THIS NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933 (THE "ACT")
OR ANY APPLICABLE STATE SECURITIES LAWS. IT MAY NOT BE SOLD, OFFERED FOR SALE,
PLEDGED OR HYPOTHECATED IN THE ABSENCE OF A REGISTRATION STATEMENT IN EFFECT
WITH RESPECT TO THE SECURITIES UNDER SUCH ACT OR AN OPINION OF COUNSEL
SATISFACTORY TO THE COMPANY THAT SUCH REGISTRATION IS NOT REQUIRED.
CONVERTIBLE NOTE
$500,000 King of Prussia, Pennsylvania
FOR VALUE RECEIVED, the undersigned, SEDONA CORPORATION, a Pennsylvania
corporation ("Maker"), promises to pay to ACXIOM CORPORATION, a Delaware
corporation ("Holder"), with its principal place of business at 0 Xxxxxxxxxxx
Xxx, Xxxxxx Xxxx, XX 00000, the principal sum of Five Hundred Thousand and
no/100 dollars ($500,000.00), together with interest thereon at the rate of
eight percent (8%) per annum from the date hereof until the earlier of Maturity
or the date upon which the unpaid balance shall be paid in full (the or this
"Note").
1. Definitions. The following definitions are applicable to the words,
phrases or terms used in this Note.
(a) The term "Average Daily Price" shall mean the average of the
high and low sales price of a share of the Maker's Common
Stock as reported by the Principal Market.
(b) The term "Common Stock" shall mean the Maker's common stock,
par value $0.001 per share.
(c) The term "Holder" shall mean and include all successors and
assigns of any owner or holder of this Note.
(d) The term "Maker" shall mean and include all makers, co-makers
and other parties signing on the face of this Note and their
successors and assigns, and the use of the plural number shall
include the singular, and vice versa.
(e) The term "Maturity" shall mean the date on which this Note
shall be due and payable in full, which date shall be April 1,
2002.
(f) The term "Principal Market" shall mean the American Stock
Exchange, the New York Stock Exchange, the Nasdaq National
Market, the Nasdaq SmallCap Market or the OTC Bulletin Board,
whichever is at the time the principal trading exchange or
market for the Common Stock, based upon share volume.
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2. Terms of Payment. The Note shall be paid in full, as to principal
and any unpaid interest, on or before Maturity. Unless otherwise designated in a
writing, mailed or delivered to Maker, the place for payment of the indebtedness
evidenced by this Note shall be the Holder's principal place of business as
noted above. Payments received on this Note shall be applied first to accrued
interest, and the balance to principal.
4. Events of Default. The following shall constitute an Event of
Default:
(a) In the event Maker shall fail (i) to pay any sums due hereunder
when due, or (ii) to observe or perform any term, condition, covenant,
representation or warranty set forth herein, when due or required, or within any
period of time permitted thereunder for cure of any such default or
non-performance.
(b) In the event Maker shall fail to pay any invoice or other sum
which may be due and payable to Holder, when due or required, according to the
terms thereunder unless prior written waiver has been granted to Maker by
Xxxxxx.
5. Acceleration of Maturity. Upon the happening of any Event of
Default, the unpaid principal and interest due Holder shall, at the option of
the Holder, become immediately due and payable.
6. Limitation on Interest. In no contingency, whether by reason of
acceleration of the Maturity of this Note or otherwise, shall the interest
contracted for, charged or received by Holder exceed the maximum amount
permissible under applicable law. If, from any circumstance whatsoever, interest
would otherwise be payable to Holder in excess of the maximum lawful amount, the
interest payable to Holder shall be reduced to the maximum amount permitted
under applicable law; and, if from any circumstance the Holder shall ever
receive anything of value deemed interest by applicable law in excess of the
maximum lawful amount, an amount equal to any excessive interest shall be
applied to the reduction of the principal of this Note and not to the payment of
interest, or if such excessive interest exceeds the unpaid balance of principal
of the Note such excess shall be refunded to Maker. All interest paid or agreed
to be paid to Holder shall, to the extent permitted by applicable law, be
amortized, pro-rated, allocated, and spread throughout the full period until
payment in full of the principal of the Note (including the period of any
renewal or extension thereof) so that interest thereon for such full period
shall not exceed the maximum amount permitted by applicable law.
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7. Remedies; Nonwaiver. Failure of Holder to exercise any right or
remedy available to Holder upon the occurrence of an Event of Default hereunder
shall not constitute a waiver on the part of Holder of the right to exercise any
such right or remedy for that Event of Default or any subsequent Event of
Default. The exercise of any remedy by Holder shall not constitute an election
of any such remedy to the exclusion of any other remedies afforded Holder at law
or in equity, all such remedies being nonexclusive and cumulative. If an Event
of Default occurs under this Note and this Note is referred to an attorney at
law for collection, Maker agrees to pay all costs incurred by Holder incident to
collection, including but not limited to reasonable attorney fees (such fees not
to exceed ten percent (10%) of the then outstanding principal balance of the
Note), enforceable as a contract of indemnity, plus all court costs and other
expenses incurred at or prior to trial and in connection with any and all
appeals.
