THIS NOTE AND THE SECURITIES ISSUABLE UPON CONVERSION OF THIS NOTE HAVE NOT
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR THE
SECURITIES LAWS OF ANY STATE. THIS NOTE AND SUCH SHARES MAY NOT BE SOLD,
OFFERED FOR SALE, PLEDGED, HYPOTHECATED, OR OTHERWISE TRANSFERRED IN THE
ABSENCE OF REGISTRATION UNDER SAID ACT AND ALL OTHER APPLICABLE SECURITIES
LAWS OR UNLESS AN OPINION OF COUNSEL REASONABLY ACCEPTABLE TO THE COMPANY
THAT AN EXEMPTION FROM REGISTRATION IS AVAILABLE IS RECEIVED BY THE COMPANY.
THIS INSTRUMENT IS SUBJECT TO THE TERMS OF A SUBORDINATION AGREEMENT BY
XXXXXXXXXXXX VENTURE PARTNERS V, L.P. IN FAVOR OF XXXXX FARGO BANK MINNESOTA,
NATIONAL ASSOCIATION, AS AGENT, DATED AS OF AUGUST 15, 2000.
$2,000,000.00
8.0% Note
Dated: August 15, 2000
1. General. For value received, the Company hereby promises to pay to the
order of Xxxxxxxxxxxx Venture Partners V, L.P., or any successor Holder
or Holders hereof, the principal amount of $2,000,000.00, on the
Maturity Date, in such coin or currency of the United States of America
as at the time of payment shall be legal tender for the payment of
public and private debts, together with interest on the unpaid
principal balance at an annual rate of 8.0% compounded monthly from the
date hereof until this Note shall have been paid in full or cancelled
in accordance with section 9 hereof. Interest on this Note shall be
due on the Maturity Date. Unless converted into equity securities of
the Company pursuant to section 9 hereof, all payments of principal and
interest on this Note shall be paid by wire transfer of immediately
available funds to such account or accounts as the Holder hereof shall
notify the Company of in writing. Interest shall be computed on the
basis of a 360-day year of twelve 30-day months. The Company may
prepay all but not less than all of this Note at any time without
penalty or premium.
2. Definitions. As used herein, the following terms have the following
respective meanings, unless the context otherwise requires:
1. "Affiliate" shall mean, with respect to any Holder, any Person
that directly or indirectly through one or more intermediaries
controls or is controlled by or is under common control with such
Holder, and shall include, with respect to any Holder that is a
fund, all funds under common control with such Holder.
2. "Common Stock" shall mean the common stock, par value $0.25 per
share, of the Company.
3. "Company" shall mean Xxxxxxxx, Inc., a Minnesota corporation.
4. "Conversion Date" with respect to any Holder shall mean the date
on which such Holder has delivered a notice of conversion and
Note to the Company in accordance with section 9(b)(iii) hereof.
5. "Conversion Price" as of any date shall mean the following:
1. if the Company and Xxxxxxxxxxxx shall have signed a
Definitive Agreement by December 31, 2000, all of the conditions
to the obligation of Xxxxxxxxxxxx to close thereunder shall have
been satisfied on or prior to December 31, 2000, Xxxxxxxxxxxx
shall have failed to close and clause (ii) below is not
applicable, the Conversion Price shall be $4.00 per share of
Common Stock, equitably adjusted to reflect stock splits and
reverse splits, stock dividends, reorganizations and the like
occurring on or after August 15, 2000.
2. if the Company and Xxxxxxxxxxxx shall have signed a
Definitive Agreement by December 31, 2000, all of the conditions to the
obligation of the Company to close thereunder shall have been satisfied on or
prior to December 31, 2000, the Company shall have failed to close and clause
(i) above is not applicable, the Conversion Price shall be the lesser of:
(1) 50% of the Market Price of the Common Stock on
December 31, 2000 and
(2) 50% of the Market Price of the Common Stock on the
Conversion Date,
but in no event less than $2.00 per share of Common Stock.
