EXHIBIT 10.1
PURCHASE AGREEMENT
AGREEMENT dated as of January 19, 2010 by and among Inksure Technologies,
Inc., a Delaware corporation (the "Company"), on the one hand, and Smithfield
Fiduciary LLC ("Smithfield") and the Irrevocable Trust of Xxxxx X. Xxxxxxxxxx
U/A dated December 17, 1998, Xxxxxxxx Investment Master Fund LTD, Iroquois
Master Fund, LTD, and Portside Growth and Opportunity Fund (all such entities
being collectively referred to as "Other Holders"; Other Holders and Smithfield
being collectively referred to as "Holders"), on the other hand.
WHEREAS:
A. The Company issued to Holders as of September 30, 2005, Senior
Convertible Promissory Notes totaling $6,000,000 ("Original Notes") issued to
each Holder in the principal amounts listed on Schedule A annexed hereto.
B. As of April 8, 2008, the Original Notes were all converted into Amended
and Restated Senior Secured Convertible Notes ("A&R Notes") issued to each of
the Holders in the amounts shown on Schedule A annexed hereto and an additional
Senior Secured Convertible Notes in the amount of $3,000,000 ("2008 Note") was
issued to Smithfield. The A&R Notes and 2008 Note are herein referred to
collectively as "Existing Notes".
C. The Holders are also the holders of Warrants ("Warrants") to acquire the
number of shares of common stock of the Company listed on Schedule A annexed
hereto, which are separated into Series A Warrants, Series B-1 Warrants and
Series B-2 Warrants, all as shown on Schedule A.
D. On April 8, 2008, the Company, its wholly-owned subsidiaries, Inksure
Inc., 1st Operating, Inc. and Inksure R.F., Inc. (collectively, "Subsidiaries";
Subsidiaries, together with the Company being collectively referred to herein as
"Grantors") granted to Smithfield, as collateral agent ("Collateral Agent"), a
security interest in assets of Grantors.
E. The Company and Holders have agreed that the Company shall purchase
and/or cause others to purchase the Existing Notes, including all accrued and
unpaid interest thereon, for an aggregate purchase price of $3,000,000, with the
intention that the Company will retire the balance of the Existing Notes from
the proceeds of a currently contemplated private placement of Company common
stock.
NOW, THEREFORE, it is agreed as follows:
1. PURCHASE OF NOTES. The Company shall pay and/or cause others to pay to
Holders collectively the sum of $3,000,000 ("Purchase Price") which
will be wire transferred to the account of Smithfield set forth on
Schedule B hereto. The Holders agree that such payment to Smithfield
will be deemed, for all purposes hereunder, to be payment to Holders.
2. At Closing hereunder:
A) Holders shall perform or cause to be performed the following:
(i) Other Holders will execute and deliver to the Company:
(a) the originals of their A&R Notes marked "Paid in
Full";
(b) the Termination of Warrants in the form annexed hereto
as Exhibit 1 ("Warrant Termination") terminating all Warrants of
Other Holders with the original Warrant;
(c) a general release ("General Release") in favor of the
Company in the form of Exhibit 2(a) attached hereto; and
(d) termination of the rights of Other Holders under the
guarantee dated April 8, 2009 by Grantors in the form of Exhibit
3 attached hereto.
(ii) Smithfield will execute and deliver to the Company:
(a) the original of the A&R Note marked "Paid in Full";
(b) an Assignment, in the form of Exhibit 4 annexed hereto,
of its 2008 Note with the original 2008 Note attached thereto,
assigning the 2008 Note to the assignees designated by the
Company;
(c) a Warrant Termination for all its Series B-1 and Series
B-2 Warrants with the original warrants attached;
(d) an Amendment to Series A Warrant ("Warrant Amendment")
in the form annexed hereto as Exhibit 5, with the Series A
Warrant affixed thereto, reducing the maximum number of shares of
Company stock issuable thereunder to 2,183,000 shares, amending
the exercise price to $0.15 per share and making certain other
modifications thereto;
(e) an Assignment, as Collateral Agent thereunder, in the
form of Exhibit 6 attached hereto of all its rights in and under
the Security Agreement to Company's designee together with Forms
UCC-3s assigning its rights as Collateral Agent under existing
filed Forms UCC-1 to such designee;
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(f) an Assignment, in the form of Exhibit 7 attached hereto,
of the Guaranty by Grantors in favor of Smithfield to the
assignees of the 2008 Note; and
(g) a General Release, exclusive of the Series A Warrant, as
amended by the Warrant Amendment in the form of Exhibit 2(b).
B) The Company shall take or cause the following actions to be
taken:
(i) Delivery, by wire transfer to Smithfield, as agent for all
Holders, the sum of $3,000,000.
(ii) Execute and deliver:
(a) the Warrant Amendment to Smithfield; and
(b) a General Release in the form of Exhibit 2(c) in favor
of Other Holders and in the form of Exhibit 2(d) in favor of
Smithfield.
3. HOLDERS REPRESENT AND WARRANT. Holders each represent and warrant to
the Company and its designees, severally and not jointly, as of the
date hereof and as of the Closing Date (as defined below) as follows:
(a) all documents delivered by such Holder under Section 2A
hereof are complete and accurate originals thereof and have not
been modified or amended in any manner; and
(b) such Holder is duly organized and validly existing, owns
the Existing Notes and Warrants listed next to its name on
Schedule A free and clear of all liens and encumbrances and has
the absolute right and authority to execute and deliver the
documents being delivered by it hereunder pursuant to Section
2.A. above. All corporate, governmental and other approvals
necessary for the execution and delivery thereof have been
obtained by such Holder and are in full force and effect and
unmodified.
