Annual Report — Small Business — Form 10-KSB
Filing Table of Contents
Document/Exhibit Description Pages Size
1: 10KSB Annual Report -- Small Business 48 261K
3: EX-10.11 Material Contract 2 13K
4: EX-10.12 Material Contract 5 24K
5: EX-10.27 Material Contract 5 22K
6: EX-10.28 Material Contract 4 21K
7: EX-10.29 Material Contract 5 24K
8: EX-10.30 Material Contract 5 25K
9: EX-10.31 Material Contract 5 25K
10: EX-10.32 Material Contract 5 25K
11: EX-10.33 Material Contract 3 16K
12: EX-10.34 Material Contract 2 14K
13: EX-10.35 Material Contract 3 17K
14: EX-10.36 Material Contract 19 106K
15: EX-10.37 Material Contract 4 26K
16: EX-10.38 Material Contract 6 35K
17: EX-10.39 Material Contract 6 30K
2: EX-10.7 Material Contract 2 12K
18: EX-23.1 Consent of Experts or Counsel 1 9K
19: EX-23.2 Consent of Experts or Counsel 1 9K
21: EX-27 Financial Data Schedule (Pre-XBRL) 2 9K
20: EX-99 Miscellaneous Exhibit 9 50K
EX-10.37 — Material Contract
| EX-10.37 | 1st Page of 4 | TOC | ↑Top | Previous | Next | ↓Bottom | Just 1st |
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EXHIBIT 10.37
THIS CONVERTIBLE SECURED PROMISSORY NOTE AND THE SHARES OF COMMON STOCK
ISSUABLE UPON CONVERSION HEREOF HAVE NOT BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED, HAVE NOT BEEN REGISTERED UNDER ANY STATE SECURITIES
LAWS, AND ARE SUBJECT TO A SUBSCRIPTION AND INVESTMENT REPRESENTATION AGREEMENT.
THEY MAY NOT BE SOLD, OFFERED FOR SALE, ASSIGNED, TRANSFERRED, PLEDGED, OR
OTHERWISE DISPOSED OF IN THE ABSENCE OF EITHER AN EFFECTIVE REGISTRATION UNDER
THE SECURITIES ACT OF 1933, AS AMENDED, AND UNDER THE APPLICABLE STATE
SECURITIES LAWS, OR AN OPINION OF COUNSEL REASONABLY ACCEPTABLE TO BIG BUCK
BREWERY & STEAKHOUSE, INC. THAT SUCH TRANSACTION IS EXEMPT FROM REGISTRATION
UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND UNDER APPLICABLE STATE
SECURITIES LAWS.
BIG BUCK BREWERY & STEAKHOUSE, INC.
10% CONVERTIBLE SECURED PROMISSORY NOTE DUE FEBRUARY 2003
$5,876,114.74 Gaylord, Michigan
February 4, 2000
FOR VALUABLE CONSIDERATION, the receipt and sufficiency of which are
hereby acknowledged, the undersigned, Big Buck Brewery & Steakhouse, Inc., a
Michigan corporation (the "Maker" or "Company"), promises to pay to the order of
Wayne County Employees' Retirement System, a body politic of the State of
Michigan (the "Payee"), the principal sum of Five Million, Eight Hundred Seventy
Six Thousand, One Hundred Fourteen and 74/100 Dollars ($5,876,114.74) plus
interest at the rate specified below. The unpaid principal from time to time
outstanding shall bear interest prior to maturity at an annual rate of interest
equal to ten percent (10%) per annum, and all interest accrued on the unpaid
principal balance of this Promissory Note shall be due and payable in arrears as
provided below.
On March 1, 2000, Maker will pay interest only from the date of this Note
through February 29, 2000. Thereafter, the Maker agrees to pay principal and
interest hereunder to Payee in equal monthly installments in an amount which
would fully amortize the principal and interest due hereunder over a period of
300 months, beginning April 1, 2000, until February 1, 2003, on which date the
entire amount due hereunder, including all unpaid principal and interest shall
be due and payable in full.
All interest shall be payable in arrears. Interest hereon shall be
calculated on the basis of a 360-day year applied to the actual number of days
elapsed until all accrued and unpaid interest is paid in full. All interest due
and payable hereunder that is not paid when due for any reason shall be
cumulated, added to the principal and accrue interest at the highest lawful rate
per annum on that delinquent amount until paid, to the extent permitted by law.
All payments of interest and principal shall be payable in lawful currency of
the United States of America ("Currency"), unless and to the extent Payee
exercises Payee's option hereunder to convert all or part of the unpaid
principal balance of this Promissory Note into shares of common stock, par value
$0.01 per share (the "Shares"), of the Maker.
At any time prior to payment in full of this Note, Payee shall have the
option to convert all or part of the unpaid principal balance of this Promissory
Note into that number of Shares of the Maker (the "Option") equal to (i) all or
such part of the unpaid principal balance of the Promissory Note being converted
divided by (ii) $2.42 which is the average of the closing sale price of one
Share as quoted by The NASDAQ Stock Market for the five (5) trading days
immediately prior to the Maker's execution of this Promissory Note (the
"Conversion Price"), subject to the antidilution adjustments presented in the
following Sections, any fractional Shares to be paid in Currency. To exercise
the Option, Payee shall surrender this Promissory Note to the Maker, accompanied
by written notice of Payee's intention to exercise the Option, which notice
shall set forth the principal amount of this Promissory Note and such portion of
the unpaid principal balance of the Promissory Note, if not the entire unpaid
principal balance, to be converted into Shares (the "Notice of Conversion").
Within ten (10) business days after Maker's receipt of the Notice of Conversion
and Payee's surrender of this Promissory Note, Maker shall deliver or cause to
be delivered to the Payee, the Shares in the name of the Payee and a duly
executed, new promissory note in the principal amount of the balance thereof, if
any.
If the Maker shall at any time hereafter subdivide or combine its
outstanding Shares, or declare a dividend payable in its Shares, the Conversion
Price in effect immediately prior to the subdivision, combination, or record
date for such dividend payable in Shares shall forthwith be proportionately
increased, in the case of combination, or proportionately decreased, in the case
of subdivision or declaration of a dividend payable in Shares, and the number of
Shares into which the unpaid principal balance of the Promissory Note may be
converted upon exercise of the Option immediately preceding such event, shall be
changed to the number determined by dividing the then current Conversion Price
by the Conversion Price as adjusted after such subdivision, combination, or
dividend payable in Shares and multiplying the result of such division against
the number of Shares to be acquired upon the exercise of the Option immediately
preceding such event, so as to achieve an Conversion Price and number of Shares
purchasable after such event proportional to such Conversion Price and number of
Shares purchasable immediately preceding such event. All calculations hereunder
shall be made to the nearest cent or to the nearest one-hundredth of a share, as
the case may be. In case of any capital reorganization or any reclassification
of the Shares, or in the case of any consolidation with or merger of the Maker
into or with another corporation, or the sale of all or substantially all of its
assets to another corporation, which is effected in such a manner that the
holders of Shares shall be entitled to receive stock, securities, or assets with
respect to or in exchange for Shares, then, as a part of such reorganization,
reclassification, consolidation, merger, or sale, as the case may be, lawful
provision shall be made so that the holder of this Promissory Note shall have
the right thereafter to receive, upon the exercise hereof, the kind and amount
of shares of stock or other securities or property which the holder would have
been entitled to receive if, immediately prior to such reorganization,
reclassification, consolidation, merger, or sale, the holder had held the number
of Shares into which the unpaid principal balance of the Promissory Note could
have been converted upon exercise of the Option. In any such case, appropriate
adjustment (as determined in good faith by the Board of Directors of the
Company) shall be made in the application of the provisions set forth herein
with respect to the rights and interest thereafter of the holder of the
Promissory Note, to the end that the provisions set forth herein (including
provisions with respect to adjustments of the exercise price) shall thereafter
be applicable, as nearly as reasonably may be, in relation to any shares of
stock or other property thereafter deliverable upon the exercise of the Option.
In the event the Maker shall at any time or from time to time, issue
Shares, options, warrants or rights to subscribe for Shares, or issue any
securities convertible into or exchangeable for Shares, for a consideration per
share (determined by dividing the Net Aggregate Consideration (as determined
below) by the aggregate number of Shares that would be issued if all such
Shares, options, warrants, rights or convertible securities were exercised or
converted to the fullest extent permitted by their terms) less than the
Conversion Price in effect immediately prior to the issuance of such options or
rights or convertible or exchangeable securities, the Conversion Price in effect
immediately prior to the issuance of such options, warrants or rights or
securities shall be reduced to an amount determined by multiplying such
Conversion Price by a fraction:
a. the numerator of which shall be (X) the number of shares of Company's
Common Stock of all classes outstanding immediately prior to the issuance
of such options, rights or convertible securities (excluding authorized
but unissued shares held by the Corporation but including all shares of
Common Stock issuable upon conversion or exercise of any outstanding
Convertible Preferred Stock, options, warrants, rights or convertible
securities), plus (Y) the number of shares of Company's Common Stock which
the total amount of consideration received by the Company for the issuance
of such options, warrants, rights or convertible securities plus the
minimum amount set forth in the terms of such security as payable to the
Company upon the exercise or conversion thereof (the "Net Aggregate
Consideration") would purchase at the Conversion Price prior to
adjustment, and
b. the denominator of which shall be (X) the number of shares of Company's
Common Stock of all classes outstanding immediately prior to the issuance
of such options, warrants, rights or convertible securities (excluding
authorized but unissued shares held by the Company but including all
shares of Common Stock issuable upon conversion or exercise of any
outstanding Convertible Preferred Stock, options, warrants, rights or
convertible securities), plus (Y) the aggregate number of shares of
Company's Common Stock that would be issued if all such options, warrants,
rights or convertible securities were exercised or converted.
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When delivered, all Shares shall be duly authorized, validly issued, fully
paid, and nonassessable. Maker shall take any and all action necessary to
maintain the required authority to issue the Shares to Payee in the event Payee
converts, or is required to convert, the unpaid principal balance of this
Promissory Note into Shares.
Prepayment of the principal of this Promissory Note is permitted, in whole
or in part, without premium or penalty of any kind; provided Maker provides
Payee with forty-five (45) days' prior written notice of its intention to prepay
the principal of this Promissory Note, in whole or in part, during which time
Payee may exercise the Option by delivering to the Maker Payee's Notice of
Conversion within forty-five (45) days following Payee's receipt of such notice
from the Maker. All partial prepayments of principal shall reduce the principal
balance hereunder in reverse order of maturity.
This Promissory Note is given in consideration of a loan by Payee to Maker
in the principal amount of this Promissory Note. This Promissory Note may not be
changed orally, but only by an agreement in writing signed by the parties
against whom enforcement of any waiver, change, modification, or discharge is
sought.
This Promissory Note and the payment due hereunder are secured by the
following documents executed simultaneously herewith: (a) a Security Agreement;
(b) a Stock Pledge and Security Agreement; (c) Limited Partnership Interest
Pledge and Security Agreement; (d) a Reassignment Agreement; and (e) any and all
other Security Documents as defined in the Agreement executed by the Maker in
favor of the Payee pursuant to the Agreement.
The holder of this Promissory Note and all successors thereof shall have
all of the rights of a holder in due course under the Uniform Commercial Code as
in effect in the State of Michigan and the other laws of the State of Michigan.
Maker hereby waives demand, presentment, protest, notice of protest and/or
dishonor, and all other notices or requirements that might otherwise be required
by law. The Maker promises to pay on demand all costs of collection, including
reasonable attorneys' fees and court costs, paid or incurred by Payee to enforce
this Promissory Note upon an Event of Default (as defined below) hereunder.
The occurrence of any of the following shall constitute an "Event of
Default" (or, if the giving of notice or the lapse of time or both is required,
then, prior to such notice or lapse of time, a "Default"):
a. the Maker shall fail to pay any principal of or interest on this
Promissory Note when the same shall become due and payable, whether at the
stated date of maturity or any accelerated date of maturity or at any
other date fixed for payment; provided however, such failure shall not
constitute a default if the required payment is made within five days
after the date it first became due and payable and such failure has not
occurred more than two times in the preceding 12 months; or
b. any Event of Default shall occur in the Subscription and Investment
Representation Agreement for 10% Convertible Secured Promissory Note Due
January 2003 between Maker and Payee of even date herewith after the
passage of any notice and cure period set forth herein;
c. the Company shall make an assignment for the benefit of creditors, or
admit in writing its inability to pay or generally fail to pay its debts
as they mature or become due, or shall petition or apply for the
appointment of a trustee or other custodian, liquidator or receiver of the
Company or of any substantial part of its assets, or shall commence any
case or other proceeding relating to the Company under any bankruptcy,
reorganization, arrangement, insolvency, readjustment of debt, dissolution
or liquidation or similar law of any jurisdiction, now or hereafter in
effect, or shall take any action to authorize or in furtherance of any of
the foregoing, or if any such petition or application shall be filed or
any such case or other proceeding shall be commenced against the Company
and the Company shall indicate its approval thereof, consent thereto or
acquiescence therein or shall fail to contest the same in a timely manner;
d. an involuntary petition shall be filed or an involuntary proceeding
shall be commenced seeking liquidation, reorganization or other relief in
respect of the Company or of its debts or any substantial part
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of its assets, under any bankruptcy, reorganization, arrangement,
insolvency, readjustment of debt, dissolution or liquidation or similar
law of any jurisdiction, now or hereafter in effect, and in any such case,
such proceeding or petition shall continue undismissed for sixty (60) days
or an order or decree approving or ordering any of the foregoing shall be
entered;
then, and in any such event, (A) if such event is an Event of Default specified
in Section (c) or (d) above with respect to the Maker, automatically all amounts
owing with respect to the Agreement, this Promissory Note and the other
documents executed in connection herewith shall become immediately due and
payable without presentment, demand, protest or further notice of any kind, all
of which are hereby expressly waived by the Maker and (B) if such event is any
other Event of Default the Payee shall by notice in writing to the Maker,
declare all amounts owing with respect to the Agreement, this Promissory Note
and the other documents executed in connection herewith to be, and they shall
thereupon forthwith become, immediately due and payable without presentment,
demand, protest or other notice of any kind, all of which are hereby expressly
waived by the Maker.
This Promissory Note, the Agreement and all security and other documents
signed by both parties in connection with the transactions contemplated herein
and therein constitute the parties' entire understanding with respect to the
subject matter hereof and the Agreement and each such security and other
documents is incorporated herein by this reference.
IN WITNESS WHEREOF, the Maker has caused this Promissory Note to be
executed in its corporate name by the signature of its duly authorized officer.
BIG BUCK BREWERY & STEAKHOUSE, INC.
By: /s/ William F. Rolinski
----------------------------------
William F. Rolinski
President and Chief Executive Officer
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Dates Referenced Herein
| Referenced-On Page |
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| This ‘10KSB’ Filing | | Date | | First | | Last | | | Other Filings |
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| |  |
| | 2/1/03 | | 1 | | | | | None on these Dates |
| | 4/1/00 | | 1 |
| Filed on: | | 3/31/00 |
| | 3/1/00 | | 1 |
| | 2/29/00 | | 1 |
| | 2/4/00 | | 1 |
| For Period End: | | 1/2/00 |
| List all Filings |
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