Exhibit 10.52
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Standard Form Revised 12/6/04
Consultant
Initial:______
Initial:______
CONSULTING Agreement
This Agreement (the "Agreement") is entered into as of August 20, 2007 (the
"Effective Date") by and between FinancialContent, Inc., with principal offices
at 000 Xxxxxxx Xxxxxx Xxxxx, Xxxxx 000, Xxxxxx Xxxx, Xxxxxxxxxx 00000
("Company") and Jade Special Strategy, LLC, with principal offices at 0000 Xxxx
Xxxxxxx Xxxx, Xxxxx 000, Xxxxxxxx, Xxx Xxxx 00000 (the "Consultant")
RECITALS:
WHEREAS, the Company desires to retain the Consultant and the Consultant desires
to be retained by the Company pursuant to the terms and conditions hereinafter
set forth:
NOW, THEREFORE, in consideration of the foregoing and the mutual promises and
covenants herein contained, it is hereby agreed as follows:
SECTION 1. Retention.
(a) The Company hereby retains the Consultant on a non-exclusive basis
to perform the services set forth in Section 1 (b), below, during the one (1)
year period commencing on the date hereof. The Consultant hereby accepts such
retention and shall perform for the Company the duties described herein,
faithfully and to the best of its ability. During the Term, the Consultant shall
report directly to the Chief Executive Officer of the Company or to any other
senior officer designated in writing by the Chief Executive Officer of the
Company.
(b) The Consultant shall serve as a Consultant to the Company and
render such advice and services to the Company as may be reasonably requested by
the Company concerning strategic planning, merger and acquisition possibilities
and business development activities including, without limitation, the
following:
(i) Study and review of the business, operations, and
historical financial performance of the Company (based upon
management's forecast of financial performance) so as to enable the
Consultant to identify provide prospects and advice to the Company; and
(ii) Provide training and education to management in best
practices in new market development and merger and acquisitions.
(c) Such services expressly exclude equity and/or debt financings and
any other services that may directly or indirectly relate to the offer or sale
of securities in a capital-raising transaction.
SECTION 2. Compensation.
(a) Company shall issue Consultant a note in the amount of one hundred
fifty thousand dollars ($150,000) (the "Note") payable on December 31, 2007, and
as otherwise provided under the Note, attached hereto as Exhibit A.
(b) Company shall issue to the Consultant one hundred thousand shares
(100,000) of its common stock registered under form S-8 (the "Registered
Shares") within ten (10) business days of executing this Agreement, which
Registered Shares shall be issuable to the individual(s) working for or on
behalf of the Consultant and as designated by the Consultant on Schedule A.
(c) Except as otherwise provided for herein, all securities due the
Consultant hereunder shall be made via DTC or the DWAC system if eligible for
such system, or by certificates issued by the transfer agent for the Company or
the Company, as applicable.
SECTION 3. Condition Precedent. The obligation hereunder of the Company
to issue the Note and transfer the Registered Shares is subject to the
following:
(a) Company and Consultant amending in writing, signed by each party,
concurrently with this Agreement, each of the three (3) Senior Secured
Convertible Promissory Notes issued by the Company to the Consultant on or about
February 13, 2006, March 31, 2006, and on June 9, 2006; and
(b) The approval of the Company's board of director.
SECTION 4. Termination. This Agreement and the Consultant's engagement
hereunder shall not be terminated by Company under any circumstances nor for any
reason whatsoever, unless all compensation due to Consultant pursuant to Section
2 above has been distributed to the Consultant. Sections 2, 5, 6, and 7 shall
survive any termination of this Agreement.
SECTION 5. Confidential Information. The Consultant agrees that during
and after the Term, it will keep in strictest confidence, and will not disclose
or make accessible to any other person without the written consent of the
Company, the Company's products, services and technology, both current and under
development, promotion and marketing programs, lists, trade secrets and other
confidential and proprietary business information of the Company or any of its
clients and third parties including, without limitation, Proprietary Information
(as defined in Section 6) (all of the foregoing is referred to herein as the
"Confidential Information"). The Consultant agrees (a) not to use any such
Confidential Information for itself or others, except in connection with the
performance of its duties hereunder; and (b) not to take any such material or
reproductions thereof from the Company's facilities at any time during the Term
except, in each case, as required in connection with the Consultant's duties
hereunder.
Notwithstanding the foregoing, the parties agree that the Consultant is
free to use (a) information in the public domain not as a result of a breach of
this Agreement, (b) information lawfully received form a third party who had the
right to disclose such information and (c) the Consultant's own independent
skill, knowledge, know-how and experience to whatever extent and in whatever way
he wishes, in each case consistent with his obligations as the Consultant and
that, at all times, the Consultant is free to conduct any research relating to
the Company's business.
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SECTION 6. Ownership of Proprietary Information. The Consultant agrees
that all information that has been created, discovered or developed by the
Company, its subsidiaries, affiliates, licensors, licensees, successors or
assigns (collectively, the "Affiliates") (including, without limitation,
information relating to the development of the Company's business created,
discovered, developed by the Company or any of its affiliates during the Term,
and information relating to the Company's customers, suppliers, Consultants, and
licensees) and/or in which property rights have been assigned or otherwise
conveyed to the Company or the Affiliates, shall be the sole property of the
Company or the Affiliates, as applicable, and the Company or the Affiliates, as
the case may be, shall be the sole owner of all patents, copyrights and other
rights in connection therewith, including without limitation the right to make
application for statutory protection. All the aforementioned information is
hereinafter called "Proprietary Information." By way of illustration, but not
limitation, Proprietary Information includes trade secrets, processes,
discoveries, structures, inventions, designs, ideas, works of authorship,
copyrightable works, trademarks, copyrights, formulas, improvements, inventions,
product concepts, techniques, marketing plans, merger and acquisition targets,
strategies, forecasts, blueprints, sketches, records, notes, devices, drawings,
customer lists, patent applications, continuation applications,
continuation-in-part applications, file wrapper continuation applications and
divisional applications and information about the Company's Affiliates, its
employees and/or Consultants (including, without limitation, the compensation,
job responsibility and job performance of such employees and/or Consultants).
All original content, proprietary information, trademarks, copyrights,
patents or other intellectual property created by the Consultant that does not
include any specific information relative to the Company's proprietary
information, shall be the sole and exclusive property of the Consultant.
SECTION 7. Indemnification. The Company represents that all materials
provided or to be provided to the Consultant or any third party regarding the
Company's financial affairs or operations are and shall be truthful and accurate
and in compliance with any and all applicable federal and state securities laws.
The Company agrees to indemnify and hold harmless the Consultant and its
Consultants, professionals, lawyers, consultants and affiliates, their
respective directors, officers, shareholders, partners, members, managers,
agents and employees and each other person, if any, controlling the Consultant
or any of its affiliates to the full extent lawful, from and against all losses,
claims, damages, liabilities and expenses incurred by them (including reasonable
attorneys' fees and disbursements) that result from actions taken or omitted to
be taken (including any untrue statements made or any statement omitted to be
made) by the Company, its agents or employees which relate to the scope of this
Agreement and the performance of the services by the Consultant contemplated
hereunder. The Consultant will indemnify and hold harmless the Company and the
respective directors, officers, agents, affiliates and employees of the Company
from and against all losses, claims damages, liabilities and expenses that
result from bad faith, gross negligence or unauthorized representations of the
Consultant. Each person or entity seeking indemnification hereunder shall
promptly notify the Company, or the Consultant, as applicable, of any loss,
claim, damage or expense for which the Company or the Consultant, as applicable,
may become liable pursuant to this Section 7. No party shall pay, settle or
acknowledge liability under any such claim without consent of the party liable
for indemnification, and shall permit the Company or the Consultant, as
applicable, a reasonable opportunity to cure any underlying problem or to
mitigate actual or potential damages. The scope of this indemnification between
the Consultant and the Company shall be limited to, and pertain only to certain
transactions contemplated or entered into pursuant to this Agreement.
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The Company or the Consultant, as applicable, shall have the
opportunity to defend any claim for which it may be liable hereunder, provided
it notifies the party claiming the right to indemnification in writing within
fifteen (15) days of notice of the claim.
The rights stated pursuant to this Section 7 shall be in addition to
any rights that the Consultant, the Company, or any other person entitled to
indemnification may have in common law or otherwise, including, but not limited
to, any right to contribution.
SECTION 8. Notices. Any notice or other communication under this
Agreement shall be in writing and shall be deemed to have been duly given: (a)
upon facsimile transmission (with written transmission confirmation report) at
the number designated below; (b) when delivered personally against receipt
therefore; (c) one day after being sent by Federal Express or similar overnight
delivery; or (d) five (5) business days after being mailed registered or
certified mail, postage prepaid. The addresses for such communications shall be
as set forth below or to such other address as a party shall give by notice
hereunder to the other party to this Agreement.
If to the Company: FinancialContent, Inc.
000 Xxxxxxx Xxxxxx Xxxxx, Xxxxx 000
Xxxxxx Xxxx, XX 00000
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Attention: Wing Yu, CEO
If to the Consultant: Jade Special Strategy, LLC
0000 Xxxx Xxxxxxx Xxxx, Xxxxx
Xxxxxxxx, XX 00000
(000) 000-0000 - Tel
(000) 000-0000 - Fax
Attention: Xxxxx Xxxxxx
SECTION 9. Status of Consultant. The Consultant shall be deemed to be
an independent contractor and, except as expressly provided or authorized in
this Agreement, shall have no authority to act for on behalf of or represent the
Company. This Agreement does not create a partnership or joint venture.
