Exhibit 4.1
Page | ||
ARTICLE I | ||
DEFINITIONS AND INCORPORATION BY REFERENCE | ||
Section 1.01 | Definitions | 1 |
Section 1.02 | Other Definitions | 8 |
Section 1.03 | Rules of Construction | 9 |
Section 1.04 | Acts of Holders | 10 |
ARTICLE II | ||
THE NOTES | ||
Section 2.01 | Designation, Amount and Issuance of Notes | 11 |
Section 2.02 | Form of Notes | 11 |
Section 2.03 | Denomination of Notes | 13 |
Section 2.04 | Payments | 13 |
Section 2.05 | Execution and Authentication | 15 |
Section 2.06 | Registrar, Paying Agent and Conversion Agent | 15 |
Section 2.07 | Money and Securities Held in Trust | 17 |
Section 2.08 | Holder Lists | 17 |
Section 2.09 | Transfer and Exchange | 18 |
Section 2.10 | Transfer Restrictions | 21 |
Section 2.11 | Replacement Notes | 23 |
Section 2.12 | Temporary Notes | 23 |
Section 2.13 | Cancellation | 24 |
Section 2.14 | Outstanding Notes | 24 |
Section 2.15 | Persons Deemed Owners | 24 |
Section 2.16 | Additional Notes; Repurchases | 24 |
Section 2.17 | CUSIPs | 25 |
ARTICLE III | ||
REPURCHASE AT THE OPTION OF THE HOLDER | ||
Section 3.01 | Fundamental Change Permits Holders to Require the Company to Repurchase the Notes | 25 |
Section 3.02 | Fundamental Change Notice | 26 |
Section 3.03 | Fundamental Change Repurchase Notice | 27 |
Section 3.04 | Withdrawal of Fundamental Change Repurchase Notice | 28 |
Section 3.05 | Effect of Fundamental Change Repurchase Notice | 29 |
Section 3.06 | Notes Repurchased in Part | 29 |
Section 3.07 | Covenant to Comply With Securities Laws Upon Repurchase of Notes | 29 |
Section 3.08 | Deposit of Fundamental Change Repurchase Price | 30 |
Section 3.09 | Covenant Not to Repurchase Notes Upon Certain Events of Default | 30 |
ARTICLE IV | ||
COVENANTS | ||
Section 4.01 | Payment of Notes | 30 |
Section 4.02 | 144A Information | 30 |
Section 4.03 | Reports | 31 |
Section 4.04 | Additional Interest | 31 |
Section 4.05 | Compliance Certificate | 32 |
Section 4.06 | Restriction on Purchases by the Company and by Affiliates of the Company | 32 |
Section 4.07 | Taxes | 32 |
Section 4.08 | Corporate Existence | 33 |
Section 4.09 | Par Value Limitation | 33 |
Section 4.10 | Stay, Extension and Usury Laws | 33 |
Section 4.11 | Further Instruments and Acts | 33 |
ARTICLE V | ||
CONSOLIDATION, MERGER AND SALE OF ASSETS | ||
Section 5.01 | Company May Consolidate, Merge or Sell Its Assets Only on Certain Terms | 33 |
Section 5.02 | Successor Substituted | 34 |
ARTICLE VI | ||
DEFAULTS AND REMEDIES | ||
Section 6.01 | Events of Default | 34 |
Section 6.02 | Acceleration | 36 |
Section 6.03 | Other Remedies | 36 |
Section 6.04 | Sole Remedy for Failure to Report | 36 |
Section 6.05 | Waiver of Past Defaults | 37 |
Section 6.06 | Control by Majority | 37 |
Section 6.07 | Limitation on Suits | 38 |
Section 6.08 | Rights of Holders To Receive Payment | 38 |
Section 6.09 | Collection Suit by Trustee | 38 |
Section 6.10 | Trustee May File Proofs of Claim | 38 |
Section 6.11 | Priorities | 39 |
Section 6.12 | Undertaking for Costs | 39 |
ARTICLE VII | ||
TRUSTEE | ||
Section 7.01 | Duties of Trustee | 39 |
Section 7.02 | Rights of Trustee | 40 |
Section 7.03 | Individual Rights of Trustee | 42 |
Section 7.04 | Trustee’s Disclaimer | 42 |
Section 7.05 | Notice of Defaults | 42 |
Section 7.06 | Compensation and Indemnity | 43 |
Section 7.07 | Replacement of Trustee | 43 |
Section 7.08 | Successor Trustee by Merger | 44 |
Section 7.09 | Eligibility; Disqualification | 44 |
Section 7.10 | Trustee’s Application for Instructions from the Company | 44 |
ARTICLE VIII | ||
SATISFACTION AND DISCHARGE | ||
Section 8.01 | Discharge of Liability on Notes | 45 |
Section 8.02 | Repayment to the Company | 45 |
ARTICLE IX | ||
AMENDMENTS, SUPPLEMENTS AND WAIVERS | ||
Section 9.01 | Without Consent of Holders | 45 |
Section 9.02 | With Consent of Holders | 46 |
Section 9.03 | Execution of Supplemental Indentures | 47 |
Section 9.04 | Notices of Supplemental Indentures | 47 |
Section 9.05 | Effect of Supplemental Indentures | 47 |
Section 9.06 | Revocation and Effect of Consents, Waivers and Actions | 48 |
Section 9.07 | Notation on, or Exchange of, Notes | 48 |
ARTICLE X | ||
CONVERSIONS | ||
