EXHIBIT 4.2.73
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THIS NOTE AND ANY SHARES ACQUIRED UPON CONVERSION OF THIS NOTE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), AND MAY NOT
BE SOLD, TRANSFERRED, ASSIGNED OR HYPOTHECATED UNLESS THERE IS AN EFFECTIVE
REGISTRATION STATEMENT UNDER SUCH ACT COVERING THIS NOTE, THE SALE IS MADE IN
ACCORDANCE WITH RULE 144 UNDER THE ACT, OR THE COMPANY RECEIVES AN OPINION OF
COUNSEL FOR THE HOLDER OF THIS NOTE REASONABLY SATISFACTORY TO THE COMPANY,
STATING THAT SUCH SALE, TRANSFER, ASSIGNMENT OR HYPOTHECATION IS EXEMPT FROM THE
REGISTRATION AND PROSPECTUS DELIVERY REQUIREMENTS OF SUCH ACT.
SALON MEDIA GROUP, Inc.
CONVERTIBLE PROMISSORY NOTE
$200,000 December 10, 2003
Salon Media Group, Inc., a Delaware corporation (the "Company"), for
value received, hereby promises to pay to Xxxxxx Media LLC ("Holder"), the
principal sum of Two Hundred Thousand Dollars ($200,000) with interest as
provided below.
1. Payment.
(a) Payment. Subject to the provisions of Section 3
hereof relating to the conversion of this Note, principal and accrued interest
hereof shall be payable on the earlier of (i) the date of the next meeting of
the Company's stockholders at which a proposal seeking the approval of the sale
of the Bridge Notes (as defined below) is voted upon and is not approved by the
Company's stockholders, or (ii) December 31, 2003 (the "Maturity Date").
Payments hereunder shall be made by the Company to the Holder, at the address as
provided to the Company by the Holder in writing, in lawful money of the United
States of America. Interest shall accrue with respect to the unpaid principal
amount of the loan from the date of this Note until such principal is paid or
converted as provided in Section 3 hereof at a rate of six percent (6%) per
annum (computed on the basis of a 365-day year).
(b) Prepayment. The Company shall have the right at any
time and without penalty to prepay, in whole or in part, the principal
outstanding and/or the interest accrued hereunder.
2. Certain Definitions.
(a) "Bridge Notes" shall mean the series of notes, of
which this Note is a part, dated on or about the date hereof, each of which are
identical, other than the date of the Note, identity of the Holder and principal
amount of this Note.
(b) "Financing" shall mean the first closing of the
proposed Series C Preferred Stock.
(c) "Financing Securities" shall mean the shares of
equity securities of the Company sold in the Financing.
(d) "Obligations" shall mean all outstanding principal
and accrued interest due hereunder.
3. Conversion.
(a) Automatic Conversion Upon Financing. This Note shall
automatically convert into the Financing Securities upon the closing of the
Financing.
(b) Conversion Absent Financing by December 31, 2003. If
no Financing shall have occurred by the close of business on December 31, 2003,
then this Note shall be convertible at the option of the Holder into shares of
Common Stock. Notwithstanding the foregoing, the Note shall only be convertible
into Common Stock at such time as the Company's stockholders have approved an
amendment to the Company's certificate of incorporation increasing the
authorized shares of Common Stock to a level which would permit the conversion
of all of the Note into Common Stock.
(c) Conversion Price Upon Financing. In the event of an
automatic conversion pursuant to subsection 3(a) hereof, the number of shares of
the Financing Securities to be issued upon conversion of the Obligations shall
equal the aggregate amount of the Obligations divided by the price per share of
the Financing Securities issued and sold in the Financing.
(d) Conversion Price Absent Financing by December 31,
2003. In the event of an automatic conversion pursuant to subsection 3(b)
hereof, the number of shares of the Common Stock to be issued upon conversion of
this Note shall equal the aggregate amount of the Obligations divided by the
average closing price of the Common Stock over the sixty (60) trading days
ending September 30, 2003 or December 31, 2003, whichever is lower, as reported
on such market(s) and/or exchange(s) where the Common Stock has traded during
such sixty day trading period.
