EXHIBIT 10.10
THIS NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED,
OR THE SECURITIES LAWS OF ANY STATE OR OTHER JURISDICTION OF THE UNITED STATES
AND MAY NOT BE SOLD OR OTHERWISE DISPOSED OF EXCEPT PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT UNDER SUCH ACT AND APPLICABLE STATE SECURITIES LAWS OR
PURSUANT TO AN APPLICABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF SUCH
ACT AND SUCH LAWS. THIS NOTE IS ALSO SUBJECT TO RESTRICTIONS ON TRANSFER AS SET
FORTH HEREIN.
THE PATHWAYS GROUP, INC.
SERIES A SENIOR SECURED NOTE
$650,000.00 Dated: June 30, 2000
FOR VALUE RECEIVED, the undersigned, The Pathways Group, Inc.,
a company organized under the laws of Delaware (the "Company"), promises to pay
to the order of ▇▇▇▇▇▇ Merchant Partners, LLC (the "Holder"), the principal
aggregate sum of Six Hundred Fifthy Thousand Dollars ($650,000.00), on or before
June 30, 2001 (the "Maturity Date") with interest from the date hereof at the
rate of 10% per annum on such principal amount. Interest shall be computed on
the basis of a 365-day year and the actual number of days elapsed. Interest
shall be due and payable on the Maturity Date and shall accrue until the entire
principal amount is paid. All amounts due and owing hereunder shall be payable
in lawful money of the United States of America, in immediately available funds,
at the principal office of the Holder or at such other place as the Holder may
designate from time to time in writing to the Company. Any payment on this Note
coming due on a Saturday, a Sunday or a day which is a legal holiday in the
place at which a payment is to be made hereunder shall be made on the next
succeeding day which is a business day in such place, and any such extension of
the time of payment shall be included in the computation of interest hereunder.
This Note is issued pursuant and subject to and is entitled to the benefits of a
certain Financing Agreement dated as of June 30, 2000, by and between the
Company, ▇▇▇▇▇ ▇. ▇▇▇▇, ▇▇ and Holder (the "Financing Agreement") and a Security
Agreement dated as of June 30, 2000, by and between the Company and Holder and
Intellectual Property Security dated as of June 30, 2000, by and between the
Company and Holder. Capitalized words not defined herein shall have the meanings
set forth in the Financing Agreement. Except as otherwise provided in the
Financing Agreement, the Notes shall rank senior to or pari passu to all other
Indebtedness of the Company whether now outstanding or hereafter incurred.
1. General.
Interest on this Note, computed on the basis of a 365-day year
shall be payable on the Maturity Date. The principal of this Note shall be
payable in one installment, together with accrued interest, on the Maturity
Date.
This Note may be prepaid in whole or in part at any time and
from time to time at the option of the Company without payment of any penalty or
premium.
Subject to applicable law, upon and during the occurrence of
an Event of Default, this Note shall bear interest, from the date of the
occurrence of such Event of Default until such Event of Default is cured or
waived, at a rate equal to 12% per annum.
If, for any reason whatsoever, the interest paid or received
on this Note during its full term produces a rate which exceeds the maximum
interest rate permitted by law hereunder, the holder of this note shall refund
to the payor, or at the holder's option, credit against the principal of this
Note such portion of said interest as shall be necessary to cause the interest
paid on this Note to produce a rate equal to such maximum lawful rate.
2. Covenants. The Company covenants and agrees that, until
this Note (including any accrued and unpaid interest) is paid in full:
2.1 The Company shall preserve and maintain its corporate
existence and its rights and franchises.
2.2 The Company shall comply, in all material respects, with
all applicable laws, rules, regulations and orders.
2.3 The Company shall pay promptly when due (i) all taxes,
assessments and governmental charges imposed upon it or upon its property, and
(ii) all claims (including, without limitation, claims for labor, materials,
supplies or services) which might, if unpaid, become a Lien (as hereinafter
defined) upon its property, unless, in each case, the validity or amount thereof
is being contested in good faith by appropriate proceedings and the Company has
maintained adequate reserves in accordance with generally accepted accounting
principles in the United States consistently applied with respect thereto.
2.4 The Company shall permit any representative of the Holder
to visit and inspect any property of the Company and its subsidiaries and to
examine books and records of the Company and its subsidiaries and to make copies
and take extracts therefrom, and to discuss the affairs, finances and accounts
of the Company and its subsidiaries with officers of the Company, all during
reasonable business hours, upon reasonable notice and as often as the Holder may
reasonably request, subject, in the case of any proprietary or confidential
material, to appropriate measures to ensure the confidentiality thereof.
