General Statement of Beneficial Ownership — Schedule 13D
Filing Table of Contents
Document/Exhibit Description Pages Size
1: SC 13D General Statement of Beneficial Ownership 18 79K
2: EX-1 Agreement 1 9K
3: EX-2 Combinations Agreement 46 231K
4: EX-3 Sub. SEC. Prom. Note 1/29/97 13 53K
5: EX-4 Sub. SEC. Prom. Note 6/12/97 11 49K
6: EX-5 Sub. SEC. Prom Note 2/14/97 7 37K
7: EX-6 Amend & Restated Notes 2/14/97 9 48K
8: EX-7 Agreement & Option to Invest 13 51K
9: EX-8 Amend and Restated Notes 2/14/97, $300,000 9 47K
10: EX-9 Sub Convertible Prom. Note 9 47K
11: EX-10 Ltr of Intent 1 9K
EXHIBIT D
THE SECURITIES REPRESENTED BY THIS INSTRUMENT HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, OR QUALIFIED UNDER APPLICABLE STATE
SECURITIES LAWS AND HAVE BEEN TAKEN FOR INVESTMENT PURPOSES ONLY AND NOT WITH A
VIEW TO OR FOR SALE IN CONNECTION WITH ANY DISTRIBUTION THEREOF. THE SECURITIES
MAY NOT BE SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION AND
QUALIFICATION WITHOUT, EXCEPT UNDER CERTAIN SPECIFIC LIMITED CIRCUMSTANCES, AN
OPINION OF COUNSEL FOR THE HOLDER, CONCURRED IN BY COUNSEL FOR THE COMPANY, THAT
SUCH REGISTRATION AND QUALIFICATION ARE NOT REQUIRED.
SOCKET COMMUNICATIONS, INC.
SUBORDINATED CONVERTIBLE PROMISSORY NOTE
Newark, California
$500,000 June 12, 1997
SOCKET COMMUNICATIONS, INC., a Delaware corporation (the "COMPANY"), for
value received, hereby promises to pay to the order of Cetronic Aktiebolag
[Publ] or holder ("HOLDER") in lawful money of the United States at the address
of Holder set forth below, the principal amount of Five Hundred Thousand Dollars
($500,000), together with simple interest at the rate of eight percent (8%) per
annum (calculated on the basis of actual days elapsed and a year of 365 days).
Subject to the following sentence, accrued interest shall be payable in cash
only at the time the Company pays any portion of the principal amount of this
Note. If this Note is converted pursuant to Section 4 hereof, accrued interest
may be converted as set forth therein; any accrued interest that is not so
converted shall be payable in cash.
This Note has been executed in connection with a Combination Agreement
dated as of June 12, 1997 by and between the Company and the Holder (the
"COMBINATION AGREEMENT") pursuant to which the Company will acquire all of the
outstanding shares of the Holder and the Holder will become a wholly-owned
subsidiary of the Company.
The following is a statement of the rights of Holder and the conditions to
which this Note is subject, and to which the Holder hereof, by the acceptance of
this Note, agrees.
1. PAYMENTS; PREPAYMENTS.
(a) Subject to the provisions of Section 1(c) hereof, all principal,
interest and other amounts due hereunder shall be due and payable on the earlier
of (i) December 12, 1997 (the "MATURITY DATE") and (ii) the day on which this
Note becomes immediately due and payable pursuant to Section 10 hereof.
(b) This Note may be prepaid, in whole or in part, from time to time ten
(10) business days after Holder receives written notice of such prepayment from
the Company; Holder shall then have until the end of such ten (10) business day
period to notify the Company in writing that it wishes to convert all or part of
the outstanding principal and accrued interest under this Note into Common Stock
pursuant to Section 4 below. Prepayments shall be (i) reduced by any amounts
that Holder desires to so convert into Common Stock and then (ii) applied first
to outstanding interest, and then to principal.
Socket Communications, Inc.
