AGREEMENT
AGREEMENT
AGREEMENT
(this
“Agreement”), dated
as
of May 10, 2008 (the “Effective Date”), by and between GSV, Inc., a Delaware
corporation (the “Company”), and D. Emerald Investments Ltd., an Israeli
corporation (the “Investor”).
WITNESSETH:
WHEREAS,
pursuant
to a Purchase Agreement dated as of May 11, 2004 (the “Purchase Agreement”), the
Investor purchased (i) a two-year 8% convertible promissory note in the
principal amount of $200,000 (the “Original Note”), and (ii) a warrant to
purchase up to 1,142,857 shares (“Shares”) of common stock, par value $.001 per
share (“Common Stock”), of the Company, at a price of $.70 per share (the
“Original Warrant” from the Company;
WHEREAS,
the
Investor and the Company extended and renewed the Original Note and Original
Warrant such that the maturity date of the Original Note became July 10, 2008,
the last date on which the Original Note could be converted into Common Stock
became July 10, 2008 and the expiration date of the Warrant became May 10,
2008;
and
WHEREAS,
the
Company and the Investor now desire to amend and restate the terms of the
Original Note and Original Warrant in order to renew and extend again their
respective rights and obligations under such agreements.
NOW,
THEREFORE,
in
consideration of the premises, the mutual covenants herein contained and other
good and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties hereto agree as follows:
1. Amendment
and Restatement of Original Note.
The
Original Note will be amended and restated in the form of Exhibit
A
hereto
(the “Substitute Note”), which shall in all respects substitute for the Original
Note and shall be executed and delivered by the Company to the Investor
contemporaneously with this Agreement, together with delivery by the Company
to
the Investor of the executed consent of Polystick U.S. Corporation in the form
of Exhibit
B
hereto.
2. Amendment
and Restatement of Original Warrant.
The
Original Warrant will be amended and restated in the form of Exhibit
B
hereto
(the “Substitute Warrant”), which shall in all respects substitute for the
Original Warrant and shall be executed and delivered by the Company to the
Investor contemporaneously with this Agreement.
3. Representations
and Warranties of the Company
The
Company hereby represents, warrants and agrees to and with the Investor as
follows:
(a) Organization
and Good Standing.
The
Company is a corporation duly organized, validly existing and in good standing
under the laws of the State of Delaware and has all requisite corporate power
and authority to carry on its business as now conducted. The Company is duly
qualified to transact business and is in good standing in each jurisdiction
in
which the failure so to qualify would have a material adverse effect on its
business or properties. The rights, preferences, privileges and restrictions
granted to or imposed upon the Shares, and the holders thereof are as set forth
in the Company's Certificate of Incorporation and Certificates of Amendment
thereof, Certificate of Merger and Amended and Restated By-laws, true and
complete copies of which have been delivered to Investor and are attached as
Exhibit E to the Purchase Agreement, except insofar as such rights are affected
by the terms of the Company’s Series C preferred stock, the provisions of which
have been previously provided to the Investor.
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(b) Authorization.
All
corporate action on the part of the Company, its officers, directors and
stockholders necessary for the authorization, execution and delivery of this
Agreement and the performance of all obligations of the Company hereunder has
been taken. This Agreement constitutes the 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.
4. Representations
and Warranties of Investor
The
Investor hereby represents, warrants and agrees to and with the Company as
follows:
(a) Organization,
Good Standing.
The
Investor is a corporation duly organized, validly existing and in good standing
under the laws of Israel.
(b) Authorization.
All
corporate action on the part of the Investor, its officers, directors and
stockholders, necessary for the authorization, execution and delivery of this
Agreement and the performance of all obligations of the Investor hereunder
has
been taken. This Agreement constitutes the valid and legally binding obligation
of the Investor, 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.
5. Miscellaneous.
(a) Further
Assurances.
The
parties to this Agreement agree to execute and deliver any and all papers and
documents that may be necessary to carry out the terms of this
Agreement.
(b) Entire
Agreement.
Except
as otherwise provided in this Agreement or the Purchase Agreement, this
Agreement, the Purchase Agreement, the Substitute Note and the Substitute
Warrant contain the entire agreement among the parties hereto and there are
no
agreements, representations or warranties that are not set forth herein. This
Agreement may not be amended, revised, terminated or waived except by an
instrument in writing signed and delivered by the party to be charged
therewith.
(c) Binding
Effect,
Assignment.
This
Agreement shall be binding upon and inure to the benefit of the successors
of
the respective parties hereto.
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(d) Governing
Law and Jurisdiction.
This
Agreement will be deemed to have been made and delivered in New York City and
will be governed as to validity, interpretation, construction, effect and in
all
other respects by the internal laws of the State of New York. Each of the
Company and the Investor hereby (i) agrees that any legal suit, action or
proceeding arising out of or relating to this Agreement will be instituted
exclusively in New York State Supreme Court, County of New York or in the United
States District Court for the Southern District of New York, (ii) waives any
objection to the venue of any such suit, action or proceeding and the right
to
assert that such forum is not a convenient forum for such suit, action or
proceeding, (iii) irrevocably consents to the jurisdiction of the New York
State
Supreme Court, County of New York and the United States District Court for
the
Southern District of New York in any such suit, action or proceeding, (iv)
agrees to accept and acknowledge service of any and all process that may be
served in any such suit, action or proceeding in New York State Supreme Court,
County of New York or in the United States District Court for the Southern
District of New York and (v) agrees that service of process upon it mailed
by
certified mail to its address set forth in Section 5(f) below will be deemed
in
every respect effective service of process upon it in any suit, action or
proceeding.
(e) Notices.
All
notices, consents, requests, demands and other communications herein shall
be in
writing and shall be deemed duly given to any party or parties (a) upon delivery
to the address of the party or parties as specified below if delivered in person
or any courier or if sent by certified or registered mail (return receipt
requested); or (b) upon dispatch if transmitted by confirmed telecopy or other
means of confirmed facsimile transmissions, in each case as addressed to such
party or parties at their addresses as set forth in the Purchase Agreement.
The
parties hereto may designate different addresses or facsimile numbers by written
notice in the aforesaid manner.
(f) Survival
of Representations and Warranties.
The
representations, warranties and covenants of the Company and the Investor
contained in or made pursuant to this Agreement shall survive the execution
and
delivery of this Agreement and shall in no way be affected by any investigation
of the subject matter thereof by or on behalf of the Investor or the Company.
(g) Severability.
In the
event any provision of this Agreement is found to be void and unenforceable
by a
court of competent jurisdiction, the remaining provisions of this Agreement
shall nevertheless be binding upon the parties with the same effect as though
the void or unenforceable part had been severed and deleted.
(h) Counterparts.
This
Agreement may be signed in two counterparts, each of which shall be an original
and both of which together shall constitute one and the same instrument. It
shall not be necessary in making proof of this Agreement or any counterpart
hereof to produce or account for any of the other counterparts.
[Signatures
appear on following page]
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IN
WITNESS WHEREOF,
the
parties hereto have caused this Agreement to be executed as of the date first
written above.
| GSV, INC. | |
| By: /s/ Gilad Gat | |
| Name: Gilad Gat | |
| Title: Chief Executive Officer and President | |
| D. EMERALD INVESTMENTS LTD. | |
| By: /s/ Xxx Xxxxx | |
| Name: Xxx Xxxxx | |
| Title: Manager |
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