2.5 The Company shall maintain and keep, or cause to be
maintained and kept, its properties in all material respects in good repair,
working order and condition, and from time to time make or cause to be made all
necessary repairs, renewals, replacements and improvements so that the business
carried on in connection therewith may be properly and advantageously conducted
at all times. The Company shall conduct continuously and operate actively its
business according to good business practices.
2.6 The Company shall not merge into or consolidate with any
other person, or sell, lease or otherwise dispose of all or any substantial part
of its property or assets to any other person, other than a merger of any of the
subsidiaries into the Company or any other
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subsidiary of the Company or a sale, lease or other disposition of all or any
substantial part of the property or assets by any Subsidiaries to the Company or
any other Subsidiary.
2.7 The Company shall not create, incur, suffer or permit to
exist, or assume or guarantee, directly or indirectly, or become or remain
liable with respect to any Indebtedness, whether direct, indirect, absolute,
contingent or otherwise, except the following: (a) Indebtedness under the
Initial Notes, the Line of Credit Notes and the Exchange Notes; (b) Indebtedness
secured by liens permitted by Section 2.8; (c) other liabilities existing on the
date of this Series A Senior Secured Note and heretofore disclosed to the Holder
in writing; (d) current accounts payable and unsecured current liabilities, not
the result of borrowing, to vendors, suppliers and persons providing services,
for expenditures for goods and services normally required by the Company in the
ordinary course of business and on ordinary trade terms; (e) the endorsement of
checks or other negotiable instruments in the ordinary course of business and
(f) other contingent obligations not to exceed $50,000 in the aggregate at any
one time outstanding.
2.8 The Company shall not create, incur, assume or suffer to
exist, any Lien on any of its property now owned or hereafter acquired to secure
any Indebtedness, other than:
(a) Liens to Holder pursuant to the Security Agreement and
Intellectual Property Security Agreement;
(b) Liens existing on the date hereof;
(c) Permitted Liens;
(d) Easements, rights-of-way, restrictions and other similar
charges or encumbrances not interfering with the ordinary conduct of the
business of the Company or any of its Subsidiaries
(e) Liens arising in connection with the financing of
acquisitions of equipment, inventory and other assets in connection with the
Company's business; provided such financings do not involve in excess of $25,000
per transaction or $250,000 in the aggregate at any one time; or
(f) Liens on properties or assets of a person existing at the
time such person becomes a Subsidiary or is combined or consolidated with or
into the Company or any Subsidiary, and not created in contemplation of such
event.
For purposes of this Series A Senior Secured Note, "Lien"
means any mortgage, pledge, security interest, encumbrance, lien, charge or
deposit arrangement or other arrangement having the practical effect of the
foregoing and shall include the interest of a vendor or lessor under any
conditional sale agreement, capitalized lease or other title retention
agreement.
2.9 The Company shall not make any loan, advance, extension of
credit or capital contribution to, or make any Investment in, any person, or
make any commitment to make such extension of credit or Investment other than
(a) Permitted Investment Securities; (b)
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extensions of trade credit in the ordinary course of business; (c) normal and
reasonable advances in the ordinary course of business to officers and
employees, and (d) Investments in Subsidiaries.
2.10 The Company shall furnish to the Holder the following:
(a) as soon as available and in any event within 45 days after
the end of each of the first three quarters of each fiscal year of the Company,
an unaudited consolidated balance sheet of the Company and its consolidated
subsidiaries as at the end of each such quarter and unaudited consolidated
statements of operations and retained earnings and statement of cash flows of
the Company and its consolidated subsidiaries for such quarter and for the
period commencing at the end of the previous fiscal year and ending with the end
of such quarter, certified by a senior financial officer of the Company,
together with a certificate of such senior financial officer stating that no
Event of Default or any event which, with notice or lapse of time or both, would
constitute an Event of Default, has occurred and is continuing or, if an Event
of Default or such event has occurred and is continuing, a statement as to the
nature thereof and the actions taken or planned to be taken by the Company with
respect thereto;
(b) as soon as available and in any event within 120 days
after the end of each fiscal year of the Company, a consolidated balance sheet
of the Company and its consolidated subsidiaries as at the end of such year and
consolidated statements of operations and retained earnings and statement of
cash flows of the Company and its consolidated subsidiaries for the period
commencing at the end of the previous fiscal year and ending with the end of
such year, certified by the Company's current auditors or other independent
public accountants, together with a certificate of such accounting firm stating
that in the course of the regular audit of the business of the Company and its
consolidated Subsidiaries, which audit was conducted by such accounting firm in
accordance with generally accepted auditing standards in the United States, such
accounting firm has obtained no knowledge that an Event of Default or an event
which, with notice or lapse of time or both, would constitute an Event of
Default, or if an Event of Default or such an event has occurred and is
continuing, a statement as to the nature thereof, and
(c) promptly and in any event within two business days after
the Company becomes aware of the existence of any Event of Default, any event
which, with the giving of notice or the lapse of time or both would constitute
an event of default, or any development or other information (other than
generally applicable economic or market factors) which is likely to materially
and adversely affect the properties, business, prospects, profits or financial
condition of the Company or the company's ability to perform its obligations
under this Note or the Transaction Documents, telephonic notice specifying the
nature of such event of default, event, development or information, including
the anticipated effect thereof, which notice shall be promptly confirmed in
writing within five days.
