Convertible Promissory Note



 Exhibit 10.1 
 CONVERTIBLE PROMISSORY NOTE 
 THIS PROMISSORY NOTE HAS NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED. NO SALE OR DISPOSITION MAY BE EFFECTED EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR AN EXEMPTION THEREFROM. 

CONVERTIBLE PROMISSORY NOTE 
  

					
	US$125,000	  	 	December 28, 2011	  

 For value received Banks.com, Inc., a Florida corporation
(“Payor”), promises to pay to Kimberly & Daniel O’Donnell (the “Lender”), or its successors or assigns, the principal sum of US $125,000 on the terms set forth below.
Interest on the outstanding principal amount shall accrue at the rate of 10% per annum (“Interest Rate”) or at the Default Rate, as herein defined. Interest shall commence on the date hereof and shall continue on the
outstanding principal until paid in full. Interest shall be computed on the basis of a year of 365 days for the actual number of days elapsed. 

1. Definitions. The following terms shall have the meanings herein specified: 

“Capital Stock” means any of the current or future authorized class or series of capital stock of
Payor, including but not limited to Common Stock and Preferred Stock. 
 “Common Stock”
means authorized Common Stock, $.001 par value, of Payor. 
 “Conversion Notice” shall
have the meaning set forth in Section 2(a). 
 “Conversion Price” shall mean the per
share price(s) at which some or all of the outstanding principal amount plus all accrued interest thereon is converted or convertible pursuant to Section 2(a), and in all cases as adjusted pursuant to Section 2(d). 

“Conversion Shares” means the shares of Common Stock, or such other shares of Capital Stock,
issuable upon conversion of this Note. 
 “Event of Default” means an event specified in
Section 4 hereof. 
 “Holder” means Lender and each endorsee, pledgee, assignee,
owner and holder of this Note, as such; and any consent, waiver or agreement in writing by the then Holder with respect to any matter or thing in connection with this Note, whether altering any provision hereof or otherwise, shall bind all
subsequent Holders. Notwithstanding the foregoing, Payor may treat the registered holder of this Note as Holder for all purposes. 
 “Preferred Stock” means authorized Preferred Stock, $.001 par value, of Payor. 
 “Share Equivalents” means options, warrants, convertible preferred stock, convertible debt, or other securities convertible into or exercisable for shares of Capital Stock.

 Words of one gender include the other gender; the singular includes the plural; and the plural includes the singular, unless the context
otherwise requires. 
 2. Conversion of the Note. 
 a. Election to Convert. At any time from and after the Maturity Date of this Note, Holder may, at its option exercisable by written notice (the “Conversion Notice”) to Payor
at any time prior to payment in full hereof, except as set forth in Section 2(e), elect to convert all or any part of the entire outstanding principal amount of this Note plus the accrued interest on the then outstanding balance into shares of
Common Stock at a conversion price equal to $0.04 per share, subject to adjustment as set forth below. 
 b. Delivery of
Conversion Shares. The Conversion Shares shall be delivered as follows: 
 1. As promptly as practicable
after conversion, Payor shall deliver to Holder, or to such person or persons as are designated by Holder in the Conversion Notice, (1) a certificate or certificates representing the number of shares of Capital Stock into which this Note or
portion thereof is to be converted, in such name or names as are specified in the Conversion Notice and (2) in the case of conversion of the entire remaining principal balance plus accrued unpaid interest hereof, any cash payable in respect of
a fractional share. Such conversion shall be deemed to have been effected at the close of business on the date when this Note shall have been surrendered to Payor for conversion, so that the person entitled to receive such Conversion Shares shall be
treated for all purposes as having become the record holder of such Conversion Shares at such time. 

  
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 2. In the event that less than the entire outstanding principal and accrued
unpaid interest of this Note is converted hereunder pursuant to subsection (a) above, this Note shall not be surrendered for cancellation but shall have the fact and amount of conversion recorded on the face of this Note by writing acknowledged
by Holder and Payor. If less than the entire principal balance of this Note is converted, the amount of principal converted shall be reduced to the nearest amount that results in no fractional shares. 

c. Reservation of Shares. Payor agrees that, during the period within which this Note may be converted, Payor will at all times
have authorized and in reserve, and will keep available solely for delivery upon the conversion of this Note, a sufficient number of shares of Capital Stock and other securities and properties as from time to time shall be receivable upon the
conversion of this Note, free and clear of all restrictions on issuance, sale or transfer other than those imposed by law and free and clear of all pre-emptive rights. Payor agrees that the Conversion Shares shall, at the time of such delivery, be
validly issued and outstanding, fully paid and non-assessable, and Payor will take all such action as may be necessary to assure that the stated value or par value per share of the Conversion Shares is at all times equal to or less than the
Conversion Price. 
 d. Protection Against Dilution. 

