B&D FOOD CORPORATION PREFERRED SHARE SUBSCRIPTION AGREEMENT
Exhibit
10.1
B&D
FOOD CORPORATION PREFERRED SHARE
SUBSCRIPTION AGREEMENT
Whereas,
Livorno
Investments S.A., the predecessor to the Purchasers (“Livorno”), has lent BDFC
U.S. $10,000,000 pursuant to a promissory note dated July 8, 2005, as amended
by
the amendment to the promissory note dated May 7, 2007 and the second amendment
to the promissory note dated September 28, 2008 (the “Note”);
Whereas,
Livorno
and the Purchasers have entered into a transfer agreement pursuant to which
Livorno transferred its right, title and interest in, under and to the Note
to
the Purchasers in accordance with their respective ownership interests in
Livorno;
Whereas,
each of
the Purchasers wishes to convert the outstanding principal and interest thereon
into preferred shares of BDFC; and
Whereas,
BDFC
has authorized the issuance of preferred shares in a board of directors’
resolution dated the date hereof (the “Board of Directors’ Resolution) pursuant
to the Amendment to the Certificate of Incorporation of BDFC dated July 5,
2005.
Now,
therefore,
in
consideration of the mutual premises and covenants contained herein, and
intending to be legally bound, the parties hereto agree as follows:
| 1. |
Issuance,
Conversion and Rights of Series A Preferred
Shares.
|
| 1.1 |
Issuance
of Series A Preferred Shares.
Pursuant to the authority granted to BDFC in its Board of Directors’
Resolution based on the Amendment to the Certificate of Incorporation
dated July 5, 2005, BDFC hereby issues to the Purchasers an aggregate
of
373,595,592 shares of its preferred stock (the “Series A Preferred
Shares”).
|
| 1.2 |
Conversion
of Principal and Interest under the Note.
Subject to the terms and conditions hereof, BDFC hereby transfers
the
Series A Preferred Shares to Purchasers in exchange for each of the
Purchasers cancelling its respective share of the Note (it being
understood that the transactions contemplated hereby will result
in all of
Purchasers’ principal and accrued interest under the Note being converted
into the Series A Preferred Shares).
|
| 1.3 |
Rights
of Series A Preferred Shares.
The Series A Preferred Shares will have the following
rights:
|
|
·
|
Cumulative
dividend of U.S. $100,000 (it being understood that BDFC has no obligation
to declare and pay any dividends, but that Purchasers shall receive
with a
right of first priority pro rata to their ownership in Livorno U.S.
$100,000 for every full calendar
year
|
that
elapses before BDFC declares and pays a dividend prior to BDFC paying any
dividends to holders of its common shares);
|
·
|
Conversion
at the option of each of the Purchasers upon 45 days’ written notice into
one share of BDFC’s common stock for each share of Series A Preferred
Shares to be converted (it being understood that BDFC shall take
any
action necessary to effect a conversion into shares of common stock
promptly upon receiving written notice from a Purchaser);
and
|
|
·
|
Priority
in distributions in the event of a liquidation or winding down of
BDFC’s
business.
|
| 2. |
Closing
Dates; Delivery.
|
| 2.1 |
Closing.
Subject to the satisfaction (or waiver) of the conditions to the
closing
contained in Section 6 of this Agreement, the purchase and sale of
the
Series A Preferred Shares shall take place at 10:00 a.m. local time
on a
date to be mutually agreed amongst the parties hereto, but, in any
event,
no later than September 30, 2008 (the "Closing").
|
| 2.2 |
Delivery.
At Closing, BDFC and the Purchasers will sign this Agreement and
BDFC will
deliver to each of the Purchasers a certificate reflecting his ownership
of the Series A Preferred Shares.
|
| 3. |
Additional
Agreements and Covenants of the Parties.
The parties hereto agree as
follows:
|
| 3.1 |
Further
Assurances.
Each party hereto agrees to execute, on request, all other documents
and
instruments as the other party shall reasonably request, and to take
any
actions, which are reasonably required or desirable to carry out
obligations imposed under, and affect the purposes of, this Agreement.
|
| 3.2 |
Miscellaneous.
|
| 3.2.1 |
Expenses.
Each party hereto will pay its own expenses in connection with the
transactions contemplated hereby.
|
| 3.2.2 |
Governing
Law and Jurisdiction.
This Agreement shall be governed by, and be construed in accordance
with,
the laws of the State of New York (without giving effect to the
conflicts of laws provisions thereof). The parties agree that any
disputes
arising hereunder shall be submitted to the non-exclusive jurisdiction
of
the courts of the State of New
York.
|
| 3.2.3 |
Successors
and Assigns.
The provisions hereof shall inure to the benefit of and be binding
upon
the successors, assigns, heirs, executors and administrators of the
parties hereto.
|
| 3.2.4 |
Entire
Agreement; Amendments.
|
| 3.2.4.1 |
Entire
Agreement.
This Agreement constitutes the full and entire understanding and
agreement
between the parties with regard to the subjects hereof and thereof,
and
supersedes any and all prior and contemporaneous agreements,
understandings, discussions and
correspondence.
|
| 3.2.4.2 |
Amendments.
This Agreement may be amended or modified only with the prior written
consent of all parties hereto.
|
| 3.2.4.3 |
Severability.
In the event that any one or more of the provisions of this Agreement
shall be deemed unenforceable by any court of competent jurisdiction
for
any reason whatsoever, the remainder of his Agreement shall remain
enforceable and in full effect.
|
IN
WITNESS WHEREOF, the parties have executed this Agreement as of the day and
year
first above written.
B&D
Food Corporation
Xxxxxx
Xxxxxx
Xxxxxxx
Xxxxxx
Xxxx
Xxxxx
