Contract
Exhibit 4.1
THIS
NOTE AND THE SECURITIES ISSUABLE UPON CONVERSION HEREOF HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR APPLICABLE STATE SECURITIES
LAWS. THE SECURITIES HAVE BEEN ACQUIRED FOR INVESTMENT AND MAY NOT BE OFFERED
FOR SALE, SOLD, TRANSFERRED OR ASSIGNED IN THE ABSENCE OF AN EFFECTIVE
REGISTRATION STATEMENT FOR THE SECURITIES UNDER THE SECURITIES ACT OF 1933, AS
AMENDED, OR APPLICABLE STATE SECURITIES LAWS, OR AN OPINION OF COUNSEL, IN A
FORM ACCEPTABLE TO THE COMPANY, THAT REGISTRATION IS NOT REQUIRED UNDER SAID ACT
OR APPLICABLE STATE SECURITIES LAWS OR UNLESS SOLD PURSUANT TO RULE 144 UNDER
SAID ACT.
LINK
RESOURCES, INC.
8% SENIOR
CONVERTIBLE PROMISSORY NOTE
US
$ _________
|
________,
2010
|
FOR VALUE RECEIVED, Link
Resources, Inc., a Nevada corporation (the “Company”), promises to pay to
[ ] (the
“Holder”), the principal
sum of ___________________ DOLLARS ($_________) (the “Principal”) in lawful money of
the United States of America, with interest payable thereon at the rate of eight percent (8%)
per annum. The principal amount hereof and all accrued but unpaid
interest thereon shall be paid in full to the Holder on the two (2) year
anniversary of the date of closing of the Minimum Amount (the “Maturity Date”).
Capitalized
terms used herein but not defined herein shall have the meaning ascribed to it
in that certain Securities Purchase Agreement, dated of even date herewith (the
“SPA”), pursuant to
which the Holder is acquiring this Note.
The
following is a statement of the rights of the Holder of this Note and the terms
and conditions to which this Note is subject, and to which the Holder, by
acceptance of this Note, agrees:
1. Series. This
Note is one of a series of Notes of the Company in the aggregate principal
amount of a minimum of Nine Million Three Hundred Thousand Dollars ($9,300,000)
and up to a maximum of Twelve Million Dollars ($12,000,000.00) (collectively, the “Notes”) as described in
that certain Confidential Private Placement Memorandum, dated December
10, 2009, delivered to the Holder in connection with the transactions
contemplated by the SPA (the “Memorandum”).
2. Principal
Repayment. The outstanding principal amount of this Note shall
be payable on the Maturity Date, unless this Note has been earlier converted as described
below.
3. Interest.
(a) Computation. Interest
(the “Interest”) shall
accrue on the unpaid principal amount of this Note from the date hereof until
such principal amount is repaid in full at the rate of eight percent (8%) per
annum, payable quarterly in arrears on the last day of each fiscal quarter of the
Company (i.e., March 31, June 30, September 30 and December 31)
commencing January 1, 2010. For
purposes of clarity, the initial interest
payment shall consist of accrued interest from the date of issuance of the Note
through December 31, 2009. Thereafter, interest payments of accrued
interest shall be due and payable on the last day of each fiscal quarter until
the Maturity Date, subject to earlier conversion or redemption of the
Note. All
computations of the interest rate hereunder shall be made on the basis of a
360-day year of twelve 30-day months. In the event that any
interest rate provided for herein shall be determined to be unlawful, such
interest rate shall be computed at the highest rate permitted by applicable
law. Any payment by the Company of any interest amount in excess of
that permitted by law shall be considered a mistake, with the excess being
applied to the principal of this Note without prepayment premium or
penalty.
(b) Closing Escrow
Holdback. Pursuant to the SPA, $186,000 (if the Minimum Amount
is raised) or up to $240,000 (if the Maximum Amount is raised) (the “Total Holdback Amount”),
constituting an amount sufficient to satisfy one quarterly payment of Interest
due on the aggregate principal amount of all Notes, shall be retained by the
Escrow Agent and paid to the holders of the Notes and otherwise administered in
accordance with the certain Closing Escrow Agreement. At such time as
75% of all Shares underlying the Notes have been issued upon conversion of
Notes, if the Company is not in breach of any of the Transaction Documents, all
remaining funds of the Total Holdback Amount, if any, shall be disbursed to the
Company in accordance with the Closing Escrow Agreement.
