Hudson Bay Master Fund Ltd. 120 Broadway, 40th Floor New York, New York 10271 Ladies and Gentlemen: We hereby reference the Securities Purchase Agreement (the "Purchase Agreement"), dated as of October 27, 2010, by and between Socket Mobile, Inc. (the...
Exhibit 10.1
November 3, 2010
Xxxxxx Bay Master Fund Ltd.
000 Xxxxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
We hereby reference the Securities Purchase Agreement (the "Purchase Agreement"),
dated as of October 27, 2010, by and between Socket Mobile, Inc. (the "Company")
and Xxxxxx Bay Master Fund Ltd. (the "Buyer"). Capitalized terms used
but not defined herein shall have the meanings ascribed to such terms in the
Purchase Agreement.
This letter agreement memorializes the agreement between the Company and the
Buyer to extend the date on which the Buyer shall have the right to terminate
its obligations under the Purchase Agreement if the Closing shall not have occurred
by such date.
1. Waiver. The Buyer hereby waives its right to terminate its obligations
under the Purchase Agreement pursuant to Section 8 of the Purchase Agreement
until the close of business on November 5, 2010. The Buyer shall have such right
of termination under Section 8 of the Purchase Agreement in the event that the
Closing shall not have occurred by the close of business on November 5, 2010,
subject to the conditions set forth therein.
2. Amendments.
(a) Section 1(b) of the Purchase Agreement is hereby amended and restated as follows:
Closing. The closing (the "Closing") of the purchase
of the Notes and the Warrants by the Buyers shall occur at the offices of Xxxxxxxxx
Xxxxxxx, LLP, 00 X. Xxxxxx Xxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxxx 00000. The date
and time of the Closing (the "Closing Date") shall be 10:00
a.m., New York time, on the first (1st) Business Day on which the conditions
to the Closing set forth in Sections 6 and 7 below are satisfied or waived (or
such later date as is mutually agreed to by the Company and each Buyer). As
used herein "Business Day" means any day other than a Saturday,
Sunday or other day on which commercial banks in New York, New York are authorized
or required by law to remain closed.
(b) Section 9(a) of the Purchase Agreement is hereby amended and restated as follows:
Governing Law; Jurisdiction; Jury Trial. The parties hereby agree that pursuant to 735 Illinois Compiled Statutes 105/5-5 they have chosen that all questions concerning the construction, validity, enforcement and interpretation of this Agreement shall be governed by the internal laws of the State of Illinois, without giving effect to any choice of law or conflict of law provision or rule (whether of the State of Illinois or any other jurisdictions) that would cause the application of the laws of any jurisdictions other than the State of Illinois. Each party hereby irrevocably submits to the exclusive jurisdiction of the state and federal courts sitting in Chicago, Illinois, for the adjudication of any dispute hereunder or in connection herewith or with any transaction contemplated hereby or discussed herein, and hereby irrevocably waives, and agrees not to assert in any suit, action or proceeding, any claim that it is not personally subject to the jurisdiction of any such court, that such suit, action or proceeding is brought in an inconvenient forum or that the venue of such suit, action or proceeding is improper. Each party hereby irrevocably waives personal service of process and consents to process being served in any such suit, action or proceeding by mailing a copy thereof to such party at the address for such notices to it under this Agreement and agrees that such service shall constitute good and sufficient service of process and notice thereof. Nothing contained herein shall be deemed to limit in any way any right to serve process in any manner permitted by law. EACH PARTY HEREBY IRREVOCABLY WAIVES ANY RIGHT IT MAY HAVE TO, AND AGREES NOT TO REQUEST, A JURY TRIAL FOR THE ADJUDICATION OF ANY DISPUTE HEREUNDER OR IN CONNECTION WITH OR ARISING OUT OF THIS AGREEMENT OR ANY TRANSACTION CONTEMPLATED HEREBY.
