Attached files
Exhibit 4.5
THIS NOTE AND THE COMMON STOCK ISSUABLE UPON CONVERSION OF THIS
NOTE HAVE NOT BEEN AND WILL NOT BE REGISTERED WITH THE UNITED
STATES SECURITIES AND EXCHANGE COMMISSION OR THE SECURITIES
COMMISSION OF ANY STATE PURSUANT TO AN EXEMPTION FROM
REGISTRATION PROVIDED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED, AND THE RULES AND REGULATIONS PROMULGATED THEREUNDER
(THE "1933 ACT")
US $30,000.00
REPLACEMENT NOTE- ORIGINALLY ISSUED JANUARY 2, 2014
IN THE AMOUNT OF $127,500
TUNGSTEN CORP.
8% CONVERTIBLE REDEEMABLE NOTE
DUE SEPTEMBER 10, 2015
FOR VALUE RECEIVED, Tungsten Corp. (the "Company") promises to pay to the
order of LG CAPITAL FUNDING, LLC and its authorized successors and permitted
assigns ("Holder"), the aggregate principal face amount of Thirty Thousand
Dollars exactly (U.S. $30,000.00) on September 10, 2015 ("Maturity Date") and to
pay interest on the principal amount outstanding hereunder at the rate of 8% per
annum commencing on September 10, 2014. The interest will be paid to the Holder
in whose name this Note is registered on the records of the Company regarding
registration and transfers of this Note. The principal of, and interest on, this
Note are payable at 1218 Union Street, Suite #2, Brooklyn, NY 11225 initially,
and if changed, last appearing on the records of the Company as designated in
writing by the Holder hereof from time to time. The Company will pay each
interest payment and the outstanding principal due upon this Note before or on
the Maturity Date, less any amounts required by law to be deducted or withheld,
to the Holder of this Note by check or wire transfer addressed to such Holder at
the last address appearing on the records of the Company. The forwarding of such
check or wire transfer shall constitute a payment of outstanding principal
hereunder and shall satisfy and discharge the liability for principal on this
Note to the extent of the sum represented by such check or wire transfer.
Interest shall be payable in Common Stock (as defined below) pursuant to
paragraph 4(b) herein.
This Note is subject to the following additional provisions:
1. This Note is exchangeable for an equal aggregate principal amount of
Notes of different authorized denominations, as requested by the Holder
surrendering the same. No service charge will be made for such registration or
transfer or exchange, except that Holder shall pay any tax or other governmental
charges payable in connection therewith.
2. The Company shall be entitled to withhold from all payments any amounts
required to be withheld under applicable laws.
3. This Note may be transferred or exchanged only in compliance with the
Securities Act of 1933, as amended ("Act") and applicable state securities laws.
Any attempted transfer to a non-qualifying party shall be treated by the Company
as void. Prior to due presentment for transfer of this Note, the Company and any
agent of the Company may treat the person in whose name this Note is duly
registered on the Company's records as the owner hereof for all other purposes,
whether or not this Note be overdue, and neither the Company nor any such agent
shall be affected or bound by notice to the contrary. Any Holder of this Note
electing to exercise the right of conversion set forth in Section 4(a) hereof,
in addition to the requirements set forth in Section 4(a), and any prospective
transferee of this Note, also is required to give the Company written
confirmation that this Note is being converted ("Notice of Conversion") in the
form annexed hereto as Exhibit A. The date of receipt (including receipt by
telecopy) of such Notice of Conversion shall be the Conversion Date.
4. (a) The Holder of this Note is entitled, at its option, at any time to
convert all or any amount of the principal face amount of this Note then
outstanding into shares of the Company's common stock (the "Common Stock")
without restrictive legend of any nature, at a price ("Conversion Price") for
each share of Common Stock equal to 65% of the LOWEST TRADING PRICE of the
Common Stock as reported on the National Quotations Bureau OTCQB exchange which
the Company's shares are traded or any exchange upon which the Common Stock may
be traded in the future ("Exchange"), for the TEN prior trading days including
the day upon which a Notice of Conversion is received by the Company (provided
such Notice of Conversion is delivered by fax or other electronic method of
communication to the Company after 4 P.M. Eastern Standard or Daylight Savings
Time if the Holder wishes to include the same day closing price). If the shares
have not been delivered within 3 business days, the Notice of Conversion may be
rescinded. Such conversion shall be effectuated by the Company delivering the
shares of Common Stock to the Holder within 3 business days of receipt by the
Company of the Notice of Conversion. Once the Holder has received such shares of
Common Stock, the Holder shall surrender this Note to the Company, executed by
the Holder evidencing such Holder's intention to convert this Note or a
specified portion hereof, and accompanied by proper assignment hereof in blank.
Accrued, but unpaid interest shall be subject to conversion. No fractional
shares or scrip representing fractions of shares will be issued on conversion,
but the number of shares issuable shall be rounded to the nearest whole share.
IN THE EVENT THE COMPANY EXPERIENCES A DTC "CHILL" ON ITS SHARES, THE CONVERSION
PRICE SHALL BE DECREASED TO 55% INSTEAD OF 65% WHILE THAT "CHILL" IS IN EFFECT.
In no event shall the Holder be allowed to effect a conversion if such
conversion, along with all other shares of Company Common Stock beneficially
owned by the Holder and its affiliates would exceed 9.9% of the outstanding
shares of the Common Stock of the Company.
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(b) Interest on any unpaid principal balance of this Note shall be paid at
the rate of 8% per annum. Interest shall be paid by the Company in cash only.
(c) This Note may not be prepaid.
(d) Upon (i) a transfer of all or substantially all of the assets of the
Company to any person in a single transaction or series of related transactions,
(ii) a reclassification, capital reorganization or other change or exchange of
outstanding shares of the Common Stock, other than a forward or reverse stock
split or stock dividend, or (iii) any consolidation or merger of the Company
with or into another person or entity in which the Company is not the surviving
entity (other than a merger which is effected solely to change the jurisdiction
of incorporation of the Company and results in a reclassification, conversion or
exchange of outstanding shares of Common Stock solely into shares of Common
Stock) (each of items (i), (ii) and (iii) being referred to as a "Sale Event"),
then, in each case, the Company shall, upon request of the Holder, redeem this
Note in cash for 140% of the principal amount, plus accrued but unpaid interest
through the date of redemption, or at the election of the Holder, such Holder
may convert the unpaid principal amount of this Note (together with the amount
of accrued but unpaid interest) into shares of Common Stock immediately prior to
such Sale Event at the Conversion Price.
(e) In case of any Sale Event (not to include a sale of all or
substantially all of the Company's assets) in connection with which this Note is
not redeemed or converted, the Company shall cause effective provision to be
made so that the Holder of this Note shall have the right thereafter, by
converting this Note, to purchase or convert this Note into the kind and number
of shares of stock or other securities or property (including cash) receivable
upon such reclassification, capital reorganization or other change,
consolidation or merger by a holder of the number of shares of Common Stock that
could have been purchased upon exercise of the Note and at the same Conversion
Price, as defined in this Note, immediately prior to such Sale Event. The
foregoing provisions shall similarly apply to successive Sale Events. If the
consideration received by the holders of Common Stock is other than cash, the
value shall be as determined by the Board of Directors of the Company or
successor person or entity acting in good faith.
5. No provision of this Note shall alter or impair the obligation of the
Company, which is absolute and unconditional, to pay the principal of, and
interest on, this Note at the time, place, and rate, and in the form, herein
prescribed.
6. The Company hereby expressly waives demand and presentment for payment,
notice of non-payment, protest, notice of protest, notice of dishonor, notice of
acceleration or intent to accelerate, and diligence in taking any action to
collect amounts called for hereunder and shall be directly and primarily liable
for the payment of all sums owing and to be owing hereto.
7. The Company agrees to pay all costs and expenses, including reasonable
attorneys' fees and expenses, which may be incurred by the Holder in collecting
any amount due under this Note.
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8. If one or more of the following described "Events of Default" shall
occur:
(a) The Company shall default in the payment of principal or interest on
this Note or any other note issued to the Holder by the Company; or
(b) Any of the representations or warranties made by the Company herein or
in any certificate or financial or other written statements heretofore or
hereafter furnished by or on behalf of the Company in connection with the
execution and delivery of this Note, or the Securities Purchase Agreement under
which this note was issued shall be false or misleading in any respect; or
(c) The Company shall fail to perform or observe, in any respect, any
covenant, term, provision, condition, agreement or obligation of the Company
under this Note or any other note issued to the Holder; or
(d) The Company shall (1) become insolvent; (2) admit in writing its
inability to pay its debts generally as they mature; (3) make an assignment for
the benefit of creditors or commence proceedings for its dissolution; (4) apply
for or consent to the appointment of a trustee, liquidator or receiver for its
or for a substantial part of its property or business; (5) file a petition for
bankruptcy relief, consent to the filing of such petition or have filed against
it an involuntary petition for bankruptcy relief, all under federal or state
laws as applicable; or
(e) A trustee, liquidator or receiver shall be appointed for the Company or
for a substantial part of its property or business without its consent and shall
not be discharged within sixty (60) days after such appointment; or
(f) Any governmental agency or any court of competent jurisdiction at the
instance of any governmental agency shall assume custody or control of the whole
or any substantial portion of the properties or assets of the Company; or
(g) Unless previously disclosed in the Company's filings with the
Securities and Exchange Commission, one or more money judgments, writs or
warrants of attachment, or similar process, in excess of fifty thousand dollars
($50,000) in the aggregate, shall be entered or filed against the Company or any
of its properties or other assets and shall remain unpaid, unvacated, unbonded
or unstayed for a period of fifteen (15) days or in any event later than five
(5) days prior to the date of any proposed sale thereunder.
(h) The Company shall have defaulted on or breached any term of any other
note of similar debt instrument into which the Company has entered and failed to
cure such default within the appropriate grace period; or
(i) The Company shall have its Common Stock delisted from an exchange
(including the OTCBB exchange) or, if the Common Stock trades on an exchange,
then trading in the Common Stock shall be suspended for more than 10 consecutive
days;
(j) If a majority of the members of the Board of Directors of the Company
on the date hereof are no longer serving as members of the Board;
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(k) The Company shall not deliver to the Holder the Common Stock pursuant
to paragraph 4 herein without restrictive legend within 3 business days of its
receipt of a Notice of Conversion; or
(l) The Company shall not replenish the reserve set forth in Section 12,
within 3 business days of the request of the Holder; or
(m) The Company shall not be "current" in its filings with the Securities
and Exchange Commission; or
(n) The Company shall lose the "bid" price for its stock in a market
(including the OTCQB marketplace or other exchange).
Then, or at any time thereafter, unless cured, and in each and every such case,
unless such Event of Default shall have been waived in writing by the Holder
(which waiver shall not be deemed to be a waiver of any subsequent default) at
the option of the Holder and in the Holder's sole discretion, the Holder may
consider this Note immediately due and payable, without presentment, demand,
protest or (further) notice of any kind (other than notice of acceleration), all
of which are hereby expressly waived, anything herein or in any note or other
instruments contained to the contrary notwithstanding, and the Holder may
immediately, and without expiration of any period of grace, enforce any and all
of the Holder's rights and remedies provided herein or any other rights or
remedies afforded by law. Upon an Event of Default, interest shall accrue at a
default interest rate of 24% per annum or, if such rate is usurious or not
permitted by current law, then at the highest rate of interest permitted by law.
In the event of a breach of Section 8(k) the penalty shall be $250 per day the
shares are not issued beginning on the 4th day after the conversion notice was
delivered to the Company. This penalty shall increase to $500 per day beginning
on the 10th day. The penalty for a breach of Section 8(n) shall be an increase
of the outstanding principal amounts by 20%. In case of a breach of Section
8(i), the outstanding principal due under this Note shall increase by 50%. If
this Note is not paid at maturity, the outstanding principal due under this Note
shall increase by 10%.
If the Holder shall commence an action or proceeding to enforce any provisions
of this Note, including, without limitation, engaging an attorney, then if the
Holder prevails in such action, the Holder shall be reimbursed by the Company
for its attorneys' fees and other costs and expenses incurred in the
investigation, preparation and prosecution of such action or proceeding.
9. In case any provision of this Note is held by a court of competent
jurisdiction to be excessive in scope or otherwise invalid or unenforceable,
such provision shall be adjusted rather than voided, if possible, so that it is
enforceable to the maximum extent possible, and the validity and enforceability
of the remaining provisions of this Note will not in any way be affected or
impaired thereby.
10. Neither this Note nor any term hereof may be amended, waived,
discharged or terminated other than by a written instrument signed by the
Company and the Holder.
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11. The Company represents that it is not a "shell" issuer and has never
been a "shell" issuer or that if it previously has been a "shell" issuer that at
least 12 months have passed since the Company has reported form 10 type
information indicating it is no longer a "shell issuer. Further. The Company
will instruct its counsel to either (i) write a 144- 3(a) (9) opinion to allow
for salability of the conversion shares or (ii) accept such opinion from
Holder's counsel.
12. The Company shall issue irrevocable transfer agent instructions
reserving 25,174,000 shares of its Common Stock for conversions under this Note
(the "Share Reserve"). The reserve shall be replenished as needed to allow for
conversions of this Note. Upon full conversion of this Note, any shares
remaining in the Share Reserve shall be cancelled. The Company shall pay all
costs associated with issuing and delivering the shares.
13. The Company will give the Holder direct notice of any corporate
actions, including but not limited to name changes, stock splits,
recapitalizations etc. This notice shall be given to the Holder as soon as
possible under law.
14. This Note shall be governed by and construed in accordance with the
laws of New York applicable to contracts made and wholly to be performed within
the State of New York and shall be binding upon the successors and assigns of
each party hereto. The Holder and the Company hereby mutually waive trial by
jury and consent to exclusive jurisdiction and venue in the courts of the State
of New York. This Agreement may be executed in counterparts, and the facsimile
transmission of an executed counterpart to this Agreement shall be effective as
an original.
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IN WITNESS WHEREOF, the Company has caused this Note to be duly executed by
an officer thereunto duly authorized.
Dated: _____________
TUNGSTEN CORP.
By: __________________________________
Title: _______________________________
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EXHIBIT A
NOTICE OF CONVERSION
(To be Executed by the Registered Holder in order to Convert the Note)
The undersigned hereby irrevocably elects to convert $___________ of the
above Note into _________ Shares of Common Stock of Tungsten Corp. ("Shares")
according to the conditions set forth in such Note, as of the date written
below.
If Shares are to be issued in the name of a person other than the
undersigned, the undersigned will pay all transfer and other taxes and charges
payable with respect thereto.
Date of Conversion:
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Applicable Conversion Price:
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Signature:
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[Print Name of Holder and Title of Signer]
Address:
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SSN or EIN:
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Shares are to be registered in the following name:
Name:
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Address:
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Tel:
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Fax:
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SSN or EIN:
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Shares are to be sent or delivered to the following account:
Account Name:
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Address:
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