EXHIBIT 10.10
FIRST AMENDMENT TO
BIG BUCK BREWERY & STEAKHOUSE, INC.
NON-CONVERTIBLE SUBORDINATED PROMISSORY NOTE
THIS FIRST AMENDMENT TO BIG BUCK BREWERY & STEAKHOUSE, INC.
NON-CONVERTIBLE SUBORDINATED PROMISSORY NOTE ("First Amendment") is made this
29th day of March, 2001, by and between BIG BUCK BREWERY & STEAKHOUSE, INC.,
a Michigan corporation, as maker ("Maker"), and XXXXXXX X. XXXX, as payee
("Payee").
R E C I T A L S:
This First Amendment is based on the following Recitals:
A. The Maker and Payee entered into that certain Big Buck Brewery &
Steakhouse, Inc. Non-Convertible Subordinated Promissory Note with a
principal amount of $100,000 (incorrectly captioned a "Convertible
Subordinated Promissory Note") dated as of December 4, 2000 ("Note").
B. Under the terms of the Note, the Note will mature by its
terms on April 1, 2001.
C. Under the terms of the Note, Payee does not have the right
to convert the Note into shares of common stock of the Maker.
D. The Note incorrectly states that the Maker agreed to pay
interest beginning on January 1, 2000.
E. The parties desire to amend the Note in accordance with the
terms of this First Amendment.
NOW, THEREFORE, the parties agree as follows:
1. The Recitals set forth above are incorporated into and
shall form a part of this First Amendment.
2. The maturity date of the Note is extended from April 1,
2001, until October 1, 2001.
3. The Maker and the Payee confirm that the Maker agreed to
pay, and did begin in paying, interest beginning on January 1, 2001.
4. At any time prior to maturity, the Payee shall have the right to
convert all or part of the unpaid principal balance of the Note into that
number of shares of common stock of the Maker (the "Option") equal to (i) all
or such part of the unpaid principal balance of the Note being converted
divided by (ii) $1.00 (such conversion price representing the average of the
closing sale prices of one share of common stock of the Maker as quoted by
The Nasdaq Stock Market for the five trading days immediately prior to the
Maker's execution of this First Amendment), any fractional shares to be paid
in currency. To exercise the Option, Payee shall surrender the Note to the
Maker, accompanied by written notice of Payee's intention to exercise the
Option, which notice shall set forth the principal amount of the Note and
such portion of the unpaid principal balance of the Note, if not the entire
unpaid principal balance, to be converted into shares (the "Notice of
Conversion"). Within ten (10) business days of Maker's receipt of the Notice
of Conversion and Payee's surrender of the Note, Maker shall deliver or cause
to be delivered to the Payee, the shares in the name of the Payee. When
delivered, all shares shall be duly authorized, validly issued, fully paid,
and nonassessable.
Maker shall take any and all action necessary to maintain the required
authority to issue the shares to Payee in the event Payee exercises the
Option.
5. The Note and the shares issuable upon conversion thereof have not
been registered under the Securities Act of 1933, as amended, and have not
been registered under any state securities laws. They may not be sold,
offered for sale, assigned, transferred, pledged, or otherwise disposed of in
the absence of either an effective registration under the Securities Act of
1933, as amended, and under the applicable state securities laws, or an
opinion of counsel acceptable to the Maker that such transaction is exempt
from registration under the Securities Act of 1933, as amended, and under
applicable state securities laws.
6. Except as amended hereby, the Note is restated and republished in
its entirety and remains in full force and effect as a "Convertible
Subordinated Promissory Note."
7. This First Amendment shall be governed by and construed under the
laws of the State of Michigan. The Note may not be further amended or
modified except by a writing signed by all of the parties. This First
Amendment shall be binding upon and shall inure to the benefit of the parties
hereto and their permitted successors and assigns.
IN WITNESS WHEREOF, this First Amendment has been executed the day
and year first above written.
BIG BUCK BREWERY &
STEAKHOUSE, INC.,
a Michigan corporation
By: /s/ Xxxxxxx X. Xxxxxxxx
----------------------------------------
Xxxxxxx X. Xxxxxxxx
Its: President
"Maker"
/s/ Xxxxxxx X. Xxxx
-------------------------------------------
Xxxxxxx X. Xxxx
"Payee"
