Exhibit 10.4
THIS NOTE HAS BEEN ACQUIRED FOR INVESTMENT
PURPOSES ONLY AND MAY NOT BE TRANSFERRED UNTIL (I) A REGISTRATION
STATEMENT UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
“ACT”) SHALL HAVE BECOME EFFECTIVE WITH RESPECT THERETO
OR (II) RECEIPT BY THE ISSUER OF AN OPINION OF COUNSEL REASONABLY
SATISFACTORY TO THE ISSUER TO THE EFFECT THAT REGISTRATION UNDER
THE ACT IS NOT REQUIRED IN CONNECTION WITH SUCH PROPOSED TRANSFER
AND THAT SUCH TRANSFER IS NOT IN VIOLATION OF ANY APPLICABLE STATE
SECURITIES LAWS. THIS LEGEND SHALL BE ENDORSED UPON ANY NOTE ISSUED
IN EXCHANGE FOR THIS NOTE.
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, 2002
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$1,052,022.00
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Atlanta, Georgia
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AMENDED AND
RESTATED
CONVERTIBLE PROMISSORY
NOTE
WHEREAS, TRX, Inc.
(“Borrower”) issued a convertible promissory note in
favor of BCD Technology, SA (“BCD”) on November 16,
2006 (the “Original Note”); and
WHEREAS, BCD assigned $2,600,000.00
of the Original Note to WorldTravel Partners I, LLC; and
WHEREAS, this Amended and Restated
Convertible Promissory Note (the “Note”) amends and
restates the Original Note in its entirety.
FOR VALUE RECEIVED, Borrower
unconditionally promises to pay to BCD on November 16, 2006 (the
“Due Date”) (unless and only to the extent that this
Note shall have been sooner paid off or converted as herein
provided), without setoff, at its offices at 1055 Lenox Park
Boulevard, Suite 420, Atlanta, Georgia 30319, or at such other
place as may be designated by BCD in writing, the principal amount
of One Million Fifty Two Thousand and Twenty Two Dollars
($1,052,022.00) together with interest computed daily on the
outstanding principal balance hereunder, at an annualized interest
rate equal to 7% (the “Note”).
1. Fees and Charges .
Notwithstanding any other provision contained in this Note, BCD
does not intend to charge and Borrower shall not be required to pay
any amount of interest or other fees or charges that are in excess
of the maximum permitted by applicable law. Any payment in excess
of such maximum shall be refunded to Borrower or credited against
principal, at the option of BCD.
2. Conversion
.
2.1 Subject to the provisions of
this Section, at the option of BCD, all of the outstanding
principal amount plus any accrued and due but unpaid interest under
this Note may be converted, in whole, at any time on or before the
Maturity Date, into shares of the Company’s common stock,
$.01 par value per share (the “Common Stock”), at the
Conversion Price, determined as provided below, provided,
however, if prior to such conversion the Company shall issue
any other class or series of capital stock (the “Senior
Stock”), BCD, at its option, may elect
to convert all of the outstanding
principal amount plus any accrued and due but unpaid interest under
this Note into shares of the Senior Stock on the terms and
conditions as set forth herein.
2.2 Upon conversion of this Note,
BCD shall be entitled to receive one share of Common Stock for each
Eleven Dollars and 03/100 cents ($11.03) of principal and accrued
and due but unpaid interest through the Conversion Date
(“Conversion Price”). As payment of accrued and unpaid
but not yet due interest, at the election of the Company BCD shall
be entitled to receive either (a) a number of shares of Common
Stock equal to such amount of interest divided by the Conversion
Price, or (b) a cash amount equal to such amount of interest. No
fractional shares of Common Stock shall be issued upon the
conversion of this Note. Instead of a fraction of a share of Common
Stock which would otherwise be issuable upon conversion of this
Note, the Company shall pay a cash adjustment in respect of such
fraction of a share of Common Stock in an amount equal to the same
fractional interest of the Conversion Price. The Company shall pay
all taxes and other charges in respect of the issuance of shares of
Common Stock to BCD upon such conversion.
