EXHIBIT 4.3
THIS NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED
(THE "1933 ACT"), OR UNDER THE PROVISIONS OF ANY APPLICABLE STATE SECURITIES
LAWS, BUT HAS BEEN ACQUIRED BY THE REGISTERED HOLDER HEREOF FOR PURPOSES OF
INVESTMENT AND IN RELIANCE ON STATUTORY EXEMPTIONS UNDER THE 1933 ACT, AND UNDER
ANY APPLICABLE STATE SECURITIES LAWS. THIS NOTE MAY NOT BE SOLD, PLEDGED,
TRANSFERRED OR ASSIGNED EXCEPT IN A TRANSACTION WHICH IS EXEMPT UNDER PROVISIONS
OF THE 1933 ACT AND ANY APPLICABLE STATE SECURITIES LAWS OR PURSUANT TO AN
EFFECTIVE REGISTRATION STATEMENT; AND IN THE CASE OF AN EXEMPTION, ONLY IF THE
COMPANY HAS RECEIVED AN OPINION OF COUNSEL SATISFACTORY TO THE COMPANY THAT SUCH
TRANSACTION DOES NOT REQUIRE REGISTRATION OF THIS NOTE.
B&D FOOD CORP.
July 8, 2005 New York, New York
$10,000,000
8% CONVERTIBLE PROMISSORY NOTE
B&D Food Corp., a Delaware corporation (the "Company"), for value
received, hereby promises to pay to Livorno Investments S.A., or registered
assigns (the "Holder") on July , 2008 (the "Maturity Date"), at the principal
offices of the Company, the principal sum of Ten Million Dollars ($10,000,000)
in such coin or currency of the United States of America as at the time of
payment shall be legal tender for the payment of public and private debts, and
to pay interest on the outstanding principal sum hereof at the rate of eight
percent (8%) per annum (the "Note"). Principal and accrued interest shall be
payable on the Maturity Date in like coin or currency to the Holder hereof at
the office of the Company as hereinafter set forth, provided that any payment
otherwise due on a Saturday, Sunday or legal Bank holiday may be paid on the
following business day. In the event that for any reason whatsoever any interest
or other consideration payable with respect to this Note shall be deemed to be
usurious by a court of competent jurisdiction under the laws of the State of New
York or the laws of any other state governing the repayment hereof, then so much
of such interest or other consideration as shall be deemed to be usurious shall
be held by the holder as security for the repayment of the principal amount
hereof and shall otherwise be waived.
1. Transfers of Note to Comply with the 1933 Act
The Holder agrees that this Note may not be sold, transferred, pledged,
hypothecated or otherwise disposed of except as follows: (1) to a person whom
the Note may legally be transferred without registration and without delivery of
a current prospectus under the 1933 Act with respect thereto and then only
against receipt of an agreement of such person to comply with the provisions of
this Section 1 with respect to any resale or other disposition of the Note; or
(2) to any person upon delivery of a prospectus then meeting the requirements of
the 1933 Act relating to such securities and the offering thereof for such sale
or disposition, and thereafter to all successive assignees.
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2. Prepayment; Conversion
The principal amount of this Note may be prepaid by the Company, in
whole or in part without premium or penalty, at any time. Upon any prepayment of
the entire principal amount of this Note, all accrued, but unpaid, interest
shall be paid to the Holder on the date of prepayment.
At any time prior to or at the time of repayment of this Note by the
Company, the Holder may elect to convert some or all of the principal and
interest owing on this Note into shares of the Company's common stock at the
rate of $0.20 per share. Such election to convert shall be evidenced by
completion of the conversion notice attached hereto and delivery of such notice
to the Company. The Holder's right to convert the obligations due under this
Note to common stock shall supercede the Company's right to repay such
obligations in cash.
