lowell_ex41



Exhibit
4.1








 



THIS DEBENTURE AND THE SECURITIES ISSUABLE UPON THE CONVERSION
HEREOF HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933
(THE “ACT”), AS AMENDED, OR UNDER THE SECURITIES LAWS
OF ANY STATE. THESE SECURITIES MAY NOT BE OFFERED, SOLD OR
OTHERWISE TRANSFERRED, PLEDGED OR HYPOTHECATED EXCEPT AS PERMITTED
UNDER THE ACT AND APPLICABLE STATE SECURITIES LAWS PURSUANT TO AN
EFFECTIVE REGISTRATION STATEMENT OR AN EXEMPTION THEREFROM. THE
ISSUER OF THESE SECURITIES MAY REQUIRE AN OPINION OF COUNSEL
REASONABLY SATISFACTORY TO THE ISSUER THAT SUCH OFFER, SALE OR
TRANSFER, PLEDGE OR HYPOTHECATION OTHERWISE COMPLIES WITH THE ACT
AND ANY APPLICABLE STATE SECURITIES LAWS.

 



INDUS HOLDING COMPANY

 



SENIOR SECURED CONVERTIBLE DEBENTURE

 


	
$[ 
] 


	
  April 10,
2020











FOR
VALUE RECEIVED, Indus Holding Company, a Delaware corporation (the
“Company”),
promises to pay to [ ], in lawful money of the United States of
America the principal sum of $[ ], or such lesser amount as shall
equal the outstanding principal amount hereof, together with
interest from the date of this Senior Secured Convertible Debenture
(this “Debenture”) on
the unpaid principal balance at a rate equal to 5.5% per annum,
computed on the basis of the actual number of days elapsed and a
year of 365 days. All unpaid principal, together with any then
unpaid and accrued interest and other amounts payable hereunder,
shall be due and payable on the earlier of (i) five business
days following the demand of the Required Holders (as defined in
Section 5 hereof)
made at any date on or after the 42 month anniversary of the
Initial Closing Date (such fifth business day, the
“Maturity
Date”), or (ii) when, upon the occurrence and
during the continuance of an Event of Default (as defined in
Section 3 hereof),
such amounts are declared due and payable by the Required Holders
or made automatically due and payable, in each case, in accordance
with the terms hereof. This Debenture is one of the Senior Secured
Convertible Debentures issued pursuant to that certain Debenture
and Warrant Purchase Agreement, dated April 10, 2020 (as amended
from time to time, the “Purchase
Agreement”), by and among the Company and the
Purchasers listed on Schedule I of the Purchase
Agreement.

 


The
following is a statement of the rights of Holder (as defined in
Section 5 hereof)
and the conditions to which this Debenture is subject, and to which
Holder, by the acceptance of this Debenture, agrees:

 

1. Payments.

 

(a) Interest. Accrued interest on this Debenture
shall be payable in arears on a quarterly basis on the last day of
each calendar quarter after the date hereof, with any remaining
accrued but unpaid interest payable on the Maturity
Date.

 

(b) Voluntary Prepayment. This
Debenture may be prepaid by the Company in whole at any time or in
part from time to time without penalty or premium; provided that (i) any prepayment prior
to the 24 month anniversary of the Initial Closing Date may be made
only with the prior written consent of the Required Holders, (ii)
any prepayment of this Debenture may only be made in connection
with the prepayment of all Debentures on a pro rata basis, based on the respective
aggregate outstanding principal amounts of each such Debenture, and
(iii) any such prepayment shall be applied first to interest
accrued on this Debenture and second, if the amount of prepayment
exceeds the amount of all such accrued interest, to the payment of
principal of this Debenture; provided further that no consent of the
Required Holders shall be required for a prepayment (i) following
the occurrence of an Event of Default if such Event of Default has
not been waived by the Required Purchasers and the exercise of
remedies with respect thereto is not subject to a written deferral
by the Required Purchasers of at least 60 days from the date such
Indebtedness is incurred or (ii) in connection with a Change of
Control.

 

2. Conversion.

 

(a) Conversion into Class C Common
Shares.

