Attached files
file | filename |
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8-K - CAPRIUS INC | e606216_8k-caprius.htm |
EX-4.1 - CAPRIUS INC | e606216_ex4-1.htm |
EX-4.2 - CAPRIUS INC | e606216_ex4-2.htm |
EX-4.3 - CAPRIUS INC | e606216_ex4-3.htm |
EX-3.1 - CAPRIUS INC | e606216_ex3-1.htm |
EX-4.4 - CAPRIUS INC | e606216_ex4-4.htm |
EX-10.1 - CAPRIUS INC | e606216_ex10-1.htm |
EX-10.7 - CAPRIUS INC | e606216_ex10-7.htm |
EX-10.5 - CAPRIUS INC | e606216_ex10-5.htm |
EX-10.6 - CAPRIUS INC | e606216_ex10-6.htm |
EX-10.3 - CAPRIUS INC | e606216_ex10-3.htm |
EX-10.8 - CAPRIUS INC | e606216_ex10-8.htm |
EX-10.9 - CAPRIUS INC | e606216_ex10-9.htm |
EX-10.4 - CAPRIUS INC | e606216_ex10-4.htm |
Exhibit
10.2
Execution
Version
THE
SECURITY REPRESENTED HEREBY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED, OR REGISTERED OR QUALIFIED UNDER ANY APPLICABLE STATE
SECURITIES LAW AND MAY NOT BE SOLD, TRANSFERRED, PLEDGED, HYPOTHECATED OR
OTHERWISE ASSIGNED EXCEPT IN COMPLIANCE WITH THE REGISTRATION REQUIREMENTS OF
SUCH ACT AND THE REGISTRATION OR QUALIFICATION REQUIREMENTS OF SUCH STATE
SECURITIES LAWS, OR PURSUANT TO AN EXEMPTION FROM SUCH REGISTRATION AND
QUALIFICATION.
SENIOR
SECURED PROMISSORY NOTE
September 16,
2009
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FOR VALUE
RECEIVED, CAPRIUS, INC., a Delaware corporation (“Caprius”), M.C.M.
ENVIRONMENTAL TECHNOLOGIES, INC., a Delaware corporation (“M.C.M.”), and M.C.M.
ENVIRONMENTAL TECHNOLOGIES LTD., an Israeli corporation (“M.C.M. Israel”
and, together with Caprius and M.C.M., each a “Borrower” and,
collectively, the “Borrowers”), jointly
and severally hereby promise to pay to the order of VINTAGE CAPITAL GROUP, LLC,
a Delaware limited liability company (the “Purchaser”), or any
registered permitted assigns of the Purchaser (together with the Purchaser, the
“Holder”), the
aggregate principal amount of all Advances as shall have been funded in
accordance with the terms of the Purchase Agreement (as defined below) in
immediately available funds and in lawful money of the United States of America,
together with interest thereon, all as provided in this Senior Secured
Promissory Note (this “Note”). This
Note is being issued in connection with the consummation of the transactions
contemplated by the Securities Purchase and Sale Agreement, dated of even date
herewith, among the Borrowers and the Purchaser (the “Purchase
Agreement”). All capitalized terms used and not otherwise
defined in this Note shall have the meanings set forth in the Purchase
Agreement.
1. Payment of Interest; Default
Rate.
(a) So
long as no Event of Default shall have occurred and be continuing, the Borrowers
shall pay interest on the unpaid principal balance of, and accrued unpaid
interest on, this Note from the date hereof until fully paid as
follows:
(i) Interest. Interest
on the outstanding principal balance of this Note shall be payable at a rate
equal to fourteen percent (14%) per annum by issuing additional senior notes of
like tenor, in an amount equal to 100% of the interest payment due on such
Interest Payment Date (as defined below), and including the same terms and other
provisions contained in this Note (including without limitation the interest
terms contained in this Section 1)
(each, a “PIK
Note”), with the principal amount of each such additional note equal to
the amount of such interest payment. Any PIK Note not actually issued
shall be deemed issued on the applicable Interest Payment Date (as defined
below) and shall be payable in full on the Maturity Date, as provided in Section 2.
(b) If
any Event of Default shall occur and be continuing, then, in addition to the
rights and remedies available to the Holder under the Purchase Agreement, this
Note, and all applicable laws, the Borrowers shall pay interest in cash on the
unpaid principal balance of, accrued and unpaid interest on, and all other
amounts owing under this Note and the PIK Notes at a rate per annum equal to the
then applicable rate per annum, plus three percent (3%) (the “Default
Rate”).
