EXHIBIT 10.8
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The Securities represented by this Convertible Note have not been registered
under the Securities Act of 1933, as amended ("Act"), or applicable state
securities laws ("State Acts") and shall not be sold, hypothecated, donated or
otherwise transferred unless the Borrower shall have received an opinion of
Legal Counsel for the Borrower, or such other evidence as may be satisfactory to
Legal Counsel for the Borrower, to the effect that any such transfer shall not
require registration under the Act and the State Acts.
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TOUCHSTONE RESOURCES USA, INC.
f/k/a The Coffee Exchange, Inc.
12.00% SECURED CONVERTIBLE NOTE
$2,100,000 No: 1
DATE OF ISSUE: MARCH 23, 2004
Touchstone Resources USA, Inc. (a Delaware corporation) (hereinafter
referred to as the "Borrower") is indebted and, for value received, herewith
promises to pay to:
TRIDENT GROWTH FUND, LP
or to its order, (together with any assignee, jointly or severally, the "Holder"
or "Lender") on or before March 23, 2005 (the "Termination Date") (unless this
Convertible Note shall have been sooner called for redemption or presented for
conversion as herein provided), the sum of Two Million One Hundred Thousand
Dollars ($2,100,000) (the "Principal Amount") and to pay interest on the
Principal Amount at the rate of twelve percent (12.00%) per annum as provided
herein. In furtherance thereof, and in consideration of the premises, the
Borrower covenants, promises and agrees as follows:
1. Interest: Interest on the Principal Amount outstanding from time to
time shall accrue at the rate of 12.00% per annum and be payable in cash via
wire transfer in monthly installments commencing April 30, 2004 and subsequent
payments shall be made on the last day of each month thereafter until the
Principal Amount and all accrued and unpaid interest shall have been paid in
full unless the Holder gives the Borrower written notification that it desires
for a particular month's interest payment to be paid in fully paid and
nonassessable shares of common stock, $0.001 par value, of the Borrower (the
"Common Stock"), based on a stock price of $1.00 per share and such price per
share shall be subject to adjustment at the times, and in accordance with the
provisions as set forth in section 4(a). Overdue principal and interest on the
Convertible Note shall, to the extent permitted by applicable law, bear interest
at the rate of 18.00% per annum. All payments of both principal and interest
shall be made at the address of the Holder hereof as it appears in the books and
records of the Borrower, or at such other place as may be designated by the
Holder hereof in writing to Borrower.
2. Maturity: If not sooner redeemed or converted, this Convertible Note
shall mature on March 23, 2005 at which time all then remaining unpaid
principal, interest and any other charges then due under the Loan Agreement
shall be due and payable in full via wire transfer.
3. Optional Redemption: (a) On any interest payment date and after prior
irrevocable notice as provided for below, the outstanding principal amount of
this Convertible Note is redeemable at the option of the Borrower, in whole or
in part, at 100% of par. (b) The Borrower may exercise its right to redeem prior
to Termination Date by giving notice (the "Redemption Notice") thereof to the
Holder as such name appears on the books of the Borrower, which notice shall
specify the terms of redemption (including the place at which the Holder may
obtain payment), the total principal amount to be redeemed (such principal
amount herein called the "Redemption Amount") and the date for redemption (the
"Redemption Date"), which date shall not be less than 90 days nor more than 120
days after the date of the Redemption Notice. On the Redemption Date, the
Borrower shall pay all accrued unpaid interest on the Convertible Note up to and
including the Redemption Date, and shall pay to the Holder a dollar amount equal
to the Redemption Amount. In the case of Convertible Notes called for
redemption, the conversion rights will expire at the close of business on the
Redemption Date.
4. Conversion Right: The Holder of this Convertible Note shall have the
right, at Holder's option, at any time, to convert all, or, in multiples of
$50,000, any part of this Convertible Note into such number of fully paid and
nonassessable shares of Common Stock as shall be provided herein. The holder of
this Convertible Note may exercise the conversion right by giving written notice
(the "Conversion Notice") to the Borrower of the exercise of such right and
stating the name or names in which the stock certificate or stock certificates
for the shares of Common Stock are to be issued and the address to which such
certificates shall be delivered. The Conversion Notice shall be accompanied by
the Convertible Note. The number of shares of Common Stock that shall be
issuable upon conversion of the Convertible Note shall equal the face amount of
the Convertible Note divided by the Conversion Price as defined below and in
effect on the date the Conversion Notice is given; provided, however, that in
the event that this Convertible Note shall have been partially redeemed, shares
of Common Stock shall be issued pro rata, rounded to the nearest whole share.
