EXHIBIT 10.15
SENIOR CONVERTIBLE NOTE DATED AUGUST 19, 1997 TO
XXXXXXX X. ST. XXXXXXX XX.
VITECH AMERICA, INC.
10% SENIOR NOTE
DUE August 19, 1999
$5,000,000 AUGUST 19, 1997
This Note is being issued in connection with the loan facility
established between Vitech America, Inc. and Xxxxxxx X. St. Xxxxxxx Xx.
established on August 19, 1997 for the principal amount of up to $10,000,000.
VITECH AMERICA, INC. a Florida corporation (the "Company") having its
principal office at 0000 Xxxxxxxxx 00xx Xxxxxx, Xxxxx, Xxxxxxx 00000, for value
received, hereby promises to pay to XXXXXXX X. ST. XXXXXXX XX., or registered
assigns (the "Holder") on August 19, 1999 or prior thereto as hereinafter
provided (the "Maturity Date") at the principal offices of the Company, the
outstanding principal sum of Five Million Dollars ($5,000,000) in legal tender
of the United States of America, and to pay interest on the outstanding
principal balance at the rate of ten percent (10%) per annum from the date
hereof until the Company's obligation with respect to the payment of such
principal sum shall be discharged as herein provided. Interest hereunder shall
accrue from the date of this Note and shall be payable monthly on the 1st day of
each month in arrears for interest accrued during the preceding month,
commencing September 1, 1997, while this Note is outstanding.
This Note is the direct obligation of the Company chargeable against
all of its property, whatsoever and wheresoever, both present and future, and,
if divided into separate Notes, all such Notes shall rank equal and ratably
without preference or priority of any of said Notes, over any others thereof.
CALL PROVISION
The Company shall have the right to redeem the Note, in whole or in
part, at 100% of the principal amount outstanding plus 1% per month for each
month the Note is held, with a maximum of 110%. Upon any prepayment of the
principal amount of this Note, all accrued but unpaid interest shall be paid to
the Holder of this Note on the date of prepayment. Upon notice of the Holder's
intent to convert, the Company's right to call the Note shall be surrendered
CONVERSION
This Note is convertible into shares of Common Stock of the Company, at
the option of the Holder with no less than ninety (90) days prior written notice
of the Holder's intent to covert, along with the Note, delivered to the
Company's offices. The Note may be converted in whole or in part, so long as the
part is One Million Dollars ($1,000,000) or a whole multiple of One Million
Dollars ($1,000,000).
The conversion rate shall be as follows:
(a) INITIAL CONVERSION PRICE: The Note shall be convertible at the
rate of one share of common stock for each $16.10 of principal
converted.
(b) CONVERSION PRICE RESET FEATURE: If the Put Feature described in
the section below is exercised by the Holder, and the Company does
not pay the full redemption price when due, then the conversion
price shall be reset to equal the lesser of (i) the Initial
Conversion Price, or (ii) 85% of the average closing bid price for
the 45 trading days prior to conversion. The Holder will agree not
to engage in the short selling of the Company's stock while this
feature is available.
On conversion, no payment or adjustment for interest shall be made. The
conversion price will be adjusted for dividends or distributions on Common Stock
payable in the Company's Common Stock, and for subdivisions, combinations or
certain reclassifications of the Company's Common Stock. If the Company is a
party to a consolidation or merger or transfer of all or substantially all of
its assets, the right to convert a Note into Common Stock will be changed into a
right to convert it into securities, cash or other assets of the Company or
another entity, on the same basis as the other common shareholders of the
Company.
Upon notification of the Holder's intent to convert, the Company will
use its best effort to file a registration statement on Form S-3 to register a
sufficient number of shares to satisfy the conversion of the Note.
PUT FEATURE
Commencing one year after the date of issuance, the Holder shall have
the right to cause the Company to repurchase the outstanding principal at a
price equal to 110% of the principal thereof plus accrued and unpaid interest.
The repurchase price shall increase at 1% per month until maturity of the note,
i.e. 110% plus 1% for each additional month after the twelfth month.
The Put Feature must be exercised on at least 60 days prior written
notice to the Company. After notification of the Holder's desire to exercise the
Put Feature, the anti-dilution provisions described above will be cancelled,
unless the
Put Feature is not successfully honored by the Company, whereupon the
anti-dilution rights shall return to full force. If the Holder has informed the
Company of his desire to exercise the Put Feature, and in the event that the
Company arranges new investors in a structure that is dilutive to the Holder,
the Holder shall have the right to invest or restructure the Note at the same
terms as the new investors.
OTHER HOLDER RIGHTS
If the Company consummates a structure more favorable to investors
after the date of this Note, then the Holder shall be entitled to either
adjustment in the terms of this Note to meet the terms of the new investors, or
repayment of the principal amount plus interest owing.
COVENANTS
The Company covenants and agrees that, so long as this Note shall be
outstanding, it will:
/bullet/ promptly pay and discharge all lawful taxes, assessments and
governmental charges or levies upon the Company or upon its income and
profits, or upon any of its property, before the same shall become in
default, as well as all lawful claims for labor, materials and
supplies, which, if unpaid, might become a lien or charge upon such
properties or any part thereof.
/bullet/ do or cause to be done all things necessary to preserve and keep in
full force and effect its corporate existence, rights and franchises
and comply with all laws applicable to the Company as its counsel may
advise.
/bullet/ keep adequately insured, by financially sound reputable insurers, all
property of a character usually insured by similar corporations and
carry such insurance as is usually carried by similar corporations.
/bullet/ at all times keep true and correct books, records and accounts.
EVENTS OF DEFAULT
This Note shall become due and payable upon written demand made by the
Holder hereof if one or more of the following events, herein called "events of
default", shall happen and be continuing as hereinafter provided:
/bullet/ Default in the payment of principal and accrued interest on this Note
when and as the same shall become due and payable, if such default
shall continued uncured for 30 days after due.
/bullet/ Default in the due observance or performance of any covenant, condition
or agreement on the part of the Company to be observed or performed
pursuant to the terms hereof, if such default shall continue uncured
for 60 days after written notice specifying such default shall have
been given to the Company by the Holder of the Note.
/bullet/ Application for, or consent to, the appointment of a receiver, trustee
or liquidator of the Company or of its property.
/bullet/ Admission in writing of the Company's inability to pay its debts as
they mature.
/bullet/ General assignment by the Company for the benefit of creditors
/bullet/ Filing by the Company of a voluntary petition in bankruptcy or a
petition or an answer seeking reorganization or an arrangement with
creditors.
MISCELLANEOUS
The Company may consider and treat the person in whose name this Note
shall be registered as the absolute owner thereof for all purposes whatsoever.
Payments of interest shall be made as specified above to the registered
owner of this Note. Payment of principal shall be made to the registered owner
of this Note upon presentation of this Note upon or after maturity. No interest
shall be due on this Note for such period of time that may elapse between the
maturity of this Note and its presentation for payment.
The Holder shall not, by virtue hereof, be entitled to any rights of a
shareholder in the company, either at law or in equity until conversion of this
Note, and the rights of the Holder are limited to those expressed in this Note.
This Note shall be construed and enforced in accordance with the laws
of the State of Florida.
IN WITNESS WHEREOF, VITECH AMERICA, INC. has caused this Note to be
signed in its name by an authorized officer of the Company.
VITECH AMERICA, INC.,
A FLORIDA CORPORATION
By: /S/ XXXXXX X. XXXXX
-----------------------
Xxxxxx X. Xxxxx,
Chief Financial Officer