Section 10.01 | Right To Convert | 48 |
Section 10.02 | Conversion Procedures | 50 |
Section 10.03 | Settlement Upon Conversion | 52 |
Section 10.04 | Common Stock Issued Upon Conversion | 54 |
Section 10.05 | Adjustment of Conversion Rate | 55 |
Section 10.06 | Voluntary Adjustments | 64 |
Section 10.07 | Adjustments Upon Certain Fundamental Changes | 64 |
Section 10.08 | Effect of Recapitalization, Reclassification, Consolidation, Merger or Sale | 66 |
Section 10.09 | No Responsibility of Trustee or Conversion Agent | 68 |
Section 10.10 | NYSE Compliance | 68 |
ARTICLE XI | ||
REDEMPTION AT THE OPTION OF THE COMPANY | ||
Section 11.01 | No Sinking Fund. No sinking fund is provided for the Notes | 69 |
Section 11.02 | Right To Redeem the Notes | 69 |
Section 11.03 | Redemption Notice | 69 |
Section 11.04 | Effect of Redemption Notice | 70 |
Section 11.05 | Deposit of Redemption Price | 70 |
Section 11.06 | Effect of Deposit | 70 |
Section 11.07 | Covenant Not to Redeem Notes Upon Certain Events of Default | 70 |
Section 11.08 | Repayment to the Company | 71 |
ARTICLE XII | ||
MISCELLANEOUS | ||
Section 12.01 | Trust Indenture Act Controls | 71 |
Section 12.02 | Notices | 71 |
Section 12.03 | Certificate and Opinion as to Conditions Precedent | 72 |
Section 12.04 | Statements Required in Certificate or Opinion | 72 |
Section 12.05 | Separability Clause | 73 |
Section 12.06 | Rules by Trustee | 73 |
Section 12.07 | Governing Law and Waiver of Jury Trial | 73 |
Section 12.08 | No Recourse Against Others | 73 |
Section 12.09 | Calculations | 73 |
Section 12.10 | Successors | 73 |
Section 12.11 | Multiple Originals | 73 |
Section 12.12 | Table of Contents; Headings | 74 |
Section 12.13 | Force Majeure | 74 |
Section 12.14 | Submission to Jurisdiction | 74 |
Section 12.15 | Legal Holidays | 74 |
Section 12.16 | No Security Interest Created | 74 |
Section 12.17 | Benefits of Indenture | 74 |
Section 12.18 | U.S.A. Patriot Act | 74 |
Section 12.19 | Copies of Transaction Documents | 74 |
EXHIBIT A | FORM OF NOTE | A-1 |
EXHIBIT B | FORM OF TRANSFER CERTIFICATE | B-1 |
EXHIBIT C | FORM OF RESTRICTED STOCK LEGEND | C-1 |
Term: | Defined in Section: | |
“Act” | 1.04 | |
“Additional Interest” | 4.04(a) | |
“Additional Shares” | 10.07(a) | |
“Agent Members” | 2.02(c) | |
“Averaging Period” | 10.05(e) | |
“Cash Settlement” | 10.03(a) | |
“Clause A Distribution” | 10.05(c) | |
“Clause B Distribution” | 10.05(c) | |
“Clause C Distribution” | 10.05(c) | |
“Combination Settlement” | 10.03(a) | |
“Conversion Agent” | 2.06(a) | |
“Conversion Consideration” | 10.03(a)(ii) | |
“Conversion Date” | 10.02(a) | |
“Conversion Notice” | 10.02(a) | |
“Defaulted Amount” | 2.04(d) | |
“Default Interest” | 2.04(d) | |
“Effective Date” | 10.05(n)(i)(2) | |
“Event of Default” | 6.01(a) | |
“Ex-Dividend Date” | 10.05(n)(i)(3) | |
“Expiration Time” | 10.05(e) | |
“Fundamental Change Notice” | 3.02(a) | |
“Fundamental Change Notice Date” | 3.02(a) | |
“Fundamental Change Repurchase Date” | 3.01(c) | |
“Fundamental Change Repurchase Notice” | 3.03(a)(i) | |
“Fundamental Change Repurchase Price” | 3.01(b) | |
“Interest Payment Date” | 2.04(a)(ii) | |
“Make-Whole Fundamental Change” | 10.07(a) | |
“Make-Whole Fundamental Change Effective Date” | 10.07(b) | |
“Maturity Date” | 2.04(a) | |
“Measurement Period” | 10.01(b)(ii) | |
“Merger Event” | 10.08(a) | |
“Merger Successor Corporation” | 10.08(a) | |
“Multi-Clause Distribution” | 10.05(c) | |
“Paying Agent” | 2.06(a) | |
“Physical Settlement” | 10.03(a) | |
“Redemption” | 11.02(a) | |
“Redemption Date” | 11.02(c) | |
“Redemption Notice” | 11.03 | |
“Redemption Notice Date” | 11.03 | |
“Redemption Price” | 11.02(b) | |
“Reference Property” | 10.08(a) | |
“Reference Property Unit” | 10.08(a) | |
“Register” | 2.06(a) | |
“Registrar” | 2.06(a) | |
“Regular Record Date” | 2.04(a) | |
“Reorganization Event” | 5.01 | |
“Reorganization Successor Corporation” | 5.01(a)(ii) | |
“Reporting Event of Default” | 6.04(a) | |
“Restricted Note” | 2.10(a) | |
“Special Interest” | 6.04(a) | |
“Special Regular Record Date” | 2.04(d)(i) | |
“Spin-Off” | 10.05(c)(ii) | |
“Temporary Notes” | 2.12 | |
“Trading Price Condition” | 10.01(b)(ii) | |
