Exhibit 10.1
AGREEMENT
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AGREEMENT (this "Agreement"), dated as of May 10, 2005 (the "Effective
Date"), by and between GSV, Inc., a Delaware corporation (the "Company"), and D.
Emerald Investments Ltd., an Israeli corporation (the "Investor").
WITNESSETH:
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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 "Convertible 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 "Warrant", and together with the Convertible Note, the
"Securities") from the Company; and
WHEREAS, the Company and the Investor now desire to amend the terms of the
Convertible Note and Warrant in order to renew and extend 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 of Convertible Note. The Convertible Note is hereby amended as
follows:
(a) Extension of Maturity Date. The first sentence of the first
paragraph of the Convertible Note is hereby deleted and replaced in its entirety
with the following:
FOR VALUE RECEIVED, GSV, INC., a Delaware corporation
("Company"), with its principal office at 000 Xxxx Xxxx
Xxxx, Xxxxxxxx, Xxxxxxxxxxx 00000, hereby promises to pay to
the order of D. EMERALD INVESTMENTS LTD., an Israeli
corporation ("Holder"), with its principal office at 00
Xxxxxxx Xx-Xxxxxxx Xxxxxx, Xxxxxxxxx, Xxxxxx (the "Holder's
Office"), or its assigns, on May 10, 2007 (the "Maturity
Date"), the principal amount of TWO HUNDRED THOUSAND DOLLARS
($200,000) (the "Principal Amount"), in such coin or
currency of the United States of America as at the time of
payment shall be legal tender for the payment of public or
private debts, together with interest on the unpaid balance
of said Principal Amount from time to time outstanding at
the rate of eight percent (8%) per annum ("Contract
Interest").
(b) Extension of Conversion Rights. Section 3.1 of the Convertible Note
is hereby deleted and replaced in its entirety with the following:
3.1 Right to Convert. At any time prior to May 10,
2006, the Holder may, at its option, by written notice to
the Company ("Conversion Notice"), elect to convert this
Note and all accrued and unpaid Contract Interest thereon,
in whole but
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not in part, into Common Stock at the price of $.70 per
share of Common Stock (the "Conversion Price"), as adjusted
to reflect stock dividends, stock splits, recapitalizations
and the like pursuant to Section 3.3 below.
(c) Full Force and Effect. Except as amended hereby, the terms of the
Convertible Note remain in full force and effect.
2. Amendment of Warrant. The Warrant is hereby amended as follows:
(a) Extension of Term. The second full paragraph of the Warrant is
hereby deleted and replaced in its entirety with the following:
Subject to the terms of the Purchase Agreement dated as
of May 11, 2004, by and between the Company and the Holder,
as amended by agreement dated as of May 10, 2005 (the
"Purchase Agreement") and subject to the terms and
conditions hereinafter set forth below, the Holder is
entitled upon surrender of this Warrant and the duly
executed Notice of Exercise form annexed hereto as Appendix
1, at the office of the Company, 000 Xxxx Xxxx Xxxx,
Xxxxxxxx, Xxxxxxxxxxx 00000, or such other office as the
Company shall notify the Holder of in writing (the
"Principal Office"), to purchase from the Company One
Million, One Hundred and Forty-Two Thousand and Eight
Hundred and Fifty-Seven (1,142,857), duly authorized,
validly issued, fully paid and non-assessable shares, free
and clear of all liens, pledges, security interests,
charges, and encumbrances (the "Shares") of the Company's
common stock, $.001 par value per share ("Common Stock").
The purchase price per Share shall be the Exercise Price,
subject to adjustment as set forth in Article 2 below. This
Warrant may be exercised in whole or in part at any time and
from time to time until 5:00 PM, Eastern time, on May 10,
2006 (the "Expiration Date"). Until such time as this
Warrant is exercised in full or expires, the Exercise Price
and the number of Shares shall be subject to adjustment as
hereinafter provided.
(b) Full Force and Effect. Except as amended hereby, the terms of the
Warrant remain in full force and effect.
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.
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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 Convertible
Note and the 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.
(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
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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 6(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
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Name: Gilad Gat
Title: Chief Executive Officer and
President
D. EMERALD INVESTMENTS LTD.
By: /s/ Xxx Xxxxx
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Name: Xxx Xxxxx
Title: Manager
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