Exhibit 10.1


 





THIS
PROMISSORY NOTE
(THIS “NOTE”)
HAS NOT
BEEN REGISTERED
UNDER THE
SECURITIES ACT OF
1933, AS AMENDED
(THE “ACT”),
APPLICABLE STATE SECURITIES
LAWS, OR
APPLICABLE LAWS
OF ANY
FOREIGN JURISDICTION.
THIS NOTE
HAS BEEN
ACQUIRED FOR
INVESTMENT AND
NOT WITH
A VIEW TO
DISTRIBUTION OR
RESALE, AND
MAY NOT
BE OFFERED,
SOLD, PLEDGED, HYPOTHECATED, RENOUNCED
OR OTHERWISE TRANSFERRED
IN THE ABSENCE
OF AN
EFFECTIVE REGISTRATION
STATEMENT UNDER
THE ACT
AND ANY APPLICABLE
STATE SECURITIES
LAWS AND
IN THE
ABSENCE OF
COMPLIANCE WITH APPLICABLE
LAWS OF ANY
FOREIGN JURISDICTION, OR THE AVAILABILITY OF
AN EXEMPTION FROM
THE REGISTRATION PROVISIONS OF
THE ACT AND
APPLICABLE STATE SECURITIES
LAWS.


 


PROMISSORY
NOTE





	$	2/25/2015






FOR
VALUE RECEIVED,
InterCloud Systems, Inc.,
a Delaware corporation
with a place
of business
at 1030 Broad Street, Suite 102, Shrewsbury, New
Jersey 07702 (“Company”),
promises to pay
to the order
of ___________,
together with
its assignees,
transferees and
successors in
interest (collectively,
“Holder”), in lawful
money of
the United States
of America the
principal sum of
___________ Dollars ($ ), together
with 3% interest per
annum on such principal sum (the “Interest
Rate”). All unpaid principal, together with any accrued and unpaid
interest, and all expenses, fees and other amounts payable hereunder, shall be due and payable on the earliest of: the
Maturity Date, as defined
below or (ii) the date
on which
such amounts are due and payable upon
or after the occurrence of an Event of Default, as defined below, provided that prior to repaying this Note, the Company shall
obtain from Holder the
written statement of
whether Holder chooses to be repaid or waive such
default (in which case the Note would remain outstanding). The Maturity Date for this Note (the “Maturity Date”)
shall initially be January 1, 2018.


 


This Note is
subject to the terms, conditions and
provisions set forth below:


 


1.            
Definitions. As used
in this Note,
the following
capitalized terms
have the following
meanings:


 


“Common
Stock” means
Company’s issued
and outstanding common
stock as registered
under the Securities Act and
traded on any Trading Market.


“Event of Default” has the meaning
given in Section 4 hereof.


 



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“Fundamental Transaction” means any transaction or series of related transactions whereby the Company, directly or indirectly, effects a (i) merger or consolidation of the  Company  with  or  into  another  Person,  (ii)  sale,  lease,  license,  assignment,  transfer,
conveyance or other disposition of all or substantially all of its assets, (iii) purchase
offer, tender offer or exchange offer (whether by the Company or another Person) that is completed pursuant to which holders of shares of Common Stock are permitted to sell, tender or exchange their shares for other
securities, cash or property, (iv) reclassification, reorganization
or recapitalization of the Common Stock
or any compulsory share exchange
pursuant to which all outstanding shares of
Common Stock are effectively converted into or exchanged
for other securities, cash or property, or (v) consummation
of the transactions contemplated by a stock or
securities purchase agreement or other business
combination (including, without limitation,
a reorganization, recapitalization, spin-off or scheme of arrangement) with another Person
whereby such other Person acquires more than 50% of the outstanding shares of Common Stock (not including
any shares of Common Stock
held by the other
Person or other Persons
making or party to, or associated or affiliated
with the other Persons making or
party to, such stock or share purchase
agreement or other business
combination).


 


“Maximum Rate” has the
meaning given in Section 2
hereof. 


“New Note”
has the meaning given
in Section 8 hereof.



“Note Register” has
the meaning given in
Section 8 hereof.


“Obligations”
 shall  mean 
and  include 
any  and 
all  loans,  advances, 
debts, liabilities and
obligations, howsoever
arising, owed by
Company to Holder
of every kind
and description (whether
or not evidenced
by any note
or instrument
and whether or
not for the
payment of money), now existing or hereafter
arising under or
pursuant to the terms of this
Note.


 


“Person”
shall mean
and include an
individual, a
partnership, a
corporation (including
a business trust),
a joint stock
company, a
limited liability
company,  an
unincorporated association, a joint venture or other
entity or a governmental authority.


 


“Securities
Act” means the Securities
Act of 1933, as amended.


 


“Trading
Day” means
(i) a day
on which the
Common Stock
is traded
on a
Trading Market, or
(ii) if the
Common Stock
is not quoted
on a Trading
Market, a day
on which the
Common Stock is
quoted in the
over-the-counter market
as reported by
the Pink Sheets,
LLC (or any similar organization
or agency succeeding to its functions of reporting prices).


 


“Trading Market”
means whichever of the New York Stock Exchange, the NYSE AMEX,
the NASDAQ Capital
Market, the NASDAQ
Global Market, the
NASDAQ Global Select Market, or OTC Bulletin
Board on which the Common Stock is listed
or quoted for trading on the date in question.


 



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2.             Interest; Maximum Rate.
Interest on this Note shall accrue at the Interest Rate, beginning on the
date hereof, and be
payable upon the Maturity Date. Any amounts not paid when due under this Note shall accrue interest at the rate of 20% per annum until such past due amounts have been paid in full. It is expressly agreed
and provided that the total liability of Company under this Note for payments in the nature of interest shall
not exceed the maximum lawful
rate authorized under applicable law (the “Maximum Rate”), and, without limiting the
foregoing, in no event shall any rate of interest or default interest,
or both of them,
when aggregated with any other sums in the nature of interest that Company
may be obligated to pay under this
Note exceed such Maximum Rate. It is agreed that if the maximum contract rate of interest allowed
by law and applicable to this Note is increased or decreased
by statute or any official governmental
action subsequent to the date hereof, the new maximum
contract rate of interest allowed by
law will be the Maximum Rate
applicable to this Note from the effective
date forward, unless such application is precluded by applicable law. If
under any circumstances whatsoever, interest in excess of the Maximum Rate
is paid by Company to Holder with respect to indebtedness evidenced
by this Note, such excess shall be applied by Holder to all other unpaid
portions of the Obligations or be refunded to
Company at the election of Holder.


 


3.             No Prepayment; Order
of Payments.
This Note may
be prepaid in
full or in
part at
any time
and without
the prior
written consent
of Holder. All
payments received
hereunder shall
be applied
first to the
payment of accrued
interest and any
fees or expenses
payable hereunder and the balance applied
to the unpaid
principal balance then outstanding.


 


4.          
  Events of Default. The occurrence of any of the following shall constitute an “Event
of Default” under this Note:


 


(a)               
Failure to
Pay. Company
shall fail
to pay
when due any
principal, interest, expenses,
fees and other
amounts payable hereunder on
the applicable due date;


 


(b)              
Failure to
Perform.
Company shall fail
to perform
any of its
obligations under this Note when
due;


 


(c)              
Breach. Any of the representations made by
Company in this
Note shall
be false or misleading
in any material respect;


 


(d)              
Change of
Control.
Company (i)
shall initiate
or participate
in any
Fundamental Transactions
or (ii) is
subject to the
acquisition in one
or more
related transactions
by any
Person or
“group” of
Persons (as
such term
is defined
in Section
13(d) and 14(d)
of the Act,
and the
related regulations) who
have expressed
intent to acquire
more than
50% of
the total
voting power of outstanding voting securities
of Company;


 


(e)              
No Listing. Shares
of Common
Stock shall not
be listed or
quoted or are
otherwise suspended from
trading on a
Trading Market for
a period of
five consecutive Trading
Days;


 


(f)              
Voluntary Bankruptcy or
Insolvency Proceedings. Company
shall commence a voluntary
case or other
proceeding seeking
liquidation, reorganization
or other relief
with respect to
itself or its
debts under
any bankruptcy, insolvency
or other similar
law now or
hereafter in effect,
including without limitation,
any assignment
for the benefit
of its creditors
or consent to
any such relief
or to the
appointment of
or taking possession
of its property
by any official
in an involuntary case or
other proceeding commenced against it;


 


(g)               Involuntary Bankruptcy or Insolvency Proceedings. Proceedings for the appointment of a receiver, trustee, liquidator or custodian of Company or of all or a substantial part of the property thereof, or an involuntary case or other proceedings seeking liquidation, reorganization  or  other  relief  with  respect  to  Company  or  the  debts  thereof  under  any
bankruptcy, insolvency or other similar law now or hereafter in effect shall be commenced and an order for relief entered or such proceeding
shall not be dismissed or discharged
within 45 days of commencement.


 



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5.    
        Rights of Holder upon Default. Upon the occurrence and during the continuance
of an Event of Default, Holder may, by written notice to Company, declare all outstanding Obligations due hereunder to be immediately due and payable without presentment, demand, protest or any other notice of any kind, all of which are hereby expressly waived. In addition to the foregoing remedies, upon the occurrence of any
Event of Default, Holder may exercise any other right power or remedy permitted to it by law, either by suit in equity or by action at law, or both. Upon the occurrence of any Event of Default, Holder may in its sole discretion choose to waive such default and keep this Note
outstanding pursuant to its
terms herein.


 


6.      
     Note Registration; New Notes for Transfers. Company shall register this Note upon records maintained by Company for that purpose (the “Note Register”) in the name of Holder. Company may deem and treat Holder as the absolute owner hereof for all other purposes, absent actual notice to the contrary from Holder.


 


7.         
   Representations and Warranties of Company. Company represents and warrants to Holder
that:


 


(a)               
Due Incorporation, Qualification,
etc. Company
(i) is a
corporation duly incorporated,
validly existing and
in good standing
under the laws
of the State
of Delaware;


(ii)  
has the power
and authority to
own, lease and
operate its properties
and carry on
its business as
now conducted; and
(iii) is duly
qualified, licensed
to do business
and in good
standing as a
foreign corporation
in each
jurisdiction where
the failure
to be so
qualified or
licensed could
reasonably be expected
to have a
material adverse
effect on the
assets, liabilities,
condition (financial or otherwise)
or business of Company.


 


(a)               
Authority. The execution,
delivery and performance
by Company
of this
Note and the
consummation of
the transactions contemplated
hereby: (i) are
within the
power of Company;
and (ii) have
been duly authorized
by all necessary
actions on the
part of Company.


 


(b)              
Enforceability. This Note
has been duly
executed and delivered
by Company and
constitutes a legal,
valid and binding
obligation of
Company, enforceable
against Company
in accordance
with its terms,
except as limited
by bankruptcy,
insolvency or
other laws
of general application
relating to or
affecting the enforcement
of creditors’
rights generally
and general principles of equity.


 


(c)               
Private Sale. Assuming
that Holder
has purchased
this Note for
investment purposes
and not with
a view to
its distribution,
the issuance
of this
Note does not
require registration under
the Securities Act or
any state securities
laws.


 


(d)              
Issuance of Note.
Neither the
issuance nor
the delivery
of this
Note is subject
to any preemptive
right of any
stockholder of Company
or to any
right of first
refusal or other
similar right in favor
of any person
or entity which
has not been
waived.


 



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(e)               
Governmental Approvals.
Company is
not required to
obtain any order,
consent, approval or
authorization of,
or to make
any declaration
or filing with,
any governmental
agency (including under
any state securities
or “blue sky”
laws) in connection
with the
execution and delivery
of this Note,
or the
consummation of
the transactions
contemplated hereby.


 


(f)               
Financial Condition.
Company is
not entering
into the arrangements
contemplated by
this Note
with actual
intent to
hinder, delay or
defraud either present
or future creditors.
On the date
hereof on a
pro forma
basis after giving
effect to the
transactions contemplated
and to all
debts incurred or
to be created
in connection
herewith, the
present fair
salable value
of the assets
of Company (on a
going concern basis)
will exceed the
probable liabilities of
Company on its debts (including its
contingent obligations).


 


8.           
Waiver and Amendment;
Entire Agreement.
No provision
of this
Note may
be amended,
waived or modified
except upon the
written consent
of Company and
Holder. No
failure on the
part of Holder
to exercise,
and no
delay in
exercising, any
right hereunder
shall operate
as a waiver
thereof; nor shall
any single
or partial exercise
of any
right hereunder
by Holder
preclude any other
or further
exercise thereof or
the exercise
of any other
right. This
Note constitutes the
entire agreement
of Company
and Holder with
respect to
the matters
set forth
herein.


 


9.           
Assignment.
Neither this Note
nor any rights
or obligations of
Company hereunder
may be assigned,
conveyed or transferred,
in whole
or in
part other
than as
set forth
in this
Note. The
rights and obligations
of Company
and Holder under
this Note
shall be binding
upon and benefit
their respective
permitted successors,
assigns, heirs,
administrators and
transferees.


 


10.     
    Notices. Any and all notices or other
communications or deliveries hereunder shall be in writing and shall be deemed
given and effective on the earliest of (i)
the date of transmission, if such
notice or communication is delivered via email
to the email address specified in
this Section prior to 5:00 p.m. (New York City time)
on a Trading
Day, (ii) the
next Trading Day after the date
of transmission, if such notice or communication
is delivered via email to the email
address specified in this Section
on a day that is not a
Trading Day or later than 5:00 p.m. (New
York City time) on any Trading Day, (iii) the Trading
Day following the date of mailing, if sent
by nationally recognized overnight courier service or (iv) upon
actual receipt by
the party to
whom such notice is required to be given. The addresses
for such communications shall be: (i) if to Company,
to InterCloud Systems, Inc., 1030 Broad Street, Shrewsbury, NJ 07702,
Attention: Timothy A. Larkin, email
address: tlarkin@intercloudsys.com, and (ii) if to Holder,
to the address or email
address appearing on Company’s
shareholder records or Note
Register or such
other address as Holder may provide
to Company in accordance with this
Section 14, with a mandatory
copy of any
notice to Holder
not sent by email to be simultaneously
emailed to the email address of
Holder appearing on the Company’s Note Register
with a simultaneous cc
by email to:mfdurfee@gmail.com.


 


11.       
   Fees and Expenses. Company agrees to pay to Holder, in addition to the principal amount due hereunder, all fees and expenses (including court costs and legal fees and
expenses) incurred or expended by Holder in connection with the negotiation, administration and enforcement
of this Note.


 



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12.           Waiver
of Jury
Trial. COMPANY,
AFTER CONSULTING
OR HAVING
HAD THE
OPPORTUNITY TO
CONSULT WITH
COUNSEL, KNOWINGLY,
VOLUNTARILY AND
INTENTIONALLY HEREBY
IRREVOCABLY WAIVES
ITS RIGHT
TO A
TRIAL BY
JURY IN
ANY ACTION ARISING OUT
OF THIS NOTE
AND THE TRANSACTIONS
CONTEMPLATED HEREUNDER.


 


13.           Headings. The headings
herein are for
convenience only, do
not constitute
a part of
this Note and
shall not be
deemed to limit or affect
any of the
provisions hereof


 


14.         
 Severability.
If one or
more provisions
of this Note
are held to
be unenforceable under
applicable law, such
provision(s) shall
be excluded
from this
Note and
the balance
of the
Note shall be
interpreted as if
such provision(s)
were so excluded
and shall be
enforceable in
accordance with its
terms.


 


15.           Governing
Law; Jurisdiction.
The provisions of
this Note shall
be governed by
and construed
in accordance
with the
laws of
the State of
New Jersey without
reference to conflict
of law provisions.
Any action or
proceeding in connection
with this Agreement
shall be brought
in any court
of record of
the State of
New Jersey or
the United States
in such state,
and the parties
hereto irrevocably consent
to and confer
personal jurisdiction of
such court over
them by such court.


 


 


Signatures
appear on the
following page


 


 



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IN
WITNESS
WHEREOF, the
Company has
caused this Note
to be issued
as of the
date first written
above.


 





	 	INTERCLOUD SYSTEMS, INC.
	 	 	 
	 	By: 	 
	 	Name 	 
	 	Title