Phoenix International Ventures, Inc
Exhibit
4.1
Phoenix
International Ventures, Inc
“Promissory
Note Agreement”
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NOTE
AMOUNT
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$
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ISSUANCE
DATE
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__________,
2008
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MATURITY
DATE
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__________,
2009
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FOR VALUE
RECEIVED, Phoenix International
Ventures, Inc., a Nevada Corporation (OTC BB: PIVN) hereby
promises to pay______________. (the “Holder”)
on ____, 2009 (the “Maturity Date”), or earlier, the Note Amount of
____________ dollars U.S. (_________), plus accrued and unpaid interest thereon,
in such amounts, at such times and on such terms and conditions as are specified
herein. The Company, and the Holder are sometimes hereinafter collectively
referred to as the “Parties” and each a
“Party” to this
Agreement.
WHEREAS,
the Company desires to accept finance, from the Holder, for working capital
needs.
WHEREAS,
the Holder desires to finance the Company upon the terms and conditions set
forth in this Agreement.
In
consideration of the above recitals, the terms and covenants of this Agreement
and other good and valuable consideration, including the payment of money from
Holder to Company, the receipt of which is hereby acknowledged to be the date of
issuance, and intending to be bound hereby, the Parties agree as
follows:
Article 1 Payment; Repayment;
Interest
Section 1.1 Interest
The
Company shall pay interest on the Note Amount (“Note Amount
Interest”) at the rate of fifteen percent (15%) per annum. Interest shall
be accrued on a monthly basis. The Company shall make mandatory quarterly
payments of interest (the “Note Amount Interest
Payments”), in an amount equal to the interest accrued on the balance of
the Note. The Note Amount Interest Payments shall commence on the third month
following the Issuance Date and shall continue every three months until the
Maturity Date.
Section
1.2 Payment and repayment
Payment.
The
Holder encloses herewith a check payable to, or will immediately make a wire
transfer payment to, “Phoenix International Ventures, Inc.” or to its wholly
owned subsidiary “Phoenix Europe Ventures, Inc” in the full amount of the
Note. The date of issuance shall be determined to be the date the
funds appear in the company’s bank account.
Repayment
The
Company shall pay the holder the full Note Amount of ___________ U.S. (________)
on _________, 2009 (the “Maturity Date”), or earlier plus accrued and unpaid
interest. There will be no penalties for early repayment.
-1-
Article 2 Incentive shares
and warrants
a. The Company shall issue to the holder
____________________________ (_________) shares of unregistered, restricted
Common Stock (the “Incentive
Shares”) as an incentive
for the Holder entering into this Agreement with the Company. The Incentive
Shares shall be issued and delivered to the Holder upon Closing. The Company
hereby acknowledges that the date of consideration for the Incentive Shares is
___________, 2008. The Xxxxxx xxxxx acknowledges that he is aware that these
shares are restricted under rule 144 and cannot be sold for a period of at least
six (6) months from date of issuance.
b. The
Company shall grant the holder a warrant to purchase _______________
(___________) shares of common stock (the “Warrants”). Each Warrant
is exercisable for a period of two years at an exercise price that shall be
equal to the closing price of the Company’s stock at the end of trading of the
day of issuance or closest previous day. The Holder hereby acknowledges that he
is aware that once exercised these shares are restricted under rule 144 and
cannot be sold for a period of six (6) months from date of
issuance.
Article
3
Collateral
The
Company shall cause to happen that a shareholder (the “Pledge”) shall provide
free trading stock in the form of a stock certificate as collateral (Stock Based
Collateral Agreement Annex A). The Stock Certificate shall be entrusted to
____________. The Pledgee shall provide letters authorizing the transfer of the
shares from his name to the name of the Holder. The total amount of shares to be
pledged as collateral shall be__________________ shares that are worth
______________ U.S.D. at the date of issuance. Assumption of the collateral will
occur in accordance with article 4 b of this agreement and Annex A. The Holder
shall receive shares in total worth equal to the amount owed to him by the
company so long as they do not exceed ________________ shares. Any remainder
shall be kept under the name of the Pledgee who provided the
collateral. These shares shall only be released to the holder
upon a default by the Company as provided below.
