General Statement of Beneficial Ownership — Schedule 13D
Filing Table of Contents
Document/Exhibit Description Pages Size
1: SC 13D General Statement of Beneficial Ownership 19 82K
2: EX-1 Letter Agreement 3 13K
3: EX-2 Registration Rights Agreement 7 30K
4: EX-3 Letter Agreement Dated 11/12/98 2 11K
5: EX-4 Promissory Note 6 33K
6: EX-5 Renewal, Extension & Revision 4 22K
EXHIBIT 4
PROMISSORY NOTE
$1,400,000.00 April 1, 1998
FOR VALUE RECEIVED, the undersigned, MB SOFTWARE CORPORATION, a Colorado
corporation, ("Maker"), promises to pay to IMAGINE INVESTMENTS, INC., a Delaware
corporation ("Payee"), the principal sum of ONE MILLION FOUR HUNDRED THOUSAND
AND NO/100 DOLLARS ($1,400,000.00), or if less, all such sums as may have been
advanced and be outstanding hereunder, together with interest accrued thereon
(calculated on the basis of a 365-day year) at a rate of 10% per annum from the
date hereof until this Promissory Note (the "Note") is paid in full. Interest on
this Note shall only accrue on and after the date of any advancement hereunder.
1. Payment. Unless otherwise provided herein the Maker shall on or before
-------
October 1, 1998, shall repay this Note by: (a) paying cash equal to the
principal and all accrued and outstanding interest on this Note; or, (b) if
Maker has issued 200,000 shares of preferred stock as herein defined in
connection with its acquisition of Payee's membership interest in Healthcare
Innovations, LLC, and if no event of default exists, issuing 140,000 duly
authorized, fully paid, and nonassessable shares of Preferred Stock plus paying
cash equal to all accrued and outstanding interest due on the Note. Any payment
shall be made to Payee at Imagine Investments, 8150 N. Central Expressway, Ste.
1901, Dallas, Texas 75206. All past due payments on this Note shall bear
interest at the Maximum Rate, as hereafter defined.
2. Prepayment. Maker may at its sole option prepay all of this Note
----------
before maturity without penalty or premium.
3. Senior Debt. The obligation of Maker hereunder shall for all purposes
-----------
be considered senior indebtedness of Maker. All contractual obligations or
indebtedness of Maker any subsidiary thereof shall be subordinate to the
obligation of Maker hereunder. Without the written consent of Payee, in its sole
discretion, no payments may be made, directly or indirectly, by Maker or any of
its subsidiaries on any loans or indebtedness of Maker or its subsidiaries to
Maker's officers, directors or shareholders (other than payee or his successors
and assigns) or their respective affiliates while any portion of the principal
balance and/or accrued interest on this Note is outstanding.
4. Events of Default and Remedies. At the option of Payee, the entire
------------------------------
principal balance of, together with all accrued and unpaid interest on, this
Note shall at once become due and payable, without further notice or demand,
upon the occurrence at any time of any of the following events of default
("Events of Default").
(i) Failure of Maker to make any payment of accumulated interest and
principal on this Note as and when the same becomes due and payable in
accordance with the terms hereof;
(ii) Breach of any of the representations or covenants of Payee in
the Loan Agreement or Stock Pledge Agreement;
(iii) Failure of Maker to perform any covenant, agreement, or
condition contained herein, and such failure continues for a period of ten (10)
days after the receipt by Maker of written notice from Payee of the occurrence
of such failure; or
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(iv) Maker shall (a) become insolvent, (b) voluntarily seek, consent
to, acquiesce in the benefit or benefits of any Debtor Relief Law (as
hereinafter defined) or (c) become party to (or be made the subject of) any
proceeding provided by any Debtor Relief Law, other than as a creditor or
claimant, that could suspend or otherwise adversely affect the rights of Payee
granted hereunder (unless in the event such proceeding is involuntary, the
petition instituting the same is dismissed within 90 days of the filing of the
same). As used herein, the term "Debtor Relief Law" means the Bankruptcy Code of
the United States of America and all other applicable liquidation,
conservatorship, bankruptcy, moratorium, rearrangement, receivership,
insolvency, reorganization or similar debtor relief laws from time to time in
effect affecting the rights of creditors generally.
In the event any one or more of the Events of Default specified above 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, or by other appropriate
proceedings, whether for the specific performance of any covenant or agreement
contained in this Note, or to enforce any other legal and equitable right of the
holder of this Note.
