Exhibit 4.21


 


THIS
UNSECURED CONVERTIBLE PROMISSORY
NOTE HAS NOT BEEN REGISTERED UNDER
THE SECURITIES ACT
OF 1933, AS AMENDED (THE “SECURITIES
ACT”), OR APPLICABLE STATE
SECURITIES LAWS. THIS NOTE MAY
NOT BE SOLD, OFFERED
FOR SALE, ASSIGNED,
PLEDGED OR HYPOTHECATED IN THE
ABSENCE OF AN
EFFECTIVE REGISTRATION STATEMENT AS TO THIS NOTE UNDER THE SECURITIES ACT AND
APPLICABLE STATE SECURITIES LAWS OR AN OPINION OF COUNSEL OR OTHER EVIDENCE
REASONABLY SATISFACTORY TO BLUENRGY
GROUP LIMITED THAT SUCH
REGISTRATION IS NOT REQUIRED.


 


UNSECURED
CONVERTIBLE PROMISSORY NOTE

REPLACES CONVERTIBLE
PROMISSORY NOTE BETWEEN THE BELOW PARTIES

ISSUED NOVEMBER 30, 2015


 


	Maximum Principal
    Amount:	Issue Date: June 30,
    2016
	 	 
	$2,500,000.00	Maturity Date: October
    30, 2017
	 	 
	 	Sydney, Australia









 


FOR
VALUE RECEIVED, BlueNRGY
Group Limited an Australian
Company (the “Payor”),
hereby promises to
pay, on or
prior to the
Due Date, to
the order of
WHI, Inc., for itself and as agent
for its affiliates, WHI Retirement Savings Plan Trust and WHIRSP – Columbus LLC,
(collectively the “Lender”), at such place as the Lender may designate,
in lawful money of the United
States, the principal amount
of Two Million Five Hundred Thousand
U.S. Dollars ($2,500,000.00), or such lesser amounts as may be outstanding under this
Note as evidenced by the Draw Certificate, together
with interest thereon calculated from the earlier of the date hereof or the date of
funding of each Draw (as applicable) plus all other Note Obligations, payable in accordance
with the provisions
of this Note.


 


1. Definitions.


 


1.1
“Change of Control
Event” means that
a person or
group of Persons
acting in concert acquires
or gains the right
to vote 20% or more
of the Payor’s
ordinary shares or
obtains the right to
appoint two or
more members to
Payor’s Board of
Directors.


 


1.2
“Conversion Date” shall
mean the date
on which the
Lender delivers the
Exercise Notice together with
the original Note
or the date on
which an automatic
conversion is triggered under this
Section 4.


 


1.3
“Conversion Price” means $3.028, which amount shall be automatically adjusted
proportionally for any
share split or
share consolidation effected
by Payor.


 


1.4
“Draw Amount” means
the initial funding
by Lender hereunder or any
subsequent funding, each such
occurrence a “Draw”.


 


1.5 “Draw
Cap” means the
maximum principal amount
that may be funded
under this Note. The Draw
Cap is not
a commitment from Lender. Lender
may, in its
sole discretion, elect not
to fund any
Draw request for
any reason or
no reason.


 


1.6
“Draw Certificate” means
that certain schedule,
updated from time
to time and signed
by Lender and Payor,
evidencing the initial
amount funded by Lender
and the amount funded
under each subsequent draw (if any),
as well as any repayments of principal or interest that have
occurred subsequent to the initial
funding hereunder.


 






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1.7
“Due Date” means
the latest permitted
Repayment Date and
is the date
on which all outstanding
Note Obligations become
payable in full.


 


1.8
“Exercise Notice” means
a written notice
delivered to Payor
in accordance with Section
7 hereof specifying the
dollar amount of
Note Obligations that
Lender has determined to exchange
for Payor’s ordinary shares (“Conversion Amount”) in accordance with Section 3 hereof.


 


1.9
“Note” means this
Note as originally
executed or if later
amended, modified, supplemented or
replaced then, as
so amended, modified,
supplemented or replaced.


 


1.10
“Note Obligations” means all principal aggregated from all Draws, interest (including interest which accrues
after the commencement of any case or proceeding in bankruptcy of
the Payor), fees
(including the Commitment
Fee, if any),
charges, expenses and any
other sum chargeable
to the Payor
pursuant to the
terms of this
Note.


 


1.11
“Person” means an individual,
partnership, corporation, limited
liability company, association, joint stock
company, trust, joint venture,
unincorporated organization or governmental entity
or any department,
agency or political
subdivision thereof.


 


1.12
“Repayment Date” means
the earlier of
(a) October 30, 2017
(the “Maturity Date”),
(b) the date
on which there
is an occurrence
of a default
pursuant to Section
5 hereof or
(c) the date on which there is a
Change of Control Event. If the Payor’s
Board of Directors determines in good
faith within 30
days of the
Maturity Date that
Payor cannot reasonably
repay the Note Obligations without
jeopardizing the viability of Payor’s business Payor may extend the Maturity Date for up to 6 months (the “Extension
Period), subject to reaching mutual agreement with Lender on a revised interest rate, representative of a market rate, to be
applicable during the Extension Period.


 


2. Draws;
Funding.


 


2.1
Any authorized representative
of Payor may
request a Draw
at any time
prior to the Maturity
Date in such
amount as would
not cause the
Draw Cap to
be exceeded.


 


2.2
Lender, in its sole
discretion, shall determine
whether and when
to fund any Draw request
of Payor and
may decline to
do so for
any reason or
no reason.


 


2.3
Lender is not
obligated to provide
funding up to
the Draw Cap
or in any
specific amount.


 


2.4
Funding may be made by Lender in any manner convenient, including wire transfer, check
or ACH or other means
of electronic transfer to any
account of Payor or its subsidiaries.


 


2.5
Upon receipt of funding of any Draw, the Draw amount shall be promptly reflected in
an updated Draw
Certificate signed by
a representative of
Payor.


 


3. Payments;
Prepayments.


 


3.1 Interest.
In the absence of an event of default, interest shall accrue at an annual
rate of fifteen percent (15%) on the unpaid principal amount of this Note outstanding from time-
to-time from the funding date
or dates shown on the Draw Certificate
until the principal and interest amount of
this Note is paid in full. Interest shall accrue on
the basis of a 365 day year and shall compound
monthly. Upon an event of default,
interest on the unpaid balance of any
outstanding Note Obligations shall accrue at a default rate that is 500 basis points per annum higher than the
interest rate until paid or the
default is cured (if cure is possible).


 






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3.2
Payment Date. Unless this Note is converted into ordinary shares (the “Conversion
Shares”) in accordance with
the terms hereof,
or is otherwise sooner paid,
the principal amount evidenced
by this Note
together with accrued
interest thereon and
all Other Note Obligations
shall be due and
payable on the Repayment Date. All
payments hereunder shall be made in lawful money of the United States at such address
as the Lender shall specify from time to
time in writing to
the Payor.


 


3.3
Pre-Payments. The principal indebtedness
of this Note,
or any portion
thereof, together with interest
and all other
Note Obligations related
thereto, may be prepaid
prior to the Repayment Date upon 5 business days written notice by the Payor.
Each and all such prepayments shall be
reflected on an
updated Draw Certificate.


 


3.4
Null and Void. This
Note shall become
null and void
upon repayment of
all Note Obligations (i)
in accordance with Section
2.2 hereof; (ii)
through conversion in accordance
with Section 3
hereof; or (iii)
through a combination
of repayments and
conversions.


 


4. Conversion.


 


4.1
Lender Conversion Option. At the option of the Lender, this Note or any fractional amount
thereof is convertible
into ordinary shares
of BlueNRGY Group
Limited at any time or
at multiple times
prior to the
Repayment Date by
delivery of an
Exercise Notice to
Payor.


 


4.2
Mechanics of Conversion. Upon
delivery of an
Exercise Notice, the
Payor shall promptly issue
to Lender a number
of ordinary shares
(“Conversion Shares”)
determined by dividing the
Conversion Amount by the
Conversion Price (as adjusted). The
“Conversion Date” shall be
the date on
which the Lender
is deemed to have delivered the
Exercise Notice in accordance
with Section 7 hereof. As promptly
as reasonably practicable
on or after the Conversion
Date, but in no case
longer than 10
business days following
the Conversion Date, the Company
shall issue all Conversion Shares to which Lender is entitled as a result of
delivery of any Exercise Notice. For purposes of Payor’s rights under Section 2.3
hereof, any conversion of the Note shall
be deemed to have been effected immediately
prior to the close of business on
the Conversion Date.


 


4.3
At such time Conversion Shares are actually issued to Lender or Lender’s designee, the Conversion Amount shall be reflected
on an updated Draw Certificate as a reduction in outstanding
Note Obligations and
the rights of the
Lender under the
Note shall cease with
respect to the applicable
Conversion Amount. The failure
of the Company to make
the deliveries as aforesaid shall
not impair or delay
Lender’s right to effect
conversion of any Conversion Amount
pursuant to this
Section 4.


 


5. Assignment.


 


5.1 Except
as otherwise provided
herein, the terms
and conditions of
this Agreement shall inure
to the benefit of and
be binding upon the
parties hereto and
the respective successors and
assigns of the parties.
Nothing in this Agreement, express or
implied, is intended to confer upon any party, other than the parties hereto or their respective successors and assigns, any rights,
remedies, obligations or liabilities under or by reason of this Agreement, except as expressly provided
in this Agreement.


 






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5.2
Lender may unilaterally
assign this Note
in whole or
in part only
if the assignee represents
and warrants to Lender
and Payor that
assignee: (i) is an
accredited investor within
the meaning of the Securities
Act; (ii) is aware
of and can tolerate
the risk of loss
applicable to the Note and Conversion Shares; (iii) is acquiring the Note for
assignee’s own account for investment purposes
only and not
with a view
to resale or distribution.


 


5.3
If Lender elects
to make a
unilateral assignment of
the Note in
whole or in
part, Payor shall issue
a new Note reflecting
the Note Obligations
payable to Lender and
assignee respectively.


 


6. Default.


 


6.1. Payor’s
failure to pay
principal or any
interest or other
Note Obligation on
this


 


Note within
five (5) days
after the Due
Date shall be
deemed an event
of default.


 


6.2.
Payor shall fail
to issue any
Conversion Shares required
to be issued
pursuant to Section 3
hereof within 10
business days following
the delivery of an
Exercise Notice shall
be deemed an event of default.


 


6.3. If:


 


(i) the
Payor shall commence
any voluntary proceeding
under any bankruptcy, reorganization,
arrangement, insolvency, readjustment
of debt, receivership, voluntary or involuntary appointment of an administrator,
dissolution, or liquidation law or
statute of any
jurisdiction, whether now
or hereafter in effect; or the Payor
shall be adjudicated insolvent or
bankrupt by a decree of a court
of competent jurisdiction; or the
Payor shall petition or apply
for, acquiesce in, or consent to,
the appointment of any
receiver or trustee of the Payor or
for all or a substantial part of the property of the Payor; or the Payor shall make
an assignment for the
benefit of creditors; or the Payor
shall admit in writing its inability
to pay its debts as
they mature; or


 


(ii) there
shall be commenced
against the Payor
any proceeding relating
to the Payor under any bankruptcy, reorganization, arrangement, insolvency, readjustment
of debt receivership, dissolution,
or liquidation law or statute
of any jurisdiction, whether now
or hereafter in effect, and
any such proceeding
shall remain undischarged for a period of sixty (60) days or the Payor by any act indicates
its consent to, approval of, or acquiescence
in, any such proceeding;
or a receiver or trustee shall be appointed for the Payor or for all or a substantial part of
the property of
the Payor and any
such receivership or trusteeship
shall remain undischarged for a period of sixty (60) days; or a warrant of attachment,
execution, or similar process
shall be issued against any
substantial part of
the property of the Payor and
the same shall not
be dismissed or bonded within sixty (60) days after levy;


 


then
in the event
of (i) or
(ii) above, the
Lender may, by
written notice to
the Payor declare an event
of default, and the
same shall, unless
such default shall
be cured within five
(5) days after
such notice, be deemed
an event of default for purposes
hereof.


 


7. Limited
Recourse. No recourse shall be had for payment of any part of the Note
Obligations against any present or future officer or director of the Payor by virtue of any law, or
by enforcement of any assessment, or
otherwise, or against any present or
future manager, agent, officer or director of the Payor, all such liability being, by the acceptance hereof and as a part of
the consideration for the issue hereof, expressly released, it being agreed by the
Lender to limit its recourse for collection
of the Note Obligations to
the Payor and its assets.


 






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8. Notices. Except
as may be otherwise provided herein, all notices and other communications required
or permitted hereunder shall
be in writing and shall
be conclusively deemed to have
been duly given
(a) when hand
delivered to the
party; (b) when
received when sent by
electronic mail or facsimile
on a business day
at the address
and number set
forth below, subject to
digital or electronic receipt
of acknowledgement from recipient; (c) five
(5) business days after deposit in the U.S. or Australian mail with first class
or certified mail (receipt requested) postage prepaid and addressed to the party as
set forth below; or (d) if deposit with a national
overnight delivery service,
delivery charges prepaid,
addressed to the party
as set forth below with the
delivery guaranteed, on such date as provided
that the sending
party receives a confirmation of
delivery from the delivery service
provider.


 





	If to Lender: 	c/o WHI Inc.
	 	410 S. Michigan Ave.; Suite 620
	 	Chicago, IL 60605
	 	USA
	 	Attn: William Morro
	 	Facsimile: 312-
	 	E-mail: westernheadinvestments@yahoo.com
	 	 
	If to Payor:	 
	 	BlueNRGY Group Limited
	 	32 Martin Place, 11th Floor
	 	Sydney, 2000, NSW AUSTRALIA
	 	Attn: Chief Financial Officer 
	 	e-mail: richard.pillinger@bluenrgy.com






 


Each
Person making a communication
hereunder by facsimile
or e-mail shall
promptly confirm by telephone
to the Person to whom
such communication was
addressed each communication made
by it by facsimile
pursuant hereto, but
the absence of
such confirmation shall not affect
the validity of any
such communication. A party
may change or supplement the addresses given above, or designate additional
addresses, for purposes of this Section 8 by giving the other party written notice of
the new address in the manner set
forth above.


 


9. Registration
Rights.


 


9.1 Unless
Noteholder is otherwise
permitted to sell
the Conversion Shares
pursuant to Rule 144
or any successor
rule or another
applicable exemption, Noteholder
shall be entitled to
the same registration rights
for the Conversion Shares as purchasers
of Securities in the Offering referenced
in the Company’s November 12, 2015 filing with the U.S. Securities and Exchange Commission on Form 6-K.


 






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10. Miscellaneous.


 


10.1
Lost or Destroyed Note. Upon
receipt by the
Payor of evidence reasonably satisfactory
to the Payor
of the loss,
theft, destruction or
mutilation of this
Note, and in
the case of any
such loss, theft
or destruction, upon delivery of an
indemnity reasonably satisfactory to the Payor or,
in case of any
such mutilation, upon surrender and cancellation of
this Note, the Payor will issue a
replacement Note of like tenor in
lieu of this Note.


 


10.2
Severability. Wherever possible, each
provision of this
Note shall be
interpreted in such manner
as to be
effective and valid
under applicable law,
but if any
provision of this Note
shall be prohibited by or invalid under
applicable law, such provision shall
be ineffective to the extent of such prohibition or invalidity,
without invalidating the remainder of such provision or
the remaining provisions of this Note.


 


10.3
Waiver. The Payor hereby waives presentment, demand, protest, notice of dishonor, diligence
and all other notices,
any release or discharge
arising from any
extension of time, discharge
of a prior
party, or other
cause of release
or discharge other
than actual payment in
full hereof.


 


10.4
Rights. Lender shall not
be deemed, by
any act or
omission, to have
waived any of its
rights or remedies
hereunder unless such
waiver is in
writing and signed
by Lender and then
only to the
extent specifically set forth in
such writing. A waiver with
reference to one event shall not be construed as continuing or as a bar to or
waiver of any right or remedy as to a subsequent event. No delay or omission
of Lender to exercise any right,
whether before or after a Default
hereunder, shall impair any such right or shall be construed to be a waiver
of any right or Default, and the acceptance at any time by Lender of any past-due amount shall not be deemed
to be a waiver of the right to require prompt payment
when due of any other amounts then or thereafter due and payable.


 


10.5
Amendment. No amendment of this
Note (either generally or
in a particular instance
and either retroactively
or prospectively) may
be made other
than by written
consent of the Payor
and the Lender.


 


10.6
Remedies. The remedies of
Lender as provided
herein shall be cumulative
and concurrent, and may
be pursued singularly,
successively or together
at Lender’s sole
discretion, and may be
exercised as often as
occasion therefor shall occur.


 


10.7
Interest. If any provisions
of this Note
would require the
Payor to pay
interest hereon at a rate
exceeding the highest
rate allowed by
applicable law, the
Payor shall instead
pay interest under this
Note at the
highest rate permitted
by applicable law.


 


10.8
Governing Law. This Note
shall be governed
by and construed
in accordance with the
laws of Australia, without
giving effect to any
choice or conflict of law
provision or law that would
cause the application
of the laws
of any jurisdiction
other than Australia.


 


---------
Signature Page Follows
---------


 






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IN
WITNESS WHEREOF, the
Payor has caused
this Note to
be executed on
its behalf by its
duly authorized signatory.


 


	BLUENRGY GROUP LIMITED	 
	 	 	 
	By:		 
	 	Richard Pillinger	 
	 	 	 
	Its:	Chief Financial Officer and Authorized Representative	 
	 	 	 
	By:	 	 
	 	Carlo Botto	 
	Its:	Director	 






 






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Draw
Certificate


WHI,
Inc. (for itself
and as agent
for its affiliates) Draw
Cap = Five
Million Five Hundred Thousand U.S. Dollars
($2,500,000.00) Updated as of
June 30, 2016


 


	 	 	Draw Amounts/(Repayment Amounts)
 (U.S. Dollars)
	Draw / Repayment	 	Principal	 	Interest
	January 28, 2015	 	$	40,000	 	 			 
	January 30, 2015	 	$	50,000	 	 	 		 
	April 08, 2015	 	$	95,000	 	 	 		 
	April 14, 2015	 	$	99,000	 	 	 		 
	July 13, 2015	 	$	99,000	 	 	 		 
	July 14, 2015	 	$	99,000	 	 	 		 
	July 20, 2015	 	$	221,581	 	 	 		 
	August 13, 2015	 	$	30,000	 	 	 		 
	August 28, 2015	 	$	80,000	 	 	 		 
	September 11, 2015	 	$	50,000	 	 	 		 
	September 14, 2015	 	$	99,000	 	 	 		 
	December 10, 2015	 	$	99,000	 	 	 		 
	January 05, 2016	 	$	115,000	 	 	 		 
	January 26, 2016	 	$	100,000	 	 	 		 
	January 27, 2016	 	$	40,000	 	 	 		 
	February 04, 2016	 	$	99,000	 	 	 	 	 
	June 29, 2016	 	$	133,000	 	 	 	 	 
	 	 	 	 	 	 	 	 	 
	Cumulative Amount	 	$	1,548,581	 	 	 	 	 




 


	Initials - Payor	 	 	Initials - Lender






 


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