Exhibit 4.1
NEITHER THIS SECURITY NOR THE SECURITIES INTO WHICH THIS SECURITY IS CONVERTIBLE
HAVE BEEN REGISTERED WITH THE SECURITIES AND EXCHANGE COMMISSION OR THE
SECURITIES COMMISSION OF ANY STATE IN RELIANCE UPON AN EXEMPTION FROM
REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES
ACT"), AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT PURSUANT TO AN
EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR PURSUANT TO AN
AVAILABLE EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT AND IN ACCORDANCE WITH APPLICABLE STATE
SECURITIES LAWS AS EVIDENCED BY A LEGAL OPINION OF COUNSEL TO THE TRANSFEROR TO
SUCH EFFECT, THE SUBSTANCE OF WHICH SHALL BE REASONABLY ACCEPTABLE TO THE
COMPANY.
JANUARY 14, 2009 CONVERTIBLE DEBENTURE
--------------------------------------
DUE FEBRUARY 28, 2009
---------------------
US $30,000.00
January 14, 2009
FOR VALUE RECEIVED, PlanGraphics, INC. (the "Maker" or the "Company"), a
Colorado corporation, having a place of business at 112 Est Main Street,
Frankfort, Kentucky, promises to pay to the order of Nutmeg/Fortuna Fund, LLLP
(the "Holder"), an Illinois Limited Liability Company having a place of business
at 155 Revere Dr., Suite 10, Northbrook, Illinois 60062, or such address as the
Holder may from time to time designate in writing to the Maker, the principal
sum of Thirty Thousand Dollars and No Cents ($30,000.00) as set forth in
Paragraph below.
1. Payments and Interest
a. Principal and Interest under this note shall be due and payable
on or before February 28, 2009 (the "Maturity Date").
b. The Payments must be made in US Dollars, by check or wire
transfer. Payments shall be considered made on the date upon
which the Holder receives the payment. If payment is made by
check and the check is returned by the bank, or otherwise does
not clear, then payment will not be considered to have been made,
regardless of date the check was received.
c. Interest on this Note shall accrue at a rate of 6% per annum
simple interest.
2. Default
a. The following shall constitute "Events of Default" under this
Note:
i. The Maker fails to make any payment required by this Note
within 10 days of its due date.
ii. The Maker becomes insolvent or unable to pay his debts as
they mature or makes an assignment for the benefit of
creditors, or any proceeding is instituted by or against the
Maker alleging that the Maker is insolvent or unable to pay
its debts as they mature, and any such proceeding, if
involuntary, is not dismissed or stayed on appeal or
otherwise within 30 days.
b. Upon the occurrence of an Event of Default:
i. the entire unpaid principal amount of this Note shall at
once become due and payable without requiring notice by the
Holder. Failure to provide notice shall not constitute a
waiver of this right; and
ii. Conversions.
1. If there has been a default, at any time until this
Debenture is no longer outstanding, this Debenture
shall be convertible, in whole or in part, into shares
of Common Stock at the sole option of the Holder, at
any time and from time to time (subject to the
conversion limitations set forth herein). The Holder
shall effect conversions by delivering to the Company a
Notice of Conversion, the form of which is attached
hereto as Schedule 1 (each, a "Notice of Conversion"),
specifying therein the principal amount of this
Debenture to be converted and the date on which such
conversion shall be effected (such date, the
"Conversion Date"). If no Conversion Date is specified
in a Notice of Conversion, the Conversion Date shall be
the date that such Notice of Conversion is deemed
delivered hereunder. 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, 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). The Company may deliver
an objection to any Notice of Conversion within 2
Business Days of delivery of such Notice of Conversion.
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.
2. Conversion Price. The "Conversion Price" in effect on
any Conversion Date shall be equal to the lesser of (a)
$0.002 per share, (b) fifty percent (50%) of the
average closing price for Common Stock for the five
trading days immediately prior to the Conversion Date.
3. Conversion Limitations. The Company shall not effect
any conversion of this Debenture, and a Holder shall
not have the right to convert any portion of this
Debenture, to the extent that after giving effect to
the conversion set forth on the applicable Notice of
Conversion, the Holder (together with the Holder's
Affiliates, and any other person or entity acting as a
group together with the Holder or any of the Holder's
Affiliates) would beneficially own in excess of the
Beneficial Ownership Limitation (as defined below). For
purposes of the foregoing sentence, the number of
shares of Common Stock beneficially owned by the Holder
and its Affiliates shall include the number of shares
of Common Stock issuable upon conversion of this
Debenture with respect to which such determination is
being made, but shall exclude the number of shares of
Common Stock which are issuable upon (A) conversion of
the remaining, unconverted principal amount of this
Debenture beneficially owned by the Holder or any of
its Affiliates and (B) exercise or conversion of the
unexercised or unconverted portion of any other
securities of the Company subject to a limitation on
conversion or exercise analogous to the limitation
contained herein (including, without limitation, any
other Debentures or the Warrants) beneficially owned by
the Holder or any of its Affiliates. Except as set
forth in the preceding sentence, for purposes of this
Section 2(c), beneficial ownership shall be calculated
in accordance with Section 13(d) of the Exchange Act
and the rules and regulations promulgated thereunder.