(c) Interest
on this Note shall be payable monthly in arrears on the first Business Day of
each calendar month (or portion thereof), commencing on November 1, 2009
(each, an “Interest
Payment Date”) and continuing on the first Business Day of each calendar
month thereafter until all principal, interest and other amounts owing under
this Note are paid in full. Interest shall be computed on the basis
of the actual number of days elapsed over a 360-day year, including the first
and the last day.
2. Payment of Principal;
Maturity Date. The Borrowers agree jointly and severally to
pay in full (a) the entire outstanding principal balance of this Note and
the PIK Notes, (b) all accrued and unpaid interest on this Note and the PIK
Notes, and (c) all other unpaid amounts owing under this Note and the PIK
Notes, on December 16, 2010 (the “Maturity
Date”). This Note may not be prepaid except as provided in
Section 3.
3. Prepayment.
(a) Except
as provided in Section 3(b),
the Borrowers shall not prepay all or any portion of the principal amount of
this Note at any time prior to the Maturity Date.
(b) Within
three (3) Business Days after any Disposition (as defined below) by any
Borrower or its Subsidiaries, the Borrowers shall prepay, without premium or
penalty, the outstanding principal amount of this Note in an amount equal to one
hundred percent (100%) of the proceeds of such Disposition, net of
reasonable costs and expenses actually incurred by such Borrower or its
Subsidiaries in connection therewith, to the extent such net proceeds exceed
Fifty Thousand Dollars ($50,000). Nothing contained in this
Section 3
shall permit any Borrower or its Subsidiaries to make a Disposition of any
property other than as specifically permitted under the Purchase
Agreement. As used in this Note, “Disposition” means
any transaction, or series of related transactions, pursuant to which any
Borrower or any of its Subsidiaries sells, assigns, transfers or otherwise
disposes of any property or asset (whether now owned or hereafter acquired) to
any other Person, in each case, whether or not the consideration therefor
consists of cash, securities or other assets owned by the acquiring Person,
excluding (A) any sales of Inventory in the ordinary course of business,
(B) transfers or other dispositions between and among the Borrowers and
their Subsidiaries to the extent permitted by the terms of the Purchase
Agreement, and (C) the transfer of leasehold interests to any lessor upon
the termination of such lease.
(c) Each
prepayment of principal shall be accompanied by the prepayment of accrued
interest to the date of such payment on the amount
prepaid. Notwithstanding any provision to the contrary herein, any
payment, when made, shall be applied first to the payment of all accrued and
unpaid fees, expenses and costs under any Investment Document, next to the
payment of all interest and other amounts owed hereunder then accrued on the
unpaid balance of the principal and the balance of such payment, after paying
such interest and premiums, shall be applied in reduction of the unpaid balance
of the principal.
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4. Security. The
Borrowers’ due and punctual performance of this Note is secured by the
collateral pursuant to the Security Agreement and the Pledge
Agreement.
5. Manner of
Payment. Payments of principal, interest and other amounts due
under this Note shall be made no later than 11:00 a.m. (Los Angeles time) on the
date when due and in lawful money of the United States of America and (by wire
transfer in funds immediately available at the place of payment or by check as
long as the funds are immediately available at such time on the due date of the
payment) to such account as the Holder may designate in writing to the Borrowers
from time to time (or such other place of payment as the Holder may designate in
writing). All such payments shall be made without any deduction
whatsoever, including, without limitation, any deduction for set-off,
recoupment, counterclaim or taxes. Any payments received after 11:00
a.m. (Los Angeles time) shall be deemed to have been received on the next
succeeding Business Day. Any payments due hereunder which are due on
a day which is not a Business Day shall be payable on the immediately succeeding
Business Day, together with all accrued and unpaid interest through the due date
of payment. All payments received shall be applied first to any costs
of collection or other accrued but unpaid fees, expenses and costs under any
Investment Document, next to accrued and unpaid interest payable in cash, next,
to accrued PIK Interest, next to principal on the PIK Notes, and last, to
principal on the Note.
6. Maximum Lawful Rate of
Interest. The rate of interest payable under this Note shall
in no event exceed the maximum rate permissible under applicable
law. If the rate of interest payable on this Note is ever reduced as
a result of this Section 6 and at
any time thereafter the maximum rate permitted under applicable law exceeds the
rate of interest provided for in this Note, then the rate provided for in this
Note shall be increased to the maximum rate provided for under applicable law
for such period as is required so that the total amount of interest received by
the Holder is that which would have been received by the Holder but for the
operation of the first sentence of this Section 6.
