SUBORDINATED CONVERTIBLE PROMISSORY NOTE
Exhibit 10.8
THE INDEBTEDNESS EVIDENCED BY THIS INSTRUMENT IS SUBORDINATED TO THE PRIOR PAYMENT OF THE BANK DEBT
(AS DEFINED IN THE SUBORDINATION AGREEMENT HEREINAFTER REFERRED TO) PURSUANT TO, AND TO THE EXTENT
PROVIDED IN, THE SUBORDINATION AGREEMENT DATED DECEMBER ___, 2009, IN FAVOR OF WACHOVIA BANK,
NATIONAL ASSOCIATION.
| $ | Winston-Salem, North Carolina | December 30, 2009 | ||
FOR VALUE RECEIVED, the undersigned, PRIMO WATER CORPORATION, a Delaware corporation (the
“Maker”) promises to pay to , a (the “Holder”), the sum of
Dollars ($ ), or so much thereof as may from time to time hereafter be
outstanding hereunder, whichever is less, together with interest thereon, all on the terms and
conditions hereinafter provided.
1. Notes. This Note is one of subordinated convertible promissory notes
issued by Maker on the date hereof having an aggregate original principal amount of $
(each a “Note” and, collectively, the “Notes”). Notwithstanding any provision of this Note to the
contrary, the Notes shall be pari passu insofar as their priority or preference and relative rights
are concerned, and Maker shall not pay interest or principal on any of the Notes other than on a
pro rata basis (based on the aggregate principal amount outstanding under each Note on the date of
payment relative to the aggregate principal amount outstanding under all of the Notes on the date
of payment); provided, however, that the rights of the holders of the Notes (each
individually a “Note Holder” and, collectively, the “Note Holders”) with respect to optional
redemption by the Note Holders in Section 3(b) of the Notes or conversion by the Note Holders in
Section 4 of the Notes may be exercised independently by each Note Holder.
2. Interest Rate; Principal and Interest Payments.
(a) From the date hereof to the date this Note is paid or otherwise discharged, the unpaid
principal amount of this Note shall bear simple interest per annum at the rate of fourteen percent
(14%).
(b) Principal and accrued interest under this Note shall be payable as follows: (i) accrued
interest shall be payable on the first business day of each fiscal quarter of Maker beginning on
January 1, 2010, computed through the last calendar day of the preceding fiscal quarter, with a
final payment of all accrued interest to be payable on the date on which the entire principal
hereunder becomes payable; and (ii) subject to the prepayment rights in Section 3 below and the
conversion right of the Holder in Section 4 below, the entire principal hereunder shall be payable
in a single installment on March 31, 2011 (the “Maturity Date”).
(c) All payments of principal and interest under this Note shall be made in currency of the
United States and shall be made to Holder by wire transfer to an account designated by Holder or in
such other manner as Holder may designate to Maker in writing.
(d) All payments in connection with this Note shall be applied first to accrued interest, if
any, and then to unpaid principal.
(e) Upon the occurrence and during the continuance of an Event of Default (as defined below),
this Note shall bear interest at a rate per annum equal to two percent (2%) in excess of the rate
otherwise applicable.
3. Prepayments.
(a) This Note may be prepaid in full or in part at any time in amounts among all of the Notes
aggregating not less than $100,000.00 or, if less, the principal amount of the Notes outstanding,
such prepayments to be made on a pro rata basis among all Note Holders (based on the aggregate
principal amount outstanding under each Note on the date of payment relative to the aggregate
principal amount outstanding under all of the Notes on the date of payment); provided, that
Maker pays to Holder a prepayment premium equal to two percent (2%) of the principal amount of the
Note being redeemed at such time (the “Premium Percentage”), unless the Notes are redeemed in
connection with an initial public offering of Maker’s common stock, in which case no Premium
Percentage shall be owed to Holder. Any principal amount under this Note which is repaid may not
be re-borrowed.
