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EXHIBIT 4.2
10% CONVERTIBLE SUBORDINATED NOTE
October 28, 1996
ON OR BEFORE the earlier of (i) February 1, 1997 or (ii) the closing of
any public or private debt or equity financing of Maker or its direct or
indirect parent corporation exceeding $10.5 million, for value received, the
undersigned, WEST OXFORD INDUSTRIES, INC., a Texas corporation ("Maker"),
promises to pay to ___________________________, at the corporate offices of
Maker in Houston, Texas, or, at Maker's option, by Maker's check mailed to the
payee herein name at his or its address furnished in writing to Maker the
principal sum of _____________________ THOUSAND ($___,000) DOLLARS, together
with interest on the principal balance hereof from time to time remaining unpaid
from October 15, 1996 until maturity at the rate of 10% per annum, such interest
to be paid by Maker to the payee herein named at maturity contemporaneously with
the then unpaid balance of the principal sum hereof.
This Note is one of a duly authorized issue of Notes of Maker
designated as its 10% Convertible Subordinated Notes issued under that certain
Confidential Private Placement Memorandum of Maker dated July 15, 1996 relating
to a private placement of a maximum of $1,000,000 in aggregate principal sum of
Convertible Subordinated Notes of Maker (the "Convertible Notes"), all of like
tenor and effect, issued in varying denominations of multiples of $25,000 and
maturing as above set forth. Each and all of the Convertible Notes are in parity
and pari passu and no one of the Convertible Notes is senior or junior in right
of payment to the other, but each and all are of equal rank and dignity.
The privilege is reserved to pay or prepay, from time to time and at
any time, all or any part of the principal amount of this Note, without premium
or penalty, provided that a like and
proportionate pay ment or prepayment of principal is made contemporaneously on
all other then outstanding Convertible Notes.
To exercise this prepayment option, Maker shall give written notice at
least 7 days prior to the prepayment date specified in the notice to all holders
of its Convertible Notes then outstanding at the last address of each holder
known to Maker. Upon any partial prepayment of this Note, the holder hereof
shall surrender the same to Maker at its principal office in Houston, Texas for
endorsement hereon of such prepayment, or, at the option of Maker, in exchange,
without charge to the holder for making such exchange, for a new Convertible
Note of Maker in the principal amount of the principal sum hereof remaining
after credit for such prepayment(s), and otherwise having and containing the
same terms and provisions as the Note surrendered.
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At the option of the holder of this Note, at any time after the date
hereof and prior to the first to occur of (i) the filing of a Registration
Statement with respect to any debt or equity financing of Maker or its direct or
indirect parent corporation exceeding $10.5 million, regarding which filing
Maker shall give the holder hereof written notice at his or its address as
reflected in the books and records of Maker not less than 4 days prior to the
filing date, (ii) the prepayment by Maker of all or any part of the unpaid
principal amount of this Note in accordance with the foregoing terms hereof, or
(iii) the maturity of this Note, but not thereafter, the entire principal amount
of this Note, but not any part thereof, may be converted, with respect to the
event of the filing of a Registration Statement(s), at any time after the date
of the notice of filing until the close of business on the date immediately
preceding the date of filing; with respect to the event of a prepayment of this
Note, at any time after the date of the notice of prepayment until the close of
business on the 3rd day prior to the prepayment date specified in the prepayment
notice given by Maker to all holders of its Convertible Notes; and with respect
to the maturity of this Note, at any time prior to the date immediately
preceding the maturity date hereof, at the then unpaid principal amount of this
Note into shares of Common Stock, $0.20 par value per share, of Maker's parent
corporation, Striker Industries, Inc. ("Striker") having ordinary voting rights
at the conversion price per share which shall be the mean of the high and low
trade prices of a share of Common Stock of Striker as quoted in the NASDAQ
SmallCap market on the 5th trading day prior to the date of the conversion
notice delivered within the applicable conversion period provided herein by the
holder to Maker in accordance with the terms hereof. In order to exercise the
conversion privilege, the holder of this Note shall give written notice in the
form attached to Striker at its corporate offices at ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇ to the effect that the holder elects to convert this Note,
enclosing this Note with such notice and stating therein the name and address in
and to which certificates for shares of Common Stock of Striker shall be
issuable and delivered upon such conversion. As promptly as practicable after
receipt of such notice and surrender of this Note as aforesaid, Striker shall
issue and deliver to the holder, or on his or its written order, a certificate
or certificates for the full number of shares of Common Stock of Striker
issuable upon conversion of this Note in accordance with the provisions hereof,
and such conversion shall be deemed to have been effected on the date on which
such notice of conversion shall be received by Striker and this Note shall have
been surrendered as aforesaid, and the person in whose name any certificate for
shares of Common Stock of Striker shall be issuable upon such conversion shall
be deemed to have become on said date the holder of record of the shares
represented thereby. When this Note is surrendered to Striker for conversion as
aforesaid, it shall promptly be canceled by Maker. No adjustment in respect of
interest or dividends will be made upon any conversion. Striker shall not be
required to issue any fractional shares of its Common Stock upon conversion of
this Note, and all fractional shares shall be rounded up to the nearest whole
share.