Conversion shall be deemed to have been effected on the date the Conversion
Notice is received (the "Conversion Date"). Within 10 business days after
receipt of the Conversion Notice, Borrower shall issue and deliver by hand
against a signed receipt therefor or by United States registered mail, return
receipt requested, to the address designated in the Conversion Notice, a stock
certificate or stock certificates of the Borrower representing the number of
shares of Common Stock to which Holder is entitled and a check or cash in
payment of all interest accrued and unpaid on the Convertible Note being
converted up to and including the Conversion Date. The conversion rights will be
governed by the following provisions:
(a) Conversion Price: On the issue date hereof and until such time as an
adjustment shall occur, the Conversion price shall be $1.00 per share; provided,
however, that the Conversion Price shall be subject to adjustment at the times,
and in accordance with the provisions, as follows:
(i) Adjustment for Issuance of Shares at less than the Conversion Price:
If and whenever any Additional Common Stock (as herein defined) shares shall be
issued by the Borrower (the "Stock Issue Date") for a consideration per share
less than the Conversion Price, then in each such case the initial Conversion
Price shall be reduced to a new Conversion Price in an amount equal to the
consideration per share received by the Borrower for the additional shares of
Common Stock then issued and the number of shares issuable to Holder upon
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conversion shall be proportionately increased; and, in the case of shares issued
without consideration, the initial Conversion Price shall be reduced in amount
and the number of shares issued upon conversion shall be increased in an amount
so as to maintain for the Holder the right to convert the Convertible Note into
shares equal in amount to the same percentage interest in the Common Stock of
the Borrower as existed for the Holder immediately preceding the Stock Issue
Date.
(ii) Sale of Shares: In case of the issuance of Additional Common Stock for a
consideration part or all of which shall be cash, the amount of the cash
consideration therefor shall be deemed to be the amount of the cash received by
Borrower for such shares, after any compensation or discount in the sale,
underwriting or purchase thereof by underwriters or dealers or others performing
similar services or for any expenses incurred in connection therewith. In case
of the issuance of any shares of Additional Common Stock for a consideration
part or all of which shall be other than cash, the amount of the consideration
therefor, other than cash, shall be deemed to be the then fair market value of
the property received as determined by an investment banking firm selected by
Lender.
(iii) Reclassification of Shares: In case of the reclassification of
securities into shares of Common Stock, the shares of Common Stock issued in
such reclassification shall be deemed to have been issued for a consideration
other than cash. Shares of Additional Common Stock issued by way of dividend or
other distribution on any class of stock of the Borrower shall be deemed to have
been issued without consideration.
(iv) Split up or Combination of Shares: In case issued and outstanding
shares of Common Stock shall be subdivided or split up into a greater number of
shares of the Common Stock, the Conversion Price shall be proportionately
decreased, and in case issued and outstanding shares of Common Stock shall be
combined into a smaller number of shares of Common Stock, the Conversion Price
shall be proportionately increased, such increase or decrease, as the case may
be, becoming effective at the time of record of the split-up or combination, as
the case may be.
(v) Exceptions: The term "Additional Common Stock" herein shall mean in
the most broadest sense all shares of Common Stock hereafter issued by the
Borrower (including, but not limited to Common Stock held in the treasury of the
Borrower and common stock purchasable via derivative security or option on the
date of such grant ), except Common Stock issued upon the conversion of any of
this Convertible Note or Warrant.
(b) Adjustment for Mergers, Consolidations, Etc.:
(i) In the event of distribution to all Common Stock holders of any stock,
indebtedness of the Borrower or assets (excluding cash dividends or
distributions from retained earnings) or other rights to purchase securities or
assets, then, after such event, the Convertible Notes will be convertible into
the kind and amount of securities, cash and other property which the holder of
the Convertible Notes would have been entitled to receive if the holder owned
the Common Stock issuable upon conversion of the Convertible Notes immediately
prior to the occurrence of such event.
