LOAN AGREEMENT
THIS LOAM AGREEMENT (this "Agreement") is made and entered into this 28th
day of (October, 1995, by and between MERIS FINANCIAL INCORPORATED, a Nevada
corporation ("Lender"), and VITECH AMERICA, INC., a Florida corporation
("Borrower").
RECITALS:
A. Borrower has requested Lender to make a loan to Borrower in the
principal amount of $2,000,000 (the "Loan"), the proceeds of which shall be
utilized by Borrower in part for the purpose of purchasing inventory.
B. The Loan will be evidenced by a certain Promissory Note (the "Note")
dated of even date herewith executed by Borrower in favor of Lender. The Loan is
secured by and subject to the documents and instruments more particularly
described in Section 2.3 hereof (the "Collateral Documents~).
C. Lender is willing to make the Loan to Borrower as described above upon
and subject to the terms and conditions hereinafter set forth.
AGREEMENTS:
NOW, THEREFORE, in consideration of $10.00 and in reliance upon the
representations, warranties, covenants and Recitals hereinabove and hereinafter
set forth, and as contained in the instruments, agreements and documents
contemplated hereby, and for other good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, the parties hereby agree as
follows:
SECTION I
ADVANCE
1.1 Agreement to Advance. Upon the satisfaction of each of the conditions
hereinafter set forth, Lender agrees to advance to Borrower the Loan proceeds on
or before October 31, 1995.
SECTION II
AMOUNT AND GENERAL TERMS OF THE LOAN
2.1 The Loan. Borrower agrees to borrow from Lender, and Lender agrees to
advance to or for the benefit of Borrower, the total principal sum of Two
Million Dollars ($2,000,000} to be used to purchase inventory. ~
2.2 Promissory Note: Interest. In addition to being evidenced by this
Agreement, Borrower's obligation to repay the
Loan shall be further evidenced by the Note. The Note will bear interest and be
payable in accordance with the terms of the Note.
2.3 Collateral. The Loan will be secured by the assets, documents and
instruments described on the attached Schedule 2.3 (the "Collateral").
SECTION III
CONDITIONS PRECEDENT TO DISBURSEMENTS
The following conditions precedent shall be satisfied prior to Lender
making any advance hereunder:
4.1 Loan Documents. The documents evidencing or securing the Loan,
including, without limitation, this Agreement, the Collateral Documents and the
Note (collectively, the "Loan Documents") and other documents required by this
Agreement or any of the other Loan Documents and all closing documents which
Lender may require and all other writings reasonably deemed necessary by Lender
to close the Loan, in form and substance reasonably satisfactory to and approved
by Lender, shall have been duly and validly executed and delivered by Borrower
or such other person as may be appropriate, and in recordable form where
appropriate.
4.2 Accuracy of Representations and Warranties. The representations and
warranties contained herein and in the Loan Documents are then true with the
same effect as though they had been made at such time.
4.3 No Default. There shall exist or have occurred no condition, event or
act that would constitute an Event of Default under any of the Loan Documents or
any other instrument or agreement by which Borrower is bound and no condition,
event or act which, as a result of the giving of notice or the lapse of time, or
both, as specified in this Agreement, would constitute such an Event of Default.
4.4 No Waiver. Lender may, in its sole discretion, advance the Loan
proceeds even though the conditions in this Section are not satisfied. Any
advance so made shall be deemed to have been made pursuant to this Agreement and
shall not be deemed a waiver by Lender of any such default or any future default
or of the remedies afforded Lender in any of the Loan Documents nor a waiver of
any requirement by Lender that Borrower satisfy its obligation to Lender under
any of the foregoing.
SECTION V
REPRESENTATIONS AND WARRANTIES
Borrower hereby represents and warrants to Lender (all of said
representations and warranties, together with all of
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Borrower's covenants contained herein, which shall also be deemed to be
representations and warranties, and all representations and warranties set forth
elsewhere herein, or in any of the Loan Documents, shall survive until all
obligations of Borrower to Lender shall have been fully Performed, as follows:
5.1 Organization.
(a) Borrower is duly organized, validly existing and in good standing
under the laws of the state Florida and is qualified to do business and is
in good standing in each state in which it is doing business.
(b) Each of VITECH-VITORIA TECNOLOGIA S.A., BAHIATECHBAHIA TECNOLOGIA
LTDA., MULTISHOW-PRODUCTOS DE INFORMATICA E TELECOMMUNICACOES LTDA (the
"EntitiesN) are duly organized, validly existing and in good standing under
the laws of Brazil and the jurisdiction of its organization and are each
qualified to do business and are each in good standing under the laws of
Brazil and the jurisdiction of its organization and in each jurisdiction in
which it is doing business.
5.2 General Authority.
(a) Borrower has full power and authority to own its properties and
assets and to carry on its business as now being conducted.
(b) Each of the Entities has full power and authority to own its
properties and assets and to carry on its business as now being conducted.
5.3 Transaction Authority.
(a) Borrower is fully authorized and permitted to enter into the Loan
Documents, to execute any and all of the documentation required therein, to
borrow the amounts contemplated therein upon the terms set forth therein
and to perform the terms of the Loan Documents, none of which conflicts
with any provision of law or regulation applicable to Borrower. The Loan
Documents are valid and binding legal obligations of Borrower and each is
enforceable in accordance with its terms
(b) Each of the Entities is fully authorized and permitted to execute
any and all of the documentation required herein to be executed by the
Entities, to guarantee the Loan and to secure Borrower's payment and
performance hereunder in accordance with the Loan Documents and to perform
as required under the Loan Documents, none of which conflicts with any
provision of law or regulation applicable to such Entity. Each Loan
Document is a valid and binding legal obligations of the Entity executing
the Loan Document and each is enforceable in accordance with its terms.
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5.4 Security. The liens, security interests and assignments created by the
Loan Documents will, when granted, be valid, effective, properly perfected and
enforceable liens, security interests and assignments.
5.5 Third-Party Consents. Neither Borrower nor any Entity is required,
pursuant to any law, regulation or contractual or other obligation, to obtain
the consent, approval or authorization of any person (including any governmental
authority) to validly enter into, execute and deliver the Loan Documents and
perform the acts and obligations required or contemplated thereby.
5.6 Absence of Actions or Judgments.
(a) There are: (i) no outstanding or unpaid Judgments or arbitration
awards against Borrower; and (ii) no actions, suits or proceedings tin a
court of law or otherwise) pending or, to Borrower's knowledge, threatened
against Borrower or which materially affects Borrower which would
reasonably be expected to result in any material adverse change in the
business, operations, properties, assets or condition (financial or
otherwise) of Borrower, or would materially adversely affect Borrower's
ability to perform any of its contractual obligations and, there is no
basis known to Borrower for any such action, suit or proceeding. No
judgment, award, decree, order, action, suit or proceeding (whether in a
court of law or otherwise, and whether entered, outstanding, pending or
threatened) materially affects or could materially affect the ability of
Borrower to perform any of its obligations under the Loan Documents.
Borrower is not in default or violation with respect to any regulation,
order, writ, judgment or decree of any court or other governmental
authority, the violation of which would have a material and adverse effect
on the business of Borrower.
(b) There are: (i) no outstanding or unpaid judgments or arbitration
awards against any of the Entities; and (ii) no actions, suits or
proceedings (in a court of law or otherwise) pending or, to Borrower's
knowledge, threatened against any one of the Entities or which materially
affects any one of the Entities which would reasonably be expected to
result in any material adverse change in the business, operations,
properties, assets or condition (financial or otherwise) of the Entities or
would materially adversely affect an Entity's ability to perform any of its
contractual obligations and, there is no basin known to Borrower for any
such action, suit or proceeding. No judgment, award, decree, order, action,
suit or proceeding (whether in a court of law or otherwise, and whether
entered, outstanding, pending or threatened) materially affects or could
materially affect the ability of any one of the Entities to perform any of
its obligations under the Loan Documents. None of the Entities is in
default or violation with respect to any regulation, order, writ, judgment
or decree of any court or other
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governmental authority, the violation of which would have a material and adverse
effect on the business of such Entity.
5.7 Other Contracts: No Default. Neither Borrower nor any one of the
Entities is a party to or bound by any contract or instrument or subject to any
contractual restriction that does or may materially and adversely affect their
businesses, property, assets, operations or conditions, or restrict or impair
their ability to perform under the Loan Documents.
5.S Compliance With Laws and Other Regulations.
(a) To the best of Borrower's knowledge, after due inquiry, Borrower:
(i) is in compliance with all federal, state and local laws, rules,
regulations and requirements (whether tax, commercial or otherwise), and
all rules, regulations and requirements of all governmental authorities
having jurisdiction over it, the conduct of its business, the use of its
assets and properties and all property occupied by it; (ii) has properly
filed all reports, paid all monies and obtained all licenses, permits,
certificates and authorizations needed or required for the conduct of its
business and the use of its assets and properties and the property occupied
by it in connection therewith and is in material compliance in all respects
with all conditions, restrictions and provisions of all of the foregoing
except taxes and improvement district assessments which are presently in
arrears; and (iii) has not received any notice, not heretofore complied
with, from any governmental authority or any insurance or inspection body
that any of its assets, properties, facilities, equipment or business
procedures or practices fails to comply with any applicable law, ordinance,
regulation, building or zoning law or requirement of any public authority
or body. -
(b) To the best of Borrower's knowledge, after due inquiry, each of
the Entities: (i) is in compliance with all federal, state and local laws,
rules, regulations and requirements (whether tax, commercial or-
otherwise), and all rules, regulations and requirements of all governmental
authorities having jurisdiction over it, the conduct of its business, the
use of its assets and properties and all property occupied by the Entity;
(ii) has properly filed all reports, paid all monies and obtained all
licenses, permits, certificates and authorizations needed or required for
the conduct of its business and the use of its assets and properties and
the property occupied by it in connection therewith and is in material
compliance in all respects with all conditions, restrictions and provisions
of all of the foregoing except taxes and improvement district assessments
which are presently in arrears; and (iii) has not received any notice, not
heretofore complied with, from any governmental authority or any insurance
or inspection body that any of its assets, properties, facilities,
equipment or business procedures or practices fails to comply with any
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applicable law, ordinance, regulation, building or zoning law or requirement of
any public authority or body.
5.9 Non-Default of Borrower. The execution and delivery of the Loan
Documents and the performance of the obligations and acts required or
contemplated thereby will not result in the creation or imposition of, or be any
cause for imposing, any lien,- charge or encumbrance of any nature whatsoever
upon any of Borrower's or any of the Entity's property other than those
permitted, created, imposed or required by the Loan Documents. There exists no
Event of Default and there exists no event which, as a result of the giving of
notice or the lapse of time, or both, would constitute an Event of Default,
under any of the Loan Documents.
0.XX Financial Statements. All financial statements, profit and loss
statements, statements as to ownership and other statements or reports
previously or hereafter given to Lender by or on behalf of Borrower or any of
the Entities are and shall be true, complete and correct as of the date thereof.
There has been no material adverse change in the financial condition or the
results of the operation of Borrower or any Entity since the latest financial
statements of Borrower and the Entities given to Gender.
5.11 Tax Returns.
(a) Except for the years 1993 and 1994, Borrower has filed all
federal, state and local tax returns and has paid all of its current
obligations before delinquent, including all federal, state and local taxes
and all other payments required under federal, state or local law.
(b) Except for the years 1993 and 1994, the Entities have filed all
returns and reports and paid all of their current tax obligations before
delinquent and all other payments required by governing taxing authorities.
5.12 Propose of the Loan. The Loan is a business loan and the proceeds
thereof shall be used solely for commercial or business purposes, and no portion
thereof is intended to be or shall be used for the purpose (whether immediate,
incidental or ultimate) of consumer spending.
5.13 No Broker's or Finder's Fee. Borrower and Lender have not employed or
retained any broker or finder or incurred liability for any brokerage fees,
commissions or finder's fees in connection with the lending transactions
contemplated herein. Borrower and Lender hereby each indemnifies and holds
harmless the other from and against any claims by third parties for brokerage
fees, commissions or finder's fees claimed as a result of the indemnifying
party's acts or omissions in connection with the Loan.
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5.14 No Usury. Etc. To the best of Borrower's knowledge, after due inquiry,
the Loan is an exempt transaction under the Truth in Lending Act, 15 U.S.C.
(ss)1601, et seq.; and the Loan does not, and when disbursed will not, violate
the provisions of any Florida or federal usury laws, any consumer credit laws or
the usury laws Or consumer credit laws of any state which may have jurisdiction
over this transaction, Borrower or any property securing the Loan. Borrower
agrees to pay the interest rate -stated in the Note.
5.15 Property Value. The fair market value of the assets secured by the
Collateral Documents substantially exceeds the amount of the Loan.
5.16 Contract Rights. All leases, contracts, agreements and other
obligations affecting the assets secured by the Loan Documents to which Borrower
and/or an Entity is a party, under or by which any of them may be a payee, or by
which Borrower, an Entity or any of their assets is or may be bound are binding
and enforceable in accordance with their terms and neither Borrower, any of the
Entities nor any other party to any such agreement is in default or in arrears
thereunder nor has Borrower, any of the Entities or any other party to any such
agreement committed any act or failed to perform any obligations which, with the
passage of time or giving of notice or both, would constitute a default under
any such lease, contract, agreement or other obligation affecting their assets.
5.17 Hazardous Substances.
(a) There has been no production, disposal, transport, treatment,
storage or discovery of any hazardous waste or toxic substance affecting
the real property secured by the Loan Documents or otherwise leased to
Borrower or any of the Entities (the "Real Property").
(b) No activity has occurred on the Real Property which could have
toxic results; and there is no proceeding or inquiry pending or to
Borrower's knowledge anticipated by any governmental agency or other
authority with respect thereto.
(c) The Real Property is not now, nor has ever been, used for the
production, treatment, collection, storage or disposal of any refuse;
objectionable waste or any material.
(d) Borrower shall indemnify and hold Lender harmless from any loss
incurred by Lender by reason of the existence of any hazardous waste or
toxic substance. Without limiting the generality of the indemnification set
forth in Section 12.15 hereof or the foregoing, subject to the limitation
set forth below, Borrower hereby indemnifies Lender and agrees to hold
Lender harmless from and against any and all losses, liabilities, damages,
injuries, costs, expenses and claims of any and every kind whatsoever,
including reasonable attorneys' fees paid.
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incurred or suffered by, or asserted against, Lender for, with respect to, or as
a direct or indirect result of, the presence on or under, or the escape,
seepage, leakage, spillage, discharge, emissions, discharging or release from,
the Real Property, or into or Lion the land, the atmosphere, or any watercourse,
body of water or wetland of any hazardous material "including, without
limitation, any losses, liabilities, damages, injuries, coats, -expenses or
claims asserted or arising under any statute, law, ordinance, code, rule,
regulation, order or decree regulating, relating to or imposing liability or
Standards of conduct concerning any hazardous material).
5.17 No Other Agreements. The Loan Documents contain the complete
understanding of the parties with respect to the Loan transaction, and there are
no other oral or written understandings or agreements giving rice to any
expectation with respect to the Loan transaction or any interpretation of the
Loan terms except as set forth in the Loan Documents.
5.18 Untrue Statements. None of the information contained in the
representations and warranties set forth in this Agreement or in any of the
other Loan Documents made by Borrower to Lender, or in any certificate to be
delivered pursuant hereto or in connection with the transactions contemplated
hereby, contains or will contain any untrue statement of a material fact or
omits to state a material fact necessary to make the Statements contained
therein not misleading. In addition to the foregoing, Borrower has not failed to
inform Lender as to any material fact relating to Borrower's business, assets,
properties, prospects or affairs.
5.16 Capitalization. There are 1,OOO shares of no par value, voting common
stock issued and outstanding ("Stock") and no shares of preferred stock issued
and outstanding. There are no shares of Stock held as treasury shares. The sole
owners of record and sole beneficial owners of all of the shares of Stock are as
follows:
Georges St. Laurent, III 510 shares of Stock
Xxxxxxx St. Laurent 164 shares of Stock
Xxxxxxxx St. Laurent 163 shares of Stock
Alexander St. Laurent 163 shares of Stock
Other than: (i) that certain Stock Option Agreement with Lender and (ii)
commitments to issue no more than 400 shares of voting common stock, or
equivalent, Borrower is not a party to or bound by any contract, agreement or
arrangement to issue or sell any capital stock or any other security of Borrower
or any other security exercisable or convertible into any capital stock or any
other security of Borrower.
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SECTION VI
AFFIRMATIVE COVENANTS
6.1 Use of Loan Proceeds. Borrower shall expend the Loan proceeds in
accordance with Sections 2.1 and 5.9 of this Agreement and "hall in no event use
the same for any other purpose.
6.2 Financial Statements and Other Reports. Borrower shall keep books and
records in accordance with generally accepted accounting principles,
consistently applied, and shall deliver to Lender such financial and profit and
loss statements (in form satisfactory to Lender) on Borrower and the Entities as
Lender may request from time to time and will permit a representative on behalf
of Lender to examine and audit the books of business of Borrower and the
Entities. Borrower shall immediately inform Lender of any litigation involving
Borrower or the Entities, the adverse determination of which might prejudice
repayment of the Loan.
6.3 Payment of Taxes. Obligations. Indebtedness and Claims. Borrower will
payer cause to be paid all taxes, assessments and other governmental charges
imposed upon Borrower or any of the Entities or any of their properties or
assets or in respect to any business, income or property before any penalty or
interest accrues thereon, and all claims (including, without limitation, claims
for labor, services, materials and supplies) for sums which have become due and
payable and which by law have or may become a lien upon any of its properties or
assets. Without limiting the foregoing, Borrower shall pay or cause to be paid
when due, all bills, taxes, assessments, charger, levies or indebtedness
constituting a lien on the assets or properties of Borrower or the Entities.
Borrower represents and warrants that the outstanding principal balance on
indebtedness to Xxxxxxx St. Xxxxxxx, Xxxxxxx St. Laurent, Jr. or Georges St.
Laurent, III or any of their affiliates does not exceed $4,000,000 and that,
notwithstanding the the provisions of this Section 6.3, Borrower covenants and
agrees not to reduce or cause the Entities to reduce any indebtedness owing by
Borrower or the Entities to Xxxxxxx St. Laurent, Georges St. Laurent, Jr. (other
than payments not exceeding $100,000 per month) or Georges St. Laurent, III or
any of their affiliates without the prior written consent of Lender.
6.4 Inspection. Borrower will permit or cause to be granted permission for
any authorized representatives designated by Lender to visit and inspect the
physical facilities of Borrower and the Entities.
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6.5 Compliance with Laws. Etc. Borrower shall exercise or cause the
Entities to exercise all reasonable due diligence in order to comply with the
requirements of all applicable laws, rules, regulations and orders of any
governmental authority, noncompliance with which would adversely affect the
business, properties, assets, operations or condition (financial or otherwise)
of Borrower or the Entities.
6.6 Representations and Warranties Accurate. The representations and
warranties made by Borrower Shall be and remain true at all times with the same
effect as though the representations and warranties had been made at any and all
times during the term of this Agreement.
6.7 Compliance with Loan Documents. Borrower shall make all payments of
interest and principal in the Loan and shall keep and comply or cause the
Entities to keep and comply with all covenants, terms and provisions of the Loan
Documents.
SECTION VII
NEGATIVE COVENANTS
Borrower hereby agrees to undertake the following obligations:
7.1 Dissolution: Liquidation. Borrower shall not nor shall Borrower permit
the Entities to dissolve or liquidate, or merge or consolidate with or into any
other entity, or turn over the management or operation of their properties,
assets or business to any other person, firm or corporation; provided, however,
that in the event that Lender does not consent to any of the foregoing and a
Conversion (as that tern is defined in the Note) has not occurred, Borrower may
prepay the Loan in whole.
7.2 Disposition of Assets. Borrower shall not nor shall Borrower permit the
Entities to assign, transfer or convey any of its right, title and interest in
any property whether real or personal encumbered by the Loan Documents; create
or suffer to be created any mortgage, pledge, security interest, encumbrance or
other lien on any property encumbered by the Loan Documents; or create or suffer
to be created any mortgage, pledge, security interest, encumbrances or other
lien on any other property or assets which it now owns or hereafter acquires
except in consideration of the contemporaneous receipt by it of benefits equal
or greater in value to the lien created.
7.3 Restriction on Fundamental Changes. Borrower will not nor will Borrower
permit the Entities to:
(a) change the times of commencement or termination of its fiscal year
or other accounting periods; or change its methods of accounting other than
to conform to generally accepted accounting principles applied on a
consistent basis; or
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(b) enter into any transaction of bankruptcy (or suffer any bankruptcy
proceedings).
SECTION VIII
EVENTS OF DEFAULT
The existence or occurrence of any one or more of the following shall
constitute an Event of Default under the Loan Documents and all other documents
executed or to be executed in connection with the Loan:
8.1 Default in Performance: Breach of Condition.
(a) Borrower's default in the performance of any obligation to be
performed under, or breach of, any term, condition, covenant, warranty or
representation contained in any of the Loan Documents subject to applicable
notice and grace periods as set forth in the Loan Documents.
(b) A default by any of the Entities in the performance of any
obligation to be performed under, or breach of, any term, condition,
covenant, warranty or representation contained in any of the Loan Documents
subject to applicable notice and grace periods as set forth in the Loan
Documents.
8.2 Lien Status. Lender at any time shall fail to have a legal, valid,
binding and enforceable lien of the priority described herein on the
property and assets secured by the Loan Documents securing all advances
made now or at any time in the future Pursuant to the Note and the other
Loan document~
8.3 Unenforceability. Performance by Borrower or any of the Entities
of any obligation under any Loan Document is rendered unenforceable in any
respect.
SECTION IX
LENDER'S REMEDIES
Upon the occurrence of any Event of Default hereunder, Lender shall have
the absolute right, without further notice, at Lender's option and election and
in its sole discretion, to:
9.1 Acceleration. Declare all indebtedness of Borrower hereunder
immediately due and payable, without notice or demand.
9.2 Protect Collateral. Proceed to protect and enforce its rights and
remedies under the Loan Documents.
9.3 Advances to Cure Default. Advance such portion or portions of the Loan
or any other additional sums as may be necessary to cure any default. All sums
so advanced shall be
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deemed advances of principal under the Loan and the Note and shall bear interest
at the Default Rate.
9.4 Other Remedies. Exercise any other right, privilege or remedy available
to Lender under any of the Loan Documents. Lender shall have the right to
enforce any one or more of the remedies provided hereunder either successively
or concurrently, and any such action by Lender shall not be deemed an election
of remedies or otherwise prevent Lender from pursuing any further remedy it may
have hereunder or at law or in equity.
9.5 Costs and Expenses. Borrower shall pay to Lender upon demand all
reasonable costs, expenses and fees (including reasonable attorneys' fees),
whether suit be instituted or not, incurred by Lender in protecting or enforcing
its rights under the Loan Documents, and all expenses of taking possession,
holding and disposing of the Collateral, whether the same shall be paid or
incurred pursuant to provisions of this Section or otherwise, and all payments
made or liabilities incurred by Lender under this Agreement of any kind
whatsoever. All or any portion of such cost=, fees and expenses:, at Lender'=
election, and without notice, shall be payable on demand with interest at the
Default Rate "et forth in the Note computed from the date of disbursement
thereon or may be added to the principal balance of the Loan and shall bear
interest at the rate then and thereafter applied to said balance.
SECTION X
RIGHTS OF LENDER AGAINST COLLATERAL
The parties acknowledge and agree that the Loan is a single, unitary Loan
and that upon occurrence of an Event of Default, Lender is entitled to pursue,
in its sole discretion, its remedies against all or any of the Collateral
described in this Agreement. Furthermore, Borrower acknowledges and agrees that
he shall have no rights of contribution or subrogation against or from the
Collateral until such time a. all sums owed to Lender pursuant to this Agreement
and the other Loan Documents have been paid in full.
SECTION XI
REPRESENTATION BY QUALIFIED ADVISORS; ARM'S-LENGTH AGREEMENT;
EQUAL BARGAINING POWER
The parties to this Agreement represent, acknowledge and agree that, with
respect to this Agreement, each of the other Loan Documents, and all of the
transactions contemplated herein: (a) the parties are of equal or relatively
equal bargaining power; (b) the parties are represented by qualified counsel
and/or qualified business advisors and have been advised by and consulted with
such counsel and advisors; (c) the parties are aware of the risk" and benefits
associated with the Loan, the
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Loan Documents and the terms thereof, and such terms are in no sense grossly
unfair, oppressive or unconscionable; (d) the Loan (and each provision of the
Loan Documents) is an arm's-length, bargained-for transaction entered into by
the parties freely, with full knowledge of all facts and without duress or
Coercion of any form; and (e) each of the parties to this Agreement is
sophisticated and experienced in real estate, financing and commercial
transactions and understands the respective rights and obligations of the
parties under the Loan Documents.
SECTION XII
MISCELLANEOUS
12.1 This Loan Agreement Part of Loan Documents. The Loan Documents shall
be deemed to incorporate this Loan Agreement. In the event of a conflict between
any of the provisions of this Loan Agreement and any provision of any of the
other Loan Documents, the provisions of this Loan Agreement shall control. Any
breach or default by Borrower of any term or condition of this Loan Agreement
shall constitute a default under all other Loan Documents and vi so vent
12.2 Lender's Right to Appear in Litigation. Lender shall have the right to
commence, appear in or defend any action or proceeding which Lender believes may
affect the rights or duties of any of the parties hereunder or in connection
therewith or in and to the Collateral and in connection therewith, to pay all
necessary and reasonable expenses in connection therewith (including, but not
limited to, fees of counsel retained by Lender in connection with such action or
proceeding), and Borrower shall repay all of the foregoing expenses to Lender
upon demand. ~ -
12.3 No Other Parties to Benefit. The Loan Documents are made for the sole
benefit of Borrower and Lender and their successors and assigns, and no other
Person or entity is intended to or shall have any rights or benefits hereunder
or under any escrow account contemplated hereby, whether as third-party
beneficiary or otherwise.
