LOAN MODIFICATION AGREEMENT
This Loan Modification Agreement (this “Agreement”) is made and entered into effective as of February 25, 2011, by and between CyberDefender Corporation, a Delaware corporation (the “Company”), and GR Match, LLC, a Delaware limited liability company (the “Lender”).
ARTICLE I.
“Action” shall have the meaning ascribed to such term in Section 3.1(j).
“Affiliate” means any Person that, directly or indirectly through one or more intermediaries, controls or is controlled by or is under common control with a Person, as such terms are used in and construed under Rule 144 under the Securities Act.
“Amended and Restated Note” means the Amended and Restated Nine Percent (9%) Secured Convertible Promissory Note in the form of Exhibit A attached hereto due, subject to the terms therein, March 31, 2012, issued by the Company to the Lender pursuant to this Agreement.
“Business Day” means any day except Saturday, Sunday, any day which is a federal legal holiday in the United States or any day on which banking institutions in the State of New York are authorized or required by law or other governmental action to close and, upon the Company becoming listed or quoted on a Trading Market, except any day that the Common Stock is not traded on the Trading Market.
“Change of Control Transaction” shall have the meaning given to such term in the Amended and Restated Note.
“Closing” means the closing of the transactions contemplated by this Agreement and the issuance of the Amended and Restated Note.
“Closing Date” means the Business Day when all of the Loan Documents have been executed and delivered by the Company and the Lender, and all conditions precedent to the parties’ respective obligations to effect the Closing have been satisfied or waived.
“Commission” means the United States Securities and Exchange Commission.
“Common Stock” means the common stock of the Company, par value $0.001 per share, and any other class of securities into which such securities may hereafter be reclassified or changed into.
“Common Stock Equivalents” means any securities of the Company which would entitle the holder thereof to acquire at any time Common Stock, including, without limitation, any debt, preferred stock, rights, options, warrants or other instrument that is at any time convertible into or exercisable or exchangeable for, or otherwise entitles the holder thereof to receive, Common Stock.
“Conversion Price” shall have the meaning ascribed to such term in the Amended and Restated Note.
“ERISA” means the Employee Retirement Income Security Act of 1974, and any regulations or rulings issued pursuant thereto, as amended or replaced and as in effect from time to time.
“Exchange Act” means the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder.
“Fifth Amendment to Media and Marketing Services Agreement” means that certain Fifth Amendment to the Media and Marketing Services Agreement in the form attached hereto and made part hereof as Exhibit B.
“Fundamental Transaction” shall have the meaning given to such term in the Amended and Restated Note.
“GAAP” shall have the meaning ascribed to such term in Section 3.1(h).
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“Indebtedness” shall mean (a) any liabilities for borrowed money or amounts owed (other than trade accounts payable that are incurred in the ordinary course of business and that are not more than one hundred twenty (120) days past due), (b) all guaranties, endorsements and other contingent obligations in respect of Indebtedness of others, whether or not the same are or should be reflected in the Company's balance sheet (or the notes thereto), except guaranties by endorsement of negotiable instruments for deposit or collection or similar transactions in the ordinary course of business; and (c) the present value of any lease payments due
under leases required to be capitalized in accordance with GAAP.
“Indemnified Party” shall have the meaning assigned to such term in Section 4.9(c).
“Indemnifying Party” shall have the meaning assigned to such term in Section 4.9(c).
“Intellectual Property Rights” shall have the meaning assigned to such term in Section 3.1(m)(i).
“Liens” means a lien, charge, security interest, encumbrance, right of first refusal, preemptive right or other restriction.
“Loan Documents” means this Agreement, the Security Agreement, the Amended and Restated Note, the Second Amendment, and the Fifth Amendment to Media and Marketing Services Agreement.
“Losses” shall have the meaning assigned to such term in Section 4.9(a).
“Material Adverse Effect” shall have the meaning assigned to such term in Section 3.1(b).
“Maximum Rate” shall have the meaning ascribed to such term in Section 6.16.
“Note Shares” means the shares of Common Stock issuable upon conversion of the Amended and Restated Note, including any shares of Common Stock issued in payment of interest thereunder.