(b) Upon (i) an initial public offering of Maker’s common stock resulting in net proceeds to
the Maker of at least $30,000,000 (a “Qualified IPO”), or (ii) the consummation by Maker of a
merger or consolidation, with or into another entity or other corporate reorganization in which
Maker is not the surviving entity, or (iii) the sale of all of the capital stock of Maker, or (iv)
the sale of all or substantially all of the assets of Maker prior to the payment in full of this
Note, Holder may elect to sell to Maker and Maker shall be required to purchase the Note in full by
payment of an amount equal to the unpaid principal balance hereof, plus, all unpaid
interest accrued thereon through the date of redemption, plus in the case of subparagraphs
(ii), (iii), and (iv) above the principal amount of the Note being redeemed multiplied by the
Premium Percentage.
4. Conversion.
(a) If a Qualified IPO has not occurred by the Maturity Date, then, at the option of the
Holder, all unpaid principal on this Note and all unpaid accrued interest shall be automatically
converted into the type, kind and character of securities (the “Securities”) issued or to be issued
in a Qualified Equity Financing (as defined below), with the same rights, preferences and
privileges as are received by other investors in the Qualified Equity Financing, and such
Securities shall be issued pursuant to and governed by the same agreements relating to the issuance
of the Securities in the Qualified Equity Financing, which agreements the Holder will evidence its
consent to by execution of appropriate documentation. If converted into Securities in the
Qualified Equity Financing, the Holder shall receive the number of Securities calculated by
dividing the amount of principal and accrued interest due under this Note by the price per share at
which Maker sells and issues such Securities pursuant to the Qualified Equity Financing. Maker
shall not issue fractional shares but any fractional share shall be rounded to the nearest whole
share with 0.5 shares rounded up to the nearest whole share. For purposes of this Note, a
“Qualified Equity Financing” shall mean Maker’s sale of shares of capital stock in one transaction
or a series of related transactions resulting in net proceeds of at least $5 million to Maker (not
including the conversion of the Notes) that occurs (i) within ninety (90) days prior to the
Maturity Date or (ii) at any time on or after the Maturity Date and prior to the payment in full of
this Note.
(b) Upon conversion of this Note pursuant to the election of the Holder as described in
Section 4(a), the applicable amount of outstanding principal and accrued interest of this Note
shall be converted without any further action by the Holder and whether or not this Note is
surrendered to Maker or its transfer agent. Maker shall not be obligated to issue certificates
evidencing the shares of the Securities issuable upon such conversion unless this Note is either
delivered to Maker or its transfer agent, or the Holder notifies Maker or its transfer agent that
this Note has been lost, stolen or destroyed
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and executes an agreement satisfactory to Maker to indemnify Maker from any loss incurred by
them in connection with this Note. Maker shall, as soon as practicable after such delivery, or
such agreement and indemnification, issue and deliver at such office to such Holder of this Note, a
certificate or certificates for the Securities to which the Holder shall be entitled. Such
conversion shall be deemed to have been made concurrently with the close of the Qualified Equity
Financing. The Person(s) (as defined below in Section 12(c)) entitled to receive Securities
issuable upon such conversion shall be treated for all purposes as the record holder or holders of
such securities on such date.
5. Subordination. This Note is hereby expressly subordinated, to the extent and in
the manner set forth in the Subordination Agreement dated as of the date hereof (the “Subordination
Agreement”) among Wachovia Bank, National Association, as senior lender (“Wachovia”), the
Collateral Agent (as defined in Section 6 below), Maker and the Note Holders, to all Bank Debt (as
defined in the Subordination Agreement).
6. Security Interest. The indebtedness, obligations and liabilities of Maker under
the Notes are secured by a security interest granted by Maker to Xxxx Xxxxxxxxxx, in his capacity
as collateral agent for the ratable benefit of all of the Note Holders (the “Collateral Agent”),
pursuant to a Security Agreement dated as of the date hereof among the Maker and the Collateral
Agent (the “Security Agreement”).
7. Warrant. In connection with the loan evidenced by this Note and as a condition to
making such loan, Maker shall issue to the Holder on the date hereof a warrant, substantially in
the form attached as Exhibit A hereto (the “Warrant”), to purchase shares of Maker’s common
stock having a value at the time of the Warrant’s issuance representing four percent (4%) of the
original principal amount of this Note (based upon a third party appraised valuation). The Maker
and the Holder acknowledge that under the regulations of the United States Department of Treasury,
the issuance of this Note and the Warrant for an aggregate, combined purchase price will result in
the creation of “original issue discount” on this Note equal to the value of the Warrant. After
taking into account all relevant factors (including the fact that no public market for the Warrant
currently exists, the general condition of the financial markets at this time, and all other
matters concerning the loan evidenced by this Note), the Maker and the Holder agree that the
original issue discount on this Note (i.e., the value of the Warrant) is four percent (4%) of the
original principal amount of this Note. Neither the Maker nor the Holder will take any position
for United States federal income tax purposes that is inconsistent with the foregoing sentence.
