Exhibit 4.7
THIS NOTE AND THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR QUALIFIED
UNDER APPLICABLE STATE SECURITIES LAWS AND HAVE BEEN TAKEN FOR
INVESTMENT PURPOSES ONLY AND NOT WITH A VIEW TO OR FOR SALE IN
CONNECTION WITH ANY DISTRIBUTION THEREOF. NEITHER THIS NOTE NOR THE
SECURITIES REPRESENTED HEREBY MAY BE SOLD OR OTHERWISE TRANSFERRED IN
THE ABSENCE OF SUCH REGISTRATION AND QUALIFICATION WITHOUT, EXCEPT
UNDER CERTAIN SPECIFIC LIMITED CIRCUMSTANCES, AN OPINION OF COUNSEL FOR
THE LENDER, REASONABLY ACCEPTABLE TO THE COMPANY, THAT SUCH
REGISTRATION AND QUALIFICATION ARE NOT REQUIRED.
DELTA MUTUAL, INC.
4% CONVERTIBLE PROMISSORY NOTE "A"
$157,000 July 1, 2004
Sellersville, Pennsylvania
FOR VALUE RECEIVED, DELTA MUTUAL INC., a Delaware corporation (the
"COMPANY"), with offices at 000 Xxxxx Xxxxxx Xxxxxx, Xxxxxxxxxxxx, XX
00000, promises to pay to Xxxx Xxxxxx, an individual, (the "LENDER"),
of 00000 Xx. Xxxxxxx Xxxxxx, # 000, Xxxx Xxxxx, XX 00000 in lawful
money of the United States of America, the principal sum of One Hundred
Fifty Seven Thousand Dollars ($157,000), together with interest from
the date of this Note on the unpaid principal balance at a rate equal
to four percent (4.0%) per annum, computed on the basis of the actual
number of days elapsed and a year of 365 days and compounded quarterly
on the last day of each calendar quarter. All unpaid principal,
together with any then unpaid and accrued interest and other amounts
payable hereunder, shall be due and payable at any time after the
earlier of (i) the Maturity Date (as defined below), or (ii) when, upon
or after the occurrence of an Event of Default (as defined below), such
amounts are declared due and payable by the Lender or made
automatically due and payable in accordance with the terms hereof.
The following is a statement of the rights of the Lender and the
conditions to which this Note is subject, and to which the Lender, by the
acceptance of this Note, agrees:
1.DEFINITIONS. As used in this Note, the following capitalized terms have the
following meanings:
1.1 "COMMON STOCK" shall mean the common stock, par value $.0001 per
share, of Delta Mutual, Inc., a Delaware corporation.
1.2 "COMPANY" includes the corporation initially executing this Note
and any Person which shall succeed to or assume the obligations of the Company
under this Note.
1.3 "COMPANY SALE" shall mean a merger or reorganization of the Company
with or into any other corporation or corporations, where the Company's
shareholders immediately prior to such transaction or transactions own
immediately after such transaction less than a majority of the voting equity
securities of the surviving corporation or its parent, or a sale of
substantially all of the assets of the Company.
1.4 "EVENT OF DEFAULT" has the meaning given in Section 6 hereof.
1.5 "LENDER" shall mean the Person specified in the introductory
paragraph of this Note or any Person who shall at the time be the registered
holder of this Note.
1.6 "MATURITY DATE" shall mean December 31, 2006.
1.7 "OBLIGATIONS" shall mean all obligations, owed by the Company to
the Lender, now existing or hereafter arising under or pursuant to the terms of
this Note.
1.8 "PERSON" shall mean and include an individual, a partnership, a
corporation (including a business trust), a joint stock the Company, a limited
liability the Company, an unincorporated association, a joint venture or other
entity or a governmental authority.
2. Interest. All accrued and unpaid interest on this Note shall be due and
payable on the Maturity Date.
3. SENIORITY. This Note shall be senior to all general obligations of the
Company including, trade payables and other obligations incurred in the ordinary
course of business.
4. REPAYMENT AT THE COMPANY'S OPTION. At any time after January 1, 2005 and
prior to the Maturity Date, the Company may repay this Note, including all
interest accrued on this Note, without penalty or premium, in whole or in part;
provided that any such repayment will be applied first to the payment of unpaid
interest accrued on this Note and second, to the payment of principal of this
Note, by providing thirty (30) days prior written notice to the Lender.
