Exhibit 4.3
PROMISSORY NOTE MODIFICATION AGREEMENT
--------------------------------------
THIS INSTRUMENT, entered into as of this 9th day of May 2002, by and
between VillageEDOCS. ("Borrower") and ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ and C. ▇▇▇▇ ▇▇▇▇▇▇▇▇
(together, the "Lender").
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, the Lender is the holder of that certain promissory notes
(the "Notes") from Borrower, a schedule of which is attached as Exhibit A, which
Notes represents working capital advances made for the benefit of Borrower by
Lender; and
WHEREAS, said Notes provide that at the option of Lender such Notes
are convertible into equity securities of the Borrower; and
WHEREAS, the original due date of said Notes are listed on Exhibit A;
and
WHEREAS, as an inducement for Lender to extend the due date of the
Notes, and to provide additional financing to Borrower, the parties have agreed
that the Borrower shall grant the Lender a perfected security interest in all
assets of the Borrower as security for the obligations under the Notes.
NOW, THEREFORE, in consideration of One Dollar ($1.00) paid by
Borrower and other good and valuable consideration, receipt of which is
acknowledged by Lender, the parties agree as follows:
1. Recitals. The above recitals are true and correct and are
--------
incorporated herein by reference.
2. Additional Security. In consideration of the Lender's extending
-------------------
credit and other financing accommodations to Borrower, the Borrower hereby
agrees that the Notes are secured by a certain Security Agreement entered into
between Borrower and Lender as of May 9, 2002, which Security Agreement grants
to Lender a security interest in all of the Borrower's assets.
3. Piggyback Registration Right. In further consideration of the
----------------------------
Lender's extending credit and other financing accommodations to Borrower, the
Borrower hereby agrees that with respect to all previously unregistered shares
of common stock held by the Borrower, whether issued for cash or for conversion
of the Notes ("Registrable Securities), if the Borrower shall determine to
register any of its shares of Common Stock for its own account, other than a
registration relating solely to employee benefit plans, or a registration
relating solely to a Rule 145 transaction, or a registration on any registration
form that does not permit secondary sales, the Borrower will:
(a) promptly give to Lender written notice thereof; and
(b) use its best efforts to include in such registration (and
any related qualification under the blue sky laws or other
compliance), and in any underwriting involved therein, all the
Registrable Securities specified in a written request or requests,
made by Lender within Twenty (20) days after the written notice from
the Borrower is given. Such written request may specify all or a part
of Lender's Registrable Securities,
15
and shall specify that the Lender's Registrable Securities are
intended to be sold in a public distribution.
If the registration of which the Borrower gives notice is for a registered
public offering involving an underwriting, the Borrower shall so advise the
Lender as a part of the written notice. In such event, the right of the Lender
to registration pursuant to this agreement shall be conditioned upon Lender's
participation in such underwriting and the inclusion of the Lender's Registrable
Securities in the underwriting to the extent provided herein. The Lender shall
(together with the Borrower) enter into an underwriting agreement in customary
form with the representative of the underwriter or underwriters selected by the
Borrower.
Notwithstanding any other provisions of this agreement, if the representative of
the underwriters advises the Borrower in writing that marketing factors require
a limitation on the number of shares to be underwritten, the representative may
(subject to the limitations set forth below) exclude all Registrable Securities
from, or limit the number of Registrable Securities to be included in, the
registration and underwriting. The Borrower shall so advise the Lender, and the
number of shares of securities that are entitled to be included in the
registration and underwriting shall be allocated first to the Borrower for
securities being sold for its own account and thereafter to the Lender, pro rata
with any other holders of Common Stock having registration rights. If the Lender
does not agree to the terms of any such underwriting, he shall be excluded
therefrom by written notice from the Borrower or the underwriter. Any
Registrable Securities or other securities excluded or withdrawn from such
underwriting shall be withdrawn from such registration.
