Attached files
THIS DEBENTURE AND THE SECURITIES INTO WHICH IT IS CONVERTIBLE
(COLLECTIVELY, THE "SECURITIES"), HAVE NOT BEEN REGISTERED WITH THE
UNITED STATES SECURITIES AND EXCHANGE COMMISSION OR THE SECURITIES
COMMISSION OF ANY STATE. THE SECURITIES ARE BEING OFFERED PURSUANT TO
A SAFE HARBOR FROM REGISTRATION UNDER REGULATION D PROMULGATED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"). THE SECURITIES
ARE "RESTRICTED" AND MAY NOT BE OFFERED OR SOLD UNLESS THE SECURITIES
ARE REGISTERED UNDER THE ACT, OR ELIGIBLE TO BE OFFERED OR SOLD
PURSUANT TO AVAILABLE EXEMPTIONS FROM THE REGISTRATION REQUIREMENTS OF
THE ACT AND THE COMPANY WILL BE PROVIDED WITH OPINION OF COUNSEL, IN
FORM REASONABLY ACCEPTABLE TO COMPANY COUNSEL, CONFIRMING THAT SUCH
EXEMPTIONS ARE AVAILABLE.
MY SCREEN MOBILE, INC.
Unsecured Convertible Debenture
December 16, 2009
No. GFE-1 US$2,000,000
This Unsecured Convertible Debenture (the "Debenture") is issued
on December 16, 2009 (the "Closing Date") by My Screen Mobile, Inc., a
Delaware corporation (the "Company"), to Global Financial Enterprises,
LLC, a Florida limited liability company (together with its permitted
successors and assigns, the "Holder") pursuant to exemptions from
registration under the Securities Act of 1933, as amended.
ARTICLE I.
Section 1.01 Principal and Interest. For value received, the
Company hereby promises to pay to the order of the Holder on December
16, 2012 (the "Maturity Date") in lawful money of the United States of
America and in immediately available funds, the principal sum of Two
Million U.S. Dollars (US$2,000,000) together with interest on the
unpaid principal of this Debenture at the rate of five percent (5%)
per annum simple interest (the "Interest Rate") from the date hereof
until paid, as more specifically provided in Section 1.05 below.
Section 1.02 Optional Conversion. The Holder is entitled at
its option to convert, at any time and from time to time after the
Closing Date and until this Debenture is no longer outstanding, all or
any part of the principal amount of the Debenture, plus accrued and
unpaid interest, into shares (the "Conversion Shares") of the
Company's common stock, par value US$.001 per share ("Common Stock"),
at the price per share equal to US One Dollar and Five Cents
(US$1.05) (the "Conversion Price"), subject to adjustment as herein
provided. To effect conversions hereunder, the Holder shall not be
required to physically surrender this Debenture to the Company unless
the entire principal amount of this Debenture, 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 Debenture 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). In the event
of any dispute or discrepancy, the records of the Holder shall be
controlling and determinative in the absence of manifest error. The
Holder, and any assignee by acceptance of this Debenture, acknowledge
and agree that, by reason of the provisions of this paragraph,
following conversion of a portion of this Debenture, the unpaid and
unconverted principal amount of this Debenture may be less than the
amount stated on the face hereof. No fraction of shares or scrip
representing fractions of shares will be issued on conversion, but the
number of shares issuable shall be rounded up to the nearest whole
share. To convert this Debenture, the Holder hereof shall deliver
written notice thereof, substantially in the form of Exhibit "A" to
this Debenture, with appropriate insertions (the "Conversion Notice"),
to the Company at its address as set forth herein. The date upon
which the conversion shall be effective (the "Conversion Date") shall
be deemed to be the date set forth in the Conversion Notice.
Section 1.03 Reservation of Common Stock. The Company shall
reserve and keep available out of its authorized but unissued shares
of Common Stock, solely for the purpose of effecting the conversion of
this Debenture, such number of shares of Common Stock as shall from
time to time be sufficient to effect such conversion, based upon the
Conversion Price. If at any time the Company does not have a
sufficient number of Conversion Shares authorized and available, the
Company shall take such action as is required to increase the number
of Conversion Shares authorized and available in accordance with the
terms and provisions of the Securities Purchase Agreement entered into
between the Company and the Holder pursuant to which this Debenture
was issued (the "SPA").
