Attached files
| file | filename |
|---|---|
| EX-5.1 - BAETA CORP | v183753_ex5-1.htm |
| EX-4.1 - BAETA CORP | v183753_ex4-1.htm |
| EX-23.1 - BAETA CORP | v183753_ex23-1.htm |
| EX-10.23 - BAETA CORP | v183753_ex10-23.htm |
| EX-10.22 - BAETA CORP | v183753_ex10-22.htm |
| EX-10.12(20) - BAETA CORP | v183753_ex10-1220.htm |
| EX-10.12(19) - BAETA CORP | v183753_ex10-1219.htm |
| S-1/A - BAETA CORP | v183753_s1a.htm |
CONVERTIBLE
PROMISSORY NOTE
April
8, 2010
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$100,000.00
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FOR VALUE RECEIVED, the
undersigned corporation (the “Company”), promises
to pay to Charter Capital
Resources, Inc., a
Delaware limited liability company (the “Lender”) the
principal sum of One Hundred Thousand Dollars and Zero Cents ($100,000.00) and interest at
the annual rate of ten percent (10%) on the unpaid balance pursuant to the
following terms:
1. Principal
and Interest. For value
received, the Company hereby promises to pay to the order of the Lender in
lawful money of the United States of America and in immediately available funds
the principal sum of One Hundred Thousand Dollars and Zero Cents ($100,000.00), together with
interest on the unpaid principal of this note at the rate of ten percent (10%)
per year (computed on the basis of a 365-day year and the actual days elapsed)
from the date of this Promissory Note (the “Note”) until
paid.
2. Principal
and Interest Payments. All principal and
accrued interest shall be due and payable two (2) calendar years from the date
of this Note, in cash; provided, however, in the event that the Company receives
any financing from any other source all proceeds received in connection with any
such financing shall be paid to the Lender until such time that all outstanding
principal and accrued interest has been paid to the Lender. All payment amounts
shall be first applied to interest, if any, and then to the balance to
principal.
3. Right of
Prepayment. Notwithstanding the payments pursuant to Section
2, the Company at its option shall have the right to prepay a portion or all
outstanding principal of the Note. There shall be no prepayment fee
or penalty.
4. Conversion.
(a) At
any time on or prior to the Maturity Date, any amount of the unpaid Principal
Amount (the “Conversion Amount”) may be converted into free-trading
and unrestricted shares of Common Stock of the Company equal to the result of
(i) the Conversion Amount, divided by (ii) the Variable Conversion Price (as
defined below):
(A) The
“Variable Conversion
Price” shall mean the Applicable Percentage (as defined herein)
multiplied by the Market Price (as defined herein); provided,
however, the
Variable
Conversion Price shall not be less than
$0.25 cents per share.. “Market Price” means the
average of the lowest three (3) Trading Prices (as defined below) for the Common
Stock during the five (5) Trading Day period ending one Trading Day prior to the
date the Conversion Notice is sent by the Holder to the Lender via facsimile
(the “Conversion Date”).
“Trading Price” means,
for any security as of any date, the intraday trading price on the Pink Sheets
(the “PINKSHEETS”) as
reported by a reliable reporting service mutually acceptable to and hereafter
designated by Holders of a majority in interest of the Notes and the Lender or,
if the PINKSHEETS is not the principal trading market for such security, the
intraday trading price of such security on the principal securities exchange or
trading market where such security is listed or traded or, if no intraday
trading price of such security is available in any of the foregoing manners, the
average of the intraday trading prices of any market makers for such security
that are listed in the “pink sheets” by the National Quotation Bureau, Inc.
“Applicable Percentage”
shall mean 50%.
