Contract
Exhibit E
EXECUTION COPY
THIS NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “ACT”),
OR THE SECURITIES LAWS OF ANY STATE. NEITHER THIS NOTE NOR ANY INTEREST OR PARTICIPATION HEREIN MAY
BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF OTHER THAN
(A) IN ACCORDANCE WITH THE TERMS HEREOF AND (B) PURSUANT TO THE SECURITIES ACT OF 1933 OR UNDER AN
AVAILABLE EXEMPTION FROM REGISTRATION; PROVIDED THAT IF THE TRANSFER IS PURSUANT TO AN EXEMPTION
FROM REGISTRATION, DEBTOR MAY REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL REASONABLY ACCEPTABLE
TO DEBTOR THAT SUCH REGISTRATION IS NOT REQUIRED.
AMENDED AND RESTATED PROMISSORY NOTE
$26,244,037.31
November 4, 2008
FOR VALUE RECEIVED, CBay Inc., a Delaware corporation (“Debtor”), promises to pay to
the order of Koninklijke Philips Electronics N.V. or its permitted assigns (“Lender”), the
principal sum of TWENTY-SIX MILLION TWO HUNDRED FORTY-FOUR THOUSAND THIRTY-SEVEN DOLLARS AND
THIRTY-ONE CENTS ($26,244,037.31) and to pay interest on the outstanding principal of this
Promissory Note (the “Note”), in accordance with Section 2 of this Note. This Note amends
and restates in its entirety the Promissory Note, dated August 6, 2008, issued by Debtor and
CBaySystems Holdings Limited to Lender in an aggregate principal amount of $26,244,037.31 (the
“Original Note”).
1. Maturity. Debtor shall repay the unpaid principal in full, together with all
accrued and unpaid interest thereon, on May 4, 2009 (the “Repayment Date”). All payments
under this Note shall be paid in United States dollars in immediately available funds and shall be
applied first against accrued and unpaid interest, then against principal.
2. Interest. Interest shall accrue and be payable in arrears on the unpaid principal
balance of this Note on the Repayment Date, commencing on August 6, 2008 and continuing until
repayment of this Note, in full, at the following rates: until November 4, 2008, at the rate of
1.67% per annum, between November 4, 2008 and February 4, 2009 at the rate of 6.00% per annum, and
thereafter at the rate of 10.00% per annum, in each case calculated on the basis of a 365-day year
and actual days elapsed.
3. Optional Prepayment. Debtor may prepay, in whole or in part, at any time,
without premium or prepayment penalty, any unpaid principal balance or accrued and unpaid
interest (to, but not including, the date of such prepayment) prior to the Repayment Date.
All payments hereunder shall be credited first to accrued but unpaid interest, and then to
principal.
4. Mandatory Repayment. Not later than three business days following Xxxxxx’s receipt
of a cash dividend on the common stock of MedQuist, Inc., a New Jersey corporation (“MedQuist”), in
respect of common stock, no par value, of MedQuist owned by Debtor as of the
issuance date of the
Original Note (each such cash dividend, a “MedQuist Dividend”), Debtor shall apply such MedQuist
Dividend to repay all or a portion of any unpaid principal balance or accrued and unpaid interest
payable to Lender hereunder in an amount equal to the lesser of:
(a) such MedQuist Dividend; and
(b) the unpaid principal balance of this Note, plus all accrued and unpaid interest thereon
(to, but not including, the date of such repayment), as of the date of such repayment
(any such amount, a “Mandatory Repayment Amount”), without premium or penalty. All
payments hereunder shall be credited first to accrued but unpaid interest, and then to principal.
5. Change of Control Event. If a Change of Control Event (as defined below) occurs,
Lender may, at its option, exercised by delivering written notice to Debtor, accelerate repayment
of this Note, in which case the principal amount outstanding under this Note and all interest
accrued and unpaid thereon shall be due and payable immediately. For purposes of this Note, the
term “Change of Control Event” means either (i) the sale of all or substantially all of the
assets of Guarantor (as defined below) to any Person other than an affiliate of Guarantor or of
S.A.C. Private Capital Group, LLC or (ii) a sale or other transfer of ordinary shares of Guarantor
by S.A.C. PEI CB Investment, L.P. (“Investor”) if Investor and its affiliates would, as a
result of such transfer, collectively beneficially own less than 90% of the number of ordinary
shares of Guarantor that Investor beneficially owns at the date of issuance of this Note (as
adjusted for any combinations or subdivisions of Guarantor’s ordinary shares and the payment of any
dividends thereon in the form of Guarantor’s ordinary shares); provided, that Debtor shall
provide written notice to Lender of such Change of Control Event promptly, and in no event less
than 5 business days prior to such Change of Control Event; provided, further, that
a merger or business combination shall not be taken into consideration in determining whether a
Change of Control Event has occurred if at least 90% of the value of the consideration received by
Investor in such transaction is in the form of equity interests in the surviving entity.
