Contract
Exhibit
10.17
NEITHER
THIS SECURITY NOR THE SECURITIES FOR WHICH THIS SECURITY IS EXCHANGEABLE HAVE
BEEN REGISTERED WITH THE SECURITIES AND EXCHANGE COMMISSION OR THE SECURITIES
COMMISSION OF ANY STATE IN RELIANCE UPON AN EXEMPTION FROM REGISTRATION UNDER
THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), AND, ACCORDINGLY,
MAY NOT BE OFFERED OR SOLD EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION
STATEMENT UNDER THE SECURITIES ACT OR PURSUANT TO AN AVAILABLE EXEMPTION FROM,
OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT AND IN ACCORDANCE WITH APPLICABLE STATE SECURITIES LAWS AS
EVIDENCED BY A LEGAL OPINION OF COUNSEL TO THE TRANSFEROR TO SUCH EFFECT, THE
SUBSTANCE OF WHICH SHALL BE REASONABLY ACCEPTABLE TO THE COMPANY. THIS SECURITY
AND THE SECURITIES ISSUABLE UPON CONVERSION OF THIS SECURITY MAY BE PLEDGED IN
CONNECTION WITH A BONA FIDE MARGIN ACCOUNT OR OTHER LOAN SECURED BY SUCH
SECURITIES.
FORM
OF 10% SECURED PROMISSORY NOTE
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$___________
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____________,
2010
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FOR VALUE
RECEIVED, rVUE, Inc., a Delaware corporation (the “Maker”), with its primary
offices located at 000 X.X. 3rd Avenue, Third Floor Fort Lauderdale, FL 33316,
promises to pay to the order of ____________________, (the “Payee”) or his or
its registered assigns (with the Payee, the “Holder”), upon the terms set forth
below, the principal sum of ____________ Dollars ($________) plus interest on
the unpaid principal sum outstanding at the rate of 10% per annum (this “Note”). Defined terms
not otherwise defined herein shall have the meanings ascribed to such terms in
that certain note purchase agreement of even date herewith among the Maker, the
Holder and certain other holders of Notes substantially identical to this Note
(the “Purchase
Agreement”).
1. Payments.
(a) Unless
an Event of Default shall have previously occurred and be continuing or this
Note shall be exchanged by the Holder for securities in connection with the
Subsequent Financing (as defined in the Purchase Agreement) pursuant to Section
3, the full amount of principal and accrued interest under this Note shall be
due and payable on a date (the “Maturity Date”) that
shall be the earlier to occur of: (i) September 2, 2010 or (ii) the date the
Maker (or any successor in interest of the Maker) consummates the Subsequent
Financing in an amount that Maker realizes at least $1.0 million of
gross proceeds therefrom.
(b) The
Maker shall pay interest to the Holder on the aggregate and then outstanding
principal amount of this Note at the rate of 10% per annum, payable in arrears
on the earlier of (i) the Maturity Date or (ii) acceleration of this Note
following an Event of Default pursuant to Section 3(b). Interest on this Note
shall commence to accrue as of the date of acceptance by the Company of the
Purchase Agreement as executed and delivered by the Holder (the “Original Issue
Date”).
(c) Interest
shall be calculated on the basis of a 360-day year, consisting of twelve 30
calendar day periods, and shall accrue monthly commencing on the Original Issue
Date until payment in full of the outstanding principal, together with all
accrued and unpaid interest, and other amounts which may become due hereunder,
has been made. Interest hereunder will be paid to the Person in whose name this
Note is registered on the records of the Maker regarding registration and
transfers of this Note.
(d) All
overdue accrued and unpaid principal and interest to be paid hereunder shall
entail a late fee at the rate of 16% per annum (or such lower maximum amount of
interest permitted to be charged under applicable law) which will accrue daily,
from the date such principal and/or interest is due hereunder through and
including the date of payment. Except as otherwise set forth in this Note, the
Maker may not prepay any portion of the principal amount of this Note without
the 10 Business Day advance written notice to the Holder.
2. Secured Obligation.
The obligations of the Maker under this Note are secured by certain assets of
the Maker pursuant to that certain Security Agreement, dated as of the date
hereof, by and among the Maker and the secured parties signatory
thereto.
3. Events of
Default.
