ex10-2.htm


    Exhibit
10.2


    FORM OF UNSECURED PROMISSORY
NOTE

     

    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

    
       

      
        
          	
                  $____,000

                	
                  [Date]

                
	 
      	
                  Bethesda,
      MD

                


        



    

    1. Principal and
Interest.

     

    1.1 India
Globalization Capital, Inc., a Maryland corporation (the “Company”), for value
received, hereby promises to pay to the order of __________ or its assigns (the
“Investor” or the “Holder”) the amount of ____ Dollars ($____,000) plus
interest, as set forth hereinafter.

     

    1.2 This
Unsecured Promissory Note (the “Note”) shall bear interest from the date of
issuance of this Note until paid in full at a rate equal to six percent (6%) per
annum, accruing monthly in arrears.  This Note, including all interest
earned on the principal amount of 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).

     

    1.3 Payments
of both principal and interest 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.

     

    1.4 This Note
is issued pursuant to that certain Note and Share Purchase Agreement dated as of
________________ 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 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.

     

    2. Prepayment.  Notwithstanding
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.

     

    3. Use of
Proceeds.  The proceeds of the Note will be used for working
capital and general corporate purposes.

     

    4. 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.

     

    
      
        
        

      

      
        A-1

        
          

        

      

      
        
        

      

    

     

    5. 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 law, or an answer admitting the material allegations of a
bankruptcy, reorganization or insolvency petition filed against it, (vi) take
corporate action for the purpose of effecting any of the foregoing, or (vii)
have an order for relief entered against it in any proceeding under the United
States Bankruptcy Code;

     

    (b)           An
order, judgment or decree shall be entered, without the application, approval or
consent of the Company by any court of competent jurisdiction, approving a
petition seeking reorganization of the Company or appointing a receiver, trustee
or liquidator of the Company or of all or a substantial part of its assets, and
such order, judgment or decree shall continue unstayed and in effect for any
period of sixty (60) consecutive days; or

     

    (c)           the
Company shall fail to pay as and when due any principal or interest hereunder
and such nonpayment shall continue uncured for a period of thirty (30) business
days after written notice by the Holder thereof; or

     

    (d)           the
Company breaches any of its representations or warranties or fails to fulfill
any of its covenants or obligations pursuant to the Purchase
Agreement.

     

    6. Usury.  It
is the express intent of the Company and the Holder that the payment of all or
any portion of the outstanding principal balance of and accrued interest on this
Note be exempt from the application of any applicable usury law or similar laws
under any federal, state of foreign jurisdiction.  The Company hereby
irrevocably waives, to the fullest extent permitted by law, any objection or
defense which the Company may now or hereafter have to the payment when due of
any and all principal or accrued interest arising out of or relating to a claim
of usury or similar laws and the Company hereby agrees that neither it nor any
of its affiliates shall in the future bring, commence, maintain, prosecute or
voluntarily aid in any action at law, proceeding in equity or other legal
proceeding against the Holder based on a claim that the Company’s payment
obligations under this Note violate the usury or similar laws of any federal,
state or foreign jurisdiction.  Notwithstanding the foregoing, in the
event any interest is paid on this Note which is deemed to be in excess of the
then legal maximum rate, that portion of the interest payment representing an
amount deemed to be in excess of the then legal maximum rate shall be deemed a
payment of principal and applied against the principal of this
Note.

     

    7. 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 (5) business days after deposit if deposited in
the United States mail for mailing by certified mail, postage prepaid, and
addressed as follows:

     

    If to
Investor:  at the address indicated on the signature page
hereto.

    
       

      If to
Company:                      India
Globalization Capital, Inc.

      4336 Montgomery Avenue

      Bethesda,
MD  20814

      Attention:  Ram
Mukunda


       

      And


       

      PO Box 60642

      Potomac,
MD  20859


       

      Telecopier:  (240)
465-0273

      Phone:  (301)
983-0998

      Email:     ram@indiaglobalcap.com
and

      legal@indiaglobalcap.com

       

      With a
copy
to:                    Seyfarth
Shaw LLP

      815 Connecticut Avenue, N.W., Suite
500

      Washington,
D.C.  20006

      Attention:  Stanley S.
Jutkowitz

      Telecopier:  (202)
828-5393

      Phone:  (202)
828-3568

    

     

     

    Each of
the above addressees may change its address for purposes of this Section 7
by giving to the other addressee notice of such new address in conformance with
this Section 7.

     

    
      
        
        

      

      
        A-2

        
          

        

      

      
        
        

      

    

     

    8. Assignment.  The
rights and obligations of the Company and the 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 whom such rights, interests and obligations were assigned
shall have and exercise all of the Holder’s rights, interests and obligations
hereunder as if such person or entity were the original Holder of this
Note.

     

    9. 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 the Investors holding at least
seventy-five percent (75%) of the aggregate principal amount of the outstanding
Notes issued at the Initial Closing and any Subsequent Closings; provided, that
the Notes may not be amended or modified and no provision thereof may be waived
if such amendment, modification or waiver would adversely and prejudicially
affect the rights of an Investor vis-à-vis all other Investors without the
consent of such affected Investor.  No waivers of any term, condition
or provision of this Note, in any one or more instances, shall be deemed to be,
or construed as, a further or continuing waiver of any such term, condition or
provision or a waive of the same or any other term, condition provision or right
on any future occasion.

     

    10. 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.

     

    11. Accredited
Investor.  The Holder represents and warrants that he/she/it is
an “accredited investor” within the meaning of the Securities and Exchange Rule
501 of Regulation D, as presently in effect.

     

    12. Governing Law and Consent to
Jurisdiction.  This Note is being delivered in and 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.  The Company hereby consents to the jurisdiction of and venue
in any court of competent jurisdiction in New York.

     

    13. 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.

     

    14. 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.

     

    15. Waiver by the
Company.  The Company hereby expressly waives demand, notice,
presentment, protest, notice of dishonor and nonpayment of this Note, and all
other notices and demands of any kind in connection with the delivery,
acceptance, performance, default or enforcement hereof.

     

    16. Delays.  No
delay by the Holder in exercising any power or right hereunder shall operate as
a waiver of any power or right.

     

    17. 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.

     

    18. 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 the Holder of this Note against impairment.

     

    19. Expenses.  The
Company agrees to pay all of the Holder’s reasonable costs, fees and expenses,
if any (including reasonable counsel fees and expenses, costs of collection and
court costs), in connection with the enforcement of this Note.

     

    [REMAINDER
OF PAGE LEFT BLANK]

     

     

     

    
      
        
        

      

      
        A-3

        
          

        

      

      
        
        

      

    

     

    IN
WITNESS WHEREOF, the Company 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.

     

    
      INDIA
GLOBALIZATION CAPITAL, INC.

      a
Maryland corporation

       

      
         

        
          
            	
                    By

                  	
                    _____________________________

                  
	 	 
	
                    Print
      Name  

                  	
                    _____________________________

                  
	 	 
	
                    Title

                  	
                    _____________________________

                  


          

           

           

          
            Accepted
and Agreed to:

             

            INITIAL
HOLDER:

          

           

           

           

          
            	    ____________________________ 
      
	
                    Print
      Name of Holder 

                  
	 
      	 
      
	
                    By

                  	
                    _________________________

                  
	
                    (Signature)

                  
	 	 
	    
      ____________________________   
      
	
                    (Print
      Name, if signing on behalf of entity)

                  
	 	 


          

           

          
            	    
      _____________________________       
      
	
                    Title
      (if applicable)

                  


          

          
            	 	 
	 	 
	
                    Address:

                  	
                    _____________________________

                  
	 
      	
                    _____________________________

                  
	 
      	
                    _____________________________

                  


          

          

 

        

      

    

     

    
      
        
        

      

      
        A-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:                                                           

                  	 
      


          

          
                                                                                                                                                     

        

      

    

     

    
      	
              NOTE:

            	
              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.