(e) Notice Regarding Financing. Written notice shall be
delivered to the Holder of this Note pursuant to Section 7 below notifying the
Holder of the terms and conditions of the Financing, the applicable conversion
price, the date on which any automatic conversion occurred and calling upon such
Holder to surrender the Note to the Company for cancellation and conversion in
the manner and at the place designated.
(f) Mechanics and Effect of Conversion. No fractional
shares of Financing Securities or Common Stock shall be issued upon conversion
of this Note. Notwithstanding any other provision of this Note or the Note and
Warrant Purchase Agreement, upon the conversion of the Obligations under this
Note, in lieu of the Company issuing any fractional shares to the Holder, the
Company shall pay to the Holder in cash the amount of the Obligations that is
not so converted. Upon conversion of this Note pursuant hereto, the Holder shall
surrender this Note,
xxxx endorsed, at the principal office of the Company and shall execute such
documents as are reasonably required to be executed by all purchasers of the
Financing Securities. The Company shall, as soon as practicable thereafter,
issue and deliver to such Holder at such principal office a certificate or
certificates for the number of shares of the Financing Securities or Common
Stock to which the Holder shall be entitled upon such conversion (bearing such
legends as are required by applicable state and federal securities laws in the
opinion of counsel to the Company), together with any other securities and
property to which the Holder is entitled upon such conversion under the terms of
this Note. Upon full conversion of this Note pursuant to the terms hereof, the
Company shall be forever released from all its obligations and liabilities under
this Note. Upon conversion of this Note into Financing Securities or Common
Stock, the Holder shall be entitled to all rights and privileges afforded by the
Company to other holders of such Financing Securities or Common Stock.
4. Events of Default. The occurrence of any of the
following shall constitute an "Event of Default" under this Note and the Note
and Warrant Purchase Agreement of even date herewith (the "Purchase Agreement"):
(a) Failure to Pay. The Company shall fail to pay (i)
when due any principal payment on the due date hereunder or (ii) any interest or
other payment required under the terms of this Note on the date due and such
payment shall not have been made within fifteen (15) days of Company's receipt
of Xxxxxx's written notice to the Company of such failure to pay; or
(b) Voluntary Bankruptcy or Insolvency Proceedings. The
Company shall (i) apply for or consent to the appointment of a receiver,
trustee, liquidate or custodian of itself or of all or a substantial part of its
property, (ii) make a general assignment for the benefit of its or any of its
creditors, (iii) be dissolved or liquidated in full or in part, (iv) commence a
voluntary case or other proceeding seeking liquidation, reorganization or other
relief with respect to itself or its debts under any bankruptcy, insolvency or
other similar law now or hereafter in effect or consent to any such relief or to
the appointment of or taking possession of its property by any official in an
involuntary case or other proceeding commenced against it, or (v) take any
action for the purpose of effecting any of the foregoing; or
(c) Involuntary Bankruptcy or Insolvency Proceedings.
Proceedings for the appointment of a receiver, trustee, liquidator or custodian
of the Company or of all or a substantial part of the property thereof, or an
involuntary case or other proceedings seeking liquidation, reorganization or
other relief with respect to the Company or the debts thereof under any
bankruptcy, insolvency or other similar law or hereafter in effect shall be
commenced and an order for relief entered or such proceeding shall not be
dismissed or discharged within thirty (30) days of commencement.
5. Rights of Holder Upon Default. Subject to the
provisions set forth in Sections 5 and 6 of the Purchase Agreement, upon the
occurrence or existence of any Event of Default (other than an Event of Default
referred to in Paragraphs 4(c) and 4(d)) and at any time thereafter during the
continuance of such Event of Default, Holder may declare all outstanding
Obligations payable by Company hereunder to be immediately due and payable
without presentment, demand, protest or any other notice of any kind, all of
which are hereby expressly waived, anything contained herein or in the Purchase
Agreement to the contrary notwithstanding. Upon
the occurrence or existence of any Event of Default described in Paragraphs 4(c)
and 4(d), immediately and without notice, all outstanding Obligations payable by
Company hereunder shall automatically become immediately due and payable,
without presentment, demand, protest or any other notice of any kind, all of
which are hereby expressly waived, anything contained herein or in the Purchase
Agreement to the contrary notwithstanding. In addition to the foregoing
remedies, upon the occurrence or existence of any Event of Default and subject
to the provisions of Sections 5 and 6 of the Purchase Agreement, Holder may
exercise any other right, power or remedy granted to it by the Purchase
Agreement or otherwise permitted to it by law, either by suit in equity or by
action at law, or both.
