Exhibit 10.2
THE SECURITY REPRESENTED BY THIS
INSTRUMENT HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED (THE “SECURITIES ACT”). ACCORDINGLY,
THIS SECURITY MAY NOT BE OFFERED OR SOLD EXCEPT PURSUANT TO AN
EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR
PURSUANT TO AN AVAILABLE EXEMPTION FROM, OR IN A TRANSACTION NOT
SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND
IN ACCORDANCE WITH APPLICABLE STATE SECURITIES LAWS, AS EVIDENCED
BY A LEGAL OPINION OF COUNSEL TO THE TRANSFEROR TO SUCH EFFECT, THE
SUBSTANCE OF WHICH SHALL BE REASONABLY ACCEPTABLE TO THE COMPANY.
THIS SECURITY AND THE SECURITIES ISSUABLE UPON CONVERSION OF THIS
SECURITY MAY BE PLEDGED IN CONNECTION WITH A BONA FIDE MARGIN
ACCOUNT OR OTHER LOAN SECURED BY SUCH SECURITIES. THE TRANSFER OF
THIS SECURITY IS ALSO SUBJECT TO THE CONDITIONS SPECIFIED IN THE
NOTE PURCHASE AGREEMENT, DATED AS OF JANUARY 16, 2008, AS AMENDED
AND MODIFIED FROM TIME TO TIME, BETWEEN QUANTUM FUEL SYSTEMS
TECHNOLOGIES WORLDWIDE, INC. (THE “COMPANY”) AND THE
PURCHASER PARTY THERETO. THE COMPANY RESERVES THE RIGHT TO REFUSE
THE TRANSFER OF SUCH SECURITY UNTIL SUCH CONDITIONS HAVE BEEN
FULFILLED WITH RESPECT TO SUCH TRANSFER. UPON WRITTEN REQUEST, A
COPY OF SUCH CONDITIONS SHALL BE FURNISHED BY THE COMPANY TO THE
HOLDER HEREOF WITHOUT CHARGE.
THE SECURITIES REPRESENTED HEREBY
ARE SUBJECT TO A CONVERTIBLE NOTE PURCHASE AGREEMENT, DATED AS OF
JANUARY 16, 2008, BY AND BETWEEN THE COMPANY AND THE INVESTOR
REFERRED TO THEREIN (THE “PURCHASE AGREEMENT”), AND THE
HOLDER OF THE NOTE, BY ACCEPTANCE OF THIS NOTE, AGREES TO BE BOUND
BY ALL APPLICABLE PROVISIONS OF THE PURCHASE
AGREEMENT.
THIS NOTE AMENDS AND RESTATES
THAT CERTAIN CONVERTIBLE PROMISSORY NOTE DATED JANUARY 16, 2008, IN
THE ORIGINAL PRINCIPAL AMOUNT OF $16,195,676.30, AND THAT CERTAIN
CONVERTIBLE PROMISSORY NOTE DATED MAY 30, 2008 (COLLECTIVELY, THE
“PRIOR NOTES”) ISSUED BY THE UNDERSIGNED TO THE ORDER
OF WHITEBOX QT, LLC. (THE “HOLDER”). IT IS EXPRESSLY
INTENDED, UNDERSTOOD AND AGREED THAT THIS NOTE SHALL REPLACE THE
PRIOR NOTES AS EVIDENCE OF SUCH INDEBTEDNESS OF THE UNDERSIGNED TO
THE HOLDER, AND SUCH INDEBTEDNESS OF THE UNDERSIGNED TO THE HOLDER
HERETOFORE REPRESENTED BY THE PRIOR NOTES, AS OF THE DATE HEREOF,
SHALL, TO THE EXTENT NOT ALREADY PAID, BE CONSIDERED OUTSTANDING
HEREUNDER FROM AND AFTER THE DATE HEREOF AND SHALL NOT BE
CONSIDERED PAID (NOR SHALL THE UNDERSIGNED’S OBLIGATION TO
PAY THE SAME BE CONSIDERED DISCHARGED OR SATISFIED) AS A RESULT OF
THE ISSUANCE OF THIS NOTE. THE PRINCIPAL AMOUNT DUE UNDER THIS NOTE
REFLECTS ANY PRINCIPAL REDUCTIONS RESULTING FROM HOLDER’S
CONVERSIONS OF PRINCIPAL THAT OCCURRED BETWEEN JANUARY 16, 2008 AND
THE DATE HEREOF.
