Exhibit 10(g)
NEITHER THIS NOTE, NOR THE SHARES ISSUABLE UPON CONVERSION
OF THIS NOTE, HAVE BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933 AND MAY NOT BE TRANSFERRED
IN VIOLATION OF SUCH ACT. THE REMEDIES OF THE HOLDER
OF THIS NOTE ARE SUBORDINATED TO SILICON VALLEY BANK
IN ACCORDANCE WITH THE PROVISIONS OF A
SUBORDINATION AGREEMENT DATED JULY 31, 2001
IN FAVOR OF SAID BANK AND ITS SUCCESSORS AND ASSIGNS
NEWCHECK CORPORATION
d/b/a Productivity Solutions, Inc.
8% AMENDED AND RESTATED CONVERTIBLE NOTE
$6,358,869.51 As of February 11, 2000
SECTION 1. General. NEWCHECK CORPORATION d/b/a Productivity
Solutions, Inc., a Delaware corporation (hereinafter referred to
as the "Company"), with offices at 00000 Xxxxxxxx Xxxx Xxxxxxxxx,
Xxxxxxxxxxxx, Xxxxxxx 00000, for value received, hereby promises
to pay to ELECTRONIC RETAILING SYSTEMS INTERNATIONAL, INC., a
Delaware corporation (hereinafter referred to as "ERS"), with
offices at 000 Xxxx Xxxxxx, Xxxxxxx, Xxxxxxxxxxx 00000, or order,
the principal amount of $6,358,869.51 (Six Million Three Hundred
Fifty Eight Thousand Eight Hundred Sixty Nine Dollars and Fifty
One Cents), the entire principal balance of which shall be due and
payable on the fifth anniversary of the date hereof (hereinafter
referred to as the "Maturity Date"), in such coin or currency of
the United States of America as at the time of payment shall be
legal tender therein for the payment of public and private debts
or, at the election of the Company, in the manner hereinafter set
forth; and, to pay interest on the unpaid balance of the principal
amount hereof at the rate of 8% per annum, compounded semi-
annually on each July 1 and January 1 prior to the Maturity Date,
commencing on the date first hereinabove set forth and through and
including July 25, 2001 with respect to $4,550,000 principal
amount hereof and thereafter on the entire unpaid balance of the
principal amount hereof, in like coin or currency or, at the
election of the Company, in the manner hereinafter set forth, on
the Maturity Date; and to pay interest at such rate, in like coin
or currency or, at the election of the Company, in such manner, on
any overdue principal and (to the extent permitted by law) on any
overdue interest, from the due date hereof until the obligation of
the Company with respect to the payment thereof shall be
discharged; all payments of principal of this Note and all
payments of the interest on this Note to be made at 000 Xxxx
Xxxxxx, Xxxxxxx, Xxxxxxxxxxx 00000, or such other location as
shall be specified in writing by the holder of this Note to the
Company.
All payments of principal of this Note and all payments of
interest on this Note may, at the election of the Company, in lieu
of payment in coin or currency of the United States of America as
aforesaid, be made in validly authorized and issued, fully-paid
and non-assessable shares of Senior Preferred Stock (as
hereinafter defined), registered in the name of the payee, free
and clear of any and all liens, charges or other encumbrances of
any nature whatsoever, with an aggregate liquidation preference
equal in amount to the payment to be made.
SECTION 2. Definitions. As used herein, the following terms
shall have the following respective meanings:
The Term "AG Note" shall mean the 8% Amended and Restated
Convertible Note in the original principal amount of $978,399.45
issued as of the date hereof by the Company to AG Checkout LLC.
The term "Certificate of Designation" shall mean the
Certificate of Designation of the Senior Preferred Stock, as filed
with the Secretary of State of Delaware and as may be amended from
time to time.
The term "Company" shall mean NewCheck Corporation d/b/a
Productivity Solutions, Inc., a Delaware corporation, the maker of
this Note, and shall also mean any successor corporation.