4. COMPANY REPRESENTS AND WARRANTS. The Company represents and warrants
to the Holders, as of the date hereof and as of the Closing Date, that
(a) the Company is duly organized and qualified to do
business in the State of Delaware and has the absolute right and
authority to execute all documents being delivered by it
hereunder pursuant to Section 2B above. All corporate,
governmental and other approvals necessary for the execution and
delivery thereof and payment of funds hereunder have been
obtained and are in full force and unmodified;
3
(b) Since December 31, 2008, the Company has filed all
reports, schedules, forms, statements and other documents
required to be filed by it with the SEC pursuant to the reporting
requirements of the Securities Exchange Act of 1934 (the "1934
Act") (all of the foregoing filed prior to the date hereof and
all exhibits included therein and financial statements, notes and
schedules thereto and documents incorporated by reference therein
being hereinafter referred to as the "SEC Documents"). As of
their respective filing dates, the SEC Documents complied in all
material respects with the requirements of the 1934 Act and the
rules and regulations of the SEC promulgated thereunder
applicable to the SEC Documents, and none of the SEC Documents,
at the time they were filed with the SEC, contained any untrue
statement of a material fact or omitted to state a material fact
required to be stated therein or necessary in order to make the
statements therein, in the light of the circumstances under which
they were made, not misleading. As of their respective filing
dates, the financial statements of the Company included in the
SEC Documents complied as to form in all material respects with
applicable accounting requirements and the published rules and
regulations of the SEC with respect thereto. Such financial
statements have been prepared in accordance with generally
accepted accounting principles, consistently applied, during the
periods involved (except (i) as may be otherwise indicated in
such financial statements or the notes thereto, or (ii) in the
case of unaudited interim statements, to the extent they may
exclude footnotes or may be condensed or summary statements) and
fairly present in all material respects the financial position of
the Company as of the dates thereof and the results of its
operations and cash flows for the periods then ended (subject, in
the case of unaudited statements, to normal year-end audit
adjustments); and
(c) There is no material non-public information of or
concerning the Company that has not been disclosed to the
Holders.
5. CLOSING. The Closing hereunder shall take place on January 19, 2010
(the "Closing Date") through an escrow with Xxxxxxx Xxxxxxxx
Offenkrantz PC, acting Company counsel and as escrow agent therefor.
6. NOTICES.
(a) Any notice, demand, consent, election, offer, approval,
request or other communication (collectively, a "notice")
required or permitted under this Agreement must be in writing and
either delivered personally or sent by nationally recognized
overnight courier or by facsimile transmission, provided that the
sender of such transmission can produce evidence of electronic
confirmation that such notice was received by the party to whom
it was transmitted. A notice delivered personally will be deemed
given only when receipt is acknowledged in writing by the person
to whom it is delivered. A notice that is given by facsimile
transmission shall be deemed given only when the sender receives
electronic confirmation such notice was received to by the party
to whom it was transmitted.
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(b) Notices shall be addressed as follows:
If to Holders At the address set forth on Schedule A
If to Company: c/o Lichter Xxxxxxxx Offenkrantz PC
000 Xxxxx Xxxxxx - 00xx Xx.
Xxx Xxxx, XX 00000
Attention: Xxxxxxx Xxxxxxxx, Esq.
Facsimile: 000-000-0000
(c) Any party may designate, by notice to all of the others,
substitute addresses or addressees for notices; and, thereafter,
notices are to be directed to those substitute addresses or
addressees. Notice by an attorney for any party shall constitute
valid notice hereunder.
7. MISCELLANEOUS.
7.1 COMPLETE AGREEMENT. This Agreement constitutes the complete and
exclusive statement of the agreement among the parties with
respect to the subject matter thereof. It supersedes all prior
written and oral statements, including any prior representation,
statement, condition or warranty and may not be changes orally
but only in writing executed by the parties hereto.
7.2 APPLICABLE LAW. All questions concerning the construction,
validity and interpretation of this Agreement and the performance
of the obligations imposed by this Agreement shall be governed by
the laws of the State of New York.
7.3 ARTICLE AND SECTION TITLES. The headings herein are inserted as a
matter of convenience only and do not define, limit or describe
the scope of this Agreement or the intent of the provisions
hereof.
7.4 BINDING PROVISIONS. This Agreement is binding upon, and inures to
the benefit of, the parties hereto and their respective heirs,
executors, administrators, personal and legal representatives,
successors and permitted assigns.
7.5 EXCLUSIVE JURISDICTION AND VENUE; JURY TRIAL WAIVER. Any suit
involving any dispute or matter arising under this Agreement may
only be brought in the United States District Court for the
Southern District of New York or any New York State Court located
in New York County having jurisdiction over the subject matter of
the dispute or matter. All parties hereby consent to the exercise
of personal jurisdiction by any such court with respect to any
such proceeding. The parties hereby waive any right they may have
to a trial by jury in any action or proceeding arising under this
Agreement.
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7.6 TERMS. Common nouns and pronouns shall be deemed to refer to the
masculine, feminine, neuter, singular and plural, as the identity
of the Person may in the context require.
7.7 SEPARABILITY OF PROVISIONS. Each provision of this Agreement
shall be considered separable; and if, for any reason, any
provision or provisions herein are determined to be invalid and
contrary to any existing or future law, such invalidity shall not
impair the operation of or affect those portions of this
Agreement which are valid.
7.8 COUNTERPARTS. This Agreement may be executed simultaneously in
two or more counterparts, each of which shall be deemed an
original and all of which, when taken together, constitute one
and the same document. The signature of any party, whether
original, facsimile or via email, to any counterpart shall be
deemed a signature to, and may be appended to, any other
counterpart.
[SIGNATURES ON FOLLOWING PAGE]
6
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first written above.