In the event of any stock split, stock dividend, combination of shares
or other capital reorganization or reclassification of capital stock of Striker,
or any additional issuance(s) of shares of Striker Common Stock subsequent to
the initial date of issuance of the Convertible Notes, the Board of Directors of
Maker shall determine whether or not, and to the extent that, any adjustment
should be made to the conversion price stated therein and herein, and by
acceptance of this Note, the holder hereby agrees that a determination of
Maker's Board of Directors with respect to any such adjustment, if any, shall be
conclusive and binding; provided, however, that a
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stock dividend in an amount equal to 5% or less shall not be deemed to require
any adjustment in the conversion price under any circumstance. Further, prior to
the conversion of this Note under the terms hereof, no adjustment of the
conversion price shall be made with respect to shares of Common Stock of Striker
issuable under (i) options, warrants or other rights to purchase or acquire
Common Stock, including shares under incentive, restricted or qualified stock
options of Striker; (ii) securities of Striker, including shares of its
Preferred Stock, and/or other debt securities of Striker, whether senior or
subordinated debt securities and whether secured or unsecured, which by their
terms are convertible into or exchangeable for Common Stock of Striker; or (iii)
options, warrants or rights to purchase any such convertible or exchangeable
securities of Striker. In the event of any adjustment to the conversion price
provided herein, Maker shall cause a notice of such adjustment to be mailed to
each holder of shares of its Subordinated Notes within 10 days after any such
determination.
Striker shall at all times reserve and keep available out of its
authorized but unissued Common Stock, for the purpose of issuance upon
conversion of Convertible Notes of Maker, such number of shares of its Common
Stock as shall from time to time be sufficient to effect the conversion of all
of Maker's outstanding Convertible Notes and the issuance of shares of its
Common Stock in exchange therefor upon conversion thereof. All shares of Common
Stock of Striker which shall be issued upon conversion of Convertible Notes of
Maker shall, when so issued upon any such conversion, be duly and validly
issued, fully paid and nonassessable shares of Striker's Common Stock. The
issuance of certificates representing shares of Common Stock of Striker upon
conversion of this Note shall be made without charge to the holder hereof.
The indebtedness evidenced by this Note, and any renewal and extension thereof,
is and shall be subordinate and junior in right of payment to Senior
Indebtedness of Striker and its consolidated subsidiaries, including Maker. As
used herein, the term "Senior Indebtedness" means all indebtedness (both
principal and interest), obligations and liabilities of Striker and its
consolidated subsidiaries heretofore, contemporaneously or hereafter incurred
(including, without limitation, any renewals, extensions, amendments or
modifications -thereof, without notice to or the consent of the holders of any
of the Convertible Notes), other than indebtedness evidenced by the Convertible
Notes (each and all of which, as above provided, are in parity and pari passu,
with no one thereof being senior or junior in right of payment to the other and
all of which are of equal rank and dignity), including this Note, unless by the
terms of the instrument or instruments creating or evidencing such indebtedness
it is provided that such indebtedness is not senior to the Convertible Notes.