The term "Conversion Price" shall mean the applicable price
per share of Senior Preferred Stock set forth in Section 7.6
hereof, or, in case any adjustment of such price has taken place
pursuant to the further provisions of Section 7, then the price as
last adjusted and in effect for purposes of Section 7.
The term "Convertible Securities" shall have the meaning set
forth in Section 6.2 hereof.
The term "ERS" shall have the meaning set forth in Section 1
hereof.
The term "Events of Default" shall have the meaning set
forth in Section 5.1 hereof.
The term "Issuance Date" shall mean the date of this Note.
The term "majority-in-interest", when used with reference to
the principal amount of the Notes, shall mean in excess of 50% of
the aggregate outstanding principal amount of the Notes.
The term "Maturity Date" shall have the meaning set forth in
Section 1 hereof.
The term "Mandatory Conversion" shall have the meaning set
forth in Section 7.3 hereof.
The term "Note" shall mean this Note and any Note executed
and delivered by the Company in exchange or replacement for this
Note pursuant to Section 8 hereof.
The term "Notes" shall mean this Note and the AG Note.
The term "Options" shall have the meaning set forth in
Section 6.2 hereof.
The term "Person" shall mean an individual, a corporation, a
partnership, a trust, an unincorporated organization and a
government or any department, agency or political subdivision
thereof.
The term "Purchase Agreement" shall mean the Stock and
Convertible Note Purchase Agreement dated as of the Issuance Date
among the Company, ERS and the other parties signatory thereto.
The term "Registration Rights Agreement" shall mean the
Amended and Restated Registration Rights Agreement dated the
Issuance Date among the Company, ERS and the other parties
signatory thereto.
The term "Securityholders Agreement" shall mean the Amended
and Restated Securityholders Agreement dated the Issuance Date
among the Company, ERS and the other parties signatories thereto.
The term "Senior Preferred Stock" shall mean the Series C
Convertible Preferred Stock, $.0001 par value, of the Company.
The term "Subsidiary" shall mean: (x) any present or future
corporation at least a majority of the outstanding voting
securities of which shall at the time be owned through
Subsidiaries, by the Company, or which is otherwise controlled by
the Company and (y) any partnership, association, joint venture or
other entity in which the Company, directly or indirectly, or
through Subsidiaries, has a 50% or more equity interest at the
time or which is otherwise controlled by the Company. For purposes
hereof, outstanding voting securities shall be deemed to be all
classes of capital stock or other interests in equity (excluding
debt securities convertible into equity) then outstanding and
normally entitled to vote in the election of directors, managers
or trustees.
SECTION 3. Optional Prepayment.
3.1 Except as agreed to in writing by the holders of a
majority-in-interest of the principal amount of the Notes to any
such payment, the Company shall not prepay all or any portion of
the principal of or any interest on this Note prior to the
Maturity Date.
3.2 Provided the holders of a majority-in-interest of the
principal amount of the Notes shall have evidenced their agreement
to such payment as aforesaid, the Company may prepay the whole, or
any part, of the unpaid principal amount of this Note, without
premium or penalty, upon the terms hereinafter set forth, and
provided that interest on the principal prepayment shall be paid
concurrently therewith. Notices of intended prepayment shall be
given by the Company by mail and shall be mailed to the holder of
this Note not less than 30 days from the date fixed for
prepayment. The giving of such notice by the Company shall not in
any way affect the rights of the holder of this Note under Section
7 hereof. In case this Note is intended to be prepaid in part
only, such notice shall specify the principal amount hereof to be
prepaid; and, in such case, the principal amount of this Note
shall be prepaid in an amount proportionate to the principal
amount of all Notes so prepaid. Upon giving of notice of
prepayment as aforesaid, and subject to agreement thereto by the
holder of this Note, this Note or portion thereof so specified for
prepayment shall on the prepayment date specified in such notice
become due and payable, and from and after the prepayment date so
specified (unless the Company shall default in making such
prepayment) interest on the principal of this Note or portion
hereof so specified for prepayment shall cease to accrue, and the
principal of this Note or portion thereof so specified for
prepayment shall be paid by the Company at the prepayment price
aforesaid.
