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EXHIBIT 10.14
THIS DEBENTURE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED, AND IS TRANSFERABLE ONLY UPON THE CONDITIONS SPECIFIED IN THE DEBENTURE
AGREEMENT REFERRED TO HEREIN.
EARTHCARE COMPANY
10% Convertible Subordinated Debenture Due 2006
No. <> <>
EARTHCARE COMPANY, a corporation duly organized and existing under the
laws of the State of Delaware (herein called the "Company") for value received,
hereby promises to pay to <> or registered assigns, the
principal sum of <> Dollars on October 31, 2006, and to pay
interest thereon quarterly on December 31, March 31, June 30, and September 30
(each an "Interest Payment Date"), in each year commencing on December 31, 1999,
at 10% per annum, from the date of issuance of this Debenture, or from the most
recent Interest Payment Date for which interest has been paid or duly provided
for on the Debentures, and upon prepayment or conversion hereof, as provided in
the Debenture Agreement, until the principal hereof is paid or made available
for payment. To the extent permitted by law, interest on any overdue payment of
principal or interest shall be payable quarterly at a rate equal to 18% per
annum. Interest will be computed on the basis of a 365-day year. The Company may
pay interest by issuing additional Debentures to the holder in aggregate
principal amount equal to interest due and payable on an Interest Payment Date
as provided in the Debenture Agreement.
The interest so payable, and punctually paid or duly provided for, on
any Interest Payment Date will be paid to the person in whose name this
Debenture is registered. Payment of the principal of and interest on this
Debenture will be made at the offices or agencies of the Company maintained for
that purpose in Dallas, Texas and at any other office or agency maintained by
the Company for such purpose, in such coin or currency of the United States of
America as at the time of payment is legal tender for payment of public and
private debts; provided, however, that at the option of the Company payment of
interest may be made by check mailed to the address of the person entitled
thereto as such address shall appear in the Debenture register.
This Debenture is one of a duly authorized issue of Debentures of the
Company (which term includes any successor corporation under the Debenture
Agreement hereinafter referred to) designated as its 10% Convertible
Subordinated Debentures due 2006 (the "Debentures"), limited in aggregate
principal amount of up to $15,000,000, issued pursuant to a Debenture Agreement
dated
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as of October 19, 1999 (the "Debenture Agreement"), between the Company and the
purchasers of the Debentures. The terms of this Debenture include those stated
in the Debenture Agreement. Reference is hereby made to the Debenture Agreement
and all supplements thereto for a statement of the respective rights,
limitations of rights, duties and immunities thereunder of the Company, and the
holders of the Debentures and of the terms upon which the Debentures are, and
are to be, and delivered.
In the event of conversion of this Debenture in part only, a new
Debenture or Debentures for the unpaid or unconverted principal portion hereof
will be issued in the name of the holder hereof upon the cancellation hereof.
If an Event of Default shall occur and be continuing, the principal of
all the Debentures may be declared due and payable in the manner and with the
effect provided in the Debenture Agreement.
The indebtedness evidenced by the Debentures is, to the extent provided
in the Debenture Agreement, subordinate and junior in right of payment to the
prior payment in full of all Senior Obligations, as defined in the Debenture
Agreement. Each holder of this Debenture, by accepting the same, agrees to and
shall be bound by such provisions of the Debenture Agreement.
Subject to and upon compliance with the provisions of the Debenture
Agreement, the holder of this Debenture is entitled, at such holder's option, at
any time on or before the close of business on October 31, 2006, or, if earlier,
the close of business on the Business Day immediately preceding any Redemption
Date, or the date this Debenture is paid if later, to convert this Debenture (or
any portion of the principal amount hereof which is $1,000 or an integral
multiple thereof), at the principal amount hereof, or of such portion, into
newly issued, fully paid and nonassessable shares of Common Stock of the Company
at a Conversion Price equal to $11.50 aggregate principal amount of Debentures
for each share of Common Stock (or at the current adjusted Conversion Price if
an adjustment has been made as provided in the Debenture Agreement) by surrender
of this Debenture, duly endorsed or assigned to the Company or in blank and also
accompanied by the conversion notice hereon duly executed, to the Company at
such office or agency of the Company as may be designated by it for such purpose
in Dallas, Texas. Upon receipt of a duly endorsed Debenture and conversion
notice, the Company will cancel such Debenture, issue the requisite number of
shares of Common Stock into which such Debenture or portion thereof is
convertible in the name of the holder, or his designated assigns, and deliver
such shares to such holder or assigns along with interest accrued on the portion
of such Debenture so converted from the last Interest Payment Date to the
effective date of conversion, as provided in the Debenture Agreement. Subject to
the aforesaid requirement for payment, no payment or adjustment is to be made on
conversion for interest accrued hereon after the date of conversion or for
dividends on the Common Stock issued on conversion. No fractions of shares or
scrip representing fractions of shares will be issued on conversion, but
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instead of any fractional interest (calculated to the nearest 1/100th of a
share) the Company shall pay a cash adjustment as provided in the Debenture
Agreement. The Conversion Price is subject to adjustment as provided in the
Debenture Agreement. In addition, the Debenture Agreement provides that in case
of certain consolidations or mergers to which the Company is a party or the
transfer of all or substantially all of the assets of the Company, the Debenture
Agreement shall be amended, without the consent of any holders of Debentures, so
that this Debenture, if then outstanding, will be convertible thereafter, during
the period this Debenture shall be convertible as specified above, only into the
kind and amount of securities, cash, and other property receivable upon such
consolidation, merger, or transfer by a holder of the number of shares of Common
Stock of the Company into which this Debenture might have been converted
immediately prior to such consolidation, merger, or transfer (assuming such
holder of Common Stock failed to exercise any rights of election and received
per share the kind and amount received per share by a plurality of non-electing
shares). Adjustments in the Conversion Price of less than one percent of such
price will not be required, but any adjustment that would otherwise be required
to be made will be carried forward and taken into account in the computation of
any subsequent adjustment.