Without limiting the effect of the foregoing, the term "subordinate and junior"
as used herein shall include within its meanings the following: that (i) in the
event of any insolvency or bankruptcy proceedings, or any receivership,
liquidation, reorganization or other similar proceedings in connection therewith
relative to Striker and its consolidated subsidiaries and its or their creditors
or property, or in the event of any proceedings for voluntary liquidation,
dissolution or other winding-up of Striker and its consolidated subsidiaries,
whether or not involving insolvency or bankruptcy, or in the event of any
assignment for the benefit of creditors or any other marshaling of assets of
Striker and its consolidated subsidiaries, then all Senior Indebtedness shall
first be paid in full, or such payment be provided for, before any payment shall
be made on account of any of the Convertible Notes (but in any of such events,
after the payment of all Senior Indebtedness, payment on account of
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the Convertible Notes shall be made before any payment is made or any assets of
Striker or its consolidated subsidiaries are set apart for payment or
distribution to the holders of capital stock of Striker), and (ii) in the event
that the Convertible Notes are declared due and payable in the manner
hereinafter provided because of the occurrence of an Event of Default, holders
of the Convertible Notes shall be entitled to payment only after there shall
first have been paid in full Senior Indebtedness, or such payment shall have
been provided for.
In the event one or more of the following Events of Default shall have occurred
and be continuing (and the term "Event(s) of Default as used herein shall mean
any one or more of the following events or conditions):
(a) Default in the payment by Maker when due of the interest on, or the
principal sum of, any of the Convertible Notes when the same shall be
due and payable under the terms and provisions thereof, and continuance
of such failure for a period of 10 business days;
(b) The filing by Maker, Striker or any wholly-owned subsidiary of Striker
(Maker, Striker and/or any of wholly-owned subsidiary of Striker being
hereinafter in this subparagraph (b)
referred to singly or in the aggregate, as the case may be, as "Striker")
of a petition in voluntary bankruptcy, or the making by Striker of a
general assignment for the benefit of creditors, or the filing by it of
any petition or answer seeking or consenting to a reorganization,
arrangement, adjustment, composition, liquidation, dissolution,
winding-up or any other such relief for itself or its creditors, or the
filing of an answer by Striker admitting the material allegations of the
petition filed against it in any such proceeding, or the consenting by
Striker to, or the acquiescence of Striker in, the appointment of any
receiver, trustee, liquidator (or other person or entity exercising
similar functions) of Striker or of all or any substantial part of the
property of Striker;
then and in each and every such case, unless the principal of all of the
Convertible Notes shall have already become due and payable, holders of
Convertible Notes entitled to payment of at least 75 % in aggregate unpaid
principal amount of the Convertible Notes then outstanding, but not otherwise,
shall, upon 10 days' written notice to Maker of default (such notice to identify
the Event of Default) declare the unpaid principal of, and all accrued and
unpaid interest on, the Convertible Notes then outstanding, including this Note,
to be due and payable and upon any such declaration, the same shall be and
become immediately due and payable. This provision, however, is subject to the
condition that if, at any time before the principal of the Convertible Notes
shall have been so declared due and payable, all Events of Default shall have
been cured, then such Events of Default shall be deemed to have been waived by
the holders of the Convertible Notes. This provision is subject to the further
condition that if, at any time after the unpaid principal of and accrued and
unpaid interest on the Convertible Notes shall have been so declared due and
payable, and before any judgment or decree for the payment of monies due shall
have been obtained or entered, Maker shall pay or shall deposit with a paying
agent a sufficient sum to pay all accrued and unpaid interest upon all of the
Convertible Notes and every other Event of Default hereunder shall have been
made good, then and in every such case, the holders of not less than 75% in
aggregate unpaid principal amount of the Convertible Notes then outstanding, by
written notice to Maker, may waive all defaults and rescind and annul such
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declaration and its consequences; but no such waiver or rescission or annulment
shall extend to or shall affect any subsequent Event of Default or impair any
right hereunder consequent thereon. The holder of this Note shall have no right
to institute any suit, action or proceeding in equity or in law for the
execution of any power conferred hereunder or for the appointment of a receiver