12.4 Notice. All notices provided for herein and in the other Loan
Documents shall be in writing and shall be (a) personally delivered or delivered
by courier service (e.g., Federal Express) to the party being notified if an
individual, or (b) transmitted by certified or registered mail, return receipt
requested, addressed to all parties hereto at the address designated for each
party beside its signature or at such other address as the party who in to
receive such notice may designate in writing. Notice shall be deemed effective
and received upon: (i) the date of receipt if delivered by courier or by
personal delivery, or (ii) seven (7) days after the deposit of same in a letter
box or other means provided for the posting of mail, postage prepaid as provided
above. Failure to give notice to
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persons designated as also receiving copies of such notices "hall not affect the
validity of such notice if proper notice is effected with respect to the primary
party to receive same.
12.5 Construction. This Agreement and the other Loan Documents are intended
to express the mutual intent of the parties hereto after opportunity to consult
with counsel, and irrespective of the party preparing any document, no rule of
strict construction shall be applied against any party. All words used herein
shall refer to the appropriate number or gender, regardless of the number of
gender stated.
12.6 Modification and Waiver. No provision of this Loan Agreement shall be
amended, waived or modified except by an instrument in writing signed by the
parties hereto.
12.7 Materiality. All covenants, agreements, representations and warranties
made herein or in any document delivered in support of the Loan shall be deemed
to be material and to have been relied on by Lender in making this Loan, and
shall survive the execution and delivery of any of the Loan Documents and any
disbursement or advance of funds made pursuant to this Loan Agreement.
12.8 Headings. All sections and descriptive headings of sections in this
Loan Agreement are inserted for convenience only, and shall not affect the
construction or interpretation hereof .
12.9 Severability: Integration: Form and Substance of Documents: Time of
the Essence. Inapplicability or unenforceability of any provision of this Loan
Agreement shall not limiter impair the operation or validity of any other
provision of this Loan Agreement. The Loan Documents supersede all prior
agreements (including, without limitation, any commitment letter), and
constitute the entire agreement between the parties with respect to the subject
matter hereof. All documents and other matters required to be furnished by
Borrower shall be satisfactory in form and substance to counsel for Lender. Time
is of the essence hereof.
12.10 CounterDarts. This Loan Agreement may be executed in any number of
counterparts, each of which when executed and delivered, shall be an original,
but all of which shall together constitute one and the same instrument.
12.11 Assignability. Neither party "hall assign their rights or delegate
their obligation hereunder without the prior written consent of the other party.
12.12 No Agency Relationship. Borrower understands and agrees that Lender
is not its agent or representative.
-14-
12.13 No Joint Venture. Nothing contained in this Agreement or in any of
the other Loan Documents shall be construed as creating a joint venture,
partnership or any other relationship between Borrower and Lender except that of
debtor and creditor.
12.14 Waiver of Defaults. The waiver by Lender of any breach or default by
Borrower under any of the terms of any of the Loan Documents shall not be deemed
to be a waiver of any subsequent breach or default on the part of Borrower under
the same or any other of the Loan Documents.
12.15 Indemnification. Borrower agrees to indemnify and hold Lender
harmless from and against any and all losses, liabilities, claims, demands or
obligations which may be asserted in connection with or arising out of the Loan,
the Collateral or any aspect thereof, or a breach by Borrower of any
representations or warranties set forth herein, whenever asserted, and for all
reasonable expenses (including attorney=' fees) which may be incurred by Lender
on account of or arising out of or in connection with any such claim, demand or
obligation, except as arises out of the willful malfeasance or gross negligence
of Lender.
12.16 Lender's Consent. Whenever Lender's consent! approval or judgment is
called for in the Loan Documents, it may be withheld, exercised or given in
Lender's sole discretion unless otherwise provided.
12.17 Attorneys' Fees. Should any proceedings or litigation be commenced
between the parties hereto concerning the terms of this Agreement, or the rights
and duties of the parties hereto, the prevailing party in such proceeding or
litigation shall be entitled, in addition to such Other relief as may be
granted, to a reasonable sum as and for the prevailing party's attorneys' fees.
12.18 Further Assurances. Each party shall execute and deliver all such
other instruments and take all such other action as any party may reasonably
request from time to time, before or after the Closing, in order to effectuate
the transactions Provided for herein.
12.19 Incorporate Recitals. The prefatory language and Recitals made and
stated hereinabove are hereby incorporated by reference into, and made a part
of, this Agreement.
12.20 Participation. Lender, at any time, shall have the right to sell
participation interests in the Loan and in any documents and instruments
executed in connection herewith. Lender is authorized to furnish to any
participant or prospective participant any information or document that Lender
may have or obtain regarding the Loan, Borrower, guarantors of the Loan and the
Entities.
-15-
IN WITNESS WHEREOF, the parties hereto have executed this Loan Agreement as
of the day and year first above written.
ADDRESS FOR NOTICES TO "BORROWER"
BORROWER:
0000 Xxxxxxxxx 00xx Xxxxxx XXXXXX XXXXXXX, INC., a
Xxxxx, Xxxxxxx 00000 Florida Corporation
Attn: Xxxxxxx St. Laurent
By: /s/ Xxxxxxx St. Xxxxxxx
-------------------------------
Xxxxxxx St. Xxxxxxx
Its,: President
ADDRESS FOR NOTICES TO LENDER: "LENDER"
000 Xxxxx Xxxxxxxxx
Xxxxx 000X MERIS FINANCIAL INCORPORATED,
Xxxxxxx Xxxxxxx, Xxxxxx 00000 a Nevada corporation
Attn: Xxxxxxxx Xxxxx
WITH A COPY TO: By:________________________________
Xxxxxxxx X. Xxxxx
Xxxxx X. Short, Esq. President
Xxxxxxxx & Xxxxxx
0000 Xxxxx Xxxxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000-0000
-16-
Schedule 2.3
Description of Collateral ~
personal guaranty of Xxxxxxx St. Laurent
personal guaranty of Georges St. Laurent III
corporate/limited liability company guarantee of the 3 Brazilian
entities: (1) VITECH-VITORIA TECNOLOGIA S.A., (a) BAHIATECH-BAHIA
TECNOLOGIA LTDA., and (3) NULTISHOW-PRODUCTOS DE INFORMATICA E
TELECOMMUNICACOES LTDA. (collectively, the "Brazilian Entities")
collateral assignment of the beneficial rights under the following option
agreements:
a. option from Xxxxx Xxxxxxxxx Caldas in favor of Vitech for her 9 quotas
representing a 60% interest in Multishow Produtos de Informactica e
Telecomunicacoes Ltda. ("Multishow").
b. option from Georges St. Laurent, III in favor of Vitech for all but
.01% of his quotas representing a right to purchase a 39.99% interest
in Multishow.
c. option from Georges St. Laurent, III in favor of Vitech for all of his
shares (ordinary and preferred, currently owned or acquired in the
future) in Vitech Vitoria Tecnologia S.A. ("Vitoria").
d. option from Xxxxxxx St. Laurent in favor of Vitech for all of his
shares (ordinary and preferred, currently owned or acquired in the
future) in Vitoria.
e. option from Nicolas St. Laurent in favor of Vitech for his 51 quotas
representing a 51% interest in Bahiatech Bahia Tecnologia Ltda.
("Bahiatech").
f. option from Xxxxxxx St. Laurent in favor of Vitech all but .01% of his
quotas representing a right to purchase a 48.99% interest in
Bahiatech.
security interest in the fixed assets of the Brazilian Entities (excluding
inventory and accounts receivable)
second lien mortgage on real property Vitoria
security interest in the fixed assets of Borrower
-17-
pledge by Georges St. Laurent, XXX, Xxxxxxx St. St. Laurent, Xxxxxxxx Xxxxxxxx")
of Laurent and Alexander St. Laurent (the "St. their stockholdings in Borrower
pledge by the St. Xxxxxxxx of their ownership interests in the Brazilian
Entities
pledge of keyman life insurance on the St. Xxxxxxxx
-18-
UNCONDITIONAL GUARANTY
This Unconditional Guaranty (the "Guaranty") is made and entered into this
28 day of October, 1995, by and between XXXXXXX X. ST. LAURENT and XXXXX XXX
XXXXX ST. LAURENT, husband and wife (collectively, "Guarantor") and MERIS
FINANCIAL INCORPORATED, a Nevada corporation ("Lender").
RECITALS:
Contemporaneously with this Guaranty, Lender is making a loan to Vitech
America, Inc., a Florida corporation ("Borrower.), in the original principal
amount of Two Million Dollar ($2,000,000.00) (the "Loan"), which loan is
evidenced by a Promissory Note (the "Note") dated of even date herewith executed
by Borrower to the order of Lender. The Loan is secured by the collateral and
security instruments listed on the attached Exhibit "A. (the "Collateral"). All
documents and instruments evidencing or securing the Loan are hereinafter
referred to as the "Loan Documents".
AGREEMENT: For good and valuable consideration , the receipt and sufficiency of
which are hereby acknowledged and confessed by Guarantor, Guarantor hereby
unconditionally covenants and agrees with Lender as follows:
ARTICLE I
GUARANTEE
1.1 Guarantor jointly, severally, and unconditionally guarantees the full,
timely and faithful payment, performance and compliance by Borrower of and with
all the terms, covenants, conditions, agreements and provisions of the Loan
Documents (collectively, the "Obligations").
1.2 If Borrower or Guarantor defaults in the performance of any of the
Obligations, then within: (at five days after written notice from or on behalf
of Lender to the effect that there exist. such a default and identifying the
Obligations which Borrower or Guarantor has failed to pay or perform, or (b)
such unexpired grace period, if any, as Borrower or Guarantor may then have
remaining under the appropriate documents to cure such default before it becomes
an "event of default" (as the term may be defined under such document),
whichever period is longer, Guarantor, as demanded by Lender, will pay such
Obligations (including any amount which may have been accelerated as a result of
Borrower or Guarantor'. default) to Lender at its offices at 000 Xxxxx
Xxxxxxxxx, Xxxxx 000X, Xxxxxxx Xxxxxxx, Xxxxxx 0000-0 or such other address as
Lender may by notice direct, or will provide Lender with evidence of the
performance of the Obligations which Borrower has failed to perform. If
Guarantor fails to pay any sums due Lender hereunder within the period
applicable pursuant to the terms of the preceding sentence, then, as to
Guarantor, such sums shall bear interest at
the Default Rate (the term "Default Rate" shall have the name meaning as
ascribed to such term in the Note) in lieu of the interest rate otherwise
applicable thereto. Further, if Guarantor shall fail to pay any amount or
perform any obligation properly due Lender hereunder, Lender may institute and
pursue an action or proceeding to judgment or final decree and may enforce any
such judgment or final decree against Guarantor and collect in the manner
provided by law out of Guarantor's property, wherever situated, the monies
adjudged or decreed to be payable.
ARTICLE II
SUBORDINATION
2.1 Guarantor subordinates all of Guarantor's liens, security interests,
claims and rights of any kind that Guarantor may now have or hereafter acquire
against Borrower and/or Borrower's property resulting from Borrower's present
and future indebtedness to Guarantor (the Subordinated Indebtedness), and agrees
that all liens, security interests, claims and rights of any kind that Guarantor
may now have or hereafter acquire against Borrower and Borrower's property
resulting from the Subordinated Indebtedness shall be subordinate, inferior and
subject to the claims and rights of Lender against Borrower and/or Borrower's
property under the terms of any of the Loan Documents, whether direct or
contingent or whether now or hereafter created. Guarantor grants to Lender a
security interest in the Subordinated Indebtedness, which shall be collected,
enforced and received by the holder(s) thereof for Lender and be paid over to
Lender on account of the obligations, but without reducing or affecting in any
manner the liability of Guarantor under any of the other provisions of this
Guaranty; provided, however, that unless an Event of Default has occurred and is
continuing, Guarantor may retain for their own account reasonable salaries or
fees for services actually rendered to Borrower. Notwithstanding anything herein
to the contrary, if any portion of the Subordinated Indebtedness become" due and
payable prior to its stated maturity, Lender shall be entitled to receive full
performance of the Obligations before the holder(s) thereof are entitled to
receive any payment with respect to the Subordinated Indebtedness.
2.2 Guarantor will not take any action which will either (i) force the sale
of Borrower's property in order to Satisfy the Subordinated Indebtedness or (ii)
affect in any manner any and all of Lender's liens, security interests, claims
or rights of any kind that Lender may now have or hereafter acquire against
Borrower and/or Borrower's property. Guarantor will refrain from taking any
action which is in any way inconsistent with or in derogation of this
subordination or of- the rights of Lender hereunder and covenants to perform
such further acts a. necessary or appropriate to give effect to this
subordination. Without limiting the generality of the foregoing, Guarantor will
not assign any portion of the Subordinated Indebtedness, except expressly
subject to the terms of this Guaranty; and Guarantor shall cause all evidence of
-2-
the Subordinated Indebtedness to set forth the provisions hereof or to bear a
legend that it is subject hereto.
ARTICLE III
GENERAL COVENANTS AND WAIVERS OF
GUARANTOR: REMEDIES AND RIGHTS OF LENDER
3.1 Neither failure to give, nor defect in, any notice to Guarantor
concerning default in the performance of the Obligations, an Event of Default or
any event which might mature into an Event of Default shall extinguish or in any
way affect the obligations of Guarantor hereunder or the rights of Lender
hereunder. Neither demand on, nor the pursuit of any remedies against, Borrower
or any other guarantor of or surety for the Obligations ("Obligor") shall be
required as a condition precedent to, and neither the pendency nor the prior
termination of any action, suit or proceeding against Borrower or any other
Obligor (whether for the same or a different remedy) shall bar or prejudice, the
making of a demand on Guarantor by Xxxxxx and the commencement against
Guarantor, before or after such demand, of any action, suit or proceeding, at
law or in equity, for the specific performance of any covenant or agreement
contained in the Loan Documents or for the enforcement of any other appropriate
legal or equitable remedy.
3.2 The liability of each party named as a Guarantor hereunder is
continuing, primary, direct, immediate, and joint and several with Borrower,
each other party named as a Guarantor hereunder and each and every other
Obligor. Neither (a) the exercise or the failure to exercise by Lender of any
rights or remedies conferred on it under the Loan Documents, hereunder or
existing at law or otherwise, or against any Collateral, (b) the commencement of
an action at law or the recovery of a judgment at law against Borrower or any
other Obligor and the enforcement thereof through levy or execution or
otherwise, (c) the taking or institution or any other action or proceeding
against Borrower or any other Obligor, nor (d) any delay in taking, pursuing or
exercising any of the foregoing actions, rights, powers or remedies (even though
requested by Guarantor, by Lender or anyone acting for Lender), shall extinguish
or affect the obligations of Guarantor hereunder, but Guarantor shall be and
remain liable for all Obligations until fully paid, notwithstanding the previous
discharge (total or partial) from further liability of Borrower or any other
Obligor or the existence of any bar (total, partial or temporary) to the pursuit
by Guarantor of any right or claim to indemnity against Borrower or any other
Obligor or any right or claim of Guarantor or any other Obligor to be subrogated
to the rights or claims of Lender in and to the Collateral resulting from any
action, failure or omission to act or delay in acting by Lender, or anyone
entitled to act in its place.
3.3 Except as expressly set forth herein in this or any other Loan
Document, Guarantor hereby expressly waives: (a) notice of the acceptance by
Lender of this Guaranty; (b) notice of the
-3-
existence, creation or nonpayment of all or any of the Obligations; (c)
presentment, protest, demand, notice of dishonor, protest and all other notices
whatsoever; (d) all diligence in collection or protection of or realization on
the Obligations of any thereof, any obligating hereunder, or any security for or
guarantee of any of the foregoing; (e) any and all suretyship defenses and
defenses in the nature thereof; (f) the claim that the Loan Documents were not
duly authorized and executed by Borrower or are not legal, valid and binding
instruments, enforceable in accordance with their terms; (g) any right to raise
the defense of the statute of limitations in any action hereunder or for the
collection of the Obligation-; (h) any right to raise any defense by reason of
incapacity, lack of authority, death or disability of or revocation hereof by
any other guarantor of the failure of Lender to file or enforce a claim against
the estate (probate, bankruptcy or any other proceeding) of any other guarantor;
(i) any right to raise any defense based upon an election of remedies by Lender;
and (I) any right to impose any duty on the part of Lender to disclose to
Guarantor any facts it may now or hereafter know about Borrower, regardless of
whether Lender has reason to believe that such facts are unknown to Guarantor or
ha a reasonable opportunity to communicate such facts to Guarantor, it being
understood and agreed that Guarantor is fully responsible for being and keeping
informed of the financial condition of Borrower and of all circumstances bearing
on the risk of non-payment or non-performance of the Obligations.
3.4 If Guarantor at any time becomes insolvent or admits in writing the
inability to pay their debts as they mature, or generally falls to pay
Guarantor's debts as they mature, or apply for, consent to or acquiesce in the
appointment of a trustee, receiver, liquidator, assignee, sequestrator or other
similar official for Guarantor or any of Guarantor's property; or, in the
absence of such application, consent or acquiescence, a trustee, receiver,
liquidator, assignee, sequestrator or other similar official is appointed for
Guarantor, or for a substantial part of Guarantor's property and is not
discharged within ninety (90) day-; or if any bankruptcy, reorganization, debt
arrangement or other proceeding under any bankruptcy, admiralty or insolvency
law or at common law or in equity is instituted by or against Guarantor, or
remains for ninety (90) days undismissed, and if any such event shall occur at a
time when any of the Obligations may not be then due and payable, then Guarantor
will pay to Lender forthwith the whole then unpaid amount of the Note (together
with any other sums due under the Loan Documents herein called the Unpaid
Amount.), whether or not then due and payable, as if such Unpaid Amount were
then due and payable. Furthermore, in any such event Lender, irrespective of
whether any demand shall have been made on Guarantor, Borrower or any other
Obligor, by intervention in or initiation of proceedings relative to Guarantor,
Guarantor'. creditors or Guarantor's property, may file and prove a claim or
claims for the whole Unpaid Amount or any portion thereof and file such other
papers or documents as may be necessary or advisable in order to have such claim
allowed in such proceedings and to collect
-4-
and receive any monies or other property payable or deliverable on any such
claim, and to distribute the same; and any receiver, assignee or trustee in
bankruptcy or reorganization is hereby authorized to make such payments to
Lender.
3.5 The benefits, remedies and rights provided or intended to be provided
hereby for Lender are in addition to and without prejudice to any rights,
benefits, remedies or security to which Lender might otherwise be entitled.
3.6 Anything else contained herein to the contrary notwithstanding' Lender,
from time to time, without notice to Guarantor, may take all or any of the
following actions without in any manner affecting or impairing the liability of
Guarantor hereunder: (a) receive or accept a lien or a security interest in any
property to secure any of the Obligations or any obligation hereunder; (b)
receive or accept the primary or secondary liability of any party or parties, in
addition to Guarantor, with respect to any of the Obligations; (c) renew, extend
or otherwise change the time for payment or performance of the Obligations; (d)
release of compromise any liability of Guarantor hereunder or any liability of
any nature of any other party or parties with respect to the Obligations; (e)
exchange, enforce, waive, release and apply any Collateral and direct the order
or manner of sale thereof as Lender may in its discretion determine; (f) resort
to Guarantor for payment of any Obligations, whether or not Lender shall proceed
against any other party primarily or secondarily liable on any of the
Obligations; and (g) agree to any amendment, modification or alteration of the
Loan Documents and/or exercise any of its rights conferred by the Loan Documents
or by law.
3.7 No delay on the part of Lender in the exercise of any right or remedy
shall operate as a waiver thereof, and no single or partial exercise by Lender
of any right or remedy shall preclude other or further exercise thereof or the
exercise of any other right or remedy; nor shall any modification or waiver of
any of the provisions of this Guaranty be binding on Lender except as expressly
set forth in writing, duly signed and delivered on behalf of Lender. No action
of Lender permitted hereunder shall in any way affect or impair the rights of
Lender and the obligations of Guarantor under this Guaranty.
3.8 If at any time all or any part of any payment theretofore applied by
Lender to any of the Obligations is or must be rescinded or returned by Lender
for any reason whatsoever (including, without limitation, the insolvency, or
bankruptcy of Borrower), such Obligations, for purposes of this Guaranty, to the
extent that such payment is or must be rescinded or returned, shall be deemed to
have never been performed; and this Guaranty shall continue to be effective or
be reinstated, as the case may be, a" to such Obligations, all as though such
application by Lender had not been made.
-5-
3.9 Until all the Obligations have been paid and performed in full,
Guarantor shall have no right of subrogation and hereby waives any right to
participate in any of the collateral for the Obligations.
3.10 It is not necessary for Lender to inquire into the powers of Borrower
or its trustees or agents purporting to act on its behalf and the Obligations
are hereby guaranteed notwithstanding the lack of power or authority on the part
of Borrower or anyone acting on its behalf to incur the Obligations.
ARTICLE IV
GUARANTOR'S WARRANTIES
4.1 Guarantor represents and warrants to Lender that:
(a) Guarantor, Xxxxxxxx St. Laurent, Alexander St. Laurent and Georges
St. Laurent, III are the sole Shareholders of the Borrower.
(b) The execution, delivery and performance by Guarantor of this
Guaranty does not and will not conflict with or contravene any law, rule,
regulation, judgment, order or decree of any government, governmental
instrumentality or court having jurisdiction over Guarantor or Guarantor's
activities or properties or conflict with, or result in any default under
any agreement or instrument of any kind to which Guarantor is a party or by
which Guarantor or Guarantor's properties may be bound or affected.
(c) Neither the execution and delivery by Guarantor of this Guaranty
nor the performance by Guarantor hereunder requires the consent, approval,
order or authorization of, or registration with, or the giving of notice to
any governmental authority, domestic or foreign.
(d) This Guaranty has been duly executed and delivered by Guarantor
and constitutes a legal, valid and binding obligation of Guarantor
enforceable against Guarantor in accordance with its terms.
(e) There is no action, litigation or other proceeding pending or, to
Guarantor's best knowledge, threatened against Guarantor before any court,
arbitrator or administrative agency which may have an adverse effect on
Guarantor's assets, businesses, or financial condition or which would
prevent, hinder or Jeopardize Guarantor's performance under this Guaranty.
(f) Guarantor is fully familiar with all of the covenants, terms and
conditions of the Loan Documents and has reviewed such documents personally
and with counsel.
(g) Except as may be set forth in the written financial statements
Presented by Guarantor to Lender. Guarantor is not a
-6-
party to any contract, agreement, indenture or instrument or subject to any
restriction which individually or in the aggregate require any obligations of
Guarantor to be performed as of the date hereof or as a result of executing this
Guaranty, which might adversly affect Guarantor's financial condition or
businesses, or which would in any way jeopardize the ability of Guarantor to
perform hereunder.
ARTICLE V
MISCELLANEOUS PROVISIONS
5.1 All the covenants, stipulations, promises and agreement. contained in
this Guaranty by or on behalf of Guarantor are for the benefit of Lender, its
successors or assigns and shall bind Guarantor, Guarantor's heir-, executors,
personal representatives, successors and assigns. Lender, without notice of any
kind, may sell, assign or transfer the Loan Documents and/or the Collateral, and
in such event each and every immediate and successive assignee or transferee
thereof may be given the right by Lender to enforce this Guaranty in full, by
suit or otherwise, for its own benefit. Guarantor agrees for the benefit of any
such assignee or transferee that Guarantor's obligations hereunder shall not be
subject to any reductions, abatement, defense, set-off, counterclaim or
recoupment for any reason whatsoever.
5.2 All notices provided for herein shall be in writing and shall be (a)
personally delivered or delivered by courier service (e.g., Federal Express) to
the party being notified if an individual, or (b) transmitted by certified or
registered mail, return receipt requested, addressed to all parties hereto at
the address designated for each party beside its signature or at such other
address as the party who is to receive such notice may designate in writing.
Notice shall be deemed effective and received upon: (i) the date of receipt if
delivered by courier or by personal delivery, or (ii) seven (7) days after the
deposit of same in a letter box or other means provided for the posting of mail,
postage prepaid as provided above. Failure to give notice to persons designated
as also receiving copies of such notices shall not affect the validity of such
notice if proper notice is effected with respect to the primary party to receive
same.
5.3 Terms used and not otherwise defined herein shall have the same
meanings given thereto in the Loan Documents.
5.4 This Guaranty has been delivered and accepted in Miami, Florida. This
Guaranty shall in all respects be governed by and construed and enforced in
accordance with the internal, substantive laws of the State of Florida.
Guarantor: (a) hereby irrevocably submits himself to the process and
jurisdiction of the courts of the State of Florida and to the venue in and for
the County of Dade, for the purpose of suit, action or other proceedings arising
out of or relating to this Guaranty or the subject matter hereof brought by
Lender; and (b) without limiting the generality of the
-7-
foregoing, hereby waive and agree not to assert by way of motion, defense or
otherwise in any such suit, action or proceeding any claim that Guarantor is not
personally subject to the jurisdiction of the above-named courts, that such
suit, action or proceeding is brought in an inconvenient forum or that the venue
of such suit, action or proceeding is improper.
5.5 Any provision of this Guaranty which is prohibited or unenforceable in
any jurisdiction shall, as to such Jurisdiction, be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining
provisions hereof, and no such prohibition or unenforceability shall invalidate
or render unenforceable such provision in any other jurisdiction.
5.6 None of the provisions of this Guaranty shall be limited to any
particular period of time, but rather all such provision. shall continue
absolutely, unconditionally and irrevocably until all the terms, covenants,
conditions and Obligations set forth in the Loan Documents have been fully
performed by Borrower; and Guarantor shall not be released from any duty,
obligation or liability hereunder so long as there is any claim of Lender
against Borrower arising out of the Loan Documents.
5.7 This Agreement may be executed in any number of counterparts, each of
which shall have the force and effect of an original.
ARTICLE VI
TERMINATION
6.1 Upon an "IPO Event" Guarantor's liability hereunder shall extinguish.
For purposes of this Section 6.1, the term "IPO Event" means that Borrower has
an effective registration statement filed with the Securities Exchange
Commission for the public sale of voting common stock of Borrower.
IN WITNESS WHEREOF, the parties hereto have executed this Guaranty as of
the day and year first above written.
