EXHIBIT 10.31
NEITHER THIS SECURITY NOR THE SECURITIES
INTO WHICH THIS SECURITY IS CONVERTIBLE
HAVE BEEN REGISTERED WITH THE SECURITIES AND EXCHANGE COMMISSION OR THE
SECURITIES COMMISSION OF ANY STATE IN RELIANCE UPON AN EXEMPTION FROM
REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES
ACT"), AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT PURSUANT TO AN
EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR PURSUANT TO AN
AVAILABLE EXEMPTION FROM, OR IN A
TRANSACTION NOT SUBJECT TO, THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT AND IN ACCORDANCE WITH APPLICABLE STATE
SECURITIES LAWS AS EVIDENCED BY A LEGAL
OPINION OF COUNSEL TO THE TRANSFEROR TO
SUCH EFFECT, THE SUBSTANCE OF WHICH SHALL BE REASONABLY ACCEPTABLE TO THE
COMPANY. THIS SECURITY AND THE SECURITIES ISSUABLE UPON CONVERSION OF THIS
SECURITY MAY BE PLEDGED IN CONNECTION
WITH A BONA FIDE
MARGIN ACCOUNT OR
OTHER
LOAN SECURED BY SUCH SECURITIES.
Original Issue Date: March 31, 2005
Original Conversion Price (subject to
adjustment herein): $1.25
$_______________
8% CONVERTIBLE DEBENTURE
THIS DEBENTURE
is one of a series of
duly authorized
and issued 8%
Convertible Debentures of Ramp Corporation,
a Delaware
corporation,
having a
principal place of business at 33 Maiden
Lane, 5th Floor,
New York, New York
10038 (the "Company"), designated as its 8% Convertible Debenture (the
"Debenture(s)").
FOR VALUE
RECEIVED,
the
Company
promises
to
pay to
________________________ or its registered
assigns (the "Holder"), the principal
sum of $_______________ or such dates as the Debentures are required or
permitted to be repaid as provided hereunder, but in no event later than
February 1, 2006 (the "Maturity Date"), and
to pay interest to the Holder on the
aggregate unconverted and then outstanding
principal amount of this Debenture in
accordance with the provisions hereof. This Debenture is subject to the
following additional provisions:
Section 1.
Definitions. For the
purposes hereof,
in addition to the
terms defined elsewhere in this Debenture:
(a) capitalized terms
not otherwise
defined herein have the meanings given to
such terms in the Purchase Agreement,
and (b) the following terms shall have the
following meanings:
"Alternate
Consideration" shall have the meaning set forth in
Section 5(d).
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"Base Conversion
Price" shall have the meaning set forth
in
Section 5(b).
"Business Day"
means any day except
Saturday, Sunday and
any
day which shall be a federal legal holiday in the United States or a
day on which
banking institutions in the State of New York are
authorized or required by law or other government action to
close.
"Buy-In" shall have the meaning set forth in Section 4(d)(v).
"Change of Control Transaction" means the occurrence after the
date hereof of any of
(i) an acquisition
after the date hereof
by an
individual or legal entity or "group" (as described in Rule
13d-5(b)(1)
promulgated under the
Exchange Act) of effective control (whether
through legal or beneficial ownership of capital stock of the
Company,
by contract or otherwise) of in excess of 40% of the voting
securities
of the Company, or
(ii) a replacement at one time or within a two year
period of more than one-half of the members of the Company's board of
directors which is not approved by a majority of those individuals who
are members of the board of directors on the date hereof (or by
those
individuals who are serving as members of the board of directors on
any
date whose
nomination
to the board of
directors was approved by a
majority of the
members of the board of directors who are members on
the date hereof), or (iii) the execution by the Company of an
agreement
to which the Company is a party or by which it is bound,
providing for
any of the events set forth above in (i) or (ii).