or for the enforcement of any other remedy under or upon this Note unless such
holder, with the joinder of other holders of Convertible Notes of Maker entitled
to payment of at least 75% in aggregate unpaid principal amount of the
Convertible Notes then outstanding, including this Note, shall previously have
given Maker written notice of an existing Event of Default and of the
continuance thereof as hereinabove provided. Such notification is hereby
declared in every such case to be a condition precedent to any action or cause
of action hereunder or upon the Convertible Notes or for the appointment of a
receiver or for any other remedy hereunder. No delay or omission of the holder
of Convertible Notes, including this Note, to exercise any right or power of
such holder(s) accruing upon or after occurrence of an Event of Default and
continuance thereof as aforesaid shall impair any such right or power or shall
be construed to be a waiver of any such Event of Default or an acquiescence
therein; and every power and remedy given hereunder to holders of the
Convertible Notes may be exercised from time to time and as often as may be
deemed expedient by the holders of the Convertible Notes. No remedy herein
conferred upon the holders of Convertible Notes, including this Note, is
intended to be exclusive of any other remedy or remedies, but each and every
such remedy shall be cumulative and shall be in addition to every other remedy
given hereunder or now or hereafter existing at law or in equity or by statute,
subject only to the foregoing provisions hereof. Whenever in the Convertible
Notes it is provided that holders of a specified percentage in aggregate unpaid
principal amount of the Convertible Notes then outstanding may take any action
(including the making of any demand or request, the giving of any notice,
consent or waiver or the taking of any other action), the fact that at the time
of taking of any such action the holders of Convertible Notes of such specified
percentage have joined therein may be conclusively evidenced and established by
any instrument or any number of instruments of similar tenor executed by holders
of Convertible Notes in person or by agent or proxy duly and lawfully appointed
in writing. The fact and date of the execution by any holder of a Convertible
Note of any instrument may be proved by the certificate of any Notary Public or
other officer of any jurisdiction within the United States authorized to take
acknowledgment of deeds to be recorded in such jurisdiction, or any United
States consular official, stating therein that the person executing such
instrument acknowledged to him the execution thereof, or by an affidavit of the
witness to such execution sworn to before any such Notary Public or United
States consular official.
Any notice, request, instruction, consent, demand or other communication at any
time required or permitted to be given or furnished hereunder shall be deemed
sufficiently given or furnished if in writing and delivered personally to the
party to be notified or deposited in the United States mail in first class
registered or certified mail form, with return receipt requested, postage
prepaid, or by facsimile transmission, if to Striker, addressed to it at its
address above set forth or by facsimile transmission to (▇▇▇) ▇▇▇-▇▇▇▇, and if
to the holder of this Note, at or to his or its address or facsimile number, if
available, as reflected in the books and records of Maker. Notice by personal
delivery shall be effective upon receipt; notice deposited in the United States
mail in the manner aforesaid shall be effective on the date of receipt or the
third day after the same is deposited in the United States mail in such form,
whichever is earlier, and notice sent by
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facsimile transmission shall be effective upon confirmation to the notifying
party of receipt of the transmission.
The maker hereof and all endorsers, sureties and guarantors hereof, as
well as all other persons liable or to become liable on this Note, hereby waive
grace, notice, including, but not limited to, notice of acceleration of notice
of intent to accelerate, demand for presentment for payment, notice of
nonpayment, protest, notice of protest and/or dishonor, filing of suit and
diligence in collection, as well as any notice of or defense on account of the
extension of time for payment or change in the method of payment hereof, and
consent to any and all renewals and extensions in the time of payment hereof.
Notwithstanding any foregoing provision of this Note to the contrary,
the indebtedness evdenced by this Note may be satisfied and paid in full, and
shall be canceled, in exchange for and upon issuance to the payee herein named
of a number of shares of Common Stock of Maker's direct or indirect parent
corporation under the circumstances described, and calculated in the manner set
forth, in sections 2 and 3 of that certain letter agreement of even date
herewith between the payee herein named and Maker's parent corporation, Striker
Industries, Inc., a copy of which is attached hereto, marked Exhibit A for
identification and hereby made a part hereof for all pertinent purposes.
