ex10-11.htm


    Exhibit
10.11

     

    AMENDED
AND RESTATED

    PROMISSORY
NOTE

     

    
      	
              $150,000

            	
              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 Steve Bova, and/or assigns
(the “Holder”),
at the offices of Holder at 10 Riverglen, Little Rock, Arkansas, 72202 or
such other place as may be designated by Holder to the Company in writing, the
aggregate principal amount of One Hundred and Fifty Thousand
Dollars ($150,000), 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 One Hundred and Fifty Thousand Dollars  ($150,000), from
      the Holder to the Company (hereinafter referred to as the “Loan”
      or the “Principal”). 

            
	 
      	 
      	 
      
	
              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.

            


    

      

    
      	 
      	
              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.

            


    

     

    
      
        
        

      

      
        -1-

        
          

        

      

      
        
        

      

    

    
      	
              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 300,000 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 (“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.

            


    

    


    
      	
              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.

            


       

      
        
          
          

        

        
          -2-

          
            

          

        

        
          
          

        

      

      	 
      	 
      	 
      
	 
      	
              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.

            


    

    


    
      	
              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.

            


       

      
        
          
          

        

        
          -3-

          
            

          

        

        
          
          

        

      

      	 
      	 
      
	
              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.

            


    

    


    
      	
              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.]

     

    
      
        
        

      

      
        -4-

        
          

        

      

      
        
        

      

    

    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/ Tim Miller

            
	 
      	
              Tim
      Miller, President

            


    

    


    Holder:

    


    /s/ Steve Bova

    Steve
Bova

     

    


    
      
        
        

      

      
        -5-