PUT AND CALL AGREEMENT
This PUT AND CALL AGREEMENT (this "Agreement") dated as of July 13,
1999, is entered into by and among VITECH AMERICA, INC. (the "Company"), a
Florida corporation, and BRAZIL PARTNERS LIMITED, a Grand Cayman, British West
Indies corporation, ( the "Purchaser").
WITNESSETH
WHEREAS, the Purchaser has agreed to purchase $872,957.57 aggregate
principal amount of the Company's 10% Convertible Note due October 10, 2000 (the
"Note");
WHEREAS, the Note is convertible into common stock of the Company (the
"Common Stock") at the conversion price defined in the Note (such Common Stock,
when issued upon conversion of the Note, being referred to herein as "Conversion
Shares"); and
WHEREAS, the Company has agreed to grant the Purchaser certain rights
with respect to the Note and Conversion Shares as an inducement to, and a
condition of, the Purchasers' purchase of the Note.
NOW THEREFORE, the parties hereto agree as follows:
1. Put Option.
(a) Commencing August 1, 1999 (the "First Put Date"), and continuing
for a period of thirty (30) days thereafter, each holder of the Note shall have
the right (the "First Put Right") to request that the Company repurchase all,
but not less than all, of the Note outstanding (the "Put Option") at a price
equal to one hundred and nineteen & 3/10 percent (119.3%) of the principal
amount thereof, plus accrued and unpaid interest thereon (the "Put Price"), by
delivering to the Company a written notice specifying (i) the number of
Conversion Shares that are subject to the Put Option which shall be the entire
amount of the Note of the Noteholder, (ii) the aggregate Put Price, and (iii)
the date, not earlier than twenty (20) Trading Days and not later than thirty
(30) days after the First Put Date, on which the Put Option shall be exercised
(the "First Put Exercise Date").
(b) Commencing October 1, 1999 and continuing for a period of thirty
(30) days thereafter, each holder of the Note shall have a second right (the
"Second Put Right") to request that the Company repurchase all, but not less
than all, of the Note outstanding at a price equal to one hundred and twenty one
& 3/10 percent (121.3%) of the principal amount thereof plus accrued and unpaid
interest thereon (the "Second Put Price" and together with the First Put Right
sometimes referred to collectively as the "Put Rights"), by delivering to the
Company a written notice specifying (i) the number of Conversion Shares that are
subject to the Put Option, (ii) the
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Second Put Price, and (iii) the date, not earlier than twenty (20) days and not
later than thirty (30) days on which the Put Option shall be exercised (the
"Second Put Exercise Date").
(c) Upon receipt by the Company of a notice exercising the First Put
Right and/or Second Put Right, the Company shall, within two (2) days of
receipt of such notice, deliver to each holder of the Note exercising the First
Put Right or Second Put Right, as applicable, a notice stating whether the
Company agrees to repurchase all, but not less than all, of the outstanding Note
subject to the First Put Right or Second Put Right, as applicable. In the event
the Company delivers notice of its agreement to effect such repurchase (a
"Company Acceptance Notice"), the provisions in subsection (d) below shall
apply. In the event the Company declines to repurchase the outstanding Note
subject to the First Put Right and/or Second Put Right, as applicable, the Note
shall remain convertible pursuant to their terms at the option of the holders
thereof.
(d) Assuming the Company has delivered a Company Acceptance Notice, on
the First Put Exercise Date or the Second Put Exercise Date, as applicable, (i)
the Purchaser shall deliver to the Company the Note, properly endorsed,
representing the Note subject to the Put Option, and (ii) the Company shall
deliver to the Purchasers, in immediately available funds, the applicable Put
Price. The purchase price for any Put Right shall be paid in four (4) equal
monthly installments on the last Business Day of each month commencing on the
first full month following the First Put Exercise Date or the Second Put
Exercise Date, as the case may be, with interest on each installment at the rate
of ten percent (10%) per annum.
2. Call Option.
(a) The Company shall have the right, at any time and from time to time
commencing on August 1, 1999 to purchase from any holder of the Note (the "Call
Option") the Note at a call price of one hundred and nineteen & 3/10 percent
(119.3%) of the principal amount, plus accrued and unpaid interest thereon (the
"Call Price") by delivering to the Purchasers a written notice specifying (i)
the number of Conversion Shares that are subject to the Call Option, (ii) the
Call Price, and (iii) the date, not earlier than twenty (20) Trading Days and
not later than thirty (30) days, on which the Call Option shall be exercised
(the "Call Exercise Date"). Commencing on the first day of the month from
September 1, 1999 and on each month thereafter until the Maturity Date, the Call
Price shall be increased by one percent (1%) per month.
(b) On the Call Exercise Date (i) the Purchasers shall deliver to the
Company the Note, properly endorsed, representing the Note subject to the Call
Option and (ii) the Company shall deliver to the Purchasers, in immediately
available funds, the applicable Call Price.
(c) The Call Option provisions described in this Section 2 shall at all
times be subject to (i) the prior Conversion Rights of the Purchasers and (ii)
the shares of Common Stock underlying the Notes must be covered by an effective
resale registration statement pursuant to the
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terms of the Securities Purchase Agreement at the time of the Call Notice and on
the Call Exercise Date.
3. Miscellaneous.
(a) Payment Method. The payment of the Put Price or the Call Price, as
the case may be, shall be made by wire transfer or bank draft in immediately
available funds to each applicable Purchaser.
(b) No Assignment or Transfer. Neither this Agreement, nor the Put
Option or the Call Option granted hereby, nor any other rights under this
Agreement, shall be assignable or transferable, directly or indirectly.
(c) Notices. All notices, requests and demands to or upon the parties
hereto shall be in writing and shall be delivered by any method that shall
provide a written acknowledgment of receipt at the addresses shown below.
If to Vitech America, Inc. Vitech America, Inc.,
0000 Xxxxxxxxx 00xx Xxxxxx
Xxxxx, Xxxxxxx 00000-0000
Attn: Xx. Xxxxxxx St. Laurent
Telefax:
With a copy to: Atlas, Xxxxxxx, Trop & Borkson
New River Center, Ste. 1900
000 Xxxx Xxx Xxxx Xxxx.
Xxxx Xxxxxxxxxx, Xxxxxxx 00000
Attn: Xxxx Xxxxxxxxx, Esq.
Telefax: (000) 000-0000
If to any Purchaser Xxxxx Partners Limited
Picadilly Centre
Suite 10688 - SMB
Grand Cayman, BWI
Attn: Guilherme Tebecherani
For purposes of this Agreement, a "Notice Date" shall be the date which
is two (2) business days after the date on which any notice hereunder is sent by
telecopy (provided, however, that it is telephonically or electronically
confirmed).
(f) Further Assurances. The parties agree to do all things and to
deliver all instruments and documents necessary to accomplish the purposes of
this Agreement, and to
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provide to one another such information and assistance necessary to enable one
another to do the same.
(g) Governing Law. This Agreement and the rights and obligations of the
parties hereunder shall be governed by and construed in accordance with the laws
of the State of New York.
[Signature Page Follows]
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IN WITNESS WHEREOF, the parties have executed this Agreement this 13th
day of July, 1999.
BRAZIL PARTNERS LIMITED
By:
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Title:
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ACCEPTED AND ACKNOWLEDGED:
VITECH AMERICA, INC.
By:
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Title:
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