EXHIBIT 10.22
THIS NOTE AND THE COMMON SHARES ISSUABLE UPON CONVERSION OF THIS NOTE HAVE NOT
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED. THIS NOTE AND THE
COMMON SHARES ISSUABLE UPON CONVERSION OF THIS NOTE MAY NOT BE SOLD, OFFERED FOR
SALE, PLEDGED OR HYPOTHECATED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION
STATEMENT AS TO THIS NOTE UNDER SAID ACT OR AN OPINION OF COUNSEL REASONABLY
SATISFACTORY TO SAVOY RESOURCES CORP. THAT SUCH REGISTRATION IS NOT REQUIRED.
SECURED CONVERTIBLE NOTE
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FOR VALUE RECEIVED, SAVOY RESOURCES CORP., a Colorado corporation
(hereinafter called "Borrower"), hereby promises to pay to ALPHA CAPITAL
AKTIENGESELLSCHAFT, Xxxxxxxxx 0, Xxxxxxxxxxx, Xxxxx, Xxxxxxxxxxxx, Fax:
000-00-00000000 (the "Holder") or order, without demand, the sum of Four Hundred
and Twenty-Five Thousand Dollars ($425,000.00), with simple interest accruing on
August 5, 2006 (the "Maturity Date"), if not paid sooner.
This Note has been entered into pursuant to the terms of a subscription
agreement between the Borrower and the Holder, dated of even date herewith (the
"Subscription Agreement"), and shall be governed by the terms of such
Subscription Agreement. Unless otherwise separately defined herein, all
capitalized terms used in this Note shall have the same meaning as is set forth
in the Subscription Agreement. The following terms shall apply to this Note:
ARTICLE I
GENERAL PROVISIONS
1.1 Interest Rate. Simple interest payable on this Note shall accrue at the
annual rate of five percent (5%) and be payable upon each Conversion, and on the
Maturity Date, accelerated or otherwise, when the principal and remaining
accrued but unpaid interest shall be due and payable, or sooner as described
below.
1.2 Conversion Privileges. The Conversion Privileges set forth in Article
II shall remain in full force and effect immediately from the date hereof and
until the Note is paid in full, regardless of the occurrence of an Event of
Default. The Note shall be payable in full on the Maturity Date, unless
previously converted into Common Stock in accordance with Article II hereof;
provided that, if an Event of Default has occurred, the Borrower may not pay
this Note, without the consent of the Holder, until up to one year after the
later of the date the Event of Default has been cured or one year after the
Maturity Date.
1.3 Default Interest Rate. A default interest rate of fifteen percent (15%)
per annum shall apply to amounts owed hereunder that are not paid on their
respective due dates.
1.4 Pre-Payment. Commencing on the date that the Registration Statement
described in Section 11.1(iv) of the Subscription Agreement has been declared
effective, upon thirty day's prior written notice, during which period Holder
may convert all or part of this Note, the Borrower may prepay any part or all of
this Note at any time with a 30% premium. Each payment or pre-payment made by
the Borrower hereunder shall be applied first to the payment or pre-payment of
accrued and unpaid interest, if any, due on the unpaid principal balance of this
Note and the remainder of each payment or pre-payment made by the Borrower shall
be applied to the reduction of the unpaid principal balance hereof. Notice of
payment or pre-payment may be given and be effective provided that the
Registration Statement is effective during the thirty day notice period and no
Event of Default has occurred during such thirty day notice period.
ARTICLE II
CONVERSION RIGHTS
The Holder shall have the right to convert the principal due under this
Note into Shares of the Borrower's Common Stock, $.001 par value per share
("Common Stock"), as set forth below.
