THIS NOTE
AND ANY SECURITIES ISSUED OR ISSUABLE PURSUANT TO THE TERMS OF THIS
NOTE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT") OR ANY OTHER APPLICABLE SECURITIES
LAWS AND, ACCORDINGLY, THE SECURITIES REPRESENTED BY THIS NOTE AND
ANY SECURITIES ISSUED OR ISSUABLE PURSUANT TO THE TERMS OF THIS
NOTE MAY NOT BE TRANSFERRED EXCEPT PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT UNDER, OR IN A TRANSACTION EXEMPT FROM
REGISTRATION UNDER, THE SECURITIES ACT AND IN ACCORDANCE WITH ANY
OTHER APPLICABLE SECURITIES LAWS.
BOOMERANG SYSTEMS, INC.
12% PROMISSORY NOTE
BOOMERANG
SYSTEMS, INC., a Delaware corporation (hereinafter called the
" Company, " which term includes any directly or
indirectly controlled subsidiaries or successor entities), for
value received, hereby promises to pay to
________________________________ (hereinafter called the "
Holder " ), or its registered assigns, the
principal sum of _____________________Dollars ($_____________),
together with interest on the amount of such principal sum from
time to time outstanding, payable in accordance with the terms set
forth below. It is the intention of the parties that the
principal sum of this Note shall be advanced pursuant to the terms
of a Subscription Agreement between the Company and the Holder
dated as of August _____, 2008 (the " Agreement "
).
ARTICLE I
DEFINITIONS
1.1
Definitions . For all purposes of this Note, except as
otherwise expressly provided or unless the context otherwise
requires, the terms defined in this Article have the meanings
assigned to them in this Article and include the plural as well as
the singular.
"Common
Stock" means shares of
common stock, par value $0.01 per share, of the Company.
"Default" means any event which is, or after notice or
passage of time would be, an Event of Default.
"Event of
Default" has the meaning
specified in Section 3.1.
“Last
Sale Price” means,
for any day, when used with reference to Common Stock, shall mean
the price of said Common Stock determined as
follows: (i) the last reported sale price for
the Common Stock on such day on the principal securities exchange
on which the Common Stock is listed or admitted to trading or if no
such sale takes place on such date, the average of the closing bid
and asked prices thereof as officially reported, or, if not so
listed or admitted to trading on any securities exchange, the last
sale price for the Common Stock on the NASD Bulletin Board or the
“Pink Sheets” on such date as furnished by any NASD
member firm selected from time to time by the Company; or (ii) if
the Common Stock shall not be listed or admitted to trading or the
closing bid and asked prices are unable to be furnished by an NASD
member firm, as provided in clause (i) above, the fair market value
of the Common Stock as determined in good faith by the Board of
Directors of the Company.
"Maturity
Date" , when used with
respect to this Note, means August _____, 2009 (or such earlier
date upon which this Note becomes due and payable under Section
3.2).
"Note" means this Promissory Note, as hereafter
amended, modified, substituted or replaced and
“Notes” means this Note and all other Notes
containing substantially the same terms and conditions and referred
to in Section 6.7 hereof.
"Person" means any individual, corporation, limited
liability company, partnership, joint venture, association,
joint-stock company, trust, estate, other entity, unincorporated
organization or government or any agency or political subdivision
thereof.
“Post-Maturity Warrants”
has the meaning specified in Section
2.4.
“Trading Day”
means any days during the course of
which the principal securities exchange or market on which the
Common Stock is listed or admitted to trading or for which
quotations appear and is open for the purchase or sale of
securities.
ARTICLE II
PRINCIPAL AND INTEREST
2.1
Interest . From the date of this Note through the
Maturity Date, interest shall accrue hereunder on the unpaid
outstanding principal sum of this Note at a rate equal to twelve
percent (12%) per annum calculated on the basis of a 360-day
year. Such interest shall be payable at the rate of one
(1) per cent per month of the outstanding principal sum (pro rata
for each partial month as to which interest shall be payable) on
the first day of each month commencing September 1,
2008. All amounts of principal and interest accrued but
unpaid on the Maturity Date shall accrue interest at twelve percent
(12%) per annum calculated on the basis of a 360-day year until
paid.
2.2
Payment of Principal and Interest . The principal and all
accrued and unpaid interest under this Note shall be due and
payable in full on the Maturity Date.
2.3
Manner of Payment . Cash payments of principal and interest,
if any, on this Note will be made by delivery of a check to Holder
at its address as set forth in this Note or a wire trans