3. if the Company and Xxxxxxxxxxxx shall have signed a
Definitive Agreement by December 31, 2000 and both of clauses (i) and (ii)
above are applicable or neither of clauses (i) and (ii) above is applicable,
or if the Company and Xxxxxxxxxxxx shall not have signed a Definitive
Agreement by December 31, 2000, the Conversion Price shall be the lesser of:
(1) 75% of the Market Price of the Common Stock on
December 31, 2000 and
(2) 75% of the Market Price of the Common Stock on the
Conversion Date,
but in no event less than $3.00 per share of Common Stock.
6. "Definitive Agreement" shall mean a definitive preferred stock
purchase agreement between the Company and purchasers, including
Xxxxxxxxxxxx, of the Company's Series G Convertible Preferred
Stock.
7. "Event of Default" shall have the meaning set forth in section
8(a) hereof.
8. "Holder" shall mean Xxxxxxxxxxxx Venture Partners V, L.P. or any
other Person or Persons who shall at the time be an assignee of
this Note or any portion thereof.
9. "Market Price" of the Common Stock as of any date shall mean the
average of the per share closing sales prices of Common Stock on
the Nasdaq National Market System as reported in The Wall Street
Journal for the 10 trading days ending five trading days prior to
the date as of which Market Price is to be determined.
10. "Maturity Date" shall mean December 31, 2001.
11. "Xxxxxxxxxxxx" shall mean Xxxxxxxxxxxx Venture Partners V, L.P.
and any Affiliate of Xxxxxxxxxxxx Venture Partners V, L.P.
12. "Note" shall mean this Note and any Note or Notes executed and
delivered by the Company in exchange therefor or replacement
thereof pursuant to section 7 hereof.
13. "Person" shall mean an individual, a company, a partnership, a
trust, an unincorporated organization and a government or any
department, agency or political subdivision thereof.
14. "Securities Act" shall mean the Securities Act of 1933, as
amended.
15. "Triggering Financing" shall mean any financing by the Company in
which the Company issues to investors including Xxxxxxxxxxxx
Venture Partners V, L.P., or any affiliate of Xxxxxxxxxxxx
Venture Partners V, L.P. shares of preferred stock of any class
or series of the Company having terms acceptable to Xxxxxxxxxxxx
Venture Partners V, L.P.
3. Representations and Warranties of the Company. The Company hereby
represents and warrants to the Holder as follows:
1. Authorization. The execution, delivery and performance by the
Company of this Note has been duly authorized by all requisite
corporate action by the Company, and this Note constitutes a
valid and binding obligation of the Company, enforceable in
accordance with its terms, subject to applicable bankruptcy,
reorganization, insolvency, moratorium and similar laws affecting
creditors' rights generally and to general principals of equity.
2. Status under the Company's rights agreement and certain
provisions of the Minnesota Business Corporation Act. Assuming
that, as of the date of this Note, but without giving effect to
its issuance, Xxxxxxxxxxxx is not:
1. the Beneficial Owner (as defined in section
1(d) of the Rights Agreement dated June 16, 1998, by and
between the Company and Norwest Bank Minnesota, N. A., as
amended) of any shares of capital stock of the Company or
securities convertible into shares of capital stock of the
Company or
2. an "interested shareholder" of the Company or
an "affiliate" or "associate" thereof, as such terms are
defined in section 302A.011 of the Minnesota Business
Corporation Act ("MBCA"),
the issuance of the Note and the shares upon conversion of the
Note will not in and of itself result in Xxxxxxxxxxxx becoming an
"Acquiring Person" under the Company's Rights Agreement or an
"interested shareholder" under section 302A.673 of the MBCA .
