<PAGE>
EXHIBIT 6.46
Date: November 14, 2000
Amount: $________
TOTAL FILM GROUP, INC.
SERIES C SENIOR CONVERTIBLE PROMISSORY NOTE
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Convertible into
Common Stock
of
Total Film Group, Inc.
(A Delaware Corporation)
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THIS NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED
(THE "ACT"), OR UNDER THE SECURITIES LAWS OF ANY STATE. THESE SECURITIES HAVE
BEEN ACQUIRED FOR INVESTMENT AND MAY NOT BE TRANSFERRED OR SOLD IN THE ABSENCE
OF AN EFFECTIVE REGISTRATION OR OTHER COMPLIANCE UNDER THE ACT OR THE LAWS OF
THE APPLICABLE STATE OR A "NO ACTION" OR INTERPRETIVE LETTER FROM THE SECURITIES
AND EXCHANGE COMMISSION OR AN OPINION OF COUNSEL REASONABLY SATISFACTORY TO THE
ISSUER, AND ITS COUNSEL, TO THE EFFECT THAT THE SALE OR TRANSFER IS EXEMPT FROM
REGISTRATION UNDER THE ACT AND SUCH STATE STATUTES.
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Total Film Group, Inc., a corporation duly organized and existing under
the laws of the State of Delaware (hereinafter referred to as the "Maker"), for
value received, hereby promises to pay to the following registered holder hereof
at the address stated,
the principal sum of _____________________ dollars ($______) in such lawful
money of the United States of America as at the time of payment shall be legal
tender for the payment of public and private debts, on the terms and at the time
hereinafter provided.
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This Note is one of a series of notes to be issued by the Maker, which
in the aggregate shall total not more than $525,000. This Note is subject to the
following terms and provisions:
1. PAYMENT AND INTEREST. This Note shall be due and payable on or
before six months from the date hereof, except as set forth below. The Maker
shall pay to the holder of this Note simple interest on the principal amount of
this Note at the rate of 12% per annum commencing on the date of this Note and
payable quarterly thereafter so long as any principal amount of this loan shall
remain unpaid. If the Maker shall raise $3,000,000 equity or debt funds through
either a private or public sale of its securities during the term of this Note,
or thereafter if this Note shall not be paid or converted in full, the Maker
shall the net proceeds of such offering or offerings, toward the payment of this
and the other notes of this series. Such funds shall be applied pro rata to this
Note and any other outstanding notes issued in this series.
2. SUBORDINATION. The principal amounts of any notes issued subsequent
to November 14, 2000, or to be issued by the Maker, in default or not in
default, shall at all times be subject and subordinate to this series of notes.
3. CONVERSION.
a. Subject to and in compliance with, the provisions contained
herein, the holder of this Note is entitled, at its option, at any time prior to
maturity, or in case this Note or some portion hereof shall have been called for
prepayment prior to such date, then, in respect of this Note or such portion
hereof, until and including, but not after, the close of business within 10 days
of the date of notice of prepayment, to convert this Note (or any portion
thereof), together with accrued but unpaid interest, into fully paid and
nonassessable shares (calculated as to each conversion to the nearest share) of
common stock (the "Shares") of the Maker by surrender of this Note, duly
endorsed (if so required by the Maker) or assigned to the Maker or in blank, to
"Total Film Group, Inc." at its offices, accompanied by written notice to the
Maker, in the form set forth below, that the holder hereof selects to convert
this Note or, if less than the entire amount hereof is to be converted, the
portion hereof to be converted. Such conversion shall be effected at the rate of
one Share for each $2.00 of principal and interest to be converted until May 13,
2001; at $1.50 per Share from May 14, 2001, until August 12, 2001; and at $1.00
per share thereafter. No fractions of Shares will be issued on conversion, but
instead of any fractional interest, the Maker will round up such fractional
share to the next whole share.
b. If the Maker shall at any time subdivide its outstanding
shares of common stock by recapitalization, reclassification or split-up
thereof, or if the Maker shall declare a stock dividend or distribute shares of
its common stock to its stockholders, the number of Shares convertible pursuant
to this Note immediately prior to such subdivision shall be proportionately
increased in each instance, and if the Maker shall at any time combine the
outstanding shares of common stock by recapitalization, reclassification or
combination thereof, the number of Shares convertible pursuant to this Note
immediately prior to such combination shall be proportionately decreased in each
instance.