5. Stock. The term "Preferred Stock" means Class A Senior Cumulative
-----
Convertible Participating Preferred Stock, par value $10 per share, of Maker
which Preferred Stock has the following terms:
Priority: Senior to all other capital stock of Maker as to
-------- payment of dividends, redemption, and (except as
described under the caption "Liquidation Preference")
liquidation preference
Dividends: Cumulative dividends at the rate of $1.00 per annum,
--------- payable quarterly.
Voting Rights: Generally non-voting except as required by law, as
------------- described under the captions "Consequences of Failure
to Redeem" and "Certain Restrictions on Maker"
Redemption Rights: Redeemable at option of holder at any time after April
----------------- 1, 2000, if not converted into common stock by April 1,
2000.
Redemption Price: $10 per share plus accrued and unpaid dividends.
----------------
Consequences
------------
of Failure to Redeem: Holders of Preferred Stock have right to elect majority
-------------------- of the board of directors of Maker
Liquidation
-----------
Preference: The sum of (a) $10 per share plus accrued and unpaid
---------- dividends plus (b) after $20 million has been paid to
holders of common stock, an amount equal to the amount
paid under clause (a) plus (c) 30% of all liquidation
proceeds remaining after the foregoing payments
Conversion: At the time a Triggering Event occurs, the 340,000
---------- shares of Preferred Stock will be convertible, at the
option of the holder, into the Conversion Percentage of
the common stock outstanding after such conversion (on
a fully-diluted basis)
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Triggering Events: The first to occur of (a) the sale of all or
----------------- substantially all of the assets of Maker (the "Sale
Triggering Event"), (b) a Change in Control of Maker
(as defined below) (the "Change in Control Triggering
Event"), (c) the voluntary or involuntary dissolution
of Maker (the "Dissolution Triggering Event"), or (d)
April 1, 2000 (the "Year 2000 Triggering Event")
Conversion
----------
Percentage: The "Conversion Percentage" will be (a) 30% in the
---------- case of the Year 2000 Triggering Event and (b) 30%, as
it may be adjusted pursuant to the following
calculations, in the event of any other Triggering
Event:
First, determine the Future Maker Value (as defined
below) at the time of the Triggering Event
Second, subtract the Redemption Price, as defined
above, at the date of the Triggering Event from $6
Million, which is the "Current Preferred Value" (the
result being called the "Excess Preferred Value")
Third, if the Excess Preferred Value is zero or less,
the Conversion Percentage is 30% and no further
calculations are necessary; if the Excess Preferred
Value is positive, divide the Excess Preferred Value by
the Future Maker Value (the result being called the
"Conversion Adjustment")
Fourth, subtract the Conversion Adjustment from 30% and
the result is the Conversion Percentage
The following hypothetical is included for illustrative
purposes:
Assumptions: Future Maker Value = $100 million
Redemption Price at date of Triggering Event = $4
million
Current Preferred Value = $6 million
Excess Preferred Value = $2 million (Current Preferred
Value - Redemption Price)
Conversion Adjustment = 2% ($2 million/$100 million)
Conversion Percentage = 28% (30% - 2%)
Future Maker Value: "Future Maker Value" is, with respect to (a) a Sale
------------------ Triggering Event, all amounts received or to be
received by Maker as a result of such transaction
(including the amount of obligations of Maker as a
result of such transaction (including the amount of
obligations of Maker assumed by the purchaser) plus, to
the extent not transferred in such transaction,the fair
value of all remaining assets of Maker plus all amounts
to be received from the purchaser or its affiliates by
officers, directors, and shareholders of Maker or their
affiliates pursuant to agreements entered into in
connection with or in anticipation of such sale,
regardless of whether characterized as being for
services, non-competition covenants, or otherwise, to
the extent the consideration therefor exceeds the fair
value thereof; (b) a Change in Control Triggering
Event, the sum of (i) the product of the highest per
share consideration received by a holder of Common
Stock in such transaction multiplied by the number of
shares (on a fully-diluted
3
basis) of Common Stock outstanding at the date of such
Triggering Event plus (ii) all amounts to be received
from the purchaser or its affiliates by officers,
directors, and shareholders of Maker or their
affiliates pursuant to agreements entered into in
connection with or in anticipation of such sale,
regardless of whether characterized as being for
services, non-competition covenants, or otherwise, to
the extent the consideration therefor exceeds the fair
value thereof, and (c) a Dissolution Triggering Event,
all amounts available for distribution to shareholders
after paying all bona fide debts and obligations of
Maker, including amounts payable to the holders of
Preferred Stock
Certain Restrictions
--------------------
on Maker: Maker does not have authority to (a) issue any capital
