EXHIBIT 4.1


 


[For U.S. Persons:


 


NEITHER THESE SECURITIES NOR THE SECURITIES
ISSUABLE UPON CONVERSION HEREOF HAVE BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “ACT”), OR ANY
STATE SECURITIES LAWS, AND NEITHER SUCH SECURITIES NOR ANY INTEREST THEREIN MAY BE OFFERED, SOLD, PLEDGED, ASSIGNED OR OTHERWISE
TRANSFERRED UNLESS (1) A REGISTRATION STATEMENT WITH RESPECT THERETO IS EFFECTIVE UNDER THE ACT AND ANY APPLICABLE STATE SECURITIES
LAWS, OR (2) AN EXEMPTION FROM SUCH REGISTRATION EXISTS AND THE COMPANY RECEIVES AN OPINION OF COUNSEL TO THE HOLDER OF SUCH SECURITIES,
WHICH COUNSEL AND OPINION ARE SATISFACTORY TO THE COMPANY, THAT SUCH SECURITIES MAY BE OFFERED, SOLD, PLEDGED, ASSIGNED OR TRANSFERRED
IN THE MANNER CONTEMPLATED WITHOUT AN EFFECTIVE REGISTRATION STATEMENT UNDER THE ACT OR APPLICABLE STATE SECURITIES LAWS.]


 


[For Non-U.S. Persons:


 


THESE SECURITIES WERE ISSUED IN AN OFFSHORE
TRANSACTION TO PERSONS WHO ARE NOT U.S. PERSONS (AS DEFINED IN REGULATION S) PURSUANT TO REGULATION S UNDER THE UNITED STATES SECURITIES
ACT OF 1933, AS AMENDED (THE “1933 ACT”). ACCORDINGLY, NONE OF THE SECURITIES REPRESENTED BY THIS CERTIFICATE NOR THE
SECURITIES ISSUABLE UPON CONVERSION HEREOF HAVE BEEN REGISTERED UNDER THE 1933 ACT, OR ANY U.S. STATE SECURITIES LAWS, AND, UNLESS
SO REGISTERED, NONE MAY BE OFFERED OR SOLD IN THE UNITED STATES OR, DIRECTLY OR INDIRECTLY, TO U.S. PERSONS EXCEPT PURSUANT TO
AN EFFECTIVE REGISTRATION STATEMENT OR PURSUANT TO AN EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS
OF THE 1933 ACT, AND IN EACH CASE ONLY IN ACCORDANCE WITH APPLICABLE STATE SECURITIES LAWS. IN ADDITION, HEDGING TRANSACTIONS INVOLVING
THE SECURITIES MAY NOT BE CONDUCTED UNLESS IN ACCORDANCE WITH THE 1933 ACT.]


 


RACKWISE, INC.


 


[FORM OF]


12% CONVERTIBLE PROMISSORY NOTE


 


	 	 
	Issuance Date: April __, 2012	Principal Amount: U.S. $________


 


FOR VALUE RECEIVED, Rackwise, Inc.
a Nevada corporation (the "Company"), hereby promises to pay to [___Subscriber____] or registered assigns
("Holder") the amount set forth above as the Principal Amount (as reduced pursuant to the terms hereof pursuant
to redemption, conversion or otherwise, the "Principal") when due, whether upon the Maturity Date (as defined
below), acceleration, redemption or otherwise (in each case in accordance with the terms hereof) and to pay interest at the rate
of twelve percent (12%) per annum ("Interest") from the date set forth above as the Issuance Date (the "Issuance
Date") until the same becomes due and payable on the Maturity Date. This Note is one of a series of notes of like tenor
hereto (the “Notes”) issued in a private placement offering (the “Offering”) pursuant to
several Subscription Agreements between the Company and each Subscriber named therein (the “Subscription Agreements”).


 






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1.PAYMENTS
OF PRINCIPAL AND INTEREST; MATURITY.  Payment in full of all unpaid Principal and all accrued and unpaid Interest is due
no later than July [__], 2012 (the "Maturity Date"), unless this Note is repaid earlier in accordance with
Section 2 herein or converted in accordance with Section 3 herein; provided, however, that the
Corporation and Holders of a majority in interest of these Notes may mutually agree to extend the term of the Note beyond the Maturity
Date.


 


2.PREPAYMENT. The Company and
the Holder understand and agree that the Principal and any accrued Interest may be prepaid by the Company at any time without penalty.


 


3.Optional
Conversion. At the sole discretion of the Holder, the Holder may convert all or any portion of the outstanding principal
amount of, and accrued but unpaid interest on, this Note into units of the Company’s securities (the “Units”)
at a price of $0.45 per Unit, with each Unit consisting of one share of the Company’s common stock
and a warrant in substantially the form attached as Exhibit A hereto (the “Warrant”) to purchase one
share of the Company’s common stock at any time on or prior to the fifth anniversary of the final Closing Date (as defined
in the Subscription Agreements), at an initial exercise price of $1.00 per share. The number of shares of common stock and the
exercise price and number of Warrants included in a Unit shall be adjusted to reflect any stock split, stock dividend, combination
or reverse split with respect to the common stock. No fractional Units will be issued upon conversion, but the number of
Units shall be rounded to the nearest whole number of Units.


 


4.Limitation
on Conversion. The Holder shall not be entitled to convert this Note on any date, if and to the extent that the number
of shares of common stock of the Company issuable upon the conversion of this Note on such date (or issuable upon conversion or
exercise of the Conversion Securities if such securities are not shares of common stock of the Company), together with the number
of shares of common stock of the Company beneficially owned by the Holder and its affiliates otherwise than on account of ownership
of this Note on such date, would result in beneficial ownership by the Holder and its affiliates of more than 9.9% of the outstanding
shares of common stock of the Company on such date. For the purposes of the immediately preceding sentence, beneficial ownership
shall be determined in accordance with Section 13(d) of the Securities Exchange Act of 1934, as amended, and Regulation 13d-3 thereunder.


 


5.EVENT OF DEFAULT. Failure
by the Company to make payment pursuant to Section 1 hereof shall constitute an event of default ("Event of Default").
In an Event of Default, the Holder shall be entitled to all legal remedies available to it to pursue collections, and the Company
shall bear all reasonable costs of collection, including but not limited to reasonable attorneys’ fees.


 






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6.NO WAIVER. No failure or delay
by the Holder in exercising any right, power or privilege under this Note shall operate as a waiver thereof, nor shall any single
or partial exercise thereof preclude any other or further exercise thereof or the exercise of any other right, power or privilege.
The rights and remedies herein provided shall be cumulative and not exclusive of any rights or remedies provided by applicable
law. No course of dealing between the Company and the Holder shall operate as a waiver of any rights by the Holder.


 


7. NOTICES; PAYMENTS.


 


(a)Notices.
 All notices or other communications which are required or permitted under this Note shall be in writing and shall
be sufficient if transmitted by hand delivery, by facsimile transmission, by registered or certified mail, postage pre-paid, by
electronic mail, or by nationally recognized overnight courier, to the persons at the addresses
set forth below (or at such other address as may be provided hereunder), and shall be deemed to have been delivered (i) if transmitted
by hand delivery, as of the date delivered, (ii) if transmitted by facsimile or electronic mail, as of the date so transmitted
with an automated confirmation of delivery, (iii) if transmitted by nationally recognized overnight courier,
as of the Business Day (as defined below) immediately following the date of delivery to the carrier, and (iv) if transmitted by
registered or certified mail, postage pre-paid, on the fifth Business Day following posting with the U.S. Postal Service:


 


If to the Company to:


 


Rackwise, Inc.


101 California Street, Suite 2450


San Francisco, CA 94111


Attn: Chief Executive Officer


 





with a copy to: 


 





Gottbetter & Partners, LLP


488 Madison Avenue, 12th Floor


New York, NY 10022


Attention: Adam S. Gottbetter, Esq.


 


And, if to the Holder, to the address of
record for such Holder as set forth in the books and records of the Company.


 


Unless a specific notice is otherwise required
under this Note, the Company shall provide the Holder with prompt written notice of all actions taken pursuant to this Note, including
in reasonable detail a description of such action and the reason therefore.


 


(b)Payments.  Except
as otherwise provided in this Note, whenever any payment of cash is to be made by the Company to the Holder, such payment shall
be made in lawful money of the United States of America by a check drawn on the account of the Company and sent via overnight courier
service to the Holder at the address noted in paragraph (a) above; provided that the Holder may elect to receive a payment via
wire transfer of immediately available funds by providing the Company with prior written notice setting out such request and the
Holder's wire transfer instructions.  Whenever any amount expressed to be due by the terms of this Note is due on any day
which is not a Business Day, the same shall instead be due on the next succeeding day which is a Business Day. For the purposes
of this Section 7, the term "Business Day" means any day of the year other than a Saturday, a Sunday or a day
on which the U.S. Securities and Exchange Commission is required or authorized to close.


 






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8.TRANSFER.  The Holder
acknowledges and agrees that this Note may only be offered, sold, assigned or transferred by the Holder if consented to in writing
by the Company.


 


9.CONSTRUCTION; HEADINGS.  This
Note shall be deemed to be jointly drafted by the Company and the Holder and shall not be construed against any person as the drafter
hereof. The headings in this Note are for convenience of reference and shall not form part of, or affect the interpretation of,
this Note.


 


10.SEVERABILITY. In the event
that one or more of the provisions of this Note shall for any reasons be held invalid, illegal, or unenforceable in any respect,
such invalidity, illegality or unenforceability shall not affect any other provision of this Note, but this Note shall be construed
as if such invalid, illegal or unenforceable provision had never been contained herein.


 


11.GOVERNING LAW. This Note
and the rights and obligations of the Company and the Holder shall be governed by and construed in accordance with the laws of
the State of New York.


 


 


 


[SIGNATURE PAGE FOLLOWS]


 


 






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IN WITNESS WHEREOF, the Company has caused
this Note to be duly executed as of the Issuance Date set out above.


 


 


	 	 
	 	
        RACKWISE,
        INC.

         

	 	By_________________________________
	 	Name: 
	 	Title:    


 


 


 






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