(a) “Event of Default”,
wherever used herein, means any one of the following events (whatever the reason
and whether it shall be voluntary or involuntary or effected by operation of law
or pursuant to any judgment, decree or order of any court, or any order, rule or
regulation of any administrative or governmental body):
(i) any
default in the payment of the principal of, or the interest on, this Note, as
and when the same shall become due and payable;
(ii) Maker
shall fail to observe or perform any obligation or shall breach any term or
provision of this Note and such failure or breach shall not have been remedied
within ten (10) Business Days after the date on which notice of such failure or
breach shall have been delivered (other than those occurences described in other
provisions of this Section 3 for which a different grace or cure period is
specified, or for which no cure period is specified and which constitute
immediate Events of Default);
(iii) Maker
shall fail to observe or perform any of its material obligations owed to the
Holder or any other material covenant, agreement, representation or warranty
contained in, or otherwise commit any material breach hereunder or in any other
agreement executed in connection herewith;
(iv) Maker
shall commence, or there shall be commenced against the Maker a case under any
applicable bankruptcy or insolvency laws as now or hereafter in effect or any
successor thereto, or the Maker commences any other proceeding under any
reorganization, arrangement, adjustment of debt, relief of debtors, dissolution,
insolvency or liquidation or similar law of any jurisdiction whether now or
hereafter in effect relating to the Maker, or there is commenced against the
Maker any such bankruptcy, insolvency or other proceeding which remains
undismissed for a period of sixty (60) days; or the Maker is adjudicated
insolvent or bankrupt; or any order of relief or other order approving any such
case or proceeding is entered; or the Maker suffers any appointment of any
custodian or the like for it or any substantial part of its property which
continues undischarged or unstayed for a period of 60 days; or the Maker makes a
general assignment for the benefit of creditors; or the Maker shall fail to pay,
or shall state that it is unable to pay, or shall be unable to pay, its debts
generally as they become due; or the Maker shall call a meeting of its creditors
with a view to arranging a composition, adjustment or restructuring of its
debts; or the Maker shall by any act or failure to act expressly indicate its
consent to, approval of or acquiescence in any of the foregoing; or any
corporate or other action is taken by the Maker for the purpose of effecting any
of the foregoing;
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(v) Maker
shall default in any of its respective obligations under any other Note or any
mortgage, credit agreement or other facility, indenture agreement, factoring
agreement or other instrument under which there may be issued, or by which there
may be secured or evidenced any indebtedness for borrowed money or money due
under any long term leasing or factoring arrangement of the Maker, whether such
indebtedness now exists or shall hereafter be created and such default shall
result in indebtedness aggregating more than $10,000 becoming or being declared
due and payable prior to the date on which it would otherwise become due and
payable; or
(vi) except
in connection with the Subsequent Financing or the Reverse Merger Transaction,
the Maker shall (a) be a party to any Change of Control Transaction (as defined
below), (b) agree to sell or dispose all or in excess of 50% of its assets in
one or more transactions (whether or not such sale would constitute a Change of
Control Transaction), (c) redeem or repurchase more than a de minimis number of
shares of Common Stock or other equity securities of the Maker, or (d) make any
distribution or declare or pay any dividends (in cash or other property, other
than common stock) on, or purchase, acquire, redeem, or retire any of the
Maker’s capital stock, of any class, whether now or hereafter outstanding.
“Change of Control
Transaction” means the occurrence of any of: (i) an acquisition after the
date hereof by an individual or legal entity or “group” (as described in Rule
13d-5(b)(1) promulgated under the Securities Exchange Act of 1934, as amended)
of effective control (whether through legal or beneficial ownership of capital
stock of the Maker, by contract or otherwise) of in excess of 51% of the voting
securities of the Maker, (ii) a replacement at one time or over time of more
than one-half of the members of the Maker’s board of directors which is not
approved by a majority of those individuals who are members of the board of
directors on the date hereof (or by those individuals who are serving as members
of the board of directors on any date whose nomination to the board of directors
was approved by a majority of the members of the board of directors who are
members on the date hereof), (iii) the merger of the Maker with or into another
entity that is not wholly owned by the Maker, consolidation or sale of 33% or
more of the assets of the Maker in one or a series of related
transactions, or (iv) the execution by the Maker of an agreement to which the
Maker is a party or by which it is bound, providing for any of the events set
forth above in (i), (ii) or (iii).
(b) If
any Event of Default occurs and shall be continuing, the full principal amount
of this Note, together with all accrued interest thereon, shall become, at the
Holder’s election, immediately due and payable in cash.