 

(i) Conversion by Holder. At any
time on or after July 1, 2020 (or earlier if in connection with the
consummation of a Change of Control) and on or prior to the
Maturity Date, upon the election of the Holder, in its sole
discretion, all or any portion of the outstanding principal and
accrued but unpaid interest hereon shall convert into a number of
fully paid and nonassessable Class C Common Shares of the Company
(“Class C
Common Shares”) determined pursuant to the formula set
forth in Section
2(a)(iii).

 



 







 





 

(ii) Conversion
by the Company. At any time on or after (A) the 18-month
anniversary of the Initial Closing Date (as defined in the Purchase
Agreement) and prior to the 24-month anniversary of the Initial
Closing Date, and provided that (I) the closing price for the
subordinate voting shares of Indus Holdings, Inc. has been at least
4 times the Conversion Price (as defined below) on each trading day
of the immediately preceding 30-trading day period and (II) the
daily volume of the subordinate voting shares multiplied by the
weighted average trading price of the subordinate voting shares has
been at least $250,000 on each trading day of such period and (B)
the 24-month anniversary of the Initial Closing Date, and provided
that (I) the closing price for the subordinate voting shares of
Indus Holdings, Inc. has been at least 3 times the Conversion Price
(as defined below) on each trading day of the immediately preceding
30-trading day period and (II) the daily volume of the subordinate
voting shares multiplied by the weighted average trading price of
the subordinate voting shares has been at least $150,000 on each
trading day of such period, the Company may deliver a written
notice to each Holder of a Debenture requiring that this Debenture
be converted into Class C Common Shares. Effective as of the fifth
business day following delivery of such Notice, this Debenture
shall be converted into a number of Class C Common Shares
determined pursuant to the formula set forth in Section
2(a)(iii).

 

(iii) Conversion
Formula. The total number of Class C Common Shares that
Holder shall be entitled to receive upon conversion of this
Debenture pursuant to the this Section 2(a) shall be equal to
the number obtained by dividing (A) all or such portion of the
principal and accrued but unpaid interest under such Debenture
specified by the Holder by (B) $0.20 per share (the
“Conversion
Price”), subject to adjustment as set forth in
Section 2(d)
hereof.

 

(b) Conversion on Change of
Control. If the Company consummates a Change of Control (as
defined in Section
5 hereof) prior to the earlier to occur of the payment in
full or conversion of this Debenture and the Maturity Date, the
Company shall provide written notice to the Holder of such Change
of Control and a period of at least five (5) business days to
permit Holder to exercise its conversion rights pursuant to
Section 2(a)(i)
hereof.

 

(c) Conversion
Procedure.

 

(i) Conversion Mechanics. If this
Debenture is to be converted pursuant to this Section 2, Holder shall deliver
to the Company written notice to the Company of the conversion to
be effected, specifying the principal amount of the Debenture to be
converted, together with all accrued and unpaid interest, the date
on which such conversion shall occur and surrendering this
Debenture to the Company. The Company shall, as soon as practicable
thereafter, and in no event later than the date specified in such
notice, issue and deliver to Holder a certificate or certificates
for the number of shares to which Holder shall be entitled upon
such conversion.

 

(ii) Fractional
Shares. Notwithstanding anything herein contained, the
Company shall in no case be required to issue fractional Class C
Common Shares upon the conversion of this Debenture. If any
fractional interest in a Class C Common Share would, except for the
provisions of this 2(c)(ii), be deliverable upon the conversion of
this Debenture, the aggregate number of Class C Common Shares to
which such holder shall be entitled shall be rounded down to the
nearest whole number if the fraction is less than 0.5 and rounded
up to the nearest whole number if the fraction is 0.5 or
greater.

 

(d) Adjustments to Conversion Price and
Class C Common Shares. Subject
to the requirements of the Canadian Securities Exchange (or such
other exchange on which the Class C Common Shares are then listed),
the Conversion Price and Class C Common Shares shall be subject to
adjustment from time to time as follows:

 

(i) If and whenever at
any time prior to the Maturity Date the outstanding Class C Common
Shares shall be subdivided, redivided or changed into a greater or
consolidated into a lesser number of Class C Common Shares or
reclassified into different shares of capital stock of the Company
(a “Reclassification”),
or the Company shall issue additional Class C Common Shares (or
securities convertible into additional Class C Common Shares or
different shares of capital stock of the Company) to the holders of
all or substantially all of its outstanding Class C Common Shares
by way of a stock dividend or otherwise (other than an issue of
additional Class C Common Shares to holders of Class C Common
Shares who have elected to receive dividends in the form of Class C
Common Shares in lieu of receiving cash dividends paid in the
ordinary course) (a “Stock
Dividend”), Holder shall be entitled to receive and
shall accept, upon the exercise of such right at any time on the
effective date of such Reclassification or Stock Dividend or
thereafter, in lieu of the number of Class C Common Shares to which
he was theretofore entitled upon conversion, the aggregate number
of Class C Common Shares, different shares of capital stock of the
Company and/or securities convertible into Class C Common Shares or
different shares of capital stock of the Company that Holder would
have held immediately following such Reclassification or Stock
Dividend had he been the registered holder of the number of Class C
Common Shares to which he was theretofore entitled upon conversion
as of the applicable record date or effective date for such
action.

 

(ii) If
and whenever at any time prior to the Maturity Date the Company
shall issue rights, options or warrants to all or substantially all
the holders of its outstanding Class C Common Shares entitling them
to subscribe for or purchase additional Class C Common Shares,
different shares of capital stock of the Company or securities
convertible into Class C Common Shares or different shares of
capital stock of the Company, and if such issuance has or is
reasonably likely to have a material adverse effect on the
conversion privilege or right of Holder hereunder, then the
conversion rights (including, as applicable, the Conversion Price)
shall be adjusted appropriately as determined by the directors of
the Company, acting reasonably. If all such rights, options or
warrants are not exercised prior to the expiration thereof, the
Conversion Price shall be readjusted based upon the number of
additional Class C Common Shares, different shares of capital stock
of the Company or securities convertible into Class C Common Shares
or different shares of capital stock of the Company actually issued
upon the exercise of such rights, options or warrants, as the case
may be.

 



 







 





 

(iii) No
adjustments of the Conversion Price shall be made pursuant to
Section 2(d)(i) or Section 2(d)(ii) if the Holder is permitted to
participate in such Reclassification or Stock Dividend or in the
issue of such options, rights or warrants, as the case may be, as
though and to the same effect as if it had converted the principal
amount outstanding under this Debenture into Class C Common Shares
prior to the applicable record date or effective date for such
Reclassification or Stock Dividend or the issue of such options,
rights or warrants, as the case may be.

 

(iv) The
adjustments provided for in this Section 2(d) are cumulative and
shall be computed to the nearest one-tenth of one cent and will be
made successively whenever an event referred to therein occurs.
Notwithstanding the foregoing, no adjustment of the Conversion
Price shall be made in any case in which the resulting increase or
decrease in the Conversion Price would be less than one percent of
the then prevailing Conversion Price. Any adjustment that would
otherwise have been required to be made, but for the minimum
percentage threshold, shall be carried forward and made at the time
of and together with the next subsequent adjustment to the
Conversion Price which, together with any and all such adjustments
so carried forward, shall result in an increase or decrease in the
Conversion Price by not less than one percent.

 

(e) Notices of Record Date. In the
event of:

 

(i) Any taking by the
Company of a record of the holders of any class of securities of
Company for the purpose of determining the holders thereof who are
entitled to receive any dividend or other distribution or any right
to subscribe for, purchase or otherwise acquire any shares of stock
of any class or any other securities or property, or to receive any
other right; or

 

(ii) Any
capital reorganization of the Company, any reclassification or
recapitalization of the capital stock of the Company or any
transfer of all or substantially all of the assets of the Company
to any other Person or any consolidation or merger involving the
Company; or

 

(iii) Any
voluntary or involuntary dissolution, liquidation or winding-up of
the Company,

 


the
Company shall deliver to Holder at least 10 business days prior to
the earliest date specified therein, a notice specifying
(A) the date on which any such record is to be taken for the
purpose of such dividend, distribution or right and the amount and
character of such dividend, distribution or right; and (B) the
date on which any such reorganization, reclassification, transfer,
consolidation, merger, dissolution, liquidation or winding-up is
expected to become effective and the record date for determining
stockholders entitled to vote thereon.

 

3. Events of Default. The occurrence of any
of the following shall constitute an “Event of
Default” under this Debenture:

 

(a) Failure to Pay. The Company
shall fail to pay (i) when due any principal payment on the
Maturity Date therefor or (ii) any interest payment required
under the terms of this Debenture on the date due and such payment
shall not have been made within five business days of the
Company’s receipt of written notice by the Required Holders
of such failure to pay; or

 

(b) Breaches of
Covenants. The
Company shall fail to observe or perform any other covenant,
obligation, condition or agreement contained in this Debenture
(other than those specified in Section 3(a) hereof), the
Purchase Agreement or any other Transaction Document (other than
the Voting Agreement), including, without limitation, the negative
covenants set forth in Section 6(a) of the Purchase Agreement and,
in the event of such failure is susceptible to cure, such failure
shall not have been cured by the Company within thirty (30) days
after written notice to the Company by the Required Holders of such
failure; or

 

(c) Voluntary Bankruptcy or Insolvency
Proceedings. The
Company shall (i) apply for or consent to the appointment of a
receiver, trustee, liquidator or custodian of itself or of all or a
substantial part of its property, (ii) admit in a writing
approved by the Company’s board of directors its inability to
pay its debts generally as they mature, (iii) make a general
assignment for the benefit of its creditors, (iv) be dissolved
or liquidated under any bankruptcy, insolvency or other similar law
now or hereafter in effect, (v) commence a voluntary case or
other proceeding seeking liquidation, reorganization or other
relief with respect to itself or its debts under any bankruptcy,
insolvency or other similar law now or hereafter in effect or
consent to any such relief or to the appointment of or taking
possession of its property by any official in an involuntary case
or other proceeding commenced against it, or (vi) enter into any
agreement (other than for the engagement of legal or financial
advisors) for the purpose of effecting any of the foregoing;
or

 

(d) Involuntary Bankruptcy or Insolvency
Proceedings.
Proceedings for the appointment of a receiver, trustee, liquidator
or custodian of the Company, or of all or a substantial part of the
property thereof, or an involuntary case or other proceedings
seeking liquidation, reorganization or other relief with respect to
the Company or any of its subsidiaries, if any, or the debts
thereof under any bankruptcy, insolvency or other similar law now
or hereafter in effect shall be commenced and an order for relief
entered or such proceeding shall not be dismissed or discharged
within 60 days of commencement.

 



 







 





 

4. Rights of Holder upon Default. Upon the
occurrence of any Event of Default (other than an Event of Default
described in Section 3(c) or
Section 3(d))
hereof and at any time thereafter during the continuance of such
Event of Default, the Required Holders may, by written notice to
the Company, declare all outstanding obligations payable by the
Company hereunder to be immediately due and payable without
presentment, demand, protest or any other notice of any kind, all
of which are hereby expressly waived. Upon the occurrence of any
Event of Default described in Section 3(c) and
Section 3(d)
hereof, immediately and without notice, all principal and accrued
and unpaid interest hereunder shall automatically become
immediately due and payable, without presentment, demand, protest
or any other notice of any kind, all of which are hereby expressly
waived. In addition to
the foregoing remedies, upon the occurrence and during the
continuance of any Event of Default, the Required Holders may
exercise any other right power or remedy permitted to the Holders
by law, either by suit in equity or by action at law, or
both.

 

5. Definitions. As used in this Debenture,
the following capitalized terms shall have the following
meanings:

 


 “Change
of Control” means the occurrence of (i) any
transaction or series of related transactions to which Parent, the
Company or one of its Subsidiaries is a party that results in a
“person” or “group” (within the meaning of
Section 13(d) and 14(d) of the Securities Exchange Act of 1934, as
amended), becoming the “beneficial owner” (as defined
in Rule 13d-3 under the Securities Exchange Act of 1934, as
amended), directly or indirectly, of outstanding voting securities
of Parent having the right to cast more than 50% of the votes for
the election of members of the Board of Directors of Parent, (ii)
any reorganization, merger or consolidation of Parent, other than a
transaction or series of related transactions in which the holders
of the voting securities of Parent outstanding immediately prior to
such transaction or series of related transactions retain,
immediately after such transaction or series of related
transactions, at least a majority of the total voting power
represented by the outstanding voting securities of Parent or such
other surviving or resulting entity or (iii) a sale, lease or other
disposition of all or substantially all of the assets of Parent and
its Subsidiaries taken as a whole.

 


“Debentures”
means each of the Debentures issued pursuant to the Purchase
Agreement.

 


 “Event
of Default” has the meaning given in Section 3
hereof.

 


“Holder” or
“Holder
of this Debenture” means the Person specified in the
introductory paragraph of this Debenture or any Person who at the
time in question is the registered holder of this Debenture and
“Holders”
means, at the time in question, collectively, the registered
holders of the Debentures.

 


“Person” means
an individual, a partnership, a corporation (including a business
trust), a joint stock company, a limited liability company, an
unincorporated association, a joint venture or other entity or a
governmental authority.

 


“Required
Holders” means the Holders holding a majority of the
aggregate outstanding principal due under the
Debentures.

 


“Securities
Act” means the Securities Act of 1933, as
amended.

 


“Subsidiary”
shall have the meaning assigned to such term in the Purchase
Agreement.


 

6. Miscellaneous.

 

(a) Successors and Assigns; Transfer of
this Debenture or Securities Issuable on Conversion
Hereof.

 

(i) Subject to the
restrictions on transfer described in this Section 6(a), the rights
and obligations of the Company and Holder shall be binding upon and
benefit the successors, assigns, heirs, administrators and
transferees of the Company and Holder.

 



 







 





 

(ii) With
respect to any offer, sale or other disposition of this Debenture
or securities into which such Debenture may be converted, Holder
shall give written notice to the Company prior thereto, describing
briefly the manner thereof, together with a written opinion of
Holder’s counsel or other evidence reasonably satisfactory to
the Company, to the effect that such offer, sale or other
distribution may be effected without registration or qualification
(under any federal or state law then in effect). Upon receiving
such written notice and reasonably satisfactory opinion or other
evidence if so requested, the Company, as promptly as practicable,
shall notify Holder that Holder may sell or otherwise dispose of
this Debenture or such securities, all in accordance with the terms
of the notice delivered to the Company. If a determination has been
made pursuant to this Section 6(a) that the
opinion of counsel for Holder, or other evidence, is not reasonably
satisfactory to the Company, the Company shall so notify Holder
promptly after such determination has been made. Each Debenture
thus transferred and each certificate representing the securities
thus transferred shall bear a legend as to the applicable
restrictions on transferability in order to ensure compliance with
the Securities Act, unless in the opinion of counsel for the
Company such legend is not required in order to ensure compliance
with the Securities Act. The Company may issue stop transfer
instructions to its transfer agent in connection with such
restrictions. Subject to the foregoing, transfers of this Debenture
shall be registered upon registration books maintained for such
purpose by or on behalf of the Company. Prior to presentation of
this Debenture for registration of transfer, the Company shall
treat the registered holder hereof as the owner and holder of this
Debenture for the purpose of receiving all payments of principal
and interest hereon and for all other purposes whatsoever, whether
or not this Debenture shall be overdue and the Company shall not be
affected by notice to the contrary.

 

(iii) Neither
this Debenture nor any of the rights, interests or obligations
hereunder may be assigned, by operation of law or otherwise, in
whole or in part, by the Company without the prior written consent
of Holder, provided that the Company may assign this Debenture
without the consent of Holder to an acquiror of all or a
substantial portion of the Company’s business and assets
(however structured).

 

(b) Waiver and
Amendment. Any
provision of this Debenture may be amended, waived or modified only
upon the written consent of the Company and the Required Holders.
Any amendment or waiver effected in accordance with this paragraph
shall be binding upon all holders of Debentures.

