6% CONVERTIBLE DEBENTURE
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 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 LAWS.
|
No. 2
|
US$150,000
|
VYCOR
MEDICAL, INC.
SENIOR CONVERTIBLE DEBENTURE
DUE
FEBRUARY 15, 2008
FOR
VALUE
RECEIVED, Vycor
Medical, Inc. (the
"Company") promises to pay to Fountainhead
Capital Partners Limited, or
any
other registered holder(s) hereof and its or their authorized successors
and
permitted assigns (" Holder"), the aggregate principal face amount of US$150,000
on or before February 15, 2009 ("Maturity Date"), together with interest
thereon
at six percent (6%) per annum. The Holder shall have the sole option to extend
the Maturity Date for a period of six months. Accrued interest shall be paid
to
the person in whose name this Debenture is registered on the records of the
Company regarding registration and transfers of the Debenture ("Debenture
Register"); provided, however, that the Company's obligation to a transferee
of
this Debenture arises only if such transfer, sale or other disposition is
made
in accordance with the terms hereof and duly entered in the Debenture Register.
The principal amount of this Debenture is payable at the address last appearing
on the Debenture Register of the Company as designated in writing by the
Holder
hereof from time to time. The Holder's address initially provided to the
Company
is as set forth in Section 16(b) below. The Company may, at its option, elect
to
pay accrued interest under this Debenture, by issuing to the Holder shares
of
common stock in the Company with a value equal to such accrued interest.
In such
event, the value of the common stock issued in lieu of payment of accrued
interest will be mutually agreed upon by the Company and the Holder prior
to the
Company having the right to make payment in such fashion. The Company will
pay
the outstanding principal and accrued interest due upon this Debenture before
or
on the Maturity Date, less any amounts required by law to be deducted or
withheld, to the Holder of this Debenture by check if paid more than 10 days
prior to the Maturity Date or by wire transfer and addressed to such Holder
at
the last address appearing on the Debenture Register. The forwarding of such
check or wire transfer shall constitute a payment of outstanding principal
hereunder and shall satisfy and discharge the liability for principal on
this
Debenture to the extent of the sum represented by such check or wire
transfer.
This
Debenture is one of a series of two Convertible Debentures, each in the original
principal amount of $150,000, to be issued pursuant to the Convertible Debenture
Purchase Agreement dated February 15, 2008 ("Purchase Agreement"), and secured
pursuant to the terms of a Security Agreement of even date with the Purchase
Agreement ("Security Agreement").
This
Debenture is subject to the following additional provisions:
1. Issuance. The
Debenture may be exchanged for an equal aggregate principal amount of Debentures
of different authorized denominations, as requested by the Holders surrendering
the same, but not less than U.S. $50,000 each. No service charge will be
made
for such registration or transfer or exchange, except that Holder shall pay
any
tax or other governmental charges payable in connection therewith. The Company
shall be entitled to withhold from all payments any amounts required to be
withheld under the applicable laws.
2. Loss,
Theft, Destruction of Debenture.
Upon
receipt of evidence satisfactory to the Company of the loss, theft, destruction
or mutilation of this Debenture and, in the case of any such loss, theft
or
destruction, upon receipt of indemnity or security reasonably satisfactory
to
the Company, or, in the case of any such mutilation, upon surrender and
cancellation of this Debenture, the Company shall make, issue and deliver,
in
lieu of such lost, stolen, destroyed or mutilated Debenture, a new Debenture
of
like tenor and unpaid principal amount dated as of the date hereof (which
shall
accrue interest from the most recent interest payment date on which an interest
payment was made in full).
3. Transfer. This
Debenture may be transferred or exchanged only in compliance with the Securities
Act of 1933, as amended (the "Act") and applicable state securities laws.