(ii) In case of any capital reorganization, reclassification of the stock
of the Borrower (other than a change in par value or as a result of a stock
dividend, subdivision, split up or combination of shares), this Convertible Note
shall be convertible into the kind and number of shares of stock or other
securities or property of the Borrower to which the holder of the Convertible
Note would have been entitled to receive if the holder owned the Common Stock
issuable upon conversion of the Convertible Note immediately prior to the
occurrence of such event. The provisions of these foregoing sentence shall
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similarly apply to successive reorganizations, reclassifications,
consolidations, exchanges, leases, transfers or other dispositions or other
share exchanges.
(iii) Notice of Adjustment. (A) In the event the Borrower shall propose to
take any action which shall result in an adjustment in the Conversion Price, the
Borrower shall give notice to the holder of this Convertible Note, which notice
shall specify the record date, if any, with respect to such action and the date
on which such action is to take place. Such notice shall be given on or before
the earlier of 10 days before the record date or the date which such action
shall be taken. Such notice shall also set forth all facts (to the extent known)
material to the effect of such action on the Conversion Price and the number,
kind or class of shares or other securities or property which shall be
deliverable or purchasable upon the occurrence of such action or deliverable
upon conversion of this Convertible Note. (B) Following completion of an event
wherein the Conversion Price shall be adjusted, the Borrower shall furnish to
the holder of this Convertible Note a statement, signed by an authorized officer
of the Borrower of the facts creating such adjustment and specifying the
resultant adjusted Conversion Price then in effect.
5. Reservation of Shares: As of June 30, 3004, the Borrower warrants and
agrees that it shall at all times reserve and keep available, free from
preemptive rights, sufficient authorized and unissued shares of Common Stock to
effect conversion of this Convertible Note.
6. Registration Rights: The Holder has certain rights with respect to the
registration of shares of Common Stock issued upon the conversion of this
Convertible Note pursuant to the terms of the Loan Agreement. Borrower agrees
that a copy of the Loan Agreement with all amendments, additions or
substitutions therefor shall be available to the Holder at the offices of the
Borrower.
7. Taxes: The Borrower shall pay any documentary or other transactional
taxes attributable to the issuance or delivery of this Convertible Note or the
shares of Common Stock issued upon conversion by the Holder (excluding any
federal, state or local income taxes and any franchise taxes or taxes imposed
upon the Holder by the jurisdiction, or any political subdivision thereof, under
which such Holder is organized or is qualified to do business.)
8. Default:
(a) Event of Default: An "Event of Default" shall exist if any one or more
of the following events (herein collectively called "Events of Default") shall
occur and be continuing:
(i) Borrower shall fail to pay (or shall state in writing an intention not
to pay or its inability to pay), not later than 10 days after the due date, any
installment of interest on or principal of, any Convertible Note or any fee,
expense or other payment required hereunder;
(ii) Any of events stated in Section 7 of the Loan Agreement.
(b) Remedies Upon Event of Default: If an Event of Default shall have
occurred and be continuing, then Lender may exercise any one or more of the
following rights and remedies, and any other remedies provided in any of the
Loan Documents, as Lender in its sole discretion, may deem necessary or
appropriate:
(i) declare the unpaid Principal Amount (after application of any payments
or installments received by Lender) of, and all interest then accrued but unpaid
on, the Convertible Notes and any other liabilities hereunder to be forthwith
due and payable, whereupon the same shall forthwith become due and payable
without presentment, demand, protest, notice of default, notice of acceleration
or of intention to accelerate or other notice of any kind, all of which Borrower
hereby expressly waives.
(ii) reduce any claim to judgment, and/or
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(iii) without notice of default or demand, pursue and enforce any of
Lender's rights and remedies under the Loan Documents, or otherwise provided
under or pursuant to any applicable law or agreement, all of which rights may be
specifically enforced.
(c) Remedies Nonexclusive: Each right, power or remedy of the holder
hereof upon the occurrence of any Event of Default as provided for in this
Convertible Note or now or hereafter existing at law or in equity or by statute
shall be cumulative and concurrent and shall be in addition to every other
right, power or remedy provided for in this Convertible Note or now or hereafter
existing at law or in equity or by statute, and the exercise or beginning of the
exercise by the holder or transferee hereof of any one or more of such rights,
powers or remedies shall not preclude the simultaneous or later exercise by the
holder of any or all such other rights, powers or remedies.
(d) Expenses: Upon the occurrence of a Default or an Event of Default,
which occurrence is not cured within the notice provisions, if any provided
therefore, Borrower agrees to pay and shall pay all costs and expenses
(including Lenders attorney's fees and expenses) reasonably incurred by Lender
in connection with the preservation and enforcement of Lender's rights under the
Loan Agreement, the Convertible Notes, or any other Loan Document.