SECTION 4. Consolidation Merger or Disposition of Assets.
Without limiting any other covenant contained in the Purchase
Agreement, the Company shall not consolidate with, merge into, or
sell or otherwise dispose of all or substantially all its
properties as an entirety to, any person unless:
(a) the successor formed by or resulting from such
consolidation or merger or to which such sale or other disposition
shall have been made shall be a corporation organized under the
laws of the United States of America or any State, district or
territory thereof;
(b) such successor corporation shall expressly assume
the due and punctual payment of the principal of and interest on
this Note according to its tenor, and the due and punctual
performance and observance of all the covenants, agreements and
conditions of this Note to be performed or observed by the Company
to the same extent as if such successor corporation had been the
original maker of this Note (and such assumption shall, upon the
request of the holder of this Note, be evidenced by the endorsing
of an appropriate legend upon this Note, and any Note executed
pursuant to Section 8 hereof after such assumption shall, unless
executed in the name of such corporation, have a similar legend
endorsed thereon);
(c) immediately after such consolidation, merger, sale
or other disposition, such successor corporation shall not be in
default in the performance of any of the covenants, agreements or
conditions contained in this Note and no condition, act or event
(with the giving of notice, passage of time, or otherwise) would
result in such default; and
(d) immediately after such consolidation, merger, sale
or other disposition, such successor corporation shall have a
consolidated stockholders' equity, determined in accordance with
generally accepted accounting principles, which is no less than
the Company's stockholders' equity, as so determined, immediately
prior to such transaction.
SECTION 5. Events of Default and Remedies.
5.1 Unless waived by the holders of a majority-in-interest
of the principal amount of the Notes, the entire unpaid principal
amount of this Note, together with all accrued interest hereon, at
the option of the holder hereof exercised by notice to the
Company, shall forthwith become and be due and payable if any one
or more of the following events (herein called "Events of
Default") shall have occurred (for any reason whatsoever and
whether such happening shall be voluntary or involuntary or come
about or be effected by operation of law or pursuant to or in
compliance with any judgment, decree or order of any court or any
order, rule or regulation of any administrative or governmental
body) and be continuing at the time of such notice, that is to
say:
(a) if default shall be made in the due and punctual
payment of the principal of this Note when and as the same shall
become due and payable, whether at maturity, by acceleration or
otherwise;
(b) if default shall be made in the due and punctual
payment of any interest on this Note when and as such interest
shall become due and payable;
(c) if default shall be made in the performance or
observance of any of the other covenants, agreements or conditions
of the Company or any Subsidiary contained in this Note or in the
Purchase Agreement or any other agreement to which the Company and
the holder of this Note are party, and such default shall have
continued for a period of 30 days after notice thereof to the
Company;
(d) if any representation or warranty made by the
Company under the Purchase Agreement or in any document or
certificate furnished by the Company pursuant thereto shall prove
to be inaccurate in any material respect when made;
(e) if this Note, the Purchase Agreement or any other
agreement to which the Company and the holder of this Note are
party shall cease to be enforceable in accordance with its terms
against the Company, or the Company shall so state in writing;
(f) if the Company or any Subsidiary shall default
beyond any period of grace provided with respect thereto in the
payment of principal of, premium, if any, or interest on any
obligation in respect of borrowed money when due, whether by
acceleration or otherwise; or if the Company or any Subsidiary
shall default beyond any grace period herein provided in the
performance or observance of any other agreement, term or
condition contained in such obligation or in any agreement under
which any such obligation is created, if the effect of any such
default is to cause or permit the holder or holders of such
obligations (or a trustee on behalf of such holder or holders) to
cause such obligation to become due prior to the date of its
stated maturity, unless such holder or holders or trustee shall
have waived such default after its occurrence or unless such
holder or holders or trustee shall have failed to give any notice
required to create an event of default thereunder;
(g) if final judgment for the payment of money in