Prior
to due presentment for transfer of this Debenture, the Company and any agent
of
the Company may treat the person in whose name this Debenture is duly registered
on the Company's Debenture Register as the Holder hereof for all other purposes,
whether or not this Debenture be overdue, and neither the Company nor any
such
agent shall be affected or bound by notice to the contrary. Any Holder of
this
Debenture, electing to exercise the right of conversion set forth in Section
4(a) hereof, in addition to the requirements set forth in Section 4(a), and
any
prospective transferee of this Debenture, are also required to give the Company
written confirmation that the Debenture is being converted ("Notice of
Conversion") in the form annexed hereto as Exhibit I. The date of receipt
(including receipt by telecopy) of such Notice of Conversion shall be the
Conversion Date.
2
4. Conversion The
Holder is entitled, at its option, to convert all or any amount of the principal
face amount of this Debenture then outstanding into shares of common stock
of
the Company at a Conversion Price of $.01230 per share, subject to adjustment
as
provided herein. If the number of resultant Conversion Shares would as a
matter
of law or pursuant to regulatory authority require the Company to seek member
approval of such issuance, the Company has, prior to the issuance hereof,
taken
the necessary steps to obtain such approval. Such conversion shall be
effectuated, by the Company delivering the Conversion
Shares to the Holder within 30 days of receipt by the Company of the Notice
of
Conversion. Once the Holder has received such Conversion Shares, the Holder
shall surrender the Debenture (or portion thereof) to be converted to the
Company, executed by the Holder of this Debenture evidencing such Xxxxxx's
intention to convert this Debenture or a specified portion hereof, and
accompanied by proper assignment hereof in blank. If the Company shall fail
to
deliver the Conversion Shares to the Holder within such 30 day period, the
Conversion Price shall be automatically reduced by twenty-five percent (25%),
and shall be reduced an additional ten percent (10%) for each additional
30 day
period (or portion thereof) thereafter. In the event of a partial conversion
of
the Debenture, the Company will immediately issue a replacement Debenture
covering the unconverted portion.
To
the
fullest extent permitted by law, the Holder shall be entitled to exercise
its
conversion privilege notwithstanding the commencement of any case under the
Bankruptcy Code. In the event the Company is a debtor under the Bankruptcy
Code,
the Company hereby waives to the fullest extent permitted any rights to relief
it may have under 11 U.S.C. § 362 in respect of the Holder's conversion
privilege. The Company hereby waives to the fullest extent permitted any
rights
to relief it may have under 11 U.S.C. § 362 in respect of the conversion of this
Debenture. The Company agrees, without cost or expense to the Holder, to
take or
consent to any and all action necessary to effectuate relief under 11 U.S.C.
§
362.
No
fractional shares or scrip representing fractional shares shall be delivered
upon conversion of this Debenture. Instead of any fractional Conversion Shares
which otherwise would be delivered upon conversion of this Debenture, the
Company shall pay a cash adjustment in respect of such fraction in an amount
equal to the same fraction multiplied by the Conversion Price on the date
of
Conversion. No cash payment of less than $1.00 shall be required to be given
unless specifically requested by the Holder.
5. Priority;
Security. The
obligation evidenced by this Debenture shall be senior to all other obligations
of the Company other than obligations specifically approved by the Holder;
provided that the obligation evidenced by this Debenture shall be of equal
priority for all purposes with that certain Bridge Loan Debenture dated June
21,
2007, in the original principal amount of $172,500 held by Fountainhead Capital
Partners Limited (the "FCP Debenture"). The obligation evidenced by this
Debenture is secured by a first priority security interest (and equal in
priority to the first priority security interest securing the FCP Debenture),
in
all of the assets of the Company other than liens specifically approved by
the
Holder. As a condition to funding this Debenture, the Holder has the right
to
require the holder of the FCP Debenture to execute an intracreditor or similar
written agreement pursuant to which such holder acknowledges that the security
interests of such holder and the Holder hereunder shall be equal, and in
the
event of a default under either the FCP Debenture or this Debenture, such
debenture holders, as secured parties, will share, pari passu, with respect
to
the proceeds from any foreclosure of collateral securing such
indebtedness.
6. Anti-dilution
Adjustments.