If shares are so withdrawn from the registration or if the number of shares of
Registrable Securities to be included in such registration was previously
reduced as a result of marketing factors, the Borrower shall then offer to all
persons who have retained the right to include securities in the registration
the right to include additional securities in the registration in an aggregate
amount equal to the number of shares so withdrawn, with such shares to be
allocated among the persons requesting additional inclusion pro rata amongst
those persons requesting inclusion.
All Registration Expenses incurred in connection with any registration,
qualification or compliance pursuant to Section 2 hereof shall be borne by the
Borrower. In the case of each registration effected by the Borrower pursuant to
this agreement, the Borrower will keep Lender advised in writing as to the
initiation of each registration and as to the completion thereof, at its
expense, the Borrower will use its best efforts to:
(a) Keep such registration effective for a period of one
hundred twenty (120) days or until the Lender has completed the
distribution described in the registration statement relating
thereto, whichever first occurs; provided, however, that (i) such
120-days period shall be extended for a period of time equal to the
period the Lender refrains from selling any securities included in
such registration at the request of an underwriter of Common Stock
(or other securities) of the Borrower; and (ii) in the case of any
registration of Registrable Securities on Form S-3 which are intended
to be offered on a continuous or delayed basis, such 120-day period
shall be extended, if necessary, to keep the registration statement
effective until all such Registrable Securities are sold, provided
that Rule 145, or any successor rule under the Securities Act,
permits an offering on a
16
continuous or delayed basis, and provided further that applicable
rules under the Securities Act governing the obligation to file a
post-effective amendment permit, in lieu of filing a post-effective
amendment that (I) includes any prospectus required by Section
10(a)(3) of the Securities Act or (II) reflects facts or events
representing a material or fundamental change in the information set
forth in the registration statement, the incorporation by reference
of information required to be included in (I) and (II) above to be
contained in periodic reports filed pursuant to Section 13 or 15(d)
of the Exchange Act in the registration statement.
(b) Prepare and file with the Securities and Exchange
Commission such amendments and supplements to such registration
statement and the prospectus used in connection with such
registration statement as may be necessary to comply with the
provisions of the Securities Act with respect to the disposition of
all securities covered by such registration statement;
(c) Furnish such number of prospectuses and other documents
incident thereto, including any amendment of or supplement to the
prospectus, as the Lender from time to time may reasonably request;
(d) Notify the Lender at any time when a prospectus relating
thereto is required to be delivered under the Securities Act of the
happening of any event as a result of which the prospectus included
in such registration statement, as then in effect, includes an untrue
statement of a material fact or omits to state a material fact
required to be stated therein or necessary to make the statements
therein not misleading or incomplete in the light of the
circumstances then existing, and at the request of Lender, prepare
and furnish to the Lender a reasonable number of copies of a
supplement to or an amendment of such prospectus as may be necessary
so that, as thereafter delivered to the purchasers of such shares,
such prospectus shall not include an untrue statement of a material
fact or omit to state a material fact required to be stated therein
or necessary to make the statements therein not misleading or
incomplete in the light of the circumstances then existing; and
(e) Otherwise use its best efforts to comply with all
applicable rules and regulations of the Commission, and make
available to its security holders, as soon as reasonably practicable,
an earnings statement covering the period of at least twelve months,
but not more than eighteen months, beginning with the first month
after the effective date of the Registration Statement, which
earnings statement shall satisfy the provisions of Section 11(a) of
the Securities Act.
The Borrower will indemnify Lender with respect to which registration,
qualification, or compliance has been effected pursuant to this agreement
against all expenses, claims, losses, damages, and liabilities (or actions,
proceedings, or settlements in respect thereof) arising out of or based on any
untrue statement (or alleged untrue statement) of a material fact contained in
any prospectus, offering circular, or other document (including any related
registration statement, notification, or the like) incident to any such
registration, qualification, or compliance, or based on any omission (or alleged
omission) to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, or any violation by the
Borrower of the Securities Act or any rule or regulation thereunder applicable
to the Borrower and relating to action or inaction required of the Borrower in
connection with any such registration,
17
qualification, or compliance, and will reimburse the Lender for any legal and
any other expenses reasonably incurred in connection with investigating and
defending or settling any such claim, loss, damage, liability, or action,
provided that the Borrower will not be liable in any such case to the extent
that any such claim, loss, damage, liability, or expense arises out of or is
based on any untrue statement or omission based upon written information
furnished to the Borrower by the Lender and stated to be specifically for use
therein. It is agreed that the indemnity provision contained in this agreement
shall not apply to amounts paid in settlement of any such loss, claim, damage,
liability, or action if such settlement is effected without the consent of the
Borrower (which consent has not been unreasonably withheld).
The Lender will, if Registrable Securities held by him are included in the
securities as to which such registration, qualification, or compliance is being
effected, indemnify the Borrower, each of its directors, officers, partners,
legal counsel, and accountants and each underwriter, if any, of the Borrower's
securities covered by such a registration statement, each person who controls
the Borrower or such underwriter within the meaning of Section 15 of the
Securities Act, against all claims, losses, damages and liabilities (or actions
in respect thereof) arising out of or based on any untrue statement (or alleged
untrue statement) of a material fact contained in any such registration
statement, prospectus, offering circular, or other document, or any omission (or
alleged omission) to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading, and will reimburse
the Borrower and its directors, officers, partners, legal counsel, and
accountants, persons, underwriters, or control persons for any legal or any
other expenses reasonably incurred in connection with investigating or defending
any such claim, loss, damage, liability, or action, in each case to the extent,
but only to the extent, that such untrue statement (or alleged untrue statement)
or omission (or alleged omission) is made in such registration statement,
prospectus, offering circular, or other document in reliance upon and in
conformity with written information furnished to the Borrower by the Lender and
stated to be specifically for use therein; provided, however, that the
obligations of the Lender hereunder shall not apply to amounts paid in
settlement of any such claims, losses, damages, or liabilities (or actions in
respect thereof) if such settlement is effected without the consent of the
Lender (which consent shall not be unreasonably withheld).
Each party entitled to indemnification under this agreement (the "Indemnified
Party") shall give notice to the party required to provide indemnification (the
"Indemnifying Party") promptly after such Indemnified Party has actual knowledge
of any claim as to which indemnity may be sought, and shall permit the
Indemnifying Party to assume the defense of such claim or any litigation
resulting therefrom, provided that counsel for the Indemnifying Party, who shall
conduct the defense of such claim or any litigation resulting therefrom, shall
be approved by the Indemnified Party (whose approval shall not unreasonably be
withheld), and the Indemnified Party may participate in such defense at such
party's expense, and provided further that the failure of any Indemnified Party
to give notice as provided herein shall not relieve the Indemnifying Party of
its obligations under this Section 5, to the extent such failure is not
prejudicial. No Indemnifying Party, in the defense of any such claim or
litigation, shall, except with the consent of each Indemnified Party, consent to
entry of any judgment or enter into any settlement that does not include as an
unconditional term thereof the giving by the claimant or plaintiff to such
Indemnified Party of a release from all liability in respect to such claim or
litigation. Each Indemnified Party shall furnish such information regarding
itself or the claim in question as an Indemnifying Party may reasonably request
in writing and as shall be reasonably required in connection with defense of
such claim and litigation resulting therefrom.
18
If the Indemnification provided for in this agreement is held by a court of
competent jurisdiction to be unavailable to an Indemnified Party with respect to
any loss, liability, claim, damage, or expense referred to therein, then the
Indemnifying Party, in lieu of indemnifying such Indemnified Party hereunder,
shall contribute to the amount paid or payable by such Indemnified Party as a
result of such loss, liability, claim, damage, or expense in such proportion as
is appropriate to reflect the relative fault of the Indemnifying Party on the
one hand and of the Indemnified Party on the other in connection with the
statements or omissions that resulted in such loss, liability, claim, damage, or
expense as well as any other relevant equitable considerations. The relative
fault of the Indemnifying Party and of the Indemnified Party shall be determined
by reference to, among other things, whether the untrue or alleged untrue
statement of a material fact or the omission to state a material fact relates to
information supplied by the Indemnifying Party or by the Indemnified Party and
the parties' relative intent, knowledge, access to information, and opportunity
to correct or prevent such statement or omission.
Notwithstanding the foregoing, to the extent that the provisions on
indemnification and contribution contained in the underwriting agreement entered
into in connection with the underwritten public offering are in conflict with
the foregoing provisions, the provisions in the underwriting agreement shall
control.
The Lender shall furnish to the Borrower such information regarding the Lender
and the distribution proposed by the Lender as the Borrower may reasonably
request in writing and as shall be reasonably required in connection with any
registration, qualification, or compliance referred to in Section 2.
The registration rights granted to the Lender herein may not be assigned,
transferred or otherwise conveyed and shall not be transferred to the purchaser
of any shares of Common Stock held by the Lender, except upon the prior written
consent of the Borrower.
4. Miscellaneous.
-------------
(a) Except as specifically modified hereby, all terms of the
Notes, as modified, are ratified and confirmed. Specifically, Borrower and
Lender agree to modify the due date of the Notes such that the Notes and any
interest accrued thereon shall be repaid at the Lender's option, whenever one of
the following events occurs:
i. A controlling interest in the Borrower is acquired by
a third party; or
ii. October 31, 2005; or
iii. The Borrower receives net cash proceeds from an
equity financing of $3,000,000 or more subsequent to
the date of this Promissory Note Modification
Agreement.
Additionally, Borrower and Lender agree that any payment pursuant to the Notes
shall first be credited to principal and the interest upon that portion of
principal so credited shall thereupon
19
cease. Whatever remains after the amount of such principal is deducted from
such payment shall be applied to the interest balance due.
Additionally, Borrower and Lender agree that if any payment of principal of
and/or accrued interest on the Notes is not paid as and when due and payable
hereunder, it shall thereupon accrue, and Borrower hereby expressly agrees to
pay as liquidated damages and not as a penalty, interest on the remaining unpaid
balance of principal and accrued but unpaid interest at the rate stated on the
Notes until all unpaid first principal and second interest is paid in full.
Additionally, Borrower and Lender agree that any payments of interest or
principal made by Borrower to Lender prior to June 31, 2002 will not be subject
to Borrower obtaining a waiver from any other entity.
Additionally, Borrower and Lender agree that all or part of the unpaid principal
or accrued and unpaid interest of the Notes is convertible into the Borrower's
Common Stock at any time at the option of Lender at a conversion price equal to
the lower of $2.50 or the average of the Borrower's Common Stock closing bid
price on the OTC:BB, NASDAQ or other established securities exchange or market
for the ten (10) consecutive trading days prior to the date Lender delivers
written notice of his conversion election to Borrower. Partial conversions shall
be allowed and upon a full conversion the Notes shall be deemed satisfied and
paid in full.
(b) Borrower acknowledges that the Notes, as modified, are in
full force and effect and are binding upon it, its successors and assigns
without any right or claim of offset other sum due. Lender expressly reserves
all rights against Borrower.
(c) Borrower has caused this Promissory Note Modification
Agreement to be executed by its duly authorized officer.
20
IN WITNESS WHEREOF, the undersigned have signed and sealed this
Agreement the day and year first above written.
WITNESSES: BORROWER:
VillageEDOCS.
By: /s/ K. ▇▇▇▇▇ ▇▇▇▇▇▇
---------------------------- ---------------------------------------
K. ▇▇▇▇▇ ▇▇▇▇▇▇
Its: President and Chief Executive Officer
----------------------------
LENDER:
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ and C. ▇▇▇▇ ▇▇▇▇▇▇▇▇
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
--------------------------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
By: /s/ C. ▇▇▇▇ ▇▇▇▇▇▇▇▇
--------------------------------------
C. ▇▇▇▇ ▇▇▇▇▇▇▇▇
21