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EXHIBIT 4.5
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AMENDED AND RESTATED
SUPPLEMENT
No. 2
Effective as of September 12, 1996
to
INDENTURE
Dated as of December 17, 1993
by and among
SIMULA, INC.
as Issuer
THE SUBSIDIARY GUARANTORS
as Guarantors
and
BANK ONE TRUST COMPANY, NA
as Trustee
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Series C 10% Senior Subordinated Convertible Notes
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TABLE OF CONTENTS
ARTICLE 1 DEFINITIONS......................................................................................... 1
SECTION 1.1 Terms Defined in Original Indenture....................................................... 1
SECTION 1.2 Other Definitions......................................................................... 2
ARTICLE 2 SERIES C 10% SENIOR SUBORDINATED CONVERTIBLE NOTES DUE 1999......................................... 2
SECTION 2.1 Designation................................................................................ 2
SECTION 2.2 Authentication............................................................................. 2
SECTION 2.3 Form of Series C Notes..................................................................... 2
SECTION 2.4 Terms...................................................................................... 2
SECTION 2.5 Denominations.............................................................................. 4
SECTION 2.6 Form of Series C Note...................................................................... 4
SECTION 2.7 Interest Rate Calculation................................................................. 10
SECTION 2.8 Supplemental Indentures Without Consent of Holders........................................ 10
ARTICLE 3 COVENANTS........................................................................................... 10
SECTION 3.1 Subsidiary Guarantors..................................................................... 10
ARTICLE 4 MISCELLANEOUS....................................................................................... 10
SECTION 4.1 Governing Law............................................................................. 10
SECTION 4.2 Counterparts.............................................................................. 10
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SUPPLEMENT NO. 2
DATED SEPTEMBER 12, 1996
This supplemental indenture ("Supplement") is dated as of September 12,
1996, among Simula, Inc., an Arizona corporation (hereinafter the "Company"),
having its principal office at 2700 North Central Avenue, Suite 1000, Phoenix,
Arizona 85004; and Simula Government Products, Inc., Intaero, Inc., Airline
Interiors, Inc., Coach and Car Equipment Corporation, Artcraft Industries Corp.,
Simula Automotive Safety Devices, Inc., Safety Equipment, Inc., Sedona
Scientific, Inc., International Center for Safety Education, Inc., all Arizona
corporations, and ViaTech, Inc., a Delaware corporation (hereinafter the
"Subsidiary Guarantors"), having the same principal office as the Company; and
Bank One Trust Company, NA, having its principal office at Corporate Trust
Client Service Group, 100 East Broad Street, Columbus, Ohio 43271-0181, as
trustee (hereinafter the "Trustee").
R E C I T A L S
The Company has duly authorized the creation of an issue of one or more
series of its Notes of the tenor and amount set forth in its indenture dated as
of December 17, 1993 ("Indenture"). The Indenture, pursuant to Article 9 and
Article 14 thereof, provides for the execution and delivery of one or more
supplemental indentures in connection with one or more series of Notes. In
accordance therewith, the Company, Subsidiary Guarantors and Trustee entered
into a Supplement dated as of September 12, 1996.
Subsequent to the execution of the Supplement dated September 12, 1996,
and prior to the issuance of any Series C Notes as defined herein, the Company,
its Subsidiary Guarantors and the Trustee, pursuant to authority granted in
Article 9 and Article 14 of the Indenture, hereby enter into this Amended and
Restated Supplement No. 2 to the Indenture, effective as of September 12, 1996.
The Indenture requires that all Subsidiaries formed or acquired
subsequent to the date of the Indenture become Subsidiary Guarantors. The
above-listed entities are subsidiaries of the Company and therefore are
executing this Supplement in order to guarantee the obligations of the Company
under the Series C Notes, and any additional Notes issued under the Indenture.
The Notes created by this Supplement are to consist of Series C 10%
Senior Subordinated Convertible Notes Due 1999 in fully registered form only, in
a total principal amount of up to $14,300,000 as provided herein.
All things necessary to make the Series C 10% Senior Subordinated
Convertible Notes Due 1999, when executed by the Company, authenticated and
delivered by the Trustee hereunder, and duly issued by the Company, the valid
obligations of the Company, and to make this Supplement a valid agreement of the
Company and the Subsidiary Guarantors, in accordance with their and its terms,
have been done.
NOW THEREFORE, for and in consideration of the foregoing, it is
mutually covenanted and agreed, for the benefit of the holders of the Notes, as
follows:
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DEFINITIONS
1.1 Terms Defined in Original Indenture. Except as otherwise set forth
in this Supplement, terms defined in the Indenture shall have the same meanings
when used in this Supplement.
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1.2 Other Definitions.
"Series C Notes" shall mean any one or some or all, as the
case may be, of the securities designated in Section 2.1 of this Supplement and
authenticated and delivered under Section 2.2 of this Supplement.
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SERIES C 10% SENIOR SUBORDINATED CONVERTIBLE NOTES DUE 1999
2.1 Designation. There is hereby authorized to be issued, and shall be
issued under the Indenture, a series of Notes in an aggregate principal amount
not to exceed $14,300,000, which shall bear the title Series C 10% Senior
Subordinated Convertible Notes Due 1999. Such Series C Notes shall be subject to
and secured by the Indenture, this Supplement and the Guarantees.