excess of $100,000 shall be rendered by a court of record against
the Company or any Subsidiary and the Company or such Subsidiary
shall not discharge the same or provide for its discharge in
accordance with its terms, or shall not procure a stay of
execution thereon within 30 days from the date of entry thereof
and, within the period during which execution of such judgment
shall have been stayed, appeal therefrom, and cause the execution
thereof to be stayed during such appeal;
(h) if the Company or any Subsidiary shall:
(i) admit in writing its inability to pay its
debts generally as they become due;
(ii) file a petition in bankruptcy or a petition
to take advantage of any insolvency act;
(iii) make an assignment for the benefit of
creditors;
(iv) consent to the appointment of a receiver of
itself or of the whole or any substantial part of its
property;
(v) on a petition in bankruptcy filed against it,
be adjudicated a bankrupt; or
(vi) file a petition or answer seeking
reorganization or arrangement under the Federal
bankruptcy laws or any other applicable law or statute
of the United States of America or any State, district
or territory thereof;
(i) if a court of competent jurisdiction shall enter,
except at the direct or indirect request of the holder of this
Note, an order, judgment, or decree appointing, without the
consent of the Company or any Subsidiary, a receiver of the
Company or any Subsidiary or of the whole or any substantial part
of its property, or approving a petition filed against it seeking
reorganization or arrangement of the Company or any Subsidiary
under the Federal bankruptcy laws or any other applicable law or
statute of the United States of America or any State, district or
territory thereof, and such order, judgment or decree shall not be
vacated or set aside or stayed within 60 days from the date of
entry thereof; or
(j) if, under the provisions of any other law for the
relief or aid of debtors, any court of competent jurisdiction
shall assume custody or control of the Company or any Subsidiary
or of the whole or any substantial part of its property and such
custody or control shall not be terminated or stayed within 60
days from the date of assumption of such custody or control.
5.2. In the case any one or more of the Events of Default
specified in Section 5.1 hereof shall have occurred and be
continuing, unless waived by the holders of a majority-in-interest
of the principal amount of the Notes, the holder of this Note may
proceed to protect and enforce its rights either by suit in equity
and/or by action at law, whether for the specific performance of
any covenant or agreement contained in this Note, or, unless so
waived, the holder of this Note may proceed to enforce the payment
of all sums due upon this Note or to enforce any other legal or
equitable right of the holder of this Note. In the event an Event
of Default shall have occurred, unless so waived, and the holder
of this Note shall employ attorneys, or incur other costs and
expenses for the collection of payments due or to become due, or
for the enforcement or performance or observance of any obligation
or agreement of the Company under this Note, the Company agrees
that it will pay to the holder, on demand, the reasonable fees of
such attorney together with all other costs and expenses incurred
by the holder.
5.3 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.
5.4 No course of dealing between the Company and the holder
or any delay on the part of the holder hereof in exercising any
rights hereunder shall operate as a waiver of any rights of the
holder hereof.
SECTION 6. Protective Covenants.
6.1 Without the prior written consent of the holders of a
majority-in-interest of the principal amount of the Notes, the
Company shall not: authorize, adopt or approve an amendment to the
Certificate of Incorporation of the Company which would alter or
change in any manner the terms, powers, preferences or special
rights of the Senior Preferred Stock, or grant any waivers of such
preferences or rights, including any such modification or
amendment that may (A) change the redemption date of the Senior
Preferred Stock, (B) raise the conversion price of the Senior
Preferred Stock or reduce the liquidation preference or redemption
price or the dividend rights of the Senior Preferred Stock, (C)
adversely affect any of the conversion features of the Senior
Preferred Stock, or (D) reduce the percentage of outstanding
Senior Preferred Stock necessary to modify or amend the terms
thereof or to grant waivers thereof; or (without limiting any
rights of any party to require the Company to effect a
registration under the Registration Rights Agreement) cause or
permit to occur any Participation Event (as defined in the
Certificate of Designation), if within the control of the Company
and except for any Liquidity Event (as defined in the Certificate
of Designation) in the ordinary course of business.
