Exhibit 4.1
Execution Copy
AMENDMENT AND SUPPLEMENT NO.
1
TO
THE INDENTURE
AND
THE FIRST SUPPLEMENTAL TRUST
INDENTURE
THIS AMENDMENT AND SUPPLEMENT NO. 1
TO THE INDENTURE AND THE FIRST SUPPLEMENTAL TRUST INDENTURE (this
“Amendment”), dated as of May 1, 2009, is entered
into by and between Environmental Power Corporation, a Delaware
corporation (the “Company”), and Wells Fargo Bank,
National Association organized and existing under the laws of the
United States of America, as trustee (the
“Trustee”).
RECITALS
WHEREAS, the Company and the Trustee
entered into an Indenture for Senior Debt Securities, dated as of
March 1, 2009 (the “Indenture”), providing for the
issuance by the Company from time to time of its senior debt
securities;
WHEREAS, the Company and the Trustee
entered into a First Supplemental Trust Indenture, dated as of
March 1, 2009 (the “Supplemental Indenture”),
providing for the issuance by the Company of up to $53,000,000
aggregate principal amount of its 14% Convertible Notes due
January 1, 2014 (the “2009 Notes”);
WHEREAS, Section 9.01(a) of the
Indenture provides that the Company and the Trustee, without the
consent of the Securityholders, may make any supplement to the
Indenture to cure any ambiguity, defect or inconsistency in the
Indenture;
WHEREAS, Section 9.01(f) of the
Indenture provides that the Company and the Trustee, without the
consent of the Securityholders, may make any supplement to the
Indenture to make any change that does not adversely affect the
rights of any Securityholder in any material respect;
WHEREAS, Section 14.01(a)(1) of
the Supplemental Indenture provides that the Company and the
Trustee, without the consent of the Holders of the 2009 Notes, may
make an amendment to the Supplemental Indenture to cure any
ambiguity, defect or inconsistency in the Supplemental
Indenture;
WHEREAS, Section 14.01(a)(4) of
the Supplemental Indenture provides that the Company and the
Trustee, without the consent of the Holders of the 2009 Notes, may
make an amendment to the Supplemental Indenture to make such
changes or additions as may be necessary or desirable in connection
with the issuance of the 2009 Notes in transactions exempt from the
registration requirements of the Securities Act;
WHEREAS, Section 14.01(a)(7) of
the Supplemental Indenture provides that the Company and the
Trustee, without the consent of the Holders of the 2009 Notes, may
make a modification or amendment to the Supplemental Indenture to
make any change that does not adversely affect the rights of any
Holder of the 2009 Notes in any material respect;
WHEREAS, this Amendment and Supplement will not
make any change that materially adversely affects the rights of any
Holder of the 2009 Notes or any Securityholder in any material
respect;
WHEREAS, the Company desires to
enter into this Amendment and Supplement, and has duly authorized
the execution and delivery of this Amendment and Supplement to
modify the Supplemental Indenture and the Indenture as set forth
herein;
WHEREAS, concurrent with the
execution hereof, the Company has delivered an Officers’
Certificate and has caused its counsel to deliver to the Trustee an
Opinion of Counsel; and
WHEREAS, all conditions and
requirements of the Indenture and the Supplemental Indenture
necessary to make this Amendment and Supplement a valid, binding
and legal instrument in accordance with its terms have been
performed and fulfilled by the parties hereto and the execution and
delivery thereof have been in all respects duly authorized by the
parties hereto.
NOW, THEREFORE:
For and in consideration of the
mutual premises and agreements herein contained, the Company and
the Trustee covenant and agree, for the equal and proportionate
benefit of all Holders of the 2009 Notes, as follows:
ARTICLE I
AMENDMENTS TO THE SUPPLEMENTAL
INDENTURE
SECTION 1.1. DEFINITIONS.
(a) Capitalized terms used herein
and not otherwise defined shall have the respective meanings
assigned thereto in the Indenture or the Supplemental Indenture, as
applicable.
(b) The following definitions are
hereby added to Section 1.01 of the Supplemental Indenture in
appropriate alphabetical position:
“Private Placement
Legend” means the legend set forth in
Section 2.03(e)(2).
“Resale Restriction
Termination Date” means the date which is one year after the
later of the Issue Date for the Restricted Certificate in question
and the last date on which the Company or any Affiliate was the
owner of the 2009 Note represented by the Restricted
Certificate.
“Restricted Certificate”
means a certificate representing 2009 Notes that are issued in
definitive registered form in any transaction exempt from the
registration requirements of the Securities Act by virtue of
Section 4(2) thereof and/or Regulation D promulgated
thereunder (and which, therefore, constitute “restricted
securities” within the meaning of Rule 144) and which bear
the Private Placement Legend (as defined in
Section 2.03(e)(2)).
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“Rule 144” means Rule 144
promulgated under the Securities Act.
SECTION 1.2. GLOBAL SECURITIES AND
TRANSFERS OF INTERESTS THEREIN.