Section 1.04 Mandatory Conversion. The Company is entitled to
require that the Holder convert all or any portion of this Debenture
on the terms set forth herein upon the achievement of either: (a) the
Company having audited full year net income in excess of US One
Million Dollars (US$1,000,000) or (b) the Company having audited full
year revenues in excess of US Ten Million Dollars (US$10,000,000).
Section 1.05 Interest.
(1) Payment of Interest in Cash. The Company shall pay
interest to the Holder on the aggregate unconverted and then
outstanding principal amount of this Debenture at the Interest Rate,
payable quarterly on January 1, April 1, July 1 and October 1,
beginning on the first such date after the Closing Date, on each
Conversion Date (as to that principal amount then being converted) and
on the Maturity Date (each such date, an "Interest Payment Date") (if
any Interest Payment Date is not a business day, then the applicable
payment shall be due on the next succeeding business day), in cash, by
wire transfer to an account designated by the Holder. Holder shall
deduct the first (1st) interest payment from the proceeds of the First
Closing (as defined in the SPA).
(2) Interest Calculations. Interest shall be calculated on
the basis of a 360-day year, consisting of twelve (12), thirty (30)
calendar day periods, and shall accrue daily commencing on the Closing
Date until payment in full of the outstanding principal, together with
all accrued and unpaid interest and other amounts which may become due
hereunder, has been made.
(3) Late Fee. All overdue accrued and unpaid interest to be
paid hereunder shall entail a late fee at an interest rate equal to
the lesser of eighteen percent (18%) per annum or the maximum rate
permitted by applicable law ("Late Fees") which shall accrue daily
from the date such interest is due hereunder through and including the
date of payment in full.
(4) Prepayment. Except as otherwise set forth in this
Debenture, the Company may not prepay any portion of the principal
amount of this Debenture without the prior written consent of the
Holder.
Section 1.06 Mechanics of Conversion.
(1) Conversion Shares Issuable Upon Conversion of Debenture.
The number of Conversion Shares issuable upon a conversion hereunder
shall be determined by the quotient obtained by dividing (x) the
outstanding principal amount of this Debenture to be converted, by (y)
the Conversion Price then in effect.
(2) Delivery of Certificate Upon Conversion. Not later than
ten (10) business days after each Conversion Date (the "Share Delivery
Date"), the Company shall deliver, or cause to be delivered, to the
Holder (A) a certificate or certificates representing the Conversion
Shares representing the number of Conversion Shares being acquired
upon the conversion of this Debenture and (B) a bank check (or
evidence of a wire transfer to Holder's account) in the amount of
accrued and unpaid interest to the extent any such interest was not
converted hereunder.
(3) 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 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 Conversion, in which event the Company
shall promptly return to the Holder any original Debenture delivered
to the Company and the Holder shall promptly return to the Company the
Common Stock certificates representing the principal amount of this
Debenture unsuccessfully tendered for conversion to the Company.
(4) Obligation Absolute; Partial Liquidated Damages. The
Company's obligations to issue and deliver the Conversion Shares upon
conversion of this Debenture in accordance with the terms hereof are
absolute and unconditional, irrespective of any action or inaction by
the Holder to enforce the same, any waiver or consent with respect to
any provision hereof, the recovery of any judgment against any person
or entity or any action to enforce the same, or any setoff,
counterclaim, recoupment, limitation or termination, or any breach or
alleged breach by the Holder or any other person or entity of any
obligation to the Company or any violation or alleged violation of law
by the Holder or any other person or entity, and irrespective of any
other circumstance which might otherwise limit such obligation of the
Company to the Holder in connection with the issuance of such
Conversion Shares; provided, however, that such delivery shall not
operate as a waiver by the Company of any such action the Company may
have against the Holder. In the event the Holder of this Debenture
shall elect to convert any or all of the outstanding principal amount
hereof in accordance with the terms of this Debenture, the Company may
not refuse conversion based on any claim that the Holder or anyone
associated or affiliated with the Holder has been engaged in any
violation of law, agreement or for any other reason, unless an
injunction from a court, on notice to Holder, restraining and or
enjoining conversion of all or part of this Debenture shall have been
sought and obtained, and the Company posts a surety bond for the
benefit of the Holder in the amount of 150% of the outstanding
principal amount of this Debenture, which is subject to the
injunction, which bond shall remain in effect until the completion of
arbitration/litigation of the underlying dispute and the proceeds of
which shall be payable to such Holder to the extent it obtains
judgment. In the absence of such injunction, the Company shall issue
Conversion Shares upon a properly noticed conversion. If the Company
fails for any reason to deliver to the Holder such certificate or
certificates pursuant to Section 1.06(2) by the Share Delivery Date,
the Company shall pay to such Holder, in cash, as liquidated damages
and not as a penalty, for each $1,000 of principal amount being
converted, $0.50 per day for each day after the Share Delivery Date
until such certificates are delivered. Nothing herein shall limit a
Holder's right to pursue actual damages or declare an Event of Default
pursuant to Section 3.01 hereof for the Company's failure to deliver
Conversion Shares within the period specified herein and such Holder
shall have the right to pursue all remedies available to it hereunder,
at law or in equity, including, without limitation, a decree of
specific performance and/or injunctive relief. The exercise of any
such rights shall not prohibit the Holder from seeking to enforce
damages pursuant to any other Section hereof or under applicable law.
(5) Transfer Taxes. The issuance of certificates for shares
of the Common Stock on conversion of this Debenture shall be made
without charge to the Holder hereof for any documentary stamp or
similar taxes that may be payable in respect of the issue or delivery
of such certificates, provided that the Company shall not be required
to pay any tax that may be payable in respect of any transfer involved
in the issuance and delivery of any such certificate upon conversion
in a name other than that of the Holder of this Debenture and the
Company shall not be required to issue or deliver such certificates
unless or until the person or persons requesting the issuance thereof
shall have paid to the Company the amount of such tax or shall have
established to the satisfaction of the Company that such tax has been
paid.
ARTICLE II.
Section 2.01 Amendments and Waiver of Default. The Debenture
may not be amended. Notwithstanding the above, without the consent of
the Holder, the Debenture may be amended to cure any ambiguity, defect
or inconsistency, or to provide for assumption of the Company
obligations to the Holder.
ARTICLE III.
Section 3.01 Events of Default. An Event of Default is
defined as follows: (a) failure by the Company to pay amounts due
hereunder within ten (10) days of the date any such amounts are due;
(b) failure by the Company's transfer agent to issue Common Stock to
the Holder within five (5) business days of the Company's receipt of
the attached Notice of Conversion from Holder; (c) failure by the
Company for ten (10) days after notice to it to comply with any of its
other agreements in the Debenture; (d) any event of bankruptcy or
insolvency by the Company; (e) a breach by the Company of its
obligations under the SPA which is not cured by the Company within ten
(10) days after receipt of written notice thereof. Upon the
occurrence of an Event of Default, the interest on this Debenture
shall immediately accrue at an Interest Rate equal to the lesser of
eighteen percent (18%) per annum or the maximum rate permitted by
applicable law, and, in addition to all other rights or remedies the
Holder may have, at law or in equity, the Holder may, in its sole
discretion, accelerate full repayment of all debentures outstanding
and accrued interest thereon or may convert all debentures outstanding
and accrued interest thereon into shares of Common Stock pursuant to
Section 1.02 herein. In connection with the Holder's rights hereunder
upon an Event of Default, 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 enforce any and all of its rights
and remedies hereunder and all other remedies available to it in
equity or under applicable law.
ARTICLE IV.
Section 4.01 Adjustments.
(1) Stock Dividends and Stock Splits. If the Company, at any
time while this Debenture is outstanding: (i) pays a stock dividend or
otherwise makes a distribution or distributions payable in shares of
Common Stock on outstanding 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 Common Stock,
any shares of capital stock of the Company, then the Conversion Price
shall be multiplied by a fraction, the numerator of which shall be the
number of shares of Common Stock (excluding any treasury shares of the
Company) outstanding immediately before such event, and the
denominator of which shall be the number of shares of Common Stock
outstanding immediately after such event. Any adjustment made
pursuant to this Section shall become effective immediately after the
record date for the determination of stockholders 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.
(2) Subsequent Equity Sales. If, at any time while this
Debenture is outstanding, the Company or any of its subsidiaries, as
applicable, sells or grants any option to purchase or sells or grants
any right to reprice, or otherwise disposes of or issues any Common
Stock or any debt, preferred stock, rights, options, warrants or other
instrument that is at any time convertible into or exercisable or
exchangeable for, or otherwise entitles the holder thereof to receive,
Common Stock ("Common Stock Equivalents") (which, for avoidance of
doubt, shall not include any shares of Common Stock issued by the
Company upon conversion of, or payment of interest on, this
Debenture), entitling any person or entity to acquire shares of Common
Stock at an effective price per share that is lower than the then
Conversion Price (such lower price, the "Base Conversion Price" and
such issuances, collectively, a "Dilutive Issuance") (if the holder of
the Common Stock or Common Stock Equivalents so issued shall at any
time, whether by operation of purchase price adjustments, reset
provisions, floating conversion, exercise or exchange prices or
otherwise, or due to warrants, options or rights per share which are
issued in connection with such issuance, be entitled to receive shares
of Common Stock at an effective price per share that is lower than the
Conversion Price, such issuance shall be deemed to have occurred for
less than the Conversion Price on such date of the Dilutive Issuance),
then the Conversion Price shall be reduced to equal the Base
Conversion Price, provided however, that with regard to any issuance
pursuant to an investment into the Company closing on or prior January
30, 2010 for a minimum of Ten Million Dollars ($10,000,000), so long
as a minimum of Five Million Dollars ($5,000,000) is received by the
Company on or prior to January 30, 2010, then the Conversion Price
shall be reduced to one half of the difference between the Conversion
Price and the Base Conversion Price. Such adjustment shall be made
whenever such Common Stock or Common Stock Equivalents are
issued. Notwithstanding the foregoing, no adjustment will be made
under this Section 4.01(2) in respect of an "Exempt Issuance" (as
hereinafter defined). If the Company enters into a "Variable Rate
Transaction" (as hereinafter defined), the Company shall be deemed to
have issued Common Stock or Common Stock Equivalents at the lowest
possible conversion price at which such securities may be converted or
exercised. The Company shall notify the Holder in writing, no later
than one (1) business day following the issuance of any Common Stock
or Common Stock Equivalents subject to this Section 4.01(2),
indicating therein the applicable issuance price, or applicable reset
price, exchange price, conversion price and other pricing terms (such
notice, the "Dilutive Issuance Notice"). For purposes of
clarification, whether or not the Company provides a Dilutive Issuance
Notice pursuant to this Section 4.01(2), upon the occurrence of any
Dilutive Issuance, the Holder is entitled to receive a number of
Conversion Shares based upon the Base Conversion Price on or after the
date of such Dilutive Issuance, regardless of whether the Holder
accurately refers to the Base Conversion Price in the Notice of
Conversion. For purposes of this Debenture, the term "Exempt
Issuance" means the issuance of: (a) shares of Common Stock or options
to employees, officers or directors of the Company pursuant to any
stock or option plan duly adopted for such purpose, by a majority of
the non-employee members of the Board of Directors or a majority of
the members of a committee of non-employee directors established for
such purpose, and (b) securities issued pursuant to acquisitions or
strategic transactions approved by a majority of the disinterested
directors of the Company, provided that any such issuance shall only
be to a person or entity which is, itself or through its subsidiaries,
an operating company in a business synergistic with the business of
the Company and in which the Company receives benefits in addition to
the investment of funds, but shall not include a transaction in which
the Company is issuing securities primarily for the purpose of raising
capital or to an entity whose primary business is investing in
securities. For purposes of this Debenture, the term "Variable Rate
Transaction" means a transaction in which the Company: (i) issues or
sells any debt or equity securities that are convertible into,
exchangeable or exercisable for, or include the right to receive,
additional shares of Common Stock either: (A) at a conversion price,
exercise price or exchange rate or other price that is based upon,
and/or varies with, the trading prices of or quotations for the shares
of Common Stock at any time after the initial issuance of such debt or
equity securities, or (B) with a conversion, exercise or exchange
price that is subject to being reset at some future date after the
initial issuance of such debt or equity security or upon the
occurrence of specified or contingent events directly or indirectly
related to the business of the Company or the market for the Common
Stock, or (ii) enters into any agreement, including, but not limited
to, an equity line of credit, whereby the Company may sell securities
at a future determined price.
(3) Subsequent Rights Offerings. If the Company, at any time
while the Debenture is outstanding, shall issue rights, options or
warrants to all holders of Common Stock (and not to the Holder)
entitling them to subscribe for or purchase shares of Common Stock at
a price per share that is lower than the closing bid price per share
of Common Stock as reported on the Principal Trading Market (as
defined in the SPA)(the "Closing Bid Price") on the record date
referenced below, then the Conversion Price shall be multiplied by a
fraction, the denominator of which shall be the number of shares of
the Common Stock outstanding on the date of issuance of such rights,
options or warrants, plus the number of additional shares of Common
Stock offered for subscription or purchase, and the numerator of which
shall be the number of shares of the Common Stock outstanding on the
date of issuance of such rights, options or warrants, plus the number
of shares which the aggregate offering price of the total number of
shares so offered (assuming delivery to the Company in full of all
consideration payable upon exercise of such rights, options or
warrants) would purchase at such Closing Bid Price. Such adjustment
shall be made whenever such rights, options or warrants are issued,
and shall become effective immediately after the record date for the
determination of stockholders entitled to receive such rights, options
or warrants.
(4) Pro Rata Distributions. If the Company, at any time while
this Debenture is outstanding, distributes to all holders of Common
Stock (and not to the Holder) evidences of its indebtedness or assets
(including cash and cash dividends) or rights or warrants to subscribe
for or purchase any security (other than the Common Stock, which shall
be subject to Section 4.01(2)), then in each such case the Conversion
Price shall be adjusted by multiplying such Conversion Price in effect
immediately prior to the record date fixed for determination of
stockholders entitled to receive such distribution by a fraction, the
denominator of which shall be the Closing Bid Price determined as of
the record date mentioned above, and the numerator of which shall be
such Closing Bid Price on such record date, less the then fair market
value at such record date of the portion of such assets or evidence of
indebtedness so distributed applicable to one (1) outstanding share of
Common Stock, as determined by the Board of Directors of the Company
in good faith. In either case the adjustments shall be described in a
statement delivered to the Holder describing the portion of assets or
evidences of indebtedness so distributed or such subscription rights
applicable to one (1) share of Common Stock. Such adjustment shall be
made whenever any such distribution is made and shall become effective
immediately after the record date mentioned above.
(5) Fundamental Transaction. If, at any time while this
Debenture is outstanding: (i) the Company effects any merger or
consolidation of the Company with or into another Person, (ii) the
Company effects any sale of all or substantially all of its assets in
one transaction or a series of related transactions, (iii) any tender
offer or exchange offer (whether by the Company or another Person) is
completed pursuant to which holders of Common Stock are permitted to
tender or exchange their shares for other securities, cash or
property, or (iv) the Company effects any reclassification of the
Common Stock or any compulsory share exchange pursuant to which the
Common Stock is effectively converted into or exchanged for other
securities, cash or property (in any such case, a "Fundamental
Transaction"), then upon any subsequent conversion of this Debenture,
the Holder shall have the right to receive, for each Conversion Share
that would have been issuable upon such conversion immediately prior
to the occurrence of such Fundamental Transaction, the same kind and
amount of securities, cash or property as it would have been entitled
to receive upon the occurrence of such Fundamental Transaction if it
had been, immediately prior to such Fundamental Transaction, the
holder of one (1) share of Common Stock (the "Alternate
Consideration"). For purposes of any such conversion, the
determination of the Conversion Price shall be appropriately adjusted
to apply to such Alternate Consideration based on the amount of
Alternate Consideration issuable in respect of one (1) share of Common
Stock in such Fundamental Transaction, and the Company shall apportion
the Conversion Price among the Alternate Consideration in a reasonable
manner reflecting the relative value of any different components of
the Alternate Consideration. If holders of Common Stock are given any
choice as to the securities, cash or property to be received in a
Fundamental Transaction, then the Holder shall be given the same
choice as to the Alternate Consideration it receives upon any
conversion of this Debenture following such Fundamental
Transaction. To the extent necessary to effectuate the foregoing
provisions, any successor to the Company or surviving entity in such
Fundamental Transaction shall issue to the Holder a new debenture
consistent with the foregoing provisions and evidencing the Holder's
right to convert such debenture into Alternate Consideration. The
terms of any agreement pursuant to which a Fundamental Transaction is
effected shall include terms requiring any such successor or surviving
entity to comply with the provisions of this Section 4.01(5) and
insuring that this Debenture (or any such replacement security) will
be similarly adjusted upon any subsequent transaction analogous to a
Fundamental Transaction.
(6) Calculations. All calculations under this Section 4.01
shall be made to the nearest cent or the nearest 1/100th of a share,
as the case may be. For purposes of this Section 4.01, the number of
shares of Common Stock deemed to be issued and outstanding as of a
given date shall be the sum of the number of shares of Common Stock
(excluding any treasury shares of the Company) issued and outstanding.
(7) Notice to the Holder.
(a) Adjustment to Conversion Price. Whenever the
Conversion Price is adjusted pursuant to any provision of this Section
4.01, the Company shall promptly deliver to Holder a notice setting
forth the Conversion Price after such adjustment and setting forth a
brief statement of the facts requiring such adjustment.
(b) Notice to Allow Conversion by Holder. If: (A) the
Company shall declare a dividend (or any other distribution in
whatever form) on the Common Stock, (B) the Company shall declare a
special nonrecurring cash dividend on or a redemption of the Common
Stock, (C) the Company shall authorize the granting to all holders of
the Common Stock of rights or warrants to subscribe for or purchase
any shares of capital stock of any class or of any rights, (D) the
approval of any stockholders of the Company shall be required in
connection with any reclassification of the Common Stock, any
consolidation or merger to which the Company is a party, any sale or
transfer of all or substantially all of the assets of the Company, of
any compulsory share exchange whereby the Common Stock is converted
into other securities, cash or property, or (E) the Company shall
authorize the voluntary or involuntary dissolution, liquidation or
winding up of the affairs of the Company, then, in each case, the
Company shall cause to be filed at each office or agency maintained
for the purpose of conversion of this Debenture, and shall cause to be
delivered to the Holder at its last address as it shall appear upon
the Company's records, at least twenty (20) calendar days prior to the
applicable record or effective date hereinafter specified, a notice
stating: (x) the date on which a record is to be taken for the purpose
of such dividend, distribution, redemption, rights or warrants, or if
a record is not to be taken, the date as of which the holders of the
Common Stock of record to be entitled to such dividend, distributions,
redemption, rights or warrants are to be determined, or (y) the date
on which such reclassification, consolidation, merger, sale, transfer
or share exchange is expected to become effective or close, and the
date as of which it is expected that holders of the Common Stock of
record shall be entitled to exchange their shares of the Common Stock
for securities, cash or other property deliverable upon such
reclassification, consolidation, merger, sale, transfer or share
exchange, provided that the failure to deliver such notice or any
defect therein or in the delivery thereof shall not affect the
validity of the corporate action required to be specified in such
notice. The Holder is entitled to convert this Debenture during the
10-day period commencing on the date of such notice through the
effective date of the event triggering such notice.
ARTICLE V.
Section 5.01 Holder Not Deemed a Stockholder. Except as
otherwise specifically provided herein (specifically including,
without limitation, Section 4.01(7) above), no holder, as such, of
this Debenture shall be entitled to vote or receive dividends or be
deemed the holder of shares of capital stock of the Company for any
purpose, nor shall anything contained in this Debenture be construed
to confer upon the Holder, as such, any of the rights of a stockholder
of the Company or any right to vote, give or withhold consent to any
corporate action (whether any reorganization, issue of stock,
reclassification of stock, consolidation, merger, conveyance or
otherwise), receive notice of meetings, receive dividends or
subscription rights, or otherwise, prior to the issuance to the Holder
of the Conversion Shares which he or she is then entitled to receive
upon the conversion of this Debenture. Notwithstanding this Section
6.01, the Company will provide the Holder with copies of the same
notices and other information given to the stockholders of the Company
generally, contemporaneously with the giving thereof to the
stockholders.
ARTICLE VI.
Section 6.01 Notice. Any notices, consents, waivers or other
communications required or permitted to be given under the terms of
this Debenture must be in writing and will be deemed to have been
delivered: (i) upon receipt, when delivered personally; (ii) upon
receipt, when sent by facsimile (provided confirmation of receipt is
received by the sending party, transmission is mechanically or
electronically generated and kept on file by the sending party); or
(iii) one business day after deposit with a nationally recognized
overnight delivery service, in each case properly addressed to the
party to receive the same. The addresses and facsimile numbers for
such communications shall be:
If to the Company, to:
My Screen Mobile, Inc.
70 Yorkville Ave.
Suite 300
Toronto, Ontario, M5R 1B9
Attention: Maurizio Angelone, CEO
Facsimile: (416) 413-9806
With a copy to:
James G. Dodrill II, P.A.
5800 Hamilton Way
Boca Raton, FL 33496
Attention: James Dodrill, Esq.
Telephone: (561) 862-0529
Facsimile: (561) 892-7787
If to the Holder:
Global Financial Enterprises, LLC
7080 IsleGrove Place
Boca Raton, FL 33433
Attn: Sam Halim, Manager
Telephone: (561) 702-6712
With a copy to:
David Kahan, P.A.
3125 W. Commercial Blvd., Suite 100
Ft. Lauderdale, FL 33309
Attention: David Kahan, Esq.
Telephone: (954) 548-3930
Facsimile: (954) 548-3910
Each party shall provide five days' prior written notice to the other
party of any change in address or facsimile number. Written
confirmation of receipt (A) given by the recipient of such notice,
consent, facsimile, waiver or other communication, or (B) provided by
a nationally recognized overnight delivery service shall be rebuttable
evidence of personal service, receipt by facsimile or receipt from a
nationally recognized overnight delivery service in accordance with
clause (i), (ii) or (iii) above, respectively.
Section 6.02 Governing Law. This Debenture shall be deemed to
be made under and shall be construed in accordance with the laws of
the State of Florida without giving effect to the principals of
conflict of laws thereof. Each of the parties consents to the
jurisdiction of the U.S. District Court sitting in the Southern
District of the State of Florida or the state courts of the State of
Florida sitting in Palm Beach County, Florida in connection with any
dispute arising under this Debenture and hereby waives, to the maximum
extent permitted by law, any objection, including any objection based
on forum non conveniens to the bringing of any such proceeding in such
jurisdictions.
Section 6.03 Compliance with Securities Laws on Transfer.
This Debenture and the shares of Common Stock underlying this
Debenture (collectively, the "Securities") may not be transferred or
assigned in whole or in part without compliance with applicable
federal and state securities laws by the transferor and the transferee
(including, without limitation, the delivery of investment
representation letters and legal opinions reasonably satisfactory to
the Company).
Section 6.04 Severability. The invalidity of any of the
provisions of this Debenture shall not invalidate or otherwise affect
any of the other provisions of this Debenture, which shall remain in
full force and effect.
Section 6.05 Entire Agreement and Amendments. This Debenture,
the SPA and the "Transaction Documents" (as defined in the SPA)
represents the entire agreement between the parties hereto with
respect to the subject matter hereof and thereof, and there are no
representations, warranties or commitments, except as set forth herein
and therein. This Debenture may be amended only by an instrument in
writing executed by the parties hereto.
Section 6.06 Counterparts. This Debenture may be executed in
multiple counterparts, each of which shall be an original, but all of
which shall be deemed to constitute on instrument.
Section 6.07 Lost or Mutilated Debenture. If this Debenture
shall be mutilated, lost, stolen or destroyed, the Company shall
execute and deliver, in exchange and substitution for and upon
cancellation of a mutilated Debenture, or in lieu of or in
substitution for a lost, stolen or destroyed Debenture, a new
Debenture for the principal amount of this Debenture so mutilated,
lost, stolen or destroyed, but only upon receipt of evidence of such
loss, theft or destruction of such Debenture, and of the ownership
hereof, reasonably satisfactory to the Company.
IN WITNESS WHEREOF, with the intent to be legally bound hereby,
the Company as executed this Debenture as of the date first written
above.
MY SCREEN MOBILE, INC.
By: /s/ Maurizio Angelone
Name: Maurizio Angelone
Title: CEO
EXHIBIT "A"
NOTICE OF CONVERSION
(To be executed by the Holder in order to Convert the Debenture)
TO:
The undersigned hereby elects to convert US$
of the principal amount of the above Debenture into shares of
Common Stock of My Screen Mobile, Inc., according to the conditions
stated therein, as of the Conversion Date written below.
Conversion Date:
Applicable Conversion Price:
Signature:
Name:
Address:
Amount to be converted: US$
Amount of Debenture unconverted: US$
Conversion Price per share: US$
Number of shares of
Common Stock to be
issued:
Please issue the shares
of Common Stock in the
following name and to
the following address:
Issue to:
Authorized Signature:
Name:
Title:
Phone Number:
Broker DTC Participant Code:
Account Number:
