Exhibit 10.3


 


PROMISSORY
NOTE


 




	
  $250,000

  	
   

  	
  July 9,
  2009    

  






San Francisco, California


 


FOR VALUE RECEIVED,
receipt of which is hereby acknowledged, Etelos, Inc., a Delaware
Corporation with its principal place of business at 26828 Maple Valley Highway,
#297, Maple Valley, WA 98038 (the “Borrower”) promises to pay to the
order of Enable Growth Partners LP located at One Ferry Building, Suite 255,
San Francisco, California or at such other place as Lender may designate in
writing (the “Lender”) in lawful money of the United States of America,
the principal sum of Two Hundred Fifty Thousand Dollars ($250,000) plus
interest thereon from the date the proceeds of the loan evidenced by this Note
are disbursed from the Lender to the Borrower until the Maturity Date (as
defined below), whether scheduled or accelerated, at a fixed interest rate
equal to Ten Percent (10%) per annum. In addition, contemporaneous with the
consummation of the loan evidenced by this Note, the Borrower will issue the
Lender a five-year warrant (the “Warrant”) exercisable for 500,000
shares of the Borrower’s common stock, at an exercise price of $0.75 per share,
subject to adjustment therein.


 


1.                                       Payment. Payment of principal and accrued but unpaid interest
shall be due and payable in full on January 9, 2010 (the “Maturity Date”),
unless due earlier in accordance with the terms of this Note.


 


2.                                       Events of Default.


 


(a)                                  “Event of Default”, wherever used
herein, means any one of the following events (whatever the reason for such
event and whether such event shall be voluntary or involuntary or effected by
operation of law or pursuant to any judgment, decree or order of any court, or
any order, rule or regulation of any administrative or governmental body):


 


(i)                                          Any default in the payment of the principal
amount of, or the interest on, this Note, when due and payable or any failure
to pay any fees or other charges on this Note when due and payable;


 


(ii)                                       The Borrower or any of its subsidiaries
or any other Person shall fail to provide the Lender with, or to perform any
obligation under this Note or any contract, instrument, addenda, or document
executed in connection with this Note, including without limitation, any rate
option agreement, guaranty, pledge agreement, security agreement, or deed of trust
(all such documents, including this Note, each a “Loan Document”);


 


(iii)                                    The Borrower or any of its subsidiaries
shall commence, or there shall be commenced against Borrower or any subsidiary
a case under any applicable bankruptcy or insolvency laws as now or hereafter
in effect or any


 

















 


successor thereto, or the
Borrower or any subsidiary commences any other proceeding under any
reorganization, arrangement, adjustment of debt, relief of debtors,
dissolution, insolvency or liquidation or similar law of any jurisdiction
whether now or hereafter in effect relating to Borrower or any subsidiary, or
there is commenced against Borrower or any subsidiary any such bankruptcy,
insolvency or other proceeding which remains undismissed for a period of 60
days; or Borrower or any subsidiary is adjudicated insolvent or bankrupt; or
any order of relief or other order approving any such case or proceeding is
entered; or Borrower or any subsidiary suffers any appointment of any custodian
or the like for it or any substantial part of its property which continues
undischarged or unstayed for a period of 60 days; or Borrower or any subsidiary
makes a general assignment for the benefit of creditors; or Borrower or any
subsidiary shall fail to pay, or shall state that it is unable to pay, or shall
be unable to pay, its debts generally as they become due; or Borrower or any
subsidiary shall call a meeting of its creditors with a view to arranging a
composition, adjustment or restructuring of its debts; or the Borrower shall die,
become incapacitated, dissolve or terminate the business of the Borrower; or
Borrower or any subsidiary shall by any act or failure to act expressly
indicate its consent to, approval of or acquiescence in any of the foregoing;
or any corporate or other action is taken by Borrower or any subsidiary for the
purpose of effecting any of the foregoing;


 


(iv)                              The Borrower or any of its subsidiaries
shall fail to perform under any other agreement involving the borrowing of
money, the purchase of property, the advance of credit or any other monetary
liability of any kind to any Person, whether such indebtedness now exists or
shall hereafter be created and such default shall result in such indebtedness
becoming or being declared due and payable prior to the date on which it would
otherwise become due and payable;