(a) Section 2.01(a) of the
Supplemental Indenture is hereby amended as follows:
(i) to change the date appearing in
the first sentence thereof from “March 12, 2009” to
“March 13, 2009.”
(ii) to add the following sentence
to the end thereof: “Notwithstanding the foregoing, any 2009
Notes issued pursuant to Section 2.03(e)(1) hereof shall be
issued as Restricted Certificates, and not as Global
Certificates.”
(b) Section 2.03 of the
Supplemental Indenture is hereby amended by adding a new subsection
(e) thereto, to read in its entirety as follows:
“(e) Provisions Relating to
Restricted Certificates. Notwithstanding anything in this
Section 2.03 to the contrary, the following provisions will
apply to the Restricted Certificates:
(1) In General. 2009 Notes
may be issued from time to time in transactions exempt from the
registration requirements of the Securities Act by virtue of
Section 4(2) thereof and/or Regulation D promulgated
thereunder. Any 2009 Notes so issued shall be “restricted
securities” within the meaning of Rule 144 and shall be
represented by a Restricted Certificate. In such event, the 2009
Notes so issued shall be issued solely in definitive registered
form. Any Authentication Order for any 2009 Notes so issued shall
indicate that such 2009 Notes shall be represented by a Restricted
Certificate.
(2) Private Placement Legend.
Each Restricted Certificate shall bear a legend substantially to
the following effect (the “Private Placement
Legend”):
“THIS NOTE HAS NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
“SECURITIES ACT”), OR ANY STATE SECURITIES LAWS.
NEITHER THIS NOTE NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE
OFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR
OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS
SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT. THE HOLDER OF THIS
NOTE BY ITS ACCEPTANCE HEREOF AGREES TO OFFER, SELL OR OTHERWISE
TRANSFER SUCH SECURITY, PRIOR TO THE DATE WHICH IS ONE YEAR AFTER
THE LATER OF THE ORIGINAL ISSUE DATE HEREOF AND THE LAST DATE ON
WHICH THE ISSUER OR ANY AFFILIATE OF THE ISSUER WAS THE OWNER OF
THIS NOTE (OR ANY PREDECESSOR OF THIS NOTE) (THE “RESALE
RESTRICTION TERMINATION DATE”) ONLY (A) TO THE ISSUER OR
ANY SUBSIDIARY THEREOF, (B) PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT UNDER THE SECURITIES ACT, OR
(C) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT TO THE
ISSUER’S AND THE TRUSTEE’S RIGHT PRIOR TO ANY SUCH
OFFER, SALE OR TRANSFER (i) PURSUANT TO CLAUSE
(C) PRIOR
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TO THE RESALE RESTRICTION
TERMINATION DATE TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL,
CERTIFICATION AND/OR OTHER INFORMATION SATISFACTORY TO EACH OF
THEM, AND (ii) IN EACH OF THE FOREGOING CASES, TO REQUIRE THAT
A CERTIFICATE OF TRANSFER IN FORM AND SUBSTANCE ACCEPTABLE TO THE
COMPANY AND THE TRUSTEE IS COMPLETED AND DELIVERED BY THE
TRANSFEROR TO THE TRUSTEE. THIS LEGEND WILL BE REMOVED, AND THIS
CERTIFICATE EXCHANGED FOR A BENEFICIAL INTEREST IN A GLOBAL
CERTIFICATE, UPON THE REQUEST OF A HOLDER AFTER THE RESALE
RESTRICTION TERMINATION DATE.”
(2) Transfer and Exchange of a
Restricted Certificate for Beneficial Interests in a Global
Certificate . Subject to Section 2.03(e)(6), a Restricted
Certificate may only be exchanged, in whole or in part, by any
holder thereof for a beneficial interest in a Global Certificate or
transferred to a person who takes delivery thereof in the form of a
beneficial interest in a Global Certificate, and then only if the
exchange or transfer complies with the requirements of
Section 2.03(b) of this Supplemental Indenture and:
(A) Such transfer is pursuant to an
effective registration statement under the Securities Act, and the
holder of the Restricted Certificate so transferred delivers to the
Company a certificate to the effect that such holder has complied
with the prospectus delivery requirements arising under the
Securities Act and the rules and regulations thereunder in
connection with such transfer; or
(B) The following conditions are
met:
(i) if such transfer is after the
Resale Restriction Termination Date, the holder of such Restricted
Certificate proposes to exchange such beneficial interest for a
beneficial interest in a Global Certificate, a certificate from
such holder to the following effect:
“In connection with the
exchange of the holder’s interest in a Restricted Certificate
for a beneficial interest in a Global Certificate in an equal
principal amount, the holder hereby certifies (i) the
beneficial interest is being acquired for the holder’s own
account without transfer, (ii) such exchange has been effected
in compliance with the transfer restrictions applicable to the
Global Certificates and pursuant to and in accordance with the
Securities Act of 1933, as amended (the “ Securities
Act ”), (iii) the restrictions on transfer contained
in the Supplemental Indenture and the Private Placement Legend are
not required in order to maintain compliance with the Securities
Act and (iv) the beneficial interest in a Global Certificate
is being acquired in compliance with any applicable blue sky
securities laws of any state of the United
States.”