2.1. Conversion into the Borrower's Common Stock.
(a) The Holder shall have the right from and after the date of the issuance
of this Note and then at any time until this Note is fully paid, to convert any
outstanding and unpaid principal portion of this Note, and accrued interest, at
the election of the Holder (the date of giving of such notice of conversion
being a "Conversion Date") into fully paid and nonassessable shares of Common
Stock as such stock exists on the date of issuance of this Note, or any shares
of capital stock of Borrower into which such Common Stock shall hereafter be
changed or reclassified, at the conversion price as defined in Section 2.1(b)
hereof (the "Conversion Price"), determined as provided herein. Upon delivery to
the Borrower of a completed Notice of Conversion, a form of which is annexed
hereto, Borrower shall issue and deliver to the Holder within five (5) business
days from the Conversion Date (such fifth day being the "Delivery Date") that
number of shares of Common Stock for the portion of the Note converted in
accordance with the foregoing. At the election of the Holder, the Borrower will
deliver accrued but unpaid interest on the Note in the manner provided in
Section 1.3 through the Conversion Date directly to the Holder on or before the
Delivery Date (as defined in the Subscription Agreement). The number of shares
of Common Stock to be issued upon each conversion of this Note shall be
determined by dividing that portion of the principal of the Note and interest to
be converted, by the Conversion Price.
(b) Subject to adjustment as provided in Section 2.1(c) hereof, the
Conversion Price per share shall be $0.17.
(c) The Conversion Price and number and kind of shares or other securities
to be issued upon conversion determined pursuant to Section 2.1(a), shall be
subject to adjustment from time to time upon the happening of certain events
while this conversion right remains outstanding, as follows:
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X. Xxxxxx, Sale of Assets, etc. If the Borrower at any time shall
consolidate with or merge into or sell or convey all or substantially all its
assets to any other corporation, this Note, as to the unpaid principal portion
thereof and accrued interest thereon, shall thereafter be deemed to evidence the
right to purchase such number and kind of shares or other securities and
property as would have been issuable or distributable on account of such
consolidation, merger, sale or conveyance, upon or with respect to the
securities subject to the conversion or purchase right immediately prior to such
consolidation, merger, sale or conveyance. The foregoing provision shall
similarly apply to successive transactions of a similar nature by any such
successor or purchaser. Without limiting the generality of the foregoing, the
anti-dilution provisions of this Section shall apply to such securities of such
successor or purchaser after any such consolidation, merger, sale or conveyance.
B. Reclassification, etc. If the Borrower at any time shall, by
reclassification or otherwise, change the Common Stock into the same or a
different number of securities of any class or classes that may be issued or
outstanding, this Note, as to the unpaid principal portion thereof and accrued
interest thereon, shall thereafter be deemed to evidence the right to purchase
an adjusted number of such securities and kind of securities as would have been
issuable as the result of such change with respect to the Common Stock
immediately prior to such reclassification or other change.
C. Stock Splits, Combinations and Dividends. If the shares of Common Stock
are subdivided or combined into a greater or smaller number of shares of Common
Stock, or if a dividend is paid on the Common Stock in shares of Common Stock,
the Conversion Price shall be proportionately reduced in case of subdivision of
shares or stock dividend or proportionately increased in the case of combination
of shares, in each such case by the ratio that the total number of shares of
Common Stock outstanding immediately after such event bears to the total number
of shares of Common Stock outstanding immediately prior to such event.
D. Share Issuance. So long as this Note is outstanding, if the Borrower
shall issue or agree to issue any shares of Common Stock except for the Excepted
Issuances (as defined in the Subscription Agreement) for a consideration less
than the Conversion Price in effect at the time of such issue, then, and
thereafter successively upon each such issue, the Conversion Price shall be
reduced to such other lower issue price. For purposes of this adjustment, the
issuance of any security carrying the right to convert such security into shares
of Common Stock or of any warrant, right or option to purchase Common Stock
shall result in an adjustment to the Conversion Price upon the issuance of the
above-described security and again upon the issuance of shares of Common Stock
upon exercise of such conversion or purchase rights if such issuance is at a
price lower than the Conversion Price. The reduction of the Conversion Price
described in this paragraph is in addition to other rights of the Holder
described in this Note and the Subscription Agreement.
(d) Whenever the Conversion Price is adjusted pursuant to Section 2.1(c)
above, the Borrower shall promptly mail to the Holder a notice setting forth the
Conversion Price after such adjustment and setting forth a statement of the
facts requiring such adjustment.