ADDRESS FOR NOTICES TO "GUARANTOR"
GUARANTOR:
0000 Xxxxxxxxx 00xx Xxxxxx
Xxxxx, Xxxxxxx 00000 /S/ Xxxxxxx X. St. Laurent
Attn: Xxxxxxx St. Laurent ------------------------------------
Xxxxxxx X. St. Laurent
/S/ Xxxxx Xxx Xxxxx St. Laurent
------------------------------------
Xxxxx Xxx Xxxxx St. Laurent
-8-
ADDRESS FOR NOTICES TO LENDER: "LENDER"
000 Xxxxx Xxxxxxxxx
Xxxxx 000X MERIS FINANCIAL INCORPORATED,
Xxxxxxx Xxxxxxx, Xxxxxx 00000 a Nevada corporation
Attn: Nicho1as Meris
WITH A COPY TO:
Xxxxx X. Short, Esq. By:________________________________
Xxxxxxxx & Xxxxxx Xxxxxxxx X. Xxxxx
0000 Xxxxx Xxxxxxx Xxxxxx Xxxxxxxxx
Xxxxx 0000
Phoenix. Arizona 85004-1047
STATE OF __________________ )
) ss
County of _________________ )
The foregoing instrument was acknowledged before me this _____ day of
_______________________, 1995, by Xxxxxxxx X. Xxxxx, the President of Meris
Financial Incorporated, a Nevada corporation, on behalf of the Corporation.
-----------------------------------
Notary Public
My Commission Expires:
----------------------------------
STATE OF FLORIDA )
) ss
County of Dade )
The foregoing instrument was acknowledged before me this 28 day of October,
1995, by XXXXXXX X. ST. LAURENT AND XXXXX XXX XXXXX ST. LAURENT.
/S/ Xxxxx X. Xxxx
-----------------------------------
Notary Public
My Commission Expires:
----------------------------------
OFFICIAL NOTARY SEAL
XXXXX X. XXXX
COMMISSION NUMBER
CC437527
MY COMMISSION EXP.
FEB. 7,1999
-9-
Exhibit "A"
Description of Collateral
personal 'guaranty of Xxxxxxx St. Laurent
personal guaranty of Georges St. Laurent III
corporate/limited liability company guarantee of the 3 Brazilian entities: (1)
VITECH-VITORIA TECNOLOGIA S.A., (2) BAHIATECH-BAHIA TECNOLOGIA LTDA., and (3)
MULTISHOW-PRODUCTOS DE INFORMATICA E TELECOMMUNICACOES LTDA. (collectively, the
"Brazilian Entities
collateral assignment of the beneficial rights under the following option
agreements:
a. option from Xxxxx Xxxxxxxxx Caldas in favor of Vitech for her 9 quotas
representing a 60% interest in Multishow Produtos de Informactica e
Telecomunicacoes Ltda. ("Multishow").
b. option from Georges Xx. Xxxxxxx, X0X in favor of Vitech for all but
.01% of his quotas representing a right to purchase a 39.99% interest
in Multishow.
c. option from Georges St. Laurent, III in favor of Vitech for all of his
shares (ordinary and preferred, currently owned or acquired in the
future) in Vitech Vitoria Tecnologia S.A. ("Vitoria").
d. option from Xxxxxxx St. Laurent in favor of Vitech for all of his
shares (ordinary and preferred, currently owned or acquired in the
future) in Vitoria.
e. option from Nicolas St. Laurent in favor of Vitech for his 51 quotas
representing a S1% interest in Bahiatech Bahia Tecnologia Ltda.
("Bahiatech").
f. option from Xxxxxxx St. Laurent in favor of Vitech for all but .01% of
his quotas representing a right to purchase a 48.99% interest in
Bahiatech.
security interest in the fixed assets of the Brazilian Entities (excluding
inventory and accounts receivable)
second lien mortgage on real property Vitoria security interest in the fixed
assets of Borrower
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pledge by Georges St. Laurent, XXX, Xxxxxxx St. Xxxxxxx, Xxxxxxxx St. Laurent
and Alexander St. Laurent (the "St. Xxxxxxxx.) of their stockholdings in
Borrower
pledge by the St. Xxxxxxxx of their ownership interests in the Brazilian
Entities
pledge of keyman life insurance on the St. Xxxxxxxx
-11-
UNCONDITIONAL GUARANTY
This Unconditional Guaranty (the "Guaranty") is made and entered into this
28 day of October, 1995, by and between GEORGES ST. LAURENT, III, an unmarried
man ("Guarantor") and MERIS FINANCIAL INCORPORATED, a Nevada corporation
(blenders).
RECITALS:
Contemporaneously with this Guaranty, Lender is making a loan to Vitech
America, Inc., a Florida corporation ("Borrower"), in the original principal
amount of Two Million Dollar ($2,000,000.~) (the "Loan.), which loan is
evidenced by a Promissory Note (the "Note") dated of even date herewith executed
by Borrower to the order of Lender. The Loan is secured by the collateral and
security instruments listed on the attached Exhibit "A" (the "Collateral"). All
documents and instruments evidencing or securing the Loan are hereinafter
referred to as the "Loan Documents".
AGREEMENT: For good and valuable consideration , the receipt and sufficiency of
which are hereby acknowledged and confessed by Guarantor, Guarantor hereby
unconditionally covenants and agrees with Lender as follows:
ARTICLE I
GUARANTEE
1.1 Guarantor jointly, severally, and unconditionally guarantees the full,
timely and faithful payment, performance and compliance by Borrower of and with
all the terms, covenants, conditions, agreements and provisions of the Loan
Documents (collectively, the "Obligations).
1.2 If Borrower or Guarantor defaults in the performance of any of the
Obligations, then within: (a) five days after written notice from or on behalf
of Lender to the effect that there exists such a default and identifying the
Obligations which Borrower or Guarantor has failed to pay or perform, or (b)
such unexpired grace period, if any, as Borrower or Guarantor may then have
remaining under the appropriate documents to cure such default before it becomes
an "event of default" (as the term may be defined under such document),
whichever period is longer, Guarantor, as demanded by Lender, will pay such
Obligations (including any amount which may have been accelerated as a result of
Borrower or Guarantor 'a default) to Lender at its offices at 000 Xxxxx
Xxxxxxxxx, Xxxxx 000X, Xxxxxxx Xxxxxxx, Xxxxxx 00000 or such other address a.
Lender may by-notice direct-, or will provide Lender with evidence of the
performance of the Obligations which Borrower has failed to perform. If
Guarantor fails to pay any sums due Lender hereunder within the period
applicable pursuant to the terms of the preceding sentence, then, as to
Guarantor, such sums shall bear interest at the Default Rate (the term default
Rates shall have the name
meaning as ascribed to such term in the Note) in lieu of the interest rate
otherwise applicable thereto. Further, if Guarantor shall fail to pay any amount
or perform any obligation properly due Lender hereunder, Lender may institute
and pursue an action or proceeding to judgment or final decree and may enforce
any such judgment or final decree against Guarantor and collect in the manner
provided by law out of Guarantor's property, wherever situated, the monies
adjudged or decreed to be payable.
ARTICLE II
SUBORDINATION
2.1 Guarantor subordinates all of Guarantor's liens, security interests,
claims and rights of any kind that Guarantor may now have or hereafter acquire
against Borrower and/or Borrower 'a property resulting from Borrower's present
and future indebtedness to Guarantor (the "Subordinated Indebtedness"), and
agrees that all liens, security interests, claims and rights of any kind that
Guarantor may now have or hereafter acquire against Borrower and Borrower's
property resulting from the Subordinated Indebtedness shall be subordinate,
inferior and subject to the claims and right. of Lender against Borrower and/or
Borrower's property under the terms of any of the Loan Documents, whether direct
or contingent or whether now or hereafter created. Guarantor grants to Lender a
security interest in the Subordinated Indebtedness, which shall be collected,
enforced and received by the holder(s) thereof for Lender and be paid over to
Lender on account of the obligations, but without reducing or affecting in any
manner the liability of Guarantor under any of the other provisions of this
Guaranty; Provided, however, that unless an Event of Default has occurred and is
continuing, Guarantor may retain for their own account reasonable salaries or
fees ~for services actually rendered to Borrower. Notwithstanding anything
herein to the contrary, if any portion of the Subordinated Indebtedness becomes
due and payable prior to its stated maturity, Lender shall be entitled to
receive full performance of the Obligations before the holder(s) thereof are
entitled to receive any payment with respect to the Subordinated Indebtedness.
2.2 Guarantor will not take any action which will either (i) force the sale
of Borrower's property in order to satisfy the Subordinated Indebtedness or (ii)
affect in any manner any and all of Lender's liens, security interests, claims
or rights of any kind that Lender may now have or hereafter acquire against
Borrower and/or Borrower's property. Guarantor will refrain from taking any
action which is in any way inconsistent with or in derogation of this
subordination or of the rights of Lender hereunder and covenants to perform such
further acts as necessary or appropriate to give effect to this subordination.
Without limiting the generality of the foregoing, Guarantor will not assign any
portion of the Subordinated Indebtedness, except expressly subject to the terms
of this Guaranty; and Guarantor shall cause all evidence of
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the Subordinated Indebtedness to "et forth the provisions hereof or to bear a
legend that it is subject hereto.
ARTICLE III
GENERAL COVENANTS AND WAIVERS OF
GUARANTOR: REMEDIES AND RIGHTS OF LENDER
3.1 Neither failure to give, nor defect in, any notice to Guarantor
concerning default in the performance of the Obligations, an Event of Default or
any event which might mature into an Event of Default shall extinguish or in any
way affect the obligations of Guarantor hereunder or the rights of Lender
hereunder. Neither demand on, nor the pursuit of any remedies against, Borrower
or any other guarantor of or surety for the Obligations ("Obligor") shall be
required as a condition precedent to, and neither the pendency nor the prior
termination of any action, Suit or proceeding against Borrower or any other
Obligor (whether for the same or a different remedy) shall bar or prejudice, the
making of a demand on Guarantor by Lender and the commencement against
Guarantor, before or after such demand, of any action, suit or proceeding, at
law or in equity, for the specific performance of any covenant or agreement
contained in the Loan Documents or for the enforcement of any other appropriate
legal or equitable remedy.
3.2 The liability of each party named as a Guarantor hereunder is
continuing, primary, direct, immediate, and joint and several with Borrower,
each other party named as a Guarantor hereunder and each and every other
Obligor. Neither (a) the exercise or the failure to exercise by Lender of any
rights or remedies conferred on it under the Loan Documents, hereunder or
existing at law or otherwise, or against any Collateral, (b) the commencement of
an action at raw or the recovery of a judgment at law against Borrower or any
other Obligor and the enforcement thereof through levy or execution or
otherwise, (c) the taking or institution or any other action or proceeding
against Borrower or any other Obligor, nor (d) any delay in taking, pursuing or
exercising any of the foregoing actions, rights, powers or remedies (even though
requested by Guarantor, by Lender or anyone acting for Lender), shall extinguish
or affect the obligations of Guarantor hereunder, but Guarantor shall be and
remain liable for all Obligations until fully paid, notwithstanding the previous
discharge (total or partial) from further liability of Borrower or any other
Obligor or the existence of any bar (total, partial or temporary) to the pursuit
by Guarantor of any right or claim to indemnity against Borrower or any other
Obligor or any right or claim of Guarantor or any other Obligor to be subrogated
to the rights or claims of Lender in and to the Collateral resulting from any
action, Failure or omission to act or delay in acting by Lender, or anyone
entitled to act in its place.
3.3 Except as expressly set forth herein in this or any other Loan
Document, Guarantor hereby expressly waives: (a) notice of the acceptance by
Lender of this Guaranty; (b) notice of the
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existence, creation or nonpayment of all or any of the Obligations; (e)
presentment, protest, demand, notice of dishonor, protest and all other notices
whatsoever; (d) all diligence in collection or protection of or realization on
the Obligations of any thereof, any obligation hereunder, or any security for or
guarantee of any of the foregoing; (e) any and all suretyship defenses and
defenses in the nature thereof; (f) the claim that the Loan Documents were not
duly authorized and executed by Borrower or are not legal, valid -and binding
instruments, enforceable in accordance with their terms; (g) any right to raise
the defense of the statute of limitations in any action hereunder or for the
collection of the Obligations; (h) any right to raise any defense by reason of
incapacity, lack of authority, death or disability of or revocation hereof by
any other guarantor of the failure of Lender to file or enforce a claim against
the estate (probate, bankruptcy or any other proceeding) of any other guarantor;
(i) any right to raise any defense based upon an election of remedies by Lender;
and (I) any right to impose any duty on the part of Lender to disclose to
Guarantor any facts it may now or hereafter know about Borrower, regardless of
whether Lender has reason to believe that such facts are unknown to Guarantor or
ha a reasonable opportunity to communicate such facts to Guarantor, it being
understood and agreed that Guarantor is fully responsible for being and keeping
informed of the financial condition of Borrower and of all circumstances bearing
on the risk of non-payment or non-performance of the Obligations. .
3.4 If Guarantor at any time becomes insolvent or admits in writing the
inability to pay their debts as they mature, or generally falls to pay
Guarantor's debts as they mature, or apply for, consent to or acquiesce in the
appointment of a trustee, receiver,- liquidator, assignee, sequestrator or other
similar official for Guarantor or any of Guarantor's property; or, in the
absence of such application, consent or acquiescence, a trustee, receiver,
liquidator, assignee, sequestrator or other similar official is appointed for
Guarantor, or for a substantial part of Guarantor's property and is not
discharged within ninety (90) days; or if any bankruptcy, reorganization, debt
arrangement or other proceeding under any bankruptcy, admiralty or insolvency
law or at common law or in equity is instituted by or against Guarantor, or
remains for ninety (90) days undismissed, and if any such event shall occur at a
time when any of the Obligations may not be then due and payable, then Guarantor
will pay to Lender forthwith the whole then unpaid amount of the Note (together
with any other sums due under the Loan Documents herein called the Unpaid
Amount.), whether or not then due and payable, as if such Unpaid Amount were
then due and payable. Furthermore, in any such event Lender, irrespective of
whether any demand shall have been made on Guarantor, Borrower or any other
Obligor, by intervention in or initiation of proceedings relative to Guarantor,
Guarantor's creditors or Guarantor's property, may file and prove a claim or
claims for the whole Unpaid Amount or any portion thereof and file such other
papers or documents as may be necessary or advisable in order to have such claim
allowed in such proceedings and to collect
-4-
and receive any monies or other property payable or deliverable on any such
claim, and to distribute the same; and any receiver, assignee or trustee in
bankruptcy or reorganization is hereby authorized to make such payments to
Lender.
3.5 The benefits, remedies and rights provided or intended to be provided
hereby for Lender are in addition to and without prejudice to any rights,
benefits, remedies or security to which -Lender might otherwise be entitled.
3.6 Anything else contained herein to the contrary notwithstanding, Lender,
from time to time, without notice to Guarantor, may take all or any of the
following actions without in any manner affecting or impairing the liability of
Guarantor hereunder: (a) receive or accept a lien or a security interest in any
property to secure any of the Obligations or any obligation hereunder; (b)
receive or accept the primary or secondary liability of any party or parties, in
addition to Guarantor, with respect to any of the Obligations; (c) renew, extend
or otherwise change the time for payment or performance of the Obligations; (d)
release of compromise any liability of Guarantor hereunder or any liability of
any nature of any other party or parties with respect to the Obligations; (e)
exchange, enforce, waive, release and apply any Collateral and direct the order
or manner of sale thereof as Lender may in its discretion determine; (f) resort
to Guarantor for payment of any Obligations, whether or not Lender "hall proceed
against any other party primarily or secondarily liable on any of the
Obligations; and (g) agree to any amendment, modification or alteration of the
Loan Documents and/or exercise any of its rights conferred by the Loan Documents
or by law.
3.7 No delay on the part of Lender in the exercise of any right or remedy
shall operate as a waiver thereof, and no single or partial exercise by Lender
of any right or remedy shall preclude other or further exercise thereof or the
exercise of any other right or remedy; nor shall any modification or waiver of
any of the provisions of this Guaranty be binding on Lender except as expressly
set forth in writing, duly signed and delivered on behalf of Lender. No action
of Lender permitted hereunder shall in any way affect or impair the rights of
Lender and the obligations of Guarantor under this Guaranty.
3.8 If at any time all or any part of any payment theretofore applied by
Lender to any of the Obligations is or must be rescinded or returned by Lender
for any reason whatsoever (including, without limitation, the insolvency, or
bankruptcy of Borrower), such Obligations, for purposes of this Guaranty, to the
extent that such payment is or must be rescinded or returned, shall be deemed to
have never been performed; and this Guaranty shall continue to be effective or
be reinstated, as the case may be, as to such Obligations, all as though such
application by Lender had not been made.
-5-
3.9 Until all the Obligations have been paid and performed in full,
Guarantor shall have no right of subrogation and hereby waives any right to
participate in any of the collateral for the Obligations.
3.10 It is not necessary for Lender to inquire into the powers of Borrower
or its trustees or agents purporting to act on its behalf and the Obligations
are hereby guaranteed notwithstanding the lack of power or authority on the part
of Borrower or anyone acting on its behalf to incur the Obligations.
ARTICLE IV
GUARANTOR'S WARRANTIES
4.1 Guarantor represents and warrants to Lender that:
(a) Guarantor, Xxxxxxxx St. Laurent, Alexander St. Laurent and Georges
St. Laurent, III are the sole shareholders of the Borrower.
(b) The execution, delivery and performance by Guarantor of this
Guaranty does not and will not conflict with or contravene any law, rule,
regulation, judgment, order or decree of any government, governmental
instrumentality or court having jurisdiction over Guarantor or Guarantor's
activities or properties or conflict with, or result in any default under
any agreement or instrument of any kind to which Guarantor is a party or by
which Guarantor or Guarantor's properties may be bound or affected.
(c) Neither the execution and delivery by Guarantor of this Guaranty
nor the performance by Guarantor hereunder requires the consent, approval,
order or authorization of, or registration with, or the giving of notice to
any governmental authority, domestic or foreign.
(d) This Guaranty has been duly executed and delivered by Guarantor
and constitutes a legal, valid and binding obligation of Guarantor
enforceable against Guarantor in accordance with its terms.
(e) There is no action, litigation or other proceeding pending or, to
Guarantor's best knowledge, threatened against Guarantor before any court,
arbitrator or administrative agency which may have an adverse effect on
Guarantor's assets, businesses, or financial condition or which would
prevent, hinder or jeopardize Guarantor's performance under this Guaranty.
(f) Guarantor is fully familiar with all of the covenants, terms and
conditions of the Loan Documents and has reviewed such documents personally
and with counsel.
(g) Except as may be set forth in the written financial statements
presented by Guarantor to Lender, Guarantor is not a
-6-
party to any contract, agreement, indenture or instrument or subject to any
restriction which individually or in the aggregate require any obligations of
Guarantor to be performed as of the date hereof off as a result of executing
this Guaranty, which might adversely affect Guarantor's financial condition or
businesses, or which would in any way jeopardize the ability of Guarantor to
perform hereunder.
ARTICLE V
MISCELLANEOUS PROVISIONS
5.1 All the covenants, Stipulations, promises and agreement. contained in
this Guaranty by or on behalf of Guarantor are for the benefit of Lender, its
successors or assigns and shall bind Guarantor, Guarantor's heirs, executors,
personal representatives, successors and assigns. Lender, without notice of any
kind, may sell, assign or transfer the Loan Documents and/or the Collateral, and
in such event each and every immediate and successive assignee or transferee
thereof may be given the right by Lender to enforce this Guaranty in full, by
suit or otherwise, for its own benefit. Guarantor agrees for the benefit of any
such assignee or transferee that Guarantor's obligations hereunder shall not be
subject to any reductions, abatement, defense, set-off, counterclaim or
recoupment for any reason whatsoever.
5.2 All notices provided for herein shall be in writing and shall be (a)
personally delivered or delivered by courier Service (e.g., Federal Express) to
the party being notified if an individual, or (b) transmitted by certified or
registered mail, return receipt requested, addressed to all parties hereto at
the address designated for each party beside its Signature or at much other
address as the party who is to receive such notice may designate in writing.
Notice shall be deemed effective and received upon: (i) the date of receipt if
delivered by courier or by personal delivery, or (ii) seven (7) days after the
deposit of same in a letter box or other means provided for the posting of mail,
postage prepaid as provided above. Failure to give notice to persons designated
as also receiving copies of such notices shall not affect the validity of such
notice if proper notice is effected with respect to the primary party to receive
same.
5.3 Terms used and not otherwise defined herein shall have the same
meanings Given thereto in the Loan Documents.
5.4 This Guaranty has been delivered and accepted in Miami, Florida. This
Guaranty shall in all respects be governed by and construed and enforced in
accordance with the internal, substantive laws of the State of Florida.
Guarantor: (a) hereby irrevocably submits himself to the process and
jurisdiction of the courts of the State of Florida and to the venue in and for
the County of Dade, for the purpose of suit, action or other proceedings arising
out of or relating to this Guaranty or the subject matter hereof brought by
Lender; and (b) without limiting the generality of the
-7-
foregoing, hereby waive and agree not to assert by way of motion, defense or
otherwise in any such suit, action or proceeding any claim that Guarantor is not
personally subject to the jurisdiction of the above-named courts, that such
suit, action or proceeding is brought in an inconvenient forum or that the venue
of such suit, action or proceeding is improper.
5.5 Any provision of this Guaranty which is prohibited or unenforceable in
any jurisdiction shall, as to such Jurisdiction, be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining
provisions hereof, and no such prohibition or unenforceability shall invalidate
or render unenforceable such provision in any other jurisdiction.
5.6 None of the provisions of this Guaranty shall be limited to any
particular period of time, but rather all such provisions shall continue
absolutely, unconditionally and irrevocably until all the terms, covenants,
conditions and Obligations "et forth in the Loan Documents have been fully
performed by Borrower; and Guarantor shall not be released from any duty,
obligation or liability hereunder so long as there is any claim of Lender
against Borrower arising out of the Loan Documents.
5.7 This Agreement may be executed in any number of counterparts, each of
which shall have the force and effect of an original.
ARTICLE VI
TERMINATION
6.1 Upon an "IPO Event" Guarantor's liability hereunder "hall extinguish.
For purposes of this Section 6.1, the term "IPO Events means that Borrower has
an effective registration statement filed with the Securities Exchange
Commission for the public sale of voting common stock of Borrower.
IN WITNESS WHEREOF, the parties hereto have executed this Guaranty as of
the day and year first above written.
ADDRESS FOR NOTICES TO "GUARANTOR"
GUARANTOR:
0000 Xxxxxxxxx 00xx Xxxxxx
Xxxxx, Xxxxxxx 00000 - /s/ Georges St. Laurent, III
----------------------------
Attn: Georges St. Laurent Georges St. Laurent, III
-8-
ADDRESS FOR NOTICES TO LENDER: "LENDER"
000 Xxxxx Xxxxxxxxx
Xxxxx 000X
Xxxxxxx Xxxxxxx, Xxxxxx 00000
Attn:. Xxxxxxxx Xxxxx:
WITH A COPY TO:
Xxxxx X. Short, Esq.
Xxxxxxxx & Xxxxxx
0000 Xxxxx Xxxxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000-0000
STATE OF _______________ )
) ss
County of ______________ )
MERIS FINANCIAL INCORPORATED, a Nevada corporation
By:
Xxxxxxxx X. Xxxxx
President
The foregoing instrument was acknowledged before me this ____ day of __________,
1995, by Xxxxxxxx X. Xxxxx, the President of Meris Financial Incorporated, a
Nevada corporation, on behalf of the Corporation.
----------------------------------
Notary Public
My Commission Expires:
----------------------------------
STATE OF FLORIDA )
) ss
County of Dade )
The foregoing instrument was acknowledged before me this 28th day of
October, 1995, by GEORGES ST. LAURENT, III.
/s/ Xxxxx X. Xxxx
----------------------------------
Notary Public
My Commission Expires:
----------------------------------
OFFICIAL NOTARY SEAL
XXXXX X. XXXX
COMMISSION NUMBER
CC437527
MY COMMISSION EXP.
FEB. 7,1999
-9-
Exhibit "A"
Description of Collateral
personal guaranty of Xxxxxxx St. Laurent
personal guaranty of Georges St. Laurent III
corporate/limited liability company guarantee of the 3 Brazilian entities: (1)
VITECH-VITORIA TECNOLOGIA S.A., (2) BAHIATECH-BAHIA TECNOLOGIA LTDA., and (3)
MnLTISHOW-PRODUCTOS DE INFOKMATICA E TELECOMMUNICACOES LTDA. (collectively, the
"Brazilian Entities.)
collateral assignment of the beneficial rights under the following option
agreements:
a. option from Xxxxx Xxxxxxxxx Caldas in favor of Vitech for her 9 quotas
representing a 60% interest in Multishow Produtos de Informactica e
Telecomunicacoen Ltda. ("Multishow~).
b. option from Georges St. Laurent, III in favor of Vitech for all but
.011 of his quotas representing a right to purchase a 39.99% interest
in Multishow.
c. option from Georges St. Laurent, III in favor of Vitech for all of his
shares (ordinary and preferred, currently owned or acquired in the
future) in Vitech Vitoria Tecnologia S.A. (editorial).
d. option from Xxxxxxx St. Laurent in favor of Vitech for all of his
shares (ordinary and preferred, currently owned or acquired in the
future) in Vitoria.
e. option from Nicolas St. Laurent in favor of Vitech for his 51 quotas
representing a 51% interest in Bahiatech Bahia Tecnologia Ltda.
("BahiatechN).
f. option from Xxxxxxx St. Laurent in favor of Vitech for all but .01% of
his quotas representing a right to purchase a 48.99% interest in
Bahiatech.
g. option from Astra Com. Imp. Exp. Ltda. of its 79.180 shares of Class B
Preferred stock in Vitoria.
security interest in the fixed assets of the Brazilian Entities (excluding
inventory and accounts receivable)
second lien mortgage on real property Vitoria security interest in the fixed
assets of Borrower
-10-
pledge by Georges St. Laurent, XXX, Xxxxxxx St. Xxxxxxx, Xxxxxxxx St. Laurent
and Alexander St. Laurent (the "St. Xxxxxxxx") of their stockholdings in
Borrower
pledge by the St. Xxxxxxxx of their ownership interests in the Brazilian
Entities
pledge of keyman life insurance on the St. Xxxxxxxx
-11-
SECURITY AGREEMENT
THIS SECURITY AGREEMENT (the "Agreements) is made and entered into as of
the 28 day of October, 1995, by and between MERIS FINANCIAL INCORPORATED, a
Nevada corporation, whose address is 000 Xxxxx Xxxxxxxxx, Xxxxx 000X, Xxxxxxx
Xxxxxxx, Xxxxxx 00000 ("Secured Party"), and VITECH AMERICA, INC., a Florida
corporation, whose address is 0000 Xxxxxxxxx 00xx Xxxxxx, Xxxxx, Xxxxxxx 00000 (
"Debtor" ) .