The Debenture Agreement permits, with certain exceptions as therein
provided, the amendment thereof and the modification of the rights and
obligations of the Company and the rights of the holders under the Debenture
Agreement at any time by the Company with the consent of the holders of 66-2/3%
in aggregate principal amount of the Debentures at the time outstanding. The
Debenture Agreement also contains provisions permitting the holders of 66-2/3%
in aggregate principal amount of the Debentures at the time outstanding, on
behalf of the holders of all the Debentures, to waive compliance by the Company
with certain provisions of the Debenture Agreement and certain past defaults
under the Debenture Agreement and their consequences. Any such consent or waiver
by the holder of this Debenture shall be conclusive and binding upon such holder
and upon all future holders of this Debenture and of any Debenture issued upon
the registration of transfer hereof or in exchange herefor or in lieu hereof,
whether or not notation of such consent or waiver is made upon this Debenture.
No reference herein to the Debenture Agreement and no provision of this
Debenture or of the Debenture Agreement shall alter or impair the obligation of
the Company, which is absolute and unconditional, to pay the principal of and
interest on this Debenture at the times, places and rate, and in the coin or
currency, herein prescribed or to convert this Debenture as provided in the
Debenture Agreement.
As provided in the Debenture Agreement and subject to certain
limitations therein set forth, the transfer of this Debenture is registrable in
the Debenture register, upon surrender of this Debenture for registration of
transfer at the offices or agencies of the Company in Dallas, Texas duly
endorsed by, or accompanied by a written instrument of transfer in substantially
the form
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accompanying this Debenture duly executed by, the holder hereof or his attorney
duly authorized in writing, and thereupon one or more new Debentures, of
authorized denominations and for the same aggregate principal amount, will be
issued to the designated transferee or transferees.
As provided in the Debenture Agreement and subject to certain
limitations therein set forth, the Debentures are exchangeable for a like
aggregate principal amount of Debentures of a different authorized denomination,
as requested by the holder surrendering the same.
Prior to due presentment of this Debenture for registration of
transfer, the Company, and any agent of the Company may treat the person in
whose name this Debenture is registered as the owner hereof for all purposes,
whether or not this Debenture be overdue, and neither the Company, nor any such
agent shall be affected by notice to the contrary.
All terms used in this Debenture which are defined in the Debenture
Agreement shall have the meanings assigned to them in the Debenture Agreement.
The Company will furnish to any Debentureholder of record upon written request
without charge a copy of the Debenture Agreement. Requests may be made to:
EarthCare Company, 00000 Xxxxxx Xxxxx, Xxxxx 000, Xxxxxx, Xxxxx 00000.
IN WITNESS WHEREOF, EarthCare Company has caused this instrument to be
executed in its corporate name.
Dated: November 5, 1999
EARTHCARE COMPANY
By:
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Name:
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Title:
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ASSIGNMENT FORM
If you the holder want to assign this 10% Subordinated Convertible
Debenture, fill in the form below and have your signature guaranteed:
I or we assign and transfer this 10% Subordinated Convertible Debenture
to:
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(Print or type name, address and zip code and
social security or tax ID number of assignee)
and irrevocably appoint __________________________, agent to transfer this 10%
Convertible Subordinated Debenture on the books of the Company. The agent may
substitute another to act for him.
Dated:______________________ Signed:________________________
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'
Form of Conversion Notice.
CONVERSION NOTICE
The undersigned holder of this Debenture hereby irrevocably exercises
the option to convert this Debenture, or any portion hereof (which is $1,000 or
an integral multiple thereof) below designated, into shares of Common Stock in
accordance with the terms of the Debenture Agreement referred to in this
Debenture, and directs that such shares, together with a check in payment for
any fractional share and any Debentures representing any unconverted principal
amount hereof, be delivered to and be registered in the name of the undersigned
unless a different name has been indicated below. If shares of Common Stock or
Debentures are to be registered in the name of a Person other than the
undersigned, the undersigned will pay all transfer taxes payable with respect
thereto.
Dated:
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Signature
If shares or Registered Debentures If only a portion of the Debentures
are to be registered in the name of a is to be converted, please indicate:
Person other than the holder, please
print such Person's name and
address:
------------------------- 1. Principal Amount to be converted:
Name U.S. $__________
------------------------- 2. Amount and denomination of
Address Registered Debentures representing
unconverted principal amount to be
issued:
Amount: $__________
------------------------- Denominations:
Social Security or other
Taxpayer Identification $__________
Number, if any ($1,000 or an integral multiple
thereof)
[Signature Guaranteed]
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