Article
4 Default and
remedies
There
shall be 2 kinds of defaults recognized under this agreement:
a. In case, the Company defaults on paying
the quarterly interest payments as described in article 1 section 1.1. In such a
case, the Company will have a grace period of ten (10) days in which to come up
with the payment and suffer no penalty. If the company fails to pay within the
ten day period then it shall suffer from an automatic increase of 5% annual
percentage rate increase. This increase shall also be applied retroactively to
the date of the latest payment done by the company.
b. In case,
the Company defaults on paying the whole or part of the principal on Maturity
Date, the Holder may direct Mr. Arad to assume the collateral and transfer the
applicable amount of collateralized shares in to the holder’s name.
Concurrently, the Holder shall have the right to sell those shares up to the
amount of principal and accrued and unpaid interest owed on this Note any
balance shall be returned to the Pledgee.
-2-
Article
5 Representations
of Holder
a. The
Holder acknowledges that the Company is effecting this transaction pursuant to
Regulation D promulgated under the Securities Act of 1933, as amended (the
“Act”) and that all securities (the Note, the shares and the Warrants) will bear
standard restrictive legends and may not be offered or resold absent an
effective registration statement or pursuant to an exemption from the
Act.
b. The
Holder represents that he is acquiring the securities for investment purposes
with no intention to resell the securities.
c. The
Holder represents that they are an “accredited investor” as such term is defined
under Regulation D of the Act and that they can afford the loss of their entire
investment.
IN
WITNESS WHEREOF, the Company has duly executed this Debenture as of the date
first written above.
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Name: Xxxx
Xxxxxxxxx
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Title: Vice
President
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Name:
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-3-
Annex A:
Stock Based Collateral Agreement
BACKGROUND
This
Stock Based Collateral Agreement (this “Agreement”), dated as
of ___________, 2008, among _____________. (the “Holder”), Xx. Xxxx
Xxxx ( “Mr.
Arad”) and Phoenix International Ventures, Inc., a Nevada corporation
(the “Company”).
The
Company has entered into a Promissory Note Agreement (“Note Agreement”), dated
as of ______________, 2008, pursuant to which the Noteholder is providing the
Company financial accommodations in the total amount of US
$_____________.
In order
to induce the Holder to provide the financial accommodations described in the
Note Agreement, the Company has agreed to cause to happen a security interest in
the collateral described herein to the Holder on the terms and conditions set
forth herein.
NOW,
THEREFORE, in consideration of the premises and for other good and valuable
consideration the receipt of which is hereby acknowledged, the parties hereto
agree as follows:
1. The
Collateral. To secure the
full and punctual payment and performance of the obligations under the Note
Agreement, the Company hereby submits stock certificate number P-1243 of
“Phoenix International Ventures, Inc” in the amount of 60,000 shares belonging
to Xx. Xxxx Xxxxxxx (the “Collateral”). The Company herby represents that
Xx. Xxxxxxx has agreed to provide the Company with this share certificate for
the use as collateral.
2. Delivery of
Collateral. The
certificate representing or evidencing the Collateral shall be delivered to and
held on behalf of the Holder, by Mr. Arad and shall be accompanied by duly
executed instruments of transfer or assignments in blank, all in form and
substance satisfactory to execute a transfer of the shares from Xx. Xxxxxxx to
the Holder.
3. Representations
and Warranties of the Company:
(a) the execution, delivery and performance
of this Agreement and the pledge of the Collateral hereunder do not and will not
result in any violation of any agreement, indenture, instrument, license,
judgment, decree, order, law, statute, ordinance or other governmental rule or
regulation applicable to any Pledgor;
(c) that Xx. Xxxxxxx has agreed to provide
the Company with this share certificate for the use as
collateral.
(d) all of the shares of the Pledged Stock
have been duly authorized, validly issued and are fully paid and nonassessable
and are free trading;
(e) no consent or approval of any person,
corporation, governmental body, regulatory authority or other entity, is or will
be necessary for (i) the execution, delivery and performance of this Agreement,
(ii) the exercise by the holder of any rights with respect to the
Collateral
(f) there are no pending or, to the best of
Company’s knowledge, threatened actions or proceedings before any court,
judicial body, administrative agency or arbitrator which may materially
adversely affect the Collateral;
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(g) the Company has the requisite power and
authority to enter into this Agreement and to pledge and assign the Collateral
to the Holder in accordance with the terms of this
Agreement;
4. Event of
Default. An “Event of
Default” under this Agreement shall occur upon the happening of a failure of the
company to pay the principal on the day of maturity in accordance with the Note
Agreement.
5. Remedies. In case an Event of Default shall
have occurred and is continuing beyond any applicable grace period, the Holder
may, subject to a written notice to the Company and Mr.
Arad:
(a) Direct Mr. Arad to assume the
collateral and order the Company’s transfer agent to replace the
collateral certificate and issue a stock certificate in the Holder’s name in the
amount that satisfies the debt so long as in no case shall the amount of shares
transferred exceed ___________ shares.
(b) Subject to any requirement of
applicable law, sell, assign and deliver the whole or, from time to time, any
part of the Collateral at the time held by the Holder, at any private sale or at
public auction, with or without demand, advertisement or notice of the time or
place of sale or adjournment thereof or otherwise (all of which are hereby
waived, except such notice as is required by applicable law and cannot be
waived), for cash or credit or for other property for immediate or future
delivery, and for such price or prices and on such terms as the Pledgee in its
sole discretion may determine, or as may be required by applicable
law. Any proceeds realized above the amount of principal and accrued
but unpaid interest shall be returned to the Company.
6. Termination. This Stock Pledge Agreement shall
terminate and be of no further force or effect upon the irrevocable repayment in
full of the Obligations in the Note agreement. Without prejudice to the
generality of the above, if the all of the Obligations have been satisfied,
including through the conversion of the Note into common stock of the Company
and/or the redemption of the Note prior to its Maturity Date (as defined
therein), then Mr. Arad shall return to the Company the Stock Certificates and
the blank assignment letters.
7. Miscellaneous.
(a) This Agreement constitutes the entire
and final agreement among the parties with respect to the subject matter hereof
and may not be changed, terminated or otherwise varied except by a writing duly
executed by the parties hereto.
(b) Any notice or other communication
required or permitted pursuant to this Agreement shall be given in accordance
with the Note Agreement.
(c) This Agreement may be executed in one
or more counterparts, each of which shall be deemed an original and all of which
when taken together shall constitute one and the same agreement. Any signature
delivered by a party by facsimile transmission shall be deemed an original
signature hereto.
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IN
WITNESS WHEREOF, the parties have duly executed this Agreement as of the day and
year first written above.
PHOENIX
INTERNATIONAL VENTURES INC
By:
Name:
Xxxx Xxxxxxxxx
Title:
Vice President
Xx. Xxxx
Xxxx
:
Name (THE
HOLDER)
:______________________
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SCHEDULE A to the Stock
Based Collateral Agreement
Pledged
Stock
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Pledgor
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Issuer
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Class of Stock
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Stock Certificate Number
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Par Value
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Number of
Shares
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Xxxx
Xxxxxxx
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Phoenix
International Ventures Inc
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Common
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P1243
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$0.001
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60,000
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Phoenix
International Ventures Inc
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Common
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Phoenix
International Ventures Inc
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Common
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-7-
Transfer
Details:
Beneficiary:
Phoenix
Europe Ventures Ltd (wholly owned subsidiary of Phoenix International Ventures,
Inc)
00X
Xxxxxx Xxxxxxxx Xx.
Xxxxxxxx
00000
Xxxxxx
Xxxxx
Details:
Bank
Hamizrahi
Herzliya
Pitucah Branch
0 Xxx
Xxxx Xx.
Xxxxxxxx,
Xxxxxx
Account
Number:
-8-
