1
EXHIBIT 10.22
THIS NOTE AND THE SHARES ISSUABLE UPON CONVERSION OF THIS NOTE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), OR THE
SECURITIES LAWS OF ANY STATE. THIS NOTE AND SUCH SHARES MAY BE OFFERED OR SOLD
ONLY IF REGISTERED UNDER THE SECURITIES ACT OF 1933 OR ANY APPLICABLE STATE
SECURITIES LAW OR IF AN EXEMPTION FROM REGISTRATION UNDER SUCH LAWS IS
AVAILABLE.
THE RIGHTS, TITLE AND INTERESTS OF ANY HOLDER OF THIS NOTE ARE SUBJECT TO THAT
CERTAIN SUBORDINATION AND INTERCREDITOR AGREEMENT AMONG CONGRESS FINANCIAL
CORPORATION (SOUTHWEST), EXABYTE CORPORATION, AND THE SUBORDINATE LENDERS NAMED
THEREIN, DATED AS OF AUGUST 22, 2001, AS THE SAME MAY BE MODIFIED, AMENDED,
RENEWED, EXTENDED, RESTATED OR REPLACED FROM TIME TO TIME, THE TERMS OF WHICH
ARE HEREBY INCORPORATED HEREIN BY REFERENCE.
EXABYTE CORPORATION
[Each Lender's respective amount]
12% SUBORDINATED SECURED CONVERTIBLE NOTE
Dated: , 2001
FOR VALUE RECEIVED, Exabyte Corporation, a Delaware corporation (the
"Company"), hereby promises to pay to the order of ("Payee"), in the
manner and at the place hereinafter provided, the principal Face Amount of
Dollars ($ ), on or before December 31, 2001 (the "Stated Maturity
Date"), subject to earlier satisfaction as provided in Section 1(c) and
extension as provided in Section 2(a). The Company also promises to pay interest
on the unpaid amount hereof at the rate and in the manner hereinafter provided.
This Note (the "Note") is issued as of , 2001 (the "Original Issue
Date") pursuant to a Loan and Security Agreement, dated August 22, 2001, between
the Company, Payee and the other lenders named therein (the "Loan Agreement").
The Company's obligations evidenced by this Note are secured by the Collateral
(as defined in the Loan Agreement). The Holder of this Note shall be entitled to
the rights and privileges set forth herein and in the Loan Agreement. See
Section 7 of this Note for definitions used herein.
SECTION 1. Interest and Principal.
(a) Payment. The Company shall pay interest ("Interest") on the unpaid
principal Face Amount of this Note from the Original Issue Date at the rate (the
"Interest Rate") equal to 12.0% per annum (computed on the basis of a 360-day
year and the actual number of days elapsed), compounded quarterly. The Interest
Rate shall be subject to adjustment in accordance with Section 1(b) below.
Interest on this Note shall accrue from and after the Original Issue Date and,
except as provided in the immediately succeeding sentence, shall be payable on
the date which the principal of this Note becomes due and payable, whether at
the Stated Maturity Date or by declaration of acceleration, call for redemption,
acceleration pursuant to Section 6 or otherwise (collectively, "Maturity"). If
the Stated Maturity Date of the Note is extended pursuant to Section 2(a) hereof
upon termination of the Merger Agreement, accrued Interest on this Note shall be
payable quarterly on the last day of each March, June, September and December
(commencing at the end of the quarter during which the Merger Agreement was
terminated) and at Maturity. Principal and Interest shall be paid by wire
transfer of immediately available funds to the account designated by the Holder.
All payments hereunder shall be credited first to Interest.
(b) Adjustments. In addition to any other remedies it may have, in the
event that (i) any Event of Default (as defined in the Loan Agreement) shall
have occurred and be continuing or (ii) the Company shall at any time have
defaulted in any of its obligations under the Note, which default shall
constitute an
1
2
Event of Default under Section 5 hereof, then the Interest Rate shall be
increased by an additional 6.0% per annum, from the date such default occurred
until the date such default has been cured. The Interest Rate shall be further
increased by an additional 1.0% per annum for each 90-day period that the Event
of Default continues without cure. An increase in the Interest Rate pursuant to
this paragraph shall not be in lieu of any right or remedy of the Holder
regarding, or constitute a waiver of, any occurrence described in the first
sentence hereof.
