Exhibit 10.1
THIS NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR ANY STATE SECURITIES LAWS. THIS NOTE MAY NOT BE SOLD, OFFERED FOR SALE, PLEDGED OR HYPOTHECATED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT UNDER SUCH SECURITIES ACT AND ANY APPLICABLE STATE SECURITIES LAW OR AN OPINION OF COUNSEL REASONABLY SATISFACTORY TO THE ISSUING CORPORATION THAT SUCH REGISTRATION IS NOT REQUIRED.
Principal Amount $150,000 Issue Date: December 13, 2011
12% SENIOR SECURED PROMISSORY NOTE DUE FEBRUARY 13, 2012
FOR VALUE RECEIVED, Fortune Market Media, Inc., a Nevada corporation (“Borrower”), hereby promises to pay to the order of Forex International Trading Corp. (the "Holder"), without demand, the sum of ONE HUNDRED FIFTY THOUSAND AND 00/XX Dollars ($150,000.00), on February 13, 2012 (the "Maturity Date"), if not retired sooner. Borrower further promises to pay interest on the unpaid principal balance hereof at the rate of twelve percent (12%) per annum, such interest to be paid at maturity. Interest shall be calculated on the basis of a 360 day year and actual days elapsed. In no event shall the interest charged hereunder exceed the maximum permitted under the laws of the State of California.
The following terms shall apply to this Note:
ARTICLE I
GENERAL PROVISIONS
1.1
Payment Grace Period
. The Borrower shall have a three (3) day grace period to pay any monetary amounts due under this Note, after which grace period and during the pendency of any other Event of Default (as defined below) a default interest rate of fifteen percent (15%) per annum shall apply to the amounts owed hereunder.
1.2
Stock Issuance
. The Borrower shall immediately transfer to the Holder 100,000 shares of common stock of BlackBox SemiConductor, Inc., a Nevada corporation.
ARTICLE II
EVENT OF DEFAULT
The occurrence of any of the following events of default ("Event of Default") shall, at the option of the Holder hereof, make all sums of principal and interest then remaining unpaid hereon and all other amounts payable hereunder immediately due and payable, upon demand, without presentment, or grace period, all of which hereby are expressly waived, except as set forth below:
2.1
Failure to Pay Principal or Interest
. The Borrower fails to pay any installment of Principal Amount, interest or other sum due under this Note when due and such failure continues for a period of three (3) business days after the due date.
2.2
Breach of Covenant
. The Borrower breaches any material covenant or other term or condition of this Note in any material respect and such breach, if subject to cure, continues for a period of three (3) business days after written notice to the Borrower from the Holder.
2.3
Breach of Representations and Warranties
. Any material representation or warranty of the Borrower made herein, in the Note or in any agreement, statement or certificate given in writing pursuant hereto or in connection herewith or therewith shall be false or misleading in any material respect as of the date made.
2.4
Receiver or Trustee
. The Borrower or any Subsidiary of Borrower shall make an assignment for the benefit of creditors, or apply for or consent to the appointment of a receiver or trustee for them or for a substantial part of their property or business; or such a receiver or trustee shall otherwise be appointed.
2.5
Judgments
. Any money judgment, writ or similar final process shall be entered or filed against Borrower or any Subsidiary of Borrower or any of their property or other assets for more than Twenty Thousand Dollars ($20,000), and shall remain unvacated, unbonded or unstayed for a period of fifteen (15) days.
2.6
Non-Payment
. The Borrower shall have received a notice of default, which remains uncured for a period of more than three (3) days, on the payment of any one or more debts or obligations aggregating in excess of Twenty Thousand Dollars (US $20,000.00) beyond any applicable grace period;
2.7
Bankruptcy
. Bankruptcy, insolvency, reorganization or liquidation proceedings or other proceedings or relief under any bankruptcy law or any law, or the issuance of any notice in relation to such event, for the relief of debtors shall be instituted by or against the Borrower or any Subsidiary of Borrower and if instituted against them are not dismissed within forty-five (45) days of initiation.
2.8
Delisting
. Delisting of the Common Stock from any principal market; failure to comply with the requirements for continued listing on a principal market for a period of seven consecutive trading days; or notification from a principal market that the Borrower is not in compliance with the conditions for such continued listing on such principal market.
