Contract
Exhibit 10.02
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, Beijing Zhangzhong MIG Information Technology
Co., Ltd., a domestic limited liability company organized under the laws of the PRC (the
“Company”), Glu Mobile Inc., a Delaware corporation (“Parent”) , 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 Parent
pursuant to that certain Amended and Restated Loan and Security Agreement dated as of December 29,
2008 among Parent, certain affiliates of Parent, 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.
SECURED PROMISSORY NOTE
| $2,500.000 | December 29, 2008 |
1. Obligation. Beijing Zhangzhong MIG Information Technology Co., Ltd., a domestic
limited liability company organized under the laws of the PRC (the “Company”), hereby promises to
pay to Wang Bin (the “Holder”) the principal sum equal to an amount in lawful currency of the PRC
having a value of $2,500,000 (calculated as set forth below), in installments on the payment dates
(each such date, a “Payment Date”) set forth in the table below (and in the amount opposite the
applicable payment date), at such place as Holder may direct. Simple interest on such principal
amount shall begin to accrue on April 1, 2009 on the then-outstanding principal amount, at a rate
of seven percent (7%) per annum, compounded annually. All payments on this Note shall be paid in
lawful money of the PRC. 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) | |
| March 31, 2010 | $312,500 | |
| June 30, 2010 | $312,500 | |
| September 30, 2010 | $937,500 | |
| December 31, 2010 | $937,500 |
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Each payment set forth in the table above, and each payment of accrued interest that is
payable on each Payment Date, shall paid in lawful currency of the PRC having a value equal to the
U.S. dollar amount set forth in the table above plus the U.S. dollar amount of accrued interest
thereon, multiplied by the prevailing exchange rate published on
xxxx://xxx.xxxxx.xxx/xxxxxxx/xxxxxxx for the last business day prior to the applicable Payment Date
(or if such rate is not then available on such, at prevailing rates in New York City at the close
of business on the last business day prior to the date of such payment).
Notwithstanding the above, each payment set forth in the table above is contingent upon
Holder’s not ceasing to continuously provide services to the Company or an affiliate of the
Company between the date hereof and March 31, 2009 (other than as a result of a Termination Without
Cause, as defined below, or death or disability). In addition, if Holder continuously provides
services to the Company or an affiliate of the Company between the date hereof and March 31, 2009
but ceases to continuously provide such services between April 1, 2009 and June 30, 2009 (other
than as a result of a Termination Without Cause, as defined below, or death or disability), the
Holder shall only be entitled to receive an amount having a value of $312,500 (determined as
described above) plus accrued but unpaid interest accruing on the entire unpaid principal amount of
this Note on each Payment Date after the date on which he ceases to provide such services.
Notwithstanding the foregoing, in the case of a Termination Without Cause, as defined below, the
entire remaining principal amount and all accrued but unpaid interest thereon shall become due and
payable within 30 days of the time of such Termination Without Cause, without reduction pursuant to
the preceding two sentences.
“Termination Without Cause” means a termination by Parent or a subsidiary of Parent of
Holder’s employment with the Parent or a subsidiary of Parent for any reason other than the
following: (i) Holder materially breaches the rules and regulations of Parent or the subsidiary of
Parent to which Holder is employed; (ii) Holder seriously neglects Holder’s duty or engages in
malpractice for selfish ends, causing substantial harm to the interests of Parent or a subsidiary
of Parent; (iii) Holder simultaneously establishes an employment relationship with another employer
that materially affects the completion of working tasks with Parent or the subsidiary of Parent to
which Holder is employed, and Holder refuses to rectify the matter after the same is brought to
his/her attention by Parent or the subsidiary of Parent to which Holder is employed; (iv) the
employment contract between Holder and Parent or the subsidiary of Parent to which Holder is
employed is invalid because Holder uses deception or coercion, or takes advantage of the
difficulties of Parent or the subsidiary of Parent to which Holder is employed to conclude or
change an employment contract that is contrary to the true intention of Parent or the subsidiary of
Parent to which Holder is employed; or (v) Holder has been found guilty of crime in accordance with
the law.
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. Borrower 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 the
repayment of accrued interest until all then outstanding accrued interest has been paid, and then
shall be applied 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
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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, as defined
below, or the Security Agreement, as defined below, 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.
For purposes of this Note, the term “Amendment Agreement” shall mean that certain First
Amendment to Agreement and Plan of Merger, dated December 29, 2008, by and
among Glu Mobile, Inc. (“Parent”), Awaken (Beijing) Communications Technology Co. Ltd., a wholly
foreign-owned enterprise organized under the laws of the PRC, the Company, Beijing Qinwang
Technology Co. Ltd., a domestic limited liability company organized under the laws of the PRC, Xxxx
Xxx, as the representative of (and on behalf of each of) the former shareholders of Awaken Limited,
a business company with limited liability incorporated under the laws of the British Virgin Islands
(“Awaken”), and each of the former shareholders of Awaken party hereto.
4. Guaranty and Security Interest. The performance of the Company of its obligations
under this Note is guaranteed pursuant to a Guaranty entered into by Glu Mobile, Inc, (“Parent”),
the Holder and Xxxx Xxx, dated of even date herewith (the “Guaranty”), which Guaranty is secured by
security interests granted pursuant to a Security Agreement entered into by Parent, the Secured
Parties
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named therein and Xxxx Xxx, as Collateral Agent, dated of even date herewith (the “Security
Agreement”).
5. Tax Withholding.
(a) The parties hereto intend that payments by the Company under this Note will be treated as
compensation for purposes of Chinese individual income tax and payroll tax. 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 any representations or undertakings regarding the tax treatment of any aspect of the Note.
(c) Holder acknowledges and agrees that any amounts payable by the Company in respect of the
Notes (including any interest) shall be reduced by any withholding tax that may be required under
applicable laws and Holder authorizes the Company and/or any affiliate of the Company to satisfy
the obligations with regard to all 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.
7. Waiver and Amendment. This Note is issued pursuant to that certain Amendment to
Employment Agreement, dated of even date herewith, by and between the Company and the Holder (as so
amended, the “Employment Agreement”). This Note, as well as 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, shall be deemed
to rank pari passu in seniority and right to payment to each other. Any provision of the Notes may
be amended or modified only by a writing signed by both the Company and the Holder. 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.
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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 not be assigned or transferred without the prior
written consent of the Company. Upon any such assignment or transfer and such consent, 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.
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.
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13. Entire Agreement. This Note, together with the Security Agreement, the Guaranty,
the the Employment 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 BEIJING ZHANGZHONG MIG INFORMATION TECHNOLOGY CO. LTD. |
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| By: | /s/ [signature is in chinese text] | |||
| Name: | [chinese text] | |||
| Title: | ||||
