NEITHER THIS SECURITY NOR THE
SECURITIES FOR WHICH THIS SECURITY IS EXCHANGEABLE HAVE BEEN
REGISTERED WITH THE SECURITIES AND EXCHANGE COMMISSION OR THE
SECURITIES COMMISSION OF ANY STATE IN RELIANCE UPON AN EXEMPTION
FROM REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
“SECURITIES ACT”), AND, ACCORDINGLY, 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.
9% PROMISSORY NOTE
|
$___________________
|
as of September __, 2009
|
FOR VALUE RECEIVED, Pashminadepot.com, Inc., a
Florida corporation (the “ Maker ”), promises to
pay to the order of ________________________, or its successors or
assigns (the “ Holder ”), upon the terms set
forth below, the principal sum of
_____________________________________ Dollars ($____________) plus
interest on the unpaid principal sum outstanding at the rate of 9%
per annum (this “ Note ”). Defined terms not
otherwise defined herein shall have the meanings ascribed to such
terms in that certain purchase agreement of even date herewith
among the Maker, the Holder and certain other holders of Notes
substantially identical to this Note (the “ Purchase
Agreement ”). The Holder acknowledges and agrees that the
payment of all or any portion of the outstanding principal amount
and all interest thereon shall be pari passu in right of payment
and in all other respects to the other Notes.
(a) Unless an Event
of Default shall have previously occurred and be continuing or this
Note shall be exchanged by the Holder for securities in connection
with a Financing (as defined below) pursuant to Section 3, the full
amount of principal and accrued interest under this Note shall be
due and payable on a date (the “ Maturity Date
”) that shall be the earlier to occur of: (i) 120 days from
the date hereof or (ii) the date the Maker (or any successor in
interest to or parent of the Maker or any subsidiary of the Maker
or such successor-in-interest or parent) consummates the sale of
securities in a single transaction or series of related
transactions resulting in gross proceeds of at least $5,000,000 (a
“ Financing ”).
(b) The Maker shall
pay interest to the Holder on the aggregate and then outstanding
principal amount of this Note at the rate of 9% per annum, payable
in arrears on the earlier of (i) the Maturity Date or (ii)
acceleration of this Note following an Event of Default pursuant to
Section 2. Interest on this Note shall commence to
accrue as of the date of acceptance by the Company of the Purchase
Agreement as executed and delivered by the Holder (the “
Original Issue Date ”).
(c) Interest shall be
calculated on the basis of a 360-day year, consisting of twelve 30
calendar day periods, and shall accrue daily commencing on the
Original Issue Date until payment in full of the outstanding
principal, together with all accrued and unpaid interest, and other
amounts which may become due hereunder, has been made. Interest
hereunder will be paid to the person or entity in whose name this
Note is registered on the records of the Maker regarding
registration and transfers of this Note.
(d) All
overdue accrued and unpaid principal and interest to be paid
hereunder shall entail a late fee at the rate of 25% per annum (or
such lower maximum amount of interest permitted to be charged under
applicable law) which will accrue daily, from the date such
principal and/or interest is due hereunder through and including
the date of payment. Except as otherwise set forth in this Note,
the Maker may not prepay any portion of the principal amount of
this Note without the 10 business day advance written notice to the
Holder.
2.
Events of Default .
(a) “ Event
of Default ”, wherever used herein, means any one of the
following events (whatever the reason and whether it shall be
voluntary or involuntary or effected by operation of law or
pursuant to any judgment, decree or order of any court, or any
order, rule or regulation of any administrative or governmental
body):
(i) any default in
the payment of the principal of, or the interest on, this Note, as
and when the same shall become due and payable;
(ii) The Maker shall
fail to observe or perform any obligation or shall breach any term
or provision of this Note and such failure or breach shall not have
been remedied within ten business days after the date on which
notice of such failure or breach shall have been
delivered;
(iii) The Maker shall
fail to observe or perform any of its obligations owed to the
Holder or any other covenant, agreement, representation or warranty
contained in, or otherwise commit any material breach hereunder or
in any other agreement executed in connection herewith;
(iv) The Maker shall
commence, or there shall be commenced against the Maker a case
under any applicable bankruptcy or insolvency laws as now or
hereafter in effect or any successor thereto, or the Maker
commences any other proceeding under any reorganization,
arrangement, adjustment of debt, relief of debtors, dissolution,
insolvency or liquidation or similar law of any jurisdiction
whether now or hereafter in effect relating to the Maker, or there
is commenced against the Maker any such bankruptcy, insolvency or
other proceeding; or the Maker is adjudicated insolvent or
bankrupt; or any order of relief or other order approving any such
case or proceeding is entered; or the Maker suffers any appointment
of any custodian or the like for it or any substantial part of its
property; or the Maker makes a general assignment for the benefit
of creditors; or the Maker shall fail to pay, or shall state that
it is unable to pay, or shall be unable to pay, its debts generally
as they become due; or the Maker shall call a meeting of its
creditors