 

(c) Notices. All notices, requests, demands,
consents, instructions or other communications required or
permitted hereunder shall be made in accordance with Section 7(g)
of the Purchase Agreement.

 

(d) Pari Passu
Debentures. Holder
acknowledges and agrees that the payment of all or any portion of
the outstanding principal amount of this Debenture and all interest
hereon shall be pari passu
in right of payment and in all other respects to the other
Debentures, and is pari
passu in right of payment and in all other respects to other
indebtedness of the Company. In the event Holder receives payments
in excess of its pro rata share of the Company’s payments to
the Holders of all of the Debentures, then Holder shall hold in
trust all such excess payments for the benefit of the Holders of
the other Debentures and shall pay such amounts held in trust to
such other holders upon demand by such holders.

 

(e) Payment. Unless converted into
the Company’s equity securities pursuant to the terms hereof,
payment shall be made in United States dollars.

 

(f) Usury. In the event any interest is paid on
this Debenture which is deemed to be in excess of the then legal
maximum rate, then that portion of the interest payment
representing an amount in excess of the then legal maximum rate
shall be deemed a payment of principal and applied against the
principal of this Debenture.

 

(g) Governing Law and
Venue.

 

(i) This Debenture and
all actions arising out of or in connection with this Debenture
shall be governed by and construed in accordance with the laws of
the State of Delaware, without regard to its internal rules
governing the conflict of laws.

 

(ii) Each
of the Company and the Holder hereby irrevocably and
unconditionally submits, for itself and its property, to the
exclusive jurisdiction of any Delaware State court or Federal court
of the United States of America sitting in Delaware, in Wilmington,
and any appellate court from any thereof, in any action or
proceeding arising out of or relating to this Debenture or the
transactions contemplated hereby or for recognition or enforcement
of any judgment relating hereto, and each of the Company and the
Holder hereby irrevocably and unconditionally (a) agrees not to
commence any such action or proceeding except in such courts; (b)
agrees that any claim in respect of any such action or proceeding
may be heard and determined in such courts; (c) waives any
objection or defense which it may now or hereafter have based on
personal jurisdiction; (d) waives any objection which it may now or
hereafter have to the laying of venue of any such action or
proceeding in any such court; and (e) waives the defense of an
inconvenient forum to the maintenance of such action or proceeding
in any such court. Each of the Company and the Holder agrees that a
final judgment in any such action or proceeding shall be conclusive
and may be enforced in other jurisdictions by suit on the judgment
or in any other manner provided by law. Each of the Company and the
Holder irrevocably consents to service of process in the manner
provided for notices in Section 7(g) of the Purchase
Agreement.

 



 







 





 

(iii) EACH
OF THE COMPANY AND THE HOLDER HEREBY IRREVOCABLY WAIVES ALL RIGHTS
TO TRIAL BY JURY IN ANY PROCEEDING BROUGHT TO RESOLVE ANY DISPUTE
BETWEEN THE COMPANY AND THE HOLDER (WHETHER ARISING IN CONTRACT,
TORT OR OTHERWISE) ARISING OUT OF, CONNECTED WITH, RELATED TO OR
INCIDENTAL TO THIS DEBENTURE, THE TRANSACTIONS CONTEMPLATED HEREBY
OR THE RELATIONSHIPS ESTABLISHED BETWEEN THE COMPANY, THE HOLDER,
ANY OTHER HOLDER(S) OF DEBENTURES AND/OR THE COLLATERAL AGENT
HEREUNDER.

 

 


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The
Company has caused this Debenture to be issued as of the date first
written above.

 


INDUS
HOLDING COMPANY


 


 


By:                                                 




 


 


 


 


 



Signature page to Senior Secured Convertible
Debenture



 



 







 






 


 

 


Accepted
by:

 


[If
entity:]

 


PURCHASER:

 


[Purchaser]

 


 

 


By:                                          
]

 


[Name]


[Title]
     
                 
             
]

 


[If
individual:]

 


PURCHASER:

 


 

 


              
         
                 
                
      
                                             




[Purchaser]


 


 




Signature
page to Senior Secured Convertible Debenture