“Valuation Period” | 10.05(c)(ii) |
COVENANTS
CONSOLIDATION, MERGER AND SALE OF ASSETS
DEFAULTS AND REMEDIES
TRUSTEE
SATISFACTION AND DISCHARGE
AMENDMENTS, SUPPLEMENTS AND WAIVERS
CONVERSIONS
![](https://capedge.com/proxy/8-K/0001140361-19-007105/nc10001042x1ex4-1_image01.jpg)
CR0 = | the Conversion Rate in effect immediately prior to the Open of Business on the Ex-Dividend Date of such dividend or distribution, or immediately prior to the Open of Business on the Effective Date of such share split or share combination, as applicable; |
CR1 = | the Conversion Rate in effect immediately after the Open of Business on such Ex-Dividend Date or the Open of Business on such Effective Date; |
OS0 = | the number of shares of Common Stock outstanding immediately prior to the Open of Business on such Ex-Dividend Date or Effective Date, as applicable, prior to giving effect to such dividend, distribution, share split or share combination; and |
OS1 = | the number of shares of Common Stock outstanding immediately after the Open of Business on such Ex-Dividend Date or Effective Date, as applicable, after, and solely as a result of, giving effect to such dividend, distribution, share split or share combination. |
![](https://capedge.com/proxy/8-K/0001140361-19-007105/nc10001042x1ex4-1_image02.jpg)
CR0 = | the Conversion Rate in effect immediately prior to the Open of Business on the Ex-Dividend Date for such issuance; |
CR1 = | the Conversion Rate in effect immediately after the Open of Business on such Ex-Dividend Date; |
OS0 = | the number of shares of Common Stock outstanding immediately prior to the Open of Business on such Ex-Dividend Date; |
X = | the total number of shares of Common Stock issuable pursuant to such rights, options or warrants; and |
Y = | the number of shares of Common Stock equal to the quotient of (i) the aggregate price payable to exercise such rights, options or warrants, over (ii) the average of the Last Reported Sale Prices of the Common Stock over the 10 consecutive Trading Day period ending on, and including, the Trading Day immediately preceding the date of announcement of the issuance of such rights, options or warrants. |
![](https://capedge.com/proxy/8-K/0001140361-19-007105/nc10001042x1ex4-1_image03.jpg)
CR0 = | the Conversion Rate in effect immediately prior to the Open of Business on the Ex-Dividend Date for such distribution; |
CR1 = | the Conversion Rate in effect immediately after the Open of Business on such Ex-Dividend Date; |
SP0 = | the average of the Last Reported Sale Prices of the Common Stock over the 10 consecutive Trading Day period ending on, and including, the Trading Day immediately preceding the Ex-Dividend Date for such distribution; and |
FMV = | the fair market value (as determined by the Company’s Board of Directors) of the shares of Capital Stock, evidences of indebtedness, assets, property, rights, options or warrants distributed with respect to each outstanding share of Common Stock on the Ex-Dividend Date for such distribution. |
![](https://capedge.com/proxy/8-K/0001140361-19-007105/nc10001042x1ex4-1_image04.jpg)
CR0 = | the Conversion Rate in effect immediately prior to the Open of Business on the Ex-Dividend Date for such Spin-Off; |
CR1 = | the Conversion Rate in effect immediately after the Open of Business on such Ex-Dividend Date; |
FMV0 = | the average of the Last Reported Sale Prices of the Capital Stock or similar equity interest distributed to holders of the Common Stock applicable to one share of Common Stock (determined for purposes of the definition of Last Reported Sale Price as if such Capital Stock or similar equity interest were the Common Stock) over the first 10 consecutive Trading Day period after, and including, the Ex-Dividend Date of the Spin-Off (the “Valuation Period”); and |
MP0 = | the average of the Last Reported Sale Prices of the Common Stock over the Valuation Period. |
![](https://capedge.com/proxy/8-K/0001140361-19-007105/nc10001042x1ex4-1_image05.jpg)
CR0 = | the Conversion Rate in effect immediately prior to the Open of Business on the Ex-Dividend Date for such dividend or distribution; |