8. Covenants. For so long as any obligations of Maker under any Note remain
outstanding:
(a) The principal amount of the Bank Debt and any other indebtedness senior to or pari passu
with the Notes shall not exceed Fifteen Million Dollars ($15,000,000) in the aggregate; and
(b) Maker shall not pay or declare any dividends (other than stock dividends) or other
distribution or purchase, redeem or otherwise acquire any stock or other equity interests or pay or
acquire any debt subordinate to the obligations evidenced by the Notes, except the following:
(i) Any subsidiary of Maker may pay dividends to Maker or another subsidiary
wholly-owned by Maker.
(ii) If Maker is an S Corporation, it may distribute to its shareholders
during each calendar year an aggregate amount (including all dividends or
other payments) not exceeding the amount of federal income tax payable by
such shareholders in such year with respect to the taxable income of Maker,
assuming such income is taxed at the rate applicable to the highest bracket
of income (not
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to exceed 40% unless the Required Holders shall otherwise permit in
writing); provided that at the time of each such distribution, and
after giving effect thereto, each of the following conditions is met: (A)
no Event of Default exists, (B) Maker has capital sufficient to carry on its
business and transactions in which it is currently engaged and all business
and transactions in which it is about to engage, is able to pay its debts as
they mature, and has assets having a fair value greater than its
liabilities, at fair valuation, (C) such distribution is permitted under
applicable law, and (D) Maker has given the Note Holders at least ten (10)
days prior written notice prior to making such distribution;
provided that if the amount of any such dividends and other payments
to a shareholder exceeds the tax liability of said shareholder, said
shareholder shall promptly after the determination of the amount of such
excess make a contribution to capital of Maker in the amount of such excess.
(iii) Maker may redeem or repurchase stock from its employees, consultants,
directors, officers and service providers upon the termination of their
employment or services to Maker pursuant to options or rights granted Maker
pursuant to the terms of any equity incentive arrangement, equity
compensation plan, stock option agreement, restricted stock agreement,
employment agreement, consulting agreement, stock purchase plan, management
incentive plan or other agreement, arrangement or plan approved by the Board
of Directors of Maker in writing.
9. Events of Default. The occurrence or existence of any one of the following events
or conditions shall constitute an “Event of Default” under this Note:
(a) Maker shall fail to pay the principal of, or interest on, this Note when the same becomes
due and payable in accordance with the terms hereof and such amount remains unpaid for ten (10)
days;
(b) (i) Maker shall fail to observe or perform any other covenant or agreement on its part
contained in this Note or in the Security Agreement which failure continues for a period of thirty
(30) days after Maker’s receipt of written notice thereof from Holder or the Collateral Agent or
(ii) any representation or warranty made by Maker herein shall prove to have been untrue or
incorrect in any material respect when made;
(c) Maker makes a general assignment for the benefit of its creditors or applies to any
tribunal for the appointment of a trustee or receiver of a substantial part of its assets, or
commences any proceedings under any bankruptcy, reorganization, arrangement, insolvency,
readjustment of debts, dissolution or other liquidation law of any jurisdiction; or any such
application is filed, or any such proceedings are commenced against Maker and Maker indicates its
consent to such proceedings, or an order or decree is entered by a court of competent jurisdiction
appointing such trustee or receiver, or adjudicating Maker bankrupt or insolvent, or approving the
petition in any such proceedings, and such order or decree remains unstayed and in effect for sixty
(60) days;
(d) There is a default under that certain Loan and Security Agreement dated as of June 23,
2005, as amended by that certain First Amendment to Loan and Security Agreement among Maker,
certain of its affiliates, and Wachovia, dated as of April 26, 2006, by that certain Second
Amendment to Loan and Security Agreement dated as of April 30, 2007, by that certain Third
Amendment to Loan and Security Agreement dated as of June 24, 2008, by that certain Fourth
Amendment to Loan and Security Agreement dated as of January 7, 2009, and by that certain Fifth
Amendment to Loan and Security Agreement dated as of the date hereof, and as further amended or
modified from time to time (the “Loan and Security Agreement”), pursuant to which Wachovia
accelerated any Bank Debt; or
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(e) The occurrence of an “Event of Default” under (and as defined in) any other Note.