 


(v)                                 The Borrower shall (a) be a party to
any Change of Control Transaction (as defined below), (b) agree to sell or
dispose all or in excess of 33% of its assets in one or more transactions
(whether or not such sale would constitute a Change of Control Transaction), (c) redeem
or repurchase more than a de minimis number of shares of Common Stock or other
equity securities of Borrower, or (d) make any distribution or declare or
pay any dividends (in cash or other property, other than common stock) on, or
purchase, acquire, redeem, or retire any of Borrower’s capital stock, of any
class, whether now or hereafter outstanding. “Change of Control Transaction”
shall mean the occurrence after the date hereof of any of: (i) an
acquisition after the date hereof by an individual or legal entity or “group”
(as described in Rule 13d-5(b)(1) promulgated under the Securities
Exchange Act of 1934, as amended) of effective control (whether through legal
or beneficial ownership of capital stock of Borrower, by contract or otherwise)
of in excess of 33% of the voting securities of Borrower, (ii) a
replacement at one time or over time of more than one -half of the members of
Borrower’s board of directors which is not approved by a majority of those


 


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individuals who are
members of the board of directors on the date hereof (or by those individuals
who are serving as members of the board of directors on any date whose
nomination to the board of directors was approved by a majority of the members
of the board of directors who are members on the date hereof), (iii) the
merger of Borrower with or into another entity that is not wholly-owned by
Borrower, consolidation or sale of 33% or more of the assets of Borrower in one
or a series of related transactions, or (iv) the execution by Borrower of
an agreement to which Borrower is a party or by which it is bound, providing
for any of the events set forth above in (i), (ii) or (iii).


 


(vi)                                   Any judgment(s), writ or similar final
process shall be entered or filed against the Borrower or any of its
subsidiaries, or any involuntary lien(s) of any kind or character shall
attach to any assets or property of Borrower, any of which, in the judgment of
Lender, might have a material adverse effect on the financial condition or
business of Borrower;


 


(vii)                                Any governmental or regulatory authority
shall take any action, any defined benefit pension plan maintained by Borrower
shall have any unfunded liabilities, or any other event shall occur, any of
which, in the judgment of Lender, might have a material adverse effect on the
financial condition or business of Borrower;


 


(viii)                             The Lender reasonably determine, in good
faith, that its security interest in the Collateral (as defined in the Security
Agreement) or the prospect of payment or performance under this Agreement or
any Loan Document is materially impaired;


 


(ix)                                     Without Lender’s prior written consent,
any change shall occur in the executive management of Borrower or any of its
subsidiaries or any change shall occur in the corporate or legal structure of
Borrower or any of its subsidiaries;


 


(x)                                        The Borrower or any of its subsidiaries
shall fail to perform any of its covenants, agreements, duties or obligations
or otherwise commit any breach hereunder or in any Loan Document.


 


(b)                                 Remedies Upon Event of Default. If any Event of Default occurs (unless waived
in writing by the Lender), the full principal amount of this Note, together
with all accrued interest thereon, shall become, at the Lender’s election,
immediately due and payable in cash. Commencing 5 days after the occurrence of
any Event of Default that results in the acceleration of this Note, the
interest rate on this Note shall accrue at the rate of 18% per annum, or such
lower maximum amount of interest permitted to be charged under applicable law.
The Lender need not provide and Borrower hereby waives any presentment, demand,
protest or other notice of any kind, and the Lender may immediately and without
expiration of any grace period enforce any and all of its rights and remedies
hereunder and all other remedies available to it under


 


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applicable law. Such
declaration may be rescinded and annulled by Lender at any time prior to
payment hereunder. No such rescission or annulment shall affect any subsequent
Event of Default or impair any right consequent thereon. The Lender have the
right, at its sole option, to continue to accept interest and/or principal
payments due under the Loan Documents after any Event of Default, and such
acceptance shall not constitute a waiver of such Event of Default or an
extension of the Maturity Date unless Lender agree otherwise in writing. In the
event of an Event of Default, Borrower agrees to pay all costs incurred in
connection with the collection of this Note, or enforcement of the terms of
this Note, including Lender’s reasonable attorneys’ fees and related costs.


