Contract
Exhibit
10.6
EXHIBIT
A
THIS
SECURITY AND THE RIGHTS AND OBLIGATIONS EVIDENCED HEREBY ARE SUBORDINATE IN
THE
MANNER AND TO THE EXTENT SET FORTH IN THE XXXXXX INTERCREDITOR AGREEMENT AND
EACH HOLDER OF THIS SECURITY, BY ACCEPTANCE HEREOF, IRREVOCABLY AGREES TO BE
BOUND BY THE PROVISIONS OF THE XXXXXX INTERCREDITOR AGREEMENT.
NEITHER
THIS SECURITY NOR THE SECURITIES INTO WHICH THIS SECURITY IS CONVERTIBLE HAVE
BEEN REGISTERED WITH THE SECURITIES AND EXCHANGE COMMISSION OR THE SECURITIES
COMMISSION OF ANY STATE IN RELIANCE UPON AN EXEMPTION FROM REGISTRATION UNDER
THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), AND, ACCORDINGLY,
MAY NOT BE OFFERED OR SOLD EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION
STATEMENT UNDER THE SECURITIES ACT OR PURSUANT TO AN AVAILABLE EXEMPTION FROM,
OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT AND IN ACCORDANCE WITH APPLICABLE STATE SECURITIES LAWS AS
EVIDENCED BY A LEGAL OPINION OF COUNSEL TO THE TRANSFEROR TO SUCH EFFECT, THE
SUBSTANCE OF WHICH SHALL BE REASONABLY ACCEPTABLE TO THE COMPANY. THIS SECURITY
AND THE SECURITIES ISSUABLE UPON CONVERSION OF THIS SECURITY MAY BE PLEDGED
IN
CONNECTION WITH A BONA FIDE MARGIN ACCOUNT OR OTHER LOAN SECURED BY SUCH
SECURITIES.
Original
Issue Date: March 11, 2008
$_______________
AMENDED
AND RESTATED ORIGINAL ISSUE DISCOUNT SECURED
CONVERTIBLE
DEBENTURE
DUE
MARCH 11, 2015
THIS
ORIGINAL ISSUE DISCOUNT SECURED CONVERTIBLE DEBENTURE is one of a series of
duly
authorized and validly issued Original Issue Discount Secured Convertible
Debentures of Capital Growth Systems, Inc., a Florida corporation, (the
“Company”),
having its principal place of business at 000 X. Xxxxxxx Xxxxxx, Xxxxx 0000,
Xxxxxxx, Xxxxxxxx 00000, designated as its Original Issue Discount Secured
Convertible Debenture due November ___, 2009 (the “Termination
Date”),
provided that if the Final Closing Date, as that term is defined herein occurs
before such date, this Debenture will be due on March 11, 2015 (the
“Extended
Termination Date”)
(this
debenture, the “Debenture”
and,
collectively with the other debentures of such series, the “Debentures”).
This Debenture is being issued in substitution for and not in satisfaction
of
that certain Variable Rate Secured Convertible Debenture issued to the Holder
on
March 11, 2008. Pursuant to Rule 144, the holding period of this Debenture,
the
Conversion Shares issuable upon conversion and redemption hereof shall tack
back
to March 11, 2008. This
Debenture shall not constitute a novation or satisfaction and accord of such
Variable Rate Secured Convertible Debenture
1
FOR
VALUE
RECEIVED, the Company promises to pay to ________________________ or its
registered assigns (the “Holder”),
or
shall have paid pursuant to the terms hereunder, the principal sum of
$_______________ on the later to occur of the Termination Date or the Extended
Termination Date (the “Maturity
Date”)
or
such earlier date as this Debenture is required or permitted to be repaid as
provided hereunder, and to pay default interest, if any, to the Holder on the
then outstanding and unconverted and unredeemed principal amount of this
Debenture in accordance with the provisions hereof. This Debenture is subject
to
the following additional provisions:
Section
1. Definitions.
For the
purposes hereof, in addition to the terms defined elsewhere in this Debenture,
(a) capitalized terms not otherwise defined herein shall have the meanings
set
forth in the Purchase Agreement and (b) the following terms shall have the
following meanings:
“Alternate
Consideration”
shall
have the meaning set forth in Section 5(e).
“Xxxxxx
Intercreditor Agreement”
means
that certain Intercreditor Agreement, dated as of November ___, 2008, duly
executed by the Company, the Xxxxxx Purchasers, each of the Holders and the
other investors signatory thereto.
“Xxxxxx
Loan Agreement”
means
that certain Loan and Security Agreement dated as of November ___, 2008 by
and
among the Company and its Subsidiaries and ACF CGS, L.L.C. (the “Xxxxxx
Purchasers”
,
and
such agreement, the
“Xxxxxx
Loan Agreement”).
“Bankruptcy
Event”
means
any of the following events: (a) the Company or any Significant Subsidiary
(as
such term is defined in Rule 1-02(w) of Regulation S-X) thereof commences a
case
or other proceeding under any bankruptcy, reorganization, arrangement,
adjustment of debt, relief of debtors, dissolution, insolvency or liquidation
or
similar law of any jurisdiction relating to the Company or any Significant
Subsidiary thereof, (b) there is commenced against the Company or any
Significant Subsidiary thereof any such case or proceeding that is not dismissed
within 60 days after commencement, (c) the Company or any Significant Subsidiary
thereof is adjudicated insolvent or bankrupt or any order of relief or other
order approving any such case or proceeding is entered, (d) the Company or
any
Significant Subsidiary thereof suffers any appointment of any custodian or
the
like for it or any substantial part of its property that is not discharged
or
stayed within 60 calendar days after such appointment, (e) the Company or any
Significant Subsidiary thereof makes a general assignment for the benefit of
creditors, (f) the Company or any Significant Subsidiary thereof calls a meeting
of its creditors with a view to arranging a composition, adjustment or
restructuring of its debts or (g) the Company or any Significant Subsidiary
thereof, by any act or failure to act, expressly indicates its consent to,
approval of or acquiescence in any of the foregoing or takes any corporate
or
other action for the purpose of effecting any of the foregoing.
2
“Base
Conversion Price”
shall
have the meaning set forth in Section 5(b).
“Beneficial
Ownership Limitation”
shall
have the meaning set forth in Section 4(c).
“Business
Day”
means
any day except any Saturday, any Sunday, any day which shall be a federal legal
holiday in the United States or any day on which banking institutions in the
State of New York are authorized or required by law or other governmental action
to close.
“Buy-In”
shall
have the meaning set forth in Section 4(d)(v).
“Change
of Control Transaction”
means
the occurrence after the date hereof of any of (a) an acquisition after the
date
hereof by an individual or legal entity or “group” (as described in Rule
13d-5(b)(1) promulgated under the Exchange Act) of effective control (whether
through legal or beneficial ownership of capital stock of the Company, by
contract or otherwise) of in excess of 40% of the voting securities of the
Company (other than by means of conversion or exercise of the Debentures and
the
Securities issued together with the Debentures), (b) the Company merges into
or
consolidates with any other Person, or any Person merges into or consolidates
with the Company and, after giving effect to such transaction, the stockholders
of the Company immediately prior to such transaction own less than 60% of the
aggregate voting power of the Company or the successor entity of such
transaction, or (c) the Company sells or transfers all or substantially all
of
its assets to another Person and the stockholders of the Company immediately
prior to such transaction own less than 60% of the aggregate voting power of
the
acquiring entity immediately after the transaction, (d) a replacement at one
time or within a three year period of more than one-half of the members of
the
Board of Directors which is not approved by a majority of those individuals
who
are members of the Board of Directors on the date hereof (or by those
individuals who are serving as members of the Board of Directors on any date
whose nomination to the Board of Directors was approved by a majority of the
members of the Board of Directors who are members on the date hereof), or (e)
the execution by the Company of an agreement to which the Company is a party
or
by which it is bound, providing for any of the events set forth in clauses
(a)
through (d) above.
“Conversion”
shall
have the meaning ascribed to such term in Section 4.
“Conversion
Date”
shall
have the meaning set forth in Section 4(a).
“Conversion
Price”
shall
have the meaning set forth in Section 4(b).
3
“Conversion
Schedule”
means
the Conversion Schedule in the form of Schedule
1
attached
hereto.
“Conversion
Shares”
means,
collectively, the shares of Common Stock issuable upon conversion of this
Debenture in accordance with the terms hereof.
“Debenture
Register”
shall
have the meaning set forth in Section 2(c).
“Dilutive
Issuance”
shall
have the meaning set forth in Section 5(b).
“Dilutive
Issuance Notice”
shall
have the meaning set forth in Section 5(b).