10. Remedies.
(a) Subject to the terms and conditions of the Subordination Agreement, if an Event of Default
occurs and is continuing, the Note Holders holding at least a majority of the aggregate outstanding
principal balance of the Notes (the “Required Note Holders”) may, by notice in writing to Maker,
declare the entire unpaid principal of all of the Notes to be due and payable immediately (except
that the entire unpaid principal of all of the Notes shall automatically become due and payable
immediately upon the occurrence of an Event of Default described in Sections 9(a) or 9(c)), and
upon any such declaration (or upon the occurrence of an Event of Default described in Sections 9(a)
or 9(c)) the principal and unpaid interest on all of the Notes (including this Note) shall become
and be immediately due and payable, and the Collateral Agent may thereupon proceed to protect and
enforce the rights of the Note Holders either by suit in equity or by action at law or by other
appropriate proceedings, whether for specific performance (to the extent permitted by law) of any
covenant or agreement contained herein or in aid of the exercise of any power granted herein, or
proceed to enforce the payment of the Notes or to enforce any other legal or equitable right of
Note Holders, including, without limitation, to exercise the Collateral Agent’s rights under the
Security Agreement.
(b) In the event this Note is placed in the hands of an attorney for collection or for
enforcement, or in the event that the Collateral Agent or any Note Holder incurs any costs incident
to the collection of any indebtedness evidenced hereby, Maker agrees to pay all reasonable
attorneys’ fees and expenses, all court and other costs and the reasonable costs of any other
collection efforts. Forbearance to exercise the remedies set forth herein with respect to any
failure or breach of Maker shall not constitute a waiver by the Collateral Agent or any Note Holder
of any of such remedies.
11. Representations and Warranties of Maker. Maker hereby represents and warrants to
Holder, as of the date hereof, as follows:
(a) Valid Existence and Power. Maker is a corporation duly organized, validly
existing and in good standing under the laws of Delaware and is duly qualified or licensed to
transact business in all places where the failure to be so qualified would have a material adverse
effect on the business, assets (including intangible assets), liabilities, financial condition,
property or results of operations of Maker (“Material Adverse Effect”) on Maker. Borrower has the
power to make and perform this Note and the Security Agreement, which when executed will constitute
the legal, valid and binding obligations of Borrower, enforceable in accordance with their
respective terms, subject only to bankruptcy and similar laws affecting creditors’ rights
generally.
(b) Authority. The execution, delivery and performance by Maker of this Note and the
Security Agreement have been duly authorized by all necessary actions of Maker, and do not and will
not violate any provision of law or regulation, or any writ, order or decree of any court or
governmental or regulatory authority or agency or any provision of the governing instruments of
Maker, and do not and will not, with the passage of time or the giving of notice, result in a
breach of, or constitute a default or require any consent under, or result in the creation of any
lien upon any property or assets of Maker (except as set forth in this Note and the Security
Agreement) pursuant to, any law, regulation, instrument or agreement to which Maker is a party or
by which Maker or its properties may be subject, bound or affected, other than the consent of
Wachovia under the Loan and Security Agreement.
(c) Financial Condition. Other than as disclosed on Schedule 11(c) attached
hereto or in the audited financial statements of Maker for the fiscal year ended December 31, 2008
or its unaudited financial statements (including balance sheet, income statement and statement of
cash flows) as of
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September 30, 2009 and for the nine-month period ended September 30, 2009 (collectively, the
“Financial Statements”), neither Maker nor any of its subsidiaries has any direct or contingent
obligations or liabilities (including any guarantees or leases) or any material unrealized or
anticipated losses from any commitments of such Person. The Financial Statements have been
prepared in accordance with generally accepted accounting principles and fairly present the
financial condition of Maker or its subsidiaries, as the case may be, as of the date thereof.
