Exhibit
10.2
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
|
$2,120,000
|
October 5, 2009
|
|
|
Bethesda, MD
|
A. Principal and
Interest .
1. India
Globalization Capital, Inc., a Maryland corporation (the
“Company”), for value received, hereby promises to pay
to the order of Steven M. Oliveira 1998 Charitable Remainder
Unitrust or its assigns (the “Investor” or the
“Holder”) the amount of Two Million One Hundred Twenty
Thousand Dollars ($2,120,000), as set forth hereinafter.
2. This Unsecured
Promissory Note (the “Note”) shall bear no interest
from the date of issuance of this Note until paid in
full. 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).
3. Payments of
principal 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.
4. This Note is
issued pursuant to that certain Note and Share Purchase Agreement
dated as of October 5, 2009, 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 or referenced in 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.
B. Prepayment
.
1. N otwithstanding 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.
2.2 If the Company (a) closes
on any equity or debt financing (other than one or more lines of
credit for its or its subsidiaries’ operating businesses)
after November 5, 2009 or (b) is paid on claims with respect to
payments on road building contracts where the proceeds of any such
claims are repatriated to United States Dollars, which claims the
Company will use its best efforts to secure, then the Company will
use twenty percent (20%) of either (x) the proceeds of such
financing or (y) such repatriated funds, in either case, in excess
of Five Hundred Thousand Dollars, to pre-pay the principal amount
due under this Note.
C. Use of
Proceeds . The proceeds of the Note will be used for
working capital and general corporate purposes.
D. 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.
E. 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 la