“Outstanding Indebtedness” shall mean the outstanding principal balance of the Revolving Credit Note, together with all accrued but unpaid interest earned thereon through the Closing Date (as defined below), the repayment fee contemplated in Section 2(d) of the Revolving Credit Note, and all other amounts owing pursuant to the Revolving Credit Loan Documents as of the Closing Date.
“Permitted Indebtedness” shall have the meaning given to such term in the Security Agreement.
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“Permitted Lien” shall have the meaning given to such term in the Security Agreement.
“Person” means an individual or corporation, partnership, trust, incorporated or unincorporated association, joint venture, limited liability company, joint stock company, government (or an agency or subdivision thereof) or other entity of any kind.
“Proceeding” means an action, claim, suit, investigation or proceeding (including, without limitation, an investigation or partial proceeding, such as a deposition), whether commenced or threatened.
"Property" means any interest in any kind of property or asset, whether real, personal or mixed, or tangible or intangible.
“Registration Statement” means a registration statement covering the resale of the Note Shares filed with the Commission pursuant to the Company’s obligations under Section 4.6 of this Agreement.
“Required Minimum” means, as of any date, the maximum aggregate number of shares of Common Stock then issued or potentially issuable in the future pursuant to the Loan Documents, including any Note Shares (including Note Shares issuable as payment of interest), ignoring any conversion or exercise limits set forth therein.
“Restatement 8-K” shall have the meaning ascribed to such term in Section 3.1(h).
“Revolving Credit Loan Agreement” means that certain Revolving Credit Loan Agreement, dated December 7, 2010 to be effective as of December 3, 2010, by and between the Lender and the Company.
“Revolving Credit Loan Documents” means the Revolving Credit Loan Agreement, the Security Agreement and the Revolving Credit Note.
“Revolving Credit Note” means that certain Revolving Credit Note in the principal amount of Five Million Dollars ($5,000,000), dated December 3, 2010, issued by the Company in favor of the Lender.
“Rule 144” means Rule 144 promulgated by the Commission pursuant to the Securities Act, as such Rule may be amended from time to time, or any similar rule or regulation hereafter adopted by the Commission having substantially the same effect as such Rule.
“SEC Documents” shall have the meaning ascribed to such term in Section 3.1(h).
“Second Amendment” means that certain Second Amendment to the Senior Promissory Note in the form attached hereto and made part hereof as Exhibit C.
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“Securities” means the Amended and Restated Note and the Note Shares.
“Securities Act” means the Securities Act of 1933, as amended, and the rules and regulations promulgated hereunder.
“Security Agreement” means that certain Security Agreement, dated December 7, 2010 to be effective as of December 3, 2010, granted by the Company in favor of the Lender.
“Senior Business Advisor” shall have the meaning ascribed to such term in Section 4.11(a).
“Senior Loan Agreement” means that certain Loan and Securities Purchase Agreement, dated as of March 31, 2010, by and between CyberDefender Corporation, a California corporation (as predecessor in interest to the Company) and the Lender, as amended.
“Senior Loan Documents” means, collectively, (i) the Senior Promissory Note, (ii) Senior Loan Agreement, and (iii) that certain Security Agreement, dated as of March 31, 2010, granted by the Company in favor of the Lender.
“Senior Promissory Note” means that certain 9% Secured Convertible Promissory Amended and Restated Note, dated March 31, 2010, issued by CyberDefender Corporation, a California corporation (as predecessor in interest to the Company) in favor of the Lender, as amended.
“Trading Market” means the following markets or exchanges on which the Common Stock is listed or quoted for trading on the date in question: the American Stock Exchange, the Nasdaq Capital Market, the Nasdaq Global Market, the Nasdaq Global Select Market, the New York Stock Exchange or the OTC Bulletin Board.
“Waiver” means that certain Waiver in the form attached hereto and made part hereof as Exhibit D.
ARTICLE II.