THIS NOTE HAS BEEN ACQUIRED BY THE PAYEE HEREIN NAMED FOR HIS OR ITS
OWN ACCOUNT AS PRINCIPLE AND WITHOUT INTENT TO DISTRIBUTE OR RESELL THE SAME, IN
WHOLE OR IN PART. THIS NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED, OR UNDER ANY STATE SECURITIES' LAWS (COLLECTIVELY HEREIN THE
"ACTS"); ACCORDINGLY, IT MAY NOT BE SOLD, OFFERED FOR SALE, PLEDGED,
HYPOTHECATED OR OTHERWISE TRANSFERRED OR ASSIGNED IN THE ABSENCE OF AN EFFECTIVE
REGISTRATION STATEMENT AS TO THE NOTE UNDER ANY OF THE APPLICABLE ACTS, OR AN
OPINION OF COUNSEL SATISFACTORY TO MAKER TO THE EFFECT THAT SUCH REGISTRATIONS
ARE NOT REQUIRED.
WEST OXFORD INDUSTRIES, INC.
By:__________________________________
▇▇▇▇▇▇▇ ▇. ▇▇▇▇,
Chief Financial Officer
The signature of Striker Industries, Inc. below is for the purpose
of evidencing its understanding of, agreement and consent to, the provisions of
the above and foregoing Note which relate to issuance of shares of Common Stock
of Striker Industries, Inc. or its parent corporation upon conversion of, or in
full payment and cancellation of and exchange for, the Note, as more fully
provided in the Note and in Exhibit A thereto.
Striker Industries, Inc
By:___________________________
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, CEO
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CONVERSION NOTICE
Striker Industries, Inc.
▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
The undersigned owner of this Note hereby irrevocably exercises the option to
convert this Note into shares of Common Stock of Striker Industries, Inc. and
directs that the shares issuable and deliverable upon the conversion be issued
in the name of and delivered to the undersigned at the address designated below.
The Note of the undersigned being converted hereby is enclosed herewith for
surrender, cancellation and delivery to the Maker thereof.
---------------------------------------
Name
------------------------------------
Address
------------------------------------
-------------------------------------
Social Security or Federal ID#
Dated______________, 1996 _____________________________________
Signature of Noteholder
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Exhibit A
PERSONAL AND CONFIDENTIAL
▇▇. ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
President and CEO
Striker Industries, Inc.
▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Dear ▇▇. ▇▇▇▇▇▇▇:
Based on our discussions and a review of the information provided to us on a
confidential basis, we are aware that Striker Industries, Inc.(the "Company") is
currently engaged in efforts to consummate a merger combination transaction with
one of the oldest names in the roofing industry which has a substantial market
share of the national residential roofing market, a vertically integrated
manufacturing process and annual revenues of approximately $300 million. The
existing operations of both the Company and this merger partner would be folded
into a new entity named GSR Industries, Inc..
In order to assist the Company to accomplish such pending merger combination
transaction, the undersigned ("Lender") is prepared to provide and fund at the
Company's direction to its wholly-owned subsidiary, West Oxford Industries, Inc.
(the "Subsidiary"), a bridge loan facility in the amount of $____________ (the
"Loan") to be evidenced by that certain Convertible Subordinated Promissory Note
(the Note") of the Subsidiary in the original principal amount of the Loan to be
issued to Lender on the terms more fully described therein and in that certain
Confidential Private Placement Memorandum of the Subsidiary dated July 15, 1996
and in the Subscription Agreement of Lender with respect thereto executed and
delivered to the Subsidiary of even date herewith.
