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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d) OF
THE SECURITIES EXCHANGE ACT OF 1934
Date of Report (Date of earliest event reported) January 27, 1998
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SILVERADO FOODS, INC.
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(Exact name of registrant as specified in its charter)
Oklahoma 1-13260 73-1369218
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(State or other (Commission File (I.R.S. Employer
jurisdiction of Number) Identification No.)
incorporation)
6846 South Canton, Suite 110, Tulsa, Oklahoma 74136
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(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code (918) 496-2400
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Not applicable
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(Former name or former address, if changed since last report)
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Item 7. Financial Statements and Exhibits.
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(a) Financial statements of business acquired.
Not applicable
(b) Pro forma financial information.
Not applicable.
(c) Exhibits.
The following is a list of all exhibits filed as a part of this
Form 8-K.
4.1 Form of Offshore Securities Subscription Agreement
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4.2 Form of 8.0% Convertible Debenture Agreement due December 31,
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1999
Item 9. Sales of Equity Securities Pursuant to Regulation S
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On January 31, 1998, the Company issued its 8.0% Convertible
Debentures due December 31, 1999 (the "Debentures"), in the aggregate
original principal amount of $200,000. The Debentures were issued at
face value in offshore transactions pursuant to Regulation S
promulgated under the Securities Act of 1933, as amended. The
purchasers were accredited investors (as defined in Regulation D
promulgated under the Securities Act of 1933, as amended). In
connection with the sale of the Debentures, the Company paid placement
fees of $24,000 to Select Capital Advisors, Inc., of Miami Florida and
$12,500 to South Beach Financial Corporation. The Company is also
obligated to issue to Select Capital Advisors, Inc. stock purchase
warrants for the purchase of 20,000 shares of the Company's common
stock, par value $0.01 per share ("Common Stock"). The warrants are
exercisable at $0.60 per share.
The Debentures are convertible at any time commencing 45 days after
issuance, into shares of he Company's Common Stock at a conversion
price for each share of Common Stock equal to the lower of (a) 75% of
the closing bid price of the Common Stock for the five trading days
immediately preceding the conversion date as reported by the American
Stock Exchange, or (b) 75% of the closing bid price of the Common Stock
for the five business days immediately preceding the date of
subscription by the holder as reported by the American Stock Exchange
(the "Conversion Price"). Assuming that the market price of the Common
Stock at the time of conversion is not less than the market price at
the time of subscription, based on a conversion price of $0.375 per
share, the Debentures would be convertible into 533,333 shares of
Common Stock. In the event the conversion price is such that it would
result in an issuance of 20% or more of the issued and outstanding
Common Stock of the Company, the Company may redeem a sufficient
portion of the Debentures so that such conversion would result in an
issuance of less than 20% of the Company's issued and outstanding
Common Stock. The Common Stock issuable on the conversion of the
Debentures (if not otherwise tradable without restriction) is subject
to certain registration rights between the Company and the purchasers
of the Debentures.
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The Debentures are due on December 31, 1998, and bear interest at
the rate of 8% per annum. Interest on the Debentures is payable
quarterly in cash or Common Stock at the option of the Company at the
conversion price.
SIGNATURES
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Pursuant to the requirements of the Securities Exchange Act of 1934, the
Registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
SILVERADO FOODS, INC.
By: /s/ Dorvin D. Lively
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Dorvin D. Lively
Vice President and Chief Financial Officer
Date: February 11, 1998
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EXHIBIT INDEX
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Exhibit No. Description of Exhibit
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4.1 Form of Offshore Securities Subscription Agreement
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4.2 Form of 8.0% Convertible Debenture due December 31, 1999
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EXHIBIT 4.1
OFFSHORE SECURITIES SUBSCRIPTION AGREEMENT
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THIS OFFSHORE SECURITIES SUBSCRIPTION AGREEMENT dated as of January 12,
1998 (the "Agreement"), is executed in reliance upon the exemption from
registration afforded by Regulation S ("Regulation S") as promulgated by the
Securities and Exchange Commission ("SEC"), under the Securities Act of 1933, as
amended. Capitalized terms used herein and not defined shall have the meanings
given to them in Regulation S.
This Agreement has been executed by the undersigned "Buyer" in connection
with the private placement of 8% Convertible Debentures of Silverado Foods,
Inc., a corporation organized under the laws of Oklahoma, with its principal
executive offices located at 6846 South Canton, Suite 110, Tulsa, Oklahoma 74136
(hereinafter referred to as "Seller"). Buyer hereby represents and warrants to,
and agrees with Seller:
THE SECURITIES OFFERED HEREBY HAVE NOT BEEN AND WILL NOT BE REGISTERED
UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED, AND THE RULES
AND REGULATIONS PROMULGATED THEREUNDER (THE "1933 ACT"), AND MAY NOT BE
OFFERED OR SOLD WITHIN THE UNITED STATES (AS DEFINED IN REGULATION S OF THE
1933 ACT) OR TO, OR FOR THE ACCOUNT OR BENEFIT OF, U.S. PERSONS (AS DEFINED
IN REGULATION S OF THE 1933 ACT) EXCEPT PURSUANT TO REGISTRATION UNDER OR
AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE 1933 ACT.
1. Agreement To Subscribe; Purchase Price.
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(a) Subscription. The undersigned Buyer hereby subscribes for and
agrees to purchase the Seller's 8% Convertible Debentures substantially in the
form of the Debentures attached as Exhibit A hereto and having an aggregate
original principal amount of U.S. $1,200,000 (singly, a "Debenture," and
collectively, the "Debentures"), at an aggregate purchase price as set forth in
subsection (b) herein.
(b) Payment. The aggregate Purchase Price for the Buyer's portion of
the Debentures shall be Two Hundred Thousand United States Dollars (U.S.
$200,000) (the "Purchase Price"), which shall be payable at each closing
pursuant to paragraph C herein by delivering immediately available funds in
United States Dollars by wire transfer to the designated depository Barry B.
Globerman, Esq., as Escrow Agent ("Escrow Agent") for closing by delivery of
securities versus payment.
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(c) Closing. Subject to the satisfaction of the conditions set forth
in Sections 7 and 8 hereof, the closing of the transactions contemplated by this
Agreement shall occur on or before December 31, 1997, or such earlier or later
date as is mutually agreed to in writing by Buyer and Seller.
2. Buyer Representations and Covenants; Access to Information.
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Offshore Transaction. In connection with the purchase and sale of the
Debentures, Buyer represents and warrants to, and covenants and agrees with
Seller as follows:
(i) Buyer is not a natural person and is not organized under the
laws of any jurisdiction within the United States, was not formed by
a U.S. Person (as defined in Section 902(o) of Regulation S) for the
purpose of investing in Regulation S securities and is not otherwise a
U.S. Person. Buyer is not, and on the closing date will not be, an
affiliate of Seller;
(ii) At the time the buy order was originated, Buyer was
outside the United States and is outside of the United States as of
the date of the execution and delivery of this Agreement;
(iii) No offer to purchase the Debentures or the common stock of
Seller issuable upon conversion of the Debentures (collectively, the
"Securities"), was made by Buyer in the United States;
(iv) Buyer is purchasing the Securities for its own account and
Buyer is qualified to purchase the Securities under the laws of its
jurisdiction of residence, and the offer and sale of the Securities
will not violate the securities or other laws of such jurisdiction;
(v) All offers and sales of any of the Securities by Buyer
prior to the end of the Restricted Period (as hereinafter defined)
shall be made in compliance with any applicable securities laws of any
applicable jurisdiction and in accordance with Rule 903 and 904, as
applicable, of Regulation S or pursuant to registration of securities
under the 1933 Act or pursuant to an exemption from registration. In
any case, none of the Securities have been or will be offered or sold
by Buyer to, or for the account or benefit of, a U.S. Person or within
the United States until after the end of the forty (40) day period
commencing on the later of (x) the date of closing of the offering of
the Securities or (y) the date of the first offer of the Securities to
persons other than distributors (the "Restricted Period"), by Buyer to
Seller and thereafter only pursuant to a Registration Statement or an
applicable exemption therefrom;
(vi) The transactions contemplated by this Agreement (a) have
not been and will not be pre-arranged by Buyer with a purchaser
located in the United States or a
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purchaser which is a U.S. Person, and (b) are not and will not be part
of a plan or scheme by Buyer, to evade the registration provisions of
the 1933 Act;
(vii) Buyer understands that the Securities are not registered
under the 1933 Act and are being offered and sold to it in reliance on
specific exclusions from the registration requirements of Federal and
State securities laws, and that Seller is relying upon the truth and
accuracy of the representations, warranties, agreements,
acknowledgments and understandings of Buyer set forth herein in order
to determine the applicability of such exclusions and the suitability
of Buyer and any purchaser from Buyer to acquire the Securities;
(viii) Buyer shall take all reasonable steps to ensure its
compliance with Regulation S and shall promptly send to each purchaser
who acts as a distributor, dealer or a person receiving a selling
concession, fee or other remuneration in respect of any of the
Securities, who purchases prior to the expiration of the Restricted
Period referred to in subparagraph (v) above, a confirmation or other
notice to the purchaser stating that the purchaser is subject to the
same restrictions on offers and sales as Buyer pursuant to Section
901(c)(2)(iv) of Regulation S;
(ix) Buyer has not conducted and shall not conduct any
"directed selling efforts" as that term is defined in Rule 902(b) of
Regulation S; nor has Buyer conducted any general solicitation
relating to the offer and sale of any of the Securities in the United
States or elsewhere;
(x) This Agreement has been duly authorized, validly executed
and delivered on behalf of Buyer and is a valid and binding agreement
in accordance with its terms, subject to general principles of equity
