EXHIBIT 10.15
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THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), OR UNDER THE SECURITIES
LAWS OF ANY STATE. THESE SECURITIES ARE SUBJECT TO RESTRICTIONS ON
TRANSFERABILITY AND RESALE AND MAY NOT BE TRANSFERRED OR RESOLD EXCEPT AS
PERMITTED UNDER THE ACT AND THE APPLICABLE STATE SECURITIES LAWS, PURSUANT
TO REGISTRATION OR EXEMPTION THEREFROM. THE ISSUER OF THESE SECURITIES MAY
REQUIRE AN OPINION OF COUNSEL IN FORM AND SUBSTANCE SATISFACTORY TO THE
ISSUER TO THE EFFECT THAT ANY PROPOSED TRANSFER OR RESALE IS IN COMPLIANCE
WITH THE ACT AND ANY APPLICABLE STATE SECURITIES LAWS.
AMPERSAND MEDICAL CORPORATION
6% CONVERTIBLE SUBORDINATED NOTE DUE 2000
$100,000
June 4, 1999
1. Principal and Interest. AMPERSAND MEDICAL CORPORATION, a
corporation duly organized and existing under the laws of the State Of
Delaware (the "Company", which term includes any successor), for value
received, hereby promises to pay to the order of ____________________, or
any successor in interest registered on the books of the Company (the
"Holder") in lawful money of the United States at the address of the Holder
set forth below, the principal sum of One Hundred Thousand and 00/100
Dollars ($100,000) on January 28, 2000 (the "Maturity Date") which date may
be extended by the Company to June 30, 2000 (the "Extended Maturity Date"),
together with simple interest from the date hereof, computed on the basis
of a 360-day year of twelve 30-day months in arrears from the date of
original issuance hereof until the Maturity Date or the Extended Maturity
Date to Holders of record of the Notes at the rate set forth in the
following paragraph until the principal hereof is paid or made available
for payment.
The interest rate on this Note will be 6% per annum from the date of
original issuance. On the Maturity Date or the Extended Maturity Date, the
Company will pay, in lieu of the payment in whole or in part of interest in
cash on this Note, pay interest on this Note through the issuance of
additional shares of Common Stock of the Company at a conversion price as
defined in subsection 2(a) below in an aggregate principal amount equal to
the amount of interest that would be payable with respect to this Note, if
such interest were paid in cash.
This Note is one of a series of Notes that the Company contemplates
issuing to holders pursuant to a plan to raise no more than One Million
Five Hundred Thousand and 00/1 00 ($1,500,000.00) of proceeds currently
being undertaken by the Company, convertible into Common Stock at a
Conversion Price defined in subsection 2(a) below (the "$1,500,000 Debt
Offering).
2. Conversion.
(a) Conversion Price. Subject to and upon compliance with the
provisions of this Section 2, the principal amount of this Note (or any
portion hereof that is a multiple of $1,000 or a whole multiple thereof)
shall be convertible into shares of the Company's common stock, no par
value per share (the "Common Stock") at the conversion price (the
"Conversion Price") per each share of Common Stock that is the lesser of
(i) $0.33; (ii) 40% of the lowest conversion price established by the
Company in the contemplated offering by its subsidiary, Ampersand Medical
Corporation ("Ampersand") of $17,000,000 of 6% Convertible Subordinated
Notes due 1999 (the "1999 Debt Offering"); (iii) 40% of the lowest
conversion price below $0.75 in any other offering of debt securities of
the Company in substitution for the 1999 Debt Offering; or (iv) 40% of the
lowest price below $0.75 in any offering of equity securities of the
Company in substitution for the 1999 Debt Offering; provided, however, that
(x) under no circumstances shall the Conversion Price be less than $0.20
per share, (y) provisions (iii) and (iv) of this subsection shall not apply
to the $1,500,000 Debt Offering, and (z) all prices contemplated by (i)
through (iv) and (x) of this subsection shall be appropriately adjusted for
any combination, consolidation stock split or other recapitalization of the
Company.
(b) Automatic Conversion. This Note shall be automatically
converted by the Company into shares of Common Stock at the Conversion
Price immediately upon the satisfaction of the following condition: (i) the
Company's receipt of at least Five Million and 00/100 Dollars ($5,000,000)
as part of the 1999 Debt Offering or any other offering of debt or equity
securities of the Company, such minimum amount not to include the
$1,500,000 Debt Offering.