9. Failure to Act and Waiver: No failure or delay by the holder hereof to
require the performance of any term or terms of this Convertible Note or not to
exercise any right, or any remedy shall constitute a waiver of any such term or
of any right or of any default, nor shall such delay or failure preclude the
holder hereof from exercising any such right, power or remedy at any later time
or times. By accepting payment after the due date of any amount payable under
this Convertible Note, the holder hereof shall not be deemed to waive the right
either to require payment when due of all other amounts payable, or to later
declare a default for failure to effect such payment of any such other amount.
The failure of the holder of this Convertible Note to give notice of any failure
or breach of the Borrower under this Convertible Note shall not constitute a
waiver of any right or remedy in respect of such continuing failure or breach or
any subsequent failure or breach.
10. Consent to Jurisdiction: The Borrower hereby agrees and consents that
any action, suit or proceeding arising out of this Convertible Note may be
brought in any appropriate court in the State of Texas including the United
States District Court for the Northern District of Texas, or in any other court
having jurisdiction over the subject matter, all at the sole election of the
holder hereof, and by the issuance and execution of this Convertible Note the
Borrower irrevocably consents to the jurisdiction of each such court.
11. Holders Right to Request Multiple Convertible Notes: The Holder shall,
upon written request and presentation of the Convertible Note, have the right,
at any interest payment date, to request division of this Convertible Note into
two or more units, each of such to be in such amounts as shall be requested;
provided however that no Convertible Notes shall be issued in denominations of
face amount less than $50,000.00.
12. Transfer: This Convertible Note may be transferred on the books of the
Borrower by the registered Holder hereof, or by Holder's attorney duly
authorized in writing, only upon (i) delivery to the Borrower of a duly executed
assignment of the Convertible Note, or part thereof, to the proposed new Holder,
along with a current notation of the amount of payments received and net
Principal Amount yet unfunded, and presentment of such Convertible Note to the
Borrower for issue of a replacement Convertible Note, or Convertible Notes, in
the name of the new Holder, (ii) the designation by the new Holder of the
Lender's agent for notice, such agent to be the sole party to whom Borrower
shall be required to provide notice when notice to Lender is required hereunder
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and who shall be the sole party authorized to represent Lender in regard to
modification or waivers under the Convertible Note, the Loan Agreement, or other
Loan Documents; and any action, consent or waiver, (other than a compromise of
principal and interest), when given or taken by Lender's agent for notice, shall
be deemed to be the action of the holders of a majority in amount of the
Principal Amount of the Convertible Notes, as such holders are recorded on the
books of the Borrower, and (iii) in compliance with the legend to read "The
Securities represented by this Convertible Note have not been registered under
the Securities Act of 1933, as amended ("Act"), or applicable state securities
laws ("State Acts") and shall not be sold, hypothecated, donated or otherwise
transferred unless the Borrower shall have received an opinion of Legal Counsel
for the Borrower, or such other evidence as may be satisfactory to Legal Counsel
for the Borrower, to the effect that any such transfer shall not require
registration under the Act and the State Acts."
The Borrower shall be entitled to treat any holder of record of the
Convertible Note as the Holder in fact thereof and of the Convertible Note and
shall not be bound to recognize any equitable or other claim to or interest in
this Convertible Note in the name of any other person, whether or not it shall
have express or other notice thereof, save as expressly provided by the laws of
Texas.
13. Notices: All notices and communications under this Convertible Note
shall be in writing and shall be either delivered in person or by overnight
delivery and accompanied by a signed receipt therefor; or mailed first-class
United States certified mail, return receipt requested, postage prepaid, and
addressed as follows: (i) if to the Borrower at its address for notice as stated
in the Loan Agreement; and, (ii) if to the holder of this Convertible Note, to
the address (a) of such holder as it appears on the books of the Borrower, or
(b) in the case of a partial assignment to one or more holders, to the Lender's
agent for notice, as the case may be. Any notice of communication shall be
deemed given and received as of the date of such delivery if delivered; or if
mailed, then three days after the date of mailing.