6. Security Interest. The satisfaction of the
Obligations hereunder are secured by a security interest in favor of the
Purchasers in all of the Company's right, title and interest in presently
existing and hereafter acquired assets as provided for in Section 4 of the
Purchase Agreement.
7. Miscellaneous.
(a) Amendment Provisions. Any provision of this Note
other than the principal amount and identity of the Holder may be amended,
waived or modified upon the written consent of the Company and the parties
providing at least a majority of the aggregate principal amounts provided
pursuant to the Bridge Notes.
(b) Severability. If any provision of this Note is
determined to be invalid, illegal or unenforceable, in whole or in part, the
validity, legality and enforceability of any of the remaining provisions or
portions of this Note shall not in any way be affected or impaired thereby and
this Note shall nevertheless be binding between the Company and the Holder.
(c) Governing Law. This Note shall be governed by and
construed in accordance with the laws of the State of Delaware.
(d) Binding Effect. This Note shall be binding upon, and
shall inure to the benefit of, the Company and the Holder and their respective
successors and assigns; provided, however, that the Company may not assign its
obligations hereunder without the Holder's prior written consent.
(e) Enforcement Costs. The Company agrees to pay all
costs and expenses, including, without limitation, reasonable attorneys' fees
and expenses, the Holder expends or incurs in connection with the enforcement of
this Note, the collection of any sums due hereunder, any actions for declaratory
relief in any way related to this Note, or the protection or preservation of any
rights of the Holder hereunder.
(f) Notices. Any notice, request or other communication
required or permitted hereunder shall be in writing and shall be duly given upon
receipt if personally delivered or mailed by registered or certified mail,
postage prepaid, or by recognized overnight courier or personal delivery,
addressed (i) if to Holder, at the address or facsimile number of such Holder as
set forth below such party's name on Exhibit A to the Purchase Agreement, or at
such other address or number as such Holder shall have furnished to the Company
in writing, or
(ii) if to Company, at 00 Xxxxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxxxxxxx, XX 00000,
Attention: Chief Financial Officer or at such other address as Company shall
furnish to the Purchaser in writing.
(g) Payment. Payment shall be made in lawful tender of
the United States.
(h) Transfer of Note or Securities Issuable on
Conversion Hereof. This Note or the securities issuable on conversion hereof may
not be transferred in violation of any restrictive legend set forth hereon or
thereon. Each new Note issued upon transfer of this Note, and each security
issuable on conversion hereof, shall bear the restrictive legend set forth
below, unless in the opinion of counsel for Company such legend is not required
in order to ensure compliance with the Act:
"THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND MAY NOT BE SOLD OR
OTHERWISE TRANSFERRED EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION
STATEMENT FILED UNDER SUCH ACT OR PURSUANT TO AN EXEMPTION FROM
REGISTRATION UNDER SUCH ACT."
The Company may issue stop transfer instructions to its transfer agent in
connection with such restrictions. Subject to the foregoing, transfers of this
Note shall be registered upon registration books maintained for such purpose by
or on behalf of the Company as provided in the Purchase Agreement. Prior to
presentation of this Note for registration of transfer, the Company shall treat
the registered holder hereof as the owner and holder of this Note for the
purpose of receiving all payments of principal and interest hereon and for all
other purposes whatsoever, whether or not this Note shall be overdue and Company
shall not be affected by notice to the contrary.
(i) Headings. Section headings used in this Note have
been set forth herein for convenience of reference only. Unless the contrary is
compelled by the context, everything contained in each section hereof applies
equally to this entire Note.
IN WITNESS WHEREOF, the Company has caused this Note to be issued as
of the date first written above.
Salon Media Group, Inc.
By: /s/ Xxxxx Xxxxxx
Name: Xxxxx Xxxxxx
Title: Chairman and Chief Executive Officer
