Contract
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.
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
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”), Xxxxxx 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 particular instance, either retroactively
or prospectively, and either for a specified period of time or indefinitely),
upon the written consent of the Company and of Holder.
4. Transfer
of This
Note. With respect to any offer, sale or other disposition of
this Note, which in any case shall be subject to the terms and conditions set
forth in the Purchase Agreement, Holder will give written notice to the Company
prior thereto, describing briefly the manner thereof. Unless the
Company reasonably determines that such transfer would violate applicable
securities laws, and notifies Holder thereof within 10 Business Days after
receiving notice of the transfer, Holder may effect such transfer, subject
to
the Purchase Agreement. Each Note thus transferred and each
certificate representing the securities thus transferred shall bear a legend
as
to the applicable restrictions on transferability in order to ensure compliance
with the Securities Act, unless in the opinion of counsel for the Company such
legend is not required in order to ensure compliance with the Securities
Act. The Company may issue stop transfer instructions to its transfer
agent in connection with such restrictions.
5. Notices. Any
notice, request, other communication or payment required or permitted hereunder
shall be in writing and shall be deemed to have been given upon delivery if
personally delivered, or five Business Days after deposit if deposited in the
United States mail for mailing by certified mail, postage prepaid, and addressed
as follows:
If
to
Company: India
Globalization Capital, Inc.
0000
Xxxxxxxxxx Xxxxxx
Bethesda,
MD 20814
Attention: Xxx
Xxxxxxx
and
P.O.
Box 60642
Potomac,
MD 20859
Telecopier: (000)
000-0000
Phone: (000)
000-0000
Email: xxx@xxxxxxxxxxx.xxx
With
a
copy
to:
Xxxxxxx, Xxxxxx, Xxxxxx, Xxxxx & Xxxxx, P.A.
00000
Xxxxxxxxx Xxxx, Xxxxx
000
Rockville,
MD 20852
Attention: Xxxxx
Xxxxxxx
Telecopier: (000)
000-0000
Phone: (000)
000-0000
If
to
Holder: At
the address indicated on the signature page hereto.
Each
of
the above addressees may change its address for purposes of this Section 5 by
giving to the other addressee notice of such new address in conformance with
this Section
5.
2
6.
Loss, Theft or
Destruction of Note. Upon receipt by the Company of evidence
reasonably satisfactory to it of the loss, theft or destruction of this Note
and
of indemnity or security reasonably satisfactory to it, the Company will make
and deliver a new Note which shall carry the same rights to interest (unpaid
and
to accrue) carried by this Note, stating that such Note is issued in replacement
of this Note, making reference to the original date of issuance of this Note
(and any successors hereto) and dated as of such cancellation, in lieu of this
Note.
7.
Usury
Disclosure. Regardless of any provision contained in this
Note, it is expressly stipulated and agreed that the intent of Xxxxxx and the
Company is to comply at all times with all usury and other laws relating to
this
Note. If the laws of the State of Maryland would now or hereafter
render usurious, or are revised, repealed or judicially interpreted so as to
render usurious, the indebtedness evidenced by this Note, or if any prepayment
by the Company results in the Company’s having paid any interest in excess of
that permitted by law, then it is Xxxxxx’s and the Company’s express intent that
all excess amounts theretofore collected by Holder be credited to the principal
balance of this Note (or, if this Note has been paid in full, refunded to the
Company), and the provisions of this Note immediately be deemed reformed and
the
amounts therefor collectible hereunder reduced, without the necessity of
execution of any new document, so as to comply with the then applicable law,
but
so as to permit the recovery of the fullest amount otherwise called for
hereunder.
8.
Accredited
Investor. Xxxxxx represents and warrants that he/she/it is an
“accredited investor” within the meaning of the Rule 501 of Regulation D
promulgated under the Securities Act of 1933 as amended and as presently in
effect.
9.
Governing
Law. This Note is being delivered in, for all purposes shall
be construed in accordance with, and governed by the laws of the State of
Maryland, without regard to the conflicts of laws provisions
thereof.
10. Issue
Date. The provisions of this Note shall be construed and shall
be given effect in all respects as if this Note had been issued and delivered
by
the Company on the earlier of the date hereof or the date of issuance of any
Note for which this Note is issued in replacement. This Note shall be
binding upon any successors or assigns of the Company.
11.
Heading;
References. All headings used herein are used for convenience
only and shall not be used to construe or interpret this Note. Except
as otherwise indicated, all references herein to Sections refer to Sections
hereof.
12.
Waiver by the
Company. The Company hereby waives demand, notice,
presentment, protest and notice of dishonor.
13. Delays. No
delay by Xxxxxx in exercising any power or right hereunder shall operate as
a
waiver of any power or right.
14.
Severability. If
one or more provisions of this Note are held to be unenforceable under
applicable law, such provision shall be excluded from this Note and the balance
of the Note shall be interpreted as if such provision were so excluded and
shall
be enforceable in accordance with its terms.
15.
No
Impairment. The Company will not, by any voluntary action,
avoid or seek to avoid the observance or performance of any of the terms to
be
observed or performed hereunder by the Company, but will at all times in good
faith assist in the carrying out of all the provisions of this Note and in
the
taking of all such action as may be necessary or appropriate in order to protect
the rights of Holder of this Note against impairment.
*
* *
*
3
IN
WITNESS WHEREOF, the undersigned has caused this Note to be executed in its
corporate name and this Note to be dated, issued and delivered, all on the
date
first above written.
a
Maryland corporation
By:
Print
Name:
Title:
Accepted
and Agreed to:
HOLDER:
Print Name of Holder
By:
(Signature)
(Print Name, if signing on behalf of entity)
Title
(if
applicable)
Address:
4
ASSIGNMENT
FORM
(To
Assign the foregoing Note, execute
this
form
and supply required information.)
FOR
VALUE
RECEIVED, an interest corresponding to the unpaid principal amount of the
foregoing Note and all rights evidenced thereby are hereby assigned
to
(Please
Print)
whose
address is
Dated:
Holder’s
Signature:
Holder’s
Address:
Signature
Guaranteed:
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NOTE:
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The
signature to this Assignment Form must correspond with the name as
it
appears on the face of the Note, without alteration or enlargement
or any
change whatever, and must be guaranteed by a bank or trust company.
Officers of corporations and those acting in a fiduciary or other
representative capacity should file proper evidence of authority
to assign
the foregoing Note.
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