SECTION 10. Other Activities of Consultant. The Company recognizes that
the Consultant now renders and may continue to render other Consulting services
to other companies that may or may not conduct business and activities similar
to those of the Company. The Consultant shall not be required to devote its full
time and attention to the performance of its duties under this Agreement, but
shall devote only so much of its time and attention as it deems reasonable or
necessary for such purposes.
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SECTION 11. Successors and Assigns. This Agreement and all of the
provisions hereof shall be binding upon and inure to the benefit of the parties
hereto and their respective successors and permitted assigns. This Agreement and
any of the rights, interests or obligations hereunder may not be assigned by a
party without the prior written consent of the other party, which consent shall
not be unreasonably withheld.
SECTION 12. Severability of Provisions. If any provision of this
Agreement shall be declared by a court of competent jurisdiction to be invalid,
illegal or incapable of being enforced in whole or in part, the remaining
conditions and provisions or portions thereof shall nevertheless remain in full
force and effect and enforceable to the extent they are valid, legal and
enforceable, and no provision shall be deemed dependent upon any other covenant
or provision unless so expressed herein.
SECTION 13. Entire Agreement; Modification. This Agreement and the
schedule hereto contains the entire agreement of the parties relating to the
subject matter hereof, and the parties hereto and thereto have made no
agreements, representations or warranties relating to the subject matter of this
Agreement which are not set forth herein. No amendment or modification of this
Agreement shall be valid unless made in writing and signed by each of the
parties hereto.
SECTION 14. Non-Waiver. The failure of any party to insist upon the
strict performance of any of the terms, conditions and provisions of this
Agreement shall not be construed as a waiver or relinquishment of future
compliance therewith; and the said terms, conditions and provisions shall remain
in full force and effect. No waiver of any term or condition of this Agreement
on the part of any party shall be effective for any purpose whatsoever unless
such waiver is in writing and signed by such party.
SECTION 15. Remedies For Breach. The Consultant and Company mutually
agree that any breach of Sections 2, 5, 6, or 7 of this Agreement by the
Consultant or the Company may cause irreparable damage to the other party and/or
their affiliates, and that monetary damages alone would not be adequate and, in
the event of such breach or threat of breach, the damaged party shall have, in
addition to any and all remedies at law and without the posting of a bond or
other security, the right to an injunction, specific performance or other
equitable relief necessary to prevent or redress the violation of either party's
obligations under such Sections. In the event that an actual proceeding is
brought in equity to enforce such Sections, the offending party shall not urge
as a defense that there is an adequate remedy at law nor shall the damaged party
be prevented from seeking any other remedies that may be available to it. The
defaulting party shall pay all attorney's fees and costs incurred by the other
party in enforcing this Agreement.
SECTION 16. Governing Law. The parties hereto acknowledge that the
transactions contemplated by this Agreement bear a reasonable relation to the
state of placeplaceNew York. This Agreement shall be governed by, and construed
and interpreted in accordance with, the internal laws of the state of
placeplaceNew York without regard to such state's principles of conflicts of
laws. The parties irrevocably and unconditionally agree that the exclusive place
of jurisdiction for any action, suit or proceeding ("Actions") relating to this
Agreement shall be in the state or federal courts situated in the county and
state of placeplaceNew York. Each party irrevocably and unconditionally waives
any objection it may have to the venue of any Action brought in such courts or
to the convenience of the forum. Final judgment in any such Action shall be
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conclusive and may be enforced in other jurisdictions by suit on the judgment, a
certified or true copy of which shall be conclusive evidence of the fact and the
amount of any indebtedness or liability of any party therein described. Service
of process in any Action by any party may be made by serving a copy of the
summons and complaint, in addition to any other relevant documents, by
commercial overnight courier to any other party at their address set forth in
this Agreement.
SECTION 17. Headings. The headings of the Sections are inserted for
convenience of reference only and shall not affect any interpretation of this
Agreement.
SECTION 18. Counterparts. This Agreement may be executed in counterpart
signatures, each of which shall be deemed an original, but all of which, when
taken together, shall constitute one and the same instrument, it being
understood that both parties need not sign the same counterpart. In the event
that any signature is delivered by facsimile transmission, such signature shall
create a valid and binding obligation of the party executing (or on whose behalf
such signature is executed) the same with the same force and effect as if such
facsimile signature page were an original thereof.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement of
eight (7) pages as of the day and year first written above.
FINANCIALCONTENT, INC.
By: /s/ Wing Yu
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Name: Wing Yu
Title: CEO
JADE SPECIAL STRATEGY, LLC
By: /s/ Xxxxx Xxxxxx
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Name: Xxxxx Xxxxxx
Title: Manager
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SCHEDULE A
S-8 SHARE DESIGNEE
Issuee No. of Shares
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EXHIBIT A
THIS NOTE AND THE SHARES OF COMMON STOCK ISSUABLE UPON CONVERSION HEREOF HAVE
NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), OR
APPLICABLE STATE SECURITIES LAWS, AND MAY NOT BE SOLD, TRANSFERRED, OR OTHERWISE
DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR RECEIPT BY THE MAKER OF AN
OPINION OF COUNSEL IN THE FORM, SUBSTANCE AND SCOPE REASONABLY SATISFACTORY TO
THE MAKER THAT THIS NOTE AND THE SHARES OF COMMON STOCK ISSUABLE UPON CONVERSION
HEREOF MAY BE SOLD, TRANSFERRED, OR OTHERWISE DISPOSED OF, UNDER AN EXEMPTION
FROM REGISTRATION UNDER THE ACT AND SUCH STATE SECURITIES LAWS.
FINANCIALCONTENT, INC.
Senior Secured Convertible Promissory Note
due December 31, 2007
Dated: August 20, 2007 $150,000
For value received, FinancialContent, Inc., a Delaware corporation (the
"Maker"), hereby promises to pay to the order of Jade Special Strategy, LLC
(together with its successors, representatives, and permitted assigns, the
"Holder"), in accordance with the terms hereinafter provided, the principal
amount of one hundred fifty thousand dollars ($150,000), together with interest
thereon. Concurrently with the issuance of this Note, the Maker is issuing
separate convertible promissory notes (the "Other Notes") to separate purchasers
(the "Other Holders") pursuant to the Purchase Agreement (as defined in Section
1.1 hereof).
All payments under or pursuant to this Note shall be made in United
States Dollars in immediately available funds to the Holder at the address of
the Holder first set forth above or at such other place as the Holder may
designate from time to time in writing to the Maker or by wire transfer of funds
to the Holder's account, instructions for which are attached hereto as Exhibit
A. The outstanding principal balance of this Note shall be due and payable on
dateMonth12Day31Year2007December 31, 2007 (the "Maturity Date") or at such
earlier time as provided herein.
ARTICLE I
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Section 1.1 Purchase Agreement. This Note has been executed and
delivered pursuant to the Consulting Agreement dated as of August __, 2007 (the
"Consluting Agreement") by and among the Maker and the purchasers listed
therein. Capitalized terms used and not otherwise defined herein shall have the
meanings set forth for such terms in the Purchase Agreement.
Section 1.2 Interest.
(a) Beginning on the issuance date of this Note (the "Issuance Date"),
the outstanding principal balance of this Note shall bear interest, in arrears,
at a rate per annum equal to nine percent (9%), payable monthly commencing on
August 30, 2007 and on the last business day of each following month at the
option of the Maker in (A) cash or (B) registered shares of the Maker's common
stock, $0.001 par value per share (the "Common Stock"). The Maker shall provide
irrevocable written notice to the Holder of the form of interest payment at
least ten (10) days prior to an interest payment date. If no such notice is
provided at least ten (10) days prior to an interest payment date, the Maker
must make the interest payment in cash. In addition, the Maker must make
interest payments in cash if it is unable to make interest payments in
registered shares of Common Stock. The number of shares of Common Stock to be
issued as payment of accrued and unpaid interest shall be determined by dividing
(a) the total amount of accrued and unpaid interest to be converted into Common
Stock by (b) the Conversion Price (as defined in Section 3.2 hereof). Interest
shall be computed on the basis of a 360-day year of twelve (12) 30-day months
and shall accrue commencing on the Issuance Date. Furthermore, upon the
occurrence of an Event of Default (as defined in Section 2.1 hereof), then to
the extent permitted by law, the Maker will pay interest to the Holder, payable
on demand, on the outstanding principal balance of the Note from the date of the
Event of Default until such Event of Default is cured at the rate of the lesser
of fifteen percent (15%) and the maximum applicable legal rate per annum.
Section 1.3 Security Agreement. The obligations of the Maker hereunder
are secured by a continuing security interest in all of the assets of the Maker
pursuant to the terms of a security agreement dated as of February 13, 2006 by
and among the Maker, on the one hand, and the Holder, on the other hand.
Section 1.4 Payment on Non-Business Days. Whenever any payment to be
made shall be due on a Saturday, Sunday or a public holiday under the laws of
the State of placeStateNew York, such payment may be due on the next succeeding
business day and such next succeeding day shall be included in the calculation
of the amount of accrued interest payable on such date.
Section 1.5 Transfer. This Note may be transferred or sold, subject to
the provisions of Section 4.8 of this Note, or pledged, hypothecated or
otherwise granted as security by the Holder.