2.2 Authentication. The Trustee, upon the execution and delivery of
this Supplement, the execution and delivery to it by the Company of the Series C
Notes, as hereinabove provided, and compliance with Articles 9 and 14 of the
Indenture and without any further action on the part of the Company, shall from
time to time authenticate Series C Notes which shall not, in the aggregate,
exceed the principal amount of $14,300,000, and shall deliver them to or upon
the written order of the Company.
2.3 Form of Series C Notes. The Series C Notes, which shall be
registered Notes and the Trustee's certificate of authentication shall be in
substantially the forms set forth in this Article, with such appropriate
insertions, omissions, substitutions and other variations as are required or
permitted by the Indenture (including such variations as may be required to
reflect the terms of any subseries of Notes) and may have such letters, numbers
or other marks of identification and such legends or endorsements placed
thereon, as may be required to comply with the rules of any securities exchange,
or as may, consistently herewith, be determined by the officers executing the
Series C Notes, as evidenced by their execution of the Series C Notes.
The definitive Series C Notes shall be printed, lithographed, engraved
or produced by any combination of these methods on steel engraved borders or may
be produced in any other manner permitted by the rules of any securities
exchange, all as determined by the officers executing the Series C Notes, as
evidenced by their execution of the Series C Notes.
2.4 Terms. Forthwith upon the execution and delivery of this
Supplement, or from time to time thereafter, Series C Notes up to a maximum
aggregate principal amount of $14,300,000 may be executed by the Company and
delivered to the Trustee for authentication, and shall thereupon be
authenticated and delivered by the Trustee upon Company order and compliance
with Articles 9 and 14 of the Indenture, without any further action by the
Company. The Series C Notes issued hereunder will rank pari passu with the
Initial Notes and any Notes issued by the Company in the future.
The Series C Notes Stated Maturity shall be September 15, 1999 and they
shall bear interest at the rate of 10% per annum from their Date of Issue or
from the most recent Interest Payment Date to which interest has been paid or
duly provided for, as the case may be, payable semiannually on September 15 and
March 15, commencing March 15, 1997, until the principal thereof is paid or duly
provided for. The Holder of any Series C Note at the close of business on any
record date (as hereinafter defined) with respect to any Interest Payment Date
shall be entitled to receive the interest payable thereon on such Interest
Payment Date notwithstanding the cancellation of such Note upon any transfer or
exchange thereof subsequent to such record date and prior to such Interest
Payment Date. With respect to the payment of interest in default, interest shall
be paid to the Person in whose name the Series C Note is registered, on a
special record date, established at the
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election of the Company and which shall be not less than five Business Days
preceding the date of payment of such defaulted interest, established for such
purpose by notice given by, or on behalf of, the Company to the Holders not less
than ten Business Days preceding the date so established. The term "record date"
as used herein with respect to any Interest Payment Date (other than any date on
which defaulted interest is paid) shall mean the September 1 or March 1 (or if
that day is not a Business Day, the next preceding Business Day) next preceding
such Interest Payment Date.
The principal (and premium, if any) of and interest on the Series C
Notes shall be payable at the office or agency of the Company in Phoenix,
Arizona; provided, however, that interest may be payable at the option of the
Company by check mailed to the address of the person entitled thereto as such
address shall appear on the Note Register.
The Series C Notes shall be subordinated in right of payment to Senior
Indebtedness of the Company as provided in the Indenture.
The Series C Notes shall be senior in right of payment to all
Subordinated Indebtedness of the Company.
Each individual holder of Series C Notes will be entitled, at such
holder's option, at any time following the issuance of the Series C Notes
through the close of business on the final maturity date of the Series C Notes,
subject to prior redemption, to fix a conversion price equal to 103% of the
average closing price of the Common Stock as quoted on the New York Stock
Exchange ("NYSE") for the ten (10) consecutive trading days preceding the date
on which the conversion price is fixed by notice to the Company from the
Noteholder (the "Conversion Price"). Notice fixing the Conversion Price must be
given to the Company in writing, by fax and/or registered letter.
Subsequent to fixing the Conversion Price as outlined above, each
individual holder of Series C Notes will be entitled, at such holder's option,
at any time through the close of business on the final maturity date of the
Series C Notes, subject to prior redemption, to convert the Series C Notes in
whole, and all accrued interest payable thereon, into Common Stock of the
Company, at the Conversion Price. Notice of the conversion must be given in
writing to the Company and the holder's Series C Note must be tendered to the
Company with the information completed as provided on the form attached to the
Series C Note.
No fractional shares will be issued. In lieu thereof, the Company will
pay cash for fractional share amounts equal to the fair market value of the
Common Stock as quoted as the closing price on the NYSE on the date of
conversion.
If any Notes not called for redemption are converted after a record
date for the payment of interest and prior to the next succeeding interest
payment date, such Notes must be accompanied by funds equal to the interest
payable on such succeeding interest payment date on the principal amount so
converted. No such payment will be required if the Company exercises its right
to such Notes on a redemption date that is an interest payment date.