14. Maximum Interest Rate: Regardless of any provision contained in this
Convertible Note, Lender shall never be entitled to receive, collect or apply as
interest on the Convertible Note any amount in excess of interest calculated at
the Maximum Rate, and, in the event that Lender ever receives, collects or
applies as interest any such excess, the amount which would be excessive
interest shall be deemed to be a partial prepayment of principal and treated
hereunder as such; and, if the principal amount of the Convertible Note is paid
in full, any remaining excess shall forthwith be paid to Borrower. In
determining whether or not the interest paid or payable under any specific
contingency exceeds interest calculated at the Maximum Rate, Borrower and Lender
shall, to the maximum extent permitted under applicable law, (i) characterize
any non principal payment as an expense, fee or premium rather than as interest;
(ii) exclude voluntary prepayments and the effects thereof, and (iii) amortize,
pro rate, allocate and spread, in equal parts, the total amount of interest
throughout the entire contemplated term of the Convertible Note; provided that,
if the Convertible Note is paid and performed in full prior to the end of the
full contemplated term thereof, and if the interest received for the actual
period of existence thereof exceeds interest calculated at the Maximum Rate,
Lender shall refund to Borrower the amount of such excess or credit the amount
of such excess against the principal amount of the Convertible Note and, in such
event, Lender shall not be subject to any penalties provided by any laws for
contracting for, charging, taking, reserving or receiving interest in excess of
interest calculated at the Maximum Rate.
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(b) "Maximum Rate" shall mean, on any day, the lesser of (i) 18% or (ii)
the highest nonusurious rate of interest (if any) permitted by applicable law on
such day that at any time, or from time to time, may be contracted for, taken,
reserved, charged or received on the Indebtedness evidenced by the Convertible
Note under the laws which are presently in effect of the United States of
America and the State of Texas or by the laws of any other jurisdiction which
are or may be applicable to the holders of the Convertible Note and such
Indebtedness or, to the extent permitted by law, under such applicable laws of
the United States of America and the State of Texas or by the laws of any other
jurisdiction which are or may be applicable to the holder of the Convertible
Note and which may hereafter be in effect and which allow a higher maximum
nonusurious interest rate than applicable laws now allow.
15. Rights under Loan Agreement: This Convertible Note is issued pursuant
to that certain Loan Agreement dated March 23, 2004 by and between the Lender
and Borrower (the "Loan Agreement"), and the holder hereof is entitled to all
the rights and benefits, and is subject to all the obligations of Lender under
said agreement. Both Borrower and Lenders have participated in the negotiation
and preparation of the Loan Agreement and of this Convertible Note. Borrower
agrees that a copy of the Loan Agreement with all amendments, additions and
substitutions therefore shall be available to the Holder at the offices of the
Borrower. This Convertible Note is secured pursuant to various security
agreements dated March 23, 2004
16. GOVERNING LAW: THIS CONVERTIBLE NOTE SHALL BE GOVERNED BY AND
CONSTRUED AND ENFORCED IN ACCORDANCE WITH THE LAWS OF THE STATE OF TEXAS, OR,
WHERE APPLICABLE, THE LAWS OF THE UNITED STATES OR EXCEPT TO THE EXTENT THAT THE
GENERAL CORPORATION LAW OF THE STATE OF DELAWARE GOVERNS THE CORPORATE
GOVERNANCE OF THE COMPANY THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE
PARTIES.
[Signature page follows]
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IN WITNESS WHEREOF, the undersigned Borrower has caused this Convertible
Note to be duly issued and executed on the Date of Issue as stated above.
Address for Notice: Touchstone Resources USA, Inc.
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▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
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Title:
Attest by: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
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Title: Secretary
Guarantors, in consideration of Lender's loan, do hereby jointly and severally
guaranty performance under the Note and shall promptly pay principal, interest
and penalties that are not paid by Borrower to Lender pursuant to this Note.
This is an absolute and unconditional guaranty of payment and may be proceeded
upon by Lender before filing any action against Borrower or after any action
against Borrower has been commenced. Obligations of the Guarantors shall not be
discharged or impaired or otherwise affected by the failure of Lender to assert,
claim, demand or enforce any remedy under this Note, nor by waiver, modification
or amendment of this Convertible Note or by any compromise, settlement or
discharge of obligations of Borrower under this Note. Guarantors shall be given
10 days written notice by Lender of a default by Borrower prior to Lender
collecting from Guarantors. Each Guarantor joint and severally guarantees this
Note.
Touchstone Awakino, Inc.
Touchstone Louisiana, Inc.
Touchstone Vicksburg, Inc.
Touchstone Resources USA , Inc. (Texas)
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