1. In the event of any consolidation with or merger of Payor with or into another corporation (other than a merger or
consolidation in which Payor is the surviving or continuing corporation) or any sale, lease or conveyance to another corporation of the property of Payor as an entirety or substantially as an entirety, in either case while any principal or accrued
interest remains outstanding under this Note, then Payor shall use its reasonable best efforts to cause such successor, leasing or purchasing corporation, as the case may be, to (i) execute with Holder an agreement providing that Holder shall
have the right thereafter to receive upon conversion of this Note solely the kind and amount of shares of stock and other securities, property, cash or any combination thereof receivable upon such consolidation, merger, sale, lease or conveyance by
a holder of the number of shares of Capital Stock for which this Note might have been converted immediately prior to such consolidation, merger, sale, lease or conveyance, (ii) make effective provision in its articles of association or
otherwise, if necessary, in order to effect such agreement, and (iii) set aside or reserve, for the benefit of Holder, the stock, securities, property and cash to which Holder would be entitled upon conversion of this Note. In the event Payor
is not able to cause such events in (i) – (iii) above to occur, then the provisions of Section 3(b) shall apply. 
 2. In the event of any reclassification or change of the Capital Stock into which this Note may be converted (other than a change in par value or from no par value to a specified par value, or as a result
of a subdivision or combination, but including any change in the shares into two or more classes or series of shares), or in the event of any consolidation or merger of another corporation into Payor in which Payor is the continuing corporation and
in which there is a reclassification or change (including a change to the right to receive cash or other property) of the Capital Stock into which this Note may be converted (other than a change in par value, or from no par value to a specified par
value, or as a result of a subdivision or combination, but including any change in the shares into two or more classes or series of shares), in either case while any principal or accrued interest remains outstanding under this Note, then Holder
shall have the right thereafter to receive upon conversion of this Note solely the kind and amount of shares of stock and other securities, property, cash or any combination thereof receivable upon such reclassification, change, consolidation or
merger by a holder of the number of shares of Capital Stock for which this Note might have been converted immediately prior to such reclassification, change, consolidation or merger. 

e. Stockholder Approval. Holder may not convert all or any part of the outstanding principal amount of this Note and accrued
interest on the then outstanding balance pursuant to Section 2(a) in an amount that in the aggregate would exceed 100% of Payor’s then outstanding shares of Capital Stock, unless Payor determines in its sole discretion that:
(i) such conversion does not require Payor to obtain stockholder approval, or (ii) stockholders have approved the issuance of shares of Common Stock to Holder upon conversion under this Note. 

3. Payment of the Note – Principal and Interest  

a. Term. All principal and all unpaid accrued interest that has not been converted into Capital Stock pursuant
to Section 2 above shall be due and payable on or before the 180th day after the date of this Note (the “Maturity Date”). The Maturity Date may be extended by Holder, at the option of Holder and in its sole discretion, effective upon written
notice of such extension by Holder to Payor not less than 15 calendar days prior to the original Maturity Date. At any time after the Maturity Date (as it may be extended pursuant to this Section 3(a)), Holder may proceed to collect such
unconverted principal and accrued interest. All payments of interest and principal shall be in lawful money of the United States of America and shall be made to Holder at the address stated in Section 9 below. All payments shall be applied
first to accrued interest, and thereafter to principal. 
 b. Payment on Event of Merger or Acquisition. Regardless of
whether Payor causes the events to occur in Section 2.d.1 above, if any consolidation with or merger of Payor with or into another corporation (other than a merger or consolidation in which