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c. Whenever the number of Shares convertible pursuant to this
Note is required to be adjusted, the conversion price shall be adjusted (to the
nearest cent) in each instance by multiplying such conversion price immediately
prior to such adjustment by a fraction (x) the numerator of which shall be the
number of Shares purchasable upon the conversion of this Note immediately prior
to such adjustment, and (y) the denominator of which shall be the number of
Shares so convertible immediately thereafter.
4. PREPAYMENT. This Note is subject to prepayment, in whole or in
part, at any time upon not less than 10 days notice by certified or registered
mail at the election of the Maker. Prepayment shall be effected by paying the
amount equal to the outstanding principal amount of this Note, plus all interest
accrued but unpaid to the date of prepayment. During the 10 days following the
date of any notice of prepayment, the holder shall have the right to convert
this Note to the common stock of the Maker, on the terms and conditions provided
for in paragraph 2 above.
5. LIMITATIONS ON RIGHT OF CONVERSION. Following receipt of the
written notice of intention to convert the Note, the Maker shall take such steps
as it deems appropriate to permit conversion of the Note as specified in the
notice and to issue such Shares pursuant to a valid exemption from registration
or qualification under applicable federal and state securities laws; PROVIDED,
that in no event shall the Maker be required to consent to the general service
of process or to qualify as a foreign corporation in any jurisdiction where the
Note holder resides if such jurisdiction is different than such Note holder's
residence when the Note was originally issued. In order to comply with
exemptions from the registration requirements of the Act and certain state
securities statutes, the Maker may require the holder of this Note to make
certain representations and execute and deliver to the Maker certain documents
as a condition to exercise of conversion rights hereunder, all in form and
substance satisfactory to the Maker as determined in its sole discretion. In the
event the Maker reasonably determines that the Note cannot be converted in
compliance with applicable federal and state securities laws in the absence of
registration or qualification under such statutes, the Maker shall be under no
obligation to permit conversion of the Note and issue any shares of common stock
pursuant hereto. The Maker shall utilize its best efforts to qualify such Shares
for sale under the applicable state laws in those jurisdictions in which the
holder of the Note resides at the time of conversion. If, notwithstanding such
efforts to qualify such Shares for sale in such state, the Maker is unable to so
qualify such Shares for sale in such state, the Shares delivered shall be
subject to applicable restrictions on their transfer under the laws of such
state or, if no exemption from registration is available, this Note shall not be
convertible.
6. SATISFACTION AND DISCHARGE OF NOTE. This Note shall cease to be of
further effect (except as to any surviving rights of conversion, transfer, or
exchange of the Note herein expressly provided for) when:
a. The Maker has paid or caused to be paid all sums payable
hereunder by the Maker, including all principal amounts and interest accrued
under the Note, or the Note has been fully converted as set forth above; and
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b. All the conditions precedent herein provided for relating to
the satisfaction and discharge of this Note have been complied with.
7. EVENTS OF DEFAULT. "Event of Default," when used herein, whatever
the reason for such Event of Default and whether it shall be voluntary or
involuntary or be effected by operation of law pursuant to any judgment, decree,
or order of any court or any order, rule, or regulation of any administration or
government body or be caused by the provisions of any paragraph herein, means
any one of the following events:
a. Default in the payment of any interest on this Note when it
becomes due and payable, and continuance of such default for a period of 30
days; or
b. Default in the payment of the principal amount of this Note
when due, whether at maturity, upon prepayment, or otherwise; or
c. Default in the performance or breach of any covenant or
warranty of the Maker in this Note (other than a covenant or warranty, the
breach or default in performance of which is elsewhere in this section
specifically dealt with), and continuation of such default or breach for a
period of 30 days after there has been given to the Maker by registered or
certified mail, by the holder of this Note, a written notice specifying such
default or breach and requiring it to be remedied and stating that such notice
is a notice of default hereunder;
d. The entry of a decree or order by a court having
jurisdiction in the premises adjudging the Maker a bankrupt or insolvent under
the Federal Bankruptcy Act or any other applicable federal or state law, or
appointing a receiver, liquidator, assignee, trustee (or other similar official)
of the Maker or of any substantial part of its property, or ordering the
winding up or liquidation of its affairs, and the continuance of any such decree
or order unstayed and in effect for a period of 60 consecutive days; or
e. The institution by the Maker of proceedings to be adjudicated a
bankrupt or insolvent, or the consent by it to the institution of bankruptcy or
insolvency proceedings against it, or a filing by it of a petition or answer or
consent seeking reorganization or relief under the Federal Bankruptcy Act or any
other applicable federal or state law; or the consent by it to the filing of any
such petition or the appointment of a receiver, liquidator, assignee, trustee
(or other similar official) of the Maker or of any substantial part of its
property, or the making by it of any assignment for the benefit of creditors, or
the admission by it in writing of its inability to pay its debts generally as
they become due, or the taking of corporate action by the Maker in furtherance
of any such action.
8. ACCELERATION OF MATURITY. If an Event of Default occurs and is
continuing then, in every such case, the holder of this Note may declare the
principal of this Note to be due and payable immediately, by a notice in writing
to the Maker of such default, and upon any such declaration, such principal
shall become immediately due and payable. At such time after such declaration of
acceleration has been made, and before a judgment or decree for payment of money
due has been obtained by the holder, the holder of this Note, by written notice
to the
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Maker, may rescind and annul such declaration and its consequences, if all
Events of Default, other than the nonpayment of the principal of this Note
which has become due solely by such acceleration, has been cured or waived.
No such rescission shall affect any subsequent default or impair any right
consequent thereon.
9. RESTRICTIONS. The holder of this Note, by acceptance hereof, both
with respect to the Note and the Shares to be issuable upon conversion of the
Note, or the shares to be issued upon an Event of Default, represents and
warrants as follows:
a. The Note and the shares of common stock are being acquired for
the holder's own account to be held for investment purposes only and not with a
view to, or for, resale in connection with any distribution of such Note or
shares or any interest therein without registration, an applicable exemption
from registration, or other compliance under the Act, and the holder hereof has
no direct or indirect participation in any such undertaking or in underwriting
such an undertaking.
b. The holder hereof has been advised and understands that the
Note and the shares have not been registered under the Act and the Maker is
under no obligation to register the Note and/or the Shares under the Act.
10. DEFAULT COSTS. Should the Maker or the holder of this Note
default in any of the covenants, conditions, or promises contained herein,
the defaulting party shall pay all costs and expenses, including a reasonable
attorney's fee, which may arise or accrue therefrom, or in pursuing any
remedy provided hereunder or by the statutes of any state.
11. RIGHTS ARE CUMULATIVE. The rights and remedies granted to the
parties hereunder shall be in addition to and cumulative of any other rights or
remedies either may have under any document or documents executed in connection
herewith or available under applicable law. No delay or failure on the part of a
party in the exercise of any power or right shall operate as a waiver thereof
nor as an acquiescence in any default nor shall any single or partial exercise
of any power or right preclude any other or further exercise thereof or the
exercise of any other power or right.
12. WAIVER AND AMENDMENT. None of the provisions hereof may be changed,
waived, terminated or discharged orally, but only by an instrument in writing
signed by the party against whom enforcement of the change, waiver, termination
or discharge is sought.
13. NOTICES. All communications provided for herein shall be in writing
and shall be deemed to be given or made when served personally or when deposited
in the United States mail addressed, if to the Maker at 9107 Wilshire Blvd.,
Suite 475, Beverly Hills, CA 90210, Attention: Gerald Green, President, or if to
holder of this Note, at the address furnished to the Maker by such holder, or at
such other address as shall be designated by any party hereto in written notice
to the other party hereto delivered pursuant to this paragraph.
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14. PRESENTMENT WAIVER. The makers, guarantors, and endorsers hereof,
if any, severally waive presentment for payment, protest, and notice of protest
and of nonpayment of this Note.
15. PARTIAL INVALIDITY. If any term of this Note shall be held to be
invalid or unenforceable, such term shall be deemed to be severable and the
validity of the other terms of this Note shall in no way be affected thereby.
Total Film Group, Inc.
By /s/ Gerald Green
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Gerald Green, President
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Total Film Group, Inc.
9107 Wilshire Boulevard
Suite 475
Beverly Hills, CA 90210
Re: Conversion of Note
Gentlemen:
The undersigned owner of this Note hereby irrevocably exercises the
option to convert this Note or the portion hereof designated, into shares of
common stock of Total Film Group, Inc., in accordance with the terms of this
Note, and directs that the shares issuable and deliverable upon the conversion
be issued in the name of and delivered to the undersigned unless a different
name has been indicated below. If shares are to be issued in the name of a
person other than the undersigned, the undersigned will pay any transfer taxes
payable with respect thereto.
Date:
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(Signature)
FILL IN FOR REGISTRATION OF SHARES
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(Printed Name) (Social Security or other identifying number)
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(Street Address)
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(City, State, and ZIP Code) Portion to be converted (if less than all)
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Schedule for Promissory Note
<TABLE>
<CAPTION>
Name Amount
---- --------
<S> <C>
Lancer Offshore $400,000
The Viator Fund Ltd $125,000
</TABLE>