(c) Credit Against Series H Purchase Price. On the Closing Date (as
defined in the Merger Agreement), the then outstanding principal amount of this
Note and all accrued and unpaid Interest (including Additional Interest) thereon
shall be credited against Payee's total purchase price for the shares of the
Company's Series H Preferred Stock which Payee is purchasing under the Merger
Agreement. Upon such credit against the purchase price and issuance of the
requisite number of shares of Series H Preferred Stock to Payee therefor,
principal and accrued Interest under this Note shall be deemed paid to the full
amount of such credit.
SECTION 2. Conversion or Extension.
(a) Conversion Events. Subject to the provisions hereinafter set forth,
all of the principal amount of this Note and accrued Interest thereon shall be
convertible at the option of the Holder thereof into fully paid and
nonassessable shares of Common Stock:
(i) for a period of thirty (30) days following any termination by
Ecrix Corporation ("Ecrix") of the Merger Agreement, for any reason other
than the intentional breach of the Merger Agreement by the Company; or
(ii) for a period of thirty (30) days following any termination of the
Merger Agreement by the Company as a result of the intentional breach of
the Merger Agreement by Ecrix.
The events set forth in Sections 2(a)(i) and (ii) are defined as
"Conversion Events." The number of shares of Common Stock to be issued upon
conversion of the Note (the "Conversion Shares") shall be equal to one (1)
share of Common Stock for each $.80 in principal amount of the Note and
accrued Interest thereon being converted (the "Conversion Amount"), subject
to adjustment from time to time pursuant to paragraph (f) of this Section
2. If Holder does not elect to convert the Note into Common Stock as
provided herein within thirty (30) days after the occurrence of a
Conversion Event, then the Stated Maturity Date shall be automatically
extended to August 22, 2002 and the Interest Rate on the Note shall
increase to 15% as of the termination date of the Merger Agreement and
shall continue to increase by an additional 1.0% per annum for each 90-day
period until the Maturity Date. If both (x) the Merger has not been
consummated by December 31, 2001 and (y) the Merger Agreement has not been
terminated on or prior to that date, then the Stated Maturity Date shall be
automatically extended to the earlier to occur of (I) the date the Merger
is consummated or (II) the date the Merger Agreement is terminated.
(b) Procedures. Conversion of this Note may be effected by the Holder upon
the surrender to the Company at the principal office of the Company or at the
office of any agent or agents of the Company, as may be designated by the
Company, of the Note to be converted accompanied by a written notice stating
that such Holder elects to convert the entire Face Amount of such Note in
accordance with the provisions of this Section 2 and specifying the name or
names in which such Holder wishes the certificate or certificates for Common
Stock to be issued. In case such notice shall specify a name or names other than
that of such Holder, such notice shall be accompanied by payment of all transfer
Taxes payable upon the issuance of Common Stock in such name or names and an
opinion of counsel satisfactory to the Company that the transfer of the Note may
be made without registration under the Securities Act or any applicable state
securities laws. Other than such Taxes for transfers to other Persons, the
Company will pay any and all issue and other Taxes (other than Taxes based on
income) that may be payable in respect of any issue or delivery of Common Stock
on conversion of the Note pursuant hereto. As promptly as practicable, after the
surrender of such Note and the receipt of such notice relating thereto and, if
applicable, payment of all transfer Taxes for transfers to other Persons (or the
demonstration to the satisfaction of the Company that
2
3
such Taxes have been paid), the Company shall deliver or cause to be delivered
certificates representing the number of validly issued, fully paid and
nonassessable Common Stock to which the Holder of the Note being converted shall
be entitled as the Conversion Amount. Such conversion shall be deemed to have
been made at the close of business on the date of giving such notice and of such
surrender of the Note to be converted so that the rights of the Holder thereof
as to the amount being converted shall cease except for the right to receive
shares of Common Stock in accordance herewith, and the Person entitled to
receive the Common Stock shall be treated for all purposes as having become the
record holder of such Common Stock at such time. The Company shall not be
required to convert, and no surrender of the Note shall be effective for that
purpose, while the transfer books of the Company for the Common Stock are closed
for any purpose (but not for any period in excess of ten calendar days); but the
surrender of the Note for conversion during any period while such books are so
closed shall become effective for conversion immediately upon the reopening of
such books, as if the conversion had been made on the date such Note was
surrendered, and at the Conversion Ratio in effect on the date of such
surrender.
(c) Fractional Shares. No fractional shares shall be issued upon any
conversion of the Note. In lieu thereof, the Company shall round up any
fractional share of its Common Stock to which the Holder shall be entitled to
receive pursuant to this Note to the next highest whole share.