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(e) During the period the conversion right exists, Borrower will reserve
from its authorized and unissued Common Stock not less than 105% of the number
of shares of Common Stock issuable upon the full conversion of this Note.
Borrower represents that, upon issuance, such shares will be duly and validly
issued, fully paid and non-assessable. Xxxxxxxx agrees that its issuance of this
Note shall constitute full authority to its officers, agents and transfer agents
who are charged with the duty of executing and issuing stock certificates to
execute and issue the necessary certificates for shares of Common Stock upon the
conversion of this Note.
2.2 Method of Conversion. This Note may be converted by the Holder in whole
or in part as described in Section 2.1(a) hereof and the Subscription Agreement.
Upon partial conversion of this Note, a new Note containing the same date and
provisions of this Note shall, at the request of the Holder, be issued by the
Borrower to the Holder for the principal balance of this Note and interest that
shall not have been converted or paid.
2.3 Maximum Conversion. The Holder shall not be entitled to convert on a
Conversion Date that amount of the Note in connection with that number of shares
of Common Stock that would be in excess of the sum of (i) the number of shares
of Common Stock beneficially owned by the Holder and its affiliates on a
Conversion Date, (ii) any Common Stock issuable in connection with the
unconverted portion of the Note, and (iii) the number of shares of Common Stock
issuable upon the conversion of the Note with respect to which the determination
of this provision is being made on a Conversion Date, which would result in
beneficial ownership by the Holder and its affiliates of more than 4.99% of the
outstanding shares of Common Stock of the Borrower on such Conversion Date. For
the purposes of the provision of the immediately preceding sentence, beneficial
ownership shall be determined in accordance with Section 13(d) of the Securities
Exchange Act of 1934, as amended, and Regulation 13d-3 thereunder. Subject to
the foregoing, the Holder shall not be limited to aggregate conversions of only
4.99% and aggregate conversion by the Holder may exceed 4.99%. The Holder shall
have the authority and obligation to determine whether the restriction contained
in this Section 2.3 will limit any conversion hereunder and to the extent that
the Holder determines that the limitation contained in this Section applies, the
determination of which portion of the Notes are convertible shall be the
responsibility and obligation of the Holder. The Holder may waive the conversion
limitation described in this Section 2.3, in whole or in part, upon and
effective after 61 days prior written notice to the Borrower. The Holder may
decide whether to convert a Note or exercise Warrants to achieve an actual 4.99%
ownership position.
2.4. Mandatory Conversion. Provided an Event of Default (or an event that
with the passage of time or the giving of notice could become an Event of
Default) has not occurred, then, commencing after the date the Registration
Statement described in Section 11.1(iv) of the Subscription Agreement has been
declared effective ("Actual Effective Date"), the Borrower will have the option
by written notice to the Holder ("Notice of Mandatory Conversion") of compelling
the Holder to convert the outstanding and unpaid principal of this Note into
Common Stock at the Conversion Price then in effect ("Mandatory Conversion").
The Notice of Mandatory Conversion must be given, if at all, on the first
business day following a consecutive ten (10) day trading period ("Lookback
Period") during which the closing bid price for the Borrower's Common Stock, as
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reported by Bloomberg, LP for the Principal Market, is more than $0.50 each day
during the Lookback Period. The date the Notice of Mandatory Conversion is given
is the "Mandatory Conversion Date." The Notice of Mandatory Conversion shall
specify the aggregate principal amount of the Note that is subject to Mandatory
Conversion. Mandatory Conversion Notices must be given proportionately to all
Holders of Notes who received Notes similar in terms and tenure as this Note. A
Notice of Mandatory Conversion may not be given unless the Registration
Statement (as defined in the Subscription Agreement) has been effective for the
unrestricted public resale of the Registrable Securities (as defined in the
Subscription Agreement) each day during the Lookback Period. The amount of Note
principal included in a Mandatory Redemption Notice shall be further reduced to
an amount that would not cause the Holder to exceed the limitation described in
Section 2.3 of this Note. A further Mandatory Conversion Notice may not be given
until twenty (20) trading days have elapsed from the preceding Mandatory
Conversion Date. Each Mandatory Conversion Date shall be a deemed Conversion
Date and the Borrower will be required to deliver the Common Stock issuable
pursuant to a Mandatory Conversion Notice in the same manner and time period as
described in Section 2.1 above.
2.5 Release of Security Interest in Collateral. Upon the later of (i) the
conversion by the Holders of an aggregate of not less than $600,000 of principal
amount of Notes, or (ii) until each Holder of a Note issued pursuant to the
Subscription Agreements holds less than $150,000 of Note Principal, the Holders
and Xxxxxxx Xxxxxxx, the Collateral Agent provided for in the Security
Agreement, shall release their security interest in all of the assets of the
Company, including ownership of Subsidiaries, which are defined as the
"Collateral" in Section 3.2 of the Security Agreement, and the Security
Agreement and the Collateral Agent Agreement shall be null and void for all
purposes. For purposes of this Section 2.5, conversion of a Note may be by
exercise by the Holder of its right to convert the Note pursuant to Section 2.1
hereof or by mandatory conversion pursuant to Section 2.4 above.
ARTICLE III
EVENT OF DEFAULT
The occurrence of any of the following events of default ("Event of
Default") shall, at the option of the Holder hereof, make all sums of principal
and interest then remaining unpaid hereon and all other amounts payable
hereunder immediately due and payable, upon demand, without presentment, or
grace period, all of which hereby are expressly waived, except as set forth
below:
3.1 Failure to Pay Principal or Interest. The Borrower fails to pay any
installment of principal, interest or other sum due under this Note when due and
such failure continues for a period of ten (10) business days after the due
date.
3.2 Breach of Covenant. The Borrower breaches any material covenant or
other term or condition of the Subscription Agreement or this Note in any
material respect and such breach, if subject to cure, continues for a period of
ten (10) business days after written notice to the Borrower from the Holder.
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3.3 Breach of Representations and Warranties. Any material representation
or warranty of the Borrower made herein, in the Subscription Agreement, or in
any agreement, statement or certificate given in writing pursuant hereto or in
connection therewith shall be false or misleading in any material respect as of
the date made and the Closing Date.
3.4 Receiver or Trustee. The Borrower shall make an assignment for the
benefit of creditors, or apply for or consent to the appointment of a receiver
or trustee for it or for a substantial part of its property or business; or such
a receiver or trustee shall otherwise be appointed without the consent of the
Borrower and not be dismissed within sixty (60) days of appointment.
3.5 Judgments. Any money judgment, writ or similar final process shall be
entered or filed against Borrower or any of its property or other assets for
more than $50,000, and shall remain unvacated, unbonded or unstayed for a period
of forty-five (45) days.
3.6 Bankruptcy. Bankruptcy, insolvency, reorganization or liquidation
proceedings or other proceedings or relief under any bankruptcy law, or the
issuance of any notice in relation to such event, for the relief of debtors
shall be instituted by or against the Borrower and, if instituted against
Borrower, are not dismissed within forty-five (45) days of initiation.
3.7 Delisting. Delisting of the Common Stock from any Principal Market;
failure to comply with the requirements for continued listing on a Principal
MIarket for a period of five consecutive trading days; or notification from any
PrIincipal Market that the Borrower is not in compliance with the conditions for
such continued listing on such Principal Market.
3.8 Non-Payment. A default by the Borrower under any one or more
obligations in an aggregate monetary amount in excess of $75,000 for more than
twenty days after the due date, unless the Borrower is contesting the validity
of such obligation in good faith.
3.9 Stop Trade. An SEC or judicial stop trade order or Principal Market
trading suspension that lasts for five or more consecutive trading days.
3.10 Failure to Deliver Common Stock or Replacement Note. Xxxxxxxx's
failure to timely deliver Common Stock to the Holder pursuant to and in the form
required by this Note and Sections 7 and 11 of the Subscription Agreement, or,
if required, a replacement Note.