“Equity
Conditions”
means,
during the period in question, (a)
the Company shall have duly honored all conversions and redemptions scheduled
to
occur or occurring by virtue of one or more Notices of Conversion of the Holder,
if any, (b) the Company shall have paid all liquidated damages and other amounts
owing to the Holder in respect of this Debenture, (c)(i)
there is an effective Registration Statement pursuant to which the Holder is
permitted to utilize the prospectus thereunder to resell all of the shares
of
Common Stock issuable pursuant to the Transaction Documents or (ii) all of
the
Conversion Shares issuable pursuant to the Transaction Documents may be resold
pursuant to Rule 144 without volume or manner-of-sale restrictions as determined
by the counsel to the Company pursuant to a written opinion letter to such
effect, addressed and acceptable to the Transfer Agent and the Holder, (d)
the
Common Stock is trading on a Trading Market and all of the shares issuable
pursuant to the Transaction Documents are listed or quoted for trading on such
Trading Market (and the Company believes, in good faith, that trading of the
Common Stock on a Trading Market will continue uninterrupted for the foreseeable
future), (e) there is a sufficient number of authorized but unissued and
otherwise unreserved shares of Common Stock for the issuance of all of the
shares issuable pursuant to the Transaction Documents, (f) there is no existing
Event of Default or no existing event which, with the passage of time or the
giving of notice, would constitute an Event of Default, (g) the issuance of
the
shares in question (or, in the case of a Quarterly Redemption, the shares
issuable upon conversion in full of the Quarterly Redemption Amount to the
Holder would not violate the limitations set forth in Section 4(c) herein,
(h)
there has been no public announcement of a pending or proposed Fundamental
Transaction or Change of Control Transaction that has not been consummated,
(i)
the Holder is not in possession of any information provided by the Company
that
constitutes, or may constitute, material non-public information and (j) for
each
Trading Day in a period of 20 consecutive Trading Days prior to the applicable
date in question, the daily dollar trading volume for the Common Stock on the
principal Trading Market exceeds $75,000 per Trading Day.
“Event
of Default”
shall have the meaning set forth in Section 8(a).
4
“Final
Closing Date”
means the date of acquisition of ownership by Capital Growth Acquisition, Inc.
of the purchased membership interests in Vanco Direct USA, LLC, a Delaware
limited liability company pursuant to the terms of the ILPA.
“Fundamental
Transaction”
shall
have the meaning set forth in Section 5(e).
“Holders”
means
the holders of the amended and restated debentures that have been exchanged
for
the original debentures (or substitutes thereof) issued pursuant to the Purchase
Agreement dated March 11, 2008 between the Company and purchasers of $19,000,000
of debentures issued thereunder.
“Mandatory
Default Amount”
means
the sum of (a) the greater of (i) the outstanding principal amount of this
Debenture, divided by the Conversion Price on the date the Mandatory Default
Amount is either (A) demanded (if demand or notice is required to create an
Event of Default) or otherwise due or (B) paid in full, whichever has a lower
Conversion Price, multiplied by the VWAP on the date the Mandatory Default
Amount is either (x) demanded or otherwise due or (y) paid in full, whichever
has a higher VWAP, or (ii) 120% of the outstanding principal amount of this
Debenture plus (b) all other amounts, costs, expenses and liquidated damages
due
in respect of this Debenture, including, without limitation, any accrued but
unpaid default interest.
“New
York Courts”
shall
have the meaning set forth in Section 9(d).
“Notice
of Conversion”
shall
have the meaning set forth in Section 4(a).
“November
Debentures”
means
the debentures issued pursuant to the November Purchase Agreement.
“November
Purchase Agreement”
means
the Securities Purchase Agreement, dated as of November __, 2008, among the
Company and the original Holders, as amended, modified or supplemented from
time
to time in accordance with its terms.
“Original
Issue Date”
means
the date of the first issuance of the Debentures, regardless of any transfers
of
any Debenture and regardless of the number of instruments which may be issued
to
evidence such Debentures.
“Permitted
Indebtedness”
means (a) the
indebtedness evidenced by the Debentures, (b) the Indebtedness existing on
the
Original Issue Date and set forth on Schedule
3.1(aa)
attached
to the Purchase Agreement, (c) lease obligations and purchase money indebtedness
of up to $250,000, in the aggregate, incurred in connection with the acquisition
of capital assets and lease obligations with respect to newly acquired or leased
assets, (d)
the
Senior Debt, (e) the Administrator Debenture (as defined in the November
Purchase Agreement) issued to the Administrator (as defined in the November
Purchase Agreement), and (f) Magenta employee notes in the amount of
approximately $87,000.
5
“Permitted
Lien”
means
the individual and collective reference to the following: (a) Liens for taxes,
assessments and other governmental charges or levies not yet due or Liens for
taxes, assessments and other governmental charges or levies being contested
in
good faith and by appropriate proceedings for which adequate reserves (in the
good faith judgment of the management of the Company) have been established
in
accordance with GAAP; (b) Liens imposed by law which were incurred in the
ordinary course of the Company’s business, such as carriers’, warehousemen’s and
mechanics’ Liens, statutory landlords’ Liens, and other similar Liens arising in
the ordinary course of the Company’s business, and which (x) do not individually
or in the aggregate materially detract from the value of such property or assets
or materially impair the use thereof in the operation of the business of the
Company and its consolidated Subsidiaries or (y) are being contested in good
faith by appropriate proceedings, which proceedings have the effect of
preventing for the foreseeable future the forfeiture or sale of the property
or
asset subject to such Lien; (c) Liens incurred in connection with Permitted
Indebtedness under clauses (a) and (d) thereunder; and (d) Liens incurred in
connection with Permitted Indebtedness under clause (c) thereunder, provided
that such Liens are not secured by assets of the Company or its Subsidiaries
other than the assets so acquired or leased.
“Purchase
Agreement”
means
the Securities Purchase Agreement, dated as of March 11, 2008 among the Company
and the original Holders, as amended, modified or supplemented from time to
time
in accordance with its terms.
“Quarterly
Conversion Period”
shall
have the meaning set forth in Section 6(a) hereof.
“Quarterly
Conversion Price”
shall
have the meaning set forth in Section 6(a) hereof.
“Quarterly
Redemption”
means
the redemption of this Debenture pursuant to Section 6(a) hereof.
“Quarterly
Redemption Amount”
means,
as to a Quarterly Redemption, $[_____1,
plus
liquidated damages and any other amounts then owing to the Holder in respect
of
this Debenture. The “Aggregate Quarterly Redemption Amount” hereunder means
$____2.
“Quarterly
Redemption Date”
means
January 1, April 1, July 1 and October 1, commencing immediately upon July
1,
2009 and terminating upon the full redemption of the Aggregate Quarterly
Redemption Amount plus liquidated damages and any other amounts then owing
to
the Holder in respect of this Debenture.
______________________________
1
A-B/21,
where A = the new face amount of this Debenture and B = the initial Subscription
Amount
2
A-B
6
“Quarterly
Redemption Notice”
shall
have the meaning set forth in Section [6(b) hereof.
“Securities
Act”
means
the Securities Act of 1933, as amended, and the rules and regulations
promulgated thereunder.
“Senior
Debt”
shall
have the meaning set forth in the Xxxxxx Intercreditor Agreement.
“Share
Delivery Date”
shall
have the meaning set forth in Section 4(d)(ii).
“Subsidiary”
shall
have the meaning set forth in the Purchase Agreement.
“Trading
Day”
means
a
day on which the New York Stock Exchange is open for business.
“Trading
Market”
means
the following markets or exchanges on which the Common Stock is listed or quoted
for trading on the date in question: the American Stock Exchange, the Nasdaq
Capital Market, the Nasdaq Global Market, the Nasdaq Global Select Market,
the
New York Stock Exchange or the OTC Bulletin Board.
“Transaction
Documents”
shall
have the meaning set forth in the Purchase Agreement.
“VWAP”
means,
for any date, the price determined by the first of the following clauses that
applies: (a) if the Common Stock is then listed or quoted on a Trading Market,
the daily volume weighted average price of the Common Stock for such date (or
the nearest preceding date) on the Trading Market on which the Common Stock
is
then listed or quoted for trading as reported by Bloomberg L.P. (based on a
Trading Day from 9:30 a.m. (New York City time) to 4:02 p.m. (New York City
time)); (b) if the OTC Bulletin Board is not a Trading Market, the volume
weighted average price of the Common Stock for such date (or the nearest
preceding date) on the OTC Bulletin Board; (c) if the Common Stock is not then
quoted for trading on the OTC Bulletin Board and if prices for the Common Stock
are then reported in the “Pink Sheets” published by Pink OTC Markets, Inc. (or a
similar organization or agency succeeding to its functions of reporting prices),
the most recent bid price per share of the Common Stock so reported; or
(d) in all other cases, the fair market value of a share of Common Stock as
determined by an independent appraiser selected in good faith by the Holder
and
reasonably acceptable to the Company.