RECITALS
A. Contemporaneously with this Security Agreement (this "Agreements),
Secured Party is making a loan to Debtor in the original principal amount of Two
Million Dollar (62,000,000.00) (the "Loan"), which loan is evidenced by a
Promissory Note (the "Note") dated of even date herewith executed by Borrower to
the order of Lender.
B. Secured Party desires to secure Debtor's obligations under the Note
pursuant to the terms and conditions of this Agreement.
AGREEMENT:
For good and valuable consideration the receipt and sufficiency of which
are hereby acknowledged, Secured Party and Debtor hereby agree as follows:
1. Definitions.
1.1 "Collateral" means and includes all of Debtor's right, title and
interest in and to the property described on the attached Exhibit "A".
1.2 "Loan Documents" means all of those instruments and documents
evidencing or securing the Loan.
1.3 "Obligations" means and includes the Loan, any additional loans as may
hereafter be made by Secured Party to Debtor, and all liabilities, obligations,
covenants and duties of Debtor to Secured Party of every kind, nature and
description whether or not arising out of the Loan Documents, or by oral
agreement or operation of law and whether or not for the payment of money,
direct or indirect, absolute or contingent, due or to become due, liquidated or
unliquidated, now existing or hereafter arising, including, without limitation,
all interest and Secured Party's Costs which Debtor is required to pay or
reimburse to Secured Party by the Loan Documents, by law or otherwise.
1.4 "Secured Party's Costs" means and includes: all filing, recording, and
search fees, all reasonable costs and expenses incurred by Secured Party in any
manner or way with
respect to Secured Party's enforcement of its rights and remedies under this
Agreement, or defending this Agreement or its security interest in the
Collateral; expenses in connection with selling, preparing for sale and
advertising to sell the Collateral, whether or not Whale is consummated; and all
reasonable attorney'= fees and expenses incurred by Secured Party as provided
for in this Agreement.
1.5 Any and all terms used in this Agreement shall be construed and defined
in accordance with the meaning and definition of such terms under and pursuant
to the Florida Uniform Commercial Code, as amended from time to time
(hereinafter referred to as the "Code").
2. Creation and Perfection of Security Interest.
2.1 Debtor does hereby grant to Secured Party a security interest in the
Collateral to secure the prompt payment and performance by Debtor of the
Obligations. Debtor doe. hereby agree that until all Obligations of Debtor to
Secured Party have been fully paid and satisfied, Secured Party shall have a
perfected security interest in the Collateral.
2.2 Debtor shall, at the request of Secured Party, execute from time to
time all financing statements, continuation statements, assignments, affidavits,
reports, notices, letters of authority and any other documents that Secured
Party may request, in form satisfactory to Secured Party, to perfect and
maintain Secured Party's security interest in the Collateral and in order to
fully consummate all of the transactions contemplated under the Loan Documents.
Debtor hereby irrevocably makes, constitutes and appoints Secured Party (and any
agents designated by Secured Party) as Debtors true and lawful attorney with
power to sign the name of Debtor on any financing statements,
continuation-statements, security agreements, assignments, affidavits, letters
of authority, notices or other similar documents which must be executed and/or
filed in order to perfect or continue the perfection of Secured Party's security
interest in the Collateral.
2.3 Debtor authorizes Secured Party and Secured Party shall have the right
at any time or times to verify any matter relating to the Collateral in the name
of Debtor or Secured Party.
2.4 Debtor does hereby irrevocably designate, make, constitute and appoint
Secured Party, and any agents designated by Secured Party, as Debtor's true and
lawful attorney, with the power to be exercised by Secured Party as it may, in
its sole discretion, determine, in Debtor's or Secured Party's name and at
Debtor's expense, upon the occurrence of an event of default under this
Agreement, to sign Debtor's name on any document relating to the Collateral.
Secured Party shall not be obligated to do any of the acts or exercise any of
the powers hereinabove authorized, but, if
2
Secured Party elects to do any such act or exercise any of the foregoing powers,
it may do so in any manner or means as it may determine, and it shall not be
liable to Debtor for any error in judgment or mistake of fact or law, excepting
willful misconduct or bad faith. This power being coupled with an interest, is
irrevocable until all Obligations of Debtor to Secured Party are fully paid and
satisfied. All acts by or on behalf of Secured Party pursuant hereto are hereby
ratified and approved by Debtor.
3. Rights to the Collateral.
3.1 If the Collateral or any part thereof, is sold, transferred, exchanged
or otherwise disposed of, the security interest of Secured Party shall extend to
the proceeds payable to Debtor and all such amounts shall be payable directly to
Secured Party up to the amount of the Obligations, including all accrued
interest and any other charges payable with respect to the Obligations. Nothing
contained in this Agreement shall be construed to authorize a sale, exchange or
any other disposition of the Collateral.
3.2 Notwithstanding the preceding, so long as Debtor is not in default
hereunder, Debtor shall have the right to sell inventory in the ordinary course
of business and to use and consume any materials or supplies, the use and
consumption of which is necessary in order to carry on Debtor's business. The
security interest granted hereunder shall attach to all proceeds of all sales or
other dispositions of the inventory.
d. Debtor's Representations.
4.1 Until all Obligations of Debtor to Secured Party have been fully paid
and satisfied, Debtor does hereby warrant and represent that:
a. It is corporation, duly organized, validly existing and in
good standing under the laws of the State of Florida.
b. The address stated herein is the principal place of business
of Debtor and the place where Debtor maintains, and will continue to
maintain, all books and records of Debtor, as well as all Collateral.
Debtor "hall not remove any Collateral from the address stated herein
unless Debtor notifies Secured Party in writing prior to its removal
and Secured Party consents in writing in advance of its removal to
another location.
c. It is the true and lawful owner of the Collateral and has the
right and power and is duly authorized to grant a security interest
therein to Secured Party.
3
d. The execution, delivery and performance hereof does not
constitute a default under any indenture, agreement or undertaking to
which Debtor is now or hereafter a party or by which it is or will be
bound.
e. There are no actions or proceedings pending by or against
Debtor or in any court or administrative agency and Debtor has no
knowledge of any pending, threatened or imminent litigation,
governmental investigation or claim, complaint, action or prosecution
involving Debtor and if any of the foregoing arise during the term of
this Agreement, Debtor shall immediately notify Secured Party in
writing with respect thereto.
f. With respect to all Collateral, Secured Party's security
interest therein is now and shall hereafter at all times constitute a
perfected, chaste, and first security interest in the Collateral and
in not now and will not hereafter become Subordinate or junior to the
security interest, lien, encumbrance or claim of any person. Other
than the Security interest granted herein, Debtor is the sole owner of
the Collateral and the Collateral is held by Debtor free from any
adverse claim of ownership, lien, security interest or other
encumbrance and Debtor ~hall, at it" own expense, defend the
Collateral and the proceeds thereof against any claim or demand of
another person at any time claiming an interest in the Collateral or
proceeds.
g. Except as expressly permitted in this Agreement, Debtor agrees
that it will not sell, assign, transfer, encumber, grant any other
security interest in, or dispose of the Collateral in any manner
whatsoever, or any portion thereof, or any interest therein, or
attempt to do so, without the prior written consent of Secured Party,
which may be given or withheld in its sole and complete discretion.
many attempt to do so shall be void and of no effect whatsoever, shall
be a default hereunder. Debtor further agrees not to do any act which
shall in any manner impair or invalidate the security interest created
hereunder.
h. All representations and warranties made to Secured Party in
connection with this Agreement are true and correct as of the date
hereof and all other information furnished to Secured Party at any
time by or on behalf of Debtor was and will be when furnished complete
and correct in all material respects.
4.2 Each warranty, representation and agreement contained in this Agreement
shall be conclusively presumed to have been relied upon by Secured Party
regardless of any investigation made or information possessed by Secured Party.
4.3 In the event Debtor at any time becomes aware of a breach of any of the
foregoing representation. or warranties, Debtor shall forthwith give written
notice thereof to Secured Party.
4
5. Indemnification. Debtor agrees to indemnify Secured Party for, and save
it harmless from, any and all liability arising from any obligation that might
accrue to the Secured Party from this Agreement, and from any claim or action
disputing Secured Party's interest in the Collateral. This Agreement shall not
in any way constitute an assumption by Secured Party of any obligations or
liability of Debtor with respect to the Collateral.
6. Preservation and Maintenance of the Collateral. Debtor shall, at its own
expense, (i) keep and maintain the Collateral in good condition and repair; (ii)
keep it free from all liens, encumbrances and security interests (other than
those created or expressly permitted by this Agreement); and (iii) defend it
against all claims and legal proceedings by persons other than Secured Party.
Debtor shall not (a) commit or permit waste, (b) remove any Collateral from its
present location, (c) use any of the Collateral in violation of any applicable
law, regulation or policy of insurance, or (d) permit the Collateral to become a
fixture or an accession, except as specifically authorized in this Agreement.
Debtor shall immediately notify Secured Party in writing of any loss or damage
to the Collateral.
7. Taxes and Insurance. Debtor shall pay when due all taxes or licenses
imposed by any lawful authority upon the Collateral and will keep the Collateral
insured against such risks, in such amounts and with such insurers as Secured
Party may, from time to time, require. Debtor agrees to deliver to Secured Party
a loss payable endorsement indicating that the policy is payable to Secured
Party in the event of loss and providing for thirty (30) days cancellation
notice to Secured Party. Debtor assigns to Secured Party the proceeds of all
such insurance and authorizes Secured Party, as its attorney in fact, to adjust
or settle any claim under said policy, or cancel the same, and endorse the name
of Debtor on any instrument for said proceeds or refund and, at the option of
Secured Party, to apply said proceeds to any Obligations of Debtor to Secured
Party or to the restoration of the Collateral returning any excess to Debtor. In
the event Debtor fails to (i) pay any taxes when due; (ii) procure and pay for
the required insurance; (iii) discharge any prior lien, encumbrance or claim, or
(iv) take any other action as required by this Agreement; then in such event
Secured Party may, at its option, advance any sum necessary for the protection
or preservation of the Collateral or its security interest therein, and the
amount no paid or incurred by Secured Party, together with interest thereon at
the rate of eighteen percent (18%) per annum shall become due and payable on
demand by Debtor to Secured Party and shall be secured by the Collateral.
8. Inspection of Collateral. Secured Party shall at all reasonable times,
and from time to time, have the right, by or through any of its officers,
agents, employees or attorneys, to enter upon Debtor's premises where it
conducts business or such
5
other place where the Collateral is located (collectively, the "Premises"), for
the purpose of inspecting, examining or taking possession of the Collateral.
Upon request of Secured Party, a physical listing of the Collateral shall,
without cost to Secured Party, be-prepared by Debtor and delivered to Secured
Party within twenty (20) days following the request.
9. Environmental Laws. Debtor shall maintain the Premises, the operations
conducted thereon and the uses made thereof, and the other Collateral in
compliance with all applicable federal, state or local statute, ordinance, code,
order, requirement, law, rule or regulation relating to environmental,
occupational health or safety or other matters. Without limiting the generality
of the foregoing, Debtor shall generate, store, dispose of and release hazardous
waste, hazardous substances and/or oil on any of the Premises only in full
compliance with all applicable federal, state and local laws, rules, regulations
or ordinances, and Debtor shall permit no generation, storage, disposal or
release of such waste, substances or oil on the Premises by any other person.
For the purposes of this paragraph, "hazardous waste" and "hazardous substance"
shall have the meanings set forth in the Resource Conservation and Recovery Act,
42 U.S.C. (SS) 6901, et seq. (the "Conservation Act"), and the Comprehensive
Environmental Response, Compensation, and Liability Act, 42 U.S.C. SS 9601, et
seq. ("CERCLA"), as such statutes may be amended, or as defined in any federal
or state regulations adopted pursuant to or in furtherance of such Acts. "Oil"
shall be defined as petroleum, or any petroleum products, in any form. Neither
the Collateral nor the Premises shall be used at any time so as to cause a
violation of or to give rise to a removal or restoration obligation under any
statute, ordinance, order, decree or under the common law of any state, federal,
municipal or other governmental body or agency having jurisdiction over the
Premises or the Collateral including, without limitation, the Conservation Act
and CERCLA or any similar law, rule, regulation, order, judgment or decree; nor
shall Debtor permit any such violation or obligation to be created by the
removal of any hazardous waste, hazardous substance and/or oil from the Premises
by the disposition of such-removed hazardous waste, hazardous substance and/or
oil or by reason of the discontinuance of operations of any business conducted
on the Premises. Debtor shall indemnity and hold Secured Party harmless from and
against all liabilities, obligations, losses, damages, penalties, claims,
actions, suits, costs, charges and expenses, including reasonable attorney's
fees which may be imposed upon or incurred by or asserted against Secured Party,
the Collateral or the Premises arising from Debtor's breach or alleged breach of
the covenants contained herein.
10. Authority of secured Party to Perform for Debtor. If Debtor fails to
act as required by this Agreement or the Loan Documents, Secured Party is
authorized, in Debtor's name or otherwise, to take any such action including
without limitation
6
signing Debtor's name or paying any amount so required, and the cost shall be
one of the Obligations secured by this Agreement and shall be payable by Debtor
upon demand with interest at the rate of eighteen percent (18%) per annum from
the date of payment by Secured Party.
11. Events of Default. The happening of any one or more of the following
events (and the expiration of any applicable cure period) shall constitute an
Event of Default hereunder:
11.1 Debtor fails to pay when due and payable or declared due and payable,
any of Debtor's Obligations (whether of principal, interest, reimbursement of
Secured Party's Costs, or otherwise):
11.2 Debtor fails or neglects to perform, keep or observe any material
term, provision, condition, or covenant contained in this Agreement, or any
other present or future agreement between Debtor and Secured Party;
11.3 The filing of an involuntary petition under the United States
Bankruptcy Code or any other federal or state bankruptcy statute, as now in
effect or as hereafter amended, against Debtor, or if Debtor shall allow the
appointment of a receiver, trustee, conservator or liquidator of all or any part
of the Collateral, or if any of the Collateral be levied upon by virtue of any
execution, attachment, tax levy or other writ, or if liens be filed against the
Collateral, and such involuntary petition, appointment, levy, or filing, as the
case may be, shall not be released, stayed, bonded or insured against in favor
of Secured Party, satisfied or vacated within sixty (60) days after the
occurrence thereof;
11.4 The abandonment of all or any part of the Collateral;
11.5 The breach of any warranty, representation or certification given in
connection herewith, or in connection with any of the Loan Documents;
11.6 The filing by Debtor of a petition under the United States Bankruptcy
Code or any other federal or state bankruptcy statute, as now in effect or as
hereafter amended, or if Debtor shall make an assignment for the benefit of its
creditors or be unable, whether or not admitted, to pay its debts as they become
due:
11.7 The filing of any foreclosure or forfeiture proceeding with respect to
any other lien on the Collateral, whether junior or senior to this Agreement,
which foreclosure or forfeiture proceeding is not dismissed or released within
thirty (30) days;
7
11.8 The transfer of the Collateral, voluntarily or involuntarily, in
violation of the terms of this Agreement:
ll.9 The failure of Debtor to pay, before delinquent, any taxed,
assessments, fees, charges, expenses or encumbrances created, levied, or
assessed upon or relating to the Collateral (without any requirement for notice
by Secured Party that such payment is due); and
11.10 Any repudiation by Debtor of any Obligation.
12. Default Remedies. In the event of a default by Debtor under this
Agreement, Secured Party may, at its election, without notice of its election
and without demand upon Debtor or any guarantor, do any one or more of the
following, all of which are authorized by Debtor:
12.1 Declare Debtor's Obligations immediately due and payable.
12.2 Exercise any and all of the rights accruing to a secured party under
the Code and any other applicable law.
12.3 Advance any sum or take such action as Secured Party considers
necessary or reasonable to protect and preserve its security interest in the
Collateral.
12.4 Secured Party may, for the account of Debtor and at Debtor's expense:
(a) operate, use, consume, rent, sell, or dispose of the Collateral as Secured
Party deems appropriate for the purpose of performing any and all of the
Obligations secured by this Agreement; (b) enter into any agreement, compromise
or settlement including the settlement of the insurance claims, which Secured
Party may deem desirable or proper with respect to any or all of the Collateral;
(c) endorse, deliver evidences of title for, receive, enforce and collect by
legal action or otherwise, any or all indebtedness and obligations now or
hereafter owed to Debtor in connection with or on account of any or all of the
Collateral; and (d) perform any of the obligations secured by thin Agreement.
12.5 Secured Party shall have the immediate right and Debtor authorizes and
empowers Secured Party or its legal representatives, (without notice or process
of law), to enter upon the Premises and repossess the Collateral. In addition,
Secured Party may require Debtor to assemble the Collateral and make it
available to Secured Party at a place so designated by Secured Party. Further,
Secured Party may remove the Collateral from the Premises and then sell or cause
to be sold all or any part of the Collateral at such time and place as shall be
determined by Secured Party, at public or private sale, at such price as Secured
Party shall deem acceptable, for cash, on credit or future delivery, without
demand of performance or advertisement and after ten (10)
8
days prior written notice to Debtor of its intention to sell, which notice shall
contain the time and place of sale or the time after which sale or other
disposition is to be made and which period shall constitute reasonable notice
under the Uniform Commercial Code. Such sale may be conducted by Secured Party,
or any of its agents, and Secured Party may become the purchaser at any public
sale of the Collateral. Any such public sale shall be held at such place in Dade
County, Florida is located as Secured Party may fix in the notice of sale.
Secured Party shall not be obligated to make any such sale pursuant to any such
notice. Secured Party may, without notice or publication, adjourn any public
sale or cause the same to be adjourned from time to time by announcement at the
time and place at which the same may be so adjourned. Upon any such sale,
Secured Party shall have the right to deliver, assign and transfer to the
purchaser thereof the Collateral so sold. Each purchaser at any such sale shall
hold the property sold, absolutely free from any claim or right of any kind,
including any equity or right of redemption, stay or appraisement which Debtor
has or may have under any rule, law or statute now existing or hereafter
adopted. Secured Party may be the purchaser of any or all of the Collateral sold
and thereafter hold the same, absolutely free from any claim or right of Debtor.
The proceeds of such sale shall first be applied to the payment of any and
all expenses incurred or paid by Secured Party in preserving, protecting,
retaking, holding, preparing, selling, transferring or delivering the
Collateral, including a reasonable attorney's fee, then to the payment of all
Obligations of Debtor hereunder (in whatever order Secured Party elects), paying
over any excess to Debtor who shall remain liable for any deficiency.
12.6 Debtor hereby constitutes and appoints Secured Party and its agents
its true and lawful attorney-in-fact with full power to act for Debtor; to
endorse Debtor's name upon any check, note, draft, money order or other evidence
of payment which may come into the possession of Secured Party as proceeds of
the Collateral; to sign Debtor's name on any other instrument or document and to
do all acts and things necessary or appropriate to protect, preserve, collect or
realize upon Secured Party's security interest hereunder and carry out this
Agreement. Debtor hereby ratifies and approves all such acts of Secured Party
and waives notice of presentment, protest and non-payment of any such instrument
so endorsed. This power, being coupled with an interest, shall be irrevocable no
long as any of the Obligations remains unpaid or outstanding.
12.7 Secured Party has no duty to protect, insure or realize upon the
Collateral. Debtor releases Secured Party from any liability for any act or
omission relating to the Loan, the Collateral or this Agreement, except secured
Party's willful misconduct.
9
12.8 Debtor shall pay all Secured Party's Costs incurred in connection with
Secured Party's enforcement and exercise of any of its rights and remedies as
herein provided, whether or not suit is commenced by Secured Party.
12.9 Secured Party's rights and remedies under this Agreement and all other
agreements shall be cumulative and may be exercised simultaneously or
successively, in such order as Secured Party shall determine. In addition,
Secured Party shall have all other rights and remedies not inconsistent herewith
as provided by law or in equity. No exercise by Secured Party of one right or
remedy shall be deemed an election, and no waiver by Secured Party of any
default on Debtor's part shall be deemed a continuing waiver. No delay by
Secured Party shall constitute a waiver, election or acquiescence by it.
13. Duration of Agreement. This Agreement and the security interest created
hereby shall continue until all Obligations of Debtor to Secured Party are
completely satisfied and discharged.
14. Uniform Commercial Code. It is the intention of the parties hereto that
this Security Agreement is entered into pursuant to the provisions of the
Florida Uniform Commercial Code Secured Transactions. Any provisions of said
Code not specifically included herein shall be deemed a part hereof as if set
forth in their entirety and any provisions of this Agreement that might in any
manner be in conflict with any provision of "aid Code shall be deemed superseded
by said Code and to that extent the provisions of this Agreement shall be
severable and the invalidity of one shall not invalidate another.
15. Financing statements. Debtor agrees to execute and file a WCC-1
Financing Statement and to execute and deliver any and all additional
instruments and documents required to perfect the Secured Party's security
interest in the Collateral.
16. 8ucceasore. This Agreement shall be binding upon the parties, their
executors, administrators, legal and personal representatives, successors and
assigns; however, Debtor may not assign this Agreement or any rights hereunder,
without Secured Party's prior written consent and any assignment in violation of
this Section 16 shall be absolutely void. No consent to any assignment by
Secured Party shall release Debtor or any guarantor of its Obligations to
Secured Party. Secured Party may assign this Agreement and its rights and duties
hereunder.
17. Governing Law. This Agreement and the obligations which it secures and
all rights and liabilities of the parties shall be governed as to validity,
interpretation, enforcement and effect by the laws of the State of Florida.
10
18. Notices. All notices provided for herein shall be in writing and shall
be (a) personally delivered or delivered by courier service (e.g., Federal
Express) to the party being notified if an individual, or (b) transmitted by
certified or registered mail, reborn receipt requested, addressed
If to a Meris: 000 Xxxxx Xxxxxxxxx
Xxxxx 000X
Xxxxxxx Xxxxxxx, Xxxxxx 00000
If to Vitech: 0000 Xxxxxxxxx 00xx Xxxxxx
Xxxxx, Xxxxxxx 00000
or at such other address as the party who is to receive such notice may
designate in writing. Notice shall be deemed effective and received upon: (i)
the date of receipt if delivered by courier or by personal delivery, or (ii)
seven (7) days after the deposit of same in a letter box or other means provided
for the posting of mail, postage prepaid as provided above.
19. Time is of the Essence. Time is of the essence of this Agreement and
all terms and provisions hereof.
20. Attorneys' Fees. Should Secure Party find it necessary to employ legal
counsel and bring an action at law or in equity to enforce any of the terms,
covenants or conditions of this Agreement, or because of any breach or default
hereunder, Secured Party shall be entitled to recover from Debtor all reasonable
attorneys' fees incurred by Secured Party and, in the event a judgment is
obtained, all such attorneys' fees shall be determined by the court and not by
jury and shall be included in such judgment.
21. Captions. The titles and headings in this Agreement are for convenience
only and shall in no way affect, limit or control the meaning or application of
any article or section hereof.
22. Counterparts. This Agreement may be executed in one or more
counterparts, each of which may be executed by one of the parties hereto, with
the same force and effect as though all the parties executing such counterparts
had executed but one instrument.
23. Waivers by Debtor. Debtor waives demand, protest, notice of protest,
notice of default or dishonor, notice of payment and nonpayment, notice of any
default, nonpayment at maturity, release, compromise, settlement, extension or
renewal of any or all commercial paper, accounts, documents, instruments,
chattel paper and guaranties at any time held by Secured Party on which Debtor
may in any way be liable.
11
IN WITNESS WHEREOF, the undersigned have executed this Security
Agreement as of the date first set forth above.
DEBTOR:
VITECH AMERICA, INC., a Florida
corporation
By: /s/ Xxxxxxx X. St. Laurent
----------------------------------
Xxxxxxx X. St. Laurent
President
SECURED PARTY:
MERIS FINANCIAL INCORPORATED, a
Nevada corporation
By: ___________________________
Xxxxxxxx X. Xxxxx
President
12
EXHIBIT "A"
COLLATERAL DESCRIPTION
The collateral referred to in this Security Agreement consists of all of
Debtor's right, title and interest in and to the following described property,
together with any other personal property and equipment, of whatever nature or
kind, now owned or subsequently acquired by Debtor, including all additions,
substitutions, accessions, repairs, replacements and additions thereto
(including the proceeds of sales thereof), whether installed, affixed, attached,
kept or situated on, to or at the Premises (as that term is defined in this
Security Agreement) and improvements, or in the construction thereof, and such
collateral includes but is not limited to:
1. All construction materials, supplies, lumber and all other materials or
equipment delivered to any Premises for incorporation or use in any
construction at any time being conducted thereon.
2. All fixtures, fittings, furniture, furnishings, appliances, apparatus,
equipment, and machinery, including without limitation, all gas and
electric fixtures, radiators, heaters, engines and machinery, boilers,
ranges, ovens, elevators and motors, bathtubs, sinks, water closets,
basins, pipes, faucets and other air conditioning, plumbing and heating
fixtures, mirrors, mantles, refrigerating plant, refrigerators, iceboxes,
dishwashers, carpeting, furniture, laundry equipment, cooking apparatus and
appurtenances now or hereafter delivered to the Premises and intended to be
installed therein; all other fixtures and personal property of Debtor of
whatever kind and nature at present.