(c) Section 11(d) of the Registration Rights Agreement (as defined in the Purchase
Agreement) is hereby amended and restated as follows:
All questions concerning the construction, validity, enforcement and interpretation of this Agreement shall be governed by the internal laws of the State of Illinois, without giving effect to any choice of law or conflict of law provision or rule (whether of the State of Illinois or any other jurisdictions) that would cause the application of the laws of any jurisdictions other than the State of Illinois. Each party hereby irrevocably submits to the exclusive jurisdiction of the state and federal courts sitting in Chicago, Illinois, for the adjudication of any dispute hereunder or in connection herewith or with any transaction contemplated hereby or discussed herein, and hereby irrevocably waives, and agrees not to assert in any suit, action or proceeding, any claim that it is not personally subject to the jurisdiction of any such court, that such suit, action or proceeding is brought in an inconvenient forum or that the venue of such suit, action or proceeding is improper. Each party hereby irrevocably waives personal service of process and consents to process being served in any such suit, action or proceeding by mailing a copy thereof to such party at the address for such notices to it under this Agreement and agrees that such service shall constitute good and sufficient service of process and notice thereof. Nothing contained herein shall be deemed to limit in any way any right to serve process in any manner permitted by law. If any provision of this Agreement shall be invalid or unenforceable in any jurisdiction, such invalidity or unenforceability shall not affect the validity or enforceability of the remainder of this Agreement in that jurisdiction or the validity or enforceability of any provision of this Agreement in any other jurisdiction. EACH PARTY HEREBY IRREVOCABLY WAIVES ANY RIGHT IT MAY HAVE TO, AND AGREES NOT TO REQUEST, A JURY TRIAL FOR THE ADJUDICATION OF ANY DISPUTE HEREUNDER OR IN CONNECTION HEREWITH OR ARISING OUT OF THIS AGREEMENT OR ANY TRANSACTION CONTEMPLATED HEREBY.
(d) Section 11 of the Warrant (as defined in the Purchase Agreement) is hereby
amended and restated as follows:
GOVERNING LAW. This Warrant shall be governed by and construed and enforced
in accordance with, and all questions concerning the construction, validity,
interpretation and performance of this Warrant shall be governed by, the internal
laws of the State of Illinois, without giving effect to any choice of law or
conflict of law provision or rule (whether of the State of Illinois or any other
jurisdictions) that would cause the application of the laws of any jurisdictions
other than the State of Illinois. The Company hereby irrevocably submits to
the exclusive jurisdiction of the state and federal courts sitting in Chicago,
Illinois, for the adjudication of any dispute hereunder or in connection herewith
or with any transaction contemplated hereby or discussed herein, and hereby
irrevocably waives, and agrees not to assert in any suit, action or proceeding,
any claim that it is not personally subject to the jurisdiction of any such
court, that such suit, action or proceeding is brought in an inconvenient forum
or that the venue of such suit, action or proceeding is improper. Nothing contained
herein shall be deemed to limit in any way any right to serve process in any
manner permitted by law. Nothing contained herein shall be deemed or operate
to preclude the Holder from bringing suit or taking other legal action against
the Company in any other jurisdiction to collect on the Company's obligations
to the Holder or to enforce a judgment or other court ruling in favor of the
Holder. THE COMPANY HEREBY IRREVOCABLY WAIVES ANY RIGHT IT MAY HAVE TO, AND
AGREES NOT TO REQUEST, A JURY TRIAL FOR THE ADJUDICATION OF ANY DISPUTE HEREUNDER
OR IN CONNECTION WITH OR ARISING OUT OF THIS WARRANT OR ANY TRANSACTION CONTEMPLATED
HEREBY.
(e) Section 27 of the Note (as defined in the Purchase Agreement) is hereby amended and restated as follows:
GOVERNING LAW. This Note shall be construed and enforced in accordance with, and all questions concerning the construction, validity, interpretation and performance of this Note shall be governed by, the internal laws of the State of Illinois, without giving effect to any choice of law or conflict of law provision or rule (whether of the State of Illinois or any other jurisdictions) that would cause the application of the laws of any jurisdictions other than the State of Illinois. The Company hereby irrevocably submits to the exclusive jurisdiction of the state and federal courts sitting in Chicago, Illinois, for the adjudication of any dispute hereunder or in connection herewith or with any transaction contemplated hereby or discussed herein, and hereby irrevocably waives, and agrees not to assert in any suit, action or proceeding, any claim that it is not personally subject to the jurisdiction of any such court, that such suit, action or proceeding is brought in an inconvenient forum or that the venue of such suit, action or proceeding is improper. Nothing contained herein shall be deemed to limit in any way any right to serve process in any manner permitted by law. In the event that any provision of this Note is invalid or unenforceable under any applicable statute or rule of law, then such provision shall be deemed inoperative to the extent that it may conflict therewith and shall be deemed modified to conform with such statute or rule of law. Any such provision which may prove invalid or unenforceable under any law shall not affect the validity or enforceability of any other provision of this Note. Nothing contained herein shall be deemed or operate to preclude the Holder from bringing suit or taking other legal action against the Company in any other jurisdiction to collect on the Company's obligations to the Holder, to realize on any collateral or any other security for such obligations, or to enforce a judgment or other court ruling in favor of the Holder. THE COMPANY HEREBY IRREVOCABLY WAIVES ANY RIGHT IT MAY HAVE TO, AND AGREES NOT TO REQUEST, A JURY TRIAL FOR THE ADJUDICATION OF ANY DISPUTE HEREUNDER OR IN CONNECTION WITH OR ARISING OUT OF THIS NOTE OR ANY TRANSACTION CONTEMPLATED HEREBY.
(f) Section 28(a)(i) of the Note is hereby amended and restated as follows:
the date actual payment of the amount due, in the case of any proceeding in
the courts of Illinois or in the courts of any other jurisdiction that will
give effect to such conversion being made on such date: or
(g) Section 30(n) of the Note (as defined in the Purchase Agreement) is hereby amended and restated as follows:
"Code" means the Illinois Uniform Commercial Code, as in effect
from time to time.
(h) Section 1(a) of the Security Agreement (as defined in the Purchase Agreement) is hereby amended and restated as follows:
Reference is hereby made to the Securities Purchase Agreement and the Notes
for a statement of the terms thereof. All terms used in this Agreement and the
recitals hereto which are defined in the Securities Purchase Agreement, the
Notes or in Articles 8 or 9 of the Uniform Commercial Code as in effect from
time to time in the State of Illinois (the "Code"), and which
are not otherwise defined herein shall have the same meanings herein as set
forth therein; provided that terms used herein which are defined in the
Code as in effect in the State of Illinois on the date hereof shall continue
to have the same meaning notwithstanding any replacement or amendment of such
statute except as the Collateral Agent may otherwise determine.
(i) Section 10(f) of the Security Agreement is hereby amended and restated as follows:
THIS AGREEMENT SHALL BE GOVERNED BY, CONSTRUED AND INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE STATE OF ILLINOIS, EXCEPT AS REQUIRED BY MANDATORY PROVISIONS OF LAW AND EXCEPT TO THE EXTENT THAT THE VALIDITY AND PERFECTION OR THE PERFECTION AND THE EFFECT OF PERFECTION OR NON-PERFECTION OF THE SECURITY INTEREST CREATED HEREBY, OR REMEDIES HEREUNDER, IN RESPECT OF ANY PARTICULAR COLLATERAL ARE GOVERNED BY THE LAW OF A JURISDICTION OTHER THAN THE STATE OF ILLINOIS.
(j) Section 10(g) of the Security Agreement is hereby amended and restated as
follows:
ANY LEGAL ACTION, SUIT OR PROCEEDING WITH RESPECT TO THIS AGREEMENT OR ANY
DOCUMENT RELATED HERETO MAY BE BROUGHT IN STATE AND FEDERAL COURTS SITTING IN
CHICAGO, ILLINOIS, AND APPELLATE COURTS THEREOF, AND, BY EXECUTION AND DELIVERY
OF THIS AGREEMENT, EACH GRANTOR HEREBY ACCEPTS FOR ITSELF AND IN RESPECT OF
ITS PROPERTY, GENERALLY AND UNCONDITIONALLY, THE JURISDICTION OF THE AFORESAID
COURTS. EACH GRANTOR HEREBY EXPRESSLY AND IRREVOCABLY WAIVES, TO THE FULLEST
EXTENT PERMITTED BY LAW, ANY OBJECTION, INCLUDING, WITHOUT LIMITATION, ANY OBJECTION
TO THE LAYING OF VENUE OR BASED ON THE GROUNDS OF FORUM NON CONVENIENS,
WHICH IT MAY NOW OR HEREAFTER HAVE TO THE BRINGING OF ANY SUCH ACTION, SUIT
OR PROCEEDING IN SUCH RESPECTIVE JURISDICTIONS AND CONSENTS TO THE GRANTING
OF SUCH LEGAL OR EQUITABLE RELIEF AS IS DEEMED APPROPRIATE BY THE COURT.
3. Miscellaneous.
(a) Governing Law. This letter agreement shall be governed by and construed
in accordance with the laws of the State of Illinois.
(b) Counterparts. This letter agreement may be executed in counterparts,
each of which shall be deemed an original, but all of which together shall constitute
one and the same instrument.
(c) Effect of Waiver and Amendments. Except as expressly set forth herein, no other term or condition of the Purchase Agreement or any other Transaction Document shall be amended or waived hereby.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK.]
Please confirm our understanding and agreement with respect to the foregoing
matters by signing below.
| Very truly yours, | |
| SOCKET MOBILE, INC. | |
| By: /s/ Xxxxx X. Xxxxxx | |
| Name: Xxxxx X. Xxxxxx | |
| Title: CFO |
| Agreed and Accepted: |
| XXXXXX BAY MASTER FUND LTD. |
| By:/s/ Xxxx Xxxx |
| Name: Xxxx Xxxx |
| Title: Authorized Signatory |
