ex10-4.htm


    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.

     

    


     

    INDIA
      GLOBALIZATION CAPITAL, INC.

     

    FORM
      PROMISSORY NOTE

     

    
      
        	
                $_________________

              	
                _____________,
                  20__

              
	 	
                Bethesda,
                  MD 

              


      

       

    

     

     

    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”), Holder 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.

    4336
      Montgomery Avenue

    Bethesda,
      MD  20814

    Attention:  Ram
      Mukunda

    


    and

    


    P.O.
      Box 60642

    Potomac,
      MD  20859

    


    Telecopier:  (240)
      465-0273

    Phone:  (301)
      983-0998

    Email:  ram@indiaglobal.com

    


    With
      a
      copy
      to:                                
Shulman, Rogers, Gandal, Pordy & Ecker, P.A.

    11921
      Rockville Pike, Suite
      300

    Rockville,
      MD 20852

    Attention:  Scott
      Museles

    Telecopier:  (301)
      230-5200

    Phone:  (301)
      230-2891

     

    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 Holder 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 Holder’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.  Holder 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 Holder 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.

     

    INDIA
      GLOBALIZATION CAPITAL, INC.

    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:                                                                                            
     

     

    
      	
              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. 

            


    

     

    


     

    


    
      
        
        

      

      
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