(c) The
Holder need not provide and the Maker hereby waives any presentment, demand,
protest or other notice of any kind, and the Holder may immediately and without
expiration of any grace period enforce any and all of its rights and remedies
hereunder and all other remedies available to it under applicable law. Such
declaration may be rescinded and annulled by the Holder at any time prior to
payment hereunder. No such rescission or annulment shall affect any subsequent
Event of Default or impair any right consequent thereon.
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4. Exchange of Note. The
Holder of this Note may, at his or its sole option, elect by written notice to
the Company given at any time on or before the Maturity Date, to exchange any or
all of the face amount of the Notes, plus any accrued and unpaid interest
thereon, into the applicable dollar amount of any other securities issued by the
Company in connection with the Subsequent Financing. Upon such exchange, this
Note will be immediately cancelled upon delivery of the securities.
5. Reverse Merger Transaction
Exchange. The Holder of this Note may, at his or its sole
option, elect by written notice to the Company and in accordance with the
Purchase Agreement, exchange any or all of the face amount of the Notes, plus
any accrued and unpaid interest thereon, into the applicable dollar amount of
any other securities issued by the Company in connection with a Reverse Merger
Transaction. Upon such exchange, this Note will be immediately cancelled upon
delivery of the securities.
6. Negative Covenants.
So long as any portion of this Note is outstanding, the Maker will not directly
or indirectly:
(a) other
than Permitted Indebtedness, enter into, create, incur, assume, guarantee or
suffer to exist any indebtedness for borrowed money of any kind, including but
not limited to, a guarantee, on or with respect to any of its property or assets
now owned or hereafter acquired or any interest therein or any income or profits
therefrom;
(b) other
than Permitted Liens, enter into, create, incur, assume or suffer to exist any
liens of any kind, on or with respect to any of its property or assets now owned
or hereafter acquired or any interest therein or any income or profits
therefrom;
(c) amend
its certificate of incorporation, bylaws or other charter documents so as to
adversely affect any rights of the Holder;
(d) repay,
repurchase or offer to repay, repurchase or otherwise acquire more than a de
minimis number of securities other then the Notes subject to the prepayment
provisions herein;
(e) except
in connection with the Subsequent Financing or the Reverse Merger Transaction,
enter into any agreement with respect to any of the foregoing; or
(f)
pay cash dividends or distributions on any equity
securities of the Maker.
“Permitted
Indebtedness” shall mean either (a) the indebtedness of the Maker
existing on the date of issuance of this Note and set forth on Schedule I of the
Purchase Agreement, and (b) any indebtedness incurred by the Maker or any
successor-in-interest to the Maker in connection with a Subsequent Financing,
(c) any indebtedness the proceeds of which are used to repay the Notes in full
after giving of appropriate notice as set forth in Section 1(e) above and (d)
any indebtedness incurred in the ordinary course of business or consented to by
holders a majority of the outstanding principal and interest on the Notes, which
consent shall be binding upon the Holder.
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“Permitted Lien” shall
mean the individual and collective reference to the following: (a) liens for
taxes, assessments and other governmental charges or levies not yet due or liens
for taxes, assessments and other governmental charges or levies being contested
in good faith and by appropriate proceedings for which adequate reserves (in the
good faith judgment of the management of the Maker) have been established in
accordance with generally accepted accounting procedures, (b) liens imposed by
law which were incurred in the ordinary course of business, such as carriers’,
warehousemen’s and mechanics’ liens, statutory landlords’ liens, and other
similar liens arising in the ordinary course of business, and (x) which do not
individually or in the aggregate materially detract from the value of such
property or assets or materially impair the use thereof in the operation of the
business of the Maker or (y) which are being contested in good faith by
appropriate proceedings, which proceedings have the effect of preventing the
forfeiture or sale of the property or asset subject to such lien, (c) purchase
money security interests, and (d) liens set forth on Schedule 6.1 of the
Security Agreement .
7. No Waiver of the Holder’s
Rights. All payments of principal and interest shall be made without
setoff, deduction or counterclaim. No delay or failure on the part of the Holder
in exercising any of its options, powers or rights, nor any partial or single
exercise of its options, powers or rights shall constitute a waiver thereof or
of any other option, power or right, and no waiver on the part of the Holder of
any of its options, powers or rights shall constitute a waiver of any other
option, power or right. Maker hereby waives presentment of payment,
protest, and all notices or demands in connection with the delivery, acceptance,
performance, default or endorsement of this Note. Acceptance by the Holder of
less than the full amount due and payable hereunder shall in no way limit the
right of the Holder to require full payment of all sums due and payable
hereunder in accordance with the terms hereof.