Maker is not aware of any material adverse fact (other than facts which are generally available to
the public and not particular to Maker, such as general economic trends) concerning the conditions
or future prospects of Maker or any of its subsidiaries that has not been fully disclosed to
Holder, including any adverse change in the operations or financial condition of Maker since the
date of the Financial Statements. Maker has, and after the closing of the transactions
contemplated by the Notes, will have capital sufficient to carry on its business and transactions
in which it is currently engaged and all business and transactions in which it is about to engage,
is able to pay its debts as they mature, and has assets having a fair value greater than its
liabilities, at fair valuation.
(d) Litigation. There are no suits or proceedings pending, or to the knowledge of
Maker threatened, before any court or by or before any governmental or regulatory authority,
commission, bureau or agency or public regulatory body against or affecting Maker or its assets,
which if adversely determined would have a Material Adverse Effect on Maker.
(e) Governmental Filings. Assuming the accuracy of the representations made
by Holder in Section 12 of this Note, no registration, qualification, designation or filing with
any federal, state or local governmental authority is required on the part of Maker in connection
with the consummation of the transactions contemplated by his Note, except for filings pursuant to
Regulation D of the Securities Act of 1933, as amended, and applicable state securities laws.
12. Representations and Warranties of the Holder. The Holder, by acceptance of this
Note, represents and warrants as to itself only and not as to any other Note Holder as follows:
(i) the Holder has the power to make and perform its obligations under this Note, and when fully
executed, this Note will constitute the legal, valid and binding obligations of the Holder,
enforceable in accordance with its terms, subject only to bankruptcy and similar laws affecting
creditors’ rights generally; (ii) the execution, delivery and performance of this Note by the
Holder have been duly authorized by all necessary actions, and do not and will not violate any
provision of law or regulation; (iii) the Note and Warrant are being or will be acquired by the
Holder for its own account, not as a nominee or agent, and not with the view to, or for resale in
connection with, any distribution thereof in any transaction which would be in violation of state
or federal securities laws; (iv) the Holder is an “accredited investor” as defined in Rule 501(a)
of Regulation D promulgated under the Securities Act of 1933, as amended (the “Securities Act”);
(v) the Holder understands that (A) the Note and the Warrant constitute “restricted securities”
under the Securities Act, (B) the offer and sale of the Note and the Warrant is not registered
under the Securities Act or under any “blue sky” laws in reliance upon certain exemptions from such
registration and that Maker is relying on the representations made herein by the Holder in its
determination of whether such specific exemptions are available, and (C) the Note and the Warrant
may not be transferred except pursuant to an effective registration statement under the Securities
Act, or under an exemption from such registration available under the Securities Act and under
applicable “blue sky” laws or in a transaction exempt from such registration; and (vi) the Holder
has made its own investment decision with respect to the purchase of the Note and the Warrant and
has not relied on any other Note Holder in making this decision.
13. Notices; Miscellaneous.
(a) All notices, requests, consents and other communications required or permitted under this
Note shall be in writing and shall be deemed effectively given upon personal delivery, or upon
confirmed
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delivery by facsimile, or on the next day (or, for international deliveries, three days) following
mailing by a reputable express air carrier, addressed to the address specified below:
(i)
|
If to the Holder, to: | |
(ii)
|
If to Maker, to: | |
| Primo Water Corporation 000 Xxxxxxxxx Xxxxx Xxxxx Xxxxxxx-Xxxxx, Xxxxx Xxxxxxxx 00000 Fax No. Attn: |
Maker, Holder or any other Holder may designate a different address by notice given in accordance
with the foregoing.
(b) Without waiving notices contemplated by Section 9(b) hereof, Maker hereby waives protest,
presentment, notice of dishonor, notice of acceleration of maturity and notice of enforcement of
the Collateral Agent or any Note Holder’s rights against any collateral securing this Note and
agrees to continue to remain bound for the payment of principal, interest and all other sums due
under this Note, notwithstanding any change or changes by way of any extension or extensions of
time for the payment of principal and interest or any substitution, exchange or release of any
collateral securing this Note, with or without consideration; and Maker waives all and every kind
of notice of such change or changes and agrees that the same may be made without notice or consent
of Maker. Maker further agrees that it will not be necessary for the Collateral Agent or any Note
Holder, in order to enforce payment of this Note, first to enforce its rights against any
collateral securing this Note.