Section
2. Interest
and Prepayment.
The
Company acknowledges and agrees that this Debenture was issued at an original
issue discount. Other than default interest, no interest payments shall be
made
on this Debenture. Except as otherwise set forth in this Debenture, the Company
may not prepay any portion of the principal amount of this Debenture without
the
prior written consent of the Holder.
7
Section
3. Registration
of Transfers and Exchanges.
a) Different
Denominations.
This
Debenture is exchangeable for an equal aggregate principal amount of Debentures
of different authorized denominations, as requested by the Holder surrendering
the same. No service charge will be payable for such registration of transfer
or
exchange.
b) Investment
Representations.
This
Debenture has been issued subject to certain investment representations of
the
original Holder set forth in the Purchase Agreement and may be transferred
or
exchanged only in compliance with the Purchase Agreement and applicable federal
and state securities laws and regulations.
c) Reliance
on Debenture Register.
Prior
to due presentment for transfer to the Company of this Debenture, the Company
and any agent of the Company may treat the Person in whose name this Debenture
is duly registered on the Debenture Register as the owner hereof for the purpose
of receiving payment as herein provided and for all other purposes, whether
or
not this Debenture is overdue, and neither the Company nor any such agent shall
be affected by notice to the contrary.
Section
4. Conversion.
a) Voluntary
Conversion.
At any
time after the Original Issue Date until this Debenture is no longer
outstanding, this Debenture shall be convertible, in whole or in part, into
shares of Common Stock at the option of the Holder, at any time and from time
to
time (subject to the conversion limitations set forth in Section 4(c)
hereof). The Holder shall effect conversions by delivering to the Company a
Notice of Conversion, the form of which is attached hereto as Annex
A
(each, a
“Notice
of Conversion”),
specifying therein the principal amount of this Debenture to be converted and
the date on which such conversion shall be effected (such date, the
“Conversion
Date”).
If no
Conversion Date is specified in a Notice of Conversion, the Conversion Date
shall be the date that such Notice of Conversion is deemed delivered hereunder.
To effect conversions hereunder, the Holder shall not be required to physically
surrender this Debenture to the Company unless the entire principal amount
of
this Debenture, has been so converted. Conversions hereunder shall have the
effect of lowering the outstanding principal amount of this Debenture in an
amount equal to the applicable conversion. The Holder and the Company shall
maintain records showing the principal amount(s) converted and the date of
such
conversion(s). The Company may deliver an objection to any Notice of Conversion
within 2 Business Days of delivery of such Notice of Conversion. In the event
of
any dispute or discrepancy, the records of the Holder shall be controlling
and
determinative in the absence of manifest error. The
Holder, and any assignee by acceptance of this Debenture, acknowledge and agree
that, by reason of the provisions of this paragraph, following conversion of
a
portion of this Debenture, the unpaid and unconverted principal amount of this
Debenture may be less than the amount stated on the face
hereof.
8
b) Conversion
Price.
The
conversion price in effect on any Conversion Date shall be equal to $0.24,
subject
to adjustment herein (the “Conversion
Price”).
c) Conversion
Limitations.
The
Company shall not effect any conversion of this Debenture, and a Holder shall
not have the right to convert any portion of this Debenture, to the extent
that
after giving effect to the conversion set forth on the applicable Notice of
Conversion, the Holder (together with the Holder’s Affiliates, and any other
person or entity acting as a group together with the Holder or any of the
Holder’s Affiliates) would beneficially own in excess of the Beneficial
Ownership Limitation (as defined below). For purposes of the foregoing
sentence, the number of shares of Common Stock beneficially owned by the Holder
and its Affiliates shall include the number of shares of Common Stock issuable
upon conversion of this Debenture with respect to which such determination
is
being made, but shall exclude the number of shares of Common Stock which are
issuable upon (A) conversion of the remaining, unconverted principal amount
of
this Debenture beneficially owned by the Holder or any of its Affiliates and
(B)
exercise or conversion of the unexercised or unconverted portion of any other
securities of the Company subject to a limitation on conversion or exercise
analogous to the limitation contained herein (including, without limitation,
any
other Debentures or the Warrants) beneficially owned by the Holder or any of
its
Affiliates. Except as set forth in the preceding sentence, for purposes of
this Section 4(c), beneficial ownership shall be calculated in accordance with
Section 13(d) of the Exchange Act and the rules and regulations promulgated
thereunder. To the extent that the limitation contained in this Section 4(c)
applies, the determination of whether this Debenture is convertible (in relation
to other securities owned by the Holder together with any Affiliates) and of
which principal amount of this Debenture is convertible shall be in the sole
discretion of the Holder, and the submission of a Notice of Conversion shall
be
deemed to be the Holder’s determination of whether this Debenture may be
converted (in relation to other securities owned by the Holder together with
any
Affiliates) and which principal amount of this Debenture is convertible, in
each
case subject to the Beneficial Ownership Limitation. To ensure compliance with
this restriction, the Holder will be deemed to represent to the Company each
time it delivers a Notice of Conversion that such Notice of Conversion has
not
violated the restrictions set forth in this paragraph and the Company shall
have
no obligation to verify or confirm the accuracy of such determination.
In
addition, a determination as to any group status as contemplated above shall
be
determined in accordance with Section 13(d) of the Exchange Act and
the
rules and regulations promulgated thereunder. For
purposes of this Section 4(c), in determining the number of outstanding shares
of Common Stock, the Holder may rely on the number of outstanding shares of
Common Stock as stated in the most recent of the following: (A) the Company’s
most recent periodic or annual report, as the case may be; (B) a more recent
public announcement by the Company; or (C) a more recent notice by the Company
or the Company’s transfer agent setting forth the number of shares of Common
Stock outstanding. Upon the written or oral request of a Holder, the
Company shall within two Trading Days confirm orally and in writing to the
Holder the number of shares of Common Stock then outstanding. In any case,
the number of outstanding shares of Common Stock shall be determined after
giving effect to the conversion or exercise of securities of the Company,
including this Debenture, by the Holder or its Affiliates since the date as
of
which such number of outstanding shares of Common Stock was reported. The
“Beneficial
Ownership Limitation”
shall
be 4.99% of the number of shares of the Common Stock outstanding immediately
after giving effect to the issuance of shares of Common Stock issuable upon
conversion of this Debenture held by the Holder. The Holder, upon not less
than
61 days’ prior notice to the Company, may increase or decrease the Beneficial
Ownership Limitation provisions of this Section 4(c), provided that the
Beneficial Ownership Limitation in no event exceeds 9.99% of the number of
shares of the Common Stock outstanding immediately after giving effect to the
issuance of shares of Common Stock upon conversion of this Debenture held by
the
Holder and the Beneficial Ownership Limitation provisions of this Section 4(c)
shall continue to apply. Any such increase or decrease will not be effective
until the 61st
day
after such notice is delivered to the Company. The
Beneficial Ownership Limitation provisions of this paragraph shall be construed
and implemented in a manner otherwise than in strict conformity with the terms
of this Section 4(c) to correct this paragraph (or any portion hereof) which
may
be defective or inconsistent with the intended Beneficial Ownership Limitation
contained herein or to make changes or supplements necessary or desirable to
properly give effect to such limitation.
The
limitations contained in this paragraph shall apply to a successor holder of
this
Debenture.
9
d) |
Mechanics
of Conversion.
|
i. Conversion
Shares Issuable Upon Conversion of Principal Amount.
The
number of Conversion Shares issuable upon a conversion hereunder shall be
determined by the quotient obtained by dividing (x) the outstanding principal
amount of this Debenture to be converted by (y) the Conversion
Price.
ii. Delivery
of Certificate Upon Conversion.
Not
later than three Trading Days after each Conversion Date (the “Share
Delivery Date”),
the
Company shall deliver, or cause to be delivered, to the Holder a certificate
or
certificates representing the Conversion Shares which, on or after the earlier
of (i) the six month anniversary of the Original Issue Date or (ii) the
Effective Date, shall be free of restrictive legends and trading restrictions
(other than those which may then be required by the Purchase Agreement)
representing the number of Conversion Shares being acquired upon the conversion
of this Debenture.
iii. Failure
to Deliver Certificates.