CR1 = | the Conversion Rate in effect immediately after the Open of Business on the Ex-Dividend Date for such dividend or distribution; |
SP0 = | the Last Reported Sale Price of the Common Stock on the Trading Day immediately preceding the Ex-Dividend Date for such dividend or distribution; and |
C = | the amount in cash per share the Company distributes to holders of Common Stock. |
![](https://capedge.com/proxy/8-K/0001140361-19-007105/nc10001042x1ex4-1_image06.jpg)
CR0 = | the Conversion Rate in effect immediately prior to the Expiration Time; |
CR1 = | the Conversion Rate in effect immediately after the Expiration Time; |
AC = | the aggregate value of all cash and any other consideration (as determined by the Board of Directors) paid or payable for shares purchased in such tender or exchange offer; |
OS0 = | the number of shares of Common Stock outstanding immediately prior to the time (the “Expiration Time”) on the date such tender or exchange offer expires (prior to giving effect to the purchase of all shares accepted for purchase or exchange in such tender or exchange offer); |
OS1 = | the number of shares of Common Stock outstanding immediately after the Expiration Time (after giving effect to the purchase of all shares accepted for purchase or exchange in such tender or exchange offer); and |
SP1 = | the average of the Last Reported Sale Prices of the Common Stock over the 10 consecutive Trading Day period (the “Averaging Period”) commencing on, and including, the Trading Day next succeeding the date such tender or exchange offer expires. |
Effective Date/Date of Notice of Redemption | Stock price | |||||||||||
$21.55 | $25.00 | $28.55 | $33.00 | $37.12 | $45.00 | $50.00 | $55.00 | $60.00 | $70.00 | $80.00 | $100.00 | |
April 15, 2019 | 11.3820 | 10.0623 | 7.8259 | 5.9056 | 4.6687 | 3.1539 | 2.4943 | 2.0219 | 1.6366 | 1.1140 | 0.7695 | 0.4163 |
April 15, 2020 | 11.3820 | 9.6503 | 7.3566 | 5.4328 | 4.2215 | 2.7805 | 2.1723 | 1.7438 | 1.3983 | 0.9397 | 0.6420 | 0.3673 |
April 15, 2021 | 11.3820 | 9.0583 | 6.6981 | 4.7813 | 3.6153 | 2.2939 | 1.7563 | 1.3947 | 1.1033 | 0.7297 | 0.4933 | 0.2913 |
April 15, 2022 | 11.3820 | 8.2183 | 5.7629 | 3.8662 | 2.7856 | 1.6561 | 1.2303 | 0.9638 | 0.7500 | 0.4926 | 0.3308 | 0.2143 |
April 15, 2023 | 11.3820 | 6.9623 | 4.3268 | 2.4935 | 1.5894 | 0.8339 | 0.5943 | 0.4674 | 0.3600 | 0.2440 | 0.1670 | 0.1403 |
April 15, 2024 | 11.3820 | 4.9783 | 0.0000 | 0.0000 | 0.0000 | 0.0000 | 0.0000 | 0.0000 | 0.0000 | 0.0000 | 0.0000 | 0.0000 |
REDEMPTION AT THE OPTION OF THE COMPANY
MISCELLANEOUS
New Hartford, NY 13413
PAR TECHNOLOGY CORPORATION | ||
By: | /s/ Bryan Menar | |
Name: Bryan Menar | ||
Title: Chief Financial Officer | ||
THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A., as Trustee | ||
By: | /s/ Karen Yu | |
Name: Karen Yu | ||
Title: Vice President |
FORM OF NOTE
(A) | TO THE COMPANY OR ANY SUBSIDIARY THEREOF; |
(B) | PURSUANT TO A REGISTRATION STATEMENT THAT HAS BECOME EFFECTIVE UNDER THE SECURITIES ACT; |
(C) | TO A PERSON THAT YOU REASONABLY BELIEVE TO BE A QUALIFIED INSTITUTIONAL BUYER AND IN COMPLIANCE WITH RULE 144A UNDER THE SECURITIES ACT; OR |
(D) | UNDER ANY OTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT (INCLUDING, IF AVAILABLE, THE EXEMPTION PROVIDED BY RULE 144 UNDER THE SECURITIES ACT). |
1 | Include for Global Notes only. |
2 | Insert Cede & Co. for Global Notes. |
3 | Include for Global Notes only. |
PAR TECHNOLOGY CORPORATION, as Issuer | ||
By: | ||
Name: | ||
Title: | ||
Dated: |
THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A., as Trustee | ||
By: | ||
Authorized Signatory |
[FORM OF REVERSE OF NOTE]
PAR TECHNOLOGY CORPORATION
4.500% Convertible Senior Notes due 2024
This Note is one of a duly authorized issue of notes of PAR Technology Corporation (the “Company”), designated as its 4.500% Convertible Senior Notes due 2024 (the “Notes”), all issued or to be issued under and pursuant to an indenture dated as of the Issue Date (the “Indenture”), between the Company and The Bank of New York Mellon Trust Company, N.A. (the “Trustee”), to which Indenture and all indentures supplemental thereto reference is hereby made for a description of the rights, limitations of rights, obligations, duties and immunities thereunder of the Trustee, the Company and the Holders. Capitalized terms used herein and not defined herein have the meanings ascribed to them in the Indenture, and the terms of the Notes include those stated in the Indenture and those incorporated into the Indenture. Notwithstanding anything herein to the contrary, to the extent that any provision of this Note conflicts with the express provisions of the Indenture, the provisions of the Indenture will govern and control.