(d) Reservation of Common Stock. The Company shall at all times reserve
and keep available for issuance upon the conversion of the Note, free from any
preemptive rights, such number of its authorized but unissued shares of Common
Stock as will from time to time be sufficient to permit the conversion of any
portion of the Note remaining outstanding, and shall take all action required to
increase the authorized number of shares of Common Stock if necessary to permit
the conversion of the Note.
(e) Anti-dilution Adjustments. The Conversion Amount will be subject to
adjustment from time to time as follows:
(1) In case the Company shall at any time or from time to time after
the Original Issue Date (A) pay a dividend, or make a distribution, on the
outstanding Common Stock in shares of Common Stock, (B) subdivide the
outstanding Common Stock, (C) combine the outstanding Common Stock into a
smaller number of shares or (D) issue by reclassification of the Common
Stock any shares of Capital Stock of the Company, then, and in each such
case, the Conversion Amount in effect immediately prior to such event or
the record date therefor, whichever is earlier, shall be adjusted so that
the Holder of any Notes thereafter surrendered for conversion shall be
entitled to receive the number of shares of Common Stock or other
securities of the Company which such Holder would have owned or have been
entitled to receive after the happening of any of the events described
above, had such Notes been surrendered for conversion immediately prior to
the happening of such event or the record date therefor, whichever is
earlier. An adjustment made pursuant to this clause (1) shall become
effective (x) in the case of any such dividend or distribution, immediately
after the close of business on the record date for the determination of
holders of Common Stock entitled to receive such dividend or distribution,
or (y) in the case of such subdivision, reclassification or combination,
immediately after the close of business on the day upon which such
corporate action becomes effective.
(2) If at any time, as a result of: (i) a capital reorganization or
reclassification or (ii) a merger or consolidation of the Company with
another corporation (whether or not the Company is the surviving
corporation), the Common Stock issuable upon the conversion of this Note
shall be changed into or exchanged for the same or a different number of
shares of any class or classes of stock of the Company or any other
corporation, or other securities convertible into such shares, then, as a
part of such reorganization, reclassification, merger or consolidation,
appropriate adjustments shall be made in the conversion rights of this
Note, so that: (A) the holder of this Note shall thereafter be entitled to
receive, upon conversion of this Note, the kind and amount of shares of
stock, other securities, money and property which such holder would have
received at the time of such capital reorganization, reclassification,
merger, or consolidation, if this Note had been converted immediately prior
to such capital reorganization, reclassification, merger, or consolidation,
and (B) the conversion rights of this
3
4
Note shall thereafter be adjusted on terms as nearly equivalent as may be
practicable to the adjustments theretofore provided in this Note.
(3) The Conversion Amount shall be proportionally adjusted upon any
transfer, assignment or subdivision permitted hereunder of less than all of
the Face Amount of this Note such that upon the occurrence of any
Conversion Event, the number of fully paid and nonassessable shares of
Common Stock issuable upon the conversion of any resulting note or notes
shall be equal to the Conversion Amount in effect immediately prior to such
transfer, assignment or subdivision multiplied by the ratio that the
principal face amount of such resulting note or notes bears to the Face
Amount.
(4) Anything in this paragraph (e) to the contrary notwithstanding,
the Company shall not be required to give effect to any adjustment in the
Conversion Amount unless and until the net effect of one or more
adjustments (each of which shall be carried forward), determined as above
provided, shall have resulted in a change of the Conversion Amount by at
least one one-hundredth of one share of Common Stock, and when the
cumulative net effect of more than one adjustment so determined shall be to
change the Conversion Amount by a least one one-hundredth of one share of
Common Stock, such change in Conversion Amount shall thereupon be given
effect.
(5) If the Company shall take a record of the holders of its Common
Stock for the purpose of entitling them to receive a dividend or other
distribution, and shall thereafter and before the distribution to
stockholders thereof legally abandon its plan to pay or deliver such
dividend or distribution, then thereafter no adjustment in the number of
shares of Common Stock issuable upon exercise of the right of conversion
granted by this paragraph (e) or in the Conversion Ratio then in effect
shall be required by reason of the taking of such record.