ARTICLE III
SECURITY INTEREST
3.1
Security Interest/Waiver of Automatic Stay
. This Note is secured by a security interest in 10,000,000 shares of common stock of BlackBox SemiConductor, Inc., a Nevada corporation, granted to the Holder for the benefit of the Holder pursuant to a Stock Pledge Agreement, as delivered by Borrower to Holder. The Borrower acknowledges and agrees that should a proceeding under any bankruptcy or insolvency law be commenced by or against the Borrower, or if any of the Collateral (as defined in the Security Agreement) should become the subject of any bankruptcy or insolvency proceeding, then the Holder should be entitled to, among other relief to which the Holder may be entitled under the Stock Pledge Agreement and any other agreement to which the Borrower and Holder are parties (collectively, "Loan Documents") and/or applicable law, an order from the court granting immediate relief from the automatic stay pursuant to 11 U.S.C. Section 362 to permit the Holder to exercise all of its rights and remedies pursuant to the Loan Documents and/or applicable law. TO THE EXTENT PERMITTED BY LAW, THE BORROWER EXPRESSLY WAIVES THE BENEFIT OF THE AUTOMATIC STAY IMPOSED BY 11 U.S.C. SECTION 362. FURTHERMORE, THE BORROWER EXPRESSLY ACKNOWLEDGES AND AGREES THAT NEITHER 11 U.S.C. SECTION 362 NOR ANY OTHER SECTION OF THE BANKRUPTCY CODE OR OTHER STATUTE OR RULE (INCLUDING, WITHOUT LIMITATION, 11 U.S.C. SECTION 105) SHALL STAY, INTERDICT, CONDITION, REDUCE OR INHIBIT IN ANY WAY THE ABILITY OF THE HOLDER TO ENFORCE ANY OF ITS RIGHTS AND REMEDIES UNDER THE LOAN DOCUMENTS AND/OR APPLICABLE LAW. The Borrower hereby consents to any motion for relief from stay that may be filed by the Holder in any bankruptcy or insolvency proceeding initiated by or against the Borrower and, further, agrees not to file any opposition to any motion for relief from stay filed by the Holder. The Borrower represents, acknowledges and agrees that this provision is a specific and material aspect of the Loan Documents, and that the Holder would not agree to the terms of the Loan Documents if this waiver were not a part of this Note. The Borrower further represents, acknowledges and agrees that this waiver is knowingly, intelligently and voluntarily made, that neither the Holder nor any person acting on behalf of the Holder has made any representations to induce this waiver, that the Borrower has been represented (or has had the opportunity to he represented) in the signing of this Note and the Loan Documents and in the making of this waiver by independent legal counsel selected by the Borrower and that the Borrower has discussed this waiver with counsel.
ARTICLE IV
MISCELLANEOUS
4.1
Failure or Indulgence Not Waiver
. No failure or delay on the part of Holder hereof in the exercise of any power, right or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any such power, right or privilege preclude other or further exercise thereof or of any other right, power or privilege. All rights and remedies existing hereunder are cumulative to, and not exclusive of, any rights or remedies otherwise available.
4.2
Notices
. All notices, demands, requests, consents, approvals, and other communications required or permitted hereunder shall be in writing and, unless otherwise specified herein, shall be (i) personally served, (ii) deposited in the mail, registered or certified, return receipt requested, postage prepaid, (iii) delivered by reputable air courier service with charges prepaid, or (iv) transmitted by hand delivery, telegram, or facsimile, addressed as set forth below or to such other address as such party shall have specified most recently by written notice. Any notice or other communication required or permitted to be given hereunder shall be deemed effective (a) upon hand delivery or delivery by facsimile, with accurate confirmation generated by the transmitting facsimile machine, at the address or number designated below (if delivered on a business day during normal business hours where such notice is to be received), or the first business day following such delivery (if delivered other than on a business day during normal business hours where such notice is to be received) or (b) on the second business day following the date of mailing by express courier service, fully prepaid, addressed to such address, or upon actual receipt of such mailing, whichever shall first occur. The addresses for such communications shall be: (i) if to the Borrower to: Fortune Media Market, Inc., 19028 Ventura Blvd., Suite #270, Tarzana, CA 91356, Attn: Arthur Katz, CEO, telecopier: (818) 479-8180, and (ii) if to the Holder, to Moria 30 Avenue, Haifa, Israel 34572, with a copy by telecopier only to Fleming PLLC, 49 Front Street, Suite 206, Rockville Centre, New York 11570, telecopier number: (516) 977-1209.
4.3
Amendment Provision
. The term "Note" and all reference thereto, as used throughout this instrument, shall mean this instrument as originally executed, or if later amended or supplemented, then as so amended or supplemented.
4.4
Assignability
. This Note shall be binding upon the Borrower and its successors and assigns, and shall inure to the benefit of the Holder and its successors and assigns. The Borrower may not assign any of its obligations under this Note without the consent of the Holder.
4.5
Cost of Collection
. If default is made in the payment of this Note, Borrower shall pay the Holder hereof reasonable costs of collection, including reasonable attorneys' fees.