Subordinated Convertible
Promissory Note
June 12, 1997
Page 2
(c) In the event that the Combination Agreement is terminated other than
pursuant to Section 7.01(d) or (j), the maturity Date of this Note shall be
extended to the business day which is ninety (90) days after the date of such
termination.
(d) upon payment in full of all principal and interest payable hereunder,
this Note shall be surrendered to Company for cancellation.
(e) In the event that the Combination Agreement is terminated and Sections
7.05(c) thereof is applicable, Cetronic shall convert outstanding principal and
accrued interest under this Note into Common stock of the Company in accordance
with the terms hereof and the Combination Agreement.
2. SUBORDINATION
(a) "Senior Indebtedness" means the principal of and premium, if any, and
interest on indebtedness of the Company incurred pursuant to the Promissory Note
and Loan Agreement, each dated as of July 5, 1995, between the Company and
CivicBank of Commerce. The company agrees and the Holder of this Note, by
acceptance thereof, agrees, expressly for the benefit of the holder of the
Senior Indebtedness, that, except as otherwise provided herein, upon (i) an
event of default under the Senior Indebtedness, or (ii) any dissolution, winding
up, or liquidation of the Company, whether or not in bankruptcy, insolvency or
receivership proceedings, the Company shall not pay, and the holder of such Note
shall not be entitled to receive, any amount in respect of the principal and
interest of such Note unless and until the Senior Indebtedness shall have been
paid or otherwise discharged. Upon (1) an event of default under the Senior
Indebtedness, or (2) any dissolution, winding up or liquidation of the Company,
any payment or distribution of assets of the Company, which the holder of this
Note would be entitled to receive but for the provisions hereof, shall be paid
by the liquidating trustee or agent or other person making such payment or
distribution directly to the holder of the Senior Indebtedness ratably according
to the aggregate amounts remaining unpaid on the Senior Indebtedness after
giving effect to any concurrent payment or distribution to the holder of the
Senior Indebtedness. Subject to the payment in full of the Senior Indebtedness
and until this Note is paid in full, the holder of this Note shall be subrogated
to the rights of the holder of the Senior Indebtedness (to the extent of
payments of distributions previously made to the holder of the Senior
Indebtedness pursuant to this Section 2(a)) to receive payments or distributions
of assets of the Company applicable to the Senior Indebtedness.
(b) This Section 2 is not intended to impair, as between the Company, its
creditors (other than the holder of the Senior Indebtedness) and the holder of
this Note, the unconditional and absolute obligation of the Company to pay the
principal of and interest on the Note or affect the relative rights of the
holder of this Note and the other creditors os the Company, other than the
holder of the Senior Indebtedness. Nothing in this Note shall prevent the
holder of this Note from exercising all remedies otherwise permitted by
applicable law upon default under the Note, subject to the rights, if any, of
the holder of the Senior Indebtedness in respect to cash, property or securities
of the Company received upon the exercise of any such remedy.
3. EVENTS OF DEFAULT. The Company's failure to pay (i) when due any principal
payment on the due date hereunder or (ii) any interest or other payment required
under the terms of this Note on the date due, and failure to make such payment
within five (5) business days of Company's receipt of Holder's written notice to
Company of such failure to pay, shall constitute an "Event of Default" under
this Note.
Socket Communications, Inc.
Subordinated Convertible
Promissory Note
June 12, 1997
Page 3
4. CONVERSION.
(a) In lieu of receiving cash payment for principal amounts and accrued
interest due under this Note, Holder shall have the right to convert outstanding
principal and accrued interest under this Note into Common Stock of the Company
at a conversion price per share equal to $1.00 (the "CONVERSION PRICE") at any
time on or prior to the Maturity Date.
(b) In addition to the conversion right provided in Section 4(a) above,
upon an Event of Default, in lieu of receiving cash payment for principal
amounts and accrued interest due under this Note, Holder shall have the right to
convert outstanding principal and accrued interest under this Note into Common
Stock of the Company at a conversion price per share equal to the lower of
(i) the Conversion Price or (ii) 65% of the average closing price of the
Company's Common Stock on the OTC Bulletin Board or Nasdaq SmallCap market, as
applicable, for the five (5) business days prior to the date of the Event of
Default.