If in
the case of any Notice of Conversion such certificate or certificates are not
delivered to or as directed by the applicable Holder by the third Trading Day
after the Conversion Date, the Holder shall be entitled to elect by written
notice to the Company at any time on or before its receipt of such certificate
or certificates, to rescind such Conversion, in which event the Company shall
promptly return to the Holder any original Debenture delivered to the Company
and the Holder shall promptly return to the Company the Common Stock
certificates representing the principal amount of this Debenture unsuccessfully
tendered for conversion to the Company.
10
iv. Obligation
Absolute; Partial Liquidated Damages.
The
Company’s obligations to issue and deliver the Conversion Shares upon conversion
of this Debenture in accordance with the terms hereof are absolute and
unconditional, irrespective of any action or inaction by the Holder to enforce
the same, any waiver or consent with respect to any provision hereof, the
recovery of any judgment against any Person or any action to enforce the same,
or any setoff, counterclaim, recoupment, limitation or termination, or any
breach or alleged breach by the Holder or any other Person of any obligation
to
the Company or any violation or alleged violation of law by the Holder or any
other Person, and irrespective of any other circumstance which might otherwise
limit such obligation of the Company to the Holder in connection with the
issuance of such Conversion Shares; provided,
however,
that
such delivery shall not operate as a waiver by the Company of any such action
the Company may have against the Holder. In the event the Holder of this
Debenture shall elect to convert any or all of the outstanding principal amount
hereof, the Company may not refuse conversion based on any claim that the Holder
or anyone associated or affiliated with the Holder has been engaged in any
violation of law, agreement or for any other reason, unless an injunction from
a
court, on notice to Holder, restraining and or enjoining conversion of all
or
part of this Debenture shall have been sought and obtained, and the Company
posts a surety bond for the benefit of the Holder in the amount of 150% of
the
outstanding principal amount of this Debenture, which is subject to the
injunction, which bond shall remain in effect until the completion of
arbitration/litigation of the underlying dispute and the proceeds of which
shall
be payable to the Holder to the extent it obtains judgment. In the absence
of
such injunction, the Company shall issue Conversion Shares or, if applicable,
cash, upon a properly noticed conversion. If the Company fails for any reason
to
deliver to the Holder such certificate or certificates pursuant to Section
4(d)(ii) by the fifth Trading Day after the Conversion Date (the “Share
Delivery Deadline”),
the
Company shall pay to the Holder, in cash, as liquidated damages and not as
a
penalty, for each $1,000 of principal amount being converted, $10 per Trading
Day (increasing to $20 per Trading Day on the fifth (5th)
Trading
Day after such liquidated damages begin to accrue) for each Trading Day after
such fifth (5rd)
Trading
Day until such certificates are delivered. Nothing herein shall limit a Holder’s
right to pursue actual damages or declare an Event of Default pursuant to
Section 8 hereof for the Company’s failure to deliver Conversion Shares within
the period specified herein and the Holder shall have the right to pursue all
remedies available to it hereunder, at law or in equity including, without
limitation, a decree of specific performance and/or injunctive relief. The
exercise of any such rights shall not prohibit the Holder from seeking to
enforce damages pursuant to any other Section hereof or under applicable law.
Notwithstanding anything to the contrary contained herein, if at any time prior
to the Senior Creditor Repayment (as defined in the Xxxxxx Intercreditor
Agreement) the Company is prohibited from paying, and the Holder is prohibited
from receiving, cash payments of liquidated damages pursuant to this Section,
at
the option of the Holder upon written notice to the Company, such amounts
otherwise payable in cash pursuant to this Section shall either accrue, or
be
payable in the form of shares of Common Stock. The price at which shares of
Common Stock issuable in lieu of the cash payment for liquidated damages
hereunder shall be equal to the lesser of (x) 90% of the average of the 10
consecutive VWAPs immediately prior to the date of the applicable Share Delivery
Deadline, (y) 90% of the average of the 10 consecutive VWAPs immediately prior
to the date such shares are actually issued or (z) the then applicable
Conversion Price.
11
v. Compensation
for Buy-In on Failure to Timely Deliver Certificates Upon
Conversion.
In
addition to any other rights available to the Holder, if the Company fails
for
any reason to deliver to the Holder such certificate or certificates by the
Share Delivery Date pursuant to Section 4(d)(ii), and if after such Share
Delivery Date the Holder is required by its brokerage firm to purchase (in
an
open market transaction or otherwise), or the Holder’s brokerage firm otherwise
purchases, shares of Common Stock to deliver in satisfaction of a sale by the
Holder of the Conversion Shares which the Holder was entitled to receive upon
the conversion relating to such Share Delivery Date (a “Buy-In”),
then
the Company shall (A) pay in cash to the Holder (in addition to any other
remedies available to or elected by the Holder) the amount by which (x) the
Holder’s total purchase price (including any brokerage commissions) for the
Common Stock so purchased exceeds (y) the product of (1) the aggregate number
of
shares of Common Stock that the Holder was entitled to receive from the
conversion at issue multiplied by (2) the actual sale price at which the sell
order giving rise to such purchase obligation was executed (including any
brokerage commissions) and (B) at the option of the Holder, either reissue
(if
surrendered) this Debenture in a principal amount equal to the principal amount
of the attempted conversion or deliver to the Holder the number of shares of
Common Stock that would have been issued if the Company had timely complied
with
its delivery requirements under Section 4(d)(ii). For example, if the Holder
purchases Common Stock having a total purchase price of $11,000 to cover a
Buy-In with respect to an attempted conversion of this Debenture with respect
to
which the actual sale price of the Conversion Shares (including any brokerage
commissions) giving rise to such purchase obligation was a total of $10,000
under clause (A) of the immediately preceding sentence, the Company shall be
required to pay the Holder $1,000. The Holder shall provide the Company written
notice indicating the amounts payable to the Holder in respect of the Buy-In
and, upon request of the Company, evidence of the amount of such loss. Nothing
herein shall limit a Holder’s right to pursue any other remedies available to it
hereunder, at law or in equity including, without limitation, a decree of
specific performance and/or injunctive relief with respect to the Company’s
failure to timely deliver certificates representing shares of Common Stock
upon
conversion of this Debenture as required pursuant to the terms
hereof.
12
vi. Reservation
of Shares Issuable Upon Conversion.
As of
November ___, 2008, the Company has reserved _________3
shares
of Common Stock for issuance upon conversion this Debenture. After the
Authorized Share Approval (as defined in the November Purchase Agreement),
the
Company covenants that it will at all times reserve and keep available out
of
its authorized and unissued shares of Common Stock for the sole purpose of
issuance upon conversion of this Debenture and payment of redemption amounts
on
this Debenture, each as herein provided, free from preemptive rights or any
other actual contingent purchase rights of Persons other than the Holder (and
the other holders of the Debentures), not less than such aggregate number of
shares of the Common Stock as shall (subject to the terms and conditions set
forth in the Purchase Agreement) be issuable (taking into account the
adjustments and restrictions of Section 5) upon the conversion of the
outstanding principal amount of this Debenture and payment of redemption amounts
hereunder. The Company covenants that all shares of Common Stock that shall
be
so issuable shall, upon issue, be duly authorized, validly issued, fully paid
and nonassessable and, if the Registration Statement is then effective under
the
Securities Act, shall be registered for public sale in accordance with such
Registration Statement.
vii. Fractional
Shares.
No
fractional shares or scrip representing fractional shares shall be issued upon
the conversion of this Debenture. As to any fraction of a share which Holder
would otherwise be entitled to purchase upon such conversion, the Company shall
at its election, either pay a cash adjustment in respect of such final fraction
in an amount equal to such fraction multiplied by the Conversion Price or round
up to the next whole share.
viii. Transfer
Taxes.
The
issuance of certificates for shares of the Common Stock on conversion of this
Debenture shall be made without charge to the Holder hereof for any documentary
stamp or similar taxes that may be payable in respect of the issue or delivery
of such certificates, provided that, the Company shall not be required to pay
any tax that may be payable in respect of any transfer involved in the issuance
and delivery of any such certificate upon conversion in a name other than that
of the Holder of this Debenture so converted and the Company shall not be
required to issue or deliver such certificates unless or until the person or
persons requesting the issuance thereof shall have paid to the Company the
amount of such tax or shall have established to the satisfaction of the Company
that such tax has been paid.
Section
5. Certain
Adjustments.
_________________________
3
Original
Subscription Amount under March Purchase Agreement divided by
$0.50.
13
a) Stock
Dividends and Stock Splits.