8. Modifications. No
term or provision contained herein may be modified, amended or waived except by
written agreement or consent signed by the party to be bound
thereby.
9. Cumulative Rights and
Remedies; Usury. The rights and remedies of the Holder expressed herein
are cumulative and not exclusive of any rights and remedies otherwise available
under this Note, or applicable law (including at equity). The election of the
Holder to avail itself of any one or more remedies shall not be a bar to any
other available remedies, which the Maker agrees the Holder may take from time
to time. If it shall be found that any interest due hereunder shall violate
applicable laws governing usury, the applicable rate of interest due hereunder
shall be reduced to the maximum permitted rate of interest under such
law.
10. Use of Proceeds.
Maker shall use the proceeds from this Note hereunder for working capital
purposes or as otherwise contemplated by the Purchase Agreement and not for the
satisfaction of any portion of the Maker’s debt (other than payment of trade
payables in the ordinary course of the Maker’s business and prior practices), to
redeem any of the Maker’s equity or equity-equivalent securities or to settle
any outstanding litigation.
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11. Severability. If any
provision of this Note is declared by a court of competent jurisdiction to be in
any way invalid, illegal or unenforceable, the balance of this Note shall remain
in effect, and if any provision is inapplicable to any person or circumstance,
it shall nevertheless remain applicable to all other persons and circumstances.
If it shall be found that any interest or other amount deemed interest due
hereunder shall violate applicable laws governing usury, the applicable rate of
interest due hereunder shall automatically be lowered to equal the maximum
permitted rate of interest.
12. Successors and
Assigns. This Note shall be binding upon the Maker and its successors and
shall inure to the benefit of the Holder and its successors and assigns. The
term “Holder”
as used herein, shall also include any endorsee, assignee or other holder of
this Note.
13. Lost or Stolen Promissory
Note. If this Note is lost, stolen, mutilated or otherwise destroyed, the
Maker shall execute and deliver to the Holder a new promissory note containing
the same terms, and in the same form, as this Note. In such event, the Maker may
require the Holder to deliver to the Maker an affidavit of lost instrument and
customary indemnity in respect thereof as a condition to the delivery of any
such new promissory note.
14. Governing Law. All
questions concerning the construction, validity, enforcement and interpretation
of this Note shall be governed by and construed and enforced in accordance with
the internal laws of the State of New York, without regard to the principles of
conflicts of law thereof. Each of the Maker and the Holder agree that all legal
proceedings concerning the interpretations, enforcement and defense of this Note
shall be commenced in the state and federal courts sitting in the City of New
York, County of New York (the “New York Courts”).
Each of the Maker and the Holder hereby irrevocably submit to the exclusive
jurisdiction of the New York Courts for the adjudication of any dispute
hereunder (including with respect to the enforcement of this Note), and hereby
irrevocably waives, and agrees not to assert in any suit, action or proceeding,
any claim that it is not personally subject to the jurisdiction of any such
court, that such suit, action or proceeding is improper. Each of the Maker and
the Holder hereby irrevocably waive personal service of process and consents to
process being served in any such suit, action or proceeding by mailing a copy
thereof via registered or certified mail or overnight delivery (with evidence of
delivery) to the other at the address in effect for notices to it under this
Note and agrees that such service shall constitute good and sufficient service
of process and notice thereof. Nothing contained herein shall be deemed to limit
in any way any right to serve process in any manner permitted by law. Each of
the Maker and the Holder hereby irrevocably waive, to the fullest extent
permitted by applicable law, any and all right to trial by jury in any legal
proceeding arising out of or relating to this Note or the transactions
contemplated hereby.
15. Notice. Whenever
notice is required to be given under this Note, unless otherwise provided
herein, such notice shall be given in accordance with Section 10(b) of the
Purchase Agreement.
16. Required Notice to the
Holder. The Holder is to be notified by the Maker, within five (5),
Business Days, in accordance with Section 15, of the existence or occurrence, of
any Event of Default.
[Signature
page follows]
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The
undersigned has executed this Note as a maker and not as a surety or guarantor
or in any other capacity.
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RVUE,
INC.
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By:
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Xxxxx
Xxxxx
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Chief
Executive Officer
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