ex_171452.htm


 


Exhibit 4.5


 


THE SECURITIES REPRESENTED BY THIS INSTRUMENT HAVE BEEN ACQUIRED FOR INVESTMENT AND NOT WITH A VIEW TO, OR IN CONNECTION WITH, THE SALE OR DISTRIBUTION THEREOF. NO SUCH SALE OR DISPOSITION MAY BE EFFECTED WITHOUT AN EFFECTIVE REGISTRATION STATEMENT RELATED THERETO OR AN OPINION OF COUNSEL REASONABLY ACCEPTABLE TO THE COMPANY THAT SUCH REGISTRATION IS NOT REQUIRED UNDER THE SECURITIES ACT OF 1933.


 


GREENBOX POS 


CONVERTIBLE PROMISSORY NOTE


 


	
			Principal Amount: $150,000 USD

				
			December 27, 2018

			



 


 


WHEREAS on December 27, 2018, 102065761 SASKATCHEWAN LTD., with its offices at 230-22nd St E. Suite 800. Saskatoon, Saskatchewan, Canada. S7K 0E9 (the “Holder”) loaned funds totaling, $150,000 to GreenBox POS a Nevada corporation with its office at 8880 Rio San Diego Drive, Suite 102, San Diego. CA 92108 (the “Company”). Payment for the loan was made directly to the Company in the form of a Wire Transfer as follows:


 


$150,000 USD deposit, wired directly to Bergerman Smith, LLP (“Bergerman Smith”) client trust account with “for the benefit of GreenBox POS” in the memo line via wire transfer.


 


This money shall be held in the Bergerman Smith client trust account until receipt of an executed copy of this note. Upon receipt of the executed Note, Berman Smith shall pay the $150,000.00 USD to Company via wire transfer pursuant to the following wire instructions:


 


U.S. Bank N.A.


425 Walnut Street


Cincinnati, OH 45202


 


Swift code: 


Account #


Routing #


 


WHEREAS the Company and Holder further agreed that such services provided by the Holder to the Company would be evidenced in a convertible note, which convertible note would be convertible into shares of common stock of the Company at the rate of 50% of the closing price of the stock on the day of conversion, in accordance with Section 3 below;


 


NOW THEREFORE THIS AGREEMENT WITNESSES that for and in consideration of the mutual premises and the mutual covenants and agreements contained herein, the parties covenant and agree each with the other as follows:


 



 




 




 


1.     Principal and Interest.


 


1.1     The Company, for value received, hereby promises to pay to the order of the Holder, the sum of One Hundred & Fifty Thousand Dollars ($150,000.00) USD, which amount represents the amount owed to Holder as of the money being transferred and deal closing.


 


1.2 This Convertible Promissory Note (the “Note”) shall bear twelve percent (12%) interest per annum. This Note shall be payable upon demand (“Demand Date”). Commencing on the Demand Date, all principal shall be payable by the Company upon demand made by the Holder. The Demand Date shall be any time after 12 months from the closing of this note that the Holder designates at their sole discretion. The Note is for a period of (12) months The Principal Amount and all accrued and unpaid interest, if not otherwise converted, will be paid in full on December 21, 2019 unless earlier demand is made.


 


1.3     The Company shall make quarterly interest payments to holder in advance of the quarter, the quarterly interest prepayments shall be in the amounts and on the dates listed below:


 


$3856.00 on December 27,2018


$3856.00 on February 27, 2019


$3856.00 on May 27, 2019


$ 3856 on August 27, 2019


 


1.4     At any time prior to the Demand Date, the Company may prepay and satisfy its obligations under this Note by paying to Holder the principal and any outstanding unpaid interest.


 


1.5     Upon payment in full of the principal and interest, or conversion, this Note shall be surrendered to the Company for cancellation.


 


1.6     The principal under this Note shall be payable at the principal office of the Company and shall be forwarded to the address of the Holder hereof as such Holder shall from time to time designate.