1. | Interest. |
This Note will bear interest at a rate equal to 4.500% per annum. Interest on this Note will accrue from the most recent date to which interest has been paid or provided for, or, if no interest has been paid or provided for, the Issue Date. Interest will be payable semiannually in arrears on April 15 and October 15 of each year, beginning on October 15, 2019. Each payment of cash interest on this Note will include interest accrued for the period commencing on and including the immediately preceding Interest Payment Date (or, if none, the Issue Date) through, and including, the day before the applicable Interest Payment Date.
Pursuant to Section 4.04 of the Indenture, in certain circumstances, the Company will pay Additional Interest on this Note.
Pursuant to Section 6.04 of the Indenture, in certain circumstances, the Company will pay Special Interest on this Note.
Pursuant to Section 2.04 of the Indenture, in certain circumstances, the Company will pay Default Interest on Defaulted Amounts with respect to this Note.
2. | Method of Payment. |
The Company will promptly make all payments on this Note on the dates and in the manner provided herein and in the Indenture. Payments on Notes represented by a Global Note (including principal and interest) will be made by wire transfer of immediately available funds to the accounts specified by Depositary. The Company will pay principal of, and any Fundamental Change Repurchase Price or Redemption Price for, Definitive Notes at the office or agency designated by the Company for such purpose. Interest on Definitive Notes will be made by check or by wire transfer, as described in Section 2.04 of the Indenture, except that any payment of Interest due on the Maturity Date will be made at the office or agency designated by the Company for such purpose.
All payments on this Note will be made in money of the United States that at the time of payment is legal tender for payment of public and private debts.
3. | Paying Agent, Conversion Agent and Registrar. |
Initially, The Bank of New York Mellon Trust Company, N.A. will act as the Trustee, Paying Agent, Conversion Agent and Registrar. The Company may appoint and change any Paying Agent, Conversion Agent or Registrar; provided, that the Company will maintain at least one Paying Agent, Conversion Agent and Registrar in the continental United States. The Company or any of its Subsidiaries or any of their Affiliates may act as Paying Agent, Conversion Agent or Registrar.
4. | Repurchase By the Company at the Option of the Holder upon a Fundamental Change. |
At the option of the Holder, and subject to the terms and conditions of the Indenture, upon the occurrence of a Fundamental Change, each Holder will have the right, at its option, to require the Company to repurchase for cash all of its Notes, or any portion of its Notes having a principal amount equal to $1,000 or an integral multiple thereof, at a Fundamental Change Repurchase Price equal to 100% of the principal amount of Notes to be purchased plus accrued and unpaid interest, if any, to but excluding, the Fundamental Change Repurchase Date, unless the Fundamental Change Repurchase Date occurs after a Regular Record Date and on or prior to the Interest Payment Date corresponding to such Regular Record Date, in which case the Company will pay the accrued and unpaid interest on such Notes, on such Interest Payment Date, to the Holder of such Notes as of the Close of Business on such Regular Record Date, and the Fundamental Change Repurchase Price shall not include such accrued and unpaid interest. To exercise its purchase right, a Holder must comply with the procedures set forth in Article III of the Indenture.