In the case of Notes called for redemption, conversion rights will
expire at the close of business on the business day preceding the day fixed for
redemption unless the Company defaults in payment of the redemption price.
The Conversion Price is subject to adjustment upon the occurrence of
certain events, including: (i) the issuance of Common Stock as a dividend or
distribution on Common Stock of the Company; (ii) the issuance of Common Stock
pursuant to a stock split; (iii) the issuance to all holders of Common Stock of
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rights or warrants to purchase Common Stock; and (iv) other subdivisions and
combinations of the Common Stock, or other changes affecting the outstanding
Common Stock of the Company as a class without the Company's receipt of
consideration.
If not earlier converted, the Notes are redeemable at the option of the
Company in whole or in part on a pro rata basis, at par value plus accrued
interest payable through the redemption date, upon thirty (30) days' written
notice to the Noteholders in accordance with the following: (i) from September
12, 1996 until June 15, 1997, the Notes may be redeemed by the Company after the
closing price of the Company's Common Stock as quoted on the NYSE has equaled or
exceeded $25.00 for any ten (10) consecutive trading days, and (ii) after June
15, 1997, the Notes may be redeemed by the Company at any time at par value plus
all accrued interest payable through the date of redemption.
The Noteholders will have the right to convert their Notes at any time
until the close of business on the date fixed for redemption. The redemption
price will be paid within forty-eight (48) hours of the redemption date. If less
than all of the Notes are to be redeemed in the case of any redemption by the
Company, the Trustee shall select the Notes or the portion thereof to be
redeemed, by lot or by any other method the Trustee shall deem fair and
reasonable.
2.5 Denominations. The Series C Notes may be issued in denominations of
$1,000 and any multiple thereof.
2.6 Form of Series C Note.
THIS NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED,
OR THE SECURITIES LAWS OF ANY STATE AND MAY NOT BE SOLD, PLEDGED, HYPOTHECATED
OR OTHERWISE TRANSFERRED, EXCEPT UPON DELIVERY TO THE COMPANY OF AN OPINION OF
COUNSEL, SATISFACTORY TO THE COMPANY, THAT AN EXEMPTION FROM SUCH REGISTRATION
IS AVAILABLE AND THAT SUCH TRANSFER WILL NOT RESULT IN ANY VIOLATION OF THE LAW.
SIMULA, INC.
SERIES C 10% SENIOR SUBORDINATED CONVERTIBLE NOTE
DUE 1999
$_____________ No._____________
SIMULA, INC., a corporation duly organized and existing under the laws
of the State of Arizona (herein called the "Company," which term includes any
successor corporation under the Indenture hereinafter referred to), for value
received, hereby promises to pay to ______________, or registered assigns, the
principal sum of ____________________ DOLLARS on September 15, 1999, and to pay
interest thereon from the later of the date of authentication and issuance of
this Series C Note under the Supplement ("Date of Issue") or the most recent
Interest Payment Date to which interest has been paid or duly provided for, as
the case may be, semiannually on September 15 and March 15 in each year,
commencing March 15, 1997 at the rate of 10% per annum, until the principal
hereof is paid or duly provided for. Interest will be calculated on the basis of
a 360-day year comprised of twelve (12) 30-day months, using the actual number
of days elapsed. The interest so payable, and punctually paid or duly provided
for, on any Interest Payment Date will, subject to certain exceptions as
provided in the Indenture hereinafter referred to, be paid to the person in
whose name this Series C Note is registered at the close of business on
September 1 or March 1 (or if such day is not a Business Day then at the close
of business on the Business Day next preceding such day) next preceding such
Interest
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Payment Date. Payments of the principal of (and premium, if any) and interest on
this Series C Note will be made at the office or agency of the Company
maintained for that purpose in Phoenix, Arizona, or in such other office or
agency as may be established by the Company pursuant to said Indenture, 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 (subject to
collection) by check mailed to the address of the person entitled thereto as
such address shall appear on the Note Register.
This Series C Note is one of a duly authorized issue of the Series C
Notes of the Company designated as its Series C 10% Senior Subordinated
Convertible Notes Due 1999 (herein called the "Series C Notes"), limited in
aggregate principal amount to $14,300,000 issued and to be issued under an
Indenture, dated as of December 17, 1993, and Supplement, dated as of September
12, 1996 (hereinafter together called the "Indenture"), between the Company and
Bank One Trust Company, NA, as Trustee (herein called the "Trustee," which term
includes any successor Trustee under the Indenture), to which Indenture and all
indentures supplemental thereto reference is hereby made for a statement of the
respective rights thereunder of the Company, the Trustee and the Holders of the
Notes, and the terms upon which the Notes are, and are to be, authenticated and
delivered. The term "Note" or "Notes" as used herein shall refer to the Series C
Notes, the Initial Notes and Notes hereafter issued pursuant to the Indenture.