NKSURE TECHNOLOGIES, INC., A DELAWARE
CORPORATION
By: /s/ Xxxx Xxxxx
------------------
Xxxx Xxxxx
Chairman of the Board
HOLDERS:
SMITHFIELD FIDUCIARY LLC
By: Highbridge Capital Management, LLC, its
Trading Manager
By:/s/ Xxxx X. Xxxxxxxx
-----------------------
Xxxx X. Xxxxxxxx
IRREVOCABLE TRUST OF XXXXX X. XXXXXXXXXX
U/A DATED DECEMBER 17, 1998
By:/s/ Xxxxx Xxxxxxxxxx
-----------------------
Trustee
XXXXXXXX INVESTMENT MASTER FUND LTD
By:/s/ Xxxxxxx Xxxxxxxx
-----------------------
Xxxxxxx Xxxxxxxx
IROQUOIS MASTER FUND, LTD
By: /s/ Xxxxxxx Xxxx
--------------------
Xxxxxxx X. Xxxx, Authorized Signatory
PORTSIDE GROWTH AND OPPORTUNITY FUND
By: /s/ Xxxx Xxxxxxx
--------------------
Xxxx Xxxxxxx
Authorized Signatory
7
SCHEDULE A
SECURITIES SCHEDULE
(1) (2) (3) (4) (5) (6) (7) (8)
---------------------- -------------------------------- ------------------ ------------------- ------------------ ------------------ ------------------- ------------------
AGGREGATE AGGREGATE
PRINCIPAL AMOUNT PRINCIPAL AMOUNT NUMBER OF SERIES ALLOCATION OF
OF AMENDED AND OF NUMBER OF SERIES B-1 WARRANT NUMBER OF SERIES $3,000,000
INVESTOR ADDRESS AND FACSIMILE NUMBER RESTATED NOTES NEW NOTES A WARRANT SHARES SHARES B-2 WARRANT SHARES PURCHASE PRICE
--------------------- -------------------------------- ------------------ ------------------- ------------------ ------------------ ------------------- ------------------
Smithfield Fiduciary c/o Highbridge Capital $4,700,000 $3,000,000 3,570,337 7,833,333 5,000,000 $2,601,035
LLC Management, LLC
0 Xxxx 00xx Xxxxxx, 00xx Xx.
Xxx Xxxx, XX 00000
Attn: Xxxx Xxxxxxxxx
Fax: 000-000-0000
Tel: 000-000-0000
Residence: Cayman Islands
--------------------- -------------------------------- ------------------ ------------------- ------------------ ------------------ ------------------- ------------------
The Irrevocable c/o Lineberger & Co., LLC $ 300,000 0 0 500,000 0 $ 101,339
Trust of Xxxxx X. 0000 Xxxxxx Xxxx Xx.
Xxxxxxxxxx u/a Xxxxxx, XX 00000
12/17/98 Attn: Xxxxx Xxxxxxxxxx
Fax: 000-000-0000
Tel: 000-000-0000
--------------------- -------------------------------- ------------------ ------------------- ------------------ ------------------ ------------------- ------------------
Xxxxxxxx Investment c/x Xxxxxxxx Capital, LLC, $ 178,655 0 0 395,958 0 $ 60,349
Master Fund Ltd. East 58th Street, 28th Fl.
Xxx Xxxx, XX 00000
--------------------- -------------------------------- ------------------ ------------------- ------------------ ------------------ ------------------- ------------------
Iroquois Master Fund Iroquois Master Fund, Ltd. $ 250,000 0 0 416,667 0 $ 84,449
Ltd. 000 Xxxxxxxxx Xxx., 00xx Xx.
Xxx Xxxx, XX 00000
Attn: Xxxxxx Xxxxxxxxx
Fax: 000-000-0000
Tel: 000-000-0000
--------------------- -------------------------------- ------------------ ------------------- ------------------ ------------------ ------------------- ------------------
Portside Growth and c/o Ramius LLC $ 452,425 0 0 854,042 0 $ 152,828
Opportunity Fund 000 Xxxxxxxxx Xxx., 00xx Xx.
Xxx Xxxx, XX 00000
Attn: Xxxx Xxxxx
Fax: 000-000-0000
Tel: 000-000-0000
Residence: Cayman Islands
---------------------- -------------------------------- ------------------ ------------------- ------------------ ------------------ ------------------- ------------------
TOTALS $5,881,080 $3,000,000 $3,000,000
---------------------- -------------------------------- ------------------ ------------------- ------------------ ------------------ ------------------- ------------------
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SCHEDULE B
WIRE TRANSFER INSTRUCTION
SMITHFIELD FIDUCIARY LLC- WIRE TRANSFER INSTRUCTIONS
Citibank
ABA#000000000
A/c: Bear Xxxxxxx Securities Group
A/c # 09253186
FBO: Smithfield Fiduciary LLC
A/c # 102-25642
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EXHIBIT 1
TERMINATION OF WARRANT
The undersigned holder of a Series B-1 and B-2 Warrants to purchase
7,833,333 and 5,000,000 shares of Common Stock of Inksure Technologies, Inc.
hereby terminates the Warrants effective immediately, not having exercised any
rights thereunder.
Dated: January 14, 2010 Smithfield Fiduciary LLC
By: Highbridge Capital Management, LLC,
Its Trading Manager
By:/s/ Xxxx X. Xxxxxxxx
-----------------------
Xxxx X. Xxxxxxxx
10
EXHIBIT 1
TERMINATION OF WARRANT
The undersigned holder of a Series B-1 Warrant to purchase 500,000 shares
of Common Stock of Inksure Technologies, Inc. hereby terminates the Warrant
effective immediately, not having exercised any rights thereunder.
