EXHIBIT 10.40
EXHIBIT 1.1A
(FORM OF SENIOR SUBORDINATED NOTE)
THIS NOTE AND THE INDEBTEDNESS EVIDENCED HEREBY ARE SUBORDINATE IN THE MANNER
AND TO THE EXTENT SET FORTH IN THAT CERTAIN SUBORDINATION AGREEMENT, DATED AS OF
DECEMBER 7, 2000 (THE "SUBORDINATION AGREEMENT"), AMONG HOLDER, CERTAIN OF
HOLDER'S AFFILIATES, AND IMPERIAL BANK, AND EACH HOLDER OF THIS NOTE, BY ITS
ACCEPTANCE HEREOF, SHALL BE BOUND BY THE PROVISIONS OF THE SUBORDINATION
AGREEMENT.
THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED, OR APPLICABLE STATE SECURITIES LAWS. THESE SECURITIES
MAY NOT BE SOLD, MORTGAGED, PLEDGED, HYPOTHECATED OR OTHERWISE TRANSFERRED
WITHOUT AN EFFECTIVE REGISTRATION STATEMENT FOR SUCH SECURITIES UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, AND APPLICABLE STATE SECURITIES LAWS, OR THE
AVAILABILITY OF AN EXEMPTION FROM THE REGISTRATION PROVISIONS OF THE SECURITIES
ACT OF 1933, AS AMENDED, AND APPLICABLE STATE SECURITIES LAWS.
10.0% SENIOR SUBORDINATED NOTE
DUE DECEMBER 7, 2005
$____________ November __, 2002
SECTION 1. Payment Obligation. VIEWLOCITY, INC., a Delaware
corporation, having an address at ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇ ▇▇▇▇▇ (herein called the "Corporation"), for value received, hereby
promises to pay to [insert as applicable] ____________ (hereinafter referred to
as the "Holder"), the principal sum of $____________ on the Maturity Date, or
such earlier date as provided in the Purchase Agreement, and to pay interest
(compounded on the basis of a 365 day year) from the date hereof on the unpaid
balance of such principal amount from time to time outstanding at the rate of
10.0% per annum. All such accrued interest shall be paid to Holder at the end of
each calendar quarter following the date of this note until the Maturity Date,
upon which the principal amount and any accrued interest shall be paid to
Holder. Payment of the principal of and interest on this Note as well as all
other amounts payable in connection with the repayment of this Note will be made
by cashiers check or by wire transfer of immediately available funds, in
currency of the United States of America as at the time of payment is legal
tender for payment of public and private debts, at such address or to such
account, as applicable, as shall be designated to the Corporation by the Holder.
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SECTION 2. Definitions. Capitalized terms used herein but not otherwise
defined herein shall have the meaning ascribed thereto in the Purchase
Agreement. As used herein, the following terms will be deemed to have the
meanings set forth below:
"MATURITY DATE" means December 7, 2005.
"NOTE" means this 10.0% senior subordinated note issued by the
Corporation.
"PURCHASE AGREEMENT" means that certain Securities Purchase Agreement,
dated as of December 7, 2000, among the Corporation and each Person identified
therein as a "Purchaser,", as amended.
SECTION 3. [Intentionally Omitted]
SECTION 4. OPTIONAL PREPAYMENT. This Note shall be subject to optional
prepayment, at the option of the Corporation, in accordance with the terms and
conditions of the Purchase Agreement.
SECTION 5. MANDATORY PREPAYMENT. This Note shall be subject to
mandatory prepayment, at the option of the Majority Holders, in accordance with
the terms and conditions of the Purchase Agreement.
SECTION 6. ACCELERATION. This Note and the indebtedness evidenced
hereby is subject to acceleration under the terms and conditions set forth in
the Purchase Agreement.
SECTION 7. CERTAIN ADDITIONAL COVENANTS. In addition to such covenants
as are set forth in the Purchase Agreement, the Corporation covenants to the
holder of this Note that, so long as the Corporation has or may have any
obligation under this Note:
(a) It will comply in all material respects with all applicable laws
and orders to which it may be subject, if failure to do so would materially
impair its ability to perform its obligations under this Note.
(b) It will notify the holder of this Note immediately upon the
occurrence of an Event of Default.
(c) It will not use the proceeds of the Notes in any manner that would
cause such borrowing or the application of such proceeds to violate any
applicable law, rule or regulation.
SECTION 8. NOTE REGISTER.
(a) The Corporation shall keep at its principal executive office a
register for the registration and registration of transfers of Notes. The name
and address of each holder of one or more Notes, each transfer thereof and the
name and address of each transferee of one or more Notes shall be registered in
such register. Prior to due presentment for registration of
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transfer, the person in whose name any Note shall be registered shall be deemed
and treated as the owner and holder thereof for all purposes hereof, and the
Corporation shall not be affected by any notice or knowledge to the contrary.
(b) Each holder of a Note shall be deemed to have agreed by acceptance
of such Note, not to transfer Notes except in minimum denominations of $500,000
(or if less with respect to any Note, the entire unpaid principal amount of such
Note).
(c) Upon receipt by the Corporation of evidence reasonably satisfactory
to it of the loss, theft, destruction or mutilation of this Note and of
indemnity reasonably satisfactory to it, and upon reimbursement to the
Corporation of all reasonable expenses incidental thereto, and upon surrender
and cancellation of this Note (in case of mutilation) the Corporation will make
and deliver in lieu of this Note a new Note of like tenor and unpaid principal
amount and dated as of the date to which interest has been paid on the unpaid
principal amount of this Note in lieu of which such new Note is made and
delivered.
SECTION 9. Miscellaneous. (a) All notices, requests, demands and other
communications hereunder shall be in writing and shall be personally delivered
or sent by registered or certified mail, postage prepaid to the Holder and/or
the Corporation at their addresses first set forth above (or to such other
address as may be designated by any such party in a notice given pursuant to
this paragraph), with a copy to ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, Attention: ▇▇▇▇ ▇▇▇▇▇▇▇ Hilson, Esq.
(b) In the event of prepayment or conversion of this Note in part only,
a new note or notes for the unpaid or unconverted portion hereof will be issued
in the name of the Holder upon the cancellation hereof. Each such note shall be
in substantially the same form as this Note.
(c) This Note shall be governed by and construed in accordance with the
laws of the State of California. The Corporation and Holder hereby submit to the
exclusive jurisdiction of the state and federal courts located in the County of
San Francisco, State of California.
(d) The Corporation agrees, to the extent permitted by law, to pay to
the Holder all costs and expenses (including attorneys fees) incurred by it in
the collection hereof or the enforcement of any right or remedy provided for
herein (including such costs and expenses incurred in connection with a workout
or an insolvency or bankruptcy proceeding).
(e) TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE CORPORATION AND THE
HOLDER OF THIS NOTE HEREBY EXPRESSLY WAIVE ANY RIGHT TO TRIAL BY JURY OF ANY
ACTION, CAUSE OF ACTION, CLAIM, DEMAND, OR PROCEEDING ARISING UNDER OR WITH
RESPECT TO THIS NOTE, OR IN ANY WAY CONNECTED WITH, RELATED TO, OR INCIDENTAL TO
THE DEALINGS OF THE CORPORATION AND THE HOLDER WITH RESPECT TO THIS NOTE, OR THE
TRANSACTIONS RELATED HERETO, IN EACH CASE WHETHER
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NOW EXISTING OR HEREAFTER ARISING, AND IRRESPECTIVE OF WHETHER SOUNDING IN
CONTRACT, TORT, OR OTHERWISE. TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE
CORPORATION AND THE HOLDER OF THIS NOTE HEREBY AGREE THAT ANY SUCH ACTION, CAUSE
OF ACTION, CLAIM, DEMAND, OR PROCEEDING SHALL BE DECIDED BY A COURT TRIAL
WITHOUT A JURY AND THAT EITHER PARTY MAY FILE A COPY OF THIS SECTION WITH ANY
COURT OR OTHER TRIBUNAL AS WRITTEN EVIDENCE OF THE CONSENT OF THE OTHER PARTY TO
THE WAIVER OF ITS RIGHT TO TRIAL BY JURY.
(f) All payments made by the Corporation in respect of principal of,
and interest on, this Note will be made without set-off, counterclaim or other
defense. The Corporation shall pay on demand all stamp, documentary and other
similar duties and taxes, if any, to which this Note from time to time may be
subject or give rise.
(g) The Corporation may not assign any of its rights or delegate any of
its obligations under this Note (or any part thereof) without the prior written
consent of Holder.
(h) The Corporation hereby waives diligence, presentment, protest,
demand, and notice of every kind other than notices expressly provided herein or
by the Purchase Agreement or required by applicable law and, to the full extent
permitted by law, the right to plead any statute of limitations as a defense to
any demand hereunder.
[signature page follows]
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IN WITNESS WHEREOF, the undersigned has executed this Note effective as
of the date first above written.
VIEWLOCITY, INC.,
a Delaware corporation
By:
Title:
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