EXHIBIT 10.2





THIS SECURED DEBENTURE, AND THE SECURITIES INTO WHICH IT IS CONVERTIBLE (COLLECTIVELY, THE “SECURITIES”), HAVE NOT BEEN REGISTERED WITH THE UNITED STATES SECURITIES AND EXCHANGE COMMISSION OR THE SECURITIES COMMISSION OF ANY SATE. THE SECURITIES ARE BEING OFFERED PURSUANT TO A SAFE HARBOR FROM REGISTRATION UNDER REGULATION D PROMULGATED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “ACT”). THE SECURITIES ARE “RESTRICTED” AND MAY NOT BE OFFERED OR SOLD UNLESS THE SECURITIES ARE REGISTERED UNDER THE ACT, PURSUANT TO REGULATION D OR PURSUANT TO AVAILABLE EXEMPTIONS FORM THE REGISTRATION REQUIREMENTS OF THE ACT AND THE COMPANY WILL BE PROVIDED WITH OPINION OF COUNSEL OR OTHER SUCH INFORMATION AS IT MAY REASONABLY REQUIRE TO CONFIRM THAT SUCH
EXEMPTIONS ARE AVAILABLE. FURTHER HEDGING TRANSACTIONS INVOLVING THE SECURITIES MAY NOT BE MADE EXCEPT IN COMPLIANCE WITH THE ACT.


 


SECURED DEBENTURE


 


ROANOKE TECHNOLOGY CORPORATION


 


5 % Secured Convertible Debenture


September 30, 2007


No. 001


US$825,000.00


 


This Secured Debenture (the “Debenture”) is issued on September 30, 2004 (the “Closing Date”) by Roanoke Technology Corporation, a Florida corporation (the “Company”) to Cornell Capital Partners, LP (together with its permitted successors and assigns, the “Holder”) pursuant to exemptions from registration under the Securities Act of 1933, as amended.


ARTICLE I.


Section 1.01.        Principal and Interest. For value received, the Company hereby promises to pay to the order of the Holder on September 30, 2007 in lawful money of the United States of America and in immediately available funds the principal sum of Eight Hundred Twenty-Five Thousand U.S. Dollars (US$825,000.00), together with interest on the unpaid principal of this Debenture at the rate of five percent (501,o) per year (computed on the basis of a 365-day year and the actual days elapsed) from the date of this Debenture until paid. At the Company’s option, the entire principal amount and all accrued interest shall be either (a) paid to the Molder on the third (3 d) year anniversary from the date hereof or (b) converted in accordance with Section 1.02 herein provided,
however, that in no event shall the Holder be entitled to convert this Debenture for a number of shares of Common Stock in excess of that number of shares of Common Stock which, upon giving effect to such conversion, would cause the aggregate number of shares of Common Stock beneficially owned by the Holder and its affiliates to exceed 4.99% of the outstanding shares of the Common Stock following such conversion.


Section 1.02.         Optional Conversion. The Holder is entitled, at its option, to convert, and sell on the same day, at any time and from time to time, until payment in full of this Debenture, all or any part of the principal amount of the Debenture, plus accrued interest, into shares (the “Conversion Shares”) of the Company’s common stock, par value $0.001 per share (“Common Stock”), at the price per share (the “Conversion Price’) equal to the lesser of (a) an amount equal to one hundred twenty percent (120%) of the closing bid price of the Common Stock as listed on a Principal Market (as defined herein), as quoted by Bloomberg; L.P. (the “Closing Bid Price”) as of the date hereof, or (b) an amount equal to eighty percent
(80%) of the lowest volume weighted average. price of the Company’s Common Stock, as quoted by Bloomberg, LP (the “VWAP”), for the five (5) wading days immediately preceding the Conversion Date (as defined herein). Subparagraphs (a) and (b) above are individually referred to as a “Conversion Price”. As used herein, “Principal Market” shall mean The National Association of Securities Dealers Inc.’s Over-The-Counter 13ulletin Board, Nasdaq SmallCap Market, or American Stock Exchange, If the Common 


 


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Stock is not traded on a Principal Market, the Closing Bid Price and/or the VWAP shall mean, the reported Closing Bid Price or the VWAP for the Common Stock, as furnished by the National Association of Securities Dealer’s, Inc., for the applicable periods. No fraction of shares or scrip representing fractions of shares will be issued on conversion, but the number of shares issuable shall be rounded to the nearest whole share. To convert this Debenture, the Folder hereof shall deliver written notice thereof, substantially in the form of Exhibit “A” to this Debenture, with appropriate insertions (the “Conversion Notice”), to the Company at its address as set forth herein. The date upon which the conversion shall be effective (the “Conversion Date”) shall be deemed to be the date set forth in the Conversion Notice.


