EXHIBIT 4.2.65
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THIS NOTE AND ANY SHARES ACQUIRED UPON CONVERSION OF THIS NOTE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), AND MAY NOT
BE SOLD, TRANSFERRED, ASSIGNED OR HYPOTHECATED UNLESS THERE IS AN EFFECTIVE
REGISTRATION STATEMENT UNDER SUCH ACT COVERING THIS NOTE, THE SALE IS MADE IN
ACCORDANCE WITH RULE 144 UNDER THE ACT, OR THE COMPANY RECEIVES AN OPINION OF
COUNSEL FOR THE HOLDER OF THIS NOTE REASONABLY SATISFACTORY TO THE COMPANY,
STATING THAT SUCH SALE, TRANSFER, ASSIGNMENT OR HYPOTHECATION IS EXEMPT FROM THE
REGISTRATION AND PROSPECTUS DELIVERY REQUIREMENTS OF SUCH ACT.
SALON MEDIA GROUP, Inc.
CONVERTIBLE PROMISSORY NOTE
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$100,000 November 12, 2003
Salon Media Group, Inc., a Delaware corporation (the "Company"), for
value received, hereby promises to pay to Xxxx Xxxxxxx ("Holder"), the principal
sum of One Hundred Thousand Dollars ($100,000) with interest as provided below.
1. Payment.
(a) Payment. Subject to the provisions of Section 3 hereof relating
to the conversion of this Note, principal and accrued interest hereof shall be
payable on the earlier of (i) the date of the next meeting of the Company's
stockholders at which a proposal seeking the approval of the sale of the Bridge
Notes (as defined below) is voted upon and is not approved by the Company's
stockholders, or (ii) December 31, 2003 (the "Maturity Date"). Payments
hereunder shall be made by the Company to the Holder, at the address as provided
to the Company by the Holder in writing, in lawful money of the United States of
America. Interest shall accrue with respect to the unpaid principal amount of
the loan from the date of this Note until such principal is paid or converted as
provided in Section 3 hereof at a rate of six percent (6%) per annum (computed
on the basis of a 365-day year).
(b) Prepayment. The Company shall have the right at any time and
without penalty to prepay, in whole or in part, the principal outstanding and/or
the interest accrued hereunder.
2. Certain Definitions.
(a) "Bridge Notes" shall mean the series of notes, of which this
Note is a part, dated on or about the date hereof, each of which are identical,
other than the date of the Note, identity of the Holder and principal amount of
this Note.
(b) "Financing" shall mean the first closing of the proposed Series
C Preferred Stock.
(c) "Financing Securities" shall mean the shares of equity
securities of the Company sold in the Financing.
(d) "Obligations" shall mean all outstanding principal and accrued
interest due hereunder.
3. Conversion.
(a) Automatic Conversion Upon Financing. This Note shall
automatically convert into the Financing Securities upon the closing of the
Financing.
(b) Conversion Absent Financing by December 31, 2003. If no
Financing shall have occurred by the close of business on December 31, 2003,
then this Note shall be convertible at the option of the Holder into shares of
Common Stock. Notwithstanding the foregoing, the Note shall only be convertible
into Common Stock at such time as the Company's stockholders have approved an
amendment to the Company's certificate of incorporation increasing the
authorized shares of Common Stock to a level which would permit the conversion
of all of the Note into Common Stock.
(c) Conversion Price Upon Financing. In the event of an automatic
conversion pursuant to subsection 3(a) hereof, the number of shares of the
Financing Securities to be issued upon conversion of the Obligations shall equal
the aggregate amount of the Obligations divided by the price per share of the
Financing Securities issued and sold in the Financing.
(d) Conversion Price Absent Financing by December 31, 2003. In the
event of an automatic conversion pursuant to subsection 3(b) hereof, the number
of shares of the Common Stock to be issued upon conversion of this Note shall
equal the aggregate amount of the Obligations divided by the average closing
price of the Common Stock over the sixty (60) trading days ending September 30,
2003 or December 31, 2003, whichever is lower, as reported on such market(s)
and/or exchange(s) where the Common Stock has traded during such sixty day
trading period.