If the
Company, at any time while this Debenture is outstanding: (i) pays a stock
dividend or otherwise makes a distribution or distributions payable in shares
of
Common Stock on shares of Common Stock or any Common Stock Equivalents (which,
for avoidance of doubt, shall not include any shares of Common Stock issued
by
the Company upon conversion of, or payment of a redemption amount on, the
Debentures), (ii) subdivides outstanding shares of Common Stock into a larger
number of shares, (iii) combines (including by way of a reverse stock split)
outstanding shares of Common Stock into a smaller number of shares or (iv)
issues, in the event of a reclassification of shares of the Common Stock, any
shares of capital stock of the Company, then the Conversion Price shall be
multiplied by a fraction of which the numerator shall be the number of shares
of
Common Stock (excluding any treasury shares of the Company) outstanding
immediately before such event and of which the denominator shall be the number
of shares of Common Stock outstanding immediately after such event. Any
adjustment made pursuant to this Section shall become effective immediately
after the record date for the determination of stockholders entitled to receive
such dividend or distribution and shall become effective immediately after
the
effective date in the case of a subdivision, combination or
re-classification.
b) Subsequent
Equity Sales.
If, at
any time while this Debenture is outstanding, the Company or any Subsidiary,
as
applicable, sells or grants any option to purchase or sells or grants any right
to reprice, or otherwise disposes of or issues (or announces any sale, grant
or
any option to purchase or other disposition), any Common Stock or Common Stock
Equivalents entitling any Person to acquire shares of Common Stock at an
effective price per share that is lower than the then Conversion Price (such
lower price, the “Base
Conversion Price”
and
such issuances, collectively, a “Dilutive
Issuance”)
(if
the holder of the Common Stock or Common Stock Equivalents so issued shall
at
any time, whether by operation of purchase price adjustments, reset provisions,
floating conversion, exercise or exchange prices or otherwise, or due to
warrants, options or rights per share which are issued in connection with such
issuance, be entitled to receive shares of Common Stock at an effective price
per share that is lower than the Conversion Price, such issuance shall be deemed
to have occurred for less than the Conversion Price on such date of the Dilutive
Issuance), then the Conversion Price shall be reduced to equal the Base
Conversion Price. Such adjustment shall be made whenever such Common Stock
or
Common Stock Equivalents are issued. Notwithstanding
the foregoing, no adjustment will be made under this Section 5(b) in respect
of
an Exempt Issuance.
If the
Company enters into a Variable Rate Transaction, despite the prohibition set
forth in the Purchase Agreement, the Company shall be deemed to have issued
Common Stock or Common Stock Equivalents at the lowest possible conversion
price
at which such securities may be converted or exercised. The Company shall notify
the Holder in writing, no later than 1 Business Day following the issuance
of
any Common Stock or Common Stock Equivalents subject to this Section 5(b),
indicating therein the applicable issuance price, or applicable reset price,
exchange price, conversion price and other pricing terms (such notice, the
“Dilutive
Issuance Notice”).
For
purposes of clarification, whether or not the Company provides a Dilutive
Issuance Notice pursuant to this Section 5(b), upon the occurrence of any
Dilutive Issuance, the Holder is entitled to receive a number of Conversion
Shares based upon the Base Conversion Price on or after the date of such
Dilutive Issuance, regardless of whether the Holder accurately refers to the
Base Conversion Price in the Notice of Conversion.
14
c) Subsequent
Rights Offerings.
If the
Company, at any time while the Debenture is outstanding, shall issue rights,
options or warrants to all holders of Common Stock (and not to Holders)
entitling them to subscribe for or purchase shares of Common Stock at a price
per share that is lower than the VWAP on the record date referenced below,
then
the Conversion Price shall be multiplied by a fraction of which the denominator
shall be the number of shares of the Common Stock outstanding on the date of
issuance of such rights or warrants plus the number of additional shares of
Common Stock offered for subscription or purchase, and of which the numerator
shall be the number of shares of the Common Stock outstanding on the date of
issuance of such rights or warrants plus the number of shares which the
aggregate offering price of the total number of shares so offered (assuming
delivery to the Company in full of all consideration payable upon exercise
of
such rights, options or warrants) would purchase at such VWAP. Such adjustment
shall be made whenever such rights or warrants are issued, and shall become
effective immediately after the record date for the determination of
stockholders entitled to receive such rights, options or warrants.
d) Pro
Rata Distributions.
If the
Company, at any time while this Debenture is outstanding, distributes to all
holders of Common Stock (and not to the Holders) evidences of its indebtedness
or assets (including cash and cash dividends) or rights or warrants to subscribe
for or purchase any security (other than the Common Stock, which shall be
subject to Section 5(b)), then in each such case the Conversion Price shall
be
adjusted by multiplying such Conversion Price in effect immediately prior to
the
record date fixed for determination of stockholders entitled to receive such
distribution by a fraction of which the denominator shall be the VWAP determined
as of the record date mentioned above, and of which the numerator shall be
such
VWAP on such record date less the then fair market value at such record date
of
the portion of such assets or evidence of indebtedness so distributed applicable
to 1 outstanding share of the Common Stock as determined by the Board of
Directors of the Company in good faith. In either case the adjustments shall
be
described in a statement delivered to the Holder describing the portion of
assets or evidences of indebtedness so distributed or such subscription rights
applicable to 1 share of Common Stock. Such adjustment shall be made whenever
any such distribution is made and shall become effective immediately after
the
record date mentioned above.
e) Fundamental
Transaction.
If, at
any time while this Debenture is outstanding, (i) the Company effects any merger
or consolidation of the Company with or into another Person, (ii) the Company
effects any sale of all or substantially all of its assets in one transaction
or
a series of related transactions, (iii) any tender offer or exchange offer
(whether by the Company or another Person) is completed pursuant to which
holders of Common Stock are permitted to tender or exchange their shares for
other securities, cash or property, or (iv) the Company effects any
reclassification of the Common Stock or any compulsory share exchange pursuant
to which the Common Stock is effectively converted into or exchanged for other
securities, cash or property (in any such case, a “Fundamental
Transaction”),
then,
upon any subsequent conversion of this Debenture, the Holder shall have the
right to receive, for each Conversion Share that would have been issuable upon
such conversion immediately prior to the occurrence of such Fundamental
Transaction, the same kind and amount of securities, cash or property as it
would have been entitled to receive upon the occurrence of such Fundamental
Transaction if it had been, immediately prior to such Fundamental Transaction,
the holder of 1 share of Common Stock (the “Alternate
Consideration”).
For
purposes of any such conversion, the determination of the Conversion Price
shall
be appropriately adjusted to apply to such Alternate Consideration based on
the
amount of Alternate Consideration issuable in respect of 1 share of Common
Stock
in such Fundamental Transaction, and the Company shall apportion the Conversion
Price among the Alternate Consideration in a reasonable manner reflecting the
relative value of any different components of the Alternate Consideration.
If
holders of Common Stock are given any choice as to the securities, cash or
property to be received in a Fundamental Transaction, then the Holder shall
be
given the same choice as to the Alternate Consideration it receives upon any
conversion of this Debenture following such Fundamental Transaction. To the
extent necessary to effectuate the foregoing provisions, any successor to the
Company or surviving entity in such Fundamental Transaction shall issue to
the
Holder a new debenture consistent with the foregoing provisions and evidencing
the Holder’s right to convert such debenture into Alternate Consideration. The
terms of any agreement pursuant to which a Fundamental Transaction is effected
shall include terms requiring any such successor or surviving entity to comply
with the provisions of this Section 5(e) and insuring that this Debenture (or
any such replacement security) will be similarly adjusted upon any subsequent
transaction analogous to a Fundamental Transaction.
15
f) Calculations.
All
calculations under this Section 5 shall be made to the nearest cent or the
nearest 1/100th of a share, as the case may be. For purposes of this Section
5,
the number of shares of Common Stock deemed to be issued and outstanding as
of a
given date shall be the sum of the number of shares of Common Stock (excluding
any treasury shares of the Company) issued and outstanding.
g) Notice
to the Holder.
i. Adjustment
to Conversion Price.
Whenever the Conversion Price is adjusted pursuant to any provision of this
Section 5, the Company shall promptly deliver to each Holder a notice setting
forth the Conversion Price after such adjustment and setting forth a brief
statement of the facts requiring such adjustment.
ii. Notice
to Allow Conversion by Holder.