8. Waivers. The Maker, endorsers, sureties and guarantors hereof, if
any, severally (i) waive presentment, protest and demand, (ii) waive notice of
protest, demand, dishonor and nonpayment of this Note, and (iii) expressly agree
that this Note may be renewed in whole or in part, or any nonpayment hereunder
may be extended, or a new note of different form may be substituted for this
Note or changes may be made in consideration of the extension of the Maturity
date hereof, or any combination thereof, from time to time, but, in any singular
event or any combination of such events, neither Maker nor any endorser, surety
or guarantor will be released from liability by reason of the occurrence of any
such event, nor shall Holder hereof be deemed by the occurrence of any such
event to have waived or surrendered, either in whole or in part, any right it
otherwise might have.
9. Option to Convert Note Into Stock.
(a) The Maker represents that at any time prior to Maturity the
closing market price of Maker's common stock exceeds $1.00 per share (the
"Conversion Right"), Holder shall have the right and option to convert the
unpaid principal balance of this Note, together with all accrued and unpaid
interest, into shares of Maker's voting common stock (the "Shares") having all
rights inherent in common stock under the Maker's Articles of Incorporation and
Bylaws in effect as of the date hereof (the "Option"). The number Shares shall
be determined by dividing the then outstanding principal balance, together with
all accrued and unpaid interest, by the Conversion Price (defined below).
(b) For purposes hereunder, the Conversion Price prior to Maturity
shall be equal to ninety-five percent (95%) of the average of the Average Daily
Price of the Maker's Common Stock for a period of five (5) trading days prior to
a Notice of Conversion (as defined below).
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(c) Upon Holder's approval, in the event that Maker has not paid
the Note in its entirety at Maturity, the outstanding principal and accrued
interest of the Note may be converted at the option of the Holder into Shares at
the lesser of (i) one hundred fifteen percent (115%) of the closing price of the
Maker's common stock on the date of Maturity, or (ii) ninety-five percent (95%)
of the average of the Average Daily Price of the Maker's Common Stock for the
five (5) trading days prior to Xxxxxx's approval of conversion. Such approval
shall be given within five (5) days of the Maturity Date, otherwise, the Note in
its entirety, including all interest due and payable, will be immediately
payable in full by Maker.
(d) Maker shall file a registration statement to register for
resale under the Securities Act of 1933, as amended (the "Securities Act") all
Shares that may be issued under subsections (b) or (c). Such registration
statement shall be filed within ten (10) trading days of the initial Notice of
Conversion, but in no event later than August 1, 2001.
10. Mechanics of Conversion. Before the Holder shall be entitled to
convert this Note into Shares, the Holder shall surrender this Note, duly
endorsed, at the office of the Maker, and shall give written notice to the Maker
at its principal corporate office of the election to convert the same and shall
state therein the name or names in which the certificate or certificates for the
Shares are to be issued (the "Notice of Conversion"). The Maker shall, promptly
thereafter, issue and deliver to such persons at the address specified by the
holder, a certificate or certificates for the Shares to which the Holder is
entitled. Such conversion shall be deemed to have been made immediately prior to
the close of business on the date of surrender of this Note, and the persons
entitled to receive the Shares issuable upon such conversion shall be treated
for all purposes as the record holder or holders of such Shares as of such date.
No fractional shares shall be issued upon conversion of this Note and the number
of Shares to be issued shall be rounded down to the nearest whole share.
11. Prepayment. The Maker may prepay any part of or the entire balance
of this Note without penalty; provided, however, that any time the Holder has a
Conversion Right, Maker must have Holder's prior written consent in order to
prepay any part of this Note.
12. Controlling Law. This Note shall be governed by and construed in
accordance with the laws of the State of Arkansas (other than its conflict of
laws principles) and the provisions of applicable federal law.
13. Shareholder Status. Nothing contained in this Note shall be
construed as conferring upon the Holder the right to vote or to receive
dividends or to consent or to receive notice as a shareholder in respect of any
meeting of shareholders for the election of directors of the Maker or of any
other matter, or any rights whatsoever as a shareholder of the Maker prior to
conversion hereof.
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14. Notices. Any notice required or permitted under this Note shall be
in writing and shall be deemed to have been given on the date of delivery, if
personally delivered or delivered by courier, overnight express or other method
of verified delivery, to the party to whom notice is to be given, and addressed
to the addressee at the address of the addressee set forth herein, or the most
recent address, specified by written notice, given to the sender pursuant to
this paragraph.
EXECUTED AND EFFECTIVE as of this the 4th day of April, 2001.
Maker's Address: Maker:
000 Xxxxx Xxxxx Xxxx XXXXXX XXXXXXXXXXX
Xxxx xx Xxxxxxx, XX 00000
By: /s/ Xxxxx X. Xxxxxx
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Xxxxx X. Xxxxxx
Chief Executive Officer
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