In consideration of such Loan to the Subsidiary, and as a material inducement to
Lender in connection therewith, the Company hereby agrees with ▇▇▇▇▇▇ as
follows:
1. If the Note is not converted prior to its maturity date, at the time of
payment of the Note at maturity, or upon prepayment at any time prior to
maturity of all then remaining unpaid principal of the Note, the Company
shall issue and deliver to Lender a number of restricted shares of Common
Stock of the Company (and as used throughout the balance of this letter,
the term "Company" shall include GSR Industries, Inc., the ultimate parent
corporation of Striker Industries, Inc., as appropriate) determined by
dividing the then unpaid principal of the Note by the offering price to the
public of a share of Common Stock of the Company in a public offering of
shares of Common Stock of the Company occurring near- simultaneously with
consummation of the merger combination transaction referred to above. In
addition, within 30 days after the maturity date of the Note, the Company,
at its expense and one time only, will amend, if possible, any existing
Registration Statement on Form S-3, or will file a separate Registration
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Statement on Form S-3, with respect to an offering of the shares issued to
Lender pursuant to the preceding sentence and will use its best efforts to
cause such Registration Statement to become effective and to remain
effective for such period of time as is permitted under rules and
regulations promulgated be the SEC.
2. In the event that the Note has not been converted and a public offering of
shares of Common Stock of the Company does not take place prior to maturity of
the Note, at the option of the Company, at maturity of the Note, the Company
shall either (i) cause the Note and all accrued interest thereon (less an amount
equal to the aggregate par value of the shares of the Company's Common Stock
hereinafter mentioned to be issued contemporaneously therewith) to be paid by
the Subsidiary and shall issue and deliver to Lender a number of restricted
shares of Common Stock of the Company, $.20 par value per share, determined by
dividing the unpaid principal balance of the Note at maturity by the mean of the
high and low trade prices of a share of Common Stock of the Company as quoted in
the NASDAQ SmallCap market on the maturity date of the Note, or (ii) the Company
shall issue and deliver to Lender, in full payment and cancellation of and
exchange for the Note, a number of restricted shares of Common Stock of the
Company determined by dividing the original principal amount of the Note by the
lesser of 50% of (x) the mean of the high and low trade prices of a share of
Common Stock of the Company as quoted in the NASDAQ SmallCap market during the
10 trading days immediately following the date of funding of the Loan, or (y)
the mean of the high and low trade prices of a share of Common Stock of the
Company as quoted in the NASDAQ SmallCap market on the date of filing of the
Registration Statement (or amendment thereto) referred to in the last sentence
of this section #2. In the event the mean of the applicable high and low trade
prices of a share of Common Stock of the Company, determined under the
applicable provision of subsection (ii) of the preceding sentence, exceeds $3
per share, such mean per share amount shall be reduced to, and shall then be
deemed to be, $3 for share calculation purposes under said subsection (ii) of
this section 2. In addition, within 30 days after the maturity date of the Note,
the Company, at its expense and one time only, will amend, if possible, any
existing Registration Statement on Form S-3, or will file a separate
Registration Statement on Form S-3, with respect to an offering of the shares
issued to Lender pursuant to the preceding sentence and will use its best
efforts to cause such Registration Statement to become effective and to remain
effective for such period of time as is permitted under rules and regulations
promulgated by the SEC.
3. In the event the Note is not converted and the Company fails to comply with
either #1 or #2 above, whichever is applicable, Lender shall then be
entitled to receive from the Company, in full payment and cancellation of
and exchange for the Note, a Warrant to purchase twice the number of
restricted shares of the Company to which it is entitled under whichever of
#1 or #2 is applicable hereunder at any time during a period of two years
at an exercise price of $.25 per share. Following exercise of the Warrant
by ▇▇▇▇▇▇ with respect to all shares of Common Stock underlying the
Warrant, the Company will have the same
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obligation to amend or file a Registration Statement on Form S-3 with
respect to an offering by ▇▇▇▇▇▇ of the shares issued to it upon an
exercise of the Warrant as is provided above under #1 and #2.
Please signify your agreement to the foregoing by signing this letter in the
space provided for your signature below and return a fully signed copy hereof to
the undersigned.
Very truly yours,
________________________
By:_____________________
(Title)
AGREED:
Striker Industries, Inc.
BY:______________________ Date: October 28, 1996
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, CEO