If (A)
the Company shall declare a dividend (or any other distribution in whatever
form) on the Common Stock, (B) the Company shall declare a special nonrecurring
cash dividend on or a redemption of the Common Stock, (C) the Company shall
authorize the granting to all holders of the Common Stock of rights or warrants
to subscribe for or purchase any shares of capital stock of any class or of
any
rights, (D) the approval of any stockholders of the Company shall be required
in
connection with any reclassification of the Common Stock, any consolidation
or
merger to which the Company is a party, any sale or transfer of all or
substantially all of the assets of the Company, of any compulsory share exchange
whereby the Common Stock is converted into other securities, cash or property
or
(E) the
Company shall authorize the voluntary or involuntary dissolution, liquidation
or
winding up of the affairs of the Company, then, in each case, the Company shall
cause to be filed at each office or agency maintained for the purpose of
conversion of this Debenture, and shall cause to be delivered
to the Holder at its last address as it shall appear upon the Debenture
Register, at least twenty (20) calendar days prior to the applicable record
or
effective date hereinafter specified, a notice stating (x)
the
date on which a record is to be taken for the purpose of such dividend,
distribution, redemption, rights or warrants, or if a record is not to be taken,
the date as of which the holders of the Common Stock of record to be entitled
to
such dividend, distributions, redemption, rights or warrants are to be
determined or (y) the date on which such reclassification, consolidation,
merger, sale, transfer or share exchange is expected to become effective or
close, and the date as of which it is expected that holders of the Common Stock
of record shall be entitled to exchange their shares of the Common Stock for
securities, cash or other property deliverable upon such reclassification,
consolidation, merger, sale, transfer or share exchange, provided that the
failure to deliver such notice or any defect therein or in the delivery thereof
shall not affect the validity of the corporate action required to be specified
in such notice. The Holder is entitled to convert this Debenture during the
20-day period commencing on the date of such notice through the effective date
of the event triggering such notice.
16
h) Other
Adjustments.
On the
210th
calendar
day following the Original Issue Date (the “Trigger
Date”),
the
Conversion Price shall be reduced to equal the lesser of (i) the then Conversion
Price and (ii) a price equal to 90% of the average of each of the VWAPs for
the
5 Trading Days immediately prior to the Trigger Date. For clarity, the
Conversion Price can only be adjusted downward pursuant to this Section 5(h).
Section
6. Quarterly
Redemption.
17
a) Quarterly
Redemption.
On each
Quarterly Redemption Date, the Company shall redeem the Quarterly Redemption
Amount (the “Quarterly
Redemption”).
The
Quarterly Redemption Amount payable on each Quarterly Redemption Date shall
be
paid in cash; provided,
however,
as to
any Quarterly Redemption and upon 30 Trading Days’ prior written irrevocable
notice (the “Quarterly
Redemption Notice”),
in
lieu of a cash redemption payment the Company may elect to pay all or part
of a
Quarterly Redemption Amount in Conversion Shares based on a conversion price
equal to the lesser of (i) the then Conversion Price and (ii) 90% of the
average
of the VWAPs for the 10 consecutive Trading Days ending on the Trading Day
that
is immediately prior to the applicable Quarterly Redemption Date (subject to
adjustment for any stock dividend, stock split, stock combination or other
similar event affecting the Common Stock during such 10 Trading Day period)
(the
price calculated during the 10 Trading Day period immediately prior to the
Quarterly Redemption Date, the “Quarterly
Conversion Price”
and
such 10 Trading Day period, the “Quarterly
Conversion Period”);
provided,
further,
that
the Company may not pay the Quarterly Redemption Amount in Conversion Shares
unless (y) from the date the Holder receives the duly delivered Quarterly
Redemption Notice through and until the date such Quarterly Redemption is
paid
in full, the Equity Conditions have been satisfied, unless waived in writing
by
the Holder, and (z) as to such Quarterly Redemption, prior to such Quarterly
Conversion Period (but not more than 5 Trading Days prior to the commencement
of
the Quarterly Conversion Period), the Company shall have delivered to the
Holder’s account with The Depository Trust Company a number of shares of Common
Stock to be applied against such Quarterly Redemption Amount equal to the
quotient of (x) the applicable Quarterly Redemption Amount divided by (y)
the
lesser of (A) the Conversion Price and (B) 90% of the average of the 10 VWAPs
during the period ending on the 3rd
Trading
Day immediately prior to the date of the Quarterly Redemption Notice (the
“Pre-Redemption
Conversion Shares”).
The
Holder may convert, pursuant to Section 4(a), any principal amount of this
Debenture subject to a Quarterly Redemption at any time prior to the date
that
the Quarterly Redemption Amount, plus liquidated damages and any other amounts
then owing to the Holder are due and paid in full. The Holder shall have
the
right to designate how any conversions effected during the applicable Quarterly
Conversion Period until the date the Quarterly Redemption Amount is paid
in full
shall be applied (i.e., against the principal amount of this Debenture scheduled
to be redeemed on such Quarterly Redemption Date, against future Quarterly
Redemption Amounts or against the principal amount of this Debenture then
outstanding that is not subject to a Quarterly Redemption); provided, if
no such
written designation is made in the applicable Notice of Conversion, the Company
shall request that the Holder provide such written designation prior to the
applicable Quarterly Redemption Date; provided, further, that in the event
no
such written designation is ever received from the Holder prior to such
applicable Quarterly Redemption Date, any such conversion shall be applied
against the principal amount of this Debenture then outstanding. The Company
covenants and agrees that it will honor all Notices of Conversion tendered
up
until such amounts are paid in full. The Company’s determination to pay a
Quarterly Redemption in cash, shares of Common Stock or a combination thereof
shall be applied ratably to all of the holders of the then outstanding
Debentures based on their (or their predecessor’s) initial purchases of
Debentures pursuant to the Purchase Agreement. At any time the Company delivers
a notice to the Holder of its election to pay the Quarterly Redemption Amount
in
shares of Common Stock, and if a Registration Statement is then effective,
the
Company shall file a prospectus supplement pursuant to Rule 424 disclosing
such
election. If at any time prior to the Senior Creditor Repayment (as defined
in
the Xxxxxx Intercreditor Agreement) the Company is permitted to make cash
payments of a Quarterly Redemption Amount, such permissible cash payments
pursuant to this Section shall be made ratably to all of the holders of the
then
outstanding Debentures and all of the holders of the then outstanding debentures
issued pursuant to the November Purchase Agreement based on their
(or
their predecessor’s) initial purchases of debentures pursuant to the Purchase
Agreement and the November Purchase Agreement, respectively, and notwithstanding
anything herein to the contrary, prior to the Senior Creditor Repayment,
(x)
with respect to the Quarterly Redemption Amount payable in cash as permitted
pursuant to Section 2(c)(iii) of the Xxxxxx Intercreditor Agreement that
is due
on January 1, 2010, such Quartlerly Redemption payment shall be due and paid
on
the same date the Company pays the Xxxxxx Purchasers pursuant to Section
2(c)(v)
of the Xxxxxx Loan Agreement and (y) with respect to any Quarterly Redemption
Amount payable in cash as permitted pursuant to Section 2(c)(iv) of the Xxxxxx
Intercreditor Agreement, such Quartlerly Redemption payment shall be due
and
paid on each January 30, April 30, July 30 and October 30 (instead of January
1,
April 1, July 1 and October 1, respectively). Notwithstanding anything to
the
contrary contained herein, if at any time prior to the Senior Creditor Repayment
(as defined in the Xxxxxx Intercreditor Agreement) the Company is prohibited
from paying, and the Holder is prohibited from receiving, cash payments of
a
Quarterly Redemption Amount pursuant to this Section, the Company shall be
required to elect to make such payment in shares of Common Stock in accordance
with the terms hereof. If the Company does not meet the Equity Conditions
in
connection with such Quarterly Redemption Amount described in the preceding
sentence, at the option of the Holder upon written notice to the Company,
the
Holder shall either waive such Equity Conditions or such amounts otherwise
payable in cash shall continue to remain outstanding. For the avoidance of
doubt, in the event that the Holder does not elect to take Common Stock if
the
Equity Conditions are not met as to a particular Quarterly Redemption Date
as
described in the preceding sentence, then the Quarterly Redemption called
for
with respect to such Quarterly Redemption Date shall be due on maturity of
this
Debenture and failure to pay the same on the applicable Quartlery Redemption
Date shall not constitute an Event of Default hereunder.
18
b) Redemption
Procedure.
The
payment of a Quarterly Redemption shall be payable on the Quarterly Redemption
Date. If any portion of the payment pursuant to a Quarterly Redemption shall
not
be paid by the Company by the applicable due date, interest shall accrue thereon
at an interest rate equal to the lesser of 12% per annum or the maximum rate
permitted by applicable law until such amount is paid in full. Notwithstanding
anything herein contained to the contrary, if any portion of the Quarterly
Redemption Amount remains unpaid after such date, the Holder may elect, by
written notice to the Company given at any time thereafter, to invalidate
such Quarterly Redemption, ab initio,
and,
the Company shall have no further right to exercise such Quarterly Redemption.
The
Holder may elect to convert the outstanding principal amount of the Debenture
pursuant to Section 4 prior to actual payment in cash for any redemption under
this Section 6 by the delivery of a Notice of Conversion to the
Company.
