Exhibit 10.49
-------------
Amendment No. 1
to the Senior Secured Convertible Promissory Note
due date February 13, 2008
This Amendment No. 1 ("Amendment") is entered into as of August 20, 2007 (the
"Effective Date") by and between FinancialContent, Inc., with principal offices
at 000 Xxxxxxx Xxxxxx Xxxxx, Xxxxx 000, Xxxxxx Xxxx, Xxxxxxxxxx 00000 (the
"Maker") and Jade Special Strategy, LLC, with principal offices at 0000 Xxxx
Xxxxxxx Xxxx, Xxxxx 000, Xxxxxxxx, Xxx Xxxx 00000 (the "Holder") (hereinafter
Maker and Holder each a "Party" and collectively "Parties").
This Amendment amends certain provisions of the Senior Secured Convertible
Promissory Note due February 13, 2008 executed by and between the parties on or
about February 13, 2006 ("Original Note"). The "Note" collectively consists of
all provisions in the Original Note and this Amendment. If any inconsistencies
exist between the terms of such agreements, this Amendment shall take precedence
over the Original Note. To the extent not expressly amended by this Amendment,
all other terms and conditions of the Original Note shall remain in full force
and effect. Unless expressly defined hereunder, all initial capitalized and
capitalized terms shall have the meaning ascribed to them in the Original Note.
RECITALS:
Whereas, the Original Note is convertible into the Maker's common stock at $0.75
per share, subject to certain reset provisions, pursuant to section 3.2(b); and
Whereas, the Original Note entitles the Holder to prepayment charges upon the
occurrence of certain events pursuant to section 3.7; and
Whereas, the Maker and the Holder desire to restate the Original Note to reflect
the Holder's willingness to forego its rights to adjust the Conversion Price
indefinitely; and
Whereas, the Maker and the Holder desire to restate the Original Note to reflect
the Holder's willingness to forego its rights to such prepayment charges
indefinitely; and
Whereas, the Maker and the Holder are in agreement with respect to the terms and
conditions on which the Holder shall agree to forego its rights to adjust the
Conversion Price and to assess prepayment charges.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
contained herein, the Parties agree to modify the terms and conditions of the
Agreement as follows:
1. The paragraph immediately above the Article I heading on page one of the
Original Note is amended to read as follows:
All payments under or pursuant to this Note shall be made in United States
Dollars in immediately available funds to the Holder at the address of the
Holder first set forth above or at such other place as the Holder may designate
from time to time in writing to the Maker or by wire transfer of funds to the
Holder's account, instructions for which are attached hereto as Exhibit A. The
outstanding principal balance of this Note shall be due and payable on December
31, 2007 (the "Maturity Date") or at such earlier time as provided herein.
2. Section 1.2 of the Original Note is amended as follows:
(a) Beginning on the issuance date of this Note (the "Issuance Date"), the
outstanding principal balance of this Note shall bear interest, in arrears, at a
rate per annum equal to nine percent (9%), payable monthly commencing on March
1, 2006 and on the first business day of each following month at the option of
the Maker in (A) cash or (B) registered shares of the Maker's common stock,
$0.001 par value per share (the "Common Stock"); provided that commencing with
the first month following the month that the Registration Statement is declared
effective, interest shall be paid on the last business day of each month. The
Maker shall provide irrevocable written notice to the Holder of the form of
interest payment at least ten (10) days prior to an interest payment date. If no
such notice is provided at least ten (10) days prior to an interest payment
date, the Maker must make the interest payment in cash. In addition, the Maker
must make interest payments in cash if it is unable to make interest payments in
registered shares of Common Stock. Notwithstanding the foregoing, the interest
payment for the three (3) months following the Issuance Date shall be payable in
cash on the Issuance Date. The number of shares of Common Stock to be issued as
payment of accrued and unpaid interest shall be determined by dividing (a) the
total amount of accrued and unpaid interest to be converted into Common Stock by
(b) the Conversion Price (as defined in Section 3.2 hereof). Interest shall be
computed on the basis of a 360-day year of twelve (12) 30-day months and shall
accrue commencing on the Issuance Date. Furthermore, upon the occurrence of an
Event of Default (as defined in Section 2.1 hereof), then to the extent
permitted by law, the Maker will pay interest to the Holder, payable on demand,
on the outstanding principal balance of the Note from the date of the Event of
Default until such Event of Default is cured at the rate of the lesser of
fifteen percent (15%) and the maximum applicable legal rate per annum.