Section 1.6 Replacement. Upon receipt of a duly executed, notarized and
unsecured written statement from the Holder with respect to the loss, theft or
destruction of this Note (or any replacement hereof) and a standard indemnity,
or, in the case of a mutilation of this Note, upon surrender and cancellation of
such Note, the Maker shall issue a new Note, of like tenor and amount, in lieu
of such lost, stolen, destroyed or mutilated Note.
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ARTICLE II
EVENTS OF DEFAULT; REMEDIES
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Section 2.1 Events of Default. The occurrence of any of the following
events shall be an "Event of Default" under this Note:
(a) the Maker shall fail to make any principal or interest payments on
the date such payments are due and such default is not fully cured within three
(3) business days after the occurrence thereof; or
(b) the suspension from listing, without subsequent listing on any one
of, or the failure of the Common Stock to be listed on at least one of the OTC
Bulletin Board, the American Stock Exchange, the Nasdaq National Market, the
Nasdaq SmallCap Market or The New York Stock Exchange, Inc. for a period of
seven (7) consecutive Trading Days; or
(c) the Maker's notice to the Holder, including by way of public
announcement, at any time, of its inability to comply (including for any of the
reasons described in Section 3.8(a) hereof) or its intention not to comply with
proper requests for conversion of this Note into shares of Common Stock; or
(d) the Maker shall fail to (i) timely deliver the shares of Common
Stock upon conversion of the Note or any interest accrued and unpaid; or
(e) default shall be made in the performance or observance of (i) any
material covenant, condition or agreement contained in this Note and such
default is not fully cured within five (5) business days after the Holder
delivers written notice to the Maker of the occurrence thereof; or
(f) the Maker shall (i) apply for or consent to the appointment of, or
the taking of possession by, a receiver, custodian, trustee or liquidator of
itself or of all or a substantial part of its property or assets, (ii) make a
general assignment for the benefit of its creditors, (iii) commence a voluntary
case under the United States Bankruptcy Code (as now or hereafter in effect) or
under the comparable laws of any jurisdiction (foreign or domestic), (iv) file a
petition seeking to take advantage of any bankruptcy, insolvency, moratorium,
reorganization or other similar law affecting the enforcement of creditors'
rights generally, (v) acquiesce in writing to any petition filed against it in
an involuntary case under United States Bankruptcy Code (as now or hereafter in
effect) or under the comparable laws of any jurisdiction (foreign or domestic),
(vi) issue a notice of bankruptcy or winding down of its operations or issue a
press release regarding same, or (vii) take any action under the laws of any
jurisdiction (foreign or domestic) analogous to any of the foregoing; or
(g) a proceeding or case shall be commenced in respect of the Maker,
without its application or consent, in any court of competent jurisdiction,
seeking (i) the liquidation, reorganization, moratorium, dissolution, winding
up, or composition or readjustment of its debts, (ii) the appointment of a
trustee, receiver, custodian, liquidator or the like of it or of all or any
substantial part of its assets in connection with the liquidation or dissolution
of the Maker or (iii) similar relief in respect of it under any law providing
for the relief of debtors, and such proceeding or case described in clause (i),
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(ii) or (iii) shall continue undismissed, or unstayed and in effect, for a
period of thirty (30) days or any order for relief shall be entered in an
involuntary case under United States Bankruptcy Code (as now or hereafter in
effect) or under the comparable laws of any jurisdiction (foreign or domestic)
against the Maker or action under the laws of any jurisdiction (foreign or
domestic) analogous to any of the foregoing shall be taken with respect to the
Maker and shall continue undismissed, or unstayed and in effect for a period of
thirty (30) days; or
(h) the failure of the Maker to pay any amounts due to the Holder
within five (5) business days of the date such payments are due and such default
is not fully cured within two (2) business days after the Holder delivers
written notice to the Maker of the occurrence thereof;.
Section 2.2 Remedies Upon An Event of Default. If an Event of Default
shall have occurred and shall be continuing, the Holder of this Note may at any
time at its option, (a) declare the entire unpaid principal balance of this
Note, together with all interest accrued hereon, due and payable, and thereupon,
the same shall be accelerated and so due and payable, without presentment,
demand, protest, or notice, all of which are hereby expressly unconditionally
and irrevocably waived by the Maker; provided, however, that upon the occurrence
of an Event of Default described in (i) Sections 2.1 (f) or (g), the outstanding
principal balance and accrued interest hereunder shall be automatically due and
payable and (ii) Sections 2.1 (b)-(e), demand the prepayment of this Note
pursuant to Section 3.7 hereof, or (b) demand that the principal amount of this
Note then outstanding and all accrued and unpaid interest thereon shall be
converted into shares of Common Stock at a Conversion Price per share pursuant
to Section 3.1 hereof assuming that the date that the Event of Default occurs is
the Conversion Date (as defined in Section 3.1 hereof). No course of delay on
the part of the Holder shall operate as a waiver thereof or otherwise prejudice
the right of the Holder. No remedy conferred hereby shall be exclusive of any
other remedy referred to herein or now or hereafter available at law, in equity,
by statute or otherwise.
ARTICLE III
CONVERSION; ANTIDILUTION; PREPAYMENT
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Section 3.1 Conversion Option.
(a) At any time on or after the Issuance Date, this Note shall be
convertible (in whole or in part), at the option of the Holder (the "Conversion
Option"), into such number of fully paid and non-assessable shares of Common
Stock (the "Conversion Rate") registered under Form S-8 as is determined by
dividing (x) that portion of the outstanding principal balance plus any accrued
but unpaid interest under this Note as of such date that the Holder elects to
convert by (y) the Conversion Price (as defined in Section 3.2(a) hereof) then
in effect on the date on which the Holder faxes a notice of conversion (the
"Conversion Notice"), duly executed, to the Maker (facsimile number (650)
745-2677, Attn.: Chief Executive Officer) (the "Voluntary Conversion Date"),
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described in Section 3.6 below. The Holder shall deliver this Note to the Maker
at the address designated in the Purchase Agreement at such time that this Note
is fully converted. With respect to partial conversions of this Note, the Maker
shall keep written records of the amount of this Note converted as of each
Conversion Date.
Section 3.2 Conversion Price.
(a) The term "Conversion Price" shall mean $0.75, subject to adjustment
under Section 3.6 hereof.
Section 3.3 Mechanics of Conversion.
(a) Not later than three (3) Trading Days after any Conversion Date,
the Maker or its designated transfer agent, as applicable, shall issue and
deliver to the Depository Trust Company ("DTC") account on the Holder's behalf
via the Deposit Withdrawal Agent Commission System ("DWAC") as specified in the
Conversion Notice, registered in the name of the Holder or its designee, for the
number of shares of Common Stock to which the Holder shall be entitled. In the
alternative, not later than three (3) Trading Days after any Conversion Date,
the Maker shall deliver to the applicable Holder by express courier a
certificate or certificates which shall be free of restrictive legends and
trading restrictions representing the number of shares of Common Stock being
acquired upon the conversion of this Note (the "Delivery Date"). If in the case
of any Conversion Notice such certificate or certificates are not delivered to
or as directed by the applicable Holder by the Delivery Date, the Holder shall
be entitled by written notice to the Maker at any time on or before its receipt
of such certificate or certificates thereafter, to rescind such conversion, in
which event the Maker shall immediately return this Note tendered for
conversion, whereupon the Maker and the Holder shall each be restored to their
respective positions immediately prior to the delivery of such notice of
revocation, except that any amounts described in Sections 3.3(b) and (c) shall
be payable through the date notice of rescission is given to the Maker.
(b) The Maker understands that a delay in the delivery of the shares of
Common Stock upon conversion of this Note beyond the Delivery Date could result
in economic loss to the Holder. If the Maker fails to deliver to the Holder such
shares via DWAC or a certificate or certificates pursuant to this Section
hereunder by the Delivery Date, the Maker shall pay to such Holder, in cash, an
amount per Trading Day for each Trading Day until such shares are delivered via
DWAC or certificates are delivered, together with interest on such amount at a
rate of 10% per annum, accruing until such amount and any accrued interest
thereon is paid in full, equal to the greater of (A) (i) 1% of the aggregate
principal amount of the Notes requested to be converted for the first five (5)
Trading Days after the Delivery Date and (ii) 2% of the aggregate principal
amount of the Notes requested to be converted for each Trading Day thereafter
and (B) $2,000 per day (which amount shall be paid as liquidated damages and not
as a penalty). Nothing herein shall limit a Holder's right to pursue actual
damages for the Maker's failure to deliver certificates representing shares of
Common Stock upon conversion within the period specified herein and such Holder
shall have the right to pursue all remedies available to it at law or in equity
(including, without limitation, a decree of specific performance and/or
injunctive relief). Notwithstanding anything to the contrary contained herein,
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the Holder shall be entitled to withdraw a Conversion Notice, and upon such
withdrawal the Maker shall only be obligated to pay the liquidated damages
accrued in accordance with this Section 3.3(b) through the date the Conversion
Notice is withdrawn.