3. All of Debtor's interest in:
A. All existing and future leases, rents, issues and profits and all
security deposits from tenants, lessees or other space occupiers;
B. All policies of insurance and all proceeds, loss payable clauses and
premium refunds and all claims relating thereto;
C. All operating or management or supervision agreements;
D. All reciprocal easement agreements;
E. All contracts with builders and/or material suppliers; all plans and
specifications;
13
F. Any balance of the deposit account or accounts of Debtor with Secured
Party existing from time to time and all property of Debtor coming
into the hands of or under the control of Secured Party in any way or
in transit to or from secured Party;
G. Any and all awards or payments including interest thereon which may be
made with respect to the Premises as a result of the exercise of the
right of eminent domain, the alteration of any streets or roads and
any other damage or injury to or decrease in the value of the
Premises;
H. All building and use permits issued by any governmental agency;
I. All income, rents, issues, profits and proceeds from the Premises,
subject however to the right, power and authority conferred upon
Debtor and/or Secured Party to collect and apply such income, rents,
issues, profit" and proceeds as set forth in that certain Deed of
Trust and Assignment of Rents and that certain Assignment of Rents and
Leases between Debtor and Secured Party of even date herewith:
J. All of the estate, interest or other claim or demand which Debtor now
has or may hereafter acquire in and to the property described herein,
including without limitation all deposits made with or other security
given to utility companies by Debtor with respect to the Premises and
the improvements thereon and all advance payments of insurance
premiums made by Debtor with respect thereto and claims or demands
relating to insurance:
K. Insofar as permitted.. by applicable law, all licenses, including but
not limited to any operating license, contracts, management contracts
or agreements, franchise agreements, permits, authorizations or
certificates required or used in connection with the ownership of or
in the operation or maintenance of the Premises and the collateral
described herein and any improvements constructed thereon; and
L. All damages, royalties and revenue of every kind, nature and
description whatsoever that Debtor may be entitled to receive from any
person or entity owning or having or hereafter acquiring a right to
the oil, gas or mineral rights and reservations regarding the
Premises, with the right of Secured Party to receive and apply the
same to the indebtedness secured hereby either before or after any
default hereunder, and Secured Party may demand, xxx for and recover
any such payments but shall not be required to do so.
14
M. All substitutions, renewals, improvements, attachments, accessions,
additions and replacements to any of the foregoing (whether stated in
this sentence or in the immediately preceding sentence);
N. All collections, proceeds, insurance proceeds and products of any of
the foregoing (whether stated in this sentence or in the immediately
preceding sentence), including, without limitation, proceeds of any
voluntary or involuntary disposition or claim respecting any part
thereof (pursuant to judgment, condemnation award or otherwise);
O. All documents, instruments, general intangibles, chattel paper and
accounts which may arise from the sale or disposition of any of the
foregoing (whether stated in this sentence or in the immediately
preceding sentence);
P. All guaranties of and security for any of the foregoing;
Q. All estates, rights, appurtenances, privileges, water and water
rights, water right applications, shares of stock evidencing water
rights, flumes, ditches, minerals and mineral rights "hereunto
appertaining, which Debtor may now have or hereafter acquire;
R. Any award, payments, damages in consideration which may be paid or
become due by reason of the taking by eminent domain of the whole or
any part of the Premises, or any rights appurtenant thereto, including
any award for change of grade of streets; and
S. All books and records relating to any of the foregoing.
4. All proceeds of the conversion, voluntary or involuntary, of any of the
foregoing into cash or liquidated claims.
15
QUOTAS PLEDGE AGREEMENT
Effective Date: __, October _, 1995
Pledgor: Vitech America, Inc.
0000 Xxxxxxxxx 00xx Xxxxxx
Xxxxx, Xxxxxxx 00000
Pledgee: Meris Financial Incorporated, a Nevada corporation
000 Xxxxx Xxxxxxxxx
Xxxxx 000X
Incline v$11age, Nevada 89451
Recitals:
A. Contemporaneously with the execution of this Quote Pledge Agreement
(this "Agreement"), Pledgee is making a loan to Pledgor in the original
principal amount or Two Million Dollar ($2,000,000) (the "Loan"), Which loan is
evidenced by a Promissory Note dated of even date herewith executed by Pledgor
to the order of Pledgee. All documents and instruments evidencing or Flouring
the Loan are hereinafter referred to as the Loan Documents.
B. Pledgor is the record and beneficial owners of quotes in BAHIATECH-
BAHIATECH TECNOLOGIA LTDA., a limited liability company formed under the laws of
Bahia, Brazil ("Bahlatoch"], representing 99% ownership interest in Behiatech
(the "quotas").
C. To induce Pledgee to make the Loan, Xxxxxxx has agreed to pledge to
Pledgee all of its right, title and interest in and to the Quotas to secure
Pledgor's performance under the Loan Documents.
Agreements:
For good and valuable consideration, the receipt end sufficiency of which
are hereby acknowledged, Pledgor and Pledges do hereby agree as follows:
1. Pledge of Quotas. As security for the payment in full of all amounts
which may at any tine be or become payable by Xxxxxxx under the Loan Document.,
Xxxxxxx does hereby pledge to Pledgee, for the benefit Pledgee and its
succeasore and assigns, a security interest in all of the Quotes and in all
other ownership interest now or hereafter issued to Pledgor or issuable to
Pledgor upon the exercise of any outstanding option, warrant, contract, grunt or
arrangement to issue or sell any beneficial or legal ownership interest in
Bahiatech, and all cash, securities and its property distributed in exchange or
substitution for or with respect to thereto and all proceeds of the foregoing
(collectively, the "Pledged Collateral").
2. Perfection of Security Interest: Delivery of Pledged Collateral.
(a) Pledgor agrees to execute any and all instruments reasonably deemed
necessary by Pledgee in order to perfect the pledge of the Pledge Collateral and
the grant of the security interest therein under this Agreement. Pledgor hereby
tenders to Pledgee the certificate evidencing the Quotas and Pledgee covenants
to hold the same in accordance with the terms and provisions of this Agreement.
Pledgor covenants and agrees to tender a11 certificates now or in the future
evidencing a beneficial or legal ownership interest or right in Behiatech owned
by Pledgor.
(b) Pledgor hereby represents and warrants that a11 action required to be
taken by any person to transfer title to the Quotas to Pledgee and/or its
nominee, other than registration of Pledgee and/or its nominee as owner of the
Quota in Bahiatech's records, will be taken and covenants that, until this
Agreement is terminated in accordance with Section 8 hereof, no such action
shall be rescinded or superseded or otherwise cease to remain in full force and
effect.
(c) If Pledgor fails to make payment pursuant to the terms of the Loan
Documents, shall fail to comply with any of the terms and conditions of the Loan
Documents, or if Xxxxxxx shall breach one of its covenants contained in Section
3 hereof (collectively, an "Event of Default"), Pledgee shall give Pledgor ten
(10) days' prior written notice of such Event of Default. If Pledgor fails to
cure such Event of Default within the above referenced ten day period, then
Pledgee shall have the right, without further notice to or demand of Xxxxxxx,
all of which are hereby waived: (i) to cause its registration as the owner of
the Quotas in the records of Bahiatech (and Pledgor will cooperate fully with
Pledgor in causing such registration to be effective and (ii) to otherwise
foreclose on the Pledged Collateral.
3. Covenants. Xxxxxxx covenants to Pledgee that:
(a) All Quotas are, and any additional ownership interest in Bahiatech
acquired by Pledgor will be, duly authorized and validly issued and shall b
fully paid and non-assesable.
(b) Pledgor has record and beneficial ownership of all of the Quotas, free
and clear of all liens, security interests, options and other encumbrances
except for the security interest created by this Agreement.
(c) Pledgor will not sell or offer to sell or otherwise transfer, encumber
the Quotes or any interest thereon, without the prior written consent of
Pledges, which consent say be withheld by Pledged in its sole and absolute
discretion. Pledgor wi11 not permit the Quotas to be Attached or replevined.
-2-
(d) xxxxxxx has the right, title, power and authority to convey the Pledged
Collateral and enter into this Agreement.
(e) Pledgor will defend the Pledged Collateral against all claim and
demands or all persons at any time claiming the same or any interests therein.
(f) The execution and delivery of this Agreement will not violate any 1aw
or agreement to which Xxxxxxx is a party.
4. Dividends and Distributions. So long as this Agreement is in effect, and
unless otherwise agreed to between Pledgor and P1edgee, P1edgor shall pay over
to Pledgee any and all dividends, returns of capita1 or other distributions made
on or in respect of the Pledged Collateral and a11 cash received by Pledgor with
respect to any Pledged Collateral.
5. Voting Rights. So long as no event constituting an Event or Default, and
no event which, with the passage of time or the giving of notice or both, would
constitute an Event of Default, has occurred and is continuing, Pledgor shall be
entitled to exercise any and all voting rights relating or pertaining to the
Quotas held by it or any part thereof for any purpose not inconsistent with the
term of this Agreement.
6. Remedies.
(a) If an event constituting an Event of Default, or an event which, with
the passage of time or the giving of notice of both, would constitute an Event
of Default, has occurred and is continuing, all rights of Pledgor to exercise
voting rights pursuant to Section 5 shall cease and all such rights shall,
without prior notice to or demand of Pledgor or any other party (all of which
are hereby waived), thereupon becomes vested in Pledgee.
(b) If an Event of Default shall occur and be continuing, then Pledgee
shall have, in addition to the right to exercise any rights of a secured party
upon default under the law of the state of Florida, the right in its discretion,
upon notice to Pledgor, to se11 the remaining Pledged Collateral, or any part
thereof, at any public or private sale, at which Pledgee may be purchaser, upon
such terms as Pledgee shall deem appropriate. Any purchaser at any such sale
shall hold the property sold absolutely free from any claim or right on the part
of Pledgor and Pledgor hereby waive all rights with respect to or in connection
with the sale of the Pledged Collateral which it now has or may in the future
have under any applicable law. As an alternative to exercising the power of sale
herein conferred upon it, Pledgee may institute an action or proceeding in any
court or courts of competent Jurisdiction to foreclosure on and to sell the
Pledged
-3-
Collateral, or any part thereof, pursuant to a judgment, order or decree or such
court or courts.
(c) The proceeds of any sale of the Pledged Collateral pursuant to
paragraph (b) above shall be applied to amounts due under the Loan Documents,
including without limitation, the costs and expenses of any foreclosure action
or proceeding and of such sale.
7. Further Assurances. P1edgor will do such further acts and things, and
execute and deliver such additional conveyances, assignments, agreements and
instruments, as Pledgee may at any time reasonably request in connection with
the administration or enforcement of this Agreement or related to the Pledged
Collateral or any part thereof or in order to assure and confirm unto Pledgee
its rights, powers and remedies hereunder.
8. Termination. This Agreement and any security interest in the Pledged
Collateral created hereby shall terminate at such time as all obligations of
Pledgor under the Loan Documents shall have been fully satisfied, at which time
Pledgee sha11 release its security interest in, and shall redeliver to Pledgor
to the extent such Pledged Collateral has been delivered to Pledgee, such
portion of the Pledged Collateral as has not been sold or otherwise applied by
or on behalf of Pledgee in satisfaction of the obligations of Pledgor under the
Loan Documents and Pledgee shall promptly execute and deliver to Xxxxxxx such
certificates, instruments of the transfer and other documents as may be
necessary in connection therewith.
9. Miscellaneous.
(a) This agreement shall be governed by, and construed and enforced in
accordance with, the law of the State of Florida.
(b) except as otherwise expressly provided herein, all notices pursuant to
this Quotas Pledge Agreement shall be given by notice in writing and shall be
(a) personally delivered or delivered by courier service {e.g., Federal Express
to the party being notified if an individual, or (b) transmitted by certified or
registered mail, return receipt requested, addressed
If to Pledgee: 000 Xxxxx Xxxxxxxxx
Xxxxx 000X
Xxxxxxx Xxxxxxx, Xxxxxx 00000
If to Pledgor: Vitech America, Inc.
X000 Xxxxxxxxx 00xx xxxxxx
Xxxxx, Xxxxxxx 00000
-4-
or at such other address as the party who is to receive such notice may
designate in writing. Notice shall be deemed effective and received upon: (i)
the date of receipt if delivered by courier or by personal delivery, or (ii)
seven (7) days after the deposit of same in a letter box or other means provided
for the posting of mail, postage prepaid as provided above.
(c) No failure or delay on the part of Pledgee in exercising any right
hereunder shall operate as a waiver of, or impair, any such right. No single or
partia1 exercise of any such right shall preclude any other or further exercise
thereof or the exercise of any other right. No waiver of any such right sha11 be
effective unless given in writing. No waiver of any such right shall be deemed a
waiver of any other right hereunder. The rights provided for herein are
cumulative and not exclusive of any other rights, powers, privileges or remedies
provided by law.
(d) This Agreement may be modified or amended only by an instrument or
instruments in writing executed by Pledgor and by Pledgee.
(e) This Agreement shall be binding upon and inure to the benefit of
Pledgor and Pledgee and their respective successors and assigns; provided,
however, that Pledgor may not assign any of its rights or obligations under this
Agreement without the prior written consent of Pledgee, which consent shall not
be unreasonably withheld.
(f) Any provision of this Agreement which is prohibited or enforceable in
any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining
provisions hereof or affecting the validity or enforceability of such provision
in any other jurisdiction.
(g) This Agreement may be executed in any number of counterparts and all
such counterparts taken together shall be deemed to constitute one and the same
agreement.
10. Termination.
Upon an "IPO Event" this pledge shall extinguish and be of no further force
and effect. For purposes of this Section 10, the term "IPO Event means that
Pledgor has an
-5-
effective registration statement with the Securities Exchange Commission for the
public sale of voting common stock of Pledgor.
By: /s/ Xxxxxxx St. Laurent
----------------------------------
Xxxxxxx St. Laurent, President
(PLEDGOR)
XXXXXX FINANCIAL INCORPORATED,
a Nevada corporation
BY________________________________
Xxxxxxxx X. Xxxxx, President
(PLEDGEE)
-6-
PROMISSORY NOTE
$2,000,000.00 Miami, Florida
October 28, 1998
1. FOR VALUE RECEIVED, VITECH AMERICA, INC., a Florida corporation ("Maker") ,
promises to pay to the order of XXXXX XXXXXXXX INCORPORATED, a Nevada
corporation ("Holder"), at such address as Holder may from time to time
designate, on or before the Maturity Date as set forth herein, the
principal sum of TWO MILLION AND NO/100THS DOLLARS ($2,000,000.00) (the
"Loan") plus interest from the date hereof as computed below.
2. The Loan term shall commence on he date set forth above (the "Commencement
Date") and shall expire on the second anniversary date following the
Commencement Date (the "Maturity Date").
3. The principal amount from time to time outstanding shall bear simple
interest from the Commencement Date through the Maturity Date at the rate
of twelve percent (12%) per annum. Interest shall be payable in arrears, on
a monthly basis, commencing on the first day of the first month following
the Commencement Date and continuing on the first day of each month
thereafter until the Maturity Date.
After an Event of Default (as hereinafter defined), all past due
principal and, to the extent permitted by applicable law, interest upon this
Note shall bear interest at the rate per annum equal to eighteen percent (18%)
(the "Default Rate").
4. Subject to Section 5 below, and upon the expiration of the Lean term,
whether as a result of maturity, acceleration upon default, permitted
payment of the outstanding balance of this Promissory Note, or otherwise,
but in no event later than the Maturity Date, the outstanding principal
balance under this Promissory Note, together with all accrued and unpaid
interest, shall be due and payable in full.
5. (a) Notwithstanding any provision to the contrary contained in this
Promissory Note, Holder may, at its option, convert the outstanding
principal amount hereof into that number of fully paid and nonassessable
shares (the "Shares") of voting common stock in Maker, as such shares shall
be constituted at the date of conversion (the "Common Stock") , equal to a
percentage (the "Percentage") of the then outstanding Common Stock and all
Common Stock issuable upon the exercise of any outstanding option, warrant,
contract, agreement or agreement or arrangement to issue or sell any Common
Stock or any other security exercisable or convertible into any Common
Stock of the Maker (collectively "Outstanding and Issuable Common Stock"),
which number of Share shall be determined by multiplying a fraction by the
number of shares of then Outstanding Issuable Common Stock (the
"Conversion"). The numerator of the fraction shall be the outstanding
principal balance of the Loan. The denominator of the fraction shall be the
sum of 10 times the net earnings of Maker, but in no event greater ;than
$40,000,000 plus the converted principal amount of the Loan (the
"Denominator"). The net earnings shall be determined based upon an audit of
twelve month period commencing January, 1, 1995. The audit shall be
conducted by Coopers and Xxxxxxx or such other certified public accountant
approved by Holder. Upon surrender of this Promissory Note to Maker, Maker
shall pay to Holder all accrued and unpaid ;interest due hereunder and
issue certificates evidencing the Shares. Holder may elect to convert prior
to the completion of the audits based upon the assumption that the
Denominator is $42,000,000 (representing the maximum $40,000,000 net
earnings plus $2,000,000 such that there was a deficiency in the number of
Shares issued on the Conversion, then Maker shall issue, within 10 days
following the completion of the audit, that number of Shares equal to the
deficiency.
(b) In the event that there are shares of capital stock of Maker
outstanding as of the date of Conversion in addition to shares of
Common Stock, then, in addition to the Shares of Common Stock
which Holder is entitled to receive under Section 5(a) above, upon
such Conversion and without any additional consideration, ;Holder
shall be entitled to receive a Percentage of all capital stock in
addition to the Common Stock and a Percentage of all capital stock
(other than the Common Stock) issuable upon the exercise of any
outstanding option, warrant contract, agreement or arrangement to
issue or sell any capital stock or any other security of Maker or
any other security exercisable or convertible into any capital
stock or any other security of Maker (except the Common Stock.
(c) In case of any reorganization or recapitalization of Maker (by
reclassification of its outstanding Common Stock , capital stock
or otherwise), or its consolidation or merger with or into another
corporation, Holder shall , upon conversion, be entitled to
receive the shares of stock, cash or other consideration which the
Holder would have received upon such reorganization,
recapitalization, consolidation or merger if immediately prior
thereto the Conversation had occurred and Holder had exchanged the
shares of Common Stock and any shares received under Section (5)
above in accordance with the terms of such reorganization,
recapitalization, consolidation or merger.
6. All payments under this Promissory Note shall be applied in the following
order:
(a) first, to the payment of accrued and unpaid interest one
principal outstanding balance; and
(b) second, to the reduction of the outstanding principal
balance of this Promissory Note.
7. All amounts payable under this Promissory Note are payable in lawful money of
the United States. Except as set forth in the Loan Agreement, dated of even date
herewith, by and between Maker and Holder, Maker shall not be permitted to
prepay any amount due hereunder.
8. It is agreed that time is of the essence in the performance of all
obligations hereunder. An "Event of Default" shall exist hereunder if any
one or more of the following events shall occur and be continuing:
(a) Default in the payment of the indebtedness evidenced by
this Note or any other agreement or instrument evidencing
or securing this Note or otherwise executed and delivered
by Maker in connection with the indebtedness evidenced by
this Note (the "Loan Documents) as and when such payment
shall become due and payable, whether by lapse of time,
declaration acceleration or otherwise;
(b) Default in the due and timely performance of any term,
condition, or covenant contained in the Loan Documents;
(c) The filing of an involuntary petition under the United
States Bankruptcy code or any other federal or state
bankruptcy statute, as now in effect or as hereafter
amended, against Maker, or if Maker shall allow the
appointment of a receiver, trustee, conservator or
liquidator of all or any part of the collateral securing
this Note (the "Collateral"), or if any of the Collateral
be levied upon by virtue of any execution, attachment, tax
levy or other writ, or if liens be filed against the
Collateral and such involuntary petition, appointment,
levy, or filing as the case may be, shall not be release,
stayed, bonded or insured against in favor of Maker,
satisfied or vacated within sixty (60) days after the
occurrence thereof;
(d) The abandonment of all or any part of the Collateral;
(e) The breach of any warranty, representation or
certification given in connection herewith, or any Loan
Documents;
(f) The filing by Maker of a petition under the United States
Bankruptcy Code or any other federal or state bankruptcy
statute, as now in effect or as hereafter amended, or if
Maker shall make an assignment for the benefit of its
creditors or be unable whether or not admitted, to pay its
debts as they become due;
(g) The filing of any foreclosure or forfeiture proceeding
with respect to any other lien on the Collateral, whether
junior or senior to this Agreement, which foreclosure or
forfeiture proceeding is not dismissed or released within
thirty (30) days;
(h) The transfer of the Collateral, voluntarily or
involuntarily, in violation of the terms of the Loan
Documents;
(i) The failure of Maker to pay, before delinquent, any taxes,
assessments, fees, charges, expenses or encumbrances
created, levied, or assessed upon or relating to the
Collateral (without any requirement for notice by Maker
that such payment is due) ; or
(j) Any repudiation by Maker of any obligation hereunder or
under the Loan Documents.
Upon the occurrence of any Event of Default or other default under any
of the Loan Documents, the holder hereof may, at its option declare the entire
unpaid balance of principal and accrued interest of this Note to be immediately
due and payable, and foreclose all liens and security interests securing payment
hereof or any part hereof; upon the occurrence of any of the Events of Default,
the entire unpaid balance of principal and accrued interest upon this Note
shall, without any action by Maker, immediately become due and payable without
demand for payment, presentment, protest, notice of protest and non-payment, or
other notice of default, notice of acceleration and intention to accelerate or
any other notice, all of which are expressly waived by Maker.
9. All fees, charges, goods, things, in action or any other sums or things of
value, other than the interest resulting from the stated rate or the
Default Rate (collectively, the "Additional Sums"), whether pursuant to
this Note, the Loan Documents, or any other document or instrument in any
way pertaining to this lending transaction, or otherwise with respect to
this lending transaction, under the laws of the State of Florida, may be
deemed to be interest with respect to this lending transaction, for the
purpose of any laws of the State of Florida that may limit the maximum
amount of interest to be charged with respect to this lending transaction ,
shall be payable by Maker as , and shall be deemed to be , additional
interest, and for such purposes only, the agreed upon and "contracted for
rate of interest" of this lending transaction shall be deemed to be
increased by the rate of interest resulting from the Additional Sums. Maker
understands and believes that this lending transaction complies with the
usury laws of the State of Florida.
10. Maker and all endorsers, guarantors and all persons liable on this
Promissory Note, waive presentment, protest and demand, notice of protest,
notice of intent to accelerate, notice of acceleration, and demand and
dishonor and nonpayment of this Promissory Note and any and all other
notices or matter of a like nature, and consent to any and all renewal and
extensions of the time of payment hereof, and agree further that any time
and from time to time without notice, the terms of payment herein may be
modified or increased, changed or exchanged by agreement between Holder and
Maker without in any way affecting the liability of any party to this
Promissory Note or any person liable or to become liable with respect to
any indebtedness evidenced hereby.
11. This Promissory Note will be governed by and construed in accordance with
the law of the State of Florida, except where such law is preempted by the
laws and regulations of the United States, and also except to the extent
otherwise provided in Section 14 below.
12. If any provision hereof shall, for any reason and to any extent, be invalid
or unenforceable, then the remainder of this Promissory Note shall not be
affected thereby but instead shall be enforceable to the maximum extent
permitted by law.
13. All agreement between Maker and Holder are expressly limited so that in no
contingency or event whatsoever, whether by reason of advancement of the
proceeds hereof, acceleration of maturity of the unpaid principal balance
hereof, or otherwise, shall the amount paid or agreed to be paid to Holder
for the use, forbearance or detention of the money to be advanced hereunder
exceed the highest lawful rate permissible under the applicable usury law,
as determined pursuant to Section 14 below. If, from any circumstances
whatsoever, fulfillment of any provision hereof or any other agreement
referred to herein or otherwise relating to this Promissory Note, at the
time performance of such provision shall be due, shall involve transcending
the limit of validity prescribed by law which a court of competent
jurisdiction may deem applicable thereto, then ipso facto, the obligation
to be fulfilled shall be reduced to the limit of such validity, and if,
from circumstance, Holder shall ever receive as interest and amount which
would exceed the highest lawful rate, such amount which would be excessive
interest shall be applied to the reduction of the unpaid principal balance
due hereunder as of the date such amount is received or deemed to be
received by Holder and not to the payment of interest. This provision shall
control every other provision of all agreements between Maker and Holder.
However, in the event an amount determined to be excessive interest is
applied against the unpaid principal balance, and thereafter the rate of
interest accruing under this Promissory Note decreases, this Promissory
Note shall in fact , accrue interest at the then highest lawful rate until
such time that an amount accrued equal to the amount of excessive interest
previously applied against principal.
14. Notwithstanding the foregoing, if the provisions of any law or regulation
of the United States or any agency or instrumentality thereof, as amended,
which validly supersedes any restriction of the State of Florida would
permit Holder to charge or receive a rate of interest with respect to the
indebtedness evidenced by this Promissory Note in excess of the maximum
rate of interest (if any) permitted to be charged or received by Holder
under applicable law of the State of Florida, the less restrictive
provisions of any such United States law or regulation shall apply in
determining the rate of interest permitted to be charged or receive.
15. All notices provided for herein shall be in writing and shall be (a)
personally delivered or delivered by courier service (e.g., Federal
Express) to the party being notified if an individual, or (b) transmitted
by certified or registered mail, return receipt requested, addressed to all
parties hereto at the address designated for each party as follows:
To Holder: Meris Financial Incorporated
000 Xxxx Xxxxxxxxx
Xxxxx 000X
Xxxxxxx Xxxxxxx, Xxxxxx 00000
To Maker: Vitech America, Inc.
0000 Xxxxxxxxx 00xx Xxxxxx
Xxxxx, Xxxxxxx 00000
or to such other address as either party may designate in writing. Notice shall
be deemed effective and received upon (i) the date of receipt if delivered by
courier or by personal delivery, or (ii) seven (7) days after the deposit of
same in a letter box or other means provided for the posting of mail, postage
prepaid as provided above.
16. As used herein the term "Maker" shall include the undersigned Maker and any
other person or entity, who may subsequent become liable for the payment
hereof. The term "Holder" shall include Holder as well as any other person
or entity to whom this Promissory Note or any interest in this Promissory
Note is conveyed, transferred or assigned with the prior written consent of
Maker.
17. Maker has no redemption rights under this Promissory Note.
VITECH AMERICA, INC., a Florida corporation
Vitech America By: /S/ Xxxxxxx X. St Laurent
Coporate Seal --------------------------------
Xxxxxxx X. St. Laurent
President
(MAKER)
STOCK PLEDGE AGREEMENT
EFFECTIVE DATE: OCTOBER 28, 1995
OPTIONOR: Vitech America, Inc.
0000 Xxxxxxxxx 00xx Xxxxxx
Xxxxx, Xxxxxxx 00000
OPTIONEE: Meris Financial Incorporated
000 Xxxxx Xxxxxxxxx
Xxxxx 000X
Xxxxxxx Xxxxxxx, Xxxxxx 00000
RECITALS;
Optionor desires to grant to Optionee an option to purchase certain
shares of capital stock (the "Capital Stock") of Optionor on the terms and
conditions set forth in this Stock Option Agreement (this "Agreement").
