EXHIBIT 4.1
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED, OR ANY APPLICABLE STATE SECURITIES LAWS AND MAY NOT BE SOLD OR
TRANSFERRED WITHOUT COMPLIANCE WITH THE REGISTRATION OR QUALIFICATION PROVISIONS
OF APPLICABLE FEDERAL AND STATE SECURITIES LAWS OR AN OPINION OF COUNSEL
REASONABLY SATISFACTORY TO THE COMPANY OR ITS SUCCESSOR THAT SUCH REGISTRATION
IS NOT REQUIRED.
FRONT PORCH DIGITAL INC.
8% CONVERTIBLE NOTE DUE SEPTEMBER 30, 2004
Principal Amount: $______ _______, 2003
FRONT PORCH DIGITAL INC., a Nevada corporation (the "Company"), for value
received, hereby promises to pay to _____________, or its assigns ("Holder"), on
September 30, 2004, the principal amount of ___________________ Dollars
($_______) (or so much thereof as shall not have been prepaid or surrendered for
conversion) in such coin or currency of the United States of America as at the
time of payment shall be legal tender for the payment of public and private
debts, together with interest (computed on the basis of 360-day year of twelve
30-day months) on the unpaid portion of the principal amount hereof at the
annual rate of eight percent (8%) from the date hereof until the date such
unpaid portion of such principal amount shall have become due and payable, or
following an Event of Default, at such other rate as may be required by the Note
Purchase Agreement.
This Convertible Note is one of the Convertible Notes referred to and
defined in the Note Purchase Agreement. The holder of this Convertible Note is
entitled to all the benefits and rights, and subject to all of the obligations,
of a Purchaser under the Note Purchase Agreement, including, without limitation,
the covenants contained in Article VII and VIII thereof, to which reference is
hereby made for a statement of the terms and conditions under which the entire
unpaid balance of this Convertible Note, or any portion thereof, shall become
immediately due and payable.
Upon any payment of the principal of this Convertible Note, whether at
maturity or earlier prepayment, the Company shall issue to the Holder Warrants
(as defined in the Note Purchase Agreement) at the times and in the manner set
forth in the Note Purchase Agreement.
Section 1. DEFINITIONS.
Section 1.01. TERMS DEFINED. The terms defined in this Section 1.01
(except as herein otherwise expressly provided or unless the context otherwise
requires) for all purposes of this Convertible Note shall have the respective
meanings specified in this Section 1.01. Capitalized terms used herein and not
otherwise defined shall have the meanings set forth in the Note Purchase
Agreement.
COMMON STOCK. The term "Common Stock" means shares of the Company's
Common Stock, par value $.001 per share.
COMPANY. The term "Company" means FRONT PORCH DIGITAL INC., a Nevada
corporation, and any successor corporation to the Company (including the
corporation surviving any subsequent merger).
CURRENT CONVERSION PRICE. The term "Current Conversion Price" means
the Conversion Price as most recently adjusted pursuant to Section 3.06.
EVENT OF DEFAULT. The term "Event of Default" means any event
specified in Section 9.1 of the Note Purchase Agreement, continued for the
period of time, if any, and after the giving of notice, if any, therein
designated.
MATURITY. The term "Maturity" when used with respect to this
Convertible Note means the date on which the principal (and premium, if any) of
this Convertible Note becomes due and payable as herein provided, whether at (a)
September 30, 2004, (b) upon declaration of acceleration or (c) otherwise.
NOTE PURCHASE AGREEMENT. The term "Note Purchase Agreement" means the
Convertible Note Purchase Agreement dated as of April 1, 2003 among the Company
and the Purchasers of Convertible Notes named therein, as amended or
supplemented from time to time in accordance with the terms thereof.
Section 2. REMEDIES.
Section 2.01. REMEDIES. In case any one or more Events of Default
shall have occurred and be continuing, the Holder of this Convertible Note may
proceed to protect and enforce its rights in the manner set forth in, and
subject to the terms and conditions of, Article IX of the Note Purchase
Agreement.
Section 2.02. REMEDIES CUMULATIVE. No remedy herein conferred upon the
Holder of this Convertible Note is intended to be exclusive of any other remedy
and each and every such remedy shall be cumulative and shall be in addition to
every other remedy given hereunder or now or hereafter existing at law or in
equity or by statute or otherwise.
Section 2.03. ENFORCEMENT. If there shall be any Event of Default
under this Convertible Note and this Convertible Note shall be placed in the
hands of an attorney for collection, or shall be collected through any court,
including any bankruptcy court, the Company promises to pay to the order of the
Holder hereof the Holder's reasonable attorneys' fees and court costs incurred
in collecting or attempting to collect or securing or attempting to secure this
Convertible Note or enforcing the holder's rights with respect to any collateral
securing this Convertible Note, to the extent allowed by the laws of the State
of New York or any state in which any collateral for this Note shall be
situated.
