Attached files
| file | filename |
|---|---|
| 8-K - CURRENT REPORT ON FORM 8-K - Helix Wind, Corp. | helix_8k-030510.htm |
| EX-10.1 - NOTE PURCHASE AGREEMENT - Helix Wind, Corp. | helix_ex1001.htm |
| EX-10.5 - AMENDMENT NO. 3 TO PLACEMENT AGENCY AGREEMENT - Helix Wind, Corp. | helix_ex1005.htm |
| EX-10.3 - SEPARATION AGREEMENT - Helix Wind, Corp. | helix_ex1003.htm |
| EX-10.2 - CONVERTIBLE SECURED PROMISSORY NOTE - Helix Wind, Corp. | helix_ex1002.htm |
Exhibit 10.4
Final
Convertible
Note
THE SECURITIES REPRESENTED BY THIS INSTRUMENT
HAVE NOT BEEN REGISTERED WITH THE SECURITIES AND EXCHANGE COMMISSION UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "ACT") OR ANY STATE SECURITIES LAW, IN
RELIANCE UPON THE EXEMPTIONS FROM REGISTRATION PROVIDED IN THE
ACT. ANY SUBSEQUENT TRANSFER OF THIS SECURITY OR ANY INTEREST THEREIN
WILL BE UNLAWFUL UNLESS IT IS REGISTERED UNDER THE ACT OR UNLESS AN EXEMPTION
FROM REGISTRATION IS AVAILABLE. FURTHERMORE, IT IS UNLAWFUL TO CONSUMMATE A SALE
OR TRANSFER OF THIS SECURITY OR ANY INTEREST THEREIN, WITHOUT THE OPINION OF
COUNSEL ACCEPTABLE TO THE COMPANY THAT THE PROPOSED TRANSFER OR SALE DOES NOT
AFFECT THE EXEMPTIONS RELIED UPON BY THE COMPANY IN ORIGINALLY DISTRIBUTING THE
SECURITY AND THAT REGISTRATION IS NOT REQUIRED.
HELIX
WIND, CORP.
a
Nevada Corporation
9%
CONVERTIBLE NOTE
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$144,833
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February
28, 2010
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Note
No.: 77
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Helix
Wind, Corp., a Nevada corporation (the “Company”), for value received, hereby
promises to pay to Ian Gardner (the “Holder”), or registered assigns, the
principal sum of One Hundred Forty Four Thousand Eight Hundred Thirty Three
dollars ($144,833) plus all accrued but unpaid interest on August 22,
2012 (the “Maturity Date”). Interest shall be computed on the basis
of a 365-day year from the date hereof on the unpaid balance of such principal
amount from time to time outstanding at the rate of nine percent (9%) per annum,
such interest to be due and payable in full on the Maturity
Date. This 9% Convertible Note (this “Note”) is issued pursuant to an
offering by the Company which is exempt from the registration requirements of
the Securities Act of 1933, as amended (the “Act”).
Prepayment. This
Note may be prepaid in whole or in part at any time and from time to time
without prepayment charge or penalty upon a Forced Conversion Event (as defined
below), provided that the Company first provides Holder with notice of such
intent to prepay this Note at least thirty (30) days prior to such prepayment so
that Holder has an opportunity to convert this Note into Company Common Stock
(“Common Stock”), as provided below. Simultaneously with any prepayment of
principal, there must also be paid all interest accrued on the amount of
principal so prepaid and all other sums then due hereunder or under any
instrument, document or other writing now or hereafter securing or pertaining to
this Note.
Confidential
A “Forced Conversion Event” shall mean
(a) both (i) the per share bid price of the common stock of the Company as
quoted on the OTC Bulletin Board is not less $1.50 (subject to adjustment for
reverse and forward stock splits, stock dividends, stock combinations and other
similar transactions of the Common Stock that occur after the date of this Note)
and (ii) no less than 200,000 shares of the common stock of the Company have
traded on each trading day for not less than three (3) consecutive trading days;
or (b) a Change of Control (as defined below).
A “Change of Control”
shall be deemed to have occurred upon the consummation of (i) an acquisition of
any voting securities of the Company by any person, immediately after which such
entity or person has beneficial ownership of fifty-one percent (51%) or more of
the then outstanding shares or the combined voting power of the Company’s then
outstanding voting securities; (ii) a merger, consolidation or other business
combination with or into another unrelated, non-affiliated company (other than
Helix Wind, Inc.); or (iii) the sale or other disposition of all or
substantially all of the assets of the Company.
Event of Default. In
case one or more of the following events (each, an “Event of Default”) (whatever
the reason for such Event of Default and whether it shall be voluntary or
involuntary or be effected by operation of law or pursuant to any judgment,
decree or order of any court or any order, rule or regulation of any
administrative or governmental body) shall have occurred and be
continuing:
(a) default
in the payment of all or any part of the principal or interest of any of this
Note as and when the same shall become due and payable in accordance with the
terms hereof or otherwise and such default continues for 20 business days after
written notice from the Holder to the Company; or
(b) the
Company pursuant to or within the meaning of any bankruptcy law (i) commences a
voluntary case or proceeding, (ii) consents to the entry of an order for relief
against it in an involuntary case or proceeding, (iii) consents to the
appointment of a custodian, receiver, trustee, assignee, liquidator or similar
official of it or for all or substantially all of its property, (iv) makes a
general assignment for the benefit of her creditors; or
(c) a
court of competent jurisdiction enters an order or decree under any bankruptcy
law that (i) is for relief against the Company in an involuntary case, (ii)
appoints a custodian, receiver, trustee, assignee, liquidator or similar
official of The Company or for all or substantially all of the property of the
Company, or (iii) orders the liquidation of the Company and such order or decree
remains unstayed and in effect for 10 days;
then, in
each case where an Event of Default occurs, cumulative of and in addition to all
other rights and remedies available to the Holder, the Holder, may, at its
option, declare the outstanding principal hereunder and all accrued and unpaid
interest hereon to be due and payable immediately, and upon any such declaration
the same shall become immediately due and payable (said amount hereinafter
referred to as the “Default Amount”).
Confidential
2
No right
or remedy herein conferred upon or reserved to the Holder is intended to be
exclusive of any other right or remedy, and every right and remedy shall, to the
extent permitted by law, be cumulative and in addition to every other right and
remedy given hereunder or now or hereafter existing at law or in equity or
otherwise. The assertion or employment of any right or remedy
hereunder, or otherwise, shall not prevent the concurrent assertion or
employment of any other appropriate right or remedy.
No delay
or omission of the Holder to exercise any right or power accruing upon any
Default or Event of Default occurring and continuing as aforesaid shall impair
any such right or power or shall be construed to be a waiver of any such Default
or Event of Default or an acquiescence therein; and every power and remedy given
by this Note or by law may be exercised from time to time, and as often as shall
be deemed expedient, by the Holder.
The
Company waives presentment, demand, protest and notices of every kind and
assents to any extension or postponement of the time of payment or any other
indulgence, to any substitution, exchange or release of collateral, and to the
addition or release of any other party or person primarily or secondarily
liable.
Conversion. The
Holder shall have the right, at his or her own option, at any time and from time
to time prior to the close of business on the Maturity Date, and the Company,
upon the conditions set forth in the Section below entitled “Mandatory
Conversion” shall have the right, to convert the outstanding principal and
accrued interest of this Note into fully-paid and non-assessable shares of
Common Stock of the Company (“Common Stock”) at a conversion price equal to (i)
the outstanding principal and accrued interest of this Note on the conversion
date divided by (ii) fifty cents ($0.50) (the “Conversion Price”). In
order to exercise this conversion privilege, the Holder shall surrender this
Note to the Company during usual business hours at the Company’s principal
executive office, accompanied by written notice and representations in form
satisfactory to the Company that the Holder elects to convert this Note into
Common Stock, including without limitation, representations that the Common
Stock is being acquired for investment and not with a view to distribution
within the meaning of the Act.
If the
Company subdivides its Common Stock by reclassification or otherwise into a
greater number of shares or takes any other action which increases the amount of
stock into which this Note is convertible, the number of shares purchasable
hereunder shall be proportionately increased and the Conversion Price shall be
proportionately decreased. If the outstanding shares of Common Stock
are combined or consolidated, by reclassification or otherwise, into a lesser
number of shares, the Conversion Price shall be proportionately increased and
the number of Shares shall be proportionately decreased. Upon any
reclassification, exchange, substitution, or other event that results in a
change of the number and/or class of the securities issuable upon conversion of
this Note, Holder shall be entitled to receive, upon conversion of this Note,
the number and kind of securities and property that Holder would have received
if this Note had been exercised immediately before such reclassification,
exchange, substitution, or other event. The provisions of this
paragraph shall similarly apply to successive reclassifications, exchanges,
substitutions, or other events.
Confidential
3
Mandatory
Conversion. Notwithstanding anything contained herein to the
contrary, if a Forced Conversion Event occurs, then the Company
will deliver written notice by registered mail to the
Holder (a “Forced Conversion Notice” and the date such notice is delivered to
the Holder, the “Forced Conversion Notice Date”) to cause the Holder to convert
all or part of the then outstanding principal amount of this Note plus, if so
specified in the Forced Conversion Notice, accrued but unpaid interest and other
amounts owing to the Holder under this Note, it being agreed that the
“Conversion Date” shall be deemed to occur on the 30th business day following
the Forced Conversion Notice Date (such day, the “Forced Conversion
Date”).
If the
Holder does not convert this Note as directed in the Forced Conversion Notice,
then notwithstanding such inaction on the part of the Holder, as of the close of
business on the Forced Conversion Date the Holder shall not be entitled to the
benefits and rights of this Note but shall only be entitled to such benefits and
rights as provided in the Forced Conversion Notice. For example, if the Forced
Conversion Notice provides that on the Forced Conversion Notice Date the entire
outstanding principal amount of the Note plus all accrued and unpaid interest
shall be converted to Common Stock and the Holder does not deliver the Note to
the Company in exchange for the Common Stock, on the Forced Conversion Date the
Note shall terminate and have no further force and effect and the only right
that the Holder shall have is the right to receive the appropriate number of
shares of Common Stock.
This
Note, and the obligations and rights of the Company hereunder, shall be binding
upon and inure to the benefit of the Company, the Holder and their respective
heirs, successors and assigns.
This Note
shall be construed and enforced in accordance with, and the rights of the
parties shall be governed by, the laws of the State of New York.
IN
WITNESS WHEREOF, this Note has been executed and delivered as a sealed
instrument on the date first above written by the duly authorized representative
of the Company.
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Helix
Wind, Corp.
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By: /s/ Scott
Weinbrandt
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Name:
Scott Weinbrandt
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Title: Chairman
& President
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Confidential
4