5. | Redemption at the Option of the Company. |
Prior to April 15, 2022, the Company may not redeem the Notes. Subject to the terms of the Indenture, on or after April 15, 2022, and prior to the Maturity Date, the Company may redeem all, but not less than all, of the Notes if the Last Reported Sale Price of the Common Stock equals or exceeds 130% of the Conversion Price in effect on each of at least 20 Trading Days (whether or not consecutive) during the 30 consecutive Trading Day period (including the last Trading Day of such period) ending on the Trading Day immediately prior to the date the Company delivers the Redemption Notice for such redemption. Any Redemption Date must be at least 55, but not more than 70, Scheduled Trading Days after the date on which the Company delivers the applicable Redemption Notice. The Redemption Price that the Company will pay for any Notes that it redeems will equal to 100% of the principal amount of Notes to be purchased plus accrued and unpaid interest, if any, to but excluding, the Redemption Date, unless the Redemption Date occurs after a Regular Record Date and on or before the Interest Payment Date corresponding to such Regular Record Date, in which case the Redemption Price for any Notes to be redeemed will equal 100% of the principal amount of such Notes, and accrued and unpaid interest, if any, on such Notes to, but excluding, such Interest Payment Date will be payable, on such Interest Payment Date, to the Holder of such Notes at the Close of Business on such Regular Record Date.
6. | Conversion. |
Subject to, and upon compliance with, the provisions of Article X of the Indenture, a Holder may, at its option, convert all of its Notes, or any portion of its Notes having a principal amount equal to $1,000 or an integral multiple thereof, (i) subject to satisfaction of the conditions set forth in Section 10.01(b) of the Indenture, at any time prior to the Close of Business on the Business Day immediately preceding October 15, 2023, under the circumstances and during the periods set forth in Section 10.01(b) of the Indenture, and (ii) irrespective of the conditions set forth in Section 10.01(b) of the Indenture, on or after October 15, 2023, and prior to the Close of Business on the second Business Day immediately preceding the Maturity Date, in each case, into Conversion Consideration, as provided in Article X of the Indenture, based on the Conversion Rate. Notes may not be converted after the Close of Business on the second Business Day immediately preceding the Maturity Date.
7. | Denominations; Transfer; Exchange. |
The Notes are in fully registered form, without coupons, in minimum denominations of $1,000 of principal amount and in integral multiples thereof. A Holder may transfer or exchange Notes in accordance with the Indenture. The Registrar may require a Holder, among other things, to furnish appropriate endorsements and transfer documents and to pay any taxes and fees required by law or permitted by the Indenture. The Registrar need not transfer or exchange any Notes in respect of which a Fundamental Change Repurchase Notice has been given and not withdrawn (except, in the case of a Note to be repurchased in part, the portion of the Note not to be repurchased), after the Company has delivered a Notice of Redemption (except to the extent that Notes are converted or the Company fails to pay the Redemption Price in accordance with Article XI of the Indenture) or in respect of which a Conversion Notice has been given (except, in the case of a Note to be converted in part, the portion of the Note not to be converted).
8. | Amendment, Supplement and Waiver. |
Subject to certain exceptions, the Indenture permits the Indenture and the Notes to be amended or supplemented with the written consent of the Holders of at least a majority in aggregate principal amount of the then outstanding Notes. In certain circumstances, the Company and the Trustee may also amend or supplement the Indenture or the Notes without the consent of any Holder. Subject to certain exceptions, the Indenture permits the waiver of certain Events of Default or the noncompliance with certain provisions of the Indenture and of the Notes with the written consent of the Holders of at least a majority in aggregate principal amount of the then outstanding Notes.
9. | Defaults and Remedies. |
Subject to the immediately following paragraph, if an Event of Default specified in the Indenture occurs and is continuing, the Trustee, by delivering a written notice to the Company, or the Holders of at least 25% in aggregate principal amount of the Notes then outstanding, by delivering a written notice to the Company and the Trustee, may declare all the Notes to be due and payable immediately by delivering notice to the Company. In addition, certain specified Events of Default will cause the Notes to become immediately due and payable without the Trustee or Holders taking any action.
If the Company so elects, the sole remedy for an Event of Default relating to the Company’s failure to comply with the reporting obligations under Section 4.03 of the Indenture will consist exclusively of the right to receive an Special Interest on the principal amount of the Notes as specified in Section 6.04 (a) of the Indenture.