6.2 Without the prior written consent of a majority-in-
interest of the principal amount of the Notes, the Company shall
not: (A) declare a dividend or effect any other distribution on
the Senior Preferred Stock except as required by the Purchase
Agreement or the Certificate of Designation; (B) subdivide the
outstanding shares of Senior Preferred Stock into a greater
number of shares of Senior Preferred Stock or combine the
outstanding shares of Senior Preferred Stock into a smaller number
of shares of Senior Preferred Stock; or (C) issue or sell any
shares of Senior Preferred Stock for a consideration per share
less than the Conversion Price in effect immediately prior to the
time of such issue or sale, or without consideration. For
purposes of this Section 6.2, the following additional paragraphs
shall apply:
(i) Issuance of Rights or Options. In case at any
time the Company shall in any manner grant (whether directly
or by assumption in a merger or otherwise) any rights to
subscribe for or to purchase, or any options for the purchase
of, Senior Preferred Stock or any stock or securities
convertible into or exchangeable for Senior Preferred Stock
(such rights or options being herein called "Options" and
such convertible or exchangeable stock or securities being
herein called "Convertible Securities") whether or not such
Options or the right to convert or exchange any such
Convertible Securities are immediately exercisable, and the
price per share for which Senior Preferred Stock is issuable
upon the exercise of such Options or upon the conversion or
exchange of such Convertible Securities (determined by
dividing (I) the total amount, if any, received or receivable
by the Company as consideration for the granting of such
Options, plus the aggregate amount of additional
consideration payable to the Company upon the exercise of all
such Options, plus, in the case of such options which relate
to Convertible Securities, the aggregate amount of additional
consideration, if any, payable upon the issue or sale of such
Convertible Securities and upon the conversion or exchange
thereof, by (ii) the total maximum number of shares of Senior
Preferred Stock issuable upon the exercise of such Options or
upon the conversion or exchange of all such Convertible
Securities issuable upon the exercise of such Options) shall
be less than the Conversion Price in effect immediately prior
to the time of the granting of such Options, then the total
maximum number of shares of Senior Preferred Stock issuable
upon the exercise of such Options or upon conversion or
exchange of the total maximum amount of such Convertible
Securities issuable upon the exercise of such Options shall
be deemed to have been issued for such price per share as of
the date of granting of such Options.
(ii) Issuance of Convertible Securities. In case the
Company shall in any manner issue (whether directly or by
assumption in a merger or otherwise) or sell any Convertible
Securities, whether or not the rights to exchange or convert
any such Convertible Securities are immediately exercisable,
and the price per share for which Senior Preferred Stock is
issuable upon such conversion or exchange (determined by
dividing (i) the total amount received or receivable by the
Company as consideration for the issue or sale of such
Convertible Securities, plus the aggregate amount of
additional consideration, if any, payable to the Company upon
the conversion or exchange thereof, by (ii) the total maximum
number of shares of Senior Preferred Stock issuable upon the
conversion or exchange of all such Convertible Securities)
shall be less than the Conversion Price in effect immediately
prior to the time of such issue or sale, then the total
maximum number of shares of Senior Preferred Stock issuable
upon conversion or exchange of all such Convertible
Securities shall be deemed to have been issued for such price
per share on the date of the issue or sale of such
Convertible Securities.
(iii) Consideration for Stock. In case any shares of
Senior Preferred Stock, Options or Convertible Securities
shall be issued or sold for cash, the consideration received
therefor shall be deemed to be the amount received by the
Company therefor, without deduction therefrom of any expenses
incurred or any underwriting commissions or concessions paid
or allowed by the Company in connection therewith. In case
any shares of Senior Preferred Stock, Options or Convertible
Securities shall be issued or sold for a consideration other
than cash, the amount of the consideration other than cash
received by the Company shall be deemed to be the fair value
for such consideration as determined in good faith by the
Board of Directors of the Company, without deduction of any
expenses incurred or any underwriting commissions or
concessions paid or allowed by the Company in connection
therewith. In case any Options shall be issued in connection
with the issue and sale of other securities of the Company,
together comprising one integral transaction in which no
specific consideration is allocated to such Options by the
parties thereto, such Options shall be deemed to have been
issued without consideration.
SECTION 7. Conversion of Note.
7.1 Right to Convert. Subject to and upon compliance with
the provisions hereof, the holder of this Note shall have the
right, at such holder's option, at any time or from time to time
on or after the second anniversary of the Issuance Date, to
convert all or any part of the unpaid principal amount hereof,
plus all interest accrued to the date of such conversion, into
shares of Senior Preferred Stock, at the applicable Conversion
Price.
7.2 Exercise of Conversion Privilege. In order to exercise
the conversion privilege, the holder of this Note shall surrender
it to the Company at the principal executive offices of the
Company at 00000 Xxxxxxxx Xxxx Xxxxxxxxx, Xxxxxxxxxxxx, Xxxxxxx
00000 accompanied by written notice to the Company that the holder
elects to convert this Note, or, if less than the entire unpaid
principal amount hereof is to be converted, the portion hereof to
be converted, and, if requested by the Company, by a duly executed
instrument of transfer. Such notice (and any notice by the holder
of this Note accompanying surrender of this Note in the event of a
Mandatory Conversion) shall also state the name or names (with
address or addresses) in which the certificate or certificates for
shares of Senior Preferred Stock which shall be issuable on such
conversion shall be issued. As soon as practicable after the
receipt of such notice and the surrender of this Note, the
Company shall issue and shall deliver at said offices to the
holder of this Note, or on his written order, a certificate or
certificates for the number of full shares of Senior Preferred
Stock issuable upon the conversion of this Note (or portion
hereof) and provision shall be made for any fraction of a share as
provided in Section 7.5 hereof. Such conversion (other than a
Mandatory Conversion) shall be deemed to have been effected
immediately prior to the close of business on the date on which
such notice shall have been received by the Company and this Note
shall have been surrendered as aforesaid. Conversion shall be at
the Conversion Price in effect at the time of conversion, and at
such time the rights of the holder of this Note as such holder
shall cease and the person or persons in whose name or names any
certificate or certificates for shares of Senior Preferred Stock
shall be issuable upon such conversion shall be deemed to have
become the holder or holders of record of the shares of Senior
Preferred Stock represented thereby. Upon conversion of only a
part of the unpaid principal amount of this Note, the Company
shall execute and deliver to or on the order of the holder thereof
at said offices, at the expense of the Company, a new Note in
principal amount equal to the unconverted portion of such unpaid
principal amount, which new Note shall be dated and bear interest
from the date to which interest shall have been paid on such
unconverted portion.
7.3 Mandatory Conversion. Immediately prior to any event
which, pursuant to the Certificate of Designation, would cause the
mandatory conversion of all outstanding shares of Senior Preferred
Stock into shares of the common stock, $.0001 par value, of the
Company, the entire unpaid principal amount hereof, plus all
interest accrued to the date of such conversion, shall
automatically and without any further act by the holder of this
Note convert into shares of Senior Preferred Stock, at the then
applicable Conversion Price (herein referred to as a "Mandatory
Conversion").
7.4 Right to Interest. Notwithstanding any provision to
the contrary contained in this Note, the holder of this Note shall
have the right, exercisable by written notice delivered to the
Company, to require that any interest payable under this Note be
paid by delivery of shares of Senior Preferred Stock in the manner
set forth under Section 1 hereof.
7.5 Adjustment for Fractional Shares. No fractional shares
of Senior Preferred Stock or scrip shall be issued upon
conversions of this Note. Instead of any fractional shares of
Senior Preferred Stock which would otherwise be issuable upon
conversion of this Note (or portion hereof) the Company shall pay
a cash adjustment in respect of such fractional share of Senior
Preferred Stock in an amount equal to the same fraction of the
then current fair value of a share of Senior Preferred Stock, as
determined in good faith by the Board of Directors of the Company.
7.6 Conversion Price. The Conversion Price per share of
Senior Preferred Stock shall be $7.42.
7.7 Consolidation, Merger, Sale of Assets, Reorganization
or Reclassification. If any consolidation or merger of the
Company with another corporation after the Issuance Date, or the
sale of all or substantially all of its assets to another
corporation shall be effected, or in case of any capital
reorganization or reclassification of the capital stock of the
Company, then, as a condition of such consolidation, merger or
sale, reorganization or reclassification, lawful and adequate
provision shall be made whereby the holder of this Note shall
thereafter have the right to purchase and receive upon the basis
and upon the terms and conditions specified herein and in lieu of
the shares of Senior Preferred Stock immediately theretofore
purchasable and receivable upon the conversion of this Note, such
shares of stock, securities or assets as may be issuable or
payable with respect to or in exchange for a number of outstanding
shares of Senior Preferred Stock of the Company equal to the
number of shares of Senior Preferred Stock immediately theretofore
purchasable and receivable by such holder had such consolidation,
merger, sale, reorganization, or reclassification not taken place,
and in any such case appropriate provision shall be made with
respect to the rights and interest of such holder to the end that
the provisions hereof (including without limitation provisions for
adjustment of the Conversion Price) shall thereafter be
applicable, as nearly as may be, in relation of any shares of
stock, securities or assets thereafter deliverable upon the
exercise of such conversion rights.
7.8 Notice of Certain Actions. Without limiting any
provision of the Purchase Agreement or contained herein, in case
at any time:
(i) the Company shall offer for subscription pro rata
to the holders of its shares of Senior Preferred Stock any
additional shares of stock of any class or other rights;
(ii) there shall be any capital reorganization or
reclassification of the capital stock of the Company, or
consolidation or merger of the Company with, or sale of all
or substantially all its assets to, another corporation; or
(iii) there shall be a voluntary or involuntary
dissolution, liquidation or winding-up of the Company;
then, in any one or more of said cases, the Company shall give
written notice to the holder hereof, of the date on which (A) the
books of the Company shall close or a record shall be taken for
such transaction or (B) such reorganization, reclassification,
consolidation, merger, sale, dissolution, liquidation or
winding-up shall take place, as the case may be. Such notice
shall also specify the date as of which the holders of shares of
Senior Preferred Stock of record shall participate in such
transaction or shall be entitled to exchange their shares of
Senior Preferred Stock for securities or other property
deliverable upon such reorganization, reclassification,
consolidation, merger, sale, dissolution, liquidation, or
winding-up, as the case may be. Such written notice shall be
given at least 30 days prior to the action in question and not
less than 30 days prior to the record date or the date on which
the Company's transfer books are closed in respect thereto.
7.9 Reservation of Shares. The Company shall at all times
reserve and keep available out of its authorized shares of Senior
Preferred Stock, solely for the purpose of issue upon the
conversion of this Note as herein provided, such number of shares
of Senior Preferred Stock as shall then be issuable upon the
conversion of this Note.
7.10 Taxes. The issuance of certificates of shares of
Senior Preferred Stock upon the conversions of this Note shall be
made without charge to the holder of this Note for any issuance
tax in respect thereto; provided, however, that the Company shall
not be required to pay any tax which may be payable in respect of
any transfer involved in the issuance and delivery of any
certificate in a name other than that of the holder of this Note.
7.11 Closing of Books. The Company will at no time close
its transfer books against the transfer of any shares of Senior
Preferred Stock issued or issuable upon the conversion of this
Note in any manner which interferes with the timely conversion of
this Note.
SECTION 8. Exchange or Replacement of Note.