The
number of shares issuable upon conversion of this Debenture and the Conversion
Price shall be subject to adjustment as follows:
3
(a) In
case
the Company shall (i) pay a dividend or make a distribution on its common
stock
in additional shares or other securities, (ii) subdivide its outstanding
common
stock into a greater number of shares, (iii) combine its outstanding shares
into
a smaller number of shares or (iv) issue, by reclassification of its shares,
any
other securities of the Company (including any such reclassification in
connection with a consolidation or merger in which the Company is the continuing
entity), the number of share issuable upon conversion of this Debenture
immediately prior thereto shall be adjusted so that the Holder shall be entitled
to receive the kind and number of Conversion Shares, and other securities
of the
Company which such Holder would have owned or would have been entitled to
receive immediately after the happening of any of the events described above,
had the Debenture been converted immediately prior to the happening of such
event or any record date with respect thereto. Any adjustment made pursuant
to
this subsection 6(a) shall become effective immediately after the effective
date
of such event.
(b) In
case
the Company shall issue rights, options, warrants or convertible securities
to
holders of its shares, for no
consideration, containing
the right to subscribe for or purchase shares of common stock, the number
of
Conversion Shares thereafter issuable upon the conversion of this Debenture
shall be determined by multiplying the number of Conversion Shares theretofore
issuable upon conversion of this Debenture by a fraction, of which the numerator
shall be the number of shares outstanding immediately prior to the issuance
of
such rights, options, warrants or convertible securities plus the number
of
additional shares offered for subscription or purchase, and of which the
denominator shall be the number of shares outstanding immediately prior to
the
issuance of such rights, options, warrants or convertible securities. Such
adjustment shall be made whenever such rights, options, warrants or convertible
securities are issued, and shall become effective immediately upon issuance
of
such rights, options, warrants or convertible securities. In the event of
such
adjustment, corresponding adjustments shall be made to the Conversion
Price.
(c) In
case
the Company shall distribute to holders of its common shares evidences of
its
indebtedness or assets (excluding cash dividends or distributions out of
current
earnings made in the ordinary course of business consistent with past
practices), then in each case the number of Conversion Shares thereafter
issuable upon the conversion of this Debenture shall be determined by
multiplying the number of Conversion Shares theretofore issuable upon conversion
of this Debenture by a fraction, of which the numerator shall be the then
Market
Price (as defined below) on the date of such distribution, and of which the
denominator shall be such Market Price on such date minus the then fair value
(determined as provided in subsection 6(f) below) of the portion of the assets
or evidences of indebtedness so distributed applicable to one share. Such
adjustment shall be made whenever any such distribution is made and shall
become
effective on the date of distribution. In the event of any such adjustment,
the
number of Conversion Shares shall also be adjusted and shall be that number
determined by multiplying the number of shares issuable upon exercise before
the
adjustment by a fraction, the numerator of which shall be the Conversion
Price
in effect immediately before the adjustment and the denominator of which
shall
be the Conversion Price as so adjusted.
4
(d)
If
the Company shall at any time while this Debenture is outstanding issue shares
(including additional shares deemed to be issued upon conversion of any
convertible security, but excluding shares issued as a dividend or distribution
or upon a stock split or combination which is otherwise provided for in Section
6(a) above, or upon the issuance of options or warrants for no
consideration which
is
otherwise provided for in Section 6(b) above) either without consideration,
or
for a consideration per share less than the Conversion Price in effect on
the
date of and immediately prior to such issue, then and in such event, the
Conversion Price shall be reduced by a full ratchet anti-dilution adjustment
to
such lesser price (calculated to the nearest cent).
For
purposes of this Section 6(d), the consideration received by the Company
for the
issue of any additional shares shall be computed as follows:
(A)
Cash
and
Property. Such consideration shall:
(1) insofar
as it consists of cash, be computed at the aggregate of cash received by
the
Company, excluding amounts paid or payable for accrued interest or accrued
dividends;
(2) insofar
as it consists of property other than cash, be computed at the fair market
value
thereof at the time of such issue, as determined in good faith by the Company's
managers or governing board; and
(3) in
the
event additional shares are issued together with other securities or other
assets of the Company for consideration which covers both, be the proportion
of
such consideration so received, computed as provided in clauses (1) and (2)
above, as determined in good faith by the Company's board of
directors.