 


2.     Attorney's Fees. If the indebtedness represented by this Note or any part thereof is collected in bankruptcy, receivership or other judicial proceedings or if this Note is placed in the hands of attorneys for collection after default, the Company agrees to pay, in addition to the principal payable hereunder, reasonable attorneys' fees and costs incurred by the Holder.


 


	 	
			3.

				
			Conversion.

			



 


	 	
			3.1

				
			Voluntary Conversion.

			



 


3.1.1     Pre-Term Conversion. Holder shall have the right any time after six months from Closing, to convert the outstanding principal and accrued and unpaid interest into a number of


 



 




 




 


fully paid and non-assessable whole shares of the Company's $0.001 par value Series B common stock (“Common Stock”) determined in accordance with Section 3.2 below.


 


Similarly, the Company shall have the right any time prior to the Demand Date, to convert the outstanding principal and unpaid interest into a number of fully paid and non- assessable whole shares of the Company's $0.001 par value Series B common stock (“Common Stock”) determined in accordance with Section 3.2 below.


 


If the Holder or Company elects to convert prior to the Demand Date, any interest accrual upon the principal shall cease on the date of conversion, and Company shall not be obligated to make any future interest payments. The note shall be satisfied in accordance with section 1.5.


 


3.1.2     Post Term Conversion. The Holder shall also have the right any time after the expiration of the Demand Date, exercisable in whole or in part, to convert the outstanding principal and accrued and unpaid interest into a number of fully paid and non-assessable whole shares of the Company's $0.001 par value Series B common stock (“Common Stock”) determined in accordance with Section 3.2 below.


 


3.2     Shares Issuable. The number of whole shares of Common Stock into which this Note may be voluntarily converted (the “Conversion Shares”) shall be determined by taking the closing price of the shares of GreenBox POS on the day of conversion and discounting the price by 50% (the “Note Conversion Price”); provided, however, that, in no event, shall Holder be entitled to convert any portion of this Note in excess of that portion of this Note upon conversion of which the sum of (1) the number of shares of Common stock beneficially owned by Holder and its affiliates (other than shares of Common Stock which may be deemed beneficially owned through the ownership of the unconverted portion of this Note or the unexercised or unconverted portion of any other security of Maker subject to a limitation on conversion or exercise analogous to the limitations contained herein) and (2) the number of shares of common stock issuable upon the conversion of the portion of this Note with respect to which the determination of this proviso is being made, would result in the beneficial ownership by Holder and its affiliates of more than 4.99% of the outstanding shares of common stock of the Company. For purposes of the proviso to the immediately preceding sentence, beneficial ownership shall be determined in accordance with Section 13(d) of the Securities Exchange Act of 1934 and Regulation 13D-G thereunder, except as otherwise provided in clause (1) of such proviso. The number of shares of Common Stock to be issued upon each conversion of this Note shall be determined by dividing the Conversion Amount (as defined below) by the Note Conversion Price. The Term “Conversion Amount” means, with respect to any conversion of this Note, the sum of (1) the principal amount of this Note to be converted in such conversion plus, (2) at the Company's option, accrued and unpaid interest, if any, on such principal amount at the interest rate provided in this Note to the conversion date, provided; however, that the Company shall have the right to pay any or all interest in cash.


 


3.3     Notice and Conversion Procedures. After receipt of demand for repayment, the Company agrees to give the Holder notice at least five (5) business days prior to the time that the Company repays this Note. If the Holder elects to convert this Note, the Holder shall provide the Company with a written notice of conversion setting forth the amount to be converted. The


 



 




 




 


notice must be delivered to the Company together with this Note. Within twenty (20) business days of receipt of such notice, the Company shall deliver to the Holder certificate(s) for the Common Stock issuable upon such conversion and, if the entire principal amount was not so converted, a new note representing such balance.


 


	 	
			3.4

				
			Other Conversion Provisions.

