Contract
Exhibit
10.4
THIS
SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED
(THE “SECURITIES ACT”), OR THE SECURITIES LAWS OF ANY STATE, AND IS BEING
OFFERED AND SOLD PURSUANT TO AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF
THE SECURITIES ACT AND SUCH STATE LAWS. THIS SECURITY MAY NOT BE SOLD
OR TRANSFERRED EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE
SECURITIES ACT OR PURSUANT TO AN AVAILABLE EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT OR SUCH OTHER STATE LAWS.
FORM
OF PACIFICNET INC.
7%
DEBENTURE
THIS
DEBENTURE is one of a series of a duly authorized and validly issued Debentures
of PACIFICNET INC., a corporation duly organized and existing under the laws of
the State of Delaware with its principal place of business at 23/F, Tower A,
Timecourt, Xx.0 Xxxxxxxx Xxxx, Xxxxxxxx Xxxxxxxx, Xxxxxxx, Xxxxx 000000 (the
“Company”) designated as its 7% Debenture (the “Debenture”).
FOR VALUE
RECEIVED, the Company promises to pay to ___________________________, or its
registered assigns (the “Holder”), the principal sum of $________ on
the Maturity Date (as hereinafter defined) and to pay interest on the principal
sum outstanding from time to time in arrears as provided herein on the Maturity
Date at the rate of 7% per annum accruing from the date of initial
issuance. Accrual of interest shall commence on the date hereof until
payment in full of the principal sum, together with all accrued and unpaid
interest and other amounts which may become due hereunder, has been
made. Interest shall be calculated on the basis of a 365-day year and
shall accrue daily. The Company will pay the principal and interest
upon this Debenture on the Maturity Date, to the registered holder of this
Debenture and addressed to such holder at the address appearing above or to such
other address designated by such holder in writing.
“Maturity
Date” shall mean the first date on which an Event of Default occurs under any of
the Second Amended and Restated Variable Rate Secured Convertible Debentures due
July 2009 or the Amended and Restated Variable Rate Secured Convertible
Debentures due July 2009 issued by the Company, which default has not been cured
as provided thereunder.
This
Debenture is subject to the following additional provisions:
1. No
provision of this Debenture shall alter or impair the obligation of the Company,
which is absolute and unconditional, to pay the principal of, and interest on,
and any other amounts which may become due under, this Debenture at the time,
place, and rate, and in the coin or currency, herein prescribed. This
Debenture is a direct obligation of the Company.
2. No
recourse shall be had for the payment of the principal of, or the interest on,
this Debenture, or for any claim based hereon, or otherwise in respect hereof,
against any incorporator, shareholder, officer or director, as such, past,
present or future, of the Company or any successor corporation, whether by
virtue of any constitution, statute or rule of law, or by the enforcement of any
assessment or penalty or otherwise, all such liability being, by the acceptance
hereof and as part of the consideration for the issue hereof, expressly waived
and released.
3. The
Holder of the Debenture, by acceptance hereof, agrees that this Debenture is
being acquired for investment and that such Holder will not offer, sell or
otherwise dispose of this Debenture except under circumstances which will not
result in a violation of the Securities Act of 1933, as amended, or any
applicable state blue sky or foreign laws or similar laws relating to the sale
of securities.
4. All
questions concerning the construction, validity, enforcement and interpretation
of this Debenture 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 this
Debenture (whether brought against a party hereto or its respective affiliates,
directors, officers, shareholders, 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 this Debenture), 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
Debenture 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
Debenture or the transactions contemplated hereby. If either party
shall commence an action or proceeding to enforce any provisions of this
Debenture, then the prevailing party in such action or proceeding shall be
reimbursed by the other party for its attorneys fees and other costs and
expenses incurred in the investigation, preparation and prosecution of such
action or proceeding.
5. This
Debenture shall be binding upon the Company and its successors and assigns and
shall inure to the benefit of the Holder and its successors and
assigns. Notwithstanding the foregoing, the Company may not assign
this Debenture or any of its obligations hereunder without the prior written
consent of the Holder.
6. No
right or remedy herein conferred upon or reserved to the Holder is intended to
be exclusive of any other right or remedy, and every right and remedy shall, to
the extent permitted by law, be cumulative and in addition to every other right
and remedy given hereunder or now or hereafter existing at law or in equity or
otherwise. The assertion or employment of any right or remedy hereunder, or
otherwise, shall not prevent the concurrent assertion or employment of any other
appropriate right or remedy.
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7. No
failure or delay by the Holder in exercising any right, power or remedy under
this Debenture shall operate as a waiver thereof or any other right, power or
remedy under this Debenture; nor shall any single or partial exercise of any
such right, power or remedy preclude any other or further exercise thereof or
the exercise of any other right, power or remedy under this
Debenture. Any waiver must be in a writing signed by the
Holder.
8. All
payments made by the Company under this Debenture shall be made by the Company
free and clear of and without deduction for any and all present and future
taxes, levies, charges, deductions and withholdings.
9. The
Company hereby waives presentment, demand for payment, notice of dishonor or
nonpayment, protest and all other demands and notices in connection with the
delivery, acceptance, performance, default or enforcement of this
Debenture.
10. In
case any provision contained herein (or part thereof) shall for any reason be
held to be invalid, illegal or unenforceable in any respect, such invalidity,
illegality or unenforceability shall not affect any other provision (or the
remaining part of the affected provision) hereof, but this Debenture shall be
construed as if such invalid, illegal or unenforceable provision (or part
thereof) had never been contained herein, but only to the extent that such
provision is invalid, illegal or unenforceable.
11. Subject
to the terms of the Settlement and Release Agreement executed simultaneously
herewith, this Debenture sets forth the entire agreement and understanding of
the Company and the Holder and supersedes any prior oral or written agreement
between the Company and the Holder with respect to the subject matter of this
Debenture.
[Signature
page follows]
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IN WITNESS WHEREOF, the
Company has caused this instrument to be duly executed by an officer thereunto
duly authorized.
Dated: August
___, 2008
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By:
_____________________________
Xxxxxx
Xxxx
President
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