and to bankruptcy or other laws affecting the enforcement of
creditors' rights generally;
(xi) The execution and delivery of this Agreement and the
consummation of the purchase of the Securities, and the transactions
contemplated by this Agreement do not and will not conflict with or
result in a breach by Buyer of any of the terms of provisions of, or
constitute a default under, the articles of incorporation or by-laws
(or similar constitutive documents) of Buyer or any indenture,
mortgage, deed of trust, or other material agreement or instrument to
which Buyer is a party or by which it or any of its properties or
assets are bound, or any existing applicable law, rule or regulation
of the United States or any State thereof or any applicable decree,
judgment or order of any Federal or State court, Federal or State
regulatory body, administrative agency or other United States
governmental body having jurisdiction over Buyer or any of its
properties or assets;
(xii) All invitation, offers and sales of or in respect of any of
the Securities, by Buyer and any distribution by Buyer of any
documents relating to any offer by it of
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any of the Securities will be in compliance with applicable laws and
regulations and will be made in such a manner that no prospectus need
be filed and no other filing need be made by Seller with any
regulatory authority or stock exchange in any country or any political
sub-division of any country;
(xiii) Buyer will not make any offer or sale of the Securities
by any means which would not comply with the laws and regulations of
the territory in which such offer or sale takes place or to which such
offer or sale is subject or which would in connection with any such
offer or sale impose upon Seller any obligation to satisfy any public
filing or registration requirement or provide or publish any
information of any kind whatsoever or otherwise undertake or become
obligated to do any act;
(xiv) Neither the Buyer nor any of its affiliates has entered,
has the intention of entering, or will during the Restricted Period
enter into any put option, short position or other similar instrument
or position with respect to any of the Securities or securities of the
same class as the Securities;
(xv) Buyer (or others for whom it is contracting hereunder)
has been advised to consult its own legal and tax advisors with
respect to applicable resale restrictions and applicable tax
considerations and it (or others for whom it is contracting hereunder)
is solely responsible (and the Company is not in any way responsible)
for compliance with applicable resale restrictions and applicable tax
legislation;
(xvi) Buyer understands that no Federal or State or foreign
government agency has passed on or made any recommendation or
endorsement of the Securities;
(xvii) Buyer acknowledges that it and its advisors, if any,
have been furnished with all materials relating to the business,
finances and operations of Seller and all materials relating to the
offer and sale of the Securities which have been requested by Buyer,
all of which contain a legend as required under Section 10 hereof.
Buyer further acknowledges that it and its advisors, if any, have
received complete and satisfactory answers to such inquiries;
(xviii) Buyer acknowledges that the purchase of the Securities
involves a high degree of risk, including the total loss of Buyer's
investment. Buyer is an accredited investor as defined in Regulation
D promulgated under the Securities Act of 1933. Buyer has such
knowledge and experience in financial and business matters that it is
capable of evaluating the merits and risks of purchasing the
Securities;
(xix) Buyer is not a "10-percent Shareholder" (as defined in
Section 871(h)(3)(B) of the U.S. Internal Revenue Code of 1986, as
amended) of Seller.
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(xx) Buyer is acquiring the securities for investment purposes
only, for its own account, and not with a view to, or for sale in
connection with, a distribution.
3. Seller Representations and Covenants.
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(a) Reporting Company Status. Seller is a "Reporting Issuer" as
defined by Rule 902 of Regulation S. Seller has registered its Common Stock,
$0.01 par value per share (the "Common Stock"), pursuant to Section 12 of the
Securities Exchange Act pf 1934, as amended (the"Exchange Act"), and the Common
Stock is listed and trades on the American Stock Exchange ("AMEX"). Seller has
filed all material required to be filed pursuant to all reporting obligations
under either Section 13(a) or 15(d) of the Exchange Act for a period of at least
twelve (12) months immediately preceding the offer or sale of the Securities (or
for such shorter period that Seller has been required to file such material).
(b) Current Public Information. Seller has furnished Buyer with
copies of its most recent reports, as amended, filed under the Exchange Act, and
other publicly available documents requested by Buyer.
(c) Offshore Transaction. Seller has not offered any of the
Securities to any person in the United States, any identifiable groups of U.S.
citizens abroad, or to any U.S. Person, as such terms are used in Regulation S.
(i) At the time the buy order was originated, Seller and/or
its agents reasonably believe the Buyer was outside of the United
States and was not a U.S. Person, based on the representations of
Buyer.
(ii) Seller and/or its agents reasonably believe that the
transaction has not been pre-arranged with a buyer in the United
States, based on the representations of Buyer.
(iii) No offer to buy or sell the Securities was or will be
made by Seller to any person in the United States.
(iv) The sale of the Securities by Seller pursuant to this
Agreement will be made in accordance with the provisions and
requirements of Regulation S provided that the representations and
warranties of Buyer in Section 2 hereof are true and correct.
(v) The transactions contemplated by this Agreement (a) have
not been and will not be pre-arranged by Seller with a purchaser
located in the United States or a purchaser which is a U.S. Person,
and (b) are not and will not be part of a plan or scheme by Seller to
evade the registration provisions of the 1933 Act.
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(d) No Directed Selling Efforts. In regard to this transaction,
Seller has not conducted any "directed selling efforts" as that term is defined
in Rule 902 of Regulation S nor has Seller conducted any general solicitation
relating to the offer and sale of any of the Securities in the United States or
elsewhere.
(e) Concerning the Securities. The issuance, sale and delivery of the
Debentures have been duly authorized by all required corporate action on the
part of Seller, and when issued, sold and delivered in accordance with the terms
hereof and thereof for the consideration expressed herein and therein, will be
duly and validly issued, fully paid and non-assessable. The Common Stock
issuable upon conversion of the Debenture has been duly and validly reserved for
issuance and, upon issuance in accordance with the terms of the Debentures,
shall be duly and validly issued, fully paid, and non-assessable and will not
subject the holders thereof, if such persons are non-U.S. persons, to personal
liability by reason of being such holders. There are no pre-emptive rights of
any shareholder of Seller.
(f) Subscription Agreement. This Agreement has been duly authorized,
validly executed and delivered on behalf of Seller and is a valid and binding
agreement in accordance with its terms, subject to general principles of equity
and to bankruptcy or other laws affecting the enforcement of creditors' rights
generally.
(g) Non-contravention. The execution and delivery of this Agreement
and the consummation of the issuance of the Securities and the transactions
contemplated by this Agreement do not and will not conflict with or result in a
breach by Seller of any of the terms or provisions of, or constitute a default
under, the articles of incorporation or by-laws of Seller, or any indenture,
mortgage, deed of trust, or other material agreement or instrument to which
Seller is a party or by which it or any of its properties or assets are bound,
or any existing applicable law, rule or regulation of the United States or any
State thereof or any applicable decree, judgment or order of any Federal or
State court, Federal or State regulatory body, administrative agency or other
United States governmental body having jurisdiction over Seller or any of its
properties or assets.
(h) Approvals. Seller is not aware of any authorization, approval or
consent of any governmental body which is legally required for the issuance and
sale of the Debentures and the Common Stock issuable upon conversion thereof to
persons who are non-U.S. Persons, as contemplated by this Agreement.
4. Exemption; Reliance on Representations. Buyer understands that the
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offer and sale of the Securities are not being registered under the 1933 Act.
Seller and Buyer are relying on the rules governing offers and sales made
outside the United States pursuant to Regulation S.
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5. Transfer Agent Instructions.
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(a) Debentures. Upon the conversion of the Debentures, the holder
thereof shall submit such Debenture together with a notice of conversion to the
Seller and the Seller shall instruct its transfer agent to issue one or more
Certificates representing that number of shares of Common Stock into which the
Debenture or Debentures are convertible in accordance with the provisions
regarding conversion set forth in Exhibit A hereto. The Seller shall act as
Debenture Registrar and shall maintain an appropriate ledger containing the
necessary information with respect to each Debenture.
(b) Common Stock to be Issued Without Restrictive Legend. Upon the
conversion of any Debenture by a person who is a non-U.S. Person, Seller shall
instruct Seller's transfer agent to issue Stock Certificates without restrictive
legend in the name of Buyer (or its nominee (being a non-U.S. Person) or such
non-U.S. Persons as may be designated by Buyer prior to the closing) and in such
denominations to be specified at conversion representing the number of shares of
Common Stock issuable upon such conversion, as applicable. Seller warrants that
no instructions other than these instructions and instructions to impose a "stop
transfer" instruction with respect to the certificates until the end of the
respective Restricted Period have been given or will be given to the transfer
agent and that the Common Stock shall otherwise be freely transferable on the
books and records of Seller. Nothing in this Section 5, however, shall affect
in any way Buyer's or such nominee's obligations and agreements to comply with
all applicable securities laws upon resale of the Securities.
(c) It shall be the Seller's responsibility to take all necessary
actions and to bear all such costs to issue the Certificate of Common Stock as
provided herein, including the responsibility and cost for delivery of an
opinion letter to the transfer agent and/or Escrow Agent, if so required,
provided Buyer provides such certificates and information as may be reasonably
required to support that opinion. The person in whose name the certificate of
Common Stock is to be registered shall be treated as a shareholder of record on
and after the conversion date. The Seller shall only be required to convert the
debenture in minimum amounts of $25,000. Upon surrender of any Debentures that
are to be converted in part, the Company shall issue to the Purchaser a new
Debenture equal to the unconverted amount, if so requested by Purchaser.
6. Registration. If upon conversion of the Debentures effected by the
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Buyer pursuant to the terms of this Agreement the Company fails to issue
certificates for shares of Common Stock issuable upon such conversion (the
"Underlying Shares") or the Interest Shares to the Buyer bearing no restrictive
legend for any reason other than the Company's reasonable good faith belief that
the representations and warranties made by the Buyer in this Agreement or the
Notice of Conversion were untrue when made, or if the restricted period under
Regulation S is extended, then the Company shall be required, at the request of
the Buyer and at the Company's expense, to effect the registration of the
Underlying Shares issuable upon conversion of the Debentures and payment of
interest under the Act and relevant Blue Sky laws as promptly as is practicable.
The Company and the Buyer shall cooperate in good faith in connection with the
furnishing of information required for such registration and the taking of such
other actions as may be legally or commercially necessary in order to effect
such
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registration. The Company shall file a registration statement within 30 days of
Buyer's demand therefor and shall use its best efforts to cause such
registration statement to become effective as soon as practicable thereafter and
in any event within 60 days of the date of the initial filing thereof. Such best
efforts shall include, but not be limited to, promptly responding to all
comments received from the staff of the Securities and Exchange Commission,
providing Buyer's counsel with a contemporaneous copy of all written
communications from and to the staff of the Securities and Exchange Commission
with respect to such registration statement and promptly preparing and filing
amendments to such registration statement which are responsive to the comments
received from the staff of the Securities and Exchange Commission. Once declared
effective by the Securities and Exchange Commission, the Company shall cause
such registration statement to remain effective until the earlier of (i) the
sale by the Buyer of all Underlying Shares registered or (ii) 120 days after the
effective date of such registration statement. In the event the Company
undertakes to file a Registration Statement on Form S-3 in connection with the
Common Stock, upon the effectiveness of such Registration, Buyer shall have the
option to sell the Common Stock pursuant thereto. The foregoing shall not in any
way limit Buyer's rights in connection with the Common Stock pursuant to
Regulation S.
7. Delivery Instructions. The Debentures being purchased hereunder shall
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be delivered to the Buyer at such time and place as shall be mutually agreed by
Seller and Buyer.
8. Conditions To Seller's Obligation To Sell. Seller's obligation to
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sell the Debentures is conditioned upon:
(a) The receipt and acceptance by Buyer of this Agreement as evidenced
by execution of this Agreement by Buyer.
(b) Delivery into the closing depository of good funds by Buyer as
payment in full of the purchase price of the Debentures.
9. Conditions To Buyer's Obligation To Purchase. Buyer's obligation to
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purchase the Debentures is conditioned upon:
(a) The receipt and acceptance by Seller of this Agreement as
evidenced by execution of this Agreement by the duly authorized officer of
Seller.
(b) Delivery of the Debentures as described herein.
10. Offering Materials. All offering materials and documents used in
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connection with offers and sales of the Securities prior to the expiration of
the Restricted Period referred to in Section 2(a) hereof shall include
statements to the effect that the Securities have not been registered under the
1933 Act or applicable state securities laws, and that neither Buyer, nor any
direct or indirect purchaser of the Securities from Buyer, may directly or
indirectly offer or sell the Securities in the United States or to U.S. Persons
(other than distributors) unless that Securities are registered under the 1933
Act any applicable state securities laws, or any exemption from the registration
requirements of the 1933 Act
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or such state securities laws is available. Such statements shall appear (1) on
the cover of any prospectus or offering circular used in connection with the
offer or sale of the Securities, (2) in the underwriting section of any
prospectus or offering circular used in connection with the offer or sale of the
Securities, and (3) in any advertisement made or issued by Seller, Buyer, any
other distributor, any of their respective affiliates, or any person acting on
behalf of any of the foregoing.
11. No Shareholder Approval. Seller hereby agrees that from the Closing
-----------------------
Date until the issuance of Common Stock upon the conversion of the Debentures,
Seller will not take any action which would require Seller to seek shareholder
approval of such issuance unless such shareholder approval is required by law or
regulatory body (including but not limited to the American Stock Exchange) as a
result of the issuance of the Securities hereunder.
12. Miscellaneous.
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(a) Except as specifically referenced herein, this Agreement
constitutes the entire contract between the parties, and neither party shall be
liable or bound to the other in any manner by any warranties, representations or
covenants except as specifically set forth herein. Any previous agreement among
the parties related to the transactions described herein is superseded hereby.
The terms and conditions of this Agreement shall inure to the benefit of and be
binding upon the respective successors and assigns of the parties hereto.
Nothing in this Agreement, express or impled, is intended to confer upon any
party, other than the parties hereto, and their respective successors and
assigns, any rights, remedies, obligations or liabilities under or by reason of
this Agreement, except as expressly provided herein.
(b) Buyer is an independent contractor, and is not the agent of
Seller. Buyer is not authorized to bind Seller, or to make any representations
or warranties on behalf of Seller.
(c) Seller makes no representations or warranty with respect to
Seller, its finances, assets, business prospects or otherwise. Buyer will advise
each purchaser, if any, and potential purchaser of the Securities, of the
foregoing sentence, and that such purchaser is relying on its own investigation
with respect to all such matters, and that such purchaser will be given access
to any and all documents and Seller personnel as it may reasonably request for
such investigation.
(d) All representations and warranties contained in this Agreement by
Seller and Buyer shall survive the closing of the transactions contemplated by
this Agreement.
(e) This Agreement shall be construed in accordance with the laws of
Oklahoma and shall be binding upon the successors and assigns of each party
hereto. 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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(f) Buyer agrees to indemnify and hold Seller harmless from any and
all claims, damages and liabilities arising from Buyer's breach of its
representations and/or covenants set forth herein.
IN WITNESS WHEREOF, the undersigned has executed this Agreement as of
the date first set forth above.
Official Signatory of Seller:
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SILVERADO FOODS, INC.
By: /s/ Dorvin D. Lively
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Accepted this 13th day of Title: Vice President and Chief Financial
January, 1998 Officer
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Official Signatory of Buyer:
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Zooley Services Limited
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By: /s/ Philippe David
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Title: Chairman of the Board
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Address of Buyer:
Buzon 147 5 Avenida
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Puerta Del Mar
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Marbella, 29600, Malaga, Spain
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Fax No.: 34 52830328
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Tel No.: 34 23705283
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EXHIBIT 4.2
DEBENTURE
THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE UNITED
STATES SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), AND MAY NOT BE
OFFERED OR SOLD IN THE UNITED STATES (AS DEFINED IN REGULATION S UNDER THE
ACT) OR TO, OR FOR THE ACCOUNT OR BENEFIT OF U.S. PERSONS (AS DEFINED IN
REGULATION S UNDER THE ACT) EXCEPT PURSUANT TO REGISTRATION UNDER THE ACT
OR AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE ACT AND
APPLICABLE STATE SECURITIES LAWS.
No. _______ US $200,000
SILVERADO FOODS, INC.
8% SERIES CONVERTIBLE DEBENTURE DUE DECEMBER 31, 1999
THIS DEBENTURE is one of a duly authorized issue of Debentures of Silverado
Foods, Inc., a corporation duly organized and existing under the laws of the
State of Oklahoma (the "Company") designated as its 8% Convertible Debentures
Due December 31, 1999, in an aggregate principal face amount not exceeding One
Million Two Hundred Thousand Dollars (U.S. $1,200,000).
FOR VALUE RECEIVED, the Company promises to pay to Zooley Services Limited,
the registered holder hereof and its successors and assigns (the "Holder"), the
principal sum of Two Hundred Thousand Dollars (US $200,000) on December 31, 1999
(the "Maturity Date"), and to pay interest on the principal sum outstanding, at
the rate of 8% per annum due and payable quarterly in arrears. Accrual of
interest shall commence on the date hereof and shall continue until payment in
full of the outstanding principal sum has been made or duly provided for. The
interest so payable will be paid to the person in whose name this Debenture (or
one or more predecessor Debentures) is registered on the records of the Company
regarding registration and transfers of the Debentures (the "Debenture
Register"); provided, however, that the Company's obligation to a transferee of
this Debenture arises only if such transfer, sale or other disposition is made
in accordance with the terms and conditions of the Offshore Securities
Subscription Agreement dated as of January 12, 1998 between the Company and
Zooley Services Limited (the "Subscription Agreement"). The principal of, and
interest on (subject to paragraph 4 hereof), this Debenture are payable in such
coin or currency of the United States of America as at the time of payment is
legal tender for payment of public and private debts, at the address last
appearing on the Debenture Register of the Company as designated in writing by
the Holder hereof from time to time. The Company will pay the outstanding
principal of and all accrued and unpaid interest due upon this Debenture on the
Maturity Date, less any amounts required by law to be deducted or withheld, to
the record Holder of this Debenture as of the tenth (10th) day prior to the
Maturity Date and addressed to such record Holder at the last address
appearing on the Debenture Register. The forwarding of such check shall
constitute a payment of outstanding principal and interest hereunder and shall
satisfy and discharge the liability for principal on this Debenture to the
extent of the sum represented by such check or wire transfer plus any amounts so
deducted.
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<PAGE>
This Debenture is subject to the following additional provisions:
1. The Debentures are issuable in denominations of Fifty Thousand Dollars
(US$50,000) and integral multiples thereof. The Debentures are exchangeable for
an equal aggregate principal amount of Debentures of different authorized
denominations, as requested by the Holders surrendering the same but not less
than U.S. $50,000. No service charge will be made for such registration or
transfer or exchange.
2. The Company shall be entitled to withhold from all payments of
principal of, and interest on, this Debenture any amounts required to be
withheld under the applicable provisions of the United States income tax or
other applicable laws at the time of such payments.
3. This Debenture has been issued subject to investment representations
of the original purchaser hereof and may be transferred or exchanged in the U.S.
only in compliance with the Securities Act of 1933, as amended (the "Act") and
applicable state securities laws. Prior to due presentment for transfer of this
Debenture, the Company and any agent of the Company may treat the person in
whose name this Debenture is duly registered on the Company's Debenture Register
as the owner hereof for the purpose of receiving payment as herein provided and
for all other purposes, whether or not this Debenture be overdue, and neither
the Company nor any such agent shall be affected or bound by notice to the
contrary. Any holder of this Debenture, 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), is also required to give the Company (i) written
confirmation that it is not a U.S. Person and the Debenture is not being
converted on behalf of a U.S. Person ("Notice of Conversion") or (ii) an opinion
of U.S. counsel satisfactory to the Company to the effect that the Debenture and
shares of common stock issuable upon conversion thereof have been registered
under the 1933 Act or are exempt from such registration. In the event a Notice
of Conversion or opinion of counsel is not provided the Holder hereof will not
be entitled to exercise the right to convert or transfer the Debentures.
4. (a) The Holder of this Debenture is entitled, at its option, at any
time commencing 45 days after issue hereof to convert any or all of the original
principal amount of this Debenture into shares of common stock, $0.01 par value
per share, of the Company (the "Common Stock"), at a conversion price for each
share of Common Stock equal to the lower of (a) 75% of the closing bid prices of
the Common Stock for the 5 trading days immediately preceding the conversion
date or (b) 75% of the average of the closing bid prices of the Common Stock for
the five (5) business days immediately preceding the date of Subscription by the
Holder as reported by the American Stock Exchange ("AMEX") (the "Conversion
Price"). Such conversion shall be effectuated by surrendering the Debentures to
be converted to the Company with the form of conversion notice attached hereto
as Exhibit I, executed by the Holder of this Debenture evidencing such Holder's
intention to convert this Debenture or a specified portion (as above provided)
hereof, and accompanied by proper assignment hereof in blank. Accrued but unpaid
interest shall be payable in cash or stock at the option of the Company at the
Conversion Price. 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, with the fraction paid in cash at the discretion of
the Company. The date on which notice of conversion is given shall be deemed to
be the date on which
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<PAGE>
the Holder has delivered this Debenture, with the conversion notice duly
executed, to the Escrow Agent or, if earlier, the date set forth in such notice
of conversion if the Debenture is received by the Escrow Agent within five (5)
business days thereafter.
(b) Notwithstanding the provisions of paragraph 4(a) hereof, upon
receipt of the Notice of Conversion, the Company may redeem such part of the
Debentures after issue hereof to the extent that the conversion of such
Debentures by the Holder would result in the issuance of Common Stock of 20% or
more of the issued and outstanding Common Stock by paying to the Holder the
product of (i) the Market Price, and (ii) the higher number of shares of Common
Stock that would be issuable for such Debentures pursuant to the calculations in
paragraph 4(a). Such payment shall include accrued interest to such date, and
shall be less any amounts required by law to be deducted or withheld. Such
payment shall be made by delivering immediately available funds in United States
Dollars by wire transfer to the Holder, or if no wiring instructions have been
provided to the company, by cashier's or certified check to the last address of
Holder appearing on the Debenture Register. The wiring of such funds or the
forwarding of such check shall constitute payment of principal and interest
hereunder and shall satisfy and discharge the liability for principal and
interest on this Debenture to the extent of the sum represented by such wire or
check plus any amount so deducted. Notice of such redemption shall be mailed to
the Holder by the Company within three (3) days of receipt of the Notice of
Conversion by the Company and such payment to be made by the Company within 5
days of receipt of the Notice of Conversion by the Company from the Investor.
5. No provision of this Debenture shall alter or impair the obligation of
the Company, which is absolute and unconditional, to pay the principal of, and
interest on, this Debenture at the time, place, and rate, and in the coin
currency, herein prescribed.
6. The Company hereby expressly waives demand and presentment for
payment, notice of nonpayment, protest, notice of protest, notice of dishonor,
notice of acceleration or intent to accelerate, bringing of suit 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
hereon, regardless of and without any notice, diligence, act or omission as or
with respect to the collection of any amount called for hereunder.
7. Upon an Event of Default (as hereinafter defined), the Company agrees
to pay all costs and expenses, including reasonable attorneys' fees, which may
be incurred by the Holder in collecting any amount due under this Debenture.
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 Debenture and such default shall continue uncured for a
period of seven (7) days after notice from Holder of such
default; or
(b) Any of the representations or warranties made by the Company
herein, in the Subscription Agreement, or in any certificate or
financial or other written statements heretofore or hereafter
furnished by or on behalf of the Company
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<PAGE>
in connection with the execution and delivery of this Debenture
or the Subscription Agreement shall be false or misleading in any
material respect at the time made; or
(c) The Company shall fail to perform or observe, in any material
respect, any other covenant, term, provision, condition,
agreement or obligation of the Company under this Debenture and
such failure shall continue uncured for a period of seven (7)
days after notice from the Holder of such failure; or
(d) The Company shall (1) become insolvent; (2) admit in writing its
liability to pay its debts generally as they mature; (3) make an
assignment for the benefit of creditors or commence proceedings
for its dissolution; or (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; 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 thirty
(30) 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 and shall not be dismissed within thirty
(30) days thereafter; or
(g) Any money judgment, writ or warrant of attachment, or similar
process, in excess of One Hundred Thousand ($100,000) Dollars 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; or
(h) Bankruptcy, reorganization, insolvency or liquidation proceedings
or other proceedings for relief under any bankruptcy law or any
law for the relief of debtors shall be instituted by or against
the Company and, if instituted against the Company, shall not be
dismissed within thirty (30) days after such instruction of the
Company shall by any action or answer approve of, consent to, or
acquiesce in any such proceedings or admit the material
allegations of, or default in answering a petition filed in any
such proceeding; or
(i) The Company shall have its Common Stock delisted from an exchange
or the over-the-counter market.
(j) The Company shall fail to file a listing application with the
AMEX within 14 days of the date of this Debenture.
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<PAGE>
Then, or at any time thereafter, 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
Debenture immediately due and payable, without presentment, demand, protest or
notice of any kinds, 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.
9. This Debenture represents a general unsecured obligation of the
Company. No recourse shall be had for the payment of the principal of, or the
interest on, this Debenture, or for any claim based hereon, or otherwise in
respect hereof, against any incorporator, shareholder, officer or director, as
such, past, present or future, of the Company or of any successor corporation,
whether by virtue of any constitution, statute or rule of law, or by the
enforcement of any assessment or penalty or otherwise, all such liability being,
by the acceptance hereof and as part of the consideration for the issue hereof,
expressly waived and released.
10. The Holder of this Debenture, by acceptance hereof, agrees that this
Debenture is being acquired for investment and that such Holder will not offer,
sell or otherwise dispose of this Debenture or the Shares of Common Stock
issuable upon exercise thereof except under circumstances which will not result
in a violation of the Act or any applicable state Blue Sky law or similar laws
relating to the sale of securities.
11. In case any provision of this Debenture 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 Debenture will not in any way be affected or
impaired thereby.
12. This Debenture and the agreements referred to in this Debenture
constitute the full and entire understanding and agreement between the Company
and the Holder with respect to the subject hereof. Neither this Debenture nor
any term hereof may be amended, waived, discharged or terminated other than by a
written instrument signed by the Company and the Holder.
13. This Debenture shall be governed by and construed in accordance with
the laws of Oklahoma.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed by an officer thereunto duly authorized.
Dated: January 13, 1998
-----------------------
SILVERADO FOODS, INC.
By: /s/ Dorvin D. Lively
-----------------------------------------
Title: Vice President & Chief
Financial Officer
--------------------------------------
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<PAGE>
EXHIBIT I
NOTICE OF CONVERSION
(To be Executed by the Registered Holder in order to Convert the Debenture)
The undersigned hereby irrevocably elects to convert $______________ of the
above Debenture No. ___ into Shares of Common Stock of Silverado Foods, Inc.
(the "Company") according to the conditions set forth in such Debenture, as of
the date written below.
The undersigned represents that it is not a U.S. Person as defined in
Regulation S promulgated under the Securities Act of 1933, as amended, and is
not converting the Debenture on behalf of any U.S. Person and the
representations contained in the Subscription Agreement are true. If Shares are
to be issued in the name of a person other than the undersigned, the undersigned
will pay all transfer taxes 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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* This original Debenture and Notice of Conversion must be received by the
Company by the fifth business date following the Date of Conversion.
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