  
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Payor is the surviving or continuing corporation) or any sale, lease or conveyance to another corporation of the property of Payor as an entirety or substantially as an entirety, in either case
while any principal or accrued interest remains outstanding under this Note for a sales price equivalent to less than $0.04 per share of Capital Stock (“Sale Price”), then at Holder’s election, the Payor within a reasonable time after
the completion of consolidation or merger (not to exceed 30 days) shall pay to Holder an additional sum of ($0.04 – Sales Price) 3,125,000 (which represents the maximum shares of Capital Stock issuable upon conversion of the Note) (subject to
adjustment in the event of any stock splits, stock dividends or other recapitalization of such class or series of Capital Stock subsequent to the date of such sale or issuance) up to a maximum of $125,000 in addition to any cash amounts
payable for principal or accrued interest after conversion of the Note. This payment is to make Holder whole for its lost expectation of profit if Payor had continued as an independent entity. Payment under this Section 3.b is not considered to
be the contracting for, charge or receipt of interest as contemplated in Section 12 below. 
 c. Payment on Event of
Default. If any Event of Default occurs hereunder, then, at the option and upon the declaration of Holder of this Note and upon written notice to Payor (which election and notice shall not be required in the case of an Event of Default under
Section 4(c) or 4(d) or in a re-occurring Event of Default under Section 4(a) or 4(b)) and Payor’s subsequent failure to cure any such Event of Default under Section 4(d) within the referenced 60-day period, this Note shall
accelerate and all principal and unpaid accrued interest that has not been converted into Common Stock pursuant to Section 2 above shall become due and payable, and, at any time thereafter, Holder may proceed to collect such unconverted
principal and accrued interest and/or proceed with its remedies under any collateral document. 
 d. Default Interest
Rate. In the event Payor fails to pay the entire unpaid principal balance when due or interest when due, Payor shall pay a default penalty (the “Default Penalty”) in an amount equal to 10% of the then outstanding
principal and accrued and outstanding interest under this Note and the entire unpaid principal balance, accrued and outstanding interest, and the Default Penalty (if not paid) shall thereafter bear interest at a default interest rate equal to the
lower of 16% per annum or the highest rate permitted by law (the “Default Rate”). 

e. Prepayment. Payor may prepay this Note at any time after one month following the date hereof; provided that Payor shall give
Holder at least 30 calendar days advance written notice of Payor’s intent so to prepay and Holder shall have the right to convert all or any portion of this Note, as applicable, pursuant to Section 2(b) at any time during such 30 calendar
day period. 
 f. Attorney’s Fees. If an Event of Default shall occur hereunder, Payor shall pay all reasonable
attorneys’ fees and court costs incurred by Holder in enforcing and collecting this Note. 
 4. Events of Default. The
occurrence of any one or more of the following, if uncured within twenty (20) days from written notice thereof with respect to subsections (a) and (b) only and only in the first instance of such failure or breach and any instance
thereafter, upon the occurrence, shall constitute an “Event of Default”: 
 a. Payor fails to pay timely
any of the principal amount due under this Note on the date the same becomes due and payable or any accrued interest or other amounts due under this Note on the date the same becomes due and payable; 

b. Payor breaches any of its material representations, warranties, covenants (including failure to issue shares upon conversion of the
Note) or agreements set forth in the Security Agreement, the Purchase Agreement, this Note or any other agreement between Payor and Holder, and such breach is not cured by Payor within fifteen (15) days of the date Payor receives notice of said
breach; 
 c. Payor files any petition or action for relief under any bankruptcy, reorganization, insolvency or moratorium law
or any other law for the relief of, or relating to, debtors, now or hereafter in effect, or makes any assignment for the benefit of creditors or takes any corporate action in furtherance of any of the foregoing; and 

d. An involuntary petition is filed against Payor under any bankruptcy statute now or hereafter in effect, unless such petition is
dismissed or discharged within sixty (60) days thereafter, or a custodian, receiver, trustee, assignee for the benefit of creditors (or other similar official) is appointed to take possession, custody or control of any property of Payor.

 5. Transfer. 
 a. In order to transfer this Note, Holder, or its duly authorized representative, shall provide Payor a copy of an assignment duly executed by Holder hereof, but in no event shall this Note be transferred
to a third party unrelated to Holder, unless (i) an Event of Default under Section 4(a) of this Note has been declared by Holder and (ii) Payor shall have received prior written notice of such transfer. In the event that Holder seeks
to make a transfer of this Note to an unrelated party in the absence of registration under the 1933 Act and any applicable state securities laws, Holder shall furnish an opinion of counsel satisfactory in form and in substance to Payor that such
transfer is exempt from registration under the 1933 Act and any applicable state securities laws 

  
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 b. This Note is, and each certificate representing Conversion Shares shall be, stamped or
otherwise imprinted with a legend substantially in the following form: 
 “The securities represented hereby have not been
registered under the Securities Act of 1933, as amended, or applicable state securities laws and may not be reoffered, sold, transferred, pledged, or otherwise disposed of except pursuant to (1) registration under such act or laws or
(2) an exemption from registration under such act or laws.” 
 6. Loss or Mutilation of Note. Upon receipt by Payor of
evidence reasonably satisfactory to Payor of the loss, theft, destruction or mutilation of this Note, together with an indemnity reasonably satisfactory to Payor, in the case of loss, theft, or destruction, or the surrender and cancellation of this
Note, in the case of mutilation, Payor shall execute and deliver to Holder a new Note of like tenor and denomination as this Note. 
 7.
Waiver or Amendment. Any term of this Note may be amended or waived with the written consent of Payor and Holder. The failure of Holder to enforce at any time any of the provisions of this Note shall not, absent an express written
waiver signed by Holder specifying the provision being waived, be construed to be a waiver of any such provision, nor in any way to affect the validity of this Note or any part hereof or the right of Holder thereafter to enforce each and every such
provision. No waiver of any breach of this Note shall be held to be a waiver of any other or subsequent breach. 
 8. Taxes. Payor
agrees that it will pay, when due and payable, any and all stamp, original issue or similar taxes which may be payable in respect of the issue of this Note and/or any Conversion Shares or certificates therefor. Payor shall not, however, be required
to pay any stamp, original issue or similar tax which may be payable in respect of any transfer involved in the transfer and delivery of stock certificates to a person other than of Holder. 
 9. Notices. All notices or other communications to a party required or permitted hereunder shall be in writing and shall be delivered personally or by facsimile (receipt confirmed
electronically) to such party (or, in the case of an entity, to an executive officer of such party) or shall be sent by a reputable express delivery service or by certified mail, postage prepaid with return receipt requested, addressed as follows:

 if to Holder to: 
 Kimberly & Daniel O’Donnell 
 12 Crockett Drive 

Moraga, CA 94556-2800 
 if to Payor to: 
 Banks.com, Inc. 

425 Market Street, Suite 2200 
 San Francisco, CA 94105 
 Attention: Janet Steiniger 

Treasurer 

with a copy to: 
 Foley & Lardner 
 100 North Tampa Street 

Suite 2700 

P.O. Box 3391 

Tampa, FL 33601-3391 
 Attention: Martin Traber 
 Any party may change the above specified recipient and/or mailing
address by notice to all other parties given in the manner herein prescribed. All notices shall be deemed given on the day when actually delivered as provided above (if delivered personally or by facsimile, provided that any such facsimile is
received during regular business hours at the recipient’s location) or on the day shown on the return receipt (if delivered by mail or delivery service). 
 10. Headings. The titles and headings to the Sections herein are inserted for the convenience of reference only and are not intended to be a part of or to affect the meaning or
interpretation of this Note. This Note shall be construed without regard to any presumption or other rule requiring construction hereof against the party causing this Note to be drafted. 
 11. Governing Law; Waiver of Jury Trial. This Note shall be governed by and construed under the laws of the State of Florida, without giving effect to conflicts of laws principles that would
require the application of the laws of any other jurisdiction. THE 

  
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PARTIES EACH HEREBY, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, WAIVE THEIR RESPECTIVE RIGHTS TO JURY TRIAL OF ANY DISPUTE BASED UPON OR ARISING OUT OF THIS AGREEMENT OR ANY OTHER
AGREEMENTS RELATING HERETO OR ANY DEALINGS AMONG THEM RELATING TO THE TRANSACTIONS. 
 12. Usury. Notwithstanding anything to the
contrary contained herein, no provisions of this Note shall require the payment or permit the collection of interest in excess of the Maximum Lawful Rate. If any excess of interest in such respect is herein provided for, or shall be adjudicated to
be so provided, in this Note or otherwise in connection with this loan transaction, the provisions of this Section 12 shall govern and prevail, and neither Payor nor the sureties, guarantors, successors or assigns of Payor shall be obligated to
pay the excess amount of such interest, or any other excess sum paid for the use, forbearance or detention of sums loaned pursuant hereto. If for any reason interest in excess of the Maximum Lawful Rate shall be deemed charged, required or permitted
by any court of competent jurisdiction, any such excess shall be applied as a payment and reduction of the principal of indebtedness evidenced by this Note; and, if the principal amount hereof has been paid in full, any remaining excess shall
forthwith be paid to Payor. In determining whether or not the interest paid or payable exceeds the Maximum Lawful Rate, Payor and Holder shall, to the extent permitted by applicable law and subject to section 3(b) above, (i) characterize any
non-principal payment as an expense, fee, or premium rather than as interest, (ii) exclude voluntary prepayments and the effects thereof, and (iii) amortize, prorate, allocate, and spread in equal or unequal parts the total amount of
interest throughout the entire contemplated term of the indebtedness evidenced by this Note so that the interest for the entire term does not exceed the Maximum Lawful Rate. As used herein, the term “Maximum Lawful Rate” shall mean
the maximum lawful rate of interest which may be contracted for, charged, taken, received or reserved by Holder in accordance with the applicable laws of the State of Florida. 

 

			
	Payor:
	Banks.com, Inc.
	a Florida corporation
		
	By:	 	 /s/ Janet E. Steiniger

	Name:	 	Janet E. Steiniger
	Title:	 	Treasurer
	
	Lender:
		
	By:	 	 /s/ Kimberly O’Donnell

	Name:	 	Kimberly O’Donnell
		
	By:	 	 /s/ Daniel O’Donnell

	Name:	 	Daniel O’Donnell



  
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