Unassociated Document


    THIS
NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR ANY APPLICABLE STATE
SECURITIES LAW AND MAY NOT
BE SOLD OR OTHERWISE
TRANSFERRED EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT OR
PURSUANT TO AN AVAILABLE EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO,
SUCH REGISTRATION, AS EVIDENCED BY A LEGAL OPINION OF COUNSEL TO THE TRANSFEROR
TO SUCH EFFECT, THE FORM AND SUBSTANCE OF WHICH IS ACCEPTABLE TO THE
ISSUER.

     

    
      	
              MERRIMAN HOLDINGS,
      INC.

            
	 
      	 
      	 
      
	
              SECURED
      PROMISSORY NOTE

            
	 
      
	
              $                           

            	 
      	
              __________,
      2010

            
	 
      	 
      	 
      
	 
      	 
      	
              San
      Francisco, California

            


    

     

    FOR VALUE RECEIVED, and upon
and subject to the terms and conditions set forth herein, MERRIMAN HOLDINGS,
INC., a Delaware corporation (“Issuer”), hereby promises to
pay to the order of   Ronald l. Chez, an individual (together with his
permitted successors and assigns, “Holder”), the principal sum of
ONE MILLION FIFTY THOUSAND DOLLARS (U.S. $1,050,000) on the Maturity Date,
together with interest as provided herein. 

     

    1.            
Maturity
Date.  This Note shall be due and payable in two tranches s follows:
(i) with respect to NINE HUNDRED FIFTY THOUSAND DOLLARS ($950,000), on January
19, 2011, and (ii) with respect to ONE HUNDRED THOUSAND DOLLARS ($100,000), on
February 28, 2011.  For the avoidance of doubt, this Note will mature,
and any remaining amounts due hereunder will be due and payable in full, on
February 28, 2011 (the “Maturity Date”).

     

    2.            
Interest. 
From and after the date hereof, all outstanding principal of this Note will bear
interest on the outstanding principal balance of Twenty Nine and Two Tenths
Percent (29.2%) pre annum comprising.  Upon the occurrence and during
the continuance of any Event of Default (as hereinafter defined) under this
Note, all outstanding principal of this Note shall bear interest at the rate of
35% per annum. All accrued but unpaid interest on this Note shall be payable on
the Maturity Date or on such earlier date as this Note shall be
prepaid.

     

    3.           Additional
Consideration.  As
additional consideration to Holder, and a material inducement to Holder to loan
funds to the Issuer pursuant to this Note, Issuer agrees to pay the Holder (i) a
cash fee equal to Fifteen Thousand Dollars ($15,000) (the “Disbursement Fee”);
and (ii) Fifty Thousand 50,000 shares of the Issuer’s Series D Preferred Stock
(the Series D Shares”).  The Disbursement Fee shall be due and payable
on the Maturity Date.  The Series D Shares shall be due and payable on
the Maturity Date.

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

     

    4.           Series D
Shares.  Issuer hereby
represents and warrants that the Series D Shares will be duly authorized,
validly issued, fully paid and non-assessable upon issuance.  The
Series D Shares will not be registered under the Securities Act of 1933, as
amended, and will carry legends restricting resale.

    


    5.    
      Cash
Prepayment. At
any time prior to repayment of this Note, the Issuer may elect to repay all or a
portion of the outstanding principal and any accrued interest on this Note in
cash without notice of prepayment.

    


    6.           No Rights
as a Shareholder.  This Note, as such, shall not entitle
Holder to any rights as a stockholder of Issuer.

      

    7.           Security. 
As collateral security for the
full, prompt, complete and final payment and performance when due (whether at
stated maturity, by acceleration or otherwise) of all the obligations under this Note and in order to induce the Holder to cause the loan evidenced by this Note to be made, the Issuer hereby assigns, conveys, mortgages,
pledges, hypothecates and transfers to the Holder, and hereby grants to the Holder, a security interest in and right of
setoff against all of such Issuer’s right, title and interest in, to and
under the accounts receivable listed on Exhibit A hereto, whether now or hereafter existing or
acquired, together with all proceeds, rents, profits and returns of and from any
of the foregoing (including, without limitation any insurance proceeds from the
foregoing).”  Issuer hereby consents to the filing of a
UCC-1 Financing Statement with the California Secretary of State perfecting this
security interest.

    


    8.         Transfer. 
Purchaser may transfer this Note in compliance with applicable U.S. federal and
state and/or foreign securities laws.

     

    9.           Events of
Default.
 If there shall be any
Event of Default hereunder, at the option and upon the declaration of and upon
written notice to Issuer (which declaration and notice shall not be required in
the case of an Event of Default under Section 7(a), 7(c) or 7(d)), this Note
shall accelerate and all principal and unpaid accrued interest shall become due
and payable.  Subject to the provisions hereof, Holder shall have all
rights and may exercise any remedies available to it under law, successively or
concurrently.  Immediately after an Event of Default
(as hereinafter described), Holder shall be authorized to direct all of
the account debtors of the pledged accounts receivable hereunder to make all
payments on such accounts receivable directly to Holder or to a post office box
(the “Lock Box”) held at and under the exclusive control of Holder and Issuer
irrevocably hereby makes, constitutes and appoints Holder (and all persons
designated by Holder for that purpose) as such Issuer’s true and lawful attorney
and agent-in-fact (i) to endorse such Issuer’s name upon said items of payment
and/or proceeds of such collateral; (ii) to take control in any manner of any
item of payment or proceeds thereof; and (iii) to have access to any Lock Box
into which any of such Issuer’s mail is deposited, and open and process all mail
addressed to such Issuer and deposited therein.” The occurrence of
any one or more of the following shall constitute an Event of
Default:

    


    (a)           Issuer fails to pay (i) when due any
principal payment on the due date hereunder or (ii) any interest or other
payment required under the terms of this Note on the date due and any such
payment described in (i) or (ii) above shall not have been made within five (5)
business days of the date due;

    


    (b)           Issuer fails to perform any covenant
under this Note in a timely manner after Issuer's receipt of Holder's written
notice to Issuer of such failure;

    


    (c)           Issuer (i) applies for or consents to
the appointment of a receiver, trustee, liquidator or custodian of itself or of
all or a substantial part of its property; (ii) is unable, or admits in writing
its inability, to pay its debts generally as they mature; (iii) makes a general
assignment for the benefit of its or any of its creditors; (iv) is dissolved or
liquidated in full or in part; (v) becomes insolvent (as such term may be
defined or interpreted under any applicable statute); (vi) commences a voluntary
case or other proceeding seeking liquidation, reorganization or other relief
with respect to itself or its debts under any bankruptcy, insolvency or other
similar law now or hereafter in effect or consents to any such relief or to the
appointment of or taking possession of its property by any official in an
involuntary case or other proceeding commenced against it; or (vii) takes any
action for the purpose of effecting any of the foregoing;

     

    
      
        
        

      

      
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    (d)       Proceedings for the appointment of a
receiver, trustee, liquidator or custodian of Issuer or of all or a substantial
part of the property thereof, or an involuntary case or other proceedings
seeking liquidation, reorganization or other relief with respect to Issuer or
the debts thereof under any bankruptcy, insolvency or other similar law or
hereafter in effect are commenced and an order for relief entered or such
proceeding is not be dismissed or discharged within thirty (30) days of
commencement;

    


    (e)        Issuer is in default under any
indebtedness of Issuer in excess of One Hundred Thousand Dollars
($100,000) (“Material
Indebtedness”) or in the performance of or compliance with any term of any
evidence of any such indebtedness or of any mortgage, indenture or other
agreement relating thereto the effect of which is to cause such indebtedness
 to become due and payable before its stated maturity or before its
regularly scheduled dates of payment, and such default, event or condition
continues for more than the period of grace, if any, specified therein and not
waived pursuant thereto; provided, however, that for purposes of this Section
4.5, indebtedness shall not include trade payables, compensation to employees,
officers or directors or other obligations arising in the ordinary course of the
business of the Issuer.

     

    10.         
Notices. 
All notices, demands, requests, consents, approvals, and other communications
required or permitted hereunder shall be in writing and, unless otherwise
specified herein, shall be (i) personally served, (ii) deposited in the mail,
registered or certified, return receipt requested, postage prepaid, (iii)
delivered by reputable air courier service with charges prepaid, or (iv)
transmitted by hand delivery, telegram, or facsimile, addressed as set forth
below or to such other address as such party shall have specified most recently
by written notice. Any notice or other communication required or permitted to be
given hereunder shall be deemed effective (a) upon hand delivery or delivery by
facsimile, with accurate confirmation generated by the transmitting facsimile
machine, at the address or number designated below (if delivered on a business
day during normal business hours where such notice is to be received), or the
first business day following such delivery (if delivered other than on a
business day during normal business hours where such notice is to be received)
or (b) on the second business day following the date of mailing by express
courier service, fully prepaid, addressed to such address, or upon actual
receipt of such mailing, whichever shall first occur. The addresses for such
communications shall be: (i) if to the Issuer, to: Merriman Holdings, Inc., 600 California Street, 9th Floor,
San Francisco, California
94108, Attention: Chief
Financial Officer, telecopier: (415) 415-248-5690, (ii) if to the Holder to: the
address and telecopier number on file with Issuer, as may be updated at Holder’s
written request from time to time.

     

    
      
        
        

      

      
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    11.          Governing Law.  This
Note shall be governed by and construed in accordance with the laws of the State
of Illinois without regard to principles of conflicts of laws. Any action
brought by either party against the other concerning the transactions
contemplated by this Note shall be brought only in the state courts of State of
Illinois located in Cook County or in the federal courts located in the Northern
District of Illinois. The parties and the individuals executing this Note and
other agreements referred to herein or delivered in connection herewith on
behalf of the Company agree to submit to the jurisdiction of such courts and
waive trial by jury. The prevailing party shall be entitled to recover from the
other party its reasonable attorney’s fees and costs. In the event that any
provision of this Note or any other agreement delivered in connection herewith
is invalid or unenforceable under any applicable statute or rule of law, then
such provision shall be deemed inoperative to the extent that it may conflict
therewith and shall be deemed modified to conform with such statute or rule of
law. Any such provision which may prove invalid or unenforceable under any law
shall not affect the validity or enforceability of any other provision of any
agreement.

     

    


              IN WITNESS WHEREOF, Issuer has
caused this Note to be duly executed by an authorized signatory as of the date
first written above.

     

    
      	 
      	
              MERRIMAN HOLDINGS,
      INC.

            
	 
      	 
      
	 
      	 
      
	 
      	
              By:

            	 
      
	 
      	
              Name:

            	 
      
	 
      	
              Title:

            	 
      


    

     

     

    
      
        
        

      

      
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    Exhibit
A

    


    Accounts
Receivable

    


    
      	 
      	
              KEYW

            	
              GeoEye,
      Inc.

            	
              Entropic

            	
              Quantum
      Corp

            	
              Total

            
	
              AR-Value

            	
                        720,000

            	
                          63,281

            	
                    166,719

            	
                             100,000

            	
                     1,050,000

            


    

    


    
      
        
        

      

      
        5