied to the reduction of the
      principal balance, with the same force and effect as though the
      undersigned had specifically designated such excess sums to be so applied
      to the reduction of the principal balance and the Holder had agreed to
      accept such sums as a premium-free prepayment of principal; provided,
      however, that the Holder may, at any time and from time to time, elect, by
      notice in writing to the undersigned, to waive, reduce or limit the
      collection of any sums in excess of those lawfully collectible as interest
      rather than accept such sums as a prepayment of the principal
      balance.  The undersigned does not intend or expect to pay nor
      does the Holder intend or expect to charge, accept or collect any interest
      under this Note greater than the Maximum
Rate.

            


    

      

    
      
        
        

      

      
        -1-

        
          

        

      

      
        
        

      

    

    
      	 
      	
              c.

            	
              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.

            


    

     

    
      	
              4.

            	
              Warrants. 
      In connection with Holder agreeing to be bound by the terms and conditions
      of this Note, the Company agrees to grant the Holder warrants to purchase
      an aggregate of 550,000 shares of the Company’s common stock at an
      exercise price of $0.50 per share, which warrants shall have a term of two
      years and be evidenced by the Warrant Agreement attached hereto as Exhibit
      A (the “Warrant”). 

            


    

    


    
      	
              5.

            	
              Redemption. 
      This Note may be redeemed by the Company by payment of the entire
      Principal and interest outstanding under this Note in cash to
      Holder. 

            


    

     

    
      	 
      	
              a.

            	
              This
      Note may be prepaid in whole or in part at any time without
      penalty.

            
	 
      	 
      	 
      
	 
      	
              b.

            	
              Any
      partial prepayment shall be applied first to any accrued interest and then
      to any principal Loan amount outstanding.

            
	 
      	 
      	 
      
	 
      	
              c.

            	
              This
      Note and the repayment hereof will be senior to all of the Company’s other
      privately held outstanding notes, other than a $150,000 promissory note
      held by Steve Bova (“Seniority”),
      and the Company shall be required to take prompt action to obtain a
      confirmation of such Seniority from its current note holders following the
      parties’ execution of this Note.

            


    

     

    
      	
              6.

            	
              Representations
      and Warranties of the Company. The Company represents and warrants
      to Holder as follows: 

            


    

     

    
      	 
      	
              a.

            	
              The
      execution and delivery by the Company of this Note (i) are within the
      Company’s corporate power and authority, and (ii) have been duly
      authorized by all necessary corporate action.  Further, the
      undersigned is a duly authorized representative of the Company and has
      been authorized by a resolution of the Board of Directors of the Company
      to exercise any and all documents necessary to effectuate the transaction
      contemplated hereby.

            


    

    


    
      	 
      	
              b.

            	
              This
      Note is a legally binding obligation of the Company, enforceable against
      the Company in accordance with the terms hereof, except to the extent that
      (i) such enforceability is limited by bankruptcy, insolvency,
      reorganization, moratorium or other laws relating to or affecting
      generally the enforcement of creditors’ rights, and (ii) the availability
      of the remedy of specific performance or in injunctive or other equitable
      relief is subject to the discretion of the court before which any
      proceeding therefore may be
brought.

            


    

    


    
      
        
        

      

      
        -2-

        
          

        

      

      
        
        

      

    

    
      	
              7.

            	
              Representations,
      Warranties and Covenants of Holder. Holder represents and warrants
      to the Company, and agrees, as follows (collectively the “Representations”):

            


    

      

    
      	 
      	
              a.

            	
              The
      Warrant and any shares of common stock issuable in connection with the
      exercise of the Warrant (“Warrant
      Shares”) are being acquired by Holder for its own account for
      investment and not with a view to, or for sale in connection with, any
      distribution thereof.

            


    

      

    
      	 
      	
              b.

            	
              Holder
      is either an “accredited
      investor” as such term is defined under Rule 501 of the Securities
      Act of 1933, as amended (the “Act”);
      and/or Holder has thoroughly read, reviewed, had a chance to ask questions
      to the Company regarding, and has all of Holder’s questions answered
      sufficiently, the Company’s Form 10-K, Form 10-Q and Form 8-K filings on
      the Securities and Exchange Commission’s Edgar filing website
      (www.sec.gov), including the risk factors, description of business
      operations, unaudited and audited financial information, results of
      operations and other disclosures therein (the “Filings”).  In
      connection with the Filings or otherwise, the Holder has reviewed and has
      access to similar information regarding the Company as would be found in a
      Registration Statement under the Act, and is familiar with the Company,
      its business operations, results of operations and risk factors regarding
      Holders investment herein.  Holder further represents to the
      Company that Holder does not need a Purchaser Representative in connection
      with the investment in the Note or Common Stock.

