M2 Systems  Amended & Restated Promissory Note



 
Exhibit 10.22

 
M2 SYSTEMS CORPORATION 
$3,640,000.00 
Amended, Restated and Consolidated Promissory Note 
Atlanta, Georgia 
March 1, 2003 
 

 
M2 Systems Corporation, a Florida
corporation (“Maker”), for value received, promises and agrees to pay, as herein provided, to the order of Optio Software, Inc., a Georgia corporation (“Payee”), at such address or to such bank account as Payee may
direct, in lawful money of the United States of America, the principal sum of Three Million Six Hundred Forty Thousand Dollars ($3,640,000.00), together with interest thereon as set forth herein. 
 
This Amended, Restated and Consolidated Promissory Note
(“Note”) supersedes, amends and consolidates into one Promissory Note (i) the Promissory Note, dated December 4, 2001, in the original principal amount of $3,250,000, issued in partial payment of the purchase price for the shares of
common stock of Muscato Corporation (the “Company”) acquired by Maker from Payee pursuant to that certain stock purchase agreement, dated December 4, 2001, by and between Maker and Payee (the “Stock Purchase
Agreement”); and (ii) the Promissory Note, dated December 4, 2001, in the original principal amount of $750,000, issued in partial payment of the purchase price for certain assets of Payee acquired by Maker pursuant to that certain asset
purchase agreement, dated December 4, 2001, by and between Maker and Payee (the “Asset Purchase Agreement”) (collectively, the Promissory Notes referred to in (i) and (ii) shall be referred to as the “Original
Notes”). 
 

	 	1.	 	Payment of Principal and Interest. 

 
(a)    The principal balance of this Note and all accrued and unpaid interest thereon
shall be due and payable as follows: (i) four (4) equal quarterly payments of One Hundred Thousand Dollars ($100,000.00) each, such payments commencing on March 1, 2003 and continuing thereafter on the first day of the first month of each succeeding
calendar quarter through and including December 1, 2003; (ii) four (4) equal quarterly payments of One Hundred Fifteen Thousand Dollars ($115,000.00) each, such payments commencing on March 1, 2004 and continuing thereafter on the first day of the
first month of each succeeding calendar quarter through and including December 1, 2004; (iii) eleven (11) equal quarterly payments of One Hundred Twenty Thousand Dollars ($120,000.00) each, commencing on March 1, 2005 and continuing thereafter on
the first day of the first calendar month of each succeeding calendar quarter through and including September 1, 2007; and (iv) a final payment of all then outstanding principal and interest due on December 1, 2007 (each such foregoing date, a
“Payment Date”); provided, however, that if such day is not a day on which banks are open for business in Georgia (a “Business Day”), then such payment shall be due on the Business Day next succeeding
the Payment Date. 
 
(b)    Interest on the outstanding principal balance of this Note shall accrue, compounded quarterly, from the date hereof up to and including the date of payment in full of all obligations hereunder, at a rate of
interest equal to the “Prime Rate” as defined below, subject to adjustment as provided below, provided that such rate of interest shall not exceed six and three-quarters percent (6.75%) per annum. As used herein, “Prime Rate”
shall mean the prime rate as published in the Wall Street Journal (Eastern Edition) from time to time after the date hereof. As of the date hereof, Prime Rate is four and one-quarter percent (4.25%) per annum. If, on the third (3rd) business day (the “Measurement Date”) preceding the first calendar day of the 
 

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first calendar month of any
calendar year hereafter, Prime Rate shall be higher or lower than the rate of interest then in effect hereunder, then the rate of interest hereunder for the calendar year next succeeding such Measurement Date shall be adjusted to equal the Prime
Rate on such date, such adjustment to be effective as of the first calendar day of such next succeeding calendar year. Interest shall be calculated based on a three hundred sixty (360) day year, consisting of twelve (12) months of thirty (30) days
each. 
 
(c)    All payments
received hereunder shall be applied in the following order: (i) first, to all fees, default interest, costs or other expenses owing by Maker to Payee hereunder or under any of the Security Documents (as defined in Section 16 hereof); (ii) next, to
all accrued but unpaid interest; and (iii) finally, to the outstanding principal balance. 
 
