EXHIBIT 10.80
THIS NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933 (THE "ACT")
OR ANY APPLICABLE STATE SECURITIES LAWS. IT MAY NOT BE CONVERTED, SOLD, OFFERED
FOR SALE, PLEDGED OR HYPOTHECATED IN THE ABSENCE OF A REGISTRATION STATEMENT IN
EFFECT WITH RESPECT TO THE SECURITIES UNDER SUCH ACT OR AN OPINION OF COUNSEL
SATISFACTORY TO THE COMPANY THAT SUCH REGISTRATION IS NOT REQUIRED.
SECURED CONVERTIBLE NOTE
$2,691,263.36 King of Prussia, Pennsylvania
FOR VALUE RECEIVED, the undersigned, SEDONA CORPORATION, a Pennsylvania
corporation ("Maker"), promises to pay to the order of Xxxxx X. Xxx ("Holder"),
with the address of 00000 Xxxxxxx Xxxxxx Xxxxx X-0, Xxxxx Xxxxx, Xxxxxxxxx
00000, the principal sum of TWO MILLION SIX HUNDRED NINETY ONE THOUSAND TWO
HUNDRED SIXTY THREE 36/100 dollars ($2,691,263.36) ("Loan"), together with
interest thereon at the rate of eight percent (8%) per annum from the date
hereof until the earlier of maturity or the date the balance shall be paid in
full (this "Note"); provided that Holder shall be entitled at any time during
the term of the Loan to convert the then outstanding balance of the Loan into
shares of Common Stock at a price of $0.14 per share (the "Conversion Price").
1. Definitions. The following definitions are applicable to the words,
phrases or terms used in this Note.
(a) The term "Common Stock" shall mean the Maker's common stock, par
value $0.001 per share.
(b) The term "Holder" shall mean and include all heirs, successors and
assigns of any owner or holder of this Note.
(c) The term "Maker" shall mean and include all makers, co-makers and
other parties signing on the face of this Note and their successors and assigns,
and the use of the plural number shall include the singular, and vice versa, and
the use of any gender shall include all genders.
(d) The term "Maturity" shall mean the date on which this Note shall
be due and payable in full, which date shall be October 23, 2008, unless
theretofore converted.
(e) The term "Notice of Exercise" shall mean the Notice of Exercise
substantially in the form of Exhibit A attached hereto.
(f) The term "Shares" shall mean all shares of Common Stock or other
securities issued or issuable pursuant to the exercise of the Notice of
Exercise.
2. Payment Terms. This Loan shall be effective commencing on October 23,
2006 (the "Effective Date") and continuing until two (2) years after the
Effective Date. The Maker shall be obligated to make one payment of all
outstanding principal and unpaid interest due thereon at Maturity. Unless
otherwise designated in writing, mailed or delivered to Maker, the place for
payment of the indebtedness evidenced by this Note shall be the Holder's
principal address as noted above. Payments received on this Note shall be
applied first to accrued interest, and the balance to principal.
3. Events of Default. The following shall constitute an Event of Default:
(a) In the event Maker shall fail (i) to pay any sums due hereunder
when due, or (ii) to observe or perform any term, condition, covenant,
representation or warranty set forth herein, when due or required, or within any
period of time permitted thereunder for cure of any such default or
non-performance.
(b) Defaults. In the event Maker fails to pay any invoice or other sum
which may be due and payable to Holder or Oak Harbor Investment Properties,
L.L.C ("Oak Harbor"), when due or required, according to the terms thereunder,
unless prior written waiver has been granted to Maker by Holder or Oak Harbor.
(c) Defaults. In the event Maker has received notice of default on any
financial obligation in excess of One Hundred Thousand Dollars ($100,000.00).
4. Acceleration of Maturity. Upon the happening of any Event of Default,
the unpaid principal and interest due Holder shall, at the option of the Holder,
become immediately due and payable.
5. Security. The obligation of the Maker pursuant to this Note is secured
by a lien and security interest in the collateral of the Maker as specifically
set forth in a Security Agreement of even date herewith (the "Security
Agreement").