3. Conflicts. The execution and delivery of this Note by the
Company, the consummation of the transactions contemplated hereby
and the compliance with the provisions hereof by the Company and
the issuance, sale and delivery of this Note by the Company, will
not:
1. violate any provision of law, statute, rule or
regulation, or any ruling, writ, injunction, order,
judgment or decree of any court, administrative agency or
other governmental body applicable to the Company, or
2. subject to any obligations of the Company to
Molex Incorporated under the Agreement Relating to
Xxxxxxxx, dated as of November 18, 1998, between the
Company and Molex Incorporated, conflict with or result in
any breach of any of the terms, conditions or provisions
of, or constitute (with due notice or lapse of time, or
both) a default (or give rise to any right of termination,
cancellation or acceleration) under, the certificate of
incorporation or by-laws of the Company, or under any note,
indenture, mortgage, lease, purchase or sales order or
other material contract, agreement or instrument to which
the Company is a party or by which it or any of its
property is bound or affected; or
3. result in the creation of any lien, security
interest, charge or encumbrance upon any of the properties
or assets of the Company.
4. Securities Laws Compliance. The Company has not offered this
Note or any security the offering of which would be integrated
(as that term is used in Rule 502 of Regulation D promulgated
under the Securities Act) with the offer or sale of this Note for
sale to, or solicited any offers to buy any of the foregoing
from, or otherwise approached or negotiated in respect thereof,
with any Person other than a limited number of institutional or
other sophisticated investors deemed to be "accredited investors"
as such term is defined in rule 501(a) of Regulation D adopted
under the Securities Act.
5. No Consent or Approval Required. Except for the filing of any
notice subsequent to the date hereof that may be required under
applicable federal or state securities laws (which, if required,
shall be filed on a timely basis as may be so required), no
permit, consent, approval or authorization of, or declaration to,
or filing with, any Person (governmental or private) is required
for the valid authorization, execution, delivery and performance
by the Company of this Note or for the valid authorization,
issuance, sale and delivery of this Note, or the carrying out by
the Company of the transactions contemplated hereby.
6. Purchase Order Commitment. It will, within five business days of
the date hereof, issue a purchase order to ESI to upgrade the
Company's installed ESI model 5100 laser to an ESI model 5200
laser and order two additional ESI model 5200 lasers.
4. Representations and Warranties of the Holder. The Holder represents,
warrants and covenants to the Company that:
1. Authorization. The execution, delivery and performance by the
Holder of this Note has been duly authorized by all requisite
corporate action by the Holder, and this Note constitutes a valid
and binding obligation of the Holder, enforceable in accordance
with its terms, subject to applicable bankruptcy, reorganization,
insolvency, moratorium and similar laws affecting creditors'
rights generally and to general principals of equity.
2. Conflicts. The consummation of the transactions contemplated
hereby and compliance with the provisions hereof by the Holder,
will not:
1. violate any provision of law, statute, rule or
regulation, or any ruling, writ, injunction, order,
judgment or decree of any court, administrative agency or
other governmental body applicable to the Holder, or
2. conflict with or result in any breach of any of
the terms or provisions of, or constitute a default (or
give rise to any right of termination, cancellation or
acceleration) under, the constituent documents of the
Holder or under any note, indenture, agreement or
instrument to which such Holder is a party or by which it
or any of its properties is bound or affected.
3. Purchase for Investment. It is acquiring this Note and the
securities into which this Note is convertible for its own
account, for investment and not with a view to the distribution
thereof within the meaning of the Securities Act.
4. No Registration. It understands that neither this Note nor any
of the securities into which this Note is convertible has been,
or will be, registered under the Securities Act, by reason of its
or their issuance by the Company in a transaction exempt from the
registration requirements of the Securities Act; and that this
Note and the securities into which this Note is convertible must
be held by it indefinitely unless a subsequent disposition
thereof is registered under the Securities Act or is exempt from
registration.
5. Restrictions on Resale. It understands that the exemption from
registration afforded by Rule 144 (the provisions of which are
known to it) promulgated under the Securities Act depends on the
satisfaction of various conditions, and that, if and when
applicable, Rule 144 may only afford the basis for sales in
limited amounts.