Notwithstanding the foregoing, prior to the expiration of the thirty-day notice
period, the Lender shall have the right to convert this Note in accordance
herewith prior to any such repayment, subject to the limitation set forth in
Section 8.1 hereof.
5. REPRESENTATIONS AND WARRANTIES OF THE LENDER. The Lender represents and
warrants to the Company upon the acquisition of the Note as follows:
5.1 Binding Obligation. The Lender has full legal capacity, power and
authority to execute and deliver this Note and to perform its obligations
hereunder. This Note is a valid and binding obligation of the Lender,
enforceable in accordance with its terms, except as limited by bankruptcy,
insolvency or other laws of general application relating to or affecting the
enforcement of creditors' rights generally and general principles of equity.
5.2 Securities Law Compliance. The Lender has been advised that this
Note has not been registered under the Securities Act of 1933, as amended (the
"Securities Act"), or any state securities laws and, therefore, cannot be resold
unless it is registered under the Securities Act and applicable state securities
laws or unless an exemption from such registration requirements is available.
The Lender is aware that the Company is under no obligation to effect any such
registration with respect to this Note or to file for or comply with any
exemption from registration. The Lender is purchasing this Note for its own
account for investment, not as a nominee or agent, and not with a view to, or
for resale in connection with, the distribution thereof. The Lender has such
knowledge and experience in financial and business matters that the Lender is
capable of evaluating the merits and risks of such investment, is able to incur
a complete loss of such investment and is able to bear the economic risk of such
investment for an indefinite period of time.
6. EVENTS OF DEFAULT. The occurrence of any of the following shall constitute an
"Event of Default" under this Note:
6.1 Failure to Comply With Covenants. The Company shall have failed to
perform, keep, or observe any other material term, provision, condition,
covenant, or agreement contained in this Note and has failed to cure such
default within fifteen (15) business days after the Company's receipt of written
notice from the Lender of such default;
6.2 Voluntary Bankruptcy or Insolvency Proceedings. The Company shall
(I) apply for or consent to the appointment of a receiver, trustee, liquidator
or custodian of itself or of all or a substantial part of its property, (II) be
unable, or admit in writing its inability, to pay its debts generally as they
mature, (III) make a general assignment for the benefit of its or any of its
creditors, (IV) be dissolved or liquidated, (V) become insolvent (as such term
may be defined or interpreted under any applicable statute), (VI) commence a
voluntary case or other proceeding seeking liquidation, reorganization or other
relief with respect to itself or its debts under any bankruptcy, insolvency or
other similar law now or hereafter in effect or consent to any such relief or to
the appointment of or taking possession of its property by any official in an
involuntary case or other proceeding commenced against it, or (VII) take any
action for the purpose of effecting any of the foregoing; or
6.3 Involuntary Bankruptcy or Insolvency Proceedings. Proceedings for
the appointment of a receiver, trustee, liquidator or custodian of the Company
or of all or a substantial part of the property thereof, or an involuntary case
or other proceedings seeking liquidation, reorganization or other relief with
respect to the Company or the debts thereof under any bankruptcy, insolvency or
other similar law now or hereafter in effect shall be commenced and an order for
relief entered or such proceeding shall not be dismissed or discharged within
sixty (60) days of commencement.
7. RIGHTS OF THE LENDER UPON DEFAULT. Upon the occurrence or existence of any
Event of Default (other than an Event of Default referred to in Sections 6.2 and
63) and at any time thereafter during the continuance of such Event of Default,
the Lender may, by written notice to the Company, declare all outstanding
Obligations payable by the Company hereunder to be immediately due and payable
without presentment, demand, protest or any other notice of any kind, all of
which are hereby expressly waived. Upon the occurrence or existence of any Event
of Default described in Sections 6.2 and 6.3, immediately and without notice,
all outstanding Obligations payable by the Company hereunder shall automatically
become immediately due and payable, without presentment, demand, protest or any
other notice of any kind, all of which are hereby expressly waived. In addition
to the foregoing remedies, upon the occurrence or existence of any Event of
Default, the Lender may exercise any other right, power or remedy otherwise
permitted to it by law, either by suit in equity or by action at law, or both.