(e) Notice Regarding Financing. Written notice shall be delivered to
the Holder of this Note pursuant to Section 7 below notifying the Holder of the
terms and conditions of the Financing, the applicable conversion price, the date
on which any automatic conversion occurred and calling upon such Holder to
surrender the Note to the Company for cancellation and conversion in the manner
and at the place designated.
(f) Mechanics and Effect of Conversion. No fractional shares of
Financing Securities or Common Stock shall be issued upon conversion of this
Note. Notwithstanding any other provision of this Note or the Note and Warrant
Purchase Agreement, upon the conversion of the Obligations under this Note, in
lieu of the Company issuing any fractional shares to the Holder, the Company
shall pay to the Holder in cash the amount of the Obligations that is not so
converted. Upon conversion of this Note pursuant hereto, the Holder shall
surrender this Note,
xxxx endorsed, at the principal office of the Company and shall execute such
documents as are reasonably required to be executed by all purchasers of the
Financing Securities. The Company shall, as soon as practicable thereafter,
issue and deliver to such Holder at such principal office a certificate or
certificates for the number of shares of the Financing Securities or Common
Stock to which the Holder shall be entitled upon such conversion (bearing such
legends as are required by applicable state and federal securities laws in the
opinion of counsel to the Company), together with any other securities and
property to which the Holder is entitled upon such conversion under the terms of
this Note. Upon full conversion of this Note pursuant to the terms hereof, the
Company shall be forever released from all its obligations and liabilities under
this Note. Upon conversion of this Note into Financing Securities or Common
Stock, the Holder shall be entitled to all rights and privileges afforded by the
Company to other holders of such Financing Securities or Common Stock.
4. Events of Default. The occurrence of any of the following shall
constitute an "Event of Default" under this Note and the Note and Warrant
Purchase Agreement of even date herewith (the "Purchase Agreement"):
(a) Failure to Pay. The Company shall fail to pay (i) when due any
principal payment on the due date hereunder or (ii) any interest or other
payment required under the terms of this Note on the date due and such payment
shall not have been made within fifteen (15) days of Company's receipt of
Xxxxxx's written notice to the Company of such failure to pay; or
(b) Voluntary Bankruptcy or Insolvency Proceedings. The Company
shall (i) apply for or consent to the appointment of a receiver, trustee,
liquidate or custodian of itself or of all or a substantial part of its
property, (ii) make a general assignment for the benefit of its or any of its
creditors, (iii) be dissolved or liquidated in full or in part, (iv) commence a
voluntary case or other proceeding seeking liquidation, reorganization or other
relief with respect to itself or its debts under any bankruptcy, insolvency or
other similar law now or hereafter in effect or consent to any such relief or to
the appointment of or taking possession of its property by any official in an
involuntary case or other proceeding commenced against it, or (v) take any
action for the purpose of effecting any of the foregoing; or
(c) Involuntary Bankruptcy or Insolvency Proceedings. Proceedings
for the appointment of a receiver, trustee, liquidator or custodian of the
Company or of all or a substantial part of the property thereof, or an
involuntary case or other proceedings seeking liquidation, reorganization or
other relief with respect to the Company or the debts thereof under any
bankruptcy, insolvency or other similar law or hereafter in effect shall be
commenced and an order for relief entered or such proceeding shall not be
dismissed or discharged within thirty (30) days of commencement.
5. Rights of Holder Upon Default. Subject to the provisions set
forth in Sections 5 and 6 of the Purchase Agreement, upon the occurrence or
existence of any Event of Default (other than an Event of Default referred to in
Paragraphs 4(c) and 4(d)) and at any time thereafter during the continuance of
such Event of Default, Holder may declare all outstanding Obligations payable by
Company hereunder to be immediately due and payable without presentment, demand,
protest or any other notice of any kind, all of which are hereby expressly
waived, anything contained herein or in the Purchase Agreement to the contrary
notwithstanding. Upon
the occurrence or existence of any Event of Default described in Paragraphs 4(c)
and 4(d), immediately and without notice, all outstanding Obligations payable by
Company hereunder shall automatically become immediately due and payable,
without presentment, demand, protest or any other notice of any kind, all of
which are hereby expressly waived, anything contained herein or in the Purchase
Agreement to the contrary notwithstanding. In addition to the foregoing
remedies, upon the occurrence or existence of any Event of Default and subject
to the provisions of Sections 5 and 6 of the Purchase Agreement, Holder may
exercise any other right, power or remedy granted to it by the Purchase
Agreement or otherwise permitted to it by law, either by suit in equity or by
action at law, or both.
