Enliven Marketing Technologies Corp – ‘8-K/A’ for 9/8/00 – EX-2.2

On:  Wednesday, 11/1/00, at 2:28pm ET   ·   For:  9/8/00   ·   Accession #:  950123-0-9918   ·   File #:  0-27168

in

this entire Filing. an “Entity” Search.

Show

Documents searched

and

each “hit”. the 1st “hit”.

↓↑Hints

Amendment to Current Report   —   Form 8-K
Filing Table of Contents

Document/Exhibit                   Description                      Pages   Size 

 1: 8-K/A       Metacreations Corporation                              4     16K 
 2: EX-2.2      Promissory Note                                        5     19K 
 3: EX-2.3      Promissory Note                                        5     19K 

EX-2.2   —   Promissory Note

EX-2.2
1st Page of 5
TOC
↑Top
Previous
Next
↓Bottom
Just 1st
 
                                                               EXHIBIT 2.2

              THIS NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT
             OF 1933, AS AMENDED, OR ANY OTHER SECURITIES LAWS AND MAY
                NOT BE SOLD OR OTHERWISE DISPOSED OF OR TRANSFERRED BY PAYEE
                EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER
              SUCH LAWS OR IN A TRANSACTION EXEMPT FROM THE REGISTRATION
REQUIREMENT OF SUCH ACTS.                   

           THE ABILITY OF PAYEE TO TRANSFER THIS NOTE IS EXPRESSLY
  LIMITED BY THE PROVISIONS OF SECTION 4 HEREOF.

 PROMISSORY NOTE

$15,000,000                                               September 8, 2000     

   FOR VALUE RECEIVED, the undersigned, MetaCreations Corporation, a
Delaware corporation ("Obligor"), hereby promises to pay to Computer            
Associates International, Inc., a Delaware corporation ("Payee"), the           
principal amount of FIFTEEN MILLION DOLLARS ($15,000,000) (the "Original        
Principal Amount") or such lesser amount as determined in accordance with       
Section 1.1 below, on June 8, 2001 (the "Maturity Date") in lawful money of     
the United States of America by certified check or wire transfer to an account  
designated by Payee.                                                            

      This Promissory Note (this "Note") is Note No. 1 referred to in that
certain Stock Purchase Agreement, dated as of August 23, 2000 (the              
"Agreement") by and between the Payee and the Obligor with respect to all the   
outstanding capital stock of Viewpoint Digital, Inc. (the "Company").           
Capitalized terms used but not defined herein shall have the meanings ascribed  
to such terms in the Agreement.                                                 

    Section 1.  Reduction of Principal.  The Original Principal Amount
shall be subject to reduction in accordance with the following calculation:     

       The outstanding principal amount of this Note shall equal (a) (i) the
Original Principal Amount less (ii) the amount, if any, of losses incurred by   
the Company during the period commencing on the Closing Date and ending on the  
Maturity Date (the "Operating Period"), less (iii) the amount, if any, by       
which nine million six hundred thousand dollars ($9,600,000) exceeds the        
revenues of the Company during the Operating Period MULTIPLIED BY (b) the       
lesser of (x) 1 and (y) a fraction, the numerator of which is equal to the      
number of Offered Employees who remain employed by the Company on the Maturity  
Date and the denominator of which is equal to 95% of the number of Offered      
Employees; provided, that such numerator and denominator shall both be reduced  
by the number of Offered Employees who are involuntarily terminated by the      
Obligor prior to the Maturity Date; and further provided that the foregoing     

EX-2.2
2nd Page of 5
TOC
1st
Previous
Next
↓Bottom
Just 2nd

reductions, if any, set forth in (ii) and (iii) above shall be subject to and   
conditioned upon the Company having financial, personnel and other resources    
during the Operating Period which are substantially comparable to those         
resources which were available to the Company during the same period in         
1999-2000.                                                                      

  Section 2. Obligor's Offset Rights. Obligor shall have no offset
rights with respect to the outstanding principal amount of this Note and any    
amounts payable by the Seller pursuant to the Agreement or otherwise.           

    Section 3. Investment Representations. Payee understands that this
Note has not been registered under the Securities Act of 1933, as amended, or   
any other securities laws and the rules and regulations promulgated thereunder  
("Securities Act") and that the Obligor has no obligation to effect any such    
registration. Payee represents and warrants to the Obligor that it is an        
"accredited investor" as defined by the Securities Act and that it is           
acquiring this Note for its own account, for investment and not with a view to  
the distribution thereof. Payee agrees that it will not, and understands that   
under the Securities Act it may not, sell or otherwise dispose of or transfer   
this Note except pursuant to an effective registration statement under the      
Securities Act or in a transaction exempt from the registration requirements    
of the Securities Act.                                                          

   Section 4. Transfer of this Note. Payee may Transfer this Note in
whole, but not in part, provided that (i) until this Note is duly presented to  
the Obligor for registration of such transfer, the Obligor shall for all        
purposes be entitled to treat the Payee named herein as the holder thereof and  
(ii) any such transfer shall be subject to the other terms, restrictions and    
conditions set forth in this Note.                                              

     Under no circumstances may Payee Transfer this Note to a person who
is a competitor of Obligor, its subsidiaries or its affiliates. For purposes    
hereof, a competitor shall be deemed to be any Person who, directly or          
indirectly, owns, manages, operates, represents, promotes, consults for or is   
employed by, controls or participates in the ownership, operation, acquisition  
or management of any other business which is substantially similar to the       
business then being conducted by the Obligor or any of its subsidiaries         
anywhere in the world. Further, anything to the contrary notwithstanding,       
Payee may not Transfer this Note if such Transfer would violate any Securities  
Act.                                                                            

       Section 5. Audit. Within six months after the Operating Period, Payee
shall have the right to cause an independent auditing firm to commence an       
audit of the books and records of the Obligor at Payee's expense, provided      
that should the audit result in an adjustment of more than 10% of the revenue   
or loss incurred by the Company during the Operating Period, the cost of the    
audit shall be paid by the Obligor.                                             

      Section 6.  Amendment.  No amendment of this Note shall be effective
unless in writing and signed by the Obligor and the Payee.                      

    Section 7. Waiver. No waiver of any obligation or right under this
Note shall be effective unless set forth in a written instrument signed by the  
party against whom such waiver is sought to be enforced. No course of dealing   
between the Obligor and any holder of this Note or any delay on the part of     
the holder hereof exercising any rights hereunder shall operate as a            

2   

EX-2.2
3rd Page of 5
TOC
1st
Previous
Next
↓Bottom
Just 3rd

waiver of any right of the holder of this Note. Any waiver of rights hereto by  
either party shall not be deemed a continuing waiver or a waiver of other       
rights.                                                                         

       Section 8. Cancellation. After all principal and all other amounts at
any time owed on this Note have been paid in full, this Note shall be           
surrendered to the Obligor for cancellation and shall not be reissued.          

      Section 9. Covenants Bind Successors and Assigns. All the covenants,
stipulations, promises and agreements in this Note contained by or on behalf    
of the Obligor shall bind its successors and assigns, whether so expressed or   
not.                                                                            

Section 10. Governing Law. This Note shall be governed by and 
construed in accordance with the domestic laws of the State of New York,        
without giving effect to any choice of law or conflict of law provision or      
rule (whether of the State of New York or any other jurisdiction) that would    
cause the application of the laws of any jurisdiction other than the State of   
New York. Each party hereto consents to the jurisdiction of the federal or      
state courts located in the State of New York for the adjudication of any       
dispute arising hereunder.                                                      

      Section 11.  Headings.  The headings of the sections and subsections
of this Note are inserted for convenience only and do not constitute a part of  
this Note.                                                                      

    Section 12.  Notices.  Notices are to be delivered to the Payee at
the following address:                                                          

                       Computer Associates International, Inc.
             One Computer Associates Plaza
         Islandia, New York  11749
              Facsimile No.:  (631) 342-4866
     Attn:  Thomas Bennett

with a copy (which shall not constitute notice) to:                             

                       Computer Associates International, Inc.
             One Computer Associates Plaza
         Islandia, New York  11749
              Facsimile No.:  (631) 342-4866
      Attn:  General Counsel

Notices are to be delivered to the Obligor at the following address:            

         MetaCreations Corporation
  498 Seventh Avenue
         New York, New York  10018
              Facsimile No.:  (212) 201-0899
      Attn:  General Counsel

3   

EX-2.2
4th Page of 5
TOC
1st
Previous
Next
↓Bottom
Just 4th

with a copy (which shall not constitute notice) to:                             

               Milbank, Tweed, Hadley & McCloy
       1 Chase Manhattan Plaza
   New York, NY  10005
          Telephone:  (212) 530-5000
             Facsimile No.: (212) 530-5219
             Attn:  Mark L. Weissler, Esq.

      All notices pursuant to this Note must be in writing and sent to the
party to be notified by facsimile transmission with transmission verified, by   
certified or registered mail, return receipt requested, or by overnight         
delivery service with delivery verified, or by personal delivery, in each case  
with a copy by regular mail or facsimile transmission to the party's attorney   
as specified below, any such notice being effective upon receipt. Any party     
from time to time may change its address, facsimile number or other             
information for the purpose of notices to that party by giving notice           
specifying such change to the other party hereto.                               

       Section 13. Severability. In case any provision of this Note shall be
invalid, illegal or unenforceable, the validity, legality and enforceability    
of the remaining provisions of this Note shall not in any way be affected or    
impaired thereby.                                                               

4   

EX-2.2
Last Page of 5
TOC
1st
Previous
Next
↓Bottom
Just 5th

IN WITNESS WHEREOF the Obligor has caused this Note to be duly
executed and delivered as of the day and year first written above.              

ATTEST:                               METACREATIONS CORPORATION,                
       "Obligor"

/s/ Brian J. O'Donoghue            By: /s/ Tommy Bennett                  
------------------------------            ------------------------------        
                       Name: Tommy Bennett
                                Title: Senior Vice President

      The undersigned hereby consents to and agrees with the terms of this
Promissory Note.                                                                

               COMPUTER ASSOCIATES
                            INTERNATIONAL, INC., "Payee"

                  By: /s/ Robert E. Rice
                                  ------------------------------
                          Name: Robert E. Rice
                                    Title: Chief Executive Officer

5   

Dates Referenced Herein   and   Documents Incorporated by Reference

				Referenced-On Page
This ‘8-K/A’ Filing		Date		First		Last			Other Filings
		6/8/01		1
Filed on:		11/1/00
For Period End:		9/8/00		1					8-K,  8-K/A
		8/23/00		1
									List all Filings