EXHIBIT 4.9
[COPY]
THIS CONVERTIBLE SUBORDINATED NOTE AND THE SHARES OF COMMON STOCK ISSUABLE UPON
CONVERSION HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED, AND ARE NOT TRANSFERABLE EXCEPT UPON THE CONDITIONS SPECIFIED IN THE
PURCHASE AGREEMENT REFERRED TO HEREIN.
BOLLE INC.
0% CONVERTIBLE SUBORDINATED NOTE DUE MAY 29, 2002
Dated: June 1, 1998
New York, New York
FOR VALUE RECEIVED, the undersigned, BOLLE INC. (the "Company"), a
Delaware corporation, hereby promises to pay to OZ Master Fund, Ltd. or
registered assigns, the principal sum of Seven Million ($7,000,000) Dollars, or
such lesser amount as may be outstanding hereunder on May 29, 2002, without
interest.
Payments of principal and other cash payments required pursuant to the
terms of the Purchase Agreement (as hereinafter defined), if applicable, shall
be made in lawful money of the United States of America at the principal office
of the Company in Rye, New York or at such other place as the Company shall have
designated for such purpose to the holder hereof in writing and may be paid by
check mailed, or wire transfer as provided in the Purchase Agreement referred to
below, to the registered address designated by the holder hereof for such
purpose.
This Convertible Note is one of a duly authorized issue of Convertible
Notes, aggregating $7,000,000 in principal amount, issued pursuant to a certain
Convertible Subordinated Note Purchase Agreement (hereinafter called the
"Purchase Agreement") dated as of May 29, 1998, between the Company and the
Purchasers named in said Purchase Agreement (capitalized terms not otherwise
defined herein shall have their respective meanings as set forth in the Purchase
Agreement).
This Convertible Note is subject to the provisions of and is entitled
to the benefits of the Purchase Agreement. In addition, the payment of the
principal and other cash payments, if applicable, on this Convertible Note is
subordinated in right of payment to the prior payment in full to all Senior
Indebtedness (as defined in the Purchase Agreement) of the Company to the extent
and in the manner set forth in the Purchase Agreement. Each holder of this
Convertible Note, by accepting the same, agrees to and shall be bound by the
provisions of the Purchase Agreement.
This Convertible Note is transferable only upon the conditions
specified in the Purchase Agreement. Notwithstanding the foregoing, however,
this Note is registered with the Company as to both principal and other cash
payments, if applicable, and
transfer of this Convertible Note can be effected only by surrender of this
Convertible Note and either reissuance by the Company of this Convertible Note
or by issuance by the Company of a new Convertible Note. The Company shall
maintain a register for the transfer of this Convertible Note (the "Schedule"),
containing the name and address of any holder(s) of this Convertible Note. All
transfers of this Convertible Note and/or transferees of this Convertible Note
shall be registered in the Schedule. This Convertible Note may be assigned only
upon the surrender thereof at the address of the Company set forth in the
Purchase Agreement. Thereupon, the Company shall execute in the name of the
assignee either a reissued Convertible Note or a new Convertible Note, shall
register such transfer in the Schedule and shall deliver either a reissued
Convertible Note or a new Convertible Note to the holder. Upon surrender or
presentation of this Convertible Note to the Company for transfer, this
Convertible Note shall be duly endorsed and shall specify the name and address
of the transferee.
This Convertible Note is subject to certain mandatory and optional
conversion provisions pursuant to which this Convertible Note is convertible
into Shares of Common Stock of the Company (as set forth in Article 11 of the
Purchase Agreement) in the manner, and upon the terms and conditions provided in
the Purchase Agreement including, but not limited to, the procedures set forth
in Exhibit C and C-1 to the Purchase Agreement.
The Convertible Note shall be redeemed by the Company in the manner,
and upon the terms and conditions provided in the Purchase Agreement.
Notwithstanding anything to the contrary contained herein (subject to the
provisions of Article 5 of the Purchase Agreement) (a) or in the Purchase
Agreement, in the event that the Registration Statement is not declared
effective by the Commission within one hundred and eighty (180) days after the
Closing Date, then this Convertible Note shall be redeemed by the Company at the
Redemption Price in accordance with the terms and conditions set forth in
Article Twelve of the Purchase Agreement, and (b) a portion of the principal
amount of the Convertible Note may be redeemable by the Company at the
Redemption Price in accordance with the terms and conditions of Section 11.12 of
the Purchase Agreement.
In case an Event of Default, as defined in the Purchase Agreement,
shall occur and be continuing, the principal of this Convertible Note may be
declared due and payable in the manner and with the effect provided in the
Purchase Agreement.
No reference herein to the Purchase Agreement and no provision hereof
or thereof shall alter or impair the obligation of the Company, which is
absolute and unconditional, to pay the principal hereof and other cash payments
hereon at the respective times and places set forth herein and in the Purchase
Agreement.
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The terms and provisions of this Convertible Note may be amended or
waived in accordance with the procedures provided in Section 15 of the Purchase
Agreement.
This Convertible Note is delivered in and shall be construed and
enforced in accordance with and governed by the laws of the State of New York,
without giving effect to its conflict of laws rules.
Subject to the provisions of Article 19 of the Purchase Agreement, the
Company may treat the person in whose name this Convertible Note is registered
as the owner and holder of this Convertible Note for the purpose of receiving
payment of principal and interest on this Convertible Note and for all other
purposes whatsoever and the Company shall not be affected by any notice to the
contrary.
IN WITNESS WHEREOF, BOLLE INC. has caused this Convertible Note to be
dated, and to be executed on its behalf by its officer thereunto duly
authorized.
BOLLE INC.
By: /s/ Ian G. H. Ashken
---------------------------------
Name: Ian G. H. Ashken
Title: Chief Financial Officer
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REGISTER FOR TRANSFERS
Holder Name and Address
- ------ ----------------
c/o OZ Master Fund, Ltd. OZ Management, L.L.C.
153 East 53rd Street,
43rd Floor
New York, New York 10022
Attn: Joel Frank, CFO
Facsimile: 212-292-5950
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