            
	 
      	 
      	 
      
	 
      	
              c.

            	
              Holder
      has sufficient knowledge and experience in financial and business matters
      and is capable of evaluating the risks and merits of Holder’s investment
      in the Company; Holder believes that Holder has received or had access to
      all information Holder considers necessary or appropriate to make an
      informed investment decision with respect to this Note; and Holder is able
      financially to bear the risk of losing Holder’s full investment in this
      Note.

            
	 
      	 
      	 
      
	 
      	
              d.

            	
              Holder
      understands that the Warrant and the Warrant Shares have not been
      registered under the Securities Act of 1933, as amended (the “Securities
      Act”) or registered or qualified under any the securities laws of
      any state or other jurisdiction, are “restricted
      securities,” and cannot be resold or otherwise transferred unless
      they are registered under the Securities Act, and registered or qualified
      under any other applicable securities laws, or an exemption from such
      registration and qualification is available. Prior to any proposed
      transfer of the Warrant or the Warrant Shares, Holder shall, among other
      things, give written notice to the Company of its intention to effect such
      transfer, identifying the transferee and describing the manner of the
      proposed transfer and, if requested by the Company, accompanied by (i)
      investment representations by the transferee similar to those made by
      Holder in this Section 7 and (ii) an opinion of counsel satisfactory to
      the Company to the effect that the proposed transfer may be effected
      without registration under the Securities Act and without registration or
      qualification under applicable state or other securities laws. Each
      certificate issued to evidence the Warrant and the Warrant Shares shall
      bear a legend as follows:

               

              "The
      securities represented by this certificate have not been registered under
      the Securities Act of 1933 or any state securities act.  The
      securities have been acquired for investment and may not be sold,
      transferred, pledged or hypothecated unless (i) they shall have been
      registered under the Securities Act of 1933 and any applicable state
      securities act, or (ii) the corporation shall have been furnished with an
      opinion of counsel, satisfactory to counsel for the corporation, that
      registration is not required under any such acts."

            


    

    


    
      	
              8.

            	
              Certain Waivers by the
      Company.  Except as expressly provided otherwise in
      this Note, the Company and every endorser or guarantor, if any, of this
      Note waive presentment, demand, notice, protest and all other demands and
      notices in connection with the delivery, acceptance, performance, default
      or enforcement of this Note, and assent to any extension or postponement
      of the time of payment or any other indulgence, to any substitution,
      exchange or release of collateral available to Holder, if any, and to the
      addition or release of any other party or person primarily or secondarily
      liable.

            


    

    


    
      
        
        

      

      
        -3-

        
          

        

      

      
        
        

      

    

    
      	
              9.

            	
              Assignment by
      Holder.  If and whenever this Note shall be
      assigned and transferred, or negotiated, including transfers to substitute
      or successor trustees, the holder hereof shall be deemed the “Holder”
      for all purposes under this Note.

            
	 
      	 
      
	
              10.

            	
              Amendment.  This
      Note may not be changed orally, but only by an agreement in writing,
      signed by the party against whom enforcement of any waiver, change,
      modification or discharge is
sought.

            


    

     

    
      	
              11.

            	
              Costs
      and Fees.  Anything else in this Note to the contrary
      notwithstanding, in any action arising out of this Agreement, the
      prevailing party shall be entitled to collect from the non-prevailing
      party all of its attorneys’ fees.  For the purposes of this
      Note, the party who receives or is awarded a substantial portion of the
      damages or claims sought in any proceeding shall be deemed the “prevailing”
      party and attorneys’ fees shall mean the reasonable fees charged by an
      attorney or a law firm for legal services and the services of any legal
      assistants, and costs of litigation, including, but not limited to, fees
      and costs at trial and appellate levels.

            
	 
      	 
      
	
              12.

            	
              Governing
      Law.  It is the intention of the parties hereto that the
      terms and provisions of this Note are to be construed in accordance with
      and governed by the laws of the State of Arkansas, except as such laws may
      be preempted by any federal law controlling the rate of interest which may
      be charged on account of this Note.

            


    

      

    
      	
              13.

            	
              No Third Party
      Benefit.  The provisions and covenants set forth
      in this Agreement are made solely for the benefit of the parties to this
      Agreement and are not for the benefit of any other person, and no other
      person shall have any right to enforce these provisions and covenants
      against any party to this Agreement.

