Contract
Exhibit 10.01
This instrument and the rights and obligations evidenced hereby are subordinated in the manner
and to the extent set forth in that certain Subordination and Intercreditor Agreement (the
“Subordination Agreement”) dated as of December 29, 2008 by and among Xxxx Xxx, as representative
for the creditors set forth on Exhibit A thereto, Glu Mobile Inc., a Delaware corporation (the
“Company”), certain direct and indirect subsidiaries of Borrower from time to time party thereto,
and Silicon Valley Bank, a California banking corporation (the “Senior Lender”),to the indebtedness
(including interest) owed by the Company pursuant to that certain Amended and Restated Loan and
Security Agreement dated as of December 29, 2008 among the Company, certain affiliates of the
Company, and the Senior Lender, and as such Loan and Security Agreement has been and hereafter may
be amended, supplemented or otherwise modified from time to time in accordance with such
Subordination Agreement, and to indebtedness refinancing the indebtedness under such agreements to
the extent permitted by the Subordination Agreement; and each holder of this instrument, by its
acceptance hereof, irrevocably agrees to be bound by the provisions of the Subordination Agreement.
SENIOR SUBORDINATED SECURED PROMISSORY NOTE
| No. A-«—» | ||
| «—» | December 29, 2008 |
1. Obligation. Glu Mobile Inc., a Delaware corporation (the “Company”) hereby
promises to pay to «Noteholder» or «Pronoun» direct or indirect assignees in accordance with
Section 12 hereof «Noteholder» and any such asignee, a “Holder”) the principal sum of US«Total», in
installments on the payment dates set forth in the table below (and in the amount opposite the
applicable payment date) (each such date, a “Payment Date”), at such place as Holder may direct.
Interest shall begin to accrue on April 1, 2009 on the then-outstanding principal amount, at a rate
of seven percent (7%) per annum. All payments on this Note shall be paid in lawful money of the
United States of America. All interest which has then accrued on the entire principal amount of
this Note shall become immediately due and payable as of each Payment Date.
| Payment Date | Payment Amount (exclusive of interest) | |
| January 15, 2009 | «—» | |
| April 1, 2009 | «—» | |
| July 1, 2009 | «—» | |
| March 31, 2010 | «—» | |
| June 30, 2010 | «—» | |
| September 30, 2010 | «—» |
| Payment Date | Payment Amount (exclusive of interest) | |
| December 31, 2010 | «—» |
Notwithstanding the above interest rate, after the occurrence and during the continuance of any
Event of Default (as defined below), all principal then outstanding under this Note shall bear
interest at a default rate equal to 12.0% per annum.
2. Prepayment. Company may at any time, without penalty, upon at least five (5) days
prior written notice to the Holder, prepay in whole or in part the unpaid principal sum of this
Note, plus any unpaid accrued interest under this Note. All payments will first be applied to
accrued interest until all then outstanding accrued interest has been paid, and then to the
repayment of principal.
3. Default; Acceleration of Obligation; Remedies. Time is of the esssence with
respect to the Company’s obligations under this Note. The Company will be deemed to be in default
under this Note and the outstanding unpaid principal balance of this Note, together with all
interest accrued thereon, will immediately become due and payable in full, without the need for any
further action on the part of Holder, upon and as of the occurrence of any of the following events
(each an “Event of Default”): (a) the Company’s failure to make any payment on any applicable
Payment Date of the principal and interest then due; (b) any representation or warranty contained
in the Amendment Agreement or the Security Agreement being untrue or incorrect in any material
respect when made; (c) any breach of any covenant of the Company contained in the Amendment
Agreement or the Security Agreement, and as to any breach that is capable of being cured, such
breach is not cured within 30 days following the giving of notice by the Holder or the
Representative (as defined in the Amendment Agreement); (d) upon the filing by or against the
Company of any voluntary or involuntary petition in bankruptcy or any petition for relief under the
federal bankruptcy code or any other state or federal law for the relief of debtors;
provided, however, with respect to an involuntary petition in bankruptcy, such
petition has not been dismissed within thirty (30) days after the filing of such petition; (e) upon
the execution by the Company of an assignment for the benefit of creditors or the appointment of a
receiver, custodian, trustee or similar party to take possession of the Company’s assets or
property; (f) any Event of Default shall have occurred and be continuing under the Loan and
Security Agreement dated as of February 14, 2007 between- the Company and Silicon Valley Bank
(“SVB”), as from time to time amended or restated, which Event of Default shall either (a) consist
of the failure to pay any amounts of principal or interest due thereunder (and which failure shall
not have been waived by SVB), or (b) have resulted in the acceleration of the maturity of all loans
outstanding thereunder; (g) immediately prior to the dissolution, liquidation or winding up of the
Company or any merger or consolidation of the Company with or into another entity; or (h) any
transaction or series of transactions whereby which any “person” or “group” (as such terms are used
in Sections 13(d) and 14(d) of the Securities Exchange Act of 1934, as amended), (x) becomes the
“beneficial owner” (as defined in Rules 13d-3 and 13d-5 under the Securities Exchange Act of 1934,
as amended, except that a person or group shall be deemed to have “beneficial ownership” of all
securities that such person or group has the right to acquire, whether such right is exercisable
immediately or only after the passage of time), directly or indirectly, of more than fifty percent
(50%) of the outstanding equity securities of the Company entitled to vote for members of the board
of directors or equivalent governing body of the Company (taking into account all such securities
that such person or group has the right to acquire pursuant to any option right) or (y) otherwise
obtains the right to elect a majority of the members of the Company. Upon the occurrence of an
Event of Default, Holder shall be immediately entitled to exercise any and all rights and remedies
possessed by Holder (or which Holder may hereafter possess) under this Note or at law, in equity or
by statute. In the event this Note is placed in the hands of an attorney for collection following
an Event of Default, or if Holder incurs any costs incident to the collection of the indebtedness
evidenced hereby, the Company agrees to pay to Holder an
amount equal to all such costs, including without limitation all reasonable attorneys’ fees
and all court costs.
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4. Security Interest. The performance of the Company of its obligations under this
Note is secured by security interests granted pursuant to a security agreement entered into by the
Company, the Secured Parties thereunder and Xxxx Xxx, as Collateral
Agent, as of December 29, 2008
(the “Security Agreement”).
5. Tax Withholding. (a) Regardless of any action the Company or any affiliate of the
Company takes with respect to any or all income tax, withholding tax, social insurance, payroll
tax, payment on account or other applicable taxes (“Tax Items”) in connection with the Note
(including any interest paid on the Note), Holder hereby acknowledges and agrees that the ultimate
liability for all Tax Items legally due and payable by Holder with respect to the amounts payable
to Holder hereunder are and will remain the responsibility of Holder.
(b) Holder acknowledges and agrees that neither the Company nor any affiliate of the Company make
no representations or undertakings regarding the tax treatment of any aspect of this Note.
(c) Holder acknowledges and agrees that any amounts payable by the Company in respect of this Note
(including any interest) shall be reduced by any withholding tax that may be required under
applicable law and Holder authorizes the Company and/or any affiliate of the Company to satisfy the
obligations with regard to all such Tax Items legally payable by Holder by withholding such amount
from the payment amount due to Holder on any applicable payment date.
(d) If any amount of Tax Items that the Company or any affiliate of the Company is required to
withhold as a result of the Note cannot be satisfied by the means set forth in Section 5(c), (i)
Holder may pay to the Company or an affiliate of the Company such amount or (ii) the Company may
offset such amount against subsequent payments under this Note.