4. Ranking. Except
for the indebtedness of the Company and its Subsidiaries in existence on the
date hereof as described in the Memorandum (including the financial statements
that form a part thereof), and subject to the terms and conditions of this Note
and the other Transaction Documents, the obligations of the Company under this
Note shall rank senior with respect to all existing indebtedness of the Company as of the date hereof and to any and all indebtedness
incurred hereafter. The term “indebtedness” as used in this Section 4, refers to all unsecured
debts and obligations of the Company, including trade payables.
5. Conversion.
(a) Generally. Each
holder of the Notes shall have the right, exercisable at any time prior to the
Maturity Date, to convert all, but not less than all, of the principal amount
then outstanding, plus all accrued but unpaid interest thereon, into shares of
the Company’s common stock, par value
$0.001 per share (the “Common Stock) at a conversion
price (the “Conversion
Price”) equal to $2.00 per share (the Common Stock underlying the Notes
being referred to herein as the “Shares”).
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(b) Mechanics of
Conversion. The conversion of this Note shall be conducted in
the following manner: upon any conversion of all but not less than all of the
outstanding principal amount of this Note, plus
all accrued but unpaid interest thereon: (i) the Holder shall deliver a completed and executed Notice of Conversion
attached hereto as Exhibit A and surrender and deliver this Note, duly
endorsed, to the Company’s office or such other address which the Company shall
designate against delivery of the certificates presenting the Shares to be
delivered; (ii) in exchange for the surrendered Note, the Company shall prepare and deliver irrevocable instructions
addressed to the Company’s transfer and exchange agent, as applicable, to issue
such required number of Shares as set forth in the
Conversion Notice which Shares shall be delivered to the Holder within five (5)
Business Days of the delivery of the documentation to the Company; and (iii) upon delivery of the Shares, this
Note shall become fully paid and satisfied. The Company shall, upon
the written request of the Holder, use its best efforts to deliver, or cause to
be delivered, the Shares hereunder electronically through the Depository Trust
and Clearing Corporation or another established clearing corporation performing
similar functions, if available; provided, that, the Company
may, but will not be required to, change its transfer agent if its current
transfer agent cannot deliver the Shares electronically through the Depository
Trust and Clearing Corporation.
(c) Adjustments to Conversion
Price.
(i) Adjustments for Stock Splits
and Combinations and Stock Dividends. If the Company
shall at any time or from time to time after the date hereof, effect a stock
split or combination of the outstanding Common Stock or pay a stock dividend in
shares of Common Stock, then the Conversion Price shall be proportionately
adjusted. Any adjustments under this Section 5(c)(i) shall be effective at the
close of business on the date the stock split or combination becomes effective
or the date of payment of the stock dividend, as applicable.
(ii) Merger Sale,
Reclassification, etc. In case of any (A)
consolidation or merger (including a merger in which the Company is the
surviving entity), (B) sale or other disposition of all or substantially all of
the Company’s assets or distribution of property to shareholders (other than
distributions payable out of earnings or retained earnings), or
reclassification, change or conversion of the outstanding securities of the
Company or of any reorganization of the Company (or any other corporation the
stock or securities of which are at the time receivable upon the conversion of
this Note) or any similar corporate reorganization on or after the date hereof,
then and in each such case the Holder of this Note, upon the conversion hereof
at any time thereafter shall be entitled to receive, in lieu of the stock or
other securities and property receivable upon the conversion hereof prior to
such consolidation, merger, sale or other disposition, reclassification, change,
conversion or reorganization, the stock or other securities or property to which
such Holder would have been entitled upon such consummation if such Holder had
converted this Note immediately prior thereto.
(iii) Adjustments for Issuance of
Additional Shares of Common Stock.
(A) In
the event the Company, shall, at any time, from time to time, issue or sell any
additional shares of Common Stock (other than pursuant to Common Stock
Equivalents (hereafter defined) granted or issued prior to the issuance date of
this Note) (“Additional Shares
of Common Stock”), at a price per share less than the Conversion Price
then in effect or without consideration, then the Conversion Price upon each
such issuance shall be adjusted to that price (rounded to the nearest cent)
determined by multiplying the Conversion Price then in effect by a
fraction:
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(1) the
numerator of which shall be equal to the sum of (x) the number of shares of
Common Stock outstanding immediately prior to the issuance of such Additional
Shares of Common Stock plus (y) the number
of shares of Common Stock (rounded to the nearest whole share) which the
aggregate consideration for the total number of such Additional Shares of Common
Stock so issued would purchase at a price per share equal to the Conversion
Price then in effect, and
(2) the
denominator of which shall be equal to the number of shares of Common Stock
outstanding immediately after the issuance of such Additional Shares of Common
Stock.
