Exhibit 10.2
NEITHER
THIS NOTE NOR THE SECURITIES INTO WHICH THIS NOTE IS
CONVERTIBLE HAVE BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED (THE “ACT”), OR ANY APPLICABLE
STATE SECURITIES LAWS AND, ACCORDINGLY, MAY NOT BE OFFERED,
SOLD, TRANSFERRED, ASSIGNED, PLEDGED, HYPOTHECATED OR
OTHERWISE DISPOSED OF EXCEPT (A) PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT UNDER THE ACT AND, TO THE EXTENT
REQUIRED, ANY APPLICABLE STATE SECURITIES LAWS OR (B) UPON
DELIVERY OF AN OPINION OF COUNSEL REASONABLY ACCEPTABLE TO THE
ISSUER THAT AN EXEMPTION FROM REGISTRATION UNDER THE ACT AND
ANY APPLICABLE STATE SECURITIES LAWS IS
AVAILABLE.
CONVERTIBLE PROMISSORY NOTE
HORIZON FUEL CELL TECHNOLOGIES PTE LTD.
Due November 18, 2007
U.S.
$5,000,000 October 19, 2007
Horizon Fuel Cell
Technologies Pte Ltd., a company limited by shares duly
organized and existing under the laws of the Republic of
Singapore (herein referred to as the “ Company
”) for value received, hereby promises to pay to
Millennium Cell Inc. or its permitted assigns (the “
Holder ”), the principal sum of FIVE MILLION
U.S. DOLLARS ($5,000,000) (the “ Principal
Amount ”) on November 18, 2007 (subject to
acceleration as provided herein, the “ Maturity
Date ”) in the manner set forth
herein.
PREAMBLE
WHEREAS, on the date
hereof, the Company and the Holder have entered into a
Securities Purchase and Sale Agreement (the “
Agreement ”), whereby (i) the Holder has agreed
to issue to the Company a number of shares of the
Holder’s common stock, par value $0.001 per share with
an agreed value of U.S. $5,000,000 and (ii) the Company has
agreed to issue to the Holder and the Holder has agreed to
accept this Convertible Promissory Note (this “
Note ”) which, subject to the Horizon
Shareholder Approval, shall be automatically convertible into
a number of the Company’s ordinary shares of S$1.00
each in the share capital (“ Horizon Ordinary
Shares ”) with an agreed value of U.S.
$5,000,000;
WHEREAS, the issuance by
the Company of the Horizon Ordinary Shares to the Holder upon
conversion of this Note requires the Horizon Shareholder
Approval; and
WHEREAS, capitalized terms
used and not otherwise defined herein shall have the meanings
assigned to such terms in the Agreement.
Section 1
Payment of Principal Amount . The Principal
Amount shall be payable in full on the Maturity Date, unless
the Conversion Date occurs on or prior to the Maturity
Date. All sums payable hereunder shall be payable
in lawful money of the United States of America, to the
Holder. If any withholding or other taxes are
imposed on the payment of any sums hereunder, the Company
shall pay such additional amounts to the Holder as are
necessary for the Holder to receive the entire Principal
Amount.
Section 2
Automatic Conversion of Note into Horizon Shares
. This Note shall automatically, and without
action on the part of the Holder, be converted into an
aggregate of 33,740 Horizon Ordinary Shares (which number of
Horizon Ordinary Shares is subject to ratable adjustment for
any stock split, stock dividend, reverse stock split,
subdivision, combination, capital reorganization or
reclassification, or any other similar change in the
capitalization of the Company effected during the period
commencing on the date hereof and ending on the Conversion
Date (as defined below)) (the “ Horizon Shares
”) on the date the Horizon Shareholder Approval is
obtained (the “ Conversion Date ”),
provided that the Conversion Date occurs on or prior to the
Maturity Date. As promptly as practicable after
the Conversion Date, but in no event later than five (5)
Business Days after the later of (x) the Conversion Date and
(y) the date upon which the Holder shall have delivered to
the Company such documents as the Company shall have
reasonably requested from the Holder which are necessary to
register the Holder as a shareholder of the Company (such
date, the “ Settlement Date ”) (i) the
Company shall issue to the Holder a certificate representing
the Horizon Shares registered in the name of the Holder and
endorsed with the legend referenced in Section 3.8 of
the Agreement and (ii) the Holder shall surrender this Note
to the Company for cancellation. Notw
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