Upon the written or oral request of a Holder, the
Company shall within two Trading Days confirm orally
and in writing to the Holder the number of shares of
Common Stock then outstanding. In any case, the number
of outstanding shares of Common Stock shall be
determined after giving effect to the conversion or
exercise of securities of the Company, including this
Debenture, by the Holder or its Affiliates since the
date as of which such number of outstanding shares of
Common Stock was reported. The "Beneficial Ownership
Limitation" shall be 4.99% of the number of shares of
the Common Stock outstanding immediately after giving
effect to the issuance of shares of Common Stock
issuable upon conversion of this Debenture held by the
Holder. The Holder, upon not less than 61 days' prior
notice to the Company, may increase or decrease the
Beneficial Ownership Limitation provisions of this
Section 2(c). Any such increase or decrease will not be
effective until the 61st day after such notice is
delivered to the Company.
3. Maker recognizes that this Note represents moneys that were
advanced for a use in a business venture and constitutes a
business loan. Maker expressly represents that this loan is
for business purposes and therefore meets the business loan
exemption from Illinois usury laws.
4. It is the intent of the parties that in no event shall the
amount of interest due or payment in the nature of interest
payable hereunder exceed the maximum rate of interest
permitted by applicable law, as may be in effect from
time-to-time, and in the event the amount of interest due or
payable hereunder exceeds such maximum rate, interest shall
be reduced to the maximum amount that is permitted by
applicable law and the payment of any such excess shall be
deemed to be a prepayment of principal.
5. This Note shall be governed and construed in accordance with
the laws of the State of Illinois, without regard to
conflict of laws principles thereof. The Maker hereby
consents to the jurisdiction of the courts located in Cook
County, Illinois, as the exclusive forum to resolve any
disputes arising out of this Note. The Maker hereby waives
any objection it may have to the jurisdiction of such courts
or the laying of venue in such counties.
6. The Maker agrees to pay or reimburse the Holder and any
other holder hereof of all costs and expenses of enforcing,
and preserving its rights under this Note or any guarantee,
document or instrument executed in the connection herewith
(including reasonable attorneys' fees and costs and
reasonable time charges of attorneys who may be employees of
the Holder, whether in or out of court, in original or
appellate proceedings or in bankruptcy.)
7. Except as provided in this Note, presentment, protest,
notice, notice of dishonor, demand for payment, notice of
protest and notice of non-payment are hereby waived.
8. The failure or delay by the Holder of this Note in
exercising any of his rights hereunder in any instance shall
not constitute a waiver thereof in that or any other
instance. The Holder of this Note may not waive any of its
rights, except in an instrument in writing signed by the
Holder.
9. This Note may not be amended except in a writing signed by
the Maker and the Holder.
By: /S/ John C. Antenucci
Printed Name: John C. Antenucci
Date January 14, 2009
Schedule 1
NOTICE OF CONVERSION
The undersigned hereby elects to convert principal under the JANUARY
14, 2009, SECURED CONVERTIBLE DEBENTURE due FEBRUARY 28, 2009 of PlanGraphics,
Inc., a Colorado corporation (the "Company"), into shares of common stock (the
"Common Stock"), of the Company according to the conditions hereof, as of the
date written below. If shares of Common Stock are to be issued in the name of a
person other than the undersigned, the undersigned will pay all transfer taxes
payable with respect thereto and is delivering herewith such certificates and
opinions as reasonably requested by the Company in accordance therewith. No fee
will be charged to the holder for any conversion, except for such transfer
taxes, if any.
Conversion calculations:
Date to Effect Conversion:____________
Principal Amount of Debenture to be Converted:_________________
Number of shares of Common Stock to be issued:_________________
Signature:________________________
Name:
Address for Delivery of Common Stock Certificates:
- --------------------------------------------------
- --------------------------------------------------
- --------------------------------------------------
- --------------------------------------------------
Or
--
DWAC Instructions:
Broker No:
--------------------------
Account No:
-------------------------