(B) The
provisions of paragraph (A) of Section 5(iii) shall not apply to any issuance of
Additional Shares of Common Stock for which an adjustment is provided elsewhere
in this Section 5). No adjustment of the number of Shares for which
this Note shall be convertible shall be made under this clause (iii) upon the
issuance of any Additional Shares of Common Stock which are issued pursuant to
the exercise of any Common Stock Equivalents, if any such adjustment shall
previously have been made upon the issuance of such Common Stock Equivalents
pursuant to the other provisions of this Section 5.
(C) Issuance of Common Stock
Equivalents. The provisions of this Section 5(iii) shall apply
if (a) the Company, at any time after the issuance date of this Note, shall
issue any securities convertible into or exchangeable for, directly or
indirectly, Common Stock (“Convertible Securities”),
other than the Convertible Notes, or (b) any rights or warrants or options to
purchase any such Common Stock or Convertible Securities (collectively, the
“Common Stock
Equivalents”) shall be issued or sold. If the price per share
for which Additional Shares of Common Stock may be issuable pursuant to any such
Common Stock Equivalent shall be less than the applicable Conversion Price then
in effect, or if, after any such issuance of Common Stock Equivalents, the price
per share for which Additional Shares of Common Stock may be issuable thereafter
is amended or adjusted, and such price as so amended shall be less than the
applicable Conversion Price in effect at the time of such amendment or
adjustment, then the applicable Conversion Price upon each such issuance or
amendment shall be adjusted as provided in the first sentence of subsection
(iii)(A) of this Section 5. No adjustment shall be made to the
Conversion Price upon the issuance of Common Stock pursuant to the exercise,
conversion or exchange of any Convertible Security or Common Stock Equivalent
where an adjustment to the Conversion Price was made as a result of the issuance
or purchase of any Convertible Security or Common Stock
Equivalent.
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(D) Certain Issues
Excepted. Anything herein to the contrary notwithstanding, the
Company shall not be required to make any adjustment to the Conversion Price
under this Section 5 in connection with securities of the Company issued: (i) in
connection with a merger, acquisition or consolidation, (ii) in connection with
bona fide joint venture, strategic license or similar business partnering
arrangements (provided that the transaction or arrangement is not primarily for
the purpose of raising capital from Person whose primary business is investing
in securities), (iii) upon exercise of the Warrants issued together with the
Notes; (iv) upon exercise any warrants issued to the placement agents and its
designees for the transactions contemplated hereby; and (v) in connection with
any share split, share dividend, recapitalization or similar transaction by the
Company for which adjustment is made pursuant to this Section 5.
(E) Floor
Price. Notwithstanding any provision of this Note to the
contrary, no adjustment pursuant to Section 5(c)(iii) shall cause the Conversion
Price to be less than $1.00, as adjusted for any stock dividend, stock split,
stock combination, reclassification or similar transaction.
(e) Elimination of Fractional
Interests. No fractional shares of Common Stock shall be
issued upon conversion of this Note, nor shall the Company be required to pay
cash in lieu of fractional interests, it being the intent of the parties that
all fractional interests shall be eliminated and that all issuances of Common
Stock shall be rounded up to the nearest
whole share.