6. Default. For purposes of this Note, the term “default” shall mean any of
the following:
(a) The failure by Debtor to pay, for 5 business days, any principal or interest due and
payable on this Note, whether upon mandatory repayment or otherwise;
(b) Debtor shall (i) make an assignment for the benefit of creditors or petition or apply to
any tribunal for the appointment of a custodian, receiver or trustee for it or a substantial
part of its assets, (ii) commence any proceeding under any bankruptcy, reorganization,
arrangement, readjustment of debt, dissolution or liquidation law or statute of any
jurisdiction, whether now or hereafter in effect, (iii) have had any such
petition or application filed or any such proceeding commenced against it that is not
dismissed within 60 days, (iv) formally consent to approve any such petition, application,
proceeding or order for relief or the appointment of a custodian, receiver or trustee for it
or a substantial part of its assets, or (v) suffer any such custodianship, receivership or
trusteeship to continue undischarged for a period of 60 days or more; or
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(c) Debtor shall adopt a plan of liquidation or dissolution, or the certificate of
incorporation of Debtor shall expire or be revoked.
Upon each such default, Lender may, at its option, exercised by delivering written notice to
Debtor, accelerate repayment of this Note, in which case the principal amount outstanding under
this Note and all interest accrued thereon shall be due and payable immediately; provided,
that if there shall occur a default described in subparagraph (c), the entire unpaid balance of
principal with interest accrued thereon shall be immediately due and payable without any action by
Lender.
7. Representations and Warranties of Debtor.
(a) Debtor is a corporation duly organized, validly existing and in good standing under the
laws of the State of Delaware and has all requisite corporate power and authority to enter
into this Note and consummate the transactions contemplated hereby. This Note has been duly
authorized, executed and delivered by Xxxxxx and constitutes a legal, valid and binding
obligation of Debtor, enforceable against Debtor in accordance with its terms, subject to
bankruptcy, insolvency, moratorium, reorganization or similar laws affecting the rights of
creditors generally and the availability of equitable remedies.
(b) Except for this Note, the Convertible Notes (as defined in the Stock Purchase Agreement,
dated as of May 21, 2008, by and among Guarantor, Debtor and Lender (the “Stock Purchase
Agreement”) and any intercompany note between Guarantor and Debtor that is subordinated
to this Note and the Convertible Note and will not be repaid in whole or in part until after
this Note is repaid in full, Debtor on the date hereof has no (i) indebtedness for borrowed
money, whether contingent, current or funded, secured or unsecured, (ii) indebtedness that
is evidenced by a note, bond, debenture, draft, bankers’ acceptance, letter of credit or
similar instrument, (iii) material liabilities or obligations for the deferred purchase
price of property or services, (iv) capitalized lease obligations, or (v) guarantees of any
of the foregoing of another person (other than guarantees with respect to obligations under
(A) the Loan and Security Agreement, dated as of July 21, 2004, by and between CBay Systems,
Ltd. and K Bank, as amended and/or modified from time to time, (B) the Loan and Security
Agreement, dated as of May 17, 2006, by and between Mirrus Systems, Inc. and K Bank, as
amended and/or modified from time to time, and (C) the Rupee Loan Agreement, made as of
March 20, 2006, between CBay Systems Private Ltd. and Export-Import Bank of India).
8. Guarantee.
(a) CBaySystems Holdings Limited, a British Virgin Islands company and the direct parent of
Debtor (“Guarantor”), hereby fully, unconditionally and irrevocably guarantees,
as primary obligor and not merely as surety, to Lender, the performance by Debtor of all of
Debtor’s obligations under this Note, including, but not limited to, the full and punctual
payment of any and all present and future amounts under this Note, whether absolute or
contingent, whether at the Repayment Date or by acceleration, optional prepayment, mandatory
repayment or otherwise, of the principal of and interest on this Note (collectively, the
“Guarantor Obligations”).
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(b) Guarantor waives presentation to, demand of payment from and protest to Debtor of any of
the Guarantor Obligations and also waives notice of protest for nonpayment. Guarantor
waives (to the extent permitted by law) notice of any default under this Note or the
Guarantor Obligations. Guarantor further agrees that its guarantee herein (the
“Guarantee”) constitutes a continuing guarantee of payment when due (and not a
guarantee of collection) and waives any right to require that any resort be had by Lender to
any security held for payment of the Guarantor Obligations.
(c) Except as set forth in Section 8(h) of this Note, the obligations of Guarantor hereunder
shall not be subject to any reduction, limitation, impairment or termination for any reason
(other than payment of the Guarantor Obligations in full), including any claim of waiver,
release, surrender, alteration or compromise, and shall not be subject to any defense of
setoff, counterclaim, recoupment or termination whatsoever or by reason of the invalidity,
irregularity, illegality or unenforceability of this Note or the Guarantor Obligations or
otherwise. Without limiting the generality of the foregoing, the Guarantor Obligations
shall not be discharged or impaired or otherwise affected by (i) the failure of Lender to
assert any claim or demand or to enforce any right or remedy against Debtor or any other
Person under this Note or any other agreement executed or delivered in connection with this
Note; (ii) any extension or renewal of this Note or any other agreement executed or
delivered in connection with this Note; (iii) any rescission, waiver, amendment or
modification of any of the terms or provisions of this Note or any other agreement executed
or delivered in connection with this Note; (iv) any change in the ownership of Debtor or
Guarantor; (v) any default, failure or delay, willful or otherwise, in the performance of
the Guarantor Obligations, (vi) the power, authority or capacity of Debtor, (vii) the
recovery of any judgment against Debtor or any action to enforce the same, or (viii) any
other act or thing or omission or delay to do any other act or thing which may or might in
any manner or to any extent vary the risk of Guarantor or would otherwise operate as a
discharge of Guarantor as a matter of law or equity.
(d) Until the payment of the Guarantor Obligations in full, Guarantor shall not exercise any
right of subrogation in relation to payments made by Guarantor pursuant to this Guarantee.
If Lender in its sole discretion elects to give notice of any action in relation to the
Collateral to the Guarantor, 5 business days’ prior written notice to Guarantor shall be
reasonable notice of any matters contained in such notice.
(e) Guarantor agrees that its Guarantee herein shall remain in full force and effect until
payment in full of all the Guarantor Obligations or Guarantor is released from its Guarantee
in compliance with Section 8(h) of this Note. Guarantor further agrees that its obligations
hereunder shall not be delayed or restrained upon the commencement of any voluntary or
involuntary bankruptcy or insolvency proceedings in relation to Debtor or
any of its property whether or not any collection, enforcement or other action against
Debtor or any of its property is stayed or enjoined. If at any time any payment of any
portion of the Guarantor Obligations is rescinded or must otherwise be restored or returned
upon the insolvency, bankruptcy or reorganization of Debtor or otherwise, Guarantor’s
obligations hereunder in relation to such payment shall be reinstated at such time as though
such payment had not been made.
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(f) In furtherance of the foregoing and not in limitation of any other right which Lender
has at law or in equity against Guarantor by virtue hereof, upon the failure of Debtor to
pay any of the Guarantor Obligations when and as the same shall become due, whether at the
Repayment Date or by acceleration, optional prepayment, mandatory repayment or otherwise,
Guarantor hereby promises to and will, upon receipt of written demand by Lender, forthwith
pay, or cause to be paid, in cash, to Lender an amount equal to the sum of (i) the unpaid
amount of such Guarantor Obligations then due and owing and (ii) accrued and unpaid interest
on such Guarantor Obligations then due and owing (but only to the extent not prohibited by
law) (including interest accruing after the filing of any petition in bankruptcy or the
commencement of any insolvency, reorganization or like proceeding relating to Debtor or
Guarantor whether or not a claim for post-filing or post-petition interest is allowed in
such proceeding).
(g) Guarantor further agrees that, as between Guarantor, on the one hand, and Lender, on the
other hand, (x) the maturity of the Guarantor Obligations guaranteed hereby may be
accelerated as (and to the extent) provided in this Note for the purposes of the Guarantee
herein, notwithstanding any stay, injunction or other prohibition preventing such
acceleration in respect of the Guarantor Obligations guaranteed hereby and (y) in the event
of any such declaration of acceleration of such Guarantor Obligations, such Guarantor
Obligations (whether or not due and payable) shall forthwith become due and payable by
Guarantor for the purposes of this Guarantee.
(h) Guarantor shall automatically be released from all of its obligations under this Note
upon payment in full of all principal and accrued and unpaid interest due under this Note in
accordance with its terms.
(i) Guarantor shall pay all costs, fees and expenses (including reasonable attorneys’ fees
and expenses) incurred by Xxxxxx in collecting or enforcing Guarantor’s obligations
hereunder.
(j) Guarantor’s liability hereunder is independent of any other guarantees or other
obligations at any time in effect in relation to the Guarantor Obligations or the Stock
Purchase Agreement, and such liability hereunder may be enforced regardless of the
existence, validity, enforcement or non enforcement of any such other guarantees or
obligations. Lender shall have no obligation to disclose or discuss with Guarantor its
assessment of the financial condition of Debtor.
(k) No failure on the part of Lender to exercise, and no delay in exercising, any right,
remedy or power under the Guarantee shall operate as a waiver thereof.
9. Security.
(a) Collateral. The due and punctual payment of the principal of, and interest on,
this Note and the Guarantee when and as the same shall be due and payable, whether at
maturity or by acceleration, optional prepayment, mandatory repayment or otherwise, interest
on the overdue principal of and interest (to the extent permitted by law), if any, on this
Note and the Guarantee and performance of all other obligations of Debtor and
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Guarantor
hereunder shall be secured by first-priority Liens and security interests in (i) all shares
of MedQuist common stock and (ii) all cash received as a MedQuist Dividend, in each case now
owned or hereafter acquired by Debtor (such cash and shares, the “Collateral”).
(b) Further Assurances.
(i) At Lender’s request, Debtor and Guarantor shall, at their sole expense, do all
acts which may be reasonably necessary to confirm that Xxxxxx holds duly created,
enforceable and perfected first-priority Liens and security interests in the
Collateral; provided, that perfection shall not apply to Collateral
specifically requiring perfection through control agreements (including deposit
accounts or securities accounts).
(ii) At Lender’s request, Debtor and Guarantor shall, at their sole expense,
execute, acknowledge and deliver such documents and instruments and take such other
actions, which may be necessary to assure, perfect, transfer and confirm the Liens,
benefits, property and rights conveyed by this Note, including with respect to
after-acquired Collateral; provided, that perfection shall not apply to
Collateral specifically requiring perfection through control agreements (including
deposit accounts or securities accounts).
(c) Impairment of Security Interest. Neither Debtor nor Guarantor shall take or
omit to take any action which would adversely affect in a material respect or impair the
Liens in favor of Lender with respect to the Collateral. Neither Debtor nor Guarantor shall
enter into any agreement that requires the proceeds received from any sale of Collateral to
be applied, in priority or in parity with this Note, to repay, redeem, defease or otherwise
acquire or retire any indebtedness of any Person.
(d) Maintenance of Collateral. Debtor and Guarantor shall maintain the Collateral
in good, safe and insurable condition and do all other acts as may be reasonably necessary
or appropriate to maintain and preserve the Collateral, except where the failure to maintain
such Collateral would not reasonably be expected to have a material adverse effect on the
Collateral, taken as a whole.
(e) Release of Liens on the Collateral. The Liens on the Collateral will be released
with respect to this Note and the Guarantee:
(i) in whole, upon payment in full of the unpaid principal, together with all
accrued and unpaid interest thereon, of this Note; or
(ii) with the consent of Lender.
Upon compliance by Debtor with the conditions precedent set forth above, Xxxxxx shall
promptly cause to be released and reconveyed to Debtor the released Collateral and execute
and deliver to Debtor such documents as Debtor shall reasonably request to evidence such
termination.
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(f) Pledged Stock.
(i) If Lender elects to exercise any of its rights with respect to the shares of
MedQuist common stock pledged as part of the Collateral (the “Pledged
Stock”), it shall provide prior written notice to Debtor. Unless a default
shall have occurred and be continuing and Lender shall have given notice to Debtor
of Lender’s intent to exercise its corresponding rights pursuant to Section 9(f)(ii)
of this Note, Debtor shall be permitted to receive all cash dividends, payments or
other proceeds paid in respect of such Pledged Stock and to exercise all voting and
corporate or other organizational rights with respect to such Pledged Stock.
(ii) If a default shall occur and be continuing and Lender shall give notice of its
intent to exercise such rights to Debtor, (i) Lender shall have the right to receive
any and all cash dividends, payments or other proceeds paid in respect of the
Pledged Stock and make application thereof to the unpaid principal balance of or
accrued and unpaid interest on this Note, and (ii) any or all of the Pledged Stock
shall be registered in the name of Lender or its nominee, and Lender or its nominee
may thereafter exercise (x) all voting, corporate and other rights pertaining to the
Pledged Stock at any meeting of shareholders of MedQuist or any adjournment or
postponement thereof or otherwise and (y) any other rights pertaining to the Pledged
Stock as if it were the absolute owner thereof.
(iii) Notwithstanding anything to the contrary stated herein, Xxxxxx may not
exercise any rights with respect to the Pledged Stock until 90 days after the date
hereof.
(g) Certain Definitions.
(i) “Lien” means any mortgage, pledge, security interest, encumbrance, lien or
charge of any kind (including any conditional sale or other title retention
agreement or lease in the nature thereof).
(ii) “Person” means any individual, corporation, partnership, joint venture,
association, joint-stock company, trust, unincorporated organization, limited
liability company or government or any agency or political subdivision thereof or
any other entity.
10. Notices. Any notice or communication shall be in writing and delivered in person,
sent by facsimile or delivered by commercial overnight courier service providing proof of delivery,
addressed as follows:
If to Debtor:
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Fax: (000) 000-0000
Attention: Xxxxx Xxxxx
Attention: Xxxxx Xxxxx
with copies (which shall not constitute notice) to:
Xxxxx Day
00 Xxxx Xxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Fax: (000) 000-0000
Attention: Xxxxxxx Xxxxxxxxxx
00 Xxxx Xxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Fax: (000) 000-0000
Attention: Xxxxxxx Xxxxxxxxxx
and
Xxxxxxx Xxxxxxx & Xxxxxxxx LLP
0000 Xxxxxx of the Stars, 29th Floor
Los Xxxxxxx, XX 00000
Fax: (000) 000-0000
Attention: Xxxxxx Xxxxxxx
0000 Xxxxxx of the Stars, 29th Floor
Los Xxxxxxx, XX 00000
Fax: (000) 000-0000
Attention: Xxxxxx Xxxxxxx
If to Guarantor:
CBaySystems Holdings Limited
0000 Xxxx Xxxx
Xxxxxxxx 0000, Xxxxx Xxxxx
Xxxxxxxxx XX 00000
Fax: (000) 000-0000
Attention: Xxxxx Xxxxx
0000 Xxxx Xxxx
Xxxxxxxx 0000, Xxxxx Xxxxx
Xxxxxxxxx XX 00000
Fax: (000) 000-0000
Attention: Xxxxx Xxxxx
with copies (which shall not constitute notice) to:
Xxxxx Day
00 Xxxx Xxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Fax: (000) 000-0000
Attention: Xxxxxxx Xxxxxxxxxx
00 Xxxx Xxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Fax: (000) 000-0000
Attention: Xxxxxxx Xxxxxxxxxx
and
Xxxxxxx Xxxxxxx & Xxxxxxxx LLP
0000 Xxxxxx of the Stars, 29th Floor
Los Xxxxxxx, XX 00000
Fax: (000) 000-0000
Attention: Xxxxxx Xxxxxxx
0000 Xxxxxx of the Stars, 29th Floor
Los Xxxxxxx, XX 00000
Fax: (000) 000-0000
Attention: Xxxxxx Xxxxxxx
If to Lender:
Koninklijke Philips Electronics N.V.
Xxxxxxxx Center HBT 18
Xxxxxxxx Center HBT 18
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Amstelplein 2, 1096 BC
P.O. Box 77900
1070 MX Amsterdam
The Netherlands
Fax: (00) 00 00 00000
Attention: Xxxxx Xxxxx, Executive Vice President, Corporate Mergers &
Acquisitions
P.O. Box 77900
1070 MX Amsterdam
The Netherlands
Fax: (00) 00 00 00000
Attention: Xxxxx Xxxxx, Executive Vice President, Corporate Mergers &
Acquisitions
with a copy (which shall not constitute notice) to:
Xxxxxxxx & Xxxxxxxx LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Fax: (000) 000-0000
Attention: Xxxx X. Xxxxxxxx
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Fax: (000) 000-0000
Attention: Xxxx X. Xxxxxxxx
Debtor, Guarantor or Lender may, by written notice to the others, designate additional or different
addresses for subsequent notices or communications. Any notice or communication shall be deemed to
have been given or made as of the date so delivered if personally delivered; when receipt is
acknowledged, if sent by facsimile; and one business day after sending if sent by commercial
overnight courier service; provided, that a notice of change of address shall not be deemed
to have been given until actually received by the addressee. If a notice or communication is sent
in the manner provided above, it is duly given, whether or not the addressee receives it, except
that notices to Debtor shall be effective only upon receipt.
11. Miscellaneous.
(a) Debtor hereby waives presentment, demand, protest, notice of dishonor, diligence and all
other notices, any release or discharge arising from any extension of time, discharge of a
prior party, release of any or all of any security given from time to time for this Note, or
other cause of release or discharge or defense to payment and performance of its obligations
hereunder other than actual payment in full hereof.
(b) Any term of this Note may be amended or waived with the prior written consent of each
party hereto. No party hereto shall be deemed, by any act or omission, to have waived any
of its rights or remedies hereunder unless such waiver is in writing and signed by such
party and then only to the extent specifically set forth in such writing. A waiver with
reference to one event shall not be construed as continuing or as a bar to or waiver of any
right or remedy as to a subsequent event. No delay or omission of Lender to exercise any
right, whether before or after a default hereunder, shall impair any such right or shall be
construed to be a waiver of any right or default, and the acceptance at any time by Lender
of any past-due amount shall not be deemed to be a waiver of the
right to require prompt payment when due of any other amounts then or thereafter due and
payable.
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(c) Time is of the essence hereof. Upon any default hereunder, Xxxxxx may exercise all
rights and remedies provided for herein and by law or equity or otherwise, including, but
not limited to, the right to immediate payment in full of this Note.
(d) The remedies of Lender as provided herein, or any one or more of them, or in law or in
equity, shall be cumulative and concurrent, and may be pursued singularly, successively or
together at Lender’s sole discretion and may be exercised as often as occasion therefor
shall occur.
(e) If any provisions of this Note would require Debtor or Guarantor to pay interest hereon
at a rate exceeding the highest rate allowed by applicable law, Debtor or Guarantor shall
instead pay interest under this Note at the highest rate permitted by applicable law.
(f) This Note shall be governed by and construed in accordance with the laws of the State of
New York.
(g) This Note shall be binding upon Debtor and Guarantor and their respective successors and
assigns. This Note may not be assigned or transferred by any party hereto without the
written consent of the other parties. Any purported assignment in violation of this section
shall be null and void and of no force and effect.
(h) All payments (including prepayments) to be made by Debtor hereunder, whether on account
of principal, interest or otherwise, shall be made without setoff or counterclaim.
(i) If any provision of this Note is held to be invalid, illegal, void or unenforceable by a
court of competent jurisdiction, the other provisions of this Note shall remain in full
force and effect and shall be liberally construed in order to effect the provisions of this
Note. It is hereby stipulated and declared to be the intention of Debtor and Lender that
they would have executed the remaining terms, provisions, covenants and restrictions without
including any of such that may be hereafter declared invalid, illegal, void or
unenforceable.
(j) This Note constitutes the entire understanding between Debtor and Lender with respect to
the subject matter hereof and supersedes any prior agreements, written or oral, with respect
thereto.
12. Cancellation of Original Note. The parties hereto agree by their execution of
this Note that the Original Note is canceled and no amounts are due thereunder.
[signature page follows]
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IN WITNESS WHEREOF, Xxxxxx and Guarantor have executed this Note as of the date first above
written.
| CBAY INC. |
||||
| By: | /s/ Xxxx Xxxxx Xxxxx | |||
| Name: | Xxxx Xxxxx Xxxxx | |||
| Title: | Vice Chairman and CEO | |||
| CBAYSYSTEMS HOLDINGS LIMITED |
||||
| By: | /s/ Xxxxxx X. Xxxxxxxx | |||
| Name: | Xxxxxx X. Xxxxxxxx | |||
| Title: | Chairman | |||
| Accepted and agreed as of the date first above written: KONINKLIJKE PHILIPS ELECTRONICS N.V. |
||||
| By: | /s/ Xxxxx X. Xxxxx | |||
| Name: | Xxxxx X. Xxxxx | |||
| Title: | Head of Mergers and Acquisitions |
|||
