THIS
PROMISSORY NOTE AND THE SECURITIES OBTAINABLE UPON CONVERSION
HEREOF (COLLECTIVELY, THE “SECURITIES”) HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (“THE
ACT”), OR THE SECURITIES LAWS OF ANY STATE. THE SECURITIES
MAY NOT BE PLEDGED, SOLD, ASSIGNED OR TRANSFERRED EXCEPT PURSUANT
TO AN EFFECTIVE REGISTRATION STATEMENT UNDER SUCH ACT AND
APPLICABLE STATE SECURITIES LAWS OR PURSUANT TO AN APPLICABLE
EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF SUCH ACT AND SUCH
LAWS.
SENIOR
SECURED CONVERTIBLE NOTE
FOR
VALUE RECEIVED, Juniper Content Corporation, a Delaware corporation
(the “Company”), hereby promises to pay to the order of
(the “Lender”) the principal amount of
($
) Dollars (the “Principal Amount”), together with all
accrued but unpaid interest on this Note on August 31, 2009
(the “Maturity Date”), subject to conversion as
provided herein. The outstanding Principal Amount of this Note
shall bear interest at the rate of eight percent (8%) per annum
(calculated daily on the basis of a 360-day year and actual
calendar days elapsed) payable quarterly beginning March 31,
2009.
Both
the Principal Amount and all accrued interest shall be paid in
lawful money of the United States of America to the Lender at
, or at such other address as the Lender may designate by notice in
writing to the Company, in immediately available funds.
If
any payment hereunder falls due on a Saturday, Sunday or legal
holiday, it shall be payable on the next succeeding business day
and such additional time shall be included in the computation of
interest.
This
Note is one of a series of Senior Secured Convertible Notes
(“Senior Notes” or “Notes”) containing
identical terms and conditions issued pursuant to a Securities
Purchase Agreement (“Securities Purchase Agreement”),
dated the date hereof, by and between the Company and the
Investors. This Note is entitled to the benefits of that certain
Security Agreement (“Security Agreement”), dated as of
the date hereof, between the Company and Lender covering certain
collateral (“Collateral”). The issuance of this Note
and the granting of the security interest in the Collateral to the
Lender pursuant to the Security Agreement are intended by the
Company and Lender to be a contemporaneous exchange for new value
given by Lender to the Company in an amount equivalent to the value
given by the Company to Lender. Terms used but not defined herein
shall have their respective meanings assigned in the Securities
Purchase Agreement and/or Security Agreement.
All
obligations under this Note shall be paid pro rata with all other
Senior Notes that may be issued.
The
Security Agreement, the Uniform Commercial Code Financing
Statements to be filed in connection with the Security Agreement
and any and all other documents executed and delivered by the
Company to Lender under which Lender is granted liens on assets of
the Company are collectively referred to as the “Security
Documents.”
(a) The
indebtedness evidenced by the Senior Notes and the payment of the
Principal Amount and interest thereof shall be Senior (as
hereinafter defined) to, and have priority in right of payment
over, all indebtedness of the Company. “Senior” shall
be deemed to mean that, in the event of any default in the payment
of the obligations represented by the Senior Notes or of any
liquidation, insolvency, bankruptcy, reorganization, or similar
proceedings relating to the Company, all sums payable on the Senior
Notes, shall first be paid in full, with interest, if any, before
any payment is made upon any other indebtedness, now outstanding or
hereinafter incurred, and, in any such event, any payment or
distribution of any character which shall be made in respect of any
other indebtedness of the Company, shall be paid over to the
Lenders for application to the payment hereof, unless and until all
obligations under the Senior Notes (which shall mean the Principal
Amount and other obligations arising out of, premium, if any,
accrued interest on, and any costs and expenses payable under, the
Senior Notes) shall have been paid and satisfied in
full.
(b) The
Company may not incur any additional indebtedness senior to or
pari passu with this Note without the prior approval of the
Lenders representing at least fifty percent (50%) of the principal
amount of the Notes then outstanding.
(a)
Conversion . The Principal Amount of this Note together with
all accrued but unpaid interest shall be convertible, in whole or
in part, at any time prior to repayment, at the election of the
Lender, into validly issued, fully paid and non-assessable shares
of Series B Participating Preferred Stock (“Preferred
Stock”), free from all liens, duties and charges arising out
of or by reason of the issue thereof (including, without
limitation, in respect of taxes). The number of shares of Preferred
Stock to be issued upon such conversion shall be equal to the
quotient obtained by dividing (i) the amount to be converted
by (ii) $1,000.00. Any fraction of a share resulting from these
calculations shall be rounded down to the nearest whole
share.
(b)
Mechanics and Effect of Conversion . The Company shall
provide the Lender at least ten (10) business days’
written notice of its intention to prepay the Note so as to allow
the Lender sufficient notice and time to exercise the
Lender’s conversion right if it chooses to do so. To exercise
a Conversion, the Lender shall surrender its Note, duly endorsed,
together with a written conversion notice to the Company at its
principal office. At its expense, the Company will, as soon as
practicable thereafter, issue and deliver to such Lender, at its
address, a certificate or certificates for the number of shares of
Preferred Stock to which such Lender is entitled upon such
conversion. This Note shall be deemed to have been converted
immediately prior to the close of business on the date of giving of
such notice and the Lender shall be treated
2
for
all purposes as the record holder of the Preferred Stock
deliverable upon such conversion as of the close of business on
such date.
(c)
No Impairment . The Company will not, by amendment of its
Amended and Restated Certificate of Incorporation or through any
reorganization, recapitalization, sale or transfer of assets,
consolidation, merger, dissolution, issue or sale of securities or
any other voluntary action, avoid or seek to avoid the observance
or performance of any of the terms to be observed or performed
hereunder by the Company, but will at all times
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