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. THIS SECURITY AND
THE SECURITIES ISSUABLE UPON CONVERSION OF THIS SECURITY MAY BE
PLEDGED IN CONNECTION WITH A BONA FIDE MARGIN ACCOUNT OR OTHER LOAN
SECURED BY SUCH SECURITIES.
SECURED PROMISSORY
NOTE
|
$500,000.00
|
September 10, 2009
|
FOR VALUE RECEIVED, SwissINSO SA, a Swiss
corporation (the “ Maker ”), promises to pay to
the order of Pashminadepot.com, Inc., a Florida corporation, or its
successors or assigns (the “ Holder ”), upon the
terms set forth below, the principal sum of Five Hundred Thousand
Dollars ($500,000) (this “ Note ”). The
execution and delivery of this Note is a condition to the execution
and delivery of the Stock Purchase Agreement dated the date hereof
(the “ Purchase Agreement ”) among Maker, Holder
and the other parties signatories thereto. Defined terms not
otherwise defined herein shall have the meanings ascribed to such
terms in that Purchase Agreement.
(a) Unless an Event
of Default shall have previously occurred and be continuing, the
full amount of principal 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 Holder or Maker (or any successor in interest to or
parent thereof or any subsidiary thereof 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 or more (a “
Financing ”).
(b) There shall be no
interest payable on the outstanding principal amount of this Note.
Except as otherwise set forth in this Note, the Maker may not
prepay any portion of the principal amount of this Note without 10
day advance written notice to the Holder.
(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 with a view to arranging a composition, adjustment or
restructuring of its debts; or the Maker shall by any act or
failure to act expressly indicate its consent to, approval of or
acquiescence in any of the foregoing; or any corporate or other
action is taken by the Maker for the purpose of effecting any of
the foregoing;
(v) The Maker shall
default in any of its respective obligations under any mortgage,
credit agreement or other facility, indenture agreement, factoring
agreement or other instrument under which there may be issued, or
by which there may be secured or evidenced any indebtedness for
borrowed money or money due under any long term leasing or
factoring arrangement of the Maker or any subsidiary, whether such
indebtedness now exists or shall hereafter be created;
(vi) A breach or
threatened breach by the Maker of any representations, warranties,
covenants or agreements by Maker or a Seller in the Purchase
Agreement which is not cured within five business days after notice
thereof by the Holder; or
(vii) The Maker shall
(a) be a party to any Change of Control Transaction (as defined
below), (b) agree to sell or dispose all or in excess of 50% of its
assets in one or more transactions (whether or not such sale would
constitute a Change of Control Transaction), (c) redeem or
repurchase more than a de minimis number of shares of Common Stock
or other equity securities of the Maker, or (d) make any
distribution or declare or pay any dividends (in cash or other
property, other than common stock) on, or purchase, acquire,
redeem, or retire any of the Maker’s capital stock, of any
class, whether now or hereafter outstanding. “ Change of
Control Transaction ” means the occurrence of any of: (i)
an acquisition after the date hereof by an individual or legal
entity or “group” (as described in Rule 13d-5(b)(1)
promulgated under the Securities Exchange Act of 1934, as amended)
of effective control (whether through legal or beneficial ownership
of capital stock of the Maker, by contract or otherwise) of in
excess of 20% of the voting securities of the Maker, (ii) a
replacement at one time or over time of more than one-half of the
members of the Maker&r