-------- stock that is pari passu with or senior to the
Preferred Stock with respect to dividends, redemption,
or (except as described under the caption "Liquidation
Preference") liquidation preference, (b) fail to have
reserved sufficient shares to permit full conversion of
the Preferred Stock, (c) issue any capital stock that
would cause there to be insufficient shares to permit
full conversion of the Preferred Stock
Change in Control: Each of the following events is a "Change in Control":
----------------- (a) a merger or consolidation of Maker with any other
entity as a result of which the holders of Common Stock
do not own (on a fully-diluted basis) a majority of the
outstanding capital stock or other equity interests of
the surviving entity; (b) any event or series of events
that causes any person or entity, together with its
affiliates and associates, to be the beneficial owner
of a majority of the outstanding securities of Maker
that have the right to vote generally in the election
of directors of Maker (for purposes of this definition,
"voting securities") or that results in any person or
entity that currently owns a majority of the
outstanding voting securities of Maker increasing its
ownership percentage by 5% or more; provided, however,
that neither the issuance of Preferred Stock nor the
issuance of common stock upon conversion of Preferred
Stock shall be an issuance or transfer of voting
securities or securities convertible into voting
securities for purposes of this clause the issuance or
transfer by Maker (in one transaction or a series of
transactions) of; (c) any reclassification of
securities of Maker or any recapitalization of Maker
that, in either case, has the effect of increasing the
percentage of the outstanding voting securities of
Maker that is beneficially owned by any shareholder of
Maker by 5% or more; or (d) any acquisition (pursuant
to a tender offer or otherwise) of securities of Maker
that results in any person or entity, together with its
affiliates and associates, being the beneficial owner
of a majority of the then outstanding voting securities
of Maker or that results in any person or entity that
currently owns a majority of the outstanding voting
securities of Maker increasing the percentage of
outstanding voting securities of Maker by 5% or more.
The term "beneficial owner" means, with respect to any
security, a person or entity who has an economic
interest in such security, has the right to acquire
such security (including by virtue of owning
convertible securities, options, or warrants, whether
such right is immediately exercisable or subject to
certain conditions,
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including the lapse of time), has the right to vote or
direct the voting of such security, or has the right to
dispose or direct the disposition of such security; the
term "outstanding" includes securities that, pursuant
to the foregoing definition, are deemed beneficially
owned, regardless of whether actually issued and
outstanding; and the terms "associate" and "affiliate"
have the meaning given them in regulations promulgated
by the Securities and Exchange Commission under the
Securities Act of 1934, as amended
Certain Notices: Maker will give holders of Preferred Stock advance
--------------- written notice of any Sale Triggering Event or Change
in Control Triggering Event, any record date relating
to any such Triggering Event, any or event that could
give rise to either such Triggering Event in order to
permit the holders to convert their shares of Preferred
Stock prior to the occurrence of such Triggering Event
if they so desire
6. Waiver. Except as expressly provided herein, Maker, and each surety,
------
endorser, guarantor and other party ever liable for the payment of any sum of
money payable on this Note, jointly and severally, waive demand, presentment,
protest, notice of nonpayment, notice of intention to accelerate, notice of
protest and any and all lack of due diligence or delay in collection or the
filing of such hereon which may occur.
7. Cumulative Right. No delay on the part of the holder of this Note in
----------------
the exercise of any power or right under this Note shall operate as a waiver
thereof, nor shall a single or partial exercise of any other power or right.
Enforcement by the holder of this Note of any security for the payment hereof
shall not constitute any election by it of remedies so as to preclude the
exercise of any other remedy available to it.
8. Notices. Any notice or demand given hereunder by the holder hereof
-------
shall be deemed to have been given and received (i) when actually received by
Maker, if delivered in person or by facsimile transmission, or (ii) if mailed,
on the earlier of the date actually received or (whether ever received or not)
three Business Days (as hereinafter defined) after a letter containing such
notice, certified or registered, with postage prepaid, addressed to Maker, is
deposited in the United States mail. The address of Maker is 2225 E. Randol Mill
Road, Ste. 305, Arlington, Texas 76011, or such other address as Maker shall
advise the holder hereof by certified or registered letter by this same
procedure. "Business Day" means every day which is not a Saturday or legal
holiday in Arlington, Texas.