3. Covenants of Company
The Company covenants and agrees that, so long as any principal of, or
interest on, this Note shall remain unpaid, unless the Holder shall otherwise
consent in writing, it will comply with the following terms:
(a) Reporting Requirements. The Company will furnish to the Holder:
(i) as soon as possible, and in any event within ten (10) days after
obtaining knowledge of the occurrence of (A) an "Event of Default," as
hereinafter defined, (B) an event which, with the giving of notice or the lapse
of time or both, would constitute an Event of Default, or (C) a material adverse
change in the condition or operations, financial or otherwise, of the Company,
taken as whole, the written statement of the Chief Executive Officer or the
Chief Financial Officer of the Company, setting forth the details of such Event
of Default, event or material adverse change and the action which the Company
proposes to take with respect thereto;
(ii) promptly after the sending or filing thereof, copies of all
financial statements, reports, certificates of its Chief Executive Officer,
Chief Financial Officer or accountants and other information which the Company
or any subsidiary sends to any holders (other than the Notes) of its securities;
(iii) promptly after the commencement thereof, notice of each action,
suit or proceeding before any court or other governmental authority or other
regulatory body or any arbitrator as to which there is a reasonable possibility
of a determination that would (A) materially impact the ability of the Company
or any subsidiary to conduct its business, (B) materially and adversely affect
the business, operations or financial condition of the Company taken as a whole,
or (C) impair the validity or enforceability of the Notes or the ability of the
Company to perform its obligations under the Notes.
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(b) Compliance with Laws. The Company will comply, in all material
respects with all applicable laws, rules, regulations and orders, except to the
extent that noncompliance would not have a material adverse effect upon the
business, operations or financial condition of the Company taken as a whole.
(c) Preservation of Existence. The Company will maintain and preserve,
and cause each subsidiary, if any, to maintain and preserve, its existence, and
become or remain duly qualified and in good standing in each jurisdiction in
which the failure to be so qualified would have a material adverse effect on the
business, operations or financial condition of the Company, taken as a whole.
(d) Maintenance of Properties. The Company will maintain and preserve,
all of its properties which are necessary in the proper conduct of its business
in good working order and condition, ordinary wear and tear excepted, and
comply, at all times with the provisions of all leases to which it is a party as
lessee or under which it occupies property, so as to prevent any forfeiture or
material loss thereof or thereunder.
(e) Maintenance of Insurance. The Company will maintain, with
responsible and reputable insurers, insurance with respect to its properties and
business, in such amounts and covering such risks, as is carried generally in
accordance with sound business practice by companies in similar businesses in
the same localities in which the Company is situated.
(f) Keeping of Records and Books of Account. The Company will keep
adequate records and books of account, with complete entries made in accordance
with generally accepted accounting principles, reflecting all of its financial
and other business transactions.
(g) Maintenance of Nasdaq Listing. The Company shall do all things
necessary or advisable in order to maintain its listing on the NASD OTC Bulletin
Board.
(h) Compliance with the Securities Exchange Act of 1934. The Company
shall comply in all respects with the requirements of the Securities Exchange
Act of 1934, including the filing of all reports due thereunder.
4. Events of Default and Remedies
(a) Any one or more of the following events which shall have occurred
and be continuing shall constitute an event of default ("Event of Default"):
(i) Default in the payment of interest upon this Note, as and when
the same shall become due; or
(ii) Default in the payment of the principal of this Note, as and
when the same shall become due; or
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(iii) The Company shall fail to perform or observe any affirmative
covenant contained in this Note and such Default, if capable of being remedied,
shall not have been remedied ten (10) days after written notice thereof shall
have been given by the Holder to the Company; or
(iv) The Company or any subsidiary (A) shall institute any
proceeding or voluntary case seeking to adjudicate it bankrupt or insolvent, or
seeking dissolution, liquidation, winding up, reorganization, arrangement,
adjustment, protection, relief or composition of it or its debts under any law
relating to bankruptcy, insolvency or reorganization or relief of debtors, or
seeking the entry of any order for relief or the appointment of a receiver,
trustee, custodian or other similar official for such the Company or any
subsidiary or for any substantial part of its property, or shall consent to the
commencement against it of such a proceeding or case, or shall file an answer in
any such case or proceeding commenced against it consenting to or acquiescing in
the commencement of such case or proceeding, or shall consent to or acquiesce in
the appointment of such a receiver, trustee, custodian or similar official; (B)
shall be unable to pay its debts as such debts become due, or shall admit in
writing its inability to apply its debts generally; (C) shall make a general
assignment for the benefit of creditors; or (D) shall take any action to
authorize or effect any of the actions set forth above in this subsection 3
(iv); or
(v) Any proceeding shall be instituted against the Company seeking
to adjudicate it a bankrupt or insolvent, or seeking dissolution, liquidation,
winding up, reorganization, arrangement, adjustment, protection, relief of
debtors, or seeking the entry of an order for relief or the appointment of a
receiver, trustee, custodian or other similar official for the Company or for
any substantial part of its property, and either such proceeding shall not have
been dismissed or shall not have been stayed for a period of sixty (60) days or
any of the actions sought in such proceeding (including, without limitation, the
entry of any order for relief against it or the appointment of a receiver,
trustee, custodian or other similar official for it or for any substantial part
of its property) shall occur; or
(vi) One or more final judgments or orders for the payment of money
in excess of $100,000 in the aggregate shall be rendered against the Company,
and either (A) enforcement proceedings shall have been commenced by any creditor
upon any such judgment or order, or (B) there shall be any period of thirty (30)
days during which enforcement of any such judgment or order shall not be
discharged, stayed or fully satisfied.