8. Conversion.
8.1 Optional Conversion. At any time after October 1, 2004 and prior to
the Maturity Date, the Lender may convert all or any portion of the outstanding
principal balance of this Note, and, unless paid in cash by or on behalf of the
Company, all accrued and unpaid interest thereon, into fully paid and
nonassessable shares of Common Stock. The number of shares of Common Stock into
which this Note may be converted (the "Conversion Shares") shall be determined
by dividing the aggregate principal amount, and, if applicable, accrued and
unpaid interest, of the Note by the Conversion Price (as defined below) in
effect at the time of such conversion. The "Conversion Price" shall be equal to
$0.05 per share (subject to adjustment for stock splits, combinations and other
similar transactions).
8.2 Automatic Conversion. The outstanding principal balance of this
Note and all accrued and unpaid interest thereon shall be automatically
converted upon the occurrence of a Company Sale into fully paid and
nonassessable shares of Common Stock without any action by the Lender and
whether or not the Note is surrendered to the Company or its transfer agent. The
Company shall not be obligated to issue certificates evidencing the Conversion
Shares upon a Company Sale unless this Note is either delivered to the Company
or its transfer agent, or the Lender notifies the Company or its transfer agent
that this Note has been lost, stolen or destroyed and executes an agreement
satisfactory to the Company to indemnify the Company from any loss incurred by
it in connection with this Note. The number of Conversion Shares into which this
Note shall be converted upon a Company Sale shall be determined by dividing the
aggregate principal amount, and, if applicable, accrued and unpaid interest, of
the Note by the Conversion Price in effect at the time of such conversion. Such
conversion shall be deemed to have been made immediately prior to the close of
business of the date of closing of the Company Sale.
8.3 Fractional Shares; Effect of Conversion. No fractional shares shall
be issued upon conversion of this Note. Cash shall be paid to the Lender in lieu
of any fractional share. Upon conversion of this Note in full, the Company shall
be forever released from all its obligations and liabilities under this Note.
8.4 Reservation of Stock Issuable Upon Conversion. The Company shall at
all times reserve and keep available out of its authorized but unissued shares
of Common Stock solely for the purpose of effecting the conversion of this Note
such number of its shares of Common Stock as shall from time to time be
sufficient to effect the conversion of the Note; and if at any time the number
of authorized but unissued shares of Common Stock shall not be sufficient to
effect the conversion of the entire outstanding principal amount and, if
applicable, accrued and unpaid interest, of the Note, without limitation of such
other remedies as shall be available to the Lender of this Note, the Company
will use its best efforts to take such corporate action as may, in the opinion
of counsel, be necessary to increase its authorized but unissued shares of
Common Stock to such number of shares as shall be sufficient for such purposes.
8.5 Adjustment to Conversion Price. In the event that the Company shall
at any time subdivide the outstanding securities into which this Note shall be
convertible, or shall issue a stock dividend on the securities into which this
Note shall be convertible, the number of Conversion Shares immediately prior to
such subdivision or to the issuance of such stock dividend shall be
proportionately increased, and the Conversion Price shall be proportionately
decreased, and in the event that the Company shall at any time combine the
outstanding securities into which this Note shall be convertible, the number of
Conversion Shares immediately prior to such combination shall be proportionately
decreased, and the Conversion Price shall be proportionately increased,
effective at the close of business on the date of such subdivision, stock
dividend or combination, as the case may be.
8.6 Maturity. At the Maturity Date, the outstanding principal balance
of this Note and, unless paid in cash by or on behalf of the Company, all
accrued and unpaid interest thereon, shall be automatically converted into fully
paid and nonassessable shares of Common Stock. The number of Conversion Shares
shall be determined by dividing the aggregate principal amount and accrued and
unpaid interest by the Conversion Price in effect at the time of such
conversion.
9. COVENANTS OF THE COMPANY. The Company will, until the earlier to occur of the
conversion or repayment in full of this Note, have authorized a sufficient
number of shares of each class or series of capital stock into which this Note
is convertible pursuant to Section 8 hereof and shall reserve for issuance upon
conversion hereof a sufficient number of shares thereof.
10. REGISTRATION RIGHTS. If at any time, the Company proposes to register any of
its securities under the Securities Act (the "Act"), whether or not for its own
account (other than by a registration statement on Form S-8 or Form S-4), it
shall give written notice to Lender of its intent to file a registration
statement and include in such registration statement that number of Conversion
Shares held by Xxxxxx , subject to the limitations set forth in this Section 10
("Piggyback Registration Rights").
10.1 Underwritten Public Offerings. If The Company elects to register
its securities by or through an underwriter, the Lender may elect to sell its
Conversion Shares on the same terms and conditions as apply to other selling
shareholders or may elect not to have its Conversion Shares included in such
registration. The Company shall pay all expenses in connection with the
registration of Lenders Conversion Shares pursuant to the Piggyback Registration
Rights.