"Closing Price"
means on any particular date (a) the last
reported closing
bid price per share of
Common Stock on such
date on
the Trading Market (as
reported by Bloomberg L.P. at 4:15 PM (New York
time), or (b) if there
is no such price on such date, then the closing
bid price on the Trading Market on the date nearest preceding such
date
(as reported
by Bloomberg L.P. at 4:15 PM (New York time) for the
closing bid price for regular session trading on such day), or (c)
if
the Common Stock is
not then listed or quoted on a Trading Market and
if prices for the
Common Stock are then quoted on the OTC Bulletin
Board, the closing bid
price of the Common Stock for such date (or the
nearest preceding
date) on the OTC
Bulletin Board (as reported by
Bloomberg L.P. at 4:15
PM (New York time),
(d) if the Common Stock is
not then listed or quoted on the Trading Market and if prices for the
Common Stock are then
reported in the "pink
sheets" published by
the
Pink Sheets LLC (formerly the National Quotation Bureau Incorporated
(or a similar
organization or agency
succeeding
to its functions
of
reporting prices),
the most recent bid price per share of the
Common
Stock so reported,
or (e) if the shares
of Common Stock are
not then
publicly traded the
fair market
value of a share of
Common Stock as
determined by a qualified independent appraiser selected in
good faith
by the Company,
with the consent of
the Purchasers
of a majority in
interest of the Shares then outstanding, which consent shall not be
unreasonably withheld.
"Common Stock" means
the common stock, par
value $0.001 per
share, of the
Company and stock of any other
class into which such
shares may hereafter have been reclassified or changed.
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"Conversion Date"
shall have the meaning set forth in Section
4(a).
"Conversion Price" shall have the meaning set forth in Section
4(b).
"Conversion Shares"
means the shares of Common Stock issuable
upon conversion
of Debentures or as
payment of interest in accordance
with the terms.
"Debenture Register"
shall have the meaning set forth in
Section 2(c).
"Effectiveness Period"
shall have the meaning
given to such
term in the Registration Rights Agreement.
"Equity Conditions" shall mean, during the period in question,
(i) the Company shall have duly honored all conversions and
redemptions
scheduled to occur or
occurring by virtue of one or more Notice of
Conversions, if any,
(ii) all liquidated damages and other amounts
owing in respect of the Debentures shall have been paid; (iii)
there is
an effective
Registration
Statement pursuant to which the Holder
is
permitted to utilize
the prospectus
thereunder
to resell all of
the
shares issuable pursuant to the Transaction Documents (and the Company
reasonably believes,
in good faith, that such effectiveness will
continue uninterrupted
for the foreseeable
future), (iv) the Common
Stock is trading on the Trading Market or the OTC Bulletin Board and
all of the shares issuable pursuant to the Transaction Documents are
listed for trading on a Trading Market or the OTC Bulletin
Board (and
the Company reasonably
believes, in good faith, that trading of the
Common Stock on a Trading Market or OTC Bulletin
Board will
continue
uninterrupted for the
foreseeable future),
(v) there is a
sufficient
number of authorized
but unissued and otherwise unreserved shares of
Common Stock for the issuance of all of the shares issuable
pursuant to
the Transaction
Documents,
(vi) there is then
existing no Event of
Default or event
which, with the passage of time or the giving of
notice, would
constitute an Event of Default, (vii) all of the shares
issued or issuable
pursuant to the transaction proposed would not
violate the limitations set forth in Sections 4(c)(i) and 4(c)(ii) and
(viii) no public
announcement of a
pending or
proposed Fundamental
Transaction, Change of
Control Transaction or acquisition transaction
has occurred that has not been consummated.
"Event of Default" shall have the meaning set forth in Section
8.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended.
"Fundamental
Transaction" shall have the meaning set forth in
Section 5(d).
"Interest Conversion
Rate" means the lesser of (a) the
Conversion Price and (b) 90% of the lesser of (i) the average of
the 10
Closing Prices
immediately prior to
the applicable
Interest Payment
Date or (ii) the average of the 10 Closing Prices immediately prior to
the date the applicable interest payment shares are issued and
delivered if after the Interest Payment Date.
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"Interest Payment
Date" shall have the meaning set forth
in
Section 2(a).
"Late Fees" shall have the meaning set forth in Section 2(d).
"Mandatory Prepayment
Amount" for any
Debentures shall equal
the greater of: (A) 110% of the principal amount of Debentures to be
prepaid, plus all
accrued and unpaid interest thereon, or (B) the
principal amount of
Debentures to be
prepaid, plus all
other accrued
and unpaid interest hereon, divided by the Conversion Price on
(x) the
date the Mandatory
Prepayment
Amount is demanded or
otherwise due or
(y) the date the Mandatory Prepayment Amount is paid in full,
whichever
is less, multiplied by
the Closing Price on (x) the date the Mandatory
Prepayment Amount is
demanded or otherwise due or (y) the date the
Mandatory Prepayment Amount is paid in full, whichever is
greater.
"Monthly Conversion Price" shall have the meaning set forth in
Section 6(a) hereof.
"Monthly
Redemption"
shall mean
the redemption of the
Debenture pursuant to Section 6(a) hereof.
"Monthly Redemption
Amount" shall mean, as to a Monthly
Redemption, $___________.(1)
"Monthly Redemption
Date" means the 1st of each month,
commencing on the
earlier of (a) the first such date
following the
120th day after the date of the Purchase Agreement and (b) the first
such date following
the 20th day after the
Effective Date and
ending
upon the full redemption of this Debenture.
"New York Courts"
shall have the meaning set forth in Section
9(d).
"Notice of Conversion"
shall have the
meaning set forth in
Section 4(a).
"Original Issue
Date" shall mean the date of the first
issuance of the Debentures regardless of the number of transfers of
any
Debenture and
regardless
of the number of
instruments
which may be
issued to evidence such Debenture.
"Person" means a corporation, an association, a partnership,
organization, a
business, an
individual,
a government
or political
subdivision thereof or a governmental agency.
"Purchase Agreement" means the Securities
Purchase Agreement,
dated as of March __,
2005, to which
the Company and the original
Holder are parties, as
amended, modified or
supplemented from time to
time in accordance with its terms.
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1
One-fifth of the original principal amount of this Debenture.
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"Registration Rights
Agreement" means the Registration Rights
Agreement, dated as of the date of the Purchase Agreement, to which
the
Company and the original Holder are parties, as amended, modified or
supplemented from time to time in accordance with its terms.
"Registration
Statement" means
a registration statement
meeting the
requirements
set forth in the Registration Rights
Agreement, covering
among other
things the resale of
the Conversion
Shares and naming the Holder as a "selling stockholder"
thereunder.
"Securities Act" means the Securities Act of 1933, as amended,
and the rules and regulations promulgated thereunder.
"Shareholder Approval"
shall have the meaning
given to such
term in the Purchase Agreement.
"Subsidiary" shall
have the meaning given to such term in the
Purchase Agreement.
"Threshold Period"
shall have the meaning
given to such term
in Section 6(d).
"Trading Day" means a
day on which the Common Stock is traded
on a Trading Market.
"Trading Market" means the following markets or exchanges on
which the Common Stock
is listed or quoted for trading on the date of
determination: the Nasdaq SmallCap Market, the American Stock
Exchange,
the New York Stock Exchange or the Nasdaq National Market.
"Transaction
Documents" shall have
the meaning set forth
in
the Purchase Agreement.
Section 2. Interest.
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a) Payment of Interest in Cash or Kind. The Company shall pay
interest to
the Holder on the aggregate unconverted and then
outstanding
principal amount of this Debenture at the rate of eight
percent (8%) per
annum, payable on each
Conversion
Date (as to that
principal amount then being converted) and on the Maturity Date
(except
that, if any such date
is not a Business Day,
then such payment shall
be due on the
next succeeding Business Day) and on each Monthly
Redemption Date (as to that principal amount then being redeemed)
(each
such date, an "Interest Payment Date"), at the Company's option, in
cash or shares of Common Stock at the Interest Conversion Rate, or a
combination thereof;
provided, however, payment in shares of Common
Stock may only occur if during the 10 Trading Days immediately
prior to
the applicable
Interest Payment Date all of the Equity Conditions have
been met and the
Company shall have given the Holder notice in
accordance with the notice requirements set forth below.
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<PAGE>
b) Company's Election
to Pay Interest in Kind. Subject to the
terms and conditions
herein, the decision whether to pay interest
hereunder in shares of Common Stock or cash shall be at the
discretion
of the Company. Not
less than 10 Trading
Days prior to each
Interest
Payment Date, the
Company shall provide the Holder with written notice
of its election to pay interest hereunder either in cash or shares of
Common Stock (the Company may indicate in such notice that the
election
contained in such
notice shall continue for later periods until
revised). Within 10 Trading Days prior to an Interest Payment Date,
the
Company's election
(whether specific to an Interest
Payment Date or
continuous) shall be
irrevocable
as to such
Interest Payment Date.
Subject to the
aforementioned
conditions, failure to
timely provide
such written
notice shall be deemed
an election by the Company to pay
the interest on such Interest Payment Date in cash.
c) Interest Calculations. Interest shall be calculated on
the
basis of a 360-day
year and shall accrue daily commencing on the
Original Issue
Date until payment in full of the principal sum,
together with all
accrued and unpaid
interest and other amounts which
may become due hereunder, has been made. Payment of interest
in shares
of Common Stock shall otherwise occur pursuant to Section
4(d)(ii) and
only for purposes of
the payment of interest in shares, the Interest
Payment Date shall be deemed the Conversion Date. Interest shall cease
to accrue with respect to any principal amount converted, provided
that
the Company in fact
delivers the
Conversion
Shares within the time
period required by Section 4(d)(ii). Interest hereunder will be
paid to
the Person in whose name this Debenture is registered on the
records of
the Company regarding
registration
and transfers of
Debentures (the
"Debenture Register").
Except as otherwise
provided herein, if at any
time the Company pays
interest partially in cash and partially in
shares of Common Stock, then such payment shall be distributed
ratably
among the Holders based upon the principal amount of Debentures
held by
each Holder.
d) Late Fee. All
overdue accrued
and unpaid
interest to be
paid hereunder shall entail a late fee at the rate of 18% per annum
(or
such lower maximum
amount of interest
permitted to be
charged under
applicable law) ("Late
Fees") which will accrue daily, from the date
such interest
is due hereunder through and including the date of
payment.
Notwithstanding anything to the contrary contained herein, if
on any Interest Payment Date the Company has elected to pay
interest in
Common Stock and is
not able to pay
accrued interest
in the form of
Common Stock
because it does not then satisfy the conditions for
payment in the form of
Common Stock set forth above, then, at the
option of the Holder, the Company, in lieu of delivering either
shares
of Common Stock
pursuant to this Section 2 or paying the
regularly
scheduled cash interest payment, shall deliver, within three Trading
Days of each applicable Interest Payment Date, an amount
in cash equal
to the product
of the number of shares of Common Stock otherwise
deliverable to the
Holder in connection
with the payment of
interest
due on such Interest Payment Date and the average of the Closing
Prices
during the period commencing on the Interest Payment Date and
ending on
the Trading Day prior to the date such payment is made.
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<PAGE>
e) Prepayment.
Except
as otherwise set forth in this
Debenture, the
Company may not prepay any portion of the principal
amount of this
Debenture without
the prior written consent of the
Holder.
Section 3. Registration of
Transfers and Exchanges.
----------
---------------------------------------
a) Different Denominations. This Debenture is exchangeable for
an equal aggregate principal amount of Debentures of different
authorized denominations, of not less than $50,000, as requested by
the
Holder surrendering
the same. No service
charge will be made for such
registration of transfer or exchange.
b) Investment Representations. This Debenture has been issued
subject to certain
investment
representations of the
original Holder
set forth in the Purchase Agreement and may be transferred or
exchanged
only in compliance with the Purchase Agreement and applicable
federal
and state securities laws and regulations.
c) Reliance on Debenture Register. Prior to due presentment to
the
Company for transfer of this Debenture, the Company and any agent
of the Company
may treat the Person
in whose name this
Debenture is
duly registered on the
Debenture Register as
the owner hereof for the
purpose of
receiving payment as herein provided and for all other
purposes, whether or
not this Debenture
is overdue,
and neither the
Company nor any such agent shall be affected by notice to the
contrary.
Section 4. Conversion.
---------- -----------
a) Voluntary Conversion. At any time after the Original
Issue
Date until this
Debenture is no longer
outstanding,
this Debenture
shall be convertible
into shares of Common
Stock at the option of the
Holder, in whole or in
part at any time and from time to time (subject
to the limitations on conversion set forth in Section 4(c) hereof).
The
Holder shall effect
conversions by
delivering to the Company the form
of Notice of
Conversion
attached hereto as Annex A (a "Notice of
Conversion"),
specifying therein the principal amount of Debentures to
be converted and the date on which such conversion is to be
effected (a
"Conversion Date").