            
	 
      	 
      
	
              14.

            	
              Jurisdiction, Venue and Jury
      Trial Waiver.  The parties hereby consent and
      agree that, in any actions predicated upon this Note, venue is properly
      laid in Arkansas and that the Circuit Court in and for Little Rock,
      Arkansas, shall have full subject matter and personal jurisdiction over
      the parties to determine all issues arising out of or in connection with
      the execution and enforcement of this Note.

            
	 
      	 
      
	
              15.

            	
              Interpretation.  The
      term “Company”
      as used herein in every instance shall include the Company’s successors,
      legal representatives and assigns, including all subsequent grantees,
      either voluntarily by act of the Company or involuntarily by operation of
      law and shall denote the singular and/or plural and the masculine and/or
      feminine and natural and/or artificial persons, whenever and wherever the
      contexts so requires or properly applies.  The term “Holder”
      as used herein in every instance shall include the Holder’s successors,
      legal representatives and assigns, as well as all subsequent assignees,
      endorsees and holders of this Note, either voluntarily by act of the
      parties or involuntarily by operation of law.  Captions and
      paragraph headings in this Note are for convenience only and shall not
      affect its interpretation.

            
	 
      	 
      
	
              16.

            	
              WAIVER
      OF JURY TRIAL.  THE COMPANY AND HOLDER HEREBY KNOWINGLY,
      VOLUNTARILY AND INTENTIONALLY WAIVE THE RIGHT EITHER MAY HAVE TO TRIAL BY
      JURY IN RESPECT TO ANY LITIGATION BASED HEREON, OR ARISING OUT OF, UNDER
      OR IN CONNECTION WITH THIS NOTE AND ANY AGREEMENT CONTEMPLATED TO BE
      EXECUTED IN CONJUNCTION HEREWITH, OR ANY COURSE OF CONDUCT, COURSE OF
      DEALING, STATEMENTS, (WHETHER VERBAL OR WRITTEN) OR ACTIONS OF EITHER
      PARTY.  THE COMPANY ACKNOWLEDGES THAT THIS WAIVER OF JURY TRIAL
      IS A MATERIAL INDUCEMENT TO THE HOLDER IN EXTENDING CREDIT TO THE COMPANY,
      THAT THE HOLDER WOULD NOT HAVE EXTENDED SUCH CREDIT WITHOUT THIS JURY
      TRIAL WAIVER, AND THAT THE COMPANY HAS BEEN REPRESENTED BY AN ATTORNEY OR
      HAS HAD AN OPPORTUNITY TO CONSULT WITH AN ATTORNEY IN CONNECTION WITH THIS
      JURY TRIAL WAIVER AND UNDERSTANDS THE LEGAL EFFECT OF THIS
      WAIVER.

            


    

    


    
      
        
        

      

      
        -4-

        
          

        

      

      
        
        

      

    

    
      	
              17.

            	
              Entire
      Agreement.  This Agreement constitutes the sole
      and only agreement of the parties hereto and supersedes any prior
      understanding or written or oral agreements between the parties respecting
      the subject matter hereof.

            


    

    


    
      	
              18.

            	
              Effect
      of Facsimile and Photocopied Signatures. This Agreement may be
      executed in several counterparts, each of which is an
      original.  It shall not be necessary in making proof of this
      Agreement or any counterpart hereof to produce or account for any of the
      other counterparts.  A copy of this Agreement signed by one
      Party and faxed or scanned and emailed to another Party (as a PDF or
      similar image file) shall be deemed to have been executed and delivered by
      the signing Party as though an original.  A photocopy or PDF of
      this Agreement shall be effective as an original for all
      purposes.

            


    

    


    


    


    


    


    


    


    


    


    


    


    


    


    


    


    


    


    


    


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

     

    
      
        
        

      

      
        -5-

        
          

        

      

      
        
        

      

    

    IN WITNESS WHEREOF, the
undersigned have caused this Amended and Restated Promissory Note to be executed
and delivered by a duly authorized officer as of the date first above written,
to be effective as of the effective date set forth above.

     

    
      	 
      	
              SUMOTEXT
      INCORPORATED

              a
      Nevada Corporation

            
	 
      	 
      	 
      
	 
      	 
      	 
      
	 
      	
              By:
      /s/ Matthew
      Lozeau

            	 
      
	 
      	
              Matthew
      Lozeau, Secretary

            	 
      


    

    


    Holder:

    


    /s/ Tim Miller

    Tim
Miller

    


    


    
      
        
        

      

      
        -6-