6. Accredited Investor.
1. It is an "accredited investor" as defined in
Rule 501(a) of Regulation D promulgated under the
Securities Act and, by reason of its business and financial
experience and the business and financial experience of
those persons retained by it to advise it with respect to
its investment in this Note and the securities into which
this Note is convertible, has such knowledge,
sophistication and experience in business and financial
matters so as to be capable of evaluating the merits and
risks of the prospective investment, is able to bear the
economic risk of such investment and, at the present time,
is able to afford a complete loss of such investment, and
2. it is familiar with the business of the Company
and has had the opportunity to ask questions of the
officers and directors of the Company and to obtain such
information about the financial condition of the Company as
it has requested.
5. Covenants of the Company. As promptly as practicable, and in any
event not later than two business days after senior management of the Company
becomes aware of any breach by the Company of any provision of this
Note, including, without limitation, this section 5, the Company shall
provide the Holder with written notice specifying the nature of such
breach and any actions proposed to be taken by the Company to cure such
breach.
6. Indemnification. If any one or more of the representations,
warranties, covenants and/or agreements set forth in this Note shall
have been breached by the Company, then the Company agrees to
indemnify, defend and hold the Holder harmless from and against all
demands, claims, actions or causes of action, assessments, losses,
damages (including, without limitation, diminution in value),
liabilities, costs and expenses (including, without limitation,
interest, penalties, fines, punitive damages and reasonable attorneys'
fees and disbursement) incurred by the Holder, arising out of or
resulting from any breach of any such representation, warranty,
covenant and/or agreement.
7. Exchange or Replacement of this Note.
1. The Holder of this Note may in person or by duly authorized
attorney surrender this Note for exchange at the office of the
Company, and at the expense of the Company receive in exchange
therefor a new Note of like tenor in the same aggregate principal
amount as the aggregate unpaid principal amount of this Note so
surrendered and bearing interest at the same annual rate as this
Note so surrendered, each such new Note to be dated as of the
date to which interest has been paid on this Note so surrendered
and to be in such principal amount and payable to such permitted
assignee or transferee, as such Holder may designate in writing;
provided, however, that the Company shall not be required to pay
any tax which may be payable in respect of any transfer involved
in the issuance and delivery of any new Note in a name other than
that of the Holder of this Note surrendered in exchange
therefor. Five days prior written notice of the Holder's
intention to make such exchange shall be given to the Company.
2. Upon receipt by the Company of evidence satisfactory
to it of the loss, theft, destruction or mutilation of this
Note and (in case of loss, theft or destruction) of indemnity
satisfactory to it, and upon reimbursement to the Company of
all reasonable expenses incidental thereto, and upon
surrender and cancellation of this Note, if mutilated, the
Company will make and deliver a new Note of like tenor in
lieu of this Note. Any Note made and delivered in accordance
with the provisions of this section 7(b) shall be dated as of
the date to which interest has been paid on this Note.
8. Remedies.
1. Events of Default Defined. The entire principal amount of and
all accrued interest on this Note shall forthwith become and be
due and payable (subject, however, to the enforcement provisions
contained in section 8(b) hereof) if any one or more of the
following events (herein called "Events of Default") shall have
occurred and be continuing (for any reason whatsoever and whether
such happening shall be voluntary or involuntary or come about or
be effected by operation of law or pursuant to or in compliance
with any judgment, decree or order of any court or any order,
rule or regulation of any administrative or governmental body):
1. if default shall be made in the due and
punctual payment of the principal of or interest on this
Note, when and as the same shall become due and payable,
whether at the maturity, by acceleration, or otherwise;
2. if any event shall have occurred that by itself
or with the passage of time or giving of notice constitutes
a default or event of default under any agreement under
which the Company or any subsidiary of the Company has
incurred indebtedness for money borrowed, which default or
event of default shall not have been waived by the lender
party.