(f) Notice of Certain Events. In case at any time or from time to time the
Company shall pay any dividend or make any other distribution to the holders of
its Common Stock, or shall offer for subscription pro rata to the holders of its
Common Stock any additional shares of stock of any class or any other right, or
there shall be any capital reorganization or reclassification of the Common
Stock of the Company or merger of the Company with or into another corporation,
or any sale or conveyance to another corporation of the property of the Company
as an entirety or substantially as an entirety, or there shall be contemplated
or proposed by the Company or its Board of Directors, or there shall be a
voluntary or involuntary dissolution, liquidation or winding up of the Company,
then, in any one or more of said cases the Company shall give at least twenty
days prior written notice (five days after the date of mailing of such notice
shall be deemed to be the time of giving thereof) to the registered Holder of
the Note at the address(es) as shown on the books of the Company as of the date
on which (i) the books of the Company shall close or a record shall be taken for
such stock dividend, distribution or subscription rights (ii) such
reorganization, reclassification, merger, sale or conveyance, dissolution,
liquidation or winding up shall take place, as the case may be. Such notice
shall also specify the date as of which the holders of the Common Stock of
record shall participate in said dividend, distribution or subscription rights
or shall be entitled to exchange their Common Stock for securities or other
property deliverable upon such reorganization, reclassification, merger, sale or
conveyance or participate in such dissolution, liquidation or winding up, as the
case may be, or the latest date on which the Holder of the Note may elect to
convert this Note into Common Stock pursuant to the provisions of this Section
2.
(g) Notice of Adjustments. Upon any adjustment of the Conversion Amount
then in effect and any increase or decrease in the number of shares of Common
Stock issuable upon the operation of the conversion provisions set forth in
Section 2 hereof, then, and in each such case, the Company shall promptly
deliver to the transfer agent of the Common Stock, if any, a certificate signed
by the President and by the Treasurer or an Assistant Treasurer or the Secretary
or an Assistant Secretary of the Company setting forth in reasonable detail the
event requiring the adjustment and the method by which such adjustment was
calculated and specifying the Conversion Amount then in effect following such
adjustment and the increased or decreased number of shares issuable upon the
conversion set forth in Section 2 hereof. The Company shall also promptly after
the making of such adjustment give written notice to the registered Holders of
the Notes at the address of each Holder as shown on the books of the Company,
4
5
which notice shall state the Conversion Amount then in effect, as adjusted, and
the increased or decreased number of shares issuable upon the exercise of the
right of conversion granted by Section 2 hereof, and shall set forth in
reasonable detail the method of calculation of each and a brief statement of the
facts requiring such adjustment. Where appropriate, such notice to Holders of
the Notes may be given in advance and included as part of the notice required
under the provisions of Section 2(f) hereof.
(h) Further Actions. The Company will not, through any reorganization,
transfer of assets, consolidation, merger, dissolution, issue or sale of
securities or any other action, avoid or seek to avoid or fail to observe or
perform any of the terms to be observed or performed hereunder by the Company,
but will at all times in good faith assist in the carrying out of all the
provisions of this Section 2 and in the taking of all such action as may be
necessary or appropriate in order to protect the conversion rights of the Holder
of the Note against impairment.
SECTION 3. Seniority; Subordination.
(a) Senior Debt. Anything in this Note to the contrary notwithstanding,
the Company covenants and agrees, and Payee and, by its acceptance of this Note,
any subsequent Holder of this Note likewise covenants and agrees, that the
indebtedness evidenced by this Note and the payment of the Face Amount of and
Interest (including any Additional Interest) on, and other obligations in
respect of, this Note, shall rank subordinate to the Senior Indebtedness.
(b) Rights of Payee. Nothing in this Note is intended to or shall impair,
as between the Company and Payee or any subsequent Holder, the obligation of the
Company, which is unconditional and absolute, to pay to Payee or such subsequent
Holder the principal of (and premium, if any) and Interest (including any
Additional Interest) on this Note as and when the same shall become due in
accordance with its terms, or is intended to or shall affect the relative rights
against the Company of Payee or such subsequent Holder and creditors of the
Company. The failure to make a payment on account of this Note by reason of any
provision of this Section 3 shall not be construed as preventing the occurrence
of an Event of Default, nor shall anything herein prevent Payee or any
subsequent Holder from exercising all remedies otherwise permitted by applicable
law upon default under this Note.
(c) Subordination. This Note shall be subject to the subordination
provisions set forth in that certain Subordination and Intercreditor Agreement
dated as of August 22, 2001 among Congress Financial Corporation, the Company,
Payee and the other holders of Notes named therein.