Dated: 1/19/10 Irrevocable Trust of Xxxxx X. Xxxxxxxxxx
U/A dated December 17, 1998
By:/s/ Xxxxx Xxxxxxxxxx
-----------------------
Trustee
11
EXHIBIT 1
TERMINATION OF WARRANT
The undersigned holder of a Series B-1 Warrant to purchase 395,958 shares
of Common Stock of Inksure Technologies, Inc. hereby terminates the Warrant
effective immediately, not having exercised any rights thereunder.
Dated: January 13, 2010 Xxxxxxxx Investment Master Fund Ltd.
By:/s/ Xxxxxxx Xxxxxxxx
-----------------------
Xxxxxxx Xxxxxxxx
12
EXHIBIT 1
TERMINATION OF WARRANT
The undersigned holder of a Series B-1 Warrant to purchase 416,667 shares
of Common Stock of Inksure Technologies, Inc. hereby terminates the Warrant
effective immediately, not having exercised any rights thereunder.
Dated: 1/14/10
/s/ Xxxxxxx Xxxx
----------------
Xxxxxxx X. Xxxx, Authorized Signatory
Iroquois Master Fund, Ltd.
13
EXHIBIT 1
TERMINATION OF WARRANT
The undersigned holder of a Series B-1 Warrant to purchase 854,042 shares
of Common Stock of Inksure Technologies, Inc. hereby terminates the Warrant
effective immediately, not having exercised any rights thereunder.
Dated: January 13, 2010 PORTSIDE GROWTH AND OPPORTUNITY FUND
/s/ Xxxx Xxxxxxx
----------------
Xxxx Xxxxxxx
Authorized Signatory
14
EXHIBIT 2(A)
GENERAL RELEASE
TO ALL TO WHOM THESE PRESENTS SHALL COME OR MAY CONCERN,
KNOW THAT IRREVOCABLE TRUST OF XXXXX X. XXXXXXXXXX U/A DATED DECEMBER 17, 1998
as RELEASOR,
in consideration of the sum of ONE HUNDRED-ONE THOUSAND THREE HUNDRED
THIRTY-NINE and No/100 ($101,339.00) Dollars,
received from Inksure Technologies, Inc.,
as RELEASEE,
receipt whereof is hereby acknowledged, releases and discharges the RELEASEES
and RELEASEES' respective current and former general partners, limited partners,
shareholders, directors, officers, employees, successors and assigns from all
actions, causes of action, suits, debts, dues, sums of money, accounts,
reckonings, bonds, bills, specialties, covenants, contracts, controversies,
agreements, promises, variances, trespasses, damages, judgments, extents,
executions, claims, and demands whatsoever, in law, admiralty or equity
(collectively "Claims") which against the RELEASEE, the RELEASOR, RELEASOR'S
successors and assigns ever had, now have or hereafter can, shall or may have,
for, upon, or by reason of any matter, cause or thing whatsoever from the
beginning of the world to the day of the date of this RELEASE relating to any
promissory notes, warrants or options issued by the Releasee and any documents
or instruments executed and/or delivered by Releasee and/or its subsidiaries in
connection therewith.
The words "RELEASOR" and "RELEASEE" include all releasors and all releasees
under this RELEASE.
This RELEASE may not be changed orally.
IN WITNESS WHEREOF, THE RELEASOR HAS CAUSED THIS RELEASE TO BE EXECUTED BY
ITS DULY AUTHORIZED OFFICERS AND ITS CORPORATE SEAL TO BE HEREUNTO AFFIXED ON
1/19/10________.
IN PRESENCE OF: IRREVOCABLE TRUST OF XXXXX X. XXXXXXXXXX U/A
DATED DECEMBER 17, 1998
By:/s/ Xxxxx Xxxxxxxxxx
-----------------------
Trustee
15
EXHIBIT 2(A)
GENERAL RELEASE
TO ALL TO WHOM THESE PRESENTS SHALL COME OR MAY CONCERN,
KNOW THAT XXXXXXXX INVESTMENT MASTER FUND LTD.
as RELEASOR,
in consideration of the sum of SIXTY THOUSAND THREE HUNDRED AND FORTY-NINE and
No/100 ($60,349.00) Dollars,
received from Inksure Technologies, Inc.,
as RELEASEE,
receipt whereof is hereby acknowledged, releases and discharges the RELEASEES
and RELEASEES' respective current and former general partners, limited partners,
shareholders, directors, officers, employees, successors and assigns from all
actions, causes of action, suits, debts, dues, sums of money, accounts,
reckonings, bonds, bills, specialties, covenants, contracts, controversies,
agreements, promises, variances, trespasses, damages, judgments, extents,
executions, claims, and demands whatsoever, in law, admiralty or equity
(collectively "Claims") which against the RELEASEE, the RELEASOR, RELEASOR'S
successors and assigns ever had, now have or hereafter can, shall or may have,
for, upon, or by reason of any matter, cause or thing whatsoever from the
beginning of the world to the day of the date of this RELEASE relating to any
promissory notes, warrants or options issued by the Releasee and any documents
or instruments executed and/or delivered by Releasee and/or its subsidiaries in
connection therewith.
The words "RELEASOR" and "RELEASEE" include all releasors and all releasees
under this RELEASE.
This RELEASE may not be changed orally.
IN WITNESS WHEREOF, THE RELEASOR HAS CAUSED THIS RELEASE TO BE EXECUTED BY
ITS DULY AUTHORIZED OFFICERS AND ITS CORPORATE SEAL TO BE HEREUNTO AFFIXED ON
1/19/10________.
IN PRESENCE OF: XXXXXXXX INVESTMENT MASTER FUND LTD.