Holders may not enforce the Indenture or the Notes except as provided in the Indenture. The Trustee may refuse to enforce the Indenture or the Notes unless it receives indemnity or security satisfactory to it. Holders of a majority of the principal amount of the then outstanding Notes may direct the Trustee in its exercise of any trust or power, subject to certain limitations set forth in the Indenture. Subject to certain exceptions, the Trustee may withhold from Holders notice of any continuing Event of Default or Default if it determines that withholding notice is in their interest.
10. | Persons Deemed Owners. |
The Registrar will keep a register for the recordation of, and will record, the name and address of the Holders of this Note. Absent manifest error, the entries in the Register will be conclusive and the Person whose name is recorded in the Register pursuant to the terms of the Indenture may be treated as the Holder hereof for all purposes.
11. | Unclaimed Money or Notes. |
The Trustee and the Paying Agent will return to the Company upon written request any money or securities held by them for the payment of any amount with respect to the Notes that remain unclaimed for two years, subject to applicable unclaimed property law. After return to the Company, Holders entitled to the money or securities must look to the Company for payment as general creditors, unless an applicable abandoned property law designates another Person.
12. | Trustee Dealings with the Company. |
The Trustee, in its individual or any other capacity, may become the owner or pledgee of Notes and may otherwise deal with and collect obligations owed to it by the Company or its Affiliates and may otherwise deal with the Company or its Affiliates with the same rights it would have if it were not the Trustee.
13. | Calculations in Respect of Notes. |
Except as otherwise provided in the Indenture, the Company will be responsible for making all calculations called for under the Notes and the Indenture. These calculations include, but are not limited to, determinations of the Last Reported Sale Price of the Common Stock or any other security, the Daily Settlement Amounts, the Daily Conversion Values, accrued interest payable on the Notes and the Conversion Rate in effect on any Conversion Date.
The Company will make all these calculations in good faith and, absent manifest error, its calculations will be final and binding on all Holders.
14. | No Recourse Against Others. |
A director, officer, employee or stockholder, as such, of the Company will not have any liability for any obligations of the Company under the Notes or the Indenture or for any claim based on, in respect of or by reason of such obligations or their creation. By accepting a Note, each Holder waives and releases all such liability. The waiver and release are part of the consideration for the issue of the Notes.
15. | Authentication. |
This Note will not be valid until an authorized signatory of the Trustee manually signs the Trustee’s certificate of authentication on the other side of this Note.
16. | Abbreviations. |
Customary abbreviations may be used in the name of a Holder or an assignee, such as TEN COM (=tenants in common), TEN ENT (=tenants by the entireties), JT TEN (=joint tenants with right of survivorship and not as tenants in common), CUST (=custodian), and U/G/M/A (=Uniform Gift to Minors Act).
17. | GOVERNING LAW. |
THE INDENTURE AND THE NOTES WILL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK. EACH OF THE COMPANY, THE TRUSTEE AND EACH HOLDER 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 THE INDENTURE, THE NOTES OR THE TRANSACTION CONTEMPLATED HEREBY.
18. | CUSIP Numbers. |
Pursuant to a recommendation promulgated by the Committee on Uniform Note Identification Procedures, the Company has caused CUSIP numbers to be printed on the Notes and the Trustee may use CUSIP numbers in any notices as a convenience to Holders. No representation is made as to the accuracy of such numbers either as printed on the Notes or as contained in any notice, and reliance may be placed only on the other identification numbers placed thereon.
The Company will furnish to any Holder, upon written request and without charge, a copy of the Indenture which has in it the text of this Note. Requests may be made to:
PAR Technology Corporation
8383 Seneca Turnpike
New Hartford, NY 13413
Attn: Chief Financial Officer
CONVERSION NOTICE
PAR TECHNOLOGY CORPORATION
4.500% CONVERTIBLE SENIOR NOTES DUE 2024
To convert this Note, check the box ☐
To convert the entire principal amount of this Note, check the box ☐
To convert only a portion of the principal amount of this Note, check the box and here specify the principal amount to be converted, which principal amount must equal $1,000 or an integral multiple thereof:
$ | ||
Signature Guaranteed | ||
Participant in a Recognized Signature | ||
Guarantee Medallion Program | ||
By: | ||
Authorized Signatory |
FUNDAMENTAL CHANGE REPURCHASE NOTICE
The Bank of New York Mellon Trust Company, N.A.,
as Trustee and Registrar
500 Ross Street 12th Floor
Pittsburgh, PA 15262
The undersigned registered owner of this Note hereby acknowledges receipt of a notice from PAR Technology Corporation (the “Company”) as to the occurrence of a Fundamental Change with respect to the Company and specifying the Fundamental Change Repurchase Date and requests and instructs the Company to pay to the Holder hereof in accordance with the applicable provisions of the Indenture referred to in this Note (1) the entire principal amount of this Note, or the portion thereof (that is equal to $1,000 principal amount or an integral multiple thereof) below designated, and (2) if such Fundamental Change Repurchase Date does not occur during the period after a Regular Record Date and on or prior to the corresponding Interest Payment Date, accrued and unpaid interest, if any, thereon to, but excluding, such Fundamental Change Repurchase Date.