The Indenture 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 of the Notes under the Indenture at any
time by the Company with the consent of the Holders of a majority in aggregate
principal amount of the Notes at the time Outstanding (as defined in the
Indenture). The Indenture also contains provisions permitting the Holders of a
majority in aggregate principal amount of the Notes at the time outstanding, on
behalf of the Holders of all the Notes, to waive compliance by the Company with
certain provisions of the Indenture and certain past defaults under the
Indenture and their consequences. Any such consent or waiver by the Holder of
this Series C Note shall be conclusive and binding upon such Holder and upon all
future Holders of this Series C Note and of any Series C Note issued upon the
registration of transfer hereof or in exchange therefor or in lieu hereof,
whether or not notation of such consent or waiver is made upon this Series C
Note.
No reference herein to the Indenture and no provisions of this Series C
Note or of the Indenture shall alter or impair the obligation of the Company,
which is absolute and unconditional, to pay the principal of (and premium, if
any) and interest on this Series C Note at the times, places and rate, and in
the coin and currency, herein prescribed.
As provided in the Indenture, and subject to certain limitations
therein set forth, this Series C Note is transferable on the Note Register of
the Company, upon surrender of this Series C Note for registration of transfer
at the office or agency of the Company to be maintained for that purpose in
Columbus, Ohio, or at such other office or agency as may be established by the
Company for such purpose pursuant to the Indenture, duly endorsed by, or
accompanied by written instrument of transfer in form satisfactory to the
Company and the Note Registrar duly executed by the Holder hereof or his
attorney duly authorized in writing, and thereupon one or more new Series C
Notes, of authorized denominations and for the same aggregate principal amount,
will be issued to the designated transferee or transferees. The Company has
appointed the Trustee as the initial Note Registrar and Paying Agent for the
Series C Notes.
Each individual holder of Notes will be entitled, at such holder's
option, at any time following the issuance of the Notes through the close of
business on the final maturity date of the Notes, subject to prior redemption,
to fix a conversion price equal to 103% of the average closing price of the
Common Stock as quoted on the New York Stock Exchange ("NYSE") for the ten (10)
consecutive trading days preceding the date on which the conversion price is
fixed by notice to the Company from the Noteholder (the "Conversion
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Price"). Notice fixing the Conversion Price must be given to the Company in
writing, by fax and/or registered letter.
Subsequent to fixing the Conversion Price as outlined above, each
individual holder of Notes will be entitled, at such holder's option, at any
time through the close of business on the final maturity date of the Notes,
subject to prior redemption, to convert the Notes in whole, and all accrued
interest payable thereon, into Common Stock of the Company, at the Conversion
Price. Notice of the conversion must be given in writing to the Company and this
Note must be tendered to the Company with the information completed as provided
on the form attached to this Note.
No fractional shares will be issued. In lieu thereof, the Company will
pay cash for fractional share amounts equal to the fair market value of the
Common Stock as quoted as the closing bid price on the NYSE on the date of
conversion.
If any Notes not called for redemption are converted after a record
date for the payment of interest and prior to the next succeeding interest
payment date, such Notes must be accompanied by funds equal to the interest
payable on such succeeding interest payment date on the principal amount so
converted. No such payment will be required if the Company exercises its right
to such Notes on a redemption date that is an interest payment date.
In the case of Notes called for redemption, conversion rights will
expire at the close of business on the business day preceding the day fixed for
redemption unless the Company defaults in payment of the redemption price.
The Conversion Price is subject to adjustment in order to preserve the
economics of the original conversion rights upon the occurrence of certain
events, including: (i) the issuance of Common Stock as a dividend or
distribution on Common Stock of the Company; (ii) the issuance of Common Stock
pursuant to a stock split; (iii) the issuance to all holders of Common Stock of
rights or warrants to purchase Common Stock; and (iv) other subdivisions and
combinations of the Common Stock, or other changes affecting the outstanding
Common Stock of the Company as a class without the Company's receipt of
consideration.
If not earlier converted, the Notes are redeemable at the option of the
Company in whole or in part on a pro rata basis, at par value plus accrued
interest payable through the redemption date, upon thirty (30) days written
notice to the Noteholders in accordance with the following: (i) from the date of
this Note until June 15, 1997, the Notes may be redeemed by the Company after
the closing price of the Company's Common Stock as quoted on the NYSE has
equaled or exceeded $25.00 for any ten (10) consecutive trading days, and (ii)
on or after June 15, 1997, the Company may redeem the Notes at any time at par
value plus all accrued interest payable through the date of redemption.
The Noteholders will have the right to convert their Notes at any time
until the close of business on the date fixed for redemption. The redemption
price will be paid within forty-eight (48) hours of the redemption date. If less
than all of the Series C Notes are to be redeemed in the case of any redemption
by the Company, the Trustee shall select Series C Notes or the portion thereof
to be redeemed, by lot or by any other method the Trustee shall deem fair and
reasonable.
Upon a Change of Control (as defined in Section 10.16 of the
Indenture), the Company will be required to offer to purchase all of the Notes
at 101% of the principal amount thereof, plus accrued interest, if any, to the
date of purchase. In addition, in the event that the Company sells assets, under
certain circumstances, as described in Section 10.11 of the Indenture, the
Company will be required to make an offer to purchase a certain principal amount
of the Notes, on a pro rata basis of all Notes tendered, at 100% of the
principal amount thereof, plus accrued interest, if any, to the date of
purchase.
