Secured Promissory Note - Retail Convergence Inc. and Carl Rosendorf
SECURED PROMISSORY NOTE
$145,591.60 June __, 2001
FOR VALUE RECEIVED, the undersigned, Carl Rosendorf, a resident of Weston,
Massachusetts, (the "Maker"), hereby promises to pay to Retail Convergence,
Inc., a Delaware corporation (the "Company") the principal amount of One Hundred
Forty-Five Thousand Five Hundred Ninety-One and 60/100 Dollars ($145,591.60)
(the "Principal Amount"), payable as provided herein with interest at the rate
of 6% per annum from the date hereof on the unpaid principal amount hereof
accruing until all principal and interest has been paid, payable as set forth
herein.
1. Payments.
A. Payments of principal and interest shall be made to the Company at
the address set forth in Section 8 hereof, or such other place as the
Company may direct Maker in writing, in lawful money of the United States
of America.
B. Accrued interest on the outstanding unpaid principal amount hereof
shall be due and payable on the last business day of each September,
December, March and June, commencing on September 30, 2001. All outstanding
principal and accrued interest hereunder shall be paid by the Maker upon
demand following the termination of the Maker's employment with the Company
for any reason.
C. The Maker at its option may make prepayments of the principal of,
and the interest on, this Note in whole or in part at any time without
premium or penalty. Prepayments shall be applied first, to accrued interest
and second, to principal.
2. This Note is being given for payment for 440,000 shares (the "Shares")
of Class A Voting Common Stock, par value $.01 par value per share, of the
Company (the "Common Stock") issued to the Maker pursuant to a Stock Purchase
and Restriction Agreement dated as of June 4, 2001 (the "Stock Restriction
Agreement").
3. The term "Collateral", as used herein, shall mean: (i) certificates
representing the Shares, together with a stock power executed in blank, and (ii)
any and all dividends, distributions and other rights on or with respect to, and
substitutions for and proceeds of, any of the foregoing. The term "Liabilities",
as used herein, shall mean all obligations of the Maker under this Note. To
secure the payment of this Note and all other Liabilities, the Maker hereby
grants to and creates in favor of the Company a lien upon and security interest
in the Collateral. Maker hereby agrees to execute all documents and take any
other actions reasonably requested by the Company in order to perfect the
security interest contemplated hereby.
4. All obligations of the Maker, and all rights, powers and remedies of the
Company, expressed herein shall be in addition to, and not in limitation of,
those provided by law or in any written agreement or instrument (other than this
Note) relating to any of the Liabilities or any security therefor.
-1-
<PAGE>
5. If the Maker shall fail to pay, when due, any amount payable with
respect to any of the Liabilities (a "Default"), (a) this Note may at the option
of the Company, and without demand or notice of any kind, be declared, and
thereupon immediately shall become due, and payable, (b) the Maker agrees to pay
all expenses, including reasonable attorneys' fees and legal expenses, incurred
by the Company in endeavoring to collect any of the Liabilities or to enforce
its rights with respect to any of the Collateral, and (c) the Company may
exercise from time to time any rights and remedies available to it as a secured
party under the Uniform Commercial Code as in effect from time to time in The
Commonwealth of Massachusetts, or otherwise available to it. Without limiting
the foregoing, upon Default the Company may, to the fullest extent permitted by
applicable law and the Stock Repurchase Agreement, without notice,
advertisement, hearing or process of law of any kind, sell any or all of the
Collateral, free of all rights and claims of Maker therein and thereto. Any
proceeds of any of the Collateral may be applied by the Company to the payment
of expenses in connection with the Collateral, free of all rights and claims of
the Maker therein and thereto. Any proceeds of any of the Collateral may be
applied by the Company to the payment of expenses in connection with the
Collateral, including reasonable attorneys' fees and legal expenses, and any
balance of such proceeds may be applied by the Company toward the payment of
such of the Liabilities. No delay on the part of the Company in the exercise of
any right or remedy shall operate as a waiver therefor, and no single or partial
exercise by the Company of any right or remedy shall preclude other or further
exercise thereof or the exercise of any other right or remedy.
6. Notwithstanding anything to the contrary herein, recourse of the holder
of this Note shall be limited to the Collateral, 25% of the original principal
amount of this Note and all accrued interest hereunder. The Maker shall have no
personal liability to the holder of this Note except as provided in the
preceding sentence.
7. The right is expressly granted to the Company at and after a Default to
transfer into the Company's name or nominee any Collateral in the form of
securities pledged hereunder and to exercise, at its option, all of the rights
of a registered owner with respect thereto, including voting rights, if any.
Otherwise, any voting rights shall inure to the benefit of the Maker. The
Company agrees that, following the application of any amounts deemed paid
hereunder upon its exercise of the Purchase Option (as defined in the Stock
Restriction Agreement and required in Section 3 (d) thereof), if requested by
the Maker the Company shall first proceed against the Collateral upon any
Default hereunder and such remaining Collateral shall be valued at its fair
market value. For purposes hereof, the fair market value of such remaining
Collateral shall be an amount determined in good faith by the Board of Directors
of the Company, but shall not be less than the amount most recently determined
by the Board of Directors as the fair market value of the Common Stock in
connection with the grant of any option or award under any employee benefit plan
adopted by the Company.
8. This Note shall inure to the benefit of the Company, its successors or
assignees. This Note shall be binding upon the Maker and his estate and heirs.
9. Any notice, request or other communication pursuant to this Note shall
be deemed duly given if hand delivered or may be sent by certified or registered
mail, in the case of the Company to Retail Convergence, Inc. d/b/a
SmartBargains, 40 Broad Street, Boston, MA 02109, Attn: President, with a copy
to Hutchins, Wheeler & Dittmar, 101 Federal Street, Boston, MA
-2-
<PAGE>
02110, Attn: Steven M. Peck; and in the case of notice to the Maker, to 43
Scotch Pine Road, Weston, MA 02493, with a copy to Hale and Dorr LLP, 60 State
Street, Boston, MA 02109, Attn: Jay Bothwick.
10. The Maker waives presentment, demand, protect and notice of every kind
in connection with the enforcement and collection of this Note.
This Note has been executed under seal as of the date written above.
/s/ Carl Rosendorf
---------------------------
Name: Carl Rosendorf
-3-