 


3.                                       Security Interest. As an inducement for the Lender to make
the loan evidenced by this Note, and to secure the complete and timely payment,
performance and discharge in full, as the case may be, of all of the
obligations of the Borrower under this Note, the Borrower, for itself, and each
of its subsidiaries, unconditionally and irrevocably pledges, grants and
hypothecates to the Lender a continuing and perfected security interest in and
to, a lien upon and a right of set-off against all of their respective right,
title and interest of whatsoever kind and nature in and to, all of the assets
of the Borrower. The Borrower acknowledges and agrees that the obligations of
the Borrower under this Note, are subject to security interest granted by the
Borrower pursuant to the Security Agreement dated January 31, 2008, by and
among the Borrower and the secured parties thereto (the “Security Agreement”)
and that such obligations are “Obligations” under the Security Agreement. The
Borrower and each of its subsidiaries shall take any and all actions requested
by the Lender in order to grant the Lender a first priority security interest
in the assets of the Borrower and its subsidiaries, including all UCC-1 filing
receipts.


 


4.                                       No Waiver of Lender’s Rights. All payments of principal and interest
shall be made without setoff, deduction or counterclaim. No delay or failure on
the part of the Lender in exercising any of its options, powers or rights, nor
any partial or single exercise of its options, powers or rights shall
constitute a waiver thereof or of any other option, power or right, and no
waiver on the part of the Lender of any of its options, powers or rights shall
constitute a waiver of any other option, power or right. Borrower hereby waives
presentment of payment, protest, and all notices or demands in connection with
the delivery, acceptance, performance, default or endorsement of this Note.
Acceptance by the Lender of less than the full amount due and payable hereunder
shall in no way limit the right of the Lender to require full payment of all
sums due and payable hereunder in accordance with the terms hereof.


 


5.                                       Modifications. No term or provision contained herein
may be modified, amended or waived except by written agreement or consent
signed by the party to be bound thereby.


 


6.                                       Consent. In accordance with the provisions of the Loan
Documents held by Lender, and solely with respect to this Note, Lender
waives its rights under those certain Loan Documents and grants its consent to
Borrower to enter into and perform the obligations in this Note.


 


7.                                       Choice of Law. All questions concerning the
construction, validity, enforcement and interpretation of this Note shall be
governed by and construed and enforced in accordance with


 


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the internal laws of the
State of New York, without regard to the principles of conflicts of law
thereof. Each of Borrower and Lender agree that all legal proceedings
concerning the interpretations, enforcement and defense of this Note shall be
commenced in the state and federal courts sitting in the City of New York,
Borough of Manhattan (the “New York Courts”). Each of Borrower and
Lender hereby irrevocably submit to the exclusive jurisdiction of the New York
Courts for the adjudication of any dispute hereunder (including with respect to
the enforcement of this Note), and hereby irrevocably waives, and agrees not to
assert in any suit, action or proceeding, any claim that it is not personally
subject to the jurisdiction of any such court, that such suit, action or
proceeding is improper. Each of Borrower and Lender hereby irrevocably waive
personal service of process and consents to process being served in any such
suit, action or proceeding by mailing a copy thereof via registered or
certified mail or overnight delivery (with evidence of delivery) to the other
at the address in effect for notices to it under this Note and agrees that such
service shall constitute good and sufficient service of process and notice
thereof. Nothing contained herein shall be deemed to limit in any way any right
to serve process in any manner permitted by law. EACH OF BORROWER AND LENDER
HEREBY IRREVOCABLY WAIVE, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW,
ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR
RELATING TO THIS NOTE OR THE TRANSACTIONS CONTEMPLATED HEREBY.


 


8.                                       Cumulative Rights and Remedies; Usury. The rights and remedies of Lender
expressed herein are cumulative and not exclusive of any rights and remedies
otherwise available under this Note or applicable law (including at equity).
The election of Lender to avail itself of any one or more remedies shall not be
a bar to any other available remedies, which Borrower agrees Lender may take
from time to time. If it shall be found that any interest due hereunder shall
violate applicable laws governing usury, the applicable rate of interest due
hereunder shall be reduced to the maximum permitted rate of interest under such
law.