2.    Waiver.    Maker, and each surety, endorser, guarantor or other party ever liable for payment of any sums of money payable on
this Note, jointly and severally, expressly waive demand and presentment for payment, notice of nonpayment, protest, notice of protest, notice of dishonor, notice of intent to accelerate the maturity hereof, notice of the acceleration of the
maturity hereof, bringing of suit and diligence in taking any action to collect amounts called for hereunder and in the handling of securities at any time existing in connection herewith. 
 
3.    Amendments.    Any term or
provision of this Note and any obligation of Maker hereunder or with respect hereto, may be changed or modified, partially or completely, or noncompliance may be consented to or authorized, only by written agreement between Maker and the holder
hereof. 
 
4.    Events of Default.    The occurrence and continuance of any of the following events shall be considered an “Event of Default” for purposes of this
Note: (a) any involuntary case or other proceeding shall be commenced against Maker that seeks liquidation, reorganization or other relief with respect to it or its debts or other liabilities under any bankruptcy, insolvency or other similar law now
or hereafter in effect or seeking the appointment of a trustee, receiver, liquidator or custodian unless dismissed or stayed within sixty (60) days after the institution thereof (provided that upon ineffectiveness of any stays, an Event of Default
shall exist); (b) Maker shall commence a voluntary case or other proceeding seeking liquidation, reorganization or other relief with respect to itself or its debts or other liabilities under any bankruptcy, insolvency or other similar law now or
hereafter in effect or seeking the appointment of a trustee, receiver, liquidator, custodian or other similar official with respect to Maker, or shall consent to any such relief or to the appointment of, or taking possession by, any such official in
an involuntary case or other proceeding commenced against it, or shall make a general assignment for the benefit of creditors or shall fail generally or shall admit in writing its inability to pay its debts generally as they become due or shall take
any corporate action to authorize or effect any of the foregoing; (c) failure of Maker to pay any principal or interest when due hereunder; and (d) the occurrence of an Event of Default pursuant to any of the Security Documents. Notwithstanding the
foregoing, no Event of Default shall be deemed to have occurred under Sections 4(a), 4(b) or 4(c) above, unless (i) Maker shall have received written notice from Payee describing such Event of Default with sufficient particularity and (ii) the event
giving rise to such Event of Default shall continue for thirty (30) calendar days following the receipt of such written notice. 
 
5.    Remedy.    Upon the occurrence of any Event of Default, the
entire principal amount of this Note then outstanding together with interest accrued thereon shall become immediately due and payable, all without written notice and without presentment, demand, protest, notice of protest or dishonor or any other
notice of default of any kind, all of which are hereby expressly waived by Maker. Additionally, upon an Event of Default the interest rate on this Note shall be the greater of the then applicable interest rate hereunder as adjusted pursuant to
Section 1(b) above or fifteen percent (15%) per annum (the “Default Rate”). Further, if any payment required under this Note is not paid within fifteen (15) days after its due date, then Maker shall pay a late charge equal to two
percent (2%) of the payment due to compensate Payee for administrative expenses and other costs of delinquent payments. This late charge may be assessed 
 

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without notice, shall be
immediately due and payable and shall be an addition to all other rights and remedies available to Payee. 
 
6.    Costs and Attorneys’ Fees.    Upon occurrence of an Event
of Default and if this Note is placed in the hands of an attorney for collection, or suit is filed hereon, or proceedings are had in bankruptcy, probate, receivership, reorganization, arrangement, or other judicial proceedings for the establishment
or collection of any amount called for hereunder, or any amount payable or to be payable hereunder is collected through any such proceedings, Maker agrees to pay to the owner and holder of this Note reasonable attorneys’ fees and costs,
including the fees and costs incurred in any appeals, and any collection fees incurred in collection of this Note. 
 
7.    Acceleration Upon Change of Control. 
 
(a)    For purposes of this Note, a
“Change of Control” means the occurrence of any of the following events, unless such event constitutes a “Permissible Transfer” by Maker pursuant to Section 11 below,: (i) a merger or consolidation where Maker is not the
consolidated or surviving company; (ii) any transaction as a result of which any person or persons acting in concert (as such term is used in Section 13(d) and 14(d)(2) of the Exchange Act) (other than a person who owns fifty percent (50%) or more
of the combined voting power of Maker’s outstanding securities as of the date hereof) is or becomes the beneficial holder directly or indirectly of securities of Maker representing fifty percent (50%) or more of the combined voting power of
Maker’s then outstanding securities; (iii) a transfer of all or substantially all of the assets or stock of Maker; or (iv) a discontinuation of the business of Maker. 
 
(b)    Upon the occurrence of a Change of Control, Payee shall have the right to declare
the outstanding principal amount and accrued interest to the date of the Change of Control to be due and payable by giving written notice to Maker to that effect; and upon Maker’s receipt of such notice, the principal amount and accrued
interest on this Note shall become immediately due and payable, and the maturity date shall be deemed to be the date of receipt of such notice. 
 
8.    Covenants of Maker.    Maker covenants and agrees that, so long
as this Note shall be outstanding: 
 
(a)    Maker shall provide to Payee annual financial statements, prepared in accordance with generally accepted accounting principles, consistently applied. Payee shall maintain the confidentiality of such
financial statements and may provide copies of such financial statements only to employees, accountants and attorneys obligated to maintain such confidentiality. The obligations of Payee in the preceding sentence contained herein shall not apply to:
(a) information which is now or hereafter enters the public domain without a breach of this provision by Payee; (b) information known to Payee prior to the time of disclosure by the disclosing party or independently developed by Payee’s
personnel; (c) information disclosed in good faith to Payee by a third person legally entitled, to the best of Payee’s knowledge, to disclose the same; or (d) pursuant to court order, judicial process, or otherwise as required by law.
Maker’s obligation under this section 8(a) shall expire if Payee assigns or transfers this Note to an entity which is engaged in the business of developing computer software which functions as a messaging and integration broker for enterprise
application integration. 
 
(b)    All necessary authorization and consents to the issuance of this Note have been obtained. 
 
(c)    Maker will obtain and maintain an insurance policy of not less than $1,000,000 face amount on the life of
Michael A. Muscato. 
 

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  9.    No Subordination.    Except as provided by applicable law, the indebtedness evidenced by this Note shall not be subordinated or otherwise made
junior in right of payment to the prior payment of any indebtedness of Maker, without the prior written consent of Payee. 
 
10.    Set-Off.    This Note is subject to set-off in accordance with
the terms and conditions set forth in Section 6.4 of the Stock Purchase Agreement and Section 6.4 of the Asset Purchase Agreement, but is subject to no other right of set-off. 
 
11.    Non-Assignment.    This Note and all of the provisions hereof shall be binding upon and inure to the benefit of the parties hereto and their
respective successors and permitted assigns, but neither this Agreement nor any of the rights, interests or obligations hereunder shall be assigned by either party without the prior written consent of the other party; provided,
however, that (a) Maker shall have the right to assign any or all of its obligations under this Agreement to an affiliate of Maker, provided, that Maker and such affiliate shall both remain liable for all obligations of Maker set forth
herein (a “Permissible Transfer”) and (b) Payee shall have the right, without Maker’s (or any permitted assignee of Maker’s) consent, to assign this Note and/or any of its rights hereunder to any affiliate of Payee or
pursuant to a merger, consolidation, sale of stock, or sale or exchange of substantially all the assets of Payee. 
 
12.    Arbitration.    In the event of any dispute or controversy over the
interpretation, enforceability, breach or effect of this Note, the parties hereto consent and agree that any and all such disputes shall be submitted for final and binding arbitration. Arbitration shall be by one (1) arbitrator selected in
accordance with the rules of the American Arbitration Association, Fulton County, Georgia (“AAA”), by the AAA. The hearing before the arbitrator shall be held in Fulton County, Georgia and shall be conducted in accordance with the
rules existing at the date thereof of the AAA, to the extent not inconsistent with this Note. The decision of the arbitrator shall be final and binding as to any matters submitted to them under this Note. All costs and expense incurred in connection
with any such arbitration proceeding and those incurred in any civil action to enforce the same shall be borne by the party against which the decision is rendered. 
 