3.11 Non-Registration Event. The occurrence of a Non-Registration Event as
described in Section 11.4 of the Subscription Agreement.
3.12 Reservation Default. Failure by the Borrower to have reserved for
issuance upon conversion of the Note the amount of Common Stock as set forth in
this Note and the Subscription Agreement.
3.13 Cross Default. A default by the Borrower under a material term,
covenant, warranty or undertaking of any other agreement to which the Borrower
and Holder are parties, or the occurrence of a material event of default under
any such other agreement that is not cured after any required notice and/or cure
period.
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ARTICLE IV
SECURITY INTEREST
4. Security Interest/Waiver of Automatic Stay. This Note is secured by a
security interest granted to the Collateral Agent for the benefit of the Holder
pursuant to a Security Agreement, as delivered by Borrower to Holder. The
Borrower acknowledges and agrees that should a proceeding under any bankruptcy
or insolvency law be commenced by or against the Borrower, or if any of the
Collateral (as defined in the Security Agreement) should become the subject of
any bankruptcy or insolvency proceeding, then the Holder should be entitled to,
among other relief to which the Holder may be entitled under the Transaction
Documents and any other agreement to which the Borrower and Holder are parties
(collectively, "Loan Documents") and/or applicable law, an order from the court
granting immediate relief from the automatic stay pursuant to 11 U.S.C. Section
362 to permit the Holder to exercise all of its rights and remedies pursuant to
the Loan Documents and/or applicable law. THE BORROWER EXPRESSLY WAIVES THE
BENEFIT OF THE AUTOMATIC STAY IMPOSED BY 11 U.S.C. SECTION 362. FURTHERMORE, THE
BORROWER EXPRESSLY ACKNOWLEDGES AND AGREES THAT NEITHER 11 U.S.C. SECTION 362
NOR ANY OTHER SECTION OF THE BANKRUPTCY CODE OR OTHER STATUTE OR RULE
(INCLUDING, WITHOUT LIMITATION, 11 U.S.C. SECTION 105) SHALL STAY, INTERDICT,
CONDITION, REDUCE OR INHIBIT IN ANY WAY THE ABILITY OF THE HOLDER TO ENFORCE ANY
OF ITS RIGHTS AND REMEDIES UNDER THE LOAN DOCUMENTS AND/OR APPLICABLE LAW. The
Borrower hereby consents to any motion for relief from stay that may be filed by
the Holder in any bankruptcy or insolvency proceeding initiated by or against
the Borrower and, further, agrees not to file any opposition to any motion for
relief from stay filed by the Holder. The Borrower represents, acknowledges and
agrees that this provision is a specific and material aspect of the Loan
Documents, and that the Holder would not agree to the terms of the Loan
Documents if this waiver were not a part of this Note. The Borrower further
represents, acknowledges and agrees that this waiver is knowingly, intelligently
and voluntarily made, that neither the Holder nor any person acting on behalf of
the Holder has made any representations to induce this waiver, that the Borrower
has been represented (or has had the opportunity to be represented) in the
signing of this Note and the Loan Documents and in the making of this waiver by
independent legal counsel selected by the Borrower and that the Borrower has
discussed this waiver with counsel.
ARTICLE V
MISCELLANEOUS
5.1 Failure or Indulgence Not Waiver. No failure or delay on the part of
Holder hereof in the exercise of any power, right or privilege hereunder shall
operate as a waiver thereof, nor shall any single or partial exercise of any
such power, right or privilege preclude other or further exercise thereof or of
any other right, power or privilege. All rights and remedies existing hereunder
are cumulative to, and not exclusive of, any rights or remedies otherwise
available.