(c) Optional Conversion. The Holder may, upon notice to the
Company, convert this Note into shares of Common Stock at the Conversion
Price at any time.
(d) Mechanics of Conversion. No conversion notice shall be
necessary in the event of an automatic conversion pursuant to Section 2(b).
In the case of an automatic conversion pursuant to Section 2(b), such
conversion shall be deemed to have been made immediately following the
later to occur of (i) the receipt by the Company of a minimum amount of
$5,000,000 in accordance with Section 2(b) above, and the person or persons
entitled to receive the shares of Common Stock issuable upon such
conversion shall be treated for all purposes as the record holders of such
shares of Common Stock on such date.
(d) Reclassification, etc. If the Company at any time shall, by
subdivision, combination or reclassification of securities or otherwise,
change any of the securities into which this Note is convertible into the
same or a different number of securities of any class or classes, the
shares of Common Stock or other securities into which this Note is
convertible shall thereafter be convertible into the kind and number of
shares of stock or other securities or property of the Company or otherwise
to which the Holder would have been entitled if immediately prior to such
change the Holder had acquired the shares of Common Stock or other
securities into which this Note is convertible. If shares of the Company's
Common Stock or other securities purchasable hereunder are subdivided or
combined into a greater or smaller number of shares, the Conversion Price
under this Note shall be proportionately reduced in case of subdivision of
shares or proportionately increased in the case of combination of shares.
No adjustment on account of cash dividends or interest on the Company's
Common Stock or other securities into which this Note is convertible will
be made to the Conversion Price under this Note.
(e) Notice of Adjustment. Upon any adjustment of the securities
issuable upon conversion of this Note, the Conversion Price for the shares,
and/or any increase or decrease in the number of shares into which this
Note is convertible upon conversion of this Note, the Company shall give
written notice thereof, by first class mail, postage prepaid, addressed to
the Holder at the address of the Holder as shown on the books of the
Company.
(f) Fractional Shares. The Company shall not be required to issue
fractions of shares of Common Stock upon conversion of this Note. In lieu
of any fractional shares to which the Holder of this Note would otherwise
be entitled, the Company shall pay cash equal to such fraction multiplied
by the fair market value of the Common Stock as determined by the Board of
Directors of the Company, whose determination shall be conclusive.
(g) No Rights as Stockholder. This Note does not entitle the Holder
to any voting rights or other rights as a stockholder of the Company prior
to the conversion hereof.
3. Subordination.
(a) "Senior Indebtedness" means the principal of and premium, if
any, and interest on indebtedness of the Company for money borrowed from
commercial banks, equipment lessors, government instrumentalities or other
financial institutions under a secured or unsecured line of credit, term
loan or equipment lease.
(b) The Company agrees and the Holder, by acceptance of this Note,
agrees, expressly for the benefit of the present and future holders of
Senior Indebtedness, that, except as otherwise provided herein, upon: (1)
an event of default under any Senior Indebtedness; or (ii) any dissolution,
winding up or liquidation of the Company, whether or not in bankruptcy,
insolvency or receivership proceedings, the Company shall not pay, and the
Holder of this Note shall not be entitled to receive, any amount in respect
of the principal and interest of this Note unless and until the Senior
Indebtedness shall have been paid or otherwise discharged. Upon:
(1) an event of default under any Senior Indebtedness; or (2) any
dissolution, winding up or liquidation of the Company, any payment or
distribution of assets of the Company, which the Holder of this Note would
be entitled to receive but for the provisions hereof, shall be paid by the
liquidating trustee or agent or other person making such payment or
distribution directly to the holders of Senior Indebtedness ratably
according to the aggregate amounts remaining unpaid on Senior Indebtedness
after giving effect to any concurrent payment or distribution to the
holders of Senior Indebtedness. Subject to the payment in full of the
Senior Indebtedness and until this Note is paid in full, the Holder of this
Note shall be subrogated to the rights of the holders of the Senior
Indebtedness (to the extent of payments or distributions previously made to
the holders of Senior Indebtedness pursuant to this paragraph 3(b) to
receive payments or distributions of assets of the Company applicable to
the Senior Indebtedness).