(B) Options,
Rights and Convertible Securities. The consideration per unit received
by the Company for additional shares deemed to have been issued pursuant
to
options, warrants, rights or other convertible securities (other than when
issued for no
consideration as provided for in Section 6(a) above), shall be determined
by
dividing
(1) the
total
amount, if any, received or receivable by the Company as consideration for
the
issue of such options, rights, warrants or other convertible securities,
plus
the minimum aggregate amount of additional consideration (as set forth in
the
instruments relating thereto, without regard to any provision contained therein
for a subsequent adjustment of such consideration) payable to the Company
upon
the exercise of such options, rights, warrants or the conversion or exchange
of
such convertible securities, by
(2) the
maximum number of shares (as set forth in the instruments relating thereto,
without regard to any provision contained therein for a subsequent adjustment
of
such number) issuable upon the exercise of such options, rights, warrants
or the
conversion or exchange of such convertible securities.
5
(e) Whenever
the number of Conversion Shares issuable upon the conversion of this Debenture
is adjusted as provided in this Section 6, the Conversion Price shall be
adjusted by multiplying such Conversion Price immediately prior to such
adjustment by a fraction, the numerator of which shall be the number of
Conversion Shares issuable upon the conversion of this Debenture immediately
prior to such adjustment, and the denominator of which shall be the number
of
Conversion Shares issuable immediately thereafter.
(f) For
the
purpose of this Section 6, the term "shares"
shall
mean (i) the common stock of the Company at the time of conversion, on a
fully
diluted basis. In the event that at any time, as a result of an adjustment
made
pursuant to this Section 6, a Debenture holder shall be entitled to convert
such
Debenture into any securities of the Company other than common stock, (i)
if the
Debenture holder's right to convert is on any other basis than that available
to
all holders of the Company's common stock, the Company shall obtain an opinion
of a reputable investment banking firm valuing such other securities and
(ii)
thereafter the number of such other securities so purchasable upon conversion
of
a Debenture and the Conversion Price of such securities shall be subject
to
adjustment from time to time in a manner and on terms as nearly equivalent
as
practicable to the provisions with respect to the shares contained in this
Section 6.
(g) Upon
the expiration of any rights, options, warrants or conversion privileges,
if
such shall not have been exercised, the number of Conversion Shares issuable
upon conversion of the Debenture and the Conversion Price, to the extent
the
Debenture has not then been converted, shall, upon such expiration, be
readjusted and shall thereafter be such number and such price as they would
have
been had they been originally adjusted (or had the original adjustment not
been
required, as the case may be) on the basis of (A) the fact that the only
shares
issued in respect of such rights, options, warrants or conversion privileges
were the shares, if any, actually issued or sold upon the exercise of such
rights, options, warrants or conversion privileges, and (B) the fact that
such
shares, if any, were issued or sold for the consideration actually received
by
the Company upon such exercise plus the consideration, if any, actually received
by the Company for the issuance, sale or grant of all such rights, options,
warrants or conversion privileges whether or not exercised; provided, however,
that no such readjustment shall have the effect of decreasing the numbers
of
Conversion Shares issuable upon conversion of the Debenture or increasing
the
Conversion Price by an amount in excess of the amount of the adjustment made
in
respect of the issuance, sale or grant of such rights, options, warrants
or
conversion privileges.
(h) Upon
any
adjustment of the Conversion Price and the number of Conversion
Shares issuable upon conversion of the Debenture, then and in each such case,
the
Company shall give written notice thereof, by first-class mail, postage prepaid,
addressed to
the
Holder as shown on the books of the Company, which notice shall state the
Conversion Price
resulting from such adjustment and the increase or decrease, if any, in the
number of shares
issuable at such price upon the conversion of the Debenture, setting forth
in
reasonable
detail the method of calculation and the facts upon which such calculation
is
based.
6
7. Merger,
Reorganization or Consolidation.
In
any
case in which a transaction would result in a complete liquidation of the
Company or a merger, reorganization, or consolidation of the Company with
any
other unrelated corporation or other entity in which the Company is not the
surviving corporation or the Company becomes a wholly-owned subsidiary of
another unrelated corporation or other entity (all such transactions being
referred to herein as a "Reorganization"), the surviving corporation or other
entity shall be required to assume the Debenture or to issue a substitute
Debenture in place thereof which substitute Debenture shall provide for terms
at
least as favorable to the Holder as contained in this Debenture and shall
provide the Holder the right to acquire the kind and amount of common stock
and
other securities and property which the Holder would have owned or been entitled
to receive had the Debenture been converted immediately prior to such
Reorganization.
8. No
Impairment. No
provision of this Debenture shall alter or impair the obligation of the Company,
which is absolute and unconditional, to pay the principal of this Debenture
at
the time, place, and rate, and in the form, herein prescribed.
9. Waiver
of Demand/Presentment. The
Company hereby expressly waives demand and presentment for payment, notice
of
non-payment, protest, notice of protest, notice of dishonor, notice of
acceleration or intent to accelerate, and diligence in taking any action
to
collect amounts called for hereunder and shall be directly and primarily
liable
for the payment of all sums owing and to be owing hereto.
10. Cost
and Fees. The
Company agrees to pay all costs and expenses, including reasonable attorneys'
fees, which may be incurred by the Holder in collecting any amount due under
this Debenture.
11. Events
of Default. If
one or
more of the following described "Events of Default" shall occur and continue
for
30 days, unless a different time frame is noted below:
(a) The
Company shall default in the payment of principal or interest on this Debenture,
and such failure shall continue for a period of five (5) days; or
(b) The
Company shall fail to perform or observe, in any material respect, any other
covenant, term, provision, condition, agreement or obligation of the Company
under this Debenture and such failure shall continue uncured for a period
of
thirty (30) days after notice from the Holder of such failure; or
(c) The
Company shall (1) become insolvent; (2) admit in writing its inability to
pay
its debts generally as they mature; (3) make an assignment for the benefit
of
creditors or commence proceedings for its dissolution; (4) apply for or consent
to the appointment of a trustee, liquidator or receiver for its or for a
substantial part of its property or business; (5) file a petition for bankruptcy
relief, consent to the filing of such petition or have filed against it an
involuntary petition for bankruptcy relief, all under federal or state laws
as
applicable; or
7
(d) A
trustee, liquidator or receiver shall be appointed for the Company or for
a
substantial part of its property or business without its consent and shall
not
be discharged within thirty (30) days after such appointment; or
(e) Any
governmental agency or any court of competent jurisdiction at the instance
of
any governmental agency shall assume custody or control of the whole or any
substantial portion of the properties or assets of the Company; or
(f) Any
money
judgment, writ or warrant of attachment, or similar process, in excess of
One
Hundred Thousand ($100,000) Dollars in the aggregate shall be entered or
filed
against the Company or any of its properties or other assets and shall remain
unpaid, unvacated, unbonded or unstayed for a period of fifteen (15) days
or in
any event later than five (5) days prior to the date of any proposed sale
thereunder; or
(g) Bankruptcy,
reorganization, insolvency or liquidation proceedings, or other proceedings
for relief under any bankruptcy law or any law for the relief of debtors
shall
be instituted
voluntarily by or involuntarily against the Company; or
(h) The
Company shall not deliver to the Holder the shares pursuant to paragraph
4
herein
within 30 days of receipt of Notice of Conversion; or
(i) any
of
the representations or warranties made by the Company herein, in the
Purchase
Agreement or the Security Agreement or in any certificate or financial or
other
written
statements heretofore or hereafter furnished by or on behalf of the Company
in
connection
with the execution and delivery of this Debenture, the Purchase Agreement
or the
Security
Agreement shall be false or misleading in a material respect on the Closing
Date; or
(j)
the
Company shall fail in any one of the following respects: (A) to file, within
sixty (60) days from the date hereof, a registration statement on Form S-l
or
SB-2,(or other applicable form ("Registration Statement"), with the Securities
and Exchange Commission ("SEC"), which Registration Statement shall register
for
sale all Conversion Shares which may be issuable upon conversion of this
Debenture; (B) to use its commercially reasonable efforts to have such
Registration Statement declared effective by the SEC within one hundred eighty
(180) days from the date hereof (and for purposes hereof, the Company will
be
deemed to be using its "commercially reasonable efforts" without any undue
hardship or unreasonable expenses, provided it fully and appropriately responds
to all comments from the SEC within ten (10) business days of receipt thereof,
and diligently continues to seek effectiveness of such registration statement);
or (C) to take such action to have the Registration Statement declared effective
by the SEC within three (3) business days following written confirmation
from
the SEC that it either will not review the Registration Statement or that
it has
no further comment on the Registration Statement; or
8
(k)
If
the Company is then a "reporting company" it shall fail to make the required
filings or statements with the Securities Exchange Commission by the appropriate
deadlines. Then,
or
at any time thereafter, unless cured, and in each and every such case, unless
such Event of Default shall have been waived in writing by the Holder (which
waiver shall not be deemed to be a waiver of any subsequent default) at the
option of the Holder and in the Holder's sole discretion, the Holder may
consider this Debenture immediately due and payable, without presentment,
demand, protest or (further) notice of any kind (other than notice of
acceleration), all of which are hereby expressly waived, anything herein
or in
any note or other instruments contained to the contrary notwithstanding,
and the
Holder may immediately, and without expiration of any period of grace, enforce
any and all of the Holder's rights and remedies provided herein or any other
rights or remedies afforded by law. Upon an Event of Default, interest shall
accrue on all amounts outstanding under this Debenture at the rate of 12%
per
annum, until such Event of Default is cured or the principal and all accrued
interest under this Debenture is paid in full.
12. Priority.
This
Debenture represents a prioritized obligation of the Company. However, no
recourse shall be had for the payment of the principal of this Debenture,
or for
any claim based hereon, or otherwise in respect hereof, against any
incorporator, unitholder, 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.
13. Severability. In
case
any provision of this Debenture is held by a court of competent jurisdiction
to
be excessive in scope or otherwise invalid or unenforceable, such provision
shall be adjusted rather than voided, if possible, so that it is enforceable
to
the maximum extent possible, and the validity and enforceability of the
remaining provisions of this Debenture will not in any way be affected or
impaired thereby.
14. Entire
Agreement.
This
Debenture, the Purchase Agreement, the Security Agreement and the agreements
referred to in this Debenture constitute the full and entire understanding
and
agreement between the Company and the Holder with respect to the subject
hereof.
Neither this Debenture nor any term hereof may be amended, waived, discharged
or
terminated other than by a written instrument signed by the Company and the
Holder.
15. Governing
Law. This
Debenture shall be governed by and construed in accordance with the laws
of New
York applicable to contracts made and wholly to be performed within the State
of
New York and shall be binding upon the successors and assigns of each party
hereto. The Holder and the Company hereby mutually waive trial by jury and
consent to exclusive jurisdiction and venue in the courts of the State of
New
York. At Holder's election, any dispute between the parties may be arbitrated
rather than litigated in the courts, before the American Arbitration Association
in New York City and pursuant to its rules. Upon demand made by the Holder
to
the Company, the Company agrees to submit to and participate in such
arbitration. This Agreement may be executed in counterparts, and the facsimile
transmission of an executed counterpart to this Agreement shall be effective
as
an original.
9
| 16. |
Miscellaneous.
|
(a) Notice
of Certain Events.
In the
case of the occurrence of a Reorganization described in Section 7 of this
Debenture, the Company shall cause to be mailed to the Holder of this Debenture
at its last address as it appears in the Company's security registry, at
least
twenty (20) days prior to the applicable record, effective or expiration
date
hereinafter specified (or, if such twenty (20) days' notice is not possible,
at
the earliest possible date prior to any such record, effective or expiration
date), a notice thereof, including, if applicable, a statement of the date
on
which such Reorganization is expected to become effective, and the date as
of
which it is expected that holders of record of the shares will be entitled
to
exchange their shares for securities, cash or other property deliverable
upon
such Reorganization.
(b) Transmittal
of Notices.
Except
as may be otherwise provided herein, any notice or other communication or
delivery required or permitted hereunder shall be in writing and shall be
delivered personally, or sent by telecopier machine or by a nationally
recognized overnight courier service, and shall be deemed given when so
delivered personally, or by telecopier machine or overnight courier service
as
follows:
| (1) |
If
to the Holder, to:
|
Fountainhead
Capital Partners Limited
Portman House
Hue Street
St. Helier
Portman House
Hue Street
St. Helier
Jersey,
Channel Islands JE4 5RP
With
a
copy to:
Xxxxxx
Xxxxxx, Esq.
Law Offices of Xxxxxx Xxxxxx
000 Xxxxx Xxxx Xxxx., Xxxxx 000
Xxxxx Xxxxxx, XX 00000
Telephone: 000-000-0000
Facsimile: 000-000-0000
Law Offices of Xxxxxx Xxxxxx
000 Xxxxx Xxxx Xxxx., Xxxxx 000
Xxxxx Xxxxxx, XX 00000
Telephone: 000-000-0000
Facsimile: 000-000-0000
| (2) |
If
to the Holder, to:
|
Vycor
Medical, Inc.
00 Xxxxxxx Xxxxx, Xxxxx 000
Xxxxxxx, Xxx Xxxx 00000
Telephone: 000-000-0000
Facsimile: 000-000-0000
00 Xxxxxxx Xxxxx, Xxxxx 000
Xxxxxxx, Xxx Xxxx 00000
Telephone: 000-000-0000
Facsimile: 000-000-0000
10
With
a
copy to:
Xxxxxxxx
X. Xxx Xxx.
Xxxxxxxxx
Xxxx Xxxxxxxx Xxxxxxx LLP
00
Xxxxxxxx, 00xx Floor
New
York,
NY 10006
Phone
000-000-0000
Fax
000-000-0000
Each,
of
the Holder or the Company may change the foregoing address by
notice
given pursuant to this Section 16(b).
(c)
Attorneys'
Fees.
Should
any party hereto employ an attorney for the purpose of enforcing or construing
this Debenture, or any judgment based on this Debenture, in any legal proceeding
whatsoever, including insolvency, bankruptcy, arbitration, declaratory relief
or
other litigation, the prevailing party shall be
entitled
to receive from the other party or parties thereto reimbursement for all
reasonable attorneys' fees and all reasonable costs, including but not limited
to service of process, filing fees, court and court reporter costs,
investigative costs, expert witness fees, and the cost of any bonds, whether
taxable or not, and that such reimbursement shall be
included
in any judgment or final order issued in that proceeding. The "prevailing
party"
means the party determined by
the
court
to most nearly prevail and not necessarily the one in whose favor a judgment
is
rendered.
IN
WITNESS WHEREOF, the Company has caused this instrument to be duly executed
by
an officer thereunto duly authorized.
Dated:
February 14, 2008
| VYCOR MEDICAL, INC. | |||
| /s/ Xxxxxxx X. Xxxxxx | By: |
/s/
Xxxxxxx Xxxxxxxx
|
|
| Xxxxxxx X. Xxxxxx | Name: |
Xxxxxxx
Xxxxxxxx
|
|
| President | Title | CEO | |
11
EXHIBIT
I
NOTICE
OF CONVERSION
(To
be
executed by the Registered Holder in order to Convert the
Debenture)
The
undersigned hereby irrevocably elects to convert $_________________ of
the
above Debenture No.__________ into
shares of common stock of Vycor Medical, Inc. according to the conditions
set
forth
in such Debenture, as of the date written below. If shares are to be issued
in
the name of a person other than the undersigned, the undersigned will pay
all
transfer and other taxes and charges payable with respect thereto.
Date
of
Conversion
__________________
Applicable
Conversion Price
__________________
Signature
_____________________________________
[Print
Name of Xxxxxx and Title of Signer]
Address:
_____________________________________
_____________________________________
SSN
or
EIN:
Shares
are to be registered in the following name:
Name:
Address:
Tel:
Fax:
SSN
or
EIN:
Shares
are to be sent or delivered to the following account:
Account
Name:
Address:
12