3. if the Company or any subsidiary shall:
(1) admit in writing its inability to pay its debts
generally as they become due,
(2) file a petition in bankruptcy or a petition to take
advantage of any insolvency act,
(3) make an assignment for the benefit of its creditors,
(4) consent to the appointment of a receiver of itself
or of the whole or any substantial part of its property,
(5) on a petition in bankruptcy filed against it, be
adjudicated a bankrupt, or
(6) file a petition or answer seeking reorganization or
arrangement under the federal bankruptcy laws or any
other applicable law or statute of the United States
of America or any state thereof;
4. if a court of competent jurisdiction shall
enter an order, judgment or decree appointing, without the
consent of the Company or any subsidiary, a receiver of the
Company or any subsidiary or of the whole or any
substantial part of its property, or approving a petition
filed against it seeking reorganization or arrangement of
the Company or any subsidiary under the federal bankruptcy
laws or any other applicable law or statute of the United
States of America or any state thereof, and such order,
judgment or decree shall not be vacated or set aside or
stayed within 30 days from the date of entry thereof; or
5. if, under the provisions of any other law for
the relief or aid of debtors, any court of competent
jurisdiction shall assume custody or control of the Company
or any subsidiary or of the whole or any substantial part
of its property and such custody or control shall not be
terminated or stayed within 30 days from the date of
assumption of such custody or control.
2. Suits for Enforcement.
1. In case any one or more of the Events of
Default specified in section 8(a) hereof shall have
occurred, the Holder of this Note may proceed to protect
and enforce its rights either by suit in equity and/or by
action at law, whether in aid of the exercise of any power
granted in this Note or other instrument or proceed to
enforce the payment of this Note or to enforce any other
legal or equitable right of the registered Holder of this
Note. In addition to any amounts otherwise payable under
this Note, the Holder shall be entitled to recover all
reasonable costs and expenses related to enforcement of
this Note, including without limitation, legal and
accounting fees and court costs.
2. The Company hereby waives and releases all
benefits that might accrue to the Company by virtue of any
present or future laws exempting any property, real or
personal, or any part of the proceeds arising from any sale
of any such property, from attachment, levy, or sale under
execution, or providing for any stay of execution,
exemption from civil process or extension of time for
payment; and the Company agrees that any real estate that
may be levied upon pursuant to a judgment obtained by
virtue hereof, on any writ of execution issued thereon, may
be sold upon any such writ in whole or in part in any order
desired by the Holder.
3. Except as expressly set forth herein, the
Company hereby waives demand, notice of demand, notice of
nonpayment or dishonor, protest and notice of protest of
this Note, and all other notices not specifically required
hereby in connection with the delivery, acceptance,
performance, default, or enforcement of the payment of this
Note, and agrees that its liability hereunder shall be
unconditional.
4. The Holder shall not be deemed, by any act of
omission or commission, to have waived any of its rights or
remedies hereunder unless such waiver is in writing and
signed by the Holder, and then only to the extent
specifically set forth in writing. A waiver of one event
shall not be construed as continuing or as a bar to or
waiver of any right or remedy to a subsequent event.
3. Remedies Cumulative. No right or remedy herein conferred upon
the Holder of this Note is intended to be exclusive of any other
right or remedy, and each and every such right and remedy shall
be cumulative and shall be in addition to every other right or
remedy given hereunder or now or hereafter existing at law or in
equity or by statute or otherwise, and the failure to exercise
any such right or remedy shall in no event be construed as a
waiver or release thereof.
4. Remedies Not Waived. No course of dealing between the Company
and the Holder hereof or any delay on the part of the Holder
hereof in exercising any rights hereunder shall operate as a
waiver of any rights of such Holder.
9. Automatic Conversion of this Note.
1. Automatic Roll-in to a Triggering Financing.
(1) If the Company closes a Triggering Financing on
or prior to December 31, 2000, then, as of the closing date
of such Triggering Financing:
(1) the Holder of this Note shall automatically and
without any action by the Holder:
(1) be deemed to have become an investor party to
the security purchase agreement and other
agreements entered into by the Company in
connection with such Triggering Financing and
to have all of the rights and obligations of an
investor party to such agreements on a basis
consistent with the amount of the securities
purchased or deemed to have been purchased
thereunder by such Holder, and
(2) be deemed to have invested an amount equal to
the unpaid principal amount of this Note and
all accrued but unpaid interest thereon through
the date of such closing of the Triggering
Financing in the securities issued by the
Company in connection with such Triggering
Financing at the same purchase price and on the
same other terms and conditions available to
other purchasers of such securities (rounded
down to the nearest whole share).
(2) this Note shall be deemed to have been cancelled and
all of the Company's obligations hereunder shall be
deemed to have been terminated.
2. The Holder shall, at the time of the closing of
the Triggering Financing, if so requested by the Company,
execute and deliver to the Company an acknowledgment and
affirmation of the terms of the agreements referred to
under section 9(a)(i)(1)(a) hereof.
2. Conversion into Common Stock at the option of the Holder.
1. If the Company does not close a Triggering
Financing on or prior to December 31, 2000, then the Holder
of this Note shall have the right, exercisable at any time
after December 31, 2000 and prior to the close of business
(New York time) on the Maturity Date, to convert this Note,
in whole and not in part, into shares of Common Stock on
the terms and in the manner provided in this section 9(b).
2. The number of shares of Common Stock issuable
upon conversion of this Note shall be equal to the ratio
of:
(1) the sum of:
(1) the principal amount of this Note on the
Conversion Date and
(2) the amount of interest accrued on the Note
through the Conversion Date, to
(2) the Conversion Price in effect on the Conversion
Date.
3. To convert this Note, the Holder must complete,
sign and deliver to the Company:
(1) a notice of conversion substantially in the form
attached hereto as exhibit 9(b) and
(2) this Note duly endorsed for transfer.
4. The Note shall be deemed to have been converted
and cancelled and all of the Company's obligations
hereunder shall be deemed to have been terminated, and the
converting Holder shall be deemed to have become a
stockholder of record, as of the Conversion Date.
5. Not later than 10 Business Days after the
Conversion Date, the Company will deliver to the Holder a
certificate representing the shares of Common Stock
issuable on conversion of the Note.
6. No fractional shares will be issued upon
conversion but a cash adjustment will be made for any
fractional shares based on the Market Price of the Common
Stock on the Conversion Date.
3. Any Holder who acquires shares of Common Stock on conversion of
this Note shall be deemed to have the same rights it would have
had had it been a stockholder party to the registration rights
agreement between the Company and the holders of the Company's
Series F Convertible Preferred Stock, as such agreement is in
effect as of the date hereof, without regard to any amendments
thereto to which such Holder has not consented.
4. Indispensable Inducement. Each of the Company and the Holder
acknowledges that its agreements under sections 9(a) and (b)
hereof are an indispensable inducement to the other party hereto
to enter into the transactions contemplated by this Note and that
it would be irreparably injured if such other party were not to
comply with the requirements of such sections.
5. Taxes. The issuance of certificates for shares in exchange for
this Note under the arrangements contemplated by sections 9(a)
and 9(b) hereof shall be made without charge to the Holder of
this Note for any issuance tax in respect thereto.
10. Further Assurances. The Holder and the Company agree to take, or cause to
be taken, all such further or other actions as shall reasonably be
necessary to make effective and consummate the transactions
contemplated by this Note.
11. Survival of Representations, Warranties and Agreements, etc. All
representations and warranties hereunder shall survive the closing date
hereof for a period of one year and thereafter shall terminate. All
statements contained in any certificate or other instrument delivered
by the Company or by an officer on behalf of the Company through the
date hereof pursuant to this Note, any agreement delivered in
connection herewith, or in connection with the transactions
contemplated by this Note shall constitute representations and
warranties by the Company hereunder. All agreements contained herein
shall survive indefinitely until, by their respective terms, they are
no longer operative, and in any event, so long as this Note is
outstanding. Notwithstanding any provision herein to the contrary, all
agreements, representations and warranties contained herein shall
expire upon closing of the preferred stock issuance referred to in
section 9(a) hereof.
