Registration Statement for Securities Offered Pursuant to a Transaction — Form S-3
Filing Table of Contents
Document/Exhibit Description Pages Size
1: S-3 Registration Statement for Securities Offered 36 143K
Pursuant to a Transaction
2: EX-4.1 Instrument Defining the Rights of Security Holders 6 32K
3: EX-5.1 Opinion re: Legality 2 9K
4: EX-23.1 Consent of Experts or Counsel 1 5K
EX-4.1 — Instrument Defining the Rights of Security Holders
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EXHIBIT 4.1
FORM OF SUBORDINATED DEBENTURE
SUBORDINATED DEBENTURE
NO. T2 $2,000,000 USD
CYBER-CARE, INC.
13.75% Subordinated Debenture Due May 24, 2004
THIS DEBENTURE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT") OR ANY OTHER APPLICABLE STATE SECURITIES LAWS
AND HAS BEEN ISSUED IN RELIANCE UPON REGULATION D AND SECTION 4(2)
PROMULGATED UNDER THE SECURITIES ACT. THIS DEBENTURE SHALL NOT CONSTITUTE AN
OFFER TO SELL NOR A SOLICITATION OF AN OFFER TO BUY THE DEBENTURE IN ANY
JURISDICTION IN WHICH SUCH OFFER OR SOLICITATION WOULD BE UNLAWFUL.
THIS DEBENTURE MAY NOT BE SOLD, PLEDGED, TRANSFERRED OR ASSIGNED EXCEPT
PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT AND
UNDER APPLICABLE STATE SECURITIES LAWS, OR IN A TRANSACTION WHICH IS EXEMPT
FROM REGISTRATION UNDER THE PROVISIONS OF THE SECURITIES ACT AND UNDER
PROVISIONS OF APPLICABLE STATE SECURITIES LAWS.
THIS 13.75% SUBORDINATED CONVERTIBLE DEBENTURE is one of a duly
authorized issue of 13.75% Subordinated Debentures (the "Debenture") of
Cyber-Care, Inc., a corporation duly organized and existing under the laws of
the State of Florida (the "ISSUER"), issued on May 24, 2001 (the "Issuance
Date"), and designated as its Debenture due May 24, 2004, in an aggregate
face amount of all Debentures not exceeding Twenty Million Dollars (USD
$20,000,000.00).
This Debenture is being issued as part of a Unit of the Issuer's
securities pursuant to the terms of the Subscription Agreement dated May 24,
2001. This Debenture and the underlying shares of common stock of the Issuer
(the "Common Stock") are subject to all the conditions and limitations set
forth in the Subscription Agreement and the exhibits attached thereto
including, but not limited to, the ability of the ISSUER to issue a number of
shares of ISSUER's common stock, without shareholder approval, in excess of
the number of shares permitted by the rules and regulations of the NASDAQ
NATIONAL Stock Market ("NASDAQ").
FOR VALUE RECEIVED, the ISSUER promises to pay to: , the
registered holder hereof or its registered assigns, if any (the "HOLDER"),
the principal sum of: Two Million United States Dollars ($2,000,000), on May
24, 2004 (the "Maturity Date"), and to pay interest, as outlined below, at
the rate of thirteen and seventy-five one hundredths percent (13.75%) per
annum, subject to adjustment herein, on the principal sum outstanding for the
term of this Debenture. Accrual of interest shall commence on the date hereof
and shall be payable, except as provided herein, quarterly on August 1,
November 1, February 1 and May 1, commencing August 1, 2001. Interest shall
be payable by the ISSUER, fifty percent (50%) in cash, and fifty percent
(50%) in shares of the ISSUER's restricted Common Stock (the "Interest
Shares"). The number of Interest Shares the ISSUER may issue in lieu of cash
interest payments will be determined by dividing the amount of the applicable
interest payment by the average closing sale price for the ISSUER's Common
Stock for the quarterly trading period prior to the date the interest shall
be due and payable. The ISSUER must issue the Interest Shares within 30
calendar days from the date the applicable interest payment is due. The value
of the Interest Shares and the amount of interest paid with Interest Shares
shall be capped at Fifteen Dollars ($15) per share. For example, if an
interest payment due to the HOLDER is Three Hundred Dollars ($300) and the
average closing sale price for the ISSUER's Common Stock for the quarterly
trading period prior to the date the interest shall be due and payable is
Twenty Dollars
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($20) per share, the HOLDER shall be entitled to receive twenty (20) Interest
Shares. No fractional shares shall be issued and any fractional amounts shall
be paid in cash at the then price used to determine the Interest Shares. The
interest so payable will be paid to the person in whose name this Debenture
(or one or more predecessor Debentures) is registered on the records of the
ISSUER regarding registration and transfers of the Debenture (the "Debenture
Register"); PROVIDED, HOWEVER, that the ISSUER'S obligation to a transferee
of this Debenture arises only if such transfer, sale or other disposition is
made in accordance with the terms and conditions contained in this Debenture.
Principal and interest are payable at the address last appearing on the
Debenture Register as designated in writing by the HOLDER hereof from time to
time.
The foregoing notwithstanding, at any time beginning one year from the
Issuance Date, the HOLDER, at its sole option, may elect to receive interest
on the Debentures exclusively in cash. Such election is permanent. In the
event the HOLDER elects to receive interest exclusively in cash, the interest
rate shall be reduced to twelve and seventy five one hundredths percent
(12.75%) per annum.
The Debenture is subject to the following additional provisions:
1. EXCHANGEABILITY. The Debenture is exchangeable for like
Debentures in equal aggregate principal amount of authorized denominations,
as requested by the HOLDER surrendering the same. No service charge will be
made for such registration or transfer or exchange, although the HOLDER shall
be responsible for its own expenses associated with complying with the
restrictions on transfer of the Debenture.
2. WITHHOLDING. The ISSUER shall be entitled to withhold from all
payments of principal and interest of this Debenture any amounts required to
be withheld under the applicable provisions of the U.S. Internal Revenue Code
of 1986, as amended, or other applicable laws at the time of such payments.
3. RESTRICTION. This Debenture has been and the Conversion Shares
(as defined) will be issued subject to investment representations of the
original HOLDER hereof and may be transferred or exchanged in the United
States only in compliance with the Securities Act and applicable state
securities laws and in compliance with the restrictions on transfer provided
in the Subscription Agreement. Prior to the due presentment for such transfer
of this Debenture, the ISSUER and any agent of the ISSUER may treat the
person in whose name this Debenture is duly registered on the Debenture
Register as the owner hereof for the purpose of receiving payment as herein
provided and all other purposes, whether or not this Debenture is overdue,
and neither the ISSUER nor any such agent shall be affected by notice to the
contrary. The transferee shall be bound, as the original HOLDER, by the same
representations and terms described herein and under the Agreement and any
related agreements.
This Debenture has been acquired for investment purposes and not
with a view to distribution or resale and may not be pledged, hypothecated,
sold, made subject to a security interest, or otherwise transferred without
(i) an effective registration statement for such Debenture under the
Securities Act of 1933 and such applicable blue sky laws, or (ii) an opinion
of counsel, which opinion of counsel shall be reasonably satisfactory to the
Issuer and its counsel, that registration is not required under the
Securities Act or under any applicable blue sky laws. Transfer of the
Conversion Shares issued upon the exercise of this Debenture shall be
restricted in the same manner and to the same extent as the Debenture and the
certificates representing such Conversion Shares shall bear substantially the
following legend:
THE SHARES OF COMMON STOCK REPRESENTED BY THIS CERTIFICATE HAVE
NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
"SECURITIES ACT"), OR ANY APPLICABLE STATE SECURITIES LAW AND MAY NOT BE
TRANSFERRED UNTIL A REGISTRATION STATEMENT UNDER THE ACT OR SUCH APPLICABLE
STATE SECURITIES LAW SHALL HAVE BECOME EFFECTIVE WITH REGARD THERETO, OR IN
THE OPINION OF COUNSEL ACCEPTABLE TO THE COMPANY, REGISTRATION UNDER THE ACT
OR SUCH APPLICABLE STATE SECURITIES LAW IS NOT REQUIRED IN CONNECTION WITH
THE PROPOSED TRANSFER.
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4. REDEMPTION. This Debenture may be prepaid in whole or in part, at
any time at 110% of the principal amount to be redeemed plus any accrued and
unpaid interest due with respect to the Debenture. A redemption notice shall
be given by the Company to the HOLDER for the Debenture then outstanding at
least five days prior to the date of redemption.
5. EVENTS OF DEFAULT. If one or more of the following described
"Events of Default" shall occur:
(a) Any of the representations or warranties made by the ISSUER
herein shall have been incorrect when made in any material respect; or
(b) Except for the failure of ISSUER to pay an increased rate of
interest during an Event of Default as described below, the ISSUER shall
breach, fail to perform, or observe in any material respect any covenant,
term, provision, condition, agreement or obligation of the ISSUER under this
Debenture, and the Warrant comprising a part of the Units of which this
Debenture is a part, between the parties thereof and such default is not
cured within thirty (30) days of the ISSUER'S receipt of written notice from
the HOLDER or other party in respect to such default; or
(c) A trustee, liquidator or receiver shall be appointed for the
ISSUER or for a substantial part of its property or business without its
consent and shall not be discharged within sixty (60) days after such
appointment; or
(d) Any governmental agency or any court of competent
jurisdiction at the instance of any governmental agency shall assume custody
or control of all the properties or assets of the ISSUER and shall not be
dismissed within sixty (60) calendar days thereafter; or
(e) Bankruptcy reorganization, insolvency or liquidation
proceedings or other proceedings for relief under any bankruptcy law or any
law for the relief of debtors shall be instituted by or against the ISSUER
and, if instituted against the ISSUER, ISSUER shall by any action or answer
approve of, consent to, or acquiesce in any such proceedings or admit the
material allegations of, or default in, answering a petition filed in any
such proceeding or such proceedings shall not be dismissed within forty-five
(45) days thereafter; or
(f) Failure of the ISSUER to use its reasonable best efforts to
register the Common Stock issuable upon exercise under the Warrant which is a
part of the Unit which comprises this Debenture (the "Warrant Shares"),
pursuant to the terms of the Warrant, within six (6) months after the closing
of the offering.
Then, or at any time thereafter, and in each and every such case,
unless such Event of Default shall have been waived in writing by the HOLDER
(which waiver shall not be deemed to be a waiver of any subsequent default),
the interest rate of the Debentures shall be automatically increased to 18%
per annum until the Event of Default is cured, provided that no such interest
rate increase, or waiver thereof shall constitute a waiver of any other
rights the HOLDER may have as a result of such Event of Default.
6. ENTIRE AGREEMENT. This Debenture, together all documents annexed
thereto and referenced therein, embodies the full and entire understanding
and agreement between the ISSUER and HOLDER with respect to the subject
matter hereof and supersedes all prior oral or written agreements and
understandings relating to the subject matter hereof. Neither this Debenture
nor any terms hereof may be amended, waived, discharged or terminated other
than by a written instrument signed by the ISSUER and the HOLDER. Any
capitalized terms shall have the same meaning as given in the Warrant and the
Subscription Agreement. In the event of any inconsistencies between this
Debenture and such documents, the Debenture shall govern. No statement,
representation, warranty, covenant or agreement of any kind not expressly set
forth in this Debenture or the Disclosure shall affect, or be used to
interpret, change or restrict, the express terms and provisions of this
Debenture.
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7. MISCELLANEOUS. This Debenture will be construed and enforced in
accordance with and governed by the laws of the State of Florida, except for
matters arising under the Securities Act, without reference to principles of
conflicts of law. Each of the parties consents to the jurisdiction of the
Circuit Court serving Palm Beach County, Florida in connection with any
dispute arising under this Debenture and hereby waives, to the maximum extent
permitted by law, any objection, including any objection based on FORUM NON
CONVENIENS, to the bringing of any such proceeding in such jurisdictions.
Each party hereby agrees that, if the other party to this Debenture obtains a
judgment against it in such a proceeding, the party which obtained such
judgment may enforce same by summary judgment in the courts of any state or
country having jurisdiction over the party against whom such judgment was
obtained, and each party hereby waives any defenses available to it under
local law and agrees to the enforcement of such a judgment. Each party to
this Debenture irrevocably consents to the service of process in any such
proceeding by the mailing of copies thereof by registered or certified mail,
postage prepaid, to such party at its address set forth herein. Nothing
herein shall affect the right of any party to serve process in any other
manner permitted by law.
8. SUBORDINATION. This Debenture is the direct obligation of the
Company. However, the indebtedness evidenced by this
Debenture and the payment of the principal and interest
hereon, shall be at all times and in all respects wholly
subordinate, junior and subject in right of payment to any and
all "senior indebtedness" (as hereinafter defined) now
outstanding or hereinafter incurred. Without limiting the
effect of the foregoing, "subordination," as used herein,
shall be deemed to mean that, in the event of any default in
the payment of Senior Indebtedness (after giving effect to
"cure" provisions, if any) or of any liquidation, insolvency,
bankruptcy, reorganization, or similar proceedings relating to
the Company, all sums payable on Senior Indebtedness shall
first be paid in full, with interest, if any, before any
payment is made upon the indebtedness evidenced by this
Debenture, and, in such event, any payment or distribution of
any character which shall be made in respect of this Debenture
shall be paid over the holders of Senior Indebtedness for
application pro rata to the payment thereof, unless and until
such Senior Indebtedness shall have been paid and satisfied in
full. "Senior Indebtedness" shall mean the principal of, and
premium, if any, and interest on, all indebtedness of the
Company to banks, trusts companies, insurance companies and
similar institutional or secured lenders, and any deferrals,
renewals, extensions, or guarantees of any of such
indebtedness. There will be no restriction on the amount of
Senior Indebtedness to which this Debenture will be
subordinate.
9. CONVERSION. The Holder of this Debenture shall have the
following conversion
rights:
(a) HOLDER'S RIGHT TO CONVERT. The Holder shall have the right (but
not until 6 months after the Issuance Date), at any time and from
time to time prior to payment in full of this Debenture, at the
Holder's option, to convert any or all of the principal amount of
this Debenture for such number of fully paid, validly issued and
nonassessable shares of Common Stock, as is determined pursuant to
this Section 9.
(b) CONVERSION PRICE. The outstanding principal amount of this
Debenture that is converted into shares of Common Stock (the
"Conversion Shares") at the option of the Holder shall be
convertible into the number of shares of Common Stock which results
from a conversion price equal to ninety percent (90%) (the "Fair
Market Value") of a share of Common Stock (the "Conversion Price").
The Fair Market Value shall mean the average closing sale price for
a share of the Issuer's Common Stock for the twenty (20) trading
days immediately prior to the date of the Conversion Notice (as
defined below). The Conversion Price in no event shall be less than
$3.25.
(c) MECHANICS OF CONVERSION, In order to convert this Debenture (in
whole or in part) into full shares of Common Stock, the Holder (i)
shall give written notice in the form attached hereto (the
"Conversion
4
Notice") to the Issuer that the Holder elects to convert the
principal amount specified therein, which such notice and election
shall be irrevocable by the Holder unless the Common Stock shall
not have been delivered within five trading days of the date the
Conversion Notice is delivered to the Company, and (ii) if the
entire outstanding principal amount is being converted, as soon as
practicable after such notice, shall surrender this Debenture, duly
endorsed, by either overnight courier or 2-day courier, to the
Issuer; PROVIDED, HOWEVER, that the Company shall not be obligated
to issue certificates evidencing the shares of the Common Stock
issuable upon such conversion (where the entire outstanding
principal amount is being converted) unless either the Debenture
evidencing the principal amount is delivered to the Issuer as
provided above, or the Holder notifies the Issuer that such
Debenture(s) have been lost, stolen or destroyed and promptly
executes an agreement reasonably satisfactory to the Issuer to
indemnify the Issuer from any loss incurred by it in connection with
such lost, stolen or destroyed Debentures.
The Holder shall not be required to physically surrender this
Debenture to the Issuer unless the full outstanding principal amount
represented by this Debenture is being converted. The Holder and the
Issuer shall maintain records showing the outstanding principal
amount so converted and the dates of such conversions or shall use
such other method, reasonably satisfactory to the Holder and the
Issuer, so as not to require physical surrender of this Debenture
upon each such conversion. In the event of any dispute or
discrepancy, such records of the Issuer shall be controlling and
determinative.
The Issuer shall issue and deliver within five trading days of the
delivery to the Issuer of such Conversion Notice, to such Holder of
Debenture(s) at the address of the Holder, a certificate or
certificates for the number of shares of Common Stock to which the
Holder shall be entitled as aforesaid, together with a calculation
of the Conversion Rate and, if the Debenture has been surrendered
and is being converted in part only, a Debenture or Debentures for
the principal amount of Debentures not submitted for conversion. The
date on which the Conversion Notice is given (the "Holder Conversion
Date") shall be deemed to be the date the Issuer received by
facsimile the Conversion Notice provided that if not received by 5
p.m. on such date, the Holder Conversion Date shall be deemed to be
the next trading day, and the person or persons entitled to receive
the shares of Common Stock issuable upon such conversion shall be
treated for all purposes as the record holder or holders of such
shares of Common Stock on such date.The Holder of this Debenture
shall have no conversion rights:
10. ADJUSTMENT UPON CHANGES IN STOCK.
If there shall occur any capital reorganization or
reclassification of the Common Stock (other than a change in par value) or
any consolidation or merger of the Issuer with or into another corporation,
or a transfer of all or substantially all of the assets of the Issuer, or the
payment of a liquidating distribution, then, as part of any such
reorganization, reclassification, consolidation, merger, sale or liquidating
distribution, lawful provision shall be made so that the Holder of this
Debenture shall have the right thereafter to receive upon the exercise hereof
(to the extent, if any, still exercisable) the kind and amount of shares of
stock or other securities or property which the Holder would have been
entitled to receive if, immediately prior to any such reorganization,
reclassification, consolidation, merger, sale or liquidating distribution, as
the case may be, the Holder had held the number of shares of Common Stock
which were then issued upon the conversion of this Debenture. In any such
case, appropriate adjustment (as reasonably determined by the Board of
Directors of the Company) shall be made in the application of the provisions
set forth herein with respect to the rights and interests thereafter of the
Holder of this Debenture such that the provisions set forth in this Section
10 shall thereafter be applicable, as nearly as practicable, in relation to
any shares of stock or other securities or property thereafter deliverable
upon the exercise of this Debenture. If any adjustment under this Section 10
would create a fractional share of common stock or a right to acquire a
fractional share of common stock, such fractional share shall be
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disregarded and the number of shares subject to this Debenture shall be the
next higher number of Shares, rounding all fractions upward.
11. COVENANTS AND CONDITIONS.
(a) The Holder agrees to execute such other documents and
instruments as counsel for the Issuer reasonably deems necessary to effect
the compliance of the issuance of this Debenture and any Conversion Shares
issued upon exercise hereof with applicable federal and state securities laws.
(b) The Issuer covenants and agrees that all Conversion Shares
which may be issued upon exercise of this Debenture will, upon issuance and
payment therefor, be legally and validly issued and outstanding, fully paid
and nonassessable, free from all liens, charges and preemptive rights, if
any, with respect thereto or to the issuance thereof. The Issuer shall at all
times to reserve and keep available for issuance upon the exercise of this
Debenture such number of authorized but unissued shares of common stock as
will be sufficient to permit the conversion in full of this Debenture.
12. NO SHORTING. The HOLDER shall not engage in short sales or other
hedging transactions with respect to the ISSUER's common stock
during the period from the date hereof to the date all Debentures
owned by the HOLDER are either repaid in full, repaid by the Company
or the HOLDER is no longer the holder of a Warrant issued as part of
the Units to which this Debenture relates.
CYBER-CARE, INC.
By: /s/Paul C. Pershes
Name: Paul C. Pershes
Title: President
Dated: May 24, 2001
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Dates Referenced Herein
| Referenced-On Page |
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| This ‘S-3’ Filing | | Date | | First | | Last | | | Other Filings |
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| |  |
| | 5/24/04 | | 1 | | | | | None on these Dates |
| Filed on: | | 11/23/01 |
| | 8/1/01 | | 1 |
| | 5/24/01 | | 1 | | 6 |
| List all Filings |
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