Section 3. CONVERSION.
Section 3.01. RIGHT OF CONVERSION; CONVERSION PRICE. Subject to and
upon compliance with the provisions of this Section 3 and Section 3.1 of the
Note Purchase Agreement, the Holder shall have the right, at his option, at any
time during usual business hours to convert all or a portion of the outstanding
principal amount of this Convertible Note into fully paid and nonassessable
shares of Common Stock at the rate of $0.042 of principal for each share of
Common Stock (the "Conversion Price"), which price per share shall be payable by
surrender of this Convertible Note.
Section 3.02 MANNER OF EXERCISE.
(a) In order to exercise the conversion right, the Holder
of this Convertible Note shall surrender this Convertible Note at the office of
the Company, accompanied by written notice to the Company stating (i) that the
Holder elects to convert the outstanding principal amount this Convertible Note
or, if less than the entire principal amount of this Convertible Note is to be
converted, the portion thereof (a multiple of $1,000) to be converted, and (ii)
the name or names (with addresses) in which the certificate or certificates for
shares of Common Stock issuable on such conversion shall be issued. Convertible
Notes surrendered for conversion shall be accompanied by proper assignment
thereof to the Company or in blank for transfer if the shares are to be issued
in a name other than that of the Holder.
(b) In the event this Convertible Note is converted in part
only, upon such conversion the Company shall execute and deliver to the Holder,
at the expense of the Company, a new Convertible Note in principal amount equal
to the unconverted portion of this Convertible Note.
Section 3.03. ISSUANCE OF SHARES OF COMMON STOCK ON CONVERSION.
(a) As promptly as practicable after the receipt of such
notice and the surrender of this Convertible Note as aforesaid, the Company
shall issue, at its expense, and shall deliver to the Holder, or on his written
order, at the aforesaid office of the Company (i) a certificate or certificates
for the number of full shares of Common Stock issuable upon the conversion of
this Convertible Note (or specified portion thereof), and (ii) a certificate or
certificates for any fractional shares of Common Stock issuable upon conversion
of this Convertible Note (or specified portion thereof) or, at the Company's
option, cash in lieu of scrip for any fraction of a share to which the Holder is
entitled upon conversion as provided in Section 3.05.
(b) Such conversion shall be deemed to have been effected
immediately prior to the close of business on the date ("Conversion Date") on
which the Company shall have received both such notice and the surrendered
Convertible Note as aforesaid, and at such time the rights of the Holder of this
Convertible Note shall cease and the Person or Persons in whose name or names
any certificate or certificates for shares of Common Stock shall be issuable
upon such conversion shall be deemed to have become the holder or the Holder of
record of the shares represented thereby.
Section 3.04. NO ADJUSTMENTS FOR INTEREST OR DIVIDENDS. No payment or
adjustment shall be made by or on behalf of the Company on account of any
interest accrued on this Convertible Note surrendered for conversion or on
account of any dividends on the shares of Common Stock issued upon such
conversion which were declared for payment to the Holder of shares of Common
Stock of record as of a date prior to the Conversion Date. All payments of
accrued interest on this Convertible Note shall be made in cash or additional
stock at the Conversion Price, at the Company's option.
Section 3.05. FRACTIONAL SHARES. The Company, at its option, may issue
fractional shares of Common Stock upon any conversion of this Convertible Note
or, in lieu of any fraction of a share of Common Stock to which any Holder would
otherwise be entitled upon conversion of this Convertible Note (or specified
portions thereof), the Company may pay a cash adjustment for such fraction in an
amount equal to same fraction of the Conversion Price per share.
Section 3.06. ADJUSTMENT OF CONVERSION PRICE. The Conversion Price
shall be adjusted as set forth in this section.
(a) If the Company shall issue or sell any shares of Common
Stock at a price which is less than the Current Conversion Price, then the
Conversion Price in effect immediately prior thereto shall be adjusted
immediately so that the Conversion Price thereafter shall equal the price per
share of Common Stock at which such shares of Common Stock described in this
Section 3.06(a) were issued or sold. The provisions of this paragraph (a) shall
not apply to any issuance of additional shares of Common Stock for which an
adjustment is provided under Section 3.06(b), (c) or (d).
(b) In the event that the Company shall make any
distribution of its assets upon or with respect to its shares of Common Stock,
as a liquidating or partial liquidating dividend, or other than as a dividend
payable out of earnings or any surplus legally available for dividends under the
laws of the state of incorporation of the Company, the Holder of this
Convertible Note, upon the exercise of his right to convert after the record
date for such distribution or, in the absence of a record date, after the date
of such distribution, shall receive, in addition to the shares subscribed for,
the amount of such assets (or, at the option of the Company, a sum equal to the
value thereof at the time of distribution as determined by the Board of
Directors in its sole discretion) which would have been distributed to the
Holder if he had exercised his right to convert immediately prior to the record
date for such distribution or, in the absence of a record date, immediately
prior to the date of such distribution.
(c) In case at any time the Company shall subdivide its
outstanding shares of Common Stock into a greater number of shares, the Current
Conversion Price in effect immediately prior to such subdivision shall be
proportionately reduced and conversely, in case the outstanding shares of Common
Stock of the Company shall be combined into a smaller number of shares, the
Current Conversion Price in effect immediately prior to such combination shall
be proportionately increased.
(d) If any capital reorganization or reclassification of
the capital stock of the Company, or consolidation or merger of the Company with
another corporation, or the sale, transfer or lease of all or substantially all
of its assets to another corporation, shall be effected in such a way that the
holder of shares of Common Stock shall be entitled to receive shares, securities
or assets with respect to or in exchange for shares of Common Stock, then, as a
condition of such reorganization, reclassification, consolidation, merger or
sale, the Company or such successor or purchasing corporation, as the case may
be, shall execute an amendment to this Convertible Note providing that the
Holder of this Convertible Note shall have the right thereafter and until the
expiration of the period of convertibility to convert this Convertible Note into
the kind and amount of shares, securities or assets receivable upon such
reorganization, reclassification, consolidation, merger or sale by a holder of
the number of shares of Common Stock into which this Convertible Note might have
been converted immediately prior to such reorganization, reclassification,
consolidation, merger or sale, subject to adjustments which shall be as nearly
equivalent as may be practicable to the adjustments provided for in this Section
3.
(e) Upon such adjustment of the Conversion Price pursuant
to the provisions of this Section 3.06, the number of shares issuable upon
conversion of this Convertible Note shall be adjusted to the nearest full amount
by multiplying a number equal to the Conversion Price in effect immediately
prior to such adjustment by the number of shares of Common Stock issuable upon
exercise of this Convertible Note immediately prior to such adjustment and
dividing the product so obtained by the adjusted Conversion Price.
Section 3.07. COVENANT TO RESERVE SHARES FOR CONVERSION. The Company
covenants that it will at all times reserve and keep available out of its
authorized shares of
Common Stock, such number of shares of Common Stock as shall then be deliverable
upon the conversion of this Convertible Note. All shares of Common Stock which
shall be deliverable shall be duly and validly issued and fully paid and
nonassessable.
Section 3.08. NOTICE OF CHANGE OF CONVERSION PRICE. Whenever the
Conversion Price is adjusted, as herein provided, the Company shall promptly
send to the Holder a certificate of a firm of independent public accountants
(who may be the accountants regularly employed by the Company) selected by the
Board of Directors setting forth the Conversion Price after such adjustment and
setting forth a brief statement of the facts requiring such adjustment. Such
certificate shall be conclusive evidence of the correctness of such adjustment.
Section 4. MISCELLANEOUS.
Section 4.01. OPTIONAL PREPAYMENTS. The Company shall have the right,
at any time and from time to time to prepay all or any part of the outstanding
principal amount of this Convertible Note subject to the provisions of the Note
Purchase Agreement without penalty or premium.
Section 4.02. GOVERNING LAW. This Convertible Note shall be construed
in accordance with the laws of the State of New York applicable to contracts
entered into and to be performed wholly within said State.
Section 4.03. SUCCESSORS AND ASSIGNS. All the covenants, stipulations,
promises and agreements in this Convertible Note contained by or on behalf of
the Company shall bind its successors and assigns, whether so expressed or not.
Section 4.04. COURSE OF DEALING; NO WAIVER. No course of dealing
between the Company and the Holder shall operate as a waiver of any right of the
Holder and no delay on the part of the Holder in exercising any right hereunder
shall so operate.
Section 4.05. WAIVER OF COMPLIANCE. Any term, covenant, agreement or
condition hereof may be amended, or compliance therewith may be waived (either
generally or in a particular instance and either retroactively or
prospectively), if the Company shall have obtained the agreement or consent in
writing of the Holder.
Section 4.06. OTHER PROVISIONS. The Company waives demand,
presentment, protest, notice of dishonor and any other form of notice, that may
be required to hold the Company liable on this Note.
Section 4.07. NOTICES. All notices, demands and other communications
hereunder shall be given, and shall be deemed to have been duly given, if
delivered as set forth in the Note Purchase Agreement.
IN WITNESS WHEREOF, the undersigned has caused this Convertible Note to be
signed in its corporate name by one of its officers thereunto duly authorized,
and to be dated as of the date first written above.
FRONT PORCH DIGITAL INC.
By:
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Name: Xxxxxx Xxxxx
Title: Chief Executive Officer