SECTION 4. Covenants.
(a) Payment. The Company shall duly and punctually pay the Face Amount of
(and premium, if any), and Interest (including any Additional Interest) on, this
Note in accordance with its terms.
(b) Stay, Extension and Usury Laws. The Company covenants (to the extent
that it may lawfully do so) that it shall not at any time insist upon, plead, or
in any manner whatsoever claim or take the benefit or advantage of, any stay,
extension or usury law or other laws which would prohibit or forgive the Company
from paying all or any portion of the principal of or Interest (including any
Additional Interest) on the Note as contemplated herein, wherever enacted, now
or at any time hereafter in force, or which may affect the covenants or the
performance of the Note.
(c) Maintenance of Office or Agency. The Company shall maintain in
Boulder, Colorado an office or agency where Notes may be presented or
surrendered for payment, where Notes may be surrendered for registration of
transfer or exchange, where Notes may be surrendered for conversion and where
notices and demands to or upon the Company in respect of the Notes may be
served. The Company shall give prompt written notice to the Holder of the
location, and any change in the location, of such office or agency. The Company
may also from time to time designate one or more other offices or agencies (in
or outside Boulder, Colorado) where the Notes may be presented or surrendered
for any or all such purposes and may from time to time rescind such
designations; provided, however, that no such designation or rescission shall in
any manner relieve the Company of its obligation to maintain an office or agency
in the United
5
6
States for such purposes. The Company shall give prompt written notice to the
Holder of any such designation or rescission and of any change in the location
of any such other office or agency.
(d) Covenants Contained in Loan Agreement. Reference is hereby made to the
Loan Agreement for additional terms, conditions, covenants and agreements of the
Company with respect to the loan evidenced by this Note.
SECTION 5. Default and Remedies. Upon the occurrence of an Event of
Default (as defined in the Loan Agreement), the Holder may, by notice to the
Company, declare all unpaid principal of and accrued Interest (including any
Additional Interest) to the date of acceleration on the Note then outstanding
(if not then due and payable) to be due and payable in the manner, and upon the
conditions and with the effect provided in the Loan Agreement.
SECTION 6. Acceleration of Maturity. Upon (a) termination by the Company
of the Merger Agreement for any reason (other than the intentional breach by
Ecrix of the Merger Agreement) or (b) the termination of the Merger Agreement by
Ecrix due to the Company's intentional breach of the Merger Agreement, then, in
each case, the principal and accrued Interest (including any Additional
Interest) of the Note shall be immediately due and payable, without any further
action on the part of the Company or the Holder, in the manner provided in this
Note.
SECTION 7. Definitions.
For the purposes of this Note, the following terms shall have the meanings
indicated:
"Additional Interest" shall mean additional Interest, if any, payable
pursuant to Sections 1(b) or 2(a) of this Note.
"Business Day" means any day other than Saturday, Sunday or a day on
which banking institutions in the State of Colorado are authorized or
obligated by law or executive order to close.
"Capital Stock" shall mean, in the case of the Company, any and all
shares (however designated) of the capital stock of the Company now or
hereafter outstanding.
"Common Stock" means the Company's common stock, par value $0.001 per
share.
"Congress Financial Corporation" means Congress Financial Corporation
(Southwest), a Texas corporation.
"Congress Loan Agreement" means that certain Loan and Security
Agreement by and between Congress Financial Corporation (Southwest) and the
Company dated May 16, 2000, as amended to the date of the Loan Agreement
and as may hereafter be amended, modified, supplemented, extended, renewed,
restated or replaced.
"Dollars" or "$" shall mean United States dollars.
"Event of Default" means any of the events set forth or referenced in
Section 6 of the Loan Agreement.
"Face Amount" for each Note shall mean the principal amount at the
Stated Maturity Date of such Note as indicated on the face of such Note.
"GAAP" shall mean U.S. generally accepted accounting principles,
consistently applied.
"Holder" shall mean, at any time of reference, a Person in whose name
the Note is registered on the books of the Company at such time or the
Person holding Conversion Shares following conversion of a Note.
"Merger" means a merger of Ecrix and Exabyte Acquisition, Inc.
pursuant to the Merger Agreement.
6
7
"Merger Agreement" means the Agreement and Plan of Merger dated as of
August 22, 2001, by and among the Company, Ecrix, Exabyte Acquisition, Inc,
certain lenders and certain investors signatory thereto, as hereafter
amended, modified, supplemented, extended, renewed or restated.