- or -
(ii) if the holder of such
Restricted Certificate proposes to transfer an interest therein to
a Person who shall take delivery thereof in the form of a
beneficial interest in a Global Certificate, a certificate from
such holder to the following effect:
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“The transfer is being
effected pursuant to and in accordance with Rule 144 under the
Securities Act and in compliance with the transfer restrictions
contained in the Supplemental Indenture and any applicable blue sky
securities laws of any state of the United States, and the
restrictions on transfer contained in the Supplemental Indenture
and the Private Placement Legend are not required in order to
maintain compliance with the Securities Act. The holder is not, and
has not been within a period of three months prior to such
transfer, an “affiliate” of the Company within the
meaning of Rule 144, and a period of at least six months has
elapsed since the holder acquired the transferred beneficial
interest from the Company or any affiliate of the Company. Upon
consummation of the proposed transfer in accordance with the terms
of the Supplemental Indenture, the transferred beneficial interest
will no longer be subject to the restrictions on transfer
enumerated in the Private Placement Legend printed on the
Restricted Certificate and in the Supplemental
Indenture.”
and, in each such case set forth in
this subsection (B), if the Company or the Registrar so requests or
if the Applicable Procedures so require, an opinion of counsel in
form and substance acceptable to the Company to the effect that
such exchange or transfer is in compliance with the Securities Act
and that the restrictions on transfer contained herein and in the
Private Placement Legend are no longer required in order to
maintain compliance with the Securities Act.
(3) Substitution of Beneficial
Interest in Global Certificate for Restricted Certificate . In
the event that, following the Resale Restriction Termination Date,
the Company determines that the holder of a Restricted Certificate
is entitled to have the legend removed therefrom, the Company may
request the holder to surrender such Restricted Certificate for
cancellation and exchange against delivery of a new Global
Certificate to the Trustee, or an adjustment to an existing Global
Certificate to reflect the transfer of interests in such Restricted
Certificate to such Global Certificate in accordance with
Section 2.03(c) hereof, in each case with the holder’s
beneficial interest therein registered by the Trustee in its
capacity as Registrar.
(4) Shares of Common Stock Issued
Upon Conversion of 2009 Notes Represented by a Restricted
Certificate. In the event of any conversion of any 2009 Notes
represented by a Restricted Certificate in accordance with the
provisions of Article III hereof, any such shares of Common Stock
issued upon such conversion shall be “restricted
securities” within the meaning of Rule 144, may not be
transferred except pursuant to an effective registration statement
under the Securities Act or an opinion of counsel satisfactory to
the effect that such registration is not required, and any
certificate representing such shares shall bear a legend
substantially in the following form:
“THE SHARES REPRESENTED BY
THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED, AND MAY NOT BE SOLD, TRANSFERRED OR OTHERWISE
DISPOSED OF IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT
UNDER SUCH ACT OR AN OPINION OF COUNSEL SATISFACTORY TO THE
CORPORATION TO THE EFFECT THAT SUCH REGISTRATION IS NOT
REQUIRED.”
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(5) Form of Restricted
Certificate. Each Restricted Certificate shall be substantially
in the form attached hereto as Exhibit C .
(6) Transfer of Restricted
Certificates Following Termination of Global Certificates. In
the event that outstanding Global Certificates are terminated in
accordance with Section 2.11(c) of the Indenture, then the
provisions and requirements of this Section 2.03(e) shall
apply as nearly as possible to the exchange or transfer of any
Registered Certificate or interest therein in definitive registered
form.
SECTION 1.3. NOTICE OF DEFAULT AND
ANNUAL COMPLIANCE CERTIFICATE
Section 6.07 of the
Supplemental Indenture is hereby amended and restated to read in
its entirety as follows:
“Section 6.07 Notice of
Default
The Company shall notify the
Responsible Officer of the Trustee, promptly upon becoming aware
thereof, of any default or Event of Default, and shall deliver to
the Trustee a statement specifying such default or Event of Default
and the action the Company has taken, is taking or proposes to take
with respect thereto.”
ARTICLE II
SUPPLEMENTS TO THE
INDENTURE
SECTION 2.1. GOVERNING
LAW
The parties acknowledge and agree
that the Indenture was intended to be governed by the laws of the
State of New York, as evidenced by the disclosure set forth in that
certain Prospectus, dated October 17, 2008, relating to the
offer and sale by the Company from time to time of its debt
securities, but that, due to a scrivener’s error, the final
execution copy of the Indenture made reference to Delaware law.
Therefore, Section 13.04 of the Indenture is hereby amended
and restated to read in its entirety as follows:
“SECTION 13.04 Governing
Law.