6. Limitation on Interest. In no contingency, whether by reason of
acceleration of the Maturity of this Note or otherwise, shall the interest
contracted for, charged or received by Holder exceed the maximum amount
permissible under applicable law. If, from any circumstance whatsoever, interest
would otherwise be payable to Holder in excess of the maximum lawful amount, the
interest payable to Holder shall be reduced to the maximum amount permitted
under applicable law; and, if from any circumstance the Holder shall ever
receive anything of value deemed interest by applicable law in excess of the
maximum lawful amount, an amount equal to any excessive interest shall be
applied to the reduction of the principal of this Note and not to the payment of
interest, or if such excessive interest exceeds the unpaid balance of principal
of the Note such excess shall be refunded to Maker. All interest paid or agreed
to be paid to Holder shall, to the extent permitted by applicable law, be
amortized, prorated, allocated, and spread throughout the full period until
payment in full of the principal of the Note (including the period of any
renewal or extension thereof) so that interest thereon for such full period
shall not exceed the maximum amount permitted by applicable law.
7. Remedies; Nonwaiver. Failure of Holder to exercise any right or remedy
available to Holder upon the occurrence of an Event of Default hereunder shall
not constitute a waiver on the part of Holder of the right to exercise any such
right or remedy for that Event of Default or any subsequent Event of Default.
The exercise of any remedy by Holder shall not constitute an election of any
such remedy to the exclusion of any other remedies afforded Holder at law or in
equity, all such remedies being nonexclusive and cumulative. If an Event of
Default occurs under this Note and this Note is referred to an attorney at law
for collection, Maker agrees to pay all costs incurred by Xxxxxx incident to
collection up to a limit of 10% of the unpaid principal balance, including but
not limited to reasonable attorney fees, enforceable as a contract of indemnity,
plus all court costs.
8. Waivers. The Maker, endorsers, sureties and guarantors hereof, if any,
severally (i) waive presentment, protest and demand, (ii) waive notice of
protest, demand, dishonor and nonpayment of this Note, and (iii) expressly agree
that this Note may be renewed in whole or in part, or any nonpayment hereunder
may be extended, or a new note of different form may be substituted for this
Note or changes may be made in consideration of the extension of the Maturity
date hereof, or any combination thereof, from time to time, but, in any singular
event or any combination of such events, neither Maker nor any endorser, surety
or guarantor will be released from liability by reason of the occurrence of any
such event, nor shall Holder hereof be deemed by the occurrence of any such
event to have waived or surrendered, either in whole or in part, any right it
otherwise might have.
9. Option to Convert Note into Stock.
(a) The Maker represents that at any time during the term of the Loan,
Holder shall have the right and option to convert (the "Conversion Right") the
unpaid principal balance of this Note or any part thereof, together with all
accrued and unpaid interest (the "Outstanding Balance"), into shares of Maker's
voting Common Stock (the "Shares") having all rights inherent in common stock
under the Maker's Articles of Incorporation and Bylaws in effect as of the date
hereof. The number of Shares to be paid on conversion shall be equal to the
amount of the then Outstanding Principal Balance divided by the Conversion Price
or the adjusted share price conversion, if any, in compliance with the terms
contained in Section 9 herein. Interest shall be paid in cash, however; at the
sole election of the Holder, accrued interest may be converted into Shares at
the same share price as the principal.
(b) Maker shall use its best efforts to effectuate a registration
statement for all Shares that may be issued under this Note in accordance with
the terms of a Registration Rights Agreement (the "Registration Agreement")
executed as of the Effective Date.
10. Anti-Dilution.
(a) The Conversion Price for the Shares issued upon the conversion of the
Outstanding Balance on this Note shall be protected by the anti-dilution
provisions set forth in this Section 9, provided that such anti-dilution shall
not apply with respect to: (a) Maker's grant of restricted stock to employees or
directors (whether granted prior to or after the Effective Date) pursuant to the
terms and conditions of the Maker's 2000 Incentive Stock Option Plan; (b) the
Maker's grant of stock options to employees or directors or the exercise of
stock options (whether granted prior to or after the Effective Date) by current,
future, or past employee's or directors of the Maker; (c) the issuance of shares
for a consideration greater than Conversion Price in effect on the date of, and
immediately prior to, such issue, or (d) an issuance of shares for which the
Holder gives a written waiver of such adjustment.
