EXHIBIT 10.15
CAPRIUS, INC.
-------------
UNSECURED PROMISSORY NOTE
-------------------------
$ December 6, 1999
-----------------
(Principal Amount)
CAPRIUS, INC., a Delaware corporation (herein called the "Company",
which term shall also include its successors and assigns), for value
received, hereby promises to pay to the order of or
--------------------------
registered assigns (the "Holder") on February 29, 2000, the principal sum of
($ ), with interest payable at
------------------------------------ ------
maturity at the rate of eleven (11%) percent per annum from the date hereof
until the principal hereof shall become due and payable, and subject to earlier
prepayment, both principal and interest to be payable at the principal office of
the Company at Xxx Xxxxxx Xxxxx, Xxxx Xxx, Xxx Xxxxxx, 00000 or at such other
location as the Company and the Holder may agree upon in writing.
This Note is one of a duly authorized issue of Notes of the Company
limited in aggregate principal amount to $600,000.
This Note is issued with a detachable common stock purchase warrant
evidencing the right initially to purchase one share of Common Stock of
the Company for each $2.00 initial principal amount of this Note, at an initial
exercise price of Twenty Cents ($0.20) per share (the "Warrant").
1. DEFINITION OF TERMS
----------------------
For purposes of this Note, unless the context otherwise requires:
1.1 Business Day. Business Day shall mean a day other than a
------------
Saturday, Sunday or a day when banking institutions in New York City are
authorized by law, regulation or order to remain closed.
1.2 Common Stock. Common Stock shall mean the Company's Common Stock,
------------
$.01 par value, or such securities in which the Common Stock may be exchanged.
1.3 Holder of Record. Holder of Record shall mean in connection with
----------------
any Note the payee thereof unless a subsequent holders shall have presented to
the Company such Note, duly assigned to him and delivered to the Company a
written notice of his acquisition of the Note and designated in writing an
address to which payments and notices in respect of the Note shall be mailed,
in which case the term shall mean such subsequent holder.
1
1.4 Maturity. As used herein the terms "maturity" and "Maturity"
--------
shall mean February 29, 2000 or such earlier or later date on which the
principal amount of this Note becomes payable hereunder.
1.5 Notes. Notes shall mean, collectively, this Note and the other
-----
Notes of a duly authorized issue of notes of the Company limited in aggregate
principal amount to $600,000, maturing on the same date bearing interest at the
same rate and on the same dates, and otherwise of substantially like tenor
(except for principal amount and name of payee) as this Note.
1.6 Person. Person shall mean any individual, corporation,
------
partnership, joint venture, association, joint-stock company, trust,
unincorporated organization or government or any agency or political
subdivision thereof.
2. PREPAYMENT OF NOTE
---------------------
2.1 Note to Be Callable for Prepayment. The Company shall have the
----------------------------------
right, subject to compliance with the provisions of this Article 2, to call
this Note for prepayment at any time (herein referred to as the "Prepayment
Date"), either in whole or in part, at the principal amount so to be prepaid,
together with accrued interest thereon to the date fixed for such prepayment.
2.2 Notice of Call for Prepayment. Notice of call for prepayment of
-----------------------------
this Note or any portion hereof shall be given to the Holder of Record at his
address as specified in Section 6.2 at least three (3) days prior to the date
fixed for such prepayment. Upon notice of call for prepayment being given as
aforesaid, the Company covenants and agrees that it will prepay on the date
therein fixed for prepayment the entire principal amount of this Note or the
portion hereof, as the case may be, so called for prepayment as hereinabove
provided, and will pay all accrued and unpaid interest on the principal amount
being prepaid.
2.3 Allocation Among Holders. If less than the entire principal
------------------------
amount of all Notes at the time outstanding shall be called for prepayment at
any time, the Company will allocate the principal amount so called for
prepayment among the holders of all Notes in proportion, as nearly as may be,
to the aggregate principal amount of Notes then held by the respective holders
thereof. In any such allocation (i) the Company may, according to such method
as it shall deem proper in its discretion, make such adjustments by increasing
or decreasing by not more than $1,000 the amount which would be allocable on
the basis of exact proportion to any holders, as may be necessary to the end
that the principal amount so allocated shall be in each instance an integral
multiple of $1,000 and (ii) the Company shall not be required to allocate any
amount to any holder to which the amount allocable on the basis of the exact
proportion would be less than $1,000.
2.4 Prepayment of Portion of Note. Upon any prepayment of a portion
-----------------------------
of the principal amount of this Note, the Holder, at his option, (i) may
require the Company to execute and deliver at the expense of the Company a new
Note dated as of the date to which interest on this Note has been paid, and
2
payable to such person or persons as may be designated by the Holder, for the
aggregate principal amount of this Note then remaining unpaid, upon surrender
of this Note and payment of applicable transfer taxes, if any, or (ii) may
present this Note to the Company for notation hereon of the payment of the
portion of the principal amount of this Note so prepaid.
2.5 Note to Become Due on Date Called for Prepayment. If this Note
------------------------------------------------
or a portion hereof is called for prepayment as herein provided, then this Note
or such portion shall become due and payable on the date of prepayment stated
in such notice and shall cease to bear interest on and after such date, unless,
upon presentation, the Company shall fail to prepay this Note or such portion,
as the case may be.
2.6 Private Placement and Prepayment of Note. If the Company shall
----------------------------------------
close a private placement of its Common Stock and/or indebtedness for which
the gross proceeds are at least $600,000, prior to the maturity of the Note,
the Company shall apply the net cash proceeds of such placement (after payment
of all related expenses) toward prepayment of all the Notes in accordance with
this Article 2. The Company shall effect the prepayment required by this Section
within five (5) Business Days after its receipt of the net proceeds from the
placement.
3. COVENANTS OF THE COMPANY
---------------------------
The Company agrees, and covenants that until such time as this
Note has been paid in full the Company will comply with the following covenants:
3.1 Payment of Principal and Interest. The Company will duly and
---------------------------------
punctually pay the principal of and interest on this Note in accordance with
the terms of this Note.
3.2 Maintenance of Office or Agency. The Company will maintain an
-------------------------------
office in the State of New Jersey where this Note may be presented or
surrendered for payment, where this Note may be surrendered for transfer or
exchange and where notices and demands to or upon the Company in respect of
this Note may be served. The Company will give prompt written notice to the
Holder of the location, and of any change in the location, of such office.
3.3 Payment of Taxes and Other Claims. The Company will pay or
---------------------------------
discharge or cause to be paid or discharged, before the same shall become
delinquent, (i) all taxes, assessments and governmental charges levied or
imposed upon it or upon its income, profits or property, and (ii) all lawful
claims for labor, materials and supplies which, if unpaid, might by law become
a lien upon its property; provided, however, that the Company shall not be
required to pay or discharge or cause to be paid or discharged any such tax,
assessment, charge or claim whose amount, applicability or validity is being
contested in good faith by appropriate proceedings.
3.4 Maintenance of Properties. The Company will cause all its
-------------------------
properties used or useful in the conduct of its business to be maintained and
kept in good condition, repair and working order and supplied with all
necessary equipment and will cause to be made all necessary repairs, renewals,
3
replacements and improvements thereof, all as in the judgment of the Company
may be necessary so that the business carried on in connection therewith may be
properly and advantageously conducted at all times; provided, however, that
nothing in this Section shall prevent the Company from discontinuing the
operation and maintenance of any of its properties if such discontinuance is,
in the judgment of the Company, desirable in the conduct of its business and
not disadvantageous in any material respect to the Holder.
3.5 Corporate Existence. The Company will do or cause to be done all
-------------------
things necessary to preserve and keep in full force and effect its corporate
existence, rights (charter and statutory) and franchise; provided, however,
that the Company shall not be required to preserve any right or franchise if
the Board of Directors shall determine that the preservation thereof is no
longer desirable in the conduct of the business of the Company and that the
loss thereof is not disadvantageous in any material respect to the Holder.
3.6 Financial Statements. The Company shall send to each Holder a
--------------------
copy of all financial statements and other reports it sends to the holders of
its Common Stock.
3.7 Consolidation, Merger, Conveyance or Transfer. The Company shall
---------------------------------------------
not consolidate with or merge into any other corporation or convey or transfer
its properties and assets substantially as an entirety to any Person (excluding
a sale of the Strax Division), unless:
(a) the corporation formed by such consolidation into which the
Company is merged or the Person which acquires by conveyance or transfer the
properties and assets of the Company substantially as an entirety shall be a
corporation organized and existing under the laws of the United States of
America or any State or the District of Columbia, and shall expressly assume
the due and punctual payment of the principal of and interest on all the Notes;
and
(b) immediately after giving effect to such transaction, no Event of
Default, and no event which, after notice or lapse of time, or both, would
become an Event of Default, shall have happened and be continuing.
4. REMEDIES
-----------
4.1 Events of Default. "Event of Default", wherever used herein
-----------------
means any one of the following events (whatever the reason for such Event of
Default and whether it shall be voluntary or involuntary or be effected by
operation of law pursuant to any judgment, decree or order of any court or any
order, rule or regulation of any administrative or governmental body):
(1) default in the payment of any interest upon any Note for a
period of five (5) Business Days after it becomes due and payable; or
(2) default in the payment of the principal of any Note at its
Maturity; or
4
(3) default in the performance, or breach, of any covenant of the
Company in this Note (other than a covenant or warranty a default in whose
performance or whose breach is elsewhere in this Section specifically
dealt with), and continuance of such default or breach for a period of
ten (10) Business Days after there has been given, by registered or
certified mail, to the Company by the Holders of at least 51% in
principal amount of the outstanding Notes, a written notice specifying
such default or breach and requiring it to be remedied and stating that
such notice is a "Notice of Default" hereunder; or
(4) the entry of a decree or order by a court having jurisdiction in
the premises adjudging the Company a bankrupt or insolvent, or approving as
properly filed a petition seeking reorganization, arrangement, adjustment
or composition of or in respect of the Company under the Federal Bankruptcy
Code or any other applicable Federal or State law, or appointing a
receiver, liquidator, assignee, trustee, sequestrator (or other similar
official) of the Company or of any substantial part of its property, or
ordering the winding up or liquidation of its affairs, and the continuance
of any such decree or order unstayed and in effect for a period of sixty
(60) consecutive days; or
(5) the institution by the Company of proceedings to be adjudicated a
bankrupt or insolvent, or the consent by it to the institution of
bankruptcy or insolvency proceedings against it, or the filing by it of
a petition or answer or consent seeking reorganization or relief under
the Federal Bankruptcy Code or any other applicable Federal or State
law, or the consent by it to the filing of any such petition or to the
appointment of a receiver, liquidator, assignee, trustee, sequestrator
(or other similar official) of the Company or of any substantial part
of its property, or the making by it of an assignment for the benefit
of creditors, or the admission by it in writing of its inability to pay
its debts generally as they become due, or the taking of corporate
action by the Company in furtherance of any such action; or
(6) the Company shall be in default in the payment of in excess of
$200,000 of money borrowed in any one transaction or pursuant to any one
agreement, the lender thereof shall have exercised its rights to
declare said sum due and payable and such default shall not have been
cured or contested in good faith for a period of sixty (60) days after
such declaration; or
(7) the Company shall have entered against it a final judgment by
a court having jurisdiction which, if satisfied, would have a material
adverse effect on the financial condition of the Company;
then and in each and every case, unless the principal of all of the Notes shall
have already become due and payable, the holders of not less than 51% in
aggregate principal amount of the Notes at the time outstanding may by notice in
writing to the Company declare the unpaid balance of all the Notes to be
forthwith due and payable, and thereupon such balance, including the principal
of the Notes and accrued interest thereon, shall become so due and payable
without presentation, protest or further demand or notice of any kind, all of
which are hereby expressly waived.
5
4.2 Enforcement of Remedies. In case any one or more of the Events
-----------------------
of Default specified in Section 4.1 shall have occurred and be continuing, the
Holder may proceed to protect and enforce his rights either by suit in equity or
by action at law, for the specific performance of any covenant or provision
contained herein, or proceed to enforce payment of such Note or to enforce any
other legal or equitable right of the Holder of such Note; provided, however,
that, except for enforcement of the payment of principal or interest on the
Notes, said Holder shall be a Holder of Record of, or shall be joined in such
proceeding by other Holders of Record who together with him hold at least 51%
in aggregate principal amount of all Notes at the time outstanding.
4.3 Notice to Holders of Record. If any Holder of a Note shall
---------------------------
demand payment thereof or take any other action of which the Company shall have
actual knowledge in respect of an alleged default or Event of Default, the
Company will forth with give written, notice, specifying such action and nature
of the alleged default or Event of Default, to each Holder of Record of the
Notes then outstanding.
4.4 Waiver by Company. To the extent permitted by applicable law,
-----------------
the Company hereby agrees to waive, and does hereby absolutely and irrevocably
waive and relinquish the benefit and advantage of any valuation, stay,
appraisement, extension or redemption laws now existing or which may hereafter
exist, which, but for this provision might be applicable to any sale made under
the judgment, order or decree of any court or otherwise, based on the Notes or
any claim for interest on the Notes or any foreclosure thereunder.
4.5 Amendments and Waivers. No course of dealing between the Company
----------------------
and any holder of the Notes and no delay on the part of any holder of the Notes
in exercising any rights under the Notes shall operate as a waiver of the rights
of any holder of the Notes. No covenant or other provision of the Notes nor any
default or Event of Default in connection therewith may be waived otherwise than
by a written instrument signed by the party so waiving such covenant or other
provision or default or Event of Default. Any provision of the Notes to the
contrary notwithstanding, changes in or additions to the Notes may be made, and
compliance with any term, convenant, condition or provision set forth in the
Notes may be omitted or waived (either generally or in a particular instance and
either retroactively or prospectively), and any default or Event of Default and
the consequences thereof may be waived, by a consent or consents in writing
signed by the Holders of Record of at least 51% in aggregate principal amount of
all Notes at the time outstanding; provided, however, that (i) the Company shall
deliver copies of the form of such consent or consents to any Holder of Record
who did not execute the same; (ii) no such consent shall be effective to reduce
the principal of or rate of interest payable on any Notes, or to postpone the
date fixed for the payment of the principal thereof, or any installment of
interest thereon, without the consent of the Holder of Record of each Note so
affected; (iii) no such consent shall be effective to change the percentage of
principal amount of the Notes, the consent of the holders of which is required
under this Section 5.5, without the consent of the Holders of Record of all
Notes at the time outstanding; and (iv) no such consent shall extend to or
impair any obligation not expressly waived or impair any right consequent
thereon. Any consent may be given subject to satisfaction of conditions stated
therein.
6
4.6 Cost and Expense of Collection. The Company covenants and agrees
------------------------------
that if default be made in any payment or prepayment of principal of, or
interest on, the Notes, it will, to the extent permitted under applicable law,
pay to the holder or holders of the Notes such further amount as shall be
sufficient to cover the cost or expense of collection, including reasonable
compensation to the attorneys of the Holder for all services rendered in that
connection.
5. PAYMENT; EXCHANGE AND TRANSFER; LOST NOTES
---------------------------------------------
5.1 Payments. Interest and principal to be paid in respect of this
--------
Note shall be paid at the place provided herein, without any presentment or
notation of payment, and the amount of principal so paid on this Note shall be
regarded as having been retired and cancelled at the time of payment. The
Holder of Record shall, however, at the place of payment of this Note at any
time during its regular business hours on any day when a payment of principal
is due, permit the Company to make appropriate notation hereon of the amount
of principal which has been paid on this Note, if the Company at least fifteen
(15) days in advance shall have in writing requested permission to make such
notation. The Holder of Record of this Note, before any transfer hereof, shall
make a notation hereon of all principal payments theretofore made hereon, and
shall in writing notify the Company of the name and address of the respect to
which interest and transferee. Any Note with respect to which interest and
principal has been fully paid shall be surrendered to the Company and shall be
retired and cancelled.
5.2 Exchange and Transfer. The Holder of Record of any of the Notes
---------------------
may, prior to maturity or prepayment thereof, surrender any Notes held by him
for exchange, at the office designated by the Company pursuant to Section 3.2.
Within a reasonable time thereafter and without expense (other than transfer
taxes, if any) to such Holder of Record, the Company shall issue in exchange
thereof, or in exchange for the portion thereof not surrendered in payment as
aforesaid (as the case may be), in such denominations and made payable to such
person or persons, or order, as such Holder of Record shall designate, a Note
or Notes for the same aggregate principal amount as the unpaid principal amount
of the Note or Notes so surrendered, having the same maturity and rate of
interest, containing the same provisions and subject to the same terms and
conditions as the Note or Notes as surrendered.
5.3 Lost, etc., Notes. Upon receipt by the Company of evidence
-----------------
satisfactory to it of the loss, theft, destruction or mutilation of this Note,
and (in case of loss, theft or destruction) of indemnity satisfactory to it,
and upon reimbursement to the Company of all reasonable expenses incidental
thereto, and upon surrender and cancellation of this Note, if mutilated, the
Company will make and deliver a new Note of like tenor in lieu of such Note.
6. MISCELLANEOUS PROVISIONS
---------------------------
6.1 Benefits. This Note shall be binding upon the Company and its
--------
successors and assigns and shall inure to the benefit of the Holder and its
successors and assigns.
7
6.2 Addresses of Parties. All communications provided for herein or
--------------------
with reference to this Note shall be deemed to have been sufficiently given or
served for all purposes if sent by certified or registered mail, postage and
purposes if sent by certified or registered mail, postage and charges prepaid,
to the following addresses: if to the Company, at its office, 0 Xxxxxx Xxxxx,
Xxxx Xxx, Xxx Xxxxxx 00000, Attention: President, or at any other address
designated by the Company in writing to the Holder of Record of this Note; and
if to any Holder of Record of the Note, as specified in writing to the Company
by an initial or successor Holder of Record.
6.3 Governing Law. This Note shall be deemed to be a contract made
-------------
under, and to be construed in accordance with, the laws of the State of New
Jersey, without giving effect to conflicts of law.
6.4 Section Headings. The descriptive section headings herein have
----------------
been inserted for convenience only and shall not be deemed to limit or
otherwise affect the construction of any provisions hereof.
IN WITNESS WHEREOF, the Company has caused this Note to be
signed in its corporate name by its President, under its corporate seal,
attested by its Secretary, and dated the day and year first above written.
CAPRIUS, INC.
By: /s/ Xxxxxx Xxxxx
----------------------------
Xxxxxx Xxxxx, President
ATTEST:
/s/ Xxxxxxxx Xxxxx
---------------------------------
Xxxxxxxx Xxxxx, Secretary
8
