UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
______________________
 
FORM 8-K
 
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
 
Date of Report (Date of earliest event reported): January 1, 2014
 
InterCloud Systems, Inc.
(Exact name of registrant as specified in its charter)
 
Delaware
 
000-32037
 
65-0963722
(State or other jurisdiction of incorporation)
 
(Commission File Number)
 
(I.R.S. Employer Identification No.)
 
331 Newman Springs Road
Building 1, Suite 104
Red Bank, New Jersey
 
07701
(Address of principal executive offices)
 
(Zip Code)
 
Registrant’s telephone number, including area code: 561-988-1988

 
(Former name or former address, if changed since last report.)
 
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:
 
¨
Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
¨¨¨
Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
¨¨¨
Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
¨¨¨
Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13a-4(c))
 
 
 
 
 
Item 2.01.  Completion of Acquisition or Disposition of Assets.
 
Effective as of January 1, 2014, InterCloud Systems, Inc., a Delaware corporation (the “Company,” “we,” “us” or “our”), consummated the acquisition of all of the outstanding capital stock of Integration Partners-NY Corporation, a New Jersey corporation (“IPC”).  As previously disclosed in our Current Report on Form 8-K filed with the Securities and Exchange Commission on December 18, 2013, the acquisition of IPC was effected pursuant to the terms of a Stock Purchase Agreement, dated as of December 12, 2013 (the “IPC Agreement”), by and among the Company, IPC, and Barton F. Graf, Jr. (“Graf”), David C. Nahabedian (“Nahabedian”) and Frank Jadevaia (“Jadevaia”), as the sole shareholders of IPC (each of Graf, Nahabedian and Jadevaia, a “Seller” and collectively, the “Sellers”).  On January 1, 2014, we entered into an amendment to the IPC Agreement (the “Amendment”), pursuant to which, among other things, the IPC Agreement was amended to provide that one-third (1/3) of the amount of the purchase price to be placed in escrow would be in the form of shares of our common stock.  The purchase price for the acquisition is payable as follows:
 
·  
an aggregate of $12,509,746.71 was paid to Nahabedian and Graf;
 
·  
a convertible promissory note was issued to Jadevaia in the original principal amount of $6,254,873.36 (the “Jadevaia Note”);
 
·  
45,676 shares of our common stock will be issued to Jadevaia or his designee(s);
 
·  
5,886 shares of our common stock will be issued to each of Nahabedian and Graf or their respective designee(s); and
 
·  
$941,593.84  was placed in escrow, and 47,080 shares of our common stock will be issued in the name of Jadevaia or his designee(s) and placed in escrow, with Christiana Trust, a division of Wilmington Savings Society, FSB, as escrow agent, securing the parties’ indemnification and certain other obligations under the IPC Agreement.

As additional earn-out consideration, pursuant to the terms of the IPC Agreement, as amended by the Amendment, we will pay to Jadevaia an amount equal to (i) the product of 0.6 multiplied by the EBITDA of IPC for the 12-month period beginning on January 1, 2014 (the “Forward EBITDA”), plus (ii) in the event that the Forward EBITDA exceeds the closing trailing-twelve-month EBITDA by 5.0% or more, an amount equal to 2.0 multiplied by this difference, which amount will be payable in cash, or at our election, shares of our common stock.

The Jadevaia Note accrues interest at the rate of 8% per annum, and all principal and interest accruing thereunder is due and payable on December 31, 2014.  At the election of Jadevaia, the Jadevaia Note is convertible into shares of our common stock at a conversion price of $16.99 per share (subject to equitable adjustments for stock dividends, stock splits, recapitalizations and other similar events).  Beginning on July 1, 2014, if our common stock is trading at a price of greater than or equal to $16.99 for ten consecutive trading days, we may elect to force the conversion of the Jadevaia Note.
 
The foregoing description of the Amendment and the Jadevaia Note does not purport to be complete and is subject to, and qualified in its entirety by reference to, the full text of such agreements, copies of which are filed herewith as Exhibits 10.2 and 10.3, respectively, and incorporated by reference herein. The provisions of the Amendment and the Jadevaia Note, including the representations and warranties contained therein, are not for the benefit of any party other than the parties to such agreements and are not intended as documents for investors and the public to obtain factual information about our current state of affairs. Rather, investors and the public should look to other disclosures contained in our filings with the Securities and Exchange Commission.

On January 2, 2014, we issued a press release announcing the closing of the IPC acquisition, a copy of which is filed herewith as Exhibit 99.1.
 
 
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Item 2.03.  Creation of a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement of a Registrant.
 
The information set forth in Item 2.01 of this Current Report on Form 8-K is incorporated herein by reference.
 
Item 3.02.  Unregistered Sales of Equity Securities.
 
The information set forth in Items 2.01 of this Current Report on Form 8-K is incorporated herein by reference.

Item 9.01.  Financial Statements and Exhibits

(d) Exhibits
 
Exhibit No.
 
Description
     
10.1
 
Stock Purchase Agreement, dated December 12, 2013, among InterCloud Systems, Inc., Integration Partners-NY Corporation, Barton F. Graf, Jr., David C. Nahabedian and Frank Jadevaia (incorporated by reference to Exhibit 10.1 to our Current Report on Form 8-K, filed with the Securities and Exchange Commission on December 18, 2013)
     
10.2
 
Amendment No. 1 to Stock Purchase Agreement, dated January 1, 2014, among InterCloud Systems, Inc., Integration Partners-NY Corporation, Barton F. Graf, Jr., David C. Nahabedian and Frank Jadevaia.
     
10.3
 
Convertible Promissory Note, dated January 1, 2014, issued by InterCloud Systems, Inc. in favor of Frank Jadevaia.
     
99.1
 
Press Release dated January 2, 2014.

 
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SIGNATURE
 
Pursuant to the requirements of the Securities Exchange Act of 1934, as amended, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
 
Date: January 7, 2014
INTERCLOUD SYSTEMS, INC.
   
 
By:
/s/ Mark E. Munro
   
Name: Mark E. Munro
   
Title:   Chief Executive Officer
 
 
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EXHIBIT INDEX

Exhibit No.
 
Description
     
10.1
 
Stock Purchase Agreement, dated December 12, 2013, among InterCloud Systems, Inc., Integration Partners-NY Corporation, Barton F. Graf, Jr., David C. Nahabedian and Frank Jadevaia (incorporated by reference to Exhibit 10.1 to our Current Report on Form 8-K, filed with the Securities and Exchange Commission on December 18, 2013)
     
10.2
 
Amendment No. 1 to Stock Purchase Agreement, dated January 1, 2014, among InterCloud Systems, Inc., Integration Partners-NY Corporation, Barton F. Graf, Jr., David C. Nahabedian and Frank Jadevaia.
     
10.3
 
Convertible Promissory Note, dated January 1, 2014, issued by InterCloud Systems, Inc. in favor of Frank Jadevaia.
     
99.1
 
Press Release dated January 2, 2014.

 
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Exhibit 10.2

AMENDMENT NO. 1

TO

STOCK PURCHASE AGREEMENT

This Amendment No. 1 (this “ Amendment ”), dated as of January 1, 2014, to that certain Stock Purchase Agreement (the “ Agreement ”), dated as of December 12, 2013, is made and entered into by and among InterCloud Systems, Inc., a Delaware corporation (“ Purchaser ”), Integration Partners-NY Corporation, a New Jersey corporation (the “ Company ”), and Barton F. Graf, Jr. (“ Graf ”), David C. Nahabedian (“ Nahabedian ”) and Frank Jadevaia (“ Jadevaia ”) (each of Graf, Nahabedian and Jadevaia, a “ Seller ” and collectively, the “ Sellers ”) as the sole shareholders of the Company. Capitalized terms used but not defined herein shall have the meaning ascribed to them in the Agreement.

WHEREAS, Purchaser, the Company and the Sellers desire to amend the Agreement on the terms and conditions set forth below.
 
NOW, THEREFORE, in consideration of the mutual agreements contained herein, intending to be legally bound hereby, the parties agree as follows:

Section 1.   Amendment to Agreement .

1.1           Section 2.3 of the Agreement is hereby amended by deleting such section in its entirety and replacing it with the following:

“2.3            Purchase Price; Payment of Consideration .  Subject to the terms and conditions of this Agreement, Purchaser shall pay the aggregate purchase price set forth in this Section 2.3 for the Shares (the “ Purchase Price ”) as follows:

(a)           Purchaser shall pay to the Sellers an aggregate amount equal to (i) the product of the TTM EBITDA and 5.4, (ii) less any Estimated Closing Debt, (iii) less any Estimated Company Unpaid Transaction Expenses, (iv) plus any Estimated Working Capital Surplus or less any Estimated Working Capital Deficiency (the “ Initial Closing Payment ”).  The Initial Closing Payment will be paid as follows:

(i)            At Closing, Purchaser shall pay an aggregate of $12,509,746.71 to Nahabedian and Graf, with each of Nahabedian and Graf receiving one-half of such amount, which represents Nahabedian’s and Graf’s combined Pro Rata Share of an aggregate amount of cash equal to (i) the product of the TTM EBITDA and 5.2 (ii) less any Estimated Closing Debt (iii) less any Estimated Company Unpaid Transaction Expenses (iv) plus any Estimated Working Capital Surplus or less any Estimated Working Capital Deficiency, and (v) less each of their respective Pro Rata Share of the Escrow Amount.
 
 
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(ii)           At Closing, Purchaser shall issue to Jadevaia a convertible note (the “ Jadevaia Note ”) in the original principal amount of $6,254,873.36, which amount represents Jadevaia’s Pro Rata Share of an aggregate amount equal to (i) the product of the TTM EBITDA and 5.2 (ii) less any Estimated Closing Debt (iii) less any Estimated Company Unpaid Transaction Expenses (iv) plus any Estimated Working Capital Surplus or less any Estimated Working Capital Deficiency, and (v) less Jadevaia’s Pro Rata Share of the Escrow Amount. The conversion price of the Jadevaia Note shall be equal to the Common Stock Price.

(iii)          At Closing, Purchaser shall further issue to Jadevaia 45,676 shares of Purchaser Common Stock equal to the quotient obtained by dividing (A) (i) the product of TTM EBITDA and 0.2 (ii) less any Estimated Closing Debt (iii) less any Estimated Company Unpaid Transaction Expenses (iv) plus any Estimated Working Capital Surplus or less any Estimated Working Capital Deficiency, by (B) the Common Stock Price (rounded to the nearest whole share of Purchaser Common Stock) (such shares, the “ Initial Stock Payment ”).

(b)           In addition, at the Closing the Purchaser shall issue to each of Graf and Nahabedian an aggregate number of shares of Purchaser Common Stock equal to the quotient obtained by dividing (A) $100,000, by (B) the Common Stock Price (rounded to the nearest whole share of Purchaser Common Stock), which such calculation results in 5,886 shares of Purchaser Common Stock to be issued to each of Graf and Nahabedian.
 
(c)           Within sixty (60) days of the end of the Earnout Period, Purchaser shall pay to Jadevaia an aggregate amount equal to (i) 0.6 times the Forward EBITDA (the “ Base Earnout Amount ”) plus (ii) in the event that the Forward EBITDA equals or exceeds the TTM EBITDA by 5.0% or more, an amount equal to 2.0 times the difference between the Forward EBITDA and the TTM EBITDA (the “ Contingent Earnout Amount ” and, together with the Base Earnout Amount, the “ Earnout Payment ”).  The Earnout Payment will be paid in cash or, at Purchaser’s election, a number of shares of Purchaser Common Stock equal to the quotient of (x) the Earnout Payment, divided by (y) the average closing price of the Purchaser Common Stock as reported on Yahoo Finance for the three (3) trading days immediately prior to, but not including, the date of the end of the Earnout Period.
 
(d)           The Forward EBITDA calculation shall be made within forty-five (45) days of the end of the Earnout Period by Purchaser’s independent auditors (or other appropriate third party chosen by Purchaser and reasonably acceptable to the Sellers) and payment shall be made within sixty (60) days of the end of the Earnout Period.
 
(e)           Any Seller may elect to receive a portion of such Seller’s Pro Rata Share of the Initial Closing Payment up to an amount equal to such Seller’s Pro Rata Share of the TTM EBITDA in shares of Purchaser Common Stock in lieu of cash (the “ Elected Amount ”) provided that (i) such Seller notifies Purchaser of such election at least five (5) Business Days prior to the Closing and (ii) the number of shares to be so issued shall be determined by dividing such Seller’s Elected Amount by the Common Stock Price.
 
 
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(f)           The portion of the Purchase Price constituting the Escrow Amount shall be deposited in the Escrow Fund with the Escrow Agent in accordance with Section 2.4 .”
 
1.2.           Section 2.4 of the Agreement is hereby amended by deleting such section in its entirety and replacing it with the following:

“2.4.            Escrow .  At the Closing, Purchaser shall deposit (a) an amount in cash equal to $941,593.84, constituting an amount equal to two-thirds (2/3) of 7% of an aggregate amount equal to (i) the product of the TTM EBITDA and 5.2 (ii) less any Estimated Closing Debt (iii) less any Estimated Company Unpaid Transaction Expenses (iv) plus any Estimated Working Capital Surplus or less any Estimated Working Capital Deficiency, and (b) 47,080 shares of Purchaser Common Stock, which represents a number of shares of Purchaser Common Stock equal to one-third (1/3) of the quotient of (x) 7% of an aggregate amount equal to (i) the product of the TTM EBITDA and 5.2 (ii) less any Estimated Closing Debt (iii) less any Estimated Company Unpaid Transaction Expenses (iv) plus any Estimated Working Capital Surplus or less any Estimated Working Capital Deficiency, divided by (y) $10.00 (subject to equitable adjustments for any dividends, stock splits, recapitalizations or similar adjustments to Purchaser Common Stock), with Christiana Trust, a division of Wilmington Savings Fund Society, FSB, as escrow agent (the “ Escrow Agent ”).  Such deposit shall constitute the “ Escrow Fund ” and will be governed by the terms set forth herein and in the Escrow Agreement.  Each Seller’s proportionate interest in the Escrow Fund shall be based on such Seller’s Pro Rata Share; provided, however, that Graf and Nahabedian shall only have an interest in the portion of the Escrow Fund constituting cash and Jadevaia shall only have an interest in the portion of the Escrow Fund constituting shares of Purchaser Common Stock.”

1.3           Section 2.6 of the Agreement is hereby amended by deleting such section in its entirety and replacing it with the following:

“2.6            Calculation of Initial Closing Payment; Post-Closing Adjustment .
 
(a)           The Sellers shall cause the Company to prepare, in good faith, and deliver to Purchaser no later than the close of business on the day that is two (2) Business Days prior to the Closing Date, a notice (the “ Closing Notice ”), certified by each Seller and the Company’s chief financial officer and otherwise in form and substance reasonably satisfactory to Purchaser, setting forth the Company’s calculation of (i) the TTM EBITDA, (ii) the Closing Debt (the “ Estimated Closing Debt ”), (iii) the Company Unpaid Transaction Expenses (the “ Estimated Company Unpaid Transaction Expenses ”), (iv) the Closing Cash (the “ Estimated Closing Cash ”), (v) the Working Capital Surplus or Working Capital Deficiency (respectively, the “ Estimated Working Capital Surplus ” and “ Estimated Working Capital Deficiency ”) and (vi) the resulting Initial Closing Payment.  The Closing Notice shall be accompanied by sufficient documentation to support the calculations set forth therein as reasonably determined by Purchaser.
 
 
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(b)           As promptly as practicable, but not later than forty-five (45) days after the Closing Date (the “ Preparation Period ”), Purchaser shall prepare and deliver to the Sellers a notice (the “ Purchaser Notice ”) setting forth Purchaser’s good faith calculation of the TTM EBITDA, the Closing Debt, the Company Unpaid Transaction Expenses, the Closing Cash, the Working Capital Surplus or Working Capital Deficiency and the resulting calculation of the Initial Closing Payment, together with supporting documentation for such calculations.  In the event that Purchaser does not so deliver the Purchaser Notice, Purchaser shall be deemed to have accepted the calculations set forth in the Closing Notice.

(c)           After receipt of the Purchaser Notice by the Sellers, in the event that the Sellers do not agree with any of the calculations set forth in the Purchaser Notice, the Sellers shall, within ten (10) days of receipt of the Purchaser Notice (or in the event Purchaser does not deliver a Purchaser Notice, within ten (10) days of the expiration of the Preparation Period) (the “ Review Period ”) provide a notice (the “ Disagreement Notice ”) to Purchaser informing Purchaser of each such disagreement and the reasons and basis therefor.  Unless the Sellers provide the Disagreement Notice to Purchaser prior to the expiration of the Review Period, the Sellers shall be deemed to have accepted the calculations set forth in the Purchaser Notice (or the Closing Notice, in the event the Purchaser Notice is not delivered by Purchaser).

(d)           In the event that the Sellers timely deliver a Disagreement Notice to Purchaser, Purchaser and the Sellers shall attempt in good faith to come to an agreement on any calculations that are the subject of the Disagreement Notice.  If the Parties are unable to come to an agreement regarding any such disputed amount within thirty (30) days of receipt by Purchaser of the Disagreement Notice, either the Sellers or Purchaser may notify the other(s) that such dispute is being submitted to an independent accounting firm selected by such submitting Party(ies), reasonably acceptable to Purchaser (if selected by the Sellers) or to the Sellers (if selected by Purchaser), for resolution of the disputed items and determination of the disputed calculations and the resulting Initial Closing Payment.  The Company and Purchaser shall furnish such accounting firm with access to such books and records as it shall reasonably require to resolve the dispute.  The accounting firm shall be directed to complete its calculations and report the same in writing to the Parties hereto no later than thirty (30) days after its engagement.  The fees and expenses of the accounting firm shall be borne 50% by Purchaser and 50% by the Sellers.

(e)           Within five (5) Business Days following (i) Sellers’ acceptance of the Purchaser Notice calculations, (ii) the agreement of the Sellers and Purchaser on the calculations or (iii) receipt by the Parties of the accounting firm’s calculations pursuant to Section 2.6(d) above (the revised Initial Closing Payment resulting from any of the foregoing being the “ New Initial Payment ”), if the New Initial Payment is less than the original Initial Closing Payment, (a) each of Nahabedian and Graf shall promptly, and in any event within five (5) Business Days, pay in cash by check or wire transfer to Purchaser such Seller’s Pro Rata Share of the difference between the original Initial Closing Payment and the New Initial Payment, and (b) in the case of Jadevaia, the amounts owing under the Jadevaia Note shall automatically be reduced by Jadevaia’s Pro Rata Share of the difference between the original Initial Closing Payment and the New Initial Payment (the aggregate of such differences payable by the Sellers being the “ Adjustment Payment ”).  If the New Initial Payment is greater than the original Initial Closing Payment, Purchaser shall promptly, and in any event within five (5) Business Days, pay in cash by check or wire transfer (or the case of Jadevaia, by increasing the principal amount of the Jadevaia Note) to each Seller such Seller’s Pro Rata Share of the difference between the original Initial Closing Payment and the New Initial Payment.  Notwithstanding anything herein to the contrary, if Nahabedian and Graf owe a payment to Purchaser pursuant to this Section 2.6(e) and fail to make such payment within five (5) Business Days as required hereby, Purchaser may elect to be repaid some or all of such amount from the cash portion of the Escrow Fund.”
 
 
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1.4           A new Section 6.14 is hereby added to the Agreement as follows:

“16.4            Company Name .  Following the Closing, Purchaser shall use its reasonable best efforts to transition to a new name for the Company as soon as practicable; provided, however, that Purchaser shall not make any advertisements using the names “Integration Partners-NY Corporation” or “IPC-NY.”

Section 2. Remainder of Agreement.   Except as set forth herein, the Agreement is ratified and confirmed in all respects.  All other terms and conditions of the Agreement not in conflict with the terms of this Amendment shall remain in full force and effect.
 
Section 3.   Governing Law .  This Amendment shall be governed by, construed and enforced in accordance with the laws of the State of New York and not by choice of law principles or the laws of any other state.
 
Section 4.   Entire Agreement and Amendments .  The Agreement, as amended by this Amendment, embodies the entire agreement and understanding of the parties with respect to the subject matter hereof and supersedes all prior agreements and understandings between the parties.
 
Section 5.   Counterparts .  This Amendment (or the signature pages hereof) may be executed in any number of counterparts; all such counterparts shall be deemed to constitute one and the same instrument; and each of said counterparts shall be deemed an original hereof.
 
[ remainder of page intentionally left blank; signature page follows ]
 
 
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be executed and delivered as of the date first above written.
 
 
PURCHASER:
     
 
INTERCLOUD SYSTEMS, INC.
     
 
By:
/s/ Mark E. Munro
 
Name:
Mark E. Munro
 
Title:
Chief Executive Officer
     
 
COMPANY:
     
 
INTEGRATION PARTNERS-NY CORPORATION
     
 
By:
/s/ Frank Jadevaia
 
Name:
Frank Jadevaia
 
Title:
President
     
 
SELLERS:
 
     
 
/s/ Barton F. Graf, Jr.
 
Barton F. Graf, Jr.
     
 
/s/ David C. Nahabedian
 
David C. Nahabedian
     
 
/s/ Frank Jadevaia
 
Frank Jadevaia
 
 
[ Signature Page to Amendment No. 1 to Stock Purchase Agreement ]
 
 
 
 
Exhibit 10.3
 
NEITHER THIS SECURITY NOR THE SECURITIES INTO WHICH THIS SECURITY IS CONVERTIBLE HAVE BEEN REGISTERED WITH THE SECURITIES AND EXCHANGE COMMISSION OR THE SECURITIES COMMISSION OF ANY STATE IN RELIANCE UPON AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR PURSUANT TO AN AVAILABLE EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND IN ACCORDANCE WITH APPLICABLE STATE SECURITIES LAWS AS EVIDENCED BY A LEGAL OPINION OF COUNSEL TO THE TRANSFEROR TO SUCH EFFECT, THE SUBSTANCE OF WHICH SHALL BE REASONABLY ACCEPTABLE TO THE COMPANY.  THIS SECURITY AND THE SECURITIES ISSUABLE UPON CONVERSION OF THIS SECURITY MAY BE PLEDGED IN CONNECTION WITH A BONA FIDE MARGIN ACCOUNT OR OTHER LOAN SECURED BY SUCH SECURITIES.

Original Issue Date: January 1, 2014
Original Conversion Price: $16.99

$6,254,873.36
 
8% CONVERTIBLE PROMISSORY NOTE
DUE DECEMBER 31, 2014
 
THIS 8% CONVERTIBLE PROMISSORY NOTE is duly authorized and validly issued 8% Convertible Note of InterCloud Systems, Inc., a Delaware corporation, (the “ Company ”), having its principal place of business at 331 Newman Springs Road, Building 1, Suite 104, Red Bank, NJ 07701, (this “ Note ”).

FOR VALUE RECEIVED, the Company promises to pay to Frank Jadevaia, or his assigns, at 575 Brook Avenue, River Vale, NJ 07675 (the “ Holder ”), the principal sum of $6,254,873.36 on or before December 31, 2014 (the “ Maturity Date ”) or such earlier date as this Note is required or permitted to be repaid as provided hereunder, and to pay interest to the Holder on the aggregate unconverted and then outstanding principal amount of this Note in accordance with the provisions hereof.  This Note is subject to the following additional provisions:

Section 1.              Definitions .  For the purposes hereof, in addition to the terms defined elsewhere in this Note, the following terms shall have the following meanings:
 
“ Bankruptcy Event ” means any of the following events: (a) the Company or any Significant Subsidiary (as such term is defined in Rule 1-02(w) of Regulation S-X) thereof commences a case or other proceeding under any bankruptcy, reorganization, arrangement, adjustment of debt, relief of debtors, dissolution, insolvency or liquidation or similar law of any jurisdiction relating to the Company or any Significant Subsidiary thereof, (b) there is commenced against the Company or any Significant Subsidiary thereof any such case or proceeding that is not dismissed within 60 days after commencement, (c) the Company or any Significant Subsidiary thereof is adjudicated insolvent or bankrupt or any order of relief or other order approving any such case or proceeding is entered, (d) the Company or any Significant Subsidiary thereof suffers any appointment of any custodian or the like for it or any substantial part of its property that is not discharged or stayed within 60 calendar days after such appointment, (e) the Company or any Significant Subsidiary thereof makes a general assignment for the benefit of creditors, (f) the Company or any Significant Subsidiary thereof calls a meeting of its creditors with a view to arranging a composition, adjustment or restructuring of its debts or (g) the Company or any Significant Subsidiary thereof, by any act or failure to act, expressly indicates its consent to, approval of or acquiescence in any of the foregoing or takes any corporate or other action for the purpose of effecting any of the foregoing.
 
 
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 “ Business Day ” means any day except any Saturday, any Sunday, any day which is a federal legal holiday in the United States or any day on which banking institutions in the State of New York are authorized or required by law or other governmental action to close.
 
“ Conversion Shares ” means, collectively, the shares of Common Stock issuable upon conversion of this Note, or shares of Common Stock issuable at the election of the Company for the payment of interest hereunder, in accordance with the terms hereof.

“ Person ” means an individual or corporation, partnership, trust, incorporated or unincorporated association, joint venture, limited liability company, joint stock company, government (or an agency or subdivision thereof) or other entity of any kind.
 
“ Trading Day ” means a day on which the principal Trading Market is open for trading.

“ Trading Market ” means any of the following markets or exchanges on which the Common Stock is listed or quoted for trading on the date in question: the NYSE MKT, the Nasdaq Capital Market, the Nasdaq Global Market, the Nasdaq Global Select Market, the New York Stock Exchange or the OTC Bulletin Board (or any successors to any of the foregoing).

Section 2.              Interest .
 
(a)           Interest . The Company shall pay interest only to the Holder on the aggregate unconverted and then outstanding principal amount of this Note at the rate of 8% per annum.  All accrued interest hereunder shall be due and payable on the Maturity Date.  At the election of the Company, at such time(s) as interest may be due and payable hereunder, the Company may elect to pay such interest by the issuance to the Holder of shares of Common Stock, valued at the Conversion Price.
 
(b)           Interest Calculations . Interest shall be calculated on the basis of a 360-day year, consisting of twelve 30 calendar day periods, and shall accrue daily commencing on the Original Issue Date until payment in full of the outstanding principal, together with all accrued and unpaid interest, liquidated damages and other amounts which may become due hereunder, has been made.  Interest shall cease to accrue with respect to any principal amount converted.
 
 
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(c)           Prepayment .  The Company may prepay at any time without penalty or premium any principal or interest owing under this Note.
 
Section 3.               Conversion .
 
(a)           Voluntary Conversion . At any time after the Original Issue Date until this Note is no longer outstanding, this Note shall be convertible, in whole or in part, into shares of Common Stock at the option of the Holder, at any time and from time to time.  The Holder shall effect conversions by delivering to the Company a Notice of Conversion, the form of which is attached hereto as Annex A (each, a “ Notice of Conversion ”), specifying therein the principal amount and accrued interest of this Note to be converted and the date on which such conversion shall be effected (such date, the “ Conversion Date ”).  If no Conversion Date is specified in a Notice of Conversion, the Conversion Date shall be the date that such Notice of Conversion is deemed delivered hereunder.  No ink-original Notice of Conversion shall be required, nor shall any medallion guarantee (or other type of guarantee or notarization) of any Notice of Conversion form be required.   To effect conversions hereunder, the Holder shall not be required to physically surrender this Note to the Company unless the entire principal amount of this Note, plus all accrued and unpaid interest thereon, has been so converted. Conversions hereunder shall have the effect of lowering the outstanding principal amount of this Note in an amount equal to the applicable conversion.  The Holder and the Company shall maintain records showing the principal amount(s) converted and the date of such conversion(s).  The Company may deliver an objection to any Notice of Conversion within one (1) Business Day of delivery of such Notice of Conversion.   The Holder, and any assignee by acceptance of this Note, acknowledges and agrees that, by reason of the provisions of this paragraph, following conversion of a portion of this Note, the unpaid and unconverted principal amount of this Note may be less than the amount stated on the face hereof.
 
(b)           Conversion Price .  The conversion price in effect on any Conversion Date shall be equal to $16.99, as may be adjusted in accordance with Section 3(e) (the “ Conversion Price ”).
 
(c)           Mechanics of Conversion .
 
(i)             Conversion Shares Issuable .  The number of Conversion Shares issuable upon a conversion hereunder shall be determined by the quotient obtained by dividing (x) the principal amount and accrued interest of this Note to be converted by (y) the Conversion Price.

(ii)            Delivery of Certificate Upon Conversion . Not later than five (5) Trading Days after each Conversion Date (the “ Share Delivery Date ”), the Company shall deliver, or cause to be delivered, to the Holder a certificate or certificates representing the Conversion Shares.  The Holder acknowledges that the Conversion Shares have not been registered under the Securities Act of 1933, as amended (the “ Securities Act ”), and that certificates representing Conversion Shares shall bear customary restrictive legends stating that the Conversion Shares may only be transferred upon an effective registration statement under the Securities Act or an exemption from the registration provisions thereof, as evidenced by an opinion of counsel, in form and substance reasonably acceptable to the Company, to the effect that the transfer of such Conversion Shares does not require registration of such Conversion Shares under the Securities Act.
 
 
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(iii)           Failure to Deliver Certificates .  If, in the case of any Notice of Conversion, such certificate or certificates are not delivered to or as directed by the applicable Holder by the Share Delivery Date, the Holder shall be entitled to elect by written notice to the Company at any time on or before its receipt of such certificate or certificates, to rescind such Notice of Conversion, in which event the Company shall promptly return to the Holder any original Note delivered to the Company and the Holder shall promptly return to the Company the Common Stock certificates issued to such Holder pursuant to the rescinded Notice of Conversion.
 
(iv)          Fractional Shares . No fractional shares or scrip representing fractional shares shall be issued upon the conversion of this Note.  As to any fraction of a share which the Holder would otherwise be entitled to purchase upon such conversion, the Company shall at its election, either pay a cash adjustment in respect of such final fraction in an amount equal to such fraction multiplied by the Conversion Price or round up to the next whole share.
 
(d)           Forced Conversion .  Subject to the provisions of this Section 3(d), beginning on the six (6) month anniversary of the Original Issue Date, and continuing to the Maturity Date, the Company may deliver a notice to the Holder (a “ Forced Conversion Notice ) of its irrevocable election to force the Holder to convert all, but not less than all, of the amounts outstanding under this Note into shares of the Company’s Common Stock at the applicable Conversion Price.  The Company may only elect to provide a Forced Conversion Notice to the Holder in the event that the Common Stock is trading at 100% or higher of the Conversion Price for ten (10) consecutive Trading Days.  The Holder shall convert this Note pursuant to the provisions of this Note within five (5) Trading Days after receiving the Forced Conversion Notice.
 
(e)           Stock Dividends and Stock Splits .  If the Company, at any time while this Note is outstanding: (i) pays a stock dividend or otherwise makes a distribution or distributions payable in shares of Common Stock on shares of Common Stock, (ii) subdivides outstanding shares of Common Stock into a larger number of shares, (iii) combines (including by way of a reverse stock split) outstanding shares of Common Stock into a smaller number of shares or (iv) issues, in the event of a reclassification of shares of the Common Stock, any shares of capital stock of the Company, then the Conversion Price shall be multiplied by a fraction of which the numerator shall be the number of shares of Common Stock (excluding any treasury shares of the Company) outstanding immediately before such event, and of which the denominator shall be the number of shares of Common Stock outstanding immediately after such event.  Any adjustment made pursuant to this Section 3(e) shall become effective immediately after the record date for the determination of stockholder entitled to receive such dividend or distribution and shall become effective immediately after the effective date in the case of a subdivision, combination or re-classification.
 
 
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Section 4.               Events of Default .
 
(a)           “ Event of Default ” means, wherever used herein, any of the following events (whatever the reason for such event and whether such event shall be voluntary or involuntary or 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):
 
(i)             any default in the payment of (A) the principal amount of the Note or (B) interest and other amounts owing to the Holder on the Note, as and when the same shall become due and payable (whether on a Conversion Date or the Maturity Date or by acceleration or otherwise) which default, solely in the case of an interest payment or other default under clause (B) above, is not cured within five (5) Trading Days;
 
(ii)            the Company shall fail to observe or perform any other material covenant or agreement contained in the Note (other than a breach by the Company of its obligations to deliver shares of Common Stock to the Holder upon conversion, which is addressed in Section 3(c)(iii)) which failure is not cured, if possible to cure, within five (5) Trading Days after notice of such failure is delivered by the Holder to the Company ;
 
(iii)           the Common Stock shall not be eligible for listing or quotation for trading on a Trading Market and shall not be eligible to resume listing or quotation for trading thereon within five (5) Trading Days;
 
(iv)          the Company shall fail for any reason to deliver certificates to a Holder prior to the seventh (7 th ) Trading Day after a Conversion Date;
 
(v)           the Company or any Significant Subsidiary (as such term is defined in Rule 1-02(w) of Regulation S-X)  shall be subject to a Bankruptcy Event.
 
(b)           Remedies Upon Event of Default . If any Event of Default occurs, the outstanding principal amount of this Note, plus accrued but unpaid interest and any other amounts owing in respect thereof through the date of acceleration, shall become, at the Holder’s election, immediately due and payable.  Commencing five (5) Trading Days after the occurrence of any Event of Default that results in the eventual acceleration of this Note, the interest rate on this Note shall accrue at an interest rate equal to the lesser of 12% per annum or the maximum rate permitted under applicable law.  In connection with such acceleration described herein, the Holder need not provide, and the Company hereby waives, any presentment, demand, protest or other notice of any kind, and the Holder may immediately and without expiration of any grace period enforce any and all of its rights and remedies hereunder and all other remedies available to it under applicable law.  Such acceleration may be rescinded and annulled by the Holder at any time prior to payment hereunder and the Holder shall have all rights as a holder of the Note until such time, if any, as the Holder receives full payment pursuant to this Section 4(b).  No such rescission or annulment shall affect any subsequent Event of Default or impair any right consequent thereon.
 
 
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Section 5.               Miscellaneous .
 
(a)           Notices .  Any and all notices or other communications or deliveries to be provided by the Holder hereunder, including, without limitation, any Notice of Conversion, shall be in writing and delivered personally, by facsimile, or sent by a nationally recognized overnight courier service, addressed to the Company, at the address set forth above, or such other facsimile number or address as the Company may specify for such purposes by notice to the Holder delivered in accordance with this Section 5(a).  Any and all notices or other communications or deliveries to be provided by the Company hereunder shall be in writing and delivered personally, by facsimile, or sent by a nationally recognized overnight courier service addressed to the Holder, at the address set forth above, or such other facsimile number or address as the Holder may specify for such purposes by notice to the Company delivered in accordance with this Section 5(a).  Any notice or other communication or deliveries hereunder shall be deemed given and effective on the earliest of (i) the date of transmission, if such notice or communication is delivered via facsimile at the facsimile number set forth on the signature pages attached hereto prior to 5:30 p.m. (New York City time) on any date, (ii) the next Trading Day after the date of transmission, if such notice or communication is delivered via facsimile at the facsimile number set forth on the signature pages attached hereto on a day that is not a Trading Day or later than 5:30 p.m. (New York City time) on any Trading Day, (iii) the second Trading Day following the date of mailing, if sent by U.S. nationally recognized overnight courier service or (iv) upon actual receipt by the party to whom such notice is required to be given.
 
(b)           Subordination. This Note is a direct debt obligation of the Company.  However, this Note shall be subordinate to all other debentures and secured loan obligations of the Company.
 
(c)           Lost or Mutilated Note .  If this Note shall be mutilated, lost, stolen or destroyed, the Company shall execute and deliver, in exchange and substitution for and upon cancellation of a mutilated Note, or in lieu of or in substitution for a lost, stolen or destroyed Note, a new Note for the principal amount of this Note so mutilated, lost, stolen or destroyed, but only upon receipt of evidence of such loss, theft or destruction of such Note, and of the ownership hereof, reasonably satisfactory to the Company.
 
(d)           Governing Law .  All questions concerning the construction, validity, enforcement and interpretation of this Note shall be governed by and construed and enforced in accordance with the internal laws of the State of New York, without regard to the principles of conflict of laws thereof.  Each party agrees that all legal proceedings concerning the interpretation, enforcement and defense of the transactions contemplated by the Note (whether brought against a party hereto or its respective affiliates, directors, officers, shareholder, employees or agents) shall be commenced in the state and federal courts sitting in the City of New York, Borough of Manhattan (the “ New York Courts ”).  Each party hereto hereby irrevocably submits to the exclusive jurisdiction of the New York Courts for the adjudication of any dispute hereunder or in connection herewith or with any transaction contemplated hereby or discussed herein (including with respect to the enforcement of the Note), and hereby irrevocably waives, and agrees not to assert in any suit, action or proceeding, any claim that it is not personally subject to the jurisdiction of such New York Courts, or such New York Courts are improper or inconvenient venue for such proceeding.  Each party hereby irrevocably waives personal service of process and consents to process being served in any such suit, action or proceeding by mailing a copy thereof via registered or certified mail or overnight delivery (with evidence of delivery) to such party at the address in effect for notices to it under this Note and agrees that such service shall constitute good and sufficient service of process and notice thereof.  Nothing contained herein shall be deemed to limit in any way any right to serve process in any other manner permitted by applicable law. Each party hereto hereby irrevocably waives, to the fullest extent permitted by applicable law, any and all right to trial by jury in any legal proceeding arising out of or relating to this Note or the transactions contemplated hereby. If any party shall commence an action or proceeding to enforce any provisions of this Note, then the prevailing party in such action or proceeding shall be reimbursed by the other party for its attorney’s fees and other costs and expenses incurred in the investigation, preparation and prosecution of such action or proceeding.
 
 
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(e)           Amendments; Waiver .  No provision of this Note may be waived, modified, supplemented or amended except in a written instrument signed, in the case of an amendment, by each of the Company and the Holder or, in the case of a waiver, by the party against whom enforcement of any such waived provision is sought.  Any waiver by the Company or the Holder of a breach of any provision of this Note shall not operate as or be construed to be a waiver of any other breach of such provision or of any breach of any other provision of this Note.  The failure of the Company or the Holder to insist upon strict adherence to any term of this Note on one or more occasions shall not be considered a waiver or deprive that party of the right thereafter to insist upon strict adherence to that term or any other term of this Note on any other occasion.
 
(f)            Severability .  If any provision of this Note is invalid, illegal or unenforceable, the balance of this Note shall remain in effect, and if any provision is inapplicable to any Person or circumstance, it shall nevertheless remain applicable to all other Persons and circumstances.  If it shall be found that any interest or other amount deemed interest due hereunder violates the applicable law governing usury, the applicable rate of interest due hereunder shall automatically be lowered to equal the maximum rate of interest permitted under applicable law. The Company covenants (to the extent that it may lawfully do so) that it shall not at any time insist upon, plead, or in any manner whatsoever claim or take the benefit or advantage of, any stay, extension or usury law or other law which would prohibit or forgive the Company from paying all or any portion of the principal of or interest on this Note as contemplated herein, wherever enacted, now or at any time hereafter in force, or which may affect the covenants or the performance of this Note, and the Company (to the extent it may lawfully do so) hereby expressly waives all benefits or advantage of any such law, and covenants that it will not, by resort to any such law, hinder, delay or impede the execution of any power herein granted to the Holder, but will suffer and permit the execution of every such as though no such law has been enacted.
 
(g)           Successors and Assigns .  The terms and conditions of this Note shall inure to the benefit of and be binding upon the respective successors and assigns of the parties. The Company may not assign this note or delegate any of its obligations hereunder without the written consent of the Holder. The Holder may assign this Note and its rights hereunder at any time without consent of Company.
 
(h)           Next Business Day .  Whenever any payment or other obligation hereunder shall be due on a day other than a Business Day, such payment shall be made on the next succeeding Business Day.
 
(i)            Headings .  The headings contained 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.
 
(Signature Pages Follow)
 
 
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IN WITNESS WHEREOF, the Company has caused this Note to be duly executed by a duly authorized officer as of the date first above indicated.
 
INTERCLOUD SYSTEMS, INC.
By:
/s/ Lawrence M. Sands
 
Name: Lawrence M. Sands
Title: Senior Vice President
 
Facsimile No. for delivery of Notices: _______________
 
 
 
 
 
ANNEX A

NOTICE OF CONVERSION
 
The undersigned hereby elects to convert principal and interest under the 8% Convertible Note due December 31, 2014 of InterCloud Systems, Inc., a Delaware corporation (the “ Company ”), into shares of common stock (the “ Common Stock ”), of the Company according to the conditions hereof, as of the date written below.  If shares of Common Stock are to be issued in the name of a person other than the undersigned, the undersigned will pay all transfer taxes payable with respect thereto and is delivering herewith such certificates and opinions as reasonably requested by the Company in accordance therewith.  No fee will be charged to the holder for any conversion, except for such transfer taxes, if any.
 
Conversion calculations:
 
Date to Effect Conversion:
   
 
­
 
Principal and Interest Amount of Note to be Converted:
   
   
 
Number of shares of Common Stock to be issued:
   
   
 
Signature:
 
   
Frank Jadevaia
   
 
Address for Delivery of Common Stock Certificates:
   
   
   
   
   
   
 
 
 
Exhibit 99.1
 
InterCloud Announces the Completion of Its Acquisition of Integration Partners-NY Corp.
 
RED BANK, N.J., Jan. 2, 2014 (GLOBE NEWSWIRE) -- InterCloud Systems, Inc. (Nasdaq:ICLD) (the "Company" or "InterCloud"), a single-source provider of end-to end IT and telecom solutions to the service provider and corporate enterprise markets through cloud platforms and professional services, announced today the acquisition of Integration Partners-NY Corporation ("IPC-NY"). IPC-NY serves both corporate enterprises and services providers, and is expected to support the Company's cloud and managed services capabilities.   IPC-NY has enterprise and service provider customers and will help distribute the Company's cloud platform to its new and existing customer base. IPC-NY has shown tremendous growth over the last five years and its 2013 gross revenues of approximately $25 million and 2013 net income of approximately $3.5 million are completely accretive to InterCloud's revenue and earnings. 
 
InterCloud CEO, Mark E. Munro, stated, "We are excited to have completed this important acquisition.  There are significant growth opportunities in cloud-based solutions that will allow both our enterprise and service provider customers to integrate their applications and services into our cloud platform. InterCloud and IPC-NY create a dynamic organization that leverages our capabilities to deliver and support the many facets of cloud applications and managed services.  We are looking forward to an exciting year in 2014 and beyond."
 
About InterCloud Systems, Inc.
 
InterCloud Systems, Inc. is a global single-source provider of value-added services for both corporate enterprises and service providers. The Company offers cloud and managed services, professional consulting services and voice, data and optical solutions to assist its customers in meeting their changing technology demands. Its engineering, design, installation and maintenance services support the build-out and operation of some of the most advanced enterprise, fiber optic, Ethernet, and wireless networks. Additional information regarding InterCloud may be found on the Company's website at www.intercloudsys.com.
 
About Integration Partners-NY Corporation
 
Integration Partners-NY is a managed service provider offering its enterprise and service provider clients an end-to-end portfolio of IT solutions including voice, data, optical and unified communications services. IPC-NY consults, designs, builds, implements, and services IT networks for enterprise and service provider networks. The synergies with InterCloud will allow its clients to transition from existing IT networks to open architecture Cloud based solutions. 
 
Forward-looking statements:
 
The above news release contains forward-looking statements. The statements contained in this document that are not statements of historical fact, including but not limited to, statements identified by the use of terms such as "anticipate," "appear," "believe," "could," "estimate," "expect," "hope," "indicate," "intend," "likely," "may," "might," "plan," "potential," "project," "seek," "should," "will," "would," and other variations or negative expressions of these terms, including statements related to expected market trends and the Company's performance, are all "forward-looking statements" within the meaning of the Private Securities Litigation Reform Act of 1995 and involve a number of risks and uncertainties. These statements are based on assumptions that management believes are reasonable based on currently available information, and include statements regarding the intent, belief or current expectations of the Company and its management. Prospective investors are cautioned that any such forward-looking statements are not guarantees of future performances, and are subject to a wide range of external factors, uncertainties, business risks, and other risks identified in filings made by the company with the Securities and Exchange Commission. Actual results may differ materially from those indicated by such forward-looking statements. The Company expressly disclaims any obligation or undertaking to update or revise any forward-looking statement contained herein to reflect any change in the company's expectations with regard thereto or any change in events, conditions or circumstances upon which any statement is based except as required by applicable law and regulations.
 
CONTACT: Investor Relations
RedChip Companies, Inc.
Mike Bowdoin, Vice President
800-733-2447, ext. 110
mike@redchip.com