6. Events of
Default. In the event that any of the following (each, an
“Event of Default”)
shall occur:
(a) Non-Payment. The
Company shall default in the payment of the principal of, or accrued interest
on, this Note as and when the same shall become due and payable, whether by
acceleration or otherwise; or
(b) Default in
Covenants. The Company shall default in any material manner in
the observance or performance of the affirmative or negative covenants or
agreements set forth in the SPA, this Note or that certain Registration Rights
Agreement, dated of even date herewith, between the Holder and the Company
(collectively, the “Transaction Documents”); or
(c) Breach of Representations
and Warranties. The Company
materially breaches any representation
or warranty contained in the Transaction Documents; or
(d) Exchange Act or Exchange
Requirements. Any termination of registration or suspension of
the Company’s reporting obligations under the Exchange Act or suspension from
trading on the OTCBB (or any exchange on which the Common Stock is traded or
listed for quotation (it being agreed that the delisting of the Common Stock
from any national exchange shall not be an Event of Default if the Common Stock
is, within ten (10) Business Days of the effective date of such delisting,
quoted on the OTCBB), or the Company’s failure to file reports with the SEC on a
timely basis as required by the Exchange Act; or
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(e) Judgments. Any final, non-appealable judgment, decree or order for
the payment of money is entered against any of the Company or the Company’s
subsidiaries in an amount equal to $5,000,000 or more
and the same remains unsatisfied or
unbonded for more than thirty (30) days; or
(f) Nationalization. The
confiscation, expropriation or nationalization by any governmental authority to
which the Company or a Subsidiary is subject of any material property or assets
of the Company or its Subsidiaries, taken as a whole (it being agreed, however,
that it shall not be an Event of Default if the PRC government or any local
instrumentality thereof shall require that Bohai or its Affiliates move its
principal venue of operations to a different location within the PRC (a “Principal Venue Move”);
or
(g) Illegality of
Notes. Any court of competent
jurisdiction issues an order declaring the Notes or any provision thereunder to
be illegal; or
(h) Cross
Default. There occurs with
respect to any agreement, indenture or instrument under which the Company has
Indebtedness of $5,000,000 or more in
the aggregate: (i) a default with respect to any payment obligation
thereunder that then entitles the holder thereof to declare such Indebtedness to
be due and payable prior to its stated maturity, or (ii) any other
default thereunder that entitles, and has caused, the holder thereof to declare
such indebtedness to be due and payable prior to its stated maturity;
or
(i) Bankruptcy. The
Company shall: (i) admit in writing its inability to pay its debts as they
become due; (ii) apply for, consent to, or acquiesce in, the appointment of a
trustee, receiver, sequestrator or other custodian for the Company or any of its
property, or make a general assignment for the benefit of creditors; (iii) in
the absence of such application, consent or acquiesce in, permit or suffer to
exist the appointment of a trustee, receiver, sequestrator or other custodian
for the Company or for any part of its property; or (iv) permit or suffer to
exist the commencement of any bankruptcy, reorganization, debt arrangement or
other case or proceeding under any bankruptcy or insolvency law, or any
dissolution, winding up or liquidation proceeding, in respect of the Company,
and, if such case or proceeding is not commenced by the Company or converted to
a voluntary case, such case or proceeding shall be consented to or acquiesced in
by the Company or shall result in the entry of an order for relief;
then, and
so long as such Event of Default is continuing for
a period of two (2) Business Days
in the case of non-payment under Section
6(a), a period of five (5) Business Days in
the case of a cross-default under 6(h), or
for a period of thirty (30) calendar days in the case of events under Sections 6(b) through 6(g) (and the event which would constitute such
Event of Default, if curable, has not been cured), by written notice to the
Company from the Investor Representative, all obligations of the Company under
this Note shall be immediately due and payable without presentment, demand,
protest or any other action nor obligation of the Holder of any kind, all of
which are hereby expressly waived, and Holder may exercise any other remedies
the Holder may have at law or in equity. If an Event of Default
specified in Section 6(i) above occurs, the principal of, and accrued interest
on, all the Notes shall automatically, and without any declaration or other
action on the part of any Holder, become immediately due and
payable.
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In
addition, upon an Event of Default, and provided this Note is still outstanding,
the Holder (through the Investor Representative) shall have the rights to
receive its pro rata portion of 1,000,000 shares of Common Stock being held in
escrow pursuant to the terms and conditions of that certain Securities Escrow
Agreement between Glory Period Limited, the Investor Representative and Escrow,
LLC, as escrow agent..