7. Waivers. The
Borrowers hereby waive presentment for payment, demand and notice of demand,
protest, notice of protest and notice of dishonor, notice of nonpayment,
diligence and all other notices of any kind whatsoever to which they may be
entitled under applicable law or otherwise (except for notices to which the
Borrowers are expressly entitled under this Note) and, to the full extent
permitted by law, the right to plead any statute of limitations as a defense, in
any suit or collection proceeding brought against the Borrowers. No
delay or omission on the part of the Holder in exercising any rights under this
Note shall operate as a waiver of such right or any other right.
8. Registration of
Notes. The Borrowers shall maintain at its principal executive
office a register in which it shall register this Note, any assignments of this
Note or any other notes issued hereunder and any other notes issued upon
surrender hereof and thereof. At the option of the Holder, this Note
may be exchanged for one or more new notes of like tenor in the principal
denominations requested by the Holder, and the Borrowers shall, within
five (5) Business Days after the surrender of this Note at Caprius’
principal executive offices, deliver to the Holder such new note or
notes. In addition, each assignment of this Note, in whole or in
part, shall be registered on the register immediately following the surrender of
this Note at Caprius’ principal executive offices.
3
9. Persons Deemed Owners;
Participations. Prior to due presentment in aggregate for
registration of any assignment, the Borrowers may treat the person or entity in
whose name any Note is registered as the owner and the Holder of such Note for
all purposes whatsoever, and the Borrowers shall not be affected by notice to
the contrary. Subject to the preceding sentence, the Holder may grant
to any other person or entity (each, a “Participant”),
without the Borrowers’ consent, participations from time to time in this Note on
such terms and conditions as may be determined by the Holder in its sole and
absolute discretion, subject to applicable federal and state securities
laws. Notwithstanding anything to the contrary contained herein or
otherwise, nothing in this Note, the Purchase Agreement or any related document
or otherwise shall confer upon a Participant any rights under the Purchase
Agreement or any related document, and the Holder shall retain all rights with
respect to the administration, waiver, amendment, collection and enforcement of,
compliance with and consent to the terms and provisions of this Note, the
Purchase Agreement and any other related document.
10. Assignment and
Transfer. Subject to applicable law, the Purchaser may, at any
time and from time to time and without the consent of the Borrowers, assign or
transfer to one or more Persons or entities all or any portion of the principal
balance of this Note.
11. Loss, Theft, Destruction or
Mutilation of this Note. Upon receipt of evidence reasonably
satisfactory to the Borrowers of the loss, theft, destruction or mutilation of
this Note and, in the case of any such loss, theft, destruction or mutilation,
upon receipt of an indemnity agreement or other indemnity reasonably
satisfactory to the Borrowers or, in the case of any such mutilation, upon
surrender and cancellation of such mutilated Note, the Borrowers shall issue and
deliver within five (5) business days a new Note, of like tenor, in lieu of
the lost, stolen, destroyed or mutilated Note.
12. Extension of
Time. The Holder may, at its sole option, extend the time for
payment of this Note, postpone the enforcement hereof, or grant any other
indulgence without affecting or diminishing the Holder’s right to full recourse
against the Borrowers hereunder, which right is expressly
reserved. Any such extension, postponement, waiver or other
indulgence shall only be effective if in writing and signed by the
Holder.
13. Governing
Law. IN ALL RESPECTS, INCLUDING ALL MATTERS OF CONSTRUCTION,
VALIDITY AND PERFORMANCE, THIS NOTE SHALL BE GOVERNED BY, AND CONSTRUED AND
ENFORCED IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF NEW YORK
APPLICABLE TO CONTRACTS MADE AND PERFORMED IN THAT STATE (WITHOUT REGARD TO THE
CHOICE OF LAW OR CONFLICTS OF LAW PROVISIONS THEREOF) AND ANY APPLICABLE LAWS OF
THE UNITED STATES OF AMERICA.
14. Captions; Construction and
Interpretation. The captions contained in this Note are for
convenience of reference only, do not constitute a part of this Note and are not
to be considered in construing or interpreting this Note. The
Borrowers and the Holder have each been represented by counsel in the
negotiation and drafting of this Note, and neither any Borrower nor the Holder
nor their respective counsel shall be deemed the drafter of this Note for
purposes of construing the provisions of this Note. All provisions of
this Note shall be construed in accordance with their fair meaning, and not
strictly for or against any Borrower or the Holder.
4
15. Consent to California
Jurisdiction and Exclusive Jurisdiction of California
Courts. AS PART OF THE CONSIDERATION FOR NEW VALUE RECEIVED,
AND REGARDLESS OF ANY PRESENT OR FUTURE DOMICILE OR PRINCIPAL PLACE OF BUSINESS
OF ANY BORROWER OR THE HOLDER, EACH BORROWER HEREBY CONSENTS AND AGREES THAT THE
STATE COURTS OF CALIFORNIA, OR, AT THE HOLDER’S OPTION, THE UNITED STATES
DISTRICT COURT FOR THE CENTRAL DISTRICT OF CALIFORNIA, SHALL HAVE EXCLUSIVE
JURISDICTION TO HEAR AND DETERMINE ANY CLAIMS OR DISPUTES BETWEEN THE BORROWERS
ON THE ONE HAND AND THE HOLDER ON THE OTHER HAND PERTAINING TO THIS NOTE OR TO
ANY MATTER ARISING OUT OF OR RELATED TO THIS NOTE. EACH BORROWER
EXPRESSLY SUBMITS AND CONSENTS IN ADVANCE TO SUCH JURISDICTION IN ANY ACTION OR
SUIT COMMENCED IN ANY SUCH COURT, AND EACH BORROWER HEREBY WAIVES ANY OBJECTION
WHICH SUCH BORROWER MAY HAVE BASED UPON LACK OF PERSONAL JURISDICTION, IMPROPER
VENUE OR FORUM NON CONVENIENS AND HEREBY CONSENTS TO THE GRANTING OF SUCH LEGAL
OR EQUITABLE RELIEF AS IS DEEMED APPROPRIATE BY SUCH COURT. EACH
BORROWER HEREBY WAIVES PERSONAL SERVICE OF THE SUMMONS, COMPLAINT AND OTHER
PROCESS ISSUED IN ANY SUCH ACTION OR SUIT AND AGREES THAT SERVICE OF SUCH
SUMMONS, COMPLAINT AND OTHER PROCESS MAY BE MADE BY REGISTERED OR CERTIFIED MAIL
ADDRESSED TO ANY BORROWER AT THE ADDRESS SET FORTH IN THE PURCHASE AGREEMENT AND
THAT SERVICE SO MADE SHALL BE DEEMED COMPLETED UPON THE EARLIER OF SUCH
BORROWER’S ACTUAL RECEIPT THEREOF OR THE NEXT BUSINESS DAY IF SENT BY A
NATIONALLY RECOGNIZED OVERNIGHT COURIER FOR NEXT BUSINESS DAY
DELIVERY. NOTHING IN THIS NOTE SHALL BE DEEMED OR OPERATE TO AFFECT
THE RIGHT OF THE HOLDER TO SERVE LEGAL PROCESS IN ANY OTHER MANNER PERMITTED BY
LAW, OR TO PRECLUDE THE ENFORCEMENT BY THE HOLDER OF ANY JUDGMENT OR ORDER
OBTAINED IN SUCH FORUM OR THE TAKING OF ANY ACTION UNDER THIS NOTE TO ENFORCE
SAME IN ANY OTHER APPROPRIATE FORUM OR JURISDICTION.
16. Waiver of Jury
Trial. TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW,
EACH BORROWER AND THE HOLDER (BY ACCEPTANCE HEREOF) HEREBY WAIVES THE RIGHT TO A
TRIAL BY JURY IN ANY ACTION, SUIT OR OTHER PROCEEDING BROUGHT TO RESOLVE ANY
CLAIM, CONTROVERSY OR DISPUTE ARISING UNDER OR RELATING TO THIS NOTE, REGARDLESS
OF WHICH PARTY INITIATES SUCH ACTION, SUIT OR OTHER PROCEEDING.
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IN
WITNESS WHEREOF, the Borrowers have caused this Note to be executed and
delivered by their duly authorized representatives on the date first above
written.
BORROWER:
CAPRIUS,
INC.,
a
Delaware corporation
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By:
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/s/Dwight Morgan
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Name:
Dwight Morgan
Title:
Chief Executive
Officer
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M.C.M.
ENVIRONMENTAL TECHNOLOGIES, INC.,
a
Delaware corporation
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By:
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Name:
Dwight Morgan
Title:
Chief Executive
Officer
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M.C.M.
ENVIRONMENTAL TECHNOLOGIES LTD.,
an
Israeli corporation
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By:
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Name:
George Aaron
Title:
Chairman
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