(b) In
the event that the Principal Amount on this Note is converted into Common Stock
in accordance with the terms of this Section 3, the Company shall within three
(3) business days of receipt of a Notice of Conversion (attached hereto as Exhibit
A) from the Noteholder, instruct the transfer agent to issue to the
Noteholder a certificate representing the shares of Common Stock into which the
obligations of the Company under this Note have been converted, which
certificate shall be free of any legends restricting the transfer of such
certificate or the shares of Common stock represented thereby, unless otherwise
contemplated. If the Company fails to instruct the transfer agent to
issue a certificate within three (3) business days of receipt of the Notice of
Conversion, the Company shall pay the Noteholder a penalty of $1,000 per day for
each day the instructions are not delivered to the transfer agent.
(c) No
certificates representing fractional shares of Common Stock shall be issued to
Noteholder upon conversion of principal due hereunder into Common Stock, no
dividend or distribution of the Company shall relate to fractional share
interests and such fractional share interests will not entitle the Noteholder to
vote or to any rights as a stockholder of the Company. The Noteholder
shall pay to Company cash in lieu of any fractional shares of Common Stock
resulting from conversion of any principal due hereunder, concurrently with the
issuance to Noteholder of the Common Stock to which such fractional shares
relate.
5. Waiver
and Consent. To the fullest extent permitted by law and except
as otherwise provided herein, the Company waives demand, presentment, protest,
notice of dishonor, suit against or joinder of any other person, and all other
requirements necessary to charge or hold the Company liable with respect to this
Note.
6. Costs,
Indemnities and Expenses. In the event of default as described
herein, the Company agrees to pay all reasonable fees and costs incurred by the
Lender in collecting or securing or attempting to collect or secure this Note,
including reasonable attorneys’ fees and expenses, whether or not involving
litigation, collecting upon any judgments and/or appellate or bankruptcy
proceedings. The Company agrees to pay any documentary stamp taxes,
intangible taxes or other taxes which may now or hereafter apply to this Note or
any payment made in respect of this Note, and the Company agrees to indemnify
and hold the Lender harmless from and against any liability, costs, attorneys’
fees, penalties, interest or expenses relating to any such taxes, as and when
the same may be incurred.
7. Intentionally
Omitted.
8. Event of
Default. An “Event of Default”
shall be deemed to have occurred upon the occurrence of any of the following:
(i) the Company should fail for any reason or for no reason to make any payment
of the principal, interest, costs, indemnities, or expenses pursuant to this
Note within ten (10) days of the date due as prescribed herein; (ii) any
default, whether in whole or in part, in the due observance or performance of
any obligations or other covenants, terms or provisions to be performed by the
Lender under this Note or any other related agreements hereunder between the
Company and the Lender of even date herewith which is not cured by the Company
by any applicable cure period therein, or (iii) the Company
shall: (1) make a general assignment for the benefit of its
creditors; (2) fail to file an S-1 registration statement and have it declared
effective by the SEC on or before February 23, 2011; (3) apply for or
consent to the appointment of a receiver, trustee, assignee, custodian,
sequestrator, liquidator or similar official for itself or any of its assets and
properties; (4) commence a voluntary case for relief as a debtor under the
United States Bankruptcy Code; (5) file with or otherwise submit to any
governmental authority any petition, answer or other document
seeking: (A) reorganization, (B) an arrangement with
creditors or (C) to take advantage of any other present or future
applicable law respecting bankruptcy, reorganization, insolvency, readjustment
of debts, relief of debtors, dissolution or liquidation; (6) file or
otherwise submit any answer or other document admitting or failing to contest
the material allegations of a petition or other document filed or otherwise
submitted against it in any proceeding under any such applicable law, or
(7) be adjudicated a bankrupt or insolvent by a court of competent
jurisdiction. Upon an Event of Default (as defined above), the entire
principal balance and accrued interest outstanding under this Note, and all
other obligations of the Company under this Note, shall be immediately due and
payable without any action on the part of the Lender, interest shall accrue on
the unpaid principal balance at twenty-four percent (24%) per year or the
highest rate permitted by applicable law, if lower, and the Lender shall be
entitled to seek and institute any and all remedies available to
it.
