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EXHIBIT
10.4
THIS
NOTE HAS BEEN ACQUIRED FOR INVESTMENT AND NOT WITH A VIEW TO,
OR IN CONNECTION WITH, THE SALE OR DISTRIBUTION THEREOF IN
VIOLATION OF APPLICABLE SECURITIES LAWS, AND HAS NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933 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.
FORM PROMISSORY NOTE
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$
_________________
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_____________,
20__
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Bethesda,
MD
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FOR VALUE RECEIVED , India
Globalization Capital, Inc., a Maryland corporation (the “
Company
”), hereby promises to pay to the order of ____________ or
its assigns (“ Holder
”) the amount of _______________ ($____________) plus
interest, as hereinafter set forth.
This
Promissory Note (this “ Note
”) is issued pursuant to a Note Purchase Agreement dated
of even date herewith (the “ Purchase
Agreement ”) among the Company, Holder, and
certain other lenders who are signatories thereto (the “
Other
Lenders ”). This Note and the
Company’s payment obligations hereunder are secured
pursuant to the terms of that certain Pledge Agreement dated
of even date herewith among the Company, Holder, and the Other
Lenders.
The
provisions of this Note are a statement of the rights of
Holder and the conditions to which this Note is subject and to
which Holder, by the acceptance of this Note,
agrees.
1.
Principal and Interest .
1.1
This
Note shall bear simple interest from the date of issuance of this
Note until paid in full on the Maturity Date (as hereinafter
defined), at a rate equal to 5.00% per annum. This Note,
including all accrued but unpaid interest earned on the principal
amount of this Note, shall be due and payable on the earlier of (a)
one year from the date of the issuance of this Note or (b) 10
Business Days (as hereinafter defined) following the consummation
of a Business Combination (the “ Maturity Date
”). A “ Business
Combination ” means the acquisition by the Company or
any of its affiliates, whether by merger, capital stock exchange,
asset or stock acquisition or other similar type of transaction or
a combination of any of the foregoing, of one or more operating
businesses with its or their primary operations in India having
collectively, a fair market value of at least 80% of the
Company’s net assets at the time of such acquisition;
provided, that any acquisition of multiple operating businesses
shall occur contemporaneously with one another. If any payment
of principal or interest on this Note is due on a day that is not a
Business Day (as hereinafter defined), such payment shall be due on
the next succeeding Business Day, and such extension of time shall
be taken into account in calculating the amount of the interest
payable under this Note. “ Business Day
” means any day other than Saturday, Sunday, or legal Holiday
in New York.
1.2
Payments
of both principal and interest are to be made at the address of
Holder set forth in Section 5
below or at such other place in the United States as Holder shall
designate to the Company in writing, in lawful money of the United
Sates of America. Interest on this Note shall be
computed based on a 360-day year and actual days elapsed.
Upon
payment in full of this Note in accordance with this Section 1 ,
all rights with respect to this Note shall terminate, whether or
not the Note has been surrendered for cancellation, and the Company
will be forever released from all of its obligations and
liabilities under this Note.
1.3
Notwithstanding
anything else set forth herein, the Company may pre-pay this Note
in whole or in part at anytime and from time to time without
penalty. However, no pre-payment or payment-in-full of
this Note shall alter the rights of Holder under the Purchase
Agreement to receive IGC Shares (as defined thereunder) in
accordance with the terms and subject to the conditions set forth
in the Purchase Agreement.
1.4
Except
in the event of the approval of a Business Combination by a
majority of the shares of common stock issued by the Company in the
initial public offering of such stock (the “ Public
Offering ”), Holder agrees, acknowledges and accepts
that it shall not be entitled to repayment of this Note out of the
trust account holding the proceeds of the Public Offering and
hereby irrevocably and unconditionally waives any right, title or
interest in or to any payment out of such trust account
whatsoever.
2.
Assignment
. Subject to the restrictions on transfer described in
Section
4 hereof, the rights and obligations of the Company and
Holder of this Note shall be binding upon and benefit the
successors, assigns, heirs, administrators and transferees of the
parties. Effective upon any such assignment, the person
or entity to which such rights, interests and obligations were
assigned shall have and exercise all of Holder’s rights,
interests and obligations hereunder as if such person or entity
were the original Holder of this Note. Without limiting
the generality of the foregoing, the Company may assign this Note
and its rights, duties and obligations hereunder to India
Globalization Capital, Mauritius, Limited upon (a) the
dissolution (voluntarily or involuntarily) of the Company or
(b) the failure of a majority of the shares of common stock
issued by the Company in the Public Offering, to approve a Business
Combination at a meeting duly called for such purpose.
3.
Waiver
and Amendment . Any provision of this Note may be
amended, waived or modified (either generally or in a
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