10.2 Priority in Piggyback Registration. The Company shall not be
required to include any Conversion Shares to the extent the managing underwriter
reasonably believes and advises Lender that inclusion of such shares would
materially adversely affect such offering; provided, however, that any such
reduction or elimination shall be pro rata among all other holders of Common
Stock exercising any registration rights in proportion to the respective number
of shares of Common Stock requested to be registered, if any.
11. SUCCESSORS AND ASSIGNS. Subject to the restrictions on transfer described in
Sections 13 and 14 below, the rights and obligations of the Company and the
Lender of this Note shall be binding upon and benefit the successors, assigns,
heirs, administrators and transferees of the parties.
12. WAIVER AND AMENDMENT. Any provision of this Note may be amended, waived or
modified upon the written consent of the Company and the Lender.
13. TRANSFER OF THIS NOTE OR SECURITIES ISSUABLE ON CONVERSION HEREOF. This Note
may not be sold, assigned or transferred by the Lender. With respect to any
offer, sale or other disposition of the securities into which this Note may be
converted, the Lender will give written notice to the Company prior thereto,
describing briefly the manner thereof, together with a written opinion of the
Lender's counsel, or other evidence if reasonably satisfactory to the Company,
to the effect that such offer, sale or other distribution may be effected
without registration or qualification (under any federal or state law then in
effect). Upon receiving such written notice and reasonably satisfactory opinion,
if so requested, or other evidence, the Company, as promptly as practicable,
shall notify the Lender that the Lender may sell or otherwise dispose of such
securities, all in accordance with the terms of the notice delivered to the
Company. If a determination has been made pursuant to this Section 12 that the
opinion of counsel for the Lender, or other evidence, is not reasonably
satisfactory to the Company, the Company shall so notify the Lender promptly
after such determination has been made. Each certificate representing the
securities thus transferred shall bear a legend as to the applicable
restrictions on transferability in order to ensure compliance with the
Securities Act, unless in the opinion of counsel for the Company such legend is
not required in order to ensure compliance with the Securities Act. The Company
may issue stop transfer instructions to its transfer agent in connection with
such restrictions. Subject to the foregoing, transfers of this Note or the
securities underlying this Note shall be registered upon registration books
maintained for such purpose by or on behalf of the Company. Prior to
presentation of this Note or such securities for registration of transfer, the
Company shall treat the registered Lender hereof as the owner and holder of this
Note for the purpose of receiving all payments of principal and interest hereon
and for all other purposes whatsoever, whether or not this Note shall be
overdue, and the Company shall not be affected by notice to the contrary.
14. ASSIGNMENT BY THE COMPANY. Neither this Note nor any of the rights,
interests or obligations hereunder may be assigned, by operation of law or
otherwise, in whole or in part, by the Company without the prior written consent
of the Lender.
15. NOTICES. All notices, requests, demands, consents, instructions or other
communications required or permitted hereunder shall in writing and faxed,
mailed or delivered to each party at the respective addresses or facsimile
numbers of the parties. All such notices and communications shall be effective
(A) when sent by Federal Express or other overnight service of recognized
standing, on the business day following the deposit with such service; (B) when
mailed, by registered or certified mail, first class postage prepaid and
addressed as aforesaid through the United States Postal Service, upon receipt;
(C) when delivered by hand, upon delivery; and (D) when faxed, upon confirmation
of receipt.
16. USURY. In the event any interest is paid on this Note that is deemed to be
in excess of the then legal maximum rate, then that portion of the interest
payment representing an amount in excess of the then legal maximum rate shall be
deemed a payment of principal and applied against the principal of this Note.
17. WAIVERS. The Company hereby waives notice of default, presentment or demand
for payment, protest or notice of nonpayment or dishonor and all other notices
or demands relative to this instrument.
18. GOVERNING LAW. This Note and all actions arising out of or in connection
with this Note shall be governed by and construed in accordance with the laws of
the Commonwealth of Pennsylvania, without regard to the conflicts of law
provisions of the Commonwealth of Pennsylvania, or of any other state.
IN WITNESS WHEREOF, The Company has caused this Note to be issued as of
the date first written above.
DELTA MUTUAL, INC.
a Delaware corporation
By /s/ Xxxxx X. Xxxxx
-----------------------
Name: Xxxxx X. Xxxxx
Title: President & CEO