4.6
Governing Law
. This Note shall be governed by and construed in accordance with the laws of the State of California. Any action brought by either party against the other concerning the transactions contemplated by this Agreement shall be brought only in the state courts of California or in the federal courts located in the State of California. Both parties and the individual signing this Agreement on behalf of the Borrower agree to submit to the jurisdiction of such courts. The prevailing party shall be entitled to recover from the other party its reasonable attorney's fees and costs.
4.7
Maximum Payments
. Nothing contained herein shall be deemed to establish or require the payment of a rate of interest or other charges in excess of the maximum permitted by applicable law. In the event that the rate of interest required to be paid or other charges hereunder exceed the maximum permitted by such law, any payments in excess of such maximum shall be credited against amounts owed by the Borrower to the Holder and thus refunded to the Borrower.
4.8
Shareholder Status
. The Holder shall not have rights as a shareholder of the Borrower with respect to unconverted portions of this Note. However, the Holder will have all the rights of a shareholder of the Borrower with respect to the shares of Common Stock to be received by Holder after delivery by the Holder of a Conversion Notice to the Borrower.
IN WITNESS WHEREOF
, Borrower has caused this Note to be signed in its name by an authorized officer as of the 13th day of December, 2011.
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Fortune Market Media, Inc.
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By:
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/s/ Arthur Katz
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Name: Arthur Katz
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Title: CEO
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Exhibit 10.2
STOCK PLEDGE AGREEMENT
THIS STOCK PLEDGE AGREEMENT, effective as of December 13, 2011, is executed by
Fortune Market Media, Inc
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, a Nevada corporation
(“Borrower”), in favor of Forex International Trading Corp., a Nevada corporation (“Lender”).
RECITALS
A.
Lender has agreed to make a loan to Borrower in the original principal amount of $150,000 (the “Loan”);
B.
The Loan will be evidenced by a Promissory Note payable to the order of Lender (hereafter Borrower’s obligations under such Promissory Note and all documents related thereto and all renewals, extensions, amendments, modifications and restatements thereof shall be referred to as the “
Obligations”).
C.
The proceeds of the Loan will be used by Borrower solely for business purposes.
D.
To secure payment of the Obligations and as a condition to making the Loan, Lender requires, among other things, that Borrower execute and deliver this Agreement.
NOW, THEREFORE, in consideration of the foregoing and the terms and conditions hereafter set forth, Borrower agrees as follows:
1.
Pledge
. As security for payment of the Obligations, Borrower hereby grants to Lender a security interest in, and hereby assigns to Lender all right, title and interest of Borrower in and to the following described property (hereafter referred to as “
Collateral”):
10,000,000 issued and outstanding shares of common stock of BlackBox SemiConductor, a Nevada corporation (the “Company”), including without limitation, all evidence of the same, all rights to purchase or acquire the same and all rights to draws, payments, dividends, disbursements and all other types of dividend and distributions made by the Company to Borrower, together with all proceeds thereof (“Distributions”), now existing and/or hereafter arising.
2.
Representations and Warranties
. Borrower represents and warrants to Lender that:
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(a)
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Borrower has, and has duly exercised, all requisite power and authority to enter into this Agreement, to pledge its interest in the Collateral and to carry out the transactions contemplated by this Agreement.
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(b)
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Borrower is the legal and beneficial owner of all of the Collateral.
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(c)
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All of the Collateral is free of any pledge, mortgage, hypothecation, lien, charge, encumbrance or security interest or the proceeds thereof, except for that granted hereunder.
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(d)
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The execution and delivery of this Agreement, and the performance of its terms, will not violate or constitute a default under the terms of any other agreement, indenture or other instrument, license, judgment, decree, order, law, statute, code, ordinance or other governmental rule or regulation, applicable to Borrower or any of Borrower’s property or the consent to this Agreement and the performance of its terms has been obtained from all necessary third parties.
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(e)
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The execution and delivery of this Agreement, and the performance of its terms, will not result in any violation of any provision of the articles of incorporation, bylaws and shareholder agreements, if any, pertaining to Borrower or Company or the consent to this Agreement and the performance of its terms has been obtained from all necessary third parties.
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(f)
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Upon execution and delivery to Lender of this Agreement and the recording of a financing statement with the Maryland Secretary of State covering the Collateral, Lender shall have a valid first priority lien upon and a perfected security interest in the Collateral and the proceeds thereof.
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(g)
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All of the Collateral is evidenced by Certificate No. and Stock Power Attached here.
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3.
Covenants
. Borrower agrees as follows:
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(a)
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Upon the occurrence of a default under any of the documents executed in connection with the Loan, Lender may collect and receive any and all Distributions with respect to the Collateral and may apply all such collections to the Obligations in such order of application as Lender may elect. If Borrower shall receive any Distributions, such Distributions shall be received as Lender’s agent, in trust for Lender, and Borrower shall deliver such Distributions forthwith to Lender in the exact form received with, as applicable, Borrower’s endorsement if necessary. So long as any portion of the Obligations remains unpaid and if Borrower is in default in any of the Obligations, all voting rights of Borrower in the Collateral may be exercised by Lender, in its sole discretion, as the attorney-in-fact of Borrower.
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(b)
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Upon the occurrence of a default under any of the documents executed in connection with the Loan, Lender may, without demand of performance or other demand, advertisement, or notice of any kind, to or upon Borrower or any other person (all of which are, to the extent permitted by law, hereby expressly waived), forthwith realize upon the Collateral or any part thereof, or interest therein, in one or more parcels at public or private sale or sales, at any exchange, broker’s board or at any of Lender’s offices or elsewhere, at such prices and on such terms (including, but without limitation, a requirement that any purchaser of all or any part of the Collateral purchase the Collateral for investment and without any intention to make a distribution thereof) as it may deem best, for cash or on credit, or for future delivery without assumption of any credit risk, with the right to Lender or any purchaser to purchase upon any such sale the whole or any part of the Collateral free of any right or equity of redemption in Borrower, which right or equity is hereby expressly waived and released. Any disposition made in accordance with the provisions of this paragraph shall be deemed to have been commercially reasonable.
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(c)
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In addition to the foregoing, upon the occurrence of a default under any of the documents executed in connection herewith, Lender may, at its option and without demand or notice, exercise any of the rights and remedies of a secured party under the Uniform Commercial Code or any other applicable law. If Lender disposes of any of the Collateral, the proceeds of such disposition shall be applied as set forth under applicable law. Borrower specifically grants to Lender the right to apply such proceeds to the attorneys’ fees and legal expenses incurred by Lender in connection with the negotiation with Borrower and its representatives, successors or assigns, collection of the Obligations, or protection of Lender’s position.
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(d)
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Borrower hereby covenants that, without Lender’s written consent, until all of the Obligations have been satisfied in full, Borrower will not sell, convey, or otherwise dispose of any of Borrower’s interest in the Collateral or any interest therein or create, incur, or permit to exist any pledge, mortgage, lien, charge, encumbrance or any security interest whatsoever in or with respect to any of the Collateral or the proceeds thereof, other than that created hereby, except as authorized by Lender in writing in its sole discretion.
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(e)
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Borrower warrants and will, at its own expense, defend its right, title and the security interest in and to the Collateral against the claims of any person, firm, corporation or other entity.
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(f)
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Borrower, by entering into this Agreement and negotiating the terms hereof, hereby waives any rights it may have to demand any notices other than those provided for herein or required by law and any right to a hearing as a condition precedent to Lender’s exercise of its rights hereunder.
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(g)
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If any notification of intended disposition of any of the Collateral is required by law, such notification shall be deemed reasonably and properly given upon deposit with the United States Postal Service at least ten (10) days before such disposition, postage prepaid, addressed to the Borrower at
19028 Ventura Blvd., Suite #270, Tarzana, CA 91356, Attn: Arthur Katz, CEO
. Such deposit may be established by affidavit of a representative of Lender, receipts or other reasonable method.
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(h)
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No delay or failure by Lender in the exercise of any right or remedy shall constitute a waiver thereof, and no single or partial exercise by Lender of any right or remedy shall preclude other or further exercise thereof or the exercise of any other right or remedy.
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(i)
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This Agreement and the rights and obligations of the parties hereunder shall be construed and governed by the laws of the State of North Dakota and shall be binding upon and inure to the benefit of the parties hereto and their successors and assigns.
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(j)
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That upon Lender’s disposition of the Collateral, Borrower irrevocably consents that Lender or the purchaser of the Collateral shall become a substitute shareholder of the Company notwithstanding any provision of any agreement of the shareholders of the Company or other organizational documents of the Company to the contrary.
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(k)
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That Borrower will not vote or consent to any action which would (i) terminate or dissolve the Company, (ii) have the effect, directly or indirectly, in diluting the percentage interest in the Company now represented by the Collateral and agrees that any such purported action shall be deemed null and void, and/or (iii) cause the issuance, directly or indirectly, of any ownership interest, debt or other interest in the Company which may have any rights superior to Lender in the Collateral, except as authorized by Lender in writing in its sole discretion.
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4.
Termination
. Upon payment of all Obligations in full by Borrower, this Agreement shall be automatically terminated without any action by the parties and shall be of no further force or effect.
[signature page to follow]
IN WITNESS WHEREOF, the undersigned has caused this Stock Pledge Agreement to be duly executed as of the day and year first above written.
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Fortune Market Media, Inc.
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By:
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/s/ Arthur Katz
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Name: Arthur Katz
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Title: CEO
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