QUANTUM FUEL SYSTEMS TECHNOLOGIES
WORLDWIDE, INC.
SECOND AMENDED AND
RESTATED
CONVERTIBLE PROMISSORY
NOTE
QUANTUM FUEL SYSTEMS TECHNOLOGIES
WORLDWIDE, INC., a Delaware corporation (the “ Company
”), hereby promises to pay to the order of WB QT, LLC, a
Delaware limited liability company (the “ Purchaser
”), the principal amount of Seven Million One Hundred
Seventy-One Thousand Four Hundred Forty-One Dollars ($7,171,441)
plus the portion of the Accreted Principal Amount (as defined
below) in excess thereof together with interest on the Accreted
Principal Amount calculated from the date hereof in accordance with
the provisions of this Note. The Prior Notes were issued pursuant
to the Note Purchase Agreement, dated as of January 16, 2008
(the “ Purchase Agreement ”), between the
Company and the Purchaser. The Purchase Agreement contains terms
governing the rights of the holder of the Prior Notes and this
amended Note (collectively, this “ Note ”), and
all provisions of the Purchase Agreement are hereby incorporated
herein in full by reference, provided that to the extent that the
terms and conditions of this Note are different from or in addition
to the terms and conditions of the Purchase Agreement, the Purchase
Agreement shall be deemed amended hereby to conform to the terms
and conditions of this Note. Unless otherwise indicated herein,
capitalized terms used in this Note have the same meanings set
forth in the Purchase Agreement.
ARTICLE I
PAYMENT OF INTEREST; CONTINGENT
INTEREST
Interest shall accrue on the
Accreted Principal Amount (in each case computed on the basis of a
365/366-day year and the actual number of days elapsed in any year)
at an annual rate equal to 11.50% (or, from and after any extension
of the maturity date of this Note under Section 2.1 below,
9.5%) per annum or (if less) at the highest rate then
permitted under applicable law, all of which shall be payable by
adding such interest to the Accreted Principal Amount on each
Interest Payment Date (as defined below), and on the final maturity
hereof (the “ PIK Amounts ”). At any time, the
outstanding principal amount of this Note, including all PIK
Amounts and Default PIK Amounts (as defined below) added thereto
through such time, is referred to in this Note as the “
Accreted Principal Amount .” All accrued interest
(including PIK Amounts, Default PIK Amounts and interest on the
Accreted Principal Amount) shall be added to the Accreted Principal
Amount on the first day of each July and January (each, an “
Interest Payment Date ”) and on the final maturity
date of this Note. Any Accreted Principal Amount (including PIK
Amounts and Default PIK Amounts) which for any reason has not
theretofore been paid shall increase the principal of the Note and
be paid in full on the date on which the final principal payment on
this Note is made (the “ Default PIK Amounts ”);
provided , however , that any such reason shall not
affect or waive any Event of Default that arises due to the failure
to make such payment in cash; provided further , that the
Company has the option to elect by written notice to Lender at
least five (5) business days prior to each Interest Payment
Date to pay a total of 6.5% of the PIK Amounts in cash. Interest
shall accrue on any principal payment due under this
Note
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(including as to accrued interest added to the
principal) until such time as payment therefor is actually
delivered to the holder of this Note.
ARTICLE II
PAYMENT OF PRINCIPAL ON
NOTE
Section 2.1 Scheduled Payment
. The Company shall pay the Accreted Principal Amount or, if less,
the outstanding principal amount of this Note to the holder of this
Note on August 31, 2010, together with all accrued and unpaid
interest on the principal amount being repaid At the election of
the Purchaser in its sole discretion and upon written notice to the
Company no later than August 15, 2010, such maturity date
shall be extended until August 31, 2013 (either such date, the
“ Maturity Date ”).
Section 2.2 Conversion .
Notwithstanding any provision contained in this Article 2, the
holder of this Note may convert all or any portion of the
outstanding principal amount of this Note into shares of common
stock, $.001 par value per share, of the Company (the “
Common Shares ”) in accordance with Article 6
until such time as such principal amount has been paid.
ARTICLE III
[Reserved].
ARTICLE IV
[Reserved].
ARTICLE V
EVENTS OF DEFAULT; REMEDIES ON
DEFAULT
Section 5.1 Event of Default
. An “ Event of Default ” shall exist if any of
the following conditions or events shall occur and be
continuing:
(a) the Company defaults in the
payment of principal on the Note when the same becomes due and
payable, whether at maturity or at a date fixed for prepayment or
by declaration or otherwise, or fails to deliver the Common Shares
to the Purchaser in the manner and at the times set forth in
Article 6 hereof, and such failure to pay is not cured within three
(3) business days after the occurrence thereof; or
(b) the Company defaults in the
payment of any interest on the Note for more than five
(5) business days after the same becomes due and payable;
or
(c) the Company defaults with
respect to Section 6.1 of the Purchase Agreement;
or
(d) the Company defaults in the
performance of, or compliance with, any other term contained in the
Purchase Agreement or the Note (other than those referred to in
Section 5.1(a), (b) or (c) above) and the default is
not remedied within thirty (30) days
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after the earlier of (i) the
Chief Executive Officer or the Chief Financial Officer obtaining
actual knowledge of the default and (ii) the Company receiving
written notice of the default from the holder of this Note (any
such written notice to be identified as a “notice of
default” and to refer specifically to this
Section 5.1(d)); or
(e) any representation or warranty
made by the Company in Article IV of the Purchase Agreement
proves to have been false in any material respect on the Closing
Date; or
(f) the Company (i) is
generally not paying, or admits in writing its inability to pay its
debts as they become due (ii) files, or consents by answer or
otherwise to the filing against it of, a petition for relief or
reorganization or arrangement or any other petition in bankruptcy,
for liquidation or to take advantage of any bankruptcy, insolvency,
reorganization, moratorium or other similar law of any
jurisdiction, (iii) makes an assignment for the benefit of its
creditors, (iv) consents to the appointment of a custodian,
receiver, trustee or other officer with similar powers with respect
to it or with respect to any substantial part of its property or
(v) is adjudicated as insolvent or to be liquidated;
or
(g) a court or Governmental
Authority of competent jurisdiction enters an order appointing,
without consent by the Company, a custodian, receiver, trustee or
other officer with similar powers with respect to it or with
respect to any substantial part of its property, or constituting an
order for relief or approving a petition for relief or
reorganization or any other petition in bankruptcy or for
liquidation or to take advantage of any bankruptcy or insolvency
law of any jurisdiction, or ordering the dissolution, winding-up or
liquidation of the Company, or any such petition shall be filed
against the Company and such petition shall not be dismissed within
thirty (30) days; or
(h) an Event of Default (as defined
in the Credit Agreement) shall have occurred and be continuing and
shall not have been waived by the requisite holders of Indebtedness
under the Credit Agreement or cured.
Section 5.2 Acceleration
.
(a) If an Event of Default with
respect to the Company described in subsection (f) of
Section 5.1 has occurred, the Note shall automatically become
immediately due and payable.
(b) If any other Event of Default
has occurred and is continuing, the holder of the Note may at any
time at his, her or its option, by notice to the Company, declare
the Note to be immediately due and payable.
(c) Upon the Note becoming due and
payable under this Section 5.2, whether automatically or by
declaration, the Note will forthwith mature and the entire unpaid
principal amount of the Note, plus all accrued and unpaid interest
thereon, shall all be immediately due and payable, in each and
every case without presentment, demand, protest or further notice,
all of which are hereby waived.
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Section 5.3 Other Remedies .
If any Event of Default has occurred and is continuing, and
irrespective of whether the Note has become or has been declared
immediately due and payable under Section 5.1, the holder of
the Note may proceed to protect and enforce the rights of such
holder by an action at law, suit in equity or other appropriate
proceeding, whether for the specific performance of any agreement
contained herein, or for an injunction against a violation of any
of the terms hereof or thereof, or in aid of the exercise of any
power granted hereby or thereby or by law or otherwise.
Section 5.4 No Waivers or
Election of Remedies; Expenses . No course of dealing and no
delay on the part of the holder of the Note in exercising any
right, power or remedy shall operate as a waiver thereof or
otherwise prejudice such holder’s rights, powers or remedies.
The Company shall pay the principal and interest of the Note
without any deduction for a
