Exhibit 10.1
Duly made and executed on this 1 day of October, 2009
By and Between
FutureIT, Inc.
Of 0 XxXxxxxx Xx. Xxxxxxxxxx Xxxx, Xxx, Xxxxxx
(hereinafter the “FIT”)
of the first part
and
Future I.T. Ltd
Of 0 XxXxxxxx Xx. Xxxxxxxxxx Xxxx, Xxx, Xxxxxx
(hereinafter the ”Borrower”)
of the second part
and
DataSafe Group Ltd
Of 0 XxXxxxxx Xx. Xxxxxxxxxx Xxxx, Xxx, Xxxxxx
(hereinafter the "Lender")
of the third part
| WHEREAS |
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FIT
has requested a loan from the Lender in the sum of up to 500,000 (five hundred thousand)
US Dollars (hereinafter the “Loan”) to be granted to the Borrower, a
fully owned subsidiary of FIT, and the Lender has agreed to grant the Loan to the
Borrower on the terms hereinafter; |
NOW, THEREFORE, it is declared
and stipulated between the parties as follows:
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The
preamble to this Agreement forms an integral part hereof. |
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2.1. |
The
Lender shall grant the Loan to the Borrower Upon execution of this
Agreement. The Loan shall be used By the Borrower for the development
of its business activity. |
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2.2. |
The
Loan and the interest thereon will be in US dollars |
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2.3. |
The
outstanding Loan amount will accrue interest at the rate of 10% per annum,
beginning on the date of granting the Loan and until the Repayment
Day, as defined below (hereinafter the “Interest”). |
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The
Interest will be calculated on the basis of the actual number of days elapsed in a year
consisting of 365 days. |
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The
Interest will be paid semi annually by the Borrower, on March 31 2010 and September 30 of
2010. |
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2.4. |
Without
derogating from any right and/or any other relief available to the
Lender under this Agreement and/or under any law, any amount due by
the Borrower to the Lender pursuant to this Agreement, which shall
not be paid within fourteen (14) days from the date such payment is
due, shall bear an additional annual interest (in addition to the
Interest) at the rate of 3%, accruing and accumulating with any such
amount due and unpaid (“Compound Interest”). |
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2.5. |
All
taxes, including withholding taxes and/or VAT, that the Borrower may be
required to pay to the Lender as a result of the terms and conditions
hereof, are included in the calculation of the Interest and the
Borrower is not required to restitute such sums to the Lender. |
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2.6. |
The
outstanding Loan amount will be repaid by the Borrower, upon its discretion,
in 1 (one) payment on or before December 31, 2010 (the “Repayment
Day”), unless otherwise agreed upon in writing between the
parties. |
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2.7. |
FIT
shall guarantee the payment of the Loan by the Borrower, and by signing this
Agreement hereby grants such guarantee. |
| 3. |
Repayment
upon Event of Default |
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Without
derogating from any right and/or any other relief available to the Lender under this
Agreement and/or under any law, in the occurance of any of the following events, the
Lender shall be entitled, subject to its sole discretion, to demand the immediate
repayment of its portion in the outstanding Loan amount, inclusive of any Interest
accrued until such date, and any other outstanding amounts owed to the Lender (including
Compound Interest), and the Borrower shall be obligated to pay all the said sums within
seven (7) days from receipt of a written notice thereof: |
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3.1. |
The
Borrower shall fail to pay any amount of Interest on a payment date and did
not remedy such breach within thirty (30) days from receipt of a
written notice thereof; or |
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3.2. |
FIT
and/or the Borrower or any of their subsidiaries shall make a general
assignment for the benefit of creditors, or admit in writing its
inability to pay its debts as they mature or become due, or shall
petition or apply for the appointment of a trustee or other
custodian, liquidator or receiver of FIT and/or the Borrower or such
subsidiary or of any substantial part of its assets or shall commence
any case or other proceeding relating to its assets under any
bankruptcy, reorganization, arrangement, insolvency, readjustment of
debt, dissolution or liquidation or similar law of any jurisdiction,
or shall take any corporate action to authorize or in furtherance of
any of the foregoing; or any such petition or application shall be
filed or any such case or other proceeding shall be commenced against
FIT and/or the Borrower or any of their subsidiaries, and the same
shall not have been dismissed within ninety (90) days of the filing
or commencement thereof or FIT and/or the Borrower or such subsidiary
shall indicate its approval thereof, consent thereto or acquiescence
therein; or a decree or order shall be entered appointing any such
trustee, custodian, liquidator or receiver or adjudicating FIT and/or
the Borrower or such subsidiary bankrupt or insolvent, or approving a
petition in any such case or other proceeding, or a decree or order
for relief shall be entered in respect of FIT and/or the Borrower or
such subsidiary in an involuntary case under any such bankruptcy or
insolvency laws, and such decree, order, judgment, petition or other
proceeding shall not have been dismissed within ninety (90) days of the
filing or commencement thereof; or |
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3.3. |
FIT
and/or the Borrower shall take any corporate action to liquidate its assets
or dissolve, or shall take any corporate action to consolidate or
merge with or into any other corporation or business entity, unless
FIT and/or the Borrower shall be the surviving legal entity of such
consolidation or merger or the surviving legal entity of such
consolidation or merger shall have assumed in full by a written
instrument the obligations under and in respect of this Agreement. |
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In
addition, in consideration for granting the Loan to the Borrower, for each 1 US Dollar
that will be lent to the Borrower by the Lender, the Lender will be issued by FIT with a
Warrant to purchase shares of common stock, par value $0.0001 per share of FIT at an
exercise price per share equal to 0.50 US Dollars in the form set forth in
Exhibit A hereto (the “Warrants”), and in total
up to 500,000 Warrants. |
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The
Lender will be entitled, subject to the terms and conditions of the Warrants, at any time
or from time to time after the issuance date of the Warrants, and during a period of 4
years, to exercise the Warrants. |
| 5. |
Participance
in future financing |
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It
is understood that FIT intends to raise additional funds for its ongoing activities by the
issuance of convertible debenture (the “Financing”). |
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The
Lender will be entitled to participate in the Financing (if completed by FIT) by way of
converting each 1 US Dollars lent by the Lender within the Loan to 1 US Dollars of the
Financing. |
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6.1. |
Entire
Agreement. This Agreement is the entire Agreement between the
parties hereto with respect to the subject matter hereof and
supersedes all prior Agreements and arrangements between the parties
hereto with respect to the subject matter hereof. |
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6.2. |
Waiver.
A failure by any of the Parties to this Agreement to assert its
rights for or upon any breach of this Agreement or any such other
agreement shall not be deemed a waiver of such rights nor shall any
waiver be implied from any act. No waiver in writing by a Party with
respect to any right shall extend its effect to any subsequent breach
either of like or different kind. |
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6.3. |
Severability.
In the event that any part or parts of this Agreement shall be held
illegal or null and void by any court or administrative body of
competent jurisdiction, such determination shall not effect the
remaining parts of this or such agreement and they shall remain in
full force and effect as if such part or parts determined illegal or
void had not been included herein; provided, however, that nothing in
this Section shall relieve any party of any liability for breach of
covenant, warranty or representation. |
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6.4. |
Assignment.
Neither this Agreement nor any rights or obligations hereunder may be
assigned, directly or indirectly, by any Party without the prior
written consent of the other Parties. |
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6.5. |
Books.
The books and accounts of the Lender will bind the Borrower and will
be used at all times as proof against it in respect of all the amounts owed
by it according to this Agreement and/or in respect of the other
details of this Agreement. |
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6.6. |
Applicable
Law And Dispute Resolution. All questions arising out of or
concerning this Agreement or its validity, interpretation,
performance or breach shall be governed and decided by application of
the laws of the state of Israel and without reference to its conflict
of law rules. The Parties shall make good faith efforts to resolve
amicably any disputes or claims arising out of this Agreement. Any
dispute or claim arising out of or relating to this Agreement, or the
breach thereof, which cannot be resolved by mutual agreement of the Parties,
shall be submitted to the exclusive jurisdiction of the competent
courts in Tel Aviv. |
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6.7. |
Headings.
The headings of the paragraphs of this Agreement are not a part of
and are not intended to govern, limit or aid in the construction of any term
or provision hereof. |
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6.8. |
Counterparts:
This Agreement and any amendment hereto may be executed in multiple
counterparts, each of which shall be deemed an original agreement and
all of which shall constitute one and the same agreement. |
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6.9. |
Amendments.
This Agreement may be amended only by the written consent of all
Parties hereto. |
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6.10. |
Notices.
Notices to be served hereunder shall be in writing as hereinafter
provided and shall be served upon the parties at the address set
forth above. Notices served by registered airmail shall be deemed
served on the day of actual delivery by the addressee’s receipt,
or at the expiration of the 7th (seventh) day after the date of
mailing, whichever is earlier. Notices served by e-mail, of facsimile
shall be deemed to be in writing and to have been served within 12
(twelve) hours of dispatch. |
IN WITNESS WHEREOF the parties have hereunder subscribed their names.
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| _____________________ |
_____________________ |
_____________________ |
| FutureIT Inc. |
Future I.T. Ltd. |
DataSafe Group Ltd. |
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| By: _________________ |
By: _________________ |
By: _________________ |