3. Defaults and Remedies.
3.1 Events of Default. An "Event of Default" shall occur if:
(a) the Company shall default in the payment of the principal
of or interest on this Note, when and as the same shall become due and payable,
whether at maturity or by acceleration or otherwise; or
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(b) the Company shall default in the due observance or
performance of any other covenant, condition or agreement on the part of the
Company to be observed or performed pursuant to the terms of any Transaction
Document (other than those referred to in clause (i) of this Section 3.1), and
such default shall continue for 30 days after the earlier of (i) the date the
Company has knowledge of such default or (ii) the date written notice thereof,
specifying such default and, if such default is capable of being remedied,
requesting that the same be remedied, shall have been given to the Company by
the Holder; provided, that, in either event, such default is cured within 45
days of the date upon which the default occurred; or
(c) any representation, warranty, certification or statement
made by or on behalf of the Company in Finance Documents, or in any certificate
or other document delivered pursuant hereto or thereto, shall have been
incorrect in any material respect when made unless the same is capable of being
cured or corrected and is promptly cured or corrected as soon as the Company has
knowledge thereof and prior to being cured or corrected does not have a material
adverse effect on the Company; or
(d) an involuntary proceeding shall be commenced or an
involuntary petition shall be filed in a court of competent jurisdiction seeking
(A) relief in respect of the Company or any of its subsidiaries, or of a
substantial part of its property or assets, under Title 11 of the United States
Code, as now constituted or hereafter amended, or any other bankruptcy,
insolvency, receivership or similar law, (B) the appointment of a receiver,
trustee, custodian, sequestrator, conservator or similar official for the
Company or any of its subsidiaries, or for a substantial part of its property or
assets, or (C) the winding up or liquidation of the Company or any of its
subsidiaries; and such proceeding or petition shall continue undismissed for 60
days, or an order or decree approving or ordering any of the foregoing shall be
entered; or
(e) the Company or any of its subsidiaries shall (A)
voluntarily commence any proceeding or file any petition seeking relief under
Title 11 of the United States Code, as now constituted or hereafter amended, or
any other bankruptcy, insolvency, receivership or similar law, (B) consent to
the institution of, or fail to contest in a timely and appropriate manner, any
proceeding or the filing of any petition described in paragraph (d) of this
Section 3.1, (C) apply for or consent to the appointment of a receiver, trustee,
custodian, sequestrator, conservator or similar official for the Company or any
subsidiary, or for a substantial part of its property or assets, (D) file an
answer admitting the material allegations of a petition filed against it in any
such proceeding, (E) make a general assignment for the benefit of creditors, (F)
become unable, admit in writing its inability or fail generally to pay its debts
as they become due or (G) take any action for the purpose of effecting any of
the foregoing; or
(f) one or more judgments for the payment of money in an
aggregate amount in excess of $250,000 (not including any amounts covered by
insurance) shall be rendered against the Company, any Subsidiary or both and the
same shall remain undischarged for a period of 45 days during which execution
shall not be effectively stayed, or any action shall be legally taken by a
judgment creditor to levy upon assets or properties of the Company or any of its
subsidiaries to enforce any such judgment; or
(g) the occurrence of any event or the existence of any
condition that results in the acceleration of the maturity of any Indebtedness
of the Company for borrowed money, the
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principal of which Indebtedness equals or exceeds $250,000 or, by reason of the
expiration of any applicable grace period or otherwise, then enables the holder
of such Indebtedness or any person acting on such holder's behalf to accelerate
the maturity thereof.