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If an Event of Default as defined in the Indenture shall occur and be
continuing, the principal of all or a portion of the Notes may become or be
declared due and payable in the manner and with the effect provided in the
Indenture. If an Event of Default on the Notes shall occur, a default rate of
interest in the amount of 15% per annum shall accrue on the indebtedness
evidenced by the Notes from such date for such period of time until the default
is cured.
The Series C Notes are issuable only in registered form, without
coupons, in denominations of $1,000. Series C Notes are exchangeable for a like
aggregate principal amount of Series C Notes of a different authorized
denomination, as requested by the Holder surrendering the same.
No service charge shall be made for any such transfer or exchange, but
the Company may require payment of a sum sufficient to cover any tax or other
governmental charge payable in connection therewith.
The Company, the Trustee and any agent of the Company or the Trustee
may treat the person in whose name this Series C Note is registered as the owner
hereof for all purposes, whether or not this Series C Note be overdue, and
neither the Company, the Trustee, nor any such agent shall be affected by notice
to the contrary.
This Series C Note shall not be valid or become obligatory for any
purpose until the certificate of authentication hereof shall have been manually
signed by the Trustee under the Indenture.
IN WITNESS WHEREOF, SIMULA, INC. has caused this Series C Note to be
signed in its name by the manual or facsimile signature of its President and
attested by the manual or facsimile signature of its Secretary.
Dated: September 12, 1996 (Issue Date)
SIMULA, INC.
By:/s/Donald Townsend
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Donald Townsend, President
ATTEST:
/s/Sean K. Nolen
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Sean K. Nolen, Treasurer
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Series C Notes referred to within the mentioned Indenture.
BANK ONE TRUST COMPANY, NA
as Trustee
By:
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Authorized Representative
Noteholder's Address:
Tax ID Number:
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GUARANTEE
The Subsidiary Guarantors (as defined in the Indenture), jointly and
severally, have unconditionally guaranteed the due and punctual payment of the
principal of, premium, if any, and interest on the Notes, and all other amounts
due and payable under the Indenture and the Notes by the Company, whether at
maturity, acceleration, redemption, repurchase or otherwise, including, without
limitation, the due and punctual payment of interest on the overdue principal
of, premium, if any, and interest on the Notes, to the extent lawful.
The obligations of the Subsidiary Guarantors pursuant to the Guarantee
are subject to the terms and limitations set forth in Article 12 of the
Indenture, and reference is made thereto for the precise terms of the Guarantee.
SUBSIDIARY GUARANTORS
SIMULA GOVERNMENT PRODUCTS, INC., an Arizona corporation INTAERO, INC., an Arizona corporation
By: /s/Sean K. Nolen By: /s/Sean K. Nolen
Its Assistant Treasurer Its Assistant Treasurer
AIRLINE INTERIORS, INC., an Arizona corporation COACH AND CAR EQUIPMENT CORPORATION,
an Arizona corporation
By: /s/Sean K. Nolen By: /s/Sean K. Nolen
Its Assistant Treasurer Its Assistant Treasurer
ARTCRAFT INDUSTRIES CORP., an Arizona corporation SIMULA AUTOMOTIVE SAFETY DEVICES, INC.,
an Arizona corporation
By: /s/Sean K. Nolen By: /s/Sean K. Nolen
Its Assistant Treasurer Its Assistant Treasurer
SAFETY EQUIPMENT, INC., an Arizona corporation SEDONA SCIENTIFIC, INC., an Arizona corporation
By: /s/Sean K. Nolen By: /s/Sean K. Nolen
Its Assistant Treasurer Its Assistant Treasurer
INTERNATIONAL CENTER FOR SAFETY EDUCATION, INC., VIATECH, INC., a Delaware corporation
an Arizona corporation
By: /s/Sean K. Nolen By: /s/Sean K. Nolen
Its Assistant Treasurer Its Assistant Treasurer
The following abbreviations when used in the inscription of the face of
this certificate shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenants in common UNIF GIFT MIN ACT ______________________ Custodian ___________________
TEN ENT - as tenants by the entireties (Cust) (Minor)
JT TEN - as joint tenants with right of Act ________________________________________________
survivorship and not as tenants (State)
in common
COM PROP - as community property UNIF TRF MIN ACT _______________________ Custodian (until age ________)
_______________________ under Uniform Transfers
(Minor)
to Minors Act _______________________________________
(State)
Additional abbreviations may also be used though not in the above list.
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ASSIGNMENT FORM
To assign this Series C Note, fill in the form below:
I or we assign and transfer this Series C Note to:
(INSERT ASSIGNEE'S SOCIAL SECURITY OR TAX IDENTIFICATION NO.)
________________________________________________________________________________
________________________________________________________________________________
(Print or type assignee's name, address and zip code)
and irrevocably appoint ____________________________________ as agent to
transfer this Series C Note on the books of the Company. The agent may
substitute another to act for him.
Date:________________________ Your Signature:______________________________
(Sign exactly as your name appears on the other side of this Note)
Signature Guarantee:____________________________________________________________
By___________________________________
The signature should be guaranteed by an eligible guarantor institution (a bank,
stockbroker, savings and loan association or credit union with membership in an
approved signature guarantee medallion program) pursuant to Rule 17AD-15 of the
Securities Exchange Act of 1934.
