FORM OF UNSECURED PROMISSORY
NOTE
THE SECURITIES
REPRESENTED BY THIS CERTIFICATE HAVE BEEN ACQUIRED FOR INVESTMENT
AND NOT WITH A VIEW TO, OR IN CONNECTION WITH, THE SALE OR
DISTRIBUTION THEREOF, AND HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, AND MAY NOT BE SOLD,
TRANSFERRED OR ASSIGNED UNLESS COVERED BY AN EFFECTIVE REGISTRATION
STATEMENT UNDER SAID ACT OR AN OPINION OF COUNSEL SATISFACTORY TO
THE ISSUER TO THE EFFECT THAT ANY SUCH TRANSFER IS EXEMPT FROM SUCH
REGISTRATION.
INDIA GLOBALIZATION CAPITAL,
INC.
UNSECURED PROMISSORY
NOTE
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$____,000
|
[Date]
|
|
|
Bethesda, MD
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1. Principal and
Interest .
1.1 India
Globalization Capital, Inc., a Maryland corporation (the
“Company”), for value received, hereby promises to pay
to the order of __________ or its assigns (the
“Investor” or the “Holder”) the amount of
____ Dollars ($____,000) plus interest, as set forth
hereinafter.
1.2 This Unsecured
Promissory Note (the “Note”) shall bear interest from
the date of issuance of this Note until paid in full at a rate
equal to six percent (6%) per annum, accruing monthly in
arrears. This Note, including all interest earned on the
principal amount of this Note, shall be due and payable on the
earlier of (i) one year from the date of the issuance of this Note
(the “Maturity Date”), (ii) upon a Change in Control
(as defined in Section 4 hereof) and (iii) the occurrence of an
Event of Default (as defined in Section 5 hereof).
1.3 Payments of both
principal and interest are to be made at the address of the Holder
set forth in Section 7 below or at such other place in the
United States as the Holder shall designate to the Company in
writing, in lawful money of the United States of America in
immediately available funds. Interest on this Note shall
be computed on the basis of a 365-day year and actual days
elapsed. Payment shall be credited first to the accrued
interest then due and payable and the remainder applied to
principal.
1.4 This Note is
issued pursuant to that certain Note and Share Purchase Agreement
dated as of ________________ between the Company and Holder (the
“Purchase Agreement”). The provisions of
this Note are a statement of the rights of the Holder and the
conditions to which this Note is subject and to which the Holder,
by the acceptance of this Note, agrees. Capitalized
terms used and not otherwise defined herein shall have the meanings
ascribed thereto on the Purchase Agreement. Holder
acknowledges and agrees that the payment of all or any portion of
the outstanding principal amount of this Note and all interest
hereon shall be pari passu in right of payment and in all other
respects to the other Notes issued pursuant to the Purchase
Agreement or pursuant to the terms of such Notes. In the
event Holder receives payments in excess of its pro rata share of
the Company’s payments to the Holders of all of the Notes,
then Holder shall hold in trust all such excess payments for the
benefit of the holders of the other Notes and shall pay such
amounts held in trust to such other holders upon demand by such
holders.
2. Prepayment
. Notwithstanding anything else set forth herein, the
Company may pre-pay this Note in whole or in part upon five days
prior written notice to Holder.
3. Use of
Proceeds . The proceeds of the Note will be used for
working capital and general corporate purposes.
4. Change of
Control . If, prior to the Maturity Date or
occurrence of an Event of Default, a Change of Control occurs, then
immediately prior thereto, this Note shall accelerate and the
Holder shall become immediately entitled to receive an amount equal
to the outstanding principal amount of the Note plus any and all
accrued but unpaid interest thereon as of the closing date of such
Change of Control transaction. For purposes hereof, a
“Change of Control” shall mean (i) a sale of all or
substantially all of the assets of the Company or all or
substantially all of the capital stock of the Company or (ii) a
merger, consolidation, sale, transfer or other transaction or
series of related transactions in which the holders of the capital
stock of the Company will hold, upon consummation of such
transaction, less than fifty percent (50%) of the voting securities
of the surviving entity, other than as a result of the
Company’s issuance of new securities in capital raising
transactions.
5. Events of
Default . The entire unpaid principal sum of this
Note, together with any and all interest accrued but unpaid
thereon, shall become immediately due and payable upon the
occurrence of an Event of Default. An “Event of
Default” shall be deemed to have occurred if:
(a) the
Company shall (i) apply for or consent to the
appointment of a receiver, trustee or liquidator of itself or of
its property, (ii) be unable, or admit in writing its inability, to
pay its debts as they mature, (iii) make a general assignment for
the benefit of creditors, (iv) be adjudicated a bankrupt or
insolvent, (v) file a voluntary petition in bankruptcy, or a
petition or answer seeking reorganization or an arrangement with
creditors to take advantage of any insolvency law, or an answer
admitting the material allegations of a bankruptcy, reorganization
or insolvency petition filed against it, (vi) take corporate action
for the purpose of effecting any of the foregoing, or (vii) have an
order for relief entered against it in any proceeding under the
United States Bankruptcy Code;
(b) An
order, judgment or decree shall be entered, without the
application, approval or consent of the Company by any court of
competent jurisdiction, approving a petition seeking reorganization
of the Company or appointing a receiver, trustee or liquidator of
the Company or of all or a substantial part of its assets, and such
order, judgment or decree