3.2 Acceleration. If an Event of Default occurs under clauses
(d) or (e) of Section 3.1 hereof, then the outstanding principal of and all
accrued interest on this Note shall automatically become immediately due and
payable, without presentment, demand, protest or notice of any kind, all of
which are expressly waived. If any other Event of Default occurs and is
continuing, the Holder by written notice to the Company may declare the
principal of and accrued interest on the Note to be due and payable immediately.
Upon such declaration, such principal and interest shall become immediately due
and payable. The Holder may rescind an acceleration and its consequences if all
existing Events of Default have been cured or waived, except nonpayment of
principal or interest that has become due solely because of the acceleration,
and if the rescission would not conflict with any judgment or decree.
4. Suits for Enforcement.
4.1 Upon the occurrence of any one or more Events of Default,
the Holder may proceed to protect and enforce its rights by suit in equity,
action at law or by other appropriate proceeding, whether for the specific
performance of any covenant or agreement contained in this Note or in aid of the
exercise of any power granted in this Note, or may proceed to enforce the
payment of this Note, or to enforce any other legal or equitable right of the
Holder.
4.2 The Holder may direct the time, method and place of
conducting any proceeding for any remedy available to itself.
4.3 In case of any default under this Note, the Company will
pay to the Holder such amount as shall be sufficient to cover the costs and
expenses of such Holder due to such default, including, without limitation,
costs of collection and reasonable fees, disbursements and other charges of
counsel.
5. Remedies Cumulative. No remedy herein conferred upon the
Holder is intended to be exclusive of any other remedy and each and every such
remedy shall be cumulative and shall be in addition to every other remedy given
hereunder or now or hereafter existing at law or in equity or by statute or
otherwise. To the extent permitted by applicable law, the Company and the Holder
severally waive presentment for payment, demand, protest and notice of dishonor.
6. Holder: Transfer.
6.1 The term "Holder" as used herein shall also include any
Permitted Transferee (as hereinafter defined) of this Note whose name has been
recorded by the Company in the register referred to in Section 6.2 hereof. The
Holder and each Permitted Transferee of this Note acknowledges that this Note
has not been registered under the Securities Act, and may be transferred only
upon receipt by the Company of an opinion of counsel, which opinion shall be
reasonably satisfactory in form and substance to the Company, stating that this
Note may be transferred without registration under the Securities Act in
reliance on an exemption therefrom. As used herein, a "Permitted Transferee" of
a Holder shall mean (A) any person, that directly or
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indirectly controls, is controlled by or is under common control with the
Holder, (B) with respect to a Holder that is a corporation, the stockholders of
such corporation, (C) with respect to a Holder that is a limited partnership,
the general or limited partners of such partnership and (D) with respect to a
Holder that is a limited liability company, the members thereof.
6.2 The Company shall maintain a register in its office for
the purpose of registering the Note and any transfer thereof, which register
shall reflect and identify, at all times, the ownership of any interest in the
Note. Upon the issuance of this Note, the Company shall record the name of the
initial purchaser of this Note in such register as the first Holder. Thereafter,
the Company shall duly record the name of a transferee on such register promptly
after receipt of notice of a transfer and of the opinion referred to in Section
6.2 hereof.
7. Definitions.
As used herein, unless the context otherwise requires, the
following terms have the following respective meanings:
7.1 Business Day: any day other than a Saturday, Sunday or a
day on which national banks are authorized by law to close in the City of San
Francisco, State of California.
7.2 Indebtedness: (a) all indebtedness of the Company for
borrowed money; (b) all obligations relative to the face amount of all letters
of credit, whether or not drawn, and banker's acceptances issued for the account
of the Company; (c) the present value of all obligations issued, undertaken or
assumed to pay the deferred purchase price of property or services (other than
trade payables entered into in the ordinary course of business on ordinary
terms); (d) all contingent liabilities of the Company in respect of any of the
foregoing; (e) all capital stock and warrants or other options therefor which
have mandatory put or redemption provisions which may be exercised prior to the
Maturity Date.
7.3 Investment: the purchase or acquisition of any securities
or indebtedness of, or the making of any loan, advance, transfer of property as
a capital contribution to, or the incurring of any liability, contingently or
otherwise, in respect of the indebtedness of, any person.