3. Section 3.1 is amended to read as follows:
(a) At any time on or after the Issuance Date, this Note shall be convertible
(in whole or in part), at the option of the Holder (the "Conversion Option"),
into such number of fully paid and non-assessable shares of Common Stock (the
"Conversion Rate") as is determined by dividing (x) that portion of the
outstanding principal balance plus any accrued but unpaid interest under this
Note as of such date that the Holder elects to convert by (y) the Conversion
Price (as defined in Section 3.2(a) hereof) then in effect on the date on which
the Holder faxes a notice of conversion (the "Conversion Notice"), duly
executed, to the Maker (facsimile number (000) 000-0000, Attn.: Chief Executive
Officer) (the "Voluntary Conversion Date"), provided, however, that the
-2-
Conversion Price shall be subject to adjustment as described in Section 3.6
below. The Holder shall deliver this Note to the Maker at the address designated
in the Purchase Agreement at such time that this Note is fully converted. With
respect to partial conversions of this Note, the Maker shall keep written
records of the amount of this Note converted as of each Conversion Date.
4. Section 3.2 is amended to read as follows:
(a) The term "Conversion Price" shall mean $0.75, subject to adjustment under
Section 3.6 hereof.
5. Section 3.7(a) of the Original Note is amended so as to be entirely deleted.
-3-
6. Section 3.7(c) of the Original Note is amended to read as follows:
Prepayment Option Upon Triggering Event. In addition to all other rights of the
Holder contained herein, after a Triggering Event (as defined below), the Holder
shall have the right, at the Holder's option, to require the Maker to prepay all
or a portion of this Note in cash at a price equal to one hundred percent (100%)
of the aggregate principal amount of this Note plus all accrued and unpaid
interest (the "Triggering Event Prepayment Price," and, collectively with the
Major Transaction Prepayment Price, the "Prepayment Price").
7. Section 3.7(k) of the Original Note is amended to read as follows:
Maker Prepayment Option. Upon the Maker receiving a written Notice of Conversion
from the Holder, the Maker shall have five (5) Trading Days following receipt of
the Notice of Conversion to provide written notice to the Holder of its
intention to prepay in cash all of the outstanding principal amount of this Note
together with all accrued and unpaid interest thereon (the "Maker's Prepayment
Notice") at a price equal to one hundred percent (100%) of the aggregate
principal amount of this Note plus any accrued but unpaid interest (the "Maker's
Prepayment Price"). The Maker shall have thirty (30) days to deliver the Maker's
Prepayment Price to the Holder during which time the Holder shall not convert
this Note into shares of Common Stock; provided, however, that if during the
period between delivery of the Maker's Prepayment Notice and the Maker's
Prepayment Date (as defined below), the Holder shall become entitled to deliver
a Notice of Prepayment at Option of Holder Upon Major Transaction or Notice of
Prepayment at Option of Holder upon Triggering Event, then the such rights of
the Holder shall take precedence over the previously delivered Maker Prepayment
Notice. The Maker's Prepayment Notice shall state the date of prepayment which
date shall be within thirty (30) days after the Maker has delivered the Maker's
Prepayment Notice (the "Maker's Prepayment Date"), the Maker's Prepayment Price
and the principal amount of Notes plus any accrued but unpaid interest to be
prepaid by the Maker. The Maker shall deliver the Maker's Prepayment Price on or
prior to the Maker's Prepayment Date. If the Maker fails to pay the Maker's
Prepayment Price by the Maker's Prepayment Date, the prepayment will be declared
null and void, the Maker shall lose its right to serve a Maker's Prepayment
Notice pursuant to this Section 3.7(k) in the future.
8. This Amendment is expressly subject to and conditioned upon the approval of
the Maker's board of directors.
9. This Amendment constitutes an amendment to the Original Note and shall be
attached to and made a part of the Original Note.
10. The Holder represents and warrants that since the time of the issuance of
the Original Note the Holder has not sold, assigned, transferred, endorsed,
pledged, hypothecated and or otherwise disposed of the Original Note.
11. This amendment to the Original Note shall become null and avoid in the
event of a material change in the operations and management of the Company.
-4-
IN WITNESS WHEREOF, the parties have caused this Amendment to be executed by
their duly authorized representatives.
FINANCIALCONTENT, INC. JADE SPECIAL STRATEGY, LLC
By: /s/ By: /s/
------------------------------- ----------------------------------
Name: Wing Yu Name: Xxxxx Xxxxxx
Title: CEO Title: Manager
-5-