7. Affirmative Covenants of the
Company. The Company hereby agrees that, so long as the Note
remains outstanding and unpaid, or any other amount is owing to the Holder
hereunder, the Company will:
(a) Corporate Existence and
Qualification. Take the necessary steps to preserve its
corporate existence and its right to conduct business in all states in which the
nature of its business requires qualification to do business;
(b) Books of
Account. Keep its books of account in accordance with good
accounting practices;
(c) Insurance. Maintain
insurance with responsible and reputable insurance companies or associations, as
determined by the Company in its sole but reasonable discretion, in such amounts
and covering such risks as is usually carried by companies engaged in similar
businesses and owning similar properties in the same general areas in which the
Company operates;
(d) Compliance with
Law. Comply with the charter and bylaws or other
organizational or governing documents of the Company, and any law, treaty, rule
or regulation, or determination of an arbitrator or a court or other
governmental authority, in each case applicable to or binding upon the Company
or any of its property or to which each the Company or any of its property is
subject;
(e) Taxes. Duly
pay and discharge all taxes or other claims, which might become a lien upon any
of its property except to the extent that any thereof are being in good faith
appropriately contested with adequate reserves provided therefore;
(f) Reservation of
Shares. At all times have authorized, and reserved for the
purpose of issuance, a sufficient number of shares of Common Stock and issuable
upon conversion of this Note to provide for the issuance of all of the Shares. Prior to complete
conversion of this Note, the Company shall not reduce the number of shares of
Common Stock reserved for issuance hereunder without the written consent of the
Holder except for a reduction proportionate to a reverse stock split effected
for a business purpose other than affecting the requirements of this Section,
which reverse stock split affects all shares of Common Stock equally;
and
(g) Use of
Proceeds. Use the proceeds of the Notes for the purposes
described in the Memorandum.
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(h) Notice of Known Events of
Default. The Company shall furnish to the Investor
Representative a notice of any occurrence of an Event of Default, and what
action the Company is taking or proposes to take with respect thereto, promptly
after such Event of Default becomes known to the Company.
(i) Further
Assurances. The Company shall execute and deliver any and all
such further documents and take any and all such other actions as may be
reasonably necessary or appropriate to carry out the intent and purposes of this
Note and to consummate the transactions contemplated herein.
8. Negative Covenants of the
Company. Except for the transactions completed by the Share
Exchange Agreement and all related documents between and among the Company and
its Subsidiaries, and except as disclosed in the Memorandum, the Company hereby
agrees that, so long as this Note remains outstanding and unpaid it will not,
nor will it permit any of its Subsidiaries, without the consent of the Investor
Representative, to:
(a) Indebtedness for Borrowed
Money. Except as set forth on Schedule 8(a) hereto,
incur, or permit to exist, any Indebtedness (as defined below) for borrowed
money in excess of (i) US$10,000,000 during the twelve (12) month period
beginning on the date hereof, or (ii) US$15,000,000 during period beginning on
the date hereof and ending on the Maturity Date, except in the ordinary course
of the Company’s business. For purposes of this Section 8(a), “Indebtedness” shall mean: (i)
all obligations of the Company for borrowed money or with respect to deposits or
advances of any kind, (ii) all obligations of the Company evidenced by bonds,
debentures, notes or other similar instruments, (iii) all obligations of the
Company for the deferred purchase price of property or services, except current
accounts payable arising in the ordinary course of business and not overdue
beyond such period as is commercially reasonable for the Company’s business,
(iv) all obligations of the Company under conditional sale or other title
retention agreements relating to property purchased by the Company, (v) all
payment obligations of the Company with respect to interest rate or currency
protection agreements, (vi) all obligations of the Company as an account party
under any letter of credit or in respect of bankers’ acceptances, (vii) all
obligations of any third party secured by property or assets of such Person
(regardless of whether or not the Company is liable for repayment of such
obligations), except for obligations to secure Indebtedness incurred within the
limitations of this Section 8(a); (viii) all guarantees of the Company and (ix)
the redemption price of all redeemable preferred stock of the Company, but only
to the extent that such stock is redeemable at the option of the holder or
requires sinking fund or similar payments at any time prior to the Maturity
Date;
(b) Loans;
Investments. Lend or advance money, credit or property to or
invest in (by capital contribution, loan, purchase or otherwise) any Person in
excess of US$2,000,000 except: (i) investments
in United States Government obligations, certificates of deposit of any banking
institution with combined capital and surplus of at least $200,000,000; (ii)
accounts receivable arising out of sales in the ordinary course of business; and
(iii) inter-company loans between and among the Company and its
Subsidiaries;
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(c) Dividends and
Distributions. Pay dividends or make any other distribution on
shares of the capital stock of the Company other than inter-company dividends,
and distributions between and among the Company and its