6. Security Interest. The satisfaction of the Obligations hereunder
are secured by a security interest in favor of the Purchasers in all of the
Company's right, title and interest in presently existing and hereafter acquired
assets as provided for in Section 4 of the Purchase Agreement.
7. Miscellaneous.
(a) Amendment Provisions. Any provision of this Note other than the
principal amount and identity of the Holder may be amended, waived or modified
upon the written consent of the Company and the parties providing at least a
majority of the aggregate principal amounts provided pursuant to the Bridge
Notes.
(b) Severability. If any provision of this Note is determined to be
invalid, illegal or unenforceable, in whole or in part, the validity, legality
and enforceability of any of the remaining provisions or portions of this Note
shall not in any way be affected or impaired thereby and this Note shall
nevertheless be binding between the Company and the Holder.
(c) Governing Law. This Note shall be governed by and construed in
accordance with the laws of the State of Delaware.
(d) Binding Effect. This Note shall be binding upon, and shall inure
to the benefit of, the Company and the Holder and their respective successors
and assigns; provided, however, that the Company may not assign its obligations
hereunder without the Holder's prior written consent.
(e) Enforcement Costs. The Company agrees to pay all costs and
expenses, including, without limitation, reasonable attorneys' fees and
expenses, the Holder expends or incurs in connection with the enforcement of
this Note, the collection of any sums due hereunder, any actions for declaratory
relief in any way related to this Note, or the protection or preservation of any
rights of the Holder hereunder.
(f) Notices. Any notice, request or other communication required or
permitted hereunder shall be in writing and shall be duly given upon receipt if
personally delivered or mailed by registered or certified mail, postage prepaid,
or by recognized overnight courier or personal delivery, addressed (i) if to
Holder, at the address or facsimile number of such Holder as set forth below
such party's name on Exhibit A to the Purchase Agreement, or at such other
address or number as such Holder shall have furnished to the Company in writing,
or
(ii) if to Company, at 00 Xxxxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxxxxxxx, XX 00000,
Attention: Chief Financial Officer or at such other address as Company shall
furnish to the Purchaser in writing.
(g) Payment. Payment shall be made in lawful tender of the United
States.
(h) Transfer of Note or Securities Issuable on Conversion Hereof.
This Note or the securities issuable on conversion hereof may not be transferred
in violation of any restrictive legend set forth hereon or thereon. Each new
Note issued upon transfer of this Note, and each security issuable on conversion
hereof, shall bear the restrictive legend set forth below, unless in the opinion
of counsel for Company such legend is not required in order to ensure compliance
with the Act:
"THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND MAY NOT BE SOLD OR
OTHERWISE TRANSFERRED EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION
STATEMENT FILED UNDER SUCH ACT OR PURSUANT TO AN EXEMPTION FROM
REGISTRATION UNDER SUCH ACT."
The Company may issue stop transfer instructions to its transfer agent in
connection with such restrictions. Subject to the foregoing, transfers of this
Note shall be registered upon registration books maintained for such purpose by
or on behalf of the Company as provided in the Purchase Agreement. Prior to
presentation of this Note for registration of transfer, the Company shall treat
the registered holder hereof as the owner and holder of this Note for the
purpose of receiving all payments of principal and interest hereon and for all
other purposes whatsoever, whether or not this Note shall be overdue and Company
shall not be affected by notice to the contrary.
(i) Headings. Section headings used in this Note have been set forth
herein for convenience of reference only. Unless the contrary is compelled by
the context, everything contained in each section hereof applies equally to this
entire Note.
IN WITNESS WHEREOF, the Company has caused this Note to be issued as
of the date first written above.
Salon Media Group, Inc.
By: /s/ Xxxxx Xxxxxx
Name: Xxxxx Xxxxxx
Title: Chairman of the Board