(c) This Section 3 is not intended to impair, as between the
Company, its creditors (other than the holders of Senior Indebtedness) and
the Holder of this Note, the unconditional and absolute obligation of the
Company to pay the principal of and interest on this Note or to affect the
relative rights of the Holder of this Note and the other creditors of the
Company, other than the holders of Senior Indebtedness. Nothing in this
Note shall prevent the Holder of this Note from exercising all remedies
otherwise permitted by applicable law upon default under this Note, subject
to the rights, if any, of the holders of Senior indebtedness in respect to
cash, property or securities of the Company received upon the exercise of
any such remedy.
4. Redemption. This Note may not be redeemed prior to the Maturity
Date. Should the Company elect to extend the term of this Note, the Note
may not be redeemed prior to the Extended Maturity Date.
5. Place of Payment. All payments due to the Holder hereunder
shall be paid to the Holder at the address that the Holder shall have given
written notice to the Company.
6. Events of Default and Remedies. If any of the following events
of default (individually, an "Event of Default") shall occur for any reason
whatsoever (and whether it shall be voluntary or involuntary or occur or be
affected by operation of law or otherwise):
(a) The Company fails to make payment when due of any principal or
interest payable under this Note, and such failure continues for a period
of ten days after written notice that such payment is due and unpaid;
(b) The Company defaults in the observance or performance of any
material agreement or condition under this Note or the Note Purchase
Agreement dated of even date herewith, between the Company and Purchaser
(the "Note Purchase Agreement"), and such default continues for a period of
30 days after written notice of such default is given to the Company by the
Holder;
(c) Any representation or warranty made by the Company in the Note
Purchase Agreement shall prove to have been false in any material respect
in the date when made;
(d) The Company shall default under any material agreement for
borrowed money that causes the other party thereto to accelerate such
obligation;
(e) The Company shall: (i) file, or consent by answer or otherwise
to the filing against it of a petition for relief or reorganization or
arrangement or any other petition in bankruptcy or insolvency law of any
jurisdiction; (ii) make an assignment for the benefit of its creditors;
(iii) consent to the appointment of a custodian, receiver, trustee or other
officer with similar powers of itself or of any substantial part of its
property; (iv) be adjudicated insolvent or be liquidated; or (v) take
appropriate action for the purpose of any of the foregoing; or
(f) A court or governmental authority of competent jurisdiction
shall enter an order appointing a custodian, receiver, trustee or other
officer with similar powers with respect to the Company or any substantial
amount of its properties, or if an order for relief with respect to the
Company shall be entered in any case or proceeding for liquidation or
reorganization or otherwise to take advantage of any bankruptcy or
insolvency law of any jurisdiction, or ordering the dissolution, winding up
or liquidation of the Company, or if any petition for any such relief shall
be filed against the Company, and such order or petition shall not be
dismissed or stayed within 60 days after the date of such filing, then
automatically upon the occurrence of such Event of Default the entire
unpaid principal amount of, and the unpaid accrued interest on, this Note
shall become immediately due and payable.
7. Additional Remedies. If any Event of Default hereunder shall
have occurred, the Holder may proceed to protect and enforce its rights
under this Note by exercising such remedies as are available to it in
respect thereof under the terms of this Note or applicable law, either by
suit in equity or by action at law, or both, whether for specific
performance of any agreement contained in this Note or in aid of the
exercise of any power granted in this Note. No remedy is intended to be
exclusive and each such remedy shall be cumulative.
8. Transfer.
(a) The transfer of this Note is registrable by the Holder hereof
in person or by his attorney duly authorized in writing on the books of the
Company. Upon surrender and cancellation of this Note upon any such
transfer, a new Note for the same aggregate principal amount will be issued
to the transferee in exchange herefor.
(b) The Company and any transfer or conversion agent may deem and
treat the person in whose name this Note shall be registered upon the books
of the Company as the absolute owner of this Note (whether or not his Note
shall be overdue and notwithstanding any notation of ownership or other
writing hereon) for all other purposes, and neither the Company nor any
transfer or conversion agent shall be affected by any notice to the
contrary. All such payments shall be valid and effectual to satisfy and
discharge the liability on this Note to the extent of the sum or sums so
paid.