Section 1.03.        Reservation of Common Stock. The Company shall reserve and keep available out of its authorized but unissued shares of Common Stock, solely for the purpose of effecting the conversion of this Debenture, such number of shares of Common Stock as shall from time to time be sufficient to effect such conversion, based upon the Conversion Price. If at any time the Company does not have a sufficient number of Conversion Shares authorized and available, then the Company shall call and hold a special meeting of its stockholders within sixty (60) days of that time for the sole purpose of increasing, the number of authorized shares of Common Stock.


Section 1.04.        Right of Redemption. The Company at its option shall have the right to redeem, with three (3) business days advance written notice (the “Redemption Notice”), a portion or all outstanding convertible debenture. The redemption price shall be one hundred twenty percent (120%) of the amount redeemed plus accrued interest.


In the event the Company exercises a redemption of either all or a portion the Convertible Debenture, the Holder shall receive a warrant to purchase fifty thousand (50,000) shares of the Company’s Common Stock for every One Hundred Thousand U.S. Dollars (US$100,000) redeemed, pro rata (the “Warrant”). The Warrant shall be exercisable on a “cash basis” and have an exercise price of one hundred twenty percent (120%a) of the Closing Bid Price of the Company’s Common Stock on the Closing Date. The Warrant shall have “piggy-back” and demand registration rights and shall survive for two (2) years from the Closing Date.


Section 1.05.         Registration Rights. The Company is obligated to register the resale of the Conversion Shares under the Securities Act of 1933, as amended, pursuant to the terms of a Registration Rights Agreement, between the Company and the Holder of even date herewith (the “Investor Registration Rights Agreement”).


Section 1.06.         Interest Payments. The interest so payable will be paid at the time of maturity or conversion to the person in whose name this Debenture is registered. At the time such interest is payable, the Company may elect to pay the interest in cash (via wire transfer or certified funds) or in the form of Common Stock. If paid in the form of Common Stock, the amount of stock to be issued will be calculated as follows: die value of the stock shall be the Closing Bid Price on: (i) the date the interest payment is due; or (ii) if the interest payment is not made when due, the date the interest payment is made. A number of shares of Common Stock with a value equal to the amount of interest due shall be issued. No fractional shares will be issued; therefore, in
the event that the value of the. Common ;hock per share does not equal the total interest due, the Company will pay the balance in cash.


Section 1.07.        Paying Agent and Registrar. Initially, the Company will act as paying agent and registrar. The Company may change any paying agent, registrar, or Company-registrar by giving the Holder not less than ten (10) business days’ written notice of its election to do so, specifying the name, address, telephone number and facsimile number of the paying agent or registrar. The Company may act in any such capacity.


Section 1.08.        Secured Nature of Debenture. This Debenture is secured by all of the assets and property of the Company as set forth on Exhibit A to the Security Agreement dated the date hereof between the Company and the Holder (the “Security Agreement”). As set forth in the Security Agreement, folder’s security interest shall terminate upon the occurrence of an Expiration Event as defined in the Security Agreement.


 


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ARTICLE II.


Section 2.01.         Amendments and Waiver of Default. The Debenture may not be amended. Notwithstanding the above, without the consent of the Holder, the Debenture may be amended to cure any ambiguity, defect or inconsistency, or to provide for assumption of Me Company obligations to the Holder.


ARTICLE III.


Section 3.01.         Events of Default. An Event of Default is defined as follows: (a) failure by the Company to pay amounts due hereunder within fifteen (15) days of the date of maturity of this Debenture; (b) failure by the Company to comply with the terms of the Irrevocable Transfer Agent Instructions attached to the Securities Purchase Agreement; (c) failure by the Company’s transfer agent to issue freely tradeable Common Stock to the Holder within five (5) days of the Company’s receipt of the attached Notice of Conversion from molder, (d) failure by the Company for ten (10) days after notice to it to comply with any of its other agreements in the Debenture; (e) events of bankruptcy or insolvency; (f) a breach by the Company of its obligations under
the Securities Purchase Agreement or t>>e Investor Registration Rights Agreement which is not cared by the Company within ten (10) days after receipt of written notice thereof. Upon the occurrence of an Event of Default, the Holder may, in its sole discretion, accelerate full repayment of all debentures outstanding and accrued interest thereon or may, notwithstanding any limitations contained in this Debenture and/or the Securities Purchase Agreement dated the date hereof between the Company and Cornell Capital Partners, L.P. (the “Securities Purchase Agreement”), convert all debentures outstanding and accrued interest thereon into shares of Common Stock pursuant to Section 1.02 herein.


