Exhibit 4.4


 


PROMISSORY NOTE


 


	
  $20,000,000

  	
  Maturity Date: August 31, 2013

  



 


FOR VALUE RECEIVED, MyPoints.com, Inc., a
Delaware corporation (the “Maker”), hereby promises to pay to the order
of United Online, Inc., a Delaware corporation (the “Payee”), its successors
and assigns, on or before the Maturity Date (as hereinafter defined), the
principal sum of TWENTY MILLION DOLLARS ($20,000,000), in lawful money of the
United States of America, together with accrued and unpaid interest hereon from
the date hereof plus all other unpaid amounts to be paid or reimbursed by the
Maker pursuant to this Note, in accordance with the terms hereinafter set
forth.


 


1.                                       Interest Rate.
The outstanding principal amount of this Note, together with all accrued and
unpaid interest hereon, shall bear interest at 9.625% per annum. Interest shall
be payable quarterly in arrears on March 31, June 30, September 30 and December
31 of each year, commencing on September 30, 2007.


 


Overdue amounts in respect of this Note shall
bear interest at a rate per annum equal to 9.625%. In no event, however, shall
any interest exceed the legal maximum rate of interest permissible by law. Interest
on this Note will accrue from August 8, 2007. Except as otherwise provided
herein, interest shall be calculated on the basis of a 360-day year of twelve
30-day months.


 


2.                                       Maturity Date.
The principal amount of this Note (or, if less, the unpaid principal balance of
such amount) together with all accrued and unpaid interest hereon plus all
other unpaid amounts to be paid or reimbursed by the Maker hereunder shall be
due and payable by the Maker in full on August 31, 2013 (the “Maturity Date”).


 


3.                                       Application
of Payments; Overdue Payments. Each payment on this Note shall be credited
first to the payment of all fees, costs and expenses for which the Payee is
entitled to reimbursement pursuant to Section 10 hereof, then to accrued and
unpaid interest and then to the principal amount. All payments of the unpaid
principal balance and interest will be made without withholding or deduction
for or on account of any present or future taxes, duties, assessments or
governmental charges of whatever nature, unless the withholding of such taxes
or duties is required by law.


 


4.                                       Manner of
Payment. All payments hereunder shall be made in immediately available
funds to the Payee or to such other payee or address as the Payee may designate
from time to time. If any payment of principal or interest on this Note is due
on a day which is not a Business Day, such payment shall be due on the next
succeeding Business Day, and such extension of time shall not be taken into
account in calculating the amount of interest payable under this Note. “Business
Day” means any day, other than a Saturday or Sunday, that is neither a
legal holiday nor a day on which banking institutions in Los Angeles,
California, or New York, New York, are authorized or required by law,
regulation or executive order to close.


 

















 


5.                                       Prepayment.
The Maker shall have the right to prepay the principal amount hereof in full or
in part, together with all accrued interest on the amount prepaid to the date
of such prepayment at any time and from time to time  (the “Prepayment Right”). Any
prepayment amount received by the Payee in connection with the Prepayment Right
shall be applied first to accrued but unpaid interest on this Note through the
date of such prepayment, then to principal. Any such prepayment shall be due
and payable without any premium or penalty of any kind.


 


6.                                       Covenant.
The Maker agrees that, until this Note shall have been repaid in full, the
Maker shall pay the principal amount of and interest on this Note on the dates
and in the manner provided herein.


 


7.                                       Further
Assurances. At the Maker’s reasonable expense, the Maker shall do all acts,
furnish to the Payee all agreements, consents, instruments or other documents,
and do or cause to be done all such other things as the Payee may reasonably
request from time to time in order to give full effect to the purpose and
provisions of this Note. If the Maker fails to perform any act required by this
Note, the Payee may perform, or cause performance of, such act, and the
expenses of the Payee therewith shall be reimbursed upon demand by the Maker in
accordance with Section 10 hereof.


 


8.                                       Events of
Default. Each of the following events shall constitute an “Event of
Default” hereunder (whether it shall be voluntary or involuntary or occur
or be effected by operation of law or otherwise):


 


(a)                                  a failure on the part of the Maker
to make any payment of principal when due under this Note;


 


(b)                                 a failure on the part of the Maker
to make any payment of interest when due under this Note and such failure shall
continue for 30 days;


 


(c)                                  the Maker shall commence (or take
any action for the purpose of commencing) any proceeding under any bankruptcy,
insolvency, readjustment of debt, moratorium or similar law or statute or make
(or take any action for the purpose of making) a general assignment for the
benefit of its creditors or shall admit in writing its inability to pay its debts
generally as they become due;


 


(d)                                 a proceeding shall be commenced
against the Maker under any bankruptcy, insolvency, readjustment of debt,
moratorium or similar law or statute and relief is ordered against it, or the
proceeding is controverted but is not dismissed within thirty (30) days after
the commencement thereof;


 


(e)                                  the Maker consents to or suffers the
appointment of a receiver, trustee or custodian to any substantial part of its
assets that is not vacated within thirty (30) days after such appointment; or


 


(f)                                    any event occurs in relation to the
Maker which under the law of any relevant jurisdiction has an analogous or
equivalent effect to any of the events mentioned in clause (c), (d) or (e) of
this Section 8.


 

















 


The Maker shall notify the Payee promptly
(but in no event later than three (3) Business Days following the occurrence of
any Event of Default) in writing of the occurrence of such Event of Default.