(b) Except as otherwise provided in this Section, in the event that the
Maker shall at any time after the Effective Date, issue or sell any shares of
Common Stock, including shares held in the Maker's treasury and shares issued
upon the exercise of any options, rights or warrants to subscribe for shares of
Common Stock and Common Stock issued upon the direct or indirect conversion or
exchange of securities for Shares, (i) for consideration per share less than the
Conversion Price in effect immediately prior to such issuance or sale, or (ii)
without consideration, then forthwith upon such issuance or sale, the Conversion
Price (until another such issuance or sale) shall be reduced to the price
(calculated to the nearest full cent) determined by multiplying the Conversion
Price in effect immediately prior to such issuance or sale by a fraction, the
numerator of which shall be the sum of (1) the number of shares of Common Stock
outstanding immediately prior to such issuance or sale multiplied by the
Conversion Price immediately prior to such issuance or sale plus (2) the
consideration received by the Maker upon such issuance or sale, and the
denominator of which shall be the product of (x) the total number of shares of
Common Stock outstanding immediately after such issuance or sale, multiplied by
(y) the Conversion Price, immediately prior to such issuance or sale; provided,
however, that in no event shall the Conversion Price be adjusted pursuant to
this computation to an amount in excess of the Conversion Price in effect
immediately prior to such computation, except in the case of a combination of
outstanding shares of Common Stock, as provided by Section 9(e) hereof. In no
event shall the Conversion Price be increased.
(c) For the purposes of any computation to be made in accordance with this
Section, 9 the following shall be applicable:
(i) In the case of issuance or sale of shares of Common Stock for a
consideration part or all of which shall be cash, the amount of the cash
consideration therefore shall be deemed to be the amount of cash received by the
Maker for such shares (or, if shares of Common Stock are offered by the Maker
for subscription, the subscription price, or, if such securities shall be sold
to underwriters or dealers for public offering without subscription offering,
the public offering price) before deducting therefrom any compensation paid or
discount allowed in the sale, underwriting or purchase thereof by underwriters
or dealers or others performing similar services, or any expenses incurred in
connection therewith.
(ii) In the case of the issuance or sale (otherwise than as a dividend
or other distribution on any stock of the Maker) of shares of Common Stock for a
consideration part or all of which shall be other than cash, the amount of the
consideration therefore other than cash shall be deemed to be the fair market
value of such consideration as determined in good faith by the Board of
Directors of the Maker.
(iii) Shares of Common Stock issuable by way of dividend or other
distribution on any stock of the Maker shall be deemed to have been issued
immediately after the opening of business on the day following the record date
for the determination of shareholders entitled to
receive such dividend or other distribution and shall be deemed to have been
issued without consideration.
(iv) The reclassification of securities of the Maker other than shares
of Common Stock into securities including shares of Common Stock shall be deemed
to involve the issuance of such shares of Common Stock for a consideration other
than cash immediately prior to the close of business on the date fixed for the
determination of security holders entitled to receive such shares, and the value
of the consideration allocable to such shares of Common Stock shall be
determined as provided in subsection (ii) above.
(v) The number of shares of Common Stock at any one time outstanding
shall include the aggregate number of shares issued or issuable upon the
exercise of options, warrants or rights and upon the conversion or exchange of
convertible or exchangeable securities.
(d) In case the Maker shall at any time after the Effective Date subdivide
Common Stock, the Conversion Price shall forthwith be proportionately decreased.
(e) The Maker will at all times reserve and keep available out of its
authorized Common Stock or its treasury shares, solely for the purpose of issue
upon the conversion of this Note as herein provided, such number of shares of
Common Stock as shall then be issuable upon the conversion of this Note.
11. Mechanics of Conversion. Before the Holder shall be entitled to convert
this Note into Shares, the Holder shall surrender this Note, duly endorsed, at
the office of the Maker, and shall give written Notice of Exercise to the Maker
at its principal corporate office of the election to convert the same and shall
state therein the name or names in which the certificate or certificates for the
Shares are to be issued (the "Notice of Conversion"). The Maker shall, promptly
thereafter, issue and deliver to such persons at the address specified by the
Holder, a certificate or certificates for the Shares to which the Holder is
entitled. Such conversion shall be deemed to have been made immediately prior to
the close of business on the date of surrender of this Note, and the persons
entitled to receive the Shares issuable upon such conversion shall be treated
for all purposes as the record holder or holders of such Shares as of such date.
No fractional shares shall be issued upon conversion of this Note and the number
of Shares to be issued shall be rounded down to the nearest whole share. In the
event that Holder elects to convert only a portion of the Outstanding Balance
into Shares, Holder shall deliver to Maker a written acknowledgement of partial
payment.