(c) Holder may exercise its conversion right by providing written notice
to the Company of Holder's intention to exercise its conversion right and the
amount of principal and accrued interest that it wishes to convert (the
"CONVERSION AMOUNT") at least ten (10) days prior to the date on which it wishes
to convert (the "CONVERSION DATE") (unless such notice is given pursuant to the
terms of Section 1(b) above, in which event notice shall comply with the terms
thereof). No fractional shares of Common Stock shall be issued upon conversion
of this Note. Promptly after the conversion of this Note, the Holder shall
surrender this Note, duly endorsed, at the principal office of Company. At its
expense, Company shall, as soon as practicable thereafter (or as otherwise noted
in the provisions above), issue and deliver to such Holder at such principal
office a certificate or certificates for the number of shares of such Common
Stock to which the Holder shall be entitled upon such conversion (bearing such
legends as are required by applicable state and federal securities laws in the
opinion of counsel to Company). In addition, unless this Note has been fully
converted, a new Note representing the principal amount that shall not have been
converted into Common Stock shall also be issued to Holder as soon as possible
thereafter. Upon conversion of this Note in full, Company shall be forever
released from all its obligations and liabilities under this Note including
principal, interest and any other amounts due and owing pursuant hereto. Any
notice from the Holder of an election to convert by the Company shall be
irrevocable.
(d) If at any time the number of authorized but unissued shares of Common
Stock shall not be sufficient to effect the conversion of the entire outstanding
principal amount and accrued interest under this Note, Company will use its best
efforts to take such corporate action as may be necessary, in the opinion of its
counsel, to increase its authorized but unissued shares of Common Stock to such
number of shares as shall be sufficient for such purposes.
(e) In the event that the Combination Agreement is terminated and Section
7.05(c) thereof is applicable, Cetronic shall convert outstanding principal and
accrued interest under this Note into Common Stock of the Company in accordance
with the terms hereof and the Combination Agreement.
5. REGISTRATION RIGHT.
(a) Following the Maturity Date, and within a reasonable amount of time
following the conversion by Holder of any outstanding principal and accrued
interest under this Note into Common Stock of the Company, the Company will use
reasonable efforts to (i) file a registration statement under the
Socket Communications, Inc.
Subordinated Convertible
Promissory Note
June 12, 1997
Page 4
Securities Act of 1933, as amended (the "SECURITIES ACT") registering such
shares for resale to the public, (ii) have such registration statement
declared effective by the Securities and Exchange Commission, (iii) register
and qualify the securities covered by such registration statement under the
Blue Sky laws of such jurisdictions as shall be reasonably requested by the
Holder (provided that the Company shall not be required in connection
therewith or as a condition thereto to qualify to do business or to file a
general consent to service of process in any such states or jurisdictions,
unless the Company is already subject to service in such jurisdiction and
except as may be required by the Securities Act), (iv) cause all securities
registered pursuant hereunder to be listed on each securities exchange on
which similar securities issued by the Company are then listed, and (v) file
updates to such registration statement as necessary to keep it effective
until the date that all remaining such shares may be sold to the public
without registration within a period of 90 days; PROVIDED THAT, the Company
may suspend such registration for up to two (2) periods of not more than 90
days each in any 12-month period if necessary (x) to enable the Company to
update the registration statement or (y) to undertake another sale of
securities.
(b) All Registration Expenses (as hereafter defined) incurred in
connection with any registration pursuant to this Section 5 shall be borne by
the Company. "Registration Expenses" shall mean all expenses incurred by the
Company in complying with this Section 5, including, without limitation, all
registration, qualification and filing fees, printing expenses, fees and
disbursements of counsel for the Company, the reasonable costs of one special
legal counsel to represent Holder in any such registration, and blue sky fees
and expenses. "Registration Expenses" shall not include (if applicable) any
underwriting discounts or selling commissions.