2.3 In the case that the Company
shall, after the date hereof, issue or enter into an agreement to
issue additional shares of Common Stock, or securities convertible
into Common Stock (except for (i) shares of capital stock issued
upon conversion of any shares of the Company’s preferred
stock, (ii) shares of capital stock issued or issuable pursuant to
options or purchase agreements, warrants, capital appreciation
rights, calls, convertible shares, convertible debt securities or
other rights to acquire the Company’s authorized and unissued
capital stock which are outstanding on the date hereof, (iii)
shares issued pursuant to options granted under the Company’s
option plan after the date hereof so long as the exercise price of
such options is greater than $5.51, (iv) shares of Common Stock
issued pursuant to a subdivision of the Common Stock or stock
dividend pursuant to which the number of shares for which this Note
is convertible and the purchase price therefore are adjusted
pursuant to Section 2.6 hereof, or (iv) shares of capital stock
issued pursuant to the exchange, conversion or exercise of any
securities convertible into Common Stock that have previously been
incorporated into computations hereunder) at a purchase price per
share for which Common Stock is issuable is less than the
Conversion Price then in effect (the “ Dilutive Purchase
Price” ), the Conversion Price then in effect shall
become the Dilutive Purchase Price. Promptly after any adjustment
in the Conversion Price pursuant to this Section 2.3, the Company
shall give written notice to BCD of the Conversion Price following
such adjustment, together with a schedule of computations of such
adjustment and confirmation from the Company’s auditors of
such adjustment.
2.4 In order to exercise the right
of conversion pursuant to Section 2.1 above, BCD shall give written
notice to the Company that BCD has elected to convert this Note.
Following receipt of such conversion notice, BCD shall surrender
this Note to the Company at its principal office. Upon receipt of
the Note so surrendered by BCD, the Company shall issue and deliver
to BCD the certificate or certificates or other document evidencing
the shares of Common Stock issuable on such conversion. Such
conversion shall be deemed to have been effected at the close of
business on the date of surrender of the Note to the Company (the
“Conversion Date”) and at such time all rights of BCD
under this Note shall cease and BCD shall be deemed to have become
a holder of record of the shares of Common Stock of the Company
into which this Note was converted.
2
2.5 In the event of any taking by
the Company of a record of the holders of any class of securities
for the purpose of determining the holders thereof who are entitled
to receive any dividend or other distribution or any right to
subscribe for, purchase or otherwise acquire any shares of stock of
any class or any other securities or property, or to receive any
other right, the Company shall mail to BCD, at least twenty (20)
days prior to the date specified therein, a notice specifying the
date on which any such record is to be taken for the purpose of
such dividend, distribution or rights, and the amount and character
of such dividend, distribution or rights.
2.6 Anti-Dilution Adjustments
.
(a) If the Company shall at any time
subdivide the outstanding shares of Common Stock or effect a
forward stock split by issuing stock dividends, then the number of
shares of Common Stock for which this Note is convertible
immediately prior to that subdivision (the “Number of Note
Shares”) shall be proportionately increased and the purchase
price therefor proportionately decreased, and if the Company shall
at any time combine the outstanding shares of Common Stock, then
the Number of Note Shares shall be proportionately decreased and
the purchase price therefor proportionately increased. Any
adjustment under this Section 2 shall become effective at the close
of business on the date the subdivision or combination becomes
effective.
(b) If the Common Stock issuable on
conversion of this Note shall be changed into the same or a
different number of shares of any other class or classes of stock,
whether by capital reorganization, reclassification, or otherwise
(other than a subdivision or combination of shares provided for
above), then BCD of this Note shall, upon its conversion, be
entitled to receive, in lieu of the Common Stock which BCD would
have become entitled to rece