 


9.                                       Remedies.


 


(a)                                  If an Event of Default shall occur
and be continuing, then the Payee may, by notice in writing to the Maker, (i)
declare the principal of and accrued interest on this Note to be, and the same
shall upon such notice forthwith become, immediately due and payable and (ii)
in addition to all rights and remedies available to it at law, exercise any or
all of its rights and remedies under this Note; provided, however, that when any Event of Default described
in clause (c), (d), (e) or (f) of Section 8 has occurred and is continuing,
then all amounts in respect of principal and interest under this Note shall
immediately become due and payable, without presentment, demand of payment,
protest, notice of intent to accelerate, notice of acceleration or notice of
any kind, all of which are hereby expressly waived.


 


(b)                                 No failure or delay by the Payee in
exercising any remedy, right, power or privilege under this Note shall operate
as a waiver of such remedy, right, power or privilege, nor shall any single or
partial exercise of such remedy, right, power or privilege preclude any other or
further exercise of such remedy, right, power or privilege. No remedy, right,
power or privilege conferred upon or reserved to the Payee by this Note is
intended to be exclusive of any other remedy, right, power or privilege
provided or permitted by law, but each shall be cumulative and in addition to
every other remedy, right, power or privilege so provided or permitted and each
may be exercised concurrently or independently from time to time and as often
as may be deemed expedient by the Payee.


 


10.                                 Expenses. From
time to time, the Maker shall reimburse the Payee upon demand for all
reasonable fees, costs and expenses (including the fees, costs and expenses of
counsel and court costs) incurred after the date of this Note in connection
with (a) the collection of any outstanding principal and interest accrued
hereunder (whether or not suit is filed to enforce the terms hereof) and (b)
the enforcement of any rights or remedies provided for pursuant to this Note. The
provisions of this Section 10 shall survive the termination of this Note.


 


11.                                 Waivers. The
Maker hereby waives diligence, presentment, demand of payment, protest, notice
of intent to accelerate, notice of acceleration and all other notices and
demands whatsoever with respect to such liabilities and obligations or to any
action under this Note, except as specifically provided for in this Note. The
Maker further agrees that it shall remain liable for all amounts due hereunder
notwithstanding any extension of time or any change in the terms of payment of
this Note granted by the Payee or any delay or failure by the Payee to exercise
any rights hereunder.


 


12.                                 Governing Law;
Severability. This Note shall be governed by and construed in accordance
with the internal laws of the State of New York, including, without limitation,
Section 5-1401 of the New York General Obligations Law. Whenever


 

















 


possible, each provision of this Note shall be interpreted in such
manner as to be effective and valid under applicable law, but if any provision
hereof is in conflict with any applicable law or is otherwise unenforceable for
any reason whatsoever, then such invalidity, illegality or unenforceability
shall not affect any other provision hereof, and this Note shall be construed
as if such invalid, illegal or unenforceable provision had never been contained
herein.


 


13.                                 Amendment; Waiver.
No amendment to this Note shall be effective unless in writing signed by the
Maker and the Payee. No waiver of any provision of this Note and no consent to
any departure by the Maker hereunder shall be effective unless in writing
signed by the Payee.


 


14.                                 Registration. The
Maker will maintain, at its principle place of business, a register of the
Payee(s) of this Note (the “Register”), and will update the Register to
reflect any permitted assignments or transfers subsequent to the date hereof. The
Maker will make payments of principal and interest as specified hereunder to
the Payee(s) named as such in the Register. The Payee shall notify the Maker in
writing prior to any assignment, transfer or other disposition of this Note (or
any portion hereof) or such Payee’s rights or interests hereunder, with such
written notice to be delivered to the Maker not later than one (1) Business Day
prior to any such assignment, transfer or disposition and which notice shall
specify the principal amount hereunder that is the subject of such assignment,
transfer or disposition. Notwithstanding anything to the contrary herein, the
registered owner of this Note (or any portion hereof) as indicated on the Register
shall be the party with the exclusive right to receive payment of any principal
amount and accrued and unpaid interest on this Note.


 


15.                                 Loss, Mutilation,
Etc. Upon notice from the Payee to the Maker of the loss, theft,
destruction or mutilation of this Note, and upon receipt of an indemnity
reasonably satisfactory to the Maker from the Payee or, in the case of
mutilation hereof, upon surrender of the mutilated Note, the Maker will make
and deliver a new note of like tenor in lieu of this Note.


 


16.                                 Notices. All
notices, consents, waivers or other communications required or permitted
hereunder to be delivered to the Maker shall be in writing and shall be mailed
by registered or certified mail, return receipt requested, postage prepaid or
otherwise delivered by hand, by messenger or an internationally recognized
courier (charges prepaid) or facsimile transmission, addressed to the Maker at
MyPoints.com, Inc., 100 California Street, 12th Floor, San Francisco, CA 94111.
Each such notice, consent, waiver or other communication shall for all purposes
hereunder be treated as effective or as having been given when delivered, if
delivered by hand or by messenger (or internationally recognized courier), 24
hours after confirmed receipt if sent by facsimile transmission or at the
earlier of its receipt or on the second (2nd) Business Day after
mailing, if mailed, as aforesaid.


 


 


[signature page follows]


 

















 


IN WITNESS WHEREOF, this Note has been
executed and delivered by the undersigned on the 8th day of August, 2007.


 


 


	
   

  	
  MYPOINTS.COM, INC.

  
	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
       /s/
  Mark R. Goldston

  	
   

  
	
   

  	
   

  	
  Name: 

  	
  Mark R. Goldston

  
	
   

  	
   

  	
  Title:

  	
  Chief Executive Officer