(c) In addition to any other rights available to the Holder, if the
Maker fails to cause its transfer agent to transmit to the Holder a certificate
or certificates representing the shares of Common Stock issuable upon conversion
of this Note on or before the Delivery Date, and if after such date the Holder
is required by its broker to purchase (in an open market transaction or
otherwise) shares of Common Stock to deliver in satisfaction of a sale by the
Holder of the shares of Common Stock issuable upon conversion of this Note which
the Holder anticipated receiving upon such exercise (a "Buy-In"), then the Maker
shall (1) pay in cash to the Holder the amount by which (x) the Holder's total
purchase price (including brokerage commissions, if any) for the shares of
Common Stock so purchased exceeds (y) the amount obtained by multiplying (A) the
number of shares of Common Stock issuable upon conversion of this Note that the
Maker was required to deliver to the Holder in connection with the conversion at
issue times (B) the price at which the sell order giving rise to such purchase
obligation was executed, and (2) at the option of the Holder, either reinstate
the portion of the Note and equivalent number of shares of Common Stock for
which such conversion was not honored or deliver to the Holder the number of
shares of Common Stock that would have been issued had the Maker timely complied
with its conversion and delivery obligations hereunder. For example, if the
Holder purchases Common Stock having a total purchase price of $11,000 to cover
a Buy-In with respect to an attempted conversion of shares of Common Stock with
an aggregate sale price giving rise to such purchase obligation of $10,000,
under clause (1) of the immediately preceding sentence the Maker shall be
required to pay the Holder $1,000. The Holder shall provide the Maker written
notice indicating the amounts payable to the Holder in respect of the Buy-In,
together with applicable confirmations and other evidence reasonably requested
by the Maker. Nothing herein shall limit a Holder's right to pursue any other
remedies available to it hereunder, at law or in equity including, without
limitation, a decree of specific performance and/or injunctive relief with
respect to the Maker's failure to timely deliver certificates representing
shares of Common Stock upon conversion of this Note as required pursuant to the
terms hereof.
Section 3.4 Ownership Cap and Certain Conversion Restrictions.
(a) Notwithstanding anything to the contrary set forth in Section 3 of
this Note, at no time may the Holder convert all or a portion of this Note if
the number of shares of Common Stock to be issued pursuant to such conversion
would exceed, when aggregated with all other shares of Common Stock owned by the
Holder at such time, the number of shares of Common Stock which would result in
the Holder beneficially owning (as determined in accordance with Section 13(d)
of the Exchange Act and the rules thereunder) more than 4.9% of all of the
Common Stock outstanding at such time; provided, however, that upon the Holder
providing the Maker with sixty-one (61) days notice (pursuant to Section 4.1
hereof) (the "Waiver Notice") that the Holder would like to waive this Section
3.4(a) with regard to any or all shares of Common Stock issuable upon conversion
of this Note, this Section 3.4(a) will be of no force or effect with regard to
all or a portion of the Note referenced in the Waiver Notice.
(b) Notwithstanding anything to the contrary set forth in Section 3 of
this Note, at no time may the Holder convert all or a portion of this Note if
the number of shares of Common Stock to be issued pursuant to such conversion,
when aggregated with all other shares of Common Stock owned by the Holder at
such time, would result in the Holder beneficially owning (as determined in
accordance with Section 13(d) of the Exchange Act and the rules thereunder) in
excess of 9.9% of the then issued and outstanding shares of Common Stock
outstanding at such time; provided, however, that upon the Holder providing the
Maker with a Waiver Notice that the Holder would like to waive Section 3.4(b) of
this Note with regard to any or all shares of Common Stock issuable upon
conversion of this Note, this Section 3.4(b) shall be of no force or effect with
regard to all or a portion of the Note referenced in the Waiver Notice.
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Section 3.5 Intentionally Omitted.
Section 3.6 Adjustment of Conversion Price.
(a) The Conversion Price shall be subject to adjustment from time to
time as follows:
(i) Adjustments for Stock Splits and Combinations. If the
Maker shall at any time or from time to time after the Issuance Date, effect a
stock split of the outstanding Common Stock, the applicable Conversion Price in
effect immediately prior to the stock split shall be proportionately decreased.
If the Maker shall at any time or from time to time after the Issuance Date,
combine the outstanding shares of Common Stock, the applicable Conversion Price
in effect immediately prior to the combination shall be proportionately
increased. Any adjustments under this Section 3.6(a)(i) shall be effective at
the close of business on the date the stock split or combination occurs.
(ii) Adjustments for Certain Dividends and Distributions. If
the Maker shall at any time or from time to time after the Issuance Date, make
or issue or set a record date for the determination of holders of Common Stock
entitled to receive a dividend or other distribution payable in shares of Common
Stock, then, and in each event, the applicable Conversion Price in effect
immediately prior to such event shall be decreased as of the time of such
issuance or, in the event such record date shall have been fixed, as of the
close of business on such record date, by multiplying, the applicable Conversion
Price then in effect by a fraction:
(1) the numerator of which shall be the total number
of shares of Common Stock issued and outstanding immediately prior to the time
of such issuance or the close of business on such record date; and
(2) the denominator of which shall be the total
number of shares of Common Stock issued and outstanding immediately prior to the
time of such issuance or the close of business on such record date plus the
number of shares of Common Stock issuable in payment of such dividend or
distribution.
(iii) Adjustment for Other Dividends and Distributions. If the
Maker shall at any time or from time to time after the Issuance Date, make or
issue or set a record date for the determination of holders of Common Stock
entitled to receive a dividend or other distribution payable in other than
shares of Common Stock, then, and in each event,
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an appropriate revision to the applicable Conversion Price shall be made and
provision shall be made (by adjustments of the Conversion Price or otherwise) so
that the holders of this Note shall receive upon conversions thereof, in
addition to the number of shares of Common Stock receivable thereon, the number
of securities of the Maker which they would have received had this Note been
converted into Common Stock on the date of such event and had thereafter, during
the period from the date of such event to and including the Conversion Date,
retained such securities (together with any distributions payable thereon during
such period), giving application to all adjustments called for during such
period under this Section 3.6(a)(iii) with respect to the rights of the holders
of this Note; provided, however, that if such record date shall have been fixed
and such dividend is not fully paid or if such distribution is not fully made on
the date fixed therefor, the Conversion Price shall be adjusted pursuant to this
paragraph as of the time of actual payment of such dividends or distributions.
(iv) Adjustments for Reclassification, Exchange or
Substitution. If the Common Stock issuable upon conversion of this Note at any
time or from time to time after the Issuance Date shall be changed to the same
or different number of shares of any class or classes of stock, whether by
reclassification, exchange, substitution or otherwise (other than by way of a
stock split or combination of shares or stock dividends provided for in Sections
3.6(a)(i), (ii) and (iii), or a reorganization, merger, consolidation, or sale
of assets provided for in Section 3.6(a)(v)), then, and in each event, an
appropriate revision to the Conversion Price shall be made and provisions shall
be made (by adjustments of the Conversion Price or otherwise) so that the Holder
shall have the right thereafter to convert this Note into the kind and amount of
shares of stock and other securities receivable upon reclassification, exchange,
substitution or other change, by holders of the number of shares of Common Stock
into which such Note might have been converted immediately prior to such
reclassification, exchange, substitution or other change, all subject to further
adjustment as provided herein.
(v) Adjustments for Reorganization, Merger, Consolidation or
Sales of Assets. If at any time or from time to time after the Issuance Date
there shall be a capital reorganization of the Maker (other than by way of a
stock split or combination of shares or stock dividends or distributions
provided for in Section 3.6(a)(i), (ii) and (iii), or a reclassification,
exchange or substitution of shares provided for in Section 3.6(a)(iv)), or a
merger or consolidation of the Maker with or into another corporation where the
holders of outstanding voting securities prior to such merger or consolidation
do not own over fifty percent (50%) of the outstanding voting securities of the
merged or consolidated entity, immediately after such merger or consolidation,
or the sale of all or substantially all of the Maker's properties or assets to
any other person (an "Organic Change"), then as a part of such Organic Change,
(A) if the surviving entity in any such Organic Change is a public company that
is registered pursuant to the Securities Exchange Act of 1934, as amended, and
its common stock is listed or quoted on a national exchange or the OTC Bulletin
Board, an appropriate revision to the Conversion Price shall be made and
provision shall be made (by adjustments of the Conversion Price or otherwise) so
that the Holder shall have the right thereafter to convert such Note into the
kind and amount of shares of stock and other securities or property of the Maker
or any successor corporation resulting from Organic Change, and (B) if the
surviving entity in any such Organic Change is not a public company that is
registered pursuant to the Securities Exchange Act of 1934, as amended, or its
common stock is not listed or quoted on a national exchange or the OTC Bulletin
Board, the Holder shall have the right to demand prepayment pursuant to Section
3.7(b) hereof. In any such case, appropriate adjustment shall be made in the
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application of the provisions of this Section 3.6(a)(v) with respect to the
rights of the Holder after the Organic Change to the end that the provisions of
this Section 3.6(a)(v) (including any adjustment in the applicable Conversion
Price then in effect and the number of shares of stock or other securities
deliverable upon conversion of this Note and the Other Notes) shall be applied
after that event in as nearly an equivalent manner as may be practicable.
(vi) Adjustments for Issuance of Additional Shares of Common
Stock.
(1) In the event the Maker, shall, at any time, from
time to time, issue or sell any shares of additional shares of common stock
(otherwise than as provided in the foregoing subsections (i) through (v) of this
Section 3.6(a) or pursuant to Common Stock Equivalents (hereafter defined)
granted or issued prior to the Issuance Date) ("Additional Shares of Common
Stock"), at a price per share less than the Conversion Price then in effect or
without consideration, then the Conversion Price upon each such issuance shall
be adjusted to that price (rounded to the nearest cent) determined by
multiplying each of the Conversion Price then in effect by a fraction:
(A) the numerator of which shall be equal to
the sum of (x) the number of shares of Common Stock outstanding immediately
prior to the issuance of such Additional Shares of Common Stock plus (y) the
number of shares of Common Stock (rounded to the nearest whole share) which the
aggregate consideration for the total number of such Additional Shares of Common
Stock so issued would purchase at a price per share equal to the Conversion
Price then in effect, and
(B) the denominator of which shall be equal
to the number of shares of Common Stock outstanding immediately after the
issuance of such Additional Shares of Common Stock.
(2) The provisions of paragraph (1) of Section
3.6(a)(vi) shall not apply to any issuance of Additional Shares of Common Stock
for which an adjustment is provided under Section 3.6(a)(vii). No adjustment of
the number of shares of Common Stock for which this Note shall be convertible
shall be made under paragraph (1) of Section 3.6(a)(vi) upon the issuance of any
Additional Shares of Common Stock which are issued pursuant to the exercise of
any Common Stock Equivalents, if any such adjustment shall previously have been
made upon the issuance of such Common Stock Equivalents pursuant to Section
3.6(a)(vii).
(vii) Issuance of Common Stock Equivalents. If the Maker, at
any time after the Issuance Date, shall issue any securities convertible into or
exchangeable for, directly or indirectly, Common Stock ("Convertible
Securities"), other than the Notes, or any rights or warrants or options to
purchase any such Common Stock or Convertible Securities, shall be issued or
sold (collectively, the "Common Stock Equivalents") and the aggregate of the
price per share for which Additional Shares of Common Stock may be issuable
thereafter pursuant to such Common Stock Equivalent, plus the consideration
received by the Maker for issuance of such Common Stock Equivalent divided by
the number of shares of Common Stock issuable pursuant to such Common Stock
Equivalent (the "Aggregate Per Common Share Price") shall be less than the
applicable Conversion Price then in effect, or if, after any such issuance of
Common Stock Equivalents, the price per share for which Additional Shares of
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Common Stock may be issuable thereafter is amended or adjusted, and such price
as so amended shall make the Aggregate Per Share Common Price be less than the
applicable Conversion Price in effect at the time of such amendment or
adjustment, then the applicable Conversion Price upon each such issuance or
amendment shall be adjusted as provided in the first sentence of subsection (vi)
of this Section 3.6(a) on the basis that (1) the maximum number of Additional
Shares of Common Stock issuable pursuant to all such Common Stock Equivalents
shall be deemed to have been issued (whether or not such Common Stock
Equivalents are actually then exercisable, convertible or exchangeable in whole
or in part) as of the earlier of (A) the date on which the Maker shall enter
into a firm contract for the issuance of such Common Stock Equivalent, or (B)
the date of actual issuance of such Common Stock Equivalent. No adjustment of
the applicable Conversion Price shall be made under this subsection (vii) upon
the issuance of any Convertible Security which is issued pursuant to the
exercise of any warrants or other subscription or purchase rights therefor, if
any adjustment shall previously have been made to the exercise price of such
warrants then in effect upon the issuance of such warrants or other rights
pursuant to this subsection (vii). No adjustment shall be made to the Conversion
Price upon the issuance of Common Stock pursuant to the exercise, conversion or
exchange of any Convertible Security or Common Stock Equivalent where an
adjustment to the Conversion Price was made as a result of the issuance or
purchase of any Convertible Security or Common Stock Equivalent.
(viii) Consideration for Stock. In case any shares of
Common Stock or any Common Stock Equivalents shall be issued or sold:
(1) in connection with any merger or
consolidation in which the Maker is the surviving corporation (other than any
consolidation or merger in which the previously outstanding shares of Common
Stock of the Maker shall be changed to or exchanged for the stock or other
securities of another corporation), the amount of consideration therefor shall
be, deemed to be the fair value, as determined reasonably and in good faith by
the Board of Directors of the Maker, of such portion of the assets and business
of the nonsurviving corporation as such Board may determine to be attributable
to such shares of Common Stock, Convertible Securities, rights or warrants or
options, as the case may be; or
(2) in the event of any consolidation or merger of
the Maker in which the Maker is not the surviving corporation or in which the
previously outstanding shares of Common Stock of the Maker shall be changed into
or exchanged for the stock or other securities of another corporation, or in the
event of any sale of all or substantially all of the assets of the Maker for
stock or other securities of any corporation, the Maker shall be deemed to have
issued a number of shares of its Common Stock for stock or securities or other
property of the other corporation computed on the basis of the actual exchange
ratio on which the transaction was predicated, and for a consideration equal to
the fair market value on the date of such transaction of all such stock or
securities or other property of the other corporation. If any such calculation
results in adjustment of the applicable Conversion Price, or the number of
shares of Common Stock issuable upon conversion of the Notes, the determination
of the applicable Conversion Price or the number of shares of Common Stock
issuable upon conversion of the Notes immediately prior to such merger,
consolidation or sale, shall be made after giving effect to such adjustment of
the number of shares of Common Stock issuable upon conversion of the Notes. In
the event Common Stock is issued with other shares or securities or other assets
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of the Maker for consideration which covers both, the consideration computed as
provided in this Section 3.6(viii) shall be allocated among such securities and
assets as determined in good faith by the Board of Directors of the Maker.
(b) Record Date. In case the Maker shall take record of the holders of
its Common Stock for the purpose of entitling them to subscribe for or purchase
Common Stock or Convertible Securities, then the date of the issue or sale of
the shares of Common Stock shall be deemed to be such record date.
(c) Certain Issues Excepted. Anything herein to the contrary
notwithstanding, the Maker shall not be required to make any adjustment to the
Conversion Price in connection with (i) securities issued (other than for cash)
in connection with a merger, acquisition, or consolidation, (ii) securities
issued pursuant to a bona fide firm underwritten public offering of the Maker's
securities, (iii) securities issued pursuant to the conversion or exercise of
convertible or excercisable securities issued or outstanding on or prior to the
date hereof or issued pursuant to the Purchase Agreement, (iv) the shares of
Common Stock issuable upon the exercise of Warrants, (v) securities issued in
connection with bona fide strategic license agreements, partnering arrangements
or other consulting services so long as such issuances are not for the purpose
of raising capital, (vi) Common Stock issued or the issuance or grants of
options or warrants to purchase Common Stock to any employer, officer, director
or advisor of the Company for a period of two (2) years following the Issuance
Date so long as the exercise price of such options or warrants is greater than
$0.75, (vii) any warrants issued to the placement agent and its designees for
the transactions contemplated by the Purchase Agreement, and (viii) the payment
of any accrued interest in shares of Common Stock pursuant to this Note or the
Other Notes, and (ix) securities issued to CNET Networks, Inc.
(d) No Impairment. The Maker shall not, by amendment of its Certificate
of Incorporation or through any reorganization, transfer of assets,
consolidation, merger, dissolution, issue or sale of securities or any other
voluntary action, avoid or seek to avoid the observance or performance of any of
the terms to be observed or performed hereunder by the Maker, but will at all
times in good faith, assist in the carrying out of all the provisions of this
Section 3.6 and in the taking of all such action as may be necessary or
appropriate in order to protect the Conversion Rights of the Holder against
impairment. In the event a Holder shall elect to convert any Notes as provided
herein, the Maker cannot refuse conversion based on any claim that such Holder
or any one associated or affiliated with such Holder has been engaged in any
violation of law, violation of an agreement to which such Holder is a party or
for any reason whatsoever, unless, an injunction from a court, or notice,
restraining and or adjoining conversion of all or of said Notes shall have
issued and the Maker posts a surety bond for the benefit of such Holder in an
amount equal to one hundred thirty percent (130%) of the amount of the Notes the
Holder has elected to convert, which bond shall remain in effect until the
completion of arbitration/litigation of the dispute and the proceeds of which
shall be payable to such Holder (as liquidated damages) in the event it obtains
judgment.
(e) Certificates as to Adjustments. Upon occurrence of each adjustment
or readjustment of the Conversion Price or number of shares of Common Stock
issuable upon conversion of this Note pursuant to this Section 3.6, the Maker at
its expense shall promptly compute such adjustment or readjustment in accordance
with the terms hereof and furnish to the Holder a certificate setting forth such
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adjustment and readjustment, showing in detail the facts upon which such
adjustment or readjustment is based. The Maker shall, upon written request of
the Holder, at any time, furnish or cause to be furnished to the Holder a like
certificate setting forth such adjustments and readjustments, the applicable
Conversion Price in effect at the time, and the number of shares of Common Stock
and the amount, if any, of other securities or property which at the time would
be received upon the conversion of this Note. Notwithstanding the foregoing, the
Maker shall not be obligated to deliver a certificate unless such certificate
would reflect an increase or decrease of at least one percent (1%) of such
adjusted amount.
(f) Issue Taxes. The Maker shall pay any and all issue and other taxes,
excluding federal, state or local income taxes, that may be payable in respect
of any issue or delivery of shares of Common Stock on conversion of this Note
pursuant thereto; provided, however, that the Maker shall not be obligated to
pay any transfer taxes resulting from any transfer requested by the Holder in
connection with any such conversion.
(g) Fractional Shares. No fractional shares of Common Stock shall be
issued upon conversion of this Note. In lieu of any fractional shares to which
the Holder would otherwise be entitled, the Maker shall pay cash equal to the
product of such fraction multiplied by the average of the Closing Bid Prices of
the Common Stock for the five (5) consecutive Trading Days immediately preceding
the Conversion Date.
(h) Reservation of Common Stock. The Maker shall at all times when this
Note shall be outstanding, reserve and keep available out of its authorized but
unissued Common Stock, such number of shares of Common Stock as shall from time
to time be sufficient to effect the conversion of this Note and all interest
accrued thereon; provided that the number of shares of Common Stock so reserved
shall at no time be less than one hundred fifty percent (150%) of the number of
shares of Common Stock for which this Note and all interest accrued thereon is
at any time convertible. The Maker shall, from time to time in accordance with
placeStateDelaware law, increase the authorized number of shares of Common Stock
if at any time the unissued number of authorized shares shall not be sufficient
to satisfy the Maker's obligations under this Section 3.6(h).
(i) Regulatory Compliance. If any shares of Common Stock to be reserved
for the purpose of conversion of this Note or any interest accrued thereon
require registration or listing with or approval of any governmental authority,
stock exchange or other regulatory body under any federal or state law or
regulation or otherwise before such shares may be validly issued or delivered
upon conversion, the Maker shall, at its sole cost and expense, in good faith
and as expeditiously as possible, endeavor to secure such registration, listing
or approval, as the case may be.
Section 3.7 Prepayment.
(a) Omitted.
(b) Prepayment Option Upon Major Transaction. In addition to all other
rights of the Holder contained herein, simultaneous with the occurrence of a
Major Transaction (as defined below), the Holder shall have the right, at the
Holder's option, to require the Maker to prepay in cash all or a portion of the
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Holder's Notes at a price equal to one hundred percent (100%) of the aggregate
principal amount of this Note plus all accrued and unpaid interest (the "Major
Transaction Prepayment Price"); provided that the Company shall have the sole
option to pay the Major Transaction Prepayment Price in cash or shares of Common
Stock. If the Holder elects to receive payment of the Major Transaction
Prepayment Price in shares of Common Stock, the price per share shall be based
upon the Conversion Price then in effect on the day preceding the date of
delivery of the Notice of Prepayment at Option of Holder Upon Major Transaction
(as hereafter defined) and the Holder shall have demand registration rights with
respect to such shares.
(c) Prepayment Option Upon Triggering Event. In addition to all other
rights of the Holder contained herein, after a Triggering Event (as defined
below), the Holder shall have the right, at the Holder's option, to require the
Maker to prepay all or a portion of this Note in cash at a price equal to one
hundred percent (100%) of the aggregate principal amount of this Note plus all
accrued and unpaid interest (the "Triggering Event Prepayment Price," and,
collectively with the Major Transaction Prepayment Price, the "Prepayment
Price").
(d) Intentionally Omitted.
(e) "Major Transaction." A "Major Transaction" shall be deemed to have
occurred at such time as any of the following events:
(i) the consolidation, merger or other business combination of
the Maker with or into another Person (as defined in Section 4.13
hereof) (other than (A) pursuant to a migratory merger effected solely
for the purpose of changing the jurisdiction of incorporation of the
Maker or (B) a consolidation, merger or other business combination in
which holders of the Maker's voting power immediately prior to the
transaction continue after the transaction to hold, directly or
indirectly, the voting power of the surviving entity or entities
necessary to elect a majority of the members of the board of directors
(or their equivalent if other than a corporation) of such entity or
entities).
(ii) the sale or transfer of more than fifty percent (50%) of
the Maker's assets (based on the fair market value as determined in
good faith by the Maker's Board of Directors) other than inventory in
the ordinary course of business in one or a related series of
transactions; or
(iii) closing of a purchase, tender or exchange offer made to
the holders of more than fifty percent (50%) of the outstanding shares
of Common Stock in which more than fifty percent (50%) of the
outstanding shares of Common Stock were tendered and accepted.
(f) "Triggering Event." A "Triggering Event" shall be deemed to have
occurred at such time as any of the following events:
(i) so long as this Note is outstanding, if registration under
Form S-8 is unavailable to the Holder for sale of the shares of Common
Stock, and such lapse or unavailability continues for a period of
twenty (20) consecutive Trading Days, and the shares of Common Stock
into which the Holder's Notes can be converted cannot be sold in the
public securities market pursuant to Rule 144(k) under the Securities
Act, provided that the cause of such lapse or unavailability is not due
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to factors primarily within the control of the Holder of the Notes; and
provided further that a Triggering Event shall not have occurred if and
to the extent the Maker exercised its rights set forth in Section 3(n)
of the Registration Rights Agreement;
(ii) the suspension from listing, without subsequent listing
on any one of, or the failure of the Common Stock to be listed on at
least one of the OTC Bulletin Board, the American Stock Exchange, the
Nasdaq National Market, the Nasdaq SmallCap Market or The New York
Stock Exchange, Inc., for a period of five (5) consecutive Trading
Days;
(iii) the Maker's notice to any holder of the Notes, including
by way of public announcement, at any time, of its inability to comply
(including for any of the reasons described in Section 3.8) or its
intention not to comply with proper requests for conversion of any
Notes into shares of Common Stock; or
(iv) the Maker's failure to comply with a Conversion Notice
tendered in accordance with the provisions of this Note within ten (10)
business days after the receipt by the Maker of the Conversion Notice;
or
(v) the Maker deregisters its shares of Common Stock and as a
result such shares of Common Stock are no longer publicly traded; or
(vi) the Maker consummates a "going private" transaction and
as a result the Common Stock is no longer registered under Sections
12(b) or 12(g) of the Exchange Act; or
(vii) the Maker consummates an underwritten public offering;
or
(viii) the Maker breaches any representation, warranty,
covenant or other term or condition of the Purchase Agreement, this
Note or any other agreement, document, certificate or other instrument
delivered in connection with the transactions contemplated thereby or
hereby, except to the extent that such breach would not have a Material
Adverse Effect (as defined in the Purchase Agreement) and except, in
the case of a breach of a covenant which is curable, only if such
breach continues for a period of a least ten (10) business days.
(g) Intentionally Omitted.
(h) Mechanics of Prepayment at Option of Holder Upon Major Transaction.
No sooner than fifteen (15) days nor later than ten (10) days prior to the
consummation of a Major Transaction, but not prior to the public announcement of
such Major Transaction, the Maker shall deliver written notice thereof via
facsimile and overnight courier ("Notice of Major Transaction") to the Holder of
this Note. At any time after receipt of a Notice of Major Transaction (or, in
the event a Notice of Major Transaction is not delivered at least ten (10) days
prior to a Major Transaction, at any time within ten (10) days prior to a Major
Transaction), any holder of the Notes then outstanding may require the Maker to
prepay, effective immediately prior to the consummation of such Major
Transaction, all of the holder's Notes then outstanding by delivering written
notice thereof via facsimile and overnight courier ("Notice of Prepayment at
Option of Holder Upon Major Transaction") to the Maker, which Notice of
Prepayment at Option of Holder Upon Major Transaction shall indicate (i) the
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principal amount of the Notes that such holder is electing to have prepaid and
(ii) the applicable Major Transaction Prepayment Price, as calculated pursuant
to Section 3.7(b) above.
(i) Mechanics of Prepayment at Option of Holder Upon Triggering Event.
Within two (2) business days after the occurrence of a Triggering Event, the
Maker shall deliver written notice thereof via facsimile and overnight courier
("Notice of Triggering Event") to each holder of the Notes. At any time after
the earlier of a holder's receipt of a Notice of Triggering Event and such
holder becoming aware of a Triggering Event, any holder of this Note and the
Other Notes then outstanding may require the Maker to prepay all of the Notes on
a pro rata basis by delivering written notice thereof via facsimile and
overnight courier ("Notice of Prepayment at Option of Holder Upon Triggering
Event") to the Maker, which Notice of Prepayment at Option of Holder Upon
Triggering Event shall indicate (i) the amount of the Note that such holder is
electing to have prepaid and (ii) the applicable Triggering Event Prepayment
Price, as calculated pursuant to Section 3.7(c) above. A holder shall only be
permitted to require the Maker to prepay the Note pursuant to Section 3.7 hereof
for the greater of a period of ten (10) days after receipt by such holder of a
Notice of Triggering Event or for so long as such Triggering Event is
continuing.
(j) Payment of Prepayment Price. Upon the Maker's receipt of a
Notice(s) of Prepayment at Option of Holder Upon Triggering Event or a Notice(s)
of Prepayment at Option of Holder Upon Major Transaction from any holder of the
Notes, the Maker shall immediately notify each holder of the Notes by facsimile
of the Maker's receipt of such Notice(s) of Prepayment at Option of Holder Upon
Triggering Event or Notice(s) of Prepayment at Option of Holder Upon Major
Transaction and each holder which has sent such a notice shall promptly submit
to the Maker such holder's certificates representing the Notes which such holder
has elected to have prepaid. The Maker shall deliver the applicable Triggering
Event Prepayment Price to such holder within five (5) business days after the
Maker's receipt of a Notice of Prepayment at Option of Holder Upon Triggering
Event and, in the case of a prepayment pursuant to Section 3.7(h), the Maker
shall deliver the applicable Major Transaction Prepayment Price immediately
prior to the consummation of the Major Transaction; provided that a holder's
original Note shall have been so delivered to the Maker; provided further that
if the Maker is unable to prepay all of the Notes to be prepaid, the Maker shall
prepay an amount from each holder of the Notes being prepaid equal to such
holder's pro-rata amount (based on the number of Notes held by such holder
relative to the number of Notes outstanding) of all Notes being prepaid. If the
Maker shall fail to prepay all of the Notes submitted for prepayment (other than
pursuant to a dispute as to the arithmetic calculation of the Prepayment Price),
in addition to any remedy such holder of the Notes may have under this Note and
the Purchase Agreement, the applicable Prepayment Price payable in respect of
such Notes not prepaid shall bear interest at the rate of two percent (2%) per
month (prorated for partial months) until paid in full. Until the Maker pays
such unpaid applicable Prepayment Price in full to a holder of the Notes
submitted for prepayment, such holder shall have the option (the "Void Optional
Prepayment Option") to, in lieu of prepayment, require the Maker to promptly
return to such holder(s) all of the Notes that were submitted for prepayment by
such holder(s) under this Section 3.7 and for which the applicable Prepayment
Price has not been paid, by sending written notice thereof to the Maker via
facsimile (the "Void Optional Prepayment Notice"). Upon the Maker's receipt of
such Void Optional Prepayment Notice(s) and prior to payment of the full
applicable Prepayment Price to such holder, (i) the Notice(s) of Prepayment at
Option of Holder Upon Triggering Event or the Notice(s) of Prepayment at Option
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of Holder Upon Major Transaction, as the case may be, shall be null and void
with respect to those Notes submitted for prepayment and for which the
applicable Prepayment Price has not been paid, (ii) the Maker shall immediately
return any Notes submitted to the Maker by each holder for prepayment under this
Section 3.7(j) and for which the applicable Prepayment Price has not been paid
and (iii) the Conversion Price of such returned Notes shall be adjusted to the
lesser of (A) the Conversion Price as in effect on the date on which the Void
Optional Prepayment Notice(s) is delivered to the Maker and (B) the lowest
Closing Bid Price during the period beginning on the date on which the Notice(s)
of Prepayment of Option of Holder Upon Major Transaction or the Notice(s) of
Prepayment at Option of Holder Upon Triggering Event, as the case may be, is
delivered to the Maker and ending on the date on which the Void Optional
Prepayment Notice(s) is delivered to the Maker; provided that no adjustment
shall be made if such adjustment would result in an increase of the Conversion
Price then in effect. A holder's delivery of a Void Optional Prepayment Notice
and exercise of its rights following such notice shall not effect the Maker's
obligations to make any payments which have accrued prior to the date of such
notice. Payments provided for in this Section 3.7 shall have priority to
payments to other stockholders in connection with a Major Transaction.
(k) Maker Prepayment Option. Upon the Maker receiving a written a
Notice of Conversion from the Holder, the Maker shall have five (5) Trading Days
following receipt of the Notice of Conversion to provide written notice to the
Holder of its intention to prepay in cash all of the outstanding principal
amount of this Note together with all accrued and unpaid interest thereon (the
"Maker's Prepayment Notice") at a price equal to one hundred twenty percent
(1020%) of the aggregate principal amount of this Note plus any accrued but
unpaid interest (the "Maker's Prepayment Price"). The Maker shall have thirty
(30) days to deliver the Maker's Prepayment Price to the Holder during which
time the Holder shall not convert this Note into shares of Common Stock;
provided, however, that if during the period between delivery of the Maker's
Prepayment Notice and the Maker's Prepayment Date (as defined below), the Holder
shall become entitled to deliver a Notice of Prepayment at Option of Holder Upon
Major Transaction or Notice of Prepayment at Option of Holder upon Triggering
Event, then the such rights of the Holder shall take precedence over the
previously delivered Maker Prepayment Notice. The Maker's Prepayment Notice
shall state the date of prepayment which date shall be within thirty (30) days
after the Maker has delivered the Maker's Prepayment Notice (the "Maker's
Prepayment Date"), the Maker's Prepayment Price and the principal amount of
Notes plus any accrued but unpaid interest to be prepaid by the Maker. The Maker
shall deliver the Maker's Prepayment Price on or prior to the Maker's Prepayment
Date. If the Maker fails to pay the Maker's Prepayment Price by the Maker's
Prepayment Date, the prepayment will be declared null and void, the Maker shall
lose its right to serve a Maker's Prepayment Notice pursuant to this Section
3.7(k) in the future.
Section 3.8 Inability to Fully Convert.
(a) Holder's Option if Maker Cannot Fully Convert. If, upon the Maker's
receipt of a Conversion Notice, the Maker cannot issue shares of Common Stock
registered for resale under from S-8 or other form of registration for any
reason, including, without limitation, because the Maker (w) does not have a
sufficient number of shares of Common Stock authorized and available or (x) is
otherwise prohibited by applicable law or by the rules or regulations of any
stock exchange, interdealer quotation system or other self-regulatory
organization with jurisdiction over the Maker or any of its securities from
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issuing all of the Common Stock which is to be issued to the Holder pursuant to
a Conversion Notice, then the Maker shall issue as many shares of Common Stock
as it is able to issue in accordance with the Holder's Conversion Notice and,
with respect to the unconverted portion of this Note, the Holder, solely at
Holder's option, can elect to:
(i) require the Maker to prepay that portion of this Note for
which the Maker is unable to issue Common Stock in accordance with the Holder's
Conversion Notice (the "Mandatory Prepayment") at a price per share equal to the
Triggering Event Prepayment Price as of such Conversion Date (the "Mandatory
Prepayment Price");
(ii) if the Maker's inability to fully convert is pursuant to
Section 3.8(a)(x) above, require the Maker to issue restricted shares of Common
Stock in accordance with such holder's Conversion Notice;
(iii) void its Conversion Notice and retain or have returned,
as the case may be, this Note that was to be converted pursuant to the
Conversion Notice (provided that the Holder's voiding its Conversion Notice
shall not effect the Maker's obligations to make any payments which have accrued
prior to the date of such notice);
(iv) exercise its Buy-In rights pursuant to and in accordance
with the terms and provisions of Section 3.3(c) of this Note.
In the event a Holder shall elect to convert any portion of its Notes as
provided herein, the Maker cannot refuse conversion based on any claim that such
Holder or any one associated or affiliated with such Holder has been engaged in
any violation of law, violation of an agreement to which such Holder is a party
or for any reason whatsoever, unless, an injunction from a court, on notice,
restraining and or adjoining conversion of all or of said Notes shall have been
issued and the Maker posts a surety bond for the benefit of such Holder in an
amount equal to 130% of the principal amount of the Notes the Holder has elected
to convert, which bond shall remain in effect until the completion of
arbitration/litigation of the dispute and the proceeds of which shall be payable
to such Holder in the event it obtains judgment.
(b) Mechanics of Fulfilling Holder's Election. The Maker shall
immediately send via facsimile to the Holder, upon receipt of a facsimile copy
of a Conversion Notice from the Holder which cannot be fully satisfied as
described in Section 3.8(a) above, a notice of the Maker's inability to fully
satisfy the Conversion Notice (the "Inability to Fully Convert Notice"). Such
Inability to Fully Convert Notice shall indicate (i) the reason why the Maker is
unable to fully satisfy such holder's Conversion Notice, (ii) the amount of this
Note which cannot be converted and (iii) the applicable Mandatory Prepayment
Price. The Holder shall notify the Maker of its election pursuant to Section
3.8(a) above by delivering written notice via facsimile to the Maker ("Notice in
Response to Inability to Convert").
(c) Payment of Prepayment Price. If the Holder shall elect to have its
Notes prepaid pursuant to Section 3.8(a)(i) above, the Maker shall pay the
Mandatory Prepayment Price to the Holder within thirty (30) days of the Maker's
receipt of the Holder's Notice in Response to Inability to Convert, provided
that prior to the Maker's receipt of the Holder's Notice in Response to
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Inability to Convert the Maker has not delivered a notice to the Holder stating,
to the satisfaction of the Holder, that the event or condition resulting in the
Mandatory Prepayment has been cured and all Conversion Shares issuable to the
Holder can and will be delivered to the Holder in accordance with the terms of
this Note. If the Maker shall fail to pay the applicable Mandatory Prepayment
Price to the Holder on the date that is one (1) business day following the
Maker's receipt of the Holder's Notice in Response to Inability to Convert
(other than pursuant to a dispute as to the determination of the arithmetic
calculation of the Prepayment Price), in addition to any remedy the Holder may
have under this Note and the Purchase Agreement, such unpaid amount shall bear
interest at the rate of two percent (2%) per month (prorated for partial months)
until paid in full. Until the full Mandatory Prepayment Price is paid in full to
the Holder, the Holder may (i) void the Mandatory Prepayment with respect to
that portion of the Note for which the full Mandatory Prepayment Price has not
been paid, (ii) receive back such Note, and (iii) require that the Conversion
Price of such returned Note be adjusted to the lesser of (A) the Conversion
Price as in effect on the date on which the Holder voided the Mandatory
Prepayment and (B) the lowest Closing Bid Price during the period beginning on
the Conversion Date and ending on the date the Holder voided the Mandatory
Prepayment.
(d) Pro-rata Conversion and Prepayment. In the event the Maker receives
a Conversion Notice from more than one holder of the Notes on the same day and
the Maker can convert and prepay some, but not all, of the Notes pursuant to
this Section 3.8, the Maker shall convert and prepay from each holder of the
Notes electing to have its Notes converted and prepaid at such time an amount
equal to such holder's pro-rata amount (based on the principal amount of the
Notes held by such holder relative to the principal amount of the Notes
outstanding) of all the Notes being converted and prepaid at such time.
Section 3.9 No Rights as Shareholder. Nothing contained in this Note
shall be construed as conferring upon the Holder, prior to the conversion of
this Note, 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 other rights
as a shareholder of the Maker.
ARTICLE IV
MISCELLANEOUS
-------------
Section 4.1 Notices. Any notice, demand, request, waiver or other
communication required or permitted to be given hereunder shall be in writing
and shall be effective (a) upon hand delivery, telecopy or facsimile at the
address or number designated in the Purchase Agreement (if delivered on a
business day during normal business hours where such notice is to be received),
or the first business day following such delivery (if delivered other than on a
business day during normal business hours where such notice is to be received)
or (b) on the second business day following the date of mailing by express
courier service, fully prepaid, addressed to such address, or upon actual
receipt of such mailing, whichever shall first occur. The Maker will give
written notice to the Holder at least ten (10) days prior to the date on which
the Maker takes a record (x) with respect to any dividend or distribution upon
the Common Stock, (y) with respect to any pro rata subscription offer to holders
of Common Stock or (z) for determining rights to vote with respect to any
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Organic Change, dissolution, liquidation or winding-up and in no event shall
such notice be provided to such holder prior to such information being made
known to the public. The Maker will also give written notice to the Holder at
least ten (10) days prior to the date on which any Organic Change, dissolution,
liquidation or winding-up will take place and in no event shall such notice be
provided to the Holder prior to such information being made known to the public.
The Maker shall promptly notify the Holder of this Note of any notices sent or
received, or any actions taken with respect to the Other Notes.
Section 4.2 Governing Law. This Note shall be governed by and construed
in accordance with the internal laws of the State of placeStateNew York, without
giving effect to any of the conflicts of law principles which would result in
the application of the substantive law of another jurisdiction. This Note shall
not be interpreted or construed with any presumption against the party causing
this Note to be drafted.
Section 4.3 Headings. Article and section headings in this Note are
included herein for purposes of convenience of reference only and shall not
constitute a part of this Note for any other purpose.
Section 4.4 Remedies, Characterizations, Other Obligations, Breaches
and Injunctive Relief. The remedies provided in this Note shall be cumulative
and in addition to all other remedies available under this Note, at law or in
equity (including, without limitation, a decree of specific performance and/or
other injunctive relief), no remedy contained herein shall be deemed a waiver of
compliance with the provisions giving rise to such remedy and nothing herein
shall limit a holder's right to pursue actual damages for any failure by the
Maker to comply with the terms of this Note. Amounts set forth or provided for
herein with respect to payments, conversion and the like (and the computation
thereof) shall be the amounts to be received by the holder thereof and shall
not, except as expressly provided herein, be subject to any other obligation of
the Maker (or the performance thereof). The Maker acknowledges that a breach by
it of its obligations hereunder will cause irreparable and material harm to the
Holder and that the remedy at law for any such breach may be inadequate.
Therefore the Maker agrees that, in the event of any such breach or threatened
breach, the Holder shall be entitled, in addition to all other available rights
and remedies, at law or in equity, to seek and obtain such equitable relief,
including but not limited to an injunction restraining any such breach or
threatened breach, without the necessity of showing economic loss and without
any bond or other security being required.
Section 4.5 Enforcement Expenses. The Maker agrees to pay all costs and
expenses of enforcement of this Note, including, without limitation, reasonable
attorneys' fees and expenses.
Section 4.6 Binding Effect. The obligations of the Maker and the Holder
set forth herein shall be binding upon the successors and assigns of each such
party, whether or not such successors or assigns are permitted by the terms
hereof.
Section 4.7 Amendments. This Note may not be modified or amended in any
manner except in writing executed by the Maker and the Holder.
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Section 4.8 Compliance with Securities Laws. The Holder of this Note
acknowledges that this Note is being acquired solely for the Holder's own
account and not as a nominee for any other party, and for investment, and that
the Holder shall not offer, sell or otherwise dispose of this Note. This Note
and any Note issued in substitution or replacement therefor shall be stamped or
imprinted with a legend in substantially the following form:
"THIS NOTE AND THE SHARES OF COMMON STOCK ISSUABLE UPON
CONVERSION HEREOF HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), OR APPLICABLE
STATE SECURITIES LAWS, AND MAY NOT BE SOLD OR TRANSFERRED IN
THE ABSENCE OF SUCH REGISTRATION OR RECEIPT BY THE MAKER OF AN
OPINION OF COUNSEL IN THE FORM, SUBSTANCE AND SCOPE REASONABLY
SATISFACTORY TO THE MAKER THAT THIS NOTE AND THE SHARES OF
COMMON STOCK ISSUABLE UPON CONVERSION HEREOF HAVE MAY BE SOLD,
TRANSFERRED, HYPOTHECATED OR OTHERWISE DISPOSED OF, UNDER AN
EXEMPTION FROM REGISTRATION UNDER THE ACT AND SUCH STATE
SECURITIES LAWS."
Section 4.9 Consent to Jurisdiction. Each of the Maker and the Holder
(i) hereby irrevocably submits to the exclusive jurisdiction of the United
States District Court sitting in the Southern District of New York and the
courts of the State of New York located in New York county for the purposes of
any suit, action or proceeding arising out of or relating to this Note and (ii)
hereby waives, and agrees not to assert in any such suit, action or proceeding,
any claim that it is not personally subject to the jurisdiction of such court,
that the suit, action or proceeding is brought in an inconvenient forum or that
the venue of the suit, action or proceeding is improper. Each of the Maker and
the Holder consents to process being served in any such suit, action or
proceeding by mailing a copy thereof to such party at the address in effect for
notices to it under the Purchase Agreement and agrees that such service shall
constitute good and sufficient service of process and notice thereof. Nothing in
this Section 4.9 shall affect or limit any right to serve process in any other
manner permitted by law. Each of the Maker and the Holder hereby agree that the
prevailing party in any suit, action or proceeding arising out of or relating to
this Note shall be entitled to reimbursement for reasonable legal fees from the
non-prevailing party.
Section 4.10 Parties in Interest. This Note shall be binding upon,
inure to the benefit of and be enforceable by the Maker, the Holder and their
respective successors and permitted assigns.
Section 4.11 Failure or Indulgence Not Waiver. No failure or delay on
the part of the Holder in the exercise of any power, right or privilege
hereunder shall operate as a waiver thereof, nor shall any single or partial
exercise of any such power, right or privilege preclude other or further
exercise thereof or of any other right, power or privilege.
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Section 4.12 Maker Waivers. Except as otherwise specifically provided
herein, the Maker and all others that may become liable for all or any part of
the obligations evidenced by this Note, hereby waive presentment, demand, notice
of nonpayment, protest and all other demands' and notices in connection with the
delivery, acceptance, performance and enforcement of this Note, and do hereby
consent to any number of renewals of extensions of the time or payment hereof
and agree that any such renewals or extensions may be made without notice to any
such persons and without affecting their liability herein and do further consent
to the release of any person liable hereon, all without affecting the liability
of the other persons, firms or Maker liable for the payment of this Note, AND DO
HEREBY WAIVE TRIAL BY JURY.
(a) No delay or omission on the part of the Holder in exercising its
rights under this Note, or course of conduct relating hereto, shall operate as a
waiver of such rights or any other right of the Holder, nor shall any waiver by
the Holder of any such right or rights on any one occasion be deemed a waiver of
the same right or rights on any future occasion.
(b) THE MAKER ACKNOWLEDGES THAT THE TRANSACTION OF WHICH THIS NOTE IS A
PART IS A COMMERCIAL TRANSACTION, AND TO THE EXTENT ALLOWED BY APPLICABLE LAW,
HEREBY WAIVES ITS RIGHT TO NOTICE AND HEARING WITH RESPECT TO ANY PREJUDGMENT
REMEDY WHICH THE HOLDER OR ITS SUCCESSORS OR ASSIGNS MAY DESIRE TO USE.
Section 4.13 Definitions. For the purposes hereof, the following terms
shall have the following meanings:
"Person" means an individual or a corporation, partnership, trust,
incorporated or unincorporated association, joint venture, limited liability
company, joint stock company, government (or an agency or political subdivision
thereof) or other entity of any kind.
"Trading Day" means (a) a day on which the Common Stock is traded on
the OTC Bulletin Board, or (b) if the Common Stock is not traded on the OTC
Bulletin Board, a day on which the Common Stock is quoted in the
over-the-counter market as reported by the National Quotation Bureau
Incorporated (or any similar organization or agency succeeding its functions of
reporting prices); provided, however, that in the event that the Common Stock is
not listed or quoted as set forth in (a) or (b) hereof, then Trading Day shall
mean any day except Saturday, Sunday and any day which shall be a legal holiday
or a day on which banking institutions in the State of New York are authorized
or required by law or other government action to close.
FINANCIALCONTENT, INC.
By: /s/ Wing Yu
--------------------------
Name: Wing Yu
Title: CEO
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EXHIBIT A
WIRE INSTRUCTIONS
Payee: _______________________________________________________
Bank: _______________________________________________________
Address: _____________________________________________________
--------------------------------------------------
Bank No.: ____________________________________________________
Account No.: ________________________________________________
Account Name: ________________________________________________
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FORM OF
NOTICE OF CONVERSION
(To be Executed by the Holder in order to Convert the Note)
The undersigned hereby irrevocably elects to convert $ ________________ of the
principal amount of the above Note No._____ into shares of Common Stock of
FinancialContent, Inc. (the "Maker") according to the conditions hereof, as of
the date written below.
Date of Conversion _______________________________________________________
Applicable Conversion Price ______________________________________________
Number of shares of Common Stock beneficially owned or deemed beneficially owned
by the Holder on the Date of Conversion: _________________________
Signature_________________________________________________________
[Name]
Address:__________________________________________________________
__________________________________________________________
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