OPTION OF HOLDER TO ELECT PURCHASE OR CONVERSION
If you want to elect to have this Series C Note purchased by the
Company pursuant to Section 10.11 or Section 10.16 of the Indenture or convert
this Note to Common Stock pursuant to the Series C Supplemental Indenture, check
the appropriate box:
Section 10.11 [ ] Section 10.16 [ ]
Conversion [ ]
If you want to have only part of this Series C Note purchased or
converted by the Company, state the amount (in multiples of $1,000):
$__________________________
Date:________________________ Your Signature:__________________________________
(Sign exactly as your name appears on the other side of this Note)
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2.7 Interest Rate Calculation. Pursuant to Section 9.1 of the
Indenture, the following sentence is added to the end of the second paragraph of
Section 3.1 of the Indenture: "Interest will be calculated on the basis of a
360-day year comprised of twelve (12) 30-day months, using the actual number of
days elapsed.
2.8 Supplemental Indentures Without Consent of Holders. Section 9.1 of
the Indenture is hereby amended to correct an ambiguity with respect to the
issuance of Additional Series of Notes pursuant to Article 14 of the Indenture.
A new subparagraph 9.1(7) shall be added to read: "(7) to provide for the
issuance of additional Notes pursuant to Article 14 and to set the condition,
limitations, and restrictions on the authorized amount, terms or purposes of
issue, authentication and delivery of those Notes."
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COVENANTS
3.1 Subsidiary Guarantors. Each Subsidiary represents that it was
incorporated and became a Subsidiary on or after December 17, 1993. Each
Subsidiary is entering into this Supplement to affirm and agree to being
Subsidiary Guarantors with respect to the Series C Notes and this Supplement,
pursuant to Article 12 of the Indenture. By their execution of this Supplement,
each Subsidiary:
(a) Covenants and agrees to, and shall comply with, all the terms
and conditions of the Indenture, as supplemented by this Supplement, pertaining
to Subsidiary Guarantors.
(b) Covenants and agrees, jointly and severally, to guarantee all
Notes, including, but not limited to, the Series C Notes, in accordance with,
and to the extent provided in, Articles 12 and 13 of the Indenture and this
Supplement.
(c) Covenants and agrees to perform all obligations required of a
Subsidiary Guarantor, as provided in the Indenture and this Supplement.
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MISCELLANEOUS
4.1 Governing Law. This Supplement and each Series C Note shall be
deemed to be contracts made under the internal laws of the State of Arizona and
for all purposes shall be construed in accordance with the internal laws of said
State.
4.2 Counterparts. This Supplement may be executed in any number of
counterparts and each of such counterparts shall for all purposes be deemed to
be an original, and all such counterparts shall together constitute but one and
the same instrument.
10
13
IN WITNESS WHEREOF, SIMULA, INC., SIMULA GOVERNMENT PRODUCTS, INC.
INTAERO, INC., AIRLINE INTERIORS, INC., COACH AND CAR EQUIPMENT CORPORATION,
ARTCRAFT INDUSTRIES CORP., SIMULA AUTOMOTIVE SAFETY DEVICES, INC., SAFETY
EQUIPMENT, INC., SEDONA SCIENTIFIC, INC., INTERNATIONAL CENTER FOR SAFETY
EDUCATION, INC. and VIATECH, INC. have each caused this Supplement to be signed
in their respective corporate names by their respective authorized officers and
Bank One Trust Company, NA, Trustee, has caused this Supplemental Indenture to
be executed in its corporate name by one of its authorized officers, all as of
the date and year first above written.
SIMULA, INC., an Arizona corporation
By /s/Bradley P. Forst
----------------------------------------------
Bradley P. Forst, Vice President and Secretary
BANK ONE TRUST COMPANY, NA
as Trustee
By /s/Ted Kravits
----------------------------------------------
Trust Officer
11
14
SUBSIDIARY GUARANTORS:
SIMULA GOVERNMENT PRODUCTS, INC.,
an Arizona corporation
By /s/Sean K. Nolen
---------------------------------------------------
Sean K. Nolen, Assistant Treasurer
INTAERO, INC., an Arizona corporation
By /s/Sean K. Nolen
---------------------------------------------------
Sean K. Nolen, Assistant Treasurer
AIRLINE INTERIORS, INC., an Arizona corporation
By /s/Sean K. Nolen
---------------------------------------------------
Sean K. Nolen, Assistant Treasurer
COACH AND CAR EQUIPMENT CORPORATION,
an Arizona corporation
By /s/Sean K. Nolen
---------------------------------------------------
Sean K. Nolen, Assistant Treasurer
ARTCRAFT INDUSTRIES CORP.,
an Arizona corporation
By /s/Sean K. Nolen
---------------------------------------------------
Sean K. Nolen, Assistant Treasurer
12
15
SIMULA AUTOMOTIVE SAFETY DEVICES, INC.