7.4 Permitted Investment Securities: (a) readily marketable
securities issued or fully guaranteed by the United States of America; (b)
commercial paper rated "Prime 1" by ▇▇▇▇▇'▇ Investors Service, Inc. or A-1 by
Standard and Poor's with maturities of not more than 180 days; (c) certificates
of deposit or repurchase certificates issued by financial institutions
reasonably acceptable to the Holder, all of the foregoing not having a maturity
of more than one year from the date of issuance thereof, and (d) securities
received in settlement of liabilities created in the ordinary course of
business.
7.5 Subsidiary: any corporation or association (a) more than
50% (by number of votes) owned by the Company or one or more of its
Subsidiaries, or any other business entity in which the Company or one or more
of its Subsidiaries owns more than a 50% interest in either the capital or
profits of such business entity, or (b) whose net earnings or portions thereof
are consolidated with the net earnings of the Company and are recorded in the
books of the
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Company for financial reporting purposes in accordance with generally accepted
accounting principles.
8. Notices. All notices, demands and other communications
provided for or permitted hereunder shall be made in writing and shall be by
telecopier, facsimile, courier service or personal delivery:
(a) if to the Company:
The Pathways Group, Inc.
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇. ▇▇▇▇, ▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
Salans ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
(b) if to the Holder:
▇▇▇▇▇▇ Merchant Partners
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Facsimile:
with a copy to:
▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
O'Melveny & ▇▇▇▇▇ LLP
Embarcadero Center West
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
All such notices and communications shall be deemed to have been duly given:
when delivered by hand, if personally delivered; when delivered by courier, if
delivered by commercial overnight courier service; and when receipt is
acknowledged, if telecopied or sent by facsimile. Either party may change the
address to which notices, demands and other communications hereunder are to be
delivered by giving the other party notice in the manner herein set forth.
9. Amendment: Waivers.
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9.1 No failure or delay on the part of the Company or the
Holder in exercising any right, power or remedy hereunder shall operate as a
waiver thereof, nor shall any single or partial exercise of any such right,
power or remedy preclude any other or further exercise thereof or the exercise
of any other right, power or remedy. The remedies provided for herein are
cumulative and are not exclusive of any remedies that may be available to the
Company or the Holder at law, in equity or otherwise.
9.2 Any amendment, supplement or modification of or to any
provision of this Note, any waiver of any provision of this Note and any consent
to any departure by the Company from the terms of any provision of this Note,
shall be effective (i) only if it is made or given in writing and signed by the
Company and the Holder and (ii) only in the specific instance and for the
specific purpose for which made or given.
10. Payments. If the date on which any such payment is
required to be made pursuant to the provisions of this Note occurs on a
Saturday, Sunday or legal holiday observed in the State of California, such
payments shall be due and payable on the immediately succeeding date which is
not a Saturday, Sunday or legal holiday so observed.
11. Holder Representations. By its acceptance hereof, the
Holder acknowledges that this Note is being registered under the Securities Act
on the ground that the issuance of the Note is exempt from registration under
Section 4(2) of the Securities Act as not involving any public offering and that
the Company's reliance on such exemption is predicated in part on the
representations hereby made to the Company by the Holder that it is acquiring
this Note and the Shares into which this Note may be converted for investment
for its own account, with no present intention of dividing its participation
with others or reselling or otherwise distributing the same, subject,
nevertheless, to any requirement of law that the disposition of its property
shall at all times be within its control.
12. Covenants Bind Successors and Assigns. All the covenants,
stipulations, promises and agreements in this Note contained by or on behalf of
the Company shall bind its successors and assigns, whether so expressed or not.
13. Governing Law. This Note shall be governed by and
construed in accordance with the laws of the State of California without regard
to the principles of conflicts of law of such State.
14. Consent to Jurisdiction. The Company hereby irrevocably
consents to the nonexclusive jurisdiction of the courts of the State of
California and of any federal court located in such State in connection with any
action or proceeding arising out of or relating to this Note.
15. Severability. If any one or more of the provisions
contained herein, or the application thereof in any circumstance, is held
invalid, illegal or unenforceable in any respect for any reason, the validity,
legality and enforceability of any such provisions hereof shall not be in any
way impaired, unless the provisions held invalid, illegal or unenforceable shall
substantially impair the benefits of the remaining provisions hereof.
16. Variation in Pronouns. All pronouns and any variations
thereof refer to the masculine, feminine or neuter, singular or plural, as the
context may require.
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Headings. The headings in this Note are for convenience of reference only and
shall not limit or otherwise affect the meaning hereof.
THE PATHWAYS GROUP, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇, ▇▇
------------------------
Name:▇▇▇▇▇ ▇. ▇▇▇▇, ▇▇
Title: President
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