Exhibit 4.4
THIS PROMISSORY NOTE AND THE SECURITIES
OBTAINABLE UPON CONVERSION HEREOF (COLLECTIVELY, THE
“SECURITIES”) HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (“THE ACT”), OR THE
SECURITIES LAWS OF ANY STATE. THE SECURITIES MAY NOT BE
PLEDGED, SOLD, ASSIGNED OR TRANSFERRED EXCEPT PURSUANT TO AN
EFFECTIVE REGISTRATION STATEMENT UNDER SUCH ACT AND APPLICABLE
STATE SECURITIES LAWS OR PURSUANT TO AN APPLICABLE EXEMPTION FROM
THE REGISTRATION REQUIREMENTS OF SUCH ACT AND SUCH LAWS.
CONVERTIBLE PROMISSORY NOTE
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U.S. $_________
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June ___, 2009
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FOR VALUE RECEIVED, Island Breeze
International, a Cayman Islands exempt company (the
“Company”), hereby promises to pay to the order of
______________ (the “Lender”) the principal amount of
____________________ ($_____________) Dollars (the
“Principal Amount”), together with interest on the
Principal Amount under this convertible promissory note (this
“Note”) at the per annum rate of six (6%) percent
(calculated daily on the basis of a 360-day year and actual
calendar days elapsed). Subject to conversion or acceleration as
provided herein, the Principal Amount and accrued interest on this
Note shall become due and payable in one installment twelve months
from the date hereof (the “Maturity Date”).
Both the Principal Amount and accrued interest
shall be paid in lawful money of the United States of America to
the Lender at the address contained in the Securities Purchase
Agreement (as defined herein) or at such other address as the
Lender may designate by notice in writing to the Company, in
immediately available funds.
If any payment hereunder falls due on a
Saturday, Sunday or legal holiday, it shall be payable on the next
succeeding business day and such additional time shall be included
in the computation of interest.
This Note is one of a series of
Convertible Promissory Notes containing substantially identical
terms and conditions issued pursuant to that certain Securities
Purchase Agreement by and between the Company and certain Lenders
of even date herewith (the “Securities Purchase
Agreement”). All capitalized terms not defined
herein shall have the meanings ascribed thereto in the Securities
Purchase Agreement.
(a)
Merger and Acquisition . All of the outstanding
shares of Capital Stock the Company may be acquired by a publicly
held company ("Publicco") by merger; acquisition; share exchange;
or other similar transaction (the
“Transaction”). If such Transaction is
consummated, the Company will cause Publicco to assume the
Company’s obligations under this Note, including obligations
under Sections 1, 2, 3, 4, and 5 hereof, which Sections will apply
to Publicco immediately after the Transaction is
completed. In the event a Transaction is consummated,
the Company will be relieved of all obligations otherwise existing
under this Note. Except in the case of a self
registration, this Note will not be convertible prior to the
consummation of the Transaction and after the Transaction is
consummated, this Note will be convertible into Publicco Common
Stock. All references to the Company hereafter in
Sections 2, 3, 4, and 5 of this Note will refer to Publicco and
none of these Sections will apply to the
Company.
(b)
Conversion . In the
event the Company consummates a Transaction with Publicco, or
completes a self registration to become publicly held, the entire
principal and accrued interest outstanding on this Note shall be
automatically converted without any further action required by the
Company or the Lender (the “Exchange Conversion”) into
the successor or parent company’s Common Stock, as the case
may be, immediately upon consummation of the Transaction or the
Company becoming public. Contemporaneous with the Exchange
Conversion, the entire principal amount of this Note then
outstanding, together with the accrued and unpaid interest thereon,
will be converted automatically into shares of common stock of
Publicco at the rate of one share for each $0.50 of principal and
interest.
(c)
Failure of Merger Within Prescribed Time . In
the event that the Company shall not consummate a Transaction as
described in paragraph 1, within one (1) month of issuance of the Note,
then at the election of the Lender, the principal and accrued
interest with respect to the Note will become due and
payable.
(d)
No Impairment . The Company will not
through any reorganization, recapitalization, transfer of assets,
consolidation, merger, dissolution, issue or sale of securities or
any other voluntary action, avoid or seek to avoid the observance
or performance of any of the terms to be observed or performed
hereunder by the Company and will at all times in good faith assist
in the carrying out of all the provisions of this Section 1 and
take of all such action as may be necessary or appropriate in order
to protect the conversion rights of the Lender under this Note
against impairment.
2.
Reservation of
Shares . The Company shall cause Publicco at all
times to have authorized and reserved for issuance a sufficient
number of shares of its capital stock to provide for the full
conversion of this Note.
3.
Affirmative Covenants
. The Company covenants and agrees that, while any
amounts under this Note are outstanding, it shall:
(a)
Do all things
necessary to preserve and keep in full force and effect its
corporate existence, including, without limitation, all licenses or
similar qualifications required by it to engage in its business in
all jurisdictions in which it is at the time so engaged; and
continue to engage in business of the same general type as
conducted as of the date hereof; and (ii) continue to conduct its
business substantially as now conducted or as otherwise permitted
hereunder;
(b)
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