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Exhibit 99.1
THE SECURITIES EVIDENCED HEREBY HAVE NOT BEEN REGISTERED UNDER
THE SECURITIES
ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR UNDER ANY
APPLICABLE STATE
SECURITIES LAW AND MAY NOT BE TRANSFERRED, SOLD OR OTHERWISE
DISPOSED OF IN THE
ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT UNDER THE
SECURITIES ACT OR AN
OPINION OF COUNSEL THAT SUCH REGISTRATION STATEMENT IS NOT
REQUIRED UNDER THE
SECURITIES ACT AND THE RULES AND REGULATIONS PROMULGATED
THEREUNDER OR UNDER
APPLICABLE STATE SECURITIES LAWS.
$______________
ACCESS WORLDWIDE COMMUNICATIONS, INC.
5.0% CONVERTIBLE PROMISSORY NOTE
ACCESS WORLDWIDE COMMUNICATIONS, INC., a Delaware corporation
(along
with its subsidiaries, the "Company"), promises to pay to
___________________________________________________ (the
"Holder") the principal
sum of __________________________________ Dollars and ____/100
($______________)
on the Maturity Date (as defined below), together with accrued
and unpaid
interest thereon.
Pursuant to this promissory note (the "Note"), the Holder is
funding
_______________________________________ Dollars
($_______________) in cash or
other immediately available funds to the Company on the date of
execution
hereof.
This Note shall mature on the date (the "Maturity Date") that is
the
earliest of (a) 39 months from the date of issuance (the
"Issuance Date") or (b)
upon a Change of Control (as defined below), in either case,
only after (i) all
amounts due under any and all agreements or other instruments
evidencing the
Company's Institutional Debt (as defined below) have been
indefeasibly paid in
full in cash or (ii) the holder of the Company's Institutional
Debt consents in
writing to the repayment of the principal amount hereof and all
accrued and
unpaid interest thereon. Provided, however, that if the
principal amount hereof
and all accrued and unpaid interest thereon are not paid at the
Maturity Date,
such failure to pay shall result in an Event of Default as
described in Section
3 hereof and interest hereon shall accrue at Default Rate (as
defined below) and
the Holder hereof shall be immediately entitled to receive, and
the Company
shall issue to the Holder as soon thereafter as practicable,
that number of
warrants (in the form attached as Exhibit "A" hereto, the
"Additional Warrant")
equal to fifty percent (50%) of the remaining outstanding
principal balance of
this Note as of the Maturity Date, and all accrued and unpaid
interest hereon,
divided by $1.00.
For purposes of this Note, a "Change of Control" shall be deemed
to
occur on the effective date of any merger, consolidation, or
reorganization
which results in the holders of the outstanding voting
securities of the Company
(determined immediately prior to such merger or consolidation)
owning less than
an majority of the outstanding voting securities of the
surviving corporation
<PAGE>
(determined immediately following such merger or consolidation),
or any sale or
transfer by the Company of all or substantially all of its
assets.
Notwithstanding the foregoing, a Change of Control shall not be
deemed to occur
if the Company either merges or consolidates with or into
another company or
sells or disposes of all or substantially all of its assets to
another company,
if such merger, consolidation, sale or disposition is in
connection with a
corporate restructuring wherein the stockholders of the Company
immediately
before such merger, consolidation, sale, or disposition own,
directly or
indirectly, immediately following such merger, consolidation,
sale, or
disposition at least a majority of the combined voting power of
all outstanding
classes of securities of the company resulting from such merger
or
consolidation, or to which the Company sells or disposes of its
assets, in
substantially the same proportion as their ownership in the
Company immediately
before such merger, consolidation, sale, or disposition.
For purposes of this Note, "Institutional Debt" means the
principal of
and premium, if any, and interest on (including interest which
accrues after a
bankruptcy, notwithstanding any law to the contrary), and any
other
indebtedness, obligations, liabilities, charges, fees, costs,
and expenses
payable pursuant to the terms of instruments creating or
evidencing indebtedness
of the Company outstanding as of the date of initial issuance of
this Note or
indebtedness thereafter created, assumed, incurred, or
guaranteed by the Company
and its affiliates, and all renewals, extensions, and refinances
thereof, which
is payable to banks, commercial finance companies, insurance
companies or other
institutional lenders including, without limitation,
CapitalSource Finance LLC
and its affiliates (the "Senior Lender").
Interest on the principal amount of this Note shall accrue at
the rate
of five percent (5.0%) per annum from the original date of
issuance of this
Note. Interest accrued on the outstanding principal balance of
this Note shall
be payable in cash or other immediately available funds to the
Holder quarterly
in arrears; provided that any such payment shall be made only
from Excess Cash
Flow of the Company (as such term is defined in the credit
agreement with the
Senior Lender) and the Company is in compliance with all
representations,
covenants, and agreements under any and all credit agreements or
other
instruments evidencing the Company's Institutional Debt, and
provided that such
payment will not cause the Company to violate any such
representations,
covenants, and agreements. Copies of all credit agreements and
other instruments
evidencing the Company's Institutional Debt are available for
the Holder's
review at the Company's executive offices. The first interest
payment shall be
made on the last day of the Company's next fiscal quarter
following the
execution of this Note and each subsequent interest payment
shall be due on the
last day of each quarterly period thereafter. In the event that
any interest
payment is not made within 30 days of the date such interest
payment comes due
("Interest Default Date") then the interest rate of this Note
shall increase to
eight percent (8%) and the Company shall be required to pay to
the Holder an
amount equal to the difference between the amount of the
interest that would
have been paid to the Holder had the interest rate hereon been
eight percent
(8%) at the original date of issuance of this Note and the
amount of interest
actually paid to the Holder thru the Interest Default Date. Any
unpaid interest
accrued on the outstanding principal balance of this Note shall
be payable in
cash or other immediately available funds to the Holder upon the
earlier of (i)
the Maturity Date, (ii) upon acceleration of all amounts due and
owing hereunder
in accordance with the terms hereinafter set forth or (iii) the
date on which
Holder elects to convert the principal amount of this Note into
shares of the
Company's common stock, par value $0.01 per share, (the "Common
Stock") in
accordance with the terms described hereinafter.
<PAGE>
The principal amount and all accrued and unpaid interest thereon
may be
paid before the Maturity Date, in full or in part, subject to
obtaining the
prior written consent of the holder of the Company's
Institutional Debt, at any
time by providing the Holder 30 days written notice of its
intent to prepay all
or any part of the Note.
Upon any bankruptcy, insolvency, dissolution, receivership, or
other
proceeding involving the Company, all Institutional Debt shall
first be
indefeasibly paid in full in cash before any payment or
distribution of any kind
is made to the Holder of this Note and any payment or
distribution that may be
made with respect to this Note, whether in cash, securities, or
otherwise, shall
be held in trust for the benefit of the holder of the
Institutional Debt and
immediately upon receipt delivered to the holder of the
Institutional Debt.
This Note is being issued pursuant to an exemption from
registration
under the Securities Act and the rules and regulations
promulgated thereunder.
The Holder represents to the Company that it is aware of the
Company's
business affairs and financial condition and has acquired
sufficient information
about the Company to reach an informed and knowledgeable
decision to acquire
this Note and the shares issuable upon conversion of this Note.
The holder of
this Note further represents that it is acquiring this Note and
the right to
acquire the shares issuable upon conversion of this Note for
investment purposes
only, for its own account only and not with a view to, or for
resale in
connection with, any "distribution" thereof within the meaning
of the Securities
Act.
1. Conversion.
(a) The Holder may convert all or any part of the principal
amount of this Note, and any accrued and unpaid interest
thereon, into shares of
Common Stock, at any time after the Effective Date (as defined
below) and until
all principal and accrued interest thereon is paid in full (the
"Conversion
Period"), at a conversion price equal to $1.00 per share, as
adjusted as
provided herein (the "Conversion Price"), such that the Holder
shall be entitled
to receive upon conversion of all or any part of this Note that
number of shares
equal to the principal amount of this Note (and any accrued and
unpaid interest
thereon) requested to be converted divided by the Conversion
Price then in
effect. The shares of such Common Stock, or other securities
into which this
Note may be converted as a result of transactions contemplated
by Section 2
hereof, issuable upon conversion of this Note are referred to
herein as the
"Conversion Shares."
(b) The Company shall at all times cause to be reserved for
issuance such number of authorized and unissued shares of Common
Stock as shall
be sufficient for conversion of this Note. Furthermore, the
Company covenants
that upon issuance of the Conversion Shares in accordance with
the terms hereof
such shares shall be duly authorized, validly issued and
outstanding, fully paid
and non-assessable shares of Common Stock.
<PAGE>
(c) The Company shall deliver a certificate or certificates
for the Conversion Shares as soon as practicable after surrender
of this Note
for conversion, but the person or persons to whom such
certificates are issuable
shall be considered the holder of record of such shares from the
time this Note
is surrendered. Except as described herein, this Note is not
otherwise
convertible into any other shares of the Company's capital
stock.
(d) The certificates representing the Conversion Shares
shall bear a legend substantially similar to the following:
"The securities represented by this certificate have not
been
registered under the Securities Act of 1933, as amended (the
"Act"), and may not be offered or sold except (1) pursuant to
an
effective registration statement under the Act or (2) upon
the
delivery by the holder to the Company of an opinion of
counsel
that an exemption from registration under such Act is
available."
2. Anti-dilution.
(a) Stock Splits and Combinations. If the Company shall
combine all of its outstanding shares of Common Stock into a
smaller number of
shares, the number of Conversion Shares issuable hereunder shall
be
proportionately decreased and the Conversion Price in effect
immediately prior
to such combination shall be proportionately increased, as of
the effective date
of such combination, as follows: (i) the number of Conversion
Shares purchasable
immediately prior to the effective date of such combination
shall be adjusted so
that the Holder of this Note, if converted on or after that
date, shall be
entitled to receive the number and kind of Conversion Shares
which the Holder of
this Note would have owned and been entitled to receive as a
result of the
combination had the Note been converted immediately prior to
that date and (ii)
the Conversion Price in effect immediately prior to such
adjustment shall be
adjusted by multiplying such Conversion Price by a fraction, the
numerator of
which is the aggregate number of Conversion Shares purchasable
upon conversion
of this Note immediately prior to such adjustment, and the
denominator of which
is the aggregate n
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