"Outstanding" or "outstanding" shall mean, when used with reference to
the Notes at a particular time, all, except (i) Notes theretofore reported
as lost, stolen, damaged or destroyed, or surrendered for transfer,
exchange or replacement, in respect to which replacement Notes have been
issued, (ii) Notes theretofore paid in full, and (iii) Notes theretofore
canceled by the Company.
"Person" shall mean any individual, firm, corporation, limited
liability company, partnership, company or other entity, and shall include
any successor (by merger or otherwise) of such entity.
"Securities Act" shall mean the Securities Act of 1933, as amended, or
any successor federal statute, and the rules and regulations of the SEC
thereunder, all as the same shall be in effect at the time. Reference to a
particular section of the Securities Act of 1933, as amended, shall include
reference to the comparable section, if any, of any such successor federal
statute.
"Senior Indebtedness" shall mean any Indebtedness of the Company
existing under the Congress Loan Agreement.
"Subsidiary" means, with respect to any Person, (i) a corporation a
majority of whose Capital Stock with voting power, under ordinary
circumstances, to elect directors is at the time, directly or indirectly,
owned by such Person, by one or more Subsidiaries of such Person or by such
Person and one or more Subsidiaries thereof, (ii) any other Person (other
than a corporation), including, without limitation, a joint venture, in
which such Person, one or more Subsidiaries thereof or such Person and one
or more Subsidiaries thereof, directly or indirectly, at the date of
determination thereof, has at least majority ownership interest entitled to
vote in the election of directors, managers or trustees thereof (or other
Persons performing similar functions), (iii) the management of which is
otherwise controlled, directly or indirectly, by such Person or (iv) any
other Person required to be consolidated with such Person in accordance
with GAAP. For purposes of this definition (and for the determination of
whether or not a Subsidiary is a wholly owned Subsidiary of a Person), any
directors' qualifying shares or investment by foreign nationals mandated by
applicable law shall be disregarded in determining the ownership of a
Subsidiary.
"Tax" and "Taxes" shall mean any federal, state, local or foreign
income, gross receipts, property, sales, use, value added, license, excise,
franchise, capital, net worth, estimated, withholding, employment, payroll,
premium, withholding, alternative or added minimum, ad valorem, inventory,
asset, gains, transfer or excise tax, or any other tax, levy, custom, duty,
impost, governmental fee or other like assessment or charge of any kind
whatsoever, together with any interest, penalty or additions to tax,
imposed by any governmental entity and, including, without limitation, any
Taxes of another Person owing under a contract, as transferee or successor,
under Treas. Reg. sec. 1.1502-6 or analogous state, local or foreign law,
or otherwise.
7
8
"Transaction Documents" shall mean this Note and the Merger Agreement,
the Loan Agreement and any other document or agreement entered into or
delivered in connection with the transactions contemplated by the Loan
Agreement.
<Table>
<Caption>
OTHER DEFINITIONS DEFINED IN SECTION
----------------- ------------------
"Company"........................................... Preamble
"Conversion Amount"................................. 2(a)
"Conversion Event".................................. 2(d)
"Ecrix"............................................. 2(a)
"Interest Rate"..................................... 1(a)
"Maturity".......................................... 1(a)
"Note".............................................. Preamble
"Original Issue Date"............................... Preamble
"Payee"............................................. Preamble
"Stated Maturity Date".............................. Preamble
</Table>
SECTION 8. Transfer. Except for assignments to Ecrix, to any other Lender
(as defined in the Loan Agreement) or to any affiliate, partner or shareholder
of the Holder or an immediate family member (or a trust created for the benefit
of an immediate family member) of the Holder, the Holder may not assign its
rights in, to or under all or any portion of the Note without the prior written
consent of the Company, which consent shall not be unreasonably withheld.
SECTION 9. Amendments, Supplements and Waivers. The Company and the Holder
may not amend, modify or supplement the Note, nor may any provision of the Note
be waived, except by an instrument in writing referring to this Note and signed
by the Company and the Holder.
SECTION 10. Miscellaneous.
(a) Governing Law. THIS NOTE SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF COLORADO, WITHOUT GIVING EFFECT TO ANY
CHOICE OR CONFLICT OF LAW PROVISION OR RULE.
(b) Successors and Assigns. All covenants and agreements contained herein
shall bind and inure to the benefit of the Holder of this Note and its
respective successors and permitted assigns.