12. Amendments and Waivers. Amendments of this Note may be made only by a
written agreement executed by the Company and the Holder, and
compliance with any term, covenant, agreement, condition or provision
set forth herein may be omitted or waived (either generally or in a
particular instance) only by a written agreement executed and delivered
to the Company on behalf of the Holder of this Note. Any such
amendment or waiver shall be binding upon the Holder, upon each future
Holder of this Note and upon the Company, whether or not this Note
shall have been marked to indicate such amendment or waiver, but any
substitute Note issued thereafter shall bear a notation referring to
any such amendment or continuing waiver.
13. Notices. Unless otherwise provided, all notices, consents or other
communications required or permitted to be given under this Note shall
be in writing and shall be deemed to have been duly given:
1. when delivered personally,
2. three business days after being mailed by first class mail,
postage prepaid, or
3. one business day after being sent by reputable overnight delivery
service, postage or delivery charges prepaid,
if to the Company at:
Sheldahl, Inc.
0000 Xxxxxxxx Xxxx
Xxxxxxxxxx, XX 00000-0000
Facsimile number: 000-000-0000
Attn: President
if to the Holder, at the last address or facsimile number of such
Holder as recorded in the Company's books.
Notices may also be given by facsimile and shall be effective on the
date transmitted if confirmed within 24 hours thereafter by a signed
original sent in the manner provided in the preceding sentence.
14. Successors and Assigns. Subject to compliance with applicable law,
this Note is assignable and transferable by the Holder only to the
Holder's Affiliates. This Note shall be binding upon the parties and
their respective successors and assigns.
15. Severability. Should any part of this Note (other than section 9
hereof) but not the whole of this Note for any reason be declared
invalid, such decision shall not affect the validity of any remaining
portion, which remaining portion shall remain in force and effect as if
this Note had been executed with the invalid portion thereof
eliminated, and it is hereby declared the intention of the parties that
they would have executed the remaining portion of this Note without
including any such part which may, for any reason, be hereafter
declared invalid.
16. Captions. The descriptive headings of the various sections or parts of
this Note are for convenience only and shall not affect the meaning or
construction of any of the provisions hereof.
17. Governing Law. The laws of the State of Minnesota shall govern this
Note. The Company irrevocably consents to the jurisdiction of the
state courts of Minnesota or the United States District Court of
Hennepin County, Minnesota. The Company and the Holder (or any other
Holder) hereby waive any and all rights any may have to a jury trial in
connection with any litigation commenced by or against the Holder (or any other
Holder) with respect to rights and obligations of the parties hereto.
IN WITNESS WHEREOF, each of the undersigned has caused this Note to be
executed and delivered on its behalf as of the date first above written.
XXXXXXXX, INC.
By: /s/ Xxxxxx X. Xxxxxxxxx
Name: Xxxxxx X. Xxxxxxxxx
Title: President/CEO
XXXXXXXXXXXX VENTURE PARTNERS V, L.P.
By: /s/ Xxxx X. Xxxxx
Name: Xxxx X. Xxxxx
Exhibit 9(b)
Notice of Conversion
ELECTION TO CONVERT
To Xxxxxxxx, Inc., a Minnesota corporation:
Reference is made to a note (the "Note") dated August 15, 2000 made by
Xxxxxxxx, Inc. to Xxxxxxxxxxxx Venture Partners V, L.P., the original of
which has been delivered to the Company with this notice of conversion.
Capitalized terms defined in the Note and used herein have the same meaning
herein as therein.
The undersigned Holder of the Note hereby irrevocably exercises the option to
convert the Note into common stock, par value $0.25 per share, of the
Company in accordance with the terms of section 9(b) of the Note, and directs
that the shares of Common Stock issuable and deliverable upon conversion,
together with any check in payment for fractional share, be issued in the
name of and delivered to the undersigned.
Date:
[Name of converting Holder]
By:
Authorized signatory