If no Conversion Date
is specified in a Notice of
Conversion, the
Conversion Date shall
be the date that such Notice of
Conversion is provided hereunder. To effect conversions hereunder,
the
Holder shall not
be required to physically surrender Debentures to the
Company unless the entire principal amount of this Debenture plus
all
accrued and unpaid interest thereon has been so converted.
Conversions
hereunder shall have the effect of lowering the outstanding principal
amount of this Debenture in an amount equal to the applicable
conversion. The Holder
and the Company shall
maintain detailed and
accurate records showing the principal amount converted and the
date of
such conversions. The Company shall deliver any objection to any
Notice
of Conversion within 2
Business Days of receipt of such notice. In the
event of any dispute or discrepancy, the records of the Holder
shall be
controlling and
determinative in the
absence of manifest
error. The
Holder and any assignee, by acceptance of this Debenture,
acknowledge
and agree that, by reason of the provisions of this paragraph,
following conversion
of a portion of this
Debenture,
the
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<PAGE>
unpaid and unconverted
principal amount of
this Debenture may be less
than the amount stated on the face hereof.
b) Conversion Price.
The conversion price in effect on any
Conversion Date
shall be equal to $1.25 (subject to adjustment
herein)(the "Conversion Price").
c) Conversion Limitations.
----------------------
i. Trading Market
Limitations.
Notwithstanding
anything
herein to the
contrary, if the Company has not obtained
Shareholder Approval
(as defined below),
if required by the
applicable rules and regulations of the Trading Market (or any
successor entity),
then the Company may not issue upon
conversion of the
Debentures
in excess of 19.999% of the
number of shares of Common Stock outstanding on the Trading
Day immediately
preceding the Original
Issue Date, less
the
number of shares issued prior to such Conversion Date pursuant
to any Debentures
and less the number of
shares issued prior
to such Conversion
Date pursuant to any Warrants (such number
of shares, the
"Issuable Maximum"). Each Holder shall be
entitled to a portion
of the Issuable
Maximum equal to the
quotient obtained by
dividing (x) the aggregate principal
amount of the
Debenture(s) issued
and sold to such Holder on
the Original Issue Date by (y) the aggregate principal amount
of all Debentures
issued and sold by the Company on the
Original Issue Date.
If any Holder
shall no longer hold
the
Debenture(s),
then such Holder's remaining portion of the
Issuable Maximum
shall be allocated pro-rata among the
remaining Holders.
If on any Conversion Date: (1) the
applicable Conversion
Price then in effect is such that
the
shares of Common Stock
issuable under this
Debenture on any
Conversion Date
together with the aggregate number of shares
of Common Stock that would then be issuable upon conversion in
full of all then
outstanding
Debentures
would exceed the
Issuable Maximum, and (2) the Company's shareholders shall not
have previously approved the transactions contemplated by the
Transaction Documents,
as may be required by
the applicable
rules and regulations
of the Trading Market (or any successor
entity), if any (the "Shareholder Approval"), then the Company
shall issue to the Holder requesting a conversion a number
of
shares of Common Stock equal to such Holder's pro-rata portion
(which shall be
calculated pursuant to
the terms hereof)
of
the Issuable Maximum and, with respect to the remainder of the
aggregate principal
amount of the
Debentures (including
any
accrued interest)
then held by such Holder for which a
conversion in accordance with the applicable conversion price
would result in an
issuance of shares of Common Stock in
excess of such
Holder's pro-rata portion (which shall be
calculated pursuant
to the terms hereof) of the Issuable
Maximum (the
"Excess Principal"), the Company shall be
prohibited from converting such Excess Principal, and shall
notify the Holder of the reason therefor. This Debenture shall
thereafter be
unconvertible
to such extent until
and unless
Shareholder Approval is subsequently obtained or is otherwise
not required, but this
Debenture shall
otherwise remain in
full force and effect.