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5.2 Notices. All notices, demands, requests, consents, approvals and other
communications required or permitted hereunder shall be in writing and, unless
otherwise specified herein, shall be (i) personally served, (ii) deposited in
the mail, registered or certified, return receipt requested, postage prepaid,
(iii) delivered by reputable air courier service with charges prepaid, or (iv)
transmitted by hand delivery, telegram or facsimile, addressed as set forth
below or to such other address as such party shall have specified most recently
by written notice. Any notice or other communication required or permitted to be
given hereunder shall be deemed effective (a) upon hand delivery or delivery by
facsimile, with accurate confirmation generated by the transmitting facsimile
machine, at the address or number designated below (if delivered on a business
day during normal business hours where such notice is to be received), or the
first business day following such delivery (if delivered other than on a
business day during normal business hours where such notice is to be received)
or (b) on the second business day following the date of mailing by express
courier service, fully prepaid, addressed to such address, or upon actual
receipt of such mailing, whichever shall first occur. The addresses for such
communications shall be: (i) if to the Borrower to: Savoy Resources Corp., 18826
Pagentry Place, Monument, Colorado 80132, Attn: Xxxxxx Xxxxxxx, President and
CEO, telecopier: 011-27-11-807-1449, with an additional copy by telecopier only
to: Xxxxxxxx Xxxx, Esq., Xxxx & Associates, 18826 Pagentry Place, Monument,
Colorado 80132, telecopier: (000) 000-0000, and (ii) if to the Holder, to the
name, address and telecopy number set forth on the front page of this Note, with
a copy by telecopier only to Grushko & Xxxxxxx, P.C., 000 Xxxxx Xxxxxx, Xxxxx
0000, Xxx Xxxx, Xxx Xxxx 00000, telecopier number: (000) 000-0000.
5.3 Amendment Provision. The term "Note" and all reference thereto, as used
throughout this instrument, shall mean this instrument as originally executed,
or if later amended or supplemented, then as so amended or supplemented.
5.4 Assignability. The obligations of Borrower under this Note are not
assignable without the consent of the Holder. This Note shall be binding upon
the Borrower and its successors and assigns, and shall inure to the benefit of
the Holder and its successors and assigns.
5.5 Cost of Collection. If default is made in the payment of this Note,
Borrower shall pay the Holder hereof reasonable costs of collection, including
reasonable attorney's fees.
5.6 Governing Law. This Note shall be governed by and construed in
accordance with the laws of the State of New York. Any action brought by either
party against the other concerning the transactions contemplated by this
Agreement shall be brought only in the civil state courts of New York or in the
federal courts located in the State and county of New York. Both parties and the
individual signing this Agreement on behalf of the Borrower agree to submit to
the jurisdiction of such courts. The prevailing party shall be entitled to
recover from the other party its reasonable attorney's fees and costs.
5.7 Maximum Payments. Nothing contained herein shall be deemed to establish
or require the payment of a rate of interest or other charges in excess of the
maximum permitted by applicable law. In the event that the rate of interest
required to be paid or other charges hereunder exceed the maximum permitted by
such law, any payments in excess of such maximum shall be credited against
amounts owed by the Borrower to the Holder and thus refunded to the Borrower.
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5.8 Shareholder Status. The Holder shall not have rights as a shareholder
of the Borrower with respect to unconverted portions of this Note. However, the
Holder will have all the rights of a shareholder of the Borrower with respect to
the shares of Common Stock to be received by Holder after delivery by the Holder
of a Conversion Notice to the Borrower.
IN WITNESS WHEREOF, Xxxxxxxx has caused this Note to be signed in its name
by an authorized officer as of the 5th day of August, 2005.
XXXXX RESCOURCES CORP.
By: /s/ Xxxxxx Xxxxxxx
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Name: Xxxxxx Xxxxxxx
Title: President and CEO
WITNESS:
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NOTICE OF CONVERSION
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(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 Savoy Resources Corp.
on August 5, 2005 into Shares of Common Stock of Savoy Resources Corp. (the
"Borrower") according to the conditions set forth in such Note, as of the date
written below.
Date of Conversion:_____________________________________________________________
Conversion Price:_______________________________________________________________
Shares To Be Delivered:_________________________________________________________
Signature:_____________________________________________________________________
Print Name:____________________________________________________________________
Address:______________________________________________________________________
______________________________________________________________________
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