(c) Severability. If any term, provision, covenant or restriction of this
Note is held by a court of competent jurisdiction to be invalid, void or
unenforceable, the remainder of the terms, provisions, covenants and
restrictions of this Note shall remain in full force and effect and shall in no
way be affected, impaired or invalidated. It is hereby stipulated and declared
to be the intention of the parties that they would have executed the remaining
terms, provisions, covenants and restrictions without including any of such
which may be hereafter declared invalid, void or unenforceable.
(d) Lost, Destroyed or Wrongfully Taken Notes. If a mutilated Note is
surrendered to the Company or if the Holder of a Note claims that such Note has
been lost, destroyed or wrongfully taken, then, in the absence of notice to the
Company that such Note has been acquired by a bona fide purchaser, the Company
shall issue a replacement Note to the original Holder of such mutilated, lost,
destroyed or wrongfully taken Note. If requested by the Company, as a condition
to the issue of a replacement Note, such Holder shall furnish an indemnity bond
sufficient in the reasonable judgment of the Company to protect the Company from
any loss which it may suffer if a Note is replaced. Every replacement Note is an
additional obligation of the Company. If a Note is replaced as provided above,
it ceases to be outstanding unless the Company receives proof satisfactory to it
that the replaced Note is held by a bona fide purchaser.
(e) Persons Deemed Owners. The registered Holder of a Note on the books of
the Company may be treated as the owner of it for all purposes.
8
9
(f) Notices. All notices, consents, requests, instructions, approvals,
financial statements, reports and other communications provided for herein shall
be deemed given, if in writing and delivered personally, by telecopy or sent by
registered mail, postage prepaid, if to:
If to the Company:
Exabyte Corporation
1685 38th St.
Boulder, CO 80301
Telephone: (303) 417-7453
Facsimile: (303) 417-7900
Attention: Stephen F. Smith
With a copy to:
Holland & Hart, L.L.P.
555 17th St., Suite 3200
Denver, CO 80201
Telephone: (303) 295-8000
Facsimile: (303) 295-8261
Attention: Mark R. Levy
If to the Holder:
--------------------------------------------------
--------------------------------------------------
--------------------------------------------------
Telephone:
-------------------------------------
Facsimile: [ ]
Attention:
------------------------------------
With copies to:
or to such other address or telecopy number as either the Company or the Holder
may, from time to time, designate in a written notice given in a like manner.
(g) Further Assurances. At any time or from time to time upon the request
of the Holder, the Company shall execute and deliver such further documents and
do such other acts and things as the Holder may reasonably request in order to
effect fully the purposes of the Note, and to provide for payment of the loans
evidenced hereunder with interest thereon in accordance with the terms of the
Note.
(h) Headings; Construction. The headings herein are for convenience only,
do not constitute a part of this Note, and shall not be deemed to limit or
affect any of the provisions hereof. All words used in this Note will be
construed to be of such gender or number as the circumstances require.
(i) Specific Enforcement. The Holder and the Company acknowledge and agree
that irreparable damage would occur in the event that any of the provisions of
this Note were not performed in accordance with their specific terms or were
otherwise breached. It is accordingly agreed that the Holder shall be entitled
to an injunction to prevent breaches of the provisions of this Note and to
enforce specifically the terms and provisions hereof in any court of the United
States or any state thereof having jurisdiction, this being in addition to any
other remedy to which the Holder may be entitled at law or equity.
(j) Expenses. The Company agrees to pay to the Holder all out-of-pocket
costs and expenses incurred by such Holder relating to any future amendment or
supplement to the Note (or any proposal by
9
10
the Company for such amendment or supplement) whether or not consummated or any
waiver or consent with respect thereto (or any proposal for such waiver or
consent) whether or not consummated, and all out-of-pocket costs and expenses of
such Holder relating to the enforcement of any of the Transaction Documents.
(k) Payment. The Company shall make all payments under this Note on the
date due. Any payment of this Note that is due on a date other than a Business
Day shall be made on the next succeeding Business Day. If the date for payment
is extended to the next succeeding Business Day by reason of the preceding
sentence, the period of such extension will be included in the computation of
the Interest (including any Additional Interest) payable on such next succeeding
Business Day.
IN WITNESS WHEREOF, the Company has caused this Note to be duly executed
and delivered as of the date written above.
EXABYTE CORPORATION
By:
-------------------------------------
Name:
Title:
10