9. Registration Rights. The Company shall register all of the
shares of Common Stock held by Holder and all of the shares of Common Stock
received pursuant to the conversion of this Note by filing a registration
statement on Form S-3 (or any successor form thereto or any other forms
then available to the Company for registration of securities), and cause
such registration statement to be declared effective on or prior to the
twelve-month anniversary date of the issuance of this Note. The Company
shall cause such registration statement to remain effective for five years
following the initial registration. If the Company fails to fails to
register Holder's Common Stock pursuant to this Section 9, the Company
shall pay to Holder liquidated damages in an amount equal to five percent
(5%) per month (or any part thereof), compounded monthly, on the amount of
the face value of this Note, until such time as the Company is no longer in
breach of this Section 9. Any payments due to Holder pursuant to this
Section 9 shall be made no later than the fifteenth day of the month
following the month in which such liquidated damages were incurred.
10. Attorney Fees.
(a) If the indebtedness represented by this Note or any part thereof
is collected in bankruptcy, receivership or other judicial proceedings or
if this Note is placed in the hands of attorneys for collection after
default, the Company agrees to pay, in addition to the principal and
interest payable hereunder, reasonable attorneys' fees and costs incurred
by the Holder.
11. Notices, All notices, reports and other communications required
or permitted hereunder shall be in writing and may be delivered in person,
by telecopy with written confirmation, overnight delivery service or U.S.
mail, in which event it may be mailed by first-class, certified or
registered, postage prepaid, addressed to the Holder at its address as
shown on the books of the Company or to the Company at 414 North Orleans
Street, Suite 305, Chicago, Illinois 60610, Attention: Chief Executive
Officer.
Each such notice, report or other communication shall for all
purposes under this Note be treated as effective or having been given when
delivered if delivered personally or, if sent by mail, at the earlier of
its receipt or five days after the same has been deposited in a regularly
maintained receptacle for the deposit of the United States mail, addressed
and mailed as aforesaid or, if sent by telecopier with written
confirmation, at the earlier of: (i) 24 hours after confirmation of
transmission by the sending telecopier machine; or (ii) delivery of written
confirmation.
12. Amendments. Consents and Waivers. This Note may be amended at
any time and from time to time to add to, eliminate or modify the terms and
provisions hereof and the rights of the Holder hereunder with the written
consent of the Company and the Holder; provided, however, that no such
change shall terminate or impair the subordination provisions of this Note
without the prior written consent of the holders of Senior Indebtedness.
Any amendment, waiver or consent by the Holder of this Note shall be
conclusive and binding upon such Holder and any future Holder of this Note
and of any Note issued in exchange or substitution herefor, irrespective of
whether or not any notation of such amendment, waiver or consent is made
upon this Note or such exchanged or substituted Note. The Company hereby
waives presentment, demand for performance, notice of non-performance,
protest, notice of protest and notice of dishonor. No delay on the part of
the Holder in exercising any right hereunder shall operate as a waiver of
such right or any other right.
13. No Recourse. No recourse shall be had for the payment of the
principal or interest on this Note, or any claim based hereon, or otherwise
in respect hereof, this Note, against any incorporator, stockholder,
officer or director, as such, past, present or future, of the Company or
any successor Company, whether by virtue of any constitution, statute or
rule of law, or by the enforcement of any assessment or penalty or
otherwise, all such liability being, by the acceptance hereof and as part
of the consideration for the issue hereof, expressly waived and released.
14. Payment Due on Holidays. If the principal of or interest on
this Note falls due on a Saturday, Sunday or legal holiday at the place of
payment, such payment shall be made on the next succeeding business day and
such extended time shall be included in computing interest.
15. Severability. If any provision of this Note shall be held
invalid under any applicable laws, such invalidity shall not affect any
other provision of this Note that can be given effect without the invalid
provision and, to this end, the provisions hereof are severable.
16. Governing Law. This Note is being delivered in and shall be
construed in accordance with the laws of the State of Illinois, without
regard to the conflicts of laws provisions thereof.
IN WITNESS WHEREOF, and intending to be legally bound hereby, the
Company has caused this Note to be executed and delivered by its proper and
duly authorized officers as of the date first above written.
AMPERSAND MEDICAL CORPORATION
BY: _________________________________
NAME: Peter P. Gombrich
TITLE: Chief Executive Officer
Attest:
BY:_______________________________
NAME: Leonard Prange
TITLE: President