(c) INDEMNIFICATION.
(i) The Company will indemnify the Holder, each of its officers and
directors and partners, and each person controlling such Holder within the
meaning of Section 15 of the Securities Act, with respect to which registration,
qualification or compliance has been effected pursuant to this Section 5,
against all expenses, claims, losses, damages or liabilities (or actions in
respect thereof), including any of the foregoing incurred in settlement of any
litigation, commenced or threatened, arising out of or based on any untrue
statement (or alleged untrue statement) of a material fact contained in any
registration statement, prospectus, preliminary prospectus, offering circular or
other document, or any amendment or supplement thereto, incident to any such
registration, qualification or compliance, or based on any omission (or alleged
omission) to state therein a material fact required to be stated therein or
necessary to make the statements therein, in light of the circumstances in which
they were made, not misleading, or any violation or any alleged violation by the
Company of any rule or regulation promulgated under the Securities Act or the
Exchange Act or any state securities law applicable to the Company in connection
with any such registration, qualification or compliance, and the Company will
reimburse each such Holder, each of its officers and directors, and each person
controlling such Holder, for any legal and any other expenses reasonably
incurred in connection with investigating, preparing or defending any such
claim, loss, damage, liability or action, as such expenses are incurred,
provided that the Company will not be liable in any such case to the extent that
any such claim, loss, damage, liability or expense arises out of or is based on
any untrue statement or omission or alleged untrue statement or omission, made
in reliance upon and in conformity with written information furnished to the
Company by an instrument duly executed by such Holder or controlling person and
stated to be specifically for use therein.
Socket Communications, Inc.
Subordinated Convertible
Promissory Note
June 12, 1997
Page 5
(ii) The Holder will indemnify the Company, each of its directors and
officers, and each person who controls the Company within the meaning of Section
15 of the Securities Act against all claims, losses, damages and liabilities (or
actions in respect thereof) arising out of or based on any untrue statement (or
alleged untrue statement) of a material fact contained in any such registration
statement, prospectus, offering circular or other document, or any omission (or
alleged omission) to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading, and will reimburse
the Company, such directors, officers or control persons for any legal or any
other expenses reasonably incurred in connection with investigating or defending
any such claim, loss, damage, liability or action, as such expenses are
incurred, in each case to the extent, but only to the extent, that such untrue
statement (or alleged untrue statement) or omission (or alleged omission) is
made in such registration statement, prospectus, offering circular or other
document in reliance upon and in conformity with written information furnished
to the Company by an instrument duly executed by such Holder and stated to be
specifically for use therein.
6. RIGHT OF PARTICIPATION. Upon the first (and only the first) offering (or
series of related offerings in any 90-day period) by the Company subsequent to
the date hereof of any shares of, or securities convertible into or exercisable
for any shares of, any class of its capital stock ("SECURITIES"), the Company
shall offer to the Holder and each of its affiliates that holds a Subordinated
Convertible Promissory Note issued by the Company (collectively, the "AFFILIATED
HOLDERS") the option to purchase up to an aggregate of $2,000,000 worth of the
offered Securities not to exceed 50% of the offering (the "AFFILIATED HOLDER
MAXIMUM"), in accordance with the following provisions:
(a) The company shall deliver a notice to the Holder stating (i) its bona
fide intention to offer such Securities, (ii) the number of such Securities to
be offered, (iii) the price, if any, for which it proposes to offer such
Securities, and (iv) the terms of such offer. The Holder will distribute this
notice to the other Affiliated Holders, and the Affiliated Holders will
apportion the Affiliated Holder Maximum amongst themselves as they see fit.
(b) Within fifteen (15) calendar days after receipt of the Notice, the
Holder will notify the Company of the portion of the Affiliated Holder Maximum
that the Affiliated Holders wish to purchase, along with a detailed list of the
apportionment of such Affiliated Holder maximum amongst the Affiliated Holders.