8.1 The holder of this Note, at its option, may in person or
by duly authorized attorney surrender this Note for exchange, at
the principal executive offices of the Company, and at the expense
of the Company receive in exchange therefor a new Note in the same
aggregate principal amount as the aggregate unpaid principal
amount of the Note so surrendered, bearing interest at the same
annual rate as the Note so surrendered and otherwise in
substantially the form of the Note so surrendered, each such new
Note to be dated as of the date to which interest has been paid on
the note so surrendered and to be in such principal amount and
payable to the holder of this Note. Five days' prior written
notice to the holder's intention to make such exchange shall be
given to the Company.
8.2 Upon receipt by the Company of evidence satisfactory to
it of the loss, theft, destruction or mutilation of this Note, and
(in case of loss, theft or destruction) of indemnity reasonably
satisfactory to it, and upon surrender and cancellation of this
Note, if mutilated, the Company, upon reimbursement to it of all
reasonable expenses incidental thereto, will make and deliver a
new Note, of like tenor, in lieu of this Note. Any Note made and
delivered in accordance with the provisions of this Section 8
shall be dated as of the date to which interest has been paid on
this Note.
SECTION 9. Notices. All notices, requests or instructions
hereunder shall be in writing and delivered personally or sent by
registered or certified mail, postage prepaid or by overnight
express mail by a nationally recognized overnight mail carrier as
follows:
(1) if to the Company:
00000 Xxxxxxxx Xxxx Xxxxxxxxx
Xxxxxxxxxxxx, Xxxxxxx 00000
Attention: Chief Executive Officer
Telecopy Number: (000) 000-0000
(2) if to the holder of this Note:
000 Xxxx Xxxxxx
Xxxxxxx, Xxxxxxxxxxx 00000
Attention: Xxxxxxx Xxxxxx
Telecopy Number: (000) 000-0000
with a copy to:
Xxxxxx Xxxxxx, Esq.
Krugman & Kailes LLP
Park 00 Xxxx - Xxxxx Xxx
Xxxxxx Xxxxx, Xxx Xxxxxx 00000
Telecopy Number: (000) 000-0000
Any notice so addressed and mailed, shall be deemed to be given
when so mailed. Any notice so addressed and otherwise delivered
shall be deemed to be given when actually received by the
addressee. Any of the above addresses may be changed at any time
by notice given as provided above; provided, however, that any
such notice of change of address shall be effective only upon
receipt.
SECTION 10. Captions. Captions and section titles
contained herein are inserted as a matter of convenience and for
reference only and are not intended to define, limit, extend or
describe the scope of this Note or the intent of any provision
hereof.
SECTION 11. Severability. In the event that one or more
of the provisions of this Note shall for any reason be held to be
invalid, illegal or unenforceable in any respect, such invalidity,
illegality or unenforceability shall not affect any other
provisions of this Note, but this Note shall be construed as if
such invalid, illegal or unenforceable provision had never been
contained herein.
SECTION 12. Holders. The Company may deem and treat the
holder of this Note as the absolute owner of this Note for the
purpose of receiving payment hereon or on account hereof and for
all other purposes, and the Company shall not be affected by any
notice to the contrary.
SECTION 13. Governing Law. This Note shall be governed by
and construed in accordance with the laws of the State of New York
applicable to agreements made and to be performed entirely within
such state.
SECTION 14. Related Agreements. This Note is issued
pursuant to the Purchase Agreement and is entitled to the benefits
thereof and subject to the obligations thereunder, and to those
set forth in the Registration Rights Agreement and the
Securityholders Agreement. Copies of such agreements may be
obtained by any holder of this Note at the principal executive
offices of the Company.
IN WITNESS WHEREOF, the undersigned has executed this Note as
of the date first-above written.
ATTEST: NEWCHECK CORPORATION
d/b/a Productivity Solutions, Inc.
s/ Xxxxxx Xxxxxx By s/ Xxxxxxx Xxxxxx
------------------ ----------------------------
Assistant Secretary President
14
corp\ers\notes\psi amend restated senior convertible Exhibit 10g