Subsidiaries;
(d) Liens. Except
as set forth on Schedule 8(d) hereto,
shall not create, assume or permit to exist, any lien on any of its property or
assets now owned or hereafter acquired except (i) liens in favor of the Holder;
(ii) liens granted to secure Indebtedness incurred within the limitations of
Section 8(a)
hereof; (iii) liens incidental to the conduct of its business or the ownership
of its property and assets which were not incurred in connection with the
borrowing of money or the obtaining of advances or credit and which do not
materially impair the use thereof in the operation of its business; (iv) liens
subordinate to the liens granted to secure this Note (v) liens for taxes or
other governmental charges which are not delinquent or which are being contested
in good faith and for which a reserve shall have been established in accordance
with generally accepted accounting principles; and (vi) purchase money liens
granted to secure the unpaid purchase price of any fixed assets purchased within
the limitations of Section 8(g) hereof;
(e) Contingent
Liabilities. Assume, endorse, be or become liable for or
guarantee the obligations of any Person, contingently or otherwise, excluding
however, the endorsement of negotiable instruments for deposit or collection in
the ordinary course of business or guarantees of the Company made within the
limitations of Section 8(a) hereof;
(f) Sales of Receivables; Sale -
Leasebacks. Except as set forth on Schedule 8(f) hereto,
sell, discount or otherwise dispose of notes, accounts receivable or other
obligations owing to the Company, with or without recourse, except for the
purpose of collection in the ordinary course of business; or sell any asset
pursuant to an arrangement to thereafter lease such asset from the purchaser
thereof;
(g) Capital Expenditures;
Capitalized Leases. Except in the case of a Principal Venue
Move, expend in the aggregate for the Company and all its Subsidiaries in excess
of US$5,000,000 in any fiscal year for Capital Expenditures (as defined below),
including payments made on account of Capitalized Leases (as defined
below). For purposes of the foregoing, Capital Expenditures shall
include payments made on account of any deferred purchase price or on account of
any indebtedness incurred to finance any such purchase price. “Capital Expenditures” shall
mean for any period, the aggregate amount of all payments made by any Person
directly or indirectly for the purpose of acquiring, constructing or maintaining
fixed assets, real property or equipment which, in accordance with generally
accepted accounting principles, would be added as a debit to the fixed asset
account of such Person, including, without limitation, all amounts paid or
payable with respect to Capitalized Lease Obligations and interest which are
required to be capitalized in accordance with generally accepted accounting
principles. “Capitalized Lease” shall mean
any lease the obligations to pay rent or other amounts under which constitute
Capitalized Lease Obligations. “Capitalized Lease Obligations”
shall mean as to any Person, the obligations of such Person to pay rent or other
amounts under a lease of (or other agreement conveying the right to use) real
and/or personal property which obligations are required to be classified and
accounted for as a capital lease on a balance sheet of such Person under
generally accepted accounting principles and, for purposes of this Note, the
amount of such obligations shall be the capitalized amount thereof, determined
in accordance with generally accepted accounting principles;
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(h) Nature of
Business. Materially alter the nature of the Company’s
business or otherwise engage in any business other than the business engaged in
or proposed to be engaged in on the date of this Note;
(i) Stock of
Subsidiaries. Sell or otherwise dispose of any Subsidiary or
permit a Subsidiary to issue any additional shares of its capital stock except
pro rata to its stockholders; and
(j) Accounting
Changes. Make, or permit any Subsidiary to make any change in
their accounting treatment or financial reporting practices except as required
or permitted by generally accepted accounting principles in effect from time to
time.
(k) Merger or
Sale.
(i) The
Company shall not, and shall not permit any of its Subsidiaries to, directly or
indirectly, consolidate or merge with or into another Person (whether or not the
Company or such Subsidiary is the surviving corporation), or sell, assign,
transfer, convey or otherwise dispose of all or substantially all of the
properties or assets of the Company and its Subsidiaries taken as a whole in one
or more related transactions, to any other Person, unless (A) either the Company
or such Subsidiary is the surviving corporation or the Person formed by or
surviving any such consolidation or merger (if other than the Company or such
Subsidiary) or to which such sale, assignment, transfer, conveyance or other
disposition shall have been made is a corporation organized or existing under
the laws of the United States, any state thereof or the District of Columbia,
(B) the Person formed by or surviving any such consolidation or merger (if other
than the Company or such Subsidiary) or the Person to which such sale,
assignment, transfer, conveyance or other disposition shall have been made (1)
assumes in writing all the obligations of the Company under the Notes and the
other Transaction Documents and (2) causes to be delivered to each Holder of any
Notes an opinion of nationally recognized independent counsel, or other
independent counsel reasonably satisfactory to the Investor Representative, to
the effect that all agreements or instruments effecting such assumption are
enforceable in accordance with their terms and comply with the terms hereof, and
(C) immediately after such transaction, no default or Event of Default
exists.