6. Tax Documentation. To the extent applicable, Holder shall deliver to the Company
(i) duly completed copies of Internal Revenue Service Form W-8BEN (or any successor form) claiming
eligibility for benefits of an income tax treaty to which the United States is a party and (ii) any
other form prescribed by applicable law as a basis for claiming exemption from or a reduction in
United States Federal withholding tax duly completed together with such supplementary documentation
as may be prescribed by applicable law to permit the Company or any of its affiliates to determine
the withholding or deduction required to be made.
7. Relationship to Merger Agreement; Waiver and Amendment. This Note is one of a
series of notes (the “Notes” issued pursuant to Section 3 of the Agreement and Plan of Merger,
dated November 28, 2007, by and among the Company, Awaken Limited, a business company with limited
liability incorporated under the laws of the British Virgin Islands (the “Awaken Limited”), Awaken
(Beijing) Communications Technology CO. Ltd., a wholly foreign-owned enterprise organized under the
laws of the PRC (the “WFOE”), Beijing Zhangzhong MIG Information Technology Co., Ltd., a domestic
limited liability company organized under the laws of the PRC (“MIG”), Beijing Qinwang Technology
Co. Ltd., a domestic limited liability company organized under the laws of the PRC (“Qinwang”), and
Xxxx Xxx, as the representative of (and on behalf of each of) the former shareholders of the
Company (the “Representative”) (such agreement, the “Merger Agreement”), as amended by the First
Amendment to the Agreement and Plan of Merger, dated December 29, 2008, by the Company, Awaken
Limited, the WFOE, MIG, Qinwang and the Representative (the “Amendment Agreement”). All Notes
issued pursuant to the Merger Agreement, as amended by the Amendment Agreement, shall be deemed to
rank
pari passu in seniority and right to payment to one another, as well as to the obligations of
the Company pursuant to that certain Guaranty, dated the date hereof, for the benefit of Wang Bin
and Xxxx Xxx related to that certain note issued pursuant to that certain Employment
Agreement
dated as of November 28, 2007 by and between Wang Bin and MIG , as amended by that certain
Amendment to Employment
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Agreement
dated December 29, 2008, and that certain note issued pursuant to
that certain Employment Agreement dated as of November 28, 2007 by and between Xxxx Xxx and MIG, as
amended by that certain Amendment to Employment Agreement dated
December 29, 2008. Any provision
of the Notes may be amended or modified only by a writing signed by both the Company and holders of
a majority in principal amount of the Notes (except that the consent of Holder shall be required
for any such amendment that applies to Holder only and not to holders of any of the other Notes).
Except as provided below with respect to waivers by the Company, no waiver or consent with respect
to this Note will be binding or effective unless it is set forth in writing and signed by the party
against whom such waiver is asserted. No failure to accelerate the indebtedness evidenced hereby
by reason of an Event of Default hereunder, acceptance of a past-due installment or other
indulgences granted from time to time, shall be construed as a novation of this Note or as a waiver
of such right of acceleration or of the right of Holder thereafter to insist upon strict compliance
with the terms of this Note or to prevent the exercise of such right of acceleration or any other
right granted hereunder or by applicable law. No extension of the time for payment of the
indebtedness evidenced hereby or any installment due hereunder, made by agreement with any person
now or hereafter liable for payment of the indebtedness evidenced hereby, shall operate to release,
discharge, modify, change or affect the original liability of the Company hereunder or that of any
other person now or hereafter liable for payment of the indebtedness evidenced hereby, either in
whole or in part, unless Holder agrees otherwise in writing.
8. Waivers of Company. The Company hereby waives presentment, notice of non-payment,
notice of dishonor, protest, demand and diligence.
9. Governing Law. This Note will be governed by and construed in accordance with the
internal laws of the State of New York as applied to agreements between residents thereof to be
performed entirely within such State, without reference to that body of law relating to conflict of
laws or choice of law.
10. Severability; Headings. The invalidity or unenforceability of any term or
provision of this Note will not affect the validity or enforceability of any other term or
provision hereof. The headings in this Note are for convenience of reference only and will not
alter or otherwise affect the meaning of this Note.
11. Jurisdiction; Venue. Each of the undersigned hereby irrevocably submits to the
in personam jurisdiction of the state courts of the State of New York and of the
United States District Court that is located in New York, New York, for the purpose of any suit,
action or other proceeding arising out of or based upon this Note. EACH PARTY TO THIS NOTE HEREBY
WAIVES ITS RIGHT TO A JURY TRIAL WITH RESPECT TO ANY ACTION OR CLAIM ARISING OUT OF ANY DISPUTE IN
CONNECTION WITH THIS NOTE, ANY RIGHTS OR OBLIGATIONS HEREUNDER OR THEREUNDER OR THE PERFORMANCE OF
SUCH RIGHTS AND OBLIGATIONS.
12. Assignment. This Note may only be transferred by Holder upon surrender of the
original Note for registration of transfer, duly endorsed, or accompanied by a duly executed
written instrument of transfer in form satisfactory to the Company. Thereupon, a new Note for like
principal amount and interest will be issued by the Company to, and registered by the Company in
the name of, the transferee. Interest and principal are payable only to the registered holder of
the Note . The rights and obligations of the Company and the Holder shall be binding upon and
benefit the successors, assigns,
heirs, administrators and transferees of the parties. Without limiting the generality of the
foregoing, each Holder of this Note is entitled to the full benefits of this Note and may enforce
the provisions of the same and exercise the remedies provided hereby or thereby or otherwise
available with respect hereto or thereto.
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13. Loss/Affidavit. On receipt by the Company of an affidavit of an authorized
representative of Holder stating the circumstances of the loss, theft, destruction or mutilation of
this Note (and in the case of any such mutilation, on surrender and cancellation of such Note), the
Company, at its expense, will promptly execute and deliver, in lieu thereof, a new Note of like
tenor. If required by the Company, such Holder must provide indemnity sufficient in the reasonable
judgment of the Company to protect the Company from any loss which the Company may suffer if a
lost, stolen or destroyed Note is replaced.
14. Ipso Facto. All agreements herein made are expressly limited so that in no event
whatsoever, whether by reason of advancement of proceeds hereof, acceleration of maturity of the
unpaid balance hereof or otherwise, shall the amount paid or agreed to be paid to Holder for the
use of the money advanced or to be advanced hereunder exceed the maximum rate allowed under
applicable law (the “Maximum Rate”). If, from any circumstances whatsoever, the fulfillment of any
provision of this Note or any other agreement or instrument now or hereafter evidencing, securing
or in any way relating to the indebtedness evidenced hereby shall involve the payment of interest
in excess of the Maximum Rate, then, ipso facto, the obligation to pay interest
hereunder shall be reduced to the Maximum Rate; and if from any circumstance whatsoever, Holder
shall ever receive interest, the amount of which would exceed the amount collectible at the Maximum
Rate, such amount as would be excessive interest shall be applied to the reduction of the principal
balance remaining unpaid hereunder and not to the payment of interest. This provision shall
control every other provision in any and all other agreements and instruments existing or hereafter
arising between the Company and Holder with respect to the indebtedness evidenced hereby.
15. Entire Agreement. This Note, together with the Security Agreement and the
Amendment Agreement, constitute the entire understanding and agreement of the Company and the
holder of this Note with respect to the subject matter hereof and supersedes all prior
understandings and agreements with respect to such matters.
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IN WITNESS WHEREOF, the Company has executed this Note as of the date and year first above
written.
| COMPANY GLU MOBILE INC. |
||||||
| By: | /s/ L. Xxxxxxx Xxxxxxx | |||||
| Name: | L. Xxxxxxx Xxxxxxx | |||||
| Title: | President and CEO | |||||
[SIGNATURE PAGE TO EARNOUT NOTE]