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(a) At or prior to the Closing, the Company shall deliver to the Lender the following:
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(i)
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this Agreement, duly executed by the Company;
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(ii) the Amended and Restated Note, duly executed by the Company;
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(iii)
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the Second Amendment, duly executed by the Company;
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(iv) the Fifth Amendment to Media and Marketing Services Agreement, duly executed by the Company;
(v) the Waiver, duly executed by the Company; and
(vi) resolutions of the board of directors of the Company authorizing and approving the Company’s execution and delivery of the Loan Documents, the consummation of the transactions contemplated thereby and the issuance of the Note Shares, if applicable, in accordance with the terms and conditions hereof.
(b) At or prior to the Closing, the Lender shall deliver to the Company the following:
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(i)
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this Agreement, duly executed by the Lender;
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(ii) the Second Amendment, duly executed by the Lender;
(iii) the Fifth Amendment to Media and Marketing Services Agreement, duly executed by the Lender;
(iv) the Waiver, duly executed by the Lender; and
(v) the Revolving Credit Note, marked as cancelled.
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(a) The obligations of the Company to effect the Closing are subject to the following conditions being met:
(i) the accuracy in all material respects when made and on the Closing Date of the representations and warranties of the Lender contained herein;
(ii) all obligations, covenants and agreements of the Lender required to be performed at or prior to the Closing Date shall have been performed; and
(iii) the delivery by the Lender to the Company of the items set forth in Section 2.3(b) of this Agreement.
(b) The obligations of the Lender to effect the Closing are subject to the following conditions being met:
(i) the accuracy in all material respects when made and on the Closing Date of the representations and warranties of the Company contained herein;
(ii) all obligations, covenants and agreements of the Company required to be performed at or prior to the Closing Date shall have been performed;
(iii) the delivery by the Company to the Lender of the items set forth in Section 2.3(a) of this Agreement;
(iv) there shall have been no Material Adverse Effect with respect to the Company since the date hereof; and
(v) from the date hereof to the Closing Date, a banking moratorium shall not have been declared either by the United States or New York State authorities nor shall there have occurred any material outbreak or escalation of hostilities or other national or international calamity of such magnitude in its effect on, or any material adverse change in, any financial market which, in each case, in the reasonable judgment of the Lender, makes it impracticable or inadvisable to purchase the Amended and Restated Note at the Closing.
ARTICLE III.
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ARTICLE IV.
(a) The Securities may only be disposed of in compliance with federal and state securities laws. In connection with any transfer of Securities other than pursuant to an effective registration statement or Rule 144, to the Company or to an Affiliate of a Lender or in connection with a pledge as contemplated in Section 4.1(b), the Company may require the transferor thereof to provide to the Company an opinion of counsel selected by the transferor and reasonably acceptable to the Company, the form and substance of which opinion shall be reasonably satisfactory to the Company,
to the effect that such transfer does not require registration of such transferred Securities under the Securities Act. As a condition of transfer, any such transferee shall agree in writing to be bound by the terms of this Agreement and shall have the rights of a Lender under this Agreement.
(b) The Lender agrees to the imprinting, so long as is required by this Section 4.1, of a legend on the Note in the following form:
NEITHER THIS NOTE NOR THE SECURITIES INTO WHICH THIS NOTE IS CONVERTIBLE HAS BEEN REGISTERED WITH THE SECURITIES AND EXCHANGE COMMISSION OR THE SECURITIES COMMISSION OF ANY STATE IN RELIANCE UPON AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR PURSUANT TO AN AVAILABLE EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND IN ACCORDANCE WITH APPLICABLE STATE SECURITIES LAWS AS EVIDENCED BY A LEGAL OPINION OF COUNSEL TO THE TRANSFEROR TO SUCH EFFECT, THE SUBSTANCE OF WHICH
SHALL BE REASONABLY ACCEPTABLE TO THE COMPANY. THIS NOTE AND THE SECURITIES ISSUABLE UPON CONVERSION OF THIS NOTE MAY BE PLEDGED IN CONNECTION WITH A BONA FIDE MARGIN ACCOUNT OR OTHER LOAN SECURED BY SUCH SECURITIES.