Section 3.02.        Failure to Issue Unrestricted Common Stock. As indicated in Article III Section 3.01, a breach by the Company of its obligations under the Investor Registration Rights Agreement shall be. deemed an Event of Default, which if not cured within ten (10) days, shall entitle the Holder to accelerate full repayment of all debentures outstanding and accrued interest thereon or, notwithstanding any limitations contained in this Debenture and/or the Securities Purchase Agreement, to convert all debentures outstanding and accrued interest thereon into shares of Common Stock pursuant to Section 1.02 herein. The Company acknowledges that failure to honor a Notice of Conversion shall cause irreparable harm to the I-folder.


ARTICLE IV.


Section 4.01.         Rights and Terms of Conversion. This Debenture, in whole or in part, may be converted at any time following the Closing Date, into shares of Common Stock at a price equal to the Conversion Price as described in Section 1.02 above.


Section 4.02.         Re-issuance of Debenture. When the: Holder elects to convert a part of the Debenture, then the Company shall reissue a new Debenture in the same form as this Debenture to reflect the new principal amount.


Section 4.03.         Termination of Conversion Rights. The Holder’s right to convert the Debenture into the Common Stock in accordance with paragraph 4.01 shall terminate on the date that is the third (3d) year anniversary from the date hereof and this Debenture shall be automatically converted on that date in accordance with the formula set forth in Section 4.01 hereof, and the appropriate shares of Common Stock and amount of interest shall be issued to the Holder.


ARTICLE V.


Section 5.01.        Anti-dilution. In the event that the Company shall at any time subdivide the outstanding shares of Common Stock, or shall issue a stock dividend on the outstanding Common Stock, the Conversion Price in effect immediately prior to such subdivision or the issuance of such dividend shall be proportionately decreases., and in the event that the Company shall at any time combine the outstanding shares of Common Stock, the Conversion Price in effect immediately prior to such combination shall be proportionately increased, effective at the close of business on the date of such subdivision, dividend or combination as the case may be.


 


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Section 5.02.         Consent of Holder to Sell Capital ;Stock or Grant Security Interests. Except for the Standby Equity Distribution Agreement dated the date hereof between the Company and Cornell Capital Partners, LP, so long as any of the principal of or interest on this Debenture remains unpaid and unconverted, the Company shall not, without the prior consent of the Holder, issue or sell (i) any Common Stock or preferred Stock without consideration or for a consideration per share less than its fair market value determined immediately prior to its issuance, (ii) issue or sell any preferred Stock, warrant, option, right, contract, call, or other security or instrument granting the holder thereof the right to acquire Common Stock without consideration or for a
consideration per share less than such Common Stock’s fair market value determined immediately prior to its issuance, (iii) enter into any security instrument granting the holder a security interest in any of the assets of the Company, or (iv) file any registration statement on Form S-8


ARTICLE VI.


Section 6.01.          Notice. Notices regarding this Debenture shall be sent to the parties at the following addresses, unless a party notifies the other parties, in writing, of a change of address:


	
If to the Company, to:

	
Roanoke Technology Corporation


	
 

	
2720 North Wesleyan Boulevard


	
 

	
Rocky Mount, NC 27804


	
 

	
Attention:              David L. Smith, Jr.


	
 

	
President and Chief Executive Officer


	
 

	
Telephone:            (252) 428-0200


	
 

	
Facsimile:               (252) 428-0212


	
 

	
 


	
With a copy to:

	
Kirkpatrick & Lockhart LLP


	
 

	
201 South Biscayne Boulevard – Suite 2000


	
 

	
Miami, FL 33131-2399


	
 

	
Attention:              Clayton E. Parker, Esq.


	
 

	
Telephone:            (305) 539-3300


	
 

	
Facsimile:               (305) 351-7095


	
 

	
 


	
If to the Holder:

	
Cornell Capital partners, LP


	
 

	
101 Hudson Street, Suite 3700


	
 

	
Jersey City, NJ 07303


	
 

	
Telephone:            (201) 985-8300


	
 

	
Facsimile:               (201) 985-8266


	
 

	
 


	
With a copy to:

	
Butler Gonzalez LLP


	
 

	
1416 Morris Avenue, Suite 207


	
 

	
Union, NJ 07083


	
 

	
Attention:              David Gonzalez, Esq.