an Arizona corporation
By /s/ Sean K. Nolen
---------------------------------------------------
Sean K. Nolen, Assistant Treasurer
SAFETY EQUIPMENT, INC., an Arizona corporation
By /s/ Sean K. Nolen
---------------------------------------------------
Sean K. Nolen, Assistant Treasurer
SEDONA SCIENTIFIC, INC., an Arizona corporation
By /s/ Sean K. Nolen
---------------------------------------------------
Sean K. Nolen, Assistant Treasurer
INTERNATIONAL CENTER FOR SAFETY
EDUCATION, INC., an Arizona corporation
By /s/ Sean K. Nolen
---------------------------------------------------
Sean K. Nolen, Assistant Treasurer
VIATECH, INC., a Delaware corporation
By /s/ Sean K. Nolen
---------------------------------------------------
Sean K. Nolen, Assistant Treasurer
13
16
STATE OF ARIZONA )
) ss.
County of MARICOPA )
On this 12th day of September, 1996, before me, a Notary Public in and
for said county and state, personally appeared Bradley P. Forst, to me
personally known and known to me to be the same person who executed the within
and foregoing instrument, who, being by me duly sworn, did depose, acknowledge
and say that he is the Vice President and Secretary of SIMULA, INC., one of the
corporations described in and which executed the foregoing instrument; that said
instrument was executed on behalf of said corporation by authority of its Board
of Directors; and he acknowledged the execution of said instrument to be the
voluntary act and deed of said corporation by it voluntarily executed.
IN WITNESS WHEREOF, I have hereunto set my hand and official seal this
12th day of September, 1996.
/s/
-------------------
Notary Public
(Seal)
STATE OF )
) ss.
County of )
On this _____ day of ______________________, 1996, before me, a Notary
Public in and for said county and state, personally appeared
___________________________ to me personally known and known to me to be the
same person who executed the within and foregoing instrument, who, being by me
duly sworn, did depose, acknowledge and say: That he/she is a Trust Officer of
BANK ONE TRUST COMPANY, NA, one of the corporations described in and which
executed the foregoing instrument; that said instrument was executed on behalf
of said corporation by authority of its Board of Directors; and he/she
acknowledged the execution of said instrument to be the voluntary act and deed
of said corporation by it voluntarily executed.
IN WITNESS WHEREOF, I have hereunto set my hand and official seal this
____________ day of _______________________________, 1996.
___________________________
Notary Public
(Seal)
14
17
STATE OF ARIZONA )
) ss.
County of MARICOPA )
On this 12th day of September, 1996, before me, a Notary Public in and
for said county and state, personally appeared Sean K. Nolen to me personally
known and known to me to be the same person who executed the within and
foregoing instrument, who, being by me duly sworn, did depose, acknowledge and
say that he is the Assistant Treasurer of SIMULA GOVERNMENT PRODUCTS, INC., one
of the corporations described in and which executed the foregoing instrument;
that said instrument was executed on behalf of said corporation by authority of
its Board of Directors; and he acknowledged the execution of said instrument to
be the voluntary act and deed of said corporation by it voluntarily executed.
IN WITNESS WHEREOF, I have hereunto set my hand and official seal this
12th day of September, 1996.
/s/
-------------------
Notary Public
(Seal)
STATE OF ARIZONA )
) ss.
County of MARICOPA )
On this 12th day of September, 1996, before me, a Notary Public in and
for said county and state, personally appeared Sean K. Nolen to me personally
known and known to me to be the same person who executed the within and
foregoing instrument, who, being by me duly sworn, did depose, acknowledge and
say that he is the Assistant Treasurer of INTAERO, INC., one of the corporations
described in and which executed the foregoing instrument; that said instrument
was executed on behalf of said corporation by authority of its Board of
Directors; and he acknowledged the execution of said instrument to be the
voluntary act and deed of said corporation by it voluntarily executed.
IN WITNESS WHEREOF, I have hereunto set my hand and official seal this
12th day of September, 1996.
/s/
-------------------
Notary Public
(Seal)
15
18
STATE OF ARIZONA )
) ss.
County of MARICOPA )
On this 12th day of September, 1996, before me, a Notary Public in and
for said county and state, personally appeared Sean K. Nolen to me personally
known and known to me to be the same person who executed the within and
foregoing instrument, who, being by me duly sworn, did depose, acknowledge and
say that he is the Assistant Treasurer of AIRLINE INTERIORS, INC., one of the
corporations described in and which executed the foregoing instrument; that said
instrument was executed on behalf of said corporation by authority of its Board
of Directors; and he acknowledged the execution of said instrument to be the
voluntary act and deed of said corporation by it voluntarily executed.
IN WITNESS WHEREOF, I have hereunto set my hand and official seal this
12th day of September, 1996.
/s/
-------------------
Notary Public
(Seal)
STATE OF ARIZONA )
) ss.
County of MARICOPA )
On this 12th day of September, 1996, before me, a Notary Public in and
for said county and state, personally appeared Sean K. Nolen to me personally
known and known to me to be the same person who executed the within and
foregoing instrument, who, being by me duly sworn, did depose, acknowledge and
say that he is the Assistant Treasurer of COACH AND CAR EQUIPMENT CORPORATION,
one of the corporations described in and which executed the foregoing
instrument; that said instrument was executed on behalf of said corporation by
authority of its Board of Directors; and he acknowledged the execution of said
instrument to be the voluntary act and deed of said corporation by it
voluntarily executed.
