Designation and Terms of Securities (a) The aggregate principal amount of Securities that may be authenticated and delivered under this Indenture is unlimited. The Securities may be issued in one or more series up to the aggregate principal amount of Securities of that series from time to time authorized by or pursuant to a Board Resolution or pursuant to one or more indentures supplemental hereto. Prior to the initial issuance of Securities of any series, there shall be established in or pursuant to a Board Resolution, and set forth in an Officer’s Certificate, or established in one or more indentures supplemental hereto:
(1) the title of the Securities of the series (which shall distinguish the Securities of that series from all other Securities);
(2) any limit upon the aggregate principal amount of the Securities of that series that may be authenticated and delivered under this Indenture (except for Securities authenticated and delivered upon registration of transfer of, or in exchange for, or in lieu of, other Securities of that series);
(3) the maturity date or dates on which the principal of the Securities of the series is payable;
(4) the form of the Securities of the series including the form of the certificate of authentication for such series;
(5) the applicability of any guarantees;
(6) whether or not the Securities will be secured or unsecured, and the terms of any secured debt;
(7) whether the Securities rank as senior debt, senior subordinated debt, subordinated debt or any combination thereof, and the terms of any subordination;
(8) if the price (expressed as a percentage of the aggregate principal amount thereof) at which such Securities will be issued is a price other than the principal amount thereof, the portion of the principal amount thereof payable upon declaration of acceleration of the maturity thereof, or if applicable, the portion of the principal amount of such Securities that is convertible into another security or the method by which any such portion shall be determined;
(9) the interest rate or rates, which may be fixed or variable, or the method for determining the rate and the date interest will begin to accrue, the dates interest will be payable and the regular record dates for interest payment dates or the method for determining such dates;
(10) the Company’s right, if any, to defer the payment of interest and the maximum length of any such deferral period;
(11) if applicable, the date or dates after which, or the period or periods during which, and the price or prices at which, the Company may at its option, redeem the series of Securities pursuant to any optional or provisional redemption provisions and the terms of those redemption provisions;
(12) the date or dates, if any, on which, and the price or prices at which the Company is obligated, pursuant to any mandatory sinking fund or analogous fund provisions or otherwise, to redeem, or at the Securityholder’s option to purchase, the series of Securities and the currency or currency unit in which the Securities are payable;
(13) the denominations in which the Securities of the series shall be issuable, if other than denominations of one thousand U.S. dollars ($1,000) or any integral multiple thereof;
(14) any and all terms, if applicable, relating to any auction or remarketing of the Securities of that series and any security for the obligations of the Company with respect to such Securities and any other terms which may be advisable in connection with the marketing of Securities of that series;
(15) whether the Securities of the series shall be issued in whole or in part in the form of a Global Security or Securities; the terms and conditions, if any, upon which such Global Security or Securities may be exchanged in whole or in part for other individual Securities; and the Depositary for such Global Security or Securities;
(16) if applicable, the provisions relating to conversion or exchange of any Securities of the series and the terms and conditions upon which such Securities will be so convertible or exchangeable, including the conversion or exchange price, as applicable, or how it will be calculated and may be adjusted, any mandatory or optional (at the Company’s option or the holders’ option) conversion or exchange features, the applicable conversion or exchange period and the manner of settlement for any conversion or exchange, which may, without limitation, include the payment of cash as well as the delivery of securities;
(17) if other than the full principal amount thereof, the portion of the principal amount of Securities of the series which shall be payable upon declaration of acceleration of the maturity thereof pursuant to Section 6.01;
(18) additions to or changes in the covenants applicable to the series of Securities being issued, including, among others, the consolidation, merger or sale covenant;
(19) additions to or changes in the Events of Default with respect to the Securities and any change in the right of the Trustee or the Securityholders to declare the principal, premium, if any, and interest, if any, with respect to such Securities to be due and payable;
(20) additions to or changes in or deletions of the provisions relating to covenant defeasance and legal defeasance;
(21) additions to or changes in the provisions relating to satisfaction and discharge of this Indenture;
(22) additions to or changes in the provisions relating to the modification of this Indenture both with and without the consent of Securityholders of Securities issued under this Indenture;
(23) the currency of payment of Securities if other than U.S. dollars and the manner of determining the equivalent amount in U.S. dollars;
(24) whether interest will be payable in cash or additional Securities at the Company’s or the Securityholders’ option and the terms and conditions upon which the election may be made;
(25) the terms and conditions, if any, upon which the Company shall pay amounts in addition to the stated interest, premium, if any and principal amounts of the Securities of the series to any Securityholder that is not a “United States person” for federal tax purposes;
(26) any restrictions on transfer, sale or assignment of the Securities of the series; and
(27) any other specific terms, preferences, rights or limitations of, or restrictions on, the Securities, any other additions or changes in the provisions of this Indenture, and any terms that may be required by us or advisable under applicable laws or regulations. All Securities of any one series shall be substantially identical except as may otherwise be provided in or pursuant to any such Board Resolution or in any indentures supplemental hereto. If any of the terms of the series are established by action taken pursuant to a Board Resolution of the Company, a copy of an appropriate record of such action shall be certified by the secretary or an assistant secretary of the Company and delivered to the Trustee at or prior to the delivery of the Officer’s Certificate of the Company setting forth the terms of the series. Securities of any particular series may be issued at various times, with different dates on which the principal or any installment of principal is payable, with different rates of interest, if any, or different methods by which rates of interest may be determined, with different dates on which such interest may be payable and with different redemption dates.
Amount and Terms of the Loan The Loan. Subject to the terms of this Agreement, each Purchaser agrees to lend to the Company at the Closing (as hereinafter defined) the amount set forth opposite such Purchaser’s name on the Schedule of Purchasers attached to this Agreement (each, a “Loan Amount”) against the issuance and delivery by the Company of a convertible promissory note for such amount, in substantially the form attached hereto as Exhibit A (each, a “Note” and collectively, the “Notes”).
Terms of Securities A Board Resolution, a supplemental indenture hereto or an Officers’ Certificate shall establish whether the Securities of a Series shall be issued in whole or in part in the form of one or more Global Securities and the Depositary for such Global Security or Securities.
Amount and Terms of Loan 1.1 Subject to the terms and conditions of this Agreement, the Lenders agree to loan to the Borrower, and the Borrower agrees to borrow from Lenders, funds in an aggregated principal amount of up to Five Million Two Hundred Thousand US Dollars ($5,286,306.25) (the "Loan"), in installments of One Hundred Thousand Dollars or greater (each a "Loan Disbursement").
1.2 The Borrower acknowledges receipt of Loan Disbursements in the aggregate amount of Two Million Six Hundred Thousand Dollars ($2,600,000.00) prior to the date hereof (collectively, the “Initial Disbursement”). The Borrower may submit to Borrower written requests for additional Loan Disbursements from time after the date hereof, but in no event later than March 1, 2011 (each, a “Loan Disbursement Request”). Each such Loan Disbursement Request is subject to the Lenders' approval, and the maximum amount advanced by the Lenders shall not exceed the total amount of the Loan. The Borrower may decline to submit any further Loan Disbursement Requests for any reason, in its sole and absolute discretion. The Lenders may decline to approve any or all such Loan Disbursements Requests for any reason, in their sole and absolute discretion.
1.3 Loan Disbursements shall be made within five (5) business days following Lenders' approval of the applicable Loan Disbursement Request. Interest shall accrue on each Loan Disbursement from the date of receipt of funds (each a "Disbursement Date") by the Borrower.
1.4 The proceeds of the Loan shall be used by the Borrower to finance the general working capital requirements of the Borrower.
1.5 The obligations of Borrower with respect to the Loan shall be guaranteed by Guarantor, and shall be secured by liens and security interests on all of the assets of the Guarantor (including without limitation all intellectual property interests of Guarantor), pursuant to the terms of a Guarantee and a Debenture by and between the Lenders and Guarantor (together, the “Guaranty Documents”). Such Guarantee shall remain in effect until the earlier of such time as (i) all obligations of Borrower with respect to the Loan have been satisfied and (ii) the right to make Loan Disbursement Requests is waived or terminated, or the Guarantor first reports positive accumulated earnings and profits within the meaning of Section 956 of the Internal Revenue Code of 1986, as amended (the “Guaranty Term”).
1.6 Interest on the Loan shall be payable as set forth in the applicable Note (as defined below). Interest shall be computed on the basis of a 360-day year, for the actual number of days elapsed. Default interest shall be charged in accordance with the terms of the applicable Note.
1.7 The principal balance of the Loan shall be payable as set forth in the applicable Note.
1.8 As evidence of the Borrower’s obligations under the Loan, upon receipt of each Loan Disbursement, the Borrower shall execute and deliver to the Lender(s) making such Loan Disbursement a Secured Convertible Promissory Note (the “Note”) in the form attached hereto as Exhibit B, dated as of the Disbursement Date, and with a principal amount of the Loan Disbursement.
1.9 The Notes issued to Initial Lender in connection with the Initial Disbursement (the "Initial Notes") shall be exchanged by Initial Lender for an Amended and Restated Note, in the aggregate principal amount of the Initial Disbursement, plus all interest accrued thereon and unpaid as of the date hereof (the "Amended and Restated Note"). The terms of the Amended and Restated Note shall be as set forth in this Agreement.
1.10 Simultaneous with the making of a Loan Disbursement and its receipt of a Note in connection therewith, each Lender shall execute counterpart signature pages to this Agreement, and shall become a party to, and bound by, this Agreement to the same extent as if such Lender had been a Lender as of the date of this Agreement. In connection with each such Loan Disbursement, the Schedule of Lenders attached to this Agreement as Exhibit A will be amended to add to Exhibit A the names of the Lender(s) making the Loan Disbursement as a "Lender" hereunder and to set forth the principal amount of each Note issued to such Lender(s). The Borrower will promptly furnish to each Lender upon request a copy of Exhibit A as amended to the date of such request.
1.11 As additional consideration paid to the Lenders in connection with the Loan, and notwithstanding any partial or full payment by Borrower of the principal or interest due on the Notes or the occurrence of the Maturity Date set forth in the Notes, and in addition to any and all other obligations of Borrower hereunder:
(a) Borrower will pay to each Lender an amount (the “Revenue Incentive Payment”) equal to the product obtained by multiplying (i) such Lender's Pro Rata Interest (as defined below), times (ii) an amount (the “Revenue Incentive Payment”) equal to five percent (5%) of the Net Sales Revenue received by the Borrower (or any Borrower Affiliate) from, arising out of or in connection with the sale, licensing, other distribution or any other commercialization, including without limitation the sale of "beta" versions (collectively, a “Sale”) of Borrower's Facemail Product (as defined below) during the period (the “Measuring Period”) commencing on the first day of commercial availability of the Facemail Product and ending at the close of the calendar quarter during which the 5th anniversary of such commercial availability occurred. For the avoidance of doubt: (i) Revenue Incentive Payments shall be due with respect to Net Sales Revenue received by the Borrower (or a Borrower Affiliate) during and after the Measuring Period provided such Net Sales Revenue arose from the Sale of the Facemail Product during the Measuring Period; (ii) the Facemail Product will be commercially available upon (and not before) the first Sale for revenue to a non-Affiliate; and (iii) a Sale shall include the sale, transfer, licensing or other disposition of the Facemail Product in its entirety, in a single transaction or a series of transactions.
(b) Net Sales Revenue will be reported quarterly within 30 days of the close of each calendar quarter (each, a “Reporting Period”) during the Measuring Period. Within thirty (30) days after the end of each Reporting Period, Borrower will provide to Agent either (i) a report reasonably detailing Net Sales Revenue for the preceding Reporting Period when there has been any Net Sales Revenue with respect to such Reporting Period the calculation of the Revenue Incentive Payment, and/or (ii) a letter signed by a Borrower officer certifying that there has been no Net Sales Revenue when there has been no Net Sales Revenue with respect to such Reporting Period. With each such report will be paid any required Revenue Incentive Payment. Borrower will keep accurate books of account containing all particulars that may reasonably be deemed necessary for the purpose of showing the Revenue Incentive Payments due to the Lenders hereunder. Said books of account will be kept at Company’s principal place of business. Not more than once during every twelve (12) month period during the Measurement Period and for so long as Net Sales Revenue are being generated, and upon the Agent's advance request of at least fifteen (15) days, Borrower will make said books and the supporting data available for inspection by Agent or its agents during normal business hours for the purpose of verifying Company’s receipt of Net Sales Revenue and calculations of Revenue Incentive Payments due under this Agreement. Should such inspection lead to the discovery of a greater than five percent (5%) discrepancy in reporting to the Lenders' detriment, Company agrees to pay the reasonable fees and expenses of Agent's agents who conducted the inspection plus an amount equal to ten percent (10%) of the amount of such discrepancy. Company will promptly pay to Agent for the benefit of the Lenders all amounts appropriately determined by any inspection to be due to Developer.
(c) As used in this Section 1.11:
Title and Terms; Denominations The aggregate number of Units evidenced by Certificates authenticated, executed on behalf of the Holders and delivered hereunder is limited to 40,000,000 Units except for Certificates authenticated, executed and delivered upon registration of transfer of, in exchange for, or in lieu of, other Certificates pursuant to Section 3.4, Section 3.5, Section 3.10, Section 3.12, Section 3.13, Section 5.9 or Section 8.5. The Certificates shall be issuable only in registered form and only in denominations of a single Corporate Unit or Treasury Unit and any integral multiple thereof.
Amount and Terms of the Loans 2.1 Commitments 25 2.2 Borrowings 26 2.3 Disbursements; Funding Reliance; Domicile of Loans 29 2.4 Evidence of Debt; Notes 30
Amount and Terms of Loans Pursuant to the terms of this Agreement, Lender shall make Loans to the Company, upon its request and within three (3) business days of such request, which in the aggregate do not exceed Four Hundred Fifty Thousand and 00/100 Dollars ($450,000.00). The Loans and each of them shall be made upon the following terms and conditions:
(a) The maximum aggregate principal amount of the Loans shall be in the amount of Four Hundred Fifty Thousand and 00/100 Dollars ($450,000.00), and shall be evidenced by a promissory grid note (the "Note") with appropriate insertions of names, dates and amounts. The Loans shall bear interest at a rate per annum equal to ten percent (10.00%). Interest shall be charged on the principal balance from time to time outstanding on the basis of the actual number of days elapsed computed on the basis of a three hundred sixty (360) day year. Interest shall be due and payable, in arrears on the Maturity Date (as hereinafter defined);
(b) The Loans made by Lender to the Company pursuant to this Paragraph 2 shall be recorded in an account on the books of Lender bearing the Company's name (the "Company's Account"). There shall also be recorded in the Company's Account all payments made by the Company on the Loans and interest accrued thereon.
(c) The outstanding principal amount owed hereunder, together with all accrued but unpaid interest thereon, shall be due and payable in full on the earlier of (i) the closing of an initial public offering of the Company's securities and (ii) March 3, 2002 (the "Maturity Date");
(d) Maker shall have the right to prepay the outstanding principal amount of this Note, in whole or in part at any time.
(e) The provisions of this Paragraph 2 shall continue in effect until the Maturity Date, PROVIDED, HOWEVER, that Lender's obligations to advance Loans to the Company pursuant to the provisions of this Paragraph 2 shall cease upon the occurrence of an Event of Default (as defined in Paragraph 3 hereof) until such time as said Event of Default is cured.
Loans and Terms of Payment 2.1 [Reserved].
Title and Terms The aggregate principal amount of Securities that may be authenticated and delivered under this Indenture is unlimited. The Securities may be issued in one or more series. There shall be established in or pursuant to a Board Resolution and, subject to Section 3.3, set forth or determined in the manner provided, in an Officers' Certificate, or established in one or more indentures supplemental hereto, prior to the issuance of Securities as a series:
(a) the title of the securities of such series, which shall distinguish the Securities of the series from all other Securities;
(b) the limit, if any, upon the aggregate principal amount of the Securities of such series that may be authenticated and delivered under this Indenture (except for Securities authenticated and delivered upon registration of transfer of, or in exchange for, or in lieu of, other Securities of the series pursuant to Section 3.4, 3.5, 3.6, 9.6 or 11.6 and except for any Securities that, pursuant to Section 3.3, are deemed never to have been authenticated and delivered hereunder); provided, however, that the authorized aggregate principal amount of such series may be increased above such amount by a Board Resolution to such effect;
(c) the Person to whom any interest on a Security of the series shall be payable, if other than the Person in whose name that security (or one or more Predecessor Securities) is registered at the close of business on the Regular Record Date for such interest;
(d) the Stated Maturity or Maturities on which the principal of the Securities of such series is payable or the method of determination thereof, and any dates on which or circumstances under which, the Company shall have the right to extend or shorten such Stated Maturity or Maturities;
(e) the rate or rates, if any, at which the Securities of such series shall bear interest, if any, the rate or rates and extent to which Additional Interest, if any, shall be payable with respect to any Securities of such series, the date or dates from which any such interest or Additional Interest shall accrue, the Interest Payment Dates on which such interest shall be payable, the right, pursuant to Section 3.12 or as otherwise set forth therein, of the Company to defer or extend an Interest Payment Date, and the Regular Record Date for the interest payable on any Interest Payment Date or the method by which any of the foregoing shall be determined;
(f) the place or places where the principal of (and premium, if any) and interest or Additional Interest on the Securities of such series shall be payable, the place or places where the Securities of such series may be presented for registration of transfer or exchange, any restrictions that may be applicable to any such transfer or exchange in addition to or in lieu of those set forth herein and the place or places where notices and demands to or upon the Company in respect of the Securities of such series may be made;
(g) the period or periods within or the date or dates on which, if any, the price or prices at which and the terms and conditions upon which the Securities of such series may be redeemed, in whole or in part, at the option of the Company, and if other than by a Board of Resolution, the manner in which any election by the Company to redeem such Securities shall be evidenced;
(h) the obligation or the right, if any, of the Company to redeem, repay or purchase the Securities of such series pursuant to any sinking fund, amortization or analogous provisions, or at the option of a Holder thereof, and the period or periods within which, the price or prices at which, the currency or currencies (including currency unit or units) in which and the other terms and conditions upon which Securities of the series shall be redeemed, repaid or purchased, in whole or in part, pursuant to such obligation;
(i) the denominations in which any Securities of such series shall be issuable;
(j) if other than Dollars, the currency or currencies (including any currency unit or units) in which the principal of (and premium, if any) and interest and Additional Interest, if any, on the Securities of the series shall be payable, or in which the Securities of the series shall be denominated and the manner of determining the equivalent thereof in Dollars for purposes of the definition of Outstanding;
(k) the additions, modifications or deletions, if any, in the Events of Default or covenants of the Company set forth herein with respect to the Securities of such series;
(l) if, other than the principal amount thereof, the portion of the principal amount of Securities of such series that shall be payable upon declaration of acceleration of the Maturity thereof;
(m) if the principal amount payable at the Stated Maturity of any Securities of the series will not be determinable as of any one or more dates prior to the Stated Maturity, the amount which shall be deemed to be the principal amount of such Securities as of any such date for any purpose thereunder or hereunder, including the principal amount thereof which shall be due and payable upon any Maturity other than the Stated Maturity or which shall be deemed to be Outstanding as of any date prior to the Stated Maturity (or, in any such case, the manner in which such amount deemed to be the principal amount shall be determined);
(n) if applicable, that the Securities of the series, in whole or in any specified part, shall be defeasible and, if other than by a Board Resolution, the manner in which any election by the Company to defease such Securities shall be evidenced;
(o) the additions or changes, if any, to this Indenture with respect to the Securities of such series as shall be necessary to permit or facilitate the issuance of the Securities of such series in bearer form, registrable or not registrable as to principal, and with or without interest coupons;
(p) any index or indices used to determine the amount of payments of principal of and premium, if any, on the Securities of such series or the manner in which such amounts will be determined;
(q) if applicable, that any Securities of the series shall be issuable in whole or in part in the form of one or more Global Securities and, in such case, the respective Depositaries for such Global Securities, the form of any legend or legends that shall be borne by any such Global Security in addition to or in lieu of that set forth in Section 2.4 and any circumstances in addition to or in lieu of those set forth in Section 3.5 in which any such Global Security may be exchanged in whole or in part for Securities registered, and any transfer of such Global Security in whole or in part may be registered, in the name or names of Persons other than the Depositary for such Global Security or a nominee thereof;
(r) the appointment of any Paying Agent or agents for the Securities of such series;
(s) the terms of any right to convert or exchange Securities of such series into any other securities or property of the Company, and the additions or changes, if any, to this Indenture with respect to the Securities of such series to permit or facilitate such conversion or exchange;
(t) if such Securities are to be issued to an Issuer Trust, the form or forms of the Trust Agreement and Guarantee relating thereto;
(u) if, other than as set forth herein, the relative degree, if any, to which the Securities or the series shall be senior to or be subordinated to other series of Securities in right of payment, whether such other series of Securities are Outstanding or not;
(v) any addition to or change in the Events of Default which applies to any Securities of the series and any change in the right of the Trustee or the requisite Holders of such Securities to declare the principal amount thereof due and payable pursuant to Section 5.2;
(w) any addition to or change in the covenants set forth in Article X which applies to Securities of the series; and
(x) any other terms of the Securities of such series (which terms shall not be inconsistent with the provisions of this Indenture, except as permitted by Section 9.1(6)). All Securities of any one series shall be substantially identical except as to denomination and except as may otherwise be provided herein or in or pursuant to such Board Resolution and set forth, or determined in the manner provided, in such Officers' Certificate or in any indenture supplemental hereto. If any of the terms of the series are established by action taken pursuant to a Board Resolution, a copy of an appropriate record of such action shall be certified by the Secretary or an Assistant Secretary of the Company and delivered to the Trustee at or prior to the delivery of the Officers' Certificate setting forth the terms of the series. The securities shall be subordinated in right of payment to Senior Indebtedness as provided in Article XIII.
Amount and Terms of the Commitment Section 2.01 The Advances.............................................7 Section 2.02 Making the Advances......................................7 Section 2.03 Fees.....................................................9 Section 2.04 Reduction or Termination of the Maximum Commitment....