	
 

	
Telephone:            (908) 810-8588


	
 

	
Facsimile:               (908) 810-0973


	
 

	
 






 


Section 6.02.         Governing Law. This Debenture shall be deemed to be made under and shall be construed in accordance with the laws of the State of Florida without giving effect to the principals of conflict of laws thereof. Each of the parties consents to the jurisdiction of the U.S. District Court sitting in the District of the State of New Jersey or the state courts of the State of New Jersey sitting in Hudson County, New Jersey in connection with any dispute arising under this Debenture and hereby waives, to the maximum extent permitted by law, any objection, including any objection based on forum non conveniens to the bringing of any such proceeding in such jurisdictions.


Section 6.03.         Severability. The invalidity of any of the provisions of this Debenture shall not invalidate or otherwise affect any of the other provisions of this Debenture, which shall remain in full force and effect.


 


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Section 6.04.         Entire Agreement and Amendments. This Debenture represents the entire agreement between the parties hereto with respect to the subject matter hereof and there are no representations, warranties or commitments, except as set forth herein. This Debenture may be amended only by an instrument in writing executed by the parties hereto.


Section 6.05.         Counterparts. This Debenture may be executed in multiple counterparts, each of which shall be an original, but all of which shall be deemed to constitute on instrument.


IN WITNESS WHEREOF, with the intent to be legally bound hereby, the Company as executed this Debenture as of the date first written above.


	
 

	
ROANOKE TECHNOLOGY


	
 

	
 


	
 

	
/s/ David L. Smith 


	
 

	
Name:    David L. Smith, Jr.


	
 

	
Title:      President and 


	
 

	
Chief Executive Officer


	
 

	
 






 


 


 


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EXHIBIT “A”


NOTICE OF CONVERSION


(To be executed by the Holder in order to Convert the Debenture)


TO:


The undersigned hereby irrevocably elects to convert US$_____ of the principal amount of the above Debenture into Shares of Common Stock of Roanoke Technology Corporation, according to the conditions stated therein, as of the Conversion Date written below.


	
Conversion Date:

	

 



	
Applicable Conversion Price:

	

 



	
Signature:

	

 



	
Name:

	

 



	
Address:

	

 



	
Amount to be converted:

	

US$



	
Amount of Debenture unconverted:

	

US$



	
Conversion Price per share:

	

 



	
Number of shares of Common Stock to be issued:

	

 



	
Please issue the shares of Common Stock in the following name and the following address:

	

 



	
Issue to:

	

 



	
Authorized Signature:

	

 



	
Name:

	

 



	
Title:

	

 



	
Phone Number:

	

 



	
Broker DTC Participant Code:

	

 



	
Account Number:

	

 



	
 

	

 







 


 


 


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JOINT DISBURSEMENT INSTRUCTIONS


FOR CLOSING:           December 3, 2004


The undersigned do hereby:


1.              Acknowledge the acceptance of subscriptions from purchasers representing an aggregate of three hundred seventy-five thousand dollars ($375,000) from the sale of Convertible Debentures, par value $0.0001 per share of Roanoke Technology Corporation, a Florida corporation (the “Company”).


2.              Represent that this is the second (2”d) of three (~~) closings contemplated under the terms of the Securities Purchase Agreement and associated transaction documents dated September 30, 2004, and that the third (3d) closing shall take place upon the SB-2 Registration Statement filed with the United States Securities and Exchange Commission being declared effective.


3.              Represent that all conditions precedent to closing of the Company’s offering of Convertible Debentures has been satisfied;’ and direct that David Gonzalez PC disburse the gross proceeds of the offering at the joint direction of the undersigned as follows:


To be disbursed via wire transfer in immediately available U.S. funds, payable to the following parties:


	
 

	
Cornell Capital Partners, LP (100/9 Cash fee)

	
$ 37,500.00

	
 


	
 

	
Constellation Capital Corp. (As per Company)

	
$ 40,000.00

	
 


	
 

	
Chase Manhattan Bank (Mortgage Payoff as per Company)

	
$ 227,309.66

	
 


	
 

	
Roanoke Technology Corporation (Net Proceeds) 

	

$ 70.190.34


	
 


	
 

	
TOTAL ...............................................................................

	
$ 375,000.00

	
 


	
 

	
 

	
 

	
 






 


	
ROANOKE TECHNOLOGY CORPORATION

	
CORNELL CAPITAL PARTNERS LP


	
 

	
By:         Yorkville Advisors, LLC


	
 

	
Its:          General Partner


	
 

	
 


	
/s/ David L. Smith 

	
/s/ Mark A. Angelo 


	
Name:    David L. Smith, Jr.

	
Name:    Mark A. Angelo


	
Title:      President and 

	
Title:      Portfolio Manager 


	
Chief Executive Officer

	
 


	
 

	
 






 


 


 


 


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