			



 


(a)     Adjustment of Note Conversion Price. In the event the Company shall in any manner, subsequent to the issuance of this Note, approve a reclassification involving a reverse stock split and subdivision of the Company's issued and outstanding shares of Common Stock, the Note Conversion Price shall forthwith be adjusted by proportionately increasing the Note Conversion Price on the date that such subdivision shall become effective. In the event the Company shall in any manner, subsequent to the issuance of this Note, approve a reclassification involving a forward stock split and subdivision of the Company's issued and outstanding shares of Common Stock, the Note Conversion Price shall forthwith be adjusted by proportionately decreasing the Note Conversion Price on the date that such subdivision shall become effective.


 


(b)     Common Stock Defined. Whenever reference is made in this Note to the shares of Common Stock, the term “Common Stock” shall mean the Common Stock of the Company authorized as of the date hereof, and any other class of stock ranking on a parity with such Common Stock. Shares issuable upon conversion hereof shall include only shares of Common Stock of the Company.


 


3.5     No Fractional Shares. No fractional shares of Common Stock shall be issued upon conversion of this Note. In lieu of the Company issuing any fractional shares to the Holder upon the conversion of this Note, the Company shall pay to the Holder the amount of outstanding principal hereunder that is not so converted.


 


4.     Representations, Warranties and Covenants of the Company. The Company represents, warrants and covenants with the Holder as follows:


 


(a)     Authorization; Enforceability. All corporate action on the part of the Company, its officers, directors and stockholders necessary for the authorization, execution and delivery of this Note and the performance of all obligations of the Company hereunder has been taken, and this Note constitutes a valid and legally binding obligation of the Company, enforceable in accordance with its terms except (i) as limited by applicable bankruptcy, insolvency, reorganization, moratorium and other laws of general application affecting enforcement of creditors' rights generally, and (ii) as limited by laws relating to the availability of specific performance, injunctive relief or other equitable remedies.


 


(b)     Governmental Consents. No consent, approval, qualification, order or authorization of, or filing with. any local, state or federal governmental authority is required on the part of the Company in connection with the Company's valid execution, delivery or performance of this Note except any notices required to be filed with the Securities and Exchange Commission under Regulation D of the Securities Act of 1933, as amended (the “1933 Act”), or such filings as may


 



 




 




 


be required under applicable state securities laws, which, if applicable, will be timely filed within the applicable periods therefor.


 


(c)     No Violation. The execution, delivery and performance by the Company of this Note and the consummation of the transactions contemplated hereby will not result in a violation of its Certificate of Incorporation or Bylaws, in any material respect of any provision of any mortgage, agreement, instrument or contract to which it is a party or by which it is bound or, to the best of its knowledge, of any federal or state judgment, order, writ, decree, statute, rule or regulation applicable to the Company or be in material conflict with or constitute, with or without the passage of time or giving of notice, either a material default under any such provision or an event that results in the creation of any material lien, charge or encumbrance upon any assets of the Company or the suspension, revocation, impairment, forfeiture or nonrenewal of any material permit, license, authorization or approval applicable to the Company, its business or operations, or any of its assets or properties.


 


(d)    Registration. On conversion, Company will register with the Securities and Exchange Commission pursuant to Section 12 of the Securities Exchange Act of 1934 (the “1934 Act”), or will file reports pursuant to Section 15(d) of the 1934 Act, or otherwise cause a registration statement covering the securities under the 1933 Act to be in effect when the Investor desires to sell the Shares following any applicable hold period(s) they will be freely tradable and without any hold or legend restriction whatsoever.


 


5. Representations and Covenants of the Holder. The Company has entered into this Note in reliance upon the following representations and covenants of the Holder:


 


(a)     Investment Purpose. This Note and the Common Stock issuable upon conversion of the Note are acquired for investment and not with a view to the sale or distribution of any part thereof, and the Holder has no present intention of selling or engaging in any public distribution of the same except pursuant to a registration or exemption.


 


(b)     Private Issue. The Holder understands (i) that this Note and the Common Stock issuable upon conversion of this Note are not registered under the 1933 Act or qualified under applicable state securities laws, and (ii) that the Company is relying on an exemption from registration predicated on the representations set forth in this Section 8.


 


(c)     Financial Risk. The Holder has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of its investment, and has the ability to bear the economic risks of its investment.


 


6.     Assignment. Subject to the restrictions on transfer described in Section 8 below, the rights and obligations of the Company and the Holder shall be binding upon and benefit the successors, assigns, heirs, administrators and transferees of the parties.


 


7.     Waiver and Amendment. Any provision of this Note may be amended, waived or modified upon the written consent of the Company and the Holder.


 



 




 




 


8.     Transfer of This Note or Securities Issuable on Conversion Hereof. With respect to any offer, sale or other disposition of this Note or securities into which this Note may be converted, the Holder will give written notice to the Company prior thereto, describing briefly the manner thereof. Unless the Company reasonably determines that such transfer would violate applicable securities laws, or that such transfer would adversely affect the Company’s ability to account for future transactions to which it is a party as a pooling of interests, and notifies the Holder thereof within five (5) business days after receiving notice of the transfer, the Holder may effect such transfer. The Note thus transferred and each certificate representing the securities thus transferred shall bear a legend as to the applicable restrictions on transferability in order to ensure compliance with the 1933 Act, unless in the opinion of counsel for the Company such legend is not required in order to ensure compliance with the 1933 Act. The Company may issue stop transfer instructions to its transfer agent in connection with such restrictions.


 


9.     Notices. Any notice, other communication or payment required or permitted hereunder shall be in writing and shall be deemed to have been given upon delivery if personally delivered or three (3) business days after deposit if deposited in the United States mail for mailing by certified mail, postage prepaid. Each of the above addressees may change its address for purposes of this Section by giving to the other addressee notice of such new address in conformance with this Section.


 


10.     Governing Law. This Note is being delivered in and shall be construed in accordance with the laws of the State of California, without regard to the conflicts of law provisions thereof.


 


11.     Heading; References. All headings used herein are used for convenience only and shall not be used to construe or interpret this Note. Except as otherwise indicated, all references herein to Sections refer to Sections hereof.


 


12.     Waiver by the Company. The Company hereby waives demand, notice, presentment, protest and notice of dishonor.


 


13.     Delays. No delay by the Holder in exercising any power or right hereunder shall operate as a waiver of any power or right.


 


14.     Severability . If one or more provisions of this Note are held to be unenforceable under applicable law, such provision shall be excluded from this Note and the balance of the Note shall be interpreted as if such provision was so excluded and shall be enforceable in accordance with its terms.


 


15.     No Impairment. The Company will not, by any voluntary action, avoid or seek to avoid the observance or performance of any of the terms to be observed or performed hereunder by the Company, but will at all times in good faith assist in the carrying out of all the provisions of this Note and in the taking of all such action as may be necessary or appropriate in order to protect the rights of the Holder of this Note against impairment.


 


[Signature Page Follows]


 



 




 




 


IN WITNESS WHEREOF, GreenBox POS, LLC has caused this Note to be executed in its corporate name and this Note to be dated, issued and delivered, all on the date first above written.


 


 


 


	 	 	
			GREENBOX POS, LLC

			
	 	 	 
	 	 	 
	
			Date: December 27, 2018

				
			By: 

				
			/s/ Fredi Nisan                                                 

			
	 	 	
			Fredi Nisan

			
	 	
			Title: 

				
			CEO & Director

			
	 	 	 
	 	 	 
	 	
			By: 

				
			/s/ Ben Errez                                                   

			
	 	 	
			Ben Errez

			
	 	
			Title: 

				
			EVP & Director

			
	 	 	 
	 	 	 
	 	 	
			102065761 SASKATCHEWAN LTD.

			
	 	 	 
	 	 	 
	
			Date: December 27, 2018

				
			By: 

				
			/s/ Ivan Bergerman                                          

			
	 	 	
			Ivan Bergerman

			
	 	
			Its: 

				
			Director

			
	 	 	 
	 	 	 
	 	
			By:

				                                                                        
	 	 	 
	 	
			Its:

				
			Director