Section
7. Negative
Covenants.
As long
as any portion of this Debenture remains outstanding, unless the holders of
at
least 67% in principal amount of the then outstanding Debentures shall have
otherwise given prior written consent, the Company shall not, and shall not
permit any of its subsidiaries (whether or not a Subsidiary on the Original
Issue Date) to, directly or indirectly:
19
a) other
than Permitted Indebtedness, enter into, create, incur, assume, guarantee or
suffer to exist any indebtedness for borrowed money of any kind, including,
but
not limited to, a guarantee, on or with respect to any of its property or assets
now owned or hereafter acquired or any interest therein or any income or profits
therefrom;
b) other
than Permitted Liens, enter into, create, incur, assume or suffer to exist
any
Liens of any kind, on or with respect to any of its property or assets now
owned
or hereafter acquired or any interest therein or any income or profits
therefrom;
c) amend
its charter documents, including, without limitation, its certificate of
incorporation and bylaws, in any manner that materially and adversely affects
any rights of the Holder;
d) repay,
repurchase or offer to repay, repurchase or otherwise acquire more than a
de minimis
number
of shares of its Common Stock or Common Stock Equivalents other than as to
(i)
the Conversion Shares or Warrant Shares as permitted or required under the
Transaction Documents and (ii) repurchases of Common Stock or Common Stock
Equivalents of departing officers and directors of the Company, provided that
such repurchases shall not exceed an aggregate of $100,000 for all officers
and
directors during the term of this Debenture; and (iii) redemptions as permitted
under the November Debentures or the Debentures;
e) other
than the Senior Debt, repay, repurchase or offer to repay, repurchase or
otherwise acquire any Indebtedness, other than the Debentures or November
Debentures if on a pro-rata basis, other than regularly scheduled principal
and
interest payments as such terms are in effect as of the Original Issue Date,
provided that such payments shall not be permitted if, at such time, or after
giving effect to such payment, any Event of Default (or with respect to the
November Debentures with respect to any event of default thereunder) exist
or
occur;
f) pay
cash dividends or distributions on any equity securities of the
Company;
g) enter
into any transaction with any Affiliate of the Company which would be required
to be disclosed in any public filing with the Commission, unless such
transaction is made on an arm’s-length basis and expressly approved by a
majority of the disinterested directors of the Company (even if less than a
quorum otherwise required for board approval); or
h) enter
into any agreement with respect to any of the foregoing.
Section
8. Events
of Default.
20
a) “Event
of Default”
means,
wherever used herein, any of the following events (whatever the reason for
such
event and whether such event shall be voluntary or involuntary or effected
by
operation of law or pursuant to any judgment, decree or order of any court,
or
any order, rule or regulation of any administrative or governmental
body):
i. any
default in the payment of (A) the principal amount of any Debenture or (B)
default interest, liquidated damages and other amounts owing to a Holder on
any
Debenture, as and when the same shall become due and payable (whether on a
Conversion Date or the Maturity Date or by acceleration or otherwise) which
default, solely in the case of default interest or other default under clause
(B) above, is not cured within 5 Trading Days;
ii. the
Company shall fail to observe or perform any other covenant or agreement
contained in the Debentures (other than a breach by the Company of its
obligations to deliver shares of Common Stock to the Holder upon conversion,
which breach is addressed in clause (x) below) which failure is not cured,
if
possible to cure, within the earlier to occur
of (A)
7 Trading
Days after notice of such failure sent by the Holder or by any other
Holder
to the Company and (B) 10 Trading Days after the Company has become or should
have become aware of such failure;
iii. a
default
or event of default (subject to any grace or cure period provided in the
applicable agreement, document or instrument) shall occur under (A) any of
the
Transaction Documents or (B) any other material agreement, lease, document
or
instrument to which the Company or any Subsidiary is obligated (and not covered
by clause (vi) below);
iv. any
representation
or warranty made in this Debenture, any other Transaction Documents, any written
statement pursuant hereto or thereto or any other report, financial statement
or
certificate made or delivered to the Holder or any other Holder shall
be untrue or incorrect in any material respect as of the date when made or
deemed made;
v. the
Company or any Significant Subsidiary (as such term is defined in Rule 1-02(w)
of Regulation S-X) shall be subject to a Bankruptcy Event;
vi. the
Company or any Subsidiary shall default on any of its obligations under any
mortgage, credit agreement or other facility, indenture agreement, factoring
agreement or other instrument under which there may be issued, or by which
there
may be secured or evidenced, any indebtedness for borrowed money or money due
under any long term leasing or factoring arrangement that (a) involves an
obligation greater than $150,000, whether such indebtedness now exists or shall
hereafter be created, and (b) results in such indebtedness becoming or being
declared due and payable prior to the date on which it would otherwise become
due and payable;
21
vii. the
Common Stock shall not be eligible for listing or quotation for trading on
a
Trading Market and shall not be eligible to resume listing or quotation for
trading thereon within five Trading Days;
viii. the
Company shall be a party to any Change of Control Transaction or Fundamental
Transaction or shall agree to sell or dispose of all or in excess of 40% of
its
assets in one transaction or a series of related transactions (whether or not
such sale would constitute a Change of Control Transaction);
ix. the
Company does not meet the current public information requirements under Rule
144
in respect of the Underlying Shares;
x. the
Company shall fail for any reason to deliver certificates to a Holder prior
to
the seventh Trading Day after a Conversion Date pursuant to Section 4(d) or
the
Company shall provide at any time notice to the Holder, including by way of
public announcement, of the Company’s intention to not honor requests for
conversions of any Debentures in accordance with the terms hereof;
or
xi. any
monetary judgment, writ or similar final process shall be entered or filed
against the Company, any subsidiary or any of their respective property or
other
assets for more than $100,000, and such judgment, writ or similar final process
shall remain unvacated, unbonded or unstayed for a period of 45 calendar
days.
b) Remedies
Upon Event of Default.
Subject
to the Xxxxxx Intercreditor Agreement, if any Event of Default occurs, the
outstanding principal amount of this Debenture, plus liquidated damages and
other amounts owing in respect thereof through the date of acceleration, shall
become, at the Holder’s election, immediately due and payable in cash at the
Mandatory Default Amount. Commencing 5 days after the occurrence of any Event
of
Default that results in the eventual acceleration of this Debenture, interest
on
this Debenture shall accrue at an interest rate equal to the lesser of 12%
per
annum or the maximum rate permitted under applicable law. Accrued and unpaid
default interest shall be paid by the Company in cash in arrears on the first
day of each calendar month. Upon the payment in full of the Mandatory Default
Amount, the Holder shall promptly surrender this Debenture to or as directed
by
the Company. In connection with such acceleration described herein, the Holder
need not provide, and the Company hereby waives, any presentment, demand,
protest or other notice of any kind, and the Holder may immediately and without
expiration of any grace period enforce any and all of its rights and remedies
hereunder and all other remedies available to it under applicable law. Such
acceleration may be rescinded and annulled by Holder at any time prior to
payment hereunder and the Holder shall have all rights as a holder of the
Debenture until such time, if any, as the Holder receives full payment pursuant
to this Section 8(b). No such rescission or annulment shall affect any
subsequent Event of Default or impair any right consequent thereon.
22
Section
9. Miscellaneous.
a) Notices.
Any and
all notices or other communications or deliveries to be provided by the Holder
hereunder, including, without limitation, any Notice of Conversion, shall be
in
writing and delivered personally, by facsimile, or sent by a nationally
recognized overnight courier service, addressed to the Company, at the address
set forth above, or such other facsimile number or address as the Company may
specify for such purpose by notice to the Holder delivered in accordance with
this Section 9(a). Any and all notices or other communications or deliveries
to
be provided by the Company hereunder shall be in writing and delivered
personally, by facsimile, or sent by a nationally recognized overnight courier
service addressed to each Holder at the facsimile number or address of the
Holder appearing on the books of the Company, or if no such facsimile number
or
address appears, at the principal place of business of the Holder. Any notice
or
other communication or deliveries hereunder shall be deemed given and effective
on the earliest of (i) the date of transmission, if such notice or communication
is delivered via facsimile at the facsimile number specified on the signature
page prior to 5:30 p.m. (New York City time), (ii) the date immediately
following the date of transmission, if such notice or communication is delivered
via facsimile at the facsimile number specified on the signature page between
5:30 p.m. (New York City time) and 11:59 p.m. (New York City time) on any date,
(iii) the second Business Day following the date of mailing, if sent by
nationally recognized overnight courier service or (iv) upon actual receipt
by
the party to whom such notice is required to be given.
b) Absolute
Obligation.