12. Required Conversion of Outstanding Principal to Stock. In the event
that the Maker raises new capital from the sale of equity or debt securities
(excluding sums obtained from Oak Harbor Investment Properties, L.L.C. or its
affiliates, or from the Holder ), in an aggregate amount equal to or in excess
of Two Million ($2,000,000.00) Dollars (the "Financing"), the Maker may at its
option within ninety (90) days from the closing of the Financing convert up to
One Million Two Hundred Ten Thousand ($1,210,000.00) Dollars of the outstanding
principal due on the Note (the "Conversion Limit") into equity, by paying to the
Holder a cash payment equal to four percent of the principal converted. The
number of shares to be issued upon conversion shall be equal to the principal
balance converted divided by the Conversion Price as in effect immediately prior
to such
computation.
13. Prepayment. The Maker may prepay any part of or the entire balance of
this Note without penalty, provided the Holder does not elect in writing to
convert all or a designated part of the principal and interest of the Note to
equity within thirty (30) days after notice by the Maker of intent to prepay.
The Holder of this Note may demand prepayment in full if either of the following
conditions is met:
(a) Company receives funds from any source (i. e., including all
internal sources such as collections of accounts receivable as well as any
external sources of funds such as sales of securities), totaling in excess of
$3,500,000 from the date of this transaction.
(b) Company reaches current cash on hand in excess of $2,000,000.00
for a period exceeding 30 days.
14. Controlling Law. This Note shall be governed by and construed in
accordance with the laws of the State of Louisiana (other than its conflict of
laws principles) and the provisions of applicable federal law.
15. Shareholder Status. Nothing contained in this Note shall be construed
as conferring upon the Holder the right to vote or to receive dividends or to
consent or to receive notice as a shareholder in respect of any meeting of
shareholders for the election of directors of the Maker or of any other matter,
or any rights whatsoever as a shareholder of the Maker prior to conversion
hereof.
16. Notices. Any notice required or permitted under this Note shall be in
writing and shall be deemed to have been given on the date of delivery, if
personally delivered or delivered by courier, overnight express or other method
of verified delivery, to the party to whom notice is to be given, and addressed
to the addressee at the address of the addressee set forth herein, or the most
recent address, specified by written notice, given to the sender pursuant to
this paragraph.
17. Captions. The captions of the sections of this Note are for the purpose
of convenience only and are not intended to be a part of this Note and shall not
be deemed to modify, explain, enlarge or restrict any of the provisions hereof.
18. Remedies Not Exclusive. The remedies provided in this Note and the
Security Agreement or otherwise available to Holder for enforcing the payment of
the principal sum together with interest and the performance of the covenants,
conditions and agreements herein and therein contained are cumulative and
concurrent and may be pursued singly or successively or together at the sole
discretion of Holder, and may be exercised from time to time as often as
occasion therefore shall occur until Holder has been paid all sums due in full.
19. Severability. The terms and provisions of this Note are severable. In
the event of the unenforceability or invalidity of any one or more of the terms,
covenants, conditions or provisions of this Note under federal, state or other
applicable law, such unenforceability or invalidity shall not render any other
term, covenant, condition or provision hereunder unenforceable or invalid. In
the
event any waiver by Maker hereunder is prohibited by law, such waiver shall be
and be deemed to be deleted herefrom.
20. Integration. This Note together with the Registration Agreement and
Exchange Agreement between the Maker and the Holder of even date executed in
connection with the Loan ("Loan Documents") express the entire agreement between
the Maker and Holder concerning the subject matter hereof and no modification of
the Loan Documents shall be effective unless expressed in a mutually signed
writing. None of Xxxxxx's rights, powers, privileges or immunities under this
Note can be waived unless (and then only to the extent that) such waiver is
expressed in a writing signed by Xxxxxx. 21. Successors and Assigns. This Note
shall be binding upon the Maker, its successors and assigns, and shall inure to
the benefit of Xxxxxx, his heirs and assigns.
22. Time of Essence. Subject to the provisions hereof, time is of the
essence of each and every provision of this Note.
23. Saturdays, Sundays, Holidays, etc. If the last or appointed day for the
making of any payment, the taking of any action or the expiration of any right
required or granted herein shall be a Saturday, Sunday or a legal holiday, then
such payment may be made, such action may be taken or such right may be
exercised on the next succeeding day not a Saturday, Sunday or legal holiday.
24. Loss, Theft, Destruction or Mutilation of Note. Maker covenants that
upon receipt by the Maker of evidence reasonably satisfactory to it of the loss,
theft, destruction or mutilation of this Note, and in case of loss, theft or
destruction, of indemnity reasonably satisfactory to it (which shall not include
the posting of any bond), and upon surrender and cancellation of such Note if
mutilated, the Maker will make and deliver a new Note in the same form and dated
as of the date hereof, in lieu of such Note.
25. WAIVER OF JURY TRIAL.
MAKER AND HOLDER ACKNOWLEDGE AND AGREE THAT ANY CONTROVERSY WHICH MAY ARISE
UNDER THIS NOTE OR WITH RESPECT TO THE TRANSACTION CONTEMPLATED HEREBY WOULD BE
BASED UPON DIFFICULT AND COMPLEX ISSUES AND, THEREFORE, THE PARTIES AGREE THAT
ANY LAWSUIT ARISING OUT OF ANY SUCH CONTROVERSY SHALL BE TRIED IN A COURT OF
COMPETENT JURISDICTION BY A JUDGE SITTING WITHOUT A JURY. ACCORDINGLY, MAKER AND
HOLDER IRREVOCABLY WAIVE, TO THE MAXIMUM EXTENT NOT PROHIBITED BY LAW, ANY RIGHT
EITHER PARTY MAY NOW OR HEREAFTER HAVE TO A TRIAL BY JURY WITH RESPECT TO ANY
LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF OR IN CONNECTION WITH THIS NOTE
OR ANY OF THE LOAN DOCUMENTS.
26. JURISDICTION AND VENUE.
MAKER XXXXXX AGREES THAT ALL ACTIONS FOR PROCEEDINGS INITIATED BY MAKER AND
ARISING DIRECTLY OR INDIRECTLY OUT OF THE LOAN DOCUMENTS
SHALL BE LITIGATED IN THE COURTS OF THE STATE OF LOUISIANA, OR THE UNITED STATES
DISTRICT COURT STATE OF LOUISIANA, OR IN ANY OTHER COURT IN WHICH HOLDER SHALL
INITIATE SUCH ACTION, TO THE EXTENT SUCH COURT HAS JURISDICTION. MAKER HEREBY
EXPRESSLY SUBMITS AND CONSENTS IN ADVANCE TO SUCH JURISDICTION IN ANY ACTION OR
PROCEEDING COMMENCED BY HOLDER IN ANY OF SUCH COURTS AND HEREBY WAIVES PERSONAL
SERVICE OF THE SUMMONS AND COMPLAINT, OR OTHER PROCESS OR PAPERS ISSUED THEREIN,
AND AGREES THAT SERVICE OF SUCH SUMMONS AND COMPLAINT OR OTHER PROCESS OR PAPERS
MAY BE MADE BY REGISTERED OR CERTIFIED MAIL ADDRESSED TO THE MAKER AT THE
ADDRESS TO WHICH NOTICES ARE TO BE SENT PURSUANT TO THIS NOTE. MAKER WAIVES ANY
CLAIM THAT PHILADELPHIA COUNTY,
IF LOUISIANA IS AN INCONVENIENT FORUM OR AN IMPROPER FORUM BASED ON LACK OF
VENUE. SHOULD MAKER, AFTER BEING SO SERVED, FAIL TO APPEAR OR ANSWER TO ANY
SUMMONS, COMPLAINT, PROCESS OR PAPERS SO SERVED WITHIN THE NUMBER OF DAYS
PRESCRIBED BY LAW AFTER THE MAILING THEREOF, MAKER SHALL BE DEEMED IN DEFAULT
AND AN ORDER AND/OR JUDGMENT MAY BE ENTERED BY HOLDER AGAINST MAKER AS DEMANDED
OR PRAYED.
IN WITNESS WHEREOF and intending to be legally bound hereby, Xxxxx has duly
executed this Note as of this the 23th day of October, 2006.
Maker's Address: MAKER:
0000 Xxxx Xxxxx Xxxxxx, 0xx xxxxx XXXXXX XXXXXXXXXXX
Xxxx xx Xxxxxxx, XX 00000
----------------------------------------
By: Xxxxx X. Xxxxxx
Chief Executive Officer
EXHIBIT A
NOTICE OF EXERCISE
TO: SEDONA CORPORATION
(1) The undersigned hereby elects to purchase ________________ shares of
Common Stock (the "Common Stock"), of SEDONA CORPORATION pursuant to the terms
of the attached Convertible Note dated October 23rd, 2006 between Sedona
Corporation, as Maker, and XXXXX X. XXX, as Holder (the "Note") and tenders
herewith [THE ORIGINAL NOTE] [AN ACKNOWLEDGEMENT OF PARTIAL PAYMENT OF THE NOTE]
together with all applicable transfer taxes.
Please issue a certificate or certificates representing said shares of
Common Stock in the name of the undersigned or in such other name as is
specified below:
