1
EXHIBIT 10.48
THIS NOTE AND THE SECURITIES ISSUABLE HEREUNDER HAVE NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), OR UNDER ANY STATE
SECURITIES LAWS. THIS NOTE AND THESE SECURITIES ARE SUBJECT TO RESTRICTIONS ON
TRANSFERABILITY AND RESALE AND MAY NOT BE TRANSFERRED, SOLD, OFFERED FOR SALE,
PLEDGED OR HYPOTHECATED IN THE ABSENCE OF A REGISTRATION STATEMENT IN EFFECT
WITH RESPECT TO THIS NOTE OR THESE SECURITIES, AS THE CASE MAY BE, UNDER THE ACT
OR APPLICABLE STATE SECURITIES LAWS OR AN OPINION OF COUNSEL SATISFACTORY TO THE
COMPANY THAT ANY PROPOSED TRANSFER OR RESALE IS IN COMPLIANCE WITH THE ACT AND
ANY APPLICABLE STATE SECURITIES LAWS.
----------
SECURED CONVERTIBLE PROMISSORY NOTE
OF
THE SANTA XXXX OPERATION, INC.
$18,000,000 December ___, 2000
The Santa Xxxx Operation, Inc., a California corporation (the "COMPANY"), for
value received, hereby promises to pay to The Canopy Group, Inc., a Utah
corporation ("NOTEHOLDER"), at 000 Xxxxx 000 Xxxx, Xxxxx 000, Xxxxxx, Xxxx
00000, or its assigns, the sum of Eighteen Million Dollars ($18,000,000.00), or
if less, the then unpaid principal amount of all loans made by Noteholder to the
Company under the Loan Agreement, dated the date hereof, made by and between the
Company and the Noteholder, plus interest accrued on unpaid principal, at a rate
per annum of ten percent (10%), from the date of this Note until the principal
amount hereof and all interest accrued thereon is paid (or converted, as
provided in Section 2 hereof). Accrued interest due on this Note shall be
payable monthly on the first day of each month, beginning January 1, 2001, at
the address of Noteholder or of the holder of this Note set forth in Section 17
hereof or as to which the Company has been notified in compliance with such
Section. Unless this Note shall have been previously converted pursuant to
Section 2 hereof or as provided otherwise in this Note, the principal amount of
this Note, and the interest accrued thereon, shall be payable on the earliest to
occur of (i) December ___, 2001, (ii) a default under this Note in accordance
with Paragraph 8 below, or (iii) a default as that term is defined in the
Security Agreement executed herewith.
This Note may be prepaid in full or in part at any time without penalty
upon twenty (20) days written notice to Noteholder.
If any payment is not made when due hereunder, time being of the
essence, a late fee equal to five percent (5%) of such late payment shall be
immediately due hereunder (in addition to all other amounts due hereunder), and
all past due principal and accrued interest on this Note shall bear
2
interest until all payments hereunder are brought current at the lesser of (i)
the rate of 18% per annum or (ii) the highest rate for which Borrower may
legally contract under applicable law.
All payments hereunder shall be payable in lawful money of the United
States of America which shall be legal tender for public and private debts at
the time of payments. Any and all payments by Borrower under this Note shall be
applied as follows: first, to the repayment of any expenses incurred by
Noteholder in enforcing its rights hereunder; second, to the payment of any late
charges; third, to the payment of accrued interest; and fourth, to the payment
of principal.
The following additional terms and conditions shall apply hereto:
1. DEFINITIONS. The following definitions shall apply for all purposes
of this Note:
1.1 "COMPANY" shall mean the Company as defined above and
includes any corporation which shall succeed to or assume the obligations of the
Company under this Note.
1.2 "CHANGE OF CONTROL TRANSACTION" shall mean a merger,
acquisition, or other business combination in which (a) fifty percent (50%) or
more of the Company's outstanding voting stock is acquired by different holders
in a single transaction or a series of related transactions, or (b) the
Company's shareholders immediately prior to the transaction hold less than 50%
of the shares in the surviving entity after the transaction.
1.3 "CONVERSION DATE" shall mean the date on which, pursuant
to Sections 2 and 3 hereof, Noteholder exercises its right to convert this Note
into the Conversion Stock at the Note Conversion Price.
1.4 "CONVERSION STOCK" shall mean the shares of Common Stock,
no par value, of the Company. The number and character of shares of Conversion
Stock are subject to adjustment as provided herein and the term "Conversion
Stock" shall include shares and other securities and property at any time
receivable or issuable upon conversion of this Note in accordance with its
terms.
1.5 "NOTE CONVERSION PRICE" shall be the closing price of the
Company's Common Stock on the date of this Note as reported by the National
Association of Securities Dealers Automated Quotation System ("NASDAQ").
1.6 "NOTEHOLDER," "HOLDER," or similar terms, when the context
refers to a holder of this Note, shall mean any person who shall at the time be
the registered holder of this Note.
2. CONVERSION.
2.1 Conversion of Note. At any time prior to payment in full
of the entire outstanding principal balance of this Note, plus accrued interest
hereunder, and upon thirty (30) days
2
3
written notice, Noteholder shall have the right, at the holder's option, to
convert the principal and accrued interest on this Note, in whole or in part,
into Conversion Stock at the Note Conversion Price. Conversion in whole under
this Section 2 shall occur only upon surrender of this Note for conversion at
the principal offices of the Company, accompanied by written notice of election
to convert. Conversion in part shall result in a credit to the outstanding
principal owed under this Note as evidenced by a written notice of election to
convert, which shall recite the dollar amount of conversion and shall act as a
credit against the unpaid obligation of the Note. Conversion will not occur for
amounts that Borrower, (i) within ten (10) days of the date of Noteholders'
notice under this Section, gives written notice of its intent to prepay, and
(ii) makes such payment within the 30 day notice period under this Section 2.1.
Notwithstanding the foregoing, Noteholder shall have the option to immediately
convert any amount that is outstanding at the end of the 30 notice period under
this Section 2.1.
2.2 Conversion Xxxxx.Xx no event shall Canopy convert, in
aggregate, amounts owed under this Note into a number of shares that, when
combined with (i) shares converted by Caldera Systems, Inc. ("Caldera") pursuant
to that certain Secured Convertible Promissory Noted by and between Caldera and
Borrower dated on even date herewith, and (ii) shares purchased pursuant to the
warrant granted by Borrower to Canopy dated on even date herewith, or Additional
Warrants, exceeds 19% of the total outstanding shares of Borrower's Common
Stock.
2.3 Certain Transactions. The Company shall give written
notice to Noteholder of any Change of Control Transaction at least twenty (20)
business days prior to the date on which such Change of Control Transaction is
consummated. Prior to the closing of such Change of Control Transaction, the
Company shall, at Noteholder's election, either (i) repay all unpaid principal
and interest under this Note, or (ii) convert this Note into Conversion Stock at
the Note Conversion Price.
3. ISSUANCE OF CONVERSION STOCK. As soon as practicable after
conversion of this Note, the Company, at its expense, will cause to be issued in
the name of and delivered to the holder of this Note, a certificate or
certificates for the number of shares of Conversion Stock to which the holder
shall be entitled upon such conversion (bearing such legends as may be required
by applicable state and federal securities laws in the opinion of legal counsel
of the Company), together with any other securities and property to which the
holder is entitled upon such conversion under the terms of this Note. Such
conversion shall be deemed to have been made under Section 2 above on the close
of business on the date that the Note shall have been surrendered for
conversion, accompanied by written notice of election to convert. No fractional
shares will be issued upon conversion of this Note. If upon any conversion of
this Note a fraction of a share would otherwise result, then, in lieu of such
fractional share, the Company will pay the cash value of that fractional share,
calculated on the basis of the applicable Note Conversion Price.
4. ADJUSTMENT OF NUMBER OF SHARES. The number and character of shares
of Conversion Stock issuable upon conversion of this Note (or any shares of
stock or other securities or
3
4
property at the time receivable or issuable upon conversion of this Note) are
subject to adjustment upon the occurrence of any of the following events:
4.1 Adjustment for Stock Splits, Stock Dividends,
Recapitalizations, etc. In the event that the Company shall fix a record date
for the determination of holders of securities affected by any stock split,
stock dividend, reclassification, recapitalization or other similar event that
will, in the future, affect the number of outstanding shares of the Company's
capital stock, then, and in each such case, Noteholder, upon conversion of this
Note at any time after the Company shall fix the record date for such event,
shall receive, in addition to the shares of Conversion Stock issuable upon
conversion on the Conversion Date, the securities of the Company to which such
holder would have been entitled if such holder had converted this Note
immediately prior to such record date (all subject to further adjustment as
provided in this Note).
4.2 Adjustment for Dividends and Distributions. In the event
that the Company shall make or issue, or shall fix a record date for the
determination of eligible holders of securities entitled to receive, a dividend
or other distribution payable with respect to the Conversion Stock (or any
shares of stock or other securities at the time issuable upon conversion of this
Note) that is payable in (a) securities of the Company other than capital stock
or (b) any other assets, then, and in each such case, Noteholder, upon
conversion of this Note at any time after the consummation, effective date or
record date of such event, shall receive, in addition to the shares of
Conversion Stock (or such other stock or securities) issuable upon such
conversion prior to such date, the securities or such other assets of the
Company to which such holder would have been entitled upon such date if such
holder had converted this Note immediately prior thereto (all subject to further
adjustment as provided in this Note).
4.3 Adjustment for Reorganization, Consolidation, Merger. In
the event of any reorganization not considered a Change of Control Transaction
of the Company (or any other corporation the stock or other securities of which
are at the time receivable upon the conversion of this Note) after the date of
this Note, or in the event, after such date, the Company (or any such
corporation) shall consolidate with or merge into another corporation or convey
all or substantially all of its assets to another corporation where such
transaction is not considered a Change of Control Transaction, then, and in each
such case, Noteholder, upon the conversion of this Note (as provided in Section
2) at any time after the consummation of such reorganization, consolidation,
merger or conveyance, shall be entitled to receive, in lieu of the stock or
other securities and property receivable upon the conversion of this Note prior
to such consummation, the stock or other securities or property to which such
Noteholder would have been entitled upon the consummation of such
reorganization, consolidation, merger or conveyance if such holder had converted
this Note immediately prior thereto, all subject to further adjustment as
provided in this Section 4, and the successor or purchasing corporation in such
reorganization, consolidation, merger or conveyance (if other than the Company)
shall duly execute and deliver to Noteholder a supplement hereto acknowledging
such corporation's obligations under this Note. In each such case, the terms of
the Note shall be applicable to the shares of stock or other securities or
property receivable upon the
4
5
conversion of this Note after the consummation of such reorganization,
consolidation, merger or conveyance.
4.4 Conversion of Stock. In the event that all of the
authorized Conversion Stock of the Company is converted, pursuant to the
Company's Articles of Incorporation, into other capital stock or securities or
property, or the Conversion Stock otherwise ceases to exist, then Noteholder,
upon conversion of this Note at any time after the date on which the Conversion
Stock is so converted or ceases to exist (the "TERMINATION Date"), shall
receive, in lieu of the number of shares of Conversion Stock that would have
been issuable upon such conversion immediately prior to the Termination Date
(the "FORMER NUMBER OF SHARES OF CONVERSION STOCK"), the stock and other
securities and property to which such Noteholder would have been entitled to
receive upon the Termination Date if such holder had converted this Note with
respect to the Former Number of Shares of Conversion Stock immediately prior to
the Termination Date (all subject to further adjustment as provided in this
Note).
4.5 Notice of Adjustments. The Company shall promptly give
written notice of each adjustment or readjustment of the number of shares of
Conversion Stock or other securities issuable upon conversion of this Note, by
first class mail, postage prepaid, to the registered holder of this Note at the
holder's address as shown on the Company's books. The notice shall describe the
adjustment or readjustment and show in reasonable detail the facts on which the
adjustment or readjustment is based.
4.6 No Change Necessary. The form of this Note need not be
changed because of any adjustment in the number of shares of Conversion Stock
issuable upon its conversion.
4.7 Reservation of Stock. The Company has taken all necessary
corporate action and obtained all necessary government consents and approvals to
authorize the issuance of this Note and the maximum number of shares of
Conversion Stock issuable upon conversion of this Note. If at any time the
number of authorized but unissued shares of Common Stock or other securities
shall not be sufficient to effect the conversion of this Note, then the Company
will take such corporate action as may, in the opinion of its legal counsel, be
necessary to increase its authorized but unissued Stock or other securities to
such number of shares of Common Shares or other securities as shall be
sufficient for such purpose.
5. FULLY PAID SHARES. All shares of Conversion Stock issued upon the
conversion of this Note shall be validly issued, fully paid and non-assessable.
6. NO RIGHTS OR LIABILITIES AS SHAREHOLDER. This Note does not by
itself entitle Noteholder to any voting rights or other rights as a shareholder
of the Company. In the absence of conversion of this Note, no provisions of this
Note, and no enumeration herein of the rights or privileges of the holder, shall
cause such holder to be a shareholder of the Company for any purpose.
5
6
7. CORPORATE ACTION; NO IMPAIRMENT. The Company will not, by amendment
of its Articles of Incorporation or bylaws, or through reorganization,
consolidation, merger, dissolution, issue or sale of securities, repurchase of
securities, sale of assets or any other action, avoid or seek to avoid the
observance or performance of any of the terms of this Note, but will at all
times in good faith assist in the carrying out of all such terms and in the
taking of all such action as may be necessary or appropriate, or as reasonably
requested by Noteholder, in order to protect the rights of Noteholder under this
Note against wrongful impairment. The Company shall not amend its Articles of
Incorporation or issue any capital stock or non-employee options to purchase any
capital stock of the Company, other than under the Company's existing stock
plans, without the prior written consent of Noteholder, which shall not be
unreasonably withheld.
8. DEFAULT. Ten (10) days after written notice from Lender to Borrower
for monetary defaults and thirty (30) days after written notice from Lender to
Borrower for non-monetary defaults, if such defaults are not cured within such
ten (10) day or thirty day (30) periods, respectively, each of the following
shall constitute an event of default ("DEFAULT") under this Agreement:
a. Default in Payment. If Borrower fails to make any payment
due and payable under the terms of the Note, this Agreement (and under
the terms of the Intercreditor Agreement) or any other Loan Document.
b. Representations and Warranties. If any of the
representations and warranties made by Borrower shall be false or
misleading in any material respect when made.
c. Covenants. If Borrower shall be in material default under
any of the material terms, covenants, conditions, or obligations under
any Loan Document.
d. Dissolution. If Borrower is dissolved.
e. Receiver. If a receiver, trustee, or custodian is appointed
for any part of the Collateral, or any part of the Collateral is
assigned for the benefit of creditors.
f. Impairment to Lien. If at any time any Loan Document
creating a lien on any of the Collateral may be impaired by any
material lien, encumbrance or other defect other than the Prior Liens
or the Permitted Liens.
g. Bankruptcy. If a petition in bankruptcy is filed against
Xxxxxxxx, and such petition is not dismissed within ninety (90) days of
filing, a petition in bankruptcy is filed by Borrower or a receiver,
trustee or custodian of any part of the Collateral is appointed; or if
Borrower files a petition for reorganization under any of the
provisions of the Bankruptcy Act or any law, State or Federal, or makes
an assignment for the benefit of creditors or is adjudged insolvent by
any State or Federal Court of competent jurisdiction.
6
7
h. Judgment or Attachment. If a judgment is entered against
Borrower or any attachment be made for an amount in excess of
$100,000.00 and such judgment or attachment is not vacated, discharged,
stayed or bonded pending appeal, paid or otherwise fully satisfied
within thirty (30) days of the date it is entered.
9. SECURITY AGREEMENT. This Note is secured by a security interest in
certain collateral, which security interest was granted by the Company to the
original holder of this Note pursuant to the terms of a certain security
agreement (the "SECURITY AGREEMENT") dated on or about the date of this Note, by
and between the original holder of the Note and the Company, and is incorporated
herein by this reference. An Intercreditor Agreement (the "INTERCREDITOR
AGREEMENT") by and among Debtor, Secured Party and Caldera Systems, Inc.
("Xxxxxxx") establishes the relative priority of the security interests granted
hereunder and the lien held by Xxxxxxx.
10. LINE OF CREDIT. This Note evidences a line of credit. Advances
under this Note may be requested orally by any Company officer or other
authorized person. Noteholder may, but need not, require that all oral requests
be confirmed in writing. The Company agrees to be liable for all sums advanced
in accordance with the instructions of its officers or authorized persons. The
unpaid principal balance owing on this Note at any time may be evidenced by
endorsements on this Note, or by a Schedule attached to this Note.
Notwithstanding anything to the contrary contained in this Note, in no event
shall the aggregate amount of all advances made under this Note exceed
$18,000,000, notwithstanding the unpaid principal balance owing on this Note at
any given time. Noteholder has no obligation to make advances under this Note if
the Company is in default under the Security Agreement or that certain Loan
Agreement (the "LOAN AGREEMENT") by and between the Company and Secured Party
dated on or about the date of this Note.
11. SET-OFF RIGHT. At any time prior to payment in full of the entire
principal balance of this Note, plus accrued interest hereunder, Noteholder
shall have the right, at the holder's option and without the requirement of
giving any prior notice, to set off outstanding principal and accrued interest
on this Note, in whole or in part, by applying as a set-off towards the payment
thereof any Common Stock of Caldera International, Inc. ("New Caldera") held by
Noteholder as collateral under the Security Agreement. The value to be used for
any such set-off of New Caldera Common Stock shall be 75% of the closing price
as reported by NASDAQ of New Caldera's Common Stock on the date of such set-off.
No later than the business day after the date of such application, Noteholder
(or the then holder of this Note) shall notify the Company of the number of
shares of such of Common Stock of New Caldera applied to such set-off.
12. REGISTRATION RIGHTS. Upon conversion of this Note into Conversion
Stock of the Company pursuant to the terms of Section 2 above, Noteholder shall
have the rights provided in this Section 12 with respect to Registrable
Securities as defined below.
12.1 As used in this Section 12, the following terms shall
have the following meanings:
7
8
(a) "ACT" shall mean the Securities Act of 1933, as
amended.
(b) "AFFILIATE" shall mean, with respect to any
Person (as defined below), any other Person controlling, controlled by or under
direct or indirect common control with such Person (for the purposes of this
definition "control," when used with respect to any specified Person, shall mean
the power to direct the management and policies of such person, directly or
indirectly, whether through ownership of voting securities, by contract or
otherwise; and the terms "controlling" and "controlled" shall have meanings
correlative to the foregoing).
(c) "BUSINESS DAY" shall mean a day Monday through
Friday on which banks are generally open for business in New York.
(d) "HOLDERS" shall mean Noteholder or any person to
whom the rights under this Section 12 have been transferred in accordance with
Section 12.9 hereof.
(e) "PERSON" shall mean any person, individual,
corporation, limited liability company, partnership, trust or other
non-governmental entity or any governmental agency, court, authority or other
body (whether foreign, federal, state, local or otherwise).
(f) The terms "REGISTER," "REGISTERED" and
"REGISTRATION" refer to the registration effected by preparing and filing a
registration statement in compliance with the Act, and the declaration or
ordering of the effectiveness of such registration statement.
(g) "REGISTRABLE SECURITIES" shall mean (i) the
shares of Conversion Stock issuable upon conversion of this Note pursuant to
Section 2 above; and (ii) any shares of Conversion Stock issued as (or issuable
upon the conversion of any warrant, right or other security which is issued as)
a dividend or other distribution with respect to or in replacement of such
Conversion Stock; provided, however, that securities shall only be treated as
Registrable Securities if and only for so long as they (A) have not been
disposed of pursuant to a registration statement declared effective by the
Commission, (B) have not been sold in a transaction exempt from the registration
and prospectus delivery requirements of the Act so that all transfer
restrictions and restrictive legends with respect thereto are removed upon the
consummation of such sale, (C) are held by a Holder or a permitted transferee
pursuant to Section 12.9, or (D) have not been sold or are not available for
sale in transactions pursuant to Rule 144(k) promulgated under the Act.
(h) "REGISTRATION EXPENSES" shall mean all reasonable
expenses incurred by the Company in complying with Section 12.2 hereof,
including, without limitation, all reasonable registration, qualification and
filing fees, printing expenses, fees and expenses of counsel for the Company,
blue sky fees and expenses and the reasonable expense of any special audits
incident to or required by any such registration (but excluding the fees of
legal counsel for any Holder).
(i) "REGISTRATION STATEMENT" shall have the meaning
ascribed to such term in Section 12.2.
8
9
(j) "REGISTRATION PERIOD" shall have the meaning
ascribed to such term in Section 12.4.
(k) "SELLING EXPENSES" shall mean all underwriting
discounts and selling commissions applicable to the sale of Registrable
Securities and all fees and expenses of legal counsel for any Holder.
12.2 No later than thirty (30) days after the Conversion Date
(the "FILING DATE"), the Company shall file a "shelf" registration statement on
the appropriate form (the "REGISTRATION STATEMENT") with the Commission and use
its best efforts to effect the registration, qualifications or compliances
(including, without limitation, the execution of any required undertaking to
file post-effective amendments, appropriate qualifications or exemptions under
applicable blue sky or other state securities laws and appropriate compliance
with applicable securities laws, requirements or regulations) of the Registrable
Securities prior to the date which is as soon as reasonably practical
thereafter, but in any event on or before 90 days after the Conversion Date.
12.3 All Registration Expenses incurred in connection with any
registration, qualification, exemption or compliance pursuant to Section 12.2
shall be borne by the Company.
12.4 In the case of the registration, qualification, exemption
or compliance effected by the Company pursuant to this Agreement, the Company
shall, upon reasonable request, inform each Holder as to the status of such
registration, qualification, exemption and compliance. At its expense the
Company shall:
(a) Use its commercially reasonable efforts to keep
such registration, and any qualification, exemption or compliance under state
securities laws which the Company determines to obtain, continuously effective
until the Holders have completed the distribution described in the registration
statement relating thereto. The period of time during which the Company is
required hereunder to keep the Registration Statement effective is referred to
herein as "THE REGISTRATION PERIOD." Notwithstanding the foregoing, at the
Company's election, the Borrower may cease to keep such registration,
qualification, exemption or compliance effective with respect to any Registrable
Securities, and the registration rights of a Holder shall expire, at such time
as they are no longer, by reason of Rule 144 promulgated under the Act (or other
exemption from registration acceptable to the Company) required to register for
the sale thereof; and
(b) advise the Holders:
(i) when the Registration Statement or any
amendment thereto has been filed with the Commission and when the Registration
Statement or any post-effective amendment thereto has become effective;
9
10
(ii) of any request by the Commission for
amendments or supplements to the Registration Statement or the prospectus
included therein or for additional information;
(iii) of the issuance by the Commission of
any stop order suspending the effectiveness of the Registration Statement or the
initiation of any proceedings for such purpose;
(iv) of the receipt by the Company of any
notification with respect to the suspension of the qualification of the
Registrable Securities included therein for sale in any jurisdiction or the
initiation or threatening of any proceeding for such purpose; and
(v) of the happening of any event that
requires the making of any changes in the Registration Statement or the
prospectus so that, as of such date, the statements therein are not misleading
and do not omit to state a material fact required to be stated therein or
necessary to make the statements therein (in the case of the prospectus, in the
light of the circumstances under which they were made) not misleading;
(c) make every reasonable effort to obtain the
withdrawal of any order suspending the effectiveness of any Registration
Statement at the earliest possible time;
(d) furnish to each Holder upon request, without
charge, at least one copy of such Registration Statement and any post-effective
amendment thereto, including financial statements and schedules, and, if the
Holder so requests in writing, all exhibits (including those incorporated by
reference) in the form filed with the Commission;
(e) during the Registration Period, deliver to each
Holder, without charge, as many copies of the prospectus included in such
Registration Statement and any amendment or supplement thereto as such Holder
may reasonably request; and the Company consents to the use, consistent with the
provisions hereof, of the prospectus or any amendment or supplement thereto by
each of the selling Holders of Registrable Securities in connection with the
offering and sale of the Registrable Securities covered by the prospectus or any
amendment or supplement thereto.
(f) prior to any public offering of Registrable
Securities pursuant to any Registration Statement, register or qualify or obtain
an exemption for offer and sale under the securities or blue sky laws of such
jurisdictions as any such Holders reasonably request in writing, provided that
the Company shall not for any such purpose be required to qualify generally to
transact business as a foreign corporation in any jurisdiction where it is not
so qualified or to consent to general service of process in any such
jurisdiction, and do any and all other acts or things reasonably necessary or
advisable to enable the offer and sale in such jurisdictions of the Registrable
Securities covered by such Registration Statement;
10
11
(g) cooperate with the Holders to facilitate the
timely preparation and delivery of certificates representing Registrable
Securities to be sold pursuant to any Registration Statement free of any
restrictive legends to the extent not required at such time and in such
denominations and registered in such names as Holders may request at least three
(3) business days prior to sales of Registrable Securities pursuant to such
Registration Statement;
(h) upon the occurrence of any event contemplated by
Section 12.4(b)(v) above, the Company shall promptly prepare a post-effective
amendment to the Registration Statement or a supplement to the related
prospectus, or file any other required document so that, as thereafter delivered
to purchasers of the Registrable Securities included therein, the prospectus
will not include any untrue statement of a material fact or omit to state any
material fact necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
12.5 The Holders shall have no right to take any action to
restrain, enjoin or otherwise delay any registration pursuant to Section 12.2
hereof as a result of any controversy that may arise with respect to the
interpretation or implementation of this Agreement.
12.6 (a) To the extent permitted by law, the Company shall
indemnify each Holder and each person controlling such Holder within the meaning
of Section 15 of the Act, with respect to which any registration, qualification
or compliance has been effected pursuant to this Agreement, against all claims,
losses, damages and liabilities (or action in respect thereof), including any of
the foregoing incurred in settlement of any litigation, commenced or threatened
(subject to Section 12.6(c) below), arising out of or based on any untrue
statement (or alleged untrue statement) of a material fact contained in any
registration statement, prospectus or offering circular, or any amendment or
supplement thereof, incident to any such registration, qualification or
compliance, or based on any omission (or alleged omission) to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, in light of the circumstances in which they were made,
and will reimburse each Holder and each person controlling such Holder, for
reasonable legal and other expenses reasonably incurred in connection with
investigating or defending any such claim, loss, damage, liability or action as
incurred; provided that the Company will not be liable in any such case to the
extent that any untrue statement or omission or allegation thereof is made in
reliance upon and in conformity with written information furnished to the
Company by or on behalf of such Holder and stated to be specifically for use in
preparation of such registration statement, prospectus or offering circular;
and, provided further, that the Company will not be liable in any such case
where the claim, loss, damage or liability arises out of or is related to the
failure of the Holder to comply with the covenants and agreements contained in
this Agreement respecting sales of Registrable Securities, and except that the
foregoing indemnity agreement is subject to the condition that, insofar as it
relates to any such untrue statement or alleged untrue statement or omission or
alleged omission made in the preliminary prospectus but eliminated or remedied
in the amended prospectus on file with the Commission at the time the
registration statement becomes effective or in the amended prospectus filed with
the Commission pursuant to Rule 424(b) or in the prospectus subject to
completion and term sheet under Rule 434 of the Act,
11
12
which together meet the requirements of Section 10(a) of the Act (the "FINAL
PROSPECTUS"), such indemnity agreement shall not inure to the benefit of any
such Holder or any such controlling person, if a copy of the Final Prospectus
furnished by the Company to the Holder for delivery was not furnished to the
person or entity asserting the loss, liability, claim or damage at or prior to
the time such furnishing is required by the Act and the Final Prospectus would
have cured the defect giving rise to such loss, liability, claim or damage.
(b) Each Holder will severally, if Registrable
Securities held by such Holder are included in the securities as to which such
registration, qualification or compliance is being effected, indemnify the
Company, each of its directors and officers, each underwriter of the Registrable
Securities and each person who controls the Company within the meaning of
Section 15 of the Act, against all claims, losses, damages and liabilities (or
actions in respect thereof), including any of the foregoing incurred in
settlement of any litigation, commenced or threatened (subject to Section
12.6(c) below), arising out of or based on any untrue statement (or alleged
untrue statement) of a material fact contained in any registration statement,
prospectus or offering circular, or any amendment or supplement thereof,
incident to any such registration, qualification or compliance, or based on any
omission (or alleged omission) to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading, in
light of the circumstances in which they were made, and will reimburse the
Company, such directors and officers, each underwriter of the Registrable
Securities and each person controlling the Company for reasonable legal and any
other expenses reasonably incurred in connection with investigating or defending
any such claim, loss, damage, liability or action as incurred, in each case to
the extent, but only to the extent, that such untrue statement or omission or
allegation thereof is made in reliance upon and in conformity with written
information furnished to the Company by or on behalf of the Holder and stated to
be specifically for use in preparation of such registration statement,
prospectus or offering circular; provided that the indemnity shall not apply to
the extent that such claim, loss, damage or liability results from the fact that
a current copy of the prospectus was not made available to the Holder and such
current copy of the prospectus would have cured the defect giving rise to such
loss, claim, damage or liability. Notwithstanding the foregoing, in no event
shall a Holder be liable for any such claims, losses, damages or liabilities in
excess of the proceeds received by such Holder in the offering, except in the
event of fraud by such Xxxxxx.
(c) Each party entitled to indemnification under this
Section 12.6 (the "INDEMNIFIED PARTY") shall give notice to the party required
to provide indemnification (the "INDEMNIFYING PARTY") promptly after such
Indemnified Party has actual knowledge of any claim as to which indemnity may be
sought, and shall permit the Indemnifying Party to assume the defense of any
such claim or any litigation resulting therefrom, provided that counsel for the
Indemnifying Party, who shall conduct the defense of such claim or litigation,
shall be approved by the Indemnified Party (whose approval shall not
unreasonably be withheld), and the Indemnified Party may participate in such
defense at such Indemnified Party's expense, and provided further that the
failure of any Indemnified Party to give notice as provided herein shall not
relieve the Indemnifying Party of its obligations under this Agreement, unless
such failure is materially prejudicial to the Indemnifying Party in defending
such claim or litigation. An Indemnifying Party shall not be liable
12
13
for any settlement of an action or claim effected without its written consent
(which consent will not be unreasonably withheld).
(d) If the indemnification provided for in this
Section 12.6 is held by a court of competent jurisdiction to be unavailable to
an Indemnified Party with respect to any loss, liability, claim, damage or
expense referred to therein, then the Indemnifying Party, in lieu of
indemnifying such Indemnified Party thereunder, shall contribute to the amount
paid or payable by such Indemnified Party as a result of such loss, liability,
claim, damage or expense in such proportion as is appropriate to reflect the
relative fault of the Indemnifying Party on the one hand and of the Indemnified
Party on the other in connection with the statements or omissions which resulted
in such loss, liability, claim, damage or expense as well as any other relevant
equitable considerations. The relative fault of the Indemnifying Party and of
the Indemnified Party shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or the
omission to state a material fact relates to information supplied by the
Indemnifying Party or by the Indemnified Party and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission.
12.7 (a) Each Holder agrees that, upon receipt of any notice
from the Company of the happening of any event requiring the preparation of a
supplement or amendment to a prospectus relating to Registrable Securities so
that, as thereafter delivered to the Holders, such prospectus shall not contain
an untrue statement of a material fact or omit to state any material fact
required to be stated therein or necessary to make the statements therein not
misleading, each Holder will forthwith discontinue disposition of Registrable
Securities pursuant to the registration statement contemplated by Section 12.2
until its receipt of copies of the supplemented or amended prospectus from the
Company and, if so directed by the Company, each Holder shall deliver to the
Company all copies, other than permanent file copies then in such Xxxxxx's
possession, of the prospectus covering such Registrable Securities current at
the time of receipt of such notice.
(b) Each Holder shall suspend, upon request of the
Company, any disposition of Registrable Securities pursuant to the Registration
Statement and prospectus contemplated by Section 12.2 during (i) any period not
to exceed two 60-day periods within any one 12-month period the Company requires
in connection with a primary underwritten offering of equity securities and (ii)
any period, not to exceed one 45-day period per circumstance or development,
when the Company determines in good faith that offers and sales pursuant thereto
should not be made by reason of the presence of material undisclosed
circumstances or developments with respect to which the disclosure that would be
required in such a prospectus is premature, would have an adverse effect on the
Company or is otherwise inadvisable.
(c) As a condition to the inclusion of its
Registrable Securities, each Holder shall furnish to the Company such
information regarding such Holder and the distribution proposed by such Holder
as the Company may request in writing or as shall be required in connection with
any registration, qualification or compliance referred to in this Section 12.
13
14
(d) Each Holder hereby covenants with the Company (i)
not to make any sale of the Registrable Securities without effectively causing
the prospectus delivery requirements under the Act to be satisfied, and (ii) if
such Registrable Securities are to be sold by any method or in any transaction
other than on a national securities exchange, Nasdaq National Market, Nasdaq
SmallCap Market or in the over-the-counter market, in privately negotiated
transactions, or in a combination of such methods, to notify the Company at
least five (5) business days prior to the date on which the Holder first offers
to sell any such Registrable Securities.
(e) Each Holder acknowledges and agrees that the
Registrable Securities sold pursuant to the Registration Statement described in
this Section are not transferable on the books of the Company unless the stock
certificate submitted to the transfer agent evidencing such Registrable
Securities is accompanied by a certificate reasonably satisfactory to the
Company to the effect that (i) the Registrable Securities have been sold in
accordance with such Registration Statement and (ii) the requirement of
delivering a current prospectus has been satisfied.
(f) Each Holder agrees not to take any action with
respect to any distribution deemed to be made pursuant to such registration
statement which would constitute a violation of Regulation M under the Exchange
Act or any other applicable rule, regulation or law.
(g) At the end of the period during which the Company
is obligated to keep the Registration Statement current and effective as
described above, the Holders of Registrable Securities included in the
Registration Statement shall discontinue sales of shares pursuant to such
Registration Statement upon receipt of notice from the Company of its intention
to remove from registration the shares covered by such Registration Statement
which remain unsold, and such Holders shall notify the Company of the number of
shares registered which remain unsold immediately upon receipt of such notice
from the Company.
12.8 With a view to making available to the Holders the
benefits of certain rules and regulations of the Commission which at any time
permit the sale of the Registrable Securities to the public without
registration, the Company shall use its reasonable best efforts to:
(a) make and keep public information available, as
those terms are understood and defined in Rule 144 under the Act, at all times;
(b) file with the Commission in a timely manner all
reports and other documents required of the Company under the Exchange Act; and
(c) so long as a Holder owns any unregistered
Registrable Securities, furnish to such Holder, upon any reasonable request, a
written statement by the Company as to its compliance with Rule 144 under the
Act, and of the Exchange Act, a copy of the most recent annual or quarterly
report of the Company, and such other reports and documents of the Company as
such Holder may reasonably request in availing itself of any rule or regulation
of the Commission allowing a Holder to sell any such securities without
registration.
14
15
12.9 The rights to cause the Company to register Registrable
Securities granted to the Holders by the Company under Section 12.1 may be
assigned in full by a Holder in connection with a transfer by such Holder of at
least 500,000 shares of its Registrable Securities, provided, however, that (i)
such transfer may otherwise be effected in accordance with applicable securities
laws; (ii) such Holder gives prior written notice to the Company; and (iii) such
transferee agrees to comply with the terms and provisions of this Note, and such
transfer is otherwise in compliance with this Note. Except as specifically
permitted by this Section 12.9, the rights of a Holder with respect to
Registrable Securities as set out herein shall not be transferable to any other
Person, and any attempted transfer shall cause all rights of such Holder therein
to be forfeited.
12.10 With the written consent of the Company and the Holders
holding at least a majority of the Registrable Securities that are then
outstanding, any provision of this Section 12 may be waived (either generally or
in a particular instance, either retroactively or prospectively and either for a
specified period of time or indefinitely) or amended. Upon the effectuation of
each such waiver or amendment, the Company shall promptly give written notice
thereof to the Holders, if any, who have not previously received notice thereof
or consented thereto in writing.
12.11 Except to the extent any delay is due to the failure of
a Holder to reasonably cooperate in providing to the Company such information as
shall be reasonably requested by the Company for use in the Registration
Statement, in the event that the Registration Statement is not filed by the date
that is 30 days following the Conversion Date, the Company shall, for no
additional consideration, pay to each Holder as liquidated damages and not as a
penalty an amount in cash equal to one percent (1%) of the outstanding principal
then outstanding hereunder for each 15 day period in which the Registration
Statement remains unfiled; provided, however, that in no event shall the amount
of liquidated damages payable by the Company to any Holder pursuant to this
Section 12.11 exceed ten percent (10%) of the amount outstanding hereunder.
13. WAIVER AND AMENDMENT. ANY PROVISION OF THIS NOTE MAY BE AMENDED,
WAIVED, MODIFIED, DISCHARGED OR TERMINATED SOLELY UPON THE WRITTEN CONSENT OF
BOTH THE COMPANY AND NOTEHOLDER.
14. ASSIGNMENT; BINDING UPON SUCCESSORS AND ASSIGNS. The Company may
not assign any of its obligations hereunder without the prior written consent of
Noteholder. The terms and conditions of this Note shall inure to the benefit of
and be binding upon the successors and permitted assigns of the parties.
15. XXXXXX OF NOTICE; ATTORNEYS' FEES. The Company and all endorsers of
this Note hereby waive notice, demand, notice of nonpayment, presentment,
protest and notice of dishonor. If any action at law or in equity is necessary
to enforce this Note or to collect payment under this Note, Noteholder shall be
entitled to recover, as an element of the costs of suit and not as damages,
reasonable attorneys' fees, costs and necessary disbursements in addition to any
other relief to which
15
16
it may be entitled. Noteholder will be entitled to recover its costs of suit,
regardless of whether such suit proceeds to final judgment.
16. CONSTRUCTION OF NOTE. The terms of this Note have been negotiated
by the Company, Noteholder of this Note and their respective attorneys and the
language hereof will not be construed for or against either Company or
Noteholder. Unless otherwise explicitly set forth, a reference to a Section will
mean a Section in this Note. The titles and headings herein are for reference
purposes only and will not in any manner limit the construction of this Note
which will be considered as a whole.
17. NOTICES. Any notice or other communication required or permitted to
be given under this Note shall be in writing, shall be delivered by hand or
overnight courier service, by certified mail, postage prepaid, or by facsimile,
and will be deemed given upon delivery, if delivered personally, one business
day after deposit with a national courier service for overnight delivery, or one
business day after transmission by facsimile with confirmation of receipt, and
three days after deposit in the mails, if mailed, to the following addresses:
(i) If to Noteholder:
The Canopy Group, Inc.
000 Xxxxx 000 Xxxx, Xxxxx 000
Xxxxxx, Xxxx 00000
16
17
With a copy (which shall not constitute notice) to:
Xxxxxxx Xxxxx & Xxxxxxx
000 X. Xxxx Xxxxxx, Xxxxx 0000
Xxxx Xxxx Xxxx, Xxxx 00000
Attention: Xxxxx Xxxxxxxxxxx
(ii) If to Company:
The Santa Xxxx Operation, Inc.
000 Xxxxxxx
Xxxxx Xxxx, Xxxxxxxxxx 00000
Attention: Chief Executive Officer and Law
and Corporate Affairs
With a copy (which shall not constitute notice) to:
Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx
000 Xxxx Xxxx Xxxx
Xxxx Xxxx, Xxxxxxxxxx 00000
Attention: Xxxxxxx Xxxxxxx
or to such other address as may have been furnished to the other party in
writing pursuant to this Section 17, except that notices of change of address
shall only be effective upon receipt.
18. GOVERNING LAW; CONSENT TO JURISDICTION. This Note and all matters
relating to this Note shall be governed by and construed in accordance with the
internal laws (and not the law of conflicts) of the State of Utah. Each of the
parties submits to the jurisdiction of any state or federal court sitting in
Salt Lake County, Utah, in any action or proceeding arising out of or relating
to this Note or any other matter arising between the parties and agrees that all
claims in respect of the action or proceeding shall be heard and determined in
any such court. Each party also agrees not to bring any action or proceeding
arising out of or relating to this Note or any other matter arising between the
parties in any other court. Each of the parties waives any defense of
inconvenient forum to the maintenance of any action or proceeding so brought.
[Signature page to follow]
17
18
IN WITNESS WHEREOF, the Company has caused this Note to be signed in its name as
of the date first above written.
THE SANTA XXXX OPERATION, INC.
By:
------------------------------
Name:
------------------------------
Title:
------------------------------
AGREED AND ACCEPTED:
THE CANOPY GROUP, INC.
By:
------------------------------
Name:
------------------------------
Title:
------------------------------