9. Successors and Assigns. This Note and all covenants, promises and
----------------------
agreements contained herein shall be binding upon and inure to the benefit of
the respective legal representatives, personal representative, devisees, heirs,
successors and assigns of Payee and Maker.
10. GOVERNING LAW. THIS NOTE SHALL BE GOVERNED BY AND CONSTRUED IN
-------------
ACCORDANCE WITH THE LAWS OF THE STATE OF TEXAS. IN CASE ANY ONE OR MORE OF THE
PROVISIONS CONTAINED IN THIS NOTE SHALL FOR ANY REASON BE HELD TO BE INVALID,
ILLEGAL OR UNENFORCEABLE IN ANY RESPECT, SUCH INVALIDITY, ILLEGALITY OR
UNENFORCEABILITY SHALL NOT AFFECT ANY OTHER PROVISION HEREOF.
5
11. Attorneys' Fees and Costs. In the event an Event of Default shall
-------------------------
occur, and in the event that thereafter this Note is placed in the hands of any
attorney for collection, or in the event this Note is collected in whole or in
part through legal proceedings of any nature, then and in any such case, Maker
promises to pay all costs of collection, including, but not limited to,
reasonable attorneys' fees incurred by the holder hereof on account of such
collection, whether or not suit is filed.
12. Headings. The headings of the sections of this Note are inserted for
--------
convenience only and shall not be deemed to constitute a part hereof.
13. Maximum Rate. The term "Maximum Rate" as used herein means the higher
------------
of the maximum interest rate allowed by applicable United States, Texas law or
any applicable law, as amended from time to time, in effect on the date for
which a determination of interest accrued hereunder is made. The determination
of the maximum rate permitted by applicable Texas law shall be made pursuant to
the indicated rate ceiling as defined in Tex. Rev. Civ. Stat. Ann. art.
5069-1.04 or any successor statute.
14. Limitation on Agreements. All agreements between the Maker and the
------------------------
Payee, whether now existing or hereafter arising and whether written or oral,
are hereby expressly limited so that in no contingency or event, whether by
reason of acceleration of the maturity of this Note or otherwise, shall the
amount paid, or agreed to be paid to the Payee for the use, forbearance, or
detention of the money to be loaned under this Note or otherwise or for the
payment or performance of any covenant or obligation contained herein or any
other document evidencing, securing or pertaining to this loan, exceed the
Maximum Rate. If from any circumstances whatsoever fulfillment of any provision
hereof or any of such other agreements shall cause the amount paid to exceed the
Maximum Rate, then ipso facto, the amount to be paid to the Payee shall be
----------
reduced to the Maximum Rate, and if from any such circumstances the Payee shall
ever receive interest or anything which might be deemed interest under
applicable law which exceeds the Maximum Rate, such amount which would be
excessive interest shall be applied to the reduction of the principal of this
Note and not to the payment of interest, or if such excessive interest exceeds
the unpaid balance of the principal of this Note such excess shall be refunded
to the Maker. All sums paid or agreed to be paid to the Payee for the use,
forbearance or detention of the indebtedness of the Maker to the Payee shall, to
the extent permitted by applicable law, (i) be amortized, prorated, allocated
and spread throughout the full term of such indebtedness until payment in full
so that the actual rate of interest on account of such indebtedness does not
exceed the Maximum Rate throughout the term thereof, (ii) be characterized as a
fee, expense or other charge other than interest, and/or (iii) exclude any
voluntary prepayments and the effects thereof. The terms and provisions of this
paragraph shall control and supersede every other provision of all agreements
between the Payee and the Maker.
EXECUTED as of the day and year first above written.
MB SOFTWARE CORPORATION
By: /s/ SCOTT HAIRE
------------------------------
Scott Haire, President
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Dates Referenced Herein
| Referenced-On Page |
|---|
| This ‘SC 13D’ Filing | | Date | | First | | Last | | | Other Filings |
|---|
| |  |
| Filed on: | | 5/4/01 | | | | | | | None on these Dates |
| | 4/1/00 | | 2 | | 3 |
| | 10/1/98 | | 1 |
| | 4/1/98 | | 1 |
| List all Filings |
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