AGREEMENT
For good and valuable consideration, the receipt and sufficient of
which are hereby acknowledged, Optionor and Optionee hereby agree as follows:
1. Grant of Option. Optionor hereby grants a stock option to Optionee
to purchase that number of shares of Capital Stock equal to four
percent (4%) (to be determined on the Closing Date, as that term
is defined below), of the shares of Capital issued (beneficially
or otherwise) or issuable (beneficially or otherwise) by Optionor
upon the exercise of any outstanding option, warrant, contract,
agreement or arrangement to issue or sell any capital stock or any
other security of Optionor or any other security exercisable or
convertible into any capital stock or any other security of
Optioneor (the "Option Shares"), subject to the terms and
conditions of this agreement (the "Option").
2. Exercise Price. The price payable by Optionee upon exercise of the
Option (the "Exercise Price") shall be $2,000,000.
3. Exercise of Option. Optionee shall have the right to exercise the
Option subject to following terms and conditions:
(a) Exercise. The Option may be exercised at any time during
the period beginning on the Effective date and ending on
the 18th month anniversary date following the Effective
Date (the "Option Period"). If the period during which
Optionee may exercise the Option has ended, and the Option
has not been exercised, the Option will lapse and any
subsequent attempt to exercise the Option will be of no
effect.
(b) Manner of Exercise. The Option shall be exercisable only
by an Optionee given written notice to the Optionor of its
intention to exercise the Option, which notice shall state
the number of shares of Option Shares as to which this
Option is being exercised.
(c) The Closing. The consummation of a purchase of Option
Shares pursuant to an exercise of the Option shall take
place at the offices of Optionor on such date as the
parties shall agree upon but in no event later than ten
(10) business days after receipt by Optionor of the notice
referred to in Section 4(b) above (the "Closing Date"). At
the closing, Optionee shall deliver to Optionor (i) cash
or a cashier's check for the Exercise Price. None of the
Option Shares will be issued to Optionee until Optionor
has received the Exercise Price therefor. In exchange
therefor, Optionor shall convey and transfer the Option
Shares. Optionor shall reflect the transfer of such Option
Shares on its books and records.
4. Adjustment to Option Shares. In the event of any reorganization or
recapitalization of Optionor (by reclassification of its
outstanding shares of Capital Stock or otherwise), or its
consolidation or merger with or into another corporation, Optionee
shall, upon exercise of the Option, be entitled to receive, in
lieu of the shares of Capital Stock which the Optionee would
otherwise be entitled to receive upon such exercise and without
any payment in addition to the aggregate Exercise and without any
payment in addition to the aggregate Exercise Price for such
shares assuming that no event specified above had occurred, the
shares of stock, cash or other consideration which the Optionee
would have received upon such reorganization, recapitalization,
consolidation or merger if immediately prior thereto the Optionee
had exercised this Option and had exchanged such Option Shares in
accordance with the terms of such reorganization,
recapitalization, consolidation or merger.
5. Optionor's Covenants. Optionor hereby represents, warrants and
covenants that during the Option Period, Optionor shall reserve
that number of shares necessary to fulfill its obligations
hereunder.
6. Notices. All notices provided for herein shall be in writing and
shall be (a) personally delivered or delivered by courier service
(e.g., Federal Express) to the party being notified if an
individual, or (b) transmitted by certified or registered mail,
return receipt requested, addressed
If to a Meris: 000 Xxxxx Xxxxxxxxx
Xxxxx 000X
Xxxxxxx Xxxxxxx, Xxxxxx 00000
If to Vitech 0000 Xxxxxxxxx 00xx Xxxxxx
Xxxxx, Xxxxxxx 00000
or at such address as the party who is to receive such notice may
designate in writing. Notice shall be deemed effective and received
upon: (i) the date of receipt if delivered by courier or by personal
delivery, or (ii) seven (7) days after the deposit of same in a letter
box or other means provided for the posting of mail, postage prepaid as
provided above.
7. Successors and Assigns. This Agreement shall be binding upon and
inure to the benefit of the parties hereto and their respective
successors, legal representatives, executors and heirs' provided,
however, that no party hereto shall have the right to assign any
right hereunder or delegate any obligation hereunder, in whole or
in part, without the prior written consent of the other party
hereto, and any attempt to so shall be void.
8. Amendment. Modification or Waiver. No amendment, modification or
waiver of any condition, provision or term of this Agreement shall
be valid or of any effect unless made in writing, signed by the
party to be bound and specifying with particularity the nature and
extent of such amendment, modification or waiver.
9. Entire Agreement. This agreement contains the entire understanding
and agreement of the parties hereto with respect to the subject
matter hereof and supersedes all prior agreements and
understandings between the parties with respect to such subject
matter.
10. Florida Law to Govern. This Agreement shall be governed by, and
construed and enforced in accordance with, the law of the State of
Florida.
11. Attorney's Fees. In the event any party hereto brings any action
to enforce any provision hereof, or to secure specific performance
hereof or to collect any damages of any kind for any breach of
this Agreement, the prevailing party shall be entitled to all
court costs, all expenses arising out of or incurred by reason of
litigation and any reasonable attorney's fees expended or incurred
for any such proceeding.
12. Severability. Each provision of this Agreement is intended to be
severable, and the invalidity or unenforceability of one or more
provisions of this agreement shall not affect the validity and
enforceability of the other provision. Should any valid federal or
Utah state law or final determination of any administrative agency
or court of competent jurisdiction affect any provision of this
agreement, the provision or provisions so affected shall be;
automatically conformed to the law or determination and otherwise
this agreement shall continue in full force and effect.
13. Counterparts. This agreement may be executed in two (2) or more
counterparts, each of which shall be considered one in the same
agreement and shall become effective when one or more counterparts
have been found by each of the parties hereto and delivered to the
other parties hereto.
14. Withholding. Optionee authorizes Optionor to withhold in
accordance with applicable law from any regular cash compensation
payable to him any taxes required to be withheld by Optionor under
federal, state or local law as a result of its exercise of Option.
IN WITNESS WHEREOF, the parties have executed this Agreement on the
Effective Date.
MERIS FINANCIAL INCORPORATED, a
Nevada limited partnership
By:
--------------------------------
Xxxxxxxx X. Xxxxx, President
(Optionee)
VITECH AMERICA, INC., a Florida
Vitech America, Inc. corporation
Corporate Seal
By: /S/ Xxxxxxx St. Laurent
--------------------------------
Xxxxxxx St. Laurent, President
(Optionor)
QUOTAS PLEDGE AGREEMENT
Effective Date: October 28, 1995
Pledgor: Vitech America, Inc.
0000 Xxxxxxxxx 00xx Xxxxxx
Xxxxx, Xxxxxxx 00000
Pledgee: Meris Financial Incorporated, a Nevada corporation
000 Xxxxx Xxxxxxxxx
Xxxxx 000X
Xxxxxxx Xxxxxxx, Xxxxxx 00000
Recitals:
A. Contemparaneously with the execution of this Quotas Pledge Agreement
(this "Agreement"), Pledgee is making a loan to Pledgor in the original
principal amount of Two Million Dollar ($2,000,000.00) (the "Loan"), which
loan is evidenced by a Promissory Note dated of even date herewith executed
by Pledgor to the order of Pledgee. All documents and instruments evidencing
or securing the Loan are hereinafter referred to as the "Loan Documents".
B. Pledgor is the record and beneficial owners of 1,000 shares (the
"Shares") of voting common stock, no par value, of the Company representing
all of the issued and outstanding capital stock of the Company.
C. To induce Pledgee to make the Loan, Pledgors hasve agreed to pledge
to Pledgee all their right, title and interest in and to the Shares to
secure the Company's performance under the Loan Documents.
Agreements:
For good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, Pledgors and Pledgee do hereby agree as follows:
1. Pledge of Shares. As security for the payment in full of all amounts
which may at any time be or become payable by the Company under the
Loan Documents, Pledgors do hereby pledge to Pledgee, for the benefit
Pledgee and its successors and assigns, a security interest in all of
the Shares and in all other capital stock now or hereafter issued to
Pledgors or issuable to Pledgors upon the exercise of any outstanding
option, warrant, contract, agreement or arrangement to issue or sell
any capital stock or any other security of the Company or any other
security exercisable or convertible into any capital stock or any
other security of the Company, and all cash, securities and its
property distributed in exchange or substitution for or with respect
to thereto and all proceeds of the foregoing (collectively, the
"Pledged Collateral").
2. Perfection of Security Interest; Delivery of Pledged Collateral.
(a) Pledgors agree to execute any and all instruments reasonably
deemed necessary by Pledgee in order to perfect the pledge of the Pledge
Collateral and the grant of the security interest therein under this Agreement.
Pledgors hereby tender to Pledgee the certificate evidencing the Shares and
Pledgee covenants to hold the same in accordance with the terms and provisions
of this Agreement. Pledgors covenant and agree to tender all certificates now or
in the future evidencing capital stock of the Company owned by Pledgors.
(b) Pledgors hereby represent and warrant that all action required
to be taken by any person to transfer title to the Shares to Pledgee and/or its
nominee, other than registration of Pledgee and/or its nominee as shareholder
and owner of the Shares in the Company share transfer books, will be taken and
covenants that, until this Agreement is terminated in accordance with Section 8
hereof, no such action shall be rescinded or superseded or otherwise cease to
remain in full force and effect.
(c) If the Company fails to make payment pursuant to the terms of
the Loan documents, shall fail to comply with any of the terms and conditions of
the Loan Documents, or if Pledgors shall breach one of its covenants contained
in Section 3 hereof (collectively, an "Event of Default"), Pledgee shall give
Pledgors ten (10) days' prior written notice of such Event of Default. If
Pledgors fail to cure such Event of Default within the above referenced ten day
period, then Pledgee shall have the right, without further notice to or demand
of Pledgors, all of which are hereby waived: (I) to cause its registration as a
shareholder and the owner of the Shares in the share transfer books of the
Company (and Pledgors will cooperate fully with Pledgee in causing such
registration to be effective); and (ii) to otherwise foreclose on the Pledged
Collateral.
3. Covenants. Pledgors covenant to Pledgee that:
(a) All shares are, and any additional capital stock of the Company
acquired by Pledgors will be, dully authorized and validly issued
and shall be fully paid and non-assessable.
(b) Pledgors have record and beneficial ownership of all of the
Shares, free and clear of all liens, security interests, options
and other encumbrances except for the security interest created by
this Agreement.
(c) Pledgors will not sell or offer to sell or otherwise transfer,
encumber the Shares or any interest therein, without the prior
written consent of Pledgee, which consent may be withheld by
Pledgee in its sole and absolute discretion. Pledgors will not
permit the Shares to be attached or replevined.
(d) Pledgors have the right, title, power and authority to convey the
Collateral and enter into this Agreement.
(e) Pledgors will defend the Shares against all claims and demands of
all persons at any time claiming the same or any interests
therein.
(f) The execution and delivery of this Agreement will not violate any
law or agreement to which Pledgor is a party.
4. Dividends and Distributions. So Long as this Agreement is in effect, and
unless other wise agreed to between Pledgors and Pledgee, Pledgors shall
pay over to Pledgee any and all dividends, returns of capital or other
distributions made on or in respect of the Shares and all cash received by
Pledgors with respect to any Pledged Collateral.
5. Votings Rights. So long as no event constituting an Event of Default, and
no event which, with the passage of time or the giving of notice or both,
would constitute an Event of Default, shall have occurred and be
continuing, Pledgors shall be entitled to exercise any and all voting
rights relating or pertaining to the Shares held by him or any part thereof
for any purpose not insistent with the terms of this Agreement.
6. Remedies.
(a) If an event constituting an Event of Default, or an event which, with the
passage of time or the giving of notice of both, would constitute an Event
of Default, has occurred and is continuing, all rights of Pledgors to
exercise voting rights shall, without prior notice to or demand of Pledgors
or any other party (all of which are hereby waived), thereupon become
vested in Pledgee.
(b) If an Event of Default shall occur and be continuing, then Pledgee shall
have, in addition to the right to exercise any rights of a secured party
upon default under the law of the state of Florida, the right in its
discretion, upon notice to Pledgors, to sell the remaining Pledged
Collateral, or any part thereof, at any public or private sale at which
Pledgee may be a purchaser upon such terms as Pledgee shall deem
appropriate. Any purchaser at any such sale shall hold the property sold
absolutely free from any claim or right on the part of Pledgors and
Pledgors hereby waive all rights with respect to or in connection with the
sale of the Pledged Collateral which he now has or may in the future have
under any applicable law. As an alternative to exercising the power of sale
herein conferred upon it, Pledgee may institute an action or proceeding in
any court or courts of competent jurisdiction to foreclosure on and to sell
the Pledged Collateral, or any part thereof, pursuant to a judgment, order
or decree of such court or courts.
(c) The proceeds of any sale of the Pledged Collateral pursuant to paragraph
(b) above shall be applied to amounts due under the Loan Documents,
including without limitation, the costs and expenses of any foreclosure
action or proceeding and of such sale.
7. Further Assurances. Pledgors will do such further acts and things, and
execute and deliver such additional conveyances ,assignments, agreements
and instruments, as Pledgee may at any time reasonably request in
connection with the administration enforcement of this Agreement or related
to the Pledged Collateral or any part thereof or in order to assure and
confirm unto Pledgee its rights, powers and remedies hereunder.
8. Termination. This Agreement and any security interest in the Pledged
Collateral created hereby shall terminate at such time as all obligations
of Pledgors under the Loan Documents shall have been fully satisfied, at
which time Pledgee shall release its security interest in, and shall
redeliver to Pledgors to the extent such Pledged Collateral has been
delivered to Pledgee, such portion of the Pledged Collateral as has not
been sold or otherwise applied by or on behalf of Pledgee in satisfaction
of the obligations of Pledgors under the Loan Documents and Pledgee shall
promptly execute and deliver to Pledgors such certificates, instruments of
the transfer and other documents as may be necessary in connection
therewith.
9. Miscellaneous.
(a) This Agreement shall be governed by, and construed and enforced in
accordance with , the law of the State Florida.
(b) Except as otherwise expressly provided herein, all notices pursuant to this
Stock Pledge Agreement shall be given by notice in writing and shall be (a)
personally delivered or delivered by courier service (e.g., Federal
Express) to the party being notified if an individual, or (b) transmitted
by certified or registered mail, return receipt requested, addressed.
If to Pledgee: 000 Xxxxx Xxxxxxxxx
Xxxxx 000X
Xxxxxxx Xxxxxxx, Xxxxxx 00000
If to Pledgor: c/o Vitech America, Inc.
0000 Xxxxxxxxx 00xx Xxxxxx
Xxxxx, Xxxxxxx 00000
or at such other address as the party who is to receive such notice may
designate in writing. Notice shall be deemed effective and receive
upon" ( I) the date or receipt if delivered by courier or by personal
delivery, or (ii) seven (7) days after the deposit of same in a letter
box or other means provided for the posting of mail, postage prepaid as
provided above.
(c) No failure or delay on the part of Pledgee in exercising any right
hereunder shall operate as a waiver of, or impair, any such right. No
single or partial exercise of any such right shall preclude any other
or further exercise thereof or the exercise of any other right. No
waiver of any such right shall be effective unless given in writing. No
waiver of any such right shall be deemed a waiver of any other right
hereunder. The rights provided for herein are cumulative and not
exclusive of any other rights, powers, privileges or remedies by law.
(d) This Agreement may be modified or amended only by an instrument or
instruments in writing executed by Pledgorsand by Pledgee.
(e) This agreement shall be binding upon and inure to the benefit of
Pledgors and Pledgee and their respective successors and assigns;
provided, however, that Pledgors may not assign any of its rights
or obligations under this Agreement without the prior written
consent of Pledgee, which consent shall not be unreasonably
withheld.
(f) Any provision of this Agreement which is prohibited or enforceable
in any jurisdiction shall, as to such jurisdiction, be ineffective
to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof or affecting the
validity or enforceability of such provision in any other
jurisdiction.
(g) This agreement may be executed in any number of counterparts and
all such counterparts taken together shall be deemed to constitute
one and the same agreement.
10. Termination. Upon an "IPO Event" this pledge shall extinguish and be of no
further force and effect. For purposes of this Section 10, the term "IPO Event"
means that the Company has an effective registration statement filed with the
Securities Exchange Commission for the public sale of voting common stock of the
Company.
/S/ Xxxxxxx St. Laurent
----------------------------
Xxxxxxx St. Laurent,
/S/ Xxxxxx St. Laurent
----------------------------
Xxxxxx St. Laurent, III
/S/ Xxxxxxx St. Laurent for Xxxxxxxx St. Laurent a minor
----------------------------------------------------------
Xxxxxxxx St. Laurent
/S/ Xxxxxxx St. Laurent for Alexander St. Laurent a minor
----------------------------------------------------------
Alexander St. Laurent
(PLEDGORS)
MERIS FINANCIAL INCORPORATED, a
Nevada corporation
By:
----------------------------------------
Xxxxxxxx X. Xxxxx, President
(PLEDGEE)
COLLATERAL ASSIGNMENT OF OPTION AGREEMENTS
Effective Date : October 28, 1995
Assignor: Vitech America, Inc.
0000 Xxxxxxxxx 00xx Xxxxxx
Xxxxx, Xxxxxxx 00000
Assignee: Meris Financial Incorporated, a Nevada corporation
000 Xxxxx Xxxxxxxxx
Xxxxx 000X
Xxxxxxx Xxxxxxx, Xxxxxx 00000
Recitals:
A. Contemporaneously with the execution of this Collateral Assignment
of Option Agreements (this "Agreement), Assignees is making a loan to Assignor
in the original principal amount of Two Million dollar ($2,000,000.00) (the
"Loan"), which loan is evidenced by a Promissory Note dated of even date
herewith executed by Assignor to the order of Assignee. All documents and
instruments evidencing or securing the Loan are hereinafter referred to as the
"Loan Documents".
B. Assignor is the record and beneficial owners of those certain
options described on the attached Exhibit "A" (the "Options").
C. To induce Assignee to make the Loan, Assignor has agreed to grant a
security interest in all of its right, title and interest in and to the Options
to secure Assignor's performance under the Loan Documents.
Agreements:
In consideration of the mutual covenants herein contained, the parties
hereto hereby agree as follows:
1. Assignment. Assignor does hereby assign, convey, transfer, pledge
and grant a security interest to Assignee in and to all of Assignor's right,
title and interest in and to the Options, together with all proceeds, products,
renewals, additions to, substitutions for, replacements and accessions thereof
(collectively to "Collateral") security for the payment and performance of
those obligations under the Loan Documents (the "Obligations"). Assignee hereby
agrees to release the Collateral after the fulfillment of all of the
Obligations.
2. Covenants and Warranties. Assignor does hereby covenant and
warrant that:
(a) It has the right, title, power and authority to convey
the Collateral and enter into this Agreement;
(b) The Collateral is being conveyed free and clear of all
liens, security interests, restrictions, setoffs, adverse claims,
assessments, defaults, defenses and encumbrances of any nature
whatsoever, arising by, through or under the acts or omissions of
Assignor or otherwise by persons claiming all or portion of Collateral
by, Through or under Assignor;
(c) Assignor will defend the Collateral against all claims
and demands of all persons at any time claiming the same or any
interests therein;
(d) The execution and delivery of this Agreement will not
violate any Law or agreement to which Assignor is a party:
(e) Assignor will not sell or offer to sell or otherwise
transfer, encumber the Collateral or any interest therein, without the
prior written consent of assignee which consent may be withheld by
Assignee in its sole and absolute discretion. Assignor will not permit
the Collateral to be attached or replevined.
3. Default In the event that Assignor defaults in the performance of
any terms of this Agreement, or there occurs a default in any other
documents securing or relating to the security for the Obligations,
Assignee shall have all the rights and remedies, at law, or in equity,
together with the rights or remedies provided in the Uniform Commercial
Code in force in the State of Arizona to enforce its security interest
in the collateral created hereby, and to retain any and all accrued
interest thereon. Assignee may, upon five (5) days prior notice to
Assignor ( which Assignor agrees in a reasonable notice), sent by
registered or certified mail return receipt requested, postage prepaid,
retain all, or any part of, the Collateral
4. General
(a) No remedy herein conferred upon or reserved to Assignee is
intended to be exclusive of any other remedy herein, or
provided or permitted by law or equity, but each shall be
cumulative with and shall be in addition to every other remedy
given hereunder, now or hereafter existing at law, in equity,
or by statute;
(b) No default shall be waived by Assignee except in writing
and no waiver of any payment or other right under this
Agreement shall operate as a waiver of any other payment or
right;
(c) Assignee may assign, transfer or deliver any of the
Collateral to any of its assignees or transferees and
thereafter shall be fully discharged from any responsibility
with respect to such Collateral.
(d) Any consent, notice or other communication required or
contemplated by this Agreement shall be in writing, and shall
be deemed given when personally delivered or,, if mailed, on
the date that is two (2) days after the notice is deposited in
the United States mail, postage prepaid, addressed to the
party to whom directed at the address given for that party on
the front page of this Agreement or at such other address as
may be designated by either party by notice as herein
provided.
(e) This Agreement shall be construed under and governed by
the laws of the State of Florida.
(f) All of the rights of Assignee under this Agreement shall
be cumulative and shall inure to the benefit of its successors
and assigns. All obligations of Assignor hereunder shall be
binding upon the respective heirs, legal representatives,
successors and assigns of Assignor.
(g) Assignor agrees to execute Uniform Commercial Code
financing statements and other documents perfecting,
evidencing or otherwise relating to the security interests
granted herein as from time to time deemed necessary or
appropriate by Assignee in form and substance satisfactory to
Assignee.
(h) In the event that any provision or clause of this
Agreement conflicts with applicable laws, such conflict shall
not affect other provisions of this Agreement which can be
given effect without the conflicting provision, and to this
end, the provisions of the Agreement are declared to be
severable. Any such provision held invalid under applicable
laws shall be replaced with a provision which as closely as
possible parallels, the contents and substantive effect of the
invalid provision.
(i) This is a continuing agreement and the grant of security
interest hereunder shall remain in full force and effect and
all rights, powers and remedies of the Trust shall continue to
exist until the Obligations are performed in full.
IN WITNESS WHEREOF, this Agreement is signed on the date of dates
indicated below.
VITECH AMERICA, INC,. a Florida corporation
DATED: October 28, 1995 By: /S/ Xxxxxxx St. Laurent
-------------------------
Xxxxxxx St. Laurent, President
Vitech America, Inc.
Corporate Seal
ASSIGNMENT OF LIFE INSURANCE POLICY AS COLLATERAL
Effective Date: October 28, 0000
Xxxxxxxx: Xxxxxx Xxxxxxx, Inc.
0000 Xxxxxxxxx 00xx Xxxxxx
Xxxxx, Xxxxxxx 00000
Lender: Meris Financial Incorporated
000 Xxxxx Xxxxxxxxx
Xxxxx 000X
Xxxxxxx Xxxxxxx, Xxxxxx 00000
Grantor: Xxxxxxx X. St. Laurent
000 Xxxxxxxx Xxxx
Xxxxxxx Xxxxx, Xxxxxxx 00000
Recitals:
Lender has agreed to advance to Borrower the sum of $2,000,000.00 on the
consideration that Grantor collaterally assign to Lender all of Grantor's right,
title and in interest in and to a certain life insurance policy. Grantor is a
shareholder of Borrower and the financing will be of substantial economic
benefit to Grantor.
Agreement:
For good and valuable consideration, the receipt and sufficient of
which are hereby acknowledged, Grantor hereby pledges, collaterally assigns,
transfers, delivers and set over to and in favor of Lender, its successors and
assigns, in Life Insurance Policy Number W20834 issued by The Midland Mutual
Life Insurance Company (herein called the "Insurer") and any supplement
contracts issued in connection therewith (said policy and contracts herein
called the "Policy") , upon the life of Grantor, and all claims, options,
privileges, rights, title and interest therein and thereunder (except as
provided in Paragraph C hereof), subjects to all the terms and conditions of the
Policy and to all superior liens if any, which the Insurer may have against the
Policy. Grantor by this instrument agrees, and Lender by the acceptance of this
assignment agrees, to the conditions and provisions herein set forth.
A. It is expressly agreed that , without detracting from the generality of the
foregoing, the following specific rights are included in this assignment
and pass by virtue hereof:
1. The sole right to collect from the Insurer the net proceeds of the
Policy when it becomes a claim by death or maturity;
2. The sole right to surrender the Policy and receive the surrender
value thereof at any time provided by the terms of the Policy and
at such other times as the Insurer may allow;
3. The sole right to obtain one or more loans or advances on the
Policy at any time, either from the Insurer or from other persons,
and to pledge or assign the Policy as security for such loans or
advances;
4. The sole right to collect and receive all distributions or shares
of surplus, dividend deposits or additions to the Policy, now or
hereafter made or apportioned thereto, and to exercise any and all
options contained in the Policy with respect thereto; provided
that, unless and until Lender shall notify the Insurer in writing
to the contrary, the distributions or shares of surplus, dividend
deposits and additions shall continue on the plan in force at the
time of this assignment; and
5. The sole right to exercise all nonforfeiture rights permitted by
the terms of the Policy or allowed by the Insurer and to receive
all benefits and advantages derived therefrom.
B. It is expressly agreed that the foregoing specific rights, so long as the
Policy has not been surrender, and reserved and excluded from this
assignment and do not pass by virtue hereof:
1. The right to collect from the Insurer any disability benefit
payable in cash that does not reduce the amount insurance;
2. The right to designate and change the beneficiary; and
3. The right to elect any optional mode of settlement permitted by
the Policy or allowed by the Insurer;
however, the reservation of these rights shall in no way impair the
right of Lender to surrender the Policy completely with all its incidents or
impair other right of Lender hereunder, and any designation or change of
beneficiary or election of a mode of settlement shall be made subject to this
assignment and to the rights of Lender hereunder.
C. This assignment is made and the Policy is to be held as collateral security
for any and all present and future liabilities of Borrower or grantor or
any of them, to Lender, of every nature and kind, whether now existing or
that may hereafter arise in the ordinary course of business between any of
the above referenced Borrower, Grantor and Lender, together with interest,
costs, expenses, attorney' fees, and other fees and charges (all of which
liabilities secured or to become secured and herein individually,
collectively and interchangeably called "Liabilities").
D. Lender covenants and agrees with the undersigned as follows:
1. That any balance of sums received hereunder from the Insurer
remaining after payment of the then existing Liabilities, matured
or unmatured, shall be paid by Lender to the persons who would
have been entitled thereto under the terms of the Policy had this
assignment not been executed;
2. That Lender will not exercise either the right to surrender the
Policy or (except for the purpose of paying premiums) the right to
obtain policy loans from the Insurer, until there has been default
in any of the Liabilities or a failure to pay any premium when
due, nor until twenty days after Lender shall have mailed, by
first-class mail, to the undersigned at the address last supplied
in writing to Lender specifically referring to this assignment,
notice of intention to exercise such right; and
3. That Lender will upon request forward the Policy without
unreasonable delay to the Insurer for endorsement of any
designation or change of beneficiary or any election of optional
mode of settlement.
E. The Insurer is hereby authorized to recognize Lender's claims to rights
hereunder without investigating the reason for any action taken by Lender,
or the validity or the amount of the Liabilities or the existence of any
default therein, or the giving of any notice under Paragraph E (2) above or
otherwise, or the application to be made by Lender of any amounts to be
paid to Lender. The sole signature of Lender shall be sufficient for the
exercise of any rights under the Policy assigned hereby and the sole
receipt of Lender for any sums received shall be a full discharge and
release therefor to the Insurer. Checks for all or any part of the sums
payable under the Policy and assigned herein shall be drawn to the
exclusive order of Lender if, when, and in such amounts, as may be
requested by Lender.
F. Lender shall be under no obligation to pay any premium, or the principal of
or interest on nay loans or advances on the Policy whether or not obtained
by Lender, or any other charges on the Policy, but any such amounts so paid
by Lender from its own funds shall become a part of the Liabilities hereby
secured, shall be due immediately, and shall bear interest at the lower of
(a) the highest interest rate of any promissory note evidencing a liability
from borrower to Lender or (b) the highest rate permitted by applicable
law, from the date of each such advance until is repaid in full.
G. The exercise of any right, option, privilege, or power given herein to
Lender shall be at the option of Lender, but (except as restricted by
Paragraph E (2) above) Lender may exercise any such right, option,
privilege or power without notice to, or assent by, or affecting the
liability of, or releasing any interest hereby assigned by, the
undersigned, or any of them.
H. Lender may take or release other security, may release any party primarily
or secondarily liable for any of the Liabilities, may grant extensions,
renewals or indulgences with respect to the Liabilities, or may apply to
the Liabilities in such order as Lender shall determine, the proceeds of
the Policy assigned or any amount received on account of the Policy by the
exercise of any right permitted under this assignment, without resorting or
regard to other security.
I. In the event of any conflict between the provisions of this assignment and
the provisions of the note or other evidence of any Liability, with respect
to the Policy or rights of collateral security therein, the provisions of
this assignment shall prevail.
J. Grantor declares that no proceedings in bankruptcy are pending against him
and that his property is not subject to any assignment for the benefit or
creditors.
SIGNED AND SEALED THIS 28 DAY OF OCTOBER, 1995
/S/ Xxxxxxx X. St. Laurent
-----------------------------
Xxxxxxx X. ST. Laurent
STATE OF Florida )
)
County of Dade )
This instrument was acknowledged and executed before me this 28 day
of October, 1995, by Xxxxxxx C, St. Laurent.
/S/ Xxxxx Xxxxxx
-----------------------------
Notary Public
ACKNOWLEDGE OF ASSIGNMENT BY INSURER
The Midland Mutual Life Insurance Company hereby acknowledges receipt of a
duplicate of this Assignment of Life Insurance Police Number W20834, which has
been filed at the home office of Columbus on this 2 day of February 1996.
The Midland Mutual Life Insurance
Company , a corporation
By: /S/ Xxxxxxxx Xxxxx
-----------------------------
Authorized Officer
ASSIGNMENT OF LIFE INSURANCE POLICY AS COLLATERAL
Effective Date: October 28, 0000
Xxxxxxxx: Xxxxxx Xxxxxxx, Inc.
0000 Xxxxxxxxx 00xx Xxxxxx
Xxxxx, Xxxxxxx 00000
Lender: Meris Financial Incorporated
000 Xxxxx Xxxxxxxxx
Xxxxx 000X
Xxxxxxx Xxxxxxx, Xxxxxx 00000
Grantor: Xxxxxx St. Laurent, III
Xx. Xxxxxxxxxx, X00, X00
Xxxxx, XX, Xxxxxx 00000
Recitals:
Lender has agreed to advance to Borrower the sum of $2,000,000.00 on the
consideration that Grantor collaterally assign to Lender all of Grantor's right,
title and in interest in and to a certain life insurance policy. Grantor is a
shareholder of Borrower and the financing will be of substantial economic
benefit to Grantor.
Agreement:
For good and valuable consideration, the receipt and sufficient of
which are hereby acknowledged, Grantor hereby pledges, collaterally assigns,
transfers, delivers and set over to and in favor of Lender, its successors and
assigns, in Life Insurance Policy Number _______________ issued by The Midland
Mutual Life Insurance Company (herein called the "Insurer") and any supplement
contracts issued in connection therewith (said policy and contracts herein
called the "Policy") , upon the life of Grantor, and all claims, options,
privileges, rights, title and interest therein and thereunder (except as
provided in Paragraph C hereof), subjects to all the terms and conditions of the
Policy and to all superior liens if any, which the Insurer may have against the
Policy. Grantor by this instrument agrees, and Lender by the acceptance of this
assignment agrees, to the conditions and provisions herein set forth.
A. It is expressly agreed that , without detracting from the generality of the
foregoing, the following specific rights are included in this assignment
and pass by virtue hereof:
1. The sole right to collect from the Insurer the net proceeds of the
Policy when it becomes a claim by death or maturity;
2. The sole right to surrender the Policy and receive the surrender
value thereof at any time provided by the terms of the Policy and
at such other times as the Insurer may allow;
3. The sole right to obtain one or more loans or advances on the
Policy at any time, either from the Insurer or from other persons,
and to pledge or assign the Policy as security for such loans or
advances;
4. The sole right to collect and receive all distributions or shares
of surplus, dividend deposits or additions to the Policy, now or
hereafter made or apportioned thereto, and to exercise any and all
options contained in the Policy with respect thereto; provided
that, unless and until Lender shall notify the Insurer in writing
to the contrary, the distributions or shares of surplus, dividend
deposits and additions shall continue on the plan in force at the
time of this assignment; and
5. The sole right to exercise all nonforfeiture rights permitted by
the terms of the Policy or allowed by the Insurer and to receive
all benefits and advantages derived therefrom.
B. It is expressly agreed that the foregoing specific rights, so long as the
Policy has not been surrender, and reserved and excluded from this
assignment and do not pass by virtue hereof:
1. The right to collect from the Insurer any disability benefit
payable in cash that does not reduce the amount insurance;
2. The right to designate and change the beneficiary; and
3. The right to elect any optional mode of settlement permitted by
the Policy or allowed by the Insurer;
however, the reservation of these rights shall in no way impair the
right of Lender to surrender the Policy completely with all its incidents or
impair other right of Lender hereunder, and any designation or change of
beneficiary or election of a mode of settlement shall be made subject to this
assignment and to the rights of Lender hereunder.
C. This assignment is made and the Policy is to be held as collateral security
for any and all present and future liabilities of Borrower or grantor or
any of them, to Lender, of every nature and kind, whether now existing or
that may hereafter arise in the ordinary course of business between any of
the above referenced Borrower, Grantor and Lender, together with interest,
costs, expenses, attorney' fees, and other fees and charges (all of which
liabilities secured or to become secured and herein individually,
collectively and interchangeably called "Liabilities").
D. Lender covenants and agrees with the undersigned as follows:
1. That any balance of sums received hereunder from the Insurer
remaining after payment of the then existing Liabilities, matured
or unmatured, shall be paid by Lender to the persons who would
have been entitled thereto under the terms of the Policy had this
assignment not been executed;
2. That Lender will not exercise either the right to surrender the
Policy or (except for the purpose of paying premiums) the right to
obtain policy loans from the Insurer, until there has been default
in any of the Liabilities or a failure to pay any premium when
due, nor until twenty days after Lender shall have mailed, by
first-class mail, to the undersigned at the address last supplied
in writing to Lender specifically referring to this assignment,
notice of intention to exercise such right; and
3. That Lender will upon request forward the Policy without
unreasonable delay to the Insurer for endorsement of any
designation or change of beneficiary or any election of optional
mode of settlement.
E. The Insurer is hereby authorized to recognize Lender's claims to rights
hereunder without investigating the reason for any action taken by Lender,
or the validity or the amount of the Liabilities or the existence of any
default therein, or the giving of any notice under Paragraph E (2) above or
otherwise, or the application to be made by Lender of any amounts to be
paid to Lender. The sole signature of Lender shall be sufficient for the
exercise of any rights under the Policy assigned hereby and the sole
receipt of Lender for any sums received shall be a full discharge and
release therefor to the Insurer. Checks for all or any part of the sums
payable under the Policy and assigned herein shall be drawn to the
exclusive order of Lender if, when, and in such amounts, as may be
requested by Lender.
F. Lender shall be under no obligation to pay any premium, or the principal of
or interest on nay loans or advances on the Policy whether or not obtained
by Lender, or any other charges on the Policy, but any such amounts so paid
by Lender from its own funds shall become a part of the Liabilities hereby
secured, shall be due immediately, and shall bear interest at the lower of
(a) the highest interest rate of any promissory note evidencing a liability
from borrower to Lender or (b) the highest rate permitted by applicable
law, from the date of each such advance until is repaid in full.
G. The exercise of any right, option, privilege, or power given herein to
Lender shall be at the option of Lender, but (except as restricted by
Paragraph E (2) above) Lender may exercise any such right, option,
privilege or power without notice to, or assent by, or affecting the
liability of, or releasing any interest hereby assigned by, the
undersigned, or any of them.
H. Lender may take or release other security, may release any party primarily
or secondarily liable for any of the Liabilities, may grant extensions,
renewals or indulgences with respect to the Liabilities, or may apply to
the Liabilities in such order as Lender shall determine, the proceeds of
the Policy assigned or any amount received on account of the Policy by the
exercise of any right permitted under this assignment, without resorting or
regard to other security.
I. In the event of any conflict between the provisions of this assignment and
the provisions of the note or other evidence of any Liability, with respect
to the Policy or rights of collateral security therein, the provisions of
this assignment shall prevail.
J. Grantor declares that no proceedings in bankruptcy are pending against him
and that his property is not subject to any assignment for the benefit or
creditors.
SIGNED AND SEALED THIS 28 DAY OF OCTOBER, 1995
/S/ Xxxxxx. St. Laurent
-----------------------------
Xxxxxx ST. Laurent, III
STATE OF Florida )
)
County of Dade )
This instrument was acknowledged and executed before me this 28 day
of October, 1995, by Xxxxxxx C, St. Laurent.
/S/ Xxxxx Xxxxxx
-----------------------------
Notary Public
OPTION AGREEMENT
EFFECTIVE DATE: October 23, 1995
OPTIONER: XXXXXX St. LAURENT
Xxx Xxxxx Xxxxx, 00, xxxxxx XX - A, lote XXI
Jacareipe, Vitoria, ES, azil
` Xxxxxxxx # 000000000 XXX
OPTIONEE: VITECH AMERICA, INC.
0000 Xxxxxxxxx 00xx Xxxxxx
Xxxxx, Xxxxxxx 00000
RECITALS:
Optionor desires to grant to Optionee an option to purchase certain shares of
capital stock (the "Capital Stock") of VITECH - VITORIA TECNOLOGIA S.A., a
Brazilian company, located at Xxxxxxx Xxxxxxxxxx, x/x, xxxx XX, xxxxxx XIV,
CIVIT II, Laranjeiras, Serra, Espirito Santo (the "Company") on terms and
conditions set forth in this Option Agreement (this "Agreement").
AGREEMENT:
For good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, Optionor and Optionee hereby agree as follows:
1. Grant of Option - Optionor hereby grants an option to Optionee to purchase
that number of Shares of Capital Stock equal to 197.391 (the "Option
Shares") subject to the terms and conditions of this Agreement (the
"Option").
2. Exercise Price - The price payable by the Optionee upon exercise the Option
(the "Exercise Price") shall be US$ 10.00.
3. Exercise of Option - Optionee shall have the right to exercise the Option
subject to the following terms and conditions:
(a) Exercise - The Option may be exercised at any time during the
period beginning on the date hereof and ending on the 6 year
anniversary date following hereof (the "Option Period"). If the period
during which Optionee may exercise the Option has ended, and the Option
has not been exercised, the Option will lapse and any subsequent
attempt to exercise the Option will be of no effect.
(b) Manner of Exercise - The Option shall be exercisable only by an
Optionee giving written notice to the Optionor of its intention to
exercise the Option, which notice shall state the number of Option
Shares as to which this Option is being exercised.
(c) The Closing - The consummation of a purchase of the Option shares
pursuant to an exercise of the Option shall take place at the offices
of the Company on such date as the parties shall agree upon, but in no
event later then ten (10) business days after receipt by Optionor the
notice referred to in Section 3 (b) above (the "Closing date"). At the
closing, Optionee shall deliver to Optionor (I) cash or a cashier's
check for the Exercise Price. None of the Option Shares will be issued
to Optionee until Optionor has received the Exercise Price therefor. In
exchange therefor, Optionor shall convey and transfer the Shares of
Capital Stock. The Company shall reflect the transfer of such Shares of
Capital Stock on its books and records.
4. Adjustment to Shares of Capital Stock - In the event of any reorganization or
recapitalization of the Company (by reclassification of its outstanding shares
of Capital Stock or otherwise), or its consolidation or merger with or into
another corporation, Optionee shall, upon exercise of the Option, be entitled to
receive, in lieu of the shares of Capital Stock which the Optionee would
otherwise be entitled to receive upon such exercise and without any payment in
addition to the aggregate Exercise Price of such shares assuming that no event
specified above had occurred, the shares of stock, cash or other consideration
which the Optionee would have received upon such reorganization,
recapitalization, consolidation or merger if immediately prior thereto to
Optionee had exercised this Option and had exchanged such shares of Capital
Stock in accordance with the terms of such reorganization, recapitalization,
consolidation or merger.
5. Optionor Covenants - Optionor hereby represents, warrants and covenants as
follows:
a. During the Option Period, Optionor will not sell, assign,
transfer, pledge, hypothecate, encumber, alienate of otherwise dispose
of any of the Shares of Capital Stock or make any offer or any attempt
to do any of the foregoing, whether voluntarily, involuntarily or by
operation of law, without first obtaining the written consent of
Optionee. Any disposition or attempted disposition without first
obtaining Optionee"s written consent shall be null and void.
b. During the Option Period, Optionor will not cause the
Company to take any action outside the ordinary course of operations
without the prior written consent of Optionee. Actions which are
deemed to be outside the Company's ordinary course of business and
actions which Optionor covenants no to take or cause the Company take
shall include, but not limited to:
(i) any reorganization, recapitalization, reclassification,
consolidation or merger of the Company;
(ii) any authorization of shares of new capital stock in the
Company or any issuance of capital stock of the Company;
(iii) modification of or amendment to the Articles of
Incorporation or Bylaws of the Company;
(iv) acquisition, sale, lease, exchange, option or other
disposition outside of the ordinary course of business
of any of the company's real or personal (tangible or
intangible) property;
(v) borrowing of money in the Company name from banks, other
lending institutions and other lenders or pledging the
assets of the Company to secure repayment of the
borrowed sums or execute in connection therewith any
notes, deeds of trust or other loan documents required
by any lender;
(vi) obtaining replacements of any loan or encumbrance(s)
related in any way to the Company's assets and/or the
Company business or preparing in whole or in part,
refinancing, recasting, increasing, modifying,
consolidating, waiving any rights with respect to or
extending any loan or encumbrance affecting such
properties and/or the Company business;
(vii) causing the Company to enter into contracts with
Optionor;
(viii) altering the primary purpose of the Company
6. Notices - All notices provided for herein shall be in writing and shall be
(a) personally delivered or delivered by courier service (e.g., Federal Express)
to the party being notified if an individual, or (b) transmitted by certified or
registered mail, return receipt requested, addressed
If to Optionor: Xxxxxxx Xxxxxxxxxx Xxxxx Xxxx, 0000, cj. 51
00000-000 Xxx Xxxxx, XX, Xxxxxx
att: Xx. Xxxx Xxxxxxx Pernomian Xxxxxxxxx
If to Optionee: 0000 Xxxxxxxxx 00xx Xxxxxx
Xxxxx, Xxxxxxx 00000
or at such other address as the party who is to receive such notice may
designate in writing. Notice shall be deemed effective and received upon (I) the
date of receipt if delivered by courier or by personal deliver, or (ii) seven
(7) days after the deposit of same in a letter box or other meas provided for
the posting of maik, postage prepaid as provided above.
7. Successors and Assigns - This Agreement shall be binding upon ind inure to
the benefit to the parties hereto and their rerspective successors, legal
representatives, executors and heirs; provided, however, that no party hereto
shall have the right to assign any right hereunder or delegate any obligation
hereunder, in whole or in part, without the prior written consent of the other
party hereto, and any attempt to to do so shall be Void.
8. Amendment, Modification or Waiver - No amendment, modification or waiver of
any condition, provision or term of thes Agreement shall be valid or of any
effect unless made in writing, signed by the party to be bound and specifying
with particularity the nature and extent of such amendment, modification or
waiver.
9. Entire Agreement - This Agreement contains the entire understanding and
agreement of the parties hereto with respect to the subject matter hereof and
supersedes all prior agreement and understandings between the parties with
respect to such subject matter.
10. Florida Law to Govern - This Agreement shall be governed by, and construed
and enforced in accordance with, the law of the State of Florida.
11. Attorney's Fees - In the event any party hereto brings any action to enforce
any provision hereof, or to secure specific performance hereof or to collect any
damages of any kind for any breach of this Agreement, the prevailing party shall
be intitled to all courts costs, all expenses arising out of or incurred by
reason of litigation and any reasonable attorney's fees expended or incurred for
any such proceedings.
12. Severability - Each provision of this Agreement is intended to be severable,
and the invalidity or unenforceability of one or more provisions of this
Agreement shall not affect the validity and enforceability of the other
provision. Should any valid federal or Florida state law or final determination
of any administrative agency or court of competent jurisdiction affect any
provision of this Agreement, the provision or provisions so affected shall be
automatically conformed to the law or determination and otherwise this Agreement
shall continue in full force and effect.
13. Counterterparts - This Agreement may be executed in two (2) or more
counterparts, each of which shall be considered one in the same agreement and
shall become effective when one or more counterparts have been found by each of
the parties hereto and delivered to the other parties hereto.
14. Witholding - Optionee authorizes Optionor to withold in accordance eith
applicable law from any regular cash compensation payable to him any taxes
required bo be witheld by Optionor under federal, state or local law as a result
of its exercise of the Option.
IN WITNESS WHEREOF, the parties have executed this Agreement on the Effective
Date.
VITECH AMERICA, INC., a Xxxxxxx Corporation
By: /S/ Xxxxxxx St. Laurent
--------------------------------
Xxxxxxx St. Laurent, President
(Optionee)
/S/ Xxxxxxx St. Laurent
---------------------------------
XXXXXXX ST. LAURENT, Personally
(Optionor)
OPTION AGREEMENT
EFFEC TIVE DATE: October 23, 1995
OPTIONER: XXXXXXX St. LAURENT
0000 Xxxxxxxx Xxxx
Xxxxxxx Xxxxx, Xxxxxxx, XXX
` Passport # __________________
OPTIONEE: VITECH AMERICA, INC.
0000 Xxxxxxxxx 00xx Xxxxxx
Xxxxx, Xxxxxxx 00000
RECITALS:
Optionor desires to grant to Optionee an option to purchase certain shares of
capital stock (the "Capital Stock") of VITECH - VITORIA TECNOLOGIA S.A., a
Brazilian company, located at Xxxxxxx Xxxxxxxxxx, x/x, xxxx XX, xxxxxx XIV,
CIVIT II, Laranjeiras, Serra, Espirito Santo (the "Company") on terms and
conditions set forth in this Option Agreement (this "Agreement").
AGREEMENT:
For good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, Optionor and Optionee hereby agree as follows:
1. Grant of Option - Optionor hereby grants an option to Optionee to purchase
that number of Shares of Capital Stock equal to 205,065 (the "Option
Shares"), subject to the terms and conditions of this Agreement (the
"Option).
2. Exercise Price - The price payable by the Optionee upon exercise the Option
(the "Exercise Price") shall be US$ 10.00.
3. Exercise of Option - Optionee shall have the right to exercise the Option
subject to the following terms and conditions:
(a) Exercise - The Option may be exercised at any time during the
period beginning on the date hereof and ending on the 6 year
anniversary date following hereof (the "Option Period"). If the period
during which Optionee may exercise the Option has ended, and the Option
has not been exercised, the Option will lapse and any subsequent
attempt to exercise the Option will be of no effect.
(b) Manner of Exercise - The Option shall be exercisable only by an
Optionee giving written notice to the Optionor of its intention to
exercise the Option, which notice shall state the number of Option
shares as to which this Option is being exercise.
(c) The Closing - The consummation of a purchase of the Option shares
pursuant to an exercise of the Option shall take place at the offices
of the Company on such date as the parties shall agree upon, but in no
event later then ten (10) business days after receipt by Optionor the
notice referred to in Section 3 (b) above (the "Closing date"). At the
closing, Optionee shall deliver to Optionor (I) cash or a cashier's
check for the Exercise Price. None of the Option Shares will be issued
to Optionee until Optionor has received the Exercise Price therefor. In
exchange therefor, Optionor shall convey and transfer the Shares of
Capital Stock. The Company shall reflect the transfer of such Shares of
Capital Stock on its books and records.
4. Adjustment to Shares of Capital Stock - In the event of any
reorganization or recapitalization of the Company (by reclassification of its
outstanding shares of Capital Stock or otherwise), or its consolidation or
merger with or into another corporation, Optionee shall, upon exercise of the
Option, be entitled to receive, in lieu of the shares of Capital Stock which the
Optionee would otherwise be entitled to receive upon such exercise and without
any payment in addition to the aggregate Exercise Price of such shares assuming
that no event specified above had occurred, the shares of stock, cash or other
consideration which the Optionee would have received upon such reorganization,
recapitalization, consolidation or merger if immediately prior thereto to
Optionee had exercised this Option and had exchanged such shares of Capital
Stock in accordance with the terms of such reorganization, recapitalization,
consolidation or merger.
5. Optionor Covenants _ Optionor hereby represents, warrants and covenants as
follows:
a. During the Option Period, Optionor will not sell, assign,
transfer, pledge, hypothecate, encumber, alienate of otherwise dispose
of any of the Shares of Capital Stock or make any offer or any attempt
to do any of the foregoing, whether voluntarily, involuntarily or by
operation of law, without first obtaining the written consent of
Optionee. Any disposition or attempted disposition without first
obtaining Optionee"s written consent shall be null and void.
b. During the Option Period, Optionor will not cause the
Company to take any action outside the ordinary course of operations
without the prior written consent of Otionee. Actions which are deemed
to be outside the Company's ordinary course of business and actions
which Optionor covenants no to take or cause the Company take shall
include, but not limited to:
(i) any reorganization, recapitalization, reclassification,
consolidation or merger of the Company;
(ii) any authorization of shares of new capital stock in the
Company or any issuance of capital stock of the Company;
(iii) modification of or amendment to the Articles of
Incorporation or Bylaws of the Company;
(iv) acquisition, sale, lease, exchange, option or other
disposition outside of the ordinary course of business
of any of the company's real or personal (tangible or
intangible) property;
(v) borrowing of money in the Company name from banks, other
lending institutions and other lenders or pledging the
assets of the Company to secure repayment of the
borrowed sums or execute in connection therewith any
notes, deeds of trust or other loan documents required
by any lender;
(vi) obtaining replacements of any loan or encumbrance(s)
related in any way to the Company's assets and/or the
Company business or preparing in whole or in part,
refinancing, recasting, increasing, modifying,
consolidating, waiving any rights with respect to or
extending any loan or encumbrance affecting such
properties and/or the Company business;
(vii) causing the Company to enter into contracts with
Optionor;
(viii) altering the primary purpose of the Company
6. Notices - All notices provided for herein shall be in writing and
shall be (a) personally delivered or delivered by courier service (e.g., Federal
Express) to the party being notified if an individual, or (b) transmitted by
certified or registered mail, return receipt requested, addressed
If to Optionor: Xxxxxxx Xxxxxxxxxx Xxxxx Xxxx, 0000, cj. 51
00000-000 Xxx Xxxxx, XX, Xxxxxx
att: Xx. Xxxx Xxxxxxx Pernomian Xxxxxxxxx
If to Optionee: 0000 Xxxxxxxxx 00xx Xxxxxx
Xxxxx, Xxxxxxx 00000
or at such other address as the party who is to receive such notice may
designate in writing. Notice shall be deemed effective and received upon (I) the
date of receipt if delivered by courier or by personal deliver, or (ii) seven
(7) days after the deposit of same in a letter box or other meas provided for
the posting of maik, postage prepaid as provided above.
7. Successors and Assigns - This Agreement shall be binding upon ind
inure to the benefit to the parties hereto and their rerspective successors,
legal representatives, executors and heirs; provided, however, that no party
hereto shall have the right to assign any right hereunder or delegate any
obligation hereunder, in whole or in part, without the prior written consent of
the other party hereto, and any attempt to to do so shall be boid.
8. Amendment, Modification or Waiver - No amendment, modification or
waiver of any condition, provision or term of thes Agreement shall be valid or
of any effect unless made in writing, signed by the party to be bound and
specifying with particularity the nature and extent of such amendment,
modification or waiver.
9. Entire Agreement - This Agreement contains the entire understanding
and agreement of the parties hereto with respect to the subject matter hereof
and supersedes all prior agreement and understandings between the parties with
respect to such subject matter.
10. Florida Law to Govern - This Agreement shall be governed by, and
construed and enforced in accordance with, the law of the State of Florida.
11. Attorney's Fees - In the event any party hereto brings any action
to enforce any provision hereof, or to secure specific performance hereof or to
collect any damages of any kind for any breach of this Agreement, the prevailing
party shall be intitled to all courts costs, all expenses arising out of or
incurred by reason of litigation and any reasonable attorney's fees expended or
incurred for any such proceedings.
12. Severability - Each provision of this Agreement is intended to be
severable, and the invalidity or unenforceability of one or more provisions of
this Agreement shall not affect the validity and enforceability of the other
provision. Should any valid federal or Florida state law or final determination
of any administrative agency or court of competent jurisdiction affect any
provision of this Agreement, the provision or provisions so affected shall be
automatically conformed to the law or determination and otherwise this Agreement
shall continue in full force and effect.
13. Counterterparts - This Agreement may be executed in two (2) or more
counterparts, each of which shall be considered one in the same agreement and
shall become effective when one or more counterparts have been found by each of
the parties hereto and delivered to the other parties hereto.
14. Witholding - Optionee authorizes Optionor to withold in accordance
eith applicable law from any regular cash compensation payable to him any taxes
required bo be witheld by Optionor under federal, state or local law as a result
of its exercise of the Option.
IN WITNESS WHEREOF, the parties have executed this Agreement on the Effective
Date.
VITECH AMERICA, INC., a Xxxxxxx Corporation
By: /S/ Xxxxxxx St. Laurent
--------------------------------
Xxxxxxx St. Laurent, President
(Optionee)
/S/ Xxxxxxx St. Laurent
--------------------------------
XXXXXXX ST. LAURENT, Personally
(Optionor)
REGISTRATION AGREEMENT
Effective Date: October 28, 1995
Parties: XXXXXX FINANCIAL INCORPORATED, a Nevada corporation
("Meris")
VITECH AMERICA, INC., a Florida corporation
("Vitech")
Purpose:
Contemporaneously with this Registration Agreement (this "Agreement"),
Meris is making a loan to Vitech in the original principal amount of Two Million
Dollar ($2,000,000.00) (the "Loan") , which loan is evidenced by a Promissory
Note (the "Note") dated of even date herewith executed by Borrower to the order
of Lender. The principal balance under the Note is convertible ("Conversion")
into voting common stock , no par value, of Vitech (the "Common Stock") and
other capital stock, if any. In the event of a Conversion of principal under the
Note, Vitech desires to grant certain rights to Meris with respect to the
registration of capital stock of Vitech (the " Capital Stock").
Agreements:
For good and valuable consideration, the receipt and sufficient of
which are hereby acknowledged, Meris and Vitech hereby agree that in the event
that Meris: (a) secures an underwriter to sell shares of Capital Stock of Vitech
pursuant to a public offering; and (b) the underwriting is based upon a
valuation of $100,000,000 or other valuation acceptable to the Board of
Directors of Vitech,, then Vitech will as expeditiously as practicable:
(a) prepare and file with the Securities and Exchange Commission a registration
statement with respect to the Capital Stock and use its reasonable efforts
to cause such registration statement to become effective (provided that
before filing a registration statement or prospectus or any amendments or
supplements thereto, Vitech will furnish to the Meris copies of all such
documents proposed to be filed);
(b) prepare and file with the Securities and Exchange Commission such
amendments and supplements to such registration statement and the
prospectus used in connection therewith as may be necessary to keep such
registration statement effective for a period of not less than sixty (60)
days; and
(c) use its reasonable efforts to register or qualify such Capital Stock under
such other securities or blue sky laws of such jurisdictions as Vitech deems
appropriate.
2. Miscellaneous.
(a) No Inconsistent Agreements. Vitech will not hereafter enter into
any agreement with respect to its securities that is inconsistent
with the rights granted to Meris in this Agreement.
(b) Notices. All notices or communications required or permitted by
this Agreement shall be in writing, and shall be deemed to have
been duly given, made and received when delivered against receipt
or upon actual receipt of United States first class registered or
certified mail, postage prepaid, return receipt requested,
addressed as set forth below:
If to a Meris: 000 Xxxxx Xxxxxxxxx
Xxxxx 000X
Xxxxxxx Xxxxxxx, Xxxxxx 00000
If to Vitech: 0000 Xxxxxxxxx 00xx Xxxxxx
Xxxxx, Xxxxxxx 00000
Any party may alter the person or address to which communications or
copies are to be sent by giving notice of that change in conformity with the
provisions of this paragraph for the giving of notice. Notice shall be deemed
effective and received upon : (I) the date of receipt if delivered by courier or
by personal delivery, or (ii) seven (7) days after the deposit of same in a
letter box or other means provided for the deposit of mail, postage prepaid as
provided above.
(c) Amendments and Waivers. Except as otherwise provided herein, the
provisions of this Agreement may be amended only with the prior
written consent of all of the parties.
(d) Successors and Assigns. The provisions of this Agreement are for
the benefit or Meris and its successors and assigns.
(e) Severability. Whenever possible, each provision of this Agreement
will be interpreted in such manner as to be effective and valid
under applicable law, but if any provision of this Agreement is
held to be prohibited by or invalid under applicable law, such
provision will be ineffective only to the extent of such provision
of invalidity, without invalidating the remainder of this
Agreement.
(f) Counterparts. This Agreement may be executed simultaneously in any
number of counterparts, none of which need contain the signature
of the other parties, but all such counterparts taken together
will constitute one and the same Agreement.
(g) Governing Law. This Agreement will be construed in accordance with
Florida Law.
(h) Entire Agreement. This Agreement constitutes the entire agreement
among the parties hereto and superseded all prior agreements and
understandings, oral and written, among the parties hereto and/or
their respective affiliates with respect to the subject matter
hereof.
IN WITNESS WHEREOF, the parties have executed this Agreement on the
date first written above.
VITECH AMERICA, INC., a Florida corporation
Vitech America, Inc.
Corporate Seal By: /S/ Xxxxxxx St. Laurent
--------------------------------
Xxxxxxx St. Laurent, President
XXXXXX FINANCIAL INCORPORATED, a
Nevada corporation
By:
--------------------------------
Xxxxxxxx X. Xxxxx, President
STOCK OPTION AGREEMENT
EFFECTIVE DATE: OCTOBER 28, 1995
OPTIONOR: Vitech America, Inc.
0000 Xxxxxxxxx 00xx Xxxxxx
Xxxxx, Xxxxxxx 00000
OPTIONEE: Meris Financial Incorporated
000 Xxxxx Xxxxxxxxx
Xxxxx 000X
Xxxxxxx Xxxxxxx, Xxxxxx 00000
RECITALS;
Optionor desires to grant to Optionee an option to purchase certain
shares of capital stock (the "Capital Stock") of Optionor on the terms and
conditions set forth in this Stock Option Agreement (this "Agreement").
AGREEMENT
For good and valuable consideration, the receipt and sufficient of
which are hereby acknowledged, Optionor and Optionee hereby agree as follows:
1. Grant of Option. Optionor hereby grants a stock option to
Optionee to purchase that number of shares of Capital Stock equal
to four percent (4%) (to be determined on the Closing Date, as
that term is defined below), of the shares of Capital issued
(beneficially or otherwise) or issuable (beneficially or
otherwise) by Optionor upon the exercise of any outstanding
option, warrant, contract, agreement or arrangement to issue or
sell any capital stock or any other security of Optionor or any
other security exercisable or convertible into any capital stock
or any other security of Optioneor (the "Option Shares"), subject
to the terms and conditions of this agreement (the "Option").
2. Exercise Price. The price payable by Optionee upon exercise of
the Option (the "Exercise Price") shall be $2,000,000.
3. Exercise of Option. Optionee shall have the right to exercise the
Option subject to following terms and conditions:
(a) Exercise. The Option may be exercised at any time during
the period beginning on the Effective date and ending on
the 18th month anniversary date following the Effective
Date (the "Option Period"). If the period during which
Optionee may exercise the Option has ended, and the Option
has not been exercised, the Option will lapse and any
subsequent attempt to exercise the Option will be of no
effect.
(b) Manner of Exercise. The Option shall be exercisable only
by an Optionee given written notice to the Optionor of its
intention to exercise the Option, which notice shall state
the number of shares of Option Shares as to which this
Option is being exercised.
(c) The Closing. The consummation of a purchase of Option
Shares pursuant to an exercise of the Option shall take
place at the offices of Optionor on such date as the
parties shall agree upon but in no event later than ten
(10) business days after receipt by Optionor of the notice
referred to in Section 4(b) above (the "Closing Date"). At
the closing, Optionee shall deliver to Optionor (i) cash
or a cashier's check for the Exercise Price. None of the
Option Shares will be issued to Optionee until Optionor
has received the Exercise Price therefor. In exchange
therefor, Optionor shall convey and transfer the Option
Shares. Optionor shall reflect the transfer of such Option
Shares on its books and records.
1. Adjustment to Option Shares. In the event of any reorganization
or recapitalization of Optionor (by reclassification of its
outstanding shares of Capital Stock or otherwise), or its
consolidation or merger with or into another corporation,
Optionee shall, upon exercise of the Option, be entitled to
receive, in lieu of the shares of Capital Stock which the
Optionee would otherwise be entitled to receive upon such
exercise and without any payment in addition to the aggregate
Exercise and without any payment in addition to the aggregate
Exercise Price for such shares assuming that no event specified
above had occurred, the shares of stock, cash or other
consideration which the Optionee would have received upon such
reorganization, recapitalization, consolidation or merger if
immediately prior thereto the Optionee had exercised this Option
and had exchanged such Option Shares in accordance with the terms
of such reorganization, recapitalization, consolidation or
merger.
2. Optionor's Covenants. Optionor hereby represents, warrants and
covenants that during the Option Period, Optionor shall reserve
that number of shares necessary to fulfill its obligations
hereunder.
3. Notices. All notices provided for herein shall be in writing and
shall be (a) personally delivered or delivered by courier service
(e.g., Federal Express) to the party being notified if an
individual, or (b) transmitted by certified or registered mail,
return receipt requested, addressed
If to a Meris: 000 Xxxxx Xxxxxxxxx
Xxxxx 000X
Xxxxxxx Xxxxxxx, Xxxxxx 00000
If to Vitech 0000 Xxxxxxxxx 00xx Xxxxxx
Xxxxx, Xxxxxxx 00000
or at such address as the party who is to receive such notice may
designate in writing. Notice shall be deemed effective and received
upon: (i) the date of receipt if delivered by courier or by personal
delivery, or (ii) seven (7) days after the deposit of same in a letter
box or other means provided for the posting of mail, postage prepaid as
provided above.
7. Successors and Assigns. This Agreement shall be binding upon and
inure to the benefit of the parties hereto and their respective
successors, legal representatives, executors and heirs' provided,
however, that no party hereto shall have the right to assign any
right hereunder or delegate any obligation hereunder, in whole or
in part, without the prior written consent of the other party
hereto, and any attempt to so shall be void.
8. Amendment. Modification or Waiver. No amendment, modification or
waiver of any condition, provision or term of this Agreement
shall be valid or of any effect unless made in writing, signed by
the party to be bound and specifying with particularity the
nature and extent of such amendment, modification or waiver.
9. Entire Agreement. This agreement contains the entire
understanding and agreement of the parties hereto with respect to
the subject matter hereof and supersedes all prior agreements and
understandings between the parties with respect to such subject
matter.
10. Florida Law to Govern. This Agreement shall be governed by, and
construed and enforced in accordance with, the law of the State
of Florida.
11. Attorney's Fees. In the event any party hereto brings any action
to enforce any provision hereof, or to secure specific
performance hereof or to collect any damages of any kind for any
breach of this Agreement, the prevailing party shall be entitled
to all court costs, all expenses arising out of or incurred by
reason of litigation and any reasonable attorney's fees expended
or incurred for any such proceeding.
12. Severability. Each provision of this Agreement is intended to be
severable, and the invalidity or unenforceability of one or more
provisions of this agreement shall not affect the validity and
enforceability of the other provision. Should any valid federal
or Utah state law or final determination of any administrative
agency or court of competent jurisdiction affect any provision of
this agreement, the provision or provisions so affected shall be;
automatically conformed to the law or determination and
otherwise this agreement shall continue in full force and effect.
13. Counterparts. This agreement may be executed in two (2) or more
counterparts, each of which shall be considered one in the same
agreement and shall become effective when one or more
counterparts have been found by each of the parties hereto and
delivered to the other parties hereto.
14. Withholding. Optionee authorizes Optionor to withhold in
accordance with applicable law from any regular cash compensation
payable to him any taxes required to be withheld by Optionor
under federal, state or local law as a result of its exercise of
Option.
IN WITNESS WHEREOF, the parties have executed this Agreement on the
Effective Date.
MERIS FINANCIAL INCORPORATED, a
Nevada limited partnership
By:
--------------------------------
Xxxxxxxx X. Xxxxx, President
(Optionee)
VITECH AMERICA, INC., a Florida
corporation
Vitech America, Inc. By: /S/ Xxxxxxx St. Laurent
Corporate Seal --------------------------------
Xxxxxxx St. Laurent, President
(Optionor)
STOCK OPTION AGREEMENT
EFFECTIVE DATE: OCTOBER 28, 1995
OPTIONOR: Vitech America, Inc.
0000 Xxxxxxxxx 00xx Xxxxxx
Xxxxx, Xxxxxxx 00000
OPTIONEE: Monolith Limited Partnership
0000 Xxxxxxxx Xxxxxxx
Xxxxx 0000
Xxxxxxxxx, Xxxxxx 00000
RECITALS:
Optionor desires to grant to Optionee an option to purchase certain
shares of capital stock (the "Capital Stock") of Optionor on the terms and
conditions set forth in this Stock Option Agreement (this "Agreement").
AGREEMENT
For good and valuable consideration, the receipt and sufficient of
which are hereby acknowledged, Optionor and Optionee hereby agree as follows:
1. Grant of Option. Optionor hereby grants a stock option to Optionee
to purchase that number of shares of Capital Stock equal to one
percent (1%) (to be determined on the Closing Date, as that term
is defined below), of the shares of Capital issued (beneficially
or otherwise) or issuable (beneficially or otherwise) by Optionor
upon the exercise of any outstanding option, warrant contract,
agreement or arrangement to issue or sell any capital stock or any
other security of Optionor or any other security exercisable or
convertible into any capital stock or any other security of
Optioneor (the "Option Shares"), subject to the terms and
conditions of this agreement.
2. Exercise Price. The price payable by Optionee upon exercise of
the Option (the "Exercise Price") shall be $2,000,000.
3. Exercise of Option. Optionee shall have the right to exercise the
Option subject to following terms and conditions:
(a) Exercise. The Option may be exercised at any time during
the period beginning on the Effective date and ending on
the 18th month anniversary date following the Effective
Date (the "Option Period"). If the period during which
Optionee may exercise the Option has ended, and the Option
has not been exercised, the Option will lapse and any
subsequent attempt to exercise the Option will be of no
effect.
(b) Manner of Exercise. The Option shall be exercisable only
by an Optionee given written notice to Optionor of its
intention to exercise the Option, which notice shall state
the number of shares of Option Shares as to which this
Option is being exercised.
(c) The Closing. The consummation of a purchase of Option
Shares pursuant to an exercise of the Option shall take
place at the offices of Optionor on such date as the
parties shall agree upon but in no event later than ten
(10) business days after receipt by Optionor of the notice
referred to in Section 4(b) above (the "Closing Date"). At
the closing, Optionee shall deliver to Optionor (i) cash
or a cashier's check for the Exercise Price. None of the
Option Shares will be issued to Optionee until Optionor
has received the Exercise Price therefor. In exchange
therefor, Optionor shall convey and transfer the Option
Shares. Optionor shall reflect the transfer of such Option
Shares on its books and records.
1. Adjustment to Option Shares. In the event of any reorganization
or recapitalization of Optionor (by reclassification of its
outstanding shares of Capital Stock or otherwise), or its
consolidation or merger with or into another corporation,
Optionee shall, upon exercise of the Option, be entitled to
receive, in lieu of the shares of Capital Stock which the
Optionee would otherwise be entitled to receive upon such
exercise and without any payment in addition to the aggregate
Exercise and without any payment in addition to the aggregate
Exercise Price for such shares assuming that no event specified
above had occurred, the shares of stock, cash or other
consideration which the Optionee would have received upon such
reorganization, recapitalization, consolidation or merger if
immediately prior thereto the Optionee had exercised this Option
and had exchanged such Option Shares in accordance with the terms
of such reorganization, recapitalization, consolidation or
merger.
2. Optionor's Covenants. Optionor hereby represents, warrants and
covenants that during the Option Period, Optionor shall reserve
that number of shares necessary to fulfill its obligations
hereunder.
3. Notices. All notices provided for herein shall be in writing and
shall be (a) personally delivered or delivered by courier service
(e.g., Federal Express) to the party being notified if an
individual, or (b) transmitted by certified or registered mail,
return receipt requested, addressed
If to a Monolith: 0000 Xxxxxxxx Xxxxxxx
Xxxxx 0000
Xxxxxxxxx, Xxxxxx 00000
If to Vitech 0000 Xxxxxxxxx 00xx Xxxxxx
Xxxxx, Xxxxxxx 00000
or at such address as the party who is to receive such notice may
designate in writing. Notice shall be deemed effective and received
upon: (I) the date of receipt if delivered by courier or by personal
delivery, or (ii) seven (7) days after the deposit of same in a letter
box or other means provided for the posting of mail, postage prepaid as
provided above.
7. Successors and Assigns. This Agreement shall be binding upon and
inure to the benefit of the parties hereto and their respective
successors, legal representatives, executors and heirs' provided,
however, that no party hereto shall have the right to assign any
right hereunder or delegate any obligation hereunder, in whole or
in part, without the prior written consent of the other party
hereto, and any attempt to so shall be void.
8. Amendment. Modification or Waiver. No amendment, modification or
waiver of any condition, provision or term of this Agreement
shall be valid or of any effect unless made in writing, signed by
the party to be bound and specifying with particularity the
nature and extent of such amendment, modification or waiver.
9. Entire Agreement. This agreement contains the entire
understanding and agreement of the parties hereto with respect to
the subject matter hereof and supersedes all prior agreements and
understandings between the parties with respect to such subject
matter.
10. Florida Law to Govern. This Agreement shall be governed by, and
construed and enforced in accordance with, the law of the State
of Florida.
11. Attorney's Fees. In the event any party hereto brings any action
to enforce any provision hereof, or to secure specific
performance hereof or to collect any damages of any kind for any
breach of this Agreement, the prevailing party shall be entitled
to all court costs, all expenses arising out of or incurred by
reason of litigation and any reasonable attorney's fees expended
or incurred for any such proceeding.
12. Severability. Each provision of this Agreement is intended to be
severable, and the invalidity or unenforceability of one or more
provisions of this agreement shall not affect the validity and
enforceability of the other provision. Should any valid federal
or Utah state law or final determination of any administrative
agency or court of competent jurisdiction affect any provision of
this agreement, the provision or provisions so affected shall be;
automatically conformed to the law or determination and otherwise
this agreement shall continue in full force and effect.
13. Counterparts. This agreement may be executed in two (2) or more
counterparts, each of which shall be considered one in the same
agreement and shall become effective when one or more
counterparts have been found by each of the parties hereto and
delivered to the other parties hereto.
14. Withholding. Optionee authorizes Optionor to withhold in
accordance with applicable law from any regular cash compensation
payable to him any taxes required to be withheld by Optionor
under federal, state or local law as a result of its exercise of
Option.
IN WITNESS WHEREOF, the parties have executed this Agreement
on the Effective Date.
MONOLITH LIMITED PARTNERSHIP, a
Delaware limited partnership
By: WGM Corporation , a Delaware
corporation
The General Partner
By:
------------------------------
Xxxxxxx X. Xxxxx, President
(Optionee)
VITECH AMERICA, INC., a Florida
corporation
Vitech America, Inc By: /S/ Xxxxxxx St. Laurent
Corporate Seal ---------------------------------
Xxxxxxx St. Laurent,
President
(Optionor)
MODIFICATION AGREEMENT
THIS MODIFICATION AGREEMENT (this "Modification Agreement"), is made and entered
into this 20th day of July, 1996 by and between MERIS FINANCIAL INCORPORATED, a
Nevada corporation ("Lender"), and VITECH AMERICA, INC., a Florida corporation
("Borrower").
RECITALS:
WHEREAS, Lender and Borrower made and entered into a Loan Agreement as
of October 28, 1995 (the "Loan Agreement"), pursuant to which Lender made
available a loan to the Borrower in the principal amount of $2,000,000 (the
"Loan") which was evidenced by a certain Promissory Note dated October 28, 1995
(the "Note") and secured by various documents and instruments provided in,
attached to or referred to in the Agreement and related documents, including,
but not limited to, a Security Agreement, and Unconditional Guaranty by Xxxxxxx
and Xxxxx St. Laurent, and Unconditional Guaranty by Georges St. Laurent, III,
Stock Pledge Agreements, a Quotas Pledge Agreement, a Collateral Assignment of
Option Agreements, and Assignments of Life Insurance Policy, all executed and
delivered by Borrower and/or its principals and/or Lender as of October 28, 1995
(collectively, the "Collateral Documents");
WHEREAS, further in connection with the Loan, Borrower and/or its
principals executed and delivered as of October 28, 1995 that certain Stock
Option Agreement for the purchase of 4% capital stock interest in Borrower, that
certain Stock Option Agreement for the purchase of 1% capital stock interest in
Borrower, and that certain Registration Agreement )collectively, the "Stock
Rights Documents");
WHEREAS, as provided in the Loan Agreement and the Note, the Loan of
$2,000,000 and any unpaid interest is due and payable on October 28, 1997;
WHEREAS, certain understandings and certain potential financings to be
undertaken with the assistance of the Borrower cannot be consummated on terms
satisfactory to the parties and, as a consequence thereof, the parties wish to
restructure the terms of the Loan Agreement, the Note and related documents in
order to effectuate an orderly termination of the relationship between the
parties.
NOW, THEREFORE, in consideration of the mutual convenants, agreements
and undertakings contained in this Modification Agreement, the parties hereto
agree as follows:
1. In lieu of payment of the entire principal amount of the Loan of
$2,000,000 on October 28, 1997, the Borrower shall make payments
in accordance with the attached Schedule 1. Section 7 of the Note
is hereby amended to provide that Borrower may prepay the Loan in
either the installments provided for in Section 1 above or in such
greater installments or amounts in the discretion of Borrower.
2. Section 5 of the Note provides for the conversation of the
principal amount of the Note into common stock of the Borrower in
accordance with the provisions of Section 5 of the Note. So long
as the Borrower makes the payments required by Section 1 above
when due, Lender agrees not to exercise any conversion right
granted under Section 5 of the Note and agrees that if, on or
before November 1, 1996, the Borrower has paid to lender the
outstanding principal balance under the Note, together with all
accrued and unpaid interest thereon, then the conversion rights
will be null and void and of no force or effect.
3. So long as the Borrower makes the payments required by Section 1
above when due, Lender agrees not to exercise any right or
privilege under the Stock Rights Documents and agrees if, on or
before November 1, 1996, the Borrower has paid to Lender the
outstanding principal balance under the Note, together with all
accrued ;and unpaid interest thereon, then the Stock Rights
Documents will be null and void and of no force or effect.
4. As provided under the terms of the Loan Agreement and Collateral
Documents, upon payment of the principal amount and accrued and
unpaid interest due and owing under the Loan, the various
instruments, security, assignments and collateral made available
and provided by the Borrower shall be terminated and/or reassigned
to the Borrower.
5. Except as modified or amended herein, the terms and conditions of
the Loan Agreement, the Note, the Collateral Documents and the
Stock Rights Documents shall remain in full force and effect.
6. Lender's acceptance of this Modification Agreement is contingent
upon:
a. delivery by Borrower of the stock certificates issued by
Borrower to Xxxxxxx X. St. Laurent, Georges St. Laurent,
III, Xxxxxxxx St. Laurent , and Alexander St. Laurent,
to be tendered and held in accordance with that certain
Stock Pledge Agreement dated October 28, 1995; and
b. delivery by Borrower of a duplicate copy of this
Modification Agreement, originally executed by Borrower,
together with a check made payable to Lender, dated no
later than July 20, 1996, in the amount of $20,000 and a
check made payable to Lender, dated no later than August
1, 1996, in the amount of $100,000 (as and for the first
two payments set forth on the attached Schedule 1),
and if the same are not delivered to Lender at 0000 Xxxx Xxxxxxx, Xxxxx 000,
Xxxxxxxxxx, Xxxxxxx 00000, by federal express delivery on July 22, 1996, then
this Agreement shall be null and void.
7. In the event that Borrower fails to perform as required hereunder
and such failure is not cured by 5:00 Phoenix, Arizona time on the
next business day after performance was required then Lender shall
have the absolute right, without notice to Borrower, at Lender's
option and election and in its sole discretion, to exercise any
and all remedies at law, in equity or under the Note, the Loan
Agreement and The Collateral Documents.
IN WITNESS WHEREOF, the parties hereto have executed this Modification
Agreement as of the day and year first above written
VITECH AMERICA, INC., a Florida corporation
By: /S/ Xxxxxxxx X. Xxxxx
-----------------------------------------
Xxxxxxxx X. Xxxxx, Vice-President
MERIS FINANCIAL INCORPORATED,
a Nevada corporation
By: /S/ Xxxxxxxx X. Xxxxx
------------------------------------------
Xxxxxxxx X. Xxxxx, President
Schedule 1
Repayment Schedule
Date Payment*
---- --------
July 20, 1996 $ 20,000
August 1, 1996 $100,000
August 15, 1996 $ 25,000
August 22, 1996 $ 25,000
August 29, 1996 $ 50,000
September 5, 1996 $ 25,000
September 12, 1996 $ 25,000
September 19, 1996 $ 25,000
September 26, 1996 $ 50,000
October 3, 1996 $ 25,000
October 10, 1996 $ 25,000
October 17, 1996 $ 25,000
October 24, 1996 $ 25,000
November 1, 1996 $ **
Each payment (except the first two) shall be made by wire
transfer to the following account and shall be applied first
to accrued interest and then to principal outstanding:
Bank of America
0000 Xxxx Xxxxxx
Xxxx, Xxxxxx 00000
(000) 000 0000
ABA Routing Number: 000000000
Account Number: 961014123
an amount equal to the outstanding principal balance together
with all accrued and unpaid interest and other charges due and
owing under the Collateral Documents