Except
as expressly provided herein, no provision of this Debenture shall alter or
impair the obligation of the Company, which is absolute and unconditional,
to
pay the principal of, liquidated damages and default interest, as applicable,
on
this Debenture at the time, place, and rate, and in the coin or currency, herein
prescribed. This Debenture is a direct debt obligation of the Company. This
Debenture ranks pari passu
with all
other Debentures now or hereafter issued under the terms set forth
herein.
c) Lost
or Mutilated Debenture.
If this
Debenture shall be mutilated, lost, stolen or destroyed, the Company shall
execute and deliver, in exchange and substitution for and upon cancellation
of a
mutilated Debenture, or in lieu of or in substitution for a lost, stolen or
destroyed Debenture, a new Debenture for the principal amount of this Debenture
so mutilated, lost, stolen or destroyed, but only upon receipt of evidence
of
such loss, theft or destruction of such Debenture, and of the ownership hereof,
reasonably satisfactory to the Company.
23
d) Governing
Law.
All
questions concerning the construction, validity, enforcement and interpretation
of this Debenture shall be governed by and construed and enforced in accordance
with the internal laws of the State of New York, without regard to the
principles of conflict of laws thereof. Each party agrees that all legal
proceedings concerning the interpretation, enforcement and defense of the
transactions contemplated by any of the Transaction Documents (whether brought
against a party hereto or its respective Affiliates, directors, officers,
shareholders, employees or agents) shall be commenced in the state and federal
courts sitting in the City of New York, Borough of Manhattan (the “New
York Courts”).
Each
party hereto hereby irrevocably submits to the exclusive jurisdiction of the
New
York Courts for the adjudication of any dispute hereunder or in connection
herewith or with any transaction contemplated hereby or discussed herein
(including with respect to the enforcement of any of the Transaction Documents),
and hereby irrevocably waives, and agrees not to assert in any suit, action
or
proceeding, any claim that it is not personally subject to the jurisdiction
of
such New York Courts, or such New York Courts are improper or inconvenient
venue
for such proceeding. Each party hereby irrevocably waives personal service
of
process and consents to process being served in any such suit, action or
proceeding by mailing a copy thereof via registered or certified mail or
overnight delivery (with evidence of delivery) to such party at the address
in
effect for notices to it under this Debenture and agrees that such service
shall
constitute good and sufficient service of process and notice thereof. Nothing
contained herein shall be deemed to limit in any way any right to serve process
in any other manner permitted by applicable law. Each party hereto hereby
irrevocably waives, to the fullest extent permitted by applicable law, any
and
all right to trial by jury in any legal proceeding arising out of or relating
to
this Debenture or the transactions contemplated hereby. If either party shall
commence an action or proceeding to enforce any provisions of this Debenture,
then the prevailing party in such action or proceeding shall be reimbursed
by
the other party for its attorneys’ fees and other costs and expenses incurred in
the investigation, preparation and prosecution of such action or
proceeding.
e) Waiver.
Any
waiver by the Company or the Holder of a breach of any provision of this
Debenture shall not operate as or be construed to be a waiver of any other
breach of such provision or of any breach of any other provision of this
Debenture. The failure of the Company or the Holder to insist upon strict
adherence to any term of this Debenture on one or more occasions shall not
be
considered a waiver or deprive that party of the right thereafter to insist
upon
strict adherence to that term or any other term of this Debenture. Any waiver
by
the Company or the Holder must be in writing.
f) Severability.
If any
provision of this Debenture is invalid, illegal or unenforceable, the balance
of
this Debenture shall remain in effect, and if any provision is inapplicable
to
any Person or circumstance, it shall nevertheless remain applicable to all
other
Persons and circumstances. If it shall be found that any default interest or
other amount deemed interest due hereunder violates the applicable law governing
usury, the applicable rate of interest due hereunder shall automatically be
lowered to equal the maximum rate of interest permitted under applicable law.
The Company covenants (to the extent that it may lawfully do so) that it shall
not at any time insist upon, plead, or in any manner whatsoever claim or take
the benefit or advantage of, any stay, extension or usury law or other law
which
would prohibit or forgive the Company from paying all or any portion of the
principal of or default interest on this Debenture as contemplated herein,
wherever enacted, now or at any time hereafter in force, or which may affect
the
covenants or the performance of this indenture, and the Company (to the extent
it may lawfully do so) hereby expressly waives all benefits or advantage of
any
such law, and covenants that it will not, by resort to any such law, hinder,
delay or impede the execution of any power herein granted to the Holder, but
will suffer and permit the execution of every such as though no such law has
been enacted.
24
g) Next
Business Day.
Whenever any payment or other obligation hereunder shall be due on a day other
than a Business Day, such payment shall be made on the next succeeding Business
Day.
h) Headings.
The
headings contained herein are for convenience only, do not constitute a part
of
this Debenture and shall not be deemed to limit or affect any of the provisions
hereof.
i) Assumption.
Any successor to the Company or any surviving entity in a Fundamental
Transaction shall (i) assume, prior to such Fundamental Transaction, all of
the
obligations of the Company under this Debenture and the other Transaction
Documents pursuant to written agreements in form and substance satisfactory
to
the Holder (such approval not to be unreasonably withheld or delayed) and (ii)
issue to the Holder a new debenture of such successor entity evidenced by a
written instrument substantially similar in form and substance to this
Debenture, including, without limitation, having a principal amount and interest
rate equal to the principal amount and the interest rate of this Debenture
and
having similar ranking to this Debenture, which shall be satisfactory to the
Holder (any such approval not to be unreasonably withheld or delayed). The
provisions of this Section 9(i) shall apply similarly and equally to successive
Fundamental Transactions and shall be applied without regard to any limitations
of this Debenture.
j) Secured
Obligation.
The
obligations of the Company under this Debenture are secured by all assets of
the
Company and each Subsidiary pursuant to the Security Agreement, dated as of
March 11, 2008 between the Company, the Subsidiaries of the Company and the
Secured Parties (as defined therein).
k) Amendments.
This
Debenture may be modified or amended or the provisions hereof waived with the
prior written consent of the Company and Holders holding Debentures at least
equal to 67% of the aggregate principal amount then outstanding under all
Debentures.
*********************
25
[SIGNATURE
PAGES FOLLOW]
26
IN
WITNESS WHEREOF, the Company has caused this Debenture to be duly executed
by a
duly authorized officer as of the date first above indicated.
CAPITAL
GROWTH SYSTEMS, INC.
By:__________________________________________
Name:
Title:
Name:
Title:
Facsimile
No. for delivery of Notices: _______________
27
ANNEX
A
NOTICE
OF CONVERSION
The
undersigned hereby elects to convert principal under the Original Issue Discount
Secured Convertible Debenture due March 11, 2015 of Capital Growth Systems,
Inc., a Florida corporation (the “Company”),
into
shares of common stock (the “Common
Stock”),
of
the Company according to the conditions hereof, as of the date written below.
If
shares of Common Stock are to be issued in the name of a person other than
the
undersigned, the undersigned will pay all transfer taxes payable with respect
thereto and is delivering herewith such certificates and opinions as reasonably
requested by the Company in accordance therewith. No fee will be charged to
the
holder for any conversion, except for such transfer taxes, if any.
By
the
delivery of this Notice of Conversion the undersigned represents and warrants
to
the Company that its ownership of the Common Stock does not exceed the amounts
specified under Section 4 of this Debenture, as determined in accordance with
Section 13(d) of the Exchange Act.
The
undersigned agrees to comply with the prospectus delivery requirements under
the
applicable securities laws in connection with any transfer of the aforesaid
shares of Common Stock.
Conversion
calculations:
Date
to
Effect Conversion:
Principal
Amount of Debenture to be Converted:
Number
of
shares of Common Stock to be issued:
Manner
in
which Conversion is to be Applied to Subsequent Quarterly Redemption Amounts
and/or
Principal
Amount of Debenture:
Signature:
Name:
Address
for Delivery of Common Stock Certificates:
Or
DWAC
Instructions:
Broker
No:_____________
Account
No:___________
28
Schedule
1
CONVERSION
SCHEDULE
The
Original Issue Discount Secured Convertible Debenture due on March 11, 2015
in
the original principal amount of $____________ is issued by Capital Growth
Systems, Inc., a Florida corporation. This Conversion Schedule reflects
conversions made under Section 4 of the above referenced Debenture.
Dated:
Date
of Conversion
(or
for first entry, Original Issue Date)
|
Amount
of Conversion
|
Aggregate
Principal Amount Remaining Subsequent to Conversion
(or
original Principal Amount)
|
Company
Attest
|
|
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|
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|
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|
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|
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