The Company acknowledges and agrees that the Lender may from time to time pledge pursuant to a bona fide margin agreement with a registered broker-dealer or grant a security interest in some or all of the Securities to a financial institution that is an “accredited investor” as defined in Rule 501(a) under the Securities Act and who agrees to be bound by the provisions of this Agreement and, if required under the terms of such arrangement, the Lender may transfer pledged or secured Securities to the pledgees or secured parties. Such a pledge or transfer would not be subject to approval of the Company and no legal opinion of legal counsel of the pledgee, secured party or pledgor shall be
required in connection therewith. Further, no notice shall be required of such pledge. At the Lender’s expense, the Company will execute and deliver such reasonable documentation as a pledgee or secured party of Securities may reasonably request in connection with a pledge or transfer of the Securities.
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(c) If all or any portion of the Note is converted at a time when the applicable Note Shares may be sold under Rule 144(b)(1)(i) or if such legend is not otherwise required under applicable requirements of the Securities Act (including judicial interpretations and pronouncements issued by the staff of the Commission) then such Note Shares shall be issued free of all legends. The Company agrees that at such time as such legend is no longer required under this Section 4.1(c), it will, no later than five (5) Business Days
following the delivery by the Lender to the Company or the Company’s transfer agent of a certificate representing the Note Shares, as applicable, issued with a restrictive legend, deliver or cause to be delivered to the Lender a certificate representing such shares that is free from all restrictive and other legends.
(d) The Lender agrees that the removal of the restrictive legend from certificates representing Securities as set forth in this Section 4.1 is predicated upon the Company’s reliance that the Lender will sell any Securities pursuant to either the registration requirements of the Securities Act, including any applicable prospectus delivery requirements, or an exemption therefrom, and that if Securities are sold pursuant to a registration statement, they will be sold in compliance with the plan of distribution set forth
therein.
4.4 [Intentionally omitted]
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(i) Upon written demand by the Lender to the Company, the Company shall (i) prepare and file with the SEC, as soon as practicable thereafter but in no event later than forty-five (45) days thereafter, a registration statement on Form X-0, Xxxx X-0 or other applicable form in order to register the resale of all the Securities that the Lender requests to be registered (other than Securities that have been previously registered for resale under this Section 4.6(b)), pursuant and subject to Rule 415 of the Securities Act, (ii) use its best efforts to cause such registration statement to
become effective as soon as practicable after the filing date thereof, and (iii) make all filings, disclosures, updates and any other actions which are necessary in order to keep such registration statement continuously effective under the Securities Act for at least twenty-four (24) months following the effective date of such registration statement. Notwithstanding anything herein to the contrary, in the event that all of the Securities that are requested by the Lender to be registered on a registration statement pursuant to this Section 4.6(b) are not registered on such registration statement, the Lender shall have the right to demand that the Company register any such remaining unregistered Securities on a subsequent registration statement on Form S-1 or other applicable form as soon as reasonably practicable
on the terms and conditions set forth in this Section 4.6(b).
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(ii) Notwithstanding the foregoing, the Company may elect to delay the filing of such registration statement for a period not to exceed ninety (90) days, or may suspend the effectiveness of such registration statement after the effective date thereof for a period not to exceed ninety (90) days, if, in either case, the Company’s board of directors reasonably believes that the filing or continued effectiveness, as the case may be, of such registration statement would be materially detrimental to the Company because such action would cause a Material Suspension Event, and any time periods with respect to filing or effectiveness thereof shall be
tolled correspondingly; provided, however, that the Company may not invoke this right more than once in any twelve (12) month period, and provided further that the Company shall not register any securities for resale for its own account or that of any other stockholder during such ninety (90) day period. All expenses (other than underwriting discounts, commissions and special counsel fees of the Lender) incurred in connection with registration pursuant to this Section 4.6(b) shall be borne and paid by the Company. Except as otherwise provided in Section 4(b)(i) above, the Lender may not exercise its demand right pursuant to this Section 4.6(b) more than twice.
(d) Filing of Registration Statement Following Closing. Without limiting or otherwise prejudicing the rights granted to the Lender pursuant to Sections 4.6(a) through (c) above, the Company acknowledges and agrees that, not later than forty-five (45) days following the Closing Date, it shall prepare and file with the SEC a registration statement on Form X-0, Xxxx X-0 or any other equivalent form in order to register the resale of (i) all of the Securities; (ii) all of the “Securities” (as defined
in the Senior Loan Agreement); (iii) all shares of Common Stock or other securities issuable to the Lender upon the Lender’s exercise of (A) those certain Warrants to Purchase Common Stock of CyberDefender Corporation, each dated May 6, 2009 (Certificate Numbers WC-195 and WC-196), (B) that certain Amended and Restated Warrant to Purchase Common Stock of CyberDefender Corporation, dated May 6, 2009 (Certificate Number WC-198) and (C) that certain Common Stock Purchase Warrant purchased by the Lender on March 27, 2009, in each case to the extent that such shares are not subject to an effective registration statement on Form S-1 or other applicable form as of the Closing Date and in each case irrespective of whether the Lender has exercised all or any portion of such warrants as of the Closing Date; and (iv) the “Securities” (as defined in that certain Securities
Purchase Agreement, dated as of June 3, 2009, by and between CyberDefender Corporation, a California corporation (as predecessor in interest to the Company), and the Lander, that such Securities are not subject to an effective registration statement on Form X-0, Xxxx X-0 or other equivalent form as of the Closing Date. The Company’s obligations relating to the filing and maintenance of such registration statement shall be subject to all of the terms and conditions of Section 4.6(b) above.
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(a) The Company shall at all times maintain a reserve from its duly authorized and unissued shares of Common Stock for issuance pursuant to the Loan Documents in such amount as may be required to fulfill its obligations in full under the Loan Documents.
(b) If, on any date, the number of authorized but unissued (and otherwise unreserved) shares of Common Stock is less than the Required Minimum on such date, then the board of directors of the Company shall use commercially reasonable efforts to amend the Company’s certificate or articles of incorporation to increase the number of authorized but unissued shares of Common Stock to at least the Required Minimum at such time, as soon as possible and in any event not later than the seventy-fifth (75th) day after such date.
(c) The Company shall, if applicable: (i) in the time and manner required by the principal Trading Market, prepare and file with such Trading Market an additional shares listing application covering a number of shares of Common Stock at least equal to the Required Minimum on the date of such application, (ii) take all steps necessary to cause such shares of Common Stock to be approved for listing on such Trading Market as soon as possible thereafter, if required, (iii) provide to the Lender evidence of such listing, if applicable, and (iv) maintain the listing of such Common Stock on any date at least equal to the Required Minimum on such date on
such Trading Market or another Trading Market.
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An Indemnified Party shall have the right to employ separate counsel in any such Proceeding and to participate in the defense thereof, but the fees and expenses of such counsel shall be at the expense of such Indemnified Party or Parties unless: (1) the Indemnifying Party has agreed in writing to pay such fees and expenses; (2) the Indemnifying Party shall have failed promptly to assume the defense of such Proceeding and to employ counsel reasonably satisfactory to such Indemnified Party in any such Proceeding; or (3) the named parties to any such Proceeding (including any impleaded parties) include both such Indemnified Party and the Indemnifying Party, and
counsel to the Indemnified Party shall reasonably believe that a material conflict of interest is likely to exist if the same counsel were to represent such Indemnified Party and the Indemnifying Party (in which case, if such Indemnified Party notifies the Indemnifying Party in writing that it elects to employ separate counsel at the expense of the Indemnifying Party, the Indemnifying Party shall not have the right to assume the defense thereof and the reasonable fees and expenses of no more than one separate counsel shall be at the expense of the Indemnifying Party). The Indemnifying Party shall not be liable for any settlement of any such Proceeding effected without its written consent, which consent shall not be unreasonably withheld or delayed. No Indemnifying Party shall, without the prior written consent of the Indemnified Party, effect any settlement of any pending Proceeding in
respect of which any Indemnified Party is a party, unless such settlement includes an unconditional release of such Indemnified Party from all liability on claims that are the subject matter of such Proceeding.
Subject to the terms of this Agreement, all reasonable fees and expenses of the Indemnified Party (including reasonable fees and expenses to the extent incurred in connection with investigating or preparing to defend such Proceeding in a manner not inconsistent with this Section) shall be paid to the Indemnified Party, as incurred, within ten (10) Business Days of written notice thereof to the Indemnifying Party; provided, that the Indemnified Party shall promptly reimburse the Indemnifying Party for that portion of such fees and expenses applicable to such actions for which such Indemnified Party is judicially determined to be not entitled to indemnification
hereunder.
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(a) In the event of an Event of Default (as defined in the Amended and Restated Note), in addition to all remedies available to the Lender under the Loan Documents and/or applicable law, the Lender shall have the right (but not the obligation), exercisable upon written notice to the Company at any time during which such Event of Default shall be continuing, to cause the Company to retain a consultant or a Company executive, selected by the Lender in its sole discretion (but subject to approval by a majority of the independent directors of the Company’s Board of Directors, which approval shall not be withheld unreasonably), to oversee the
management and operations of the Company (such person, the “Senior Business Advisor”), at the Company’s sole cost and expense; provided that the Senior Business Advisor’s compensation shall not exceed that of the Company’s Chief Financial Officer at the time of the Company's engagement of the Senior Business Advisor. The Company shall approve, execute, deliver and file, and shall cause its stockholders, Board of Directors and officers, as the case may be, to approve, execute, deliver and file, any consents, amendments, filings, or other agreements or documents necessary to cause the Senior Business Advisor to be retained by the Company as provided above not later than three (3) Business Days following the Company's receipt of the above-referenced notice from the
Lender. The Company shall retain the Senior Business Advisor for so long as, and only for so long as, an Event of Default shall occur and be continuing. The Company's Board of Directors may remove the Senior Business Advisor upon written notice to the Senior Business Advisor and the Lender immediately upon the Company's cure of any such Event of Default, (as reasonably determined by the Lender), and the Lender shall cooperate with the Company as reasonably requested by the Company in connection with such removal.
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(b) The Senior Business Advisor shall report directly to, and be subject to the direction of, the Company's Board of Directors. The Senior Business Advisor shall be senior to the Company's senior executive officers, including, without limitation, the Company's Chief Executive Officer and Chief Financial Officer, each of whom shall report to, and be subject to the direction of, the Senior Business Advisor during the Company’s engagement of the Senior Business Advisor. The Senior Business Advisor shall have the same power and authority to bind the Company as is granted to the Company's senior executive officers. The
Company shall (i) invite the Senior Business Advisor to attend all meetings of its Board of Directors in a nonvoting observer capacity and, in this respect, shall give the Senior Business Advisor copies of all notices, minutes, consents and other materials that the Company provides to its directors and officers at the same time and in the same manner as provided to such directors and officers, as the case may be and (ii) provide the Senior Advisor with access to all financial information of the Company, including, without limitation, budgets, projections, plans and results of operations; provided, however, that the Senior Business Advisor shall agree to hold in confidence and trust all information so provided and provided further that the Company reserves the right to withhold any information and to exclude the Senior Business Advisor from any Board of Directors meeting or portion
thereof if access to such information or attendance at such meeting could adversely affect the attorney-client privilege between the Company and its counsel.
(c) The Company shall enter into an indemnification agreement with the Senior Business Advisor on terms reasonably satisfactory to the Senior Business Advisor indemnifying the Senior Business Advisor for any losses, damages or other expenses incurred by the Senior Business Advisor relating to or arising out of the Senior Business Advisor's performance of services as an advisor to the Company. The Company shall add the Senior Business Advisor as an additional insured under the Company's directors and officers liability insurance policy to the extent such coverage is available on commercially reasonable terms.
(d) From and after the closing of any sale or transfer of the Lender’s rights under the Amended and Restated Note to a third party other than an Affiliate of the Lender, this Section 4.11 shall be of no further force and effect.
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ARTICLE V.
The Company covenants and agrees that, until payment in full and/or the conversion of all principal and interest outstanding under the Amended and Restated Note, it will not do, directly or indirectly, any of the following unless the Lender consents thereto in writing:
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ARTICLE VI
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6.8 Governing Law. All questions concerning the construction, validity, enforcement and interpretation of the Loan Documents shall be governed by and construed and enforced in accordance with the internal laws of the State of California, without regard to the principles of conflicts of law thereof. Each party agrees that all Proceedings concerning the interpretations, enforcement and defense of the transactions contemplated by this Agreement and any other Loan Documents (whether brought against a party hereto or its respective affiliates, directors, officers,
stockholders, employees or agents) shall be commenced exclusively in the state or federal courts sitting in the City of Los Angeles. Each party hereby irrevocably submits to the exclusive jurisdiction of the state and federal courts sitting in the City of Los Angeles for the adjudication of any dispute hereunder or in connection herewith or with any transaction contemplated hereby or discussed herein (including with respect to the enforcement of any of the Loan Documents), and hereby irrevocably waives, and agrees not to assert in any Proceeding, any claim that it is not personally subject to the jurisdiction of any such court, that such Proceeding is improper or is an inconvenient venue for such Proceeding. Each party hereby irrevocably waives personal service of process and consents to process being served in any such Proceeding by mailing a copy thereof via
registered or certified mail or overnight delivery (with evidence of delivery) to such party at the address in effect for notices to it under this Agreement and agrees that such service shall constitute good and sufficient service of process and notice thereof. Nothing contained herein shall be deemed to limit in any way any right to serve process in any other manner permitted by law. The parties hereby waive all rights to a trial by jury. If either party shall commence a Proceeding to enforce any provisions of the Loan Documents, then the prevailing party in such Proceeding shall be reimbursed by the other party for its reasonable attorneys’ fees and other costs and expenses incurred with the investigation, preparation and prosecution of such Proceeding.
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(Signature Pages Follow)
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IN WITNESS WHEREOF, the parties hereto have caused this Loan Modification Agreement to be duly executed by their respective authorized signatories as of the date first indicated above.
CYBERDEFENDER CORPORATION
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Address for Notice:
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By:
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000 Xxxx 0xx Xxxxxx, Xxxxx 0000
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Name: Xxxx Xxxxxxxx
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Xxx Xxxxxxx XX 00000
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Title: Chief Executive Officer
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Fax: 000-000-0000
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With a copy to (which shall not constitute notice):
Xxxxxxxxxx & Xxxxx, LLP
000 Xxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxx Xxxxxxxxx
Fax: 000-000-0000
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK
SIGNATURE PAGE FOR LENDER FOLLOWS]
[LENDER SIGNATURE PAGE TO
IN WITNESS WHEREOF, the undersigned have caused this Loan Modification Agreement to be duly executed by its/his/her respective authorized signatories as of the date first indicated above.
GR MATCH, LLC,
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Address for Notice:
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a Delaware limited liability company
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By:
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GR Match, LLC
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Name:
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c/o Xxxxx-Xxxxxx LLC
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Title:
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0000 Xxxxx Xxxx Xxxxxxxxx, Xxxxx 0000
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Xxxxx Xxxxxx, XX 00000
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Attention: Business Affairs
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Fax: 000-000-0000
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With a copy to (which shall not constitute notice):
Xxxxx-Xxxxxx LLC
0000 Xxxxx Xxxx Xxxxxxxxx, Xxxxx 0000
Xxxxx Xxxxxx, XX 00000
Fax: 000-000-0000
Attention: General Counsel
The Lender has filed applications for the following trademarks: CYBERPD and RAMPMYSPEED. The Lender has agreed to transfer the Lender's rights in these trademarks to the Company.
EXHIBIT A
Form of Amended and Restated Note
See attached
EXHIBIT B
Form of Fifth Amendment to Media and Marketing Services Agreement
See attached
EXHIBIT C
Form of Second Amendment to Senior Promissory Note
See attached
EXHIBIT D
Form of Waiver
See attached