13.    Notices.    Any notice,
request or other communication required or permitted hereunder shall be in writing and shall be deemed to have been duly given if delivered in the manner set forth in the notices provision of the Stock Purchase Agreement. Any party hereto may by
notice so given change its address for future notice hereunder. Notice shall conclusively be deemed to have been given and shall be deemed to have been received when delivered in accordance with the terms of the notices provision set forth in the
Stock Purchase Agreement. 
 
14.    Governing Law.    This Agreement shall be governed by and construed in accordance with the laws of the State of Florida, excluding that body of law
relating to conflict of laws. 
 
15.    Time of the Essence.    Time is of the essence with respect to all obligations hereunder. 
 
16.    Security.    The obligations of
Maker under this Note are secured by (a) a security interest in the assets of the Company granted pursuant to the Security Agreement (Muscato Assets), dated as of December 4, 2001, among Maker, Payee and the Company, as amended by that certain
Amended and Restated Security Agreement (Muscato Assets) dated of even date herewith (the “Muscato Assets Security Agreement”), (b) a security interest in certain assets of Maker granted pursuant to the Security Agreement (Translink
Assets), dated as of December 4, 2001, between Maker and Payee, as amended by that certain Amended and Restated Security Agreement (Translink Assets) dated of even date herewith (the “Translink Assets Security Agreement”), and (c) a
security interest and pledge in, to and of all of the issued and outstanding shares of capital stock of the Company granted pursuant to a Pledge Agreement, dated as of 
 

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December 4, 2001, between
Maker and Payee, as amended by that certain Amended and Restated Pledge Agreement dated of even date herewith (the “Pledge Agreement” and, collectively with the Muscato Assets Security Agreement and the Translink Assets Security
Agreement, the “Security Documents”). 
 
17.    Usury.    If, from any circumstances whatsoever, the fulfillment of any provision of this Note involves transcending the limit of validity prescribed by any
applicable usury statute or any other applicable law, with regard to obligations of like character and amount, then the obligation to be fulfilled will be reduced to the limit of such validity as provided in such statute or law so that in no event
shall any exaction of interest be possible under this Note in excess of the limit of such validity. In no event shall Maker be bound to pay interest of more than the legal limit for the use, forbearance or detention of money and the right to demand
any such excess is hereby expressly waived by Payee. 
 
18.    Prepayment.    Maker may, without premium or penalty, at any time and from time to time, prepay all or any portion of the outstanding principal balance due
under this Note, provided that each such prepayment is accompanied by all accrued and unpaid interest calculated to the date of such prepayment. Any partial prepayments shall not change the schedule of installments due hereunder. 
 
19.    Novation.    This Note is not intended to be nor shall it constitute a novation of the Original Notes or the indebtedness evidenced thereby, but rather an amendment
and restatement of the terms thereof. Maker hereby ratifies, confirms and approves the Original Notes as modified herein and pursuant hereto, and agrees that the same constitute valid and binding obligations of Maker, enforceable by the Payee in
accordance with their terms, except as enforcement may be limited by applicable bankruptcy, fraudulent conveyance or similar laws affecting the rights of creditors, and for general principles of equity, and except as may otherwise be provided
therein. From and after the date hereof, any references to the Original Notes in any other document evidencing, securing or otherwise relating to the indebtedness evidenced thereby shall mean and refer to the Original Notes, as modified, amended and
restated hereby and pursuant hereto. 
 

	 M2 SYSTEMS CORPORATION

	
	 By:
	 	 /s/    JOSEPH W. ADAMS


	 	 	 Joseph W. Adams, President



 
Acknowledged and
accepted this 
30th day of April, 2003. 
 

	  
 OPTIO SOFTWARE,
INC.
	 	 	 	 
	
	 By:
	 	 /s/    C. WAYNE CAPE

	 	 	 	 	 	 
	 	 	 C. Wayne Cape
 President and Chief Executive Officer
	 	 	 	 	 	 

 
 

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