9. Maximum
Interest Rate. In no event shall any agreed to or actual
interest charged, reserved or taken by the Lender as consideration for this Note
exceed the limits imposed by Delaware law. In the event that the
interest provisions of this Note shall result at any time or for any reason in
an effective rate of interest that exceeds the maximum interest rate permitted
by applicable law, then without further agreement or notice the obligation to be
fulfilled shall be automatically reduced to such limit and all sums received by
the Lender in excess of those lawfully collectible as interest shall be applied
against the principal of this Note immediately upon the Lender’s receipt
thereof, with the same force and effect as though the Company had specifically
designated such extra sums to be so applied to principal and the Lender had
agreed to accept such extra payment(s) as a premium-free prepayment or
prepayments.
10. Issuance
of Capital Stock. So long as any portion of this Note is
outstanding, the Company shall not, without the prior written consent of the
Lender, (i) issue or sell shares of common stock or preferred stock without
consideration or for a consideration per share less than the bid price of the
common stock determined immediately prior to its issuance, (ii) issue any
warrant, option, right, contract, call, or other security instrument granting
the holder thereof, the right to acquire common stock without consideration or
for a consideration less than such common stock’s bid price value determined
immediately prior to it’s issuance, (iii) enter into any security instrument
granting the holder a security interest in any and all assets of the Company, or
(iv) file any registration statement on Form S-8.
11. Cancellation
of Note. Upon the repayment by the Company of all of its obligations
hereunder to the Lender, including, without limitation, the principal amount of
this Note, plus accrued but unpaid interest, the indebtedness evidenced hereby
shall be deemed canceled and paid in full. Except as otherwise
required by law or by the provisions of this Note, payments received by the
Lender hereunder shall be applied first against expenses and indemnities, next
against interest accrued on this Note, and next in reduction of the outstanding
principal balance of this Note.
12. Severability. If any provision
of this Note is, for any reason, invalid or unenforceable, the remaining
provisions of this Note will nevertheless be valid and enforceable and will
remain in full force and effect. Any provision of this Note that is
held invalid or unenforceable by a court of competent jurisdiction will be
deemed modified to the extent necessary to make it valid and enforceable and as
so modified will remain in full force and effect.
13. Amendment
and Waiver. This Note may be
amended, or any provision of this Note may be waived, provided that any such
amendment or waiver will be binding on a party hereto only if such amendment or
waiver is set forth in a writing executed by the parties hereto. The
waiver by any such party hereto of a breach of any provision of this Note shall
not operate or be construed as a waiver of any other breach.
14. Successors. Except as
otherwise provided herein, this Note shall bind and inure to the benefit of and
be enforceable by the parties hereto and their permitted successors and
assigns.
15. Assignment. This Note shall
not be directly or indirectly assignable or delegable by the
Company. The Lender may assign this Note as long as such assignment
complies with the Securities Act of 1933, as amended.
16. No Strict
Construction. The language used
in this Note will be deemed to be the language chosen by the parties hereto to
express their mutual intent, and no rule of strict construction will be applied
against any party.
17. Further
Assurances. Each party hereto
will execute all documents and take such other actions as the other party may
reasonably request in order to consummate the transactions provided for herein
and to accomplish the purposes of this Note.
18. Notices,
Consents, etc. Any notices, consents, waivers or other
communications required or permitted to be given under the terms hereof must be
in writing and will be deemed to have been delivered: (i) upon
receipt, when delivered personally; (ii) upon receipt, when sent by facsimile
(provided confirmation of transmission is mechanically or electronically
generated and kept on file by the sending party); or (iii) one (1) trading day
after deposit with a nationally recognized overnight delivery service, in each
case properly addressed to the party to receive the same. The
addresses and facsimile numbers for such communications shall be:
If to
Company: Address
listed on the S-1 filings
If to the
Lender:
Beryl
Zyskind
925
East 24th
Street
Brooklyn,
NY 11210
(347)
992-5513
or at
such other address and/or facsimile number and/or to the attention of such other
person as the recipient party has specified by written notice given to each
other party three (3) trading days prior to the effectiveness of such
change. Written confirmation of receipt (A) given by the recipient of
such notice, consent, waiver or other communication, (B) mechanically or
electronically generated by the sender's facsimile machine containing the time,
date, recipient facsimile number and an image of the first page of such
transmission or (C) provided by a nationally recognized overnight delivery
service, shall be rebuttable evidence of personal service, receipt by facsimile
or receipt from a nationally recognized overnight delivery service in accordance
with clause (i), (ii) or (iii) above, respectively.
19. Remedies,
Other Obligations, Breaches and Injunctive Relief. The Lender’s
remedies provided in this Note shall be cumulative and in addition to all other
remedies available to the Lender under this Note, at law or in equity (including
a decree of specific performance and/or other injunctive relief), no remedy of
the Lender contained herein shall be deemed a waiver of compliance with the
provisions giving rise to such remedy and nothing herein shall limit the
Lender’s right to pursue actual damages for any failure by the Company to comply
with the terms of this Note. No remedy conferred under this Note upon
the Lender is intended to be exclusive of any other remedy available to the
Lender, pursuant to the terms of this Note or otherwise. No single or
partial exercise by the Lender of any right, power or remedy hereunder shall
preclude any other or further exercise thereof. The failure of the
Lender to exercise any right or remedy under this Note or otherwise, or delay in
exercising such right or remedy, shall not operate as a waiver
thereof. Every right and remedy of the Lender under any document
executed in connection with this transaction may be exercised from time to time
and as often as may be deemed expedient by the Lender. The Company
acknowledges that a breach by it of its obligations hereunder will cause
irreparable harm to the Lender and that the remedy at law for any such breach
may be inadequate. The Company therefore agrees that, in the event of
any such breach or threatened breach, the Lender shall be entitled, in addition
to all other available remedies, to an injunction restraining any breach, and
specific performance without the necessity of showing economic loss and without
any bond or other security being required.
20. Governing
Law; Jurisdiction.
THIS NOTE SHALL BE ENFORCED, GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF DELAWARE APPLICABLE TO AGREEMENTS MADE AND TO BE
PERFORMED ENTIRELY WITHIN SUCH STATE, WITHOUT REGARD TO THE PRINCIPLES OF
CONFLICT OF LAWS. THE LENDER HEREBY SUBMITS TO THE EXCLUSIVE
JURISDICTION OF THE UNITED STATES FEDERAL COURTS LOCATED IN NEW YORK, NY WITH
RESPECT TO ANY DISPUTE ARISING UNDER THIS NOTE, THE AGREEMENTS ENTERED INTO IN
CONNECTION HEREWITH OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY. BOTH
PARTIES IRREVOCABLY WAIVE THE DEFENSE OF AN INCONVENIENT FORUM TO THE
MAINTENANCE OF SUCH SUIT OR PROCEEDING. BOTH PARTIES FURTHER AGREE
THAT SERVICE OF PROCESS UPON A PARTY MAILED BY FIRST CLASS MAIL SHALL BE DEEMED
IN EVERY RESPECT EFFECTIVE SERVICE OF PROCESS UPON THE PARTY IN ANY SUCH SUIT OR
PROCEEDING. NOTHING HEREIN SHALL AFFECT EITHER PARTY’S RIGHT TO SERVE
PROCESS IN ANY OTHER MANNER PERMITTED BY LAW. BOTH PARTIES AGREE THAT
A FINAL NON-APPEALABLE JUDGMENT IN ANY SUCH SUIT OR PROCEEDING SHALL BE
CONCLUSIVE AND MAY BE ENFORCED IN OTHER JURISDICTIONS BY SUIT ON SUCH JUDGMENT
OR IN ANY OTHER LAWFUL MANNER. THE PARTY WHICH DOES NOT PREVAIL IN
ANY DISPUTE ARISING UNDER THIS NOTE SHALL BE RESPONSIBLE FOR ALL FEES AND
EXPENSES, INCLUDING ATTORNEYS’ FEES, INCURRED BY THE PREVAILING PARTY IN
CONNECTION WITH SUCH DISPUTE.
21. No
Inconsistent Agreements. None of the
parties hereto will hereafter enter into any agreement, which is inconsistent
with the rights granted to the parties in this Note.
22. Third
Parties. Nothing herein
expressed or implied is intended or shall be construed to confer upon or give to
any person or entity, other than the parties to this Note and their respective
permitted successor and assigns, any rights or remedies under or by reason of
this Note.
23. Waiver of Jury
Trial. AS A MATERIAL INDUCEMENT FOR THE LENDER TO LOAN TO THE
COMPANY THE MONIES HEREUNDER, THE COMPANY HEREBY WAIVES ANY RIGHT TO TRIAL BY
JURY IN ANY LEGAL PROCEEDING RELATED IN ANY WAY TO THIS AGREEMENT AND/OR ANY AND
ALL OF THE OTHER DOCUMENTS ASSOCIATED WITH THIS TRANSACTION.
24. Entire
Agreement. This Note (including any recitals hereto) set forth
the entire understanding of the parties with respect to the subject matter
hereof, and shall not be modified or affected by any offer, proposal, statement
or representation, oral or written, made by or for any party in connection with
the negotiation of the terms hereof, and may be modified only by instruments
signed by all of the parties hereto.
25. Counterparts,
Facsimile Signatures. This Note may be executed in any number
of counterparts, each of which shall be deemed an original and all of which
together shall constitute one and the same instrument. The exchange of copies of
this Note or amendments thereto and of signature pages by facsimile transmission
or by email transmission in portable digital format, or similar format, shall
constitute effective execution and delivery of such instrument(s) as to the
Parties and may be used in lieu of the original Note or amendment for all
purposes. Signatures of the Parties transmitted by facsimile or by email
transmission in portable digital format, or similar format, shall be deemed to
be their original signatures for all purposes.
[REMAINDER
OF PAGE INTENTIONALY LEFT BLANK]
IN WITNESS WHEREOF, this
Promissory Note is executed by the undersigned as of the date
hereof.
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Baeta
Corp.
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/s/
Leonid Pushkantser
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By:
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Mr.
Leonid Pushkantser
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Chief
Executive Officer
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Acknowledged
and Agreed to:
NOTE
HOLDER:
Charter
Capital Resources, Inc.
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/s/ Beryl
Zyskind
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By:
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Beryl
Zyskind
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Member
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EXHIBIT
A
NOTICE OF
HOLDER CONVERSION – $100,000 April 8, 2010 Convertible Note
(To be
Executed by the Registered Holder in order to Convert the Note)
The
undersigned hereby elects to convert the attached $100,000 April 8, 2010
Convertible Note into free
trading shares of common stock (the “Common Stock”), of Baeta
Corp. (the “Company”) according to the conditions hereof, as of the date
written below. No fee will be charged to the holder for any conversion, except
for such transfer taxes, if any.
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Conversion
request:
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Date
to Effect Conversion
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Number
of FREE-trading
shares of Common Stock to be Issued
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Principal
Amount Converted
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Applicable
Conversion Price
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WE
HEREIN CERTIFY that Charter
Capital Resources, Inc. does not and will not own more than ten percent (10%) or more of
the Company’s Common Stock after the above conversion.
Charter
Capital Resources, Inc.
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By:
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Beryl
Zyskind
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Member
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Mailing Address for Stock
Certificate:
Beryl
Zyskind
925
East 24th
Street
Brooklyn,
NY 11210
(347)
992-5513