 


9.                                       Severability. If any provision of this Note is
declared by a court of competent jurisdiction to be in any way invalid, illegal
or unenforceable, the balance of this Note shall remain in effect, and if any
provision is inapplicable to any person or circumstance, it shall nevertheless
remain applicable to all other persons and circumstances. If it shall be found
that any interest or other amount deemed interest due hereunder shall violate
applicable laws governing usury, the applicable rate of interest due hereunder
shall automatically be lowered to equal the maximum permitted rate of interest.


 


10.                                 Successors and Assigns. This Note shall be binding upon
Borrower and its successors and shall inure to the benefit of the Lender and
its successors and assigns. The term “Lender” as used herein, shall also
include any endorsee, assignee or other holder of this Note.


 


11.                                 Lost or Stolen Promissory Note. If this Note is lost, stolen, mutilated
or otherwise destroyed, Borrower shall execute and deliver to the Lender a new
promissory note containing the same terms, and in the same form, as this Note.
In such event, Borrower may require the Lender to deliver to Borrower an
affidavit of lost instrument and customary indemnity in respect thereof as a
condition to the delivery of any such new promissory note.


 


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12.                                 Due Authorization. This Note has been duly authorized,
executed and delivered by Borrower and is the legal obligation of Borrower,
enforceable against Borrower in accordance with its terms except as limited by
general equitable principles and applicable bankruptcy, insolvency,
reorganization, moratorium and other laws of general application affecting
enforcement of creditors’ rights generally. No consent of any other party and
no consent, license, approval or authorization of, or registration or
declaration with, any governmental authority, bureau or agency is required in
connection with the execution, delivery or performance by the Borrower, or the
validity or enforceability of this Note other than such as have been met or
obtained. The execution, delivery and performance of this Note and all other
agreements and instruments executed and delivered or to be executed and
delivered pursuant hereto or thereto or the securities issuable upon conversion
of this Note will not violate any provision of any existing law or regulation
or any order or decree of any court, regulatory body or administrative agency
or the certificate of incorporation or by-laws of the Borrower or any mortgage,
indenture, contract or other agreement to which the Borrower is a party or by
which the Borrower or any property or assets of the Borrower may be bound.


 


13.                                 Notice. Any and all notices or other communications or
deliveries to be provided by the Lender hereunder shall be in writing and
delivered personally, by facsimile, sent by a nationally recognized overnight
courier service or sent by certified or registered mail, postage prepaid,
addressed to the Borrower, or such other address or facsimile number as the
Borrower may specify for such purposes by notice to the Lender delivered in
accordance with this paragraph. Any and all notices or other communications or
deliveries to be provided by the Borrower hereunder shall be in writing and
delivered personally, by facsimile, sent by a nationally recognized overnight
courier service or sent by certified or registered mail, postage prepaid,
addressed to the Lender at the address of the Lender appearing on the books of
the Borrower, or if no such address appears, at the principal place of business
of the Lender. Any notice or other communication or deliveries hereunder shall
be deemed given and effective on the earliest of (i) the date of
transmission if delivered by hand or by telecopy that has been confirmed as
received by 5:00 P.M. on a business day, (ii) one business day after
being sent by nationally recognized overnight courier or received by telecopy
after 5:00 P.M. on any day, or (iii) five business days after being
sent by certified or registered mail, postage and charges prepaid, return
receipt requested .


 


14.                                 Time of the Essence. Time is of the essence of this Note.


 


15.                                 Current Report. Within 2 business days from the date of
this Note, the Borrower shall file a Current Report on Form 8-K with the
Securities and Exchange Commission, attaching this Note and the Warrant, and
disclosing the material terms of this Note and the Warrant.


 


Prior to signing this
Note, Borrower has consulted with its counsel and has read and understands all
the provisions of this Note. Borrower agrees to the terms of the Note and
acknowledges receipt of a completed copy of the Note.


 


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The undersigned signs
this Note as a maker and not as a surety or guarantor or in any other capacity.


 


 


	
   

  	
  ETELOS, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Daniel
  J.A. Kolke

  
	
   

  	
  Name:

  	
  Daniel
  J.A. Kolke

  
	
   

  	
  Title:

  	
  Chairman
  & Chief Executive Officer