The foregoing paragraph in this Section
8(k)(i) shall not apply to (x) a merger of the Company with an Affiliate with no
material assets, liabilities or operations solely for the purpose of
reincorporating the Company in another jurisdiction; or (y) any consolidation or
merger, or any sale, assignment, transfer, conveyance, lease or other
disposition of assets between or among the Company and its Subsidiaries; provided, however, that such
consolidation or merger shall comply with subclauses (A) and (B) in the
foregoing paragraph.
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(ii) Upon
any consolidation or merger, or any sale, assignment, transfer, lease,
conveyance or other disposition of all or substantially all of the assets of the
Company or any of its Subsidiaries permitted by Section 8(k)(i) hereof, the
successor corporation formed by such consolidation or into or with which the
Company or such Subsidiary is merged or to which such sale, assignment,
transfer, lease, conveyance or other disposition is made shall succeed to, and
be substituted for (so that from and after the date of such consolidation,
merger, sale, lease, conveyance or other disposition, the provisions of this
Note referring to the “Company,” or to a “Subsidiary” shall refer instead to the
successor corporation and not to the Company or such Subsidiary, as the case may
be), may exercise every right and power of the Company or such Subsidiary under
this Note with the same effect as if such successor Person had been named as the
Company or a Subsidiary herein and shall be bound by every obligation and
liability of the Company or such Subsidiary under this Note and the other
Transaction Documents, however, that the predecessor Person shall not be
relieved from the obligation to pay the principal of and interest on the
Notes.
(l) Transactions with
Affiliates. Except for transactions contemplated by the
Transaction Documents or as otherwise approved by the Board (including a
majority of the independent directors then on the Board) or as disclosed in the
SEC Reports or the Memorandum, the Company shall not, and shall cause its
Subsidiaries not to enter into any transaction with any director, officer,
employee or holder of more than five percent of the outstanding capital stock of
any class or series of capital stock of the Company or any Subsidiary, member of
the family of any such person, or any corporation, partnership, trust or other
entity in which any such person, or member of the family of any such person, is
a director, officer, trustee, partner or holder of more than five percent of the
outstanding capital stock thereof.
9. Holder Not Deemed a
Stockholder. No Holder, as such, of this Note shall be
entitled to vote or receive dividends or be deemed the holder of shares of the
Company for any purpose, nor shall anything contained in this Note be construed
to confer upon the Holder hereof, as such, any of the rights at law of a
stockholder of the Company prior to the issuance to the Holder of the shares of
Common Stock which the Holder is then entitled to receive upon the due
conversion of this Note.
10. Mutilated, Destroyed, Lost
or Stolen Notes. In case this Note shall become mutilated or
defaced, or be destroyed, lost or stolen, the Company shall execute and deliver
a new note of like principal amount in exchange and substitution for the
mutilated or defaced Note, or in lieu of and in substitution for the destroyed,
lost or stolen Note. In the case of a mutilated or defaced Note, the
Holder shall surrender such Note to the Company. In the case of any
destroyed, lost or stolen Note, the Holder shall furnish to the Company: (i)
evidence to its satisfaction of the destruction, loss or theft of such Note and
(ii) such security or indemnity as may be reasonably required by the Company to
hold the Company harmless.
11. Waiver of Demand,
Presentment, etc. The Company hereby expressly waives demand
and presentment for payment, notice of nonpayment, protest, notice of protest,
notice of dishonor, notice of acceleration or intent to accelerate, bringing of
suit and diligence in taking any action to collect amounts called for hereunder
and shall be directly and primarily liable for the payment of all sums owing and
to be owing hereunder, regardless of and without any notice, diligence, act or
omission as or with respect to the collection of any amount called for
hereunder. The Company agrees that, in the event of an Event of
Default, to reimburse the Holder for all reasonable costs and expenses
(including reasonable legal fees of one counsel) incurred in connection with the
enforcement and collection of this Note.
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12. Payment. All
payments with respect to this Note shall be made in lawful money of the United
States of America, at the address of the Holder as of the date hereof or as
designated in writing by the Holder from time to time. The receipt by the Holder of immediately available funds shall constitute a
payment of principal and interest hereunder and shall satisfy and discharge the
liability for principal and interest on this Note to the extent of the sum
represented by such payment. Payment shall be credited first to the
accrued interest then due and payable and the remainder applied to
principal.