(c) The right of participation in this Section 6 shall not be applicable
(i) to the issuance or sale of shares of capital stock (or options therefor) to
employees, officers, directors or consultants for the primary purpose of
soliciting or retaining their services, (ii) to the issuance or sale of the
Company's securities to leasing entities or financial institutions in connection
with commercial leasing or borrowing transactions, or (iii) to conversions of
convertible securities.
7. REPRESENTATIONS AND WARRANTIES OF HOLDER. By its acceptance hereof, Holder
represents and warrants to Company that:
(a) Holder has been advised that this Note and the Common Stock of the
Company issuable upon conversion of the Note (with the Note and such Common
Stock being hereinafter collectively referred to as the "SECURITIES") have not
been registered under the Securities Act, or any state securities laws and,
therefore, cannot be resold unless such Securities are registered under the
Securities Act and applicable state securities laws or unless an exemption from
such registration requirements is available. Holder has not been
Socket Communications, Inc.
Subordinated Convertible
Promissory Note
June 12, 1997
Page 6
formed solely for the purpose of making this investment and is acquiring the
Securities for its own account for investment, not as a nominee or agent, and
not with a view to, or for resale in connection with, the distribution
thereof. Holder has such knowledge and experience in financial and business
matters that such Holder is capable of evaluating the merits and risks of
such investment, is able to incur a complete loss of such investment and is
able to bear the economic risk of such investment for an indefinite period of
time.
(b) Holder acknowledges that Company has given Holder access to all
documents and other information required for Holder to make an informed decision
with respect to the acceptance of the Securities. In this regard, Holder
acknowledges that it has received and reviewed, among other things, the
following documents filed by the Company with the Securities and Exchange
Commission: (i) the Company's Quarterly Report on Form 10-QSB for the quarter
ended March 31, 1997; (ii) the Company's Annual Report on Form 10-KSB for the
year ended December 31, 1996; and (iii) the Company's Proxy Statement relating
to its 1997 Annual Meeting of Stockholders.
(c) At the time of both the offer and execution of the Note, the Holder
was neither a United States citizen nor a person in the United States.
(d) During the term of the Note, the Holder does not intend to sell any of
the Company Common Stock issuable upon conversion of the Note to any United
States citizen or person in the United States.
8. ATTORNEYS' FEES. If the indebtedness represented by this Note or any part
thereof is collected in bankruptcy, receivership or other judicial proceedings
or if this Note is placed in the hands of attorneys for collection after
default, Company agrees to pay, in addition to the principal and interest
payable hereunder, reasonable attorneys' fees and costs incurred by Holder.
9. NOTICES. Except as otherwise provided herein, all notices, requests,
demands, consents, instructions or other communications to or upon the Company
or Holder hereunder shall be by telecopy or in writing and telecopied, mailed or
delivered to each party at telecopier number or its address set forth below (or
to such other telecopy number or address as the recipient of any notice shall
have notified the other in writing). All such notices and communications shall
be effective (a) when sent by Federal Express or other overnight service of
recognized standing, on the business day following the deposit with such service
(if sent to an address in the same country as the sender) or on the third
business day following the deposit with such service (if sent to an address in a
different country from the sender); (b) through the United States Postal
Service, upon receipt; (c) when delivered by hand, upon delivery; and (d) when
telecopied, upon confirmation of receipt.
HOLDER: Cetronic Aktiebolag [Publ]
------ Box 153, S-864
22 Matfors
SWEDEN
Attention: President
011-46-6067-1300 (telephone)
011-46-6067-1309 (telecopy)
Socket Communications, Inc.
Subordinated Convertible
Promissory Note
June 12, 1997
Page 7
COMPANY: Socket Communications, Inc.
------- 37400 Central Court
Newark, CA 94560
Attention: Chief Financial Officer
(415) 744-2700 (telephone)
(415) 744-2727 (telecopy)
10. ACCELERATION. This Note shall become immediately due and payable (a) upon
an Event of Default, (b) if the Company commences any proceeding in bankruptcy
or for dissolution, liquidation, winding-up, composition or other relief under
state or federal bankruptcy laws, or (c) if such proceedings are commenced
against the Company, or a receiver or trustee is appointed for the Company or a
substantial part of its property, and such proceeding or appointment is not
dismissed or discharged within 60 days after its commencement.
11. WAIVERS. Company hereby waives presentment, demand for performance, notice
of non-performance, protest, notice of protest and notice of dishonor. No delay
on the part of Holder in exercising any right hereunder shall operate as a
waiver of such right or any other right.
12. PAYMENT. Payment shall be made in lawful tender of the United States.
13. USURY. In the event any interest is paid on this Note which is deemed to
be in excess of the then legal maximum rate, then that portion of the interest
payment representing an amount in excess of the then legal maximum rate shall be
deemed a payment of principal and applied against the principal of this Note.
14. GOVERNING LAW. This Note and all actions arising out of or in connection
with this Note shall be governed by and construed in accordance with the laws of
the State of California, without regard to the conflicts of law provisions of
the State of California or of any other state or country.
15. SUCCESSORS AND ASSIGNS.
(a) The rights and obligations of the Company and the Holder of this Note
shall be binding upon and benefit the successors, assigns, heirs, administrators
and transferees of the parties.
(b) Holder shall not transfer this Note without the prior written consent
of Company, except that Holder may transfer the Note without such prior written
consent to a collection agency following an Event of Default.
Socket Communications, Inc.
Subordinated Convertible
Promissory Note
June 12, 1997
Page 8
(c) Neither this Note nor any of the rights, interests or obligations
hereunder may be assigned, by operation of law or otherwise, in whole or in
part, by Company without the prior written consent of the Holder except in
connection with an assignment in whole to a successor corporation to Company,
provided that such successor corporation acquires all or substantially all of
Company's property and assets and Holder's rights hereunder and under the
Security Agreement are not impaired.
SOCKET COMMUNICATIONS, INC.
Signature:
-------------------------
Name:
------------------------------
Title:
-----------------------------
Date:
------------------------------
Agreed and Accepted:
CETRONIC AKTIEBOLAG [PUBL]
Signature:
------------------------------
Name:
-----------------------------------
Title:
----------------------------------
Date:
-----------------------------------
EXHIBIT D
FIRST AMENDMENT TO
SUBORDINATED CONVERTIBLE PROMISSORY NOTE
THIS FIRST AMENDMENT TO SUBORDINATED CONVERTIBLE PROMISSORY NOTE (this
"AMENDMENT"), dated as of September 15, 1997, is entered into by and between
SOCKET COMMUNICATIONS, INC., a Delaware corporation (the "COMPANY"), and
CETRONIC AKTIEBOLAG [PUBL] ("HOLDER").
WHEREAS, the Company issued to Holder a Subordinated Convertible Promissory
Note dated June 12, 1997 in the principal amount of $500,000;
WHEREAS, the Company and Holder wish to amend the Note to subordinate the
indebtedness of the Company to Holder under the Note to the indebtedness of the
Company to World Trade Finance, Inc. ("WORLD TRADE") under financial
accommodations World Trade proposes to provide to the Company.