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<PAGE>
ii. Holder's
Restriction on Conversion. The Company shall
not effect any
conversion of this
Debenture, and the
Holder
shall not have the right to convert any portion of this
Debenture, pursuant
to Section 4(a) or otherwise, to the
extent that after giving effect to such conversion, the Holder
(together with the Holder's affiliates), as set forth on the
applicable Notice of
Conversion, would
beneficially
own in
excess of 4.99% of the
number of shares of the Common Stock
outstanding
immediately
after giving
effect
to such
conversion. For purposes of the foregoing sentence, the number
of shares of Common Stock beneficially owned by the Holder and
its affiliates
shall include the number of shares of
Common
Stock issuable upon
conversion of this Debenture with respect
to which the determination of such sentence is being made, but
shall exclude the number of shares of Common Stock which would
be issuable upon (A) conversion of the remaining, nonconverted
portion of this Debenture beneficially owned by the Holder
or
any of its affiliates
and (B) exercise or
conversion of the
unexercised or nonconverted portion of any other securities of
the Company
(including,
without
limitation,
any other
Debentures or
the Warrants) subject to a limitation on
conversion or exercise
analogous to the limitation contained
herein beneficially
owned by the Holder or any of its
affiliates. Except as set forth in the preceding sentence, for
purposes of this Section 4(c)(ii), beneficial ownership shall
be calculated in accordance with Section 13(d) of the Exchange
Act. To the
extent that the limitation contained in this
section applies, the
determination of
whether this Debenture
is convertible (in relation to other securities owned by the
Holder) and
of which a portion of this Debenture is
convertible shall be in the sole discretion of such Holder. To
ensure compliance with
this restriction,
the Holder will be
deemed to represent
to the Company each time it delivers a
Notice of Conversion
that such Notice of
Conversion has not
violated the
restrictions set forth in this paragraph and the
Company shall have no
obligation
to verify or
confirm the
accuracy of such
determination. For
purposes of this Section
4(c)(ii), in
determining the number of outstanding shares of
Common Stock, the Holder may rely on the number of outstanding
shares of Common Stock as reflected in (x) the Company's
most
recent Form 10-Q or Form 10-K, as the case may be, (y) a more
recent public
announcement
by the Company or (z) any other
notice by the Company or the Company's Transfer Agent setting
forth the number of shares of Common Stock outstanding. Upon
the written request of
the Holder, the
Company shall
within
two Trading Days
confirm in writing to
the Holder the number
of shares of Common Stock then outstanding. In any case, the
number of outstanding shares of Common Stock shall be
determined after
giving effect to the
conversion or exercise
of securities of the Company, including this Debenture, by the
Holder or its
affiliates
since the date as of which such
number of outstanding shares of Common Stock was reported. The
provisions of this
Section 4(c)(ii) may be waived by the
Holder upon, at the
election of the Holder, not less than 61
days' prior notice to the Company, and the provisions of this
Section 4(c)(ii)
shall continue to
apply until such 61st day
(or such later date, as determined by the Holder, as may be
specified in such notice of waiver).
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d) Mechanics of
Conversion
-----------------------
i. Conversion Shares
Issuable Upon Conversion of Principal
Amount. The number of
shares of Common Stock
issuable upon a
conversion hereunder
shall be determined by the quotient
obtained by dividing (x) the outstanding principal amount of
this Debenture to be converted by (y) the Conversion Price.
ii. Delivery of Certificate Upon Conversion. Not later than
three Trading
Days after any Conversion Date, assuming
Holder's compliance with Section 4(c) hereof, the Company will
deliver to
the Holder (A) a certificate or certificates
representing the
Conversion
Shares which,
if not otherwise
required to have a legend pursuant to Section 4.1(c) of the
Purchase Agreement,
shall be free of
restrictive legends and
trading restrictions,
representing
the number of shares of
Common Stock being
acquired upon the conversion of Debentures
(including, if so
timely elected by the
Company, shares of
Common Stock representing the payment of accrued interest) and
(B) a bank check in the amount of accrued and unpaid interest
(if the Company is required to pay accrued interest in cash).
The Company
shall,
if available and if allowed under
applicable securities
laws, use its best efforts to
deliver
any certificate or
certificates
required to be
delivered by
the Company
under this
Section electronically through the
Depository Trust Corporation or another established clearing
corporation performing similar functions.
iii. Failure to Deliver Certificates. If in the case of any
Notice of Conversion such certificate or certificates are
not
delivered to or as
directed b