Principal amount to be repaid (if less than all):
Signature Guaranteed
Participant in a Recognized Signature | ||
Guarantee Medallion Program | ||
Guarantee Medallion Program | ||
By: | ||
Authorized Signatory |
[Include for Global Note]
SCHEDULE OF INCREASES AND DECREASES OF GLOBAL NOTE
Initial Principal Amount of Global Note: $[ ]
Date | Amount of Increase in Principal Amount of Global Note | Amount of Decrease in Principal Amount of Global Note | Principal Amount of Global Note After Increase or Decrease | Notation by Registrar or Note Custodian |
Exhibit B
FORM OF TRANSFER CERTIFICATE
PAR TECHNOLOGY CORPORATION
4.500% CONVERTIBLE SENIOR NOTES DUE 2024
Transfer Certificate
In connection with any transfer of any of this Note, the undersigned registered owner of this Note hereby certifies, with respect to $ principal amount of the above-captioned Notes presented or surrendered on the date hereof (the “Surrendered Note”) for registration of transfer, or for exchange or conversion where the securities issuable upon such exchange or conversion are to be registered in a name other than that of the undersigned registered owner (each such transaction being a “Transfer”), that such Transfer complies with the restrictive legend set forth on the face of the Surrendered Note for the reason checked below:
☐ | The Transfer of the Surrendered Note is being made to the Company or a Subsidiary thereof; or |
☐ | The Transfer of the Surrendered Note complies with Rule 144A under the Securities Act; or |
☐ | The Transfer of the Surrendered Note is being made pursuant to an effective registration statement under the Securities Act; or |
☐ | The Transfer of the Surrendered Note is being made pursuant to another available exemption from the registration requirement of the Securities Act. |
Date: |
By: |
(If the registered owner is a corporation, partnership or fiduciary, the title of the Person signing on behalf of such registered owner must be stated.)
Signature Guaranteed
Participant in a Recognized Signature | ||
Guarantee Medallion Program | ||
By: | ||
Authorized Signatory |
Exhibit C
FORM OF RESTRICTED STOCK LEGEND
THE SALE OF THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”) OR ANY STATE SECURITIES LAWS, AND, ACCORDINGLY, PRIOR TO THE RESALE RESTRICTION TERMINATION DATE (AS DEFINED BELOW), THIS SECURITY (AND ANY BENEFICIAL INTEREST HEREIN) MAY NOT BE OFFERED, RESOLD OR OTHERWISE TRANSFERRED, EXCEPT:
(A) TO THE COMPANY OR ANY SUBSIDIARY THEREOF;
(B) PURSUANT TO A REGISTRATION STATEMENT THAT HAS BECOME EFFECTIVE UNDER THE SECURITIES ACT;
(C) TO A PERSON THAT YOU REASONABLY BELIEVE TO BE A QUALIFIED INSTITUTIONAL BUYER AND IN COMPLIANCE WITH RULE 144A UNDER THE SECURITIES ACT; OR
(D) UNDER ANY OTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT (INCLUDING, IF AVAILABLE, THE EXEMPTION PROVIDED BY RULE 144 UNDER THE SECURITIES ACT).
THE “RESALE RESTRICTION TERMINATION DATE” MEANS THE DATE: (A) THAT IS AT LEAST ONE YEAR AFTER THE LAST ORIGINAL ISSUE DATE OF THE COMPANY’S 4.500% CONVERTIBLE SENIOR NOTES DUE 2024; AND (B) SUCH LATER DATE, IF ANY, AS MAY BE REQUIRED BY APPLICABLE LAW.
PRIOR TO ANY TRANSFER PURSUANT TO THE FOREGOING CLAUSE (D), THE COMPANY AND THE TRANSFER AGENT RESERVE THE RIGHT TO REQUIRE THE DELIVERY OF SUCH CERTIFICATIONS, LEGAL OPINIONS OR OTHER INFORMATION AS THEY MAY REASONABLY REQUIRE AND MAY RELY UPON TO CONFIRM THAT SUCH TRANSFER IS BEING MADE PURSUANT TO AN EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT.