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INVESTOR REGISTRATION RIGHTS AGREEMENT
THIS INVESTOR REGISTRATION RIGHTS AGREEMENT (this "Agreement"),
dated as of December 16, 2009, by and among My Screen Mobile, Inc, a
Delaware corporation (the "Company"), Global Financial Enterprises,
LLC, a Florida limited liability company ("GFE") and the other
investors party to this Agreement (GFE and such other investors
sometimes hereinafter individually referred to as an "Investor" and
collectively referred to as the "Investors").
WHEREAS:
A. In connection with the Securities Purchase Agreement by and
among the Company and GFE of even date herewith (the "Securities
Purchase Agreement"), the Company has agreed, upon the terms and
subject to the conditions of the Securities Purchase Agreement, to
issue and sell to GFE an unsecured convertible debenture (the
"Debenture") which shall be convertible into shares of the Company's
common stock, par value US$.001 per share (the "Common Stock") and
warrants to purchase up to 4,761,905 shares of Common Stock (the "GFE
Warrant"), pursuant to the terms of the Securities Purchase Agreement
for an aggregate purchase price of up to Five Million U.S.
Dollars ($5,000,000). Capitalized terms not defined herein shall have
the meaning ascribed to them in the Securities Purchase Agreement.
B. In connection with the Securities Purchase Agreement, GFE
and other designees of GFE which are Investors hereunder are also
receiving warrants to purchase up to 175,000 shares of Common Stock
(the "Compensation Warrant")(the GFE Warrant and the Compensation
Warrant hereinafter collectively referred to as the "Warrants") and up
to 1,000,000 shares of Common Stock (the "Compensation Stock").
C. To induce GFE to execute and deliver the Securities
Purchase Agreement, the Company has agreed to provide certain
registration rights under the Securities Act of 1933, as amended, and
the rules and regulations there under, or any similar successor
statute (collectively, the "1933 Act"), and applicable state
securities laws.
NOW, THEREFORE, in consideration of the premises and the mutual
covenants contained herein and other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the
Company and the Investors hereby agree as follows:
1. DEFINITIONS.
As used in this Agreement, the following terms shall have the
following meanings:
(a) "Person" means a corporation, a limited liability
company, an association, a partnership, an organization, a business,
an individual, a governmental or political subdivision thereof or a
governmental agency.
(b) "Register," "registered," and "registration" refer to
a registration effected by preparing and filing one or more
Registration Statements (as defined below) in compliance with the 1933
Act and pursuant to Rule 415 under the 1933 Act or any successor rule
providing for offering securities on a continuous or delayed basis
("Rule 415"), and the declaration or ordering of effectiveness of such
Registration Statement(s) by the United States Securities and Exchange
SEC (the "SEC").
(c) "Registrable Securities" means: (i) the shares of
Common Stock issuable to GFE upon conversion of the Debenture pursuant
to the Securities Purchase Agreement; (ii) the shares of Common Stock
issuable to any Investor upon exercise of any of the Warrants issuable
pursuant to the Securities Purchase Agreement; (iii) the Compensation
Stock; (iv) the Penalty Shares (as hereinafter defined); and (v) any
shares of capital stock of the Company issued or issuable with respect
to any of the foregoing in (i) - (iv) of this Section 1(c) as a result
of any stock split, stock dividend, recapitalization, exchange,
merger, reorganization or similar event or otherwise. As to any
particular Registrable Securities, such securities will cease to be
Registrable Securities when (y) they have been effectively registered
under the 1933 Act and disposed of in accordance with the registration
statement covering them, or (z) they are or may be freely traded
without registration or without restriction (including any volume
limitations) pursuant to Rule 144.
(d) "Registration Statement" means a registration
statement under the 1933 Act which covers the Registrable Securities.
(e) "Registration Period" means the earlier of the date on
which: (a) all Investors have sold all of the Registrable Securities
and (b) Investors may freely trade such Registrable Securities without
registration or without restriction (including any volume
limitations).
2. REGISTRATION.
(a) Subject to the terms and conditions of this Agreement,
the Company shall prepare and file, no later than one hundred fifty
(150) days from the date of the First Closing, as defined in the
Securities Purchase Agreement (the "Scheduled Filing Deadline"), with
the SEC a registration statement on Form S-1 under the 1933 Act (the
"Initial Registration Statement") for the registration for the resale
by the Investors of all the Registrable Securities held by such
Investors, including, without limitation, the number of shares of
Common Stock which are anticipated to be issued upon conversion of the
Debenture issued pursuant to the Securities Purchase Agreement, the
number of shares of Common Stock which are anticipated to be issued
upon exercise of the Warrants, the Compensation Stock and the Penalty
Shares, if any (subject to Rule 415 restrictions). The Company shall
cause the Registration Statement to remain effective until the end of
the Registration Period. Prior to the filing of the Registration
Statement with the SEC, the Company shall furnish a copy of the
Initial Registration Statement to the Investors and to David Kahan,
P.A. for their review and comment. The Investors and David Kahan, P.A.
shall furnish comments on the Initial Registration Statement to the
Company within five (5) business days of receipt thereof from the
Company.
(b) Effectiveness of the Initial Registration Statement.
The Company shall use its commercially reasonable efforts (i) to have
the Initial Registration Statement declared effective by the SEC no
later than thirty (30) days after the Scheduled Filing Deadline (the
"Scheduled Effective Deadline") and (ii) to insure that the Initial
Registration Statement and any subsequent Registration Statement
remains in effect as set forth in Paragraph 2(a) of this Agreement.
(c) Failure to File or Obtain Effectiveness of the
Registration Statement. Subject to the provisions of this Paragraph
and this Agreement, in the event the Registration Statement is not
filed with the SEC by the Scheduled Filing Deadline or declared
effective by the SEC on or before the Scheduled Effective Deadline, or
if after the Registration Statement has been declared effective by the
SEC, sales cannot be made pursuant to the Registration Statement
(whether because of a failure to keep the Registration Statement
effective, failure to disclose such information as is necessary for
sales to be made pursuant to the Registration Statement, failure to
register sufficient shares of Common Stock or otherwise), unless such
is due to action or inaction of any of the Investors, then such event
shall be a default by the Company under this Agreement (without any
further notice or cure period), and in addition to any other remedies
the Investors may have, at law or in equity, as partial relief for the
damages to any holder of Registrable Securities by reason of any such
delay in or reduction of its ability to sell the underlying shares of
Common Stock, the Company shall pay and issue to the Investors (pro
rata based on the relative amount of Registrable Shares held by each
of the Investors), as liquidated damages, an additional five hundred
thousand (500,000) shares of Common Stock for each thirty (30) days
the Registration Statement is not filed by the Scheduled Filing Date,
or for each thirty (30) days the Registration Statement is not made
effective past the Scheduled Effective Deadline, or for each thirty
(30) days during which sales cannot be made pursuant to the
Registration Statement, as applicable ("Penalty Shares"). The parties
hereto agree that in no event shall Investors receive more than two
million (2,000,000) Penalty Shares. The parties agree that no Penalty
Shares shall be issued if the failure to meet the Scheduled Filing
Date or the Scheduled Effective Deadline is caused by factors wholly
outside of the Company's control, which shall include, but not be
limited to, delays caused by a review of the Registration Statement by
the SEC.
(d) Liquidated Damages. The Company and the Investors
hereto acknowledge and agree that the sums payable under subsection
2(c) above shall constitute liquidated damages and not penalties and
are in addition to all other rights and remedies of the Investors,
including the right to call a default. The parties further acknowledge
that (i) the amount of loss or damages likely to be incurred is
incapable or is difficult to precisely estimate, (ii) the amounts
specified in such subsections bear a reasonable relationship to, and
are not plainly or grossly disproportionate to, the probable loss
likely to be incurred in connection with any failure by the Company to
obtain or maintain the effectiveness of a Registration Statement,
(iii) one of the reasons for the Company and the Investors reaching an
agreement as to such amounts was the uncertainty and cost of
litigation regarding the question of actual damages, and (iv) the
Company and the Investors are sophisticated business parties and have
been represented by sophisticated and able legal counsel and
negotiated this Agreement at arm's length.
3. RELATED OBLIGATIONS.
(a) The Company shall keep the Registration Statement
effective pursuant to Rule 415 at all times until the end of the
Registration Period.
(b) The Registration Statement (including any amendments
or supplements thereto and prospectuses contained therein) shall not
contain any untrue statement of a material fact or omit to state a
material fact required to be stated therein, or necessary to make the
statements therein, in light of the circumstances in which they were
made, not misleading.
(c) The Company shall prepare and file with the SEC such
amendments (including post-effective amendments) and supplements to a
Registration Statement and the prospectus used in connection with such
Registration Statement, which prospectus is to be filed pursuant to
Rule 424 promulgated under the 1933 Act, as may be necessary to keep
such Registration Statement effective at all times during the
Registration Period, and, during such period, comply with the
provisions of the 1933 Act with respect to the disposition of all
Registrable Securities of the Company covered by such Registration
Statement until such time as all of such Registrable Securities shall
have been disposed of in accordance with the intended methods of
disposition by the seller or sellers thereof as set forth in such
Registration Statement or such Registrable Securities may otherwise be
disposed of without registration and without restriction. In the case
of amendments and supplements to a Registration Statement which are
required to be filed pursuant to this Agreement by reason of the
Company's filing a report on Form 10-K, Form 10-Q or Form 8-K or any
analogous report under the Securities Exchange Act of 1934, as amended
(the "1934 Act"), the Company shall incorporate such report by
reference into the Registration Statement, if applicable, or shall
file such amendments or supplements with the SEC on the same day on
which the 1934 Act report is filed which created the requirement for
the Company to amend or supplement the Registration Statement.
(d) The Company shall furnish to the Investor, without
charge, (i) at least one (1) copy of such Registration Statement as
declared effective by the SEC and any amendment(s) thereto, including
financial statements and schedules, all documents incorporated therein
by reference, all exhibits and each preliminary prospectus, (ii) ten
(10) copies of the final prospectus included in such Registration
Statement and all amendments and supplements thereto (or such other
number of copies as the Investor may reasonably request in writing)
and (iii) such other documents as the Investor may reasonably request
in writing from time to time in order to facilitate the disposition of
the Registrable Securities owned by the Investor.
(e) The Company shall use its commercially reasonable
efforts to (i) register and qualify the Registrable Securities covered
by a Registration Statement under such other securities or "blue sky"
laws of such jurisdictions in the United States as the Investors
reasonably request, (ii) prepare and file in those jurisdictions, such
amendments (including post-effective amendments) and supplements to
such registrations and qualifications as may be necessary to maintain
the effectiveness thereof during the Registration Period, (iii) take
such other actions as may be necessary to maintain such registrations
and qualifications in effect at all times during the Registration
Period, and (iv) take all other actions reasonably necessary or
advisable to qualify the Registrable Securities for sale in such
jurisdictions; provided, however, that the Company shall not be
required in connection therewith or as a condition thereto to (w) make
any change to its certificate of incorporation or by-laws, (x) qualify
to do business in any jurisdiction where it would not otherwise be
required to qualify but for this Section 3(e), (y) subject itself to
general taxation in any such jurisdiction, or (z) file a general
consent to service of process in any such jurisdiction. The Company
shall promptly notify each of the Investors who hold Registrable
Securities of the receipt by the Company of any notification with
respect to the suspension of the registration or qualification of any
of the Registrable Securities for sale under the securities or "blue
sky" laws of any jurisdiction in the United States or its receipt of
actual notice of the initiation or threat of any proceeding for such
purpose.
(f) As promptly as practicable after becoming aware of
such event or development, the Company shall notify the Investors in
writing of the happening of any event as a result of which the
prospectus included in a Registration Statement, as then in effect,
includes an untrue statement of a material fact or omission to state a
material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they
were made, not misleading (provided that in no event shall such notice
contain any material, nonpublic information), and promptly prepare a
supplement or amendment to such Registration Statement to correct such
untrue statement or omission, and deliver ten (10) copies of such
supplement or amendment to the Investors. The Company shall also
promptly notify the Investors in writing (i) when a prospectus or any
prospectus supplement or post-effective amendment has been filed, and
when a Registration Statement or any post-effective amendment has
become effective (notification of such effectiveness shall be
delivered to the Investors by facsimile on the same day of such
effectiveness), (ii) of any request by the SEC for amendments or
supplements to a Registration Statement or related prospectus or
related information, and (iii) of the Company's reasonable
determination that a post-effective amendment to a Registration
Statement would be appropriate.
(g) The Company shall use its commercially reasonable
efforts to prevent the issuance of any stop order or other suspension
of effectiveness of a Registration Statement, or the suspension of the
qualification of any of the Registrable Securities for sale in any
jurisdiction within the United States of America and, if such an order
or suspension is issued, to obtain the withdrawal of such order or
suspension in a commercially reasonable timeframe and to notify the
Investors who hold Registrable Securities being sold of the issuance
of such order and the resolution thereof or its receipt of actual
notice of the initiation or threat of any proceeding for such purpose.
(h) The Company shall hold in confidence and not make any
disclosure of information concerning any of the Investors provided to
the Company unless (i) disclosure of such information is necessary to
comply with federal or state securities laws, (ii) the disclosure of
such information is necessary to avoid or correct a misstatement or
omission in any Registration Statement, (iii) the release of such
information is ordered pursuant to a subpoena or other final, non-
appealable order from a court or governmental body of competent
jurisdiction, or (iv) such information has been made generally
available to the public other than by disclosure in violation of this
Agreement or any other agreement. The Company agrees that it shall,
upon learning that disclosure of such information concerning any of
the Investors is sought in or by a court or governmental body of
competent jurisdiction or through other means, give prompt written
notice to the Investor and allow the Investor, at the Investor's
expense, to undertake appropriate action to prevent disclosure of, or
to obtain a protective order for, such information.
(i) Upon written request, and no more frequently than one
(1) time per six (6) months, the Company shall make available for
inspection by (i) any Investor and (ii) one (1) firm of accountants or
other agents retained by the Investors (collectively, the
"Inspectors") all pertinent financial and other records, and pertinent
corporate documents and properties of the Company (collectively, the
"Records"), as shall be reasonably deemed necessary by each Inspector,
and cause the Company's officers, directors and employees to supply
all information which any Inspector may reasonably request in writing;
provided, however, that each Inspector shall agree, and each Investor
hereby agrees, to hold in strict confidence and shall not make any
disclosure (except to an Investor) or use any Record or other
information which the Company determines in good faith to be
confidential, and of which determination the Inspectors are so
notified, unless (a) the disclosure of such Records is necessary to
avoid or correct a misstatement or omission in any Registration
Statement or is otherwise required under the 1933 Act, (b) the release
of such Records is ordered pursuant to a final, non-appealable
subpoena or order from a court or government body of competent
jurisdiction, or (c) the information in such Records has been made
generally available to the public other than by disclosure in
violation of this or any other agreement. Each Investor agrees that it
shall, upon learning that disclosure of such Records is sought in or
by a court or governmental body of competent jurisdiction or through
other means, give prompt notice to the Company and allow the Company,
at its expense, to undertake appropriate action to prevent disclosure
of, or to obtain a protective order for, the Records deemed
confidential. The Investors acknowledge and agree that they are
jointly prohibited from making more than one (1) request hereunder in
any six (6) month period and that a request by any one Investor will
preclude all other Investors (as well as such requesting Investor)
from making an additional request hereunder for a period of a minimum
of six (6) months from the date on which the Company provides the
information required hereunder.
(j) The Company shall use its commercially reasonable
efforts to cause all the Registrable Securities covered by a
Registration Statement (i) to be listed on each securities exchange on
which securities of the same class or series issued by the Company are
then listed, if any, if the listing of such Registrable Securities is
then permitted under the rules of such exchange, or (ii) the inclusion
for quotation on the National Association of Securities Dealers, Inc.
OTC Bulletin Board for such Registrable Securities. The Company shall
pay all fees and expenses in connection with satisfying its obligation
under this Section.
(k) The Company shall cooperate with the Investors and, to
the extent applicable, to facilitate the timely preparation and
delivery of certificates representing the Registrable Securities to be
offered pursuant to a Registration Statement and enable such
certificates to be in such denominations or amounts, as the case may
be, as each of the Investors may reasonably request in writing and
registered in such names as teach of the Investors may request.
(l) The Company shall use its best efforts to cause the
Registrable Securities covered by the applicable Registration
Statement to be registered with or approved by such other governmental
agencies or authorities as may be necessary to consummate the
disposition of such Registrable Securities.
(m) The Company shall use its best efforts to comply with
all applicable rules and regulations of the SEC in connection with any
registration hereunder.
(n) Within three (3) business days after a Registration
Statement which covers Registrable Securities is declared effective by
the SEC, the Company shall deliver, and shall cause legal counsel for
the Company to deliver, to the transfer agent for such Registrable
Securities (with a copy to each of the Investors whose Registrable
Securities are included in such Registration Statement) confirmation
that such Registration Statement has been declared effective by the
SEC in the form attached hereto as Exhibit A.
(o) The Company shall take all other reasonable actions
necessary to expedite and facilitate the lawful disposition by the
Investors of Registrable Securities pursuant to a Registration
Statement.
4. OBLIGATIONS OF THE INVESTOR.
Each Investor agrees that, upon receipt of any notice from the
Company of the happening of any event of the kind described in Section
3(g) or the first sentence of 3(f), each Investor will immediately
discontinue disposition of Registrable Securities pursuant to any
Registration Statement(s) covering such Registrable Securities until
Investor's receipt of the copies of the supplemented or amended
prospectus contemplated by Section 3(f) or receipt of notice that no
supplement or amendment is required.
5. EXPENSES OF REGISTRATION.
All expenses incurred in connection with registrations, filings
or qualifications pursuant to Sections 2 and 3, including, without
limitation, all registration, listing and qualifications fees,
printers, legal and accounting fees shall be paid by the Company.
6. INDEMNIFICATION.
With respect to Registrable Securities which are included in a
Registration Statement under this Agreement:
(a) To the fullest extent permitted by law, the Company
will, and hereby does, indemnify, hold harmless and defend each of the
Investors, the directors, officers, partners, employees, agents,
representatives of, and each Person, if any, who controls each of the
Investors within the meaning of the 1933 Act or the 1934 Act (each, an
"Indemnified Person"), against any losses, claims, damages,
liabilities, judgments, fines, penalties, charges, costs, reasonable
attorneys' fees, amounts paid in settlement or expenses, joint or
several (collectively, "Claims") incurred or suffered by an
Indemnified Person, or any one of them, in investigating, settling,
preparing or defending any action or otherwise in connection with any
claim, suit, inquiry, proceeding, investigation or appeal taken from
the foregoing by or before any court or governmental, administrative
or other regulatory agency, body or the SEC, whether pending or
threatened, whether or not an Indemnified Person is or may be a party
thereto (collectively, the "Indemnified Damages"), to which any of
them may become subject insofar as such Claims (or actions or
proceedings, whether commenced or threatened, in respect thereof)
arise out of or are based upon: (i) any untrue statement or alleged
untrue statement of a material fact in a Registration Statement or any
post-effective amendment thereto or in any filing made in connection
with the qualification of the offering under the securities or other
"blue sky" laws of any jurisdiction in which Registrable Securities
are offered ("Blue Sky Filing"), or the omission or alleged omission
to state a material fact required to be stated therein or necessary to
make the statements therein not misleading; (ii) any untrue statement
or alleged untrue statement of a material fact contained in any final
prospectus (as amended or supplemented, if the Company files any
amendment thereof or supplement thereto with the SEC) or the omission
or alleged omission to state therein any material fact necessary to
make the statements made therein, in light of the circumstances under
which the statements therein were made, not misleading; or (iii) any
violation or alleged violation by the Company of the 1933 Act, the
1934 Act, any other law, including, without limitation, any state
securities law, or any rule or regulation thereunder relating to the
offer or sale of the Registrable Securities pursuant to a Registration
Statement (the matters in the foregoing clauses (i) through (iii)
being, collectively, "Violations"). The Company shall reimburse each
Investor and each such controlling person promptly as such expenses
are incurred and are due and payable, for any legal fees or
disbursements or other reasonable expenses incurred by them in
connection with or otherwise related to any such Claim.
Notwithstanding anything to the contrary contained herein, the
indemnification agreement contained in this Section 6(a): (x) shall
not apply to a Claim against an Indemnified Person arising out of or
based upon a Violation which occurs in reliance upon and in conformity
with information furnished in writing to the Company by such
Indemnified Person expressly for use in connection with the
preparation of the Registration Statement or any such amendment
thereof or supplement thereto; (y) shall not be available to the
extent such Claim is based on a failure of the Investor to deliver or
to cause to be delivered the prospectus made available by the Company,
if such prospectus was timely made available by the Company pursuant
to Section 3(c); and (z) shall not apply to amounts paid in settlement
of any Claim if such settlement is effected without the prior written
consent of the Company, which consent shall not be unreasonably
withheld, conditioned or delayed. Such indemnity shall remain in full
force and effect regardless of any investigation made by or on behalf
of the Indemnified Person and shall survive the transfer of the
Registrable Securities by the Investor.
(b) In connection with a Registration Statement, each
Investor, severally and not jointly, agrees to indemnify, hold
harmless and defend, to the same extent and in the same manner as is
set forth in Section 6(a), the Company, each of its directors, each of
its officers, employees, representatives, or agents and each Person,
if any, who controls the Company within the meaning of the 1933 Act or
the 1934 Act (each an "Indemnified Party"), against any Claim or
Indemnified Damages to which any of them may become subject, under the
1933 Act, the 1934 Act or otherwise, insofar as such Claim or
Indemnified Damages arise out of or is based upon any Violation, in
each case to the extent, and only to the extent, that such Violation
occurs in reliance upon and in conformity with written information
furnished to the Company by such Investor expressly for use in such
Registration Statement; and, subject to Section 6(d), such Investor
will reimburse any legal or other expenses reasonably incurred by the
Company in connection with investigating or defending any such Claim;
provided, however, that the indemnity agreement contained in this
Section 6(b) and the agreement with respect to contribution contained
in Section 7 shall not apply to amounts paid in settlement of any
Claim if such settlement is effected without the prior written consent
of such Investor, which consent shall not be unreasonably withheld;
provided, further, however, that each Investor shall be liable under
this Section 6(b) for only that amount of a Claim or Indemnified
Damages relating to a Violation caused by such Investor and not any
other Investor, and only that amount of a Claim or Indemnified Damages
as does not exceed the net proceeds to such Investor as a result of
the sale of Registrable Securities pursuant to such Registration
Statement. Such indemnity shall remain in full force and effect
regardless of any investigation made by or on behalf of such
Indemnified Party and shall survive the transfer of the Registrable
Securities by the Investor. Notwithstanding anything to the contrary
contained herein, the indemnification agreement contained in this
Section 6(b) with respect to any prospectus shall not inure to the
benefit of any Indemnified Party if the untrue statement or omission
of material fact contained in the prospectus was corrected and such
new prospectus was delivered to the Investor prior to the Investor's
use of the prospectus to which the Claim relates.
(c) Promptly after receipt by an Indemnified Person or
Indemnified Party under this Section 6 of notice of the commencement
of any action or proceeding (including any governmental action or
proceeding) involving a Claim, such Indemnified Person or Indemnified
Party shall, if a Claim in respect thereof is to be made against any
indemnifying party under this Section 6, deliver to the indemnifying
party a written notice of the commencement thereof, and the
indemnifying party shall have the right to participate in, and, to the
extent the indemnifying party so desires, jointly with any other
indemnifying party similarly noticed, to assume control of the defense
thereof with counsel mutually satisfactory to the indemnifying party
and the Indemnified Person or the Indemnified Party, as the case may
be; provided, however, that an Indemnified Person or Indemnified Party
shall have the right to retain its own counsel with the fees and
expenses of not more than one (1) counsel for such Indemnified Person
or Indemnified Party to be paid by the indemnifying party, if, in the
reasonable opinion of counsel retained by the indemnifying party, the
representation by such counsel of the Indemnified Person or
Indemnified Party and the indemnifying party would be inappropriate
due to actual or potential differing interests between such
Indemnified Person or Indemnified Party and any other party
represented by such counsel in such proceeding. The Indemnified Party
or Indemnified Person shall cooperate fully with the indemnifying
party in connection with any negotiation or defense of any such action
or claim by the indemnifying party and shall furnish to the
indemnifying party all information reasonably available to the
Indemnified Party or Indemnified Person which relates to such action
or claim. The indemnifying party shall keep the Indemnified Party or
Indemnified Person fully apprised at all times as to the status of the
defense or any settlement negotiations with respect thereto. No
indemnifying party shall be liable for any settlement of any action,
claim or proceeding effected without its prior written consent;
provided, however, that the indemnifying party shall not unreasonably
withhold, delay or condition its consent. No indemnifying party
shall, without the prior written consent of the Indemnified Party or
Indemnified Person, consent to entry of any judgment or enter into any
settlement or other compromise which does not include as an
unconditional term thereof the giving by the claimant or plaintiff to
such Indemnified Party or Indemnified Person of a release from all
liability in respect to such claim or litigation. Following
indemnification as provided for hereunder, the indemnifying party
shall be subrogated to all rights of the Indemnified Party or
Indemnified Person with respect to all third parties, firms or
corporations relating to the matter for which indemnification has been
made. The failure to deliver written notice to the indemnifying party
within a reasonable time of the commencement of any such action shall
not relieve such indemnifying party of any liability to the
Indemnified Person or Indemnified Party under this Section 6, except
to the extent that the indemnifying party is prejudiced in its ability
to defend such action.
(d) The indemnification required by this Section 6 shall
be made by periodic payments of the amount thereof during the course
of the investigation or defense, as and when bills are received or
Indemnified Damages are incurred.
(e) The indemnity agreements contained herein shall be in
addition to (i) any cause of action or similar right of the
Indemnified Party or Indemnified Person against the indemnifying party
or others, and (ii) any liabilities the indemnifying party may be
subject to pursuant to the law.
7. CONTRIBUTION.
To the extent any indemnification by an indemnifying party is
prohibited or limited by law, the indemnifying party agrees to make
the maximum contribution with respect to any amounts for which it
would otherwise be liable under Section 6 to the fullest extent
permitted by law; provided, however, that: (i) no seller of
Registrable Securities guilty of fraudulent misrepresentation (within
the meaning of Section 11(f) of the 1933 Act) shall be entitled to
contribution from any seller of Registrable Securities who was not
guilty of fraudulent misrepresentation; and (ii) contribution by any
Investor shall be limited in amount to the net amount of proceeds
received by such Investor from the sale of such Registrable Securities
and contribution by the Company shall be limited in amount to the net
amount of proceeds received by the Company from the sale of the
Debenture pursuant to the Securities Purchase Agreement.
8. REPORTS UNDER THE 1934 ACT.
With a view to making available to the Investors the benefits of
Rule 144 promulgated under the 1933 Act or any similar rule or
regulation of the SEC that may at any time permit the Investors to
sell securities of the Company to the public without registration
("Rule 144") the Company agrees to:
(a) make and keep public information available, as those
terms are understood and defined in Rule 144;
(b) file with the SEC in a timely manner all reports and
other documents required of the Company under the 1933 Act and the
1934 Act so long as the Company remains subject to such requirements
(it being understood that nothing herein shall limit the Company's
obligations under the Securities Purchase Agreement) and the filing of
such reports and other documents as are required by the applicable
provisions of Rule 144; and
(c) furnish to the Investors, so long as any of the
Investors own Registrable Securities, promptly upon written request,
(i) a written statement by the Company that it has complied with the
reporting requirements of Rule 144, the 1933 Act and the 1934 Act,
(ii) a copy of the most recent annual or quarterly report of the
Company and such other reports and documents so filed by the Company,
and (iii) such other information as may be reasonably requested to
permit any of the Investors to sell such securities pursuant to Rule
144 without registration.
9. AMENDMENT OF REGISTRATION RIGHTS.
Provisions of this Agreement may be amended and the observance
thereof may be waived (either generally or in a particular instance
and either retroactively or prospectively), only with the written
consent of the Company and each Investor. Any amendment or waiver
effected in accordance with this Section 9 shall be binding upon each
Investor and the Company.
10. MISCELLANEOUS.
(a) A Person is deemed to be a holder of Registrable
Securities whenever such Person owns or is deemed to own of record
such Registrable Securities. If the Company receives conflicting
instructions, notices or elections from two (2) or more Persons with
respect to the same Registrable Securities, the Company shall act upon
the basis of instructions, notice or election received from the
registered owner of such Registrable Securities.
(b) Any notices, consents, waivers or other communications
required or permitted to be given under the terms of this Agreement
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 transmission is mechanically or
electronically generated and kept on file by the sending party); or
(iii) one (1) 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:
Maurizio Angelone, CEO
My Screen Mobile, Inc.
70 Yorkville Ave., Suite 300
Toronto, Ontario, M5R 1B9
Telephone:
Facsimile:
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 Investor:
As to each Investor, to the address set forth
in the signature page for each such Investor
With Copy to:
David Kahan, P.A.
3125 W. Commercial Blvd., Suite 100
Ft. Lauderdale, FL 33309
Attn: 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.
(c) Failure of any party to exercise any right or remedy
under this Agreement or otherwise, or delay by a party in exercising
such right or remedy, shall not operate as a waiver thereof.
(d) The laws of the State of Florida shall govern all
issues concerning the relative rights of the Company and the Investors
as its stockholders. All other questions concerning the construction,
validity, enforcement and interpretation of this Agreement shall be
governed by the internal laws of the State of Florida without giving
effect to any choice of law or conflict of law provision or rule
(whether of the State of Florida or any other jurisdiction) that would
cause the application of the laws of any jurisdiction other than the
State of Florida Each party hereby irrevocably submits to the non-
exclusive jurisdiction of the State Courts of the State of Florida
sitting in Broward County, Florida and federal courts for the Southern
District of Florida for the adjudication of any dispute hereunder or
in connection herewith or with any transaction contemplated hereby or
discussed herein, 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 any such court, that such
suit, action or proceeding is brought in an inconvenient forum or that
the venue of such suit, action or proceeding is improper. 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 to such party at the address for such notices to it
under this Agreement 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 manner permitted by law. If any provision of
this Agreement shall be invalid or unenforceable in any jurisdiction,
such invalidity or unenforceability shall not affect the validity or
enforceability of the remainder of this Agreement in that jurisdiction
or the validity or enforceability of any provision of this Agreement
in any other jurisdiction. EACH PARTY HEREBY IRREVOCABLY WAIVES ANY
RIGHT IT MAY HAVE, AND AGREES NOT TO REQUEST, A JURY TRIAL FOR THE
ADJUDICATION OF ANY DISPUTE HEREUNDER OR IN CONNECTION HEREWITH OR
ARISING OUT OF THIS AGREEMENT OR ANY TRANSACTION CONTEMPLATED HEREBY.
(e) This Agreement, the Securities Purchase Agreement and
related documents including the Debenture and the Warrants dated the
date hereof by and among the Company and the Investors, as applicable,
constitute the entire agreement among the parties hereto with respect
to the subject matter hereof and thereof. There are no restrictions,
promises, warranties or undertakings, other than those set forth or
referred to herein and therein. This Agreement, the Securities
Purchase Agreement and related documents including the Debenture and
the Warrants supersede all prior agreements and understandings among
the parties hereto with respect to the subject matter hereof and
thereof.
(f) This Agreement shall inure to the benefit of and be
binding upon the permitted successors and assigns of each of the
parties hereto.
(g) The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning
hereof.
(h) This Agreement may be executed in identical
counterparts, each of which shall be deemed an original but all of
which shall constitute one and the same agreement. This Agreement,
once executed by a party, may be delivered to the other party hereto
by facsimile transmission of a copy of this Agreement bearing the
signature of the party so delivering this Agreement.
(i) Each party shall do and perform, or cause to be done
and performed, all such further acts and things, and shall execute and
deliver all such other agreements, certificates, instruments and
documents, as the other party may reasonably request in order to carry
out the intent and accomplish the purposes of this Agreement and the
consummation of the transactions contemplated hereby.
(j) The language used in this Agreement will be deemed to
be the language chosen by the parties to express their mutual intent
and no rules of strict construction will be applied against any party.
(k) This Agreement is intended for the benefit of the
parties hereto and their respective permitted successors and assigns,
and is not for the benefit of, nor may any provision hereof be
enforced by, any other Person.
IN WITNESS WHEREOF, the parties have caused this Investor
Registration Rights Agreement to be duly executed as of day and year
first above written.
COMPANY:
MY SCREEN MOBILE, INC.
By:/s/ Maurizio Angelone
Name: Maurizio Angelone
Title: CEO
GFE:
GLOBAL FINANCIAL ENTERPRISES, LLC
By: /s/ Sam Halim
Name: Sam Halim
Title: Manager
Investor Address and Contact Info.:
Global Financial Enterprises, LLC
7080 IsleGrove Place
Boca Raton, FL 33433
Attn: Sam Halim, Manager
Telephone: (561) 702-6712
SIGNATURE PAGE FOR INVESTOR
By its execution below, the undersigned Investor hereby
acknowledges that it has read and understood the Investor Registration
Rights Agreement to which this Signature Page is attached and hereby
agrees to be bound by all of the terms, conditions and obligations of
the Agreement.
GLOBAL PARTNERS, LLC
/s/ Sam Halim
Name: Sam Halim
Title Manager
Date: December 16, 2009
Investor Address and Contact Info.:
Global Financial Enterprises, LLC
7080 IsleGrove Place
Boca Raton, FL 33433
Attn: Sam Halim, Manager
Telephone: (561) 702-6712
SIGNATURE PAGE FOR INVESTOR
By its execution below, the undersigned Investor hereby
acknowledges that it has read and understood the Investor Registration
Rights Agreement to which this Signature Page is attached and hereby
agrees to be bound by all of the terms, conditions and obligations of
the Agreement.
DAVID KAHAN, P.A.
/s/ David Kahan
Name: David Kahan
Title: President
Date: December 16, 2009
Investor Address and Contact Info.:
3125 W. Commercial Blvd., Suite 100
Ft. Lauderdale, FL 33309
Telephone: (954) 548-3930
Facsimile: (954) 548-3910
EXHIBIT A
FORM OF NOTICE OF EFFECTIVENESS
OF REGISTRATION STATEMENT
Attention:
Re: MY SCREEN MOBILE, INC.
Ladies and Gentlemen:
We are counsel to MY SCREEN MOBILE, INC., a Delaware corporation
(the "Company"), and have represented the Company in connection with
that certain Investor Registration Rights Agreement (the "Registration
Rights Agreement") entered into by and among the Company and the
Investors named therein (collectively, the "Investors") pursuant to
which the Company agreed, among other things, to register the
Registrable Securities (as defined in the Registration Rights
Agreement) under the Securities Act of 1933, as amended (the "1933
Act"). In connection with the Company's obligations under the
Registration Rights Agreement, on ____________ ____, the Company filed
a Registration Statement on Form ________ (File No. 333-_____________)
(the "Registration Statement") with the Securities and Exchange
SEC (the "SEC") relating to the Registrable Securities which names the
Investors as a selling stockholders thereunder.
In connection with the foregoing, we advise you that a member of
the SEC's staff has advised us by telephone that the SEC has entered
an order declaring the Registration Statement effective under the 1933
Act at [ENTER TIME OF EFFECTIVENESS] on [ENTER DATE OF EFFECTIVENESS]
and we have no knowledge that any stop order suspending its
effectiveness has been issued or that any proceedings for that purpose
are pending before, or threatened by, the SEC and the Registrable
Securities are available for resale under the 1933 Act pursuant to the
Registration Statement.
Very truly yours,
[INSERT NAME OF COMPANY COUNSEL]
By:
cc: [INVESTOR'S CONTACT INFORMATION]