(b) If an Event of Default described above has occurred, then the
Holder may, without further notice to the Company, declare the principal amount
of this Note at the time outstanding, together with accrued unpaid interest
thereon, and all other amounts payable under this Note to be forthwith due and
payable, whereupon such principal, interest and all such amounts shall become
and be forthwith due and payable.
(c) The Company covenants that in case the principal of, and accrued
interest on, the Note becomes due and payable by declaration or otherwise, then
the Company will pay in cash to the Holder of this Note, the whole amount that
then shall have become due and payable on this Note for principal or interest,
as the case may be, and in addition thereto, such further amount as shall be
sufficient to cover the costs and expenses of collection, including reasonable
fees and disbursements of the Holder's legal counsel. In case the Company shall
fail forthwith to pay such amount, the Holder may commence an action or
proceeding at law or in equity for the collection of the sums so due and unpaid,
and may prosecute any such action or proceeding to judgment or final decree
against Company or other obligor upon this Note, wherever situated, the monies
adjudicated or decreed to be payable.
5. Miscellaneous
(a) This Note has been issued by the Company pursuant to
authorization of the Board of Directors of the Company.
(b) The Company may consider and treat the entity in whose name this
Note shall be registered as the absolute owner thereof for all purposes
whatsoever (whether or not this Note shall be overdue) and the Company shall not
be affected by any notice to the contrary. Subject to the limitations herein
stated, the registered owner of this Note shall have the right to transfer this
Note by assignment, and the transferee thereof shall, upon his registration as
owner of this Note, become vested with all the powers and rights of the
transferor. Registration of any new owners shall take place upon presentation of
this Note to the Company at its principal offices, together with a duly
authenticated assignment. In case of transfer by operation of law, the
transferee agrees to notify the Company of such transfer and of his address, and
to submit appropriate evidence regarding the transfer so that this Note may be
registered in the name of the transferee. This Note is transferable only on the
books of the Company by the holder hereof, in person or by attorney, on the
surrender hereof, duly endorsed. Communications sent to any registered owner
shall be effective as against all holders or transferees of the Note not
registered at the time of sending the communication.
(c) Payments of principal and interest shall be made as specified
above to the registered owner of this Note. No interest shall be due on this
Note for such period of time that may elapse between the maturity of this Note
and its presentation for payment.
(d) The Holder shall not, by virtue, hereof, be entitled to any
rights of a shareholder in the Company, whether at law or in equity, and the
rights of the Holder are limited to those expressed in this Note.
(e) Upon receipt by the Company of evidence reasonably satisfactory
to it of the loss, theft, destruction or mutilation of this Note, and (in the
case of loss, theft or destruction) of reasonably satisfactory indemnification,
and upon surrender and cancellation of this Note, if mutilated, the Company
shall execute and deliver a new Note of like tenor and date.
(f) This Note shall be construed and enforced in accordance with the
laws of the State of New York. The Company and the Holder hereby consent to the
jurisdiction of the Courts of the State of New York and the United States
District Courts situated therein in connection with any action concerning the
provisions of this Note instituted by the Holder against the Company.
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IN WITNESS WHEREOF, B&D Food Corp. caused this Note to be
signed in its name by its Chief Executive Officer.
B&D FOOD CORP.
By:
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Xxxxxx Xxxxxx
Chief Executive Officer
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NOTICE OF CONVERSION
(To be executed by the Registered Holder in order to convert the Note)
The undersigned hereby elects to convert $_________ of the principal
and $_________ of the interest due on the Note issued by B&D FOOD CORP.
into Shares of Common Stock according to the conditions set forth in
such Note, as of the date written below.
Date of Conversion:
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Conversion Price: $0.20 per share
Shares To Be Delivered:
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Signature:
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Print Name:
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Address:
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