By:/s/ Xxxxxxx Xxxxxxxx
-----------------------
Xxxxxxx Xxxxxxxx
16
EXHIBIT 2(A)
GENERAL RELEASE
TO ALL TO WHOM THESE PRESENTS SHALL COME OR MAY CONCERN,
KNOW THAT IROQUOIS MASTER FUND, LTD.
as RELEASOR,
in consideration of the sum of EIGHTY FOUR THOUSAND FOUR HUNDRED FORTY NINE and
No/100 ($84,449.00) Dollars,
received from Inksure Technologies, Inc.,
as RELEASEE,
receipt whereof is hereby acknowledged, releases and discharges the RELEASEES
and RELEASEES' respective current and former general partners, limited partners,
shareholders, directors, officers, employees, successors and assigns from all
actions, causes of action, suits, debts, dues, sums of money, accounts,
reckonings, bonds, bills, specialties, covenants, contracts, controversies,
agreements, promises, variances, trespasses, damages, judgments, extents,
executions, claims, and demands whatsoever, in law, admiralty or equity
(collectively "Claims") which against the RELEASEE, the RELEASOR, RELEASOR'S
successors and assigns ever had, now have or hereafter can, shall or may have,
for, upon, or by reason of any matter, cause or thing whatsoever from the
beginning of the world to the day of the date of this RELEASE relating to any
promissory notes, warrants or options issued by the Releasee and any documents
or instruments executed and/or delivered by Releasee and/or its subsidiaries in
connection therewith.
The words "RELEASOR" and "RELEASEE" include all releasors and all releasees
under this RELEASE.
This RELEASE may not be changed orally.
IN WITNESS WHEREOF, THE RELEASOR HAS CAUSED THIS RELEASE TO BE EXECUTED BY
ITS DULY AUTHORIZED OFFICERS AND ITS CORPORATE SEAL TO BE HEREUNTO AFFIXED ON
1/19/10________.
IN PRESENCE OF:
By: /s/ Xxxxxxx Xxxx
--------------------
Xxxxxxx X. Xxxx, Authorized Signatory
17
EXHIBIT 2(A)
GENERAL RELEASE
TO ALL TO WHOM THESE PRESENTS SHALL COME OR MAY CONCERN,
KNOW THAT PORTSIDE GROWTH AND OPPORTUNITY FUND
as RELEASOR,
in consideration of the sum of ONE HUNDRED FIFTY-TWO THOUSAND EIGHT HUNDRED
TWENTY-EIGHT and No/100 ($152,828.00) Dollars,
received from Inksure Technologies, Inc.,
as RELEASEE,
receipt whereof is hereby acknowledged, releases and discharges the RELEASEES
and RELEASEES' respective current and former general partners, limited partners,
shareholders, directors, officers, employees, successors and assigns from all
actions, causes of action, suits, debts, dues, sums of money, accounts,
reckonings, bonds, bills, specialties, covenants, contracts, controversies,
agreements, promises, variances, trespasses, damages, judgments, extents,
executions, claims, and demands whatsoever, in law, admiralty or equity
(collectively "Claims") which against the RELEASEE, the RELEASOR, RELEASOR'S
successors and assigns ever had, now have or hereafter can, shall or may have,
for, upon, or by reason of any matter, cause or thing whatsoever from the
beginning of the world to the day of the date of this RELEASE relating to any
promissory notes, warrants or options issued by the Releasee and any documents
or instruments executed and/or delivered by Releasee and/or its subsidiaries in
connection therewith.
The words "RELEASOR" and "RELEASEE" include all releasors and all releasees
under this RELEASE.
This RELEASE may not be changed orally.
IN WITNESS WHEREOF, THE RELEASOR HAS CAUSED THIS RELEASE TO BE EXECUTED BY
ITS DULY AUTHORIZED OFFICERS AND ITS CORPORATE SEAL TO BE HEREUNTO AFFIXED ON
JANUARY 13, 2010.
IN PRESENCE OF: PORTSIDE GROWTH AND OPPORTUNITY FUND
By: /s/ Xxxx Xxxxxxx
--------------------
Xxxx Xxxxxxx
Authorized Signatory
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EXHIBIT 2(B)
GENERAL RELEASE
TO ALL TO WHOM THESE PRESENTS SHALL COME OR MAY CONCERN,
KNOW THAT Smithfield Fiduciary LLC
as RELEASOR,
in consideration of the sum of Two Million Six Hundred One Thousand Thirty-Five
Dollars and No/100 ($2,601,035.00) Dollars,
received from Inksure Technologies, Inc.,
as RELEASEE,
receipt whereof is hereby acknowledged, releases and discharges the RELEASEES
and RELEASEES' respective current and former general partners, limited partners,
shareholders, directors, officers, employees, successors and assigns from all
actions, causes of action, suits, debts, dues, sums of money, accounts,
reckonings, bonds, bills, specialties, covenants, contracts, controversies,
agreements, promises, variances, trespasses, damages, judgments, extents,
executions, claims, and demands whatsoever, in law, admiralty or equity
(collectively "Claims") which against the RELEASEE, the RELEASOR, RELEASOR'S
successors and assigns ever had, now have or hereafter can, shall or may have,
for, upon, or by reason of any matter, cause or thing whatsoever from the
beginning of the world to the day of the date of this RELEASE relating to any
promissory notes, warrants or options issued by the Releasee and any documents
or instruments executed and/or delivered by Releasee and/or its subsidiaries in
connection therewith, except for any liabilities or obligations under the
certain Series A Warrant dated April 8, 2008, as amended by First Amendment
dated of even date herewith.
The words "RELEASOR" and "RELEASEE" include all releasors and all releasees
under this RELEASE.
This RELEASE may not be changed orally.
IN WITNESS WHEREOF, THE RELEASOR HAS CAUSED THIS RELEASE TO BE EXECUTED BY
ITS DULY AUTHORIZED OFFICERS AND ITS CORPORATE SEAL TO BE HEREUNTO AFFIXED ON
JANUARY 19, 2010____.
IN PRESENCE OF: SMITHFIELD FIDUCIARY LLC
BY: HIGHBRIDGE CAPITAL MANAGEMENT, LLC,
ITS TRADING MANAGER
By: /s/ Xxxx X. Xxxxxxxx
------------------------
Xxxx X. Xxxxxxxx
19
EXHIBIT 2(C)
GENERAL RELEASE
TO ALL TO WHOM THESE PRESENTS SHALL COME OR MAY CONCERN,
KNOW THAT INKSURE TECHNOLOGIES, INC.,
as RELEASOR,
in consideration of the sum of TEN and No/100 ($ 10.00) Dollars,
received from the PORTSIDE GROWTH AND OPPORTUNITY FUND
as RELEASEE,
receipt whereof is hereby acknowledged, releases and discharges the RELEASEES
and RELEASEES' respective current and former general partners, limited partners,
shareholders, directors, officers, employees, successors and assigns from all
actions, causes of action, suits, debts, dues, sums of money, accounts,
reckonings, bonds, bills, specialties, covenants, contracts, controversies,
agreements, promises, variances, trespasses, damages, judgments, extents,
executions, claims, and demands whatsoever, in law, admiralty or equity
(collectively "Claims") which against the RELEASEE, the RELEASOR, RELEASOR'S
successors and assigns ever had, now have or hereafter can, shall or may have,
for, upon, or by reason of any matter, cause or thing whatsoever from the
beginning of the world to the day of the date of this RELEASE relating to any
promissory notes, warrants or options issued by the Releasor to Releasee and any
documents or instruments executed and/or delivered by Releasor and/or its
subsidiaries in connection therewith.
The words "RELEASOR" and "RELEASEE" include all releasors and all releasees
under this RELEASE.
This RELEASE may not be changed orally.
IN WITNESS WHEREOF, THE RELEASOR HAS CAUSED THIS RELEASE TO BE EXECUTED BY
ITS DULY AUTHORIZED OFFICERS AND ITS CORPORATE SEAL TO BE HEREUNTO AFFIXED ON
1/19/10___________.
IN PRESENCE OF: INKSURE TECHNOLOGIES, INC.
By:/s/ Xxxx Xxxxx
-----------------
Xxxx Xxxxx
Chairman of the Board
20
EXHIBIT 2(C)
GENERAL RELEASE
TO ALL TO WHOM THESE PRESENTS SHALL COME OR MAY CONCERN,
KNOW THAT INKSURE TECHNOLOGIES, INC.,
as RELEASOR,
in consideration of the sum of TEN and No/100 ($ 10.00) Dollars,
received from the IROQUOIS MASTER FUND, LTD.
as RELEASEE,
receipt whereof is hereby acknowledged, releases and discharges the RELEASEES
and RELEASEES' respective current and former general partners, limited partners,
shareholders, directors, officers, employees, successors and assigns from all
actions, causes of action, suits, debts, dues, sums of money, accounts,
reckonings, bonds, bills, specialties, covenants, contracts, controversies,
agreements, promises, variances, trespasses, damages, judgments, extents,
executions, claims, and demands whatsoever, in law, admiralty or equity
(collectively "Claims") which against the RELEASEE, the RELEASOR, RELEASOR'S
successors and assigns ever had, now have or hereafter can, shall or may have,
for, upon, or by reason of any matter, cause or thing whatsoever from the
beginning of the world to the day of the date of this RELEASE relating to any
promissory notes, warrants or options issued by the Releasor to Releasee and any
documents or instruments executed and/or delivered by Releasor and/or its
subsidiaries in connection therewith.
The words "RELEASOR" and "RELEASEE" include all releasors and all releasees
under this RELEASE.
This RELEASE may not be changed orally.
IN WITNESS WHEREOF, THE RELEASOR HAS CAUSED THIS RELEASE TO BE EXECUTED BY
ITS DULY AUTHORIZED OFFICERS AND ITS CORPORATE SEAL TO BE HEREUNTO AFFIXED ON
1/19/10___________.
IN PRESENCE OF: INKSURE TECHNOLOGIES, INC.
By: /s/ Xxxx Xxxxx
------------------
Xxxx Xxxxx
Chairman of the Board
21
EXHIBIT 2(C)
GENERAL RELEASE
TO ALL TO WHOM THESE PRESENTS SHALL COME OR MAY CONCERN,
KNOW THAT INKSURE TECHNOLOGIES, INC.,
as RELEASOR,
in consideration of the sum of TEN and No/100 ($ 10.00) Dollars,
received from the IRREVOCABLE TRUST OF XXXXX X. XXXXXXXXXX U/A DATED
DECEMBER 17, 1998
as RELEASEE,
receipt whereof is hereby acknowledged, releases and discharges the RELEASEES
and RELEASEES' respective current and former general partners, limited partners,
shareholders, directors, officers, employees, successors and assigns from all
actions, causes of action, suits, debts, dues, sums of money, accounts,
reckonings, bonds, bills, specialties, covenants, contracts, controversies,
agreements, promises, variances, trespasses, damages, judgments, extents,
executions, claims, and demands whatsoever, in law, admiralty or equity
(collectively "Claims") which against the RELEASEE, the RELEASOR, RELEASOR'S
successors and assigns ever had, now have or hereafter can, shall or may have,
for, upon, or by reason of any matter, cause or thing whatsoever from the
beginning of the world to the day of the date of this RELEASE relating to any
promissory notes, warrants or options issued by the Releasor to Releasee and any
documents or instruments executed and/or delivered by Releasor and/or its
subsidiaries in connection therewith.
The words "RELEASOR" and "RELEASEE" include all releasors and all releasees
under this RELEASE.
This RELEASE may not be changed orally.
IN WITNESS WHEREOF, THE RELEASOR HAS CAUSED THIS RELEASE TO BE EXECUTED BY
ITS DULY AUTHORIZED OFFICERS AND ITS CORPORATE SEAL TO BE HEREUNTO AFFIXED ON
1/19/10___________.
IN PRESENCE OF: INKSURE TECHNOLOGIES, INC.
By: /s/ Xxxx Xxxxx
------------------
Xxxx Xxxxx
Chairman of the Board
22
EXHIBIT 2(C)
GENERAL RELEASE
TO ALL TO WHOM THESE PRESENTS SHALL COME OR MAY CONCERN,
KNOW THAT INKSURE TECHNOLOGIES, INC.,
as RELEASOR,
in consideration of the sum of TEN and No/100 ($ 10.00) Dollars,
received from the XXXXXXXX INVESTMENT MASTER FUND LTD.
as RELEASEE,
receipt whereof is hereby acknowledged, releases and discharges the RELEASEES
and RELEASEES' respective current and former general partners, limited partners,
shareholders, directors, officers, employees, successors and assigns from all
actions, causes of action, suits, debts, dues, sums of money, accounts,
reckonings, bonds, bills, specialties, covenants, contracts, controversies,
agreements, promises, variances, trespasses, damages, judgments, extents,
executions, claims, and demands whatsoever, in law, admiralty or equity
(collectively "Claims") which against the RELEASEE, the RELEASOR, RELEASOR'S
successors and assigns ever had, now have or hereafter can, shall or may have,
for, upon, or by reason of any matter, cause or thing whatsoever from the
beginning of the world to the day of the date of this RELEASE relating to any
promissory notes, warrants or options issued by the Releasor to Releasee and any
documents or instruments executed and/or delivered by Releasor and/or its
subsidiaries in connection therewith.
The words "RELEASOR" and "RELEASEE" include all releasors and all releasees
under this RELEASE.
This RELEASE may not be changed orally.
IN WITNESS WHEREOF, THE RELEASOR HAS CAUSED THIS RELEASE TO BE EXECUTED BY
ITS DULY AUTHORIZED OFFICERS AND ITS CORPORATE SEAL TO BE HEREUNTO AFFIXED ON
1/19/10___________.
IN PRESENCE OF: INKSURE TECHNOLOGIES, INC.
By: /s/ Xxxx Xxxxx
------------------
Xxxx Xxxxx
Chairman of the Board
23
EXHIBIT 2(D)
GENERAL RELEASE
TO ALL TO WHOM THESE PRESENTS SHALL COME OR MAY CONCERN,
KNOW THAT INKSURE TECHNOLOGIES, INC.,
as RELEASOR,
in consideration of the sum of TEN and No/100 ($10.00) Dollars,
received from SMITHFIELD FIDUCIARY LLC
as RELEASEE,
receipt whereof is hereby acknowledged, releases and discharges the RELEASEES
and RELEASEES' respective current and former general partners, limited partners,
shareholders, directors, officers, employees, successors and assigns from all
actions, causes of action, suits, debts, dues, sums of money, accounts,
reckonings, bonds, bills, specialties, covenants, contracts, controversies,
agreements, promises, variances, trespasses, damages, judgments, extents,
executions, claims, and demands whatsoever, in law, admiralty or equity
(collectively "Claims") which against the RELEASEE, the RELEASOR, RELEASOR'S
successors and assigns ever had, now have or hereafter can, shall or may have,
for, upon, or by reason of any matter, cause or thing whatsoever from the
beginning of the world to the day of the date of this RELEASE relating to any
promissory notes, warrants or options issued by the Releasor to Releasee and any
documents or instruments executed and/or delivered by Releasor and/or its
subsidiaries in connection therewith, except for any liabilities or obligations
under the certain Series A Warrant dated April 8, 2008, as amended by First
Amendment dated of even date herewith.
The words "RELEASOR" and "RELEASEE" include all releasors and all releasees
under this RELEASE.
This RELEASE may not be changed orally.
IN WITNESS WHEREOF, THE RELEASOR HAS CAUSED THIS RELEASE TO BE EXECUTED BY
ITS DULY AUTHORIZED OFFICERS AND ITS CORPORATE SEAL TO BE HEREUNTO AFFIXED ON
1/19/10____________.
IN PRESENCE OF: INKSURE TECHNOLOGIES, INC.
By: /s/ Xxxx Xxxxx
------------------
Xxxx Xxxxx
Chairman of the Board
24
EXHIBIT 3
The undersigned, hereby terminates all its rights under that certain
guarantee dated April 8, 2008 by Inksure, Inc., Inksure RF, Inc. and 1st
Operating, Inc. in favor of the undersigned and certain other parties.
Dated: 1/19/10 IRREVOCABLE TRUST OF XXXXX X. XXXXXXXXXX U/A
DATED DECEMBER 17, 1998
By:/s/ Xxxxx Xxxxxxxxxx
-----------------------
Trustee
25
EXHIBIT 3
The undersigned, hereby terminates all its rights under that certain
guarantee dated April 8, 2008 by Inksure, Inc., Inksure RF, Inc. and 1st
Operating, Inc. in favor of the undersigned and certain other parties.
Dated: 1/19/10 XXXXXXXX INVESTMENT MASTER FUND LTD.
By: /s/ Xxxxxxx Xxxxxxxx
------------------------
Xxxxxxx Xxxxxxxx
Managing Director
26
EXHIBIT 3
The undersigned, hereby terminates all its rights under that certain
guarantee dated April 8, 2008 by Inksure, Inc., Inksure RF, Inc. and 1st
Operating, Inc. in favor of the undersigned and certain other parties.
Dated: 1/14/10 /s/ Xxxxxxx Xxxx
----------------
Xxxxxxx X. Xxxx, Authorized Signatory
Iroquois Master Fund Ltd.
27
EXHIBIT 3
The undersigned, hereby terminates all its rights under that certain
guarantee dated April 8, 2008 by Inksure, Inc., Inksure RF, Inc. and 1st
Operating, Inc. in favor of the undersigned and certain other parties.
Dated: January 13, 2010 PORTSIDE GROWTH AND OPPORTUNITY FUND
/s/ Xxxx Xxxxxxx
----------------
Xxxx Xxxxxxx
Authorized Signatory
28
EXHIBIT 4
ASSIGNMENT OF SENIOR SECURED CONVERTIBLE NOTE
For valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the undersigned, Smithfield Fiduciary LLC, hereby assigns to the
parties listed on Exhibit A annexed hereto all its rights, title and interest in
and to that certain Senior Secured Convertible Note attached hereto in the
principal amount of $3,000,000 issued by Inksure Technologies, Inc., in favor of
the undersigned, the full principal amount of which remains outstanding and
unpaid.
Dated: January 12, 2010 SMITHFIELD FIDUCIARY LLC
By: Highbridge Capital Management, LLC, its
Trading Manager
By:/s/ Xxxx X. Xxxxxxxx
-----------------------
Xxxx X. Xxxxxxxx
29
EXHIBIT A
TO
ASSIGNMENT OF $3,000,000 SENIOR SECURED
CONVERTIBLE
BY
SMITHFIELD FINANCIAL LLC
------------------------------------------------------- ------------------------
ASSIGNEE AMOUNT
------------------------------------------------------- ------------------------
Inksure Technologies, Inc. $1,000,000.00
Sinfo Holding BVI 500,000.00
Peleg Investment Management LLC 500,000.00
Xxxxxx X. Xxxxxxxxxxxx 500,000.00
Xxxxx Xxxxxxxx 175,000.00
T&M Trusteeship and Management Services 200,000.00
Xxxxx Xxxxxxxx 100,000.00
Xxxxxxx Xxxxxxx 25,000.00
------------------------------------------------------- ------------------------
TOTAL $3,000,000.00
------------------------------------------------------- ------------------------
30
EXHIBIT 5
FIRST AMENDMENT TO SERIES A WARRANT
FIRST AMENDMENT dated JANUARY 19, 2010__ to Series A Warrant ("Series A
Warrant") dated April 8, 2008 issued by Inksure Technologies, Inc. ("Issuer") to
Smithfield Fiduciary LLC ("Holder") for 3,570,337 shares of Common Stock of
Issuer.
FOR VALUABLE CONSIDERATION, the receipt and sufficiency of which is hereby
acknowledged, Issuer and Holder agree to modify the Series A Warrant as follows:
1. The number of shares of Common Stock as to which the Series A Warrant
is exercisable is hereby reduced from 3,570,337 to 2,183,000 shares.
2. The Exercise Price, as defined in Section 1(b) of the Series A Warrant
is hereby decreased from $0.60 to $0.15, subject to adjustment for
events occurring hereinafter as provided in the Series A Warrant.
3. Section 2(a) of the Series A Warrant is hereby amended by inserting
after the words "equal to" the word "83(1/3)% of".
4. Section 4 is deleted in its entirety.
5. Except as expressly modified hereby, the Series A Warrant remains in
full force and effect and unmodified.
INKSURE TECHNOLOGIES, INC.
By:/s/ Xxxx Xxxxx
-----------------
Xxxx Xxxxx
Chairman of the Board
SMITHFIELD FIDUCIARY LLC
By: Highbridge Capital Management, LLC, its
Trading Manager
By:/s/ Xxxx X. Xxxxxxxx
-----------------------
Xxxx X. Xxxxxxxx
31
EXHIBIT 6
ASSIGNMENT OF SECURITY AGREEMENT
The undersigned, being the Collateral Agent under that certain Security
Agreement among Inksure Technologies, Inc., Inksure RF Inc., Inksure, Inc. and
1st Operating, Inc., as grantors, and the undersigned as Collateral Agent to the
secured parties thereunder hereto hereby assigns to Xxxxxxx Xxxxxxxx Offenkrantz
PC, as Collateral Agent, all its rights, title and interest thereunder
Dated: January 12, 2010 SMITHFIELD FIDUCIARY LLC
By: Highbridge Capital Management, LLC, its
Trading Manager
By:/s/ Xxxx X. Xxxxxxxx
-----------------------
Xxxx X. Xxxxxxxx
32
EXHIBIT 7
The undersigned, Smithfield Fiduciary LLC, hereby assigns to the parties
listed on Exhibit A annexed hereto all its rights, title and interest under that
certain guarantee dated April 8, 2008 by Inksure, Inc., Inksure RF, Inc. and 1st
Operating, Inc. in favor of the undersigned and certain other parties.
Dated: January 19, 2010 SMITHFIELD FIDUCIARY LLC
By: Highbridge Capital Management, LLC, its
Trading Manager
By:/s/ Xxxx X. Xxxxxxxx
-----------------------
Xxxx X. Xxxxxxxx
33
EXHIBIT A
TO
ASSIGNMENT OF $3,000,000 SENIOR SECURED
CONVERTIBLE
BY
SMITHFIELD FINANCIAL LLC
------------------------------------------------------- ------------------------
ASSIGNEE AMOUNT
------------------------------------------------------- ------------------------
Inksure Technologies, Inc. $1,000,000.00
Sinfo Holding BVI 500,000.00
Peleg Investment Management LLC 500,000.00
Xxxxxx X. Xxxxxxxxxxxx 500,000.00
Xxxxx Xxxxxxxx 175,000.00
T&M Trusteeship and Management Services 200,000.00
Xxxxx Xxxxxxxx 100,000.00
Xxxxxxx Xxxxxxx 25,000.00
------------------------------------------------------- ------------------------
TOTAL $3,000,000.00
------------------------------------------------------- ------------------------
34