(c) The terms of this Note shall apply to, be binding upon and inure to the benefit of Maker
and the Holder and their respective successors and permitted assigns; provided, however, that
neither the Maker nor Holder may assign this Note or any of their respective rights or obligations
hereunder without the prior written consent of the other party, except that Holder may assign this
Note in its entirety to one of Holder’s Affiliates (as defined below), so long as (i) Holder
provides advance notice of such assignment to Wachovia and Maker and (ii) such assignee executes
and delivers to Wachovia a joinder to the Subordination Agreement, agreeing to be bound by the
terms and conditions set forth therein. As an additional condition to any assignment of this Note
by the Holder, the assignee must agree to be bound by the terms of the Agency Agreement dated as of
the date hereof among the Note Holders and the Collateral Agent (the “Agency Agreement”) and
execute and deliver a counterpart of the Agency Agreement to the Collateral Agent. Any assignment
of this Note in violation of this Section 13(c) shall be void and of no force or effect.
Affiliate” of a Person (as defined below) means (a) any Person directly or indirectly
owning twenty-five percent (25%) or more of the voting stock or equity interests of such named
Person or of which the named Person owns twenty-five percent (25%) or more of such voting stock or
equity interests; (b) any Person controlling, controlled by or under common control with such named
Person; (c) any officer, director or employee of such named Person or any Affiliate of the named
Person; and (d) any family member of the named Person or any Affiliate of such named Person.
“Person” means any natural person, corporation, unincorporated organization, trust,
joint-stock company, joint venture, association, company, limited or general partnership, limited
liability company, any government or any agency or political subdivision of any government, or any
other entity or organization.
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(d) Any provision of this Note may be amended, waived or modified only upon the written
consent of Maker and the Note Holders holding at least sixty percent (60%) of the aggregate
outstanding principal balance of the Notes; provided, however, that, notwithstanding the foregoing,
without the prior written consent of each Note Holder affected thereby, an amendment, waiver,
supplement or modification of this Note or the Notes or any consent to departure from a term or
provision hereof or thereof may not: (i) reduce the rate or extend the time for payment of
principal or interest on any Note; (ii) reduce the principal amount of any Note; (iii) make a Note
payable in money other than that stated in such Note; (iv) reduce the amount or extend the time of
payment of fees or other compensation payable to the holders of the Notes; (v) treat any Note in a
manner different from the other Notes; or (vi) modify, amend or delete Section 4 herein.
(e) This Note shall be governed by, and construed in accordance with, the laws of the State of
North Carolina, without reference to the conflicts or choice of law principles thereof. Maker and
Holder hereby irrevocably consent to the personal jurisdiction of any state or federal courts
located in North Carolina, in any action, claim or other proceeding arising out of any dispute in
connection with this Note, any rights or obligations hereunder or the performance of such rights
and obligations. Anything herein to the contrary notwithstanding, the obligations of Maker under
this Note shall be subject to the limitation that payments of interest shall not be required to the
extent that receipt of any such payment by the Holder would be contrary to provisions of law
applicable to the Holder limiting the maximum rate of interest that may be charged to or collected
by the Holder. If any provision of this Note shall be held to be prohibited by or invalid under
applicable law, such provision shall be ineffective only to the extent of such prohibition or
invalidity, without invalidating the remainder of such provision or any remaining provisions of
this Note.
(f) All of the representations and warranties made herein shall survive the closing of the
transactions contemplated by this Note and shall not be waived by the execution and delivery of
this Note.
(g) Maker will not, by amendment of its certificate of incorporation or bylaws as in effect on
the date hereof, or through reorganization, consolidation, merger, dissolution, issue or sale of
securities, sale of assets or any other voluntary action, willfully avoid or seek to avoid the
observance or performance of any of the terms of this Note, but will at all times in good faith
assist in the carrying out of all such terms and in the taking of all such action as may be
necessary or appropriate in order to protect the rights of the Holder under this Note against
wrongful impairment.
[The next page is the signature page]
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[Signature Page to Subordinated Promissory Note]
This Note has been executed by the undersigned as of the date first above written.
| PRIMO WATER CORPORATION (SEAL) |
||||
| By: | ||||
| Name: | Xxxx Xxxxxxxxx | |||
| Its: CFO | ||||
| Accepted and agreed to as of the date first above written: | ||||
By: |
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| Name: | ||||
Title: |
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