NOW, THEREFORE, in consideration of the foregoing and the mutual agreements
set forth herein, the Company and Holder hereto agree as follows:
SECTION 1. AMENDMENT TO NOTE. Sections 2(a) and 2(b) of the Note are
hereby amended to read in their entirety as follows:
"(a) "Senior Indebtedness" means (A) the principal of and premium, if
any, and interest on indebtedness of the Company incurred pursuant to the
Promissory Note and Loan Agreement, each dated as of July 5, 1995, between
the Company and CivicBank of Commerce; and (B) all present and future
indebtedness, obligations, liabilities, claims, rights and demands of any
kind which may be now or hereafter owing from the Company to World Trade in
connection with that certain Note in the amount of $500,000 (or such lesser
amount as the Company and World Trade may finally agree) issued by the
Company in favor of World Trade and a related Commercial Security Agreement
and Commercial Pledge Agreement between the Company and World Trade,
including, without limitation, all principal, all interest, all costs and
attorneys' fees, all sums paid for the purpose of protecting World Trade's
rights in security (such as paying for insurance on collateral if the owner
fails to do so), and all other obligations of the Company to World Trade,
secured or unsecured, of any nature whatsoever. The Company agrees and the
holder of this Note, by acceptance thereof, agrees, expressly for the
benefit of the holder of the Senior Indebtedness, that, except as otherwise
provided herein, upon (i) an event of default under the Senior
Indebtedness, or (ii) any dissolution, winding up, or liquidation of the
Company, whether or not in bankruptcy, insolvency or receivership
proceedings, the Company shall not pay, and the holder of such Note shall
not be entitled to receive, any amount in respect of the principal and
interest of such Note unless and until the Senior Indebtedness shall have
been paid or otherwise discharged. Upon (1) an event of default under the
Senior Indebtedness, or (2) any dissolution, winding up or liquidation of
the Company, any payment or distribution of assets of the Company, which
the holder of this Note would be entitled to receive but for the provisions
hereof, shall be paid by the liquidating trustee or agent or other person
making such payment or distribution directly to the holders of the Senior
Indebtedness ratably according to the aggregate amounts remaining unpaid on
the Senior Indebtedness after giving effect to any concurrent payment or
distribution to the holders of the Senior Indebtedness. Subject to the
payment in full of the Senior Indebtedness and until this Note is paid in
full, the holder of this Note shall be subrogated to the rights of the
holders of the Senior Indebtedness (to the extent of payments or
distributions previously made to the holders of the Senior Indebtedness
pursuant to this Section 2(a)) to receive payments or distributions of
assets of the Company applicable to the Senior Indebtedness.
First Amendment to Subordinated
Convertible Promissory Note
Page 2
(b) This Section 2 is not intended to impair, as between the
Company, its creditors (other than the holders of the Senior Indebtedness)
and the holder of this Note, the unconditional and absolute obligation of
the Company to pay the principal of and interest on the Note or affect the
relative rights of the holder of this Note and the other creditors of the
Company, other than the holders of the Senior Indebtedness. Nothing in
this Note shall prevent the holder of this Note from exercising all
remedies otherwise permitted by applicable law upon default under the Note,
subject to the rights, if any, of the holders of the Senior Indebtedness in
respect to cash, property or securities of the Company received upon the
exercise of any such remedy."
SECTION 2. NO OTHER MODIFICATION. With the exception of the changes to
the Note made herein, this Amendment in no way modifies the terms of the Note.
SECTION 3. MISCELLANEOUS.
(a) COUNTERPARTS. This Amendment may be executed in one or more
counterparts, each of which shall be deemed to be an original, but all of
which taken together shall constitute one and the same agreement.
(b) GOVERNING LAW. This Amendment shall be governed by, and
construed in accordance with, the laws of the State of California as
applied to agreements made and performed in California by residents of the
State of California without regard to the conflicts of law provisions of
the State of California or of any other state or country.
(c) SEVERABILITY. If any term, provision, covenant or restriction
of this Amendment is held by a court of competent jurisdiction or other
authority to be invalid, void or unenforceable, the remainder of the terms,
provisions, covenants and restrictions of this Amendment shall remain in
full force and effect and shall in no way be affected, impaired or
invalidated.
First Amendment to Subordinated
Convertible Promissory Note
Page 3
IN WITNESS WHEREOF, the Company and Holder have caused this Amendment to be
executed as of the date and year first above written.
SOCKET COMMUNICATIONS, INC.
By:
---------------------------------------
Charlie Bass,
Acting President and
Chief Executive Officer
CETRONIC AKTIEBOLAG [PUBL]
Signature:
---------------------------------
Name:
-------------------------------------
Title:
------------------------------------
Dates Referenced Herein and Documents Incorporated by Reference
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