13. Assignment. The
rights and obligations of the Company and the Holder of this Note shall be
binding upon, and inure to the benefit of, the successors and permitted assigns
of the parties hereto. The Holder may not assign, pledge or otherwise
transfer this Note or any interest therein without the prior written consent of
the Company. Interest and principal are payable only to the
registered Holder of this Note on the books and records of the
Company.
14. Waiver and
Amendment. Any provision of this Note, including, without
limitation, the due date hereof, and the observance of any term hereof, may be
amended, waived or modified (either generally or in a particular instance and
either retroactively or prospectively) only with the written consent of the
Company and the Investor Representative.
15. Notices. Any
notice, request or other communication required or permitted hereunder shall be
in writing and shall be deemed to have been duly given if given in accordance
with the provisions of Section 9.2 of the SPA.
16. Governing
Law. This Note shall be governed by and construed in
accordance with the laws of the State of New York, USA, excluding that body of
law relating to conflicts of laws.
17. Consent to
Jurisdiction. Each party agrees that all legal proceedings
concerning the interpretations, enforcement and defense of the transactions
contemplated by this Note (whether brought against a party hereto or its
respective affiliates, directors, officers, shareholders, employees or agents)
shall be commenced exclusively in the state and federal courts sitting in the
City of New York. Each party hereto hereby irrevocably submits to the
exclusive jurisdiction of the state and federal courts sitting in the City of
New York, New York for the adjudication of any dispute hereunder or in
connection herewith or with any transaction contemplated hereby or discussed
herein (including with respect to the enforcement of this Note, and hereby
irrevocably waives, and agrees not to assert in any suit, action or proceeding,
any claim that it is not personally subject to the jurisdiction of any such
court, that such suit, action or proceeding is improper. Each party
hereto hereby irrevocably waives personal service of process and consents to
process being served in any such suit, action or proceeding by mailing a copy
thereof via registered or certified mail or overnight delivery (with evidence of
delivery) to such party at the address in effect for notices to it under this
Note and agrees that such service shall constitute good and sufficient service
of process and notice thereof. Nothing contained herein shall be
deemed to limit in any way any right to serve process in any manner permitted by
law. THE COMPANY AND, BY ITS ACCEPTANCE HEREOF, THE HOLDER (INCLUDING
THEIR RESPECTIVE AFFILIATES, AGENTS, OFFICERS, DIRECTORS AND EMPLOYEES) HEREBY
IRREVOCABLY WAIVE, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND
ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO
THIS NOTE OR THE TRANSACTIONS CONTEMPLATED HEREBY.
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18. Severability. If
one or more provisions of this Note are held to be unenforceable under
applicable law, such provisions shall be excluded from this Note, and the
balance of this Note shall be interpreted as if such provisions were so excluded
and shall be enforceable in accordance with its terms.
19. Headings. Section
headings in this Note are for convenience only, and shall not be used in the
construction of this Note.
[Signature
Page Follows]
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IN WITNESS WHEREOF, the
Company has caused this Note to be issued as of the
date first above written.
LINK
RESOURCES, INC.
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By:
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Name:
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Title:
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14
Exhibit
A
LINK
RESOURCES, INC.
NOTE
CONVERSION NOTICE
Reference
is made to the 8% Senior Convertible Promissory Note in the original principal
amount of $___________ of Link Resources, Inc., a Nevada corporation (the “Company”), issued to the
undersigned (the “Note”).
In accordance with and pursuant to the
terms of the Note, the undersigned hereby elects to convert the entire
outstanding principal amount due and owing under the Note, together with all
accrued but unpaid interest thereon, into shares of Common Stock, $0.001 par
value per share, of the Company (the “Common Stock”), by tendering
the original of the Note for cancellation.
Please
confirm the following information:
Principal
Amount Outstanding
under the
Note:_______________________
Accrued
but unpaid interest
under the
Note:________________________
Conversion
Price: _______________________
Number of
Shares to be issued: _________________________
Please
issue the Shares into which the Note is being converted in the following name
and to the following address:
Issue
to:
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___________________________________________________________
|
Address:
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_____________________________________________
|
_____________________________________________
|
|
_____________________________________________
|
|
Facsimile
Number:
|
___________________________________________________________
|
Authorization:
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___________________________________________________________
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By: ________________________________________________________
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Title:
_______________________________________________________
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Dated: ________________________