IN WITNESS WHEREOF, I have hereunto set my hand and official seal this
12th day of September, 1996.
/s/
-------------------
Notary Public
(Seal)
16
19
STATE OF ARIZONA )
) ss.
County of MARICOPA )
On this 12th day of September, 1996, before me, a Notary Public in and
for said county and state, personally appeared Sean K. Nolen to me personally
known and known to me to be the same person who executed the within and
foregoing instrument, who, being by me duly sworn, did depose, acknowledge and
say that he is the Assistant Treasurer of ARTCRAFT INDUSTRIES CORP., one of the
corporations described in and which executed the foregoing instrument; that said
instrument was executed on behalf of said corporation by authority of its Board
of Directors; and he acknowledged the execution of said instrument to be the
voluntary act and deed of said corporation by it voluntarily executed.
IN WITNESS WHEREOF, I have hereunto set my hand and official seal this
12th day of September, 1996.
/s/
-------------------
Notary Public
(Seal)
STATE OF ARIZONA )
) ss.
County of MARICOPA )
On this 12th day of September, 1996, before me, a Notary Public in and
for said county and state, personally appeared Sean K. Nolen to me personally
known and known to me to be the same person who executed the within and
foregoing instrument, who, being by me duly sworn, did depose, acknowledge and
say that he is the Assistant Treasurer of SIMULA AUTOMOTIVE SAFETY DEVICES,
INC., one of the corporations described in and which executed the foregoing
instrument; that said instrument was executed on behalf of said corporation by
authority of its Board of Directors; and he acknowledged the execution of said
instrument to be the voluntary act and deed of said corporation by it
voluntarily executed.
IN WITNESS WHEREOF, I have hereunto set my hand and official seal this
12th day of September, 1996.
/s/
-------------------
Notary Public
(Seal)
17
20
STATE OF ARIZONA )
) ss.
County of MARICOPA )
On this 12th day of September, 1996, before me, a Notary Public in and
for said county and state, personally appeared Sean K. Nolen to me personally
known and known to me to be the same person who executed the within and
foregoing instrument, who, being by me duly sworn, did depose, acknowledge and
say that he is the Assistant Treasurer of SAFETY EQUIPMENT, INC., one of the
corporations described in and which executed the foregoing instrument; that said
instrument was executed on behalf of said corporation by authority of its Board
of Directors; and he acknowledged the execution of said instrument to be the
voluntary act and deed of said corporation by it voluntarily executed.
IN WITNESS WHEREOF, I have hereunto set my hand and official seal this
12th day of September, 1996.
/s/
-------------------
Notary Public
(Seal)
STATE OF ARIZONA )
) ss.
County of MARICOPA )
On this 12th day of September, 1996, before me, a Notary Public in and
for said county and state, personally appeared Sean K. Nolen to me personally
known and known to me to be the same person who executed the within and
foregoing instrument, who, being by me duly sworn, did depose, acknowledge and
say that he is the Assistant Treasurer of SEDONA SCIENTIFIC, INC., one of the
corporations described in and which executed the foregoing instrument; that said
instrument was executed on behalf of said corporation by authority of its Board
of Directors; and he acknowledged the execution of said instrument to be the
voluntary act and deed of said corporation by it voluntarily executed.
IN WITNESS WHEREOF, I have hereunto set my hand and official seal this
12th day of September, 1996.
/s/
-------------------
Notary Public
(Seal)
18
21
STATE OF ARIZONA )
) ss.
County of MARICOPA )
On this 12th day of September, 1996, before me, a Notary Public in and
for said county and state, personally appeared Sean K. Nolen to me personally
known and known to me to be the same person who executed the within and
foregoing instrument, who, being by me duly sworn, did depose, acknowledge and
say that he is the Assistant Treasurer of INTERNATIONAL CENTER FOR SAFETY
EDUCATION, INC., one of the corporations described in and which executed the
foregoing instrument; that said instrument was executed on behalf of said
corporation by authority of its Board of Directors; and he acknowledged the
execution of said instrument to be the voluntary act and deed of said
corporation by it voluntarily executed.
IN WITNESS WHEREOF, I have hereunto set my hand and official seal this
12th day of September, 1996.
/s/
-------------------
Notary Public
(Seal)
STATE OF ARIZONA )
) ss.
County of MARICOPA )
On this 12th day of September, 1996, before me, a Notary Public in and
for said county and state, personally appeared Sean K. Nolen to me personally
known and known to me to be the same person who executed the within and
foregoing instrument, who, being by me duly sworn, did depose, acknowledge and
say that he is the Assistant Treasurer of VIATECH, INC., one of the corporations
described in and which executed the foregoing instrument; that said instrument
was executed on behalf of said corporation by authority of its Board of
Directors; and he acknowledged the execution of said instrument to be the
voluntary act and deed of said corporation by it voluntarily executed.
IN WITNESS WHEREOF, I have hereunto set my hand and official seal this
12th day of September, 1996.
/s/
-------------------
Notary Public
(Seal)
19